Teamsters, Local No. 85

TEAMSTERS, LOCAL NO 85 Brotherhood of Teamsters & Auto Truck Drivers Lo- cal No 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Pacific Maritime Association and Interna- tional Longshoremen's and Warehousemen's Union Brotherhood of Teamsters & Auto Truck Drivers Lo- cal No 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and California Trucking Association Cases 20- CD-266 and 20-CD-453 June 14, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On February 6, 1976, Administrative Law Judge Jerrold H Shapiro issued the attached Decision in this proceeding Thereafter, the Respondent filed ex- ceptions and a supporting brief, the General Counsel filed limited exceptions and a supporting brief, the Pacific Maritime Association filed cross-exceptions and a brief, and the California Trucking Association filed cross-exceptions and a supporting brief as well as an answering brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Brotherhood of Team- sters & Auto Truck Drivers Local No 85, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, San Francisco, California, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order i Both the California Trucking Association and the Respondent have ex cepted to credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponder ante of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc 91 NLRB 544 (1950) enfd 188 F 2d 362 (C A 3 1951) We have carefully examined the record and find no basis for reversing those findings DECISION STATEMENT OF THE CASE 801 JERROLD H SHAPIRO, Administrative Law Judge Upon charges filed by Pacific Maritime Association, herein called PMA, in Case 20-CD-266 on December 2, 1968, and by California Trucking Association, herein called CTA, in Case 20-CD-453 on March 27, 1975, as amended on June 9, 1975, the General Counsel of the National La- bor Relations Board, herein called the Board, by the Re- gional Director of the Board for Region 20, on July 15, 1975, issued an order consolidating these cases and a con- solidated complaint against Brotherhood of Teamsters & Auto Truck Drivers Local No 85, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called Respondent, alleging that Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act, as amended, herein called the Act Respondent filed an answer denying the commission of any unfair labor practices The matter was heard in San Francisco, California, on December 2, 1975 Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following FINDINGS OF FACT I THE EMPLOYERS AND THE LABOR ORGANIZATIONS INVOLVED PMA is an employer association whose members are stevedore, terminal, and shipping companies, and their agents, engaged in the movement of cargo on ocean going vessels to and from Pacific Coast ports of the United States, which, inter alra, is authorized to enter into collec- tive-bargaining agreements on behalf of its members Dur- ing the past calendar year the employer-members of PMA engaged in the movement of cargoes from ports in the State of California to ports outside the State of California, and other States of the United States, and ports in foreign countries, and received in excess of $100,000 in payment thereof CTA is an employer association whose members are en gaged in the trucking and transportation industry in Northern California, which, inter alia, is authorized to en- ter into collective-bargaining agreements on behalf of its members During the past calendar year the employer- members of CTA covered by said collective bargaining agreements derived at least $50,000 gross revenues for serv- ices in connection with the transportation of goods and supplies in interstate commerce Richmond Export Services Company is located in Rich- mond, California, where it is engaged in the business of transporting cargo in interstate commerce During the past calendar year Richmond Export Services Company de- rived in excess of $50,000 for services connected with the transportation of cargo in interstate commerce 224 NLRB No 114 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on the foregoing I find that PMA and CTA and their employer-members and Richmond Export Services Company each constitute an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein The Respondent, Brotherhood of Teamsters & Auto Truck Drivers Local No 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and International Longshoremen's and Warehousemen s Union, herein called ILWU, are labor or- ganizations within the meaning of Section 2(5) of the Act II THE ESSENTIAL QUESTIONS TO BE DECIDED The essential questions to be decided are whether the Respondent filed contractual grievances against several members of CTA for an object proscribed by the Board's Decision and Determination of Disputes issued in Case 20-CD-266 and whether the filing of these grievances con- stitute threats, restraint, or coercion within the meaning of Section 8(b)(4)(ii)(D) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts 1 Case 20-CD-266 This case (20-CD-266) involves the loading and unload- ing of containers used for oceangoing cargo on and off truck chassis at piers in San Francisco, California In early December 1968, PMA filed unfair labor practice charges with the Board alleging in substance that Respondent was engaging in conduct proscribed by Section 8(b)(4)(i) and (ii) of the Act in furtherance of a jurisdictional dispute between Respondent and ILWU over the aforesaid work and therefore was in violation of Section 8(b)(4)(i) and (n)(D) of the Act A Board hearing was conducted from February 1969 through June 15, 1972, pursuant to Section 10(k) of the Act to resolve the jurisdictional dispute Dur- ing the course of the 10(k) hearing evidence was presented which Respondent, in the instant proceeding, does not dis- pute and which establishes that Respondent during De- cember 1968 threatened Marine Terminals Corporation (MTC) and American President Lines (APL), members of PMA, with a work stoppage at various piers in San Fran- cisco, and encouraged individuals employed by Rmgsby Pacific Limited and System 99, members of CTA, to en- gage in refusals in the course of their employment to per- form services at piers in San Francisco, and picketed the operations of seven employer members of PMA I at piers in San Francisco, with an object to force or require MTC to assign the work of loading and unloading containers on truck trailers at piers in San Francisco, including pier 80- A, to employees who were members of or represented by Respondent, rather than to employees who were members of or represented by the ILWU i MTC APL Yamashito Shinhanon United Philippine Lines State Lines Pacific Oriental Terminal and Japan Lines On February 11, 1974, in Cage 20-CD-266 the Board issued its Decision and Determination of Disputes,2 find- ing reasonable cause to believe that Section 8(b)(4)(D) was being violated Accordingly, the Board proceeded to a de- termination of the jurisdictional dispute on its merits and awarded the work involved in the instant unfair labor prac- tice proceeding-"the removal of containers from, and the placing of containers on, truck trailers by MTC at piers located in San Francisco, California"-to the employees represented by the ILWU The Board held that Respon- dent was "not entitled, by means proscribed by Sectior 8(b)(4)(D) of the Act, to force or require the Employer to award the work described" above to Respondent's mem- bers or the employees it represents Furthermore, the Board ordered Respondent to notify the Regional Director in writing whether or not it would refrain from forcing or requiring the Employer, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to [its] members or to employees [it] represents rather than to employees repre- sented by the ILWU " On February 21, 1974, Respondent and its co-respon dent Teamsters Local No 70, by letter, advised the Re- gional Director that they would refrain from forcing or regi.irmg the Employer, by means proscribed by Section 8(b)(4)(D), to award the work in dispute to the employees they represented rather than to employees represented by the ILWU The letter went on to state Respondent's under- standing of the Board's Decision and Determination of Disputes, as follows The foregoing statements of compliance are based upon the Board's Decision and Determination as Lo- cals 70 and 85 understand it Specifically, these Local Unions do not understand the Board to make an award of work contrary to their interests which is pres- ently being performed by employers who are not members of Pacific Maritime Association and with whom they have had existing contractual relationships for container work I make specific reference to motor carriers, and perhaps others, who customarily perform container work, have never hired longshoremen to perform such work, and who have established collec- tive bargaining relationships with Locals 70 and 85, as the case may be Similarly, Locals 70 and 85 do not understand the Board's Decision and Determination to prohibit or in any way interfere with arrangements which the Pacific Maritime Association or its mem- bers may wish to make with such motor carriers or others for container work under conditions wherein employees represented by Locals 70 or 85 may per- form the work Finally it is the understanding of Locals 70 and 85 that the Board's Decision and Determination does not affect any existing contractual relationships relating to container work such as the long-established collective bargaining agreement between Local 70 and Sea Land 2 Brotherhood of Teamsters & A uto Truck Drivers Local No 85 Internation al Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers of Amen ca (Pacific Maritime Association) 208 NLRB 1011 (1974) TEAMSTERS, LOCAL NO If there is any question about the foregoing, I will expect to hear promptly from your office PMA objected, contending that the letter did not constitute full compliance with the Board's award The Regional Di- rector rejected this contention and by letter of April 26, 1974, notified the parties that he was refusing to issue a complaint inasmuch as "there is no evidence to show that [Respondent] has failed to abide by the Decision and De- termination of Disputes, or that it has engaged in any con- duct inconsistent therewith " An appeal was taken from this ruling but was denied by the Board's General Counsel by letter of May 31, 1975, which reads The appeal is denied substantially for those reasons set forth in the Regional Directors letter of April 26, 1974 The statements of understanding contained in the Unions' counsel's letter of February 21, 1974, were not deemed to repudiate or negate the Unions' assur- ances of compliance with the Board's Decision and Determination of Disputes (208 NLRB 1011), since they addressed matters which appear to be outside the ambit of the Board's Decision in these cases More specifically, the Unions' letter did not indicate an in- tent to persist with their objects to obtain work by proscribed means which had been the basis of the charges giving rise to these proceedings The charge in Case 20-CD-453 was filed on March 27, 1975, and following its investigation and concurrently with the issuance of the consolidated complaint in the instant proceeding the Board's Regional Director notified Respon- dent, by letter, that the investigation had established that Respondent was engaging in coercive conduct inconsistent with good faith compliance with the Board's Decision and Determination of Disputes issued in Case 20-CD-266, and in view of this, the prior dismissal of the charges against Respondent in Case 20-CD-266 was rescinded and the case reopened 2 Case 20-CD-453 The charge in this case (20-CD-453) was triggered by events which occurred in connection with the loading and unloading of containers on and off truck chassis at pier 80- A in San Francisco, California The shipping line involved which uses this pier is State Steamship Company which for several years had an oral agreement with an independent forklift service, Globe-Wally, to perform work on the pier including loading and unloading containers on and off truck trailers The practice was for the several motor car- riers involved herein to make arrangements with State either to pick up containers at the pier or deliver them to the pier, where employees of Globe-Wally using forklifts would load and unload the containers on and off the truck trailers Globe-Wally's employees were represented by Re- spondent and covered by the "Local Pickup and Delivery" collective-bargaining agreement Likewise, the employees of each trucking company involved herein were repre- sented by Respondent and covered by the Local Pickup and Delivery collective-bargaining agreement In November 1974, State decided to change its method 85 803 of operation and to use MTC rather than Globe-Wally to load and unload the containers MTC does not use fork lifts, instead it uses straddle carriers, a much larger piece of equipment MTC s employees, who operate straddle car riers, are longshoremen represented by the ILWU In November 1974 when Respondent's business agent, Robert Sick, learned of State s intent to replace Globe- Wally with MTC he spoke to Udl Mehlberg, State's termi- nal superintendent, about the matter Sick indicated he was upset about State's plan to shift the work of loading and unloading the containers at pier 80-A to MTC from Globe-Wally and warned that State "could not proceed with this and that he would shut down" pier 80-A Mehl- berg referred Sick to the Board's 10(k) determination in Case 20-CD-266 and took the position that this determi nation gave State the right to use MTC Sick was not famil- iar with the content of the Board's 10(k) determination and indicated this to Mehlberg, asked him for the citation and stated that before causing any kind of disruption he want- ed to read the Board's determination and consult with Respondent's attorney Sick consulted with Respondent's attorney who, in writing, explained what the award meant Respondent took no economic action, as threatened, and in January 1975 State canceled its agreement with Globe- Wally and entered into an agreement with MTC MTC's employees using straddle carriers, pursuant to this agree- ment, commenced to load and unload the containers on and off the truck trailers on pier 80-A When Sick learned of this he visited the pier and copied the names of the trucking companies who were delivering and picking up the containers which MTC's employees were loading and unloading Mehlberg asked Sick his purpose in writing the names of the trucking companies Sick stated that Respon- dent intended to file "money grievances" against the truck lines but assured Mehlberg that Respondent had no griev- ance with State, that its grievance was against CTA, the trucking companies' bargaining representative On January 29, 1975, and continuing into February 1975, Sick, on behalf of Respondent, filed a series of writ- ten grievances pursuant to the Local Pickup and Delivery collective-bargaining agreement against 10 different truck- ing companies who had delivered and/or picked up con- tainers at pier 80-A and were signatory to this collective- bargaining agreement 3 The grievances which in pertinent part are identical' state that the Employer violated article 47 of the Pickup and Delivery collective-bargaining agree- ment `by having ILWU longshoremen unloading and loading equipment [referring to containers] at pier 80-A State Lines, San Francisco-[date]," and in the portion of the grievance form entitled, "relief being sought" asks for "payment of lost wages for [date] ' The grievances were placed on an agenda for hearing by a grievance panel under the disputes settlement procedures 3 The trucking companies are Alltrans Express Morris Draying Compa ny Pacific Motor Trucking Company S S I Container Shima Transfer Company Shippers Imperial Inc Garden City Trucking Inc Santa Fe Trail Transportation R E Ellis Draying Co Inc and Richmond Export Services Company All except Richmond Export Services Company are rep resented by CTA for purposes of collective bargaining ° All 18 of the grievances filed herein pertain to the loading and unload mg of containers on pier 80-A except one which pertains to pier 96 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the collective-bargaining agreement, but were not heard or decided The cases were not reached for hearing on the date originally scheduled, and before they could be re- scheduled the charge in Case 20-CD-453 was filed by CTA Thereafter, the grievances were held in abeyance by mutual consent of CTA and Respondent pending a deter- mination by the Board in the present case In connection with the grievances filed against three of the trucking companies, Morris Draying Company, Pacific Motor Trucking Company, and Sante Fe Trail Transporta- tion, Business Agent Sick spoke to their representatives Al- dred Wheeler, Gary Adams, and Harold Roach on Janu- ary 29 and 30 and February 11, 1975, respectively Sick told Wheeler that he would have to file a money claim against Morris Draying because the truckdrivers em- ployed by Morris Draying had permitted a steamship company's employees to unload a container from a truck chassis at pier 80-A Wheeler stated that his company had absolutely no control over this work Sick replied that "it was [Morris Draying's] responsibility under the Pickup and Delivery Agreement to require that teamsters load and un load these containers " Wheeler repeated that his company had no control and could do nothing about the matter Sick indicated he "understood" Wheeler's position but would have to file a money claim Sick told Adams that Pacific Motor Trucking Company (PMT) had violated article 47 of the Pickup and Delivery agreement by allowing persons other than teamster forklift operators to unload containers Adams replied that PMT had no control over this work which was the steamship company's responsibility Sick took the position that since PMT was in control of the containers that it had the re- sponsibility to make sure that teamster forklift operators unloaded the containers from the truck trailers 5 Sick told Roach that his company, Santa Fe Trail Trans- portation, had picked up a trailer at State which was load- ed onto the chassis by longshoremen and that he was filing a grievance because this work was claimed by the team- sters Roach replied that Santa Fe Trail Transportation had no control over this work but that it was the steamship company's responsibility Sick stated that he realized this "but it was his job to force the steamship lines through the trucking companies to use teamster labor on forklifts," pointing out that this work had previously been done by teamsters 6 Also on February 3, 1975, H K McDougald, a repre sentative of CTA, the collective-bargaining agent of virtu- ally all of the truckers against whom Respondent has filed grievances , upon receipt of several of the grievances tele- phoned Sick McDougald asked who Sick was claiming lost wages for Sick stated that it was for the "teamster local 85 forklift drivers at the piers" who had been replaced by the ILWU operators McDougald stated that article 47, relied on by Respondent in support of its claim, quite clearly 5 During the aforesaid conversation Sick specifically mentioned Globe Wally however there is no indication of the context in which it was men honed Sick did not testify about this conversation 6 The description of Sick s conversation with Roach is based on Roach s credible testimony Sick specifically denied stating that it was his job to force the steamship lines through the truckers to use teamsters Roach im pressed me as the more trustworthy witness indicated that the operation of power equipment on the piers was at the discretion of the receiver and carrier by mutual agreement McDougald further stated that the mo- tor carriers could not force State to use teamsters rather than ILWU personnel because it was a matter outside their control and, while CTA desired to protect its employer- members who were in the business of operating forklifts,7 that the container problem was outside its control and Sick's fight was with PMA and State Line,8 not with CTA and its employer-members Sick replied, "well CTA ha(s) a lot of juice, maybe you ought to tell your members not to haul these containers into the State Line pier unless our forklift drivers do unload them " B Discussion and Ultimate Findings 1 The Board's authority to reopen Case 20-CD-266 The Board's Decision and Determination of Disputes in Case 20-CD-266 in relevant part awarded the disputed work to the employees employed by PMA's employer- members represented by the ILWU Accordingly, the Board held that Respondent was not entitled to use means proscribed by Section 8(b)(4)(D) to force or require MTC, a member of PMA, to award the disputed work to employ- ees represented by Respondent Furthermore, the Board ordered Respondent to notify the Board's Regional Direc- tor for Region 20, in writing, that it would refrain from engaging in the aforesaid conduct Respondent furnished this written notice which was accepted as being in compli- ance with the 10(k) determination The Board' s Regional Director notified the parties, including Respondent, that `further proceedings are not warranted at this time and, therefore, I am refusing to issue complaint in this [Case 20- CD-266] ' Respondent contends that the Board lacks authority to reopen Case 20-CD-266 because the Board's Rules and Regulations contain no provision for reopening such a case once the charge has been dismissed If Respondent is cor- rect then the allegations in the consolidated complaint per- taining to Case 20-CD-266 must be dismissed since they are time-barred by the 6-month limitation period con- tained in Section 10(b) of the Act Likewise, the allegations pertaining to Case 20-CD-453 must be dismissed inas- much as the scheme of the statute requires that a 10(k) determination be made as a condition precedent to any unfair labor practice proceeding In other words, Respondent's position leads to the conclusion that a writ- ten promise by a respondent union to obey a 10(k) determi- nation, which under the Board's procedures results in the dismissal of the underlying 8(b)(4)(D) charge, would pre- vent the Board from reopening the matter even if respon- dent union thereafter brazenly flouted the determination The injured employer and union would be forced to file a new charge and the Board would be forced to institute another 10(k) proceeding prior to adjudging the respon- 7 Globe Wally was a member of CTA for collective bargaining purposes and as noted above its employees were covered by the same collective bargaining agreement as the trucking companies R PMA represented State and MTC for purposes of collective bargaining with the ILWU TEAMSTERS, LOCAL NO 85 805 dent union in violation of the Act I do not think either the Act or the Board's Rules and Regulations calls for such a result which does violence to Sections 8(b)(4)(D) and 10(k) of the Act Jr my opinion, Respondent's letter to the Board's Re- gional Director promising not to engage in conduct pro- scribed by Section 8(b)(4)(D) to capture the disputed work and the Regional Director's refusal to issue a complaint, based upon the Respondent's promise, constitute an agree- ment between Respondent and the Board which implicitly gives the Board the right to set aside the agreement and reopen Case 20-CD-266 if Respondent fails to comply with its part of the agreement In similar circumstances it has long been settled that where promises embodied in a settlement agreement have been breached, the Board is justified in vacating the agreement and reinstituting the initial proceeding, for, as the Supreme Court has said, where the purpose of a settlement is defeated it becomes the Board's "duty to take fresh steps to prevent frustration of the Act " The Wallace Corporation v N L R B, 323 U S 248, 254 (1944) Although the instant case is apparently one of first impression, the Board in Bechtel9 has indicated that a promise to comply with a 10(k) determination, if accepted by the Board's Regional Director, is analogous to a settlement agreement which unless complied with results in the reopening of the underlying 8(b)(4)(D) charge The Board stated In the 10(k) proceeding involved herein the Board de- termined that the Respondents were not lawfully entitled to engage in certain conduct If that had been an 8(b)(4)(D) proceeding and the Board found that the Respondents had violated the Act, the remedy would have been an order restraining them from doing that which we held they might not lawfully do How ever, Section 10(k) gives a respondent union the op- portunity to forestall such an order by complying with the Board's determination But since the ultimate ob- jective of a 10(k) and an 8(b)(4)(D) proceeding is the same-to obtain cessation of the particular conduct- the measure of compliance should likewise be the same Otherwise, compliance would be meaningless and the statutory purpose of providing an effective voluntary substitute for compulsory remedial action would be thwarted and frustrated In our opinion, the minimal requirement for a find- ing of compliance with a 10(k) determination ought to be a manifested good-faith intent by the particular re- spondents to accept and abide by the Board's determi- nation and to refrain from then and in the future from doing that which the determination has stated may not rightfully be done (At 814) For these reasons I find that if the record establishes Respondent has engaged in conduct, as alleged in the con- solidated complaint, which is proscribed by Section 8(b)(4)(ii)(D) of the Act and constitutes noncompliance with the 10(k) determination in Case 20-CD-266, then the Board may reopen that proceeding and base a violation of 9 Local 595 International Association of Bridge Structural and Ornamental Iron Workers A FL (Bechtel Corporation) 112 NLRB 812 (1955) the Act upon (1) the admittedly unlawful conduct de- scribed above which antedated the 10(k) determination and (2) the conduct alleged in Case 20-CD-453 which postdated the 10(k) determination 10 2 Did Respondent file the contractual grievances against the trucking companies for an object proscribed by Section 8(b)(4)(D) of the Act The sole violation alleged postdating the 10(k) determi- nation is Respondent's act of filing the contractual griev- ances against the trucking companies which the consolidat- ed complaint in substance alleges were filed with an object to force the trucking companies to assign the work of load- ing and unloading containers on and off truck trailers at pier 80-A to teamsters represented by Respondent rather than longshoremen represented by the ILWU, thus violat- ing the Board s 10(k) determination in Case 20-CD-266 and Section 8(b)(4)(ii)(D) of the Act Respondent con- tends, "there is nothing in the Section 10(k) award, nor in the Act, which prohibits the filing of grievances to protest the failure of an employer to permit bargaining unit em- ployees to perform bargaining unit work, even though the employer may have a defense of impossibility," citing, Lo cal 450, International Union of Operating Engineers, AFL- CIO (The Austin Company), 119 NLRB 135 (1957), and Local 373, United Association of Journeymen and Appren tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, (Carleton Brothers Co), 137 NLRB 628 (1962) In other words Respondent urges that it has not sought for its members work that belongs to employees represented by the ILWU, but only asks that the trucking companies comply with their contract with Respondent An evaluation of this contention, which has an attractive simplicity, requires the consideration of two elements (1) Whether an object of Respondent was to force or require the truckers to assign the disputed work to its members rather than to employees who are members of ILWU, and (2) If this was an object, how is it affected because it was pursued through the use of a contractual grievance proce- dure In determining Respondent's object in filing the griev- ances involved herein I have evaluated the totality of the evidence and conclude that an object of Respondent was to assert a jurisdictional claim-to force an assignment of the disputed work to teamsters whom it represented rather than to longshoremen represented by the ILWU-not sim- ply to compel compliance with its collective-bargaining agreement This conclusion is based upon the following considerations (1) The terms of the governing collective-bargaining agreement indicate that the grievances filed by Respondent are palpably without merit 10 I reject General Counsels contention that something less than conduct proscribed by Sec 8(b)(4)(D) is sufficient to prove noncompliance with the Board s 10(k) determination Here the 10(k) determination unambiguously prohibits Respondent from only using means proscribed by Sec 8(b)(4) to capture the disputed work The cases cited by the General Counsel do not involve affirmative conduct but rather involve the question of whether fail ure to give the required written notice constitutes noncompliance which justifies prosecution of an 8(b)(4)(D) charge This is not involved in the instant case 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The grievances, which are identical , assert and Respon- dent contends, that the truckers violated section 1(a) of article 47, entitled "work jurisdiction," which in relevant part provides, "only persons working under the jurisdiction of this Agreement shall load and unload trucks, trail ers, vans or any other type of equipment used in connec- tion with trucks " However, section 2(d) of article 47, enti- tled "Work at Premises of Shippers and Consignees, provides in relevant part, "loading and unloading with me- chanical equipment onto or into trucks , trailers, or vans may be performed by such employees as the Employer and the consignee or shipper may agree " Thus, the section of the agreement which deals specifically with the type of work involved in this case unambiguously allows the truck- ing companies without limitation to enter into an agree- ment with the consignee or shipper concerning the employ- ees who shall perform the disputed work Respondent introduced no evidence to contradict the plain language of the agreement Moreover, that it was not the intent of the collective-bargaining agreement to hold the trucking com- panies responsible for the employment of teamsters to load and unload the containers at the piers is demonstrated fur- ther by the fact that the trucking companies, with Respondent's knowledge, even prior to the effective date of the agreement, lacked control or authority over this work or over the employees who performed the work (2) The trucking companies ' lack of control and authori- ty over the loading and unloading of the containers and the employment of the employees who perform this work, in the circumstances of this case , indicate that the grievances filed by Respondent were tactically calculated to satisfy Respondent's jurisdictional claim to this work t i The grievances charged the trucking companies with vio lating their collective-bargaining agreement "by having ILWU longshoremen unloading and loading equipment at pier 80-A, State Line," and asked for payment of lost wag- es But the decision to employ teamsters or longshoremen was that of State and MTC The truckers had no discretion about this matter It was the decision of State and MTC which Respondent found objectionable Respondent knew that its alleged effort to protect or preserve bargaining unit work by filing the instant grievances was doomed to fail unless State contracted out the disputed work to an em- ployer who employed teamsters rather than longshoremen Likewise Respondent knew that the trucking companies had only two courses of action , they either could continue to deliver and pick up at pier 80-A and pay money dam- ages or terminate their business relationships with State 12 11 Although Respondent makes no claim to represent MTC s employees and did not ask MTC to hire teamsters rather than longshoremen it is no defense inasmuch as the Board has held that the applicability of Sec 8(b)(4)(D) is not limited to competing groups of employees working for the same employer but also extends to attempts as here to force the indirect assignment of work from employees of one employer (MTC) to employees of another (Globe Wally or another independent forklift company repre sented by the Respondent) Local Union No 3 International Brotherhood of Electrical Workers AFL-CIO (Western Electric Company Incorporated) 141 NLRB 888 894 (1963) enfd 339 F 2d 145 (C A 2 1964) 12 Of course there is a third course of action namely fighting the griev ances through the contractual grievance machinery However this is not a realistic alternative inasmuch as the contractual grievance machinery does not end in binding arbitration but in the event of a deadlock the Respon dent may use economic means to enforce its interpretation of the agree The first course, as Respondent must have known, was completely uneconomical and the second course would not have preserved or produced work for the unit employees represented by Respondent , it would instead deprive team- sters employed in the unit-the truckdrivers-of work Thus, it is apparent that Respondent's grievances were self- defeating They could only result in Respondent losing more unit work unless the trucking companies under the threat of the money damages pressured State to assign the disputed work to teamsters or to an employer that em- ployed teamsters As Respondent's business agent, Sick, explained to Trucking Company Superintendent Roach, it was Sick's job "to force the steamship lines through the trucking companies to use teamster labor on the forklifts " These circumstances , in my view, establish that when Sick filed the grievances he filed them with the intent to utilize them as a device to exert pressure on State and MTC through the trucking companies so as to compel an assign- ment of the disputed work to the teamsters represented by Respondent rather than to the longshoremen represented by ILWU (3) That Respondent's grievances were filed against the trucking companies not in good faith to enforce the collec tive-bargaining agreement but as a weapon to satisfy its jurisdictional claim to the work of loading and unloading trucks on pier 80-A is further established by Business Agent Sick's initial reaction to State's use of MTC rather than Globe-Wally and his admission made to Trucking Su- perintendent Roach Upon learning that State intended to replace Globe- Wally with MTC which would result in the replacement of teamsters by longshoremen rather than threaten the truck- ing companies with a contractual grievance if they allowed this to occur or otherwise speak to the trucking companies about the matter, Sick visited State s terminal manager and warned that if State went ahead and replaced Globe-Wally with MTC that Respondent "would shut down the pier " Also, as described earlier, when Trucking Superintendent Roach complained that his company had no control over the disputed work, Sick acknowledged this but explained that it was Sick's job "to force the steamship lines through the trucking companies to use teamster labor on the fork- lifts " Based on the foregoing I am convinced that the record establishes by a preponderance of the evidence that Re- spondent filed the grievances against the trucking compa nies with an object of forcing and requiring the assignment of the work of loading and unloading containers on truck trailers at pier 80-A to employees who were represented by Respondent rather than to employees who were repre- sented by the ILWU and employed by MTC, a member of PMA 1i ment Simply stated the trucking companies were faced with the prospects of a strike if they failed to accede to Respondents demand 13 Having sought the assignment of the disputed work from one group of employees to another the fact that Respondent rests its claim upon its collective bargaining agreement does not detract from the jurisdictional na ture of the dispute (Local 19 International Longshoremen s Association AFL-CIO (Marine Association of Chicago) 151 NLRB 89 94-95 (1965) ) especially where as here Respondents contractual claim was not a bona fide one but a device to satisfy its jurisdictional claim It is because of this last consideration that the cases cited by Respondent supra as well as International Longshoremen s and Warehousemen s Union Local 8 (Waterway TEAMSTERS, LOCAL NO 85 807 In concluding that the record establishes a jurisdictional objective as distinct from solely a cease-doing-business ob- jective, I have relied upon the wording of the grievances- "Company in violation of having violated Art 47, J C 7 Local Pickup and Delivery Agreement by having ILWU Longshoremen (rather than teamsters) unloading and load- ing equipment at pier 80-A"-and the several statements made by Business Agent Sick to trucking company repre- sentatives in connection with the filing of the grievances Sick told Wheeler that it was the trucking company's re- sponsibility to require that "teamsters" rather than "steam- ship employees" perform the disputed work, told Adams that it was the trucking company's responsibility to make sure that "teamsters" rather than other persons did the dis- puted work, told Roach that it was Sick's job to compel the steamship lines to use "teamsters" to perform the disputed work rather than "longshoremen', and told McDougald that the trucking companies should stop doing business with State unless "our forklift drivers" (teamsters) do "the disputed work " I realize that the more typical 8(b)(4)(D) situation in- volves only a single employer while here, as in the typical 8(b)(4)(B) case, there are several involved But the terms of the statute do not expressly limit 8(b)(4)(D) to cases where competing groups of employees are employed by the same employer and the Board has already heard and rejected this contention Local Union No 3 IBEW (Western Elec tric), supra Likewise, the General Counsel is not precluded from proceeding under Section 8(b)(4)(D) because the evi- dence shows that Respondent acted with an object of sub- jecting a neutral employer to pressures designed to cause a cessation of business with the primary employer, i e , an 8(b)(4)(B) object, for, the same set of facts may be cogniz- able under both Section 8(b)(4)(D) as well as 8(b)(4)(B) Local No 5, United Association of Journeymen and Appren tices of the Plumbing and Pipe Fitting Industry of the United States and Canada AFL-CIO (Arthur Venneri Co) v NLRB, 321 F 2d 366, 371 (CAD C), cert denied 375 U S 921 (1963) Here, the wording of the grievances and the oral statements of the Respondent's business agent sup- port a finding that Respondent's grievances seeking money damages were filed with an object, in part, to satisfy Respondent's jurisdictional claim in addition to coercing employees to cease doing business with each other to ac- complish this object 14 Cf International Brotherhood of Electrical Workers, AFL-CIO, Local No 145 (Camanche Machine Tool Company, Inc), 188 NLRB 255 (1971) 3 Did the contractual grievances filed by Respondent constitute impermissible threats, restraint, or coercion within the meaning of Section 8(b)(4)(u) of the Act Section 8(b)(4)(ii)(D), so far as pertinent, makes it an unfair labor practice for a union to "threaten, coerce or Terminals Company) 185 NLRB 186 (1970) are distinguishable from the instant situation 14 The consolidated complaint does not specifically allege this but is worded in terms of Respondent forcing and requiring the trucking compa restrain" any person when an object thereof is forcing any employer to assign particular work to employees in a par- ticular labor organization rather than to employees in an- other labor organization Respondent contends that assum- ing its grievances were filed with the intent of ac- complishing an impermissible object that there is still no unfair labor practice established inasmuch as the filing of a contractual grievance for money damages does not consti tute evidence of ` threats, coercion, or restraint" within the meaning of Section 8(b)(4)(u), citing Sheet Metal Workers International Association Local Union No 49 (Los Alamos Constructors Inc), 206 NLRB 473 (1973) In this regard, the cases seem to hold that resort to contractual procedures for the assessment of monetary damages against employers for alleged violations of work assignment provisions may or may not constitute impermissible threats, coercion, or restraint, depending on the circumstances See Acco Con struction Equipment, Inc v NLRB , 511 F 2d 848 (C A 9, 1975), enfg International Union of Operating Engineers, Lo cal Union No 12 (Acco Construction Equipment, Inc), 204 NLRB 742 (1973), and Associated General Contractors of California Inc v NLRB , 514 F 2d 433 (C A 9, 1975), reversing Southern California Pipe Trades District Council No 16 of the United Association etc (Associated General Contractors of California, Inc), 207 NLRB 698 (1973), and Los Alamos Constructors supra For, when Congress used `coercion in [Section 8(b)(4)(D)] it did not intend to pro- scribe only strikes or picketing, but intended to reach any form of economic pressure of a compelling or restraining nature " Associated General Contractors of Calif v NLRB , supra at 438-439 Here, as found supra, the circumstances disclose that Respondent's contractual grievances seeking money dam ages were a contractual pretense adopted to mask coercive pressure tactics in an effort to satisfy Respondent's juris dictional claim The grievances were palpably without mer- it Respondent knew that the trucking companies had no control over the disputed work, and the admission of Busi- ness Agent Sick that even though the trucking companies lacked control the grievances were filed because "it was (Sick s) job to force the steamship lines through the truck- ing companies to use teamster labor on forklifts, are sig- nificant indications that the grievances were filed as a coer- cive tactic Also relevant in evaluating the coercive nature of the grievances is the fact that the collective-bargaining agreement's grievance procedure governing the disposition of the grievances does not culminate in binding arbitration, rather the Respondent has the option to strike and picket the trucking companies if the grievances are not resolved and Respondent's three representatives on the grievance committee refuse to agree to arbitration Thus, the griev- ances from the start contained an implicit threat of eco- nomic reprisals if the truckers did not aid the Respondent in its jurisdictional claim for the disputed work These cir- cumstances in their totality indicate that Respondent's use mes to reassign the disputed work I am convinced however that the coin plaint as worded is sufficient to encompass the above finding and in any event the matter was fully and fairly tried 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the contractual grievance procedure in connection with its demand for payment of lost wages amounted to "thinly disguise(d) clearly coercive tactics " Southern California Pipe Trades District Council 16, supra 207 NLRB 698, 700 It is for these reasons that Los Alamos Constructors, relied upon by Respondent, is significantly distinguishable from the instant case In addition, unlike Los Alamos Construc tors, here Respondent's grievance, which is based upon the fact that longshoremen were performing the disputed work rather than teamsters, is in derogation of the Board s 10(k) determination issued in Case 20-CD-266 In filing the grievance Respondent was acting in defiance of the "Board's superior authority " Cf Smith Steel Workers (A 0 Smith Corp ), 174 NLRB 235 (1969), enfd in part sub nom Smith Steel Workers v A 0 Smith 420 F 2d I (CA 7) Based on the foregoing I find that Respondent's griev- ances for money damages filed against the trucking compa vies constitute threats, restraint, and coercion within the meaning of Section 8(b)(4)(ii) of the Act CONCLUSIONS OF LAW Respondent rather than to employees represented by ILWU The work consists of The removal of containers from, and the placing of containers on, truck trailers by Marine Terminals Corp, an employer-member of the Pacific Maritime Association, at piers located in San Francisco, Califor- nia 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action designed to effec- tuate the purposes of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended 1 Pacific Maritime Association and California Truck ing Association and their employer members and Rich- mond Export Services Company each is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent and ILWU are labor organizations with- in the meaning of Section 2(5) of the Act 3 Respondent has failed and refused to comply with the Decision and Determination of Disputes issued by the Board on February 11, 1974, and reported at 208 NLRB 1011 4 Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(1) and (n)(D) of the Act by inducing and encouraging individuals employed by Rings- by-Pacific Limited , System 99, Marine Terminals Corpora- tion, United Philippine Lines, Yamashito Shinhanon, State Lines, Pacific Oriental Terminal, Japan Lines, and Ameri- can President Lines , to refuse in the course of their em- ployment to transport goods, articles, materials, or com- modities and to perform services , and by threatening, coercing, and restraining Marine Terminals Corporation, American President Lines , Yamashito Shinhanon , United Philippine Lines, State Lines, Pacific Oriental Lines, and Japan Lines, an object thereof being to force or require Marine Terminals Corporation to assign the work de- scribed below to employees represented by Respondent rather than to employees represented by ILWU 5 Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(ii)(D) of the Act by threaten- ing, coercing, and restraining Alltrans Express , Morris Draying Company , Pacific Motor Trucking Company, S S I Container Corporation, Shima Transfer Company, Shippers Imperial, Inc, Garden City Trucking, Inc, Santa Fe Trail Transportation, R E Ellis Draying Co , Inc , and Richmond Export Services Company, with an object there- of being to force or require the aforesaid employers to as- sign the work described below to employees represented by ORDER15 Respondent, Brotherhood of Teamsters & Auto Truck Drivers Local No 85, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, San Francisco, California, its officers, agents, and repre- sentatives, shall 1 Cease and desist from inducing or encouraging any individual employed by Ringsby-Pacific Limited, System 99, Marine Terminals Corporation, United Philippine Lines, Yamashito Shinhanon, State Lines, Pacific Oriental Terminal, Japan Lines, and American President Lines, or by any other person engaged in commerce or in an indus- try affecting commerce, to engage in a strike or a refusal in the course of their employment to use, manufacture, pro- cess, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any ser- vices, or threatening, coercing, or restraining Marine Ter- minals Corporation, American President Lines, Yamashito Shinhanon, United Philippine Lines, State Lines, Pacific Oriental Terminal, Japan Lines, Alltrans Express, Morris Draying Company, Pacific Motor Trucking Company S S I Container Corporation, Shima Transfer Company, Shippers Imperial, Inc, Garden City Trucking, Inc, Santa Fe Trail Transportation, R E Ellis Draymg, Co, Inc, and Richmond Export Services Company, or any other employer or person engaged in commerce or in an industry affecting commerce where, in either case, an object there- of is to force or require Marine Terminals Corporation, S S I Container Corporation, Morris Draying Company, Pacific Motor Trucking Company, Shima Transfer Com- 15 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes TEAMSTERS LOCAL NO 85 809 pany, Shippers Imperial, Inc, Garden City Trucking, Inc, Santa Fe Trail Transportation, R E Ellis Draying Co, Inc, and Richmond Export Services, Co to assign the work described below to employees represented by Broth- erhood of Teamsters & Auto Truck Drivers Local No 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent here- in, rather than to employees represented by International Longshoremen's and Warehousemen's Union The work consists of The removal of containers from, and the placing of containers on, truck trailers by Marine Terminals Corp, an employer-member of the Pacific Maritime Association, at piers located in San Francisco, Califor- nia 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Withdraw the several contract grievances seeking money damages filed during January 1975 and February 1975 against Alltrans Express, Morris Draymg Company, Pacific Motor Trucking Company, S S I Container, Shima Transfer Company, Shippers Imperial, Inc, Garden City Trucking, Inc, Santa Fe Trail Transportation, R E Ellis Draying Co, Inc, and Richmond Export Services Compa- ny (b) Post in conspicuous places in its business offices, meeting halls, and all other places where notices to mem- bers are customarily posted copies of the attached notice marked `Appendix " 16 Copies of said notice, on forms provided by the Regional Director for Region 20 after being duly signed by an authorized representative of Re- spondent, shall be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material (c) Sign and mail sufficient copies of said notice to the Regional Director for Region 20 for posting by the em- ployer-members of Pacific Maritime Association, Califor- nia Trucking Association, and Richmond Export Services Company, where notices to their employees are usually posted, if said employers are willing (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 16 In the event that the Boards Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individual employed by Ringsby-Pacific Limited, System 99, Ma- rine Terminals Corporation, United Philippine Lines, Yamashito Shinhanon, State Lines, Pacific Oriental Terminal, Japan Lines, and American President Lines, or by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of their employment to use, man- ufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, or threatening, coercing, or restraining Marine Terminal Corporation, American President Lines, Yamashito Shinhanon, United Phil- ippine Lines, State Lines, Pacific Oriental Terminal, Japan Lines, Alltrans Express, Morris Draying Com- pany, Pacific Motor Trucking Company, S S I Con- tainer Corporation, Shima Transfer Company, Ship- pers Imperial, Inc, Garden City Trucking, Inc, Sante Fe Trail Transportation, R E Ellis Draying Co, Inc, and Richmond Export Services Company, to assign the work described below to employees represented by Brotherhood of Teamsters & Auto Truck Drivers Lo- cal No 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, rather than to employees represented by International Longshoremen's and Warehousemen's Union The work consists of The removal of containers from, and the placing of containers on, truck trailers by Marine Terminals Corporation an employer-member of the Pacific Maritime Association, at piers located in San Fran- cisco, California WE WILL withdraw the contract grievances seeking money damages we filed against Alltrans Express, Morris Draying Company, Pacific Motor Trucking Company, S S I Container, Shima Transfer Company, Shippers Imperial, Inc, Garden City Trucking, Inc, Sante Fe Trail Transportation, R E Ellis Draying Co, Inc, and Richmond Export Services Company, during January and February 1975 BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL No 85, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA