General Teamsters Local 326

National Labor Relations Board - Board DecisionsJan 23, 1974

208 N.L.R.B. 666 (N.L.R.B. 1974)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Teamsters Local 326, affiliated with Interna- tional Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Eazor Express , Incorporated . Case 4-CD-301 January 23, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 9, 1973, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the Charging Party filed a brief in opposition to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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 her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Newark, Delaware, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding, heard at Wilmington, Delaware, on September 10, 1973, pursuant to a charge filed on October 6, 1972, and a complaint issued on July 18, 1973, presents the question of whether Respondent General Teamsters Local 326, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (herein called Respondent or Local 326) violated Section 8(b)(4)(i) and (ii)(D) of the National Labor Relations Act, as amended (herein called the Act), by pressuring the I The parties stipulated that there did not appear to be any issues of credibility that need to be resolved but, in the event 1 should find otherwise, requested me to reopen the record for the purpose of taking testimony to resolve these issues. I have concluded that the issues presented here can be resolved on the basis of the uncontradicted testimony and, accordingly, that Charging Party (Eazor Express, Incorporated, herein called Eazor) to assign particular work to employees who are members of or represented by Local 326 rather than to employees who are members of or represented by Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local No. 299 (herein Local 299), or International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local No. 377 (herein Local 377). Prior to the issuance of the complaint herein, the Board conducted a hearing under Section 10(k) of the Act and, on May 31, 1973, issued a "Decision and Determination of Dispute" under that Section (203 NLRB No. 154) finding, inter alia, that Local 326 was not entitled, by means proscribed by Section 8(b)(4)(D) of the Act, to force or require Eazor to assign particular work to individuals represented by Local 326. Local 326's answer (as amended at the hearing before me) admits that Local 326 has failed to comply with the aforesaid Decision and Determination of the Board and has advised the Regional Director of Region 4 that it does not agree with the "Board determination" and "can not agree to comply" At the hearing before me, no testimonial evidence was adduced, and the only exhibits received consisted of the formal papers, the transcript and exhibits in the 10(k) proceeding, the briefs filed by Local 326 and Eazor in that proceeding, and the decision and order of the United States District Court for the District of Delaware in the related proceed- ing under Section 10(1) of the Act. The parties stipulated that the record in the instant complaint proceeding would be limited to the foregoing exhibits, the complaint and answer as amended, the transcript made before me, and the Board's Decision and Determination of Dispute in the 10(k) proceeding.' Upon the entire record and after due consideration of the briefs filed by Local 326, Eazor,2 and counsel for the General Counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Eazor is a Pennsylvania corporation licensed by the Interstate Commerce Commission to engage in, and it is engaged in , the transportation of general and special commodities by motor truck. It operates approximately 60 terminals in 15 States of the United States . During 1972 its gross receipts exceeded $30 million. During that same period , it performed trucking services valued in excess of $50,000 for Chrysler Corporation (herein called Chrysler) through deliveries of goods from Chrysler's Detroit, Michigan , plants to locations in the State of Delaware. Chrysler is a Delaware corporation engaged in the manufacture of automobiles. During 1972 , Chrysler shipped goods valued in excess of $1 million from its Detroit , Michigan, plants to points located outside the State of Michigan . Locals 299, 326, and 377 are labor there is no need to reopen the record Cf Bricklayers, Masons and Plasterer International Union [Shelby Marble & Tile Col v N LR. B , 475 F.2d 1316. 1321-22 (C A.D C., 1973). 2 I e., the briefs filed by them in the 10(k) proceeding and received as exhibits in the complaint proceeding 208 NLRB No. 99 GENERAL TEAMSTERS LOCAL '326 667 organizations within the meaning ;of Section 2(5) of the Act.3 Eazor and Chrysler are engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the policies of the Act to assert jurisdiction in this proceeding.4 H. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Unlawful Conduct Described in the 16(k) Record 1. The picketing and related activity For about 7 years prior to September 25, 1972, members of Locals 299 (a Detroit local) and 377 (a Youngstown local) employed by Eazor picked up solid loads of auto parts from Chrysler's Detroit, Michigan , plants and hauled them by tractor-trailer directly to Chrysler's Newark, Delaware , assembly plant. Eazor's drivers drove through the plant gate into the yard, backed up their vehicles to the dock, blocked the wheels, and opened the trailer doors. After Chrysler employees (represented by unions not involved herein) had unloaded the trailers and reloaded them with any cargo , to be hauled elsewhere, Eazor's drivers shut the trailer doors, unblocked the wheels, and drove their vehicles from Chrysler's Newark dock .directly to the next destination . In. addition , Eazor's drivers handled the necessary freight bills and did whatever else was necessary to accomplish final delivery.5 Eazor averaged 2 or 3 such deliveries daily , utilizing about 50 of its over-the-road drivers , some of whom owned their rigs ,6 and most of whom were members of either Local 299 or Local 377. None of the foregoing work was ever performed, on vehicles operated by Eazor as the carrier, by any employees who were members of or represented by Local 326.7 At 6 a.m. on Friday, September 25, 1972, a picket line was established in front of the main gate of the Newark plant by members of Local 326, some of whom carried 3 The foregoing findings are based on stipulations in the 10(k) record and on the complaint and amended answer. 4 These legal and policy conclusions track those made in the Board's 10(k). decision, which to this extent binds me because based on the same factual findings. 5 Some of Eazor's drivers had performed all of the foregoing work for a period of several years while employed by Daniels Motor Freight, which had provided Chrysler with those services prior to Eazor's acquisition of Daniels in 1967. 6 There is no contention that the owner-drivers are not employees within the meaning of the Act. Eazor deducts income taxes, social security, and State and local taxes where applicable, from the owner-drivers' pay checks. The owner-drivers have seniority rights which are independent of their equipment lease. The equipment least can be terminated by either party upon 30 days' notice, but an owner-driver cannot be discharged except for cause, and he has recourse to the grievance procedure under the collective- bargaining agreement. In the event that an owner-driver's lease is terminated, he can exercise his seniority to obtain other work. The owner- driven haul exclusively for Eazor, and cannot trip lease for another carrier without permission from Eazor. The owner-drivers cannot refuse to take a load unless another driver is ready and willing to take the load. An improper refusal results in. discipline. Where drivers own more than one piece of equipment which is leased to Eazor, Eazor interviews and hires the driver to operate the equipment and pays him directly, not the owner. The terms and conditions of employment of the owner-driven are regulated placards stating that the four trucking companies named thereon, which included Eazor, were "unfair."8 Later that morning, between 7 and 8:30, the plant's personnel manager, Louis Morris, arrived at the picket line, intro- duced himself, and asked to talk to a "spokesman for the group." Frank Sheeran , 'president of Local 326 and admitted in the answer to be that Union's agent, extended his hand and introduced himself. Sheeran told Morris that Local 326 had no quarrel with Chrysler, that Local 326s quarrel was limited to the four named companies because they "hauled material into the plant ," that Local 326 did not desire to disrupt Chrysler's operations in any way, and that there would be no violence unless Chrysler attempted to "sneak material into another gate." Morris testified that Sheeran told him that "they were trying to make arrange- ments whereby they could get-and I think that he used the term 'city man'-on the trucks" operated by Eazor. Sheeran denied Morris' request for time to attempt settlement of the matter , stating that the four companies involved had been aware of Local 326s demand for over a month, that Local 326 members "were pretty hot about the situation having dragged on as long . and that the line was going to stay there until . it was resolved ." Sheeran assured Morris that Chrysler's trucks and food deliveries for Chrysler's employee cafeteria could cross through the picket line without difficulty. While the foregoing discus- sion was in progress, both a rubbish removal truck and a mail truck entered the plant through the line. When a couple of pickets started to . walk toward the former truck, Sheeran said, "No, that's all right . Let them go. That's removing their rubbish."9 While Sheeran was talking with Morris, Local 326 business representative , Paul Harris (admitted in Local 326's answer to be Local 326 s agent), drove up: Harris told Morris that only the companies named on the placards would be stopped. Morris replied that Sheeran had given the impression that no freight would be brought into the plant . Harris then asked, "Is that right , Frank? Are you stopping all the trucks?" Sheeran replied that the other under , the collective-bargaining agreement, which, inter aria requires all leased equipment to be operated by an employee of the carrier . Eazor makes health and welfare payments for these owner-drivers in accordance with the collective-bargaining agreement . A flat 3 percent is incorporated into their wage payments in lieu of actual holidays and vacations. Eazor may reprimand the owner-drivers because of customer complaints or speeding tickets, and may advance money to help a driver repair his rig when it has broken down. 7 ,My findings in the foregoing paragraph are based on undisputed evidence in the 10(k) record , and substantially track those made by the Board in the 10(k) proceeding. 8 The placards contained a block -printed legend, `This company unfair,- with the companies' names lettered in crayon. 9 My findings in the foregoing paragraph as to the content of the conversations are based primarily on Morris' testimony in the 10(k) record, not denied by Sheeran . Sheeran admitted that he had "conversations" with Morris that morning, although Sheeran testified that he arrived on the scene about 8:30 a .m. rather than before 7 as Morris testified . Sheeran also admitted that some of the pickets were members of Local 326. Sheeran in effect denied Morris' further testimony that Sheeran told him, "If for some reason or another they couldn 't get a driver on it, then they would just mail a day's wages to the local union hall for a local union driver, Local 326.^ Resolution of this conflict appears unnecessary to a determina- tion of the issues here. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dnvers were all members of the Teamsters Union and they were not going to cross the line.10 At or around this time, John Groves, a member of Local 377 employed by Eazor, arrived at the plant on his weekly run from Detroit and attempted to enter the gate in order to make final delivery, as he had done for the past 7 or 8 years. He was prevented from doing so, however, by five or six pickets who blocked his way, told him that they were from Local 326, and stated that they were "on strike against Eazor Express" and the three other trucking companies. The pickets instructed him to park his vehicle across the road from the plant, and Groves did so. A short time later, he was joined by Albert Gardner, a Local 299 member employed by Eazor, who had entered the plant before the picketing began and was then leaving the plant after having delivered his load to the dock, as he had done for the past several years. Groves and Gardner then spoke with the pickets, who stated that they wanted Eazor to put a "city man" on the dock and "in Newark, Delaware," that they were picketing because Eazor refused to comply with their demands, and that Chrysler would have to shut down "within a couple of hours" because no trucks would cross the line to deliver freight. Sheeran, who with Harris was among the pickets while Groves and Gardner were talking to them, told Groves that "they were picketing against the ... four companies" named on the placards. Gardner testified that he and Sheeran had a "friendly discussion" on the picket line and that Sheeran made no specific demands on him. Sheeran testified, ". . . it is true that I did talk to one driver, and we wouldn't stop anybody from going in ." Groves advised Chrysler that he would not cross the picket line to deliver his load, whereupon Chrysler reconsigned it to a warehouse in Newcastle, Delaware. When Sheeran and Harris left the area on the first day of the picketing, the picketing was still in progress." About 2 p.m., Chrysler attempted to isolate, and thereby free itself of, the dispute by establishing a separate gate to be used by employees of the four firms (including Eazor) named on the placards. The pickets, however, ignored that gate and continued to picket the main gate. Consequently, no deliveries except mail and food were made that day, as contrasted with a norm of approximately 30 deliveries daily; and, true to the pickets' prediction, the effect of the picketing was to bung the plant to within a few hours of shutting down. However, Morris testified that in accord- ance with Sheeran's assurances, except for the interference with deliveries, "There was no interference with our operations on our property on the day in question." Thus, trucks leaving the plant, including those driven by Local 326 drivers carrying manufactured cars through an unpicketed gate, were not interfered with. Moreover, Local 326 members performed jockeying work behind the picket line, on vehicles previously dropped at the plant, after 10 These findings are based on Morris ' uncontradiLtcd testimony in the 10(k) record Harris did not testify, although he was present in the hearing room while this testimony was given ii My findings in this paragraph are based on the undisputed testimony of Groves , Gardner , and Sheeran at the 10(k) hearing 12 During this period, Eazor made some parts deliveries to Chryslers Newark warehouse Later during this period, Eazor made some parts deliveries to Chrysler 's Philadelphia warehouse , where they were picked up by dnvers represented by a Philadelphia local (Local 107) and brought to asking Sheeran whether it was all right to go inside, to which he admittedly replied that Local 326 was not on strike. After the separate gate proved ineffective, Chrysler officials instructed the plant management not to let Eazor bring materials into the plant until the dispute was resolved, and also told Eazor's president that Eazor would be cut out of the Newark run unless Eazor was "able to get together with the union there and cover the loads with 326 men." Although the pickets were removed at 8 a.m. the next day, Eazor made no deliveries to the Newark plant until November 10, 1972, when injunctive relief was obtained.12 Chrysler then resumed having materials deliv- ered to the Newark plant by Eazor, whose drivers have since performed the "jockeying" work.13 At the 10(k) hearing, the parties stipulated that Eazor "is not failing to conform to an order of [sic] certification of the Board determining the bargaining agent of the employees performing the work in dispute." 2. Evidence bearing on responsibility for the picketing Sheeran testified that he did not order the picket line set up on September 25, 1972; that he did not have the "slightest idea" who ordered the line up; 14 that "We were requested" by an unidentified person or persons "to bring a sign up, and we didn't have no sign, and we didn't give no signs out to anybody;" and that he had "no knowledge" of any Local 326 meeting the day preceding the day the line was put up. He further testified that on September 25 he "got wind of" the picketing through a call from an unidentified source, that he went down to the line to see what was going on, and that he then "figured I would cool the guys down. They were mad, and my job is to make sure they don't get into any problem, nobody gets into any problem." Sheeran characterized as "order[ing] the line down" the following exchange: I said why don't you let your local union handle it. They said, "You've been dragging your feet too long." I said, "We'll get the thing settled." Q. Your position is that these pickets were unau- thorized? A. That's right. My position was-and I stood there to make sure that we wouldn't have any problem. Then I finally left. * s s Q. When you left, were the pickets still there? A. Yes sir. Q. Was Mr. Harris there when you left? A. Mr. Harris? I don't believe so. the Newark plant. "I My findings in the foregoing two paragraphs are based on undisputed evidence in the 10(k) record, and substantially track those made by the Board in the 10(k) proceeding 14 When then asked by Eazor's counsel whether he was president of Local 326, Sheeran testified . " I was not president when the line went up " However, immediately thereafter he admitted that he was president on September 25. GENERAL TEAMSTERS LOCAL 326 Sheeran later testified that he "chew[ed the pickets] out. If I remember, I said, in trying to get the line off. I wanted the line off. And we had to take action." Sheeran testified that he took no disciplinary action against the pickets (some of whom, as he pointed out, were nonmembers) "Outside of chewing them out a little bit," and telling them "afterwards" to bring such claims in the future before the executive board "because they were putting the union in jeopardy. They had no right to do it. There was no union official who had authorized this thing." When asked the purpose of the picket line, Sheeran testified, "Well, the purpose of the line-the men who were on the line, they were men from the hire-hall, and they thought the thing was dragged out, and they put up a line ... you know, with any organization you always have men that think they know more than the union officers." Sheeran admitted that Local 326 claimed the work sought by the picketing. More specifically, he testified that Local 326 wanted the work of "covering the body," that is, the replacement of Eazor's over-the-road driver by a "city man," represented by Local 326, who, at some point near the plant, or the plant's dock, would take over the vehicle and make the final delivery at the plant, including backing in the rig, opening and closing the doors, moving the blocks, getting the bills, and driving the vehicle out of the docks.is 3. Evidence bearing on the existence of a jurisdictional dispute Sheeran testified that where "local men" who are represented by Local 326 effectuate final delivery of cargo hauled into Local 326's jurisdiction by over-the-road drivers, the "local r-ien" are paid by check made out by the trucking company. Eazor's president testified that if Eazor went along with Local 326's request, it was his understand- ing that the Eazor '.ruck would pick up a Local 326 man at the plant; and tha, if Eazor were to assign the jockeying work to a member of Local 326, Eazor would pay him, but would not pay the Local 377 and 299 members who took the load to Newark any less than they are being paid now. In so testifying, he relied partly on experiences elsewhere (not shown to involve any of the locals here) and partly on the "National Master Freight Agreement and Central States Area" collective bargaining agreement and its "Iron and Steel and Special Commodity Rider," to which Eazor and Locals 299 and 377 were parties between April 1, 1970, and June 30, 1973. The "Rider" covered, inter alia, "any driver, chauffeur, or driver-helper operating a truck." Under this agreement Eazor paid its drivers a specified percentage of "gross revenue as wages." The rider further provided: The operations shall be shipper to consignee or interline except that one pickup of a solid load at point of origin and one delivery of a solid load at point of destination shall be allowed .. . The driver shall only supervise in the loading and/or 15 Local 326 's claim to the jockeying work includes not only the plant area, but also any point within its jurisdiction. 16 Groves testified that if a city man "made one mistake with my 669 unloading and at no time shall he be required to physically aid in the loading and/or unloading ... . Eazor drivers Gardner (a Local 299 member) and Groves (a Local 377 member) testified that it was their understand- ing that if a Local 326 member were assigned to do the jockeying work, that employee would be paid by Eazor and not by the over-the-road drivers. Groves testified that if the Local 326 member's pay were deducted from his own compensation under such circumstances, he would quit hauling the freight. Gardner testified that rather than pay anything to Local 326 drivers under such circumstances, he would leave Eazor's employ. Groves and Gardner, both of whom own the rigs which they operate, further testified that because of the substantial investment which they have in their rigs, they would not, under any circumstances, let anyone else operate their rigs.16 Local 377 member Groves testified that no official or agent of that Union ever told him either to handle or not to handle the delivery work at the dock, and that "It's just part of my job." Local 299 member Gardner testified that he presumed Local 299 was aware that he made parts deliveries for Eazor between Detroit and Newark, that Local 299 had never had any discussions with him about it, and that he claimed this work. Local 299 committeeman John Schweigert, an Eazor driver, testified that Local 299 was aware that he transported commodities between Detroit and Newark and had never told him not to do it; and that he would accept future assignments from Eazor of such work. Groves testified that he wanted to continue the work that he was now doing, but if his Union (Local 377) asked him to "recognize the right of Local 326, its jurisdiction to demand that jockeys be employed . . . at the Chrysler plant," he would not "contest it." Schweigert, who does not own a rig, testified that he would have no quarrel with following "the policy of [his] local union [299]," as allegedly stated at the hearing, "not to contest the jurisdiction of Local 326 with respect to jockeying work"-a "policy" which "wouldn't cost [him] no money." Groves testified that Sheeran never told him that Sheeran wanted a driver to take over Groves' truck, why the driver would ride with him, or that Sheeran wanted Groves to pay a driver, and that Sheeran made no specific demand upon him. Gardner testified that nobody had made a demand on him and told him that he would have to pay the expense of the city man, or under what conditions a city man would have to be used. At the 10(k) hearing, counsel for Locals 299 and 377 stated, inter alia: In our estimation there is no jurisdictional dispute here. The position of Local 377 and 299 is that we do not claim that the work that is the subject of this hearing must be assigned to drivers who are members of Local 299 and 377. We were in the Delaware area by virtue of our obligations under contracts with the Employer. We were dispatched to those locations, and we were transmission, it cost me $46.000" Gardner testified , "If I get a load where I have to have a city man, I don't take it " 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merely following the instructions of dispatchers. It is our formal position that we don't care what the Board does with this work and that, in fact, there is no real dispute within the meaning of the Act. * s s s s I don't consider myself an interested party. I am here . . . on behalf of Locals 377 and 299, and we are not asserting a claim. We do not insist that the work be assigned to us. Again, we don't care what the Labor Board does with it. We don't think there is a dispute that is cognizable under Section 10(k) of the Act, and the Board may do as they so desire. Counsel for Locals 299 and 377 further stated at the 10(k) hearing, "It is my understanding that members of our Locals were assigned the work . . . I assume they are continuing to do it, but it is our formal position that we don't care what the Board does with it . . . . We did not make any claim that it must be assigned to us." When asked by the 10(k) hearing officer, "But when the work is assigned, you will perform it, your members will perform it?" counsel replied, "I will assume that they will continue as they have in the past. We will not refuse, nor will we insist that we perform the tasks." Eazor's counsel stated during the 10(k) hearing, without contradiction from counsel for Locals 299 and 377, that no drivers represented by these locals have filed grievances which opposed their performance of this work, or have ever refused to perform it. Eazor's counsel further asserted that these locals had never attempted to impose discipline on these employees for performing the work; counsel for these locals stated that he did not know whether this assertion was true.17 B. The Board's Determination of Dispute in the 10(k) Proceeding;- Local 326s Refusal to Comply Therewith On the basis of the record in the 10(k) proceeding, which also constitutes most of the record before me and on which the foregoing findings are based, the Board found reasonable cause to believe that a violation of Section 8(b)(4)(D) had occurred, and that the dispute was properly before the Board for determination under Section 10(k) of the Act. The Board made the following Determination of Dispute on May 31, 1973: 1. Employees of Eazor Express, Incorporated, who are represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 299, and by International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 377, are entitled to perform the work involved in the final delivery of goods to Chrysler Corporation's Newark, Delaware, plant, including driving over-the-road trucks to the plant's delivery or receiving docks, opening and closing 17 Locals 299 and 377 did not file briefs in the 10(k) proceeding. and did not appear at the proceeding before me although served with notice thereof is The contract on which Local 326 relied in the 10(k) proceeding as a basis for its claim to the work expired after the Board issued its 10(k) trailer doors, blocking the wheels, handling the neces- sary freight bills, doing whatever else is necessary to accomplish final delivery, and driving the truck out of the plant docks. 2. General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is not entitled by means proscribed by Section 8(b)(4)(D) of the Act to force or require Eazor Express, Incorporated, to assign the disputed work to individuals represented by that labor organization. 3. Within 10 days from the date of this Decision and Determination of Dispute, General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall notify the Regional Director for Region 4, in writing, whether or not it will refrain from forcing or requiring Eazor Express, Incorporated, to assign the work in dispute to individuals represented by General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, rather than to employees of Eazor Express, Incorporated, who are represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 299, and by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 377. Local 326's answer to the complaint, as amended at the hearing before me, concedes that Local 326 has failed to comply with the aforesaid Decision and Determination and has advised the Regional Director of Region 4 that it does not agree with the Board determination and can not agree to comply. C. Analysis and Conclusions None of the parties having tendered to me any evidence other than that included in the 10(k) record, I have no power to consider either whether the 10(k) notice of hearing should have been quashed because of Local 326's allegation that the parties to the dispute had agreed upon methods for the voluntary adjustment of the dispute (a contention rejected by the Board in the 10(k) proceeding) or whether employees represented by Local 326 are entitled to perform the disputed work notwithstanding the Board's contrary conclusion in the 10(k) proceeding. Bricklayers, Stone Masons, Marble Masons, Tile Setters and Terrazzo Workers Local Union No. 1 of Tennessee (Shelby Marble & Tile Co.), 195 NLRB 123, enfd. 475 F.2d 1316 (C.A.D.C, 1973); Cleveland Stereotypers' Union No. 22, International Stereotypers' and Electrotypers' Union of North America (Western Press, Inc.), 160 NLRB 1184, 1186, enfd. 402 F.2d 270 (C.A. 6, 1968).i8 Moreover, Local 326 admits that it has failed to comply with the Section 10(k) award. Accordingly, the only issue before me is whether the evidence preponderantly shows that Local 326 exerted the kind of pressure specified in Section 8(b)(4)(i) and (ii) with determination. At the hearing before me, all parties stipulated that the instant case can be decided without reference to any contract which Local 326 may now have as a replacement for the expired contract already in the record. GENERAL TEAMSTERS LOCAL, 326 671 an object specified in Section 8(b)(4XD). Shelby Marble, supra, 475 F.2d at 1322. 19 I conclude that it does. 1. The pressure exerted by Local 326 The record shows that Frank Sheeran, Local 326's president and admittedly its agent, told Chrysler that the picket line was going to stay in front of the Chrysler plant until resolution of the dispute arising from Local 326's demand that Eazor hire a "city man," correctly predicted to Chrysler that none of the deliverymen would cross the line, and implied that there would be violence if Chrysler attempted to "sneak material into another gate." Accord- ingly, even assuming arguendo that Local 326 was in no way responsible for the presence or continuance of the picket line, the Union (through its admitted agent Sheeran) threatened, coerced, and restrained Chrysler and Eazor within the meaning of Section 8(bX4Xi) and (ii).20 Moreover, I conclude that Local 326 was answerable for the picketing itself. By Sheeran's own admission, the pickets were attempting to obtain for Local 326-represent- ed employees the same work which Local 326 was claiming, by the use of picket signs naming the same four companies with which Local 326 had a dispute. When Morris asked to speak to a "spokesman" for the pickets, Sheeran extended his 'hand and introduced himself. Further, Sheeran used the presence of the picket line as a basis for urging that the work be assigned in accordance with Local 326's claim. Also, when Morris in effect asked Sheeran to postpone the picketing, Sheeran made no claim that he was unable to do so (as would have been natural. if this were the case) but, instead, refused on the ground that the dispute had already been dragged on long enough. In addition, Sheeran demonstrated his control over the scope of the picketing's appeal by successfully directing the pickets not to stop the rubbish truck from entering the plant and by giving Local 326 members permission (of which they took advantage) to perform jockeying work inside the line. Such limitations imposed by Sheeran, and the demonstrated willingness of all drivers (including members of Local 326) to transport goods from the plant across the picket line, all accorded with Sheeran 's assur- ance to Morris that Local 326 did not desire to disrupt Chrysler's operations in any way. In addition, Sheeran and Harris were both present on the picket line on the morning of the day it began, and left the area without seeing to it 19 The Board found in its 10(k) decision , based-so far as relevant here--on the record now before me , that "there is reasonable cause to believe that a violation of Section 8(b)(4XD) has occurred, and that the dispute is properly before the Board for determination under Section 10(k) of the Act." While obviously not inconsistent with a determination that such conclusions are supported by "a preponderance of the testimony taken" (Sec. 10(c)'s predicate for a remedial order), such a statement is not the equivalent thereof. See N.L.R.B. v. Plasterers Local Union No. 79,404 U.S. 116, 122, fn. 10 (1971). 20 N.L.R.B. v. Local 825, International Union of Operating Engineers, [Burns and Roel, 400 U.S. 297,300-304(1971); Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipefttting Industry (Midwest Homes, Inc.), 155 NLRB 16, 19, 22, enfd . 369 F.2d 388 (C.A. 7, 1966); General Drivers and Dairy Employees, Local No. 563 (Fox Valley Material Suppliers Association), 176 NLRB 386, 394, enfd . 440 F.2d 354 (C.A.7, 1971). 21 "... why don't you let your local union handle it . . . well get this thing settled . . . I [want ) the line off . . . we [have ) to take action." a2 District 30, United Mine Workers of America (Elkhorn Mining Co.), 163 that the picket line was lifted. Moreover, Sheeran's understandably unsuccessful efforts to "order the line down" on September 25 were admittedly limited to. mere suasion 2t and "chewing them out." Furthermore, even afterwards, Sheeran took no disciplinary action against the pickets who were Local 326 members, other than "chewing them out a little bit" and telling them to bring such claims in the future befgfe the Executive Board because the pickets were jeopardizing the Union and engaging in conduct unauthorized by any union official. I conclude that notwithstanding Sheeran's uncontradicted testimony that Local 326 "didn't have no sign and ... didn't give no sign out to anybody," and accepting his testimony that he had no knowledge of who ordered the line up or of any Local 326 meeting the day before the picketing began, Local 326 is answerable for the picketing by adopting, ratifying, and condoning it.22 Because the picketing caused deliverymen employed by Eazor and other persons to refuse to make deliveries across the line, thereby brought the Chrysler plant to within a few hours of closing, and thereby caused Chrysler to cease having Eazor make deliveries to the Newark plant until injunctive relief was obtained, such picketing plainly constituted both inducement or encouragement of individ- uals to refuse in the course of their employment to transport materials and to perform services within the meaning of Section 8(b)(4)(i), and threats, coercion, and restraint against Chrysler and Eazor within the meaning of Section 8(b)(4)(ii).23 2. The existence of a jurisdictional dispute Local 326 contends in its brief that its conduct did not violate Section 8(b)(4)(D) because no jurisdictional dispute existed with respect to the work covered by the 10(k) award. Local 326 points to the statements of counsel for Locals 377 and 299 during the 10(k) hearing that there is no jurisdictional dispute and that these Locals do not insist that the work be assigned to them, to the testimony of Local 377 member Groves, and Local 299 member Schweigert that if their respective locals had a policy of recognizing Local 326's "jurisdiction" with respect to jockeying work they would not "contest" that 'Jurisdic- tion," 24 and to their testimony and the testimony of Local 299 member Gardner that nobody had made a demand on them for the work. However, the existence of a jurisdiction- NLRB 562, 569 , enfd . 69 LRRM 2792 (C.A. 6, 1968); Teamsters Local *113, International Brotherhood of Teamsters(E J. Lavino & Company), 157 NLRB 1637, 1638,fn. 1. 1642-43. 23 Local 1291 , International Longshoremen's Association (Pocahontas Steamship Company), 152 NLRB 676, 678, 154 NLRB 1785, 1788-89, enfd. 368 F.2d 107 (C.A. 3, 1966), cert. denied 386 U.S. 1033 (1967); Local Union No. 272, International Association of Bridge, Structural and Ornamental Iron Workers (Prestress Erectors, Inc.), 172 NLRB 207, enfd. 427 F.2d 211 (C.A. 5, 1970); N.LR.B. v. Local 825, International Union of Operating Engineers (Burns and Roe), 410 F.2d 5, 7-8 (C.A. 3, 1969), revd. in part 400 U.S. 297, 301,303-306(1971). 24 1 cannot attach much practical significance to owner-operator Groves' somewhat generalized testimony in this respect . Groves also testified that under no circumstances would he permit any other driver to drive Groves' rig, and that even if Eazor instructed him to let a Local 326 man operate Groves' unit in the yard, the only work Groves would permit him to do would be hand loading and unloading (which was not done at the Chrysler plant). taking the bills inside, and opening and closing the doors. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al dispute does not require the existence of "a dispute between two or more groups of employees actively competing for the same work assignment." Local 40, International Brotherhood of Electrical Workers (F&B/Ceco of California, Inc.), 199 NLRB 903. Rather, "The fact that one union has the jobs and holds on to them in a polite, nonbelligerent manner while the other union uses the forbidden tactics in an effort to get them, or some of them, does not mean that what Congress regarded as the evils of a jurisdictional dispute are not present." International Brotherhood of Electrical Workers v. C. J. Montag & Sons, Inc., 335 F.2d 216, 221 (C.A. 9), cited with approval, Plasterers Local Union, supra, 404 U.S. at 135, fn. 31; quoted with approval, Burns & Roe, supra, 410 F.2d at 8 (C.A. 3). In the instant case, members of both locals testified that they desired to continue to perform the jockeying work. Furthermore, members of these local unions have continued to perform that work without (so far as the record shows) restraint, discipline, or threats thereof from their locals. Indeed, counsel for these local unions stated at the 10(k) hearing that when the work was assigned to members of these locals, "I will assume that they will continue as they have in the past. We will not refuse , nor will we insist that we perform the tasks." Moreover, even if Eazor were to assign the jockeying work to employees represented by Local 326, Eazor would nonetheless need the services of drivers represented by Locals 299 and 377 to operate the vehicles from the freight's Detroit point of origin to Local 326's jurisdictional area in New Jersey. Further, whether or not Eazor used Local 326 jockeys, the Local 299 and 377 longhaul drivers would still be contractually entitled to the same pay, which is computed on the basis of a percentage of the gross revenue. The two owner-operator witnesses both testified that if Eazor did not sustain the expense of engaging jockeys, and the owner-operators' wages were diminished because of the jockeys' wages, the owner-operators would not haul the freight in question. Similarly, after expressing willingness to have Local 326 drivers perform jockeying work, the remaining driver witness, who also worked for Eazor but did not own a rig, added that this arrangement "wouldn't cost me no money." "... the fact that the union which has the job is not unwilling that the other union should come in and do some of the work and get paid for doing it, if the first union will still continue to get paid for the work, does not remove the situation from the category of jurisdictional disputes." Montag, supra, 335 F.2d at 221, quoted with approval in Pocahontas Steamship, supra, 152 NLRB at 680.25 "... a jurisdictional dispute between two groups of employees as to which is entitled to certain work is in essence a dispute as to which shall receive compensa- 25 Pocahontas was cited with apparent approval in Plasterers Local Union, supra, 404 U.S . at 136, In. 31. 26 From the district court's opinion in the related 10(1) proceeding, it appears that in defense of its picketing , Local 326 advanced the "publicity proviso" to Section 8(b)(4). The district court rejected this contention on the ground that ( 1) the picketing did not meet the proviso 's requirement that "the purpose" of the questioned conduct be to convey information, because an object thereof was to force or require Eazor to reassign the work; (2) the proviso was designed to permit appeals to the general public as consumers, and not to permit coercion or inducement of a secondary employer to cease doing business with the primary employer; (3) the publicity proviso specifically excludes picketing from the types of protected publicity activity, tion for that work . The opportunity sought to perform labor is significant only as a means of obtaining compensa- tion . It follows that if workmen , who are entitled to a job under the terms of a labor contract, agree to forego the obligation of working but not the concomitant right to payment, they have not disclaimed any significant right. When , as in this case , one group insists that work, for which another group has contracted and is being paid, be assigned it, the fact that both groups are claiming pay for the same work suffices to create a jurisdictional dispute, and it is irrelevant that either group , or both, may manifest a willingness to take the pay and forego the work." Pocahontas Steamship, supra, 368 F .2d at 110 (C.A. 3). Accordingly , I conclude that the purported disclaimers of Locals 299 and 377 are not effective to extinguish the jurisdictional dispute herein.26 CONCLUSIONS OF LAW 1. Eazor Express, Incorporated, and Chrysler Corpora- tion are persons engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters, Local 326, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America; International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 299; and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 377, are labor organizations within the meaning of Section 2(5) of the Act. 3. The Respondent has failed and refused to comply with the Board's Decision and Determination of Dispute, issued on May 31, 1973, and reported at 203 NLRB No. 154. 4. Respondent has engaged in unfair labor practices proscribed by Section 8(b)(4)(i) and (ii)(D) of the Act by inducing and encouraging individuals employed by per- sons engaged in commerce, or in an industry affecting commerce, to refuse in the course of their employment to transport goods, articles, materials, or commodities and to perform services; and by threatening, coercing, and restraining Eazor and Chrysler; an object thereof being to force or require Eazor to assign the work described below to employees represented by Respondent rather than to employees represented by Locals 299 and 377. The work consists of: The work involved in the final delivery of goods to Chrysler Corporation's Newark, Delaware, plant, including driving over-the-road trucks to the plant's delivery or receiving docks, opening and closing trailer and N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen , Local 760 [Tree Fruits], 377 U.S . 58, 65-70 ( 1964), did not exempt picketing directed at the secondary employer in his capacity as a purchaser or user of the primary employer's products; (4) the picketing was not publicity picketing directed at the general public to persuade them not to deal with Eazor, because the Newark plant is not a retail outlet for Chrysler products and the Eazor product or service is not the type of product which can be specifically identified and boycotted ; and (5) the publicity proviso by its express provisions does not protect activities which have the effect of inducing employees of secondary employers to refuse to deliver goods. This contention has not been advanced to the Board or to me. GENERAL TEAMSTERS LOCAL 326 doors, blocking the wheels, handling the necessary freight bills, doing whatever else is necessary to accomplish final delivery, and driving the truck out of the plant docks. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 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 therefrom and take certain affirmative action designed to effectuate 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: ORDER27 Respondent General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from inducing or encouraging any individual employed by Eazor Express, Incorporated, 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or threatening, coercing, or restraining Eazor or Chrysler Corporation; where in either case an object thereof is to force or require Eazor to assign the work described below to employees represented by General Teamsters Local 326, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent herein, rather than to employees represented by International Brotherhood of Teamsters, Chauffeurs,. Warehousemen and Helpers of America, Local No. 299, and by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 377. The work involved consists of: The work involved in final delivery of goods to Chrysler Corporation's Newark, Delaware, plant, including driving over-the-road trucks to the plant's delivery or receiving docks, opening and closing trailer doors, blocking the wheels, handling the necessary freight bills, doing whatever else is necessary to accomplish fina` delivery, and driving the truck out of the plant docks. 2. Take the fol•owing affirmative action designed to effectuate the policies of the Act: (a) Post in conspicuous places in Respondent's business offices, meeting halls, and all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immedi- 673 ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notices to the Regional Director for Region 4 for posting by Eazor and Chrysler, at all locations where notices to their respective employees are customarily posted, if they are willing to do so. (c) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 17 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 , recommendations , 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 2ti In the event that the Board's 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 be changed to 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 EMPLOYEES AND 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 Eazor Express, Incorporated, 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services ; or threaten , coerce , or restrain Eazor or Chrysler Corporation; where an object is to force or require Eazor to assign the following work to employees represented by General Teamsters Local 326, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, rather than to employees represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Locals 299 and 377. The work involved is the final delivery of goods to Chrysler Corporation's Newark, Delaware, plant, including driving over-the-road trucks to the plant's delivery or receiving docks, opening and closing trailer doors, blocking the wheels, handling the necessary freight bills, doing what- ever else is necessary to accomplish final delivery, and driving the truck out of the plant docks. 674 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD GENERAL TEAMSTERS LOCAL 326, AFIILIAIED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concern- Ing this notice or compliance with its provisions may be directed to the Board 's Office , Suite 4400, 600 Arch Street, Philadelphia, Pennsylvania 19106, Telephone 215-597-7617.