International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America

National Labor Relations Board - Board Decisions

Nov 27, 1953

107 N.L.R.B. 223 (N.L.R.B. 1953)

TEAMSTERS LOCAL 175, INTL BROTHERHOOD OF TEAMSTERS 223
did not in any manner constitute such interference as to
warrant setting aside the election.4
We agree with the conclusion of the Regional Director that
the objection lacks merit . Without regard to how the conduct
of the union representatives is characterized , we are per-
suaded, and find, that it did not prevent the sort of free and
untrammeled choice of representatives contemplated by the
Act. Under all the circumstances , we conclude , as did the
Regional Director , that the objection does not raise material
and substantial issues respecting the results of the election.
As the Tally of Ballots shows that the Union obtained a
majority of the valid votes cast in the election, we shall
certify the Union as the certified bargaining representative of
the employees in the appropriate unit.
[The Board certified Shopmen's Local Union No. 539 of the
International Bridge, Structural and Ornamental Iron Workers,
AFL, as the designated collective -bargaining representative of
the employees of the Employer in the unit heretofore found
appropriate.]
4In connection with this objection , the Employer and Tate allege that the union repre-
sentatives , in the course of their conduct at the club, violated sections of the code of the
city of Birmingham and the State of Alabama. The Regional Director rejected this argument
on the ground that the Board is not the proper agency for the determination of such issues.
that such issues are not germane and, moreover , that there was no evidence that any of the
union representatives have been convicted for such alleged violations.
TEAMSTERS LOCAL 175, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, AFL and BIAGI FRUIT & PROD-
UCE COMPANY. Case No. 9-CD-19. November 27, 1953
DECISION AND DETERMINATION OF DISPUTE
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, which
provides that "whenever it is charged that any person has
engaged in an unfair labor practice within the meaning of
paragraph 4 (D) of Section 8 (b), the Board is empowered and
directed to hear and determine the dispute out of which such
unfair labor practice shall have arisen. . . ."
On August 26, 1953, Biagi Fruit & Produce Company, herein
called the Company, filed with the Regional Director for the
Ninth Region a charge alleging that Teamsters Local 175,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, AFL, herein called the
Respondent , had engaged in and was engaging in certain
107 NLRB No. 70
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities proscribed by Section 8 (b) (4) (D) of the Act. It
was alleged, in substance, that the Respondent had induced and
encouraged the Company's employees to refuse, in the course
of their employment, to unload merchandise from the Company's
trucks at the Kroger Company's warehouse in Charleston, West
Virginia, with the object of forcing or requiring the Company to
assign such work to members of the Respondent rather than to
its own employees.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.71 and 102.72 of the Board's Rules and Regulations, the
Regional Director investigated the charge and provided for an
appropriate hearing upon due notice to both parties. A hearing
was held before Clifford Hardy, hearing officer, on September
28, 1953.
The Company and the Respondent appeared at the hearing and
were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing on
the issues. The rulings of the hearing officer made at the
hearing are free from prejudicial error and are hereby
affirmed. Although the parties were afforded an opportunity
to file briefs with the Board, they did not do so.
Upon the entire record in the case, the Board makes the
following:
FINDINGS OF FACT
1. The Company's business
The Company is engaged in the wholesale distribution of
fruit and produce in and around Charleston, West Virginia.
During 1952 the value of goods shipped to the Company from
points outside the State of West Virginia was in excess of
$900,000, and over $25,000 in value of such products were
sold and distributed to points outside the State of West Vir-
ginia.
The Board finds that the Company is engaged in commerce
within the meaning of the Act.
2. The dispute
(a) The facts
The Company has four truckdrivers who deliver merchandise
from its own warehouse to the premises of its customers.
Kroger is a customer of the Company. Merchandise which it
buys from the Company is unloaded at its trucking dock adjacent
to its warehouse. The Respondent is the collective-bargaining
representative for a unit of Kroger warehouse employees. The
Company's employees are not represented by any labor organi-
zation.
Over the years a custom has grown up with Kroger's knowl-
edge and passive consent, at the least, of permitting one or more
TEAMSTERS LOCAL 175, INTL. BROTHERHOOD OF TEAMSTERS 225
members of the Respondent, assigned from its hiring hall, to
station themselves at the Kroger dock for the purpose of
unloading trucks of Kroger suppliers. Although the services of
the Respondent's unloaders are nominally not required but are
available, for a fee, to all truckers who are delivering mer-
chandise at the Kroger warehouse, it has been a practice for
the union unloaders not to permit nonunion drivers, except
farmers delivering their own produce, to do their own unloading
at the Kroger dock. The union unloaders or the Respondent's
stewards at the Kroger warehouse determine who is and who is
not to be permitted to unload at the dock by requesting drivers
to show their union cards.
All drivers of the Company have been instructed to do their
own unloading as part of their delivery job, and always do so
except at the Kroger warehouse. One driver testified that early
in July 1953 he delivered a load of apples to the Kroger ware-
house and asked the unloader on the dock if he could unload it
himself. He was told that he could not. On August 10, 1953, he
drove up to the Kroger dock and started to unload but was
stopped by the unloader. The driver was then a member of the
Respondent and showed the unloader his union card. He was
first told he could continue unloading, but after the unloader
left the dock for a few minutes he came back and told the driver
that he would not be permitted to complete the urn-loading. The
unloader then proceeded to do the work hirf1self. Another
company driver testified that he had tried to unload at the
Kroger dock on a number of occasions but was never permitted
to do so.
Despite the testimony of the Respondent unloaders that no
one is ever forced or required to use their services, we find,
based on the testimony of the two company drivers and the
Kroger receiving clerks, that nonunion drivers, except farmers
driving their own trucks, are not permitted to unload at the
Kroger dock but are required to hire a union unloader and to
pay him the prescribed fee set by the Respondent.
(b) Contentions of the parties
The Company contends that by the above conduct the Re-
spondent violated Section 8 (b) (4) (D) of the Act.
The Respondent, represented by counsel, participated in the
hearing and cross-examined witnesses . It did not, however,
present any witnesses and made no clear statement of its
position on the merits of this proceeding. Neither the Re-
spondent nor the Company filed briefs with the Board.
(c) Applicability of the statute
The charge, which was duly investigated by the Regional
Director, alleges a violation of Section 8 (b) (4) (D) of the Act,
and the Regional Director was satisfied, on the basis of his
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation , that a violation of the section had been com-
mitted.
On the record before us , we find that there is reasonable
cause to believe that the Respondent engaged in activities
proscribed by Section 8 (b) (4) (D ) of the Act , with the object
of forcing or requiring the Company to assign the work of
unloading merchandise at the Kroger warehouse to its members
rather than to the Company's own employees . We therefore
find that the dispute in question is properly before us for
determination in a proceeding under Section 10 (k).
(d) Merits of the dispute
It is clear from the record that the Respondent has no
immediate or derivative rights under any existing contract
upon which it could predicate any lawful claim to the work
in dispute . As indicated above, the Company has no bargaining
relations with the Respondent or with any other union. Nor does
it appear that the Company is failing to conform to any order
or certification of the Board determining the bargaining
representative for the employees performing the work in
dispute. Neither is there any question that the Company has
assigned the work to its own employees.
These facts are determinative of the present dispute. The
Board has held that Sections 8 (b) (4) (D ) and 10 (k) "do not
deprive an employer of the right to assign work to his own
employees , nor were they intended to interfere with an
employer's freedom to hire, subject only to the requirement
against discrimination as contained in 8 (a ) ( 3)."t Consequently,
in determining this dispute , it is sufficient on the facts before
us that the Company assigned the work to its own employees,
and that the Respondent engaged in proscribed activities to
force or require the Company to assign this work to its own
members.
Accordingly , we find that the Respondent is not lawfully
entitled to force or require the Company to assign the work
of unloading its trucks at the Kroger warehouse at Charleston,
West Virginia , to its members rather than to employees of the
Company.'
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact, and the entire
record in this case , the Board makes the following determina-
tion of the dispute, pursuant to Section 10 (k) of the Act:
1. Teamsters Local 175, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, AFL,
and its agents , are not and have not been lawfully entitled to
lUnited Brotherhood of Carpenters and Joiners of America, et al (Stroh Brewery Co.),
88 NLRB 844; Juneau Spruce Corporation , 82 NLRB 650.
2 D1rect Transit Lines , 92 NLRB 1715.
TEAMSTERS LOCAL 175, INTL. BROTHERHOOD OF TEAMSTERS 227
force or require Biagi Fruit & Produce Company to assign the
work of unloading trucks at the Kroger Company warehouse
at Charleston , West Virginia , to its members rather than to
the employees of the Company.
2. Within ten ( 10) days from the date of this Decision and
Determination of Dispute , Teamsters Local 175, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen &
Helpers of America , AFL, shall notify the Regional Director
for the Ninth Region, in writing, as to what steps it has taken
to comply with the terms of this Decision and Determination of
Dispute.
Member Murdock, dissenting:
I cannot agree with the majority that this case--a primary
dispute between an employer and a union--is the type of case
in which Congress intended the Board to conduct proceedings
under Section 10 (k) and 8 (b) (4) (D) of the Act.
As I stated in my dissenting opinion in Direct Transit Lines,
Inc., 92 NLRB 1715, 1723, it is my view that Section 10 (k) and
8 (b) (4) (D), as shown by the legislative history, should be
limited to cases of jurisdictional disputes (my opinion in
Moore Drydock Company, 81 NLRB 1108, 1121), that is, those
disputes on work assignments between competing labor organi-
zations (see the opinion in which Member Styles and I dissented
in New London Mills, Incorporated, 91 NLRB 1003,• 1008)
when the employer is neutral and indifferent to which of the
competing labor organizations performs the work. (My dissent
in Juneau Spruce Corporation, 82 NLRB 650, 660.)
In this case, as I also stated in Direct Transit Lines, we not
only do not have a "jurisdictional dispute," but we do not even
have a dispute, as the Board did in New London Mills, between
a labor organization and a group of unorganized employees.
There is no struggle here between the Respondent Union and a
group of employees of the Company over the assignment of
work. The dispute here, as found by the majority, is one between
an employer and a labor organization with regard to the hiring
of additional employees and does not concern the replacement
of the Company's drivers.
Although my review of the facts of this case raises consider-
able doubt in my mind as to whether the General Counsel has
sustained the burden of proving that the Respondent Union was
responsible for the conduct of the unloaders who were union
members, I do not need to reach that question. In the light of the
legislative history of Section 10 (k) and for the reasons I stated
in my dissenting opinion in Direct Transit Lines, Inc., I am of
the opinion that under Section 10 (k) the term "dispute" does
not mean a dispute, such as is presented here, between a union
and an employer in which 1 of the 2 alleged "groups" of
employees "have no real stake in the outcome, but find
themselves in alliance with the Employer either as agents or
necessary go-betweens."