Railway, Airline & Steamship Clerks

National Labor Relations Board - Board DecisionsApr 5, 1974

209 N.L.R.B. 1134 (N.L.R.B. 1974)

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers , Express and Station Employees and Memphis Leasing Company, Inc. and Southwestern Transportation Company and Highway and Local Motor Freight Employees' Local Union No. 667, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 26-CD-101 enterprise engaged in the interstate transportation of goods for which it received in excess of $250,000 during the 12-month period preceding the hearing. Ii. FHE LABOR ORGANIZATIONS INVOLVED The parties stipulated, and we find, that Railway Clerks and Local 667 are labor organizations within the meaning of the Act. April 5, 1974 DECISION AND DETERMINATION OF DISPUTE BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, follow- ing charges filed by Memphis Leasing Company, Inc., herein called the Employer, alleging that Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, herein called Railway Clerks, had violat- ed Section 8(b)(4)(D) of the Act. Pursuant to notice, a hearing was held in Memphis. Tennessee, on January 3 and 4, 1974, before Hearing Officer Melvin Hutson. All parties, including Highway and Local Motor Freight Employees' Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 667, appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence bearing on the issues. Thereafter, the Employer and Local 667 filed briefs. 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board makes the following findings: 1. BUSINESS OF THE EMPLOYER The Employer, a Tennessee corporation, is engaged in the local and interstate transportation of freight, and the unloading and transferral of goods from trains at its facilities in Memphis, Tennessee. During the 12-month period preceding the hearing, the Employer performed services valued in excess of $50,000 for St. Louis & Southern Railroad Company, herein called Cotton Belt or Cotton Belt Railroad, an III. THE DISPUTE A. Background and Facts of the Dispute Since before 1968, Cotton Belt has been engaged in the "piggyback" transportation of truck trailers by rail flatcar. The trailers are shipped pursuant to several kinds of bills of lading, termed "plans." Some plans provide that Cotton Belt is responsible only for delivery of trailers between one rail point and another. Others, identified as plans 2 and 7, provide that Cotton Belt will furnish trailers to the customer, pick them up when loaded, drive them onto and off of the flatcars (termed "ramping" and "deramping"), and deliver them to the ultimate destination. Until late 1960 or early 1961, Cotton Belt had one facility in Memphis, Tennessee, known as the Grab Hill ramp, for ramping, deramping, and delivering trailers under plans 2 and 7. This work, which essentially is the work in dispute, was done by drivers of Southwestern Transportation Company, herein called Southwestern, who at all relevant times have been represented by Local 667. Southwestern was and is a wholly owned subsidiary of Cotton Belt, but Cotton Belt has at no time exercised control over its labor policies. Around early 1961, Southwestern transferred its ramping and delivery operations to their present location at 171 West Industrial Boulevard, Memphis; since then its employees have not performed the disputed work. Cotton Belt contracted with a succession of trucking firms for performance of this work from 1961 until 1966. Finally, in 1966, it established what proved to be a continuous contrac- tual relationship with Distribution and Transporta- tion Services, Inc., and ultimately with the Employer, a subsidiary of the former corporation established in 1969 to do the trucking work at the Grab Hill ramp and elsewhere. Initially, the contracts were two-party agreements between Cotton Belt, identified as "Carrier," and Distribution and Transportation Services, identified as "Contractor," but since 1968, both Southwestern and Cotton Belt have been identified as "Carrier," the contracts have been signed for the "Carrier" only by an official of Southwestern, and payments under the contracts have been made through Southwestern. 209 NLRB No. 179 RAILWAY, AIRLINE & STEAMSHIP CLERKS 1135 In December 1973. Local 667 filed a grievance against Southwestern, alleging that it violated provi- sions in the parties' bargaining agreement restricting subcontracting by subcontracting the ramping, de- ramping, and local delivery of trailers at the Grab Hill ramp. The Employer's president, Dowel Stevens, heard of this grievance from his drivers and called Lewis Maloof, the assistant general chairman of the Railway Clerks, which represents the drivers at the Grab Hill ramp, to determine what the Union's position would be if the disputed work were assigned to employees represented by Teamsters. Maloof informed him that the work was Railway Clerks work and that if he didn't do something in regard to the situation at Grab Hill, he, Maloof, although unable to authorize a strike, could certainly recom- mend one against the Company and Southwestern. B. The Work in Dispute The work in dispute is the ramping, deramping, and local delivery of trailers transported on flatcars to the Grab Hill ramp, Memphis, Tennessee, by Cotton Belt Railroad under shipment plans 2 and 7. C. Contentions of the Parties Memphis Leasing contends that this case is properly before the Board for determination under Section 10(k), that there is no agreed-upon method for resolving the work dispute in question , and that its past practice , its bargaining agreement with Railway Clerks, the factor of efficiency. and the need to prevent loss of bargaining unit jobs support its assignment to employees represented by Railway Clerks. Local 667 contends that it has not acquiesced in Memphis Leasing's assignment of the work to employees represented by Railway Clerks, and that the Board should not award the work but should defer to the outcome of the grievance -arbitration process between Local 667 and Southwestern over the propriety of its subcontracting the disputed work. D. Applicability of the Statute Before the Board may determine a dispute pur- suant to Section 10(k) of the Act , it must be satisfied that there is reasonable cause to believe that Section 8(b)(4)(D) has been violated . We find reasonable cause for such belief here , in view of the fact that Railway Clerks threatened to "strike" Memphis Leasing and Southwestern should the disputed work be assigned to employees represented by Local 667. Further , since the Employer is not a party to, and would not be bound by, the grievance proceedings between Southwestern and Local 667, those proceed- ings do not constitute an agreed-upon and binding method for resolving the dispute herein and are thus insufficient to terminate the dispute.' E. Merits of the Dispute Section 10(k) of the Act requires the Board to make an affirmative award of the disputed work after giving due consideration to all relevant factors involved. The following factors are relevant to making a determination of the dispute before us: 1. Certifications and collective-bargaining agreements Railway Clerks has been certified by the Board as collective-bargaining representative of a unit of warehouse and maintenance employees and truckdri- vers of the Employer at its 595 West Alcy Road, Memphis, Tennessee, facility. The drivers to whom the Employer has assigned the disputed work at Grab Hill report daily to the West Alcy Road facility and are included in the certified unit. There is no evidence whether a bargaining agreement has been entered into for the certified unit. Local 667 has executed a contract with Southwest- ern on behalf of its drivers, but the contract does not specifically refer to the disputed work. 2. Employer and area practice The Employer's consistent practice has been to assign the disputed work to its own drivers represent- ed by Railway Clerks. There is no area practice. 3. Relative skills, efficiency, and economy of operations Employees of both Southwestern and the Employer are equally experienced in performing the disputed work. However, Southwestern does not presently have the additional equipment that would be necessary to perform the work in dispute. The additional equipment necessary would include at least two more diesel tractors than it now has. The Employer does have such equipment. 4: Gain or loss of work The record shows that, if the disputed work were assigned to employees represented by Teamsters, numerous drivers of the Employer would lose their jobs. I Printing Trades Specially Local No 531, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO (George Banta Company, Inc), 201 NLRB 255 1136 DECISIONS OF NATIONAL CONCLUSION Upon the entire record in this proceeding and after full consideration of all relevant factors, especially the Board certification which includes the drivers performing the disputed work , the Employer's past practice , the fact that the Employer is fully equipped to perform the disputed work, and the fact that many of the Employer's drivers would lose their jobs upon a contrary work assignment . we conclude that the employees of the Employer represented by Railway Clerks are entitled to the work in dispute, and we shall determine the dispute in their favor . We do not, however, award the work to Railway Clerks or its members. LABOR RELATIONS BOARD DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the Act and upon the basis of the foregoing findings and the entire record in this proceeding, the Board hereby makes the following Determination of Dispute: Employees of Memphis Leasing Company, who are currently represented by Brotherhood of Rail- way, Airline and Steamship Clerks , Freight Han- dlers, Express and Station Employees, are entitled to perform the work of ramping , deramping, and local delivery of trailers delivered on flatcars to the Grab Hill ramp , Memphis, Tennessee , by Cotton Belt Railroad under shipment plans 2 and 7.