Teamsters & Auto Truck Drivers Loc. No. 85

National Labor Relations Board - Board Decisions

Oct 3, 1973

206 N.L.R.B. 270 (N.L.R.B. 1973)

270 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters & Auto Truck Drivers Local
No. 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and American Container Service Incorporated i and
International Longshoremen's and Warehousemen's
Union, Local 10.,Case 20-CD-365
October 3, 1973
2(6) and (7) of the Act and that it will effectuate the
purposes of the Act to) assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties have stipulated, and we find that the
labor organizations involved are labor organizations
within the meaning of Section 2(5) of the Act.
DECISION AND DETERMINATION
OF DISPUTE
BY MEMBERS FANNING, KENNEDY, AND PENELLO
This is a proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, fol-
lowing a charge filed by the Employer, American
Container Service Incorporated, alleging that Broth-
erhood of Teamsters & Auto Truck Drivers Local No.
85 had violated Section 8(b)(4)(D) of the Act. A hear-
ing was held on June 16, 1972, before Hearing Officer
J. Mark Montobbio. All parties appeared at the hear-
ing and all were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to ad-
duce evidence bearing on the issues. Thereafter, the
Employer and the Longshoremen filed briefs in sup-
port of their positions.
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 rulings of the hearing officer made at the hear-
ing are free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this proceeding, the
Board makes the following findings:
1. THE BUSINESS OF THE EMPLOYER
American Container Service is a California corpo-
ration, with facilities located in the San Francisco Bay
area, engaged in the repair and storing of containers
used in the shipping industry. The Employer has been
in business since March 20, 1972, and between that
date and May 31, 1972, had performed services, and
obtained contracts for services to be performed, va-
lued in excess of $14,000, for companies engaged in
interstate commerce. The parties have stipulated that
it can reasonably be projected that on a 12-month
basis the Employer will perform services valued in
excess of $50,000. It is uncontested, and we find, that
the Employer is engaged in commerce or in an indus-
try affecting commerce within the meaning of Section
1 The name of the Employer appears as amended at the heanng. ,
III. THE DISPUTE
A. Background and Facts of the Dispute
The Employer is engaged in the business of repair-
ing and storing containers. Its employees are required
to do sheet metal, carpentry, fiberglass, painting, and
welding work, although only two of its six employees
are able to weld. As part of his job, an employee uses
a forklift to remove incoming damaged containers
from trucks and take them to his work station, where
the same employee makes repairs. After the container
is repaired, the employee uses a forklift to take it to
a storage area.
William Phillips, the Employer's president, testified
that on March 22 or 23, 1972, Robert Sick, a business
agent of Teamsters Local 85, claimed the work of
loading and unloading containers for the Teamsters
and threatened that, if it were not assigned to team-
sters, they would stop trucks from bringing in contain-
ers. Sick returned the following day with Andy
Leonard, business manager of Local 85, who also stat-
ed that if the loading and unloading were not per-
formed by teamsters they would stop trucks from
coming in. Phillips attempted to arrange a meeting
between Local 85 and ILWU Local 10, which his
employees belonged to, but was advised by Sick that
the executive board had decided that the work had to
be assigned to teamsters and that there was no need
to meet.
Thereafter, the Employer hired an independent
forklift service using teamsters to unload containers.
Phillips was then told by Tom Luther of the ILWU
that, if he used teamsters in the yard, longshoremen
would not load the containers aboard ship. The Em-
ployer then began unloading containers in the street
using a teamster and employing a longshoreman to
move them from there. This procedure was followed
for 4 or 5 days but proved too costly. The Employer
therefore reverted to using longshoremen exclusively.
A day and a half later, Sick came to Phillips' office
,and asked who was doing this unloading. Told they
were longshoremen, Sick reminded Phillips that he
had told him that if the work were not assigned to
teamsters they would stop, the trucks, and then pro-
ceeded to picket in front of the Employer's gate. The
206 NLRB No. 76
TEAMSTERS & AUTO TRUCK DRIVERS LOC. NO. 85' 271
picketing continued until enjoined following the filing
of the charge in this proceeding.
B. The Work in Dispute
The work in dispute is the off-loading or removal
of containers and vans from, and the on-loading or
placing of containers and vans on, truck trailers, chas-
sis, and flatbeds by American Container Service at its
facilities in the San Francisco Bay area.
C. The Contentions of the Parties -
The Employer and the ILWU contend that there is
reasonable cause to believe that Teamsters Local 85
violated Section 8(b)(4)(D) and that the proceeding is
properly before the Board for determination of the
dispute. They also contend, on the bases of economy,
efficiency, area practice, and Employer assignment,
that the work in dispute should be awarded to em-
ployees represented by the ILWU.
Teamsters Local 85 did not file a brief.
D. Applicability of the Statute
The charge alleges violations of Section 8(b)(4)(D)
of the Act. As outlined above, the Employer's presi-
dent, Phillips, testified that Respondent's business
agent, Sick, said that the work in dispute had to be
assigned to teamster3 and threatened to stop trucks
from entering the Employer's facilities if the work was
not assigned to them. When the work was assigned to
longshoremen, the threat was made good and the
picketing persisted for 10 days until enjoined follow-
ing the filing of the charge here.
Sick, the only other witness, testified essentially in
conformity with Phillips though contending, contrary
to Phillips' denial, that he sought to have Phillips sign
a Teamsters contract covering the Employer's entire
operations. Sick acknowledged that he told Phillips
the disputed work was within Teamsters jurisdiction
and also acknowledged that he did not have signed
authorization cards from any of the Employer's em-
ployees and wanted the disputed work. Sick admitted
.that he had not objected to longshoremen doing the
repair work during the period when members of Local
85 were employed on a subcontract basis to load and
unload. However, he asserted that he viewed that as
a stopgap measure while the Employer was deciding
whether or not to sign a Teamsters contract covering
all its employees.
Based on the entire record we conclude that there
is reasonable cause to believe that Section 8(b)(4)(D)
of the Act has been violated and that the dispute is
properly before us for determination.
E. Merits of the Dispute
1. Board certification and collective-bargaining
agreements
Neither of the labor organizations has been certi-
fied as collective-bargaining representative of the em-
ployees involved in the dispute.
Phillips testified that he had entered into an oral
agreement with the ILWU before the dispute, since
his employees had informed him that they were mem-
bers of that Union. Later, on or about April 4, the
Employer signed a written agreement with the ILWU.
However, that agreement was not placed in evidence
and there was no testimony concerning its terms.
2. Company and area practice
Since the dispute arose- when the Employer first
began operations, there is no past practice of the Em-
ployer. However, the record indicates that two other
companies in the area do similar work, one as part of
a much larger operation. These companies operate
three facilities used for container repair, at two of
which the employees are represented by the ILWU.
Employees at the third facility are represented by the
Sheet Metal Workers. At each facility, employees rep-
resented by a single union perform all necessary work,
including the loading and unloading of containers.
We conclude that this factor favors an award of the
disputed work to longshoremen.
3. Relative skills
There is no evidence in the record, or contention by
the parties, that the members of either Union are defi-
cient in the skills required to perform the work in
dispute.
4. Economy and efficiency of operation
At the time of the hearing the Employer had six
employees, each of whom was required to move and
make all necessary repairs on containers, with the
exception of welding. This includes using forklifts to
load and unload containers as well as doing carpen-
try, fiberglass, and painting work.
The need for the use of forklifts is sporadic. On one
day there might be 8 hours of work for a forklift and
on another, none.
It is apparent that for the economic and efficient
operation of the Employer's business its employees
must be able to perform all aspects of the operation.
However, the Employer's president, Phillips, testified
that he was told by Sick that if the Employer hired a
272 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teamster to load and unload he would not perform
any repair work . Phillips also testified , without con-
tradiction , that he could only have the loading and
unloading performed by a teamster working for an
independent forklift service by operating at a loss.
We conclude that this factor favors an'award of the
work in dispute to the Employer's employees repre-
sented by the ILWU.
CONCLUSIONS
Based on the entire record and after full consider-
ation of'all relevant factors , we shall assign the work
in dispute to the longshoremen. We reach this conclu-
sion particularly in view of the Employer 's assignment
and economy and efficiency of operation . In making
this determination we are assigning the disputed work
to employees who are represented by International
Longshoremen's and Warehousemen 's Union, Local
10, but not to that Union or its members.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended , and upon the basis of the
foregoing findings and the entire record in this pro-
ceeding, the National Labor Relations Board hereby
makes the following Determination of Dispute;
1. Employees employed by American Container
Service Incorporated, San Francisco, California, who
are currently ' represented by International
Longshoremen's and Warehousemen's Union, Local
10, are entitled to the off-loading or removal of con-
tainers and vans from, and the on-loading or placing
containers and vans on, trailer trucks, chassis, and
flatbeds by American Container Service at its facili-
ties in the San Francisco Bay area.
2. Brotherhood of Teamsters & Auto Truck Driv-
ers Local No . 85, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America, is not, and has not been , entitled by means
proscribed by Section 8(b)(4)(D) of the Act to force
or require the Employer to award the above work to
its members or to employees it represents.
3. Within 10 days from the date of this Decision
and Determination of Dispute , Brotherhood of Team-
sters & Auto Truck Drivers Local No. 85, Internation-
al Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, shall notify
the Regional Director for Region 20, in writing,
whether it will or will not refrain from forcing or
requiring the Employer , by means proscribed by Sec-
tion 8(b)(4)(D), to award the work in dispute to its
members or to employees it represents rather than to
employees represented by International
Longshoremen's and Warehousemen 's Union, Local
10.