Teamsters, Chauffeurs, Warehousemen & Helpers, Loc. 386

National Labor Relations Board - Board Decisions

Jul 8, 1968

172 N.L.R.B. 1037 (N.L.R.B. 1968)

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 1037
Teamsters , Chauffeurs , Warehousemen & Helpers,
Local 386, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of
America and R . P. B. Trucking , Inc. Case
20-CC-734
July 8, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On February 14, 1968, Trial Examiner George
Christensen issued his Decision in the above-enti-
tled proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respon-
dent filed 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
The complaint alleged that Respondent violated
Section 8(b)(4)(B) by invoking pressures against
Yolo Transportation Company Incorporated, in
furtherance of an alleged dispute with R. P. B.
Trucking Incorporated. We affirm the Trial Ex-
aminer's dismissal of the complaint. In so doing, we
rely upon the General Counsel's failure to establish
that Respondent's conduct with respect to Yolo
was for any objective other than enforcement of ar-
ticle 17 of the subsisting collective-bargaining
agreement between Respondent and a multiem-
ployer association, of which Yolo is an employer-
member. Article 17, in our opinion, is a lawful
wage standards provision, designed to assure that
Yolo and other trucking concerns bound by the
multiemployer contract do not perform unit work
through outside contractors whose wage and fringe
benefit costs are inferior to those of Yolo and other
employers within the multiemployer unit.
Our dissenting colleague finds Respondent's ob-
jective with respect to Yolo to have been secondary
and unlawful. In doing so, he relies upon two alter-
native grounds. He first asserts that the wage stan-
dards clause could not lawfully be imposed upon
the relationship between Yolo and R. P. B. Despite
the absence of any allegation that article 17 is
proscribed by Section 8(e), the clause is found
secondary on grounds that the work performed by
R. P. B. was not "fairly claimable" and, as such, not
subject to lawful regulation by an otherwise valid
wage standards clause.
The dissent's view that R. P. B. was not perform-
ing unit work is based upon the fact that R. P. B.
was engaged in a segment of Yolo's work which
was seasonal in nature, that Yolo had neither the
trucks nor manpower to perform the work itself,
and that Yolo had subcontracted this work for
many years. In our opinion these factors do not
negate Respondent's legitimate and primary in-
terest in regulating the terms under which this work
was performed by nonunit employees. R. P. B. was
undeniably engaged in "overflow" work or work
that Yolo itself did not, at that time, have equip-
ment to perform. However, the hauling contracted
by Yolo to R. P. B. entailed the same skills as held
by Yolo's permanent work force and did not differ
significantly from that historically performed in the
multiemployer unit. Indeed, Yolo's own work force
was occasionally called upon to perform the
seasonal operations normally contracted out to sub-
haulers like R. P. B. Our dissenting colleague con-
tends that Yolo's seasonal truck driving work was
not fairly claimable by the principal unit in this case
because the subhaulers "merely supplemented the
work" of Yolo's employees during the rush season.
For this reason, the dissent asserts, the overflow
work in "a very real sense" was not "'fairly claima-
ble by the bargaining unit,"' citing Meat and
Highway Drivers, Local Union No. 710 [ Wilson &
Co.] v. N.L.R.B., 335 F.2d 709, 713 (C.A.D.C.). In
that case, however, the court quoted with approval
the minority Board opinion to the effect that work
closely allied and, in part, identical to that per-
formed by unit employees must be considered unit
work even though it had never been customarily
performed by unit members. The court concluded
that overflow truck driving work, resulting from the
obsolescence of trucks, failure to buy, or to lease
new equipment, or the like, was a proper subject
for a union standards subcontracting clause
because it "would at least remove from the em-
ployer the temptation of cheap labor through sub-
standard contractors." Moreover, Highway Truck
Drivers and Helpers, Local 107 (S & E McCormick,
Inc.), 159 NLRB 84, reversed on other grounds sub
172 NLRB No. 102
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nom. A . Duie Pyle, 383 F.2d 772 (C.A. 3), is hardly
authority for the conclusion that the Union's con-
duct in the instant case was unlawful . There the
subcontracting clause , identical to one found lawful
by the court in Truck Drivers Union Local No. 413
[Patton Warehouse , Inc., and Brown Transport
Corp.] v. N L.R.B., 334 F.2d 539 (C.A.D.C.),
required adherence to wages , hours , and conditions
of employment " established by labor unions having
jurisdiction over the type of work performed."
Over the disagreement of two Board Members the
principal Board opinion adopted as its own the
court 's interpretation that such a subcontracting
clause was primary in nature and therefore not
violative of Section 8(e). It would seem to us, a for-
tiori , that the clause in the instant case, limited to
wages, hours, and conditions of employment for
"work covered by this agreement," is a lawful work
preservation clause and that the Union was lawfully
entitled to enforce it. We point out that in S & E
McCormick the work cognizable under the subcon-
tracting clause included extra work when the regu-
lar employees were all working and overflow loads.
In the instant case the work subcontracted was
extra or seasonal work , identical to that performed
by the regular employees . We see no distinction
between seasonal and overflow or extra work
available when regular employees are fully occu-
pied . Accordingly, we conclude in disagreement
with our dissenting colleague , that the clause in-
voked against Yolo with respect to R. P . B. was pri-
mary rather than secondary in its application.
The dissent , alternatively , would find a secondary
objective on the theory that Respondent, in
requesting Yolo's adherence to article 17, was mo-
tivated by its past unsuccessful efforts to secure
recognition from R. P. B. In this respect, the dissent
notes that in the spring of 1967, Respondent and a
sister local unsuccessfully sought to organize R P.
B. Against this background , the dissent cites the
following to support an inference that Respondent
utilized article 17 in retaliation against R. P. B.: (1)
Respondent delayed enforcement of the clause
against R. P. B. until after all possibilities for or-
ganizing R. P. B. had been foreclosed , and (2)
Respondent failed to seek enforcement of the
clause as against Yolo 's other subhaulers . However,
as the record does not show that Respondent was
aware of Yolo's retention of R. P . B. as a subhauler
at any time prior to its enforcement of the clause,
the timing of Respondent 's action can hardly be re-
lated to the past effort to organize R. P. B. Also
without record support is the finding that Respon-
dent had no interest in enforcing the clause against
Yolo's subhaulers other than R. P. B. Thus, the
record shows that Respondent questioned Yolo
concerning Bradley and Birtschi , a trucker, and
also requested a list of all subhaulers engaged by
Yolo when the inquiry concerning R. P. B. was
made . Respondent 's investigation of this list showed
that only one other subhauler , Forest Freeze, was
situated similarly to R. P . B. in that they were the
only two subhaulers furnishing a significant number
of trucks to Yolo. Respondent 's failure to take ac-
tion against Forest Freeze is adequately explained
by the fact that the latter was signatory to Respon-
dent 's recent agreement and hence was presumably
complying with unit standards . Furthermore, the
record clearly shows that R. P. B.'s employment
benefits generally were substandard to those of
Yolo. Respondent knew this but was still reluctant
to invoke article 17 until it could ascertain whether
R. P. B. was matching unit labor costs for work per-
formed on behalf of Yolo. In the circumstances,
and as there is no evidence that Respondent had a
reasonable basis for suspecting that any Yolo sub-
haulers other than R. P. B. were operating at less
than unit standards , Respondent 's request that Yolo
obtain information on standards paid by R. P. B.
while performing on Yolo contracts was neither in-
dicative of a discriminatory application of article 17
nor adequate to refute the clear evidence that
Respondent 's sole objective was the enforcement of
a lawful clause designed to protect the standards
under which unit work was performed by Yolo's
subcontractors.
For the foregoing reasons , we affirm the Trial Ex-
aminer and shall dismiss the complaint in its en-
tirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the complaint herein be , and it hereby
is, dismissed in its entirety.
CHAIRMAN MCCULLOCH, dissenting:
For the following reasons , I dissent from my col-
leagues ' decision to adopt the Trial Examiner's
recommendation for the dismissal of the complaint.
Yolo Transportation Co., Inc. (Yolo), is a
trucking company which employs approximately 12
regular drivers and owns the same number of
trucks . From July through October, Yolo is
primarily engaged in hauling agricultural produce
from fields to canneries. During this period, it in-
creases its normal number of drivers and trucks by
hiring as many as 80 additional drivers and trucks.
It secures the additional drivers and trucks by en-
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 1039
tering into subhaul contracts with owner-drivers,
and with other haulers who may have as many as
eight trucks. R. P. B. Trucking, Inc. (R. P. B.), the
Charging Party, had for 5 years preceding 1967
supplied Yolo with from four to seven trucks and
drivers during the rush season.
Yolo's drivers are represented for collective-bar-
gaining purposes by Respondent. Yolo is a member
of California Trucking Association which has a col-
lective-bargaining contract with Respondent. Arti-
cle 17 of that contract provides:
For the purposes of this agreement the Em-
ployer agrees to refrain from using the services
of any person who does not observe the wages,
hours, and conditions of employment herein
set forth for all work covered by this agree-
ment. In the event the Employer violates this
Article, the Union shall be free to take
economic action upon twenty-four (24) hours
notice notwithstanding any other provisions
contained in this agreement.
Prior to 1967, R. P. B.'s drivers were not or-
ganized. During March and April 1967, Respon-
dent's sister Local 439, which is a member of the
same Teamsters Joint Council as Respondent,
picketed R. P. B. in an unsuccessful attempt to
bring about such organization. In late April, on the
basis of a card check, R. P. B. recognized the
Seafarers Union as the representative of its drivers.
In May Local 439 renewed its picketing of R. P. B.
Thereupon, R. P. B. filed unfair labor practice
charges against Local 439 alleging a violation of
Section 8(b)(7)(A). In retaliation, Respondent and
Local 439 filed unfair labor practice charges
against R. P. B. and the Seafarers. The Board's Re-
gional Director dismissed the Teamsters' unfair
labor practice charges in July. Respondent and
Local 439 appealed the dismissal to the General
Counsel of the Board, who upheld the Regional
Director's action in a ruling issued on August 4.
Meanwhile the Regional Director issued a com-
plaint against Local 439 on the basis of R. P. B.'s
unfair labor practice charges (Case 20-CP-251). A
Trial Examiner found in this case that Local 439, as
late as May 18, 1967, had unlawfully picketed R. P.
B. with an object of forcing or requiring R. P. B. to
recognize and bargain with Respondent Union at a
time when R. P. B. had lawfully recognized the
Seafarers. When no exceptions to the Trial Ex-
aminer's Decision were filed, the Board on Febru-
ary 19, 1968, adopted the Trial Examiner's Decision.
Early in September, after ascertaining that R. P.
B. was working for Yolo, representatives of
Respondent asked Yolo to secure a letter from R.
P. B. certifying to the wage rates, health and wel-
fare contributions, pension contributions, and
layover compensation being paid by R. P. B. to its
drivers working on the Yolo job, so that Respon-
dent could determine if R. P. B. was meeting the
standards required by article 17, set forth above, in
the collective-bargaining contract to which Yolo
was a party.' Respondent threatened to picket Yolo
unless the information requested was received by a
certain date. Respondent also told its steward at the
Yolo job that if it did not receive the requested in-
formation, it might picket Yolo's gate, and that the
employees were to respect the picket line. When
Yolo failed to receive the information which it had
requested from R. P. B., it cancelled its contract
with the latter.
The complaint alleges that Respondent induced
the employees of Yolo to engage in a strike, and
threatened Yolo, with an object in both cases of
forcing Yolo to cease doing business with R. P. B.
or forcing R. P. B to recognize and bargain with
Respondent, although the latter has not been cer-
tified as bargaining representative of R. P. B.'s em-
ployees.
The Trial Examiner found that Respondent
threatened "to picket Yolo and did induce or en-
courage an employee of Yolo to cease work for the
purpose of causing Yolo to cease doing business
with R. P. B." Respondent has not filed exceptions
to this finding, and, in any event, it is a reasonable
one based on all the evidence.
This finding, that an object of Respondent's con-
duct was to cause Yolo to cease doing business with
R. P. B., establishes a violation of Section
8(b)(4)(B ),2 unless, as contended by Respondent,
the aforementioned article 17 is lawful and sanc-
tioned its conduct. The General Counsel has not at-
tacked the legality of article 17 in his complaint.
But he has not on that account conceded its legality
either per se or in its application to the situation as
'The Trial Examiner found that Respondent was familiar with the terms
of the R P B -Seafarers collective-bargaining contract and knew that the
wage and other economic provisions thereof were inferior to those of the
Yolo-Local 386 contract He speculated , however , without any evidentiary
support , that R P B might be granting economic benefits to the R P B
employees on the Yolo job in excess of those set out in the R P B -
Seafarers contract
t Section 8(b)(4)(i) and (u )( B) provides that it shall be an unfair labor
practice to induce employees to engage in a strike, or to threaten , coerce,
or restrain employers where in either case "an object thereof " ' is
(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other
producer or to cease doing business with any other person, or forc-
ing or requiring any other employer to recognize or bargain with a
labor organization as the representative of his employees unless such
labor organization has been certified as the representative of such em-
ployees under the provisions of Section 9 (Emphasis supplied ]
It is sufficient to spell out a violation of Section 8(b)(4)(B ) that the labor
organization had as an object one of those specified in that section
N L R B v Denver Building and Construction Trader Council, 341 U S
675
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it existed with respect to Yolo's business dealings
with R. P. B. Without passing on the question of the
per se legality of article 17, I am satisfied in the
facts of this case that as applied to the R. P. B.
situation , its enforcement against Yolo did not have
a legitimate work preservation objective and there-
fore is not a valid defense to Respondent 's conduct.
We have said that a union standards clause is
lawful on the assumption that " in the absense of
any indication to the contrary ... [ the] scope [of
the clause ] is limited to the contracting out of work
which otherwise would be performed by members
of the bargaining unit."' Although article 17 is
labeled "SUBCONTRACTING," the evidence is that as
applied to Yolo 's business relationship with R. P. B.
it did not have a unit work preservation function,
but that Respondent utilized it " to satisfy union ob-
jectives elsewhere."'
Yolo employed approximately 12 drivers and the
same number of trucks on a year -round basis. Dur-
ing the few months of the crop-gathering season, it
had to increase the number of drivers and trucks
manyfold. To handle this seasonal increase of its
business , it had for many years , apparently without
protest from Respondent , followed the practice of
employing owner -drivers and subhaulers such as R.
P. B. There was never any question of substituting
drivers of subhaulers for Yolo's own permanently
employed drivers. The former merely supplemented
the work of the latter during the rush season. In a
real sense , therefore, Yolo did not " subcontract" to
R P B. work "fairly claimable by the bargaining
unit ," and thus article 17 did not serve to preserve
such jobs for the bargaining unit employees s
That Respondent in coercing Yolo to cease doing
business with R P. B. was not really concerned
about any possible work preservation aspect of arti-
cle 17, but was motivated by its unsuccessful efforts
to secure recognition from, and a collective-bar-
gaining contract with, R. P. B. is evidenced by the
sequence of events. Thus Respondent made no ef-
fort to enforce article 17 until after the Regional
Director had issued a complaint against Respon-
dent in Case 20-CP-251, and the General Counsel
had upheld the Regional Director 's dismissal of un-
fair labor practice charges against R P B. and the
Seafarers, which ended the immediate possibility of
securing recognition from R. P. B. by direct action
against that Company. Further, as found by the
Trial Examiner, Respondent made no effort simul-
taneously to enforce article 17 against other sub-
haulers of Yolo who were in the same position vis-
a-vis Yolo as was R. P B. It seems to me , therefore,
that Respondent acted as it did against Yolo, not
because of concern about the work of Yolo's em-
ployees, but because it had been frustrated in its
direct effort to organize R. P. B.'s employees, and
in retaliation resorted to pressure against Yolo, a
neutral , to bring about a cessation of business
between Yolo and R. P. B. Such conduct is clearly
forbidden by Section 8(b)(4)(B).
Accordingly, contrary to the Trial Examiner, I
would find that, as it induced or encourage em-
ployees to engage in a strike , and threatened an
employer, with an object in both cases of causing
Yolo to cease doing business with R. P. B., Respon-
dent violated Section 8(b)(4)(i) and (ii )( B) of the
Act.
' Highway Truck Drivers and Helpers , Local 107, Teamsters ( S & L Mc-
Cormick, Inc ), 159 NLRB 84, 102 , Truck Driver s Union Local No 413
[Patton Warehouse , Inc [ v N L R B , 334 F 2d 539, 548 (C A D C )
4 National Woodwork Manufacturers Association v N L R B, 386 U S
612,644
' Meat and Highway Drivers , Local 710, Teamsters ( Wilson & Co ) v
NLRB,335F2d709 , 713(CADC )
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN , Trial Examiner: A hearing
was held on November 14, 1967,' at Stockton,
California, on issues raised by a complaint issued
October 20 based upon a charge filed September
11 by R. P. B. Trucking, Incorporated of River-
bank, California , hereafter R. P. B., alleging that
Teamsters Local 386 of Modesto , California,
hereafter Local 386, violated Section 8(b)(4)(i)
and (ii)(B) of the National Labor Relations Act, as
amended , hereafter the Act, by threatening to
picket Yolo Transportation Company, Incor-
porated of Riverbank, California, hereafter Yolo,
and also by inducing or encouraging Yolo's em-
ployees to cease work , all for the purpose of bring-
ing pressure upon Yolo to cease doing business
with R. P. B. and/or for the purpose of forcing R. P.
B. to recognize and bargain with Local 386 as the
representative of its employees.
Local 386's answer admitted the commerce facts,
that R. P. B. was an employer engaged in com-
merce and in a business affecting commerce, and
that Local 386 was a labor organization within the
meaning of the Act. Local 386 also conceded that
Harvey Killman , its business agent , was its agent
acting upon its behalf at all times pertinent. It de-
nied that Killman at any time informed Yolo's
manager and a Yolo employee that Local 386 in-
tended to picket Yolo if Yolo continued to do busi-
ness with R. P. B. and denied committing any viola-
tion of the Act.
' All dates refer to 1967 unless otherwise noted
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386
The Charging Party, R. P. B , did not appear at
the hearing.' Appearances were entered by the
General Counsel and Local 386. They were af-
forded full opportunity to examine and cross-ex-
amine witnesses, to introduce documentary
evidence, to argue orally and to submit briefs. Both
submitted briefs.
Based upon a review of the entire record,' obser-
vation of the witnesses and perusal of the briefs, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. COMMERCE AND LABOR ORGANIZATION
The complaint alleged and the answer admitted
that R. P. B. in the course of its business operations
from April 1, 1966, to March 31, 1967, performed
hauling services valued in excess of $50,000 for the
Best Fertilizer Company, a company doing business
in the State of California, that Best Fertilizer Com-
pany annually sells and ships goods and services
valued in excess of $50,000 directly to customers
located outside the State of California, that R. P. B.
between those same dates performed hauling ser-
vices for the United States Army valued in excess
of $75,000, and that the latter services had a sub-
stantial impact upon the national defense.
Local 386 conceded, and the Trial Examiner
finds, that R. P. B. is an employer engaged in com-
merce in an industry affecting commerce and that
Local 386 is a labor organization within the mean-
ing of Section 2(2), (5), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
The facts are virtually undisputed. Local 386's
witnesses did not contradict the testimony of Yolo's
manager and his secretary concerning that which
was not stipulated, but merely supplemented their
testimony. The issues, as will be developed later,
arise out of the inferences to be drawn from the
proven facts.
A. Events Preceding September
During March and April, Teamsters Local 439,
Local 386's sister local and, like it, an affiliate of
Teamsters Joint Council No. 38 picketed R. P. B.
After the April picketing, R. P. B. posted a notice
on its bulletin board informing its employees of an
intended check by the California Mediation Service
of authorization cards executed by R. P. B. em-
ployees at the behest of an affiliate of the Seafarers
Union (hereafter Seafarers) to determine the
authenticity of the signatures thereon and, based
t Prior to the hearing , Local 386 moved to dismiss the proceeding on the
ground R P B had ceased to do business after October 3 The General
Counsel filed opposition to the motion Both prior to and at the hearing the
Trial Examiner denied the motion on the ground that R P B might renew
business thereafter and the added ground that Section 8(b)(4) was
designed to protect neutrals (in this case Yolo) who were still in business
1041
thereupon, whether the Seafarers had been
designated by a majority of R. P. B.'s drivers and
shopmen (approximately 30 in number) as their
collective-bargaining representative.
Immediately after posting of the notice, Local
386 secured four4 authorization cards from R. P. B.
employees designating it as their collective-bargain-
ing representative and, on such basis, Local 386
protested the proposed check. On receiving such
protest, the California Mediation Service refused to
proceed further.
The Seafarers then (still in April) filed a petition
with the National Labor Relations Board (hereafter
the Board) in Case 20-RC-7517 seeking certifica-
tion from the Board as the exclusive representative
of the R. P. B. driver-shopmen unit. On April 17
Local 386 filed an intervention in that proceeding
based upon the four cards earlier noted.
On April 18 the Seafarers withdrew the petition
and submitted its authorization cards for a check to
determine if a majority of R. P. B.'s employees had
signed valid authorization cards designating the
Seafarers as their collective-bargaining representa-
tive. The check resulted favorably to the Seafarers
and, based thereupon, in late April R. P. B. recog-
nized the Seafarers and executed a contract cover-
ing the wages, hours, and working conditions of the
driver-shopmen unit.
Despite the foregoing, in May Local 439 renewed
its picketing of R. P B. R. P B. promptly filed
charges against it alleging violation of Section
8(b)(7)(A) of the Act (Case 20-CP-251). On June
6 Locals 386 and 439 retaliated with charges
against R. P. B. and the Seafarers (Cases
20-CA-4560 and 20-CB-1695) alleging their
violation of Section 8 by virtue of the former's
recognition of and execution of a contract with the
latter as described above. In July the charges were
dismissed; appeals of the dismissals were denied in
August.
Yolo's freight volume is heaviest between July 1
and October 3 1, during which period it is primarily
engaged in hauling agricultural products from fields
in the area within which it operates to canneries;
during this time, it augments its normal work force
of 14 trucks and drivers by hiring approximately 80
additional trucks and drivers (at the peak). It
secures such additional trucks and drivers by enter-
ing into subhaul contracts, paying the operators on
a tonnage basis. Most of the subhaulers (approxi-
mately 50) are one-truck owner-operators. The
balance operate two or more trucks, in no case
more than eight. For over 5 years preceding 1967,
R. P. B. was employed by Yolo as one of the sub-
haulers. In 1967 R. P. B. was employed as in the
3 At the time the General Counsel rested his case, Local 386 moved for
dismissal on the ground the General Counsel had failed to establish a prima
facie case of violation of the Act The Trial Examiner reserved ruling The
motion is disposed of by this Decision
' In May Local 386 secured a fifth card from an R P B employee
354-126 O-LT - 73 - pt 1 - 67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past , supplying between four and seven trucks and
drivers.
B. The Events of September
During the afternoon of Tuesday, September 5,
Killman and another Local 386 business represent-
ative, Jim Crawford, visited Yolo's manager, Irwin
Schali, at his office. Schali's secretary, Odette
Roche, was also present . Killman asked if R. P. B.
was working for Yolo, and Schali replied that it
was. Killman also asked if Bradley and Bertschi
were working for Yolo, and Schali replied that it
was not.' Killman then asked Schali to secure a
letter from R. P. B. by Friday, September 8, certify-
ing to the wage rates , health and welfare contribu-
tions, pension contributions, and layover compen-
sation being paid by R. P. B. to its employees work-
ing on the Yolo job, so Local 386 could determine
if R. P. B. was meeting the standards required by
article 17 of the Yolo-Local 386 contract. Killman
went on to state that if the information was not
produced by September 8, Local 386 would take
economic action against Yolo, citing article 17 as
his authority for so doing (see the last sentence,
footnote 5), and commented that he would hate to
be walking a picket line over the weekend. Schali
promised that he would try to secure the informa-
tion Killman had requested by the date specified,
and promptly visited the offices of R. P. B., where
he saw Ray Bye and Bob Puckett, its owners. He in-
formed Bye and Puckett of the request, that Kill-
man had requested it, and the reason therefor.
They informed Schali that their drivers were
represented by the Seafarers, and covered by a con-
tract' between the Seafarers and R. P. B., that they
would get the information together, but that it
would take some time.
Killman and Crawford returned to Schali's office
in the late afternoon of September 8 and asked for
the promised information. Schali said R. P. B. had
not supplied it yet, but that R. P. B. had promised to
furnish it on Monday, September 11, and that he
would try to have it for Killman then. He asked
Killman if Local 386 intended to picket R. P. B. if
Yolo could not supply the information on Sep-
tember 11. Killman said no, Yolo would be
picketed, inasmuch as Local 386's contract was
with Yolo, and article 17 thereof specifically per-
mitted Local 386 to take economic action against
Yolo for its violation.
' Killman had information that the wage rates , etc , of Bradley and
Bertschi employees were inferior to Yolo's
' Article 17 states, "For the purpose of this Agreement the Employer
agrees to refrain from using the services of any person who does not ob-
serve the wages , hours and conditions of employment herein set forth for
all work covered by this Agreement In the event the Employer violates this
Article, the Union shall be free to take economic action upon twenty-four
(24) hours notice notwithstanding any other provisions contained in this
Agreement -
After either the September 5 or 8 conversation
with Schali at Schali's office, Killman stopped in
the truck yard on his way out from Schali's office
and contacted John Vieira, an employee of Yolo
and Local 386's shop steward. Killman informed
Vieira that there might be a picket at Yolo's gate if
Killman did not receive information he had
requested of Schali; he instructed Vieira to have
the men respect the picket line if there was one
there. Killman did not mention R. P. B., only that
there might be a picket if certain information Kill-
man needed was not produced.'
Schali subsequently telephoned R. P. B. and in-
formed Bye he had to have the requested informa-
tion for Killman by September 11. Bye promised to
supply it, but again failed to have the requested in-
formation for Schali by the time Killman again
came back in the afternoon of September 11.
When informed on September 11 that Schali still
could not produce the requested information, Kill-
man asked Schali what he was going to do about R.
P. B. Schali said he didn't have any choice-he
would discontinue R. P. B.'s employment. Killman
told him he was doing the right thing, that if he
received the requested information at a later date
and Local 386 found R. P. B.'s standards sufficient
to satisfy the requirement of article 17 of the Yolo-
Local 386 contract and so advi'ed Yolo, Yolo
could then rehire R. P. B. Shortly thereafter, Schali
telephoned Bye and told him that since he had not
supplied the information requested, Yolo would
have to terminate R. P. B.'s services . Bye replied
that he could not get the requested information,
that he would talk to his lawyer and then contact
Yolo. Yolo never heard from R. P. B. thereafter,
did not employ R. P. B. at any time subsequent to
September 11, and hired four owner-operators to
replace R. P. B.
Some time during the course of the three conver-
sations described above, Killman asked Schali to
identify the other subhaulers Yolo was using (not
including owner-drivers). Schali's secretary, Mrs.
Roche, showed Killman a list of subhaulers operat-
ing two or more trucks, which included (besides R.
P. B.) the names of Forest Freeze, Moss Brothers,
Gregg, Yo Brothers, and Youngclaus. Killman did
not request any information in September concern-
ing the wage rates or other benefits and compensa-
tions paid by any subhauler listed other than R. P.
B. However, some time during the next month (Oc-
tober), Killman asked Schali to supply information
with regard to the wages, etc., paid to Forest Freeze
' While Killman was familiar with the terms of the R P B -Seafarers con-
tract and knew that the wage and other economic provisions thereof were
inferior to those of the Yolo-Local 386 contract, it was nevertheless possi-
ble that R P B might be granting economic benefits to the R P B em-
ployees employed on the Yolo job in excess of those set out in the R P B -
Seafarers contract If this were the case and Local 386 nevertheless forced
R P B off the Yolo job, it would expose Local 386 to potential legal lia-
bilities
" It is clear from the record that Killman was referring to the R P B
wage and related information he had asked Yolo to produce
TEAMSTERS, CHAUFFERUS, WAREHOUSEMEN & HELPERS , LOC. 386 1043
employees on the Yolo job, relating that he had
been informed in the interim by the business agent
of another Teamsters local that Forest Freeze had
not renewed its contract with the Teamsters (it had
been under Teamsters contract the preceding
year). Forest Freeze's employment by Yolo ended
shortly thereafter (a normal expiration, due to the
expiration of the seasonal demand which had occa-
sioned its employment). On being so informed, Kill-
man dropped the Forest Freeze matter (he had also
dropped further inquiry re R. P. B. during the 1966
season for the same reason).
C. Contentions of the Parties
The General Counsel contends that Local 439
and Local 386 were engaged in a joint effort to
coerce R. P. B. into recognizing and signing a con-
tract with Local 386 covering R. P. B.'s drivers and
shopmen from the time Local 439 commenced
picketing R. P. B. in March to and including Local
386's September efforts to force Yolo to cease em-
ploying R. P. B as a subhauler. He relies upon the
two locals' affiliation with the same Joint Council,
the March, April, and May picketing of R. P. B. by
Local 439, the attempted intervention by Local 386
during April in the Seafarer-R. P. B. invocation of
the services of the California Mediation Service and
the Board, and the attempts by the two locals
through August to cause the Board to issue a com-
plaint aimed at voiding R. P. B.'s recognition of the
Seafarers and the contract between them.
Alternatively, the General Counsel contends that,
assuming arguendo, Local 386 only intended to en-
force article 17 of its contract with Yolo, it
nevertheless violated Section 8(b)(4)(i) and (ii)(B)
of the Act in that it enforced that article not for the
purpose of assuring bargaining unit work by the
bargaining unit, but rather for the purpose of in-
fluencing the wages and other economic benefits of
R. P. B.'s employees.
Local 386 points out that Killman's efforts were
directed exclusively to Yolo, notes that General
Counsel does not question the legality or enforcea-
bility of article 17 of the Yolo-Local 386 contract,
contends that its actions constituted primary activi-
ty to protect its area standards, and lastly argues
that such activity is not unlawful secondary activity
prohibited by Section 8(b)(4)(i) and (ii)(B) of the
Act.
D. The Issues
The issues to be resolved on the basis of the
evidence and contentions of the parties are:
1. Whether Local 386 coerced Yolo into ceasing
to do business with R. P. B.;
2. If so, whether Local 386's purpose was to
bring pressure upon R. P. B. to recognize Local 386
and sign a contract with it or to enforce article 17
of the Yolo-Local 386 contract;
3. Assuming the latter was Local 386's purpose,
'whether Local 386's action was unlawful secondary
activity in that it was intended to regulate R. P. B.'s
employment policies, rather than to assure per-
formance of bargaining unit work by employees
within the unit.
1. Did Local 386 coerce Yolo into ceasing to do
business with R. P. B.
Local 386 does not really dispute the General
Counsel's contention that it brought pressure upon
Yolo in order to cause Yolo to cease doing business
with R. P. B. Far from disputing the testimony of
Yolo's manager and his secretary that Killman dur-
ing the three conferences in September threatened
to picket Yolo if Yolo did not secure satisfactory
proof that R. P. B. was paying wage rates and other
economic benefits equal to or in excess of those set
out in the Yolo-Local 386 contract, Killman cor-
roborated it. Nor did Killman dispute Vieira's
testimony that Killman told him there might be a
picket at Yolo to carry out that threat and to see
that the men respected the picket line.
The Trial Examiner therefore finds and con-
cludes that Local 386 in September did threaten to
picket Yolo and did induce or encourage an em-
ployee of Yolo to cease work for the purpose of
causing Yolo to cease doing business with R. P. B.
2. Did Local 386 intend to enforce its area wage
standards or to secure recognition and bargaining
from R. P. B.
Between March and May it appears clear that
Local 439 attempted to coerce R. P. B. into recog-
nizing Local 386 as the representative of its drivers
and shopmen and executing a contract with it.
Though Local 439 abandoned direct action against
R. P. B. after the May picketing resulted in charges
filed by R. P. B. with the Board, it is reasonable to
conclude from the fact they sought thereafter to
persuade the Board to issue a complaint against R.
P. B and the Seafarers which would have resulted
(if successful) in the setting aside of the Seafarer's
recognition by R. P. B. as the representative of its
employees and the nullification of the R. P. B.-
Seafarers contract, that they persisted in such ob-
jectives through July. However, there is no
evidence to support an inference that they con-
tinued to seek these objectives after the final
dismissal of such charges on August 1.
It is difficult to accept the General Counsel's
premise that Local 386 persisted in seeking recog-
nition and a contract objective after the August 1
dismissal. Local 386 no longer had any lawful basis
for challenging the Seafarer's representation status
and the legality of the R. P. B.-Seafarer contract;
since the contract probably had at least 2 years to
run, Local 386 could not challenge the Seafarers'
right to continued representation of R. P . B.'s em-
ployees until the contract expired, it was hardly
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
likely that any pressure from the Teamsters at that
point could cause R. P. B. to give up the competi-
tive advantage ( labor cost wise ) the Seafarer con-
tract gave it and expose itself to damage and in-
junctive action by the Seafarers if R. P . B. sought to
abrogate the R. P. B.-Seatarer contract. It is much
more logical to conclude instead that , having failed
in its efforts to prevent R. P. B.'s recognition of the
Seafarers and its execution of a contract with the
Seafarers containing wage rates and other
economic provisions substantially lower than the
wage rates and other economic provisions of Local
386's contract with Yolo and other truckers in the
area , Local 386 would act to protect its area con-
tract standards with Yolo and others by attempting
in any manner possible to divert work within its ju-
risdictional area away from R. P. B. and to other
truckers equalling or exceeding its standards.
When Yolo's manager queried Killman as to
whether he intended to picket R. P. B. if the infor-
mation concerning the wages , etc., being paid R. P.
B. drivers working on the Yolo job was not
forthcoming , Killman replied in the negative, stat-
ing that Local 386's dispute was with Yolo. Had
Killman 's September activities at Yolo been
directed at bringing pressure on R. P . B. to recog-
nize and sign a contract with Local 386, one would
expect some contact between Local 386 and R. P.
B., but there was not any such contact.
The Trial Examiner therefore concludes that Kill-
man's September activities were intended to cause
Yolo to cease doing business with R . P. B. in the
hope and expectation that work would then be
diverted to other truckers conforming to Local
386's standards . It is not unreasonable to conclude
further that Local 386, suspecting that R. P. B. wel-
comed representation by the Seafarers because the
Seafarers were willing to execute a contract for
lower wage rates and other economic benefit provi-
sions ( thereby lowering its labor costs ) than Local
386 had established within the area, hoped that by
diverting such work away from R. P. B. and to such
other truckers R. P. B. might be put out of business,
thereby removing a threat to the preservation of
Local 386's wage and other economic benefit stan-
dards in the area . It has always been a union objec-
tive to remove the price of labor as a competitive
factor among employers within its jurisdiction by
equalizing wage rates and other economic benefits.
Unions reason that the continued operation of a
substandard employer within their jurisdictional
areas poses a constant threat to the maintenance
and preservation of the standards they have secured
for their members from employers within their ju-
risdictional area and makes any improvement
thereof more difficult to obtain.
Undoubtedly, Local 386 was motivated at least in
part by anger and frustration over its failure to
achieve recognition and a contract containing its
area standards from R. P. B.; this , however, does
not imply that it had the continuing objective of
securing recognition and a contract but rather sup-
ports an inference that its motive was retaliation for
its defeat and therefore an abandonment of its
former recognition and contract objectives.
3. Were Local 386's actions nevertheless unlawful
secondary activity
There still remains the General Counsel 's conten-
tion that , despite a conclusion that Local 386's ob-
jective in coercing Yolo into ceasing to do business
with R. P. B. was to enforce the area standards
provision of its contract with R. P. B., its action was
nevertheless unlawful secondary activity in that it
was intended to influence R. P. B.'s employment
policies and not to assure performance by Yolo em-
ployees of work covered by the Yolo-Local 386
contract and normally performed by them.
The line of cases cited by the General Counsels
indeed do turn on the principle that economic pres-
sure exerted by a union to assure performance by
employees represented by it of work within the nor-
mal scope of the bargaining unit is lawful primary
activity and not unlawful secondary activity within
the prohibition of Section 8(b)(4)(i ) and (ii)(B) of
the Act , despite the incidental effect of such pres-
sure upon secondary employers who lose work as a
result of such pressures upon the primary employer.
However, those cases are not apropos here. The
question here is whether it is unlawful secondary
activity for a union to enforce a contract provision
which permits the primary employer to contract out
bargaining unit work for performance by employees
of other employers but conditions such concession
by a proviso that such contracted out work shall not
be performed at wage rates and other economic
benefit levels below those contained in the contract
between the primary employer and the union.
The General Counsel did not question the legali-
ty of the provision itself, and with good reason. If a
union under the rationale of the cases cited in foot-
note 9 may use economic pressure to secure from a
primary employer a contract provision barring him
from contracting out any bargaining unit work,
thereby assuring performance of all such work by
bargaining unit employees , this nullifies an argu-
ment that the employer cannot compromise for
less, i . e., for a contract provision authorizing the
employer to contract out bargaining unit work pro-
vided such work is performed at wage rates and
other economic benefit standards equal to or in ex-
cess of those contained in the contract ( thereby
protecting the bargaining unit employees from loss
of their jobs by the contracting out of their work
for performance by employees of other employers
' National Wood,, on, Manufacturers Assoc ration v N L R B. 386 U S
612, Houston insulation Contractors Association v N L R B, 386 U S 664,
American Boiler Manufacturers Association , 167 NLRB 602, 606
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 1045
paying lower wage rates and other economic
benefits, thus avoiding a labor cost saving by the
primary employer and any incentive on his part to
eliminate their jobs and substitute another em-
ployer's employees therefor). The courts which
have considered this question have so ruled.''
Obviously the enforcement of such a provision
against an employer whose wage and benefit provi-
sions for his employees are lower than those con-
tained in the contract between the primary em-
ployer and the union representing his employees
results in a loss of work by such (secondary) em-
ployer. It also results, however, in the preservation
of the standards the union has secured for the em-
ployees of the primary employer with regard to the
work normally performed by the bargaining unit
employees.
Local 386 lawfully could have sought a contract
provision from Yolo requiring the performance of
all its freight transportation by Yolo employees
covered by the contract and subject to its terms;
thus, if Local 386 were successful , Yolo would have
to lease, buy, or borrow up to 80 trucks and hire up
to 80 casual drivers during its busy season, and then
lay them off at its end; instead, the more reasonable
compromise solution was reached of union agree-
ment to the contracting out of seasonal work, pro-
vided it was performed at not less than the contract
standards.
The contract provision was reasonable and law-
ful, and so is its enforcement. The fact that Local
386 probably also acted in malice , after it had lost
out in its campaign to secure representaion rights
and a contract from R. P. B. and had been forced
to abandon those objectives does not make such
enforcement unlawful under Section 8(b)(4)(i) and
(ii)(B) of the Act. Rather than attempting to in-
fluence the rates of pay and other benefits R. P. B.
was granting to its employees , Local 386 was at-
tempting to cut off as much work as it could from
R. P. B. in order to protect and preserve its area
standards, and the Trial Examiner so finds. Its ac-
tivity was lawful primary activity and any effects
upon R. P. B., a secondary employer, were in-
cidental thereto.
Based upon the foregoing, the Trial Examiner
finds and concludes that Local 386 did not violate
Section 8(b)(4)(i) and (ii)(B) of the Act as alleged
in the complaint and recommends that the com-
plaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Yolo and R. P. B. were employers engaged in
commerce and in an industry affecting commerce
and Local 386 was a labor organization within the
meaning of Section 2(2), (5), (6), and (7) of the
Act at all times pertinent in this case.
2. Local 386 has not violated Section 8(b)(4)(i)
and (ii )(B) of the Act.
RECOMMENDED ORDER
The Trial Examiner recommends that the com-
plaint be dismissed in its entirety.
` ° Truck Drirers Union No Local 413 v N L R B , 334 F 2d 539
(C A D C ), Building and Construction Trades Council v N L R B, 328
F 2d 540 (C A D C ), Cos, Jack T, of Orange Belt District Council of Pain-
ters No 48 [Calhoun Drvssall Co I v Frank W McCulloch. 315 F 2d 48
(CAD C ), District No 9, international Association of Maclunistc
AFL-CIO [Greater St Louis Automotive Tnn,,nerc & Upholsterers Assn J v
N L R B , 315 F 2d 33 (C A D C ), Retail Clerks Union Local 770 [ United
States Hardware and Paper Conipans J v N L R B , 296 F 2d 368
(C A D C ), also see Hig/issas Truck Drners and Helpers, Local 107 (S & L
McCormick, Inc ), 159 NLRB 84