Teamsters Local 610 (Kutis Funeral Home)

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 1204 (N.L.R.B. 1992)

1204
309 NLRB No. 178
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent filed no exceptions and does not take issue with
the judge’s finding that the contractual provision, as interpreted, lit-
erally constitutes an agreement to cease doing business with non-
signatory firms. In its answering brief, the Respondent’s argument
is limited to the contention that the provision is privileged by work-
preservation interests.
2 The General Counsel excepts to the judge’s finding that the Gen-
eral Counsel conceded, in its brief to her, that the Sec. 8(b)(4)(i) and
(ii)(A) complaint allegations are barred by Sec. 10(b) of the Act.
The General Counsel contends that, contrary to the judge’s finding,
he pointed out in his posthearing brief that, because both the arbitra-
tion award and the Respondent’s Sec. 301 suit to enforce it fell with-
in 6 months of the filed charges, Sec. 10(b) was not an issue. We
find merit to that contention. The complaint alleges, inter alia, that
the Respondent unlawfully ‘‘entered into’’ the trading provision and
reaffirmed the provision by obtaining an arbitration award. We agree
with the General Counsel that, by obtaining the award, the Respond-
ent reentered into the 8(e) agreement within the 10(b) period. We
also note that the Respondent sought to enforce the award by judi-
cial action within the 10(b) period. Carpenters District Council of
Los Angeles (Coast Construction), 242 NLRB 801, 804 (1979), enfd.
709 F.2d 532 (9th Cir. 1983).
Miscellaneous Drivers, Helpers, Healthcare and
Public Employees Union Local No. 610, affili-
ated with the International Brotherhood of
Teamsters, AFL–CIO and Kutis Funeral
Home, Inc. Cases 14–CC–2181 and 14–CE–77
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On March 2, 1992, Administrative Law Judge
Nancy M. Sherman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
I. INTRODUCTION
The Employer, a funeral establishment, is in the
business of providing funeral services in the St. Louis,
Missouri area. The Respondent has represented a bar-
gaining unit of the Employer’s limousine and hearse
drivers for over 40 years. The parties’ most recent col-
lective-bargaining agreement was effective from July
1, 1989, to June 30, 1992.
The complaint alleges that the Respondent violated
Section 8(b)(4)(i) and (ii)(A) and Section 8(e) of the
Act by entering into an agreement, by maintaining a
grievance, and by seeking to enforce through arbitra-
tion and judicial action a provision (art. XVI, sec. 18)
in the parties’ bargaining agreement that provides:
Any funeral establishment hiring full time chauf-
feurs may make first call body removals for all
other Employers who also hire full time chauf-
feurs, and may do the same for other non-hiring
firms. In all other respects, the previous practice
of renting and trading livery equipment between
all signatories to the contract shall prevail. [Em-
phasis added.]
The General Counsel contends that this provision, as
interpreted at arbitration, has an impermissible ‘‘cease
doing business’’ secondary objective favoring union
signatories at the expense of nonsignatory entities and
that the provision is not privileged by any work-preser-
vation interest.
The judge dismissed the complaint. Although she
found that the provision had a cease-doing-business
objective with respect to nonsignatory firms that fell
literally within the proscription of Section 8(e), the
judge concluded that the provision was lawful because
it sought to preserve work for drivers, known as
‘‘extra board’’ drivers, and this, in turn, also benefited
the Employer’s regular drivers. The General Counsel
contends that the judge’s findings with respect to work
preservation are erroneous.1 For the reasons described
below, we find merit to the General Counsel’s excep-
tions and find that the Respondent violated the Act, as
alleged.2
II. FACTS
The Employer employs three drivers. Because it has
more limousines and hearses than it has drivers, it is
not uncommon for the Employer to require additional
drivers and vehicles (livery) to service its customers on
busy days. On occasions when it requires an additional
driver to drive a vehicle that it owns, the Employer
uses a driver from a permanent board of extra drivers
known as the ‘‘extra board.’’ The extra board is ad-
ministered by a joint committee of the Respondent’s
representatives and representatives of funeral service
establishments signatory to bargaining agreements with
the Respondent, including the Employer. The extra
board is composed of approximately five or six driv-
ers. These drivers are available to employers whose
need for drivers and vehicles, like the Employer’s, may
fluctuate and exceed available drivers on hand.
The 1989–1992 bargaining agreement between the
Employer and the Respondent sets forth terms and
conditions of employment covering extra board drivers.
This agreement, as well as other bargaining agreements
with union signatories, requires signatory employers ei-
ther to call an extra board driver directly when seeking
additional drivers or to use a referral service operated
by the Respondent. The agreements give referral pref-
erence to extra board drivers. The Employer partici-
1205TEAMSTERS LOCAL 610 (KUTIS FUNERAL HOME)
pates, along with other signatories, in making monthly
fringe benefit contributions on behalf of extra board
drivers and in administering the board. In the event of
layoff, the Employer’s drivers have the contractual
right to go on the extra board.
On occasions when the Employer needs extra driv-
ers and vehicles, it initially attempts to borrow manned
equipment by trade from other signatories with the un-
derstanding that the favor will be returned by trade, if
possible, on occasions when the trading partner so re-
quests. When equipment is not available by trade,
however, the Employer must secure equipment and
drivers elsewhere. Prior to April 1990, the Employer
generally met its needs in such circumstances by rent-
ing drivers and equipment from Hoppe Livery Com-
pany (Hoppe), with whom the Respondent had a col-
lective-bargaining relationship. When employees rep-
resented by the Union were unavailable, Hoppe as-
sisted the Employer in obtaining drivers and equipment
from nonunion sources or the Employer did so di-
rectly. In April 1990, however, Hoppe went out of
business. Thereafter, if the Employer was unable to se-
cure drivers and equipment from its usual trading part-
ners, it simply used nonunion personnel as it had in
the past.
After Hoppe’s demise, the Respondent insisted that,
before using drivers not represented by it, the Em-
ployer must first attempt to trade with Hoffmeister
Mortuaries, Inc. (Hoffmeister), a union signatory, pur-
suant to the aforementioned trading provision of the
Employer’s bargaining agreement with the Respondent.
When the Employer declined to trade with Hoffmeister
because it had not done so in the past and because
Hoffmeister was its major business competitor, the Re-
spondent filed a grievance against the Employer seek-
ing an award that the Employer must obtain, as need-
ed, ‘‘equipment and drivers from other signatories to
the labor agreement.’’ It is undisputed that, by virtue
of this grievance, the Respondent claimed that the Em-
ployer could not use livery and drivers from nonunion
firms before seeking to trade with Hoffmeister.
On April 10, 1991, the arbitrator found that the trad-
ing provision in the bargaining agreement ‘‘prohibits
all signatory establishments from hiring non-union liv-
ery without first resorting to trading.’’ The arbitrator
ordered that the Employer ‘‘is required to attempt to
trade with Hoffmeister prior to resorting to hire of
non-union livery.’’ When the Employer refused to
comply with the award, the Respondent filed suit
under Section 301 of the Act seeking enforcement of
the award in the United States District Court for the
Eastern District of Missouri. That action has been
stayed pending disposition of the instant case.
III. DISCUSSION
At the outset, we agree with the judge that the trad-
ing provision, as interpreted by the arbitrator in his
award, constitutes an agreement to ‘‘cease doing busi-
ness’’ with nonsignatory, nonunion firms. Under the
arbitrator’s interpretation, the provision requires the
Employer to trade with and give preference to union
signatories, such as Hoffmeister, before obtaining liv-
ery and drivers elsewhere. Put another way, the provi-
sion requires the Employer to cease doing business
with nonunion livery firms in favor of union signatory
Hoffmeister. Thus, the provision falls literally within
the proscription of Section 8(e) making it an unfair
labor practice ‘‘to enter into any contract or agreement,
express or implied, whereby such employer ceases or
refrains or agrees . . . to cease doing business with
any other person.’’
Nevertheless, because Section 8(e) applies only to
agreements with secondary objectives, an agreement
with primary objectives, such as the preservation of
existing unit work, does not violate Section 8(e) even
if a literal application of the Section’s terms seems to
prohibit the agreement. As the Supreme Court stated in
National Woodwork Mfrs. Assn. v. NLRB, 386 U.S.
612, 645 (1967): ‘‘the touchstone is whether the agree-
ment or its maintenance is addressed to the labor rela-
tions of the contracting employer vis a vis his own em-
ployees’’ or is intended to benefit union members gen-
erally. The issue in this case, therefore, is whether the
award requiring the Employer to trade with
Hoffmeister before using nonunion livery is addressed
to the labor relations of the Employer or to union in-
terests generally.
Before we examine whether the provision, as inter-
preted, is addressed to the labor relations of the Em-
ployer, we first consider the scope of the arbitration
award. The award, as noted, requires the Employer to
trade with signatory Hoffmeister rather than doing
business with nonsignatory entities. The award on its
face does not pertain to the Employer’s use of the
extra board or, for that matter, to Hoffmeister’s use of
the extra board. Accordingly, when assessing whether
the provision, as interpreted by the award, raises a pri-
mary (work-preservation) interest, it is important to
bear in mind that the award’s scope pertains to the
Employer’s trading with Hoffmeister, not to the Em-
ployer’s use of the extra board. It follows, therefore,
that if the provision is privileged by work-preservation
interests, there must be a correlation between the Em-
ployer’s trading with Hoffmeister (in lieu of using non-
union signatories), and the Employer’s use of the extra
board.
In dismissing the complaint, the judge in effect
found that such a correlation existed and, thus, that the
Respondent acted to enforce the contractual trading
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The judge made no finding specific to Hoffmeister with regard
to the extent of Hoffmeister’s use of the extra board in conjunction
with the trading process.
provision for valid work-preservation reasons. The
judge reasoned as follows: that the provision preserved
work opportunities for drivers on the extra board be-
cause these drivers had contractual rights to drive vehi-
cles traded or rented between signatory employers; that
extra board drivers become employees of the Employer
covered by negotiated wage rates contained in the bar-
gaining agreement; and that the preservation of job op-
portunities for extra board drivers benefited the Em-
ployer’s regular employees because these employees
had the contractual right to be placed on the extra
board during periods of layoff. The judge concluded,
therefore, that the extra board drivers were part of the
‘‘relevant work unit’’ for work-preservation purposes,
citing Operating Engineers Local 12 (Griffith Co.),
212 NLRB 343 (1974), revd. and remanded 545 F.2d
1194 (9th Cir. 1976), cert. denied 434 U.S. 854 (1977),
and Electrical Workers IBEW Local 46 (Puget Sound
NECA), 303 NLRB 48 (1991).
Contrary to the judge, we find that any benefits that
inure to the extra board drivers by virtue of the trading
provision’s application to Hoffmeister do not establish
a work-preservation interest with respect to the Em-
ployer’s own employees. First and foremost, the provi-
sion, as interpreted by the arbitrator, has no direct
bearing on the Employer’s use of the extra board.
Thus, the Respondent did not seek an award pertaining
to the Employer’s decision to use, or failure to use, the
extra board. Rather, the award is directed to the Em-
ployer’s failure to trade vehicles and drivers with
Hoffmeister. Further, the role of the extra board is, at
best, peripheral to the contractual provision at issue in
the award. Thus, use of the extra board by Hoffmeister
in the trading process would only arise if Hoffmeister’s
own employees were unavailable and Hoffmeister
placed extra board employees on its payroll.3 As a re-
sult, the primary effect of the trading provision is to
benefit Hoffmeister’s regular employees and not the
Employer’s.
Accordingly, we find the provision benefits and
serves union interests generally. Indeed, that this was
the overriding objective of the Respondent’s conduct is
demonstrated by the Respondent’s brief to the arbitra-
tor, in which it contended that the Employer’s failure
to trade with Hoffmeister eventually could lead to the
following scenario:
If a signatory employer has available equipment
which sits idle while non-signatory equipment and
drivers are used, eventually the equipment which
sits idle will be eliminated. Ultimately full-time
drivers whose employers are unable to support a
full-time driver with its own business will have to
eliminate such positions unless by trading with
other signatories a sufficient level of combined
business exists to justify the continued employ-
ment of the driver and maintenance of the equip-
ment.
We are not persuaded by the judge’s comment that
this contention ‘‘is attributable to the fact that regular
drivers would be contractually entitled to keep their
jobs even when the extra board is unemployed.’’ Irre-
spective of that fact, the Respondent clearly was con-
cerned that the failure to trade with Hoffmeister would
lead to the eventual loss of jobs for full-time drivers
outside the unit of the Employer’s drivers.
Further, any benefit flowing to the extra board by
virtue of the trading provision’s application to
Hoffmeister is highly attenuated with respect to the
extra board’s relationship to the Employer. The Em-
ployer’s employees and Hoffmeister’s employees are
in separate bargaining units covered by separate bar-
gaining agreements. If Hoffmeister secures an em-
ployee from the extra board and puts that employee on
its payroll, for its own use or for trading purposes, that
employee is covered by the terms of Hoffmeister’s bar-
gaining agreement, just as extra board employees se-
cured by the Employer are paid by the Employer and
are covered by the Employer’s bargaining agreement.
Accordingly, the arbitration award, even if it is viewed
as pertaining to the extra board, concerns the extra
board vis-a-vis its use by Hoffmeister, not by the Em-
ployer. In these circumstances, the provision does not
satisfy the requirement of National Woodwork that it
be ‘‘addressed to the labor relations of the contracting
employer vis a vis his own employees.’’
We also find that the contractual right of the Em-
ployer’s employees to be placed on the extra board
during periods of layoff is insufficient to establish a
work-preservation interest that would save the clause
in question. Thus, there is no record evidence indicat-
ing that there are laid-off employees of the Employer
on the extra board and, indeed, it is undisputed, as the
judge found, that it is ‘‘virtually impossible’’ to layoff
employees under the guaranteed employment provi-
sions of the Employer’s bargaining agreement.
Finally, we disagree with the judge that the contrac-
tual trading provision, as interpreted by the arbitration
award, is privileged, as applied to the Employer’s trad-
ing with Hoffmeister, on the basis that the extra board
drivers are part of a ‘‘relevant work unit’’ within the
meaning of Griffith, supra. First, the factors enumer-
ated by the judge to show a close relationship or com-
munity of interest between the extra board drivers and
the Employer’s drivers concern instances, as the judge
found, when the Employer itself calls for an extra
board driver and puts that driver on its payroll. The
Respondent’s grievance (and the award) however, does
not, as we have noted, pertain to instances when the
Employer itself calls for an extra board driver. The
1207TEAMSTERS LOCAL 610 (KUTIS FUNERAL HOME)
4 Indeed, in Griffith, the Board specifically did not pass on the va-
lidity of any similar restrictive agreements that may have existed in
industries outside the construction industry. 212 NLRB at 344.
award concerns the failure to trade with Hoffmeister
and the use of nonunion livery. Accordingly, much of
the judge’s rationale for finding a work-preservation
objective based on the ‘‘relevant work unit’’ is inap-
plicable to the conduct actually alleged as a violation
in the complaint.
We also find that Griffith and Puget Sound, supra,
relied on by the judge to find a relevant work unit, are
inapposite. Both Griffith and Puget Sound are cases in-
volving the construction industry, an industry which
has been given special consideration under the Act be-
cause of its unique nature. Thus, in Griffith, the Board
found that a clause that required employer-members of
a multiemployer benefit fund to cease doing business
with other members who were delinquent in their con-
tributions to joint trust funds did not have an unlawful
secondary objective because employees of all the em-
ployers had a common interest in the stability of the
trust funds, given that the employees went from job to
job and employer to employer with no certainty that
they would remain employed in any particular unit for
any period of time.
In Puget Sound, the Board found that a union did
not pursue a contractual grievance in violation of Sec-
tion 8(e) when it sought to forbid an employer associa-
tion from operating job referral and apprenticeship sys-
tems for nonunion employers parallel to the union’s
contractually established systems for union employers.
The Board concluded that the employer association’s
conduct undermined the established systems in vir-
tually the same manner as if it were to hire employees
outside the hiring hall notwithstanding the hall’s avail-
ability of qualified individuals. And in Puget Sound, as
it had in Griffith, the Board emphasized the unique cir-
cumstances of the construction industry.4 In Puget
Sound, supra at 51, the Board noted:
We are particularly reluctant to find that the
Union’s efforts to protect its hiring hall arrange-
ments violate Section 8(e) in view of the unique
statutory treatment afforded such arrangements in
the Act. By adding Section 8(f) to the Act, Con-
gress specifically approved of the use of hiring
halls in the building and construction industry—
notwithstanding the fact that an exclusive hiring
hall agreement plainly restricts a signatory em-
ployer’s ability to ‘‘do business’’ with alternative
referral services.
In the instant case, the record is devoid of any evi-
dence indicating that the circumstances here—the fail-
ure to trade with Hoffmeister—are analogous to the
acts of the construction industry employers in the
above-cited cases. Further, there is nothing in the Act
with regard to ‘‘doing business’’ in the funeral indus-
try that is equivalent to the unique statutory treatment
afforded the construction industry. Accordingly, we
find that Griffith and Puget Sound do not lend support
to a finding that the Respondent’s conduct was pri-
mary in character. We find, therefore, that the Re-
spondent has violated Section 8(b)(4)(A) and Section
8(e) of the Act, as alleged in the complaint.
CONCLUSIONS OF LAW
1. By reentering into a collective-bargaining agree-
ment which effectively provides in article XVI, section
18, that the Employer must cease doing business with
nonsignatory employers, or cease doing business with
any other employer in violation of Section 8(e) of the
Act; by maintaining a grievance, obtaining an arbitra-
tion award, and filing for court enforcement of the
award in order to force or require the Employer to
enter into an agreement prohibited by Section 8(e), the
Respondent has engaged in unfair labor practices in
violation of Section 8(b)(4)(i) and (ii)(A) and Section
8(e) of the Act.
2. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Miscellaneous Drivers, Helpers,
Healthcare and Public Employees Union Local No.
610, affiliated with the International Brotherhood of
Teamsters, AFL–CIO, St. Louis, Missouri, its officers,
agents, and representatives, shall
1. Cease and desist from reentering into, enforcing,
or giving effect to the trading provisions of article
XVI, section 18, of its collective-bargaining agreement
with Kutis Funeral Home, Inc., which forces or re-
quires Kutis Funeral Home, Inc. to cease or refrain, or
to agree to cease or refrain, from handling, using, sell-
ing, transporting, or otherwise dealing in the products
of any other employers, or from doing business with
any other employer or person, in violation of Section
8(e) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Withdraw all grievances against Kutis Funeral
Home concerning the trading provisions of article XVI,
section 18, of its collective-bargaining agreement with
Kutis Funeral Home.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(b) Withdraw its cause of action against Kutis Fu-
neral Home filed in the United States District Court for
the Eastern District of Missouri, Eastern Division in
Civil Action No. 91-1134-C-4 pursuant to Section 301
of the Act seeking to enforce an arbitration award sus-
taining the Respondent’s grievance and adopting the
Respondent’s interpretation of the trading provisions of
its collective-bargaining agreement with Kutis Funeral
Home.
(c) Post at its offices and meeting halls in St. Louis,
Missouri, copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 14, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Furnish to the Regional Director for Region 14
signed copies of the notice for posting by Kutis Fu-
neral Home, Inc. if it is willing, in the places where
notices to employees are customarily posted. Copies of
the notice, to be furnished by the Regional Director for
Region 14, after being signed by the Respondent’s rep-
resentative, shall be forthwith returned to the Regional
Director for such posting.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT enter into, enforce, or give effect to
the trading provisions of article XVl, section 18, of our
collective-bargaining agreement with Kutis Funeral
Home, Inc., which forces or requires Kutis Funeral
Home, Inc. to cease or refrain, or to agree to cease or
refrain, from handling, using, selling, transporting, or
otherwise dealing in the products of any other employ-
ers, or from doing business with any other employer
or person in violation of Section 8(e) of the Act.
WE WILL withdraw all grievances against Kutis Fu-
neral Home concerning the trading provisions of article
XVI, section 18 of our collective-bargaining agreement
with Kutis Funeral Home.
WE WILL withdraw our cause of action against Kutis
Funeral Home filed in the United States District Court
for the Eastern District of Missouri, Eastern Division
in Civil Action No. 91-1134-C-4 pursuant to Section
301 of the Act seeking to enforce an arbitration award
sustaining our grievance and adopting our interpreta-
tion of the trading provisions of our collective-bargain-
ing agreement with Kutis Funeral Home.
MISCELLANEOUS DRIVERS, HELPERS,
HEALTHCARE AND PUBLIC EMPLOYEES
UNION LOCAL NO. 610, AFFILIATED
WITH THE INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, AFL–CIO
Michael T. Jamison, Esq., for the General Counsel.
George O. Suggs, Esq., of St. Louis, Missouri, for the Re-
spondent.
Alan I. Berger, Esq., of St. Louis, Missouri, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. These
consolidated cases were heard before me on November 14,
1991, pursuant to charges filed on August 20, 1991, by Kutis
Funeral Home, Inc., (KFH) against Respondent Miscellane-
ous Drivers, Helpers, Healthcare and Public Employees
Union Local No. 610, affiliated with the International Broth-
erhood of Teamsters, AFL–CIO (Respondent or the Union)
and a consolidated complaint issued on September 18, 1991,
and amended on October 25, 1991. The complaint as amend-
ed alleges that Respondent violated Section 8(b)(4)(i) and
(ii)(A) of the National Labor Relations Act (the Act) by ob-
taining an April 1991 arbitrator’s award sustaining a griev-
ance filed in May 1990 by the Union against KFH, which
award adopted the Union’s interpretation of a January 1990
bargaining agreement between the Union and KFH so as to
require KFH to cease or refrain from doing business with
other employers not signatory to the January 1990 bargaining
agreement (see infra fn. 12). The complaint before me further
alleges that the Union violated Section 8(e) of the Act by fil-
ing with a United States District Court a May 1991 com-
plaint against KFH seeking to enforce the arbitrator’s award.
On the basis of the entire record, including the demeanor
of the witnesses who testified before me, and after due con-
sideration of the briefs filed by Respondent, KFH, and coun-
sel for the General Counsel (the General Counsel), I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Union is a labor organization within the meaning of
Section 2(5) of the Act. KFH is a corporation with its prin-
1209TEAMSTERS LOCAL 610 (KUTIS FUNERAL HOME)
cipal office and place of business in St. Louis, Missouri,
where it provides funeral services. During the 12-month pe-
riod ending on August 31, 1991, KFH derived gross annual
revenues in excess of $500,000 and purchased and received
at its St. Louis facilities products, goods, and materials val-
ued in excess of $50,000 directly from points outside Mis-
souri. I find that, as Respondent Union concedes, KFH is en-
gaged in commerce within the meaning of the Act, and that
assertion of jurisdiction in this case will effectuate the poli-
cies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has represented KFH’s limousine and hearse
drivers (also referred to in the record as chauffeurs) for more
than 40 years. Beginning on an undisclosed date prior to
1972, and continuing until an undisclosed date prior to No-
vember 1976, bargaining agreements with respect to KFH
drivers were negotiated with an employer association. The
resulting contracts covered limousine and hearse drivers em-
ployed by KFH and by other firms in the area, probably in
a multiemployer unit. This association became defunct on an
undisclosed date prior to November 1976. Thereafter, the
‘‘non-hiring’’ firms (that is, firms who obtained equipment
and drivers from ‘‘hiring’’ firms but themselves had no
equipment or drivers) and the small ‘‘hiring’’ firms nego-
tiated one or two contracts through a law firm other than the
law firm which, after the association became defunct, rep-
resented the other employers (including KFH) which had
been in the association. After the ‘‘non-hiring’’ firms stopped
negotiating with the Union, the remaining firms (including
KFH) whose employees were represented by the Union ne-
gotiated contracts with the Union as a group. Before each set
of post-1976 negotiations began, the employers told the
Union that they were negotiating together, but would sign
separately.
At all times relevant here, there has been in existence an
‘‘extra board’’ which consists of drivers available for use by
funeral homes under contract with the Union, and (perhaps)
by other funeral homes as well; the functioning of this extra
board is described infra. At all times relevant here, funeral
homes under contract with the Union have been contractually
required (for the purpose of providing drivers with health,
welfare, prescription-drug, and pension benefits) to make cer-
tain payments to a board of trustees, which in turn forwards
these payments, in the form of a single monthly check, to
the Central States, Southeast and Southwest Areas Pension
Fund/Health and Welfare Fund (Central States). A contrac-
tually specified amount has been so paid on behalf of each
of the drivers, including each of those on the extra board.
Until about 1985, the total amount payable on behalf of the
extra-board drivers was paid equally by all the funeral homes
under contract with the Union; thereafter, the employers de-
cided among themselves how much each would have to con-
tribute to the amount due to the trustees on behalf of the
extra board.
In 1972, the Union had bargaining relationships with al-
most 30 funeral homes in the St. Louis area, and represented
about 51 drivers, including the extra board. During a period
which began no later than 1980, the Union had a bargaining
relationship with Kriegshauser Mortuary & Southern Funeral
Home, which negotiated as part of the group. In 1985 or
1986, the Union called a strike among Kriegshauser’s driv-
ers. Upon Kriegshauser’s filing of a representation petition
on March 29, 1988, Kriegshauser and the Union entered into
an election stipulation stating that the appropriate unit con-
sisted of the drivers of Kriegshauser alone. The Union lost
this election by a vote of three to zero, with three challenged
ballots. Nobody voted who was not employed by
Kriegshauser.
In 1989, the contracts covering the funeral homes (includ-
ing KFH) whose drivers were still represented by the Union
were due to expire by their terms. After the beginning of
bargaining negotiations with respect to succeeding agree-
ments, one of these funeral homes, Bopp, told the Union that
Bopp would not negotiate with the Union because Bopp had
only one driver. In addition, Fitzinger Funeral Home, which
also employed only one driver, told the Union, without giv-
ing a reason, that it would no longer negotiate an agreement
with the Union. The Union thereupon struck Bopp and
Fitzinger, but none of the other funeral homes. The Union
did not contract with either Bopp or Fitzinger, and filed no
charges against them with the NLRB.
B. The 1989–1990 Bargaining Negotiations
By the end of contract negotiations which began in 1989,
the Union was recognized, as the representative of funeral
drivers, by nine firms, eight of which (including KFH) oper-
ated funeral homes; the ninth firm (Hoppe Livery Company,
herein called Hoppe) did not operate a funeral home but did
provide ‘‘livery service’’ (drivers and equipment) to funeral
homes. Negotiations with respect to the drivers of these nine
firms began shortly before the June 1989 expiration of the
contracts to which these firms were parties. One of the eight
funeral homes, Hoffmeister Mortuaries, Inc. (Hoffmeister),
which had previously negotiated with the other employers as
a group, in 1989–1990 negotiated separately through
Hoffmeister’s own attorney. The remaining employers, in-
cluding KFH, were represented by Attorney Alan I. Berger,
who told the Union, before negotiations began, that the em-
ployers represented by him were meeting as a matter of con-
venience and to economize on attorneys’ fees, and would
talk to the Union as a group first, but that they were going
to finalize and negotiate the final details of the contract inde-
pendently.
Hoffmeister and the Union orally reached an agreement
with the Union during the first week of November 1989, and
executed it on February 28, 1990. As to the other 8 employ-
ers, including KFH, oral agreements were reached within a
few days of each other, about the last week in November
1989; the final proposal to the Union from the seven employ-
ers other than KFH consisted of a page stating that because
their wages differed from KFH’s wages, their final proposal
differed from KFH’s. The KFH contract was executed on
January 26, 1990; inferentially, the other contracts negotiated
through Berger were executed at about the same time as the
KFH contract.
All the contracts have the effective date of July 1, 1989.
The Union’s contract with Lupton Chapel, Inc., had an expi-
ration date of November 1, 1991, because Lupton’s business
had declined and its only driver did not want a ‘‘fight’’ prior
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Only the KFH and Hoffmeister contracts are in evidence. My
findings in this sentence are otherwise based on inferences from
Union President Barney Vaughn’s uncontradicted testimony that the
employers other than KFH stated that their final proposal differed
from KFH’s because their wages differed. As discussed infra, Hoppe
went out of business in April 1990.
2 The participation agreement does not specify the year it was exe-
cuted. My inference that it was 1990 is based on Vaughn’s testi-
mony that he signed this agreement for the contracts entered into in
1990.
3 The participation agreement calls for increases effective July 1,
1992, and July 1, 1993, in required payments into the pension fund.
However, the last increase specified by the KFH bargaining agree-
ment is effective on July 1, 1991.
to his impending retirement. The record suggests that all the
other contracts are effective until June 30, 1992.1
All the contracts, including the Hoffmeister contract, state
that the parties to the agreement are the Union and the par-
ticular employer which has signed the agreement. All the
contracts except the Hoffmeister contract recognize the
Union ‘‘as the exclusive bargaining agency for all of the
driver employees of the Signatories to this contract.’’ The
Hoffmeister contract recognizes the Union ‘‘as the exclusive
bargaining agency for all of its driver employees within the
scope of this Agreement.’’ Under the heading ‘‘Scope of
Agreement,’’ the Hoffmeister contract states that the agree-
ment ‘‘covers funeral car drivers of Hoffmeister.’’ The other
contracts, including KFH’s contract, state:
Scope of Agreement
Covering all Funeral Directors, brokers for funeral
service, service establishments, trade embalmers, livery
companies and livery organizations engaged in any
phase of funeral industry, who owns, operates, rents or
leases (as Lessee or Lessor) motor livery equipment
consisting of hearses, limousines, flower cars and . . .
first call equipment and all equipment that is driven for
hire or for remuneration to the Funeral Home or Direc-
tor.
The wage rates in all the contracts (including
Hoffmeister’s) are the same, except for the KFH contract.
Each of the contracts contains different work rules. With the
foregoing exceptions, all the contracts except the Hoffmeister
contract are identical so far as the record shows; and laying
to one side the differences previously referred to and a few
others discussed infra, the Hoffmeister contract does not dif-
fer from the others in any respect material here.
Central States requires a participation agreement from
every employer that has employees who are participating in
the Central States fund. At all material times, as to funeral
drivers represented by the Union, only one participation
agreement has been sent to Central States as to health, wel-
fare, and pensions. This participation agreement is signed by
a union trustee of the pension fund (Union President Barney
Vaughn) and by an employer trustee. On June 4, 1990,
Vaughn and employer trustee Del Sherman (no kin to me)
signed a pension participation agreement as to the eight em-
ployers still in business (Hoppe having gone out of business
a few weeks earlier).2 This consists of a printed form with
certain blanks. The blank calling for the employer’s name
contains the entry ‘‘St. Louis Funeral Car Drivers;’’ the
blank calling for the employer’s address contains the Union’s
office address; and only one number is specified in the blank
calling for the Federal employer number. Only Sherman’s
signature appears after the printed entry, ‘‘If Employer is
signed to Group Contract, give name of such Contract.’’3
C. Substantive Contractual Provisions
Each funeral home’s need for drivers and vehicles varies
sharply and unpredictably. At all times relevant here, the
Union, and the firms whose funeral drivers are represented
by it, have attempted to address this problem, among others,
by the establishment of an ‘‘extra board’’ of drivers whom
any of such firms may use. This extra board has at all mate-
rial times been administered by a committee whose member-
ship is equally divided between the Union and representa-
tives of the signatory firms, and whose administration ex-
penses are included as part of the health and welfare pay-
ments made by all the signatory firms (including KFH and
Hoffmeister) on behalf of the regular drivers. Thomas Kutis,
who is KFH’s president and chief executive officer, testified
that when KFH uses extra-board employees, it treats them as
employees for the purposes of its payroll, and withholds Fed-
eral employment taxes and income taxes from their wages.
I infer that the same practice is followed by the other firms
which use extra-board drivers pursuant to a contract with the
Union.
All of the contracts provide, in part:
Guaranteed Employment
The signatories agree that all regular full time posi-
tions in existence on July 1, 1975 shall be guaranteed
positions and shall not be reduced by deaths, retire-
ments, resignations, or discharge except that the Em-
ployer shall have the right to reduce his work force an-
nually on the anniversary date of this contract through
the use of a Formula for Reduction of Work Force
. . . .
Any chauffeur may be transferred to . . . any other
Signatory Employer who would then assume the guar-
antee for the employee, and the original Employer shall
be released from guaranteed employment.
A. Any firm which loses a chauffeur or guaranteed
position and in the future requires a chauffeur shall as-
sume the guaranteed position and the previous driver
shall be offered the opportunity to return.
B. Drivers from within the industry prior to 7/1/75
shall fill guaranteed positions prior to other drivers.
. . . .
This guarantee of positions applies only to full time
regular positions as of July 1, 1975, and it does not
apply to any additional or new full time regular chauf-
feurs who are employed after the effective date of this
Agreement.
Of KFH’s three regular drivers, one has been its employee
since before 1975.
All the contracts except the Hoffmeister contract further
provide:
1211TEAMSTERS LOCAL 610 (KUTIS FUNERAL HOME)
4 Kutis credibly testified in November 1991 that the hiring com-
mittee then consisted of four union representatives and four rep-
resentatives of employers which had signed a contract in 1990. He
described the four employer members as ‘‘forced volunteers.’’
5 However, KFH President Kutis, who as of November 1991 had
been a member of the hiring committee for a period undisclosed by
the record, credibly testified that he could not recall the hiring com-
mittee’s ever taking action against any extra-board employee.
6 Referral drivers receive 75 percent of the trip or block rates paid
extra-board drivers.
The Formula for Reduction of Work Force states that
every Signatory Company shall, upon showing that fifty
percent (50%) or more non-productive time occurred in
the case of given individual man or men during the
year preceding each annual anniversary date of this
Agreement, be entitled to reduce the working force as
to this individual man or men . . . .
The Hoffmeister contract contains the same language, except
that the term ‘‘Employer’’ is substituted for the term ‘‘Signa-
tory Company.’’
Union President agent Barney Vaughn testified before me
that ‘‘in the case of some high-volume firms’’ it may be vir-
tually impossible to lay off employees because there is so
much work for the drivers; and according to the arbitrator’s
decision (offered and received without limitation or objec-
tion), both Vaughn and Kutis testified that the collective-bar-
gaining agreement made it virtually impossible to lay off em-
ployees.
During the initial meetings which led to the execution of
the 1989–1992 contracts for all the firms except Hoffmeister,
all the employers had questions regarding the number of sig-
natories, an issue which was of importance because of dona-
tions made to the health and welfare funds for the extra-
board employees. On behalf of all the employers which were
negotiating through Attorney Berger, KFH President Kutis
stated that they did not want to execute a contract before
Hoffmeister did, because they anticipated that Hoffmeister
‘‘was going to put [the union employees] on the streets,’’ the
remaining employers did not want to wind up having to pay
for Hoffmeister’s drivers plus all the extra board, and the re-
maining employers thought that the parties needed to find
out what was going to happen. The major issues between the
parties were wages and the size of the extra board.
Under the contracts as finally agreed upon, an employer
who desires new or additional help is contractually required
either to call in an extra-board driver directly, or to use the
Union’s referral service. Further, the contracts give pref-
erence to extra-board drivers in referral. ‘‘Any regular chauf-
feur who registers [with the dispatch office] on his seventh
day shall be dispatched as an Extra Board chauffeur on a trip
basis after all regular Extra Board chauffeurs have been dis-
patched but not to his regular employer.’’ Any regular full-
time chauffeur who leaves his job for any reason is automati-
cally placed on the extra board, according to his ‘‘industry
seniority.’’ Also, ‘‘If a layoff is necessary, industry seniority
of all men on the Extra Board shall apply. Any Extra Board
chauffeurs laid off shall be placed on the Special Board in
order of seniority and be dispatched after the Extra Board is
exhausted and maintain recall rights on the regular Extra
Board. All decreases and increases shall be on the basis of
seniority.’’ These provisions to one side, all the contracts af-
ford seniority for purposes of layoff and recall to drivers
from ‘‘within the industry’’ before July 1975 over drivers
thereafter ‘‘added to the industry’’; and otherwise base se-
niority for such purposes on length of continuous service
with the contracting employer. The Hoffmeister contract pro-
vides that in filling a vacancy for a full-time regular chauf-
feur or in adding full-time regular chauffeurs, the employer
is to prefer chauffeurs on the extra board or ‘‘regular drivers
working as Extra Board members.’’ The other contracts (in-
cluding KFH’s contract) call for preference to chauffeurs on
the extra board or ‘‘full time regular chauffeurs employed by
other Signatory Employers to this Agreement.’’
All the contracts call for a joint hiring committee ‘‘com-
posed of an equal number of Employer and Union represent-
atives . . . . The Employer representatives shall be selected
on a pro rata basis, in proportion to the number of Signato-
ries each representative represents as to the total number of
Signatories.’’4 The joint hiring committee handles the
prearbitration steps as to grievances filed by drivers on the
extra board. Further, all the contracts empower the joint hir-
ing committee to determine the qualifications, ability, and
physical fitness of all the drivers on the extra board; to re-
move from the extra board any driver who fails to meet these
requirements; to establish regulations and work rules with re-
spect to the duties and performance of work of the extra-
board drivers; to investigate and determine complaints by
‘‘any Employers’’ (the Hoffmeister contract) or ‘‘any Signa-
tory Employer’’ (the other contracts) with respect to any
extra-board driver’s work and adherence to rules and regula-
tions; and to determine and administer any discipline, includ-
ing discharge, determined appropriate; committee deadlocks
as to discipline or discharge are to be referred to arbitration.5
All the contracts contain a schedule relating the signatory
employer’s number of ‘‘day shift chauffeurs’’ with ‘‘steady
employment’’ to the number of vehicles which may be oper-
ated by the employer; the number of vehicles is roughly dou-
ble the number of regular drivers. The permissible ratio of
vehicles to regular drivers is increased if the employer adds
a new position. The contract with Hoffmeister ‘‘by special
agreement’’ permits Hoffmeister to operate up to 12 pieces
of equipment (rather than the 5–6 pieces otherwise permitted
to employers with 3 regular drivers) and, if Hoffmeister hires
a fourth regular driver, permits it to operate up to 14 pieces
of equipment (rather than the 10 pieces otherwise permitted
to employers which increased the number of their regular
drivers from 3 to 4).
In addition, all the contracts except the Hoffmeister con-
tract provide:
The parties have agreed to eliminate the Extra Board
by attrition. A maximum of six (6) members of the
Extra Board shall be eligible for Health and Welfare
benefits. Only drivers in the industry prior to 6/30/89
[the expiration date of the preceding bargaining agree-
ments] shall be entitled to return to the Extra Board.
Said drivers may use industry seniority to bump into
the six (6) spots available for benefits. Drivers returning
to the Board after 6/30/89 who decline the offer of a
regular position shall earn referral rates.6 Said open po-
sition shall be offered to said drivers in inverse order
of seniority. Refusal to fill said position shall be reason
for removal from the industry. Drivers on the [Extra]
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Because all the contracts except the Lupton contract (which ex-
pired in November 1991) expire in July 1992, I am inclined to think
that the Hoffmeister 1993 date is a typographical error for 1991.
However, any such error would be immaterial to the issues here. Cf.
supra, fn. 3. All the contracts contain provisions for automatic re-
newal absent notice of a desire to terminate or modify.
8 The April 1991 arbitrator’s award, offered and received without
limitation or objection, states that KFH used this last option on only
one occasion, because its nonunion staff is insufficiently experienced
in this work.
9 While counsel were making their opening statements, and before
being sworn as a witness, Kutis stated from counsel table that KFH
never used another firm’s driver without that firm’s equipment, and
that the driver would remain on the payroll of the firm for which
he worked.
Board prior to 6/30/89 shall be red circled and not re-
quired to take regular positions. The Employer shall
make the required contributions.
The Hoffmeister contract contains the same language, except
that the following sentence is inserted between the second
and third quoted sentences: ‘‘The Special Board shall consist
of all Extra Board members over the maximum of six (6) eli-
gible for Health and Welfare benefits.’’
All the contracts except the Hoffmeister contract contain
the following language:
Effective July 1, 1989, the total monthly contribution
by each hiring firm on behalf of each full time chauf-
feur for the Health and Welfare Fund, Retirement Fund
and Prescripticare Fund shall be seven hundred and
sixty dollars ($760.00) per month plus a portion of the
cost of Health and Welfare and Pension for the Extra
Board, based on cases handled by each firm. Effective
July 1, 1990, the contribution shall be seven hundred
ninety-eight dollars and twenty-four cents (($798.24),
and effective July 1, 1991, the contribution shall be
eight hundred twenty-eight dollars ($828.00) per month.
The Employer’s portion of the Extra Board cost shall
be renegotiated if the number of contributing Employ-
ers shall decline to seven (7) or fewer.
. . . .
. . . Any firm adding a new driving position and hir-
ing from the Extra Board shall be relieved of the Extra
Board payment [to Central States] for the life of this
Agreement.
The Hoffmeister contract is identical, except that (1) to the
first sentence are added the words ‘‘signatory to the 1985–
1989 Agreement, as calculated pursuant to the past-practice
of the Union and the Employers,’’ (2) the last date is July
1, 1993;7 and (3) in the last quoted sentence, the words ‘‘If
the Employer adds’’ appear instead of the words ‘‘Any firm
adding.’’
When asked how the parties resolved the extra-board issue
which was a major issue in negotiations, Vaughn testified
without objection, ‘‘There was a limit set of the six people
who were presently on the board, that [the employers] would
not be required to pay benefits on more than six and though
attrition the board would disappear unless Mr. Kutis’ em-
ployees got laid off or something, they went on the board.’’
All the contracts also provide that ‘‘In an attempt to provide
an incentive for reduction of the Extra Board, the participat-
ing Employers’’ will pay a $500 bonus to any driver who
retires under the pension plan before his 61st birthday. When
such a retirement takes place, all the signatory firms contrib-
ute to the retiree’s bonus.
All the contracts differentiate between regular and extra-
board drivers as to certain matters, including pay and vaca-
tions, and least impliedly treat them alike as to other matters,
such as the nature of their duties.
In addition, all the contracts contain the following provi-
sion, which is the subject of the instant complaint and is
herein referred to as article XVI Section 18 or as the
trading/renting clause:
Any funeral establishment hiring full time chauffeurs
may make first call body removals for all other Em-
ployers who also hire full time chauffeurs, and may do
the same for other non-hiring firms. In all other re-
spects, the previous practice of renting and trading liv-
ery equipment between all signatories to the contract
shall prevail.
Each of the contracts, including those agreed to by KFH
and Hoffmeister, was ratified by a combined vote of the
drivers on the regular payroll of any of the nine employers,
plus the drivers on the extra board. During negotiations,
Hoffmeister’s attorney asked Vaughn who he thought was
entitled to vote on the Hoffmeister agreement. Vaughn re-
plied that he thought all the drivers for all the funeral homes,
and all the extra-board drivers, were entitled to vote, because
of the required contributions by all the employers to retire-
ment bonuses for any drivers (whether or not employed by
Hoffmeister, and including extra-board employees) who re-
tired before age 61, and to payments made to the trust funds
on behalf of extra-board drivers. Hoffmeister’s attorney re-
plied that legally this was probably true.
D. The Union’s Grievance Against KFH
KFH has more limousines and hearses than it has regular
drivers. When all of KFH’s drivers are busy and it needs a
driver to drive a vehicle owned by it, it uses the extra board
first, and, after the extra board is used up, either goes to the
referral board (see supra, sec II,C) or uses nonunion persons
in KFH’s regular employ.8 When KFH needs extra equip-
ment (almost invariably, a limousine rather than a hearse)
with a driver, KFH initially attempts to obtain the equipment
from one of several signatory funeral homes with which
KFH has a longstanding practice of ‘‘trading’’—that is, each
will lend KFH such manned equipment, perhaps without
seeking money payment but with the at least tacit under-
standing that KFH will similarly accommodate similar future
requests from the other funeral home. However, these firms
are all much smaller than KFH, and are frequently unable to
meet KFH’s needs. In view of Kutis’ testimony that almost
all funeral homes under contract with the Union have more
equipment than drivers, and Vaughn’s testimony that there
had never been a problem about a funeral home’s failing to
attempt to initially obtain unmanned equipment from a firm
under contract with the Union, I infer that the lending firm
will frequently man a piece of equipment through the extra
board before lending it.9
1213TEAMSTERS LOCAL 610 (KUTIS FUNERAL HOME)
10 The quotations are from Vaughn’s testimony. It is unclear from
the record whether Stygar’s grieved conduct involved a failure to at-
tempt to use Hoffmeister equipment.
Before April 1990, if KFH was unable to borrow a needed
driver and limousine, KFH usually rented drivers and equip-
ment from Hoppe, which operated a livery firm but not a fu-
neral home; Hoppe was under contract with the Union and
used the extra board but, when union livery was exhausted,
would with the Union’s permission act as a broker in provid-
ing drivers and equipment from nonunion sources. If KFH
was unable to obtain drivers and equipment from these
sources, KFH, without attempting to obtain drivers and
equipment from Hoffmeister, would use drivers and equip-
ment from nonunion firms. After Hoppe went out of business
in April 1990, if KFH was unable to borrow drivers and
equipment from its traditional trading partners, KFH used the
same nonunion firms it had used in the past, and also used
Bopp, a signatory firm until about June 1989 but not there-
after. At no time has KFH ever traded with or used livery
from Hoffmeister. Hoffmeister is KFH’s chief competitor;
the two firms are the largest funeral homes in the area.
About April 1990, Vaughn received reports that two firms
which were parties to the foregoing contracts with the
Union—KFH and John Stygar & Son, Inc. (Stygar)—were
using limousines ‘‘from outside the industry.’’ After some
investigation, which disclosed that KFH was not using the
Hoffmeister equipment, Vaughn telephoned both KFH and
Stygar. Vaughn credibly testified that both these firms were
told
to comply with the procedure that has been in the in-
dustry for years. Once they comply with that, they can
get their equipment anywhere they want. The thing is,
we have a guaranteed employment clause in that con-
tract, and if Mr. [Stygar’s] or Mr. [Kutis’] drivers sit
around all afternoon and don’t do anything, then they
can request that they lay them off. So by using each
other’s equipment it keeps everybody busy and we
don’t get any requests for layoffs.
Although the Union represents employees in the area other
than funeral drivers, the Union does not represent any funeral
drivers other than those covered by the nine contracts exe-
cuted in 1990. Vaughn never asked Kutis to see if he could
not get some of the nonunion firms he was using, to sign a
union contract.
Before the filing of the grievance against KFH which gave
rise to this case, and inferentially after Vaughn had tele-
phoned KFH and Stygar about the matter, Vaughn and Kutis
attended a meeting of the hiring committee, of which both
are members. Vaughn said that he was thinking of filing a
complaint against KFH because he believed it was violating
the agreement in that KFH was not using Hoffmeister’s liv-
ery. Kutis told Vaughn that KFH had never used
Hoffmeister’s equipment or its drivers. Kutis went on to say
that for many years, Hoffmeister had not let its equipment
or its drivers out, and had obtained excess livery from Hoppe
and (he assumed) from other places, just as KFH did. Kutis
said that Hoffmeister had never contacted KFH to get any
price list or make any changes in the two firms’ relationship;
but that even if Hoffmeister had done so, Kutis did not want
to use Hoffmeister, that it was KFH’s main competitor.
Vaughn said that KFH was required by the contract to use
the Hoffmeister firm.
Inferentially about May 4, 1990, the Union filed a griev-
ance against Stygar alleging that it had violated the
trading/renting clause (art. XVI, sec. 18) of the labor agree-
ment (see supra, sec. II,C). Stygar thereupon agreed to first
attempt to use the equipment ‘‘in the industry’’—that is, the
equipment of ‘‘People who are signatories to the contract’’;10
Vaughn credibly testified that thereafter Stygar complied
with this undertaking and, on occasion, ‘‘has used non-union
livery and all we expect them to do is follow the proce-
dures.’’
On May 4, 1990, the Union filed a similar grievance
against KFH. Thereafter, during a telephone call from
Vaughn to Kutis, Vaughn said that he knew KFH was trad-
ing with the other signatories, that Hoffmeister was the only
one KFH was not using, and that the purpose of the griev-
ance was to change KFH’s practice with respect to
Hoffmeister. Kutis replied that KFH had never used the
Hoffmeister firm, that Hoffmeister had never traded livery
with anyone else, that Hoffmeister had made no attempt to
contact Kutis to trade livery, and that KFH had no intention
of using Hoffmeister’s equipment or drivers. My findings as
to the content of the hiring-committee and post-grievance
conversations between Kutis and Vaughn about KFH’s al-
leged violations of the trading/renting clause are based on
Kutis’ testimony. To the extent inconsistent with such testi-
mony by Kutis, I discredit for demeanor reasons Vaughn’s
testimony that until he learned otherwise at the arbitration
hearing, he believed that KFH was failing to try to trade with
other contract signatories generally, and did not realize that
KFH was only failing to contact Hoffmeister. However,
Kutis testified that he understood that the Union was telling
him, and was contending at the arbitration, that as long as
KFH first attempted to get its livery from the seven other
signatories, it could thereafter use anyone else it wanted.
KFH President Kutis’ written rejection of the grievance
states, inter alia, that KFH did not want to use Hoffmeister’s
livery because the two firms directly competed with each
other, KFH and other locally owned firms had been involved
in a continued public relations dispute with Hoffmeister and
other ‘‘large conglomerates,’’ and, therefore, KFH feared that
Hoffmeister drivers on loan to KFH would disparage KFH
to its clientele and provide poor service at KFH funerals.
Kutis’ response further stated that the usefulness to KFH of
Hoffmeister’s services was substantially diminished by
Hoffmeister’s perceived customary reservation of the right to
cancel the leasing of livery on 24 hours’ notice. The arbitra-
tor’s decision, offered and received into evidence without ob-
jection or limitation, states that KFH objected to using
Hoffmeister’s livery for the further reasons that its general
manager had been ordered to cease all communication with
KFH, thereby interfering with its ability to resolve any prob-
lems relating to such trades, and that KFH did not want to
accept the inferior equipment a competitor would be ex-
pected to lend. Eventually, KFH and the Union agreed to go
to arbitration on the matter.
Following the arbitration hearing, the Union filed with the
arbitrator a brief which stated, in part:
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Ziegenhein and Lupton are both signatory firms; KFH has trad-
ed with Ziegenhein, at least.
12 The complaint further alleges that the Union violated Sec.
8(b)(i)and(ii)(A) by entering into art. XVI, sec. 18, in January 1990,
and by filing a grievance against KFH in May 1990. The charges
which underlie the complaint were not filed until August 1991, and
the General Counsel’s brief concedes (p. 9 fn. 4), in effect, that
these allegations are barred by Sec. 10(b) of the Act. No contention
is made that Sec. 10(b) bars the complaint allegations described in
the text. See Retail Clerks Local 770 (Hughes Markets), 218 NLRB
680, 683 fn. 11 (1975).
The Union’s reading of the contract provides for the
protection of the work of the drivers which are rep-
resented by the Union which includes either person
[sic] regularly employed or those who work from the
Extra Board. While the Union agrees that no individual
represented by the Union lost work or pay as a result
of the failure of the Company to use Hoffmeister rather
than a non-signatory employer, the Union’s concern is
not for the short term consequences but instead is for
the eventual loss of jobs.
If a signatory employer has available equipment
which sits idle while non-signatory equipment and driv-
ers are used, eventually the equipment which sits idle
will be eliminated. Ultimately full-time drivers whose
employers are unable to support a full-time driver with
its own business will have to eliminate such positions
unless by trading with other signatories a sufficient
level of combined business exists to justify the contin-
ued employment of the driver and maintenance of the
equipment.
The facts of this case illustrate the eventual problem.
[KFH] has taken work which was previously performed
by either Hoppe (the livery company), Ziegenhein or
Lupton11 and now allows non-signatory employers to
perform a portion of the work. As the event which trig-
gered the use of non-signatory employers was the de-
mise of Hoppe, it is reasonable to conclude that the
work, or at least a portion thereof previously performed
by Hoppe with persons covered by the contract, is now
being performed by the employees of non-signatory
[employers]. Jobs at Hoppe covered by the collective
bargaining agreement have been converted to jobs with
non-signatory firms, a fact which threatens all the bene-
fits of the collective bargaining agreement which have
been established over the years. The Union clearly has
a legitimate interest in enforcing its contractual work
and preservation rights. The situation which is pre-
sented to the Arbitrator does not constitute, as claimed
by [KFH], a case of ‘‘no harm - no foul.’’ While the
harm is not immediate or specific to any individual,
there is harm nonetheless.
E. The Arbitrator’s Award; the Union’s Section 301
Suit to Compel KFH to Comply Therewith
The arbitrator’s award, issued on April 10, 1991, stated, in
part, that the trading/renting clause in KFH’s bargaining
agreement
prohibits all signatory establishments from hiring non-
union livery without first resorting to trading.
. . . .
. . . The evidence does not suggest that the practical
aspects of trading with Hoffmeister Mortuaries are like-
ly to represent the bleak picture [KFH] is painting . . .
Nothing in this award requires [KFH] to put itself at
risk of non-delivery of required driver and equipment
by Hoffmeister because of less than a firm commitment
on trading by Hoffmeister in each individual case; noth-
ing in this award requires [KFH] to do more than make
a trading request in a businesslike manner; and nothing
in this award requires [KFH] to use Hoffmeister drivers
or equipment if there is not a good faith cooperation by
that signatory employer. Of course, if there is a lack of
cooperation, the facts may have to be aired in another
arbitration involving a refusal to trade, or arbitrations,
involving cases of individual trading. With these quali-
fications, the grievance must be sustained. [KFH] is re-
quired to attempt to trade with Hoffmeister prior to re-
sorting to hire of non-union livery.
KFH refused to comply with this award. On May 24,
1991, the Union filed in the United States District Court for
the Eastern District of Missouri, Eastern Division, a com-
plaint, seeking enforcement of the arbitrator’s award, under
Section 301 of the Act. On September 18, 1991, while the
district court complaint was still pending, the Board’s Re-
gional Director issued the complaint in the case at bar, alleg-
ing that the Union had violated Section 8(b)(4)(i)and(ii)(A)
of the Act by obtaining the arbitrator’s award and had vio-
lated Section 8(e) by bringing the district court action to en-
force the award.12 In addition, the General Counsel filed a
petition to enjoin the Union’s prosecution of the Section 301
suit. Pursuant to an agreement between the General Counsel,
KFH, the Union, and the district court, further proceedings
on the Section 301 suit were stayed pending the Board’s de-
termination in the case before me.
F. Analysis and Conclusions
Section 8(e) of the Act provides:
It shall be an unfair labor practice for any labor or-
ganization and any employer to enter into any contract
or agreement, express or implied, whereby such em-
ployer ceases or refrains or agrees to cease or refrain
from handling, using, selling, transporting or otherwise
dealing in the products of any other person, or to cease
doing business with any other person.
At least as interpreted by the arbitrator, the trading/renting
clause in KFH’s bargaining agreement with the Union, by re-
quiring KFH to give preference to Hoffmeister before obtain-
ing livery elsewhere, constitutes an agreement to ‘‘cease
doing business’’ with the nonsignatory firms with which
KFH has previously dealt in preference to Hoffmeister. See
Teamsters Local 710 (Wilson & Co.), 143 NLRB 1221, 1227
(1963), approved in relevant part 335 F.2d 709, 717 (D.C.
Cir. 1964); see also NLRB v. Operating Engineers Local 825
(Burns & Roe), 400 U.S. 297, 304-305 (1971). However, not
every bargaining contract with a ‘‘cease doing business’’ ob-
jective that comes literally within the proscription of Section
8(e) is necessarily unlawful. The Board and the courts have
1215TEAMSTERS LOCAL 610 (KUTIS FUNERAL HOME)
13 Decision on remand, 243 NLRB 1121 (1979), enfd. and affd.
660 F.2d 406 (9th Cir. 1981), cert. denied 457 U.S. 1105 (1982).
The decisions cited in this footnote are irrelevant to the instant case.
14 Accordingly, I need not and do not consider the relevance vel
non of any such evidence.
15 KFH’s position as to the extra-board drivers’ voting eligibility
vel non is not assisted by the Kriegshauser election. The record fails
to show whether Kriegshauser ever used any extra-board drivers, or
whether such drivers cast any of the unopened challenged ballots.
16 The court stated that the proposition thus rejected by it had been
adopted by the Board in the decision under review. My spontaneous
reading of the Board’s decision in Griffith led me to conclude that
Continued
held that a union may lawfully require a contracting em-
ployer to cease or refrain from doing business with another
employer if the union’s objective properly falls within certain
carefully delineated exceptions, such as work preservation,
maintenance of union standards, and (the Board has held)
preserving the existence and solvency of employee trust
funds to which both of such employers contribute. In deter-
mining whether a contract clause violates Section 8(e), the
contractual context and the relationships of all those affected
must be taken into account. Electrical Workers IBEW Local
46 (Puget Sound NECA), 303 NLRB 48 (1991); Operating
Engineers Local 12 (Griffith Co.), 212 NLRB 343 (1974), re-
versed and remanded 545 F.2d 1194 (9th Cir. 1976), cert. de-
nied 434 U.S. 854 (1977).13
In the case at bar, the Union seeks to defend its conduct,
in connection with the trading/renting clause and the arbitra-
tor’s award, on the ground, inter alia, that such conduct
sought to preserve work for drivers on the extra board. The
General Counsel and KFH seek to respond on the ground,
essentially, that the contractual bargaining unit is at least al-
legedly confined to KFH’s regular drivers and the existence
of the extra board is legally irrelevant.
Initially, it is clear that as interpreted by the arbitrator, the
trading/renting clause preserves work opportunities for the
extra-board drivers, who have certain contractual rights to
drive vehicles traded or rented between the signatory em-
ployers. I perceive no record support for the General Coun-
sel’s factual assertion, on which he mostly rests his claim
that the extra-board drivers’ work preservation interests are
immaterial, that these drivers are ‘‘fully employed and there
is no likelihood that any would ever be laid off’’ (Br. p.
11).14 The materiality of the extra-board drivers’ work pres-
ervation interests is disputed by KFH on the ground, inter
alia, that ‘‘the Extra Board drivers are not [KFH’s] employ-
ees any more than they are Hoffmeister’s employees or the
employees of any other signatory to a Local 610 contract in
the funeral industry. If the regular drivers of five (5) of these
funeral homes filed separate petitions to decertify Local 610,
would the Board include—as eligible voters—the Extra
Board drivers in each decertification election? Of course
not!’’ (pp. 11–12, emphasis in original, footnotes omitted.)
However, at least after KFH calls for an extra-board driver
and puts him on its payroll, that extra-board driver obviously
becomes an employee of either KFH alone or (as the Union
contends) of KFH and the other signatory employers jointly,
and becomes entitled to the wage rates which KFH’s contract
with the Union specifies for extra-board drivers. Moreover,
at least assuming (with the General Counsel and KFH) that
no joint-employer relationship exists, the instant record fails
to show whether any or all the extra-board drivers would be
entitled to vote in a decertification election with respect to
KFH’s drivers, because the record fails to show how many
hours or how regularly any of the extra-board drivers works
for KFH; see Berea Publishing Co., 140 NLRB 517, 518-519
(1963); Pat’s Blue Ribbons, 286 NLRB 918 (1987); Trump
Taj Mahal Casino Resort, 306 NLRB 294 (1992).15
In any event, the arguments tendered by the General
Counsel and KFH disregard the fact that because regular
KFH drivers have the contractual right to be placed on the
extra board during periods of layoff by KFH, the preserva-
tion of job opportunities for the extra-board benefits KFH’s
regular drivers, who are undeniedly in the contractual bar-
gaining unit. Moreover, the General Counsel and KFH err in
their basic assumption that an agreement falls within the
work-protection exceptions to Section 8(e) if, but only if, the
employees sought to be protected are employees of the con-
tracting employer within an appropriate unit represented by
the contracting union. While this accurately describes most
cease-doing-business agreements which have been held not
violative of Section 8(e), not all such lawful agreements meet
these criteria. Thus, in Puget Sound, supra, the Board held
lawful a union’s effort to obtain an arbitrator’s award forbid-
ding an employer association to provide for its nonunionized
employer members a separate referral service and apprentice-
ship program whose absence would allegedly cause such
nonunionized employer members to withdraw from the em-
ployer association. The Board so held even though the asso-
ciation may not have been a party to the multiemployer bar-
gaining agreement which established a union referral service
and apprenticeship program, on the ground that the associa-
tion had signed that agreement on behalf of its unionized em-
ployer members, the grievance presented to the arbitrator
sough to maintain the skilled employee pool available for re-
ferral under the contractually established referral service and
to protect that service and the contractually established ap-
prenticeship program, and the employees enrolled in the con-
tractually established apprenticeship program and working
for employers under the agreement (which called for their
hire by and transfer between the employer parties) had a
common interest in the stability of that arrangement. On the
other hand, the Board held violative of Section 8(e) a con-
tract clause which in effect prohibited a new subcontractor
from working on a project unless and until his predecessor
on that project had paid the wages and fringe benefits called
for by the collective-bargaining agreement, even though the
employees of both subcontractors were part of the multiem-
ployer unit covered by that bargaining agreement, on the
ground that employees of one of the covered subcontractors
had no direct economic interest in assuring that other covered
subcontractors paid their employees wages or fringe benefits.
Painters Local 36 (Stewart Construction), 278 NLRB 1012,
1013–1015 (1986). Finally, in Griffith, supra, 545 F.2d at
1201, the court of appeals (after stating that primary cease-
doing-business clauses ‘‘must confer benefits on the mem-
bers of a relevant ’work unit’ and not on some larger group
such as members of the Union generally’’), specifically re-
jected the proposition that the relevant work unit is equiva-
lent to the respective bargaining unit.16
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as to this issue, the Board had agreed with the court of appeals;
more specifically, that the Board had found the cease-doing-business
agreement to be lawful even though the alleged primary and second-
ary employers were not included in a single, multiemployer unit. See
212 NLRB 343 (‘‘Accepting, as we [do], the administrative law
judge’s conclusion that the record will not support a finding of a sin-
gle, industrywide bargaining unit, the answer to [the critical] ques-
tion [in this case] must be in relation to multiple units of employ-
ees’’). However, in Puget Sound, supra, fn. 11, the Board described
Griffith as involving a multiemployer unit.
17 However, as to the job protection which this clause affords reg-
ular drivers of employers other than KFH, union counsel’s opening
statement in the case at bar lays about the same stress as did his
brief to the arbitrator.
18 Hoppe, the largest employer of regular drivers, had five on its
payroll; the extra board them consisted of six drivers. At the time
of the November 1991 hearing, KFH had three regular drivers.
This approach indicates that the relationship between the
extra-board employees, KFH, the Union, the bargaining
agreement, and the regular KFH drivers in the bargaining
unit is sufficient to render the extra-board drivers part of the
relevant work unit within the meaning of Griffith, supra, 545
F.2d at 1201. Thus, the extra-board drivers, when on KFH’s
payroll, perform the same work as KFH’s regular drivers; the
bargaining agreement between KFH and the Union governs
the extra-board drivers’ wages and affords them certain re-
tention and hiring rights, including certain preferences in fill-
ing vacancies in jobs as regular KFH drivers; KFH is con-
tractually required to participate in making monthly fringe
benefit payments of about $800 (distributed among eight em-
ployers) on behalf of each of the five or six employees on
the extra board; all the drivers on the extra board participated
in the vote to ratify the Union’s contract with KFH; regular
drivers who are laid off by or who otherwise leave KFH
have the right to go on the extra board; KFH’s president is
one of four signatory-employer members of a union-em-
ployer committee which administers the referral of extra-
board drivers, entertains their grievances, and has the power
to discipline or discharge them; and KFH defrays part of the
cost of administering this committee.
It may well be that laying to one side the protection which
the trading/rental clause affords to the extra-board drivers
and (through them) to KFH’s regular drivers, the clause as
interpreted by the arbitrator would violate Section 8(e) be-
cause it has a purpose of preserving the jobs of regular driv-
ers who work for signatory employers other than KFH—spe-
cifically, Hoffmeister. See Wilson, supra, 143 NLRB at 1227,
and cases cited. However, the job protection which this
clause affords members of the relevant work unit (that is, a
relevant work unit which includes the extra board) renders
the clause lawful unless the main purpose of this clause is
secondary in nature. See Sheet Metal Workers Local 91
(Schebler Co.), 294 NLRB 766, 770 (1989), approved in ma-
terial part 905 F.2d 417 (D.C. Cir. 1990); AGC of California,
280 NLRB 698, 701–702 (1986). I conclude that the record
fails to show that the main purpose of the clause as so inter-
preted was to protect the jobs of regular drivers employed by
firms other than KFH. KFH mostly relies upon union coun-
sel’s assertion, in his brief to the arbitrator, that if the
trading/renting clause is not enforced, ‘‘Ultimately full time
drivers whose employers are unable to support a full time
driver with its own business will have to eliminate such posi-
tions unless by trading with other signatories a sufficient
level of combined business exists to justify the continued
employment of the driver and maintenance of the equip-
ment.’’ However, union counsel’s reliance on this ‘‘Ulti-
mately’’ argument is attributable to the fact that regular driv-
ers would be contractually entitled to keep their jobs even
when the entire extra board is unemployed. As to the sincer-
ity and substantiality of the Union’s concern with the job se-
curity of the extra board, I note that union counsel’s brief to
the arbitrator (as well as his arguments to me) specifically
expressed that concern;17 the size of the extra board was one
of the two main issues during the negotiations which led up
to the 1990 contracts; of the 19 drivers eligible to participate
in the contract ratification vote, almost a third were on the
extra board and more were on the extra board than worked
as regular drivers for any of the individual employers;18 and
the extra-board drivers are contractually more vulnerable to
unemployment than the regular drivers.
The complaint allegations that the Union violated Section
8(b)(4)(i)and(ii)(A) rest entirely on the claim that as inter-
preted by the arbitrator, the trading/renting clause violated
Section 8(e). My finding that the clause did not run afoul of
Section 8(e) calls for dismissal of the complaint in its en-
tirety.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Charging Party is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
3. Respondent has not violated the Act in the respects al-
leged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]