Warehouse Employees' Union Local 169

National Labor Relations Board - Board Decisions

Jun 9, 1975

218 N.L.R.B. 310 (N.L.R.B. 1975)

. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Employees ' Union Local 169, a/w the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America 1
and Frankford Quaker Grocery Company, Inc 2
and Food Drivers , Helpers & Warehouse Employ-
ees, Philadelphia & Vicinity, and Camden &
Vicinity, New Jersey, Local 500, a/w the Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America .3 Case 4-
CD-376
June 9, 1975
DECISION AND DETERMINATION OF
DISPUTE
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
This is a proceeding under Section 10(k) of the
National Labor Relations Act, as amended, follow-
ing charges filed by Peter M. Stern, Esq., identified in
the record as an attorney-at-law representing Frank-
ford Quaker Grocery Company, Inc., the Employer
herein, alleging that Respondent, Warehouse Em-
ployees' Union Local 169, a/w the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, has violated Section
8(b)(4)(D) of the Act by threatening, coercing, and
restraining the Employer with an object of forcing or
requiring the Employer to assign certain work to
employees represented by Respondent rather than to
employees represented by Food Drivers, Helpers &
Warehouse Employees, Philadelphia & Vicinity, and
Camden & Vicinity, New Jersey, Local 500, a/w the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Food Drivers. A duly scheduled hearing
was held on December 18, 1974, at Philadelphia,
Pennsylvania, before Hearing Officer Jeffrey C.
Falkin. All parties appeared at the hearing and were
afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence
on the issues. Thereafter, briefs were filed by the
Employer, Respondent, and the Food Drivers.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Hearing
Officer made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. The Board has considered the entire record
in this proceeding, including the briefs, and hereby
makes the following findings:
1 The name of Respondent appears as amended at the heanng.
2 The name of this party appears as amended at the heanng.
218 NLRB No. 43
I. THE BUSINESS OF THE EMPLOYER
The Employer, a Pennsylvania corporation, is
located in Philadelphia, Pennsylvania, where it is
engaged in the wholesale sale and delivery of canned
and frozen foodstuffs to retail grocery stores located
in Pennsylvania and New Jersey. The Employer
annually purchases goods valued in excess of $50,000
from points outside the Commonwealth of Pennsyl-
vania. We find, in accord with the stipulation of the
parties, that the Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
The parties stipulated, and we find, that Respon-
dent and the Food Drivers are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE DISPUTE
A. The Work in Dispute
The notice of hearing describes the work in dispute
as being "The loading of turkeys from Employer's
warehouse into its delivery trucks at G- and Erie
Avenues, Philadelphia, Pennsylvania." The record
developed at the hearing, however, shows that the
foregoing description is too encompassing and that
the dispute is restricted to the loading of frozen
turkeys from the Employer's warehouse at G and
Erie Avenues, Philadelphia, Pennsylvania, or from
refrigeration railroad cars located at its warehouse,
into delivery trucks during the 10 days to 2 weeks
immediately prior to each Thanksgiving and each
Christmas, annually.
There is no dispute concerning the loading of
frozen turkeys at any other time, or the loading of
any other foodstuffs at any time, which work is
performed by employees represented by the Food
Drivers.
B. Background Facts
Respondent and the Food Drivers have represent-
ed separate units of certain of the Employer's
employees for over 30 years, during which time the
normal duties of food drivers included the loading
into trucks and the delivery of foodstuffs which
warehousemen, in pursuit of their usual duties, had
selected, assembled, and transported to loading
areas. Throughout the years, however, the Food
Drivers entered into various "accommodations" with
Respondent and the Employer, one of which
3 The name of this party appears as amended at the heanng.
WAREHOUSE EMPLOYEES' UNION LOCAL 169 311
permitted certain warehousemen to perform loading
and/or driving work normally performed by food
drivers. Approximately five warehousemen were
engaged in such work during 1973. These parties also
entered into an accord in 1950 which permitted
warehouse employees represented by Respondent to
perform the loading work involved in the special
turkey program; i.e., the work here in dispute.
Since its inception, the turkey program has been
conducted essentially in the same manner and as a
special operation separate and apart from the
Employer's normal operation. It commences at 10
p.m., 2 hours prior to the end of the food drivers' last
shift, and continues until the work scheduled for the
night has been completed. According to Moore-
house, a vice president of the Employer and director
of its warehouse operations, overtime was paid "Only
if it required the work of overtime." All of the work
involved, including the disputed loading work, has
been performed by warehousemen except on "some"
Saturdays when "some" food drivers assisted in
loading because of heavy work volume.
The turkeys utilized in the program are received by
the Employer on pallets. The mode of truckloading
for customer delivery is dependent on order size:
pallet-sized orders are loaded simply by dropping the
pallet into trucks; handcart-sized orders by placing
the cart in the truck; less than pallet and cart sized
orders by off-loading therefrom and hand loading
into the trucks to insure full truck loads.
The seeds of the dispute herein were sown by the
Food Drivers October 30, 1973, letter to the
Employer to the effect that the foregoing "al-
lowances"were to be discontinued "[a]s we are going
into negotiations for a new . . . contract, we want
these past practices stopped. The company is to
abide by the conditions covered under the contract.
There will be no other allowances."4
On January 1, 1974, the Employer and the Food
Drivers executed a new bargaining agreement which
granted' no "allowances." Moorehouse, meanwhile,
had construed the October 30 letter as a revocation
of "allowances" which had pertained to both
"normal past practices as well as the turkey opera-
tion." Accordingly, sometime prior to January 1,
1974, he removed from the aforementioned five
warehousemen the loading and driving work they
had been performing. With respect to the revocation
of "allowances" as to these normal duties, which are
apart from the instant dispute of the turkey loading
program, there was no protest from Respondent or
any employee. He also determined, sometime prior
4 The' letter also notes that a copy thereof had been sent to Respondent's
president,
5 Moorehouse disputed Keane's claim to the disputed work by noting
that a copy of the October 30 letter had been sent to Respondent's
to the commencement of the 1974 turkey program, to
reassign the loading work performed thereunder to
two food drivers who, according to Moorehouse,
"could have been" assigned and performed the
loading work on a regular, straight-time basis.
On November 12, 1973, the scheduled date for
beginning the 1974 turkey program, three of Respon-
dent's stewards met with Moorehouse for the
purpose of ascertaining the manner in which the
program was going to be handled. Upon learning of
Moorehouse's anticipated change, Steward Keane
replied, "No, they are not [going to do that work].
This is our job and we are going to keep the job. We
have had it all these years and we are going to keep
it. [The Food Drivers] has taken a lot of jobs off us
and we are going to keep this one. We are going to
take [the Food Drivers] on." Keane then telephoned
his father, Respondent's president, and, after a
conversation not revealed in the record, stated to
Moorehouse that "We are going to have trouble."
The stewards departed with the admonition, in
Moorehouse's words, that "We were going to have
trouble and that they were going to load trucks. " 5
This confrontation caused Moorehouse to cancel
that evening's turkey operation.
On the following day, the parties formulated an
interim turkey program which, they agreed, was only
a "temporary stop-gap" measure under which Re-
spondent's members were permitted to continue to
load the frozen turkeys, but only by dropping pallets,
whether full or partially full, into the trucks. There
was to be no hand loading.
At the hearing, the Employer proposed the follow-
ing stipulation: if called to testify, Peter Stern, an
attorney representing both the Employer and its
bargaining group, would testify to the effect that on
November 12 and 13, 1974, he spoke with, and was
told by, officials of each of the Unions involved
herein that if the turkey loading "was assigned to one
union over the other, then the union not assigned the
work would shut down" the Employer, and that
"because of these threats, [the Employer] went to an
interim program that was a stop-gap measure,
agreeable to everyone." Respondent agreed with, and
stipulated to, the foregoing. The Food Drivers,
however, agreed to accept the Employer's proposed
testimony "as long as it is clear we are not stipulating
to what Mr. Stern would say as a fact. Just to the fact
that it would be testified to if he were called as a
witness." The record contains no evidence to dispute
Stern's proposed testimony.
president, and by referring to the absence of protest from any source
following the Employer's withdrawal of the loading and driving work which
the five warehousemen had performed.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 1974 turkey program was conducted in
accordance with the terms of the interim agreement,
with employee-members of each Union observing
those of the other Union, to make certain that the
terms thereof were being carried out. The inefficient
method of loading, however, caused the Employer to
use 10 trucks and 10 drivers more than were used in
the 1973 program, at a cost of $2,000 more than the
cost would have been had warehousemen done the
loading without restrictions.
C. Positions of the Parties
Respondent has moved to quash the notice of
hearing and dismiss the complaint,6 arguing that (1)
there is no dispute cognizable under Section
8(b)(4)(D) of the Act because Respondent has not
threatened a work stoppage and, moreover, has
notified the Board that it will not conduct a work
stoppage, and (2) such dispute as may exist is subject
to the grievance-arbitration procedures in each of the
Union's collective-bargaining agreements with the
Employer and, therefore, resolution of the dispute
should be deferred to the arbitral forum in conformi-
ty with Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971). Respondent
further argues in its brief that all parties need not
participate in the proposed arbitration proceeding
because "The Employer is free to arbitrate the
dispute with [Respondent], and the arbitrator's
ruling would necessarily resolve the question." On
the merits, Respondent urges that the work in dispute
be assigned to its members on the basis of past
practice.
The Employer contends that the agreed-upon
interim turkey-loading procedure does not constitute
a satisfactory work dispute adjustment primarily
because its entry into that agreement, and its reversal
of its intended work assignment, was dictated by
strike threats. It further contends that Respondent's
request for deferral is without merit because there is
no arbitration provision binding on all parties.
Therefore, the Employer argues, the dispute is
properly before the Board. Substantively, the Em-
ployer urges the Board to assign the disputed work to
its employees represented by the Food Drivers, citing
as factors its preference for such an assignment, its
collective-bargaining agreement with, and the
Board's certification of, that Union, the Food
6 The motion was made at the hearing and referred to the Board by the
Hearing Officer.
7 The record contains no probative evidence showing that the Unions'
parent international has utilized , or intends to utilize , such procedures as
may be available to it to resolve the dispute The Employer, however, has
submitted an affidavit from its labor attorney which it attached to its brief
and which states , in pertinent part, that on the day the dispute erupted he
explained the dispute to the International Union's vice president in charge
of warehousing operations , who stated that "he could do nothing to resolve
Drivers revocation of the past practices allowed
Respondent, company and industry practice, and
efficiency.
The Food Drivers contends that the Board should
award the work to its members employed by the
Employer for substantially the same reasons as given
by the Employer, and on the additional grounds. of
skill and economy.
D. Applicability of the Statute
Before the Board may proceed with a determina-
tion of a dispute pursuant to Section 10(k) of the Act,
it must be satisfied that there is reasonable cause to
believe that Section 8(b)(4)(D) has been violated, and
that there is no agreed-upon method for voluntary
settlement of the dispute.
At the hearing Respondent contended that the
dispute was not properly before us because, it
argued, it had not threatened a work stoppage and
had assured the Board that it would not conduct
such a stoppage. It does not renew that argument in
its brief and, as previously set forth, the record
provides reasonable cause to believe that Respon-
dent, through its agents, engaged in the type of
conduct prohibited by Section 8(b)(4)(D), and did so
for the declared purpose of compelling the Employer
to assign the disputed work to Respondent's workers.
Respondent's assurances to the Board that it would
not conduct a strike is laudatory , but meaningless
insofar as the Board's mandate under Section 10(k) is
concerned.
As to the interim agreement under which the
turkeys were loaded during the pertinent 1974
seasons , we note that all of the parties have, expressed
agreement on the interim nature and duration of that
agreement, that both Unions continue to claim the
disputed work,7 and that the agreement, therefore,
does not reliably assure that the dispute will not
again arise in the future. Accordingly, we fmd that
the interim agreement did not voluntarily adjust the
dispute within the meaning of Section 10(k) of the
Act.
As to Respondent's deferral contention, the Board
has long since declined to find that grievance
proceedings not involving all of the parties to the
dispute constitute an adequate method for adjust-
ment within the meaning of Section 10(k).8 The fact
that each of the separate contracts between the
the disagreement,, since neither Local would make the first move or
negotiate with the other."
8 The Denver Printing Pressmen and Assistants Union, Local 22, a/w the
International Printing and Grapluc Communications Union (The Denver
Publishing Company), 208 NLRB 745 (1974). United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, Local 67 and Boston and
Vicinity Carpenters District Council (Aberthaw Construction Co.), 208 NLRB
289 (1974); United Steelworkers of America, AFL-CIO, and its Local 4454
(Continental Can Company, Inc.), 202 NLRB 652 (1973).
WAREHOUSE EMPLOYEES' UNION LOCAL 169 313
Employer and Respondent and the Employer and
the Food Drivers provides for arbitration of such
dispute under that contract does not support a
finding that all parties have agreed to be bound by a
single tripartite arbitration proceeding. Accordingly,
we find that the separate contractual grievance-
arbitration procedures do not constitute an agreed-
upon method for the voluntary adjustment of the
dispute, and that deferral is inappropriate. We
further find that the Board is not precluded from
making its determination in this proceeding, that
there is reasonable cause to believe that a violation of
Section 8(b)(4)(D) has occurred, and that the dispute
is properly before the Board for determination under
Section 10(k) of the Act. Accordingly, we find no
merit in Respondent's motion to quash, which we
hereby deny.
E. Merits of the Dispute
We shall, in conformity with the J. A. Jones cases
and pursuant to the Supreme Court's C.B.S. deci-
sion,10 determine in this proceeding presented for
resolution under Section 10(k) of the Act the
appropriate assignment of the disputed work- after
giving due consideration to the various relevant
factors involved.
1. Certification
The record indicates that both Unions have been
certified by the Board; Respondent in 1941 in a unit
not disclosed by the record, and Teamsters Local
107, the Food Drivers predecessor for food opera-
tions, in 1944 "as exclusive representative for the
driver's helper and loader employees employed at"
the Employer.
2. Company, industry, and past practice
As indicated above, for the last 30 years the food
drivers' normal work functions at the Employer have
included the loading into trucks of all foodstuffs,
including frozen turkeys, which Respondent's mem-
bers prepared for loading pursuant to their normal
work duties. The disputed work, however, cannot be
categorized as one of the food drivers' normal work
functions, since the Food Drivers, with the Employ-
er"s apparent consent, has allowed Respondent to
carve that work out of the Food Drivers normal
operation and to perform that work for the past 24
years as part of Respondent's normal work function.
11 International Association of Machinists, Lodge No. 1743, AFL-CIO (J.
A. Jones Construction Company), 135, NLRB 1402 (1962).
Lo N.L RB. v. Radio & Television Broadcast Engineers Union, Local 1212,
International Brotherhood of Electrical Workers, AFL-CIO [Columbia
Broadcasting System], 364 U.S. 573 (1961).
11 The Employer asserted in its brief that loading by members of the
Food Drivers is an industrywide practice, but it has presented no
Industry practice which the Employer claims in its
brief, although without support in the record,
"prohibits any loading work by [Respondent] mem-
bers," neither favors an award to the Food Drivers
nor detracts from Respondent's claim to the work on
the basis of the Employer's past practice." The latter
factor favors an award to employees represented by
Respondent.
3. Collective-bargaining agreements
The record suggests that the Employer has had
separate but continuous contractual relationships
with Respondent and Food Drivers over the years,
but is silent as to the contents of any of those past
agreements, and contains the parties' current agree-
ments only.
The collective-bargaining agreement between the
Employer and Respondent does not contain any
specific jurisdictional provisions, but states generally,
in section 4, that "The Employer recognizes [Re-
spondent] as the soleand exclusive bargaining agency
... for all its warehouse employees classified herein
employed by the Employer in Philadelphia, Pennsyl-
vania, and vicinity." Schedule A of the agreement,
which lists the classifications, fails to include the
classification of "loader" 12 or any classification
pertaining to truckloading.
On the other hand, the Food Drivers current
collective-bargaining agreement with the Employer
provides in article 1 that "This Agreement is
intended to govern wages, hours and working
conditions of drivers helpers . . . loaders . . . now
employed and hereafter employed" by the Employer.
The agreement further provides in article 7 that the
"Employer agrees that employees covered by this
agreement shall perform all available work opportu-
nities within the scope of this Agreement ...." and
in section 2 of article 17 that "no helper shall be
required where a driver can load or unload without
assistance ...."
It is clear, therefore, that the Food Drivers current
agreement covers the work in dispute. It is equally
clear, and the Employer and Food Drivers admit,
that for the past 24 years they have ceded the
disputed work to Respondent despite any contractu-
al provisions to the contrary.
The Employer and Food Drivers contend, howev-
er, that the past practices no longer exist because
Respondent did not protest and, therefore, ac-
substantive - evidence, and the record does not otherwise contain any
evidence to support its assertion.
12 The schedule also states that "The [classification of] selector and
loader shall be one job, namely , `Selector-Loader', or `General warehouse-
men-Heavy'." There is no evidence , or contention, that this classification
performs trucldoading work.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quiesced in the rescission of those past allowances,"
which, the Employer argues, were contractually
nullified by the bargaining agreement between the
Employer and the Food Drivers.13 Respondent
contests those positions, arguing, in substance, that
inasmuch as it was a party to the establishment of the
past practice which, moreover, is "as binding as an
express contractual provision," but was not a party
to disestablishment of the practice by the Employer
and the Food Drivers, its "right" to perform the
disputed work cannot be altered or abolished absent
its consent thereto.
These ' arguments merely corroborate the claims of
the disputants. The facts remain, however, that the
Food Drivers has reasserted its jurisdiction over the
disputed work which, moreover, is covered by the
Food Drivers, but not Respondent's agreement with
the Employer. These factors favor an award to
members of the Food Drivers.
4. Employer assignment and preference
The Employer requests the Board to honor its
assignment of the disputed work to its employees
represented by the Food Drivers. This factor also
tends to favor an award to members of the Food
Drivers.
5. Skills, efficiency, and economy
'There is nothing in the record to indicate that
members of the competing labor organizations
cannot perform the disputed work with equal skill,
efficiency, and economy. The Employer argues that
the disputed work could be assigned to, and
performed by, the Food Drivers members on a
straight-time basis, thereby eliminating the overtime
pay sometimes paid to Respondent's members. The
Employer, however, admittedly has paid overtime
only when required to do so in accordance with the
work schedule it established-a benefit which pre-
sumably would inure to food drivers required to
perform the disputed work on an overtime basis.
The Employer contends that, in making its award,
the Board should consider the - inefficient and
uneconomical manner in which the 1974 turkey
program was carried out pursuant to the parties'
interim agreement. We disagree. All parties clearly
understood that that agreement was to be a one-shot
deal, a temporary, stopgap measure to be utilized
only during 1974, and pending a permanent adjust-
13 The Employer argues, in this regard, that sec. 2 of art. 6 of its contract
th the Food Drivers, which prohibits the Employer from entering into any
greement with its employees which conflicts with its bargaining agreement,
ment of the dispute. The manner in which the parties
agreed to conduct that temporary operation, there-
fore, and the expenses incurred thereby have no
proper bearing on the considerations pertinent to an
appropriate allocation of the disputed work. We
cannot find that any of the foregoing factors militate
in favor of an award to the employees represented by
either disputant.
Conclusion
Having considered all pertinent factors, we con-
clude that, on balance, employees represented by the
Food Drivers are entitled to perform the work in
dispute. In making this determination, we are
assigning the disputed work to employees of the
Employer who are represented by the Food Drivers,
but not to that Union or its members. Our present
determination is limited to the particular controversy
which gave rise to this proceeding.
DETERMINATION OF DISPUTE-
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and on the basis of the
foregoing findings and the entire record in this
proceeding, the National Labor Relations Board
hereby makes the following Determination of Dis-
pute:
1. Employees employed by Frankford , Quaker
Grocery Company, Inc., who are represented by
Food Drivers, Helpers & Warehouse Employees,
Philadelphia & Vicinity, and Camden & Vicinity,
New Jersey, Local 500, a/w the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, are entitled to perform
the disputed work of loading frozen turkeys from
Frankford Quaker Grocery Company, Inc.'s ware-
house located at G and Erie Avenues, Philadelphia,
Pennsylvania, or from refrigeration railroad cars
located at the warehouse, into delivery trucks during
the 10 days to 2 weeks immediately prior to each
Thanksgiving and each Christmas, annually.
2. Warehouse Employees' Union Local 169, a/w
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is not
entitled by means proscribed by Section 8(b)(4)(D)
of the Act, to force or require Frandford Quaker
Grocery Company, Inc., to assign the disputed work
to individuals represented by that labor organization.
constitutes a contractual nullification of the Employer's past practice of
using Respondent's members to perform the disputed work.
WAREHOUSE EMPLOYEES' UNION LOCAL 169 315
3. Within 10 days from the date of this Decision Director for Region 4, in writing, whether or not it
and Determination of Dispute, Warehouse Employ- will refrain from forcing or requiring Frankford
ees" Union Local 169, a/w the International Brother- Quaker Grocery Company, Inc., to assign the work
hood of Teamsters, Chauffeurs, Warehousemen and in a manner inconsistent with this Determination.
Helpers of America, shall notify the Regional