Brotherhood of Teamsters, Etc., Local 70

National Labor Relations Board - Board Decisions

Apr 16, 1962

136 N.L.R.B. 1086 (N.L.R.B. 1962)

1.086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters and Auto Truck Drivers, Local 70,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Ind. and Brotherhood of
Teamsters and Auto Truck Drivers, Local 85, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Ind. and Hills Transportation Co. Case
No. 0O-CD-73. April 16, 1962
DECISION AND ORDER QUASHING NOTICE
OF HEARING
This proceeding arises under Section 10(k) of the Act which pro-
vides that "whenever it is charged that any person has engaged in
an unfair labor practice within the meaning of paragraph (4) (D)
of Section 8(b), the Board is empowered and directed to hear and
determine the dispute out of which such unfair labor practice shall
have arisen...."
On March 20, 1961, Hills Transportation Co., herein called the
Employer, filed with the Regional Director for the Twentieth Region
a charge alleging in substance that since on or about February 8, 1961,
Brotherhood of Teamsters and Auto Truck Drivers, Local 70, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., herein called Local 70, has induced and
encouraged individuals employed by the Employer to engage in a re-
fusal to work, and has coerced the Employer with an object of forc-
ing or requiring the Employer to assign certain work to members of
Local 70 rather than to Employer's employees who are members of
Brotherhood of Teamsters and Auto Truck Drivers, Local 85, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., herein called Local 85.
Thereafter, pursuant to Section 10 (k) of the Act and Sections
102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the
Regional Director investigated the charges and provided for an ap-
propriate' hearing upon due notice to all parties. The hearing was
held before James S. Jenson, hearing officer, on November 6 and 17,
1961, at San Francisco, California. All parties who appeared at the
hearing were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence bearing on the issues.
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are affirmed. A single brief was filed on behalf
of Local 70 and Local 85 and has been duly considered by the Board.
Upon the entire record in this case, the Board makes the following :
136 NLRB No. 93.
BROTHERHOOD OF TEAMSTERS , ETC., LOCAL 70 1087
FINDINGS OF FACT
1. The Employer is engaged in commerce within the meaning of the
Act.
2. Locals 70 and 85 are labor organizations within the meaning of
the Act.
3. The dispute :
a. The facts
The Employer is a trucking company engaged in transporting inter-
state freight from San Francisco to various points as far as the
Mexican border. Its main office and terminal are located in San
Francisco. The Employer is a member of California Trucking As-
sociation, herein called the Association, and through its membership
in, and grant of power of attorney to, the Association, was party to
a multiemployer collective-bargaining agreement with Local 85, the
bargaining agent of the Employer's workmen, including all its drivers.
Subsequent to July 1, 1961 and after the two incidents which gave rise
to this proceeding, the Association negotiated and executed a master
agreement with Teamster Joint Council 7, an organization which in-
cludes both Local 85 and Local 70 among its constituent members.
Both these contracts contain a so-called "Past Practices" clause which
provides in substance that all established past practices of the par-
ticular local, the Association, and the employers party thereto, that
came into being prior to the effective date of the contract, shall re-
main in full force and effect except as expressly modified or changed
by the agreement.
The claim for work advanced by Local 70 and disputed by the Em-
ployer is based upon a "past practice" assertedly covered by the
applicable contracts. Local 85 and Local 70 each cover a fixed geo-
graphic area, in their case adjacent territories-San Francisco County
and Alameda County. Other locals in the Teamster Joint Council 7
are found in contiguous territories covering the general California
area. Deliveries made for its shippers by the Employer, and pre-
sumably by other trucking companies forming the California Truck-
ing Association, include runs from shipper to receiver entirely within
the territorial confines of a single local, and like runs crossing from
the territory of one local into the geographic jurisdiction of another.
According to the contentions of the Council and the locals, the prac-
tice has been that drivers of any one trucking company make all
deliveries starting and ending within the confines of their local's geo-
graphic jurisdiction; they also are permitted, under the "practice," to
make runs starting from their own territory and ending at a point out-
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
side that one, as well as runs which originate in the area of another
local and continue directly and uninterruptedly into their home local
grounds. Drivers are not permitted to make runs starting and ending
entirely in the area of any foreign local. It was when two of the Em-
ployer's drivers were directed to make such complete pickup and de-
livery trips in the territory of Local 70, in Alameda County, that
agents of Local 70 protested and the work assignment dispute
materialized.
On February 8, 1961, Whitacre, a driver for the Employer, was dis-
patched from the Employer's San Francisco terminal to pick up at
Howard Terminals, Alameda County, an order consigned to a customer
within Alameda County. The employees of Howard Terminals, in-
cluding the forklift operators who load the trucks, are represented by
Local 70. While waiting for the truck to be loaded, Whitacre was in-
formed by a business agent for Local 70 that he could not load the
truck because both the pickup and delivery were within Alameda
County, and that he would have to hire a Local 70 driver to make the
limited delivery. Whitacre telephoned his dispatcher who told him
to return to the San Francisco terminal.
On March 17, 1961, Maillard, another driver for the Employer, was
dispatched to pick up an order at Howard Terminals. While the load-
ing was taking place, Maillard was informed by an individual he
surmised was a Local 70 man that Maillard could not load and haul
the shipment because it was consigned to a customer within Alameda
County and Maillard was a Local 85 man. Subsequently, the business
agent for Local 70 appeared and informed Maillard of the same thing.
Thereupon Maillard and the business agent engaged in a telephone
conversation with the Employer's dispatcher who directed Maillard
to hire a driver from the Local 70 hiring hall. Since that time the
Employer has hired firms under contract with Local 70 to make pick-
ups and deliveries within Alameda County.
b. The contentions of the parties
The Employer contends that in the past it has picked up and made
deliveries within Alameda County with its Local 85 drivers and at the
hearing introduced receipts showing such deliveries. Mr. Hills, for
the Employer, also testified that he had no knowledge of any union
rule which prohibited him from operating in this manner.
In support of its work claim, Local 70 relies upon the assserted past
practice under which Alameda County drivers are entitled to com-
plete runs in that territory; it contends that all the Teamsters locals in
the area, including itself and Local 85, have long agreed upon and
lived up to this oral jurisdictional rule. Local 70 also contends that
with this rule incorporated in the existing contracts in the form of
the "Past Practices" clause, the grievance and arbitration provisions
BROTHERHOOD OF TEAMSTERS, ETC., LOCAL 70 1089
of the contracts are the means by which the parties have voluntarily
agreed to settle disputes like this one. As to some instances of im-
proper deliveries, it explains them on grounds of practical difficulties
of policing every bill of lading.
As to the position of Local 85, Joseph Diviny appeared at the hear-
ing in his dual capacity as president of Local 85 and as president of
Joint Council 7. He testified to the existence of the rule and of its
intended inclusion in the "Past Practices" clause of the contracts. He
also stated unequivocally that Local 85 recognized its validity; the
substance of his testimony in its entirety is also that Local 85 intended
to continue to abide by that rule. More formally, and in a procedural
sense, the attorney who appeared at the hearing on behalf of Local 70
and participated fully in the proceeding, stated that he also repre-
sented Local 85, and that as to that local he was entering only a
"special appearance" for the purpose of moving that its name be
deleted from the notice of hearing. His motion was denied.
Whitacre and Maillard were called as witnesses. They said they
had never heard of the existence of the rule, but each of them added
categorically that they believed in and tried to abide by the union
rules. Whitacre took the further position that if he knew as a fact
that such a rule did exist, he would adhere to it. In this precise sense,
Maillard did not indicate his position, and he did note that he knew
of the Whitacre incident.
c. Conclusion concerning the applicability of the statute
We are of the opinion that the record in its entirety does not evidence
a jurisdictional dispute between competing groups of employees claim-
ing the right to perform the work in dispute and that therefore there
is no dispute cognizable under Section 10 (k) of this statute.
There is no real or substantial evidence that two competing groups
are contending for the work of making pickups and deliveries within
Alameda County. Local 85 never voiced any claim-or pressed-for
the disputed work, either at the time of the events or at the hearing.'
Affirmatively, instead, its president stated directly that the arrange-
ment under which the drivers represented by Local 70 are entitled to
the work was a valid one; his total testimony stands as an open ad-
mission that his local intends to continue to concede such employment
rights in the Alameda County drivers.
It is true, as the Employer's records reveal, that over a period of
several years its drivers have made about 15 short runs entirely within
the territorial boundaries of foreign local unions. In view of the
broad extent of the Employer's operations, we do not deem these
isolated instances sufficient to offset the positive testimony as to the
2 Cf Safeway Stores, Incorporated, 134 NLRB 1320.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
existence of the rule by Diviny, the official spokesman, not only of
Local 85, but, in his capacity as president of Joint Council 7, also of
Local 70 and other Teamsters locals affiliated in the general area. Like
Whitacre and Maillard, other individual drivers may not have been
aware of the overall practice generally.
On the entire record, we are satisfied that these local unions are in
agreement that the work in dispute here ought properly to be per-
formed by drivers operating out of Alameda County home terminals.
We view the arrangement as an effort by the two unions to adjust their
traditional jurisdictional work claims. Essentially, the dispute is be-
tween the Employer and Local 70 which is seeking to adhere to the
"past practice" rule. Local 85 makes no contrary claim, the Employer
therefore is not confronted with a dilemma between two competing
groups claiming the work. As the Board noted in Safeway Stores,
supra, implicit in the thrust of the Supreme Court's directive to the
Board in the CBS decision "is the proposition that Sections
8(b) (4) (D) and 10(k) were designed to resolve competing claims
between rival groups of employees, and not to arbitrate a dispute be-
tween a union and an employer when no such competing claims are
involved."' Accordingly, we find, on the entire record, that the facts
in the case do not present a jurisdictional dispute within the purview
of Sections 8 (b) (4) (D) and 10 (k) of the Act. We shall therefore
quash the notice of hearing.
[The Board quashed the notice of hearing.]
MEMBERS RoDGERS and LEEDOM took no part in the consideration of
the above Decision and Order Quashing Notice of Hearing.
2 N.L.R.B. v. Radio & Television Broadcast Engineers Union Local 1212, et al. (Columbia
Broadcasting System), 364 U.S. 573.
Connecticut State Board of Labor Relations and Norwalk Motor
Inn, Inc. and Hotel & Restaurant Employees & Bartenders
International Union, Local 288, AFL-CIO. Case No. AO-34.
April 16, 1962
ADVISORY OPINION
This is a petition filed by the Connecticut State Board of Labor
Relations, herein called State Board, for an advisory opinion in con-
formity with Section 102.98 and 102.99 of the Board's Rules and
Regulations, Series 8, as amended.
In pertinent part, the petition alleges :
1. There is pending before the State Board a proceeding for an
election and certification of bargaining representative (Docket No.
136 NLRB No. 109.