Warehouse, Mall Order, Office

National Labor Relations Board - Board Decisions

Sep 13, 1977

231 N.L.R.B. 1332 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse, Mail Order, Office, Technical and Pro-
fessional Employees Union, Local 743, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Macmillan Science Co., Inc. Case 13-CC-936
September 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On April 26, 1977, Administrative Law Judge Peter
E. Donnelly issued the attached Decision in this
proceeding. Thereafter, the General Counsel and the
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed on June 24, 1976,1 by Macmillan
Science Co., Inc., herein called Macmillan or Charging
Party, alleging in substance that Warehouse, Mail Order,
Office, Technical and Professional Employees Union,
Local 743, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called Respondent or Union, had engaged in
picketing activity at Race Warehouse Company, herein
called Race, in violation of 8(b)4)(i) and (ii)(B) of the Act.
An answer thereto was timely filed. Pursuant to notice, a
hearing was held before the Administrative Law Judge on
November 1, 1976. Briefs have been timely filed by
General Counsel, Charging Party, and Respondent which
have been duly considered.
I All dates refer to 1976 unless otherwise indicated.
FINDINGS OF FACT
I. THE EMPLOYER'S BUSINESS
Macmillan is a Delaware Corporation engaged in the
manufacture and distribution of science-related equipment
and supplies with a facility located in Chicago, Illinois. In
the past fiscal year, Macmillan, in the course and conduct
of these business operations received goods and materials
valued in excess of $50,000 directly from States other than
the State of Illinois, and during the same period shipped
goods and materials valued in excess of $50,000 from its
Chicago, Illinois, facility directly to customers located in
other States. The complaint alleges, the answer admits, and
I find that Macmillan is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.2
II. LABOR ORGANIZATION
The complaint alleges, the Union admits, and I find that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Employer's operation before the strike
At the facilities involved in the instant case, Macmillan is
engaged in the warehousing and distribution of scientific
and educational materials. The materials are received by
Macmillan from various suppliers which are then either
reshipped in the same form they were received or modified
in some way at the facility before shipment. Some 70
percent of the materials received by Macmillan are
reshipped without modification except for repacking in
some cases. Some 30 percent are modified in some fashion
before shipment to customers. Macmillan has no trucks or
drivers of its own, utilizing the services of common carriers
for these functions.
a. Shipping
A breakdown of the common carriers utilized by
Macmillan to ship its goods discloses that about 10 percent
were carried by the United States Postal Service, herein
called Postal Service; about 85 percent by United Parcel
Service, herein called UPS; about 5 percent by other
common carriers; a negligible amount was carried by air
freight and local delivery.
With respect to the loading of these vehicles it appears
that the Postal Service and local delivery employees loaded
their own trucks at Macmillan. Macmillan employees did
about 70 percent of the loading for the other common
carriers. The materials were taken from Macmillian docks
to the terminals of the common carriers for shipment to
customers.
' Jurisdiction over Macmillan, the primary employer, is sufficient to
establish jurisdiction regardless of the jurisdictional status of Race.
231 NLRB No. 156
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WAREHOUSE, MAIL ORDER EMPLOYEES, LOCAL 743
b. Receiving
Incoming materials were normally handled by the same
common carriers, and sometimes in the shippers' own
vehicles. The selection of carrier was normally made by the
shipper. About 75 of the incoming shipments were made by
UPS; about 10 percent by the Postal Service; about 15
percent by other common carriers, local delivery, and the
suppliers' own vehicles. A negligible amount arrived by air
freight.
With respect to the unloading of these vehicles at
Macmillan, the Postal Service and air freight unloaded
their own trucks while Macmillan employees unloaded
about 60 percent of their materials delivered by the
common carriers.
2. Employer's operation during the strike
The Union began picketing Macmillan, the primary
employer, on June 4. Thereafter the drivers of the common
carriers, with the exception of the Postal Service, refused to
cross the picket line at Macmillan either to pick up or
deliver materials. In order to maintain a shipping and
receiving operation, Macmillan contracted with Race, a
public warehouse company, for the lease of storage space
and a full-time warehouseman to assist in the loading and
unloading operation at Race. Macmillan leased trucks
from various truck rental companies and hired a leased
driver from Coast to Coast, a sister corporation of Race.
Beginning on June 8, Macmillan attempted to maintain a
shipping and receiving operation during the strike.
a. Shipping
The lease driver 3 would pick up the materials at
Macmillan's docking facilities. Macmillan employees did
the same percentage of the loading as before the strike-
about 70 percent. The goods were then delivered either to
the Race warehouse or directly to the terminal of the
common carrier at the option of the lease driver depending
on his schedule and the size of the shipment. If the goods
were delivered to Race, they were unloaded there and
reloaded into the trucks of the common carriers until
Respondent began picketing Race on about June 23, 1976.
Since the drivers of the common carriers would not cross
the picket line at Race, the goods were reloaded at Race
onto the lease truck for delivery to the terminals of the
common carriers.
Before June 23, when the goods were picked up at Race
by the common carriers, Macmillan, as it had done before
the strike when shipments were picked up at the Macmilli-
an docks, selected the common carrier to make the pickup
at Race.
b. Receiving
Prior to the picketing at Race on June 23, the incoming
shipments were taken by the common carriers to Race and
then delivered by the lease driver to Macmillan. After June
23, the lease driver picked up the goods at the common
Only one rental truck and the lease driver were used at any one time
during the strike.
I do not regard the warehousing function performed by Race as
carrier terminal and either delivered them directly to
Macmillan or delivered them to Race where they were
reloaded and then delivered to Macmillan by the lease
driver. Which of these two methods was utilized depended
upon time elements and other committments of the lease
driver.
When the goods arrived at Macmillan docks, Macmillan
employees performed about 60 percent of the unloading
work, as they had before the strike.
It was sometimes necessary for the goods to be
warehoused at Race until delivery to Macmillan could be
made or, with outgoing shipments, until the shipments
could be picked up by the common carrier. The length of
time the goods were warehoused varied from I day to a
week, usually about a day. Some 10 percent of both
incoming and outgoing shipments were warehoused as long
as a week.
The picketing ceased at Race on July i, and at
Macmillan on July 2.
B. Discussion and Analysis
It is well established in Board and court precedent that
Section 8(bX4) of the Act was designed, inter alia, to isolate
primary labor disputes from disinterested employers. These
neutral or secondary employers should be free to conduct
their business without being involuntarily drawn into the
primary labor dispute. In situations where a union is
picketing the primary employer, this means that the
picketing, insofar as possible, must be conducted so as not
to involve neutral employers. However, it is possible for an
employer to lose its status as a neutral and it does so when
it performs "struck work"; i.e., work which would be
performed by employees of the struck employer except for
the strike. When a neutral employer undertakes to perform
such work, it may be said to have allied itself with the
primary employer, and thus have sacrificed its status as a
neutral. Further, having so allied itself with the primary
employer, it may also be picketed, and such picketing is not
proscribed by Section 8(b)(4) of the Act.
In applying these principles to the instant case, it is my
opinion that Race was performing struck work for
Macmillan and therefore the Union was privileged to
picket both Macmillan and Race.
The "struck work" in issue is the loading, unloading, and
warehousing 4 of materials. These functions were major
elements in the overall Macmillan operation. The record
discloses that 70 percent of the materials received by
Macmillan were reshipped without modification except for
some repacking. This work was basic to Macmillan's entire
operation. When the picketing began, Macmillan was
unable to perform these functions because the drivers of
the common carriers would not cross the Union's picket
line. In order to stay in operation, Macmillan leased
storage space and a warehouseman from Race, and moved
its goods with leased trucks and a lease driver. During the
strike, Race performed the work of loading, unloading, and
warehousing which would have been performed by em-
ployees at Macmillan had it not been for the picketing at
inconsequential because it was for comparably short periods of time. It was
an integral part of the service performed by Race for Macmillan.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Macmillan. In my opinion, Race was performing struck
work, and by so doing, lost its "ally" status. Having thus
involved itself in the primary employer's dispute, Race was
subject to being picketed by the Union without recourse to
the protection afforded by Section 8(b)(4) of the Act.
The General Counsel takes the position that the work is
not struck work since the work done by Race employees
was also done by Macmillan employees when the goods
arrived or left Macmillan via the lease truck driver. In
other words, that the duplication of work by a neutral, does
not constitute struck work. In my opinion, this is fallacious
reasoning and an overly literal interpretation of Section
8(b)(4) of the Act. The fact is that if it were not for
picketing at Macmillan, the work here in issue would have
been performed exclusively by Macmillan employees. It is
nonetheless struck work because the method devised to
accomplish the performance of the struck work requires a
duplication of work by Macmillan and Race.
In support of its position, the General Counsel relies
mainly on two cases, Western States Regional Council No.
3, International Woodworkers of America, etc. (Priest
Logging, Inc.) 137 NLRB 352 (1962), and Local 61,
International Chemical Workers Union (Sterling Drug, Inc.),
189 NLRB 60 (1971). However, I do not regard these as
controlling precedent. In Priest Logging, a load of logs was
unloaded by employees of a neutral for delivery to the
primary employer when the strike ended. However, it is
clear that the Board's conclusion in that case relied on the
fact that the neutral was not performing any task basic to
the normal production operation of the primary. In the
instant case, Race was clearly performing a function
normally done by Macmillan as a vital part of its business
operation.
The Sterling case would appear to be more analagous to
the facts of the instant case and were it not for the
subsequent Board authority cited and discussed below, a
strong argument could be made for the General Counsel's
position.
However, the position of the Board as to the issue in the
instant appears to have been defined by the Board in Local
804, Delivery and Warehouse Employees International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (B. F. Goodrich Company), 199 NLRB
General Counsel and Respondent filed motions to correct transcript.
No opposition was filed to either motion. Respondent's motion is hereby
granted. General Counsel's motion is also granted except as to numbered
corrections I 1, 22. 23. 29, 30. 31, and the last five words of number 8; i.e.,
"during the picketing at Race." As to these, the record herein and
a;ppropriate inferences are insufficient to support the motion.
H tlaving concluded that the picketing at Race does not violate the Act,
a;rguments concerning the legality of the picketing under the criteria
1167 (1972), and Local 375, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Irish Welding Supply Corporation), 204 NLRB 486
(1973). In Goodrich, common carriers refused to cross the
picket line at the Goodrich warehouse for pickups at the
Goodrich loading docks. Prior to the strike some of this
truckloading was done by Goodrich employees. To
circumvent this problem Goodrich arranged with the
trucker (Byrnes) to have the goods shipped by rail from the
rail docks at the Goodrich warehouse to a railroad siding
where the railroad cars where unloaded and loaded onto
Byrne's trucks by Byrnes employees. The Board concluded
that Byrnes' employees were performing struck work. The
Board was presented with much the same issue in the Irish
Welding case. In that case, prior to the strike, the primary
employer, Irish, dropped off empty gas cylinders with a
supplier and picked up full ones for distribution. When the
strike began, another employer, Bradox, performed this
function on behalf of Irish and Irish picked up and
dropped off at Bradox. Thereafter Bradox was picketed by
the Union. The work was held to be struck work. There is
little to distinguish the facts of this case from the facts of
the instant case. It is my view based on a full consideration
of applicable precedent, that the disputed work herein is
struck work within the meaning of the ally doctrine.
Having thus allied itself with Macmillan in this effort to
avoid the impact of the picketing at Macmillan, Race was
no longer a neutral employer and the Union did not violate
the Act by picketing the Race warehouse.
Accordingly, I shall recommend that the complaint
herein be dismissed.5
CONCLUSIONS OF LAW 6
Respondent has not engaged in a conduct violative of the
Act.
Upon the foregoing findings of fact and conclusions of
law, I hereby issue the following recommended:
ORDER 7
The complaint is dismissed in its entirety.
established in Sailors' Union of the Pacific, AFL (Moore Dry, Dock Company),
92 NLRB 547 (1950)., have been mooted.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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