Operations In Fiscal Year 1988 - National Labor Relations Board

112 Fifty-Third Annual Report of the National Labor Relations Boardagreement prohibited by Section 8(e). The Board concluded thatthe union's filing of a grievance . and a Section 301 lawsuit tocompel Union representation of the owner-operators was not unlawful,even though the owner-operators were found to be independentcontractors and not statutory employees.The union's bargaining agreement had covered Ida Cal's truckdrivingemployees. Ida Cal also had owner-operators, who theunion claimed were employees and should be covered by theparties' contract. The union pursued its claim by filing an 8(a)(5)charge alleging that Ida Cal refused to apply the terms of theparties' extant contract to the owner-operators. The Regional Directordismissed that charge on the ground that the owner-operatorswere independent contractors, and the General Counseldenied the union's appeal of that dismissal. The union also filed agrievance seeking a determination that the owner-operators werecovered by the contract, and demanded arbitration. The employerrejected the union's grievance and refused to go to arbitration.In addition, the union filed a Section 301 suit, which the courtheld in abeyance pending the Board's decision in this case.Relying on its two decisions in Warwick Caterers,'" the Boardconcluded that the union had a legitimate object in seeking a resolutionof the owner-operators' status through the grievance-arbitrationand the Section 301 proceedings. In this regard, it notedthat:Although the Respondent did take the actions to compel representationof Ida Cal's owner-operators, there had been no adjudicatorydetermination at that time, or at the time of thecomplaint or the hearing, that the owner-operators were independentcontractors. Furthermore, the Respondent's actionswere consistent with a goal of obtaining an adjudication,through arbitration or court action, of the status of the owneroperators;the Respondent did not strike or picket. In addition,the Respondent's contention that the owner-operators are statutoryemployees was not unreasonable.The Board therefore distinguished its decision in Emery AirFreight, 139 in which it held that the union's grievance filing violatedthe Act because it was not intended to preserve existingbargaining unit jobs, a legitimate work-preservation object, becausethe union never represented the employees who did thework.139 Hotel & Restaurant Employees Local 274 (Warwick Caterers), 282 NLRB 939 (1987), supplementing269 NLRB 482 (1984).' 39 Teamsters Local 705 (Emery Air Freight), 278 NLRB 1303 (1986), enf. denied in relevant partand remanded 820 F.2d 448 (D.C. Cir. 1987).