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Today’s Labor Updates, August 22, 2018

Top Five Labor Law Developments for July 2018

Article By: Philip B. Rosen Jonathan J. Spitz

  1. Business lobbyists reportedly are urging the Trump Administration to not re-nominate National Labor Relations Board (NLRB) Member Mark Gaston Pearce (D) for a third term. Pearce’s term at the five-member Board is scheduled to expire on August 27, 2018. Pearce has drawn the ire of business groups for what many believe to be an anti-business approach on many issues before the Board. Pearce would like to be re-nominated and remain on the Board. It is unclear whether Congressional Democrats will pressure the Administration to re-nominate Pearce and whether Pearce would have the votes to be reconfirmed if he is re-nominated.
  2. The Board’s decision-making processes are going through significant changes. Memorandum ICG 18-06 from Associate to the NLRB General Counsel Beth Tursell outlines plans to centralize representation case decision writing, to streamline the Division of Advice’s review of unfair labor practice charges, and to encourage Board Regional Directors to delegate decision-making authority to supervisors, including for approving dismissals, withdrawals, and some settlements. Additionally, the Memorandum announces establishment of new committees within each NLRB region that will consider certain pre-election disputes, research election issues, and draft orders for review by regional directors. This follows NLRB General Counsel Peter Robb’s earlier announcement to regional directors that he hopes to consolidate the Board’s regional offices. That proposal was met by resistance from many Board staff members.
  3. The U.S. Department of Labor’s “persuader” rule was rescinded on July 17. The regulation would have expanded reporting by consultants working on behalf of employers engaged in union election campaigns. On March 24, 2016, the Department of Labor (DOL) had published its final rule relating to “persuader” activity under the Labor-Management Reporting and Disclosure Act (LMRDA). Under the DOL’s proposed interpretation, employers/clients, as well as consultants/attorneys, would have been required to report to the DOL all arrangements in which an “object” (directly or indirectly) of the services provided by the consultant/attorney was to persuade employees about the manner of exercising the employees’ “right to organize and bargain collectively through representatives of their own choosing” under federal labor law.
  4. The NLRB is reconsidering employees’ right to use their employer’s email system for union organizing and other protected activity. On August 1, 2018, the NLRB invited the public to file briefs on whether the Board should overrule Purple Communications, Inc., 361 NLRB 1050 (2014), in which the Board held employees who have been given access to their employer’s email system for work-related purposes must be permitted to use that system, on non-working time, for National Labor Relations Act (NLRA) Section 7 communications, unless the employer can demonstrate that special circumstances necessary to maintain production or discipline justify restricting that right. The Board in Purple Communications had overruled Register Guard, 351 NLRB 1110 (2007), where it held employers could lawfully restrict employees’ non-work email use as long as they do so in a non-discriminatory manner. In its invitation for briefing, the Board asked the public: 1) whether it should adhere to, modify, or overrule Purple Communications; 2) what standard should replace Purple Communications, if overruled; 3) if Register Guard is revived, what exceptions should be maintained for employee use of email, if any; and 4) how electronic communication systems other than email should be treated, whether or not Purple Communications is overruled.
  5. An employer did not violate the Act when it terminated an employee who violated the employer’s policy against sharing certain confidential documents on social media, the Board’s Division of Advice has found. Kumho Tires, 10-CA-208153 (Div. of Advice, June 11, 2018, released July 2018). The employee had posted on social media a photograph of another employee’s bonus request form. The employer argued that the employee violated the employer’s social media policy against sharing “internal reports, policies, procedures, or other internal business-related confidential communications.” The Division of Advice found the work rule was lawful under The Boeing Company, 365 NLRB No. 154 (Dec. 15, 2017), because employees would be unlikely to interpret the rule as restricting the sharing of information lawfully in employees’ possession. The Division also found the rule was lawful as applied in the termination, because the employee was not authorized to have another employee’s bonus request form.

Unlikely Ally: Employer Makes a Meal Out of CBA Waiver

08/16/2018 Attorneys: Leo Q. LiDavid D. Kadue

Seyfarth Synopsis: A collective bargaining agreement, to permissibly waive a negotiable statutory right, must do so in a clear and unmistakable manner, by mentioning either the statutory protection being waived or the statute itself. The Court of Appeal has sensibly applied that standard in upholding a CBA’s waiver of a first meal period for shifts not exceeding six hours. 

The Facts

The California Labor Code states that an employee working more than five hours in a shift is entitled to a meal period unless the employee and employer mutually waive the requirement to provide a first meal period for a shift that does not exceed six hours. Thus, while a meal-period is a statutory right, and while statutory rights generally are unwaivable, the statute itself makes a first meal period waivable within the circumstances just specified.

Kristina Ehret and Elmer Gillett were cashiers at a WinCo Foods store. WinCo’s hourly employees belonged to a collective bargaining unit represented by an employee association. Gillett, as chair of the association, negotiated a collective bargaining agreement with WinCo. The CBA stated that “when a work period of not more than 6 hours will complete a day’s work, a meal period is not required.”

After the employees sued WinCo for failing to provide meal periods, WinCo, represented by Seyfarth Shaw, moved for summary judgment, arguing that the CBA had waived the employees’ statutory right to a meal period. The trial court granted WinCo’s motion, and the employees appealed.

The Appellate Court Decision

On appeal, the employees argued that the CBA failed to qualify as a valid waiver of statutory rights because its language was not “clear and unmistakable.” The Court of Appeal rejected the argument and affirmed the trial court’s decision. Ehret v. Winco Foods, LLC.

The Court of Appeal began its analysis by confirming that an employee—and a union on behalf of represented employees—may lawfully waive negotiable statutory rights. (The Court of Appeal expressed doubt, however, that employees could ever waive nonnegotiable statutory rights.) But any such waiver of a negotiable statutory right in a CBA must be “clear and unmistakable,” meaning that the CBA must do more than speak in general language: the language must specify either the statutory protection being waived or the statute itself.

The employees argued that the CBA flunked this test for a valid waiver because the CBA did not use the word “waive,” and did not cite the statute addressing meal periods. The Court of Appeal rightly rejected these hypertechnical arguments. Even though the CBA did not cite any statute addressing meal periods, the CBA—by saying when “a meal period is not required”—did use language that was “flatly irreconcilable” with the statutory right, and in a context in which the statute, by its terms, made that right negotiable.

What Ehret Means For Employers

Although Ehret addressed only the enforceability of a meal period waiver in the context of a CBA, its analysis is useful generally. California famously protects employees’ rights. One right so protected, however, is the employee’s right to waive negotiable statutory protections. One such protection is a meal period—subject to negotiation under the limited circumstances existing here. That protection can be waived either individually or, as here, through collective bargaining. (Another negotiable right, subject to waiver only through collective bargaining, is the right to receive vested vacation pay upon termination of employment, under Labor Code section 227.3.)

Ehret champions reason and common sense by making it clear that a waiver, to be valid, need not use magic words such as “waive” and need not legalistically cite the statutory provision at issue. Language suffices to accomplish a waiver if the language simply makes clear that the employee is giving up a negotiable right that the statute, absent a waiver, would protect.

USW rejects U.S. Steel’s proposal for variable bonuses instead of raises

Joseph S. Pete joseph.pete@nwi.com, 219-933-3316

Aug 20, 2018 Updated Aug 21, 2018

The United Steelworkers union rejected a proposal by U.S. Steel for variable bonuses instead of pay raises.

Steelworkers at Gary Works, East Chicago Tin, the Midwest Plant in Portage and other U.S. Steel mills around the country haven’t seen any increase in pay in six years, after the union conceded to keep wages flat during a serious downturn in the industry in the last round of contract talks.

“We made it clear to the company that wage increases must be part of our new agreement and that we aren’t interested in the types of variable bonuses schemes that the company has been proposing in place of hourly increases,” the United Steelworkers union said in an update to its members. “We simply can’t rely on hypothetical income when our families have ever-increasing living expenses that we have to meet.”

The union points to U.S. Steel’s surging profitability now that steel prices have climbed over $900 a ton. The steelmaker announced last week it would invest at least $750 million in modernizing Gary Works over the next years, to ensure its productive enough to capitalize off the higher steel prices.

“We already agreed to go three years without an hourly wage increase,” the union said in an update to members. “We know that made sense in 2015, but these are very different times. Even while our wages were frozen, U.S. Steel management revised their compensation programs and gave themselves bonuses while the company lost money. Now that the company is in a position to do well in the coming years, we must make sure that workers also share in that prosperity. We’ll need you to stand with us to make that happen.”

The contract talks in Pittsburgh have been focusing increasingly on wages and benefits.

“Local issue discussions are wrapping up,” USW said in an update to members. “The company has been slow to move in many cases, but we are making progress in some areas.”

Despite boom times in the highly cyclical steel industry, U.S. Steel and ArcelorMittal have been asking for concessions, pointing to long-term competitiveness.

“U.S. Steel gave us a proposal that would make health care costs burdensome for current retirees and nearly impossible for future retirees,” USW said in an update to members. “We have rejected that proposal in its entirety.”

Summary of NLRB Decisions for Week of August 6 – 10, 2018

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Costa Mesa Cars, Inc. d/b/a Autonation Honda Costa Mesa f/k/a Power Honda Costa Mesa and Autonation, Inc.  (21-CA-123072; 366 NLRB No. 154)  Costa Mesa, CA, August 6, 2018.

The Board found that in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir. 2015), the complaint must be dismissed.  The Administrative Law Judge had found that the Respondents’ maintenance and enforcement of an arbitration agreement that seeks to have employees waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil.

Charge filed by an individual.  Administrative Law Judge Eleanor Laws issued her decision on March 14, 2016.  Members Pearce, McFerran, and Kaplan participated.

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WestRock Services, Inc.  (10-CA-195617; 366 NLRB No. 157)  Chattanooga, TN, August 6, 2018.

The Board denied the Respondent’s Motion to Dismiss.  The Board found that the Supreme Court’s reasoning in Lucia v. SEC, 585 U.S. ___, 138 S.Ct. 2044 (2018), supports a determination that Board administrative law judges are inferior officers and therefore must be appointed in accordance with the Appointments Clause of the United States Constitution, i.e., by the President, the courts, or the Head of Department.  However, unlike the Securities and Exchange Commission judges in Lucia, all Board administrative law judges are appointed by the full Board as the Head of Department, not by other Agency staff members.  Thus, the Board concluded that their appointments satisfy constitutional requirements.

Charge filed by Graphic Communications Conference of the International Brotherhood of Teamsters, Local 197-M.  Chairman Ring and Members Pearce, McFerran, Kaplan, and Emanuel participated.

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Muy Pizza Southeast, LLC  (15-CA-174267; 366 NLRB No. 158)  Pensacola, FL, August 6, 2018.

The Board found that in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 183 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint must be dismissed.  The Administrative Law Judge  had found that the Respondent’s maintenance of its Agreement to Arbitrate, that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), and Murphy Oil.

Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on December 15, 2016.  Chairman Ring and Members Pearce and Emanuel participated.

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UPMC, UPMC Presbyterian Shadyside, d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital  (06-CA-171117, et al.; 366 NLRB No. 142)  Pittsburgh, PA, August 6, 2018.

The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondents violated Section 8(a)(1) by maintaining and enforcing a provision in the Solicitation and Distribution policy that prohibits off-duty employees from soliciting or being solicited; and by maintaining and enforcing an unwritten rule prohibiting employees from distributing nonwork materials in nonwork areas during nonworking time.  The Board also affirmed the judge’s conclusion that Respondent UPMC Children’s Hospital violated Section 8(a)(1) by threatening an employee with unspecified reprisals for engaging in union activities in December 2015 and by giving an employee the impression that employees’ union activities were under surveillance.

A majority (Chairman Ring and Member Pearce) affirmed the judge’s conclusion that Respondent UPMC Children’s Hospital violated Section 8(a)(1) by threatening an employee with unspecified reprisals for engaging in union activities in October 2015.  Member Emanuel found it unnecessary to pass on the judge’s conclusion concerning the October 2015 threats.

Charges filed by SEIU Healthcare Pennsylvania, CTW, CLC.  Administrative Law Judge Thomas M. Randazzo issued his decision on January 18, 2018.  Chairman Ring and Members Pearce and Emanuel participated.

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Rim Hospitality  (21-CA-137250; 366 NLRB No. 155)  Newport Beach, CA, August 8, 2018.

The Board found that in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 183 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint must be dismissed.  The Administrative Law Judge had found that the Respondent’s maintenance of its “Agreement for Binding Arbitration,” that requires employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial, violated the Act under the Board’s decisions in D. R. Horton, 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344 (5th Cir. 2013), andMurphy Oil.

Charge filed by an individual.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on June 15, 2016.  Members Pearce, McFerran, and Kaplan participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Publi-Inversiones de Puerto Rico, d/b/a El Vocero de Puerto Rico  (12-RD-221192)  San Juan, PR, August 8, 2018.  The Board denied the Petitioner’s and Employer’s Requests for Review of the Regional Director’s Decision to Dismiss and Corrected Decision to Dismiss as they raised no substantial issues warranting review.  The Board dismissed the Petitioner’s request for extraordinary relief as moot.  Petitioner—an individual.  Union—Union de Periodistas, Artes Grafica y Ramas Anexas, Local 33225.  Chairman Ring and Members McFerran and Kaplan participated.

USF Holland, Inc.  (18-RD-218994)  Milwaukee, WI, August 8, 2018.  The Board denied the Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the instant petition as it raised no substantial issues warranting review.  The Regional Director found that under Lamons Gasket, 357 NLRB 739 (2011), the minimum reasonable time for bargaining required for a voluntary recognition bar had not elapsed.  In agreeing with the decision to deny review, Member Kaplan noted that he would consider revisiting the Board’s voluntary recognition bar policy in a future appropriate matter.  Petitioner—an individual.  Union—General Teamsters Local No. 200.  Members Pearce, McFerran, and Kaplan participated.

Technica LLC  (28-RD-218554)  Fort Bliss, TX, August 9, 2018.  The Board granted the Petitioner’s Request for Review of the Regional Director’s Order Vacating Hearing and Dismissing Decertification Petition on the ground that it raised a substantial issue warranting review.  The Board found that the Regional Director failed to apply the proper test to determine whether a reasonable amount of time for post-settlement bargaining had elapsed when the instant petition was filed, and because his dismissal letter did not contain facts sufficient to make a determination under the correct test, the Board reinstated the petition and remanded this case to the Regional Director for further consideration of this issue.  Petitioner—an individual.  Union—International Union of Operating Engineers Local 351.  Chairman Ring and Members McFerran and Emanuel participated.

C Cases

Briad Restaurant Group, LLC  (22-CA-165746)  Livingston, NJ, August 6, 2018.  The Board rescinded its prior Order granting the parties’ joint motion to transfer this proceeding directly to the Board for a decision based on the stipulated record.  The complaint alleged a violation based on Board precedent finding unlawful the maintenance and enforcement of arbitration agreements requiring employees to waive the right to file or participate in class or collective actions in all forums.  In light of the recent Supreme Court decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), which held that such arbitration agreements do not violate the Act, the Board denied the parties’ joint motion without prejudice.  Charge filed by Outten & Golden LLP.

RMH Franchise Corporation d/b/a Applebee’s Restaurant  (28-CA-145185)  Phoenix, AZ, August 7, 2018.  The Board rescinded its prior Order granting the parties’ joint motion to transfer this proceeding directly to the Board for a decision based on the stipulated record.  The complaint alleged violations based on Board precedent finding unlawful the maintenance of arbitration agreements requiring employees to waive the right to file or participate in class or collective actions in all forums.  In light of the recent Supreme Court decision in Epic Systems Corp. v. Lewis, 584 U.S. __, 138 S. Ct. 1612 (2018), which held that such arbitration agreements do not violate the Act, the Board denied the parties’ joint motion without prejudice.  Charge filed by an individual.

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Appellate Court Decisions

Hospital of Barstow, Inc., d/b/a Barstow Community Hospital, Board Case No. 31-CA-090049 (reported at 364 NLRB No. 52) (D.C. Cir. decided July 31, 2018)

In a published opinion, the Court enforced the Board’s supplemental order issued against this California hospital for violating Section 8(a)(5) and (1) by unlawfully declaring impasse and refusing to bargain with its nurses’ representative, the California Nurses Association/National Nurses Organizing Committee, after the Union prevailed in a May 2012 election conducted under the terms of a consent election agreement.

In its supplemental decision, the Board (then-Chairman Pearce and Members Hirozawa and McFerran) responded to the Court’s earlier opinion remanding the case to the Board to address whether the Act “enables a Regional Director to conduct elections under a consent election agreement when there is no Board quorum,” Hospital of Barstow, Inc. v. NLRB, 820 F.3d 440, 444 (D.C. Cir. 2016) (remanding 361 NLRB No. 34), and to take into account the Court’s decisions in UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 2015), and SSC Mystic Operating Co. v. NLRB, 801 F.3d 302 (D.C. Cir. 2015).  In those two cases, the Court upheld the Board’s determination that Regional Directors retained such authority, but in the different context of stipulated election agreements, which provide for direct Board review, unlike consent election agreements, under which the parties agree that the Regional Director’s decision will be final.

The Board answered the question in the affirmative, interpreting the Act to find that the Regional Director, notwithstanding the lapse of a Board quorum, retained the authority to process the representation proceeding and certify the Union pursuant to the parties’ consent election agreement.  Among other things, the Board explained that, in consent elections, “parties agree in advance to forego direct Board review,” and “it is the parties’ agreement, not the Board’s delegation, that gives the Regional Director’s decision finality.”  Thus, the Board likened the parties’ actions in executing a consent election agreement to the choice parties make in opting not to seek Board review in a stipulated election agreement.  In both instances, the Board explained, the Regional Director’s actions are only final by “acquiescence of the parties.”

On review, the Court upheld the Board’s determination, deferring to it as a reasonable interpretation of the Act, and finding it consistent with the Court’s decisions in UC Health and SSC Mystic.  In accepting the Board’s reasoning, which the Court characterized generally as finding “no salient difference” between the two types of agreements, the Court stated that the Board had shown “in both situations,” that the delegation of authority to the Regional Director “does not inherently involve authority to render final Board decisions.”  Rather, it stated, in both situations, “the parties can choose to give a Regional Director the final say by opting against Board review.”  The Court thus held that the Board permissibly concluded that the Regional Director, in either circumstance, does not “stand in the Board’s place,” but instead “exercises delegated, non-final authority, even though her decisions can be the final word if the parties choose to forgo Board review.”  On the merits, the Court found none of the hospital’s arguments persuasive, and enforced the Board’s order.

The Court’s decision is here.

Advanced Life Systems, Inc., Board Case No. 19-CA-096899 (reported at 364 NLRB No. 117) (D.C. Cir. decided August 3, 2018)

In a published opinion, the Court (Circuit Judge Millett, joined by Senior Circuit Judge Sentelle) upheld the Board’s findings that two Employer statements violated Section 8(a)(1), but rejected the Board’s findings that the Employer acted unlawfully by discontinuing discretionary pay increases and holiday cash gifts in the aftermath of an election in which employees opted for union representation.

As a threshold matter, the Court found that it lacked jurisdiction to consider the Employer’s argument that the underlying complaint was invalidly issued because the Employer had not raised the issue to the Board.

The Court then enforced the Board’s order with respect to its findings that the Employer’s majority owner unlawfully told employees both before and after the election that he would not be able to grant wage increases if the Union got in; the Employer had not challenged the Board’s finding with respect to the pre-election statement, and the Court found that the Board’s determination with respect to the post-election statement was supported by substantial evidence.

In denying enforcement with respect to the Board’s finding that the Employer violated Section 8(a)(3) by temporarily discontinuing its irregular pay increases, the Court found that the raises were “irregular in their timing and unsystematic in their amounts . . . on this record, the only discernible constant is the inconstancy of both the timing and amount of pay increases.”  In the Court’s view, because the Employer’s pay increases were “in no sense automatic, but [] informed by a large measure of discretion,” the Employer could not have lawfully granted increases unilaterally once it was obligated to bargain with the Union, and in that context the Employer’s Section 8(a)(1) statements pertaining to raises were “too thin a reed on which to hang a finding of anti-union animus.”

Turning to the refusal to give Christmas gifts to employees, the Court found that “[a]s with the pay increases, the record in this case lacks substantial evidence of a long pattern of regularized Christmas payments … the testimony concerning Christmas gifts was far too sparse, inconsistent, and conflicting to establish any reliable pattern of payments, let alone one tied to the employees’ remuneration.”

The Court also faulted the Board for having “glossed over the critical and undisputed fact that the [company owners] paid for the Christmas gifts entirely out of their own pockets, not out of company funds.   Based on those findings, the Court denied enforcement with respect to the Board’s finding that the Employer violated Section 8(a)(5) and (3) by discontinuing cash gifts at the holidays.

The Court’s decision is here.

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Administrative Law Judge Decisions

Westrock Services, Inc.  (10-CA-195617; JD-50-18)  Chattanooga, TN.  Administrative Law Judge Robert A. Ringler issued his decision on August 6, 2018.  Charge filed by Graphic Communications Conference of the International Brotherhood of Teamsters, Local 197-M.

Everport Terminal Services, Inc. (32-CA-172286 and 32-CB-172414; JD-48-18) Oakland, CA, August 8, 2018.  Errata to the July 27, 2018 decision of Administrative Law Judge Sharon Levinson Steckler.  Errata   Amended Decision.

Constellation Brands, U.S. Operations, Inc. d/b/a Woodbridge Winery  (32-CA-186238 and 32-CA-186265; JD(SF)-19-18)  Ocampo, CA.  Administrative Law Judge Ariel L. Sotolongo issued his decision on August 10, 2018.  Charges filed by Cannery, Warehousemen, Food Processors, Drivers and Helpers, Local Union No. 601, International Brotherhood of Teamsters.

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