Amarillo General Drivers, Warehousemen and Helpers

National Labor Relations Board - Board Decisions

Feb 4, 1959

122 N.L.R.B. 1275 (N.L.R.B. 1959)

AMARILLO GENERAL DRIVERS, WAREHOUSEMEN & HELPERS 1275
H. Addendum
The determinations above make it unnecessary to consider two additional ques-
tions: ( 1) whether the signs posted by the Company need be considered in resolving
the issues and (2) assuming that the Repondent 's picketing in Houston between
February 25 and March 29 with its original picket signs was invalid , whether the
picketing after the latter date with new signs was valid. I shall recommend that
both complaints be dismissed.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Company constitute trade, traffic, and commerce among
the several States within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. The allegations of the complaints that the Respondent engaged in unfair labor
practices have not been sustained.
[Recommendations omitted from publication.]
Amarillo General Drivers, Warehousemen and Helpers Local
Union No. 577, affiliated with International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America
and Crowe-Gulde Cement Company. Case No. 16-CC-87. Feb-
ruary 4, 1959
DECISION AND ORDER
On December 23, 1958, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
Charging Party, the General Counsel, and the Respondent filed ex-
ceptions to portions of the Intermediate Report. The General Coun-
sel and the Charging Party filed briefs in support of their exceptions
as well as in support of the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and briefs, and the entire record
in the case I and hereby adopts the findings, conclusions, and recom-
'By stipulation of the parties , the record made at the 10(1) injunction proceeding
instituted prior to the instant complaint case, constitutes the record before the Board.
122 NLRB No. 153.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations of the Trial Examiner, with the following modifications
and additions.
The Trial Examiner found, and we agree, that the Respondent
Union violated Section 8 (b) (4) (A) of the Act by picketing the
construction sites of neutral employers at times when delivery em-
ployees of Crowe-Gulde were delivering ready-mixed concrete. That
an object of Respondent Union's picketing at these projects was to
induce employees of the neutral employers to engage in work stop-
pages in order to bring about a cessation of business between various
purchasers of concrete and Crowe-Gulde, against whom Respondent
Union was conducting an economic strike, is amply substantiated by
the record. In finding this proscribed objective on the part of
Respondent Union, we rely, as did the Trial Examiner, on the fact
that Respondent Union picketed at the construction projects of neu-
tral employers despite the existence of a permanent place of business
maintained by Crowe-Guide where Respondent Union could and did
publicize its economic dispute and solicit the support of Crowe-
Gulde's nonstriking delivery employees who spent a substantial part
of their working day at the premises and who crossed Respondent
Union's picket line at the premises an average of 10 times a day .2
Moreover, there are additional grounds upon which we rely for
our conclusion that an object of Respondent Union's picketing was
to cause the employees of neutral employers 3 to cease work in order
to terminate the business relationship between Crowe-Gulde and its
customers. These grounds are as follows :
1. Respondent Union's pickets on several occasions patrolled the
entire frontage of the secondary situs rather than confining their
picketing to the proximity of Crowe-Gulde trucks.
2. On several occasions employees of secondary employers engaged
in work stoppages as a result of the picketing.
3. Respondent Union sent letters to a large group of local con-
tractors, among whom were customers of Crowe-Gulde, requesting
that they cease doing business with Crowe-Gulde.4
2 The fact that these employees spent a substantial part of their working day at
Crowe -Gulde's permanent place of business and crossed Respondent Union's picket line
with such frequency distinguishes the instant case from the factual situation which
obtained in General Drivers , Warehousemen and Helpers , Local 968 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, AFL, et at.
(Otis Massey Company, Ltd .), 109 NLRB 275 , denied enforcement , N.L.R.B. v. General
Drivers, Warehousemen and Helpers, Local 968 , International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, 225 F. 2d 205 ( C.A. 5). There, the
primary employer ' s employees whose strike support the union was soliciting rarely came
to the primary employer's place of business and thus could only be effectively solicited by
the union at times when they were at various construction projects. See N.L .R.B. v.
Truck Drivers c€ Helpers Local Union No. 728 et at. (National Trucking Co.), 228 F.
2d 791 (C.A. 5).
s Specifically , we have reference to the employees of the following neutral employers :
W. E. Wirtz, Claude Mathis, John T. Ellison, Floyd Richards , and A. E. Swift & Son.
a In this letter, which is set forth in the Intermediate Report, Respondent Union also
requested permission from the contractors for its pickets to enter construction sites in
order to picket immediately adjacent to Crowe-Gulde trucks . The letter further states
AMARILLO GENERAL DRIVERS, WAREHOUSEMEN & HELPERS 1277
We deem it significant in ascertaining whether Respondent Union's
object in picketing at the construction sites is interdicted by the Act
that on the two occasions when the opportunity presented itself,
Respondent Union's agents failed to dispel or mitigate the effect
which its picketing could reasonably be expected to have on the
employees of neutral employers.
On or about September 18, 1958, at a local union hall Respondent
Union's business agent, Mitchell, addressed a group which included
business agents of various building trades unions and cement finish-
ing employees of Contractor John T. Ellison. Mitchell explained
Respondent Union's economic dispute with Crowe-Gulde. When
Winters, the business agent of the cement finishers local stated that
it was up to the individual to decide whether or not to work,
Mitchell remained Silent.'
Realistically appraised, Mitchell's conduct at this meeting was an
attempt to solicit support in the form of work stoppages by em-
ployees of contractors on construction sites and thus unlawfully
widen the periphery of its economic dispute with Crowe-Gulde. The
logic of this conclusion is amply evidenced by what transpired the
very next day at the "Dliniven Circle job" when the cement finishers
employed by Ellison engaged in a work stoppage upon the arrival
of Crowe-Gulde's trucks and Respondent Union's pickets. It was
on this occasion that Respondent Union's assistant business agent
Ebelt approached a group of cement finishers and suggested that
they go to a union hall.
Thus, we find on the basis of the entire record 6 in this case that
by its picketing at the construction sites, Respondent Union sought
to induce and encourage employees of the picketed neutral employers
to refuse to perform services with the object of causing employers.
to cease doing business with Crowe-Gulde?
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Amarillo Gen-
eral Drivers, Warehousemen and Helpers Local Union No. 577, affili-
that Respondent Union does not seek to induce or encourage other employees to refuse to
perform work or handle goods. The self-serving nature of this document is apparent,
particularly when it is contrasted with the activities of Respondent Union's business
agent and assistant business agent described later in this decision.
6 This description of what transpired at this meeting is based solely on Mitchell's own
testimony.
e «'e do not find it necessary to pass upon the picketing incident at the Strickland
Transportation terminal since any finding of unlawful activity would be cumulative.
7 See Ready Mixed Concrete Company, 117 NLRB 1266 ; Campbell Coal Company, 116
NLRB 1020, enfd. 249 F. 2d 512 ( C.A., D.C.), cert. denied 355 U.S. 958 ; Ready Mixed
Concrete Company, 116 NLRB 461.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, representatives,
and agents, shall:
1. Cease and desist from inducing or encouraging employees of
any employer other than Crowe-Gulde Cement Company, to engage
in a strike or concerted refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or work
on goods, articles, or commodities or to perform services for their
respective employers where an object thereof is to force or require
any employer to cease doing business with Crowe-Gulde Cement
Company.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at the business office of Amarillo General Drivers, Ware-
housemen and Helpers Local Union No. 577, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America in Amarillo, Texas, and at all other places where
notices to their members are customarily posted, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, after
being duly signed by an official representative of the Respondent,
shall be posted by the Respondent immediately upon receipt thereof
and maintained by it for a period of 60 consecutive days thereafter
in conspicuous places where notices to members of the Respondent
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material . The Respondent's representative
shall also sign copies of the said notice which the Regional Director
shall submit for posting, the employers willing, at the premises of
Crowe-Gulde Cement Company, and the other employers found
herein to have been affected by the Respondent's unfair labor
practices e
(b) Notify the Regional Director for the Sixteenth Region in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
9 These employers are W. E. Wirtz, Claude Mathis, John T. Ellison, Floyd Richards,
and A. E. Swift & Son.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
AMARILLO GENERAL DRIVERS, WAREIJOUSEMEN & HELPERS 1279
WE WILL NOT induce or encourage employees of any employer
other than Crowe-Gulde Cement Company, to engage in a strike
or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work
on goods, articles, or commodities or to perform services for
their respective employers where an object thereof is to force
or require any employer to cease doing business with Crowe-
Gulde Cement Company.
AMARILLO GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL UNION No. 577, AFFILIATED
WITH INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge having been filed by Crowe-Gulde Cement Company, a complaint and
notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the
above-named Respondent Union, a hearing involving allegations of unfair labor
practices in violation of Section 8(b)(4)(A) of the National Labor Relations Act,
as amended (61 Stat. 136), herein called the Act, was held in Amarillo, Texas, on
November 18, 1958, before the duly designated Trial Examiner.
At the hearing all parties were represented, were afforded full opportunity to be
heard, to introduce evidence pertinent to the issues, to argue orally upon the
record and to file briefs. Argument was waived. A brief from each party has been
received and carefully considered.
At the opening of the hearing all parties stipulated that "in lieu of evidence for
the instant proceeding, there is introduced the entire transcript of the record made
in the 10 (1) proceeding in connection with the instant case, which proceeding
began on October 21, [and ended October 27] 1958, being styled Edwin A. Elliott
versus Teamsters Local 577, United States District Court, Northern District of
Texas, Amarillo Division, Docket No. 2696, before United States District Judge,
Honorable Joseph B. Dooley." It was also stipulated that "if called to testify in
the instant proceeding, the witnesses would be the same and would testify as they
testified in the 10 (1) proceeding just referred to."
In entering into this stipulation all parties specifically saved objections made to
evidence before the court, and renewed all such objections before the Trial
Examiner and the Board. The stipulation covered both oral and documentary
evidence. Said transcript was received by the Trial Examiner on December 8, 1958.
In conjunction with its answer the Respondent filed a motion to dismiss the
complaint on the ground that before its issuance certain sections of the Board's
Rules and Regulations had not been complied with. A substantial part of the
record before Judge Dooley is devoted to discussion, argument, and evidence on
this motion. In effect it was finally overruled by him. From certain facts adduced
and unrefuted claims voiced under oath by counsel for the Respondent, it is clear
that in some respects the cited Rules were not complied with to the letter. Indeed,
one of counsel for the Regional Director,' in urging opposition to the motion,
quoted the Eighth Circuit Court of Appeals as stating that:
the Board could relax its rules and regulations if no one was prejudiced by
the relaxation 2
1 Mr. James M. Fitzpatrick.
2 Counsel cited N.L.R.B. v. Monsanto Chemical Company, 205 F. 2d 763 (C.A. 8).
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such quotation by counsel amounting, in the opinion of the Trial Examiner, to
a tacit admission that the Rules were in fact departed from in some respects.
The Trial Examiner is not persuaded, however, that the irregularities claimed or
established actually deprived the Respondent of its rights to an extent of fatal
prejudice or of warranting dismissal. Whatever merit there may be, if any, in
counsel for the Union's protest regarding the procedure-as a matter of public
policy: this, of course, is for determination by the Board, and not the Trial Exam-
iner. The motion to dismiss is hereby overruled.
Upon the entire record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTY
Crowe-Gulde Cement Company is a Texas corporation, with principal office
and place of business in Amarillo, Texas, where it is engaged in the production
and sale of ready-mix concrete and concrete blocks. It does a gross business of
about $2,000,000 annually and during the past year sold and shipped in interstate
commerce to points outside the State of Texas products valued at more than
$50,000. During the same period it purchased and had shipped to it supplies and
materials from points outside the State of Texas valued at more than $200,000.
During the same period it sold and shipped products valued at more than $100,000
to concerns in Texas which are themselves engaged in interstate business. It
operates a plant in Amarillo from which it delivers mixed concrete and concrete
blocks to various customers at construction projects in and near Amarillo.
The Charging Party is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT UNION
Amarillo General Drivers , Warehousemen and Helpers Local Union No. 577,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , is a labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
In September 1958, the Charging Party was employing at its Amarillo plant
23 production and maintenance workers and about the same number of truck-
drivers. All such employees were, until September 5, 1958, covered by a con-
tractual agreement between the Respondent Union and the Charging Party.
In summary, operations of the Charging Party at the plant are as follows:
(1) All employees, including the drivers, punch time clocks in and out at the plant
each day; (2) all plant equipment is in one central area; and (3) batches of cement
are fully mixed here before being poured into trucks for delivery by drivers to
local customers.
The production and maintenance employees remain at the plant, or on plant
premises, all day. Drivers spend, on the average, between 3 and 4 hours of each
10-hour working day at the plant, and the rest of each day en route to and from
construction sites or at such sites. Drivers come in or go out of the plant premises
about 10 times a day.
A dispute arose between the Charging Party and the Respondent Union at the
expiration of their contract, apparently as to terms of a new agreement, and on
September 9 the Union began picketing the plant premises. General Counsel
raises no issues as to the legality of the strike or the nature of the picketing at
the plant itself.
On September 10 the Union sent the following letter to many construction con-
cerns in the area:
You are hereby advised of a labor dispute between this Union and Crowe-
Gulde Cement Co. On the ninth day of September, 1958, employees of
Crowe-Gulde went on strike to protect their wages and working conditions.
We are writing to acquaint you with these facts, for we hope and expect
that you will make no purchases from or do any business with Crowe-Gulde
Cement Co. until this labor dispute is settled. While this labor dispute exists,
we would appreciate it if you would divert your business to other suppliers.
In reaching your decision of whether to continue to purchase from Crowe-
Gulde Cement Co. you should consider how long this strike may last. The
strike is supported by all proper groups within the Teamsters organization and
AMARILLO GENERAL DRIVERS, WAREHOUSEMEN & HELPERS 1281
has the support of the employees involved. You may find that Crowe-Gulde
will be unable to give you normal service during the existence of this strike.
We have another request to make of you. Should Crowe-Gulde succeed
in hiring sufficient strike breakers, the union may wish to picket the Crowe-
Gulde operations on which these strike breakers perform work and/or where
other Crowe-Gulde employees may be working. Should you do any business
with Crowe-Guide which requires that such strike breakers or other Crowe-
Gulde employees perform work on any of your jobs or at your premises,
whether by unloading trucks or otherwise, the union wants the opportunity
to picket at such primary site of the dispute and as near the actual operation
of these Crowe-Gulde operations as possible.
In such event, our picket signs will indicate that the dispute is limited to
Crowe-Gulde only, and we will not seek to induce or encourage any other
employees to refuse to perform work or handle goods. Therefore, if the
strike breakers come on your job, we hereby ask permission for our pickets
to come within the premises controlled by you and picket directly adjacent
to the place where Crowe-Gulde employees are working. Should we not re-
ceive such permission within the day following receipt of this letter, we shall
assume you have refused this request. And in that event we may picket the
entrances of your job when Crowe-Gulde employees are working within the
job premises. Our only purpose will be as stated above; such picketing will
not be directed to your company or your employees nor to subcontractors
and their employees.
You may use this letter to advise your own employees or the employees
of any other contractor, except Crowe-Gulde employees, that we do not seek
to induce or encourage them to refuse to perform any work or to refuse to
handle Crowe-Gulde or any other materials.
We hope for your cooperation.
The credible testimony of Business Manager Maurice Mitchell establishes, and
it is found, that the Union waited until after receipt of the morning mail-be-
tween 10:30 and 11:30-on September 12 when, having received no reply from
any of the contractors to whom the above letter was sent, pickets were dispatched
from the union office to certain construction sites with specific instructions not to
picket at the construction site of any general constructor other than those to whom
the above letter was sent.
Union pickets thereupon appeared at a number of such construction sites, but
only at periods when Crowe-Gulde trucks and drivers, hired during the strike,
were at such premises, and reasonably close to entries used by such trucks .3
The complaint's major issue arises from the Union's picketing at premises other
than at the plant of the Charging Party, and is limited to the facts and purpose
(or object) of such picketing. There is no claim of violence, or mass picketing,
at any point.4
9 Although the point is not, in the opinion of the Trial Examiner, a critical one, he
believes that an official of the Charging Party, C. J. Guide, and General Contractor
W. E. Wirtz were in inadvertent error as to the date when pickets appeared at the latter's
jobsite. As a matter of record, only Guide fixed the date of September 10 ; Wirtz merely
adopted the date suggested by counsel for the Regional Director (LeRoy W. Mather).
Guide quoted the legend on the picket sign he saw and his picket sign, according to the
credible testimony of Mitchell, was not ordered from the printer until that date and was
not received until late on September 11. General Counsel (or counsel for the Regional
Director) did not challenge Mitchell's testimony that he did not receive the proper word-
ing for such sign from counsel for the Union until September 10, or that the invoice
from the printing concern showed that the order for such sign was not placed until
September 10.
* The complaint contends that the Respondent Union violated Section 8(b) (4) (A) of
the Act. The relevant section :
It shall be an unfair labor practice for a labor organization or its agents-to engage
in, or to induce or encourage the employees of any employer to engage in, a strike or
a concerted refusal in the course of their employment to use, manufacture, process,
transport, or otherwise handle work on any goods, articles, materials, or commodities
or to perform any services, where an object thereof is : forcing or requiring any
employer or . . . other person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor, or manufacturer,
or to cease doing business with any other person.
505395-59-vol. 12 2-8 2
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The conduct in issue
Since testimony regarding them is in small dispute, it appears unnecessary to
narrate in detail all incidents of picketing at sites other than that of the primary
dispute: the premises of the Charging Party. The following summary, based upon
testimony credited by the Trial Examiner, is therefore made.
At all sites and on all occasions noted below, a Respondent Union picket carried
a sign bearing the following legend:
CROWE-GULDE CEMENT COMPANY ON STRIKE
We are ONLY picketing CROWE-GULDE CEMENT
COMPANY and its employees working on this job site.
We are NOT picketing any other company
Teamsters, Chauffeurs, Warehousemen and Helpers
LOCAL UNION 577
Amarillo, Texas
Picketing occurred only at times when Crowe-Gulde equipment and drivers were
entering, leaving, or on the premises of construction sites.
Picketing was engaged in as follows:
(1) On or about September 12, 13, 15, 16, and 18 at the construction site of a
high school, the general contractor being W. E. Wirtz. On both September 15
and 16, while the pickets were present, 6 or 7 craftsmen, employed either by
Wirtz or his subcontractors, walked off the job.
(2) On or about September 12 at an ordnance plant construction site, where
Claude Mathis was the general contractor. No employee of any employer left
the site during the picketing.
(3) On or about September 19 at the main gate of the Amarillo Air Force Base,
where the Charging Party delivered cement both to the above-noted Claude Mathis
and the Amarillo Air Force Base maintenance department. There is no credible
evidence that any employee left the premises during the picketing.
(4) On or about September 16 and 17, at a construction site referred to in the
record as the "Duniven Circle job," where Floyd Richards was the general con-
tractor and John T. Ellison was a subcontractor handling the cement delivered by
the Charging Party. No employee left the job.5
(5) On or about September 19, at the same site, and near a delivery truck of the
Charging Party which had become stuck in the mud just before entering the
premises. No employee left the job while pickets were there; 6 three or four of
Ellison's employees, however, declined to enter the premises while the pickets
were present, and left before the pickets did?
(6) On or about September 16, at a filling station construction job located on
15th and Fillmore streets, where A. E. Swift & Son were the contractors laying
the cement. There is no evidence of any employee leaving the job.
(7) On an occasion of date uncertain 8 at a construction site at 1917 Phila-
delphia Street, where two or three truckdrivers for another cement company
5 Floyd Richards testified as to another incident of a like nature, concerning which the
Trial Examiner makes no finding. It is cumulative. Furthermore, no credible date is
established. Richards merely agreed with Attorney Mather's leading question fixing the
date as September 10. As found heretofore, on the basis of more credible testimony, no
picketing at secondary sites began until September 12.
6 The Trial Examiner is unable to accept as accurate the testimony of C. J. Guide that
he saw Ellison employees go off the job that day. It finds no support-but on the con-
trary refutation-in the testimony of contractor Ellison and two of Ellison's employees
whom Guide said he saw leave the job, all of whom were also witnesses for General
Counsel.
7 Counsel Mather labored long and zealously, mainly by use of plainly leading questions,
to elicit testimony from three of his witnesses (Whitlow, George, and Cherry), who were
Ellison's employees, in an effort to establish that something was said or done at a local
Trade Council meeting on September 18 which caused these employees not to cross the
picket line the next day. The Trial Examiner agrees with Judge Dooley's comments upon
this testimony-at one point characterized by him as "a lot of confusion" and in his
final remarks as "about as muddled as It could possibly be." The Trial Examiner is
unable to find, from the testimony, that the Respondent Union was responsible for any
statement or occurrence at the September 18 Trades Council meeting which bears upon
the issues in this case.
8 Witness Bowers attempted to fix no date. Mather said it was "sometime between
September 9 and 24."
AMARILLO GENERAL DRIVERS, WAREHOUSEMEN & HELPERS 1283
(Panhandle Concrete) were at work. There is no evidence that any employee left
the job.
(8) On or about September 15 at a school construction job where the above-
identified Ellison was the cement subcontractor, for Southwestern Brick-laying
Company. No employee left the job.9
C. Conclusions
The Trial Examiner considers that his conclusions in this case must be governed
by the Board's decision in Ready Mixed Concrete Company, 117 NLRB 1266, a
case heard by him. The Board said, in part:
The Trial Examiner found, and we agree, that this picketing was per se
violative of Section 8(b)(4)(A). . . . because Ready Mixed and Reimars-
Kaufman, the primary employers, each had one or more fixed places of
business in the area which could be, and in fact were, picketed so as to expose
all of the employees of the primary employers, for a substantial part of their
working day, to any message sought to be conveyed by the picketing.
Except for the detail of the Union's letter of September 10 to general con-
tractors the circumstances of this case are substantially the same as those found
by the Trial Examiner in the above-cited case. And this letter, in the opinion of
the Trial Examiner, in no way relieved the Respondent Union from its account-
ability under the law as interpreted by the Board.
It seems simple and plain reasoning, requiring no array of many words, to
conclude, as the Trial Examiner does, that "an object" of the picketing at the
neutral sites was to seek cessation of business between various employers and the
Charging Party, and that attainment of this object was sought by means of a
picket sign which the Union "hoped" and intended would induce employees of such
neutral employers to cease handling the Charging Party's cement. The purpose
of the letter and the picketing was identical. Action thereafter taken to reach an
already expressed "hope" must, absent convincing rebuttal, be considered as having
as an "object" the attainment of that hope: in this instance cessation of customer
business with the Charging Party.
Under circumstances described above, it may not be held that the only object
of picketing at such sites was to reach the drivers of the Charging Party. These
drivers, passing in and out of the primary premises 10 times a day, undoubtedly
saw-and clearly had opportunity to see-notice of the strike and the dispute far
more often than employees who remained on the premises all day.
The legal conclusion of violation follows from the fact of the events, the Board
seems to have clearly said, and if the picketing union is to rebut such conclusion,
the burden is upon it to bring in substantial evidence to the contrary. For ex-
ample, the union would have to show in some fashion, when picketing away from
premises of the primary employer, that it did not want that employer's customers
to cease doing business with him, and did not want customers' employees to cease
working to cause such cessation. For, as Judge Wyzanski, of the U.S. District
Court, District of Massachusetts, has said: "All picketing . . . has his indirect,
general intent and secondary effect." 10
In short, the Trial Examiner concludes and find that by picketing at construction
sites of neutral employers, as described in section III, B, above, the Respondent
Union violated Section 8(b)(4)(A) of the Act.
9 There Is testimony concerning another similar Incident on October 8, not at a con-
struction site but at the terminal of Strickland Transportation, a freight business which
handles freight for the Charging Party. This testimony, however, was not brought for-
ward, although available, as a part of General Counsel's case-in-chief, but was adduced by
the Charging Party after both General Counsel and the Respondent Union had rested.
The court overruled the Union's objection to the receipt of such testimony as not proper
rebuttal and not properly offered by the Charging Party. The Trial Examiner believes
that there is merit in the objection to such testimony when, as now, it Is in effect offered
at a Board proceeding. The testimony, however, if the Charging Party wishes, will be
considered as an offer of proof by it, and is hereby rejected. The transcript, at page 446,
records the fact that after informing the court that he had a witness subpenaed and
present, In reference to the Strickland Transportation Company, Attorney Mather stated:
"His testimony would not relate to a construction site matter and is something that
came to my attention after I arrived here on October 13th." Without calling this witness,
Mather immediately rested.
10 Alpert, etc. v. United Steelworkers of America, AFL-CIO, 141 F. Supp. 447
(D.C. Mass.).
1284 DECISIO1419 OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union set forth in section III, above , occurring
in connection with the operations of the Charging Party in section I, above, have
a close, intimate , and substantial relation to trade , traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing,
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged in activities violative of
Section 8(b)(4)(A) of the Act, the Trial Examiner will recommend that it cease
and desist therefrom, and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Crowe-Gulde Cement Company is engaged in commerce within themeaning
of the Act.
2. Amarillo General Drivers, Warehousemen and Helpers Local Union No. 577,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2(5}
of the Act.
3. By inducing and encouraging employees of employers , including those listed
above in section III, B , to engage in a concerted refusal in the course of their
employment to use, handle , or work upon products of Crowe -Gulde Cement Com-
pany, and/or to perform services for their respective employers , with an object of
forcing or requiring such employers to cease doing business with Crowe-Gulde
Cement Company, the Respondent Union has engaged in unfair labor practices
within the meaning of Section 8(a)(4)(A) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Sutherland Paper Company and Amalgamated Lithographers
of America, Petitioner. Case No. 7-RC--3717.1 February 6, 1959
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Iris Meyer, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
Jenkins].
'On September 10, 1958, the Board granted the request of International Printing
Pressmen and Assistants Union of North America , AFL-CIO, to withdraw its petition
in Case No . 7-RC-3796 , which had been consolidated with this case.
2 For the reasons stated below , the motions to dismiss of the Employer and of Local
1010, United Papermakers and Paperworkers , AFL-CIO, the Intervenor , are denied.
Their requests for oral argument are likewise denied because the record and briefs
adequately state the issues and their positions.
122 NLRB No. 147.