Commission House Drivers

National Labor Relations Board - Board Decisions

Jun 13, 1957

118 N.L.R.B. 130 (N.L.R.B. 1957)

"130 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
Commission House Drivers, Helpers, and Employees Local No.
400, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , AFL-CIO, and Michael
Rini and William Sauerheimer, its agents ; Retail Food Clerks
Local No. 880, Retail Clerks International Association, AFL-
CIO, and Norman Rogers , its agent ; Amalgamated Meat Cut-
ters & Butcher Workmen of North America, Local No. 427,
AFL-CIO, and Frank Cimino, business agent and Euclid Foods,
Incorporated, doing business as Bondi 's Mother Hubbard Mar-
ket. Case No. 8-CC-If1. June 13,1957
DECISION AND ORDER
On August 22, 1956, Trial Examiner William F. Scharnikow issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmati ' action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report and supporting briefs. The
Board has reviewed the rulings of the Trial Examiner made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, as modified hereinafter.'
1. Although the business of some of the secondary employers in-
volved here, standing alone or in conjunction with the business of
the primary employer, did not meet the minimum requirements, the
Trial Examiner asserted jurisdiction here on the basis of the aggregate
business of all the secondary employers found affected by the Re-
spondents' unfair labor practices.. We agree with the Trial Examiner's
conclusion that jurisdiction should be asserted. However, in asserting
jurisdiction with respect to all the unfair labor practices found, we
rely only on the fact that all the secondary employers were victims of
a pattern of unfair labor practices and that the business of one or more
of the secondary employers, each standing alone, meets the jurisdic-
tional requirements.
Our dissenting colleague would have us revert to the rule of the
Jamestown Builders Exchange case, 93 NLRB 386, which the Board
abandoned in the McAllister Transfer case, 110 NLRB 1769. In the
latter case, the Board adopted the view of dissenting Member Peterson
in the Lincoln Beer Distributors case, 106 NLRB 405, i. e., that it is not
i The Respondents ' request for oral argument is hereby denied as the record , briefs, and
the exceptions adequately present the issues and the positions of the parties.
118 NLRB No. IT.
COMMISSION HOUSE DRIVERS 131
the particular business between the primary employer and the second-
ary employer at the location affected, but rather the entire business of
the secondary employer at that location that governs in applying the
Board's jurisdictional standards in secondary boycott situations.
This approach was consistent with and gave meaning to the Board's
often expressed concern that innocent third parties not be injured
by secondary boycotts. In disagreement with our dissenting colleague,
we see no warrant for lessening that protection in a case such as this
where at least one of several victims of secondary boycott action meets
the Board's jurisdictional standards. The power of the Board thus
having been invoked to deal with a pattern of conduct affecting enter-
prises both within and without the jurisdictional standards, it seems.
to us only reasonable and effectuating the purposes of the Act to give
the broadest scope to the remedy we apply.
Nor do we agree with our dissenting colleague that either the rule
of the McAllister case or the rule laid down today in the present case
is inconsistent with Board policy in the assertion of jurisdiction in
Section 8 (a) cases. For, where employer unfair labor practices are
alleged, the Board asserts jurisdiction on the basis of the entire opera-
tions of the employer, not just that department or portion of the
business in which the alleged unfair labor practice occurred. Paul W.
Speer, Inc., 94 NLRB 317; George D. Auehter Company, 102 NLRB
881. And the Board has asserted jurisdiction in a case alleging em-
ployer interference with a union's organizing campaign, although the
employer's operations did not meet jurisdictional standards, where
.essentially the same labor dispute underlay that case and a consolidated
case involving-the same employer as the primary employer in a second-
ary boycott by the union, jurisdictional standards being met in the
secondary boycott case by adding the business of the secondary em-
ployers to that of the primary employer. Reilly Cartage Co., 110
NLRB 1742. Thus, in asserting jurisdiction in the instant case, we
are treating 8 (b) cases as we do 8 (a) cases thereby providing equal
protection to employees against unfair labor practices of labor
organizations and employers.
2. The Trial Examiner found in substance that, by picketing and
other conduct, the Respondents induced and encouraged employees of
various secondary employers to cease work as a means of compelling
the secondary employers to discontinue business with the primary
employer. He held that picketing at the premises of secondary em-
ployers was unlawful because not conducted according to the criteria
enunciated in the Moore Dry Dock case, 92 NLRB 547. He also held
that such picketing was unlawful under the rule laid down in the
Washington Coca-Cola case, 107 NLRB 299, enfd. 220 F. 2d 380 (C.
A., D. C.). We agree. However, as the primary employer had a
separate place of business at which the Respondents could effectively
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
publicize their dispute, we also hold that the "ambulatory situs"
doctrine of the Moore Dry Dock case, even if its requirements were
met, does not apply and thus all the picketing at the premises of the
secondary employers was unlawful.2
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations. Act, as amended, the National Labor
Relations Board hereby orders that :
A. Respondent Commission House Drivers, Helpers, and Em-
ployees Local No. 400, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, its
officers, representatives, agents, successors, and assigns, including Re-
spondents Michael Rini and William Sauerheimer, shall:
1. Cease and desist from inducing or encouraging employees of
Forest City-Weingart Produce Co., or the employees of any employer
other than Euclid Foods, Incorporated, d. b. a. Bondi's Mother Hub-
bard Market, to engage in any strike or concerted refusal in the course
of their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, materials, or commodities, or to
perform any services, where an object thereof is to force or require
any employer or person to cease doing business with Euclid Foods,
Incorporated.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at the business office of Commission House Drivers,
Helpers, and Employees Local No. 400, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
AFL-CIO, in Cleveland, Ohio, copies of the notice attached hereto
marked "Appendix A."' Copies of said notice, to be furnished by
the Regional Director for the Eighth Region, after being duly signed
by the official representatives of the aforesaid Respondent, Local No.
400, including Respondents Michael Rini and William Sauerheimer,
shall be posted by the aforesaid three Respondents immediately upon
receipt thereof, and maintained by them for a period of sixty (60)
consecutive days thereafter, in conspicuous places including all places
where notices to union members and notices to employees of Forest
City-Weingart Produce Co. are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not
altered, defaced, or covered by any other material. The Respondents
2 See Sheet Metal Workers International Association, Local No . 51 (W. H. Arthur
Company), 115 NLRB 1137; United Steelworkers of America, AFL-CIO, at at. (Barry
Controls , Inc.), 116 NLRB 1470; General Drivers, etc ., et at. ( The Caradine Company,
Inc.), 116 NLRB 1559.
S In 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."
COMMISSION HOUSE DRIVERS 133
shall also sign copies of the said notice which the Regional Director
shall submit for posting, the employers willing, at the premises of
Euclid Foods, Incorporated and Forest City-Weingart Produce Co.
B. Respondents Retail Food Clerks Local No. 880, Retail Clerks
International Association, AFL-CIO, and Amalgamated Meat
Cutters & Butcher Workmen of North America, Local No. 427,
AFL-CIO, and their officers, representatives, agents, successors, and
assigns, including Respondents Norman Rogers and Frank Cimino,
shall :
1. Cease and desist from inducing or encouraging the employees of.tn
Forest City-Weingart Produce Co., Cleveland-Sandusky Brewing
Corporation, Central Chevrolet Inc., Ohio Frozen Foods Distributors,
Inc., Kraft Foods Co., Pierre's French Ice Cream, Inc., Beverages,
Inc., James Vernor Company, Birely's Bottling Company of Cleve-
land, Incorporated, Canada Dry Ginger Ale, Incorporated, or Cleve-
land Coca-Cola Bottling Company, or the employees of any employer
other than Euclid Foods, Incorporated, to engage in a concerted re-
fusal in the course of their employment to perform any services where
an object thereof is to force or require any employer or person to
cease doing business with Euclid Foods, Incorporated.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices of Retail Food Clerks Local No.
880, Retail Clerks International Association, AFL-CIO, and of
Amalgamated Meat Cutters & Butcher Workmen of North America,
Local No. 427, AFL-CIO, in Cleveland, Ohio, copies of the notice
attached hereto marked "Appendix B."' Copies of said notice, to be
furnished by the Regional Director for the Eighth Region, after be-
ing duly signed by the official representatives of the aforesaid labor or-
ganizations, Local No. 880 and Local No. 427, including Respondents,
Norman Rogers and Frank Cimino, shall be posted by the aforesaid
four respondents immediately upon receipt thereof, and maintained
by them for a period of sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to union mem-
bers and notices'to employees of employers found herein to have been
affected by the aforesaid Respondents' unfair labor practices,' are
customarily posted. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered by
any other material. The Respondents shall also sign copies of said
notice which the Regional Director shall submit for posting, the em-
ployers willing, at the premises of the employers found herein to have
been affected by the Respondents' unfair labor practices.
4 See footnote 3, supra.
6 The employers identified in the record as so affected, all located in Cleveland, Ohio,
are named in paragraph B, 1 of our Order, above.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
C. Each respondent herein shall notify the Regional Director for
the Eighth Region in writing, within ten (10) days from the date
of this Order, what steps it or he has taken to comply herewith.
MEMBER MurnooK, dissenting :
This case poses the issue of the proper jurisdictional criteria to be
applied in a secondary boycott case where the primary employer is
not even engaged in commerce, and that portion of the secondary em-
ployers' business affected by the boycott does not meet the minimum
jurisdictional standards. In my view, application of the proper ju-
risdictional criteria would require the dismissal of this case. Accord-
ingly, I dissent from the failure to dismiss the case, and also from
the announcement by the majority of a new jurisdictional rule for
secondary boycott cases.
Euclid, the Primary Employer in this case, operates an independent
retail grocery in Ohio and, as found by the Trial Examiner, is not en-
gaged in commerce or in operations affecting commerce.' Therefore,
its operations do not give the Board even legal jurisdiction. Respond-
ents Clerks and. Meatcutters represent the employees of Euclid's
grocery and meat departments, respectively. In the course of a labor
dispute resulting in a strike of Euclid's employees, Respondents' en-
gaged in secondary picketing activities at the premises of 10 neutral
employers from whom Euclid ordinarily purchased supplies, as well
as at the premises of an automobile dealer where Euclid ordinarily
had its truck repaired.' ' Of these 10 secondary employer suppliers, 2
are engaged in the wholesale sale and distribution of groceries, 4 are
engaged in the bottling and sale of soft drinks, 1 is engaged in the
brewing and sale of beer, 1 is engaged in the manufacture and sale
of ice cream, and 1 is engaged in the manufacture, sale, and distri-
bution of food products. The operations of the last one are not de-
scribed in the record. Considered individually, the operations of the
ice cream manufacturer, 1 of the soft-drink bottling companies, and
1 of the wholesale food distributors do not satisfy the Board's juris-
dictional standards. The entire operations, at the location of the
secondary activity, of 5 of the secondary employers satisfy the Board's;
direct inflow standards and those of 1 satisfy the Board's direct out-
flow standards, although that portion of their business affected by
the boycott does not. The operations of the remaining 'two secondary
employers, at the location of the secondary activity, do not satisfy
6 The Trial Examiner found that "with the exception of Euclid and O'Brien, all of the
Employers are engaged in commerce. . . Later, the Trial Examiner dismissed the
complaint insofar as it alleged violations of 8 (b) (4) (A) at the premises of O'Brien
"because as has been found in section I, above, O'Brien is not engaged in commerce or
in a business affecting commerce within the meaning of the Act." If the finding quoted
above had this meaning insofar as it related to O'Brien, it necessarily bad the same mean-
ing with respect to Euclid.
' Including Respondent Teamsters.
8 As indicated above, a 12th supplier, O'Brien, was also named as a secondary employer.
COMMISSION HOUSE DRIVERS 135.
the Board's inflow or outflow standards for individual establishments,,
but jurisdiction would be asserted over those operations under the gross.
volume of business standard for multistate enterprises.
The record does not show the value of Euclid's purchases from any
of the secondary employers. The record does show, however, that the
secondary picketing activities were clearly calculated to affect, and in.
fact did affect, only the secondary employers' business with Euclid-
not their business with anyone else. These then are the facts on which.
the Board must determine whether the labor dispute between Respond-
ents and Euclid, including the picketing of the secondary employers"
premises, exerts a sufficient impact on commerce to warrant the Board's;
assertion of jurisdiction, keeping in mind that the Board has estab-
lished certain minimal jurisdictional standards.
In secondary boycott cases as in all other cases the Board's jurisdic-
tional authority derives from the fact that a labor dispute at an em-
ployer's operations affects or tends to affect interstate commerce. The-
problem of properly measuring the effect on commerce in such cases,
for the purpose of applying the Board's jurisdictional standards con-
fronted the Board when the 1950 jurisdictional standards were in
effect. The Board resolved that issue in Jamestown Builders Ex
change, Inc., 93 NLRB 386. The Board said :
By its very nature the .effect of a secondary boycott extends:
beyond the operations of the primary employer with which the
union is engaged in a dispute, and reaches the secondary employers
whom the union is attempting to force or require to cease dealing
with the primary employer by means prescribed [sic] in Section
8 (b) (4). It is clear that the Board must take cognizance of this
fact when considering whether it will effectuate the policies of
the Act to assert jurisdiction in such cases.
Accordingly, in determining whether the Board will assert
jurisdiction in cases in which secondary boycotts are alleged, we
must consider not only the operations of the primary employer,
but also the operations of any second employers, to the extent that
the latter are affected by the conduct involved. Of course, if the
operations of the primary employer alone meet the minimum re-
quirements under the Board's current policy, jurisdiction should
be asserted without further inquiry. Where, however, the opera-
tions of the primary employer do not satisfy the Board's jurisdic-
tion standards we must, in addition, consider the operations of
the secondary employers, but only insofar as such operations are
affected by the alleged unlawful boycott. If, taken together, the.
business of the primary employer and that portion of the second-
ary employers' business which is affected by the alleged boycott.
meet the minimum standards, jurisdicion ought to be asserted.
[Emphasis supplied.]
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Application of the Jamestown rule, which considers operations of
the secondary employers "only insofar as those operations are affected"
by an unlawful boycott, would require the dismissal of the complaint
on jurisdictional grounds. As previously noted, the secondary picket-
ing activities were clearly calculated to affect, and did affect, only the
secondary employers' business with Euclid. As Euclid was not en-
gaged in operations affecting commerce, it is clear that the interference
with Euclid's purchases from the secondary employers did not inter-
fere with the movement of goods which had come from out of State to
any of the secondary employers, for otherwise Euclid's operations
would have affected commerce to some degree. Even assuming, con-
trary to the record and the Trial Examiner's findings, that the second-
ary employers' purchases from out of State would be affected in an
amount equal to the value of Euclid's purchases if Euclid's purchases
ceased, that would be the full extent of any possible effect on commerce
of the labor dispute involved herein. As noted, the record does not
reflect the value of such purchases, Euclid is an independent grocer
not even engaged in operations affecting commerce, and there is no basis
for inferring that the volume of such purchases is substantial or that
the impact of the labor dispute on commerce including both its primary
and its secondary phases would even meet the minimum requirements
of the 1950 jurisdictional standards, to say nothing of the more re-
strictive requirements of the current Board standards.
After the current, more restrictive jurisdictional standards were
adopted in 1954, a majority of the Board, in the McAllister case;
though adopting the basic principle of the Jamestown rule that it was
proper in secondary boycott cases to consider not only the operations of
the primary employer but also those of secondary employer, radically
changed the Jamestown rule by stating that it would thenceforward
consider not just those operations of the secondary employer affected
by that activity but the entire operations of the secondary employer at
the location where the secondary activity occurred. I reserved decision
in the McAllister case on the substitution of the new rule for the
original Jamestown rule, not finding it necessary to pass on it in that
case, because the primary employer's operations were sufficient, in my
view, to warrant the assertion of jurisdiction. However, as an appli-
cation of the Jamestown rule would require dismissal of the complaint
herein on jurisdictional grounds, whereas the application by the Trial
Examiner of the McAllister rule requires assertion, it is now necessary
for me to pass on the propriety of both the McAllister rule and the
majority's new substitute rule as enunciated in this case.
After careful consideration, I conclude that the Jamestown rule is
the more appropriate rule of the three. Indeed I have grave doubts
9 McAllister Transfer, Inc., 110 NLRB 1769.
COMMISSION HOUSE DRIVERS 137
as to the propriety of both the McAllister rule and of the majority's
new rule. In permitting consideration of the entire operations of a
secondary employer at the location of the unlawful secondary activity,
without regard to whether such activities affect the entire operation or
not, the McAllister rules goes outside the area of the labor dispute and
its impact on commerce for the critical jurisdictional data on which
to ground jurisdiction . Thus it is a departure from a proper policy
of relating jurisdictional standards to the impact on commerce of the
operations to which they are applied . The fact that the Board con-
siders the entire operations of an employer in cases involving primary
disputes , does not, as the majority suggests , require the Board to con-
sider the entire operations of secondary employers to whose premises
the dispute has been carried . What is required is for the Board to
consider the full extent of the effect of the dispute on the secondary
employer 's operations . If the dispute has no other effect than to pre-
vent the secondary employer from selling an inconsequential amount
of goods to the primary employer , as is clearly the situation in this
case, there is no warrant for considering any other of the secondary
employer's operations , which are not involved and not affected by the
dispute. Of course , if the dispute does affect all of the secondary
employer's operations at the location of the secondary activity, then
it is necessary to consider all such operations . This the Jamestown
rule requires . And if the dispute affects the secondary employer's
operations at other locations , then it is necessary to consider such opera-
tions also. This too is required by the Jamestown rule, which makes
due allowance for the actual impact of a secondary dispute on
commerce.
The McAllister rule is also inconsistent with the generally restric-
tive jurisdictional standards adopted by the Board in 1954. The
McAllister case itself affords a graphic illustration of the inconsist-
ency between the Board 's general restriction of its jurisdiction since
1954 and its expansion of jurisdiction in the secondary boycott field.
The primary employer involved therein was a transportation com-
pany, over which the Board would have asserted jurisdiction under
the 1950 standards and thus there would have been no need even to
consider the operations of the secondary employers involved. How-
ever, the 1954 standard for such enterprises was so restrictive that it
precluded assertion of jurisdiction solely on the basis of the primary
employer's operations , thus necessitating consideration of the second-
ary employer 's operations to the extent affected under the Jamestown
rule. But even that rule would not suffice to permit the assertion of
jurisdiction , so the rule was adopted in the McAllister case that the
Board would consider all the operations of the secondary employer at
the location of the secondary activity , not just those affected by the
labor dispute . Under that rule jurisdiction could be and was asserted.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I submit that the McAllister rule is an improper exercise of dis-
cretion, not only because it goes beyond the area of the labor dispute
and its impact on commerce for the critical jurisdictional facts, but
also because it results in a discriminatory application of the Board's
jurisdiction over this particular type of union unfair labor practice,
while at the same time the Board is restricting the exercise of its
jurisdiction over employer unfair labor practices . While I took sharp
issue in my Breeding Transfer ( 110 NLRB 493) dissent in 1954 with
what I thought was an unjustified slash in the Board's jurisdiction
by the adoption of more restrictive jurisdictional standards , the issue
here is not whether the standards themselves should be raised or
lowered by changing the dollar volume of inflow or outflow required.
Confronted with the fact of a stated dollar volume for a standard, the
question here is whether the Board should be more liberal in computing
the required dollar volume where the unfair labor practice involved
is a secondary boycott than it is with respect to any other types of
unfair labor practices.
While I obviously think it is time to abandon the McAllister rule
in favor of a return to the more realistic Jamestown rule, my col-
leagues are now abandoning the McAllister rule in favor of an even
less justifiable rule. In place of the McAllister rule on which the
Trial Examiner relied, my colleagues now say that in asserting juris-
diction they "rely only on the fact that all the secondary employers
were victims of a pattern of unfair labor practices and that the busi-
ness of one or more of the secondary employers , each standing alone,
meets the jurisdictional requirements ." [Emphasis supplied.] In
other words , this rule means that where, as here , 11 employers are
objects of secondary picketing , if the entire operations of only 1 meet
the jurisdictional standards and those of 10 should not, the Board
will nevertheless assert jurisdiction and also find the picketing of
each of the 10 to be an unfair labor practice and enjoin picketing of
those employers too. In the instant case , of course , it happens to be
only 3 employers out of 11 whose entire operations do not even meet
the Board 's jurisdictional standards . But as to them the Union is
'nevertheless found to have committed an unfair labor practice and
been enjoined from further picketing . These three employers are
Pierre's French Ice Cream, Inc., Birely 's Bottling Company, and.
Ohio Frozen Foods Distributors , Inc. Not one of them would even
meet the more liberal jurisdictional standards of the 1950 plan, let
alone the 1954 standards ! Why should the Board disregard its
minimal jurisdictional standards to extend to these employers the
protection of Section 8 (b) (4) of the Act against union unfair labor
practices when the Board would refuse to protect the employees of
these very same employers against employer unfair labor practices
under Section 8 ( a) of the Act ? Yet this unfair imbalance is created
COMMISSION HOUSE DRIVERS 139
both by the McAllister rule and by the new "one or more" rule laid
down by my colleagues today. Either rule operates to give employers
protection from union unfair labor practices in cases where the actual
impact of the unfair labor practices on commerce is negligible, while
the Board continues to deny the employees of such employers any
protection against their own employer's unfair labor practices.10 I
can find nothing in the Act or its legislative history which even sug-
gests that Congress ever intended that the Board should go so much
further in protecting employers against union unfair practices under
'Section 8 (b) (4) of the Act than in protecting employees from em-
ployer unfair labor practices under Section 8 (a).
The majority's assertion that its jurisdictional policy for secondary
boycott cases is no different than its policy for 8 (a) and other 8 (b)
cases does not stand close examination. The majority points to the
Reilly Cartage case as proof of such equal treatment. But in that
case the majority applied its secondary boycott jurisdictional
standard to assert jurisdiction over an employer in an 8 (a) case,
only because "Essentially the same basic labor dispute [was] sub-
-stantially involved . . ." in both the 8 (a) case and its companion
8 (b) (4) case. It is clear that but for the coincident 8 (b) (4)
activity the Board would not have asserted jurisdiction over the em-
plover's alleged unfair labor practices against its own employees.
Thus the very case cited by the majority actually demonstrates that
the Board's standards for S (a) cases are different and more restric-
tive than its standards for secondary boycott cases; and that an em-
ployer who may gain protection from a union's secondary boycott
activities under the McAllister rule or the majority's new "one or
-more'' rule may nevertheless commit unfair labor practices against
his own employees without subjecting itself to the Board's processes,
so long as such practices are independent of a union's secondary
boycott. My colleagues cannot deny that if the employees of Pierre's
French Ice Crean, Inc., Birely's Bottling Company, or Ohio Frozen
Foods Distributors, Inc., attempted to join a union and were the sub-
ject of discriminatory discharges in a context unrelated to secondary
10 In permitting the totaling of the primary employer's operations and the secondary
employer's operations , to the extent affected , the Jamestown rule may also result in af-
fording protection from 8 (b) (4) activity to employers whose operations do not independ-
ently satisfy the Board 's jurisdictional standards , and whose employees would , therefore,
not be afforded protection from such employers' unfair labor practices . But jurisdiction
is then asserted in the 8 ( b) (4) case because the impact on commerce of the labor dis-
pute involved is sufficient to satisfy the Board's minimum standards, while jurisdiction
is declined in the 8 ( a) case because the impact on commerce of the labor dispute therein
involved is less than that required by the Board ' s jurisdictional standards . The asser-.
tin of jurisdiction in the one case is entirely consistent with the refusal to assert juris-
diction in the other case. Under the McAllister rule and the majority 's "one or more"
rule, however, jurisdiction may be asserted in the 8 ( b) (4) case despite the fact that the
impact on commerce of the labor dispute involved is no greater than the impact on com-
merce of the labor dispute involved in the 8 ( a) case over which the Board would not
assert jurisdiction.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity, this Board would deny them the use of its processes to pro-
tect them against their employer's unfair labor practices. I further
note that even where substantially the same dispute underlies employer
unfair labor practices and a union's unlawful secondary boycott, the
Board does not always apply the jurisdictional rules applicable to
secondary boycott cases for the purpose of asserting jurisdiction over
the employer's unfair labor practices. See Hildebrand Warehouse
Company, 111 NLRB 1313, where after the respondent union had
complied with the Trial Examiner's recommended order the Board
dismissed the complaint against the employer on jurisdictional
grounds, refusing to apply the Reilly Cartage rule. I do not be-
lieve that the Board's concern "that innocent third parties not be
injured by secondary boycotts," should exceed its concern that inno-
cent employees not be injured by employer unfair labor practices.
It may be noted that it was the adoption of the highly restrictive
1954 jurisdictional standards which greatly lessened the protection
afforded third parties against injury from secondary boycotts in the
first place, which created the necessity for the adoption of the McAl-
lister rule to avoid such a result. A return to the 1950 jurisdictional
standards in accordance with the recent strong invitation. of the
Supreme Court that the Board "reassert" its jurisdiction and thereby
reduce the area of the no-man's-land 11 would go a long way to restore
the protection of the Act against injury from the secondary boycott.
But it would also have the equitable and beneficial result of increasing
the protection afforded employees from other unfair labor practices,
whether committed by employers or unions.
For the foregoing reasons, I would apply the Jamestown rule which
would require a dismissal of this case, and reject either the original
McAllister substitute for it or the new rule laid down by the majority
in today's decision.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
u Guss v. Utah Labor Relations Board , 77 S. Ct. 598, 39 LRRM 2567; Amalgamated
Meat Cutters and Butcher Workmen of North America, Local No. 427 v. Fairlawn Meats,
Inc., 77 S. Ct. 604, 39 LRR11M 2571 ; San Diego Building Trades council v. Garmon, 77
S. Ct. 609, 39 LRRM 2574.
APPENDIX A
NOTICE TO ALL MEMBERS OF COMMSSSION HOUSE DRIvERS, HELPERS,
AND EMPLOYEES LOCAL No. 400, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &, HELPERS OF AMERICA,
AFL-CIO AND TO ALL EMPLOYEES OF FOREST CITY-WEINGART
PRODUCE Co.
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, we hereby notify you that :
COMMISSION HOUSE DRIVERS 141
WE WILL NOT induce or encourage the employees of Forest City-
Weingart Produce Co., or the employees of any other employer, to
engage in a concerted refusal in the course of their employment to
perform any services, where an object thereof is to force or require
their employers to cease doing business with Euclid Foods, In-
corporated.
COMMISSION HOUSE DRIVERS, HELPERS AND
EMPLOYEES LOCAL No. 400, INTERNATIONAL
BROTHERHOOD Or TEAMSTERS, CHAUFFEURS,
WVAREHOUSDMEN & HELPERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated----------------
Dated----------------
----------------------------------------
(MICHAEL RINI)
(WILLIAM SAUERHEIMER)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
.NOTICE TO ALL MEMBERS OF RETAIL FOOD CLERKS LOCAL No. 880, RETAIL
CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, AND AMALGAM-
ATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA,
LOCAL No. 427, AFL-CIO, AND TO ALL EMPLOYEES OF FOREST CITY-
WEINGART PRODUCE CO., CLEVELAND-SANDUSKY BREWING CORPORA-
TION, CENTRAL CHEVROLET, INC., OHIO FROZEN FOODS DISTRIBUTORS,
INC., KRAFT FOODS Co., PIERRE'S FRENCH ICE CREAM, INC., BEVER-
AGES, INC., JAMES VERNOR COMPANY, BIRELY'S BOTTLING COMPANY
OF CLEVELAND, INCORPORATED, CANADA DRY GINGER ALE, INCORPO-
RATED, AND CLEVELAND COCA-COLA BOTTLING COMPANY
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, we hereby notify you that :
WE WILL NOT induce or encourage the employees of Forest
City-Weingart Produce Co., Cleveland-Sandusky Brewing Cor-
poration, Central Chevrolet, Inc., Ohio Frozen Foods Distribu-
tors, Inc., Kraft Foods Co., Pierre's French Ice Cream, Inc.,
Beverages, Inc., James Vernor Company, Birely's Bottling Com-
pany of Cleveland, Incorporated, Canada Dry Ginger Ale, In-
corporated, or Cleveland Coca-Cola Bottling Company, or the
employees of any other employer, to engage in a concerted re-
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fusal in the course of their employment to perform any services,
where an object thereof is to force or require their respective em-
ployers to cease doing business with Euclid Foods, Incorporated.
RETAIL FOOD CLERKS LOCAL NO. 880,
RETAIL CLERKS INTERNATIONAL As-
SOCIATION , AFL-CIO,
Labor Organization.
Dated- --------------- By-------------------------------------
(Representative ) ( Title)
Dated----------------
(NOR.l1AN ROGERs)
AMALGAMATED MEAT CUTTERS & BUTCHER
WORKMEN OF NORTH AMERICA, LOCAL
No. 427, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- ----------------------------------------
(FRANK C1.l1INO)
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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
As amended at the hearing, the complaint, which was issued upon the second
amendment of charges filed by Euclid Foods, Incorporated (herein called Euclid
and the Primary Employer), asserts violation of Section 8 (b) (4) (A) of the
National Labor Relations Act by each of the three labor organizations named as
Respondents (hereinafter respectively referred to as the Teamsters, the Clerks, and
the Meat Cutters),' and also by their respective named agents. In substance, the
complaint as amended alleges that:
(1) On certain dates hereinafter noted, the -Respondents followed Euclid's gen-
eral manager or its truck to the business premises of various other employers and
there (by picketing, oral orders, appeals, directions, and instructions) induced and
encouraged employees of said other employers (herein collectively referred to as
the secondary employers) to engage in a strike or a concerted refusal in the course
of their employment to perform certain services, including the handling of mer-
chandise bought for Euclid and the repair of Euclid's truck.
(2) The Respondents committed these acts with an object of forcing or requiring
the secondary employers to cease doing business with Euclid.
(3) All of the Respondents engaged in such acts on or about March 2, 1956, and
Respondents Clerks and Meat Cutters and their respective agents also engaged in
such further acts on or about April 3, 5, and 6, 1956.
(4) By the foregoing acts, the Respondents and each of them have engaged in
unfair labor practices affecting commerce within the meaning of Section 8 (b) (4)
(A) and Section 2 (6) and (7) of the National Labor Relations Act, herein called
the Act.
1 At the beginning of the hearing, the Trial Examiner granted an unopposed motion
made by counsel for 2 other originally named Respondents (i. e., Retail Clerks Local No.
41, Retail Clerks International Association, AFL-CIO, and Norman Rogers, its first vice
president) to dismiss the complaint so far as these 2 Respondents were concerned.
Rogers, however, was retained as a Respondent in the role of agent of Clerks Local No.
880. The title of the present case, as set forth above, indicates only the names of the
Respondents retained in the action:
COMMISSION HOUSE DRIVERS 143
In their respective answers to the complaint as amended , each of the Respondents
denies those allegations relating to the commission of any unfair labor practices,
and further disclaims any information or knowledge upon which to form a belief
with respect to those allegations of the amended complaint relating to the businesses
of Euclid and the secondary employers.
Pursuant to notice , a hearing was held in Cleveland, Ohio, on May 14, 15, 16, 17,
and 18 , 1955 , before the Trial Examiner duly designated by the Chief Trial Exam-
iner. The General Counsel, Euclid , and each of the Respondents appeared by counsel
and were afforded full opportunity to be heard , to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the issues . Before the close of the
hearing, the General Counsel submitted oral argument upon the issues , but the other
parties waived their right to do so. On June 25 , 1956, the Trial Examiner received
briefs from the General Counsel and each of the Respondents.
Upon the entire record in the case , and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF .FACT
I. THE BUSINESSES OF THE EMPLOYERS
The Primary Employer, Euclid Foods, Incorporated , doing business as Bondi's.
Mother Hubbard Market (herein called Euclid ), is an Ohio corporation which
operates a retail food store in Cleveland , Ohio. It is 1 of 3 independent grocers
who have voluntarily associated for certain purposes as the Mother Hubbard group.
Until March 3, 1956, Nick Bondi , vice president and general manager of Euclid,
did the purchasing and merchandising for the produce departments of these three
stores.
With respect to the 12 secondary employers who are named in the complaint and
with whom Euclid did business , uncontradicted evidence shows that:
Forest City-Weingart Produce Co., herein called Forest City, is a partnership,
engaged in the wholesale fruit and produce business at the Northern Ohio Food
Terminal in Cleveland , Ohio. In 1955, Forest City purchased merchandise valued
at approximately $1,000,000, which it received directly from points outside the
State of Ohio.
Cleveland-Sandusky Brewing Corporation , herein called Cleveland , is an Ohio
corporation which is engaged at its brewery in Cleveland , Ohio, in the manufacture,
sale, and distribution of beer. During the year 1955, Cleveland sold and shipped
beer of a value in excess of $100,000 directly to points outside the State of Ohio..
Central Chevrolet, Inc., herein called Central, is an Ohio corporation with. its
place of business in Cleveland , Ohio, where it sells new and used cars and parts,
and service at retail , under a franchise from the Chevrolet Motor Division of Gen-
eral Motors Corporation of Detroit , Michigan . In 1955, Central purchased and
received shipment of new cars of a value of more than $ 1,000,000 from Flint,.
Michigan.
Ohio Frozen Foods Distributors , Inc., herein called Ohio , is an Ohio corporation
engaged in the wholesale sale and distribution of frozen foods in Cleveland, Ohio.
In 1955 , Ohio purchased merchandise of a value of $491,966 which was shipped
to it at Cleveland , Ohio, from points outside the State of Ohio.
Kraft Foods Co., herein called Kraft, is a subsidiary of National Dairy Corporation.
Kraft and National Dairy Corporation are engaged in the manufacture , sale, and dis -
tribution of food products throughout the 48 States of the United States and also
in foreign countries . In the operation of its Cleveland , Ohio, business in 1955,
Kraft purchased merchandise of a value of $9,784,328 of which 98 percent was
shipped to , and received by, Kraft in Cleveland , Ohio, from points outside the State
of Ohio.
Pierre's French Ice Cream , Inc., herein called Pierre , is an Ohio corporation en-
gaged at Cleveland, Ohio , in the manufacture , sale, and distribution of ice cream.
In 1955 , Pierre purchased raw materials of a value of approximately $40,000 or
$45,000 which it received directly from points outside the State of Ohio.
Beverages , Inc., herein called Beverages , is an Ohio corporation engaged in
Cleveland , Ohio , in the bottling of soft drinks. In 1955, materials of a value of
more than $ 1,000 ,000 were shipped to Beverages in Cleveland, Ohio, from points:
outside the State of Ohio.
James Vernor Company , herein called Vernor, is a Michigan corporation with its
principal office located in Detroit , Michigan . It operates a branch in Cleveland,
Ohio. In 1955, Vernor 's total sales were in excess of $7,000,000 , of which more than
$1,600 ,000 represented sales and shipments of finished products to points outside
the State of Michigan . In 1955 , the Cleveland branch of Vernor received ship-
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
silents of materials from points outside the State of Ohio of a value in excess of
$320,000.
Birely's Bottling Company of Cleveland, Incorporated, herein called Birely, is
an Ohio corporation with its principal office in Cleveland, Ohio, where it is en-
gaged in the soft-drink business and operates under a franchise from General
Foods. In 1955, Birely purchased merchandise of a value of $60,000 or $70,000,
which it received directly from points outside the State of Ohio.
Canada Dry Ginger Ale, Incorporated, herein called Canada, is a Delaware
corporation with a branch located in Cleveland, Ohio. During the year ending
.September 30, 1955, Canada's national sales amounted to more than $74,000,000.
During the year 1955, Canada's Cleveland branch received merchandise of a value
of more than $100,000 from points outside the State of Ohio.
O'Brien and Neye, herein called O'Brien, is an Ohio corporation engaged at
Cleveland, Ohio, in operating a local cartage business within Cuyahoga County,
Ohio.
Cleveland Coca-Cola Bottling Company, herein called Coca-Cola, is engaged in
the business of bottling soft drinks and, in 1955, purchased and received delivery
of merchandise of a value of more than $1,000,000 directly from points outside
the State of Ohio.
From the foregoing undisputed facts it appears that, with the exception of Euclid
and O'Brien, all the employers are engaged in commerce and that, although the
volume of the interstate business of some of them, taken separately, would not
meet the jurisdictional minimums established by the Board for the assertion of
jurisdiction, the aggregate volume of all their interstate business does justify the
Board's taking jurisdiction.2
II. THE LABOR ORGANIZATIONS INVOLVED
Commission House Drivers, Helpers, and Employees Local No. 400, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, AFL-CIO; and Retail Foods Clerks Local No. 880, Retail Clerks Inter-
national Association, AFL-CIO; and Amalgamated Meat Cutters & Butcher Work-
men of North America, Local No. 427, AFL-CIO, are labor organizations within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Euclid's business premises consist of a single retail food store in the city of
Cleveland. On March 1, 1956, its grocery department and meat department em-
ployees, who were represented respectively by the Clerks and the Meat Cutters,
went on strike and, up to the time of the hearing, picketed the store every day
under the joint direction of the two unions. In the present case, as we have noted,
we are directly concerned with the strike-connected activities in which agents of
the Clerks, the Meat Cutters, and (in one instance) the Teamsters allegedly engaged
on or about March 2 and April 3, 5, and 6, 1956, at the business premises of
various wholesalers who supplied Euclid, as well as at the premises of an auto-
mobile dealer where Euclid ordinarily had its truck repaired.
A. The events of March 2 at Forest City
1. The facts
Early on the morning of March 2, 1956, the second day of the strike at Euclid,
Nick Bondi, Euclid's vice president and general manager, went to the Ohio Food
Terminal in Cleveland to purchase merchandise for the stores of the Mother Hub-
bard group, including Euclid, from various wholesale produce dealers (including
Forest City), each of which conducted its business in one of a long row of open-
front stores or "units" which they rented from the terminal. All of these units
front upon a common, continuous loading,and pedestrian platform or dock which
is about 10 feet wide and 600 feet long and borders a wide roadway and parking
strip.
Before considering the details of the evidence as to what happened on the
morning of March 2, it might be well to note that the events with which we are
2,lamestown Builders' Exchange, Inc., 93 NLRB 386; Kanawha Coal Operators' As-
sociation, 94 NLRB 1731 ; Lincoln Beer Distributors, 106 NLRB 405; Reilly Cartage Com-
pany, 110 NLRB 1742; McAllister Transfer, Inc., 110 NLRB 1769; Sand Door and Ply-
wood Co., 113 NLRB 1210; W. H. Arthur Company, 115 NLRB 1137.
COMMISSION HOUSE DRIVERS 145
concerned began in a restaurant at the terminal between 6 and 7 o'clock, with all
the principal actors present, i. e., Bondi, Business Agent Norman Rogers of the
Clerks, Business Agent Frank Cimino of the Meat Cutters, and Business Agents
William Sauerheimer and Michael Rini of the Teamsters. As will also be seen,
the action then moved to the platform or dock of the terminal and finally to the
area in and around Forest City's store at about the midpoint of the terminal.
Furthermore, during a portion of the morning, Business Agent Rogers of the Clerks
displayed a white cardboard sign on the platform under circumstances and for a
period of time as to which the evidence is in conflict. The sign, which Rogers had
procured from Business Agent Cimino of the Meat Cutters that morning and to
which the witnesses repeatedly referred in discribing what happened, measured 26
inches in its vertical dimension and 22 inches in width. Underneath a top margin
of 21/z inches, the sign contained the following 5 lines of block print, the first 2
of which were 61/2 inches high and the last 3, 2 inches high:
ON
STRIKE
MEAT CUTTERS
LOCAL UNION 427
A. F. of L.3
After displaying the sign in this original form for a period of time, the length of
which is in dispute, Rogers lettered in the words, "BONDI'S MOTHER HUB-
BARD," in the top 21h-inch margin, over the words, "ON STRIKE," and con-
tinued to display the sign. From this prefatory statement,as to the general situation,
we now turn to a consideration of the details of the evidence as to what happened
on the morning of March 2.
Bondi drove Euclid's station wagon to the terminal to haul away Euclid's pur-
chases and was accompanied by 2 trucks to take away the purchases he expected
to make for the 2 other Mother Hubbard stores. Upon arriving at the terminal
about 6 a. m., Bondi parked Euclid's station wagon in the roadway in front of
Forest City's unit and about 20 feet from the platform, so that, when Euclid's turn
for delivery came, the station wagon could then easily be driven into position at
the platform in front of the Forest City unit. The two trucks awaiting deliveries
for the other Mother Hubbard stores were parked at other points in the terminal.
Having parked the station wagon, Bondi went to the nearby restaurant in the
terminal and had breakfast with Leo and Aaron Mintz, who were apparently the
proprietors of one of the other Mother Hubbard stcres and had come to the
terminal in one of the trucks.
On the same morning, Business Agents Norman Rogers of the Clerks and Frank
Cimino of the Meat Cutters also came to the terminal about 6:30 a. m., having been
instructed to do so by their respective union superiors on the preceding day when
both had picketed at Euclid's store. They, too, went to the restaurant in the
terminal, where they saw Bondi, who told Cimino that he was there to buy
merchandise.
While Bondi was having breakfast with Leo and Aaron Mintz, Business Agents
William Sauerheimer and Michael Rini of the Teamsters came into the terminal
restaurant for breakfast. The Teamsters, so far as the record shows, represented
none of Euclid's employees and certainly had no dispute with Euclid. However,
it did represent, and held contracts covering, the employees of every one of the
65 produce dealers at the terminal, including Forest City. As the Teamsters agents,
Sauerheimer and Rini came to the terminal "practically every morning" to check
on the employers' compliance with the terms of their contracts with the Teamsters
and to receive and adjust grievances. To perform these functions, they "patroled"
the platform or dock and entered the stores or units as their business required.
a. Rini's and Bondi's conversation-
When Rini came into the terminal restaurant on March 2, he walked over to
Bondi's table and made some remark about the strike at Euclid. Bondi testified
that: Rini told him he would not be able to buy or load because he was on strike;
3 The Trial Examiner credits the testimony of Rogers and Cimino that the Meat Cut-
ters' name thus appeared on the sign when it was first displayed, rather than the testi-
mony of Bondi, Morton Weingart, William Neye, Edward Swiler, and Murray Peters that
the sign contained only the words "ON STRIKE."
450553-58-vol. 11.8-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bondi pointed out that there was no dispute with the Teamsters and that the other
Mother Hubbard stores were not on strike; Rini said that the Teamsters was sup-
porting its "sister locals"; and in the remainder of the conversation, Bondi told both
Rini and Sauerheimer (whom Rini called into the conversation) that he would buy
for the other two Mother Hubbard stores first, and then tell the Teamsters' represen-
tatives before he began buying for Euclid. Rini, however, testified that: His opening
remark to Bondi was, "Nick, why don't you get right and sign up with these people?";
Bondi then asked whether he "was going to be able to buy for Mother Hubbard";
Rini said that Bondi could buy all he wanted; Bondi thereupon asked whether he
"was going to be able to load"; Rini replied that Bondi would get delivery "if our boys
will go through," but that "you know how these merchants are, if they find out
you have got a strike; you are going to have a heck of a time getting your stuff because
they want to shy away from that stuff"'; and Bondi then said he would first buy for
"Mother Hubbard," and would tell the Teamsters representatives when he started
buying for Euclid. Both Rini and Sauerheimer testified that Sauerheimer was not
present during this conversation.
It is clear from this testimony of both Bondi and Rini, and the Trial Examiner
accordingly finds, that at the beginning of their conversation, Rini expressed sym-
pathy for the strike of the Clerks and Meat Cutters against Euclid and that, at the
end of their conversation, Bondi assured Rini that he would notify Rini when he
finished buying for the two other Mother Hubbard stores and was about to begin
buying for Euclid. In resolving the conflicts in Bondi's and Rini's testimony con-
cerning the balance of their conversation, the Trial Examiner has considered the
evidence as to Rini's and Sauerheimer's conduct the rest of the morning, which
strongly indicates that the Teamsters representatives had no intention of taking the
initiative in inducing employees of the produce dealers to refuse to make deliveries
to Euclid, even though they apparently expected these employees to refuse. In view
of this, it appears unlikely (and therefore not supported by the required preponder-
ance of the evidence) that Rini actually told Bondi, as Bondi in effect testified, that
Bondi would be unable to buy or load that morning because Euclid's employees
were on strike and the Teamsters was supporting its "sister locals." That Bondi
may have received an impression from Rini's remarks that this was, or would be,
the Teamsters' attitude would, of course, explain Bondi's assuring Rini that he would
notify Rini when he was about to begin buying for Euclid, so that at least he would
be able to secure delivery of his purchases for the other two stores without possible
interference, But, as to what was actually said by Rini, it seems much more likely,
and the Trial Examiner accordingly finds on the baisis of Rini's testimony, that
Rini told Bondi in substance that Bondi could buy all he wanted that morning, but
that he would not get delivery if the merchants and their employees knew of the
strike. The Trial Examiner also specifically finds that, in making these statements,
Rini indicated, at most, that the merchants and their employees would refuse to
deliver merchandise to Euclid and not that the Teamsters would induce, encourage,
or be responsible for such a refusal.
b. Events on the terminal platform
After his conversation with Rini, Bondi left the restaurant and, proceeding to
the terminal platform, visited the units or stores of about 10 produce dealers, in-
eluding Forest City, from each of whom he made purchases for the 2 stores of the
Mother Hubbard group other than Euclid, and actually secured delivery of these
purchases to the 2 trucks.
-)Bondi testified that: While he was making these rounds between approximately
6:30 and 8:30 a. m., he was followed along the platform by Rogers and Cimino;
Rogers displayed a sign which read: "ON STRIKE"; Rini and Sauerheimer were
also apparently following Bondi and sometimes talked with Rogers and Cimino,
and occasionally with a salesman or houseman of a produce dealer; in several in-
stances when Bondi went into a dealer's store, Rogers, Cimino, Rini and Sauerheimer
waited outside and were engaged in conversation when Bondi came out; in Bondi's
presence, Rini told Hymie Cohen (a clerk for one of the produce dealers) that,
although the Teamsters had no strike or grievance, it was supporting "other locals"
who were on strike; when Bondi completed his purchases for the two other Mother
Hubbard stores, he so informed Rini and Sauerheimer and said that he would begin
making purchases for Euclid; and Rini laughed and said, "You can purchase, but
you won't get delivery on it.,,
The Respondent's witnesses disputed every one of the elements of this testimony
of Bondi. With one exception, the Trial Examiner credits' the testimony' of the
COMMISSION HOUSE DRIVERS 147
Respondents' witnesses in this conflict of testimony and, with such references to the
testimony as are pertinent, makes the following findings:
(a) Although Rogers and Cimino denied following Bondi, they admitted walking
up and down the platform and seeing Bondi enter a number of produce dealers'
stores. Cimino testified that his instructions were to "observe" where Bondi made
his purchases 4 and that was what he and Rogers were doing that morning. And
both Business Agent Rini of the Teamsters and Cimino testified that earlier in the
morning, Cimino told Rini in the terminal restaurant that he was there to observe
where Bondi made his purchases. Upon this testimony, as well as that of Bondi, the
Trial Examiner finds, despite Rogers' and Cimino's flat denials, that Rogers and
Cimino followed Bondi about the terminal platform as he was making purchases
for the two other Mother Hubbard stores.
(b) Cimino and Rogers denied that either of them displayed any sign while
they were walking up and down the platform. Their denials were corroborated by
the testimony of Rini and Samuel Monash, one of the produce dealers from whom
Bondi made purchases that morning. Rini testified that although he saw Rogers
and Cimino walking around the platform early in the morning, at the same time that
Bondi was visiting produce dealers, he did not see either Rogers or Cimino carrying
a sign at that time. Monash testified that he did not see Rini nor Sauerheimer, nor
Rogers, nor Cimino, nor any sign in front of his premises that morning. Cimino and
Rogers further testified that while they were walking up and down the platform, the
picket sign, which Rogers had received from Cimino and which has already been
described, was folded and held by Rogers under his coat, and that it was not displayed
until later that morning when, as we shall see, Euclid's station wagon was backed
up to the dock at the Forest City unit and Rogers and Cimino stationed themselves
at its tailgate. The Trial Examiner credits this testimony and finds, despite Bondi's
testimony to the contrary, that neither Rogers nor Cimino displayed a sign while
Bondi was going from store to store making purchases for the two Mother Hubbard
stores other than Euclid.
(c) Rini and Sauerheimer denied in their testimony that they followed Bondi
on his initial round of the produce dealers, and not only pointed out that their
movements about the platform that morning were quite usual in the course of the
performance of their regular duties, but also testified (and were corroborated in
their testimony by the testimony of Joseph Whalen) that for approximately an hour
between 8 and 9 o'clock they were not even at the terminal but were visiting Whalen
at his office a few blocks away. The Trial Examiner credits this testimony and
finds, contrary to Bondi's testimony, that Rini and Sauerheimer did not follow Bondi
about the platform as he was making purchases for the two other Mother Hubbard
stores.
(d) The Trial Examiner finds upon the testimony of Rini, Sauerheimer, Rogers,
and Cimino, and contrary to the testimony of Bondi, that while Bondi was making
purchases for the other Mother Hubbard stores, Rini and Sauerheimer did not walk
along with, nor talk with, Rogers or Cimino.
(e) The Trial Examiner finds, in accordance with testimony given by Rini and
contrary to Bondi's testimony, that the conversation which Rini had with Hymie
Cohen in Bondi's presence did not occur while Bondi was making his original round
of the dealers in order to purchase merchandise for the two Mother Hubbard stores
other than Euclid, but at a later time that morning, after Rini had seen Rogers
standing with a picket sign at the tailgate of Euclid's truck in front of Forest City's
store; that in this conversation, Cohen asked Rini whether he was going to run out
the small buyers; and that Rini replied that he was not trying to do this, he had no
trouble with Bondi, "there is a picket line," and "it's up to our men whether they want
to go through or not."
c. Incidents at the Forest City unit
Having completed his purchases for the other Mother Hubbard stores, Bondi
entered the Forest City store between 8:30 and 9 o'clock and ordered produce for
Euclid. After a delay because of a flat tire, Euclid's station wagon was backed up
to the platform in front of Forest City's store between 9 and 9:30 a.m. Rogers and
Cimino had recognized the station wagon, having seen it the preceding day when
they had picketed at Euclid. Accordingly, when the wagon was backed into position
at the platform, Rogers and Cimino stationed themselves on the edge of the plat-
form at the tailgate of the wagon, and faced the front of Forest City's unit where
4 In his testimony, however, Rogers denied that 'he was told to keep an. eye on Bondi.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they remained for at least an hour, without talking to any of the Forest City em-
ployees or to anyone else.5
While standing on the platform between Euclid' s station wagon and the Forest
City unit, Rogers held the picket sign which has been described and which, it will
be recalled, had first contained no reference to Euclid or "Bondi's Mother Hubbard,"
as Euclid was more generally known. Rogers testified that he repeatedly said,
"Bondi's Mother Hubbard on strike," although he frankly stated that he did so in
a low voice and none of the other witnesses testified that they had heard him.
Although it appears clear from the testimony of Bondi, as well as that of Rogers and
Cimino, that Rogers printed "BONDI'S MOTHER HUBBARD" on the sign over the
words "ON STRIKE," there is conflicting evidence as to when he did so. The con-
flicting evidence on this point is intertwined with the evidence as to what took place
at the same time inside the Forest City unit, and will therefore later be discussed
in that connection.
In a short time, the sign and Rogers' and Cimino's presence attracted a crowd of
about 25 or 30 people to the platform in front of the Forest City unit. Among them
were some of Forest City's employees and a number of nearby produce dealers.
Euclid's purchases had been put into several baskets inside the Forest City unit,
from which point, according to a general practice and custom followed by Forest
City and the other produce dealers in the terminal and insisted upon by the Teamsters,
they were to be brought to the customer's truck only by "housemen" employed by
Forest City and represented by the Teamsters.6
In accordance with the uncontradicted testimony of Murray Peters, one of Forest
City's salesmen, the Trial Examiner finds that about 9 or 9:30 a.m., Peters asked
Henry DeLuis, one of Forest City's housemen, to carry the baskets containing
Euclid's purchases to the station wagon, but that DeLuis called Peters' attention
to Rogers and the sign and refused to make the delivery. Other instructions to the
housemen to carry out Euclid's order apparently also met with refusals by the house-
men. Thus, upon Bondi's uncontradicted testimony, the Trial Examiner finds that
Peters also asked houseman Joe Incorvio, and Bondi himself asked houseman Frank
Wiencek, but that both of these men refused. Furthermore, upon the uncon-
tradicted testimony of William Neye, Forest City's manager, the Trial Examiner
finds that Neye also asked Wiencek to take out Bondi's order but Wiencek refused,
saying that he did not feel free to cross the picket line.
Among the people who gathered at the Forest City store about this time were
Business Agents Rini and Sauerheimer of the Teamsters, who (according to their
testimony) had been at another point on the platform and had heard that there was
a picket sign at Forest City. According to their testimony and that of Rogers, they
arrived at the Forest City unit as Bondi was protesting because he was unable to
get delivery of Euclid's order. Consistent with this testimony as to the relative time
of Rini's and Sauerheimer's arrival, salesman Peters testified that he did not see
either Rini or Sauerheimer until after houseman DeLuis had refused to carry out
Euclid's order. Upon this testimony of Rini, Sauerheimer, and Peters, which the
Trial Examiner credits, the Trial Examiner finds that Rini and Sauerheimer did not
come to Forest City's unit until after houseman DeLuis had refused to carry out
Bondi's order and Bondi had begun his protest.
William Neye, Forest City's manager, and Edwin Swiler, the superintendent of the
terminal (who also came to the Forest City unit) protested to Rini and Sauerheimer
against the pickets. Rini and Sauerheimer told them, and also those of Forest City's
customers who were present in the unit, that there was no strike at Forest City and
that nothing was being done to stop customers from making purchases. To Neye
and Swiler, who objected to the pickets' presence on private property, they said, in
substance, that they had no control over Rogers and Cimino, and that it was up to
the terminal to ask the pickets to leave.
s This finding is made upon the testimony of Rogers and Cimino, although Bondi made
a passing reference in his testimony to Cimino's presence in the Forest City unit after
Rini and Sauerheimer arrived. Consistent with the present finding, Rini and Sauer-
heimer testified that they did not speak to Rogers or Cimino, nor see them speak with
anyone else.
d Although Bondi and Samuel Monash, one of the produce dealers, testified that small
purchases were sometimes carried out by the customers themselves, Monash added in
his testimony that, "We are caught usually," and "that if the union fellow reports us,
we do get bawled out and are told not to practice it." It seems apparent, therefore, that
the Teamsters recognizes no exceptions to the established custom nor, so far as the present
record shows, have the dealers insisted that there be an exception in the cases of small
orders.
COMMISSION HOUSE DRIVERS 149
As these conversations with Rini and Sauerheimer were taking place, Bondi at-
tempted to pick up a basket containing Euclid's purchases and to carry it out to the
station wagon himself, but Rini placed his hand on the basket.? In the conversation
during this incident, it appears clear from the evidence that Rini told Bondi in
substance that the delivery of purchases to the customers' trucks was "in the jurisdic-
tion" of the Teamsters; that the Teamsters intended "to protect [its] jurisdiction";
and that Bondi would have to get "one of our people" to carry out the order.8 Man-
ager Neye, too, told Bondi that Bondi could not himself take Euclid's purchases out
of Forest City's store, because of Forest City's agreement with the Teamsters.
But when Sid Weingart, one of Forest City's partners, asked Sauerheimer what
would happen if Weingart gave an order to the men to take out Euclid's orders,
Sauerheimer replied (according to Weingart's uncontradicted and credited testimony)
that "if our men knew it was for Nick Bondi, they wouldn't cross the picket line."
When it appeared clear that Bondi was not going to get delivery of his purchases
for Euclid, he called the police. Rogers, Cimino, Rini, and Sauerheimer gave their
names to the police lieutenant who answered the call and then left Forest City's
store. According to the various estimates given by Rogers in his testimony, it might
perhaps have been as late as 10:45 or 11 a. in. before they quit displaying the sign
and left the terminal. The Trial Examiner so finds. Bondi, too, left Forest City
and the terminal without the order he had placed for Euclid.
During all of the happenings at Forest City that morning, Rogers and Cimino had
apparently stayed at the back of Euclid's station wagon, and had no conversation
with Rini or Sauerheimer, nor with any Forest City employees, nor with any of the
other people in the Forest City unit.9 Furthermore, upon Rini's and Sauerheimer's
uncontradicted testimony, the Trial Examiner finds not only that they had no
conversation with Rogers or Cimino at Forest City, but that they made no remarks
directly to any of the Forest City employees. However, the evidence is clear, and
the Trial Examiner accordingly finds, that employees were in the store when Rini
and Sauerheimer made the remarks which the Trial Examiner has found were
made by these men to Bondi, Neye, Swiler, and Sid Weingart.
There remains for consideration the conflicting evidence bearing upon the question
of when Rogers added "BONDI'S MOTHER HUBBARD" to the "ON STRIKE"
sign which he displayed in front of the Forest City store. Rogers testified that the
change was made within "a very few minutes" after he began to picket, and when
pressed for a more definite estimate, he and Cimino testified that it might have been
5 minutes. Superintendent Swiler testified that the sign was displayed in its original
form for half an hour, while Manager Neye estimated it was an hour. Bondi, at
one point in his testimony, stated that the change in the sign was made after Manager
Neye's arrival at 9:30 a. m., but he later testified that it had been made before he
returned to Forest City's store for the delivery. On the other hand, salesman Peters'
testimony, which the Trial Examiner has already credited, would make it clear that
the change was made after houseman DeLuis called Peters' attention to the sign and
refused to make the delivery. And Rogers, himself, testified that he added "BONDI'S
MOTHER HUBBARD" to the sign after he heard "the row going on" inside Forest
City's store and after the crowd had gathered. Upon consideration of all this testi-
mony, the Trial Examiner credits this last-mentioned testimony given by Peters and
Rogers, and finds that, whether Rogers displayed the sign in its original form in
front of the Forest City store for as short a time as 5 minutes or for as long as
an hour, he did not add "BONDI'S MOTHER HUBBARD" for an appreciable time
after he and Cimino took their positions at the back of Euclid's station wagon, and,
specifically, that the change was not made until after Forest City's housemen re-
fused to carry out Euclid's order.
2. Conclusions
a. As to the Clerks' and Meat Cutters' picketing at Forest City
The arguments made by counsel in their briefs with respect to the conduct of
Rogers and Cimino as agents of the Clerks and the Meat Cutters on March 2 raise
7 Bondi and Rini so testified. Sauerheimer denied that Rini placed his hand upon the
basket but admitted that Rini objected to Bondi's carrying out the basket.
8 This finding is based not only upon the testimony of Rini and Sauerheimer, but also
upon Bondi's testimony that Rini said that a "union man" had to make the delivery to
the truck and made some reference to a provision of the Teamsters' contract.
9 As already noted, of all the witnesses, only Bondi referred in his testimony to Cimino's
presence within the Forest City unit when Rini prevented Bondi's taking out Euclid's order.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two main questions. The first involves the soundness or propriety of the rule of the
Board's decision in the Washington Coca-Cola case,1° that, regardless of the presence
of employees, trucks, or equipment of the primary employer, any picketing at a
neutral or secondary employer's business premises is a violation of Section 8 (b)
(4) (A) of the Act if, as in the present case, the primary employer maintains in
the area a business establishment which may be effectively picketed in appealing
to the primary employer's employees for their support because they spend all or a
substantial portion of their time working there. The second question is whether
the Clerks' and Meat Cutters' picketing of the Forest City unit on March 2 satisfied
the additional but earlier announced requirements of the Moore Dry Dock rule 11
relating to permissible picketing of the roving business situs of a primary employer.
The General Counsel contends that the Washington Coca-Cola rule is sound and
that, both under that rule and under the Moore Dry Dock rule, the Clerks' and
.the Meat Cutters' picketing of the Forest City unit was violative of Section 8 (b)
(4) (A) of the Act. Counsel for the Clerks and the Meat Cutters attacks the
Washington Coca-Cola rule as being unsound and relies upon the Moore Dry Dock
rule as justifying the picketing and the use of the sign on March 2.
To support his argument against the Washington Coca-Cola rule, counsel for
the Clerks and the Meat Cutters points out that the Courts of Appeals for the
Fifth Circuit and for the District of Columbia and also the United States District
Court for the District of Massachusetts have rejected the rule as unsound because,
in their opinion, the rule improperly presumes from the mere fact of picketing at
a neutral employer's place of business when effective picketing is possible at the
primary employer's place of business, that the picketing is intended to appeal to
the employees of the neutral employer rather than only to the employees of the
primary employer.12 But the Court of Appeals for the District of Columbia had
previously affirmed the Board's decision and enforced its order in the Washington
Coca-Cola case,13 and, in spite of the later opinions of the courts, the Board has
continued to adhere to, and apply, its Washington Coca-Cola rule.14
With due respect for the courts upon whose decisions the Respondents rely, the
Trial Examiner feels bound to follow the Board by abiding by, and applying, the
rule of its Washington Coca-Cola decision, and accordingly concludes that since
Euclid, the Primary Employer, maintained a place of business in the area where
all its employees were working and the striking unions had been picketing, the
Clerks' and the Meat Cutters' picketing at the Forest City unit on March 2 was a
violation of Section 8 (b) (4) (A) of the Act.
But even without the strict application of the rule of the Washington Coca-Cola
case, the same conclusion would be reached. For the objection of the courts to
the presumption of an improper intent to direct the appeal of the picketing to the
employees of Forest City, the secondary employer, is met in the present case
by Rogers' admission in his testimony that it was his intention that his picketing
and display of the sign at Forest City on the morning of March 2 should advertise
the fact that there was a strike against Euclid and have some effect upon anyone
who might be in the vicinity, including employees of Forest City if they were
there. Furthermore, the facts which have been found show that, contrary to the
Respondents' contention, the picketing on that morning did not comply with the
first and last of the four requirements laid down by the Board in the Moore Dry
Dock decision 15 for permissible picketing at a neutral employer's premises. Thus,
in spite of the presence of Bondi and Euclid's station wagon, the situs of the dispute
could not possibly be regarded as being at the premises of Forest City, the neutral
employer, at the time of the picketing there on March 2, since, as Rogers and
10 107 NLRB 299.
u Moore Dry Dock, Company, 92 NLRB 547.
12N. L. R. B. v. General Drivers, etc. ( Otis Massey Co.), 225 F. 2d 205 (C. A. 5) ;
Sales Drivers, etc. (Campbell Coal Company) v. N. L. R. B., 229 F. 2d 514 (C. A., D. C.) ;
Alpert v. United Steelworkers, etc., 38 LRRM 2193 (D. C., Mass.).
13 Brewery and Beverage Drivers, etc. v. N. L. R. B., 220 F. 2d 380 (C. A., D. C.).
14 See W. H. Arthur Company, 115 NLRB 1137, footnote 3.
15 The Board stated these requirements in the following language (see 92 NLRB at
549) :
(a) The picketing is strictly limited to times when the situs of dispute is lo-
cated on the secondary employer's premises ; (b) at the time of the picketing the pri-
mary employer is engaged in its normal business at the situs; (c) the picketing is
limited to places reasonably close to the location of the situs; and (d) the picketing
discloses clearly that the dispute is with the primary employ-r. [Footnotes omitted.]
COMMISSION HOUSE DRIVERS 151
Cimino knew, none of the employees of Euclid, the Primary Employer, were present
and the picketing could obviously not have been intended to appeal to them for their
support. Finally, as has been found, the sign displayed by Rogers did not indi-
cate that the strike was against Euclid, the Primary Employer, until after it had
caused Forest City's housemen to refuse to make deliveries to Euclid's station
wagon. Accordingly, it appears not only that the picketing did not indicate that
the dispute was with the Primary Employer (as required by the Moore Dry Dock
rule) but also that the picketing with the sign actually induced and encouraged
Forest City's employees to refuse to make the deliveries to Euclid and thus to refuse
to perform services in the regular course of their employment, and that an object
of the picketing was to force or require Forest City, the neutral employer, to
cease doing business with Euclid.
Upon the foregoing considerations, the Trial Examiner finds both under the
Washington Coca-Cola rule and the Moore Dry Dock rule that, by Rogers' and
Cimino's picketing and display of the sign at the business premises of Forest City
on March 2, 1956, the Clerks and the Meat Cutters and Norman Rogers and Frank
Cimino, their agents, induced and encouraged the employees of Forest City to
engage in a concerted refusal in the course of their employment to make deliveries
to Euclid; that an object thereof was to force and require Forest City to cease
doing business with Euclid; and that the Clerks and the Meat Cutters thereby
committed unfair labor practices within the meaning of Section 8 (b) (4) (A) of
the Act.
b. As to the conduct of the Teamsters agents at Forest City
In considering the evidence and making his findings of fact as to what Rini and
Sauerheimer of the Teamsters did and did not do on March 2, the Trial Examiner
has come to the conclusion that neither of them did anything to induce the initial
refusal of Forest City's employees to make a delivery to Euclid that morning. It
is true that Rini expressed his sympathy for the Clerks' and the Meat Cutters'
strike in his early morning conversation with Bondi and, though assuring Bondi
that he could buy all he wanted, also voiced his expectation that the merchants
and the employees themselves would refuse delivery if they knew of the strike.
But Rini did not tell or suggest to Bondi that the Teamsters would take the initiative
and induce such a refusal. Nor did either Rini or Sauerheimer actually take any
steps to do so. For, as the Trial Examiner has found, neither of them followed
Bondi along the platform when he was making purchases for the other Mother
Hubbard stores (as did Rogers and Cimino); neither of them spoke to employees of
Forest City; and neither of them was at the Forest City unit when Forest City's
housemen, upon seeing Rogers' sign, refused to make the delivery to Euclid. It
thus appears clear, and the Trial Examiner finds, that the initial refusal of Forest
City's employees to deliver the purchases Bondi made for Euclid, was induced
purely and simply by the presence of the Clerks' and the Meat Cutters' pickets
and the sign displayed by them, and not by anything that either Rini or Sauerheimer
of the Teamsters did. To this extent, the Trial Examiner is in full agreement with
the contentions made by counsel for the Teamsters in his brief.
But this does not dispose of all the evidence in the case against the Teamsters.
Although Rini's apparent sympathy with the Clerks' and the Meat Cutters' strike
against Euclid did not lead the two Teamsters agents to instigate Forest City's
employees' refusal to make the delivery to Euclid, it is clear that they expected
the Forest City employees to refuse without any encouragement from the Team-
sters-as in fact the employees did. However, when it appeared that Bondi was
about to get Euclid's order anyway, simply by carrying it out himself, the Teamsters
agents prevented him from doing so, thereby effectively blocking the only other
way in which Euclid might have procured the merchandise purchased for it by
Bondi from Forest City. Thus there still remains the question of whether, upon
coming to the Forest City unit and learning of the Forest City employees' refusal
to make the delivery to Euclid, Rini and Sauerheimer then, for the first time,
found it necessary to act upon their sympathy with the strike, and, by taking action
supplementing the refusal of the employees, showed their approval of the employees'
refusal and encouraged its continuance. Obviously, the answer to this question
depends upon the view taken of Rini's and Sauerheimer's blocking Bondi's attempt
to carry Euclid's order out himself, and their insistence, at the same time and in
the presence of the Forest City employees who had refused to make the delivery,
,that under established custom and policy at the terminal and therefore as a matter
of right, only Forest City's employees were permitted to carry purchases out of
'the unit to a customer's truck.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the Teamsters apparently believes not only that Rini's and Sauerhei-
mer's enforcement of this so-called "work policy" was a reasonable and proper step
for them to take under the circumstances, but also that it had no relation at all to
the Forest City employees' refusal to make the delivery to Euclid, even though it is
apparent that the Teamsters agents knew that the employees would not make the
delivery and that, by preventing Bondi from taking the merchandise himself, the
Teamsters agents were effectively blocking the delivery to Euclid and thus furnishing
the necessary complement to the employees' refusal. With this, the Trial Examiner
cannot agree.
As matters stood before Rini and Sauerheimer took this last step, the mere refusal
of the employees to make the delivery to Euclid had not involved the Teamsters in
any unfair labor practice since the Teamsters had not induced or encouraged the re-
fusal. And even the mere failure of Rini and Sauerheimer to disavow or attempt
to end the refusal when they learned of it would perhaps not have indicated their
approval, nor therefore in itself have constituted such inducement or encourage-
ment of continuance as would have been violative of Section 8 (b) (4) (A) of the
Act. But, in the opinion of the Trial Examiner, Rini's and Sauerheimer's insistence,
in the presence of the Forest City employees, that only they (and certainly not
Bondi) could transfer Euclid's order to its station wagon, created an entirely new
and different situation.
The "right" of the Forest City employees to make all deliveries to customers'
trucks certainly contemplated and depended upon the employees' willingness to make
the deliveries. Since the employees had refused to make the delivery to Euclid, Rini
and Sauerheimer, as the Teamsters agents and the responsible bargaining representa-
tives of the Forest City employees, had only two reasonable, alternative courses open
to them: (1) they could have requested or directed the employees to make the de-
livery in accordance with the general terms of their employment and, if the em-
ployees indicated a willingness to comply, could then reasonably have insisted upon
adherence to the "work policy"; or (2) they could have remained silent, recognizing
the fact that the employees' refusal to deliver had deprived them of the right to in-
sist that no one else carry out Euclid's order.
The Teamsters agents' insistence , instead, that only the Forest City employees could
make the transfer to Euclid's station wagon when they knew that the employees were
unwilling to do so, not only completely foreclosed the remaining possibility of Euclid's
securing the merchandise, but was also obviously unreasonable, since, in view of the
employees' refusal, there was no occasion or necessity for protecting their exclusive
right to perform the task of delivery, against Bondi or anyone else. More than
this, the action of the Teamsters agents quite clearly indicated to all who were pres-
ent, including the Forest City employees, that the Teamsters agents were actually
not interested in simply enforcing the "work policy"; that they were intent upon pre-
venting Euclid's receipt of the merchandise; that they therefore approved the em-
ployees' refusal to make delivery to Euclid and were encouraging its continuance; and
that, to supplement the employees' refusal, they were resorting to the "work policy"
as an additional obstacle to Euclid's procurement of any merchandise from Forest
City.
Upon the foregoing considerations , the Trial Examiner finds that, by their actions
at the Forest City unit and in accordance with the sympathy expressed by Rini for
the Clerks' and Meat Cutters' strike against Euclid, Rini and Sauerheimer, acting as
the agents of the Teamsters, encouraged the Forest City employees to continue to
refuse making any delivery to Euclid, and that their object was to render assistance
in the strike against Euclid by forcing and requiring Forest City to cease doing
business with Euclid. Accordingly, the Trial Examiner concludes that on March 2,
1956, Respondents Teamsters, and Michael Rini and William Sauerheimer as its
agents, induced and encouraged the employees of Forest City to engage in and
to continue to engage in a concerted refusal in the course of their employment to
make deliveries to Euclid; that an object of the said Respondents was to force and
require Forest City to cease doing business with Euclid; and that said Respondents
thereby committed unfair labor practices within the meaning of Section 8 (b) (4)
(A) of the Act.
B. Incidents in April 1956
1. The facts
During the first week of April 1956, business agents of the striking Respondent
Unions followed Euclid's truck, which was driven by Phillip Thomas, from Euclid's
store to the business places of the secondary employers other than Forest City, whose
businesses have been described in section I of this report. Thus, on April 3, Business
COMMISSION HOUSE DRIVERS 153
Agent Frank Cimino of the Meat Cutters and John Campbell, a member of the
Clerks, followed Euclid's truck in Cimino's automobile first to Cleveland and then
to Central, where Thomas left the truck for repairs pursuant to Nick Bondi's in-
structions. On April 5, Business Agent Nick Chubokas of the Clerks (driving his
own car) and Campbell (driving a station wagon) followed Euclid's truck to Ohio,
Kraft, and Pierre. And on April 6, Business Agents Cimino of the Meat Cutters and
William Rettig of the Clerks followed Euclid's truck in a station wagon to Vernor,
Beverages, O'Brien, Coca-Cola, Birely, and Canada.is With the exception of his
visit to Central, Thomas made each of these stops at the business places of the sec-
ondary employers, for the purpose of picking up merchandise or returning cases of
empty bottles.
Upon the evidence the Trial Examiner finds that, in the course of following Eu-
clid's truck on each of these 3 days, the union men displayed a sign or signs, each of
which gave the name of either the Meat Cutters local or the Clerks local as the
striking union and also stated: "BONDI'S MOTHER HUBBARD ON STRIKE,
PLEASE DO NOT PATRONIZE." 17 With respect to April 3, the Trial Examiner
further finds, upon the consistent testimony of Thomas and Cimino, that the only
sign used on that day also referred to the Meat Cutters local as the striking union,
that it was not displayed on Cimino's car that day, but that it was carried by Camp-
bell when he and Cimino left the car at the premises of Cleveland and Central. The
Trial Examiner finds, however, also upon the consistent testimony of Thomas and
Cimino, that on April 5 and 6 two signs containing the basic, quoted language were
displayed on the sides of the station wagon used by the union men, the sign on the
one side setting forth the name of the Meat Cutters local and the sign on the other
side, the name of the Clerks local.
The first factual problem raised by the evidence is whether the strike signs were
displayed in such a way as to be visible to employees of the secondary employers.
Thomas and Cimino agreed in their testimony, and the Trial Examiner finds, that
on April 3, Campbell carried the sign, walking up and down beside Euclid's truck
while it was parked alongside the delivery dock in Cleveland's yard, and also hold-
ing the sign when he and Cimino came into the service department at Central.
Upon the consistent portions of Thomas' and Chubokas' testimony as to April 5,
and of Thomas', Cimino's, and Rettig's testimony as to April 6, the Trial Examiner
also finds that the station wagon displaying the strike sign on those 2 days was driven
after Thomas' truck a considerable distance into a block-long passageway inside
Vernor's building, a short distance into Canada's building, and also into the court-
yards of Ohio, Beverages, O'Brien, Coca-Cola, and Birely; that the station wagon
pulled up to within a few feet of Thomas' truck in the passageway in Vernor's build-
ing where Cimino asked "the man in the white shirt" "not to do business with
16 Campbell and the 3 business agents, who were involved in the incidents of these 3 days,
had all previously engaged in the picketing which, as has been found, was taking place
at Euclid's store under the joint direction of the Hest Cutters and the Clerks. Cimino
testified that on April 3 and 6, be and his partner followed Euclid's truck on instructions
given him by Sam Pollock, who was the president of the Meat Cutters local. Although
Chubokas testified that he had received no instructions and acted on his own initiative
on April 5, it is undisputed that he was a business agent of the Clerks and, like Business
Agent Cimino on April 3 and 6, was at least acting within the scope of his employment.
Counsel for the Meat Cutters and the Clerks does not deny that both his clients are re-
sponsible for whatever acts were committed by Cimino, Campbell, Chubokas, or Rettig in
following Euclid's truck on April 3, 5, and 6.
17 The witnesses agreed that each of the signs gave the name of either the Meat Cutters
local or the Clerks local as the striking union. According to Cimino's testimony, the
language quoted in the text was the common, basic language of the signs used on April 3
and 6. In his testimony, Thomas also gave this as the basic language common to the
signs used on April 5 and 6, although he testified that the sign used on April 3 set forth
only the statement, "BONDI'S ON STRIKE," together with the name of Meat Cutters
local. Chubokas testified that the wording of two signs used on April 5 was "BONDI'S
MOTHER HUBBARD ON STRIKE," with the name of the Meat Cutters local on one
sign and the name of the Clerks local on the other. In describing two signs used on.
April 6, Rettig testified that one read "RETAIL CLERKS LOCAL 880 ON STRIKE AT
BONDI'S," and the other, "MEAT CUTTERS LOCAL 427 ON STRIKE." Campbell did
not testify at the hearing. Upon consideration of the testimony given, the Trial Examiner
believes that Cimino's version of the common, basic language of the signs used on April 3.
and 6, and Thomas' similar descriptions of the signs used on April 5 and 6, furnish a
reliable basis for the findings made in the text as to all the signs used in these April
incidents.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bondi's" and then, when this man told Cimino to leave, it was driven out of the
building to await Thomas at another entrance; and that, in those cases in which the
station wagon pulled into the courtyards of the secondary employers, it was parked
near Thomas' truck until Thomas left.18 The testimony of the witnesses shows,
however, and the Trial Examiner further finds, that at Kraft the union station wagon
was parked in the street near the point at which Thomas' truck had entered Kraft's
courtyard; and that at Pierre, it was also parked in the street near a side entrance.
Thomas testified in substance that at each of his stops on the 3 days in question,
the strike sign could be seen by 1 or more men who were in the vicinity and who
Thomas believed were employees of the respective secondary employers because
they were apparently at work, were entering or leaving the building for lunch or in
the course of their work, or wore working garb identifying them as employees of the
secondary employer.19 A careful check of the testimony of the Respondents' wit-
nesses reveals that the only dispute as to the visibility of the signs to employees of
the various secondary employers is raised by Ciminio's testimony concerning what
happened at Cleveland, O'Brien, Birely, Central, and Beverages.20 With respect to
the first three of these, Cimino testified that he saw none of their employees when he
was at their respective places of business. Furthermore, Cimino flatly denied
Thomas' testimony that, at Central, a number of men in mechanics' clothes gathered
around Cimino, but testified that, although he saw these men, they remained in the
other end of the building. Finally, as to Beverages, Cimino testified that the only
workers he saw there were working in the warehouse and could not see the station
wagon. But, consistent with Thomas' testimony on the point, Rettig testified that,
sitting in the station wagon in the Beverages' yard, he not only saw a man unload
Thomas' truck, but also saw Beverages' employees going to lunch. Upon considera-
tion of all testimony on the point, the Trial Examiner finds, as Thomas testified, that
at the premises of each of the 11 secondary employers visited in the 3 days in April,
there were 1 or more employees of the particular secondary employer who were
near, and could see, the strike sign displayed by the union men.
The General Counsel's contention that the Meat Cutters and the Clerks violated
Section 8 (b) (4) (A) of the Act in these April incidents, is based not only upon
the display of these signs at the business premises of the secondary employers, but
also upon Thomas' testimony that, on April 3 and 6, Cimino asked employees of
each of the secondary employers visited on those 2 days, except Birely and Canada,
to help out in the strike of Euclid's employees by not repairing Euclid's truck at Cen-
tral, and by not giving merchandise to Euclid at the other places. In answer to this,
the Respondents rely upon Cimino's denials that he saw employees of any of the
secondary employers, much less talked with them or made any such statements to
them as are attributed to him in Thomas' testimony. Cimino admitted, however, that,
while he did not make such statements to employees, he did ask the service manager
at Central to "support" the strike of Euclid's employees; that he asked a man in a
white shirt who came out of the office at Vernor "not to do business with Bondi's"
because of the strike; and that, referring to the strike at Euclid in each instance, he
also asked Sales Manager Schneider at Beverages, an office employee at O'Brien,
Sales Manager Kluth at Coca-Cola, Vice President Pansero at Birely, and Sales
Manager Keller at Canada, to help the strike of the Euclid employees either "by not
doing business" with Euclid or "by not selling merchandise" to Euclid.
12 Although Thomas and the Respondents' witnesses differed in their estimates of the
distances between the truck and the station wagon in their parked positions in the court-
yards, it would appear even from the testimony of the Respondents' witnesses that the
station wagon and the truck were at most 25 feet apart at Ohio, 50 feet at Beverages,
10 feet at O'Brien, 50 feet at Coca-Cola, and 30 feet at Birely.
19 Specifically, Thomas testified that : At Central the men in question wore mechanics'
clothes and left the cars they were working on to come over to Cimino and Campbell ; at
Cleveland and Beverages they were handling cases of bottles ; at Ohio and Vernor they
were loading or unloading trucks ; at Vernor, Pierre, O'Brien, and Birely they loaded
or unloaded Thomas' truck ; at Kraft they were entering and leaving the building ; at
Canada they were working in work clothes ; and at Beverages and Coca-Cola they were
wearing uniforms giving the names of these employers.
20 Chubokas, the Respondents' only witness as to the events of April 5, did not testify
as to whether there were employees of Ohio, Kraft, or Pierre in the vicinity of the strike
signs on the union station wagon that day. Cimino admitted that there were employees
of Vernor in the vicinity of the union station wagon on April 6, and testified that he paid
no attention to whether or not there were any employees of Coca-Cola or Canada nearby
when he visited their places of business the same day.
COMMISSION HOUSE DRIVERS 1 55
Upon consideration of this testimony, the Trial Examiner finds not only that
Cimino sought to enlist the aid of the various secondary employers through his ad-
mitted statements to actual or putative supervisors or managerial representatives,
but also, as Thomas testified, that Cimino asked employees of Cleveland, Central,
Vernor, Beverages, O'Brien, and Coca-Cola to help out the strike against Euclid by
not repairing Euclid's truck at Central and by not supplying merchandise to Euclid
at the other places.
2. Conclusions
The Trial Examiner dismisses the complaint insofar as it alleges in substance that
the Respondents committed any unfair labor practice within the meaning of the
Act by inducing or encouraging employees of O'Brien to engage in a concerted re-
fusal to make deliveries to Euclid because, as has been found in section I, above,
O'Brien is not engaged in commerce or in a business affecting commerce within the
meaning of the Act.
As in the case of the picketing at Forest City on March 2, 1956,21 the Trial Exam-
iner finds, however, under the Washington Coca-Cola rule, that, in view of the fact
that Euclid, the Primary Employer, maintained a place of business in the area
where its employees were working and the striking unions had been picketing, the
picketing of the business places of the various secondary employers (other than
O'Brien) by Cimino and Campbell on April 3, by Chubokas and Campbell on April
5, and by Cimino and Rettig on April 6 (all said pickets being agents of the Clerks
and the Meat Cutters and engaged in the joint strike activities of these two unions
agains Euclid), constituted unfair labor practices within the meaning of Section 8 (b)
(4) (A) of the Act. In this connection, the Trial Examiner specifically concludes
that:
(1) By such picketing, Respondents Meat Cutters and Clerks induced and en-
couraged the employees of Ohio, Kraft, and Pierre to engage in a concerted refusal
in the course of their employment to perform services, i. e., to deliver merchandise
to Euclid.
(2) By such picketing, said Respondents Meat Cutters and Clerks and Respond-
ent Frank Cimino, as their agent, also -induced and encouraged the employees of
Cleveland, Central, Vernor, Beverages, Coca-Cola, Birely, and Canada to engage in
a concerted refusal in the course of their employment to perform services, i. e., to
refuse to repair Euclid's truck in the case of Central's employees and to refuse to
deliver merchandise to Euclid in the cases of the employees of the other named
secondary employers.
(3) An object of said Respondents in each of the aforesaid cases was to force or
require each of the employers of the said employees to cease doing business with
Euclid.
(4) By the aforesaid acts, said Respondents committed unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Act.
The Trial Examiner further finds and concludes that by Frank Cimino' s oral re-
quests to employees of Central that they refuse to repair Euclid's truck, and to
employees of Cleveland, Vernor, Beverages, and Coca-Cola that they refuse to de-
liver merchandise to Euclid, Respondents Clerks and Meat Cutters and Respondent
Frank Cimino, as their agent, induced and encouraged the employees of these em-
ployers to engage in a concerted refusal to perform said services in the course of
their employment with the object of forcing and requiring these employers to cease
doing business with Euclid, and that these Respondents thereby also committed un-
fair labor practices within the meaning of Section 8 (b) (4) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the employers set forth 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 com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents engaged in activities violative of
Section 8 (b) (4) (A) of the Act, it will be recommended that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
21 See section III , A, 2, above.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Those of the employers whose businesses are described in section I of this
report and who are therein referred to as Forest City, Cleveland, Central, Ohio,
Kraft, Pierre, Beverages , Vernor, Birely, Canada , and Coca-Cola, are employers
engaged in commerce within the meaning of the Act.
2. Commission House Drivers, Helpers, and Employees Local No. 400, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America, AFL-CIO (herein called the Teamsters ), Retail Food Clerks Local No.
880, Retail Clerks International Association , AFL-CIO ( herein called the Clerks),
and Amalgamated Meat Cutters & Butcher Workmen of North America, Local No.
427, AFL-CIO (herein called the Meat Cutters) are labor organizations within
the meaning of Section 2 (5) of the Act.
3. By inducing and encouraging employees of Forest City to engage in a con-
certed refusal in the course of their employment to perform services, an object of
such concerted refusal being to force and require their employer to cease doing
business with Euclid Foods, Incorporated , Respondents Teamsters and Michael
Rini and William Sauerheimer ( as its agents ) and also Respondents Clerks and
Meat Cutters and Norman Rogers and Frank Cimino (as their agents ), engaged
in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act.
4. By inducing and encouraging employees of Ohio, Kraft, and Pierre to engage
in a concerted refusal in the course of their employment to perform services, an
object of such concerted refusal being to force and require their respective em-
ployers to cease doing business with Euclid Foods, Incorporated , Respondents
Clerks and Meat Cutters engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
5. By inducing and encouraging employees of Cleveland, Central, Vernor, Bev-
erages, Coca-Cola, Birely, and Canada to engage in a concerted refusal in the
course of their employment to perform services, an object of such concerted refusal
being to force and require their respective employers to cease doing business with
Euclid Foods, Incorporated , Respondents Clerks and Meat Cutters and Frank
Cimino ( as their agent ) engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
[Recommendations omitted from publication.]
Chock Full O'Nuts and United Bakery, Confectionery, Cannery,
Packing and Food Service Workers Union of New Jersey, Local
262, RWDSU, AFL-CIO, Petitioner . Case No. 2-RC-8684.
June 13,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Aaron Weissman, 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 Murdock and Jenkins].
Upon the entire record in this case, the Board finds:
1. The Employer owns and operates a coffee plant in Brooklyn,
New York, a commissary and bakery in Harrison, New Jersey, and 26
118 NLRB No. 21.