Drivers Local 695

National Labor Relations Board - Board Decisions

Feb 25, 1969

174 N.L.R.B. 753 (N.L.R.B. 1969)

DRIVERS LOCAL 695 753
Drivers, Salesmen , Warehousemen , Milk Processors,
Cannery, Dairy Employees and Helpers Union
Local 695, IBT , and its Agents Donald Eaton and
Eugene Machkovitz and Tony Pellitteri Trucking
Service, Inc.
Drivers, Salesmen , Warehousemen , Milk Processors,
Cannery , Dairy Employees and Helpers Union
Local 695 , IBT, and its Agent Donald Eaton and
Tony Pellitteri - Trucking Service Inc. Cases
30-CC-82 and 30-CB-212
February 25, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On October 14, 1968, Trial Examiner Milton
Janus issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
With respect to certain other unfair labor practice
allegations, he recommended that they be dismissed.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications.
The Trial Examiner found that picketing at
University Hospital on May 10 and 11, 1968, and at
Decar Plastics on May 13, at times when no
Pellitteri nonstriking employees were present
violated Section 8(b)(4)(i)(B) of the Act. The
General Counsel excepts to the Trial Examiner's
failure to find that the oral inducements by
Respondent's pickets which occurred at those
locations further violated Section 8(b)(4)(i)(B) of the
Act. We find merit in the General Counsel's
exceptions.
The record shows,. as set out more fully in the
Trial Examiner's Decision, that at the University
Hospital on May 10, picket Cowell sought out
Hacker, the business agent of the Wisconsin State
Employee Association Union, which represents the
University Hospital employees, and asked him if the
Association would honor Respondent's picket line.
Hacker told Cowell he would contact McConnell,
the president of his local, and have McConnell
instruct the membership to honor the picket line.
This was done. Later in the day, a truck from the
University Hospital carrying oxygen pulled up to the
entrance where Respondent's pickets were, and one
of the pickets twice called out, "If you're a union
member, keep on going" (i.e., do not enter). On
May 11, Cowell called McConnell and told him that
a University rubbish truck did not honor the picket
line on the previous day and McConnell promised to
look into the matter and talk with the driver.
Decar Plastics has two plants, designated as Plant
1 and 2. As employee Ellis approached Plant 2 on
May 13, a picket, identified as Cowell, who was
near the employee entrance to the plant, told Ellis
he was crossing Respondent's picket line and asked
Ellis to honor the picket line. That same day at
Plant 1, employee Orth, as he attempted to enter at
the employees entrance, in the presence of other
employees was asked by Respondent's pickets to
honor the picket line. Orth, who was a steward at
Decar, decided to wait until the other steward
arrived before he made any decision. When the
other steward arrived, the pickets again requested
that the Decar employees honor the picket line.
After the Decar manager arrived at Plant 1, the
pickets again stated that they wanted Decar
employees to honor their picket line.
It is clear that Respondent did not have a dispute
with either University Hospital or Decar Plastics at
the time of the above-related oral inducements, and
that such conversations between Respondent's
pickets and employees of University Hospital and
Decar Plastics did constitute oral inducements in
violation of Section 8(b)(4)(i)(B) of the Act.
The General Counsel also excepts to the Trial
Examiner's further finding that Respondent did not
violate Section 8(b)(4)(i)(B) in picketing or in the
conversations that occurred at Kohl's University
Avenue store on May 6. The record shows that at
the time a Pellitteri truck was present, picket
Severson asked Latchford, a produce clerk at
Kohl's, "if we could honor their picket line ... and
he wanted to know if we could keep Pellitteri from
picking up . . ." Severson also asked if everybody in
the store was unionized and on receiving an
affirmative reply, asked if Kohl's employees would
honor a picket if it were set up in front of the store.
Latchford replied that they could not "without our
representative telling us to."
Contrary to the Trial Examiner, we find that
Severson's continuing requests of Latchford
represented a clear oral inducement of Kohl's
employees to engage in a strike or refusal to
perform services in violation of Section 8(b)(4)(i)(B)
of the Act.
174 NLRB No. 115
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner's Conclusions of Law and
Recommended Order adequately cover the
additional violations found. However, as Donald
Eaton and Eugene Machkovitz are admittedly
agents of Respondent, were alleged as such in the
complaint, and were found to be responsible for the
unlawful conduct herein found, our order against
Respondent will be expanded to include its named
agents, Donald Eaton and Eugene Machkovitz.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that Respondent,
Drivers, Salesmen, Warehousemen, Milk
Processors, Cannery, Dairy Employees and Helpers
Union Local 695, IBT, Madison, Wisconsin, its
officers, agents, and representatives, including
Donald Eaton and Eugene Machkovitz, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified.
Add to the Notice marked "Appendix"
appropriate lines below that of the lined space to be
signed by the representative of the Respondent
Union for the signatures of Respondent's agents,
Donald Eaton and Eugene Machkovitz, and the
date.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MILTON JANUS, Trial Examiner: Original and amended
charges were filed on May 14 and May 28, 1968, by Tony
Pellitteri Trucking Service, Inc. (Pellitteri), in Case
30-CC-82. A complaint based thereon was issued on June
7, 1968,' against the-Respondent (also referred to at times
as the Union or Local 695) alleging that it had violated
Section 8(b)(4)(B) of the Act by picketing and threatening
to picket neutral employers, and by inducing neutral
employees to honor its picket line, with an object in both
cases of forcing the neutral employers to cease doing
business with Pellitteri.
A charge was also filed on May 27, by Pellitteri against
Local 695 in Case 30-CB-212. On June 26, the Regional
Director issued a complaint based thereon, alleging that
certain acts of striking Pellitteri employees against
nonstriking employees violated Section 8(b)(1)(A) by
restraining and coercing the latter in the exercise of their
right not to join the strike. The two complaints were
consolidated for hearing on June 26.=
I conducted a hearing in this matter at Madison,
Wisconsin, on July 22 through 24, 1968. Briefs have been
received from the General Counsel, Respondent and
'All dates hereafter are in 1968 , unless otherwise specified
'Also consolidated with these two was a third case, in which Local 695
was the charging party , and Pellitteri the Respondent . That case,
30-CA-794, was disposed of before the opening of the hearing by an
informal settlement agreement , and I severed , on the General Counsel's
motion and without opposition by any party, Case 30-CA-794 from the
other two cases which were the subject of the instant hearing.
Charging Party, and have been fully considered.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
L JURISDICTIONAL FACTS
Pellitteri is a Wisconsin corporation engaged at
Madison, Wisconsin, in furnishing trash pickup and
removal services. During the past calendar year, which is
a representative period, Pellitteri received in excess of
$50,000 for services performed for enterprises located in
the Madison area, each of which annually shipped or
received goods and materials to or from points located
directly outside the State of Wisconsin, valued, in excess of
$50,000. I find that Pellitteri is an employer engaged in
commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor
organization within the meaning of the Act.
IIL THE UNFAIR LABOR PRACTICES
Background and Issues
Pellitteri provides a trash removal service in and around
Madison, Wisconsin, mainly for commercial, industrial
and institutional customers. On May 6, 1968, most of the
Pellitteri drivers and helpers went out on strike, pursuant
to a call from their certified representative, Teamsters
Local 695. Pellitteri continued to operate, using
supervisors, newly hired employees and nonstrikers.
During the course of the strike, which was still in progress
late in July 1968, when this hearing was held, there
occurred a number of incidents involving the strikers on
the one hand, and nonstrikers, Pellitteri customers and
their employees on the other
The complaint in Case 30-CB-212 alleges the
commission by agents of Local 695 of various acts
directed against Pellitteri employees and applicants for
employment, which restrained and coerced them in the
exercise of their right, guaranteed by Section 7 of the Act,
not to join the strike. The complaint in Case 30-CC-82
alleges that agents of Local, 695 threatened to, and did
picket Pellitteri customers to force them to cease doing
business with Pellitteri, and also picketed their premises at
times when Pellitteri trucks and employees were not
present, in order to induce the employees of the customers
not to perform services for them.
Respondent concedes that some of the conduct of the
strikers would constitute violations of Section 8(b)(1)(A)
and 8 (b)(4)(B) if it had been ratified, approved, condoned
or directed by its agents. It specifically contends, however,
that none of the strikers were its agents , and that Eaton
and Machkovitz, officials of the Union and purportedly its
only agents, directed strikers not to engage in violence or
to appeal for a total strike of secondary employees, and
that whenever such conduct occurred, the agents expressly
repudiated it and directed the strikers not to repeat it.
Moreover, as to most of the incidents alleged to be
violative of Section 8(b)(4)(B), Respondent contends that
they were, in effect, attempts to perfect its primary strike
against Pellitteri, and that it could lawfully bring direct
DRIVERS LOCAL 695 755
pressure to bear against secondary employers and their
employees to halt trash removal by Pellitteri at the
premises of the secondary employers.
Description of Pellitteri's Operations
Customers store their trash in metal containers, owned
by Pellitteri but physically located on their own premises.
The containers are of various capacities, ranging upward
from 1 cubic yard. Except for a 30 cubic yard container
on the premises of the hospital operated by the University
of Wisconsin, which is loaded on a flatbed truck and
hauled away when it is filled with trash, the other
containers can be lifted by winch at the customers'
premises, and their contents emptied into dump trucks.
Trash pickups are made on scheduled routes and at
scheduled intervals, sometimes daily, but more usually two
or three times a week, depending on the number and size
of the containers and the amount of trash generated by
the customer.
The dump truck is driven onto the customer's premises
or on a public street where the containers can be emptied.
A pickup may take anywhere from 15 to 45 minutes,
depending on the number and size of the containers. At
some of the food stores which Pellitteri services, trash is
kept in a bin or room inside the store, which can be
opened from the outside and then loaded into a dump
truck.
Alleged Violations of Section 8(b)(l)(A)
1. The first day of the strike, May 6, 1968, the strikers
gathered at the entrance to the Pellitteri property where
its office and garage are located Schiller, a mechanic for
Pellitteri, did not join the strike and when he reported for
work that morning he discovered that the keys to the
trucks were missing from the place where they were
usually kept in the garage. He went outside to ask the
pickets about the keys, and accused Severson, a striker,
with having taken or hidden them. Severson denied it and
as Schiller turned around to go back to the shop, he heard
a sound of something being hit. He started to walk in the
direction of the sound, and as he turned he saw Severson
also turn around and walk back into the crowd. Schiller
walked over to his car and saw that it had been freshly
hit, making a dent on its trunk.
2. On May 8, in response to a newspaper
advertisement, Richard Storkson came to the Pellitteri
premises to apply for a job. Storkson was acquainted with
Cowell, one of the strikers who was then picketing, and
asked him what was going on. Cowell said there was a
strike on, and Storkson said he had seen the "help
wanted" ad, and was going in to see about a job. As
Cowell was telling him that he would have to go through
the picket line to get through the office, other strikers
started to approach them. According to Storkson, he
decided that rather than argue or fight about it, he would
not apply just then. Later, he called the office and made
an appointment to be interviewed. He came in the next
day and was hired as a helper on a truck making trash
pickups.
3(a) The day after, Storkson started to work for
Pellitteri. He was working with Schiller who was regularly
the shop mechanic but who was then working as a driver.
They had gone to University Hospital to load up the big
trash container on the flatbed truck for emptying at the
dump. While at the hospital, they were being picketed by
some of the strikers. Storkson heard Cowell tell Strait,
another striker, that they were going to have to start
following these guys horrte. At the end of the day,
Storkson returned to the Pellitteri garage to get his car
and drive home. As he left the parking lot to pull out into
the highway, he saw five or six men get into a light green
Chevrolet and take off after him. They followed him
closely all during the 8-mile trip to his home, and at one
point, on a narrow road leading to a single lane bridge,
attempted to crowd him off the road. When he got to his
house, they were right behind him. He got out of his car,
picked up a stick and told them to come at him one at a
time. He identified those in the car as French, Kolesar,
Strait, Cowell and Severson, all of them strikers. They
continued to sit in their car, screaming and waving their
fists at him.
(b) On May 23, Robert Varholik, who had been hired
during the strike, was driving a Pellitteri trash truck. He
had stopped at the Monona Grove Shopping Center for a
pickup when one of the pickets in the car which had been
following his truck that day, came up and engaged him in
conversation. The picket asked him his name, asked him
what a tire wrench on the outside of the truck was for,
asked him whether he thought he was tougher than 'him,
where he drank, where he lived, and asked him if he
would like to have a fight with him. Varholik's impression
from the questions, particularly that about where he lived,
was that the picket was going to follow him home after
work.
(c) On June 3, Laverne Zimmerman, a helper on a
Pellitteri truck, was followed as he left work for home by
three strikers, French, Strait and Severson, driving a
green Chevrolet. They followed his car for 2 miles or
more, but after he made a turn he did not see them again.
They did not yell at him or make any threatening
gestures.
4(a) On May 28, about 2 p.m., Varholik and Tony
Pellitteri were cleaning out an incinerator at Eagle Food
Store. They had been followed earlier by four or five
pickets in a green Chevrolet which then parked behind
their truck. Varholik happened to look around and saw
the green car start up, and saw an arm extended from a
rear window. When they got to the truck they saw that it
had been spattered with eggs.
(b) The same day, Schiller was driving a Pellitteri truck
back from the city dump. While there he had noticed the
green Chevrolet used by the strikers. As he was returning
from the dump, he noticed the same car pulled off on the
side of the road with Cowell, Strait and Severson standing
around it. As he passed the car he could see something
being thrown at his truck. They were eggs which struck
the truck's windshield and righthand side door.
5. There are two other incidents relied on by the
General Counsel as additional violations of Section
8(b)(l)(A). One involves Varholik and Swanoski,
nonstriking employees, on May 23. They had made a
wrong turn while being followed by a carload of pickets.
Varholik, who was driving, wanted to back up his truck
but was unable to do so for a few minutes because the
pickets' car was directly behind him. He was however,
able to go forward which would have meant a few
additional turns When the pickets saw Varholik pick up
the microphone for his two-way radio, the driver backed
up his car so that Varholik could also back up.
Swanoski, who had been Varholik's helper, decided that
day to quit his job because he was dissatisfied with the
pay, but he had told no one at the Company about his
decision. The next day, May 24, he did not go into work.
As he was walking with his wife on a Madison business
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
street, a green Chevrolet with five or six strikers pulled up
alongside them. One of the strikers asked him if he was
working, and Mrs. Swanoski then said that her husband
had quit. The striker then said to Swanoski that he had
better quit if he knew what was good for him.
Alleged Violations of Section 8(b)(4)(B)
1. Threats to Secondary Employers
Eugene Machkovitz, a business representative of Local
695 and one of its admitted agents, was the official
immediately in charge of the strike, under the general
direction of Donald Eaton, the Union's chief executive
officer. In the first few days of the strike, Machkovitz
took certain action with respect to some of Pellitteri's
larger customers, designed to bring pressure to bear on
Pellitteri to settle the strike.
(a) On May 6, the day the strike began, Machkovitz
called Roger Fish, president of Fish Building Supply
Company, and asked for his cooperation in the Union's
strike against Pellitteri. Fish asked him what he meant by
cooperation and, according to Fish, Machkovitz answered
that Fish knew what he meant. Fish said he considered
that what Machkovitz meant was that his company would
be struck unless he stopped using the Pelhtteri service.
The materials yard which Fish operates has 15 to 20
Pellitteri trash containers around its premises. The next
day, May 7, a Pellitteri truck arrived at the Fish premises
to empty these containers. While it was in the yard, a car
drove up and parked near the main gate. Two men got
out with picket signs, and one began picketing at the exit
gate and another at the entrance gate.' The pickets did not
seek to enter the yard itself. The Pellitteri truck remained
on Fish's premises for about 30 minutes, and after it left,
the pickets remained at their posts for another 15 minutes.
This was apparently the only day that any picketing
occurred at Fish.
On May 10, Machkovitz wrote Fish a letter saying that
the Pellitteri containers would be picketed as long as they
remained on the Fish premises or until the strike was
settled. On May 13, Machkovitz again telephoned the
Fish offices and told its corporate secretary that if the
containers were not removed he would put a full-time
picket at the yard.
(b) Machkovitz had two telephone conversations with
John Mayer, the manager of Wisconsin Telephone
Company at Madison. On May 13, Machkovitz told him
that unless the Pellitteri containers were removed from its
premises, it would be picketed the next morning. Mayer
said he would find out if the telephone company was in
fact using Pellitteri for trash removal. Mayer called him
back that afternoon but was unable to reach him. The
next morning, Machkovitz called Mayer again and this
time offered another alternative to being picketed. He said
that picketing would start later that morning unless
Mayer agreed either to remove the containers from its
premises, or agreed not to use them if they remained there
physically. Mayer, however, continued to use the Pellitteri
service, including the containers, and no picketing ensued.
(c) On two occasions between May 6 and 10, strikers
who were following the Pellitteri trucks began picketing at
The legends on the picket signs read as follows. On one side,
"Employees of Tony Pellitteri Trucking Service, Inc , on Strike Teamsters
Local 695 " On the other side , it read, "Our only dispute is with Tony
Pellitteri Trucking Service , Inc , Teamsters Local 695 " The signs at all
the sites picketed by Pellitteri strikers were identical
the premises of Madison Gas and Electric Company.
James Day, a storekeeper for Madison Gas, told the
Pellitteri driver to discontinue unloading the container and
then asked the pickets to leave the Company's property.
On May 10, Machkovitz sent Madison Gas a letter
advising it that it would be picketed as long as the
Pellitteri containers remained on its premises, and on the
same day he called Day to learn if the containers were
still on its property.4 When Day said they were,
Machkovitz said that unless they were removed by the
following Monday morning, the Union, would place a
picket line at each of the gates at the property where the
buckets were located. The Pellitteri buckets or containers
were removed by Madison Gas before that Monday
morning.
(d) On May 10, Machkovitz telephoned Decar Plastics,
a Pellitteri customer, and in the absence of the manager,
Richard Dahmen, asked his secretary to advise Dahmen
that unless the Pellitteri trash containers were removed,
the Decar premises would be picketed.' Machkovitz
confirmed this advice in a letter to Decar sent the same
d ate.
(e) The system for collecting and removing trash is
somewhat different at University Hospital than at other
Pellitteri customers. Hospital employees bring trash in
carts to a receptacle, called a loader, which is
mechanically driven into a 30 cubic yard container, called
a packer. The packer is normally filled up about every
third day. It is then placed on a flatbed truck which takes
it to the dump, empties it and returns it to the hospital.
The loader had been designed and was then owned by
Bates Equipment Company which had lent it to the
hospital on a trial basis . The packer and the flatbed truck
were owned by Pellitteri.
On Thursday evening, May 9, although the packer was
full it had not been removed for dumping, and Pellitteri
had brought in one of its regular dump trucks to serve as
a temporary container. The next afternoon, May 10, three
strikers carrying picket signs appeared at the hospital and
proceeded to stand or walk about on the sidewalk near the
entrance to the hospital's parking lot. The nearest access
to the packer and the truck were at this entrance. When
the pickets arrived, and for about 2 hours thereafter, there
were no nonstriking Pellitteri employees present at the
hospital
Vernon, an attorney employed by the State of
Wisconsin to handle employment relations, called Eaton
of Local 695 to find out about the picketing. The result of
their conversations that afternoon was that the hospital
promised to have the Pellitteri truck removed as soon as
possible, and to try to get someone other than Pellitteri to
handle the 30 cubic yard packer. Eaton said that he would
remove the pickets if that were done. About 3:30 p.m.,
Pellitteri brought someone out to remove the truck, but
the packer itself was not moved. Pellitteri employees were
on the premises for about 15 minutes, but after they left,
the pickets stayed at the parking lot until about 5.30 p.m.
The next morning, the pickets returned to the hospital
area. Bucklew, the university's labor relations officer,
called Eaton about 9 a.m. to ask him why the picketing
had been resumed since there were no Pellitteri trucks or
employees on the premises. Eaton said there must be a
mixup, and asked to speak to one of the pickets. After he
'The letter, General Counsel 's Exhibit 5, shows that Madison Gas did
not receive it until May 13
'The two plants of Decar were in fact picketed on May 13 The
picketing is described in the following section of this Decision
DRIVERS LOCAL 695 757
did so, the picket told Bucklew that they would leave, but
would return whenever a Pellrtteri truck or employee
appeared.
(f) On May 20, the Union impliedly abandoned its
previously expressed intention to picket at the premises of
Pellitteri customers where there were containers.
Machkovitz sent letters to all the customers whom he had
earlier advised of the Union's alleged right to picket them,
as well as to Pellitteri and its attorney, stating that the
Union would not, by picketing, induce their employees,
customers or suppliers to terminate their relationship with
the Pellitteri customer because the customer in turn
maintained a business relationship with Pellitteri. The
letters then continued as follows:
However, we shall continue to maintain economic and
psychological pressure on Tony Pellitteri Trucking
Service, Inc., by picketing his vehicles wherever they
might be. As long as Pellitteri vehicles are at your
premises, we will picket in the vicinity of the vehicle,
and the pick-up station. When Pellitteri leaves the
location, we shall leave also. Section 7 of the National
Labor Relations Act affirmatively protects this course
of conduct.
2. Inducements of employees of secondary employers
(a) University Hospital: About noon an May 10, striker
Cowell went to the office of the Wisconsin State
Employees Association, whose Local 171 represents
University service employees, to ask for its cooperation in
honoring their picket line. Hacker, a field representative
of the Association, to whom Cowell spoke, said he
thought they would do so. Hacker then called Bucklew,
the labor relations officer for the University, and
McConnell, the president of Local 171. Hacker told
McConnell to inform their members to keep out of the
area where the picketing would be going on. Hacker then
went out to see and talk to the pickets. He asked them
how long they would be there, and one of them said they
would picket in front of the hospital as long as the
Pellitteri truck was there. About this time, a University
truck carrying oxygen for the hospital drove up to the
entrance, and one of the pickets shouted at him, "If
you're a union member, keep on going."
At 3:30 p.m. that day, McConnell spoke to about 25
employees of the University, all of them members of
Local 171, and told them that he thought they should
honor the picket line at the hospital service entrance
because of the possibility of disturbances or physical
harm, but that they could use entrances to the hospital
other than the loading dock. These other possible
entrances were much less convenient for the functions to
be performed at the hospital by its employees. As I have
noted previously, there were no nonstriking Pellitteri
employees on the hospital grounds that afternoon except
for a 15-minute period when two of them came to move
the truck which was then serving as an auxiliary
container.
The next morning, Cowell called McConnell to
complain that a University trash truck servicing the
hospital had failed to honor the picket line. McConnell
promised to check into it and to have a talk with the
driver.
(b) Decar Plastics: This company has two plants near
Madison, about a mile apart On Monday morning, May
13, two pickets appeared at plant I shortly before 7 a.m.,
when employees begin work. Decar's employees are
represented by a union, and when one of the stewards saw
the pickets he went over to speak to them, together with
other plant employees. The pickets told them they were on
strike against Pellitteri, a fact already evident from their
picket signs, and asked them to honor their picket line.
Orth, a steward at plant 1, testified that the pickets were
on a public street in line with the employees' entrance.
The two Pellitteri trash containers are on the outside of
the plant about 50 feet from the employee entrance. The
pickets also told the stewards and other employees at
plant 1 that they had no dispute with Decar and only
wanted to prevent Pellitteri from removing the trash from
Decar's premises. The stewards were reluctant to tell the
employees what they ought to do until they had spoken to
an official of their union, and by the time they got in
touch with • him many of the employees had refused to
start their work. The advice they got from their
representative was to cross the picket line but not to carry
their trash baskets out to the Pellitteri containers as they
normally did. No Pellitteri truck was at the plant that
morning while the pickets were there, nor was any pickup
of trash scheduled for that day
At plant 2, picket Cowell asked employee Ellis, as he
was preparing to enter the plant, not to cross their picket
line. Ellis testified that the pickets were in front of the
employee entrance and about 150 feet from the Pellitteri
containers. No Pellitteri truck was there at the time.
(c) Kohl's Food Markets: On May 6, the first day of,
the strike, two pickets appeared at the rear of Kohl's store
on University Avenue while a Pellitteri truck was making
a pickup. Severson, one of the pickets, asked a clerk who
was there if the store employees were union, if they would
honor their picket line, and if the employees would stop
Pellitteri from making its trash pickups. The clerk was
noncommittal, and the pickets apparently left when the
Pellitteri truck did.
On May 13, 14 and 15, there was picketing at a Kohl
store at the corner of Winnebago and Milwaukee Streets
in Madison. There are customer entrances facing both
streets, but these entrances to the store are not flush with
the streets since a parking area surrounds the store. There
is also a rear entrance on Milwaukee Street where the
trash pickups are made, about 100 yards from the front,
or customer, entrance. On May 13 and 14, the pickets
walked at the entrance to the parking area closest to the
public entrances. No picketing took place at or near the
rear entrance on Milwaukee Street even though a
Pellitteri truck was there at the time making a pickup.
The next morning, picketing again took place near the
two customer entrances at times when no Pellitteri truck
or nonstriking employees were present. While the pickets
were there, a truckdriver delivering goods to Kohl asked
the assistant store manager whether he should honor the
picket line since one of the pickets had asked him not to.
The assistant manager told him to call his' dispatcher, and
thereafter he completed his delivery.
Responsibility of Local 695 for Acts of Strikers
On May 6, about eight of the Pellitteri employees went
on strike and began picketing at the Pellitteri yard. Two
or three soon got other jobs or otherwise abandoned the
strike, while the remaining five or six continued to picket
the Pellitteri premises, follow the trucks to customers'
premises and to engage in those acts alleged to be
violative of Section 8(b)(1)(A) and 8(b)(4)(B). With so
small a group of active strikers there was little need for
any specific formal organization or control of their
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities. No strike committee or picket captain was
appointed. Local 695 furnished them with picket signs,
paid them strike benefits of $30 per week, and issued
instructions through Machkovitz, the agent in charge. The
pickets were in frequent touch with him either by
telephone or in person, both at the Union's office and at
the picket line. When some of the pickets were arrested on
May 28, charged with throwing eggs at a Pellitteri truck,
the Union provided counsel for them and arranged for
their release. Whenever something novel came up, as at
the University Hospital, either Eaton or Machkovitz were
available for consultation, while the pickets considered
their instructions to be binding.
The Union argues that it was not responsible for any
illegal conduct of which the strikers may have been guilty.
It admits that the appeals of strikers to employees of
Decar and University Hospital not to cross their picket
line would be in violation of Section 8(b)(4)(B), while its
failure to present any argument in its brief as to the
conduct alleged to be in violation of Section 8(b)(1)(A)
implies abandonment of any defense on that score.
Nonetheless, the Union contends that it did not ratify,
approve, condone or direct any action of the strikers
which might be violative of the pertinent paragraphs of
Section 8(b), that in fact, it expressly directed them not to
engage in violence or to appeal for a total strike of
secondary employees.'
I find the Union's argument unpersuasive. I note, first
of all, that under Section 2(13) of the Act the fact that the
specific acts performed by the pickets may not have been
actually authorized nor subsequently ratified by the Union
is not controlling in determining whether the Union was
responsible for their actions.
Secondly, the wishes of Machkovitz and Eaton, no
matter how often brought to the attention of the pickets,
that they comport themselves without transgressing the
provisions of the Act, does not absolve the Union from
responsibility for such violations. The attorney for
Pellitteri advised the Union on May 10 of improper
conduct committed by the pickets (General Counsel's
Exhibit 2); Machkovitz and Eaton were specifically
advised by responsible officials of the State of Wisconsin
and the hospital on May 10 and 11 of the appeals to
hospital employees; the pickets frequently reported to
them on what they were doing and sought their advice;
and on May 28, the Union assisted Strait after his arrest
for the egg-throwing incident. The Union was thus fully
aware of the conduct of the pickets, yet it took no
effective action to curtail it and imposed no restriction or
penalty on the perpetrators. "Merely forbidding coercive
conduct will not suffice to relieve of responsibility
therefor."'
The Union argues that the General Counsel is in effect
demanding that any picket who may have committed an
act in violation of Section 8(b)(1)(A) should be barred
from further picketing. It points out that in this case it
would force the Union to abandon its strike. Of course,
'The Union does not deny its responsibility for the decision announced
by Machkovitz to Pellitteri customers to have the strikers picket the
containers on the premises of the customers while no Pellitteri employees
or trucks were present , which was in effect between May 10 and 20 The
issue whether Machkovitz' oral statements and letters to the customers and
the subsequent picketing of the customers was violative of Section
8(bX4)(B) will be considered in the following section of this Decision
'Teamsters Local 783, 160 NLRB 1776, 1779 See also, Teamsters Local
115, 157 NLRB 1637, 1642, United Automobile etc Workers of America,
AFL-CIO, 146 NLRB 1349 , 1356, and New Power Wire and Electric
Corp v N.LRB , 340F .2d71(CA 2).
no such contention has been made, and all that the
General Counsel proposes, and all that I hold, is that a
union which calls a strike and authorizes picketing must
retain control over the pickets in whatever manner it
deems necessary, in order to insure that they do not act
improperly. If a union is unwilling, or unable, to take the
necessary steps to control its pickets, it must then bear the
responsibility for their misconduct.
I have considered the cases which Respondent cites in
its brief to support its contention that it was not
responsible for the illegal conduct of the pickets. Insofar
as they are apposite to the facts in this case, they support
the General Counsel's opposing contention, and my own
conclusion, that the Union was responsible for the entire
course of conduct engaged in by the pickets
Concluding Findings
Section 8(b)(1)(A) makes it an unfair labor practice for
a labor organization or its agents to restrain or coerce
employees in the exercise of the rights guaranteed in
Section 7, among which is the right not to join a strike in
which other employees participate. I shall consider the
various incidents alleged to be violative, in the order in
which I have already set them out previously, without
repeating the facts which are in effect admitted by
Respondent.
1. Throwing something at Schiller's car, May 6.
Although Schiller did not actually see Severson or anyone
else throw anything, I am satisfied and find that one of
the strikers threw the object which dented Schiller's car.
There is no question but that such an act has a coercive
and restraining effect on nonstrikers by its demonstration
of harassment and implied violence.'
2. Storkson's attempted job application on May 8.
Cowell told Storkson that he would have to pass the
picket line to get to the office, after Storkson said he was
going to apply for a job. At that point other strikers
walked up to them. The General Counsel argues that
Cowell's remark and the approach of the strikers was a
threat of physical harm. I do not agree. Cowell and the
other strikers were, of course, opposed to having Storkson
apply for a job as a replacement for them, but they had
not, from Storkson's own testimony, yet menaced him by
word or gesture. If they had prevented him from entering,
it would have been a violation of Section 8(b)(1)(A), but I
view Storkson's decision not to go past the pickets then,
as an exercise of discretion on his part (based perhaps on
his simultaneous decision to telephone for an
appointment) rather than as a response to a threat I shall
therefore recommend dismissal of that particular
allegation.
3. Threatening and following nonstrikers On May 9,
Storkson's first day on the job, a group of pickets
followed him home after he left work, and on June 3,
Zimmerman was also followed part way home On May
23, a picket questioned Varholik in an intimidating
manner about where he lived, and whether he wanted to
fight. I am satisfied that Varholik was being threatened by
the picket that he might be followed home and might
possibly have to fight before he got there. I find that all
three incidents were coercive of the rights of Varholik,
Zimmerman and Storkson, and of other Pellitteri
employees, and were violative of Section 8(b)(1)(A).
4. The egg-throwing incidents of May 28 No extended
discussion is necessary to conclude that throwing objects
'International Union of Electrical etc Workers, 134 NLRB 1713, 1723
DRIVERS LOCAL 695 759
at nonstriking employees while they ate driving or sitting
in vehicles is extremely dangerous and inherently coercive
of their rights. I find that the Union violated Section
8(b)(1)(A) when the strikers threw eggs at trucks which
were driven or controlled by Pellitteri employees.
5. On May 23, Varholik had some difficulty in backing
up his truck because a carload of strikers was behind him,
and on May 24, a striker told Swanosk i, who had already
decided not to go back to work for Pellitteri, that he had
better quit if he knew what was good for him. I am
dubious whether either of these incidents amounts to a
violation. As for Varholik's being blocked momentarily
from backing up, the fact is that he could have gone
forward without restraint or any particular delay. As for
any threat to Swanoski, the fact is that he was no longer a
Pellitteri employee, and had no intention of applying for
work when he was approached by the striker. Having
neither the status of an employee or an applicant, it seems
to me that the statement which was made to Swanoski
was not in fact coercive as to him. In any event, these two
incidents would be cumulative to the other findings of
violations I have already made, and would therefore not
affect the scope of my Order.
Section 8(b)(4)(B) prohibits unions or their agents from
inducing employees of secondary or neutral employers to
refuse to handle goods or perform services, and from
threatening, restraining or coercing secondary employers,
where an object is to force or require a secondary
employer to cease doing business with the primary or
disputing employer. As the Board and the courts have
repeatedly pointed out, these provisions are aimed at
shielding unoffending employers and others from pressures
in controversies not their own. But as the proviso to
Section 8(b)(4)(B) makes explicit, however, a primary
strike or primary picketing does not become unlawful by
virtue of anything contained in that section. In general,
union activity is primary when it occurs at the situs of the
main dispute, which is usually the primary employer's own
premises, and seeks no more than to disrupt the normal
operations of his business.' But when the activity is
extended beyond the situs of the primary dispute as to the
premises of a neutral employer, it is ordinarily
secondary ' °
The activities which are alleged in the complaint as
violative of Section 8(b)(4)(B) are the Union's threats to
picket, and the picketing which took place, at the premises
of secondary employers at times when no Pellitteri trucks
or nonstriking employees were present. The General
Counsel contends that an object of such activities was to
force or require the secondary employers to cease doing
business with Pellitteri.
The Respondent concedes that the pressure it brought
to bear against secondary employers was intended to
terminate the established business relationships between
Pellitteri and its customers. It argues, however, that such
pressures were imposed only in an effort to perfect its
primary strike against Pellitteri, by inducing employees of
the customers to cease performing any services related to
trash collection. It disavows any intent to induce
secondary employees to cease performing all services for
their employers; but it is entitled, it argues, to induce
secondary employees not to perform any services related
to trash collection, by the continuous posting of pickets
adjacent to the Pellitteri equipment, in readiness to force a
confrontation as to any activity related to trash collection.
As ` I understand the Union's argument, it is that the
situs of its dispute with Pellitteri is wherever Pellitteri
equipment is to be found, and that any secondary
employee whose work for his employer is related to trash
collection may properly be induced to cease such work.
The argument blurs the relatively simple distinction
between appeals to primary or secondary employees at the
primary employer's premises, and appeals to secondary
employees at the secondary employer's premises The
Union argues that it has a right to disrupt a business
relationship between a primary and a secondary employer
if the primary employer furnishes a service to the
secondary which requires the occasional presence of
primary employees on the latter's premises. The lending
or rental of equipment, accompanied by an obligation of
the lender to keep the equipment in operating condition, is
a common and well-recognized form of business
relationship - witness the rental and maintenance of data
processing equipment and photo copying machines - but
I do not think it can reasonably be said that such
equipment is the situs of dispute for a union which is
striking the owner-lessor of the equipment, at times when
it is being used in the normal course of the secondary
employer's business and is not being serviced by primary
employees. In this case, it seems to me, the sites of the
Union's dispute with Pellitteri is wherever Pellitteri
employees are engaged in carrying out their employer's
normal functions, that is, using dump trucks to remove
trash from their customers' premises." It is not the
containers into which secondary employees stow trash in
the course of their regular duties for their employers
which is the situs of the dispute, nor can the containers be
picketed as a symbol for the actual presence of primary
employees and their trucks.
I find, based on the undenied testimony related above
that the following actions occurred and were violative of
Section 8(b)(4)(ii)(B): the threats to picket Fish Building
Supply Company, Wisconsin Telephone Company,
Madison Gas & Electric, Decar Plastics and University
Hospital, unless they ceased using Pellitteri's 'trash
removal service. I also find, based on undenied testimony,
that the following actions occurred and were violative of
Section 8(b)(4)(i)(B): picketing at times when no Pellitteri
nonstriking employees were present, at Fish Building
Supply Company on May 7, at University Hospital on
May 10 and 11, and at Decar Plastics on May 13
Kohl's-Winnebago was picketed on May 13 and 14
when a Pellitteri truck was on the premises, but I find,
nevertheless, that the picketing was unlawful because it
took place at the store's public entrances which are
located about 100 yards from the service entrance where
the truck was parked. Picketing also occurred at this store
on May 15 when no Pellitteri truck or employees were
present, and is found to be unlawful.
Kohl's University Avenue store was picketed on May 6,
near the service entrance while a Pellitteri truck was
making a pickup. One of the pickets asked a store clerk if
'N L R B. v International Rice Milling Co .. 341 U S . 665, Local 761,
Electrical Workers v NL.R B (General Electric Corp ), 366 U.S 667,
and Steelworkers v N L R B. (Carrier Corp ), 376 U.S 492.
10NL R.B. v. United Brotherhood of Carpenters ( Wadsworth Bldg Co.),
184 F.2d 60 (C A 10), and N L R B v United Hatters etc . Union, 286
F 2d 950 (C.A 4).
"Teamsters , Chauffeurs & Helpers Union , Local 279 ( Wilson Teaming
Company ), 140 NLRB 164, 166-167, Local 25, International Brotherhood
of Teamsters, etc. (J. C. Driscoll Transportation, Inc ), 148 NLRB 845;
and National %faritime Union of America, AFL-CIO (Farmers Union
Grain Terminal Association ), 152 NLRB 1447, enfd 367 F 2d
171 (C.A 8)
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the store employees would honor their picket line, and
would stop Pellitteri from making trash pickups. I find no
violation of Section 8(b)(4)(B) either in the picketing or in
the queries
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with the operations of
the Company described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
and 8 (b)(4)(B) of the Act, I shall recommend that it cease
and desist therefrom , and that it take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. By restraining and coercing employees of Tony
Pellitteri Trucking Service, Inc. in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has
engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section
8(b)(1)(A) of the Act.
2. By inducing or encouraging individuals employed by
Fish Building Supply Company, Kohl's Food Stores,
University Hospital, and Decar Plastic Corporation to
refuse in the course of their employment to perform
services for their employers, and by threatening, coercing
and restraining Fish Building Supply Company, Kohl's
Food Stores, University Hospital, Decar Plastic
Corporation, Wisconsin Telephone Company and
Madison Gas and Electric Company, with an object in
either case of forcing each to cease doing business with
Tony Pellitteri Trucking Service, Inc., the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(b)(4)(i) and (ii)(B) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and the entire record in the case I recommend,
pursuant to Section 10(c) of the Act, that the Respondent,
Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local 695,
IBT, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Tony Pellitteri
Trucking Service, Inc., in the exercise of their right to
refrain from joining or supporting any strike called by
Respondent against the Company, by harming or
threatening to harm employees, or by damaging or
threatening to damage property.
(b) Inducing or encouraging any individual employed by
Fish Building Supply Company, Kohl's Food Stores,
University Hospital or Decar Plastic Corporation, or any
other individuals employed in an industry affecting
commerce, to refuse, in the course of their employment,
to perform any services, and from threatening, coercing or
restraining the named employers, and Wisconsin
Telephone Company, Madison Gas and Electric
Company, or any other person engaged in commerce or in
an industry affecting commerce, with an object in either
case of forcing or requiring all of the above, or any other
person or employer to cease doing business directly or
indirectly with Tony Pellitteri Trucking Service, Inc.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post in its offices and meeting halls copies of the
attached notice marked "Appendix."" Copies of such
notice, to be furnished by the Regional Director for
Region 30, shall, after being duly signed by an authorized
representative of the Respondent, be posted immediately
upon receipt thereof, and be maintamed by it for a period
of 60 consecutive days thereafter in conspicuous places,
including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
(b) Sign and mail sufficient copies of said notice to the
Regional Director for Region 30, for posting by Fish
Building Supply Company, Kohl's Food Stores,
University Hospital, Decar Plastic Corporation,
Wisconsin Telephone Company, Madison Gas and
Electric Company, and Tony Pellitteri Trucking Service,
Inc., such employers being willing, at all places where
notices to their respective employees are customarily
posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of receipt of this
Decision and Recommended Order, what steps the
Respondent has taken to comply herewith."
IT IS FURTHER RECOMMENDED that those allegations in
the complaints relating to incidents found herein not to
constitute violations of the Act be dismissed.
"In the event that this Recommended Order be adopted by the Board
the words "a Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice. In the further event
that the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "a Decision of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words "a Decision and
Order "
"In the event that this Recommended Order be adopted by the Board
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL MEMBERS OF DRIVERS, SALESMEN,
WAREHOUSEMEN, MILK PROCESSORS, CANNERY, DAIRY
EMPLOYEES AND HELPERS UNION LOCAL 695, IBT
Pursuant to the Recommendations of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify you that:
DRIVERS LOCAL 695
WE WILL NOT restrain or coerce employees of Tony
Pellitteri Trucking Service, Inc., in the exercise of their
right not to join or support any strike by us against
that Company, by harming or threatening to harm
them, or by damaging or threatening to damage
property.
WE WILL NOT induce or encourage any individual
employed by Fish Building Supply Company, Kohl's
Food Stores, University Hospital, or Decar Plastic
Corporation, or any other individuals employed in an
industry affecting commerce, to refuse in the course of
their employment to perform any services, nor will we
threaten, coerce or restrain the employers named above,
and Wisconsin Telephone Company, Madison Gas and
Electric Company, or any other person engaged in
commerce or in an industry affecting commerce, where,
in either case, an object is to force or require the
employers named above, or any other employer, to
761
cease doing business directly or indirectly with Tony
Pellitteri Trucking Service, Inc.
Dated By
DRIVERS , SALESMEN,
WAREHOUSEMEN, MILK
PROCESSORS , CANNERY,
DAIRY EMPLOYEES AND
HELPERS UNION LOCAL
695, IBT
(Labor Organization)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203 Telephone 272-3872, Area Code 414.