Drivers, Warehouse & Dairy Employees, Local 75

National Labor Relations Board - Board Decisions

Jun 10, 1969

176 N.L.R.B. 530 (N.L.R.B. 1969)

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers, Warehouse & Dairy Employees, Local No.
75 and Seymour Transfer, Inc. Case 30-CC-91
TRIAL EXAMINER'S DECISION
June 10, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 10, 1969, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief. The General
Counsel filed a brief in answer to the Respondent's
exceptions.
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 briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.'
ORDER
Pursuant to Section 10(c) of the National
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, Drivers, Warehouse & Dairy
Employees, Local No. 75, Green Bay, Wisconsin, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's
Recommended Order, as so modified:
Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and reletter paragraphs to
read 2(a), (b), and (c), respectively.
' For the reasons indicated in General Telephone Company of California,
151 NLRB 1490, In 4, Member Fanning would not adopt the Trial
Examiner 's finding that even if the Respondent had observed all of the
Moore Drydock standards in its picketing at premises of Seymour's
interlining carriers , its picketing lost the protection which it otherwise
might have had by the Respondent 's violative appeals to the carriers'
employees and threats to their employers
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Trial Examiner: The trial in this
proceeding, with all parties represented, was held before
me in Green Bay, Wisconsin, on September 17, 18, and
19, 1968, upon a complaint of the General Counsel,' dated
August 23, 1968,2 and respondent's answer.' In general,
the issue litigated was whether Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act, as amended (herein called the Act).
Particularly, the questions for decision are as follows:
1. Have the employers with whom Seymour Transfer,
Inc. (herein called Seymour), does business so conducted
themselves in connection with Respondent's strike against
Seymour as to become Seymour's allies in the context of
Section 8(b)(4)(B)?4
2. Did Respondent in support of its strike against
Seymour induce or encourage individuals employed by
persons with whom Seymour does business to refrain from
performing services for their respective employers?
Subsidiarily, did respondent engage in lawful ambulatory
or common silus picketing at premises of employers with
whom Seymour does business?
3. Did Respondent, in further support of its strike
against Seymour, threaten, restrain, or coerce persons who
do business with Seymour?
4. Assuming an affirmative answer to the propositions
included in question 2 or 3, above, did an object of
Respondent's conduct fall within the proscriptions of
Section 8 (b)(4)(B) of the Act?
Upon the entire record, upon my observation of the
witnesses and their demeanor while testifying , and upon
careful consideration of the arguments made and the able
briefs submitted by the General Counsel and respondent,'
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Seymour, a Wisconsin corporation whose principal
office and place of business is located in Seymour,
'The complaint was issued on a charge and an amended charge filed,
respectively , on July 31, 1968, and August 22, 1968, by Seymour Transfer,
Inc.
'All dates referred to in this Decision fall within 1968.
'During the trial the complaint was amended in several respects. Donald
Tilkens - Business Representative was added to the list of names and
designations appearing in paragraph 4. Paragraph 7 was amended to add
the following in the appropriate columns:
July 5, 1968 - Green Bay's Terminal - Blowhowiak -- Green Bay
July 25, 1968 - Green Bay's Terminal -- Gerstner Green Bay.
Paragraph 8 was amended to add , in like manner , the following:
Blowhowiak - July 11, 1968 -- Gateway.
Finally , paragraph 13 was amended by striking the word "and" between
the numerals " 10" and " II" and adding the expression "and 12" after the
numeral " II." Upon the amendment of the complaint as set forth above
the answer was amended to admit that Donald Tilkens is a business
representative and agent of respondent and to deny the complaint's other
revisions
'The subsequent questions are posed on the assumption that the
employees with whom Seymour does business have not allied themselves
with Seymour , but have remained in such a neutral status in the dispute
between Seymour and respondent as to be entitled to the protection
afforded by Section 8(b)(4XB ) of the Act.
'Seymour, the charging party, did not submit a brief
176 NLRB No. 69
DRIVERS , WAREHOUSE & DAIRY EMPLOYEES , LOCAL 75
Wisconsin, is engaged as a motor carrier of freight.
Although Seymour does not normally receive or deliver
goods outside the State of Wisconsin, it regularly
interlines freight with several interstate carriers.
Seymour's annual revenue from this portion of its business
exceeds $50,000. Accordingly, I find that Seymour is
engaged in commerce within the meaning of the Act and
that the assertion of jurisdiction over this matter by the
National Labor Relations Board (herein called the Board)
is warranted H P 0 Service, Inc., 122 NLRB 394, 395.
11. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of the Act.
Iii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with the measures
taken by Respondent in support of its strike against
Seymour and those taken by Seymour to avoid the
strike's impact on its business. Among the former are
Respondent's picketing at premises of carriers with whom
Seymour interlines freight,° appeals to employees of those
carriers to refrain from performing services for their
respective employers, and threats made to officials of the
carriers involved that this type of conduct would be
continued and intensified unless they stopped interlining
with Seymour. Among the measures taken by Seymour
are changes in the manner of passing freight between
Seymour and the interlining carriers.
The General Counsel contends that Respondent's
course of action respecting the interlining carriers and
their employees in support of its strike against Seymour
was violative of Section 8(b)(4)(B) of the Act.' Although
in its answer Respondent denies that it engaged in the
conduct broadly described above, it does not, as appears
from its brief, seriously stand on this denial. It argues,
rather, that the conduct was privileged on three grounds.
Thus, Respondent's principal position is that the carriers
with which Seymour interlines freight are not neutral to
its dispute with Seymour, but allies of Seymour.
Alternatively, Respondent contends that its picketing at
the premises of the interlining carriers was permissible and
in accord with the ambulatory or common situs doctrine
enunciated by the Board in Moore Dry Dock Company,
92 NLRB 547, 549. Finally, Respondent asserts, on brief,
that its appeals to employees of the interlining carriers not
to perform services "were not violations, for [Respondent]
was only advising its members [employed by the carriers]
of their legal rights."
'Interlining freight has been defined by the Board as "receiving freight
from interstate motor carriers for delivery to its destination, or delivering
freight to such carriers for further transportation ." McAllister Transfer,
Inc., 110 NLRB 1769, 1770. It has also been referred to in regulations
issued by the Interstate Commerce Commission . See 49 CFR 1051 I(b)
and 1052.3.
'Sec. 8(b)(4XB), commonly referred to as the Act's secondary boycott
provision , reads as follows:
Sec 8..
(b) It shall be an unfair labor practice for a labor organization or its
agents. .
(4Xi) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting commerce
B. Preliminary Facts and Conclusions
1. The strike at Seymour
531
On June 26 Respondent struck Seymour., In support of
its strike Respondent picketed at Seymour's Green Bay,
Wisconsin, terminal and at terminals of carriers with
which Seymour interlines freight.
2. The relationship between Seymour and the carriers
with which it does business
Seymour operates as a common carrier of freight in
accordance with certificates issued by the Interstate
Commerce Commission and the Wisconsin Public Service
Commission. Except with respect to some special
commodities, Seymour is authorized to serve a relatively
small quadrangular area in northeastern Wisconsin, the
points of which are Green Bay, Oshkosh, Wautoma, and
Stevens Point. Notwithstanding Seymour's limited
territorial authority some 65 percent of the freight which
it carries is consigned to, or shipped from, points outside
the area in which it operates. This is accomplished by
interlining with other carriers at Green Bay.
Under the interlining procedure prevalent in Green Bay,
the originating carrier, in its own equipment operated by
its employees, delivers the freight to be interlined directly
to the terminal of the destination carrier. There, unless the
trailer containing the freight is to be interchanged it is
jointly unloaded by employees of the two carriers. Each
interlining carrier receives a pro rata share of the total fee
charged for moving the freight from point of origin to
destination based on the distance of the carriage by each
participant.
As indicated above, not only do carriers in Green Bay
interline freight with each other, but they also interchange
trailers used for hauling the interlined freight. This is done
to eliminate the time and effort involved in unloading and
reloading freight when it is of such a volume as to occupy
an entire trailer. In such a situation the originating carrier
may turn over its full trailer to the destination carrier for
haulage to the delivery point. While there is an obligation
on the part of the destination carrier to return the trailer
thus used to the originating carrier as promptly as
possible after delivering the freight, the destination carrier
sometimes uses the trailer turned over to it for its own
purposes.'
The originating carrier may follow an alternative
procedure in connection with the interchange of trailers.
to engage in, a strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to perform any
services; or (ii) to threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where in either case an
object thereof is:
(B) forcing or requiring any person to cease using , selling , handling,
transporting , or otherwise dealing in the products of any other
producer, processor, or manufacturer, or to cease doing business with
any other person . . Provided. That nothing contained in this clause
(B) shall be construed to make unlawful, where not otherwise
unlawful , any primary strike or primary picketing;
'This strike appeared to have still been in progress at the time of the
trial
'As will appear below, a per diem charge is payable to the owner of the
interlined trailer if it is not returned within a certain period
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Instead of using its own equipment it may request the
destination carrier to furnish the trailer.'" Upon obtaining
the trailer the originating carrier takes it to the shipper's
premises for loading, following which it is returned the
destination carrier to be hauled, intact, to the point of
delivery.
The Interstate Commerce Commission has issued
regulations (49 CFR Part 1057) governing the interchange
of equipment between motor carriers The practice is also
the subject of a contract known as the National
Equipment Interchange Agreement (herein called
Interchange Agreement) to which a substantial number of
carriers are parties. This agreement sets forth the daily fee
payable by carriers using interchanged equipment beyond
specified initial days of grace for which no charge is
made. Disputes arising under the Interchange Agreement
are arbitrable by the Equipment Interchange Association,
a national trade association, which also promulgates rules
for the interchange of equipment.
The carriers with whom Seymour interchanges
equipment are parties to the Interchange Agreement
Although Seymour is not a signatory, when it participates
in a trailer interchange the provisions of the Interchange
Agreement are followed
Seymour does more interlining, and consequently
interchanges more trailers with Green Bay-Chicago Lines
(herein called G.B -C.), than with any other carrier. One
of the reasons for this, as G B.-C 's president suggested, is
G B -C 's active solicitation of shippers dealing with
Seymour whose freight is consigned to points beyond
Green Bay to instruct Seymour to interline with G.B.-C.
rather than its competitors. G.B.-C similarly solicits
shippers in localities served by other short line carriers.
Before Respondent struck Seymour, the movement of
freight between Seymour and its interlining carriers in
Green Bay followed the procedure described above.
Because drivers employed by those carriers refused to
cross Respondent's picket line at Seymour's Green Bay
terminal and because they wanted to avoid picketing at
their own terminals alternative interlining methods were
arranged upon consultation with Seymour The carriers
involved in these new arrangements, each of which will be
separately described, were Gateway Transportation Co.,
Inc , Glendenning Motorways, Inc , C. W Transport,
Inc., Olson Transportation Company, Motor Transport
Company (herein respectively called Gateway,
Glendenning, C. W, Olson and Motor), and G.B.-C
Gateway: Unlike the procedure which was followed
before the strike when Gateway would deliver to Seymour
freight which Seymour was to carry to its destination,
after the strike started Seymour sent its trucks to
Gateway's terminal to obtain the freight Except for one
instance, freight moving from Seymour to Gateway
followed the same course after the strike as it did before.
Seymour's drivers continued to bring that freight to
Gateway and they continued to assist in its unloading. On
the single deviation from the prestrike practice Seymour's
driver left Gateway's terminal without helping to unload
the freight he had brought there, leaving the entire
operation to be performed by Gateway's dockman.
Glendenning: After Seymour was struck Glendenning,
like Gateway, stopped delivering freight to Seymour for
further carriage. Instead, just as in the situation respecting
Gateway, Seymour sent its trucks to Glendenning's
premises for the freight.
-Such a request , as a trucking company executive testified , is granted
"nine times out of ten "
C W: Seymour and C.W. made two poststrike
arrangements for interlining freight. Under the first, which
was availed of only once, C.W. loaded its trailer with
freight for Seymour and parked it on the street in front of
its terminal From this point the trailer was hauled by a
tractor owned and driven by an employee of Seymour to
its dock where the trailer was unloaded and reloaded with
freight to be delivered by C.W. The loaded trailer was
then returned by Seymour to the street in front of C W 's
premises where it had originally been parked.
Under the second and more complex arrangement,
which was continued in effect until C.W stopped doing
business with Seymour, C. W loaded freight for Seymour
on one of its trucks which was driven by an employee of
C. N. to the picket line at Seymour's premises. From that
point it was taken across the picket line to Seymour's
dock either by a C.W. supervisor or a Seymour employee.
After being unloaded by Seymour's employees, sometimes
alone or sometimes assisted by the C.W supervisor," the
truck was again taken across the picket line by a C W
supervisor or a Seymour employee and turned over to the
waiting C.W driver, who returned it to C.W 's terminal.
On one occasion during the strike freight traveling from
Seymour to C.W was carried in a C.W. truck driven by
an employee of C.W This was a departure from the
pattern followed before the strike under which this
delivery would have been made to C.W. by one of
Seymour's employees.
Olson: Following Respondent's strike against Seymour,
Olson discontinued its usual practice of delivering freight
directly to Seymour's terminal. Instead, like C.W.'s first
poststrike arrangement with Seymour, Olson's trailers
were loaded with freight for Seymour and then moved to
a point across the street from its dock.
Motor: Following the establishment of Respondent's
picket line at Seymour's premises Motor's terminal
manager, himself, delivered freight to Seymour instead of
Motor's continuing its prestrike practice of having that
work done by drivers in its employ.
C.B.-C: After the strike G.B.-C followed an
arrangement with respect to handling freight for Seymour
similar to the method already described in connection with
Gateway and Glendenning. Thus, like Gateway and
Glendenning, G.B.-C. discontinued delivering freight
directly to Seymour's terminal. Instead, freight to be
carried to its destination by Seymour was left on the
trailer in which it arrived at G.B.-C.'s dock. From there
the trailer was hauled to Seymour's premises by a tractor
owned by Seymour and driven either by its president or
one of its employees
Respondent contends, principally because of the
foregoing poststrike interlining arrangements, that the
participating carriers became allies of Seymour.12 These
arrangements aside, Respondent argues, additionally, that
the business of G.B -C. and Seymour is "so entwined"
that G.B.-C. "is allied with Seymour in a straight line
freight operation."
A person does not become an ally of a struck employer
by continuing a prestrike business relationship. Friden,
Inc., 134 NLRB 598, 599, 607-608. He does, however,
"It will be remembered that pursuant to the prestrike interlining practice
not only did the originating carrier deliver the freight involved directly to
the terminal of the destination carrier, but the originating carrier's
employees also assisted the destination carrier's employees in unloading the
truck
"The burden of proof in this respect rests on Respondent Marsh
Foodtiners , Inc, 114 NLRB 639, 642
DRIVERS , WAREHOUSE & DAIRY EMPLOYEES , LOCAL 75 533
become an ally of the struck employer when he
"knowingly does work by arrangement with a struck
employer which would otherwise be done by the striking
employees of that employer."" Patton Warehouse Inc.,
etc., 140 NLRB 1474, 1483;" enfd. in this regard, 334
F.2d 539 (C.A.D C.).
Testing the poststrike position of the interlining carriers
by this criterion [ find that they did not become allies of
Seymour. The arrangements whereby they continued to do
business with Seymour after it was struck did not require
them to do, nor except in two instances to be discussed
below, did they do, any struck work; i.e., work which but
for the strike would have been done by Seymour's
employees. Rather, the opposite is true. Seymour's
employees did not do less work by reason of the poststrike
interlining methods. By being required in most instances
to go to the terminals of the interlining carriers for the
freight destined for delivery by Seymour instead of that
freight's being brought to Seymour by those carriers, as
was the practice before the strike, and by being obliged to
unload that freight at their terminal themselves instead of
with the assistance of employees of the interlining carriers,
which was also the prestrike practice, Seymour's
employees were, in fact, doing more work pursuant to the
poststrike interlining procedure than they did before the
strike. As the General Counsel pithily commented in his
brief, "The situation posed herein is the exact opposite or
reverse of struck work."
There were two instances of the performance of struck
work by interlining carriers. The first of these consisted of
Gateway's employees, on one occasion, unloading a trailer
left at Gateway's terminal by Seymour's driver without his
assistance, which would have been given before the strike.
The second involved C.W.'s single carriage of freight from
Seymour's premises to its own, which before the strike
would have been done by Seymour. In agreement with the
General Counsel, however, I am of the opinion that these
two isolated incidents do not furnish a sufficient basis for
a finding that Gateway and C.W. became allies of
Seymour.
As noted above, Respondent argues that even without
reference to poststrike interlining arrangements G.B.-C. is
an ally of Seymour because their business is "so
entwined" that they conduct "a straight line freight
operation." The specific basis for this contention is not
given.
The evidence, insofar as it bears on the relationship
between Seymour and G.B.-C., shows that Seymour
interlines more freight and interchanges more trailers with
G.B.-C. than with any other carrier. The evidence further
establishes that G.B.-C. solicits shippers who do business
with Seymour and other short haul carriers to instruct
them to interline with G.B.-C. rather than its competitors.
Interlining freight and interchanging trailers are so
prevalent in the motor freight industry as to be the subject
of regulations issued by the Interstate Commerce
Commission and of a contract to which a substantial
number of carriers are parties. To say that two carriers
"The work involved in an arrangement of this type is commonly called
struck work. 4
"'N.L.R.B . v. Business Machine and Office Appliance Mechanics
Conference Board, etc., 228 F .2d 553 (C.A. 2); Oliver Whyte Company.
inc.. 120 NLRB 856; and General Metals Corporation , 120 NLRB 1227,
the authorities cited by the Board for this well -settled proposition, which
had its genesis in Douds Y. Metropolitan Federation of Architects. 75
F Supp . 672 (S. D.N.Y ), are included in the cases relied on by respondent
to establish its ally argument.
are "so entwined" as to be allies because they engage in
these common practices to a greater extent between
themselves than with others would be to exempt a large
segment of the trucking industry from the protection
afforded by Section 8(b)(4)(B) of the Act. The very
language of that section, which, among other things,
speaks in terms of transporting goods negates this
proposition. I am, therefore, of the opinion that Seymour
and G.B.-C. are not "so entwined" as to be allies because
of the volume of freight which they interline with each
other or the number of trailers which they interchange.
Nor does the fact that G.B.-C solicits shippers who
deal with Seymour to direct Seymour to interline freight
with G.B.-C. rather than its competitors require a finding
that G.B.-C and Seymour are "so entwined" as to be
allies. G B.-C. acts on its own behalf rather than
Seymour's in its solicitation, and Seymour, which would
carry the freight involved even absent G.B.-C.'s
solicitation , does not benefit by it.
Respondent's final point, in this connection, is that
G.B.-C. and Seymour are allies because they conduct a
"straight line freight operation." To the extent that
Seymour and G.B.-C. participate through interlining in
the carriage of particular freight from shipper to
consignee they are engaged in a "straight line freight
operation." But, as Irwin-Lyons Lumber Company, 87
NLRB 54, 56, which also involved a "straight line
operation" teaches, more is necessary on this score than is
present here to convert G B.-C and Seymour into allies.
In Irwin-Lyons the additional factors on which the Board
relied in concluding that an ally relationship existed was
the common ownership and managerial control of the two
corporations involved in the "straight line operation"
there under scrutiny. No evidence of either being present
insofar as G.B.-C. and Seymour are concerned, I find that
they are not allies, because of their participation in a
"straight line freight operation."
Accordingly, I conclude that Respondent has not
sustained its burden of establishing the existence of an ally
relationship between Seymour and the carriers with whom
it does business by reason of the poststrike arrangements
for interlining freight. I also conclude that respondent has
not established any other basis for finding that G.B.-C. is
an ally of Seymour.
C. Facts Concerning Respondent's Alleged
Unfair Labor Practices
The facts as to Respondent's conduct in support of its
strike against Seymour are not in dispute.15 The evidence
in this respect establishes, and I find, that-
1. Respondent picketed at the Green Bay terminals of
carriers with whom Seymour did business with signs
calling attention to its strike against Seymour. At the
beginning of the strike respondent's picketing at these
places coincided with the presence there of Seymour's
employees and trucks. As the strike wore on, however,
Respondent's picketing at carriers' premises was extended
to times when neither employees of Seymour, nor its
"I have already noted in the introductory section of this Decision that
although in its answer Respondent denied many material allegations of the
complaint , it does not in its brief argue that it did not engage in the
conduct claimed by the General Counsel to be violative of Sec 8(bX4)(B)
of the Act . Respondent argues, instead , that in the circumstances of this
case its conduct was privileged . Accordingly, my findings of fact , in this
regard , will be stated somewhat more summarily than would have been the
case had there been substantial evidentiary conflicts or had Respondent
seriously stood upon the denials appearing in its answer
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment were there . On one occasion picketing occurred
at G.B .- C.'s terminal in the absence of any employees of
Seymour , but while a loaded Seymour trailer was there
awaiting haulage to Chicago by G.B.-C. This trailer had
been brought to G.B .-C. by Seymour, whose driver,
having no further work to do at G.B .-C.'s premises in
connection with that trailer , departed upon the trailer's
delivery to G.B.-C. Picketing under similar circumstances
also took place at terminals of other carriers.
2. Respondent appealed to its members employed by
carriers with whom Seymour does business, under penalty
in several instances of their being fined or having their
"card pulled ," not to handle or work upon freight
delivered by, or to be delivered to, Seymour ; to refrain
from all work for their employers , to sit down , or leave
their employers ' premises , during the progress of the
picketing described above ; and not to cross the picket
lines. Officials of some carriers urged employees , who had
stopped working in response to respondent's appeals here
set forth , to resume their duties.
3. Respondent threatened officials and representatives
of carriers at whose premises picketing and work
stoppages had occurred , as described above, that this state
of affairs would be continued , resumed , or intensified
unless they discontinued their business relationship with
Seymour.
As a result of Respondent 's foregoing activities several
carriers stopped doing business with Seymour . I find that
the achievement of this result , as respondent 's threats to
the carriers makes clear, was an object of its conduct.
D. Contentions and Concluding Findings Concerning
Respondent 's Alleged Unfair Labor Practices
As I stated at the conclusion of the ' trial , except for
Respondent ' s defenses , as to the merits of which I was not
then making a judgment , "this case seems to me to
[present] , from the evidence [adduced], a situation where
Respondent has engaged in conduct which would normally
[constitute ] unfair labor practice[s] within the meaning of
8(b)(4)(B)."
Respondent raises three defenses . Its main contention is
that the carriers with which Seymour does business
became its allies after the strike . Respondent 's other two
defenses , as I have previously noted , consist of assertions
that its picketing at premises of Seymour's interlining
carriers comported with standards for lawful ambulatory
or common situs picketing first enunciated in Moore Dry
Dock Company , 92 NLRB 547, 549, and that its appeals
to its members employed by the carriers constituted legal
advice which it could rightfully give . I have already
rejected Respondent ' s ally defense . Upon evaluation of
Respondent 's other defenses I am of the opinion that they,
too, must be rejected.
The Moore Dry Dock standards for lawful common or
ambulatory situs picketing , as the Board made plain in
Plauche Electric , Inc., 135 NLRB 250, 255 , "are not to be
applied on an indiscriminate 'per se' basis , but are to be
regarded merely as aids in determining the underlying
question of statutory violation ." Where there is ostensible
compliance with the Moore Dry Dock yardstick coupled
with direct appeals to "[secondary ] employees to cease
work , with an object of causing their employers to cease
doing business with primary employers . the direct
appeals to secondary employees . . . have in effect negated
the conditions required in Moore Dry Dock to justify the
picketing and have therefore exceeded the limits of
permissible 'primary' activity and [constitute ] violations of
[Section 8(b)(4)(B)] of the Act." Riss & Company, Inc ,
130 NLRB 943, 949-950, enfd. 300 F.2d 317 (C.A. 3). To
the same effect, see T & D Roofing Co., Inc., 173 NLRB
No. 188.
Applying these precepts to the instant case it is clear
that even if Respondent had observed all of the Moore
Dry Dock standards in connection with its picketing at
premises of Seymour' s interlining carriers, which is not
the case," its picketing lost the protection which it
otherwise might have had by Respondent's violative
appeals to the carriers' employees and threats to their
employers. Respondent's picketing having become tainted
in this manner , its defense here under consideration, in my
opinion , is not well taken.
Finally Respondent, on brief, justifies its appeals to its
members employed by the carriers with which Seymour
does business as legal advice to counteract their
employers' orders "to load and unload trailers which are
part of the primary situs of the dispute." Like its other
defenses, I feel that this, too, lacks merit.
Assuming that Seymour's trailers wherever found,
constitute the situs of Respondent's dispute with Seymour,
i' as Respondent contends, its appeals to its members
employed by the carriers went far beyond loading and
unloading them. They encompassed, as I have found,
requests and directions to refrain from all work for their
employers while picketing was in progress. Furthermore,
Respondent's "legal advice" to its members, which
resulted in work stoppages by them, preceded, rather than
followed, their employers' urging that they resume their
duties.
Its defenses having been rejected, I find that
Respondent has engaged in, and has induced and
encouraged individuals employed by persons with whom
Seymour does business, who are interstate freight carriers,
to engage in, strikes and refusals in the course of their
employment to transport, and otherwise handle and work
on goods, articles, and commodities and to perform
services . I further find that respondent threatened and
coerced persons with whom Seymour does business who
are engaged in the interstate carriage of freight. Finally, I
find as an object of respondent's foregoing conduct the
forcing and requiring of persons with whom Seymour does
business to cease handling and transporting freight
tendered by, or to be delivered to, Seymour and to cease
"Respondent repeatedly picketed at terminals of interlining carriers
while neither Seymour nor its employees were there engaged in Seymour's
normal business of delivering freight . Notwithstanding this, respondent
argues, in reliance upon Ingram Barge Company , 136 NLRB 1175; and
Plauche Electric , Inc., 135 NLRB 250, that those locations could be
picketed despite the absence of Seymour's employees because they were
places where Seymour and the terminal occupants regularly exchanged
freight However , the picketing in Ingram and Plauche occurred under
circumstances not present here . In both , although employees of the struck
employer were absent from the picketed site, there was work for them to
do there while the picketing was in progress . Here there was not The work
of Seymour ' s employees at the picketed premises ceased upon their
departure , even though , in some instances, Seymour's trailers remained
there after they left Accordingly , the controlling authority is neither
Ingram nor Plauche , but Wilson Teaming Company , 140 NLRB 164, 167,
in which the Board expressly distinguished Plauche in the manner
suggested In Wilson the picketing of an unmanned trailer owned by a
struck employer was held to be violative of Sec 8(b)(4XB) of the Act for
the reason that when its driver "left his trailer . and departed his work
was completed ." Therefore , the picketing was unlawful , the Board went on
to say , because the owner of the trader "was not engaged in his normal
business at the [picketed] site," as required by the second Moore Dry
Dock criterion for permissible common or ambulatory situ picketing
"But see fn 16, above
DRIVERS, WAREHOUSE & DAIRY EMPLOYEES , LOCAL 75
doing business with Seymour.
Accordingly, I conclude that Respondent engaged in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Seymour 's operations
described in section I, above , have a close , intimate, and
substantial relationship 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 Respondent engaged in unfair labor
practices within the meaning of Section 8(b)(4)(B) of the
Act, my Recommended Order will direct respondent to
cease and desist therefrom and to take such affirmative
action as will effectuate the purposes of the Act . Because
Respondent ' s unfair labor practices were aimed at several
employers with whom Seymour does business broad
cease-and-desist provisions will be included in my
Recommended Order . See, in this connection, Riss &
Company , inc., 130 NLRB 943, 951, enfd . 300 F.2d 317
(C.A. 3).
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Seymour is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The carriers with whom Seymour interlines freight or
exchanges trailers, including G .B.-C., Olson, C.W.,
Motor, Glendenning, Gateway, and Clairmont Transfer
Company (herein called Clairmont), are persons engaged
in commerce or in an industry affecting commerce within
the meaning of Section 8(b)(4) of the Act.
3. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
4. G.B.-C., Olson, C.W., Motor, Glendenning,
Gateway, and Clairmont are not allies of Seymour in
connection with Respondent 's strike against Seymour.
5. By engaging in, and inducing and encouraging
individuals employed by G.B.-C., Clairmont, Olson, C.W.,
Motor , Glendenning , and Gateway to engage in, strikes
and refusals in the course of their employment to
transport and otherwise handle and work on goods,
articles, and commodities and to perform services and by
threatening and coercing G.B.-C., Clairmont , Olson,
C.W., Motor, Glendenning, and Gateway, an object
thereof being to force or require G.B.-C., Clairmont,
Olson, C.W., Motor, Glendenning, and Gateway to cease
handling and transporting freight tendered by, or to be
delivered to, Seymour and to cease doing business with
Seymour , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
6. The unfair labor practices engaged in by Respondent,
as set forth in Conclusion of Law 5, above, affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
535
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case , I hereby issue the
following:
RECOMMENDED ORDER
Drivers, Warehouse & Dairy Employees, Local No. 75,
its officers, agents, and representatives, shall:
1. Cease and desist from engaging in, or by picketing at
premises of motor freight carriers with which Seymour
Transfer, Inc., interlines freight or interchanges trailers,
including Green Bay-Chicago Lines, Clairmont Transfer
Company, Olson Transportation Company, C.W.
Transport, Inc., Motor Transport Company, Glendenning
Motorways, Inc., and Gateway Transportation Co.; or by
threatening to impose fines, to revoke membership cards,
or to take any other form of disciplinary action, or by
effectuating any such threat; or in any other manner,
including orders, directions, instructions, requests, or
appeals, however given, made or imparted, or by
permitting any such to remain in existence or effect,
inducing or encouraging any individual employed by
Green Bay-Chicago Lines, Clairmont Transfer Company,
Olson Transportation Company, C.W. Transport, Inc.,
Motor Transport Company, Glendenning Motorways,
Inc., Gateway Transportation Co., or any other person
engaged in commerce or in an industry affecting
commerce, to engage in a strike or a refusal in the course
of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any
services; or in any manner or by any means threatening,
coercing, or restraining Green Bay-Chicago Lines,
Clairmont Transfer Company, Olson Transportation
Company, C. W. Transport, Inc., Motor Transport
Company, Glendenning Motorways, Inc., Gateway
Transportation Co., or any other person engaged in
commerce or in an industry affecting commerce, where in
either case an object thereof is to force or require Green
Bay-Chicago Lines, Clairmont Transfer Company, Olson
Transportation Company, C.W. Transport, Inc., Motor
Transport Company, Glendenning Motorways, Inc.,
Gateway Transportation Co., or any other person to cease
handling, transporting, or otherwise dealing in freight
tendered by, or to be delivered to, Seymour Transfer, Inc.,
or to cease doing business with Seymour Transfer, Inc.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Withdraw and rescind, in a manner acceptable to
the Regional Director of Region 30 of the National Labor
Relations Board, any and all orders, directions,
instructions, requests, or appeals, including threats to
impose fines, or to revoke membership cards made or
given to any individual employed by motor freight carriers
with which Seymour Transfer, Inc., interlines freight or
interchanges trailers, including Green Bay-Chicago Lines,
Clairmont Transfer Company, Olson Transportation
Company, C.W. Transport, Inc., Motor Transport
Company, Glendenning Motorways, Inc., and Gateway
Transportation Co., to induce or encourage him to engage
in a strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities
or to perform any services for the purpose of forcing or
requiring Green Bay-Chicago Lines, Clairmont Transfer
Company, Olson Transportation Company, C.W.
Transport, Inc., Motor Transport Company, Glendenning
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motorways, Inc , Gateway Transportation Co., or any
other person to cease handling, transporting, or otherwise
dealing in freight tendered by, or to be delivered to,
Seymour Transfer, Inc., or to cease doing business with
Seymour Transfer, Inc.
(b) Post at its office copies of the attached notice
marked "Appendix "" Copies of said notice, on forms
provided by the Regional Director for Region 30, after
being duly signed by Respondent's authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to 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.
(c) Deliver to the Regional Director for Region 30 of
the National Labor Relations Board signed copies of said
notice in sufficient number for posting by Green
Bay-Chicago Lines, Clairmont Transfer Company, Olson
Transportation Company, C W. Transport, Inc., Motor
Transport Company, Glendenning Motorways, Inc.,
Gateway Transportation Co., and other motor freight
carriers and persons with whom Seymour Transfer does
business in and around Green Bay, Wisconsin, they being
willing, at all locations where notices to their respective
employees are customarily posted.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words, "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced in a United States Court of
Appeals, the words "a Decree 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 is adopted by the Board,
this provisio ., shall be modified to read : "Notify the Regional Director for
Region 30, 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, WAREHOUSE &
DAIRY EMPLOYEES, LOCAL No 75; TO EMPLOYEES OF
GREEN BAY-CHICAGO LINES, CLAIRMON7 TRANSFER
COMPANY, OLSON TRANSPORTATION COMPANY, C.W.
TRANSPORT, INC., MOTOR TRANSPORT COMPANY,
GLENDENNING MOTORWAYS, INC., AND GATEWAY
TRANSPORTATION CO.; TO EMPLOYEES OF OTHER MOTOR
FREIGHT CARRIERS WHICH INTERLINE FREIGHT WITH
SEYMOUR TRANSFER, INC.; AND TO EMPLOYEES OF
OTHER COMPANIES WHICH DO BUSINESS WITH SEYMOUR
TRANSFER, INC.
Pursuant to the Recommended Order 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:
After a trial in which all sides had the opportunity to
present their evidence it has been found that we violated
the law by committing unfair labor practices. Accordingly
we post this notice and we will keep the promises that we
make i n this notice.
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting for
us, whatever his title may be, do any of the following
things to force any motor freight carrier to stop
interlining freight with Seymour Transfer, Inc., or to
force any motor freight carrier or any other company
to stop doing business with Seymour Transfer, Inc.:
WE WILL NOT, ourselves, nor will this union, engage
in strikes or call strikes
WE WILL NOT picket at or in the vicinity of terminals
or docks of any motor freight carrier which interlines
freight with Seymour Transfer, Inc , or which does
business with Seymour Transfer, Inc.
WE WILL NOT picket at, or in the vicinity of, any
other company which does business with Seymour
Transfer, Inc.
WE WILL NOT threaten any member of this union
with fines or with having his card pulled or with any
other punishment, for working at the terminal or dock
of any motor freight carrier which interlines freight
with Seymour Transfer, Inc., or which does business
with Seymour Transfer, Inc., or for working for any
other company which does business with Seymour
Transfer, Inc.
WE WILL NOT fine, or pull the card of, any member
of this union, or punish any member of this union in
any other way for working at the terminal or dock of
any motor freight carrier which interlines freight with
Seymour Transfer, Inc., or which does business with
Seymour Transfer, Inc , or for working for any other
company which does business with Seymour Transfer,
Inc.
WE WILL NOT in any way order, direct, ask,
persuade, urge, or influence any member of this union
or any other employee working at the terminal or dock
of any motor freight carrier which interlines freight
with Seymour Transfer, Inc., or which does business
with Seymour Transfer, Inc. or any employee, including
members of this Union, of any other company which
does business with Seymour Transfer, Inc , to strike, or
to take part in a work stoppage, or to refuse to do any
work.
WE WILL NOT in any way threaten, coerce, or
restrain any motor freight company which interlines
freight with Seymour Transfer, Inc., or any other
company which does business with Seymour Transfer,
Inc., or any official or agent of any such motor freight
carrier or company
Dated By
DRIVERS, WAREHOUSE &
DAIRY EMPLOYEES,
LOCAL No. 75
(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 or employees have any question concerning
this notice or compliance with its provisions, they may,
communicate directly with the Board's Regional Office,
Second Floor, Commerce Building, 744 North Fourth
Street, Milwaukee, Wisconsin 53203, Telephone
414-272-3861.