Freight, Construction, General Drivers

National Labor Relations Board - Board Decisions

Oct 30, 1970

186 N.L.R.B. 187 (N.L.R.B. 1970)

FREIGHT, CONSTRUCTION, GENERAL DRIVERS 187
Freight, Construction, General Drivers, Warehouse-
men and Helpers Union , Local 287, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Buck's
Butane-Propane Service, Inc. Case 20-CC-873
Respondent. The issues will be more fully set forth
hereafter.
Upon the entire record, including observation of the
witnesses, and after due consideration of the briefs filed by
the General Counsel and the Respondent, I make the
following:
October 30, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On May 14, 1970, Trial Examiner Allen Sinsheimer,
Jr., issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Decision
and a supporting brief. The General Counsel also
filed a motion for consideration of the Trial Examin-
er's Decision by the full Board.'
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 this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
1 The Board denies the General Counsel's motion for en bane
consideration of the Trial Examiner's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding
was heard at San Jose, California, on December 2 and 3,
1969. The amended complaint herein issued on November
10, 1969,1 based on a charge filed March 21, 1969, alleges a
violation of Section 8(b) (4)(i)(ii)(B) of the Act, by virtue of
certain picketing and other conduct engaged in by the
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE CHARGING PARTY
The complaint alleges and Respondent admits that
Buck's Butane-Propane Service, Inc., herein called Buck's,
is a California corporation with an office and place of
business in San Jose, California, where at all times material
it has been engaged in the sale and distribution at wholesale
and retail of butane and propane gas products and in the
retail sale and service of gas and butane appliances. In the
course and conduct of its business operations in the
calendar year prior to the issuance of the complaint, Buck's
received gross revenues in excess of $500,000. In the course
and conduct of its business operations during said year, it
purchased and received goods valued in excess of $50,000
from suppliers located in California, which goods and
materials were received by said suppliers directly from
points outside California. Buck's, in the course and conduct
of its business during said calendar year, sold goods and
materials valued in excess of $50,000 to firms located in
California, each of which firms during said period shipped
goods valued in excess of $50,000 directly from their
respective operations in California to points outside of
California and/or received goods valued in excess of
$50,000 which were shipped to each of said firms at its
respective operations in California directly from points
outside California. Buck's Petroleum Transport, Inc.,
herein called Transport, a California corporation with a
place of business in San Jose, California, at all times
material has been engaged in the sale and distribution at
wholesale of butane and propane gas products. In the
course and conduct of its business operations Transport,
during the said calendar year, sold goods and materials
valued in excess of $50,000 to firms in California each of
which during the same period shipped goods valued in
excess of $50,000 directly from its respective operations in
California to points outside California and/or received
goods valued in excess of $50,000 which were shipped to
each of said firms at its respective operations in California
directly from points outside California. Buck's and
Transport are, and at all times material herein have been,
affiliated businesses with common stockholders, officers,
directors, and managers. Said officers and managers form
and administer a common labor policy for said companies
and said companies constitute a single integrated business
enterprise.
Based on the foregoing admitted allegations, I find that
the Charging Party Buck's is engaged in commerce and that
its operations affect commerce within the meaning of the
Act. I also find that Transport is engaged in commerce and
that its operations affect commerce within the meaning of
the Act.
1 The original complaint issued September 30, 1969.
186 NLRB No. 35
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED followed or picketed its trucks at various locations. Further,
Respondent also contacted certain persons who were
customers of Buck's and/or Transport and in most such
instances it picketed Buck's trucks while at the location of
the customer. The General Counsel contends that, although
the picketing at the various locations may have, with one
exception, conformed to the requirements of the rules laid
down by Moore Dry Dock2 that the question to be
determined is the objective of the Respondent as manifest-
ed not only by the picketing but by its other conduct viewed
in the light of all of the circumstances. The Respondent, on
the contrary, contends that if it has met the requirements of
Moore Dry Dock, that further consideration of its
motivation or objective is not in order. Respondent's
position , in essence , is that through the Moore Dry Dock
criteria the Board has made the adjustments necessary to
effect a practical reconciliation between Section 8(b)(4) and
Section 13 of the Act. Respondent accordingly is contend-
ing that the Moore Dry Dock requirements are all
inconclusive while the General Counsel is contending that
Moore Dry Dock merely institutes certain criteria which, if
met absent anything more, would negate a violation, but
that the ultimate statutory test is that of objective or
motivation. The problem inherent herein is one that has
been troublesome throughout the history of the Taft-
Hartley Act. It arises because of the fact that all picketing,
even at the main place of business of the Respondent, has
certain secondary aspects.
In literal terms Section 8(b)(4) could be interpreted to
prohibit every strike anywhere since a strike may not only
affect employees of the struck employer but employees of
other employees who do business with the struck employer.
Section 133 which is designed to guarantee the right to
strike (with certain limitations) could become a nullity if
Section 8(b)(4) were so literally applied. There is also the
proviso (adopted in 1959) to Section 8(b)(4)(i)(ii)(B) which
must be construed in this connection.4 The Moore Dry
Dock rules applicable to ambulatory picketing of trucks or
common situs picketing were adopted by the Board to
effect a reasonable reconciliation of the conflict.5 The
subjects of Moore Dry Dock criteria, ambulatory or
common situs picketing, and the matter of "objective"
under 8(b)(4)(i)(ii)(B), as well as in other picketing
situations under the Act, have been considered in numerous
decisions and law review articles .6 The General Counsel's
position as to his right to introduce and have considered
other evidence relating to the picketing and the question of
picket at the siteof itsdispute asagainst theright of a secondary employer to
be free from picketing in a controversy in which it is not directly involved.
When a secondary employer is harboring the situs of a dispute
between a union and a primary employer, the right of neither the
union to picket nor of the secondary employer to be free from
picketing can be absolute . The enmeshing of premises and situs
qualifies both rights . [footnote omitted] In the kind of situation that
exists in this case , we believe that picketing of the premises of a
secondary employer is primary if it meets the following conditions: (a)
The picketing is strictly limited to times when the situs of dispute is
located on the secondary employer' s premises ; [footnote omitted ] (b)
at the time of the picketing the primary employer is engaged in its
normal business at the situs; [footnote omitted] (c) the picketing is
limited to places reasonably close to the location of the situs; and (d)
the picketing discloses clearly that the dispute is with the primary
employer.
6 Among the latter see Lesnick, "Gravamen of the Secondary Boycott,"
Freight, Construction, General Drivers, Warehousemen
and Helpers Union, Local 287, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called either the Union or Respondent, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent on certain dates
between March 4, 1969 and March 20, 1969, engaged in
certain acts in violation of Section 8(b)(4)(i)(ii)(B) of the
Act. More specifically, the complaint alleges that on March
4, 5, 7, 11, and 14, Respondent caused picket lines to be
authorized, established, and maintained at certain specified
locations . It further alleges: that on March 4, 1969,
Respondent informed a representative of Al Nunes
Trucking that in the event Nunes continued doing business
with Buck's, Nunes premises would be picketed by
Respondent; that on about March 18, Respondent
informed a representative of Owens Corning Fiberglass
(herein called Owens), that in the event Owens continued
doing business with Buck's, Owen's premises would be
picketed by Respondent; ° that on about March 18,
Respondent informed a representative of Zellerbach Paper
Company, herein called Zellerbach, that in the event
Zellerbach continued doing business with Buck's, Zeller-
bach's premises in San Jose would be picketed by
Respondent; and that on or about March 20, 1969,
Respondent, by its business representative, John Gleason,
informed a representative of Tri-Valley Growers, herein
called Tri-Valley, that in the event Tri-Valley continued
doing business with Buck's, Tri-Valley's premises in San
Jose would be picketed by Respondent.
A. The Issues
The complaint alleges that an object of the conduct of
Respondent "has been to force or require" various named
companies to cease doing business with Buck's and/or
Transport. The issue revolves around whether picketing
was properly conducted and whether other conduct was
proper in relation to a strike which occurred at Buck's
and/or Transport. The evidence will reflect, as set forth
more fully hereafter, that Respondent picketed not only at
Buck's and/or Transport's main place of business, but
2 Sailors Union of the Pacific AFL (Moore Dry Dock Company), (1950) 92
NLRB 547 at 549. For these rules, see fn. 5, post.
3 Section 13 provides:
Nothing in this Act, except as specifically provided for herein, shall be
construed so as either to interfere with or impede or diminish in any
way the right to strike , or to affect the limitations or qualifications on
that right.
This reads : "Provided, that nothing contained in this clause (B) shall
be construed to make unlawful , where not otherwise unlawful any primary
strike or primary picketing."
5 Moore Dry Dock, supra, at p. 549:
When the situs is ambulatory, it may come to rest temporarily at the
premises of another employer. The perplexing question is: Does the
right to picket , follow ' the situs while it is stationed at the premises of a
secondary employer , when the only way to picket that situs is in front of
the secondary I employer's premises? Admittedly no easy answer is
possiblelEssentially the problem is one of balancing the right of a unionlto
FREIGHT, CONSTRUCTION, GENERAL DRIVERS 189
objective and motivation is supported by a number of cases
but there still remains the question of what other conduct
and circumstances must occur to find a violation where the
rules laid down by Moore Dry Dock have been complied
with.?
B. Preliminary Facts and Discussion
Buck's principal facility in San Jose is located at the
intersection of 13th and Commercial Streets and consists of
a retail store and a storage area which includes a garage and
parking area for trucks. Respondent Union was certified on
December 12, 1968, by the Board as the bargaining
representative of Buck's delivery and service employees.
Respondent and Buck's held several bargaining sessions in
January 1969, but were unable to reach agreement on
contract terms . Jack Gleason, a business representative of
Respondent who had been negotiating with Buck's,
informed the employees on February 10 that there was an
impasse in negotiations. Thereafter a strike occurred and
picketing commenced for the purpose of obtaining a
contract. Picketing continued from February 10 through
August 5. The number of pickets at Buck's Commercial
Street location was ordinarily 5 or 6 although it appears
that on occasion pickets may have ranged as high as 45 to
50. The picket signs read : "Buck's Gas Unfair to Teamsters
Local 287," or "Buck's Petroleum Transport Unfair to
Teamsters Local 287." Buck's employees, both during and
throughout the entire duration of the strike, reported to the
Buck's Commercial Street location every workday morning.
Buck's supplies propane gas to residential and commercial
customers in San Jose and the surrounding area and
normally utilized about seven to nine drivers in this
operation .8 Buck's employees, accordingly, are ordinarily
making deliveries throughout the area surrounding San
Jose. If during the course of the day an employee
completed all his assignments , he would call in to learn
about orders and, if there were any (except for one driver),9
would return to the principal location in San Jose to receive
them. Although not specifically so stated, inferentially it
appears that the employees would return to the main
location at the end of the workday so that they would be at
Buck's principal place of business at least twice every
workday. A few weeks after the picketing started, the
Respondent admittedly also engaged in picketing at the
premises of a substantial number of Buck's customers listed
in paragraph 6 of the amended complaint.
In those instances where the trucks were followed,
Business Representative Gleason, who is clearly, and I find,
an authorized agent of Respondent with respect to all
material matters herein, gave the pickets their instructions,
and provided them with picket signs.la
Gleason testified with respect to his instructions concern-
ing the picketing that he told the men they had the right to
62 Columbia Law Review 1363 and particularly discussion at 1377 et seq.
See also Lesnick , "Job Security and Secondary Boycotts," 113 U. of Pa.
1000 at 1007 , and see article by Prof. Engel in 52 Virginia Law Review 189
particularly at 200-202.
7 See Plauche Electric, 135 NLRB 250 at 255; L.G. Electric, 154 NLRB
766 at 767; Catalano Bros., , Inc., 175 \NLRB No. 74, and see Brown
Transport Corp. v. N.L.R.B., 334 F.2d 30 (C.A. 5)(1964) Rev. 144 NLRB
590. Particularly pertinent is the recent split decision (2 to 1) of the Board
in Estes Lines, Inc., 181 NLRB No. 121 which will be considered more
follow the equipment and picket it wherever it went but if
they were asked whether they were picketing the place of
business of the location where the truck was situated, other
than the principal place of Buck's, that they were to say that
the signs indicated that they were not picketing that place
of business but that of Buck's. Gleason said he told them to
follow the trucks wherever they went and to get as close to
the equipment as they could reasonably get. The picket
signs used were, as previously set forth, "Buck's Gas Service
Unfair to Local 287" except for the picketing of certain
tanker equipment which occasionally came into San Jose
from Paso Robles where the name of "Buck's Petroleum"
was used instead of "Buck's Gas Service."
The General Counsel contends that Gleason was evasive
in testifying as to his intent and that Gleason's description
of the picketing as "informational" was not a complete
answer. He refers to Gleason's testimony that Respondent
used picketing away from a primary part of the premises to
obtain a contract in the following words, "I would say yes
at that. It would indicate we want as much to come from
picket action as we can possibly receive. " [Emphasis supplied ]
The latter was an evidently honest response. While Gleason
in part may have been testifying so as to limit the impact of
his instructions and action as to the picketing of the trucks
at the locations, other than the principal place of business
of Buck's, and while this may establish that Gleason was
familiar with the secondary boycott provisions of the Act, I
do not consider nor find that such makes the picketing at
the locations where the trucks were situated violative of the
Act. The fact that Gleason may have hoped or expected or
anticipated that such picketing might have secondary
effects, including effects upon employees of other employ-
ers, does not per se make the picketing illegal in view of the
criteria laid down in the Moore Dry Dock case. Gleason's
thoughts in the matter could not therefore make illegal
what would otherwise be legal. If Gleason's thoughts, hopes
and expectations were kept to himself, this would not affect
the legality of the picketing which met the Moore Dry Dock
criteria.
On the other hand, if Gleason took other action with
respect to the picketing, such might change the result in the
case. This would depend on whether the other action (1)
went outside or beyond the Moore Dry Dock criteria or (2)
otherwise illegally induced secondary employees to refuse
to work in violation of Section 8(b)(4)(i)(B) or threatened,
coerced, or restrained any person with an object in
violation of Section 8(b)(4)(ii)(B).
Hence, the matters to be considered will be first what
variations from Moore Dry Dock, criteria, if any, were
there? In this connection, the General Counsel has
conceded that there was only one variation which will be
specifically discussed.tl There will also be considered any
other situations which may appear to raise a question with
fully, post.
8 Buck's also has an over-the-road tanker transport business operating
out of Paso Robles under the name of Buck's Petroleum.
9 This driver whose route is a substantial distance would receive
additional orders by phone and return to San Jose at night.
10 It was stipulated that all business representatives of the Union
performed the same duties and functions as Gleason testified he
performed.
11 Involving certain picketing at Hemphill, post.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect to complaince with Moore Dry Dock's standards.
Second will be considered evidence as to any conduct
which has occurred other than the picketing and whether or
not such was merely complementary to proper picketing or
whether it was more than that in relation to the sections of
the statute allegedly violated; that is whether such conduct
induced or encouraged employees in a manner violative of
Section 8(b)(4)(i)(B) or threatened, coerced or restrained
any person in violation of Section 8(b)(4)(ii)(B). The fact
alone of certain secondary effects is not decisive. The
question is whether these were achieved or obtained in a
manner outside or beyond the criteria enunciated by the
Board in Moore Dry Dock as applicable to ambulatory
picketing and common situs picketing.12
C. Additional Facts and Discussion
It may well be that the Estes case , supra,13 may be
diapositive of the issues herein with possibly one or two
exceptions. However, that case as noted involved a
difference of viewpoint on the part of the Board members
with the Chairman dissenting in the two to one opinion. In
the light thereof and the issues therein and herein. I believe
that it is desirable to consider in some detail the evidence
adduced by the General Counsel so that the Board may
have before it the facts for comparison both with Estes and
also for such evaluation or resolution as may seem
appropriate. Although the Moore Dry Dock criteria, in
essence , reflects a balancing of interests, they are not
exclusive.
There has previously been set forth certain testimony or
admissions on the part of Gleason and also that the
General Counsel does not contend except in one instance
that the picketing was in violation of the Moore Dry Dock
standards. He does raise a contention that the Respondent
has not established that it complied with the Moore Dry
Dock standards although stating that he is not pursuing this
contention. The General Counsel alleged certain picketing
to be in violation of the Act. Respondent admitted that it
had picketed but stated that the picketing was lawful. It
would accordingly appear incumbent on the General
Counsel to offer evidence that such picketing was unlawful
rather than the Respondent be required to prove that it was
lawful. In any event in the instances set forth with the one
exception noted , it is clear first that the instructions (given
by Gleason) as to picketing directed lawful picketing in
compliance with Moore Dry Dock and that the picketing, by
itself where it occurred, complied with those standards
unless the fact that in one or two instances there may have
been a trespass involved which possibly might raise a
question as to validity of the picketing. However, no such
contention has been raised and in one of the instances in
question at Mrs. Silvia's, there could be difficulty in
11 In this connection , I am not giving weight to the fact of there being a
principal situs where such picketing might have occurred nor do I view this
as an element on which I can predicate a decision herein in the light of the
Board 's rejection of the same, at least in its more recent decisions. I am
aware that certain cases have not uniformly followed this, including the
Brown Transport case referred to, supra, where the Court gave definite
consideration to the view of minority Board member Leedom (which had
been the position of the Board at one time). Among possible positions are
that the existence of a principal situs is (I) irrelevant or (2) relevant but not
decisive or (3) decisive. Either of the latter positions would currently
appear to be contra to the current Moore Dry Dock criteria as to proper
determining where the road ended and her property began.
I also note that there may be a question in two or three
instances whether in fact there was picketing or whether the
pickets merely followed a truck and either sat in their car or
walked around without picket signs. These involved: (1)
incidents on property of Zelma Silvia involving her as an
individual customer and a Philco facility property which is
reached through a private road through the Silvia property;
(2) a situation at the Saratoga Golf Course; (3) and one at
Ford, all discussed further hereafter.14 Except for an
incident involving picketing at Hemphill, the General
Counsel does not appear to have shown any picketing that
would not comply with the Moore Dry Dock criteria as to
the place and location of the pickets and the picket signs.
Accordingly, the issues revolve about other conduct
which occurred either in connection with the picketing or
threat of picketing or are related thereto. Essentially it
appears that the General Counsel relies on the (1) stated
attitude of the Respondent with regard to what it was
seeking from the picketing, (2) the circulation to various
other locals of the Teamsters Union of a letter dated May
12, 1969, advising of the strike and stating: "If any of the
enclosed places of business are under contract with your
Local, it would be appreciated if you would notify them
that Buck's is on the `We DO NOT Patronize List.' ", (3)
direct statements made to various employers with respect to
the picketing including particularly: (a) requests not to
continue to do business with Buck's, or (b) threats that doing
business with Buck's would lead to pickets, which latter will be
discussed or (c) suggestions that secondary employers might
do business with someone else while the labor dispute
continued, and (d) one instance in which testimony reflects
that a particular employer who did business with Buck's
was threatened with broken windshields if this continued. As
part of the foregoing, the General Counsel relies on
testimony by Gleason in which he referred to solving the
customer's problem with respect to any picketing that might
occur, implying that this involved a threat. Finally, the
General Counsel refers to the picketing of a truck at
Hemphill's across the ' street from Buck's when no
employees of Buck's were present at that location. His
argument is that the total impact of all the foregoing clearly
shows a motive or object of pressuring secondary
employers to cease doing business with the Respondent.
Subject to testimony relating to the particular incidents to
be discussed hereafter, the pleadings establish that on or
about March 4, Respondent maintained a picket line at the
premises of California Canners and Growers, on or about
March 5 a picket line at the premises of T & L Farms, on or
about March 7, a picket line at the premises of Saratoga
Golf and Country Club, on or about March 7, a picket line
at the premises of Philco Technical Institute, on or about
ambulatory picketing since such would then become a factor to consider in
the overall situation , since the Board currently has taken a position. I do
not consider that I should directly attempt to reevaluate the elements and
matters leading thereto but will seek to consider matters not covered
thereby. Whether the latter approach can properly resolve the case will
appear more fully hereafter.
13 Footnote 7.
14 Even as to these , whether picketing or not, the General Counsel does
not claim nor does there appear to be definite proof of violation of Moore
Dry Dock standards from any conduct at those facilities.
FREIGHT, CONSTRUCTION, GENERAL DRIVERS 191
March 7, a picket line at the premises of Frank Silvia, on or
about March 11, 1969, a picket line at the premises of Ford
Motor, on or about March 14, a picket line at the premises
of Owens Coming Fiberglass. The complaint so alleged and
Respondent admitted maintaining a legal picket line at
these premises .15 However, the testimony with respect to
the above raises some questions as to when or whether a
picket line was maintained at certain locations. For
instance, there is testimony that at Saratoga Golf and
Country Club the pickets sat in their car but did not picket,
and that at the Philco Technical Institute and Mrs. Frank
Silvia the picket signs were not taken out or displayed but
were in the car. Also as to pickets at Ford Motor Company,
the testimony was in the nature of hearsay from a
representative of the Company with testimony from certain
employees who had driven there that they did not picket
although admittedly they had engaged in conversations
with a representative of Ford.
After Respondent's pickets had followed a Buck's truck
to Owens Corning premises, Gleason went there and spoke
to a management representative. According to Gleason, he
told him:
"I'd like to inform you that we do have picket action
against Buck's Gas Service and Buck's Petroleum
Transport, Inc.," and that "We are following that
equipment when it's making deliveries at this time. In
fact, we are concentrating our efforts very heavily in this
area; and I wish to just inform you that this is the action
that we're taking so that if by chance a delivery is made
to Owens, naturally we will have pickets following the
equipment-so that you will know who these pickets are
and primarily what they are doing." [Emphasis
supplied]
But I also emphasized the fact that we were only
picketing Buck's Gas Service and Buck's Transport,
Inc.-that we were not picketing the company or trying
to upset his employees.
Gleason testified as follows as to a conversation in March,
with John Wilson, an official of Tri-Valley Canners &
Growers, another customer of Buck's:
Well, as John came on the phone I introduced myself
to him; and he knows me by name . And I just said,
"John, I wish to inform you that we have a sanctioned
strike with Buck's Butane Gas, and we are picketing the
equipment to-no matter where its destination may be;
we are following the trucks on their deliveries. And I am
aware that you are a customer of Buck's, and in as much
as you have contracts with this local union and the
Cannery Local union, I thought it would be of the best
interest to all if I would inform you of the picket action,
and that it would be very possible if the truck was making
deliveries at your canneries at any place of business
where you have a tank, that there would be pickets -of
Local 287 would be picketing Buck's Gas Service; and if
you have any questions with regard to the picket action, I
would appreciate it if you would call me direct, because I
am in charge of that picket action." [Emphasis
supplied.]
Gleason also initiated a call in March to a Mr. Ken
O'Brien of the Container Corporation with whom Local
287 has a contract with respect to transportation. Although
the complaint does not specifically refer to the Container
Corporation,16 the General Counsel's position is that this
incident goes to motivation. Gleason testified as follows:
Again I talked to Mr. O'Brien and indicated to him
the strike action of ours with Buck's Gas Service, and I
understood that he was a customer of theirs, and I just
wanted to go on record with him also that by chance if a
truck of Buck's was making a delivery on your premises
that we would be picketing that equipment, and that
equipment only. [Emphasis supplied]
Gleason further testified that his purpose in calling O'Brien
was: "Basically out of courtesy to the individual, inasmuch
as we have contracts with that company." Gleason said that
by courtesy he meant that places of business might not be
aware of action by the Union even though they have a
contract with that local union. He was asked: "Did you
want Container Corporation to stop doing business with
Buck's" and responded: "No, sir, I did not. I wanted to
inform them that we had picket action."
O'Brien testified with respect to this matter:
Mr. Gleason advised me that there was a-the
local, 287, was involved in a labor dispute with Buck's
Butane , and in view of the fact that they were supplying
us with fuel, he thought it was-well, he told me that he
was advising me, in light of the fact that Buck's was a
supplier, that pickets were following the trucks, and that
we might expect the appearance of pickets on our
property. And he suggested that we find another supplier,
at least until the labor dispute was settled and to avoid
confusion on our property with the pickets and so on.
[Emphasis supplied]
O'Brien further testified that he asked Gleason what he
meant by confusion and that Gleason said that "other truck
drivers attempting to make deliveries were making pickups
on our property might be confused as to what the purpose
of the pickets were or they might-but they might be
inclined to be in sympathy with the pickets." [Emphasis
supplied] I am crediting O'Brien's version since it is in
accord with the evidence as a whole.
Gleason also went to see Ben Salamoni , an official of
Georgia Pacific, another company (not named in the
complaint) with whom Local 287 had an agreement
concerning transportation. Gleason testified that during
March he drove to Georgia Pacific, contacted Salamoni
and told him:
"Ben, I 'd like to inform you that we have picket
action with Buck's Gas Service, and I understand that
you are a customer of that company; and I wanted to
inform you that we are following the trucks, no matter
where they go-no matter where they make their
deliveries. So it's very possible, Ben, that in them making
a delivery here, we may be here with pickets picketing
Buck's Gas Service. " [Emphasis supplied ]
Gleason was asked the basis of his informing Salamoni and
15 I have at this point not referred to the admitted allegation of a picket 16 Unless otherwise stated, the various incidents are alleged in the
line at Hemphill 's which will be discussed with respect to its legality complaint.
hereafter.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied: "To inform the customer that Buck's was on strike,
yes."
According to Gleason, although the picket signs had
Local 287 on them, he wanted Salamoni to know which
business agent to call if he had a problem. Gleason was
asked:
Q. Oh, you were letting him know that you were
that business agent to get in touch with?
A. If he had a problem.
What I am saying, if the pickets followed
equipment and by chance there was some
controversy to the picket action, that I wanted
people to be aware of who to call at our Local
union, because I didn't want him talking to other
business agents who were not connected with it.
When asked why other business agents could not have
referred the matter to him, Gleason answered: "That
wouldn't have solved the customer's problem at that time."
[Emphasis supplied.]
Another business agent of Respondent, Peter Cancilla,
also contacted Mrs. Nunes of Nunes Trucking Company
and asked her if her company received gas from Buck's.
When she said it did, he told her of the strike against
Buck's. Mrs. Nunes testified on direct examination that
Cancilla then told her: "maybe they will put pickets on our
place." On cross-examination, Mrs. Nunes testified:
He says maybe they would bring some pickets out if
Buck's was out at our place, because like they have been
saying here, it was to be with the truck.
She was then asked on cross-examination:
Q. Could it be that he said we are picketing Buck's
truck.
A. No. He said he was going to bring pickets out,
but I didn't in fact know whether it was our place or to
go with the truck.
Q. And it is possible that he could have said "We
will bring pickets out if Buck's comes out to make a
delivery."
A. Yes.
I note the foregoing in connection with Mrs. Nunes'
testimony is not entirely clear. It is evident that there was
some discussion about picketing if a Buck's truck came out
but in Mrs. Nunes' mind apparently it was not clear
whether the picketing would be related solely to the time
the truck was there or not.
On March 11, the pleadings admit picketing occurred at
Ford Motor Company at Milpitas. Joseph Matacia,
industrial relations manager of Ford at Milpitas, received
information through his "chain of command" that there
were pickets at the premises. According to Matacia he
called the guard and told him to tell the pickets the
picketing was illegal and they should leave. He was
thereafter informed they had left. Later in the day, he was
told the pickets had returned. Matacia and his labor
relations supervisor then went to the truck gate. He saw no
pickets there and was told by the guard the'pickets were in
an automobile in the hourly employees' parking lot. He
went to the car and asked the men what was on their mind
and what could he do for them. One of the men identified
himself as a member of a Teamsters local which was on
strike at Buck's Butane . He testified the man was James
Mahan, a prior witness then in the hearing room.
According to Matacia, Mahan told him about the strike,
Matacia asked why he was there and was told:
And he said, "There's a truck of Buck's unloading.
Do you know that?"
I said, "Yes, I know that" and I so indicated-we
wanted to stop unloading-words to this effect.
I said, "Well, the truck is just about finished, I'm
told. It will be leaving here very shortly. I have checked
and determined that we do not expect another delivery
for approximately two weeks; so believe me that the
truck is going to leave here shortly. Why don't you
fellows leave also?"
The men then left and Ford did not patronize Buck's again
until August.
James Mahan, a striker at Buck's, testified on direct
examination as to this incident-that he was standing close
but that Matacia was talking to another striker, Paul
Peterloa rather than to him. According to Mahan, Peterloa
asked Matacia about stopping the delivery and Matacia said
they couldn't reverse the pumps. They left shortly after that.
On cross-examination, Mahan testified while he was at
Ford, they were not picketing but were in a private
automobile inside the parking lot. The first time was about
6:00 a.m. and they left about 9:00 a.m. They walked around
but had no signs. Mahan first testified he believed a Buck's
truck was already there. The next time was on a different
date about 2 weeks later at about 8:00 a.m. In subsequent
testimony, Mahan said, one of the times a truck was there,
the other it wasn't but he wasn 't sure as to which time.
Buck' s was making a delivery to an individual customer,
Mrs. Silvia, when two men whom she testified told her they
were picketing-they were following the driver-came on
to her property. She requested them to leave but they
refused. According to Mrs. Silvia, one of the men17 "told
me why didn't I buy my propane from someone else" or `you
could always buy your gas from someone else." [Emphasis
supplied ] I note in this connection as in others where Paul
Peterloa was involved that he was one of the persons sent
out by the Local to follow the trucks and accordingly,
authorized to act on its behalf although not necessarily
directed to make such statements. However, I conclude the
Local is responsible therefor.18
As set forth, pickets went to the Saratoga Golf Course.
Although the pleadings admit picketing, according to
testimony of Mahan, they didn't picket but sat in the car at
the edge of the golf course with signs sticking up. They also
walked around without signs. Other testimony reflects the
trucks at Saratoga were from 100 to 400 yards from where
Mahan and Peterloa parked. There is also testimony of
Mahan that he and Peterloa did not actually picket Philco
or Silvia but had signs in the car, one lying upside down on
the dash and the other standing up.
Further there is an incident involving Central Concrete
Company where Gleason and Business Agent Foley went
and saw Fleet Superintendent Herbert. Gleason initially
testified as to the matter involving the Central Concrete
17 From other testimony, it is evident she was referring to Paul Peterloa. 1713, TXD at 1724; District 50, United Mine Workers 106 NLRB 903, TXD
18 See International Union of Electrical Radio Workers, etc., 134 NLRB at 922.
FREIGHT , CONSTRUCTION, GENERAL DRIVERS
Company that Respondent had a collective-bargaining
agreement with Central Concrete. He did not know that it
purchased its butane from Buck's but went on the premises
to talk to Superintendent Herbert to find out who filled the
storage tank with butane. Gleason said he told Herbert
Using the words over and over again -it's very possible that
we will be following a Buck's truck if it makes a delivery
here and of course we do have a contract with many of the
Teamsters here and I just wanted to let you know" and
. .it's very possible that if they make a delivery here we
will be here with picketing Buck's Gas Service." [Emphasis
supplied] Superintendent Herbert testified that Gleason
"advised me that (Local 287) was having some sort of
negotiations, or attempting to have with Buck's butane;
and he advised me to purchase my fuel requirements elsewhere
other than from them." [Emphasis supplied] According to
Herbert, Gleason also said, "That you wouldn't want any
broken windshields?" [Emphasis supplied] On cross-exami-
nation Herbert was asked whether Gleason's remarks were
made "on the level horse play or bantering orbocular level."
Herbert responded, "Let's say it wasn't on a friendly level
when somebody advises you to-in other words, effect the
change in the operation of their business for our benefit
.. . Gleason was subsequently again asked about the
incident and about the broken windshields conversation
and testified "I actually don't recall making any statements
of that kind, no." He was specifically asked by the Trial
Examiner whether he didn't remember or whether he was
saying he didn't say it and responded that he didn't
remember. I conclude that this was not a direct denial and I
find that the statement was made as testified to by Herbert,
whom I consider to be and find a credible witness.
During March, a truck of Buck's was situated across the
street at the location of Hemphill's Service Station. Buck's
from time to time had certain tire repairs made there and
the truck then had a flat tire. This lot was owned by one of
the owners of Buck's but leased to Hemphill. No employees
of Buck's were at that time with the truck or performing any
services in connection therewith. However, five pickets
were picketing the truck in sight of Hemphill personnel.
This did result in Louis Canepa, vice president of Buck's
who saw the picketing, crossing the street to inquire
concerning the picketing. Shortly after his presence the
pickets left. Hence, the picketing of the truck did not last
long, perhaps for 10 minutes. There is no question that this
did not conform to Moore Dry Dock standards regardless of
whether or not the location was across the street or the lot
owned by one of the owners of Buck's. However, it is true
that the incident was not of lengthy duration. More will be
said about this subsequently.
FINDINGS AND CONCLUSIONS
Except for the incidents involving the Concrete Company
and the Hemphill incident, it is questionable whether there
are any facts herein that differ markedly from the Estes
case, as will be shown upon analysis As for the Concrete
19 I note that the Container incident was also introduced as to
motivation and is not specifically alleged as a separate violation
20 The General Counsel, of course, contends Moore Dry Dock is
applicable only where its criteria and nothing else substantial is involved
21 The General Counsel also refers to a letter of February 13, 1969,
193
Company incident, while it goes to motivation it was not
specifically alleged as a separate violation nor was it
litigated as such. The record is clear that the General
Counsel offered evidence as to the Concrete situation only
as to the question of motivation or object and not as an
alleged violation in and of itself.19 The General Counsel in
his brief contends that the Respondent's secondary
objective in violation of the Act is established despite
Moore Dry Dock.20 He refers to conversations instituted
by a picketing union, regarding picketing which otherwise
meets Moore Dry Dock requirements and asserts: "It is such
direct evidence of conversations and contacts instituted by
Respondent Union in the instant case in the context of its
overall conduct which establishes Respondent's unlawful
motive in picketing at the premises of the various neutral
employers." The General Counsel lists: first, Respondent's
extensive campaign to notify Buck's customers of its
dispute with Buck's; second, the forwarding of a list of
Buck's customers by Respondent to sister unions with a
request they communicate with these customers; third,
Respondent's "campaign" to inform customers picketing
would occur in the event they received deliveries of propane
from Buck's; fourth, informing secondary employers that
"it would be to the best interest of all" to know about the
picketing; fifth, either asking customers why didn't they
buy their gas elsewhere or telling them to expect pickets if
they didn't find another supplier while the labor dispute
continued or advising that they would have pickets if
Buck's made a delivery or requesting that the customer stop
unloading a Buck's truck; sixth, Gleason's testimony that
he merely wanted neutrals to know whom to contact to
solve "the customer's problem" which "problem" the
General Counsel argues Gleason was seeking to cause by
the picketing; seventh, the testimony about Central
Concrete, coupled with the threat to break windshields; and
eighth, that at Hemphill all of the requirements of Moore
Dry Dock were not met.21 The General Counsel argues
persuasively from all the foregoing that the object of the
picketing was clearly in violation of Section 8(b)(4). He
contends that such establishes this as the object. The
General Counsel may well be correct. However, there is the
Moore Dry Dock decision as interpreted in the Estes case 22
to contend with.
What does Moore Dry Dock say?23 It says that if certain
specified conditions of picketing have been complied with
then there is no violation on the part of a Respondent at
least if such is all that is involved. These conditions are set
forth, supra, in footnote 5.
How does this compare with the Estes decision? In that
case, Trial Examiner Bott had found a violation concluding
that certain acts to be set forth had clearly shown a
secondary object and purpose. Chairman McCulloch,
dissenting, agreed with the Trial Examiner. The Board
majority, consisting of members Fanning and Brown, held
otherwise, reversed the Trial Examiner, and dismissed the
case. The record therein included acts similar to those
herein in many respects among which the Board found
from Gleason to another local in which he referred to a member of that
local who crossed a picket line and stated "I'm sure you do not condone
this type of action by your members "
22 Footnote 7, supra
23 92 NLRB 547
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included several measures "designed to limit the secondary
effects of the common situs picketing." One of these was
that Respondent caused to read to employees a letter
stating that the steward at all union terminals be advised
that the National Agreement did not give union employees
the right to stop work while an Estes vehicle and driver were
being picketed at another carrier's terminal. At a meeting
the right to conduct ambulatory picketing of Estes truck
was discussed. Instructions were read to employees which
emphasized the manner in which the picketing was conducted
at premises of other companies in order to conform to Moore
Dry Dock's standards. Employees were given cards to give
to anyone inquiring about the picketing, stating that they
had been instructed to say nothing around this terminal. The
Respondent therein sent letters explaining that it would
engage in ambulatory picketing, to approximately 125
secondary employers likely to be affected. They were
advised that the picketing would conform to Moore Dry Dock
standards and be directed exclusively at Estes employees.
Permission was also sought to enter the premises so as to
picket closer to the drivers, but it was stated that if this
permission were not granted, picketing outside the gates
would occur. The final provision in the letter requested the
cooperation of the secondary employer and asked that he
cease doing business with Estes during the course of the strike.
It asked the addressee not to consider this latter a "threat"
but stated his cooperation would "greatly assist Estes to
obtain a contract." The picket signs stated that the
picketing was addressed only to Estes.
Of 120 picketing instances therein, the General Counsel
offered only 3 indicating what he considered an unlawful
secondary objective. In one of these, Respondent's
President Hodson told a manager of another employer he
would give him 2 minutes to get the Estes truck outside the
gate and if not be would "throw a picket line up outside. " The
truck was ordered off the premises until the manager's
superior was contacted. In a second incident, another
employer's dispatcher was told that Respondent "would be
putting up a picket line at the gate." The dispatcher asked
what did he do now. Respondent's president replied "You
have an Estes truck here. " The dispatcher then ordered the
Estes truck off the property. The third incident involved a
truck followed to another motor line. Respondent's
president told its officials that the secondary employer was
"in trouble" and asked if it had received Respondent's
letter. The secondary employer was told by the Respon-
dent's president that unless the Estes truck left, the picketing
would start. The truck was ordered off the premises.
Respondent's president had stated the picketing would last
only while the Estes truck was on the premises.
There was also some testimony that a general union
membership meeting was held at which the union president
was asked by one of the members if an individual was
crossing the picket line could he be brought up on charges
before the Union's executive board and the union president
replied, "That any member could charge another member with
conduct unbecoming a member any time he so desired...."
The president also had stated when asked about crossing a
picket line that the members "would have to use a little
discretion. "24 Neither the Board majority nor the Trial
Examiner found evidence that any members were, in fact,
threatened, or otherwise interfered with in what they
actually did in ambulatory picketing areas. The Board
stated that the Trial Examiner had found that the remarks of
the union president coupled with the request in the
Respondent's letter that they cease doing business with
Estes and the union president's remarks at a meeting
indicated that the Union intended to give the secondary
employer two choices: cease doing business with Estes or face a
picket line "with all the normal consequences that a picket line
brings no matter how primary it is painted'." The Examiner
had found the entire course of picketing violated 8(b)(4)(i)
and (ii)(b), and the three threats to picket violated
8(b)(4)(ii)(B). He did not find the statements at the March 2
meeting to be violative.
The Union excepted and the Board majority agreed with
the exceptions and stated: "Contrary to the Trial Examiner
we are unable to conclude that Respondent's conduct evidences
an intent or object proscribed by the Act. "
The Board then said:
The Trial Examiner properly notes, and, indeed, no
party disputes, that the picketing itself was rigorously
tailored to meet the prescriptions of Moore Dry Dock. The
.picket signs unambiguously designated Estes as the
primary disputant, and the picketing itself lasted only as
long as the Estes trucks remained on the property of the
neutral employer. As a result, the neutral employers
themselves, and all others working or having business
there, were notified that Respondent's dispute was solely
with Estes. In this context, we do not find Hodson's
remarks to neutral employers on the three occasions
described above to constitute threats, coercion, or restraint
within the meaning of Section 8(b)(4)(ii)(B). In each of the
three statements, Hodson announced his intention to start
picketing if the Estes truck remained on the neutral's
property. We find this to be nothing more than a
legitimate expression of Respondent's intention to exercise
its unquestioned right to picket Estes at the neutral
employers' sites in the lawful manner prescribed by the
Board. Such statements do not constitute threats within
the meaning of Section 8(b)(4) of the Act, contrary to the
Trial Examiner's finding, nor are they evidence that the
picketing which followed was motivated by an unlawful
objective.
Similarly, we find no evidence of an unlawful motive in
the letter sent by Respondent to the neutral employers,
stating its intention to picket Estes trucks while they were
on the premises of the neutral, and announcing that such
picketing would be in strict conformity with Moore Dry
Dock standards. Quite to the contrary, the letter, by
assuring the neutral employers that any such picketing
would meet Moore Dry Dock standards, and by
disclaiming any intention to threaten the neutral, negates
any unlawful secondary objective. For these reasons, and
when viewed in the context of the letter as a whole, the
mere request, made in the last paragraph of the letter, that
the neutral employer cease doing business with the
primary employer during the course of the strike, cannot be
viewed as substantial evidence of an unlawful intent. We
note that a bare request addressed to a neutral employer
24 Cf. with In. 21, supra.
FREIGHT, CONSTRUCTION, GENERAL DRIVERS
asking that it cease doing business with a struck primary is
not itself violative of Section 8(b)(4)(ii)(B) 25 For all these
reasons, we perceive in the letter nothing which would
support the General Counsel's theory that the picketing
of February 18 and thereafter had a proscribed
secondary objective. [Footnotes except for "Servette"
omitted] We regard Hodson's equivocal statements at
the March 2 meeting as an equally untenable basis for
inferring that the picketing was tainted by an unlawful
object. [Emphasis supplied ]
All these considerations in combination persuade
us, contrary to the Trial Examiner, that the record
as a whole does not reflect an illegal object behind
the picketing by Respondent. Accordingly, we shall
dismiss the complaint in its entirety.
CHAIRMAN MCCULLOCH, dissenting, state:
Contrary to my colleagues, I would affirm the Trial
Examiner's carefully reasoned decision. As the Board,
Member Fanning dissenting, pointed out in L.G.
Electric [footnote omitted] the ultimate question in
these commonsitus picketing situations is the union's
true object. While the picketing itself may have conformed
to Moore Dry Dock standards, that fact alone is not
determinative. [Footnote omitted] In my opinion, the
evidence as a whole shows that Respondent's true
objective, at least in part, was to reach the secondary
employers and their employees by its picketing. The letter
sent to the neutral employers strongly implied that the
picketing at their sites and the cessation of business
between themselves and Estes were inextricably interwoven
in the Union's motivation . Against this backdrop,
Hodson's remarks to the three neutrals cannot be
interpreted other than as ultimatums to cease doing
business with Estes or face the consequences of a picket
line. Hodson made it unmistakably clear the picketing
was intended to provide economic leverage against the
primary employer by enmeshing the secondary employers
with whom the primary was doing business. The "external
evidence," LB E. W. v. Local 480, supra, at 1089,
establishes/beyond doubt that the picketing was meant to
coerce the neutral employers and induce their employees to
strike, rather than merely to follow the primarydispute in a
lawful manner. Thus, like the I Trial Examiner, I I would
find that Hodson's remarks to the three employers violated
Section 8(b)(4)(ii)(B) and, the Moore Dry Dock presump-
tion having been rebutted on the record viewed as a
whole, I would affirm'thel Trial IExaminer's I finding ^of
violations of Sections 8(b)(4)(i) and (ii) (B), of the Act.
[Emphasis supplied.]
The foregoing, with some variations and two exceptions to
be noted, is very similar to the factual situation herein.
While arguable differences exist between the instant case
and Estes, I do not consider them sufficient to cause a
different result. The Central Concrete and Hemphill
incidents, in my judgment, would not be sufficient without
more to change the result.
25 A' L R B v Servette, 377 U S 46
26 The Board recognized this in Moore Dry Dock, supra, where it also
stated at page 548.
Section 8 (b)(4)(A) is aimed at secondary boycotts and secondary
strike activities It was not intended labor dispute with an employer
195
This brings us back to the question of what is really
involved herein. As indicated the Board majority sees the
case one way while Chairman McCulloch and Trial
Examiner Bott find the secondary object. Were they
wrong? Was the General Counsel wrong then and here?
Actually, it is quite obvious that the object was secondary if
looked at as to purpose, but is it any different from the
uncomplicated Moore Dry Dock situation (except where
there is no principal place of business to picket)? What
happens to necessary accommodation of 8(b)(4), Section 13
and the proviso to 8(b)(4) if Estes is not correct?
One question to consider is what does or may picketing
normally do and whom does or may it affect in given
situations. Picketing at a principal place of business may
have an effect on (1) strikers, (2) nonstriking employees, (3)
replacements, (4) customers and their employees, (5)
suppliers and their employees, (6) trucking and other
delivery companies and their employees and, (7) the
remainder of the public. Whatever secondary effects are
here involved are necessarily subordinate to the right to
strike and picket for clearly primary purposes.26 Proceeding
from to proscribe primary action by a union having a
legitimate that situation to the typical Moore Dry Dock
ambulatory situation, where there is a primary place of
business that could be picketed, what would the Respon-
dent expect to have occur from its picketing at the place of
the secondary employers where the trucks are found, that it
could not accomplish in some way other than picketing?
Certainly if it merely wanted to notify the secondary
employer, it can write him a letter and say that it is on strike
at the primary and wishes him not to do business with the
primary without any picketing being involved. The latter is
evidently not a violation of Section 8(b)(4)(u)(B).26
Similarly, it could notify strikers, employees or replace-
ments at the principal place of business and unless its object
is harassment, what purpose can it have in following the
drivers? If it seeks to notify the employees of the second
employer what is its purpose in doing that? It appears fairly
obvious what that is. The Union may also incidentally be
notifying the general public or other suppliers, purchasers
or truckers to or from the secondary (who happen to be
there) but if its purpose is merely informative, it may
advertise this on its unfair list or otherwise in many ways
more extensively. Hence, it becomes fairly evident that
what is really desired is to bring the pressure of the picket
on the second employer either through his employees'
refusal to handle goods or otherwise or perhaps refusal of
the secondaries' suppliers, purchasers, or trucking compa-
nies refusing to enter the premises while a picket is there.
Moore Dry Dock, as previously stated has in essence
sought to effect an accommodation or adjustment to the
statutory provisions enumerated. When these rules are in
effect, various situations may arise including among others:
(I) the Union does nothing but picket in accord with Moore
Dry Dock, the pickets arrive, and the employer or his
employees or both see them? (2) The Union sends out a
letter saying we are not picketing you, we are only picketing
Picketing at the premises of a primary employer is traditionally
recognized as primary action even though it is "necessarily designed to
induce and encourage third persons to cease doing business with the
picketed employer"
26a See and cf Servette, fn 25 supra.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the truck. Does this add anything in effect that the
picketing of the truck would not do? May not the picketing
of the truck by itself be more confusing. Does the letter
have any impact other than clarification? (3) Next, the
secondary employer sees the letter or the picket or both,
and asks the union representative what can he do to prevent
this situation and the union representative replies if you
don't do business with Buck's you won't have a picket.
Does that create a violation; is that any more than is
obvious in the first place from the presence of the picket?
(4) The Respondent Union without a picket asks the second
employer not to do business with the struck employer. That
according to Servette, supra, is legal . (5) There is a picket of
a truck or the union representative says to the second
employer there will be a picket of a truck and we are asking
you not to do business with Buck's. As long as you do there
will be a picket. Does this really involve anything more than
Moore Dry Dock either with or without the letters. Isn't that
what is involved in the first place? Doesn't the second
employer know that the picket sign will be gone if he ceases
doing business with or without a communication from the
Union? What else can he assume or imply from this
situation?
Accordingly, if the Union, in essence, is making a
statement which amounts to pressure or a threat when
coupled with a picket to get the secondary employer to do
something but which has no different impact than the
picket alone without the statement should the result be
different? It appears to me, that if Moore Dry Dock is a
necessary accommodation of 8(b)(4) to Section 13 and the
subsequently adopted (in 1959) proviso to 8(b)(4) then the
other statements and conduct which occurred either in
Estes or herein have added nothing substantial by way of
impact that literally following Moore Dry Dock would not
almost equally effect or Moore Dry Dock allow.27 What
they may do is to furnish further evidence of the intent and
motive which should be evident without more in those cases
where there is a principal place at which the struck
employer and his employees can picket and be picketed.
The real question goes to the necessity of application of
Moore Dry Dock rules to ambulatory picketing under
certain conditions. Ambulatory picketing is not identical to
and does not have to be viewed in the same manner as the
other types of common situs picketing. Admittedly, there is
the problem of reconciliation of the enumerated sections of
27 In Moore Dry Dock, supra, the Board at page 551 also said:
We agree with the Trial Examiner that the Respondent's other
activities , its "hot" letters and appeals for cooperation to Moore
employees and other unions , invited action only at the situs of dispute.
Therefore under the holding in the Pure Oil case, [fn. omitted] they
msut be considered as primary action.
28 In my opinion if the current Moore Dry Dock standards are proper as
the statute. Also as pointed out it is evident that picketing at
the main place of business where there is a strike may often
have secondary effects but also does have so-called primary
ones that would directly affect either employees or strikers
proceeding to work or those who might seek to be
replacements. If this latter were not permitted, then the
right to strike (and picket) would have little or no
significant meaning and Section 8(b)(4) would be all
encompassing except in a rare instance where the employer
had no deliveries made at his place of business or no
secondary employers came to it in any way, shape, or form
if that can be envisioned.
Unless the Concrete Company and Hemphill incidents
materially affect such, the foregoing in my view reflects a
situation involving a policy matter for the Board rather
than for the Trial Examiner. I believe that serious issues
and questions can be raised as to this situation as they were
by both Trial Examiner Bott and Chairman McCulloch
concerning the application of Moore Dry Dock to a given
situation, and further that the Moore Dry Dock concepts
may be in need of reevaluation.28 In the light of the were to
make a decisive difference ,29 I believe the facts are
sufficiently similar that I am expected to follow the Board's
Hemphill sufficiently similar that I am expected to follow
the Board's ruling in Estes rather than to attempt to
enunciate a doctrine. The Central Concrete incident was
not alleged as a separate incident; 30 but offered as to
motivation. I do not consider that in this latter connection
it adds so materially to the other evidence of motivation,
which I have discussed as to change the conclusion. This
leaves the Hemphill Truck incident which, I believe, is
technically a violation, but which standing alone I do not
consider warrants an issuance of an order.31 Although as
indicated, I have reservations based on the foregoing and
the Moore Dry Dock decision as applied in the Estes case, I
find and conclude that Respondent has not violated
Section 8(b)(4)(ixii)(B) as alleged. Accordingly, I shall
recommend that the complaint herein be dismissed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions,
it is hereby recommended that the complaint in the above
matter be dismissed in its entirety.
applied to ambulatory picketing then the Estes decision is probably sound.
29 1 have previously indicated that I do not consider that these incidents
are sufficient to change the result.
30 In such case, it might form a predicate for a finding as a specific
threat and therefore coercive without regard to picketing.
31 Cf. Plauche, 135 NLRB 250 at 255.