General Drivers and Dairy Employees Local 563

National Labor Relations Board - Board Decisions

Jun 4, 1969

176 N.L.R.B. 386 (N.L.R.B. 1969)

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Drivers and Dairy Employees Local Union
563 and its Agent Robert Schlleve ; Local 139,
Internation Union of Operating Engineers,
AFL-CIO and its Agent Donald Shaw; Local
Union No . 3203, United Brotherhood of
Carpenters & Joiners of America , AFL-CIO and
its Agent Jerry Jahnke and Fox Valley Material
Suppliers Association , Inc. Cases 30-CB-221.
30-CB-222, and 30-CC-92
June 4, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On February 4, 1969, Trial Examiner Robert E.
Mullin issued his Decision in the above-entitled
proceeding, finding that Respondent , Unions had
engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth ip the attached Trial Examiner's
Decision. The Respondents filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner, with the additions and
modifications set forth below.
We cannot agree with the Trial Examiner's
finding that by Business Agent Shaw's inducement
of Moesch to quit work and by his threats to Rouse
as to what might happen to his equipment if it were
not removed immediately from the Seymour school
project Respondent Local 139, Engineers, violated
both Section 8(bX4)(i) and (iiXB ) of the Act.
Although it is uncontradicted that Rouse and his
employee Moesch were performing services for
primary employer Landwehr which supplanted the
work of that company' s striking employees, the
Trial Examiner concluded, purportedly under the
authority of Royal Typewriter Co.,' that because
neither Rouse nor Moesch had any knowledge of
the dispute between Landwehr and the Engineers,
Rouse was, therefore, within the protection of
Section 8(b)(4) and Business Agent Shaw's
inducement to Moesch and threats to Rouse
constituted the aforesaid violations of the Act. The
Trial Examiner found that the employer
unknowingly performed struck work, and reads
Royal Typewriter as precluding the application of
the "struck work" ally doctrine to such situations.
We do not agree either with this reading of Royal
Typewriter, or with his construction of Section
8(bX4) or his finding that the employer unknowingly
performed struck work.
It is true that Royal Typewriter holds:
. that an employer is not within the protection
of Sec. 8(b)(4) when he knowingly does work
which would otherwise be done by the striking
employees of the primary employer and where
this work is paid for by the primary employer
pursuant to an arrangement devised and
originated by him to enable him to meet his
contractual obligations...._
This is not to say, however, that the converse is
true, namely, that one who "unknowingly" performs
struck work for a given period will thereafter be
insulated from pressure from the striking union.
Rather, Royal Typewriter emphasizes that it is the
nature of the work performed by the employer
furnishing services to the primary employer which is
critical in determining whether that employer is a
neutral or an ally of the primary employer:
... Where an employer is attempting to avoid the
economic impact of a strike by securing the
services of others to do his work, the striking
union obviously has great interest, and we think a
proper interest, in preventing those services from
being rendered. This interest is more fundamental
than the interest in bringing pressure on
customers of the primary employer. Nor are those
who render such services completely uninvolved in
the primary strike. By doing the work of the
primary employer they secure benefits themselves
at the same time that they aid the primary
employer . . . .'
Moreover, this interpretation of the ally doctrine
was given express approval by the Supreme Court in
National Woodwork Manufacturers Association v.
N.L.R.B.' where the Court stated that neutrals lost
their protection "against secondary pressure, where
the secondary employer against whom the union's
pressure is directed has entangled himself in the
vortex of the primary dispute."'
The relationship between Rouse and Landwehr
constitutes precisely such an entanglement in the
present case. Landwehr, an excavating business, was
unable to perform the excavating work called for in
the contract because its employees were out on
strike. Accordingly, Landwehr leased a scraper and
operator from Rouse for $25 per hour to assist it in
'N.L.R.B. v Business Machine and Office Appliance Mechanics, et at,
Local 459 , LUX. (Royal Typewriter Co.), 228 F.2d 553, 559 (C.A. 2).
cert. denied 351 U.S. 962.
'Id. at 559.
'ld. at 558.
'386 U . S. 612.
'Id. at 627.
176 NLRB No. 51
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563
completing the contract assignment. Moreover.
Rouse's operator, Moesch, worked under the
supervision and control of Landwehr and at the
same time that a Landwehr machine was also
engaged in grading work. Thus, Rouse was
completely entangled in the primary's work, the
supplanted work of the striking employees, and for
which he received benefits while at the same time
aiding Landwehr, thus falling within the principles
of Royal Typewriter and National Woodwork.
Royal Typewriter would seem to impose upon an
employer the burden of determining whether or not
he is engaged in neutral or ally type work. In the
Royal case, for example, the existence of the strike
itself, the receipt of the checks from the primary
employer, and picketing in the general area were
held to be sufficient notice to the independents there
involved to indicate that the work they were doing
might well be farmed-out. In the present case, the
strike in question had been going on for a week or
more at the time Business Agent Shaw attempted
his intervention, the strike hgd received wide
publicity because of its economic impact upon the
community and the stories of violence which were
emerging therefrom. Rouse was asked by Landwehr
to help complete a project which Rouse admittedly
knew Landwehr could not complete with its own
employees, and Rouse was advised by Shaw that he
was performing struck work. In these circumstances,
we conclude that Rouse was finally and adequately
advised that he was performing struck work, and
that performance of such work made him an ally of
Landwehr in its dispute with the Engineers.
Accordingly, Business Agent Shaw's attempt to
persuade Moesch and Rouse to cease working on
the project and to remove their equipment did not
constitute proscribed secondary activity. The fact
that Shaw may have threatened both Moesch and
Rouse in attempting to accomplish his purpose does
not alter this conclusion, for the distinction between
primary and secondary activity is not determined by
the peaceful or violent nature of that activity but by
the type of work being done by the employer
furnishing services to the primary employer and the
relation of that work to the primary employer's
work.6 Accordingly, we do not adopt the Trial
Examiner's findings that Respondent, Local 139
violated Section 8(b)(4)(i) and (ii)(B) of the Act as a
result of Business Agent Shaw's conduct at the
Seymour project, and we shall order that the
allegations of the complaint respecting that conduct
be dismissed.?
'United Steelworkers v. N.L.R.B.. 376 U.S. 492, 501; N.L. R.B. v.
International Rice Milling , 341 U.S. 665, 672. It is true , of course, that
Shaw's statements to Rouse and Moesch to the effect that if the equipment
were not removed from the construction site it might be damaged by
having an iron bar thrust through the radiator or oil cooler may well have
constituted a violation of Sec. 8 (b)(1 )(A) of the Act. We find it
unnecessary to make such a finding, however . Inasmuch as Shaw's
statements were. not alleged as such a violation of the Act and because they
were similar to other such threatening statements alleged and found as
violations of that Section of the Act, such additional findings would only
ORDER
387
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders the Respondents, General Drivers and
Dairy Employees, Local No. 563, its officers,
agents , successors, and assigns, Robert Schlieve, its
secretary-treasurer, Local 139, International Union
of Operating Engineers, AFL-CIO, its officers,
agents , successors, and assigns, Donald Shaw, its
business representative, Local Union No. 3203,
United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, and Jerry Jahnke, its
businesses representative, all of Appleton,
Wisconsin, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
1. Delete the name "Lee J. Rouse Construction
Co." from paragraphs 1(a) and (b) and 2(b) of
section A and from paragraphs 1(a) and (b) and 2(b)
of section B.
2. Delete the name "Lee J. Rouse Construction
Co." from the first and second indented paragraphs
of both the Appendix A and B notices attached to
the Trial Examiner's Decision.
IT IS FURTHER ORDERED that the allegations in the
complaint to the effect that Respondent Local 139,
International Union of Operating Engineers,
AFL-CIO, violated Section 8(b)(4)(i) and ( ii)(B) of
the Act as a result of Business Agent Shaw's
conduct at the Seymour project be, and they hereby
are, dismissed in their entirety.
be cummulative.
'Member Fanning loins his colleagues in dismissing these allegations of
the complaint for the reasons given above . He relies also on the fact that
the work Rouse contracted to do for Landwehr, at the very least, was
related to the normal operations of Landwehr, one of the primary
employers involved in the areawide dispute with Respondents . In these
circumstances , for the reasons stated in the dissenting opinion in Budding
and Construction Trades Council of New Orleans. AFL-CIO (Markwell
and Hartz , Inc.), 155 NLRB 319, he finds that the appeals directed to
Rouse and his employee , Moesch , constituted primary rather than
secondary pressures within the meaning of the Supreme Court's decision in
Local 761, I.U.E. v. N.L.R B., 366 U.S. 667.
For the same reasons, Member Fanning would dismiss the allegations of
the complaint that Respondents violated Sec. 8(b)(i) and (i)(4)(B) by
engaging in the conduct discussed by the Trial Examiner under the
headings The Bloomer Incidents" and "The Kraemer Incidents." In his
view, Kraemer and Bloomer were performing work related to the normal
operations of Courtney and Plummer, Inc., one of the primary employers
involved herein , who had contracted with the State of Wisconsin to
construct a highway interchange on U.S. Highway 41, and that,
consequently , appeals to Kraemer and Bloomer and their employees asking
them td honor the picket lines established in furtherance of Respondents'
dispute with Courtney and Plummer constituted primary rather than
secondary appeals.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Trial Examiner: This case was
heard in Appleton, Wisconsin, on September 24-26, 1968,
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to charges duly filed and served,' and a
complaint issued on September 6, 1968. The complaint, as
amended at the hearing , presents questions as to whether
the Respondent Unions violated Section 8(bX4)(i) and
(ii)(B) and 8 (b)(IXA) of the Act. In their answers, duly
filed, the Respondents conceded certain facts with respect
to the business activities of the Charging Party and its
employer members, but the Respondents denied all
allegations that they had committed any unfair labor
practices.
All parties appeared at the hearing with counsel. They
were given full opportunity to be heard, to examine and
cross-examine witnesses , to introduce relevant evidence
and to argue orally. Oral argument was waived. On
October 31, 1968, all counsel submitted thorough and
comprehensive briefs.
Upon the entire record in the case and from his
observation of the witnesses, the Trial Examiner makes
the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
Fox Valley Material Suppliers Association (herein
Association ) is a Wisconsin corporation which exists, in
part, for the purposes of collective bargaining with the
Respondents on behalf of its employer -members. The
latter , seven in number , are known as follows: Badger
Highways , Inc. (herein Badger); Calnin & Goss, Inc.
(herein Calnin); Courtney & Plummer, Inc. (herein C &
P); Landwehr, Inc. (herein Landwehr); H. Schabo
Materials , Inc. (herein Schabo ); Twin City Concrete Co.
(herein Twin City); and Valley Ready Mixed Concrete
Co. (herein Valley). Of the foregoing, C & P alone sells
building and construction material valued in excess of $1
million to enterprises which themselves are employers
engaged in commerce or in industries affecting commerce.
It was undisputed, and the Trial Examiner finds, that
by virtue of their membership in the Association, the
seven enterprises named above constitute a single
employer for the purposes of collective bargaining with
the Respondents , and each is , individually, an employer
engaged in commerce or in an industry affecting
commerce.
In addition to the foregoing, other employers involved
in the incidents which figure in this case , are named
below:
Concrete Pipe Corporation (herein Concrete Pipe) is a
Wisconsin corporation , engaged at Menasha, in that
State, in the manufacture and sale of concrete piping. It
annually receives materials and supplies valued in excess
of $50,000 directly from points outside the State of
Wisconsin , and annually sells products valued in excess of
$50,000 to enterprises engaged in the building and
construction industry . In the normal course of its business,
Concrete Pipe purchases and receives building materials
from C & P.
In addition to its operations as a supplier of building
and construction material , C & P has been engaged at all
times material herein at Appleton , Wisconsin, as the
general contractor, under contract with the State of
Wisconsin, for the construction of a highway interchange
(herein known as the "Highway 41" Project) for a
contract price in excess of $1 million.
'The original charges in all three cases were filed on August 1, 1968.
First amended charges were filed in Case 30-CB-222 and 30-CC-92 on
August 14. 1968
Edward Kraemer & Son, Inc. (herein Kraemer), a
Wisconsin corporation, is engaged at Appleton,
Wisconsin, in the building and construction industry, and,
at all times material herein , has been engaged as a bridge
construction subcontractor of C & P at the "Highway 41
Project" for a contract price in excess of $150,000.
John F. Bloomer Co., Inc. (herein Bloomer), a
Wisconsin corporation, is engaged at Appleton, Wisconsin
in the building and construction industry, and at all times
material herein , has been engaged as a grading
subcontractor of C & P at the "Highway 41 Project" for
a contract price in excess of $300,000.
Schwerman Trucking Co. (herein Schwerman), a
Wisconsin corporation , is an interstate over-the-road
motor carrier and annually receives revenues in excess of
$200,000 for transporting goods and commodities across
state lines in interstate commerce . In the normal course of
its business, Schwerman hauls bulk commodities on behalf
of Valley and delivers them to Valley at its ready mixed
concrete plant in Appleton.
P. G. Miron Construction Company (herein Miron) is a
Wisconsin corporation , engaged as a general contractor in
the building and construction industry. Miron 's annual
revenues from employers engaged in commerce, or in
industries affecting commerce , exceed $50,000. At all
times material herein , Miron has been engaged at Neenah,
Wisconsin, as the general contractor for the construction
of a plant addition on the premises of the Manhatten
Rubber Company (herein called the Manhatten Project)
for a contract price in excess of $50,000. Further, in the
normal course of its business, Miron purchases ready
mixed concrete from Twin City.
Schindler Equipment Rental, Inc. (herein Schindler) has
been engaged at all times material herein as a
subcontractor of Miron at the Manhatten Project and
supplies cranes and crane operators to handle and pour
ready mixed concrete.
Combined Paper Mills, Inc . (herein Combined Paper) is
a Wisconsin corporation engaged at Combined Locks,
Wisconsin, in the manufacture of paper products. In the
course and conduct of its business , Combined Paper
annually ships products valued in excess of $50,000
directly to points outside the State of Wisconsin. At all
times material herein , Combined Paper has been engaged
in the construction of an addition to its plant, valued at
$12 million and called herein the "Papermill Project."
Likewise , at all times material , Calnin has been engaged
by Combined Paper to perform excavating work at this
same project.
Fox Valley Construction Co., Inc. (herein Fox Valley)
is a Wisconsin corporation engaged as a general
contractor in the building and construction industry.
Annually, it has revenues in excess of $50,000 for
furnishing services and materials to enterprises which
themselves are employers engaged in commerce, or in
industries affecting commerce . At all times material
herein , Fox Valley has been engaged at Appleton as the
general contractor for construction work on an addition to
the Outagamie County Airport (herein called the Airport
Project).
Lee J. Rouse Construction Co. (herein Rouse), is a
Wisconsin corporation engaged in general excavating and
earth moving for the building and construction industry.
At all times material herein, Rouse has been engaged in
performing earth moving at a school construction project
in Seymour, Wisconsin (herein called the Seymour
Project). Whether Rouse was a subcontractor to
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563 389
Landwehr on this project, or engaged in a joint venture
with Landwehr, is an issue in this case.
Upon the foregoing facts, the Respondents concede,
and the Trial Examiner finds, that all the
employer-members of the Association, as well as Concrete
Pipe, Kraemer, Bloomer, Schwerman, Miron, Schindler,
Combined Paper, Meyer, Fox Valley and Rouse are each
employers engaged in commerce or in industries affecting
commerce, as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
General Drivers and Dairy Employees Local Union 563
(herein called Teamsters , or, Local 563), Local 139,
International Union of Operating Engineers , AFL-CIO
(herein called Engineers , or, Local 139 ) and Local 3203,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO (herein called Carpenters , or, Local
3203) are labor organizations within the meaning of the
Act. It was undisputed , and the Trial Examiner finds,
that , at all times material herein , Robert Schlieve,
secretary- treasurer of the Teamsters , Jeff Curtin and
Marvin DeVries , both business representatives of the
Teamsters , Joseph Goetz , business manager of the
Engineers, Donald Shaw , business representative of the
Engineers , Jerry Jahnke , business representative of the
Carpenters , and Jack Jacobson , a representative of the
Appleton Building and Construction Trades Council, were
likewise agents of their respective labor organizations
within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
For several years prior to 1968, Local 563 had an
agreement with every member of the Association, whereas
Local 139 had a contract with only four members, viz, C
& P, Badger, Landwehr and Calnin. On May 1, 1968, the
collective- bargaining agreements which the Teamsters and
Engineers had with members of the Association expired.
After a breakdown in negotiations as to proposed new
contractual terms, the dispute culminated in a strike.
On July 29,' Local 563 struck the members of the
Association. On July 30, Local 139 struck the four
members of the Association with which it had had
contractual relations. Thereafter, both the Teamsters and
the Engineers engaged in picketing and strike activity,
which, at the time of the hearing, was still in progress.
The Respondent Carpenters did not call a strike against
the members of the Association, or engage in picketing.
Notwithstanding the strike, the members of the
Association continued to operate and to do business. The
alleged unfair labor practices involved herein arose out of
the ensuing conflict between the economic combatants
who are parties to this action.
The picket signs used by the Teamsters read:
"Employees of Fox Valley Construction Materials
Suppliers Association Members Teamsters Local 563 on
Strike." In some instances the name of the individual
employer was inserted. The other side of the placard read
"Our only dispute is with Fox Valley Construction
Material Suppliers Association." The signs used by the
Engineers read "International Union of Operating
Engineers, Local 139 on strike against the Fox Valley
Material Supplier Association." The portion of the sign
'A11 dates here involved occurred in 1968, unless otherwise specified.
reading "On Strike" was printed in red and the rest of the
lettering was in black.
The testimony discloses that picketing occurred daily at
the premises of the struck employers with both the
Teamsters and the Engineers frequently engaged in point
picketing at those sites . Sometimes the picket signs of
Local 139 appeared outside the premises of an employer
who employed no members of that union, as on July 29,
and August 5, when the Engineers picketed Valley Ready
Mixed. On other occasions, when only Teamster pickets
were on the scene , Business Agent Shaw of the Engineers
was the sole business representative present.' On at least
one day,' pickets with Engineer signs were at a jobsite in
the morning and later, when more pickets arrived, only
Teamsters placards were used. Robert Schlieve, the
dominant personality in the Teamsters organization,
conceded that throughout the strike he maintained close,
personal contact with Donald Shaw, principal business
agent for the Engineers in the Appleton area. On one
occasion , when representatives of the Association met for
purposes of negotiations with the Teamsters, and on
another occasion when they met with the Engineers, both
Shaw and Schlieve were present. Although denied by
Schlieve, the record establishes, and the Trial Examiner
finds, that throughout the period in question , many of the
strike activities of the Teamsters and the Engineers were
joint and coordinated.
B. Preliminary Statement
The Respondent Unions, in an able brief, contend that
the secondary boycott allegations here involved are ill
founded and without substance. In support of this
position, they argue that the situations presented in the
various incidents on which the General Counsel relies are
different from those involved in Section 8(b)(4) cases
which commonly arise in the construction industry.
Basically , it is their contention that in this case the
secondary boycott charges involved allegedly secondary
employers who provided men and equipment to be used in
careful and elaborate coordination with admittedly
primary employers to such an extent that the former lost
their status as neutrals.
After an analysis of the facts, more fully set forth later
in this decision, the Trial Examiner has concluded that
most of the incidents in this case involve the type of
coordination between primary and secondary employers
which is not unique, or different, but rather one which is
characteristic of construction work. N.L.R.B. v. Denver
Building and Construction Trades Council, 341 U.S. 675.
In only two instances is there some merit to the argument
pressed by the Respondent Unions in this regard, namely,
those incidents which are known in the record as the
"Highway 41" and "Seymour" projects. As to them, the
applicability of the Respondents' defense is considered in
detail later in this decision.
The General Counsel concedes that at various times
throughout the strike the Teamsters and the Engineers
have engaged in lawful primary picketing and,
conceivably, lawful ambulatory picketing. Apart from this
activity, however, the General Counsel and the Charging
Party contend that the record abounds in evidence of
unlawful Section 8(b)(4) activity on the part of the
Respondents and, in several instances, of unlawful
8(b)(1)(A) activity by the Teamsters and Engineers. To the
'As at the Manhatten Project on August 10.
At the Kraemer site on July 31.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facts in connection with the incidents relevant herein we
will now turn.
C. Alleged Violations of Section 8(bX4XI) and (iiXB);
Findings and Conclusions with Respect Thereto
1. Concrete Pipe
Concrete Pipe Corporation, a manufacturer of concrete
products, customarily has a complement of about 30
employees. In the normal course of its daily operations it
uses a substantial quantity of sand and stone which it
purchases from C & P and Landwehr. The Teamsters
have a contract with Concrete Pipe which does not expire
until April 1, 1969.
Prior to the outset of the strike against the Association
members, Don Koepke, president of Concrete Pipe, had a
conversation with Schlieve, in which Koepke thought that
he had secured assurances from the Teamsters that, even
if a strike began , his company would be able to secure an
adequate supply of materials from C & P and Landwehr.
On August 5, however, and shortly after the strike started,
Schlieve telephoned the office of Concrete Pipe, where he
spoke to Jerry P. Dunham, office manager for the firm.
After identifying himself, Schlieve declared "I understand
you got a load from Courtney & Plummer this morning."
When Dunham replied in the affirmative, Schlieve
continued "Well, let it be known that that's the last. .
.load of stone you'll get from them, or you're out of
business ." When Dunham protested that t & P had been
their supplier for many years, Schlieve responded "You'll
just have to find another source of supplies." Schlieve
concluded the conversation by asking that Dunham have
President Koepke call him and by adding ". . our
argument isn't with you, it's with Courtney & Plummer."
That same afternoon President Koepke told the
employees that his firm would continue to operate as long
as C & P would continue to supply them with their gravel,
but that if the employees walked off the job, the plant
would be unable to operate and he would have to shut
down until the strike ended. Jerome Schoultz, an
employee and the steward for Local 563 at Concrete Pipe,
went to the union hall at the end of the shift that day and
had a conversation with Business Agent DeVries on the
question of what the employees should do when pickets
appeared. Schoultz testified that DeVries did not state
that it was entirely up to the employees as to whether to
walk off the job if Teamster pickets arrived at the plant
gate . According to Schoultz' credible and uncontradicted
testimony, DeVries told him "that if pickets do appear
that we actually should walk off."
On August 13, Schlieve had a telephone conversation
with President Koepke in which the business agent
inquired if the Company had secured a supplier in place of
C & P. When Koepke replied in the negative, Schlieve
told him that if Concrete Pipe continued to do business
with C & P, the Teamsters would put up a picket line. He
further told Koepke that he would have until noon the
next day to find another source of supply or the Union
would shut him down. When Koepke protested that such
action could constitute a secondary boycott, Schlieve
replied, according to Koepke's credible and undenied
testimony, "Sonny, you'd better go back to law school
before you talk to me about labor law. . . You can't
afford to have your men walking off the job every half an
hour. And, once we get them off, we have places to take
them where it would take you a day to get them back.
You can't afford that." Before terminating the
conversation, Schlieve also alluded to other economic
steps which the Teamsters would take against the
company by resort to the health and welfare provisions in
their current contract. He concluded with the statement
that Koepke would "understand" what he meant by
reference to such a sanction.'
On August 14, Business Agent DeVries visited Koepke
at his office, told him that he was there to find out if
Concrete Pipe had found another supplier and warned ". .
. if you don't find something by noon we're going to put a
24-hours watch on you and on Landwehr."
On August 16, DeVries returned to the plant and
sought permission from Office Manager Dunham to
address the employees. Dunham acceded and then
proposed to accompany DeVries while he talked with the
men, but DeVries insisted that Dunham leave the area and
the latter did so.
William Keeney, an employee who was present at this
meeting, testified that DeVries told them that he was
certain they knew that C & P was on strike and that their
employer was still obtaining stone from C & P. According
to Keeney, DeVries advised them that any time a C & P
truck was on the premises they could "legally" walk off
the job. When one of the machine operators questioned
DeVries as to how an employee could walk off the job
and leave something hanging in mid-air such as a rotary
spindle and a wet pipe, the business agent replied "Well,
legally, you can, and they can't do anything about it."
DeVries did not tell the employees that it was entirely up
to them as to whether they walked off the job when the
pickets appeared. Keeney testified that it was apparent to
him that since DeVries called the meeting to tell them
they could leave the job when C & P trucks appeared,
that DeVries wanted them to walk off under those
circumstances. This conclusion was reinforced by the fact
that only a few days earlier DeVries had told Schoultz,
the Teamsters steward at the plant, that if pickets
appeared at the premises, the employees should walk off.
Under these circumstances, it is the conclusion of the
Trial Examiner that this was the same import which the
employees could draw from DeVries remarks to them on
August 16.1
In a letter dated September 19, Schlieve wrote Koepke
that the company had failed to make health and welfare
payments on one Robert Schroeder for the months of
October and November 1967. Schlieve demanded
arbitration of the grievance and went on to state that if
Concrete Pipe did not accede, the union would feel free to
take whatever action it deemed appropriate.
Koepke telephoned the Teamsters' office and spoke to
DeVries, Koepke reminded the business agent that the
Schroeder matter had been discussed by the parties and
dropped in December 1967, that the employee Schroeder
had been told prior to the termination of his 30-day
probationary period that he would have to get work
elsewhere and that he had been allowed to remain for a
short while longer only as an accommodation. DeVries,
'The quotations in this paragraph are from Koepke 's testimony. When
on the stand , Schlieve did not deny or contradict the testimony which
Kocpke gave When asked whether he had ever threatened Koepke that he
would shut down Concrete Pipe , Schlieve did not give a direct answer
Instead he answered only by stating that he had advised Koepke that the
Teamsters would exercise their rights under the Moore Drydock decision
(Sailors Union of the Paces (Moore Drydock Co.). 92 NLRB 547) and
picket his premises when employees of struck employers delivered material
Koepke was a credible witness and his account of this conversation is
found by the Trial Examiner to be an accurate summation of what
transpired.
'The quotations in this paragraph are from the credible. uncontradicted
testimony of Keeney.
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563
however, was adamant that the Teamsters intended to
adhere to the literal language of the contract in connection
with the case.
On September 21, Koepke mailed the Teamsters a
check for $63.32 to dispose of the Schroeder matter and
in an accompanying letter protested that he was doing so,
notwithstanding his conviction that the union had raised a
stale claim that was not subject to arbitration and for
which the company was under no legal obligation to pay.
Schlieve's threats to put Concrete Pipe out of business
or shut it down unless Koepke quit buying stone from C
& P and Landwehr constituted a patent violation of
Section 8(b)(4)(ii)(B). Nassau & Suffolk Building
Construction Trades Council, (Theresa Garden
Apartments, Inc.) 162 NLRB No. 13 (TXD). It was
likewise a violation of Section 8(b)(4)(i)(B) of the Act, for
Respondent Teamsters, when Business Agent DeVries, in
his meeting with the employees of Concrete Pipe, implied
that they should walk off the job at anytime that C & P
trucks were on the premises. General Truck Drivers and
Helpers Union Local 467 (Jones and Jones, Inc.), 171
NLRB No. 90 (TXD).7
2. The Manhatten Project
During the summer of 1968, the Manhatten Rubber
Company was engaged in the construction of an addition
to its plant. The general contractor for the job was P. G.
Miron Construction Company. In the course of its work
on this contract , Miron rented two cranes and operators
from Schindler Equipment Rentals , Inc. The latter began
working at the construction site about the middle of July.
On August 10, Schindler had two cranes at the
Manhatten site , one being operated by Carl Schindler,
president of Schindler, and the other by his employee
Eugene LeFeber. Both Schindler and LeFeber were
members of the Operating Engineers . On this occasion, C
& P ready mix trucks were delivering concrete and the
Schindler cranes were being used to move the concrete.
Overall supervision was being provided by Dave Voss,
superintendent for Miron.
About 10 a.m., Teamster pickets arrived at the scene,
and shortly thereafter, Business Agent Shaw appeared. He
went immediately to LeFeber and told him "You're
handling strikebound material . . .you know , them guys are
on strike for quite a while. . ." Shaw then demanded
that LeFeber produce his card in Local 139. When the
employee did so, Shaw examined it, wrote down the
number of the card, and when LeFeber inquired as to
what he was doing , Shaw told him that he was going to
try to take the card from him, fine him and kick him out
of the Operating Engineers.
Shaw then talked with Schindler who was some
distance away. According to Schindler's credible
testimony , Shaw told him that he was handling strike
bound material, that he should let LeFeber go and that he
'The Respondents contend that the meeting at which DeVries made these
remarks was confidential and that inquiry as to what the business agent
said was precluded by Building and Construction Trades Council of Tampa
(Tampa Sand and Material ). 132 NLRB 1564, 1565-66 . In that case the
Board held that a business agent's statements to the union membership
were not violative of the Act when he reminded them of their rights as
individuals not to handle products of primary employers . The protection of
that case, however , does not extend to the instant situation where DeVries
made the statements here involved in a context which made it clear to the
secondary employees that their union expected them to honor the picket
lines.
391
should quit himself. Sch(tidler did tell LeFeber to leave
the scene and the latter departed. Schindler then talked
with Voss, the Miron superintendent, about the prospects
of quitting, but Voss told him that that would be
impossible because the concrete pour then in progress was
for a large, solid concrete slab which had to be completed
before operations could cease. Schindler then related this
to Shaw. The business agent responded by telling
Schindler "...don't say I didn't warn you...you're going
to appear before the union court. . .you'll be fined."
Thereafter, as he was leaving , Shaw told Voss that "on all
your (Miron's)jobs you'll be picketed Monday morning."
The incident involving Schindler and LeFeber occurred
at a point about 300 feet distant from where the pickets
were stationed. At all times material Schindler was under
contract with Miron and was using his own cranes. On
cross-examination by counsel for the Respondent Unions,
Schindler was asked if he believed the picketing was
directed against his company and Miron. He replied in the
affirmative and when further asked for his reason for such
an answer he replied "Well, Courtney & Plummer didn't
have any union men there...."
Shaw testified that he merely told the Schindler crane
operators that there were pickets at the entrance to the
premises and that under their contract they were not
required to stay on the job. This testimony, however, was
totally lacking in any persuasiveness and is not credited by
the Trial Examiner. The account of Schindler and
LeFeber, on the other hand, was credible and withstood a
searching cross-examination by able counsel for the
Respondent Unions. For this reason, the Trial Examiner
concludes and finds that the incident in question occurred
substantially as related by Schindler and his employee.
On the basis of the foregoing facts, the Trial Examiner
concludes and finds that the Respondent Engineers, by the
actions of Business Agent Shaw described above, coerced
Schindler with an object of forcing Schindler and Miron
to cease doing business with C & P, thereby violating
Section 8(b)(4Xii)(B) of the Act. It was likewise a
violation of the same section of the Act, when Shaw, for
the same unlawful object, threatened Voss, Miron's
superintendent , after Miron had declined to discontinue
the concrete pour with materials supplied by C & P, that
the Engineers would picket all of Miron's projects the
following Monday morning . Local 825, International
Union of Operating Engineers (Morin Erection Co.), 168
NLRB No. 1; Local 825, Operating Engineers (American
Dredging Co.), 168 NLRB No. 34; Laundry, Drycleaning,
Industrial, Linen Supply and Dust Control Drivers Union
Local 209, International Brotherhood of Teamsters, (East
Bay Counties Dry Cleaners Association), 167 NLRB No.
6 (TXD). Finally, the threats which Shaw directed at
LeFeber to induce that employee to quit working for
Schindler, an object of which action was to compel
LeFeber's employer and Miron to cease doing business
with C & P, constituted a violation of Section
8(b)(4)(i)(B) of the Act. The Trial Examiner so finds.
United Brotherhood of Carpenters, Local 1839 (Kroeter
Constructior Co.), 160 NLRB No. 1.(TXD).'
'In further support of an earlier finding that the Teamsters and
Operating Engineers engaged in a joint and coordinated strategy, it is
significant that whereas the picketing at the Manhatten project was
conceded by both Shaw and Schlieve to have been conducted solely by the
Teamsters, Shaw was the only union official on the scene at the time.
Schlieve testified that earlier that morning he had ordered Teamster
pickets to report at the Miron site.
'In their brief, the Respondents contend that by such conduct as that of
Shaw with respect to LeFeber , and similar conduct as to other members of
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Airport Project in progress on the plant premises of Combined Paper
Mills, Inc The general contractor for this work was C. R.
Meyer & Sons. At the time, Combined Paper had
approximately 450 production and maintenance employees
at the plant, all of them members of the Pulp, Paper &
Sulphite Union. Meyer, as the general contractor, had
contracts or agreements with numerous building and
construction trades unions , including the Laborers,
Carpenters, Masons and Cement Finishers and the
Teamsters.
On August 29, while Meyer was engaged in work at the
Combined Paper premises, a crew of workmen for Calnin
& Goss arrived on the scene to repair a broken water line.
This job was contracted for by the mill and was unrelated
to the Meyer project. At the time, Calnin & Goss, of
course, was one of the struck employers in the
Association.
Shortly after the Calnin crew arrived, Elwyn F. Nelson,
project engineer for Meyer, received a telephone call from
Jack Jacobson whom Nelson knew as a representative of
the Appleton Building Trades Council. Jacobson inquired
as to whether Nelson realized that Calnin & Goss was
working on the site. Nelson replied that he had seen the
equipment, but that he did not know for whom Calnin &
Goss was working. Jacobson then told Nelson that he did
not believe that the Teamsters knew that Calnin & Goss
was on the scene , and that he hoped that the men and
equipment for that firm would be off the premises before
the Teamsters found out. After Jacobson further declared
that he did not want any trouble on the job, Nelson
suggested that he contact the mill directly.
Soon thereafter, John J. Rouman, chief engineer for
Combined Paper, received a telephone call from Jacobson.
The latter asked Rouman whether he realized that Calnin
& Goss was a struck company. After Rouman conceded
that he was unaware of any such fact, Jacobson went on
to tell him that if the Teamsters were to learn that Calnin
& Goss was on the premises, that union would promptly
establish a picket line. Rouman stated that Combined
Paper was most anxious to avoid any such development
because it had been plagued by strikes all summer. He
then asked Jacobson what other companies could be
secured to replace Calnin & Goss. After Jacobson
volunteered the names of three other firms, Rouman
assured him that Calnin & Goss would be asked to leave
the job by the end of the day.
Shortly thereafter, Jacobson again called Rouman, this
time to tell him that the Teamsters had learned that a
Calnin & Goss crew was on the premises and to question
Rouman as to what action he proposed to take. Rouman
replied that he had already told Calnin & Goss to finish
out the day and then get their equipment off the plant
property. Jacobson thereupon stated that he would contact
the Teamsters office and that if Rouman himself wanted
to contact that union, he suggested that a call be made to
Teamsters Business Agent Jeff Curtin.
Immediately after concluding his conversation with
Jacobson, Rouman telephoned Curtin. The latter indicated
to Rouman that he was fully aware of the situation at the
plant. Rouman assured him that he had already ordered
Calnin & Goss to finish out the day and then get off the
premises. Rouman further stated that since there was
some prospect that not all of the equipment would be
removed that very night, he would like to have Curtin's
assurance that the mere presence of the idle equipment
would not provoke a picket line the next day. Curtin
acceded to this request and concluded the conversation
with the warning that "equipment would be all right to be
At all times material herein, the Fox Valley
Construction Company, not a member of the Association
and not involved in a labor dispute with the Respondents,
was engaged in the construction of a runway extension at
the Outagamie County Airport. In connection with its
operations there, Fox Valley had a batch plant on the site
which it owned and operated for mixing all concrete used
on the project. C & P was the principal supplier of the
sand and stone which Fox Valley required at this batch
plant.
About 10 a.m. on September 6, pickets appeared at the
entrance used by the C & P trucks. Soon thereafter,
Business Agent Shaw approached Dennis Sorenson, an
employee of Fox Valley and a member of Local 139, who
was operating an end loader at the time. Sorenson
testified that Shaw asked to see his union book and, after
that was produced, Shaw questioned him as to whether he
realized that he was working behind a picket line. After
Sorenson acknowledged that he knew about the presence
of the pickets, Shaw took the employee's name and
number from the dues book and, upon handing it back,
told him "I hope you can keep this."
Shaw testified that in his conversation with Sorenson he
merely expressed the wish that the employee honor the
picket line. This account of what occurred, however, was
contradicted by the fact that in a letter dated September
16, the secretary of Local 139 notified Sorenson that
Shaw had charged that he had found Sorenson working
behind a picket line and that on October 1, the employee
would be tried on these charges. Further, at the instant
hearing, Shaw explained that he felt the charges were
justified because, in his view, the work which Sorenson
was doing behind the picket line violated the union's
constitution.
On the basis of the foregoing, and the conclusion of the
Trial Examiner that Sorenson was a credible witness, it is
apparent that the action of the business agent was
violative of the Act. The threats of reprisal against
Sorenson voiced by Shaw on the scene and followed by
the written charges issued by the Operating Engineers
were plainly calculated to induce the employee to cease
working for Fox Valley, a neutral in this instance, and
thereby compel the latter to cease doing business with C
& P. By such conduct Respondent Local 139 violated
Section 8(b)(4)(i)(B) of the Act. Los Angeles Building and
Construction Trades Council, (Interstate Employers
Association, Inc.), 170 NLRB No. 170 (TXD).
4. The Papermill Project
During August 1968, several construction projects were
Local 139 which will be detailed later herein , the business agent was simply
exerting his rights under the Supreme Court' s decision in N.L R B v.
Allis-Chalmers Mfg. Co. 388 U.S. 175. That case , of course, was
concerned with the protection afforded a union under the proviso to Sec.
8(b)(l)(A ). The Board , however, has held that the application of that
proviso is limited to that section of the Act only. San Francisco-Oakland
Mailers ' Union No. 18 (Northwest Publications . Inc), 172 NLRB No.
252. Contrary to the Respondent ' s position , the proviso to Section
8(b)(l)(A) accords no sanction to union membership discipline , such as
that involved here , which violates the secondary boycott provisions of
Section 8(bx4). Cf. Bricklayers and Masons Local No . 2 (Weidman Metal
Masters ). 166 NLRB No 26 (TXD). Glaziers Local Union 1184
( Tennessee Glass Company ), 164 NLRB No. 19; Laundry . Dry Cleaning.
etc.. Drivers Union Local 209 (East Bay Counties Dry Cleaners
Association , 167 NLRB No. 6, (TXD).
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563 393
on the premises, but it better not be operated."10
The testimony of both Nelson and Rouman was
credible and uncontradicted. Jacobson was never called to
the stand and no explanation was offered for his failure to
appear. On the basis of the foregoing findings, it is
apparent, and the Trial Examiner finds, that Jacobson was
acting as an agent or ally of the Teamsters in endeavoring
to compel Combined Paper and/or Meyer to cease doing
business with Calnin & Goss. By threatening Rouman
with a Teamster picket line if Calnin & Goss remained on
the job, Jacobson violated Section 8(b)(4)(ii)(B) of the
Act. Since he was acting, in this regard, as an agent or
ally of the Teamsters, the latter Respondent must be, and
is, found responsible for this unlawful conduct. American
Newspaper Guild, Local 11, 151 NLRB 1558, 1564.
5. The Seymour Project
Lee Rouse was the operator of Rouse Construction,
Inc., a small firm engaged in general excavating. Rouse
testified that he had approximately 12 employees in
season and from 15 to 20 pieces of equipment. At the
time of the incident in question Rouse did not have a
contract with Local 139, but by the time of the hearing he
had entered into an agreement with the Operating
Engineers.
Early in August, Rouse was engaged by Landwehr to
supply a scraper and an operator on the school
construction work known in the record as the Seymour
project. At the time, the general contractor on this work
was the Huffman Construction Company. Landwehr was
one of the subcontractors.
About August 15, John Moesch, Jr., a Rouse employee
and a member of Local 139, arrived at the Seymour
jobsite with a carryall scraper. While the Rouse
equipment was in use that morning, a Landwehr employee
was operating another machine stripping off the top soil
on the site.
Moesch testified, credibly and without contradiction,
that about midmorning, Business Agent Shaw came on
the job and questioned him as to whether he realized that
a strike was in progress. When Moesch disclaimed any
knowledge of a strike, Shaw told him that Moesch was,
indeed, on strike and that he would have to get his
machine off the site by evening. According to Moesch,
Shaw cautioned him that if the machine was not removed
"possibly someone might find out. . .that we'd been
working there and there'd probably be some damage to
the machine." Moesch thereupon quit work and reported
back to Rouse that he had been stopped by the business
agent for the Operating Engineers."
Rouse testified that after Moesch reported back, he
telephoned Shaw for an explanation. According to Rouse,
Shaw told him "you know that you're working with
Landwehr...[which] is on strike.... We're not allowing
any equipment to work on this site.... We also want you
to get your machine out of this property. . .today." Rouse
testified that up to that time he had no knowledge that
Landwehr was on strike. According to Rouse, Shaw
concluded the conversation by warning him that the
equipment would have to be moved off the property "for
your own good. . you don't want to come back there
tomorrow. . .and find an iron bar through each one of
those radiators and oil coolers." Rouse testified that when
he questioned Shaw as to who would wreak such damage,
the business agent replied "Well. , you know , when those
men are on strike . . .they get pretty desperate. . .you
know , ther 're carrying guns already.... They're shooting
glass out of trucks...."12
On cross-examination by counsel for the Respondent,
Rouse testified that when he had been hired by Landwehr
the latter had informed him that that firm was under
pressure from the Seymour school board to finish the
project as promptly as possible . He specifically denied any
knowledge of a strike involving the Landwehr employees
and testified that when he accepted the contract he had no
reason to believe that the work in question had been
delayed because of any labor dispute . Rouse 's testimony
in this connection was completely credible and undenied.
The Respondents assert that , during the incident here in
question , Rouse was performing "struck" work and, in
fact , was an ally of Landwehr . This defense would be
available to the Respondents in the present instance if
there was proof that Rouse and his employee Moesch had
gone to the Seymour jobsite fully aware of the fact that at
that time Landwehr 's employees were on strike . As found
above , however , there was no evidence in the record that
either Rouse or Moesch knew of any dispute between the
Engineers and Landwehr , or that they had any knowledge
that the Landwehr employees were on strike.
Consequently, the Trial Examiner concludes that, under
the circumstances here present , Rouse was within the
protection of Section 8(b)(4). N. L.R.B. v . Business
Machine and Office Appliance Mechanics , Local 459,
I.U.E. (Royal Typewriter Co.), 228 F.2d 553, 559 (C.A.
2), cert . denied 351 U.S. 962. Further , it must be held,
and the Trial Examiner so finds , that by Shaw's
inducement of Moesch to quit work, and by his threats to
Rouse as to what might happen to the equipment if it was
not removed immediately from the Seymour job, Local
139 violated both Section 8(b)(4)(i ) and (ii)(B) of the Act.
Local 282, International Brotherhood of Teamsters, (Twin
County Transit Mix, Inc.), 137 NLRB 858, 866;
Teamsters , Chauffeurs; etc. (Editorial Imparcial, Inc.),
134 NLRB 895, 901 ; Highway Truckdrivers and Helpers,
Local 107 (Riss & Company, Inc.), 130 NLRB 943,
946-948, enfd . 300 F .2d 317 (C.A. 3).
6. Schwerman Trucking Company at premises of
Valley Ready Mix
Valley Ready Mix, one of the members of the
Association which Respondent Teamsters had struck,
regularly received supplies of cement from a source in
Milwaukee . Schwerman Trucking Company, an
over-the-road carrier , regularly delivered the bulk cement
to the Valley premises.
On August 1, when several Schwerman trucks arrived
at the entrance to the Valley plant, there were from 12 to
18 pickets lined up across the driveway, a road that was
approximately 30 to 35 feet wide . On this occasion the
Schwerman drivers did not attempt to go through the
picket line , but waited until their supervisor arrived. When
he did so , the supervisor drove the trucks through the
picket line and effected delivery that day.
On August 5, Schwerman endeavored to make another
delivery. About 7 a .m. when the first truck arrived at
Valley, there were approximately 6 to 10 pickets at the
entrance . By 8:30, however , when two more Schwerman
trucks arrived, there were from 25 to 30 pickets at the
gate . The trucks had been escorted up to the Valley
"The quotation is from Rouman 's testimony.
"The quotations in this paragraph are from Moesch's testimony. "The quotations in this paragraph are from Rouse's testimony.
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrance by the local sheriff and from 8 to 10 deputies.
There was credible, undenied testimony that both Schlieve
and Curtin were present on the picket line at this time."
Joseph Martin, foreman for Schwerman, testified that
when he spoke to one of them and stated that he had to
try to get a truck across the line, he was told "I'll have
more men here within minutes." Martin then started the
first truck and attempted to drive through the entrance.
According to the credible and undenied testimony of
Richard Schouten, an official of Valley who was present,
when Martin started the truck, Curtin motioned for the
pickets to mass in front of it and lean against the side of
the vehicle. Schouten testified that the pickets remained in
this position until the sheriff and his deputies physically
removed them and allowed the truck to pass.
Martin remained on the premises for about 45 minutes.
After his truck was unloaded and as he was driving out
the gateway, Schlieve jumped on the running board and
spol(e to him. According to Martin, the Teamsters'
official told him that if he were Martin he would return to
Milwaukee with the other two trucks, because if an
attempt was made to deliver any more cement he
(Schlieve) could not guarantee that there would be no
violence. Martin testified that after this declaration by
Schlieve he abandoned any further efforts to unload the
two other truck loads of cement and returned to
Milwaukee. At the time of the hearing no Schwerman
trucks had made any deliveries to Valley since August 5."
By the threats which Schlieve voiced to Martin,
Schwerman's foreman, and to the Schwerman drivers that
their equipment would be damaged if they persisted in
attempting to enter the Valley premises and that violence
might ensue if they did not abandon their efforts to deliver
cement to Valley, all of which threats were successful in
inducing the Schwerman employees to quit work and to
cause Foreman Martin to halt any further attempts to
deliver cement to the strikebound premises, the
Respondent Teamsters violated Section 8(b)(4)(i) and
(ii)(B) of the Act. Local 32, Industrial Union of Marine
and Shipbuilding Workers of America (Rawls Brothers
Contractors, Inc.), 133 NLRB 1077, 1078. By the mass
picketing on August 5 which blocked ingress to and egress
from the Valley plant, the Respondent Teamsters likewise
violated Section 8(b)(1)(A) of the Act. Local No. 3887,
United Steelworkers of America (Stephenson Brick & Tile
Company), 129 NLRB 6, 7-8, enfd. 290 F.2d 587 (C.A.
5).
7. The Highway 41 Project
C & P was the prime contractor for the State of
Wisconsin in the construction of a highway interchange on
U.S. Highway 41 on the west approaches to Appleton,
Wisconsin. The contract was for a sum substantially in
excess of $1,500,000 and in its accomplishment, C & P
entered into subcontracts with various subcontractors,
among them being Edward Kraemer & Son, Inc., and
John F. Bloomer Co., Inc. The subcontractor with
Kraemer provided for the construction of certain bridges
for a price in excess of $150,000. The subcontract with
Bloomer covered excavation and grading for which C & P
was to pay over $300,000.
"According to the credible testimony of Richard Schouten.
"According to the credible and uncontradicted testimony of Daniel J
Garvey, assistant to the manager of Valley, in addition to Schiteve and
Curtin, Teamster Business Agent DeVries was also present during the
picketing, as was Don Shaw . business agent for the Operating Engineers.
A provision in the contract that C & P had with the
State of Wisconsin, which was also incorporated in the
subcontracts between C & P and the various
subcontractors read as follows:
(2) . the contractor shall furnish (a) a competent
superintendent or foreman who is employed by him,
who has full authority to direct performance of the
work in accordance with the contract requirements, and
who is in charge of all construction operations....
The foregoing is one of many provisions that are required
to be incorporated in all agreements involving Federally
aided primary highway construction.
In conformity with the above provision, C & P
designated Allen Rich, as its project coordinator on the
Highway 41 project. Rich, a graduate construction
engineer, was on the site at all times when any work was
in progress. He himself described his general duties as
being that of a "go-between" with the subcontractors, the
State Highway Commission, and C & P, in assuring that
the project was finished in accord with the plans and
specifications. In this connection, he frequently checked
with the superintendents for Kraemer, Bloomer and the
other subcontractors as to the work those firms were
performing. Apart from these responsibilities, when any C
& P employees were on the site, Rich was empowered to
supervise them in detail as to their work performance.
Rich described these latter duties as additional work, in
contrast with the more general type of supervision which
he had over the employees of the subcontractors and
which was exercised only through the respective
superintendents of the latter.
The Respondents contend that by virtue of the
provision in the contract which C & P had with the State
of Wisconsin, set forth above, the subcontractors on the
Highway 41 project were, in fact, joint employers, or
allies , in the dispute which C & P had with the
Respondent Unions. They further contend that the
direction which Rich gave to the employees of the
subcontractors, in effect, made them employees of C & P
and, therefore, beyond the scope of Section 8(b)(4).
The Respondents' contentions in this connection are not
supported by the evidence adduced in this case. The facts
with respect to Rich's duties establish that, as to the
subcontractors, he acted as a liaison man between them, C
& P and the State. Insofar as the employees of the
subcontractors were concerned, Rich had no direct control
over the manner in which they performed their work, not
one was on the C & P payroll and no employer-employee
relationship was established as to them and C & P.
Moreover, there was no evidence that the subcontractors
were owned or controlled by C & P other than the control
which C & P had by reason of its prime contractor status.
Lastly, there was no evidence offered that the bridge
building for which Kraemer was responsible, or the
excavating for which Bloomer had contracted, was work
which would have been performed by C & P or any other
struck firms, but for the strike. Applicable to the situation
here is the much quoted language of the Supreme Court
in N.L.R.B. v. Denver Building Trades Council, 341 U.S.
675, 689-690, where it stated:
We agree with the Board also in its conclusion that the
fact that the contractor and subcontractor were engaged
on the same construction project, and that the
contractor had some supervision over the
subcontractor's work, did not eliminate the status of
each as an independent contractor or made the
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563
employees of one the employees of the other. The
business relationship between independent contractors is
too well established in the law to be overridden without
clear language doing so.
See also : Local 761 I.U.E. v. N.L.R.B., 366 U. S. 667,
678-681 ; Building and Construction Trades Council of
New Orleans , AFL-CIO (Markwell & Hartz , Inc.), 155
NLRB 319, 326-328 , enfd . 387 F.2d 79 (C.A. 5).
Accordingly , and in the light of the foregoing , the Trial
Examiner concludes and finds that the relationship
between C & P, on the one hand, and Kraemer and
Bloomer , on the other , as set forth in the record of this
case , was substantially that of contractor and
subcontractor in the conventional sense , with each of these
three parties being an independent contractor."
a. The Bloomer incidents
Francis Bloomer , president of Bloomer , testified that
his firm had from 20 to 50 employees throughout the
year , that all the machine operators were members of
Local 139, and the current contract with the latter
organization would not expire until 1970. Bloomer's
excavating work on the Highway 41 project was started in
1967 and had proceeded , at intervals , to the time which is
material to the present proceeding . In the latter part of
July and early in August 1968, Bloomer had from 8 to 12
employees on the project . They were at work in the
vicinity of certain new ramps on the interchange which
were immediately west of Highway 41.
On August 1, Business Agent Shaw appeared at the site
and spoke to Bloomer . Present at the time and only a few
feet away were Bloomer 's superintendent , Herbert Ebert,
and four employees . Shaw requested that Bloomer
suspend operations at any time a C & P materials truck
arrived on the job .'s Bloomer testified that after he
declined to accede to the business agent 's request, the
latter told him that if a picket line was established his
employees either, would not or should not (Bloomer could
not recall which it was that Shaw said ) cross it . According
"Another provision of the contract which C & P had with the State
required that the prime contractor perform at least 51 percent of the work
covered by the agreement . Apparently , after having sublet substantially in
excess of 40 percent of the work involved, and in order to assure
compliance with this provision , C & P entered into an arrangement with'
Hedrich Construction Company, Inc., for the construction of certain
culverts . This agreement was different from that with Karemer and
Bloomer, for, in this latter contract, C & P agreed to rent Hednch's
equipment and put Hedrich 's men on the C & P payroll.
Initially , a paragraph in the complaint related to various alleged unfair
labor practices committed as to the Hedrich operations on the Highway 41
project . At the outset of the hearing , however , the General Counsel moved
to strike this allegation , on the ground that the complete picture as to the
Hedrich-C & P relationship had only then come to his attention and that
from this new information he was satisfied that no violation was involved.
Over the vigorous objection of the Respondents , this motion was granted.
In their brief, the Respondents advert to the Hedrich arrangement with
C & P and argue that , in fact , it was little different from that which
existed as to both Kraemer and Bloomer . The facts, however, as set forth
earlier and as disclosed by the record , are to the contrary . The Hedrich
relationship was unique and different from that which Kraemer and
Bloomer had with C & P, and the General Counsel was correct in
promptly conceding that the original allegations as to the Hedrich situation
should be stricken.
"Apart from the fact that C & P was the prime contractor on the job. C
& P. as noted earlier , was itself primarily responsible for approximately 51
percent of the work involved in the Highway 41 project . In this connection,
C & P was also a materials supplier of, among other items , ready mixed
concrete.
395
to Bloomer , Shaw told him that this was because of the
"rules and regulations ...." of the Operating Engineers.
The Bloomer employees continued to work at the site
until August 5. On that date , pickets from both the
Teamsters and the Engineers arrived , and the Bloomer
employees announced that they would not work behind
the picket line. Bloomer testified that as a result of this
incident he did not send any employees back to the
Highway 41 project at any time from August 5 to
September 4.
Late in August , Bloomer called upon Shaw at his office
and sought to persuade him that the excavation work
should be allowed to proceed because the character of the
soil would prevent any operations during the latter part of
the fall . Notwithstanding Bloomer ' s references to the
no-strike clause in his agreement with the Engineers,
Shaw refused to assure Bloomer that he would be
permitted to resume work . Shaw likewise vetoed
Bloomer 's suggestion that a special , or reserved, gate
could be set up for Bloomer 's employees.
Thereafter , in an exchange of telephone calls and
correspondence with Joe Goetz , secretary-treasurer of
Local 139, Bloomer explained that he was anxious to
resume operations because of weather conditions and the
character of the soil involved and , further , that he
proposed to put up a reserved gate for the Bloomer
employees . After promising Bloomer that he would
consider the latter proposal , on September 3, Goetz finally
told him that a reserved gate would not be acceptable to
the Engineers.
Notwithstanding this veto by officials of Local 139, on
September 3, Bloomer wrote a letter to both Goetz and
Shaw wherein he stated that on the following day his
company would resume work at the Highway 41 site and
that his employees would use a special entrance that
would be reserved exclusively for them. The letter set out
that a sign at this entrance would read as follows:
"This entrance is reserved exclusively for employees and
suppliers of John F . Bloomer Co ., Inc. All other
employees and suppliers do not use this entrance."
On the morning of September 4, Bloomer erected
barricades at the intersection of Casaloma Drive and
College Avenue and posted the sign which he had
described in his letter to the Engineers . This was at a
point approximately one quarter mile west and one
quarter mile north of the intersection of Van Dyke and
Spencer , where the pickets had stationed themselves at all
times prior thereto.
Bloomer thereupon directed Lawrence Larson, a
dragline operator , to move his dragline up to the
intersection and proceed to the excavation site . Bloomer
then removed the barricades so as to enable the machine
to move through the intersection . Significantly , there were
no pickets on the scene as Larson started moving forward.
After he had traveled some 400 to 500 feet , however, he
was stopped by three pickets with Teamsters signs. Larson
asked what would happen if he continued , and the pickets
told him that he could be fined or blackballed . After this
exchange , Larson stopped his machine , locked it, and told
Bloomer that he was quitting because the pickets would
not let him continue . From that time until the date of the
hearing , Bloomer performed no further work on the
Highway 41 project.
The testimony of Bloomer and Larson , set forth above,
was credible , undenied and uncontradicted . On the basis
of this testimony , the Trial Examiner concludes and finds
that the Engineers violated Section 8(bx4)(ii)(B) by
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shaw's conversation with Bloomer in which he predicted
trouble on the job if the employer persisted in working on
the Highway 41 project and warned that if the employees
crossed the picket line they would be violating the
Engineer's rules and regulations The Respondent
Engineers similarly violated the same section of the Act
when, late in August, Shaw told Bloomer that he would
not be permitted to resume work and on September 3
when Goetz likewise told him that he would not be
permitted to work on the Highway 41 project Finally, the
Teamsters violated Section 8(b)(4)(i) and (ii)(B) when it
ignored the reserved gate which Bloomer had set up and
established a picket line that was directed exclusively at
Larson, a Bloomer employee " Local 825 Operating
Engineers (Morin Erection Co Inc ) 168 NLRB No 1
(TXD), Local No 1140 Hod Carriers (Gilmore
Construction Co ) 127 NLRB 541, 544-545 enfd as to
this point 285 F 2d 397, 402 (C A 8), International Hod
Carriers Local No 1140 (Economy Forms Corporation)
126 NLRB 488, 489, fn 1, enfd as to this point 285 F 2d
394 (C A 8) Bricklayers Local No 2 (Weidman Metal
Masters) 166 NLRB No 26
b The Kraemer incidents
On the morning of July 31, Kraemer employees were
working near what is known in the record as the Spencer
Street Bridge About midmorning and after the C & P
ready mix trucks arrived, Shaw and several pickets
appeared at the scene Lyle Bodendein a crane operator
for Kraemer and a member of Local 139, testified that
Shaw came to him, told him to shut off his machine and
quit the job When Bodendem remonstrated that he had
heard of no strike, Shaw told hum "Well I'm
informing you now that they are on strike, and I want you
to quit right now " Bodendein, however, refused to quit
because he was in the midst of a concrete pour that was
only one-half completed
Shortly thereafter, while Bodendein was eating lunch
with about eight other Kraemer employees, Shaw again
appeared and singled out Bodendein This time, according
to the employee, the business agent told him, in the
presence of his fellow employees, that "if I didn't quit
operating that he [Shaw] would see to it I was called up
before the rest of the members of Local 139 and would
have to answer for not stopping work when he told me
to 11
That afternoon, troubled by the various strictures which
Shaw had applied to him, Bodendein telephoned the
Engineers' office to seek advice According to the
employee, at this time he spoke to a union representative
whom he did not know, but who was completely cognizant
of the situation on the Highway 41 project that day
Bodendein testified that in response to his question as to
whether Local 139 was on strike against Kraemer, the
union representative told him "No Local 139 is not on
strike," but that the latter then said to Bodendein "I
understand that you have two abutments to pour " When
Bodendein acknowledged that this was correct the union
representative told him "I'd advise you not to pour the
second abutment today " According to Bodendein, the
"As to the incident on August 5 when after a joint Teamster Engineer
picket line appeared at the site all the Bloomer employees walked off the
job the record does not indicate clearly whether C & P employees were
present at the time Since if the latter was the situation the picket line
could have been prmary in oliaracter so violation is found as to this
incident
same individual told him he could go back to work when
the C & P trucks left the job
That same morning, Shaw delivered substantially the
same type of ultimatum to James Gruber, another
Kraemer employee, as he had given to Bodendein Gruber,
operator of an end loader and a member of Local 139,
testified that Shaw came up to where he was working and
asked "Have you got an extra $300 9" Gruber testified
that Shaw then told him that if he did not quit he would
be in the same situation as "the operator up on top of the
hill," an obvious reference to Bodendein After Shaw
concluded, Gruber discussed the matter with Earl Glass,
his foreman, and when the latter told him that the
Engineers could not require him to quit, Gruber continued
to work
On the morning of July 31 the first placards displayed
by the pickets were Engineer signs Later, and after Shaw
spoke with Bodendem, more pickets arrived When this
happened, the Engineer signs disappeared and thereafter
that day the pickets carried Teamster signs i'
On August 1, both Gruber and Bodendein were at work
when two pickets arrived, one carrying an Engineer sign
and the other a Teamster placard The pickets asked the
two employees to honor the picket line The latter stated
that they would and thereupon stopped their machines and
performed no further work that day One of the pickets
identified himself to Bodendem as a business agent for the
Teamsters
On August 2 when Bodendein was back on the job,
Shaw again appeared, this time with two pickets and a
camera After he had taken a picture of Bodendem's
crane, he told the employee "I thought I told you to quit
operating I'll personally see to it that you're scratched
from the Operating Engineers Union and that you'll never
work for a union contractor again " Bodendein then
reminded the business agent that Kraemer had a contract
with Local 139 which would not expire until 1970 and that
this agreement also had a no-strike clause Shaw's
response was the declaration "A lot of these big
contractors are going to get hurt A lot of them will
be belly up before we get done with them " Shaw then
left, after Bodendein had made it clear that he planned to
continue working Bodendem testified that at the time of
this incident, no C & P trucks were present or engaged in
any concrete pour and that the place where he and Gruber
were working on this occasion was about a third of a mile
from the point where they had been on July 31
The Respondent Engineers did not allow either Gruber
or Bodendein to indulge for long in any thoughts that they
could flaunt with impunity any of Shaw's orders that they
cease work In separate letters, both dated September 18,
the Respondent Engineers notified Gruber and Bodendein
that they were to appear at a formal hearing on October
1 to answer charges filed by Business Agent Shaw that
each of them had violated the union constitution by
working behind a picket line and by having failed to cease
work after having been requested to do so by Shaw
On the afternoon of July 31 the same day that Shaw
threatened two Kraemer employees who were members of
Local 139, Jerry Jahnke, business agent for the
Carpenters, appeared at the site At the tune Kraemer had
four carpenters on the job All of them were members of
the Carpenters Union, but not of the local which Jal►nke
represented Earl J Glass, the Kraemer forem an, testified
that when Jahnke arrived, the latter told hire that he did
'Me foregoing fwdagc we based on the esedsbis a ldsesed uslseeoe r of
Allen Rich project coordaator for C & P
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563
not want any carpenters working while concrete was being
poured and that any who did would be subject to a $100
fine. Allen Rich, project coordinator for C & P, testified
that at this time he was in the presence of Jahnke when
the latter told two of the Kraemer carpenters to get off
the jobsite or be fined $100. Rich further testified that on
this occasion Jahnke directed one of the two carpenters to
carry this message to the other side of the bridge where
the two remaining carpenters were working. As a result,
all four carpenters quit work immediately and did nothing
further that day.
On August 5, Glass, who was himself a member of the
Carpenters, along with the four carpenters in Kraemer's
employ, called on Business Agent Jahnke at his union
office. Glass told Jahnke that neither he nor his men had
work permits from Local 3203, that they did not like
working without them, and that they wanted to get
permits. Jahnke refused to issue any. According to Glass,
Jahnke told them that "he was using those permits ... to
keep the hammer over our heads, to keep us from going
to work."
As a result of this conversation with Jahnke, Glass
returned to the Kraemer jobsite where he told Terry
Richards, superintendent for Kraemer, of,the conversation
at the union office. Richards thereupon shut the job down.
At the time of the hearing, none of the carpenters had
gone back to work.
All the testimony as to the incidents involving Kraemer
employees, given by Gruber, Bodendein , Glass and Rich
was credible, undenied and uncontradicted." On the basis
of this testimony, the Trial Examiner concludes and finds
that the Respondent Engineers violated Section
8(b)(4)(i)(B) of the Act by threatening fines, union
misconduct charges and loss of union membership against
Bodendein and Gruber to induce them to quit working for
Kraemer and thereby compel their employer to cease
doing business with C & P. Moreover, the Carpenters
engaged in a similar course of conduct. By the threats
which Business Agent Jahnke directed to Foreman Glass
and the employees under him that they would be fined and
that work permits would be withheld from them in order
"to keep the hammer over [their] heads," all obviously
designed to compel Kraemer to cease doing business with
C & P, the Respondent Carpenters likewise violated
Section 8(b)(4)(i) and (ii)(B) of the Act. Bricklayers and
Masons, Local No. 2 (Weidman Metal Masters), 166
NLRB No. 26; Local 370, United Association (Baughan
Plumbing and Heating Company), 157 NLRB 20, 21;
Lathers Local 252 (I.C. Minium), 159 NLRB 550, 551,
fn. I ; I. B.E. W. , Local 441 (Jones & Jones, Inc.), 158
NLRB 549, 554; Teamsters, Chauffeurs & Helpers Union,
Local 279 (Wilson Teaming Company), 140 NLRB 164,
166-167.
Similarly, since there was undenied testimony that on
July 31 there were Teamster pickets present at the scene
when Shaw threatened Gruber and Bodendein and, since
"One further line of testimony was offered by the General Counsel as
background evidence on the objective of the Respondent Unions. Robert
Watts, job superintendent for the Boulanger Construction Co., testified
that his company had a contract for work on an interchange on Highway
41 at Neenah , Wisconsin . According to Watts, on September 25, he met
with Shaw to discuss the problems connected with work on this job. Watts
testified that Shaw told him the only circumstances under which Boulanger
could work on the job without a picket line would be if C & P were off the
job. Watts testified that Shaw then told him that because C & P had
deposited strikebound material on the job at the Highway 41 interchange
in Appleton (the one here involved ) "that job was shut down until such
time as the dispute with C & P was settled."
397
on August 1, these two employees were asked to cease
work by Teamster pickets, one of whom described himself
as a Teamster business agent, the Respondent Local 563
must share responsibility for the work stoppages and the
illegal inducement here involved. Consequently, the Trial
Examiner finds that on July 31 and August 1, through the
conduct of its pickets, the Respondent Local 563 along
with the other Respondents in this case, violated Section
8(b)(4)(i)(B) of the Act.20
D. The Alleged Violations of Section 8(bXI)(A);
Findings and Conclusions With Respect Thereto
The General Counsel and the Charging Party allege
that the Respondent Unions engaged in numerous
violations of Section 8(b)(1)(A) during the course of the
picketing that occurred in July, August and September.
Most of the testimony as to these alleged violations was
undenied and uncontradicted. The mass picketing which
occurred at the premises of Valley Ready Mixed on
August 5 and which prevented the ingress and egress of
vehicles driven by employees of the Schwerman Trucking
Company has been described earlier herein and found to
have been a violation of Section 8(b)(1)(A) by the
Respondent Teamsters. The testimony as to the other
incidents here involved is set forth below.
July 31
Michael J. Garvey, a truckdriver for Valley, testified
that on this date he was delivering a load of plaster to a
customer in Freedom, Wisconsin. At a point near the
Outagamie Airport a car with two men in it passed his
truck and when directly in front of him suddenly slowed
down to a speed of less than 10 miles per hour. This
continued for some time when the car stopped in the
middle of the road and compelled Garvey to do likewise.
One of the men in the car then came back to Garvey's
truck and attempted to pry open the door on the driver's
side. By the time this man succeeded in wrenching the
door open, despite Garvey's resistance, his associate joined
him. According to Garvey, the two men asked "Don't you
know that you're hurting us, breaking the strike. . ." and
concluded by warning that if he drove his truck anymore
they would run him off the road. At this point the two
men departed. When Garvey returned to the Valley
premises he saw the same two individuals on the picket
line in front of the entrance.
On the evening of July 31, Thomas Schouten, another
employee of Valley, returned to the Valley premises in a
company truck. When he found seven or eight pickets at
the west entrance to the plant, to avoid trouble, he drove
to an entrance on the other side of the premises. Shortly
thereafter he was accosted in the middle of the plant yard
by Business Agent Schlieve. The latter testified that he
walked on to the employer's property to protest to
Schouten that the next time he should slow down in the
driveway to avoid running over one of the pickets.
Schouten testified that after calling him a "no good scab",
"Whereas the Respondents rely generally on Sailors Union of the
Pacific (Moore Drv Dock), 92 NLRB 547, as support for the type of
picketing here involved , the situation presented by the foregoing incident
was illustrative of others in this case where the appeal for employee
cooperation by work refusal was not limited to primary employees.
Consequently , the Respondents can not now escape the finding that such
picketing was as much a strike call to the employees of the neutral
employers as it was to those of C & P and other primary employers.
N L.R.B. v. Service Trades Chauffeurs, Salesmen & Helpers, 191 F.2d 65,
68 (C.A. 2).
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schlieve thereupon emitted a volley of oaths and
obscenities to which Schouten admitted that he replied in
kind. Schlieve then spit in Schouten's face. At this point
there were six to seven pickets at the west entrance and
behind the business agent." Shortly thereafter the night
watchman arrived on the scene, order was restored, and
Schlieve left the premises.
Schouten then went to another part of the yard where
he washed out his truck. After he finished that job, he
noticed about five of the pickets moving from the west
entrance to the area where the truck was parked. When
Schouten got in the truck to drive it to the parking lot,
two or three of the pickets picked up rocks off the ground
and, as he drove off, several rocks hit the side of his
truck.
August 1
On the above date, Robert Robbins, a driver working
for Calnin & Goss, arrived at the premises of Badger
Highways. As he stopped in front of the picket line at the
entrance, five or six pickets moved in front of his truck.
Several of them asked if Robbins remembered what
happened to Schabo's truck. When Robbins told them
that he knew nothing of that incident, they told him that
the driver of a Schabo truck had his windshield shattered
and that the same thing could easily happen to his truck.
With that, Robbins backed away from the Badger
entrance and made no further effort to enter that day.
The incident to which the pickets were undoubtedly
referring had occurred about 9:30 that same morning
when Robert Eiting, a driver for Schabo Materials, Inc.,
arrived at the Badger premises. There were from eight to
ten pickets at the entrance. it As Elting attempted to enter,
some of the pickets gathered in front of the truck and
others pounded on his vehicle. Eiting quickly decided that
he would back out of that entrance and try another gate
to the premises where there were fewer pickets. As he did
so, one of the pickets tossed hot coffee at him through an
open window of the truck.
Eiting managed to enter the Badger yard through the
other gate and when his truck was loaded with gravel
approximately 30 minutes later, he sought to leave by the
same gate . As he drove out, six to eight pickets showered
the truck with rocks. Some of the rocks came through the
open windows of the truck and one went through the
windshield.
Daniel Endter, a truckdriver for Twin City, one of the
strikebound members of the Association, testified that on
"It is likewise relevant , that whereas Schouten was a college student in
his early twenties , 5 feet 8 inches tall and weighing 160 pounds , Schlieve
was 45 years old. 6 feet 2 inches tall and weighed 220 pounds . At the same
time . Schouten . while a witness impressed the Trial Examiner as an
immature , opinionated young gentleman who fancied that he could control
the encounter with Schlieve by bold references to a nonexistent war record
and various techniques associated with karate . Schouten 's demonstration of
juvenility, however , provided no excuse for Schlieve 's threatening display of
temper and bluster.
"Eiting testified that some of the pickets carried placards stating that
they were on strike against the Fox Valley Material Suppliers Association
(of which Schabo and Badger were members ) According to Eitmg, there
was also one signed carried by a picket which was lettered in red . Schlieve
testified that one side of the standard signs used by the Teamsters read
"Our only dispute is with the Fox Valley Construction Material Suppliers
Association ." This sign was in black , whereas Shaw testified that part of
the Engineers ' sign was lettered in red. It would appear that on the
morning in question there were pickets from both Local 563 and Local 139
at the Badger entrance
this same day, as he drove his ready mix truck past the
Badger premises the pickets there shook their fists at him.
A few blocks further down the highway, a car pulled in
front of him and blocked the roadway. Two men in the
car, whom Endter recognized as striking employees of
Twin City, then got out of the car and sought to force
open the door to Endter's truck. One of them asked if
Endter would like a "roughing up." When the intruders
succeeded in opening the door, one of them attempted to
pull Endter out. The latter, however, successfully resisted
and, when the two men abandoned their efforts, they
warned Endter that he "could tell the rest of the bunch
the same thing would happen to them."2'
September 6
Paul Schmidt, director of safety for C & P, testified
that on the above date, after getting a report that a car
had blocked one of their drivers who was attempting to
make a delivery at the Outagamie Airport, he proceeded
to the airport.
According to Schmidt, as he followed two C & P
trucks on their route to the airport, an automobile which
had passed them earlier, slowed down to speeds of from
10 to 25 miles an hour, and stayed directly in front of
them. Schmidt testified that he recognized one of the
occupants of the car as a picket he had seen at the C & P
premises. As the C & P trucks approached the vicinity of
the airport another car took over the lead of the slowly
moving caravan . According to Schmidt's credible and
undenied testimony, this car was driven by Business Agent
Shaw.
When the C & P trucks finally reached the site of the
Fox Valley Construction Company at the airport, pickets
blocked ingress by walking slowly back and forth across
the entrance. After a considerable period of time the
trucks were finally able to get through by inching forward
slowly. As the trucks moved along, pickets who were not
in front of the vehicles kept pounding on them as they
went through the driveway. Schmidt testified that present
among the pickets at this time, in addition to Shaw, were
Teamster Business Agents Curtin and DeVries.
Concluding Findings
Earlier herein it was found that the Teamsters and the
Engineers, from the outset of the strike , engaged in a
coordinated campaign of picketing and other strategems
designed to accomplish their objectives. On the basis of
the findings of facts set forth above with respect to the
incidents which occurred on, or near, picket lines
maintained by these Respondents during the period from
late July and until September 6, the Trial Examiner
concludes and finds that Respondent Local 563 and
Respondent Local 139 violated Section 8(b)(1)(A) of the
Act by the following acts and conduct.
1. On July 31, by the conduct of pickets in stopping
Valley truckdriver Michael Garvey and threatening him
with bodily harm.
2. On July 31, by the conduct of pickets in throwing
rocks at the truck of Valley driver Thomas Schouten.
3. On July 31, by the conduct of Business Agent
Schlieve in spitting in the face of Valley driver Thomas
Schouten.
4. On August 1, by engaging in mass picketing and
"The quotations in this paragraph are from the credited , undenied
testimony of Endter
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563
blocking the ingress of Schabo and Calnin trucks
attempting to enter the Badger premises, by threatening
the drivers of these trucks, and by breaking the windshield
on one truck.
5. On August 1, by the conduct of pickets in stopping
Daniel Endter, a Twin City driver, assaulting him and
threatening him with bodily harm.
6. On September 6, by the conduct of Business Agent
Shaw in harassing and blocking C & P vehicles en route
to the Outagamie Airport Project.
7. On September 6, by the conduct of Business Agent
DeVries and Curtin, along with pickets, in blocking the
ingress of C & P vehicles attempting to enter the Airport
project. 2°
IV. THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, it will be recommended that they be
ordered to cease and desist therefrom and that they take
certain affirmative action designed to effectuate the
policies of the Act. In view of the manifold and serious
nature of the violations found as to Respondent Local 563
and Respondent Local 139, it will be recommended that,
as to those two unions, broad orders be entered.
CONCLUSIONS OF LAW
1. Badger , Calnin, C & P, Landwehr, Schabo, Twin
City and Valley, all of whom are employer members of
the Fox Valley Material Suppliers Association, and
Bloomer , Combined Paper, Concrete Pipe, Fox Valley,
Kraemer, Meyer, Miron, Rouse, Schwerman and
Schindler, are, and at all times material herein, have been,
employers engaged in commerce, or in an industry
affecting commerce within the meaning of the'Act.
2. Respondents Local 563, Local 139, and Local 3203
are labor organizations, and Robert Schlieve , Jeff Curtin,
Marvin DeVries, Joseph Goetz, Donald Shaw, Jerry
Jahnke and Jack Jacobson are agents , all within the
meaning of the Act.
3. By inducing and encouraging individuals employed in
industries in commerce, or affecting commerce, to refuse
in the course of their employment to perform services,
with an object of forcing or requiring Bloomer, Concrete
Pipe, Fox Valley, Kraemer, Rouse, Schwerman and
Schindler to cease doing business with the members of the
Association, the Respondents have engaged in unfair labor
practices affecting commerce within the meaning of
Section 8(b)(4)(i)(B) and Section 2(6) and (7) of the Act.
4. By threatening, coercing, and restraining Bloomer,
Combined Paper, Concrete Pipe, Kraemer, Meyer, Miron,
Rouse, Schwerman, and Schindler, where an object
thereof was to force or require the aforesaid employers to
cease doing business with the members of the Association,
the Respondents have engaged in unfair labor practices
affecting commerce within the meaning of Section
On the evening of August 3, Richard J Schouten , Jr., a salesman for
Valley and the son of Richard Schouten , vicepresident and general
manager of that company , received a telephone call at his home . The caller
did not identify himself, but declared to Schouten : "You better stop
hauling concrete out or we 're going to bomb you house ." Neither the
General Counsel nor the Charging Party offered any testimony that would
tend to establish the identity of the one who made this threat . Under these
circumstances , the Trial Examiner will recommend the dismissal of par.
14(g) of the complaint which attributes responsibility for this threat to the
Respondent Unions.
399
8(b)(4)(ii)(B) and Section 2(6) and (7) of the Act.
5. By restraining and coercing employees in the exercise
of the rights guaranteed in Section 7 of the Act, the
Respondents Local 563 and Local 139 have engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of
the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
the Trial Examiner hereby issues the following:
ORDER
A. The Respondent, General Drivers and Dairy
Employees, Local No. 563, its officers, representatives,
agents, successors, and assigns , and the Respondent,
Robert Schlieve, its secretary-treasurer shall:
1. Cease and desist from:
(a) Inducing and encouraging employees of John F.
Bloomer Co., Inc., Concrete Pipe Corporation, Fox
Valley Construction Co., Inc., Edward Kraemer & Sons,
Inc., Lee J. Rouse Construction Co., Schwerman
Trucking Co., and Schindler Equipment Rental, Inc., or
of any other person engaged in commerce, or in an
industry affecting commerce, to refuse, in the course of
their employment, to perform services, with an object of
forcing or requiring the aforesaid employers, or any others
to cease doing business with the members of the Fox
Valley Material Suppliers Association, Inc., or with any
other employer or person.
(b) Threatening, coercing, or restraining John F.
Bloomer Co., Inc., Combined Paper Mills, Inc., Concrete
Pipe Corporation, Edward Kraemer & Son, Inc., C. R.
Meyer & Sons, P. G. Miron Construction Co., Inc., Lee
J. Rouse Construction Co., Schwerman Trucking Co., and
Schindler Equipment Rental, Inc., or any other person
engaged in commerce or in an industry affecting
commerce, with an object of forcing them to cease doing
business with the members of the Fox Valley Material
Suppliers Association, Inc., or with any other employer or
person.
(c) Restraining or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at its offices, and
meeting halls , including all places where notices to its
members are customarily posted, copies of the attached
notice marked "Appendix A."23 Copies of said notice, on
forms provided by the Regional Director for Region 30,
after being duly signed by an authorized representative of
the Respondent Local 563, and by the Respondent
Schlieve, shall be posted by the said Respondents
immediately upon receipt thereof, and be maintained by
Respondent Local 563 for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Promptly after receipt of copies of the said notice
"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 by a decree of 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."
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Regional Director, return to him signed copies
for posting by John F. Bloomer Co ., Inc., Combined
Paper Mills, Inc ., Concrete Pipe Corporation , Fox Valley
Construction Co., Inc ., Edward Kraemer & Son, Inc., C.
R. Meyer & Sons, P. G. Miron Construction Company,
Lee J. Rouse Construction Co., Schwerman Trucking Co.,
and Schindler Equipment Rental, Inc., if they be willing,
at their places of business , including all places where
notices to their employees customarily are posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
as to what steps they have taken to comply herewith.t6
B. The Respondent , Local 139 , International Union of
Operating Engineers , AFL-CIO, and the Respondent,
Donald Shaw, its business representative , shall:
1. Cease and desist from:
(a) Inducing and encouraging employees of John F.
Bloomer Co ., Inc., Concrete Pipe Corporation, Fox
Valley Construction Co., Inc ., Edward Kraemer & Son,
Inc., Lee J. Rouse Construction Co., Schwerman
Trucking Co., and Schindler Equipment Rental , or of any
other person engaged in commerce , or in an industry
affecting commerce , to refuse in the course of their
employment to perform services , with an object of forcing
or requiring the aforesaid employers, or any others, to
cease doing business with the members of the Fox Valley
Material Suppliers Association , Inc., or with any other
employer or person.
(b) Threatening , coercing, or restraining John F.
Bloomer Co ., Inc., Combined Paper Mills, Inc ., Concrete
Pipe Corporation , Edward Kraemer & Son, Inc., C. R.
Meyer & Sons , P. G. Miron Construction Co., Inc., Lee
J. Rouse Construction Co., Schwerman Trucking Co., and
Schindler Equipment Rental , Inc., or any other person
engaged in commerce , or in an industry affecting
commerce , with an object of forcing them to cease doing
business with members of the Fox Valley Material
Suppliers Association , Inc., or with any other employer or
person.
(c) Restraining or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action , which is
necessary to effectuate the polcies of the Act:
(a) Post in conspicuous places at its offices and meeting
halls, including all places where notices to its members
customarily are posted , copies of the attached notice
marked "Appendix B."27 Copies of said notice, on forms
provided by the Regional Director for Region 30, after
being duly signed by an authorized representative of the
Respondent Local 139 , and by the Respondent Shaw,
shall be posted by the said Respondent immediately upon
receipt thereof and be maintained by Respondent Local
139 for 60 consecutive days thereafter, in conspicuous
places , where notices to members customarily are posted.
Reasonable steps shall be taken by Respondents to insure
that the said notices are not altered, defaced, or covered
by any other material.
(b) Promptly after receipt of copies of the said notices
from the Regional Director, return to him signed copies
for posting by John F. Bloomer Co ., Inc., Combined
Paper Mills, Inc ., Concrete Pipe Corporation , Fox Valley
Construction Co., Inc ., Edward Kraemer & Sons , Inc., C.
"In the event that this Recommended Order is adopted by the Board,
this provision 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 Respondents have taken to comply herewith."
"See fn. 25, supra
R. Meyer & Sons, P. G. Miron Construction Company,
Lee J. Rouse Construction Co., Schwerman Trucking Co.,
and Schindler Equipment Rental, Inc., if they be willing,
at their places of business , including all places where
notices to their employees customarily are posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
as to what steps they have taken to comply herewith."
C. The Respondent , Local Union No. 3203, United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO, and the Respondent, Jerry Jahnke, its business
representative , shall:
1. Cease and desist from:
(a) Inducing and encouraging employees of Edward
Kraemer & Son, Inc., to refuse in the course of their
employment to perform services, with an object of forcing
or requiring the aforesaid employer to cease doing
business with the members of the Fox Valley Material
Suppliers Association, Inc.
(b) Threatening, coercing, or restraining Edward
Kraemer & Son , Inc., with an object of forcing it to cease
doing business ith members of the Fox Valley Material
Suppliers Association, Inc.
2. Take the. following affirmative action, which is
necessary to effectuate the policies of the Act:
(a) Post in conspicuous places at its offices and meeting
halls, including all places where notices to its members
customarily are posted, copies of the attached notice
marked "Appendix C."39 Copies of said notice, on forms
provided by the Regional Director for Region 30, after
being duly signed by an authorized representative of the
Respondent Local Union 3203, and by the Respondent
Jahnke, shall be posted by the said Respondent
immediately upon the receipt thereof, and be maintained
by Respondent Local Union 3203 for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members customarily are posted.
Reasonable steps shall be taken by Respondents to insure
that the said notices are not altered, defaced, or covered
by any other material.
(b) Promptly after receipt of copies of the said notice
from the Regional Director , return to him signed copies
for posting by Edward Kraemer & Son, Inc., if the latter
be willing, at its place of business, including all places
where notices to employees customarily are posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the receipt of this Decision,
as to what steps they have taken to comply herewith.10
(d) Paragraph 14(g) of the complaint is dismissed.
"See fn. 26, supra
"See fn . 25. supra.
"See In. 26, supra.
APPENDIX A
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:
WE WILL NOT induce or encourage employees of
John F. Bloomer Co., Inc., Concrete Pipe Corporation,
Fox Valley Construction Co., Inc., Edward Kraemer &
Son, Inc., Lee J. Rouse Construction Co., Schwerman
Trucking Co., and Schindler Equipment Rental, Inc.,
or of any other person engaged in commerce, or in an
industry affecting commerce, to refuse, in the course of
GENERAL DRIVERS AND DAIRY EMPLOYEES LOCAL 563
their employment , to perform services , with an object
of forcing or requiring the aforesaid employers, or any
other , to cease doing business with the members of the
Fox Valley Material Suppliers Association , Inc., or
with any other employer or person.
WE WILL NOT threaten , coerce , or restrain John F.
Bloomer Co ., Inc., Combined Paper Mills, Inc.,
Concrete Pipe Corporation , Edward Kraemer & Son,
Inc., C. R. Meyer & Sons , P. G. Miron Construction
Co., Inc., Lee J. Rouse Construction Co., Schwerman
Trucking Co., and Schindler Equipment Rental, Inc.,
or any other person engaged in commerce, with an
object of forcing them to - cease doing business with the
members of the Fox Valley Material Suppliers
Association , Inc., or with any other employer or
person.
WE WILL NOT restrain or coerce employees in the
exercise of the rights guaranteed in Section 7 of , the
Act.
Dated By
GENERAL DkIVERS AND
DAIRY ENn^PtOYEES,
LOCAL 5031
(Labor Orrganization)
(Representative ) (Title)
Dated By
(Robert Schlieve) (Secretary-Treasurer)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, Second Floor,
Commerce Building , 744 North Fourth Street,
Milwaukee , Wisconsin , 53203, Telephone 414-272-3861.
APPENDIX B
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:
WE WILL NOT induce or encourage employees of
John F . Bloomer Co ., Inc., Concrete Pipe Corporation,
Fox Valley Construction Co., Inc ., Edward Kraemer &
Son, Inc., Lee J . Rouse Construction Co., Schwerman
Trucking Co., and Schindler Equipment Rental, Inc.,
or of any other person engaged in commerce , or in an
industry affecting commerce , to refuse , in the course of
their employment , to perform services , with an object
of forcing or requiring the aforesaid employers, or any
others to cease doing business with the members of the
Fox Valley Material Suppliers Association , Inc., or
with any other employer or person.
WE WILL NOT threaten, coerce , or restrain John F.
Bloomer Co ., Inc., Combined Paper Mills, Inc.,
Concrete Pipe Corporation , Edward Kraemer &7-So-n.
Inc., C . R. Meyer & Sons , P. G. Miron Construction
Co., Inc ., Lee J . Rouse Construction Co., Schwerman
Trucking Co., and Schindler Equipment Rental, Inc.,
or any other person engaged in commerce , or in an
industry affecting commerce , with an object of forcing
them to cease doing business with the members of the
401
Fox Valley Material Suppliers Association , Inc., or
with any other employer or person.
WE WILL NOT restrain or coerce employees in the
exercise of the rights guaranteed in Section 7 of the
Act.
Dated By
LOCAL 139,
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , AFL-CIO
(Labor Organization)
(Representative ) (Title)
Dated By
(Donald Shaw) (Business Representative)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , Second Floor,
Commerce Building , North Fourth Street , Milwaukee,
Wisconsin , 53203 , Telephone 414-272-3861.
APPENDIX C
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:
WE WILL NOT induce or encourage employees of
Edward Kraemer & Son, Inc ., to refuse , in the course
of their employment , to perform services, with an
object of forcing or requiring the aforesaid employer to
cease doing business with the members of the Fox
Valley Material Suppliers Association, Inc.
WE WILL NOT threaten , coerce , or restrain Edward
Kraemer & Son, Inc., with an object of forcing it to
cease doing business with the members of the Fox
Valley Material Suppliers Association, Inc.
Dated By
LOCAL UNION No. 3203,
UNITED BROTHERHOOD
OF CARPENTERS &
JOINERS OF AMERICA,
AFL-CIO
(Labor Organization)
(Representative ) (Title)
Dated By
(Jerry Jahnke) (Business Representative)
This notice must remain posted fo 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , Second Floor,
Commerce Building , 744 North Fourth Street,
Milwaukee, Wisconsin , 53203, Telephone 414-272-3861.