General Drivers & Dairy Employees Loc. Un. 563

National Labor Relations Board - Board Decisions

Jun 24, 1970

183 N.L.R.B. 1023 (N.L.R.B. 1970)

GENERAL DRIVERS & DAIRY EMPLOYEES LOC. UN. 563
General Drivers and Dairy Employees Local Union
563 and Northern Contractors Supply, Inc.
General Drivers and Dairy Employees , Local Union
563; Local Union No. 630, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO,
and Fox River Valley District Council of Carpen-
ters and their agent Jerry Jahnke ; Bridge , Struc-
tural and Ornamental Ironworkers, Local No. 8,
AFL-CIO, and its agent Peter Succa, and
Northern Contractors Supply, , Inc. Cases
30-CB-287 and 30-CC-118
June 24, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On February 16, 1970, Trial Examiner John P.
von Rohr issued his Decision in the above-entitled
proceeding, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
they cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter the Respondents
and the General Counsel filed exceptions to the
Trial Examiner's Decision and briefs, and Northern
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with these cases
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, the
briefs, and the entire record in these cases, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the addi-
tions and modifications set forth below.
The Trial Examiner recommended only a narrow
8(b)(4)(B) order against each of the three Respon-
dent labor organizations, while at the same time
recommending that each post a broad notice. In
view of his remedy section, we find this inadvertent
and that he intended to recommend a broad order
only against Local 563. We modify the Recom-
mended Order and notices accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
1023
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondents,
General Drivers and Dairy Employees Local Union
563; Local Union No. 630, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and
Fox River Valley District Council of Carpenters
and their agent Jerry Jahnke; Bridge , Structural and
Ornamental Ironworkers, Local No. 8, AFL-CIO,
and its agent Peter Succa; and their officers, agents,
and representatives, shall take the action set forth
in the Trial Examiner's Recommended Order, as so
modified:
1. Add to paragraph 1(a) the words "or, with
respect to the Respondent General Drivers and
Dairy Employees Local Union 563, with any other
employer or person."
2. Delete from Appendixes A and C the words,
", or with any other employer or person," and
from Appendix B the line for Succa's signature.
3. Add to Appendix C a line for Succa's signa-
ture as deleted from Appendix B; and substitute the
words "Labor Organization " for the word "Em-
ployer" below the name of the Union.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon
charges duly filed, ' the General Counsel of the Na-
tional Labor Relations Board, by the Regional
Director for Region 30 (Milwaukee, Wisconsin), is-
sued a consolidated complaint on October 22,
1969, against General Drivers and Dairy Em-
ployees, Local Union 563; Local Union No. 630,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, and Fox River Valley District
Council of Carpenters and their agent Jerry Jahnke;
Bridge, Structural and Ornamental Ironworkers,
Local No. 8, AFL-CIO, and its agent Peter Succa,
herein called the Respondents or the Unions, alleg-
ing that they had engaged in unfair labor practices
within Section 8(b)(4)(i) and (ii)(B) of the Na-
tional Labor Relations Act, as amended, herein
called the Act. In addition, it is alleged that
Respondent Teamster Local 563 engaged in unfair
labor practices within the meaning of Section
8(b)(1 )(A) of the Act. The Respondents deny the
allegations of unlawful conduct alleged in the com-
plaint.
Pursuant to notice, a hearing was held before
Trial Examiner John P. von Rohr in Neenah,
Wisconsin, on November 12 and 13, 1969. All
' The original charge and a first and a second amended charge in Case
30-CC-I 18 were filed on September 17 and 18 and October 14, 1969,
respectively The charge in Case 30-CB-287 was filed on September 19,
1969
183 NLRB No. 101
1024 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
parties were represented by counsel and were af-
forded full opportunity to adduce evidence, to ex-
amine and cross-examine witnesses, and to file
briefs. Briefs have been received from the General
Counsel, the Respondents, and the Charging Party,
and they have been carefully considered.
Upon the entire record in this case, and from my
observation of the witnesses, I hereby make the fol-
lowing:'
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
Northern Contractors Supply, Inc., is a Wiscon-
sin corporation having its principal place of busi-
ness located at Neenah, Wisconsin, where it is en-
gaged in the fabrication of reinforcing steel and the
distribution of various building supplies for the
building and construction industry. During the 12
months preceding the hearing herein, it purchased
goods and materials valued in excess of $50,000
from sources located directly outside the State of
Wisconsin. The Respondents concede, and I find,
that Northern is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATIONS INVOLVED
General Drivers and Dairy Employees, Local
Union 563 ; Local Union No. 630 , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO, and Fox River Valley District Council of
Carpenters ; and Bridge , Structural and Ornamental
Ironworkers , Local No . 8, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Northern Contractors Supply, Inc., herein called
Northern, has a shop on its premises where it is en-
gaged in the fabrication of reinforcing steel bars
into various sizes and shapes. Employing approxi-
mately nine employees at the time material hereto,
these include eight production employees and one
truckdriver.3
About October 1967, Northern voluntarily
recognized Respondent Local 563 as the collective-
bargaining agent for a unit comprised of the above
employees. Unable to reach a collective-bargaining
agreement, Northern's employees at a union meet-
Certain errors in the transcript have been corrected
One of the production employees is also a part - time truckdriver
Unless otherwise indicated, all dates hereinafter refer to the year 1969
' The picketing began on the first day of the strike and continued beyond
the period noted above While the record is not clear on the point , Respon-
dent 's brief indicates that the picketing ceased about the time of the hear-
ing herein
' The pickets in each of the incidents described herein were comprised of
Northern's striking employees Christian, who was employed with the
ing held on September 4, 1969, voted to go or,
strike.4 The strike, an economic one which began
on September 4, continued throughout the period
material hereto.
B. The 8(b)(1)(A) Violations
The complaint alleges that Respondent Local
563 violated Section 8(b)(I)(A) of the Act during
its picketing of Northern's plant premises. The al-
leged unlawful conduct occurred on various days
between September 13 and 18, 1969, and involved
the striking employees on the one hand, and em-
ployees who had been hired to replace them on the
other.' Since the testimony adduced by the General,
Counsel concerning this conduct is uncontroverted
and was given by witnesses whose testimony I
credit, I find that the following incidents occurred:
1. On September 13, about 8 a.m., Steve
Christian drove his car to work and observed a
group of sign -carrying pickets at the entrance to the
premises.' As he drove into the premises, some of
the pickets threw rocks at his car grill while others
kicked stones at the side of the car. Picket Harry
Kemp came up with a large stick and motioned
with it as if to strike the front windshield. He then
went to the rear of the vehicle and at this point
struck the right taillight of Christian's car with such
force that it knocked out the glass.
2. On the morning of September 15 or 16, a
group of three or four pickets were present near the
plant entrance. One of the pickets hurled a tomato
which struck under the rear window of Jerome
Eiden's car as he was driving into the premises.
3. On September 15 or 16, Steve Christian ob-
served that three or four pickets were standing in
the driveway entrance about 3 or 4 feet from each
other. Christian slowed down as he approached, an-
ticipating that the pickets would step aside to let
him through, as they had in preceding days. This
time they did not. Accordingly, in order to avoid
hitting them, Christian was required to drive
around and use a different entrance.
That same day Christian parked his car on the
plant premises between the warehouse and the
shop. When he returned to his car after work,
about 1 1 p.m., Christian found that the right front
side window of his car had been smashed. He ob-
served a large rock on the ground nearby. Clearly,
this was no accident. Upon the entire record, in-
cluding the other proven incidents in which the
pickets were involved, I am satisfied and find that
the responsibility for this act of vandalism must lie
with the pickets of Respondent Local 563.7
Company for only 3 weeks, identified Harry Kemp and Larry Feistel as
being present in the above group Rodney Wussow, another employee who
corroborated Christian, identified further pickets as being employees
Dixon Jacobson and Edward Weller
' Significantly, the credited and unrefuted testimony of Christian and
Rodney Wussow reflects that, whereas the pickets still were present at this
hour during the preceding 2 weeks, they had disappeared when Christian
came to his car on the evening in question
GENERAL DRIVERS & DAIRY EMPLOYEES LOC. UN. 563
4. Jerrold Mulvey worked until his quitting time
(8 p.m.) on September 16, at which time his
brother, Edward, and Michael Thompson, a friend
of Edwards', came to the plant to call for him. Ed-
ward and Michael entered the warehouse and
waited for Mulvey to punch out. As the three
walked past a nearby building toward Edward's car,
they observed Kemp and three other pickets stand-
ing at a coerner of the building. In the words of
Mulvey, the following then occurred:
And one guy [subsequently identified as
Kemp] came up and grabbed me on the arm
and he says, "do you have any job?" And I
says, "no." And he says, "well, you'd better
find one." And as he was saying that, he was
shoving me into a ... trailer or something like
that, and he says, "well, you'd better get one. If
you come back tomorrow, you get your ass
kicked in," and then he let go and I started
walking away and I heard him say to my
brother, Edward, and Mike that if they come
back, they'd smash the windows in his car.
5. On September 17, Rodney Wussow felt
something whiz past his head as he was walking to
the shop from the office. He thereupon saw a rock
land on the ground which came from the direction
of the pickets who were at his rear. The entire in-
cident was observed from the office by Linda Bur-
hans, the secretary-bookeeper for Northern, who
identified Larry Feistel as the picket who threw the
rock at Wussow.
6. Additional instances of rock throwing oc-
curred on September 17 and 18. Thus, on the
former date Jerrold Mulvey observed a group of
four or five pickets throw stones or rocks at a truck
owned by the Hall Company as it was leaving the
premises of Northern Contractors. He further
testified that he heard these objects strike the sides
of the vehicle. On the following day, September 15,
Mulvey was performing some work out of doors on
the plant grounds with employee Tom Rohr. A
number of stones were thrown at these employees
from the direction of a group of four or five pickets
standing about 60-70 feet away. Although Mulvey
did not see who threw the stones, employee Linda
Burhans observed and identified Larry Feistel as
the one who threw a stone at these employees on
this occasion.
7. Employee Burhans also observed a number of
instances where the striking employees blocked
trucks from entering the plant . Thus , on September
17 she observed Lawrence Driessen come up to the
Northern driveway in a truck to pick up a load of
steel, at which point picket Larry Feistel drove his
car across the driveway so that Driessen could not
pass. Pickets Harold Kemp, Edward Weller, and
"Thus, Burhans testified "They would stop just about every one of the
trucks I'll say ten to fifteen they stopped by walking in front so that the
trucks could not get in "
"See also Local 379, Building Material & Excavators , IBT (Catalano
Bros ), 175 NLRB 459
1025
Dixon Jacobson thereupon came up and stationed
themselves in front of the truck. Although Feistel
later moved his car, the other pickets continued to
block the entrance and would not permit Driessen
to enter.
Burhans further testified, without contradiction,
that during the next 2 weeks she observed 10 or 15
other vehicles which were prevented from entering
the premises by pickets who blocked the plant en-
trance."
Turning to my conclusions with respect to the
above conduct, it is true, as Respondents point out,
that no officer or official agent of Local 563 was
present on the picket line when any of this conduct
occurred. However, it is noteworthy that Respon-
dents concededly appointed no one to be in charge
of the picket line. Robert DeVries, Respondents'
business representative who serviced Local 563 at
the time material hereto, testified that he came to
the picket line several times each day for periods
ranging from 15 minutes to 1 hour. Although
DeVries conceded that he was in charge of the
picketing activities, it is apparent that there were
long periods during each day that he was not
present on the picket line.
As reflected in the evidence set forth above, the
conduct here complained of is not of an isolated
nature, nor is this the case of an isolated picket
getting out of hand. On the contrary, the incidents
engaged in were repetitive, they were of a violent
and aggravated character, and they were par-
ticipated in by a majority, if not all, of the members
of Respondent who went out on strike. Respondent
Local 563 Union, in part itself comprised of these
very members who voted to strike, cannot now
avoid responsibility for the unlawful conduct mere-
ly because its officers or agents did not happen to
be present when it occurred. Thus, in Drivers,
Salesmen, Warehousemen, etc., Local 695, IBT
(Tony Pellitteri Trucking Service), 174 NLRB 753,
the Board adopted the holding of the Trial Ex-
aminer who stated as follows.
... all that I hold, is that a union which calls a
strike and authorizes picketing must retain
control over the pickets in whatever manner it
deems necessary, in order to insure that they
do not act improperly. If a union is unwilling,
or unable, to take the necessary steps to con-
trol its pickets, it must then bear the responsi-
bility for their misconduct.
What the Board held in the above case is con-
trolling here.' Accordingly, I find that Respondent
Local Union 563 restrained and coerced em-
ployees, thereby violating Section 8(b)(1)(A) of
the Act, by the following acts and conduct, all of
which have been detailed above: (1) assaulting and
DeVries testified to the effect that he instructed the pickets there was to
be no violence However , " merely forbidding coercive conduct will not suf-
fice to -relieve of responsibility therefor " Drivers , Salesmen,
Warehousemen , etc , Local 695, IBT (Tony Pellitteri Trucking) 174 NLRB
753, New Power Wire and Electric Corp v N L R B, 340 F 2d 71 (C A 2)
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening employees ; ( 2) damaging vehicles
driven to work by employees ; ( 3) throwing rocks
and other objects at employees and their vehicles;
and (4 ) blocking ingress to the plant premises.
C. The Facts Pertaining to the Unlawful Secondary
Activity
At all times material herein Fluor Brothers Con-
struction Co. was engaged in the construction of a
raw water pumping station on Lake Winnebago, at
Waverly Beach , Menasha , Wisconsin . This facility
is being built to supply drinking water to the city of
Appleton , Wisconsin . Fluor 's employees on this
project consisted of three carpenters represented
by Respondent Local 630 and the Carpenters Dis-
trict Council , three laborers represented by a
laborers' union , and an operating engineer
represented by an operating engineers ' union. Also
on the job at the times material hereto were three
ironworker employees of the Hennes Trucking
Company represented by Respondent Ironworkers
Local 8 . Fluor engaged Hennes as a subcontractor
to install reinforcing steel bars in the foundation of
the project . The reinforcing steel bars were to be
furnished by Northern pursuant to a contractual ar-
rangement between Fluor and the Pipkorn Com-
pany.
1. The events of September 15
There is no substantial dispute as to what oc-
curred on the morning of September 15. About 8
a.m. on this date, a load of reinforcing steel bars
manufactured by Northern was delivered to the
Waverly Beach jobsite in a company truck driven
by Mr. Arntzen, the manager of Northern. The
truck, which was followed by picket Dixon Jacob-
son who carried a picket sign,10 first stopped at the
private driveway entrance leading into the jobsite
premises. Arntzen got out, spoke briefly with
Jacobson, and then proceeded into the premises on
the instructions of Robert Paulsen, the job superin-
tendent for Fluor. Paulsen told Jacobson that he
was on private property and Jacobson moved back.
The truck in the meantime parked near the excava-
tion for the pumping station (located in the center
of the property where the work had begun), and at
this point the crane operator began unloading the
`ruck. A few minutes later a second Northern truck
(this a semitrailer, as distinguished from Arntzen's
straight truck) also loaded with Northern reinforc-
ing steel arrived at the premises. This truck was
driven by Rodney Wussow, the shop foreman for
Northern, and was followed by a second picket,
Harold Kemp, who drove a 1961 brown Chevrolet
station wagon. Although the semitrailer remained
temporarily parked on the entrance driveway,
picket Kemp, who also carried a picket sign, got
out of the car and walked over to the excavation
where he stationed himself on the opposite side
from where Arntzen's truck was being unloaded.
Arntzen's truck was about three-quarters unloaded
when the crane operator observed the picketing.
He thereupon refused to unload any further and
told Paulsen that he would not work as long as the
pickets were on the job. Arntzen and Wussow
thereupon proceeded to unload the balance of the
truck by hand. When this was completed the truck
was driven off the premises and Wussow proceeded
to back his semitractor truck into an unloading
position alongside the excavation. The trailer then
was unhooked from the tractor and Wussow drove
away, leaving the loaded trailer on the jobsite."
Pickets Kemp and Jacobson thereupon began
picketing the trailer by walking around it with their
picket signs. This picketing continued until 5 p.m.,
and no further work was performed on the project
that day.
Wussow returned to the jobsite about 6.30 p.m.
that evening and proceeded to unload the trailer
with two part-time employees. Although Kemp and
another picket followed Wussow from the Northern
premises, they remained parked near the entrance
of the Waverly project for only about 5 minutes
and departed before the unloading was completed.
As of the time of the hearing herein there have
been no further deliveries to this job by Northern.
2. Further events of September 15
Three of Fluor's carpenter employees, Domenic
Gestaut, Adrian Petit, and Joseph Jansen, all mem-
bers of Respondent Carpenters Local 630, reported
at the Waverly project on the morning of Sep-
tember 15. These employees arrived at the jobsite
prior to the above-mentioned picketing and began
working in the excavation. It is undisputed that
Jerry Jahnke, the Carpenters business agent,12 came
down into the pit and spoke to them at this time.
According to the uncontroverted and substantially
corroborative testimony of Gestaut and Jansen,
Jahnke began by telling the employees that there
was a picket on the job. Although he followed this
with a statement that the employees could use their
own judgment about working, he thereupon stated,
.. we have a picket out there and good union
members honor the picket sign ." After a brief
discussion among themselves, the three carpenter
employees followed Jahnke out, of the excavation.
They performed no further work that day.
1" One side of the picket sign stated "Our only dispute is with Northern
Contractors Supply " the other side stating, "Employees of Northern Con-
tractors on strike, Teamsters Local 563 " All picket signs hereinafter
referred to bore this same legend
11 Paulsen testified, "I called Northern Contractors and told them either
to pull the truck off the property or send some men out to unload it It was
agreed that they would take care of it later on "
12 Respondents ' answer concedes the allegation in the complaint that
Jahnke is a business agent for Local Union No 630, United Brotherhood of
Carpenters & Joiners of America, AFL-CIO, and the Fox River Valley Dis-
trict Council of Carpenters
GENERAL DRIVERS & DAIRY EMPLOYEES LOC. UN. 563
3. The events of September 16
Pursuant to instructions from Business Agent
DeVries, picket Harold Kemp drove his brown
Chevrolet station wagon to the jobsite about 6:30
a.m. on September 16 and parked on the public
road not far from the entrance to the Waverly
Beach project." It is undisputed that he remained
in this area for the entire working day.
Gestaut came to the project about 7:30 a.m. for
the purpose of seeing "if anything was settled."
Gestaut testified that he observed two pickets out-
side the station wagon. One was carrying a picket
sign while another sign was propped up against the
car. Gestaut thereupon went to the job shack and
told Paulsen that he would not work because of the
picketing.
Joseph Jansen, one of the carpenters, also came
to the jobsite that morning. Arriving about 7:45
a.m., Jansen testified that he observed two cars on
the road near the project entrance and that two
pickets, both carrying picket signs , were walking
outside the vehicles. Jansen thereupon went into
the job shack. After conferring briefly with Paulsen,
Jansen telephoned Business Agent Jahnke, told him
that two pickets were on the job, and asked what he
should do. According to the credited and unrefuted
testimony of Jansen, Jahnke replied "as long as the
pickets are on the job, honor the signs."
Adner Seelow, an employee of subcontractor
Hennes and a member of Respondent Ironworkers
Local No. 8, came to the jobsite about 7:30 on Sep-
tember 16. Unaware of any picketing, since he had
not worked the previous day, Seelow reported to
the job shack where he encountered Fluor Superin-
tendent Paulsen. When advised by Paulsen that
there was a picket outside the jobsite, Seelow went
out to look for himself. Seelow testified that at this
point he observed a brown Chevrolet station wagon
and a man standing nearby and, in addition, that he
saw a picket sign so propped up within the vehicle
that it was visible through the rear window. Seelow
testified that he then returned to the job shack,
telephoned the Ironworkers business representa-
tive, Peter Succa, advised Succa of the picketing,
and asked if he should go to work. When Succa
replied that he could not say whether he should or
not, Seelow asked if the ironworkers would be sub-
ject to a fine if they worked. According to Seelow,
Succa told him "it was probably subject to a fine
depending on if it was a legal picket or not a legal
picket." Seelow testified that, in addition, "He
[Succa] told me that if Hennes had any other work
that we should probably go on another job and they
would try to get things straightened out that day
and see what took place." As a result of this con-
versation, Seelow did not work that day.14
Concerning the above-related events, there are
two matters which are in dispute. The first is a deni-
" This was conceded by Kemp, a Respondent witness
10 Seelow testified that following his conversation with Succa he spoke to
the other ironworker on the job Seelow said , " I told him what Pete [Suc-
1027
al by Harold Kemp that there was "any other
striker from Northern Contractors in his car or near
his car that day." Kemp conceded only that he was
parked near the jobsite that day and that four or
five picket signs were laying in the rear of the vehi-
cle between the back seat and the tail gate. Insofar
as Kemp's testimony may be taken to deny that
there was no picketing on September 16 or that
none of the picket signs were publicly displayed, I
do not credit it. Employees Gestaut, Jansen, and
Seelow were all members of their respective
Unions. Not only did they impress me as telling the
truth, but I can hardly believe that they would
fabricate testimony which they undoubtedly knew
was adverse to the interests of their own labor or-
ganizations. Accordingly, I credit their testimony as
set forth above.
Secondly, Succa's testimony differs from the
above-related testimony of Seelow. Succa testified
that he came to the Waverly jobsite-on September
15 after receiving a call from Seelow who said a
picket was on the job. Succa testified that when he
came to the job Seelow asked if he would be fined
if he went to work. Succa asserted, "I didn't answer
him." While not specifically denying that he had
any conversation with Seelow on September 16,
Succa denied having any conversation with Seelow
between September 15-17 during which he in ef-
fect told Seelow that he would be subject to a fine
if he worked on the project, depending whether the
picket line was legal or illegal. Succa did not im-
press me as a forthright witness. From my observa-
tion of the witnesses, I credit Seelow's testimony
concerning the conversation he had with Succa on
September 16, as hereinabove related.
4. The events of September 17
The events of September 17 were substantially
repetitive of those which occurred on September
16. Although Kemp conceded that he came to the
jobsite and parked his station wagon at the spot as
he had on the preceding day and that he remained
there until noon, he denied that any picketing took
place or that any picket signs were displayed. Upon
a consideration of the testimony given by Gestaut,
Jansen, and Seelow, I am persuaded and find that
sporadic personal picketing took place during the
morning of this date and that during the morning
the picket signs were again openly and publicly put
on display. Indeed, Paulsen arrived at the job at 7
a.m. and observed that no picket was present. He
promptly called Gestaut and Jansen and advised
them to return to work because there was no
picketing.15 However, picket Kemp appeared be-
fore Jansen and Gestaut arrived. The latter em-
ployees observed the picketing upon their arrival
and therefore did not go to work until notified that
the entire dispute was settled later that morning.16
ca) told me, that we shouldn't go to work and go on a different job
Credited testimony of Paulsen
" Testimony of Jansen and Gestaut
427-258 O-LT - 74 - 66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Likewise, employee Seelow arrived on the job that
morning and observed that the picket was still
there. Seelow credibly testified that he thereupon
telephoned Succa and asked, inter alia , if he would
be subject to a fine for working. Succa again told
Seelow that whether he would be subject to a fine
depended upon whether "it was a legal or illegal
picket.""
Conclusions as to the 8(b)(4)(i) and (ii)(B)
Violations
Insofar as relevant here, Section 8(b)(4)(i) and
(ii)(B) prohibits a union or its agents from inducing
or encouraging employees of a secondary employer
to refuse to handle goods or perform services and
from threatening, restraining, or coercing seconda-
ry employers where an object of such conduct is to
force or require secondary employers to cease
doing business with the primary or disputing em-
ployer. As a general rule, picketing activity by a
union is primary when it occurs at the situs of the
main dispute, which is usually the primary em-
ployer's own premises, and seeks no more than to
disrupt the normal operations of his business. But,
when picketing activity is extended beyond the situs
of the primary dispute, as to the premises of a
neutral employer, it is, with certain exceptions, or-
dinarily secondary. Respondents in effect argue
that there are factors present in this case which
render the picketing at the Waverly jobsite an ex-
ception to the general rule. In this connection,
Respondents particularly rely on the Board's deci-
sion in United Steelworkers of America, AFL-CIO
(Auburndale Freezer Corporation), 177 NLRB 791,
which they assert "is virtually on point with respect
to the question here."
In the Auburndale case, Cypress Garden Citrus
Products, the primary employer, stored its products
(citrus concentrates) at a cold storage warehouse
owned by the Auburndale Freezer Corporation. No
Auburndales were employed at the warehouse and
the conduct complained of involved picketing at
the Auburndale premises at times when no Cypress
employees were delivering concentrate. In holding
this picketing to be permissable under the Act, the
majority of the Board, with Members McCulloch
and Brown dissenting, stated the factors upon
which they relied and then set forth their rationale
and conclusions, all as follows:
In the present case, we note the following
facts which seem to us relevant to establish the
"presence of the primary" at the Auburndale
location: (1) Cypress first began storing its'
product at Auburndale in 1956 under a general
warehousing agreement; (2) Cypress and Au-
burndale executed a 5-year contract in January
1967, whereby the latter agreed to furnish to
the former space of 300,000 cases of concen-
trate; (3) during the picketing Cypress had
150,000 cases of concentrate stored a the Au-
burndale warehouse; (4) Cypress trucks
deliver concentrate to Auburndale in the regu-
lar course of business, and during the season,
March through July, do so continuously; (5)
Cypress drivers remain at Auburndale until
they are given a receipt for the concentrate;
and (6) the concentrate is shipped from the
Auburndale warehouse by common carriers in
accordance with instructions given by Cypress.
These facts indicate that the concentrate,
while stored at the Auburndale warehouse, is,
for all practical purposes, under the control of
Cypress, that the warehouse is the place where
common carriers receive Cypress goods for
delivery to Cypress' customers, that there is
substantial contact between Cypress, its em-
ployees, and the Auburndale warehouse, and
that the storage of the concentrate at the
warehouse, which practice has been continu-
ous since 1956, constitutes an integral part of
the Cypress production process. To the extent
that the Auburndale warehouse is a part of the
Cypress operation, we conclude that the
warehouse constitutes a common situs.
The factual situation which led the Board to find
that the Auburndale warehouse was a part of the
Cypress operation, thus constituting a common
situs, is clearly and substantially different from the
factual situation in the instant case. Without
elaborating the obvious differences, suffice it to say
that in my opinion the temporary parking of the
Northern trailer at the Waverly jobsite cannot be
equated with the binding and protracted warehouse
arrangement which Cypress had with Auburndale
for the storing of its products. I therefore reject
Respondents' apparent contention that the parked
trailer converted the Waverly jobsite into a so-
called "common situs."
It is well settled that in determining the objective
of alleged secondary picketing, the Board is entitled
to look at the totality of the union's conduct, and is
not bound by the union's signs or professed object
in picketing."Likewise, the place of picketing is to
be considered as one circumstance, among others,
in determining the object of the picketing.'9 Con-
sidering all of the circumstances of this case, I am
convinced and find that the picketing at the
Waverly project was for the proscribed objective of
enmeshing the employees of the neutral employers
who were working at this jobsite. Assuming arguen-
do that under the ambulatory or roving situs theory
" 1 have considered Succa's testimony relative to his talking with Seelow
on the morning of this date For the reasons previously stated, I credit
Seelow's testimony as stated above
'" N L R B v Local 25, International Brotherhood of Electrical Workers
(Emmett Electric Co ) 383 F 2d 634 (C A 2)
'" International Brotherhood of Electrical Workers, Local Union
861 (Plauche Electric), 135 NLRB 250
GENERAL DRIVERS & DAIRY EMPLOYEES LOC. UN. 563 1029
of picketing the Respondent could lawfully follow
Northern's trucks to the Waverly project and
remain there while they were unloaded,20 the
picketing by Respondent here extended far beyond
the period when Northern arguably may have been
engaged in normal business at this jobsite. Respon-
dent has offered no satisfactory or acceptable ex-
planation as to why the picketing at the project
continued for almost 2 days after the reinforcing
steel bars had been unloaded and the trailer
removed from the premises.21 In view of such con-
tinued picketing during this lengthy period when
neither Northern's equipment or employees were
on the jobsite, I can but conclude that the only
possible objective of the picketing was to induce
.employees of the neutral employers (Fluor Bros.,
and Hennes) to cease doing business with
Northern.22 Accordingly, I find that the picketing
was for an unlawful objective and that Respondent
Local Union 563, by engaging in such conduct, vio-
lated Section 8(b)(4)(i) and (ii)(B) of the Act.
I further find that on September 15, Respondent
Carpenter's Business Agent Jahnke appealed to
Fluor's employees to cease work (by informing
them that they were the only ones working and by
admonishing them that "good union members
honor the picket sign") in violation of Section
8(b)(4)(i)(B) of the Act.23 I find likewise violative
of this section of the Act the conduct of Peter Suc-
ca, business agent of Respondent Ironworkers
Local No. 8, in advising an employee of Hennes
Trucking on September 16 and 17, under the cir-
cumstances previously noted, that he probably
would be subject to a fine for working behind the
picketing, depending on whether "it was a legal
picket or not a legal picket." This clearly con-
stituted illegal inducement.24
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondents set forth in section
III, above, occurring in connection with the opera-
tions of the Employer described in section I, above,
have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several'
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
The Remedy
Having found that Respondents have committed
certain unfair labor practices, I shall recommend
that they be ordered to cease and desist therefrom
and take certain affirmative action which I find will
effectuate the policies of the Act.
Because of similar flagrant and repetitive unfair
labor practices engaged in by Respondent Team-
sters Local Union 563, 1 shall recommend the is-
suance of a broad Order against this Respondent.25
CONCLUSIONS OF LAW
1. By restraining and coercing employees of
Northern Contractors Supply, Inc., in the exercise
of rights guaranteed in Section 7 of the Act,
Respondent General Drivers and Dairy Employees
Local Union 563 has engaged in and is engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A) of the Act.
2. By inducing or encouraging employees and
persons employed by Fluor Brothers Construction
Co. and the John Hennes Trucking Company, Inc.,
to refuse in the course of their employment to per-
form services for their employers, and by threaten-
ing, coercing, and restraining the said employers,
with an object in either case of forcing each to
cease doing business with Northern Contractors
Supply, Inc., the Respondents have engaged in un-
fair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case, I
20 Cf Local 379, Building Material & Excavators (Catalano Bros ), 175
NLRB 459
Zi New Power Wire & Electric Corp, 144 NLRB 1089, enfd 340 F 2d 71
(C A 2), relied upon by Respondents, involves an utterly different factual
situation And unlike the Catalano case, supra, cited by Respondents, the
principal work situs of the primary here is not away from its terminal
22 Although Respondent denies that it picketed the jobsite on September
16 and 17 (which is contrary to my finding herein), picket Harold Kemp,
when asked why he returned to the jobsite on these dates, testified "Well, I
didn't know but what they might haul some more steel out there because
they had taken some off Monday and some Monday night, and I was out
there just in case they did come out with some " I cannot regard this as a
valid reason for the picketing on these days, for it is obvious that Respon-
dent could have ascertained any further such deliveries by the simple
procedure of following the trucks from the primary situs In fact this is just
what happened when the pickets followed Northern's trucks to the project
in the morning and again on the evening of September 15 Significantly, on
the latter occasion (when the trailer was being unloaded by Wussow and
two Northern employees), the pickets remained at the jobsite for only
about 5 minutes, departing before the unloading was finished It is
noteworthy that no employees of secondary employers were on the project
at this time
is Carpenters Local No 235, (Howard E Edminsion) 174 NLRB 996,
I B E W , Loc al501 (Samuel Langer) v N L R B, 341 U S 694, 701, 702
24 General Truck Drivers and Helpers, Local 467, (J B Electric ), 171
NLRB No 90, New Mexico Building Branch, Association General Contrac-
tors of America, 120 NLRB 1658
2" The Board recently issued a fourth decision in which it found this
Respondent to have violated the secondary boycott provisions of the Act
General Drivers and Dairy Employees, Local Union 563 and its agent Jeffrey
Curtin, et al (Fox Valley Construction Materials Suppliers Association,
Inc ), 179 NLRB 822 See fn I in said decision wherein the Board referred
to recent earlier decisions as follows
We agree with the Trial Examiner that a broad order is justified in this
case because of the Teamsters and Operating Engineers earlier viola-
tions of the secondary boycott provisions of the Act, as found by the
Board in General Drivers and Dairy Employees Local Union 563, et al
(Fox Valley Material Suppliers Association, Inc ), 176 NLRB No 51
Additionally, we note that broad orders have also issued against these
same unions in General Teamsters, Warehouse and Dairy Employees,
Local No 126, et al , 175 NLRB No 86 and in General Drivers and
Dairy Employees, Local Union 563 & Fox Valley Construction Materi-
als Suppliers Association, Inc, 179 NLRB No 109
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend that the Respondent Unions, their of-
ficers, agents , and representatives, and Jerry
Jahnke and Peter Succa, shall:26
1. Cease and desist from:
1(a) Inducing or encouraging any individual em-
ployed by Fluor Brothers Construction Co., John
Hennes Trucking Company, Inc., or any other em-
ployer or person, to refuse, in the course of their
employment, to perform any services, and from
threatening, coercing, or restraining the said em-
ployers, or any other employer or person, with an
object in either case of forcing or requiring all of
the above, or any other person or employer to
cease doing business directly or indirectly with
Northern Contractors Supply, Inc.
(b) Restraining or coercing employees of
Northern Contractors Supply, Inc., in the exercise
of their right to refrain from joining or supporting
any strike called by Respondent General Drivers
and Dairy Employees, Local Union 563, by harm-
ing or threatening to harm employees, or by damag-
ing or threatening to damage vehicles and property.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at their offices, meeting halls, and all
other places where notices to members are
customarily posted, copies of the attached notices
marked "Appendix."27 Copies of said notices, on
forms provided by the Regional Director for Region
30, after being duly signed by an official represen-
tative, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by
Respondents 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. Upon request of the
Regional Director, the Respondents shall supply
him with a sufficient number of signed copies for
posting by Northern Contractors Supply, Inc., Fluor
Brothers Construction Co. and John Hennes
Trucking Company, Inc., at all places where notices,
to their respective employees are customarily
posted, if the employers desire to do so.
(b) Notify the Regional Director for Region 30,
in writing , within 20 days from the date of the
receipt of this Decision, what steps the Respon-
dents have taken to comply herewith.2"
t" Subparagraph (b), below, is not applicable to Respondent Carpenters
and Respondent Ironworkers , or their officers, agents , and representatives
11 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
Z" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondents
have taken to comply herewith "
APPENDIX A
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any in-
dividual employed by Fluor Brothers Construc-
tion Co., John Hennes Trucking Company,
Inc., or any other employer, to refuse in the
course of their employment to perform any
services, nor will we threaten, coerce, or
restrain the said employers, or any other em-
ployer, where, in either case, an object is to
force or require the employers named above,
or any other employer or person, to cease
doing business directly or indirectly with
Northern Contractors Supply, Inc., or with any
other employer or person.
LOCAL UNION 630,
UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO,
AND Fox RIVER VALLEY
DISTRICT COUNCIL OF
CARPENTERS
(Labor Organization)
Dated By
(Representative ) (Title)
Dated By
(Jerry Jahnke) ( Business Representative)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-272-8600, Extension 3861.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees
of Northern Contractors Supply, Inc., in the
GENERAL DRIVERS & DAIRY
exercise of their right not to join or support
any strike by us against that Company, by
harming or threatening to harm them, or by
damaging or threatening to damage vehicles or
property.
WE WILL NOT induce or encourage any in-
dividual employed by Fluor Brothers Construc-
tion Co., John Hennes Trucking Company,
Inc., or any other employer or person, to
refuse in the course of their employment to
perform any' services, nor will we threaten,
coerce, or restrain the said employers, or any
other employer or person, where, in either
case, an object is to force or require the em-
ployers named above, or any other employer
or person, to cease doing business directly or
indirectly with Northern Contractors Supply,
Inc., or with any other employer or person.
GENERAL DRIVERS AND
DAIRY EMPLOYEES LOCAL
UNION 563
(Labor Organization)
Dated By
(Representative ) (Title)
Dated By
(Peter Succa ) (Business Representative)
EMPLOYEES LOC. UN. 563
APPENDIX C
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
1031
An Agency of the United States Government
WE WILL NOT induce or encourage any in-
dividual employed by Fluor Brothers Construc-
tion Co., John Hennes Trucking- Company,
Inc., or any other employer, to refuse in the
course of their employment to perform any
services, nor will we threaten, coerce, or
restrain the said employers, or any other em-
ployer, where, in either case, an object is to
force or require the employers named above,
or any other employer or person, to cease
doing business directly or indirectly with
Northern Contractors Supply, Inc., or with any
other employer or person.
BRIDGE , STRUCTURAL,
AND ORNAMENTAL
IRONWORKERS, LOCAL
UNION No. 8, AFL-CIO
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53202, Telephone 414-272-8600, Extension 3861.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, Commerce Building , Second Floor,
744 North Fourth Street , Milwaukee , Wisconsin
53202 , Telephone 414-272-8600 , Extension 3861.