General Drivers, Local 554

National Labor Relations Board - Board Decisions

Sep 30, 1980

253 N.L.R.B. 1 (N.L.R.B. 1980)

GENERAL DRIVERS, LOCAL 554
General Drivers & Helpers Union, Local No. 554,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Help-
ers of America and Prairie Ford Truck Sales.
Case 17-CC-817
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS
JENKINS AND PENELI.O
On July 23, 1980, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in answer to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, General Driv-
ers & Helpers Union, Local No. 554, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
Omaha, Nebraska, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I Respondent has ecepted to certain credibility findings made hby the
Administrative l.aw Judge. It is the Board's established polic> rnot to
overrule an administrati e law judges, resolutions with respect to credl-
bility unless the clear preponderance of all of the relevant evidence c on-
vinces us that the resolutions arc incorrect. Staundard Dr Hll /IPrduct,
Inc., 91 NLRH 544 (1950). enfd 188 F.2d 362 (3d Cir 1951). We hac
carefully examined the record and find no basis for reering his findings
We have modified the Administratvlse La, Judge's Iotlee to conforn
to his recommended Order
253 NLRB No. 6
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE Wl. l NOT picket Prairie Ford Truck
Sales in connection with its labor dispute with
Sullivan Transfer Co. at any time when Sulli-
van Transfer Co. is not engaged in its primary
business at the Prairie Ford Truck Sales facili-
ty.
WE- WI.I. NOT induce or encourage any indi-
vidual employed by Prairie Ford Truck Sales,
or any other person engaged in commerce or
in an industry affecting commerce, to engage
in a strike or refusal in the course of his em-
ployment to use, manufacture, process, trans-
port, or otherwise handle or work on any
goods, articles, materials, or commodities, or
to perform any services; or threaten, coerce,
or restrain the said persons, or any other
person engaged in commerce or in an industry
affecting commerce, where in either case an
object thereof is forcing or requiring Prairie
Ford Truck Sales to cease doing business with
Sullivan Transfer Co. and/or forcing and re-
quiring other persons engaged in commerce or
in industries affecting commerce to cease
doing business with Sullivan Transfer Co.
GENERAI DRIVERS & HELPERS
UNION, LOCA NO. 554, AFFIIIATED
WITH INTERNATIONAl. BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF
AMERICA
DECISION
S ATMENTI 01F THE CASE
JAMES L. ROSi, Administrative Law Judge: This
matter was heard before me on April 24, 1980. at
Omaha, Nebraska, on the General Counsel's complaint
which alleged that on November 15 and November 23,
1979,.' the Respondent engaged in picketing at the prem-
ises of the Charging Party in violation of Section
8(b)(4)(i) and (ii)(B) of the National Labor Relations Act,
as amended, 29 U.S.C. § 151 et seq.
All dates are in 1979 unless otherwise indicated
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
While admitting the picketing as alleged, the Respond-
ent contends that it did not violate the Act because: (a)
the Charging Party had allied itself with the employer
with which the Respondent has a primary labor dispute:
(b) that at all times the picketing was primary and con-
formed to the Board's standards for common situs picket-
ing; and (c) in any event the picketing on the two dates
in question was de minimis.
The Respondent further moved to dismiss the com-
plaint on grounds that William T. Six, the president of
the Charging Party, did not respond to a subpoena ad tes-
tificandum appropriately served on him. The evidence
establishes that in fact Six was personally served with a
subpoena ad testificandum on April 17, 1980, and was at
the same time served with a subpoena duces ecurn and
also was presented with two checks for witness' fees.
Six, however, did not appear. At the time of the hearing
of this matter, according to his counsel, he was in Las
Vegas, Nevada. Nor did Six advise counsel that he had
been served a subpoena ad testificandum. Six made no
motion to quash the subpena or to postpone hearing,
though it is noted that the complaint issued on December
27, 1979, setting the hearing date for April 24, 1980. In
short, there was no reason advanced by counsel for the
Charging Party why Six failed to respond to the subpena
and appear as required. Certainly the Respondent had a
right to have the subpena honored and to examine under
oath the president of the Charging Party, particularly in-
asmuch as one of the substantive issues in this matter
concerns the alleged ally status of the Charging Party
with the primary employer. At best, it must be conclud-
ed that Six was remiss in his duty to the process, and,
were this matter simply between Respondent and the
Charging Party, dismissal would seem appropriate. How-
ever, I deny the Respondent's motion to dismiss because
there are matters of public policy being litigated here
and the public interest would not be served by dismissing
the case because a principal of one of the parties did not
respond to a subpena.
While the Respondent does have a right to have the
subpena honored and to examine Six, I do not believe
that the Respondent has in any way been denied due
process of law. The Respondent could have sought sub-
pena enforcement, but did not. The Respondent could
have sought to introduce secondary evidence, and I will
make appropriate adverse inferences based upon Six's
failure to appear. The documents subpoenaed by the Re-
spondent were in fact produced. Other officers of the
Charging Party were present and, in fact, agents of the
Charging Party did testify in this matter. Thus, I believe
the Respondent has been given every reasonable oppor-
tunity to litigate fully the issues it raised in defense.
Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Charging Party, Prairie Ford Truck Sales, is a
Nebraska corporation engaged in the retail sale and serv-
ice of trucks at its facility in Omaha, Nebraska. In the
course and conduct of its business within the State of
Nebraska, it annually purchases goods and services
valued in excess of $50,000, directly from sources located
outside the State of Nebraska, and its annual gross
volume of business at the facility exceeds 5(X),000.
Sullivan Transfer Co. is engaged in the intrastate trans-
portation of goods and operates terminals in Omaha, Lin-
coln, and Grand Island, Nebraska.
Prairie Ford is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
Prairie Ford and Sullivan are, and at all times material
herein have been, persons engaged in commerce or in an
industry affecting commerce within the meaning of Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act.
II. II11 1.ABOR ORGANIZA'IION INVO[ VILD
The Respondent, General Drivers & Helpers Union,
Local No. 554, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (herein the Union), is admitted to be, and I find
is, a labor organization within the meaning of Section
2(5) of the Act.
III. IHtIl A.tU(;Il)UNAIR l ABOR PRAC I CIS
For some years, the Union has represented Sullivan's
drivers and warehouse employees at its Omaha, Lincoln,
and Grand Island terminals. They have had a series of
collective-bargaining agreements, the most recent of
which expired on March 31. Unable to reach a new
agreement, on September 25 the nion commenced an
economic strike and began picketing Sullivan at the three
terminals as well as ambulatory picketing.
This matter concerns picketing at the Prairie Ford fa-
cility for 20 to 30 minutes on the mornings of November
15 and 23. While the parties disagree on precisely when
the Respondent's pickets arrived and how long they
stayed, there is no real dispute that in fact picketing did
occur at Prairie Ford at a time when no Sullivan em-
ployees were present or engaged in any business function
of Sullivan at that facility. At the time of the picketing,
however, there were Sullivan trucks at Prairie Ford
which were there, according to the credible evidence,
for the purpose of being repaired and serviced.
In connection with its Omaha operation, for years Sul-
livan has relied principally on Prairie Ford to service
and repair its vehicles, though two other dealerships are
occasionally used. In emergencies, Prairie Ford employ-
ees will make service calls at the Sullivan facility; how-
ever, all of the maintenance and repair work is per-
formed at the Prairie Ford facility.
Sullivan has no physical capacity to perform even the
most minor maintenance and at Omaha (or Grand Island)
has never had a mechanic or maintenance employee.
Until his retirement about 2 years ago, Sullivan did
employ one mechanic at the Lincoln facility.
On November 14, a Sullivan truck was taken to Prairie
Ford for repairs which were completed by the morning
of November 15. In their cruising, a crew of ambulatory
pickets saw the Sullivan truck on the Prairie Ford lot,
radioed to see if they should picket. and were told to do
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(ENIRAI. I)RIVERS, I()CAI 554
so. When picketing began, there were no Sullih an em-
ployees present at Prairie Ford, nor had any been there
since the truck had been delivered Within a short time.
a Sullivan employee did arrive at the Prairie Ford site
and drove the truck off. The picketing thenl ceased.
Similarly, two Sullivan trucks were on the Prairie
Ford premises on November 23 at the time of the picket-
ing, hut there were no Sullivan employees present. Tlhe
picketing ceased that day when the pickets were arrested
and taken to the police station. (They were released
without being charged or booked.)
There is no evidence of any business relationship be-
tw een Prairie Ford and Sullivan other than that de-
scribed; namely, Sullivan is a regular customer of Prairie
Ford, and that Prairie Ford does work on Sulli' an's
equipment which Sullivan does not have the capacit) to
perform for itself. There is no contractual relationship
between the two. The work which Prairie Ford does for
Sullivan is on an ud hoc, though regular. basis
There is no indication that there were any Sullivan ve-
hicles on the Prairie Ford premises at any time material
hereto, and particularly November 15 or 23, other than
those which were there to be repaired. Thus, while the
Respondent argues that Sullivan was using the Prairie
Ford facility as an ancillary terminal, there is no ci-
dence to support such a conclusion.
Analysis and Concluding Findings
1. he ally defense
The Respondent principally contends that Prairie Ford
and Sullivan are allies in that Prairie Ford did work
which, but for the strike, employees of Sulli an would
do. The record, however, is clear that, for at least 2
years. Sullivan has employed no one capable of perform-
ing even minor maintenanlce work much less major re-
pairs and, in any eveent. Sullivan never has employed a
mechanic at the Omaha facility. While repair ad mainte-
nance of vehicles is certainly a necessary part of its busi-
ness operation, such is riot a function ever performed by
Sullivan employees. Thus, it cannot reasonabl be con-
cluded that, by doing repair and mainltenance work as it
had done in the past, Prairie Ford engaged in struck
work, or by continuing to do business it became Sulli-
van's ally in the labor dispute. Prairie Ford did not per-
form struck work and was, at all times, a neutral employ-
er. W stern Stute Regional Council No. 3 International
Woodworkers of 4inmerica. .1AFL-CIO, t al. (Priest Logging,
Inc.), 137 NLRB 352 (1962); cf. Graphic A.rr Internation-
al Union. AFL-CIO et al. (S & M1 Rotogravure S.ervic,
Inc.), 225 NLRB 1253 (1976).
2, Situs of the labor dispute
The Board has long held that ambulatory picketing at
a neutral employer's place of business is presumptively
lawful if it can be found that such was in fact a situs of
the primary labor dispute. Sailors' Union oJ' the Pacific.
AFL (Moore Dry Dock Company), 92 NLRB 547 (195(0).
In Moore Dry Dock, the Board set standards which must
be met in order to find that the site of the picketing is
common both to the neutral and the primary employers
including, (b) at the time of the picketing the primarN
employer is engaged in its normal business at the situs.
Thus, a principal criterion in establishing permissible
common situs picketing is that the employees of the pri-
mary employer be present, or at best bhe only absent tem-
porarily to perform work in furtherance of the primary
employer's business. International Brotherhood of Electri-
cau/ W4orker, I. ocal [:ttllo 861. and Orneth Lard, itr agent
Plauche I:lectric, Inc.), 135 NLRB3 25() ( 1962)
Such was not the case here on November 15 and 23.
Sullivan was not engaged in its normal business activity
at Prairie Ford. It did not have any employees at the fa-
cility during the course of the picketing nor ould it
have been reasonable to expect any Sulli an employees
to have been present at Prairie ord to do any work in
furtherance of the Sullivan business.
Sullivan is a comnmon carrier. While important to this
is the nlaintellll ce and repair (of its vehicles, a all times
material here. its employees never engaged in that activi-
t .
Accordingly, I conclude that, at the time of the picket-
ing on November 15 and 23, the Prairie Ford facility
was not a work situs common to both the neutral (Prai-
rie Ford) alnd primarN (Sulliivan) employers. in short, the
picketling could not have been directed to Sullivan em-
ployees but must have had a secondary object. Accord-
ingly, by picketing Prairie Ford on November 15 and 23.
the Union violated Section 8(h)(4)(i) and (ii)(B) of the
Act and I so conclude. l re'ttlr, Convtrrluetion, General
Drlvers, Warehoulermen and Illlpcrx 'nion,. Locul 287, tc.
(Buck Butane-Propane Servic., Inc.), 186 NI.RB 187
(1 970)).
3. The dc n r inils argumient
The Respondent contends that no remedial order
should issue because the picketing occurred only for a
short time on, two occasions. Howexer, sinlce the Re-
spondent takes a po,,ition thal it had the right to picket
Prairie Ford (and presumahly ally other facility where
Sullivan trucks were being repaired) the fact that the
picketing was minimal does not obviate the propriety of
issuing a remedial order. Absent this litigation, or an
order remedying the Respondent's unfair labor practice.
it is reasonable to conclude that such picketing in the
future would occur.
The picketing in Buck' Burune-Propane. upra. found
unlawful under circumstances similar to those here (the
neutral employer fixed flat tires for the primary from
time to time), lasted just 10 minutes on one occasion.
Hence, a remedial order was found not warranted. The
situation here is distinguishable because the picketing oc-
curred oi two occasions, lasted for at least 20 to 30 minl-
utes both times, and ceased only when the Sullivan truck
was driven off (on November 15) and when the pickets
were arrested (on November 23). The picketing here was
not isolated. Accordingly, I reject the Respondent's ar-
gument that the complaint should be dismissed on
grounds that the picketing lasted for a very short time on
onily 2 days.
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I)ELCISIONS OF NATIONAL LABOR RELATIONS BO()ARD
IV.I HI: Il:FICIS OF1: Trt UNIAIR I XBOR PRACII(IS
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the businesses of Prairie Ford and Sulli-
van, are unfair labor practices which tend to lead to
labor disputes burdening and obstructing commerce
within the meaning of Section 2(6) and (7) of the Act.
V. lFt RMEI)Y
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it
cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, the entire record in this matter, and pursuant to the
provisions of Section 10(c) of the Act, I hereby issue the
following recommended:
OKRDER 2
The Respondent, General Drivers & Helpers Union,
Local No. 554, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Omaha, Nebraska, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) icketing Prairie Ford Truck Sales in conlnection
with its labor dispute with Sullivan Transfer Co. at any
time when Sullivan Transfer Co. is not engaged in its
primary business at the Prairie Ford Truck Sales facility.
(b) In any like or related manner inducing or encour-
aging any individual employed by Prairie Ford Truck
Ill te relilt 11i eC.xCCltinnl s are filed as prosidedl h S 112 4 f tlhe
Rules and Regulatiots of the Natioilal l.ahor Relaitons Board, tilhe find
illgs. cnclusions, adnd rco nllienided ()rder herein shall, as provided ill
Sec 1)2 48X i Ihe Rules aid Regulations. bh aldopted by the ilolardl uilld
become its findings, cclusionls and Order, and all olbljeclions therlto
shall he deemed wa;ivedl fr ll IputpoCses
Sales, or any other person engaged in commerce or in an
industry affecting commerce, to engage in a strike or a
refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to per-
form any services; or threatening, coercing, or restrain-
ing the said persons, or any other persons engaged in
commerce or in an industry affecting commerce, where
in either case an object thereof is forcing or requiring
Prairie Ford Truck Sales to cease doing business with
Sullivan Transfer Co.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." I Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by an authorized rep-
resentative of the Respondent, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Sign and mail sufficient copies of the notice to the
said Regional Director for posting by Prairie Ford
Truck Sales and Sullivan Transfer Co., such employers
being willing, at all places where notices to their cm-
ployees are customarily posted.
(c) Notify the said Regional Director, in writing,
within 20 days from the date of' this Order, what steps
the Respondent has taken to comply herewith.
:' In the %relt Ihal this Order is enlorced by ,I Judgment if a nitled
States Court oir Appeals, the wsords i the nIlce reading "Posled by
Order iof the National I.ahor Rlations Board" hall read "Posled Pursu-
ant tll a Judgnnlmnt the lUnited Slates Court ('I Appeals nircing all
()rder oil the Naltiolnal I thor Relalioiis lardl
4