General Teamsters Local No. 126

National Labor Relations Board - Board Decisions

Nov 13, 1972

200 N.L.R.B. 253 (N.L.R.B. 1972)

GENERAL TEAMSTERS LOCAL NO. 126 253
General Teamster, Warehouse and Dairy Employees
Union Local No. 126, affiliated with the Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America; Local
#139, International Union of Operating Engi-
neers, AFL-CIO; Local # 782, United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO; Building and Construction Trades
Council of Fond Du Lac County ; Local #1086,
International Hod Carriers, Building and Common
Laborers Union of America , AFL-CIO; Local
#206, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada,
AFL-CIO and Ready Mixed Concrete, Inc. Case
30-CC-144
November 13, 1972
DECISION AND ORDER
On June 22, 1971, Trial Examiner Alvin Lieberman
issued the attached Decision in this proceeding.
Thereafter, the Charging Party filed exceptions and a
supporting brief, and the Respondents filed a joint
brief in opposition to the Charging Party's excep-
tions. On January 3, 1972, oral argument, in which
the Respondents and the Charging Party participat-
ed, was held before the Board in Washington, D.C.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and finds merit in the Charging Party's
exceptions. Accordingly, the Board affirms the Trial
Examiner's rulings, findings, conclusions, and rec-
ommendations only to the extent consistent with the
following:
The complaint alleged that Respondents violated
Section 8(b)(4)(i) and (ii)(B) of the Act. The Trial
Examiner found several incidents of violation of
Section 8(b)(4)(i)(B) by Respondents Teamsters,
Carpenters Union, Council, and Laborers, to which
no exceptions have been filed, but otherwise recom-
mended dismissal of the complaint. The Charging
Party, Ready Mixed Concrete, Inc. (RMC), has filed
exceptions to the dismissal.
As set forth in detail in the Trial Examiner's
Decision, Respondent Teamsters embarked on a
campaign to put RMC out of business because of
what the Teamsters believed was a breach of
confidence by Leo Geis, owner of RMC, which is
1
Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547
2 The Trial Examiner also found that Teamsters Business Representative
Rickmeier's threat to Tiede's superintendent to put up a picket line unless
Tiede discontinued its purchases of concrete from RMC did not violate
Section 8(b)(4)(iiXB) of the Act because there was no evidence "that a
picket line was ever established or that the inducement offered by
Rickmeier was effective ...." A threat to an employer to picket is itself
said to have resulted in a heart attack suffered by the
Teamsters secretary-treasurer, William Wetzel, Sr.
As a first step in the campaign to achieve this
objective, the Teamsters published and distributed
leaflets to various business firms and others, includ-
ing construction contractors, construction employ-
ees, employees of industrial and commercial estab-
lishments, officials and members of various labor
organizations, and people in general , setting forth
what the Teamsters alleged was Geis' perfidious
conduct and urging recipients not to patronize RMC.
As the next step, the Teamsters began picketing
construction sites at which RMC was supplying
concrete. The pickets carried signs referring to Geis'
conduct toward Wetzel, Sr. At the Oakfield School
project, where Wm. Tiede & Sons was engaged as the
general contractor, a business representative of the
Teamsters, Eugene Rickmeier, approached Tiede's
superintendent and another individual employed
there, informed them that "scab concrete" was being
used, suggested that concrete be obtained from a
source other than RMC, and threatened to put up a
picket line unless this was done. At RMC's own
premises no picketing was conducted.
The Trial Examiner concluded that, inasmuch as
the picketing of the construction sites where RMC
was delivering concrete conformed with the Moore
Dry Dock' criteria, the picketing was lawful, even
though its conceded object was to put RMC out of
business.2 In this regard, we are persuaded that the
Trial Examiner had a faulty view of the controlling
principles and thus reached the wrong result.
Section 8(b)(4) of the Act makes it an unfair labor
practice for a union
(i) to engage in, or to induce or encourage any
individual ... 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 com-
modities or to perform any services; or (ii) to
threaten, coerce, or restrain any person ...
where in either case an object thereof is:
(B) forcing or requiring any person to
cease using, selling, handling, transporting,
or otherwise dealing in the ,products of any
other producer, processor, or manufacturer,
or to cease doing business with any other
coercive, whether or not the picketing is subsequently instituted , and if the
threat is intended to achieve an object prohibited by Section 8(b)(4)(B), as
in this case , it is violative of Section 8(b)(4)(n)(B). We therefore find,
contrary to the Trial Examiner, that Rickmeier's threat to Tiede violated
Section 8(b)(4)(n)(B) of the Act. International Union of Operating Engineers,
Local Union No I2, AFL-CIO (Associated Independent Owner-Operators,
Inc.), 180 NLRB 293, 296.
200 NLRB No. 41
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
person . . . : Provided That nothing con-
tained in this clause (B) shall be construed to
make unlawful, where not otherwise unlaw-
ful, any ... primary picketing.
These provisions reflect "the dual congressional
objective of preserving the right of labor organiza-
tions to bring pressure to bear on offending employ-
ers in primary labor disputes and of shielding
unoffending employers and others from pressures in
controversies not their own." N.L.R.B. v. Denver
Building and Construction Trades Council, 341 U.S.
675, 692. Thus, a union is permitted to picket a
primary employer with whom it has a labor dispute
but runs afoul of Section 8(b)(4) if it pickets or
threatens to picket a neutral employer with a
proscribed object3 of enmeshing the neutral employ-
er in a controversy not its own.
Ascertaining a union's motivation becomes diffi-
cult in cases involving an "ambulatory" or "com-
mon" situs where the primary and secondary
employer are engaged in operations at the same
location .4 In assessing union picketing activities at
such locations the Board is confronted by the
difficult problem that unrestricted union activity,
which is designed to turn away all who approach the
situs , would be inconsistent with the neutral employ-
ers' intended immunity. Conversely, depriving a
union of all opportunity to picket the primary
employer at the ambulatory or common situs might
render its ability to bring any pressure on the
primary illusory when the primary employer's only
place of business in the geographic area is the
common or ambulatory situs. In order to accommo-
date these conflicting interests , the Board has
evolved criteria in the Moore Dry Dock case designed
to help resolve the question of whether a union has
the proscribed motive of enmeshing neutral employ-
3 It is unnecessary to find that the sole object of picketing is unlawful, an
unlawful object is enough . N.L.R.B v. Denver Building and Construction
Trades Council, 341 U S. 675, 688-689, N LRB. v. Milk Drivers & Dairy
Employees Local Union No. 584, IBT [Old Dutch Farms, Inc.], 341 F.2d 29,
32 (C.A . 2), cert. denied 382 U.S. 816; N LR B. v. Milk Wagon Drivers'
Union, Local 753 [Pure Milk Association], 335 F.2d 326, 329 (C.A. 7), New
York Mailers' Union No 6 [New York Herald Tribune, Inc ] v N.LR B., 316
F.2d 371, 372 (C.A.D C.).
4 The line between legitimate primary, and unlawful secondary, activity
is relatively easy to draw where primary and secondary employers have
separate work sites ; union activity occurring at the primary employer's own
premises , and seeking no more than the disruption of his own normal
operations , is considered primary, whereas activity extending beyond the
premises of the primary employer to those of another employer, which is
designed to disrupt the operations of the latter employer, is generally
considered secondary . Compare, International Rice Milling Co. v. N.L.R.B.,
341 U .S. 665, 672, with N L R.B. v. United Brotherhood of Carpenters and
Joiners of America, District Council of Kansas City [Wadsworth Budding
Company], 184 F 2d 60 (C.A. 10), cert denied 341 U.S. 947. And see,
generally , Retail Fruit & Vegetable Clerks Union, Local 1017 [Crystal Palace
Market] v. N.LR B, 249 F.2d 591, 597-600 (C.A 9).
5 Although Moore Dry Dock involved picketing at the common situs of a
secondary employer , its rule has been extended by the Board to picketing at
ers when it pickets locations where both the primary
and secondary employer are present .5
The criteria set forth in Moore Dry Dock are to
assure that common situs picketing, to be lawful, is
conducted in a manner that clearly indicates that the
appeal of the picketing is directed only to the
employees of the primary employer. The Board and
the courts uniformly have held that picketing at a
common situs violates Section 8(b)(4)(i) and (ii)(B) of
the Act if any of the requirements of Moore Dry
Dock are disregarded, or if the picketing is in any
respect conducted in a manner which demonstrates
that the intent and purpose of the picketing is to
appeal to the employees of secondary employers.s
N.L.R.B. v. Northern California District Council of
Hod Carriers, 389 F.2d 721 (C.A. 9); Retail Fruit
Clerks v. N. L. R. B., supra; N. L. R. B. v. Truck Drivers
& Helpers Local Union No. 728 [National Trucking
Company], 228 F.2d 791 (C.A. 5); N.L.R.B. v. Service
Trade Chauffeurs, Salesmen & Helpers Local 145
[Howland Dry Goods], 191 F.2d 65 (C.A. 2);
N.L.R.B. v. Local Union No. 55 and Carpenters'
District Council of Denver, supra; N.L.R.B. v. Denver
Building and Construction Trades Council, 219 F.2d
870 (C.A. 10); Piezonki d/b/a Stone Steel Service v.
N.L.R.B., 219 F.2d 879 (C.A. 4); Richfield Oil Corp.,
95 NLRB 1191; Crystal Palace Market, supra.
The Moore Dry Dock tests are not the single guide
for determining the legality of "common situs"
picketing. They are, rather, "evidentiary in nature,
and they are to be employed in the absence of more
direct evidence of the intent and purposes of the
labor organization." N.L.R.B. v. International Hod
Carriers, Building and Common Laborers' Union of
America, Local No. 1140, AFL-CIO, 285 F.2d 397,
401 (C.A. 8), cert. denied 366 U.S. 903. Thus, mere
compliance with the four requirements of the Moore
Dry Dock case does not immunize a union's picketing
the situs of a primary employer where a secondary or neutral employer is
engaged. American Newspaper Guild ( Youngstown Arc Engraving Co.), 153
NLRB 744, Retail Fruit if Vegetable Clerks Union, Local 1017 (Crystal
Palace Market), 116 NLRB 856, enfd . 249 F.2d 591 (C.A. 9), Local Union
No. 55, and Carpenters' District Council ofDenver and Vicinity (Professional
and Business Men's Life Insurance Company), 108 NLRB 363, enfd. 218 F.2d
226 (C.A 10).
6 Picketing constitutes "inducement or encouragement" of individuals
within the meaning of Section 8(b)(4)(i)(B) and "coercion or restraint" of
persons within the meaning of Section 8(b)(4XiiXB). N.L.R.B. v. Internation-
al Hod Carriers, Local 1140 [Economy Farms], 285 F.2d 397 (C.A 8), cert.
denied 366 U.S. 903, N.L.R B v. Plumbers Union of Nassau County, Local
457 [Bomat Plumbing & Heating], 299 F.2d 497 (C.A. 2). It is likewise well
settled that a threat of picketing or a work stoppage violates Section
8(b)(4)(u)(B). NL R B v Highway Truck Drivers and Helpers, Local No 107
[Riss & Co.], 300 F.2d 317 (CA 3); Local 810, International Brotherhood of
Teamsters (Fein Can Corp.), 131 NLRB 59, enfd. 229 F.2d 636 (C.A. 2) The
Board and the courts have also uniformly held that successful inducement
or encouragement of workmen to cease performing services necessarily
restrains or coerces their employer. N.L.R.B. v. Local 3, International
Brotherhood of Electrical Workers [New York Telephone Co.], 325 F.2d 561
(C.A. 2).
GENERAL TEAMSTERS LOCAL NO. 126 255
and other conduct, for a union may, by its other
conduct, reveal that its objective is secondary.? Thus,
if the picketing is directed at the primary employer it
will be regarded as primary and lawful, but if a
purposeful effort is made to direct it at the neutrals
that work at a common site the activity will be
viewed as secondary and unlawful .8 The Board and
the courts have uniformly held that direct appeals to
secondary employees or other regular common situs
tenants have in effect negated the conditions re-
quired in Moore Dry Dock to justify picketing, and
have exceeded the limits of permissible primary
activity and constituted violations of the secondary
boycott provisions of the Act. Crystal Palace Market,
supra' Gonzales Chemical Industries, Inc., 128 NLRB
1352; Highway Truckdrivers and Helpers, Local No.
107 (Riss & Company, Inc.), 130 NLRB 943, enfd. 300
F.2d 317 (C.A. 3). As was stated in this regard by the
United States Court of Appeals for the Ninth Circuit
in N.L.R.B. v. Northern California District Council of
Hod Carriers, 389 F.2d 721, 725:
Respondent next argues that the picketing was
primary and not secondary in nature in that it
complied with the requirements for primary
picketing established by the Board in Moore Dry
Dock Co., 92 NLRB 547 (1950). It would appear
that its reliance on this doctrine is misplaced.
Moore Dry Dock does not establish a formula
whereby picketing with a secondary object can be
done lawfully.' Rather it simply establishes [an]
evidentiary aid for the Board to determine the
object of picketing where the other evidence is
equivocal. The Board is not bound by the
inference of lawfulness from compliance with the
Moore Dry Dock standards. Superior Derrick
Corp. v. N.L.RB., 273 F.2d 891, 895-897 (5th Cir.
1960), cert. denied, Seafarers International Union
of North America, Atlantic and Gulf Desto, etc. v.
N L.R.B., 364 U.S. 816 . . . (1960); Retail Fruit
and Vegetable Clerks Union v. N.LRB., 249 F.2d
5911, 596-599 (9th Cir. 1957); N.L.R.B. v. General
Drivers, Warehousemen and Helpers, Local 968,
225 F.2d 205, 209-210 (5th Cir. 1955), cert.
denied, 350 U.S. 914... (1955).
7 "The umon's object may be inferred from its act." New York Mailers'
Union v. N.L.R B, 316, F.2d 371, 372 (C.A D.C.). "In the absence of
admission by the Union of an illegal intent, the nature of acts performed
shows the intent ."" Seafarers International Union [Salt Dome Production Co.]
v. N L R B., 265 F.2d 585, 591 (C.A D.C.), quoted with approval in Local
761, Electrical Workers [General Electric Company] v. N L.R B., 366 U.S.
667, 674.
8 It'is well settled that picketing is a "signal" to the initiated regardless of
the message it conveys. As the courts have recognized , the "normal purpose
of a picket line is to persuade employees not to cross it." N.LR B. v. Dallas
General Drivers, Local No. 745 [Associated Wholesale Grocery of Dallas], 264
F 2d 642, 648 (C.A. 5), cert denied 361 U.S. 814 Picketing is essentially a
signal to organized economic action backed by group discipline. See
N.LRB. v. Denver Building and Construction Trades Council [Gould &
Preisner], 341 U.S. 675, 690. "The objectives of any picketing include a
In Local 761, Electrical Workers v. N.L.R.B., supra,
the Supreme Court recognized the propriety of
applying the Moore Dry Dock criteria and of looking
to other evidence "the means to which a union
resorts in promoting its cause" in order to determine
in common situs cases whether the impact of the
picketing on the neutral employees who work there
was merely an incident of activity directed at the
primary employer or whether a deliberate attempt
was made to induce "those employees to engage in
concerted conduct against their employer in order to
force him to refuse to deal with the struck employer."
366 U.S. at 673-674.
With the above principles in mind, we proceed to a
consideration of all the evidence bearing on the
Teamsters object in carrying on its picketing activi-
ties. Upon such consideration, we are persuaded that
the picketing at the construction projects here
involved was not conducted in a manner uninhibited
by "restraint consistent with the right of neutral
employers to remain uninvolved in the dispute."
Retail Fruit Clerks Union v. N.L.R.B., supra at 599.
We note, first, that the Teamsters admits that the
object of its picketing and other conduct was to put
RMC out of business. Realistically appraised, such
object could only be accomplished by causing
RMC's customers to cease doing business with it. In
view of Respondent's admitted object, it could
hardly be said that the "cease-doing business"
purpose was merely incidental to what in other
circumstances might have been a legitimate primary
picket line; the prohibited object was, rather, the
sole, all consuming aim of the picketing.
Further, it appears to us that when the Teamsters
found out that its handbilling did not accomplish the
result of curtailing RMC's operations, it turned to
picketing as the means for attaining its objective. It
chose picketing because it was "more dramatic"; it
got people to stop; and it was more effective than
mere handbilling. It changed its methods even
though that meant a substantially greater expense to
it. However, instead of picketing at the premises of
RMC,9 where the appeal of its picket,line would have
been directed solely at RMC's employees several
desire to influence others from withholding from their employer their
services or trade." Local 761, International Union of Electrical; Radio &
Machine Workers [General Electric] v. N.L.R.B., 366 U.S. 667y 673 "The
loyalties and responses exacted by picket lines are unlike those flowing from
appeals by written word." Hughes v. Superior Court of California, 339 U.S.
460, 465. Picketing is commonly employed "to conscript neutrals having no
relation to the dispute ." Carpenters & Joiners Union of America, Local No
213 v Ritters Cafe, 315 U.S. 722, 728. "The reluctance of workers to cross a
picket hne is notorious ." Printing Specialties and Paper Converters Union
Local 388 v Le Baron, 171 F.2d 331, 334 (C.A 9). "A picket line may induce
action of one kind or another, quite irrespective of the nature of the ideas
which are being disseminated " Bakery & Pastry Drivers & Helpers Local 802
v. Wohl, 315 U.S 769,776-777.
9 Chairman Miller would doubt the legitimacy even of such picketing,
where the sole object thereof is a "cease-doing business " object. Normally,
(Continued)
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times during the course of the day, the Teamsters set
up picket lines at construction sites where RMC was
delivering concrete and where construction contrac-
tors' employees were also engaged at work.'° It thus
appears quite obvious that Teamsters directed the
appeal of its picket lines toward the employees of the
contractors rather than toward the RMC employees,
who could have been reached at the plant of RMC,
where no picketing took place. Moreover, we note
that some of such picketing took place on streets
adjacent to areas some distance removed from
entrances to the construction sites through which
RMC's concrete was delivered and on abutting
streets.11 If the picketing were directed solely at
RMC's employees, we fail to understand the need to
picket along the full frontage of the construction sites
and on abutting public streets instead of restricting
such picketing to the points of ingress and egress of
RMC's truckdrivers. On the contrary, it appears to us
that Teamsters deliberately attempted to enmesh
neutrals in its dispute with RMC by appealing to
such neutrals' employees. This we find particularly
true in the case of picketing at the Gross Terminal.
As previously noted, in addition to picketing,
Teamsters engaged in oral inducement of an employ-
ee of a neutral contractor on at least one construc-
tion project and in threats of picketing. We are
convinced that the Teamsters' picketing was not
engaged in so as to have as little impact on neutral
employers and employees as possible, but, instead,
was directed at them. The Teamsters made no effort
to insulate employers with whom it had no dispute
and to insure that its activities did not result in work
stoppage or disruption of business. The facts devel-
oped in the case, viewed in the light of settled
principles, show that the Teamsters picketing and
other conduct violated Section 8(b)(4)(i) and (ii)(B)
of the Act. Common situs picketing is never
privileged when it is directed, as it was here, at
neutral employees and their employers. N.L.R.B. v.
Carpenters District Council of Kansas City [Kaaz
Woodwork Company], 383 F.2d 89 (C.A. 8); N.L.R.B.
v. Hod Carriers, supra; Teamsters, Chauffeurs &
Helpers Union, Local 279 (Wilson Teaming Company),
140 NLRB 164; International Brotherhood of Electri-
cal Workers, Local Union No. 11 (L. G. Electric
Contractors, Inc.), 154 NLRB 766; Carpenters District
Council of Kansas City (J. E. Dunn Construction
Company), 158 NLRB 269; Local 25, International
the incidental secondary effects of primary picketing are regarded as
inevitable incidental effects of protected primary activity. But, in the
Chairman's view, this reasoning loses its force when the sole announced
purpose of the activity is an object proscribed by the statute
10 In International Brotherhood of Electrical Workers, Local 861 (Plauche
Electric, Inc.), 135 NLRB 250, 254, the Board stated that it would consider
the place of picketing " as one circumstance , among others, in determining
an object of the picketing."
Brotherhood of Electrical Workers (Building Trades
Employers Association), 169 NLRB 856; United
Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry (A & B Plumbing,
Inc.), 171 NLRB 498; Local 134, International
Brotherhood of Electrical Workers (Polly Electric Co.),
175 NLRB 507; Drivers, Warehouse & Dairy Employ-
ees, Local No. 75 (Seymour Transfer, Inc.), 176 NLRB
530; Iron Workers Local Union 167 (Tayloe Glass
Co.), 180 NLRB 201.
Picketing by other Respondent Unions
John Sharkey was a business representative of
Respondent Plumbers. He was also a member of the
board of directors of Workshops, Inc., a charitable
corporation. When Workshops proposed erecting a
new building, Sharkey became a member of its
building committee. RMC received a contract to
deliver part of the concrete for the new building.
Sharkey resented the award of this contract to RMC,
a nonunion firm, and threatened to picket the
project. On June 29, 1970, he went to the project,
found Teamsters Business Representative Rickmeier
picketing, took a picket sign from Rickmeier's car,
and began to picket on one of the streets abutting the
project while RMC's trucks were making deliveries.
After about 30 minutes, he stopped picketing. The
Plumbers had not authorized the picketing; in fact,
its executive board reprimanded him for having done
so. However, the Plumbers took no steps openly to
disavow Sharkey's picketing conduct. The Trial
Examiner found that the Plumbers was not responsi-
ble for Sharkey's conduct because Sharkey was
picketing the Workshops project not in his capacity
as a Plumbers agent, but as an individual "giving
vent to his outrage at having been, he thought, lied to
and made a fool of by Workshops." We do not agree
with this exculpation of Respondent Plumbers.
Sharkey was a known business representative of the
Plumbers. Anyone seeing him picket would naturally
assume that he was acting in his capacity as such
agent . Although the Plumbers privately reprimanded
him for his picketing activity, it took no steps
publicly to repudiate his conduct and thus to undo
the effect of his otherwise unlawful picketing. Under
these circumstances, we find that the Respondent
Plumbers is responsible for his conduct and that it
11 United Brick and Clay Workers of America v. Deena Art ware, Inc, 198
F.2d 637 (C.A 6), cert. denied 344 U.S. 897; Amarillo General Drivers, Local
Union No 577 (Crowe-Gulde Cement Company), 122 NLRB 1275, enfd. 273
F.2d 519 (C.A.D.C .); Dallas General Drivers, Local 745 (Dallas County
Construction Employer 's Association, Inc.), 124 NLRB 696, enfd. as modified
281 F.2d 593, and as further modified on denial of rehearing 281 F.2d at 596
(C A. 5, 1960), cert. denied 365 U.S. 826; Union de Trabajadores (Gonzalez
Chemical Industries, Inc), 128 NLRB 1352.
GENERAL TEAMSTERS LOCAL NO. 126
thereby violated Section 8(b)(4)(i) and (ii)(B) of the
Act.12
Warren Tupper was a business representative of
Respondent Operating Engineers. On November 18,
1970, he and Teamsters Business Representative
Rickmeier were inspecting projects at which mem-
bers of their respective unions were working. Upon
their arrival at the Fond Du Lac Mental Health
Center construction project they found RMC trucks
delivering concrete. Soon thereafter, Rickmeier
began picketing the project. Rickmeier asked Tupper
to join him in the picketing. Tupper did so, and both
picketed as long as RMC's trucks remained at the
site. When Geis asked Tupper the reason for his
picketing, Tupper replied "birds of a feather stick
together." The Trial Examiner found that Tupper's
picketing was accidental and was not the result of a
joint venture of the Operating Engineers and the
Teamsters to further the campaign of the Teamsters.
However, whether or not the Operating Engineers
was engaged in a joint venture with the Teamsters,
Tupper's picketing was engaged in as a representa-
tive of the Operating Engineers and was as unlawful
as that of Rickmeier since it had the same object.
Respondent Operating Engineers, as Tupper's princi-
pal, was therefore responsible for his conduct.
Accordingly, we find that by Business Representative
Tupper's picketing of the Fond Du Lac Mental
Health Center project Respondent Operating Engi-
neers violated Section 8(b)(4)(i) and (ii)(B) of the
Act.13
THE REMEDY
Having found that Respondents Teamsters, Car-
penters, Council, Laborers, Plumbers, and Operating
Engineers have engaged in unfair labor practices
within the meaning of Section 8(b)(4)(i) and (ii)(B) of
the Act, we shall order them to cease and desist
therefrom and to take such affirmative action as will
effectuate the purposes of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 2-13 and substitute
therefor the following:
2. RMC, Workshops, Rosenthal, Gross, Smith,
Tiede, Hennes, and Baumhardt are persons engaged
in an industry affecting commerce within the
meaning of Section 8(b)(4) of the Act.
3. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
12 Milk Wagon Drivers, Local 753 v. Meadowmoor Dairies, 312 U.S. 552,
556; United Brotherhood of Carpenters & Joiners of America, Local Union No
2067 (Batterman Construction, Inc), 166 NLRB 532; International Brother-
hood of Teamsters, Local Union No. 377 (All-American Stamp and Premium
Corporation), 159 NLRB 1313; International Longshoremen's and Warehouse-
men's Union, Local 8 (General Ore, Inc.), 124 NLRB 626.
257
4. By inducing and encouraging an individual
employed by Tiede to engage in a strike or a refusal
in the course of his employment to perform any
services, an object thereof being to force or require
Tiede to cease using, handling, transporting, or
otherwise dealing in products supplied by RMC and
to cease doing business with RMC, Respondent
Teamsters Union has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(b)(4)(i)(B) of the Act.
5. By inducing and encouraging an individual
employed by Smith to engage in a strike or refusal in
the course of his employment to perform any
services, an object thereof being to force or require
Smith to cease using, handling, transporting, or
otherwise dealing in products supplied by RMC and
to cease doing business with RMC, Respondents
Carpenters Union and Council have engaged, and
are engaging, in unfair labor practices within the
meaning of Section 8(b)(4)(i)(B) of the Act.
6. By inducing and encouraging an individual
employed by Smith to engage in a strike or a refusal
in the course of his employment to perform any
services, an object thereof being to force or require
Smith to cease using, handling, transporting, or
otherwise dealing in products supplied by RMC and
to cease doing business with RMC, Respondent
Laborers Union has engaged, and is engaging, in
unfair labor practices within the meaning of Section
8(b)(4)(i)(B) of the Act.
7. Respondent Teamsters Union did not threaten,
coerce, or restrain Hutter within the meaning of
Section 8(b)(4) of the Act.
8. Respondent Teamsters violated Section
8(b)(4)(i) and (ii)(B) of the Act by its picketing of the
various construction sites at which RMC was making
deliveries of concrete and by its threat to picket the
Oakfield School project unless Tiede obtained its
concrete from a source other than RMC.
9. Respondent Plumbers violated Section
8(b)(4)(i) and (ii)(B) of the Act by Business Repre-
sentative Sharkey's threats of picketing and his
picketing of the Workshops construction site.
10. Respondent Operating Engineers violated
Section 8(b)(4)(i) and (ii)(B) of the Act by Business
Representative Tupper's picketing of the Fond Du
Lac Mental Health Center site.
11. Respondents Carpenters, Council, and Labor-
ers did not threaten, coerce, or restrain Smith within
the meaning of Section 8(b)(4) of the Act.
12. Respondent Laborers did not engage in unfair
13 See fn . 12, supra. The Trial Examiner concluded that Respondents
have not engaged in a joint venture in furtherance of a campaign by
Teamsters to drive RMC out of business. Since we have found that each
Respondent has independently engaged in conduct proscribed by Section
8(b)(4)(B) of the Act, we need not, and do not , pass upon the joint venture
theory of the General Counsel's complaint.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practices by reason of the activities of Harold
LaShay in connection with the erection of the
Workshops' new building.
13. The unfair labor practices engaged in by the
Respondents Teamsters, Carpenters, Council, Labor-
ers, Plumbers, and Operating Engineers set forth in
the above Conclusions of Law affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section
10(c) of the Act, we hereby issue the following:
ORDER
1. Respondent General Teamster, Warehouse and
Dairy Employees Union Local No. 126, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual em-
ployed by Workshops, Inc.; John Hennes Trucking
Company; Baumhardt Sand and Gravel; Rosenthal
Construction Co., Inc.; Gross Construction Co., Inc.;
Charles D. Smith and Son, Inc.; and Wm. Tiede &
Sons or any other person engaged in commerce or in
an industry affecting commerce, by means of
picketing, orders, directions, instructions, requests, or
appeals, or by permitting any such to remain in
existence or effect, to engage in a strike or a refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services, where an object thereof is to
force or require the said persons, or any other person,
to cease using, selling, handling, transporting, or
otherwise dealing in the products of, or to cease
doing business with, Ready Mixed Concrete, Inc.
(b) In any manner threatening, coercing, or
restraining Workshops, Inc.; John Hennes Trucking
Company; Baumhardt Sand and Gravel; Rosenthal
Construction Company, Inc.; Gross Construction
Co., Inc.; Charles D. Smith and Son, Inc.; and Wm.
Tiede & Sons, or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require the said
persons, or any other person, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of, or to cease doing business with, Ready
Mixed Concrete, Inc.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) -Post at its offices and meeting halls copies of
the attached notice marked "Appendix A." 14 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by its
authorized representative, shall be posted by Re-
spondent Teamsters immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered, by
any other material.
(b) Deliver to the Regional Director for Region 30
signed copies of said notice in sufficient number for
posting by Workshops, Inc.; John Hennes Trucking
Company; Baumhardt Sand and Gravel; Rosenthal
Construction Company, Inc.; Gross Construction
Co., Inc.; Charles D. Smith and Son, Inc.; and Wm.
Tiede & Sons, they being willing, at all locations
where notices to their employees are customarily
posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent Teamsters has taken to
comply herewith.
II. Respondent Local #782, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, its
officers, agents, and representatives, shall:
1. Cease and desist, by means of orders, direc-
tions, instructions, requests, or appeals, or by
permitting any such to remain in existence or effect,
from inducing or encouraging any individual em-
ployed by Charles D. Smith and Son, Inc., or any
other person engaged in commerce or in an industry
affecting commerce, to engage in a strike or a refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services, where an object thereof is to
force or require Charles D. Smith and Son, Inc., or
any other person, to cease using, handling, transport-
ing, or otherwise dealing in the products of, or to
cease doing business with, Ready Mixed Concrete,
Inc.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix B." 15 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by its
authorized representative, shall be posted by Re-
spondent Carpenters immediately upon receipt there-
14 In the event that this Order is enforced by a Judgment of a United pursuant to a Judgment of the United States Court of Appeals enforcing an
States Court of Appeals, the words in the notice reading "Posted by Order Order of the National Labor Relations Board "
of the National Labor Relations Board" shall be changed to read "Posted 15 See fn. 14, supra
GENERAL TEAMSTERS LOCAL NO. 126
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Deliver to the Regional Director for Region 30
signed copies of said notice in sufficient number for
posting by Charles D. Smith and Son, Inc., it being
willing, at all locations where notices to its employees
are customarily posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent Carpenters has taken to
comply herewith.
III. Respondent Building and Construction
Trades Council of Fond Du Lac County, its officers,
agents, and representatives, shall:
1. Cease and desist, by means of orders, direc-
tions, instructions, requests, or appeals, or by
permitting any such to remain in existence or effect,
from induci. g or encouraging any individual em-
ployed by Charles D. Smith and Son, Inc., or any
other person engaged in commerce or in an industry
affecting commerce, to engage in a strike or a refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services, where an object thereof is to
force or require Charles D. Smith and Son, Inc., or
any other person, to cease using, handling, transport-
ing, or otherwise dealing in the products of, or to
cease doing business with, Ready Mixed Concrete,
Inc.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix C." 16 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by its
authorized representative, shall be posted by Re-
spondent Council immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Deliver to the Regional Director for Region 30
signed copies of said notice in sufficient number for
posting by Charles D. Smith and Son, Inc., it being
willing, at all locations where notices to its employees
are customarily posted.
259
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent Council has taken to comply
herewith.
IV. Respondent Local # 1086, International Hod
Carriers, Building and Common Laborers Union of
America, AFL-CIO, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist, by means of orders, direc-
tions, instructions, requests, or appeals, or by
permitting any such to remain in existence or effect,
from inducing or encouraging any individual em-
ployed by Charles D. Smith and Son, Inc., or any
other person engaged in commerce or in an industry
affecting commerce, to engage in a strike or a refusal
in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to
perform any services, where an object thereof is to
force or require Charles D. Smith and Son, Inc., or
any other person, to cease using, handling, transport-
ing, or otherwise dealing in the products of or to
cease doing business with, Ready Mixed Concrete,
Inc.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix D." 17 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by its
authorized representative, shall be posted by Re-
spondent Laborers immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered by
any other material.
(b) Deliver to the Regional Director for Region 30
signed copies of said notice in sufficient numbers for
posting by Charles D. Smith and Son, Inc., it being
willing, at all locations where notices to its employees
are customarily posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent Laborers has taken to
comply herewith.
V. Respondent Local #206, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL-CIO, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
16 See fn. 14, supra.
17 See fn. 14, supra.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Engaging in, or inducing or encouraging any
individual employed by Workshops , Inc., Rosenthal
Construction Company , Inc., or any other person
engaged in commerce or in an industry affecting
commerce , to engage in a strike or a refusal in the
course of his employment to use , manufacture,
process, transport , or otherwise handle or work on
any goods , articles, materials , or commodities or to
perform any services , where an object thereof is to
force or require Workshops , Inc., Rosenthal Con-
struction Company, Inc., or any other person, to
cease using , handling , transporting, or otherwise
dealing in the products of, or to cease doing business
with , Ready Mixed Concrete, Inc.
(b) Threatening, coercing , or restraining Work-
shops, Inc., Rosenthal Construction Company, Inc.,
or any other person engaged in commerce or in an
industry affecting commerce , where an object thereof
is to force or require Workshops, Inc., Rosenthal
Construction Company, Inc., or any other person, to
cease using, selling , handling , transporting , or other-
wise dealing in the products of, or to cease doing
business with , Ready Mixed Concrete, Inc.
2. Take the following affirmative action which, it
is found , will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix
E." 18 Copies of said notice , on forms provided by the
Regional Director for Region 30, after being duly
signed by its authorized representative , shall be
posted by Respondent Plumbers immediately upon
receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to members are
customarily posted . Reasonable steps shall be taken
by it to insure that said notices are not altered,
defaced , or covered by any other material.
(b) Deliver to the Regional Director for Region 30
signed copies of said notice in sufficient number for
posting by Workshops , Inc., and Rosenthal Con-
struction Company, Inc., it being willing, at all
locations where notices to its employees are custom-
arily posted.
(c) Notify the Regional Director for Region 30, in
writing , within 20 days from the date of this Order,
what steps Respondent Plumbers has taken to
comply herewith.
VI. Respondent Local # 139, International Un-
ion of Operating Engineers , AFL-CIO, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in or inducing or encouraging any
individual employed by Charles D. Smith and Son,
Inc., or any other person engaged in commerce or in
an industry affecting commerce, to engage in a strike
or a refusal in the course of his employment to use,
manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or
commodities or to perform any services, where an
object thereof is to force or require Charles D. Smith
and Son, Inc., or any other person, to cease using,
handling, transporting, or otherwise dealing in the
products of, or to cease doing business with, Ready
Mixed Concrete, Inc.
(b) Threatening, coercing, or restraining Charles D.
Smith and Son, Inc., or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require Charles
D. Smith and Son, Inc., or any other person, to cease
using, selling, handling, transporting, or otherwise
dealing in the products of, or to cease doing business
with, Ready Mixed Concrete, Inc.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix F." 19 Copies
of said notice, on forms provided by the Regional
Director for Region 30, after being duly signed by its
authorized representative, shall be posted by Re-
spondent Operating Engineers immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by it to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Deliver to the Regional Director for Region 30
signed copies of said notice in sufficient numbers for
posting by Charles D. Smith and Son, Inc., it being
willing, at all locations where notices to its employees
are customarily posted.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent Operating Engineers has
taken to comply herewith.
IT IS FURTHER ORDERED that in all other respects
the complaint be, and it hereby is, dismissed.
MEMBERS FANNING AND JENKINS, dissenting in part:
With one modification, we would affirm the Trial
Examiner's Decision and issue an appropriate order
to remedy the violation found by the Trial Examiner.
We wish to make it clear at the outset that we do
not condone, in the circumstances of this case, the
decision and attempt of Respondent Teamsters to
picket Charging Party Ready Mixed Concrete with
an objective of driving it out of business. Our
18 See In . 14, supra.
19 See In . 14, supra.
GENERAL TEAMSTERS LOCAL NO. 126 261
disapproval of such conduct, however, does not
persuade us that we should join our colleagues in
their decision. We are convinced their decision is a
serious distortion of the law as to what constitutes
unlawful secondary activity within the meaning of
Section 8(b)(4)(i)(ii)(B) of the Act. We therefore
dissent in part from our colleagues' decision.
Our colleagues state that the law regarding com-
mon sites picketing permits only such picketing as
"is directed only to the employees of the primary
employer" and that such picketing is unlawful if it is
"in any respect conducted in a manner which
demonstrates that the intent and purpose of the
picketing is to appeal to the employees of secondary
employers." Although our colleagues cite what is
numerically an impressive list of case citations for
these propositions, they neglect to apply relevant
principles of law set forth in two of the recent
Supreme Court decisions in this area. This omission
has, we believe, caused them to make only half the
required analysis in this case.
In the General Electric20 and Carrier21 cases, the
Supreme Court plainly indicated that it is no longer
sufficient, if it ever was, to determine with respect to
ambulatory or common situs picketing whether the
picketing was addressed to employees other than the
primary employees. It is necessary to determine the
nature of the appeals, if any, to such other employ-
ees, as well as the relationship of the work tasks
performed by such employees, to those performed by
the primary employees. Thus, in General Electric, the
Court, taking care to distinguish between legitimate
"primary activity" and banned "secondary activity"
instructed:
Almost all picketing, even at the situs of the
primary employer and surely at that of the
secondary, hopes to achieve the forbidden objec-
tive, whatever other motives there may be and
however small the chances of success." But
picketing which induces secondary employees to
respect a picket line is not the equivalent of picketing
which has an object of inducing those employees to
engage in concerted conduct against their employer
in order to force him to refuse to deal with the struck
employer. [Emphasis supplied.]22
The italicized sentence states the issue which the
Board must decide in this case, namely did Respon-
dent Teamsters picket Ready Mixed trucks for the
object of inducing employees of Ready Mixed's
customers to take action against their employers to
force them to cease dealing with Ready Mixed, or
did Respondent Teamsters seek merely to induce
such employees to respect the picket line thrown up
around Ready Mixed's cement trucks as deliveries
were being made to Ready Mixed's customers.
The answer to such question cannot be found in an
analysis which simply determines that the picketing
union was not interested in appealing to Ready
Mixed's employees. For the Supreme Court in the
Carrier case expressly rejected the view of the Court
of Appeals for the Second Circuit "that picketing at
the site of a strike could be directed at secondary
employees only where incidental to appeals to
primary employees." The Court stated:
It seems clear that the rejection of the Board's
position in General Electric [that picketing with an
object of enmeshing employees of neutral em-
ployers in a dispute with a primary employer is
per se unlawful] leaves no room for the even
narrower approach of the Court of Appeals in this
case, which is that the picketing at the site of a
strike could be directed at secondary employees
only where incidental to appeals to primary
employees. Under this test, no picketing at gates
used only by employees of delivery men would be
permitted, a result expressly disapproved by the
Court in General Electric: "On the other hand, if a
separate gate were devised for regular plant
deliveries, the barring of picketing at that location
would make a clear invasion on traditional
primary activity of appealing to neutral employ-
ees whose tasks aid the employer's everyday
operations." 366 U.S., at 680-681.
... We think General Electric's construction of
the proviso to § 8(b)(4) (B) is sound and we will
not disturb it. The primary strike, which is
protected by the proviso, is aimed at applying
economic pressure by halting the day-to-day
operations of the struck employer. But Congress
not only preserved the right to strike; it also saved
"primary picketing" from the secondary ban.
Picketing has traditionally been a major weapon
to implement the goals of a strike and has
characteristically been aimed at all those ap-
proaching the situs whose mission is selling,
delivering or otherwise contributing to the opera-
tions which the strike is endeavoring to halt. In
light of this traditional goal of primary pressures
we think Congress intended to preserve the right
to picket during a strike a gate reserved for
employees of neutral delivery men furnishing
day-to-day service essential to the plant's regular
operations.23 [Citations of legislative history
omitted.]
It is clear that Ready Mixed was in the business of
preparing, selling, and delivering to customers at
20 Local 761, International Union of Electrical, Radio & Machme Workers, 376 U.S. 492.
AFL-CIO [General Electric Company] v. N.L.R.B, 366 U.S. 668. 22 366 U.S. at 673-674.
21 United Steelworkers of America AFL-CIO [Carrier Corp.] v. N I.R.B., 23 376 U.S. 498-499
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construction sites ready mixed concrete. It can not be
disputed that the receipt and unloading of this
concrete by employees of Ready Mixed' s customers
at the site of delivery is a "task aid[ing Ready
Mixed's] every day operations." Consequently, there
can be no doubt that the employees of Ready
Mixed's customers fall within the class of employees
to whom the Respondent Union could legitimately
make primary appeals in support of its primary labor
dispute with Ready Mixed. Of course, it is necessary
to determine whether such appeals as were made
were limited to inducements to respect the picket line
or whether they went beyond such limited induce-
ments and sought to induce such employees to strike
their own employer because it was doing business
with Ready Mixed.
The Board has long utilized the so-called Moore
Dry Dock tests to aid it in determining whether
picketing and attendant picket line appeals are
primary in nature. These standards are applied as the
Supreme Court noted approvingly in General Electri-
cal24 irrespective of whether the common situs is
owned by the primary employer or by a neutral
employer, though the Court warned against a too
mechanistic application of those standards "so that a
violation of one of the standards [is] taken to be
presumptive of illegal activity." 25
The Trial Examiner carefully evaluated the picket-
ing at issue in this case against the Moore Dry Dock
standards,26 and found with respect to Respondent
Teamsters picketing that it conformed to those
standards. Our colleagues do not seriously dispute
the correctness of his findings in this respect, though
they do question why Respondent Teamsters did not
limit its picketing solely to the entrances of the
projects where Ready Mixed was delivering concrete,
but instead picketed along borders of the sites. But
their questioning goes not to a concern with whether
the picketing was limited to places reasonably close
to the sites of the dispute, as it clearly was.27 Rather
they are concerned with the conclusion that a failure
to so limit the picketing demonstrates that Respon-
dent was appealing to employees of the neutral
employers, not to Ready Mixed's employees. One
can agree, with their factual conclusion but not with
their legal conclusion, for as indicated above the
Supreme Court has rejected an approach which
focuses on that narrow question as being insufficient
to establish a violation of Section 8(b)(4)(B).
As we are satisfied that Respondent Teamsters
clearly attempted to conform its picketing of Ready
Mixed's trucks to the Moore Dry Dock tests, and was
successful in so doing, and as we are convinced,
moreover, that those tests aptly serve to distinguish
picketing which merely serves to induce employees to
respect the picket line from picketing which is aimed
at inducing employees of neutral employers them-
selves to engage in a strike against their own
employer, we find that Respondent Teamsters did
not, by engaging in picketing in conformity with
those standards, violate Section 8(b)(4)(B).
Notwithstanding the foregoing, we are in agree-
ment with the Trial Examiner that Respondent
Teamsters' appeal to employees of a neutral employ-
er (Wm. Tiede & Sons) at the Oakland School project
to refrain from working if the site were picketed was
an unlawful inducement in violation of Section
8(b)(4)(i)(B). The inducement was not clearly limited
to a request to honor the promised picket line only so
long as it was lawfully maintained. We would further
find that this inducement, also made as it was to
Tiede's superintendent, was a threat to maintain a
picket line for the purpose indicated in the unlawful
inducement to the employees present. Accordingly,
we would also find that Respondent Teamsters
violated Section 8(b)(4)(ii)(B) by such threat. In all
other respects, we agree with the Trial Examiner's
findings, conclusions, and recommendations. Ac-
cordingly, we concur in the remedial orders directed
by our colleagues in this proceeding to the extent
that they conform to the recommended Order of the
Trial Examiner, and to the extent that they require
Respondent Teamsters to cease and desist from
violating Section 8(b)(4)(ii)(B) and to post notices
which include the appropriate reference to this
violation.
24 366 U.S. at 678-679.
25 366 U.S. at 677
26 Namely that (a) the picketing be strictly limited to times when the
situs of the dispute is located on the secondary employer's premises, (b) at
the time of the picketing , the primary employer is engaged in its normal
business at the sites, (c) the picketing is limited to places reasonably close to
the location of the situs of the dispute, and (d) that the picketing clearly
discloses that the dispute is with the primary employer. See Moore Dry Dock
Company, 92 NLRB 547.
27 The Respondent was refused permission to enter the construction sites
so as to be able to picket Ready Mixed's trucks at the point of delivery
They thus were forced to picket along the borders of the sites at places
where their picketing would be visible to employees accepting delivery.
APPENDIX A
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of General Teamsters, Warehouse
and Dairy Employees Union Local No. 126, affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
To employees of Workshops, Inc.; John Hennes
Trucking Company; Baumhardt Sand and Gravel;
Wm. Tiede & Sons; Rosenthal Construction Co.,
Inc.; Gross Construction Co., Inc.; and Charles D.
Smith and Son, Inc.
GENERAL TEAMSTERS LOCAL NO. 126
After a trial in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend
to carry out the Order of the Board and abide by
the following:
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting
for us, whatever his title may be, engage in, or
induce or encourage any individual employed by
Workshops, Inc.; John Hennes Trucking Compa-
ny; Baumhardt Sand and Gravel; Wm. Tiede &
Sons; Rosenthal Construction Co., Inc.; Gross
Construction Co., Inc.; or Charles D. Smith and
Son, Inc., 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
employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform
any services, where an object thereof is to force or
require Workshops, Inc.; John Hennes Trucking
Company; Baumhardt Sand and Gravel; Wm.
Tiede & Sons; Rosenthal Construction Co., Inc.;
Gross Construction Co., Inc.; or Charles D.
Smith and Son, Inc.; or any other person engaged
in commerce or in an industry affecting com-
merce, to cease using, selling, handling, transport-
ing, or otherwise dealing in the products of, or
cease doing business with, Ready Mixed Con-
crete, Inc.
WE WILL NOT threaten, coerce, or restrain
Workshops, Inc.; John Hennes Trucking Compa-
ny; Baumhardt Sand and Gravel; Wm. Tiede &
Sons; Rosenthal Construction Co., Inc.; Gross
Construction Co., Inc.; or Charles D. Smith and
Son, Inc., or any other person engaged in
commerce or in an industry affecting commerce,
where an object thereof is to force or require
Workshops, Inc.; John Hennes Trucking Compa-
ny; Baumhardt Sand and Gravel; Wm. Tiede &
Sons; Rosenthal Construction Co., Inc.; Gross
Construction Co., Inc.; or Charles D. Smith and
Son, Inc.; or any other person engaged in
commerce or in an industry affecting commerce,
to cease using, selling, handling, transporting, or
otherwise dealing in the products of, or to cease
doing business with, Ready Mixed Concrete, Inc.
263
GENERAL TEAMSTER,
WAREHOUSE AND DAIRY
EMPLOYEES UNION
LOCAL No. 126,
AFFILIATED WITH THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
APPENDIX B
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Local #782, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO
To employees of Charles D. Smith and Son, Inc.
After a trial in which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the law and has
ordered us to post this notice and we intend to carry
out the Order of the Board and abide by the
following:
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting
for us, whatever his title may be, engage in, or
induce or encourage any individual employed by
Charles D. Smith and Son, Inc., 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 employment to use,
manufacture, process, transport,' or otherwise
handle or work on any goods, articles, materials,
or commodities or to perform any services, where
an object thereof is to force or require Charles D.
Smith and Son, Inc., or any other person, to cease
using, selling, handling, transporting, or otherwise
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dealing in the products of, or to cease doing
business with, Ready Mixed Concrete, Inc.
LOCAL # 782, UNITED
BROTHERHOOD OF
CARPENTERS AND
JOINERS OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not oe defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
APPENDIX C
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Building and Construction Trades
Council of Fond Du Lac County
To employees of Charles D. Smith and Son, Inc.
After a trial in which all sides had the opportunity
to present their evidence, the National LaborRelations
Board has found that we violated the law and has or-
dered us to post this notice and abide by the following:
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting
for us, whatever his title may be, engage in, or
induce or encourage any individual employed by
Charles D. Smith and Son, Inc., 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 employment to use,
manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials,
or commodities or to perform any services, where
an object thereof is to force or require Charles D.
Smith and Son, Inc., or any other person, to cease
using, selling, handling, transporting, or otherwise
dealing in the products of, or to cease doing
business with, Ready Mixed Concrete, Inc.
BUILDING AND
CONSTRUCTION TRADES
COUNCIL OF FOND Du
LAC COUNTY
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
APPENDIX D
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Local # 1086, International Hod
Carriers, Building and Common Laborers Union of
America, AFL-CIO
To employees of Charles D. Smith and Son, Inc.
After a trial in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law
and has ordered us to post this notice and we
intend to carry out the Order of the Board and
abide by the following:
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting
for us, whatever his title may be, engage in, or
induce or encourage any individual employed by
Charles D. Smith and Son, Inc., 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 employment to use,
manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials,
or commodities or to perform any services, where
an object thereof is to force or require Charles D.
Smith and Son, Inc., or any other person, to cease
using, selling, handling, transporting, or otherwise
dealing in the products of, or to cease doing
business with, Ready Mixed Concrete, Inc.
GENERAL TEAMSTERS LOCAL NO. 126
LOCAL # 1086,
INTERNATIONAL HOD
CARRIERS, BUILDING AND
COMMON LABORERS
UNION OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
APPENDIX E
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Local #206, United Association
of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada
To employees of Workshops, Inc., and Rosenthal
Construction Co., Inc.
After a trial in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
carry out the Order of the Board and abide by the fol-
lowing:
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting
for us, whatever his title may be, engage in, or
induce or encourage any individual employed by
Workshops, Inc., Rosenthal Construction Co.,
Inc., 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 employment to
use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials,
or commodities or to perform any services, where
an object thereof is to force or require Work-
shops, Inc., Rosenthal Construction Co., Inc., or
any other person, to cease using, selling, handling,
transporting, or otherwise dealing in the products
of, or to cease doing business with, Ready Mixed
Concrete, Inc.
265
WE WILL NOT threaten, coerce, or restrain
Workshops, Inc., Rosenthal Construction Co.,
Inc., or any other person engaged in commerce or
in an industry affecting commerce, where an
object thereof is to force or require Workshops,
Inc., Rosenthal Construction Co., Inc., or any
other person, to cease using, selling, handling,
transporting, or otherwise dealing in the products
of, or cease doing business with, Ready Mixed
Concrete, Inc.
LOCAL # 206, UNITED
ASSOCIATION OF
JOURNEYMEN'AND
APPRENTICES OF THE
PLUMBING AND PIPE
FITTING INDUSTRY OF
THE UNITED STATES AND
CANADA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
APPENDIX F
NOTICE
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
To all members of Local # 139, International Union
of Operating Engineers, AFL-CIO
To employees of Charles D. Smith and Son, Inc.
After a trial in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the law and
has ordered us to post this notice and we intend to
carry out the Order of the Board and abide by the
following:
WE WILL NOT, nor will our officers, business
representatives, business agents, or anyone acting
for us, whatever his title may be, engage in, or
induce or encourage any individual employed by
Charles D. Smith and Son, Inc., 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 employment to use,
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials,
or commodities or to perform any services, where
an object thereof is to force or require Charles D.
Smith and Son, Inc., or any other person, to cease
using, selling, handling, transporting, or otherwise
dealing in the products of, or to cease doing
business with, Ready Mixed Concrete, Inc.
WE WILL NOT threaten, coerce, or restrain
Charles D. Smith and Son, Inc., or any other
person engaged in commerce or in an industry
affecting commerce, where an object thereof is to
force or require Charles D. Smith and Son, Inc.,
or any other person, to cease using, selling,
handling, transporting, or otherwise dealing in the
products of, or cease doing business with, Ready
Mixed Concrete, Inc.
LOCAL # 139,
INTERNATIONAL UNION
OF OPERATING
ENGINEERS , AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Second Floor, Commerce Building,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: The trial in this
proceeding, with all parties represented, was held before
me in Fond du Lac, Wisconsin, on February 17, 18, and
19, 1971, upon the General Counsel's complaint' dated
January 15, 1971,2 and respondents' answer .3 In general,
the issue raised by the pleadings was whether respondents
violated Section 8(b)(4)(i) and (ii)(B) of the National Labor
Relations Act, as amended (herein called the Act).
Particularly, the questions for decision are as follows:
1. Have respondents been engaged as joint venturers in
1 During the trial par. 13 of the complaint was amended to substitute the
name Martin Koenig for the third name appearing therein.
2 The complaint was issued pursuant to a charge filed on November 18,
1970, by Ready Mixed Concrete, Inc.
3 During the trial the pleadings were amended by changing the
designation of respondent United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of the United States and
a campaign to put Ready Mixed Concrete, Inc. (herein
called RMC), out of business?
2. Did any respondent engage in secondary picketing?
3. Was any individual employed by any person with
whom RMC does business, or by any other person,
induced or encouraged by means other than picketing to
refrain from performing services for his employer?
4. Was any person with whom RMC does business, or
was any other person, threatened, restrained, or coerced?
5. Assuming an affirmative answer to questions 2, 3, or
4, above, did an object of the conduct involved fall within
the proscription of Section 8(b)(4)(B) of the Act?
Upon the entire record,4 upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the able
briefs submitted by the parties,5 I make the following:
FINDINGS OF FACT
1. JURISDICTION
RMC, a Wisconsin corporation, is engaged at Fond du
Lac, Wisconsin, in the preparation, sale, and delivery of
concrete. RMC annually sells and delivers concrete valued
at more than $50,000 to customers located within the State
of Wisconsin who are themselves engaged in commerce or
in industries affecting commerce.
Gross Construction Co. Inc., Rosenthal Construction
Company, Inc., Wm. Tiede & Sons, Charles D. Smith and
Son Inc., The Hutter Construction Co., and Baumhardt
Sand & Gravel (herein respectively called Gross Construc-
tion, Rosenthal, Tiede, Smith, Hutter, and Baumhardt) are
contractors in the building and construction industry.
Workshops, Inc. (herein called Workshops) is a nonprofit
corporation organized for the purpose of rehabilitating and
training handicapped people. At all material times Rosen-
thal, as general contractor, has been erecting a building for
Workshops in Fond du Lac pursuant to a contract with
Workshops valued at more than $95,000.
On the foregoing facts I find that RMC and Workshops
are engaged in commerce within the meaning of the Act. I
further find that Gross, Rosenthal, Tiede, Smith, Hutter
and Baumhardt are engaged in an industry affecting
commerce within the meaning of Section 8(b)(4) of the Act.
Accordingly, I conclude that the assertion of jurisdiction in
this matter by the National Labor Relations Board (herein
called the Board) is warranted. Children's Village, Inc., 186
NLRB No. 137; S.M. Kisner, et al., etc. 131 NLRB 1196,
1199; Siemons Mailing Service, 122 NLRB 81, 85:
McAllister Transfer, Inc., 110 NLRB 1769, 1771-72.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondents are labor organizations within the meaning
of the Act.
Canada, AFL-CIO, from Local #501 to Local #206.
4 Issued simultaneously herewith is a separate order correcting obvious
inadvertent errors in the stenographic transcript of this proceeding.
5 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the trial, may not
be discussed in this Decision, each has been carefully weighed and
considered.
GENERAL TEAMSTERS LOCAL NO. 126 267
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly this case concerns itself, in the main, with the
measurers taken by respondent General Teamster, Ware-
house and Dairy Employees Union Local No. 126, etc.
(herein called Teamsters Union) to effectuate its admitted
purpose of putting RMC out of business and thus bring to
a close a dispute between them of long standing. The
complaint alleges, and the General Counsel and RMC
contend,6 that to accomplish this end respondent Team-
sters Union and the other respondents combined together
in a joint venture and engaged in conduct, including
picketing of construction sites at which RMC delivered
concrete, violative of Section 8(b)(4)(B) of the Act.7
Seeking exculpation, respondents deny that they were, or
are, joint venturers, assert that the picketing was carried on
in compliance with the criteria for lawful common situs
picketing laid down by the Board in Moore Dry Dock
Company, 92 NLRB 547, 549, and that their other conduct
did not fall within the purview of Section 8(b)(4)(B).
B. General Principles
The purpose of Section 8(b)(4)(B) of the Act, like its
predecessor former Section 8(b)(4)(A),8 is to combat
secondary boycotts .9 Its provisions are patently complex,
difficult to apply,1° and require construction and reconcili-
ation with other provisions of the Act rather than literal
reading. Especially is this true where, as here, the conduct
complained of occurred, in the main, at locations occupied
jointly by RMC, the employer involved in the dispute, and
neutral employers. See, generally, Local 761, etc. v.
N.LR.B., 366 U.S. 667, 671-679. In view of this, it would
be well, I feel, to set forth here, at the outset of this
Decision and before considering respondents' conduct in
detail, some general principles having applicability to the
broad situation presented by the evidence adduced at the
trial and to some of the contentions of the parties.
6 As the contentions of the General Counsel and RMC are, for the most
part, similar, unless otherwise mentioned they will be referred to hereinafter
as the General Counsel's contentions
7 Section 8(b)(4)(B) reads as follows:
Sec. 8...
(b) It shall be an unfair labor practice for a labor organization
or its agents-
(4)(1) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process,
transport, or otherwise handle or or work on any goods, articles,
materials, or commodities or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in commerce or
in an industry affecting commerce, where in either case an
object thereof is:
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person . . Provided That
nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or
primary picketing,
8 Section 8(b)(4)(B) was enacted in 1959. It was "designed to close
certain loopholes in the application of Section 8(b)(4)(A)." N.L.RB v.
Section 8(b)(4)(B) is ... the product of legislative
compromise and also reflects a concern with protecting
labor organizations' right to exert legitimate pressure
aimed at the employer with whom there is a primary
dispute. This primary activity is protected even though
it may seriously affect neutral third parties.
Thus there are two threads to Section 8(b)(4)(B) that
require disputed conduct to be classified as either
"primary" or "secondary." And the tapestry that has
been woven in classifying such conduct is among the
labor law's most intricate. N.LR.B. v. Local 825,
International Union of Operating Engineers, AFL-CIO,
400 U.S. 297, 303.
Section 8(b)(4)(B) of the Act condemns certain conduct
an object of which is to force or require "any person . . . to
cease doing business with any other person." However, as
was made clear in International Rice Milling Co. Inc., et al.
v. N.L.R.B., 341 U.S. 665, 669-673, primary conduct,
including picketing even for an interdicted object is not
unlawful. "Plainly, the object of all picketing at all times is
to influence third persons to withhold their business or
services from the struck employer. In this respect there is
no distinction between lawful primary picketing and
unlawful secondary picketing." Schultz Refrigerated Serv-
ice, Inc., 87 NLRB 502, 505.
The interference with business relationships adverted to
in Schultz "is the necessary consequence of the purest form
of primary activity [and is] clearly protected. Likewise
secondary activity could have such a limited goal and the
foreseeable result of the conduct could be, while disruptive,
so slight that the `cease doing business' requirement is not
met." Operating Engineers, supra, at 304.
Accordingly, there is no violation of Section 8(b)(4)(B) of
the Act unless there is a concurrence of unlawful conduct
and proscribed object.11 In recognition of this principle
RMC states in its brief "even if the union's objective is
within the literal meaning of section 8(b)(4)(B), if the
[conduct] is legitimate primary activity, it is not unlawful."
Respondent Teamsters Union has admitted that the
Servette, Inc., 377 U.S. 46, 51.
9 "The gravamen of a second boycott is that its sanctions bear, not upon
the employer who alone is a party to the dispute, but upon some third party
who has no concern in it. Its aim is to compel him to stop business with the
employer in the hope that this will induce the employer to give in to his
employees' demands." International Brotherhood of Electrical Workers, Local
501, v. N.LR.B, 181 F.2d 34,37 (C.A. 2); affd 341 U.S. 694.
10 "[0Ine of the most important , but one of the most elusive distinctions
embedded in our labor law [is] the distinction between `primary' and
`secondary' union activity under Section 8(b)(4)(B) of the . . . Act." Local
742, United Brotherhood of Carpenters etc., et a!. v. N.LR. B., et at 444 F.2d
895 (C.A.D.C.)
11 A & B Plumbing, Inc., 171 NLRB No. 66; L G Electric Contractors,
Inc., 154 NLRB 766; and Tayloe Glass Company, 180 NLRB No 42,
decided in reliance upon L G Electric, appear to be to the contrary. They
seem to hold that notwithstanding lawful picketing, a union violates Section
8(b)(4)(B) if it expressly states to a neutral person that an object of the
picketing is to cause that person to cease doing business with the struck
employer. These cases, however, are not in accord with the weight of
authority. Moreover, in Estes Express Lines, Inc., 181 NLRB No. 121; and
Quality Roofing Company, 169 NLRB 1014, both of which presented facts
similar to L G Electric, the doctrine seenungly enunciated in L. G. Electric
was not followed. Furthermore, in every decision in which the Board cited
L G. Electric or A & B Plumbing for the proposition set forth above in this
footnote, except Tayloe Glass, there was conduct which tainted the
picketing.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
object of its picketing and other conduct is to put RMC out
of business. Because, realistically, this object can be
effectuated only by causing customers of RMC to "cease
doing business" with RMC, the General Counsel, on brief,
urges me to find "all picketing [unlawful] wherever it
occurr[ed]," except that which might have taken place at
RMC's office or plant. However, were I to do so without
considering whether the picketing was primary or second-
ary I would have to give the statute an unwarranted broad
reading and ignore the teaching of Operating Engineers,
Rice Milling, and Schultz.
Unlike the situation presented in Operating Engineers,
where the Court noted that "the normally difficult task of
classifying union conduct [within the framework of Section
8(b)(4)(B) of the Act was there] easy," here the situation is
normal. The "task of classifying [respondents'] conduct,"
especially the picketing, is "difficult."
As will appear, all the picketing complained of occurred
at common sites, "i.e., . . . where a neutral employer is
engaged along with the primary employer [RMC 1 in
different activities on the same premises." N.L.R.B. v.
International Hod Carriers, Building and Common Laborers'
Union etc., 285 F.2d 397, 400 (C.A. 8), cert. denied 366 U.S.
903. Foreshadowing the "legislative compromise" which
later produced Section 8(b)(4)(B) of the Act and "balanc-
ing the right of a union to picket at the site of its dispute as
against the right of a secondary employer to be free from
picketing in a controversy in which it is not directly
involved," the Board in Moore Dry Dock Company, 92
NLRB 547, 549, established standards to assist in deter-
mining when picketing at common sites is pnmary. These
are:
(a) The picketing is strictly limited to times when the
situs of the dispute is located on the secondary
employer's premises;
(b) [A]t the time of the picketing the primary employer
is engaged in its normal business at the situs;
(c) [T]he picketing is limited to places reasonably close
to the location of the situs;
(d) [T]he picketing discloses clearly that the dispute is
with the primary employer.
Where all the foregoing conditions are met the picketing is
clothed with a "presumption of legality [rebuttable] by
other relevant evidence disclosing that the true objective of
the picketing was the enmeshment of neutrals." Jones and
Jones, Inc., 158 NLRB 549, 553.
Care must be exercised to avoid a mechanical applica-
tion of the Moore Dry Dock criteria for lawful common
situs picketing. "These standards," as the Board made
plain in Plauche Electric, Inc., 135 NLRB 250, 255, "are not
to be applied on an indiscriminate `per se' basis, but are to
be regarded merely as [commonsense] aids in determining
the underlying question of statutory violation." Following
this rationale, the Board has refused to find violations of
Section 8(b)(4)(B) of the Act notwithstanding a failure of
12 The cases cited in the text are not intended to be inclusive. They are
set forth merely as examples
13 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondents' alleged unfair labor
practices and the conclusions to which they may give rise. To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here, although they, as well as the findings, may again
compliance with Moore Dry Dock standards where the
evidence disclosed that, overall, the picketing was not
designed to extend beyond the primary employer. Con-
versely, the Board has found violations despite literal
compliance with those standards where the union's other
conduct at the picketed site indicated that its main purpose
was to enmesh neutrals in its dispute.
Thus, in Timber Buildings, Inc., 176 , NLRB No. 17; New
Power Wire and Electric Corp., 144 NLRB 1089, 1093, affd.
340 F.2d 71 (C.A. 2); and Plauche the Board concluded
that picketing at common sites during the absence of
pnmary employees was not unlawful. A similar conclusion
as to the lawfulness of picketing was reached in Reilly
Cartage, Inc., 183 NLRB No. 39, despite the fact that the
picketing did not take place in the immediate vicinity of
the area in which the primary employees were working. On
the other hand, although there was ostensible conformity
with Moore Dry Dock criteria in Roger W. Peters
Construction Co. Inc., 168 NLRB 606, '610-611; Eastern
New York Construction Employers, Inc., 153 NLRB 993,
994-995; Northwestern Construction of Washington, 152
NLRB 975, 980-981; and Riss & Company, Inc., 130 NLRB
943, 948-950, enfd. 300 F.2d 317 (C.A. 3), the Board found
the picketing to be violative of Section 8(b)(4)(B) of the
Act.12
C. Preliminary Findings and Conclusions 13
1. The dispute between respondent Teamsters
Union and RMC
RMC has been furnishing concrete to contractors in the
construction industry since at least 1956. It is one of the
two suppliers of concrete in Fond du Lac, the other being
Lakeview Sand and Gravel Company (herein called
Lakeview), whose employees have been represented, at all
material times by respondent Teamsters Union.
Before August 1970 Leo Geis, the present president of
RMC, owned 20 percent of the stock of RMC, was one of
its officers , and sat on its board of directors . Since its
organization, Geis, alone, has been RMC's manager. In
this capacity Geis has had complete control over the day-
to-day operations of RMC.
In August 1970 Geis and his wife became the sole
stockholders of RMC. Upon their acquisition of all the
stock of RMC, Geis became its president, secretary, and
treasurer; and his wife assumed the office of vice president.
Geis has continued in his role as manager of RMC and
continues to control its day-to-day affairs.
Fond du Lac is a relatively small community.14 In view
of this, and Geis' long held position as manager of RMC,
one of the city's two dealers in concrete, it is reasonable to
believe that his relationship to, and identification with,
RMC is well known to employers and employees engaged
in the construction industry in Fond du Lac.15 I find,
therefore, that all references to Geis in connection with the
be considered in other contexts.
14 As reported by the Bureau of the Census, U.S Department of
Commerce , the 1970 Census of Population & Housing showed that there
were 35 ,330 people living in Fond du Lac when that census was taken
15 Cf. Fairbank Knitting Mill, Inc, 134 NLRB 951, 956, Holland
Manufacturing Company, 129 NLRB 776, 777, 783-784, enfd. 292 F.2d 840
(CA 3), and Atlas Engine Works, Inc, 129 NLRB 101, 102, 107, among
GENERAL TEAMSTERS LOCAL NO. 126 269
dispute between RMC and respondent Teamsters Union
are tantamount to references to RMC.
The employees of RMC were represented by respondent
Teamsters Union until 1968. During this period a friend-
ship developed between Geis and William Wetzel, then
secretary-treasurer of respondent Teamsters Union.
In 1968 respondent Teamsters Union struck RMC in
furtherance of a contract dispute. While the strike was in
progress respondent Teamsters Union was decertified as
the collective-bargaining representative of RMC's employ-
ees.
Within the year following the election which resulted in
the decertification of respondent Teamsters Union it
picketed RMC, ostensibly to protest RMC's substandard
wages and working conditions. While this picketing was
being carried on Geis called William Wetzel, who, at the
time, was still secretary-treasurer of respondent Teamsters
Union, on the telephone. In the ensuing conversation,
which William Wetzel apparently thought was "confiden-
tial" and was being had "as a friend to a friend," 16 Geis
asked, as he testified, for "a straight answer on what we
could do to stop the picketing." In reply William Wetzel
stated that if RMC's employees came "down to the union
hall, [paid] up their dues, and [got] back into the union,"
the picketing would be discontinued.
Without telling William Wetzel that he was doing so,
Geis recorded this conversation. Armed with this recording
RMC filed a charge (Case 30-CP-33) alleging that
respondent Teamsters Union was engaging in unfair labor
practices within the meaning of Section 8(b)(7)(B) of the
Act.17 Geis' recording of his telephone conversation with
William Wetzel then came to light.
Upon being confronted with a transcription of this
conversation, respondent Teamsters Union, on September
23, 1969, executed a stipulation providing for the entry by
the Board of a consent order remedying the violations of
Section 8(b)(7)(B) of the Act set forth in RMC's charge.18
An order pursuant to this agreement was entered on
February 17, 1070. Among other things, it required
respondent Teamsters Umon to refrain from picketing
RMC for an object proscribed by Section 8(b)(7) until
September 10, 1970, and'to refrain from "all picketing of
[RMC] . . . at any place, for any object" until April 20,
1970.19
The knowledge that his conversation with Geis had been
recorded and the recording transcribed and, in essence,
made public had an adverse effect upon William Wetzel's
health. Heeding the advice of his physician William Wetzel
retired from his post as secretary-treasurer of respondent
Teamsters Union ad his son Donald Wetzel20 succeeded
to that position.
Under Wetzel's leadership respondent Teamsters Union
initiated a campaign to drive RMC out of business. This
others, in which the Board drew an inference of knowledge by an employer
of an employee's union activity based, in part, upon the fact that the
employer's place of business was located in a small community.
16 G'. C. Exh. S.
17 In sum, Section 8(b)(7)(B) prohibits organizational or recognitional
picketing within a year of the holding of a representation election
is Although, the terms of the stipulation do not appear in the record, an
assumption may be made that its provisions were similar to those appearing
in the Board's subsequent order.
19 G.C. Exh. 3.
was done, as Wetzel related, "because the actions taken by
Mr. Geis in betraying a friend was very detrimental to his
health, and after physical examination . . . the doctors
immediately decided that my father had to retire or take
the chances of dying, so . . . he took the early retirement
and retired."
In planning the campaign Wetzel did not seek the advice
of any other labor organization. Nor did he or any other
representative of respondent Teamsters Union discuss it
with agents of any other labor organization or inform them
of the course of action which respondent Teamsters Union
intended to follow.21
The reason for this, as Wetzel stated, was that the matter
was the "problem" of respondent Teamsters Union and
that in the past "where [respondent Teamsters Union]
thought [it was ] running a good, clean, legitimate cam-
paign" it had experienced "some very bad situations and
[a] lawsuit" because agents of other unions "without .. .
authority [of respondent Teamsters Union] went out and
said things which . . . tainted [its] campaign . . . there-
fore, we did not inform them of anything . . . if they knew
nothing, they could say nothing." Furthermore, respondent
Teamsters Union did not, except in two instances to be
described in detail in a later section of this Decision, ask
for assistance from any other labor organization and when
other labor organizations offered to help, the offers were
refused.
Having agreed in the stipulation settling the charge filed
by RMC under Section 8(b)(7)(B) of the Act to refrain
from picketing RMC "for any object" until April 20, 1970,
respondent Teamsters Union began its campaign to put
RMC out of business in another manner. In about
November 1969 respondent Teamsters Union published
two different leaflets describing its past relationship with
RMC and Geis' recording of his telephone conversation
with William Wetzel, its former secretary-treasurer.
At the end of each leaflet two questions were posed. In
one the questions were: "The next time you receive a
phone call from [Geis], will you wonder why he called you
and who else is listening? For that matter, do you want to
support this man by patronizing his firm?" 22 In the other
leaflet the following questions appeared: "Do you want to
support [Geis ] by patronizing his firm-Ready Mixed
Concrete, Inc.? Do you trust Leo Geis?" 23
More than 3,000 copies of each leaflet were distributed
by mail and handed out on the streets of Fond du Lac.
Their recipients included business firms of all types,
construction contractors, construction employees, employ-
ees of industrial and commercial establishments, officials
and members of labor organizations, and 'people in
general.24
As its campaign against RMC wore on, respondent
Teamsters Umon began, after April 20, 1970, to picket
20 All subsequent references to Wetzel without stating a first name relate
to Donald Wetzel.
21 The findings concerning the manner in which respondent Teamsters
Union prosecuted its campaign against RMC being made here will be again
considered in connection with the complaint 's allegations that "Respon-
dents have been engaged in a joint venture in furtherance of [Respondent
Teamsters I labor dispute with [RMC l."
22 G C. Exh. 4.
23 G.C Exh. 5.
24 The complaint does not allege, nor does the General Counsel contend,
(Continued)
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RMC at construction sites at which it supplied concrete.
Except in one instance , the pickets were either business
representatives of respondent Teamsters Union or persons
hired by it to picket.
The picket signs, like the leaflets distributed by respon-
dent Teamsters Union, referred to Geis' recording of his
telephone conversation with its former secretary-treasurer,
William Wetzel.25 Thus, some signs stated:
Leo Geis, president of Ready-Mixed, bugs private
telephones.
Leo Geis, president of FDL Redi-Mixed, Inc., bugs
private telephones.
Other signs were framed in the form of questions, and, like
the leaflets, asked:
Do you trust Leo Geis?
Would you help a man who betrayed a friend?
Donald Wetzel, the present secretary-treasurer of re-
spondent Teamsters Union, formulated rules for the
guidance of the pickets. They were instructed to picket
only when RMC's trucks and employees were present at
the construction site and to walk along the full frontage of
the site on abutting public streets. The pickets were further
instructed not to block entrances or exits to the site; not to
do anything which might cause people to refuse to enter, or
to remain on, the site; not to talk to anyone; and not to
reply to any questions. Instead of answering questions the
pickets were directed to give the questioner a slip of paper
containing the telephone number of respondent Teamsters
Union and a request that the recipient call that number for
information concerning the picketing.
On one occasion Wetzel received a report that a hired
picket, in violation of his instructions, had spoken to
someone while picketing. Notwithstanding the picket's
denial that he had done so, and without attempting to
verify the accuracy of the report, Wetzel, apparently out of
an abundance of caution, immediately discharged the
picket.
2. Workshops, Inc.26
As already noted, Workshops is a nonprofit corporation.
Its mission, charitable in nature, is to rehabilitate and train
handicapped people.
For instructional purposes Workshops obtains materials
and some subcontracts from industrial concerns in Fond
du Lac. This work is secured for Workshops by its staff,
members of its board of directors, and other persons,
including some representatives of labor organizations.27
Although Workshops tries to place its trainees in suitable
jobs, it does not seek employment for them in the building
industry because of their mental or physical inability, as
the case may be, to perform construction work.
Workshops has been located in Fond du Lac since about
1962. On two occasions shortly after it began its operations
that the publication and distribution of these leaflets constituted unfair
labor practices.
25 Not all signs were carried at all sites at which picketing occurred, but
one or more were displayed at each site.
26 The complaint alleges the commission of unfair labor practices in
connection with the construction of a new building for Workshops.
27 There is no evidence showing that labor organization representatives
who procurred work for Workshops did so in their official capacities.
28 The full name of each of these respondents , as set forth in the caption
there Workshops' facilities required extensive repair. In
each instance John Sharkey and Harold LaShay, respec-
tively business representatives of respondents Plumbers
Union and Laborers Union,28 were instrumental in
persuading members of their unions and of other construc-
tion unions to work on these projects without wages.
When Workshops began to make plans for the erection
of a new building, Sharkey, who was then serving on its
board of directors, became a member of its building
committee. In view of the help given to Workshops by
members of construction unions in connection with the
repair of its old building "several of the people on the
committee felt," as Sharkey testified, "that it should go
union a hundred percent." This position was adopted by
the building committee. However, the contract for the
erection of the building, as ultimately let, although
providing for the engagement of union contractors exclu-
sively, contained no similar provision regarding material-
men.
To help finance its new building Workshops established
a building fund. Sharkey solicited and obtained contrib-
utions to this fund from respondent Plumbers Union, of
which he was a business representative, and its members
and from many other labor organizations and their
members. In doing so Sharkey represented, in accordance
with the resolution of Workshops' building committee, that
only union people would be involved in the construction of
Workshops' new building. In this regard, as Sharkey
related, he gave the people from whom he sought
donations to the building fund "the understanding that it
would be one hundred percent union."
RMC and Lakeview,29 the only suppliers of concrete in
Fond du Lac, also contributed, in almost like amounts, to
Workshops' building fund. Because of this, Workshops'
board of directors, apparently without Sharkey's knowl-
edge, asked its general contractor to divide the concrete
orders equally between RMC and Lakeview and the
contractor acquiesced.
RMC began to deliver concrete to Workshops' building
site on June 29, 1970. Receiving a report to this effect early
on the morning of that day and having been reprimanded
by a member of respondent Plumbers Union for, as
Sharkey, its business representative, testified, "lying [when
he said] that everything [in connection with the building]
was going to be union," Sharkey decided to picket at the
site . To this end Sharkey put a blank picket banner in his
car, intending to write an appropriate legend on the sign
when he arrived at the project.
Before leaving his office, however, Sharkey called
Michael Ahern, the president of Workshops' board of
directors. He told Ahern that RMC's trucks were on the
building site, and as Ahern testified, "that he [Sharkey] felt
he had been double crossed by somebody on the board of
of the complaint , as amended, is Local #206, United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL-CIO , and Local 1086 International
Hod Carriers, Building and Common Laborers Union of America,
AFL-CIO. For convenience they will be referred to in the manner set forth
in the text.
29 It will be remembered that Lakeview's employees, unlike RMC's, are
represented by respondent Teamsters Union.
GENERAL TEAMSTERS LOCAL NO. 126
directors," in view of the decision by the building
committee "that it would be an all-union job." As Ahern
further testified, Sharkey "was very upset and said that he
was going to go over and start picketing the job." After
trying unsuccessfully, over the telephone, to dissuade
Sharkey from doing this, Ahern asked Sharkey to wait for
him so that they could drive to the site together. Sharkey
agreed.
While traveling from Sharkey's office to the project
Ahern again tried to dissuade Sharkey from picketing, but
was equally unsuccessful . Sharkey continued to insist that
he had been "doubled crossed" by Workshops' use of
concrete supplied by RMC. In this connection, Sharkey
suggested that the unions which had contributed to
Workshops' building fund upon his representations con-
cerning the union nature of the construction would
withdraw their support.
Upon their arrival at the site Sharkey and Ahern found
that Eugene Rickmeier, a business representative of
respondent Teamsters Union, was already picketing.
Sharkey asked Rickmeier for a picket sign . Rickmeier
refused to give him one, told Sharkey that his help was not
needed, and asked him to leave. Nevertheless, Sharkey
took a sign making reference to Geis, RMC's president,
from Rickmeier's car and began to picket on one of the
streets abutting the project.
Sharkey picketed for about 30 minutes. When he started
an RMC truck was on the site and it was shortly followed
by two others. Sharkey stopped picketing and left the
project either upon the departure of the second truck or
while the third was still on the site.
Sharkey's picketing was not authorized in advance by
respondent Plumbers Union, nor did it subsequently
approve his picketing. On the contrary, the executive board
of respondent Plumbers Union reprimanded Sharkey
because he picketed. As Sharkey stated in this connection,
that body gave him "a good chewing out."
Sharkey left the site with Howard Searl, another member
of Workshops' board of directors, who had arrived while
he was picketing. In a discussion related to his reason for
picketing Sharkey told Scarf, as the latter testified, that he
"had been, promised . . . that it would be an all union
job"; that he had made this representation to the members
of respondent Plumbers Union and to members of other
unions when soliciting contributions to Workshops' build-
ing fund from them; and that "this whole thing [had] made
a fool of [him and made him] look like a fool among [his]
fellow members."
Later in the day30 Sharkey attended an emergency
meeting of Workshops' building committee . Sharkey
repeated to them much of what he had earlier told Searl
concerning his picketing. He also informed the committee
that he was "disturbed" because he had been "lied to"
when it "promised" him that the construction of Work-
shops' new building "was to be a totally union job."31
For these reasons Sharkey announced that he was
resigning from the building committee and from Work-
30 All the events set forth in the instant section of this Decision took
place on June 29, 1970.
31 The findings in this paragraph are based on a synthesis of, and the
quotations are taken from, testimony given by Sharkey and Searl.
271
shops' board of directors and that he would no longer
assist Workshops in any of its functions.32 A similar
remark concerning the withdrawal of assistance from
Workshops was made on the same day by LaShay, a
business representative of respondent Laborers Union, in a
conversation with an official of Workshops' general
contractor.
The General Counsel contends that Sharkey's picketing
violated Section 8(b)(4)(B) of the Act because it did not
comport with the standards for lawful common situs
picketing appearing in Moore Dry Dock Company, 92
NLRB 547, 549. The General Counsel further contends
that respondent Plumbers Union is liable for Sharkey's
conduct because he is one of its business representatives.
"The only unfair labor practices to which [Section
8(b)(4)(B) of the Act] applies are such practices of a `labor
organization or its agents.' " Di Giorgio Fruit Corporation,
et al. v. N.L.R.B., 191 F.2d 642, 644 (C.A.D.C.), cert.
denied 342 U.S. 869. Accordingly, had Sharkey picketed
Workshops' construction site as an agent of respondent
Plumbers Union or some other respondent, an inquiry into
the manner in which his picketing was carried on would be
relevant. But this is not the case.
It is crystal clear from the evidence that Sharkey,
although a representative of respondent Plumbers Union,
was not picketing as an agent of that labor organization or
any other labor organization, but as an individual giving
vent to his outrage at having been, he thought, lied to and
made a fool of by Workshops. It is equally clear that
although Sharkey picketed with a sign mentioning Geis,
RMC's president, he was not picketing RMC but was, in
fact, picketing Workshops to support his protest against it
for his supposed shabby treatment.
This being so, it cannot be said that respondent
Plumbers Union or any other respondent violated Section
8(b)(4)(B) of the Act by Sharkey's picketing, regardless of
the manner in which it was carried on. The same
considerations apply to the remarks by Sharkey and
LaShay, business representative of respondent Laborers
Union, characterized as threats in the complaint, relating
to the withdrawal of their support from Workshops.
Accordingly, I conclude that the General Counsel has
not established that respondent Plumbers Union violated
Section 8(b)(4)(B) of the Act by reason of the picketing of
the building under construction for Workshops engaged in
by Sharkey, a business representative of respondent
Plumbers Union. I further conclude that the General
Counsel has not established that respondents Plumbers
Union and Laborers Union, or either of them, violated
Section 8(b)(4)(B) by reason of statements made by
Sharkey and LaShay, a business representative of respon-
dent Laborers Union, concerning the discontinuance of
their support of Workshops. I shall, therefore, recommend
that paragraph 17, insofar as it refers to the picketing by
respondent Plumbers Union, paragraph '19, and the
relating portions of paragraph 27, 28, 29, and 30 of the
complaint be dismissed.
32 An interesting sidelight to this is that notwithstanding his avowed
refusal at this meeting to be of assistance to Workshops, in January 1971,
Sharkey materially assisted Workshops in obtaining a substantial grant
from the United Fund.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The alleged joint venture
The complaint alleges that "Respondents have been
engaged in a joint venture in furtherance of [Respondent
Teamsters '] dispute with [RMC]." Some findings have
already been made concerning the manner in which
respondent Teamsters Union carried on its campaign to
drive RMC out of business . These findings show that labor
organizations operating in Fond du Lac were aware of the
campaign and the reasons for its institution . They also
show that in its efforts to bring about the demise of RMC
respondent Teamsters Union did not seek the advice of
any other respondent , did not discuss or plan its campaign
with them , did not inform them of the course of action it
intended to follow , and spurned their offers of assistance.
Although , as will be seen , some respondents engaged in
conduct which might be said to have been of help to
respondent Teamsters Union in effectuating its avowed
purpose of putting RMC out of business ,33 this was not
done with the knowledge or connivance of respondent
Teamsters Union ; nor, except in two instances , did it seek
such aid.
The two situations in which assistance from other
respondents was sought by respondent Teamsters Union
occurred through happenstance and inadvertence , rather
than through joint planning , and one was aborted. Both
involved picketing.
On November 18, 1970 , Eugene Rickmeier and Warren
Tupper , respectively business representatives of respon-
dents Teamsters Union and Local # 139 , International
Union of Operating Engineers , AFL-CIO (herein called
Engineers Union) were , together , inspecting building jobs
at which members of their unions were working. Upon
their arrival at the Fond du Lac County Mental Health
Center (herein called Health Center) construction project
RMC's trucks were there delivering concrete . Tupper
entered the site to transact his business and Rickmeier
went to his office to obtain picket signs and to look for one
of respondent Teamsters Union 's hired pickets to picket
RMC's trucks with him at the project.
Being unable to find a hired picket or any other
representative of respondent Teamsters Union , Rickmeier
returned to the Health Center construction site and asked
Tupper to join him in picketing . Tupper agreed and both
picketed as long as RMC's trucks remained at the site.
While Tupper was so engaged he was asked by Geis,
RMC's president , what the reason was for his picketing.
Tupper's answer was , as Geis testified , "birds of a feather
stick together."
Getting back to his office, Rickmeier made arrangements
for representatives of two other respondents , Laborers
Union and Local #782, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO (herein called
Carpenters Union ), to picket at the Health Center project
the next day . Rickmeier then informed Donald Wetzel,
secretary-treasurer of respondent Teamsters Union, that
Tupper had picketed that day and that he planned to
picket the next day with representatives of respondents
33 These incidents will be discussed in a later section of this Decision.
34 This being the case, no respondent will be held responsible for unfair
Laborers Union and Carpenters Union . At this, as
Rickmeier testified , Wetzel "really blew his cool" and told
Rickmeier that he did not "want anybody involved in this
damn thing but us."
Wetzel ended his tirade against Rickmeier , characterized
by the latter , as a "pretty good [eating ] out," by giving him
"[emphatic ] instructions . . . to just use only our people [as
pickets] ." Having been thus emphatically instructed,
Rickmeier canceled the arrangements he had made for the
next days' s picketing.
To establish a joint venture it must be demonstrated that
the venturers participated in a planned course of action,
jointly conceived, coordinated , and adopted to attain a
mutually agreed upon object . Cf. Fox Valley Material
Suppliers Association, Inc., 176 NLRB No. 51; Frank A.
Calhoun, 174 NLRB No. 185. Significant indicia of a joint
venture appear in Overnite Transportation Company, 130
NLRB 1007 , 1017. There , several unions were found to
have been parties to a joint venture to organize Overnite's
employees on evidence showing that they engaged "in
synchronized action" to attain their common goal, "held
joint meetings to discuss . . . progress . . . and to plan
courses of action," "agreed to conduct and join in a strike
against Overnite, and upon the time to begin it," and
"carried [picket signs bearing ] the name of each of the
involved" labor organizations . None of these factors is
present here.
As proof that the other respondents made common cause
with respondent Teamsters Union in its campaign to drive
RMC out of business , the General Counsel points to the
picketing of the Health Center project by Tupper, a
representative of respondent Engineers Union; to his
statement , while picketing, that "birds of a feather stick
together"; and to assistance given to respondent Teamsters
Union by other respondents . Tupper's picketing was,
however, completely accidental and not the result of a plan
conceived and adopted jointly by respondents Teamsters
Union and Engineers Union ; his "birds of a feather"
remark is too equivocal to serve as a foundation for a joint
venture finding ; and the assistance furnished by other
respondents to respondent Teamsters Union was not
sought , or knowingly accepted , by the latter.
Although the General Counsel has not done so, RMC
argues, on brief , that the attempt by Rickmeier, a business
representative of respondent Teamsters Union, to enlist
representatives of respondents Carpenters Union and
Laborers Union to serve as pickets at the Health Center
construction site shows that those respondents "had joined
in the labor dispute," and that respondent Teamsters
Union "made [itself ] responsible for the conduct of the
trades business representatives in furtherance of the
Teamsters picketing ." However , Rickmeier's efforts in this
direction , were completely inadvertent and, moreover,
were effectively aborted by respondent Teamsters Union
before they could be brought to fruition.
Accordingly , I conclude that the General Counsel has
not established that respondents engaged in a joint venture
to further the campaign of respondent Teamsters Union.34
labor practices committed by any other respondent . However, any
respondent shown by the evidence to have violated Sec. 8(bX4)(B) of the
GENERAL TEAMSTERS LOCAL NO. 126
I shall, therefore recommend the dismissal of paragraph 14
of the complaint to the extent that it alleges a joint venture.
D. Facts Concerning Respondents' Alleged Unfair
Labor Practices Related to Picketing
The complaint alleges that Section 8(b)(4)(B) of the Act
was violated by the manner in which picketing in support
of the campaign by respondent Teamsters Union against
RMC was conducted at four construction locations in
Fond du Lac; namely, the Lee Beverage warehouse, where
Gross Construction Co. Inc., was the general contractor;
the new building being erected for Workshops by Rosen-
thal Construction Company, Inc., as general contractor;
the terminal of Gross Common Carrier, Inc. (herein called
the Gross Terminal), where Gross Construction was
installing a new floor; and the Health Center, where
Charles D. Smith and Son, Inc., was general contractor.
The facts respecting the picketing at each of these locations
will be separately considered. However, four factors were
common to all picketing.
The first is that at no place where picketing was carried
on were the pickets invited to enter the premises and picket
in the immediate vicinity of RMC's trucks and thus
minimize the impact of the picketing on neutral employers
and their employees. The second common factor, related in
part to the first, is that at all picketed sites the pickets, at
times, were closer to neutral employees than to employees
of RMC. The third common factor is that the pickets could
be seen by RMC's employees from the places where they
performed their work at the sites at which picketing
occurred. Finally, the fourth factor common to all the
picketing is that at no site where picketing was carried on
was there a driveway set aside for the exclusive use of
RMC.
1. Lee Beverage warehouse
The Lee Beverage warehouse is bounded on the north by
Horseshoe Lane and on the west by Moms Street, both
public ways. Two driveways on Morris Street gave access
to the warehouse during its construction. Both of these
were used by RMC's trucks. RMC's trucks also entered
upon, and departed from, the project by crossing the
curbing on Morris Street (herein called the curb crossway)
south of the southern driveway on that street.
On May 20, 1970,35 Donald Wetzel, secretary-treasurer
of respondent Teamsters Union, picketed on Morris Street
respondent shown by the evidence to have violated Sec 8(b)(4)(B) of the
Act will be held liable, individually, for its unfair labor practices.
35 All dates subsequently mentioned without stating a year fall within
1970.
36 My findings as to the hunts of Wetzel's picketing are based on a
synthesis of the testimony given by him and by two truckdnvers employed
by RMC, Norbert Giebel and Sylvester Huck. To the extent that Leo Geis,
RMC's president, gave evidence to the contrary it is not believed.
3' My findings as to the time during which Wetzel picketed are based on
his testimony Huck, who drove the second RMC truck gave testimony
differing from Wetzel's in one detail. Huck testified that he drove off the
project through the curb crossway and turned north on Morris Street. Huck
testified further that as he crossed Horseshoe Lane, which he judged to be
about 100 to 300 yards from the construction site and which he reached
within a period of time estimated by him as being "less than a minute," or
perhaps "two or three minutes," he looked in his rear view mirror and saw
273
from the southern edge of the north driveway to the point
at which RMC's trucks crossed the curbing 36 Wetzel
picketed at this location during the presence on the site of
two RMC trucks. When none was there Wetzel sat in his
car which was parked on Moms Street, a few yards south
of the north driveway.
Upon the departure from the site of RMC's second truck
Wetzel stopped picketing.37 Respondent Teamsters Union
did not again picket at the Lee Beverage warehouse
construction site.
2. Workshops' new building
Workshops' new building is bounded on the east by
Brooke Street, and on the north by Forest Avenue. Brooke
Street and Forest Avenue are public streets on each of
which there was, at material times, one driveway through
which access to the project was gained. RMC's trucks
entered and left the site through the driveway on Forest
Avenue and also by crossing the curbing on Brooke Street
(herein called the curb crossway) at a point between the
driveway on that street and Forest Avenue.
Pursuant to an arrangement between Rosenthal, Work-
shops' general contractor, and RMC concrete was to be
continuously poured at the project during the morning of
June 29, 1970. As it happened, however, there was a hiatus
of about 20 minutes between the departure of each RMC
truck and the arrival of the next one.
On June 29, while the first RMC truck was on the
premises, Eugene Rickmeier, a business representative of
respondent Teamsters Union, began to picket on Brooke
Street, patrolling from its intersection with Forest Avenue
to the southern edge of the building under construction. In
following this path Rickmeier passed in front of the Brooke
Street curb crossway.
While picketing Rickmeier carried his sign high. Upon
the departure of the first RMC truck from the site,
Rickmeier reversed his sign and carried it so that the
placard was close to the ground. With his sign held in this
position Rickmeier walked to his car, which was parked on
Brooke Street, south of Workshops' property line. With the
coming of the second RMC truck Rickmeier resumed his
picketing on Brooke Street in the manner described. When
that truck left Rickmeier again discontinued his picketing,
reversed his sign, and walked to his car. Ric'kmeier once
more picketed on Brooke Street upon the arrival of the
third RMC truck.38
Rickmeier stopped picketing at the Workshops' site
Wetzel picketing "directly in front of his" car. The upshot of this testimony,
assuming its truth , is that Wetzel continued to picket for not more than 3
minutes after Huck left the site. Assuming further that Wetzel was not
actually walking to his car to await the arrival of the next RMC truck,
Wetzel's picketing for this very short period of time can, be disregarded
under the familiar doctrine of de minimis, there being no evidence that
Wetzel continued to picket after Huck crossed Horseshoe Lane.
38 My findings concerning the time and manner of Rickmeier's picketing
is based on his testimony as well as that given by John Sharkey, a business
representative of Plumbers Union, who, it will be remembered, also
picketed at Workshops' building project, and Norbert Gieblel, a truckdnver
employed by RMC Giebel, who made the first delivery of concrete to the
site, testified that "as [he ] was leaving the job ... after delivering the first
load [Rtckmeier and Sharkey ] walked over to a car" James Rosenthal,
Howard Searl, and Sylvester Huck, respectively, an official of Workshops'
general contractor, a member of Workshops' board of directors, and an
(Continued)
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when the third RMC truck left. Since then there has been
no picketing at that project by any respondent.
3. Gross Terminal
The Gross Terminal is bounded on the west by Satterlee
Street and on the south by Johnson Street, both public
streets. On Johnson Street, somewhat east of the terminal
building is a driveway through which RMC's trucks
entered, and departed from, the premises. This driveway is
also used by the employees and customers of an automo-
bile body shop. Attached to the west side of the building is
a loading platform at which trucks receive and discharge
freight, which is taken into, and out of, the terminal
through large doors in the west wall.
At material times there was a wide opening at approxi-
mately the midpoint of the east wall of the building.
Satterlee Street could be seen through this opening, if the
freight doors were not closed, notwithstanding that trucks
might be parked at the loading dock.
In making deliveries to the Gross Terminal, RMC's
trucks were driven through the driveway on Johnson Street
to the opening in the east wall. By means of a chute,
concrete was poured from the trucks through the opening
and received inside the building in wheelbarrows.
On November 17, 1970, while RMC's trucks were at the
terminal, respondent Teamsters Union stationed a picket
on the abutting streets. The picket on Johnson Street
patrolled from the western edge of the driveway to a point
about even with the center of the south wall of the
building. The picket on Satterlee Street walked a path
roughly equal- to the building frontage on that street 39 The
truckdrivers employed by RMC who came to the site saw
the picket on Satterlee Street through the opening in the
terminal's east wall while they were pouring concrete.
As earlier noted, the driveway on Johnson Street used by
RMC's drivers was also used by the employees and
customers of an automobile body shop. Because it did not
want to interfere with the business of this enterprise,
respondent Teamsters Union instructed the Johnson Street
picket not to walk in front of the driveway.
4. Health Center
The western boundary of the Health Center project is
Vincent Street and First Street is its southern boundary.
RMC truckdriver, testified that Rickmeler picketed at times when there
were no RMC trucks on the project Rosenthal stated that Rickmeier
continued to picket in the interval between the departure of the first truck
and the arrival of the second. The weight of Rosenthal's testimony,
however, is greatly diminished by his having been, during much of the time
in question, in the construction office, remotely situated from Brooke Street,
making and receiving telephone calls. Furthermore, Rosenthal testified that
once when he came out of the construction office he saw Rickmeier and
Sharkey, who had been picketing on Forest Avenue, walking together on
Brooke Street in the direction of Rickmeiei's car. Taking Rosenthal's
testimony as a whole and synthesizing it with that given by Rickmerer,
Sharkey and Giebel, I believe Rosenthal misinterpreted what he observed
Rickmeier was not picketing when Rosenthal saw him on Brooke Street
after the departure of the first RMC truck. Rickmeier and Sharkey were, in
fact, walking toward Rickmerer's car to await the arrival of the next RMC
truck. Searl testified that there was picketing for a "very short time [not]
more than a few minutes" when there was no RMC truck on the site Huck
testified that upon completing his delivery he drove off the project through
the curb crossway, turned north on Brooke Street, and as he was crossing
Both are public streets. At material times there were two
driveways on Vincent Street and four on First Street, all
giving access to the site. The two easternmost driveways on
First Street (herein called the parking lot driveways) also
led to an area being prepared to serve as a parking lot.
All driveways were used by RMC's trucks in entering,
and leaving, the project. In addition to entering, and
leaving, the site through the driveways, RMC's trucks also
did so by crossing the curbing at various points on First
Street.
On several days in November and December 1970
picketing was carried on at the project while RMC's trucks
were present. Except for November 18, the first day on
which picketing took place, the pickets were business
representatives of, or people hired by, respondent Team-
sters Union. On November 18, as has already been found,
Warren Tupper, a business representative of respondent
Engineers Union, was one of two pickets. The other was
Eugene Rickmeier, a business representative of respondent
Teamsters Union.
Picketing took place on November 18, 20, and 30, and on
December 2. On each of those days First Street was
patrolled from its intersection with Vincent Street west-
ward to the western edge of the east parking lot driveway.
On November 20 the south driveway on Vincent Street was
picketed.40 On November 30 there was picketing on
Vincent Street from its intersection with First Street
northward to the north driveway.
E. Contentions and Concluding Findings Concerning
Respondents ' Alleged Unfair Labor Practices Related
to Picketing
In an earlier portion of this Decision I rejected what
appears to be the General Counsel's main contention that
all the picketing disclosed by the evidence, regardless of
the manner in which it was conducted, was unlawful
because it was carried on in furtherance of an object, freely
admitted by respondent Teamsters Union, proscribed by
Section 8(b)(4)(B) of the Act. Perhaps in anticipation of
this the General Counsel urges two additional theories to
support his claim as to the violative nature of the picketing.
Both are based on its asserted nonconformity with the
Forest Avenue, a distance he estimated as being "maybe 25, 30 feet" from
the curb crossway he "noticed [that Rickmeier was ] still picketing."
Accepting the testimony of Searl and Huck at face value , it shows only that
Rickmeier picketed in the absence of an RMC truck in one case for "a few
minutes ," and in the other for what must have been only a few seconds.
Like the picketing at the Lee Beverage site in the absence of an RMC truck,
also described by Huck (see footnote 37), the picketing here under
consideration similarly falls within the de minimrs principle. Accordingly, it,
too, will be disregarded.
as My finding concerning the extent of the picketing on Satterlee Street is
based on testimony given by Norbert Giebel, a truckdriver employed by
RMC. Leo Geis, RMC's president, testified that the picket covered a longer
path. However, I was more impressed with Giebel's truthfulness and powers
of observation than I was with Geis'.
40 My findings concerning the picketing on Vincent Street on November
20 is based on testimony given by Norbert Giebel, a truckdnver employed
by RMC. Leo Geis, RMC's president testified to more extensive picketing. I
have already commented on the relative merits of Giebel's and Geis'
testimony . (See fn. 39).
GENERAL TEAMSTERS LOCAL NO. 126 275
standards for lawful common situs picketing set forth in
Moore Dry Dock Company, 92 NLRB 547, 549.41
The General Counsel's first additional argument, in this
regard, is that the picketing at Lee Beverage and Work-
shops Construction sites was carried on during periods
when no RMC trucks were there. If, contrary to my
findings that this was not the case, there was, indeed, such
picketing at these locations, its duration was so short as to
be of no moment. Accordingly, I also reject this argument.
The General Counsel's second additional point dealing
with the failure of the picketing to comport with Moore Dry
Dock criteria is that at times the pickets were closer to
neutral employees than they were to RMC's truckdrivers.
As will be seen, this contention is likewise not well taken.
As I have found, at none of the sites where picketing was
conducted was there a driveway set aside for the exclusive
use of RMC. No driveway having been reserved for them,
RMC's trucks entered, and departed from, those premises
through any convenient driveway and, in the case of the
Lee Beverage, Workshops and Health Center projects by
driving over the curbing of abutting streets at irregular
points removed from the driveways. In these circumstances
Section 8(b)(4)(B) of the Act does not reach the picketing
carried on along the public streets on which the construc-
tion sites fronted. Jones and Jones, Inc., 158 NLRB 549,
550-552.
The fact that the paths followed by the pickets, who were
seen at all projects by RMC's employees, took them closer,
at times, to areas where neutral employees were at work
than to places where RMC's employees worked is not
relevant here to a determination concerning the legality of
the picketing.42 This was merely a nonviolative concomi-
tant of the picketing, which otherwise appears to have been
lawful primary picketing and did not convert it into illegal
secondary picketing.
To minimize the incidental effect picketing on the streets
abutting the projects might have had on neutral employees
who were nearer, on occasions, to the pickets than were
RMC's employees, their employers, as the Board suggested
in a recent case "could easily have invited the pickets to the
immediate vicinity of "C's ] trucks." This not having
been done, I, like the Board in that case, "cannot find that
... the picketing [on the streets] either violated the Moore
Dry Dock standard requiring that picketing be limited to
locations reasonably proximate to the primary situs, or
otherwise evidenced a secondary objective." Reilly Car-
tage, Inc., 183 NLRB No. 39. Cf. Retail Fruit Dealers'
Association, 116 NLRB 856, 857, 860-861, enfd. 249 F.2d
591 (C.A. 9).
Accordingly, I conclude that the General Counsel has
41 As I have already pointed out "these standards . . are not to be
applied on an indiscriminate per se' basis, but are to be regarded merely as
[commonsense} aids in determining the underlying question of statutory
violation." Plauche Electric, Inc., 135 NLRB 250, 255.
42 The inability of primary employees working at a common site to see
the pickets was deemed, in Brawn Transport Corp., 144 NLRB 590, 591,
592-593, 600-601, to be insignificant The Fifth Circuit did not agree with
the Board on this point. Brown Transport Corporation v. N L KB, 334 F.2d
30, 35, 38-39. However, I am bound by the Board's view Prudential
Insurance Company of America, 119 NLRB 768, 773, reversed on other
grounds, 361 U.S. 477. Accordingly, even if I had found that the pickets
could not be seen by RMC's employees, I would not have considered that to
be a material element insofar as the General Counsel's argument here under
not established that the picketing complained of violated
Section 8(b)(4)(B) of the Act. I shall, therefore, recommend
that paragraphs 16, 17, insofar as it refers to picketing by
respondent Teamsters Union,43 21, 22, and the relating
portions of paragraphs 27, 28, 29, and 30 of the complaint
be dismissed.
F. Facts Concerning Respondents' Alleged Unfair
Labor Practices Unrelated to Picketing
In addition to alleging violations of Section 8(b)(4)(B) of
the Act by the manner in which picketing was carried on,
the complaint asserts that Section 8(b)(4)(B ) was violated
in other respects. The incidents involved in these allega-
tions occurred at the place where the Oakfield Elementary
Learning Center (herein called the Oakfield School) was
under construction, at the Health Center project, and at a
prejob conference held in connection with the erection of a
warehouse to be occupied upon completion by the Badger
Liquor Company (herein called Badger).
As was done with respect to the alleged picketing
violations, each of the events will be separately considered.
However, it is patent that an object of all the conduct to be
considered below, whether or not found to be within the
ambit of Section 8(b)(4)(i) or (ii) of the Act, fell within the
proscription of Section 8(b)(4)(B).44
1. Oakfield School
At all material times Wm. Tiede & Sons was engaged, as
general contractor, in building the Oakfield School. The
concrete used by Tiede on this job was furnished by RMC.
Roy Schroeder was Tiede's superintendent at the
Oakfield School project. He was Tiede's highest ranking
official at the site and had day-to-day control over the
work. Also employed there by Tiede was Donald Lecker,
an apprentice carpenter.
On June 30, 1970, while Schroeder and Lecker were
working together at the site they were approached by
Eugene Rickmeier, a business representative of respondent
Teamsters Union. Rickmeier informed them that "scab
concrete" was being used; suggested that concrete be
obtained from a source other than RMC; and stated that
unless that were done "he would possibly put up a picket,"
which he hoped they "would honor."45
2. Health Center
Leander Olig, a member of respondent Carpenters
Union, was employed by Charles D. Smith and Son, Inc.,
the general contractor at the Health Center project. On
consideration , is concerned.
43 1 have already indicated my intention to recommend the dismissal of
par 17 of the complaint insofar as it refers to picketing by respondent
Plumbers Union. My recommendation here concerns the remainder of this
paragraph.
44 Although this conduct, insofar as it was engaged in by respondents
other than Teamsters Union, may have been designed to be of assistance to
respondent Teamsters Union in its campaign to drive RMC out of business,
there is no evidence to show that such help was sought or instigated by
respondent Teamsters Union.
45 The quotations appearing in the text are taken from testimony given
by Schroeder and Lecker.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 18, 1970, Olig spoke to John Murray, a business
representative of his union about the picketing against
RMC which was then in progress at the site. Murray told
Ohg, as the latter testified, that if pickets were not present
when he reported for work he "should stay there and fill
out the day, but if [pickets] happened to be on the job .. .
any time before [he got] there [he] should honor the picket
line."
On December 4, Olig and Murray again discussed the
picketing at the site. Also present on this occasion was
Harold Van Gorder, a business representative of respon-
dent Building and Construction Trades Council of Fond
du Lac County (herein called the Council). During the
course of this conversation Olig stated that he would
continue to work, notwithstanding the picketing, unless it
began before he arrived at the project. Van Gorder,
however, had a different opinion. He told Olig that "as far
as he was concerned [upon the appearance of a picket] we
should all quit for the day and walk off the job."46
Leroy Schneider, a member of respondent Laborers
Union, was also employed at the Health Center project by
Smith, the general contractor. On about November 24,
Eugene McEvoy, a business representative of Schneider's
union, visited the site.
While McEvoy was on the premises Schneider asked him
what he should do if picketing started while he was already
working. McEvoy replied, Schneider testified, that he
could not tell Schneider what to do in such a situation "but
he knew what he would do." McEvoy's version of the
answer he gave to Schneider's question is a little different.
McEvoy stated that he said to Schneider "don't bring [the
pickets ] up to me now. You know what to do."
3. The prejob conference
The Hutter Construction Co., was retained to build a
warehouse in Fond du Lac for Badger Liquor Company.
On November 18, 1970, before Hutter started its work for
Badger, F. W. Harvath, Hutter's project manager, and
Merle Failen, another Hutter official, attended a prejob
conference called by Harold Van Gorder, a business
representative of respondent Council.47 Also in attendance
at this conference were representatives of several construc-
tion unions located in Fond du Lac. When the meeting
began there was no representative of respondent Teamsters
Union present.
The principal concern of the labor organizations whose
representatives were in attendance at the conference, was
to make certain that the employees of all contractors and
materialmen who would be engaged at the Badger project
were members of an appropriate craft union. When the
subject of the concrete supplier arose, Hutter's officials
stated that Hutter intended to obtain some of its concrete
from RMC. Anticipating that this might cause a problem,
Van Gorder asked Donald Wetzel, secretary-treasurer of
46 The findings made in this paragraph are based on, and the quotation
is taken from, testimony given by Ohg, whose demeanor as a witness was
above reproach Although Van Gorder admitted his participation in the
conversation in question and also admitted asking Olig whether he knew
what he was "supposed to do when there is a picket sign out on a project,"
he denied telling Olig "to honor that sign." In view of Van Gorder's
respondent Teamsters Union, to join the meeting and
Wetzel did so.
Failen, a Hutter official, asked Wetzel, as the latter
testified,48 "to give him a pass on the use of [RMC)" on the
Badger work. Wetzel refused to do this, telling Failen that
"if Mr. Geis and his equipment went on the job site, we
will be there . . . to picket on the days that he was
there."49 At this point Failen suggested that respondent
Teamsters Union would be picketing Hutter at the
construction site, not RMC. To this Wetzel replied, as he
further testified, "You said that and not me." Wetzel then
left the meeting.
In addition to Wetzel, Harvath, Hutter's project manag-
er, also gave evidence as to the events at the prejob
conference. Except in one respect Harvath's testimony was
in general agreement with Wetzel's. The point of difference
consists of Harvath's statement that after saying"You said
that and not me" Wetzel added "But you know what I
mean."
Harvath also testified that he was aware that respondent
Teamsters Union had picketed at construction sites, but
that he knew of no occasion when such picketing was
carried on in the absence of RMC's trucks from the sites.
Finally, Harvath testified that except for Failen, no one at
the conference said that Hutter, rather than RMC, would
be picketed.
G. Contentions and Concluding Findings Concerning
Respondents' Alleged Unfair Labor Practices
Unrelated to Picketing
1. Oakfield School
The plea made by Eugene Rickmeier, a business
representative of respondent Teamsters Union, that Roy
Schroeder and Donald Lecker, who were employed at the
Oakfield School project "honor" a picket line directed to
RMC at the site was violative of Section 8(b)(4)(i)(B) of the
Act. This, because the thrust of Rickmeier's appeal was to
induce the individuals to whom it was made, one a
supervisor and the other a rank-and-file employee, to
withhold their services from their employer. N.L R.B. v.
Servette, Inc., 377 U.S. 46, 49-54. However, there being no
evidence that a picket line was ever established or that the
inducement offered by Rickmeier was effective, it cannot
be said that Rickmeier's appeal also violated Section
8(b)(4)(ii)(B). Cf. Baughan Plumbing and Heating Company,
Incorporated, 157 NLRB 20, 21.
Nor, as the General Counsel urges, can Rickmeier's
warning to Schroeder, the general contractor's superin-
tendent, concerning the establishment of the picket line be
said to be a threat within the meaning of Section
8(b)(4)(ii)(B) of the Act. It can be likened to "the mere
giving of notice of prospective strike action against a
subcontractor to the prime contractor" This, the Board
admissions, his dental lacks the ring of truth. Accordingly, I do not credit it
47 In general, the purpose of a prejob conference is to anticipate, and
solve in advance, problems that may arise dunng the course of a
construction job.
48 Wetzel impressed me as being an extremely credible witness.
49 Leo Geis, it will be remembered, is the president of RMC.
GENERAL TEAMSTERS LOCAL NO. 126 277
held in Marshall & Haas, 133 NLRB 1144, 1146 "is [not] a
violation of Section 8(b)(4)(ii)(B)."
2. Health Center
The instructions given by John Murray and Harold Van
Gorder, respectively business representatives of respon-
dents Carpenters Union and Council, to Leander Olig, an
employee of Smith, the general contractor at the Health
Center project, to "honor" the picketing against RMC and
to "walk off the job" upon the start of such picketing were
so obviously violative of Section 8(b)(4)(i)(B) that further
discussion is unnecessary.
The incident involving Eugene McEvoy, a business
representative of respondent Laborers Union, and Leroy
Schneider, another employee of Smith, does require some
discussion. McEvoy's advice to Schneider as to how to
conduct himself in the event that picketing against RMC
began after he started to work was in two parts.
The first part consisted of McEvoy's statement that he
could not tell Schneider what to do. Had McEvoy stopped
at this point there would have been no violation of Section
8(b)(4)(B). Tampa Sand and Material Co., 132 NLRB 1564,
1566.
However, McEvoy went further and told Schneider
either that he, McEvoy, "knew what he would do," or that
Schneider, himself, knew "what to do." Regardless of
which statement McEvoy made, the effect is the same.
Both carried the implication that upon the appearance of
the pickets in support of the dispute between respondent
Teamsters Union and RMC Schneider was to stop working
for Smith. Howard H. Whitney, 167 NLRB 511. According-
ly, each constituted inducement and encouragement within
the meaning of Section 8(b)(4)(i)(B) of the Act.
As was the case with respect to the situation at the
Oakfield School, there is here also an absence of evidence
showing that the inducement offered to neutral employees
by representatives of respondents, Carpenters Union,
Council, and Laborers Union was effective. This being the
case, a finding that Section 8(b)(4)(ii)(B) of the Act was
also violated is not warranted.
3. The prejob conference
Relying on testimony given by F. W. Harvath, Hutter's
superintendent, that Donald Wetzel, secretary-treasurer of
respondent Teamsters Umon, added to his "you said that
and not me" statement the fillip "But you know what I
mean," the General Counsel argues that respondent
Teamsters Umon was threatening to picket Hutter, not
RMC, at Hutter's Badger project. I do not agree.
Wetzel's account of his remarks at the prejob conference
did not include the final utterance ascribed to him by
Harvath. In view of the candor which characterized
Wetzel's lengthy testimony at the trial, it is my opinion that
had he made the comment in question he would have
mentioned it while he was on the witness stand. His not
having done so leads me to find that Wetzel did not say
"But you know what I mean," to Hutter's representatives.
But even had Wetzel done so, there would have been no
basis for concluding that a threat was being made by
respondent Teamsters Union to picket Hutter, rather than
RMC. On November 18, the date on which the prejob
conference was held, respondent Teamsters Union had
already picketed at the Lee Beverage, Workshops, and
Gross Terminal construction sites. As I have found,
however, and as Harvath admitted knowing, picketing was
carried on only when RMC's trucks were on the premises. I
have also found that the picketing in all other respects
conformed to the criteria for lawful common sites
picketing enunciated in Moore Dry Dock Company, 92
NLRB 547, 549. In view of this, it would not have been
reasonable for anyone to assume , even had Wetzel uttered
the words attributed to him by Harvath, that he was
thereby threatening that respondent Teamsters Union
would not picket RMC, but would picket Hutter.
If any threat at all was involved in Wetzel 's statement at
the prejob conference , it was a threat that respondent
Teamsters Union would picket at Hutter 's construction site
when RMC's trucks were on the project, as was its right.
Wetzel's announcement that respondent Teamsters Union
would do this was "nothing more than a legitimate
expression [by respondent Teamsters Union] of [its]
intention to exercise its unquestioned right to picket
[RMC] at the neutral [employer 's site ] in the lawful
manner prescribed by the Board. Such statements do not
constitute threats within the meaning of Section 8 (b)(4) of
the Act." Estes Express Lines, Inc., 181 NLRB No. 12.
In sum, I conclude as follows respecting this branch of
the case:
1. Respondent Teamsters Union violated Section
8(b)(4)(i)(B) of the Act, but not Section 8 (b)(4)(ii)(B), by
appealing to Donald Lecker and Roy Schroeder, both
employed by Tiede, to refrain from working in the event
that respondent Teamsters Union picketed at the Oakfield
School construction project in support of its campaign to
drive RMC out of business.
2. Respondents Carpenters Union and Council each
violated Section 8(b)(4)(i)(B) of the Act, but not
8(b)(4)(ii)(B), by appealing to Leander Olig, an employee
of Smith, to refrain from working in the event that
respondent Teamsters Union picketed at the Health Center
construction project in support of its campaign to drive
RMC out of business.
3. Respondent Laborers Umon violated Section
8(b)(4)(i)(B) of the Act , but not Section 8 (b)(4)(ii)(B), by
appealing to Leroy Schneider, an employee of Smith, to
refrain from working in the event that respondent
Teamsters Umon picketed at the Health Center construc-
tion project in support of its campaign to drive RMC out
of business.
4. Respondent Teamsters Union did not violate Section
8(b)(4)(B) of the Act by informing Roy Schroeder, Tiede's
superintendent, that it would picket RMC at the Oakfield
School construction project.
5. Respondent Teamsters Union did not violate Section
8(b)(4)(B) of the Act by informing Merle Failen, a Flutter
official , that it would picket RMC at the Badger construc-
tion project.
In view of my foregoing conclusions , I shall recommend
that paragraph 20, insofar as it refers to a threat by
respondent Teamsters Union, paragraph 26, and the
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relating portions of paragraphs 27, 28, 29, and 30, of the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The violations of Section 8(b)(4)(i)(B) of the Act by
respondents Teamsters Union, Carpenters Umon, Council,
and Laborers Union, as set forth in section III, above,
occurring in connection with the operations of RMC,
Tiede, and Smith described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that respondent Teamsters Union, Car-
penters Union, Council, and Laborers Union have engaged
in unfair labor practices within the meaning of Section
8(b)(4)(i)(B) of the Act, my recommended Order will
require those respondents to cease and desist therefrom
and to take such affirmative action as will effectuate the
purposes of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. RMC is engaged in commerce within the meaning of
Section 2(6) of the Act.
2. Tiede, Smith, and Hutter are persons engaged in an
industry affecting commerce within the meaning of Section
8(b)(4) of the Act.
3. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
4. Respondents have not engaged, and are not engag-
ing, in a joint venture in furtherance of a campaign by
respondent Teamsters Union to drive RMC out of
business.
5. By inducing and encouraging individuals employed
by Tiede to engage in a strike or a refusal in the course of
their employment to perform any services, an object
thereof being to force or require Tiede to cease using,
handling, transporting, or otherwise dealing in products
supplied by RMC, and to cease doing business with RMC,
respondent Teamsters Union has engaged, and is engaging,
in unfair labor practices within the meaning of Section
8(b)(4)(i)(B) of the Act.
6. By inducing and encouraging an individual em-
ployed by Smith to engage in a strike or refusal in the
course of his employment to perform any services, an
object thereof being to force or require Smith to cease
using, handling, transporting, or otherwise dealing in
products supplied by RMC, and to cease doing business
with RMC, respondents Carpenters Union and Council
have engaged, and are engaging, in unfair labor practices
within the meaning of Section 8(b)(4)(i)(B) of the Act.
7. By inducing and encouraging an individual em-
ployed by Smith to engage in a strike or a refusal in the
course of his employment to perform any services, an
object thereof being to force or require Smith to cease
using handling, transporting or otherwise dealing in
products supplied by RMC, and to cease doing business
with RMC, respondent Laborers Union has engaged, and
is engaging, in unfair labor practices within the meaning of
Section 8(b)(4)(i)(B) of the Act.
8. Respondent Teamsters Union did not threaten,
coerce, or restrain Tiede or Hutter within the meaning of
Section 8(b)(4) of the Act.
9. Respondents Carpenters Union, Council, and La-
borers Union did not threaten, coerce, or restrain Smith
within the meaning of Section 8(b)(4) of the Act.
10. Respondent Teamsters Union did not engage in
unfair labor practices within the meaning of Section
8(b)(4)(B) of the Act by the manner in which it picketed at
the Lee Beverage, Workshops, Gross Terminal, and Health
Center construction sites.
11. Respondent Engineers Union did not engage in
unfair labor practices within the meaning of Section
8(b)(4)(B) of the Act by the manner in which it picketed at
the Health Center construction site.
12. Respondent Plumbers Umon and Laborers Union
did not engage in unfair labor practices by reason of the
activities of John Sharkey and Harold LaShay in connec-
tion with the erection of Workshops new building.
13. The unfair labor practices engaged in by respon-
dents Teamsters Union, Carpenters Union, Council, and
Laborers Union as set forth in Conclusions of Law 5, 6 and
7, above, affect commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]