Highway Truck Drivers and Helpers, Local 107

National Labor Relations Board - Board Decisions

Jul 17, 1962

137 N.L.R.B. 1330 (N.L.R.B. 1962)

1 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. By inducing and encouraging through the conduct as set forth in the section
above entitled , "B. The conclusions," for the proscribed object there described, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(b)(4)(i ) and (ii )(B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent violated Section 8(b)(4)(i) and ( ii)(B) of the
Act, it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
[Recommendations omitted from publication.]
Highway Truck Drivers and Helpers , Local 107, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America and Sterling Wire Products Company.
Case No. 4-CC-151. July 17, 1962
DECISION AND ORDER
On April 10, 1961, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent, the General Counsel, and Charging Party,
filed exceptions to the Intermediate Report together with supporting
briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the exceptions and briefs, and the entire record in the case, and
hereby adopts the Trial Examiner's findings,l conclusions, and rec-
ommendations, with the exceptions noted below.
The present controversy had its genesis in a 1958 labor dispute be-
tween Sterling and Respondent concerning Sterling's three truck-
drivers. Sterling had been using these drivers to perform its delivery
services on three trucks which it leased from the Hertz Corporation
for that purpose. In order to settle the 1958 dispute, an arrangement
was made whereby Sterling became a "house concern" of Fees, Inc., a
' In adopting the Trial Examiner 's recommendation we do not rely upon his findings
with respect to Sterling ' s motivation in contracting out its trucking operations , first to
Fees, and later to common carriers . Plumbers Union of Nassau County, Local 4 57, United
Association of Journeymen and d . pprenticcs of the Plumbing and Pipefttintt Industry of
the United States and Canada, AFL -CIO (Jerry Bady, d /b/a Bomat Plumbing and Heat-
ing), 131 NLRB 1243, enfd . 299 F . 2d 497 (C.A. 2). We shall therefore deny the motion
to reopen the record to present further evidence with respect to motivation filed by the
Charging Party. Our decision is based on the fact that the dispute here was, as in
1958, over the tenure of employment of Sterling 's own employees.
137 NLRB No. 150.
r
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107 1331
contract carrier or hauler. Sterling subcontracted its delivery work
to Fees under a 2-year contract and transferred its three drivers to
Fees' payroll. Fees had a collective-bargaining agreement with
Respondent.
The three drivers continued, as before, to perform Sterling's deliv-
eries. Fees continued to use two of the Hertz trucks which were
previously used by Sterling and replaced the third Hertz truck with
one of its own. The Sterling-Hertz lease arrangement for the two
trucks was continued until Fees could get an ICC license required for
those out-of-town operations which Sterling's delivery operations
necessitated. During the period here involved, Sterling paid Fees an
amount equivalent to the wages of the three drivers, plus a 10-percent
override, plus a specified sum for the use of the one truck which Fees
furnished for Sterling's work.
During the entire 2-year period of the contract relationship between
Sterling and Fees the trucks driven by the transferred drivers were
based at Sterling's plant. Sterling's deliveries were posted on a
blackboard in Sterling's shipping room and the drivers agreed among
themselves on runs they would take on the basis of their seniority.
Drivers making late deliveries were notified of the next day's schedule
by Sterling's shipping foreman. Sterling regulated their deliveries,
directing the drivers as to what priorities were to be given its various
orders. Sterling also directed the drivers to use the Pennsylvania
Turnpike for special out-of-town deliveries, and reimbursed the
drivers for the tolls. The driver timecards were kept next to the
timecards of other Sterling employees at Sterling's plant and it was
here that the drivers reported and checked out. The reports made
by drivers showing the deliveries made by them were turned in to
Sterling.
The only times the three drivers saw Fees was once a week when they
picked up their paychecks. Even their seniority arrangement differed
from that of the other drivers employed by Fees. The Sterling
drivers were kept on a separate seniority list applicable only to the
Sterling job and were placed on the bottom of Fees' seniority list for
other jobs. When Sterling had no jobs for them the Sterling drivers
inquired at Fees whether other jobs were available and, if not, they
registered at the union hall for available employment.
In June 1960, toward the end of the 2-year Sterling-Fees contract
period, and after Fees had obtained the necessary ICC licenses, the
Hertz lease for the two trucks was transferred from Sterling to Fees
and Fees undertook payment of the lease rentals. Immediately there-
after Sterling began to subcontract some of its delivery work to other
common carriers and in August 1960 notified Fees that upon termina-
tion of their contract on November 30, 1960, all arrangements with
Fees were terminated.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fees tried in vain to persuade Sterling to renew their contract.
When Sterling asked what would happen if Fees had to discharge the
three Sterling drivers because of the contract termination, Fees indi-
cated that it would lead to picketing of Sterling. Sterling responded
that it was willing to let the chips fall where they might.
On November 30, the day the contract terminated, Fees told the
three drivers that it could no longer use their services except for 1
day's work on December 1. Respondent, notified of the contract
termination and the discharge of the three drivers, immediately asked
Sterling to put the drivers back to work. Sterling refused and the
three drivers began to picket Sterling on December 2. The picketing
continued until December 16 when it was enjoined by court order.
No request was made of Fees to reemploy the drivers and no pres-
sure was exerted against Fees directly or indirectly to attain that ob-
jective. On the basis of the foregoing evidence we find, contrary to
the Trial Examiner, that Sterling was at least a co-employer of its
three drivers who had been transferred to Fees' payroll. The Board,
with court approval, has consistently applied the familiar and well-
settled "right-of-control" test to determine the existence of an employ-
ment relationship? Our dissenting colleagues do not, apparently,
challenge this principle.
Applying this principle, we cannot agree that the formal transfer
of the three drivers to Fees' payroll, the fact that they received a Fees'
paycheck, and that they received their notice of termination from Fees
is dispositive of the situation. Indeed, resolution of the issue upon
this limited basis would obviate the need or relevance of a "right-of-
control" test. The undisputed fact remains that with respect to the
performance of their duties, their assignments, their work station, and
even with respect to two of the three trucks they drove, these drivers
were wholly under the control and direction of Sterling. Moreover,
their seniority, itself a vital term and condition of employment, was
bound up with their interests at Sterling and not with their interests at
Fees. And finally, the very term of their employment at Fees, coin-
ciding almost to the day with the performance of their duties at Ster-
ling, emphasizes that their basic employment tenure was under the
control of Sterling to as great a degree, if not to a greater degree, than
it was under the control of Fees.
We cannot, therefore, as do our dissenting colleagues, equate the
relationship between Sterling and the three drivers here involved with
the relationship which normally obtains between a shipper and a con-
tract hauler. By the same token, the fact that Fees was willing to
retain the three drivers for 1 day after the termination of its contract
3 West Texas Utilroties Company, 108 NLRB 407, 413-414, enfd . 218 F. 2d 824 (C A 5),
cert. denied 349 U.S . 953, Hudson Pulp & Paper Corporation , 121 NLRB 1446 , 1450-1451,
enfd in relevant part 273 F . 2d 660 (CA. 5). Cf NL,RB. v Nu- Car Carries, Inc,
189 F. 2d 756 ( CA. 3), cert. denied 342 U S 919 , and cases there cited
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107 1333
with Sterling and that Fees may have on infrequent occasions utilized
their services when Sterling had no work for them was merely a pe-
ripheral circumstance which did not alter the underlying employment
relationship with Sterling which persisted throughout the 2-year con-
tract term and was itself a continuation of an employment relationship
which long antedated the Sterling-Fees arrangement.
We further find it significant that the parties themselves regarded
Sterling as a primary employer. Thus when Sterling notified Fees of
the contract termination, both employers expected any action by the
Respondent to be directed at Sterling. When the contract terminated,
Fees promptly discharged the drivers because their jobs had been
eliminated, an action inconsistent with the concept that they were
members of Fees' regular work force. And finally, the Respondent
never made any demand nor did it take any action against Fees, but
instead directed its efforts solely to obtaining reemployment for the
drivers with Sterling. Thus the action of all of the parties clearly
indicates that none of them regarded Sterling as a neutral secondary
employer.
Unlike our dissenting colleagues, therefore, we cannot agree that
Fees was the sole primary employer involved in the dispute. To us
the action of the Respondent in picketing Sterling was primary
activity in support of an effort to obtain reemployment for the drivers
who were employees of Sterling. We therefore find no merit in the
charges of violation of Section 8(b) (4) (i) and (ii) (B) and hereby
dismiss the complaint in its entirety .3
[The Board dismissed the complaint.]
MEMBERS RODGERS and LEEDOM, dissenting :
In our view, the record clearly establishes that the Respondent en-
gaged in conduct violative of Section 8(b) (4) (i) and (ii) (B) of the
Act.
The material facts are as follows : On or about November 20, 1958,
Sterling Wire Products Company advised its three drivers, who were
employed at its Philadelphia, Pennsylvania, plant, that they were
discharged. This was the result of Sterling's decision to have its
deliveries handled by common carriers, including Fees, Inc. The three
drivers were thereafter employed by Fees, and were covered by the
terms of the collective-bargaining agreement between the Respondent
and a multiemployer association of motor carriers, to which Fees
belonged. Fees assigned these drivers primarily to the work of pick-
ing up and delivering Sterling's products, but the drivers also deliv-
3In dismissing the complaint herein, Member Fanning finds it unnecessary to decide
whether a coemployer relationship existed between Sterling and Fees. In his opinion, the
Respondent ' s strike against Sterling resulted from its dispute with Sterling over the re-
employment of Sterling 's former drivers , and hence its conduct in this case constituted
lawful primary activity
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ered products of other customers of Fees. Other drivers employed by
Fees also delivered Sterling's products on occasion.
Some 2 years later, on or about December 1, 1960, Fees lost its busi-
ness with Sterling. Fees thereafter laid off the three drivers for lack
of work. It was then that Respondent picketed the plant of Sterling,
causing an interruption of deliveries by common carriers with which
Sterling was doing business.
On the foregoing facts, the majority is finding that notwithstanding
Sterling's termination of the three drivers in 1958, their employment
by Fees, their coverage under Fees' contract with the Respondent
Union, and the exercise by Fees with respect to them of all the normal
functions of an employer, Sterling nevertheless remained their em-
ployer-albeit, according to Chairman McCulloch and Member
Brown-now a co-employer with Fees. Seemingly, the majority
premises this holding upon their conclusionary finding that Sterling
"retained effective control" over the drivers after their employment by
Fees. This finding is not warranted by the record. Admittedly, cer-
tain instructions were given to Fees' drivers by Sterling personnel,
but such instructions were only routine directions as to where Ster-
ling's products were to be delivered and amounted to no more than
what any shipper would give his carrier. Contrary to the majority's
finding, the record clearly establishes that at all times Fees exercised
sole control over the drivers in question-control exactly the same as
that which Fees exercised over all of its other employees. Fees hired
the three drivers. They were not merely transferred to Fees' payroll as
our colleagues euphemistically state. Fees also paid them, and Fees
discharged them. We would find, as the Trial Examiner did, that the
arrangement between Fees and Sterling was practically the same as
those which Fees had with other shippers and that there was no
employer-employee relationship between the three drivers and
Sterling.'
4In passing upon the relationship between the drivers and Fees, the majority has mini-
mized the fact that while employed by Fees these drivers performed trucking work for
others of Fees' customers we would note that on December 1, after Sterling ' s termina-
tion of its contract with Fees, Fees assigned these drivers to hauling for other accounts.
The fact that the drivers were then laid off because Fees having lost the Sterling account
had insufficient work for them , is not , as the majority claims, inconsistent with our hold-
ing that the drivers were employees of Fees and Fees only. Furthermore , we take issue
with the majority ' s assertion that "the parties themselves regarded Sterling as a primary
employer" To the contrary , as we pointed out above , when the 1958 dispute was settled,
everyone, including the Union, agreed to the drivers' employment by Fees and their cover-
age under the bargaining agreement between the Union and Fees The majority ' s refer-
ence to these Fees ' drivers having their own seniority list lends no weight to their con-
tention that these drivers were employees of Sterling Sterling was a "house concern"
of Fees, and it was pursuant to a provision pertaining to "house concerns" contained in
Fees ' bargaining agreement with the Union that this separate seniority list was main-
tained . Presumably , all other of Fees' drivers who were assigned to "house concerns"
similarly had their own seniority list . We would also note here that contrary to the
position taken by the majority , under this "house concern " contract provision, the Union
itself considered the drivers coming thereunder employees of the hauler ( Fees ) and only
as "formerly employed" by the house concern (Sterlin g ). See footnote 7 of the Inter-
mediate Report.
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107 1335
In addition, although the majority asserts that they do not rely upon
the Trial Examiner's findings respecting Sterling's motivation in con-
tracting first with Fees and later with other carriers, inferentially they
seem to be finding that the "dispute" arising in 1958 over these three
drivers continued over the years. Obviously, this is not the case. That
"dispute" was settled, presumably on a permanent basis, when Sterling
contracted with Fees, and when Fees agreed to employ the drivers
thereby bringing them under the coverage of Fees' bargaining agree-
ment with the Respondent Union. The settlement, moreover, was con-
sistent with the provisions of the existing contract between Fees and
the Respondent Union and was approved by the Respondent Union.
Surely the fact that the employment of the affected drivers resulting
from the settlement agreement lasted only 2 years affords no basis
for disregarding the finality intended by the settlement in evaluating
the Union's conduct herein.
The instant dispute arose when Fees, for lack of work, laid off the
three drivers. Concededly, this lack of work resulted from Sterling's
cancellation of its shipping agreement with Fees. The dispute was,
nevertheless, with primary employer Fees over Fees' layoff of its
employees. Consequently, the Union had no right to engage in
secondary picketing of Sterling in order to pressure Sterling into
giving up its use of other carriers and returning to the use of Fees.-'
The contrary view of our colleagues must be regarded as a holding that
an enterprise may not sever a business relationship with another with-
out being subject to picketing by that other's employees. We cannot
subscribe to that proposition as a sound principle of law.
6 New Jersey Guards Union ( Otis Elevator Company ), 124 NLRB 1097, 1100; Drives
and Chauffeurs Local Umon No. 816, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America (Montgomery Word and Co ., Incorporated), 127
NLRB 1059, entd. 292 F . 2d 329 (C.A. 2).
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case, Case No. 4-CC-151, brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a
charge filed December 5, 1960, by Sterling Wire Products Company, herein called
Sterling, against Highway Truck Drivers and Helpers, Local 107, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called Respondent, was heard by Trial Examiner James F. Foley in Philadelphia,
Pennsylvania, on January,18 and 19, 1961, on a complaint of the General Counsel
issued December 22, 1960, and an answer of Respondent filed January 3, 1961.
The complaint alleges, and Respondent's answer denies, that Respondent by
picketing, and appeals, requests orders, and instructions, induced and encouraged
employees of Sterling, certain common carriers, and other persons doing business with
Sterling, to engage in a strike or refusal to transport or otherwise handle goods or
perform services in the course of employment, and threatened, coerced, and restrained
Sterling, the common carriers and the other persons, with the object of forcing
Sterling to cease doing business with the common carriers and the other persons, in
violation of Section 8(b) (4) (i) and (u) (B) of the Act.
Respondent, General Counsel, and Sterling, the Charging Party, were represented at
the hearing, and all parties were afforded an opportunity to be heard, introduce
evidence, make oral argument, and file briefs. Counsel for General Counsel and
Respondent filed briefs after the close of the hearing.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE CHARGING PARTY
The complaint alleges, and Respondent in its answer admits, that Sterling, a
New Jersey corporation with its principal office and place of business in Philadelphia,
Pennsylvania , is engaged in the manufacture , sale, and distribution of springs for
furniture and bedding, that in the year ending December 1960 it sold and distributed
products with a value in excess of $500 ;000, and that it shipped products with a
value in excess of $50 ,000 directly from its plant in Philadelphia to points in
States other than the State of Pennsylvania . I find that Sterling is engaged in
commerce within the meaning of Section 2(6) of the Act, and that assertion of
jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Evidentiary findings
On December 2, 1960, about 8:30 or 9 a.m., Respondent began picketing Sterling.
The pickets carried picket signs with the legend that Sterling Wire Products Com-
pany was unfair to Highway Truck Drivers and Helpers, Local 107. The picketing
continued until December 16, 1960.1 During the picketing, drivers of other em-
ployers or persons refused to cross the picket line. They were drivers for Pride
Lumber Co. and common carriers Motor Freight Express, Inc.; Tose, Inc.; Roy's
Hauling Service; and M & M Transportation Company? Sterling's employees crossed
the picket line.
On December 2, 1960, when the driver of a vehicle of M & M Transportation
Company asked who was on strike, Franklin Johnson, one of the pickets, replied
that it was Sterling Wire Products. On December 6, 1960, a truck of the Pride
Lumber Co., Bayonne, New Jersey, was driven to the picket line. The driver refused
to drive across it. Edward J. Waligore, plant manager of Sterling, talked to the presi-
dent of Pride Lumber Co. by long-distance telephone , and then asked the driver to
drive the truck onto the premises of Sterling. The driver replied that the truck
would cross the picket line only if driven across it by Waligore. Later, Leslie, one
of the pickets, told Waligore that the truck could be driven across the picket line, but
that the pickets would not be responsible for what might happen to it. After another
telephone conversation between the driver and the president of Pride Lumber Co.,
the driver drove the truck back to New Jersey.3
The question is whether the picketing and other conduct of Respondent constitutes
a violation of Section 8(.b) (4) (i) and (ii) (B) of the Act. To reach a determination
in this proceeding, it is necessary to consider a series of events involving Sterling,
Sterling's former drivers, Respondent, and Fees, Inc., herein called Fees, beginning
sometime around the middle of November 195,8 and culminating on or about Decem-
ber 4, 1960. Joseph A. Walker, Sr., president and sole owner of Fees, who was
General Counsel's witness , and Harry Penrose, business agent of Respondent, and
Nathaniel Lott, Sterling's former driver, witnesses for the Respondent, testified as to
these events. Their testimony is not in conflict, and is, therefore, undisputed or at
least unrebutted. This testimony follows.
In November 1958, all hourly employees of Sterling were represented by United
Mine Workers, District 50, herein called United Mine Workers. The United Mine
Workers had a plantwide agreement with Sterling. Shortly before November 20,
i The picketing was enjoined by temporary restraining and injunction orders of the
United States District Court for the Eastern District of Pennsylvania. Bennet F
Schauffler v Highway Truck Drivers & Helpers, Local 107, IBT (Sterling Wire Products
Co ), 47 LRRM 2534 (D C. E. Pa.).
2 These common carriers had collective-bargaining relations with Respondent as mem-
bers of Motor Transport Labor Relations, Inc. The latter bargained with Respondent on
their behalf The same was true of the other carriers that did business with Sterling,
namely, Novick Transfer Co. , Modern Transfer Co., Inc ; Branch Motor Express Co :
Eastern Freight Ways, Inc. ; Arrow Carrier Corporation ; Needes Express Inc. ; and
Needham's Motor Service
3 The evidence on which the evidentiary findings are premised consists of the testimony
of Waligore, Sterling's plant manager, and James William Toolan, assistant foreman of
Sterling . This evidence was unrebutted.
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107 1337
1958, at a union meeting, United Mine Workers permitted Sterling's three truck-
drivers, Edward Leslie, Nathaniel Lott, and Francis Johnson, to resign from United
Mine Workers to seek representation by Respondent. Lott had been employed by
Sterling since August 1956. Leslie had more seniority and Johnson had less. They
became members of Respondent. On or about November 20, 1958, Respondent, by
letter, gave notice to Sterling that it represented the three drivers, and requested that
it sign the collective-bargaining agreement, the Teamsters health and welfare fund
agreement, and the Teamsters pension fund agreement enclosed in the letter. On re-
ceipt of the notice and the request to sign ,the agreements, Sterling sent a telegram to
each of the three drivers in which it stated that it was discontinuing its delivery serv-
ice, and, as a result, no longer needed the services of the drivers. This telegram was
a notice of discharge.
The three drivers went to Respondent and talked to Business Agents Hession and
Penrose. Sometime in the latter part of November 1958, either Penrose or Hessian
told them to place a picket line at Sterling. The drivers did not picket Sterling im-
mediately as the United Mine Workers was picketing it. At the conclusion of the
United Mine Workers' picketing, somewhere between December 1 and 4, 1958, the
three drivers picketed Sterling. They carried picket signs. They picketed only 6
hours. A representative from Respondent came to the picket line and informed them
that the dispute had been settled.
On the day of the picketing, Walker, the president and sole owner of Fees, a con-
tract carrier or hauler, was asked by Plant Manager Merlin H. Becher of Sterling to
meet with him at his office. He did. In doing so, he had to cross the picket line.
Becher told Walker that the United Mine Workers, with which it had a plantwide
bargaining contract, had permitted Sterling's drivers to resign from that Union and
seek representation elsewhere, that they had joined Respondent, and the latter was
seeking recognition as their bargaining representative. He also stated to Walker that
Sterling did not wish to sign a collective-bargaining contract with another union.
Walker suggested to Becher and Auge, the treasurer of Sterling, who was also present,
that Fees take over the delivery operations of Sterling. He stated to them that he
could put the three drivers on Fees' payroll, and that they would be covered by
Fees' collective-bargaining contract with Respondent .4 Becher adopted these sug-
gestions. On this same day, which was the day of the picketing, Walker called
Hession and Penrose, business agent of Respondent. He explained the situation to
Hession. He told Hession that it was a chance for him to expand, and that by his
taking the men on his payroll they would have full protection under Fees' contract
with Respondent. Respondent agreed to the arrangement between Fees and Sterling,
and, as stated above, authorized the removal of the picket line. An oral agree-
ment between Sterling and Fees was made on this date, which was a day between
December 1 and 4, 1958, by which the three drivers were placed on Fees' payroll and
all services pursuant to compensating them for services rendered was to be handled by
Fees. The drivers were placed on Fees' payroll as of December 1, 1958, pursuant to
this agreement. Fees compensated them, and otherwise accorded them employee
rights, in accordance with its collective-bargaining contract with Respondent.
At the time of the strike in December 1958, Sterling delivered locally in Phila-
delphia and within an area of a radius of 250 miles, including Arlington, Virginia;
Washington, D.C.; Baltimore, Maryland; New Jersey, New York, and part of Penn-
sylvania beyond Philadelphia. Its products were carried by common carrier to
destinations other than those described. Sterling's deliveries had been made in three
trucks rented from The Hertz Corporation. Two of the trucks were GMC van-type
trucks with 20-foot bodies and power-lift gates covered by a contract of lease with
option to buy between Sterling and Hertz. The third truck was not covered by a
formal written contract. The three trucks were kept on Sterlings's premises.
A written agreement dated December 1, 1958, was executed between Sterling and
Fees by which Fees was to furnish a truck for local deliveries at a combination rate
for the truck and the services of a driver. Sterling returned the third truck to Hertz
upon the execution of this contract. Fees had the chassis of one of its trucks
lengthened to hold a 20-foot van type body at a cost of $800, placed on it a,20-foot
van type body, and furnished this vehicle to replace the vehicle Sterling returned to
Hertz. Fees' vehicle carried the identification of Fees on the doors of the cab. The
Hertz trucks carried the name Sterling Wire Products, Inc. on both sides of the van
bodies in letters running the length of the van bodies and about 8 feet high.
4 Fees, like the common carriers that did business with Sterling, was a member of
Motor Transport Relations, Inc. This association also bargained with Respondent on
behalf of Fees.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fees had authority from the Pennsylvania Public Utilities Commission to make
the local deliveries that were covered by the written agreement of December 1, 1958.
However, it had to obtain a certificate of public convenience and necessity from the
Interstate Commerce Commission to make the deliveries outside Pennsylvania that
Sterling had been making prior to the discharge of the drivers in the latter part of
November 1958. So it was agreed that although all the three drivers were to be
carried on Fees' payroll, no attempt would be made to assign to Fees, or ter-
minate, the lease agreement between Sterling and Hertz for the two GMC van-type
trucks, or any attempt made by Fees to replace these vehicles, until Fees was certi-
fied by the ICC to make the out-of-State runs. Sterling and Fees agreed that Fees
would receive for the time of the drivers utilized in operating these trucks the com-
pensation Fees paid to them under its contract with Respondent plus a 10-percent
override.
A meeting was held at Sterling's office on the day following the initial agreement
between Sterling and Fees. This was also the day following the day of the picketing.
As stated above, it was somewhere between December 1 and 4, 1958. This meet-
ing was attended by Becher, Walker, and the three drivers. Becher told the drivers
that Fees had taken over the hauling contract, that they would be on Fees' payroll,
but would continue to do work for Sterling. Sterling's local deliveries and those
within a radius of 250 miles were made pursuant to the agreements without incident
until December 1959.
In December 1959, Fees was certificated by the ICC to haul for Sterling beyond
the State of Pennsylvania to Arlington, Virginia; Washington, D.C.; Baltimore, Mary-
land, and points in New Jersey and New York. These were the destinations to which
Sterling had made deliveries.5 Sterling and Fees executed a contract dated Decem-
ber 1, 1959, to cover Fees' interstate hauling for Sterling within the area included
in the authority Fees received from the ICC by the certificate. The contract pro-
vided that Fees was to be paid for the services of two trucks and drivers in accord-
ance with e schedule of rates attached to the contract. The schedule was to be the
one filed by Fees with the Interstate Commerce Commission. No schedule was ever
attached to the contract. The contract of lease with an option to buy between Sterling
and Hertz for the two trucks doing the interstate hauling was not assigned to Fees
until June 1960. So until that time, and notwithstanding the contract between Fees
and Sterling of December 1, 1959, Fees received from Sterling for deliveries by the
two Hertz trucks only the wages and other compensation paid to the drivers for de-
liveries in such trucks plus a 10,percent override, as stated above.
When the contract of lease between Sterling and Hertz for the two trucks was as-
signed to Fees in June 1960, compensation paid to Fees by Sterling for deliveries made
in the two Hertz trucks was presumably based on the rates contained in the schedule
Fees filed with the ICC. About June 4960, Sterling commenced giving some of
the deliveries, ordinarily made in the two trucks to points outside Pennsylvania, to
common carriers. Fees brought this to Sterling's attention. On August 25, 1960,
Sterling gave notice, pursuant to its December 1, 1958, and December 1, 1959, con-
tracts, that it was terminating such contracts effective the end of November 30, 1960.
It also gave Fees notice that it was terminating all oral agreements as of November 30,
1960.
Walker of Fees and a troubleshooter from the office of the parent company, No-
Sag Spring Company, met before the termination date. Walker negotiated with the
objective of persuading No-Sag and Sterling to withdraw the notice of termination.
A few days before the termination date of November 30, 1960, the troubleshooter
from No-Sag in a meeting with Walker, attended by Waligore, informed Walker
that the termination would become effective. He asked Walker what he thought
would happen. Walker replied that it was his opinion Sterling would be picketed.
The troubleshooter said that it would happen then or 3 months from then so
the thing to do was to let the chips fall where they may. He also asked Walker if it
was necessary for him to inform Respondent right away. Walker said it was.
Walker informed the three drivers on November 30 that Sterling had terminated
its contract with Fees, and, therefore, he would not be able to employ them any
longer. He said he would try to assign them to work when he had it, if they were
available. He was able to assign them to hauling for other house accounts on
December 1, 1960. Walker informed Hession or Penrose, business agents of Re-
spondent, on December 1, of the termination by Sterling of its agreements with
s On or about June 1, 1959, No-Sag Spring Company purchased Sterling It moved its
New Jersey operation to Sterling in Philadelphia Waligore, who was plant manager at
this New Jersey plant, became assistant plant manager of Sterling on or about June 1,
1959. He became expediter of all No-Sag products on April 1, 1960, and plant manager
of Sterling on August 1, 1960.
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107 1339
Fees, and Fees laying off the three drivers except for work assignments it had for
them on a day-to-day basis. Hession or Penrose asked Walker to send the drivers
to the Respondent the next morning. The drivers reported to Respondent on Decem-
ber 2, 1960. Hession talked to Waligore on December 1 or 2, 1960, and asked him
to put the drivers back on the work they "had done prior to the dispute." The
record does not disclose Waligore's reply, if any. It is clear, however, that he did
not agree to reengage them. On December 2, 1960, Penrose sent the three drivers
to Sterling to picket. As found above, the picketing by Respondent under scrutiny
started on December 2, 1960.
Respondent made no demands on Fees to reemploy the drivers, arrange for their
employment elsewhere, or to take any other action with respect to them. As found
above, either Business Agent Hession or Penrose asked Walker to have them report
to the Respondent. Respondent neither initiated nor engaged in any union activity
at Fees' premises or in connection with Fees' operations.6
Respondent's defense is that it has a primary dispute with Sterling and the picket-
ing was primary activity. In contends that the drivers were in fact employees of
Sterling at the time of the picketing and the picketing was in aid of their efforts to
regain their employment. Alternatively, it contends that the picketing was primary
picketing to force Sterling to reemploy former employees in drivers' jobs they held
prior to their discharge in November 1958. The evidence relating to Respondent's
alternative position has been discussed. The following undisputed evidence relates
to the issue whether the drivers were employees of Sterling at the time of the picket-
ing in December 1960.
Fees had 23 trucks and all were furnished to shippers under practically the same
arrangement Fees had with Sterling under the written contracts dated December 1,
'1958, and December 1, 1959. The arrangement with Sterling differed in the re-
spects that the trucks furnished to some shippers were based at Fees' terminal, and a
large shipper's needs for trucks varied from day to day with the result the number
shuttled to him varied from day to day. Article 5, section 6, of Fees' collective-
bargaining contract with Respondent, in effect during the period Fees hauled for
Sterling, recognized the practice of a shipper like Sterling (referred to as a house
concern) which made its own deliveries to discontinue this method of operation, and
engage a hauler, like Fees, to perform it. This section of the contract provided
that the operator (Fees in this case) place on its payroll the drivers who had been
driving for the house concern It also provided that these drivers had seniority
on work of the house concern as if actually employed by it, and that their seniority
dated from the commencement of employment with it when it made its own
deliveries. In the changeover, the seniority they had acquired as employees of
the house concern was not to be disturbed. Sterling agreed to this practice. As
previously stated, Leslie had the most seniority, and Lott's and Johnson's followed
in that order.?
The drivers were paid every Friday by Fees at Fees' terminal. Customarily, one
of the three drivers would go to Fees for the checks. Until June 1, 1959, this was
the only time that a driver or drivers would come to Fees other than the times a
driver brought the truck Fees furnished to Sterling to the Fees' terminal to be
"gassed" up. All bookkeeping and other office work attendant on the payment of
wages and other compensation to the three drivers was done by Fees. Each day,
the drivers would complete time reports, at the end of each delivery, showing the
completion of the deliveries. These time reports were turned in each evening to
Sterling's shipping foreman. This time was reported the next day to Fees' office.
When one of the drivers was ill or otherwise unavailable for work, Fees would send a
replacement.
When Sterling did not have work for the drivers, they would be notified by
Sterling in the evening when they returned to the plant. They would communicate
Olt appears from the record that after November 30, 1960, Sterling's out-of-State de-
liveries were made by the over-the-road service of the common carriers, and its local
deliveries were made by the local pickup and delivery service of the common carriers.
7 This section of the contract also provided that if the house concern entered into an
agreement with another operator, the drivers taken over from the house concern by the
first hauler should enjoy the same status as employees with the new hauler as they en-
joyed with the first hauler. There is no evidence that Sterling agreed with this latter
provision In this section, Respondent considered the drivers placed on the payroll of
the hauler upon the latter's taking over of the delivery service formerly done by the
house concern itself to be employees of the hauler and not of the house concern. The
words "formerly employed" in reference to these drivers which are contained in this
section are significant.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Fees to see whether it had other work for them to do the following day. If
Fees had work, they would report to Fees or wherever Fees instructed them to report.
If Fees had no work, they would report to Respondent's hiring hall. When doing
work for Fees other than at Sterling, the drivers were at the bottom of the seniority
list of all Fees' employees as of December 1, 1958, the day they were placed on
Fees' payroll. When the drivers had been on Sterling's payroll, they were employed
on jobs in the plant during the times their services as drivers were not needed.
Sterling placed on a blackboard in its shipping room the deliveries for the follow-
ing day. The drivers would see them when they returned to Sterling's plant each
evening. If a driver had a late delivery, he was called by the shipping foreman and
apprised of the orders to be delivered and their destinations. The drivers agreed
among themselves on the runs they would take. The collective-bargaining contract
provided higher rates for the longer runs. Seniority determined who received the
more lucrative runs.
The drivers selected the routes since they best knew them. However, if a particular
order had to be delivered quickly, Sterling would tell the driver what priority to give
the order, and the driver would follow the instruction. For local deliveries, the
Pennsylvania Turnpike was used. Ordinarily, the turnpike would not be used for
deliveries to Baltimore, Washington, or Arlington. However, Sterling at times would
instruct the drivers to take the turnpike for these deliveries. Sterling would reimburse
the drivers on their producing the receipts.
Each driver arranged the cargo in the truck he was driving in accordance with the
schedule of deliveries determined by him. In the case of a priority order, he would
arrange the cargo to give effect to the priority order. The drivers kept logbooks.
They were required by ICC. Originally, the book for the one truck only was turned
in to Fees. The books for the other two trucks were handed in to Fees after either
the execution of the December 1, 1959, contract, or the assignment of the rental
lease in June 1960. The accident reports for Fees' truck were handed in to Fees.
The accident reports for the trucks leased from Hertz were handed in to Hertz both
when Sterling was the lessee and when Fees was the lessee.
Each of the drivers had a timecard in the rack next to the timeclock at Sterling's
plant, and had it punched each morning on arrival and on each evening on departure.
Sterling's shipping foreman and Waligore would reprimand the drivers at times.
They would tell the drivers on occasion that they could have them disciplined or
discharged by Fees. Fees was asked only once to discipline a driver, but the request
was made 4 or 5 months after the infraction. Fees took no action. The final deci-
sion, however, to hire or fire was left to Fees.
B. Analysis and concluding findings
The business of Fees, consists of furnishing trucks and drivers to shippers for the
handling of their deliveries. The trucks and drivers are for the exclusive use of the
particular shipper during the time they are assigned to it. The nature of Fees' busi-
ness brings about a loose employer-employee relationship between it and the drivers
it assigns to shippers, as the drivers begin and end work at the shipper's premises, and
receive from the shippers the orders they are to deliver and instructions with respect
to their delivery. In some instances, the trucks are based on the shipper's premises.
However, the drivers are still the employees of Fees. At the time of the December
1960 picketing, Fees' business relationship with Sterling was no different than the
relationships Fees had with the other shippers with which it did business There
could be a variation in that the vehicles assigned to certain shippers were based
at Fees' terminal , while the trucks assigned to Sterling were based at the premises
of Sterling. Also, Fees had an arrangement with a shipper whereby the numbers of
trucks assigned to the shipper varied with the volume of deliveries on a day-by-day
basis. However, these variations were minor, and do not show any substantial dif-
ference between the arrangement Fees had with Sterling and its arrangements with
the other shippers.
For this reason, and from a consideration of the other evidentiary findings I have
made above with respect to the nature of the handling of Sterling's deliveries by Fees
from December 1958 to November 30, 1960, I find that the drivers were employed by
Fees at the time of the picketing in December 1960. Therefore, the picketing was
not, as Respondent contends , in aid of its efforts in a primary dispute between Sterling
and Respondent acting on behalf of Sterling's employees.
Section 8(b)(4), subsections (i) and (ii), of the Act gives expression to the
"dual congressional objectives of preserving the right of labor organizations to bring
pressure to bear on offending employers in primary labor disputes and of shielding
HIGHWAY TRUCK DRIVERS AND HELPERS, LOCAL 107 1341
unoffending employers and others from pressures in controversies not their owns
According to General Counsel, Fees and Respondent are the primary 9 disputants,
Sterling and the common carriers that appeared at Sterling's premises during the
December 1960 picketing are neutral or unoffending employers, and Respondent
brought pressure on Sterling and the carriers in the dispute it was having with Fees.
If this contention is true, there is a violation of Section 8(b) (4) (i) and (ii) (B) by
the picketing and other conduct of Respondent at the premises of Sterling.10
When Sterling terminated its contracts with Fees effective November 30, 1960, Fees
had no work for the drivers except what was available on a day-by-day basis, since
the employment of the three drivers by Fees depended on the hauling Fees did for
Sterling. Walters of Fees so informed the drivers on November 30, 1960, and at this
time told them they were laid off as employees on a permanent assignment. He as-
signed them on November 30 to a day's employment on December 1, 1960, that he
happened to have available. Walters also called Respondent on December 1, 1960,
and informed Business Agents Hession or Penrose of the termination of the contracts
Fees had with Sterling and that he would have to lay off the drivers. Hession or
Penrose asked Walters to have the drivers report to Respondent the next morning.
On December 1 or 2, 1960, Hession called Sterling and talked to Waligore, the plant
superintendent. He asked him to place the drivers back on the work they were doing
prior to the time they were discharged in November 1958. Waligore did not comply
with this request On December 2, 1960, Penrose, the other business agent of
Respondent, sent the three drivers to picket Sterling's premises The three drivers,
and possibly another picket, picketed Sterling's premises the entire period of each
working day from December 2 to 16, 1960, until restrained by the United States
district court. The picketing was not limited to the times when vehicles of common
carriers or other persons appeared at Sterling's premises to make pickups or deliveries
The picket signs bore the legend that Sterling was unfair to Respondent. On Decem-
ber 2, 1960, Franklin Johnson, Sterling's former driver, and one of the pickets,
answered the question of an M & M Transportation Company driver as to who was on
strike, by the reply, "Sterling Wire Products."
Respondent made no demands on Fees to reemploy the drivers, to make arrange-
ments for their employment elsewhere, or to take any other course of action with
respect to them. Respondent only requested Fees to send the drivers to it Respond-
ent's collective-bargaining contracts disclose its recognition of a practice by shippers
of assigning delivery work they had been handling to contract haulers. It also dis-
closes Respondent's policy that on such assignments the drivers who had been
employed by the shippers were to be placed on the payrolls of the haulers, and should
the shippers change haulers these drivers should become the employees of the new
haulers. In sum, it had a continuing concern for the drivers and continued to rep-
resent their interests in the face of changes shippers made with respect to their
delivery operations.
Neither the General Counsel nor the Charging Party offered any explanation for
Sterling's termination of the contracts between it and Fees, and Sterling's use of
common carriers to make deliveries Fees had been making. Nor does the record
otherwise contain any evidence as to the motive for this action by Sterling. There
would appear to be no economic advantage in the change since Respondent repre-
sented the drivers of the carriers as well as Fees' drivers, and the carriers' and
Fees' collective-bargaining relationships with Respondent were governed by the
same collective-bargaining contract. The margin in the hauling rates for the vehicles
and additional factors other than wages are relatively stable and competitive.
It is undisputed tht Sterling's motive for the December 1958 contracts between it
and Fees was to enable it to avoid having members of Respondent in its employ and
8 N L R.B v Denver Building and Construction Trades Council, et al (Gould & Preis)? er).
341 US 675, 692
'General Counsel contends that a primary dispute is not necessary to a finding of a
secondary boycott violation, citing Washington-Oregon Shingle Weavers' District Council.
etc (John E Martin and Frank S Baiker, Co-partners doing business as Sound Shingle
Co ), 101 NLRB 1159, enfd 211 F. 2d 149 (CA 9). However, there was a primary
dispute in that case although it was not an active one, and the Board and the Ninth
Circuit so found. See also Local 1976, United Brotherhood of Carpenters and Joiners of
America, AFL, et at (Sand Door and Plywood Co ), 113 NLRB 1210, 1211-1212, affd.
357 U S 93, and Local 11, United Brotherhood of Carpenters & Joiners of America, AFL,
et at . (General Millwork Corporation), 113 NLRB 1084, 1086, enfd. 242 F. 2d 932 ('CA 6).
i°International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 182 , at at. (Jay-K Independent Lumber Corp.), 108 NLRB 1323, enfd
219 F. 2d 394 (C.A. 2).
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to avoid bargaining with Respondent. Since the record does not disclose an eco-
nomic reason or other business reason for Sterling's assignment of the deliveries to
the common carriers that had been handled by Fees, or for its failure to resume
the delivery service upon the termination of its contract of convenience with Fees,
the presumption arises that Sterling's motive for its contractual relationship with
Fees was also its motive for the assignment of the deliveries to the common carriers.
It can be argued that by December 1960 the Respondent had waived the right it
had to press by primary picketing a demand that Sterling reemploy the three drivers,
and, therefore, the object of the picketing was secondary. The rationale for this
argument is that Respondent in December 1958 ended its primary dispute with
Sterling in regard to this issue by acceding to Fees' request that because of the
contracts of convenience between Sterling and Fees it cease its legal primary activity
against Sterling, as well as the added reason that it permitted the 6 months' limitation
in Section 10(b) of the Act to toll against the right it had in December 1958 to
charge Sterling with the unfair labor practices of discriminatorily discharging the
drivers and refusing to bargain.
The Respondent did not lose the right to engage in legal primary activity in
December 1960 to protect employees rights by its decision in December 1958 in
good faith to recognize as a peaceable settlement of its dispute with Sterling the
contracts of convenience between Sterling and Fees, a third party, which although
an alternative to action sought by the Respondent, provided the complete remedy it
hoped to gain by its primary action . The Respondent is to be commended, not
condemned, by its willingness to live within the spirit of the Act by ceasing its
activity against Sterling following the arrangement made by Sterling with Fees.
When Sterling, without any new motive, abandoned the contracts of convenience
and the arrangement thereunder that provided the peaceable solution, with the result
that Sterling's employees were again out of work for the same reasons that led to
their unemployment before the contracts, Respondent had the same right to engage
in primary activity against Sterling, including primary picketing, that it had prior
to the contracts.ii The tolling of the 6 months' limitation against Respondent's
right to file charges under Section 10(b) of the Act because of the November 1958
conduct of Sterling is not a limitation on its rights to engage in primary activity,
or by any means conclusive evidence that the picketing resumed by Respondent had
a secondary rather than a primary object.
Sterling's unfair conduct did not disintegrate during the interval when the con-
tracts of convenience operated. Nor did Sterling become garbed with the raiment
of a neutral or secondary employer during this period. Certainly, not to the extent
that upon its terminating the contracts of convenience that had the effect of settling
the dispute, and placating the public interest, it can deny the drivers the rights guar-
anteed them under Section 7 of the Act, free of the economic pressure that Respond-
ent exerted against it prior to the contracts. While Congress by the Taft-Hartley
amendments (61 Stat. 136, 141 (1947)) provided media of protection against cer-
tain conduct of labor unions, it never intended that employers should be permitted
to use these media of protection as a device to deny labor unions the right to engage
in legal conduct to secure legal and legitimate objectives on behalf of employees.
For the above reasons, I find that Sterling, the Charging Party, was not, and is
not, a neutral within the meaning of the Act, that no dispute has existed between
Fees and Respondent,12 and that Respondent was not, and is not, estopped from
engaging in primary activity to force Sterling to reemploy its three driver members.
I further find from an evaluation of all the evidence that Respondent's picketing of
Sterling was primary picketing to force Sterling to reemploy the three drivers. The
inducement of the drivers of common carriers and drivers of other employers and
persons at the premises of Sterling was an incidental effect of primary picketing at
a primary situs.13
11 This context is not to be equated with one where the contracts were in effect for a
long period of time, or the three drivers voluntarily left Fees' employ and sought employ-
ment elsewhere, or an economic situation arose which led Sterling to terminate the con-
tracts It is not necessary to consider these situations in arriving at a determination in
this proceeding.
12 Drivers and Chauffeurs Local Union No. 816, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Montgomery Ward and Co , Incorpo-
rated), 127 NLRB 1059, is inapposite
11 See International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO, and Local 179, at al. (Alexander Warehouse & Sales Company),
128 NLRB 916
GEM INTERNATIONAL, INC., ETC. 1343
I conclude and find that General Counsel has not proved by a preponderance of
the evidence the allegations of his complaint that Respondent violated Section
8(b) (4) (i ) and (ii ) ( B) of the Act. In view of my findings and conclusion, I
shall recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Highway Truck Drivers and Helpers , Local 107, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2(5) of the Act , and Sterling
Wire Products Company is engaged in commerce within the meaning of Section
2(6) of the Act.
2. Respondent has not engaged in conduct violative of Section 8(b)(4)(i) and
( ii) (B), of the Act as alleged in the complaint.
RECOMMENDATION
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint herein be dismissed in its entirety.
-GEM International , Inc. and its affiliates, GEM Stores, Inc.,
G.E.M. Southway, Inc. and GEM of St. Louis , Inc. and Local
770, Retail and Department Store Employees Union , Amalga-
mated Clothing Workers of America , AFL-CIO
Local 655, Retail Store Employees Union , Retail Clerks Inter-
national Association , AFL-CIO and Local 770, Retail and
Department Store Employees Union , Amalgamated Clothing
Workers of America, AFL-CIO. Cases Nos. 14-CA-2599 and
14-CB-976. July 17, 1962
DECISION AND ORDER
On March 20,1962, Trial Examiner Lloyd R. Fraker issued an Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Charging Party filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case. The Board finds merit in the exceptions and adopts only the
Trial Examiner's factual findings that are consistent with this De-
cision and Order.
137 NLRB No. 144.