Highway Truck Drivers & Helpers, Local 107, Etc.

National Labor Relations Board - Board Decisions

Nov 29, 1963

145 N.L.R.B. 212 (N.L.R.B. 1963)

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of these two companies is not appropriate for purposes of
collective bargaining.
Since the proposed unit is inappropriate, we find that no question
concerning representation has arisen in this case, and we shall accord-
ingly dismiss the petition.
[The Board dismissed the petition.]
Highway Truck Drivers and Helpers , Local 107, affiliated with
the International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and George F. Paravicini,
individually and trading as D.L.W. Transportation Company.
Case No. A0-63. November 29, 1963
ADVISORY OPINION
This is a petition filed by Highway Truck Drivers and Helpers,
Local 107, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein called the
Petitioner, for an Advisory Opinion in conformity with Sections
102.98 and 102.99 of the National Labor Relations Board's Rules and
Regulations, Series 8, as amended.
On October 18, 1963, George F. Paravicini, individually and trading
as D.L.W. Transportation Company, herein called the Employer or
primary employer, filed an "Answer to Petition for Advisory Opin-
ion." Thereafter, on October 23, 1963, Bernard Samoff, Regional
Director for the Fourth Region of the National Labor Relations
Board, herein called Regional Director, filed a motion to intervene set-
ting forth jurisdictional facts developed in the course of his investiga-
tion of an unfair labor practice charge filed on September 23, 1963, by
the Employer against the Petitioner in Case No. 4-CP-63. On Octo-
ber 28, 1963, the Employer filed an answer to motion to intervene, and
on the same date, the Petitioner filed a reply to jurisdictional facts.
The motion of the Regional Director to intervene is hereby granted.
In pertinent part, the petition, the answer, the intervention, and the
answer and reply to the intervention allege as follows :
1. There is pending a complaint in equity filed by the Employer
against the Petitioner docketed as Court of Common Pleas No. 5 of
Philadelphia County, June term, 1963, No. 5003, in which the Em-
ployer seeks an injunction against the Petitioner's picketing of his
truck at the stops and points of delivery which the Employer makes
in the course of his business. The complaint in equity alleges that the
Petitioner, by its picketing, "is presently engaged in a course of con-
145 NLRB No. 23.
HIGHWAY TRUCK DRIVERS & HELPERS , LOCAL 107, ETC. 213
duct designed to cause other persons as well as his present cus-
tomer . . . to stop doing business with him."
2. The Employer is engaged at 6056 Tackawana Street, Philadel-
phia, Pennsylvania, in the general hauling of goods, wares, and
merchandise as a common carrier licensed by the Pennsylvania Public
Utility Commission and by the Interstate Commerce Commission.
The Employer 's business consists of hauling finished products solely
from Parke-Davis & Company, herein called Parke-Davis, to hospitals
and distributors pursuant to a contract with Parke-Davis.
3. During the calendar year 1961, the Employer's gross receipts were
$47,929.02, while during 1962 , they were $50,381.33. During the first
half of the calendar year 1963, the Employer 's gross receipts amounted
to $25,915.69 . Thereafter , on July 15, 1963, Parke-Davis notified the
Employer that it was terminating finally its agreement with the
Employer. There is no prospect of contract renewal. After the termi-
nation notice , the Employer dismissed his entire work force of three
drivers and sold four of his trucks . He continued operations with
Parke-Davis on a "call" or ad hoc basis, utilizing his own services
alone, without any employees . There is no indication to what extent,
if any, the Employer performs services for other employers. Since
then the Employer 's business with Parke-Davis has continued at the
rate of $12 ,000 to $15,000 per year and allegedly will so remain in
the future.
4. The Petitioner and the Employer agree that when the Employer
began to drive his own truck and make deliveries of merchandise,
principally for Parke-Davis, from its Cherry Hill, New Jersey, plant,
to Pennsylvania, the Petitioner peacefully picketed the truck at the
premises of Parke-Davis, U.S. Post Offices, and at the premises of
other neutral secondary employers to whom deliveries were made.
5. The Employer does not dispute , as the Petitioner alleges, that at
its Cherry Hill plant Parke-Davis annually ships outside the State
of New Jersey merchandise valued in excess of $50,000, although he
"does not know what the total business of Parke-Davis happens to be."
Similarly, the Employer has no knowledge of the commerce data of
the other neutral secondary employers at whose premises the Peti-
tioner picketed his truck, although the Petitioner also alleges that
all these employers either annually ship outside of Pennsylvania
merchandise valued in excess of $50,000, or annually make more
than $50,000 in purchases of merchandise which originate outside of
Pennsylvania.
6. The Petitioner contends that the Employer 's operations alone
meet the Board 's jurisdictional standards and that, in any event, as
the injunction complaint in equity alleges secondary activity on the
part of the Petitioner proscribed by Section 8 (b) (4) of the Act, the
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board would assert jurisdiction because this activity involves second-
ary employers over whose operations the Board would assert jurisdic-
tion. On the other hand, the Employer contends that he is not in
commerce as defined or as set forth under the Board's jurisdictional
standards and that the Petitioner's conduct does not violate Section
8 (b) (4) of the Act.
7. On September 23, 1963, the Employer filed an unfair labor prac-
tice charge against the Petitioner in Case No. 4-CP-63 which is pres-
ently being investigated by the Regional Director.
On the basis of the above, the Board is of the opinion that :
1. The Employer is an interstate common carrier engaged in gen-
eral hauling of goods, wares, and merchandise at Philadelphia,
Pennsylvania.
2. The Board will assert jurisdiction over instrumentalities, links,
and channels of interstate commerce which derive at least $50,000 per
annum from such operations or which perform services valued at
$50,000 or more per annum for enterprises over which the Board would
assert jurisdiction. H P 0 Service, Inc., 122 NLRB 394, 395. The
current Board standard for the assertion of jurisdiction of nonretail
enterprises requires an annual minimum of $50,000 inflow or outflow
across State lines, direct or indirect. Siemens Mailing Service, 123
NLRB 81, 85.
3. In view of the Petitioner's activity affecting neutral secondary
employers such as Parke-Davis, whether or not the Employer's opera-
tions by themselves meet the aforesaid H P 0 Service, Inc., standard,
need not be decided. For the purposes of this Advisory Opinion, we
shall assume that they do not. In cases involving secondary activity
by a union which may be violative of Section 8 (b) (4) of the Act where,
as here assumed, the Employer's operations do not meet the Board's
jurisdictional standards, the Board will take into consideration for
jurisdictional purposes not only the operations of the primary em-
ployer, but also the entire operations of the secondary employers at
the locations affected by the alleged conduct involved.' The Peti-
tioner's picketing of the Employer's truck at Parke-Davis' Cherry
Hill plant was activity which affected that plant, and, as indicated
above, Parke-Davis annually has out-of-State shipments of more than
$50,000 from that plant. As such out-of-State shipments constitute
sufficient outflow under the Siemons nonretail standard, the Board
would assert jurisdiction over Parke-Davis.2 In these circumstances,
and in accord with established Board precedent, the Board would as-
sert jurisdiction over the primary employer and Parke-Davis, the sec-
1 See Charles H. Norman, at al, d/b/a Tri-Cities Broadcasting Company, 138 NLRB 239,
and cases cited in footnote 2 therein.
2 In the past, the Board has asserted jurisdiction over the operation of Parke-Davis.
See 85 NLRB 533, 52 NLRB 1251, 51 NLRB 179, and 33 NLRB 316.
LOCAL UNION NO. 519, ETC. 215
ondary employer affected by the Petitioner's activity, whether or not
such activity is, in fact, violative of Section 8(b) (4) of the Act.'
Accordingly, the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations, Series 8, as amended, that on
the allegations here present, the commerce operations of the primary
employer and those of secondary employer Parke-Davis at Cherry
Hill, New Jersey, the location affected by the Petitioner's secondary
conduct, are such that the Board would assert jurisdiction with respect
to labor disputes cognizable under Section 8 or 10 of the Act.4
See Terrizzi Beverage Company, 137 NLRB 495, and cases cited in footnote 5 therein.
In view of our determination herein , it has been unnecessary to consider the commerce
data of the other neutral employers involved in the Petitioner 's picketing activity.
Local Union No. 519, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, and its business agent,
George T. Fitzpatrick and Center Plumbing and Heating Corp.
and Local 349, International Brotherhood of Electrical Work-
ers, AFL-CIO and L & M Electric Company, Inc. Cases Nos.
12-CC-260 and 12-CC-263. December 2, 1963
DECISION AND ORDER
On August 2, 1963, Trial Examiner Joseph I. Nachman issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondents had engaged in certain unfair labor practices but recom-
mending a dismissal of the complaints in their entirety, as set forth in
the attached Intermediate Report. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a brief, and each of
the Respondent Unions filed a brief in support of the Intermediate
Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record, including the exceptions and
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications.
The Trial Examiner found, and we agree, that the Respondents
violated Section 8(b) (4) (ii) (B) by picketing Golden Development
Corporation and its selling agent, Intercity Realty Company, at the
145 NLRB No. 21.