International Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Aug 7, 1958

121 N.L.R.B. 315 (N.L.R.B. 1958)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS 31&
to assign particular work to employees who are members of the undersigned
labor organizations rather than to other employees, except insofar as any such
action is permitted under Section 8 (b) (4) (D) of the Act
LOCAL 169, UNrrED BRoTHERIio0D or CARPENTERS
AND JOINERS OF AMERICA, AFL-CIO,
Labor Organization
1Dated------------------- By-------------------------------------------
(Representative) (Title)
CARPENTERS DISTRICT CouNCIL OF TRl-COUNTIES, ILLINOIS,
Labor Organization
Dated------------------- By-------------------------------------------
(Representative) - (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers, Local Union No. 182 of Utica, N. Y. &
Vicinity and its Agent, William A. Belden, business represent-
ative and The Ailing & Cory Company. Case No 3-CC-77
.4ug'ust 7,1958
DECISION AND ORDER
On March 28, 1958, Trial Examiner Lee`J Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto Thereafter the Respond-
ents and the General Counsel filed exceptions to the Intermediate
Report, and the General Counsel also filed a brief in support of his
exceptions
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 [Chairman Leedom and Members Bean 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
Intermediate Report, the exceptions, the brief, and the entire record
in the case and hereby adopts the findings,i conclusions, and recom-
mendations of the Trial Examiner 2
'The Trial Examiner has inadvertently stated that The Ailing & Cory Company is
engaged in the manufacture, as well as the sale and distribution, of paper and paper
products, The record does not show that the company is engaged in paper manufactur-
ing The intermediate Report is corrected accordingly
2 Member Fanning concurs in finding a violation of Section 8 (b) (1) (A) on the basis
of Curtis Brothers Inc, 119 NLRB 232 While dissenting as to this issue in Andrew
Brown Company, 120 NLRB 1425, he now deems himself bound by the majority's
decision in that case
121 NLRB No 39 -
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No.
182 of Utica, N. Y. & Vicinity, its agent, William A. Belden, busi-
ness representative, and other officers, representatives, agents, suc-
cessors, and assigns, shall:
1. Cease and-desist from :
(a) Restraining and coercing the employees of The Ailing & Cory
Company, Utica, New York, in the exercise of the rights guaranteed
in Section 7 of the Act.
(b) Engaging in or inducing or encouraging • the employees of
General Electric Company, Utica Drop Forge & Tool Company, Nu-
gent's Confectioners, Vick's Bros. Printers, John V. Parsons Truck-
ing Co., Western Express Company, Revere Copper & Brass Com-
pany, or any other employer, to engage in, a strike or a concerted
refusal in the course of their employment to use, manufacture, proc-
ess, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services, where an ob-
ject thereof is (1) forcing or requiring any employer or other person
to cease using, selling, handling, transporting, or otherwise dealing
in the products of The Ailing & Cory Company, or to cease doing
business with that company; (2) forcing or requiring The Ailing
& Cory Company to recognize or bargain with a labor organization
as the representative of its employees unless such labor organization
has been certified as the representative of such employees under the
provisions of Section 9 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Post in conspicuous places in the business offices and meeting
halls of Respondent Union, and at all places where notices to its
members are customarily posted, signed copies of the notice attached
hereto marked "Appendix." 3 Copies of said notice, to be furnished
by the Regional Director for the Third Region, shall, after being
signed by official representatives of Respondent Union and William
A. Belden, business representative, be posted by the Respondents
immediately upon receipt thereof and maintained by them for a
period of sixty (60) consecutive days thereafter. Reasonable steps
shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
SIn the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 317
(b) Mail signed copies of the notice attached hereto marked "Ap-
pendix" to the Regional Director for the Third Region, Buffalo, New
York, for posting, the employers willing, at all locations where notices
to employees of The Ailing & Cory Company, General Electric Com-
pany, Utica Drop Forge & Tool Company, Nugent's Confectioners,
Vick's Bros. Printers, John V. Parsons Trucking Co., Western Ex-
press Company, and Revere Copper & Brass Company are custom-
arily posted. Copies of said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by
authorized representatives of Respondent Union and by William A.
Belden, business representative, be forthwith returned to said Re-
gional Director for such posting.
(c) Immediately upon receipt thereof, and at their own expense,
cause a copy of the notice attached hereto marked "Appendix" to be
printed and published in a daily newspaper of Utica, New York, hav-
ing general circulation in the area and vicinity of Rome and Utica,
New York.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Decision and Order, of the
steps taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS,,WAREIIOUSEMEN & HELPERS, LOCAL UNION No.
182 OF UTICA, N. Y. & VICINITY, AND TO ALL EMPLOYEES OF THE
ALLING & CORY COMPANY, UTICA, N. Y., AND OTHER' EMPLOYERS
NAMED BELOW
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate-the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT restrain and coerce the employees of The Ailing
& Cory Company, Utica, New York, in the exercise of the rights
guaranteed in Section 7 of the Act.
WE WILL NOT engage in, or induce or encourage the employees
of General Electric Company, Utica Drop Forge & Tool Com-
pany, Nugent's Confectioners, Vick's Bros. Printers, John V.
Parsons Trucking Co., Western Express Company, Revere Cop-
per & Brass Company, or any other employer, to engage in, a
strike or a concerted refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or to per-
form any services, where an object thereof is: (a) forcing or
requiring any employer or other person to cease using, selling,
'318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling , transporting , or otherwise dealing' in the products of
The Ailing & Cory Company, or to cease doing business with
that company ; ( b) forcing or requiring The Alling & Cory Com-
pany to recognize or bargain with a labor organization as the
representative , of its employees unless such labor organization
has been certified as the representative of such employees under
the provisions of Section 9 of the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN & HELPERS,
LOCAL UNION No. 182 OF UTICA, N. Y.,
& VICINITY,
Labor Organization.
By-------------------------------------
(Representative ) (Title)
WILLIAM A. BELDEN, BUSINESS REPRESENTA-
TIVE, LOCAL 182
Dated---------------- By-------------------------------------
(WILLIAM A. BELDEN) c
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings authorized and conducted pursuant to Section 10 of the Labor
Management Relations Act, 1947 (61 Stat. 136), herein called the Act, were initi-
ated on November 7, 1957, by the filing of a charge against International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 182
of Utica, N. Y. & Vicinity, and its business representative, William A. Belden,
herein called Respondent Local 182 or Respondent Union, and Respondent Belden,
respectively. Thereupon, the General Counsel of the National Labor Relations
Board, herein separately designated as General Counsel and the Board, on January
15, 1958, issued a combined complaint and notice of hearing, and on January 23,
1958, thereafter, an amended complaint and notice of hearing alleging that the
Respondents engaged in and are engaging in unfair labor practices within the
meaning of Section 8, subsections (b) (1) (A), (b) (4) (A), and (b) (4) (B)
of the Act, affecting commerce within the meaning of Section 2 (6) and (7) of
the Act. Respondents filed an answer admitting jurisdictional allegations of the
complaint, but denied all allegations of unfair labor practices.
The complaint, as amended, more specifically alleges in substance that in fur-
therance of a continuing demand for recognition without being certified under the
provisions of Section 9 of the Act as bargaining representative of the warehousemen
and drivers of The Alling & Cory Company in Utica, New York, the Respondents
followed the delivery trucks of that Company, picketed the premises of customers
to whom deliveries were being made, and induced or encouraged the employees of
neutral employers, New York Central Railroad, General Electric Company, Utica
Drop Forge & Tool Co., Nugent's Confectioners, Vick's Bros. Printers, John V.
Parsons Trucking Co., Western Express Company, and others, to engage- in a
strike or concerted refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on the products of The Ailing & Cory
Company or to perform services for their respective employers, where an object
thereof is (1) to force or require said neutral employers to cease doing business
with The Ailing & Cory Company; and (2) to force or require The Ailing & Cory
Company to forthwith recognize and bargain with Respondent Local 182 as the
representative of its employees, although not certified as such bargaining repre-
sentative in accordance with the provisions of Section 9 of the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 319
Copies of the charge ,.amended charge , complaint , answer, and other pertinent
processes were duly served upon all parties in interest . Pursuant to notice, a
hearing was conducted at Utica, New York, on February 20 and 21 , 1958 , before the
Trial Examiner duly designated by the Chief Trial Examiner . All parties were
present and represented by counsel . 1 All parties were afforded full opportunity
to be heard , to examine and cross -examine witnesses , to introduce testimony and
other evidence pertinent to the issues involved , to argue orally upon the record,
and within a time fixed from the close of the hearing to file written briefs and pro-
posed findings and conclusions . All briefs thereafter filed by counsel for the General
Counsel and the Respondents have been given due consideration.
Upon the entire record in the case, and from observation of the witnesses , 'I make
the following:
FINDINGS OF FACT
1. THE RESPONDENT LABOR ORGANIZATION
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers,
Local Union No. 182 of Utica, N. Y. & Vicinity, is a labor organization within the
meaning of Sections 2 (5) and 8 (b) of the Act. Rocco DePerno is the president
of Respondent Local 182.
Respondent William A. Belden is business representative of aforesaid Teamsters
Local No. 182 of Utica, N. Y. & Vicinity, and when acting in such capacity is the
agent of said labor organization within the meaning of Sections 2 (13) and 8 (b) of
the Act.
IS. THE EMPLOYERS INVOLVED
The Alling & Cory Company is a corporation organized and existing by virtue
of the laws of the State of New York, maintaining its principal office and place
of business at Rochester, New York, where it is continuously engaged in the manu-
facture, sale , and distribution of paper and paper products. It operates divisions in
Pittsburgh and Harrisburg, Pennsylvania; Cleveland and Akron, Ohio; New York
City, Buffalo , Syracuse, Rochester, and Utica, New York. Only the Utica, New
York, division or plant is involved in this case.
During the 12-month period immediately preceding the filing of a charge in this
case The Ailing & Cory Company sold, transported, and delivered in interstate
commerce outside the State of New York finished products, valued in excess of
$1,000,000. During the same period its total sales were valued in excess of
$25,000,000;
I find, therefore, that The Ailing & Cory Company is engaged in commerce within
the meaning of Section 2 (6) and (7) of the Act.
General Electric Company, Utica Drop Forge & Tool Co , Nugent's Confectioners,
Vick's Bros. Printers, John V. Parsons Trucking Co., and Western Express Company
are employers within the meaning of Section 2 (2) of the Act. Their employees are
employees within the meaning of Section 2 (3), and both are subject to any protection
afforded by Section 8 (b) of the Act.
New York Central Railroad and its employees are subject to the Railway Labor
Act, and neither of them is an employer or employee within the meaning of Sections
2 (2), 2 (3), and 8 (b) of the Act. It will be recommended, therefore, with respect
to the inducement of such employees that allegations of the complaint pertaining
thereto be dismissed. In so doing the Trial Examiner necessarily follows decisions
of the Board in Paper Makers Importing Co., Inc., 116 NLRB 267, and W. T. Smith
Lumber Company, 116 NLRB 1756; and also the majority dictum expressed in
U & Me Transfer, 119 NLRB 852 (footnote 11), as follows:
Seaboard, FEC, and their respective employees are subject to the provisions of
the Railway Labor Act. Notwithstanding the recent adverse decision of the
Court of Appeals for the Fifth Circuit in W. T. Smith Lumber Company v.
N. L. R. B., 246 F. 2d 129, Chairman Leedom and Members Murdock and Bean
are still of the view, previously maintained by them in Paper Makers Importing
Co., Inc., 116 NLRB 267, and in W. T. Smith Lumber Company, 116,NLRB
1756, that railroad workers are not employees within the meaning of the Act
and thus are not subject to inducement or encouragement in the statutory sense.
However, as the Board, for reasons sufficient to it, has not filed certiorari proceed-
ings for review, Chairman Leedom and Members Murdock and Bean acquiesce
in the court's decision and here apply the court's view, the instant case falling
within the geographical jurisdiction of that court. Member Jenkins, however, is
in agreement with the court's view in the W. T. Smith Lumber case.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. THE UNFAIR LABOR PRACTICES
A. Pertinent facts
By letter dated April 30, 1957, Business Representative William A. Belden notified?
Manager Roy Spring that Respondent Local 182 had obtained signed membership
applications from all drivers and warehouse employees of The Alling & Cory Com-
pany, and requested a meeting to discuss terms of a collective-bargaining agreement.
Subsequent conferences concerning recognition of Local 182 were terminated by a
strike called by Respondent Local 182, and The Alling & Cory Company filing an
employer petition for an election on June 26, 1957, in Case No. 3-RM-143. On or
about June 25, 1957, the Respondents established a picket line at the warehouse
premises of the petitioner, and picketing thereat was still in progress at the time of
hearing in the present case. On the first day pickets carried a sign (attached to staff), ^
approximately 11 jr 2 feet in size bearing the following inscription:
ALLING & CORY CO., UNFAIR
TO ORGANIZED LABOR
DO NOT PATRONIZE
TEAMSTERS, CHAUFFEURS
WAREHOUSEMEN & HELPERS
AFofL LOCAL 182
UTICA & CENTRAL N. Y. STATE I
On July 17, 1957, the Respondent Union filed charges in Case No. 3-CA-1064
against The Ailing & Cory Company, alleging unfair labor practices violative of"
Section 8 (a) (1), (3), and (5) of the Act, which were found by the Regional Di-
rector for the Third Region to be without merit and dismissed without the issuance of
a complaint. On August 30, 1957, the Board issued its Decision and Direction of
Election finding that the following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act:
All warehouse employees and drivers at the Employer's Utica, New York,
branch, excluding the contact truckdriver [Stanley Bonsel ], office clerical em-
ployees, salesmen, and all guards and supervisors as defined in the Act.2
At the ensuing election held under auspices of the Board on September 10, 1957,
the tally of ballots shows that 5 ballots were cast of which I vote was cast for Local'
182, Teamsters, 3 votes were cast against the participating labor organization, and'
1 ballot was challenged. No representative of Respondent Union appeared at the
election. Consequently, the Regional Director for the Third Region certified on-
September 17, 1957, that a majority of the valid ballots has not been cast for any
labor organization appearing on the ballot, and that no such organization is the-
exclusive representative of all the employees in the unit herein involved, within the-
meaning of Section 9 (a) of the National Labor Relations Act. It is admitted that
subsequent to the foregoing election the picketing by Respondents at the warehouse-
premises of The Ailing & Cory Company continued, and the pickets also made a
practice of following the delivery truck of said Company to the premises of secondary
neutral employers and picketing those premises while products of the primary em-
ployer were being delivered or offered for delivery at such places. It is contended"
by the General Counsel that such conduct of the Respondents restrained and coerced
the employees of The Ailing & Cory Company in the exercise' of the rights guaranteed'
in Section 7 of the Act, and induced or encouraged the employees of neutral sec-
ondary employers to engage in a strike or concerted refusal to perform services,
where an object thereof is (a) forcing or requiring said neutral employers to cease-
doing business with The Ailing & Cory Company, and (b) forcing or requiring The
Ailing & Cory Company to recognize and bargain with a labor organization not
certified as the representative of its employees under the provisions of Section 9 of
the Act. Counsel for the Respondents by written brief filed with the Trial Examiner
contends that the so-called secondary activities were protected under the Moore Dry
Dock doctrine (92 NLRB 547), and that decisions of the Board to the effect that a
union is limited to the primary location of the employer are unwarranted and without
foundation in law.
1 At all subsequent times the second line on the sign above ("TO ORGANIZED LABOR")
was covered by a superimposed placard bearing the word "ORGANIZING "
2 On or about September 6, 1957, an attorney for Respondent Union filed a motion,
to vacate the direction of election on grounds that the majority status of the Union had'
been dissipated and does not represent a majority of the employees of said employer..
The motion was denied as being untimely
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 321
B. The secondary boycott activities
On or about October 24, 1957, Fred P. Gorczynski 3 drove the delivery truck of
The Ailing & Cory Company to a plant of General Electric Company on Bleeker
Street in or near Utica, New York. Having from the beginning allied himself with
the Respondent Union in the picketing, Walter Dinger (employee) and 1 other
man (identified by Dinger as Frank Parks) followed the truck in an automobile
and patrolled with their picket sign outside the plant gate approximately 50 to 60,
feet from the receiving department while products were being delivered to the
customer. The pickets were clearly in view from the premises, and were observed.
by the receiving clerk (Rocco Lofaro), truckdrivers at the loading dock, and possibly
by other employees. Upon completion of deliveries on Bleeker Street, Fred P_
Gorczynski then proceeded with his delivery truck to another plant of General
Electric Company on French Road.
Walter Dinger and his companion followed the delivery truck to the gate entrance
of the latter plant, and again set up their picket line with sign approximately 75
feet from the gate and across the driveway leading from the main highway to the
plant. They were observed by the guard at the gate (Edward Gross) and possibly
other employees. A truck of Western Express Company was stopped by the
pickets while proceeding towards the plant gate, and the driver (Francis Holmes)
was requested to wait until The Alling & Cory Company truck left the premises.
before entering the plant. The Western Express Company driver was a member
of Respondent Local 182.
On another occasion during the latter part of October 1957, Business Represent-
ative William A. Belden and Walter Dinger followed the delivery truck of The
Alling & Cory Company to the Whitestone plant of Utica Drop Forge & Tool
Company, and picketed within 50 feet across -the entrance to the premises while
the driver, Fred P. Gorczynski, was attempting to make a delivery to the shipping
and receiving department. The incident was observed by several employees, includ-
ing the receiving clerk and the traffic manager. Receiving clerk Patrick T. Copraro
immediately reported the situation to his superior traffic manager. The traffic
manager (William W. Wheatley) came out and talked to Business Representative
Belden, and agreed to refuse acceptance upon condition that the pickets be removed.
Wheatley then instructed his receiving clerk (Copraro) not to accept the delivery,
and thereafter ceased to do business with The Ailing & Cory Company. While
the delivery truck was standing at the unloading dock, another truck of John V.
Parsons Trucking Co. came up to the south gate for the purpose of making pickups.
Respondent Belden stopped the driver (John Pfohl) at the gate, and requested him
not to enter. Thereupon the Parsons truckdriver abandoned his mission and drove
off to another plant.
Under similar circumstances on other occasions Respondent William A. Belden
and Walter Dinger followed and picketed in close proximity to the truck while-
unloading at the delivery entrances of Nugent's Confectioners on Oswego Street,
Utica, New York, and Vick's Bros. Printers in Yorkville, New York.
On another occasion Belden and Dinger followed The Alling & Cory Company
delivery truck to the taxicab entrance of the New York Central Railroad terminal'
in Utica, New York, and patrolled with the'picket sign in front of the truck while
it was backed up to the terminal entrance. While the driver (Gorczynski) went
into the station making a delivery, John Vincent O'Brien (employee) sat in the
truck cab, and took a picture of the pickets with a small camera. Realizing that
his picture had been taken on the picket line, Respondent Belden angrily approached'
and accosted O'Brien in the cab of the delivery truck. O'Brien testified that he
was assaulted by Belden. Belden to the contrary testified that he did not lay hands
on O'Brien. Within the context of that situation, I cannot find that the alleged'
threatening of O'Brien with physical violence by reason of the picture-taking incident
on that occasion would constitute restraint and coercion of a nonstriking employee
within the meaning of Section 8 (b) (1) (A) of the Act.
On the eve of Thanksgiving Day, November 27, 1957, The Ailing & Cory Com-
pany dispatched an order of paper products to the printshop of Revere Copper &
Brass Company on Dominic Street in Rome, New York. Business Agent William
A. Belden and Walter Dinger followed the delivery truck in Belden's black Buick
automobile, and sat in the car outside in full view of the building entrance through,
which delivery was made. Driver Gorczynski drove his delivery truck through a
8 Prior to July 1957, Gorczynski was employed by The Alling & Cory Company, as a
supervisor in its warehouse, but after the contract truckdriver ( Bonsel ) went on strike
drove a delivery truck rented for that purpose.
487926-59-vol. 121-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
garage entrance to the unloading platform ; and was followed into the building by
Tony Taverno, a district representative of the Mechanics Educational Society of
America.4 At the dock inside the building Taverno threatened with violence and
berated the driver (Gorczynski ) with epithets of "scab ," etc.; and protested accept-
ance of the merchandise by employees of Revere . The receiving clerk (Jack Briggs)
called in his foreman and threatened to call the police but, having then identified
Taverno as a representative of his own union, stood aside while the foreman assisted
Gorczynski in unloading the shipment . Another representative of MESA named
Cosma arrived about that time, and criticized the foreman for unloading and
accepting the products of The Ailing & Cory Company. When the delivery truck
departed , Jack Briggs observed that Taverno and Cosma walked down the street
towards the Buick automobile occupied by Belden and Dinger . He recalled also
seeing Taverno leave the same car immediately prior to entering the building.
Concluding Findings
The bargaining unit herein involved consisted of four warehouse employees
(Dinger, Frecola , O'Brien, and Radcliff ),5 whose exclusive representation the
Respondent Union claimed on April 30, 1957 . The employer denied recognition
and filed a petition with the Board to determine the representation question . Simul-
taneously therewith Respondent Union called a strike and established a picket line
opposite the loading dock entrance of the warehouse where all employees spent
most of their working hours. It was not necessary to picket elsewhere in order to
reach , these employees . The only employee adhering to the Union and engaging
in picketing is Walter Dinger.
Following the Board-conducted election and certification that no labor organiza-
tion appearing on the ballot is the exclusive representative of all employees in
the appropriate unit, the Respondents made a practice of following the delivery
truck of The Ailing & Cory Company, and picketing the premises of neutral em-
ployers (customers) where deliveries were being made. The pickets were either
observed or observable by the employees of such neutral employers, including
General Electric Company (at two plants ), Utica Drop Forge & Tool Company,
Nugent's Confectioners, Vick's Bros. Printers, and Revere Copper & Brass-Com-
pany. Under the particular circumstances at each site, I find that Respondent
Union and Respondent Belden induced or encouraged the employees of such
neutral employers to engage in a strike or concerted refusal in the course of their
employment to handle the products of The Ailing & Cory Company, or to perform
services for their respective employers , where an object was to force or require
their respective employers to cease doing business with The Ailing & Cory Com-
pany, and to force or require The Ailing & Cory Company to immediately recog-
nize and bargain with Respondent Union as the representative of its employees,
although that labor organization has not been certified as the representative of
such employees under the provisions of Section 9 of the Act. Since no employees
of The Ailing & Cory Company were employed at the sites of secondary em-
ployers, other than the supervisor (Gorczynski) being utilized as driver of the
delivery truck, I cannot agree with the contention of counsel for the Respondents
that the "ambulatory sites doctrine" adopted by the Board in Moore Dry Dock
Co., 92 NLRB 547, should apply in this case Under the circumstances here, I
am constrained to apply the principles established by the Board in Washington
Coca-Cola Bottling Works, Inc., 107 NLRB 299, enfd. 220 F. 2d 380 (C. A., D. C.);
International Brotherhood of Teamsters, etc. (Ready Mixed Concrete Company),
117 NLRB 1266.
It is noted that the original picket sign displayed at the primary site on June
25, 1957, declared that The Ailing & Cory Company was unfair to organized
labor. When less than a majority of the employees joined the strike and picketing,
the sign was changed only to the extent of superimposing the word "ORGANIZING"
over the words "TO ORGANIZED LABOR," thereby designating the picketing as
organizational activities. It is not contended by the General Counsel that such
peaceful organizational picketing prior to the election of September 10, 1957,
was unlawful. Respondent Union, however, refused to participate in the elec-
tion, and received an adverse legal determination of the representation question.
Thereafter, Respondent Union continued its picketing activities for the unlawful
object . of forcing or requiring the employer to immediately recognize and bargain
4 Mechanics Educational Society of America is a labor organization known as MESA,
and represented employees of Revere Copper & Brass Co.
8 Fred P Gorczynski (driver) was supervisor of The Ailing & Cory Company warehouse
at 106 Whitesboro Street in Utica, New York.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 323
with it as .the exclusive representative of its employees without certification as
the representative of such employees under the provisions of Section 9 of the Act.
This conclusion is confirmed by the subsequent extension of the picketing and
other activities to the premises of neutral employers where no employees of The
Ailing & Cory Company were at work , except the delivery truck driver.
As in the case of Curtis Brothers, Inc., 119 NLRB 232 (1957 ), Respondent
Union has since September 10, 1957, continued to picket the primary employer
for,exclusive recognition , admitting in fact that it does not represent a majority of
'employees in the unit . A valid election having been held within the past 12
months in which Respondent Union was rejected,6 it would be unlawful for the
employer to presently accord the recognition demanded by the Union, thereby
'directly depriving its employees of a right expressly guaranteed by the Act to
bargain collectively through representatives of their own choosing or to refrain
'from any or all of such activities , except to the extent that such right may be
affected by an agreement requiring membership in •a labor organization as a con-
dition of employment as, authorized in Section 8 (a) (3) of the Act. Thus Re-
spondent Union is here attempting by coercion to cause the employer to commit
an unfair labor practice , which the Act was designed to prevent . Minority picket-
ing to compel the employer here to recognize a labor organization , recently re-
jected as their bargaining representative by its employees, necessarily exerts a
coercive force upon those employees who prefer to work, because they cannot
escape any harmful effects inflicted upon the 'business on which their livelihood
depends. The conduct of the Respondents was calculated and intended to break
down and destroy their freedom of choice in selecting or not selecting a bargain-
ing representative , and is being engaged in to enable the Respondent Union to gain
what it did not lawfully gain by means of a statutory election conducted by the
Board under the provisions of Section 9 of the Act.
I find , therefore, that the picketing and other conduct of the Respondent Union
and its agent , William A. Belden , business representative , at all times since Sep-
tember 10 , 1957, both at the primary site and at the premises of neutral employers
named herein , constitutes restraint and coercion of the employees of The Alling
& Cory Company in the exercise of the rights guaranteed in Section 7 of the
Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in
connection with the operations of the employers set forth in section II, above, have
a close, intimate , and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondents engaged in and are engaging in activities violative
of Section 8 (b) (A), 8 (b) (4) (A), and 8 (b) (4) (B) of the Act, it will be
recommended that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Because of the extensive scope
,and range of such unlawful activities, I find necessary, in order to effectuate the
policies of the Act, to issue an order broad enough to enjoin the recurrence of such
conduct throughout the area of Rome and Utica, New York. I shall recommend,
therefore, that the Respondents at their own expense publish copies of the notice
attached hereto as "Appendix" in a daily newspaper of general circulation in that
area.8
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Ailing & Cory Company and other employers named in the complaint
are engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers,
Local Union No. 182 of Utica, N. Y. & Vicinity is a labor organization within the
meaning of Section 2 (5) of the Act.
See Section 9 (c) (3) of the Act
Cf Alloy â tanufacturing Company, 119 NLRB 307; Ruffalo's Trucking Service, Inc,
'119 NLRB 1268 '
8 See Truck Drivers and Helpers Local Union No 728 etc. (Genuine Parts Company),
119 NLRB 399, and cases cited therein, where similar requirements were made.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 By engaging in, and by inducing or encouraging employees of General Electric
Company, Utica Drop Forge & Tool Company, Nugent's Confectioners , Vick's
Bros Printers , John V Parsons Trucking Co, Western Express Company, anck
Revere Copper & Brass Company to engage in a strike or concerted refusal in the
course of their employment to handle the products of The Alling & Cory Company,
Utica, New York , where objects thereof were (A) to force or require such employers.
to cease doing business with The Ailing & Cory Company , and (B ) to force or
require The Alling & Cory Company to immediately recognize and bargain with
said labor organization as the representative of its employees without being certified
as the representative of such employees under the provisions of Section 9 of the
Act, the Respondent Union and its Agent, William A. Belden, business representa-
tive, have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (b) (4) (A) and 8 (b) (4) (B) of the Act, and also 8 (b) (1) (A)
4 By picketing for recognition as the exclusive bargaining representative when,
it did not represent a majority of the employees of The Ailing & Cory Company,
Respondent Union and its Agent , William A Belden, business representative,
restrained and coerced such employees in the exercise of the rights guaranteed ur
Section 7 of the Act , thereby violating Section 8 (b) (1) (A) of the Act 9
5 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication l
9 See Curtis Brothers, Inc, 119 NLRB 232
Tulsa General Drivers, Warehousemen and Helpers, Local No.
523, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Cooper Supply
Company. Case No 16-CC-81 August 7, 1958
DECISION AND ORDER
On April 1, 1958, Trial Examiner Sidney Lindner issued his Inter-
mediate. Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief 1
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, Bean, and Fanning].
The Board has considered the Intermediate Report, the stipulated
record upon which it is based, the exceptions, and the brief of the,
Respondent,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner 3
1 The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, exceptions, and brief adequately present the issues and positions of the parties
z The Supreme Court's recent decision in the Sand Door case disposes of Respondent's
contention that the "hot cargo" clause in its agreements with the carriers who handled"
Cooper's freight is a complete defense to its alleged violation of Section 8 (b) (4)
Local 1876, United Brotherhood of Carpenters and Joiners of America, AFL, et at v
NLRB,357U S 93
3 Truck Drivers and Helpers Local Union No 515, etc, (Chattanooga Warehouse i&-
Cold Storage Company and Baggett Transportation Company), 121 NLRB 51
121 NLRB No 54,