International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

National Labor Relations Board - Board Decisions

Jun 16, 1950

90 N.L.R.B. 401 (N.L.R.B. 1950)

III the Matter of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CIIAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , DRIVERS LOCAL,
UNION No. 807, AFL and STERLING BEVERAGES, INC.
Case No. 2-CC-93.Decided June 16, 1950
DECISION AND ORDER
On July 22, 1949, Trial Examiner Arthur Leff issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Respond-
ent had not engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief. The National League of
Wholesale Fresh Fruit and Vegetable Distributors, having been
granted permission to intervene as amicus curiae, filed a "Brief of
Exceptions Amicus Curiae." 1
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner to the limited extent consistent with this Decision
and Order.
The Trial Examiner found that the Respondent Union had not
violated Section 8 (b) (4) (A) of the Act, because its picketing activ-
ities at Ruppert's premises were essentially primary rather than sec-
ondary in character. .
In the recent ScAultz case,- we had occasion to consider whether a
labor organization had violated Section 8 (b) (4) (A) of the Act by
picketing the trucks upon which its members were employed at the
situs of a labor dispute with an employer, who was engaged in the
business of transportation. As the Trial Examiner in the. instant
1 The request of the General Counsel and the National League of wholesale Fresh Fruit
and Vegetable Distributors for oral argument is denied inasmuch as the record and briefs,
in our opinion , adequately present the issues and positions of the parties.
2 Schultz Refrigerated Service, Inc., 87 NLRB 502.
90 NLRB No. 75.
903847-51-vol. 90-27 401
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case observed, the dividing line between primary and secondary
picketing is not susceptible of the application of a rigid formula, but
must turn upon a careful analysis of the relevant facts in each case-
In the Schultz case a majority of the Board found that the picketing
complained of was primary picketing and therefore not violative of
the Act. It was particularly important in that case, as here, to examine
the means whereby the respondent union sought to bring pressure
against the primary employer Schultz, because in both cases the
picketing occurred in front of the premises of a secondary employer,
who was a neutral party to the labor dispute. Under the circumstances
of the Schultz case, the majority was persuaded that the respondent
had clearly identified its picketing with the actual functioning of the
primary employer's business at the scene of their labor dispute. The
record in that case disclosed that the pickets had paraded in a U-
shaped manner around Schultz' trucks. Pointing to this fact as evi-
dence of the primary nature of the union's conduct, the majority's
decision emphasized "that Respondent's picketing was limited strictly
in time and area to Schultz' trucks." In a caveat to its decision the
Board elsewhere stated: "A different case would be presented had
Respondent failed to confine its picketing to Schultz' trucks or had
it otherwise employed secondary pressure against Schultz' customers."
The record in the instant case reveals that on at least two occasions
the Respondent Union placed pickets at the entrance to Ruppert's
brewery in anticipation of the arrival and during and after the pres-
ence inside the plant of trucks belonging to Sterling, the primary
Employer with whom the Respondent Union had a labor dispute. Be-
cause the loading platforms here were located inside the plant area,
rather than abutting on a public street as in the Schultz case, the
pickets could not picket around the trucks themselves while they were
being unloaded. Of necessity they were limited to picketing the Rup-
pert plant entrances through which the trucks had passed. The plac-
ards carried by the pickets stated that the Union's dispute was with
Sterling. Nevertheless, the picketing constituted inducement or en-
couragement of the employees of Ruppert, the secondary employer, to
cease handling products on Sterling trucks. As we have previously
held,-, such picketing comes within the proscription of Section 8 (b)
(4) (A), unless we were to agree with the Trial Examiner that the
picketing was "direct primary labor activity aimed immediately at
the employer involved in the principal dispute" and only incidentally
a Wadswvorth Building Company, Inc., and %lassen c6 Hodgson, Inc., 81 NLRB 802;
Sealright Paciic, Ltd., 82 NLRB 271.
INTERNATIONAL BROT1 EfHOOU OF TEAMSTERS, ETC. 403
affecting the secondary employer.' On the basis of the facts in this
case we cannot so agree.
The record in this case discloses that pickets of the Respondent
paraded in front of the secondary employer's premises when Sterling's
trucks were not physically present at Ruppert's plant and failed to
establish that direct and immediate relationship between the picketing
and the object picketed necessary to a finding of purely primary picket-
ing. Thus a driver for Sterling testified, without contradiction, that
when his truck approached the Ruppert brewery, Respondent's picket
was already patrolling the entrance to the plant. On another occa-.
sion, when a Sterling truck had entered the Ruppert driveway, a picket
appeared and continued to patrol in front of Ruppert's premises for
at least 15 and possibly more minutes after all of Sterling's trucks
had left the secondary employer's plant. In our opinion, such picket-,
ing, unlike that in the Schultz case which was directed solely at Schultz
trucks, was not confined to the primary Employer's trucks, but ex-
tended directly to the secondary employer's own premises.-' The line
must be drawn somewhere, and this is where we draw it.
We therefore find, contrary to the Trial Examiner, that the Re-
spondent Union has violated Section 8 (b) (4) (A) of the amended
Act by picketing the premises of Jacob Ruppert.
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 the Respondent, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Drivers Local Union No. 807, AFL, and its officers, repre-
sentatives, and agents shall :
1. Cease and desist from inducing and encouraging the employees
of Jacob Ruppert, or any other employer, by picketing or related
4 The Pure Oil Company , 84 NLRB 315 ; Ryan Construction Corporation, 85 NLRB 417;
Schultz Refrigerated Service, Inc., supra.
6 This distinction , in the opinion of Board Member Murdock , is emphasized by the fact
that Sterling's trucks, which the Respondent was allegedly picketing, were at all times
beyond the ambulatory range of the patrolling picket. In the Schultz case the proximity of
the picketing to Schultz ' trucks made incidental its effect on the secondary employer's
business. Here, the physical situation was such that the Respondent could not relate
Its picketing at Ruppert 's plant directly and immediately to its alleged objective. Con-
ceding that the Respondent may have found itself in a difficult position, Member Murdock
does not believe that the doctrine of the Schultz case should be extended further to make
picketing in front of a secondary employer's premises lawful, where the nexus between
the picketing and the truck allegedly picketed is as tenuous as it is in this case. The
attempt in the dissenting opinion to harmonize the facts of the two cases serves only to
accentuate their distinction.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct, to engage in a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities,
or to perform any services, where an object thereof is to force or
require Jacob Ruppert, or any other employer or person, to cease using,
selling, handling, transporting, or otherwise dealing in the products
of Sterling Beverages, Inc., or to cease doing business with Sterling
Beverages, Inc.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Cease picketing the premises of Jacob Ruppert, 1639 Third
Avenue, New York, New York;
(b) Post at the business office of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Drivers Local Union No. 807, AFL, copies of the notice attached
hereto as an Appendix.6 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by an official representative of the Respondent International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Drivers Local Union No. 807, AFL, be posted by the
Respondent immediately upon receipt thereof and maintained for a
period of sixty (60) consecutive days thereafter, in conspicuous places,
including all places whe}ye notices to members are customarily posted.
-Reasonable steps shall Ve taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER STYLES took no part in the. consideration of the above
.Decision and Order.
MEMBER REYNOLDS concurring specially:
For reasons set forth in my dissenting opinion in Schultz Refrig-
erated Service, Inc., 87 NLRB 502, I concur in the finding that the
Respondent Union has violated Section 8 (b) (4) (A) of the Act by
picketing the premises of Jacob Ruppert.
MEMBER HOUSTON, dissenting :
In my judgment, the determination of my colleagues that the Re-
spondent violated Section 8 (b) (4) (A) by picketing cannot be sup-
6 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words: "A DECISION AND ORDER" the words;
"DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS., ETC. 405
ported on the facts of this case. Their decision today appears to be
inconsistent with the sound principles enunciated only a few months
ago by a majority of the Board in the Schultz case.'
After most careful and thorough consideration, we specifically
stated in the Schultz case that, in determining whether picketing is
protected as primary action, an "important test is the identification of
such picketing with the actual functioning of the primary employer's
business at the-situs of the labor dispute." [Emphasis contained in
original decision.] We found in that case that the test was met by
substantial evidence that the labor dispute related to the drivers of
Schultz' truck, and that the picketing at the operations of other em-
ployers was identified with Schultz' business because it occurred in
the area of the latter's trucks and because the placards used disclosed
Schultz as the struck employer.
In the case before us now, the sole dispute between the Respondent
and Sterling related to the conduct of Sterling's terminal operations
at Ruppert's plant. The picketing by the Respondent was strictly
confined to the entrances to Ruppert's unloading platforms s at times
when Sterling's trucks and employees were present or immediately
expected. And the placards similarly referred to Sterling alone as
the struck Employer.9 Yet, despite this positive identification of the
picketing with Sterling's business at the very situs of the labor dis-
pute, the majority in this case reaches a directly opposite conclusion
and finds that the picketing was not primary but secondary action
and therefore illegal.
Member Reynolds, in effect, concedes that the instant case is con-
trolled by the Schultz decision and relies on the reasons advanced in
his dissent in the latter case. As his position was fully answered by
the majority of the Board in that case, no further discussion thereof
is necessary here. Chairman Herzog and Member Murdock, in an
apparent attempt to distinguish the two cases, attach overriding sig-
nificance to the fact that, on two occasions, picketing was conducted
when Sterling's trucks were not on Ruppert's premises. Member Mur-
dock relies, in addition, on the circumstance that the picketing here
occurred on the public thoroughfare at the entrance to Ruppert's un-
loading platforms, rather than around the trucks themselves. Upon
7 Schultz Refrigerated Service, Inc., 87 NLRB 502.
8 These platforms were 50 feet or less from the plant entrances and were in open view.
9 The alleged secondary employer in the present case is not before the Board complaining
of any interference with its business, a factor also expressly mentioned as "significant" in
the Schultz case.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
analysis, however, I find these distinctions are not substantial or
persuasive.10
With respect to the picketing at times when Sterling's trucks were
itot present, my two colleagues refer only to the testimony of driver
St: Laurent, to the effect, that when he arrived at the entrance to the
unloading platform on March 28, he "saw" a picket there, and to the
testimony of Sterling's treasurer, Faria, that on March 29, picketing
continued for 15 minutes after one of Sterling's trucks had left the.
unloading platform. The triviality of these instances, in the face of
the overwhelming evidence that the Respondent's picketing was di-
rected solely at Sterling's operations, I should have thought would be
readily'conceded. However, in any event, as to the March 28 incident,
the record shows that Sterling's trucks were then operating on a well-
established unloading schedule, concerning which the Respondent was
undoubtedly fully apprised ; and that late the next morning, when
Sterling was proceeding on an off-schedule basis, no picketing what-
soever was commenced until after Sterling's truck had entered Rup-
pert's premises. Therefore, the only realistic conclusion justified by
the record is that the arrival of the trucks on March 28 and the appear-
ance of the picket were virtually coincidental. As to the March 29
incident, it is significant that during the 15 minutes found to be so
critical by my colleagues, Sterling's treasurer, Faria, was still on
the premises, and the picket was apparently unaware that Sterling's
other three trucks, which were parked on the public street at some
distance from the entrance, had been directed to leave the area. Any
picketing during this interval of 15 minutes resulted solely from the
misapprehension of the picket, induced by the continued presence
of Faria, that other Sterling trucks would immediately enter the
premises.
As. to the location of the pickets on the public thoroughfare, the
necessary implication of Member Murdock's finding would seem to
be that, in order to exercise its right to conduct lawful primary picket-
ing in this very common situation, a union must first unlawfully
trespass upon an employer's property. There is no warrant for such
a holding either in the Schultz case or in any provision in the Act.
The test, as I have already noted, is the identification of the picketing
with the operations of the primary employer at the scene of the dispute.
Here, the sole dispute related to the backing up or terminal operations
conducted .by. Sterling on Ruppert's premises." And identification of
10 It may be observed that at the hearing in this proceeding, which occurred after the
issuance of the Intermediate Report in the Schultz case, the General Counsel admitted
that : "If there ever was a twin case, that [ the Schultz case] is a twin case to this one."
11 Member Murdock, by requiring the Respondent to invade Ruppert 's premises to picket
around the trucks , is shrivelling the situs of the dispute from the terminal operations to
the trucks themselves.
INTERNATIONAL BRiOTHERHOOD OF TEAMSTERS, ETC. 407
the picketing with Sterling's operations at this actual situs of the
dispute was enhanced, rather than impaired, when the, Respondent
confined its picketing to those very platform entrances where Sterl-
ing's trucks unloaded.
Accordingly, as the Respondent's picketing was conducted at the
situs of its labor dispute with Sterling and was unmistakably identi-
fied with the functioning of Sterling's business by virtue of: (a) the
location of the pickets at the entrances where Sterling's trucks were
about to be unloaded; (b) the strict limiting of the picketing to those
times when Sterling's trucks and employees were present or immedi-
ately expected; and (c) the display of placards unequivocally iden-
tifying Sterling alone as the struck employer, I would find, under
the authority of the Schultz case, that such picketing was protected
primary activity. Consequently this complaint should be dismissed.
APPENDIX
NOTICE TO ALL MEMBERS
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, as amended, we hereby give notice that :
WE WILL NOT induce or encourage any employees of Jacob
Ruppert, or of any other employer, by picketing or related
conduct, 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 any goods, articles, materials, or
commodities, or to perform services, where an object thereof is
to force or require "Jacob Ruppert or any employer or other
person, to cease using, selling, handling, transporting, or other-
wise dealing in the products of STERLING BEVERAGES, INC., or to
cease doing business with STERLING BEVERAGES, INC.
WE HAVE CEASED picketing the premises of Jacob Ruppert,
1639 Third Avenue, New York, New York.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, DRIVERS LOCAL UNION No. 807,
AFL,
Labor Organization.
By ------------------------------------------------
(Title of officer)
Dated: --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
° Mr. Oscar Geltman, for the General Counsel.
Boudin, Cohn and Glickstein, of New York City, by Mr. Sidney E. Cohn, for
the Respondent.
STATEMENT OF THE CASE
Upon a charge filed March 29, 1949, by Sterling Beverages, Inc., herein called
Sterling, the General Counsel of the National Labor Relations Board,' by the
Regional Director for the Second Region (New York City), issued his com-
plaint, dated June 9, 1949, against International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Drivers Local Union No.
807, APL, herein called the Respondent and on occasion Local 807, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended (June 23, 1947; Public Law 101,
80th Congress, Chapter 120, 1st Session), herein called the Act.
With respect to the unfair labor practices, the complaint alleged in substance
that since about March 28, 1949, the Respondent, by picketing and by visual and
oral appeals, had induced the employees of Jacob Ruppert to engage in a strike
or concerted refusal to perform services or to transport, handle or receive goods,
articles, materials or commodities transported by Sterling, an object thereof
being to force or require Ruppert to cease doing business with Sterling, and that
the Respondent by such acts had violated Section 8 (b) (4) (A) of the Act.
Copies of the complaint, accompanied by notice of hearing thereon, were duly
served upon the Respondent and Sterling.
In its oral answer to the complaint made at the hearing, the Respondent ad-
mitted certain allegations of the complaint ; but denied that it had committed
any unfair labor practices ; set forth certain affirmative defenses more fully
discussed below ; and asserted that the section of the Act upon which this pro-
ceeding is based, and its application to this proceeding contravened the Con-
stitution of the United States.
Pursuant to notice a hearing was held at New York City on June 28 and 29,
1949, before Arthur Leff, the undersigned Trial Examiner, duly designated by the
Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. At the conclusion of the hearing the Re-
spondent moved to dismiss the complaint upon constitutional grounds and also
upon the ground that the evidence was insufficient to establish an unfair labor
practice. The motion to dismiss on constitutional grounds was denied in ac-
cordance with the Board's policy enunciated in Matter of Rite-Form Corset
Company, Inc., 75 NLRB 174. Decision was reserved in the motion to dismiss
for insufficiency of proof. That motion is disposed of in accordance with the
findings of fact and conclusions of law made below. A motion made by the
General Counsel at the close of the hearing, to conform the pleadings to the
proof with regard to minor variances not affecting the substance of the com-
plaint, was granted. Opportunity was afforded all parties to argue orally before
the Trial Examiner, and to file briefs and/or proposed findings of fact and
I The General Counsel and his representative at the hearing are referred to as the General
Counsel, the National Labor Relations Board as the Board.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,, ETC. 409
conclusions of law. Both parties argued orally and a brief was filed by the
Respondent.
Upon the entire record in the case, and from, my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. COMMERCE; THE BUSINESS OF THE EMPLOYERS
Jacob Ruppert, a corporation having its principal place of business in New
York City, is engaged in the business of producing, selling and distributing beer.
During the year 1948, Jacob Ruppert piocluced, distributed, and sold beer valued
at approximately $39,000,000. A substantial portion of the beer produced, sold
and distributed by Jacob Ruppert is sold and distributed in interstate commerce
to customers in States other than the State.of New York.
Sterling Beverages, Inc., a Massachusetts corporation with its principle office
and place of business at North Westport, Massachusetts, is engaged in the busi-
ness of selling and distributing at wholesale beer purchased exclusively from
Jacob Ruppert. Sterling is the exclusive distributor of Jacob Ruppert products
in the counties of Barnstable, Plymouth, Bristol, Duke and Nantucket, in the
Commonwealth of Massachusetts. During the year 1948, Sterling purchased
from Jacob Ruppert beer valued in excess of $1,500,000, all of which was trans-
ported by trucks owned and operated by Sterling from the place of business of
Jacob Ruppert in New York to the place of business of Sterling in Massachusetts,
and thence to the places of business of customers of Sterling in Massachusetts.
At the hearing, the parties stipulated, and it is found, that Jacob Ruppert and
Sterling are engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Drivers Local Union No. 807, affiliated with the American Fed-
eration of Labor, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Sterling and Jacob Ruppert are separately owned, managed, and controlled
business enterprises, having no financial ties other than the contractual arrange-
ment, adverted to in Section I, above, under which Sterling acts as an exclusive
area distributor for Ruppert in southeastern Massachusetts. Ruppert's brewery
occupies an area of about two and a half blocks in New York City. Sterling's
warehouse and plant is in Westport, Massachusetts. Sterling has no place of
business in New York City.
In addition to the employees who operate its trucks locally in Massachusetts,
Sterling employs some six over-the=road drivers who operate its own fleet of
semi-trailer trucks between Sterling's warehouse in Massachusetts and Ruppert's
brewery in New York City. These trucks are used for the purpose of picking up
kegs and cases of beer from Ruppert and returning to Ruppert the empty kegs
and cases. Leaving Sterling's Massachusetts warehouse in the late afternoon,
the trucks usually arrive about midnight in New York City. There they are
parked overnight in the public streets as near to Ruppert's loading and unloading
platforms as possible. In the morning, at a scheduled time, they are taken to
one of Ruppert's several unloading platforms where the empty kegs and cases
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are removed; they are then loaded either at the same or, another platform,
depending on the schedule ; and when this operation has been completed they
are driven back to Massachusetts. The work of loading and unloading the
trucks is performed by Ruppert's platform men who are members of a local
of the Brewery Workers Union, CIO. It takes about 2 hours to load and unload
each truck, and as much as 4 hours to complete this operation for all 4 over-the-
road trucks used by Sterling.
Sterling's truck drivers, both local and over-the-road, are, and for some years
past have been, represented by Local 526 of the same International with which
the Respondent, Local 807, is affiliated. Under a supplement, dated August
2, 1948, to the last contract between Sterling and Local 526, special cognizance
was taken of Sterling's loading and unloading operation at the Ruppert brewery
in New York City. The parties to the contract expressly recognized that it
was the practice of Sterling's over-the-road drivers to back their trucks for
loading and unloading at Ruppert ; Local 526 consented to allow the drivers one
drop and one pick-up in New York on each over-the-road trip ; and Sterling agreed
to compensate each driver for this operation at the fixed rate of $2.40, in addition
to his designated trip rate.
Local 807 is the Teamsters' local that is assigned jurisdiction over the metro-
politan area of New York City. As one means of combating unemployment
among its members, it has embarked, apparently with some measure of success,
upon a program to have Local 807 members employed to peiform the New York
City terminal operations of out-of-State distributors and truckmen doing business
with companies such as Ruppert.
On February 1, 1949, David Frechette, the business agent of Local 807, sent
to Sterling what appears to be a form letter, reading as follows :
Local 807 has Labor Agreements with approximately 85% of the over-the-
road carriers coming into New York City from all of the United States.
With the I. C. C. regulations requiring men to fill out logs and take their rest
periods, it has been of mutual advantage for the over-the-road carriers to
employ 807 members upon arrival. '
You are hauling merchandise in and out of various breweries and at
times it necessitates your drivers waiting several hours in line before the
load can be delivered and a fresh load picked up.
The Local Union would like to cover the operation of your trucks in and
around the metropolitan area of New York. We are enclosing herewith
two copies of our General Trucking Agreement which shows our obligations
as well as yours. We would like to point out at this time that the men when
hired are available from 8: 00 A. M. to 5: 00 P. M. and may cover one or as
many trucks as he can in that period of time.
The writer would appreciate an opportunity to discuss this matter with
you at your earliest convenience.
In the latter half of February, Frechette on two occasions called upon Joseph
Faria, Sterling's treasurer. Asserting that Sterling's so-called backing-up opera-
tion at Ruppert's brewery fell within the jurisdiction of Local 807, Frechette re-
quested Faria to agree to have that operation handled by drivers who were
members of his local.' Faria, after considering the matter, advised Frechette
2 The Respondent introduced into evidence a telegram addressed to it from the business
agent of Local 526, in which Local 526 conceded that Sterling's over-the-road trucks, after
they reached the metropolitan area of New York City, were to be "manned by local unions
having jurisdiction in that area."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 411
that Sterling had decided to continue its past practice of having its own men
perform that work as part of their over-the-road operation. Frechette said that
he would refer Faria's advice to the Local 807 Executive Board to decide what
action would be taken.
When Sterling's over-the-road drivers reported at Ruppert with their truck
loads of empty kegs and cases on the morning of March 28, 1949, they found a
single picket patrolling the public sidewalk in front of the unloading platform
entrance into which they-were to bring their trucks. The picket carried assign
with. the following legend :
Sterling Beverages refuses to employ members of Local 807. Help us
protect our wages and working conditions. Unfair to truck drivers, I. B.
of T. C. W. and H., Local 807, affiliated with American Federation of Labor.
Sterling's drivers made no attempt to back their trucks across the picket line.
One of them-Henry St. Laurent, the only driver who appeared as a witness-
testified that as a good union man he respected a picket line when he saw it.
St. Laurent telephoned Sterling for instructions and was informed by Faria that
the latter would come to New York the following day in an effort to straighten
out the matter.
When Faria early the next morning arrived at the Ruppert brewery, there was
no picket in sight. About 11 a. in., Faria informed his driver, St. Laurent, that
since the picketing had apparently been discontinued, it would be in order for
him to take his truck to the unloading platform.
St. Laurent thereupon backed his truck into the driveway to one of Ruppert's
unloading platforms that lies a distance of approximately 50 feet inside the
building line. Just as St. Laurent was completing this operation and was making
the truck ready for unloading, a Local 807 picket, bearing the sign described
above, appeared on the sidewalk and began to patrol the entrance to the drive-
way. Observing the picket on the sidewalk, the Ruppert platform men, who had
in the meantime approached the truck preparatory to unloading it, stopped and
refused to unload it, saying to St. Laurent, "We can't touch your truck."
St. Laurent and the other Sterling drivers were then instructed by Faria to
return to Massachusetts with their truck loads of empty kegs and cases. Faria
remained on the premises another 15 minutes. While he was there, the picket
continued to patrol the entrance. There is no evidence, however, of any picket-
ing after Faria left. During the picketing, trucks of other distributors freely
came to the loading and unloading platforms and their loads were handled by
Ruppert's employees in the regular way.
That same day Sterling filed with the Regional Office of the Board its charge
which gave rise to the complaint in this proceeding.
The next day Ruppert's employees went out on an economic strike of their own.
The Ruppert strike continued until shortly before the hearing in this case, and
resulted in a complete cessation of deliveries to Ruppert's distributors. In the
interim there was no further occasion for Sterling to bring its trucks to Ruppert's
brewery, and no further picketing by Local 807. The Respondent's counsel, how-
ever, candidly conceded at the hearing that it was the intention of Local 807 to
continue picketing Sterling's trucks at Ruppert's premises. He said, "We will
stipulate for the record that it is our intention, if this dispute is not settled
between Sterling and ourselves, to picket every Sterling operation at the Ruppert
plant every time we can, as quickly as we see a Sterling truck approach, if it
takes from now to the end of the year."
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contentions of the parties and conclusions
The complaint in this case is concerned only with an alleged violation of
Section 8 (b) (4) (A). The impact, if any, of othef sections of the Act upon
the Respondent's conduct may not, therefore, here be considered.' For purposes
of this proceeding, the General Counsel concedes that Sterling and the Respond-
ent are engaged in a valid labor dispute. He raises no question as to the legiti-
macy of the Respondent's demand upon Sterling to hire Local 807 members in-
stead of Local 526 men to perform Sterling's New York City terminal operations
at Ruppert's brewery. But, while granting that the Respondent's primary dis-
pute with Sterling did not have underlying it an illegal union objective, the
General Counsel contends that the method employed by the Respondent to pro-
mote its interest was such as to run afoul of the section of the Act claimed to have
been violated. More specifically, the General Counsel complains that, by carry-
ing on its picketing activities against Sterling's trucks in front of the premises of
Ruppert, a neutral employer with whom Sterling did business, the Respondent
.went beyond the area of economic conflict that the law allows into a field of
activity expressly condemned by Section 8 (b) (4) (A). With that contention
the Respondent takes issue.
The General Counsel and the Respondent are in partial agreement on how
:Section 8 (b) (4) (A) is to be interpreted and applied. Thus both agree with the
.holding of the Board in The Pure Oil Company, 84 NLRB 315, that it would be
plainly at variance with the policy of the legislation as a whole to apply that
,;section to every situation that may appear to fall within the scope of a broad
literal reading of its terms; that to give effect to Congress' purpose in enacting
that section, without at the same time doing violence to the Congressional intent
,to protect (except in certain limited situations not here involved) the right of
direct.action against primary employees, Section 8 (b) (4) (A) must be read
and construed as limited to secondary union action and as excepting from its
sweep "the primary means which unions- traditionally use to press their demands
on employers." "
It is'on the question of where the line should be drawn between primary action
and secondary action that the General Counsel and the Respondent part company.
The General Counsel takes the position that the determinant in all cases of picket-
ing activity is the geographical location of the picket line in relation to the
premises of the struck or primary employer. He argues that picketing is not
to be regarded as an inducement of employees of a secondary employer violative
of Section 8 (b) (4) (A) if, but only if, the picket line is established at the
physical premises of the primary employer. And these premises he would locate
in the instant case at Sterling's warehouse and principal place of business in
Massachusetts. Since the picketing here in question occurred away from Ster-
ling's -place of business and in front of the physical premises of Ruppert with
whom Sterling did business, the General Counsel maintains that the picketing
constituted an illegal inducement and encouragement of the employees of
Ruppert, a secondary employer, and thus fell within the contemplation of
Section 8 (b) (4) (A). The Respondent, on the other hand, takes the position
that in determining whether picketing activity is primary or secondary, the
test-to be applied is against whom it is being primarily directed, not where it
takes place or who may be affected by it. If the picketing is directed against a
3It appears from the record that a charge alleging a violation of Section 8 (b) (4) (D)
was also originally filed by Sterling, but was later withdrawn.
' See also Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672 (S. D. N. Y.).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 413
third person not a party to the dispute in an attempt to coerce or punish him
because he deals with another employer directly involved in the dispute, the
Respondent concedes that the picketing may be regarded as secondary. But the
situation is different, asserts the Respondent, where, as here, the picketing is
directed solely against the primary employer, is confined to the publication of the
union's dispute with that employer, is conducted at a place that has a direct'
relationship to the situs of the primary labor dispute, and occurs at a point where
the primary employer's property and employees may be found, and at the only
point, moreover, where, considering its nature, the dispute may effectively be,
publicized. In the circumstances of this case, argues the Respondent, its picket-
ing of Sterling's trucks was not robbed of its primary character simply because it
took place in front of Ruppert's premises. These, then, are the conflicting posi-
tions which we turn now to resolve.'
To support his position that picketing of a type that may induce employees of
secondary employers to action may be regarded as protected primary activity
only it if takes place at the physical premises of the struck or primary employer,
the General Counsel leans heavily upon the Board's decision in Matter of The'
Pure Oil Comnpany, supra. He points particularly to the emphasis placed by the'
Board in that case upon the fact that the picketing there found to be primary in
character occurred at the struck employer's premises. But in stressing the'
"premises" concept, it seems to me, the General Counsel mistakenly exalts the
words used without penetrating their significance and the reason for their use.'
It is true that, in giving consideration to the Congressional intent to narrow the'
area of industrial strife by confining labor's use of its economic weapons to direct
action against employers primarily concerned in the dispute, the Board in the'
Pure Oil case delimited the area of primary economic conflict-in other words, the:'
situs of the primary labor dispute-by the boundaries of the employer's physical
premises . But in that case, it must be remembered, the Board had before it 'a
labor dispute involving terms of employment and working conditions of employees
whose work location was fixed by the set geographical locations of their enI-
ployer's premises . Because in the Pure Oil case the employer's premises hap-.
pened to have a meaning conterminous with the sites of the primary labor dis
pate , it does not follow that the same is true in every case. For, except to the
extent that it may serve in some cases to mark out the sites of the direct labor
controversy, the geographical location of the employer's premises, standing apart,
can have no particular significance as a determinant of whether union action
is primary or secondary.
There is nothing in the Pure Oil case to suggest, and it seems to me unthink=
able that the Board by that case intended, a rule under which the "employer's
premises" test was to be applied mechanically in all cases, regardless of the
particular situation and the nature of the industry involved. The inflexible
application of such a rule might well mean that in certain situations where the
employees' work location is not restricted to their own employer's premises,
and particularly in certain mobile industries such as transportation and shipping,
"the primary means which unions traditionally use to press their demands on
5 The Respondent contends, additionally, that its peaceful picketing activities were in
any event immunized from the reach of Section 8 ( b) (4) (A) because they constituted an
exercise of the right of free speech protected by Section 8 (c) as well as the First Amend-
ment to the Constitution. The Board having already taken a position adverse to the
Respondent on this precise contention in Matter of Wadsworth Buil