Local 25, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Sep 4, 1964

148 N.L.R.B. 845 (N.L.R.B. 1964)

LOCAL' 2 5, INT'L BROTHERHOOD OF TEAMSTERS, 'ETC. 845
reinstatement . 17 Backpay will be computed in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289 , with interest as directed by the Board
in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All production and maintenance employees at the Respondent's Caruthersville,
Missouri , plant, excluding office clerical employees , draftsmen , guards, professional
employees, and supervisors as defined in the Act , constitute a unit appropriate for the
purpose of collective bargaining within Section 9(b) of the 'Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not refused to bargain with the Union within the meaning
of Section 8(a) (5) of the Act, and the allegations of the complaint in that respect
should be dismissed.
[Recommended Order omitted from publication.]
17 It is well established that an order requiring reinstatement of unlawfully terminated
employees and making them whole is fully supported by the finding of a Section 8(a) (1)
violation . Latex Industries, Incorporated, 132 NLRB 1 , 2, enfd . as to this point 307 F.
2d 737 ( C.A. 6) ; Gordon-Ladley Plywood Products Company , 118 NLRB 1, 14; N.L.R.B.
v. Buzxa-Cardoxo, 205 F. 2d 889, 890 ( C.A. 9), cert. denied 346 U.S. 923.
Local 25, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and J. , C. Driscoll
Transportation ,' Inc. Case' No. 1-CC-359. September 4, 1964
DECISION AND ORDER.
On September 5,1963, Trial Examiner James V. Constantine issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist there-
from and take certain affirmative'adtion, as set forth in the attached
Trial Examiner's Decision. Thereafter,. the Respondent filed' excep-
tions to the Trial Examiner's Decision and a brief in support thereof.
The Board 1 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 Trial Ex-
aminer's Decision, the' exceptions and brief'*"a " d the entire record in
the case, and hereby adopts the findings, `conclusions, and recommenda-
tions of the Trial Examiner, with the following modifications :
In finding that Respondent had violated Section 8(b) (4) (i) and
(ii) (B), the Triad Examiner relied, inter alia, on the fact that Re-
spondent had "done more than resort to picketing; it has called a strike
1 Member Brown did not participate in the Decision and Order herein.
148 NLRB No. 91.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of, and has orally induced and encouraged , employees of Driscoll
Transportation , a neutral , secondary employer ." To the extent that
this statement may be read as implying that oral inducement and en-
couragement of employees of secondary employers will per se convert
otherwise lawful primary picketing under the Moore Dry Dock stand-
ards 2 into unlawful secondary activity , we do not concur with the
Trial Examiner.' We agree, however , that in the context of this case,
the Trial Examiner properly considered these factors as additional
evidence of the Respondent 's proscribed object.
Like the Trial Examiner , we reject Respondent 's contention that in
the circumstances of this case , Driscoll was an "ally " of Boston and
Rockland Transportation Company in a "struck work" sense.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner and orders that Respondent, Local 25,
International' Broth'erhood' of 'Teamsters, Chauffeurs,, Warehousemen
and Helpers of America, its officers, agents, representatives, succes-
sors, and assigns shall take the action set forth in the Trial Examiner's
Recommended Order.
2 Saslors' Union of the Pacific , AFL (Moore Dry Dock Company ), 92 NLRB 547, 549.
2 Cf. Steelworkers v. N.L.R.B. ( Carrier Corp .), 376 U.S. 492 ; Interborough News Co.,
90 NLRB 2135.
4 See Riss & Co, Inc. , 130 NLRB 943 , 950, footnote 15.
We also agree with the Trial Examiner that Driscoll was not an "ally" of Boston and
Rockland Transportation Company in an operational sense We find it unnecessary, how-
ever, to consider , pass on, or adopt the Trial Examiner 's conclusions that in order to
find "allies in one straight line operation ," the stock of such employers must be under
substantially the same control . ( Trial Examiner 's Decision , footnote 9.)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case is before Trial Examiner James V. Constantine of the National Labor
Relations Board upon an unfair labor practice compls^nt , issued on May 21, 1963, by
the General Counsel of the Board, through the Regional Director for Region 1
(Boston , Massachusetts), against Local 25, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. The complaint, based on a
charge and an amended charge filed on April 8 and 18, 1963 , respectively, in sub-
stance alleges the commission of unfair labor practices in violation of Section
8(b) (4) (i) and (ii ) ( B), which affect commerce as defined in Section 2(6) and (7),
of the National Labor Relations Act. Respondent has answered denying any wrong-
doing under the Act and affirmatively pleading certain defenses.
Pursuant to due notice a hearing on the complaint was held before me at Boston,
Massachusetts , on June 25, 1963. All parties were represented at and participated in
the hearing, and had full opportunity to introduce evidence , examine and cross-
examine witnesses, submit briefs, and offer oral argument . Briefs have been received
from Respondent Union and the Charging Party.
Following the close of the hearing a motion to correct transcript was filed. Since
it was signed by the respective counsel for all parties in the case , this motion was
granted.
LOCAL 25, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 847
Upon the entire record in the case, including the stipulations of the parties, and
from my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
J. C. Driscoll Transportation, Inc., a Massachusetts corporation with its principal
office and a place of business at 302 Main Street, Charlestown, Massachusetts, is en-
gaged in business as a common carrier of motor freight. In the year 1962, Driscoll
Transportation performed services in interstate commerce valued in excess of $50,000
outside Massachusetts.
Boston and Rockland Transportation Company (hereinafter called B & R) is en-
gaged at Rockland, Maine, as a common carrier of motor freight. Annually it per-
forms services in interstate commerce valued in excess of $50,000 outside the State
of Maine.
I find that Driscoll Transportation and B & R are engaged in commerce as com-
prehended by Section 2(6) and (7) of the Act, and that it will effectuate the policies
of the Act to assert jurisdiction over the instant proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 25, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization comprehended by Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts hereinafter narrated are made on. the basis of the credible evidence ,and
reasonable inferences drawn therefrom. While many facts were virtually uncon-
troverted, some factual issues were, contested. In assessing evidence in connection
with credibility findings I have credited, some witnesses in part only, whether they
testified for the General Counsel, .the Charging Party, or the Respondent; but I have
not in general recited the evidence from which such findings emanated. Cf. Trum-
bull Asphalt Co. v. N.L.R.B., 314 F. 2d 382, 383 (C.A. 7). All evidence has been
considered, and none has been overlooked, in arriving at the ensuing findings of fact;
that evidence consonant with findings made herein has been credited, while that not
consistent with such findings has been rejected or not credited.
A. The relationship between Driscoll Transportation and B & R
Driscoll Transportation's stockholders are John C. Driscoll and his parents, Victoria
G. Driscoll and William H. Driscoll. This Company operates as a common carrier
in Massachusetts, New Hampshire, Rhode Island, some of Connecticut, and Maine,
with its terminal and a place of business at premises located at 302 Main Street,
Charlestown, Massachusetts. Those premises are owned by a corporation known as
302 Main Street Garage, Inc., with stockholders identical to those of Driscoll Trans-
portation. Driscoll Transportation occupies part of the premises at 302 Main Street
as a tenant. Other tenants occupy the remainder of the premises.
B & R's stockholders are Irma Upham, Ines Bizbee, and Frank Kaler. Prior to
January 1, 1963, B & R also occupied part of the premises at 302 Main Street as a
tenant at will, maintaining a terminal there. Neither Driscoll Transportation, nor
302 Main Street Garage, Inc., nor any of their stockholders has any interest or con-
trol in B & R. Neither B & R nor any of its stockholders has any interest or control
in Driscoll Transportation or 302 Main Street Garage, Inc.
B. Chronology of events prior to April 4, 1963
Prior to January 1, 1963, Driscoll Transportation had about 12 employees, who
are represented by Respondent Local 25. About April 11, 1961, Driscoll Transporta-
tion and Local 25 executed a collective-ibargaining contract expiring at midnight on
January 31, 1967. Local 25 also represented the employees of B & R performing
local pickup and delivery service in the'Boston area, and enjoyed a similar contract
with B & R.
Sometime in November 1962,' Driscoll Transportation entered into negotiations
with B & R to perform, B & R's 'pickup, and delivery service in the Boston area.
President J. C. Driscoll acted for Driscoll Transportation: On November 28, 1962,
these''negotiations culminated in an oral agreement, which was reduced to writing in
1 -1 1,
848 DECISIONS, OF NATIONAL LABOR RELATIONS 'BOARD
early January 1963, that Driscoll Transportation would,(a) perform pickup and de-
livery service in the Boston area for' B. & R and (b) purchase 1 eight of B & R's ve-
hicles. At this meeting counsel for B & R (a) orally notified J. C. Driscoll, who was
also president of 302 Main Street Garage, Inc., that B & R was terminating its tenancy
at the 302 Main Street Garage as of December 31, 1962, and (b) drafted a letter
from B & R to Local 25 informing that union that B & R was closing its terminal at
the 302 Main Street Garage on December 31, 1962, and that Driscoll Transportation
had contracted to perform B & 'R's pickup and delivery service in the Boston com-
mercial zone thereafter. This letter was received by Local 25 shortly thereafter.
, The above written agreement between B & R and Driscoll Transportation provides,
among other things, that Driscoll Transportation will (a)-"protect the shipments . . .
of, B & R from loss, damage and/or destruction," (b) "save harmless B & R from
any damages and/or losses" occurring to such shipments, (c) "`maintain an adequate
terminal utilized exclusively for B & R shipments," and (d). "maintain office facilities,
receive and accept telephone calls for t & R service and perform all other routine
duties and functions required by B & R, in the operation of its transportation business
in the area" mentioned.
As a result of the foregoing transaction B'& R'liad to'lay off its local truckdrivers
affected thereby and Driscoll Transportation'found it necessary to take on-additional
employees. During December 1962 Driscoll Transportation hired an additional dis-
patcher, a rate clerk, and five former truckdrivers---2 arranged for supplementary in-
surance to extend to the extra equipment acquired from B & R; and conferred with
an ICC agent as to the legality of using- a rubber, stamp reading "Via J. C. Driscoll
Company" to avoid "duplications of cutting bills of lading." 3
On about December 4, 1962, Bernard Gould, counsel for B & R, and George
Sordello, business agent for Local 25, discussed the above transaction. Among other
things, Sordello protested the subcontract to Driscoll without prior notice to Local 25
and suggested 'to Gould that Driscoll should hire B &:R men displaced thereby in
order of seniority. The two men also discussed arbitration of this grievance under
the B & R contract with Local 25. -After agreeing that 'arbitration should be re-
sorted to, Local 25 filed a complaint; thereby initiating arbitration against B & R. No
such complaint has ever been filed against Driscoll Transportation by Local 25.
On January 1, 1963, -Driscoll Transportation undertook to perform its functions
under the contract with B & R., This operation may be described succinctly as fol-
lows: A B & R vehicle, consisting, of a tractor and ",box" or trailer, carrying freight
from Maine and Nova Scotia for destinations in the Boston area, would stop at
Driscoll Transportation's 302 Main Street terminal. After unhooking the trailer, the
B & R driver would'park the tractor iii the yard and then leave the premises for 8 to
10 hours. . While the B & R driver was thus absent, Driscoll Transportation em-
ployees transferred, the freight from 'the B & R trailer to Driscoll transportation
pickup and delivery trucks, following which suchempl'oyees delivered the freight -to
the respective consignees An the Boston area by means of such trucks. Upon com-'
pleting such deliveries, the; Driscoll Transportation truckdriver's picked up any freight
destined for Maine or Nova Scotia points via B & R from the'Boston area and re-
turned to the 302 Main Street terminal with the same; such freight was routed on a
B & R bill of lading. Thereupon Driscoll'Transportation employees would transfer
such freight from the Driscoll pickup trucks to B & R empty trailers, and thereafter
the B & R over-the-road truckdrivers would connect tractors to trailers and would
return with the vehicles to B & R's Maine terminal. To facilitate this setup, B & R
maintains' a separate telephone at the 302-Main Street terminal listed under its own
name. It-is answered by Driscoll Transportation employees.
At about 6:15 in the morning of January 2, 1963,4 George Sordello, the business
agent of Local 25, who I find is an agent of Respondent under Section' 2(13) of the
Act, spoke to President Driscoll at the 302 Main Street terminal. Sordello told
.i The vehicles were being bought by Driscoll Rental Corporation, whose stockholders and
officers are J. C Driscoll, his father, William H. Driscoll, and J. C.'s wife, Mary Elizabeth
Driscoll. Although the purchase price must be-paid within a year of the date of sale, no
payments had been made thereon as of the date of the hearing herein
One was a former Driscoll employee ; the other four were B & R employees who were
about to lose their jobs when B & R closed its Boston area terminal.
3 Driscoll Transportation was informed by the ICC agent that it could deliver B & R
freight outside the 12-mile Boston area zone with a notation stamped on the B & R bill
of lading reading "via J. C. Driscoll Transportation , Inc.," but such notation was for-
bidden on B & R freight to be delivered in the Boston area. Driscoll Transportation com-
plied with this informal advice.
'All dates mentioned hereafter refer to 1963 unless otherwise noted.
LOCAL 25, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 849
Driscoll that he intended .to stop Driscoll Transportation from performing the B & R
work, and that Driscoll Transportation could perform such operations only if it em-
ployed all former B & R men in the order of their seniority .as needed. President
Driscoll told Sordello that this was impossible because he had hired enough new em-
ployees to fulfill his obligations under the contract with B & R, and that he would
hire only those former B & R men whom he considered as qualified. -
Immediately thereafter, those employees of Driscoll Transportation who had been
hired to do the former B & R work refused to work. President Driscoll then asked
Frank Thompson, counsel for the "Employers' Group," to come to the terminal. Al-
though both Thompson and Driscoll sought to convince Sordello that Driscoll's con-
tract with B & R was "perfectly legal," Sordello "would not consent." Shortly there-
after Bernard Gould, counsel for Driscoll, arrived at the terminal at President
Driscoll's request. In his conversation with Sordello, Gould insisted that Driscoll
"was in his rights to operate this B & R work," but Sordello "was claiming that
[Driscoll Transportation] could not operate" this work. In a little while Sordello
spoke to some former B & R men standing nearby, and then told President Driscoll
to select any men he needed from that group. In effect Sordello had yielded on the
seniority issue. Driscoll proceeded to pick three of these men 5 and, by 11:45 a.m.,
this aspect of Driscoll Transportation's operations began to function. These opera-
tions continued without incident until April 8.
The foregoing events of January 2 are not contended to constitute unfair labor
practices. '
C. The activities alleged to be an illegal secondary boycott
On April 3 President Driscoll was notified by Frank Kaler, an official of B & R,
that Dave Hastings, president of Local 340 of the Teamsters Union in Portland,
Maine, had called him to a meeting on April 4 in Boston with Sordello and William
McCarthy, Respondent's president,6 and invited Driscoll to attend as "a spectator."
Driscoll did go; B & R's counsel (Bernard Gould) and Kaler also attended.
During the meeting McCarthy- telephoned Sordello. Sordello then reported to the
group that McCarthy demanded that B & R reopen its Boston area terminal on a,
3-week trial basis and put back to work its pickup and delivery drivers who had been
out of work since the first of the year by reason of the new arrangement between
B & R and Driscoll Transportation; and, if B & R was dissatisfied at the.end of this
3-week period, then B & R would be free to resume its arrangement with Driscoll
Transportation. Sordello then gave B & R 20 minutes to decide whether it would
accept these terms. Kaler, who had just been married that day, requested that he be
allowed to render his answer after returning from his honeymoon. After relaying
this request to McCarthy by telephone, Sordello replied that McCarthy would make
no promises. Then the meeting adjourned. During the meeting Gould, counsel for
B & R, also spoke to McCarthy on the telephone after Sordello did. McCarthy sug-
gested to Gould that B & R reopen its Boston area terminal and reemploy its former
local drivers on a-trial basis for 3 weeks. Gould opposed this. -
Encountering Sordello at the 302 Main Street terminal at about 6:30 a.m. on
April 8, President Driscoll asked him why he was there and what he intended to do.
Sordello replied that he was stopping Driscoll Transportation from performing the
B & R work, but that he was not interfering with the other business of Driscoll
Transportation. When Driscoll Transportation employees punched in at 8 a .m., their
job steward , Paul Reagan, asked President Driscoll whether a B & R box just arrived
should be processed by unhooking it. Driscoll replied that because it had been left-
there by a B & R over-the-road driver this was not necessary and ordered the men to
unload it. (The B & R driver had left after he dropped the box.) However, Sordello
ordered both Reagan and the Driscoll Transportation employees not to handle any of
that freight, and they obeyed him. Since it was the only B & R box there, Sordello
soon relented and told Driscoll that this trailer would be unloaded, but no pickups
for B & R at all and no deliveries of any other B & R freight than this could be made
thereafter.
Sordello then spoke to a group of Driscoll Transportation employees , including
Local 25 Job Steward Reagan , telling them that he had "sanction " to call a strike
against B & R. Assuring this group that Driscoll employees as usual could handle
any non-B & R freight and also could unload the freight from a B & R trailer (to
which he pointed) and deliver such freight, he ordered them not to handle any other
5 Driscoll actually chose the same employees whom he had previously hired for this task
prior to the work stoppage.
e McCarthy was unable to come, as he was out of town.
760-577-65-vol. 14 8-5 5
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B & R freight thereafter.? This order was obeyed until it was countermanded pur-
suant to a 10(1) injunction entered about 4 weeks later. Sordello also took two or
three from the group to join the picket line upon completing their work on B & R
freight.
At about 2:30 p.m. on April 8 Local 25 picketed the 302 Main Street terminal with
a placard reading "Boston and Rockland. Teamsters Local 25 on strike." No em-
ployees of B & R were present then or at any time since while the picketing lasted.
The picketing was enjoined by a Federal court under Section 10(1) of the Act about
4 weeks later. Although no B & R vehicle or employee had been present at said
premises from April 9 to the time of said injunction, picketing continued during this
period. All non-B & R work has been performed there without interference at all
times, except that during the picketing trucks of some other transportation companies
using Driscoll Transportation's pickup and delivery service were not permitted by the
pickets to enter the 302 Main Street terminal and were turned away. In addition
some Driscoll Transportation employees also joined the picket line.
D. Respondent's contentions
Respondent relies upon three defenses, any one of which it submits is adequate, to
defeat the complaint. In Respondent's words, these are:
1. Driscoll was an "ally" of B & R in its dispute with Respondent;
2. Any inducement of Driscoll employees to cease handling B & R freight,
whether by direction or picketing, was confined only to B & R and, therefore,
within the so-called Moore Drydock doctrine; and
3. Respondent had a direct and primary dispute with Driscoll because of its
refusal to hire former B & R employees.
E. Discussion and concluding findings
In general, all of the following ingredients must be established in order to prove a
violation of Section 8(b) (4) (i) (B) or (ii) (B) :
(1) a labor organization engages in certain conduct;
(2) that conduct consists of a strike or inducement or encouragement of a
strike or a refusal to perform services (i) (B), or a threat, coercion, or restraint
(ii) (B); and
(3) an object of such conduct is to force or require any person to cease using,
selling, handling, transporting, or otherwise dealing in the products of any other
person, or to cease doing business with any other person.
1. Manifestly the first element is present, for I have found that Local 25 is a labor
organization. See section II, supra. -
2. I find that Local 25 called a strike of Driscoll Transportation's employees when
Sordello twice 8 directed them not to handle any B & R freight either by way of
pickups or deliveries thereof. This is so notwithstanding that such employees were
directed to perform all other regular assignments . Climax Machinery, 86 NLRB 1243.
Additionally, I find that such oral instructions and the picketing constitute induce-
ment and encouragement as comprehended by Section 8(b)(4) of the Act. Jones
and Jones, Inc., 144 NLRB 49.
However, some strikes against primary employers, and certain inducements and
encouragements of employees of primary employers, may be lawful under Section
8(b) (4) of the Act. Respondent urges that its conduct is protected primary activity
directed against Driscoll Transportation. But I find that Respondent does not have a
primary dispute with Driscoll Transportation and that Respondent's sole primary dis-
pute is with B & R. Cf. Sound Shingle Co., 101 NLRB 1159, enfd. sub nom.
Washington-Oregon Shingle Weavers' etc., 211 F. 2d 149 (C.A. 9). Respondent's
"dispute" with Driscoll Transportation is secondary because it has arisen only because
of a primary and underlying dispute with B & R relating to the subcontracting of
work to Driscoll. Wilson & Co., Inc., 143 NLRB 1221; Catalina Island Sightseeing
7 President Driscoll and Counsel Gould also talked to Sordello later that morning at the
office of Local 25. Sordello told them that he wanted Driscoll to hire B & R former em-
ployees according to seniority, and there would then be no problems; and that Driscoll
could do his regular work but not any pickup and delivery work for B & R.
I It is true that Sordello rescinded his first order so as to permit transshipment and
delivery of the freight in the only B & R box standing in the 302 Main Street terminal.
I need not determine whether, if this were an isolated incident of so brief duration, such
conduct amounts to illegal activity.
LOCAL 25, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 851
Lines, 124 NLRB 813, 830 . Moreover , (a) both Sordello and Reagan expressly
testified that Local 25 had no dispute with Driscoll Transportation , and (b) the
picket signs of Local 25 bore a legend restricting the "dispute " to and identifying the
offending employer as B & R only. Under all these circumstances I find that the
"dispute" with Driscoll Transportation is not primary . Cf. N.L.R.B. v. International'
Union of Operating Engineers, Local 12, 293 F. 2d 319 (C.A. 9).
But Respondent further urges that Driscoll Transportation and B & R have be-
come associated as "allies," so that in effect any lawful action which it may impose
on B & R may likewise be directed against Driscoll Transportation . But I find
that these two employers are independent enterprises without common control or
ownership ,9 and that no struck work is involved . Hence I conclude and find that
Driscoll Transportation and B & R are not "allies ." Tennessee Coal & Iron Division
of the United States Steel Corporation , 127 NLRB 823 ; Catalina Island Sightseeing
Lines, 124 NLRB 813, 830. Cases cited by Respondent on this issue have become
inapplicable in view of the foregoing subsidiary and ultimate findings. Therefore
they need not be analyzed or reviewed . No different result is required because B & R
has its telephone listed at the 302 Main Street terminal and Driscoll employees
answer calls received thereat.
Even though Driscoll Transportation is a secondary employer-and I so find-Re-
spondent may lawfully picket at the premises of such employer if certain conditions
are met as delineated in Moore Dry Dock Company, 92 NLRB 547, 549. Respond-
ent contends it has complied with Moore Dry Dock standards . But I find that Re-
spondent has failed to conform with the Moore Dry Dock criteria in at least two
respects , discussed immediately below in subparagraphs ( a) and (b).
(a) In the first place, Respondent has done more than resort to picketing; it has
called a strike of, and has orally induced and encouraged , employees of Driscoll
Transportation , a neutral, secondary employer. Such strike and oral instructions go
beyond the boundaries depicted in Moore Dry Dock and thus illegally enmesh a sec-
ondary employer in a dispute with which he is not concerned . Riss & Company, Inc.,
130 NLRB 943, 949-950, affd . sub nom. Highway Truckdrivers & Helpers, Local
107, 300 F. 2d 317 (C.A. 3). Cf. Professional and Business Men's Life Insurance
Company, 108 NLRB 363, 370; Richfield Oil Corporation , 95 NLRB 1191, 1193.10
(b) In the second place, B & R was not engaged in its normal business operations
at the 302 Main Street terminal while the picketing continued . As found above, the
normal operation of B & R was solely to bring to and haul away from that terminal
B & R equipment . At all other times the B & R driver was required to be away
from this equipment and the 302 Main Street premises for long periods of time
ranging from 8 to 10 hours . Hence the picketing during the time that B & R 's equip-
ment was being unloaded by Driscoll 's men , while no B & R employees were present,
did not occur at a time authorized by Moore Dry Dock. Accordingly I find such
picketing to be proscribed (Robert & Associates, 119 NLRB 962 ; Albert Newlin,
Inc., 143 NLRB 1169) unless it can be immunized under Plauche Electric, Inc.,
135 NLRB 250.
In my opinion Plauche Electric does not protect the picketing here involved.
Plauche holds only that in situations involving an ambulatory primary situs , picket-
ing of such situs at the premises of a secondary employer may be lawful if it con-
forms to Moore Dry Dock standards ; but Plauche Electric also reaffirms Moore
Dry Dock. Since the latter case proscribes picketing at a secondary situs unless the
primary employer is engaged in its normal business there, and since I have found
that B & R was not engaged in its normal business at the 302 Main Street terminal
on the record before me, I conclude that Plauche Electric does not aid Respondent
upon this aspect of the case." See Plauche Electric, Inc., 142 NLRB 1106..
a While .trucking operations consisting of" over-the'road hauling and local pickup and
deliveries may be thought to be "one straight line operation," It is not enough to render
two employers so engaged as "allies." To find they are "allies" it is also necessary that
such employers, unlike those here, be under substantially identical stock ownership and
managerial control. Irwin-Lyons Lumber Company, 87 NLRB 54, 56.
"In this connection, I have considered credited evidence that the pickets appealed to
employees of truckers other than B & R arriving at the 302 Main Street terminal as
customers of Driscoll Transportation. It is evident that such conduct nullifies the legend
on the picket signs restricting the dispute to B & R
11 Although the Board has held that a "product boycott" Is unlawful (Sealright Pacific,
Ltd., 82 NLRB 271 ; Wadsworth Building Company, 81 NLRB 802, 806), and that "serv-
ices" are comprehended by the word "product" (Roberts & Associates, supra), I am of
the opinion that Respondent was not engaged in a product or service boycott on the record
in this case . I so find.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is possible that Respondent may not have conformed its picketing to Moore
Dry Dock qualifications by aberrating from another category thereof, i.e., the picket-
ing may not have been confined to the immediate vicinity of the B & R tractor and
trailer at the 302 Main Street terminal. But the record does not disclose the precise
location of the picketing; and I am unable to infer the particular seat,of the picket-
ing. Since the burden is on the General Counsel to establish violations of the Act,
he must show where the picketing took place; Respondent is not under any onus of
demonstrating that the picketing occurred at a geographically permissible point. On
this record I find that the General Counsel has failed to sustain that burden on the
issue.
The above strike and inducement and encouragement to strike also constitute
threats, coercion, and restraint. Carleton Brothers Company, 131 NLRB 452, 453;
Boston Gas Company, 137 NLRB 1299, 1304; S. M. Kisner et al., d/bla S. M. Kisner
and Sons, 131 NLRB 1196, 1200, et seq. But I find that the requests of Local 25
that B & R resume its Boston area local hauling do not amount to a threat, coercion,
or restraint. Boston Gas Company, supra, at 1304, and cases there cited.
3. On the facts spread upon the record, I find that an object of Respondent's activi-
ties was to force or require Driscoll Transportation to cease doing business with
B & R and with other customers (such as Eastern Express and General Transporta-
tion) of Driscoll. Riss & Company, Inc., 130 NLRB 943. Statements by both
Sordello and McCarthy demonstrate that Local 25 wanted B & R to reestablish its
local runs in the Boston area. But this could be accomplished only by annulling the
contract which B & R had with Driscoll Transportation, thus necessarily destroying
a business relationship. Stockton Plumbing Co. et al., 144 NLRB 49.
4. On the basis of the foregoing findings, and on the entire record, I find that Re-
spondent has engaged in conduct contravening Section 8(b)(4)(i)(B) and (ii) (B)
of the Act.12 Wilson Teaming Company, 140 NLRB 164; Riss & Company, Inc.,
130 NLRB 943. See N.L.R.B. v. International Union of Operating Engineers, Local,
12, supia.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Driscoll Transportation and B & R as described in sec-
tion I, 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 thereof.
V. THE REMEDY
Having found that Respondent has violated Section 8(b) (4) (i) (B) and (ii) (B) of
the Act, it will be recommended that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act. Since Re-
spondent has engaged in a narrow type of secondary boycott involving contractual
relations between Driscoll Transportation and B & R, the order recommended will be
limited to preserving this business arrangement. On the record before me I am un-
able to find that an order broader in scope is warranted.
CONCLUSIONS OF LAW
1. Local 25 is a labor organization within the meaning of Section 2(5) of the Act.
2. Driscoll Transportation and B & R are not "allies."
3. By (a) engaging in a strike, and inducing and encouraging employees of Driscoll
Transportation and other employers (other than B & R) to engage in a strike, or a
refusal in the course of their employment to perform services for their respective em-
ployers, and (b) threatening, coercing, or restraining Driscoll Transportation and
other persons and employers (other than B & R), in both cases with an object of forc-
ing or requiring Driscoll Transportation to cease doing business with B & R, Respond-
ent has engaged in unfair labor practices comprehended by Section 8(b) (4) (i) (B)
and (ii)(B) of the Act.
12 Since Respondent has not been shown to be a certified labor organization, it becomes
unnecessary to determine whether B & R's unilateral action in subcontracting the work
(which I assume is a refusal to bargain and thus violates Section 8(a) (5) under Town
& Country Manufacturing Company, 136 NLRB 1022) justifies secondary pressures to
force a primary employer to bargain with a union. See United Brick & Clay Workers of
America, at al. v. Deena Artware, Inc ., 198 F. 2d 637 , 644-645 (C.A. 6), cert. denied
344 U. S. 897.
LOCAL 25, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 853
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record, it is recommended that Local 25, and its officers, agents, repre-
sentatives, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging the employees of Driscoll Transporta-
tion, or any other employer (other than B & R), to engage in, a strike or a refusal in
the course of the employment to perform services for their respective employers.
(b) Threatening, coercing, or restraining Driscoll Transportation, or any other per-
son or employer (other than B & R), where in either case an object thereof is to
force or require Driscoll Transportation to cease doing business with B & R.
2 Take the following affirmative action designed to effectuate the policies of the
Act.
(a) Post at the business offices and meeting halls of Local 25 copies of the at-
tached notice marked "Appendix." 13 Copies of said notice, to be furnished by the
Regional Director for Region 1, shall, after being duly signed by an authorized repre-
sentative of Respondent, be posted by it immediately upon receipt thereof and main-
tained for a period of 60 consecutive days thereafter in conspicuous places, including
all places where notices to members are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 1, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.14
It is further recommended that unless Respondent shall, within 20 days from the
receipt of this Decision, notify said Regional Director, in writing, that it will comply
with the foregoing recommendations, the National Labor Relations Board issue an
Order requiring it to take the aforesaid action.
11 If this Recommended Order is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by substituting the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and
Order."
11 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO OUR MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT in any manner (1) engage in, induce, or encourage employees
of J. C. Driscoll Transportation, Inc., or any other person or employer, to en-
gage in, a strike or a refusal in the course of their employment to perform any
services for their employers, or (2) threaten, coerce, or restrain J. C. Driscoll
Transportation, Inc., or any other person or employer, where in either case an
object thereof is to force or require said J. C. Driscoll Transportation, Inc., to
cease doing business with Boston and Rockland Transportation Company.
LOCAL 25, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must'reniain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street , Boston , Massachusetts, Tele-
phone No. 523-8100 , if they have any question concerning this notice or compliance
with its provisions.
Northeastern Indiana Building and Construction Trades Coun-
cil; 1 Brotherhood of Painters , Decorators and Paperhangers
of America , AFL-CIO, Local 469; International Hod Carriers,
Building and Common Laborers Union of America , Local 213,
AFL-CIO ; United Brotherhood of Carpenters and Joiners of
America, Local No. 232, AFL-CIO; 2 United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, Local No. 166,
AFL-CIO; International Association of Sheet Metal Workers,
Local No. 156, AFL-CIO; International Association of Bridge,
Structural and Ornamental Iron Workers , Local 147, AFL-
CIO; 3 International Brotherhood of Electrical Workers, Local
305, AFL-CIO; Bricklayers , Masons and Plasterers Interna-
tional Union of America , Local No. 2, AFL-CIO; 4 and Cent-
livre Village Apartments.' Case No. 13-CC-402-2. September 4,
1964
DECISION AND ORDER
On February 28, 1964, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that all the
above-named Respondents, except Bricklayers, had engaged in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in his at-
tached Decision. The Trial Examiner further found that the Brick-
layers had not engaged in the unfair labor practices alleged in the
complaint and recommended dismissal as to it. Thereafter, said Re-
spondents, except Bricklayers, and the General Counsel filed excep-
tions and supporting briefs, and the Charging Party filed a brief in
support of the Trial Examiner's Decision.
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 Trial Ex-
1 Herein called Council.
2 Herein called Carpenters.
? Herein called Iron Workers.
d Herein called Bricklayers.
5 Herein called Centlivre.
6 For purposes of this case, we need not pass upon Respondents ' contention that the
Trial Examiner erred in excluding certain evidence bearing upon the nonpayment of
AFL-CIO wages on the Cintlivre project. As the record shows that the purpose of picket-
ing was not solely to protest noncompliance with prevailing conditions of employment,
the truth of the legend on the picket sign has no material bearing on the issues present
herein.
148 NLRB No. 93.