Local 282, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Jul 17, 1962

137 N.L.R.B. 1321 (N.L.R.B. 1962)

LOCAL 282 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 7.321
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that:
WE WILL NOT discharge any of our employees or discriminate in
regard to their hire , tenure of employment , or any term or condi-
tion of employment , because they have engaged in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to engage in, or to
refrain from engaging in, any or all of the activities specified in
Section 7 of the Act.
WE WILL offer Mary Akey immediate sand full reinstatement to
her former job without prejudice to any rights and privileges
previously enjoyed.
WE WILL make Whole Mary Akey for loss of pay suffered as a
result of her discharge.
WALLS MANUFACTURING COMPANY,
Employer.
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.
Employees may communicate directly with the Board's Regional
Office, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edi-
son 5-5341, Extension 284, if they have any question concerning this
notice or compliance with its provisions.
Local 282, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Acme Concrete
& Supply Corp . Case No. 2-CC-653. July 17, 1962
DECISION AND ORDER
On January 23, 1962, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
137 NLRB No. 137.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereto. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and, as it finds merit in some of the Respondent's exceptions, adopts
the findings, conclusions, and recommendations of the Trial Examiner
only to the extent consistent herewith.
The facts as found by the Trial Examiner are not in dispute. Twin
County Transit Mix, Inc., herein referred to as Twin County, is en-
gaged in the manufacture, sale, and distribution of ready-mixed con-
crete in the Smithtown, New York area. Acme Concrete & Supply
Corp., the Charging Party, herein referred to as Acme, is engaged in
the sale of sand, gravel, and other materials used in the production
of ready-mixed concrete. Twin County's place of business is on prem-
ises owned and occupied by Acme, where Twin County has an office
and garage, maintains its trucks, and takes delivery of raw materials
from Acme. Twin County purchases 99 percent of its materials from
Acme, and Acme makes 85 percent of its sales to Twin County.
The sole stockholder of Acme is the wife of Joseph Muratore, the
general manager of Twin County. Actual operation of Acme is in
the hands of two of Muratore's brothers, one of whom testified that the
brothers were the true owners of Acme, and that their sister-in-law
had only nominal stockownership. Twin County and Acme have no
written agreement. No rental or other charge is made by Acme for
occupancy and use by Twin County of the Acme property. In addi-
tion, Acme has made two loans to Twin County totaling $3,000 without
security and without written evidence thereof. When Acme sought
to refinance a mortgage, it was Joseph Muratore who discussed the
matter with a lawyer.
This case arises out of picketing by the Respondent beginning Sep-
tember 5, 1961, of the premises occupied jointly by Twin County and
Acme. The Respondent, from July 1 to August 25, had previously
picketed these premises in the course of a strike against a group of
employers not including Twin County, in the ready-mixed concrete
industry in the New York City area over the terms of a new contract.'
Four employees of Twin County who were members of the Respondent
had participated in that strike. After that strike was settled on
August 25, the picketing of Twin County ceased and the four striking
Twin County employees sought to return to work. Twin County ad-
vised them that there was no work for them, that it had signed a con-
i This picketing was found by the Board in a prior proceeding to be violative of Sec-
tion 8 ( b) (4) (1) and ( ii) (B) of the Act. Local 282, International Brotherhood of Team-
sters, Chauffeurs Warehousemen and Helpers of America ( Twin County Transit Mix,
Inc.), 137 NLRB 858.
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1323
tract with a different union, but that the four men could "shape up"
for work each day. The Respondent on September 5 resumed its
picketing of the joint premises, including the entrance designated for
Acme use as well as the two Twin County entrances, with signs stating
that the employees had been locked out by Twin County and were
seeking reinstatement to their jobs.
The Trial Examiner found that the two companies do not constitute
a "single employer," that Acme was therefore entitled to the protection
accorded neutral employers by Section 8 (b) (4) of the Act, and that
the Respondent's picketing violated Section 8(b) (4) (i) and (ii) (B)
because, while it had no dispute with Acme, the Respondent picketed
an entrance reserved for Acme use. The Respondent contends that
it was engaged in a primary dispute with Twin County, that Twin
County and Acme are "allies," and, therefore, that its conduct with
regard to Acme was also primary.
The record clearly shows that the Respondent's dispute with Twin
County about reinstatement of the strikers was primary, and the Gen-
eral Counsel does not contend otherwise. The record also shows that
Twin County and Acme jointly occupy premises owned by Acme, that
Twin County pays no rent for its use of these premises, that Acme
has made unsecured loans to Twin County, that Twin County pur-
chases virtually all its materials from Acme and Acme makes virtually
all its sales to Twin County, and that the materials delivered to Acme
are processed and delivered by Acme to Twin County without ever
leaving the premises. In addition, there are close family connections
among those who have important roles in the operations of both
companies.
Thus, the issue here is whether Acme was shielded by Section
8(b) (4) from picketing in the course of the Respondent's primary
dispute with Twin County. The answer depends on the relationship
between Twin County and Acme. Both the Board and the courts
have held that if two employers are "allies," 2 or if they constitute a
2 National Union of Marine Cooks and Stewards and its Portland Local, CIO, et at
(Irwin-Lyons Lumber Company ), 87 NLRB 54; Warehouse and Distribution Workers
Union Local 688, at at . ( Bachman Machine Company ), 121 NLRB 1229 ; United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, at at. (J. G. Roy and Sons Com-
pany ), 118 NLRB 286. In the last two cases , the Board' s orders were set aside by the
courts of appeals • Bachman Machine Company v. NLRB , 266 F. 2d 599 (C A. 8) ;
J G Roy and Sons Company v . N L R.B., 251 F 2d 771 (C.A. 1). On remand, however,
the Board stated , in Bachman, that it accepted the court ' s decision only "as the law of
the case" (124 NLRB 743, 745), and , in J G. Roy, that it did not abandon the views it
expressed in the original decision (120 NLRB 1016) We therefore disagree with our
dissenting colleague 's reliance on the court decisions in those two cases.
We also disagree with the statement in the dissent that an employer loses the protec-
tion of Section 8(b) (4) only when it undertakes to perform struck work We have held
to the contrary in a number of cases, including Irwin-Lyons , J G. Roy, and Bachman,
supra, and the courts of appeals have held to the contrary in Local No 211, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, et at.
(A.C E Transportation Co, Inc ) v N L.R B , 266 F 2d 675 (CAD C.), reversing 120
NLRB 1103; Truck Drivers and Helpers Local Union 728, International Brotherhood of
Teamsters v Empire State Express , Inc, 293 F 2d 414 (CA 5).
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"single employer," 3 a union may picket both even if its dispute is
only with one of them.
We need not here determine whether the relationship between Acme
and Twin County is one of "single employer" or "ally." 4 It is suffi-
cient that Acme and Twin County have such identity and community
of interests as negative the claim that Acme is a neutral employer.5
This is established by the facts found above relating to the interelation-
ship and interdependence of the two companies, and to the close family
connections among those who have important roles in the operations
of both companies. Accordingly, as Acme is not the kind of third
person who was intended to be protected by Section 8(b) (4), we find,
contrary to the Trial Examiner, that the Respondent's picketing of
Acme did not violate the Act, and we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER RODGERS , dissenting :
I disagree with the majority's holding that Acme is not a neutral in
the dispute between the Respondent Union and Twin County.
If I read the majority's opinion correctly, it is their position that
Acme is not entitled to the protection of Section 8(b) (4) of the Act
only because, in their view, there exists a close business relationship
and "close family connections" between Acme and the primary em-
ployer, Twin County.
First, as to the "family connections" assertion, it would appear that
the majority is inferring that Acme and Twin County are commonly
owned and controlled. But the facts, including those recited by the
majority, show that this is not the case. Twin County and Acme are
separate legal entities, separately owned and separately managed.
3 United Steelworkers of America , AFL-CIO ( Tennessee Coal & Iron Division of the
United States Steel Corporation ), 127 NLRB 823, Local No 24, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , et al (A.CE
Transportation Co, Inc .), supra, footnote 2 See also Bachman Machine Company v.
N L R B., supra, footnote 2.
4In a similar case, involving the question whether an employer was entitled to the
protection of Section 8(b)(4), the Court of Appeals for the District of Columbia , stated,
"[T]he answer must be derived by applying the intent of the statute to the facts in the
case. . . We need not devise a new word to describe the relationship " Local 24,
International Brotherhood of Teamsters , etc, et al, v . N.L R.B., supra , at 680. This
case was relied upon, and the above quotation cited with approval , by the Court of
Appeals for the Fifth Circuit in Local 728 , International Brotherhood of Teamsters v.
Empire State Express, Inc , supra, footnote 2
5 During congressional debate on the provision which was to become Section 8(b) (4)
of the Act , Senator Taft explained , "This provision makes it unlawful to resort to a
secondary boycott to inure the business of a third person who is wholly unconcerned in
the disagreement between an employer and his employees " [ Emphasis supplied.]
93 Congressional Record 4323. He also declared*
The secondary boycott ban is merely intended to prevent a union from injuring a
third person , who is not involved in any way in the dispute or strike It Is not
intended to apply to a case where the third person is, in effect , in cahoots with or
acting as part of the primary employer [ Emphasis supplied .] 95 Congressional
Record 8709.
LOCAL 282 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1325
While the nominal stockholder of Acme is the wife of Joseph Mura-
tore, who is only the general manager of Twin County , it is undis-
puted that the real owners of Acme are Jack and Anthony Muratore.
Twin County itself is owned by one Peter Intrabartilo . There is
nothing in this record suggesting that Acme and Twin County have a
common labor policy, or that the labor policy of either is formulated
by the same individual or group of individuals . Further, although
Jack and Anthony Muratore , the managers and owners of Acme, are
brothers of Twin County 's manager , there is no basis for inferring
that Jack and Anthony Muratore have any voice in, or exercise any
control over , Twin County 's operations. Nor is there anything in
this record to show that Joseph is similarly involved to any degree
in Acme's operations.
As to the close business relationship ties, the majority seems to be
suggesting that because the two firms do a substantial business with
one another, neither can be a neutral when one is involved in a labor
dispute. This approach , of course , saps Section 8(b) (4) (B) of its
vitality. A major purpose of this section was to shield employers
from embroilment in disputes a union might have with other firms
with which the employer is doing business . One of the objects specifi-
cally proscribed by this section is "forcing or requiring any person
... to cease doing business with any other person." I would have
thought it basic that a neutral firm does not lose its neutral status
because it does business with a struck employer . Only when that firm
undertakes to perform the struck work itself-and this is not the case
here-can it logically be concluded that it has so involved itself in the
dispute as to lose the section's protection . The majority's position to
the contrary is, in my view , untenable.
Finally, I note that the majority appears reluctant to define with
any specificity the relationship between Acme and Twin County. This
is understandable , in my opinion , because this relationship meets no
accepted definition of "ally" or "single employer." In United Brother-
hood of Carpenters and Joiners of America , AFL-CIO, et al. (J. G.
Boy and Sons Company ), 118 NLRB 286, and in Warehouse and Dis-
tribution Workers Union , Local 688, et al. (Bachman Machine Com-
pany), 121 NLRB 1229 , a Board majority with more supporting
evidence than is present here, found an ally and single employer rela-
tionships . I dissented in those cases , and the Courts of Appeals for
the First and Eighth Circuits flatly rejected the Board 's conception
of what constitutes an ally or single employer . I would emphasize
here, as these courts did in those cases, that there are a number of fac-
tors to be weighed when determining whether or not such a relation-
ship exists , such factors at the very least being common ownership,
common management , common control of labor relations , integration
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of operations, and complete dependence of one company on the other.6
These factors are patently missing from this case.
For the foregoing reasons, I would find that Acme was a neutral,
and that by picketing Acme in furtherance of its dispute with Twin
County the Respondent Union violated Section 8('b) (4) (i) and (ii)
(B) of the Act.
e J. G. Roy and Sons Company v N.L.R B., 251 F. 2d 771 ( C.A. 1) ; Bachman Machine
Company v N . L R B , 266 F. 2d 599 (CA. 8 ). Accord: Employing Lithographers of
Greater Miami, Florida ( Miami Post Company ) v. N.L R.B, 301 F. 2d 20 ( C.A 5), revers-
ing in pertinent point, and agreeing with my dissent in Amalgamated Lithographers of
America and Local 78, et al, 130 NLRB 968. While the majority here reaffirms the
judicially rejected Board holdings of J. G Roy and Bachman Machine, I would note
that in Amalgamated Lithographers of America ( Ind.) and Local No 17, at al. (The
Employing Lithographers , a Division of the Graphic Arts Employers Association and
Lithographers & Printers National Association , Inc ), 130 NLRB 985, the Board cited,
with apparent acceptance of the courts ' contrary views , the decisions of the First and
Eighth Circuits in those cases , p. 989.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding upon a complaint issued on September 15, 1961, against Local 282,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and 'Helpers of
America, herein also called the Teamsters or the Respondent, involves Section
8 (b) (4) (i) and (ii) (B) allegations and was initiated by a charge filed on September 6,
1961, by Acme Concrete & Supply Corp., herein called Acme or the Charging Party.
The hearing was conducted on various days between October 23 and November 2,
1961, at Easton, Pennsylvania, and New York, New York. The General Counsel
presented oral argument and the Respondent filed a brief with Trial Examiner Max
M. Goldman.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS ACTIVITIES OF THE EMPLOYERS
Acme Concrete & Supply Corp., a New York corporation, with its principal office
and place of business at Smithtown, New York, is engaged in the manufacture, sale,
and distribution of sand, gravel, and concrete. During the year ending September
1961, which period is representative of its annual operations generally, in the course
and conduct of its business Acme purchased and caused to be transported and
delivered to its place of business cement and other goods and materials valued in
excess of $50,000, of which goods and materials valued in excess of $50,000 were
transported and delivered to it in interstate commerce directly from States of the
United States other than the State in which it is located.
Twin County Transit Mix, Inc., herein called Twin County, a New York corpora-
tion, with its principal office and place of business at Smithtown, New York, is
engaged in the manufacture, sale, and distribution of ready-mixed concrete. During
the year ending September 1961, which is representative of its annual operations
generally, in the course and conduct of its business Twin County purchased and
caused to be transported and delivered to its place of business cement and other goods
and materials valued in excess of $50,000, of which goods and materials valued in
excess of $50,000 were transported and delivered to it and received from other enter-
prises, including, among others, Acme, located in the State of New York, each of which
other enterprises had received the said goods and materials in interstate commerce
directly from States of the United States other than the State in which it is located.
Schwerman Company of Pennsylvania, Inc., herein also called Schwerman, a
Pennsylvania corporation, with its principal office and place of business at Nazareth,
Pennsylvania, is engaged in providing and performing interstate motor trucking
services. During the year ending September 1961, which period is representative of
its annual operations generally, in the course and conduct of its interstate trucking
operations, Schwerman performed services valued in excess of $50,000, of which
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1327
services valued in excess of $50,000 were performed in and for various enterprises
located in States other than the State in which it is located.
Chemical Tank Lines, Inc., herein also called Chemical, a Pennsylvania corpora-
tion, with its principal office and place of business at Downington, Pennsylvania, is
engaged in providing and performing interstate motor trucking services. During
the year ending September 1961, which is representative of its annual operations
generally, in the course and conduct of its interstate trucking operations, Chemical
performed services valued in excess of $50,000 of which services valued in excess of
$50,000 were performed in, and for various enterprises located in States other than
the State in which it is located.
RBL Leasing Corporation, herein also called RBL, a Pennsylvania corporation,
with its principal office and place of business at Tylersport, Pennsylvania, is engaged
in the leasing of tractor trucking equipment. During the year ending September 1961,
which is representative of its annual operations generally, in the course and conduct
of its business operations, RBL received rental payments valued in excess of $50,000
for leasing trucking equipment used in providing and performing interstate motor
trucking services, of which rental payments in excess of $50,000 were received from
other enterprises including, among others, Chemical, each of which other enter-
prises in the course and conduct of its respective interstate trucking operations per-
formed services valued in excess of $50,000.
Lone Star Cement Corp., herein also called Lone Star, a New York corporation,
with an office and place of business at Albany, New York, and various places in the
State of Pennsylvania and elsewhere, is engaged in the manufacture, sale, and dis-
tribution of cement and related products. During the year ending September 1961,
which is representative of its annual operations generally, in the course and conduct
of its operations Lone Star manufactured, sold, and distributed at its Philadelphia
plant, products valued in excess of $50,000, of which products valued in excess of
$50,000 were shipped from said plant in interstate commerce directly to States of
the United States other than the State in which it is located.
Hercules Cement Company, a Division of American Cement Corp., herein called
Hercules, a New York corporation, with an office and place of business at Philadel-
phia, Pennsylvania, is engaged in the manufacture, sale, and distribution of cement
and related products. During the year ending September 1961, which period is repre-
sentative of its annual operations generally, in the course and conduct of its operations
Hercules manufactured, sold, and distributed products valued in excess of $50,000,
of which products valued in excess of $50,000 were shipped from said place of busi-
ness in interstate commerce directly to States of the United States other than the
State in which it is located.
It is found that Acme, Twin County, Schwerman, Chemical, RBL, Lone Star,
and Hercules are persons engaged in commerce and are engaged in an industry
affecting commerce within the meaning of the Act.
It is further found that at all times material Acme has done business with
Schwerman, Chemical, RBL, Hercules, Lone Star, Twin County, and other persons
engaged in commerce and in industries affecting commerce; and at various material
times, Schwerman and Chemical have engaged in transporting the products of
Hercules and Lone Star to Acme, and in such transporting of products Chemical
rents trucking equipment from RBL.
II. THE LABOR ORGANIZATION
The Respondent, Local 282, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
On August 28, a few days after a ready-mix concrete industry strike in the New
York City area ended in which dispute the Teamsters was but Twin County and
Acme were not involved in negotiations, several drivers who had been employed by
and had picketed Twin County sought to return to work. Drivers Nick Sciortino,
George Longobardi, Salvatore Monti, and Al Joachim appeared on that morning at
Twin County's office and talked with Peter Intrabartilo and Joseph Muratore,
president and general manager, respectively. Joseph Muratore ordered Joachim,
his brother-in-law, off the premises. Sciortino asked whether that order applied to
the others as well, and Joseph Muratore replied that it did not. Sciortino declared
that if Joachim was required to leave the drivers would all leave. The drivers
thereupon left. That afternoon Sciortino, Longobardi, and Monti again appeared
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Twin County and asked for employment. Joseph Muratore then told them that
he did not have employment for them , that a proceeding was then pending before
the Board, and that as soon as he knew more about that proceeding he would let
the drivers know.
A few days later on the morning of September 5, Teamster Delegates Thomas
McElligott and Eugene O'Rourke and Sciortino appeared at Twin County's office
and spoke with Intrabartilo and Joseph Muratore about a contract. Intrabartilo
stated that they had had a strike a few days before and that they had been forced
to sign a contract with another union.
That afternoon Teamster pickets appeared with signs declaring in effect that they
were locked out by Twin County and that all they wanted was their jobs. None of
the picket signs made any reference to Acme. The pickets with the Teamsters'
authorization appeared on the public street, Terry Road, at all three entrances or
driveways to the property used by both Acme and Twin County. This picketing at
the three driveways continued until shortly after the charge was filed in the instant
proceeding on September 6.
About a month or so earlier in the events, signs had been placed at the three
driveways on Terry Road marking the center and north driveways as Twin County
entrances, and the south driveway as the Acme entrance. There is a distance of
about 80 or 90 feet between the center entrance marked "Twin County" and the
south entrance marked "Acme." Prior to this there were only two driveways which
were regularly used and these driveways were used without distinction. After the
entrances were so marked, however, some new drivers who hauled cement to Acme
used any entrance they saw to make deliveries. Between about the time the third
driveway was put into use and prior to September 5, there were a few occasions
when Twin County trucks used the driveway marked "Acme." 1
On September 5, after the picketing at all the entrances, including the one marked
"Acme," started as related above, two drivers of Acme's suppliers sought to make
deliveries of raw cement to Acme. When Chemical driver Thomas Behler appeared
at the scene he stopped the truck about 40 feet from the Acme entrance and three
or four pickets approached him. Among these pickets was Sciortino. The pickets
stated to Behler that they were Twin County drivers, there had been a lockout, they
would not authorize him to stay out or go in, and asked Behler to recognize the
picket line. During the course of this incident another Chemical driver, Harold
Davis, arrived in his truck and Sciortino told Davis not to drive in. Before the
event was over, O'Rourke and McElligott who were also present told Behler that
they could not authorize him to go in or stay out, but asked him to recognize the
picket line. When Schwerman driver, William Penbrook, arrived there were two
Chemical trucks on the street. Pickets who had been at a driveway marked "Twin
County" approached Penbrook and asked him to honor their picket line. Penbrook
informed them that he was delivering cement to Acme and the pickets replied that
so far as they were concerned Twin County and Acme were the same company.
Similar events occurred early in the morning on September 9, when Chemical
drivers were scheduled to make deliveries of cement to Acme during times when
Twin City did not operate. Pickets had slept in cars parked nearby during the
night, and when driver Paul Smith appeared at the entrance marked "Acme" about
2 a.m., the pickets appeared and waved their picket signs in front of Smith. About
an hour later another cement truck appeared, and the pickets again appeared and
pickets waved their signs at him also. About an hour after this incident driver Glenn
Brown appeared and pickets ran in front of the sign that marked the Acme entrance,
and waved their picket signs. Brown thereafter talked with the pickets, including
Sciortino, and was informed that they were picketing Twin County. Brown stated
that he had a delivery for Acme. One of the pickets declared that he could not tell
Brown what to do but that if he was a good union man Brown would respect the
picket line and not make the delivery. About an hour later still another driver
appeared and the same pickets ran into the street as the truck approached the Acme
driveway and waved their picket signs.
1 This finding is based upon notice of the record in a companion proceeding before the
Trial Examiner, Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Twin County Transit Mix, Inc ), Case No. 2-CC-649,
7R-42, issued December 14, 1961 [137 NLRB 858]. This minor use by Twin County of
the Acme driveway prior to September 5 appears to be of no legal significance See United
Steelworkers of America, AFL-CIO and Laurel Hill Refinery Workers Union, Local No.
4355, et al (Phelps Dodge Refining Corp .) v. N L R.B., 289 F. 2d 591, 595 (CA. 2).
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1329
B. The conclusions
The Respondent contends that Acme , as Twin County 's supplier , was not a
neutral and completely unconcerned in the labor dispute between the Respondent
and Twin County, a Transit Mix truck operator.
Acme owns the premises involved . The property consists of some 14 acres and
has a 300-foot front on Terry Road where the three driveways previously mentioned
are located . The improvements consist of a house which provides , among other
things, office space , a hopper or pit where sand , gravel, and cement is gathered, and
certain loading facilities where Twin County trucks , among others , receive the raw
materials or aggregate in separately measured quantities for delivery to construction
sites where it is processed in the trucks by the addition of water and mixing. Acme
mines sand and some gravel on its property for use in its business , but buys raw
cement from others.
Acme started its operations as a supplier in June 1960 . Acme does not have any
trucks for the delivery of the concrete . This is an uncommon situation in the area.
Before the time Acme started operations Twin County , which had been in the transit
mix business for several years, purchased supplies at another pit where , as is not un-
common among the smaller companies in the area , the pit facilities to park its truck
and to purchase fuel were made available to Twin County. Acme and Twin County
reached an agreement under which Twin County purchased most of its supplies
from Acme so long as it was profitable for Twin County to do so and Acme in turn
made available the use of its facilities to Twin County including parking space for
the trucks , a place to store its own fuel, and a garage to perform truck maintenance
work. In the spring of 1961 Twin County was given the use of an office . There are
other pits in the area which offer transit mix companies such as Twin County park-
ing and office facilities . Twin County and Acme each maintains its own books.
From its beginning Acme also sold to other transit mix companies or truckers.
Other truckers purchased from Acme and when they worked in the area also parked
on Acme property. Substantially all Acme's output however goes to Twin County.
By about June 1961, Twin County had seven trucks and purchased virtually all of
its supplies from Acme.
The sole stockowner of Acme is Elizabeth Muratore, the wife of Joseph Muratore,
Twin County general manager . It appears that because of a matter of certain judg-
ments and liens, Elizabeth Muratore is the nominal holder of the Acme stock for
the benefit of her brothers -in-law, Jack and Anthony , both of whom work for
Acme.
As Acme and Twin County, separate legal entities , are not commonly owned or
controlled , and are not engaged in such closely integrated operations that they may
be regarded as a single employer ,2 and as Acme has not engaged in conduct incon-
sistent with neutrality in the dispute between the Teamsters and Twin County, it is
found that Acme is a neutral employer entitled to the protection of Section 8(b) (4) (1)
and (ii) (B) of the Act. Further, although the Teamsters' picket signs proclaimed
Twin County as the one with which it had a dispute, by its conduct beginning Septem-
ber 5 in picketing the Acme entrance and otherwise inducing and encouraging the
drivers of Chemical and Schwerman by soliciting them not to make deliveries to
Acme with an object of forcing Acme to cease doing business with Twin County
and others , the Respondent violated the aforementioned section of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the employers described in section 1, above, and the
employers described in section III, above, involve an industry affecting commerce,
and 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 obstruct-
ing commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The persons named in section I , above, are employers within the meaning of
Section 2(2) of the Act.
a General Drivers, Chauffeurs , and Helpers , Local Union No 886 et at . (James D O'Dell
and H H. Ilulme, Jr, d/b/a Ada Transit Mix), 130 NLRB 788.
649850-63-vol. 137--85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
3. By inducing and encouraging through the conduct as set forth in the section
above entitled , "B. The conclusions," for the proscribed object there described, the
Respondent has engaged in unfair labor practices within the meaning of Section
8(b)(4)(i ) and (ii )(B) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
TIME REMEDY
Having found that the Respondent violated Section 8 (b) (4) (i) and ( ii) (B) of the
Act, it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
[Recommendations omitted from publication.]
Highway Truck Drivers and Helpers, Local 107, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Sterling Wire Products Company.
Case No. 4-CC-151. July 17, 1962
DECISION AND ORDER
On April 10, 1961, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the Respondent, the General Counsel, and Charging Party,
filed exceptions to the Intermediate Report together with supporting
briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Re-
port, the exceptions and briefs, and the entire record in the case, and
hereby adopts the Trial Examiner's findings,' conclusions, and rec-
ommendations, with the exceptions noted below.
The present controversy had its genesis in a 1958 labor dispute be-
tween Sterling and Respondent concerning Sterling's three truck-
drivers. Sterling had been using these drivers to perform its delivery
services on three trucks which it leased from the Hertz Corporation
for that purpose. In order to settle the 1958 dispute, an arrangement
was made whereby Sterling became a "house concern" of Fees, Inc., a
'In adopting the Trial Examiner's recommendation we do not rely upon his findings
with respect to Sterling's motivation in contracting out its trucking operations, first to
Fees, and later to common carriers . Plumbers Union of Nassau County, Local 457, United
Association of Journeymen and Apprentices of the Plumbing and Pspei tting Industry of
the United States and Canada, AFL-CIO (Jerry Body, d/b/a Bomat Plumbing and Heat-
ing), 131 NLRB 1243, enfd . 299 F. 2d 497 (CA. 2). We shall therefore deny the motion
to reopen the record to present further evidence with respect to motivation filed by the
Charging Party. Our decision is based on the fact that the dispute here was, as in
1958, over the tenure of employment of Sterling' s own employees
137 NLRB No. 150.