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

National Labor Relations Board - Board Decisions

Nov 19, 1962

139 N.L.R.B. 1077 (N.L.R.B. 1962)

LOCAL 282 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1077
(d) Notify the Regional Director for the First Region , in writing, within 20 days
from the date of this Intermediate Report and Recommended Order , what steps the
Respondent has taken to comply herewith."
I further recommend that the complaint be dismissed insofar as it alleges that
Respondent violated the Act by the discharge of John Stuart and Carleton Tuttle.
n In the event that this Recommended Order be 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 the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT interfere with , restrain , or coerce employees in the exercise of
their rights to engage in concerted activities for their mutual aid and protection,
by discharging employees or discriminating in regard to their hire , tenure of
employment , or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with , restrain, or
coerce employees in the exercise of their right to engage in, or refrain from
engaging in, any or all the activities specified in Section 7 of the Act.
WE WILL offer Charles Tracchia and Charles Doherty immediate and full
reinstatement to their former or substantially equivalent position , without preju-
dice to their seniority and other rights and privileges , and will make them whole
for any loss of pay suffered as a result of their discharge.
PLASTICS INDUSTRIAL PRODUCTS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly wtih the Board 's Regional Office , 24 School
Street, Boston , Massachusetts , Telephone Number , Lafayette 3-8100 , 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 Precon Truck-
ing Corp.; Precast Inc.; Precrete, Inc.; Concrete Conduit,
Inc.; and Consolidated Edison Company of New York, Inc.
Case No. ?-CC-650. November 19, 1962
DECISION AND ORDER
On December 11, 1961, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent, the General Counsel,
139 NLRB No. 92.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Charging Parties filed exceptions to the Intermediate Report
and briefs in support of their exceptions. The Respondent also re-
quested oral argument.'
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 In-
termediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
MEMBER BROWN, dissenting :
Precon and its parent manufacturing companies, together constitut-
ing a single employer, have had a long-standing arrangement with
Con Edison under which Con Edison's employees picked up and trans-
ported materials purchased from the mentioned manufacturers. The
practice during this same period, however, was for Precon's drivers
to deliver merchandise sold to Subway Co., a subsidiary of Con Edison.
In February 1961, Subway merged with Con Edison and Con Edison
thereupon began picking up materials formerly delivered to Subway
by Precon drivers.
In June and July 1961 negotiations for contract renewal occurred
between Precon and Respondent, the latter being the bargaining rep-
resentative of Precon's drivers. Respondent proposed and struck for
a contract provision to the effect that Precon drivers, when available,
would deliver all merchandise sold by Precon' s manufacturing
associates.
Despite the fact that Respondent merely was bringing economic
action against Precon in an effort to protect the jobs and job oppor-
tunities of Precon's own employees in Precon's own contract unit,
my colleagues hold such conduct unlawful. For reasons fully set
forth in prior decisions, I must dissent 3
1 Because, in our opinion, the record , exceptions , and briefs adequately set forth the
issues and positions of the parties , this request is hereby denied.
z The Appendix attached to the Intermediate Report is modified by deleting the word's
"60 days from the date hereof" In the next to the last sentence of said notice and Insert-
ing in its place the words "60 consecutive days from the date of posting. . . .
The Appendix is amended further by adding : "Employees may communicate directly
with the Board 's Regional Office, 745 Fifth Avenue, New York, New York, Telephone
Number, Plaza 1-5500 , if they have any question concerning this notice or compliance
with its provisions."
eLocal 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry, etc. (Arthur Venneri Company ), 137 NLRB 828 (dissenting opinion of
Member Brown ) ; Local 1066, International Longshoremen 's Association, AFL-CIO, at al
(Wiggin Terminals , Inc.), 137 NLRB 45 (dissenting opinion of Members Fanning and
Brown ) ; International Longshoremen 's Association , AFL-CIO, et at. ( The Board of
Harbor Commissioners ), 137 NLRB 1178 ( dissenting opinion of Member Brown).
LOCAL 282 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1070
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Precon Trucking Corp.; Precast Inc .; Precrete, Inc.;
Concrete Conduit , Inc.; and Consolidated Edison Company of New York, Inc.,
herein called Precon , Precast, Precrete , Concrete Conduit, and Con Edison , respec-
tively, the General Counsel of the National Labor Relations Board issued a com-
plaint dated August 18 , 1961, alleging that Local 282, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , herein called
Respondent or Union, had engaged in and was engaging in unfair Labor practices
affecting commerce within the meaning of Section 8(b) (4) (i ) and (ii) (A) and (B)
of the National Labor Relations Act, as amended . Respondent filed an answer
in which it denied the commission of any unfair labor practices . Pursuant to due
notice of hearing, the matter was heard before Trial Examiner George J. Bott on
October 10, 11, 12, 13, 19, and 20 , 1961, in New York, New York. All parties
were represented at the hearing. The parties argued orally at the close of the
hearings and briefs have been received from General Counsel , the Charging Parties,
and Respondent which have been considered.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE NATURE OF THE CHARGING PARTIES' BUSINESSES
A. The jurisdiction of the Board
Precast, Precrete, and Concrete Conduit are New York corporations engaged
in the city of New York in the manufacture and distribution of prefabricated con-
crete products. In the operation of their respective businesses each annually ships
products valued at in excess of $50,000 outside of the State of New York.
Precon is a New York corporation engaged in the city of New York as a truck-
ing company. In the course of its business Precon annually transports across State
lines products valued in excess of $50,000.
Con Edison is a New York corporation engaged in the business of furnishing
public utility service. In the course and conduct of its operation Con Edison an-
nually receives gross revenues in excess of $1,000,000.
I find that Precast, Precrete, Concrete Conduit, Precon, and Con Edison are
engaged in commerce within the meaning of Section 2(6) and (7) of the Act
B. The "single employer" issue
Respondent contends that Precast, Precrete, and Concrete Conduit, which manu-
facture prefabricated concrete products used in construction work, and Precon
which transports the products manufactured, are a "single employer" within the
meaning of Board decisions. General Counsel takes the position that the relation-
ship of the companies is "irrelevant" but argued, nevertheless, that the location of
union pickets at the manufacturing companies rather than at the trucking company
during one stage of the strike is evidence of the Union's illegal object. If this is
so, then the single or multiple nature of the companies is relevant and material
for if they constitute a "single employer" within the meaning of the cases then
the Union could picket any of the four under the same conditions as govern
primary picketing generally.'
Precast, Precrete, Concrete Conduit, and Precon are commonly owned and con-
trolled. The principal stockholders in each are Innis O'Rourke, his father and
brother, and Vincent De Napoli and Vincent Tully. With very minor variations
the officers of the four companies are the same and they have the same board of
directors. Innis O'Rourke is president of Precast, Precrete, and Precon and vice
president of Concrete Conduit. O'Rourke is the operating head of all four com-
panies and makes all policy decisions regarding labor relations. He also makes all
other policy decisions subject to approval of the board of directors.
As indicated above the three manufacturing companies are all engaged in es-
sentially the same line of business and Precon is the transportation arm of the
business. About 95 percent of Precon's total business is obtained from the trans-
portation of the manufacturing companies' products.
I International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Work-
ers of America, AFL-CIO, Local No. 366 (Adolph Coors Company), 121 NLRB 271, 276,
enforcement denied 272 F. 2d 817 (GA. 10).
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to November 1959 the manufacturing companies made deliveries with
chauffeurs on their respective payrolls and were under contract for the chauffeurs
with the Union. Precon was formed in November 1959 to provide trucking serv-
ices for the manufacturing companies and the Union then signed an agreement
with Precon covering the same classification of employees previously covered by
the agreement with the manufacturing companies, namely, chauffeurs.
James Harlin, who negotiated with the Union in the instant case, is superintendent
of Precon and Precast and in the past has been superintendent of each of the four
companies at some time. He reports directly to Innis O'Rourke. The four com-
panies are all located in the same general area.
I find that Precast, Precrete, Concrete Conduit, and Precon constitute a single
employer within the meaning of the Board decisions interpreting the Act .2
II. THE LABOR ORGANIZATION INVOLVED
Respondent, Local 282, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the mean-
ing of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background of the dispute and events prior to the strike
The labor dispute and alleged unfair labor practices in this case are substantially
rooted in the method by which the manufacturing companies' 3 products are de-
livered to their customers When the manufacturing companies bid on a job they
offer the customers an option of delivery by the manufacturer or of picking up
themselves. If the customer elects to have the material delivered the manufacturer
adds the cost of delivery to the bill.
Con Edison is the largest customer of the manufacturing companies. In the
last year 70 percent of Concrete Conduit's and .90 percent of Precast's business was
with Con Edison. Once a year Con Edison's construction department estimates the
amount of prefabricated concrete it will need for a period of from 12 to 15 months
and notifies the purchasing department to make term contracts with the manu-
facturing companies. Term contracts are in evidence and were in existence at the
time of the events described in this case. The contracts provide, and it is Con
Edison's general practice, to pick the prefabricated material up with its own equip-
ment at the manufacturer's yard. However, about 10 percent of the materials
purchased by Con Edison are delivered by the manufacturers.
Prior to February 1961, Consolidated Telegraph and Electrical Subway Com-
pany, herein called Subway Company, was engaged as a wholly owned subsidiary
of Con Edison building underground structures in the boroughs of Manhattan and
Bronx for the Edison Company. Subway Company purchased concrete products
from the manufacturing companies and the employees of the manufacturing com-
panies delivered the products to the jobsites and yards of the Subway Company.
In February 1961 Subway Company merged with Con Edison and since that time
the trucking of products and materials formerly utilized by Subway Company has
been done by trucks belonging to Con Edison.
After Precon was formed in November 1959 a contract with Respondent Union
was executed covering the chauffeurs previously employed by the manufacturing
companies. These employees had also been members of Respondent and covered
by contract while employed by the manufacturing companies. Twelve drivers appear
on Precon's seniority list and are involved in this case.
According to James Harlin, superintendent of Precon and Precast, company
truckdrivers first expressed their discontent about the impact on them of the com-
panies' delivery practice in February 1961. Harlin testified without contradiction
that John Brady, shop steward, told him that the drivers felt that "they were losing
a great deal of time" because "Consolidated Edison was hauling the greater per-
centage of the product. Brady asked Harlin if Precon could make "some effort to
see that the men were more steadily employed by taking over some of the trucking
that Edison was doing." Harlin explained to Brady that the manner of delivery
was controlled by Con Edison by contract. He suggested to Brady that he consult
the Union's business agent and bring the matter up in a more formal way.
9 Alexander Warehouse A Gales Company, 128 NLRB 916
sAlthough I have found the manufacturing companies and the trucking compsnv to be
a single employer within the meaning of the Act , they will sometimes be referred to for
the purpose of clarity as the manufacturing companies or trucking company as the case
may be
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1081
Sometime in March 1961, William McKee, business agent for Respondent, ap-
peared at the Precon garage and spoke with the drivers. McKee then met with
Superintendent Harlin and, according to Harlin, spoke along the same lines as
Brady previously had. Regarding this conversation, and all subsequent conversations
between the parties, the witnesses in their testimony tended to emphasize those facts
which supported their respective theories of the case. The employer witnesses, for
example, stressed any mention of Con Edison, and Respondent's witnesses under-
scored the drivers' concern about loss of work without any particular reference to
what companies or employees were actually doing the work. Since the Act interdicts
conduct where "an object" is the cessation of business with another the emphasis is
understandable but sometimes confusing.4 In any event, regardless of the "object"
of the Union in its demands and strike discussed below, realistically Con Edison's
business dealings with the manufacturers were ever present in the minds of all parties
and were discussed by them. The legal effect of this remains to be seen but must
be kept in mind in finding the basic facts.
About the Harlin^McKee conversation in March 1961, I find as follows: McKee
told Harlin that the drivers had complained about not getting enough work. He then
told Harlin that he had an understanding going back many years with a Mr. Murphy
of the construction department of Con Edison that maintenance work would be done
by drivers of Con Edison but that delivery to new construction work by members
of Respondent Local 282. Harlin told McKee if such agreement existed McKee
should get in touch with Con Edison and not the manufacturing companies. McKee
asked Harlin to speak with O'Rourke and "any of the contractors, including Edison
" in an effort to determine if Precon's drivers could get more work. Harlin
protested that the manufacturing companies were in no position to decide how their
products were to be delivered since they had contracts with Con Edison which had
a substantial period of time to run. Harlin suggested that McKee meet with
President Innis O'Rourke and view the purchase orders which controlled the com-
panies' method of delivery.
Later that morning McKee met with Harlin and O'Rourke and was shown typical
purchase orders regulating the delivery of the products. McKee again mentioned
his alleged agreement with Murphy of Con Edison and made an unsuccessful at-
tempt to reach him by telephone from O'Rourke's office. McKee and O'Rourke
discussed the possibility of having the manufacturing companies' drivers transport
material which Con Edison transported with its own drivers and trucks and O'Rourke
said he would talk to Con Edison representatives to see if such an arrangement could
be made.
About 3 weeks later Harlin asked McKee if he had been able to reach Murphy
about the delivery problem but McKee replied that he had been unsuccessful. In
this conversation McKee told Harlin, according to Harlin that he had instructed
the trucking company's drivers to follow Con Edison trucks to the delivery point
to determine whether the job was being done by a general contractor and to report
to him so that McKee could make an effort "to do something about the delivery
of the products," such as picketing the jobsite. McKee admitted his suggestion about
following trucks but denied any reference to picketing. Employee Dolan, one of
Respondent's witnesses, admitted that the remark about picketing was made by
McKee and I find that it was. No strikes or picketing involving construction work,
however, occurred.
B. Negotiations for a new contract, the demands involved therein, and the strike
of July 3, 1961
The Union's contract with Precon covering the drivers expired on June 30, 1961.
On June 26 and 28, 1961, the Union represented by Business Agent McKee, and
employees Dolan and Bukowski, members of the wage committee, met with James
Harlin to negotiate a new contract. During the negotiations the parties agreed upon
all important issues except wages and certain union proposals relating to the method
of delivery of the Company's products. On the following day, June 30, 1961, the
Company presented a counterproposal which was voted on by the drivers. The
employees were willing to accept the Company's monetary proposal but turned the
full counterproposal down because it did not contain adequate coverage of their
demands concerning the delivery of the Company's products. On July 3 the Union
struck and picketed the premises of the Company effectively stopping delivery.
N.L.R .B. v. Denver Building and Construction Trades Council et al (Gould & Preisner),
341 U . S. 675, 689 ; Retail Clerks Union Local 770, et al, v. N.L.R .B., et al., 296 F. 2d
368 (C .A D C.).
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel alleged in his complaint that the Union in its negotiations
demanded and on July 3 struck for certain clauses in violation of Section 8(b) (4) (i)
and (ii) (A) and (B) of the Act .5
The clauses as set forth in paragraph 11 of the complaint are:
(a) All men and equipment hired must have agreement with Local 282,
I.B.T. Any work sublet by employer must be delivered by Employer's trucks
and employees.
(b) Employer shall not employ additional drivers and helpers or any utility
corporation trucks nor shall Employer employ outside truckmen or outside
drivers unless drivers and helpers on Employer's seniority list with suitable
equipment are working, nor shall any material leave the yard until such men
are working. No Hi-Lo is to operate outside the yard unless seniority list is
exhausted.
At the outset there is a dispute about what demands were actually in issue at the
time of the strike which must be resolved before the legal consequences of the de-
mands can be considered.
The Union concedes that provision (b) of paragraph I1 of General Counsel's
complaint, set forth above, was demanded by it as a condition of a new contract
but denies that the provision "All men and equipment hired must have agreement
with Local 282, I.B.T." was an issue in or a cause of the strike. I find in accord-
ance with the Union's contention for the following reasons.
In the first place, I think it likely that a lack of precision existed in the negotiations
and the conversations of the parties immediately prior to the strike caused by para-
graph numbering of the Union's major demands and subsequent changes in their
numerical designations. Whether or not this actually happened, I am convinced
that by the time the witnesses testified at the hearing in this case some of them
were thoroughly confused by the numerical headings of the proposals in issue.
The Union's demands which are in issue here were first entered in an ordinary
copybook by employees as paragraphs numbered 14 and 16 and given to McKee who
added some language of his own to paragraph numbered 16.
5 The pertinent sections of the Act provide:
8(b) It shall be an unfair labor practice for a labor organization or its agent-
s * * * x e
(4) (1) to engage in, or to induce or encourage any individual employed by any per-
son engaged in commerce or in an industry affecting commerce to engage in, a strike
or refusal in the course of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, material's, or commodities or to per-
form any services; or (ii) to threaten, coerce, or restrain any person engaged in com-
merce or in an industry affecting commerce, where in either case an object thereof is
(A) Forcing or requiring any employer to enter into any agreement which is
prohibited by Section 8(e) ;
(B) Forcing or requiring any person to cease using, selling, handling, transporting,
or otherwise dealing in the products of any other producer, processor, or manufac-
turer, or to cease doing business with any other person,
Section 8(e):
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling, trans-
porting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person, and any contract or agreement entered
into heretofore or hereafter containing such an agreement shall be to such extent
unenforcible and void: Provided, That nothing in this subsection (e) shall apply to
an agreement between a labor organization and an employer in the construction
industry relating to the contracting or subcontracting of work to be done at the site
of the construction, alteration, painting or repair of a building, structure, or other
work, Provided further, That for the purposes of this subsection (e) and section
8(b) (4) (B) the terms "any employer", "any person engaged in commerce or an
industry affecting commerce" and "any person" when used in relation to the terms
"any other producer, processor, or manufacturer,", "any other employer", or "any
other person" shall not include persons in the relation of a jobber, manufacturer,
contractor, or subcontractor working on the goods or premises of the jobber or manu-
facturer or performing parts of an integrated process of production in the apparel
and clothing industry: Provided further, That nothing in this Act shall prohibit the
enforcement of any agreement which is within the foregoing exception
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1083
When negotiations began the copybook was in the possession of both sides and
McKee bargained on the basis of the old contract and the demands in the book.
As he read out proposals Harlin made notes as did McKee. Harlin's original set
of notes are in evidence. On direct examination Harlin testified from his original
set of notes and stated that the cause of the strike was the Union's insistence of
paragraphs numbered 22 and 24 of his notes. Paragraph numbered 22 appears to
be essentially provision (b) in paragraph numbered 11 of the complaint and Harlin's
24 read "All men and equipment hired must have agreement with Local 282."
However, Harlin had drawn a line in his notes from paragraph numbered 24 to
paragraph numbered 25. The latter paragraph read, "Any work sublet by employer,
his trucks and men to deliver." Harlin testified that, in his view, paragraphs num-
bered 24 and 25 amounted, in substance, to one and that by drawing the connecting
line it was his intention to make them one.
During Harlin's cross-examination it appeared that Harlin had subsequently made
a second set of notes during the bargaining setting down the Union's demands. Un-
fortunately, however, Harlin had renumbered the controversial demands as para-
graphs numbered 24 and 26 and used number 24 twice. Paragraph numbered 26
in this set of notes is the demand about work "sublet." One paragraph numbered
24 is the demand "All men and equipment hired must have agreement with Local
282" but another paragraph, also numbered 24, is the demand which is essentially
provision (b) of paragraph numbered 11 of the complaint.
Paragraphs numbered 24 and 26 of McKee's bargaining notes are essentially
the same as Harlin's second set except that McKee has the provision "All men
and equipment hired must have agreement wtih Local 282" as the last sentence
of his paragraph numbered 24 which is the paragraph restricting the pick up of
company products by outside companies unless certain conditions are met. To
compound the chance of confusion there is in evidence an exhibit used in the Sec-
tion 10(1) injunction proceeding which purports to the Union's proposals 24 and 26
used in the negotiations but this exhibit contains no reference at all to the pro-
vision "All men and equipment hired must have agreement with Local 282."
Harlin insisted in his testimony that McKee and the employees rejected the com-
pany counterproposal because it did not contain the Union's proposal that "All men
and equipment hired must have agreement with Local 282 " I think he was
confused by the paragraph numbers given the proposals as well as the habit those
involved developed of referring to proposals by number rather than content. Har-
lin first testified, using his original notes, that McKee turned the Company's counter-
proposal down because it did not contain 22 and 24. But by the time the counter-
proposal was made, which was after the second bargaining session and just before
the strike, Harlin had renumbered the paragraphs in question to 24 and 26 and
McKee had done the same. The probability, therefore, is that when McKee ob-
jected to the Company's failure to include paragraphs in its counterproposal by
number it had to be paragraphs numbered 24 and 26 and not 22, 24, or 25, for
those numbers were no longer being used as paragraph designations In this view,
McKee's refusal of the Company's counterproposal because it did not contain para-
graphs numbered 24 and 26, as Harlin subsequently testified, could logically be
based on the omission from the counterproposal of the provision "Any work sublet
by our Employer our trucks and men shall do the trucking." (Paragraph num-
bered 26 of McKee's notes and Harlin's second set) and a longer clause, as set
forth in General Counsel's complaint, to the effect that the Company could not
employ outside utility trucks until its men and equipment were employed (paragraph
numbered 24 of McKee's and Harlin's second set of notes). The last restriction,
as all parties agree, was the major issue in the bargaining and remains so today,
and it is most likely that McKee was referring to it rather than anything else. It
is true that McKee's paragraph 24 did contain a reference to using only Local 282
men but I find that this problem had dissolved in the bargaining, at least by the
time the Company made its counterproposal on the morning of June 30.
McKee testified that he dropped the "Local 282" demand very early in the
negotiations when Harlin questioned its legality. I do not accept his version entirely
for, as stated, his notes show that such demand was still alive during the June 30
bargaining. However, the Company in its counterproposal offered that the con-
tract contain a provision that all men and equipment hired be covered by contract
with the "Teamsters " The record shows that thereafter there was no objection
to this counterproposal or any discussion of it on the morning the employees voted
on the company counterproposal. In my opinion, this issue, which was only a
minor one at best in the light of the other provision concerning the delivery prob-
lem, dropped out of the case. Indeed, O'Rourke testified that the "Local 282"
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter was not a real "bone of contention" but that the real issue was the provision
about utility corporations picking up purchased products.
Finally, it is significant that Harlin did not testify in the injunction case in district
court that the "Local 282" provision was a cause of the strike even though he was
asked, and the exhibit headed "Union Proposal" used in the injunction proceeding
makes no reference to the Union's "Local 282" demand.
I find, therefore, that General Counsel has not established by a preponderance
of the evidence that Respondent threatened to strike or did strike for the clause
"All men and equipment hired must have agreement with Local 282, I B.T."
The Union concedes that it demanded and struck for inclusion of clause (b)
in the contract as alleged in paragraph numbered 11 of General Counsel's com-
plaint set forth above. It contends, however, that the Union's purpose was to
achieve job protection of the job opportunities of the employees employed by
Precon in the collective-bargaining unit and that the strike was, therefore, a lawful
primary strike that involved only lawful primary picketing.
It is the position of the General Counsel that the clause, taken in context with
the "dispute" between the Union and Con Edison, and in the light of Respondent's
explanation of the purpose of the clause, is proscribed by Section 8(e) of the Act.
He argues that the clause, "if implemented in accordance with Respondent's stated
purpose, would not have the effect of preserving for the unit of Precon chauffeurs
work traditionally or regularly performed by said employees; rather the agreement
sought by Respondent would have the effect of forcing Precon and the three manu-
facturing companies involved herein to cease doing business with Con Edison unless
Con Edison agreed to accept deliveries by Precon employees instead of continuing
to use its own drivers to pick up the concrete materials. Therefore, by threatening
Precon officials with a strike and picketing and by engaging in a strike and picket-
ing . . . with an object thereof to force and require Precon to enter into an agree-
ment . . ." containing the clause in question and to force Precon, Precast, Precrete,
and Concrete Conduit to cease doing business with Con Edison and other persons,
Respondent, he asserts, violated Section 8(b)(4)(i) and (ii) (A) and (B) of the Act.
It is probably an oversimplification to say that the Union had a "dispute" with
Con Edison and that the manufacturing companies were "neutral" or that Con
Edison was the "primary employer" and the others "secondary." Treatment of cases
arising under Section 8(b)(4) of the Act readily leads to semantic excursions. So
danger also lies in a quick determination of whether the employees' purpose in
striking was "job protection" or had as "an object" disruption of their employer's
business dealings with Con Edison. It seems to me that in a real sense both con-
siderations were in mind, as they must have been, for the employees were not blind
to Con Edison and others picking up materials while they remained idle .6
Considering the employees' and their own employers' relationship it must be
recalled that the first expression of a grievance was in Shop Steward Brady's com-
plaint to Harlin in February 1961 that the men were "losing a great deal of time"
and his request that the employer make some effort "to see that the men were more
steadily employed. ." In addition, the factors which control the employees wages
and other benefits under their collective-bargaining contract must be stressed. The
drivers are required to report for work and to "shape up" for work at the employer's
premises every day in order to remain on the seniority list. If there is no work
for them when they report they are not paid for that particular day Moreover.
the number of days worked by an employee in a certain period of time as, for
example, a week, a quarter, or a year, determines his eligibility for benefits such
as holiday pay, pensions, vacations. and hospitalization.
Durinrz the vacation year 1960 and 1961 certain drivers found that they had
worked fewer days than in the previous year. Although the men shaped up steadily
they were not used but customers came to the premises with their own equipment
and picked up the product. Some of the loss of employment may have been
attributable to bad weather. but there is no doubt, and I so find. that Con Edison
picked up products after its mercer with the Subway Company that the emnlovees
of Precon would have delivered but for the merger. The losses to the employees were
real and whatever their causes the employees had a legitimate interest in trying to
protect themselves against any additional losses, and, indeed. to secure more work
for themselves if they could In this sense the employees had a real grievance vis-a-
vis their own employer. The men complained of this problem among themselves
as well as to their employer, and also told Business Agent McKee about it who told
them to wait until contract negotiations. The drivers had a meeting and drew up
O Testimony of Dolan, Hart, and Bukowski. Although economic necessity may not
Justify violations of the Act as General Counsel states in his brief, it certainly, in my
view, Is evidence bearing on motive.
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1085
certain demands aimed at the delivery problem which they turned over to McKee.
McKee added a few words to one of the demands and, in substance , they appeared
in ,the subsequent bargaining as the clause (b) set out above which General Counsel
contends is prohibited by section 8(e) of the Act.
On the other hand, despite the root of the clause in the drivers' grievance against
their own employer , it appears that from the beginning the employees and their
representative inevitably connected their problem to Con Edison and sought to cure
it through Con Edison . Brady not only told Harlin that the men were losing work
but asked him to see if the Company could alleviate the problem by "taking over
some of the trucking that Edison was doing." When McKee first spoke with Harlin
in March 1961 about the drivers' complaints he told Harlin that he had an agreement
with Joseph Murphy, an official of Con Edison, that Local 282 men would haul
materials to new construction work being done by Con Edison . McKee also told
O'Rourke about this alleged understanding and asked O'Rourke to call Con Edison
and arrange to have Precon do more of the trucking work. O'Rourke told McKee to
make the contact with Con Edison himself which McKee tried to do but he was
unable to reach Murphy. In the same conversation McKee told O'Rourke that if
Con Edison persisted in picking up all its product he would tie up the construction
work by pulling off Redi-Mix trucks. McKee at another time told Harlin that he
had advised the Precon drivers to follow Con Edison trucks to construction jobs
with a view to picketing the general contractor in order to stop Con Edison from
delivering .the product.
In addition to the above evidence of awareness of Con Edison's place in the
picture, Con Edison and the delivery problem were discussed by both sides in the
June negotiations. Moreover, when the men voted down the Company's counter-
proposal McKee discussed the men's reasons with O'Rourke. O'Rourke told him
that he had a problem with Con Edison and then McKee and O'Rourke spoke on the
telephone with Gerald Hadden, vice president of Con Edison, and McKee offered to
meet with Hadden to work out any difficulty between Con Edison, O'Rourke, and
the Union. Hadden refused to meet and told O'Rourke that Con Edison would
continue to pick up under their contracts.
It is also undisputed that the employees and McKee knew from the beginning
that Con Edison had contracts with the manufacturing companies running for a
substantial period of time which gave Con Edison the right to pick up the concrete
products, and that Con Edison was insisting on performance under these agreements.
Harlin told the employees about the purchase orders and O'Rourke showed them to
McKee before the strike. McKee testified that when shown the purchase orders
"I was amazed and I saw justification for their problem."
It would appear, therefore, on the basis of the above recital, and prior to analysis
of the language of the Union's proposal and its operational effect, that not only did
the employees have a real and not fictitious grievance with respect to the hauling
of their employer's product but that they were aware prior to the strike that an
effective solution of the problem appeared blocked by Con Edison's contractual
arrangements with their employer and its general practice of picking up the purchased
material.
The language in the clause in question was admittedly drafted to meet the com-
plaint of the men about loss of work caused by customer pickups. McKee added to
the employees' original copybook draft the words appearing in clause (b) above
"or any utility corporation trucks." Although the word "employ" was used in re-
stricting the use of "utility corporation trucks" it was agreed at the hearing that the
companies did not in the technical sense "employe" utility corporation trucks and
that the restriction was on the manufacturing companies permitting utility corpora-
tions or other companies to pick up material with their own equipment under certain
circumstances . It was also clear from the testimony of all witnesses that Con
Edison was the principal offender involved in the problem.
Unless certain conditions were met the language and intent of the clause were
all restrictive. It states "nor shall any material leave the yard." If those conditions
were not met and any outside company came into the yard to pick up material it
would be a breach of the agreement according to McKee.
The condition that had to be met before "any material [could] leave the yard"
was that all drivers on Precon's seniority list "with suitable equipment " must be
employed. Precon had 12 drivers on the seniority list. It had about eight or nine
large pieces of equipment "suitable" for delivery of its concrete products and also two
or three concrete mix trucks normally used in the yards. There is a dispute about
whether it would have been necessary that all concrete trucks be working in certain
events, but it is clear that the eight or nine pieces of equipment suitable for delivery
of the manufacturing companies' products would have to be working ,and manned
by employees in the unit before any customer could pick up material. This require-
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment would necessarily prevent outside companies from "doing business" with the
manufacturers in some measure by preventing them from picking up whenever any
piece of suitable equipment was idle. According to the men they and ,the equipment
were frequently idle.
Moreover, in the case of Con Edison the disruption would be inevitable and sub-
stantial, if not total. Con Edison's operations must be considered here. As set
forth above, Con Edison is the largest customer of the manufacturing companies and
dollarwise, 60 percent of prefabricated concrete used by Con Edison in its operations
is purchased from Precast, and 40 percent from Concrete. Con Edison makes long-
term agreements with the manufacturing companies and notifies them when it needs
the material. Con Edison hauls normally with its own trucks and the reason for this
was explained by Fred C. Shaughnessy, general manager of the Outside Plant Con-
struction department of Con Edison. He testified that Con Edison operates about
150 heavy hauling trucks, driven by members of the Utility Workers Union of
America, and that these trucks are scheduled 24 hours a day and 7 days a week to
make deliveries to various sites within the city. He explained further that Con
Edison's operations required close scheduling with other trades. He testified, "We
employ about 1500 people in the construction side of the business, and many of our
jobs are coordinated so integrated with the electric and gas system that these truck
deliveries may be made at any time during the day or Saturday or Sunday." He
added that an additional reason for Con Edison's use of its own trucks is that when
they drop their loads at the construction site they bring back other equipment.
It would appear, therefore, that Con Edison would logically insist, as it did, that
the manufacturing companies live up to the agreement in the purchase orders per-
mitting Con Edison to deliver its own purchases. The Union's clause in question, if
enforced, would, in view of the substantial amount of Con Edison's requirements,
and the operational necessity for picking up concrete construction materials as they
had in the past, result in the manufacturing companies violating their long-term
agreements with Con Edison thereby substantially disrupting their business rela-
tions with Con Edison, or could result in Con Edison looking elsewhere for the
products it needed. In either case the manufacturing companies would have been
caused to stop doing business with Con Edison.
But the questions still remain whether in view of the Union's legitimate interest
in protecting the jobs of its members "an object" of its demands and strike was under
the Act the cessation of business by its employer with Con Edison and other per-
sons and whether clause (b) is the type of agreement outlawed by Congress in
Section 8(e). I think, in the circumstances of this case, that the Union must be held
to have had as "an object" the disruption of business relations between its employer
and Con Edison and also to have struck for an agreement which is prohibited by
Section 8(e) of the Act
Respondent Union contends that "Precon's practice of granting a lower price to its
customers to induce them to make their own deliveries is plainly a method of farm-
ing out the delivery work. It makes no essential difference whether such practice be
designated `contracting out' or be labeled otherwise. In essence, it is a use of other
persons to perform the work of delivery. The price differential represents the amount
paid by the employer in lieu of wages to his employees." In a sense the Union argues,
therefore, that the clause is like the normal provisions against subcontracting. Start-
ing with that premise, it urges that clauses relating to subcontracting were mandatory
subjects of collective bargaining under the National Labor Relations Act prior to its
amendment by the Labor-Management Reporting and Disclosure Act of 1959, and
that if this is so, then a strike to secure a provision restrictive of subcontracting
would not have run afoul of Section 8(b)(4) of the Act. When Congress wrote
Section 8(e), the argument continues, it intended to outlaw "hot cargo" clauses which
it considered loopholes permitting unions to evade the existing provisions outlawing
secondary boycotts but did not "intend to outlaw clauses that are intended to safe-
guard the economic interest of a primary employer's employees for the purpose of
increasing their employment opportunities by limiting that employer's right to con-
tract out work."
I am in general agreement with the Union's analysis of the law prior to the Lan-
drum-Griffin amendments and the effect of the amendments an subcontracting clauses
and the Board seems of the same view.? While I do not believe that the clause
On the question of the duty to bargain see The Timken Roller Bearing Company, 70
NLRB 500; Fiberboard Paper Products Corporation, 130 NLRB 1558. Timken Roller
Bearing was cited with approval in Teamsters Union v. Oliver, 358 U.S. 283, 295. See
also Butchers' Union Local 563 Amalgamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO [Huntington Meat Packing Company, d/b/a Oxford Meat Co.]
(Monarch Building Maintenance Co.), 134 NLRB 136, and Milk Drivers and Dairy Em-
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1087
in question is the conventional restriction on subcontracting it has such an aspect be-
cause the Union is substantially motivated by a desire to maintain and secure work
for the members of the bargaining unit. But even using the subcontracting analogy-
which is the one most favorable for the Union-I think that the agreement sought
and the strike to secure it are interdicted in the circumstances of this case. In com-
ing to this conclusion I am guided by certain principles suggested by the Board in its
decision in Milk Drivers and Dairy Employees Union, Local No. 546, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Minnesota Milk Company), 133 NLRB 1314. There the Board said:
Finally, we do not agree with the broad conclusions of the Trial Examiner
that Section 8(e) bars all agreements prohibiting the subcontracting of work.
The Trial Examiner states:
It is clear from this legislative history that Congress clearly intended
as a matter of public policy thereby [the enactment of Section 8(e)] to
outlaw not only traditional "hot cargo" clauses in contracts made by the
Teamsters and other unions in the transportation industry, but beyond that
all similar clauses which directly or indirectly required an employer to
cease doing business by contract, subcontract or in any other manner, with
any other person.
We find no justification in .the statute for so sweeping a generalization. With
respect to contracts and agreements prohibiting an employer from the con-
tracting or subcontracting out of work regularly performed by his employees
we shall examine each such contract or agreement as it comes before us. The
language used , the intent of -the parties and the scope of the restriction vary
greatly in such agreements and each must meet scrutiny in terms of the statutory
restraint on its own. We have already indicated types of agreements which
clearly violate 8(e) in American Feed Company (129 NLRB 321) and
Amalgamated Lithographers of America (Ind.), (130 NLRB 985) and we
shall continue to enunciate principles of guidance as the cases reach us.
With due regard for the Board's warning that not all agreements preventing an
employer from doing business with another are prohibited by Section 8(e) of the
Act the clause in question must be examined in the light of the principles suggested
by the Board.
The language of the demand is inartistic but clear. No one had any difficulty
in interpreting it at the hearing. It states: "Employer (Precon, Precast, Precrete
and Concrete Conduit) . . . shall not employ (use) . . . any utility corporation
trucks (Con Edison or any other public utility) unless . (all) drivers . . . on
Employer's seniority list with suitable equipment are working. .
The intent of the Union is clear, but it is dual. As set forth above, the Union's
purpose was to secure more work for the drivers on the seniority list but necessarily
it intended to accomplish its purpose by stopping the manufacturing companies
from doing business with Con Edison and others in the manner in which the
manufacturing companies and their customers had done business for many years.
The scope of the restriction is broad. No "material shall leave the yard" unless
the conditions are met.
To this point the "principles of guidance" are not too enlightening. In any well-
drafted restriction on subcontracting of work, it seems to me, the language will be
clear, the intent dual, and the restriction broad enough to achieve the result intended.
Moreover, if by the "scope of the restriction" and the "intent" the Board means a
purpose to prevent the utilization of another employer based on considerations
relating to the union affiliation of the latter's employees (the evil found in typical
"hot cargo" agreements),8 then the Union cannot be faulted under that principle for
it did not intend Con Edison, or any other company, to pick up under any conditions
related to the union affiliations of their employees.
ployees Union, Local No . 546, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America ( Minnesota Milk Company ), 133 NLRB 1314, dis-
cussed in the text of this report.
8 See Highway Truck Drivers and Helpers, Local 107, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, Independent (Gallagher 6
Sons ), 131 NLRB 925 ; Amalgamated Lithographers of America (Ind) and Local No. 17,
etc. (The Employing Lithographers, at al. ), 130 NLRB 985; Butchers' Union Local 563,
Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO ( Hunting-
ton Meat Packing Company, d/b/a Oxford Meat Co.] ( Monarch Building Maintenance
Co.). 134 NLRB 136.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand some help is found in the Board 's statement in Minnesota Milk
Company that it will examine each agreement "prohibiting an employer from the con-
tracting or subcontracting out of work regularly performed by his employees. .
[Emphasis supplied .] The case at bar does not involve a jurisdictional dispute under
Section 8 (b)(4)(D) of the Act in the conventional sense, but in the broad view it
does involve allocation of work among Con Edison drivers and Precon drivers, and
so equitable and practical considerations as between the two classes of drivers
may not be irrelevant. Although Precon's drivers deliver some of the Con Edison
purchases, Con Edison picks up 90 percent of its purchases with its own men and
equipment and has done business with the manufacturers in this manner for almost
30 years. Although Subway Company work formerly delivered by Precon's em-
ployees is now picked up by Con Edison there is unrefuted testimony that Con
Edison has given Precon drivers more work than it did in the past. Therefore,
although traditionally Precon's drivers have done part of the work, traditionally
Con Edison drivers have done the greater part and the Union's intent is not to hold
on to what it has but to prevent Con Edison and its drivers from continuing to work
as they have historically. In this view the work sought by Precon drivers is not
traditionally theirs but is as much , if not more, traditionally and equitably the work
of others. In addition, I feel that there is an equitable and practical difference in
striving to maintain conditions in a bargaining unit as they are for the life of the
agreement and in seeking to disrupt an existing arrangement determined by existing
contracts of reasonable duration.
Moreover, under a typical subcontracting arrangement the principal employer
is free to choose when, how, and with whom he shall do business. He need not
subcontract work at the risk of having it done under substandard conditions and the
company which takes such work does so normally with knowledge that others have
done it and in a measure "allies" itself with the employer who contracts out. Here,
however, .the manufacturing companies have no real choice in the matter for the
customers determine the method of delivery and they are motivated solely by the
operational necessities of their business and not by any considerations of aiding
the principal employer. The only real choice the manufacturer has is to do business
the way the customer wants or not at all, and the customer, based on its historic
practice of doing business , is in no sense an interloper.
Finally, in the typical no-subcontracting arrangement unions seek to preserve work
for their members (or insure that it is done under union conditions) with no
intention of interfering with the totality of the employer 's business or the jobs
of other employees in different bargaining units of the employer. If the object
is achieved there is no appreciable harm to the principal employer, employees in
other units , or innocent third party employers. The manufacturing companies in
this case employ hundreds of production employees in other bargaining units. Here,
although the drivers if successful might have obtained work that outside employees
were doing, it is also conceivable that because of the nature of Con Edison's opera-
tions it might have to look elsewhere for the products it needs. This would destroy
the very business and the jobs which the drivers seek to preserve, as well as the jobs
of those in production, and would disrupt the business of a third party which is
legally "neutral."
Based upon the above considerations and analysis and upon the entire record in
the case, it is my opinion that the Board would find the clause in question prohibited
by Section 8(e) of the Act, and I so find.
The Union concedes that it struck for the clause in question and the record shows
that McKee told Harlin and O'Rourke in their last meeting before the strike that
the Union would strike unless the employer agreed to the clause . The Union's
ultimate object was not only to secure the prohibited agreement but also to require
the employer to cease doing business with Con Edison and other persons. I find,
further, that by threatening to strike and picket and by striking and picketing for
the objects described Respondent violated Section 8(b) (4) (i ) and (ii) (A) and (B)
of the Act.
C. The provision restricting "subletting"
It will be recalled that the complaint alleged in paragraph numbered 11(a) that
the Union demanded and struck for the following clause:
All men and equipment hired must have agreement with Local 282, I.B.T.
Any work sublet by Employer must be delivered by Employer 's trucks and
employees.
Considerable testimony was taken about the first sentence of the clause but hardly
any about the second. It was my impression at the hearing that General Counsel
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1089
was not seriously urging the impropriety of the "subletting" clause or that, in any
event, it was not a significant part of his case. His brief contains no discussion of
the subject , and it is my opinion that if the clause was ever in issue it has now been
abandoned by General Counsel.
Counsel for the Charging Parties in his brief , however, contends that the "sub-
letting" provision contravenes Section 8 (e) of the Act . In my opinion the record
was not well enough developed to make this issue , if it is one, ripe for decision within
the meaning of the Board 's Minnesota Milk Company case. There is little evidence
in the record to show how the restriction would operate or was intended to operate
in practice . As a matter of fact, Harlin , the employer 's negotiator , testified that
he did not understand the demand and that the Company did not "sublet" work.
Although an employee testified another concrete company delivered a product made
under subcontract with the principal company, Harlin denied it.
In addition , although the Union does not deny that it sought such a clause, the
whole tenor of Harlin 's and O 'Rourke's testimony was that there were only two
issues in the strike and they were the Union 's insistence on the clause: "All men and
equipment hired must have agreement with Local 282, I.B.T.," and the longer clause
about exhausting the seniority list before customers could pick up. Where the
employer involved is ignorant of the meaning of the provision and asserts other
issues as causes of the strike, and the General Counsel seems to have abandoned
the claim of illegality, if he ever asserted it, rational interpretation of the meaning
and effect of the provision seems precluded.
In any event , I do not think the provision on its face is illegal . There is no re-
striction on the manufacturers ' right to have another manufacture its products under
subcontract . All that is required is that if it chooses to subcontract it must provide
in the agreement that its own drivers shall deliver . I see here none of the objec-
tionable features described in the treatment of the clause found illegal . Calorator
Manufacturing Corp., 129 NLRB 704 , and cases like it are , in my opinion , inapposite.
In those cases the Union sought to restrict the subletting or other business dealings
to firms under contract with the union or maintaining union standards . This is not
so here.
I find that General Counsel has not established by a preponderance of the evidence
that the Union violated the Act by its insistence upon the provision in question even
to the point of striking for it.
D. The Union's revised demand
On or about July 14, 1961 , Respondent modified the demand set forth in the clause
which I have found to be prohibited by Section 8(e) as follows:
All work related to deliveries of products manufactured by or for the Em-
ployer shall be performed by drivers and helpers on the seniority list provided
for in this agreement under the terms and conditions of this agreement. Pro-
vided that:
(1) if all drivers and helpers on the seniority list are working, or
(2) if all equipment suitable for the deliveries owned by the Employer
is in operation,
work related to deliveries of the Employer's products may be made by persons
other than those on the seniority list provided for in this agreement. Pursuant
to the foregoing no Hi -Lo's will be operated outside the Employer 's yards except
in accordance with the terms of proviso . . . of this section.
By letter dated July 19, 1961 , from the Union 's attorney to O'Rourke, a subsection
was added to the above as follows:
If work related to the deliveries of the Employer 's products is performed by
persons other than those on the seniority list provided for in this agreement,
in violation of this section ; then the damages payable by the Employer shall be
limited to a regular day 's pay, in accordance with Section 1 hereof, of the
employee or employees who would have performed the work but for the viola-
tion of this Section.
When the revised demand was presented to O'Rourke he told McKee that the
demand was unacceptable because it did not change what the Union had been
asking for . No one from the Union undertook to explain to O'Rourke what dif-
ferences , if any, there were in the operation of the revised demand . After the sub-
mission of the revised demand, McKee asked O'Rourke to contact Con Edison and
arrange a meeting so that McKee would explain his demand . O'Rourke got in
1090 DECISIONS OF \ ATIONAL LABOR RELATIONS BOARD
touch with Arthur Anderson, a vice president of Con Edison, who refused to meet
with McKee.
On or about July 25, 1961, McKee and the wage committee met with John Garvin,
a labor relations consultant, in O'Rourke's office. McKee told Garvin that if agree-
ment could be reached on the "seniority article" (the Union's revised demand) a
full agreement could be quickly consummated, but, if not, the strike would continue.
McKee was told by Garvin that the revised demand was inacceptable. Later Garvin
told McKee that the employer would guarantee employment for five drivers but
McKee turned this down as inadequate. McKee told Garvin and O'Rourke that
the strike would continue until the employer agreed to the revised demand. The
strike did continue until enjoined.
No one can contend that the Union's revision of July 14 meant less or was intended
to operate any differently than the clause which I have above found to be illegal
in the circumstances. It expressly binds the employer not to allow any of their
customers to pick up any of the products of the manufacturing companies , regardless
of commitments or custom, unless all 12 drivers on the seniority list are working or
all suitable equipment is in operation, and it was so understood by all involved. The
July 14 revised demand, therefore, being the same as the original is improper on
the same basis as the original, and I so find.
The revision of July 19, however, allowed persons other than those on the
seniority list to pick up for delivery despite the proposed agreement provided that
the employee or employees who lose work because of the work performed by the
other persons are paid their regular day's pay These payments are called "damages"
to be paid as a penalty "for the violation of the" contract.
I think the revision of July 19 cured none of the defects of the earlier proposal.
The damage or penalty clause cannot be considered in isolation for it is an integral
part of the total revision. It is a sanction designed to insure the achievement of
one of the Union's original objects which was, and is, the securing of work for its
members but which is presently being performed by employees of Con Edison and
others. This objective can only be reached by Con Edison agreeing to stop its
customary method of doing business, the manufacturer canceling its contracts with
Con Edison, or paying a penalty the amount of which is wholly conjectural. The
revision does not legally give the manufacturers an alternate method of doing busi-
ness since the overriding intent of the revisions is the elimination of Con Edison
pickups with its own men and equipment unless the drivers are employed. When-
ever the conditions are not satisfied and Con Edison or any other customer picks up,
the contract will have been violated. These recurring violations might result in
claims of material breach of the agreement leading to recission or requests for
arbitration under the contract. These uncertainties, in addition to the conjectural
financial liability which the manufacturers might incur during the life of the agree-
ment , added to the "moral suasion" 9 of having agreed in principle to keep their
drivers employed regardless of commitments to others, necessarily would drive the
manufacturers toward a different method of doing business with their customers.
Again, as in the case of the earlier demand which precipitated the strike, the
Union's object is not to secure work for its members which is traditionally theirs
but, by reason of the scope of the restriction, to secure work historically performed
by others. Moreover, even under the revised demand the manufacturers are, unlike
the ordinary person who contracts work out, not free to decide when and how they
shall do business with Con Edison for Con Edison insists because of the exigencies
of its business that the manufacturer do business in the customary manner. These
considerations, it seems to me, reveal the lack of an equitable basis justifying the im-
position of a penalty to achieve or excuse a result otherwise unlawful.
I find that the July 19 revision did not make the July 14 revision less objectionable
under Section 8(e) of the Act and that the Union by insisting upon acceptance of
these revised proposals as a condition of settling the strike with an object of causing
the employer to cease doing business with Con Edison and others and signing an
agreement illegal under Section 8(e) violated Section 8(b) (4) (i) and (ii) (A) and
(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Union described in section II, above, occurring
in connection with the operations of the Charging Parties described in section 1,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
9 Mary Feifer, d/b/a American Feed Company, 133 NLRE 214
LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1091
among the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Union has committed unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and on the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. The Charging Parties are persons engaged in commerce or an industry affecting
commerce within the meaning of the Act.
3. By threatening to strike and picket and by striking and picketing to secure
a collective-bargaining agreement containing certain provisions which would violate
Section 8(e) of the Act, the Union engaged in unfair labor practices within the
meaning of Section 8(b) (4) (i) and (ii) (A) of the Act.
4 By threatening to strike and picket and by striking and picketing with an object
of forcing Precon, Precast, Precrete, and Concrete Conduit (the Employer) to
cease doing business with Con Edison and certain other employer customers of the
employer, the Union engaged in unfair labor practices within the meaning of Section
8(b)(4)(1) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting commerce
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, it is
recommended that the Respondent, Local 282, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents,
representatives , successors , and assigns , shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging employees of Precon, Precast,
Precrete, and Concrete Conduit, New York, New York, to engage in, a strike, or
threatening , coercing , or restraining the aforesaid employer, where in either case
an object thereof is to force or require said employer to enter into any agreement
which is prohibited by Section 8(e) or where an object thereof is to force or require
the aforesaid employer to cease doing business with Con Edison, or with any other
person.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act.
(a) Post in conspicuous places in Respondent 's business offices, meeting halls, and
places where notices to members are customarily posted, copies of the attached
notice marked "Appendix ." 10 Copies of said notice , to be furnished by the Regional
Director for the Second Region , shall, after being duly signed by official representa-
tives of Respondent , be posted by Respondent immediately upon receipt thereof,
and be maintained by them for 60 consecutive days thereafter . Reasonable steps
shall be taken by Respondent to insure that said notice is not altered , defaced, or
covered by any other material.
(b) Furnish the Regional Director for the Second Region signed copies of said
notice for posting by Precon , Precast, Precrete , and Concrete Conduit , if willing,
in places where notices to employees are customarily posted.
(c) Notify the said Regional Director, in writing, within 20 days from the date
of receipt of this report , what steps Respondent has taken to comply herewith.ii
15If this Recommended Order is adopted by the Board , the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice If the Board's Order be enforced by a decree of a United States Court of
Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforc-
ing an Order" shall be substituted for the words "Pursuant to a Decision and Order "
11 If 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."
672010-63-vol. 139-70
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECON , PRECAST,
PRECRETE, AND CONCRETE CONDUIT
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the polices of the National Labor Rela-
tions Act , we hereby give notice that:
WE WILL NOT engage in , or induce or encourage employees of Precon , Precast,
Precrete , and Concrete Conduit to engage in, a strike or threaten , restrain, or
coerce the aforesaid employer where in either case an object is to force or
require the aforesaid employer to enter into any agreement which is prohibited
by Section 8(e) of the Act , or where an object thereof is to force or require
the aforesaid employer to cease doing business with Consolidated Edison
Company or any other person.
LOCAL 282 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
Publishers ' Association of New York City, et al. and New York
Mailers Union No. 6 International Typographical Union, AFL-
CIO and Newspaper and Mail Deliverers Union . Cases Nos.
2-CA-7863 and 2-CA-7884. November 19,1962
DECISION AND ORDER
On April 19, 1962, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices, and recommended that the allegations of the complaint per-
taining thereto be dismissed. Exceptions to the Intermediate Report
and supporting briefs were filed by the Respondents and the General
Counsel ; exceptions only were filed by New York Mailers Union No. 6
International Typographical Union, AFL-CIO, one of the Charging
Parties herein.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,' and finds merit in the Respondents' exceptions. Accord-
1 Respondents ' request for oral argument Is denied , as the record and briefs fully
present the issues and positions of the parties.
139 NLRB No. 107.