Local 294, Teamsters

National Labor Relations Board - Board Decisions

Feb 14, 1972

195 N.L.R.B. 378 (N.L.R.B. 1972)

378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 294, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America
and Clemence D. Stanton, d/b/a Rexford Sand and
Gravel Co. Case 3-CC-604
February 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On August 19, 1971, Trial Examiner Sidney D.
Goldberg issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brier and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the Re-
spondent, Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's recom-
mended Order.
' The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear prepon-
derance of all of the relevant evidence convinces us that the resolutions were
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d
362 (C.A 3) We have carefully examined the record and find no basis for
reversing his findings.
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: This case, tried
before me at Albany, New York, on June 8, 1971, involves
allegations of unlawful secondary activity, as well as primary
activity unlawful because conducted for an object forbidden
by the National Labor Relations Act, as amended (the Act).
The complaint' alleges that Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (the union), while engaged in a labor
dispute with Clemence D. Stanton, doing business as Rexford
Sand & Gravel Co. (Stanton) induced work stoppages by
employees of Stanton and other employees with whom he was
going business , and that the union threatened, coerced, and
restrained Stanton and the other employers. Objects of this
conduct, it is alleged, were to force or require Stanton to sign
' Issued May 13, 1971, on a charge filed March 19 and an amended
charge filed March 31, 1971
a contract containing a clause forbidden by Section 8(e) of the
Act and to force the other employers to cease doing business
with Stanton. By this conduct the union is alleged to have
violated Section 8(b)(4)(i) and (ii)(A) and (B) of the Act.
The union answered, denying the major allegations of the
complaint, and the case came on for trial before me as stated.
All parties were represented; afforded an opportunity to ad-
duce evidence, to cross-examine witnesses, and to argue upon
the facts and the law. Briefs filed by the General Counsel and
by counsel for the union have been considered.
For the reasons hereinafter set forth in detail, I find that
the contract provision involved violates Section 8(e) of the
Act and that the union's activities violated Section 8(b)(4)(i)
and (ii)(A) and (B) thereof.
Upon the entire record herein,2 and the demeanor of the
witnesses while testifying, I make the following:
FINDINGS OF FACT
1. Jurisdiction
Stanton, the charging party, is engaged in selling sand for
use in construction work in the Albany, New York, area. He
owns a sand pit and at least two trucks, which are loaded at
the sand pit and driven by his employees to the construction
sites of his customers where the sand is delivered by being
dumped at such places as they direct.
Sweet Associates, Inc., a New York corporation engaged
in general construction, has the general contract for the con-
struction of a mental hygiene facility for the State of New
York near Schenectady. The cost of this construction is over
$4 million and, in the performance of this contract, Sweet has
purchased, from outside the State of New York, goods and
materials valued at more than $50,000 for delivery to the site.
Some of the excavating work on the site was subcontracted
by Sweet to John Witte, Inc., and Sweet arranged with Stan-
ton to supply the necessary sand for land fill in connection
with the excavating work.
Although the record contains no information concerning
the interstate commerce of either Stanton or Witte, the an-
swer admits the factual allegations concerning Sweet's com-
merce in connection with this project and admits the conclu-
sionary allegations that Witte and Stanton are "persons
engaged in commerce or industries affecting commerce." On
the basis of the interstate commerce involved in the project,
I find that the dispute herein has a substantial impact upon
interstate commerce within the meaning of Sections 8(b)(4)
and 2(6) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.'
The answer admits, and I find, that the union is a labor
organization within the meaning of the Act.
2. Background
Sweet, through its membership in Eastern New York Con-
struction Employers, Inc., is a party to the collective-bargain-
ing contract with the union covering its truckdrivers. Witte
is a direct signatory to the same contract.
Relevant portions of the contract are the following:
1.... Vehicles within the jurisdiction of Truck Driv-
ers Local 294 shall be manned only by teamsters.All
trucks or vehicles employed in the exclusive transporta-
tion of materials shall be manned under the terms of this
agreement.
' The motion of the General Counsel to correct typographical errors in
the transcript of record was not opposed and, by order dated July 16, 1971,
it was granted.
' Local 2669, affiliated with Suffolk County District Council ofCarpen-
ters, etc. (T & D Roofing Co., Inc.), 173 NLRB 1232
195 NLRB No. 75
LOCAL 294, TEAMSTERS 379
3. In hiring other trucks the Employer shall require
hired trucks to be manned by employees covered by
agreement with this Union, if available. Chauffeurs on
such hired trucks shall receive no less favorable working
conditions and wage rates than these set forth in this
Agreement. The Employer agrees to set forth the forego-
ing provisions in any agreement that it may make for
hired trucks with an independent employer. Should such
an independent employer of the chauffeurs upon any
such hired trucks have a contract with this Union, such
contracts shall be a fulfillment of the provisions of this
paragraph, but only so far as said independent employer
is concerned
9. It shall not be a violation of this Agreement and it
shall not be a cause for discharge or disciplinary action
in the event an employee refuses to go through any
picket line'
32. Subcontracting.
(a) The contractor, subletting any portion of a job or
work on a job site, shall, as a condition preceding such
subletting, request the subcontractor to meet with the
representatives of the Union for the purpose of comply-
ing with the provisions of this Agreement for such work.
(b) In addition, the contractor shall provide in any
subcontract that the subcontractor shall conform to the
terms of this Agreement insofar as wages, hours, and
working conditions are concerned.
(c) If it is found that the subcontractor is not comply-
ing with paragraph (b) above, the Union shall give the
contractor twenty-four (24) hours' notice.
3 The facts
Sweet's first orders of land fill from Stanton were for deliv-
ery on March 9, 1971,' and 22 loads were delivered on that
day by two of Stanton's trucks without incident. Additional
deliveries were requested for March 10 and at 7:30 a.m. on
that day the first truckload entered the construction site,
dumped its load as directed, and was leaving the site when the
driver, Marshall Smith, found his way out blocked by an
automobile standing on the road just inside the gate. On the
opposite side of that car, and blocked by it from entering the
site , was Stanton 's other truck, driven by Robert Christian.
Anthony Carusone, a business agent of the union, was talking
with Christian as Smith pulled up. Carusone introduced him-
self to Smith and asked to see his union book. Smith answered
that he had dust started driving the truck and had no book,
whereupon Carusone said that if he had no book he would
have to stay off the job. Carusone then asked both Smith and
Christian for whom they were working. According to Smith,
they both said they were working for Stanton but Carusone,
claiming that Christian had previously told him the truck was
his own,' started for the trailer which served as Sweet's office
on the construction site, saying that he would check up on
them. Both drivers followed.
The only person in the trailer when they entered was Witte.
Smith testified that Carusone greeted Witte by saying "what
the hell are you doing?" and followed with the statements
' There is another, more elaborate, picket clause in the contract but this
is the one set forth in the complaint and alleged to be violative of Section
8(e) of the Act. Respondent 's brief makes no reference to either of the
clauses
All dates are 1971
Christian did not testify
that, while one of the two truckdrivers was union, the other
was not, and that their employer had no contract with the
union. Witte asked Carusone whether he should call Stanton;
Carusone said he didn't care. At this time Donald Reutzel,
Sweet's job superintendent, came into the trailer accom-
panied by Lloyd DeLuke, the union's steward for Sweet's
driver employees, and Reutzel joined in the discussion.' Ac-
cording to the testimony of both Smith and Reutzel, Caru-
sone told Reutzel that Stanton would have to sign a contract
with the union or, if he refused, Sweet would have to put the
drivers on its own payroll. Reutzel refused to put Stanton's
men on Sweet's payroll, stating that one of the reasons why
he had "hired the trucker" was because he did not want those
men on his payroll . The suggestion was again made that
Stanton be called on the telephone and Witte did so; he told
Stanton that there was "a problem at the job which he would
have to straighten out with the union" and he handed Caru-
sone the telephone. Carusone told Stanton that he would have
to sign a contract with the union and Stanton answered that
he did not have to sign any contract.
Carusone testified that he asked Reutzel and Witte for
whom Stanton was subcontracting and that he directed the
attention of both of them to certain provisions of their con-
tract with the union, stating that he was giving them a "24
hour notice" as provided in it. Reutzel, however, specifically
denied that Carusone made any reference to the contract and
both Reutzel and Smith testified that there was no reference
to subcontracting or a subcontracting clause. Based upon my
observation of the demeanor of the witnesses while testifying
and the evidence concerning the course of this conversation,
I accept the testimony of Reutzel and Smith and find that
theirs was an accurate description of the conversations; that
Carusone did not ask about Stanton's subcontract; that he
made no reference to their contract with the union; and that
he said Stanton would have to sign a contract with the union
or Sweet would have to put the men on its payroll.
Reutzel asked Carusone whether the second truck, which
was still on the premises, might dump its load. Carusone said,
according to Reutzel, that it could not; that the load would
have to be taken back; and that if they "continued to haul
with Stanton, that he would picket the job." With respect to
picketing, Carusone testified that he said that, if Stanton
would not sign a contract or if Sweet did not put the drivers
on its payroll, he would "put an informational picket on the
job and follow them any place they deliver." Both Reutzel
and Smith testified that Carusone did not use the word "infor-
mational" and that he said he would put a picket "on the
gate" or "on the job." Carusone's own use, in his testimony,
of the words "on the job" reinforces my conclusion that his
' The occurrences to this point are not disputed From this point forward,
however, the testimony is in conflict concerning the statements made at this
meeting. Reutzel and Smith testified for the General Counsel and Carusone
testified for the union , Witte and the union steward, who were the others
present, were not called Although Reutzel and Smith were probably in
general sympathy with Stanton, they were not directly involved in this case
and they appeared to be testifying to the best of their respective recollec-
tions Carusone , the union 's business agent and its principal actor in this
controversy, is directly interested and his testimony appeared to reflect that
interest He was generally aggressive , but evasive when that seemed to suit
his interests Although he testified with positiveness, and in detail , concern-
ing his statements on March 10, he was unable to recall his testimony before
the district court on May 7 and said that he could not even recall when it
was that he testified It is also pertinent to note that Carusone was one of
the principal actors for the union in the union conduct adjudicated in the
Island Dock Lumber case (145 NLRB 484, enfd 342 F 2d 18), which bears
several similarities to this one , and it forms part of Carusone's educational
background Accordingly, where the resolution of a factual conflict requires
assessment of the credibility of the witnesses , I prefer Smith and Reutzel
over Carusone
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat of picketing was accurately described in the testimony
of Reutzel and Smith and that it did not include the word
"informational." This latter word, I am convinced, and the
expressed intention to limit any picketing to the immediate
vicinity of the trucks, was added by Carusone in his testimony
in an effort to describe permissible picketing. On the basis of
all the relevant testimony, as well as the demeanor of the
witnesses, I find that Carusone threatened to picket the entire
project if Stanton continued to supply land fill, and that he
did not limit his threat of picketing to times when Stanton's
trucks or employees were on the premises.
Although Stanton, during his telephone conversation with
Carusone, expressed his refusal to sign a contract with the
union, Witte, when he went back on the phone, nevertheless
convinced Stanton to see Carusone at the union office, stating
that he would arrange an appointment for him there at 10
o'clock the same morning. Smith testified that as he left the
project office with Carusone and asked him how he might join
the union, Carusone told him to come to the union office with
Stanton to obtain a membership application. At the same
time, Retuzel and Sweet's union steward also left the trailer.
In accordance with this arrangement, Stanton and Smith
went to the union hall shortly before 10, but only Stanton was
admitted into Carusone's office. Carusone, however, had the
union's secretary, Howard Bennett, with him, admittedly as
a witness. Both Stanton and Carusone testified that Carusone
gave Stanton a printed copy of the union's master contract
with Eastern New York Construction Employers, Inc., the
same contract which covers Sweet and Witte. Stanton tes-
tified that he asked some questions about some of its provi-
sions but Carusone said that all that was required of him was
to sign the contract and thereafter to make the payments
described in it, both to his employees and into the pension and
other funds. According to Stanton, he answered that he did
not wish to sign the contract and Carusone then stated that
he would guarantee that Stanton would never work in the
area again. Stanton testified that he then asked Carusone how
it was that he had been able to work for other companies
during the past year and a half without signing a union con-
tract, stating that he "was protected as long as Mr. Robilotto'
and other members of the union were getting their cut off my
trucks." Carusone corroborated Stanton's testimony con-
cerning the reference to Robilotto's getting a "cut" and they
both testified that at that point Carusone denied the accusa-
tion and told Stanton to get out of his office There is no
dispute that, when Stanton did not leave, Carusone did. Stan-
ton testified that he, however, remained in the office where
Bennett explained some of the provisions of the contract to
him. Carusone's denial that he made a statement that he
would prevent Stanton from working in the area was coupled
with his testimony that Stanton wanted to discuss the rental
he was receiving for his trucks, while he, Carusone, insisted
on confining the discussion to the men's wages and benefits
On all of the evidence in this case,' as well as Carusone's
demeanor while testifying, I find that Carusone said he would
"guarantee" that Stanton would not work in the area.
a Nicholas Robilotto is president of tie union
' Bennett, who was present at this interview, was in the courtroom with
respondent's counsel during the morning session of the trial of this case
when the General Counsel presented his evidence Bennett was not called
as a witness , however, and was not present at the afternoon session when
Carusone testified as respondent's sole witness Since Carusone testified that
he kept Bennett in his office "as a witness," respondent's failure to call
Bennett justifies an inference that his testimony would have been in conflict
with that of Carusone
The following morning , Reutzel testified, Carusone tele-
phoned him at the construction site and asked whether Stan-
ton was still making deliveries and that he answered that
there was nobody hauling for Sweet. He also testified that he
said he was looking for someone for that purpose and asked
Carusone for suggestions, whereupon Carusone, after men-
tioning a couple of names, said that anyone having a contract
with the union was acceptable to him.
Later that day, after talking to Witte, Stanton returned to
the union hall: he was ready, he testified, to sign the union
contract. Carusone made him wait a while but finally saw him
and Stanton said he would sign the contract if he could have
a few questions answered . He testified that he asked Carusone
about contract provisions covering the shop steward and the
status of men he then had working for him, that Carusone
answered that the men in his employ would have to be dis-
charged, that the union would assign him two other men, one
of whom, the shop steward, would be a permanent employee
who, when there was no other work, could wash the trucks.10
Stanton further testified that he told Carusone that under that
arrangement he would go bankrupt and that he could not see
"laying off two good men to satisfy his (Carusone's) needs"
and that Carusone thereupon told him to leave. Carusone
admitted that Stanton told him he was there to sign a con-
tract. He denied, however, that he discussed anything with
Stanton but, on the contrary, testified that he immediately
referred Stanton to the union's president, Robilotto. Stan-
ton's testimony does not mention any reference by Carusone
to the contract provision footnoted immediately above, but its
terms make plausible the statement attributed to Carusone by
Stanton and I have no reason to question the credibility of
Stanton as a witness. Rejecting Carusone' s denial, I find that
the conversation occurred as Stanton testified and that it
reinforced and reiterated the union's demand that Stanton
sign a contract with it.
Stanton testified, without objection, that when he left Caru-
sone after this second visit to the union office, he told Reutzel
that he could not come to terms with the union and asked "in
what way" he could continue working on the job; that Reut-
zel answered that the job was going "nice and smooth"; that
he couldn't "afford any union problems"; and that he
"wouldn't be able to use me."
Despite the issuance of a temporary injunction by the
United States District Court for the Northern District of New
York on May 7, 1971, Stanton has made no further deliveries
to the construction site.
4. The issues
On the basis of the foregoing facts, the General Counsel
contends:
(i) The clause of the proposed contract protecting em-
ployees' refusal to cross picket lines contravenes Section
8(e) of the Act; the union's conduct (a) in inducing
Stanton's employees to refrain from making deliveries,
(b) in inducing the employees of Sweet to refuse to han-
dle Stanton's sand," and (c) in threatening to picket the
construction site if Stanton continued to deliver, had an
object of forcing Stanton to sign that contract and, there-
fore, it thereby violated Section 8(b)(4)(i) and (u)(A) of
the Act
° Section 10, subsection 4, of the contract provides that
Job steward of the prime contractor engaged in the work of teamsters
shall remain employed whenever there is work for a teamster on the job
While the memorandum of law submitted by the General Counsel does
not argue that the record shows inducement of Sweet's employees, the
complaint alleges such inducement, and the subject will be treated herein
LOCAL 294, TEAMSTERS
(ii) The union's inducement of Sweet's employees and
its threat to picket the construction site, if Stanton con-
tinued to deliver, also had an object of forcing and re-
quiring Sweet and Witte to cease doing business with
Stanton and the union thereby violated Section 8(b)(4)(i)
and (ii)(B) of the Act.
The union contends that its conduct was not directed at
forcing Stanton to sign a contract and that its conduct did not
constitute either inducement of employees to refuse to per-
form services or coercion to force Sweet and Witte to cease
doing business with Stanton. It also contends that its actions
with respect to Sweet and Witte were to persuade them to
comply with their contract and that the work of Stanton was
"on-site" construction work exempted from the provisions of
Section 8(e).
From these conflicting contentions, it appears that the
decision of this case depends upon determination of the fol-
lowing questions:
i. Does the picket line clause of the contract contravene
Section 8(e)7
ii.Was the work of Stanton covered by the "on-site"
construction proviso of Section 8(e)?
in Did the union's conduct constitute inducement of
employees and coercion of employers?
iv. If so, did the union have as objects thereof (a) forcing
Stanton to sign the contract, and (b) forcing Sweet and
Witte to cease doing business with Stanton?
5. Discussion and conclusions
a. The picket line provision
There is no reference, in respondent's brief, to the picket
line provision or its validity under Section 8(e) of the Act,
although the complaint sets forth the provision verbatim and
alleges it to be unlawful under that section. The union by-
passes the point by arguing that the record shows it did not
demand the signing of a contract by Stanton and that, in any
event, the picket line provision was proper under the "on-
site" construction proviso in that section. Accordingly, re-
spondent's failure to argue the validity of the provision can-
not be regarded as a concession of its invalidity. Since,
however, both of these arguments must be rejected on the
basis of the resolution of underlying factual questions, the
legitimacy of the picket line provision must be determined.
It is now beyond dispute that Section 8(e) was enacted in
aid of the secondary boycott provisions of Section 8(b)(4) and
to close the so-called "Sand Door" loophole that had devel-
oped in them.12 In conformity with this legislative purpose, it
has been held that contract provisions cast in terms of pro-
tecting the rights of employees who refuse to cross picket
lines are nevertheless unlawful to the extent that they immu-
nize action by employees which is really action designed to
support union conduct made unlawful by Section 8(b)(4).'3
It is apparent that the contract provision involved in this
case, in immunizing from discipline or discharge "an em-
ployee (who) refuses to go through any picket line," would
support secondary action and that, therefore, it contravenes
Section 8(e) of the Act 14
American Feed Company, 133 NLRB 214
Truck Drivers Union Loca1413, etc (ThePatton Warehouse, Inc), 140
NLRB 1474 Truck Drivers and Helpers Local Union No 728, etc (Brown
Transport Corp), 140 NLRB 1436, enfd in part 334 F 2d 539 (C A D C),
Truck Drivels Local No 696, etc. (Freeto Construction Co., Inc), 149 NLRB
23
" Local 559, International Brotherhood of Teamsters, etc (Anopolsky &
Sons, Inc), 145 NLRB 722
381
b. "The on-site" proviso of Section 8(e)
The so-called "on-site" proviso of Section 8(e) reads as
follows:
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 ....
The record shows that Stanton was expected, in delivering
land fill to the project, to dump it at the places and in the
quantities specified by Sweet or Witte. Smith testified that he
and Christian had delivered 22 loads on March 9; that his
instructions were to dump it as directed ; and that he dumped
the fill, sometimes part loads and sometimes full loads, at five
or six different places.
On the basis of this evidence the union argues that Stanton
was doing "on-site" work which falls within the quoted
proviso. The argument must be rejected. In the Island Dock
Lumber case," the respondent herein, acting through Caru-
sone and Robilotto, prevented the lumber company from
delivering ready-mixed concrete to a construction site. The
record showed that the drivers left the lumberyard for the
14-mile drive to the site with dry loads of cement, sand,
gravel, and aggregate and two tanks of water; that the specifi-
cations called for a 3-minute mix and the drivers did not mix
the materials with the water during the drive because of a fear
of breakdowns but that, on the site, the mixing was accom-
plished by the driver setting the mixer agitator in motion by
the use of a lever The liquid concrete was then delivered as
directed by employees on the site, into forms, into chutes, or
into cement buckets. The union argued in that case that the
work was "on site" work but the Board rejected the argu-
ment, stating, on page 491, that:
The pouring of the concrete is the essence of and consti-
tutes the actual delivery because liquid concrete, by its
very nature, cannot be dumped on the ground at the
construction site like other materials.
and citing the portion of the legislative history of the 1959
amendment to the Act," crucial to this point, which states
that:
The proviso does not exempt from section 8(e) agree-
ments relating to supplies or other products or materials
shipped or otherwise transported to and delivered on the
site of the construction.
The union, now conceding that there was no "on-site"
work being performed in the Island Dock case, nevertheless
here contends that
Stanton was doing work on the site that others would
have done if Stanton had not performed the work. Stan-
ton was not a simple supplier who dumped the supplies
on the site and left. Witte directed each and every move,
and there were many in the only day the job was done.
This argument attempts to make much of very little; the
record shows that Stanton was, in fact, a "simple supplier"
and that the only function performed by employees of Witte
or Sweet was to tell Stanton's drivers where to dump part or
all of the loads of sand. There is no evidence that any of the
fill, once dumped, was again touched by a Stanton employee.
As stated by Trial Examiner Myers, in the Reynolds Electric
case-11
" International Brotherhood of Teamsters, etc, Local 294 (Island Dock
Lumber, Inc), 145 NLRB 484, enfd 342 F 2d 18 (CA 2)
" H Conf Rept 1147, 86th Cong, p 39, reprinted in I Leg Hist 943
(1959)
" Teamsters, etc., Local Union No 631 (Reynolds Electric and Engineer-
ing Co., inc), 154 NLRB 67, fn 45
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The underscored words ["transported to and deliv-
ered on" in the House Conference Report footnoted
above] indicate that Congress had in mind the total pro-
cess of delivering materials . Thus, the fact that some
portion of a continuous delivery takes place on the job-
site would not qualify that final segment as construction
site work.
and the Board expressly affirmed his finding by its statement,
on page 70, that:
... the Trial Examiner found, and we agree, that the
work of delivering materials, products, and supplies to
the Nevada Test Site is not construction work to be
performed at the construction site.
Accordingly, I find that Stanton's work at the construction
site constituted merely a delivery of materials and supplies
and that it was not work at the site of construction exempted
from Section 8(e) by the "on-site" proviso.
c. The inducement of employees and coercion of employers
There is no dispute that the union's first action in this
controversy was taken by Carusone on March 10 when he
physically prevented Stanton's driver, Christian, from driv-
ing his loaded truck onto the construction site. Shortly there-
after, Carusone testified he asked Smith whether he had a
book and, upon being told by Smith that he did not, said: "If
you don't have a book you can't work here "
With respect to Stanton's drivers, therefore, it is beyond
doubt that Carusone took steps to prevent Christian and to
dissuade Smith from performing services for their employer.
To say that this conduct did not "induce or encourgae" Smith
and Christian to refuse to perform services is to utter a rank
absurdity. As the Supreme Court stated, over 20 years ago:
The words "induce or encourage" are broad enough to
include in them every form of influence and persusaion.1I
The action and the participants then moved into the trailer
office of Sweet. The record shows that, after Reutzel joined
the group with his employee, DeLuke, the union steward,
Reutzel asked Carusone whether the second truck, which was
still on the site, might dump its load and that Carusone said
that it could not, that it would have to be taken back and that,
if Stanton continued to haul for Sweet, he would "picket the
job." This statement of Carusone, in the presence of Stanton's
drivers, particularly Christian who was a member of the un-
ion, could not have failed to carry the message that Stanton's
drivers were not to perform further services in bringing addi-
tional loads to the site. With respect to DeLuke, who was one
of Sweet's employees and the union's steward on the job, the
statement also constituted inducement, which was directed at
him, to refuse to perform services for his employer if Stanton
continued to bring land fill to the site." Furthermore, Reutzel
brought DeLuke with him because he was the union steward,
and there is no doubt that any statement or request by Caru-
sone, the union's business agent , was expected and intended
by him to be carried by the steward to the other employee
members of the union on the job.20
Accordingly, I find that Carusone's direction that Stan-
ton's truck be not unloaded but taken back, and his threat to
picket the job if Stanton continued to supply land fill, con-
stituted inducement of both Stanton's and Sweet's employees
to refuse to perform services for their respective employers.
" International Brotherhood of Electrical Workers, Local 501 v
NLRB., 341 U S 694, 701-703
" See Local299, International Brotherhood of Teamsters, etc (American
Motor Lines, Inc), 161 NLRB 672, Local 456, International Brotherhood
of Teamsters, etc (Strauss Paper Co, Inc), 149 NLRB 49, 56
'° See N.L R B v Local 294, International Brotherhood of Teamsters,
etc. (Van Transport Lines, Inc.), 298 F 2d 105 (C A 2)
As found, Carusone threatened both Sweet's superinten-
dent and Witte, personally, that the jobsite would be picketed
if Stanton continued to supply land fill . Also as found above,
when Stanton went to Carusone's office at 10 a.m. the same
day to discuss the signing of a contract, Carusone said that
he would "guarantee" that Stanton, if he failed to sign the
contract, would not work any longer in the area. These state-
ments constituted threats and coercion within the meaning of
Section 8(b)(4)(ii) of the Act.
d. The objects of the union 's activities
With the rejection of Carusone's testimony that his conver-
sation with Reutzel and Witte was concerned solely with
calling their attention to the subcontracting clause in the
contract and the acceptance of the testimony of Reutzel and
Smith that he threatened to picket the job if Stanton con-
tinued to bring in land fill, it is clear, and I find, that an object
of the union's conduct was to compel Sweet to cease doing
business with Stanton.
The union contends that Carusone's suggestion that Sweet
put Stanton's employees on its own payroll shows that it was
not the union's object to compel Stanton to enter into the
contract in effect with Eastern New York Construction Em-
ployers. It is true, as Reutzel testified, that Carusone made
that suggestion and that Reutzel rejected it. It is also true,
however, that it was only offered as an alternative to Caruso-
ne's first demand that Stanton sign the contract. Further-
more, as Stanton testified, both of his interviews at the union
hall were devoted to discussions about the contract and
Carusone's major contribution consisted of the statement
that all Stanton had to do was to sign the contract and make
the payments required by it. It clearly appears, and I find,
that at least "an" object of the union's activities was to force
or require Stanton to enter into the union's form of contract,
which contains a clause prohibited by Section 8(e) of the Act.
e. Conclusion
With the appropriate issues determined as set forth above,
I conclude that the union induced and encouraged employees
of Stanton and Sweet to refuse to perform services, and
threatened Stanton, Sweet, and Witte. While these actions
may have had several objects, including those stated by the
union, they did also include (i) forcing Stanton to enter into
a contract containing a provision prohibited by Section 8(e)
of the Act and (ii) forcing Sweet and Witte to cease doing
business with Stanton. The presence of these objects rendered
the union's activities violative of Section 8(b)(4)(i) and (ii)(A)
and (B) of the Act.
6. The effect of the unfair labor practices upon commerce
The activities of respondent set forth in sections 3 and 5,
above, occurring in connection with the operations of Sweet,
Witte, and Stanton, described in section 1, above, have a
close, intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and the
free flow thereof.
7. The remedy
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(b)(4)(i) and (ii)(A) and (B)
of the Act, I shall recommend that it be required to cease and
desist therefrom and to take certain affirmative action de-
signed to remedy the unfair labor practices and otherwise
effectuate the policies of the Act.
LOCAL 294, TEAMSTERS 383
The General Counsel, noting the proclivity of the respond-
ent union to commit unfair labor practices like those involved
herein, requests a "broad order" but fails to set forth, in
detail, the provisions he considers appropriate in such order.
There can be no dispute that Local 294, the respondent
herein , has been one of the labor organizations most often
found, by the Board and the courts, to have violated these
provisions of the Act. Furthermore, the facts in the Island
Dock Lumber Co. case were almost identical with those
herein and the Board , in that case noting respondent 's claims
with respect to vehicles coming onto the construction site,
issued an order prohibiting respondent from:
[T]hreatening, coercing or restraining A. S. Wikstrom
. or any other person engaged in commerce or in any
industry affecting commerce ... where an object ... is
either (a) to force or require any person to enter into an
agreement which is prohibited by Section 8(e) of the Act,
or (b) to force or require any person to cease doing
business with Island Dock Lumber, Inc., or any other
person. [Emphasis supplied.]
This order was enforced by the court of appeals. The issuance
of a broad order in this case is certainly justified and will be
recommended but unless , in the future , measures additional
to, and different from, mere issuance of the usual "broad
order" are pursued by the Board, the General Counsel, or
those affected by respondent's conduct, the union is likely to
continue to amass "broad orders " against it without discon-
tinuing its exhibitions of disdain for these sections of the Act.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Local 294, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America , is a labor
organization within the meaning of Sections 2(5), 8(b )(4), and
8(e) of the Act.
2. Sweet Associates , Inc., John Witte , Inc., and Clemence
D. Stanton , doing business as Rexford Sand and Gravel Co.,
are employers or persons engaged in interstate commerce, or
in any industry affecting commerce , within the meaning of
Sections 2(6), 8(b)(4), and 8(e) of the Act.
3. The provision , which is included in respondent 's form of
contract and reads as follows:
9. It shall not be violation of this Agreement and it
shall not be a cause for discharge or disciplinary action
in the event an employee refuses to go through any
picket line.
is a contract prohibited by Section 8(e) of the Act.
4. The delivery of land fill by Stanton to the construction
site of the mental hygiene facility for the State of New York
does not constitute work to be done at the site of construction
within the meaning of the first proviso of Section 8(e) of the
Act.
5. By inducing or encouraging employees of Stanton and
Sweet to engage in strikes, or refusals in the course of their
employment to perform services , with an object of forcing or
requiring Stanton to enter into an agreement prohibited by
Section 8(e), respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(b)(4)(i)(A) of the Act.
6. By threatening , coercing, and restraining Stanton,
Sweet , and Witte , with an object of forcing or requiring Stan-
ton to enter into an agreement prohibited by Section 8(e),
respondent has engaged in an unfair labor practice within the
meaning of Section 8(b)(4)(ii )(A) of the Act.
7. By inducing and encouraging employees of Sweet to
engage in strikes, or refusals in the course of their employ-
ment to perform services , with an object of forcing said em-
ployer and other persons to cease doing business with Stanton
and with each other , respondent has engaged in, and is engag-
ing in , an unfair labor practice within the meaning of Section
8(b)(4)(i)(B) of the Act.
8. By threatening , coercing , and restraining Sweet and
Witte with an object of requiring them to cease doing business
with each other and with Stanton , respondent has engaged in,
and is engaging in, an unfair labor practice within the mean-
ing of Section 8(b)(4)(ii)(B) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record herein, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.21
ORDER
Respondent, Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America , its officers , agents , and representatives , shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging individuals
employed by Sweet Associates, Inc., Clemence D. Stanton,
doing business as Rexford Sand and Gravel Co., or any other
employer , to engage in, strikes or refusals in the course of
their employment to process, transport, or otherwise handle
or work on any goods, articles, materials , or commodities, or
to perform any services, where any object thereof is to force
or require Clemence D. Stanton, doing business as Rexford
Sand and Gravel Co., or any other employer, to enter into a
contract or agreement which is prohibited by Section 8(e) of
the National Labor Relations Act, as amended.
(b) Threatening, coercing, or restraining Sweet Associates,
Inc., John Witte, Inc., Clemence D. Stanton, doing business
as Rexford Sand and Gravel Co., or any other employer or
person engaged in commerce, with an object of forcing or
requiring them, or any of them, to enter into a contract or
agreement which is prohibited by Section 8(e) of the said Act.
(c) Engaging in, or inducing or encouraging individuals
employed by Sweet Associates, Inc., or any other employer,
to engage in, strikes or refusals in the course of their employ-
ment to process, transport, or otherwise handle or work on
any goods, articles, materials , or commodities, or to perform
any services, where an object thereof is to force or require
Sweet Associates, Inc., John Witte, Inc., or any other person,
to cease doing business with Clemence D. Stanton, doing
business as Rexford Sand and Gravel Co., or any other per-
son.
(d) Threatening, coercing, or restraining Sweet Asociates,
Inc., John Witte, Inc., or any other employer or person en-
gaged in commerce, where an object thereof is to force or
require Sweet Associates, Inc., John Witte, Inc., or any other
person, to cease doing business with Clemence D. Stanton, or
any other person.
2. Take the following affirmative action, hereby found
necessary to effectuate the policies of the Act:
(a) Withdraw and cancel any outstanding orders or direc-
tions inconsistent with the provisions of paragraph 1 of this
recommended Order.
(b) Post at the Respondent's business offices, meeting halls,
and other places in the Albany, New York, area where no-
tices to numbers are customarily posted, copies of the at-
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tached notice marked "Appendix."22 Copies of said notice, on
forms provided by the Regional Director for Region 3, after
being duly signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken by said Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Mail signed copies of the notice to the Regional Direc-
tor for Region 3, for posting by Sweet Associates, Inc., John
Witte, Inc., and Clemence D. Stanton, said employers or
persons being willing, at all locations where notices to their
employees are customarily posted.
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have been
taken to comply herewith.23
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
" In the event that this recommended Order is adopted by the Board
after exceptions read "Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the date of this Order, what steps the Respondent
has taken to comply herewith "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all parties were given an opportunity
to present evidence and argument, the National Labor Rela-
tions Board has decided that we violated the law by commit-
ting certain unfair labor practices and has ordered us to post
this notice. We intend to carry out the order of the Board and
abide by the following:
WE WILL NOT engage in a strike, or induce or encour-
age any employee of Sweet Associates, Inc., Clemence
D Stanton, doing business as Rexford Sand and Gravel
Co., or any other person engaged in commerce, to en-
gage in a strike or to refuse, in the course of his employ-
ment, to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or
commodities or to perform any services; and WE WILL
NOT threaten, coerce, or restrain Clemence D. Stanton,
doing business as Rexford Sand and Gravel Co., Sweet
Associates, Inc., John Witte, Inc., or any other person
engaged in commerce or in an industry affecting com-
merce; where in either case an object thereof is forcing
or requiring Clemence D. Stanton, doing business as
Rexford Sand and Gravel Co., or any other employer, to
enter into an agreement which is prohibited by Section
8(e) of the Act.
WE WILL NOT engage in a strike, or induce or encour-
age any employee of Sweet Associates, Inc., or any other
person engaged in commerce, to engage in a strike or to
refuse, in the course of his employment, to use, manufac-
ture, process, transport, or otherwise handle or work on
any goods, articles, materials , or commodities or to per-
form any services; and WE WILL NOT threaten, coerce, or
restrain Sweet Associates, Inc., John Witte, Inc., or any
other person engaged in commerce or in an industry
affecting commerce, where in either case an object
thereof is forcing or requiring Sweet Associates, Inc.,
John Witte, Inc., or any person, to cease doing business
with Clemence D. Stanton, doing business as Rexford
Sand and Gravel Co., or with any other person.
WE DO HEREBY withdraw and cancel any orders and
directions heretofore issued by us inconsistent with the
above commitments and we hereby notify our members
that we have no objection to their full performance of
their duties regardless of any business arrangement be-
tween Clemence D. Stanton, doing business as Rexford
Sand and Gravel Co., and Sweet Associates, Inc., John
Witte, Inc., or any other person, and regardless of
whether said Clemence D. Stanton has entered into a
collective-bargaining contract with us.
LOCAL 294,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN &
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Resident Office,
Seventh Floor, Drislane Building, 60 Chapel Street, Albany,
New York 12207, Telephone 518-472-2215.