Local 299, Teamsters

National Labor Relations Board - Board Decisions

Oct 31, 1966

161 N.L.R.B. 672 (N.L.R.B. 1966)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 299, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. and American
Motor Lines , Inc. Case 7-CC-336. October 31, 1966
DECISION AND ORDER
On June 13, 1966, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'The Trial Examiner found, and we agree, that Fleetwing Terminal Corporation is an
employer engaged in commerce within the meaning of Section 2(2), (6), and ( 7) of the
Act. We further find, as alleged in the complaint and admitted in the answer , that Fleet-
wing is an employer engaged in commerce or in an industry affecting commerce within
the meaning of Section 8(b)(4) of the Act
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter the "Act," came on to be heard before Trial Examiner
William J. Brown at Detroit , Michigan , on April 25, 1966 .1 The charge of unfair
labor practice was filed on March 4 and duly served on the above -indicated
Respondent , hereinafter sometimes referred to as the "Union ." The complaint
herein was issued March 14 by the General Counsel of the National Labor Rela-
tions Board, hereinafter the "General Counsel" and the "Board " respectively,
acting through the Board 's Regional Director for Region 7. The complaint alleged,
in addition to jurisdictional matter and the agency on behalf of the Union of two
individuals , Martin Haggerty and Lewis Sutherland , the commission of the part
of the Union of unfair labor practices defined in Section 8 (b) (4) (i ) (B) of the
Act. Respondent 's duly filed answer denied the commission of the unfair labor
practices alleged.
At the hearing the parties appeared and participated as noted above with full
opportunity to present evidence and argument on the issues . Subsequent to the
1 Dates hereinafter relate to the year 1966 unless otherwise indicated
161 NLRB No. 50.
LOCAL 299, TEAMSTERS 673
hearing briefs were filed by the General Counsel and the Union which have been
fully considered. On the basis of the entire record and my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED
The pleadings herein establish, and I find, that the Charging Party, American
Motor Lines, Inc.,2 hereinafter sometimes "American," is a corporation organized
under the laws of the State of Michigan and maintaining its sole office in Detroit,
Michigan, where it is engaged in business as a common carrier by truck of iron and
other products within the State of Michigan. During the calendar year 1965, a repre-
sentative period, American derived gross income in excess of 100,000 from trucking
operations of which more than $50,000 was derived from trucking services per-
formed for several business enterprises each of which annually produces goods
valued in excess of $50,000 and shipped from Michigan to customers in other
States.
Fleetwing Terminal Corporation, hereinafter sometimes "Fleetwing," is a Mich-
igan corporation with its principal office and place of business in Detroit, Michigan,
where it is engaged in the operation of a public warehouse. During the calendar
year 1965 Fleetwing derived revenues in excess of $50,000 from services furnished
various business enterprises each of which annually manufactures at its Michigan
plant goods valued in excess of $50,000 and shipped from such Michigan plant
directly to out-of-State customers.
On the basis of the foregoing, I find and conclude that the operations of the
employers involved herein affect commerce within the meaning of the Act and that
assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish that the Union is a labor organization within the purview
of Section 2(5) of the Act. It appears from a stipulation of the parties entered to
at the hearing that Martin Haggerty and Lewis Sutherland were, at all material
times, acting as agents of the Union.
II. THE UNFAIR LABOR PRACTICES
The complaint alleges, and the Union's answer denies, that on February 2 Hag-
gerty and Sutherland, acting on behalf of the Union, induced and encouraged indi-
viduals employed by Fleetwing to engage in a refusal in the course of their employ-
ment to perform services, an object thereof being to force Fleetwing and other
persons engaged in commerce to cease doing business with American. It appears
from a stipulation of the parties that for a period of at least 3 years prior to the
events of February 2 the Union has had a labor dispute with American. It also
appears from the testimony of Haggerty that his practice is, when he has reason to
believe that an American truck is loading at a particular warehouse, to ascertain
the location of such American trucks and establish picket lines around them where
it appears advisable in furtherance of the union position in the dispute with
American.
On the morning of February 2, two American trucks had been dispatched to the
Fleetwing warehouse to be loaded with steel for a firm known as Thompson Pro-
ducts and Ford Motor Company's Industrial Engine Division. This area of the
warehouse is under direction and control of Gerald Cusimano, Fleetwing's shipping
and receiving clerk, who performs the clerical work on bills of lading and similar
documents and instructs the two other employees assigned to the Thompson and
Ford Motor accounts, crane operator Robert Scitowski and his helper, Clyde, what
and when to load.
Sometime before noon on February 2, Sutherland came to Cusimano's office and
asked if Fleetwing was loading American trucks. When Cusimano replied that
they were, Sutherland used Fleetwing's telephone to report to someone (presumably
Haggerty) that American trucks were being loaded by Fleetwing. Soon thereafter
Haggerty came to the Fleetwing warehouse, and proceeded to Cusimano's office.
2 Prior to November 9, 1965, this company was known as "Pazan Motor Freight, Inc."
264-188-67-vol . 161-44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The driver of the second (i.e later arriving) American truck, identified only as
"Shorty," was in the office and Haggerty, according to Cusimano told him that he
should have stayed with another line. Shorty then left with his truck, unloaded
According to Cusimano's account, Haggerty told him that the American trucks
were nonunion trucks which the Union had been picketing for 2 years and that he
thought they should not continue to load them According to Cusimano this state-
ment was made while the first truck was still in the loading process. The testimony
of Scitowski and Haggerty however, would indicate that at that time the first Amer-
ican truck had been loaded and a truck of another carrier destined for Ford Motor
Company was loading at the time of this conversation. In any event, Cusimano
called Fleetwing's vice president, Rosa, for instructions and when he informed Hag-
gerty that he had been told to proceed with loading, Haggerty, according to Cusi-
mano, said that if they continued loading they would throw a picket line around
the warehouse. Haggerty denies making this latter statement but asserts that he did
at that stage tell Cusimano that wherever American trucks go he goes with his
picket line
As the General Counsel points out, Cusimano was a disinterested witness. His
account was also impressive in its spontaneity and I credit his testimony as to the
conversation with Haggerty.
Scitowski testified that after loading the first American truck and while engaged
in loading the material for Ford referred to above, Haggerty, after identifying him-
self as acting for the Union, told him that he should not be loading the American
trucks with steel for Thompson as he had a picket line around them. Sometime
thereafter Scitowski entered Cusimano's office while a telephone conversation be-
tween Haggerty and Rosa was in progress At that time Cusimano informed him
that the second truck would not he loaded apparently due to the fact that Shorty
had by then driven off without loading
Shortly thereafter, Scitowski entered the office again and Haggerty said, either
to him or to Cusimano or to both, that they should not load those steel trucks and
if they continued to do so Haggerty would have to throw a picket line around the
Fleetwing warehouse.
Haggerty denied having any conversation with Scitowski on the date in question.
Scitowski is, as the General Counsel points out, a member of a sister Teamsteis
local and there is no basis for inferring any interest on his part in aiding the cause
of American I found him a credible witness on the basis of his straightforward
answers and I credit his account that Haggerty told him at a time when the second
American truck was still on Fleetwing's premises, that he should not load American
trucks
The Union contends (1) that Haggerty did no more than inform those to whom
he talked at Fleetwing that he had a picket line around American which followed
their trucks, (2) that he addressed his remarks only to Cusimano who is a supervi-
sor and not an employee within the purview of the Act, and (3) that in any event,
the incidents of February 2 at the Fleetwing warehouse are de minimis within the
rule of Brown Transport Corp., 144 NLRB 590.
With respect to (1) above, I resolve the factual issue in favor of the accounts of
General Counsel's witnesses to the effect that Haggerty did more than merely
advise them of his picket line and in fact directly solicited Cusimano and Scitowski
not to load American trucks.
As to the status of Cusimano, the evidence in this case indicates that as a ship-
ping and receiving clerk of Fleetwing assigned to Thompson Products and Ford
Motor accounts, he does no more than the routine clerical functions involved in
receipt and dispatch of materials. Any instructions he gives to Scitowski or Clyde
appear to be minor ministerial functions and there is no basis for inferring that he
has the authority outlined in Section 2(11) of the Act. The fact that he communi-
cated directly with Fleetwing's vice president when confronted with Haggerty's
position is not of sufficient significance to warrant an inference that he had super-
visory authority over Scitowski and Clyde or that he was himself a managerial
agent of Fleetwing.
With respect to the Union's contention that the case involves a de minimis situa-
tion, the short answer is that it is not de minimis to American which, according to
its president, Barrand Pazan, had a substantial volume of business with Thompson
Products disrupted on February 2 and thereafter at least up to the date of the
hearing
The Union's reliance on Brown Transport is misplaced. There, during the course
of a lengthy strike, the labor organization issued detailed printed instructions to
LOCAL 299, TEAMSTERS 675
pickets designed to conform picketing to legitimate methods and evidence indicated
that with insignificant exceptions the picketing conformed to the instructions. The
basis of the Board's dismissal of the complaint appears to be that the comparatively
few deviations from instructions did not affect the basic character of the picketing
which, save for the few minor deviations, was permissible primary picketing. The
instant case presents direct appeals, unconnected with an actual picket line, by a
responsible agent of the Union.
The instant case presents a situation where the Union's agent directly appealed
to employees of an employer with whom the Union had no dispute in an attempt
to induce them to cease work for their employer with the object of forcing their
employer to cease doing business with American with whom the Union has a
dispute. This is secondary action of the type proscribed by Section 8(b)(4)(i)(B).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Union set forth in section III, above, occurring in connec-
tion with the operations of the employers set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings above to the effect that the Union has engaged in unfair
labor practices affecting commerce as defined in Section 8 (b) (4) (1 ) (B) it will be
recommended that it be required to cease and desist therefrom and take such affirm-
ative action as appears necessary and appropriate to effectuate the policies of the
Act.
CONCLUSIONS OF LAW
1. American and Fleetwing are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act
3. By inducing and encouraging employees of Fleetwing to engage in a refusal
in the course of their employment to perform services with an object of forcing
Fleetwing to cease doing business with American, the Union has engaged in an
unfair labor practice within the scope of Section 8(b)(4)(i)(B) of the Act.
4. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case it is recommended that the Union, its officers, agents,
and representatives, shall:
1. Cease and desist from inducing and encouraging individuals employed by
Fleetwing or other persons engaged in commerce or in an industry affecting com-
merce to engage in a refusal in the course of their employment to process, trans-
port, or otherwise handle any goods, articles, materials, or commodities or to per-
form any services where an object thereof is to force or require Fleetwmg or any
other person to cease doing business with American.
2. Take the following affirmative action necessary to effectuate the purposes of
the Act:
(a) Post at its offices, meeting halls, and at all places where the Union custom-
arily posts notices to its members copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, to be furnished by the Regional Director for Region
7, after being duly signed by the Union's authorized representative, shall be posted
I In the event that this Recommended Order is adopted by the Board, 11ie v or( b, "a Deci-
sion and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order is enfoiced by a
decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the voids, "a Decision
and Order."
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by it immediately upon receipt, and maintained thereafter for a period of 60 con-
secutive days. Reasonable steps shall be taken by the Union to insure that said
notices are not altered , defaced, or covered by any other material.
(b) Furnish to the Regional Director for Region 7 for transmittal to and posting
by Fleetwing in its warehouse and by American on its trucks, if either or both be
willing so to post, signed copies of the aforesaid notice.
.(c) Notify the Regional Director for Region 7, in writing , within 20 days from
the date of receipt of this Decision , what steps it has taken to comply herewith.4
IT IS FURTHER RECOMMENDED that unless within 20 days from the date of receipt
of this Decision the Union notify the Regional Director, in writing , that it will
comply with the terms hereof, the Board issue an order requiring it to take such
action.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 299, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT induce or encourage any individuals employed by Fleetwing
Terminal Corporation or any other person engaged in commerce or in an
industry affecting commerce to engage in a refusal in the course of their
employment to process , transport, or otherwise handle any goods, articles,
materials, or commodities with an object of forcing or requiring Fleetwing
or any other employer engaged in commerce to cease doing business with
American Motor Lines, Inc.
LOCAL 299, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
If members have and question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 500
Book Building , 1249 Washington Boulevard , Detroit , Michigan 48226, Telephone
226-3244.
4In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days
from the date of this Decision , what steps the Respondent has taken to comply herewith."
Sonora Sundry Sales, Inc., d/b/a Value Giant and Retail Clerks
Union Local No. 588 , Retail Clerks International Association,
AFL-CIO. Case 2O-CA-3674. November 1, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in any of the alleged unfair labor practices
and recommending that the complaint be dismissed, as set forth in
the attached Trial Examiner 's Decision. Thereafter, the Charging
Party and the General Counsel filed exceptions to the Trial Exam-
161 NLRB No. 53.