Local 61, International Chemical Workers Union

National Labor Relations Board - Board Decisions

Mar 18, 1971

189 N.L.R.B. 60 (N.L.R.B. 1971)

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 61, International Chemical Workers Union and
Sterling Drug, Inc. Case 3-CC-551
March 18, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed by Sterling Drug, Inc., herein
called Sterling, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 3, issued a complaint against the Respondent,
Local 61, International Chemical Workers Union, on
August 24, 1970, alleging that the Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that the Respondent,
in furtherance of a labor dispute with Sterling,
picketed Vogel Van and Storage, Inc. herein called
Vogel, with an object of forcing or requiring Vogel
and other persons to cease doing business with
Sterling, in violation of the Act. The Respondent
thereafter duly filed its answer, admitting in part and
denying in part the allegations of the complaint and
setting forth certain affirmative defenses
On October 22, 1970, the Respondent, Sterling, and
the General Counsel filed a motion to transfer
proceeding to the Board and stipulations. The parties
therein agreed that the formal papers, stipulations,
transcript of a hearing held in the United States
District Court, Northern District of New York, on
August 15, 1970, in the case of Vincent v. Local 61,
International Chemical Workers Union, docketed in
that court as 70-CV-276, and certain memoranda
submitted to the court in that proceeding, should
constitute the entire record in this case. The parties
waived a hearing before a Trial Examiner, the making
of findings of fact and conclusions of law by the Trial
Examiner, and the issuance of a Trial Examiner's
Decision and submitted this case for findings of fact,
conclusions of law, and order directly by the Board.
The parties waived the filing of briefs (other than the
memoranda previously submitted to the court and
included as part of the record herein) and oral
argument.
On October 26, 1970, the Board issued an Order
granting the motion, approving the stipulations and
making them a part of the record, and transferring
this case to the Board for the issuance of a Decision
and Order.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
Upon the basis of the entire record in this
proceeding, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
Sterling is, and has been at all material times
herein, a corporation duly organized under and
existing by virtue of the laws of the State of
Delaware. Sterling maintains its principal office and
place of business at Rensselaer, New York, where it
is engaged in the manufacture of drugs and pharma-
ceuticals and related products. During the past 12
months, Sterling, in the operation of its business,
purchased and received materials valued in excess of
$50,000 directly from outside the State of New York
or from other enterprises located within the Sate of
New York which received said materials directly
from outside the State of New York.
Vogel is, and has been at all material times herein,
a corporation duly organized under and existing by
virtue of the laws of the State of New York. Vogel
maintains its principal office and place of business at
Albany, New York, where it is engaged in the
moving and transportation of goods and in ware-
housing. During the past 12 months Vogel, in the
operation of its business, derived income in excess of
$50,000 from the interstate transportation of goods.
We find that Sterling and Vogel are, and have been
at all times material herein, employers engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act and persons within the meaning of Section
8(b) (4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
We find that the Respondent is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
There is no substantial dispute with respect to the
significant evidentiary facts.
The Respondent represents all the production and
maintenance employees of Sterling at its Winthrop
Laboratories Division Riverside plant, located in
Rensselaer, New York. On June 8, 1970, the
Respondent, in furtherance of its collective-bargain-
ing negotiations with Sterling, engaged in an eco-
nomic strike against Sterling, accompanied by
picketing of the plant.
189 NLRB No. 11
LOCAL 61, INTERNATIONAL CHEMICAL WORKERS UNION
Sterling maintains a warehouse on the plant
premises where it receives and stores materials for
manufacture and where it also stores and ships out
its finished products . Prior to the strike the shipments
of material to Sterling were delivered for the most
part by trucks; only about 20 percent were delivered
by railroad . After the strike Sterling continued its
operations , but with salaried employees not in the
bargaining unit . When deliveries were made to
Sterling , Sterling employees would remove the
supplies from the trucks or railroad cars and store
them in the warehouse.
Two or three days after the start of the strike,
Sterling began to experience difficulties in obtaining
truck deliveries of supplies , because of the picket line
which the truckdrivers refused to cross. Rail deliver-
ies were not interfered with , however , and continued
without impairment . Sterling, accordingly, made an
agreement with Vogel whereby all the truck deliver-
ies originally destined for Sterling were diverted to
Vogel ; Vogel 's employees transferred the supplies to
railroad cars; and the railroad then delivered the cars
to Sterling . There was no storage of any of these
supplies by Vogel , except that if a railroad car was
not filled during the day it would remain overnight
or until it became completely loaded . When the
railroad cars arrived at Sterling ' s plant, Sterling's
employees unloaded them in accord with the
customary practice existing before the strike. The
record indicates that there was no relationship of any
kind between Sterling and Vogel other than that
which exists between two independent contractors.
Vogel 's plant is located across the river about 2 miles
from the Sterling plant and is a completely separate
business entity. ) Sterling in no way supervised
Vogel ' s performance of the foregoing work. Vogel
did not store any outgoing shipments of Sterling's
finished products . It is clear that Vogel did not
supplant the work of any Sterling employees; all
deliveries received by Sterling continued to be
unloaded by Sterling employees.
In furtherance of its labor dispute with Sterling, the
Respondent on or about June 29, 1970 , and again on
or about July 1, 1970 , picketed Vogel at its place of
business . The picket signs stated on one side:
"International Union of Chemical Workers Local 61,
Winthrop Division on Strike." On the other side the
picket sign stated : "Vogel employees forced to do
our work."
Vogel terminated its arrangement with Sterling on
July 1, because of the Respondent 's picketing. When
Vogel so advised the Respondent, the picketing
ceased.
I Vogel had previously done some business with Sterling Several years
earlier Vogel had received and stored large amounts of plastic bottles that
B. Contentions and Conclusions
61
The evidence set forth above shows that the
Respondent picketed Vogel with an object of forcing
or requiring Vogel to cease doing business with
Sterling. The General Counsel and Sterling contend
that such picketing violated Section 8(b)(4)(i) and
(ii)(B) of the Act.
The Respondent, although not contesting the
evidentiary facts found above , disputes the legal
conclusion that the picketing violated the Act. The
Respondent contends that Vogel was an ally of
Sterling, and that its picketing of Vogel , like its
picketing of Sterling , constituted lawful primary
picketing.
We note at the outset that Vogel and Sterling are
wholly independent enterprises . There is no common
ownership , and Sterling does not control the manner
in which Vogel performs any of its business.
Sterling 's arrangement with Vogel was an arm's-
length business arrangement between separate inde-
pendent contractors , and we do not understand that
the Respondent makes any contrary contention. Nor
is there any such close integration of operations as
would make Vogel and Sterling a single employer
within the meaning of the Act . We note further that
Vogel's work for Sterling did not supplant any work
normally done by Sterling employees . Rather, Ster-
ling employees continued to handle all incoming
supplies, regardless of whether they arrived by
railroad or by truck.
The Respondent 's argument is that its primary
picketing of Sterling effectively reduced the flow of
supplies to Sterling: Before the arrangement with
Vogel , only about 20 percent of the normal flow
continued to arrive , representing deliveries by rail-
road, while the remaining 80 percent , which had
arrived by truck prior to the picketing, were lawfully
brought to a halt by the picketing. The Respondent
further argues that when Sterling countered the
effectiveness of this lawful primary picketing by
entering into the arrangement with Vogel, whereby
Vogel received Sterling's diverted truck deliveries
and transferred them to railroad cars for transship-
ment to Sterling , Vogel abandoned the neutrality
which Section 8(b)(4)(B) was designed to protect and
became an ally of Sterling subject to the same lawful
primary pressures as Sterling.
The Board has heretofore been presented with
analogous arguments and found them to be without
merit . In Local 810, Steel, Metals, Alloys and
were shipped to it by railroad and then delivered by truck to Sterling when
and as needed
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hardware Fabricators and Warehousemen, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Fein Can Corpora-
tion and Advance Trucking Corporation), 131 NLRB
59, 71, for example, the union had argued , in defense
of an 8(b)(4)(B) allegation , that the secondary
employer was an ally of the primary employer
because he rendered services which were essential to
the primary employer and tended to detract from the
effectiveness of the strike against the primary
employer. The so-called secondary employer, the
argument continued , thus deprived himself of the
neutral status to which he might otherwise be
entitled . The argument was rejected on the ground
that the services rendered to the primary employer
did not constitute work which the primary employer
himself would have done but for the strike.2 Again in
Local 868, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(Mercer Storage Company, Inc., and Mid-County
Buick, Inc.), 156 NLRB 67, 70, the Board noted that
the secondary employer' s business increased as a
result of the strike against the primary employer and
constituted business which the secondary employer
would not have had but for the strike , and that the
purpose and effect of this new business was to avoid
the impact of the strike on the primary employer and
assist him in combatting the strike . But the Board
held that this was not enough to invoke the "ally"
doctrine , since the secondary employer was not
doing work which would otherwise have been done
by the primary employer and his striking employees.
Drawing the line between permitted and prohibited
union pressures against employers requires an
accomodation between dual congressional objec-
tives: protecting truly neutral employers while at the
same time not diminishing in any way a union's right
to engage in economic action against the employer
with whom the union has a labor dispute, even if that
employer takes evasive action by farming out struck
work . The facts in this case convince us that Vogel is
a neutral employer who was not doing any struck
work for Sterling. We, accordingly, find the
Respondent 's arguments to be without merit and
conclude that the Respondent has violated Section
8(b)(4)(i) and (n)(B) of the Act.
Conclusion of Law
By picketing Vogel with an object of forcing or
requiring it to cease doing business with Sterling, the
Respondent has engaged in an unfair labor practice
affecting commerce within the meaning of Section
L the Court of Appeals for the Second Circuit enforced the Board's
Decision and Order 299 F 2d 636 See also Western States Regional Council
No 3, International Woodi corkers of America, AFL-CIO (Priest Logging,
inc ), 137 NLRB 352 enfd 319 F 2d 655 (C A 9)
8(b)(4)(i ) and (n )(B) and Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 61, International Chemical Workers Union, its
officers, agents, and representatives, shall:
1. Cease and desist from'
(a) Inducing or encouraging any individual em-
ployed by Vogel Van and Storage, inc , or any other
person to engage in a strike or refusal in the course of
his employment to perform any services, where an
object is forcing or requiring Vogel Van and Storage,
Inc., or any other person to cease doing business with
Sterling Drug, Inc.
(b) Threatening, coercing, or restraining Vogel Van
and Storage, Inc., or any other person, where an
object is forcing or requiring Vogel Van and Storage,
Inc , or any other person to cease doing business with
Sterling Drug, inc.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act'
(a) Post at its offices and meeting halls copies of the
attached notice marked "Appendix." I 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 Respon-
dent 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material
(b) Furnish to the Regional Director copies of the
notice for posting by Sterling Drug, Inc , and Vogel
Van and Storage, Inc., if willing, in places where they
customarily post notices to their employees.
(c) Notify the Regional Director in writing , within
20 days from the date of this Order, what steps have
been taken to comply herewith.
i In the event that this 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 ORDER
OF THE NATIONAL LABOR RELATIONS BOARD"
APPENDIX
NOTICE ro EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States
Government
LOCAL 61, INTERNATIONAL CHEMICAL WORKERS UNION
WI WILL NOT induce or encourage any individu-
al employed by Vogel Van and Storage, Inc., or
any other person to engage in a strike or a refusal
in the course of his employment to perform any
services, nor will we threaten, coerce, or restrain
Vogel Van and Storage, Inc , or any other person,
where in either case an object thereof is forcing or
requiring Vogel Van and Storage, Inc., or any
other person to cease doing business with Sterling
Drug, Inc.
LOCAL 61,
INTERNATIONAL
CHEMICAL WORKERS
UNION
(Labor Organization)
62 A
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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
Office, Fourth Floor, The 120 Building, 120 Delaware
Avenue, Buffalo, New York 14202, Telephone
716-842-3100.