Local 705, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Feb 20, 1961

130 N.L.R.B. 558 (N.L.R.B. 1961)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Congress finds that , in the public interest , it continues to be the respon-
sibility of the Federal Government to protect employees' rights to organize,
choose their own representatives , bargain collectively , and otherwise engage in
concerted activities for their mutual aid or protection. . . .
Turning back to a point noted early in these "Conclusions ": the Unions' con-
cession that for a brief period before the filing of the charge the Unions were
picketing for an object declared unlawful by the recent amendments . In view of the
prompt action by the Unions to publicize its withdrawal of that object , the Trial
Examiner perceives no reason to believe that a cease-and-desist recommendation
would further effectuate the policies of the Act.
Finally, it is concluded and found that the evidence does not sustain the allegation
that the Respondents have violated Section 8 (b) (7) (C) of the Act.
Under all the circumstances described above, the Trial Examiner will recommend
that the complaint be dismissed in its entirety . To hold otherwise , he believes,
would be to lend applause to the spectacle of nimble employers thus playing juris-
dictional hopscotch on the graves of employee rights.
[Recommendations omitted from publication.]
Local 705, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America ; Louis Peick , its Sec-
retary and Treasurer ; Joseph Desmyter , Business Agent and
Cartage and Terminal Management Corporation . Case No.
13-CP-3. February 20, 1961
DECISION AND ORDER
On May 20, 1960, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices within the meaning of Section 8(b) (7) (C) of the
Act, and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner further found that the
Respondents had not violated Section 8(b) (1) (A) of the Act. There-
after the Respondents and the General Counsel filed exceptions to the
Intermediate Report and briefs. On September 8, 1960, oral argu-
ment was held before the Board in Washington, D.C.; the General
Counsel, the Respondents, and the Charging Party participated.
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 Inter-
mediate Report, the exceptions, the briefs, the oral argument,' and.
the entire record in the case, and hereby adopts the findings, conclu
sions, and recommendations of the Trial Examiner, with the follow-
ing modifications.
The Board Members unanimously agree on the evidentiary facts
found by the Trial Examiner : Particularly, that the Respondents
1 Members Rodgers and Kimball, although not present at the oral argument , have con-
sidered the transcript thereof.
130 NLRB No. 70.
LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 559'
picketed Cartage for more than a reasonable period of time after No-
vember 13, 1959, the effective date of Section 8(b) (7) (C), without
filing an election petition; an object of the picketing was to force
Cartage (1) to employ certain union members (the former Riss
drivers) for work it was then performing without union members,
and (2) to recognize and bargain with the Union as the representative
of such employees, although the Union was not currently certified as
their representative. Moreover, the picketing had the effect of in-
ducing stoppages of deliveries.
The Respondents argue that the picketing nevertheless did not
violate Section 8(b) (7) (C), principally on the ground that no recog-
nition dispute was involved, that Cartage in fact recognized the Union
as the representative of the former Riss drivers, and that the only
dispute was over the terms and conditions of their employment. In
our opinion this constitutes an admission of the alleged violation, for
Section 8(b) (7) (C) prohibits picketing not only with an object of
forcing an employer to recognize a labor organization, but also, as the
Respondents here concede to be the case, with an object of forcing an
employer to bargain with a labor organization. Moreover, the facts
do not support the argument that recognition was not an object of
the picketing. In Lewis Food Company, 115 NLRB 890, 892, for ex-
ample, a union struck an employer to force the reinstatement of cer-
tain discharged employees; and the Board rejected a similar argu-
ment and found that an object or purpose of the strike was to require
the employer to recognize and bargain with the union "as to this
matter." 2
Nor can we accept the reasoning of our dissenting colleague that
because the picketing here might be deemed to violate Section 8 (b)
(4) (D), it cannot for that reason be found to be a violation of Section
8(b) (7) (C). The Board has held that conduct which violates Section
8 (b) (4) (D) of the Act may also violate other sections of the Act, such
as 8 (b) (4) (A) 3 and 8 (b) (2),' and we perceive nothing in the nature
of the conduct prescribed by Section 8(b) (7) (C) which precludes ap-
plication of the principle of the cited cases to the instant case.'
2 Accord - Maeatee, Inc, 127 NLRB 683; General Ore, Inc, 126 NLRB 172; West
Seattle Dodge Company, 125 NLRB 729; Industrial Chrome Plating Company, 121
NLRB 1298 See also Blinne Construction Company, 130 NLRB 587, with respect to
the Respondents' argument that the picketing was in protest against alleged unfair labor
practices by Cartage. Member Fanning believes that the Respondent's picketing in this
case had as its object recognition as majority representative of applicants (Riss' drivers)
for employment with Cartage at a time when Cartage had no employees. He therefore
does not rely on his colleagues' further finding, in reliance on the Lewis Food Company
case, that a strike to force reinstatement of discharged employees constitutes a strike
for recognition, or that the Respondent's picketing was to force such reinstatement.
-8 United Brotherhood of Carpenters and Joiners, etc., et al. (Wendnagel & Company),
119 NLRB 1444, set aside on other grounds 261 F. 2d 166 (C.A. 7).
'Local Union No. 48, Sheet Metal Workers, etc., et al. (Acousti Engineering of
Alabama, Inc ), 120 NLRB 212.
5 As Member Fanning is not convinced that the facts in this case indicate a juris-
dictional dispute in the sense of Section 8(b) (4) (D), he deems it unnecessary to decide
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find, in agreement with the Trial Examiner's con-
clusion, although not with his reasoning, that the Respondents vio-
lated Section 8(b) (7) (C) of the Act by picketing Cartage for more
than a reasonable period of time after November 13, 1959, without
filing an election petition. We shall therefore order the Respondents
to cease and desist from the unfair labor practice found and to take
the affirmative action set forth below.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of
-the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Local 705, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, representatives, agents (including Louis Peick
and Joseph Desmyter), successors, and assigns, shall :
1. Cease and desist from picketing or causing to be picketed Cartage
and Terminal Management Corporation, where an object thereof is
forcing or requiring said corporation to recognize or bargain with
them as the representative of its employees, in violation of Section
8(b) (7) (C) of the Act.
2. Take the following affirmative action which the Board finds will
^efectuate the policies of the Act :
(a) Post at its business offices and meeting halls copies of the notice
attached hereto marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the Respondent's authorized representa-
tives, be posted by the Respondents immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to members are
,customarily posted. Reasonable steps shall be taken by the Respond-
ents to insure that said notices are not altered, defaced, or covered by
any other material.
(b) Furnish to the Regional Director for the Thirteenth Region
signed copies of said notice for posting at Cartage's offices in places
where notices to employees are customarily posted. The other pro-
visions of the preceding paragraph shall apply insofar as applicable.
(c) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
whether picketing which constitutes a violation of Section 8(b) (4) (D) does or does not
violate the provisions of Section 8(b) (7) (C).
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 561
IT IS FURTHER ORDERED that the allegations of the complaint that the
Respondents violated Section 8(b) (1) (A) of the Act be, and they
hereby are, dismissed.
MEMBER KIMBALL, dissenting :
I am in agreement with the factual finding of the Board majority
that the Union in picketing the Cartage and Terminal Management
Corporation had as an object of such picketing the forcing of Cartage
to assign work to one "class" of employees, to wit : The drivers previ-
ously employed by Riss, and the displacement of employees, as the
Trial Examiner found, to whom Cartage had assigned such work.
I am unable to agree however with the conclusion of law reached
by the majority of the Board that the picketing thus described vio-
lated Section 8(b) (7) (C) of the Act as alleged in the complaint.
Upon the facts described, it is my view that such picketing falls within
the ambit of Section 8(b) (4) (D), as amended by the Landrum-
Griffin Act, for such picketing does "threaten, coerce, or restrain [a]
person engaged in commerce or in an industry affecting commerce
[to wit, Cartage]," when such picketing has as in the instant case an
object of
(D) forcing or requiring any employer [Cartage] to assign
particular work to employees in a particular labor organization
or in a particular . . . class [to wit, former employees of Riss]
rather than to employees in another . . . class [to wit, the present
employees of Cartage], unless such employer is failing to conform
to an order or certification of the Board determining the bargain-
ing representative for employees performing such work :
I would point out that Section 8(b) (7) (C) of the Act applies to
picketing having as an object the forcing of an employer to recognize
and bargain with a labor organization as the representative "of his
[the employer's] employees," which is not the situation in the instant
case. Instead, the object in this case was displacement of such em-
ployer's employees by the former employees of the predecessor em-
ployer, Riss.
To conclude that Congress in enacting 8(b) (7) (C) could have in-
tended that the situation here presented could fall into both sections
of the Act should not lightly be inferred, for it is a sound rule of
statutory construction to apply that portion of the Act which more
nearly covers the situation existing rather than to attempt to extend
and apply another portion of the Act of doubtful application.
Therefore, in view of the wording of Section 8(b) (7) (C) and the
complete absence of legislative history to support the view of the
5372:14-61-vo1. 130-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority, I believe that the clear meaning of that section cannot with
validity be expanded to cover the present case. Accordingly, I would
dismiss the 8 (b) (7) (C) complaint in its entirety.
APPENDIX
NOTICE TO MEMBERS AND TO EMPLOYEES OF CARTAGE AND TERMINAL
MANAGEMENT CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that :
WE WILL NOT picket or cause to be picketed Cartage and Ter-
minal Management Corporation, where an object thereof is forc-
ing or requiring said corporation to recognize or bargain with us
as the representative of its employees, in violation of Section
8 (b) (7) (C) of the Act.
LOCAL 705, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, W'VAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
Dated---------------- -------------------------------------
(Louis PEICK)
Dated---------------- -------------------------------------
(SOSEPH DESMYTER)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended (61 Stat. 136; 73 Stat. 519), hereinafter called the Act. The amendment,
contained in Public Law 86-257 (Labor-Management Reporting and Disclosure Act
of 1959, enacted September 14, 1959 ), to be considered , is Section 8(b) (7), to be
read in conjunction with Section 8(b)(1)(A ) of the Act before amendment by
Public Law 86-257.
Upon a charge filed on December 18, 1959 , by Cartage and Terminal Management
Corporation (hereinafter sometimes called Cartage or the Charging Party), the
General Counsel of the National Labor Relations Board on behalf of the Board, by
the Regional Director for the Thirteenth Region, on January 22, 1960, issued a com-
plaint and notice of hearing against Local 705, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America ; Louis Peick, its secre-
tary and treasurer ; and Joseph Desmyter , business agent , as Respondents , asserting
violations by them of the provisions of the Act mentioned above. The Respondents
filed timely answer to,the complaint , effectively denying the allegations of substan-
tive violations of the Act.
This matter came to be heard before the duly designated Trial Examiner at Chi-
cago, Illinois, on February 23, 1960. The General Counsel, the Charging Party
LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 563
(Cartage), and the Respondents (the Union and its named representatives) were
represented by counsel. At the hearing, it was stipulated between counsel, and the
stipulation was received, that the record in Board Case No. 13-CC-216 (not pub-
lished in NLRB volumes), heard by this Trial Examiner on December 16, 17, 18, and
21, 1959 (including the stenographic transcript of testimony and all exhibits), be
considered as containing all of the facts necessary to the determination of this pro-
ceeding. Accordingly, the findings of fact and conclusions of law contained herein
are based on the whole of the evidence taken at the prior hearing in Case No.
13-CC-216.
At the hearing herein, oral argument was waived. The General Counsel by
counsel has submitted a brief and counsel for the Respondents has submitted pro-
posed findings of fact and conclusions and a brief. The Respondents' motion to
dismiss the complaint, as renewed at the hearing, is disposed of by the findings set
forth below.
The complaint as amended in this case (Case No. 13-CP-3) sets forth that Riss
& Company (hereinafter sometimes called Riss) is a common motor carrier of
freight in interstate commerce, and maintains terminals in several cities, including
one in Chicago, Illinois; that Cartage, engaged in local carrier service, handles local
pickup and delivery of freight for Riss at the Chicago terminal and in other places;
that the Respondent Union and its agents, Louis Peick and Joseph Desmyter, on or
about November 13, 1959, engaged in picketing Cartage, "and were causing Cartage
to be picketed and since that time has continued to picket and cause Cartage to be
picketed at the Riss Company terminal in Chicago"; and that the Respondents en-
gaged in and continue to engage in these activities, an object or objects thereof being
to force and require: (a) Cartage to recognize and bargain with Respondent Union
as the collective-bargaining representative of the employees of Cartage; and (b) the
employees of Cartage to accept and select Respondent Union as their collective-
bargaining representative.
The complaint goes on to allege that the Respondent Union at the times mentioned
above was not and is not now currently certified as the representative of the em-
ployees of Cartage, and that the Respondents and each of them engaged in such
activities without a valid petition under Section 9(c) of the Act, involving employees
of Cartage, having been filed within a reasonable period of time from the com-
mencement of such picketing.
Certain amendments to the complaint were received over the objection of counsel
for the Respondents in Case No. 13-CC-216, at the opening of that hearing on
December 16, 1959, to bring Desmyter into the case, to allege that he on or about
September 23, and on or about October 5, 1959, threatened employees with bodily
harm if they did not support the strike of the Union and the picketing of the Riss
terminal or to cease working or handling goods for Cartage. The effect of the
amendments allowed then, which included one to show that the complaint there
concerned violation of Section 8(b)(1)(A) as well as Section 8(b)(4)(A) of the
Act, did not at that time much affect, in the opinion of the Trial Examiner, the
merits of the case. The amendments were made prior to the taking of testimony.'
In the instant case the General Counsel asserts actions on the part of the Respond-
ents constituting unfair labor practices within the meaning of Section 8(b) (1) (A)
and 8 (b) (7) of the Act.
Upon the record as a whole, including the testimony of witnesses upon the stipu-
lated record, heard by me in Case No. 13-CC-216, all the exhibits, and upon care-
ful consideration, I make the following:
i Prior to the hearing in Case No. 13-CC-216, the Regional Director for the Thirteenth
Region in Madden, et at. v. Local 705, et at., had petitioned the United States District
Court, Northern District of Illinois, Eastern Division, for an injunction under Section
10(1) of the Act. That case was heard before the Honorable Michael L. Igoe, District
Judge. Case No. 59-C-1657. Judge Igoe filed his findings of fact and opinion in that
case on October 31, 1959, 45 LRRM 2260. Before the hearing in this case on February 23,
1960, Judge Igoe had received another application for injunction from the Regional
Director which he denied. Case No. 60-C-79, February 16, 1960, 46 LRRM 2064. In each
of the proceedings before him under Section 10(1), Judge Igoe made findings of fact and
conclusions which I have been asked to notice and have so done.
If in this report I differ from the findings of fact of Judge Igoe, it is because he was
asked on "reasonable cause to believe" the facts set forth in a petition under Section 10(1)
and after hearing to enjoin, whereas my task now is to fully consider the case and to
make final recommended findings.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
(a) Riss & Company, Inc., is, 'and at all times material herein has been , a corpora-
tion incorporated and existing under the laws of the State of Missouri , having its
principal office at Kansas City , Missouri , where it is engaged as a common motor
carrier of freight and operates in and through various States of the United States and
maintains terminals in various cities in several States, including a terminal in Chicago,
Illinois. Riss annually receives a gross revenue in excess of $1,000,000 for the
transportation of freight between its Chicago , Illinois, terminal and terminals located
in other States.
(b) Cartage and Terminal Management Corporation is, and at all times material
herein has been , a corporation incorporated under the laws of the State of Michigan,
having its principal office at Melvindale , Michigan . Cartage is engaged in the local
cartage business in Detroit, Michigan; Kearny, New Jersey; Denver, Colorado;
Kansas City and St. Louis, Missouri; and Chicago, Illinois; in each of which cities
it handles local pickup and delivery of freight for Riss. Cartage annually receives a
gross revenue in excess of $50,000 for the services it performs for Riss & Company.
In Chicago , Illinois, Cartage occupies and utilizes a Riss terminal in connection with
its operations . Cartage is, and at all times material herein has been, engaged in
commerce and its business operations affect and have affected commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 705, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America; Louis Peick, its secretary and treasurer; and Joseph Des-
myter, business agent , are Respondents herein . Said Union is a labor organization
within the meaning of Section 2(5) of the Act; Peick is and has been secretary and
treasurer of said Union and the agent of Respondent Union within the meaning of
Sections 8(b) and 2(13) of the Act; and Joseph Desmyter is, and at all times ma-
terial has been , a business agent of said Union , and the agent of said Union within the
meaning of Sections 8(b) and 2(13) of the Act.
III. THE UNFAIR LABOR PRACTICES
The parties are not in substantial disagreement on the facts giving rise to this
dispute, as shown in the briefs filed on their respective behalfs. They are not at
all in accord on the answers to the questions of law to be decided on the basis of
the facts as disclosed by the record, nor the interpretation of Section 8(b) (7) (C)
of the Act as applied to the facts herein.
Briefly, the facts are these:
Riss, prior to August 21, 1959, trucked goods into the Chicago area to its ter-
minal in Chicago and performed its own local pickup and delivery work with its
own equipment and employees. On this date Riss entered into a contract with Car-
tage, under which Cartage agreed to take over the local pickup and delivery work
which Riss had theretofore been doing for itself . The arrangement made under
this contract was practically identical in terms to other contracts in other cities
between Riss and Cartage . What is referred to as the original agreement between
these two employers was contained in the letter dated January 16, 1958, directed
to Joseph C. Bromley, president of Cartage, by R. R. Riss, Sr., president of Riss,
and accepted by Bromley, to cover pickup and delivery of freight by Cartage for
Riss in the Detroit commercial zone. The terms of that original agreement, referred
to below, were accepted as applicable to the service to be furnished by Cartage to
Riss in Chicago, as evidenced by an agreement between the two companies dated
August 21, 1959.
At the time the Chicago agreement was entered into, Riss employed some 11 or
12 drivers to handle the local pickup and delivery work, these men being repre-
sented for purposes of collective bargaining by the Respondent Union, as shown
by a written agreement between the Union and Riss, such agreement by its terms
to cover the period January 1, 1958, through December 31, 1960.
On September 4, 1959, President Bromley of Cartage and Arthur Tisch, vice
president-secretary of Cartage, called at the office of the Union for the purpose of
entering into a contract covering the operations of Cartage in Chicago in connec-
tion with the pickup and delivery work to be done for Piss This meeting had been
arranged by an appointment made by Bromley with officials of Local 705. Robert
Blazewick, terminal manager for Riss at Chicago, attended the meeting. Bromley
and Tisch conferred with Louis Peick, secretary-treasurer of the Union, and Joseph
LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 565
Desmyter, one of its business agents. The company representatives informed the
union representatives that they had come to sign a contract covering the present
employees at Riss; upon inquiry, Bromley told Peick that he did not intend to lay
off any of the Riss drivers, but, on the contrary, would take over the then present
complement of personnel "and all the attendant benefits."
At the time of this September 4 meeting, no date had been set for the taking over
of local operations by Cartage. At this meeting the union representatives learned
that Cartage would not own any physical assets in the State of Illinois (their prin-
cipal place of business being at Melvindale, Michigan) and therefore requested a
letter from Riss guaranteeing the drivers formerly employed by Riss to be employed
by Cartage 2 weeks' wages and vacation pay as a guarantee against repetition of
when, once before, Riss had turned over its local operations to another company
that had subsequently gone out of business without meeting its full wave obliga-
tions to its employees-the Union wanted a guarantee of Cartage's performance
so as to protect members of the Union in the event Cartage should default on its
contract obligations at any time in the future. Bromley at that meeting indicated
that he could not commit Riss but that he would discuss the matter with that com-
pany. After some further discussion, Bromley signed two copies of a labor con-
tract which contained terms and conditions identical to those in the current agree-
ment between Riss and the Respondent Union. These copies were not executed
by anyone on behalf of the Union, but were retained by the union representatives,
Peick making it clear that whether or not the Union would enter into a contract
with Cartage would depend on whether Riss would become Cartage's guarantor and
whether the Union's executive board would consider the matter further. At this
time Cartage did not question the Union's majority status.
About a week later, Peick presented the facts to the executive board of the Union
in connection with the proposition of Cartage through Bromley and Tisch, and ex-
plained that as a part of the negotiations and before he would agree to a contract
with Cartage, he was insisting on the guarantee from Riss. Upon the approval of
the executive board concerning the actions taken by Peick and Desmyter, Peick
and the president of the Union signed contracts previously signed by Bromley as
president of Cartage.
On September 17, Vice President-Secretary Tisch, accompanied by an attorney,
called at the union office to determine whether Cartage had a contract with the
Union. Peick informed the attorney that the contracts had been signed on behalf
of the Union and asked whether he and Tisch had brought the guarantee from Riss
as insisted upon by the Union. Tisch and his attorney were unable to produce a
written guarantee; Peick refused to turn over a copy of the contract previously
signed by Cartage and signed a week later by representatives of the Union, on the
ground that he had signed only because he understood, and had so assured the
executive board, that the performance of Cartage of the terms and conditions of
the collective agreement had to be guaranteed by Riss. After further discussion
between the parties concerning the manner in which Cartage intended to conduct
its business, Tisch and the attorney left without the contract, both copies of which
remained in possession of the Union. At no time was the Union supplied with the
guarantee from Riss which it insisted on as a part of any contractual relationship
it would enter into with Cartage.
Cartage had established its Chicago headquarters at the Riss terminal.
On September 21, 1959, Cartage began its Chicago operations, whereupon the
Union immediately began picketing Riss at the Riss terminal because, it claimed,
Riss had failed to take the proper steps under its collective agreement with the
Union to terminate the Riss drivers and thus had engaged in a lockout when it
turned its local operations over to Cartage on September 21. The Union was
successful in its contentions and by September 24 the Riss drivers were put back
to work and continued to work for Riss through October 2.
Under date of October 1, 1959, President Riss addressed a notice to all employees
of Riss & Company, Inc., members of Local Union 705, reminding them that Riss
& Company, Inc , had entered into a contract with Cartage for local pickup and
delivery service in the Chicago area; that a representative of Cartage had previously
talked with them regarding employment with that Company; that Riss "has re-
quired' that Cartage attempt to employ all previous employees of Riss in accord-
ance with their seniority status at Riss; that a representative of Cartage "will be at
the Riss terminal on Friday, October 2, at 9 a in. and throughout the day to talk
to you"; and finally, "This will be your termination notice as an employee of Riss
and Co Inc. and enclosed is your check for wages due through October 2, 1959."
At the meeting of September 17, between Tisch and his attorney for Cartage and
Peick for the Union, the matter of Cartage's plan to pay drivers on a commission
basis without regard to the hours worked first came up. Between September 14
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 17, Tisch was engaged in efforts to negotiate terms of hire with individual Riss
drivers on conditions the Respondent Union says were in violation of the collective
agreement between it and Cartage, which , it has always maintained , became effec-
tive upon the acceptance by the executive board of Bromley's signature and the
execution of the agreement by authorized union representatives. The General
Counsel says, for reasons stated below, that that contract never became effective.
Between September 17 and 21, Tisch had interviewed men who responded to
advertisements placed in newspapers seeking drivers who owned their own tractors.
On October 5, Cartage attempted to resume operations in the Chicago area and
the Union again picketed at the Riss terminal, this time the picketing being directed
against Cartage. The Union has maintained a picket line made up of former Riss
drivers as pickets, since October 5.
Cartage, on October 13, sent a telegram to the Union . This telegram , signed by
Bromley as president of Cartage, read:
My signature on proposed contract is withdrawn and is to be of no force or
effect. I do not consider that any agreement is in effect between 705 and our
company.
On the following day the Union by Peick sent a reply telegram to Bromley, as
follows :
In regard to your telegram of this date this is to inform you that we do not
regard your attempted unilateral action as affecting the validity of the contract.
The contract remains in full force and effect.
Between September 17 and 21, drivers responding to the advertisements placed in
newspapers and interviewed and hired by Tisch , on October 5 signed a contract with
and became employees of Cartage.
The record shows that in each of the cities where Cartage performs local pickup
and delivery for Riss (including Chicago) Cartage enters into a written agreement
with drivers which provides that the driver shall furnish equipment owned or leased
by him , the equipment being a tractor and Riss supplying the trailer , the driver to
maintain his tractor at his own expense, to pay all taxes , pay all license fees, pay all
operating costs of his tractor, pay for any additional substitute or relief driver's
wages, provide and pay for workman 's compensation , be responsible for all damage
to tractor and trailer resulting from his own negligence , to authorize Cartage to
deduct without limit any charge incurred in the operation of the tractor , pay for all
vacation pay, holiday pay, and welfare and pension fund charges. Under this agree-
ment , a driver is compensated for his services at a specified rate per hundredweight
picked up and delivered; the rate may vary according to whether it is a full truckload
or a less than a truckload. Payment under this agreement is provided for by check
payment at ,the end of each week . The agreement continues subject to termination
by either party Cartage or the driver, at any time upon 30 days' written notice.
In the interim September 14 to 17, 1959 , it seems clear enough that Desmyter
brought to the attention of Tisch , provisions in the contract covering owner -drivers
and told Tisch that if Cartage wanted to buy the trucks and pay the men by the hour
they could take over the operation.
The General 'Counsel says that there is not and never has been a collective-
bargaining agreement in effect between Cartage and Local 705. Therefore , he says,
the picketing of Cartage by the Respondent Union clearly is for the purpose of
forcing or requiring the Charging Party (Cartage ) to recognize or bargain with the
Union as the representative of Cartage's employees and therefore is proscribed by
Section 8(b) (7) of the Act. He contends that employees involved are those persons
hired by Cartage to drive for it after the Riss drivers rejected the offer of Cartage to
employ them. The General Counsel says that should it be found that there is a
collective-bargaining agreement in effect between Cartage and the Union , the picket-
ing being conducted by the Union is still for the object proscribed by Section 8(b) (7)
of the Act.
The Respondents take the position that the facts herein show that a valid contract
was entered into between Cartage and the Respondents and that Cartage was and is
now bound by the terms thereof. Left to be decided is the question of whether the
employees of Cartage are driver-employees or independent contractors and whether
or not the picketing at the premises of Cartage, which necessarily includes picketing
the premises of Riss, constitutes action proscribed by Section 8(b) (7) of the Act.
The brief filed by each of counsel fairly presents the position of each party. The
proposed findings of facts and conclusions of law submitted to me by counsel for
the Respondents will be, as is apparent, adopted by me only in part. These findings,
obviously , are based upon the opinion of Judge Igoe in the cases mentioned in foot-
note 1, above. -
LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 567
I have examined with some care the cases cited by counsel for the General Counsel
in support of his position in connection with whether or not there was and is a con-
tract in existence between Cartage and the Union.2 Continuing his argument he says
that whe the common law doctrine of "right of control" is applied to this case it is
apparent that the persons who went to work for Cartage on September 21 and again
on October 5, 1959, are employees and not independent contractors. I agree.
Because of the mere fact that the dispatcher of Riss informs Cartage concerning
destination of pickups and deliveries and further because the employees, or so-called
contract drivers, follow routings as given to Cartage by the Riss dispatcher, does not
weaken the control of Cartage over these drivers.
I think that the drivers (other than the former Riss employees) employed directly
by Cartage are employees of Cartage because of the manner in which business is
done. Cartage directs completely the way in which the drivers go about the daily
business of picking up and delivering freight. They perform, it seems, in no manner
different from that in which the drivers of Riss did the same work when Riss con-
trolled directly pickup and delivery service before Cartage came into the picture.
Calls to the Riss terminal from a customer who wants freight picked up is routed
to a city driver through Cartage upon information furnished by the Riss dispatcher.
The driver takes his truck to the point where the freight is waiting, loads it on his
truck and brings it back to the terminal. Concerning incoming freight, it is removed
from a Riss over-the-road truck at the Riss terminal and placed on a city truck and
carted from there by the city driver to the consignee. I agree with the General
Counsel that the only real difference in operations is that while ultimate or the
last supervision formerly lay with Riss over the Riss drivers, it now lies with Cartage
over Cartage drivers. Further, as is shown by the evidence herein, the Cartage
driver did not need to own a tractor to go to work for Cartage at the time it was
setting up its Chicago operation-Cartage offered to arrange for former Riss drivers
to have the use of a tractor for a time if they wanted to try out Cartage on the terms
Cartage offered them.
On the narrow issue of fact involved herein I believe there is sufficient evidence in
the record to show that Cartage exercises control over its employees and controls
the work. The mere fact of close association of quarters between Riss and Cartage
seems to me to have no bearing on the ultimate effect of control of Cartage of its
own drivers, whether hired through the advertisements and working under the con-
tract between them and Cartage, or whether there is or is not a contract between
Cartage and the Union.
With respect to the findings of fact and conclusions of law as proposed by counsel
for the Union, I adopt as my own the proposed finding that Respondent Local 705
is not currently certified as the representative of any of the drivers of Cartage; I
adopt his proposed finding as my own that since on or about October 5, 1959,
Respondents have picketed Cartage and said picketing has been conducted for more
than 30 days after November 13, 1959, without the filing of a petition under Section
9(c) of the Act for a Board election; I adopt his proposed finding that since October
5, 1959, employees from various companies have driven up to the entrance to the
terminal where Cartage is being picketed, to make pickups or deliveries, and have
failed to make some pickups and deliveries.
Although, as pointed out above, the Riss dispatcher routed local pickup and
delivery service made by the employees of Cartage (the so-called contract drivers,
Poston, Watts, Rollins, and Brunt), the fact is that the drivers acted directly under
the orders of Tisch until there came a time when Cartage abandoned its efforts to
make pickups and deliveries through its own drivers because of the picketing con-
ducted by the Union at the premises occupied jointly by Riss and Cartage. .I can
find no basis of fact on which to rest a finding that the signing of the union agree-
ment by Bromley and the later signing of the agreement by the union representative
constituted, in the circumstances, a contract between Cartage and the Union. The
condition laid down by the Union to the effect that Riss be required to guarantee pay-
ment of wages for the drivers to be taken over by Cartage, imposed a condition that
was never fulfilled. There was no complete meeting of the minds. I do not see how
the Union with justification can claim that Cartage reached an existing agreement
covering the ex-Riss drivers when the Union itself imposed the condition it did before
allowing them to go to work for Cartage.
2 General Counsel cites in support of his position that owner-driver employees are not
independent contractors He has cited National Van Lines, 123 NLRB 1272; Standard
Trucking Company. 122 NLRB 761 ; G. L Allen Company, 117 NLRB 1055 ; National
Van Lines, 117 NLRB 1213; New Orleans Furniture Manufacturanq Co., 115 NLRB 1494;
Local 148, Truck Drsvers and Warehousemen's Union, etc (Harry Griffin Trucking),
114 NLRB 1494; and Hoster Supply Company, 109 NLRB 466.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel is precisely right, I think, when he says that the telegram
of October 13 sent by Bromley to the Union only reaffirmed the fact that Bromley
had not ever agreed to the terms and conditions imposed beyond the agreement
which he signed and that, therefore, the agreement itself never went into effect.
The reply of the Union on October 14 to that telegram to the effect that it claimed
the contract to be in full force and effect was a claim or statement of position only,
which I find, on the facts, was not valid.
If I understand the position of the Union correctly, it has always maintained
that Riss, for whose employees the Union was the recognized collective-bargaining
representative, had a right to go out of the local cartage business in Chicago and
terminate its local drivers as long as the discharges were effected in accordance
with the terms of the contract between Riss and the Union.
It is clear enough that the dispute between September 1 and 24 grew out of the
failure of Riss to follow the contract in discharging or the way in which it dis-
charged its drivers and the dispute was between Riss and the Union and not Cartage
and the Union. Between September 24 and October 5, the Union does not dispute
that Riss had the right as management prerogative to desert the local Cartage business
and have the right to discharge those drivers engaged in making local pickup and
delivery service according to the terms of the agreement between Riss and the
Union. I find that on and after October 5 the Union had no dispute with Riss.
Whether the Union may assert a dispute with Riss because of the possible failure
of Riss to abide by its collective-bargaining agreement with the Union is not of
importance here, except to show that the dispute, as evidenced by picketing, grew
into a claim of the Union against Cartage and that the picketing conducted by the
Respondents is against Cartage, and is in the absence of a valid contract or collective
agreement between Cartage and the Union. I think it is demonstrated that the
picketing of Cartage can be only for the purpose of forcing or requiring Cartage to
bargain with the Union. Business Agent Desmyter, in answer to a question put to
him by the General Counsel, testified that picketing against Cartage was for the
reason that the Union represented the employees of Cartage because "he has a signed
contract . . . he [Bromley] claimed he would put all our men to work which he
did not do." The picketing conducted by the ex-drivers of Riss at the terminal was
supported by a placard in the first instance reading:
MEMBERS
OF
LOCAL 705
I. B. of T.
ON
STRIKE
On October 5 or 7, the words on the placard were enlarged to include the name
of Cartage and Terminal Management Corporation.
I think that the picketing conducted was and is peaceful picketing within the
purview of the decisions of the Board and the courts, which are too numerous to
mention . The facts show that there were no real acts of violence and that the
activities engaged in by members of the Union in support of their picketing, were
the ordinary types of suggestion in this kind of situation made to drivers coming into
the terminal to persuade them that they should not go through the picket line I find
no substantial evidence to indicate that anyone was threatened or coerced by either
the pickets or union representative.
Concluding Findings
The pertinent provisions of the Act, to be considered herein with regard to alleged
violations, are these provisions of Section 8(b) (7) (C) :
SEc. 8. (b) It shall be an unfair labor practice for a labor organization or
its agents-
(7) to picket or cause to be picketed, or threaten to picket or cause to
to be picketed, any employer where an object thereof is forcing or requiring
an employer to recognize or bargain with a labor organization as the
representative of his employees, or forcing or requiring the employees of
an employer to accept or select such labor organization as their collective
bargaining representative, unless such labor organization is currently certi-
fied as the representative of such employees:
* * * * * * *
LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 569
(C) where such picketing has been conducted without a petition
under section 9(c) being filed within a reasonable period of time not
to exceed thirty days from the commencement of such picketing:
Provided, That when such a petition has been filed the Board shall
forthwith, without regard to the provisions of section 9(c)(1) or the
absence of a showing of a substantial interest on the part of the labor
organization, direct an election in such unit as the Board finds to be
appropriate and shall certify the results thereof: Provided further,
That nothing in this subparagraph (C) shall be construed to prohibit
any picketing or other publicity for the purpose of truthfully advising
the public (including consumers) that an employer does not employ
members of, or have a contract with, a labor organization, unless
an effect of such picketing is to induce any individual employed by any
other person in the course of his employment, not to pick up, deliver
or transport any goods or not to perform any services.
Now, with respect to the allegations contained in the complaint regarding vio-
lations of Section 8(b) (1) (A) of the Act, they must be dismissed on the facts found
herein, on the authority of N.L.R.B. v. Drivers, Chauffeurs and Helpers, Local
Union No. 639 (Curtis Brothers), 362 U.S 274; 2828 U.S. Law Week, 4217. There,
the Court, through Mr. Justice Brennan said (in part) :
We conclude that the Board's interpretation of § 8(b)(1) (A) finds support
neither in the way Congress structured § 8(b) nor in the legislative history of
§ 8(b)(1)(A). Rather it seems clear, and we hold, that Congress in the Taft-
Hartley Act authorized the Board to regulate peaceful "recognitional" picketing
only when it is employed to accomplish objectives specified in § 8(b)(4); and
that § 8 (b) (1) (A) is a grant of power to the Board limited to authority to
proceed against union tactics involving violence, intimidation, and reprisal or
threats thereof--conduct involving more than the general pressures upon persons
employed by the affected employers implicit in economic strikes.
The Board's own interpretation for nearly a decade after the passage of the
Taft-Hartley Act gave § 8 (b) (4) (A) this limited application. See, e.g., Na-
tional Maritime Union, 78 NLRB 971, enforcement granted, 175 F. 2d 686;
Local 74, United Brotherhood of Carpenters (Watson's Specialty Store), 80
NLRB 533, enforcement granted, 181 F. 2d 126, affirmed, 341 U.S. 707; Perry
Norvell Co., 80 NLRB 225; Miami Copper Co., 92 NLRB 322; Medford Build-
ing & Construction Trades Council (Kogap Lumber Industries), 96 NLRB 165;
District 50, United Mine Workers (Tungsten Mining Corp.), 106 NLRB 903.
In Perry Norvell, supra, at 239, the Board declared: "By Section 8(b)(1)(A),
Congress sought to fix the rules of the game, to insure that strikes and other
organizational activities of employees were conducted peaceably by persuasion
and propaganda and not by physical force, or threats of force, or of economic
reprisal. In that Section Congress was aiming at means not at ends." The
Board dismisses these cases as "dubious precedent." 119 NLRB, at 246. We
think they gave a sounder construction to § 8(b)(1)(A) than the Board's con-
struction in the present case.
Turning now to the question of whether or not the Respondents have engaged in
activities in contravention of Section 8(b) (7) of the Act, separately and apart from
any other consideration, I find that the organizational and recognitional picketing as
described herein was in violation and is in violation of the provision of Section
8(b) (7) (C) of the Act.
I have no comment especially to make with respect to changing of the legend on
the placard carried by the pickets. The facts in this case show all too clearly that
the picketing was against Cartage and not against Riss. It seems to me that the
testimony of Desmyter alone shows that the reason for the picketing implied a
continued organizational and recognitional objective against Cartage, and not against
Riss. I think, too, the record in this case shows that once having obtained recog-
nition by Cartage, the Union undertook to impose its own conditions with respect
to organization within the framework of the operations of cartage. It follows that
it must be found, as I do, that the activities of the Respondents and each of them
herein were in contravention of Section 8 (b) (7) of the Act.
Upon the whole record in this case and based upon the findings set forth above, it
is found that the Respondents and each of them engaged in activities in contraven-
tion of the provisions of Section 8(b) (7) (C) of the Act. It seems clear enough in
the light of prior decisions that this section of the Act and its subsection are to be
read apart and in their entirety, and that the Congress intended to prevent an obvious
situation for abuse of peaceful picketing. On the basis of all of the decisions here-
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tofore rendered in connection with this comparably new part of the Act, I think, in
whole part, it is intended to correct situations such as the one evidenced in this case.
What other reason would impel the Union to picket Cartage at the Riss terminal
except to induce the drivers of Cartage in the course of their employment "not to
pick up, deliver or transport any goods or not to perform any services" except for
organizational purposes? Cartage had offered recognition and accepted recogni-
tion, which the Union refused.
The facts here show that the picketing by the Respondents was for organizational
and recognitional purposes only, and was not confined to the "purpose of truthfully
advising the public (including consumers) that an employer does not employ mem-
bers of, or have a contract with, a labor organization. " I so find. N.L R.B. v.
Drivers, Chauffeurs, Helpers Local Union No. 639 (Curtis Brothers), 362 U.S. 274;
Getreu v. Bartenders and Hotel and Restaurant Employees Union, Local 58, etc.
(Fowler Hotel, Inc.), 181 F. Supp. 738 (D.C. N. Ind.); McLeod v. Chefs, Cooks,
Pastry Cooks and Assistants, Local 89, etc. (Stork Restaurant), 181 F. Supp. 742.
Cf., Valley Knitting Mills, Inc., 126 NLRB 441.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Local 705, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act. Louis Peick and Joseph Desmyter , Respondents
herein , are agents of Local 705 within the meaning of Section 8(b) of the Act.
2. On and after September 21, 1959, the Respondents engaged in and are still
engaging in picketing the premises of Cartage Terminal and Management Corpora-
tion , the Charging Party herein, with the effect to induce employees of other em-
ployers in the course of their employment not to pick up, deliver , or transport any
goods or not to perform any services.
3. That such picketing has been conducted and is being conducted without a
petition under Section 9(c) (1) of the Act being filed within 30 days after the com-
mencement of the picketing by the Respondent Union.
4. That by such picketing, the Respondents and each of them has engaged in and
is engaging in unfair labor practices in violation of Section 8(b) (7) of the Act; and
that the aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local Joint Executive Board of Hotel and Restaurant Employees
and Bartenders International Union of Long Beach and
Orange County; Culinary Alliance Local No. 681 [Leonard
Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a co-
partnership] and Peter W. Irwin . Case No. 21-CP-4. Febru-
ary 20, 1961
DECISION AND ORDER
On April 6,1960, Trial Examiner James R. Hemingway issued and
on April 18 amended his Intermediate Report in this proceeding,
finding that the Respondent Unions had not engaged in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General Coun-
sel filed timely exceptions to the Intermediate Report and a brief.
On September 8, 1960, oral argument was held before the Board in
130 NLRB No. 68.