Local Union No. 249

National Labor Relations Board - Board Decisions

Apr 21, 1955

112 N.L.R.B. 311 (N.L.R.B. 1955)

LOCAL UNION NO. 249 311
ganization which is seeking to represent them in a separate unit, the
employees in each such group will be included in the overall group
and their votes pooled with those of voting group (5),21 and the Re-
gional Director conducting the elections is instructed to issue a cer-
tification of representatives to the labor organization selected by a
majority of the employees in the pooled group which the Board, in
such circumstances, finds to be a unit appropriate for the purposes
of collective bargaining.
[The Board dismissed the petition in Case No. 10-RC-2846.]
[Text of Direction of Elections omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above
Decision, Order, and Direction of Elections.
21 If the votes are pooled , they are to be tallied in the following manner : The votes for
the unions seeking the separate unit shall be counted as valid votes , but neither for nor
against the union seeking to represent the more comprehensive unit; all other votes are
to be accorded their face value , whether for representation by the union seeking the com-
prehensive group or for no union.
General Teamsters, Chauffeurs and Helpers, Local Union No. 249,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , A. F. L. and Crump , Incor-
porated . Case No. 6-CC-94. April 01, 1955
DECISION AND ORDER
On May 17, 1954, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
and the Respondent filed exceptions to the Intermediate Report and
the Respondent filed a brief in support of its exceptions.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and Respondent's brief, and the entire
record in the case and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following modi-
fications.
We agree with the Trial Examiner to the extent that he found that
the Respondent, while picketing Kaufmann's premises, including the
site upon which Crump, the secondary employer, was constructing an
addition to Kaufmann's existing department store facilities, engaged
112 NLRB No. 49.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the type of conduct which has been proscribed as unlawful by the
Board in common situs cases.'
When the picketing union by its picketing signs or by its conduct
on the picket line or elsewhere indicates that the dispute extends be-
yond the primary employer, and thereby directly seeks to enlist the
active participation of employees of neutral employers, the picketing
union violates the secondary boycott provisions of the Act.' The
evidence in this case, as has been indicated, establishes beyond any
question that the dispute extended beyond the primary employer.
Thus, as the Trial Examiner found, the Respondent attempted to
prevent delivery of a shipment of steel to the construction job, forbade
further deliveries, and indicated that it desired that the job be shut
down; it changed the manner of picketing in front of the project and
Crump's field office; its pickets told two drivers of Crump suppliers
not to deliver materials to Crump's field office, and on each of these
occasions the drivers left material on the sidewalk; and a picket pre-
vented a carpenter from entering upon the project in order to perform
emergency maintenance work until the Carpenter's union obtained
permission from the Respondent. Accordingly, we find that the Re-
spondent, by engaging in the foregoing conduct while picketing the
portion of Kaufmann's premises where Crump was erecting a build-
ing for Kaufmann, was deliberately attempting to disrupt the opera-
tions of secondary employer Crump; that such disruption was not
merely an unavoidable incident of the otherwise lawful picketing of
Kaufmann's premises, and, therefore, that this conduct was violative
of Section 8 (b) (4) (A).
As the conduct of the Respondent, while otherwise lawfully picket-
ing the site of Crump's operations, violated Section 8 (b) (4) (A),
we are of the opinion, like the Trial Examiner, that such conduct
should be proscribed. However, unlike the Trial Examiner, we do
not believe that the Respondent should be enjoined from peacefully
picketing that portion of Kaufmann's premises where Crump is en-
gaged in construction work so long as it makes clear that its dispute
is with Kaufmann.' Accordingly, we shall issue only the usual cease
and desist order applicable to violations of this kind.
1 However , we do not agree with the Trial Examiner 's interpretation of the case of
Hoosier Petroleum Company , Inc, 106 NLRB 629, to mean that a union picketing under
circumstances similar to those herein involved must not only identify the dispute as one
with the primary employer , but must go further and "advise the secondary employees and
their unions that the picket line is not intended to apply to them " For this reason, we
do not find violative the failure of the Respondent to so notify Crump ' s employees and
their unions
2 See Professional and Business Men's Life Insurance Company, 108 NLRB 363 ; Hoosier
Petroleum Company, Inc, 106 NLRB 629, enfd. 212 F 2d 216 (C. A 7) ; Columbia-Southern
Chemical Corporation, 110 NLRB 206.
3 Contrary to the assertion of our dissenting colleague , we have considered the locale of
the picketing in reaching the conclusion that we do
LOCAL UNION NO. 249
ORDER
313
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, General Team-
sters, Chauffeurs and Helpers, Local Union No. 249, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, A. F. L., Pittsburgh, Pennsylvania, its officers, representa-
tives, agents, successors, and assigns, shall:
1. Cease and desist from inducing or encouraging the employees of
Crump, Incorporated, or any of Crump's subcontractors or suppliers
or of any other employer, to engage in a strike or a concerted refusal
in the course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services for their respective em-
ployers, where an object thereof is to force or require Crump, Incor-
porated, or any other employer or person to cease doing business with
Kaufmann's Department Store.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office and at all its meeting places in Pitts-
burgh, Pennsylvania, copies of the notice attached hereto marked
"Appendix." 4 Copies of such notice, to be furnished by the Regional
Director for the Sixth Region, shall, after being duly signed by an
official representative of the Respondent, be posted by it immediately
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Send signed copies of the aforesaid notice to the headquarters
of all unions representing employees of Kaufmann's Department Store
and the Crump project.
(c) Notify its members and the members of all unions representing
employees of the Kaufmann's Department Store and the Crump proj-
ect-such notification to be made through their respective stewards,
business agents, or officials-that the Respondent withdraws any in-
struction, request, or appeal that any employee engaged on the Crump
project cease or refrain from work on the project in connection with
the Respondent's dispute with Kaufmann's Department Store.
(d) Mail to the Regional Director for the Sixth Region signed
copies of the notice attached hereto marked "Appendix," for posting,
4In the event that this Order is enforced by 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."
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the companies willing, at Kaufmann's Department Store and the
Crump project, in places where notices to employees are customarily
posted.
(e) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order as to what steps it
has taken to comply herewith.
MEMBER MURDOCK, concurring :
I concur in the ultimate finding that the Respondent Union violated
Section 8 (b) (4) (A) of the Act.
I have not signed the main opinion because I am not satisfied that
it clearly indicates the very basic difference between the Trial Ex-
aminer's analysis of the case and conclusion that the picketing was
unlawful, and the majority's finding (or at least mine) that only a
limited number of specific acts beyond the picketing constituted the
violation.-' Although the Trial Examiner too found a violation of
Section 8 (b) (4) (A), his theory of the case and the extent of his
finding of a violation is so different and broader than mine, that I
would adopt only the narrative factual findings in the Intermediate
Report.
As discussed in the Intermediate Report,, the Respondent was en-
gaged in a labor dispute with Kaufmann over the terms of a new con-
tract covering some of Kaufmann's employees at its department store.
In support of its demands, the Respondent peacefully picketed Kauf-
mann's premises, including the portion upon which Crump, as gen-
eral contractor, was building an addition to the existing department
store facilities. The pickets carried truthful picket signs identifying
Kaufmann as the struck employer.
Insofar as the picketing itself was concerned, I find in disagreement
-with the Trial Examiner that the entire premises are to be considered
the premises of Kaufmann the primary employer, despite the presence
of Crump, the secondary employer, on a part thereof, and that the
Respondent was entitled to engage in peaceful picketing of the entire
premises including the Cherry Way entrance, without violating Sec-
tion 8 (b) (4) (A). In this respect I believe the case is controlled by
the Ryan Construction Corporation case.' In the Ryan case, the Board
viewed the property on which a neutral building contractor was erect-
ing an extension to the primary premises as the situs of the labor dis-
pute and therefore as a place where the union could lawfully picket.
It so found even though the gate to the construction project which
was picketed was about 500 feet from the main entrance to the plant
6I note, for example, reference to the "manner of picketing" in the list of items relied
on in the main opinion as the basis for the violation.
a 85 NLRB 417.
LOCAL UNION NO. 249 315
and had been specially cut through a fence to provide ingress to the
building project for the contractor's employees and suppliers.
However, the Respondent's pickets in the instant case on three oc-
casions engaged in specific conduct beyond the mere picketing, which
was clearly violative of Section 8 (b) (4) (A) 7 Thus on two oc-
casions, pickets advised drivers of Crump suppliers not to deliver sup-
plies and the drivers left the materials on the sidewalk. On the third
occasion a carpenter who was a Crump employee was stopped by a
picket and told "you can't work here."
Inasmuch as under settled law the Respondent violated Section 8
(b) (4) (A) not because it picketed in front of the building project on
Kaufmann's premises, but only because it engaged in the specific acts
last noted, the only appropriate remedy is to enjoin the Respondent
from engaging in similar acts in the future. The Trial Examiner,
however, banned in his recommended order (see The Remedy) all
peaceful picketing in front of certain portions of Kaufmann's prem-
ises. Because I disagree with the Trial Examiner that picketing at the
latter places is unlawful, and because only unlawful and not lawful
conduct should be enjoined, I do not adopt the Trial Examiner's "in-
tent and meaning" as to the scope of the cease and desist order.
MEMBER DODGERS, dissenting :
The Trial Examiner found, and I agree, that the Respondent ex-
tended its picketing activities beyond Kaufmann's operating premises
to those of Crump for the purpose of inducing Crump's employees to
cease work. The record establishes that until the United States
district court issued its temporary restraining order on March 5, 1954,
pickets were stationed in Cherry Way. This street, pursuant to a
municipal ordinance, was closed to all public traffic during the con-
struction of the Crump project and not used by Kaufmann employees.
Under the terms of Crump's agreement with Kaufmann, Crump had
'exclusive control of the project site and Cherry Way was embraced
within such exclusive control. On these facts, the General Counsel
contended, and the Trial Examiner found, that picketing in Cherry
Way did not involve a "common situs" situation. As that entrance
way was used solely by Crump employees under Crump's exclusive
control and was not used either by Kaufmann's customers or em-
ployees, I would find merit in the General Counsel's position, which
the Trial Examiner adopted, that all picketing in Cherry Way was
necessarily unlawful because it extended the area of dispute beyond
7 With respect to another incident on December 14, 1930, when Pagan "advised Crump
Superintendent Andrew Cupac and the foremen or supeuntendents" of other subcontractors
that he objected to a load of steel for the project being unloaded, it does not appear that
this involved any inducement of "employees," as the Trial Examiner noted.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the operating premises of the primary employer to those of Crump,
who was a neutral in the dispute.
The above facts, as is evident from even a cursory analysis, are
clearly distinguishable from those present in "common situs" situ-
ations. Nevertheless, my colleagues, erroneously in my opinion, adopt
a narrow view apparently predicated solely on incidents that occurred
during the course of the picketing, without considering the locale of
the picketing and its consequent illegality for that reason. It is
also unfortunate that the majority does not make this fact sufficiently
clear, and instead tends to create the impression that their disagree-
ment with the Trial Examiner goes principally to the scope of the
recommended order. Actually, their disposition is much more far-
reaching in its consequences and should not be glossed over lightly.
I regard it as reasonably clear that a "common situs" situation is
predicated on a premise of common use, not physical proximity. In
other words, a "common situs" exists where two individuals use the
same property. In the present case, at the time the picketing occurred,
the property on which Kaufmann conducted its normal operations and
the property on which Crump conducted its construction operations
were entirely separate. There was not the slightest question that
Kaufmann's premises could be picketed without picketing Crump.
By failing to recognize this distinction, the majority errs with respect
to a significant phase of this case-an error which necessarily carries
over into its failure to adopt the Trial Examiner's recommended
order-and carries with it the direct implication that picketing is
permissible at a project merely because it is being constructed on land
to which the primary employer has legal title. I disagree most em-
phatically with this implication of an incorrect principle. Indeed,
even the Respondent at the hearing in this case was unwilling to take
this position (see second paragraph under "Contentions and con-
clusions" of the Intermediate Report).
Consistent with the views I have expressed, I would adopt the
Trial Examiner's recommended order. That order, based in part on
the direction in the temporary restraining order issued by the United
States district court on March 5, 1954, takes into consideration ac-
curately and realistically the full extent of the Respondent's viola-
tion of Section 8 (b) (4) (A) by delineating the precise area where
picketing may not take place. It is my considered judgment that
only by such an order can the unfair labor practices committed in this
case be adequately remedied.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
LOCAL UNION NO. 249 317
APPENDIX
NOTICE TO ALL MEMBERS OF GENERAL TEAMSTERS, CHAUFFEURS AND
HELPERS, LOCAL UNION No. 249, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREI-IOUSEMEN AND HELPERS OF AMER-
ICA, A. F. L., AND TO ALL EMPLOYEES OF CRUMP, INCORPORATED, AND
KAUFMANN'S DEPARTMENT STORE
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, as amended, we hereby notify you that :
WE WILL NOT induce or encourage any employees of Crump,
Incorporated or any of its subcontractors, or any other employer,
to engage in a strike or concerted refusal in the course of their
employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities,
or to perform services for their respective employers, where an
object thereof is to force or require Crump, or any other employer
or person, to cease doing business with Kaufmann's Department
Store.
WE WILL withdraw any instruction, request, or appeal that any
employee on the project cease or otherwise refrain from work
on the project in connection with our dispute with Kaufmann's
Department Store.
GENERAL TEAMSTERS, CHAUFFEURS AND HELPERS,
LOCAL UNION No. 249, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, A. F. L.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive 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
Upon a charge filed by Crump, Incorporated, the General Counsel for the National
Labor Relations Board, by the Regional Director for the Sixth Region (Pittsburgh,
Pennsylvania), issued a complaint on March 3, 1954, against General Teamsters,
Chauffeurs and Helpers, Local Union No. 249, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, A. F. L, a labor organiza-
tion herein called the Teamsters, alleging that Respondent Teamsters has engaged in
conduct violating Section 8 (b) (4) (A) and Section 2 (6) and (7) of the Labor
Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the
complaint and charges were served upon the Respondent ; and the Respondent, in
turn, filed an answer denying the commission of the unfair labor practices alleged.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice , a hearing was held in Pittsburgh , Pennsylvania , on March 18
and 19, 1954, before the duly designated Trial Examiner . All parties were repre-
sented at the hearing and were afforded full opportunity to be heard , to examine
and cross -examine witnesses , and to introduce evidence bearing on the issues. The
parties presented oral argument at the close of the hearing and they were also granted
permission to file briefs and proposed findings of fact and conclusions of law.
Motions by the Union to dismiss the complaint are disposed of in accordance with
the following findings of fact and conclusions of law.
Upon the entire record in the case, and upon observation of the demeanor of
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE PRIMARY AND ALLEGEDLY SECONDARY EMPLOYERS
May Department Stores Company , Kaufmann Division (herein called Kaufmann),
is a retail establishment in Pittsburgh , Pennsylvania ; it is owned by May Department
Stores Company , a New York corporation which is engaged in the operation of retail
department stores, including Kaufmann, in several States. Kaufmann's interstate
purchases and sales during the past year exceeded $25,000,000 and $2,500,000,
respectively.
Crump, Incorporated , is a Pennsylvania corporation engaged in general building
construction with principal offices in Pittsburgh , Pennsylvania . The subject matter of
this proceeding involves a building project which Crump is constructing for Kauf-
mann at a cost exceeding $ 1,000,000. Crump 's interstate purchase of materials for
the project exceeds $500,000.
I find that Kaufmann and Crump are engaged in commerce within the meaning
of the Act.
H. THE UNFAIR LABOR PRACTICES
On or about February 14, 1953, Crump and Kauffmann entered into a contract
for the construction by Crump of an addition to Kaufmann 's store. This construction
contract contains a penalty clause to be operative should the project not be completed
by a fixed date . Kaufmann 's present store facilities consist of a main store and an
annex, separated by Cherry Way. The annex does not contain retail sales depart-
ments, but it is an integrated operation with the main store. The addition being con-
structed by Crump will be physically attached to both the annex and the main store
building, and altogether these facilities occupy the site bounded by Diamond Street,
Script Way, Fifth Avenue, and Smithfield Street.
Cherry Way is, or was , a public thoroughfare extending from Diamond Street to
Fifth Avenue . It is 20 feet wide, measured from Kaufmann's building line to the
building line on the other side. By city of Pittsburgh ordinance, this thoroughfare
was vacated and closed to all public traffic during the construction of the Crump
project; upon completion of the project , Cherry Way will be reopened as a public
way, with overhead bridges connecting the main store building to both the annex
and the addition.
Cherry Way leads directly into the project and its sole present use is as an entrance
to the project ; it is thus used by Crump 's construction employees-their only entrance
to the project-and as a delivery way for materials for the project . Cherry Way
is not used , during the construction period, by Kaufmann employees in any manner;
moreover , under the terms of Crump 's agreement with Kaufmann , Crump has exclu-
sive control of the project site and Cherry Way is embraced within such exclusive
control by Crump.
Crump has a field office across Cherry Way from Kaufmann 's main store. This
office is between Cherry Way and the annex. The entrance to this field office is on
Diamond Street and is 8 feet from the nearest (that is, the south ) curb line at Cherry
Way. There is a store entrance on Diamond Street at the Cherry Way intersection;
this entrance is a customer , as well as a principal employee, entrance to the store.
The main store has a display window on Cherry Way, at the intersection of Diamond
Street, and there is a narrow sidewalk on Cherry Way along this display window.
Diamond Street is a principal pedestrian thoroughfare.
Approximately 55 feet from the southerly side of Cherry Way, and about 50
feet south of Crump's field office , is an entrance to the Kaufmann annex. The
street south of Cherry Way is Script Way ; Script Way is an alleyway, 20 feet wide,
in which vehicular traffic moves only in an easterly direction from Diamond Street
to Fifth Avenue ; Script Way separates both the Kaufmann annex and the Crump
project from the Frick Building on the other side. Resort Way intersects Script
Way; Resort Way leads to Kaufmann 's loading dock . The entire Crump project
is barricaded from the eastern side of Resort Way at Script Way to Fifth Avenue
LOCAL UNION NO. 249 319
and then down Fifth Avenue to Kaufmann's main building. Cherry Way is also
barricaded a short distance behind the building line on Diamond Street.
A. The Kaufmann dispute and accompanying activities
On November 27, 1953, Respondent Teamsters and approximately 10 other labor
organizations representing their respective bargaining units of Kaufmann's Depart-
ment Store employees went on strike over contract renewal negotiations. (The
Teamsters' unit consisted of approximately 225 employees.) Respondent Team-
sters and four of these other striking unions i thereupon engaged in picketing
in support of their common dispute with Kaufmann. The strike is still in effect,
and the picketing continues. Approximately 2,000 Kaufmann employees have
been on strike since November 28, 1953. Sometime after November 28 and before
December 14, 1953, the electrical workers on the Crump project walked off the job.
On December 14, the remaining construction workers walked off, causing the project
to shut down.
The General Counsel contends that the Teamsters has unlawfully picketed the
Crump project in connection with its aforementioned picketing activities, and such
alleged conduct is the subject of the present proceeding. After charges in this
case were filed, and upon a hearing before the United States District Court for the
Western District of Pennsylvania (Civil No. 12009), District Judge Willson issued
an order on March 5, 1954, granting a temporary injunction against Respondent
Teamsters on petition of the General Counsel of the Board. Another proceeding
arising out of the Kaufmann labor dispute and the accompanying picketing activity
was heard in January 1954 before Judge Weiss in the Court of Common Pleas of
Allegheny County, Pennsylvania; this was an action by Crump to restrain the
Teamsters and the four other aforementioned labor organizations from allegedly
picketing the Crump project (No. 51, April term, 1954). And on December 16,
1953, Kaufmann filed a complaint in equity against Respondent Teamsters and the
four other named unions in the Court of Common Pleas of Allegheny County,
Pennsylvania, to restrain mass picketing at Kaufmann store entrances, Kautmann
and the defendent unions settled this matter and the court issued an order, by
consent, on December 17, 1953 (No. 3582, January term, 1954 B).
Thomas L. Fagan is president of Respondent Teamsters, a local of approxi-
mately 10,000 members. Fagan testified that Respondent and the other afore-
mentioned unions actively picketed from the intersection at Script and Resort
Ways to Diamond and Script Way and then along the entire stretch of Diamond
to Smithfield including Cherry Way. Fagan denied that there also was such picket-
ing from Script and Resort Ways to Fifth Avenue and then along Fifth Avenue to
where the project joins the main Kaufmann building at what would be the inter-
section of Cherry Way and Fifth Avenue. However, at the hearing before Common
Pleas Judge Weiss on January 7, 1954, Fagan testified that picketing from the very
beginning covered "the entire properties of Kaufmann's, which are bordered by
Diamond Street, Smithfield Street, Fifth Avenue, and Script Way." Fagan further
testified in common pleas court that he originally issued orders for picketing along
this entire described area and that he had not had occasion to change these
instructions.
Fagan testified that the purpose of picketing, including that at Cherry Way, was
"to peacefully persuade any persons from patronizing Kaufmann's in any way
while the dispute was going on, until such time as we could settle the strike and
arrive at a collective bargaining agreement between Kaufmann's and [Respondent
Teamsters]." Fagan denied that the picketing was ever directed at the Crump
project. In responding to a question at the common pleas hearing as to whether
he had ever picketed the construction site, Fagan stated: "Yes, not the construction
site particularly, because without due regard to whether or not it constitutes con-
struction work or Kaufmann properties, I have at all times picketed the properties
of Kaufmann's actively myself." Again, at the common pleas and the district
court hearings, Fagan testified that "Our objective in picketing is to bring about full
economic pressure against Kaufmann's Department Store and to persuade in a
peaceful manner, and to refrain any person or persons ["customers and people in
this area"] from doing any business with Kaufmann's on their premises." Whert
asked at the district court hearing whether he intended maintaining pickets to,
i Office Employees International, Union Local No 33, AFL; Carpet and Linoleum
Workers, Local Union No. 1759, AFL; Upholsterers International Union of North America,.
Local Union No. 10 AFL; Building Service International Union Local No. 29, AFL.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affect the entrances to Script Way and to Cherry Way, Fagan similarly replied
that "we intend to maintain picket lines along Diamond Street, from Smithfield to
Script Way, for the purpose of peacefully persuading anyone from refraining from
doing business with Kaufmann's." And when further asked at the district court
hearing whether it was his purpose "by maintaining that picket line [which picket
line is hereinafter described] to dissuade the employees of Crump from entering the
Cherry Way entrance," Fagan replied "if that is their decision, yes." Fagan also
testified in this connection that it would be a "blight" on the record of any union
member who went through and thus failed to respect a picket line such as existed
at Cherry Way.
Fagan testified that all picketing, including the picketing in question in this
case, was carried on "as a joint enterprise" by Respondent Teamsters and other
interested unions in support of their common dispute with Kaufmann's. Members
of the Respondent Teamsters engaged in such picketing activity and they bore signs
stating "Drivers on strike, Kaufmann's, Teamsters General Union 249, affiliated
with the A. F. L." Some picket signs contained the name of other striking unions.
No sign contained Crump's name.
B. December 14, 1953
It is recalled that Script Way is a one-way drive from Diamond Street to Fifth
Avenue and that the entrance to the Kaufmann loading dock is through Resort Way.
Beyond the intersection of Resort Way and Script Way there is a break in the
project barricade along Script Way where steel for the project is delivered- On
the morning of December 14, 1953, a truck engaged by one of Crump's supplier
subcontractors entered Script Way with a load of steel for the project and proceeded
to this "break" where it was to be unloaded by the employees of another of Crump's
subcontractors. Fagan and Teamster Vice-President Melvin Humphrey came on
the scene; Fagan identified himself and advised Crump Superintendent Andrew
Cupac and the foremen or superintendents of the aforementioned subcontractors
that he objected to the unloading. There was some discussion following which
Fagan said he would permit this single load to be delivered but "that will be a11,"
and Fagan also told the subcontractor's superintendent that the latter should cease
working on the project when the delivery was completed. Humphrey told Cupac
on this same occasion that Cupac "ought to know better." Cupac then told Fagan
"if you want us to quit just tell me you want us to quit and that will be the end of
it." Fagan replied, "We do want you to stop. We want you to honor our picket,"
to which Cupac stated, "All right. That is what we will do. We will do it."
That same morning, and in connection with the steel delivery incident, Fagan
directed Humphrey to place and maintain a picket in Cherry Way and at the corner
of Script Way and Diamond Street. Humphrey accordingly stationed pickets in
both locations as Fagan had directed, and these pickets bore placards with the legend
described above. Working on the project in Cherry Way directly behind the picket,
were compressor machine operators. One of these operators, upon seeing this picket
in Cherry Way that same morning, advised Superintendent Cupac that "there is a
picket there, we can't go on," and Cupac replied, "It is up to you, make up your
mind ." The operator then pulled his throttle and walked off the job. The other
construction employees soon learned what happened and all 105 of them quit work
that same morning . All work ceased when the employees thus walked off the job,
and construction did not resume until employees returned to work upon issuance
by the district court of its temporary restraining order on March 5, 1954.
Until the March 5 restraining order was issued, pickets were stationed in Cherry
Way, as related, and a picket has also been stationed at the Crump field office every
Thursday since December 14. On at least two occasions, these pickets at the office
entrance advised drivers of Crump suppliers not to deliver supplies to the field office,
and on each occasion the drivers left the materials on the sidewalk instead of mak-
ing delivery inside the office. Shortly after the project had been closed down Super-
intendent Cupac asked one of the carpenters who had worked on the project to do
some emergency maintenance work on the project. This carpenter, Sam Allegro,
told Cupac that he, Allegro, would first have to check with the Carpenters' union's
business agent. Allegro obtained such permission, and when he reported for work
at the Crump field office he was stopped by a Respondent's picket on duty there.
This picket told Allegro "you can't work here. Let's get the thing ironed out " The
picket finally withdrew his objections to Allegro working on the project when the
Carpenters' business agent made arrangements with Respondent Teamsters for
Allegro to perform the work in question.
LOCAL UNION NO. 249 321
C. Contentions and conclusions
Section 8 ( b) (4) (A) is "one of the Act 's `secondary boycott sections."'
N. L. R. B . v. Denver Bldg . & Construction Trades Council, et al., 341 U . S. 675,
686. This section provides in relevant part that
(b) It shall be an unfair labor practice for a labor organization or its agents-
(4) to engage in, or to induce or encourage the employees of any em-
ployer to engage in, a strike or a concerted refusal in the course of their
employment to use, . transport , or otherwise handle or work on any
goods, articles, materials , or commodities or to perform any services, where
an object thereof is: (A) forcing or requiring . . . any employer or other
person to cease using , . . . handling, transporting , or otherwise dealing in
the products of any other producer , processor , or manufacturer, or to
cease doing busines with any other person.
The General Counsel claims that Respondent Teamsters has induced or encouraged
the employees of Crump and his subcontractors to cease work on the project for
the purpose of forcing Crump to cease doing business with Kaufmann . Respondent,
on the other hand, claims that its picketing activities were solely in support of a
primary dispute with Kaufmann and that the picketing activity at Cherry Way, for
example, falls within the category of primary strike action because it occurred at
the situs of the, primary dispute . The Respondent does not claim that it has a right
to picket a project merely because a general contractor is constructing the project
for and on the property of the primary employer.
The question presented here, like that in N. L. R. B. v. Service Trade Chauffeurs,
Salesmen & Helpers Local 145, etc., 191 F. 2d 65, 67 (C. A. 2), "[ involves] the
rights of neutrals in a lawful economic war between an employer [Kaufmann] and
a union [Respondent Teamsters ]. The Taft-Hartley Act does not completely shelter
neutrals [Crump ] in this case, so-called `secondary ' employers. If it did, strikes
would often be hopelessly crippled. Instead the Act recognizes and undertakes to
reconcile the competing claims of unions [Respondent Teamsters ] to strike and of
bystanders [ Crump] to be free of harm from so-called `secondary boycotts.'"
Calling attention , among other things, to the magnitude of the Kaufmann Depart-
ment Store operations , to the fact that Diamond Street is a main pedestrian thorough-
fare for patrons and employees of the department store , that Kaufmann 's main store
has a principal entrance near the intersection of Cherry Way and Diamond and that
the annex has an entrance approximately 50 feet south of this intersection , and that
a display window fronts on Cherry Way off Diamond Street, Respondent claims that
it is entirely reasonable and within the proper scope of its primary strike action against
Kaufmann to picket the entire length of Diamond Street from Script Way to Smith-
field Street , including Cherry Way. In support of this contention Respondent relies
on various cases holding that injury to a neutral employer does not itself constitute
or is not proof of unlawful secondary action where such injury is incidental to a
traditionally lawful strike against a primary employer.
Respondent further asserts that it had no dispute with Crump and it refers , in this
connection , to the fact that the picket signs contained Kaufmann's name and that
no sign contained Crump's name . Respondent also contends that its right to strike
and to take supporting picketing action may not be measured in inches or feet, which
it claims would be the effect of removing Cherry Way, for example , from the scope of
permissible primary action.
It may be assumed , where the situs of a primary employer is far removed from the
premises of other employers , that picketing activity 10 or 15 feet from the primary
employer's entrance is legitimate primary conduct . But the proximity of the primary
employer's situs to the premises of another employer is a circumstance which, to-
gether with other circumstances , must be considered in balancing the conflicting rights
of a union and a secondary employer. The Board , in Moore Dry Dock Company,
92 NLRB 547, 549, evolved certain criteria for determining whether, in a common
situs situation , picketing is to be deemed legitimate primary action or illegal secondary
action. To be permissible primary action under these criteria , picketing conduct must
meet all of the following conditions : ( a) The picketing is strictly limited to times
when the situs of dispute is located on the secondary employer 's premises ; ( b) at the
time of the picketing the primary employer is engaged in its normal business at the
situs; (c) the picketing is limited to places reasonably close to the location of the
situs; and ( d) the picketing discloses clearly that the dispute is with the primary
employer.
If the picketing is not thus restricted the picketing is held secondary and unlawful.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In N. L R. B. v. Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc.,
191 F. 2d 65, 67 (C. A. 2), the court approved the Board's criteria for determining
the validity of common situs picketing as "a sound interpretation of the Act." The
court pointed out that if the picketing met all of the enumerated conditions any
adverse effect of the picketing upon a neutral employer may properly be regarded
as "incidental" to a traditionally lawful primary strike conducted at the place where
the primary employer does business (191 F. 2d 65, 67, 68); but that where the
picketing failed to meet these conditions, it may reasonably be deemed to be unlawful
secondary action designed to conscript the aid of the neutral employer's employees,
in violation of the Act. See also, N L. R. B. v. Chauffeurs, Teamsters, Warehouse-
men & Helpers Local Union No. 135, IBTCWHA, AFL, 212 F. 2d 216, where the
Seventh Circuit Court of Appeals approved and applied the aforementioned criteria.
The General Counsel claims that picketing in Cherry Way does not even involve
a common situs situation, because that entranceway was used solely by Crump
workers under his exclusive control and it was not used either by Kaufmann's
patrons or employees. Therefore, contends the General Counsel, all picketing in
Cherry Way was necessarily unlawful because it extended the area of dispute beyond
Kaufmann's operating premises and to the operating premises of Crump, a neutral
to Respondent's dispute with Kaufmann. The General Counsel claims, however,
that Respondent's conduct was in any event unlawful, even if Cherry Way be viewed
as a common situs situation.
The events of December 14 with respect to the steel delivery incident including
Fagan's instructions that Humphrey place and maintain pickets at Cherry Way
and at other stated locations clearly establish that by such picketing Respondent
Teamsters sought to induce and otherwise encourage the employees of Crump and
his subcontractors to quit woik on the Crump project in order to implement Re-
spondent's strike action against Kaufmann. Indeed, such inducement of the con-
struction employees at Cherry Way and at Crump's field office appears to be Re-
spondent's sole reason for placing a picket at those locations. That Respondent has
no dispute with Crump is not decisive and does not excuse secondary conduct which
is otherwise unlawful; 2 and while Fagan's and Humphrey's aforementioned remarks
are presumably not unlawful because they were made to supervisors rather than
to statutory "employees," the statements are competent to "shed light on the Re-
spondent's intentions in picketing and indicate that the picketing was directed beyond
[the primary employer]." Professional and Business Men's Life Ins. Company, 108
NLRB 363.
The record fully establishes, in my opinion, that Respondent Teamsters extended
its picketing activities beyond Kaufmann's operating premises and onto Crump's
operating premises for the purpose of inducing Crump's employees to cease work.
This extension of the Kaufmann dispute may scarcely be called primary action in
the circumstances of this case. (See Printing Specialties and Paper Converters
Union v. Le Baron, 171 F. 2d 331, 333-335 (C. A. 9), cert. denied 336 U. S. 949).
Moreover, even viewing Cherry Way as a common situs-which I find it is
not-I am also satisfied, as the General Counsel urges, that Respondent Teamsters
has nevertheless engaged in secondary conduct by the manner of its picketing there.
The Board has recently emphasized that portion of its aforementioned criteria that,
where a primary and secondary employer have premises in common, a labor organ-
ization striking and picketing the primary employer must "clearly disclose that the
dispute is with the primary employer" (Hoosier Petroleum Company, Inc., 106
NLRB 629, enfd. 212 F. 2d 216 (C. A. 7), Professional and Business Men's Life Ins.
Company, 108 NLRB 363). Cases, like the present one, demonstrate that, in some
situations, the absence of a secondary's employer name on a picket placard is of
little consequence where the striking union's other conduct belies its claim that no
appeal to the secondary employer is being made. (See Richfield Oil Corp., 95 NLRB
1191, 1193; cf. Professional and Business Men's Life Ins. Company, 108 NLRB 363).
I would take the rule of Hoosier Petroleum to mean that where a union, in a common
situs situation, maintains a picket line at the premises of a secondary employer, such
union must not only identify the primary employer but also take measures to advise
the secondary employees and their own unions that the picket line is not intended
to apply to them. At least, such union should not take other action which renders
the placard legends meaningless. Respondent Teamsters obviously could not take
such disavowing measures respecting its picket activity in Cherry Way and at the
2 N. L R B. v 'Washington-Oregon Shingle Weavers' District Council and Everett Local
2580 Shingle Weavers' Union, AFL, 211 F. 2d 946 (C. A 9) ; Chauffeurs, Teamsters, Ware-
housemen and Helpers Local Union No 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL, 101 NLRB 1284.
BEN CORSON MANUFACTURING CO. 323
Crump field office, for, as already found, the sole immediate purpose of picketing
at those locations was to bring about a cessation of work on the Crump project by
appealing to the construction employees.
Upon all the foregoing, I conclude that Respondent Teamsters has induced and
encouraged the employees of Crump and Crump's subcontractors to quit work on
the project for the purpose of forcing Crump to cease doing business with his
subcontractors and with Kaufmann. Respondent Teamsters has thereby violated
Section 8 (b) (4) (A) and Section 2 (6) and (7) of the Act. N. L. R. B. v Denver
Building & Construction Trades Council, 341 U. S. 675; United Brick and Clay
Workers v. Deena Artware, 198 F. 2d 638, 642, cert. denied 344 U. S. 897; and the
other cases cited above.
In its answer filed in this matter, Respondent moved to dismiss the complaint on
the basis of the aforementioned State court proceeding before Judge Samuel A.
Weiss. That action was instituted by Crump under Pennsylvania secondary boy-
cott law to restrain Respondent Teamsters and other striking unions from picketing
the Crump project at Cherry Way. Judge Weiss issued an opinion in the matter
on January 28, 1954, dismissing the action on the ground that the specific matter
at issue was within the purview of the Federal Act and therefore beyond the authority
of the State. In passing, however, the court also declared that the alleged secondary
action complained of in the State court action was protected primary, rather than
unlawful secondary, conduct under decisions of the National Labor Relations Board.
Respondent asserts that the State court's interpretation of the Teamsters' conduct as
primary rather than secondary conduct is res adjudicata here. All parties in the
present action were not parties to the State court action, and the doctrine of res
adjudicata is therefore inapplicable; but even if such deficiency were not present, the
court's interpretation is clearly diction in view of the court's own dismissal of the
action on jurisdictional grounds. Moreover, the court's interpretation would, in any
event, not be binding here in view of Garner v. Teamsters, 346 U. S. 485. See
Professional and Business Men's Life Ins. Company, 108 NLRB 363
111. THE REMEDY
I shall recommend that Respondent cease and desist from violating Section 8 (b)
(4) (A) of the Act, and that Respondent take certain affirmative action which I find
necessary to effectuate the policies of the Act. It is the intent and meaning of this
recommended order, as District Judge Willson directed with respect to his order
granting temporary injunction of March 5, 1954, that, among other things, "there
be no picketing south of the north line of Cherry Way, except that respondent may
place a picket at the south entrance to Resort Way and on Diamond Street at any
point ten feet south of the Crump, Inc office, and may use Script Way as a passage-
way to and from Diamond Street in order that the persons picketing shall have a
congregating area on Script Way. There shall be no interference in any way with
delivery of material or access of employees to the construction site where Crump,
Inc. is engaged."
[Recommendations omitted from publication.]
Ben Corson Manufacturing Co., Belmont Aluminum Extrusion
Co., Parkside Distributing Co., Corben Manufacturing Co. and
F. C. and Allied Workers Union, Local 37, Affiliated with Up-
holsterers' International Union of North America, AFL and
Shop Committee , Party to the contract . Case No. 4-CA-1066.
April 01, 1955
DECISION AND ORDER
On December 28, 1954, Trial Examiner A. Norman Somers issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
112 NLRB No. 46.
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