Milk Wagon Drivers Union, Local 753

National Labor Relations Board - Board Decisions

Apr 6, 1967

163 N.L.R.B. 902 (N.L.R.B. 1967)

902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are no Board certifications, contracts, or
jurisdictional awards compelling the assignment of
the work in question. Further, there is no showing
that the disputed work requires skills specifically
possessed by the Asbestos Workers. To the
contrary, the only skills seemingly involved in the
performance of this work are those incidental to
lifting 100-pound bags of Gilsonite, cutting open the
top with a knife, dumping the contents into a ditch,
and packing the material around the pipes by means
of shovels and 30- to 40-pound tampers. These skills
are generally possessed by laborers. It is apparent
that the work in question can be performed readily
and satisfactorily as an incident to work traditionally
done by laborers. The fact that, in the overwhelming
number of instances cited, construction companies
throughout the State of Texas employ laborers to
perform work identical to that here in dispute gives
rise to an inference that such employment practices
are consistent with economy and efficiency of
operation. All these circumstances support the
continued assignment of the disputed work to the
laborers employed by the Company. Particularly for
the reasons just cited, but only after assessing all
other relevant factors, it is our considered judgment
that the laborers employed by the Company have a
superior claim to the disputed work. On the basis of
the entire record, therefore, we shall determine the
existing jurisdictional controversy by awarding to
the laborers employed by the Company, rather than
to individuals represented by the Asbestos Workers,
the work of pouring and packing Gilsonite around
pipes installed underground. The present
determination is limited to the particular
controversy which gave rise to this proceeding.
DETERMINATION OF DISPUTE
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, and upon the basis of the
foregoing findings of fact and the entire record in
this case, the National Labor Relations Board makes
the following Determination of Dispute:
1. Laborers employed by Sam P. Wallace
Company, Inc., in pouring and packing Gilsonite
around pipes installed underground at Saint
Edwards University and High School, Austin, Texas,
are entitled to perform the work in dispute.
2. Neither Local 87, International Association of
Heat and Frost Insulators and Asbestos Workers,
AFL-CIO, nor its members, are entitled to force or
require Sam P. Wallace Company, Inc., to assign the
disputed work to individuals represented by the
aforesaid Union by means proscribed by Section
8(b)(4)(D) of the Act.
3. Within 10 days from the date of this Decision
and Determination of Dispute, Local 87,
International Association of Heat and Frost
Insulators and Asbestos Workers, AFL-CIO, shall
notify the Regional Director for Region 23, in
writing, whether or not it will refrain from forcing or
requiring , by means proscribed by Section 8(b)(4)(D)
of the Act, the assignment of the work in dispute in a
manner inconsistent with the above determination.
Milk Wagon Drivers Union , Local 753,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America , and Dairy Employees Union,
Local 754 , I. B. of T . and John Pralle. Case
13-CC-540.
April 6,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 22, 1966, Trial Examiner James V.
Constantine issued his Decision in the above-
entitled proceeding, finding that the Respondents
had engaged and were engaging in certain unfair
labor practices and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions to the Decision and a supporting brief,
and the Respondents filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, with the following modifications.
The General Counsel filed exceptions to the Trial
Examiner's Remedy, Conclusions of Law, and
Recommended Order, insofar as these are limited to
proscribing secondary activity against John Pralle
alone. As Respondents' unlawful action was directed
at both Oak Ridge Dairy and its distributor John
Pralle, we find merit in the General Counsel's
contention that Respondents should be required to
cease engaging in such conduct directed at Oak
Ridge as well as -Pralle. Accordingly, we shall
modify the Recommended Order and notice to
conform thereto.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' No exceptions were taken to the Trial Examiner's findings,
which we adopt pro forma.
163 NLRB No. 116
MILK WAGON DRIVERS UNION, LOCAL 753
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondents, Milk Wagon
Drivers Union, Local 753, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and Dairy Employees Union,
Local 754, I. B. of T., their officers, agents, and
representatives, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
modified:
1. Substitute the following as paragraphs lettered
1(a) and (b) in place of the present paragraphs 1(a)
and (b):
"(a) Inducing or encouraging any individuals
employed at Rainbow Bake Company, Swift &
Company, Road Chief Service Station, Jim's Sinclair
Station, North Side Grocery, Cotton Goods Shop,
Stone Meat Packing, Inc., or by any other person, to
engage in a refusal in the course of their employment
to perform any services, where an object thereof is to
force or require any person to cease doing business
with John Pralle or Oak Ridge Dairy."
"(b) Threatening, coercing, or restraining Road
Chief Service Station, Jim's Sinclair Station, North
Side Grocery, Cotton Goods Shop, Stone Meat
Packing, Inc., or any other person, where an object
thereof is to force or require any person to cease
doing business with John Pralle or Oak Ridge
Dairy."
2. Substitute the following for the two indented
paragraphs of each notice:
WE WILL NOT induce or encourage any
individuals employed by Rainbow Bake
Company, Swift & Company, Road Chief
Service Station, Jim's Sinclair Station, North
Side Grocery, Cotton Goods Shop, Stone Meat
Packing, Inc., or by any other person, to engage
in a refusal in the course of their employment to
perform any services, where an object thereof is
to force or require any person to cease doing
business with John Pralle or Oak Ridge Dairy.
WE WILL NOT threaten, coerce, or restrain
Road Chief Service Station, Jim's Sinclair
Station, North Side Grocery, Cotton Goods
Shop, Stone Meat Packing, Inc., or any other
person, where an object thereof is to force or
require any person to cease doing business with
John Pralle or Oak Ridge Dairy.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: These are
three unfair labor practices cases initiated under Section
10(b) of the National Labor Relations Act, herein called
the Act. In Case 13-CC-540, a charge was filed on
November 5, 1965, by John Pralle against Locals 753 and
754 of the Teamsters. In Cases 13-CB-1942 and
13-CC-543, separate charges were filed on December 17,
1965, by Carolyn M. Maynard: that in Case 13-CB-1942 is
903
against Local 753 of the Teamsters and its agent
A. Christiano, while that in Case 13-CC-543 is against
Locals 753 and 754 of the Teamsters. Thereafter the three
charges were consolidated and a consolidated complaint
thereon was issued on February 1, 1966. In essence the
complaint as amended alleges that Respondents Locals
753 and 754 violated Section 8(b)(4)(i) and (ii)(B), and that
Respondents Local 753 and Christiano violated Section
8(b)(1)(A), of the Act. Respondents have severally
answered admitting some facts but putting in issue the
commission of any unfair labor practices.
Pursuant to due notice the consolidated case came on to
be heard and was tried before me on June 7, 8, and 9 and
August 22, 23, and 24, 1966, at Chicago, Illinois. All parties
appeared or were represented at the hearing and were
afforded full opportunity to adduce evidence, examine and
cross-examine witnesses, submit briefs, and offer oral
arugment. Briefs have been received from Respondent
Local 753 and the General Counsel. The General
Counsel's motion to correct the transcript is granted in the
absence of opposition thereto.
At the opening of the hearing the General Counsel's
motion to amend the complaint was denied on the ground
that it did not relate to newly discovered evidence and no
reason was shown why the complaint was not amended as
a matter of right prior to the trial. See Section 102.17 of the
Board's Rules and Regulations, Series 8, as amended,
which permits amendments to be made before the hearing.
A motion of the General Counsel to withdraw (a) the
charges in Cases 13-CB-1942 and 13-CC-543, both filed
by Carolyn Maynard, and (b) paragraphs in the complaint
numbered I(b), I(c), 11(d) as to La Popular Grocery only
and other references to La Popular in the complaint, XI,
XII(b), XIII(d), and XIV to the extent that it refers to XI,
was granted. Motions by Respondent Local 753 to strike
certain parts of the complaint, as well as the complaint in
its entirety, were denied. Motions by Respondents Locals
753 and 754 to amend their respective answers were
granted. A motion by the General Counsel to strike parts
of the answers as a sham was denied.
In its brief Respondent Local 753 requests that I
reconsider many of my rulings at the trial adverse to it.
This request is hereby denied.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
John Pralle is a self-employed milk distributor who
purchases milk from Oak Ridge Dairy, which is located at
Mishawaka, Indiana. Pralle's business is situated at Crete,
Illinois, where he also garages trucks and trailers used in
distributing milk to retail outlets. During the year 1965, he
purchased milk valued at approximately $250,000 from
points outside the State of Illinois. From January 1 to
June 7, 1966, Pralle's out-of-State purchases of milk were
valued at approximately $175,000. I find that Pralle is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that it will effectuate the policies of
the Act to assert jurisdiction over this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Milk Wagon Drivers Union, Local 753, and Dairy
Employees Union, Local 754, both affiliated with
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor
organizations within the meaning of Section 2(6) and (7) of
the Act.
III. THE UNFAIR LABOR PRACTICES
At the opening of the hearing the General Counsel
withdrew the charges in Cases 13-CB-1942 and
13-CC-543 and that part of the complaint based thereon.
Accordingly, the only issues before me are those
presented by Case 13-CC-540. Thus the remaining issues
are:
(a) Whether Local 753 or Local 754, or both, induced
and encouraged individuals employed by employers
engaged in commerce to engage in a refusal to work,
where an object thereof is to force or require such
employers and other persons to cease doing business with
John Pralle.
(b) Whether Local 753 or 754, or both, threatened,
restrained, and coerced Road Chief Service Station and
other persons, where an object thereof is to force or
require Road Chief and other persons to cease doing
business with Pralle.
A. General Counsel's Evidence
At or about 9 a.m. on the morning of July 8, 1965, Pralle
was at the premises of Stone Meat Packing in Chicago
Heights, Illinois, where he observed 10 or 12 pickets in
front of the market, some "standing in the driveway and
some on either side." The picket signs bore a legend "to
the effect do not buy Oak Ridge Dairy products distributed
by John Pralle. Local 753, 754." Other evidence adduced
by the General Counsel reveals that the text of some of
such signs reads "Please Don't Buy Oak Ridge Milk and
Dairy Products Distributed by John Pralle. Thank You.
Milk Drivers Union Local 753, Dairy Employees Union
Local 754." See General Counsel's Exhibit 13. Still other
evidence of the General Counsel disclosed that some signs
contained wording identical to the foregoing but addi-
tionally carried the phrase "To the Consumer" preceding
the word "please." See General Counsel's Exhibit 14.
While Pralle was present Turner, who introduced
himself as a business agent of Local 753, and whom Pralle
now knows to be such, spoke to him in the presence of 10
or 12 men. Turner was in the group. According to a report
filed by Local 753 with the U.S. Department of Labor,
Turner is a trustee of Local 753. See General Counsel's
Exhibit 8. Stating that he was "waiting for Mr.
Christiano," Turner inquired of Pralle "if we couldn't
settle this argument we are having ... the difference of
opinion." Pralle knows that Christiano is a business agent
of Local 753. General Counsel's Exhibit 8 describes
Christiano as recording secretary of Local 753.
Continuing, Turner told Pralle that the latter could see
McNulty or Haggerty "over in Cicero at 100 67th Street."
McNulty is president and Haggerty is secretary-treasurer
of Local 753.
During this time a Swift & Co. truck arrived at Stone
Market and stopped. One of the men, a picket, who was
with Turner, asked the driver of the Swift truck to
recognize or respect the picket line and not to drive
through it. Nevertheless, Turner said nothing. At the time
a picket line was on either side of the driveway. At the
time this incident occurred Turner and Pralle were
standing within 2 feet of the truck. When Pralle became
aware that the Swift driver was not going to make his
delivery, Pralle spoke to him, asking him to go down the
street a couple miles where Pralle would meet him "and
pick up the chickens." The driver consented to this
arrangement . Thereupon the truckdriver backed away and
left. However, the picket remained and "just stood
around." Soon Pralle met the Swift truckdriver as agreed
and Pralle got the chickens in his car and drove back to
Stone's, where he delivered them to the market.
On July 8, 1965, Pralle also visited the premises of Road
Chief Service Station in Crete, Illinois, about 8:30 in the
morning , where he noticed there Willett, Christiano, Road
Chief's owner, and an employee of Road Chief.
On the Saturday (July 10) following July 8, Pralle
observed pickets carrying a picket sign at the premises of
Jim's Sinclair Station in Chicago Heights, Illinois. This
sign , according to Pralle, bore substantially the same
language as that which he saw at Stone Meat Market.
These pickets "walked along the driveway on the public
land." About 10 p.m. that night, Pralle observed Willett
and Christiano carrying these signs at Jim's Sinclair
Station.
On Sunday, July 11, Pralle again saw Christiano inside
the office at Jim's Sinclair Station. Raby, the owner of
Jim's Sinclair, Pralle, "a man from Maple Lane Dairy," a
business agent from the Oil Drivers' Union, and Raby's
son were present at the time. Christiano told Raby to "take
the milk out and he [Christiano] would buy the milk" to
get it out of the station.
On July 8, 1965, Pralle also observed pickets at North
Side Grocery, Chicago Heights, Illinois , carrying signs
substantially similar to those described in General
Counsel's Exhibits 13 and 14. He also saw pickets carrying
similar picket signs on July 9 and 10, 1965, at Spotlite
Grocery, Chicago Heights, Illinois. One of the pickets he
recognized on both days was Red Doran.
On July 10 and 12 Pralle observed similar picketing at
Cotton Food Shop, Harvey, Illinois.
William Stilts has been manager of Road Chief Gas
Station, Crete, Illinois, since November 1964. About
7 a.m. on Thursday, July 5, 1965, Pralle's milk truck
arrived there, driven by a Pralle employee. The milk is
labeled as Oak Ridge milk. As Pralle's truckdriver was
delivering the milk, Stilts observed one William Tobeck,
also known as Willett, accompanied by two men, speak to
Pralle's truckdriver. Willett then told Stilts that Road
Chief could not handle Oak Ridge products any more. But
Stilts ignored him and instructed Pralle's employee to
continue unloading the milk. When one of the men
accompanying Willett said he was going to "throw up
pickets," Stilts called his boss, Carl Brothers, who arrived
in about 15 minutes. One of the men with Willett asked
Brothers if he was going to keep selling Oak Ridge milk.
When Brothers replied in the affirmative , this man stated
he would have pickets there within a half-hour. Thereupon
Willett remarked that Brothers would have to fill up the
gas tanks with milk "because you ain't going to have no
gas."
Stilts was unable to identify this man with Willett when
Stilts first testified on June 7, 1966. When the General
Counsel at the hearing stated, in the presence of Stilts,
that such person was Christiano, an officer of Local 753, I
remarked that if Stilts later identified that man as
Christiano, I would be inclined to ignore such testimony.
Testifying again on August 22, 1966, Stilts identified a
person in the hearing room as the same person he saw at
Road Chief but did not ascribe a name to him . Thereupon
MILK WAGON DRIVERS UNION, LOCAL 753
the General Counsel placed his hand on that person and
requested that "the record reflect that I placed my hand
on the left shoulder of Mr. Anthony Christiano who just
testified." But this unsworn statement cannot be
considered as evidence. It is therefcre my opinion, and I
find, that Stilts has not sufficiently identified Christiano as
the person he described in his testimony of June 7; 1966.
Later in the day of July 5, 1965, about 8 a.m., three or
four pickets appeared at Road Chief Gas Station. They
patrolled both approaches to the station. These
approaches are used not only by customers but also by
persons making deliveries to Road Chief. They remained
only until the milk was delivered, a period of about an hour
to an hour and a half, and then left. Besides milk, Road
Chief also sells bread and ice cream.
James Raby owned Jim's Sinclair Station in Chicago
Heights, Illinois, from July 1964 to September 1965,
although at the time of the hearing he was employed by
International Register. At that site, which he calls a milk
station , Raby sold milk and gasoline.
About Thursday, July 8, 1965, Raby found two persons
already picketing his station when he opened it at
approximately 8 a.m. Later more pickets arrived at various
times and some left. Thus the number of pickets soon
varied from 8 to 16. They displayed signs carrying a
request not to buy Oak Ridge milk distributed by John
Pralle and patrolled across the front drive leading into the
Station. They also distributed handbills. Two drives lead
to the Station; each is used by customers and deliverymen.
The pickets finally left at 4:30 or 5 p.m. on Sunday,
July 11, 1965.
During Sunday morning, July 11, 1965, Christiano, an
officer of Local 753, spoke to Raby in the presence of a
representative of a Teamster Service Station Attendents
Union, whom Raby knew. Raby has a "contract" with this
latter union . Christiano was introduced to Raby by this
representative of the Service Station Attendants Union.
Assuring Raby there was no dispute with him, Christiano
offered to remove the pickets from Raby's Station as soon
as Raby bought milk from someone whose employees were
organized by the Teamsters; i.e., a "Teamsters Dairy."
Raby refused to accede to this. Thereupon the Service
Station Attendants Union representative stated "they
would stop all deliveries coming to the Station, and
Christiano demanded that Raby take milk from any other
dairy as long as it was a "Teamster Dairy." Raby is open
for business on Sundays. At the above meeting the Service
Station Attendants Union representative also said he was
going to subpena Raby's books because Raby was "hiring
help." Raby denied this, insisting his was a "one man
operation."
At no time prior to the picketing did anyone or any of the
Respondents orally or in writing notify Raby of a dispute
involving Oak Ridge and Pralle or request him not to
handle Pralle's milk.
Later that afternoon Christiano and the Service Station
Attendants Union representative again came. Pralle was
present also. This time Christiano repeated his demand
that Raby stop buying milk from Pralle and take it from
anyone else who was organized by the Teamsters. And the
Service Station Attendants Union representative
explained he was present because his union was affiliated
with Local 753 as a "brother union" and again threatened
to stop deliveries to Raby. Soon another milk dealer came
to Baby's Station and joined the group mentioned in the
preceding paragraph. This dealer had a dairy in Crete,
Illinois.
905
In 1965, Norman Cotton owned a grocery store called
Cotton Foods Shop in Harvey, Illinois. It has one entrance,
used by customers, deliverymen, and men who service the
store. About a week before July 8, 1965, Christiano
introduced himself to Cotton at Cotton's store and also
handed his card to Cotton. About 9 a.m. on Thursday,
July 8, 1965, Cotton observed two men in a car parked in
the store's driveway and three men with picket signs
patrolling up and down the sidewalk in front of the store.
Those signs bore a legend not to buy Oak Ridge Farm milk
from John Pralle. Christiano was present.
During the time such picketing continued, Cotton, in the
presence of the pickets, asked Christiano what the
picketing was all about. Christiano replied that he had
warned Cotton before this, that Oak Ridge Farm was not
union, and he would continue to picket the store until
Cotton obtained his milk from a company other than
Pralle. Christiano also promised to stop the picketing
provided Oak Ridge milk, delivered by John Pralle, was no
longer sold at Cotton's place of business. Assuring
Christiano that he was not against unions , Cotton
answered that he was willing to drop Oak Ridge but only
"after I find another dairy." At this point Christiano
insisted on an immediate change of milk companies and
threatened to stop all deliveries to Cotton if it did not
occur.
Walter Rich, who is employed by Rainbow Bake
Company of Joliet, Illinois, as a driver-salesman, is a
member of Teamsters Local 179 of Joliet. About 7 a.m. on
about July 8 or 9, 1965, Rich drove to Stone Meat Market
in Chicago Heights, Illinois, to make a delivery thereat. He
saw picketing there. Some of the pickets stopped Rich at
the market in the drive which leads from the street to the
premises of Stone.
About five or six pickets were displaying signs which
requested people not to buy Pralle milk. One of the pickets
asked Rich not to cross the picket line. After inquiring as
to the purpose of the picketing, Rich replied that he would
not cross the line. Thereupon the said picket told Rich to
call Rich's employer and inform him of the decision not to
deliver to Stone's; and such picket also added that the
pickets would picket "all the stores that the fellows
service." As Rich did not make his delivery at Stone's, he
called his superior at Rainbow to apprise him of this fact.
Another witness who testified for the General Counsel is
Guy Arcaris , a route salesman for Silvercup Bakers, Inc.,
and a member of Teamsters Local 142. On about July 8,
1965, about 11 a.m., Arcaris observed pickets at the
premises of Spotlite Foods in Chicago Heights, Illinois.
While at the premises of Spotlite Foods, one Red Doran, a
representative of Local 801 of the Teamsters, Spoke to
Arcaris in the presence of some of the pickets. This
conversation was excluded at the hearing because Doran's
connection with, or relation to, any of the Respondents
was not shown. About 12:30 p.m. Arcaris also observed
pickets at North Side Grocery in Chicago Heights on the
same day, where he drove to make a delivery. A picket
carrying a sign at North Side Grocery came to the Arcaris
truck when it stopped there and informing Arcaris that
this was a Teamster picket line, asked him not to make a
delivery there. But Arcaris replied that he would make the
delivery until his local union became aware of the
picketing and instructed him to the contrary. Thereupon
the picket promised to notify Local 142 of the picketing.
North Side Grocery of Chicago Heights, Illinois, a retail
grocery store and meat market, is owned and operated by
John Kosciolek. Prior to July 8, 1965, he sold Oak Ridge
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
milk there. As he prepared to open the store at or about
8 a. in on July 8, 1965, he noticed some men sitting in a car
parked along the side of the store. Soon these men left the
car, placed picket signs over their bodies, and patrolled
the front and side of the store and the rear entrance to the
store. There are two usable entrances to the store: one in
front and one in the rear. Only customers use the front
door. While suppliers deliver only through the rear doors,
customers sometimes use it also . Picketing continued until
the following Monday, July 12. By then Kosciolek had sold
the few gallons of Oak Ridge milk on hand.
Kosciolek spoke to one of the pickets. The latter assured
him that "everything would be settled, they wouldn't be in
front of [Kosciolek's] place any more" if Kosciolek
"handled other milk from the local dairy." Replying,
Kosciolek referred to the fact this was a free land and
insisted on selling Oak Ridge milk.
Pete Fiore owns Spotlite Foods, a retail grocery and
meat store in Chicago Heights, Illinois. On Thursday,
July 8, 1965, about 9 a in. two persons patrolled in front of
the store with signs in substance reading "please don't
buy Oak Ridge milk." At the time Spotlite sold Oak Ridge
milk.
Another witness who testified for the General Counsel is
Anthony W. Christiano, recording secretary of
Respondent Local 753. His testimony is summarized in the
ensuing paragraphs. He testified that signs containing the
language of General Counsel's Exhibits 13 and 14 were
displayed at or about the premises of Stone Market, Road
Chief, Jim's Sinclair, North Side Grocery, Spotlite Foods,
and Cotton Foods Shop during the month of July 1965. I
find this constitutes picketing. At Road Chief, Crete,
Illinois, such picketing occurred between 8 and 10 a.m. on
July 10. Members of Local 753 and Local 754 did the
picketing. One of the pickets at Road Chief was Christiano
himself. Bob Turner was also present. Prior to this, on
July 6, while accompanied by Bob Turner, a member of
the executive board and a business agent of Local 753,
Christiano spoke to someone at Road Chief.
Jim's Sinclair Station at Chicago Heights, Illinois, was
picketed in the morning of July 8, by members of Local
753 and Local 754, according to Christiano. At times he
personally engaged in picketing at that place. He spoke to
Sinclair's owner, Jim Raby, twice on the afternoon of
Sunday, July 11. However, Pralle was not present on
either occasion.
In the first conversation, Raby asked Christiano what
was going to happen to all his milk. Christiano offered to
buy it at the retail price and donate it to an old people's
home. Pickets were patrolling at the time. About an hour
and a half later, Christiano again spoke to Raby. This time
Raby agreed to "get rid of Pralle 's milk" and Christiano
paid him for it. Thereupon Raby called Pralle to stop
further deliveries and also called Kramer of Maple Lane
Dairy to make milk deliveries to Raby. Later Kramer
removed Pralle's milk. Christiano on cross-examination
testified that the above conversation with Raby occurred
on the Sunday following July 11, 1966, and that the
picketing was withdrawn at this station as soon as Raby
promised to obtain his milk from Maple Lane Dairy. Thus
picketing at this location lasted 11 or 12 days, according to
Christiano.
At no time did Willett, business agent of Local 801 of the
Teamsters, accompany Christiano to any of the 6 picketed
stores mentioned above Nor did Christiano inform or
notify any union other than Local 753 and Local 754 of his
intent to picket these stores. Members of Local 754
picketed all the other of the above stores as well as Jim's
Sinclair Station and Road Chief. All picketing was
sanctioned by and pursuant to a decision of the executive
board of Local 753 which Christiano attended.
At North Side Grocery picketing occurred on July 12, a
Monday. Christiano was one of the pickets. On the
following Wedensday or Thursday, Christiano personally
picketed Cotton Foods Shop in the afternoon. Local 753
started its picketing there in the morning of July 8 A
"Local 753 man" was in charge of the picketing at Cotton
Foods Shop. Picketing at Stone Meat commenced in the
morning of July 8.
On July 6, Christiano spoke to the owner of Road Chief
in the presence of Local 753 Business Agent Bob Turner.
Handing the owner a "letter," Christiano told him that if
he did not discontinue selling milk distributed by John
Pralle, "we" would engage in "information picketing and
handbilling." Thereafter, Road Chief was picketed as
recited above. Returning early in the morning on Saturday,
July 10, Christiano asked Road Chief's owner whether he
was still selling Pralle's milk. Upon receiving an
affirmative answer, Christiano replied that "we are going
to have to picket you " Later that morning, Willett of
Teamsters Local 801, arrived on the scene and informed
Christiano that he, Willett, "has a settlement." That
settlement provided that Kramer of Maple Lane Dairy
would thereafter service Road Chief, and that Pralle would
remove his milk therefrom. Willett obtained this
settlement on his own initiative and without any request or
prodding by Christiano.
The foregoing paragraphs epitomize Christiano's
testimony for the General Counsel.
B. Evidence of Respondent Local 7531
This Respondent called as its first witness John Pralle,
the Charging Party in Case 13-CC-540. He testified that
the picket signs he mentioned in his testimony for the
General Counsel contained language identical to that in
General Counsel's Exhibits 13 and 14, and that these signs
were displayed at all the stores enumerated in the
amended complaint These stores are Road Chief, Jim's
Sinclair, Spothte, North Side, Cotton, and Stone. On
July 8, 1965, Pralle arrived at Stone Meat Packing about
9 a.m.
Anthony Christiano also testified as a witness for Local
753 His testimony follows. Jacobs and Gore, counsel for
Local 753, prepared the language appearing on the picket
signs in evidence as General Counsel's Exhibits 13 and 14.
On July 6, 1965, together with Robert Turner, a business
agent and executive board member of Local 753,
Christiano served a letter, dated July 6, 1965 (Resp.'s Exh.
7), at Road Chief, Jim's Sinclair, North Side, and Cotton
Foods. In part Respondent's Exhibit 7 invites the store
owners who buy milk and dairy products from John Pralle
to "voluntarily co-operate with us by refusing to buy milk
and milk products from John Pralle or any other such
unfair distributor... In the event you continue to
purchase milk and milk products from this unfair source,
it shall be our unpleasant duty to engage in consumer
picketing and handbilling at your establishment ... to
' No evidence was adduced by Respondent Local 754
MILK WAGON DRIVERS UNION, LOCAL 753
advise the public, including consumers , of these
circumstances . The legend of a picket sign to be used and
a copy of the handbill which will be distributed are
enclosed for your information ... [We believe ] that a fair
minded citizen must support our campaign against
substandard earnings , benefits , and working conditions
. Milk Drivers Union Local 753. Dairy Employees Union
Local 754."
In addition , Christiano and Turner distributed handbills
at all the above-mentioned four stores beginning on July 8,
1965, except that they were not passed out until July 10 at
Road Chief. No handbills were given to drivers servicing
these stores. Respondent Exhibit 6 is addressed "to the
public and all consumers" and in part, asks them to
"please help us protect our members-your friends and
neighbors-by refusing to purchase Milk and Dairy
Products produced by Oak Ridge Dairy, and distributed
by John Pralle .. Milk Drivers' Union Local 753. Dairy
Employees' Union Local 754 " It also asserts that "we are
not asking the employees of this establishment, or other
persons doing business with this establishment, to refuse
to pick up, deliver, or transport goods, or perform their
regularly assigned duties. We have no dispute with this
establishment. "
When Christiano and Turner entered Jim's Sinclair
Station on July 6, 1965, they gave a copy of Respondent's
Exhibit 7 to the owner's son. Upon ascertaining that the
owner worked elsewhere during the day, and that the son
"ran" the station in the daytime, they explained
Respondent's Exhibit 7 to the son and told him they were
going to start consumer picketing and handbilling of the
station. The son promised to "explain that" to his father.
Picketing at Road Chief commenced on Saturday,
July 10. Christiano was in charge of this as well as the
entire "campaign against Pralle at these various
locations." In conducting this campaign Christiano
designated a picket captain at each location to be in
charge of the pickets there. At Road Chief, Christiano
noticed about 10 or 10:30 a.m. that Willett was also there.
But Christiano at no time requested the presence of
Willett or Doran at any location where Local 753 picketed
stores selling Pralle's milk, and never asked Willett or
Doran to aid Local 753 or to act or speak for Local 753. Nor
did Christiano ask for the presence or assistance of any
represenative of the Service Station Attendants Union or
the Oil Drivers Union. However, about the second or third
day of the "strike," Christiano ran into Jacobs, a business
agent of Local 705, the Gas Station Attendants Union, at
Jim's Sinclair Station. Jacobs told Christiano that he had
come there for the purpose of organizing the owner's son
because the son worked there all day.
The only time Christiano spoke to Cotton, owner of
Cotton Foods Shop, was several weeks before Local 753
picketed there in early July 1965. Edward J. Horan, a
steward of Local 753, accompanied Christiano at the time.
When Christiano requested Cotton to remove Pralle's
milk, Cotton replied that he would gladly comply if
Christiano found another dairy to supply milk to him.
However, Cotton mentioned that he was $15,000 in debt
and had gambled away most of his money "on the horses."
Promising to find a dairy for Cotton which "picked or
could pick up the slack," Christiano informed Cotton that
"we were going to inform [sic] picketing and handbilling
of" the store. At Cotton's request, Christiano "gave him a
week or 10 days."
About July 6, 1965, Christiano and Turner handed Mrs.
Cotton, the wife of the owner of Cotton Foods Shop, a copy
907
of Respondent's Exhibit 7. They told her that "we were
going to start consumer picketing within a few days and
handbilling." Mr. Cotton was away at the time.
Christiano was not at or near the premises of Jim's
Sinclair at 10 p.m. on July 10 or 17, 1965. Nor did he talk to
any driver making deliveries to North Side Grocery about
Monday, July 12, 1965. Further, he did not observe a
Silvercup Bakery driver at North Side nor saw any person
or picket talking to any driver at that location . At no time
did he hear any picket speaking to any truckdriver.
Christiano's testimony for Respondent Local 753
concludes at this point.
Another witness for Local 753 is Robert G. Turner, a
trustee, business agent, and member of the executive
board of Local 753. He testified that Christiano was in
charge of the picketing and handbill campaign. About
July 8, 1965, Turner was present at Stone Meat where, he
testified, "we" distributed handbills (Resp.'s Exh. 6) to
customers entering that establishment . He also picketed
with signs similar to General Counsel's Exhibit 13 or 14 at
Stone's. In addition, he and Christiano distributed a letter
(Resp.'s Exh. 7) to the first six places set forth in
paragraph 2(d) of the complaint In the owner's absence,
he and Christiano gave a letter (Resp. Exh. 7) at Jim's
Sinclair to the owner's son there on July 6, 1965. At Cotton
Foods Respondent's Exhibit 7 was presented to Mrs.
Cotton, the owner's wife, on the same July 6, with a
request that she refrain from selling milk distributed by
Pralle. She replied that she did not know how this could be
accomplished because she owed Pralle a substantial
amount of money and, in addition, Mr. Cotton "was sort of
a gambling man."
About July 8, 1965, while Turner was "walking the
picket line" in front of Stone Meat, a man asked him
"what could be done to straighten this matter out ... how
this could be settled, what the problem was." Turner
replied "by getting rid of Pralle's milk." Thereupon,
Turner introduced himself and the stranger stated that he
was John Pralle. When Pralle again inquired if Turner
could "straighten it out," Turner told him to see Haggerty
(secretary- treasurer of Local 753) at 220 South Ashland or
McNulty (president of Local 753) at 167th and Cicero.
Turner mentioned to Pralle that Christiano was in charge
of the "campaign." Then Pralle departed. No truck
stopped near them during this dialogue; nor did Turner
have or overhear a conversation with any truckdriver at
this time. In fact, Turner observed no one talking to any
truckdriver during this period. Further, Turner did not say
to or hear anyone say to a Swift driver to honor the picket
line and not to cross it; nor did he hear Pralle make
arrangements with anyone to "get chickens from the
driver at some place else."
Turner did not pass any handbills (Resp. Exh. 6) to any
truckdrivers, although he did give them to others entering
Stone's Nor did he observe anyone else give such
handbills to truckdrivers.
C. Discussion and Concluding Findings
Many of the essential factual issues were not in dispute.
Where dispute exists, it has been resolved in accordance
with my evaluation of the credibility of the witnesses and
the more probable inferences from the evidence based on
the entire record.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. As to Section 8(b)(4)(i)(B)
In order to establish a violation of this section of the Act
the burden is on the General Counsel to show, in pertinent
part, that all of the following constituent elements co-exist:
(a) a labor organization engages in specific conduct,
(b) that conduct comprises a strike, or inducement or
encouragement of any individual to engage in a strike or a
refusal in the course of his employment to perform
services; (c) such conduct does not consist of a primary
strike or primary picketing; and (d) an object of such
conduct described in (b), above, is to force or require any
person to cease selling the products of or to cease doing
business with any other person
I have found that Respondents Local 753 and Local 754
are labor organizations. See section II, supra. Hence, the
first ingredient is manifestly present.
At this point it is desirable to ascertain the primary
dispute, if any. It is my opinion, and I find, that Local 753
and Local 754 have a labor dispute with John Pralle and
Oak Ridge Dairy and that this is the only primary dispute
disclosed by the record. Alden Press, Inc., 151 NLRB 1666,
1667 In fact the picket signs (G.C. Exhs 13 and 14) so
declare and the letter and handbill of Respondents Local
753 and Local 754 (Resp. Exhs. 7 and 6) reaffirm this
announcement. Thus the letter (Resp. Exh. 7) expressly
assures the secondary stores that Respondents have a
dispute only with Pralle and Oak Ridge and the handbill
(Resp. Exh. 6) emphasizes that "we have no dispute with
this [the store selling Pralle's and Oak Ridge's milk]
establishment." Although there is evidence in the record
that the Service Station Attendants Union may have a
dispute with Jim's Sinclair Station, which I find below to
be one of the secondary employers, I find that said dispute
is unrelated to the primary dispute found above. In fact
Sinclair's owner, Raby, testified that Christiano assured
him no dispute existed between Respondents and Raby. I
credit Baby on this issue. Hence I find that Jim's Sinclair
Station is not involved in a primary dispute with
Respondents Local 753 and Local 754.
Further, I find that the following are secondary persons
or employers, and that neither Local 753 nor Local 754 has
a primary labor dispute with any of them Road Chief
Service Station, Crete, Illinois; Jim's Sinclair Station,
Chicago Heights, Illinois; North Side Grocery, Chicago
Heights, Illinois; Cotton Foods Shop, Harvey, Illinois,
Stone Meat Packing Inc., Chicago Heights, Illinois; and
Spotlite Foods, Inc., Chicago Heights, Illinois.
It is undemed that Respondent Local 753 displayed the
above six stores with signs received in the record as
General Counsel's Exhibits 13 and 14 and that Local 753
authorized such. I so find. I have already found that
exhibiting such signs constituted picketing. Further, I find
that Anthony Christiano is an officer and agen, of Local
753, and that Local 753 appointed Christiano to be in
charge of a campaign against Pralle and Oak Ridge, that
the foregoing picketing was authorized and the letter
(Resp. Exh. 7) and handbill (Resp. Exh 6) were printed
and distributed as part of said campaign; that officers and
agents (Christiano and Turner, each of whom I also find to
be an officer and an agent of Local 753, and all members of
the executive board of Local 753 except Secretary-
Treasurer Haggarty) engaged in picketing themselves and
authorized picketing by members of Local 753, and that
Christiano and Turner, as officers and agents of Local 753,
distributed said letter and handbill to the six stores found
above to be secondary persons or employers.
I also find that Respondent Local 754 is accountable for
the picketing, handbilling, and distribution of the letter.
This is because these instruments "specifically named
[this] Respondent as being responsible therefore...."
Industrial Janitorial Service, Inc., 151 NLRB 1424
footnote 1. Further, I also find Local 754 so accountable by
reason of the presence of Local 754 members on the picket
line and that a 754 man acted as picket captain at Cotton
Foods.
At this point it is desirable to point out that the General
Counsel's brief disclaims that the handbilling constitutes
"violative activity", rather, he contends that "the
gravamen of this case is the picket and conversations."
Hence the question is whether the picketing and
conversations transgress the Act. In this connection I find
that only Local 753 both picketed and engaged in
conversations, and that Local 754 only picketed; but since
Local 753 and 754 engaged in a joint undertaking, the
conversations of Local 753 may be attributed to Local 754.
Further I find that oral and written requests to secondary
employers not to buy Pralle's milk do not contravene the
Act. Korber Hats, Inc., 124 NLRB 604, 612; Lohm Sales,
132 NLRB 901, 904.
Not all secondary picketing is unlawful. Thus, if a union
pickets a primary roving situs while said situs is present at
a secondary location in connection with the primary
employer's normal business there such action does not
transgress the pertinent subsections of Section 8(b)(4) of
the Act, if it complies with Moore Dry Dock Standards.
I B.E.W., Local Union 861 (Plauche Electric, Inc.), 135
NLRB 250, 255. However, when such picketing at the
secondary location persists during the time that the
primary situs is absent therefrom, the picketing of the
secondary employer becomes indefensible because no
primary aspect is present at the secondary scene.
I.B.E W., Local Union 861, supra, at 255, National
Maritime Union v. N.L.R.B., 367 F.2d 171 (C.A 8). In the
instant case, I find that Local 753 and Local 754 often
picketed the six secondary stores in question when no
Pralle or Oak Ridge truck made a delivery thereto or was
present on normal business thereat. Hence I find that
I.B.E.W., Local Union 861, supra, is not applicable to the
instant case.
So far the picketing at the situs of the six secondary
stores has been considered without reference to the
language printed on the signs. But that language cannot be
ignored, for the Supreme Court has held that peaceful
consumer boycott picketing at secondary retail locations is
sheltered at all times when limited solely to appealing to
customers to refrain from buying the primacy employer's
product. N.L.R.B. v. Fruit & Vegetable Packers &
Warehousemen, Local 760, et al , 377 U S. 58; N.L.R B. v.
Upholsterers Frame & Bedding Workers Twin City Local
No. 61, 331 F.2d 561 (C.A. 8). On this branch of the case I
find that the test of the picket signs conforms to the
requirements of the above decision of the Supreme Court
in that it is directed to consumers to abstain from
purchasing Oak Ridge milk and dairy products delivered
by distributor John Pralle; and nothing in said text appeals
to customers to forbear from buying other products or to
employees of the stores or suppliers of the stores to refuse
to serve their employers. Further I find the picketing was
peaceful at all times. Since the signs themselves do not
transgress the Act, the question is whether other conduct
of Respondent belles the message on such signs so that the
picketing in fact was designed, in part at least, to force or
require the six secondary stores to cease doing business
MILK WAGON DRIVERS UNION, LOCAL 753
with Pralle by inducing or encouraging third parties to
refuse to enter the secondary premises and secondary
employees to refuse to perform services for their
employers. On this aspect of the case I find that
Respondents engaged in certain conduct which has
destroyed the protective character of the language of the
picket signs and which, accordingly, I find demonstrates
upon assessing the whole record that Respondents
violated Section 8(b)(4)(i)(B) of the Act. See Capital
Service, Inc., 100 NLRB 1092, Alden Press, Inc., 151
NLRB 1666, 1667.
a. At Stone Meat Packing
On the morning of July 8, 1965, Walter Rich, a driver-
salesman employed by Rainbow Bake Company, was
stopped by pickets at Stone's driveway One of the pickets
requested Rich not to cross the picket line, and Rich
complied. Thus he failed to make a delivery to Stone. The
fact that this occurred on the picket line, a line authorized
and established by Respondents, is sufficient to attach
liability upon Respondents for this conduct, regardless of
whether it was expressly authorized or not. International
Longshoremen's and Warehousemen's Union, C.I.O., Local
6, et el., 79 NLRB 1487, 1509; Richfield Oil Co., 95 NLRB
1191, 1193; Sealright Pacific, 82 NLRB 271, 272. See Jay-
K Independent Lumber Corp., 108 NLRB 1323, 1325.
Also at Stone's on July 8 a picket asked a Swift
truckdriver not to make a delivery. This occurred in the
presence of Union Agent Turner. Respondents' contrary
evidence is not credited. This also negates the message of
the picket sign that Respondents were carrying on no more
than an appeal to consumers. I attach no significance to
the fact that the appeal to the Swift driver may have
succeed in stopping his delivery to Stone; for it is
inducement and encouragement, regardless of its
realization, which is the gravamen of the offense.
Associated Wholesale Grocery of Dallas, 118 NLRB 1251,
1253; Industrial Chrome Plating Co., 121 NLRB 1298
footnote 9; Carolina Lumber Co., 130 NLRB 1438, 1440;
United Brotherhood of Carpenters, Local 1839 (Kroeter
Construction Co.), 160 NLRB 1.
Turner also spoke to Pralle in a manner indicating
economic pressure was being applied to secondary
persons buying from Pralle. But this does not necessarily
establish illegality (National Maritime Union v. N.L.R.B.,
367 F.2d 171 (C.A. 8)), because economic loss is a natural
consequence of a consumer boycott N.L.R.B. v. Fruit &
Vegetable Packers Warehousemen, Local 760, et al., 377
U S. 58, 72.
b. At Road Chief Service Station
An incident related by Station Manager Stilts will be
ignored as I have found that Stilts did not identify
Christiano as the man who spoke to him. Although I credit
Stilts as to what Willett told him, the record is clear that
Willett was not an officer, agent, or picket for either
Respondent. Hence, I find Respondents may not be held
accountable for Willett's conduct.
Picketing also occurred at both approaches to Road
Chief. Since one of these is used principally by
deliverymen, although it is also infrequently used by
customers, I find that the picketing of the entrance used
by deliverymen is prohibited by Section 8(b)(4)(i)(B). Alden
Press, Inc., 151 NLRB 1666,1667.
However, I find no violation in the fact that the pickets
were withdrawn at Road Chief following a "settlement"
909
resulting in removing Pralle's milk from sale at this store.
This is because the success or failure of picketing is
inconsequential ; it is the picketing and other conduct
which must be gauged regardless of its success, to
ascertain whether a violation has occurred. Associated
Wholesale Grocery of Dallas, 118 NLRB 1251, 1253;
Kroeter Construction Co., 160 NLRB 1.
c. At Jim's Sinclair Station
On about July 11, 1965, Local 753's agent, Christiano,
spoke to Raby, the owner of Jim's Sinclair Station, in the
presence of Pralle. Respondents had been picketing this
station since July 8, 1965, with signs carrying the language
of General Counsel's Exhibit 13 or General Counsel's
Exhibt 14. During this conversation, Christiano assured
Raby there was no dispute with him and offered to
withdraw the pickets from the station as soon as Raby
purchased his milk from a dairy which the Teamsters had
organized. Patently this means , and I find, that Raby
would be picketed by Respondent until he ceased doing
business with Pralle as I find that Pralle had not
recognized any Teamster union. Manifestly Christiano's
words embrace more than a consumer boycott, for they are
addressed to an employer and enmesh him in the
campaign against Pralle . Hence they go beyond the
protection of the priviso to Section 8(b)(4) because they do
more than persuade customers not to buy; instead, these
words show that the picketing is directed, in part at least,
against the secondary employer. Alden Press, Inc., 15]
NLRB 1666, 1668, is distinguishable because there, unlike
here, an express finding was made that neither secondary
employers nor the public "considered that these locations
were in fact picketed " Cf. N.L.R.B. v. Fruit & Vegetable
Union, Local 760, et al., 377 U.S. 58, 70, 72, where the
court suggests that consumer picketing is protected only
when "confined ... to persuading customers to cease
buying the product of the primary employer .. " and that
when picketing is not so confined "the union does more
than merely follow the struck product; it creates a
separate dispute with the secondary employer."
Although Respondents picketed both drives leading to
Raby's store , I find that this conduct is colorless to
constitute a violation , for both drives are used by
customers. Merely because deliverymen also use both
drives does not compel a different result.
In the conversation of July 11, 1965, mentioned above,
Raby at first refused to change from Pralle to a union
dairy. Thereupon a representative of the Service Station
Attendants Union , who was also present , stated "they"
would stop all deliveries coming to the station . Christiano
did not controvert this, and again demanded that Raby
drop Pralle and do business with a "Teamster Dairy."
Later in the day, Christiano and the Service Station
Attendants Union representative returned together to the
station and each again repeated his foregoing statements
to Raby. Evidence of Local 753 inconsistent with the
foregoing findings is not credited. This time Raby agreed
to stop buying Pralle's milk and Christiano bought the
supply of such milk on hand. In addition Raby agreed to
buy his milk from Maple Lane Dairy. Thereupon the
pickets were withdrawn by Christiano. It is my opinion,
and I find, that the statements of the Service Station
Attendants Union representative were adopted by
Christiano, since (1) they were made in Christiano's
presence by a person who said that he came with
Christiano as a representative of a brother Teamster
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, and (2) Christiano did not repudiate them. Further,
I find that the statements of Christiano and the other union
representative do more than merely follow the struck
product; they create a separate dispute with Raby, for they
show that the picketing is intended to shut off all deliveries
to a secondary employer unless he aids Respondents in
their dispute with the primary employer. See Tree Fruits
case, 377 U.S. 58, 70, 72.
However, I find no violation in the fact that Raby
changed milk dealers. This is because the consequences
of picketing are legally innocuous; only the conduct of
Respondents must be evaluated in ascertaining whether
8(b)(4) has been transgressed See Tree Fruits, supra, 377
U.S. 58, 72.
d. At Cotton Foods Shop
Respondents picketed Cotton Foods Shop with signs
bearing the text of General Counsel's Exhibit 13 or 14.
While such picketing transpired, owner Norman Cotton
asked Christiano, who was with the pickets in front of the
store, what the picketing was all about. Christiano replied
that Cotton had been previously warned, that Oak Ridge
was nonunion, and that the pickets would remain until
Cotton obtained his milk from someone other than Pralle.
When Cotton did not immediately yield, Christiano
remarked that he would stop all deliveries to Cotton unless
Cotton immediately changed his milk supplier. Evidence
of Respondents not consonant with the foregoing is not
credited.
The fact that Cotton had been previously warned
discloses no violation, for he was warned (orally and by
Resp. Exh. 7) only that he would be picketed with General
Counsel's Exhibit 13 or 14 and handbilled by Respondents'
Exhibit 6 But these three devices have been found by me
to be sanctioned by the Act; indeed, the General Counsel
concedes that the handbills are proper. Since no illegality
is revealed in the picket signs or handbills (Minneapolis
Co., 132 NLRB 40, 42), it is equally lawful to threaten to
display such picket signs or distribute such handbills in
front of a noncooperating store. N.L.R.B. v. Servette, Inc.,
377 U S. 46, 57; Korber Hats, 124 NLRB 604, 612; Stephens
Co., 133 NLRB 1393,1396.
e At North Side Grocery
On July 8, 1965, Respondents picketed North Side
Grocery, in Chicago Heights, Illinois, a retail grocery store
and meat market. They patrolled past both the front and
rear entrances. Since customers only use the front
entrance, no violation has occurred solely by reason of the
picketing thereof. However, the rear entrance is used by
suppliers to deliver and by a few customers. I find that the
rear door serves principally as a delivery entrance, and,
therefore, the patrolling thereof does not constitute
consumer boycott picketing immunized by the Supreme
Court's Tree Fruits doctrine in 377 U.S. 58. Hence I find
the picketing of the rear door to be proscribed by Section
8(b)(4) as inducement and encouragement of employees of
North Side and its suppliers not to perform services for
their respective employers at the situs of the picketing.
See Capital Service, Inc., 100 NLRB 1092, 1667; Alden
Press, Inc., 151 NLRB 1666, 1667.
Also at North Side a picket carrying a sign similar to
General Counsel's Exhibit 13 or 14 spoke to truckdriver
and route salesman Guy Arcaris, an employee of Silvercup
Bakers, Inc., when Arcaris stopped to make a delivery
there. Informing Arcaris that this was a picket line, the
picket asked him not to make a delivery at North Side.
Replying, Arcaris said he would not yield to this request
and would complete the delivery until his union,
Teamsters Local 142, instructed him to the contrary.
Thereupon the picket promised to notify Local 142. I find
that the picket's request constitutes inducement and
encouragement under Section 8(b)(4). Further, I find that
the picket's promise to notify Local 142 is significant, as it
contradicts the concept of a consumer boycott. Hence I
find that, despite the language on the picket signs,
Respondents on this occasion were engaging in conduct
entangling neutral employers in a primary dispute
between Respondents and Pralle by the picketing. But the
oral appeal to Arcaris is not found to be a violation of
Section 8(b)(4)(i)(B) of the Act because it was not pleaded
as such and I denied a motion to amend the complaint to
include it. However, this appeal has been considered on
the issue of the object of the picketing at North Side; it
demonstrates that at least an object was more than a mere
request to consumers not to buy Pralle's milk. Similar
considerations apply to the requests addressed to Arcaris,
an employee of Silvercup Bakers, as he sought to make a
delivery at North Side Grocery.
Kosciolek, the owner of North Side, was informed by a
picket there that the picketing would cease if Kosciolek
bought his milk from another dairy. 'I find this language
does not constitute a violation of 8(b)(4), because it is
consistent with the aims of a consumer boycott and does
not contradict or vary the goal exprssed on the picket
signs. See Tree Fruits case, 377 U.S. 58, 72; N.L.R.B. v.
National Maritime Union, 367 F.2d 171 (C.A. 8).
f. At Spotlite Foods
Respondents patrolled this retail establishment located
in Chicago Heights, Illinois, with placards requesting the
public not to buy Oak Ridge milk I find that this is
picketing and is lawful, as the language used depicts a
genuine consumer boycott. Nor did any agent or officer of
Respondents say or do anything which qualified or
undermined the message of the sign directed solely to the
consumer. Accordingly, I find that no violation of Section
8(b)(4) took place at Spotlite.
As recited above, I have found that some of the conduct
of Respondents at secondary sites amounted to
inducement and encouragement of individuals
comprehended by Section 8(b)(4), and that such conduct
did not embrace a primary strike or primary picketing.
Further, I now find that an object of such conduct is to
force or require the secondary employers at whose
premises it occurred to cease selling the products of Oak
Ridge Dairy and to cease doing business with John Pralle.
The secondary employers so affected are Stone Meat,
Road Chief, Jim's Sinclair, Cotton Foods, and North Side
Grocery. It is of no defensive import that such conduct
also may have had a lawful object, such as a consumer
boycott or public information, because it is sufficient to
sustain a violation of 8(b)(4)(i)(B) that an object of
proscribed inducement and encouragement is to force or
require secondary persons to cease handling a primary
person's products or to cease doing business with a
primary person. N.L.R.B. v Denver Building and
Construction Trades Council, et al., 341 U.S. 675, 689.
It is not necessary to narrate all the incidents indicating
a proscribed object. In this connection it is sufficient to
mention, and I find, that Christiano and Turner asked the
MILK WAGON DRIVERS UNION, LOCAL 753
owners of the secondary establishments mentioned in
paragraph 2(d) of the amended complaint not to buy Oak
Ridge milk upon pain of being picketed; and the letter
distributed to secondary stores (Resp. Exh. 7) conveys a
similar message. I do not mean to intimate-and I
expressly do not find-that establishing a proscribed
object without more constitutes a violation of Section
8(b)(4)(i)(B) or that the above conduct described in this
paragraph is illegal. In fact I find that the letter is lawful
because requests to secondary employers are lawful
(Korber Hats, 124 NLRB 604, 612), and that Christiano and
Turner could lawfully threaten to engage in handbilling
and picketing because a threat to resort to a lawful act is
lawful. N.L.R.B. v. Servette, Inc., 377 U.S. 46, 57; Korber
Hats, 124 NLRB 604, 612. But I do find that the above
conduct discloses an object commended by Section
8(b)(4)(i)(B), and that such object is one of the elements
embraced by a violation of that Section of the Act.
Associated Wholesale Grocery of Dallas, 118 NLRB 1251,
1252-53.
Since I have found above all the elements of the unfair
labor practice described in Section 8(b)(4)(i)(B), I find that
this section has been violated by Respondents.
2. As to Section 8(b)(4)(ii)(B)
Respondent Local 753 contends that the amended
complaint charges only one event, as set forth in
paragraph 10, contravening this division of the Act. Said
paragraph 10 alludes solely to conduct of Respondents at
Road Chief Service Station, Crete, Illinois. But I construe
the complaint as encompassing all activities alleged in
paragraphs 7, 8, and 10, thereof as violations of said
Section 8(b)(4)(ii)(B). This interpretation emerges from the
fact that the complaint expressly avers that the acts
described in paragraphs 7, 8, and 10 constitute unfair labor
practices within the meaning of Section 8(b)(4)(i) and (ii)(B)
of the Act; and said paragraphs 7, 8, and 10 include all
conduct of Respondents at issue other than paragraph 9.
Further, I construe paragraph 10 of the conplaint as doing
no more than specifying one particular incident which
contravenes Section 8(b)(4)(ii)(B) of the Act.
In order to establish an unfair labor practice under this
section of the Act the General Counsel, upon whom rests
the burden of proof, must show that a labor organization
has threatened, coerced, or restrained secondary persons
where an object thereof is to force or require such persons
to cease handling the products of another person or to
cease doing business with any other person. All of these
ingredients must co-exist; if one or more is lacking this
part of the complaint must collapse as a matter of law.
In evaluating the record in connection with the
8(b)(4)(i)(B) aspect of the complaint, I have found that
Respondents are labor organizations, that their dispute
with Pralle and Oak Ridge is primary, that the six stores
mentioned in paragraph 2(d) of the amended complaint are
secondary, and that an object of Respondents' conduct is
to force or require said six stores to cease handling Oak
Ridge milk and to cease doing business with Pralle. I
adopt those findings on the 8(b)(4)(ii)(B) branch of the case.
The remaining question then is whether Respondents have
threatened, coerced, or restrained one or more of said six
retail stores. I proceed to analyze the record on that issue.
Initially, I find that the General Counsel has failed to
show by a fair preponderance of the evidence that
Christiano on or about July 8, 1965, threatened to cut off
the gasoline delivered to Road Chief if Road Chief
911
continued to buy Oak Ridge milk from John Pralle. In this
connection I have found that Stilts, Road Chief's manager,
failed to identify the stranger who made the above threat
to him. Although it is true that Stilts described this
stranger in his testimony of June 7, it is significant that the
General Counsel, in his investigation of the case, make no
effort to connect a name with this stranger . The time to
have established this connection-if it could have been
accomplished-is prior to the issuance of a complaint, and
not at the hearing. For a complaint should not issue unless
facts in the General Counsel's possession discloses a
prima facie case.
If a complaint issues before all crucial facts have been
ascertained, then a hearing in a complaint case is being
used in part for discovery purposes. But discovery is not
one of the functions of such hearings. It is true that the
General Counsel had to obtain judicial enforcement of his
subpena against Christiano, after which an attempt was
made to show that Christiano's features matched the
description of the stranger. But this should have been
done before the complaint issued. It is patent that Stilts
did not know who spoke to him when Stilts first testified,
and that Stilts did not know the man's name even after he
saw that man in the hearing room in August, and that no
effort was made between June and August 1966, to identify
that man before he appeared at the hearing room. Hence I
have found that the evidence is insufficient to attribute to
Christiano the incident in question. It follows and I find
that the evidence falls short of establishing the allegations
of paragraph 10 of the amended complaint; and I shall
recommend that said paragraph be dismissed.
Further, I find that Respondents orally and by letter
(Resp. Exh. 7) requested owners of secondary stores not to
buy Pralle's milk. These appeals are not prohibited by the
Act, and I so find. Korber Hats, 124 NLRB 604, 612;
Lohman Sales, 132 NLRB 901, 904. And, since I have
found that it is lawful to engage in a consumer boycott (by
handbilling as well as by picketing conforming to the
legislative design), I further find that threatening to picket
secondary establishments with proper signs and distribute
lawful handbills there does not threaten, coerce, or
restrain as those words are used in Section 8(b)(4)(ii)(B).
Korber Hats, supra, at 612; Stephens Co., 133 NLRB 1393,
1394. See N.L.R.B. v. Servette, Inc., 377 U.S. 46, 57.
Also, I find that the oral request to Raby's son at Jim's
Sinclair does not contravene 8(b)(4)(i)(B), as I find that the
son was not asked to refuse to perform services for his
father. In any event I find that the son is not an
"individual" employed by his father, as I find that the
son's interests are more nearly related to and closely
aligned with those of his father. Minneapolis House
Furnishing Company, 132 NLRB 40, 42-43.
Nor do I find any threat, restraint, or coercion in the oral
inducement and encouragement by Respondents of
employees of suppliers of Stone Meat not to cross the
picket line at Stone Meat. As set forth above, I have found
that Respondents asked Rich, an employee of Rainbow
Bake Company, and also an unnamed employee of Swift &
Company, to honor or observe the picket line of
Respondents at Stone Meat and that such conduct
contravenes Section 8(b)(4)(i)(B). Yet these requests do not
amount to a threat, restraint, or coercion of Stone Meat,
and I so find.
On the evidence unfolded at the hearing patently Stone
Meat was unaware of this action of Respondents. Since
Stone Meat had no knowledge thereof, it cannot be said
that Stone was put in reasonable apprehension of any
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consequences to its business operations . For no one is
threatened , restrained, or coerced by any action unless he
knows about it or somehow becomes cognizant of it;
otherwise he cannot react to it. Lohman Sales Company,
132 NLRB 901, 904, supports, if it does not dictate, this
result , although the oral appeals there were made to
employees of the secondary stores rather than to em-
ployees of suppliers of such stores.
Assuming that Raby 's son at Jim 's Sinclair Station is an
employee or individual under Section 8(b)(4), and
additionally assuming that the request made to him by
Respondents constitutes inducement and encouragement,
no violation of Section 8(b)(4)(ii)(B) is disclosed. This
aspect of the case is controlled by Lohman Sales
Company, 132 NLRB 901, 904, where the Board
specifically held that such oral remarks addressed to
secondary individuals or employees , although prohibited
by Section 8(b)(4)(i)(B), do not constitute coercion or
restraint of their employers under Section 8(b)(4)(ii)(B).
However, I have found the younger Raby not to be an
individual employed by his father. Minneapolis House
Furnishing Company, 132 NLRB 40, 42-43. Thus I find no
restraint or coercion in any event.
Further, I find that the picketing of the secondary
employers other than at Spotlite Foods amounts to
restraint and coercion within the meaning of Section
8(b)(4)(ii)(B) of the Act. Initially it is desirable to reiterate
that I have found unobjectionable the text of the picket
banners and to emphasize that the picket signs per se are
colorless to fasten a statutory violation upon Respondents.
But such picketing may not be considered in vacuo; it
must be weighed along with other acts by Respondents to
ascertain whether words otherwise innocuous have been
overcome by such acts.
When so assessed, I am of the opinion, and find, that
Respondents ' totality of conduct is not congruous with the
avowed purpose of conducting a consumer boycott. This
activity not harmonious with a consumer boycott or
informational publicity has been described elsewhere in
findings narrated above concerning the 8(b)(4)(i)(B)
segment of the case . Since the picketing has been found to
be improper by reason of conduct inconsistent with its
text , I find that the picketing has lost its immunity under
the proviso to 8(b )(4) for the purposes of determining
whether it is repugnant to Section 8(b)(4)(ii)(B) of the Act.
Finally, I find the statements made to the owners of
Jim's Sinclair and Cotton Foods constitute restraint and
coercion because they rise above mere normal appeals to
discontinue the sale of Pralle's milk.
As I have found the picketing under the circumstances
and the oral restraint and coercion of owners exceed
permissible limits, I further find that they constitute
restraint and coercion of secondary employers or persons
except Spotlite Foods. This result flows from the principle
that unprotected picketing of secondary persons or
employers violates Section 8(b)(4)(ii)(B). Kisner & Sons,
131 NLRB 1196, 1201; Gilmore Construction, 127 NLRB
541, 545, footnote 6; N.L.R.B. v. Building Service
Employees, 367 F.2d 227 (C.A. 10). See N.L.R.B. v. Fruit &
Vegetable Packers & Warehousemen, Local 760, et al., 377
U.S. 58, 70, 72, where the Court remarks that "in such
case, the union does more than merely follow the struck
product ; it creates a separate dispute with the secondary
employer" and "shuts off all trades with the secondary
employer unless he aids the union in its dispute with the
primary employer."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondents found to constitute
unfair labor practices, set forth in section III, above,
occurring in connection with the operations of John Pralle
as described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondents have violated Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that they
cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the
Act. Since Respondents have confined their conduct to
stigmatizing Pralle, only proscribed secondary conduct in
furtherance of their dispute with Pralle should be en-
joined. Stated differently, it does not appear that Respond-
ents have engaged in a forbidden secondary boycott
against all primary employers , but, rather, solely against
Pralle. Accordingly, I shall recommend that Respondents
be ordered to cease and desist from any secondary boy-
cott , as defined in Section 8(b)(4)(i) and (ii )(B), against
Pralle. As the record does not warrant a finding that Re-
spondents are likely to engage in a secondary boycott
against other primary employers, I shall not recommend
the addition of the words "or any other person" after the
word "Pralle" in that part of the order identifying the
primary employer. Boston Gas Company, 131 NLRB 1299,
1305.
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. John Pralle is a person engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondents Local 753 and Local 754 are labor
organizations within the meaning of Section 2(5) of the Act.
3. By (a) inducing and encouraging an employee of
Rainbow Bake Company and Swift & Company to refuse
in the course of their employment to perform services for
their respective employers, and by (b) picketing Road
Chief, Stone Market, Jim's Sinclair Station, North Side
Grocery, and Cotton Foods, in both cases with an object of
forcing or requiring the persons named above, to cease
doing business with John Pralle, Respondents have
engaged in unfair labor practices as defined in Section
8(b)(4)(i)(B) of the Act.
4. By engaging in the picketing described in 3b, above,
and by demanding that secondary persons cease selling
Pralle's milk, thus threatening, coercing, or restraining the
secondary persons so affected, with an object of forcing or
requiring such persons to cease doing business with John
Pralle, Respondents have engaged in unfair labor
practices comprehended by Section 8(b)(4)(ii)(B) of the
Act
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondents have not committed any other unfair
labor practice as alleged in the complaint.
MILK WAGON DRIVERS UNION, LOCAL 753 913
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Board issue an order that
Respondents Local 753 and Local 754, and each of them,
and their respective officers, agents, and representatives,
shall:
1. Cease and desist from-
(a) Inducing or encouraging, by picketing or other
means, individuals employed by Rainbow Bake Company,
Swift & Company, Stone Market, Road Chief, Jim's
Sinclair Station, North Side Grocery, Cotton Foods, or any
other person other than Oak Ridge Dairy or John Pralle, to
refuse in the course of their employment to perform
services for their respective employers.
(b) Threatening, coercing, or restraining any person
other than John Pralle or Oak Ridge Dairy, where in either
case an object thereof is to force or require any person to
cease doing business with John Pralle.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at the business offices and meeting halls of
Local 753 and Local 754 copies of the applicable attached
notices marked "Appendixes A and B."2 Applicable
copies of said notices, to be furnished by the Regional
Director for Region 13, after being duly signed by an
authorized representative of each Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to ^ members are customarily posted.
Reasonable steps shall be taken by each Respondent to
insure that its notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Decision, what
steps each Respondent has taken to comply herewith.-'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not found herein.
2 If this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words
"the Recommended Order of a Trial Examiner " in the notices If
the Board's Order is enforced by a decree of a United States
Court of Appeals, the notices shall be further amended by
substituting the words , "a Decree of the United States Court of
Appeals Enforcing an Order," for the words , "a Decision and
Order."
3 In the event this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing, within 10 days from the date of this
Order , what steps each Respondent has taken to comply
herewith "
APPENDIX A
NOTICE TO ALL MEMBERS OF MILK WAGON DRIVERS
UNION, LOCAL 753, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage any individuals
employed by Rainbow Bake Company, Swift &
Company, Road Chief Service Station, Jim's Sinclair
Station, North Side Grocery, Cotton Foods Shop,
Stone Meat Packing, Inc., or of any other person other
than those employed by Oak Ridge Dairy and John
Pralle, to engage in a refusal in the course of their
employment to perform any services, where an object
thereof is to force or require any person other than
Oak Ridge Dairy to cease doing business with John
Pralle.
WE WILL NOT threaten, coerce, or restrain Road
Chief Service Station, Jim's Sinclair Station, North
Side Grocery, Cotton Food Shop, Stone Meat
Packing, Inc., or any other person other than Oak
Ridge Dairy and John Pralle, where an object thereof
is to force or require any person other than Oak Ridge
Dairy to cease doing business with John Pralle.
MILK WAGON DRIVERS
UNION, LOCAL 753,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
complaince with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South
Dearborn Street, Chicago, III. 60604, Telephone 353-7597.
APPENDIX B
NOTICE TO ALL MEMBERS OF DAIRY EMPLOYEES UNION,
LOCAL 754, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage any individuals
employed by Rainbow Bake Company, Swift &
Company, Road Chief Service Station, Jim's Sinclair
Station, North Side Grocery, Cotton Foods Shop,
Stone Meat Packing, Inc., or of any other person
other than those employed by Oak Ridge Dairy and
John Pralle, to engage in a refusal in the course of
their employment to perform any services, where an
object thereof is to force or require any person other
than Oak Ridge Dairy to cease doing business with
John Pralle.
WE WILL NOT threaten , coerce, or restrain Road
Chief Service Station, Jim's Sinclair Station, North
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Side Grocery, Cotton Foods Shop, Stone Meat
Packing, Inc , or any other person othet than Oak
Ridge Dairy and John Pralle, where an object thereof
is to force or require any person other than Oak Ridge
Dairy to cease doing business with John Pralle.
DAIRY EMPLOYEES UNION.
LOCAL 754, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced.
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U S.
Courthouse and Federal Office Building, 219 S. Dearborn
Street, Chicago, Ill. 60604, Telephone 353-7597.
Westinghouse Electric Corporation and Oil,
Chemical and Atomic Workers Interna-
tional Union, AFL-CIO, Petitioner. Case
15-RC-3477.
April 6, 1967
DECISION AND DIRECTIONS OF ELECTIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act. as amended, a
hearing was held before Hearing Officer R. Kelly
Baird. The hearing officer's rulings made at the
hearing are free from prejudicial error and are
hereby affirmed. The Employer, Petitioner, and the
Intervenors have filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer, Westinghouse Electric
Corporation, is engaged in commerce within the
meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. It is undisputed, and we find, that Petitioner,
Oil, Chemical and Atomic Workers International
Union, AFL-CIO, and Intervenors: Building & Con-
' Homer Knost is a well-established Louisiana corporation
engaged in heavy industrial contracting and maintenance work It
has operated this business for 10 years in the New Orleans area
struction Trades Council of Greater New Orleans;
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the
United States and Canada, AFL-CIO, Local Union
No. 60; Construction & General Laborers' Local
Union 689; and New Orleans Carpenters District
Council, AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
3. A question affecting commerce exists
concerning the representation of certain employees
of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
4. Union Carbide Corporation recently con-
structed a petrochemical facility at Taft, Louisiana.
The facility is a highly technical, automated, and
computerized operation and was in part designed
and built by the Westinghouse Electric Corporation.
To assure the proper performance of this facility,
Union Carbide entered into a 3-year contract with
Westinghouse on or about May 1, 1966, by which the
latter undertook to provide whatever maintenance
was required by this facility. In June 1966,
Westinghouse began hiring maintenance employees
to perform the needed services. In the first week of
August, Westinghouse solicited bids from
companies for the subcontracting of their
maintenance work. On August 18, a subcontract was
awarded to the Homer Knost Construction
Company' for the maintenance work. Westinghouse
agreed to reimburse Homer Knost for certain
obligations incurred, including the cost of labor
provided, plus a subcontractor fee of 4.6 percent of
the payroll costs.
Soon after entering into this agreement with
Homer Knost, Westinghouse informed the
employees it had already hired to perform
maintenance work that their work had been
subcontracted but that they would be given an
opportunity to work for Homer Knost if they wished.
Most of these maintenance mechanics thereafter
accepted work from Homer Knost.
The maintenance work at the Taft facility is
initiated each day on orders submitted to
Westinghouse by Union Carbide. Westinghouse
employees, who are specialists in such fields as
computerization and production flow systems,
analyze the work orders, determine material
requirements, and plan and schedule the work to be
done. These specialists then meet with foremen of
Homer Knost and inform them of the work that
maintenance employees will be required to perform.
The Petitioner seeks to represent all
Westinghouse employees at the Union Carbide
facility at Taft, Louisiana. It contends that such a
unit would consist of shipping attendants,
instrument systems analysts, and maintenance
employees. While the maintenance employees are
For the past 6 years, it has been performing a maintenance
agreement for the Borden Chemical Company in Geismar,
Louisiana
163 NLRB No. 121