Teamsters, Chauffeurs & Helpers Union, Local 279

National Labor Relations Board - Board Decisions

Dec 18, 1962

140 N.L.R.B. 164 (N.L.R.B. 1962)

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to organize, to form, join, or assist a labor
organization, to bargain collectively through a bargaining agent chosen by them-
selves, to engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any such activities.
WE WILL offer Merlene Deweese, Mary Whitten, Lona Fay Craig, and Bobby
Louis McGriff their former or substantially equivalent jobs, without prejudice
to seniority or other employment rights and privileges, and pay each of them
for any loss suffered because of our discrimination against them.
BYRDs MANUFACTURING CORP.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Seventh
Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No.
Jackson 7-5451, if they have any question concerning this notice or compliance
with its provisions.
Teamsters, Chauffeurs & Helpers Union, Local 279 (William S.
Wilson d/b/a Wilson Teaming Company) and Elizabeth Love.
Case No. 13-CC-273. December 18, 1962
DECISION AND ORDER
On January 24, 1962, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in unfair labor practices and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Intermediate Report. Thereafter, the General Coun-
sel filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent with
the Decision and Order herein.
Contrary to the conclusion of the Trial Examiner, we find that
Teamsters, Chauffeurs & Helpers Union, Local 279, hereinafter called
Respondent, violated Section 8(b) (4) (i) and (ii) (B) by inducing in-
dividuals employed by Cole Distributing Company, hereinafter called
Cole, and by Morehouse and Wells, hereinafter called Morehouse, Lu
engage in a strike, and by threatening Cole and Morehouse, with an
140 NLRB No. 12.
TEAMSTERS, CHAUFFEURS & HELPERS UNION, LOCAL 279 165
abject of forcing Cole and Morehouse to cease doing business with
Wilson Teaming Company, hereinafter called Wilson.
1. On September 11, 1961, Guy Clapper, business agent for Re-
spondent, visited Cole and had a conversation with two Cole employ-
ees, both members of Respondent. The conversation took place in
the presence of Mary Tulak, an office employee. The Trial Examiner
specifically credited her testimony to the effect that Clapper told the
two Cole employees that, in the event of a picket line, they could be
taken off the trucks if they loaded or unloaded Wilson trucks.
Clapper, who testified that he had been summoned by the two men
who were concerned that they were being "put in the middle" and
that he simply told them not to "let them put you in the middle,"
was, inferentially discredited by the Trial Examiner. Mary Tulak
also testified, on both direct and cross-examination, that in this same
conversation Clapper told the two Cole employees that if Wilson
and Cole got "smart," he "could place a picket around Mr. Cole, every-
where he went to deliver the beer." 1
On September 12,1961, Clapper again visited the Cole premises. At
about 2 :30 p.m., Clapper had a conversation with Herman Cole, presi-
dent of Cole, who testified that Clapper told him that if he allowed
Wilson to haul Cole's beer, Clapper (i.e., the Respondent) would
picket Cole's place of business and Cole's beer delivery trucks every-
where they went. Clapper testified that he told Cole that if Cole em-
ployees refused to cross the picket line and Cole replaced them with
nonunion people, the 1 espondeiit would consider that it had a dispute
with Cole and would therefore picket Cole everywhere Cole made
deliveries. Altlhougli Cole, when cross-examined, denied that he mis-
understood Clapper and specifically denied Clapper's version of the
conversation as expressed by counsel, the Trial Examiner found that
Cole, although truthful, misunderstood Clapper and credited Clap-
per's version of the conversation. We disagree with this conclusion
of the Trial Examiner. Although the Board will not overrule a
Trial Examiner's credibility resolution when it is based upon the
demeanor of the witnesses,' we do not find this to be such a case. Not
only is the discredited witness found to be "truthful," but the credited
witness was inferentially discredited as to his abbreviated account of
the events of September 11, at which time lie told Cole's employees
substantially the same thing Cole testified was told to him. Accord-
ingly, as Cole's version of the conversation, which he steadfastly
'.Mary Tulak also testified on cross-examination that Clapper told the two Cole em-
ployees that:
if Rose City was to load the beer up or they was to unload empties or some-
thing , then he said if they got smart well he would show them and D1r Cole that he
would place a picket around every place the boys went to deliver the beer
(Rose City was the party from whom Wilson inherited the dispute with Respondent;
Respondent used the names "Rose City" and "Wilson " interchangeably.)
Standard Dry Wall Products , Inc, 91 NLRB 544
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied he misunderstood, relates a threatened course of action entirely
consistent with that related by a credited witness, Mary Tulak, we
credit Cole.
About 3 p.m. that same day, September 12, a Wilson truck arrived
at the Cole premises. Respondent commenced picketing in the im-
mediate vicinity of the Wilson truck with signs which identified Wil-
son as the primary employer with whom the Respondent had a dispute.
Nevertheless, the two Cole employees with whom Clapper had spoken
the day before helped Wilson and a Wilson employee unload the truck
for some 20 minutes. Clapper walked past the truck and pointed out
the picket line to the Cole employees who, thereupon, ceased working
on the truck.
The totality of the business agent's conduct on September 11 and 12
convinces us that, until advised otherwise by counsel,' the intent of
the Respondent was to induce the employees of a secondary employer,
Cole, to engage in a strike and to coerce the secondary employer him-
self, with an object of forcing him to cease doing business with a pri-
mary employer with whom the Respondent then had a dispute. When
Clapper, the business agent, pointed out the picket line on Septem-
ber 12 to the two Cole employees, who obviously saw it and had been
crossing it for 20 minutes, he was, in effect, reminding them of what
he had told them the day before, that if Wilson (the primary) and
Cole (the secondary) got "smart," he could picket Cole all over town.
On the basis of all the evidence we conclude that Clapper threatened
Cole and the Cole employees with a classic secondary boycott if Cole
did business with Wilson. Accordingly, we find that Respondent, by
the acts committed by its agent, Clapper, violated Section 8(b) (4) (i)
and (ii) (B) of the Act at the Cole site on September 11 and 12, 1961.
2. At 6:30 a.m. on September 20, 1961, Wilson brought his trailer
to the premises of Morehouse and then departed, leaving the trailer
to be unloaded by the Morehouse employees. Sometime between 7 :30
and 8 a.m. the pickets and the Morehouse employees, who are mem-
bers of Respondent, arrived. The pickets commenced picketing in
the vicinity of the trailer with signs which identified Wilson as the dis-
putant although no Wilson employees were present. For about 2
hours the Morehouse employees unloaded the trailer. At 10 a.m. their
foreman, who had been told to use his own discretion in the matter by
the president of Morehouse, directed the employees to stop unloading
the trailer. Wilson was informed of the situation at 1 p.m. and there-
after dispatched his own employees to the Morehouse site to finish un-
loading the trailer.
s Sometime during the next 24 hours Respondent consulted counsel and thereupon
directed the two Cole employees to load or unload Wilson trucks . The Respondent, how-
ever, did not inform Cole that it withdrew any threat against his doing business with
Wilson.
TEAMSTERS , CHAUFFEURS & HELPERS UNION, LOCAL 279 167
Under the circumstances which occurred herein, we disagree with the
conclusion of the Trial Examiner that this situation is comparable to
the coffee break absences of the primary employees in International
Brotherhood of Electrical Workers, Local Union 861, et al. (Plauche
Electric) Inc.) 4 The record reveals that it was the practice of Wilson
to leave his trailer at Morehouse for the Morehouse employees to un-
load.' Thus, When Wilson left his trailer at Morehouse and departed,
his work was completed until the time came to haul the empty trailer
away. Bearing in mind the Moore Dry Dock criteria,' we find that
Wilson was not engaged in his normal business at the Morehouse site.
Therefore, we find that it was not Wilson's work which was being
picketed, but Morehouse's.
Under these circumstances, we find that the Respondent picketed a
secondary employer, Morehouse, in order to induce its employees to
strike and by such picketing also threatened the secondary employer
with an object to force the secondary employer to cease doing business
with another employer with whom the Respondent had a dispute.'
By such conduct the Respondent violated Section 8 (b) (4) (i) and (ii)
(B) of the Act.'
3. In addition to the incidents described above, the record shows that
the Respondent picketed Wilson at a number of other sites. At the
time of such picketing Wilson was engaged in his normal business at
the secondary premises; the picketing was limited to places reasonably
close to the location of the Wilson trailer; and the picketing clearly
disclosed that the dispute was with Wilson. In these circumstances,
Chairman McCulloch and Member Fanning, applying the principles
of the Moore Dry Dock case, perceive no basis for an unfair labor prac-
tice finding as to these incidents.' Accordingly, the complaint shall
* 135 NLRB 250 . The Board also does not adopt that portion of the Intermediate
Report insofar as it may imply that the Board in Plaaiche Electric found that some of the
picketing was away from the situs of the dispute but was nevetherless lawful
5 Wilson , testifying concerning the Morehouse incident , stated, "I dropped the trailer
in there at 6:30 a in in the morning, which we usually done "
®92 NLRB 547, 549 Condition (2) requires that the primary employer be engaged in
his normal business at the situs.
4 The General Counsel excepted to the finding of the Trial Examiner that the foreman
was vested with managerial authority and therefore could not be an "individual " within
the meaning of (i). We find it unnecessary to decide whether, in fact, the foreman was
vested with such managerial authority since the men who work for him are "individuals"
who could be, and were , induced within the meaning of (1) and the president of Morehouse
is an "employer engaged in commerce " who could be, and was , threatened within the
meaning of (ii).
8 Chairman McCulloch believes that the Moore Dry Dock criteria are not necessarily
the sole touchstone to determine the existence of a proscribed secondary objective in situa-
tions of this kind. However , he deems it unnecessary for purpose of this case to explore
that issue and concurs in the finding here made Since the Respondent could have picketed
and did picket Wilson at his fixed place of business , Member Rodgers would find Respond-
ent's picketing also unlawful under Washington Coca Cola Bottling Works, Inc ., 107 NLRB
299. See the dissenting opinion in Plauche Electric, supra.
° Chairman McCulloch concurs in this conclusion for the reason that, in addition to the
Moore Dry Dock ground relied upon by Member Fanning, the record shows that Wilson's
"fixed place of business" was located on premises shared by Rose City and another com-
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be dismissed insofar as it relates to picketing and events other than
that conduct which occurred at Cole on September 11 and 12,1961, and
at Morehouse on September 20,1961.10
THE REMEDY
Having found that Respondent violated the Act with respect to
conduct involved in the Cole and Morehouse incidents, we shall order
it to cease and desist from such and similar conduct, and to post
appropriate notices.
ORDER
Upon the entire record in this 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, Teamsters,
Chauffeurs & Helpers Union, Local 279, its officers, agents, representa-
tives, successors, and assigns, shall :
1. Cease and desist from inducing or encouraging the employees
of Cole Distributing Company and Morehouse and Wells or any other
employer or person engaged in commerce or an industry affecting
commerce, to engage in a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or to per-
form any services for their respective employers, and from threaten-
ing and coercing Cole Distributing Company and Morehouse and
Wells or any other employer or person engaged in commerce or an
industry affecting commerce, where an object in either case is to force
or require any employer or person to cease doing business with Wil-
son Teaming Company.
2. Take the following affirmative action which we find will effectuate
the policies of the Act :
(a) Post at the respective business office of Teamsters, Chauffeurs
& Helpers Union, Local 279, copies of the attached notice marked
"Appendix A." 11 Copies of said notice, to be furnished by the Re-
gional Director for the Thirteenth Region, shall, after being duly
signed by an official representative of the Respondent, be posted by
Local 279 immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including
pany ; that the premises abutted on a State highway and consisted of a parking area, a
garage and tool shop which are used by these companies , and a small office ; that, so far
as appears , there was no overt sign indicating that Wilson occupied these premises, at
least during the period here relevant ; and, finally, that Wilson's drivers reported to these
premises only four to six times a week to pick up equipment and a like number of times
to return equipment . In the Chairman's view, these are highly relevant circumstances in
determining the latitude to be given the picketing of Wilson's operations elsewhere. Com-
pare Plauche Electric, supra.
10 Member Rodgers would have found these incidents also constituted secondary activity
violative of the Act. See footnote 8, supra.
11 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
TEAMSTERS, CHAUFFEURS & HELPERS UNION, LOCAL 279 169
all places where notices to members of Respondent are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
such notices are not altered, defaced, or covered by any other material.
The Respondent shall also sign copies of the notice which the said
Regional Director shall make available for posting at premises where
employees of Wilson Teaming Company, Cole Distributing Company,
and Morehouse and Wells are employed.
(b) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken in
compliance herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent has violated the Act
otherwise than herein found.
APPENDIX A
NOTICE TO ALL MEMBERS OF TEAMSTERS, CHAUFFEURS & HELPERS
UNION, LOCAL 279, AND TO ALL EMPLOYEES OF WILSON TEAMING
COMPANY, COLE DISTRIBUTING COMPANY, AND MOREHOUSE AND
WELLS
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 the employees of Cole Dis-
tributing Company, Morehouse and Wells, or any other employee
or person engaged in commerce or in an industry affecting com-
merce, to engage in a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or to
perform any services for their respective employers, or threaten-
ing or coercing Cole Distributing Company, Morehouse and
Wells, or any other employer or person engaged in commerce or
in an industry affecting commerce, where an object in either
case is to force or require any employer or person to cease doing
business with Wilson Teaming Company.
TEAMSTERS, CHAUFFEURS & HELPERS UNION, LOCAL 279,
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.
Employees may communicate directly with the Regional Office,
Midland Building, 176 West Adams Street, Chicago 3, Illinois, Tele-
phone No. Central 6-9660, if they have any question concerning this
notice or compliance with its provisions.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on September 13, 1961, by one Elizabeth Love, the Regional
Director for the Thirteenth Region of the National Labor Relations Board, herein
called the Board, on October 26, 1961, issued a complaint against Teamsters, Chauf-
feurs & Helpers Union, Local 279, herein called Respondent. The complaint alleges
the commission of unfair labor practices by Respondent in violation of Section 8(b)
(4) (i) and (ii) (B), and Section 2(6) and (7) of the National Labor Relations Act,
as amended (29 U.S.C. sec. 151, et seq ), herein called the Act Respondent, in
its answer, while it admits certain allegations of the complaint, denies that it has
engaged in any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Horace A. Ruckel
at Decatur, Illinois, on November 14 and 15, 1961. All parties were represented
at the hearing and were afforded full opportunity to be heard and to introduce
relevant evidence. Briefs have been filed by the General Counsel and Respondent.
Upon consideration of the entire record and the briefs, and upon my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FACTS
Wilson Teaming Company, herein called Wilson, an Illinois corporation, has its
principal office and place of business at Decatur, Illinois, where it has been engaged
at all times relevant to the issues herein in business as a common motor vehicle car-
rier of freight. During the calendar year previous to the issuance of the complaint
the Company performed services valued at $62,000, which were performed in States
of the United States other than the State of Illinois.
Morehouse and Wells Co. is an Illinois corporation with its principal office and
place of business at Decatur, Illinois, where it deals in hardware, electrical fixtures,
and appliances and other supplies. During the year prior to the issuance of the
complaint it purchased and delivered to its place of business at Decatur, Illinois,
goods and materials valued in excess of $50,000 from outside the State of Illinois.
Herman Cole, an individual, does business as Cole Distributing Company, a whole-
sale distributor of beer, and has his principal office and place of business at Decatur.
During the year prior to the issuance of the complaint Cole received gross revenue
from his business in excess of $150,000 and purchased goods and materials valued
at more than $6,000, which were shipped directly to his place of business in Decatur
from points outside the State of Illinois.
Gebhart Stores, Inc., a Delaware corporation, has its principal office and place
of business at Decatur, Illinois, where it is a retail distributor of automobile acces-
sories. During the calendar year previous to the issuance of the complaint, its gross
revenue was more than $2,000.000. During the same period it purchased goods and
materials valued in excess of $50,000 from points outside the State of Illinois, and
transported them to Decatur.
Jacob Melnick does business as Super Liquor Stores and has his principal office
and place of business at Decatur, Illinois. During the year prior to issuance of the
complaint his gross revenue exceeded $50,000. He purchased goods and materials
originating outside the State of Illinois of a value in excess of $50,000 which he
shipped to his store in Decatur.
Firestone Tire and Rubber Company, a Delaware corporation, is engaged in the
manufacture, sale, and distribution of automobile accessories. During the year pre-
vious to issuance of the complaint, it received at its Decatur retail store gross revenue
in excess of $300,000 and purchased goods and materials exceeding $50,000 in value
from points outside the State of Illinois and transported them to its store in Decatur.
Wilson, Morehouse, Cole, Gebbart, Melnick, and Firestone are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs & Helpers Union, Local 279, is a labor organization within
,the meaning of Section 2(5) of the Act.
TEAMSTERS, CHAUFFEURS & HELPERS UNION, LOCAL 279 171
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent had for some time a labor agreement with Rose City Express Com-
pany, in Decatur, Illinois This agreement expired on February 1, 1961. During
negotiations for a renewal a dispute arose between the parties. On May 15, 1961,
Wilson came into existence and executed an agreement with Rose City pursuant to
which Wilson agreed to perform pickup and delivery contracts which Rose City had
with its customers. For this purpose Wilson bought certain power tractors from
Rose City, but the trailers which Wilson hauled remained the property of Rose City
and bore its legend. This equipment was parked and maintained at the location
used by Rose City and another trucking company, at 2715 North Oakland Avenue.
These premises abut on a State highway and consist of a parking area, a garage and
tool shop which are used by the three companies, and a small office. In August 1961,
Wilson employed one mechanic and five drivers. He subsequently added an addi-
tional mechanic. Wilson's drivers regularly pick up and return their trucks to this
location. They report there from four to six times a week to take out their equip-
ment, and as many times to return it. The equipment consists of seven tractors and
two trailei s.
Respondent's labor dispute with Rose City arose from its discharge of two drivers,
and Wilson inherited this dispute. Respondent began picketing on August 22, 1961,
at the location above described, and maintained it 24 hours a day for 11 weeks. Two
of Wilson's employees participated in the picketing. The picket signs bore the
legend:
Rose City Express-Wilson
Teaming Company
No Contract, No Work
Teamster's Local 279
B. Acts of alleged inducement and encouragement
Following the establishment of the picket line at the Rose City-Wilson location
there occurred the events which form the subject matter of this case. On Septem-
ber 11, Guy Clapper, Respondent's business representative, called at the plant of
Cole Distributing Company. The testimony of Mary Tulak, an office employee,
called as a witness by the General Counsel, is that while she was talking to Arthur
Bradshaw and John Tulak, her father, both warehouse employees and members of
Respondent, Clapper arrived and engaged Tulak and Bradshaw in conversation. She
testified credibly, and I find, that Clapper told them that, in the event of a picket
line, if they loaded or unloaded Rose City-Wilson trucks they could be taken off
the trucks.
Clapper returned the following day and talked with Herman Cole, owner of the
Company. According to Cole, Clapper warned him that if Rose City-Wilson hauled
Cole's beer Respondent would picket his place of business as well as his delivery
trucks wherever they went Clapper's version is that he told Cole that Respondent
was picketing Rose City-Wilson trucks wherever they went, reminded Cole that Re-
spondent's contract provided that Cole's employees were not required to cross a
picket line, and said that if they voluntarily refused to do so and were consequently
replaced by new employees who were not members of Respondent, Respondent would
consider that it had a labor dispute with Cole and would picket his trucks. I found
Cole to be truthful, but find that he misunderstood Clapper. I credit Clapper's
version of this conversation.
About 3 p in. that afternoon, one of Wilson's trucks, driven by one of Wilson's
drivers, accompanied by Wilson himself, arrived at Cole's place to pick up a load of
empty beer bottles and kegs. A few minutes later a picket employed by Respondent
showed up and walked up and down in the immediate vicinity of the truck, carrying
the picket sign previously described. Tulak and Bradshaw, in spite of their admitted
knowledge that Wilson's truck was being picketed by Respondent, started to load it,
assisted by Wilson and his driver, and worked for several minutes when Clapper
arrived and spoke to them. The testimony of Wilson, who was working in the bed
of the trailer, is that Clapper, pointing in the direction of the truck, told Tulak and
Bradshaw that Respondent was picketing Wilson's truck and that they should not
"jeopardize" their union cards. Clapper testified that he only brought it to the
attention of the two employees that there was a picket line at Wilson's truck, and
denied that be made any reference to their union cards or that he ordered them
to quit work. The testimony of Tulak and Bradshaw supports that of Clapper. On
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this state of the record I do not find that Clapper made any reference to the union
cards of Tulak and Bradshaw. It is admitted, however, that Tulak and Bradshaw
did stop work when Clapper spoke to them, and I cannot accept Respondent's con-
tention that their action was entirely voluntary. The fact that they continued to
load the truck after arrival of the picket, but before the arrival of Clapper, and
stopped loading only after Clapper spoke to them, leads me to conclude, and I do,
that Clapper induced and encouraged them to do so.
The truck left one-third loaded. On that afternoon or the following day, Clapper
consulted Respondent's attorney, following which Clapper then instructed Tulak
and Bradshaw to load and unload Wilson's trucks in the future whenever they
appeared at the Cole premises. As a result, Wilson's truck returned to Cole's place
of business, and Tulak and Bradshaw, in accordance with Clapper's instructions
and together with Wilson and his driver, completed the loading of the empty bottles
and kegs which they had interrupted the day before. About 2 weeks later, when
Wilson made one other delivery at Cole's, Wilson's truck was picketed, but without
any cessation of work by Cole's employees and without any conversation between
them and the picket.
On the morning of September 20, I0,61, Wilson left a trailer at the place of
business of Morehouse and Wells to be unloaded by the latter's employees. Unload-
ing began about 7:30 a.m About 8 a.m. Respondent's pickets appeared. The un-
loading continued until about 10 a.m. William Teubner, warehouse foreman, asked
Robert Humphrey, president of Morehouse and Wells, what he should do about con-
tinuing with the unloading and Humphrey told him to use his own judgment.
Sometime later, Teubner exercised the discretion given him by Humphrey, ordered
the unloading stopped, and telephoned Wilson. Wilson arrived with his own men
about 1 p.m. and finished the job. There was no conversation between the pickets
or other representatives of Respondent and employees or supervisors of Morehouse
and Wells except that, according to Humphrey, two business agents of Respondent
came to his office that afternoon and apologized for picketing the truck.
Respondent also picketed Firestone, Gebhart, and Melnick, described in section I,
above, on one or two occasions when Wilson was making pickups and deliveries.
The picketing in each case was confined to the immediate vicinity of Wilson's truck,
and stopped when the truck left. There is no evidence in the record that picketing
at these places was accompanied by any conversation between agents of Respondent
and any other individual. The picket signs were identical in each instance, and
there was no interruption of work. The General Counsel in his brief concedes
that with the single exception of the picketing at Morehouse and Wells, picketing at
all locations was limited to times when either Wilson or his employees were present.
C. The issues
Section 8(b) of the Act, which the complaint asserts Respondent violated, makes
it an unfair labor practice for a labor organization or its agents, to:
(4) (i) engage in, or to induce or encourage any individual employed by any
person engaged in commerce . . . to engage in, a strike or a refusal in the
course of his employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials or commodities or to
perform any services; or (ii) to threaten, coerce, or restrain any person en-
gaged in commerce . . . where in either case an object thereof is
(B) forcing or requiring any person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person: .
Provided, That nothing contained in this clause (B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or primary picketing;
The following questions present themselves for resolution: (1) whether Clapper's
statements to two of Cole's employees on September 12, 1961, amounted to induce-
ment or encouragement within the meaning of 4(i) (B), above; (2) whether Clapper's
statements to Cole on September 11 were violative of either of the above subsections,
and (3) whether the picketing at the various places named in the complaint, includ-
ing Cole and Morehouse and wells, is per se violative of the Act, as constituting in-
ducement and encouragement.
CONCLUSIONS
As to ( 1) I find that Clapper's remarks to two of Cole's employees , which resulted
in their refusal to continue unloading a Wilson truck , constitute inducement and en-
TEAMSTERS, CHAUFFEURS & HELPERS UNION, LOCAL 279 173
couragement within the meaning of subsection 4(i), above. A finding of technical
violation of the Act might, hence, be justified. I am not, however, disposed to make
such a finding. This was an isolated instance, soon corrected on Respondent's
specific instructions, and not repeated.
As to (2), for Clapper's conversation with Cole himself to constitute a violation
of the Act, it would have to be found that the statements made by Clapper amounted
to more than inducement or encouragement; that is, they would have to amount to
a threat, coercion, or restraint in violation of (4) (ii), since Cole is the owner of
Cole Distributing Company and not an "individual" within the meaning of (4) (i),1
and they did not.
The same rationale is applicable to Teubner, Morehouse's foreman, who ordered
Morehouse and Wells' employees to stop work upon observing the pickets. I have
found that he was not induced or encouraged in this by the picketing. If it were to
be concluded that he was, this would still not be sufficient for a finding of a viola-
tion of the Act. Threats, coercion, or restraint would be necessary, since Teubner,
whatever his rank in the supervisory hierarchy, was told by Morehouse and Wells'
president, Humphrey, to use his own judgment. Humphrey thus vested managerial
authority in him He was not, for this purpose, an "individual" within the meaning
of the Act. I do not find that Clapper's statement to Cole that (under certain cir-
cumstances not present here) he might find himself in the situation of having a primary
dispute with him, and would in that event picket his equipment, was coercive.
The principal thrust of the briefs, however, is directed to the question of whether
there was an opportunity for effective picketing at the premises of Rose City-Wilson,
the situs of the primary dispute. The General Counsel contends that there was,
and relies principally upon the Washington Coca Cola and Campbell Coal Company
cases 2 Respondent argues that there was not, and relies principally upon the
Moore Dry Dock decision.3
In Moore Dry Dock, the Board held that when the situs of a labor dispute is
ambulatory, picketing of the premises of a secondary employer is lawful primary
picketing if the following conditions are met: (a) the picketing is strictly limited to
the times when the situs of the dispute is located on the secondary employer's
premises; (b) at the time of the picketing the primary employer is engaged in its nor-
mal 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.
In Washington Coca Cola, however, the Board, in effect, held the rule in Moore Dry
Dock inapplicable when the struck (primary) employer has a permanent place of
business at which picketing can be effectively carried on. In the Campbell case the
Board, following Washington Coca Cola, found a violation of the Act on the sole
ground that the primary employer had a permanent place of business which could
be effectively picketed. The court, in remanding the case to the Board for further
hearing,4 held that the existence of a common site and of another place which can be
picketed, "are factors to be considered in determining whether or not the section
has been violated, but alone are not conclusive." Upon a rehearing, the Board, in
a Supplemental Decision and Order 5 found other factors present, among them that
the picketing union at each secondary place it picketed, asked employees of the
secondary employer not to accept delivery of the primary employer's product, and
that in some instances these employees refused to work for the duration of the
picketing. The Board reaffirmed its finding of statutory violation.
The principal issue as it was formulated at the hearing in the instant case, was,
as has been stated, whether effective picketing was possible at the Oakland Avenue
premises of Rose City-Wilson. This is no longer an issue in the case. For, sub-
sequent to the hearing and the filing of briefs, the Board on January 15, 1962, released
its Decision and Order in International Brotherhood of Electrical Workers, Local
Union 861, et al. (Plauche Electric, Inc.), 135 NLRB 250, overruling Washington
Coca Cola and reaffirming the standards set forth in Moore Dry Dock. The Board
said:
1 See: Upholsterers Frame & Bedding Workers Twin City Local 61 (Minneapolis House
Furnishing Company), 132 NLRB 40, citing Carolina Lumber Company, 130 NLRB 1438.
'Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Washington
Coca Cola Bottling Works, Inc.), 107 NLRB 299; Sales Drivers, Helpers & Building
Construction Drivers Local Union 859, etc (Campbell Coal Company), 116 NLRB 1020.
' Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547.
4 229 F. 2d 514 (D C.D C.).
5 116 NLRB 1020.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall not automatically find unlawful all picketing at the site where the
employees of the primary employer spend practically their entire working day
simply because, as in this case, they may report for a few minutes at the begin-
ning and end of each day to the regular place of business of the primary
employer.
In overruling Washington Coca Cola we do not, of course, hold that the
place of picketing is irrelevant in determining the legality of the picketing. We
shall in the future, as we have with court approval in the past, consider the place
of picketing as one circumstance, among others, in determining an object of
the picketing. [Citing cases.]
In the instant case, we hold that the office of Plauche was not the sole
permissable situs for the publicization of the dispute relating to the performance
of electrical work by Plauche's employees at the premises of U.S. Tire. Ac-
cordingly, we reject the finding of the Trial Examiner that picketing at the U.S.
Tire premises was per se unlawful.
Employees of neutrals as well as of the primary employee were working at
the U.S. Tire premises. Accordingly, the picketing to be lawful had to accord
with the Moore Dry Dock standards. These standards also are not to be applied
on an indiscriminate "per se" basis, but are to be regarded merely as aids in
determining the underlying question of statutory violation.
In view of this most recent decision of the Board, it remains only to determine
whether the standards of Moore Dry Dock, set forth above, are met here. It is
not disputed that the picketing at all the locations involved did accord with these
standards with one possible exception: As has been seen , Respondent picketed one of
Wilson's trucks at the premises of Morehouse and Wells for about 2 hours when
no employee of Wilson's was present. Moore Dry Dock states that in a mixed-situs
situation picketing of the premises of a secondary employer is primary if "(b) at
the time of the picketing the primary employer is engaged in its normal business
at the situs." I do not find that Wilson's normal business at the common situs came
to an end merely because, in this one instance, Wilson left his trailer to be unloaded
by the employees of Morehouse and Wells rather than, as was the usual practice, by
these employees and Wilson's employees, jointly.
The point which is raised here was raised in the Plauche case, cited above. There
the Board held that the absence of the primary employees from the picketed second-
ary premises during their lunch periods and coffee breaks did not amount to non-
conformity with the rule. There the primary employees at the secondary premises
were electricians who were working on an electric sign at a hotel. The pickets did
not restrict themselves to the vicinity of the electric sign , the situs of the dispute,
but patrolled over 400 feet of plant frontage, particularly that portion which was
the office and main entrance of the hotel and the driveway for employees of other
contractors working therein.
In the instant case, the picketing was confined to the immediate vicinity of the
trailer, which was conspiciously identified by a legend as the property of Rose City
and did not extend to the rest of the secondary employer's premises. The trailer
was the situs of the picketing, not the rest of the premises, from which the situs was
sharply distinguished. It was hence clear, even in the absence of any primary em-
ployee on the trailer that it was Rose City-Wilson which was being picketed, not
Morehouse and Wells.6 Accordingly, I find that the picketing at Morehouse and
Wells on this occasion, and under these circumstances, was in substantial conformity
with Moore Dry Dock standards.
For the reasons set forth above, I do not find a violation of Section 8(b) (4) (i)
or (ii)(B) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, it is recommended that the complaint be dis-
missed in its entirety.
6 See: Sterling Beverages, Inc., 90 NLRB 401 (citing Schultz Refrigerated Service, Inc.,
87 NLRB 502), where the Board, in finding violation of the Act, said: "The record in this
case discloses that pickets of the Respondent paraded in front of the secondary employer's
premises where Sterling's trucks were not physically present at Ruppert's plant, and
failed to establish that direct and immediate relationship between the picketing and the
object picketed necessary to a finding of purely primary picketing 11