Teamsters, Chauffeurs, Warehousemen and Helpers

National Labor Relations Board - Board Decisions

May 28, 1958

120 N.L.R.B. 1161 (N.L.R.B. 1958)

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1161
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec-
tion 9 (c) (1) and Section 2 (6) and (7) of the Act 4
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act:
All employees at the Employer's Philadelphia, Pennsylvania, plant,
excluding executives, office clericals, sales personnel, maintenance and
repair employees, firemen, engineers, print shop employees, elevator
employees, watchmen, foremen, foreladies, and all other supervisors
as defined in the Act .5
[Text of Direction of Election omitted from publication.]
4 Local 6-BW and BW contend that the former's contract, which will not expire until
December 31, 1958, is a bar. Local 6-AB contends that it is the successor to Local 6-BW
and that no election is necessary. In the alternative Local 6-AB asserts that a schism
exists in Local 6-BW removing the contract as a bar On December 9, 1957, the AFL-
CIO convention voted to expel BW effective December 12 The facts relating to the ex-
pulsion are set forth in The Great Atlantic and Pacific Tea Co , 120 NLRB 656.
On December 10, officials of Local 6-BW, an amalgamated local representing employees
of many employers in the Philadelphia area, called a special executive board meeting at
which it was voted unanimously, for reasons related to BW's expulsion from AFT CIO,
to disaffiliate from BW and to affiliate with the newly chartered American Bakery and
Confectionery Workers International Union, AFL-CIO. Shortly thereafter, a petition
was circulated and signed by about 3,300 of the approximately 4,000 membership whereby
the action of the executive board meeting was endorsed On December 17, BW appointed
a special trustee to administer the affairs of Local 6-llW. Among other things, the special
trustee instituted court proceedings to protect and obtain control of the assets of the
Local and notified employers under contract with Local 6-BW, including the Eni Toyer,
that he is ready, willing, and able to administer existing contracts. We find, upon the
basis of the foregoing, that Local 6-BW is not defunct and that Local 6-AB is not its
successor. However, for the reasons given in the A and P case, we find that a schism
has occurred in Local 6-BW removing the contract as a bar herein.
8 The unit was stipulated.
Teamsters, Chauffeurs , Warehousemen and Helpers Union, Local
386, and General Teamsters Union , Local 4311 and California
Association of Employers . Case No. 20-CC-135. May 28, 1958
DECISION AND ORDER
On September 17,1957, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, a copy of
which is attached hereto, finding that the Respondents had not en-
gaged in and were not engaging in unfair labor practices, and recom-
mending that the complaint be dismissed in its entirety. Thereafter,
the General Counsel and the Charging Party filed exceptions to the
Intermediate Report and supporting briefs.
1 The Board has been notified by the AFL-CIO that it deems the Teamsters ' certificate
of affiliation revoked by convention action. The identification of the two Respondent
Locals is amended accordingly.
120 NLRB No.161.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. 'The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings of fact,
except insofar as inconsistent with this decision. However; we find
merit in the exceptions of the General Counsel and the Charging
Party for the reasons hereinafter set forth.
A. Ambulatory picketing of Topper trucks
1. The facts
Respondent Local 431 was the contractual bargaining representa-
tive of the employees of Topper Feed Mills at its mill in Fresno,
California. When the contract expired and negotiations for a new
one were unsuccessful, a strike was called early in April 1957.
Local 431 picketed the Fresno plant, and Respondent Local 386
assigned some men to assist Local 431 at Fresno and, in addition,
picketed the Topper sales outlet at Modesto, California?
The Fresno plant was picketed from 8 a. m. to 5 p. m., but pickets
were at- the plant before and after those hours in connection with the
truck-following activities. When the strike began, pickets followed
all Topper trucks. After a few weeks, they followed only the bulk
trucks assigned to regular drivers, who generally proceed from Fresno
to Modesto, unload their trucks, then pick up feed at a supplier's
premises, and return to Fresno.
Topper's only source of supply for alfalfa, before the strike, was
Madera Milling Co., with plants at Madera and Kerman, California.
Topper obtained alfalfa from both plants, but chiefly from Madera,
where Topper trucks stopped almost every day, sometimes going
there directly-a distance of about 30 miles-but frequently stopping
first at Modesto. Union Agents Smith, Dick, and Fowler, who, in
that order, were in charge of the strike, told Jalonen, president of
Topper, during several conversations, that Topper suppliers would
be "sorry" if they continued to furnish feed to Topper, and named
some of these suppliers, including Madera.
During the strike, Fowler, accompanied by a representative of
another union and a striking Topper employee, followed a Topper
truck to Madera. They went to the office, and Fowler told Castle, a
Madera partner, about the Topper strike, and requested that Madera
cooperate by refusing to load Topper trucks, thereby cutting off
Topper's supplies. Castle stated that George Feehan, the area repre-
sentative of the California Association of Employers, handled labor
9 Topper's only mill is in Fresno , but it has sales outlets in Fresno , Modesto, and several
other cities in California . Local 386 did not represent any Topper employees , but it had
jurisdiction over the Modesto area while Local 431 had jurisdiction over the Fresno area.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1163
matters for Madera. After this conversation , these men drove to the
loading chute where the Topper truck was being loaded, talked with
the driver and his companion , and followed the truck when it left.
On Friday , May 31, Olander , an employee of Teamsters Joint
Council 38 assigned to assist in the Topper strike , arrived at the
Topper plant about 4 a. m. and waited until about 5 a. m., when he
and another man followed a Topper truck . The driver of this truck
went to Modesto , where Local 386 was picketing , and was there about
2 hours while the truck was unloaded . From Modesto, he went to
Madera . The pickets following the truck picketed at Madera, while
the truck was being loaded, with signs stating "Topper Feed Mills on
Strike , Teamsters Local 431 & 386 , AFL-CIO, Picket." S An office
employee called this picketing to the attention of Simonet , a Madera
partner , who went out to inquire about its purpose . Olander
reminded Simonet that "We asked you before not to load Topper's
trucks." 6
While this picketing was going on, the driver of a truck belonging
to a different employer , who came to deliver material to Madera, de-
parted, after talking with Olander , without making the delivery.
The picketing continued for about 11/2 hours , when the Topper truck
left and the pickets followed it.
At about 10 a. m. on Tuesday, June 4, pickets again arrived at
Madera , following a Topper truck, and picketed with the same signs
until about,11: 45 a. m.
2. Findings and conclusions
Topper had two permanent places of business, at Fresno and
Modesto, where the Respondents could, and did, publicize their dispute
and bring pressure on the drivers in question to support the strike.
Where a primary employer has a permanent place of business at
which a union can adequately publicize its labor dispute, the Board
holds that the fact that picketing is conducted at the premises of a
secondary employer plainly reveals that it was designed, at least in
part, to induce and encourage the employees of the secondary employer
to engage in a concerted refusal, in the course of their employment, to
handle goods for the primary employer, with an object of forcing
the secondary employer to discontinue doing business with the primary
employer, thereby violating Section 8 (b) (4) (A) of the Act.' Ac-
s The pickets assigned to follow trucks carried such signs in their cars , and had letters
which identified the bearer as "an authorized representative and/or picket representing
Local No. 431 and /or Local No . 386." At the time of the hearing herein , the Respondents
were still picketing Topper and following its trucks.
* Olander was not present when Fowler made this request of Castle.
c Washington Coca-Cola Bottlsng Works, Inc ., 107 NLRB 299 , enfd. 220 F. 2d 380
(C. A., D C.) ; Ready Mixed- Concrete Company, 116 NLRB 461; Barry Controls, Ina,
116 NLRB 1470,- enfd.- 250 F ! 2d 184 ( C. A. 1) ; Diaz Drayage Co., Inc., 117 NLRB 885,
enfd. per cursam 252 F. 2d 619 (C. A., D. C.).
1164 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
cordingly, we find, contrary to the Trial Examiner, that the Respond-
ents, by picketing at Madera as described above, have violated this
section of the Act.'
B. Picketing with organizational signs
1. The facts
As stated above, the ambulatory picketing at Madera ended at about
11: 45 a. m. on Tuesday, June 4. At noon on the same day, two
pickets began picketing each of the Madera plants with signs which
stated "Madera Milling Organizational, Teamsters Local No. 431,
AFL-CIO, Picket." This was the first action taken to organize
Madera employees. Yet Dick and Fowler, Local 431 representatives,
testified that they had been discussing for months the organization
of these employees. According to Fowler, Dick told him, in the fall
of 1956, that when Dick was organizing at another plant in Kerman,,
he was told that the Madera employees in Kerman were interested in
being organized. Fowler also stated that, late in February or early in
March 1957, Dick again told him that Madera employees were in-
terested in being organized and they ought to get out there, but, due
to occupation with the Topper strike and various organizing cam-
paigns, nothing was done about it. Again, later in March, Dick
told Fowler he had been receiving telephone calls from someone "at
Madera Milling that the boys were ready to go out there and wanted
us to come out and organize them."
On May 2, Young, an employee at Madera's Kerman plant, came to
Dick's office while Fowler was there, and said he tried to get in touch
with Dick a number of times but was unable to do so, "and that he
wanted to find out about us coming out to organize the Madera Mill-
ing." Dick and Fowler interrogated Young about whether "he felt
if they were really interested or whether they weren't." Young told
them the majority of employees "was ready to go ... that if we were
going to organize them, we should do something about it right away."
They obtained Young's signature on an application card, but gave
him no blank cards even though he said he "could sign up most of the
employees." After he left, Dick and Fowler discussed Madera, "the
fact that it was a seasonal operation and that we would have to get on
it right away as soon as we could get squared away and find the time
to get down there and start organizing." In later discussions, Fowler,
Dick, and Smith decided, according to Fowler, "if we could shake
some time free that Tommy Dick and I would go ahead and work on
Madera Milling."
a In view of our finding that the secondary picketing here constituted a per se violation
of Section 8 (b) (4) (A ) of the Act, we find it unnecessary to comment or pass upon the
Trial Examiner 's analysis of the nature of the ambulatory picketing at Madera.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1165
After attending a convention in Sacramento where Cannon, the
union legislative representative, said trouble had arisen in the State
legislature over some pending bills, "especially one bill on organiza-
tional picket lines," Fowler, on about May 23, warned Dick, in regard
to organizing Madera, to be sure to check with Cannon "to find out
what position that we would be in, because if the place had organiza-
tional pickets on them, we would probably get in trouble with our own
people because of the legislative action out there in Sacramento."
On Sunday, June 2, Young, at Dick's request, came to a meeting with
Smith, Dick, and Fowler in a motel room set up primarily as Topper
strike headquarters. The union representatives told Young they
would try to begin organizing Madera "the following Monday if we
could get clearance to go ahead." After Young left, the others de-
cided to establish an organizational picket line at both Madera and
Kerman. This had not been discussed with Young.
Picketing with organizational signs did not begin until noon on
Tuesday, June 4. Sullivan, a Local 431 agent who had picketed
Topper from the first day of the strike until he was transferred to
picketing Madera, testified that he gave an organizational leaflet'
to an employee at noon on June 5, and asked him to arrange a meeting
to be held at noon the following day. Such a meeting, attended by
,6 or 7 employees, was held on June 6 on the street in front of the
mill. Sullivan spoke about Local 431, then said he would give the
employees a few days to think the matter over before he returned
with applications. On about Tuesday, June 7, applications were given
to Sullivan, who turned them over to someone else, and Young came
in and obtained some applications also. They were distributed at both
Madera and Kerman on about June 7. According to Dick, it was "the
following Sunday that the majority of them were returned to me."
2. Findings and- conclusions
The General Counsel and the Charging Party contend that the
picketing with organizational signs was actually a continuation of the
ambulatory picketing found above to be unlawful. We agree, in
view of (1) the precipitateness of the decision to organize Madera
after months of delay;, (2) the failure to make clear to all concerned
the changed purpose of the picketing; and (3) the applicable rules
of law.
As described above, although union agents were told repeatedly that
'Madera employees wanted to be organized, they did nothing about it
for months, not even when Young urged speed because of the seasonal
I This was a printed form containing no employer name, notifying employees that the
union had "established an Organizational Picket Line at your plant , to enlist your sup-
11port, and to invite you to become members of the Teamsters union. . . .
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature of the business. Even after the decision to engage in organiza-
tional picketing was reached-at Topper strike headquarters, by those
in charge of the Topper strike, and carried out by transferring some
Topper pickets-there were further delays in signing up members.
The only explanation offered for the original delay was that the
organizers were too occupied with other matters, chiefly the Topper
strike, but that strike, including the picketing and the following of
trucks, was still going on at the time of the organizational picketing.
There was no explanation as to (1) why picketing was necessary to
organize employees who had indicated a desire to be organized;
(2) why the decision to picket was not made until Young left a
meeting relating to such organization; nor (3) why organizational
picketing was no longer embarrassing to the union legislative repre-
sentative.
Furthermore, there was no hiatus, at Madera, between the ambula-
tory and the organizational picketing. Union agents had earlier
made statements to the Madera partners indicating that the purpose
of the ambulatory picketing was to cut off Topper's supplies. They
made no announcement to the partners that this objective in picketing
Madera had been abandoned. The inadequacy of changing the signs
to indicate a change in objective is shown by the fact, commented upon
in the Intermediate Report, that one of the Madera partners was not
aware that the name of Local 386, which appeared on the signs used
in the ambulatory picketing, did not appear on some of the later signs.
Nor is the literal language of the picket signs determinative of
whether the purpose of the picketing is lawful or unlawful.'
Accordingly, we find the rule of law that "a state of affairs once
shown to exist is presumed to continue to exist until the contrary is
shown" ° is here applicable. We further find that the evidence does
not rebut the presumed continuity of the original purpose to bring
pressure on Topper by picketing Madera, a purpose which was never
expressly disavowed. Moreover, even if the union agents had decided
suddenly that they could, "shake" sufficient time free from their
Topper activity to combine unlawful secondary picketing with lawful
organizational picketing at Madera, the Supreme Court has held it
sufficient to establish a violation under Section 8 (b) (4) if one of a
union's objects in inducing employees is "an object" proscribed under
that section of the Act.10 Under all the circumstances, therefore, we
8 Dallas General Drivers, etc ( Associated Wholesale Grocery o f Dallas, Inc ), 118
NLRB 1251; Local 50 , etc (Arnold Bakers , Inc ), 115 NLRB 1333. Although the Second
Circuit came to a contrary conclusion in the last-named case (N. L. R. B. v. Local $0, etc.,
245 F. 2d 542) we respectfully disagree
ON L. R. B v. National Motor Bearvng Company, 105 F. 2d 652, 660 (C. A. 9)
N. L. R B v. Piqua Munising Wood Products Co., 109 F. 2d 552, 554 ( C. A. 6) ; Local 50,
etc. (Arnold Bakers, Inc.), supra, at 1336.
'ON L. R. B. v Denver Bldg & Construction Trades Council, et at ( Gould & Preisner),
341 U. S. 675 , 688; International Brotherhood of Electrical Workers, Local 501 v.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1167
find that the picketing with organizational signs had the same unlaw-
ful objective, at least in part; as the original secondary picketing, and
that the signs were changed primarily in an attempt to make the
continued picketing at, Madera seem lawful."
C. Picketing with recognition signs
1. The facts
On Monday, June 10, Local 431 sent Madera the following telegram :
WE HAVE CHOSEN THIS MEANS OF NOTIFYING YOU
THAT WE REPRESENT A SUBSTANTIAL MAJORITY
OF YOUR EMPLOYEES I E MADERA MILLING COM-
PANY MADERA AND KERMAN PLANT WE ARE WILL-
ING TO SUBMIT PROOF OF.SUCH. AND HEREBY RE-
QUEST RECOGNITION AS THE COLLECTIVE BAR-
GAINING REPRESENTATIVES OF SAID EMPLOYEES
PLEASE REPLY TO THIS REQUEST BY 12 NOON JUNE
11 1957
W E BIGGERS THE TEAMSTER UNION
LOCAL 4311059 T ST FRESNO
Madera did not reply . Picketing of the two plants continued, but the
signs were changed, in the late afternoon of June 12 or the morning of
June 13, to read "Madera Milling unfair, refuse to bargain , Teamsters
Local 431 , AFL-CIO picket." On June 14 , Local 431 filed a petition
for representation of Madera employees . On June 19 , the complaint
herein issued . Picketing of the Madera plants ceased on June 20 or 26.
2. Findings and conclusions
The record establishes, in our opinion, that the picketing with recog-
nition signs had the same unlawful purpose as the preceding ambula-
tory and organizational picketing. As discussed above, the union
representatives failed for months to respond to requests for Madera
organization, and were dilatory in obtaining signed membership ap-
plications after the purported organizing campaign began. Against
this background, we find it incredible that the representation of these
employees suddenly became so urgent as to require a telegraphic re-
quest for recognition demanding a reply by noon of the next day, fol-
lowed, in 2 or 3 days, by a change in the picket signs to allege a refusal
to bargain. As we found in regard to the organizational picketing,
this sudden urgency is in sharp contrast with the preceding delays,
attributed by the union representatives chiefly to concentration on the
N. L R B. (Samuel Langer), 341 U. S. 694, 700 See also Gardeners, Exterminators, etc.
(Roberts & Associates ), 119 NLRB 962; Associated Wholesale Grocery of Dallas, Inc.,
supra.
"See Local 1016, etc. (Booher Lumber Co, Inc.), 117 NLRB 1739, 1749.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Topper strike, which was still in effect. We are satisfied that these
circumstances indicate that the union representatives continued to be
primarily concerned with the Topper strike, were seeking to imple-
ment it by picketing Madera under various pretexts, and their desire
to obtain recognition at this time, even if genuine, was subsidiary to
their desire to cause Madera to cut off Topper supplies.
There are other indications that recognition was not the real goal
here. For example, although union agents had driven the 30 miles to
Madera to request cooperation in the Topper strike, and again to en-
gage in ambulatory picketing, and had held conversations with both
Madera partners, they did not, when they were picketing there every
day, go into the office to request recognition or to establish their rep-
resentative status." Furthermore, as described above, at the time
Madera cooperation was requested, Castle explained that labor matters
were handled for Madera by the California Association of Employers,
and that the representative in that area was Feehan, but apparently
no request for recognition was made to Feehan or the Association.
In addition, various factors found above to show the unlawful pur-
pose of the organizational picketing pertain also to the recognition
picketing, including the continuous nature, beginning on June 4, of
the ambulatory, organizational, and recognition picketing; the failure
to declare a change in the objective of the picketing except to the.extent
-that the signs were changed; the presumed continuity of the original
unlawful purpose; and the rule that an 8 (b) (4) violation is estab-
-lished if the purpose is, in whole or in part, one proscribed by that
-section. On the basis of all the evidence, we are convinced that the
-union representatives sent the telegram, and changed the signs again,
in another attempt to mask the basic purpose of the continued picket-
ing at Madera," and, further, that the basic purpose of this final phase
of Madera picketing continued to be the inducement of Madera em-
ployees to engage in a work stoppage in order to cause Madera to
- cease doing business with Topper.
Accordingly, we find that the picketing at Madera, with the various
picket signs described above, induced or encouraged employees of
Madera to engage in a strike or concerted refusal in the course of their
employment to load trucks of Topper Feed Mills, the object thereof
being to force or require Madera to cease doing business with Topper,
in violation of Section 8 (b) (4) -(A) of the Act.
D. The responsibility of Local 386
When Local 431 became engaged in the dispute with Topper, Local
386 assisted, not only by picketing the Topper branch at Modesto,
12
The record does not establish how many employees there are at the two Madera plants,
nor how many of them signed application cards.
is Local 1016, etc. (Booher Lumber Co., Inc.), supra.
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1169
but also by assigning some of its men to assist Local 431 at Fresno.
These men picketed or engaged in other strike activity as directed by
Smith, Dick, and Fowler. The pickets assigned to follow Topper
trucks had letters identifying the bearer as "an authorized repre-
sentative and/or picket representing Local No. 431 and/or Local
No. 386." They also had picket signs in their cars, such as those used
in the ambulatory picketing at Madera, showing the picketing to be
by "Teamsters Local 431 & 386."
The signs used in the later picketing named only Local 431, and
the record does not show whether the Local 386 men assigned to assist
Local 431 participated in this picketing. The joint picketing of
Topper was still going on, however, and, so far as appears, Local 386
took no affirmative steps to indicate its withdrawal from the Madera
picketing. Moreover, we have found that the organizational and
recognition picketing were actually continuations of the ambulatory
picketing." Under these circumstances, we find both Respondents
equally liable for all phases of the picketing.15
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in con-
nection with the operations of Topper, described in the Intermediate
Report, 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 of
commerce.
THE REMEDY
Having found that the Respondents have violated Section 8 (b) (4)
(A) of the Act, we shalli,order them to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies
of the Act.
Upon the basis of the foregoing findings of fact and upon the
entire record in this case, the Board makes the following :
CONCLUSIONS OF LAw
1. General Teamsters Union, Local 431, and Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local 386, are labor organizations
within the meaning of Section 2 (5) of the Act. _
34 The Trial Examiner commented in his Report that if the disputes with Topper and
with Madera were found to be "intermingled and unlawful , both Local 431 and Local
386 would , in my opinion , be jointly and severally liable for the entire course of picketing "
Olander, who participated in the ambulatory picketing , was assigned to Local 431 by
Teamsters Joint Council 38, but, this organization is not named as a party Respondent.
15 Retail Fruit, etc. (Crystal Palace Market ), 116 NLRB 856, 862.
483142-59-vol. 120-75
1170 • DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
2. General Teamsters Union, Local 431, and Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local 386, and their agents, have
engaged in unfair labor practices within the meaning of Section 8 (b)
(4) (A) of the Act by inducing or encouraging employees of Madera
Milling Co. to engage in a strike or concerted refusal in the course
of their employment to load trucks of Topper Feed Mills, the object
thereof being to force or require Madera Milling Co. to cease furnish-
ing supplies to Topper Feed Mills and to cease doing business with
Topper Feed Mills.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
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 Respondents , General Team-
sters Union, Local 431, and Teamsters , Chauffeurs , Warehousemen
and Helpers Union, Local 386, and their officers, representatives, suc-
cessors, assigns , and agents , shall :
1. Cease and desist from :
(a) Inducing or encouraging employees of Madera Milling Co., or
any other employer , to engage in a strike or concerted refusal in the
course of -their employment to use, manufacture ,,,process, transport,
or otherwise handle or work on any goods, articles , materials , or com-
modities, or to perform any services for their employer, where an
object thereof is to force or require Madera Milling Co., or any other
employer, ( 1) to cease furnishing supplies to Topper Feed Mills or
( 2) to cease doing business with Topper Feed Mills.
2: Take the following affirmative action which the Board finds will
effectuate the policies of the Act : -
' (a) Post at the offices of General Teamsters Union, Local 431, and
of Teamsters , Chauffeurs , Warehousemen and Helpers Union, Local
386, and at all other places where notices to their members are cus-
tomarily posted, , copies of the notice attached hereto marked "Ap-
pendix A." 16 Copies of said notice , to be furnished by the Regional
Director for the Twentieth Region, shall , after being duly signed by
official representatives of the Respondents , be posted immediately upon
receipt thereof, and maintained for a period of sixty (60) consecutive
days thereafter, in conspicuous places, including all- places where
19 In the event that this Order is enforced by a decree of a United States Courrt• of Ap-
peals, 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 , WAREHOUSEMEN AND HELPERS 1171
notices to members are customarily posted. Reasonable steps shall be
taken by said Respondents to insure that said notices are not altered,
defaced, or covered by any other material ;
(b) Mail to the Regional Director for the Twentieth Region signed
copies of said notice for posting by Madera Milling Co., if willing,
in places where notices to its employees are customarily posted. -
(c) Notify the Regional Director for the Twentieth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondents have taken to comply herewith.
MEMBER FANNING, concurring in part and dissenting in part:
I concur in the majority's conclusion that Respondents' picketing
at the Madera plant on June 4, while trucks of Topper were present,
violated Section 8 (b) (4) (A). However, I do not adopt the major-
ity's rationale that such picketing is "a per se violation" of this
section of the Act solely on the ground that the primary employer
had a permanent place of business (30 miles away) where the union
could have publicized its dispute. As the Court of Appeals for the
District of Columbia has held, Sales Drivers Local Union 859, ,etc. V.
N. L. R. B. (Campbell Coal Co)., 229 F. 2d 514, the statute does not
contain so rigid a rule. In the instant case, as in Campbell Coal,
there are additional factors upon which the Board can rely in finding
that the Respondents exceeded their right to engage in primary
picketing. Thus, the record shows that union agents made their un-
lawful objective clear in stating that suppliers of Topper, including
Madera Milling, would be "sorry" if they continued to do business
with Topper. Prior to the picketing of June 4 the support of Madera
was requested by an agent of the Respondents. During the picketing
an official of Madera, questioning the pickets as to their object, was
told "We asked you before not to load Topper's trucks." Considering
all of the evidence, I am persuaded that the Respondents intended
their picketing, brief though it was, to have a substantial rather than
an incidental effect on the business of Madera. I therefore conclude
that by such picketing the Respondents violated Section 8 (b)
(4) (A). Truck Drivers and Helpers -Local Union No. 728 v.
N. L. R. B. (Campbell Coal Co.), 249 F. 2d 512 (C. A., D. C:) ; cert.
denied 355 U. S. 958. In reaching this conclusion I have taken into
consideration the Trial Examiner's view that knowledge of the picket-
ing should not be imputed to employees of Madera, even though the
plant is a small one. I am of the opinion, contrary to the Trial Exami-
ner, that the inference is proper and warranted. Picketing by its very
nature has an explosive impact on employees, whether or not they
favor unions. To hold that the Madera employees would be com-
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pletely ignorant of a picket line in front of their employer's premises
seems to me unrealistic. Indeed, the record shows that the picket
line, in fact, was observed by a clerical employee who thereupon
relayed the information to one of the Madera partners.
I am in agreement with the Trial Examiner that an unlawful ob-
jective cannot reasonably be inferred from Respondent's subsequent
organizational and recognition picketing of Madera. The record is
quite clear that the Respondent had embarked in good faith upon
the organization of Madera's employees and, in fact, had secured
majority status by June 10. On that date Madera was informed of
this fact by telegram in which the Respondent requested recognition
and bargaining. Madera did not reply. On June 14 the Respondent,
again indicating the bona fides of its objective, filed a petition with
the Board seeking representation of Madera's employees. These facts,
in my opinion, rebut whatever inference may be drawn from the fact
of Respondent's picketing at Madera premises while Topper trucks
were present. I cannot presume, as does the majority, that the Re-
spondent continued to harbor an unlawful objective despite the sub-
stantial evidence to the contrary. Accordingly, I dissent from so
much of the majority's decision as finds that the object of Respond-
ent's organizational and recognition picketing was to force Madera
to cease doing business with Topper.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF GENERAL TEAMSTERS UNION, LOCAL 431,
AND TO TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
UNION, LOCAL 386, AND TO EMPLOYEES OF MADERA MILLING CO.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT induce or encourage employees of Madera Milling
Co., or any other employer, to engage in a strike or concerted
refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods,
articles, materials or commodities, or to perform any services for
their employer, where an object thereof is to force or require
Madera Milling Co., or any other employer, (1) to cease
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS 1173
furnishing supplies to Topper Feed Mills or (b) to cease doing
business with Topper Feed Mills.
GENERAL TEAMSTERS UNION, No. 431,
Union.
Dated---------------- By-------------------------------------
(Representative )' ( Title)
TEAMSTERS , CHAUFFEURS , WAREHOUSE-
MEN AND HELPERS UNION, LOCAL
386,
Union.
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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard by the duly designated
Trial Examiner at San Francisco , California , July 3, 1957 , on complaint of the
General Counsel of the National Labor Relations Board , the latter hereinafter called
the Board , issued pursuant to a charge filed by California Association of Employers,
and answer of the Respondents . The complaint alleges in substance picketing of
secondary employers by the Respondents in violation of Section 8 (b) (4) (A) of
the Act . All parties waived oral argument and have filed briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
John F . Simonet and Charles P. Castle, a copartnership doing business under the
firm name and style of Madera Milling Co., herein called Madera , is engaged in the
processing and manufacturing of poultry and dairy feeds and alfalfa meal, with its
principal office and plant located at Madera, California , and another plant at
Kerman, California . During a representative period , Madera sold and shipped in
excess of $100,000 in value of its products from the Madera and Kerman plants to
points outside the State.
Topper Feed Mills, herein called Topper , is a California corporation. It is engaged
in the wholesale and retail sale of livestock and poultry feeds and farm supplies,
with its main office and principal place of business at Fresno , California. It has
retail feed stores in Fresno , Modesto, and other California cities. For the calendar
year 1956 it purchased in excess of $3,000 ,000 of live stock and poultry feeds and
farm supplies. Of these purchases , in excess of $500 ,000 in value were shipped
to it directly from points outside the State.
It is admitted and found that the Board has , and will, assert jurisdiction.
H. THE LABOR ORGANIZATIONS INVOLVED
Teamsters, Chauffeurs , Warehousemen and Helpers Union, Local 386 , AFL-CIO,
and General Teamsters Union , Local 431, AFL-CIO, called herein Respondents or
Local 386 and Local 431, respectively, are labor organizations within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES 0
A. Ambulatory picketing of Topper trucks
On or about April 6, 1957, Respondent Locals 386 and 431 , called a strike against
Topper Feed Mills of Fresno, California (hereinafter Topper) in furtherance of a
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor dispute with Topper. Topper's plant at Fresno and store at Modesto, Cali-
fornia, were picketed. There is no issue with respect to this picketing, admittedly
peaceful and primary in character.
Topper has some 12 truckdrivers who report daily at the Fresno operations of the
company where they take trucks out for the purpose of making delivery of Topper
products, or to various suppliers with whom Topper does business. Among the
latter is Madera Milling Co., hereinafter called Madera, which is engaged in the
manufacture of alfalfa feed at plants operated by it at Madera and Kerman,
California.
On May 31 and June 4, 1957, Respondents' pickets followed Topper trucks to
Madera premises in Madera and picketed at those premises from the time Topper
trucks entered until they left.' When Topper trucks left, the pickets left. The text
of the placards carried by the pickets read:
TOPPER FEED MILLS ON STRIKE
TEAMSTERS LOCALS 431 AND 386,
AFL-CIO PICKET
B. Madera picketing
On or about the afternoon of June 4, Respondents placed two pickets at Madera's
plants in Kerman and Madera, respectively. The placard carried by these pickets
read:
MADERA MILLING ORGANIZATIONAL,
TEAMSTERS LOCAL 431, AFL-CIO PICKET
On June 13 the text of the placards was changed to read:
MADERA MILLING UNFAIR, REFUSE TO BARGAIN,
TEAMSTERS LOCAL 431, AFL-CIO PICKET
C. Issues
1. The ambulatory picketing
The complaint alleges that the ambulatory picketing of Topper trucks on May 31
and June 4, and later picketing of Madera premises, induced and encouraged Madera
employees to engage in a strike or concerted refusal to perform services for Madera,
with an object of requiring Madera to cease doing business with Topper, in violation
of Section 8 (b) (4) (A) of the Act.
The Respondents while admitting the ambulatory picketing of Topper trucks deny
that it had as an object the causing of Madera, through concerted activities of Madera
employees, to cease doing business with Topper, and contend that the later picketing
of Madera premises was solely by Local 431; up to June 13 was solely for organ-
izational purposes; and thereafter solely in furtherance of Local 431's primary dispute
with Madera because of the latter's refusal to recognize and bargain with Local 431.
It may be argued that the ambulatory picketing of Topper trucks at Madera
premises was per se unlawful, but in my opinion it was unlawful only if it be found,
as a fact, that it induced and encouraged Madera employees to engage in a strike
or concerted refusal to perform services for Madera, with an object of causing Madera
to cease doing business with Topper,2 and I do not believe that this unlawful induce-
ment and encouragement can reasonably be inferred solely from the fact that on
two occasions Respondents' pickets followed Topper trucks to Madera premises and
there picketed while Topper trucks were on Madera premises.
' It appears that Topper trucks may have been followed to Madera premises as early
as April 10, or about 4 days after Respondents began picketing Topper, but there was no
picketing of Madera premises at that time nor at any time prior to May 31, and it is the
picketing that is alleged to have been unlawful.
2 As I understand the more recent decisions of the Board, the Board looks beyond the
,ambulatory picketing itself and takes into consideration the entire congeries of circum-
stances associated with it in deteimining whether it is violative of the Act. The Board's
rather meticulous examination of all circumstances attending the ambulatory picketing,
over and beyond the existence of a primary situs where picketing may be made effective
in furtherance of the primary dispute, would appear to be meaningless if its holding is
that ambulatory picketing is per se unlawful See, for instance, Babcock & Lee Petroleum
Transporters, Inc., 117 NLRB 1344; Diaz Drayage Company, 117 NLRB 885; The Cara-
dine Company, Inc., 116 NLRB 1559.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1175
The only situs of Respondents ' dispute with Topper in Madera was Topper 's trucks.
It is true that Topper maintained a regular place of business in Fresno , and that the
trucks the Respondents followed to Madera premises and there picketed , were loaded
at Topper 's Fresno plant and returned there upon completion of their respective trips.
It was therefore possible for the Respondents to advertise their dispute with Topper
to Topper 's employees , including the drivers of these trucks, by picketing restricted to
Topper premises. Their opportunity for bringing their propaganda to bear on the
drivers of these trucks at Topper premises was, however , limited . The drivers of the
picketed trucks were regular drivers for Topper . They checked in at Topper premises
in Fresno about 4 to 5 a. in., and spent some 15 to 30 minutes before leaving on their
respective trips for the day. They were away from the Fresno ' plant throughout the
day until evening when they reported back with their "manifest" or sales slips. They
were then at the plant some 15 minutes or more before going off duty. From the
foregoing it appears that Topper drivers crossed Respondents ' picket line at Topper
premises in Fresno twice in 24 hours, once early in the morning and again late in the
day. It appears that one or both of the picketed trucks stopped at the Modesto opera-
tion of Topper en route to Madera. Inasmuch as Respondents maintained pickets at
Modesto it is assumed that the Topper trucks in question were subjected to picketing
for the hour or two they were on Modesto premises . A substantially different situa-
tion existed in the Babcock & Lee case, footnote 2 supra, in which the union aban-
doned picketing at the premises of the primary employer for picketing at the premises
of secondary employers -where the opportunity to publicize its dispute with employees
of the primary employer was more limited . In the Caradine case, citation footnote 2,
supra, the Board remarked that the trucks subjected to ambulatory picketing were
manned by drivers who spent a "substantial part of their workday" on the premises
of the primary employer . Here , I think we may not reasonably infer, without more,
that Respondents ' ambulatory picketing of Topper trucks was for purposes other than
to bring pressure to bear on the drivers of those trucks. But there is more.
In further support of his position the General Counsel relies principally on these
factors: the testimony of Arne E . Jalonen , owner of Topper , that Respondents' agents
told him that suppliers of Topper , of whom Madera was one , would be sorry if they
continued doing business with Topper; Respondents ' solicitation of Madera , prior to
The ambulatory picketing of Topper trucks, to "cooperate " by ceasing to do business
with Topper ; the testimony of John F . Simonet , one of the owners of Madera, that
Virgil V. Olander , one of Respondents ' agents engaged in picketing Topper trucks at
Madera premises , told him , "We asked you before not to load Topper 's trucks"; and
the admission of Olander that while engaged in picketing a Topper truck at Madera
premises , the following exchange occurred , between him and the driver of 'a truck
bearing supplies intended for Madera:
And he said :. "I guess I'll haul it back to the barn then;' I said , "Well, that's
all right with me."
I credit Jalonen's testimony to the effect that in conferences with agents of Respond-
ents occurring in connection with Respondents ' dispute with Topper , Respondents
made the threat that suppliers of Topper , among them Madera , would be sorry if they
continued to supply Topper , and I find that Respondents ' agents solicited Madera's
"cooperation" in cutting off supplies to Topper . This latter incident occurred when
William Fowler , an organizer for Local 431, accompanied by a representative of the
Butcher's Union and a Topper employee on strike , called at the office of Charles P.
Castle, a partner of Madera, admittedly asked Castle if he knew there was a strike at
Topper's, and admittedly solicited Madera's cooperation . I also 'credit Simonet's
testimony that while a Topper truck was on Madera premises , Olander , one of those
picketing , said to Simonet, "We asked, you before not to load Topper 's trucks."
Finally, and of some significance , is Olander's admission that while picketing a Topper
truck at Madera premises, he acquiesced in the action of a truckdriver with supplies
intended for Madera , in turning back without unloading Madera supplies.
No one of these incidents is in itself conclusive of motive with respect to the
object of the picketing. The threat that Topper 's suppliers would be sorry if they
continued to supply Topper , does not require the inference that Respondents would
resort to unlawful measures to make these suppliers "sorry." And the Board does
not normally attribute controlling significance to statements made in the heat of
a labor dispute. Respondents ' solicitation of Madera's "cooperation" in- furtherance
of their labor dispute with Topper is of itself obviously harmless. Respondents
had a right to solicit the help of other employers and to induce them to "cooperate"
provided the methods pursued were not unlawful . The incident when Olander
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"approved" the refusal of a Madera supplier to pass the ambulatory picket line,3
occurred only after Olander had stated to the driver of the truck in question that it
was Topper that was being picketed-something which the picket sign plainly said .4
In the conversation with Castle, while Olander stated in response to Castle's queries,
"We asked you not to load Topper's trucks," he also told Castle that it was Topper's
trucks that were being picketed and that the pickets would leave as soon as Topper's
trucks left Madera premises. I think it may be inferred, without strain, that Olander
was not displeased when the Madera supplier refused to cross the picket line for
delivery to Madera and, from his statement to Castle, it certainly may be inferred
that the Respondents were not adverse to Madera feeling the pinch of their picketing
of Topper trucks. Assuming, however, that the picketing of Topper trucks had as
an object the application of pressure on Madera to cease supplying Topper, such an
object was violative of Section 8 (b) (4) (A) only if the means employed toward
its accomplishment constituted inducement and encouragement of Madera employees,
or employees of any employer other than Topper, to strike or engage in concerted
activities. The Act is very clear on the point.5
It was not shown, Respondents argue, that the picketing of Topper trucks at
Madera premises occurred in the presence of Madera employees, or at a place or
time or in such manner that it may reasonably be inferred that Madera employees
were induced or encouraged by it to do anything.
There is no showing that Respondents' pickets made any contact whatever with
Madera employees, or that any Madera employee crossed. or had any occasion to
cross the line picketing Topper trucks. Fowler testified, without contradiction, that
when he called on Castle at the latter's office at Madera, he did not see any Madera
employees because they were all inside the building or plant. On what basis are we
to infer that they were not "in the plant" on the two occasions when Topper trucks
were picketed at Madera premises for periods of less than two hours each? And
if they were indeed-in the plant during these periods, on what basis are we to infer
that they observed, or could observe, the picketing of Topper trucks? That these
pickets could be, and were observed from the Madera office by officials of Madera,
has no probative weight-of itself in grounding an inference that they were therefore
observed by Madera's rank-and-file employees in the plant. The Madera office is
not a part of the plant building, but is set apart from it. Presumably, when a Topper
truck drove onto the scales at the Madera plant some Madera employee was there
to verify its weight, and when a Topper truck was loaded with Madera produce,
presumably some Madera employee was there to load it. The picketing occurred
on public roads. As I understand the testimony, the first picketing occurred in the
vicinity of the scale house, some 100 yards from the loading chute; the second
occurred in the vicinity of the loading chute.6 But what Madera employees, or how
8 Cf. Diaz Drayage Co . ( footnote 2, supra), where the Board remarked that the picketing
union "made no effort to disabuse" employees of the secondary employer "of the notion
that the picketing was to encourage them to cease servicing" the primary employer's
trucks; and Caradine (footnote 2, supra), where customers of the primary employer were
directly appealed to, to refuse delivery of the primary employer's merchandise, and when
the customers complied pickets were withdrawn.
* The complaint alleges inducement of Madera employees solely, but the, evidence with
respect to inducement of an employee of an employer other than Madera or Topper is of
the nature of an admission, and is given the same weight that it would be given had it
been specifically pleaded.
5 Section 8 (b) : "It shall be an unfair labor practice for a labor organization or its
agents- ( 4) to engage in, or to induce or encourage the ,employees of any employer to
engage in , a strike or a concerted refusal in the course of their employment to" .. .
"where an object thereof is • (A) forcing or requiring any . . . employer or other per-
son . . . to cease doing business with any other person ." [Emphasis supplied ] It is
not conduct which has as an object the inducement and encouragement of employees which
is proscribed , but inducement and encouragement of employees which has as its object-
or one of its objects-the forcing or requiring of an employer or person to cease doing
business with any other employer or person . The point is labored because of what seems
at times a too easy assumption that once it is shown that picketing has as an object the
application of pressure on an innocent bystander , a violation of Section 8 (b) (4) (A) is
ipso facto proved. The application of this pressure is violative of thg Act only if exerted
through inducement and encouragement of employees to strike or engage in concerted
activities, etc. This is not to say, of course, that the inducement and encouragement
has to be successful . It is enough if it exists . But it has to ,exist, and whether it does
or not is a question of fact which can be established only by a predominance of evidence.
0 From the depiction of Madera premises in evidence as General Counsel's Exhibit No. 2,
it appears that the scales are located near one corner of Madera premises , adjacent to a
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1177
many, and of what classification, manned these operations-which for all we know
may have been mechanically operated-and whether while doing so they were in a
position to view the picketing, are at best speculative matters providing a somewhat
tenuous and risky grounding for a basic finding of fact. 'It may be argued that in
a relatively small plant such as the Madera operation, word gets around, and I
have no doubt it does, but I have seen no case in recent years where knowledge of
union activities was attributed to an employer because his plant was small and
"word gets around." In any event, by the time word got around among Madera
employees the ambulatory pickets would no longer be there, since they remained
only while Topper trucks were on Madera premises.
It may be argued further that it is not a necessary element in the General
Counsel's case to show that the picketing of Topper trucks was actually brought
to the attention of Madera employees, but if not how and in what manner, could
they be induced and encouraged to "engage in a strike or a concerted refusal" to
perform services for Madera? 7 and if they were not "induced and encouraged,"
there was no violation of Section 8 (b) (4) (A), regardless of what the Respondents
hoped to accomplish by their picketing. An intent to induce and encourage, or
having an inherent tendency to induce and encourage, are meaningless terms unless
there are "inducees" in the picture in sufficient numbers to engage in concerted
activities. Of course it would greatly simplify matters if we could just say: there
were persons employed at Madera's plant; Respondents for brief periods picketed
Topper trucks at Madera's plant; therefore Respondents encouraged and induced
Madera's employees, etc. It would simplify matters even more in reaching what
we, individually, may consider socially desirable objectives, not to require any
evidence at all beyond the picketing itself. But this would be legislation. Where
there is round-the-clock picketing or picketing at such hours that it may reasonably
be assumed that employees cross the picket line going to or from work, proof that
picketing was brought to 'their attention and therefore had its reasonable impact
on them might properly be regarded as superfluous, but we are not here confronted
with such a situation. And the fact that Madera was an innocent bystander in
Respondents' dispute with, Topper changes none of the surrounding facts. Obvi-
ously, it is the function of this Agency to protect innocent bystanders against boycott
only in the manner and to'the extent prescribed by the Act, and to apply the same
criteria with respect to the sufficiency of proof in this situation that it applies in
the case of any other alleged violation of the Act.
In summation, with respect to the ambulatory picketing phase of the case, on two
occasions Respondents' agents followed Topper trucks to Madera premises in
Madera where Topper had no place of business, and for the hour or two that the
Topper trucks were at Madera premises, picketed with two pickets bearing signs
which stated: TOPPER FEED MILLS ON STRIKE. Assuming that the Re-
spondents had as an object of the said' picketing the application of pressure to cause
Madera to cease doing business with Topper, there is no substantial evidence that
this pressure was viable as inducement or encouragement of Madera employees
within the meaning of the' Act. The one employee of whom it may be said (and
structure marked "office," but well removed from the mill building . To infer that the
first instance of the picketing of a Topper truck was observable by employees in the plant
would have no support whatever from the visual rendition of the Madera premises as
represented by this drawing. The bulk loading chute, however, appears to be located be-
tween a mill office and the plant proper, and close to the plant, and inasmuch as the sec-
ond incident of picketing occurred on the road fronting this chute, it may be thought
that this provides a sufficient basis for inferring that this picketing was observable to,
and observed by, some Madera employees . In the posture of the evidence in the matter
or, rather, the lack of it, I am unable to draw this inference.
7 Respondents argue that Madera employees being totally unorganized during the times
when ambulatory picketing occurred , it is not a reasonable inference that they would
have been induced and encouraged thereby to strike or engage in concerted activities for
the purpose of requiring Madera to cease doing business with Topper. I am perhaps
precluded from adopting this argument by the Board's refusal to accept-the court's
decision in N. L. R. B. v. Local 50, Bakery Workers, etc (Arnold Bakers, Inc) (C. A. 2) ;
Packard Knitwear, Inc., 118 NLRB 577. I believe it is proper, however, to'emphasize
the fact that not only were, Madera employees unorganized at the time in question, but
also that the picketing consumed at most no more than 4 hours, and that the placards
carried by the pickets made it clear that it was not Madera but Topper that was being
picketed. The presumption, under these circumstances, that Madera's employees were
induced and encouraged to strike against Madera is not one which I, independently, would
find it easy to indulge.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been said ) that he was induced and encouraged not to deliver supplies to
Madera, was not an employee of Madera and the incident with respect to him
finds its exact counterpart in the Rice Milling case . N. L. R. B . v. International
Rice Milling Co., 341 U. S. 665.
2. Madera picketing
As previously stated, Madera was picketed both at its Kerman and its Madera
plants on the afternoon of June 4. There had been no ambulatory picketing of
Topper trucks at the Kerman plant. A Topper truck had been picketed at the
Madera plant in the forenoon of the same day. Madera picketing, as contrasted
with the ambulatory picketing of Topper trucks, was continuous, and, as previously
stated, the sign used in Madera picketing stated: MADERA MILLING ORGAN-
IZATIONAL. Whereas the names of both Local 431 and Local 386 appeared on
placards carried by persons engaged in picketing Topper trucks, only Local 431
appeared on the Madera picketing placards.8 It was the credible testimony of
Respondents' witnesses, that although Local 386 lent its assistance to, and partici-
pated in Respondents' dispute with Topper, the jurisdiction of Local 386 did not
cover the area in which Madera plants were located, this area being within the
jurisdiction of Local 431 for organizational purposes. There is no probative evi-
dence that Local 386 participated in any way in the picketing of Madera plants.
On June 4 at the Madera plant, and on June 5 at the Kerman plant, circulars were
distributed by Local 431 to the employees, respectively, of those plants. The text
of the circulars follows:
ATTENTION EMPLOYEES
We have established an Organizational Picket Line at your plant, to enlist
your support, and we invite you to become members of the Teamsters Union,
in order to obtain Union benefits; for example:
Union Wages and Conditions, Health and Welfare Insurance, Pension Plan,
Time and one-half for overtime, paid Holidays, paid Vacations, etc.
For further information please contact TEAMSTERS LOCAL No. 431,
1059 "T" St., Fresno or Phone Adams 3-5141, Fresno.
Issued by: GENERAL TEAMSTERS UNION LOCAL NO. 431 AFL.
The issue here is whether Madera picketing was marked by a continuation of
Respondents' objective of bringing pressure to bear on Madera through their ambu-
latory picketing of Topper trucks, to cease doing business with Topper. Respondent
Local 431 contends that it had a legitimate organizational objective in its picketing
of Madera, and that this was its sole objective up to June 12 when the picket signs
were changed to read: MADERA MILLING, UNFAIR, REFUSE TO BARGAIN,
TEAMSTERS LOCAL 431, AFL-CIO, PICKET. This latter phase of the picket-
ing was preceded by the sending of a telegram on June 10, by Local 431, addressed
to Madera, stating that Local 431 represented a majority of Madera employees
and requesting recognition as their bargaining representative. Admittedly, Madera
did not reply to the telegram. On June 14, Local 431 filed a representation petition
with the Board.
Assuming that in picketing Topper trucks the Respondents had as an object the
application of pressure on Madera to cause Madera to cease doing business with
Topper, can we reasonably infer, without more, that the same objective existed in
the picketing of Madera premises? Some doubt is caused by the Board's refusal
to accept the court's reasoning in the Arnold Bakers, Inc. case, citation supra, but
in my opinion the present case is distinguishable. Prior to the afternoon of June 4
there had been no continuous picketing at Madera premises, but only 2 periods of
picketing of less than 2 hours each, and there had been no picketing at all at
Madera's Kerman plant. Therefore there was no overall continuous picketing
which would give rise to the appearance of a common objective. Also, not only
were the picket signs used in Madera picketing changed to announce unequivocally
a change in picketing objectives, but Local 386 was dropped from the picketing signs
altogether. It is true that no formal announcement of a change in objective was
made directly to Madera officials, but that hardly seems essential when no previous
demand had been made on them, and the change in picketing objectives was plainly
observable, and was observed by Madera officials. It is clear from Fowler's un-
8 Castle testified that the names of both locals appeared on these placards, but in this
he was mistaken. His partner, Simonet, as well as Respondents' agents Fowler and Dick,
testified that only the name of Local 431 appeared on these signs.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS 1179
disputed and credited testimony that there was no simultaneous picketing of Madera
and Topper trucks at Madera. Finally, the circulars distributed among Madera
employees at or near the commencement of picketing of Madera premises, made
no mention of the Topper dispute but contained a straightforward announcement
of organizational objectives. Assuming, arguendo, that Local 431 did have a bona
fide interest in organizing Madera employees, what more could reasonably have been
required of it in differentiating its objectives in Madera picketing from Respondents'
objectives in the ambulatory picketing of Topper trucks? In short, I do not believe
that this is a case where Madera picketing was presumptively unlawful because of
the prior picketing of Topper trucks.
It appears to me that the General Counsel relies to a considerable degree on just
such a presumption to prove the illegality of Local 431's Madera picketing, and
while I do not believe the presumption, as such, can stand, all of the circumstances
attending Respondents' picketing of Topper trucks are germane in considering the
issue presented by Madera picketing. In addition, it is urged that because Local 431,
though informed as early as May 2 by an employee of Madera that Madera em-
ployees were "eager" to sign up with the Union, made no effort to sign up those
employees prior to picketing Madera on June 4, and actually issued application
cards to Madera employees only after the charge in the instant case had been filed,
the so-called organizational picketing had as its real object the continued applica-
tion of pressure on Madera to cause the latter to cease doing business with Topper.
Obviously, Local 431 was not estopped because of its participation in the picketing
of Topper trucks, regardless of the object of that picketing, from organizing Madera
employees and from employing all legitimate means to that end. According to
undisputed testimony, Local 431 was informed as early as the fall of 1956 that
there were Madera employees interested in being organized, and again in February
or early March 1957, received calls from Madera employees with respect to or-
ganization. On May 2, Bill Young, an employee of Madera's Kerman plant, met
with officers of Local 431, expressed the opinion that a majority of Kerman em-
ployees were ready to sign up, and himself signed an application. Again on
June 2, Young met with representatives of Local 431, and expressed the view that
if the Respondent was ever going to organize Madera the time was ripe and that
any further delay would be too late in the season. It'appears that Madera's opera-
tion is seasonal in character .9 According to Respondent's witnesses, the decision
to picket Madera was made on June 2 after the meeting with Young. Admittedly,
nothing was said to Young at the time about picketing Madera premises.
Witnesses for Local 431 assigned various reasons for not proceeding earlier with
the organization of Madera employees, the principal one being that Local 431 was
engaged in other organizational campaigns and also was occupied by Respondents'
dispute with Topper. An additional reason advanced was that legislative proposals
were pending in the State legislature relative to organizational picketing, and that
picketing at Madera was delayed in order not to embarrass Respondents' legislative
representative. None of the testimony relative to these matters was disputed and
none of it is inherently incredible or even suspect.
It was also the undisputed testimony of Lloyd J. Sullivan, an organizer for Local
431, that on June 5 he arranged with a Madera employee to meet with other Madera
employees at noon on the following day; that the meeting was held with some 6 or 7
Madera employees in attendance; that Sullivan explained the Respondents' organi-
zational objectives, and informed Madera employees that he would give them a
couple of days to consider the matter and then would be back with application cards.
No mention of the dispute with Topper was made at that meeting, and no questions
asked concerning it. On June 7 application cards were distributed. The charge
in the instant case was filed on June 4 and served on Respondents June 6. If
Sullivan's testimony is believed, arrangements for passing out application cards
were made before those responsible for their distribution had knowledge that a
charge had been filed. There was nothing in Sullivan's demeanor, nor the circum-
stances giving rise to the distribution of the application cards, to cause the discredit-
ing of his undisputed testimony. Finally, bearing on Local 431's bona fides in
picketing -Madera for organizational purposes, the inescapable fact is that the or-
ganization actually took place and when Madera failed to respond to the Respond-
ent's request for recognition, Respondent Local 431 filed a representation petition
with the Board, a petition which, presumably, is now pending. This final action
not only supports the Respondent's claim of organizational objectives in its Madera
picketing but also its bona fides in demanding recognition as bargaining repre-
sentative of Madera employees. None of this however precludes the possibility
9 Fowler's testimony.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondents also had as an object of its Madera picketing , the causing or re-
quiring of Madera to cease doing business with Topper.
Absent a presumption of guilt arising from the ambulatory picketing , and the in-
cidents attending that picketing , we have then the delay in organizing Madera em-
ployees and the resort to picketing when , according to the General Counsel 's theory
,of the case , no picketing was required inasmuch as Local 431 had been informed by
a single employee of the Kerman plant , that a majority of Madera employees wanted
to be organized . As to the delay, it appears to me that the Respondent has given a
satisfactory explanation . We would certainly have to know more about the internal
affairs of this union than we do on the basis of this record , reasonably to draw adverse
inferences from the fact that it did not proceed immediately upon notice that Madera
employees were interested in being organized . And inasmuch as Madera operations
were seasonal , the timing of the organizational effort is consistent with bona fide
organizational aims . As to the picketing when , according to the General Counsel
no picketing was necessary to gain its organizational objectives , we can only speculate.
Is there some rule of thumb by which we can find , as a fact, that there is one particular
mode of organizing which is standard and traditional and that all others are suspect?
The picketing was accompanied by the distribution of circulars stating the Respond-
ents ' objectives and advertising to Madera employees the benefits of unionization.
Are we in position to say that this was not an effective and economical way to get and
focus the attention of Madera employees , or that Local 431 was required , in order to
avoid suspicion , to adopt some other method because it had been reported by a single
employee of the Kerman plant that Madera employees were ripe for organization?
I think that , except for the prior picketing of Topper trucks at Madera premises, no
question whatever would, or legitimately could have been raised concerning the law-
fulness of the Madera picketing, unless organizational picketing itself is unlawful,
and the General Counsel here makes no such contention . Perhaps the circumstances
and a combination of them, are sufficient to arouse a suspicion that the Respondents
may have had as an object in its Madera picketing the causing of Madera to cease
doing business with Topper, but suspicions and conjectures are not enough,ia and
even were we to presume an unlawful motive on the basis of the ambulatory picketing
of Topper trucks, unless such a presumption be irrebuttable, I would incline to the
opinion that it has been rebutted by the entire congeries of circumstances attending
the picketing of Madera by Local 431. If Respondents once raised the Topper dis-
pute with any employee or with management during the entire picketing of Madera
premises , there is no evidence of it . Viewing the General Counsel 's position in its
most favorable aspect , it appears to me that he has at best no more than balanced
interferences which must in all fairness be drawn in the Respondents ' favor, and
therefore has failed to show by a predominance of the probative evidence that
Respondents through the ambulatory picketing of Topper's trucks at Madera prem-
ises, and later picketing of Madera , induced and encouraged Madera's employees to
strike or engage in concerted activities , with an object of causing Madera to cease
doing business with Topper. Accordingly, I must recommend dismissal of the
complaint.ii
[Recommendations omitted from publication.]
10 For an illustration of the Board 's distinction between "bare conjecture " and "rea-
sonable inference ," see F W. Woolworth Co , 109 NLRB 196, at pp. 199, 201.
n Believing as I do that the labor dispute with Topper and the labor dispute with
Madera are separate and severable , I have indicated above , and find, that the Topper
dispute involved the Respondents but that the Madera dispute involved Local 431 solely.
On a contrary finding that the disputes were intermingled and unlawful , both Local 431
and Local 386 would , in my opinion , be jointly and severally liable for the entire course
of picketing.
WTVJ, Inc. and Local Union 349, International Brotherhood of
Electrical Workers, AFL-CIO. Case No. 1?-CA-31. May 28,
1958
DECISION AND ORDER
On July 17, 1957, Trial Examiner Albert P. Wheatley issued his
Intermediate Report in the above-entitled proceeding, finding that the
120 NLRB No. 155.