Teamsters, Local 616

National Labor Relations Board - Board Decisions

May 16, 1973

203 N.L.R.B. 645 (N.L.R.B. 1973)

TEAMSTERS, LOCAL 616 645
Packinghouse Employees and Warehousemen's Union,
Local 616, affiliated with the International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America and Southwest Forest Industries,
Inc. Case 21-CC-1428
Respondent Union does not deny having picketed South-
west Forest Industries, Inc., Los Angeles Container Divi-
sion , on or about October 25, 1972.
Upon the entire record I in this case, and from my obser-
vation of the testimony and demeanor of the witnesses, I
hereby make the following:
May 16, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On February 22, 1973, Administrative Law Judge
James T. Rasbury issued the attached Decision in this
proceeding. Thereafter, the Respondent Union filed
exceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that' Packinghouse Employees and Ware-
housemen's Union, Local 616, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Santa Fe
Springs, California, its officers, agents, and represent-
atives, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order.
DECISON
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard before me in Los Angeles, California, on January
3, 1973. The complaint issued by the General Counsel of the
National Labor Relations Board (herein Board) was based
on a charge filed on October 25, 1972. The complaint alleges
that the Respondent Union engaged in unfair labor practic-
es within the meaning of Section 8(b)(4)(i) and (ii)(B) of the
National Labor Relations Act, as amended (herein Act).
FINDINGS OF FACT AND CONCLUSIONS
I JURISDICTION
Southwest Forest Industries, Inc. (herein called South-
west), is an Arizona corporation engaged in business
throughout the United States in, among other things, the
manufacture and sale of lumber, plywood, paper, and mo-
bile homes. In the course and conduct of its business opera-
tions, Southwest annually sells and ships goods valued in
excess of $50,000 directly to customers located outside the
State in which said goods are produced. The Los Angeles
Container Divison of Southwest (herein called Container
Division) is engaged in the manufacture and sale of tailor-
made corrugated shipping containers and components at a
plant located in Santa Fe Springs, California.
General Nailing Machine Corporation (herein called
General), a California corporation, is now, and at all times
material herein has been, engaged at Sanger, California, in
the business of manufacturing and distributing specialized
containers for the shipment of produce and the manufac-
ture and distribution of box-making machines. General is a
wholly owned subsidiary corporation of Southwest. In the
course and conduct of its business operations, General an-
nually sells and ships goods valued in excess of $50,000
directly to customers located outside the State of California.
On the basis of these facts as set forth in the complaint
and not denied in Respondent's answer, I herewith find that
General and Southwest are, and each of them is, employers
engaged in commerce and in businesses affecting commerce
within the meaning of Section 2(6) and (7) of the Act and
persons engaged in commerce or in an industry affecting
commerce within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
II THE LABOR ORGANIZATION
The complaint alleges, and the answer does not deny, and
I herewith find that the Packinghouse Employees and
Warehousemen's Union, Local 616, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union
or Respondent Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Although the answer acknowledges the two employers to
be separate "persons" and "employers" within the meaning
'General Counsel 's motion to correct record at p. 85, 11. 18 and 19, by
substituting "72" for "70" in each instance is herewith granted.
203 NLRB No. 113
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, the allegation in the complaint that Southwest
and General are operated independently of each other as
separate autonomous enterprises and have separate, inde-
pendent labor relations policies and practices is denied by
Respondent Union. Affirmatively the Respondent's answer
alleges that at all material times it has been engaged in a
labor dispute with both General and Southwest and con-
tends the alleged wrongful picketing of Southwest was in
furtherance of said dispute.
The issue then to be resolved is: Are the common owner-
ship, the degree of actual control, and the interrelated busi-
ness activities between Southwest and General such as to
make Southwest an "ally" of the struck employer, General?
B. The Facts
There is little or no difference between the parties as to
the relevant and essential facts in this case. The real dispute,
as indicated by the phrasing of the issue, lies in the legal
conclusions to be drawn from these facts.
The Respondent was certified as the bargaining represen-
tative of the production and maintenance employees of
General pursuant to an election. The certification was is-
sued on November 4, 1971. Commencing in January or
February 1972,2 there have been approximately 18 bargain-
ing sessions held between the parties and bargaining is still
continuing. Jack Paxton and Sparky Arnold, of the Califor-
nia Association of Employers, have been the only partici-
pants from General. General has been a member of the
California Association of Employers for the past 20 years.
On July 24, Respondent Union begain picketing General's
premises in Sanger, California, and the picketing and strike
were continuing at the time of the hearing. On October 25,
Respondent commenced picketing the Los Angeles Con-
tainer Division of Southwest in Santa Fe Springs, Califor-
nia. The picket signs carried by the pickets on October 25
read as follows: "Southwest Forest Container Divison,
General Nailing Corporation, unfair Teamsters Local 616."
Picketing at Southwest continued until November 3, at
which time it was withdrawn by agreement of the parties,
and on November 13 a Section 10(1) injunction was issued
by the United States District Court prohibiting picketing by
Respondent of Southwest. The employees of the Container
Division of Southwest are represented by the Printing Spe-
cialities Union and Respondent stipulated at the hearing
that it had no other dispute with Southwest other than its
dispute with General at Sanger, California. The labor rela-
tions of the Container Division of Southwest are handled by
the vice president of the Container Divison, the plant man-
ager, and the personnel director of the division. These men
have access to Dave Brokaw, the parent corporate industrial
relations director, if needed.
General is a wholly owned subsidiary of Southwest.
Southwest acquired all of the stock of General from the
Paxton family in December 1970 in exchange for stock of
Southwest. Jack Paxton is president of General and stated
that, other than the submission of an annual operating bud-
get and monthly accounting reports to indicate to the parent
2 Hereinafter all dates will be in 1972 unless otherwise indicated.
company progress within the confines of the budget, Gener-
al is totally autonomous.
The board of directors for General is comprised of five
members, three of whom are officers of Southwest and two,
Jack Paxton and his father, from General. The officers of
General are all employees of General with the exception of
the corporate secretary, who is an attorney employed by
Southwest.
Since 1946, General has been a manufacturer of machin-
ery for high-speed assembly packers. About 10 to 12 years
ago, it started a container division in an effort to encourage
"the use of our machinery in the packaging field." In other
words, the machinery manufactured and sold assembled
containers.
In connection with its container business, General has
over the years purchased corrugated components or pack-
ages from the Los Angeles Container Divison of Southwest.
In 1970, sales of corrugated paper by Southwest Container
Divison to General represented approximately 5 percent of
its sales; in 1971, approximately 4-1/2 percent of sales; and
in 1972, between 3 and 4 percent. The purchase by General
of paper from Southwest represented approximately 75 per-
cent of paper purchases in 1970, 60 percent in 1971, and 45
percent in 1972. These transactions are the result of "arm's
length" bidding, and General is under no pressure to pur-
chase from Southwest or any of its other divisions or subsid-
iaries. General purchased paper from Southwest before it
was acquired by Southwest. General manufactured and sold
approximately 175 machines, selling for an average price of
$7,500 each, in 1972, but none of these machines was sold
to Southwest. General's largest single purchaser was Con-
tainer Corporation of America, a competitor of Southwest.
There is no interchange of personnel, although General
does have one employee named Lou Phillips, who was hired
as a corporate management trainee by Southwest, received
training in the Container Division of Southwest, and at the
request of Jack Paxton was then assigned to General. Phil-
lips is carried on the parent corporation's payroll, but is
entitled to share in the bonus pool-a sharing of corporate
profits if they exceed a specified level-of General. He is a
departmental or division manager of General and reports
directly to Jack Paxton, the president. He has not attended
or participated in the labor contract negotiating sessions
between General and Respondent. The Los Angeles Con-
tainer Division of Southwest and General have no common
facilities, have no common checking or banking account, do
not participate in joint purchases, and have no joint finan-
cial ventures. There is nothing in the record to indicate that
Southwest has in any manner guided, participated, in-
quired, or in any manner interfered with the labor relations
of General, including the current dispute and the efforts to
reach a labor agreement.
The facts show (Resp. Exhs. 1 and 2) that General has one
truck with the cab painted white and bearing the name on
the side, "Southwest Forest Industries-General Container
Divison-Sanger, Califronia." Paxton testified that the
truck was involved in an accident of some nature in 1971
that necessitated a repainting and Mr. Moorehouse-who,
at the time, was manager of General's Container Divison-
caused the cab to be painted in white with the particular
wording. For his action, Mr. Moorehouse was severely re-
TEAMSTERS, LOCAL 616 647
primanded. The other cab is painted blue with different
wording on the side.
It is undisputed that picketing by Roy Mendoza, an em-
ployee of the Western Teamsters Conference assigned to
assist Respondent Local 616, and other employees of Gen-
eral did occur at the premises of the Container Division of
Southwest between October 25, 1972, and November 3,
1972. The picketing was successful in preventing at least one
truck, owned by Wilson Paper Company, from crossing the
picket line.
C. Analysis and Conclusions
Under the "ally" doctrine a union may engage in picket-
ing at the operations of a primary employer and at all opera-
tions of employers who "ally" themselves with the primary
employer, under the same conditions as govern its picketing
at the primary employer's premises .3 The "ally" principle
has been applied where the relationship is based on the fact
that one employer is performing struck work for the primary
employer; 4 where the "ally" relationship derives from
"straight line operations" of two or more corporations;5 and
in cases where two or more corporations constitute a single
operation in fact 6 The doctrine is predicated on the thesis
that the statute is intended to only protect neutral employers
not involved in a dispute between a union and an employer.
Common ownership standing alone, however, does not
establish an "ally" relationship or destroy an employer's
neutrality. The Board has held with court approval that
separate corporate subsidiaries are separate persons, each
entitled to the protection of Section 8(b)(4)(B) from the
labor disputes of the other, if neither the subsidiaries nor the
parent exercises actual or active, as opposed to merely po-
tential, control over the day-to-day operations or labor rela-
tions of the other.7
The facts of this dispute as gleaned from the entire record
clearly establish that the control exercised by Southwest
over General is limited to certain financial reporting inher-
ent in common ownership and amounts to nothing more
than potential control. There is not a scintilla of evidence
that the Container Division of Southwest either exercised or
had a potential for exercising any control over General.
Under the Board's holding in the San Francisco Examiner
case,supra, and the Baltimore News case,8 an independently
3International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, and Local 179, et al (Alexander Warehouse &
Sales Company), 128 NLRB 916
4 Shopmen's Local Union No. 501 of the International Association of Bridge,
Structural and Ornamental Iron Workers, A FL-CIO (Oliver Whyte Company,
Inc.), 120 NLRB 856.
5 National Union of Maritime Cooks and Stewards, and its Portland Local,
CIO (Irwin-Lyons Lumber Company), 87 NLRB 54.
6 United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at
(J. G Roy & Sons Company), 118 NLRB 286.
Los Angeles Newspaper Guild, Local 69, et al (San Francisco Examiner,
Divison of the Hearst Corporation), 185 NLRB 303, enfd. 443 F.2d 1173 (C.A.
9, 1971), citing Miami Newspaper Printing Pressmen Local No. 46, a Subordi-
nate Local of International Printing Pressmen and Assistants' Union, AFL-CIO
(Knight Newspapers, Inc), 138 NLRB 1346, enfd. 322 F.2d 405 (C.A.D.C.,
1963); Drivers, Chauffeurs and Helpers Local No. 639, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Poole's
Warehousing, Inc.), 158 NLRB 1281.
9 American Federation of Television and Radio Artists Washington-Baltimore
operated division of a corporation is entitled to the protec-
tion afforded by Section 8(b)(4)(B) from another indepen-
dently operated division's labor disputes. This being true,
surely an independently operated, semi-autonomous divi-
son of a parent corporation is entitled to statutory protec-
tion from the labor disputes of a completely independent
and autonomously operated subsidiary of the same parent
corporation.
The lack of integrated or interrelated operations, the ab-
sence of a "straight line" operation, and the inability to find
any active control over either the day-to-day activities or the
labor relations policies of General by Southwest compel a
finding of "neutrality" on the part of Southwest. Being a
"neutral" employer, Southwest should be afforded all of the
protection provided by Section 8(b)(4)(i) and (ii)(B) of the
Act from another employer's labor dispute. Having found
Southwest to be a neutral employer it follows that the pick-
eting of the neutral employer by Respondent with whom it
had no dispute had as an object forcing or requiring South-
west to cease doing business with General and/or forcing
and requiring Southwest customers and suppliers to cease
doing business with Southwest and I so find. The objectives
of any picketing include a desire to influence others from
withholding from their employer their services or trade 9
and a union's object may be inferred from its acts.10
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The conduct of the Respondent described in Section III,
above,occurring in connection with the operation of the
employers described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
Upon the basis of the above findings and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. The Southwest Forest Industries, Inc., and General
Nailing Machine Corporation are employers and persons
engaged in commerce within the meaning of Sections 2(6)
and (7) and (8)(b)(4)(i) and (ii)(B) of the Act.
3. The Southwest Forest Industries, Inc., and General
Nailing Machine Corporation are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
4. By encouraging individuals employed by the Los An-
geles Container Division of Southwest Forest Industries,
Local, AFL-CIO (Baltimore News American Division, The Hearst Corpora-
tion), 185 NLRB 593.
9 Local 761, International Union of Electrical, Radio and Machine Workers,
AFL-CIO [General Electric Co.] v. N L R.B, 366 U S. 667 ( 1961).
10 New York Mailers' Union No 6, International Typographical Union, AFL-
CIO [N Y Herald Tribune, Inc., et all v. N.L R B., 316 F.2d 371 (C.A.D.C.,
1963)
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., to engage in a strike or a refusal in the course of their
employment to perform services, with an object of forcing
said person to cease doing business with its customers and
suppliers, and/or with General, the Respondent Union has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(4)(i)(B) and Section 2(6) and (7)
of the Act.
5. By threatening, coercing, and restraining Southwest
with an object of forcing said person to cease doing business
with General and with its customers and suppliers, the Re-
spondent Union has engaged in unfair labor practices with-
in the meaning of Section 8(b)(4)(ii)(B) and Section 2(6) and
(7) of the Act.
THE REMEDY
Having found the Respondent to have engaged in unfair
labor practices within the meaning of the Act, I shall recom-
mend that the Respondent cease and desist therefrom and
take appropriate affirmative action.
On the basis of the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER "
The Respondent Union, Packinghouse Employees and
Warehousemen's Union, Local 616, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Santa Fe Springs,
California, its officers, agents , and representatives shall:
1. Cease and desist from:
(a) Inducing or encouraging individuals employed by the
Southwest Forest Industries , Inc., or any other person en-
gaged in commerce, or an industry affecting commerce with
whom they have no primary labor dispute, to engage in a
strike or refusal in the course of their employment to per-
form services, where an object thereof is to force or require
said persons, and General Nailing Machine Corporation, to
cease doing business with each other or with their customers
and suppliers, under circumstances prohibited by Section
8(b)(4)(i)(B) of the Act.
(b) Threatening, restraining, or coercing the above-
named persons or any other persons engaged in commerce
or in an industry affecting commerce with whom they have
no primary labor dispute, where an object thereof is to force
or require the above-named persons to cease doing business
with each other or with their customers and suppliers, under
circumstances prohibited by Section 8(b)(4)(ii)(B) of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its business office and/or meeting hall copies
of the attached notice marked "Appendix." 12 Copies of said
notice on forms provided by the Regional Director for Re-
gion 21, shall, after being duly signed by an authorized
representative of the Respondent Union, be posted by it
immediately upon receipt thereof and be maintained by it anyone.
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the Union
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Sign and mail to the Regional Director for Region 21
sufficient copies of said notice, on forms provided by him,
for posting by General Nailing Machine Corporation pro-
vided the company is willing.
(c) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Board, the findings, conclu-
sions, and recommended Order herein shall, as provided in Sec. 102.48 of the
Rules and Regulations, be adopted by the Board and become its findings,
conclusions , and Order, and all objections thereto shall be deemed waived
for all purposes
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individual em-
ployed by Southwest Forest Industries, Inc., or any
other person, to refuse to work or render services in the
course of his employment, nor will we threaten, coerce,
or restrain Southwest Forest Industries, Inc., or any
other person, by picketing or other means, where, in
either case, an object thereof is to force or require
Southwest Forest Industries, Inc., or any other person,
to cease doing business with General Nailing Machine
Corporation.
PACKINGHOUSE EMPLOYEES AND
WAREHOUSEMEN'S UNION,
LOCAL 616, AFFILIATED
WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
TEAMSTERS, LOCAL 616 649
This notice must remain posted for 60 consecutive days ed to the Board's Office, Eastern Columbia Building, 849
from the date of posting and must not be altered, defaced, South Broadway, Los Angeles, California 90014, Telephone
or covered by any other material . Any question concerning 213-688-5229.
this notice or compliance with its provisions may be direct-