Teamsters Local 560

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1212 (N.L.R.B. 1980)

1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local Union No. 560, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and
Curtin Matheson Scientific, Inc. Case 14-CC-
1326
April 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On July 30, 1979, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
The Administrative Law Judge found that by
picketing a branch of Curtin Matheson Scientific,
Inc. (CMS), at the branch's warehouse in Missouri,
in support of Respondent's primary dispute with
CMS branch in New Jersey, Respondent engaged
in a secondary boycott violating Section
8(b)(4)(ii)(B) of the Act. Respondent does not con-
test the finding that its picketing had an object that
would, if the Missouri branch were a neutral
"person" under those statutory provisions, make
the picketing unlawful. It argues, however, that the
Missouri branch is not a neutral "person" with re-
spect to the New Jersey branch because CMS is a
single enterprise that encompasses its New Jersey,
Missouri, and other operating branches, that such
single enterprise is the primary employer in this
dispute, and that Respondent therefore picketed no
one except the primary employer.
Respondent, a Teamsters local, represents the
warehouse employees at the New Jersey branch; a
sister Teamsters local represents the warehouse em-
ployees at the Missouri branch. CMS, with corpo-
rate headquarters in Houston, Texas, is in the busi-
ness of warehousing and wholesaling laboratory
glassware and equipment, chemicals, and related
products. CMS publishes a national catalog in
which it advertises these products. CMS also
places national advertising in which it lists its 21
operating branches, located in cities throughout the
country, and directs prospective customers to its
248 NLRB No. 156
nearest branch. CMS has assigned each branch a
geographical service area.
The day-to-day operations of each branch are
conducted in a somewhat autonomous fashion by
branch managers whom CMS appoints, removes,
and transfers.' The branch managers conduct labor
relations for the branches, but must clear collec-
tive-bargaining proposals and wage plans for unre-
presented employees with the corporate personnel
director at CMS headquarters. Fringe benefits such
as a pension plan and medical benefits for unrepre-
sented employees are standardized on a national
basis. On at least one occasion CMS has exercised
its power to control branch labor relations by its
personnel director's participation in the contract
negotiations of the New Jersey branch. During
these negotiations the personnel director rejected a
union proposal on the ground that its acceptance
would be contrary to corporate policy.
The branch managers must submit annual sales
and cost projections to CMS, and are periodically
audited. CMS approves the projections, monitors
branches' profitability, and has the power to dis-
charge the branch managers.
The branches do not maintain traditional ac-
counting records. Instead, a record of each
branch's transactions is fed to a computer, at cor-
porate headquarters, which generates invoices. In-
voices are mailed from headquarters and are pay-
able there, and there is only one corporate tax
return filed. The headquarters computer maintains
inventories for each of the branches. When one
branch receives an order for an item it does not
have in stock or does not carry in inventory a
branch having it supplies the item and ships it di-
rectly to the customer of the receiving branch. The
receiving branch gets credit for the sale. Such
items represent slightly over 50 percent of the
dollar amount of all merchandise shipped by the
Missouri branch, the only branch for which such
figures are in evidence.
In sum, CMS is a national company with its own
mix of centralized and decentralized operations.
This mix, if not unique, presents, in a context some-
what different from what we have dealt with
before, the problem of whether one part of a com-
pany is entitled to be insulated from the labor dis-
putes of another part for purposes of Section
8(b)(4) of the Act.
We start with the fundamental proposition that
Section 8(b)(4) was designed to preserve the tradi-
tional right of striking employees to bring pressure
against employers who are substantially involved in
I Employees are sometimes promoted and transferred from one branch
to another to serve as branch manager or such other positions as oper-
ations manager or sales manager.
TEAMSTERS, LOCAL 560 1213
their dispute, while protecting neutral employers
from being enmeshed in it. 2 Since these legitimate
interests are often in conflict, lines must be drawn.
Such line-drawing is as necessary when dealing
with the problem of determining an employer's
neutrality as it is when dealing with other aspects
of the primary-secondary dichotomy. At times, the
lines may seem arbitrary. See United Marine Divi-
sion of the National Maritime Union, AFL-CIO,
Local No. 333 (D. M. Picton & Co., Inc.), 131
NLRB 693, 699 (1961). Arbitrariness can be mini-
mized, however, if we do not lose sight of the fun-
damental policy considerations the Board and the
courts have distilled from the known concerns of
Congress.
Two statements by Senator Taft have been taken
to summarize the legislative history of Section
8(b)(4) with respect to what constitutes a neutral
employer3 or, as the Act now reads, "person."
This provision makes it unlawful to resort to a
secondary boycott to injure the business of a
third person who is wholly unconcerned in the
disagreement between an employer and his
employees. [Emphasis supplied.] [93 Cong.
Rec. 4198 (1947), reprinted in II Leg. Hist.
1106 (NLRA, 1947).]
Later, in a post-legislative reflection on the purpose
of the provision, Senator Taft stated:
The secondary boycott ban is merely intended
to prevent a union from injuring a third person
who is not involved in any way in the dispute
or strike .... It is not intended to apply to a
case where the third party is, in effect, in ca-
hoots with or acting as a part of the primary
employer. [95 Cong. Rec. 8709 (1949).]
Out of Senator Taft's "wholly unconcerned"
statement, a Federal district court, 4 and then the
Board,5 devised what came to be called the "ally"
doctrine. It will suffice here to say that this doc-
2 See Douds v. Metropolitan Federation of Architects. Engineers Chem-
ists Technicians, Local 231. et al., 75 F.Supp. 672, 676 (S.D.N.Y. 1948).
The classic, often-quoted statement of this proposition attributes to Con-
gress "the dual . . . objectives of preserving the right of labor organiza-
tions to bring pressure to bear on offending employers in primary labor
disputes and of shielding unoffending employers and others from pres-
sures in controversies not their own." N.L.R.B. v. Denver Building
Construction Trades Council [Gould d Preisner], 341 U.S. 675, 692 (1951)
The term "offending," as used there, is not pejorative; rather, it is a con-
clusionary term signifying an employer with whom the union has been
found to have a legitimate primary dispute. As applied to the instant case,
the term's use in the quoted portion is redundant.
3 See Local 282. International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America (Acme Concrete Supply Corp.),
137 NLRB 1321, 1324 (1962)}.
4 Douds v. Metropolitan Federation of Architects, Engineers. Chemists
Technicians, Local 231, supra.
6 National Union of Marine Cooks and Stewards, and its Portland Local,
CIO, et al. (Irwin-Lyons Lumber Company), 87 NLRB 54, 56, 83-84
(1949).
trine developed into two branches, one involving
cases where an employer's neutrality was alleged
to be compromised by his performance of "struck
work," and another involving cases where neutral-
ity was contested on the ground that the boycotted
employer and the primary employer were a single
employer or enterprise.6 As the cases in which one
branch was applied usually did not involve the
other branch, each branch of the doctrine devel-
oped its own, independent set of rules. Even within
one branch, decisions sometimes focused on one or
more narrow aspects of the neutrality problem.
This occurred in the Hearst cases7 -on which the
Administrative Law Judge relied below-where
the Board focused on a refinement of the single-
employer problem: whether operating divisions of
a single corporation technically could be consid-
ered separate "persons" within the meaning of Sec-
tion 8(b)(4). 8
In the instant case the Administrative Law Judge
also focused narrowly on the technical question of
whether the New Jersey and Missouri branches are
separate "persons." Under the facts presented here,
however, this focus was too narrow; it ignores evi-
dence not strictly relevant to the "person" determi-
nation but still pertinent to the overriding question
of neutrality. As we said in Acme Concrete &
Supply Corp. :9
We need not here determine whether the rela-
tionship . . . is one of "single employer" or
"ally." It is sufficient that Acme and Twin
County have such identity and community of
6 See, generally, Levin, "'Wholly Unconcerned': The Scope and Mean-
ing of the Ally Doctrine Under Section 8(bX4) of the NLRA," 119 U.
Pa. L. Rev. 283 (1970); Sciacchitano, "The Single Employer Doctrine as
Applied to Section 8(bX4) of the National Labor Relations Act," 28
Cath U L Rev. 555 (1979) The "struck work" branch has also been
referred to, by itself, as the "ally" doctrine, and the other branch as the
"single-employer" doctrine.
7 Los Angeles Newspaper Guild. Local 69. et al. (San Francisco Examin-
er. Division of the Hearst Corporation, etr al.), 185 NLRB 303 (1970), enfd
443 F.2d 1173 (9th Cir. 1971), cert. denied 404 U.S. 1018; American Fed-
eration of Television and Radio .4rtisrs Washington-Baltimore Local, AFL-
CIO (Baltimore News American Division. The Hearst Corporation), 185
NLRB 593 (1970), enfd. 462 F.2d 889 (D.C. Cir. 1972).
s The Hearst cases were the culmination of a line of cases involving
one aspect of the single-employer or single-enterprise branch of the
"ally" doctrine: whether common ownership plus potential common con-
trol of the operation of the primary employer and the alleged neutral em-
ployer caused loss of neutrality. The Board had come to the view that
actual common control, not merely potential control, of their day-to-day
operations of labor relations, was a necessary predicate for such a find-
ing. Los Angeles Newspaper Guild, Local 69, 185 NLRB at 304. This con-
clusion reflected the realization that potential control is inherent in
common ownership and, as a basis for finding a loss of neutrality, would
be tantamount to basing it on common ownership alone. See J. G. Roy &
Sons Company v. L.R.B., 251 F.2d 771, 773-774 (Ist Cir 1958) This
the Board, at least after. G. Roy, supra, was unwilling to do. But these
cases did not involve any other factors, beyond common ownership and
potential control, that might demonstrate a unity of interest between the
primary employer and the alleged neutral concerning the labor dispute
The Hearst cases held that the common control doctrine applied even to
operating divisions of the same corporation.
9 137 NLRB at 1324.
TEAMSTERS, LOCAL 560
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interests as negative the claim that Acme is a
neutral employer. o
None of the individual factors determining neutral-
ity is considered in isolation; "rather the Board
weighs all of them to determine whether in fact
one employer is involved in or is wholly uncon-
cerned with the labor disputes of the other." Retail
Store Employee Union Local 1001, Retail Clerks In-
ternational Association, AFL-CIO (Land Title Insur-
ance Co. of Pierce County), 226 NLRB 754, 756
(1976), enforcement denied on other grounds, 600
F.2d 280 (D.C. Cir. 1979), cert. granted 100 S.Ct.
658 (1980). For, in the final analysis, the question
of neutrality:
. . . cannot be answered by the application of
a set of verbal formulae. Rather, the issue can
be resolved only by considering on a case-by-
case basis the factual relationship which the
secondary employer bears to the primary em-
ployer up against the intent of the Congress as
expressed in the Act to protect employers who
are "wholly unconcerned" and not involved in
the labor dispute between the primary employ-
er and the union. [Vulcan Materials Company
v. United Steelworkers of America, AFL-CIO,
and United Steelworkers of America, Local
Union No. 2176, 430 F.2d 446, 451 (5th Cir.
1970), cert. denied 401 U.S. 963 (1971).]''
The Board and the courts have thus stressed that
the branches of the "ally" doctrine are not to be
permitted to take on lives of their own and become
encrusted with nice rules and exceptions. They are
merely tools that must be used to reflect the full
range of congressional policies underlying the pri-
mary-secondary dichotomy. In deciding this case,
therefore, we consider all the strands of mutual in-
terest between the New Jersey and Missouri
branch warehouses of CMS. Local No. 24, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America [A.C.E. Transpor-
tation] v. N.L.R.B., 266 F.2d 675, 680 (D.C. Cir.
1959). Here, elements of both parts of the "ally"
doctrine are applicable.
The decisive link between the New Jersey and
Missouri branches is CMS itself, as a corporate
entity. The Hearst cases hold, of course, that cor-
porate identity does not in itself preclude neutrality
'o Accord: Local 14055, United Steelworkers of America, AFL-CIO
(The Dow Chemical Company), 211 NLRB 649, 651 (1974).
" "Neutrality, for purposes of the Act, is not a technical concept. To
determine whether an employer is neutral involves a common sense eval-
uation of the relationship between the two employers who are being
picketed." N.L.R.B. v. Local 810. Steel. Metals, Alloys & Hardware Fabri-
cators & Warehousemen, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, 460 F.2d 1, 6 (2d Cir 1972),
cert. denied 409 U.S. 1041.
among the parts of the corporation. But if CMS is
essentially a single enterprise, in its operations, its
employees have the right to picket geographically
separated parts of its operation in support of a pri-
mary dispute in one part, without proving that
there is a direct relationship between the parts at
the local level. International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, et al. (Alexander Warehouse &
Sales Company), 128 NLRB 916, 919 (1960). See
also Retail Clerks International Association, AFL-
CIO (Montgomery Ward & Co.), 122 NLRB 1264,
1270 (1959); Madden v. Steel, Metals, Alloys &
Hardware Fabricators & Warehousemen Local 810,
I.B.T., et al., 222 F.Supp. 635, 638 (D.C. Ill.
1963). 12
In our view, CMS, insofar as its warehousing
functions are concerned, exhibits "an appreciable
integration of operations and management policies"
(Drivers, Chauffeurs and Helpers Local No. 639, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Poole's War-
ehousing, Inc.), 158 NLRB 1281, 1286 (1966)) indic-
ative of a single enterprise.' 3 CMS does its nation-
al business through local branches which have sub-
stantial autonomy in day-to-day matters.' 4 But the
business performed by the branches is CMS busi-
ness as much as it is branch business. This is illus-
trated most graphically by the fact that over half
of the dollar value of shipments by the Missouri
branch go to customers who are not customers of
the branch but customers of other branches that
made the sales. Thus it is the regular business prac-
tice of CMS to provide from other branches,
where the headquarters computer shows them to
be available, those items which one branch has sold
but cannot ship. The sale, not the shipment, deter-
mines the branch credit for the profit made. Evi-
dently this pattern of cross-shipping represents
management policy at the corporate level. Because
the warehousing operations are integrated in this
12 Likewise, since a boycott does not "become secondary because en-
gaged in by primary employees not directly affected by the dispute"
(Houston Insulation Contractors Association v. NL.R.B., 386 U.S. 664, 669
(1967)), afortiori, an attempt to involve such employees in a boycott does
not make it secondary. International Brotherhood of Teamsters Chauffeurs,
Warehousemen and Helpers of America, AFL-CIO, et al (Alexander Ware-
house & Sales Company), supra at 920.
1S In Poole's Warehousing, Inc., supra, the Board applied the "active
common control" test that it uses when common ownership plus some
common control of two employers is asserted as the basis for denying
neutrality. See, fn. 8 supra. Such "active common control," that leading
case shows, is not the ultimate test but merely evidence of the degree of
integration of the businesses. Thus, the Board stated there that there must
be "such actual or active common control, as distinguished from merely
a potential, as to denote an appreciable integration of operations and
management policies" 158 NLRB at 1286.
14 Of course a degree of autonomy sufficient to warrant separate bar-
gaining units at each branch is not decisive on the question of neutrality.
See Houston Insulation Contractors Association v. N.L.R.B., 386 U.S. at
669; Retail Clerks International Association, AFL-CIO, 122 NLRB at 1270.
TEAMSTERS, LOCAL 560 1215
manner, any branch can suffer an interruption of its
warehousing operation, such as would accompany
a strike, with hardly any immediate effect on its
business. The branch could continue to seek and
take orders as usual.
Not only are the other branches available to take
up the slack in shipping; they are programed to do
so without the necessity of making any special ar-
rangements. Cf. International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, et al. (Alexander Warehouse &
Sales Company), 128 NLRB at 919.15 This insula-
tion from the effects of a strike is not due primarily
to technological advances or sophisticated inven-
tory techniques. It derives from the virtual certain-
ty that the other branches will perform the struck
work. 6 Should an independent contractor put
itself into such an arrangement with the primary
employer, it would, by performing the struck
work, become an "ally" and lose its neutrality.
Graphic Arts International Union (G.A.I. U.) Local
277; et al. (S & M Rotogravure Service, Inc.), 219
NLRB 1053, 1054 (1975), affd. 545 F.2d 1079 (7th
Cir. 1976). Where, as here, the arrangement is with
a commonly owned business whose performance of
the struck work is dictated by existing corporate
policy, we see no necessity in awaiting proof of the
actual performance of struck work before conclud-
ing that the nonstruck branches are "acting as part
of" CMS and are not "wholly unconcerned" with
one branch's labor disputes. See International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, et al. (Alex-
ander Warehouse & Sales Company), supra at 918-
919.17 Moreover, in conjunction with the corpo-
rate policy of cross-shipping, the control CMS ex-
ercises over branch labor relations, though not on a
day-to-day basis, is a factor which gives CMS the
appearance of a single employer by way of tactical
advantage in dealing with labor disputes at the
local level. See Royal Typewriter Company v.
N.L.R.B., 533 F.2d 1030, 1043 (8th Cir. 1976), en-
forcing 209 NLRB 1006 (1974). On these facts, we
find that there was no attempt to involve a neutral
in the Union's primary dispute. Accordingly, we
will dismiss the complaint.
'6 Since we deal here with a strike of warehouse employees, we need
not decide whether any nonwarehousing functions of CMS, such as sales,
are sufficiently integrated to deprive the branches of neutrality with re-
spect to labor disputes involving employees performing those functions
I6 See Levin, supra, at 319-320.
t7 There is, of course, no semblance of an arm's-length relationship
among the branches when they ship products to each others' customers
See Local 282, International Brotherhood of Teamsters. Chauffeurs. Ware-
housemen and Helpers of America, supra, 137 NLRB at 1322. Cf. Joint
Council of Teamsters Vo. 42. and General Teamsters, Chauffeurs. Warehou-
semen Helpers. Local 982, etc. (Inland Concrete Enterprises. Inc.), 225
NLRB 209. 213 (1976)
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER TRUESDALE, concurring:
As my colleagues have pointed out, the individ-
ual factors on which a finding of "neutrality" turn
are not viewed in isolation, but rather the Board
weighs them all in reaching its decision.' 8 I concur
in my colleagues' finding here that CMS' Missouri
branch is not a "neutral" with respect to CMS'
New Jersey branch in the latter's dispute with the
Respondent Union. In so doing, however, I have
accorded rather more weight to certain factors
than have my colleagues. I think this difference,
albeit one of emphasis only, warrants brief com-
ment.
My colleagues recognize, and I agree, that the
"decisive link" between the New Jersey branch
where the dispute arose and the Missouri branch
where the alleged unlawful picketing occurred is
CMS itself. As the record amply demonstrates,
CMS and its branches constitute what can only be
characterized as an integrated enterprise. And this
to such an extent that, of necessity, a labor dispute
with one part of the enterprise amounts to a dis-
pute with the whole. In this connection I note that
CMS provides its branches with accounting, adver-
tising, financial planning, inventory control, and
other services enumerated in the record, without
which the branches could not function. Moreover,
CMS is involved, in a variety of ways, in branch
labor relations and on occasion has exercised direct
and decisive control over such matters. All of this,
coupled also with CMS cross-shipping policy
which my colleagues find particularly significant,
sustains a finding that CMS and its branches are
not neutrals with respect to one another's labor dis-
putes. Accordingly, I join my colleagues in dismiss-
ing the instant complaint in its entirety.
I Supra
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge: This
case was heard before me at St. Louis, Missouri. on May
24, 1979, pursuant to complaint issued on April 30, 1979,
and charges filed on April 18, 1979. The General Coun-
sel alleges violations of Section 8(b)(4)(i) and (ii)(B) of
the Act. The Respondent denies the commission of
unfair labor practices.
TEAMSTERS, LOCAL 560
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, my observation of the demea-
nor of the witnesses, and due consideration of the post-
trial briefs filed by the parties, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Curtin Matheson Scientific, Inc. (herein referred to as
CMS) is a Delaware corporation with corporate offices
in Houston, Texas. It has 21 branches in various cities
throughout the United States, including Maryland
Heights, Missouri (herein referred to as CMS-St. Louis)
and Wayne, New Jersey (herein referred to as CMS-
New Jersey). CMS and its branches warehouse, distrib-
ute, and sell laboratory glassware, reagent grade chemi-
cals, clinical laboratory equipment, and related products.
CMS-St. Louis services an area consisting of portions
of Missouri, Illinois, Arkansas, Tennessee, and Mississip-
pi. During the 12-month period ending April 30, 1979,
CMS-St. Louis had gross revenues of approximately $7
million; purchased supplies and materials valued in excess
of $80,000, which were in major part shipped directly to
CMS-St. Louis from points outside the State of Missouri;
and sold and shipped goods valued at approximately $4
million directly from CMS-St. Louis to points located
outside the State of Missouri. I find that CMS-St. Louis
has at all times material herein been engaged in com-
merce or an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent is and has been at all times material
herein a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. FINDINGS OF FACT AND CONCLUSIONS BASED
THEREON
The Respondent has a collective-bargaining relation-
ship with CMS-New Jersey, and was on strike there at
all times material herein. The Respondent, at the hearing,
disavowed any claim of representation for CMS-St.
Louis employees. CMS-St. Louis has a collective-bar-
gaining agreement with Local 688, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, covering its warehouse employees,
and none with the Respondent. From April 17, 1979,2
through May 4, the Respondent picketed the CMS-St.
Louis facility in Maryland Heights, Missouri. Its pickets
carried signs bearing the legend "Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 560 on
strike." Above that legend on the signs was handwritten
the words "At Curtin Matheson Scientific." During the
picketing, the CMS-St. Louis warehouse employees re-
fused to cross the picket line, and there was a total cessa-
tion of incoming and outgoing deliveries which were
I Resp. Exh. 2, a late-filed exhibit consisting of a two-page summary of
shipments by CMS-St. Louis for all branches generally and for the New
York branch specifically from October 1, 1978, to April 30, 1979, has
been received in evidence and placed in the official file of exhibits.
2 All dates herein are in 1979.
normally performed by common carriers. The common
carrier trucks did not cross the picket line.
It is plain that by its picketing, which obviously grew
out of and was in furtherance of its dispute with CMS-
New Jersey, the Respondent induced and encouraged
employees of CMS-St. Louis to strike or withhold their
services, and coerced or restrained CMS-St. Louis, with
an object in each case of causing a cessation of business
between CMS-St. Louis and CMS-New Jersey and other
customers and suppliers of CMS-St. Louis.
The Respondent contends that CMS-St. Louis is not a
separate "person" within the meaning of Section 8(b)(4)
of the Act, and that it and CMS-New Jersey are but in-
separable pasts of one corporate entity, CMS. The Re-
spondent asserts that its labor dispute is with CMS, not
just CMS-New Jersey, and that it may therefore picket
its CMS-St. Louis branch in furtherance of the labor dis-
pute arising at the CMS-New Jersey branch. In sum, the
Respondent would have me find that CMS-St. Louis is
not a separate "person" within the meaning of Sections
2(1) and 8(b)(4) of the Act,3 and its picketing is primary
in nature.
The facts set forth below with respect to the CMS-St.
Louis branch are derived from the credible testimony of
its branch manager, Edward Matheny, except as other-
wise noted.
Matheny is in charge of the day-to-day operations of
the branch, and is accountable to the parent corporation
in Houston, Texas, for its profitability. CMS-St. Louis is
periodically audited by CMS, to whom Matheny submits
annual sales and costs projections, and Matheny reports
to the CMS area manager in Houston who reviews the
profitability of CMS-St. Louis and has the power to
remove Matheny as branch manager. Visits of corporate
officials to CMS-St. Louis are infrequent. The geographi-
cal boundaries of the branches are determined by CMS
corporate headquarters. CMS lists all branches in its na-
tional advertising with their respective addresses. The in-
dividual inventory records of the branches are main-
tained as separate items in the CMS computer at Hous-
3 Sec. 8(b)(4) provides, in relevant part, that it shall be an unfair labor
practice for a labor organization:
(i) to engage in, or to induce or encourage any individual em-
ployed by any person engaged in commerce or in an industry affect-
ing commerce to engage in, a strike or a refusal in the course of his
employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles materials, or commodities or
to perform any services; or (ii) to threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is:
(B) forcing or requiring any person to cease using, selling, han-
dling, transporting, or otherwise dealing in the products of any
other producer, processor, or manufacturer, or to cease doing
business with any other person . . Provided, That nothing con-
tained in this clause (B) shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary pick-
eting ....
Sec. 2(1) of the Act provides:
Sec. 2. When used in this Act-
(I) The term "person" includes one or more individuals, labor or-
ganizations, partnership, associations, corporations, legal representa-
tives, trustees, trustees in bankruptcy, or receivers.
TEAMSTERS, LOCAL 560 1217
ton, and payments for sales made by CMS-St Louis are
directed to a Houston post office box. Federal tax re-
turns and Securities and Exchange Commission reports
are submitted by CMS. CMS-St. Louis submits equal em-
ployment opportunity reports directly to the Federal
government.
There is no interchange of employeees between CMS-
St. Louis and CMS-New Jersey. Matheny determines the
size of the St. Louis work force and hires and fires St.
Louis employees without corporate consultation or prior
approval but informs the corporate personnel director at
Houston of such actions. On one occasion he discussed
the ramifications of the discharge of a member of a mi-
nority group with the corporate personnel director, but
had already made the decision to discharge. He estab-
lishes wages for those St. Louis employees not subject to
the CMS-St. Louis collective-bargaining agreement with
Local 688, Teamsters, on the basis of area wage surveys,
subject to corporate review. Matheny has and exercises
the authority to hire salesmen at more than the corporate
minimum. Certain fringe benefits for unrepresented em-
ployees, including medical benefits, a pension plan and
profit-sharing, are standardized on a national basis.
Matheny formulates contract proposals and conducts
negotiations with Local 688. He discusses these proposals
with the corporate personnel director, who could veto
them but does not appear to have done so to date.
The commercial carriers utilized by CMS-St. Louis are
selected by Matheny, and he directly contracts for the
necessary maintenance and janitorial work at the branch.
Matheny determines which products to market at his
branch, authorizes purchases directly from outside ven-
dors and stocks merchandise not produced by CMS,
varies sale prices at his own discretion, extends credit
without corporate consultation, and institutes collection
proceedings on branch delinquent accounts.
CMS-St. Louis fills orders for other branches, usually
shipping directly to customers, when the other branches
do not inventory the item and CMS-St. Louis does.
Dennis Crossan, warehouseman at CMS-New Jersey,
agrees that there is some shipping of stock from St.
Louis to New Jersey and vice versa. I conclude this is
material from inventory not stocked at the receiving
branch. In this connection, I have examined the summar-
ies of shipments by St. Louis for all branches collectively
and the New York branch specifically 4 and conclude
that they shed no light on the issue at bar and are totally
lacking in probative weight.
The principles established by the Board in the Hearst
cases5 are controlling in this case. In Hearst, the Board
held that different divisions of a corporation were sepa-
rate "persons" within the meaning of Sections 2(1) and
8(b)(4)(B) where the authority exercised by the corpora-
4 Both summaries were proffered by the Respondent. Neither specifi-
cally sets forth the amount of shipments for CMS-New Jersey
I Los Angeles Vewspaper Guild, Local 69. e al. (San Francisco Examin-
er. Division of the Hearst Corporation, et al.), 185 NLRB 303 (1970); and
American Federation of Television and Radio Artists, Washington-Baltimore
Local. AFL-CIO (Baltimore News American Division. The Hearst Corpora-
tion), 185 NLRB 593 (1970).
tion over its divisions amounted only to potential control
of their operations, and actual control over the day-to-
day operations and labor relations of the divisions rested
in each division manager. I perceive no meaningful dis-
tinction between the divisions in Hearst and the CMS-St.
Louis branch in this case.6
The facts herein show that the CMS-St. Louis branch
manager has and actively exercises independent control
over both the day-to-day operations and the labor rela-
tions of the branch, and that the authority exercised by
CMS over CMS-St. Louis daily operations or labor rela-
tions is no more than potential control. Accordingly, I
conclude and find that CMS-St. Louis is a separate
"person" entitled to the protection of Section 8(b)(4)(B)
from the labor dispute of the Respondent with CMS-
New Jersey. I further find that inasmuch as CMS-St.
Louis is a separate "person" it necessarily follows that
CMS-New Jersey is a "person" separate from CMS-St.
Louis.
I find, on the facts and for the reasons set forth above,
that the Respondent's picketing of the CMS-St. Louis fa-
cility in furtherance of its dispute with CMS-New Jersey
was an effort to enmesh CMS-St. Louis, a neutral
person, in that dispute, had the effect of restraining and
coercing CMS-St. Louis and inducing its employees to
strike, with an object of causing a cessation of business
between CMS-St. Louis and CMS-New Jersey and other
customers and suppliers, and violated Section 8(b)(4)(i)
and (ii)(B) of the Act. 7
CONCLUSIONS OF LAW
1. CMS-St. Louis is an employer engaged in com-
merce or an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. CMS-St. Louis and CMS-New Jersey are "persons"
within the meaning of Sections 2(1) and 8(b)(4) of the
Act.
4. By picketing the premises of CMS-St. Louis, with
which it has no labor dispute, the Respondent has in-
duced and encouraged individuals employed by CMS-St.
Louis to engage in a strike or refusal to perform services,
and has coerced and restrained CMS-St. Louis, with an
object in each case of forcing or requiring CMS-St.
Louis to cease doing business with CMS-New Jersey and
other customers and suppliers, and has thereby engaged
in unfair labor practices within the meaning of Section
8(b)(4)(i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
s Although the evidence adduced related almost exclusively to the op-
erations and corporate relationship of CMS-St Louis to CMS, I am of
the opinion that there is a reasonably inferrable presumption that all CMS
branches are substantially the same in terms of day-to-day operation and
have the same relationship to CMS as does CMS-St Louis. There is no
persuasive evidence to the contrary.
7 Los Angeles Newspaper Guild. Local 69 e al., supra.
TEAMSTERS, LOCAL 560