Teamsters Local 70

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1224 (N.L.R.B. 1988)

1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Teamsters Local 70, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO1
and Military Traffic Management Command,
Western Area, United States Department of De-
fense. Case 32-CC-678
May 31, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On May 31, 1983, Administrative Law Judge
Burton Litvack issued the attached decision. The
General Counsel, the Charging Party, and the Re-
spondent filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs 2 and
has decided to affirm the judge's rulings, findings,3
and conclusions, as modified, and to adopt the rec-
ommended Order.
The judge found that the Respondent, Teamsters
Local 70, did not violate Section 8(b)(4)(ii)(B) of
the Act when it threatened to picket at the Oak-
land Army Base, Oakland, California (Base), be-
cause its conduct fell within the primary picketing
proviso to Section 8(b)(4)(B). For the reasons set
forth below, we agree with the judge's conclusion.
The Charging Party, Military Traffic Manage-
ment Command, Western Area (MTMCWA or the
Army), is a subentity of the Department of Defense
(DOD) and operates an ocean terminal at the Oak-
land Army Base known as the Military Ocean Ter-
minal Bay Area (MOTBA).
Mike Profumo and Tony Martin 4 had for several
years before February 18, 1983, provided forklift
and unloading services at Pier 7 on the Oakland
Base. Profumo and Martin performed their services
pursuant to fixed term "revocable; non-exclusive"
licenses granted by the Army. They were paid di-
rectly by the common carriers who used their serv-
On November 2, 1987, the Teamsters International Umon was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change
2 The Charging Party has requested oral argument The request is
denied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties
3 The Charging Party and the General Counsel have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings.
4 The Respondent stipulated and also amended its answer to admit that
Profumo and Martin were independent contractors within the meaning of
Sec. 2(3) of the Act.
ices and within 30 to 60 days the common carriers
were reimbursed by the Army. Profumo and
Martin are members of the Respondent, which had
represented them in at least one other dispute with
the Army in the past.
On November 13 and 19, the Army informed
Profumo and Martin by letter that during Decem-
ber 1981 it would conduct a test using its own civil
service employees to perform the forklift services
at Pier 7. On November 30, the Army delayed im-
plementation of the test "in order to facilitate dis-
cussions between officials of the Respondent and
representatives of MTMCWA and MOTBA."
These negotiations were unsuccessful and the
Army decided to proceed with the test. On De-
cember 8, 1981, Jack Spratt, business agent for the
Respondent, warned MTMCWA that it would
engage in picketing because MTMCWA had
stopped using "Mike and Tony's forklift services."
The test was implemented and on numerous occa-
sions between December 14 and 31, 1981, the Re-
spondent picketed several entrances to the Oakland
Army Base with signs reading, "U.S. Army Unfair
to Teamsters Local 70, Tony and Mike." Employ-
ees of private contractors and of common carriers
honored the picketing and refused to enter the
Base, resulting in an almost total shutdown of
DOD operations at the Base. On December 31,
1981, the Army and the Respondent agreed that
the Respondent would cease picketing and the
Army would suspend the test.5
MTMCWA ultimately instituted a bidding pro-
cedure for the forklift work. On September 16,
1982, during the lengthy bidding process, Spratt
warned a DOD representative that the Respondent
would resume picketing the Base if the Army
awarded the forklift work to its own civilian per-
sonnel and deprived Profumo and Martin of the
work. On the basis of a comparison of the bids sub-
mitted, it was concluded that MTMCWA would
save approximately $78,000 over a 3-year period by
doing the work with civil service employees. Ac-
cordingly, Stanley Goertzen, a contracting officer
for MTMCWA, announced a tentative decision
that the forklift work would be done "in-house."
After a public review and appeal period, Goert-
zen wrote each bidder that the decision to perform
the forklift work at Pier 7 in-house was final and
that effective January 10, 1983, the Government
would assume the work.
On January 14 and February 4, 1983, Spratt
warned that the Respondent would picket the Base
5 The Respondent's picketing was the subject of a charge filed by
MTMCWA on December 17 The charge was dismissed on December
28, 1981.
288 NLRB No. 138
TEAMSTERS LOCAL, 70 (DEPT., OF DEFENSE) 1225
, -
if the work were assigned to civil service employ-
ees of the Army. On February 10, 1983, the Re-
spondent followed these verbal threats with a tele-
gram threatening the same activity. Having appar-
ently postponed the implementation of its decision
for 1 month, MTMCWA's counsel, Gerald Flan-
nery, wrote to both Profumo and Martin on Febru-
ary 11, 1983, advising each that his equipment
should be removed from Pier 7 because the Gov-
ernment personnel would commence work there on
February 18, 1983. On February 15, 1983, the Re-
spondent's attorney sent a letter to Flannery stat-
ing, inter alia:
Please be advised that the sole purpose of
Local 70's picketing will be to exercise its
First Amendment right to petition the govern-
ment to" reverse its decision which will ad-
versely affect the employment of Tony and
Mike, who have worked at the Army Base for
many, many years. There will be no other pur-
pose whatsoever to the picketing.
On February 16 and 18, 1983, Spratt repeated his
threat to picket the Base. Nevertheless, the-Army
implemented its decision as scheduled. At the time
of the hearing, there had been no picketing pursu-
ant to these threats by the Respondent.
The judge concluded that the Respondent's ac-
tivity is not proscribed within the meaning of Sec-
tion 8(b)(4)(ii)(B).6 We agree. In reaching this con-
clusion, the judge found that the General Counsel
and the Charging Party had failed to present the
evidence necessary to show that the Respondent's
purpose and conduct is secondary. The judge
pointed out that the Respondent had no dispute
with any entity other than DOD (and
MTMCWA). He noted that although the Charging
Party and the General Counsel wove "an intricate
matrix of interrelated arguments" to portray DOD
as a neutral party, their case did not identify a pri-
mary objective "elsewhere."
The General Counsel argues that the judge erred
because the Board and the courts have found ille-
gal secondary activity when, as allegedly here, the
6 Sec. 8(b)(4)(ii)(B) states, in relevant part, as follows:
(b) It shall be an unfair labor practice for a labor organization or
its agents—
(4) . . (h) 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 contained in this
clause (B) shall be construed to make unlawful, where not otherwise
unlawful, any primary strike or primary picketing
Union has no primary dispute with an employer.?
In all those cases, however, there have been cogni-
zable primary disputants, albeit not always "labor"
disputants. Thus, in Teamsters Local 812 v. NLRB,
there was a primary dispute between the union and
the nonlocal soft drink manufacturers. In Maritime
Union, the primary dispute was between rival
unions. In Allied, there was a primary dispute be-
tween the ILA and the USSR. Moreover, as noted
by the judge, the major cases that the General
Counsel relies on to support her argument that the
Respondent's actions are not in furtherance of a
primary dispute have, in fact, identifiable primary
disputes. In Teamsters Local 816 (Montgomery
Ward), 8 there was a primary dispute between the
union and the new delivery contractor, and in Elec-
trical Workers IBEW Local 399 (Illinois Bell), 9 the
primary dispute was between Illinois Bell and the
union. In the instant case, as the judge pointed out,
if DOD is the neutral (or secondary) "person,"
there are no primary disputants because the only
primary dispute that exists in this case is between
DOD and the Respondent.1°
Further, the fact that the dispute here did not
concern statutory employees does not affect the de-
termination of whether the Union's conduct was
primary or secondary activity. As the Board held
in Production Workers Local 707 (Checker Taxi),"
the key factor in determining the primary or sec-
ondary nature of picketing is whether the picketing
was applied against a neutral party. Primary picket-
ing includes all picketing against nonneutral parties,
whether by independent contractors or by anyone
else. Here, DOD is not a neutral party, but is di-
rectly and intimately involved in the underlying
dispute. The independent contractors' dispute was
solely with DOD, and the picketing on behalf of
the independent contractors was directed at DOD.
As DOD is not a neutral, the Respondent's picket-
ing against DOD is primary activity that does not
violate Section 8(b)(4)(B) of the Act. Accordingly,
we shall adopt the judge's recommended Order
and dismiss the complaint.12
7 Teamsters Local 812 v. NLRB, 657 F 2d 1252 (D.0 Qr. 1980); Mari-
time Union v. NLRB, 346 F.2d 411 (D.C. Or. 1965), cert. denied 382 U S.
840 (1965); Longshoremen ILA (Allied International), 257 NLRB 1075
(1984
8 127 NLRB 1059 (1960), enfd 292 F 2c1 329 (2d Or 1961).
9 235 NLRB 555 (1978).
1 ° We also agree with the judge, for the reasons stated by him, that
the Army can hardly be said to have lacked control such that it is an
unofferiding neutral party to the dispute.
11 283 NLRB 340 (1987). See also Teamsters Local 70 (Chipman
Freight), 283 NLRB 343 (1987).
52 The Respondent contends that the Board should dismiss the com-
plaint on the ground that its activities are protected by the first and fifth
amendments to the United States Constitution. Given our conclusion that
the Respondent's threats to picket did not violate Sec 8(b)(4X13) of the
Act, we find it unnecessary to address this contention.
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
Veronica Clements, Esq., for the General Counsel.
David A. Rosenfeld, Esq., of San Francisco, California,
for Respondent.
Major George Sisson and Steven Brodsky, Esqs., of Wash-
ington, D.C., and Gerald Flannery, Esq., of Oakland,
California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LrrvAcx, Administrative Law Judge. This
matter was heard by me in Oakland, California, on
March 15, 1983. On February 24, 1983, the Regional Di-
rector for Region 32 of the National Labor Relations
Board (the Board) issued a complaint and notice of hear-
ing based on an unfair labor practice charge filed on
February 9, 1983, by Military Traffic Management Com-
mand, Western Area, Department of Defense
(MTMCWA) alleging that Teamsters Local 70, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL-
CIO (Respondent), has engaged in acts and conduct vio-
lative of Section 8(b)(4)(ii)(B) of the National Labor Re-
lations Act. Respondent filed an answer, denying the
commission of any unfair labor practices. At the hearing,
all parties were permitted to examine and cross-examine
witnesses, to offer any relevant evidence, to argue their
positions orally, and to file posthearing briefs.
On the entire record in this case,' my observation of
the demeanor of the witnesses, and the posthearing
briefs, all of which have been carefully considered, I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material the U.S. Army, a part of the De-
partment of Defense (DOD), has operated certain trans-
portation services at the Oakland Army Base, Oakland,
California (the Base). During the 12-month period imme-
diately preceding the issuance of the instant complaint,
certain contractors and suppliers of the DOD performed
transportation and related services, as essential links in
interstate commerce, at the Base, with the services being
valued in excess of $50,000. Also during the same 12-
month period, the DOD purchased and received at the
Base goods valued in excess of $50,000 directly from
points located outside the State of California. Contrary
to Respondent, having taken official notice of the role of
the DOD in providing for the defense of the United
States, I fmd that its operations at the Base clearly have
a substantial impact on the national defense. Further,
while Respondent denies that the DOD is a "person" en-
1 The motion of the General counsel to correct the transcnpt is grant-
ed
gaged in commerce, or in an industry affecting com-
merce within the meaning of Section 2(1) of the Act, the
Board has held that the provision "plainly includes polit-
ical subdivisions." Longshoremen ILWU Local 16 (City of
Juneau), 176 NLRB 889 (1969). Also, the Board has pre-
viously found two Federal Government entities, divi-
sions of the DOD, to be "persons" entitled to the protec-
tion of the provisions of Section 8(b)(4) of the Act.
Teamsters Local 70 (Dept. of Navy), 261 NLRB 496
(1982); Longshoremen ILWU Local 1248 (U.S. Naval
Supply Center), 195 NLRB 273 (1972). Based on the fore-
going, I find that the operations of the DOD at the Base
affect commerce and that DOD is now, and has been at
all times material here, a person engaged in commerce,
or in an industry affecting commerce, within the mean-
ing of Section 2(1), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that it is now, and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. ISSUES
The central issue concerns admitted threats by repre-
sentatives of Respondent to picket at the Base and
whether the threats constitute violations of Section
8(b)(4)(ii)(B) of the Act. It is the position of the General
Counsel that Respondent's conduct is violative of the
foregoing provision based on the circumstances; while
the Charging Party argues that any "economically coer-
cive picketing" of a Federal Government agency is vio-
lative of Section 8(b)(4)(B) of the Act. Respondent's de-
fense is twofold: that its conduct was primary within the
proviso to Section 8(b)(4)(B) and that it merely sought to
"petition" the United States Army, conduct protected by
the first amendment to the Constitution—notwithstand-
ing the secondary boycott provisions of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
The Charging Party, MTMCWA, is a subentity of the
DOD and operates ocean terminals in Seattle, Washing-
ton; Wilmington and Oakland, California; Okinawa, Yo-
kohama, Japan; and Pusan, Korea. The facilities are su-
pervised by the United States Department of the Army
(the Army), and staffed by personnel from various
branches of the armed forces. In Oakland, California,
MTMCWA's ocean terminal facility is located at the
Oakland Army Base and is known as the Military Ocean
Terminal Bay Area (MOTBA). The latter is the primary
military ocean terminal on the West Coast and is respon-
sible for the expeditious movement of DOD cargo 3 be-
2 Significant portions of the below-described facts were the subjects of
stipulations between the parties Whenever facts were adduced by oral
testimony, I have identified the source witness
3 The DOD cargo includes all types of military hardware (airplanes,
tanks, boats, vehicles, and artillery), repair parts, consumables, raw mate-
rials, test equipment, and support items for overseas military personnel
TEAMSTERS LOCAL 70 (DEPT. OF DEFENSE) 1227
tween Northern California commercial and Government
ocean terminals. The activities are conducted in support
of United States military and other Government entities
operating in Korea, Japan, Hawaii, and other Pacific
Basin locations; Diego Garcia, located in the Indian
Ocean; and all other military installations throughout the
United States. The principal operating components of
MOTBA are a deep water ocean pier, Pier 7, which is
capable of berthing oceangoing ships for loading and dis-
charging cargo and a container freight station, comprised
of a complex of warehouses, at which containerizable
military cargo is stuffed into sea vans for shipment,
aboard U.S. flag ocean container common carriers,
throughout the Pacific Basin area.
Marine Terminal Corporation (MTC) is the stevedor-
ing contractor for MOTBA and provides services at, and
has an office on, Pier 7. MTC is an employer-member of
the Pacific Maritime Association and is a party to a col-
lective-bargaining agreement with various locals affili-
ated with the International Longshoremen and Warehou-
semen's Union. MTC's employees, who work at Pier 7,
are members of that labor organization. Inter Modal
Cargo Services (IMCS) is the primary contractor
charged with operating the container freight station for
MOTBA. IMCS is a party to a collective-bargaining
agreement with it and its employees, who work at the
container station, are members of Local 853, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. The IMCS employees' job
duties include receiving, staging, and stuffing containers
that are then hauled by truck from the Base to the facili-
ties of the common carrier, which has contracted to ship
the containers. The identical procedure is utilized in the
offloading of incoming military cargo that is received at
Pier 7.
At the center of the controversy are two individuals,
Mike Profumo and Tony Martin, each of whom, for sev-
eral years prior to February 18, 1983, provided forklift
and unloading services in the vicinity of Pier 7,4 The
record establishes that historically the Army permitted
individuals, such as Profumo and Martin, to provide the
aforementioned services for commercial common carriers
that were receiving or delivering break-bulk cargo at
Pier 7. Since March 1980, both Profumo and Martin per-
formed their forklift operations at the pier pursuant to
fixed term "revocable, nonexclusive" licenses, which
were granted by the Army. The record further estab-
lishes that utilization of Profumo and Martin was discre-
tionary with the common carrier, which could use its
own personnel, another forklift service, or Profumo and
Martin. Regarding their operations, Profumo and Martin
were paid directly by the common carrier for their serv-
ices (each set his own rates, which were incorporated in
a printed rate schedule, and informed the truckdrivers of
the charges). Some carriers maintained billing arrange-
ments with Profumo and Martin whereby each was com-
pensated on a monthly basis directly from the common
4 Profumo did business as Mike's Lifttruck Service and Martin did
business as Tony's Trucklift Service. The parties stipulated that, although
there was no formal business relationship between them, Profumo and
Martin shared the forklift work at Pier 7, cooperating and working side
by side.
carrier's office. Unknown carriers, to which both decid-
ed not to extend credit, were charged and billed directly
on the completion of their work. Profumo and Martin
performed their work on a load-by-load basis, determin-
ing themselves when and how they worked, as well as
their hours of work. 5 Usually within 30 to 60 days of
compensating Profumo and Martin, the common carriers
were reimbursed by the Army for the loading and/or un-
loading costs—either at the carrier's costs or based on a
transportation tariff.
In performing their forklift work, Profumo and Martin
utilized their own, respective equipment, which each
maintained and for which each supplied the fuel and
spare parts, none of which parts or fuel was purchased
from the Army. They stored all their equipment in an
area designated for such purpose by the Army. Also at
this location, Martin and Profumo stored a trailer that
they jointly owned and utilized and the spare parts for
their forklifts. Both spent their daily nonwork hours
either in this area or at locations away from the Base.
Profumo and Martin were free to perform work at loca-
tions other than at the Oakland Army Base if no business
was available there; however, each derived substantially
all his income from work at the Base. Each individual
was responsible for all aspects of his business, including
income tax payments, insurance, and other costs; neither
received compensation above that specified in their rate
schedules. Regarding their respective legal status, Re-
spondent stipulated and, also, amended its answer to
admit that Profumo and Martin were independent con-
tractors within the meaning of Section 2(3) of the Act.
In November 1981 the Army decided, and informed
both Profumo and Martin, that it would conduct a test,
utilizing its own civil service employees to perform fork-
lift services at Pier 7 during the month of December
1981. Three factors were the basis for this decision: the
fact that the Government had no control over the fork-
lift service costs at Pier 7, which costs were eventually
reimbursed to the common carriers by the Army; the
Army's belief that it would be more cost efficient and ef-
fective to use "under-utilized" civil service personnel to
perform the forklift work; and the Army's concern that
"lumper" practices at Pier 7 possibly were resulting in
"problems under the Motor Carrier Act," a Federal stat-
ute that essentially prohibits abusive lumper practices.
Letters were sent to Profumo and Martin on November
13 and 19, advising them of the aforementioned test. The
two licensees are members of Respondent, and on No-
vember 30, the Army delayed implementation of the test
until December 10 "in order to facilitate discussions be-
tween officials of [Respondent] and representatives of
[MTMCWA and MOTBA]." 6 These negotiations appar-
5 Ordinarily, Profumo and Martin arranged their work so as to be
present during the operational hours of Pier 7.
6 Although Respondent neither represents employees at the Oakland
Army Base nor, according to Gerald Flannery, labor advisor and deputy
staff judge advocate at the Base, has requested that the Army execute a
collective-bargaining agreement covering the services of Profurno and
Martin, the record reveals that Respondent has, in fact, represented the
two forklift operator's in any disputes with the Army Thus, according to
Flannery, besides "working a lot" with Respondent over the instant
Continued
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ently were unsuccessful; the Army determined to pro-
ceed with its test; and on December 8, Jack Spratt, a
business agent for Respondent, warned MTMCWA that
"we will engage in picketing because you have stopped
using Mike and Tony's forklift services." Nevertheless,
the test was implemented as scheduled and, as threat-
ened, on numerous occasions between December 14 and
December 31, Respondent picketed at several entrances
to the Oakland Army Base with picket signs reading
"U.S. Army Unfair to Teamsters Local 70, Tony and
Mike." 7 Inasmuch as employees of private contractors
and of common carriers honored the picketing and re-
fused to enter the Base, the effect of the picketing was
ultimately to cause almost a total shutdown of DOD
transportation operations at the Base. On December 31,
the Army and Respondent concluded an agreement in
which Respondent ceased picketing and the Army sus-
pended the aforementioned test.9
In January 1982 an Oakland MTMCWA staff study
was undertaken to examine the cost effectiveness of the
civilian forklift operations at Pier 7 as opposed to such
work performed by civil service employees of the Army
and to determine whether this work fell within the pa-
rameters of Office of Management and Budget (OMB)
Circular A-76. 9 The staff study concluded that the
Army would save a significant amount of money if civil
service personnel were utilized to perform forklift oper-
ations at Pier 7. In addition, it was determined that the
work situation at Pier 7 was a "unique" one and did not
fall within the guidelines of OMB Circular A-76 to re-
quire a "cost comparison" or bidding procedure before
the forklift work could be given to the Army's own em-
ployees. The Oakland MTMCWA command structure
approved the staff study and forwarded it to the com-
mander of the Military Traffic Management Command
(MTMC) in Washington, D.C. About February 11, by
teletype, MTMC headquarters informed its Oakland
matter, he dealt with Respondent regarding a household goods dispute
involving Profumo and Martin. Further, when asked during cross-exami-
nation whether Respondent represented both individuals in all matters,
Flannery admitted, "Yes, they have."
7 Although an objection to such testimony was sustained, the Charging
Party was permitted to make an offer of proof that the picketing was
concentrated at the entrance closest to Pier 7 where the employees of
MTC worked; that approximately 30 to 40 pickets were at this location
when the MTC employees were scheduled to report for work, that the
same number of pickets were stationed at the Base entrances through
which common earners entered the Base; and that picketing at the latter
entrances obstructed common carrier ingress to the Base. The offer of
proof was denied Subsequent to the close of the hearing, I have recon-
sidered this ruling and decided to reaffirm it. However, assuming ar-
guendo the truth of all material facts contained in the offer of proof, I
would still find such to be not relevant to my decision, noting that, as
will be discussed infra, Respondent's conduct at all times material has
been primary activity and that, in any event, the letter from Respondent's
attorney, dated February 15, 1983, essentially disavows the above-de-
scribed conduct and, without more, renders events 14 months earlier too
remote to discredit the disclaimers contained in the attorney's letter Car-
Renters Local 2361 (Adams Insulation), 248 NLRB 313, 315 (1980).
8 Respondent's picketing was the subject of a charge in Case 32-CC-
569 filed by MTMCWA on December 17. The charge was dismissed on
December 28, 1981
9 This OMB directive contams the Federal Government's policy for
acquirmg commercial or industrial products or services that are necessary
for Government use and sets forth cost comparison procedures for deter-
mining if commercial activities should be done by contract or by civil
service personnel
office that the aforementioned staff study had not been
accepted and that any award of the forklift work at Pier
7 should be as a result of a cost study to be accom-
plished by a bidding procedure.
Consequently, on August 9, 1982, Stanley Goertzen, a
contracting officer for MTMCWA at the Oakland Army
Base, received a "purchase request" for forklift services
at Pier 7. The document, according to Goertzen, initiat-
ed the bidding procedures for the eventual awarding of a
contract for that work under OMB Circular A-76. Three
days later, Goertzen placed an advertisement in the
Commerce Business Daily, alerting potential bidders that
the contract for the providing of forklift services at Pier
7 would soon be awarded, and soliciting their participa-
tion in the process. Only five potential bidders evidenced
interest in the contract and, as a result, Goertzen issued
"a letter of interest" on September 2, again soliciting bids
for the forklift work." On September 8, a formal solici-
tation of bids was issued by the MTMCWA acquisition
office and, on September 16, a prebid conference, at
which prospective bidders were in attendance and asked
questions regarding the solicitation issued 8 days earlier.
The record reveals that on the same day as the prebid
conference, Respondent's business agent Spratt warned a
DOD representative that Respondent's picketing at the
Base would resume if the Army implemented its decision
to perform the forklift work at Pier 7 with its own civil-
ian personnel and cease permitting Profumo and Martin
to do such work.
The bidding process continued and, eventually,
MTMCWA received four private, commercial bids"
contained in sealed envelopes. On receipt, each bid was
placed in a "bid box," which was kept in the hallway
outside the acquisition office. The formal bid opening
day was October 15, and the bids were opened by
Goertzen and two associates from his office. The formal
bids were submitted by Profumo ($524,543), Martin
($1,139,216), Globe-Wally's Forklift Company
($603,511), and Robert M. Young Jr. ($164,984.40). 12 As
each sealed bid was opened, the price of the bid was re-
corded on a bid abstract sheet. Thereupon, Goertzen and
his associates selected the low private bidder (Young)
and compared his bid price with that of the estimated
cost of performing the work with the Army's civilian
employees—$84,000. Cost calculations were placed on a
chart, and it was concluded, with adjustments, that
MTMCWA would save approximately $78,000 over the
3-year period by doing the work with civil service em-
ployees. Accordingly, on examining the figures, Goert-
zen announced a tentative conclusion that the forklift
work would be done "in-house as a result of the bid
opening."
Goertzen's conclusion was subject to a public review
and appeal period. During this time period, the losing
bidders were permitted to examine the bid documents
and appeal the tentative award to the MTMCWA comp-
troller's office in Oakland. Profumo, Martin, and Globe-
Wally's Forklift Company indicated their desire to do so
" Copies of the letter were mailed to Profumo and Martm.
11 Each was for a period of 3 years
12 Young was the only bidder who attended the bid opening session
TEAMSTERS LOCAL 70 (DEPT. OF DEFENSE) 1229
and filed appeals, respectively, specifying why they did
not believe the Army's "bid" for the work was either ac-
curate or realistic. On consideration of the appeals, on
December 2, 1982, an administrative 'appeals board, ap-
pointed by an official of MTMC, concluded that the
Army's estimate of doing the work with its own civilian
employees had not materially deviated from any current
cost-accounting directives and was essentially accurate,
subject to "some adjustments." The appeals, therefore,
were denied. On December 22, Goertzen wrote to each
bidder that the decision to perform the commercial truck
loading and unloading at Pier 7 "in-house" was fmal and
that, effective January 10, 1983, the Government would
assume that work.' 3
Subsequent to the Army's announcement, Jack Spratt
repeated his threat of September 16. Thus, on January 14
and February 4, in separate conversations, Spratt warned
that Respondent would picket the Base if the forklift
work was assigned to civil service employees of the
Army. He followed these verbal threats with a telegram,
dated February 10, reading, "This will advise you that .
[Respondent] will commence picketing of the Depart-
ment of the Army on February 22, 1983 because of your
decision to deprive [Profumo and Martin] of work."
Meanwhile, having apparently postponed the implemen-
tation of the December 22, 1982 decision for 1 month,
MTMCWA's counsel, Gerald Flannery, wrote to both
Profumo and Martin on February 11, advising each that
Government personnel would commence loading!-
unloading commercial trucks at Pier 7 on February 18
and that their respective equipment should be removed
from that area within 1 month. On February 15, Re-
spondent's attorney sent the following letter to Flannery:
Dear Mr. Flannery:
There seems to be some confusion on the part of
the Oakland Army Base with respect to the purpose
of Local No. 70's intended picketing.
Please be advised that the sole purpose of Local
No. 70's picketing will be to exercise its First
Amendment right to petition -the government to re-
verse its decision which will adversely affect the
employment of Tony and Mike, who have worked
at the Army Base for many, many years. There will
be no other purpose whatsoever to the picketing.
Specifically, Local No. 70 disavows any state-
ments which may have been made by any of its
agents to the effect that Local No. 70 will unlawful-
ly induce or encourage employees of neutral em-
ployers to cease performing work, or handling
goods or otherwise performing services in an effort
to induce their employees to cease doing business
with the Army. Specifically, Local No. 70 does not
wish to enmesh any neutral employers or other per-
sons in our dispute with the Oakland Army Base.
We specifically disavow any statements to the con-
trary.
13 It is not in dispute that the Army followed all applicable statutory
requirements during the bidding period or that it was technically accu-
rate in its assignment of the work to in-house personnel.
If the Oakland Army Base believes that any such
statements were made which would suggest an un-
lawful secondary object, please advise me at once.
We will do everything in our power to disavow
those statements and to communicate with those in-
dividuals so as to correct any misimpression which
they may have.
If any of these statements were made to neutral
employers, please advise us at once so that we may
communicate with them the purpose of our picket-
ing.
Finally, please be assured that Local No. 70 will
picket only at those locations where the Army is
doing business. If lawful reserved, gates are estab-
lished, we will picket at those gates which are re-
served for the employees, suppliers and visitors to
the Oakland Army Base. We do not intend to picket
any neutral employers.
I want to make it clear that should you feel there
is any unlawful conduct on the part of Local No. 70
you should contact me at once and I will attempt to
straighten out any such problems.
Thereafter, on February 16 and again on February 18,
Spratt repeated his threat to picket at the Base as a result
of the reassignment of the forklift work. Nevertheless,
the Army's decision was implemented, as scheduled, on
the latter date, with civilian MTMCWA personnel per-
forming the work heretofore performed by Profumo and
Martin. As yet, there has been no picketing by Respond-
ent.
B. Analysis
There has, of course, been a significant body of work
produced regarding the meaning of Section 8(b)(4)(B) of
the Act. 14 Insofar as is relevant to the instant controver-
sy, it is clear that the main concern of Congress, in en-
acting that provision and its predecessor, the old Section
8(b)(4)(A), was the forced involvement of neutral third
parties in labor disputes not their own, and that, al-
though not mentioned in the final wording of either pro-
vision, this Congressional concern was focused on the
"secondary boycott," whereby a labor organization,
14 Sec. 8(b) of the Act provides, in relevant part, as follows
It shall be an unfair labor practice for a labor organization or its
agents—
(4)(0 to engage m, 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 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 (A) 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, or forcing or requiring any other employer to
recognize or bargain with a labor organization as the representative
of his employees unless such labor organization has been certified as
the representative of such employees under the provisions of section
159 of this title, Provided, that nothing contained in this clause (13)
shall be construed to make unlawful, where not otherwise unlawful,
any primary strike or primary picketing.
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rather than exerting pressure against the employer with
whom it is engaged in some sort of a dispute, pressures
an unoffending third party with an object of forcing the
latter to, in turn, exert pressure against the disputant em-
ployer to acquiesce to the labor organization's demands.
Thus, Senator Taft, the Senate sponsor of the 1947
amendments, remarked that "this provision makes it un-
lawful to resort to a secondary boycott to injure the
business of a third person who is wholly unconcerned in
the disagreement." Legislative History of the Labor-Man-
agement Relations Act 1947, vol. 2, 1106. Or, as stated by
a court, the central legislative purpose was to "wall off"
the pressures of another conflict from neutral, unin-
volved employers. Maritime Union v. NLRB, 346 F.2d
411, 417 (D.C. Cir. 1965). As stated by another circuit
court of appeals, however, Section 8(b)(4)(B) "was not
meant to prohibit primary activity. [It was] directed only
at secondary boycotts whose 'core concept' is union
pressure directed at a neutral employer." Griffith Co. v.
NLRB, 545 F.2d 1194, 1199 (9th Cir. 1976). In order to
make certain that such was, indeed, the interpretation of
Section 8(b)(4)(B), Congress, in the 1959 amendments,
added a proviso to this provision that very carefully
privileges primary picketing and protects a labor organi-
zation's right to engage in a primary strike. As the Su-
preme Court has noted, "Section 8(b)(4)(B) is . . . the
product of legislative compromise and also reflects a
concern with protecting labor organizations' right to exe-
cute legitimate pressure aimed at the employer with
whom there is a primary dispute. This primary activity is
protected even though it may seriously affect neutral
third parties." NLRB v. Operating Engineers Local 825,
400 U.S. 297, 303 (1971). Indeed, the Court, 20 years ear-
lier, specifically concluded that by engaging in a primary
strike and picketing at the struck employer's facility, a
labor organization did not violate Section 8(b)(4) of the
Act notwithstanding that employees of neutral employers
were induced and encouraged not to cross the picket line
and, thereby, they refused to make deliveries. That sec-
tion of the Act was deemed to not "interfere with,
impede or diminish the union's traditional right to
strike." Rice Milling Co. v. NLRB, 341 U.S. 665 (1951)."
Although, as in the instant case, the distinction is often
difficult to perceive, what is required in any analysis of
cases arising under Section 8(b)(4)(B) of the Act is a
classification of conduct as either primary (involving the
disputant employer) or as secondary (involving the neu-
tral, or third, party). Operating Engineers Local 825, supra
at 303. In this regard, the Supreme Court has provided
an analytical tool—"whether, under all the surrounding
circumstances, the Union's objective . . . [is] tactically
calculated to satisfy union objectives elsewhere." Nation-
al Woodwork Mfg. Assn. v. NLRB, 386 U.S. 612, 644
(1967).
15 This is not to say that picketing at the struck employer's premises in
an industrial context is necessarily always primary in nature. Thus, where
the plant is actually a common situs such as the Oakland Army Base, at
which employees of, at least, two contractors of MOTBA work, reserve
gates may be established for any employees of contractors. In certain cir-
cumstances, the striking employees are not permitted to picket the struck
employer at these entrances. Electrical Workers Local 761 (General Elec-
tric) a NLRB, 366 U.S 667 (1961).
On the surface, the instant controversy appears to be
one clearly primary in nature. Thus, no more than two
parties, Respondent and the DOD, seem to be involved,
and their dispute concerns the latter's withdrawal of
work (the commercial forklift services at Pier 7 on the
Base) from two licensees and awarding of the same to its
own civilian employees. Further, the only "person" re-
motely capable of resolving the dispute is the DOD, and
Respondent's threats have only involved picketing at the
Base, the situs of the dispute. Musicians Local 688 (Or-
chestra Leaders), 186 NLRB 646, 649-650 (1970); Ameri-
can Guild of Variety Artists (Harrah 's Club), 176 NLRB
580 (1970). Also, there is no record evidence, nor any
contention, that Respondent has been engaged in any
sort of a dispute with any other entity at all involved in
this matter—not with MTC or IMCS, nor with any sup-
plier of the DOD doing business at the Base. In apparent
recognition of this seemingly primary dispute, and to
force the conclusion that Respondent's acts fall within
the proscriptions of Section 8(b)(4)(B) of the Act, the
General Counsel and the Charging Party have woven an
intricate matrix of interrelated arguments, all designed to
establish and portray the DOD (and its subentities, the
Army and MTMCWA) as, in reality, a neutral party to
Respondent's dispute. If, indeed, such an approach is
correct, one may suppose that the real objective of Re-
spondent, the Supreme Court's "elsewhere," would
become readily apparent. In this regard, however, the
General Counsel conceded that a result of its proffered
analysis would leave as unidentified the actual, primary
disputant."
The initial argument, advanced in support of the thesis
that no primary dispute exists between Respondent and
the DOD, concerns the stipulated status of Profumo and
Martin as independent contractors and, in effect, states
that no primary labor dispute may exist in such "unique"
circumstances. In support, the General Counsel points
out that, because of the status of both Profumo and
Martin, Respondent's conduct could not concern any in-
dividual employed by any "person" or any employer,
Respondent is not seeking that the DOD make them its
own employees, and Respondent could not, and does
not, claim to be representing the individuals as employ-
ees of the DOD or of any other employer. Accordingly,
counsel finds determinative, as to the validity of the
aforementioned assertion, "the fact that there are no em-
ployees on behalf of whose interests Respondent is en-
gaging in this conduct." Contrary to counsel, I do not
believe the status of Profumo and Martin as independent
contractors detracts from the existence of a primary
labor dispute between Respondent and the DOD and
rely on the Board's holding in Painters Local 171 (Centric
Corp.), 218 NLRB 944 (1975). Therein, Centric Corpora-
tion and Woerfel-Towne Construction Co., both general
contractors and unrelated business entities, were engaged
in the construction of separate buildings at Peterson
Field, a United States Air Force installation in Colorado.
Each had a contract with the United States Army Corps
16 At the hearing, counsel asserted that her obligation, rather than to
identify the true primary, was solely to establish that the DOD is not that
"person" She offered no decisional support for this point.
TEAMSTERS LOCAL 70 (DEPT. OF DEFENSE) 1231
-
of Engineers for the construction work. Quality Wall,
Inc., a nonunion contractor, was a subcontractor to
Woerfel-Towne for painting work on its construction
project. One day, two employees of Quality complained
to the respondent union that they were receiving wages
that were below the prevailing scale required for Federal
construction projects. As this had previously been a
matter of concern, agents of the union sought to obtain
confirming information from Air Force personnel at Pe-
terson Field, but said requests were refused. Shortly
thereafter, the union picketed at the entrance to Peterson
Field with signs, protesting the "unfair wages paid by"
Quality; 2 or 3 days later, the union altered the message
on the picket signs to state: "U.S. Air Force and U.S.
Corps of Engineers does not enforce federal laws and
regulations. . ." Picketing with the latter sign legend
continued at this and another location away from Peter-
son Field for approximately 2 weeks; employees of con-
tractors working at both construction projects honored
the pickets and did not work during this time period.
During the time of the picketing, a union official was
quoted in a newspaper article as regarding that the pur-
pose of the picketing was to advertise the Government's
interpretation of the applicable law. Finally, the picket-
ing ceased after the union was assured the Department of
Labor would investigate the dispute relating to the Fed-
eral regulations. The Board concluded that the respond-
ent union's conduct was not violative of Section
8(b)(4)(i) and (ii)(B) of the Act. Although unstated, it is
crystal clear that the basis for this determination was the
Board's conclusion that a primary labor dispute existed
between the respondent union and both the Air Force
and the Army Corps of Engineers. This must, indeed, be
the case as the Board emphasized the following points:
the issue of compliance with Federal wage regulations
had been a matter of concern to the respondent union,
the wording on the altered picket signs, the quote that
was attributed to a union official in the newspaper arti-
cle, and the cessation of picketing by the union on assur-
ances that the Government's compliance with the Feder-
al wage regulations would be investigated. What is di-
rectly pertinent to the instant matter regarding the exist-
ence of a primary labor dispute in Centric Corp. is that,
as in this case, the respondent union did not represent—
and, therefor; seemingly could not have acted on behalf
of—any employees of the employer/persons involved in
that dispute. Further, as herein, the underlying dispute in
Centric Corp. was between unrepresented employees and
their employer; thus, the union, as respondent, was in the
position of an interloper in a controversy not its own.
Despite the foregoing, the Board still determined the ex-
istence of a primary labor dispute. Accordingly, it must
logically follow that such exists between Respondent and
the DOD, especially given the membership of both Pro-
fumo and Martin in Respondent, and Respondent's long-
standing, as admitted by Flannery, interest in the reas-
signment of the forklift work at Pier 7 from the individ-
uals.
The General Counsel seeks to distinguish Centric Corp.
on grounds that, contrary to the stipulated situation, the
individuals who complained to the respondent union
were employees of an involved employer. Therefore,
counsel asserts, as neither Profumo nor Martin is a statu-
tory employee, Respondent could not have been acting
on behalf of any employee. I believe such a distinction is
a meaningless one. Thus, Section 2(9) of the Act defines
a "labor dispute" as including "any controversy concern-
ing terms, tenure or conditions of employment . . . re-
gardless of whether the disputants stand in the proximate
relation of employer and employee!' Analysis of deci-
sions, in which the provision has been discussed, dis-
closes that it has traditionally been given a broad con-
struction. Teamsters Local 812 v. NLRB, 657 F.2d 1252
(D.C. Cir. 1980); Maritime Union v. NLRB, 342 F.2d 538,
541-542 (2d Cir. 1965); City of Juneau, supra at 893.
More specifically, the court in Teamsters Local 812
stated, "Congress explicitly stated that labor disputes are
not limited to controversies in which 'the disputants
stand in the proximate relation of employer and employ-
ee' . . . and the phrase 'any controversy concerning
terms, tenure or conditions of employment' . . . is gener-
al enough to include a situation in which a union exerts
pressure on businesses to preserve the economic foundation
of its members' livelihoods. When the courts have drawn
boundaries around the area of 'labor disputes,' they have
done so only to exclude from that category controversies
in which a union acts out of a political interest . . .
which in no way enhances the distinct economic interests
of its members." (Emphasis added.) Teamsters Local 812,
supra at 1258 fn. 11. The instant controversy surely falls
within such broad guidelines. MTMCWA's reassignment
of the forklift work to its own civilian employees clearly
affected the tenure of the licenses of Profumo and
Martin, both members of Respondent, to perform the
commercial forklift work at Pier 7, and Respondent's
conduct would go to attempting to preserve—or save—
their livelihoods. Moreover, the Board has previously
found that Respondent represents "employees" of other
employers who perform "Iumper" work—forklift
loading/unloading operations. Lucky Stores, 243 NLRB
642 (1979). The record warrants the inference that
among the motivating factors behind Respondent's con-
duct was its contention, in appealing the validity of the
Army's cross-comparison, that MTMCWA awarded the
forklift loading/unloading work to its civilian employees
based on unrealistically low cost projections. In these
circumstances, by protesting the reassignment of this
work from Profumo and Martin, Respondent, to some
degree, was attempting to preserve the area standards es-
tablished for its membership. Contrary to the General
Counsel, therefore, I believe that the independent con-
tractor status of Profumo and Martin does not detract
from the existence of a primary labor dispute between
Respondent and the DOD.
Next, it is urged that the DOD must be a neutral party
to Respondent's instant dispute as Federal statutes man-
dated that MTMCWA award the commercial forklift
work at Pier 7 to its own employees. In support, the
Charging Party points out that the Army scrupulously
adhered to the requirements of the applicable statutes
and regulations in conducting the competitive bidding
procedure utilized in the instant case; that, pursuant
thereto, the Army had no choice but to award the work
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS-BOARD
to its own employees, who would perform the work at
the lowest cost to the Army; and that the Army possess-
es no authority, under the applicable statutes, to accede
to Respondent's demand that the work be reassigned to
Profumo and Martin. In short, it is argued, the DOD has
no "right to control" the award of the disputed work
and, therefore, is a neutral party in this case. Counsel is,
of course, correct that the "right-to-control" test is an
analytical device that is utilized by the Board and the
courts in Section 8(b)(4)(B) cases in order to ascertain
whether a labor organization's conduct is primary or sec-
ondary, calculated to satisfy its objectives elsewhere. In
NLRB v. Plumbers Local 638, 429 U.S. 507 (1977), the
Supreme Court sanctioned its use in cases involving
work-preservation issues, which, it is asserted by the
General Counsel and by the Charging Party, must have
been Respondent's motivation for its instant conduct.
Therein, the Court cited, with approval, the Board's
most significant decision on the issue, Plumbers Local 438
(George Koch), 201 NLRB 59 (1973), affd. 490 F.2d 323
(4th Cir. 1973). Plumbers Local 638, supra at 523 fn. 11.
Although the analysis is categorized as right-to-control,
however, it is clear that such is, in reality, a misnomer
and that said analysis is never so mechanical as is seem-
ingly implied. George Koch, supra at 64. Thus, what the
Board does attempt to ascertain by this analysis is wheth-
er the pressured party is "truly an `unoffending employ-
er' who merits the Act's protections," and among the
factors considered is how the employer came to be in
that position. Id. Utilizing these principles in the instant
analysis, I note that the Charging Party has missed the
point by attaching great emphasis to the bidding proce-
dure and the Army's adherence to the statutes in that
regard. Rather, the critical fact is that it was the Army's
decision, and its decision alone, to, at the outset, take the
forklift work away from Profumo and Martin. Moreover,
the record establishes that the Army instituted the strict-
ly controlled competitive bidding procedure after
MTMCWA had, in 1981, planned to just commence uti-
lizing its own civilian personnel to perform the work,
after MTMCWA recommended that the dictates of
OMB Circular A-76 need not be followed, and after the
dismissal, in part based on a conclusion that the Army
possessed the right-to-control the work in question, of
the unfair labor practice charge in Case 32-CC-569.
Based on the foregoing, while there may have been valid
reasons for doing so, it is unmistakably clear that the
Army placed itself in its present circumstances, it, there-
fore, can hardly be said that the DOD lacked control
over the circumstances to the extent to cause it to be an
unoffending neutral party to Respondent's dispute.
The next argument, advanced by both the General
Counsel and the Charging Party, relies on Respondent's
admission that an object of its threats "has been to force
or require DOD to change its method of conducting its
business" and "to reverse its decision which will adverse-
ly affect the employment of [Profumo and Martin]."
From this, they assert that the object of Respondent's
conduct was nothing more than work preservation—
seeking to protect its members' work—and that, inas-
much as for this type of a primary labor dispute to exist
there must be a collective-bargaining relationship be-
tween the labor organization and the alleged primary
employer, the DOD must be considered a neutral in the
instant circumstances as no collective-bargaining rela-
tionship exists between it and Respondent. Although
technically accurate and logical, I, nevertheless, find this
argument without merit in the circumstances of this un-
usual case. The seminal decision in the matter of work
preservation is, of course, the Supreme Court's National
Woodwork decision supra. Although not particularly be-
laboring the point regarding the alleged violation of Sec-
tion 8(b)(4)(B) of the Act," the Court discussed the col-
lective-bargaining agreement between the Carpenters
Union and the primary disputant, Frouge, which con-
tract contained a work-preservation clause, and conclud-
ed that the provision was not violative of Section 8(e) of
the Act. The Court' concluded, therefore, that a strike by
the union against Frouge for allegedly violating the
clause by ordering and installing prefabribated doors did
not violate Section 8(b)(4)(B). In Carpenters Local 112,
217 NLRB 902 (1975), enfd. 574 F.2d 457 (9th Cir.
1978), an administrative law judge, affirmed by the
Board, emphasized the collective-bargaining relationship
in National Woodwork, writing that a labor organization
cannot assert the existence of a primary work-preserva-
tion dispute where "no . . . bargaining relationship
exists." Carpenters Local 112, supra at 917. In this regard,
he concluded that, without such an established relation-
ship, "there will be nothing that can be preserved." In
Carpenters Local 112, the respondent labor organization,
which had a collective-bargaining agreement containing
a work-preservation clause, with building contractors,
and was seeking its traditional jobsite carpentry construc-
tion work on houses, picketed outside the facility of a
builder of prefabricated homes. Utilizing his above-stated
analysis, the administrative law judge found that the
manufacturer was, in reality, a neutral because of the
lack of a collective-bargaining relationship and that,
therefore, the union's objectives were elsewhere—the
jobsite work in dispute. Analysis of that factual situation
discloses that the union's picketing was far removed
from the situs of the labor dispute—an important consid-
eration in determining whether a union's pressures are of
a primary or secondary nature. Harrah 's Club, supra. In
contrast, Respondent's threats involved picketing at the
situs of the labor dispute, the Oakland Army Base.
Second, although not formalized by a collective-bargain-
ing agreement, the DOD and Respondent most certainly
had a longstanding bargaining relationship regarding
Profumo and Martin. The instant factual context suggests
a relationship akin to that established by an employer's
"voluntary" recognition of a labor organization as the
representative of its employees. Thus, in Capitol Theatre,
231 NLRB 1370 (1977), the Board found that a union
was the bargaining representative of a group of employ-
17 The Charging Party makes much of the Court's language, "The
touchstone [of work preservation] is whether the agreement or its mainte-
nance is addressed to the labor relations of the contracting employer vis-
a-vis his own employees" National Woodwork, supra at 645. I note, how-
ever, that at 646 of its decision, the Court emphasized this was significant
in determining whether an alleged primary work-preservation contractual
provision is proscribed by Sec. 8(e) of the Act, the primary section of the
Act considered by the Court.
OF DEFENSE) 1233TEAMSTERS LOCAL 70 (DEPT.
,--
ees based on their employer's de facto recognition of it
(the parties had established an ongoing relationship after
the employer had voluntarily met with union representa-
tives to discuss employee problems). Attorney Flannery
admitted that not only did he meet with Respondent
over the years whenever job-related problems, including
the instant dispute, arose regarding Profumo and Martin,
but he also considered Respondent as their representa-
tive. These distinctions are crucial as they demonstrate
that Respondent's interests were not "elsewhere" as in
Carpenters Local 112, supra.
The two cases, on which the General Counsel and the
Charging Party rely most heavily in their work-preserva-
tion arguments are Teamsters Local 816 (Montgomery
Ward), 127 NLRB 1059 (1960); Electrical Workers IBEW
Local 399 (Illinois Bell), 235 NLRB 555 (1978). 18 Re-
garding each, it is asserted that, inasmuch as the respec-
tive respondent unions had no collective-bargaining rela-
tionship with the picketed employer, the picketing of
each, ostensibly to preserve the work of members, must
have been calculated to achieve results elsewhere. There-
fore, the picketed employers must have been neutral par-
ties. In fact, in both cases, the true primary disputes were
quite simple to discern. In Montgomery Ward, supra, the
affected individuals were employed by a company that
contracted with Montgomery Ward" to perform the lat-
ter's delivery work. Each employee was a member of the
respondent union, and the union had a collective-bargain-
ing agreement with the delivery company. Montgomery
Ward abruptly canceled this delivery contract and subse-
quently contracted with another company for delivery
services. As a result, the affected employees were laid
off by their employer. In its members' behalf, a union
agent demanded that the new delivery contractor recog-
nize and enter into a bargaining agreement with the re-
spondent union. The demand was rejected; the union re-
taliated by picketing Montgomery Ward. In Illinois Bell,
supra, the State of Illinois contracted with the telephone
company for the providing and maintaining of telecom-
munications equipment. Although telephone company
employees, represented by the respondent union, had tra-
ditionally performed all maintenance work; the State de-
cided to utilize its own employees to do such work. The
union, therefore, filed a grievance, pursuant to its con-
tract with the telephone company, asserting that the
latter had been in violation of the agreement by permit-
ting the state to perform maintenance work on telephone
company-owned equipment. Without a satisfactory reso-
lution, the union picketed outside state buildings. Based
on the foregoing, it is evident, and the Board concluded,
that the primary dispute in Montgomery Ward was be-
tween the union and the new delivery contractor, who
refused to recognize the union, and that the primary dis-
pute in Illinois Bell was between the union and the
former, against which the union had filed a grievance re-
garding an alleged contract violation. In each case, the
12 In Illinois Bell, supra, the Board did reject a work-preservation de-
fense on grounds the Respondent union had no collective-bargaining rela-
tionship with the State of Illinois.
19 Although unclear, the respondent union contended that the affected
employees were employed by Montgomery Ward and that, therefore, the
picketing was primary. Such was rejected.
picketing clearly was aimed at achieving results else-
where, and the respective unions' lack of interest in the
labor relations of the picketed employer made it evident
that it was a neutral party and that the picketing was but
a sham to disguise the true object of such. In contrast,
such analysis fails, for there is no other arguable primary
in whom Respondent has any conceivable interest but
the DOD—there exists no "elsewhere." Although in the
traditional work-preservation sense, Respondent's threats
were, and are, not directed at the DOD's labor relations
vis-a-vis its own employees, clearly Respondent has, at
all times, exhibited a representational interest, in general,
as to Profumo and Martin, with the admitted assent of
the Army despite their independent contractor status
and, in particular, as to the specifics of the instant dis-
pute. Also, the locus of the problem is at the Base, and
its merits concern no other person no matter how re-
motely involved. Although it is recognized that, concep-
tually, the instant factual context does not easily fit into
that of typical work-preservation cases (given the lack of
a formal collective-bargaining relationship and the status
of Profumo and Martin as independent contractors), it is
also true that the unusual circumstances of this matter,
including the admitted acquiescence of the Army in rec-
ognizing Respondent as the representative of both indi-
viduals and the lack of any other identifiable primary ob-
jective for Respondent's conduct other than has been ad-
mitted, demand that, what I perceive to be, the primary
work-preservation objectives of Respondent be recog-
nized as such."
As a fourth argument designed to establish the second-
ary nature of Respondent's actions, the General Counsel
asserts that since the "sole objective" of the admitted
threats was to force the DOD to abandon its normal pro-
cedures for contracting out work, an object proscribed
by Section 8(b)(4)(B) of the Act, the actions must not be
primary. Counsel gains support for this view from Oper-
ating Engineers Local 825, supra, in which the Supreme
Court concluded that such was cognizable under the
cease-doing-business language of that provision. Id. at
304-305. Contrary to counsel, however, notwithstanding
that the objectives of a labor organization's conduct are
literally proscribed by Section 8(b)(4)(B) of the Act, if
said conduct is primary in nature, it is not unlawful no
matter the objective. Rice Milling, supra at 670-673. This
is especially so in light of the proviso, privileging pri-
mary strikes and primary picketing. The record warrants
the conclusion that Respondent's threats were primary in
nature, directed against the employer with whom it was
engaged in a labor dispute, and at the situs of the dis-
pute. In these circumstances, I fail to see the unlawful
2 ° The Charging Party spent considerable space in its brief postulating
that Respondent would contend that both Profumo and Martin are
"quasi-employees" and arguing that no primary work-preservation picket-
ing in their behalf by Respondent could be lawfully accomphshed I have
not adopted this approach and, accordingly, have not considered coun-
sel's argunients in that regard. He further argues that, if both were em-
ployees of the Army, the latter could not agree to the demands of Re-
spondent. That question is not before me, and I will not attempt to inter-
pret the cited statutes to answer it. The only question before me concerns
whether Respondent's threats to picket on behalf of two independent
contractors were violative of Sec 8(b)(4XB) of the Act.
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nature of such conduct, notwithstanding its allegedly un-
lawful objective. Moreover, analyzing Operating Engi-
neers Local 825, reveals that the Supreme Court deter-
mined as unlawful a labor organization's coercive con-
duct of forcing a neutral to, in turn, pressure a primary
to alter its business procedures. As the record makes
clear, pressures were directed by Respondent against the
DOD to change its own business practices. It is my con-
clusion that such pressures were primary and the effects
of such on neutral persons, MTC, IMCS, and the suppli-
ers to the DOD at the Base were incidental to such pri-
mary pressures at the locus of Respondent's dispute.2'
Finally, the Charging Party asserts that even if the
record warrants the conclusion that a dispute exists be-
tween the DOD and Respondent, "there is no such thing
as a 'primary dispute' with a federal government agency
for which a union can lawfully use [picketing aimed at
appealing to employees of suppliers, common carriers, or
other contractors]. . . . within the meaning of Section
8(b)(4)(B)." Recognizing that the courts and the Board
have traditionally interpreted the provision as not ren-
dering unlawful a union's primary picketing at the prem-
ises of the struck employer, counsel contends, neverthe-
less, that "there is not now and never was a traditionally
accepted right to use such economically coercive tactics
in a labor dispute with a federal government agency. In-
stead, Congress had consistently assumed that picketing
to disrupt the operations of a federal agency is an unlaw-
ful practice." In support, he cites to a statement of Con-
gressman Lott during debates over the Civil Service
Reform Act in 1978. However, I note that the Congress-
man's comments regarding picketing of a Federal agency
came more than 30 years after the 1947 amendments to
the Act and approximately 20 years after the 1959
amendments, that he was not, I believe, a member of
Congress during either time period, and that, in any
event, he was not directing his comments to the provi-
sions of the Act. Counsel has pointed to nothing in the
legislative history of either of the amendments to suggest
that Congress intended that a labor organization could
not engage in a primary labor dispute with the Federal
Government or that Congress meant that primary picket-
ing of a Federal agency must be found presumptively un-
lawful under Section 8(b)(4)(B) of the Act. Also, if, as
argued, Congress has "consistently" held this attributed
view, one might inquire why, over the past 24 years, has
not the Act been amended to reflect what, counsel as-
serts, is the sentiment of Congress. In short, the Act does
not stand for the asserted proposition. Moreover, the
Board itself does not ascribe to the proposition of coun-
sel, having found the respondent labor organization's
picketing in Centric Corp., supra, not violative of Section
8(b)(4)(B).
2s Par. 9 of the complaint sets forth as an object of Respondent's
threats that the DOD cease doing business with MTC, IMCS, and other
persons. There is no record evidence to support the finding of such an
object.
22 Attempting to rationalize the holding of the Board in Centric Corp.
with his position, counsel contends that the union's picketing therein was
informational and not intended or calculated to disrupt the Government's
operations and argues that these factors were crucial to the Board's deci-
sion. Contrary to this position, I believe that the crucial factors in that
states that "when the circumstances indicate that picket-
ing at the premises of a struck employer is aimed primar-
ily . . . at the employees of other employers with [a
cease-doing-business objective] . . . then the picketing is
secondary and unlawful" and cites to the Supreme
Court's General Electric, supra, decision. The Court in
that case, however, was concerned with the matter of
entrances that were designated specifically for allegedly
neutral employers and their employees, picketing by the
labor organization at the entrances, and the effects of
such picketing when the dispute is with the struck owner
of the facility and not with the picketed employers.
There is no suggestion that the DOD ever designated en-
trances for any employees of contractors or suppliers, or
that Respondent picketed or threatened to picket at such
locations. General Electric does not stand for the broad
proposition postulated by counsel. Accordingly, I find
this contention, which is not the position of the General
Counsel, to be utterly without merit.
In sum, this case appears to be one in which the Gen-
eral Counsel and the Charging Party lost sight of reality
and made the Board and court tests, for determining the
identity of a neutral party to a labor dispute, the "ends"
rather than the "means" in that process. The reality is as
has been described above. Accordingly, based on the
foregoing, I find that, at all times material, Respondent
has been engaged in a primary labor dispute with the
DOD and that its threats of picketing were in further-
ance thereof. Accordingly, I will recommend dismissal
of the complaint, which alleges that Respondent's con-
duct was violative of Section 8(b)(4)(ii)(B) of the Act.
Carpenters Local 2362 (Phost Construction), 259 NLRB
899 (1982); Centric Corp., supra.
CONCLUSIONS OF LAW
1. The DOD (and its subentities, the Army and
MTMCWA) is a person engaged in commerce within the
meaning of Section 2(1), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(b)(4)(ii)(B) by
threatening to picket at the Oakland Army Base unless
the DOD reassigned the commercial loading/unloading
work at Pier 7 on the Base to Mike Profumo and Tony
Martin, both of whom are members of Respondent but,
not employees of the DOD.
On the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I recommend the issuance of the
following23
ORDER
The complaint shall be dismissed in its entirety.
case were those revealing the pnmary labor dispute with the Air Force
and the Army Corps of Bngineers. Put another way, the type of picket-
ing and the effect of such were not the crucial factors.
22 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
22 In further support of his contention, counsel