Teamsters Local 247 (Rymco)

National Labor Relations Board - Board Decisions

Nov 8, 2000

332 N.L.R.B. 1230 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1230
Local 247, International Brotherhood of Teamsters,
AFL–CIO and Rymco, Inc. Case 7–CC–1715
November 8, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On December 13, 1999, Administrative Law Judge
Jerry M. Hermele issued the attached decision. The Re-
spondent Union filed exceptions and a supporting brief
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated 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 and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order, as modified and
set forth in full below.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Local 247, International Brotherhood of
Teamsters, AFL–CIO, Detroit, Michigan, its officers,
agents, and representatives, shall
1. Cease and desist from threatening to picket or en-
gage in a strike against John Carlo, Inc. or Rymco, Inc.,
where an object thereof is to force or require John Carlo,
Inc. to cease doing business with Rymco, Inc., or any
other person engaged in commerce.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 In view of the Board’s finding that the Respondent made a direct
threat against the neutral employer, Member Liebman finds it unneces-
sary to pass on the separate allegation regarding the threat which was
communicated only to the primary employer and not reported to the
neutral employer. Member Liebman questions the continuing validity
of Wackenhut Corp., 287 NLRB 374 (1987) (Member Dennis dissent-
ing), and Tri-State Building & Construction Trades Council, 272
NLRB 8 (1984), affd. sub nom. Boilermakers Local 105 v. NLRB, 781
F.2d 569 (6th Cir. 1986), on which the judge relied, and which found
unlawful threats which are communicated only to the primary and not
to the secondary employer.
3 We will modify the judge’s recommended Order and notice to in-
clude the narrow injunctive language which is appropriate for the
8(b)(4)(ii)(B) violations found.
(a) Within 14 days after service by the Region, post at
its business office and at all meeting halls in Detroit,
Michigan, copies of the attached notice marked “Appen-
dix.”4 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(b) Within 14 days after service by the Region, sign
and return to the Regional Director sufficient copies of
the notice for posting by John Carlo, Inc. and Rymco,
Inc., if they are willing, at all places where notices to
employees customarily are posted.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT threaten to picket or engage in a strike
against John Carlo, Inc. or Rymco, Inc., where an object
thereof is to force or require John Carlo, Inc. to cease
doing business with Rymco, Inc., or any other person
engaged in commerce.

LOCAL 247, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–
CIO

Kristen M. Niemi, Esq., for the General Counsel.
Samuel C. McKnight, Esq. (Klimist, McKnight, Sale, McClow
& Canzano, P.C.), of Southfield, Michigan, for the Re-
spondent.
George M. Mesry and Frank T. Mamat, Esqs. (Clark Hill,
P.L.C.), of Detroit, Michigan, for the Charging Party,
Rymco, Inc.
4 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
332 NLRB No. 114
TEAMSTERS LOCAL 247 (RYMCO) 1231
DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, Administrative Law Judge. In a
June 24, 1999 complaint, the General Counsel alleges that the
Respondent, Local 247, International Brotherhood of Team-
sters, AFL–CIO (the Union), violated Section 8(b)(4)(ii)(B) of
the National Labor Relations Act by threatening a nonunion
subcontractor, Rymco, Inc. (Rymco), with the shutdown of the
construction project it was working on. The Union denied this
allegation in its July 7, 1999 answer, stating that it never threat-
ened Rymco. So, a trial was held in Detroit, Michigan on Sep-
tember 28, 1999, during which the complaint was amended
with the allegation that the Union also threatened the general
contractor, John Carlo, Inc., with shutdown of the project (Tr.
7, 173). At trial, the General Counsel called three witnesses
and the Union called one witness. Finally, on November 18
and 19, 1999, the General Counsel and the Union filed their
respective briefs.
II. FINDINGS OF FACT
John Carlo, Inc. (Carlo), is a road builder in the Detroit area.
Carlo’s vice president is Joseph Catenacci, who is also known
as Joe Carlo. The Company’s big project for 1999 was the
reconstruction of a seven-mile stretch of Interstate 275 outside
Detroit, a $65,000,0002 job it was awarded by the Michigan
Department of Transportation. Carlo started the I–275 job in
April 1999 and it was scheduled to be completed by October
28, 1999. For every day thereafter, Carlo would be assessed a
penalty of $50,000. But if the job was finished early, Carlo was
due $50,000 a day, up to 30 days. Carlo was a party to a 1998–
2003 collective-bargaining agreement between the Michigan
Road Builders Association and Michigan Teamsters Joint
Council 43, which includes Local 247. Carlo and its subcon-
tractors on the I–275 project purchased interstate material ex-
ceeding $50,000 (GC Exh. 1(e); R. Ex. 2; Tr. 12, 121–25).
One of the subcontractors on the I–275 job was Rymco, a
“disadvantaged business enterprise,” so classified by the State
of Michigan, in part, because of the Korean ancestry of its
President, Sonyoung Moore. Her husband, Richard Moore, is
Rymco’s Secretary-Treasurer.3 Rymco has 10 trucks and 13
employees, and its main business is hauling road construction
material. On the I–275 job, its task was to haul away pieces of
the old broken road. Rymco is nonunion and has worked on
various Carlo projects since 1994 (Tr. 18–20, 22, 24, 74, 97).
On December 18, 1998, Carlo Vice President Michael
Donohoe talked with Mrs. Moore about working as a subcon-
tractor on the I–275 job and they signed a contract that day
(G.C. Exs. 2–3; Tr. 21, 76–77, 89, 126). And on April 22,
1999, Rymco started working on the project (Tr. 98–99). Be-

1 Upon any publication of this decision by the National Labor Rela-
tions Board, “stylistic” changes may have been made by the Board’s
Executive Secretary to the original decision of the Presiding Judge.
2 The incorrect figure of $65,000 is reflected in the transcript, at p.
122.
3 Moore claimed that Sonyoung was not installed as President so that
Rymco could receive the advantage of the disadvantaged classification
(Tr. 114-15).
cause of rainy weather and/or the sporadic pace of the destruc-
tion of the existing road, Rymco worked only occasionally on
the job thereafter. But Michael Thomas, Carlo’s truck superin-
tendent, would call Mr. Moore daily to inform Rymco if and
where Rymco’s trucks would be needed the next day (Tr. 31–
32, 44, 100, 105–06, 126). In April and May 1999, Rymco
worked for 13 days on the I–275 job, and for other Carlo pro-
jects (Tr. 34, 108). On the I–275 job, Rymco billed Carlo for
$5500 to $5800 a day (Tr. 110). Also, Rymco worked on a
project at Detroit’s Metro Airport in the spring of 1999 for
another contractor (Tr. 74).
Tommy Aloisio is the recording secretary and construction
business agent for Local 247. Local 247 represented Carlo’s
employees on the I–275 job (Tr. 173–75). The Union had un-
successfully attempted to organize Rymco’s employees at the
jobsite (Tr. 178). On May 11, 1999, Aloisio wrote the follow-
ing letter to Catenacci:

This letter is to inform you that you are in violation of
Michigan Road Builders Agreement, Article XXII, Sub-
contracting.
. . . . .
At 11:30 a.m. this morning, an organizer from our Lo-
cal Union handed your superintendent on the I–275 road
project, a list of trucks who do not have a contract with or
belong to a Local in Joint Council 43, and obviously do
not observe wages and fringes established by this Agree-
ment.
I am hoping we can resolve this problem by tomorrow
morning. If not, this Local will take the proper steps to
correct the problem.

(GC Exh. 6.)
On May 25, Aloisio called Catenacci from his car telephone.
Union organizer Scott Domine was with Aloisio in the car.
Aloisio told Catenacci that there were several companies, in-
cluding Rymco, on the I–275 job that were not paying union-
level wages and benefits, and that he wanted Rymco to pay area
standards (Tr. 175–76, 205–06). Aloisio also said “get those
fucking non-union trucks off this job,” and named Rymco.
Otherwise, Aloisio said the Union would strike the I–275 job.
Catenacci responded that he had to use minority subcontractors
but that he would see what changes could be made (Tr. 128–
31). Aloisio, however, denied ever threatening Catenacci with
a work stoppage unless nonunion subcontractors were removed
(Tr. 180–81). He also denied, in a pretrial affidavit, telling
Catenacci that he wanted Rymco removed from the job, or that
he wanted Rymco to become union or pay area standards (R.
Exs. 5–6).
Catenacci then called back and gave Aloisio the name and
number of Mrs. Moore (Tr. 177). But Catenacci gave Mrs.
Moore a heads-up by calling her for the first time and telling
her that the Union was bothering him about Rymco (GC Exh. 5,
p. 1; Tr. 23–24). Then, Aloisio called her at 3:45 p.m. that day
and asked what Rymco was paying its drivers. Aloisio said
Rymco could not work on the I–275 project or anywhere else in
southeast Michigan because Rymco was nonunion and not
paying its employees enough. Aloiso added that Mrs. Moore
sounded like a foreigner. So, he reiterated that, in simple Eng-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
lish, Rymco’s employees must join the Union if it wanted to
work on the I–275 job. Aloisio further added that he would
also “shut down John Carlo.” Finally, Aloisio told Mrs. Moore
to respond by 5:00 p.m. with a positive answer, whereupon he
hung up (Tr. 25–27, 78–79). Mrs. Moore became very upset by
this conversation and, accordingly, talked to the police and
thought about taking legal action against Aloisio (Tr. 58, 71–
72). Aloisio denied telling Mrs. Moore that the Union would
shut down Carlo or that the Union would prevent Rymco from
working on other jobs (Tr. 181). Rather, Aloisio claimed that
he simply called Mrs. Moore and asked her what she was pay-
ing her employees and what kinds of fringe benefits Rymco
offered. He also claimed that he offered to meet with her and
negotiate a contract, but Mrs. Moore said she might want to
contact Local 614 instead. Then, according to Aloisio, Mrs.
Moore accused him of threatening her whereupon Mrs. Moore
hung up the telephone (Tr. 177–80).
Aloisio conceded that he called Catenacci again and told him
of his conversation with Mrs. Moore. Catenacci asked Aloisio
to “work with me on this” because he needed a lot of trucks for
the I–275 job (Tr. 180). Nevertheless, within minutes, Cate-
nacci instructed Thomas, the trucking superintendent, not to use
any Rymco trucks (Tr. 131). Because Thomas never called Mr.
Moore that afternoon, Mr. Moore called Thomas, who said that
Carlo could no longer use Rymco because it was nonunion.
The next day, May 26, Mr. Moore learned from Thomas that
union trucks were now doing Rymco’s job (Tr. 33, 101–03).
On May 27, 1999, Aloisio called Mrs. Moore again. He said
that he would shut down the Metro Airport job Rymco was
working on too. Mrs. Moore then hung up (GC Exh. 5, p. 3;
Tr. 28–29). Mrs. Moore then called someone at Carlo to get a
copy of her contract with Carlo for the I–275 project (GC Exh.
4; Tr. 76–77). According to Aloisio, however, he merely called
Mrs. Moore, after seeing Rymco trucks working at the airport,
to ask her about meeting to discuss a contract. Mrs. Moore
then asked why he continued to threaten her and she hung up
(Tr. 182).
On June 1, 1999, Rymco filed a charge against the Union
with the National Labor Relations Board’s Regional Office in
Detroit. On June 4, Catenacci gave an affidavit to a Board agent
which generally contradicted his trial testimony because, ac-
cording to Catenacci, he did not want any trouble from the
Union on the I–275 job (Tr. 163–64). Indeed, before signing
the affidavit, Aloisio conceded that Catenacci asked “what do
you want me to say?” According to Aloisio, he told Catenacci
to “tell them the truth” (Tr. 186–87). In the affidavit, Catenacci
said that Aloisio called him in May 1999 and merely said that
“all truckers on the job had to be union truckers.” But Cate-
nacci added in the affidavit that Aloisio said “if we used non-
union drivers on the job he would picket” and that he then in-
structed Thomas “try not [to] use any non-union truckers until
all of the union truckers were exhausted.” Finally, Catenacci
explained therein that “[t]he only reason Rymco is not working
on the project now is that its part of phase 1 has concluded. . . .
When we are ready to begin phase 2 we will call Rymco again”
(R. Exs. 3–4). But at trial, Catenacci explained that the first
part of the project did not end until approximately July 1 (Tr.
165).
On June 7, someone from Carlo called Mr. Moore to inquire
whether Rymco could return to work the next day. And
Rymco’s trucks did. This June 7 call was the first from anyone
at Carlo since May 26 (Tr. 103, 113). The Union never struck
or picketed the I–275 job (Tr. 149, 183). But Aloisio consid-
ered his May 11 letter to Catenacci to constitute a grievance
against Carlo (Tr. 183, 192–93).
III. ANALYSIS
Since 1947, Section 8(b)(4) of the Act has outlawed certain
types of secondary activity by unions against neutral employ-
ers. And since 1959, Section 8(b)(4)(ii)(B) has prohibited a
union from threatening, coercing, or restraining “any person
engaged in commerce or in an industry affecting commerce,
where in either case an object thereof is . . . to cease doing
business with any other person. . . .” Here, the General Counsel
alleges that Local 247 illegally threatened both the nonunion
subcontractor Rymco and the unionized, and neutral, general
contractor Carlo with a shutdown of Carlo’s entire operation
shortly after Rymco commenced its work on the I–275 project
in May 1999. The Union denies threatening anyone and, more-
over, offers the defense that it also had a labor dispute with
Carlo, thus neutralizing any violation of Section 8(b)(4)(ii)(B)
of the Act.
On the facts, the Presiding Judge concludes that the General
Counsel has indeed proven that union official Aloisio threat-
ened both Mrs. Moore and Catenacci. First, the trial demeanor
of all three witnesses supports the General Counsel’s case.
Mrs. Moore testified with the sincerity of righteous indignation
about Aloisio’s two threatening telephone calls. Catenacci
likewise testified in a sincere and forthright manner about
Aloisio’s threats. In this regard, Catenacci logically explained
that he denied at first, in a pretrial affidavit, that Aloisio made
any such threat because, as a union contractor, Carlo needed to
continue to work with Aloisio. As for Aloisio, his under-
whelming denials were further undercut by his pretrial affida-
vit, which he contradicted at trial, denying that he ever told
Catenacci that the Union wanted Rymco “to become union or
pay area standards.” In short, Mrs. Moore and Catenacci were
compelling witnesses and Aloisio was not. Second, it is sig-
nificant that the Union inexplicably failed to call organizer
Scott Domine as a witness, who was present in Aloisio’s car
when Aloisio threatened both Catenacci and Mrs. Moore and
was apparently present at the trial.4 Thus, it must be presumed
that Domine would have backed up the testimony of Catenacci
and Mrs. Moore. See International Automated Machines, 285
NLRB 1122 (1987). Accordingly, Aloisio’s unsupported ver-
sion is far outweighed by the actual testimony of two other
witnesses—Catenacci and Mrs. Moore—and the presumed
testimony of a third witness, Domine. Third, Aloisio’s blunt
May 25, 1999 threats to Catenacci and Mrs. Moore are corrobo-
rated by Catenacci’s immediate reaction thereto: an order that
Carlo no longer use Rymco trucks on the I–275 job beginning
May 26. In sum, the clear preponderance of the evidence sup-
ports the General Counsel’s allegations.

4 Someone identified as “Scotty” left the courtroom before
implementation of the sequestration order in this case (Tr. 15).
TEAMSTERS LOCAL 247 (RYMCO) 1233
Turning to the Union’s asserted legal defenses, it first re-
fused at trial to stipulate that Rymco is subject to the Act’s
jurisdiction. But the Union did stipulate that Carlo is subject to
the Act’s jurisdiction. And the Board has clearly held that in
determining whether the primary employer, Rymco, is covered,
jurisdiction can be obtained via the operation of the affected
secondary employer, Carlo. Teamsters (McAllister Transfer),
110 NLRB 1769 (1954). Moreover, in working on the I–275
job for 13 days in April and May 1999, billing Carlo for at least
$5500 a day, Rymco performed services exceeding $50,000,
before Carlo threw it off the job following the Union’s threats.
Thus, it is concluded that Rymco was engaged in commerce
within the meaning of Section 2(2), (6), and (7) and Section
8(b)(4) of the Act.
Second, in defending itself against the charge that it threat-
ened Rymco, with the intent of shutting down Carlo’s I–275
operation, the Union argues that it never intended that Rymco
inform Carlo of this threat. It is true that Mrs. Moore never
called Catenacci after either of Aloisio’s two threatening phone
calls to her and it is likewise true that Catenacci was not a party
to either of Aloisio’s calls to Mrs. Moore. But the Board has
held that threats such as Aloisio’s to Mrs. Moore, out of the
presence of the neutral employer, are still illegal because they
are “directed toward the neutral employer,” thus constituting “a
threat of secondary pressure within the meaning of Section
8(b)(4).” Wackenhut Corp., 287 NLRB 374, 382 (1987), quot-
ing Tri-State Building Trades Council (Backman Sheet Metal),
272 NLRB 8 fn. 1 (1984), enfd. 781 F.2d 569 (6th Cir. 1986).
And notwithstanding the Union’s effort to split hairs over what
it subjectively intended Mrs. Moore to do after receiving
Aloisio’s threats, it must be recognized that Aloisio also called
Catenacci before and after the May 25 phone calls to Mrs.
Moore and threatened Catenacci with striking the I–275 job
because of Rymco’s presence. Moreoever, Aloisio quickly
achieved his ultimate goal on May 25 by forcing Catenacci to
jettison Rymco from the job. Therefore, the Union’s indirect
threats to Carlo, via Rymco, violated the Act.
Lastly, in defense of the allegation that it threatened Carlo,
the Union contends that it also had a “primary labor dispute”
with Carlo, thus inoculating it against any violation of Section
8(b)(4). At the outset, though, it must be recognized that a
union bears a “heavy burden” in demonstrating the loss of an
employer’s neutrality. Service Employees Local 525, 329
NLRB 638 (1999). In support of its claim, the Union points out
that it sent Carlo a letter on May 11, 1999 informing Carlo that
nonunion trucks were working on the I–275 job and that the
Union “will take the proper steps to correct the problem” if the
matter were not resolved by “tomorrow morning.” But Rymco
continued to work at the jobsite for nearly 2 more weeks and
the Union did nothing before Aloisio’s threatening phone calls
on May 25 evidencing a primary labor dispute with Carlo.
Also, the Presiding Judge rejects the Union’s claim that its
“dispute” with Carlo caused it to file, and prosecute, a griev-
ance against Carlo as of May 11. As the General Counsel cor-
rectly points out, the Union “had done nothing in furtherance of
this so-called grievance” through the trial of this case as re-
quired by the collective-bargaining agreement. Thus, the Un-
ion’s lack of any substantive action against Carlo before May
25 shows that Carlo was indeed a neutral secondary employer
on May 25, when the Union’s proscribed object was to entangle
Carlo in its dispute with Rymco. See NLRB v. Denver Building
& Construction Trades Council, 341 U.S. 675 (1951).
IV. CONCLUSIONS OF LAW
1. John Carlo, Inc. and Rymco, Inc. are employers engaged
in commerce or in an industry affecting commerce within the
meaning of Sections 2(2), (6), and (7), and 8(b)(4) of the Act.
2. The Respondent, Local 247, International Brotherhood of
Teamsters, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(4)(ii)(B) of the Act
on May 25 and 27, 1999, by threatening Rymco, Inc. with the
shutdown of the operations of John Carlo, Inc. at the I–275
jobsite.
4. The Respondent violated Section 8(b)(4)(ii)(B) of the Act
on May 25, 1999, by threatening John Carlo, Inc., a neutral
general contractor, with the shutdown of the I–275 jobsite.
5. The unfair labor practices in paragraphs 3 and 4, above,
affect commerce within the meaning of Section 8(b)(4)(ii)(B)
and Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]