Teamsters Local 557 (General Motors)

National Labor Relations Board - Board Decisions

Mar 31, 2003

338 N.L.R.B. 896 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
Teamsters Local 557, affiliated with International
Brotherhood of Teamsters and General Motors
and New Concept Solutions. Case 5–CC–1247
March 31, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On July 18, 2002, Administrative Law Judge William
G. Kocol issued the attached bench decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel and the Charging Party each filed a
brief in support of the judge’s decision.
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, and conclusions1 and
to adopt the recommended Order.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Teamsters Local 557, affili-
ated with International Brotherhood of Teamsters, its
officers, agents, and representatives, shall take the action
set forth in the Order, except for the attached notice.

MEMBER LIEBMAN, concurring.
I agree with my colleagues that current law compels
the result reached here, at least on the present record. I
write separately to highlight how strained the concept of
“neutrality” is, as applied in certain labor disputes.1
The Respondent, Teamsters Local 557, affiliated with
International Brotherhood of Teamsters (Local 557), has
alleged that Charging Party General Motors was “deeply
involved” in a scheme to terminate the drivers employed
by General Motors’ (GM) car-haul subcontractor,

1 Chairman Battista notes Member Liebman’s concurrence. As she
recognizes, her view is not in accordance with the law. Further, in
addition to the fact that the evidence does not establish that General
Motors (GM) acted for an anti-Teamster motive, Chairman Battista
notes that the record shows only that GM made a decision to replace
the contractor Leaseway Auto Carriers (Leaseway) with another, New
Concept Solutions (NCS). NCS made the decision not to hire Lease-
way employees, and made the decision not to recognize Teamsters
Local 557.
In addition, this is not a case where an employer has made an unlaw-
ful decision to subcontract work away from its own employees.
2 We will substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket American, Inc., 337 NLRB 175 (2001).
1 Whether current law represents the inevitable evolution of early
decisions, as Member Acosta argues, I need not address. To the extent
that the law has been static, as he suggests, perhaps it is time for an-
other look.
Leaseway Auto Carriers (Leaseway), because these driv-
ers were represented by the Teamsters. Accordingly,
Local 557 contends, GM was not a “neutral” employer
within the meaning of Section 8(b)(4)(B), and its mem-
bers’ picket line against GM was lawful. I would agree,
had the Respondent proved its allegations.
However, the record establishes only that GM shifted a
contract relationship from Leaseway, which recognized
Local 557, to New Concepts Solutions (NCS), which did
not.2 Before the switch took effect, Leaseway’s employ-
ees and their families set up the picket line at the GM
facility during GM work hours to protest the loss of their
jobs. As the judge found, the picket line was clearly di-
rected at GM and not at NCS. I therefore agree that, un-
der current Board law, GM must be treated as a protected
secondary employer, and that the picket line was unlaw-
ful.
But, in treating GM as a “neutral” to this dispute, we
strain the plain meaning of that word. GM was clearly a
critical party to what happened here—in fact, it was the
primary actor. It was GM’s decision, and GM’s alone, to
shift its car-hauling work from Leaseway to NCS. And
GM’s decision, in turn, led to NCS’s decision not to re-
tain the Leaseway drivers. Even if GM was not com-
plicit in NCS’s decision, GM was at least aware, as the
Respondent emphasizes, that NCS did not intend to rec-
ognize the Teamsters as its employees’ bargaining repre-
sentative. Notwithstanding GM’s obvious role in pre-
cipitating this labor dispute, GM is treated under current
law as a “neutral” to the dispute, who cannot be a lawful
target for picketing by the Leaseway drivers who lost
their jobs.
In my view, the concept of “neutrality,” as it has been
applied, turns on a legal fiction. It shields from legiti-
mate concerted activity employers who are by no real
definition neutral to a labor dispute. A secondary em-
ployer will be treated as a “neutral” and protected from
picketing, regardless of its actual involvement in a labor
dispute, its involvement in determining employees’ terms
and conditions of employment through contracting deci-
sions, or its demonstrated antiunion animus.3
2 The Respondent points to a notice in GM’s newsletter indicating an
early awareness that NCS employees would be represented by a union
other than the Teamsters. The Respondent also characterizes a com-
plaint (not in the record) against NCS now pending in another Board
case, as alleging in part that NCS gave unlawful assistance to two other
unions shortly after it replaced Leaseway, in violation of Sec. 8(a)(2).
However, the Respondent has failed to show that GM was involved in a
concerted plan to terminate Teamster-represented drivers.
3 The burden on a union to demonstrate that an entity has lost its
neutrality is a heavy one. For all practical purposes, a third party is a
neutral unless its shown to be an “ally” of the primary employer. The
third party is an ally, in turn, only if it fits one of three criteria: It must
have performed “struck work”; have exercised “substantial, actual and
338 NLRB No. 133
TEAMSTERS LOCAL 557 (GENERAL MOTORS) 897
The legal concept of “neutrality” accordingly fails to
contend with the role that many “secondary” employers
actually play in employment decisions.4 The concept is
also increasingly out of sync with the growing business
practice of contracting out functions once performed in-
house (and with the effective codetermination by such
“secondary” contractors of subcontractor labor relations
and terms of employment). See Airborne Express, 338
NLRB 597, 599 (2002) (Member Liebman, concurring).
As applied in many cases, then, the 8(B)(4) concept of
neutrality shields from concerted activity many entities
that are not “neutral” in any meaningful sense, thereby
diluting the right of employees to exercise Section 7
guarantees against employers who in fact determine their
terms of employment or who are in fact enmeshed in a
labor dispute. See Service Employees Local 525 (General
Maintenance Co.), 329 NLRB at 647–651 (1999) (Mem-
ber Liebman, dissenting).
Accordingly, although I join in the finding that the Re-
spondent’s picket line was unlawful, I do so only because
the Respondent was unable to establish that GM shifted
its car-hauling contract from Leaseway to NCS with an-
tiunion animus.

MEMBER ACOSTA, concurring.
I write individually to address the concerns raised by
Member Liebman in her concurrence. The thrust of
Member Liebman’s concerns is that the concept of neu-
trality as it has been applied in 8(b)(4) parlance has been
strained and distorted.
The view of “neutrality” that Member Liebman dis-
putes is nearly as longstanding as Section 8(b)(4) itself.
In NLRB v. Denver Building Trades Council, 341 U.S.
675 (1951), one of the Supreme Court’s first decisions
involving the then-recently enacted Section 8(b)(4), a
general contractor on a construction project awarded a
subcontract for electrical work to a nonunion contractor.
The Council, representing all of the construction unions
at the jobsite, picketed, and the unions’ members ceased
work. In response to this pressure, the general contractor

active control” over the picketers’ terms of employment; or be found a
“joint employer” with the primary employer. E.g., Service Employees
Local 525 (General Maintenance Service), 329 NLRB 638, 640 (1999);
Teamsters Local 560 (Curtin Matheson), 248 NLRB 1212, 1213
(1980). In the absence of one of these highly specific scenarios, a
targeted employer’s antiunion animus, and its contracting decisions or
other actions based on that animus, are legally irrelevant.
4 For that matter, the Board’s failure to recognize the role that many
“secondary” employers play through their contracting decisions has
also resulted in the protection of contractors who discriminate with
antiunion animus in violation of Sec. 8(a)(3). See Airborne Express,
338 NLRB 597, 598 fn. 1 (2002) (Member Liebman, concurring) (criti-
cizing Board’s application of Plumbers Local 447 (Malbaff), 172
NLRB 128 (1968), to cases not involving 8(b)(4) misconduct).
discharged the electrical subcontractor, who in turn filed
an unfair labor practice charge.
In upholding the Board’s decision that the unions’
conduct violated Section 8(b)(4), the Supreme Court re-
jected the unions’ argument that the “doing business”
relationship between the general contractor and the sub-
contractor created a primary dispute between the unions
and the general contractor that legitimized the picketing.
As the Court explained (341 U.S. at 689–690):

We agree with the Board also in its conclusion
that the fact that the contractor and subcontractor
were engaged on the same construction project, and
that the contractor had some supervision over the
subcontractor’s work, did not eliminate the status of
each as an independent contractor or make the em-
ployees of one the employees of the other. The busi-
ness relationship between independent contractors is
too well established in the law to be overridden
without clear language doing so.

See also NLRB v. Enterprise Assn. of Steam Pipefitters Lo-
cal 638 (Austin Co.), 429 U.S. 507 (1977); NLRB v. Operat-
ing Engineers Local 825 (Burns & Roe, Inc.), 400 U.S. 297
(1971). In short our decision today is consistent with the
original interpretation of the secondary boycott provisions
of the Act.
APPENDIX B
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
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten, coerce, or restrain General Mo-
tors or any other person engaged in commerce or in an
industry affecting commerce where an object thereof is
to force or require General Motors or any other person to
cease doing business with New Concept Solutions or to
force or require New Concept Solutions to recognize or
bargain with Respondent.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
TEAMSTERS LOCAL 557, AFFILIATED WITH
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS

Timothy F. McCarthy, Esq., for the General Counsel.
James F. Wallington, Esq. (Baptiste & Wilder, P.C.), of Wash-
ington, D.C., for the Respondent.
Roger D. Meade and Traci L. Burch, Esqs. (Littler Mendelson),
of Baltimore, Maryland, for the Charging Party.
J. Michael McQuire, Esq. (Shaw & Rosenthal, LLP), of Balti-
more, Maryland, New Concept Solutions.
BENCH DECISION
WILLIAM G. KOCOL, Administrative Law Judge. This case
was heard in Baltimore, Maryland, on June 19 and 20, 2002.
At the conclusion of the trial and following closing arguments
by all parties, I issued a bench decision pursuant to Section
102.35(a)(10) of the Board’s Rules and Regulations, setting
forth findings of fact and conclusions of law. In accordance
with Section 102.45 of the Board’s Rules and Regulations, I
certify the accuracy of the portion of the transcript containing
the Bench Decision; it is attached as Appendix A [pp. 444–
450].
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Teamsters Local 557 affiliated with Inter-
national Brotherhood of Teamsters, Baltimore, Maryland, its
officers, agents, successors, and assigns, shall
1. Cease and desist from threatening, coercing, or restrain-
ing General Motors or any other person engaged in commerce
or in an industry affecting commerce where an object thereof is
to force or require General Motors or any other person to cease
doing business with New Concept Solutions or to force or re-
quire New Concept Solutions to recognize or bargain with Re-
spondent.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act. Within 14 days after service by
the Region, post at its union office in Baltimore, Maryland,
copies of the attached notice marked “Appendix B.”2 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 5, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
and members are customarily posted. Reasonable steps shall be

1 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.
2 If this Order is enforced by a judgment of the United States court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
APPENDIX A
444
brief its response. That would be our preference.
Absent that, I believe that the argument in evidence pre-
sented in the last few days warrants dismissal of the complaint.
JUDGE KOCOL: All right. The following is my decision in
this case. Concerning your request to supply additional author-
ity, I think the matter has been fully argued before me; and it
has been argued in the form of the memos that went back and
forth on the motions for the subpoenas and we had extensive
opening statements with citations to authority; and we had addi-
tional citations here that I considered, so I do not feel that any
more case authority would be useful to me at this point.
So this is my decision: The Government alleges that Re-
spondent violated Section 8B4IIB of the Act by virtue of the
conduct that occurred at the GM facility on December 4, 2001.
Those sections of the law reflect the dual objectives of Con-
gress to allow a union to engage in certain conduct against an
employer with whom it has a primary labor dispute, but also to
shield from such conduct as other employers with whom the
union does not have a primary labor dispute.
First, I need to take care of some preliminary matters. Based
on the pleadings in this case, I conclude that Respondent, that is
Teamsters' Local 557, affiliated with
445
the International Brotherhood of Teamsters, is a labor organiza-
tion within the meaning—within 25 of the Act. I conclude that
General Motors is an employer engaged in conduct within the
meaning of Section 225, I am sorry 226 and 7 of the Act. I
conclude that Mr. McClain is an agent of the Respondent
within the meaning of Section 213 of the Act; and I conclude
that, at all times material herein, Respondent was at a labor
dispute with New Concepts Solutions.
Now, prior to January 1, 2002, Leaseway performed services
for GM at GM’s facility. Leaseway performed those services
on property leased from GM and adjacent to GM’s facility.
Leaseway employees were represented by Respondent, many of
whom had worked for Leaseway for many years. Respondent,
however, did not represent any employees of GM at the Balti-
more facility. At some point in 2001, it became apparent that
Leaseway would no longer perform those services. Instead,
those services would be performed by New Concepts Solutions.
The employees of New Concepts are not represented by Re-
spondent. GM and New Concepts do not share common offices
or management. Each determines its own labor relations pol-
icy. On January 1, 2001, New Concepts began performing the
services that were formerly provided by Leaseway. There is no
substantial evidence to indicate that the relationship
446
between GM and New Concepts was anything other than arms
2 length.
On December 4th, Respondent was responsible for a demon-
stration that occurred at GM's facility. On that day, about 150

TEAMSTERS LOCAL 557 (GENERAL MOTORS) 899
to 200 men, women and children met in the parking lot across
the street on Holabird Avenue. These demonstrations ini-
tially—these demonstrators, I am sorry, initially distributed
handbills to GM employees but that conduct is not alleged to
have violated the Act.
After the handbilling ended, the demonstrators reorganized
in the parking lot and picket signs and placards were distrib-
uted. Those signs read—those signs displayed the Dr. Seuss
image of the Grinch and they read: THE GRINCH WHO
STOLE LEASEWAY WORKERS' CHRISTMAS. And then in
small lettering, it had Teamsters' Local 557; and then it also
had: We are the Teamsters printed on them. The signs were
displayed in two ways. Most of the signs were affixed to a
stick that was about six-feet tall. Other signs had rope that
allowed the demonstrators to wear the signs by placing the rope
over their heads.
At around 7 a.m., the demonstrators proceeded from the
parking lot across Holabird Avenue, walked down Holabird and
turned on Broening Highway and walked in front of GM’s
administration building. They turned around in front of that
building and walked back in the opposite direction and
447
continued to do so in front of the administration building for
about two hours.
In the process, the demonstrators approached entrances and
exits to the GM facility used by GM employees, customers and
suppliers. I do not determine that it is necessary to resolve the
precise credibility issue of how close to the entrances these
demonstrators came to those entrances and exits while they
were demonstrating in front of the administration building.
During this time, those entrances and exits were actually
used by GM’s employees, customers and suppliers. However,
other than walking past the entrances on the way to the admini-
stration building and other than assembling there for a brief
period of time to exchange signs, no patrolling occurred at the
entrances or exits to the facility.
During the two hours that the demonstrators patrolled in
front of the administration building at the GM facility, many of
the demonstrators carried and displayed the signs that I have
previously described. Respondents used their bullhorns to
shout chants that included reference to GM and the demonstra-
tors responded to those chants in unison. This was loud enough
to be clearly heard in the administration building. The demon-
strators frequently raised the signs up and down; they interacted
with some passing drivers, who sounded their horns to show
support for the demonstrators.
448
At no time during the demonstration did New Concepts have
a presence at the GM facility. The day after the demonstration,
that is December 5th, Respondent requested recognition from
New Concepts.
I conclude that the conduct at GM’s facility on December
4th constituted picketing. It involved patrolling, the carrying
and raising of picket signs, and the shouting of slogans and
interaction between picketers and passersby. I further conclude
that the picketing was coercive within the meaning of Section
8B4IIB. The picketing occurred while General Motors was
engaged in its normal operations and occurred on sidewalks
directly in front of the facility.
I further conclude that the object of the picketing was to
force General Motors to cease doing business with New Con-
cepts and/or to force New Concepts to recognize Respondent.
The signs, themselves, identified General Motors as the object
of the picketing. New Concepts was not present on the site at
the time of the picketing. All this occurred in the backdrop of
the union's deep concern over General Motors’ business rela-
tionship with New Concepts that would result in the loss of jobs
to the estranged employees.
Respondent asserts that GM is not a neutral employer and I
disagree. The fact that GM may have terminated its business
relationship with Leaseway does not make GM a primary em-
ployer. It remained a neutral employer.
449
Respondent relies on the fact that Mr. Harkins, GM's finance
director, solicited and received a letter from New Concepts
concerning the fact that New Concepts’ president would not be
present at the site during the picketing and then transmitted that
letter to the union.
Our Respondent argues that this is evidence of General Mo-
tors' lack of neutrality. In my view, this shows nothing more
than what a normal employer might do in anticipation of
picketing. Our Respondent also relies on the article in the
November 21st Baltimore Assembly Times. That article, in
pertinent part, reads—it actually has been read in the record
already so I won't repeat it here. But I—Respondent also con-
ceded that the article showed the nature of its dispute with GM.
I conclude that this article, together with the concession, ac-
tually serves to strengthen my conclusion that Respondent had
an unlawful secondary object.
To summarize: I conclude that the union picketed General
Motors on December 4th; that the picketing was coercive and
for an unlawful object. I have further rejected all affirmative
defenses asserted by Respondent. I make the following conclu-
sions of law: By picketing General Motors on December 4,
2001, Respondent violated Section 8B4IIB of the Act. My
written order in this case will be sent to all parties at a later
date. This concludes my
450
decision. The Hearing is now closed.
MR. McCARTHY: Thank you, Your Honor.
MR. WALLINGTON: Thank you, Your Honor.