Teamsters Local 70 (Chipman Freight)

National Labor Relations Board - Board Decisions

Mar 26, 1987

283 N.L.R.B. 343 (N.L.R.B. 1987)

TEAMSTERS LOCAL 70 (CHIPMAN FREIGHT) 343
Brotherhood of Teamsters and Auto Truck Drivers,
Local 70 of Alameda County , affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America
and Chipman Freight Services . Case 32-CC-
1025
26 March 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND
CRAcRAFr
On 27 December 1985 Administrative Law
Judge Jerrold H. Shapiro issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed an an-
swering brief. The General Counsel filed limited
exceptions and a supporting brief.'
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 briefs2 and
has decided to affirm the judge' s rulings, findings,
and conclusions only to the extent consistent with
this Decision and Order.
The judge found that the Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act by picket-
ing Chipman Freight Services with an object'of in-
terrupting the business relationships between Chip-
man and its independent contractor subhaulers, but
did not violate Section 8(b)(4)(i) and (ii)(B) by
picketing Chipman with an object of forcing or re-
quiring Chipman to recognize or bargain with the
Respondent as the representative of the subhaulers.
For' the reasons stated below, we find that the Re-
spondent's picketing of Chipman Freight Services
with either of these objectives did not violate Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act. Accordingly,
we shall dismiss the complaint.
Chipman uses 22 subhaulers or owner-operators
to transport containers to and from the Oakland
dock area. The, Respondent concedes that the sub-
haulers are independent contractors and not em-
ployees of Chipman. The subhaulers were required
to sign a uniform subhaul agreement in order to do
business with Chipman. That agreement was sub-
ject to immediate cancellation by either party by
giving the other party written notice.
In July 19853 Chipman drafted a new subhaul
agreement to replace the old one. The new agree-
3 The Respondent , the General Counsel , and the Charging Party also
filed supplemental statements of position
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.
8 All dates are in 1985 unless otherwise indicated.
went specifically states that the subhauler is an in-
dependent contractor and not an employee of
Chipman. On 29 July Chipman's -general manager
Tucker notified all the subhaulers that their old
subhaul agreements were canceled and told them
that they would have to sign the new agreement in
order to do business with Chipman. Only two sub-
haulers signed new agreements 29 July; two others
signed 26 August.
In attempting to regain work from Chipman,
some of the subhaulers sought the assistance of the
Respondent, which had in, June and July already
begun efforts to organize the approximately 400
owner-operators in the Oakland area.
On 30 July Alex Ybarrolaza, the director, of the
Teamsters owner-operater division, attempted to
convince Tucker to reinstate the old subhaul agree-
ments and to recognize the Respondent as the rep-
resentative of the owner-operators. Tucker refused.
On 6 August Ybarrolaza wrote to Chipman that
the Respondent represented Chipman's subhaulers
and enclosed a blank copy of a recognition agree-
ment . He also sent similar letters to other compa-
nies in the area.
On 7 August Ybarrolaza met with most of Chip-
man's subhaulers. He suggested that the subhaulers
sign the new agreement but attach a cover letter
prepared by the Respondent stating that the agree-
ment does not accurately define the subhaulers'
employment status, and it was not the subhaulers'
intent to redefine their status . The subhaulers re-
jected this course of action because they wanted to
work under the old agreement.4 They voted to
picket Chipman, and the Respondent agreed to
support the picket line until Chipman took back all
the subhaulers under the old agreement. On 7
August the ' Respondent began picketing Chipman
with signs reading, "CHIPMAN FREIGHT
SERVICES-UNFAIR TO OWNER OPERA-
TORS-TEAMSTERS LOCAL 70."
The four subhaulers who signed new,agreements
with Chipman have not performed work at Chip-
man because of the picketing. Some of Chipman's
customers have also refused to cross the picket
line.
On 13 August Tucker responded to the Re-
spondent's 6 August request for recognition by re-
fusing to recognize the Respondent because the
subhaulers are not Chipman's employees, but, inde-
pendent contractors.
On 15 August the Respondent responded that
while it would like to gain recognition at Chipman,
the picketing was for the sole purpose of returning
4 The new agreement , among other things, provided for a different
method of compensation
283 NLRB No. 57
344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all Chipman subhaulers to their jobs and not for
the purpose of gaining recognition, and that the
subhaulers would return to work if Chipman would
not require them to sign the new subhaul agree-
ment. -
On 16 August Tucker wrote to the subhaulers
that he was still ,interested in meeting with them to
negotiate new contracts.
On 22 August Ybarrolaza wrote that the sub-
haulers had selected a committee of three sub-
haulers to discuss a new contract with Chipman
and that the Respondent would not participate in
those discussions that could begin as soon as the
subhaulers were allowed to resume work under the
old agreement.
On 23 August Tucker replied that he would not
reinstate the old contracts and that he was not will-
ing to meet with groups of owner-operators be-
cause of potential antitrust ramifications.
In finding that the Respondent violated Section
8(b)(4)(B) of the Act by picketing with an object of
forcing independent-contractor subhaulers to cease
doing business with Chipman, the judge found that
the ultimate object was to" force Chipman to do
business with the subhaulers under the old, rather
than the new, subhaul agreement.
The judge rejected the Respondent's contention
that the, picketing was primary. The judge relied
on the Board's decision in Production Workers Local
707 (Checker Taxi), 273 NLRB 1178 (1984) (Check-
er 1),5 which held that a union is not engaged in
primary activity when it brings economic pressure
against a company to cause a cessation of business
between the company and its independent contrac-
tors, where the union has no -dispute concerning
the company's' own employees. The judge conclud-
ed that here the Respondent was not engaged in
primary activity because the Respondent picketed
Chipman to cause a cessation -of business with
Chipman's independent contractor subhaulers
absent a dispute concerning Chipman's employees.
Thus, the judge found that the picketing violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
- Following 'the issuance of the judge's decision in
the instant case, however, the D.C. Circuit vacated
the Board's Checker I decision and remanded that
S Checker I involved taxicab companies that lease cabs driven by inde-
pendent contractors (LCDs). Some of the LCDs became dissatisfied with
the lease arrangements offered by the companies . They approached the
union, which formed a "Leased Taxicab Drivers Division"' within the
union The union began collecting dues and initiation fees from the driv-
ers, and sought recognition and bargaining from the companies on behalf
of the LCDs. When the companies refused to recognize the union, the
union and the LCDs began picketing and handbilling at the companies'
garages. The picket signs stated that the LCDs were on strike and re-
quested , inter alia, that the drivers refuse to lease cabs until an agreement
was signed. The Board found that the picketing violated Sec S(b)(4)(i)
and (ii)(B) of the Act because picketing on behalf of independent contrac-
tors was not lawful primary activity
case to the Board. Production Workers Union of
Chicago v. NLRB, 793 F.2d 323 (D.C. Cir. 1986).
The court disagreed with the Board's premise that
Section 8(b)(4) of the Act prohibits union involve-
ment in all picketing on behalf of independent con-
tractors. Rather, the court held that Section 8(b)(4)
bars only secondary activity, which the court de-
fined as "union attempts to involve neutral third
parties in disputes not their own." 793 F.2d at 327.
The court found that the picketing was not unlaw-
ful because it was directed against the cab compa-
nies , nonneutral parties, who were directly and inti-
mately involved in the underlying dispute. The
court remanded the case to the Board for, applica-
tion of the proper standard.
Following the remand, the Board reconsidered
its Checker I position, and in Production Workers
Local 707 (Checker Taxi), 283 NLRB 340 issued
today (Checker II), the Board agreed with the D.C.
Circuit that Section 8(b)(4) of the Act prohibits
only picketing against neutral parties, those
"wholly unconcerned in the disagreement." 793
F.2d at 328. Applying that standard to the facts, in
Checker, the Board found that because the underly-
ing dispute was with the cab companies, the cab
companies are not neutrals. Thus, the Board found
that the picketing against the cab companies is pri-
mary activity and does not violate Section 8(b)(4)
of the Act.
We believe that Checker II controls the instant
case. Here, the complaint alleges that the Respond-
ent violated Section 8(b)(4)(i) and (ii)(B) of the Act
by picketing Chipman with an object of interrupt-
ing the business relationships between Chipman and
its subhaulers and; with an object of forcing Chip-
man to recognize the Respondent as the subhaulers'
representative. Chipman, however, is not a neutral
party but is directly and intimately involved in the
underlying dispute. The subhaulers' dispute was
solely with Chipman,- and the Respondent's picket-
ing on behalf of the subhaulers was directed against
Chipman. As Chipman is not a neutral , the Re-
spondent's picketing against Chipman, with either
of the alleged objectives, is primary activity, that
does not violate Section 8(b)(4)(B) of the Act. Ac-
cordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
Rony Clements and Barbara D. Davison, for the General
Counsel.
Duane B. Beeson and Kenneth C. Absalom (Beeson, Tayer
& Silbert),,for the Respondent.
John M. Skonberg and Patricia A. Shepherd (Littler, Men-
delson, Fastiff & Tichy), for the Charging Party.
TEAMSTERS LOCAL 70 (CHIPMAN FREIGHT)
James C. Paras (Morrison & Foerster), for Sea-Land Serv-
ices.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in this case held 30 October 1985 was based on
an unfair labor practice charge filed in- Case 32-CC-1025
on 7 August 1985 by Chipman Freight Services, and an
amended complaint issued 4 October 1985 on behalf of
the General Counsel of the National Labor Relations
Board, by the Board's Regional Director for Region 32,
alleging that Teamsters Local 70 (Respondent) was en-
gaging in unfair labor practices within the meaning of
Section 8(b)(4)(ii)(B) of the National Labor Relations
Act. The amended complaint, as amended at the hearing,
alleges that Respondent violated Section 8(b)(4)(ii)(B) of
the Act by picketing at Chipman Freight's facilities and
by picketing Chipman Freight's trucks at the facility of
Sea-Land Services with an object of forcing and requir-
ing Sea-Land and other persons to cease doing business
with Chipman Freight, and with an object of forcing and
requiring Chipman Freight to recognize and bargain
with Respondent for the subhaulers with whom Chipman
Freight was doing business. I Respondent filed an answer
denying the commission of the alleged unfair labor prac-
tices.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs filed by the parties, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
Chipman Freight, a California corporation, is engaged
in the transportation and transhipment of freight and op-
erates two terminals in Oakland, California. Its Oakland
terminals, during a 12-month period material to this case,
earned more than $50,000 from transporting freight in
interstate commerce and as a link in commerce.
Sea-Land, a New Jersey corporation, is engaged in the
international and interstate transportation of freight by
water and operates a facility in Oakland, California. Its
Oakland facility, during a 12-month period material to
this case, earned more than $50,000 from transporting
containerized cargo in interstate commerce and as a link
in commerce.
]During the time material to this case Chipman Freight,
at its Oakland terminals, used the services of 22 truck-
drivers, who owned their own trucks, to perform
drayage and other trucking services. The relationship be-
tween Chipman Freight and these 22 owner-operators
(subhaulers) will be described in detail infra. Respondent
The amended complaint contained an 8(b)(4)(ii)(B) allegation based
on an unfair labor practice charge filed in Case 32-CC-1026 by Sea-
Land. The parties at the start of the hearing represented that they had
agreed to a settlement of the complaint 's allegation encompassed by that
charge Accordingly, I granted the General Counsel's unopposed motion
to sever the charge in Case 32-CC-1026 from this proceeding and to
remand it to the Board's Regional Director
345
admitted for purposes of this litigation that the sub-
haulers are independent contractors and not employees
of Chipman Freight.
Chipman Freight and -Sea-Land are employers en-
gaged in commerce and in an industry affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act and Chipman Freight, Sea-Land, and each of the
above-described subhaulers has been a person engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Brotherhood of Teamsters and Auto
Truck Drivers, Local 70 of Alameda County, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(,5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Chipman Freight operates two terminals in Oakland,
California, where it provides warehouse space and facili-
ties for transloading cargo being shipped into or out of
the Port of Oakland in marine containers. Freight is
transported to and from these terminals by drivers em-
ployed by Chipman Freight, by drivers employed by
Chipman Freight's customers, and by the independent
contractor subhaulers.
Chipman Freight employs approximately 25 employees
at its Oakland terminals, including managerial and super-
visory employees. The rank-and-file employees-truck-
drivers, warehousemen, hostlers, and freight handlers-
are represented by the Diversified Transportation Spe-
cialist Union. Their terms and conditions of employment
are established by a collective-bargaining contract be-
tween that union and the employer.
In addition to its employee-drivers, Chipman Freight
uses the services of the 22 independent contractor sub-
haulers to move containers to and from the Pori, of Oak-
land dock area, and in some cases to make deliveries
away from the Port of Oakland. Most of these subhaulers
are owner-operators; that is, they own , maintain, and
drive their own trucking equipment used to haul contain-
ers for Chipman Freight. Five of the subhaulers, howev-
er, own one or more trucks used by Chipman Freight,
which are driven by employees of the subhauler. Prior to
the events in this case all the subhaulers, including the
owner-operator group, were required to sign a uniform
"sub-haul agreement" in order to work for Chipman
Freight. This agreement refers to the subhaulers as inde-
pendent businesspersons, and obligates them to "provide
transportation services for such shipments as [Chipman
Freight] may. from time to time tender." The drivers'
compensation under the agreement was computed on the
basis of a percentage of the rates charged by Chipman
Freight. The subhaul agreement was subject to immedi-
ate cancellation by either party "by giving the other
party written notice."
346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In July 19852 Chipman Freight's general manager, Jon
Tucker, drafted a new uniform subhaul agreement to re-
place the existing one. The new uniform agreement enti-
tled "Sub-haul Agreement With Independent Contrac-
tor" changed the existing agreement in- two significant
respects. The old•one was silent about the subhauler's in-
dependent contractor status, whereas the new one specif-
ically stated that the signatory subhauler was an inde-
pendent contractor and not an employee of Chipman
Freight, and further stated that the subhauler would in
all respects direct the operation of the equipment he used
to perform under the agreement, and described in detail
the authority and responsibilities of the subhauler in this
respect. Also, whereas under the old subhauler agree-
ment Chipman Freight agreed to pay the subhauler 70
percent of the rates charged customers by Chipman
Freight, the new uniform agreement proposed that Chip-
man Freight and the signatory subhauler negotiate flat
rates for the subhauler's services according to the par-
ticular hauls.
On 29 July General Manager Tucker notified each of
the Company's 22 subhaulers that effective immediately
their subhaul agreements were canceled. On that day and
the days immediately following, Tucker met with each
of the subhaulers individually. He showed them a copy
of the new uniform subhaul agreement, explained the
Company's reasons for changing the old agreement,
stated that the terms of the new proposed agreement and
rate schedule were negotiable, and offered to negotiate
with the individual subhaulers. Tucker also told the sub-
haulers that they would have to sign a new subhaul
agreement before being allowed to do business with
Chipman Freight. In fact, none of the subhaulers were
allowed to continue to work for Chipman Freight until
they entered into a new subhaul agreement. Only 4 of
the 22 subhaulers, at the time of the 30 October hearing,
had negotiated new subhaul agreements; Tyrone Searcy
Trucking and Max Lopez Trucking on 29 July, Hunter
Trucking and Cliffs Trucking on 26 August.
In June and July, prior to 29 July, Respondent's
owner/operator division was conducting a campaign to
organize the approximately 400 owner-operators in the
trucking business in the Port of Oakland and vicinity.
Alex Ybarrolaza, the director of Respondent's owner/-
operator division, was in charge of this campaign. Prior
to 29 July Ybarrolaza conducted several organizational
meetings which were each attended by between, 100 and
200-owner/operators. He told the owner/operators that
Respondent wanted to represent them in order to im-
prove their,, rates and conditions of employment and
asked them to sign cards authorizing Respondent to act
as their collective-bargaining representative. Some of
Chipman Freight's subhaulers attended these meetings.
On 30 'July Ybarrolaza visited General Manager
Tucker. He told Tucker that the subhaulers "terminated"
by Chipman Freight on 29 July had signed cards author-
izing Respondent to represent them. Ybarrolaza asked
Tucker to reinstate the subhaul agreements which were
canceled 29 July and to put all the subhaulers back to
2 All dates hereinafter refer to the year 1985, unless, otherwise speci-
fied.
work . He explained to Tucker that Respondent was in
the process of formulating new proposals or programs
for the subhaulers, which Respondent wanted to discuss
with Chipman Freight, but-they-were not quite ready for
presentation and, in the meantime, Ybarrolaza wanted
Chipman Freight to return to the "status quo." Tucker
responded by advising Ybarrolaza to contact Chipman
Freight's attorney.
On 5 August Respondent filed an unfair labor practice
charge (Case 32-CA-7414) with the Board's Regional
Office. It alleged that - Chipman Freight violated Section
8(a)(1) and (3) of the Act by discharging 18 named, indi-
viduals on 29 July because of their participation in con-
certed activities .3 The 18 individuals named in the
charge were, for the most - part, the subhaulers whose
subhaul agreements on 29 July had been canceled by
Chipman Freight . The record reveals, however, that 3 of
the 18 were employees of subhauler Clifford Reich
d/b/a Cliffs Trucking.
On 6 August the director of Respondent's owner/-
operator division, Ybarrolaza , wrote Chipman Freight
that Respondent represented all of its subhaulers and en-
closed for Chipman Freight's signature a blank copy of
an "Owner-Operator Division Recognition Agreement."
This agreement stated in substance that -the signatory
company agreed to recognize Respondent as the - exclu-
sive bargaining representative of its owner-operator
truckdrivers based on the Company 's acknowledgement
that the owner-operators were employees within the
meaning of the National Labor Relations Act and that
the Company also agreed to begin bargaining about the
terms and conditions of employment of the owner -opera-
tors and to expeditiously conclude the negotiations.
On the morning of 7 August Ybarrolaza met with a
majority of Chipman Freight's subhaulers whose subhaul
agreements had been canceled . The meeting took place
at the subhaulers ' request -and was held,at Respondent's
headquarters. Ybarrolaza suggested that each of the sub-
haulers return to work under the terms of the new uni-
form subhaul agreement being proposed by Chipman
Freight, but that 'when they signed this agreement that
they also give to Chipman Freight a signed copy of a
letter which Ybarrolaza had prepared for the,subhaulers'
signatures . Ybarrolaza circulated copies of this letter,
which reads as follows:
Gentlemen:
As directed by you, I have signed your "Inde-
pendent Contractor Agreement." I signed this
Agreement in compliance with your directive,
which indicated that I would be terminated or no
longer allowed to work for you unless I' signed this
Agreement. This-Agreement, however, does contain
several misrepresentations and does not accurately
define our relationship nor the manner in which
your work is performed or allocated. It is not my
a The Board's Regional Director for Region 32 found the charge to'be
without ment because the 18 individuals involved were not entitled to
the protection , of the Act as they were independent ' contractors. 'Re-
spondent's appeal to the General Counsel's office of Appeals was denied
for the time reason.
TEAMSTERS LOCAL 70 (CHIPMAN FREIGHT) 347
intention to redefine my present employment status
by signing this Agreement.
This letter has been prepared for me by Team-
sters Local 70 at my request. I have authorized
them to represent mein this matter, and you should
contact them if you have any further questions.
Very truly yours,
(Signature)
cc: Alex Ybarrolaza, Teamsters Local 70
Ybarrolaza's recommended course of action was dis-
cussed and rejected by the- subhaulers, a majority of
whom indicated they wanted to return to work under
the terms of the old uniform-subhaul agreement which
had been canceled by the Company. Ybarrolaza then in-
dicated that he thought the subhaulers should vote on
whether they wanted to picket. He explained that if they
voted in favor of picketing, that Respondent would sup-
port the picket line until Chipman Freight took them
back to work under the terms of the old subhaul agree-
ment, and further explained that the picketing would
continue until each of the subhaulers was put back to
work. The subhaulers voted to picket.4
On 7 August Respondent began picketing Chipman
Freight's Oakland terminals. The picket signs read:
"CHIPMAN FREIGHT SERVICES-UNFAIR TO
OWNER OPERATORS-TEAMSTERS LOCAL 70."
Also on 7 August through 9 August the pickets followed
Chipman Freight's trucks to numerous facilities in the
Port of Oakland and picketed with the above-described
picket signs at a gate reserved for Chipman Freight's
trucks at Sea-Land's Port of Oakland facility. On 30 Oc-
tober, the date of the hearing in this case, Respondent's
picketing at Chipman Freight's Oakland terminals was
still in progress.5
'The four subhaulers, who, as described supra, signed
new subhaul agreements with Chipman Freight, have not
made any pickups or deliveries for Chipman Freight at
the picketed terminals because the employees of these
subhaulers and/or the subhaulers themselves have re-
fused to cross Respondent's picket lines. Also the record
shows that truckdrivers employed by Chipman Freight's
4 Ybarrolaza and subhaulers Reich and Levasseur testified about this
meeting. The above description of what occurred is based on Ybarrola-
za's testimony . Ybarrolaza's testimonial demeanor was good, whereas
Reich's and Levasseur's was poor. Moreover, Ybarrolaza's testimony was
corroborated by Reich's in a number of significant respects, whereas
there was a sharp conflict between Reich's and Levasseur's testimony.
Levasseur's testimony that Ybarrolaza suggested the subhaulers sign the
old subhaul agreement, rather than the new one , was contradicted by
Reich, who corroborated Ybarrolaza's testimony in this respect. Like-
wise, Reich's description of the contents of the cover letter which Ybar-
rolaza suggested that the subhaulers give to Chipman Freight, corrobo-
rates Ybarrolaza's description and contradicts Levasseurs'.
5 On 13 August the Board's Regional Director in Oakland sought a
temporary injunction of this picketing under Sec 10(1) of the Act in the
United States District Court for the Northern District of California,
pending disposition of this proceeding The Regional Director's petition
was demed by the court on 22 October. However, the parties in their
posthearing briefs have advised me that on 15 November the Circuit
Court of Appeals for the Ninth Circuit issued an order, pursuant to the
General Counsel 's motion , enjoining Respondent from picketing Chipman
Freight or its customers pending an appeal of the district court 's order
denying injunction or until the Board issued a final decision in the matter,
whichever occurred first
customers, or by agents of the customers, have refused
to cross the Respondent's picket lines at Chipman
Freight's terminals to make pickups or deliveries and
that this has prompted some of Chipman Freight's cus-
tomers to threaten Chipman Freight with the loss of
their business.
On 13 August General Manager Tucker rejected Ybar-
rolaza 's 6 August demand that Chipman Freight recog-
nize Respondent as the bargaining representative of
Chipman Freight's subhaulers . Tucker explained to Ybar-
rolaza that the demand was inappropriate because the
subhaulers were not Chipman Freight"s employees, but
were independent businessmen.
On 15 August Ybarrolaza wrote Chipman Freight's at-
torney, in pertinent part, as follows:
In our telephone conversation of July 30, 1985,
and on two other occasions prior to August 3, 1985,
we discussed the matter of Chipman Freight Serv-
ices' termination of its owner-operator drivers, and
on each occasion I indicated to you that we were
simply asking Chipman Freight Services to return
to the status quo that existed on July 29, 1985. That
all the Chipman owner-operator drivers be allowed
to return to work under the terms and conditions of
their respective contracts then in effect. We also
outlined this position to Mr. Jon Tucker at Chip-
man Freight Services Warehouse on July 30, 1985,
and this still remains our position.
In the event you are under the misconception
that our position has changed, please be advised
that it has not. I specifically told you on August 2,
1985, that while we would like to gain recognition
at Chipman it was not required, and that the owner-
operators would be willing to return to work as
long as Chipman would not compel them to sign
the new "Independent Contractor Agreement," and
was willing to accept the return of all of the owner-
operators that it had terminated on July 29, 1985;
that we would deal with the question of recognition
later as our program on behalf of all of the owner-
operators operating on the waterfront [was] not de-
signed for just Chipman or any single company, but
for all of the companies involved in the hauling of
containers . Letters requesting recognition were sent
by us to 35 companies whose employees, owner-op-
erators or non-owner drivers, have indicated a
desire to be represented by Local 70. All these let-
ters were sent out at about the same time. Chipman
was the only company picketed. Our picketing
Chipman Freight Services is for the sole purpose of
returning all of the Chipman owner-operators to
their jobs and not for the purpose of gaining recog-
nition.
On 16 August Tucker wrote identical letters to some
of the subhaulers. He informed them, among other
things, that Chipman Freight was still interested in meet-
ing with them to negotiate new contracts, that the only
substantial change in the contract which it had proposed
was in the rates, that this change was favorable to the
subhaulers , and explained that if there were provisions in
348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the new contract which a subhauler desired to change,
that Tucker would be happy to consider the subhauler's
proposed changes.
On 22 August Ybarrolaza wrote Chipman Freight's at-
torney and with respect to Tucker 's 16 August letter, in
pertinent part , stated:
'We are glad to hear that Chipman is very inter-
ested ' in meeting with the owner -operators, and .on
our recommendation they have selected a commit-
tee' of three who would meet with Mr. Jon Tucker
to review- and-discuss a new contract. The owner-
operators further indicated that these discussions
could begin as soon as Chipman allows all of their
owner-operator drivers to return to work and the
talks could be held -after normal working hours.
Teamsters Local 70 would not participate in these
discussions. Pending final resolution for a new con-
tract, they would also agree to continue to work as
they had in the past and under the terms of their re-
spective past agreements and either the old or more
favorable rates than Chipman , seems to be offering,
all of which Local 70 is not a party to.
On 23 August Tucker wrote Ybarrolaza in response to
Ybarrolaza's- 22 August letter . With respect to Ybarrola-
za's proposal concerning the negotiation of a new con-
tract by and between the subhaulers and Chipman
Freight, Tucker wrote the following:
We are still not willing to return to the prior con-
tracts while we, discuss revisions in those contracts.
Nor are we willing to meet with groups of owner-
operators to discuss rates . ' As I am sure you are
aware, the joint discussion of such rates could have
serious anti-trust ramifications for both the company
and the owner-operators.
As I said before, we are, however, willing to
meet at any time, individually, with the owner-oper-
ators to work out satisfactory contracts.
B. Discussion and Conclusions
1.
The amended complaint, as further amended at the
hearing, alleges; - Respondent violated Section
8(b)(4Xii)(B) of the Act by picketing Chipman Freight at
Chipman Freight's Oakland terminals and at the entrance
reserved for Chipman Freight at Sea-Land's Oakland fa-
cility, with an, object of forcing or requiring Chipman
Freight to recognize and bargain with Respondent on a
collective basis for the independent contractor subbaulers
with whom Chipman, Freight was doing business. I shall
recommend the dismissal of this allegation for the reason
that the record does not establish that an object of Re-
spondent's picketing was to force or require Chipman
Freight to recognize or bargain with Respondent as the
representative of Chipman Freight 's subhaulers.
On 7' August, when the subhaulers voted to picket
Chipman Freight , Ybarrolaza, the director of Respond-
ent's owner/operator division , explained if they voted to
picket that , Respondent would support their picketing
until Chipman, Freight took all of them back to work
under the terms and conditions of the recently canceled
subhaul agreements and also promised that the picketing
would continue until Chipman` Freight put all' of them
back to work.6 Subsequently , on 15 August, Ybarrolaza
wrote Chipman Freight advising it that Respondent's
picketing was not for the purpose of gaining recognition,
but the picketing 's sole purpose was to return all of
Chipman Freight 's subhaulers to their jobs . In his 15
August letter Ybarrolaza also advised Chipman Freight
that Respondent would end its picketing if Chipman
Freight took back all the subhaulers under the terms and
conditions of the recently canceled subhaulers agree-
ments.7 The legend on the picket signs was consistent
with Ybarrolaza 's stated purpose . In view of the forego=
ing circumstances , I am persuaded the General Counsel
has failed to prove that an object of the Respondent's
picketing was to force or require Chipman Freight to
recognize or bargain with Respondent as the representa-
tive of Chipman Freight's subhaulers. I therefore shall
recommend the dismissal of this allegation.
In reaching this conclusion I have considered that on 6
August, the day before the start of the picketing , Ybarro-
laza asked Chipman Freight to acknowledge that the
subhaulers were Chipman Freight 's employees and to
recognize and bargain with Respondent as the sub-
haulers ' collective-bargaining representative . I also have
considered that at his 7 August meeting with the sub-
haulers, Ybarrolaza recommended a course of action
which included a letter ' to ' Chipman Freight stating,
among other things, that Respondent represented the
subhaulers . The subhaulers, however, rejected this rec-
ommendation and, as described supra, it is clear from
what occurred later ' during the 7 August meeting when
the' vote to picket was taken,, that the decision to picket
and Respondent's decision' to sponsor the picketing was
unrelated to Respondent 's efforts to represent the sub-
haulers for collective-bargaining purpose's.8 I also note
that Ybarrolaza's 15 August letter' to Chipman Freight
explained that Respondent 's 6 August demand for recog-
nition and bargaining' had been'made in the context of
Respondent 's campaign to organize all the subhaulers
doing business in 'the Port of Oakland companies whose
employees and subhaulers had expressed a desire to be
represented by Respondent . Also, Ybarrolaza's letter fur-
ther explained that Chipman Freight was the only com-
16 As described supra, Ybarrolaza , before the subbaulers voted to
picket, suggested a different way for them to solve their problem. His
recommendation involved , among other things, Chipman Freight 's recog-
nition of Respondent as the subhaulers' representative . The subhaulers,
however, rejected Ybarrolaza's recommendation and voted to picket in-
stead.
7 "In considering a union's motivation for striking or picketing, [the
Board and] courts have found it useful to ask what concessions the com-
pany would have to make to abate the union activity [cases cited]."
NLRB' v. Union de Empleados (National Packing Co.), 455 F.2d 1248 (1st
Cir. 1972).
"'The record fails to establish that when Respondent asked Chipman
Freight to return all of these subhaulers back to work under the terms
and conditions of the recently canceled subhaul agreements , that Re-
spondent was seeking to represent the subhaulers in the negotiations with
Chipman Freight for the terms and conditions of the new subhaul agree-
ments. As a matter of fact, Ybarrolaza's 16 August letter to - Chips'tan
Freight expressly states that "reamsters Local 70 [Respondent] would
not participate in these discussions."
TEAMSTERS LOCAL 70 (CHIPMAN FREIGHT) 349
pany picketed, and that the picketing had nothing to do
,with Respondent's request for recognition, but would
end if all-of Chipman Freight's subhaulers were allowed
to return to work under the terms and conditions of the
recently canceled subhauler's agreements.
H.
The amended, complaint, as further amended at the
hearing, alleges in substance that Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act by picketing
Chipman Freight at Chipman Freight's Oakland termi-
nals and at the entrance reserved for Chipman Freight at
Sea-Land's Oakland facility, with an object of forcing or
requiring the independent contractor subhaulers to cease
doing business with Chipman Freight. I am persuaded
for the reasons set forth, hereinafter that this allegation is
meritorious.
Although Section 8(b)(4)(B) prohibits classic "second-
ary boycotts"-when a union brings economic pressure
against a` neutral employer to obtain economic leverage
against another employer who is engaged with his em-
ployees in a primary dispute-that phrase is not used in
the statute, and the statute is ' not limited to addressing
that wrong. See Maritime Union v. NLRB, 346 F.2d 411,
416-417, fns. 8, 11, 12 (D.C. Cir. 1965). Congress did not
by the passage of Section 8(b)(4)(B) seek to ban only
some forms of secondary conduct; rather, Congress rec-
ognized that "illegal boycotts take many forms" and
"purposefully -drafted [Section 8(b)(4)(B)] in [the] broad-
est terms.',' Longshoremen v Allied International, 456 U.S.
212, 225 (1982). Thus, the statute, comprehends not only
"the familiar patterns of a secondary boycott" but "vari-
ations from those patterns." Maritime Union V. NLRB,
supra, 346 F.2d at 417 fn. 8, quoted in Soft Drink Work-
ers Local 812 v. NLRB, 657 F.2d 1252, 1259 (D.C. Cir.
1980). Accordingly, "[w]here . . act and object fall
comfortably within the letter of the statute, the Board's
hand is to be stayed only upon, a pervasive showing that
they are beyond its spirit." Soft Drink Workers Local 812
v. NLRP, supra, 657 F.2d at 1259. See also Longshoremen
v. Allied International, supra, 456 U.S. at 225 (1982).
In the instant case, as described in detail supra, Re-
spondent picketed Chipman Freight in order to persuade
the independent, contractor subhaulers to cease doing
business with Chipman Freight, with the ultimate object
of forcing Chipman Freight to do business with the sub-
haulers under the terms and conditions of the subhaul
agreements recently canceled by Chipman' Freight,
rather than under the terms and conditions of the new
subhaul agreements being proposed by Chipman Freight.
This picketing. satisfies the standards of prohibited "act"
and prohibited "object" of Section 8(b)(4)(B). For it is
settled law that picketing constitutes "induce[ment] or
encourage[ment]" within the meaning of Section
8(b)(4)(i)9 and also "coerc[ion] or restrain[t]" within the
9 Respondent's picketing took place at Chipman Freight's Oakland ter-
minals where Chipman Freight's employees , represented by another
union, were employed. Also employees of the subhaulers and of Chipman
Freight 's customers picked up and,delivered at these terminals.
meaning of Section 8(b)(4)(ii) (see for example Electrical
Workers IBEW Local 501 v NLRB, 341 U.S. 694, 701-
704 (1951); NLRB v. Teamsters Local 85, 454 F.2d 875,
878 (9th Cir. 1972)) and that a disruption of the neutral
party's business satisfies the "cease doing business" re-
quirement of Section 8(b)(4)(B). _See for example Long-
shoremen v. Allied International, supra at 222-226 fn. 21
(1982). Respondent contends, however, that its picketing
was primary and thus not encompassed by Section
8(b)(4)(B). As discussed below, this contention is without
merit.
The Board indicated in Teamsters Local 814 (Santini
Bros), 208 NLRB 184 (1974), affd. in relevant part 512
F.2d 564, 566-566 (D.C. Cir. 1975), and Musicians Local
16 (Bow & Arrow Manor), 206 NLRB 581, 581-582
(1973), enfd.'512 F.2d 991 (D.C. Cir. 1975), and express-
ly held in Production Workers Local 707 (Checker Taxi),
273 NLRB 1178 (1984), that a union is not engaged in
primary activity-and therefore violates Section
8(b)(4)(B)-when it 'brings economic pressure against a
company to cause a cessation of business between the
company and independent contractors with whom it
does business, where the union has no dispute concerning
the company's own employees. In such circumstances, be
the independent contractors employers themselves (see
Musicians Local 16, supra) or self-employed persons (see
Teamsters Local 814, supra, and Production Workers Local
707, supra), the picketing union satisfies the "act and
object"' language of Section 8(b)(4)(B) and is not in-
volved in a primary labor dispute with the picketed com-
pany-10 Moreover, this 'result is unaffected by the legiti-
10 I recognize that Chipman Freight is not a "wholly unconcerned" or
"neutral" party in the dictionary sense but, in fact, is involved in the dis-
pute herein However, such terms as "neutral" and "wholly uncon-
cerned" are terms of art in 8(b)(4) adjudication and must be understood
in light, of the statutory objectives. As the court explained in Carpet, Li-
noleum, Soft Tile Local 419 v. NLRB, 467 F.2d 392, 400-40l (D.C. Cir.
1972):
[T]he mere fact that the relationship between two parties involves
some economic interdependence is not sufficient in and of itself to
cause one of the parties to lose its "secondary" status , for section
8(b)(4XB) purposes, vis-a-vis the , other party. This conclusion is dic-
tated by the very nature of secondary boycotts. It is intuitively obvi-
ous that a union which is engaged in a labor dispute with one party
will not endeavor to enlist the support of another party , unless there
is some relationship present, direct or indirect, between the two par-
ties This most frequently involves an economic relationship. With•
out the presence of some interrelationship between the two parties, it
would be an exercise in futility for the Union to seek the aid of the
second , party, since it would necessarily have no possible means of
providing meaningful support for the union . It is therefore logically
apparent that something more than mere economic interdependence
between two parties is required before one loses its "secondary"
status with respect to the labor disputes of the other.
Chipman Freight's status as a neutral does not derive from a complete
lack of involvement in the dispute, but from its noninvolvement in a pri-
mary labor dispute. Similarly, the fact that Chipman Freight possesses the
power to end the picketing by agreeing to the Respondent's demands
does not render the dispute "primary"; for, as, indicated in Carpet Layers,
supra, it is not unusual for a secondary employer to possess the power to
resolve-or substantially aid the resolution of-a labor dispute. Yet that
power has never been deemed sufficient to convert the secondary em-
ployer into a primary. See Electrical Workers IBEW Local 399 (Illinois
Bell), 235 NLRB 555, 555-556, 559-562 (1978), enfd. 601 F.2d 593 (7th
Cit. 1979).
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
macy of the union's ultimate goal. Production Workers
Local 707 (Checker Taxi), 273 NLRB 1178 . See also Mu-
sical Artists (Washington School of Ballet), 157 NLRB 735,
741-742 (1966); Federation de Musicos Local 468 (Pat
Mills & Co.), 246 NLRB 782, 785-787 (1979)_ Because
Respondent engaged in just such secondary conduct
here-picketing Chipman Freight to cause a cessation of
business with their independent contractor subhauler,l t
in the absence of a dispute concerning Chipman Freight's
employees-the General Counsel has established, as al-
leged in the complaint, Respondent violated Section
8(b)(4)(i) and (ii)(B) of the Act. Production Workers Local
707 (Checker-Taxi), supra.12
I i It is clear that a natural consequence of Respondent's picketing was
the cessation of-business between Chipman Freight and the independent
contractor subhaulers . Respondent had every reason to foresee that the
subhaulers, in deference to the picket line, would not resume doing busi-
ness with Chipman Freight until the ultimate object of the picketing was
accomplished . Under the circumstances , a prohibited cease-doing-business
object was necessarily subsumed with Respondent's ultimate object for
picketing , and Respondent necessarily had this subsidiary object regard-
less of its ultimate object. Also, with respect to the picketing's ultimate
object-requiring Chipman Freight to do business with the independent
contractor subhaulers under the terms and conditions of the subhaul
agreements recently canceled by Chipman Freight, rather than under the
terms and conditions of the new agreements being proposed by Chipman
Freight-it required Chipman 'Freight to change its method of doing
business with the independent contractor subhaulers in significant re-
spects, thus satisfying the "cease doing business " requirement of Section
8(bX4)(B). See NLRB v Operating Engineers Local 85, 400 U.S. 297
(1971). Chipman Freight was faced with the option of suffering a severe
disruption of its business, including a loss of customers , or doing business
with the independent contractor subhaulers under the terms and condi-
tions dictated by the Respondent's picket line, rather than under the
terms and conditions of the new subhaul agreements being proposed by
Chipman Freight.
12 I agree with the General Counsel and Chipman Freight that the
facts in the instant case fall squarely within the rule set forth in Checker
Taxi. There, two taxicab companies employed drivers who leased cabs
from the companies. The drivers were independent contractors. The re-
spondent unions demanded that the companies recognize the unions as
the leased cab drivers' bargaining representative and negotiate an agree-
ment establishing uniform conditions regarding the leasing of cabs. The
companies rejected this demand and the Unions picketed the companies'
garages used by the leased cab drivers, with picket signs stating that the
leased cab drivers were on strike and asking that they not lease cabs until
an agreement was reached regarding their working conditions. It was dis-
puted that the unions -picketed in order to persuade the independent con-
tractor leased cab drivers to cease doing business with the companies,
with the ultimate goal of forcing the companies to recognize and bargain
with the unions. The Board found that "[b]y picketing the Charging Par-
ties with an object of interrupting the leases between the Charging Par-
ties and the leased cab drivers ... the Respondents have violated Sec-
tion 8(b)(4)(i) and (ii)(B) of the Act." In the instant case, as I have found
supra, Respondent picketed Chipman Freight with picket signs informing
the independent contractor subhaulers that Chipman Freight was unfair
to them. Respondent picketed in order to persuade the subhaulers to
cease doing business with Chipman Freight, with the ultimate object of
forcing Chipman Freight to do business with the subhaulers under the
terms and conditions of the subhaulers agreements previously canceled
by Chipman Freight, rather than under the terms and conditions of the
new agreement being proposed to the subhaulers by Chipman Freight.
Plainly, one of the objects of Respondent 's picketing-requiring Chipman
Freight to do business with the independent contractor subhaulers only
under the terms and conditions of the canceled subhaul agreements rather
than under 'the new agreements being proposed by Chipman Freight-
was similar in significant respects to "an object of interrupting the leases
between the Charging Parties and the leased cab drivers" found by the
Board in Checker Taxi to have constituted a prohibited cease-doing-busi-
ness object.
CONCLUSIONS OF LAW
1. Respondent Brotherhood of Teamsters and Auto
Truck Drivers, Local 70 of Alameda County, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the
Act.
2. By picketing Chipman Freight Services with an
object of interrupting the business relationships between
Chipman Freight Services and the independent contrac-
tor subhaulers, the Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, shall recommend that it be or-
dered to cease and desist and take certain affirmative
action designed to effectuate the policies of the Act.
I have granted the General Counsel's request for a
broad remedial order because in Teamsters Local 70 (De-
partment of the Navy), 261 NLRB 496 (1982), the Board
found that respondent violated Section 8(b)(4)(i) and
(ii)(B) of the Act and remedied the violation with a
broad remedial order inasmuch as respondent's proclivity
to violate Section 8(b)(4)(B) had been established. Id. at
502-503. Respondent here urges that a broad remedial
order is not appropriate because it had legitimate
grounds for believing that its picketing was not prohibit-
ed by Section 8(b)(4)(B) of the Act and 'because of the
lapse of time between its picketing and the Board's order
in Department of the Navy. I disagree. As I have indicat-
ed supra, any doubt that a union is not engaged in pri-
mary activity when it brings economic pressure against a
company to cause cessation of business,between the-com-
pany and independent contractors with whom it does
business , when the union has no dispute concerning the
company's employees, was removed by the Board's deci-
sion in Checker Taxi, which was issued approximately 6
months prior to the Respondent's picketing. And, with
respect to the lapse of time between the Respondent's
picketing herein and the broad remedial order - issued
against Respondent in Department of the Navy, the order
which issued 29 April 1982 was not based merely on the
1981 picketing involved in that case, but on other picket-
ing of Respondent which violated Section 8(b)(4)(B) en-
gaged in during the 1960s, the 1970s, and the 1980s.13 In
view of these circumstances, I am not persuaded that the
approximately 3 years which elapsed since the Board's
order in Department of the Navy and Respondent's illegal
picketing herein, constitute a sufficient lapse of time so as
to make a broad remedial order inappropriate.
[Recommended Order omitted from publication.]
is The broad remedial order issued in Department of the Navy was
based on respondent's proclivity to violate Sec. 8(b)(4)(B) of the Act as
was evidenced by Board orders issued in 1969, 1971, 1978, and 1981 as
well as by Respondent's illegal conduct found in that case. Teamsters
Local 70, supra, 261 NLRB at 502-503.