Truck Drivers & Helpers Local 592

National Labor Relations Board - Board Decisions

Mar 25, 1970

181 N.L.R.B. 790 (N.L.R.B. 1970)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truck Drivers & Helpers Local 'Union No. 592,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Estes Express Lines, Inc.
Case 5-CC-456
March 25, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 8, 1969, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices alleged in the
complaint and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof, and Counsel for the General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The facts, which are more fully described by the
Trial Examiner, may be summarized as follows-
Estes Express Lines, Inc., the primary employer
herein, operates a motor freight terminal in
Richmond, Virginia. Respondent is the certified
bargaining representative of Estes' drivers. During
the course of a strike lasting from February 16 to
April 4, 1969, Respondent engaged in various forms
of picketing, including ambulatory picketing of
Estes' trucks. Respondent's picketing conformed to
the standards of presumptively lawful common-situs
picketing set forth in Moore Dry Dock '
Additionally, Respondent took several measures
designed to limit the secondary effects of the
common-situs picketing
Thus, during the course of two meetings held for
Estes' employees on February 15 and 16,
Respondent took the following cautionary steps At
the February 15 meeting, it caused to be read to
employees a letter stating, in part, that the stewards
at all Union freight terminals should be advised that
'Sailors' Union of the Pacific AFL, 92 NLRB 547
the National Master Freight Agreement did not give
Union employees the right to stop work while an
Estes vehicle and driver were being picketed at
another carrier's terminal. At the February 16
meeting, the right to conduct ambulatory picketing
of Estes trucks was discussed. Instructions were read
to employees which emphasized the manner in which
picketing must be conducted at the premises of
companies other than Estes in order to conform to
Moore Dry Dock standards. About this time, cards
were given to employees which they were instructed
to give to anyone inquiring about the picketing The
cards read that the bearer had "been instructed to
say nothing while near this terminal "
The record also shows that on February 17, a
Monday, Respondent sent letters, explaining that it
would engage in ambulatory picketing, to the
approximately 125 secondary employers likely to be
affected. These employers were advised in the letter
that the picketing would- conform to Moore Dry
Dock standards, and that it would be directed
exclusively at Estes employees. Permission was
sought to enter their premises in order to picket the
Estes drivers more closely. These employers were
informed that, if this permission were denied,
picketing outside their gates would occur. In
concluding, the letter requested the cooperation of
the secondary employer, and asked that he cease
doing business with Estes during the course of the
strike. The letter asked the addressee not to consider
this a "threat," but stated that his cooperation
would "greatly assist in forcing Estes Express Lines
to enter into a contract" for its employees.
Such was the factual background when, on
February 18, Respondent, having waited a day to
allow the letters to reach secondary employers,
began its ambulatory picketing Throughout the
strike, such picketing lasted only while the Estes
truck was on the premises of the secondary
employer. The picket signs expressly stated that the
picketing was addressed only to Estes employees. Of
the 120 instances of ambulatory picketing, the
General Counsel offered only three episodes
occurring during the course of picketing which he
considers indicative of an unlawful secondary
objective behind the picketing. These incidents are
also alleged to be independent violations of Section
8(b)(4)(ii)(B). They are set forth more fully in the
Trial Examiner's decision. In essence:
(a) On February 18, the first day of the picketing,
Hodson told Frye, warehouse manager of Virginia
Bonded Warehouse, that he would give him "two
minutes to get the [Estes] truck outside the gate,"
and if Frye did not, Hodson said he would "throw a
picket line up outside." Frye ordered the truck off
Bonded's property until he contacted his superior;
the latter, however, instructed Frye to accept the
Estes delivery. When Frye relayed this information
to Hodson, picketing began. Thereafter, Respondent
picketed at Bonded's gate whenever an Estes truck
was on the premises.
181 NLRB No. 121
TRUCK DRIVERS & HELPERS LOCAL 592 791
(b) On the afternoon of February 18, Hodson and
two pickets followed another Estes truck to Motor
Freight Express' premises. Hodson told Moisoff,
Motor Freight's dispatcher, that Respondent would
be putting up a picket line at the gate. Moisoff
asked, "What the hell did I do now?" Hodson
replied; "You have an Estes truck here." Moisoff
ordered the Estes truck off the property.
(c) Immediately thereafter, Hodson followed the
same truck to R.C. Motor Lines. Hodson entered
R.C.'s office, telling Price, R.C.'s sales manager,
and Cumbea, its operations manager, that Price was
"in trouble," and asking if they had received
Respondent's letter. Price said he had. Hodson
stated that unless the Estes truck left, the picketing
would start. At Price's instruction, the Estes truck
was ordered away. Cumbea testified that Hodson
stated that Respondent's picketing would last only
while the Estes truck was on the premises.
On March 2, after the picketing had been in
progress almost 2 weeks, a general union
membership meeting was held, attended by some
150 members employed by various Richmond area
firms. Once again, instructions for lawful
ambulatory picketing were read At that meeting,
when Union President Hodson was asked by one of
the members if an individual crossing the picket
lines could be brought up on charges before the
Union's Executive Board, he replied "that any
member could charge another member with conduct
unbecoming a member at any time he so desired. It
would be heard before the Executive Board."
Similarly, when Hodson was asked about crossing a
picket line, he merely stated that members "would
have to use a little discretion." However, the Trial
Examiner found no evidence that any members were
in fact threatened, fined, or in any way interfered
with in respect to their actions in the ambulatory
picketing areas.
The Trial Examiner found that the remarks of
Hodson on the first day of the picketing, coupled
with the request in Respondent's letter to secondary
employers that they cease doing business with Estes
during the course of the strike and Hodson's
statements at the March 2 meeting, indicated that
the Union intended to give the secondary employer
two choices: cease doing business with Estes or face
a picket line "with all the normal consequences that
a picket line brings no matter how `primary' it is
painted." The Trial Examiner found the entire
course of picketing violative of Sections 8(b)(4)(i)
and (ii)(B), and the three threats to picket violative
of Section 8(b)(4)(ii)(B). He did not find Hodson's
statements at the March 2 union meeting to be
violative of Section 8(b)(4)(i)(B), as alleged in the
complaint.
Respondent Union excepts generally to the Trial
Examiner's conclusions that the three encounters on
February 18 constituted threats and that
Respondent's picketing had an unlawful objective in
violation of Sections 8(b)(4)(i) and (ii)(B) of the Act
We are in essential agreement with the position
taken in these exceptions. Contrary to the Trial
Examiner, we are unable to conclude from the
record as a whole that Respondent's conduct
evidences an intent or object proscribed by
subsection (B) of Sections 8(b)(4)(i) and (ii) of the
Act.
The Trial Examiner properly notes, and, indeed,
no pr.rty disputes, that the picketing itself was
rigorously tailored to meet the prescriptions of
Moore Dry Dock The picket signs unambiguously
designated Estes as the primary disputant, and the
picketing itself lasted only as long as the Estes
trucks remained on the property of the neutral
employer. As a result, the neutral employers
themselves, and all others working or having
business there, were notified that Respondent's
dispute was solely with Estes. In this context, we do
not find Hodson's remarks to neutral employers on
the three occasions described above to constitute
threats, coercion, or restraint within the meaning of
Section 8(b)(4)(ii)(B). In each of the three
statements, Hodson announced his intention to start
picketing if the Estes truck remained on the
neutral's property. We find this to be nothing more
than a legitimate expression of Respondent's
intention to exercise its unquestioned right to picket
Estes at the neutral employers' sites in the lawful
manner prescribed by the Board. Such statements
do not constitute threats within the meaning of
Section 8(b)(4) of the Act, contrary to the Trial
Examiner's finding, nor are they evidence that the
picketing which followed was motivated by an
unlawful objective.
Similarly, we find no evidence of an unlawful
motive in the letter sent by Respondent to the
neutral employers, stating its intention to picket
Estes trucks while they were on the premises of the
neutral, and announcing that such picketing would
be in strict conformity with Moore Dry Dock
standards. Quite to the contrary, the letter, by
assuring the neutral employers that any such
picketing would meet Moore Dry Dock standards,
and by disclaiming any intention to threaten the
neutral, negates any unlawful secondary objective.
For these reasons, and when viewed in the context
of the letter as a whole, the mere request, made in
the last paragraph of the letter, that the neutral
employer cease doing business with the primary
employer during the course of the strike, cannot be
viewed as substantial evidence of an unlawful intent
We note that a bare request addressed to a neutral
employer asking that it cease doing business with a
struck primary is not itself violative of Section
8(b)(4)(ii)(B).2 For all these reasons, we perceive in
the letter nothing which would support the General
Counsel's theory that the picketing of February 18
'N L R B v Servette , Inc, 377 U S 46
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and thereafter had a proscribed secondary objective.3
We regard Hodson's equivocal statements at the
March 2 meeting as an equally untenable basis for
inferring that the picketing was tainted by an
unlawful object.
All these considerations in combination persuade
us, contrary to the Trial Examiner, that the record
as a whole does not reflect an illegal object behind
the picketing by Respondent. Accordingly, we shall
dismiss the complaint in its entirety.
ORDER
It is hereby ordered that the complaint be, and it
hereby is, dismissed.
CHAIRMAN MCCULLOCH, dissenting:
Contrary to my colleagues, I would affirm the
Trial Examiner's carefully reasoned decision As the
Board, Member Fanning dissenting, pointed out in
L G Electric,' the ultimate question in these
common-situs picketing situations is the union's true
object. While the picketing itself may have
conformed to Moore Dry Dock standards, that fact
alone is not determinative.' In my opinion, the
evidence as a whole shows that Respondent's true
objective, at least in part, was to reach the
secondary employers and their employees by its
picketing. The letter sent to the neutral employers
strongly implied that the picketing at their sites and
the cessation of business between themselves and
Estes were inextricably interwoven in the Union's
motivation. Against this backdrop, Hodson's
remarks to the three neutrals cannot be interpreted
other than as ultimatums to cease doing business
with Estes or face the consequences of a picket line.
Hodson made it unmistakably clear that the
picketing was intended to provide economic leverage
against the primary employer by enmeshing the
secondary employers with whom the primary was
doing business The "external evidence," I.B E. W v.
Local 480, supra, at 1089, establishes beyond doubt
that the picketing was- meant to coerce the neutral
employers and induce their employees to strike,
rather than merely to follow the primary dispute in
a lawful manner Thus, like the Trial Examiner, I
would find that Hodson's remarks to the three
employers violated Section 8(b)(4)(ii)(B) and, the
Moore Dry Dock presumption having been rebutted
on the record viewed as a whole, I would affirm the
Trial Examiner's findings of violations of Sections
8(b)(4)(i) and (ii)(B) of the Act.
'See General Drivers, Chauffeurs, and Helpers, Local Union No 886
(The Stephens Company), 133 NLRB 1393
'I BE W, Local Union No 11. AFL-CIO (L G Electric Contractors,
Inc ). 154 NLRB 766
'As the Court of Appeals for the District of Columbia put it in I B E W
Local 480, AFL-CIO v N L R B, 413 F 2d 1085 "[C]ompliance with the
Moore Dry Dock standards is 'presumptive ' of valid primary picketing,
General Electric, supra , 366 U S at 677, but the Board is not thereby
relieved of carrying out its duty under the Act determination of whether
the object of the picketing is truly primary or not " See also N L R B v
Northern California District Council of Hod Carriers, 389 F 2d 721
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner Upon a charge and
amended charge of unfair labor practices filed by Estes
Express Lines, Inc , herein called Estes or Charging Party,
on February 19 and April 3, 1969, respectively, against
the Respondent Union, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing on April 8, 1969, alleging that
Respondent had engaged in unfair labor practices within
the meaning of Section 8(b)(4)(i) and (n)(B) of the
National Labor Relations Act, herein called the Act
Respondent filed an answer admitting certain allegations
of the complaint but denying the commission of any
unfair labor practices, and a hearing was held before me
in Richmond, Virginia, on May 14, 1969, at which all
parties were represented. Subsequent to the hearing,
General Counsel and Respondent, filed briefs which have
been carefully considered
Upon the entire record' in the case and from my
observation of the witnesses, I make the following-
FINDINGS OF FACT
1. JURISDICTION OF THE BOARD
Estes, a Virginia corporation with its principal offices
in Richmond, Virginia, operates motor freight terminals
in various cities in Virginia and North Carolina, including
a terminal at Richmond from which it is engaged in the
business of transportation of freight in Virginia and North
Carolina. In the operation of its business, Estes' annual
revenues from freight received at its terminals from
outside the Commonwealth of Virginia are in excess of
$50,000 and it annually receives more than $50,000 from
its transportation of freight to and from public
warehousing facilities, including Virginia Bonded
Warehouse and terminals operated by interstate motor
freight carriers including Motor Freight Express and R
C. Motor Lines, Inc
I find that Estes is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
The complaint alleged, the answer admitted and I find
that Virginia Bonded Warehouse, Motor Freight Express
and R C Motor Lines, Inc. are persons engaged in
commerce or in an industry affecting commerce within the
meaning of Sections 2(6) and (7) and 8(b)(4) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
The basic issue in the case is whether ambulatory
picketing which outwardly conformed with the standards
of Moore Dry Dock' was for an object proscribed by
Section 8(b)(4)(i) and (ii)(B) of the Act
'Respondent 's motion to correct the transcript is hereby granted
'Sailors ' Union of the Pacific, AFL, 92 NLRB 547
TRUCK DRIVERS & HELPERS LOCAL 592 793
A The Facts
Since May 3, 1968, Respondent has been the certified
representative of certain Estes' employees who work out
of its Richmond, Virginia, terminal Unable to reach a
collective-bargaining agreement with Estes, the Union
struck Estes on Sunday, February 16, 1969, and continued
to strike and picket until April 4, 1969. In support of its
strike, the Union picketed at many of Estes' terminals and
it also engaged in ambulatory picketing of Estes'
equipment.'
The Union met with the Estes employees on February
15 and 16 to discuss the labor dispute and the plan for
picketing During the February 15 meeting, the Union
read a letter to employees which stated in part that the
stewards at all Union freight terminals should be advised
that the National Master Freight Agreement did not give
Union employees the right to stop work while an Estes
vehicle and driver were being picketed at another carrier's
terminal, but it added that Union employees could refuse
to unload or load the Estes vehicle while it was being
picketed The employees were advised that they would be
given picketing instructions at the meeting the next day.
At the meeting on Sunday, February 16, the Union
discussed and explained to employees its right to conduct
ambulatory picketing of Estes' trucks Instructions were
read to employees which emphasized how picketing must
be conducted at the premises of companies other than
Estes in order to conform with Moore Dry Dock
standards Cards were also distributed to employees
around this time which they were supposed to give to
anyone who asked them anything about their picketing
The cards read that the bearer had "been instructed to say
nothing while near this terminal "
The Union conducted no picketing of Estes trucks at
the premises of any other employer on February 16 or 17
Hodson, president of the Union, explained that picketing
at secondary employers was delayed until the secondary
employers could receive a letter which the Union had
directed to them explaining its picketing. The letters to the
secondary employers who were customers of Estes were
sent beginning on Monday, February 17, 1969
Approximately 125 letters were sent by certified mail and
the record shows the dates on which they were received
The letter, a copy of which is in evidence, advised the
recipient that the Union was on strike against Estes and
that, since Estes' drivers spent most of their time making
deliveries, the Union found it necessary to picket those
drivers where it found them, namely, while they were on
the secondary employer's premises In the letter, the
writer, in some detail, informed the secondary employers
that the picketing would be conducted in conformity with
Moore Dry Dock standards For example, the letter stated
that the picketing would be directed to Estes' employees
and not the secondary employer's employees, and asked
permission to enter the premises of the secondary
employer so that picketing could be as close as possible to
the Estes driver. If this permission were denied, the letter
.tated, as it was in the case of the employers involved in
the incidents in this case, the Union would picket dust
outside the premises The letter concluded by requesting
the secondary employer's "cooperation" and asking that
he "cease doing business with Estes Express Lines during
the course of this strike " This request, however, was
'Picketing trucks of a primary employer at the premises of customers is
ambulatory picketing and the truck is a roving situs Annual Report
National Labor Relations Board (1962) pp 167-169
explained as not being a "threat," but it was also noted
that the secondary employer could "readily understand
that (his) cooperation will greatly assist in forcing Estes
Express Lines to enter into a contract "
On Tuesday, February 18, the Union began ambulatory
picketing of Estes trucks, that is to say, Estes trucks were
followed to the premises of the secondary employer and
picketed only when the truck and driver were present. The
ambulatory picket signs read.
Estes Express Lines on strike This picketing is
directed only to employees of Estes Express Company
unfair Teamsters Local Union No 592
and
Estes Express Lines on strike Does not have a
contract with Teamsters Local Union No 592 This
picketing is directed only to employees of Estes Express
Lines Teamsters Local Union No 592.
There were approximately 120 instances of ambulatory
picketing, and apart from the three incidents to be
described next, it was agreed that the picketing appeared
to conform with all the Moore Dry Dock standards.
On February 18, at approximately noon, Hodson,
president of the Union, and two pickets followed an Estes
truck, operated by Robert Ellis, to Virginia Bonded
Warehouse. When the truck was driven on to the Virginia
Bonded property, Hodson entered the office and asked the
receptionist whether the company had received notice of
the Estes strike. The receptionist said she knew about it
because she had seen the pickets when she drove by the
Estes terminal the day before Frye, the warehouse
manager was called, and he and Hodson had a
conversation
Frye testified, and I credit his testimony, that Hodson
told him that he had been notified about the strike and
there was an Estes truck on his property. Frye said he
knew nothing about the strike. The two men went outside
and Frye observed the Estes truck Frye spoke to the
driver, and while the driver was still present, Hodson told
Frye that he would give him "two minutes to get the truck
outside the gate," and if he did not, he would "throw a
picket line up" outside. Frye asked Ellis to take the load
outside until he could get in touch with his superiors.
Frye's superior instructed him to permit the Estes truck
on the property and accept delivery Frye passed this
information on to Hodson who then had his picket start
patrolling outside the gate with the sign which has been
described above.
After February 18, the Union kept a picket sitting in an
automobile outside Virginia Bonded's gate every day
When an Estes truck approached, he would begin to
picket Frye said there was no "trouble," but that on
several occasions union drivers employed by other
companies, such as, Roadway Express and Hemingway,
would not cross the picket line. On another occasion,
other drivers who were already inside the property would
not leave while the picket remained. As a result of these
interruptions, Virginia Bonded reduced substantially the
amount of business it normally did with Estes '
'Ellis corroborated Frye in regard to Hodson ' s statement that picketing
would begin in 2 minutes if the Estes truck were still on the property
Hodson also admitted making the statement , but he said he made it
conditional on Frye having received the Union's letter Frye at the time
had not received the Union's February 17 letter sent to all secondary
employers, but I do not think it very significant whether he had or not
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hodson and two pickets followed another Estes truck
driven by Wilbur Norris to the terminal of Motor Freight
Express on the afternoon of February 18 According to
the uncontradicted testimony of Norris and Moisoff,
Motor Freight ' s dispatcher , Hodson left the pickets
outside of Motor Freight ' s gate and entered Motor
Freight's office when Norris drove on to the company's
premises Norris presented his freight bills to Moisoff and
then a conversation between Moisoff and Hodson
occurred Moisoff recalled Hodson mentioning that he
would put a picket line in front of Motor Freight, but he
could not remember his exact words In any case, Moisoff
asked, "What the hell did I do now" Hodson replied,
"You have an Estes truck here " Moisoff said that since
he knew how a picket line would affect his men, he told
the Estes driver that he could not accept the freight
Norris left the property and Hodson followed him. As
Norris drove away, Hodson picked up the pickets and left
the area Moisoff said he had not seen the letter which the
Union had sent to all employers advising them of the
Estes strike and its picketing plans, but he knew about the
strike
Norris' next trip that day was to R C Motor Lines to
deliver freight , and Hodson and the pickets followed him
there Norris presented his way bills to the warehouse
foreman who at first told him where to unload, but soon
returned and informed him that he could not accept the
freight . Price , sales manager , and Cumbea , operations
manager for R C., said the freight was not accepted
because Hodson made an appearance in the company's
office According to their credited testimony , Hodson
entered and stated that Price was in "trouble " Hodson
asked Price if he had not received the Union's letter Price
said he had, and Hodson told him that there was an Estes
truck backing up to the company ' s platform that moment,
adding that he had men ready to picket , and, unless the
truck left the premises , picketing would start Price told
Hodson that he did not want problems and would ask the
Estes driver not to unload , but to leave the property Price
instructed his foreman accordingly, and Hodson thanked
him and left Cumbea admitted that Hodson explained
that the Union intended to picket R C in front of the
terminal ' s entrance while an Estes truck was on the
property , but would remove the picket when the Estes
truck departed
In addition to the three incidents dust set forth of
alleged threats at the premises of other employers,
General Counsel relied on certain occurrences at a Union
meeting as showing improper inducement as well as
revealing Respondent ' s illegal object in picketing As
noted earlier, the Union had meetings on February 15 and
16 to discuss the Estes dispute and the picketing. The
Union also held a general membership meeting on March
2 which was attended by approximately 150 members
employed by various trucking companies in the Richmond
area It is uncontradicted that instructions for ambulatory
picketing were again read to the members and that they
were also instructed that a provision of the National
Freight agreement regarding the right to respect a primary
picket line did not apply when ambulatory picketing was
being used Hodson told the members that in such a case
they had no right to cease work when there was a picket
at the gate of their employer . On the other hand, and this
is what General Counsel primarily relies on, a member
attempted to put a motion on the floor to the effect that
anyone who crossed a picket line would be fined
Although Hodson ruled the movant out of order , when he
was asked by another member if an individual who
crossed a picket line could be brought up on charges
before the Union's Executive Board, he replied " that any
member could charge another member with conduct
unbecoming a member at any time he so desired It would
be heard before the Executive Board " Hodson also
conceded that when he was asked by members about
crossing a picket line, he told them "they would have to
use a little discretion ." On the other hand , it also appears
that there is no evidence that any driver member was
threatened , fined or in any way interfered with in respect
to his actions in the ambulatory picketing area.'
B Analysis and Conclusions
Early in the administration of the Act it was recognized
that despite the literal language of Section 8(b)(4),
picketing at the situs of the dispute and appeals there to
employees of neutral employers did not come within the
proscription of the Section The harm to the neutral
secondary employer in such a case was held to be
incidental to a traditional lawful primary strike
This case involves the "common situs picketing
doctrine" which must be invoked where the primary
employer with which the Union has the dispute and other
employers with which it has not occupy the same situs
such as at a construction site or, as here, where the situs
(the truck and driver ) travels to the premises of other
employers .' In Moore Dry Dock , the Board stated that in
such a situation where the secondary employer "is
harboring the situs of a dispute between a union and a
primary employer, the right of neither the union to picket
nor of the secondary employer to be free from picketing
can be absolute "8 The Board then proceeded to
establish four standards to govern the picketing and which
would make it primary if complied with These standards
have been approved by the courts ' and although they
seemed at first to have been somewhat mechanically
applied, it was later made plain by the Board and courts
that the standards were evidentiary only and compliance
with them created only a presumption that the union was
attempting to limit its dispute to the primary employer"'
In these later cases , the Board made it clear , and the
courts approved the rationale , that the standards were to
be "regarded as aids in determining the underlying
question of statutory violation ," and that in any of these
common situs situations "the ultimate determination
depends on the union ' s objective.""
Since the Moore Dry Dock standards are not absolutes
but only evidentiary rules used in determining an object of
picketing , the Board , with court approval and
encouragement has used external evidence , such as
conduct or conversation away from the picket line, in
'The incident with respect to Hodson processing a grievance for a
steward who was discharged for refusing to work when an Estes truck was
present is too equivocal to be considered in the decision in this case
"N L R B v International Rice Milling Co, 341 U S 665
'See N L R B v Local 294, Teamsters lK C Refrigeration Transport
Co 1. 284 F 2d 887 (C A 2)
'Moore Dry Dock , supra at 549
'Local 761 I U E v NLRB, 366 U S 667 , 677, NLRB v Local
294 Teamsters, supra, I B E W . Local 480 v N L R B , 413 F 2d 1085
(CADC)
'"Sales Drivers , Local Union 859 v N L R B, 229 F 2d 514, 517
(C A D C ), N L R B v Local 294 , Teamsters , supra, I B E W , Local 861
(Plausche Electric, Inc ), 135 NLRB 250, 1 BE W Local Union No II,
(L G Electric Contractors ), 154 NLRB 765
"I B E W Local Union No lI (L G Electric Contractors ), supra, at
767
TRUCK DRIVERS & HELPERS LOCAL 592 795
deciding the ultimate issue ' 3 It also has long been
established that the "ultimate issue" is whether an object
of the picketing is improper even if another object exists.
This is so even if the other object is a legal one."
General Counsel invokes these well known principles
and contends that Hodson's conversations with the
representatives of the three secondary employers described
above and his reaction to questions from the floor at the
March 2 meeting of the Union rebut the presumption that
the picketing was primary because the Union had
ostensibly complied with all Moore Dry Dock standards,
which he concedes, and reveal that the picketing at the
secondary employers was conducted, "at least in part," to
enmesh secondary employers and their employees in the
primary dispute for an object of forcing the secondary
employers to cease doing business with Estes "
The Union, on the other hand, generally accepting the
principles of the cases cited, emphasizing, however, the
approximately 120 acts of picketing which did literally
comply with Moore Dry Dock standards, and its other
efforts to advise secondary employers, as well as its
members, that it was engaging in ambulatory picketing in
accord with such standards, argues that three incidents at
secondary employers, even if improper, which it does not
concede, and anything Hodson said at the March 2
meeting, are not enough to rebut the presumption of
legality which arose from its compliance with the
standards since the incidents were isolated." Relying also
on N L R B v. Servette, Inc , 377 U.S 46, the Union
contends that its letter to all secondary employers
containing a request that they cease doing business with
Estes during the strike and any requests that Hodson
made to the three secondary employers to remove Estes
trucks from their properties were not prohibited as threats
or improper inducement because a threat to engage in
"protected conduct," namely, Moore Dry Dock picketing,
is itself protected
Since all common situs picketing is designed to have or
has the necessary effect of secondary inducement and no
one can say with any certainty, in the absence of a clear
admission , whether the secondary effects were intended or
merely hoped for, it is not surprising that the solution to
the case does not immediately jump forth from the
statement of facts Nevertheless, in my opinion, the
conduct of the Union in certain respects supports a
finding, which I make, that the unlawful objective
denounced by the statute actually existed Before this
evidence is underscored, however, certain factors should
be emphasized in fairness to the Union's position.
"Local 761, 1 U E v N L R B [General Electric/. 366 U S 667, 677,
IBEW,Local 480,v NLRB,413F2d 1085 (C A D C ), N L R B v
Local 294, Teamsters lK C Refrigeration Transport Companvl. 284 F 2d
887 (C A 2 ), Sales Drivers v N L R B [Campbell Coal Company/, 229
F 2d 544 (C A D C ), Local 134, 1 B E W (Polly Electric Company). 175
N LRB No 88, I B E W. Local Union No I/. supra, I B E W, Local
Union No 903, 154 NLRB 169
'N L R B v Denver Building & Constructions Trades Council, 341
U S 657, 689, Northeastern Indiana Building and Construction Trades
Council (Centlivre Village Apartments ), 148 NLRB 854 It was on this
basis that I ruled at the beginning of the hearing that Estes ' alleged refusal
to bargain in good faith with the Union , set up as an affirmative defense in
the answer , was irrelevant See also, Annual Report National Labor
Relations Board ( 1949) pp 88-89
"General Counsel ' s brief
"Teamsters Local 379 ( Catalano Bros , Inc ), 175 NLRB No 74, Truck
Drivers and Helpers Local Union No 728, IBT (Brown Transport Corp ),
144 NLRB 590, set aside 334 F 2d 30 (C A 5), on remand 149 NLRB
421
First of all, the fact that only three alleged improper
approaches were made to employers when there were
approximately 120 picketing occasions in a period of
about five weeks cannot be brushed aside When this is
taken with the Union's instructions to its pickets and its
letters to all secondary employers, letters and instructions
like those which the Board has appeared to approve in
other cases, all indicating an attempt to minimize the
impact of the picketing on secondary employers, these
three deviations must be carefully scrutinized in the
context to determine whether they are accidental (isolated)
or illustrative On balance, in the context, I think they
tainted the picketing entirely, regardless of literal
compliance with Moore Dry Dock standards
Unlike the letters in Brown Transport Corp and other
cases" the Union's letter in this case, after requesting
permission to come upon the secondary employer's
premises to picket Estes trucks, advising that, it such is
denied, picketing will take place outside the secondary's
gate and claiming that the picketing is directed at Estes'
employees, not the secondary's, and will be conducted in
conformity with Moore Dry Dock standards, concludes by
asking the secondary employer to "cease doing business
with Estes Express Lines during the course or' the strike
because this kind of "cooperation" will "greatly assist in
forcing Estes Express Lines" to settle the dispute This, it
seems to me, is a clear announcement that the secondary
employer has two choices He can cease doing business
with Estes or he can have a picket line with all the normal
consequences that a picket line brings no matter how
"primary" it is painted This would appear to be a threat
and a restraint within the meaning of the Act and illegal
unless there is something in Servette which saves it I do
not think there is In Servette the Union appealed to store
managers to stop handling a product and threatened to
engage in publicity other than picketing for the purpose of
advising the public that a product was being distributed by
that employer, but produced by one with which the union
had a dispute This the union had an absolute right to do
under the proviso to Section 8(b)(4), and so the court
succinctly announced that the warnings to publicize were
not prohibited "threats," for the "statutory protection for
the distribution of handbills would be undermined if a
threat to engage in protected conduct were not itself
protected."" The Union has no absolute right to engage in
roving situs ambulatory type picketing no matter how
closely it adheres to Moore Dry Dock standards. It has
only the right to the benefit of the presumption of legality
if it does -- a presumption subject to being rebutted, as
we have seen from the cases. This may be a subtle
distinction, but its important and the kind of difference on
which these cases appear to turn. I find that the Union's
request for "cooperation," worded as it was, is substantial
evidence that it intended its picketing to have secondary
effects leading to a cessation of business by the employers
involved
The letter throws light on Hodson's statements and
conduct when he visited the three secondary employers in
this case, and, conversely, his statements and actions are
in accord with the intent to impose unlawful pressure on
the secondary employer which I have found the letter
reveals. When Hodson mentioned a picket line to Motor
"Truck Drivers and Helpers Local Union No 728, IBT (Brown
Transport Corp ). 144 NLRB 590, General Drivers. Local Union No 886
(The Stephens Company). 133 NLRB 1393, 1398-99, District Council of
Painters (Golding & Jones ), 144 NLRB 1523
"N L R B v Servette, Inc . supra at 57
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freight's dispatcher, and the dispatcher said "What the
hell did I do now)", Hodson told him he had an Estes
truck on the premises. Moisoff, the dispatcher, knowing
how his men would react to a picket line, sent the truck
away In Virginia Bonded's case, Hodson gave Frye "two
minutes to get the (Estes) truck outside the gate" or
picketing would begin outside, and he told Price, of R C.
Motor Lines, that he was in trouble because he had an
Estes truck on his property and the solution for his
"trouble" was to move the truck outside. If he did not,
picketing would start. Again, the meaning of these
remarks was stop doing business with Estes (keep their
trucks off your property) or picketing will begin Again,
the distinction is subtle, but contemporaneous
announcement of the Union's object and the cure for the
secondary employer's "problem" or "trouble" helps to
rebut the presumption of legality arising from the Union's
compliance with the Moore Dry Dock criteria, for who
needs pickets no matter where they parade or what their
signs say 11
Respondent's conduct at Virginia Bonded, Motor
Freight and R C Motor Lines, it seems to me, can not
be excused as isolated within the meaning of the Catalano
Bros case There was no external evidence in that case of
Respondent's object, and the few improper appeals, if they
were improper, were to employees employed by secondary
employers not to cross a primary picket line. This cannot
be equated to appeals to three employers, under threat of
picketing, to stop doing business with a fourth employer 11
If the Union had not asked for a cessation of business
between the primary and secondary employers when it
notified the secondaries of its dispute with Estes and its
intention to picket, and if the case did not contain the
incidents which occurred when Hodson visited three
secondary employers on February 18, 1 would consider
Hodson's comments at the Union's March 2 meeting
relatively equivocal. But in the whole context, I find in his
statements to the members that anyone could be brought
up on charges for crossing an ambulatory picket line,
which charges would be heard by the Union's executive
board, and that members should use some "discretion" in
deciding whether to cross the line, some evidence that the
Union intended to involve the employees of neutral
employers in its dispute and that its written instructions to
members that the picket line was not aimed at them were
not to be taken too literally.2°
The result reached here may not be inevitable, but, in
brief, I feel that picketing in the Moore Dry Dock fashion
is not a right guaranteed by the statute or the constitution
and, if a union wants to invoke its protection, it might
restrict the ' kind of statements its officials make to
secondary employers, as described herein, and not make
tongue-in-cheek policy statements to members. Picketing
in the transportation industry at the premises of a neutral
employer, as permitted by Moore Dry Dock tests, is, it
seems to me, a lever which does not need any extra
pressure to be effective I find and conclude on the basis
of the entire record, including the Union's letters to
secondary employers announcing commencement of
picketing, Hodson's statements and actions at the
secondary sites and his statements to the members at the
March 2 meeting, that Respondent's picketing, except at
Estes terminals, between February 18 and April 4, 1969,
violated Section 8'1b)(4)(i) and (ii)(B) of the Act Hodson's
threats to picket Virginia Bonded, R C. Motor Lines and
Motor Freight Express, were of course, as already
indicated, violations of Section 8(b)(4)(ii)(B).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Estes Express Lines, Inc , set forth in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend
to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section
8(b)(4)(i) and (n)(B) of the Act, it will be recommended
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the
meaning of the Act
2. Estes Express Lines, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
Virginia Bonded Warehouse, Motor Freight Express and
R. C. Motor Lines are persons engaged in commerce or
an industry affecting commerce within the meaning of
Section 2, subsections (6) and (7) of the Act
3 By picketing and by threatening to picket at the
premises of Virginia Bonded Warehouse, Motor Freight
Express and R C Motor Lines, for an object of forcing
or requiring said companies to cease doing business with
Estes Express Lines, Inc , Respondent engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i)
and (ii)(B) of the Act.
[Recommended Order omitted from publication ]
"Respondent or a sister local represents the employees of all the
companies to which the letters were sent, including the three specific
employers involved herein , and Virginia Bonded, which took some business
away from Estes during the strike, does business with practically all the
companies the Union picketed during the strike
"In Catalano Bros , the Board also noted that one of the "isolated"
incidents could not affect the remedy in any case
"Not a separate violation of Section 8(b)(4)(i)(B), however , as alleged