Truck Drivers Local 649, Teamsters

National Labor Relations Board - Board Decisions

Feb 9, 1967

162 N.L.R.B. 1561 (N.L.R.B. 1967)

TRUCK DRIVERS LOCAL 649, TEAMSTERS 1561
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Suite
230, Commerce Building, 744 North Fourth Street, Milwaukee , Wisconsin 53203,
Telephone 272-8600.
Truck Drivers Local 649, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America and Cold
Spring Construction Company, Inc. Case 3-CP-99. Febru-
ary 9, 1967
DECISION AND ORDER
On November 10, 1966, Trial Examiner Herman Tocker issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices as alleged in the com-
plaint, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent and General Counsel filed
exceptions to the Trial Examiner's Decision and supporting briefs.
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 [Chairman McCulloch and Members Fanning and Brown].
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 case, and hereby adopts the findings,' conclusions,2 and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
i The Trial Examiner made certain findings , which he based , in part , upon credibility
determinations The Respondent excepts to these findings , also alleging that the Trial
Examiner was biased and prejudiced . After a careful review of the record , we conclude
that the Trial Examiner ' s credibility findings are not contrary to a clear preponderance
of all the relevant evidence . Accordingly , we find no basis for disturbing these findings
Standard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F 2d 362 (CA. 3) We also
find no merit in the charge of bias and prejudice on the part of the Trial Examiner.
The Trial Examiner incorrectly describes Richard Forrestel as "Respondent 's Vice-
President ," when Forrestel , in fact , held that position with the Charging Party. The
Trial Examiner ' s inadvertent finding is hereby corrected. _
2 As we agree with the Trial Examiner ' s findings that Respondent 's picketing was for
an object of recognition and had a substantial disruptive effective , we hold that Respond-
ent cannot claim the protection of the informational picketing proviso and that its picket-
ing violated Section 8(b) (7) (C ) of the Act Accordingly , although we agree with the
General Counsel that the Trial Examiner misstated the General Counsel 's position con-
cerning the inapplicability of the second proviso to Section 8(b) (7) (C), we need not
pass upon whether the picketing failed to satisfy that proviso in other respects as well.
See, eg, Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack
Picoult), 144 NLRB 5.
162 NLRB No. 152.
1562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Herman Tocker in Jamestown,
New York, on August 3, 1966, upon a complaint issued by the General Counsel
July 7, 1966, following a charge filed June 1, by Cold Spring Construction Com-
pany, Inc., and the answer of the Respondent, Truck Drivers Local 649, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, the Union, filed July 25.
I. PLEADINGS
In the complaint it is alleged in substance that the Union picketed Cold Spring
for the purpose of forcing or requiring it to recognize and bargain with the Union
as a collective-bargaining representative of Cold Spring's employees and to force
or require those employees to accept or select it as their collective-bargaining
representative despite the facts that it was not and is not so certified and that
such picketing was being conducted even though no petition had been filed under
Section 9(c) of the Act within a reasonable period of time following its com-
mencement. It was alleged further that these were unfair labor practices within
the meaning of Sections 8(b)(7) and 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended.
In its answer the Union admitted all allegations whereby the National Labor
Relations Board became vested with jurisdiction over this proceeding. The Union
also admitted that it was not and is not certified as the collective-bargaining repre-
sentative of Cold Spring's employees and that it engaged in the picketing without
having filed a petition under Section 9(c) of the Act within a reasonable period
of time following its commencement. It denied that an object of the picketing
was to force or require Cold Spring to recognize and bargain with it as the
collective-bargaining representative of Cold Spring's employees and to force or
require these employees to accept or to select it as such representative. It denied
as well all conclusive allegations to the effect that it had violated the Act in any
manner.
II. THE ISSUES
The sole issues are whether the Union's object in picketing was recognitional or
organizational and, if so, whether the admitted picketing induced "any individual
employed by any other person in the course of his employment, not to pick up,
deliver or transport any goods or not to perform any services." [Section 8(b)(7)
(C) of the Act]
III. PRELIMINARY
Respondent, in its brief makes certain contentions on which I shall rule
preliminarily.
It states first, "(T)hat neither in the District Court nor here was there pleading
or proof, argument or contention by General Counsel that the picket signs or
slingers or the combination thereof violate in any way the provisions of the Act."
The picket signs and "slingers" are in evidence in this case. They are an insepara-
ble part of the picketing. If they, by their content, when considered alone or
together with other facts in the record, result in a violation of law, they and their
contents may not be disregarded.
Next Respondent suggests that the hearing ought to be reopened so that it may
have a "reasonable opportunity" to litigate issues resulting from the fact that
during the course of the hearing I inquired whether there was in effect in the
State of New York a law similar to the Davis-Bacon Act, characterized by me as
a "Baby Davis-Bacon Act." Respondent argues that under Section 7 of the
Administrative Procedure Act [now 5 USC 556(e)] no decision may "rest on
official notice of this material fact unless (it) is afforded a reasonable opportunity
to show the contrary." Respondent misconceives the meaning of 5 USC 556(e)
and overlooks the fact that when I asked the question during the hearing, it
expressly admitted that there was such legislation in the State of New York, made
no objection to the question or my subsequent remark about area standards, and,
in fact, litigated the factual matters which might have arisen in the event of a
consideration of such legislation.
It fails also to distinguish between "official notice" and "judicial notice."
Moreover, the law governing "official notice" provides for litigants an opportu-
nity to show that a "material fact not appearing in the evidence in the record"
TRUCK DRIVERS LOCAL 649, TEAMSTERS 1563
upon which an agency decision rests actually was not as assumed by the agency.
This has not arisen and does not arise in this proceeding.
Respondent complains that it was not permitted to answer a question concerning
"the purpose of the picketing" and that the answer attempted was stricken as
irrelevant. It claims that the answer "went to the area standards test." Here again
the Respondent errs. Its business representative was asked by the General Counsel
what, in fact, was the purpose of the picketing He answered this question fully:
"To notify the public that the rates and the conditions specifically the conditions
on the job, were subnormal to Union-specifically Truck Drivers Local 649 con-
ditions on other jobs in our contract with other Employers." The witness then
sought to embark on a dissertation concerning the union contract negotiations and
his problems in connection with such negotiations with employers who are mem-
bers of the Associated General Contractors. This additional material was ruled
irrelevant and stricken. The witness had answered fully the question initially put
to him. His dissertation was an attempt to inject extraneous matters not called
for by the particular question then pending.
Respondent complains further that its effort to examine a witness, Earl Lincoln,
called by the General Counsel, was prejudiced by my ruling sustaining an objec-
tion to the question, "Then how did you get here Mr. Lincoln? How did it come
about that you are here to testify?" It overlooks the fact that, while sustaining
the objection, I stated, "But I will allow Counsel to inquire as to the events, inso-
far as the Charging Party is concerned, or insofar as the General Counsel is con-
cerned, which transpired following the happening of the events of June 14, 1966."
(The witness had testified that on June 14, 1966, his offer to pay his dues to the
Respondent had been rejected.) Respondent ignores what transpired following this
ruling. Not only was it given every opportunity to explore this matter but it was
assisted when I proceeded to interrogate the witness closely as to the events which
followed the rejected tender of dues. Moreover, after the subject was covered
additionally by the General Counsel following my general inquiry whether there
were any further questions, Respondent's attorney said, "No questions. I'm con-
tent." The only question put by the Respondent, objection to which was sustained,
was its question calling for a conclusion as to the manner in which Lincoln came
to be a witness as opposed to the facts which would have brought out the conclu-
sion so sought.
In the resolution of all issues with respect to which credibility or oral testi-
mony became a factor I have weighed all the probabilities, considered the
demeanor and conduct of the witnesses, their candor or lack of it, their objectivity,
bias or prejudice, their understanding of the matters concerning which they testi-
fied, the degree whereby their testimony has been contradicted or sufficiently
impeached, whether parts of testimony should be accepted when other parts are
rejected, consistency, plausibility, and probability, and the effect which leading
questions might have had on the answers elicited thereby.
I have given careful consideration to the briefs filed on behalf of the General
Counsel and on behalf of the Respondent.
Now, on the basis of the entire record, I hereby make the following:
IV. FINDINGS OF FACT
A. The business of the Employer and jurisdiction
Cold Spring is, and at all times material herein has been, a corporation duly
organized under, and existing by virtue of, the laws of the State of New York.
It maintains its principal office at 3 Jackson Street, Akron, New York, where, as
well as at other places in the State of New York, it is engaged as a general con-
tractor in the construction industry.
During the past 12 months, a representative period, it purchased building sup-
plies and other goods and materials in excess of $600,000, of which in excess of
$50,000 of such goods and materials were received directly from places in the
United States other than New York.
It is engaged in the construction of a New York State highway, the Southern
Tier Expressway, near Kennedy, New York, pursuant to a $2 million contract
with the New York State Department of Public Works. The Southern Tier Express-
way is the situs involved in this proceeding.
Cold Spring is, and at all times material herein has been, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
1564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The labor organization involved and the position of Frank Harvey
Truck Drivers Local 649, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , is, and at all times material herein has
been , a labor organization within the meaning of Section 2 ( 5) of the Act, but it
'was not and is not the certified collective -bargaining representative of Cold Spring's
employees . During all such times Frank Harvey was its business agent and he is
an agent within the meaning of Section 2(13) of the Act.
C. The picketing
i
The picketing was conducted at a place on a public road , Route 62, at a section
of the Southern Tier Expressway where Cold Spring was constructing an entirely
new right-of-way 4 miles in length extending from Conewago Creek to School-
house Road. Here a detour road had been laid out requiring traffic on Route 62
to divert first to the east, then parallel to Route 62 , and then to the west returning
to Route 62 . This resulted in the formation with Route 62 of a sort of oval or
rough rectangle in about the center of which Cold Spring maintained a field office.
The picketing commenced on about May 2, 1966, and has continued ever since
without the filing of a valid petition under Section 9(c) of the Act . One picket
was stationed at the northerly limit of the oval and another at the southerly limit.
The north picket was there most of the time , the south picket less frequently.
Picket Norman Wright had a Volkswagen on the back of which, some time after
the commencement of the picketing , there rested a large sign saying, "THIS IS A
PICKET LINE ON COLD SPRING CONSTRUCTION ." He sometimes wore
suspended from his neck across his chest and stomach, and at other times dis-
played by hanging from the Volkswagen door, another sign on which was lettered:
Cold Spring Construction Company does not provide working conditions,
benefits and other conditions of employment established by the ' Teamsters
Union in this area.
(See our Slinger)
The Volkswagen usually stood still within the oval.
There is no evidence that there was any pedestrian traffic on or at either end of
the detour . The only traffic was that of vehicles traveling Route 62 for reasons not
connected with Cold Spring 's business or of vehicles required to travel that route
because they had business with Cold Spring which, as far as the record in this
proceeding discloses , consisted only of travel for the purpose of picking up, deliver-
ing, or transporting goods or rendering services in which Cold Spring had an
interest.
The "stinger" to which reference is made on the poster or placard worn by the
picket was as follows:
TO WHOM IT MAY CONCERN:
We are not seeking to organize the employees of Cold Springs Construction
Company. We do not seek recognition , we merely wish to' inform the public
that Cold Springs Construction Company does not provide union conditions
and benefits for its employees . This condition tends to break down the union
conditions for its members in this area . We are passing this information on
to the general public as a service to working people who might be affected by
this deteriation of union working conditions by this Company.
Very truly yours,
Executive Board of
Truck Drivers Local 649
There is no evidence that any passing motorist or truckdriver not having business
with Cold Spring was given or obtained a copy.
Cold Spring 's business , that of a general construction contractor on. public proj-
ects, is not at all comparable to that of retail stores or other establishments relying
on consumer patronage which might be diverted , rightfully , by legal area standards
picketing . On the contrary , apart from Cold Spring 's testimony that it resulted in
deliveries being withheld from it, the picketing is aimed directly at trucks having
delivery or service obligations to Cold , Spring. This is demonstrated by testimony
of the picket himself , Norman Earl Wright.
Wright was called by the Respondent as a witness in defense . He testified that
his picketing activities were mainly ' at the north portion of the site. One morning
a Crossett oil truck , came to the jobsite while he "was sitting at the outside limits."
TRUCK DRIVERS LOCAL 649, TEAMSTERS 1565
He was wearing " the small sign ." Wright "didn't know for sure whether he was
going to deliver anything or not." After the driver had stopped his truck and had
gone to Cold Spring's field office, Wright "drove down and parked behind his
truck." When the driver came back, Wright asked him if he had seen the picket
sign to which the driver answered, "No." Following this Wright informed him that
the sign was on the Volkswagen. The' Crossett driver apologized, saying, "I didn't
see it." Wright told him "it was a Teamsters' picket line up." The, driver then
inquired where he could go to call "to find out what to do with the load." Wright
took him to a telephone from which the driver made a telephone call'during which
"they told him to drive it to another.,po'int." (The telephone was located at Ken-
nedy, some distance' away.)
Next Wright testified concerning a Texaco truck. `,When he pulled into the yard
I put my sigh on. I pulled in'behind him." When the driver stopped to p ack up and
make a turn, Wright walked up and asked if he was a Teamsters driver., The
answer was in the negative and Wright then asked whether he belonged to any
union . The answer again was negative. Wright then said, "Okay," walked back to
his car, and drove to the outside limits of the job.
Next Wright testified about a cement truck. When that truck pulled up to the
sign , its driver asked him whose was the picket line to which-Wright replied that
it was "the Teamsters." The driver told him that he had a tank for Cold Spring
and asked what Wright wanted him to do with it. Wright claims he told him
merely that the decision was up to him. Following the driver's inquiry as to where
he could call his office or the business agent, Wright took him to the telephone
at Kennedy and arranged a telephone call to Respondent's business agent, Harvey.
Following the telephone conversation with Harvey the driver told Wright, "Mr.
Harvey told him (the driver) to put the tank on the property but not where they
could use it." The driver then "packed it off to the side "
Another driver for Draper was intercepted by Wright who asked him, "why he
wouldn't recognize the Teamsters Union picket line." Other drivers and a posthole
digger also were accosted by Wright.
Wright's testimony discloses that he made a regular practice of accosting drivers
attempting to do business with or make deliveries to Cold Spring. This was more
than the mere "signal to organize labor" to which the Board alluded as that "which
Congress sought to curtail" in Local 3, International Brotherhood of Electrical
Workers (Jack Picoult), 144 NLRB 5 at 8.
Cold Spring's testimony that deliveries were not made because of the picketing
and that it had to make independent arrangements to procure some deliveries
through its own facilities is confirmed by that of the picket. It is clear to me that
what happened was not a mere reaction to or effect of the picketing but that the
picketing was calculated and planned to induce individuals employed by persons
other than Cold Spring not to deliver or transport goods to and not to perform
services for Cold Spring in the course of their employment.
Moreover, the picket message was directed not at area standards but specifically
at standards "established by the Teamsters Union in this area" ( as written on the
sign worn by the picket) and at "union conditions and benefits for its ( Respond-
ent's ) employees" and "union conditions for its (the union's) members in this
area" ( as written in the slinger ). True, the "slinger" stated that the Union was
"not seeking to organize" Cold Spring employees and was,not seeking " recognition"
but wished merely to inform the public. Nevertheless, it was not concerned with
area standard's but sought only to proclaim that the failure of Cold Spring Con-
struction Company to `.`provide union conditions and benefits for ,its employees"
"tends to break down the Union' conditions for its members in this area." Thus the
standards with which Respondent, was concerned were those of its members alone
and not those of workers generally in the area. This conclusion does not rest alone
on my interpretation of the signs but is the testimony of the Respondent. When
asked whether it was not part of his "desire to give the employees-Union mem-
bers who are employees of Cold Spring and the other employees the job protection
and the benefits that the other craftsmen get, that they were getting on other jobs
for other employers?", Harvey answered, "No." When asked, "Would there have
been picketing it Cold Spring had a contract with 649?", he answered, "No."
D. Business Agent Harvey's alleged admission
Respondent's Vice President Richard Forrestel testified to a conversation between
him and Harvey at the site of the picketing. This conversation was held between
the beginning and end of a meeting between a Board representative and Forrestel
1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Cold Spring's field office, which meeting was concerned with the complaint
being made by Forrestel. It seems clear to me that Forrestel's affidavit in support
of the charge had not been completed prior to his conversation with Harvey and
that this conversation was added to it at a point therein following Forrestel's
recital of all events prior thereto. I am certain as well that, when Forrestel left
the field office in the middle of his meeting with the Board agent to engage Harvey
in a conversation, his purpose and hope were to get Harvey to admit that the objec-
tive of the picketing was to compel Cold Spring to recognize or bargain with the
Teamsters as the representative of its employees. That he had this purpose, how-
ever, is immaterial if in fact the admission sought was elicited.
Forrestel said that following some preliminaries, fencing and a discussion of
something which had happened previously at another job, he asked Harvey, "What
can we do to get rid of the pickets?", and that Harvey responded, "Sign a contract
is the only way."
Harvey's testimony is diametrically opposed to this. Harvey insisted that his
responses to Forrestel's inquiry as to why he was picketing were limited solely to
directing his attention to the picket sign and the "clinger." He insists that when
Forrestel asked him "Do you want me to sign a contract with you?", he answered
"No, I don't . . . I can't talk to you in this regard. You must read the slinger" or
that he took the "slinger" and held it up for Harvey to read. While admitting that
there had been reference to prior organizing efforts, Harvey denied Forrestel's
version of this portion of the conversation and claimed that he had not been
involved in the earlier activity and knew nothing about any deals made in con-
nection therewith. Elsewhere, however, he admitted that he had tried to organize
Cold Spring's employees in 1963, but had failed. This attempt was at the Bradford
Junction job.
For the purpose of persuading me that Forrestel's version of the conversation
should be disregarded, Respondent points to inconsistencies in his testimony during
this hearing and during a hearing in the district court upon the Regional Director's
application for a temporary injunction against the picketing. The General Counsel,
in similar vein, points to inconsistencies in Harvey's testimony in the two
proceedings.
Respondent's attorney argues also that to have made the admission which For-
restel said he made Harvey would have had to be a fool. The possibility of gro-
tesquerie is not a basis for ruling that Harvey did not make the admission. He
might just as well have banked on this argument or taken the calculated gamble
that his denial would be accepted against Forrestel's assertion.
Inconsistencies there were, both in Harvey's testimony and in Forrestel's. The
-question here, however, is not whether there were inconsistencies in some respects
but whether Forrestel's testimony that Harvey told him that the only way to stop
the picketing was for Cold Spring to sign a contract with the Union or whether
Harvey's denial of this should be credited. Neither was inconsistent on this point
and the testimony in both proceedings was substantially the same.
On the other hand, Harvey was inconsistent and appeared to be less than candid
when he testified in this proceeding as to what the conversation had been with
respect to prior efforts to organize Cold Spring's employees. This is an important
factor and has some bearing on the ultimate disposition of this proceeding. While
Harvey admitted in this proceeding that the Teamsters had made an unsuccessful
effort in 1963 or 1964 to organize Cold Spring's employees he expressly denied
that a Bradford Junction job had been discussed. In the district court proceeding,
however, he testified, "We did discuss that. I said that the Teamsters had tried to
organize his people three years ago-two or three years ago-in 1963 or 1964, on
the Bradford Junction job, which is.some forty miles east of the present construc-
tion site, and they indicated then they didn't want to belong to our local union."
Moreover, in this proceeding, when his attention was directed to testimony given
by Forrestel about their discussion of an agreement alleged to have been made
between two union representatives (Dalton and Capone) and Cold Spring, follow-
ing an effort to organize Cold Spring's employees, Harvey admitted that there had
been a meeting or meetings between those representatives and Cold Spring and
that they had told him of them but he asserted that they did not tell him what
had been discussed and he did not ask. In the district court, however, he identified
'Capone as having been then and now employed by the Eastern Conference of
Teamsters and he admitted that he knew that the subject of the meeting or meet-
ings had been "whether the company would become a union contractor."
On balance, after observing both Harvey and Forrestel, I have concluded that
Harvey was not as candid and as complete in his testimony as he might have been
TRUCK DRIVERS LOCAL 649, TEAMSTERS 1567
and that Forrestel's version of. the conversation, particularly Harvey's admission•
of the purpose of the picketing, should be credited. This is consistent with the
contents of the picketing placards and "slinger," the testimony given by Wright,
the picket, and with the recital made by Forrestel in the affidavit given by him to
the Board agent immediately after and almost contemporaneously with the hap-
pening of the events recounted.
E. The effects of the picketing
The complaint alleges a violation of Section 8(b)(7), subparagraph (C) of
the Act.
In Houston Building and Construction Trades Council (Claude Everett Con-
struction Company), 136 NLRB 321, the Board made clear that the second proviso
of this subparagraph, that having to do with the effect-of the picketing, may not
be read for the purpose of supporting independently a violation but must be read
in connection with introductory or main language of subparagraph 7. It 'said,
"(T)his section read as a whole, declares picketing by an uncertified union unlaw-
ful if it has a recognitional or organizational objective and if a petition has not
been filed within a reasonable time, . the interruption-of-deliveries clause does
not enter into the picture unless the picketing can first be shown to have such a
prohibited objective."
While the Respondent in its picketing literature stated that it was "not seeking
to organize the employees of Cold Spring Construction Company" and that it did
"not seek recognition," this self-serving declaration is not sufficient to bring this
case within the rule of International Hod Carriers, Building and Common Labor-
ers' Union of America (Calumet Contractors Association), 133 NLRB 512. Local
3, International Brotherhood of Electrical Workers (Jack Picoult), 144 NLRB 5
is more apposite. Upon the facts, giving due consideration to Harvey's admission,
the aggressive conduct of the picket in intercepting and accosting trades and crafts
rendering services and making deliveries to Cold Spring and the additional con-
tents of all the literature amplifying and enlarging upon the self-serving declara-
tions therein contained, it is my finding that Respondent came clearly within the
thrust of Section 8(b) (7) (C) read as a whole.
The Respondent, while denying that its objective was recognitional or organiza-
tional picketing, is careful, however, to preserve and obtain the protection of the
second proviso of subparagraph (C) and seeks a view of the picketing as limited
solely to "the purpose of directly advising the public (including consumers) that
(Cold Spring) does not employ members of, or have a contract with, a labor
organization . ." Pursuing this course it goes on to argue that it does not lose
the protection of the proviso by the qualification within it, "unless an effect of such
picketing is to induce any individual employed by any other person in the course
of his employment, not to pick up, deliver or transport any • goods or not to per-
form any services." It does this by asserting that the. four interruptions to Respond-
ent's business brought out in the evidence, which interruptions are not contravened,
are not sufficient for a finding that it lost the protection, of the proviso.
The General Counsel argues that if the object of the picketing is found to have
been that prohibited by the introductory or main portion of subparagraph (7),
the second proviso " is inapplicable ( and) the `interruption-of-deliveries clause'
contained in that proviso does not require consideration." But this is not what the
Board held in Barker Bros. Corp. and Golds, Inc. (Retail Clerks Union Local 324;1
etc.), 138 NLRB 478, 486, where it said that "a violation of Section 8(b) (7) (C)
is not established if the picketing is for the purpose of truthfully advising the'
public, including consumers, that the employer does not employ, members of, or
have a contract with, -a labor organization, unless an effect of such picketing is to
induce a stoppage of deliveries and/or services" even though picketing is conducted
for a proscribed object," following Crown Cafeteria, 135 NLRB 1183, affd. 327
F.2d 351 (C.A. 9). [Last emphasis mine.]
It is necessary, therefore, to consider Respondent's argument based on de min-
imis. It relies on Barker Bros. Corp. and Gold's, Inc. (Retail Clerks Union Local
324, etc.) v. N.L.R.B., 328 F.2d 431 (C.A. 9), enfg. 138 NLRB 478. This reli-
ance, however is ill-founded in that the Board, when deciding Barker Brothers,
held that a "quantitative test" was "an inadequate yardstick for determining
whether to remove infoi mational picketing from the proviso's protective ambit."
It said, "We believe that where delivery and/or work stoppages occur, it would
be more reasonable to frame the test in terms of the actual impact on the picketed
employer's business. That is, the presence or absence of a violation will depend
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
upon whether the picketing has interrupted, interfered with, or curtailed the
employer's business ." This reasoning, it must be borne in mind, was directed par-
ticularly to cases concerning "employers operating retail establishments." It intro-
duced the reasoning with a reference to the obvious inadequacy of a curmudgeon
type of interruption caused by "a strong-willed delivery man with an antipathy to
crossing any picket line (regardless of the sector of the public to whom it was
designed to appeal) (who) refused to cross, notwithstanding his own union's
instructions to do so and the affirmative' request of the picket himself." In that
case, `.`The picketing was generally confined to consumer entrances to the stores
and was 'conducted only during those hours when the stores were open to the
public." Telegrams had been sent by the unions advising another union that the
purpose was not to stop deliveries. Advertisements had been placed in local news-
papers informing the public that the picketing was only for the purpose of advising
it that Barker Brothers were nonunion and "urging labor organizations not to stop
deliveries or services at the stores." Additionally, the pickets "were "instructed not
to picket at delivery entrances and not to interfere with the public or with the
drivers making deliveries." The facts in this case, insofar as the conduct of the
respondent is concerned, were so far different as not to merit further discussion.
Cold Spring was engaged in performing its obligations under a construction
contract with the State of New York. The picketing did interfere with that per-
formance. It caused a Crossett fuel truck not to deliver fuel to Cold Spring. The
picket tried to dissuade a Texaco truck not to deliver fuel oil. The "Union caused
the driver of a truck delivering bulk storage cement tank to drop it on Cold
Spring's premises but not to "spot" it at the proper place. Cold Spring was forced
to make arrangements independently to pick up acetylene which it required for its
business from Jamestown Welders instead of Jamestown Welders delivering it at
the jobsite as had been its prior practice. The question of fact which the Board in
Barker Biothers held determinative was "whether the picketing has disrupted, inter-
fered with, or curtailed the employer's business." Stopping or tiying to stop
deliveries and compulsion to arrange deliveries do result in disruption, interference,
and cuitailment of an employei's business. These did happen here.
F. Summary
Accordingly, on the basis of the record as a whole, I find that Respondent,
Truck Drivers Local 649, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen' and Helpers of America, did engage in picketing within the pro-
scription of and in violation of Section 8(b) (7) (C) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth above, occurring in connection with
the operations of Cold Spring, also set forth above, have a close intimate and
substantial relation to trade, tiaffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing 'commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. Cold Spring Construction Company, Inc., is an employer engaged in com-
merce within the meaning of Section 2(2), (6); and (7) of the Act.
2. Truck Drivers Local 649, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America is a labor organization within the meaning
of Section 2(5) of the Act.
3. Truck Drivers Local 649, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, by picketing Cold Spring with an object
of forcing or requiring it to recognize and bargain collectively with the Union as
the representative of its employees and of forcing or requiring the employees of
Cold Spring to accept or select the Union as their collective-bargaining representa-
tive, although not certified as the representative of such employees, having con-
ducted such picketing without filing a petition under Section 9(c) of the Act within
a reasonable period of time, and thereby causing disruption, interference, and cur-
tailment of Cold Spring's deliveries and services, has committed unfair labor prac-,
tices within the meaning of Section 8(b)(7)(C) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
TRUCK DRIVERS LOCAL 649, TEAMSTERS 1569
THE REMEDY
Having found that Respondent has engaged in conduct proscribed by Section
8(b)(7) of the Act, I shall recommend that it cease and desist therefrom and
take specific affirmative action , as set forth below, designed to effectuate the
policies of the Act.
Upon the entire record herein and-on the -basis of the foregoing findings of
fact, I hereby recommend the following:
ORDER
Respondent , Truck Drivers Local 649, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, its officers , representatives,
and agents , shall:
1. Cease and desist from picketing , or causing to be picketed , Cold Spring
Construction Company, Inc., for the, purpose of causing it to recognize or bargain
with it as representative of its employees or for the purpose of forcing or requiring
said employees to accept or select Respondent as their collective -bargaining repre-
sentative in circumstances violative of Section 8(b)(7)(C ) of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Respondent shall post in conspicuous places at its business offices, meeting
halls, and all places where notices to its members customarily are posted , copies
of the attached notice marked "Appendix A " I Copies of said notice, on forms
provided by the Regional Director for Region 3, after being duly signed by an
authorized representative of the Respondent, shall be posted by it immediately
upon receipt thereof, and shall be maintained by it for 60 consecutive days Rea-
sonable steps shall be taken by Respondent to insure that such notices are not
altered, defaced , or covered by any other material.
(b) Promptly upon receipt from the said Regional Director of an additional
copy of said notice, Respondent shall cause such additional copy to be signed as
aforesaid and returned to the Regional Director for posting by Cold Spring, if
that Company is willing to do so.
(c) Respondent shall notify said Regional Director , in writing , within 20 days
from the date of this Decision ,2 what steps it has taken to comply herewith.
i In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
2 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read "The Respondent shall notify said Regional Director , in writing,
within 10 days from the date of this Order, what steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL PERSONS
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in- order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby, notify . all persons that:
WE WILL NOT picket or cause to be picketed Cold Spring Construction
Company, Inc., with an object of forcing or requiring Cold Spring Construc-
tion Company , Inc., to recognize or bargain with us as representative of its
employees , or with an object of forcing or requiring its employees to accept
or select us as their collective -bargaining representative , in circumstances
violative of Section 8(b) (7)(C) of the Act.
TRUCK DRIVERS LOCAL 649 , INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA,
Labor Organization
Dated----------- -------- By-------------------------------------------
(Representative ) ( Title)
264-047-67-vol. 16 2-10 0
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If you have any question concerning this notice or compliance with its pro-
visions, you may communicate directly with the Board's Regional Office, Fourth
Floor, The 120 Building , 120 Delaware Avenue, Buffalo, New York 14202, Tele-
phone 842-3100.
Garland Corporation and International Ladies' Garment Work-
ers' Union , AFL-CIO. Case 1-CA-5400. February 9, 1967
DECISION AND ORDER
On November 17, 1966, Trial Examiner Samuel M. Singer issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief. The General Counsel filed a
statement endorsing 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 [Chairman McCulloch and Members Fanning and Brown].
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 and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M . Singer at Boston , Massa-
chusetts , on July 21 , 1966,1 pursuant to a charge filed on March 31 and a com-
plaint issued on May 27. The issue litigated was whether or not Respondent,
through statements made by three of its supervisors in March interfered with,
restrained , or coerced its employees in violation of Section 8(a)(1) of the National
Labor Relations Act.
All parties appeared and were afforded full opportunity to be heard and to
examine and cross-examine witnesses . All waived oral argument at the conclusion
Df the case . A brief was received from Respondent.
'Unless otherwise noted , all dates herein refer to the year 1966. By agreement of the
parties at the hearing the name of the Respondent was corrected to read as it now appears
in the caption.
162 NLRB No. 145.