United Steelworkers of America, Local 6991

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 791 (N.L.R.B. 1969)

UNITED STEELWORKERS OF AMERICA , LOCAL 6991
United Steelworkers of America , AFL-CIO, and
Local 6991 , United Steelworkers of America,
AFL-CIO and Auburndale Freezer Corporation
Local 6991, United Steelworkers of America,
AFL-CIO and Minute Maid Company. Cases
12-CC-513-1 and 12-CC-513-2
June 30, 1969
DECISION AND ORDER
On February 20, 1968, Trial Examiner William
W. Kapell issued his Decision in the above-entitled
proceeding, finding that Respondents, United
Steelworkers of America and its Local 6991, had
engaged in certain unfair labor practices as alleged
in the complaint, and recommending that they cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, Respondents filed exceptions
to the Trial Examiner's Decision, and a supporting
brief. The General Counsel filed exceptions to the
Trial Examiner's Decision.
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 these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner only to the extent consistent
herewith.
Since on or about October 15, 1967, Respondents
have been engaged in a labor dispute with Cypress
Gardens Citrus Products, Inc.,' at its Eloise,
Florida, place of business. Since on or about
October 17, 1967, and continuing until on or about
October 21, 1967, Respondents picketed at the truck
entrance and the railroad entrance to a cold storage
warehouse in which Cypress stored its product. This
warehouse was owned by Auburndale Freezer
Corporation.: Respondents' pickets carried signs
which read as follows:
Employees of Cypress Gardens Citrus Products
are ON STRIKE. We have no dispute with any
other employer. United Steelworkers of America,
Local 6991, AFL-CIO.
The instant case arises out of the picketing at the
Auburndale warehouse.
Cypress is engaged in the business of processing
citrus fruits and products. Auburndale, at all times
material herein was obligated to Cypress to furnish
storage space for up to 300,000 cases of citrus
concentrate (approximately 10 percent of the storage
space) at a specified rental. The warehouse is staffed
'Hereinafter referred to as Cypress. The dispute between Cypress and its
employees arose out of contract negotiations.
'Hereinafter referred to as Auburndale.
791
by three Auburndale employees, a senior managing
official, a building maintenance man, and a
secretary, and approximately 30 employees of
Minute Maid Company' who, pursuant to a contract
between Auburndale and Minute Maid, perform all
warehousing services. No Cypress employees
perform work at the warehouse, and there is no
common ownership or control of operations
(personnel or labor relations) between Cypress and
Auburndale or between Cypress and Minute Maid.
When the Cypress truck, loaded with concentrate
and driven by a Cypress employee, comes onto the
warehouse facility from the Cypress plant, the
Minute Maid employee drives onto the truck,
removes the product and places it in storage. A
receipt is given the Cypress driver who then leaves
the warehouse facility. Upon the sale of the goods
by Cypress, which sales are nonretail, instructions
are given Auburndale to ship the product, which is
then loaded by Minute Maid employees onto the
designated common carrier's facility.
The Auburndale operation is seasonal, the busiest
period being from March to July with the peak in
June. During this period Cypress trucks arrive at the
warehouse continuously. During the picketing
(October 17 to 21) no Cypress trucks came to
Auburndale. Furthermore, no Cypress product was
shipped from Auburndale during this period.
The Trial Examiner found, on the above facts,
that the picketing took place at the plant of the
secondary employer, and that Auburndale,
conducting an independent business wholly distinct
and separate from that of Cypress, was entirely
unconcerned in the dispute between Cypress and
Respondents. Relying primarily on Warehouse
Union Local 6, International Longshoremen's and
Warehousemen's Union (Hershey Chocolate
Corporation), 153 NLRB 1051, and citing for
additional support Local 868, International
Brotherhood of Teamsters (Mercer Storage
Conipany, Inc.), 156 NLRB 67, Western States
Regional Council No. 3 International Woodworkers
of America, AFL-CIO (Priest Logging, Inc.), 137
NLRB 352, and Local 810, Steel, Metals, Alloys
and Hardware Fabricators and Warehousemen (Fein
Can Corporation), 131 NLRB 59, the Trial
Examiner concluded that the picketing violated
Section 8(b)(4)(i) and (ii)(B) of the Act. Then,
assuming arguendo that the warehouse presented a
common situs situation, the Trial Examiner
concluded that, because no Cypress trucks
approached or arrived at the warehouse and because
Cypress was not engaged in its normal business
during the time of the picketing, the picketing did
not meet all the conditions prescribed by Moore Dry
Dock.
Contrary to the Trial Examiner we find that the
cases relied on are not controlling. In Hershey,
'Hereinafter referred to as Minute Maid.
'Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547.
177 NLRB No. 108
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mercer, and Priest the diapositive issue was whether
or not the secondary employer was performing
struck work and was thus an "ally" of the primary;
the issue of common situs was not discussed. In
Fein the primary employer' s premises , which were
also used by a separate trucking company, were
found to constitute a common situs but the issue
was not discussed with respect to a separate
warehouse used by the secondary employer. The
Trial Examiner noted that no employees of the
primary worked at the warehouse and concluded
that the picketing there was unlawful.
In determining whether or not the Auburndale
warehouse is a common situs the question is whether
or not there is sufficient "presence of the primary"
at the secondary site, or, to put the matter another
way, whether the evidence is sufficient to establish
" .. that direct and immediate relationship between
the picketing and the object picketed necessary to a
finding of purely primary picketing."' In this sense
"presence of the primary" is a term of art and
refers to a multitude of factors' that are to be
evaluated in light of the union's presumably
permissible "primary" objective of bringing about a
complete cessation of the primary employer's
operation ' so long as its efforts are confined to a
location of that operation, and of the additional and
sometimes countervailing policy of the Act which
seeks to protect neutral employers from being pulled
into the dispute involving the primary employer.
In the present case, we note the following facts
which seem to us relevant to establish the "presence
of the primary" at the Auburndale location: (1)
Cypress first began storing its product at
Auburndale in 1956 under a general warehousing
agreement; (2) Cypress and Auburndale executed a
5-year contract in January 1967, whereby the latter
agreed to furnish to the former space for 300,000
cases of concentrate; (3) during the picketing
Cypress had 150,000 cases of concentrate stored at
the Auburndale warehouse ; (4) Cypress trucks
deliver concentrate to Auburndale in the regular
course of business , and during the season, March
through July, do so continuously; (5) Cypress drivers
remain at Auburndale until they are given a receipt
for the concentrate; and (6) the concentrate is
shipped from the Auburndale warehouse by
common carriers in accordance with instructions
given by Cypress.
'International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America, Drivers Local Union No. 807 (Sterling
Beverages, Inc.), 90 NLRB 401
The presence or absence of the primary employer' s employees at the
secondary site is merely one factor and is prima facie relevant to both the
question of whether or not the secondary site is a common situs and of
whether or not the picketing is in conformity with the Moore Dry Dock
standards . See Seafarers International Union (Salt Dome Production Co J
v N L R B. 265 F.2d 585 (C.A.D C.).
'See and compare Local 761. International Union of Electrical Workers
/General Electric!. v. N.L R B. 366 U S. 667, and United Steelworkers of
America, AFL-CIO /Carrier Corp J v N L.R B. 376 U.S. 492.
These facts indicate that the concentrate, while
stored at the Auburndale warehouse, is, for all
practical purposes, under the control of Cypress,
that the warehouse is the place where common
carriers receive Cypress goods for delivery to
Cypress' customers, that there is substantial contact
between Cypress, its employees, and the Auburndale
warehouse, and that the storage of the concentrate
at the warehouse, which practice has been
continuous since 1956, constitutes an integral part of
the Cypress production process," To the extent that
the Auburndale warehouse is a part of the Cypress
operation, we conclude that the warehouse
constitutes a common situs.
We conclude further that Respondents' picketing
of the Auburndale warehouse conformed in all
respects with the Moore Dry Dock requirements for
legitimate common situs picketing.' In view of our
finding that the Auburndale warehouse constituted a
common situs because of the continuous "presence"
of the Cypress operation at that location, it follows
that it was, at all material times, a situs of the
dispute. Further it appears from the facts set out
above and in the Trial Examiner's Decision that the
picketing was as close as possible to the situs and
was, by its terms, directed solely to the primary
employer, Cypress. While no Cypress trucks came
to the Auburndale warehouse during the picketing,
the Board pointed out in Local 3, International
Brotherhood of Electrical Workers, AFL-CIO (New
Power Wire and Electric Corp.), 144 NLRB 1089,
that ". . . the absence of the primary employer's
employees is merely one of the factors to be
evaluated in determining . . . whether the primary
employer is then engaged in his normal business at
the site," and considered ". . . it significant in this
case that the absence of company employees was
attributable to the fact that a majority of them were
on the picket lines . . . '"" We find it significant
here, as we did in New Power Wire and Electric
Corp., supra, that the whole Cypress plant was out
on strike. However, even if the picket line were
viewed, because of the absence of the striking
employees from the site, as essentially an appeal to
such common carrier employees as might approach
the warehouse to pick up Cypress' products, such
appeals would, under the circumstances, constitute
legitimate primary action."
Accordingly, having found that the Auburndale
warehouse constitutes a common situs and that
Respondent's picketing was in accord with the
requirements of Moore Dry Dock, we shall order
that the complaint be dismissed in its entirety.1z
'Cf. N L R B v. Servette . 377 U .S. 46, wherein the term "produce" was
given a broad meaning in the context of another portion of Sec 8 (b)(4).
'Sailors' Union of the Pacific (Moore Dry Dock Company), 92 NLRB
547.
"New Power Wire and Electric Corp, 144 NLRB 1089, 1093, 1094.
"Local 761. International Union of Electrical Workers v N L.R B.,
supra, United Steelworkers of America, AFL-CIO v. N L R B., supra
"We are not called upon here to , and do not , decide whether or not
Respondents lawfully could have appealed to the Auburndale and Minute
UNITED STEELWORKERS OF AMERICA, LOCAL 6991 793
ORDER We cannot agree that this is so. We believe it to
be apparent that, expressed in simple terms, the
Pursuant to Section 10(c) of the National Labor "presence" of the primary employer postulated by
Relations Act, as amended , the National Labor our colleagues can mean nothing else, in this case,
Relations Board hereby orders that the complaint than the simple presence of that primary employer's
herein be, and it hereby is , dismissed in its entirety . product on the separate premises of a neutral
employer independently engaged in the business of
CHAIRMAN MCCULLOCH AND MEMBER BROWN, providing cold storage and warehouse services to its
dissenting:
We would affirm the Trial Examiner's finding
that Respondents' picketing of the Auburndale
warehouse violated Section 8(b)(4)(i) and (ii)(B) of
Act. Although we agree with the reasoning of the
Trial Examiner, further comment is necessary with
respect to the majority's departure from established
principles in diminishing the protection from direct
pressures afforded neutrals under the secondary
boycott provisions of the Act.
The picketing of Auburndale was in furtherance
of Respondents' primary labor dispute with Cypress,
a processor of citrus fruits and products.
Auburndale is independently owned and operated
and is engaged in furnishing warehouse services on
its own separate premises to various citrus fruit
processors, one of whom is Cypress. Employees of
Cypress perform no functions at Auburndale's
premises, other than the delivery of Cypress'
products to those premises by truck. Neutral
employees perform the task of unloading the trucks
and perform all other warehousing tasks, including
those related to the ultimate removal of products
from storage and their shipment by rail or motor
carrier. The picketing of Auburndale occurred not
only at the truck entrances but at the railroad siding
as well. During the period of picketing no trucks of
Cypress were dispatched to make deliveries to the
Auburndale warehouse.
The Trial Examiner concluded primarily that the
Auburndale premises were not a situs of the Union's
dispute with Cypress and for that reason rejected the
asserted applicability, as precedents, of decisions
involving picketing at the premises of employers
directly involved in a dispute with the striking union.
Alternatively the Trial Examiner reasoned that,
assuming that a common situs might be involved,
one of the criteria established by Moore Dry Dock"
for lawful picketing at such a situs, i.e., that the
primary employer must be engaged in its normal
business at the situs , was not satisfied because
Cypress neither made deliveries to, nor was engaged
in its normal business at the site when the picketing
took place. Our colleagues would reverse both of
these conclusions, finding that the Auburndale
premises were a common situs and that the Moore
Dry Dock standards were satisfied, basing both of
these conclusions on the single supposition that there
existed a "presence of the primary" employer at the
Auburndale warehouse site such as to justify
Respondents' picketing, in pursuance of its primary
dispute with Cypress, at that site.
customers. Here the employees of the primary
employer, Cypress, perform no function at all in
connection with the warehousing services, and the
storage of Cypress' products provides but a minor
portion of the business of Auburndale, the
warehousing enterprise. The Board has not hitherto
held, as the majority does here, that the mere
presence of a primary employer's goods on the
premises of a neutral employer, pursuant to an
established business relationship, is sufficient in and
of itself to convert the picketing of such neutral
premises from unlawful secondary to lawful primary
picketing.'
That such is indeed our colleagues' holding here
must not be obscured by their reference to precedent
to demonstrate that the presence or absence of a
primary employer's employees from the premises
picketed is not in itself determinative of the validity
of the picketing. With that proposition we agree.
But we nevertheless cannot agree that it has any
applicability to this case. Our understanding of the
decision cited" and similar precedents]' is that they
have reference to situations in which employees of
the primary employer are normally engaged in tasks
at the picketed premises but are absent because of a
strike, because the primary employer has withdrawn
them to avoid the effect of picketing, or because of
a workbreak, or for some other similar reason. Here
no employees of Cypress, the primary employer with
whom Respondents had their dispute, had ever
performed tasks at the picketed premises." Such
employees were not simply "absent." They never
were there. In this situation, the only possible thrust
of Respondents' picketing appeal must have been
directed to the neutral Auburndale, to the neutral
"Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92
NLRB 547, cited by the majority at fn . 4, supra.
"See, a g ., Warehouse Union Local 6, et a! (Hershey Chocolate
Corporation), 153 NLRB 1051; Western States Regional Council No 3,
International Wood- Workers, (Priest Logging , Inc ), 137 NLRB 352, enfd.
319 F 2d 655 (C A 9); Local 810, Steel, Metals, Alloys and Hardware
Fabricators (Fein Can Corporation), 131 NLRB 59. Cf. National
Maritime Union of America, et aL (Farmers Union Grain Terminal
Association ), 152 NLRB 1447, 1457-58, enfd . 367 F.2d 171 (C.A 8);
Teamsters , Chauffeurs & Helpers Union, Local 279 (Wilson Teaming
Co), 140 NLRB 164.
We distinguish , of course, such cases as those involving "struck work"
or an "ally" relationship, where the employer asserted to be neutral would
not normally handle or work on the products of the primary employer
were it not for the existence of a strike at the primary employer's plant.
We understand that that type of situation is not involved here.
"New Power Wire and Electric Corp, 144 NLRB 1089.
"See, e .g., Seafarers International Union v. N.L R.B.. 265 F 2d 585,
590, International Brotherhood of Electrical Workers, et al (Plauche
Electric Inc), 135 NLRB 250
"As noted above, the drivers who brought the Cypress products to the
Maid employees not to handle the Cypress product.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees engaged in warehousing tasks, or to the
neutral employees of Auburndale's other customers.
This is the classic example of the secondary boycott
proscribed by the statute.
Auburndale warehouse did no more than drive their trucks to the dock,
wait for neutral employees to unload them , obtain a warehouse receipt,
and depart. We do not understand Respondents to contend that it was
engaged in ambulatory picketing of the trucks . But even if it were, the
Board would require that such picketing be strictly limited to the trucks,
and not extended in any manner to Auburndale or other neutrals.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This matter, a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was
heard at Tampa, Florida, on November 21, 1967,' with all
parties participating pursuant to due notice upon a
complaint issued by the General Counsel on November 7,r
alleging violations of Section 8(b)(4)(i) and (ii)(B) of the
Act, by United Steelworkers of America, AFL-CIO, and
Local 6991, United Steelworkers of America, AFL-CIO,
hereafter referred to individually and collectively as
Respondents.
The complaint, in substance, alleges that Respondents
unlawfully picketed the truck entrance and a railroad
siding to the premises of Auburndale, an object thereof
being to force Auburndale, Minute Maid, and other
persons to cease handling the products of Cypress
Gardens Citrus Products, Inc., herein called Cypress, and
to cease doing business with Cypress. Respondents
contend that the picketing was directed solely at
employees furnishing day-to-day delivery service essential
to Cypress' regular operations, that the picket signs were
explicit, and that their dispute was solely with Cypress,
and that, therefore, they were engaged in lawful primary
activity.
All parties were afforded full opportunity to be heard,
to introduce relevant evidence, to present oral argument,
and to file briefs. The General Counsel and Respondents
filed briefs which have been duly considered. Upon the
entire record in the case, and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. COMMERCE
Auburndale , a Florida corporation , is the sole owner
and operator of a cold-storage warehouse located at
Auburndale , Florida, where it is engaged in the business
of public cold -storage warehousing . In the course and
conduct of said business operations , it annually causes
citrus products valued in excess of $50,000 to be shipped
from its warehouse to points located outside the State of
Florida.
Minute Maid , a Florida corporation , owns and operates
a plant at Auburndale , Florida, where it is engaged in the
business of processing fruits and juices, and annually sells
and ships products valued in excess of $50 ,000 to points
outside the State of Florida . At all times material herein,
Minute Maid leased about 50 percent of the space in
'All dates hereafter refer to the year 1967 unless otherwise noted
'Based upon a charge filed on October 19 in Case 12-CC-S13-1 by
Auburndale Freezer Corporation , hereafter called Auburndale, and a
charge filed on October 20 by Minute Maid Company, hereafter called
Minute Maid.
Auburndale's warehouse for the storage of its citrus
products.
Cypress, a Florida corporation with a plant and
principal place of business located at Eloise , Florida, is
;engaged in the business of processing citrus fruits and
products, and annually ships such products valued in
excess of $50,000 to points located outside the State of
Florida.
Respondents admit , and I find , at all times material
herein , that Auburndale , Minute Maid , and Cypress were
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Respondents admit , and I find , that, at all times
material herein , they have been labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOIj PRACTICES
A. Background
Auburndale ' s premises have two entrances , a truck
entrance (also used for ingress and egress of employees)
and a railroad siding entering its premises about 400 feet
from its warehouse . It warehouses products (mostly citrus)
for about 20 customers, including Cypress and Minute
Maid . In its operations it directly employes only three
individuals, consisting of the general manager, a
maintenance man, and an office secretary, but has an
arrangement with Minute Maid pursuant to which about
30 Minute Maid employees, supervised by their
superintendent (who receives his orders from Auburndale's
general manager), perform the work of unloading
incoming deliveries and placing their contents in storage,
and also service outgoing shipments by removing products
from storage and loading them on trucks , or freight cars.'
At all times material herein , Auburndale was obligated
by contract with Cypress to furnish storage space for up
to 300,000 cases of citrus concentrate, which
approximated about 10 percent of the warehouse space, at
a specified rental scale . The products of Cypress and other
customers are not co-mingled , nor was any designated
space reserved for such storage purposes.
B. The Facts
The facts concerning the issue herein are not in dispute.
Cypress, which is located at Eloise , Florida, about 5 or 6
miles from Auburndale, was struck by Respondents about
October 15, following a breakdown in their bargaining
negotiations . At no time material herein have
Respondents been engaged in any labor dispute with
Auburndale or any of its customers other than Cypress. In
furtherance of their labor dispute with Cypress,
Respondents on about October 17 began picketing the
truck entrance to Auburndale, and also on occasion at the
railroad siding where it enters the premises of
Auburndale.' The picket signs carried by the pickets read
'Ordinarily, Cypress sent its products for storage in its own trucks to
Auburndale' s truck platform where they were unloaded and placed in
storage by the Minute Maid employees Occasionally Cypress sent its
trucks to the warehouse to return some of its products to its own plant for
further processing . When Cypress sold any of its storaged products, it
instructed Auburndale to ship them via a designated common carrier, and
Auburndale would make delivery to that carrier
The picketing continued for 2 weeks , until called off pursuant to a
UNITED STEELWORKERS OF AMERICA , LOCAL 6991
Products are ON STRIKE. We have no dispute with any
other employer . United Steelworkers of America, Local
6991, AFL-CIO."' Picketing occurred during such times
as the Minute Maid employees were working at the
warehouse . At first, about 15 pickets appeared , milling
around the truck entrance , but toward the end only two
pickets appeared . On the first day of picketing,
Auburndale ' s general manager approached the picket line
to inquire as to the reason for picketing , and was told by
one of the pickets , "well, you got our product in there." It
also appears that Cypress did not send any of its trucks to
Auburndale during the picketing . Nor does the record
show that Auburndale shipped any of Cypress' products
via a common carrier while the picketing took place.
C. The Issue Involved
Respondents justify the picketing as lawful on the
ground that it was directed solely at employees furnishing
day-to-day services essential to Cypress' operations at a
"partial" situs (on the premises of Auburndale) of the
dispute between the primary employer (Cypress) and the
Unions.' In support of their position, the Unions claim
that the facts of the instant case fall within the ambit of
Local 761, I.U.E., v. N.L.R.B., 366 U.S. 667 (popularly
known as the General Electric case), and United
Steelworkers v. N.L.R.B., 376 U.S. 492, (usually referred
to as the Carrier case).
In General Electric , that company was the primary
employer engaged in a dispute with its own employees at
its own plant . A number of subcontractors were Section 8(b)(4)(i) and (ii)(B) of the Act by its picketing of
performing various services for General Electric at the the gate . Upon appeal, the Supreme Court, supra,
plant' s site. Separate gates were clearly designated for the approved the Board's application of the standards set
exclusive use of these subcontractors , whose work was of forth in General Electric so as to permit , as legitimate
different types, consisting of routine maintenance services,
- which at times were performed by General Electric's
own employees - and occasionally specialized work of a
capital- improvement nature . Because of unsettled
grievances , the union struck General Electric and picketed
all entrances to its premises, including the gate reserved
for the subcontractors' employees . The Board held that
the picketing at the reserved gate was to enmesh the
employees of the neutral subcontractors , and therefore
violated former Section 8(b)(4)(A) (now, in pertinent part,
8(b)(4)(B)) of the Act. The circuit court of appeals
enforced the Board ' s order . Upon appeal, the Supreme
Court reversed the Board and the circuit court and ruled
that picketing at a gate utilized exclusively by employees
of independent contractors who work on the struck
employer ' s premises is lawful primary activity unless the
following conditions exist:
There must be a separate gate, marked and set apart
from other gates; the work done by the men who use
the gate must be unrelated to the normal operations of
the employer , and the work must be of a kind that
would not, if done when the plant were engaged in its
regular operations, necessitate curtailing those
operations.'
stipulation entered into by the parties in an unjunction proceeding
commenced in the United States District Court , pending adjudication of
the issue by the Board
'Although the picket signs bore only the name of the local, the answer of
each Respondent admitted the picketing.
'In their opening statement , Respondents disclaimed any defense based
on the "allied" doctrine or that they were following or picketing a product.
'Local 761, WE [General Electric Co.] v . N.L.R B , supra . 366 U.S.
at 631.
795
The Court further indicated that, if there was a "mingled
use" of the reserved gate, the picketing would be primary,
unless the work of the independent contractors not
meeting either of the latter two conditions, referred to
above, was "so insubstantial as to be treated by the Board
as de minimis." Inasmuch as the record theretofore made
failed to show the extent to which the reserved gate had
been used by the employees of the independent contractors
in the performance of "conventional maintenance work
necessary to the normal operation" of General Electric,
the case was remanded to the Board. The Board, upon
remand to determine whether the conditions set forth by
the Supreme Court were satisfied, found (138 NLRB 342)
that the work (other than conveyor work) scheduled to be
performed by the subcontractors was necessarily related to
General Electric's normal operations and constituted more
than a de minimis amount, and it, therefore, held that the
picketing was lawful primary picketing and dismissed the
complaint.
In Carrier, that company was engaged in a dispute with
its employees, at its own plant. The union's picketing in
question took place at the gate on a railroad spur track,
owned by the railroad, which was cut through a fence
surrounding the struck employer's premises. This gate was
used exclusively by neutral railroad employees entering the
struck premises to make delivery of supplies to, and
removal of manufactured products from, Carrier. The
Board held (132 NLRB 127) that the railroad's services
were rendered in connection with Carrier's normal
operations, and that, therefore, the Union did not violate
primary action , the involved picketing.
Unlike General Electric and Carrier, both of which
involved picketing at the premises of a struck employer,
the picketing in the instant case occurred at the plant of a
secondary employer (Auburndale), located some 6 miles
from Cypress' plant, the situs of the dispute . Auburndale
was conducting an independent business wholly distinct
and separate from Cypress , in which none of Cypress'
employees were employed . Moreover , Auburndale was
entirely unconcerned in the dispute between Cypress and
Respondents, and sought only to carry on its regular
normal operations . In these circumstances, I find that
General Electric and Carrier are sufficiently
distinguishable as not to be applicable herein . The instant
case closely resembles Warehouse Union Local 6,
International Longshoremen 's and Warehousemen's
Union (Hershey Chocolate Corporation), 153 NLRB
1051. There, the Board held that the involved union
violated Section 8 (b)(4)(i) and (ii)(B) by picketing (with
signs disclosing the identity of the primary employer) an
independent warehouse which stored goods of the primary
employer since the picketing induced employees of a
neutral employer not to handle the primary employer's
products , an object thereof being to force the neutral
employer to cease doing business with the primary
employer . See also Local 868, International Brotherhood
of Teamsters (Mercer Storage Co., Inc.) [Mid-County
Buick Inc.], 156 NLRB 67; Local No . 810, Steel, Metals,
Alloys and Hardware Fabricators and Warehousemen,
etc. (Fein Can Corporation), 131 NLRB 59; and Western
States Regional Council No. 3, International
Woodworkers of America, AFL-CIO et al. (Priest
Logging Inc.), 137 NLRB 352.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I, therefore, conclude that the picketing at Auburndale
(1) induced and encouraged individuals employed by
Auburndale and other secondary employers to cease
performing services for their respective employers, and (2)
coerced and restrained Auburndale, an object thereof
being to force or require Auburndale to cease doing
business with Cypress in violation of Section 8(b)(4)(i) and
(ii)(B) of the Act.
Even assuming , arguendo, that common situs' picketing
is involved herein, as Respondents appear to assert, I
would, nevertheless, also find the picketing violative of
Section 8(b)(4)(i) and (ii)(B). For, if the picketing
occurred at a common situs , then all the conditions'
prescribed in Moore Dry Dock Company (92 NLRB 547)
must be observed. It appears, however, that no trucks of
Cypress approached or arrived at the premises of
Auburndale, nor was it engaged there in its normal
business, at any time while the picketing was in progress.
Thus, in Teamsters, Chauffeurs & Helpers Union, Local
279 (Wilson Teaming Company), 140 NLRB 164, where
the union picketed with signs identifying the primary
employer (Wilson; a trucker) at the premises of the
secondary employer (Morehouse) after the employees of
Wilson left a trailer truck there for the delivery of
merchandise, and departed (as was their usual practice),
and while the secondary employees began to unload the
truck, the Board held that when the primary employer left
the premises, his work was complete until the time to haul
the empty trailer away, and that under the Moore Dry
Dock criteria the primary employer was not engaged in
normal business at the site of the secondary employer and
his work was not being picketed, but the secondary
employer's work of unloading was. The Board , therefore,
concluded that the union violated Section 8(b)(4)(i) and
(ii)(B) since the union picketed the secondary employer
while the primary employer was not engaged in his
normal business at Morehouse.
A fortiori, in the instant case, Cypress neither made
deliveries to nor was engaged in its normal business at
Auburndale when the picketing took place. Accordingly, I
conclude that even assuming that Auburndale's premises
was a common situs , the picketing violated Section
8(b)(4)(i) and (ii)(B) because it failed to satisfy the Moore
Dry Dock criteria.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth above, occurring
in connection with the operations of Auburndale, Minute
Maid, and Cypress, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact and
upon the entire record in these cases, I make the
following:
CONCLUSIONS OF LAW
1. Auburndale, Minute Maid, and Cypress are
employers engaged in commerce within the meaning of
Sections 2(6) and (7) and 8(b)(4) of the Act.
2. By inducing and encouraging individuals employed
by Auburndale and other secondary employers to cease
performing services for their respective employers, with an
object of forcing or requiring Auburndale to cease doing
business with Cypress, Respondents have engaged in
unfair labor practices within the meaning of Section
8(b)(4)(i)(B) of the Act.
3. By coercing and restraining Auburndale and other
secondary employers with an object of forcing or requiring
Auburndale to cease doing business with Cypress,
Respondents have engaged in unfair labor practices within
the meaning of Section 8(b)(4)(ii)(B) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents violated Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that
they be ordered to cease and desist therefrom and to take
certain action to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in these
cases, I recommend that Respondents , United
Steelworkers of America, AFL-CIO, and Local 6991,
United Steelworkers of America , AFL-CIO, their officers,
agents, and representatives , shall:
1. Cease and desist from:
(a) Inducing and encouraging any individual employed
by Auburndale Freezer Corporation or by any other
employer, to engage in a strike or refusal in the course of
his employment to perform any services with an object of
forcing or requiring Auburndale Freezer Corporation or
any other employer to cease doing business with Cypress
Gardens Citrus Products, Inc.
(b) Threatening, coercing , or restraining Auburndale
Freezer Corporation or any other employer , with an
object of forcing or requiring Auburndale Freezer
Corporation to cease doing business with Cypress Gardens
Citrus Products, Inc.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) Post at its business office, meeting halls, and other
places where Respondent Local 6991, United Steelworkers
of America , AFL-CIO, customarily posts notices, copies
of the attached notice marked "Appendix ."" Copies of
said notice , on forms provided by the Regional Director
for Region 12 shall be posted by the Union, after being
duly signed by a representative of each Respondent,
immediately upon receipt thereof, and be maintained for a
period of 60 consecutive days . Reasonable steps shall be
taken to insure that said notices are not altered , defaced,
or covered by any other material.
'A common situs is where two or more employers are performing
separate tasks on common premises
'They are ( 1) the picketing is strictly limited to the times when the situs
of the dispute is located on the secondary employer's premises, (2) at the
times of the picketing the primary employer is engaged in its normal
business at the srtus, (3) the picketing is limited to places reasonably close
to the locations of the srtus, and (4) the picketing discloses clearly that the
dispute is with the primary employer
"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."
UNITED STEELWORKERS OF AMERICA , LOCAL 6991 797
(b) Furnish to the said Regional Director copies of the
aforementioned notice for posting by Auburndale Freezer
Corporation , if it be willing , at places where it
customarily posts notices to its employees.
(c) Notify the Regional Director for Region 12, in
writing , within 20 days from the date of the receipt of this
Decision , what steps the Respondent Local 6991, United
Steelworkers of America , AFL-CIO, has taken to comply
herewith. "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 12 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF UNITED STEELWORKERS OF
AMERICA, AFL-CIO, AND LOCAL 6991 , UNITED
STEELWORKERS OF AMERICA , AFL-CIO; AND TO ALL
EMPLOYEES OF AUBURNDALE FREEZER CORPORATION.
with an object of forcing or requiring Auburndale
Freezer Corporation or any other employer to cease
doing business with Cypress Gardens Citrus Products,
Inc.
WE WILL NOT threaten , coerce , or restrain
Auburndale Freezer Corporation , with an object of
forcing or requiring Auburndale Freezer Corporation to
cease doing business with Cypress Gardens Citrus
Products, Inc.
Dated
Dated
Pursuant to the Recommended Order 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 you that:
WE WILL NOT induce or encourage any individual
employed by Auburndale Freezer Corporation or any
other employer , to engage in a strike or refusal in the
course of their employment to perform any services
UNITED
AMERICA, AFL-CIO
(Labor Organization)
By
(Representative) (Title)
By
LOCAL 6991, UNITED
STEELWORKERS OF AMERICA,
AFL-CIO
(Labor Organization)
(Representative) (Title)
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 members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board' s Regional Office, Room 706,
Federal Office Building , 500 Zack Street , Tampa , Florida
33602, Telephone 223-7711.