Brewery Worker Union No.8, Etc.

National Labor Relations Board - Board Decisions

Aug 31, 1964

148 N.L.R.B. 728 (N.L.R.B. 1964)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
social security payment records , timecards , personnel records and reports, and all
other records necessary to analyze the amounts of backpay and the rights to rein-
statement under the terms of this Recommended Order.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing
Co., 312 U.S. 426; N.L.R.B. v. Entwisitle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. All regular full-time and part-time employees of the Respondent at its Little
Rock, Arkansas, place of business, including front office employees, porters, cleanup
men, maids , waitresses , cooks, cashiers , dishwashers, potwashers , and room service
employees, exclusive of office clerical employees , professional employees , watchmen
and guards , and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
3. On October 30, 1962, the Union was, and at all times since it has been, the
exclusive representative of all employees in said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of their
rights under the Act, by discouraging membership in the Union through discrimina-
tion in employment , and by unilaterally changing the working conditions of the
maids, the Respondent has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3 ), and (5 ) and Sec-
tion 2(6) and (7).
5. The allegation of the complaint that the Respondent violated Section 8(a)(3)
by unilaterally changing the working conditions of the maids has not been sustained.
[Recommended Order omitted from publication.]
Brewery Workers Union No. 8, International Union of United
Brewery, Flour , Cereal , Soft Drink & Distillery Workers of
America, AFL-CIO and Bert P. Williams, Inc. Case No. 1-CC-
360. August 31, 1964
DECISION AND ORDER
On October 4, 1963, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged 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 Re-
spondent and the General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs. The Charging Party filed
an answering brief to the Respondent's exceptions.
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 Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case.' The Board adopts the findings of fact made by the Trial
i As the record, exceptions , and briefs adequately present the issues and positions of
the parties , the Respondent 's request for oral argument is hereby denied.
148 NLRB No. 70.
BREWERY WORKERS UNION NO. 8 , ETC. 729
Examiner to the extent consistent herewith and concludes that the
complaint should be dismissed in its entirety.
1. The recent Tree Fruits decision of the Supreme Court of the
United States,2 requires a reversal of the Trial Examiner's conclusion
that the Respondent violated Section 8(b) (4) (ii) (B) of the Act by
engaging in consumer picketing. The object of this picketing was to
persuade customers of the retail stores which purchased Carling
beer from O'Brien Distributing Co., Inc., herein called O'Brien, with
whom the Respondent had a primary dispute, not to buy this particular
brand of beer. The picketing's purpose was not to persuade the public
from withholding all patronage from the stores, nor was it, as indi-
cated by the Trial Examiner, designed to induce a cessation of work
by the employees of the stores. We therefore find no violation of Sec-
tion 8 (b) (4) (i) (B) in the Respondent's consumer picketing.
2. In addition to the aforementioned picketing, the Respondent also
engaged in picketing the trucks of Bert P. Williams, Inc., herein
called Williams, while the latter's employees were making O'Brien's
beer deliveries to the retail stores. The Trial Examiner found that
Williams was a neutral in the dispute between the Respondent and
O'Brien, and concluded that the picketing of the trucks was violative
of Section 8(b) (4) (i) and (ii) (B) of the Act. We do not agree with
this disposition.
The primary employer, O'Brien Distributing Co., Inc., is the
franchised wholesaler of Carling beer and ale in the Boston area.
O'Brien's contract with Carling Brewing Co., Inc., requires it to have
adequate facilities for warehousing and distributing the Carling beer.
For many years prior to March 1963, O'Brien had maintained a ware-
house and had operated its own truck delivery system to service its
customers. Employees engaged in these warehousing and delivery
operations had been represented for collective-bargaining purposes
by Respondent as part of a multiemployer bargaining unit, which in-
cluded employees of other beer distributors in the Boston area. A
bargaining contract between Respondent and the beer distributors
was effective from April 1961 to March 1, 1963. On December 27, 1962,
O'Brien wrote Respondent that it was terminating this contract on the
March 1, 1963, expiration date. In this letter O'Brien also said that be-'
cause of losses during the past years it was considering discontinuing
its delivery operations and having a contract carrier make the de-
liveries. However, at that time O'Brien admittedly had no fixed
ideas on the subject. The day after O'Brien sent this termination
letter, it sent another letter to Respondent informing the latter that
the beer distributors, including O'Brien, were prepared to meet with
Respondent for the purpose of negotiating a new bargaining contract.
2N.L.R . B. v. Fruit and Vegetable Packers and ' Warehousemen, Local 760, et at. (Tree
Fruits Labor Relations Committee , Inc.), 377 U.S. 58.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Negotiations began in January 1963. O'Brien participated in them
until February 15, 1963, when it withdrew. Shortly thereafter, the
other distributors and Respondent agreed on terms for a new contract.
O'Brien continued individual negotiations with Respondent, offering
contract proposals on February 26 and 28. These were rejected by
Respondent. At midnight on February 28, O'Brien employees struck.
Meanwhile, in December 1962, McDonald, an official of Charging
Party Bert P. Williams, Inc., had solicited O'Brien for the'latter's
trucking business in behalf of Williams and its warehousing in behalf
of Burlington Handling Co. In January and February 1963, Mc-
Donald met with O'Brien officials for further discussions on'a possible
takeover. On February 15 McDonald submitted a written proposal
to O'Brien. On February 25 an O'Brien official called McDonald to
tell him that it had notified its employees that it'had decided to give up
the trucking and warehousing'operation a On February 28'the same
O'Brien official, expecting that the employees would strike the next
day, again called McDonald and asked him if,he had made all arrange=
ments to assume the delivery and warehouse work. McDonald 'an'
swered in the affirmative, whereupon the O'Brien official' replied,
"You have a deal." 4 However, a written contract embodying terms
of the assumption of delivery duties by Williams was not signed until
March 7,1963.
Williams began the delivery of Carling beer on behalf of O'Brien on
March 4, after the start of the strike. For the first week Williams used
O'Brien's leased trucks to make the deliveries,'only covering O'Brien's
name on the trucks with paper sheets bearing Williams' imprint.
Williams did not itself directly lease trucks until March 7 or 8. All
the drivers employed by Williams to make the O'Brien deliveries were
hired between the night of February 28 and March 2. These newly
hired drivers performed precisely the same work done prior to the
strike by O'Brien's how displaced employees. During'the first week
of the new operation, O'Brien's shipping clerks advised William's'
employees concerning the shipment of beer from the warehouse "to
customers.
Williams made no capital investment in assuming O'Brien's truck-
ing operation. O'Brien had leased trucks from-the Hertz Company to
'make its deliveries, and these were subsequently leased by Williams
from Hertz. Asbefore, O'Brien handles the advertising, and its sales-
3Timothy O'Connor, a witness for Respondent , testified that at• this February 25 meet-
ing with employees ,' O'Brien ' officials had said only that they were considering going out
of the delivery business, but that they were still, willing to negotiate an, agreement with
Respondent . The Trial Examiner found it unnecessary to resolve the conflict.
4 O'Brien testified that Before he closed his deal with Williams , he knew that his em-
ployees had rejected his last offer to the Union and that his employees were not going
to work on Friday, March 1 Accordingly, it is reasonable to infer that - O'Brien was
aware on, February 28 that his employees would strike the following day.
BREWERY WORKERS UNION NO. 8, ETC. 731
men solicit the business and arrange for shipping dates with the
customers from whom they procure the orders. O'Brien has the right
to check and inspect the loads on the delivery trucks and is still re-
sponsible to its customers to give them the service they demand.
After assumption of deliveries by Williams, strikers picketed the
O'Brien warehouse and also followed the Williams'. trucks making
deliveries from the warehouse to O'Brien's customers. When. these
trucks arrived in the vicinity of the retail stores to which deliveries
were being made, the strikers picketed the trucks with signs ad-
vertising the dispute with O'Brien. An admitted purpose of the
picketing was to induce Williams' employees not to make the deliveries.
- Section 8(b) (4) (B) of the Act, commonly referred to as the sec-
ondary boycott provision, makes it an unfair labor practice for a
union (i) to induce or encourage employees to engage in a work stop-
page, and (ii) to threaten or coerce employers, where in either case
an object is to compel any employer to cease doing business with any
other employer. Read literally, this section would proscribe,primary
picketing, but this was obviously not its intended, purpose.' In the
words of Senator Taft, this provision of the Act was intended to make
it unlawful for a union "to resort to a secondary boycott to injure the
business of a third person who is wholly unconcerned in the disagree-
ment between an employer and his employees." 8
In its efforts to promote the dual congressional objectives'of Sec-
tion 8(b) (4) (B) of preserving the rights of unions in primary dis-
putes and, at the same time, of shielding employers from pressures' in
controversies in which they are unconcerned,' the Board, with court
approval, has decided that an ally of the employer with whom a union
has a primary dispute is not the "unconcerned" employer who was in-'
tended to be protected as noted above'.8
5 Cf United Steelworkers of America (Carrier Corp.) v 'N L.R B., 376 U.S. 492
6 93 Congressional Record 4323 During, congressional debate on the provision which
was to become Section 8 (b) (4) of the Act, Senator Taft also declared:
The secondary boycott ban is merely intended ;to prevent a union from injuring a
third person who is not involved in any way in the dispute or a strike . . ._. It is
not intended to apply to a case where the third person is, in effect, in, cahoots,with
,or acting , as part of the primary, employer 95 Congressional Record 87,09
7 N L.R.B v. Denver Building and Construction Trades Council , at al. ( Gould & Preisner),
341 U.S. 675, 692.
8 Doud8 v. Metropolitan Federation of Architects , Engineers, Chemists and Technicians,
Local 231 ( Ebasco Services , Inc.), 75 F. Supp . 672 (D.C.,N Y.) ; N L.R.B. v. Business
Machine and Office Appliance Mechanics Conference Board , Local 459, Internet onal
Union of Electrical , Radio & Machine Workers, CIO ( Royal Typewriter Co.), 228 F 2d
553 (CA 2) : United Steelworkers of America, AFL-CIO (Tennessee Coal & Iron Divi-
sion of the United States, Steel Corporation), 127 NLRB 823, enfd , ac modified in other
renpeets, 294 F. 2d 256 (C.A D C ) ; Local 810 , Steel , Metals, Alloys and Hardware Fabri-
cators and. 1Varelwusenieiy International Brotherhood of Tcamsteis,. Chauffeurs, Ware-
housemen and Helpers of America ( Fein Can Corporation ), 131 NLRB 59, enfd 299 F 2d
636 (CA. 2) , Highway Truckdrivers and Helpers , Local No. 107 , International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Independent
(Kiss &'Company, Inc.) 130 NLRB' 9434 'enfd. 300"1F. 2d 317 (CA, 3).
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that the picketing of the Williams' trucks
making the deliveries formerly made by the striking employees was
lawful because Williams was an ally of O'Brien and not a true neutral.
In N.L.R.B. v. Business Machines and Office Appliance Mechanics
Conference Board, Local 459, International Union,o f Electrical, Radio
cc Machine Workers, CIO (Royal Typewriter Co.), 228 F. 2d 553, 559
(C.A. 2), cert. denied, 351 U.S. 962, the court said :
... an employer is not within the protection of § 8(b) (4) (A)
[now § 8 (b) (4) (B) ] when he knowingly does work which would
otherwise be done by the striking employees of the primary em-
ployer and where this work is paid for by the primary employer
pursuant to an arrangement devised and originated by him to en-
able him to meet his contractual obligations .9
We believe that Williams comes within this definition of an "ally."
It knowingly did work which would otherwise have been done by the
striking employees of the primary employer, O'Brien, and this work
was paid for by O'Brien pursuant to an arrangement originated by
O'Brien to enable it to meet its own contractual obligations to Carling.
The Trial Examiner, however, refused to find that Williams was an
"ally" of O'Brien because, in his view of the evidence, Williams would
have received its contract even if there had been no strike. We do
not agree with this inference drawn by the Trial Examiner.
Although O'Brien was concerned about its delivery costs and was
exploring the possibility of contracting out its delivery work for
months before the strike, it had made no decision relative thereto in
the early months of 1963.10 Notwithstanding its December 27 notice
to Respondent, O'Brien participated in joint bargaining negotiations
with other beer wholesalers to February 15, and bargained indi-
vidually with Respondent until the eve of the expiration of the 1961
contract. To accept the Trial Examiner's inference would require
the further inference, which we believe unwarranted, that during its
participation in joint and several bargaining negotiations with Re-
6 In the same case, Judge Learned Hand said ( 228 F. 2d at 562) :
As I understand § 8(b) (4) (A ) [ now 8 ( b) (4) (B)], It is meant to protect from in-
dustrial pressure employers , who have not made common cause with the primary
employer. The theory is that they should be free to carry on their businesses with-
out being subject to sanctions that are reasonable between parties to the dispute
When, however , a secondary employer accepts business for which the primary em-
ployer pays him, although it is not an inevitable inference that, but for the strike,
the primary employer would have done the business himself, I see no reason why he
should not be compelled to prove that the primary employer would not have done it,
if he could have Therefore I think that , even though the Union meant to induce a
strike of the "independents ' " employees , it was within its rights.
io The tentative nature of the talks with McDonald before February 15, when O'Brien
withdrew from the multiemployer bargaining with Respondent , is evidenced by the follow-
ing testimony of George O'Brien:
When he' [McDonald ] was first exploring our operations , I told him just because he
came over to see it he didn't have the contract with us. But I said , "if you want to
find the time to take a look at this ," and he said , "Fine," he did.
BREWERY WORKERS UNION NO. 8 , 'ETC. 733
spondent , O'Brien was not acting in good faith . 11 If O'Brien had al-
ready determined to contract out its delivery work, its negotiations
with Respondent on future terms and conditions of employment for
delivery employees were a sham . Moreover , McDonald admitted that
during his negotiations with O'Brien representatives in January and
February 1963, he had been aware that O'Brien was participating in
the negotiations for a new contract with Respondent and that he had
been told that no deal could be completed with him until the O'Brien
representatives knew "what was going to happen to this contract with
Local 8 [Respondent]." This to us means that O'Brien representatives
were telling McDonald that any arrangement with Williams would de-
pend on the failure of the current bargaining negotiations with Re-
spondent . Further, the timing of the contract with Williams shows its
close connection with the strike . As found by the Trial Examiner,
O'Brien did not make a binding agreement with Williams until
March 1, at the earliest , which was after the start of the strike, "and
conceivably , not until the signing of the contract several days later."
Finally, the improvisations resorted to by Williams in order to assume
the work of the striking employees , indicates that O 'Brien's arrange-
ment with Williams was hastily conceived . It may be, of course, that
sometime in the future O'Brien might have contracted out its delivery
work, but the decision to contract out coincidentally with the strike
was, we hold, caused by the failure or imminent failure of collective-
bargaining negotiations with Respondent and represented an attempt
by O'Brien to insure continuance of beer deliveries notwithstanding
the strike by its own employees . We find that , under these circum-
stances, Williams was an "ally" of O'Brien within the compass of the
Ebasco-Royal Typewriter doctrine 12 and that the picketing of Wil-
liams' trucks engaged in doing the work formerly done by O'Brien's
employees was primary picketing and lawful.
Apart from the cases adverted to above, other considerations also
impel us to the conclusion that Respondent 's picketing of Williams'
trucks constituted legitimate primary activity.
It is quite clear that the subcontracting of O'Brien delivery opera-
tions neither nullified the strike , which was then already in progress,
nor converted its initial and lawful primary objective-to obtain a
collective-bargaining contract-into an unlawful secondary objective.
"The General Counsel dismissed unfair labor practice charges filed. by Respond-
ent against O'Brien alleging that the latter had unlawfully refused to bargain with
Respondent.
12 Our conclusion in this respect is not altered by the fact that O'Brien ' s contract with
Williams was not for a term limited to the duration of the strike . The fact- that a
subcontractor may exact a fixed - term agreement as the price for undertaking struck work
does not in our opinion remove him from an ally status within the Ebasco -Royal Type-
writer principle. The essential point is that but for the strike the work at that time
would have been done by the striking employees . To uphold a distinction between a
subcontract for the striker ' s duration and one for a fixed term as alone controlling would
provide a ready means for evading the struck work doctrine.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And this is so even though attainment of that objective would now
require as an incidental effect the cessation of O'Brien's business with
Williams. The striking employees and their union thus continued to
retain a legitimate interest in publicizing their primary labor dispute
with O'Brien at the locus of that dispute. Had O'Brien operated its
delivery service after the strike began with replacement employees
whom it hired directly, there can be little doubt that Respondent would
have had a lawful right to follow the trucks, which marked the
strikers' normal work situs, and to appeal to the replacements to sup-
port its cause. Was the strikers' right to engage in such primary strike
activity at their normal work situs cut off because O'Brien subcon-
tracted its delivery operation to Williams for a fixed term? In the
particular circumstances of this case, we are satisfied that it was not.
Here Williams was scarcely in the position of the unconcerned em-
ployer whom Section 8(b) (4) (B) is designed to protect-one forced
into a labor dispute not his own for reasons outside his control. When
Williams entered into its contract with O'Brien, it did so with full
knowledge that O'Brien's business operations were then subject to
strike sanctions. The work which Williams undertook to take over was
an integral part of the regular business operation O'Brien was re-
quired to conduct under its franchise from Carling. With respect
to the delivery branch of O'Brien's business, Williams, in effect, placed
itself in the position of O'Brien, the primary employer, performing,
through the newly hired employees it put on for that specific purpose,
O'Brien's delivery work in precisely the same manner as O'Brien had
done, with the same rented trucks, with deliveries originating at the
same warehouse and destined as before for O'Brien's customers ex-
clusively, and with no commingling of O'Brien's work with other
business of Williams' own. Thus Williams' newly hired employees
became for all practical purposes replacements for O'Brien's striking
employees, performing at the same locations the identical work which,
but for the failure of contract negotiations and the consequent strike
and subcontracting, the strikers would have performed and which they
could again expect to perform if the primary strike proved successful.
In these circumstances we think it would be both artificial and at
variance with congressional intent to view Williams as a neutral within
the protection of 8 (b) (4) (B), or to hold that because the replacements
had been effected indirectly by Williams rather than directly by
O'Brien, the strikers had forfeited their legitimate primary interest to
picket the trucks driven by the employees who were occupying their
jobs. 13
13 Contrary to the implication in the dissent , our decision is not intended to impinge
upon an employer's legitimate right to subcontract . The sole issue here is whether in
the particular circumstances of this case, the Union had the right to publicize its primary
dispute with O'Brien by engaging in picketing activities at the strikers ' normal work
situs, notwithstanding the subcontracting after the strike began of the business operation
in which the strikers had been engaged . For reasons expressed above, we hold that it did.
BREWERY WORKERS UNION NO. 8, ETC. -' 735
We accordingly conclude that the Respondent was engaged in pri-
mary activity in picketing the trucks engaged in doing the work.form-
erly, done by O'Brien's employees, and that Section 8(b) (4) (B) was
not thereby violated.
[The Board dismissed the complaint.]
MEMBER LEEDOM concurring in part and dissenting in part :
Like my colleagues and for the reasons stated in the majority
opinion, I find no violation of Section 8(b) (4) (ii) (B) in the Re-
spondent's consumer picketing.
However, I do not agree with my colleagues that the Trial Ex-
aminer's conclusion as to the Respondent's other violations of Sec-
tion 8(b) (4) (i) and (ii) (B) should be reversed. In this connection
I cannot agree with their finding that Williams was handling struck
work; that Williams was therefore an ally, of O'Brien; and hence the
picketing in question was primary protected picketing.
My colleagues' conclusion that Williams was an ally of O'Brien
would have had sounder support had O'Brien subcontracted the work
of the employees in the bargaining unit as a result of the Union's strike
against O'Brien. But, as the Trial Examiner points out, struck work,
within the meaning of the ally concept, is work which would have
been performed by the striking employees but for the strike; and, here,
the work would have been subcontracted even if no strike had occurred.
A chronology of the events which occurred bears this out. Long
before the strike occurred O'Brien was concerned about its labor costs
and was exploring the possibility of subcontracting its delivery work,
as O'Brien had done in the past. More than 2 months before the
strike occurred, on December 27, 1962, O'Brien gave the Union notice
of termination of their contract to end on March 1, 1963, informed the
Union that , because of losses in past years , O'Brien was considering
closing its delivery operations and having a contract carrier do all this
work, and offered to discuss this proposed action with the Union.
O'Brien began negotiations with Williams looking toward subcon-
tracting of the work early in 1963. During January 1963, repre-
sentatives of O'Brien and Williams met several times and discussed
the conditions under which the work would be subcontracted. - On
February 11, 1963, Williams' representative met with representatives
of Hertz, a truck leasing company, and was informed that Hertz had
trucks available for lease to Williams. Four days later, on Feb-
ruary 15, Williams submitted to O'Brien a written proposal to take
over the work to be subcontracted. On February 25; 10 days.later,
O'Brien called Williams' representative by telephone and advised him
that O'Brien'had notified the O'Brien employees of "the decision to
give up the trucking and warehousing operations and,had informed
736 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
them to seek interviews for employment with the contracting com-
panies." On February 28, O'Brien inquired from Williams ' represent-
ative whether he had arranged for "necessary insurance , lease,
and contract ," and whether Williams had obtained the necessary per-
sonnel . Williams' representative assured O'Brien that all these
things had been done and advised O'Brien that Williams was ready
"to take over" on March 4 . Thereupon , O'Brien stated : "You have
a deal ." Arrangements were made to meet on March 1 . At this
meeting a contract was prepared which essentially contained the terms
proposed by Williams on February 15. Although the contract was
read by the parties it was not then signed because it contained ty-
pographical errors which required retyping of the document. The
contract , dated March 4, was not signed until about March 7, 1963,
and was for a fixed term of 2 years.
While these negotiations were being conducted ,' the Union was en-
deavoring to obtain a new contract with O 'Brien. After O'Brien
withdrew from negotiations , which a group of beer distributors, in-
cluding O'Brien , had conducted on a multiemployer basis, the State
conciliation service persuaded O'Brien to continue negotiations on
an individual basis . Accordingly , O'Brien made a contract proposal
to the Union which ; if accepted , would have meant continuation by
O'Brien of its trucking and warehousing operations . O'Brien sub-
mitted the written proposal to the conciliator on February 26 for trans-
mittal to the Union; the same proposal was reoffered on February 28.
When these offers were made O'Brien felt that he had a binding com-
mitment with Williams, but O'Brien was sure that his proposals to
the Union would not be accepted because he had learned of an
assurance by the Union to the other beer distributors that O'Brien
would not be accorded better terms than theirs , and, apparently,
O'Brien 's proposals to the Union called for such better terms.
On February 25 O'Brien called a meeting of its truckers and ware-
housemen and either told them of O'Brien's decision to subcontract
the work or, at least, that O'Brien was considering such action. In
any event , the employees thereupon held a meeting and voted to strike.
The strike began at midnight of February 28, 1963 , coincident with
termination of the Union 's contract with O 'Brien . The strike vote
was not communicated to O'Brien before the strike occurred and the
strike began after Williams had- advised O'Brien that Williams was
set to begin the operations to be subcontracted and O 'Brien had au-
thorized Williams to begin such operations the following Monday,
March 4 . Admittedly , O'Brien knew on February 28 that O'Brien
employees would not report for work upon expiration of the contract,
but it does not follow from this, in view of all the circumstances, in-
cluding the negotiations with Williams, that O'Brien subcontracted
the work because the employees decided to strike.
BREWERY WORKERS UNION NO. 8, ETC. 737
The foregoing makes clear, as it did to the Trial Examiner, that
O'Brien subcontracted the work, not by. reason of the strike, but be-
cause O'Brien was able' to make economically suitable terms with
Williams but could not do so with the Union.
Among other reasons, my colleagues reject this view because it would
require the drawing of an unwarranted inference that O'Brien was not
acting in good faith in negotiating with the Union.14 They argue that,
"If O'Brien had already determined to contract out its delivery work,
its negotiations with' Respondent on future terms and conditions of em-
ployment for delivery employees were a sham." The answer to this is
that it ignores the evidence establishing that O'Brien conducted paral-
lel negotiations with both the Union and Williams to obtain more
economically feasible terms, and awarded the work to Williams rather
than to its own employees because Williams offered better terms. It
is indeed evident that if the Union had accepted O'Brien's proposals
of February 28, the work would not have been subcontracted to Wil-
liams, and it is at least inferrable that the Union could not consider it
because of assurances to the other distributors. This is not a case
where a subcontractor. undertook to perform work theretofore per-
formed by strikers for the duration of a strike or a part thereof. On
the contrary, Williams undertook to perform the subcontracted opera-
tions for a term of 2 years without regard to the existence of a strike.
To conclude, as do my colleagues, that the subcontracting was resorted
to as a device to replace the strikers would require the drawing of an
inference, which I submit is unwarranted, that O'Brien's contractual
arrangement with Williams was only for the duration of the strike,
and thus a sham. Thus, it is clear to me that as Williams offered the
more economically feasible terms, the work would have been sub-
contracted to Williams even if no strike had occurred.
My colleagues also seem to draw a sinister connotation from the
facts that (1) during negotiations with O'Brien, Williams' represent-
ative knew that O'Brien was negotiating with the Union and that
Williams was told that no- deal could be completed with Williams
until O'Brien knew "what was going to happen to,this contract with
Local 8," the Respondent; (2) the timing of the contract with Wil-
liams shows its close association with the strike; and (3) the improv-
isations resorted to by Williams in-order to assume "the work of the
striking employees" indicates that O'Brien's arrangement with Wil-
liams was "hastily conceived."
True, Williams had to await the outcome of O'Brien's negotiations
with the Union, but it does not follow therefrom that O'Brien awarded
the work to Williams because of the strike. As already indicated
a' It is noteworthy that the General Counsel refused to issue a complaint on charges by
the Union that this conduct violated Section 8 ( a) (5).
760-577-65-vol. 148-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, O'Brien conducted negotiations with both the Union and Wil-
liams to see who would offer better economic terms, and gave the work
to Williams because the latter offered better terms. And, while the
subcontracting occurred closely in point of time with the strike, there
is likewise a close association between the subcontracting, the termi-
nation of O'Brien's contract with the Union, and the end of the
negotiations with the Union when O'Brien became able to determine
whether to subcontract the work or to continue operating with its own
employees.15 As to the improvisations, it appears that Williams was
not fully prepared to take over the subcontracted operations on
March 4 because the outcome of the negotiations with the Union was
still in doubt until as late as February 28. That O'Brien's arrange-
ment with Williams, contrary to my colleagues, was not hastily con-
ceived is evidenced by the fact that O'Brien contemplated subcon-
tracting as far back as December 1962, and began negotiations with
Williams with that end in view in January 1963, long before the
strike began.
Accordingly, like the Trial Examiner, I would reject the defense
that Williams was not a neutral party to the Union's dispute with
O'Brien, and find that the Respondent violated Section 8(b) (4) (i)
and (ii) (B) by its picketing which, admittedly, sought to force Wil-
liams to cease doing business with O'Brien.
15 Do my colleagues , mean to say, in view of their emphasis on the timing , that an em-
ployer who determines to subcontract for legitimate reasons at the end of his contract
with a union can escape being made an "ally" by virtue of his subcontract only if he
anticipates the end of the union contract term by both entering into a firm subcontract
at an early date, thus limiting the time available to the Union to try to persuade him
not to subcontract , and by implementing the subcontract before the end of union contract
term, thus depriving his employees of employment they might otherwise have had?
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon the filing of a charge on April 12 , 1963 , and an amended charge on May 6,
1963, by Bert P. Williams, Inc., herein called Williams , the General Counsel of the
National Labor Relations Board , herein called the Board , by the Regional Director
for Region 1, issued a complaint on May 16, 1963, alleging that Brewery Workers
Union No . 8, International Union of United Brewery, Flour , Cereal , Soft Drink
& Distillery Workers of America , AFL-CIO, herein called the Union , had engaged
in and was engaging in conduct violative of Section 8(b) (4) (i) and (ii ) (B) and
Section 2 ( 6) and (7) of the Act. The Union's answer and amended answer deny
the complaint allegations of statutory violation . Pursuant to notice , a hearing
was held on July 8 and 9, 1963, before Trial Examiner Thomas N. Kessel. The
parties were represented by counsel . Briefs filed by the parties after the close of
the hearing have been considered.
Upon consideration of the entire record and from my observation of the witnesses,
I make the following: -
FINDINGS AND CONCLUSIONS
1. THE PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that Williams is a Massachusetts
corporation maintaining its principal office and place of business in Burlington, Mas-
sachusetts , where it is engaged as a common carrier in the transportation by motor
vehicle of goods and products ; that Williams , in the operation of. its business,
BREWERY WORKERS UNION NO. 8, ETC. 739
transports goods and materials between various States of the United States and
annually performs services in connection with the movement of goods in interstate
commerce which are valued in excess of $50,000; and that Williams performs
services valued in excess of $50,000 annually for companies which themselves
annually purchase and receive goods and materials directly from points outside
Massachusetts valued in excess of $50,000, and are themselves engaged in interstate
commerce within the meaning of the Act. It is further alleged and admitted that
O'Brien Distributing Co., Inc., herein called O'Brien , is a Massachusetts corporation
engaged at Charlestown, Massachusetts , in the sale and distribution of malt beverages,
and that in the operation of its business O'Brien annually purchases and receives
goods and materials valued in excess of $50,000 from Carling Brewing Co., Inc.,
of Natick, Massachusetts , and that the latter company ships and receives goods
and materials to points outside Massachusetts valued annually in excess of $50,000.
It is conceded and I find from the foregoing facts that Williams, and O'Brien are
engaged in interstate commerce within the meaning of the Act, and I find that the
purposes of the Act will be effectuated by the assertion of the Board's jurisdiction in
this case.
I. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
M. THE UNFAIR LABOR PRACTICES
In the operation of its beer distributing business in the Boston area under its
franchise with Carling Brewing Co., Inc., O'Brien had until March 1963 main-
tained a warehouse and a truck delivery system to transport beer to its retail cus-
tomers. The Union had been the representative of O'Brien 's employees engaged
in these warehousing and delivery operations . On March 1 , 1963 , the Union struck
O'Brien because of the latter 's failure to reach agreement on a new contract. By
contracts dated March 4, 1963, but signed a few days later, O'Brien engaged Wil-
liams to do the trucking to customers and engaged Burlington Handling Co., herein
called Burlington , to do the warehousing . Employees of Williams and Burlington
are represented by the Teamsters.
In the course of the foregoing strike the Union admittedly followed Williams'
trucks to O'Brien's customers to whom deliveries of Carling 's beer were intended
to be made. The conduct alleged herein as unlawful consists of the Union 's activities
at the premises of these customers when the trucks arrived to make their deliveries.
The General Counsel and Charging Party maintain, and the Respondent readily
admits, that the strikers who followed the trucks to these places carried out the
Union's policy to induce Williams' employees not. to make the deliveries to O'Brien's
customers . They contend that by such strike action the Union unlawfully sought
to force Williams to cease doing business with O 'Brien and thereby violated Section
8(b) (4) (i ) and (ii ) (B) of the Act . In defense the Union asserts that Williams had
undertaken to perform O'Brien's struck work in the latter's dispute with the Union
and thereby became O 'Brien's ally in that dispute . Accordingly , says the Union,
Williams, like O 'Brien , was a primary employer in the dispute with the Union and
was not shielded by the Act from the Union 's primary strike action against it. The
picketing of Williams ' trucks at customer locations , according to the Union, pru-
dently conformed to Moore-Drydock standards and did not infringe the Act.
The General Counsel and Charging Party further contend that the Union's strike
activities were not confined to Williams ' trucks while deliveries were being made to
O'Brien's customers, but that while the trucks were at these places the pickets engaged
in prohibited consumer picketing in front of the retail establishments to compel
O'Brien's customers to cease doing business with it and by this conduct also violated
Section 8(b)(4)(i) and (ii)(B) of the Act. The -Union denies that its pickets
engaged in this conduct , but, argues the Union , if the record does establish such
conduct it nevertheless should not be found unlawful for the General Counsel must,
and did not, additionally prove that in fact this conduct threatened, coerced, or
restrained O'Brien 's customers to force them to cease doing business with O 'Brien.
The Union and Charging Party are satisfied that mere proof of consumer picket-
ing is sufficient to support a finding that Section 8 (b) (4) (i) and ( ii) (B) was violated,
but that in any event the record further shows, in fact, this picketing did threaten,
coerce, or restrain within the meaning of the cited statutory provision.
The Ally Defense
The Union 's brief presents two arguments to support a conclusion that Williams
was allied - with O 'Brien in the dispute with the Union . -Reliance is placed first
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the integration of Williams ', delivery operation to O'Brien 's customers with,
O'Brien 's sales and servicing operations for these same customers and this is
coupled with evidence of the joint effort by O 'Brien's and Williams '. officials to
persuade these customers to continue to make beer purchases from O'Brien and to
accept deliveries from Williams during the strike . These circumstances, in the
Union 's view, are not compatible with Williams ' claimed neutrality during the
strike. Next, the Union regards Williams' trucking operation .for O 'Brien as work
"farmed out" to it during the strike because Williams received its contract from
O'Brien and began operating for O 'Brien after the strike started on March 1, 1963.
As the performer of such farmed out or struck work which , but for the strike,
would have been done by O'Brien 's striking employees , Williams assertedly was
O'Brien 's ally in that strike and not immunized by the Act-from the reach of the
Union 's picketing.
The General Counsel and the Charging Party view the evidence differently. To
them O'Brien and Williams are "arms length" contractors whose business interests
are wholly separate and independent notwithstanding their complementary functions
in carrying out O 'Brien's obligations under the Carling franchise . As such, they
are deemed not allies within the Board 's meaning of that term . They dispute
the claim that Williams performed farmed out or struck work for O 'Brien and as-
sert that the contracting of the work to Williams was not in consequence of the
Union 's dispute with Williams ' but instead caused it. The General Counsel 's brief
emphasizes that Williams' contract was not just for the duration of the strike, but
was for a fixed term of 2 years, and in this respect differs from an arrangement
whereby one employer allies himself with another struck employer by undertaking
for the period of the strike to do the work which but for the ,strike would have
been performed by the striking employees.
The facts relevant to Williams' dealings and relations with O'Brien are derived
essentially from the credited testimony of David P . McDonald , Williams' vice presi-
dent and general manager, and George O 'Brien , Jr., O'Brien 's vice president and
representative in collective bargaining . McDonald is also president and one of the
two owners of Burlington Handling Co.
As noted , O'Brien 's warehousing and truck delivery employees had been rep-
resented by the Union and had been covered by a collective-bargaining contract
with that organization having a March 1 , 1963, termination date. For some time
before that date the Union had been negotiating with O 'Brien for a new contract.
By letter dated December 27 , 1962 , O'Brien sent the Union notification that the
contract was to end on its March 1 , 1963, termination date . The obvious intention
was to forestall automatic renewal of the contract as provided therein absent ap-
propriate notice . The letter also informed the Union that because of losses in
past years O'Brien was considering closing its delivery operations and having a
contract carrier do all of this work . Offer was made in the letter to discuss this
proposed action.
In December 1962 McDonald approached George O'Brien , Jr., and another
O'Brien official , Vice President MacKnight , to solicit O'Brien 's trucking operations
for Williams and its warehousing for Burlington Handling Co .' He was told to come
back after the first of the next year . McDonald returned in January and in that
month several times discussed with O 'Brien's officials the nature of O'Brien 's business
and the conditions under which Williams and Burlington would take over the truck-
ing and warehousing operations . McDonald was offered the opportunity to assume
O'Brien's truck rental contract with the Hertz truck rental company, but preferred
to make such arrangements directly with Hertz . On February 1 he met with Hertz
representatives and was informed of the availability of sufficient equipment by lease
directly to Williams . On February 15 McDonald met again with O 'Brien and
MacKnight and submitted a written proposal. On February 25 O'Brien called him
by telephone and advised that he had notified the O 'Brien employees of the decision
to give up the trucking and warehousing operations and had informed them to seek
interviews for employment with the contracting companies . On February 28
O'Brien inquired from McDonald whether he had arranged for necessary insurance,
lease, and contract , and whether he had obtained the necessary personnel.
McDonald assured him all these things had been done and advised he was ready to
take over on March 4. Thereupon O'Brien declared , "You have a deal." Ar-
rangements were made for them to meet on March 1 at the office of O'Brien's
attorneys . At this meeting a contract with Williams was prepared which essentially
contained the terms proposed by McDonald on February 15. The contract was
read by the parties but not signed because it contained typographical errors which
required retyping-of the document . Although the contract bears a March 4, 1963,
execution date it admittedly was not signed that day but about March 7.
BREWERY WORKERS UNION NO. 8, ETC. 741
Out of the negotiations 'by McDonald with O'Brien there emerged two contracts,
.the one signed by Williams for the delivery of O'Brien's beer to customers and another
by Burlington for the warehousing. This division was apparently sought by Mc-
Donald for personal reasons for, as George O' Brien , Jr., credibly explained, whether
.the trucking and warehousing were contracted out to one or two companies was
immaterial to him. McDonald claimed this separation was accomplished for greater
efficiency and because the Williams' truckers and Burlington warehousemen were to
be represented by separate Teamster locals which necessitated the separation of
.trucking and warehousing functions to preserve the job opportunities of the employees
in each group. McDonald may have sought the warehousing contract for Burlington
for personal profit. He and a person named DiSilva are its sole owners and principal
officers.' Whatever the explanation, the fact is that McDonald%simultaneously ne-
gotiated the Williams and Burlington contracts and both were simultaneously signed.
While the foregoing contract negotiations were being conducted, the Union, as
previously stated, was endeavoring to obtain a new contract with O'Brien. The latter
had been negotiating jointly with other beer distributors with the Union until
February 15. On that date O'Brien left the group and proceeded on its own. The
Union appears to have reached agreement with the other distributors.
George O'Brien , Jr., related that subsequent to his February 15 withdrawal from
the joint negotiations he had acceded to the persuasion of the State conciliation service
to continue negotiations with the Union. He had accordingly made a proposal to the
Union which, if accepted, would have meant continuation by O'Brien of its trucking
and warehousing operations. He recalled a February 26 meeting when he had sub-
mitted a written proposal to the conciliator for transmittal to the Union. The same
.proposal was reoffered on February 28. O'Brien felt that when these offers were
made he had a binding commitment with McDonald to take over the trucking and
warehousing operations on the basis of a handshake a couple of days after he had
walked out of the joint negotiations and because of his personal mental resolve to
that effect. He was sure his proposals to the Union would not be accepted because
he had learned of the Union's obligation to the other beer distributors not to accord
O'Brien better terms than theirs, and, apparently, O'Brien's proposals called for such
better terms. On February 25 O'Brien and MacKnight addressed the O'Brien truck-
ers and warehousemen. O'Brien claims that on this occasion the employees were in-
formed of the decision to contact with Williams and Burlington and that the employ-
ees were advised to seek employment with these companies. Timothy O'Connor, one
of the striking drivers, testified that at this meeting the employees were informed only
that O'Brien was considering this action and not that it had been definitely ac-
-complished. For reasons later stated, these differing constructions of what was said
at the meeting are of no material consequnece. In any event, the employees there-
upon held a meeting and voted to strike. O'Brien insists he did not before March 1
know that this was their vote but did learn that day that such action was to occur.
He maintains he had checked with McDonald on February 28 and learned that he
was set to begin operations and advised him to start the next Monday, March 4.
'The strike began at midnight February 28.
McDonald was aware during his negotiations with O'Brien's officials that their
company's employees were represented by the Union and were covered by an
unexpired contract. He had, however, in January been shown the aforementioned
December 27 letter from O'Brien to ,the Union forestalling automatic renewal of the
contract and advising that O'Brien was considering contracting out its trucking and
warehousing. He was further aware of the Union's efforts to secure renewal of its
contract and that negotiations were in progress at least until February 15, 1963.
McDonald conceded that George O'Brien, Jr., had told him a deal could not be
completed until O'Brien know what would be the outcome of the contract discussion
with the Union. He denied, however, that in his conversations with O'Brien in
January and February 1963, the procurement of a contract for Williams was made
contineent upon the Union's failure to obtain a contract. Finally, McDonald ad-
mitted knowing that on March 1 the Union had started its strike and was picketing
O'Brien at its place of business and that Williams' employees reported for work there
for the first time,on March 4.
Williams' lease for Hertz trucks, as stated, was not signed. until March 7 or 8.
Upon commencement of deliveries for O'Brien the latter's trucks leased from Hertz
were used with paper sheets showing Williams' name covering the O'Brien sign appear-
Williams' stock is owned entirely by a person named Daniel 'Costa. Costa has no
pronrietarv interest of any kind in Burlington. Aside from McDonald's vice presidency
in Williams no officer or member of the Williams' board of directors has any financial
Interest or holds any executive position in Burlington.
742 DECISIONS OF NATIONAL LABOR RELATIONS--BOARD
ing on the trucks. McDonald agreed that Williams' assumption of the O'Brien.truck-
ing operation involved no capital investment and that it was,merely a matter of
leasing trucks from Hertz and bringing men over to drive them.
During the first weeks of Williams' operations O'Brien's former shipping clerks
advised concerning the shipment of beer from the warehouse to customers. These
clerks remained O'Bnen's employees and eventually ceased their advisory help.
McDonald maintained that he at all times was, in charge of shipments and he himself
determined the manner by which these operations were performed. Actually, under
Williams, as before, O'Brien's salesmen arranged for shipping dates with the cus-
tomers when they procure orders. Then when.the orders are received by O'Brien's,
clerks, who have an office on the same floor of the warehouse where Burlington now
performs its operations, the orders are assembled by them according to geographic
location of customers, and, quite obviously, Burlington employees thereafter secure
stock and load trucks to make deliveries on this basis. O'Brien is still responsible
to its customers to give them the service they demand. This may necessitate inform-
ing Williams at times of a customer's insistence upon a special delivery and Williams'
compliance .therewith. O'Brien has the right under its contract with Williams to check
and inspect the loads,on the latter's trucks, but has never done so.
I have noted that the premises used by Burlington were sublet from O'Brien, and
that the latter continues to use a portion of the area for its administrative and sales
purposes. It also retains space for employees to do the coil servicing work for
taverns and bars which sell draught beer. Advertising material, presumably from
Carling, is received by O'Brien at the warehouse but kept in the custody of O'Brien's
employees and distributed by them to customers from O'Brien's vehicles.
It is established that after the strike started the Union encouraged O'Brien's cus-
tomers to refuse deliveries of beer by Williams' trucks, and, that O'Brien officials,
George O'Brien, Jr., and MacKnight,,went to several of these customers to persuade
them to accept delivery. On these occasions Williams' trucks were at the customer's
premises ready to be unloaded.
I proceed first to a consideration of the Union's argument that Williams' contract
calls for the performance of struck work.` The Board has in several cases adopted
the doctrine declared first by the court in the Ebasco case,2 that an employer loses
his neutrality in a dispute between a union and another employer by performing
with his employees the work of the strike-bound employer, which, but for-the strike,
would have been performed by the latter's employees. Having abandoned his neu-
trality, the employer performing this struck work is regarded as an ally of the em-
ployer primarily involved in the dispute and, like that employer, is not shielded
by Section 8(b) (4) -of the Act from the Union's strike action?
The doctrine does not mean that any work of a strike-bound employer performed
by the employees of another employer is struck work constituting-both employers
allies, even where the work accomplished after the strike began is work which
previously had been performed by the striking employees. In Highway Truckdrivers
& Helpers, Local No. 107, International ,Brotherhood of,Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent (Riss &- Company,` Inc.), 130
NLRB 943, the work in question had been contracted by one employer to another
before the strike, but its performance did not begin until after the start of the strike.
The Board nevertheless -held such work not to be struck work within the special
meaning of that term, basing this construction on the fact that-the, work contracted
for before the strike was the cause and not the result of the dispute between the union
and,.the primary employer. This definition of struck work had earlier been annroved
by the Board in another, case, International Longshoremen '& Warehousemen's Union,
and Local No. 13, International Longshoremen & Warehousemen's Union (Catalina
Island Siphtseeine Lines), 124 NLRB 811. where the Board adopted the Trial Exam-
iner's distinction between work which-is the cause and not the result of'a labor dispute.
7 Dands v Metropolitan Federation of. Architretr -Rnaircerc, Chemists and, Technicians,
Local 241 (Ebasco Services, Ine ), 75 F Supp. 672 (D C.,N Y.) -
8 See Local 28 , International Organization of Masters, Mates and Pilots, AFL-CIO,
et al. (Ingrain Barge Company), 136 NLRB 1175, 1187, 1,188 In United Steelworkers
of America, AFL-CIO; ( Tennessee Coal d Iron Division of the-United States Steel Cor-
poration), 127 NLRB'821, the Roard'descrihed the ally rule, as follows:
If a third' party employer engages 'in conduct which is inconsistent with his pro-
fessed neutrality in the dispute such as performing the farmed-out struck work- of
the primary employer, it'may be properly assumed that,.by knowingly engaging in
such conduct, the third. party 'employer 'had abandoned his "neutral" status, and laid
himself open to economic, pressure by the Union. [Citing Ebasco and the court's
decision in the Royal Typewriter case, 228 F. 2d 553 (C.A. 2).]
BREWERY WORKERS UNION NO. 8, ETC. 743
If the finding were permitted that O'Brien had a contract with Williams before mid-
night, February 28, when the strike started, I would, in accordance with the fore-
going precedents,. necessarily .conclude that the trucking -work begun by Williams
on March 4 did not make it O'Brien's ally. -The evidence, however, is to the contrary.
There was no binding contract earlier than March 1, and conceivably, not until the
signing of the contract several days later. I am not persuaded that George O'Brien's
handshake with McDonald at an earlier time or his mental determinations produced
a contract before March 1. O'Brien's negotiations with the Union up to February 28
and his proposals as late as that date are wholly inconsistent with his insistence that
he was already committed to 'a contract with William. Doubtless, as he testified,
O'Brien was firmly. convinced that he would not secure the Union's acceptance of his
proposals and was certain that in the end Williams would obtain its. contract, but
this is not the equivalent of a legal obligation incurred before March 1 to turn the
delivery operation over to Williams. • '
I am, nevertheless, satisfied that the contract secured by Williams after the start
of the strike did not call for the performance of struck work. From the enunciation
of this concept and without variation thereafter struck work had been defined as -work
which but for the strike would have been performed. by the striking employees. As
I view the evidence, Williams would have received 'its contract even if there had
been no strike. I believe GeorgeiO'Brien's testimony that his company was seriously
concerned about its operating •losses•tand had for this reason considered contracting
to professional truckers and warehousemen the responsibility for the performance
of these operations. This was not a new,experience. or. a radical departure from
O'Brien's past methods. , As a distributor for breweries other than Carling, O'Brien
from 1933 to 1945 had conducted' its delivery and warehousing work by' contract
with other companies.' The negotiations with McDonald for reversion to these former
practices were not in contemplation of the Union's strike during which' Williams and
Burlington would assist O'Brien for its duration? On .the contrary, the negotiations
with McDonald looked toward and culminated in a more enduring arrangement for
a fixed term of 2 years. Of course there was a possibility during these negotiations
and even until the very end that the Union would get,its contract and that O'Brien's
employees, rather than Williams' and Burlington's, would continue to do the ,trucking
and warehousing. This, however, does not alter the fact that O'Brien at the same
time was seriously negotiating with McDonald and that the agreement they reached
came about because O'Brien was able to make economically suitable,tezms with him
but could not do so, with the Union. The resultant contracts witli Williams and
Burlington would have been made for this reason whether the Union had called its
strike or not. • . ,
Because I do not find that the delivery work performed by Williams' employees
for O'Brien is work 'which,' but for 'the- strike, would have been performed by the
strikers, I reject the Union's contention that Williams has performed struck work for
O'Brien and thereby became-O'Brien's ally'in its dispute with the Union.
Nor do I accord merit to the Union's contention that Williams' operations are so
integrated' with O'Brien as to constitute them allies-in the dispute with the Union.
Unquestionably, 'str`ong' and *numerdus elements of integration exist as shown by
the earlier factual recital in this decision. But they are not sufficient td make Williams
O'Brien's ally as that term is understood by the Board. In its Tennessee Coal & Iron
decision, supra,, the Board declared: '
In the -process of decisional interpretation of Section 8(b)'(4) (A) the Board
has developed two tests for' ascertaining the existence of "ally" relationship
between the employers involved in the dispute. Thus, the Board has held that
when the.primary and secondary employers, although separate legal entities, are
commonly owned or controlled, or are engaged in-closely integrated operations,
they would be regarded, under certain -circumstances, as a single, employer under
the Act and hence "allies". in,, and parties to, a union's dispute with the primary
, . -employer.
The necessity that *the- integration, between employers be so close as to' permit
them to be regarded "iirider certain circumstances" as a single employer forecloses
any possibility in.this case that O'Brien and Williams are allies'in the former's dispute
with the Union'.' I can conceive of no circumstances in this case in which they could
•In this particular respect the instant'case differs from the facts in International
Union of 'United Brewers,, Flour, Cereal, Soft Drink and Distillery'Workera of America,
AFL-CIO, et al. (Adolph Coors Company), 121 NLRB 271, where the Board-held that
an 'employer became the ally of another strike-bound employer who in anticipation`of the
strike had arranged for its assistance for the duration of the strike.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be regarded as a single employer . Neither has any financial interest in the other, nor
is there any significant element of , control by one company over the other either
potentially or in practice . While their operations are jointly, in furtherance of
O'Brien 's obligations to carry out the terms of its franchise from Carling , this fact
plus all the other enumerated circumstances demonstrating their close ties are not
enough under any case precedents to establish them a single employer . The circum-
stances of this case are not much different from those in the Riss case , supra, where
the Board briefly dismissed the allied defense asserted there to an allegation that
Section 8(b)(4)(i ) and (ii ) (B) had been violated with the terse observation that it
found no "evidence that Riss land C & T are commonly owned or controlled , so as to
constitute them allies ." That the existence of such facts is the Board 's sine qua non
for upholding an ally defense is evident from its refusal ,to adopt my conclusion in
the Intermediate Report in Local No . 24, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , et al. (A . C. E. Transportation
Co., Inc.), 120 NLRB 1103 , 1132. I had there reasoned that the Act's legislative
history and expressions by various Board members in earlier cases, as fully set forth
in the foregoing citation , indicated that an employer 's "concern" in the dispute by an-
other employer with a union could be sufficient to dispel that employer 's neutrality
in the dispute by another employer with a union without regard to factors of com-
mon ownership . The Board held otherwise , and reasoned that so long as the two
employers are independent contractors they may not be regarded as allies merely
because of elements of integration in their operations . I must, in this proceeding,
yield to the Board 's A. C. E. precedent , notwithstanding the Court's refusal to en-
force the Board 's order in that case reported, at 266 F . 2d 6754 (C.A.D.C.)
Having rejected the Union 's ally defenses , I find that Williams was a neutral in
the Union 's dispute with O 'Brien and that by following and picketing Williams'
trucks at the premises of O'Brien 's customers to induce Williams' employees to cease
working for their employer , the Union violated Section 8(b)(4)(i ) and (ii) (B) of
the Act.
Picketing by the Union at the Premises of O'Brien's Retail Customers
The allegation that the Union's pickets engaged in proscribed "consumer picketing"
by strike activities at customer entrances is supported by testimony of several witnesses
who claim to have seen the pickets at these locations carrying,strike- signs ,advertising
the nature of the strike with an appeal to the public not to buy Carling's products
delivered by Williams' trucks. This testimony is contradicted by the Union 's witnesses
who claim that ,the picketing was confined to areas as close to Williams' trucks as
possible with avoidance of picketing at store entrances.
Arthur L. McDermott, a Williams driver, testified that on April 10, 1963, he
attempted to make beer deliveries by truck to O'Brien customers 5 designated as
Macarrier's, Carr's Package Store, East Saugus Package Store, and Seville Package
Store. Following his truck to each of these customers were automobiles transporting
strikers. When the truck parked at or near the stores the automobiles parked
nearby. At Macarrier's he observed the strikers walking up and down the sidewalk
in front of the entrance with signs in effect proclaiming the strike by the Union
against O'Brien and that Williams was transporting O'Brien's merchandise. He also
observed leaflet distribution to passing persons. McDermott was delayed by the
presence of -another truck unloading at Macarrier's and, after. speaking to, the. store
clerk, left for another destination. As he departed he saw that the picketing of the
store continued. Some of the strikers entered automobiles which followed his truck
to the next stop. After a delivery he returned to Macarrier's and parked the truck
on the street onposite the store entrance. The, automobiles following,him parked
behind the truck. Upon arrival McDermott saw pickets in the store speaking to a
person who he was informed was the assistant manager. At this point the assistant
manager waved to him and indicated the delivery would not be accepted. McDermott
crossed the street to speak with him and was informed the store did not, by accepting
the delivery, wish'to risk losing the business of G.E. (presumably General Electric)
employees: McDermott's explanations were unavailing and the delivery was refused.
McDermott, proceeded from Macarrier's to Carr's Package-Store where he drove
the tnick to the rear delivery entrance. Delivery was refused by the 'store owner.
Thereupon McDermott, accompanied by O'Brien Vice Presidents MacKnicht and
-George O'Brien, Jr., entered the store to speak to the owner. McDermott observed
8 to 10 pickets walking in front of the entrance about 8 to 12 feet away with signs
c All retail business establishments mentioned in subsequent recitals are O'Brien's
customers
BREWERY WORKERS UNION NO. 8, ETC. 745
some of which advertised the strike and others urged the beer consuming public
not to purchase Carling's products delivered for O'Brien by Williams. The delivery
to Carr's was not accepted.
McDermott next drove to East Saugus Package Store and parked across the street
from .the entrance. The automobiles following him parked next to the truck.
McDermott's helper and Vice President MacKnight spoke to the store manager
who directed McDermott to a loading platform to make the delivery. While his
truck was parked across the street from the store pickets paraded around it. Some
strikers went to the store but did not picket the entrance. Two men, however, were
seen by McDermott standing, at the store entrance holding up strike signs. As
McDermott backed the truck into the loading area the manager told him the delivery
would not be accepted and to back out.
From the East Saugus Package Store McDermott went to Seville Package Store and
drove the truck to a loading dock at the side of the building. He was informed by
the manager delivery would be accepted and unloaded half the order. He was
thereupon told the delivery would not be accepted. As, he was unloading he observed
three to five men picketing the store entrance with strike signs. Although another
striker was carrying leaflets, McDermott did not see any handed out.
Vice President'George O'Brien, Jr., testified that on April 10, 1963, he had been
present at Carr's when McDermott had tried to make a delivery. He had then ob-
served about 12 strikers who had followed the truck in automobiles. At least two of
them carried strike signs and walked in front of the store entrance. Others distributed
leaflets in the area. He was also at the East Saugus and Seville Package Stores when
McDermott came there on April 10 to deliver beer. At East Saugus he saw two
to four pickets with one carrying a strike sign in front of the store entrance. At
Seville he saw a-picket with a sign at the customer entrance with leaflet distribution
down the street by another.
Joseph Mangiacotti, Jr., also a Williams driver, testified that on April 19, 1963,
he drove his truck to Stone's Liquor Store. En route he was followed by an auto-
mobile with two passengers. Upon arrival hechecked with the store owner about
the place where delivery was to be made. Upon emerging from the store he observed
one man walking back and forth in front of the store entrance carrying a sign
advertising the strike against O'Brien and that deliveries were being made by Williams.
Another was distributing leaflets at the same location. These leaflets, addressed to the
beer consuming public, contained an appeal by the Union not to buy Carling's
products because of the strike against O'Brien and stated that Williams was delivering
with its employees the products which O'Brien's striking employees would have
delivered but for the strike. Both men continued these activities during the 3ih hours
he was at Stone's making the delivery.
On April 29, 1963, Mangiacotti arrived at Paramount Liquor Store to make a beer
delivery. Upon arrival he observed about four men standing and conversing at the
street corner (not necessarily near the store). One held a strike sign, but it was not
held aloft. Some had leaflets, but Mangiacotti did not see any distributed. Delivery
was not accepted at Paramount. A person' who was either a clerk, or the manager
stated the Union had spoken to him and he wanted no trouble.
On May 6, 1963, Maneiacotti arrived at Blanchard's to make a-beer delivery. He
parked his truck in a loading zone in front of the store and went inside for instructions.
Then be saw an automobile down the street discharging several -persons who started
to but did not actually picket the ,truck. At this point the person in the store from
whom Mangiacotti had sought instructions informed him he would not accept the
delivery because of the presence of the pickets, 'some of whom carried strike signs
of the kind previously described. Mangiacotti estimated the truck was parked
5 or 6 feet from the customer entrance to the store.
William R. Sweeney had worked' for Williams as a driver until July 3, 1963.
T-Te testified that on Anril 17,•1963, he arrived at the aforementioned Carr's Package
Store with a beer delivery. After making the delivery and as he was preparing to
leave he observed four men carrying strike signs and distributing leaflets of the kind
previously described, walking back and forth in front of the store. Sweeney drove
a short distance down the street, parked his truck, and entered a diner. From
there he caw a continuation of the picketing until the pickets entered the store.
Fifteen minutes later they,came. out and- resumed their picketing which continued
as he drove his truck from the diner.
Sweeney further related that on April 22, 1963, he arrived with a load- of beer
at Corey Hill Liquor. As he drove the truck to the rear of the store he observed
that two or three men began to parade with signs in front of the store. When he
drove away, they were still there. He saw no union identification on the sign. The
pickets were recognized,by.him as men he had previously seen on* the picket line
at O'Brien's premises.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From Corey Hill, Sweeney proceeded to Newton Village Package Store and then to
Village Beverage Store. He claims to have observed picketing with signs and leaflet
distribution in 'front of these stores by the same pickets as' before. . ,
John H. Van Dyke, O'Brien's assistant sales manager, testified that he- was at
'Carr's in the afternoon of April 17. Upon arrival at the store he was informed
by the owner that a beer delivery had just been made. He saw four former O'Brien
drivers, whom he identified by name, picketing in front of'the store. Two carried
the aforedescribed Union's strike signs. One carried leaflets which the store owner
stated had been distributed to customers. These activities' continued for about a half
hour while Van Dyke was in the store. They were still going on when he left.
Charles J. Malloy, a Williams' driver, testified that ori_•March 25 he drove his
truck to Al Russell's Cafe to make a beer delivery. He parked the truck in: front
of the establishment and sent his helper to find out about acce'p'tance of the delivery.
The helper returned with information that it was being refused because persons
had been seen walking in front of the cafe with placards. Malloy had not seen
picketing upon his arrival. But soon thereafter an automobile arrived and persons
got out with signs and started to picket in front of the cafe and around the truck.
One person distributed leaflets. The signs indicated that O'Brien's employees were
,on strike and that Williams was performing the struck work which involved dis-
tribution of Carling's products. At the same time the picketing occurred, the
truck was parked directly in front of the cafe's entrance near, the curb.
On April 10 Malloy drove to Giles Package Store, High Street Beverage, Stagliano's
Package Store, Hillside Beverage, and Star Liquor Store to make beer deliveries.
He was followed to each of these locations by an automobile containing strikers.
At Giles he parked the truck in a driveway to make delivery at the rear of the store.
Looking through the front store window he saw picketing with the same type sign
he had seen displayed at Russell's. A picket was also stationed at the driveway
entrance. At High Street Beverage he made his delivery at the rear which he ap-
proached from a side street. He observed picketing with the same signs around his
truck and at the store front together with leaflet distribution. At Stagliano's he
proceeded through an alley to the rear of the store to make the delivery. He saw
picketing at the entrance to the driveway and in front of the store. At the same
time an automobile was driven by the Union's business agent, Gilman, around the
block and passed the store. Through its loudspeakers Gilman was urging people
on the street not to purchase Carling's products because of the: strike. At Hillside
Beverage, Malloy saw picketing in front of the store with the same sign as before.
At Star Liquor Store he pulled his truck into a lot behind the store. He was unable
to see from the point where he was unloading whether there was any picketing. As
he departed from this place the strikers got in their car and continued to follow him.
Thomas E. Owens, the Union's corresponding secretary and business agent, testi-
fied he had instructed the strikers to picket only in the vicinity of the Williams trucks
and to hand out leaflets. He claimed he made "periodic, spasmodic checks" to see
whether instructions were being obeyed by'the strikers. By this he meant that he
might have been with the pickets 2 or 3 hours on a single day and then not at all
for another 3 or 4 days. These checks, from the third week of March until the
strike was enjoined on May 20, 1963, were made from two to five times. Each
time he observed the picketing it was conducted near the tricks with' signs containing
the following legend:
EMPLOYEES OF O'BRIEN, DIST. CO. INC.,
DISTRIBUTORS OF CARLING'S BEER & ALE
ARE ON STRIKE
THESE PRODUCTS ARE NOW BEING DELIVERED
BY WILLIAMS TRUCKING, CO. WHICH
IS PERFORMING' STRUCK' WORK FOR O'BRIEN'S
SUPPORT BREWERY WORKERS UNION -
LOCAL 8 A. F. `of L. C. I. O.
Leaflets urging, consumers not to buy ,Carling's, products were distributed by the
pickets away'.'from the trucks and not in 'front of O'Bnen's' customers. Owens
acknowledged that there was seven or eight groups of pickets which simultaneously
followed Williams' trucks. He claimed no one was designated"fo be in charge
of any of these groups.
Testifying for the Union, Timothy.O'Corino'r, Thomas Walsh, and Ernest Prenkle
(misspelled Prpeckle,in the transcript'of testimony), in effect; denied the testimony
of the foregoing General Counsel' s witnesses concerning picketing 'by strikers at or
in front of the premises of O'Brien's customer's.' These 'three Union witnesses are
BREWERY WORKERS UNION. NO. 8, ETC. 747
all striking drivers. - In addition, O'Connor is a member of the Union's Strike Com-
mittee and, admittedly, was designated by the Union's steward to be in charge of
groups of strikers with authority to station them where he desired in order to picket.
In substance , these witnesses claimed that at the various stores mentioned 'by the
General Counsel 's witnesses where 'the picketing occurred as described by them,
there was either no picketing at all or, if any,, it was confined to areas proximate
to where the Williams trucks were parked whether on the street or in.a driveway
leading to a store loading area. According to them no picketing occurred in front
of a store entrance.
I am satisfied that the strikers did picket at or in front of store entrances. I do
not rely in making this finding on Sweeney 's testimony because of its unreliability.
He is nearsighted and confused concerning what he saw. I have serious reserva-
tions as to how accurately he recalled what little he may have seen . I do rely on
McDermott 's, Mangiacotti 's, Malloy 's, Van Dyke 's, and O 'Brien 's accounts of the
picketing they observed and reject the denials concerning such picketing by the
Union's witnesses.
Apart from the favorable demeanor impression I formed of the General Coun-
sel's credited witnesses , I am highly dubious about the reliability of the opposing
testimony . In large measure Owens and O 'Connor appeared to be reasoning that the
picketing of stores did not take place as described because it would have contravened
the Union's instructions to the strikers, or because when they were present at the
various stores they did not see such picketing , or, because there was no need to
picket for assurance • had been given by . certain store owners that they would not
accept delivery of O'Brien's products by Williams'. trucks. This is exceedingly
fallible reasoning which cannot prevail in the face of the positive testimony of the
General Counsel's witnesses that the picketing of stores in fact occurred. Walsh
and Prenkle were more direct in their denials of picketing at particular stores. I
am nevertheless not convinced by their contradictions of the General Counsel's
witnesses that there was no picketing of these stores.
In large measure the denials of customers picketing are weakened by the abun-
dant evidence showing that the purpose of the strike activity at customer establish-
ments when the Williams trucks arrived was really to sever O'Brien's business rela-
tions with the customers by causing them to refuse acceptance of deliveries. That
this was the basic objective of all the activity is, demonstrated by the admitted as-
surances sought and assertedly obtained from Macarrier's and Carr's Package Store
as related by O'Conner. The appeals to consumers in the Union's leaflets distributed
near the stores and the signs carried by the pickets when the trucks appeared aimed
at the same result. The picketing of trucks was in my view merely an attempt to
camouflage the true character of the Union's real objective and to provide a colorable
claim of legality for the picketing . I do not believe the trucks were picketed just
to persuade Williams' drivers to cease working for their employer. I am satisfied
this was done, along with store front picketing, essentially for impact upon beer
consumers and ultimately upon store owners . I am particularly influenced in so
finding by O'Connor's bland admission that on April 22 he was at the Newton
Village Package Store when a Williams truck arrived with a delivery and that he
had started to picket the truck but he had stopped because, as testified,
the delivery entrance was in a depression , one walks down in and coming back
walks up hill'again, and there nobody could see us; so I discontinued picketing
the truck at that location. _
He explained that it was not to his advantage to picket a truck if this activity was
not exposed to the view of the "consuming public."
As shown , the Union 's intention was to , influence the store owners by effective
strike action. The Union was aware that pickets at some of the customers' store
fronts would produce a cooperative refusal by owners to accept Carling's products
from Williams trucks. In at least one case, Macarrier's, the store owner had condi-
tioned his refusal upon the presence of pickets who, according to O'Connor , sat in an
automobile near the store even though a•Williams truck was-not-present. -This alone
was enough to satisfy O'Connor that a delivery would be refused by Macarrier's.
If such -was the Union strategy in the strike, 1 am persuaded that the Union=was pre-
pared to and did place its pickets in front of store entrances particularly where, in
the face of the known strike, the store owners were-willing to accept deliveries. At
Seville Package Store,half the delivery had already been unloaded before the manager
decided not to accept it. This late change of heart must be attributed to some action
which started after the unloading•commenced, otherwise the delivery .would.have been
refused immediately , and before so much time and labor had been needlessly ex-
pended. Had the picketing at Seville been confined to the Williams truck' and con-
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted in such manner as to indicate to the neutral retail owner that the Union
was not seeking his involvement, a step which the Union could have taken but did
not, no apparent reason would have existed for Seville's belated refusal to accept the
delivery already half made. I am convinced, as McDermott testified, this decision
was spurred by the picketing, not of the truck,'but of the store entrance.
I find that the Union picketing the entrance to the stores of O'Brien's customers,
and, as disclosed by the evidence, engaged in such picketing to cause consumers to
boycott Carling's products sold by O'Brien .to these customers. The Board consistently
holds that consumer picketing in front of a secondary establishmnet,-here the premises
of the neutral customers, constitutes restraint and coercion within the meaning of
Section 8(b) (4) (ii); and, when it has for an object forcing or requiring any person
to cease selling or handling the products of any other producer or processor, the
picketing violates Section 8(b)(4)(ii)(B).6 By its picketing the Union sought to
persuade customers of the picketed stores not to purchase the Carling products sold
exclusively by O'Brien to the stores. The natural and foreseeable result of the
picketing was to force or require the store owners to discontinue their purchases of
,these products from O'Brien, and in fact, as .the record shows, this was the frequent
result. That this result was intended by the Union is readily discernible from the
above-recited evidence. Accordingly, I find that the consumer picketing in which
the Union engaged was violative of Section 8(b)(4)(ii)(B) of the Act.
That Business Agent Owens, as he testified. may have issued instructions to the
strikers not to picket the stores does not absolve the Union from responsibility for
picketing at these locations. I am satisfied that .the picketing was conducted under
the direction of responsible group leaders and agents of the Union such as O'Connor,
despite Owens' claim that the groups were leaderless. I am, moreover, satisfied from
the evidence of Business Agent Gilman's presence at the scene of store picketing
(whether his sound apparatus was functioning or not is immaterial) that he knew
about the nature of the picketing and that his failure to disapprove constituted the
Union's ratification or adoption of the picketing.'
I would find that the Union had engaged in proscribed consumer picketing even if
this activity had been confined to areas close to trucks, particularly in those situations
where the trucks were parked at or near the entrances to the stores and the pickets
were clearly visible to consumers. I have found that Williams was a neutral employer
and that picketing of its trucks was violative of Section 8(b) (4) (i) and (ii) (B) of the
Act. In this circumstance, it is immaterial that Moore-Drydock standards for lawful
ambulatory situs picketing may have been observed by the Union. The picketing was
notwithstanding unlawful. Where the picketing at or near the trucks was sufficiently
close, as I find it was in most cases, to the entrances of O'Brien's customers' stores,
the effect thereof coupled with the message on the picket signs and the leaflets
distributed to passersby was the same as if the picketing was directly at the store
entrgnces. It naturally and foreseeably had the same coercive and restraining effect,
and was, as shown, for the same objective. It was therefore violative of Sec-
tion 8(b)(4)(ii)(B).
The Board does not regard picketing of a secondary employer's premises as per se
inducement or encouragement of employees of neutrals within the meaning of Section
8(b) (4) (i) (B) of the Act. and holds that whether in any given case picketing is in-
tended or calculated to induce or encourage employees of secondary- employees to
engage in a working stoppage or refusal to perform services is determined by all the
evidence in that particular case and not by an a priori assumption 7 While the facts in
the dnstant case do not show that ,the Union invoked all the safeguards employed in
the picketing of store customer entrances in the Tree Fruits case to assure the em-
plovees of the picketed stores that the picketing was not intended to affect them. I
would be here inclined to find that the nicketing was not intended to induce a cessa-
tion of work by these employees. that they could not reasonably have construed the
picketing to have intended that result. or that it had such effect uron'them T reed
not make such finding. They were not the only employees involved. 1 The picketing
whether at the trucks or at the store fronts, was intended to. at least in part, and could
reasonably have been construed by Williams' drivers as inducement of them to sense
working for their employer particularly in view of the Union's admission concerning
its objectives and the evidence of direct appeals to, and pressure on, the drivers when
0LoeaZ 4$5. International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
HeTnerc of America (Colony Liquor Distributors, Inc .. CoZonial Carriers, Inc), 140
NLRB 1097.
7 Fruits & Vegetable Packers & Warehousemen , Local 760. and Joint Council No. 2R of
the International Brotherhood of Teamsters , etc. (Tree Fruits Labor Relations Com-
mittee, Inc) , 132 NLRB 1172, 1176.
BREWERY WORKERS UNION NO. 8, ETC., 7,49
making deliveries to abandon this work . - Accordingly, for this reason alone, I find
that the picketing at the store entrances , like picketing at the trucks, was also violative
of Section 8(b) (4) (i ) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Union set forth in section III , above , occurring in connection
with the operations of O'Brien and Williams described in section 1, above, 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 thereof.
V. THE REMEDY
Having found ,that the Union has violated Section 8(b) (4) (i) and (ii) (B) of the
Act, I shall recommend that it cease and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Bert P. Williams, Inc., and O'Brien Distributing Co., Inc., are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Brewery Workers Union No. 8, International Union of United Brewery, Flour,
Cereal, Soft Drink & Distillery Workers of America, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By picketing Williams' trucks in the course of their deliveries for O'Brien and
by its consumer picketing of retail establishments to which O 'Brien sells products
delivered by Williams, all of said picketing being in furtherance of a dispute _by the
Union with O'Brien, the Union has engaged in unfair labor practices within the mean-
ing of Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in .this proceeding, I recommend that Brewery Workers Union No. 8,
International Union of United Brewery, Flour, Cereal, Soft Drink & Distillery Work-
ers of America, AFL-CIO, Roxbury, Massachusetts, its officers, agents, representa-
tives, successors, and assigns, shall: -
1. Cease and desist from:
(a) Engaging in, inducing , or encouraging employees of Bert P. Williams, Inc.,
to engage in a strike, or a refusal in the course of their employment to transport
or handle goods, or to perform services with the object of compelling Bert P.
Williams, Inc., to cease handling, transporting, or otherwise dealing in the products
of, and to cease doing business with, O'Brien Distributing Co., Inc.
(b) Threatening , coercing, or restraining any retail liquor store , or place of busi-
ness, by picketing where an object thereof is to force or require said stores, or places
of business , to cease using, selling , handling, or otherwise dealing in products sold
by O'Brien Distributing Co., Inc., or to cease doing business with this Company.
2. Take the following affirmative action , which it is found will effectuate the
policies of the Act:
(a) Post, at its offices and meeting halls, copies of the attached notice marked
"Appendix." 8 Copies of said notice, to be furnished by the Regional Director for
Region 1, shall, after being duly signed by an authorized representative of the
Union, be posted by it immediately upon receipt thereof, and be maintained for a
period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its members are customarily posted . Reasonable steps shall be
taken by the Union to insure that said notices are not altered, defaced, or covered
by any other material.
8In the event that this Recommended Order be 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 be en-
forced 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."
750 DECISIONS OF NAPIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director' for Region 1, in writing , within 20 days from:
the date of the receipt of this Decision , what steps the Union has taken to comply
herewith .9
It is further recommended that unless the Union , shall, within 20 days from the
receipt of this Decision , notify said Regional Director,` in writing , that it will comply,
with the foregoing recommendations , the National .Labor Relations Board issue an
Order requiring it to take the aforesaid action.
01n the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify the Regional Director for Region 1, in writing, within
10 days from the date of receipt of this Order, what steps the Union has taken to comply
herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF BREWERY WORKERS UNION, No 8, INTERNATIONAL
UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK & DISTILLERY WORKERS
OF AMERICA, AFL-CIO
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, we hereby notify you that:
WE WILL NOT engage in , or induce , or encourage the employees of Bert P.
Williams, Inc., to engage in a strike , or a refusal in the course of employment
for said employer to transport , handle goods , or to perform any services where
an object thereof is to force or require Bert P . Williams, Inc., to cease handling,
transporting , or otherwise dealing in the products of, or to cease doing business
with , O'Brien Distributing Co., Inc.
WE WILL NOT threaten , coerce, or restrain any retail store, or place of
business , by picketing where an object thereof is to force, or require, said stores,
or places of business, to cease using, selling , handling, or otherwise dealing in the
products sold to them by O'Brien Distributing Co., Inc., or to cease doing busi-
ness with this Company.
BREWERY WORKERS UNION No. 8, INTERNATIONAL UNION
OF UNITED BREWERY, FLOUR , CEREAL, SOFT DRINK &
DISTILLERY WORKERS OF AMERICA , AFL--CIO,
Labor Organization.
Dated------------------- By---------------------------------------- --
(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.
Employees may communicate directly with the Board 's Regional Office, Boston
Five Cents Savings Bank Building , 24 School Street, Boston , Massachusetts, Tele-
phone No. 523-8100, if they have any question concerning this notice or compliance
with its provisions.
Local Union No. 181, International Union of Operating Engi-
neers, AFL-CIO, and its Agents Montie Bashion, Harold Roach
and Joe Caliper [Nicholson Construction Company and Bab-
cock & Wilcox Company] and Thomas Meeks, Jr. Case No.
9-CB-1141. August 31, 1964
DECISION AND ORDER
On May 11, 1964, Trial Examiner Fannie M. Boyls issued her De-
cision in the above-entitled proceeding, finding that the Respondents
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed, as set forth in the
148 NLRB No. 77.