Chauffeurs, Teamsters, Warehousemen & Helpers

National Labor Relations Board - Board Decisions

Aug 7, 1953

106 N.L.R.B. 629 (N.L.R.B. 1953)

CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 629
APPENDIX
Professional employees: Project surgeon, assistant project
surgeon, registered nurses.
Confidential employees: File clerk and senior clerk in the
labor relations department, secretary to labor relations man-
ager , general clerk for director of plant services, secretary to
project engineer, secretary to assistant project engineer,
secretary to general construction superintendent, secretary to
wage, hour, and salary division, secretary to wage, hour, and
salary supervisor, conference reporter, secretary to assistant
general construction superintendent (mechanical), executive
secretary to project manager, secretary to assistant deputy
project manager (engineering), executive secretary to assistant
deputy project manager (supply), secretary to director of plant
services, secretary to general staff administrator, executive
secretary to assistant deputy project manager (construction),
executive secretary to assistant deputy project manager
(comptroller), security investigator, stenographer acting as
secretary to assistant project comptroller, stenographer acting
as secretary to project engineer, stenographer acting as
secretary to general staff coordinator, stenographer acting as
secretary to labor relations manager, and stenographer acting
as secretary to wage, hour, and salary division supervisor.
Supervisors: Chief telephone operator, assistant chiefs in
time department, machine supervisor'in IBM department, key
punch operator supervisor in IBM department, chief material
checker in the supply department, paymaster assistants in the
time section of the accounting department, supervisor in
personnel services, assistant chief accountant, assistant in-
ternal auditor, chief of mail unit, general clerk in the plan
room, coordinators (distribution in the supply department), and
assistant chief in the IBM department.
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS
LOCAL UNION NO. 135, affiliated with INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, AFL and HOOSIER
PETROLEUM COMPANY, INC. Case No. 35-CC-22. August
7, 1953
DECISION AND ORDER
On April 8, 1953, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had not engaged in the unfair labor
practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety , as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the
General Counsel and the charging party, Hoosier Petroleum
106 NLRB No. 111.
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Inc., filed exceptions to the Intermediate Report
and supporting briefs. t
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 Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer only insofar as they are consistent with our decision.
We find, in disagreement with the Trial Examiner, that the
Respondent engaged in picketing activities prohibited by Sec-
tion 8 (b) (4) (A) and (B) of the Act. In reaching his contrary
conclusion, the Trial Examiner was of the opinion that the
picketing was directed against a primary employer with whom
the Respondent had a labor dispute at his place of business and
that therefore the picketing was protected. In support of this
conclusion, the Trial Examiner made two critical findings,
namely: (1) that Floyd, the disputing employer, was not an
independent contractor but that his business was an integral
part of the operations of Hoosier Pete, the alleged secondary
employer, so that Hoosier Pete was a coemployer of Floyd's
drivers involved in the dispute; and (2) even if Floyd was an
independent contractor, the picketing occurred in front of
Hoosier Pete's filling station, which was also at all material
times Floyd's place of business.
The General Counsel and Hoosier Pete contend, in substance,
that the picketing violated Section 8 (b) (4) (A) and (B) because,
although the Respondent had a labor dispute with Floyd, an
independent contractor, it picketed Hoosier Pete's filling
station both before and after the removal of Floyd's tractors
from these premises in a manner contrary to the standards
enunciated in the Board's Moore Drydock decision z as to put
pressure on Hoosier Pete, a neutral to the dispute, to cease
doing business with Floyd, the ultimate object being to force
Floyd to recognize and bargain with the Respondent, an un-
certified union.
Floyd's Independent Contractor Status
Before considering the nature of the Respondent's picketing
activities, it may be well to determine first the relationship
between Floyd and Hoosier Pete.
As discussed in the Intermediate Report, Floyd is the owner of
seven tractors which, fora number of years, he has used to haul
gas and oil for Hoosier Pete 8 in the latter's tank trailers to
IAs the record , exceptions , and briefs adequately present the issues and positions of the
parties, the request of Hoosier Petroleum Company, Inc., for oral argument is denied.
2 Moore Drydock Company (Sailors Union of the Pacific, AFL), 92 NLRB 547.
We agree with the Trial Examiner, that, for the purpose of this proceeding, Hoosier Pete
and Vortex Petroleum Company constitute a single employer because of common officers and
stock ownership. Therefore, to simplify discussion of the issues, we shall not make separate
reference to Vortex which technically owns the trailers and with which Floyd is under contract.
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 631
filling stations owned and operated by Hoosier Pete and in-
dependent dealers. Under their latest agreement , which was
in effect at the time of the events herein, Floyd leased his
tractors to Hoosier Pete for such exclusive use and agreed,
among other things, to furnish the drivers, keep the tractors
in good operating condition, and pay the operating costs. As
compensation for furnishing the tractors and services, Hoosier
Pete agreed to pay Floyd a percentage of established Inter-
state Commerce Commission freight rates.
The Trial Examiner found that Floyd was not an independent
contractor because, as he viewed his contractual arrangements
with Hoosier Pete, he had lost all authority and control over his
tractors and had, in effect, become the equivalent of a super-
intendent of Hoosier Pete's transportation division. In so find-
ing, the Trial Examiner relied on the fact that Floyd hauls
exclusively for Hoosier Pete from whom he and his drivers
receive delivery orders.
However, we are not persuaded that this factor alone neces-
sarily precludes finding an independent contractor relationship.
The Supreme Court, applying in the Greyvan case * the broader
test of the meaning of "employee" based on the purposes of the
Social Security Act, found that the truckmen there in question,
though hauling exclusively for Greyvan, were independent con-
tractors. Moreover, the delivery orders referred to above that
Hoosier Pete issues to Floyd and his drivers relate simply
to the result intended to be accomplished and do not reflect such
a right of control by Hoosier Pete over the manner or means
of Floyd's performance of his contract as is required by the
applicable common law right-of-control tests to establish an
employer-employee relationship.
On the other hand, the record is replete with uncontradicted
evidence establishing that Floyd is an independent contractor.
Thus, under the lease agreement , Floyd must furnish respon-
sible drivers, keep his tractors in good repair and operating
condition at his own expense, carry fire, theft, and collision
insurance, and pay all operating costs, and Hoosier Pete, in
turn, pays him a percentage of I.C.C. freight rates . 6 Concededly,
Floyd is the actual employer of the drivers, whom he hires,
fires, and disciplines, determines their rates of pay, pays their
wages, social security, and employment insurance, withholds
tax deductions and makes the required Federal and State re-
ports. He keeps his own payroll and business records at his
office at home, and bills Hoosier Pete for the trips made.
Significantly, Hoosier Pete has no financial interest in Floyd's
tractors, which carry the stenciled inscription denoting his
4Greyvan Lines, Inc. v. Harrison, reported sub nomine U . S. v. Silk, 331 U. S. 704. See also,
Swanson Brothers Logging Company, 71 NLRB 614.
5 Steinberg & Company, 78 NLRB 211; Oklahoma Trailer Convoy, Inc., 99 NLRB 1019.
6 Floyd also services Hoosier Pete 's trailers for which he is paid. Under an oral arrange-
ment Floyd and Hoosier Pete split between themselves the license fees for the tractors and
trailers.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ownership and that they are leased. Floyd also assigns drivers
to specified tractors, decides whether to drive one himself,
and determines the route and place where petroleum products
are to be obtained, depending upon their ultimate destination.
Lastly, the Respondent and the drivers recognize Floyd as their
employer; indeed, the Respondent requested recognition from
him and, upon Floyd's denial, filed a representation petition
alleging him to be the employer of the drivers.
The foregoing evidence establishes to our satisfaction that
Floyd is an independent contractor.' For this reason and the
fact that there is nothing in the record indicating that Hoosier
Pete possesses any control over Floyd's labor relations, 8 we
find, contrary to the Trial Examiner, that Hoosier Pete is
not a coemployer of Floyd's employees. Accordingly, we find
that Hoosier Pete is a neutral employer whom Section 8 (b) (4)
(A) and (B) is designed to protect from involvement in the
Respondent's labor dispute with Floyd. This brings us to the
next question whether the Respondent, by its picketing activities,
extended the dispute to Hoosier Pete.
The Respondent's Picketing Activities
It is undisputed that the ultimate objective of the Respondent's
picketing was to secure recognition from Floyd as the bargaining
representative of his employees. The General Counsel and
Hoosier Pete contend that the Respondent sought to achieve
this aim through economic pressure exerted on Hoosier Pete,
a neutral employer.
As discussed in the Intermediate Report, the Respondent
picketed in front of Hoosier Pete's filling station. Like the
Trial Examiner, we find that Floyd maintained a regular
place of business at these premises at least until he removed
his tractors and the trailers.' The pickets carried signs
bearing the legend "ON STRIKE" in bold printed type. Under-
neath and printed by hand on one line was the name "JESSE
FLOYD" and below it were the words "HAULERS FOR" and
on the next line in larger letters was the name "HOOSIER
PETE".
It appears from the Intermediate Report and testimony in
the record that pickets would hold up their signs, yell and
gesture to truckdrivers entering the gas station , and to drivers
standing at the gas pumps getting gas to draw their attention
to the picket signs; they would try to stop trucks about to
7Cf. Oklahoma Trailer Convoy, Inc., supra; EldonMiller, Inc., 103 NLRB 1627, A. E. Black-
lidge, 91 NLRB 222, and Nu-Car Carriers, Inc., 88 NLRB 75, enfd. 189 F. 2d 756 (C A. 3),
relied upon by the Trial Examiner, are plainly distinguishable on their facts.
8 Cf Swanson Brothers Logging Company, supra.
9In view of our determination herein with respect to the nature of the picketing , we find it
unnecessary to decide whether during the course of the picketing Floyd had abandoned the
filling station as his regular place of business.
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 633
enter the station and climb up on the fenders; they would tell
them that the station was unfair and on strike; they would
warn truckdrivers that their cards would be pulled if they
"gassed up"; a picket who made such a threat was, contrary
to the Trial Examiner's finding, identified as Ted Bennett; and
unidentified pickets on one occasion ran to the bulk plant area
behind the filling station proper and dissuaded a truckdriver
of a supplier of Hoosier Pete from unloading oil. There is
also evidence that, after speaking with the pickets, some of the
truckdrivers drove through the station without purchasing, gas
while others made their purchases.
It is clear from the foregoing that, if the wording and the
format of the picket signs did not alone reveal an intention to
convey the idea to Hoosier Pete's customers that Hoosier
Pete was directly involved in the Respondent's labor dispute
with Floyd, the pickets' conduct dispelled any such doubt.
Indeed, Nolan, the Respondent' s business agent in charge of
the picketing, admitted that he had instructed the pickets to
hold up the picket signs so that truckdrivers would read them
because good union people do not cross picket lines, and that
truckdrivers who had crossed the picket lines and bought gas
apologized for not seeing him before. It is significant that none
of these truckdrivers would have occasion to do business with
Floyd.
We therefore find, contrary to the Trial Examiner, that the
Respondent's picketing activities were not directed against
Floyd only but were deliberately intended to extend the area of
the dispute to neutral employers and thereby force Hoosier
Pete to cease doing business with Floyd and to force Floyd to
recognize the Respondent as the bargaining representative of
his employees."
The Trial Examiner nevertheless found that the picketing
was protected because Floyd maintained a regular place of
business on Hoosier Pete's premises. However, as in the case
of a labor dispute which has an ambulatory situs, such as that
present in the Moore Drydock case,'1 where, as here, the
primary employer has a regular place of business on the
premises of another employer, the competing rights of a
union to picket at the location of the labor dispute and of a
secondary employer to be free from picketing in a controversy
in which it is not directly involved cannot be absolute. It seems
not unreasonable to require in such a situation that the picket-
ing clearly disclose that the dispute is with the primary
employer. 12 Plainly, such a requirement does not curtail the
10 Cf. Richfield Oil Corporation (International Brotherhood of Boilermakers etc.), 95 NLRB
1191.
lMoore Drydock Company (Sailors' Union of the Pacific. AFL), 92 NLRB 547, standards
approved in N. L. R. B. v. Service Trade Chauffeurs etc., 191 F. 2d 65 and 199 F. 2d 709
(C. A. 2).
12Richfield Oil Corporation , supra.
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's right to publicize its dispute with the primary em-
ployer while at the same time it avoids unnecessary inter-
ference with the neutral employer's business.
As discussed above, the Respondent did not conduct its
picketing activities in a manner which clearly showed that
they were directed against Floyd and not Hoosier Pete whose
business , as a consequence , suffered . In sum, we find that the
Respondent, by its picketing activities , induced and encouraged
employees of Hoosier Pete and motor carriers to engage in
a strike or concerted refusal in the course of their employ-
ment to perform services or to use materials , with the object
of forcing or requiring Hoosier Pete to cease doing business
with Floyd , in violation of Section 8 (b) (4) (A ) of the Act, and
with the further object of forcing or requiring Floyd to recog-
nize or bargain with the Respondent, although the Respondent
was not certified as the representative of Floyd ' s employees
under the provisions of Section 9 of the Act, in violation of
Section 8 ( b) (4) (B).
The Effect of the Unfair Labor Practices upon Commerce
The activities of the Respondent , set forth above, occurring
in connection with the operations described in section I of the
Intermediate Report , have a close , intimate, and substantial
relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
The Remedy
Having found that the Respondent has engaged in certain un-
fair labor practices , we shall order it to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent , Chauffeurs , Teamsters , Warehousemen & Helpers
Local Union No. 135 , affiliated with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, AFL, its officers , representatives , agents, succes-
sors, and assigns, shall:
1. Cease and desist from inducing and encouraging the
employees of Hoosier Petroleum Company, Inc., motor car-
riers, or any other employer (other than Jesse G. Floyd), to
engage in a strike or a concerted refusal in the course of
their employment to use, manufacture , process, transport, or
otherwise handle or work on any goods, articles , materials,
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 635
or commodities, or to perform any services for their respec-
tive employers, where an object thereof is (a) to enforce or
require Hoosier Petroleum Company, Inc., motor carriers,
or any other employer or person to cease doing business with
Jesse G. Floyd; or (b) to force or require Jesse G. Floyd to
recognize or bargain with Chauffeurs, Teamsters, Warehouse-
men & Helpers Local Union No. 135, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, AFL, as the collective-bargaining
representative of his employees, unless and until such labor
organization has been. certified as such representative in
accordance with the provisions of Section 9 of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Post at its business office and meeting halls in Indian-
apolis, Indiana, copies of the notice attached hereto as an
appendix." Copies of such notice, to be furnished by the
Regional Director for the Ninth Region, shall, after being duly
signed by an official representative of the Respondent, be
poster by it immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for the Ninth Region in
writing, within ten(10) days from the date of this Order, as to
what steps the Respondent has taken to comply herewith.
Chairman Farmer and Member Styles took no part in the
consideration of the above Decision and Order.
13In the event this Order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur-
suant to a decree of the United States Court of Appeals , enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF CHAUFFEURS, TEAMSTERS,
WAREHOUSEMEN & HELPERS LOCAL UNION NO. 135,
AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS OF AMERICA, AFL
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
you that:
WE WILL NOT induce or encourage any employees of
Hoosier Petroleum Company, Inc., motor carriers, or
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other employer (other than Jesse G. Floyd), to engage in
a strike or concerted refusal inthe course of their employ-
ment to use, manufacture , process, transport , or otherwise
handle or work on any goods, articles, materials, or com-
modities, or to perform services for their respective em-
ployers, where an object thereof is (1) to force or require
Hoosier Petroleum Company, Inc., or any other employer
or person to cease doing business with Jesse G. Floyd; or
(2) to force or require Jesse G. Floydto recognize or bar-
gain with Chauffeurs, Teamsters, Warehousemen & Helpers
Local Union No. 135, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, AFL, as the representative of his employees,
unless and until certified as such representative inaccord-
ance with the provisions of Section 9 of the National Labor
Relations Act.
Chauffeurs, Teamsters, Warehousemen
& Helpers Local Union No. 135, affili-
ated with International Brotherhood of
Dated ................
Teamsters , Chauffeurs, Warehousemen
& Helpers of America, AFL,
Labor organization.
By ...................................................
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date hereof, and must not be altered, defaced, or
covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed November 20, 1952, by Hoosier Petroleum Company. Inc.. herein
called Hoosier Pete, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint dated January
21, 1953, against Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, AFL, herein called the Respondent, Union, or Local 135. The complaint alleged
that the Respondent had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (b) (4) (A) and (B) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the
charge, and notice of hearing were duly served upon the Respondent and the charging party.
With respect to the unfair labor practices , the complaint alleged that , since on or about
November 17, 1952, the Union had engaged in, and by orders, rules, instructions, directions,
and appeals , had induced and encouraged the employees of Hoosier Pete, the employees of
various motor freight carriers, and the employees of other employers to engage in strikes or
concerted refusal , in the course of their employment , to use, process , transport , or other-
wise handle or work on goods , articles , materials , or commodities or to perform services,
an object thereof being to force the aforesaid employers to cease doing business with Jesse
IThe General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the General Counsel, and the National Labor Relations Board as the Board.
CHAUFFEURS. TEAMSTERS. WAREHOUSEMEN & HELPERS 637
G. Floyd, an individual, in violation of Section 8 (b) (4) (A) of the Act, and another object
thereof being to force or require Floyd to recognize or bargain with the Respondent as the
representative of the employees of Floyd, the Respondent not having ever been certified
under the provisions of Section 9 of the Act as the representative of said employees, in
violation of Section 8 (b) (4) (B) of the Act.
Due to the prior illness of Respondent 's attorney , the undersigned permitted the Union to
file its answer at the opening of the hearing over the objection of the attorney for the charging
party. This answer admitted some of the allegations of the complaint but denied the commis-
sion of any unfair labor practices.
Before the hearing in the present case was held, the General Counsel instituted a proceed-
ing under Section 10 (1) of the Act in the United States District Court for the Southern Dis-
trict of Indiana , Indianapolis Division , seeking an injunction against the Respondent pending
a decision by the Board in the present case.
Pursuant to notice , a hearing was held in the instant case at Indianapolis , Indiana, from
February 16 to 19, 1953 , inclusive before the undersigned Trial Examiner . The General
Counsel, Hoosier Pete, and Respondent participated in the hearing by counsel and were af-
forded full opportunity to be heard, to examine and cross -examine witnesses, and to intro-
duce evidence bearing upon the issues . At the conclusion of the hearing, the undersigned
advised the parties of their rights to file briefs, findings of fact and conclusions of law, or
both. Briefs were received from the General Counsel, the charging party, and the Respondent
on March 20, 1953.
Upon the entire record in the case and from his observation of the witnesses, the under-
singed makes the following:
FINDINGS OF FACT
I. COMMERCE
At all times material herein Hoosier Petroleum Company, Inc., more familiarly known as
Hoosier Pete , was and is an Indiana corporation engaged in the sale of petroleum products at
retail in the States of Indiana, Illinois , and Missouri among other States of the United States.
These sales are made through filling stations either owned and operated by Hoosier Pete or
by dealers licensed by Hoosier Pete. The main office of this corporation is located at 2037
East Washington Street, Indianapolis , Indiana. It operates a retail filling station at 1211 West
Washington Street, known as Station No. 7, in Indianapolis, Indiana, where during the 12
months ending November 1, 1952, it engaged in the sale and distribution of gasoline and oil
at retail in a volume of sales exceeding $360,000, 25 percent of which dollar volume of sales
was made to trucks owned by various freight carriers and operated by them directly in
interstate commerce.
Vortex Petroleum Company, herein called Vortex, an Indiana corporation, whose main
office is also located at 2037 East Washington Street in Indianapolis, Indiana, is exclusively
engaged In the transportation of petroleum products to and for the Hoosier Petroleum Com-
pany, Inc., with the exception of some small amount of transportation of such products to the
Lilley Brokerage Company and the Monarch Buick Company, which is done with the consent
and approval of Hoosier Pete. The sole assets of Vortex are its tank trailers. It has no em-
ployees. Its clerical work is done by employees of Hoosier Pete.
Jesse G. Floyd is an individual who, in 1946, owned and operated 2 automobile tractors
which have subsequently been increased to 7. In 1946 Floyd entered into some arrangement
with Vortex whereby his tractors were used exclusively for hauling Vortex trailers. The
agreement in effect at the time material here is as follows:
AGREEMENT
This Agreement made and entered into by and between Vortex Petroleum Co., Inc.,
hereinafter known as "First Party" and Jesse G. Floyd, hereinafter known as "Second
Party",
WITNESSETH:
Whereas, First Party is the owner of tank trailers to be used in transport of petro-
leum products, and
6 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whereas, Second Party is the owner of seven (7) tractors same being one White tractor
model WB-20T, Serial number 329885, one White WC-22-T, serial number 150-A-18484,
one WC-22-PLT, serial number 375763, one White WC-22-PLT, serial number 384849,
one White tractor model WC-20-T, serial number 39723, one Ford Tractor model F8,
serial number 60797, one White tractor model WC-22-PLT, serial number 403111, and
Whereas, Second Party desired to lease said tractors exclusively to First Party for
the purpose of pulling the tank trailers of First Party,
NOW THEREFORE BE IT AGREED:
1. That Second Party leases to First Party the above referred to tractors to be used
exclusively for the purpose of pulling the tank trailers owned by First Party.
2. Second Party agrees to furnish responsible drivers for each tractor, and to keep
said tractors in good repair and operating condition all at expense of Second Party.
3. Second Party shall carry insurance on said tractors covering loss by fire, theft
and collision, and shall furnish copy of such insurance to First Party.
4. Second Party shall pay all expenses incurred in operation of said tractors, and
agrees to purchase his requirements of gasoline and oil from the First Party during the
period of this agreement.
5. First Party agrees to carry public liability and property damage on Second Party's
tractors as well as the tank trailers owned by First Party, and to cause Second Party to
be named as an insured in such policy.
6. Second Party shall receive as full compensation for said tractors and services to
be performed hereunder seventy-three (73) percent of the established freight rates as
established by the Interstate Commerce Commission.
7. This agreement shall be binding upon the parties hereto for a period of one year
from date.
IN WITNESS WHEREOF, we have hereunto set our hands this 1st day of April , 1952.
FIRST PARTY
VORTEX PETROLEUM CO., INC.
By /s/ P. H. Logan
SECOND PARTY
/s/ Jesse Floyd
Floyd maintains his books and records at his home in Indianapolis , Indiana, under the control
of his wife as bookkeeper. The sites of his other operations will be discussed more fully
hereinafter.
The Respondents admit, and the undersigned finds, that Hoosier Petroleum Company, Inc.,
is engaged in commerce within the meaning of the Act.
U. THE RESPONDENT
Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135, affiliated with
International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America,
AFL, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Events and relationships prior to the strike
As noted heretofore, Hoosier Pete is an Indiana corporation. Its closely held stock is
owned in equal shares by P. H. Logan, T. R. Jenkins, and N. B. Jenkins. These 3 men are
respectively the president and treasurer, the vice president, and the chairman of the board
of directors of Hoosier Pete which is composed of the 3 men referred to above together
with L. E. Tenney and M. R. Lafoon . The secretary and purchasing agent of Hoosier Pete is
Donald E. Brown.
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 639
The also closely held stock of Vortex is owned in approximately equal shares by P. H.
Logan, T. R. Jenkins, N. B. Jenkins, L. E. Tenney, and M. R. Lafoon, who also constitute its
board of directors. As in the case of Hoosier Pete, Logan is its president and treasurer,
T. R. Jenkins, one of its vice presidents, but, Vortex not having a chairman of its board of
directors, N. B. Jenkins is a vice president. Donald E. Brown is likewise secretary of Vortex.
Thus, although Hoosier Pete and Vortex are separate corporate entities under the corporation
laws of the State of Indiana , the evidence disclosed them to constitute practically a single
entity due to the common stock ownership , officers , and operations.
Vortex was incorporated in 1946 in order to purchase certain tank trailers previously
owned by George Lilley , late president of Hoosier Pete, and then engaged in transporting
petroleum products to and for Hoosier Pete. Since its incorporation , Vortex has been, and
now is , engaged exclusively in the transportation of petroleum products to and for Hoosier
Pete with the exception of a small amount transported to Lilley Brokerage Company and
Monarch Buick Company. 2
Except for its tank trailers, Vortex owns no property other than its so-called lease agree-
ment with Floyd, quoted in full above. It has no payroll or employees and all its clerical work
is performed by employees of Hoosier Pete.
Although since 1946 Vortex has hauled exclusively for Hoosier Pete, the business arrange-
ment between the two corporate entities has been highly informal. When asked upon what
basis business was conducted between Hoosier Pete and Vortex, Brown, secretary for both
corporations , testified as follows:
I will try to, Mr. Examiner. We have two corporations of which we have common offi-
cers. We have no written or verbal agreements between the two companies, but so far as
our working for Vortex here and Hoosier here, it is pretty hard to differentiate between
the two. I would be inclined to draw the conclusion that our past performance pretty
much speaks for itself, to the extent there is an understanding that',brtex will do the
delivering for Hoosier. Does that clarify that?
TRIAL EXAMINER WILSON:
a
In other words, the basis on which you have been doing, the two corporations have been
doing business, is their past performance?
THE WITNESS: The basis under which we have been doing business would only apply
with closely held corporations.
Thus Vortex is, through its common officers and ownership, in truth and in fact the trans-
portation division of Hoosier Pete.
Although Vortex and Hoosier Pete were two separate legal corporations , they operated in
fact as one entity. The Vortex tank trailers were emblazened with the words painted on their
sides "Hoosier Pete." The Vortex name was nowhere in evidence. The "billing invoices"
for the trips hauled by Floyd and Vortex from which the Floyd compensation is computed
were sent by Floyd to 2037 East Washington Street, the common headquarters of both Hoosier
Pete and Vortex, where employees of Hoosier Pete--Vortex having none--computed the
amount owing from Hoosier Pete to Floyd for transportation and sent Floyd a Vortex check
for 75 percent thereof less the amount owing Hoosier Pete for gas and oil purchased from it
by Floyd. The complete identity of Hoosier Pete and Vortex was made obvious by paragraph 4
of the April 1952 agreement between Floyd and Vortex in which Floyd obligated himself "to
purchase his requirement of gasoline and oil from the first party [Vortex] during the period
of this agreement." As admittedly Vortex had no merchandise for sale--being exclusively a
transportation outfit--it is obvious that this paragraph of the agreement between Floyd and
Vortex referred to the products of Hoosier Pete which products Floyd did in fact purchase.
The undersigned, therefore, finds that, although Vortex and Hoosier Pete were legally 2
individual corporations, they were in fact but 1 entity. This piercing of the corporate veil
is permissible in this instance because of the use hereinafter attempted to be made of the
separate corporate entities of Vortex and Hoosier Pete.
2 The record is silent as to any connection between the late George Lilley and the Lilley
Brokerage and/or Monarch Buick Companies.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is now necessary to analyze just where Jesse Floyd fits Into this picture. Historically
Vortex in 1946, not owning any tractors to haul its trailers , entered into some business ar-
rangement not indicated in this record with Floyd because of his then ownership of a few
tractors, now increased to 7. By the 1952 agreement between Vortex and Floyd, quoted
su r, Floyd purported to "lease" his 7 tractors to Vortex for the exclusive purpose of
"pulling the tank trailers of" Vortex under an arrangement whereby Floyd was to furnish
"responsible drivers for each tractor " and to pay certain of the operating expenses in return
for a percentage of the transportation costs charged to Hoosier Pete. 8
The briefs of the General Counsel and of Hoosier Pete appeared to assume that under his
agreement with Vortex, Floyd became an "independent contractor ." This assumption does
not appear to be justified either under the terms of the agreement or the practice thereunder.
Under the so-called lease agreement, Floyd lost his authority to control his own rolling stock
other than to employ the drivers thereof. Otherwise officials of Hoosier Pete-Vortex con-
trolled the operation of the tractors on a trip-to-trip basis through orders relayed to the
drivers through Floyd or given directly to them by officials of Hoosier Pete-Vortex. Floyd's
tractors were to be used exclusively to haul Vortex trailers which, in turn , traveled exclu-
sively to Hoosier Pete filling stations as required by Hoosier Pete. Thus Floyd appears to
have enjoyed a double status: (1) by contract he was the lessor of his tractors; and (2) by
practice he was analogous to a superintendent of the transportation division of Hoosier Pete
hiring drivers whose competence satisfied Hoosier Pete and directing their work in accord-
ance with the trip -to-trip desires of Hoosier Pete. thus , instead of enjoying the independence
of action consonant with the status of an independent contractor, Floyd's position appears to
have been more analogous to that of the manager of the Hoosier Pete-Vortex transportation
division.
On the other hand the drivers recognized Floyd as their employer. They had each signed
individual employment contracts with Floyd specifying their rates of pay and other conditions
of employment. Their wages were paid by his personal check. He paid the social-security and
unemployment compensation taxes upon their earnings and made Federal withholding tax pay-
ments as well as performing other acts indicating his status as employer . However, the
drivers were all accustomed to seeking and accepting orders from Hoosier Pete officials in
the absence of Floyd and his assistant, "Red" Davidson. On at least one occasion Brown
threatened one of Floyd 's drivers with discharge unless , in Brown's estimation , he performed
his duties "competently."4 Thus, while Floyd's legal relationship with Hoosier Pete and
Vortex remained somewhat anomolous, it definitely was not that of an independent contractor.
Next it becomes pertinent to consider the sites of Floyd's operations . As found heretofore,
Floyd maintained his office and business records at his home under the control of his wife
as bookkeeper . Otherwise all his other operations centered at the Hoosier Pete Station No. 7
at 1211 West Washington Street, Indianapolis, Indiana.
The premises at 1211 West Washington Street, owned or leased by Hoosier Pete, is a tract
of ground with a frontage of about 400 feet on Washington Street and a depth of about 450 feet.
It is divided roughly in half by a high fence paralleling the street . The half fronting on Wash-
ington Street is operated by Hoosier Pete as a filling station, known as Station No. 7, catering
specifically to motor freight trucks and tractors with the automotive servicing equipment
usual to such a station and with parking space for the convenience of the drivers. In addition
there is a large two story building in this portion of the property housing the filling station
headquarters , a restaurant , and a grease pit on the ground floor with a shower room and
offices leased to local trucking companies on the second floor.
The other half of the property beyond the fence and distant from the street is used by
Hoosier Pete as its bulk plant with storage tanks , etc. In addition there is in this portion of
the premises a large parking area where for at least 5 or 6 years prior to November 18 or
19, 1952, Floyd parked his tractors and the Vortex trailers at night and when not in use. The
sole means of ingress or egress for trucks to and from the bulk plant area is by a lockable
9Subsequent to the execution of this agreement Floyd, Logan, and Brown verbally agreed to
various modifications of the contract whereby F loyd's percentage of the transportation receipts
was raised from 73 to 75 percent and Floyd was relieved of certain increased State license
fees. The record fails to disclose in which corporate capacity Logan and Brown were acting
when these modifications were made
4Brown's failure to recall this incident, like Floyd's testimony to the same effect, was not
convincing.
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 641
gate located close to the westerly end of the fence and reached by a driveway on the station
property' running on the westerly side of the building aforementioned. Only Floyd and Hoosier
Pete officials carried keys to this gate.
Here Floyd parked his tractors and Vortex trailers when not in use on the road, in the
locked parking space at the Hoosier Pete bulk plant. For over a year and a half Floyd had
leased the grease pit which occupied the whole rear length of the station building and there
maintained and serviced the rolling equipment used by Vortex and him as well as greasing
and oiling the equipment of third parties , often times at the request of the station manager.6
At Station No. 7 Floyd hired new drivers. Here Floyd daily gave the next day's route instruc-
tions to his drivers. Here his drivers telephoned him for future orders. Here officials of
Hoosier Pete telephoned Floyd with further instructions. Here the station attendants took
messages for Floyd. Here either Floyd or his assistant were generally to be found. At
Hoosier Pete Station No. 7 for a period of at least 5 years Floyd maintained his headquarters
from which he carried on business operations. 1211 West Washington Street was the place of
business of Jesse Floyd.
B. The strike of November 18, 1952
On November 17, 1952, Union Business Agents James Nolan and Byron Trefts went to
Hoosier Pete Station No. 7 where they located Jesse Floyd and requested that he recognize
Local 135 as the bargaining agent for the five drivers then employed by him. 6 Floyd re-
quested time to consider the matter.
That evening when his drivers had gathered at Station No. 7 at the end of their day's work
as was their custom (and prior to notifying Local 135 of his decision), Floyd met with them at
the grease pit and stated that he understood that they were joining the Union, asked them what
the trouble was, and then said that he could not recognize Local 135 because, if he did, he
would be out of a job with Hoosier Pete.
Thereafter, by telephone from his home, Floyd refused to recognize Local 135 on the
ground that he might be going out of business.
About 5 or 6 a. m. on November 18, pickets from Local 135, including 3 of Floyd's drivers,
appeared in front of 1211 West Washington Street marching up and down the full 400-foot
length of sidewalk along the station property carrying picket signs reading:
ON STRIKE
JESS FLOYD
haulers for
HOOSIER PETE
over the name of Local 135, 28 West North Street, Indianapolis, Indiana. Although all the
proper names on this sign were of increased size, the name "Hoosier Pete" was larger than
that of Jesse Floyd.
The picketing by from 2 to 4 pickets was peaceful.? As they walked back and forth, some of
the pickets would hold up their signs and gesture towards them in order to draw the attention
of passersby to the sign. Occasionally the pickets spoke to truckdrivers either as they were
driving into 1 of the 4 entrances to the station or as they were parked at the gas pumps
getting fuel. There is evidence that, after speaking with the pickets, some of the drivers of
the trucks entering the station drove through the station without purchasing gasoline while
others made their purchases at the station. There is evidence that some unknown picket
threatened "to pull the card" of a truckdriver while he was parked at the gas pumps fueling
his truck.
5The business arrangement under which Floyd performed these services for third parties
was, according to the testimony of both Floyd and the station manager of Hoosier Pete, so
indefinite, contradictory, if not mysterious, as to create the suspicion that the witnesses were
attempting to conceal some fact.
6That same day Floyd hired a sixth driver
7 There was evidence introduced at the hearing that during the strike some party unknown
threw a rock through the windshield of one of the Floyd tractors some considerable distance
from Station No. 7. The charging party did not claim to have any proof that the Union was
responsible for this act of vandalism.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 18 or 19, following a conference between Floyd, Logan, and Brown, Floyd
ceased parking his trucks in the usual parking area by the Hoosier Pete bulk plant and instead
began parking them at the headquarters station of Hoosier Pete, also the headquarters of
bbrtex, at 2037 East Washington Street. On November 18, according to the evidence of Floyd
and Brown. Floyd's lease of the grease pit at Station No. 7 was canceled.
When the picketing continued in front of Station No. 7 the following day, Hoosier Pete filed
its charge on November 20, 1952, against Local 135 for allegedly violating Section 8 (b) (4)
(A) and (B).
On November 23, Sunday, in the absence of pickets and with the consent of Hoosier Pete,
Floyd and Davidson made use of the grease pit on the premise for greasing and oiling the
tractors and trailers. So far as the record discloses, Floyd made no payment to Hoosier Pete
for the use of the grease pit on this or other occasions thereafter when Floyd also made use
of the grease pit to maintain his equipment until January 1953.8
This picketing continued sporadically for a period of 8 or 9 days ending about November
27, 1952, when the Union discovered that Floyd had moved his tractors and Vortex trailers
to the Hoosier Pete headquarters station located at 2037 East Washington Street. Upon con-
firming this discovery, which the Union had previously suspected, the picketing at 1211 West
Washington Street ceased and has not since been resumed. No attempt was made to picket at
2037 East Washington Street.
C. Conclusions
The General Counsel and Hoosier Pete have based their case upon the following sections
of the Act:
8 (b) It shall be an unfair labor practice for a labor organization or its agents -
(4) to induce or encourage the employees of any employer to engage in a strike or a
concerted refusal in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services , where an object thereof is:
(A) Forcing or requiring ... other persons to cease using , selling, handling, trans-
porting, or otherwise dealing in the products of any other producer, processor, or
manufacturer , or to cease doing business with any other persons;
(B) Forcing or requiring any other employer to recognize or bargain with a labor
organization as a representative of his employees unless such labor organization had
been certified as the representative of such employees under the provisions of Sec-
tion 9;
Although the above-quoted sections of the Act could conceivably have been interpreted in
such a manner as to outlaw all strikes, primary or secondary, the courts and the Board now
universally interpret the above sections in accordance with the words of Judge Rifkind:
Examination of these expositions of Congressional purpose indicates that the provision
[Section 8 (b) (4)] was understood to outlaw what was theretofore known as a secondary
boycott.9
8 The testimony further disclosed that Floyd paid rental on the grease pit at Station No. 7
from January 1 to January 15, 1953. In fact Floyd retained the keys to the grease pit until ap-
proximately 3 or 4 weeks prior to the present hearing at which time Hoosier Pete leased the
grease pit to some third party. Some of Floyd's equipment was still located at the grease pit
at the time of the hearing, never having been removed therefrom.
9 Douds v. Metropolitan Federation of Architects, 75 F. Supp. 672 at 676.
CHAUFFEURS , TEAMSTERS , WAREHOUSEMEN & HELPERS 643
It is now well established law that the General Counsel and the charging party must prove
that the activities of the labor organization complained about amount to a secondary boycott
of a neutral employer in order to prove a violation of the above -quoted sections of the Act. 10
It is further well established law that, where the premises of the primary employer is
picketed by a union having a legitimate dispute with said employer , the picketing is lawful
even though incidental damage is done by such picketing to a secondary employer and that
the mere damage to such secondary or neutral employer is not violative of Section 8 (b)
(4) of the Act.
The charging party in its brief states the legal problem involved here as follows:
The National Labor Relations Board has interpreted the provisions of Section 8 (b)
(4) of the Act in regard to what constitutes lawful primary picketing and what constitutes
unlawful secondary picketing in situations involving premises of a secondary employer
having some incidental connection with the primary employer . In the Moore Drydock
case 11 the Board established specific criteria for determining whether or not picketing
of the premises of a secondary employer is primary (and thus lawful) or whether it is
secondary (and thus unlawful) in circumstances where the secondary employer is har-
boring the sites of a dispute between a union and a primary employer.
When a secondary employer is harboring the situs of a dispute between a union and
a primary employer , the right of neither the union to picket nor of the secondary em-
ployer to be free from picketing can be absolute . The enmeshing of premises and situs
qualifies both rights . In the kind of situation that exists in this case, we believe that
picketing of the premises of a secondary employer is primary if it meets the following
conditions : (a) The picketing is strictly limited to times when the sites of dispute is
located on the secondary employer 's premises , (b) at the time of the picketing the
primary employer is engaged in its normal business at the sites ; (c) the picketing is
limited to places reasonably close to the location of the situs ; and (d) the picketing
discloses clearly that the situation is with a primary employer. 12
On the other hand Local 135 in its brief contends that it could not violate Section 8 (b) (4)
because (1) Floyd was either "an employee of 'Hoosier - Vortex ' or that Floyd was engaged
as a limited partner or in some form of joint venture with 'Hoosier -Vortex" '; or (2) "1211
West Washington Street was the place of business of Floyd. " In either of these eventualities
the picketing of Local 135 would be primary and thus no violation of Section 8 (b) (4).
As found above Hoosier Pete and Vortex , although 2 separate corporations, constituted
in fact but 1 entity due to their common ownership , officers , and operations . Floyd's anom-
olous relationship to Hoosier -Vortex as lessor, employRient agent, and transportation super-
intendent is so interrelated and integrated with Hoosier-Vortex as to cause him to be an in-
tegral part of the integrated entity despite the fact that the drivers regarded him as an indi-
vidual to be their employer . Although General Counsel and the charging party assume in
their briefs that Floyd was an "independent contractor ," the so-called lease agreement
together with the practice thereunder prove that Floyd lacked the independence of operation
and control necessary for such a legal status. The undersigned finds Floyd to be an integral
part of Hoosier -Vortex. is
In its brief Hoosier Pete maintained that Floyd was the "employer " of the drivers under
Section 2 (3) of the Act. The undersigned agrees that Floyd does qualify as an employer under
the terms of the Act but does that disqualify Hoosier Pete from also so qualifying ? Although
Floyd was the ostensible employer of the drivers due to hiring and paying them along with
► oSchultz Refrigerated Service , Inc., 87 NLRB 502. Moore Dry Dock Company, 92 NLRB
547. N L. R. B. v. Service Trade Chauffeurs, Salesmen and Helpers , Local 145, etc , 191
F 2d 65.
1192 NLRB 547.
12 After analysis counsel reached the conclusion that Local 135 met none of the criteria
established by the Board. The undersigned cannot agree.
13See A. E. Blacklidge , 91 NLRB 221 , where the Board discusses who is the employer in a
situation somewhat similar to the one presented here. Nu-Car Carriers, Inc , 88 NLRB 75;
N L. R. B. v. Steinberg & Co , 182 F. 2d 850 (C. A. 5).
322615 0 - 54 - 42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other attributes of an employer, yet Hoosier Pete-Vortex maintained such control over their
trip-by-trip activities as to qualify as their employer due to its authority to give them their
orders and instructions and to its obvious ability to enforce those orders and instructions. As
a part of the integral unit of Hoosier-Vortex-Floyd, Hoosier Pete also appears to qualify as
an employer of the drivers of the Floyd tractors under the terms of Section 2 (3) of the Act.
But regardless of the above, it is obvious that for 5 or 6 years prior to November 18 or
19, 1952, the business of Floyd had been conducted from 1211 West Washington Street. Indi-
anapolis, Indiana, premises known in this record as Station No. 7, where Floyd parked his
trucks, where he repaired and maintained the equipment in the grease pit on the station
premises leased by him for that purpose, where he hired and consulted with the drivers, and
from which he directed their daily trip-to-trip activities in accord with the desires of
Hoosier Pete. Thus, 1211 West Washington Street was his main place of business despite the
fact that his records were kept by his wife at their dwelling house. Therefore, when the
picketing began on November 18, 1952, Local 135 was in fact picketing the employer with
whom it had a legitimate legal dispute at his place of business. Such is definitely primary
picketing and thus no violation of Section 8 (b) (4) of the Act.
General Counsel and Hoosier Pete argued that, at least after Floyd ceased parking his
trucks at 1211 West Washington Street and after his lease of the grease pits had been orally
canceled, the picketing at Station No. 7 by Local 135 became secondary and illegal. This
argument appears to concede the finding made above that, when the picketing began, the Union
was picketing the primary employer at the primary employer's place of business and thus was
primary and legal.
This argument also raises the question whether the picketing of the Union became a viola-
tion of the Act "at least" when Floyd moved his trucks and when Floyd and Hoosier Pete
mutually agreed upon the cancellation of the 1Z-year-old lease on the grease pit at the sta-
tion, thus purportedly showing an abandonment of Floyd's place of business at the station for
the first time since 1946 or 1947.
This contention of General Counsel and of Hoosier Pete appears to be hypertechnical as
well as unsound both in law and in fact to the undersigned. In fact, the filing of the charge
here by Hoosier Pete on the very day after these changes between Floyd and Hoosier Pete
had been allegedly completed causes one to uaerethe bona fides of these changes. Especially
is this so in view of the facts that, besides permitting the continued use of the grease pit by
Floyd, Hoosier Pete provided sanctuary for the tractors at its headquarters station. To the
cynical it might well create the impression that the charge had been filed not to protect a
neutral employer, as the Act was designed to do, but rather in order to combat actively legit-
imate unionizational activities on the part of the employees as well as of the Union. If this
were a suit in equity, this filing by Hoosier Pete the day after these purported changes might
well raise the defense of "unclean hands." So, in this case, it raises the question of the
neutrality of Hoosier Pete.
The question of the change of a man's place of business is quite analogous to a change of
a man's domicile: being in considerable degree a matter of intent--intent to do business at
a certain location. Domicile can be changed only by facts showing the individual's intent
that the change is to be permanent. The same requirement must also be applicable to a pur-
ported change of a place of business. Otherwise the law would seem to grant a decided and an
unwarranted premium to mobility and irresponsibility. In the present case evidence is com-
pletely lacking that Floyd's so-called abandonment of his place of business was permanent--
or was intended to last for any longer period than the duration of the picketing. Note the fact
that, despite the "cancellation" of the oral lease on the grease pit, Floyd admittedly used
that pit as usual for the maintenance of his equipment 4 or 5 days thereafter, on Sunday,
November 23, when it happened that there were no pickets present at Station No. 7. The evi-
dence indicates that the pit was similarly used at other times during and after the strike.
Certainly this use of the pit hardly coincides with either a bona fide business cancellation of
the lease or with a permanent abandonment of Floyd's operational headquarters at Station
No. 7. Nor, does the fact that Floyd continued to leave his tools and equipment at the pit
throughout this period--and until 3 or 4 weeks prior to the hearing--indicate any intent to
abandon Station No. 7. Except for these two well-publicized changes noted at the hearing,
there were few, if any, changes made in Floyd' s operations at 1211 West Washington Street.
Floyd and his assistant, "Red" Davidson, continued to spend a good portion of their time at
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN & HELPERS 645
the station, to send and receive telephone calls at the station, and to receive orders from
Hoosier Pete and transmit them to the drivers at Station No. 7 all in accordance with their
usual practice. In other words, Floyd's operations continued after November 18 or 19, 1952,
as they had previously at 1211 West Washington Street despite the so-called abandonment of
it as place of business. Therefore, as there is no showing of any bona fide or permanent in-
tent to abandon 1211 West Washington Street and as there is definite proof that Floyd con-
tinued to use that location as his place of business throughout the period of the picketing, the
undersigned finds that 1211 West Washington Street, Indianapolis, Indiana, was at all times
material herein the place of business of Floyd so that the picketing by Local 135 of Floyd at
that location was at all times primary picketing of the primary employer at his place of busi-
ness and, therefore, no violation of Section 8 (b) (4) of the Act.
In view of this finding the situation involved in the Moore Drydock case, does not arise
here. However, assuming that it did for the sake of argument, the evidence adduced here
proved that Local 135 fulfilled each of the requirements set forth in that decision by the
Board.
Although the finding above is determinative of this case, it might be well to consider
briefly 1 or 2 of the major arguments advanced by the General Counsel and the charging
party in their briefs.
Complaint is made that the name "Hoosier Pete" on the picket signs was in larger print
than the name "Jess Floyd" thus giving the false impression that employees of Hoosier Pete
were on strike. While it is true that the Hoosier Pete name was in larger letters, the wording
of the sign was in fact correct for, as discussed above, Floyd was hauling for Hoosier Pete.
This was even more apparent to the public whenever the rolling equipment was seen on the
highway as the Vortex trailers were emblazoned with the name "Hoosier Pete." The Vortex
name did not appear on the equipment at any place. The Floyd tractors had painted on the cab
the words "Jesse G. Floyd leased to" followed by a painted hand pointing to the trailers with
their large "Hoosier Pete." To hold Local 135 for a violation of this act because of a slight
difference in the size of the printing of the names upon the picket signs would be more than
hypertechnical. In addition Hoosier Pete could only be considered a neutral employer through
the fiction of being a separate, distinct entity from Vortex-Floyd.
Lastly the General Counsel and the charging party contend that Local 135 should have re-
stricted its picketing to the driveway at the very west end of the station at 1211 West Wash-
ington Street because that was the driveway closest to the locked gate into the bulk plant and
the parking area used by Floyd. This technical argument ignores the uncontradicted evidence
at the hearing that the Floyd tractors and trailers involved here used each and every one of
the four driveways into 1211 West Washington Street and did not restrict their means of entry
to the driveway at the west end. It also conveniently ignores the fact that Floyd had to have
the full use of the station premises in order to use his leased grease pit as well as the
Hoosier Pete pumps. This contention, besides being hypertechnical, is unsound in law and in
fact.
For the foregoing -reasons, the undersigned concludes that the evidence warrants a finding
that the Respondent has not committed any unfair labor practice within the meaning of Section
8 (b) (4) (A) or (B) of the Act and will therefore recommend that the complaint be dismissed
in toto.
Upon the basis of the foregoing findings of fact and upon the entire record in the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. Hoosier Petroleum Company, Inc., and its station at 1211 West Washington Street,
Indianapolis , Indiana, are engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. Chauffeurs, Teamsters , Warehousemen & Helpers Local Union No. 135, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The aforesaid Local 135 has not engaged in any unfair labor practices within the
meaning of the Act.