Local 375, Teamsters

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 486 (N.L.R.B. 1973)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 375, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and Irish Welding Supply Corporation
Local 375, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
and Strate Welding Supply Company, Inc. Cases
3-CC-706 and 3-CC-708
June 25, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 26, 1973, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed.
1 In the absence of record evidence to that effect, we disavow the Adminis-
trative Law Judge's finding (fn. 21 of his Decision ) that Irish was "legally
indebted and will be required to pay Burdox for the extra haulage " Irish and
Burdox had apparently agreed that Irish would pay Burdox for these services,
at least when they reached a certain cost level . Porter, an employee of
Burdox, who was credited by the Administrative Law Judge , so testified.
Burdox, by Lockmiller , conceded the possibility had been discussed but no
charge had been made "as yet "
On the record Members Fanning and Penello would find the picketing of
Lucidol, on which the Administrative Law Judge found it unnecessary to
pass, not violative of the Act
DECISION
1. PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Administrative Law Judge: This
consolidated proceeding I under the National Labor Rela-
1 Consolidated complaint issued by the Regional Director for Region 3 on
September 1 arising out of charges filed with him on August 14 and 15, 1972
tions Act as amended, 29 U.S.C. Sec. 151 et seq. ("Act"), was
tried before me in Buffalo, New York, on October 5-6,
1972,2 with all parties participating throughout by counsel,
who were afforded full opportunity to present and contro-
vert proof and otherwise be heard, as well as to submit briefs
on October 27. Trial transcript and exhibits were received
by me on November 13. I have considered with care the
entire record within the frame of reference of legal conten-
tions raised.
At issue is whether Respondent Union (Teamsters Local
375) engaged in secondary boycott activity in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act.
Upon the entire record 3 and my observation of the testi-
monial demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
11 PARTIES , JURISDICTION
It is conceded that at all material times Respondent has
been and is a labor organization within the meaning of the
Act; and 4 that Charging Parties Irish Welding Supply Cor-
poration ("Irish") and Strate Welding Supply Company,
Inc. ("Strate"), as well as Burdox Inc., Division of Burdett
Oxygen Co. of Cleveland, Inc. ("Burdox" and "Burdett")
and Lucidol, Division of Pennwalt Corporation ("Luci-
dol"), have each been employers and/or persons engaged in
commerce within the meaning of the Act. Accordingly I
find that jurisdiction is here established.
111. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
The material facts , substantially undisputed , are found to
be as follows:
1. General background
Burdox of Tonowanda, New York (Division of Burdett of
Cleveland, Ohio) manufactures and distributes compressed
gases, in metal cylinders, among others to Irish, which redis-
tributes them . Strate of Buffalo , New York, makes, sells,
and distributes compressed gases, among others to Burdox
(pursuant to contract between Strate and Burdox), which
Burdox sells to Irish. Lucidol of Tonowanda, New York, is
a dry ice customer of Irish (under contract with Irish). The
following diagram shows these relationships in simplified
form:
Strate
I
Bu rd ox
I
IRISH
W
Luc idol
2 All dates references are to 1972 unless otherwise specified
J Trial transcript as corrected in respect to obvious and typographical
errors set forth in attached "Appendix A" [not published].
4 Through withdrawal , at the trial, of certain denials in the answer
204 NLRB No. 84
LOCAL 375, TEAMSTERS
It is conceded that since May, Respondent (Teamsters
Local 375) has been engaged in a labor dispute with Irish,
with picketing commencing on July 17. The complaint al-
leges that , in violation of the secondary boycott proscrip-
tions of Section 8(b)(4)(i) and (ii)(B) of the Act, Respondent
on August 4 threatened, coerced, and restrained Strate; and
that on August 14 it picketed Burdox, Strate, and Lucidol,
and on September 8 again picketed Strate, seeking to pre-
vent employees and others from performing services for
them or their employers, and also threatening, coercing, and
restraining Burdox, Strate, Lucidol, and others with an ob-
ject of forcing them to cease supplying or otherwise doing
business with Irish. Respondent denies it violated the Act.
2. Underlying contractual relationships
Irish of Buffalo , one of the chief compressed gas distribu-
tors in the Buffalo (New York) area,' is the largest oxygen
customer and distributor of Burdox of Buffalo, a manufac-
turer (as well as distributor) of bulk liquid and compressed
gases . The 1970-74 contract between Irish and Burdett of
Cleveland, Ohio (Burdox's principal), obligates Irish, as
Burdett's distributor in the Buffalo industrial area , to pur-
chase all of Irish 's compressed gas needs (oxygen , acetylene,
nitrogen , argon , helium , and air) from Burdett (Burdox),
subject to exculpation of Burdett in event of "strikes, or
other labor disturbances . . . . or any other similar or dis-
similar cause beyond the Company' s [i.e., Burdett's] reason-
able control." Under the Irish contract with Burdett
(Burdox), prices for the compressed gases , f.o.b. Burdox's
New York State regional location , depend upon whether the
metal cylinders into which such gases are compressed (and
in which they are delivered to users or maintained in inven-
tory by distributor Irish) are "dealer owned" (i.e., Irish-
owned) or "company owned" (i.e., Burdox-owned), there
being a differential of 20 cents additional charge per hun-
dred cubic feet for gas supplied to Irish in Burdox cylinders;
also, there is a daily "demurrage " charge for Burdox cylin-
ders not returned to Burdox by Irish within 30 days; and,
in order to encourage prompt return of Burdox's cylinders,
Irish's contract with Burdox requires Irish likewise to im-
pose a demurrage charge upon its customers for over 30
days' retention of Burdox cylinders. Irish is responsible for
good return of Burdox cylinders, which are red and marked
"Burdox," and thus clearly distinguishable from those of
Irish, which are white and also mostly marked "Irish." Un-
der Irish's contract with Burdett (Burdox), Irish is required
to provide liability insurance coverage for vehicles utilized
by Irish to transport Burdox cylinders, and to save Burdox
harmless from claims arising from its handling of Burdox
cylinders. Burdett (Burdox) in turn under contract obtains
compressed gases from Strate of Buffalo , in Burdett (Bur-
dox) "-owned" cylinders. Irish has never had a contract with
Strate.6
5 Distributees include welders, truckers , and industrial manufacturers
6 The contract between Burdett (Burdox) and Strate provides merely for
supply of gas by Strate to Burdox in Burdox-owned cylinders, without men-
tion of Irish in any way. Thus, Strate would not be in breach thereof through
failure to supply Irish with gas, nor through failure to supply Burdox with
gas in Irish-owned cylinders
487
3. July 17 change in business procedures
Daily prior to July 17-as of which date the labor dispute
between Local 375 (Respondent) and Irish had been in
progress for about 2 months-Irish drivers using Irish
trucks 7 had followed the system of daily picking up filled
compressed gas cylinders and dropping off empty cylinders,
at Burdox (40 percent) or at Strate (60 percent), with all
billing to Insh by Burdox. Strate is located about 2 1 /2
miles from Burdox; Irish is closer to Strate than to Burdox.
For practical purposes all cylinders 8 are owned by Irish
(white) or by Burdox (red). Insh then distributed the filled
cylinders (white or red) to its customers or added them to
its inventory at its own premises. Prior to July 17-since
when Respondent Union has been picketing Irish opera-
tions-close to all (90 percent or more) of Irish's com-
pressed oxygen cylinder needs were picked up by Irish
drivers (using Insh trucks and Irish cylinders) at Strate,9
Irish being the only Burdox customer who picked up its own
cylinders at Strate.
On or immediately after July 17, although Irish drivers
continued to pick up filled (and drop off emply) cylinders
at Burdox, they stopped making trips to Strate because
Burdox-whose premises were being picketed by Respon-
dent Union when Irish trucks called there and who had
notified Strate of the Union's labor dispute with Irish-
commenced with Burdox trucks and drivers daily to make
the pickups-dropoffs at Strate which Irish trucks and drivers
had up to then (July 17) been making at Strate; and after
Burdox picked up Irish's needs at Strate, Irish picked them
up from Burdox at Burdox's premises.1° In the words of
Burdox Branch Manager Lockmiller at the trial, this change
in procedures, made after discussion between himself and
Irish, was in order "to protect Burdett's interest.... [by]
insulat[ing] Strate, who is a union shop, from any possible
labor problems so that we could continue in business [by
continuing to supply Irish, which would not have been pos-
sible if Irish had continued to pick up and deliver cylinders
at Strate, which would either not have supplied Irish or
which would have been picketed by the Union during such
pickup-delivery operations]." Burdox demurrage invoices in
evidence establish that from mid-July to mid-September
Burdox-owned cylinders in Irish's possession or charged to
Irish rose from 520 to 884, an increase of almost 60 percent.
According to Burdox Branch Manager Lockmiller, Burdox
processes a total of 1,200 cylinders per month, of which 800
are for Irish, and Irish accounts for 40 percent of Burdox's
entire business. Lockmiller concedes that excessive use by
Irish of Burdox cylinders (such as in case Irish's use of its
7Irish had (and has) approximately 12 drivers and 17 trucks
i percent or less are customer-owned
Irish truck dispatcher-counterman Schaefer, called by General Counsel,
testified that the average daily pickup by Irish drivers at Strate before July
17 was 20 to 50 cylinders, some to maintain a level of supply at Irish premises.
Schaefer also testified that this level of pickup-supply continued as well after
July 17, but-in contradistinction to practice prior to July 17-by Irish
drivers from Burdox after Burdox had first picked them up from Strate
10 Irish 's method of distribution to its own customers after July 17 re-
mained unchanged. On one occasion, however, on or about July 17, an
attempted direct delivery by Burdox of Irish cylinders to a customer of Irish
(Ashland Oil Company in Buffalo ) on an Irish bill of lading, was count-
ermanded and stopped when called by the Union to the attention of Lockmil-
ler and Burdox headquarters (Burdett) in Cleveland
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own is inexpedient) could interfere with Burdox's ability to
serve Burdox's other customers.
Although Lockmiller testified that Burdox did not change
Irish for Burdox's newly instituted pickup service for Irish
at Strate after July 17-which Lockmiller conceded took up
40 percent of Burdox's driver time, Burdox truckdriver Por-
ter swore at the trial, under subpoena by Respondent, that
he was told by his superior, Mike Falsone (Falsoney), as
well as by Lockmiller, that Irish would be paying for his
(Porter's) substantial overtime occasioned by Burdox's
post-July 17 pickup at Strate of cylinders for Irish (on which
Porter was required to keep separate records)." Since (1)
Porter impressed me as a credible witness-and in the de-
scribed context more so than Lockmiller, (2) Porter was
testifying adversely to his employer and thus at potential
risk of incurring his employer's displeasure if not reprisal,12
(3) Lockmiller did not rebut Porter's testimony, which was
given after that of Lockmiller, (4) Falsone was unaccount-
edly not produced in rebuttal, (5) the contract between Bur-
dett (Burdox) and Irish does not require Burdox to pick up
or drop off Irish cylinders elsewhere than at Burdox prem-
ises , (6) no persuasive reason has been established or ap-
pears for Burdox to provide such additional service or
undergo such added expense without compensation or at
least reimbursement from Irish, (7) the contract cost to Irish
of gas in Irish cylinders is less than that of gas in Burdox
cylinders, thus indicating economic benefit to Irish from the
use of its own cylinders and economic detriment from the
use of Burdox cylinders, and (8) Porter's version indicating
Burdox's intention or expectation of future reimbursement
from Irish for this extraordinary service is either not incon-
sistent with Lockmiller's testimony of no charge or billing
(as yet; "We had talked about a possibility of an additional
cartage charge": Lockmiller's testimony in U.S.D.C. injunc-
tion proceeding, Joint Exh. 1, p. 124) therefor, or if inconsis-
tent more plausible than that Burdox has neither made nor
intends to make such charge, I credit Porter's version that
the expense of Burdox's pickups at Strate for Irish, since
July 17, has been or will be charged by Burdox to Irish, for
li Porter further testified that his daily travel to and pickup (as well as
unloading) of 40 cylinders at Strate-i e., the approximate minimum average
number which Irish driver Metros testified he (or a fellow driver) had been
picking up at Strate daily for Irish prior to July 17)-took an hour and a half,
that at any rate from September 14 (the date of the U S district court
temporary injunction hearing alluded to below) until the date of the instant
trial, most of his overtime has been spent on or ascribable to handling Irish
cylinders, including at least 4-1/2 of 6 hours' Saturday overtime-theretofore
almost unprecedented, according to Porter. Porter also swore that at no time
prior to July 17 had he handled Irish (white) cylinders, that although prior
to July 17 Burdox had maintained an inventory of 70 full cylinders of oxygen,
between July 17 and September 14 that inventory dwindled to almost zero,
that after July 17 Burdox acquired from its Cleveland main depot ( Burdett)
additional oxygen cylinders of the specific variety needed by Irish to supply
Irish customers ; and that 2 weeks prior to the instant trial he had been
dispatched to Burdox's main Cleveland depot (Burdett) to pick up additional
cylinders needed by Burdox (or by Irish) because all available cylinders on
hand had been used by or for Irish-for the first time in his several years'
exizerience.
That this is a factor properly to be given weight in assessing credibility,
see Georgia Rug Mill, 131 NLRB 1304, 1305 at In 2, enfd. as modified 308
F.2d 89 (C.A. 5, 1962); Wirtz v B A C Steel Products, Inc, 312 F 2d 14,
16 (C.A. 4, 1963).
compensation to Burdox of these services rendered by Bur-
dox to Irish in consequence of the described change in
operations necessitated by Respondent's picketing of Irish's
operations and the desire of Burdox to maintain continuity
in the flow of merchandise to Irish notwithstanding Re-
spondent Union's strike and picketing.
It is further established, through testimony of Irish truck-
driver Metros, that since July 17 empty Irish (i.e., white)
cylinders have accumulated increasingly at the Irish prem-
ises ; that since September 14 (i.e., U.S. district court tempo-
rary injunction hearing date, pending outcome of which
union picketing was voluntarily held in abeyance) this accu-
mulation has decreased by one-half, with Irish removing
them to Burdox and Burdox trucks removing them to
Strate; that at no time prior to July 17 did he pick up filled
Irish oxygen cylinders at Burdox, but only at Strate; that
only rarely prior to July 17 did Irish use any Burdox (i.e.,
red) oxygen cylinders; and that at no time did he transport
empty Irish cylinders from Burdox to Strate. Testimony of
Irish truckdriver Parsons in the United States district court
injunction proceeding (Joint Exh. 1) corroborates the fore-
going in part.
Concessions by General Counsel witness Schaefer, Irish
truck dispatcher-counterman , during cross-examination,
and other proof establish that although prior to July 17 Irish
had through its own drivers and trucks picked up substan-
tially its entire oxygen cylinder supply directly at Strate, this
stopped on July 17; 13 that, basically, after July 17 Irish used
Burdox (i.e., red) rather than Irish's own (i.e., white) cylin-
ders since Strate was not filling such (i.e., Irish white) cylin-
ders for Irish after July 17 because of Respondent's labor
dispute with Irish; 14 and that since September 14 (i.e., vol-
untary abatement of picketing in connection with U.S. dis-
trict court temporary injunction proceeding), Irish cylinders
are again being filled at Strate, transported to and from
there only by Burdox (not Irish) drivers. Burdox Branch
Manager Lockmiller concedes that from July 17 to August
13, Burdox picked up Irish (as well as Burdox) cylinders at
Strate daily and conveyed them to Burdox premises.'5
Since July 17 Respondent Union has been picketing not
only at Irish, but also at Burdox on the occasions when Irish
employees load or unload cylinders there. Picket signs at
Burdox stated that "Burdox is an ally of Irish Welding
Supply. Local 375 is on strike against Irish." On August 14,
when Respondent Union commenced picketing at Strate
(with signs stating, "Burdox is an ally of Irish Welding
Supply who is on strike with [Local] 375 Teamsters") be-
cause Strate was filling Irish (white) cylinders for loading
13 Schaefer also testified that prior to July 17 Irish did not pick up Burdox
cylinders at Strate and drop them off or leave them at Burdox.
14 Schaefer explained that on two occasions after July 17, when Burdox
attempted to deliver Irish (i.e., white) cylinders to Strate, Strate was there-
upon again picketed
15 According to Lockmiller this procedure also prevailed prior to July 17,
although he concedes that prior to July 17 the percentage of Irish cylinders
picked up by Burdox at Strate was "very small ." Since it is undisputed that
Irish ceased picking up cylinders at Strate on July 17, it would seem that
whatever Irish cylinders were picked up at Strate after July 17 were picked
up by Burdox , there being no suggestion of such pickup by anybody else.
LOCAL 375, TEAMSTERS
onto Burdox trucks , 16 Burdox discontinued picking up Irish
(white) cylinders at Strate and the Union stopped picketing
at Strate .17 When Burdox subsequently (September 8) again
attempted to have Irish (white) cylinders filled at Strate and
loaded onto Burdox trucks , picketing of that operation at
Strate resumed until the filling and loading of Irish cylinders
there stopped . It is conceded that picketing at Strate was
restricted to occasions when white (i.e., Irish) cylinders were
transported and loaded there by Burdox (or just about to
arrive). When picketing voluntarily abated pending out-
come of the temporary injunction proceeding heard in U.S.
district court on September 14, Burdox pickup at Strate of
Strate-filled Irish cylinders resumed and has since contin-
ued.18 It is conceded that since September 14 a cognizable
portion of Burdox 's truckmen 's worktime has been and is
attributable to Burdox 's direct pickup at Strate and delivery
thence to Burdox 's premises of Irish cylinders.
At the trial , Burdox Branch Manager Lockmiller ex-
plained Burdox's July 17 change in operational methods
(i.e., delivery to and pickup at Strate of Irish cylinders by
Burdox instead of by Irish) as the result of Irish's:
... imminent labor problems ....To protect
Burdett 's interest . . . it behooved me to insulate
Strate , who is a union shop , from any possible labor
problems so that we could continue in business... .
We [Burdett] cannot live with that and neither can he
[Strate].
Lockmiller further explained at the trial that since Burdox's
business with Irish-comprising 40 percent of Burdox's to-
tal business-was stopped by the strike against Irish, Bur-
dox could not continue to exist if the situation was not
rectified and that Burdox was therefore interested in assur-
ing that the supply of compressed gas to Irish customers
continued uninterruptedly . Lockmiller also conceded that it
appeared by July 17 that the existing supply of Burdox
cylinders might not be sufficient for Burdox to supply Irish
in Burdox cylinders, without use of Irish cylinders.
16 Union President Clayton had warned Strate General Manager Grimes
on August 4 that the Union would picket Strate if Strate-deviating from
prior practice-filled Irish cylinders transported to and from Strate by Bur-
dox Clayton had explained to Grimes that the Union was striking Irish, that
the Union was picketing Burdox whenever Irish trucks entered Burdox's
premises , and that although the Union did not desire to picket Strate also,
it would do so through an ambulatory picket if Strate permitted Irish cylin-
ders to be delivered to and filled and picked up at Strate by Burdox.
17 There also was picketing on August 14 at the Burdox premises while an
Irish employee was there on Irish business It further appears that there was
also brief picketing on August 14 at the Lucidol premises adjoining the
Burdox plant, by an ambulatory picket pursuing an Irish truck parked in the
Lucidol parking lot and attempting to make a delivery there (Joint Exh. 1,
pp. 47 and 49-50), but that the picket left as soon as the truck left Counsel
for the General Counsel stated to Judge Curtin in the United States district
court injunction proceeding : "On August 8th when they were picketing at
Lucidol our position is that when Irish was present delivering gasses or dry
ice to Lucidol that it was permissible for [Local] 375 to picket as long as the
picketing wasn ' t violent or harassing or something of that nature" (Joint Exh
I, pp. 143-44) Counsel for General Counsel added , in response to a question
by the court , that no complaint exists as to the wording of the picket signs
(Id1
1 The application for a temporary injunction was denied by U.S District
Judge John T. Curtin on October 17 It is not known to me whether picketing
has resumed since then.
B. Discussion
489
When labor's right to assert economic power collectively
through striking and picketing peacefully for proper objec-
tives is invoked against a "primary" employer, resulting
aural relations and consequences are usually clearly perceiv-
able. But when those rights and powers are invoked so as,
by design or happenstance, to be leveled against or involve
"secondary" employers or persons not concerned "directly"
or at all in the labor dispute, difficult problems of balancing
and adjusting seemingly conflicting rights and interests may
arise . Comparing a primary strike to a secondary boycott is
like comparing a two-dimensional to a three- or four-dimen-
sional projection. So it is here, when a Union (Respondent),
having an assumedly legitimate labor dispute with an em-
ployer (Irish), sees fit to carry that dispute beyond the im-
mediate premises of the employer (Irish) to other locations
(Burdox, Strate, and Lucidol) at or through which the em-
ployer (Irish) carries on its struck operations-the employ-
er, if not to survive, at least to blunt the blow of the Union's
offensives; the Union, if not to survive, at least to parry the
counterthrust of the employer's removal of its business op-
erations from its own premises (or the employer 's change in
its usual operational methodology) in order to render the
strike and picketing ineffective if limited to those premises.
As long as a generation ago the Supreme Court, cautioning
that the secondary boycott proscriptions of Section
8(b)(4)(B) of the Act are not to be viewed with gunbarrel
vision, instructed that they reflect "the dual congressional
objectives of preserving the right of labor organizations to
bring pressure to bear on offending employers in primary
labor disputes and of shielding unoffending employers and
others from pressures in controversies not their own." N.L.
R. B. v. Denver Building and Construction Trades Council, 341
U.S. 675, 692 (1951).
It flows from what has been said that the amehoratory
provisions of the Act, purposed to "shield[ing] unoffending
employers . . . . from pressures in controversies not their
own," are designed to protect neutrals, not to assist active
partisans.19 It is our task, "more nice than obvious" (Frank-
furter, J., in Local 761, IUE v. N.L.R.B., 366 U.S. 667, 674
(1961) ), in cases such as this, to attempt to reconcile the
described "dual congressional objectives" fairly and rea-
sonably, even though not demarcated by "a glaringly bright
line" (id. at 03).
In this case, Respondent Union, having a labor dispute
with Irish, was entitled to bring lawful pressure directly
upon Irish in connection with that dispute. No issue is pre-
sented here concerning the legality of the pressures-strike,
picket, or otherwise-levelled by the Union against Irish at
Irish premises. It is only the Union's picketing elsewhere
that is brought into question here. Compare N.L.R.B. v.
International Rice Milling Co., 341 U.S. 665, 672-73 (1951),
with N. L.R.B. v. United Brotherhood of Carpenters, etc., Dis-
19 Judge Learned Hand's noted observation that the thrust of secondary
boycott activity is against a third party "who has no concern " in the primary
dispute (International Brotherhood of Electrical Workers, Local 501 v N.L R
B, 181 F 2d 34, 37 (C.A 2, 1950) affd 341 U.S 694 (1951)) may scarcely
be deemed applicable to a third party who either does have a concern in or
who concerns himself with the primary dispute
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trict Council of Kansas City, Mo., 184 F .2d 60 (C.A. 10), cert.
denied 341 U.S. 947 (1950). In considering the legality or
illegality of the Union 's picketing elsewhere than at Irish
premises , it is necessary to bear certain facts particularly in
mind , within the frame of reference of all of the facts shown.
These are , that the Union 's picketing at Burdox was re-
stricted to occasions when Irish cylinders were being deliv-
ered to or picked up at Burdox ; that Burdox knowlingly and
deliberately , on and after July 17, and by agreement with
Irish , initiated and continued a substantial variation in their
prior mode of business-namely , delivery and pickup by
Burdox , instead of by Irish, of Irish cylinders at Strate; that
the Union 's picketing at Strate was likewise restricted to
occasions when Irish cylinders were being delivered to or
picked up at Strate (by Burdox); and that Strate was placed
on express advance notice and warning by the Union that,
in view of its strike against Irish , filling and delivery of Irish
cylinders by Strate after July 17 (when Irish ceased deliver-
ing them to or picking them up at Strate ) would result in
picketing at Strate of such activity on such occasions.
It thus appears that in picketing at Burdox and Strate, on
such occasions only when Irish cylinders were being trans-
ported to and from and filled at those locations , the Union
was merely pursuing the struck work formerly performed by
its members for Irish. To this extent , it may be said to have
engaged in a primary picket of Irish rather than in a second-
ary boycott of Burdox or Strate . Beyond this , however,
considering the fact that the ambulatory picketing, on the
restricted occasions indicated , took place at or near prem-
ises of others than Irish-i.e., Burdox , Strate , and Lucidol 20
-there is no indication or contention that it did not com-
port with the offsite picketing guidelines established by the
Board in Sailors ' Union of the Pacific, AFL (Moore Dry Dock
Company), 92 NLRB 547 (1950).
Perhaps most significant , in evaluating the qualitative
thrust of the Union 's picketing activity in relation to the
basic question of whether or not it unfairly enmeshed Bur-
dox or Strate as innocents into a "controvers [y] not their
own" (Denver Building, supra) with which they "ha[d] no
concern" (IBEW v. N. L. R. B., supra), are the facts showing
that their involvement in the labor dispute between Irish
and the Union was of their own making and choice, de-
signed as a rescue operation in aid of Irish , a beleaguered
customer . This hardly qualified them as innocent victims of
a "controversy not their own" or in which they "had no
concern ." On the contrary, they made the controversy their
own and created a concern in it. The deliberate substitution
of pickups and deliveries by Burdox for Irish at Strate, on
and after July 17 (when Irish drivers ceased calling at Strate
and Strate ceased servicing them there ) constituted a valu-
able service by Burdox for Irish ,21 potentially sufficient to
"break" the Union's strike against Irish. Burdox thereby
20 As to Lucidol, the lone, brief incident involving that company-not a
charging party or witness herein-has been described above I do not believe
that isolated episode may fairly be regarded as other than de minimis at best,
in any event not warranting a remedial order
2i Since, as established by the evidence, Irish is legally indebted to and will
be required to pay Burdox for the extra haulage-i.e, of Irish cylinders to
and from Strate-performed since July 17 by Burdox for Irish, it can scarcely
be disputed that this was work performed by Burdox on behalf of Irish and
that by doing this work for Irish Burdox allied itself with Irish so as to avoid
the economic loss to Irish (as well as to Burdox ) which would have ensued
took sides , becoming an ally of Insh against the Union,
deliberately placing itself into the line of fire where it as well
as Irish could be within the foreseeable ambit of the Union's
lawful picketing activity against the struck work. The fact
that Burdox was motivated in part or whole by self-interest
(i.e., desire to avoid diminution of its business with Irish)
does not alter this: allies normally have interests in com-
mon, and an ally should not be exempted from the conse-
quences of his actions in promotion of the alliance's purpos-
es. The July 17 change in previously established operational
methodology, by Burdox in alliance with Irish, for no rea-
son other than the strike and picketing activity, was deliber-
ately designed and calculated to blunt if not frustrate the
object and force of the Union's strike against Irish. It there-
fore justifiably subjected the activities of the alliance in its
furtherance, to countervailing picketing action by the
Union. In short, the Union did not enmesh the Charging
Parties in its dispute with Irish; on the contrary, the Charg-
ing Parties embroiled themselves. It follows that, under the
circumstances shown, picketing by the Union, in the re-
stricted form here pursued, was lawful and proper 22 Cf.
N.L.R.B. v. Business Machine Mechanics Local 459 (Royal
Typewriter Co.), 228 F.2d 553 (C.A. 2, 1955), cert. denied 351
U.S. 962 (1956), Douds v. Metropolitan Federation of Archi-
tects Local 231 (Ebasco), 75 F.Supp. 672 (1948) (D.C.N.
y.) .21
from Irish's own inability to perform it because of the strike against Irish
In so allying itself on the side of Irish against the Union , Burdox lost whatev-
er protection it might otherwise have had under the Act through claim of
status as an innocent "secondary" victim of the Union 's picketing of
Burdox's elected substitute activities on behalf of Insh.
22 Findings here render it unnecessary to determine whether Burdox's
attempted delivery, on or about July 17, of Irish cylinders to Ashland Oil
Company, a customer of Irish, under circumstances described above, would
alone and of itself have constituted Burdox an ally of Irish so as to justify
extension of the Union 's picketing to Burdox
This case does not present , nor therefore do I decide , the issue of whether
the Union could lawfully picket at Burdox or Strate during the transportation
and filling of Burdox (red) cylinders provided by Burdox in substitution for
Irish (white ) cylinders-if, indeed , it would be feasible to attempt to ascertain
the extent to which Burdox (red) cylinders were intended for Irish as distin-
guished from other Burdox customers . Cf. Local 810, Steel, Metals, Alloys,
and Hardware Fabricators (Fein Can Corporation), 131 NLRB 59, enfd. 299
F 2d 636 (C A 2, 1962)
23 I view Western States Regional Council No 3, International Woodworkers
(Priest Logging, Inc), 137 NLRB 352, enfd. 319 F.2d 655 (C.A. 9, 1963 ), relied
upon by General Counsel, as inapposite . There-unlike here-the second-
arily picketed employer (an upriver commercial storage dump) merely pas-
sively stored logs (which it unloaded at its dump) for the struck primary
employer (a sawmill) to remain there in dead storage until the end of the
strike; it did not-as here-through deliberate design and execution of a new
method of operations , actively assist the struck primary employer to carry on
its business during the strike so as directly to break and overcome the eco-
nomic impact of the primary strike . Act Coauthor Taft stated of the second-
ary boycott- "The spirit of the Act is not intended to protect a man who
.. is cooperating with a primary employer and taking his work and doing
the work which he is unable to do because of the strike " (95 Cong. Rec. 8709
(1947) ).
Nor is the argument-anticipated in Respondent 's brief, but unstressed by
General Counsel-that the contract between Irish and Burdox provided for
prices f.o .b. Burdox's premises , controlling , since that contract does not
mandate place of delivery, and "f o.b." establishes price but not necessarily
place of delivery Moreover , we cannot ignore the realities of the situation
here It is the parties' actual practice-prior to the change on July 17; i.e.,
pickups and dropoffs of Irish (white) cylinders by Irish at Strate-and not
the technical contract terms, which are controlling As Judge Rifkind pointed
out in Metropolitan Architects, supra at 676, we cannot "look at the form and
remain blind to substance"
The Charging Parties' contention that they only changed their method of
operation merely states the question presented, without answering it
LOCAL 375, TEAMSTERS
Upon the basis of the foregoing findings and the entire
record, I state the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. The facts as found fail to establish that Respondent
has violated Section 8(b)(4)(i) or (ii)(B) of the Act as alleged
in the consolidated complaint.
3. The consolidated complaint should in all respects be
dismissed.
ORDER 14
491
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, it is hereby ordered that the consolidated complaint
herein, dated September 1, 1972, be, and it hereby is, dis-
missed.
24 In the event no exceptions are filed as provided by Section 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order which follows herein shall, as provided
in Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto shall
be deemed waived for all purposes