Local 445, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Dec 5, 1963

145 N.L.R.B. 263 (N.L.R.B. 1963)

LOCAL 445, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 263
Local 445, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Colony Liquor
Distributors, Inc., Colonial Carriers, Inc. Case No. 3-CP-44.
December 5, 1963
DECISION AND ORDER
Unfair labor practice charges were filed on December 12, 1962, by
Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., re-
ferred to collectively as Colony, against the Respondent, Local 445,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Thereafter, on January 4, 1963, the Gen-
eral Counsel of the National Labor Relations Board, by the Regional
Director for the Third Region, issued a complaint and notice of hear-
ing, alleging that Respondent had violated Section 8(b) (7) (B) of
the Act by picketing Colony at its place of business in Kingston, New
York, for recognitional and organizational purposes, within 12 months
after a valid election had been held pursuant to Section 9(c). On
January 10, 1963, Respondent filed an answer denying the commission
of any unfair labor practices, and alleging affirmatively that its pick-
eting was part of a campaign requesting the public not to patronize
Colony.
On March 5, 1963, the parties entered into a stipulation by which
they waived a hearing before a Trial Examiner and the issuance by
him of an Intermediate Report and Recommended Order, and agreed
to submit the case to the Board for findings of fact, conclusions of
law, and an order, based upon a record consisting of the charge, the
complaint, the answer, and the stipulation, including certain testi-
mony adduced at an injunction proceeding in the United States Dis-
trict Court, Southern District of New York, pursuant to Section
10 (1) of the Act.
On March 11, 1963, the Board granted the motion of the parties and
transferred the case to itself. Thereafter, the Respondent filed a
brief.'
Upon the basis of the stipulation, the brief, and the entire record in
the case, the Board 2 makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF COLONY
Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., are
affiliated businesses, together constituting a single integrated business
1 We deny Respondent's request for oral argument because, in our opinion , the record
and Respondent 's brief adequately set forth the issues and the positions of the parties
2 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman McCulloch and
Members Leedom and Fanning]
145 NLRB No. 28.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enterprise, with principal offices in Kingston, New York. Colony
Liquor is a wholesale distributor of wines and liquors, and Colonial
Carriers performs trucking and related services for Colony Liquor.
During the year preceding the issuance of the complaint, Colony Liq-
uor received from outside the State, wines, liquors, and other products
valued at more than $500,000, and Colonial Carriers performed truck-
ing and related services for Colony Liquor valued Fat more than
$50,000.
H. THE LABOR ORGANIZATION INVOLVED
Local 445, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent has represented Colony's drivers, warehousemen, and
helpers over a period of 15 years. The last collective-bargaining con-
tract between the parties expired January 1, 1962. After extended
negotiations for a new contract, Respondent struck Colony and began
picketing June 1, 1962, with "On Strike" signs. Colony thereupon
hired permanent replacements for the striking employees. On July
2, 1962, Colony filed a representation petition (Case No. 3-RM-260),
seeking an election to determine whether its drivers, warehousemen,
and helpers desired to be represented by Respondent. A hearing
pursuant to Section 9 (c) (1) of the Act was held on the issues raised
by the petition, and on September 6, 1962, the Regional Director for
the Third Region issued an unpublished Decision and Direction of
Election. Respondent filed with the Board a timely request for review
of the decision, which was denied.
On October 2, 1962, Respondent filed an unfair labor practice charge
against Colony, alleging violation of Section 8 (a) (1) and (5) of the
Act. The charge was dismissed by the Regional Director, prior to the
conduct of the election, on the ground that Respondent had failed to
establish that it represented a majority of the employees in an ap-
propriate unit. Respondent did not appeal the dismissal.
On October 4, 1962, an election was duly conducted pursuant to the
Direction of Election. Of the 26 ballots cast, 11 votes were for rep-
resentation by the Respondent, while 15 employees voted against repre-
sentation.3 On October 9, 1962, the Regional Director issued a Sup-
a Buckley , a salesman for Colony and its observer at the election , testified that after the
ballots were counted , Daly, secretary -treasurer of the Respondent , said in substance-
You may have won the election , but we are not finished yet. We will beat you.
If necessary , we will put you out of business
In accordance with the stipulation of the parties , we credit the foregoing testimony of
Buckley, which was adduced at a hearing before a U . S. district court on a petition for
an injunction under Section 10(1) of the Act.
LOCAL 445, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 265
plemental Decision dismissing Respondent's objections to the election
and certifying the results thereof. Respondent continued to picket
Colony's premises until expiration of its appeal period on October 19,
1962, claiming to be on strike. It did not file an appeal from the
Supplemental Decision.
When picketing ended on October 19, Respondent, in a letter to
Colony, disclaimed further interest in representing Colony's em-
ployees, but stated that its membership was pledged to a campaign to
inform the public that Colony had defeated Respondent by hiring
strikebreakers and that Colony was using nonunion employees. Since
this letter, there have been no further oral or written demands by
Respondent upon Colony, except for what may be implicit in the later
picketing described below.
On December 10, 1962, Respondent resumed picketing at Colony's
premises. One or two men picketed each workday during business
hours, carrying signs bearing the following legend :
To The Public Only
Colony Liquor Distributors, Inc.
and Colonial Carriers, Inc.
Have No Contract With
Local 445, IBT
They Do Not Employ
Union Members Here
Please Do Not Patronize
Thank You
Teamsters Union
Local 445
The picketing continued until enjoined by order of the United States
district court, entered January 21,1963'
In addition to the picketing at Colony's premises between Decem-
ber 10, 1962, and January 21, 1963, Respondent has also, at all times
material herein, distributed to the public on parking lots and city
streets leaflets containing the following message :
Colony Liquor Distributors, Inc., and Colonial Carriers, Inc.,
is a union buster. They fired all their long-time union employees
and now have no contract with Local Union 445, IBT. Please
do not purchase the following brands which they distribute.
The leaflet lists certain brands of liquor which Colony distributes to
retail establishments.
Respondent concedes that it is not the collective-bargaining rep-
resentative of Colony's employees and that it has engaged in picketing
4 Vincent v . Local 445 , 62 Civil 4230, U.S.D.C S D.N.Y.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the premises of Colony within a year of a valid election. It contends,
however, that its picketing was solely in furtherance of its campaign to
persuade the public to withdraw its patronage from Colony, and
argues that since it has not been shown that the picketing has organi-
zation or recognition as objects, it has not violated Section
8(b) (7) (B).5
Respondent does not urge that its picketing between December 10,
1962, and January 21, 1963, is permitted under Section 8(b) (7) (B)
merely because its picket signs are in the language of the proviso to
Section 8(b) (7) (C), relating to advising the public truthfully that
Colony does not employ members of, or have a contract with, it.6 Its
argument is, rather, that the General Counsel must establish that an
object of its picketing is organizational or recognitional by other
evidence than the picketing itself.
It is, of course, incumbent on the Board to determine what the objects
of picketing are from all the relevant circumstances including the
information communicated during all the picketing incidents, the
changes in the picket signs following an election which the union has
lost, the alleged commission of unfair labor practices by the em-
ployer being picketed, the nature of demands by the union of the
employer both before and after an election, and other evidence as to
whether a union's former object of organization or recognition has
been abandoned, although picketing continues.' But in all such deter-
minations, the picket sign legend used during the alleged illegal picket-
ing is a factor to be considered. Thus, it cannot be a defense to a
charge of violation of Section 8(b) (7) (B) that the picketing is
truthful or is merely to seek public support for a nonpatronage cam-
paign if the information which the union is communicating to the
public through its signs itself establishes a proscribed object.
Section 8(b) reads , in pertinent part, as follows.
(b) It shall be an unfair labor practice for a labor organization or its agents--
( * * * * * *
(7) to picket or cause to be picketed . . . any employer where an object
thereof is forcing or requiring an employer to recognize or bargain with a labor
organization as the representative of his employees , or forcing or requiring the
employees of an employer to accept or select such labor organization as their
collective bargaining representative, unless such labor organization is currently
certified as the representative of such employees.
(B) where within the preceding twelve months a valid election under
section 9 (c) of this Act has been conducted . .
0 It is well established that the informational proviso to Section 8 ( b) (7) (C) furnishes
no defense in an 8 ( b) (7) (B) case. Retail Store Employees ' Union. Local No 692, etc
(Irvins, Inc ), 134 NLRB 686; Local No. 182, International Brotherhood of Teamsters,
etc (Woodward Motors, Inc .), 135 NLRB 851; Retail Clerks Union Local 324, etc ( Barker
Bros Corp and Gold 's, Inc ), 138 NLRB 478.
7Retail Store Employees Union , Local 692 , etc. (Irvins , Inc ), supra ; American Federa-
tion of Grain Millers etc. (Bartlett and Company , Grain ), 141 NLRB 974 ; Carquinez
Lodge No 1492 International Association of Machinists , AFL-CIO (Firestone Tire),
139 NLRB 1477
LOCAL 445, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 267
In the instant case we may grant that an object of the picketing
was to persuade the public to withdraw its patronage from Colony.
But this is not inconsistent with the broader organizational or ultimate
recognitional objectives that the langauge of the picketing signs imply.
The picket signs themselves reflect that Respondent's specific reason
for appealing to the public to withhold patronage from Colony was
that Colony did not employ union members and did not have a contract
with it. From this it is apparent that Respondent itself considered
that its quarrel with Colony was one that would cease when that reason
for picketing was no longer valid-in short, when Colony again em-
ployed union members or entered into a contract with it. As bearing
on Respondent's picketing objectives, we consider also material the
remark-quoted above-of Respondent's official, Daly, when the elec-
tion results were announced, that Colony may have won the election
but that the Respondent would beat it yet, if necessary, by putting
Colony out of business. We think this further discloses that a target
of the picketing was to impose economic pressure on Colony in order
to "beat" Colony into a choice of either again recognizing the Union
or facing the destruction of its business.
Under all the circumstances, we conclude, as alleged in the com-
plaint, that Respondent's picketing was for statutorily proscribed ob-
jectives, and since it occurred within a year of the valid election on
October 4,1962, it was violative of Section 8 (b) (7) (B).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with the operations of Colony, 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action that we find necessary to effectuate the
policies of the Act. The Board has decided that in remedying viola-
tions of Section 8(b) (7) (B) the remedial order shall require a cessa-
tion of all recognitional and/or organizational post-election picketing
for a period of 12 months, to be computed from the date the labor
organization ceases its unlawful picketing, whether voluntarily or
involuntarily.8 Since the Respondent picketed unlawfully until en-
joined on January 21, 1963, our cease and desist order shall run for
a period of 1 year from January 21, 1963. We shall also require the
8 Retail Store Employees Union Local 699, etc. ( Irvans, Inc ), supra.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent, thereafter, to refrain from engaging in recognitional
and/or organizational picketing of Colony where within the preceding
12 months a valid election shall have been conducted.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, we make the following :
CONCLUSIONS OF LAW
1. Colony Liquor Distributors, Inc., and Colonial Carriers, Inc.,
are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent is a labor organization within the meaning of Section
2 (5) of the Act.
3. By picketing Colony from December 10, 1962, until January 21,
1963, with an object of forcing or requiring Colony to recognize and
bargain with the Respondent as the collective-bargaining representa-
tive of Colony's employees, and/or of forcing or requiring Colony
employees to accept and select the Respondent as their collective-
bargaining representative, although the Respondent was not currently
certified as such representative, and a valid election under Section 9 (c)
of the Act had been held within the preceding 12 months, the Re-
spondent engaged in unfair labor practices within the meaning of
Section 8(b) (7) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 445, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and representatives, shall :
1. Cease and desist from :
(a) Picketing, or causing to be picketed, or threatening to picket,
Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., Kings-
ton, New York, for a period of 1 year from January 21, 1963, where
an object thereof is to force or require Colony Liquor Distributors,
Inc., and Colonial Carriers, Inc., to recognize or bargain collectively
with the Respondent or to force or require the employees of Colony
Liquor Distributors, Inc., and Colonial Carriers, Inc., to accept or
select the Respondent as their collective-bargaining representative.
(b) Picketing, or causing to be picketed, or threatening to picket,
Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., for any
of the above-mentioned objects, where within the preceding 12 months
LOCAL 445, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 269
a valid election under Section 9 (c) of the Act has been conducted which
the Respondent did not win.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(a) Post in conspicuous places in the Respondent's business offices,
meeting halls, and places where notices to its members are customarily
posted, copies of the attached notice marked "Appendix." 9 Copies of
said notice, to be furnished by the Regional Director for the Third
Region, shall, after being duly signed by an official representative of
the Respondent, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Third Region signed
copies of the aforementioned notice for posting by Colony Liquor
Distributors, Inc., and Colonial Carriers, Inc., if they are willing, in
places where notices to employees are customarily posted. Copies of
said notice, to be furnished by the aforesaid Regional Director, shall,
after being signed by the Respondent as indicated, be returned forth-
with to the Regional Director for dispositionby him.
(c) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken to comply herewith.
0In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 445, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA AND TO ALL EMPLOYEES OF COLONY LIQUOR DISTRIBUTORS,
INC., AND COLONIAL CARRIERS, INC.
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify you that :
WE WILL NOT, for a period of 1 year from January 21, 1963,
picket, or cause to be picketed, or threaten to picket, Colony
Liquor Distributors, Inc., and Colonial Carriers, Inc., where an
object thereof is to force or require Colony Liquor Distributors,
Inc., and Colonial Carriers, Inc., to recognize or bargain collec-
tively with us, or its employees to accept or select us as their
collective-bargaining representative.
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, Colony Liquor Distributors, Inc., and Colonial Carriers,
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., where an object thereof is to force or require Colony Liquor
Distributors, Inc., and Colonial Carriers, Inc., to recognize or bar-
gain collectively with us, or its employees to accept or select us as
their collective-bargaining representative where a valid election
which we did not win has been conducted by the National Labor
Relations Board among the employees of Colony Liquor Distribu-
tors, Inc., and Colonial Carriers, Inc., within the preceding 12
months.
LOCAL 445, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Fourth Floor, the 120 Building, 120 Delaware Avenue, Buffalo,
New York, Telephone No. TL 6-1782, if they have any question con-
cerning this notice or compliance with its provisions.
LaRonde Bar & Restaurant, Inc. and/or Carrousel Motels, Inc.'
and Cincinnati Joint Executive Board , Hotel & Restaurant
Employees & Bartenders International Union , AFL-CIO,'
Petitioner. Case No. 9-RC-5449. December 5, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer Alan D.
Greene. The Hearing Officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act 3
1 At the hearing and in the brief LaRonde Bar & Restaurant , Inc., moved to dismiss the
petition as to itself on the ground that it does not employ any of the employees herein.
The record shows that LaRonde owns certain personal property which it leases to Carrousel
for the conduct of the latter ' s hotel and restaurant business . All restaurant and motel
employees are the employees of Carrousel . Under the circumstances , we find that LaRonde
is not a necessary party to this proceeding . Accordingly , we hereby dismiss the petition
as to LaRonde.
' The name of the Petitioner appears as amended at the hearing , and is also referred to
herein as the Excutive 'Board.
3 Floridan Hotel of Tampa, Inc ., 124 NLRB 261.
145 NLRB No. 31.