Local 505, Int'l Brotherhood of Teamsters, Etc.Download PDFNational Labor Relations Board - Board DecisionsMar 17, 1961130 N.L.R.B. 1438 (N.L.R.B. 1961) Copy Citation 1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent was the employer ; it was said employer which had failed to post the required notice ; and it was that employer which was found to have violated Section 8(a)(3) and (1) of the Act, albeit in such a way that the Board adopted the Trial Examiner's recommendation that "the Brown-Olds remedy not be applied 46 If, in the case at bar on the point now in issue , fMiller-Karr, rather than the Local, were the respondent , the Harbur Terminal decision would constitute precedent. But I cannot see how that decision can constitute precedent for the actual situation herein, since it is essentially the wrong party which the Board is asked to judge. While this phase of the instant matter is not free from doubt , it is my considered judgment , in view of behavior of the Employer which need not be belabored , that to find the Local guilty of violation - of Section 8(b)(1)(A) and (2 ) of the Act, pri- marily, if not solely , because of the failure of the Employer to live up to its obliga- tion under its agreement with the Local, when the Employer is not also before the Board as a respondent at least to share the burden of guilt and remedy,47 would be inequitable and would not effectuate the purposes of the Act. Accordingly, and only after having given this matter much thought , it will be recommended that the allegation of the complaint now under consideration also be dismissed. (Recommendations omitted from publication.] '8 See Harbur Terminal Company, 126 NLRB 659, footnote 2. 47 See Peterson Construction Corp. , et al. , 128 NLRB 969 , for the opinion of the majority .of the Board as to what "a legitimate exercise of the General Counsel's duty" will permit. Local Union No . 505, International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers of America , Granville Camp, Paul Gibson , Nelson McCallister, Wayne Ellis, Clovis Walker, Jr., Tim Nelson , its agents and Carolina Lumber Company. Case No. 9-CC-273. March 17, 1961 DECISION AND ORDER On August 15, 1960, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and had not engaged in others, and recommending that they cease and desist from the unfair labor practices found and take certain affirma- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondents and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Carolina Lumber Company also filed a brief. 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 Inter- mediate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as modified herein. The Facts of the Dispute Carolina Lumber Company, herein called Carolina, is involved in a labor dispute with Respondent Local Union No. 505, International 130 NLRB No. 148. LOCAL 505, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1439 Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. On June 16, 1960, Carolina 'delivered a load of flooring to Persun Construction Company, herein called Persun, which was engaged in construction work at Marshall College in Huntington, West Virginia. The Union's agents, striking employees Ellis, McCallister, and Walker, followed Carolina's truck to the construction site and, after arriving there, went to an upper floor of the job and spoke to some carpenter employees of Persun who were to work with the lumber. They asked these employees, "Are you going to use the material?" When no answer was forth- coming they said, "If you do, our jobs is sunk." No further state- ments were made. When the lumber was made available, the car- penters used it without delay. Shortly after speaking with the carpenters, the three striking em- ployees named above returned to the ground floor where they ap- proached Andy Clay, a labor foreman with Persun, who was in charge of moving and handling the flooring. They told Clay, "You know it's wrong to handle that flooring. You will bust our union if you handle it." Thereupon Clay instructed his crew to stop handling the flooring, while he tried to contact his business agent for further in- struction. Clay was unsuccessful in his attempts to talk with his business agent. After approximately a 2-hour delay, he and his crew took the flooring to the carpenters, who immediately began to use it. On June 13, 1960, one of Carolina's trucks made a delivery of lum- ber to Catalytic Construction Company, which was building an addi- tion to the South Point, Ohio, plant of Allied Chemical Corporation. Catalytic is a Pennsylvania corporation with its home office in Philadelphia. Paul Gibson, a striking employee of Carolina, fol- lowed the truck and was stopped at the project gate by a guard who phoned Travis Bufkin, Catalytic's project superintendent. Bufkin, who received the call in his field office at the project, was told by the guard that "We have a picket 1 from the Teamsters' Union out here that has followed this lumber truck into the plant." Bufkin spoke to the man (Gibson) on the phone and asked what was the matter. Gibson answered that there was a strike going on against Carolina. Bufkin immediately called Granville Camp, the Teamsters business agent, who corroborated Gibson's statement that Carolina was on strike. Regarding the lumber; Camp told Bufkin that, although he would not object to it, "he would rather that he (Bufkin) didn't use it." Thereupon Bufkin, on his own authority, refused to use the lum- ber stating that he "didn't want any part of somebody else's union problems." . 3 This term was used merely to identify the person following the truck , and not in a descriptive sense. 1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Findings of Trial Examiner The Trial Examiner found 2 that the Union had violated Section 8(b) (4) (i) (B) of the Act when it approached Andy Clay and his crew and induced them to stop handling Carolina's lumber, with the purpose of requiring Persun to cease doing, business with Carolina. However, the Trial Examiner found that the Union did not violate that section of the Act with respect to the statements made to Persun's carpenters, as no work stoppage occurred. He further found that Travis Bufkin was not an "individual" within the meaning of Sec- tion 8(b) (4) (i) (B) of the Act, and therefore that no violation.cwas committed by inducing him to refuse to use Carolina's lumber. Contentions The General Counsel contends 3 that the appeal addressed to the carpenter employees of Persun is inducement or encouragement viola- tive of Section 8 (b) (4) (i) (B) of the Act regardless of the success or failure of such inducement. The General Counsel further contends that Travis Bufkin is an "individual" within the meaning of Section 8(b) (4) (i) (B) of the Act, and that the Union violated the Act by inducing him to refuse Carolina's lumber. Discussion : Regarding the Union's statements to Persun's carpenter employees, the Trial Examiner found that there was no unlawful inducement be- cause it was unsuccessful. The Board, with the approval of. the courts, has long held that success of failure of inducement is im- material to the finding of 8 (b) (4) violations 4 Accordingly, we hereby overrule the Trial Examiner and find that the Union violated Section 8(b) (4) (i) (B) of the Act by the statements made to Persun's carpenter employees. The disagreement between the Trial Examiner and the General Counsel as to the meaning of the term "individual" in Section 8(b) (4) (i) (B) of the Act raises an important question . Section 8(b) (4) (A) of the Taft-Hartley Act provided: 2 The complaint alleged an additional 8(b) (4) (i) (B) violation with respect to a delivery of lumber to the Kenova Church project. The' Trial Examiner found no violation of Section 8(b) (4) (i) (B) in this incident and no exceptions were filed to this finding. Accordingly, we adopt the Trial Examiner's finding with respect thereto pro forma. 8 The Board agrees with the Trial Examiner in finding no merit in the General Counsel's contention that Section 8(b) (4) (ii) (B) of the Act had been violated by the Union with respect to Persun Construction Company as there is no evidence that Persun was "threatened, coerced, or restrained" within the meaning of that section of the Act. 'Local 1016, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; et al. (Booher Lumber Co., Inc.), 117 NLRB 1739, 1747, enfd. 273 F. 2d 686 (C.A. 2) ; Local 11, United Brotherhood of Carpenters & Joiners of America, AFL, at al. (General Millwork Corporation), 113 NLRB 1084, 1086, enfd. 242 F. 2d 932 (C.A. 6). LOCAL 505,.INT'L BROTHERHOOD-OF TEAMSTERS, ETC. 1441 It shall be an unfair labor practice for a labor organization or its agents- (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the the course of their 'employment to',use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is : (A) forcing or requiring any employer or self-employed per- son to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, proces- sor, or manufacturer, or to cease doing business with any other person. The above Section 8(b) (4) (A) was held not to be applicable to inducement of supervisors because they were not employees within the meaning of the Act, and further, that section was held not to apply to the inducement of farm, railway, or public employees for the same reason .5 The new Section 8(b) (4) (i) (B), intended to re- place the above Section 8 (b) (4) (A), reads : It shall be an unfair labor practice for a labor organization or its agents- (4) (i) to engage in, or to induce or encourage any indi- vidual employed by any person engaged in commerce or in an industry affecting commerce-.to engage in, a strike' or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry, affecting commerce, where in either case an object thereof is : * * * * * * * (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manu- facturer, or to cease doing business with any other per- son, or forcing or requiring any other employer to recog- nize or bargain with a labor organization as the ,5 Sheet..Metal Workers International Association, Local Union No. 28 (Ferro-Co Corpo- ration ), 102 NLRB 1660 ( supervisors) ; W. T. Smith Lumber Company, 116 NLRB 1756, reversed 246 F. 2d 129 (C .A. 5i (railroad employees ) Paper Makers Importing Co., Inc., et at ., 116 NLRB 267 ( municipal employees). . 597254-61-vol . 130-92 1442 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of his employees unless such labor organi- zation has been certified as the representative of such employees under the provisions of section 9. . . . [Em- phasis supplied.] That the new law bars inducement of a broader category of em- ployed persons that the old is at once apparent from a reading of the new section which substitutes "any individual employed by any per- son" in 8(b) (4) (i) for the "employees of any employer" as used in the old 8 (b) (4). How much broader is, however, a question not answered by the statutory language. To determine the extent of that coverage, an examination of the pertinent legislative history is therefore necessary. At the time the Landrum-Griffin bill was introduced in Congress Representative Griffin, one of its sponsors, submitted a statement in which he said that "supervisors" were included with "farm laborers" and "railway labor" as being in that class of employed persons the inducement of whom was to be outlawed under Section 8(b) (4) (i).6 After the House adopted the Landrum-Griffin bill and sent it to conference, Senator Kennedy with Representative Thompson, his con- ference associate, submitted a joint analysis of the secondary boycott provisions of the House bill favoring the suggested change in 8(b) (4) (i). In particular reference to supervisors they stated: I In some industries supervisors belong to the union of the rank- and-file workers or as ex-members are sympathetic to it. Occa- sionally a union has induced the supervisors of a secondary employer to refuse to handle the goods of some primary em- ployer with whom the union had a dispute. This conduct causes a true secondary boycott but it does not violate section 8 (b) (4) (A) because section 8 (b) (4) (A) forbids only the in- ducement of "employees" and supervisors are not "employees" within the statutory definition. The House bill would extend the prohibition to inducement of supervisors. The present omission is an illogical loophole which should be closed if any legislation dealing with secondary boy- cotts is enacted. The substance of the House bill is therefore acceptable upon this issue. Similarly Senator Morse, in commenting on the Landrum-Griffin bill, stated with reference to 8 (b) (4) (i) : s 8 NLRB Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (hereinafter referred to as Legis. Hist.), vol. IT, pp . 1522-1523. 7 Legis. Hist., vol. II, pp. 1706-1707. 8 Legis. Hist., vol. IT, pp. 1425-1426. LOCAL 505, INT'L BROTHERHOOD OF TEAMSTERS ,, ETC. 1443 There are many instances also where a secondary boycott is con- ducted by a union agent going to a supervisor of employees, who often is a union member, and inducing him to shut off deliveries. Since the supervisor is subject to union discipline, such induce- ment would be clearly as effective as though inducement were applied to employees, themselves. To close these loopholes would seem to me to have been important legislation in this field. The above-quoted legislative history indicates that among the class of individuals to be insulated from "inducement" are supervisors who, although they are management's representatives at a low level,.are through their work, associations, and interests still closely aligned with those whom they direct and oversee. There are additional statements in the legislative history which indicate that only inducement of low level supervisors was meant to be outlawed by 8 (b) (4) (i).9 In addition, the broad reading of "indi- vidual employed by any person" urged by the General Counsel would render 8(b) (4) (ii) largely superfluous. The latter refers to threats, restraint, and coercion of "any person." To threaten a person is to induce him. Accordingly, if "individual employed by any person" refers to all managerial officials, irrespective of placement in the hier- archy, the specific outlawing of coercive tactics was unnecessary. Any interpretation of the statute is to be avoided which would make one section of the Act meaningless.10 We believe that the two sections are in fact reconcilable. As indicated by the legislative history, the term "individual employed by any person" in 8(b) (4) (i) refers to supervisors who in interest are more nearly related to "rank-and-file employees" than to "management," as the term is generally under- stood. On the other hand, the term "person" as used in 8(b) (4) (ii) would seem to refer to individuals more nearly related to the man- agerial level. So construed 8(b) (4) (i) would outlaw attempts to induce or encourage employees and some supervisors, to achieve the objectives proscribed by 8(b) (4). Similar attempts to induce or en- courage others more nearly related to the managerial level for the same objectives would be lawful. However, if in the latter case the labor organization went beyond persuasion and attempted to coerce such managerial officials to accomplish the proscribed objectives, it would violate 8(b) (4) (ii). This leaves for determination whether in- a given case inducement was directed at a supervisor who is an "individual employed by any person" within the meaning of 8(b) (4) (i). No single across-the- board line on an organization chart can be drawn to determine in every case whether a supervisor is an "individual employed by any person." The authority and position of supervisors vary from com- 9 Legis . Hist ., vol. I, p . 965; vol . II, p. 1823, 1841. 20 Armstrong Paint & Varnish Works v. Nu -Enamel Corp ., 305 U.S . 315, 333. 1444 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany to company. It will therefore be necessary in each case in deter- mining this question to examine such factors as the organizational setup of the company; the authority, responsibility, and background of the supervisors, and their working conditions, duties, and functions. on the job involved in this dispute; salary; earnings; perquisites; and_ benefits. No single factor will be determinative. In the instant case the record shows that Travis Bufkin was a. project superintendent for Catalytic Construction Company, and that. he was in charge of constructing an addition to the South Point, Ohio,. plant of Allied Chemical Corporation. Bufkin directed the work from a field office at the jobsite. The job was set up in such a manner- that Allied supplied certain services and material until Bufkin estab- lished his office and got the job rolling. Thereafter Bufkin had au- thority to buy some, and requisition other, material as needed. He: had charge of all the men working at the project, and could reject. any material that Allied purchased. Insofar as appears in the record,. Bufkin, as project superintendent, was free to exercise authority, in- cluding requisitioning and purchasing supplies, without immediate on-the-job supervision. In fact, he was the top managerial repre- sentative on the job. The exercise by Bufkin'of the foregoing au- thority without reference to anyone else in the managerial hierarchy establishes that he is more nearly related to the managerial level than. to the rank-and-file employees, and is therefore not an "individual 'em- ployed by any person" within the meaning of Section 8(b) (4) (i) of the Act. In contrast, Andy Clay was a working foreman in charge of the laborers at the Marshall College job. He -had no authority be- yond supervising a small group of laborer. We agree with the Trial Examiner that Clay is a low level supervisor who is an "individual employed by any person" within the meaning of 8(b) (4) (i). Accordingly, we find that Respondent violated Section 8(b) (4) (i) (B) of the Act by inducing Clay and laborers employed by the Persun Construction Company to cease using material supplied by- Carolina Lumber Company with an object of forcing Persun to stop. doing business with Carolina. We further agree with the Trial Ex- aminer, for the reasons set forth above, that Respondent did not vio- late Section 8(b) (4) (i) (B) by "inducing" Travis Bufkin to refuse to. use lumber provided by Carolina Lumber Company. 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 Respondent 11 Local Union No... 11 There is no evidence that Respondents Tim Nelson and Paul Gibson engaged in any- unfair labor practice. Accordingly , their names are not included in this Order. LOCAL 505, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1445 .505, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, its agents, officers, successors, and assigns, .including specifically Granville Camp, Nelson McCallister, Wayne Ellis, and Clovis Walker, Jr., shall : 1. Cease and desist from inducing or encouraging any individual employed by Persun Construction Company to engage in a strike or .a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is to force or require Persun to cease doing business with Carolina Lum- ber Company. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at the Union's offices and meeting places in Huntington, West Virginia, copies of the notice attached hereto marked "Appendix." 12 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by authorized representatives of Respondents,' be posted by Respondents immediately upon receipt thereof and be maintained for a period of 60 consecutive clays thereafter in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that the notices are not altered, defaced; or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director, Ninth Region, for posting, Persun willing, at all locations within the territorial jurisdiction of the Respondent Union where notices to individuals employed by Persun are customarily posted. (c) Notify the Regional Director for the-Ninth Region, in writing, within 10 days from the date of this Decision and Order, what steps Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar that it alleges that Respondent violated Section '8(b) (4) (ii) (B) and 8(b) (4) (i) (B) with respect to the incidents at the Kenova Church and Allied Chemical Company jobs, and with -respect to Respondents Tim Nelson and Paul Gibson. MEMBER RODGERS, concurring : I concur in the results of this case. CHAIRMAN MCCULLOCH and MEMBER JENKINS took no part in the consideration of the above Decision and Order. 12 In 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." 1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE 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, we hereby notify you that : WE WILL NOT induce or encourage any individual employed by Persun Construction Company to engage in a strike or a refusal in the course of his employment to use, manufacture, process,, transport, or otherwise handle or work on any goods, articles materials, or commodities, or to perform any services, where an object thereof is to force or require Persun Construction Com- pany to cease doing business with Carolina Lumber Company. LOCAL UNION No. 505, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Labor Organization. Dated---------------- Bv------------------------------------- (Representative ) (Title) GRANVILLE CAMP, Agent. Dated---------------- By------------------------------------- (Granville Camp) NELSON MCCALLISTER, Agent. Dated- --------------- By------------------------------------- (Nelson McCallister) WAYNE ELLIS, Agent. Dated---------------- By------------------------------------- (Wayne Ellis) CLOVIS WALKER, J R., Agent. Dated---------------- By------------------------------------ (Clovis Walker, Jr.) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced , or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been filed and duly served, a complaint and notice of hearing thereon having been issued and served by the General Counsel , and an answer hav- LOCAL 505, INT 'L BROTHERHOOD OF TEAMSTERS , ETC. 1447 ing been filed by the above -named labor organization and its agents , herein called the Respondents , a hearing involving allegations of unfair labor practices in viola- tion of Section 8 (b) (4) (i) and ( ii) (B) of the National Labor Relations Act, as amended , was held in Huntington , West Virginia , on July 19, 1960 , before the duly designated Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Argu- ment was waived . Briefs have been received from General Counsel and the Respondents. Except for two who appeared briefly, witnesses were not called before the Trial Examiner . Instead , the parties by stipulation placed in evidence the transcript of record made at a hearing held in Charleston , West Virginia , on July 14 , 1960, in the United States District Court for the Southern District of West Virginia , in Civil Case No. 1028. From his observation of the two witnesses who did testify before him, and from the entire record thus made, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTY AND OTHER EMPLOYERS INVOLVED Carolina Lumber Company is a West Virginia corporation engaged at various locations in West Virginia, Kentucky, and Ohio in the sale and distribution of lum- ber, hardware products, and building materials. During the year 1959, Carolina purchased such materials valued at more than $500,000 which were shipped directly to it in West Virginia from points outside that State, and during the same period shipped materials valued at more than $50,000 from its Huntington, West Virginia, place of business to points outside said State. Persun Construction Company is a West Virginia corporation with its principal place of business in Huntington, West Virginia, where it is engaged in general construction and building. During 1959 Persun performed services in this industry outside the State of West Virginia, for which it received more than $50,000. Catalytic Construction Company is a Pennsylvania corporation having its principal place of business in Philadelphia, Pennsylvania. During the year preceding issu- ance of the complaint Catalytic performed services in the building and construction industry outside Pennsylvania for which it received more than $50,000. Nitrogen Division of Allied Chemical Corporation is a corporation engaged in the manufacture and distribution of chemicals and other products. During the year preceding the issuance of the complaint, Allied had a direct outflow in interstate commerce of its products from its plant in South Point, Ohio, valued at more than $50,000. The complaint alleges, the parties stipulated, and it is here found that each,of the above-named employers is engaged in commerce and all are employers within the meaning of the Act. II. THE RESPONDENT LABOR ORGANIZATION Local Union No. 505, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein referred to as Teamsters,' is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Setting and tissues For an unrevealed number of years and until April 1, 1960, the Charging Party, Carolina Lumber, recognized the Teamsters and maintained contractual relationship with this labor organization. The latest contract, executed in 1957, expired on April 1. Since that date and despite the Teamsters' request, Carolina has refused to enter into a new contract. On May 16, 1960, 32 of Carolina's employees, members of the Teamsters, went on strike and pickets were established at Carolina's places of business in West Virginia, Kentucky, and Ohio. It is found that a labor dispute existed after May 16 between the Teamsters and the Charging Party and that the latter is the primary employer. Since May 16, Carolina has had orders and contracts to sell materials to Persun Construction Company and Allied Chemical Corporation. The complaint alleges that the Teamsters and certain named agents have engaged in unlawful conduct at three specific sites: (1) at Marshall College in Huntington, West Virginia, where Persun is constructing a gymnasium; (2) at Kenova, West 1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Virginia, where the same contractor is building a church; and (3) at South Point, Ohio, where Catalytic is constructing an addition to a plant for Allied. Teamsters has had no labor dispute during the material period with Persun, Catalytic, or Allied, and has not been certified by the Board as the representative of Carolina's employees under provisions of Section 9 of the Act. The substance of General Counsel's complaint is to the effect that in furtherance of its strike against Carolina-which he does not claim has an unlawful objective- Teamsters and its agents have: (1) "induced and encouraged individuals employed by Persun and Catalytic, at their respective projects, "to refuse in the course of their employment to handle, use or work on" materials supplied at such projects by Carolina; (2) threatened, coerced, and restrained certain job superintendents and a foreman, an object thereof being (a) to force the said construction companies to cease doing business with Carolina, and (b) to force Carolina to "recognize or bargain with" Teamsters. General Counsel urges that such conduct is violative of Section 8(b) (4) (i) and (ii) (B) of the Act.' Since the burden is upon General Counsel to establish facts upon which must rest the legal conclusions he seeks, consideration will first be given to the question of relevant facts. The Respondents' position will be described in the section entitled "Conclusions." B. Events in issue Testimony is in small dispute upon which the following facts are based. Respondent Granville Camp, an officer and business representative of the Team- sters, about May 16 and after the strike began, gave strikers and pickets instructions as to their conduct and procedure during the dispute with Carolina. Ellis, Gibson, McCallister, Walker, and Nelson, all named as Respondents, were present when Camp issued such instructions. Among other things, Camp told them they could follow Carolina trucks, publicize the strike by telling "contractors and builders and persons buying from Carolina Lumber Company that they were on strike," ask "the contractor or buyer not to buy or use the material sent by" Carolina, and "tell the public and any individual of our strike and our labor dispute and ask them not to use Carolina Lumber Company material until our dispute was settled." 2 ' The portions of the Act invoked are: 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4) (1) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (Ii) to threaten, coerce, or re- strain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: i ♦ • • • R a (B) forcing or requiring any person 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 person, or forcing or requiring any other employer to recognize or bargain with a labor organiza- tion as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9: Provided, That nothing contained in this clause (B) shall be con- strued to make unlawful, where not otherwise unlawful, any primary strike or primary picketing ; s • s s s n Provided further, That for the purposes of this paragraph (4) only, nothing con- tained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including con- sumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dis- pute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, de- liver, or transport any goods, or not to perform any services, at the establish- ment of the employer engaged in such distribution : 2 The quotations are from Camp's affidavit made before a Board agent. When read to him as a witness he admitted having given such instructions to strikers. LOCAL 505, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1449 In issue is the actual conduct at three different construction sites. Kenova Church: On June 16 a nonstriking Carolina driver brought a load of framing material to the construction site. Two unidentified individuals followed the truck. They told the job superintendent: "We are on strike up at Carolina Lumber Company and the driver is a scab." The superintendent replied: "Well, it makes no difference to me what they are, what the driver is. The lumber is not supposed to be unloaded here." It was not unloaded there. It was taken to a dock, or depot, or coalyard where, according to the superintendent, such materials were supposed to be delivered and stored until used because at that location a roof could serve as weather protection. There is no evidence that anyone followed the truck to the dock. There is no evidence that any individual was induced, in any fashion, not to use or handle Carolina's lumber at this building site, or that any Teamsters representative or agent uttered threats or picketed, or that any work stoppage occurred at either the church or the dock. Marshall College: Persun's construction superintendent ordered a load of flooring from Carolina. It was brought by a Carolina truckdriver to the site on the morn- ing of June 16. The truck was followed to the site by a "couple" of individuals whom the superintendent as a witness did not otherwise identify and who merely asked him if he was going to use the flooring.3 He told them he had to use it, and it was used as soon as the labor crew, whose duty it was, brought the material to the carpenters. Shortly after this (the record is not entirely clear as to timing), striking employees Ellis, McCallister, and Walker, named herein as Respondents, came to the site. They approached the labor foreman who had charge of the crew whose duty it was to lift the material to an upper floor. They told the foreman, according to his testi- mony, "You know it is wrong to handle that flooring. You will bust our union if you handle it." Upon this, the foreman instructed his crew not to handle the flooring temporarily. He then tried to reach his own business agent, but was un- successful. Finally, after lunch, and still unable to communicate with his agent, the foreman instructed his crew to take the flooring to the carpenters. They did so, and it appears that without further delay the material was used. It is clear that the labor foreman was "induced" not to have his men handle the flooring from about 10:30 in the morning until 1:30 or 2 o'clock in the afternoon. His testimony shows that the "effect" of the remarks by Ellis, McCallister, and Walker, agents of the Teamsters, was to delay handling of the flooring. However, the same foreman's testimony is undisputed that his crew engaged in no "work stoppage," but went about other work during the interim period. And there is no evidence of any threat uttered, or implied by presence of a picket line, at this site, by anyone. Allied Chemical: As noted, Catalytic Construction has been building an addition to a plant of Allied Chemical in South Point, Ohio. On or about June 13 Project Superintendent Bufkin of Catalytic received a tele- phone call from a gate guard reporting that he had stopped a Teamster "picket" who was following a load of Carolina lumber onto the premises. Over the same telephone Bufkin talked to this individual-Gibson-and asked him for his business agent 's telephone number. He then called Camp, who verified the fact that Carolina was on strike and said he would "rather" he not unload and use the lumber. Bufkin thereupon sent the load of lumber back to Carolina. Bufkin has full authority to order needed materials, and to accept and reject them. C. Conclusions First, as to the Kenova Church project. Since nothing happened at this project as a result of the visit by two strikers it is difficult to perceive any basis for an 8 There is also testimony in the record that these two unidentified strikers also went to an upper floor and talked to carpenters and their foreman, telling the foreman in effect, according to his testimony, that if they "used" the material their (the strikers') jobs were "sunk." Since there is no evidence that the carpenters or their foreman en- gaged in any work stoppage as a result of whatever may have been said to them, or de- clined to use the material (but, on the contrary, did use it as soon as it was brought to them), the Trial Examiner considers this phase of the incident to be immaterial. As will be noted hereinafter, where no threats are uttered and where there is no picketing, and where there is no "effect" of any kind following a mere statement made„ the Trial Examiner is of the opinion that no violation of the law may reasonably be found. 1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice finding. The place was not picketed .4 No threats were uttered. No appeal or effort to induce any action was made by the strikers. They merely told the top official on the job that Carolina was on strike, which was a fact, and that the driver was a "scab," which, while not a term of endearment, is commonly enough applied to one who assumes a striker's job. As to this incident the complaint should be dismissed, and it will be so recommended. Second, as to the Marshall College incident . Here , as a result of an appeal or inducement by Teamsters agents, certain materials were not "used" or "handled" for a short time, and to that extent a "work stoppage" in the handling of such ma- terial did occur. Nor can there be any question but that the purpose of the appeal was to persuade Persun to cease "doing business" with Carolina until the dispute was ended. The Trial Examiner concludes and finds that as to this project the Respondents Teamsters, Camp, Ellis, McCallister, and Walker engaged in conduct violative of Section 8(b)(4)(i)(B) of the Act, but not of 8 (b) ( 4) (ii) (B ), 'since there were no actual threats and the implied threat of a picket line did not exist. The conclusion rests chiefly upon the fact that the strikers made their appeal to the labor foreman, a minor supervisor. The Trial Examiner finds himself in complete agreement with Trial Examiner A. Norman Somers in the latter's conclusion , set forth in Van Transport Lines, Inc., 131 NLRB No. 42, concerning the somewhat puzzling question as to the meaning of "individual" as used in Section 8(b) (4) (i). It was there Somers ' conclusion, after an able and exhaustive review of the relevant legislative history, and is here adopted by this Trial Examiner , that "those above the first rank of supervision or whose jobs spontaneously identify them with management in their relations with the outside, . . . and, of course, the president or officer of a corporation are not encompassed within the class of persons of whom inducement is banned under 8(b)(4)(i). The labor foreman at the Marshall College project cannot reasonably be con- sidered as identified with management , in the opinion of the Trial Examiner, within the proscriptive terms of the subsection . So far as the evidence shows, he was merely in charge of a crew of laborers who performed various tasks at the site and who were, in effect , helpers for the various crafts. He had no authority to accept or reject construction materials. I Third, as to the Allied project. It follows, from the conclusion noted immediately above regarding " individual ," that no violation of the Act occurred here. The appeal was made to the project superintendent , who manifestly had full power to order and to accept or reject Carolina materials. There being no evidence that Teamsters Agents Gibson or Nelson participated in any unlawful conduct , it will be recommended that the complaint be dismissed as to them. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain of the activities of the Respondents set forth in section III, above, oc- curring in connection with the operations of Employers Carolina and Persun described in section 1, above , have a close, intimate , and substantial relation to trade, traffic, and commerce , and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. 4 After conceding , In his brief, that "the material was accepted and unloaded at its proper destination ," General Counsel proceeds to extend the allegation of his complaint by arguing that the strikers who talked to the superintendent were actually "pickets" and, in effect , that their mere presence there was coercive and in violation of the Act. He quotes Webster as defining a picket as a "Person posted by a labor organization at an approach to the place of work affected by a strike to ascertain the workmen going and coming and to persuade or otherwise influence them to quit working there . . " Webster also provides other definitions of picketing-including an old military custom of punish- ment requiring the victim to stand with one foot on a sharp stake . It would be much easier for a trier of facts , perhaps, to base his findings on Webster 's many and diverse definitions of a simple word , but this practice would hardly meet the requirements of the Administrative Procedure Act. In the first place the actual facts do not meet even Webster's requirements , there being no evidence that anyone from the Teamsters was at the site "toy influence" anyone "to quit working there ." In the second place, had General counsel wished to allege "picketing ," it would seem that the Respondent should have been forewarned in the complaint , In order that it might file a timely answer . Congress pro- vided an entire subsection-8(b) (7)-devoted specifically to picketing. CANTON CARP'S, INC. 1451 V. THE REMEDY Having found that certain of the Respondents have engaged in certain unfair labor practices , the Trial Examiner will recommend that they cease and desist there- from and take affirmative action to effectuate the policies of the Act. Because Camp 's testimony makes it clear that it was the Teamsters ' plan to persuade many companies in the area to discontinue their business dealings with Carolina during the period of the labor dispute , it will be recommended that such Respondents cease inducing any individual employed by any person doing business with Carolina from handling Carolina materials in order to force their respective employers to cease doing business with Carolina. In order that said Respondents .may be aware of the extent of such recommended injunction , to the words "any individual employed" will be added "whether in a rank-and-file capacity or as a supervisor." Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local Union No. 505, International Brotherhood of Teamsters , Chauffeurs, 'Warehousemen & Helpers of America, is a labor organization within the meaning .of Section 2(5) of the Act. 2. Carolina Lumber Company and Persun Construction Company are persons .engaged in commerce or in an industry affecting commerce within the meaning of the Act. The rank-and-file employees and the labor foreman of Persun are individuals ,employed by Persun within the meaning of the Act. 4. By inducing and encouraging individuals employed by Persun to refuse, in the course of their employment , to handle materials of Carolina , with an object of forcing Persun to cease doing business with Carolina, the Respondents Teamsters, Camp, McCallister, Ellis, and Walker engaged in and are engaging in unfair labor -labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. 5. The said unfair labor practices are unfair labor practices within the meaning ,of Section 2(6) and (7) of the Act. . 6. The Respondents , or any of them , have not violated Section 8(b)(4)(ii)(B) of the Act. [Recommendations omitted from publication.] 'Canton Carp 's, Inc. and Local 536, Retail Clerks International Association, AFL-CIO. Case No. 13-CA-36926. March 20, 1961 DECISION AND ORDER On September 27, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in a certain unfair labor practice, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. . Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers herein to a three-member panel [Members Rodgers, Leedom, and Jenkins]. 130 NLRB No. 151. Copy with citationCopy as parenthetical citation