Local 732, Teamsters

National Labor Relations Board - Board Decisions

May 2, 1977

229 N.L.R.B. 392 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 732, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca and Servair Maintenance, Inc. and National
Airlines, Inc. Cases 29-CC-519 and 29-CC-525
May 2, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On November 22, 1976, Administrative Law Judge
Robert W. Leiner issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Charging
Party National Airlines, Inc., filed exceptions.
Respondent filed no exceptions or reply briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge with
the modifications set forth below.
The primary dispute here is between Respondent
and Servair Maintenance, Inc. The Administrative
Law Judge found that Respondent, by various
picketing and other means, sought to induce indivi-
duals employed by National Airlines and other
companies to refuse to handle goods or perform
services for their employers and also distributed
untruthful written communication to travel agents
with the purpose of coercing National Airlines to
cease doing business with Servair. He concluded that
by engaging in such conduct Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act and recom-
mended an order proscribing such conduct. No
exceptions were filed to these findings and conclu-
sion, and they are hereby affirmed.
The General Counsel and National Airlines except
to the Administrative Law Judge's failure on the
basis of his findings of fact to make additional
conclusions of law to the effect that Respondent
engaged in other conduct proscribed by Section
8(b)(4)(i) and (ii)(B) of the Act. Respondent has
taken no position with respect to these matters.
The General Counsel requests the Board to find
that Respondent's conduct violated the Act not only
as found by the Administrative Law Judge, i.e.,
because it had the object of coercing National
ISuch violation is specifically alleged in the complaint.
2 The General Counsel also seems to request a finding that Respondent
violated the Act by picketing and handbilling National's locations other
than its freight terminal. Such picketing and handbilling were aimed
229 NLRB No. 58
Airlines to cease doing business with Servair, but also
because it had the intermediate object of forcing or
requiring Emery Airfreight, TWA, and Interline
Trucking Co. to cease doing business with National.'
The evidence does show, as found by the Adminis-
trative Law Judge, that Respondent picketed the
National Airlines freight facility located several miles
from the passenger terminal where the primary
employer's employees worked. The pickets carried
signs bearing the legend "Don't Fly National" and
also handbilled truckdrivers employed by Emery
Airfreight, TWA, and Interline Trucking Co. who
were coming to National's loading platform. The
picket signs did not refer to Servair and the
handbills, though primarily addressed to National's
prospective passengers, did request the recipient of
the handbill to join the "many people . . . already
supporting us and refusing to cross our protest lines."
We agree with the General Counsel that such
picketing and accompanying handbilling had the
proscribed object of forcing Emery Airfreight, TWA,
and Interline Trucking Co. to cease doing business
with National, the secondary employer, and thus
violated Section 8(b)(4)(i) and (ii)(B) of the Act.2
In addition, Charging Party National Airlines
requests a finding that Respondent's picketing and
handbilling of its customers were unlawful. The
record does show that the picketing and handbilling
of customers did not limit Respondent's dispute to
those services provided by Servair. Rather, their
purpose was clearly to persuade the customers of
National to seek air transportation elsewhere-i.e.,
the picket signs read "Don't Fly National"-in order
to force National to stop dealing with or to put
pressure on Servair. Such picketing was, we find,
unlawful.3
CONCLUSIONS OF LAW
1. Servair Maintenance, Inc., National Airlines,
Inc., Trans World Airlines, Inc., and Interline
Trucking Co., and each of them, is a person engaged
in commerce or in an industry affecting commerce
within the meaning of Section 2(1), (6), and (7) and
Section 8(b)(4) of the Act.
2. Local 732, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. In the period January-April 1976, Respondent,
Local 732, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
by picketing, verbal appeals, and handbilling in-
essentially at customers of National and in all practical regards can be
subsumed under National's exceptions considered below.
3 N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760
[Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964).
392
LOCAL 732, TEAMSTERS
duced individuals employed by National Airlines,
Emery Airfreight Co., Trans World Airlines, Inc.,
and Interline Trucking Co., to refuse to handle or
work on materials and to refuse to perform services
for their employers and by the above conduct and by
untruthful written communications to travel agents
coerced National Airlines with an object of forcing
or requiring National Airlines to cease doing
business with Servair Maintenance, Inc., thereby
violating Section 8(b)(4)(i) and (ii)(B) of the Act.
4. By picketing, by verbal appeals, and by
handbilling individuals employed by Emery Air-
freight Co., Trans World Airlines, Inc., and Interline
Trucking Co. in order to force or require those
companies to cease doing business with National
Airlines, Respondent violated Section 8(b)(4)(i) and
(ii)(B) of the Act.
5. By picketing and handbilling at National
Airlines' terminals and ticket offices with the purpose
of forcing or requiring National Airlines to cease
doing business with Servair Maintenance, Inc.,
Respondent violated Section 8(b)(4) and (ii)(B) of the
Act.
6. The above unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local 732, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
New York, New York, it officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Inducing or encouraging any individual em-
ployed by National Airlines, Inc., Emery Airfreight
Co., Trans World Airlines, Inc., Interline Trucking
Co., or any other 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 service; or threaten-
ing, coercing, or restraining the said persons, or any
other persons engaged in commerce or in an industry
affecting commerce, where in either case an object
thereof is enforcing or requiring any of the above or
any other such persons to cease doing business with
Servair Maintenance, Inc.
(b) Inducing or encouraging any individual em-
ployed by Emery Airfreight Co., Trans World
Airlines, Inc., Interline Trucking Co., or any other
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 service; or threatening, coercing, or
restraining the said persons, or any other persons
engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is
forcing or requiring any of the above or any other
persons to cease doing business with National
Airlines, Inc.
(c) Threatening, coercing, or restraining National
Airlines where an object thereof is to force or require
National Airlines to cease doing business with
Servair Maintenance, Inc.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its offices and meeting halls copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional
Director for Region 29, after being duly signed by an
authorized representative of Respondent, shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where
notices to its members are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(b) Sign and mail sufficient copies of said notice to
the Regional Director for Region 29, for posting by
National Airlines, Inc., Servair Maintenance, Inc.,
Emery Airfreight Co., Trans World Airlines, Inc.,
and Interline Trucking Co., such employees being
willing, at all places where notices to their employees
are customarily posted.
(c) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
4 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT induce or encourage any individ-
ual employed by National Airlines, Inc., Emery
Airfreight Co., Trans World Airlines, Inc., or
Interline Trucking Co., or any other person
engaged in commerce or in an industry affecting
commerce, to engage in a strike or 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 service; or threaten, coerce, or
restrain the aforesaid persons, or any other
persons engaged in commerce or in an industry
affecting commerce, where in either case an
object thereof is forcing or requiring any of the
above or any other persons to cease doing
business with Servair Maintenance, Inc.
WE WILL NOT induce or encourage any individ-
ual employed by Emery Airfreight Co., Trans
World Airlines, Inc., Interline Trucking Co., or
any other 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 service; or
threaten, coerce, or restrain such persons or any
other persons engaged in commerce or an
industry affecting commerce, where in either case
an object of such conduct is to force or require
any of the above or any other such persons to
cease doing business with National Airlines, Inc.
WE WILL NOT threaten, coerce, or restrain
National Airlines, Inc., where an object of such
conduct is to force or require National Airlines to
cease doing business with Servair Maintenance,
Inc.
LOCAL 732,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge: Upon a
charge filed by Servair Maintenance, Inc.,' on February
27, 1976, and upon a charge filed by National Airlines, Inc.
(hereinafter called National), on April 15, 1976, the
General Counsel for the National Labor Relations Board,
by the Regional Director for Region 29, issued an Order
consolidating cases, complaint, and notice of hearing, all
dated April 22, 1976. The complaint alleges that the labor
organization, Local 732, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (hereinafter called Respondent, Local 732, or the
Union), engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the National
Labor Relations Act, as amended, by conduct hereinafter
specified. Respondent, in its timely filed answer, denied the
commission of the alleged unfair labor practices.2 It
admitted Servair's corporate status, Servair's engaging in
interstate commerce, its existence as a person engaged in
commerce and in an industry affecting commerce as well
as National's status as a person engaged in commerce and
an industry affecting commerce, all respectively within the
meaning of Sections 2(l), (6), and (7) and 8(b)(4) of the
Act. A hearing on the consolidated complaint was held
before me on June 1, 2, 4, and 7, 1976. Subsequent to the
hearing, Servair, National Airlines, and General Counsel
submitted briefs, all of which have been helpful and duly
considered. Respondent, in addition, was given an oppor-
tunity to make oral argument on the record and did so.
Upon the entire record in this case, including the briefs
of counsel, oral argument, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF SERVAIR MAINTENANCE, INC.
The complaint alleges, Respondent's answer admits, and
I find that Servair Maintenance, Inc., hereinafter called
Servair, is the wholly owned subsidiary of Servair, Inc.
Servair Maintenance, Inc., has been, at all material times, a
corporation organized under and existing by virtue of the
laws of the State of New York. Its principal place of
business, as described at the hearing, has been and is
located at Building 150, JFK International Airport in the
city and State of New York, where it is, and has been at all
times material herein, engaged in providing baggage and
cargo handling services, janitorial services, skycap services,
and related services to the airline industry. During the year
prior to the issuance of the complaint, a representative
period of Servair's operations generally, Servair purchased
and caused to be transported and delivered to its New
York place of business, cleaning materials, vehicle replace-
I At the opening of the hearing the parties agreed that the correct name is
as shown. Servair Maintenance, Inc., a subsidiary of Servair, Inc., will be
referred to as Servair.
2 Respondent alleged three affirmative defenses: lack of Board jurisdic-
tion over National Airlines; National Airlines as a "co-employer" of the
employees; and Respondent had a right to picket because of two charges it
filed in the Regional Office. This Decision treats with the first two of these
affirmative defenses. As to the third, no evidence supporting the alleged
right to picket was introduced although Respondent alleged that unfair
labor practice charges were filed against Servair and the labor organization
representing the Servair skycaps. Even if the charges prove to have merit,
Servair's unfair labor practices would provide no defense to the alleged
unlawful conduct herein of Respondent. Superior Derrick Corporation v.
N.L.R.B., 273 F.2d 891, 893 (C.A. 5. 1960), cert. denied 364 U.S. 816.
394
LOCAL 732, TEAMSTERS
ment parts, and other goods and materials valued in excess
of $50,000 of which goods and materials valued in excess of
$50,000 were transported and delivered to the aforesaid
place of business in interstate commerce directly from
States of the United States other than the State of New
York. The complaint alleges, Respondent admits and I find
that Servair is, and has been at all times material herein, a
person engaged in commerce and in an industry affecting
commerce within the meaning of Sections 2(1), (6), and (7)
and 8(b)(4) of the Act.
II. THE BUSINESS OF NATIONAL AIRLINES
The complaint alleges, Respondent admits, and I find
that National is a Florida corporation, maintaining its
principal office and place of business in Miami, Florida,
and has various other places of business in the States of the
United States, including places of business at JFK and
LaGuardia Airports, both in the city and State of New
York, and at Newark International Airport in the city of
Newark, State of New Jersey. Respondent admits that at
all times material herein, National has been continuously
engaged in providing airline passenger and freight services
and related services. Respondent, however, denies that
National is a "person engaged in commerce and in an
industry affecting commerce" within the meaning of
Sections 2(1), (6), and (7) and 8(b)(4) of the Act. In its
answer, Respondent pleads that the National Labor
Relations Board does not have jurisdiction over National
Airlines but rather that National Airlines is subject to the
provisions of the Railway Labor Act, 44 Stat. 577 as
amended, 45 U.S.C. § 151. While it is true that the Board
has held that Congress has excluded from the definition of
"employer" in Section 2(2) of the Labor-Management
Relations Act 3 "any person subject to the Railway Labor
Act," it has not divested the Board of jurisdiction over
controversies otherwise within its competence. Airlines,
like railroads, are not excluded from the Act's definition of
"person" and are entitled to Board protection from the
kind of unfair labor practices proscribed by Section
8(b)(4)(B), the provisions of which apply not only to
"employers" but to "persons." 4 Respondent, having
admitted that National Airlines is a corporation, admits
therefore that it is a "person" within the meaning of
Section 2(1) of the Act. I so find. I therefore conclude, on
Respondent's admissions, and upon the record as devel-
oped in this case, that National Airlines is a "person"
within Section 2(1) of the Act and is a person "engaged in
commerce" entitled to the protection of Section 8(b)(4)(B)
of the Act. Los Angeles Newspaper Guild Local 69 (San
Francisco Examiner Div.), 185 NLRB 303, 305, fn. 7 (1970).
See Local Union No. 25, of the International Brotherhood of
Teamsters, Chauffeurs, Warehouse and Helpers of America
et. al. [New York, New Haven & Hartford Railroad Co.], 350
U.S. 155 (1956); I.A.M. and Lufthansa German Airlines
(Mariott In-Flight Service), 197 NLRB 232, 238 (1972).
3 For instance, Rio Airways, Inc., 208 NLRB 675 (1975).
4 Sec. 2 of the National Labor Relations Act. as amended, provides:
(I) The term "person" includes one or more individuals, labor
organizations, partnerships, associations, corporations, legal represen-
tatives, trustees in bankruptcy, or receivers.
The Board's statutory and "commerce" standards for
jurisdiction are met by the above evidence and the
conclusion that Servair, the primary employer, is a person
engaged in commerce within the meaning of Section 2(1),
(6), and (7) of the Act regardless whether the Board would
exercise jurisdiction over National Airlines outside of the
8(b)(4) context. Local 14055, United Steel Workers of
America, AFL-CIO (The Dow Chemical Company) 211
NLRB 649 (1974).
III. THE UNION AS A LABOR ORGANIZATION
At the hearing, contrary to the denial filed in its answer,
Respondent admitted that, at all times material herein, it
was and is a labor organization within the meaning of
Section 2(5) of the Act. I so find.
IV. THE UNFAIR LABOR PRACTICES
Background
In substance, the complaint alleges that beginning in or
about January 1976, because of its dispute with Servair, the
Union, in violation of Section 8(b)(4Xi) and (ii)(B),
picketed, distributed handbills, and appealed to certain
travel agents, all directed against National Airlines, for the
purpose of coercing National Airlines to cease doing
business with Servair with whom it had a contract whereby
Servair supplied skycap services to National Airlines at
JFK International Airport.
The underlying facts are not in dispute. The Union does
not deny that National Airlines has a passenger terminal
building at JFK International Airport and also has offices,
passenger facilities, and freight facilities at Newark
International Airport in Newark, New Jersey, and at
LaGuardia Airport in New York. The facts also show that
National Airlines maintains an airplane hangar at 150th
Street and North Boundary Road at JFK Airport and has
its own various ticket sales offices throughout New York
City. In addition, National does business with travel
agencies in the City of New York of which two are Blue
Sky Tours and Tripper Travel Service Limited.
Prior to November 1, 1975, National Airlines had a
service contract with Allied Aviation Service Co. (herein
called Allied Aviation), which provided that Allied Avia-
tion would supply National with skycap services at
Kennedy Airport. The skycaps performing services at JFK
supplied by Allied were represented by the Respondent. In
or about the summer of 1975, National Allied decided to
terminate their agreement and National then solicited
competitive bids for a replacement contractor. The agree-
ment between Allied and National provided, inter alia, that
the parties could terminate the agreement if Allied
submitted an application for increasing its rates for services
under the contract beyond that which National would
adopt or accept. Such an application for increase in rates
led to the termination of the agreement. Thereafter, as a
result of the competitive bids submitted to National,
(2) The term "employer" includes any person acting as an agent of
employer, directly or indirectly, but shall not include . . any person
subject to the Railway Labor Act, as amended from time to time ....
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National awarded the service contract for skycaps at JFK
to Servair to commence on or about November 1, 1975.
Due to a labor dispute among other of National Airlines
personnel, National was struck and shut down until on or
about January 1, 1976, sometime after which Servair began
performing under its contract with National.5
As above-noted, the skycaps employed by Allied at JFK
were covered by a collective-bargaining agreement be-
tween Allied and Respondent, whereas the skycaps
employed by Servair and providing the same service
commencing January 1976, are covered by a collective-
bargaining agreement between the United Steel Workers of
America and Servair.
William F. Genoese, is Respondent's secretary-treasurer
and chief operating officer. Mr. Edward Dougherty is
Respondent's business representative. Mr. Henry Molle is
Respondent's vice president. All have held such titles and
office since 1969, and all are agents of Respondent. 6
Allied Aviation's contract with National, covering the
performance of skycaps services at JFK, which would have
expired in 1977, was thus terminated on October 31, 1975,
by agreement of the parties. It also appears that Allied
Aviation's collective-bargaining agreement with Respon-
dent expired on December 31, 1975.
Following this expiration of the collective-bargaining
agreement between Allied Aviation and Respondent, on or
about January 10, 1976, Edward Dougherty, the above-
named business representative of Respondent, commenced
seeking to have Servair skycaps at JFK execute member-
ship application cards in Respondent union. This occurred
shortly after Servair began to perform its skycap services
with National Airlines at JFK on January 6, 1976. Around
the same time, Respondent's William Genoese telephoned
Servair, Inc.'s (the parent corporation) executive vice
president, Carl Smitelli. Genoese told Smitelli that he
wanted to meet with him concerning the "skycap situation"
at JFK involving National Airlines. On Thursday, January
29, Smitelli and Genoese met at the International Hotel at
JFK Airport. At that time, Genoese told Smitelli that he
was concerned about Servair getting the contract with
National and that the skycaps employed by Servair were
not members of the Teamsters union. Genoese said that he
would do everything possible to see to it that Servair lost
the contract. Genoese said that he knew that Servair had a
relationship with United Steel Workers Union and that
Genoese wanted Smitelli to get the Steel Workers Union to
surrender its rights and to terminate the collective-bargain-
ing agreement between the Steel Workers and Servair. In
addition, Genoese told Smitelli that if Servair did not agree
to abrogate the collective-bargaining agreement with the
Steel Workers Union, Respondent would picket Servair
and National Airlines, "make life miserable" and see to it
that Servair went out of business at Kennedy. Genoese also
told Smitelli that he would not only picket Servair and
National but also picket at Pan American Airways, BOAC
and other terminals. Smitelli refused to meet Genoese's
demands and Genoese told him that he would "picket the
5 Servair provides skycap services for National Airlines only at JFK
International Airport. At LaGuardia's passenger terminal, skycap services
are provided by Mohawk Maintenance Co.; and at Newark Airport, Allied
Aviation continues to provide skycap services for National Airlines.
6 Genoese testified that Dougherty's and Molle's powers over organiza-
ass" off of Servair and National Airlines and would do
anything necessary to break up the relationship between
Servair and National Airlines.
Respondent Pickets National at JFK Airport
The uncontradicted evidence shows that commencing
January 23, 1976, and on various dates in February,
March, and April 1976, and particularly on the weekends,
with a total of no fewer than 12 separate occasions on
separate days, Local 732 picketed the passenger terminal of
National Airlines at Kennedy Airport. On each such
occasion between January 23 and April 16, 1976, the
pickets were accompanied by Vice President Molle,
Business Agent Dougherty, or Secretary-Treasurer Ge-
noese. On several of such occasions, Genoese and Molle
were seen distributing the picket signs and leaflets to the
pickets. The picketing was discussed by members of Local
732 from time to time at the Riviera Hotel at JFK Airport.
The funds to pay for the rooms at the Riviera Hotel came
from the Union.7 In addition to distributing the signs,
Genoese, Dougherty, and Molle would also engage in
patrolling with the pickets outside the passenger terminal
of National Airlines at JFK. The other pickets included
skycaps who were previously employed by Allied Air
Service and shop stewards of shops represented by Local
732 which shops performed skycap services for Pan
American Airways, British Airways, and other airlines
serviced by Allied Aviation. I conclude, contrary to
Genoese's denial, that the picketing was thus authorized by
and engaged in by Respondent, its agents, and members
and that Respondent is responsible for the signs, handbills,
statements, and object of the picketing. Local 810, Steel,
Metals, Alloys & Hardware Frabricators & Warehousemen,
International Brotherhood of Teamsters Chauffeurs, Ware-
house & Helpers of America (Scales Air Compressor Corp.),
200 NLRB 575, 584-585 (1972), and cases cited therein;
Service Employees International Union, Local No. 50, AFL-
CIO (Our Lady of Perpetual Help Nursing Home, Inc.), 208
NLRB 117 (1974). The evidence shows that Respondent's
own identified officer paid for premises where picketing
was discussed and planned, distributed the picket signs and
leaflets, mailed the handbills to travel agents, actively
patrolled with picket signs on the picket line, and never
disavowed any of the above conduct.
The picketing usually commenced at or about 7:45 a.m.
and was concluded at or about 10 a.m. each day. On
February 27 the New York Port Authority police were
called because the pickets were blocking the entrance to
the walkway leading into the National Airlines terminal
entrance and were preventing the skycaps from performing
their duties at curbside.
In January and February, the picket signs, according to
the unrefuted evidence, stated: "Fly Delta Airlines.
National unsafe. Servair and National scab outfit. Servair
does pay scab wages. We want our jobs back at National."
The pickets also chanted the same things as appeared on
tional activities and the picketing are derived from him as chief executive
officer of the Union.
7 At one point in the testimony, Genoese, who was in charge of
dispersing the funds, denied knowledge of who dispersed the funds.
396
LOCAL 732, TEAMSTERS
the sign and also said "pass them by. It's not too late to go
to Delta." The picketing, taking place in front of the
National Airlines terminal passenger departure area also
included the pickets telling incoming persons, including
passengers, that the Servair skycaps were "tagging the
baggage wrong and sending it to the wrong designation."
By March 6, and on each weekend thereafter, the
evidence shows that the picket signs and pickets in no way
mentioned, nor were directed at, Servair, but were rather
directed solely at National Airlines. The picket signs failed
to include the name Servair and, in picketing conducted on
March 6, 13, 19, 20, and 27 and April 3, 7, and 16,
Respondent's signs related only to National Airlines and
read: "Don't fly National Airlines." The evidence is
uncontradicted that the pickets from time to time used a
bullhorn and appealed to persons, including passengers to:
"Don't fly National Airlines, unsafe airline, fly Delta, pass
them by." According to the uncontradicted testimony of
Paul Dunbar, a witness called by General Counsel, on
Friday, March 19, 1976, between 8 a.m. and approximately
10 a.m., in addition to picketing with signs directed solely
at National Airlines, Henry Molle also distributed leaflets
to the 14 pickets. Both the signs and the leaflets said:
"Don't fly National Airlines" (G.C. Exh. 4). The leaflets
were then distributed by the pickets to passengers as they
arrived at the building. The persons to whom the leaflets
were handed were known to be passengers because they
were using the National Airlines departure terminal and
because they had luggage.
The handbill (G.C. Exh. 4) distributed by the pickets
reads, on one side "Don't Fly National Airlines" and
invites the reader to read the other side. The other side of
the handbill requests passengers to support the picketers by
refusing to cross the "protest lines" or to "fly National
Airlines" until "National Airlines ... revokes this misera-
ble sell out and makes a decent and just settlement with the
skycaps." The handbill, eight paragraphs in length, men-
tions Servair: "an unscrupulous subcontractor." The
history of the replacement of Allied Aviations by Servair is
recounted in the handbill along with the alleged ensuing
detriments suffered by the skycaps.8
The full text of the handbill (G.C. Exh. 4) is as follows:
DON'T FLY NATIONAL AIRLINES
National Airlines, which has had the worst labor record in the
airline industry for many years, has hit a new low in exploiting loyal
workers-namely Skycaps-through an unscrupulous subcontractor,
Servair.
The facts are simple. National Airlines Skycaps at JFK Airport for
years were employed by a subcontractor named Allied Maintenance.
They earned $1.95 an hour. plus tips, under a Teamster contract that
also provided an excellent health and welfare plan and an outstanding
pension plan.
But during one of National's strikes-the one by flight attendants
that began in 1975 and lasted into 1976-National made a sellout deal
with Servair, under which Servair took over in place of Allied
Maintenance. The Skycaps' pay was cut to $1.35 an hour, and the
health and welfare plan was watered down so badly that if a Skycap
gets sick he must now go on welfare.
As if this wasn't bad enough, many older Skycaps some with up to
20 years of airline industry service were laid off. They lost their
Picketing and handbilling at places other than
JFK Airport
(1) On the morning of March 18, 1976, the National
Airlines station agent at LaGuardia Airport observed
Business Agent Edward Dougherty walking through the
National Airlines ticket lobby at LaGuardia Airport about
9 a.m. He was handing out handbills to passersby and he
wore a sandwich sign saying: "Don't Fly National
Airlines." In addition, there was also a person wearing a
sandwich sign saying: "Don't Fly National Airlines" about
6 feet from the door outside of the National Airlines ticket
lobby at LaGuardia Airport. They remained in the area
until about I 11 a.m. Dougherty made several passes past the
National's ticket counter. Dougherty rode the escalators
and handed out leaflets. He also handed out leaflets at the
ticket counter to passengers checking in and placed a
leaflet on the ticket counter. The other picket remained
outside the door and patroled in front of the door. 9
No Servair personnel were ever stationed at LaGuardia
Airport. There was no evidence that any Servair employees
performed services at LaGuardia Airport at any time. As
above-noted, skycaps at LaGuardia who perform services
for National Airlines were and are employed by Mohawk
Maintenance Company.
(2) About 2 or 3 miles from the National Airlines
passenger terminal, is the National Airlines cargo facility
located in cargo building number 86 at JFK. About 20 to
30 National Airlines employees work in the cargo building
handling cargo. No Servair employees work at this facility.
The testimony is uncontradicted that on March 20 and
April 3, 10, and 16, the aforesaid cargo facilities were
picketed during daylight hours by two pickets. Pickets
came into the cargo building parking lot and put on
sandwich picket signs which said: "Don't Fly National."
They also picketed on the sidewalk near the parking lot.
The picketing lasted from about 9:30 a.m. to noon on each
occasion. They also handed out the above-described
leaflets to vehicles coming into the cargo building area on
the roadway leading thereto. The trucks were engaged in
cargo handling between airlines, and were owned or
operated by private trucking concerns of freight brokers.
On one occasion, the pickets gave a leaflet to the driver of a
truck owned or operated by Emery Airfreight. Other
pensions and health and welfare benefits and became a burden on the
community and the taxpayer. Even those who stayed on the job lost
their years of equity in a good pension plan. Their pay is so low that
they don't even build up enough Social Security coverage to have a
decent existence on retirement or to protect their families.
Younger men willing to work for substandard pay were hired off the
streets to replace highly skilled professional Skycaps. Worker was pitted
against worker in a vicious scheme to squeeze every possible penny out
of decent, hard-working employees.
We will be holding protest marches at the National terminal at JFK
Airport. Many people are already supporting us and refusing to cross
our protest lines or to fly National Airlines under any circumstances.
We ask you to join them. We ask you not to fly National Airlines
until it revokes this miserable sellout and makes a decent and just
settlement with the Skycaps.
You and every other potential airline passenger have the power to
right this wrong-by refusing to patronize National Airlines.
DON'T FLY NATIONAL AIRLINES.
9 This person accompanying Business Agent Dougherty walked back
and forth with the "Don't Fly National" sign.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handbills were given to trucks operated by employees of
TWA Airlines and employees of Interline Trucking Co.
which distributes cargo among the various airlines. The
trucks involved were coming directly to the National
Airlines loading and unloading platform. None of the
picket signs referred to Servair.
In addition, the evidence is uncontradicted that, in this
period, Respondent picketed National Airlines ticket
offices in New York City where no Servair employees are
employed. Respondent picketed the National Airline office
adjacent to Rockefeller Center on Fifth Avenue and the
ticket office adjacent to Park Avenue on East 42d Street.
At about noontime, for about 15 minutes, three of
Respondent's pickets wearing sandwich signs stating
"Don't Fly National Airlines" picketed these promises and
distributed leaflets above referred to (G.C. Exh. 4) which
urged persons not to fly National Airlines. The pickets at
the ticket offices distributed the leaflets to all passersby
who would accept them.
On April 5 and 7, Respondent Business Agent Edward
Dougherty, in the afternoon on those days, distributed
leaflets to passers-by (G.C. Exh. 4) inside terminal B at
Newark Airport. No Servair employees are employed at
Newark Airport. The skycaps used by National at Newark
Airport are employed by Allied Aviation, Inc.
Finally, there was handbilling but no picketing at an
entrance to the JFK Airport at North Boundary Road and
150th Street.
The Mailing to Travel Agents
In March 1976, Respondent sent to travel agents in the
New York area a "fact sheet" with a covering letter dated
March 22, 1976, signed by Respondent's secretary-treasur-
er, William Genoese (G.C. Exh. 5). The mailing to the
travel agents consisted of: a two-page covering letter, the
leaflet incorporated in General Counsel's Exhibit 4, and
the seven-page fact sheet and explanation of the document.
The covering letter, dated March 22, 1976, signed, as
above-noted, by William F. Genoese, is addressed to:
Dear travel agent:
We are sending you the enclosed fact sheet because
we need your help in fighting for the rights of
professional Skycaps at Kennedy International Airport.
National Airlines, through a subcontract is trying to beat
down and exploit a group of Skycaps who have given
years of service to the airline industry.
All the facts are enclosed. It will take you only a minute
or two to read our factual run down and see what the
situation is.
What we are asking you to do is simply to avoid dealing
with National Airlines until the dispute is settled ... .10
[Emphasis supplied.]
'o The covering letter also states: "From time to time we shall hold
protest marches in front of the National terminal at JFK." In view of the
statement in this letter signed by Respondent's secretary-treasurer, this
The handbill states, in substance, that National Airlines
refused to hire employees who had been employed by
Allied Aviation and did not want a strong union represent-
ing skycaps. The handbill continues:
[W]e will be holding protest marches at the National
Airlines terminal at JFK Airport and we call on
everyone not to cross the protest lines and NOT TO FLY
NATIONAL UNDER ANY CIRCUMSTANCES UNTIL THIS
SELLOUT IS ENDED.
As National Airlines points out, there is no evidence that
National was involved in the hiring of the skycaps or,
indeed, in the labor policy of Servair. In addition, one of
General Counsel's witnesses, currently a Servair employee,
had previously worked for Allied and was a member of
Respondent.
As the General Counsel suggests, the same fact sheet also
contains the following statement:
[W]e are acting as a responsible union in condemning
the vicious tactics of National Airlines, and we call on
every other organization at JFK Airport and in the
South Jamaica community to join us in crusade to end
the sell out and run Servair out of the airport....
The General Counsel calls specific attention (G.C. brief)
to the appeal to "every other organization at JFK Airport"
by underlining that portion of the fact sheet above quoted.
Analysis and Conclusions: Picketing and
Handbilling
I. Respondent's responsibility
I have already found above that Respondent is responsi-
ble for the picketing, handbilling, and the letters to the
travel agents. Respondent paid for the hotel rooms in
which meetings were held discussing the picketing; Re-
spondent's officers and agents distributed the picket signs
and handbills to Local 732 shop stewards and other
members who were identified as making up the picket lines
in and about JFK Airport; and Respondent's officers were
identified as distributing the handbills at Newark Airport.
In addition Respondent's officers and agents, including
Genoese, Molle, and Dougherty, were prominent on the
picket lines and in the distribution of handbills at National
Airlines. The handbills distributed by Respondent speak of
its "protest" lines at National's JFK terminal. There is the
direct testimony, uncontroverted on this record that
Genoese, Respondent's chief officer, threatened to "picket
the ass" off Servair and National and put them out of
business at Kennedy. Under these circumstances, as noted
earlier in this Decision, it would be difficult for me to
conclude otherwise than that Respondent authorized and
ratified the picketing at National, the handbilling and the
distribution of letters to travel agents requesting their
participation in the total boycott of National Airlines.
constitutes further evidence that the picketing and handbilling at JFK at the
National terminal was authorized by Respondent.
398
LOCAL 732, TEAMSTERS
2. The object of picketing and handbilling
The picketing, including statements by the pickets, and
the handbilling were carried out almost entirely at places
far removed from the Servair office in Building 150 at JFK
Airport. The picketing, instead, was conducted solely at
National's premises at JFK Airport and at National's
premises in LaGuardia Airport, Newark Airport, and
National's ticket agencies in New York City. The record is
clear that, except for the passenger terminal at JFK, there
were no Sevair facilities much less employees at such
National sites. The picket signs, the statements of the
pickets, and the handbills except for the early picketing in
January, were totally directed at National Airlines. How-
ever, even the earlier picketing and handbilling, which were
directed primarily at National Airlines, but also at Servair,
were conducted at National Airline premises exclusively.
The handbills were distributed, among others, to employ-
ees of trucking lines making deliveries at National's
cargo i" facilities; passengers about to embark on a
National Airlines flight; and travel agents who do bookings
for passengers at National Airlines. The picket signs, the
oral appeals of the pickets, and, indeed, the handbills
themselves, all request that the persons receiving the
handbills do not cross the picket lines and do not fly
National Airlines.
The complaint alleges that by such conduct, Respondent
violated Section 8(b)(4)(i) and (ii)(B) of the Act.'
2 Insofar
as here relevant, Section 8(b)(4)(i) and (iiXB) prohibits
labor organizations from engaging in strikes and picketing,
among other forms of conduct, directed against employees
of secondary or neutral employers, and from threatening,
restraining, or coercing such secondary employers where,
in either case, an object of said conduct is to force or
require the secondary or neutral employer to cease doing
business with the primary employer or person with whom
u Picketing and handbilling also occurred at National cargo facilities
without reference to incoming trucks.
12 Sec. 8(bX4Xi) and (iiXB) of the Act provides as follows:
(b)
It shall be an unfair labor practice for a labor organization or its agents
(4Xi) 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 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 manufacturer, or to cease
doing business with any other person . .. Provided, That
nothing contained in this clause (B) shall be construed to make
the Union has a dispute. This section is generally known as
the secondary boycott provision, and, as the Board and the
courts have repeatedly pointed out, it is aimed at "shielding
unoffending employers and others from pressures and
controversies not their own." N.LR.B. v. Denver Building
and Construction Trades Council, et. al. [Gould & Preisner],
341 U.S. 675, 692 (1957). Even peaceful picketing for an
object of enmeshing neutral employers who have no direct
relationship with the quarrel between the primary employ-
er and the labor organization, satisfies the statutory
requirement of "forcing or requiring" the accomplishment
of that objective. International Brotherhood of Electrical
Workers, Local S0 , et al. [Samuel Langer] v. N. L R. B., 341
U.S. 694 (1951). As stated by Learned Hand, Chief Judge
of the Court of Appeals, Second Circuit:
The gravamen of a secondary boycott is that its
sanctions bear, not upon the employer who alone is a
party to the dispute, but upon some third party who has
no concern in it.'3
Viewed in the light of these principles, the record clearly
discloses that Respondent union violated Section 8(b)(4)i)
and (ii)B) of the Act. Of course, the most persuasive
evidence of the object of the picketing at the secondary
sites is William Genoese's threat to Carl Smitelli, Servair's
officer, at the International Motel at JFK that he would
"picket the ass off" Servair and National Airlines in order
to cause Servair to lose the contract with National Airlines.
Genoese told Smitelli that he would "do everything
possible" toward that end; and he told Smitelli that if
Servair did not agree to get the United Steel Workers
Union to surrender its collective-bargaining agreement
with Servair, Genoese would picket National and make life
very miserable." 14 The picket signs ("Don't Fly Nation-
al"), the pickets statements to passengers and others (Don't
unlawful, where not otherwise lawful, any primary strike or
primary picket ....
Sec. 8(bX4) contains further provisos, the last of which is as follows:
Provided further, That for the purposes of this paragraph (4) only,
nothing contained in such paragraph shall be construed to prohibit
publicity, other than picketing, for the purpose of truthfully advising
the public, including consumers and members of a labor organization,
that a product or products are produced by an employer with whom the
labor organization has a primary dispute 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, deliver,
or transport any goods, or not to perform any services, at the
establishment of the employer engaged in such distribution ....
13 International Brotherhood of Electrical Works, Local 501, et al [Samuel
Langer] v. N.LR.B., 181 F.2d 34, 37 (C.A. 2, 1950).
14 In view of this direct evidence of Respondent's express object to
enmesh and embroil National Airlines in the Union's dispute with Servair,
and even though the Servair skycaps were present at the National JFK
passenger terminal, it is unnecessary to analyze the question of whether
picketing limited to the presence of the primary employer at a secondary
situs was conducted in such a way as to minimize the impact of such
picketing on neutral employers and the employees of neutral employers and
the public. Cf. Local 662, Radio and Television Engineers, affiliated with
International Brotherhood of Electrical Workers, AFL-CIO (Middle South
Broadcasting Co.), 133 NLRB 1698 (1961); In the Matter of Sailors' Union of
the Pacific, AFL (Moore Drydock Company), 92 NLRB 547 (1950). Picketing
at all other National sites occurred in the total absence of Servair employees
(Continued)
399
0
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fly National), the handbills distributed to passengers, the
general public, and to employees of trucking firms making
deliveries to National all demonstrate that the object of the
picketing was to cause National to cease doing business
with Servair by picketing National and handbilling
supplier's employees and the public to engage in a general
boycott of National Airlines. The fact that the preliminary
picketing in January also mentioned Servair as an object of
the picketing is not material in view of the direct evidence
of what the object of the picketing was: to embroil
National Airlines in Respondent's dispute with Servair.
It is well settled that the words "induce or encourage"
are broad enough to include in them every form of
influence or persuasion. International Brotherhood of
Electrical Workers, Local 501 v. N.L.R.B., supra, 341 at
701-702. It is likewise well settled that if any object of
picketing is to subject the secondary employer to forbidden
pressure, then the picketing is illegal, Superior Derrick
Corp. v. N.L.R.B., 273 at 896; and no proof of success or
effectiveness of the picketing in creating a work stoppage is
necessary in order to establish a violation. N.L.R.B. v.
Associated Musicians, Local 802, AFL [Gotham Broadcast-
ing Corp.], 226 F.2d 900 (C.A. 2, 1955), cert. denied 351
U.S. 962.
In short, since the picketing was an inducement to the
employees of National, and of other employees doing
business at the National sites, to cease performing services
for National and their employers and to engage in a strike
against National and their respective employers, the
8(b)(4)(i)(B) violation is made out by the picketing by
Respondent on National's premises. The same picketing
found violative of Section 8(b)(4)(i)(B) must also be found
violative of Section 8(b)(4)(ii)(B) because the same picket-
ing constitutes unlawful "restraint or coercion of the
secondary employer (National) under Section (ii)." Interna-
tional Hod Carriers, Building and Common Labors' Union of
America, Local No. 1140, AFL-CIO (Gilmore Construction
Company, 127 NLRB 541 (1960), enfd. 285 F.2d 397 (C.A.
8, 1960); Local Union No. 767, Laborers International Union
of North America, AFL-CIO (Florida Planned Communities,
Inc.), 209 NLRB 586, 594 (1974). The ultimate aim of the
picketing here, to pressure National into causing Servair to
replace its employees with employees represented by
Respondent, constitutes a proscribed secondary boycott.
Refrigeration Contractors, Inc., v. Local Union No. 211,
Plumbers, 501 F.2d 668 (C.A. 5, 1974); N.L.R.B. v.
Electrical Workers, Local 3 [Wickham Construction Co.]
542 F.2d 860 (C.A. 2, 1976). Similarly, picketing to cause a
total consumer boycott violates Section 8(bX4)i) and
(ii)(B) since no identifiable struck service was attacked but
rather all of National's business. N.LR.B. v. Fruit and
Vegetable Packers & Warehousemen, Local 760 [Tree Fruits
Labor Relations Committee, Inc.], 377 U.S. 58 (1964).
Indeed, Genoese's threat to picket all the airlines was such
a wide-ranging threat of secondary action without regard
to the other airlines' connection with Servair, that all such
activity violated 8(b)(4) and (iiXB). Associated Musicians of
Greater New York, Local 802, American Federation of
Musicians, AFL-CIO (Huntington Town House, Inc.), 225
or goods or presence. Picketing at National's cargo facilities was obviously
designed not for passengers nor for Servair employees but for National's
cargo employees.
NLRB 559 (1976). However, the threat to Smitelli, while
evidence of an unlawful secondary object, is not unlawful
since it was addressed to the primary employer only.
3. Handbilling in conjunction with or in the area
of the picketing
As above-noted the handbills are a single-page document
with writing on both sides. On one side in large letters
measuring not less than 1-1/2 inches in length and 1 inch in
width, is, in thick black configuration, "Don't Fly National
Airlines." In addition, in letters in words appearing at the
bottom of the page which words are about one-half inch in
size are: "Please read other side." The reverse side, with
large black lettering at top and bottom of about 1 inch in
size reading "Don't Fly National Airlines" contains the
alleged history of the dispute in which National Airlines
appears prominently as the object of Respondent's conduct
and request for boycott. Servair is mentioned in the
handbill.
These handbills were distributed at the picket sites at
National's LaGuardia terminal and at National's New
York offices, in conjunction with persons wearing picket
signs at Newark Airport and at LaGuardia Airport. The
handbills were also part of the six-page packet to the travel
agents. They were distributed, in addition, to all who would
take them including passengers, truckdrivers delivering to
the cargo facilities of National at JFK and to the general
public in the area of Park Avenue, New York and Fifth
Avenue, New York, which are the National Airlines ticket
agencies.
Handbilling of this nature, conducted at the same time of
or in the same area as the picketing is the equivalent of the
picketing itself and is unprotected by the Act. It violates
Section 8(bX4)(i) and (iiXB). In Plumbers, Steamfitters &
Pipefitters Local No. 155 (The Kroger Co.), 209 NLRB 341
(1974), the Board accepted the court's reversal, The Kroger
Company v. N.L.R.B., 477 F.2d 1104, 1108 (1973), and
found that:
the distribution of handbills, containing substan-
tially the same message as the picket placards and
conducted simultaneously and in generally the same
area as the picketing, was tantamount to picketing and
was unprotected by the Act .... In Lumber and
Sawmill Workers Local Union No. 2797 (Stoltze Land
and Lumber Company), 156 NLRB 388, the Board
found that the distribution of handbills in circumstanc-
es strikingly similar to those involved here amounted to
picketing. Similarly, in Lawrence Typographical Union
No. 570 a/w International Typographical Union AFL-
CIO (Kansas Color Press, Inc.), 169 NLRB 279, enfd.
402 F.2d 452 (C.A. 10, 1968), the Board found that
handbilling in circumstances where it constituted a part
of the union's campaign, which included picketing, also
constituted picketing. See also Nashville Building and
Construction Trades Council (Castner-Knott Dry Goods
Store), 188 NLRB 470 (197).
400
LOCAL 732, TEAMSTERS
Thus, the handbilling in conjunction with the picketing
violates Section 8(bX4Xi) and (iiX)(B). As above-noted,
nothing in N.LR.B. v. Fruits and Vegetable Packers &
Warehousemen, Local 760 [Tree Fruits Labor Relations
Committee, Inc.], supra, or in N.LR.B. v. Servette, Inc., 377
U.S. 46 (1964), is to the contrary. For in the instant case,
the picketing, the picket signs, the direct evidence (includ-
ing Genoese's conversation with Smitelli), and the hand-
bills, all direct attention to the fact that the Union's animus
and conduct is directed principally against National
Airlines, the secondary employer; and since the picketing
and handbilling were all of a piece and occurred at or
about the same time and in the same area at JFK,
LaGuardia and National's New York City ticket offices the
handbilling takes on the quality of picketing and is conduct
outside the ambit of the publicity proviso to Section
8(b)(4)(B) and may be proscribed under Section 8(b)(4)(i)
and (ii)(B) of the Act. Cf. Teamsters Local 537 (Lohman
Sales Co.), 132 NLRB 901 (1961). Thus, as the court noted
in Honolulu Typographical Union No. 37 v. N.L.R.B. 401
F.2d 952, 957, fn. II (C.A.D.C., 1968), enfd. 167 NLRB
1030 (1967), the second proviso to Section 8(b)(4) makes it
lawful to seek the object of a total consumer boycott of the
secondary seller "so long as it is done by 'publicity other
than picketing.' " Here, as noted, the Board with court
approval, has concluded that such handbilling partakes of
the picketing itself and is therefore not to be protected
under the publicity proviso in Section 8(b)(4).
I conclude that the handbilling here was part of the
picketing in terms of object time and place of distribution,
and is not protected by the Act.
4. The inducement of the travel agents
Although Respondent's chief officer, William Genoese,
recalled signing the transmittal letter (covering G.C. Exh.
5), a six-page document) sent by Respondent to travel
agents, he could not recall when the letter was sent out or
how many were sent out; nor whether the document was
dispatched at or about the time he signed it.'5
On the other hand, the president of Tripper Travel
Service Limited testified that he received the six-page
document (G.C. 5) in March 1976. In addition, another
travel agent, Blue Sky Tours, New York, New York, also
received General Counsel's Exhibit 5 in March 1976,
allegedly the busy travel season.
The statements in the document, which has the handbill
attached, received by these travel agents contain the
following:
1. In the six-page fact sheet,' 6 under the heading
"Servair's Hiring Policy," there appears the following
sentence: "Servair refused to hire skycaps who were
15 Genoese, at the hearing, refused to positively identify a signature on a
10-page handwritten statement (G.C. Exh. 6) taken from him on March 15,
1976. by a Board agent during the investigative phase of the case. He also
refused to answer the question whether he remembered signing the
statement. The most Genoese would say is that it looked like his signature.
In addition. contrary to his statement, Genoese attempted to assert that
there were picket signs other than those stating "Don't Fly National" and
that picketing occurred at Servair premises. He alleged knowledge of these
inaccuracies but never communicated them to the Board. I do not credit
Genoese in this testimony. Furthermore. Servair's witness denied that it was
ever picketed. Genoese's credibility and veracity at the hearing were, in my
members of Local 732 or who had worked for Allied and
had built up equities in wages and fringe benefits." In fact,
a witness called by General Counsel, Noel Campbell, a
skycap employed by Servair since January 7, 1976, testified
that he was previously employed by Allied Aviation Inc.,
as a skycap and that he was formerly a member of Local
732.
2. On page 4 of the document mailed to travel agents,
under the heading "NLRB charges," the following ap-
pears:
When Servair came into the picture at National
Airlines, 20 Skycaps who had worked for National
when Allied Maintenance was National Airlines sub-
contractor went to Servair to apply for jobs. Also
another 150 professional Skycaps went to Servair for a
job.
Servair refused to give some of them application forms.
Others were hired and given uniforms and photo-
graphed, but later-when Servair learned that they
were union members-Servair refused to hire them.
As above-noted, Campbell was formerly a member of
Local 732 and was hired by Servair.
3. The same document sent to travel agents also notes
that its charges filed with the National Labor Relations
Board include the allegation that Servair "has refused to
hire applicants from employment as skycaps at National
Airlines terminal at JFK because said applicants were
members of or affiliated with Local 732 .... " Campbell
is a skycap at the passenger terminal at JFK Airport.
4. On page 2 there appears this sentence: "The reason
National and Servair were determined to keep out the
Teamsters was that they wanted to pay substandard wages
and cut fringe benefits to the bone by hiring new people-
an old trick of employers without scruples." Noel Camp-
bell testified that he was previously employed by Allied
Maintenance. Therefore he could not be considered as
"new people."
Respondent failed to controvert any of this evidence and
I credit it. In addition, Respondent failed to show that the
hiring of Campbell was merely a token or otherwise not
bonafide.
Analysis and Conclusions: Travel Agents
The proviso to Section 8(bX4) permits pure handbilling
untainted by picketing, which urges the public to engage in
a total consumer boycott of an offending secondary
employer, N.LR.B. v. Servette, Inc., supra, Lohman Sales
Co., supra,' Honolulu Typographical Union No. 37 v.
N.LR.B., supra. The limitations imposed by the proviso
judgment, generally undermined by his repeated attempts to avoid direct
answers to questions, his flippant testimony and the contradictions which
appear in his testimony when compared to the pretrial statement (which was
admitted in evidence, in view of his high station in Respondent, not only for
impeachment but for admissions against interest appearing therein). Except
as noted in this footnote, the facts in this case were adduced independent of
the statement.
'6 The fact sheet is devoted to the subject: "How National Airlines Is
Beating Down Skycaps at JFK Airport and Plotting [sic) Black Worker
Against Black Worker."
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
include that the handbills truthfully advise the public and
do not have proscribed effects. N.LR.B. v. Fruit and
Vegetable Packers Local 760 [Tree Fruits], supra, Local
Union No. 54, Sheet Metal Workers International Associa-
tion, AFL-CIO (Sakowitz, Inc.), 174 NLRB 362 (1969),
which are the cutting off of deliveries or inducing a
secondary employer's employees to cease their work.
There is no evidence here that the Union's communica-
tions, including handbills, delivered to the two travel
agencies had any such proscribed effects. It will be
assumed that the travel agencies stand in the same shoes as
the consuming "public" (which was also handbilled outside
National's New York City mid-town offices) since the
travel agencies, as suppliers of customers, are customer
conduits to National. It will be further assumed that for
purposes of the proviso, Servair produces a "product"
distributed by National. Honolulu Typographical Union No.
37 v. N.L.R.B., supra at 956, fn. 3, citing N.LR.B. v.
Servette, Inc., supra, Great Western Broadcasting Corpora-
tion, d/b/a/ KXTV v. N.L.R.B., 356 F.2d 434 (C.A. 9,
1966); Lohman Sales Co., supra; Electrical Workers Local
73 etc. (Northwestern Construction of Washington, Inc.), 134
NLRB 498 (1961).
What remains is the question whether the Respondent's
handbills "truthfully" advised the travel agents. They do
not, on two grounds.
In the first place, contrary to the proviso, they indicate
that the primary dispute-or at least a joint primary
dispute -is with National. In light of the conclusion below,
that National is not a joint employer of the skycaps,
Respondent's handbills are misleading to the extent that
they imply that the skycaps are the employees of National.
The handbills, of course, do not seek to limit the requested
boycott to situations where, as at JFK, National uses
skycaps with whose employer (Servair) Respondent has a
dispute. Rather, a total boycott of National Airlines by the
travel agents is requested by Respondent.
Secondly, the handbills manifest individual errors of fact,
focusing particularly on Servair's-and National's-al-
leged refusal to hire former employees of Allied Mainte-
nance or members of Respondent. The record shows the
direct contrary.
I therefore conclude that Respondent's handbills and
other materials directed to the travel agents do not
truthfully advise the public regarding (I) who it has the
dispute with, and (2) the refusal of National to permit
Servair to hire former employees of Allied Aviation or
members of Respondent. Thus, the handbills and mailings
to the travel agents are not protected by the proviso.
Nothing in International Union of Operating Engineers,
Local 139, AFL-CIO; Teamsters (Oak Construction, Inc.),
226 NLRB 759 (1976), a recent handbilling case, appears to
the contrary.
I regard these misstatements as substantial, in terms of
both the nature of the misstatements and their economic
consequences, the effects of which were to put unlawful
pressure on National. See Honolulu Typographical Union
No. 37 v. N.L.R.B., supra, at 958, fn. 13, distinguishing,
inter alia, N.L.R.B. v. Servette, Inc., supra, where minor
17 Respondent does not contend that National Airlines owns or controls
stock in Servair or exercises corporate control in any indirect fashion.
untrue statements in handbills were protected. Whether
this conclusion construing the proviso creates serious first
amendment problems is a matter for the Board and courts.
Respondent's Defense: Joint Employer
Respondent's principal defense is that National Airlines
so dominates and controls the skycaps 7 hired by Servair
that it must be considered the "co-employer" or "joint
employer" of the skycaps and thus is not a neutral
secondary employer entitled to the protection of Section
8(bX4).
Respondent relies principally on the 3-year agreement
terminating October 31, 1978, between National and
Servair (Resp. Exh. 2) wherein Servair agreed, inter alia, to:
. . . remove upon request from National any of its
employees who, in the opinion of National are guilty of
improper conduct or are not qualified to perform the
work assigned. [Article I; Services]
The agreement also provides that Servair agrees to
"consult regularly with National's local management
regarding the assignment of skycaps personnel."
The agreement provides that Servair will provide a
"manager" for the skycaps and all "necessary personnel
(and equipment)" who will "wear uniforms and identifica-
tion badges ... subject to the approval of National ... ."
The agreement provides that Servair shall perform its
services as an "independent contractor" and the skycaps
"shall be employees of [Servair] not National." All licenses,
fees and permits are the responsibility of Servair which also
agreed to indemnify and hold National harmless for
liability incurred by National as a result of Servair's
operations.
The evidence shows that National has never exercised
the contractual right of removing a Servair skycap.
Neutrality of employers under Section 8(b)(4) is not a
technical matter, but a matter of "common sense"
evaluation. N.LR.B. v. Local 810, IBT [Sid Harvey, Inc.],
460 F.2d 1 (C.A. 2, 1972), cert. denied 409 U.S. 1041
(1972).
The Board rule, recently restated in Cabot Corporation, et
al., 223 NLRB 1388 (1976), is that the question of "joint
employer" status must be decided upon all the facts; but
the determining factor in an owner-contractor situation is
whether the owner:
. . . exercises, or has the right to exercise, sufficient
control over the labor relations policies of the contrac-
tor or over the wages, hours, and working conditions of
the contractor's employees from which it may be
reasonably inferred that the owner is in fact an
employer of the employees.
In Cabot, as in the instant case, the owner had the
contractual right to require the complete removal of an
employee from the job; but, as here, had no right over the
hiring of the Servair skycaps or the complete removal of an
offending skycap from Servair's payroll. The Board found
402
LOCAL 732, TEAMSTERS
no joint employer status in Cabot notwithstanding that (a)
there, unlike the instant case, the owner made a daily
"head count" of the contractor's employees in the owner's
plant and (b) monitored and supervised each such
employee's work performance.
I also note that the Board, in Cabot (fn. 7) emphasized
the importance it attaches to a contractual declaration, as
in the instant case, that the contractor is an independent
contractor.
In view of Cabot, I view National's right to pass on the
Servair skycaps' uniforms and its insistence that Servair
"consult regularly" with National on the assignment of
skycaps a reasonable, mutual accomodation to satisfactory
execution of the contract rather than control over skycap
performance.
In view of the absence of evidence to show National's
control over hiring, firing, wages, hours, or the means of
performance of the work, I conclude that National is not
the joint employer of the Servair skycaps. Thus National is
not removed from the protection of Section 8(b)4)(i) and
(ii)(B).
To hold otherwise would be to translate the whole
complex of business relationships between National and
Servair, embodied in their contract and actual working
relationships, into a surrender of neutrality. The Board
does not normally predicate loss of neutral status even on
economic dependency-a factor not present here-absent
common ownership or managerial control. Local 14055,
United Steelworkers of America, AFL-CIO (The Dow
Chemical Company), 211 NLRB 649, 651 (1974) enforce-
ment denied on other grounds 524 F.2d 853 (C.A.D.C.,
1975); cert. granted, order vacated, and case remanded to
the Board 429 U.S. 807 (1976).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section IV,
above, occurring in connection with the operations of
Servair, have a close, intimate, and substantial relationship
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.
CONCLUSIONS OF LAW
i. Servair Maintenance, Inc., National Airlines, Inc.,
TWA Airlines, Inc., and Interline Trucking Co., and each
of them, is a person engaged in commerce or in an industry
affecting commerce within the meaning of Sections 2(1),
(6), (7) and 8(bX4) of the Act.
2. Local 732, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. In the period January-April 1976, Respondent,
Local 732 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, by
picketing, verbal appeals, and handbilling, induced indivi-
duals employed by National Airlines, Emery Airfreight
Co., TWA Airlines and Interline Trucking Co., to refuse to
handle or work on materials and to refuse to perform
services for their employees and by the above conduct and
by untruthful written communications to travel agents
coerced National Airlines with an object of forcing or
requiring National Airlines to cease doing business with
Servair, thereby violating Section 8(bX4Xi) and (iiXB) 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.
[Recommended Order omitted from publication.]
403