Local 868, Int'l Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Dec 16, 1965

156 N.L.R.B. 67 (N.L.R.B. 1965)

LOCAL 868, INT'L BROTHERHOOD OF TEAMSTERS 67
(b) Notify the Regional Director for Region 14, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.18
>B In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, «hat steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT grant employees wage increases under such circumstances as
will interfere with, restrain , of coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act. However, we are not required by said
Recommended Ordei to revoke any wage increases which we have heretofore
established.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist Office Employees International Union, Local No.
13, AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection , or to refrain
fiom any or all such activities.
All our employees are free to become or remain, or refrain from becoming or
iemaining, members of a labor organization of their own choosing.
ORDONT ORTHODONTIC LABORATORIES, INC,
Employer.
Dated------------------- By-------------------------------------------
(Representative ), ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions , they may communicate directly with the Board 's Regional Office, 4459 Fed-
eral Building , 1520 Maiket Street, St. Louis , Missouri , Telephone No. Main 2-4142.
Local 868, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [Mercer Storage Com-
pany, Inc.] and Mid-County Buick, Inc. Case No. 2-CC-974.
(formerly 29-CC-27). December 16, 1965
DECISION AND ORDER
On September 24, 1965, Trial Examiner Frederick U. Reel issued
his decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed limited exceptions and a brief in support thereof,
to which the General Counsel filed an answering brief. The General
Counsel also filed exceptions and a supporting brief.
156 NLRB No. 17.
217-919-66-vol. 156-0
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order.'
1In its exceptions, the Respondent seeks only a limitation of the cease and desist por-
tion of the Recommended Order in the event the primary and secondary employers be-
come allies within the meaning of that doctrine. Since the Recommended Order would
not make unlawful the conduct here complained of if, in fact, the employers become
allies as that term has been construed, we see no need to revise the Recommended Order.
In the absence of an exception, we adopt pro forma the Trial Examiner's finding that
Mercer Storage Company, Inc., and Mid-Country Buick, Inc., were not "allies" in the cir-
cumstances of this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter, heard before Trial Examiner Frederick U. Reel in New York City
on August 16, 1965,1 pursuant to a charge filed May 24 , and a complaint issued
July- 12, presents the question whether, .in the course of a lawful economic strike
against Mid-County Buick, Inc., herein called Mid-County , an agent of Local 868,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, herein called the Respondent , the Union , or Local 868, threatened that
the Union would picket a neutral employer unless the latter stopped doing business
with Mid-County , thereby violating Section 8 ( b) (4) (ii ) (B) of the Act. Upon the
entire record , including my observation of the witnesses , and after due consideration
of the brief filed by Local 868, I make the following: -
FINDINGS OF FACT
1. THE EMPLOYERS AND THE LABOR ORGANIZATION INVOLVED
Mid-County, a New York corporation engaged at Brooklyn in the sale and•servic-
ing of new and used cars under a franchise from Buick Division of General Motors,
has an annual gross revenue in excess of $500,000, and annually both receives from
and ships to points outside the State, automobiles valued in excess of $50,000. Mer-
cer Storage Company, Inc., herein called Mercer, a New York corporation engaged
in New York City in storing automobiles in transit from the manufacturer to retail
outlets, annually does a gross business in excess of $100,000, and receives for storage
from points outside the State, automobiles valued at more than $50,000. Both Mer-
cer and Mid-County are persons engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
If. THE UNFAIR LABOR PRACTICE
A. The alleged violation
Most of the automobiles sold by Mid-County are manufactured in Michigan. The
cars are then shipped by rail to a point in New Jersey and then trucked either directly
to Mid-County or the Mercer warehouse in New York. Prior to the strike of Mid-
1 All dates herein refer to the year 1965.
LOCAL 868, INT'L ' BROTHERHOOD OF TEAMSTERS, 69
County's salesmen, which commenced May. 1, most of-the cars were trucked directly
to Mid-County. On occasion, however, particularly in the fall and spring months, a
number of cars eventually destined for Mid-County would be trucked to Mercer.
When the salesmen, represented by Local 868, struck following a breakdown in nego-
tiations for a new contract and picketed Mid-County's premises, Mid-County arranged
to have its new cars trucked to a nearby dealer. This arrangement proved unsatis-
factory, and about May 20 Mid-County agreed to the manufacturer's suggestion that
all the new cars destined for Mid-County be trucked to the Mercer warehouse.
Shortly after this arrangement became effective, Charles McDonald, general' man-
ager of Mercer, held a telephone conversation with Jack Kinzie, who is alleged in
the complaint to be an agent of Local 868. According to McDonald, in the course of
this conversation Kinzie asked that Mercer stop receiving cars for Mid-County, and
threatened to picket Mercer's warehouse. McDonald looked into the matter, found
that the Mid-County business was a minor part of Mercer's volume, notified Mid-
County, the manufacturer, and the New Jersey trucker that Mercer would no longer
handle Mid-County cars, and sent word to Kinzie of Mercer's policy.
General Counsel alleges that by Kinzie's threat to picket Mercer unless Mercer
stopped handling Mid-County's cars, Local 868 violated Section 8(b) (4) (ii) (B),
which prohibits a labor organization or its agents from threatening any person with
the object of forcing him to stop doing business with any other person. Local 868
defends on the grounds that Kinzie was not its agent, that he did not threaten to
picket for the proscribed object, and that Mercer and Mid-County were allies so that
the threat, if uttered, did not violate the Act.
B. Kinzie's status
Kinzie testified that he was employed as business agent and recording secretary of
Local 917 of the International Brotherhood of Teamsters, a sister local of 868. Both
locals have offices in the same building, which also houses many other locals of the
Teamsters as well as other unions. John Burke, Kinzie's father-in-law, is president
of both Local 868 and Local 917, such dual presidency is not unusual in the New York
metropolitan area. Local 868 represents primarily automobile salesmen ; Local 917
represents mechanics, service employees, transporters, and parking lot attendants.
Although Kinzie disclaimed any connection with Local 868 and professed to have
little knowledge of its affairs, the -record discloses a considerable degree of activity
on his part in connection with the Mid-County strike.
Kinzie frequently appeared as a picket at the Mid-County premises, carrying Local
868 picket signs; he was there 15 to 20 times. Representatives of other locals also
participated in that picketing. But, in addition to picketing, Kinzie on at least five
occasions injected himself into matters relating to the Local 868-Mid-County dis-
pute. Early in the strike, Kinzie, while on the picket line, asked Mid-County's labor
consultant, Hyman Isaacs, why the strike could not be settled, adding that it had
to be settled sometime. The following month, after meeting with Isaacs on another
matter concerning Local 917, Kinzie talked with Isaacs for an additional 20 minutes
on the Mid-County affair, reviewing its history and urging settlement. Two weeks
before the hearing, Kinzie, while picketing Mid-County, asked Eugene Malice,"
owner of Mid-County, when the strike would be settled and whether there was any-
thing he (Kinzie) could do to open the door to a settlement. Early in the strike
Kinzie telephoned the New Jersey trucker, asked if the latter knew there was a strike
at Mid-County, and inquired whether the trucker would continue to deliver cars to
Mid-County. Finally, Kinzie, although denying the threat McDonald attributed to
him, admitted that in a telephone conversation he asked McDonald, who had a con-
tract with Local 814 of the Teamsters, to "cooperate with us" by not handling cars
for Mid-County. According to McDonald, during this telephone conversation, Burke,
president of Locals 868 and 917, cut in to repeat Kinzie's request "about asking our
cooperation in not receiving Mid-County's cars, and at that point Mr. Kinzie got back
on the telephone and informed [McDonald] that [Kinzie] had authority from the
Joint Council to put pickets at [Mercer's] warehouse." Burke was not called as a
witness, and Kinzie, although denying that his threat to picket concerned the Mid-
County matter, did not deny that Burke had participated in the conversation.
On these facts, I find that Kinzie was an agent of Local 868, and that it is respon-
sible for any unlawful threat he uttered to McDonald concerning the Mid-County
matter. Kinzie's repeated injection of himself into the Local 868 affair, including
approaches to settle the strike by overtures to Mid-County's labor consultant and to
2 The last name is accented on the second syllable , and pronounced "Mahlease."
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its owner, and his conversation with Mid-County's suppliers concerning it, render
suspect his unconvincing explanation that he engaged in each of those conversations
"as an extra though" and not for a "professional reason" but solely because he
thought "any strike is a foolish thing unless it's for just cause" and he "felt that if
[he] could [he] would attempt to settle the strike." Finally, the fact that Burke,
president of Local 868, joined in the McDonald telephone conversation following the
same ideas Kinzie had discussed, is some evidence that Local 868 was aware of and
did not repudiate but instead ratified Kinzie's efforts in its behalf.
C. The illegal object
Kinzie, admitting that he threatened to picket Mercer, testified that his object in
so doing was to further the interest of Local 917 in organizing Mercer's employees,
and not to affect Mercer's relations with Mid-County. The record establishes that
some weeks before the strike began at Mid-County, Kinzie called on McDonald at
the Mercer warehouse and expressed interest in organizing McDonald's transporters
on behalf of Local 917. McDonald replied that he was not certain whether Mercer's
contract with Local 814 covered the transporters. In later conversations, according
to Kinzie, McDonald was evasive as to whether Local 814 covered these employees,
but told Kinzie that if Kinzie signed up the men, McDonald would be willing to
negotiate. Kinzie, who never received signed cards from any of the Mercer employ-
ees, then decided (according to his testimony) that he would set up an organizational
picket line, and it was this picketing with which he threatened McDonald. During
one of his conversations with McDonald, according to Kinzie, he did invite McDon-
ald's cooperation in withholding cars from Mid-County.
I regard Kinzie's testimony as implausible, and I credit the testimony of McDon-
ald, a comparatively disinterested witness. I therefore find that Kinzie, acting as
an agent of Local 868 and in a telephone conversation in which the president of
Local 868 participated, threatened to picket Mercer with the object of forcing Mer-
cer to stop doing business with Mid-County.
D. The "ally" defense
Local 868 argues that it would have been legally justified in picketing Mercer to
force it to stop handling Mid-County cars because Mercer and Mid-County were
allies. It is true that Mercer's business with Mid-County increased as the result of
the strike, and that Mercer was handling cars for Mid-County which would not have
gone to Mercer's premises but for the strike. But this is not enough to invoke the
"ally" doctrine or to make Mercer's premises an extension of the situs of the primary
dispute. The "ally" doctrine may be invoked where an otherwise neutral employer
"knowingly does work which would otherwise be done by the striking employee."
N.L.R.B. v. Business Machine and Office Appliance Mechanics Conference Board,
Local 459, International Union of Electrical, Radio & Machine Workers, CIO (Royal
Typewriter Co.), 228 F. 2d 553, 559 (C.A. 2), cert. denied 351 U.S. 962. But in
the instant case the striking employees were salesmen, and none of their work was
performed at Mercer's warehouse or by Mercer employees. See also N.L.R.B. v.
Local 810, Steel, Metals, Alloys Hardware Fabricators, International Brotherhood
of Teamsters, etc. (Fein Can Corp. & Advance Trucking Corp.) 299 F. 2d 636, 637
(C.A. 2). As in that case, so here, the "neutral" employer "did not undertake
`struck work,' . . . there was no overlapping of management functions ... and there
was no domination and control which would justify a refusal to recognize the separate
status of each of them ...." The court's conclusion there, "under these circum-
stances we do not think that the `ally' doctrine is applicable" must also follow here.
To be sure, the purpose and effect of storing Mid-County's cars at Mercer was to
avoid the impact of the lawful picketing at Mid-County and assist the latter in com-
bating the strike. But under the present statute, as authoritatively construed, these
considerations do not amount to legal justification for involving the neutral employer
in a labor controversy to which he is otherwise a stranger. See N.L.R.B. v. Western
States Regional Council, No. 3, International Woodworkers of America, AFL-CIO,
et al., (Priest Logging, Inc.) 319 F. 2d 655, 657, 658 (C.A. 9).
III. THE REMEDY
Having found that Local 868 has violated Section 8(b) (4) (ii) (b) of the Act, I
shall recommend that it cease and desist therefrom, and take certain affirmative action
necessary to effectuate the policies of the Act.
LOCAL 868, INT'L BROTHERHOOD OF TEAMSTERS 71
CONCLUSION OF LAW
By threatening to picket Mercer's premises with the object of forcing Mercer to
stop doing business with Mid-County, Local 868 has engaged in an unfair labor
practice- affecting commerce within the meaning of Section 8(b)(4)(ii)(B) and Sec-
tion 2(6) (7) of the Act.
RECOMMENDED ORDER
Accordingly, upon the foregoing findings of fact and conclusion of law and on
the entire record in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that issuance of the following: Respondent,
Local 868, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, agents, and representatives, shall:
1. Cease and desist from threatening, coercing, or restraining Mercer Storage
Company, Inc., with the object of forcing or requiring Mercer Storage Company,
Inc., to cease doing business with Mid-County Buick, Inc.
2. Take the following affirmative action designed to effectuate the policies of
the Act.
(a) Post in the Respondent's business offices and meeting halls copies of the
attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the
Regional Director for Region 2, shall, after being duly signed by an authorized rep-
resentative of the Respondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that such notices
are not altered, defaced, or covered by any other material. Upon request of the
Regional Director, the Respondent shall supply him with a sufficient number of
signed copies for posting by Mercer Storage Company, Inc., and Mid-County Buick,
Inc., if they desire to do so, at their respective places of business.
(b) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Decision and Recommended Order, what steps the Respondent
has taken to comply herewith.4
I In the event this Recommended Order Is adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer" in the notice. In the further event that the Board's Order is enforced by a decree
of a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
+ In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 868, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Mercer Storage Company, Inc.,
with the object of forcing or requiring it to cease doing business with Mid-
County Buick, Inc.
LOCAL 868, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative), (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
751-5500.