Teamsters, Etc., Local 901, IBTCW & H of America

National Labor Relations Board - Board Decisions

May 12, 1964

146 N.L.R.B. 1542 (N.L.R.B. 1964)

1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all of such activities.
WE HEREBY disestablish Employee-Management Relations Council as the
representative of any of our employees.
WE WILL offer to Robert J. Sydow, Julius V. Zella, and Ewing M. Deasy
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, and
make them and Bobby G. Spears whole for any loss of pay suffered as a result
of the interference , restraint , coercion , and discrimination against them.
All of our employees are free to become, remain , or to refrain from becoming or
'remaining members of District No . 37, International Association of Machinists,
AFL-CIO, or any other labor organization.
AMBOX, INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
NOTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue , Houston , Texas, Telephone No. Capitol
8-0611 , Extension 271, if they have any question concerning this notice or com-
pliance with its provision.
Teamsters , Chauffeurs , Warehousemen and. Helpers Local 901,
IBTCW & H of America and Louis Velasco d/b/a Velasco
Trucking Co. Cases Nos. 24-CP-14 and 24-CC-87.. May 12,1964
DECISION AND ORDER
On February 18, 1964, Trial Examiner Laurence A. Knapp issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Decision. Thereafter, the Respondent and the
General Counsel filed exceptions to the Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
-Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem•,
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby af-
firmed. The Board has considered the Trial Examiner's Decision, the
-exceptions and briefs, and the entire record in these cases, and hereby
.adopts the findings, conclusions , and recommendations of the Trial
Examiner.
146 NLRB No. 177.
TEAMSTERS , ETC., LOCAL 901, IBTCW & H OF AMERICA 1543•
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as;
amended, the Board hereby adopts as its Order, the Order recom-
mended by-the Trial Examiner and orders that Respondent, Team
sters, Chauffeurs, Warehousemen and Helpers Local 901, IBTCW & H
of America, its officers, agents, and representatives, shall take the ac-
tion set forth in the Trial Examiner's Recommended Order,
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Charging Party in this case is Louis Velasco , an individual doing business.
as Velasco Trucking Co., hereinafter sometimes called "Velasco ." The Respondent
is Teamsters , Chauffeurs , Warehousemen and Helpers Local 901 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, here-
inafter sometimes called "Local 901 " or "Respondent ." After preliminary proce-
dural steps carried out with regularity ,' the case was heard before Trial Examiner
Laurence A. Knapp on October 30 to November 1, 1963.
THE ISSUES
The broad issues presented are whether Local 901 engaged in primary picketing
activities in violation of Section 8(b) (7) (A), and in secondary activities in violation
of Section 8(b) (4) (i) and (ii) (B) of the Act.
As to the alleged violation first stated, it is undisputed that Local 901 picketed'
Velasco during the period July 31 to August 12, 1963; that just prior to this picketing-
Velasco had recognized and entered into a collective -bargaining agreement with
another labor organization herein called the "SIU "; 2 and that Local 901 was not then
the certified representative of the Velasco employees . The main issues presented
with respect to this alleged violation are ( 1) whether recognition was an object of'
Local 901's picketing and (2 ) whether Velasco had lawfully recognized the SIU.
As to the alleged violations of Section 8(b)(4)(i ) and (ii )( B) of the Act, it is
undisputed that on August 1, 1963, Local 901 engaged in picketing at the premises of
two oceanic carriers known herein as Sea-Train and Sea-Land . The main issue-
presented as to these picketing (and some related ) activities is whether they were
second fronts in the recognitional war which allegedly inspired the picketing at
Velasco, or whether , as Local 901 contends , it picketed these other employers be-
cause of disputes peculiar to each and unrelated to the picketing at Velasco.
Upon the entire record in the case 3 and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES ; JURISDICTION OF THE BOARD
Describing first the businesses of the alleged secondary employers , Sea-Land Serv-
ice, Inc. ( Puerto Rico Division ), hereinafter called "Sea-Land ," and Sea-Train Lines
of Puerto Rico Inc., hereinafter called "Sea-Train ," are engaged in the transportation
of cargo by ship between continental United States and the Commonwealth of Puerto
Rico. These carriers provide the "trailership " form of service, that is, transporting
cargo contained in trailers or vans which when unloaded from the ships are connected'
to automotive trucks for delivery of the corresponding cargo to the ultimate con-
1 Upon charges duly filed and served , the complaint Issued on September 6, 1963. Re-
spondent 's undated answer was served on September 24,.1963. Certain amendments both'
to the complaint and the answer not necessary to describe were allowed at the hearing.
Respondent 's motion at the bearing to dismiss the complaint for want of proof is hereby
denied.
2 Seafarers International Union of North America , Atlantic, Gulf , Lakes and Inland'
Waters District , Puerto Rico Division , AFL-CIO.
3The transcript contains numerous errors but since -they are harmless I do not formally
correct them.
.1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signees4 Some of the cargo involved in this onward delivery service is transported
by specific Puerto Rican trucking firms designated, not by Sea-Land or Sea-Train,
but by the freight-forwarding companies. Such cargo was called "routed" freight
or "routed" trailers at the hearing. "Unrouted" cargo trailers or vans, on the other
hand, are delivered to the consignees by local trucking companies or firms selected
and engaged by Sea-Land or Sea-Train, as the case may be. Upon the evidence and
a stipulation of the parties at the hearing, Sea-Land and Sea-Train is each an instru-
mentality of commerce between continental United States and Puerto Rico, and each
is a person "engaged in commerce" and "hi an industry affecting commerce" within
the meaning of those terms as used in subdivisions (i) and (ii) of Section 8(b) (4)
of the Act.
Velasco is engaged in the general trucking business in Puerto Rico. A part of
this. business consists of services performed for Sea-Land and Sea-Train, that is, trans-
porting "unrouted" cargo trailers or vans from the Puerto Rican piers of these car-
riers to the ultimate consignees. At the hearing the parties stipulated and I find that
for such services to Sea-Land alone during the year preceding the hearing Velasco
received in excess of $50,000.5 Velasco's operations, as above described and found,
are in commerce and are operations affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATIONS INVOLVED
Respondent, Teamsters, Chauffeurs, Warehousemen and Helpers Local 901, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act; and,
as stipulated by the Respondent, Frank Chavez is secretary-treasurer of said labor
organization and an officer, representative, and agent thereof.
The SIU, see footnote 2, supra, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Principal events
The main occurrences of this case lend themselves to consolidated chronological
presentation, although evidentiary contradictions exist on many important fact
issues.
Such a contradiction exists between the testimony of Velasco and Chavez, secretary-
treasurer of Local 901, as to whether there took place an early event which, if it
happened, is distinctly pertinent. I resolve this conflict after setting forth the con-
flicting testimony of these two witnesses.
Velasco gave the version set forth in this paragraph: Sometime in March 1963 6 a
conversation took place (presumably by telephone) between Chavez and Velasco.
In the conversation, Chavez, without claiming that Local 901 represented the Velasco
employees, told Velasco he was "sending over" a contract for Velasco to sign.
Velasco told Chavez that "if he sent one of his men over and got my men to sign
his cards," he, Velasco, would recognize Local 901, but as matters stood refused to
agree to the Chavez proposition. The next day, and apparently solely on that day,
Local 901 picketed Velasco's premises.
Chavez denied that he had had any conversation with Velasco concerning recog-
nition in March, that he asked Velasco at that time to sign a contract with Local
901, that he had ever requested Velasco to bargain with Local 901, and that Velasco
had ever told him, prior to June 1963, that he would negotiate with Local 901 if the
latter had card authorizations from Velasco's employees.
4 Some additional description of Sea-Land's operations in commerce with Puerto Rico is
set iforth In Sea-Land Service, Inc., 137 NLRB 540, and as part of undisputed jurisdic-
tional facts stated by my colleague Foley in his recent Decision entitled Sed Land Service,
Inc.. et at.. Case No. 24-CA-1633 ['146 NLRB 931].
5On the evidence as well as upon a stipulation of the parties at the hearing, I find that
Velasco's business-meaning its onward transportation of incoming cargo from the piers
to the ultimate consignees' premises-is "a link in the chain of interstate commerce," that
Is, Is itself commerce between continental United States and Puerto Rico. For juris-
dictional purposes, it may further be noted that In a recent year Velasco had aggregate
gross receipts of $12,000 from trucking services rendered to agencies in Puerto Rico of
the United States Departments of the Army, Navy, and Post Office.
" All dates used hereafter in this Decision refer to the year 1963 unless otherwise stated.
TEAMSTERS, ETC., LOCAL 901, IBTCW & H OF AMERICA :1545
On the basis of my various findings hereinafter made concerning the credibility
of Chavez, I accept the testimony of Velasco and discredit the Chavez denials.
Accordingly, I find that in March 1963, Local 901, without pretending to possess
the necessary representative authority, requested Velasco to sign a collective-bargain-
ing agreement covering Velasco's employees.
On June 17, Velasco signed a contract with the SIU. About a week earlier,
Felix Diaz, a Velasco driver, presented to Velasco a number of SIU authorization
cards signed by himself and other Velasco employees, and on the basis of them
asked Velasco to recognize the SIU. Velasco and Medina, his general manager,
examined the cards and their signatures with which Velasco was familiar. As a re-
sult, Velasco determined that the cards covered a majority of his employees. He then
acceded to the recognition request, and, after a number of negotiation meetings
extending over several days, entered into the SIU contract. While at the hearing
and in its brief Respondent has sought to question SIU's designation by a majority
of the employees in question, the SIU majority is adequately established.?
Sometime between June 17 and July 3, Chavez learned of the execution of the
SIU-Velasco contract. As a result, be initiated a meeting between Velasco and
Local 901 representatives held at Velasco's offices on July 3.8 There are sharp
evidentiary conflicts on crucial aspects of this meeting, so that the disparate versions
will be stated, followed by my resolution of the conflicts.
On the Velasco side, the testimony of Mr. and Mrs. Velasco,9 who were both
present throughout the meeting, is in agreement although that of Mrs. Velasco is
more detailed. What follows is a summary of their combined accounts. Upon
entering their office, Chavez, whose attitude was one of "doing business right away,"
stated that he knew of the SIU contract, that this was a "mistake," and that he was
there to tell them how they could avoid the SIU contract and sign up with Local 901.
Asked how this could be done, Chavez stated they could sell their business to a new
owner-some "purchaser" they could trust-who would then sign a contract with
Local 901. But, as Chavez explained, the sale would be a fake one, that is,. it would
bind the purchaser to payments he would be unable to make, so that Velasco could,
under a kind of "foreclosure" clause, soon recapture the business.10 The Velascos
told Chavez that they would have to consult their lawyer and their accountant because
they were under the impression that what Chavez proposed could not be done. They
further stated that it was their employees' business to decide which union they wanted
and that Chavez would have to convert the employees from SIU to Local 901 if he
wanted to get a contract. Chavez replied that he would take care of this conversion
4 Under the STU contract, Velasco recognized the STU as the bargaining representative
of all employees "excluding supervisors, watchmen, and clerical employees." Ignoring an
individual named Castro (a bust ness-promotion functionary who plainly is not an employee
of Velasco at all ) and finding , as I do, that Dispatcher Juan Isidro Colon is a supervisor,
there were 10 employees involved, 9 drivers and 1 driver-helper. Of these 10, 7. counting
1 of 2 duplicates signed by the driver-helper (General Counsel's Exhibits Nos. 4-B and
4-11), signed SIU cards ( General Counsel 's Exhibits Nos. 4-A to 4-11). Moreover, a
majority would still obtain even if (although I find to the contrary) Dispatcher Colon,
who did not sign a card, and the part-time driver-helper (Augustin Santana Rodrigues)
who did, should, respectively, be included in and excluded from the unit, as Respondent
has contended.
At the hearing, Respondent's counsel questioned the authenticity of the signatures on
several of the SIU cards, on the basis of counsel's suggestion of dissimilarities between
these signatures and those of the corresponding employees on Velasco's payrolls (Re-
spondent's Exhibits Nos. 1-A to 1-E). But Respondent did not call any handwriting
expert or oiler any other evidence competent to put the question of authenticity of signa-
ture into question. In the circumstances, counsel's mere suggestion is insufficient to do so.
8 While there is no specific testimony by witnesses for the General Counsel as to which
side took the initiative to bring this meeting about, and the testimony of Chavez on the
question is in some conflict or confusion, on the basis of Chavez' statement at one point
that he "arranged" the meeting, and his statements and proposals at the meeting as I
later find them, I find that Chavez brought about the meeting.
G Mrs. Velasco performs the "financial work" for the Velasco firm.
18 Mrs. Velasco testified that Chavez first nominated her as a prospective purchaser;
that upon being. told that this would look "phony" he inquired whether there was not
anyone else they could trust ; that she then mentioned Medina, the Velasco manager, "to
find out how far be [Chavez] was going"; and that Chavez said Medina could be the
purchaser.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later and stated that he would return on July 5 to sign the contract. However, he
did not return on the 5th and never was in further touch with the Velascos on the
matter.
I will now summarize the pertinent testimony of Chavez: He arranged the meeting,
upon his having learned of the SIU contract, but did so because he had been told:
by one of his organizers that Velasco "wanted to have a meeting." At the meeting,.
Velasco informed him that he had signed the SIU contract. Chavez said there was.
no problem if the contract was "bona fide" and asked Velasco whether the SIU had
,presented proof of a majority. Velasco then showed Chavez 5 SIU cards and an
SIU letter claiming recognition, and said, when asked by Chavez, that he had 12
employees on his payroll. Chavez then stated to Velasco that he had a very serious.
problem on his hands because, under the law, he could not recognize a minority
union . Velasco said he did not know this, and asked what he could do to "get out
from under." Chavez told Velasco that he did not know-that this was Velasco's.
problem. Velasco then advanced the suggestion of selling the business to Mrs.
Velasco, the manager, or a third person. The meeting closed with Velasco stating-
that he would call Chavez the following Friday, July 5, but did not do so then, or
later. i
For reasons which I consider compelling, I reject Chavez' testimony and credit
that of the Velasco's as to what transpired at the July 3 meeting.
The Chavez version implies that, although Velasco did not become aware until'
after the meeting began that the SIU contract was illegal, he nevertheless sought a
meeting with Chavez at which the legality of that contract was the key, if not only,
subject considered. It is conceivable that, assuming Velasco arranged the meeting,
he had some other topic in mind, but there is no hint of this in Chavez' testimony or
.any other. In the circumstances, and with the entire record pregnant with Chavez'
disgruntled reaction against Velasco' s signing with the SIU, the only sensible interpre-
tation of the situation is, as I have previously found, that Chavez arranged the
meeting.
The Chavez version further implies that Velasco, upon first learning from Chavezi
during the meeting that the contract was illegal for lack of an SIU majority, then
proposed to Chavez a plan by which he could make with Local 901 a contract which
would be illegal for the very same reason that infected the contract he would be
.seeking to escape. There is, however, not the slightest suggestion in the Chavez
testimony or elsewhere in the record of any desire or reason on Velasco's part to
replace the SIU by Local 901,11 and in its absence I cannot assume that Velasco, who
appeared an intelligent man at the hearing, would be so' foolhardy as to concoct an
elaborate scheme by which he would succeed merely in leaping from the frying pan-
-into the fire. In any event, there is record evidence which leaves no room for a
vital element in the Chavez equation-Velasco's alleged ignorance of majority repre-
.sentation requirements-that is, (1) Chavez' own testimony that Velasco had for-
merly been a Teamster union organizer, a fact Chavez stressed in attributing to Vel-
asco familiarity with some trade-union practices, and (2) the steps I have found that
'Velasco took to determine the SIU majority before granting recognition to the STU.
Finally, Mrs. Velasco, the principal witness for the General Counsel concerning
this meeting, impressed me as an honest and trustworthy person with a clear recol-
lection and a forthright manner in testifying. Chavez, on the other hand, was a
cagey witness, and one given to conflicting and confusing testimony, lack of recollec-
tion, argumentative and "iffy" responses, and the like.
In the circumstances, I am unable to credit his version of this meeting. Rather,
I find that the meeting was initiated by Chavez for the purpose of protesting Velasco's•
recognition of the STU, that it was Chavez who proposed the fake sale plan as a
means of obtaining Local 901 recognition and a Local 901-Velasco contract, and'
that the other occurrences at the meeting were as testified by the Velascos.
With no further communication intervening, Local 901 began picketing at the
Velasco premises on July 31, and continued to do so until August 12. The pickets
carried signs, one of which (presumably in translation from the Spanish) read:
"Velasco discriminates against Local 901." Whether other signs bore different
legends and , if so, what the legends were, cannot be determined on this record.la
11 On the contrary, if the wage rates of the SIU contract were less than Local 901's area
wage standards as Chavez elsewhere testified , replacement of the SIU by Local 901 would'
have been to Velasco 's disadvantage.
12 Velasco remembered only the one legend stated in the text. Chavez, the only other
witness on the matter , saw none of the signs actually carried and hence I cannot accept
his qualified testimony , concerning other possible legends he saw' on signs being prepared'
at Local 901 's permises , as evidence of what the signs used actually said.
TEAMSTERS, ETC., LOCAL 901, IBTCW & H OF. AMERICA 1547
On that same morning , Chavez appeared at the premises of Sea-Land, where he
told a Sea-Land dispatcher not to assign any trailers to Velasco trucks.13 A little
later, Chavez told an individual named Charlie to count or check the Velasco trucks
entering or leaving the Sea-Land premises with vans.14 Colon, the Velasco dispatcher
who had witnessed these activities of Chavez, also noticed a few minutes later that a
Velasco truck which had already picked up a van at the Sea-Land pier was standing
undispatched near the Sea-Land dispatcher's office. Upon inquiry of Padro, one of
Sea-Land's receiver-dispatchers, Padro informed Colon that he had orders from Bailey,
manager of Sea-Land, not to dispatch any Velasco trucks. Thereafter, the loaded
Velasco truck turned back into Sea-Land's premises to uncouple the van. News of
the stoppage at Sea-Land reached Velasco, and he too was advised by Padro, the
Sea-Land dispatcher, that his superiors had instructed him not to let Velasco pick up
any trailers. Velasco thereupon spoke by telephone with Bailey, who told him to
wait "a couple hours until we get this situation settled."
Beginning and ending on the next day, August 1, Local 901 picketed the Sea-Land
premises, with the record failing to establish what legends the picket signs bore.
That same day, however, Local 901 also picketed Sea-Train's premises, with signs
which (translated into English) read "Sea Train discriminates against Teamsters
Local 901." According to Carver, Sea-Train's manager, the following conversation
took place when he asked Chavez that afternoon what was the reason for the picket
line: Chavez replied, "You know." Carver asked if "it was the Velasco case" and
Chavez replied, "Yes." Carver then asked what could be done to get the picket line
removed and Chavez told him "give no more boxes [i .e. vans or trailers] to Velasco."
Carver agreed to this condition and within an hour the picket line was removed. In
addition to this testimony, Chavez himself admitted (after having earlier flatly denied
that he made any such request) that he may have asked Carver not.to give any cargo
to Velasco.is
I credit Carver's testimony. It follows that I do not accept Chavez' further ex-
planation to the effect that Local 901 picketed Sea-Train "because we heard-maybe
from the employees-that this company was discriminating against" truckers under
contract with Local 901. While Chavez made such a complaint, and Carver denied
it, during the conversation, Chavez did not explicitly testify that'he then told Carver
-that the picketing was prompted solely by this complaint and not by Local 901's
'a Chavez admitted speaking to the dispatcher but stated at one point that he "could not
recall ," and at another that he did not "believe," that be told the dispatcher not to give"
any vans to Velasco. He did, however, acknowledge that he "may" have told the dis-
patcher that there existed "an economic problem with Velasco." Chavez' Inability to deny
that he made the statement attributed to him , coupled with his admitted reference to
Local 901 as having a dispute with Velasco, serve in my mind to corroborate the other
testimony I credit that he did tell the Sea-Land dispatcher not to give any vans to Velasco.
"Chavez' testimony concerning this incident well illustrates the reasons for reserve con-
cerning his credibility and reliability. After boxing with counsel for the General Counsel
for some time as to which particular "Charlie" counsel was referring to, Chavez later
identified "Charlie" as an independent truckdriver obviously well known to him and ad-
mitted that he did ask "Charlie" to make a note of Velasco trucks arriving and departing
with vans at the entrance to Sea-Land 's premises . A brief time later, and while still under
examination by counsel for the General Counsel, Chavez denied that he had testified that
he asked "Charlie" to note the Velasco trucks, denied that this is what be had said to
"Charlie," and asserted that he merely asked ' CCharlle" to "keep me advised if anything
happened or things of that nature."
's Chavez' disquieting manner of, testifying on critical fact Issues is further illustrated
by the following portions of his testimony , while under patient examination by his own
counsel , concerning his conversation with Carver:
Q. Did you bear [Mr. Carver] when he testified yesterday?
A. Yes.
Q. He testified that you also requested him not to haul freight of Velasco which
was on strike.
A. I do not remember that I did, but if I did it was no violation of law and I
might have asked him-I do not remember, but if I did the law permits me to ask
him because 1 am not going directly to the employees man to man.
Q. It might have transpired that through this conversation about discrimination
with Mr. Carver there was mention made of Velasco?
A. I do not think there was-I do not deny that there was.
Q. Mr. Carver testified to that directly.
A. I do not. know-I, do not remember-I may have said something of Velasco-
I cannot recall-I do•not believe that I violated any law even if I did.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dispute with Velasco; and a fair reading of the Carver testimony warrants the con-
clusion that the Velasco dispute was the only reason Chavez gave when Carver asked
him to explain the picketing.16 Accordingly, I find that Local 901 picketed at Sea-
Train in support of its picketing at Velasco, that is, for the same object.
Turning now to the picketing at Sea-Land, Chavez' explanation is that it was in-
stituted to protest Sea-Land's default or delay in remitting to Local 901 certain health
and welfare contributions and union dues payable in respect of one Local 901 mem-
ber employed by Sea-Land. According to Respondent's evidence, these obligations
had been in arrears, variously, for some 7 to 8 months and when some resolution of
the matter was reached with Sea-Land Manager Bailey on August 1, Local 901 dis-
continued the picketing earlier instituted that day.
Respondent put in further proof, which I accept, that the payments due, and cer-
tain corresponding forms, were received from Sea-Land on August 15. But it does
-not follow merely from the fact of these arrears that their collection was the sole, or
any, object of the Sea-Land picketing on August 1. Any such conclusion would, on
this record, have to be rested solely on the testimonial assertion of Chavez that this
was the case.17 But quite apart from any contrary tendencies of the General Coun-
sel's evidence, there are in Chavez' testimony surrounding the alleged difficulty with
Sea-Land, conflicts, uncertainties, and inherent improbabilities which render one dis-
tinctly hesitant to believe that he ordered the Sea-Land picketing because of this
problem.
Thus, at one point Chavez did not know when he decided to picket Sea-Land and
moments later stated with positiveness that he made this decision on August 1, the day
of the picketing. As to what conversations be had had with Sea-Land Manager
Bailey concerning the arrears matter, his testimony was marked by such variations
and confusions as: "I had played with the idea of asking Bailey to straighten this
out" 3 to 4 months prior to the picketing; "I had asked Bailey ... many months prior
to the actual strike, to make up the arrears"; Chavez said "I think so" when asked
whether he had talked to Bailey 3 to 4 months prior to the picketing; and then, when
again asked the same question, added "there may have been continuing conversa-
tions," "a lot of them," with Bailey on the matter. Out of this maze of differing and
indefinite answers it is impossible to find any concrete and definitive statement by
Chavez that he had jogged Bailey on this matter at any time, either on an occasion
3 to 4 months prior to August 1 or at any other time.
Finally, as to when Sea-Land made the arrears payments, Chavez, after examining
the Sea-Land payment documents and while under examination by counsel for the
General Counsel, thrice testified, once "apparently" and twice conditionally, that
Local 901 received the payments on July 25, 1963. Challenged to explain how, with
the arrears already collected, he could have picketed a week later because of their
nonpayment, he claimed that although Sea-Land had paid all arrears due to July 25,
1963, the end of the arrears period shown on the documents, there would be "some
other remittances" due from Sea-Land in respect of the few days between July 25
and August 1. Hence, he said, it was these few days of arrears which were the basis
of the picketing. Under subsequent redirect examination by Respondent's counsel,
Chavez changed his testimony to state that the July 25, 1963, date shown on the docu-
ments and to which he had reference in testifying that Local 901 had received the
payments on that date, merely indicated the end of the period of arrears, and that
Local 901 picketed because the full amounts shown remained due.
Testimony of the foregoing character appears contrived and fragile, and leaves me
unable to credit the Chavez assertion that the arrears matter was the sole cause, or
any cause, of the Sea-Land picketing. In any case, throwing the General Counsel's
evidence into the balance requires rejection of the Chavez assertion. I find that the
target of the picketing at Sea-Land, like that at Sea-Train, was Velasco.
Ultimate Findings
1. The picketing at Velasco
In the light of my preceding findings the object of Local 901's picketing at Velasco
must now be determined. In determining this question, which is one of fact and not
19 While under examination by counsel for the General Counsel, Chavez could not identify
Carver as the manager of Sea-Train or recall any conversation with him. The next day,
however, when under examination by Respondent's counsel , Chavez clearly recalled his
conversation with Carver, the day it happened, and what he told Carver about alleged
discrimination.
17 Bailey, the Sea-Land manager with whom on August 1, according to Chavez , he dis-
cussed the arrears matter , was not called as a witness by either side.
TEAMSTERS, ETC., LOCAL 901, IBTCW & H OF AMERICA 1549
of assertion, three fact areas especially warrant exploration: (1) the nature and ob-
jects of Respondent's prepicketing conduct; (2) the picket-sign language; and (3)
Respondent's conduct and statements contemporaneous with the picketing. Applying
these criteria (with no other relevant factors apparent in this case), an inference of
imposing proportions arises that Local 901's objective was recognition. In the only
Chavez-Velasco dealings which preceded the picketing-their March conversation
and their July 3 meeting-attaining the status of recognized bargaining representa-
tive for Local 901 was Chavez' sole objective. And that this was a prize greatly
coveted by Chavez is manifest from the lengths he went to obtain it on both those
occasions. Having had no other visible problem with Velasco, reason and experience
dictate that what was the only known difference existing immediately prior to the
picketing continued to be and was the "problem" to which he ascribed. the picketing
on the day it began. By the same token, there was no other problem to which the
picket signs could have referred in charging Velasco with discrimination against (un-
fair treatment of) Local 901. And, as previously found, the direction in which the
foregoing circumstances point is explicitly confirmed by what Respondent, through
Chavez, did and said in instituting and explaining the picketing at Sea-Land and Sea-
Train. In short, Respondent's recognitional objective, dominant prior to the picket-
ing, remained so.'s
Respondent's contrary contentions rest on the testimony of Chavez that he ordered
the picketing in protest against Velasco's having entered into an allegedly illegal
"sweetheart" contract with the SIU, and to protest the allegedly "substandard" wage
scales fixed in that agreement. But Respondent produced no evidence having any
tendency to prove that the reasons so asserted at the hearing were, in fact, what
the picketing was all about. There were no such legends on the picket signs,19 and
no such explanations were made to Velasco or to the carriers drawn into the Velasco
dispute. There should also be borne in mind the failure of Respondent to file any
charge with the Board contesting the legality of the SIU contract; the failure of Re-
spondent's efforts at the hearing to turn up any "sweetheart" evidence surrounding
Velasco's recognition of or negotiations with the SIU; and Mrs. Velasco's testimony,
which I credit, that at the July 3 meeting Chavez offered to accept the wage rates of
the SIU contract if his plan for Local 901 recognition went -through. Those factors
strongly suggest that Chavez was not, in fact, genuinely concerned on "sweetheart"
contract and substandard wage grounds when he ordered the picketing; and that, to
the extent that he voiced them at the hearing, or on one possible occasion when the
picketing started,2° these were merely labels he utilized to denounce Velasco because
of the SIU recognition and contract?'
On the record as a whole, therefore, I find that Respondent's object in picketing
Velasco was recognitional in character, and that its picketing of Sea-Land and Sea-
Train, being applications of secondary pressure in support of the primary picketing
at Velasco, partook of the same objective .22
1e This case thus resembles , In this respect, Local 345, Retail .Store Employees Union
etc. (GEM of Syracuse, Inc.) (145 NLRB 1168, Issued January 21, 1964), the Janet
Sales case (136 NLRB 1564, 1568), the Woodward Motors case (135 NLRB 851), and
Educational Supply Service of California case (134 NLRB 1505).
.1B While Chavez implied, when under examination by Respondent's counsel, that there
were signs with such legends, his later diiect testimony on the subject was qualified and
speculative. (See footnote 12, supra.) He finally admitted, under cross-examination, that
he never saw the signs actually carried and that some signs may have charged Velasco
with discrimination against Local 901, the only legend which, as I have earlier found,
the evidence establishes was displayed.
20 Chavez testified that when the Velasco picketing began on July 31, he asked two
Velasco drivers to respect the -picket line and, in connection with that request, voiced the
"sweetheart" contract and substandard wage charges to them. For reasons evident from
this decision, I would give this testimony, If creditable, no material significance.
21 It may be noted in passing that a "sweetheart" contract protest normally Is lodged
by one of two labor organizations competing for recognition and thus is, in normal usage,
expressive of a recognitional objective by the protesting union. In this case, it is plain to
me, and I find, that Chavez' use of the "sweetheart" terminology is inseparably linked
with his recognition goal and his frustration because It had eluded him. It may further
be noted that where the area "standards" claim falls before evidence establishing that
recognition is the true object, as in this case, Section 8(b) (7) applies. See Local 1199,
Drug and Hospital Employees Union etc. ( Janet Sales Corporation), 136 NLRB 1564, 1568.
22 MJy findings that recognition by Velasco was Respondent's object in all three in-
stances necessarily Includes and Is intended to encompass a finding that recognition was
"an" object of this picketing, which Is all that Section 8(b) (4) and ( 7) require.
_1550 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
- There remains for consideration, with regard to the legality of the Velasco picket-
ing, one aspect of the question whether Velasco "lawfully recognized" the SIU .23
Respondent asserts in its brief that Velasco's recognition of the SIU violated the Act
sunder the Midwest Piping doctrine of the Board. But the Midwest Piping doctrine
refers to a situation in which a real question of representation is posed to an em-
ployer based upon rival organizational efforts and corresponding conflicting claims
.to representative status. In this case, however, there is no evidence of any such
.competing campaign by Local 901 or of any resulting claim or demand by Local 901.
Indeed, on the findings I have made, Local 901's motto was: "Recognize first and
,organize later."
Accordingly, I find that in picketing Velasco, Respondent violated Section 8(b) (7)
.(A) of the Act.
At Sea-Land, as previously found, on July 31 Chavez told a Sea-Land dispatcher
not to assign any cargo trailers to Velasco; and on August 1 Local 901 picketed at
Sea-Land and Sea-Train. The order, request, or appeal which Chavez made to the
Sea-Land dispatcher not to give any cargo to Velasco constituted inducing or encour-
aging this low-level employee to refuse to perform services within the meaning of
'Section 8(b)(4)(i), and since the objects of the appeal were forbidden, this conduct
-violated Section 8(b)(4)(i)(B). See Highway Truck Drivers and Helpers, Local
107, et al. v. N.L.R.B. (Virginia-Carolina Freight Lines), 273 F. 2d 815 (C.A.D.C.).24
And by its picketing of Sea-Land and Sea-Train on August 1 with, as I find, the
-same objects, Local 901 induced or encouraged individuals employed by these com-
panies to strike or to refuse to perform a part of their normal services for these
-companies, and threatened, coerced, and restrained these companies, in violation,
respectively, of Section 8(b) (4) (i) (B) and (ii) (B), of the Act.
I find, further, as alleged in paragraphs VIII and X of the complaint, that by the
Chavez statement to Manager Carver of Sea-Train on August 1, to the effect that
the Sea-Train picketing would continue unless Sea-Train stopped giving cargo vans
to Velasco, Local 901 threatened, coerced, and restrained Sea-Train for the objects
previously stated, in violation of Section 8(b) (4) (ii) (B) of the Act. A threat to
-continue picketing, like a threat to picket, and picketing itself, violates this section
when, as in this case, the other requirements of that section are met.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with the
-operations of Velasco, Sea-Land, and Sea-Train as set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce between
the States and the Commonwealth of Puerto Rico; and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
• Having found that Respondent has engaged in certain unfair labor practices, I
will recommend an order requiring it to cease and desist therefrom and to take
certain affirmative action to effectuate the policies of the Act.
Counsel for the General Counsel urges, with reference to Respondent's violations
of Section 8(b)(4), that a broad order issue, that is, one providing protection for
any and all secondary employers and any and all primary employers, against such
violations as Respondent committed in this case. With much of its brief devoted
to this matter, counsel for Respondent vigorously opposes this proposal.
23 Insofar as this question turns upon majority designation , I have already found that
the SIU was properly accredited.
24 See also Chauffeurs , Teamsters and Helpers Local Union No. 175, etc. (McJunkin
Corporation ), 128 NLRB 522, 523, 534 (the Miami incident), enfd. 294 F. 2d 261
(C.A.D.C.) ; International Brotherhood of Teamsters etc. (Alexander Warehouse & Sales
Company), 128 NLRB 916, 920-921 (Olson and Hamrick incidents) ; Highway Truck-
drivers and Helpers, Local No. 107, etc. et at. (Ries & Company, Inc.), 130 NLRB 943,
948 (inducement 0f employee Baradi), enfd. 300 F. 2d 317 (C.A. 3) ; International
Brotherhood of Teamsters etc., et at. (Overnite Transportation Company), 130 NLRB
1007, 1016-1017 (inducement of Hanna) ; Local 505, International Brotherhood of Team-
sters etc . et at . (Carolina Lumber Company), 130 NLRB 1438 (inducement of Persnn
Company employees and Foreman Clay) ; Sheet Metal Workers International Association,
Local Union No. 299, et at. (S. M. Kisner and Sons), 131 NLRB 1196, 1202-1203 (the
appeal to Asheraft) ; Local 101, International Union of Operating Engineers, AFL-CIO
(Ets-Hokin & Gal van, Inc.), 133 NLRB 1728, 1735, 1736 (the Edwards incident), enfd.
315 F. 2d 328 (C.A. 10).
TEAMSTERS, ETC., LOCAL 901, IBTCW & H OF AMERICA 1551
I have examined the many cases cited by both counsel, and others of the Board
and the courts dealing with this matter . Broadly speaking , the cases say that a
"broad" order is justified where a pattern of or proclivity toward violation has been
established, in one or more instances, with quantitative and qualitative judgments
entering importantly into the assessment made of the likelihood of future violations.
Upon this method of rationale, counsel for the General Counsel refers to earlier
Board decisions involving this Respondent. In the first, Valencia Baxt Express, Inc.,
137 NLRB 808, however, no secondary activity was involved and in contending in
that case that, as a matter of law, its primary strike for recognition was lawful,
Respondent presented contentions which were certainly respectable. In the second,
Editorial "El /mparcial" Inc., 134 NLRB 895, some varied secondary activity (in
support of a primary strike the legality of what was not challenged) was found to be
illegal 25 Finally, of course, I take some account of my findings in this case, although
they do not have the quality of Board findings.
In my judgment, the sort of Section 8(b) (4) cease-and-desist order which appears
desirable or warranted is one which includes others than Sea-Land and Sea-Train in
the area of protected secondary persons while limiting the protected primary employer
to Velasco. The results I reach are embodied in the Recommended Order set forth
below 2e
CONCLUSIONS OF LAW
1. Velasco, Sea-Land, and Sea-Train are each engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and, with respect to Sea-Land and
Sea-Train, within the meaning of Section 8(b) (4) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
3. Respondent picketed Velasco with an object of forcing Velasco to recognize
and bargain with it as the representative of his employees, and with an object of
forcing or requiring said employees to accept or select Respondent as their collective-
bargaining representative, when Respondent was not currently certified as such repre-
sentative and where Velasco had lawfully recognized another labor organization as
such representative and a question concerning representation could not appropriately
be raised under Section 9(c) of the Act. By such conduct, Respondent engaged in
unfair labor practices within the meaning of Section 8(b)(7) (A) of the Act.
4. Respondent induced and encouraged individuals employed by Sea-Land and
Sea-Train to engage in strikes, or in refusals in the course of their employment to
deliver or assign cargo to Velasco, or in refusals to perform services, and threatened,
coerced, and restrained Sea-Land and Sea-Train, with an object of forcing or recog-
nizing said companies to cease doing business with Velasco, and with a further object
of torcing or requiring. Velasco to recognize Respondent as the representative of
Velasco's employees, or forcing said employees to accept or select Respondent as
their collective-bargaining representative although Respondent had not been certified
as such representative under Section 9 of the Act. By the foregoing conduct, Re-
spondent engaged in unfair labor practices within the meaning of Section 8(b) (4) (i)
and (ii) (B ) of the Act 27
5. The aforesaid are unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the entire record in the, case, I recommend that the Respondent,
Teamsters, Chauffeurs, -Warehousemen and Helpers Local 901, IBTCW & H of
America; its agents, officers, representatives, successors, and assigns, shall:
1. Cease and desist from:
(a) Picketing, or causing to be picketed, or threatening to picket Louis Velasco,
doing business as Velasco Trucking Co., where an object thereof is to force or
251 have not consulted and attach no significance , for present purposes, to a third case
in which Respondent complied with an Intermediate Report, and in which, therefore,
there was no decision by the Board.
=8 This is the form of order approved by the Supreme Court In the IBEW case (341
U.S. 694, 705-706), and recommended by my colleague Somers and approved by the board
in Editorial "El !mparcial," Supra. In the respects I deem most relevant, I consider
these cases pertinent.
27 The complaint in this case does not allege that the Sea-Land and Sea-Train picketing
also violated Section 8(b) (7) (A). Thus, the case does not raise the open question whether
secondary picketing to force recognition by a primary employer violates this section as
well as Section 8(b) (4) (1) and (it) (B). See the I.G.C. Electric case, 142 NLRB 1418.
744-670-65-vol. 146- 9 9
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.require said Velasco to recognize or bargain with Respondent as the representative
of Velasco's employees, or forcing or requiring said employees to accept or select
Respondent as their collective-bargaining representative, where said Velasco has
lawfully recognized, in accordance with the National Labor Relations Act, as
amended, Seafarers International Union of North America, Atlantic, Gulf, Lakes
and Inland Waters District, Puerto Rico Division, AFL-CIO, or any other labor
organization, and a question concerning representation may not appropriately be
raised under Section 9(c) of the Act, unless Respondent is then currently certified as
the representative of the said employees of Velasco.
(b) Engaging in, or inducing or encouraging any individual employed by Sea-
Land Service, Inc., Puerto Rico Division, by Sea-Train Lines of P.R., Inc., or by
any other person engaged in commerce or in an industry affecting commerce to
engage in, any 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 perform any service, and from threatening, coercing, or restraining
either of the aforesaid Sea-Land or Sea-Train companies or any other person engaged
in commerce or in an industry affecting commerce, where (1) an object of Respond-
ent is to force or require either of said companies or any other such person to cease
doing business with Louis Velasco, doing business as Velasco Trucking Co., or
where (2) an object of Respondent is to force or require Louis Velasco, doing business
as Velasco Trucking Co., to recognize or bargain with Respondent as the representa-
tive of his employees unless Respondent has been certified as such representative
under the provisions of Section 9 of the National Labor Relations Act, as amended.
2. Take the following action necessary to effectuate the policies of the National
Labor Relations Act, as amended:
(a) Post in conspicuous places, including all places where notices to members of
Respondent are customarily posted, at its business offices and meeting halls in the
Commonwealth of Puerto Rico, copies of the attached notice marked "Appendix," in
Spanish translation.28 Copies of said notice, to be furnished in Spanish translation
by the Regional Director for the Twenty-fourth Region, shall, after being signed by
a duly authorized representative of Respondent, be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter, in such
conspicuous places. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Forthwith mail copies of the said notice to the said Regional Director at the
Regional Office of the National Labor Relations Board in Santurce, Puerto Rico,
after such copies have been signed as provided above, for posting by Louis Velasco,
if he so chooses, at the places where he customarily posts notices affecting his
employees.
(c) Notify the Regional Director for the Seventh Region, in writing, within 20
days from the date of receipt of this Decision, what steps Respondent has taken to
comply herewith.29
:a In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "recommended Order of a Trial
Examiner" 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."
:s In the event that this Recommended Order is 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, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS LOCAL 901, IBTCW & H OF AMERICA, AND TO EMPLOYEES OF
VELASCO TRUCKING CO.
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 picket, or cause to be picketed, or threaten to picket Velasco
Trucking Co., where our object is to force or require Velasco Trucking Co. to
recognize or bargain with us as the representative of Velasco Trucking Co.'s
employees or to force or require the employees of Velasco Trucking Co. to accept
or select us as their collective-bargaining representative, where Velasco Truck-
KVP SUTHERLAND PAPER CO., SUTHERLAND DIVISION 1553
ing Co ., has lawfully recognized , in accordance with the National Labor Rela-
tions Act, the SIU or any other labor organization and a question concerning
representation may not appropriately be raised under Section 9(c) of the said
Act, unless we are then certified by the National Labor Relations Board as the
representative of the employees of Velasco Trucking Co.
WE WILL NOT, by picketing or otherwise , induce or encourage any individual
employed by Sea-Land Service, Inc., Puerto Rico Division, by Sea-Train Lines
of P.R. Inc., or by any other person, to engage in a strike or a refusal to handle
freight or a refusal to perform any service , and WE WILL NOT, by picketing or
otherwise , threaten , coerce, or restrain , Sea-Land, Sea-Train, or any other per-
son, where our purpose is to force or require Sea-Land, Sea-Train, or any other
person to cease doing business with Velasco Trucking Co., or where our pur-
pose is to force or require Velasco Trucking Co. to recognize or bargain with
us unless we have been certified by the National Labor Relations Board as the
representative of the employees of Velasco Trucking Co.
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN
AND HELPERS , LOCAL 901, IBTCW & H
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.
Employees may communicate directly with the Board 's Regional Office, P. O. Box
11007, Fernandez Juncos Station , Santurce , Puerto Rico , Telephone No. 724-7171,
if they have any questions concerning this notice or compliance with its provisions.
KVP Sutherland Paper Company , Sutherland Division and
Amalgamated Lithographers of America, Charging Union and
United Papermakers and Paperworkers , AFL-CIO, and its
Local 1010. Case No. 7-CA-3834. May 12, 1964
SUPPLEMENTAL DECISION
On July 24, 1963, the Board issued its Decision and Order in the
above-entitled proceeding,' finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and ordering that
it cease and desist therefrom and take certain affirmative action, as set
forth therein. The Board, in finding that the Respondent refused to
bargain as of July 17, 1962, with the certified representative for the
lithographic unit, which heretofore had been found appropriate, spe-
cifically rejected as not material, and stated that it had not considered
or passed upon, the Employer's offer of proof relating the alleged
changes in said unit. On its own motion, the Board 2 has decided to
reconsider its decision in this respect and finds as follows regarding the
Employer's offer of proof.
In support of the contention that the lithographic unit is not appro-
priate because of changes in the Respondent's printing operation, the
1 143 NLRB 834.
a Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated Its
powers in connection with this case to a three -member panel [ Chairman McCulloch and
Members Leedom and Fanning].
146 NLRB No. 183.