Teamsters, Local 85

National Labor Relations Board - Board Decisions

Jan 14, 1970

180 N.L.R.B. 709 (N.L.R.B. 1970)

TEAMSTERS , LOCAL 85
Teamsters, Chauffeurs , Warehousemen and Helpers,
Local 85, International Brotherhood of Teamsters,
Chauffeurs ,, Warehousemen and Helpers of
America and Victory Transportation Service, Inc.
Teamsters, Chauffeurs, Warehousemen and Helpers,
Local 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and West Transportation, Inc. Cases
20-CB-1935, 20-CC-81 I, and 20-CC-827
January 14, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On August 25, 1969, Trial Examiner Herman
Marx issued his Decision in the above-entitled
proceeding , finding that Respondent had engaged in
and was engaging 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, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed a brief in support of the Trial
Examiner's Decision.
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.
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 recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 85, International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents , and representatives , shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The consolidated
complaints in the above cases, as amended and read
together, allege that the Respondent, a labor organization
(herein Local 85 or the Union),' assaulted and threatened
709
bodily harm to the manager of an enterprise known as E.
Martinoni Co. (herein Martinoni ) in the presence of
employees of Martinoni , and of another enterprise known
as Victory Transportation Service, Inc. (herein Victory)
for the purpose of causing such employees to adhere to
policies of the Union regarding the employment of certain
personnel called "lumpers"; that the Union thereby
violated Section 8(b)(1)(A) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.;
herein the Act), that the Union , in violation of Section
8(b)(4)(i )(B) of the Act, has induced employees of
Martinoni "to stop placing merchandise inside a Victory
truck ," with an object of forcing or requiring Martinoni
to cease doing business with Victory; and, with such an
object , has expressed threats to Martinoni ' s manager,
thereby violating Section 8(b)(4)(ii )(B) of the Act; that the
Union , in violation of Section 8(b)(4)(i)( B), has induced
employees of enterprises known as Berman - Helman, Inc.
(herein Berman), and Hellman Crane and Rigging
Company, Inc. (herein Hellman ) to discontinue unloading
materials from trucks operated by a firm known as West
Transportation , Inc. (herein West ), with an object of
forcing or requiring Berman and Hellman "and/or" an
enterprise called Grassi-American Company (herein
Grassi-American ) to cease doing business with West, and
that the Respondent , with such an object has made threats
to management personnel of Berman , Grassi-American
and Hellman , thereby violating Section 8(b)(4)(ii)(B) of
the Act.'
The Respondent Union has filed an answer to each of
the complaints , denying, in material substance , that it
committed the unfair labor practices imputed to it.
A hearing on the issues in the three consolidated cases
has been held before me, as duly designated Trial
Examiner. The General Counsel and Respondent appeared
through respective counsel ; neither of the Charging
Parties, Victory and West , entered an appearance ; and all
parties were afforded a full opportunity to adduce
evidence , examine and cross-examine witnesses, and
submit oral argument and briefs.
Upon the entire record , from my observation of the
demeanor of the witnesses , and having read and
considered a brief by the General Counsel, and a
memorandum in the form of a letter from the
Respondent 's counsel , submitted to me since the close of
the hearing, I make the following findings of fact:
'The full name of the Union is Teamsters , Chauffeurs, Warehousemen
and Helpers , Local 85, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
'Berman's firm name takes various forms in the record. The one used
here is the "full name" given by its superintendent, as it appears in the
transcript.
'The complaint in Case 20-CB-1935 was issued on November 8, 1968,
and is based upon a charge filed by Victory on October 21, 1968. The
complaint in Case 20-CC-827 was issued on November 8, 1968,
subsequently amended on the General Counsel's motion , and is based upon
a charge filed by West on September 12, 1968 The complaint in Case
20-CC- 811 was issued on September 20, 1968, amended on October 21,
1968, and is based upon a charge filed by Victory on July 9, 1968. By
order dated November 8, 1968, the Regional Director for Region 20 of the
National Labor Relations Board consolidated the three cases for hearing
Copies of the charges, the complaints , the amendments mentioned above,
and the order of consolidation have been duly served on the Respondent
and all other parties entitled thereto. A hearing on the issues in the
consolidated cases was begun on December 12, 1968, continued to, and
resumed , on April 1, 1969, and concluded on April 2, 1969, in San
Francisco , California
180 NLRB No. 109
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE EMPLOYERS INVOLVED; JURISDICTION
Victory is a California corporation; maintains a place
of business in San Jose, California, where it is engaged in
the trucking business ; and is , and has been at all material
times, an employer within the meaning of Section 2(2) of
the Act. During the year preceding the issuance of the
complaint in Case 20-CB-1935, and the year preceding the
complaint's issuance in Case 20-CC-8l 1, in the course and
conduct of its business operations , Victory received in
excess of $50,000 for transporting goods within California
for enterprises which, during the said years, have each
shipped goods valued in excess of $50,000 from points
within that state to locations outside thereof. By reason of
the services it rendered to such enterprises, and of their
interstate operations, Victory is, and has been at all
material times , engaged in interstate commerce, and in
operations affecting such commerce, within the meaning
of Section 2(6) and (7) of the Act, and the Board has
jurisdiction over the subject matter of the issues in Case
20-CB-1935 and Case 20-CC-811.
West Transportation, Inc. is a California corporation;
is engaged in the trucking business in Richmond,
California, where it maintains a truck terminal; and is,
and has been at all material times, an employer within the
meaning of Section 2(2) of the Act During the year
preceding the issuance of the complaint in Case
20-CC-827, in the course and conduct of its business
operations, West received in excess of $50,000 for
transporting goods within the State of California for
Grassi-American, which, during the said year, received at
its operations within the said state goods valued in excess
of $50,000 directly from suppliers located outside such
state. By reason of its rendition of services to
Grassi-American, and of the latter's interstate operations,
West is, and has been at all material times, engaged in
interstate commerce, and in operations affecting such
commerce, within the meaning of Section 2(6) and (7) of
the Act, and the Board has jurisdiction over the subject
matter of the issues in Case 20-CC-827.
Berman is a corporation; maintains a place of business
in Watsonville, California, where it is engaged, as a
contractor, in the business of erecting "precast panels" at
building construction sites. Hellman (whose business
address is not reflected in the record) is engaged, as a
contractor, in the business of erecting "precast concrete
block" at building construction sites. Martinoni is a
corporation; and maintains a place of business in South
San Francisco, California, where it is engaged in the
business of bottling and rectifying "distilled spirits for
private label customers." Grassi-American is a
corporation; maintains a place of business in South San
Francisco, California, where it is engaged in the
production of "precast concrete products ." Berman,
Hellman, Martinoni and Grassi-American are, and have
been at all material times, employers within the meaning
of Section 2(2) of the Act; persons within the meaning of
Sections 2(1) and 8(b)(4)(B) of the Act; and engaged in
commerce, and in operations affecting commerce, within
the meaning of Sections 2(6) and (7) and 8(b)(4)(B) of the
Act.'
'There is no clear showing that Grassi -American and Berman are
corporations , but I infer that they are from the fact that Grassi -American's
production manager refers to the firm at one point as "Grassi American
Corporation ," and Berman 's superintendent testified that the full name of
11. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material to the
issues here, a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
Local 85 represents truck drivers in San Francisco and
San Mateo Counties, in California; has contractual and
other collective bargaining relations, on behalf of such
employees, with employers who do business in those
counties; and regards both counties as its territorial
"jurisdiction".
Reduced to basics, the gravamen of the case the
General Counsel would make is that the Union brought
unlawful pressure to bear upon "secondary" or "neutral"
employers, by means of inducing cessations of work by
their employees, and by coercive conduct aimed at such
employers, in order to compel two motor carriers, Victory
and West, to comply with requirements of the Union
relating to employment and the operation, loading and
unloading of trucking equipment in its claimed territorial
"jurisdiction." As support for these claims, the General
Counsel offered evidence of incidents involving the loading
of Victory trucks at Martinoni's premises, and work
related to West trucking operations at Grassi-American's
premises, and at construction sites where Berman and
Hellman were engaged in operations. Findings and
conclusions regarding the alleged acts of misconduct
follow below.
B. The Allegations Involving Victory
Victory, whose headquarters are in Santa Clara
County, beyond the Union's asserted territorial
jurisdiction, employs drivers who are not represented by
the Union, and has no collective-bargaining relations with
the organization.
Martinoni is a subsidiary of a corporate enterprise
named Baruh Liquors Incorporated. Both are housed in
the same building in South San Francisco, within the
Union's claimed jurisdiction; share a loading dock at the
premises; and have some management personnel in
common, including the president of both enterprises,
Morton Baruh , and a warehouse manager , Robert
Wunner. Martinoni separately employs warehousemen
who are subject to Wunner's supervision. Martinoni has
no contract or other collective bargaining relations with
Local 85, and its warehousemen are represented by
his employer is "Berman -Heiman, Inc." However , the General Counsel's
case leaves one in doubt as to the corporate status and correct name of the
enterprise initially identified in the complaint in Case 20-CC-827 as
"Hellman Crane and Rigging Company." Upon the General Counsel's
motion at the hearing the complaint was amended to change the name to
"Hellman Crane and Rigging Company, Inc ", but a corresponding
amendment of the relevant answer, upon the Respondent's motion , had the
effect of putting the accuracy of the amended name in issue The General
Counsel offered no evidentiary support for the change he had secured
Undoubtedly, the name initially set forth in the complaint and the
amended name refer to the same business enterprise , but it is to be hoped
that at some stage in this proceeding the parties , by appropriate stipulation
or motion , will undertake to clarify the record to establish the correct
name of the enterprise , and the form in which it does business. In any
case, the designation " Hellman", as used herein , refers to the enterprise
variously described as "Hellman Crane and Rigging Company" and
"Hellman Crane and Rigging Company, Inc "
TEAMSTERS , LOCAL 85 711
another local of the international labor body ( herein
Teamsters) with which Local 85 is affiliated. Baruh
Liquors Incorporated employs truck drivers for
transportation and delivery of its products, and has
collective bargaining contract relations with Local 85
which represents the drivers. In contrast, Martinont
employs no drivers, delivering its products at the loading
dock to common motor carriers, including Victory,
retained and sent by Martinoni's customers. Victory's
services are used for that purpose more than those of any
other carrier and its trucks pick up loads of Martinoni
products at the loading dock almost daily.
On one such occasion in April 1968,1 while warehouse
employees of Martinoni were engaged in loading a Victory
truck with pallets containing Martinoni products,
conveying the pallets into the truck by automotive
fork-lift, a business representative or the Union, Dan
Flannigan, accompanied by another such agent, appeared
on the loading dock and raised his hand in a gesture
signifying that the employees should "stop" what they
were doing, and told them that they "could not" place the
pallets beyond a certain point on the dock, indicating the
edge facing the truck, or, in other words, that they were
to discontinue placing the pallets in the truck. Martinoni's
warehouse supervisor, Robert Wunner, hearing these
admonitions to the employees, remarked to Flannigan that
compliance with them would "slow down our
(Martinoni's) operations," and Flannigan then made
statements to the effect that he did not wish "to see
pickets all , over the place and your (Martinoni's)
operations shut down," that Martinoni "can't continue to
load trucks in this manner", and that the Union would
picket Martinoni' s premises if Martinoni continued to do
so. These remarks by Flannigan amounted to a threat by
the Union to picket the premises and shut down
Martinoni's operations if its employees continued or
resumed loading the trucks.
Upon Flannigan's admonitions to the loading
employees, they ceased their work and stood about; and
following his remarks to Wunner, the latter instructed the
employees not to load Victory trucks in the future, but to
place the pallets at "the edge of the dock" for loading by
the Victory driver.
This practice was followed until about the beginning of
May when Wunner, to expedite a heavy shipping schedule,
directed the warehouse personnel to resume bringing the
pallets directly into the Victory trucks. The employees
discontinued doing so about two weeks later when
Flannigan , appearing at the dock again while a Victory
truck was being loaded by Martinoni personnel, told
Wunner that he thought "we had this all settled", and
that Martinoni "can't continue to load the trucks in this
manner or you are going to have a problem." Wunner
thereupon directed the employees to resume the practice
of leaving the pallets on the dock for loading by the
driver, and they did so. In the light of the prior discussion
with Flannigan, and in the context of events, Flannigan's
prediction of a "problem" was, I find, an implied
reiteration of his prior threat.
Martinoni resumed direct loading of Victory trucks
again toward the end of June, and on July 3, Flannigan
threatened Wunner to much the same effect, coming to
the latter's office while a Victory truck was at the dock,
and telling him, in substance, that the direct loading
practice would have "to stop," and that if it continued
"there is going to be a problem and you could be faced
'All dates mentioned herein occurred in 1968 , unless otherwise specified
with a shutdown." Wunner thereupon proceeded to the
loading dock and again instructed the Martinoni
employees to discontinue the practice, while Flannigan
made telephone arrangements with an individual
designated by the Union as its "area Jumper," who has
the function, upon assignment, of aiding in loading and
unloading trucks, to come to the Martinoni dock and
assist the Victory driver in loading the truck. Wunner
suggested to the driver that he call Victory's dispatcher
and secure his, approval for the use of the "lumper." The
"lumper". appeared about 20 minutes later, and assisted
the driver in the loading operation. He was paid by
Victory, and, I find, was its employee in the loading
operation in which he took part.'
About the beginning of August, while a Victory truck
was at the dock for loading, and a "management
meeting" attended by Baruh, Wunner and other
management personnel was in progress inside the building,
Flannigan appeared at the meeting and told Baruh that
"we don't want any trouble here, but we are going to have
a problem if the pallets are run into Victory trucks and
they don't hire a "lumper," and that if that were not
done, Martinoni "could be faced with a shutdown." In the
light of preceding events, these remarks, I find, amounted
to a threat of economic pressure, by means of picketing or
a strike directed against Martinon i, unless Victory hired a
"lumper" on the occasions when Martinoni employees
loaded pallets of its products on Victory trucks.'
Whether Baruh made any response does not appear,
nor does the record tell us what loading practices
M-artinoni followed between Flannigan's last visit and one
to the loading dock by another business agent of the
Union, James Baker, late in September. Alleged
misconduct by Baker during his visit forms the basis for
the General Counsel's claim in Case 20-CC-1935 that
Baker threatened and assaulted Wunner in the presence of
Victory and Martinoni employees, with resulting unlawful
'Flannigan admittedly made arrangements for the "area lumper" to
come to the Martinont premises on two occasions, but he does not identify
the dates . It may be fairly inferred that one of the two occurred on July 3
under the circumstances Wunner describes.
'The findings above regarding Flannigan ' s activities at the Martmom
premises are based on Wunner 's testimony. I do not credit claims by
Flannigan that he never told any of Martinoni 's employees "to stop work"
or made any statements to Wunner regarding picketing or work stoppages
Flannigan appeared to me to be an evasive witness given to rambling in
volunteered and unresponsive directions . Thus, although denying that he
ever told any Martinont employee "to stop work," in response to a
subsequent question whether he had "raised his hand" and said "stop" on
the occasion described by Wunner , Flannigan was neither wholly
responsive nor candid, stating , " I might have got a little carried away,"
thus intimating some contradiction of his prior denial, and then embarked
on a volunteered claim that he had on several occasions asked Wunner
"could I sit down with the employees ," and that "it seems like every time
I walked out the door . I was told that they continued right where they
left off" Flannigan admittedly discussed Martinoni's loading practices
with Wunner on 4 or 5 occasions , and repeatedly objected to them, yet one
can glean little more from his account of the discussions than that he
voiced the wish that Martinoni's employees bring the products "to the lip
of the truck" (leave them at the edge of the dock ) if they were to be
"hand-stacked" in the truck; told Wunner that he wanted "no problems,"
but that Wunner seemed "to be creating them", and expressed wishes to
Wunner to "sit down with the employees," and "with Victory Trucking
Company " Why he or another representative of the Union could not thus
"sit down" without repeated expressions to Wunner of a wish to do so
does not appear, but, in any case , upon my appraisal of Flannigan and
Wunner, in the light of the total record , I am convinced that Flannigan
was more forceful in his demands upon Wunner than his testimony would
lead one to believe ; and that Wunner's description of his relations with
Flannigan is substantially closer to the facts than the latter ' s, and I have
made corresponding findings.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
impact on rights guaranteed employees by Section 7 of the
Act.
Baker came to the dock on the occasion in question
while two Victory trucks were drawn up to it. One was
attended by a Victory driver named David White, and the
other by a Victory driver named Adrian Lane. Baker
asked one of the Victory drivers whether he was going to
hire a "lumper"; received a negative reply; and noticing
that Lane was removing some loaded items from a pallet
inside his truck, and stacking them there, told Lane that
he was "hand stacking the load" (contrary to a
requirement of Local 85, described by its business
manager, Timothy Richardson, that such work be
performed by "a member from our jurisdiction"); and
directed a Martinoni employee, Manuel Perez, then on the
dock, to remove the pallet from the truck and place it at
the far edge of an adjustable "plate" or ramp that leads
from the edge of the dock to trucks in process of loading.
Perez complied.
Wunner, who was on the dock, protested to Baker that
he was departing from "an agreement (apparently a
reference to a prior arrangement with Flannigan) . . . that
we can load it to the lip of the dock" (apparently the edge
of the ramp nearest the truck), and Baker replied in
obscene terms to the effect that he did not care what
Wunner had been told previously, and that "[t]his is the
way it is going to be," or, in other words, as I infer, that
Martinoni would be required to leave pallets in the
loading process at the far edge of the ramp.
Baker, then "grabbed" Wunner by the arm, telling him,
"You and I are going outside and have a little meeting
outside," and "moved (Wunner) around the dock a little"
toward a door (leading to the street, as I infer). Wunner
"resisted" (by what force or means does not appear),
"things cooled down a little"; and Wunner went into an
office nearby. At one point or another in the course of
Baker's remarks, he told Wunner that if he did not
comply with the loading directive, the Union would post
"informational pickets" on the street outside the premises.
White, who heard Baker's remark to Lane about
"handstacking" (plainly, in the context of circumstances,
a directive to Lane that he was not to do such work
without using a "lumper" designated by the Union), and
Baker's instruction to Perez, and then went to a nearby
telephone to call Victory's office, saw the altercation from
the place where he was telephoning. It does not clearly
appear that other employees witnessed the affair, but it
may fairly be inferred that Perez and Lane did so, too.
Wunner returned to the dock from the office while
Baker was still in the area, and told the latter that it was
necessary to load the trucks The upshot was an
arrangement, proposed by Baker, that Martinoni load
pallets directly on one truck, and leave pallets for the
other "at the lip of the dock" (for loading by the Victory
driver, as I infer). Wunner conveyed these instructions to
Martinoni personnel; the loading proceeded in compliance
with them; and before he left the area, Baker came to
Wunner's office and said "You understand how this is to
go now," and Wunner replied that he understood.'
'Findings as to Baker's activities are based , in the main, on Wunner's
testimony , and to some extent on that of White who did not hear all that
Baker said to Wunner , having left for another part of the dock area to
make the telephone call White, unlike Wunner, does not quote Baker as
asking a Victory driver whether he was going to hire a "lumper ", but it
may be that the question was put to Lane, and, in any case , Baker makes
no denial that he put it. Baker 's version , in substance , is that both Victory
drivers were "hand -stacking" products from pallets in one of the trucks;
that he told Wunner not to load the pallets on the trucks because the
Baker's assertion that Wunner and he were "going
outside and have a little meeting" was, in the setting, a
threat to fight with Wunner and to inflict physical harm
on him; and Baker's conduct in grabbing Wunner by the
arm and moving him "around the dock a little" toward
the street constituted an assault on Wunner. Both the
threat and the assault, I find, were aimed at enforcing
Baker's requirement that Martinoni's personnel deposit
the pallets on the dock; and the Union's prohibition of
"hand-stack" loading by drivers who are not members of
Local 85, unless a "lumper" designated by the Union
assists in the operation.
The conduct of Flannigan and Baker is clearly
chargeable to the Union, and its root is to be found in its
claimed "jurisdiction" over truck-loading, or at least some
aspects of it, within the territorial area in which it does
business. According to its business manager, Timothy
Richardson, it has no objection to the loading of trucks
from other areas, without participation of "a man from
Local 85," if the operation is confined to pallet-loading,
but if the products are to be "hand-stacked" inside the
truck, whether from a pallet or otherwise, "there has to be
a man from our jurisdiction" or, in other words, a
"lumper" if the truck has no other member of Local 85
aboard.
The Union's work and territorial jurisdictional claims
are not the law of this case, nor do they vest any right in
it to dictate to Martinoni, by means of inducing work
stoppages of its employees or threats or other coercion of
its management, where to deposit its products, or the
extent to which it may load them, in the course of
delivering them to other enterprises. The nub of the
matter is that Section 8(b)(4)(B) is designed to shield
"unoffending employers and others from pressures in
controversies not their own" (National Woodwork Mfrs
Assn. v. N L.R.B., 386 U.S. 612, 627), and that the
evidence establishes in abundant measure that Martinoni
is an "unoffending" or, in other words, "neutral" or
"secondary", employer whose work of loading Victory
trucks the Union has sought to limit in order to bring
pressure to bear upon Victory to conform to the Union's
jurisdictional fiats.
There is no evidence of any demand upon the Victory
management by the Union prior to any of the episodes
drivers were "hand -stacking", and no "lumper " was present , that Wunner
disagreed , stating that the trucks were loaded with pallets and the drivers
were only "topping off or breaking down the load" (one pallet,
apparently ), that in an ensuing "verbal clash" with Wunner, Baker said
that "further occurrences of this nature " would force him "to put an
informational picket line to advertise to the public that Victory
transportation was unfair to Local 85", that he asked Wunner to have the
last pallet aboard a truck removed "because it was going to be
hand-stacked"; that Wunner thus instructed a Martinoni warehouseman,
that in the course of conversation and gesturing, Baker 's finger accidentally
touched Wunner when the latter turned toward him, that Wunner said,
"Don't threaten me or I ' ll call the police and have you escorted away",
that Baker then took Wunner by the arm "as you walk arm in arm with
somebody ," without "pushing," and said that if that were Wunner's
attitude , "we will go and discuss this thing out in the street", that Wunner
replied that that would not be necessary, and that that ended the
conversation Baker 's image of himself is , in my judgment, gentler than the
facts warrant, and I am persuaded that Wunner 's account is substantially
closer to the truth . Baker himself says that he was "very irate and upset"
because of Wunner's disregard of jurisdictional regulations of "our local
unions"; and, what is more, Wunner's account is corroborated in material
respects by White who goes somewhat beyond Wunner, testifying that after
Perez removed one pallet from Lane's truck, Baker directed him to remove
the rest ( it does not appear that this was done ), and that he saw Baker
"punching" Wunner, and that Baker "grabbed" Wunner's arm "with both
hands and forced him (Wunner ) down the dock "
TEAMSTERS , LOCAL 85 713
described above, but that the Union deemed itself to be
engaged in a dispute with Victory, at least over
"hand-stacking" by the latter's drivers without the
employment of "a man from Local 85," and that
Martinoni had the status of a "neutral" in that
controversy, is clear beyond cavil. Flannigan pictures
himself in his testimony as complaining to Wunner that
"every time I come into this place (Martinoni's), there
seems to be a problem with Victory Truck Lines;" and his
"problem," according to his testimony, was "the
jurisdictional dispute" over "hand-loading" between
Victory and the Union. Significantly, too, it was Victory,
and not Martinoni, who hired and paid for the "area
lumper" used at the premises, and it is evident from
Flannigan's testimony that he looked to Victory or its
drivers, and not to Martinoni, to provide the "lumper"
where one was needed to comply with the Union's
requirements. Indeed, counsel for the Respondent in his
letter memorandum describes Baker as feeling that
"Victory drivers should employ lumpers represented by
Local 85 to assist in the unloading" (sic), and that his
references to picketing in his discussion with Wunner were
"made in an attempt to pursue this primary dispute with
Victory." Flannigan, as is obvious, was serving the same
"primary dispute" in imposing requirements on Martinoni
that it leave the pallets on the dock.
Summarizing the matter, the Union's "hand-stack"
loading and related "lumper" requirements were aimed at
Victory; Martinoni had the status of a "neutral" in the
"primary dispute" between Victory and the Union;' and
the tactics aimed at compelling Martinoni to deposit the
pallets at the edge of the dock, or, in other words, to that
extent to cease doing business with Victory and
Martinoni's customers for whom Victory was performing
trucking services, were implementations of the Union's
primary purpose of having Victory observe the Union's
jurisdictional claims.
The Union nevertheless seeks dismissal of the
complaints in Cases 20-CB-1935 and 20-CC-811, both
based on charges filed by Victory, on the basis of evidence
that about a week after Baker's altercation with Wunner,
the Union, through Baker, reached an oral accord with
Victory regarding the latter's compliance with the Union's
"hand-stack" loading requirements; that Victory
subsequently sought leave of the Regional Director of the
Board's Twentieth Region for withdrawal of both charges;
and that the Regional Director refused by letter dated
November 1, 1968, addressed to Victory's counsel.
Harnessing this evidence to testimony by Wunner that
neither he nor Martinoni has any objection to the
withdrawal, the Respondent takes the position, expressed
at the hearing, that there has been "a complete settlement
of the dispute among the active parties, that is, the
charging party, the secondary party and Local 85," and
that thus the refusal to approve the withdrawal request,
and the subsequent prosecution of both cases, constituted
an "abuse of discretion" by the Regional Director.
Wunner gives no reason why neither he, who suffered
an assault by an agent of the Union, nor his employer,
who suffered disruption of its business operations at the
hands of the Union, has any objection to the withdrawal
'See Mechanical Contractors Association of Detroit , Inc. 177 NLRB
No. 14, holding that an issue whether a union 's action , put in question
under Section 8(b)(4)(B ), is directed at one person rather than another
'ban be resolved . by a consideration of two questions : ( I) What was
the union seeking'i (2) Was the person against whom the union directed its
action in a position to do anything about it ?" Obviously, Martinoni had no
control over the work of the drivers on Victory's trucks.
request, but, in any case, their position on the request is
immaterial if for no other reason than that they are not
parties to this proceeding
The Act creates public rights, unfair labor practice
proceedings are designed to vindicate and protect such
rights; by the express terms of Section 10(a) of the statute,
private dispositions of unfair labor practice allegations are
not binding on the Board;10 and the agency has expressly
provided, by Section 102.9 of its Rules and Regulations,
that a charge may be withdrawn prior to hearing "only
with the consent of the regional director with whom such
charge is filed." With these factors in mind, without
undertaking to define, or to suggest the existence of, any
boundaries for the authority committed to regional
directors, it is enough to note that the Union, as
Richardson's testimony makes evident, continues to insist
that if a truck is to be loaded by "hand-stacking" from
pallets inside the vehicle, "there has to be a member from
our jurisdiction working on the truck", and that the
Government has no assurance, merely because of the
private accord between Victory and the Union, that the
Union will not again resort to unlawful means such as
those portrayed in the record to impose its will upon
Martinoni or some other "neutral" employer. In short,
the Respondent's claim regarding the Regional Director's
action is without merit.ii
For the reasons stated, I find that by force of
Flannigan's direction to Martmoni's employees in April to
"stop" loading pallets on a Victory truck, the Union
induced and encouraged them to withhold services in the
course of their employment for an object proscribed by
Section 8(b)(4)(B) of the Act, thereby violating Section
8(b)(4)(i)(B) of the statute; and that as a result of each
threat made by Flannigan, as described above, the Union
thus violated Section 8(b)(4)(ii)(B) of the Act.':
As Baker's threat of physical harm to Wunner, and the
assault upon the latter, were implementations of what
were in effect requirements for membership in the Union
as a condition of employment in "hand-stack" loading
within its asserted jurisdiction, without the participation of
a "lumper" holding such membership, such conduct by
Baker in the presence of employees would have a natural
tendency to intimidate them into acceptance of, or
acquiescence in, the Union's requirements or policies
regarding membership in the organization as a condition
of employment, and thus tend to inhibit them in the full
and free exercise of rights guaranteed them by Section 7
of the Act I find, in short, that as a result of the threat of
physical harm, and of the assault, in the presence of one
or more employees, the Union restrained and coerced
employees in the exercise of such rights, and thereby
violated Section 8(b)(1)(A) of the Act."
"See, for example , N L R B v Robinson , 251 F 2d 639 (C A 6), and
Allied Industrial Workers, 174 NLRB No 61, fn I
"I reach this conclusion without regard to substantial evidence, yet to be
discussed , of violations of the Act by the Union in the West case (Case
20-CC-827), although I note my view that the findings in that case
underscore the propriety of the Regional Director ' s action
"The complaint in Case 20 -CC-811 alleges unlawful inducement and
encouragement of Martinoni's employees by Flannigan in May, July and
August , as well as in April As found above , the employees ceased loading
pallets on Victory trucks in May and July , but this was at Wunner's
direction , albeit under Flannigan's threats of picketing I see no need to
decide whether these cessations of pallet -loading may, because the threats
to Wunner brought them about, be attributed to the Union as unlawful
inducement and encouragement of the employees , within the meaning of
Section 8(b)(4)(i)(B ), since such a determination would neither add to, nor
detract from , the remedy to be recommended below
"International Woodworkers of America. ( WT Smith Lumber
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C The Allegations Involving West
West's Richmond truck terminal is in Contra Costa
County, beyond the Union's claimed territorial
jurisdiction; the firm's drivers are members of Local 315
of the Teamsters; and it has a collective bargaining
contract with that local affecting the drivers.
In February 1968, Richardson received information that
West was picking up freight in San Francisco and
delivering it within that area, and in the following month,
Richardson arranged a meeting at his office with two
representatives of West, Don Garcia and Peter Pardini, to
discuss the matter. At the meeting, which was held on or
about March 20, Richardson told Garcia and Pardini that
West "could not" pick up loads in Local 85's territorial
jurisdiction and deliver them in that area unless the
employees who did that work were members of Local 85.
The upshot of the meeting was that before its close West
executed and became a party to a pre-existing contract
(Resp. Exh. 3) between various locals of the Teamsters,
including Locals 315 and 85, and two associations of
employers; and that West's representatives and
Richardson reached an oral understanding that two of
West's employees, who would have occasion to pick up
and deliver freight in San Francisco, would transfer their
membership from Local 315 to Local 85.
The contract does not, for reasons that will appear,
control the issues affecting Grassi-American, Berman and
Hellman, and it will suffice to say that it prescribes terms
and conditions of employment of various classifications of
employees, including drivers, of employers subject to the
contract; and that it contains provisions (Article 45) that
(with certain exceptions clearly not relevant here) "only
persons working under the jurisdiction of this Agreement"
shall perform specified loading and unloading work.
Shortly after execution of the contract, Garcia and
Pardini talked to the Union's hiring hall "dispatcher"
about the transfer of membership, and he told them that
the employees in question had 30 days in which to make
the transfer, and to let the matter rest "until a future
time." A day or two later, an employers' association
which is signatory to the contract, and in which West
holds membership, advised West that under various
provisions of the contract, West's employees could pick up
and deliver freight in San Francisco without holding
membership in Local 85. At the time of the incidents
alleged as violations of the Act in Case 20-CC-827, West's
employees were not members of Local 85.
The first of these incidents occurred in July at a San
Francisco construction site known as the Mutual Benefit
Building, where Hellman was , and had been for some
time, engaged in erecting precast panels in the structure.
These had been produced by Grassi-American at its
premises in South San Francisco, and hauled from that
location to the building site by West in trucks operated by
its drivers.
On the day in question, a West driver, brought such a
load on a trailer, and ironworkers in Hellman's employ at
the project proceeded with the work of unloading the
trailer. While they were so engaged , the trailer load
became a subject of discussion between Hellman's project
superintendent, Fred Korst, and representatives of the
Union. The versions of what took place differ widely.
Company). 116 NLRB 507, enfd. 243 F.2d 74 (C.A 5), Wright Line
Division of Barry Wright Corporation . 146 NLRB 71. Baker 's conduct is
not alleged to have violated Section 8(b)(4XB ), and I thus make no
determination whether it did so
According to Korst, one John Cardinale came to the
project before the unloading was completed, identified
himself as a business agent of Local 85, and told Korst
that he was going "to stop" the superintendent from
"unloading any more West Transportation trucks"
because the Union had a dispute with West, and Korst
replied that he did not think that West's problem had
"anything to do" with Hellman, and that he would
continue with the unloading work. Then, Korst testified,
Cardinale told him that he "was going to take me (Korst)
out on the street and whip my ass," and that he was going
to have the "entire" job picketed; but walked to his car,
followed by Korst, and drove off without any combat.
Korst also testified that while this was in progress, the
work of unloading the trailer did not proceed, the
ironworkers standing about; that the work was resumed
upon his instructions after Cardinale left; that Garcia
came to the project site later, as did Richardson; and that
he observed Richardson and Garcia talking, but did not
hear what was said.
Denying that there was any cessation of work or that
he threatened Korst, Cardinale, who is in the Union's
employ as an organizer, gave testimony for the
Respondent to the effect that he visited the site because of
the "issue" of West's San Francisco pickup and delivery
operations "in our jurisdiction;" that he observed
ironworkers unloading the trailer; that he asked Korst
where "the Teamster" was," to which Korst replied that
West's drivers usually left the trailers and that the
ironworkers unloaded them; that he told Korst that "this
is wrong," and that members of Local 85 were supposed
to be there "all the time" (during the unloading process,
presumably), that "the tractor" that hauled the trailer
should be "under" it, and that "the Teamsters is supposed
to be standing by;" that Korst said that that was "your
problem . . . with West;" that he (Cardinale) then said
that we may have to put an informational picket line on
the trucks," and that it would be "up to you people
whether you want to honor our picket line;" that Korst
threatened to kick him "in the fanny;" that he replied that
he would "get my picket sign and picket the trucks," and
walked to his car followed by Korst who called him "a lot
of abusive names"; that he went to a telephone and called
Richardson who came to the job site about 20 to 30
minutes later with another representative of the Union,
James Rourke; that Garcia arrived shortly thereafter; and
that Garcia, another West supervisor (not previously
placed at the scene), and the Union's representatives went
to a nearby restaurant, with the result that an accord was
reached there that if two of West's drivers declined to
transfer to Local 85, West would hire two members of
that organization.
The Respondent also offered a version of events at the
site through Richardson. According to him, he, Rourke
and Cardinale had been riding together in a car when they
"happened" to pass the jobsite, saw ironworkers at work
on "a West trailer," which was unattended by a tractor,
and stopped. Richardson testified that he told the
ironworkers that they were "violating the rules" by
performing work "in our jurisdiction" without the
presence of "the teamster," that the ironworkers
thereupon ceased working on the vehicle; that he had a
discussion with Korst, a supervisory associate of the latter
(not identified by name), and Garcia, testifying that Korst
"According to Cardinale, he spoke to "one ironworker" whose name he
thinks was "Kroft," but it is evident from his testimony as a whole that
the "ironworker" was Korst.
TEAMSTERS , LOCAL 85
and his associate "asked if they could bring in" another
trucking firm "to do the work"; that he replied that he
did not care " as long as there is (a Local) 85 man on this
equipment," that Garcia said he would "transfer" West
drivers to Local 85 "immediately"; that he (Richardson)
then said that the unloading could proceed; and that that
was the end of the episode at the job site. According to
Richardson, he, Garcia and others, including Korst's
associate, then went to a nearby restaurant; and "nothing
happened in there that wasn't already settled."
Richardson and Cardinale are so materially far apart in
their versions as to leave one in the dark as to what the
Respondent contends took place at the site. Richardson
claims he "happened" to drive by the site with Rourke
and Cardinale; Cardinale says he came there alone, that
he telephoned Richardson after the discussion with Korst,
and that Richardson arrived about 20 minutes to a half
hour later. There is no indication in Cardinale's testimony
(or in that of Korst) that Richardson said anything either
to Korst or the employees; but Richardson depicts himself
as talking to Korst and ironworkers who were working on
the truck, and states that he can recall no "specific
conversation" between Cardinale and Korst. If Cardinale
is to be believed, the ironworkers "continued working"
while he was there, Korst rejected his complaint as the
Union's "problem" with West, and Korst was "very
indignant" and "abusive"; but Richardson, who would
lead one to believe that he was with Cardinale throughout
the latter's visit at the site, both having "happened" to
pass by car, according to Richardson, denies that
Cardinale said anything about picketing, asserting that he,
and not Cardinale, does "the talking if I am there";
pictures himself as admonishing the ironworkers against
"violating" the Union's "jurisdiction", and the employees
as suspending their work on the truck until he later gave
leave for it to proceed; and so far from depicting Korst as
"very indignant" and "abusive," claims that Korst "asked
if they could bring in" another motor carrier. According
to Cardinale, at the jobsite, Garcia asked whether "we can
iron this thing out," and that that was done at the
restaurant by an agreement by Garcia that either two
West drivers would join Local 85 or he would hire two
members of the organization; but Richardson claims that
"everything was settled" at the job site by an offer by
Garcia to "transfer" West drivers to Local 85
"immediately," and Richardson' s agreement that the
unloading work could proceed; and that nothing more was
"settled" in the restaurant.
Korst and Cardinale are mutually corroborative to the
extent that both describe a discussion between them
regarding the work on the West truck, and their
disagreement about the matter; and that there is no
indication by either that Richardson spoke either to
Hellman's employees or to Korst. It is also noteworthy
that Rourke, who testified, gave no testimony supporting
Richardson's account of his activities at the Mutual
Benefit site; and that Garcia, like Cardinale does not
support Richardson's claim that "everything was settled"
between himself and Garcia at the job site." I am
convinced, in short, that both Korst and Cardinale,
notwithstanding their differences, are far closer to the
truth of events at the site than Richardson, and that the
latter's account is not an acceptable basis for findings.
"Garcia differs with both Richardson and Cardinale as to what was said
in the restaurant , but I dispense with a recital of his version , since the
discussion there, whatever it was, does not materially affect the ultimate
issues herein.
715
But that does not mean that I credit Cardinale's
account of what passed between him and Korst whose
testimony is given supporting weight by other aspects of
the evidence. There is considerable evidence in the record
of directives, admonitions, and fiats by agents of Local 85
as to what employers or others who are in no way
obligated to obey may do in the Union's claimed
territorial jurisdiction. Thus, according to Richardson, a
motor carrier located outside the area may not pick up a
load within it and also deliver it there unless members of
Local 85 perform the work. Again, according to
Richardson, if pallets are to be loaded aboard a truck for
"hand-stacking" on the vehicle, "there has to be a
member from our jurisdiction working on the truck."
Translating these requirements into specifics, Flannigan
repeatedly admonished Martinoni not to load pallets on
Victory's trucks on Martinoni's own premises, although
the Union does not represent the employees of either
enterprise, and has no contract relations with either; he
instructed Martinoni's employees to "stop" their work on
at least one occasion; and he made threats to Martinoni
management personnel that Martinoni would be picketed
and shut down unless the Union's demands were obeyed.
Baker made much the same demand on Martinoni;
implemented the demand with a threat to picket the
enterprise, and to inflict bodily harm on Wunner; and
without a semblance of authority from Martinoni, directed
one of its employees to remove a pallet from a Victory
truck.
The behavior imputed to Cardinale is much of a piece
with that of Flannigan and Baker, and upon my
observation of Korst and Cardinale, I am convinced that
the latter, in pursuit of the "jurisdictional" requirements
to which Richardson gives such positive expression in his
testimony, spoke to Korst substantially as the latter
testified.
Crediting Korst, I find that Cardinale's statements to
Korst that he would "whip" Korst, and to have the
construction site picketed, amounted to a threat of
physical harm to Korst and a shutdown of all work at the
project, with an object of forcing or requiring Hellman to
cease doing business with West; and that by such
threatening remarks, the Union violated Section
8(b)(4)(ii)(B) of the Act.'s
On September 10, about 2 months later, Richardson
was involved in a somewhat similar controversy over the
unloading of a West truck at a construction site in San
Francisco known as the Crocker Building, where Berman
was engaged in erecting precast panels produced by
Grassi-American at its premises in South San Francisco,
and transported from there to the construction site by
West trucks operated by West drivers.
"It is evident from Korst 's testimony that he did not hear Cardinale
talking to the employees , and there is no other evidence that Cardinale did
so, although the unloading work was at a halt while he was there.
Whatever one may guess about the matter, the record does not establish
that Cardinale induced the work stoppage . It may be noted , in that regard,
that testimony by Korst that a second truck arrived while the first was
being unloaded , and that Cardinale "refused" to let the second vehicle
enter the premises for unloading , turned out to be hearsay , and was
stricken upon the Respondent's motion . It would not be unreasonable to
give face value effect to Richardson's claim that he persuaded the
ironworkers to cease unloading the trailer, but it is evident that the
General Counsel's case-in-chief imputes responsibility for the work
stoppage to Cardinale , and not Richardson, and in view of my evaluation
of Richardson 's testimony , I make no finding that he "induced and
encouraged" a work stoppage in violation of Section 8(bx4)(iXB) of the
Act. Under the circumstances , I see no need to speculate why he would
impute to himself responsibility for such a stoppage.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the relevant occasion at the Crocker site, a crew of
Berman employees, variously represented by labor
organizations other than Local 85, were engaged, with the
aid of a crane, in unloading a West trailer, which was
unattended by a tractor, when Richardson and Rourke
appeared at the scene. As Berman's superintendent,
Raymond Reddington, who was at the site, testified, his
attention was drawn to Richardson by a "heated
argument" between Richardson and members of the crew,
Richardson, in substance, telling the crew, which included
ironworkers, that they were not to proceed with the
unloading work because it "was not ironworkers' work,
but . . Teamsters'," unless "a tractor was situated
underneath the trailer"; and members of the crew insisting
that the work was theirs. During the course of the
argument, Richardson told the employees, in Reddington's
presence, that if they continued with the work, "there
would be a picket [sic] thrown around the place within a
half-hour," and he gestured to the drivers of passing
trucks on the street to halt because "we may need you for
a picket line." (It does not appear whether any stopped.)
Reddington intervened in the argument , asking
Richardson whether "this wasn't a problem with West,"
and Richardson agreed, but said that "this is the only way
West understands, is to come out here and make sure that
they can't deliver any panels." Richardson told
Reddington that there were to be "[n]o more panels in the
air" (in other words, to discontinue the unloading work in
progress), and that if that were not done, "there will be
serious problems." This, I find in the context of
Richardson's remarks as a whole, amounted to a threat to
picket the construction site. At Reddington's direction, the
work of unloading the trailer was suspended for a period
of about two hours, the remainder of the workday."
Richardson ' s remarks to the Berman crew admonishing
them to discontinue the unloading work, and threatening
to have the construction site picketed, constituted
inducement and encouragement of a work stoppage by the
employees, within the purview of Section 8(b)(4)(i)(B),
"Findings as to Richardson' s remarks at the site are based on
Reddington 's testimony , which is corroborated in material respects by
Rourke who testified that he "think(s) during the heat of the argument
there was a mention of a possible picket line being put up." Rourke does
not say who made the "mention ," and his failure to do so and choice of
words to refer to the remarks about picketing suggest that he is not
entirely candid about the matter , but, in any case , he corroborates
Reddington in substantial measure, and I have no doubt that it was
Richardson who made the "mention " It is evident from Richardson's
account that he and the ironworkers had a "heated discussion ," stemming
from his objection , on "jurisdictional" grounds , to their performance of the
unloading work, but he claims that Garcia appeared at the scene , and that
what he said on the subject of picketing were remarks , addressed to
Garcia, who had been summoned to the project , to the effect that the
Union would "tie you (West) up" because that could be done "legally"
under the contract with West . Garcia, it may be noted , arrived at the site
after the unloading work had been halted , or in other words, after
Richardson 's remarks to the employees and Reddington . If those remarks
were made , it matters not what subsequently passed between Richardson
and Garcia As regards Richardson 's behavior prior to Garcia's arrival, I
am persuaded of the credibility of Reddington 's account. For one thing,
the picketing threats imputed to Richardson are of a piece with those made
by his subordinates , Flannigan , Baker and Cardinale, to other "secondary"
employers . For another , Richardson 's testimony regarding the episode at
the Mutual Benefit Building has substantial shortcomings, as previously
stated . And, finally , his account of the Crocker Building episode suggests a
substantially infirm recollection of the occasion , since he refers to
Reddington as "a little Italian guy," although there is nothing about
Reddington , who is called "Scotty ," to warrant the description.
Richardson 's description suggests that he has confused Reddington with
another
even though their actual cessation of the work took place
at Reddington's direction." And clearly an ultimate object
of his admonition and threat to the employees, and of the
threat of "serious problems" expressed Reddington, was
to bring pressure to bear upon West to comply with the
Union's "jurisdictional" requirements. Thus I find that by
reason of Richardson's conduct in inducing and
encouraging Berman 's employees to cease performing
services, the Union violated Section 8(b)(4)(i)(B) of the
Act, and that as a result of Richardson's threats of
picketing and "serious problems," the Union violated
Section 8(b)(4)(ii)(B) of the statute.
There remains for dispostion allegations of misconduct
by the Union affecting Grassi-American. The enterprise
retains motor carriers, including West, on a contract
basis, to haul its products from its South San Francisco
premises to its customers such as Berman and Hellman at
construction sites where the products are to be used.
Grassi-American and West have done such business for
about 5 years.
Grassi-American's labor force, apart from clerical
personnel, numbers some 45 employees, all of them
unionized , but none represented by Local 85. The duties
of some of the employees include the loading of the
company's products on trucking equipment of the motor
carriers who haul for it. The equipment used by West to
haul Grassi-American's products consists of trailers drawn
by tractors, and the loading takes place in a yard at
Grassi-American' s premises.
On the morning of November 6, Grassi-American's
production manager, Robert Grassi, receiving information
that Local 85 intended to picket its premises, spoke to
Richardson by telephone and asked him "what this
dispute was all about." Richardson replied that West had
violated its contract with the Union, that he intended "to
stop them from what they have been doing," and that
Cardinale would shortly come to Grassi-American's plant
with picket signs.
Shortly after this conversation, Grassi, noticing Baker
outside the plant gate, asked him "what was going on,"
and Baker gave him much the same answer as
Richardson, stating , also, that he had been sent there by
Richardson "to instruct" the pickets when Cardinale
brought the signs.
Later that day, Garcia came to the premises , followed
about an hour later by Cardinale, and both men, in the
presence of Baker and Grassi, discussed "the issue"
outside the plant, Cardinale taking the position that the
West drivers who hauled Grassi-American's products
"should be ... from Local 85 and not 315," that West
was using Grassi-American's yard as a truck terminal,
and that this was a "violation."" Grassi, having other
matters that required his attention, left the group, and
Garcia and Cardinale continued their discussion.
Some two hours later, about 3:30 p.m., Richardson
appeared outside the plant while Garcia, Baker, and
""The words ' induce or encourage ' are broad enough to include in them
every form of influence and persuasion." International Brotherhood of
Electrical Workers v. N.L R.B , 341 U.S 694, 701-702 And an attempt to
"induce or encourage" need not succeed in order to fall within the
proscription of Section 8(b)(4XB ) United Brotherhood of Carpenters,
Local 1839 (Kroeter Construction Company), 160 NLRB 1, 6.
"What was allegedly "violated" by the use of Grassi-American 's yard as
a terminal , if so used, does not clearly appear . Perhaps Cardinale was
referring to a conception , expressed by Richardson in his testimony, that
Grassi-American 's work in loading West' s truck in the yard constituted a
breach by Grassi-American of "our contract," although Grassi-American
has no contract with the Union.
TEAMSTERS , LOCAL 85
Cardinale were there, and Grassi joined Garcia and the
Union's representatives, the group sitting in Cardinale's
car where a discussion ensued , principally between
Richardson and Garcia, centering about "the issue"
between the Union and West. During the course of
discussion, Richardson told Garcia that he would stop
West from using Grassi-American's yard as a terminal,
that he would place pickets outside the plant, and that if
necessary he would stop truck drivers for
Grassi-American's suppliers from making deliveries to
Grassi-American' s premises , and its employees from
passing through the picket line.
Operations at the Grassi-American plant usually start
at 4 a.m., and on the following day, between that hour
and about 6 a.m., Garcia personally dispatched some
West trucks, which had been loaded by Grassi-American
personnel, from Grassi-American's yard to their delivery
destinations. Later that morning , while Garcia, Grassi and
the latter's brother were engaged , at Grassi-American's
premises, in a discussion of the Union's position,
Richardson came there, and, in substance , alluding to
Garcia's activities earlier that morning , told Garcia, in the
presence of the Grassi brothers, that Garcia's conduct was
"typical" of his practices, that he was going to shut down
all of West's operations, and "any jobs" (construction
projects, as I infer) that "Garcia was working on"; and
that if Grassi-American loaded any West trailers in its
yard, he would shut down Grassi-American's operations,
picket its premises , and prevent Grassi-American's
employees and all others from entering the yard. The
Grassi brothers promised Richardson that they would not
load the vehicles, and Robert Grassi then sent the
company's loading crews home for the balance of the day.
No picketing of the premises took place.20
"Findings as to the course of events and discussions in and outside
Grassi-American 's premises are based on Robert Grassi 's testimony
Richardson does not deny having a telephone conversation with Grassi on
November 6, nor describe a visit by him to the Grassi - American premises
in the mid -afternoon of that date , nor allude to a conversation in a car
outside the premises that afternoon . What he claims for that date, in
substance, is that about 8 or 9 a .m. he "happened to be driving by" the
Grassi-American premises and saw about 14 or 15 "West trailers parked in
the yard with no power equipment" ; that he told Robert Grassi that he
was "going to tie up this equipment", and that "Grassi is in no way
involved "; that Garcia appeared at the plant ; and that in the course of the
discussion that followed he told Grassi that if Grassi -American continued
to load West 's equipment "without a teamster standing by" he would
"advertise out here that you (Grassi- American ) are breaking our contract "
(As indicated previously , the Union has no contract with
Grassi-American .) As for the following morning , Richardson quotes
himself in much the same vein, claiming that he told Grassi that he would
"advertise" by means of an " information line." I have credited Grassi's
account for a number of reasons . First , there are major informities in
Richardson ' s testimony on other subjects , as previously pointed out.
Second , the record reflects a pattern of similar picketing threats made by
Richardson and other agents of the Union to other "secondary"
employers , and this contributes corroborative support to Grassi's
testimony . Third, I have a substantial doubt , to say the least, that
Richardson was merely "passing by" the Grassi-American premises on
November 6. He does not say that Cardinale was "passing by" with him,
although subsequently alluding to Cardinale 's presence during the
discussion at the plant on that date . Cardinale first stated that he came to
the premises alone , but then corrected himself to say that he went "down
there" with Richardson . This conveys a vague intimation that their
presence in the plant vicinity was not happenstance , as Richardson would
have one believe . In contrast, Grassi gives a circumstantially detailed
version of events leading up to separate appearances by Richardson and
Cardinale that day. It is noteworthy , in that regard , that Grassi 's account
of his conversation with Baker on November 6 before the arrival of either
Richardson or Cardinale is undisputed . Baker's disclosure to Grassi that he
had been directed to come to the premises by Richardson " to instruct"
717
The fact that the Union had a contract with West and a
grievance against that firm endowed the Union with no
right to make threats that Grassi-American's premises
would be picketed, its operations shut down, and its
employees and others with whom it did business prevented
from entering its premises, unless Grassi-American
discontinued loading West's trucks Grassi-American was
a "neutral" in the dispute between the Union and West,
and an object of the threats, plainly, was to bring pressure
to bear upon Grassi-American to cease using West's
trucks, and thus implement the Union's position in the
dispute. It matters not that some of the threats against
Grassi-American were made in the course of remarks
addressed to Garcia, for these were made in Grassi's
presence, and would naturally tend to have a coercive
impact on Grassi and Grassi-American. Thus I find that
the Union violated Section 8(b)(4)(ii)(B) of the Act as a
result of Richardson's statements on November 6, in
Grassi's presence, that he would place pickets outside the
plant, and if necessary, would stop truck drivers from
making deliveries of supplies to the plant, and
Grassi-American's employees from passing through the
picket line. Similarly, I find that the Union violated
Section 8(b)(4)(ii)(B) in consequence of Richardson's
remarks on November 7 that if Grassi-American loaded
any West trailers in its yard, he would picket the
premises, shut down Grassi-American's operations, and
prevent its employees and all others from entering the
yard.21
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Union, set forth in
section III, above, occurring in connection with the
operations of Berman, West, Hellman, Grassi-American,
Victory, and Martinoni, described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Union has engaged
in unfair labor practices in violation of Sections 8(b)(1)(A)
and 8 (b)(4)(B) of the Act, I shall recommend that it cease
and desist from such practices, and take certain
affirmative actions designed to effectuate the policies of
the Act.
The General Counsel requests "a broad remedial order
forbidding Respondent to engage in secondary activity
pickets upon Cardinale 's arrival with the signs suggests that the subsequent
appearance of Richardson and Cardinale was not a mere happenstance
result of "driving by" The details given by Grassi have the ring of truth,
and I have made corresponding findings
"1 find no materiality in evidence adduced by the Respondent to the
effect that it filed a "grievance" against West under their contract,
resulting in a determination in favor of the Union , and a "Dispute
Settlement Agreement" (Resp Exh. 4) between them governing the use of
members of Local 85 in prescribed work by West; that West subsequently
sought leave of the Regional Director to withdraw its charge in this
proceeding , and that the Regional Director declined to approve such
withdrawal . The Respondent fails to explain how all this can affect the
right of Grassi-American , Berman and Hellman to conduct their business
operations free of the threats and disruption of the Union's agents reflected
in the record As in the Victory case, I find no merit in the Respondent's
claim that the Regional Director abused his discretion in declining to
approve West's request for withdrawal of its charge
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involving not only the employers herein , but also any
other primary or secondary employers or their
employees ." I find ample justification for such a request.
The Union' s "secondary" activities are rooted in
policies which go much beyond the employers involved
here , and their employees , extending , as the repeated
expressions of such policies in the record attest, to all
employers who have occasion to employ individuals,
within the area the Union describes as its "jurisdiction",
in functions which the Union insists , under its policies,
must be performed only under union membership
conditions it prescribes . The point is not that such
expressions to employers are of themselves unlawful, but
that agents of the Union , as the evidence establishes, have
evinced a disposition to enforce its "jurisdictional"
directives with unlawful pressures against "secondary"
employers , and disruption of the work of their employees.
Because of the scope of these directives , and of the
misconduct aimed at their enforcement , it is reasonable to
anticipate that the Union, unless appropriately restrained,
will engage in similar misconduct directed against any
"secondary" employers who do not conform to its
"jurisdictional" requirements."
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding , I, make the
following conclusions of law:
1. Berman , West , Hellman , Grassi-American, and
Victory have at all times material here employed
individuals , and respectively are, and have been at all such
times , persons and employers engaged in commerce, and
in an industry affecting commerce , within the meaning of
the Act.
2. The Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By restraining and coercing employees in the exercise
of rights guaranteed them by Section 7 of the Act, as
found above , the Union has engaged in unfair labor
practices within the meaning of Section 8 (b)(I)(A) of the
Act.
4. By inducing and encouraging employees of Berman
and Martinoni to cease work for an object proscribed by
Section 8 (b)(4)(B), as found above, the Union has engaged
in unfair labor practices within the meaning of Section
8(b)(4)(i)(B) of the Act.
5. By threatening Berman, Hellman , Martinoni, and
Grassi-American for such an object, as found above, the
Union has engaged in unfair labor practices within the
meaning of Section 8 (b)(4)(ii)(B) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Sections 2(6) and 2(7) of the Act.
all
note that in a recent case, Teamsters . Local 85 (California Trucking
Association ). Case 20-CC-845, now before the Board , Trial Examiner
Herman Corenman found that Local 85 had engaged in conduct violative
of Section 8(bX4Xi) and (ii)(B ), and recommended an order which is
narrower than that recommended here . The misconduct found in this
proceeding is substantially more extensive and flagrant than that involved
in the cited case , and the recommendations here rest on the particular facts
of this case.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this
proceeding, I recommend that Teamsters, Chauffeurs,
Warehousemen and Helpers, Local 85, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , its officers , agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) In the presence of any employee, threatening or
assaulting any employer, or employee or agent of such
employer, in order to persuade or induce such employer to
adopt or conform to policies or requirements of the Union
pertaining to membership in the organization as a term or
condition of work or employment.
(b) In any like or related manner restraining or
coercing any employees of Martinoni, or of any other
employer , in the exercise of rights guaranteed employees
by Section 7 of the said Act.
(c) Engaging in, or inducing or encouraging any
individual employed by Berman, Martinoni, or any other
personi , engaged in interstate commerce , or in an industry
affecting such commerce , to engage in a strike or a refusal
inr,the course of such individual ' s employment to use,
manufacture , process , transport or otherwise handle or
„(work on any goods, articles , materials , or commodities, or
to perform any services, where an object thereof is to
force or require Berman , Martinoni , or any other person
to cease doing business with Victory or West or any other
person; provided, however, that nothing herein shall be
construed to forbid the said Union to engage in an
otherwise lawful strike, or in any, lawful picketing or other
lawful activity in support of such a-stYike.
(d) Threatening , coercing ,: or restraining Berman,
Hellman, Martinoni , Grassi- American, or any other
person engaged in interstate commerce or in an industry
affecting such commerce, for such an object; provided,
however, that nothing herein shall be construed to forbid
the said Union to engage in an otherwise lawful strike, or
in any lawful picketing or other lawful activity in support
of such a strike.
2. Take the following affirmative actions which, I find,
will effectuate the policies of the Act:
(a) Post in conspicuous places at its principal office and
usual membership meeting place copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 20 of
the National Labor Relations Board, after being duly
signed by a duly authorized representative of the Union,
shall be posted by the said Union immediately upon
receipt of such copies, and be maintained by it for at least
60 consecutive days thereafter in conspicuous places,
including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by the
said Union to insure that said copies 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 office of the said Region in San
Francisco, California, after such notices have been signed
"In the event that this Recommended Order is adopted by the National
Labor Relations Board , the words "a Decision and Order" shall be
substituted for the words "the Recommended Order of a Trial Examiner"
in the notice to be posted as required herein . 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
said notice.
TEAMSTERS , LOCAL 85 719
as provided above, for posting by Berman, West,
Hellman, Grassi-American, and Victory, if they so agree,
at places where they respectively customarily post notices
to individuals in their employ.
(c) Notify the said Regional Director, in writing, within
20 days from the date of receipt of a copy of this decision
what steps Respondent has taken to comply therewith."
"In the event that this Recommended Order is adopted by the Board,
paragraph 2(c) of such Recommended Order 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
therewith."
APPENDIX
TO ALL EMPLOYEES OF BERMAN -HELMAN , INC., WEST
TRANSPORTATION, INC., HELLMAN CRANE AND
RIGGING, INC., GRASSI-AMERICAN COMPANY, VICTORY
TRANSPORTATION SERVICE, INC., AND E . MARTINONI
Co.
TO ALL MEMBERS OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS , LOCAL 85,
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
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT engage in , or induce or encourage any
individual employed by Berman-Helman , Inc., or E.
Martinoni Co ., or any other person engaged in
interstate commerce or in an industry affecting such
commerce, to engage in a strike or a refusal in the
course of such individual ' s employment to use,
manufacture , process , transport , or otherwise handle or
work on any goods , articles , materials or commodities,
or to perform any services, where an object thereof is to
force or require Berman - Helman , Inc., E. Martinoni
Co. or any other person to cease doing business with
Victory Transportation Service, Inc. or West
Transportation, Inc., or any other person.
WE WILL NOT threaten, coerce or restrain
Berman-Heiman, Inc., Hellman Crane and Rigging,
Inc., E. Martinoni Co., Grassi-American Company, or
any other person engaged in interstate commerce or in
an industry affecting such commerce, for such an
object.
WE WILL NOT, in the presence of any employee,
threaten or assault any employer, or employee or agent
of such employer, in order to persuade or induce such
employer to adopt or conform to policies or
requirements of this Union pertaining to membership in
the organization as a term or condition of work or
employment.
WE WILL NOT in any like or related manner restrain
or coerce any employees of E. Martinoni Co., or of any
other employer, in the exercise of any rights guaranteed
employees by the said Act.
Nothing herein shall be construed to forbid us to
engage in an otherwise lawful strike, or in lawful picketing
or other lawful activity in support of such a strike.
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS , LOCAL 85,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
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, 13050 Federal
Building , 450 Golden Gate Avenue, Box 36047, San
Francisco, California, Telephone 556-0335.