Teamsters Local 456 (Peckham Materials)

National Labor Relations Board - Board Decisions

May 19, 1992

307 N.L.R.B. 612 (N.L.R.B. 1992)

612
307 NLRB No. 101
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Respondent has been changed to reflect the new
official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
No exceptions were filed to the judge’s findings that the Respond-
ent did not violate the Act by instructing and causing employees of
Peckham Materials Corp. to engage in a work stoppage with an ob-
ject of forcing Peckham to cease doing business with Riccardi
Brothers by threatening Peckham that the Respondent would cause
employees of Peckham to cease using or handling Peckham products
destined for Riccardi, by picketing at Peckham’s Portchester facility
with an object of forcing Peckham to cease doing business with
Riccardi, or by instructing Peckham’s employees to engage in a
work stoppage with an object of forcing Peckham to cease doing
business with Environmental Products and Services, Inc. (EPS).
We adopt the judge’s finding that the Respondent violated Sec.
8(b)(4)(ii)(B) of the Act when the Respondent’s president, Edward
Doyle, told Peckham Attorney Laurence Brown that the Respondent
would not allow EPS to operate its truck at Peckham’s facility un-
less it was driven by a member of the Respondent, and that unless
Peckham told EPS to put one of the Respondent’s members on the
truck, Doyle would shut Peckham down. In light of this finding, we
find it unnecessary to pass on the judge’s alternative finding that
even accepting Doyle’s uncredited version of his conversation with
Brown, Doyle’s remarks were still unlawful.
3 The judge’s Conclusions of Law state, inter alia, that the Re-
spondent violated Sec. 8(b)(4)(i) and (ii)(B) of the Act by inducing
and encouraging employees of Peckham to refuse to load blacktop
for J&B Construction Co. (J&B), with an object of forcing Peckham
to cease doing business with J&B. We shall amend the judge’s Con-
clusions of Law to state that the Respondent violated Sec.
8(b)(4)(i)(B) by engaging in this conduct.
4 In the circumstances of this case, where the Respondent’s unlaw-
ful conduct was directed at one neutral employer, Peckham, and in
view of the fact that the Respondent has been found to have engaged
in similar conduct against only one other neutral employer in an
conduct against only one other neutral employer in an incident oc-
curring 8 years prior to the Respondent’s unlawful conduct against
Peckham, we do not believe that the judge’s recommended Order,
prohibiting secondary activity against Peckham or any other em-
ployer, is warranted. We shall, however, prohibit such conduct
against Peckham, where an object is to force or require Peckham to
cease doing business with J&B, EPS, or any other person.
Local 456, International Brotherhood of Teamsters,
AFL–CIO1 and Peckham Materials Corp. Case
2–CC–2055
May 19, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 15, 1991, Administrative Law Judge
Steven B. Fish issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and the Charging Party each filed
an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order as
modified.4
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusion
of Law 4.
‘‘4. On or about June 5, the Respondent induced and
encouraged employees of Peckham to refuse to load
blacktop for J&B, with an object of forcing Peckham
to cease doing business with J&B, in violation of Sec-
tion 8(b)(4)(i)(B) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Local
456, International Brotherhood of Teamsters, AFL–
CIO, Portchester and Bedford Hills, New York, its of-
ficers, agents, and representatives, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Inducing or encouraging individuals employed
by Peckham Materials Corp., to engage in a strike or
refusal in the course of their employment to use, man-
ufacture, process, transport, load, unload, or otherwise
handle or work on any goods, articles, materials, or
commodities, or to perform any person services, where
an object thereof is to force or require Peckham Mate-
rials Corp. to cease doing business with J&B Construc-
tion Co., Environmental Products and Services, Inc., or
with any other person.’’
2. Substitute the following for paragraph 1(b).
‘‘(b) Threatening, coercing, or restraining Peckham
Materials Corp. where an object thereof is to force or
require Peckham Materials Corp. to cease doing busi-
ness with J&B Construction Co., Environmental Prod-
ucts and Services, Inc., or with any other person.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT induce or encourage individuals em-
ployed by Peckham Materials Corp. to engage in a
613TEAMSTERS LOCAL 456 (PECKHAM MATERIALS)
1 All dates hereinafter refer to 1990, unless otherwise indicated.
strike or refusal in the course of their employment to
use, manufacture, process, transport, load, unload, or
otherwise handle or work on any goods, articles, mate-
rials, or commodities, or to perform any services,
where an object thereof is to force or require Peckham
Materials Corp. to cease doing business with J&B
Construction Co., Environmental Products and Serv-
ices, Inc., or with any other person.
WE WILL NOT threaten, coerce, or restrain Peckham
Materials Corp. where an object thereof is to force or
require Peckham Materials Corp. to cease doing busi-
ness with J&B Construction Co., Environmental Prod-
ucts and Services, Inc., or with any other person.
LOCAL 456, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, AFL–CIO
Laura A. Sacks, Esq. and David E. Leach III, Esq., for the
General Counsel.
Wendell Shepherd, Esq. (Roy Barnes, P.C.), of New York,
New York, for the Respondent.
Laurence P. Brown, Esq. (Brown, Kreinik & Aaron), of New
York, New York, for the Charging Party
DECISION
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by Peckham Materials Corporation (Peckham)
on November 28, 1990,1 the Region issued a complaint and
an amended complaint on December 17, 1990, and January
31, 1991, respectively, alleging that Local 456, International
Brotherhood of Teamsters, AFL–CIO (Respondent), has vio-
lated Section 8(b)(4)(i) and (ii)(B) of the Act, by in sub-
stance inducing and encouraging Peckham’s employees to
engage in a work stoppage, engaging in picketing at
Peckham’s facility, and threatening, coercing, and restraining
Peckham, with an object of forcing and requiring Peckham
to cease doing business with J&B Construction Co., Riccardi
Brothers, and Environmental Products and Services, Inc.
(J&B, Riccardi, and EPS), respectively.
The trial with respect to the allegations in the complaints
was heard before me in New York, New York, on February
27 and 28, 1991. Briefs have been received from all parties
and have been carefully considered. Based on the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Peckham is a New York corporation engaged in the manu-
facture and nonretail sale of asphalt paving and related prod-
ucts at its facilities located in Portchester and Bedford Hills,
New York. Annually, Peckham purchases and receives at its
Portchester and Bedford Hills facilities goods and materials
valued in excess of $50,000 directly from points outside the
State of New York.
It is admitted and I so find that Peckham is now, and has
been at all times material, is an employer and person en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
It is also admitted and I so find that Respondent is a labor
organization within the meaning of Section 2(5) of the Act.
III. FACTS
A. Background
Peckham owns and operates two plants where it manufac-
tures and sells blacktop, located in Portchester and Bedford
Hills, New York. It employs approximately six employees at
each of these plants, with three employees at each site, in
various job classifications, being represented by and mem-
bers of Respondent.
J&B and Riccardi are both customers of Peckham, who
purchase blackstop from Peckham at these facilities. The em-
ployees of J&B and Riccardi are not represented by Re-
spondent, although Riccardi is a signatory to a collective-bar-
gaining agreement with Local 191 of the Teamsters.
EPS is a corporation engaged in business of cleaning up
hazardous waste. It was hired to perform cleanup and re-
moval of two excavated storage tanks for Peckham at
Peckham’s Bedford Hills plant.
EPS which is located in Newburgh, New York, also does
not have a collective-bargaining agreement with Respondent.
B. The J&B Incident
On June 4, John Foglia, president of J&B, ordered 2000
tons of blacktop from Peckham to be picked up at the Bed-
ford Hills plant over a 2-day period, June 5 and 6. Pursuant
thereto, J&B leased 9–10 trucks, which were unmarked, and
sent them to Peckham the morning of June 5. The first load
of blacktop for all of these trucks was loaded by Peckham’s
employees, commencing at 6:30 a.m., without incident. The
trucks were scheduled to return later in the morning to pick
up a second load.
Shortly after the J&B trucks left, Respondent’s business
agent Richard Jedlicka arrived at the facility and went di-
rectly into the control room to speak with Raymond Valen-
tine, Respondent’s shop steward. After spending a few min-
utes with Valentine, Jedlicka left the premises without speak-
ing to any management representatives.
However, Gary Metcalf, Peckham’s assistant vice presi-
dent, noticing Jedlicka’s actions, and suspecting that there
may be a problem, approached Valentine and asked what
was going on? Valentine responded, that Jedlicka had
stopped by to find out if J&B Excavating was pulling
through on the plant and instructed him not to load J&B Ex-
cavating. Metcalf asked Valentine why Peckham could not
load J&B? Valentine replied simply that ‘‘Richie said we
can’t haul. We cannot load their trucks.’’
James Lyle, Peckham’s plant manager, had a similar con-
versation with Valentine in the early morning, after Jedlicka
had left. Valentine told Lyle that ‘‘Richie said that they
could not load J&B trucks.’’
Metcalf thereafter telephoned Respondent and spoke to
Jedlicka. Jedlicka explained to Metcalf that J&B would not
be loaded, because J&B was a nonunion contractor and was
doing a large job. Thus, unless he became a union contractor,
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his trucks would not be loaded. Metcalf asked if J&B was
aware of the situation. Jedlicka replied that J&B will find
out, because they are not going to get loaded.
Later on in the morning, pickets appeared at the jobsite
with signs stating that J&B does not have a contract with Re-
spondent. At this time, no J&B trucks were present, as they
had not as yet returned to pick up the next load. Shortly
thereafter, Jedlicka drove up to Peckham’s driveway. Metcalf
in the presence of Lyle approached Jedlicka, and asked why
Respondent had not spoken to him regarding this job action.
Jedlicka responded that he had tried to reach someone at
Peckham but was not successful. Metcalf asked Jedlicka if
something could be worked out for that day, and take care
of the problem later. He reminded Jedlicka that this was a
pretty good size job. Jedlicka answered that it is a large scale
job, and therefore J&B will become a union contractor.
Metcalf then indicated to Jedlicka that Respondent’s ac-
tions were only hurting Peckham, because J&B can go some-
where else to purchase the blackstop. Jedlicka insisted that
‘‘J&B is going to become a Union contractor or he is not
going to get loaded.’’ Metcalf then threatened to load J&B
himself. Jedlicka’s response to this comment was, ‘‘If you
load him, I’ll shut you down.’’
Metcalf at that point drove to the Pound Ridge jobsite to
speak with Foglia. While Metcalf was on route to Pound
Ridge, J&B’s trucks arrived for the second load. Valentine
refused to load the trucks, so Lyle instructed the truckdrivers
to park the truck on the side, while Valentine and the other
employees continued to work and service other customers,
although the picket line was still up.
By the time Metcalf arrived at Pound Ridge, Foglia had
already been informed that his trucks were not being loaded.
Metcalf informed Foglia that Respondent was picketing at
the plant and the men had been instructed by Respondent not
to load his trucks. After some further discussion, Foglia
asked Metcalf to call the plant and instruct his trucks to go
to O&G Industries in Stamford, Connecticut, to pick up the
blacktop. Metcalf did so, and suggested that Foglia call
Jedlicka to try to resolve the problem. Foglia called Jedlicka
on the phone later that afternoon. Jedlicka told Foglia that,
‘‘you’re got to sign this contract, and we’ll load you at the
plant.’’ Foglia responded that he was a small company, this
was his first big job, and he could not afford to sign a con-
tract. Jedlicka reiterated that Foglia had to sign the contract
if he wanted to buy blacktop at Peckham.
The next day, June 6, Foglia sent his trucks directly to
Stamford, and did not attempt to buy from Peckham. No
pickets appeared at Peckham, but Jedlicka telephoned and
spoke to Valentine. Metcalf then asked Valentine if there
was a problem? Valentine replied that there is no problem,
but Jedlicka wanted to know if J&B was in. Valentine added
that he told Jedlicka that J&B had not been in, and had gone
to Stamford to pick up their blacktop. Later on that day,
Metcalf again went to see Foglia at the jobsite in Pound
Ridge. Metcalf told Foglia that Peckham wanted to sell mate-
rial to him, and urged Foglia to call Respondent and try to
work something out. Foglia agreed to call Jedlicka from
Metcalf’s car phone. Foglia did so and asked Jedlicka if he
could send his trucks back to Peckham to purchase materials.
Jedlicka responded that Foglia would have to sign a contract
with Respondent if he wanted pick up at Peckham. Foglia re-
plied that he (Jedlicka) was being unfair. Jedlicka answered
that Foglia had a big job and he must use Respondent’s driv-
ers on such a job. Jedlicka did not during either of his two
conversations with Foglia, ask Foglia what wages or benefits
he paid to his employees.
Later on that day, Laurence Brown, Peckham’s attorney
became involved in the dispute. He had conversations with
John Peckham and Foglia during which Brown learned about
the problem, and Foglia had stated that J&B would be will-
ing to use Respondent’s trucks and employees for big jobs
like the current one, but he could not afford to sign a con-
tract with Respondent.
Brown then called Edward Doyle, Respondent’s president
and business manager. Doyle informed Brown that J&B had
gotten a bid for a job in Pound Ridge which was in Re-
spondent’s territory and J&B had to sign a contract with Re-
spondent in order to get that work. Doyle added that he
would not allow J&B to be loaded at Peckham unless J&B
signed a contract with Respondent. Brown informed Doyle
that J&B was a small contractor with one truck, that does
mainly driveways, and simply could not afford a union con-
tract. However, Brown explained that J&B had offered to use
Respondent’s trucks on any future large job that J&B might
obtain. Doyle agreed to the proposal.
Shortly thereafter, Metcalf was instructed by John
Peckham to inform Foglia that he could come back the next
day and get loaded at Peckham. J&B’s trucks did return the
next day and had no problem getting loaded.
There have been no further instances of picketing by Re-
spondent with respect to J&B, and J&B has continued to
purchase blackstop from Peckham on an as needed basis, as
J&B had done before the incident in question.
The above description of events and conversations is based
on a compilation of the credited testimony of Metcalf, Lyle,
Foglia, Brown, Jedlicka, Doyle, and Valentine. In most in-
stances of conflict between the testimony of the General
Counsel’s witnesses and that of Respondent, I have credited
the former’s versions of events and discussions. In general,
I found the mutually corroborative and consistent testimony
of Foglia, Metcalf, Lyle, and Brown to be more believable
and reliable than that of Valentine, Jedlicka, and Doyle.
Thus, while Jedlicka and Valentine concede that they did
have a discussion about J&B on June 5, they contend that
the conversation occurred while the J&B trucks were first
being unloaded, and that Valentine in response to an inquiry
from Jedlickia about J&B, told Jedlicka that J&B was being
unloaded at that time. They both further testified that
Jedlicka did not say nor did Valentine ask what action the
Union was going to take, nor did he give Jedlicka any in-
structions as to what to do about loading J&B. I find this tes-
timony to be implausible and not credible. I note signifi-
cantly that Doyle does not corroborate Jedlicka as to the tim-
ing of Respondent’s awareness of J&B’s appearance and its
picketing. Thus, contrary to Jedlicka’s testimony, Doyle as-
serts that Jedlicka told him that the first round of J&B trucks
had already been loaded, and at that time he instructed
Jedlicka to put up a picket line. Jedlicka and Valentine how-
ever insist that the pickets were put up while the first load
was being unloaded, and that when Valentine was told by a
driver of the picketing against J&B, he without seeing the
pickets or the signs, refused to continue loading.
In my view, Doyle’s testimony on this issue, coupled with
the consistent and corroborative testimony of Foglia, Metcalf,
615TEAMSTERS LOCAL 456 (PECKHAM MATERIALS)
and Lyle establish as I have found above, that the picketing
began after the J&B trucks had left after having completed
the first load. I also find that the testimony of Valentine and
Jedlicka that they did not make the remarks that I have re-
lated above that they made to Foglia, Lyle, and Metcalf con-
cerning the refusal of employees of Peckham to load J&B,
is seriously undermined by their inaccurate testimony as to
the timing of the picketing and the refusal to load. I also find
it highly unlikely, that as insisted upon by Valentine, and
Jedlicka, that they had no disucssion as to what action the
Union was going to take, or about the picketing that was or-
dered, or about what Respondent wanted employees to do.
While, as I have noted in most instances, I have credited
the General Counsel’s witnesses as to their versions of dis-
puted conversations, I have credited Doyle over Brown with
respect to one area of conflict. Thus, Brown testified that
even after he related to Doyle that J&B had agreed to use
Respondent’s trucks on all future large jobs, Doyle continued
to insist that J&B must sign a contract with Respondent, but
Respondent would agree not to enforce the contract against
J&B’s small jobs. I have not credited Brown as to this por-
tion of his testimony, since Respondent immediately after the
conversation ordered a cessation of any picketing and John
Peckham instructed Metcalf to tell Foglia that he could re-
sume picking up at Peckham. This suggests as testified to by
Doyle, that he agreed to Brown’s proposal that J&B’s agree-
ment to use Respondent’s trucks on future large jobs was
sufficient to resolve the instant dispute. As related above, I
have nonetheless credited Brown that Doyle did tell him dur-
ing their conversation and prior to Brown’s offer of settle-
ment, that he (Doyle) would not allow J&B to load at
Peckham unless J&B signed a contract. I noted that Doyle’s
remark in this regard was similar to statements made by
Jedlicka and Valentine to Metcalf, Lyle, and Foglia.
C. The Riccardi Incident
Riccardi is a construction firm which has been a customer
of Peckham for many years, and had no difficulty with
pickups of blacktop until July 1990. Riccardi’s employees
are represented by Local 191 of the Teamsters.
On July 17, Joseph Riccardi, Riccardi’s president received
a phone call from Bernard Doyle. Doyle, after confirming the
fact that Riccardi had received a patching job in Portchester,
demanded that Riccardi use a Local 456 driver for the job.
Riccardi refused to do so, and after some words back and
forth, Doyle concluded the conversation by stating, ‘‘We’ll
see about that.’’
After that conversation, Bernard Doyle told his brother
Eddie that he (Bernard) had found out that Riccardi had re-
ceived a contract for a job in Portchester usually performed
by a contractor with whom Respondent has a contract. Ber-
nard told Eddie about his conversation with Joseph Riccardi,
and that Riccardi would not agree to put on a teamster on
his truck. Eddie instructed Bernard to picket Riccardi at the
Portchester jobsite and to follow the truck wherever it goes.
Bernard arranged for three or four pickets, including Ken
Madeiras, and instructed them to picket Riccardi at
Portchester and to follow the truck and picket it wherever it
stopped.
The next morning, Madeiras and the other pickets arrived
at the Main Street jobsite in Portchester with signs. However,
they did not picket there, since the truck left the jobsite. The
pickets followed the truck to Peckham’s facility in
Portchester. When the trucks arrived at Peckham, the pickets
got out of their cars, with signs reading ‘‘Riccardi Bros.
Local 456 no contract.’’ The pickets walked up and down at
the entrance gate of the facility with the above signs.
Meanwhile, Riccardi’s truck pulled up to make a pickup
of blacktop. The truckdriver placed the order at the dis-
patching office, and got in line behind other trucks waiting
to be loaded. When the Riccardi’s truck pulled underneath
the plant, ready to be loaded, employee Robert Speno the
plant operator, who testified credibly that he had seen the
picket signs from the batching room where he was stationed,
refused to load the truck. Rick Brown, Peckham’s plant man-
ager called Speno over the intercom and asked if there was
a problem. Speno replied there was no problem, but he was
not going to load the Riccardi truck. Speno told Brown he
had seen picket signs with Riccardi’s name on it, and he
would not load the truck. Brown said nothing further, and in-
structed the driver to pull his truck out of line, so that
Peckham’s employees could continue to service other cus-
tomers.
The employees continued to load other trucks, and
Riccardi’s truck remained over on the side. Later on that
morning, Joseph Riccardi received a call from his brother
who told him there was a picket line at Peckham and his
truck was not being loaded. Riccardi then went to his office
and received a call from his driver, Frank told Riccardi that
there ‘‘were pickets out here and they won’t load me.’’
Riccardi told Frank that he would be right there.
Riccardi then proceeded to drive to the plant and spoke to
Brown and Jack Reynaud, another official of Peckham. They
told Riccardi, ‘‘we can’t load you.’’ Riccardi then instructed
his driver to get in line, pull his truck under, turn off the
keys, and stay there until loaded. Thus, if the Riccardi truck
was not loaded, other trucks in line behind would also not
be serviced. Subsequently, a Peckham official asked Riccardi
to pull his truck out of the way, but Riccardi refused stating
that ‘‘nobody’s getting loaded in here unless I get loaded.’’
At that point, Brown and Reynaud went to the batching
room and gave a direct order to Speno and to Bob Grant,
Respondent’s shop steward, to load Riccardi’s truck. They
refused. After another direction and a refusal, Brown and
Reynaud told Grant and Speno they were suspended for 3
days and to get off the property. Speno and Grant went out-
side the gate and stood by, speaking to the pickets.
Riccardi’s truck was loaded by Brown and left the prem-
ises. When the truck left, some of the pickets left and fol-
lowed the truck back to the jobsite at Portchester. However,
it does not appear that they engaged in any picketing at the
Portchester site.
Meanwhile, some of the pickets remained at the gate at
Peckham for about 15 minutes after Riccardi’s truck left, and
were speaking with Grant and Speno. However, the pickets
had at that point taken off their picket signs. At that time,
Brown instructed Speno and Grant to come back to work,
which they did. There were no further incidents of picketing
at Peckham with regard to Riccardi.
Speno and Grant both insist that they had no conversations
with any officials of Respondent or among themselves about
the picket line or about whether they should refuse to load
Riccardi’s truck. They both credibly testified that they re-
fused to load the truck, because they saw the picket line
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 After the J&B incident previously discussed, Doyle promised to
call Brown whenever the Respondent intended to picket Peckham.
which referred to Riccardi. While they both admitted that
they had loaded Riccardi before and had loaded other non-
union companies, the difference in this case was only the
picket line and an individual decision on their part not to
load because of the picket signs.
Additionally on the same day of the picketing, Eddie
Doyle received a call from Laurence Brown. Brown com-
plained to Doyle that there were pickets at Peckham’s jobsite
regarding Riccardi, and that Doyle had not called Brown as
promised.2 Doyle responded that he did not even know that
there were pickets at Peckham. Doyle explained that he had
instructed his men to follow Riccardi’s truck and to picket
wherever the truck stopped. However, since Doyle did not
know where the truck would be going, and there are 10
blacktop plants in the county, he was not aware that
Peckham would be picketed.
The above description of the events of July 17 and 18 is
based on a compilation of the credited testimony of Grant,
Speno, Doyle, Madeiras, Riccardi, Rick, and Laurence
Brown.
In this instance, I found the mutually corroborative and
consistent testimony of Respondent’s witnesses to be more
persuasive, and in most areas of dispute have credited their
testimony over that of the General Counsel’s witnesses
where their testimony conflicts. Most significantly, I do not
credit the testimony of Rick Brown that Grant told him, in
the presence of Speno, that the hall directed him not to load
Riccardi. I note in this regard the absence of any evidence
that Respondent’s officials had any communication with
Grant prior to the picketing and the subsequent refusal to
load. Since there is no evidence that Respondent knew that
Riccardi was coming to pick up blacktop at Peckham, it is
not likely that it could have notified the employees not to
load prior to Riccardi’s appearance. This fact lends credence
to my conclusion that Speno and Grant were testifying truth-
fully when they denied making any statements to Brown that
the hall had instructed them not to load.
D. The EPS Incident
On November 26, EPS began working for Peckham at the
Bedford Hills facility, performing hazardous waste cleanup.
On November 27, Valentine approached Lisa Hauer, EPS’s
project coordinator, and told her that his ‘‘boss’’ would like
to speak with her on the telephone. Hauer agreed and walked
to Peckham’s trailer, where she was handed the phone by
Valentine who again repeated ‘‘it’s my boss that wants to
speak with you.’’ Jedlicka was on the line, and after identi-
fying himself, told Hauer that he wanted EPS to use a Local
456 driver on EPS’s truck. Hauer replied that she was not
in a position to hire a driver from an outside source, particu-
larly since EPS’s drivers must be trained by OSHA. Jedlicka
responded that if EPS did not use one of Respondent’s driv-
ers, he would have not choice but to ‘‘shut the operation
down.’’ Hauer told Jedlicka to ‘‘do what you have to do,’’
and hung up the phone.
Later on that same day, Metcalf received a call from
Peckham’s receptionist who informed him that Ray Valentine
has a problem with EPS. Metcalf asked to speak with Valen-
tine, and inquired what the problem was with EPS. Valentine
informed Metcalf that EPS had brought in a low bed trailer
and a dump truck. Valentine added that he had asked the
driver of the truck to produce a union card and found out
EPS was nonunion. Metcalf told Valentine that EPS is an
outside contractor performing environmental cleanup and had
nothing to do with the operations of the plant. Valentine re-
sponded that he had called ‘‘the hall,’’ and was told that EPS
had to have a Local 456 driver to either deliver or take mate-
rial out of the site.
Also on November 27, Laurence Brown received a call
from Edward Doyle. Doyle informed Brown that Peckham
was using a company, EPS to remove hazardous waste mate-
rials, and EPS would not use a Local 456 driver to haul the
material. Brown, after talking with John Peckham, told Doyle
that Peckham had hired EPS an outside contractor as the
lowest bidder on a contract ordered by the Department of
Environmental Conservation. Doyle replied that he did not
care who Peckham used, there was no way that he was going
to allow materials to be hauled in and out of Peckham’s fa-
cility in Bedford, without a Local 456 driver on the truck.
Doyle added that unless Peckham tells EPS to do so, he was
going to shut the Bedford facility down. Brown answered
that if Doyle did that, Peckham would have no choice but
to go to the NLRB. Doyle concluded the conversation by
stating that ‘‘you do what you have to do, I’ll do what I
have to do.’’
That same day, Brown sent a letter to Doyle, dated No-
vember 27. The letter refers to previous disputes between
Respondent and Peckham (presumably, J&B and Riccardi)
wherein Respondent induced and encouraged Peckham em-
ployees to refuse to perform services for Peckham’s cus-
tomers, and that this action caused Peckham to lose money
and business. The letter continues, ‘‘today you have notified
me that you intend to direct Peckham’s employees at its Bed-
ford facility to stop work, effective tomorrow, because an
outside contractor . . . does not employ members of Local
456.’’
Brown concludes by viewing this as a violation of the Na-
tional Labor Relations Act, and threatens legal remedies if
Local 456 continues, but offers to meet to resolve the situa-
tion.
On or about November 27, EPS received by Fax a copy
of a Western Union telegram from Doyle. The telegram as-
serts that Local 456 has conducted an investigation of wages
and other economic benefits that EPS was paying, and have
determined that EPS is not paying the standard area wages
and benefits. The telegram ads that if EPS continues in not
meeting the area standards, Respondent will commence area
standards picketing for the purpose of advising the public of
the situation.
Notwithstanding this telegram, it is clear that Respondent
made no attempts to contact EPS to determine what wages
or benefits it paid to employees and in fact Doyle admitted
that Respondent made no attempt to do an area standards in-
vestigation of EPS.
The next day, November 28, Respondent placed a picket
line at the entrance to Peckham’s Bedford Hills facility, with
signs reading EPS has no contract with Local 456. Employ-
ees of Peckham upon seeing the picket line, refused to cross,
617TEAMSTERS LOCAL 456 (PECKHAM MATERIALS)
3 This also included, in addition to the Teamsters operating engi-
neers and electricians employed by Peckham.
and did not perform any work for Peckham3 on that day. Ad-
ditionally at least one customer of Peckham, Rossi, Inc., had
a truck come to the site to pick up blacktop, but the driver
refused to cross the line. Subsequently, Jedlicka received a
call from an official of Rossi who asked what the problem
was since his driver had refused to cross a picket line.
Jedlicka told him that Respondent was picketing because
EPS was a nonunion outfit working at the site. The conversa-
tion concluded.
EPS has not returned to the jobsite to complete its work
as of the time of the hearing. There has also been no further
picketing by Respondent at that location.
My findings concerning the events regarding Respondent’s
actions with respect to EPS, are once again based on a com-
pilation of the credited portions of the testimony of various
witnesses, in this case, Doyle, Laurence Brown, Metcalf,
Jedlicka, and Valentine. Although Doyle denies telling
Brown that Respondent would close the place down, as I
have found above, he does admit to telling Brown that Re-
spondent intended to put up a picket line at Peckham’s job-
site, because EPS had a nonunion truck on the job. Doyle
further admits that he told Brown that since there is only one
entrance to the site, if Respondent puts up a picket line there,
there would be a problem in that employees would not cross
the picket line and other companies attempting to come into
the site may not cross. Indeed, he also added that in Doyle’s
opinion 90 percent of the union people are not going to cross
the picket line.
I note that Brown’s testimony in this regard is corrobo-
rated by the testimony of Hauer, whom I found to a most
believable witness, as to what Jedlicka said to her about Re-
spondent’s intentions.
IV. ANALYSIS
A. The J&B Incident
I have found above that on June 5, Metalf, Peckham’s as-
sistant vice president had two conversations with Richard
Jedlicka, Respondent’s business agent, both before and after
the picketing at Peckham’s premises began. In both con-
versations, Jedlicka informed Metcalf that unless J&B be-
came a union contractor, J&B’s trucks would not be loaded
at Peckham’s facility. Edward Doyle, Respondent’s president
made a similar remark to Laurence Brown, Peckham’s attor-
ney on June 6, telling Brown that he would not allow J&B
to be loaded at Peckham unless J&B signed a contract with
Respondent.
These statements by Respondent’s agents constitute threats
to Peckham that it would cause Peckham’s employees to en-
gage in a work stoppage by refusing to load J&B’s trucks,
with an object of causing Peckham to cease doing business
with J&B, in violation of Section 8(b)(4)(ii)(B) of the Act.
Sheet Metal Workers Local 104 (Losli International), 297
NLRB 1078 (1990); Laborers Local 464 (Lycon Inc.), 304
NLRB 544 (1991), Longshoremen Local 13 (Egg City), 295
NLRB 704 (1989), Carpenters Local 316 (Thornhill Con-
struction Co.), 283 NLRB 81, 85 (1987).
Additionally, after Jedlicka’s second unlawful threat to
cause employees not to load J&B, Metcalf indicated that he
would load J&B himself. This prompted Jedlicka to threaten
that if Metcalf loaded J&B, ‘‘I’ll shut you down.’’ This re-
mark is another instance of an unlawful threat to Peckham
in further violation of Section 8(b)(4)(ii) and (B) of the Act.
Cf. Iron Workers Local 197 (Del Guidice Enterprises), 291
NLRB 1–2 (1988); Carpenters Local 102 (Mewiswinkel Inte-
riors), 260 NLRB 972 (1982).
I have also found that on June 5 after Jedlicka had a con-
versation with Valentine, Respondent’s shop steward, Valen-
tine told both Metcalf and Peckham’s plant manager James
Lyle, that Jedlicka had instructed him not to load J&B
trucks.
Shortly thereafter, when J&B’s trucks arrived to pick up
the second load, Valentine refused to load the truck, while
continuing to load other trucks and service other customers.
Respondent contends that this refusal to load was due sole-
ly to the presence of a lawful picket line that had been put
up by Respondent prior to the J&B’s trucks’ arrival. I do not
agree.
While there is no direct evidence that Jedlicka instructed
Valentine not to load J&B’s trucks, and in fact Jedlicka and
Valentine vigorously deny any such instructions, it is well
settled that it is permissible to rely on circumstantial evi-
dence to establish that a union is responsible for inducing
employees to engage in a work stoppage or refuse to process
or handle or work on any goods. Operating Engineers Local
12 (Associated Engineers), 270 NLRB 1172, 1175 (1984);
Newspaper & Mail Deliverers (Gannett Co.), 271 NLRB
601, 66 (1984); Cf. Teamsters Local 705 v. NLRB, 820 F.2d
449, 451–452 (D.C. Cir. 1987).
Here the circumstantial evidence is compelling that
Jedlicka, contrary to the testimony of Respondent’s wit-
nesses, did in fact instruct Valentine an employee of
Peckham and Respondent’s shop steward to refuse to load
J&B’s trucks. Thus, Valentine’s statements to Metcalf and
Lyle that Jedlicka so instructed him constitute admissions
against Respondent that Jedlicka made such statements to
Peckham’s employees. Moreover, the aforementioned unlaw-
ful threats made by Jedlicka and Doyle to representatives of
Peckham to the effect that Respondent would not allow J&B
to be loaded at Peckham unless it signed a contract with Re-
spondent, are further supportive of my conclusion that Re-
spondent did in fact instructed Peckham’s employees not to
load J&B’s trucks.
Such instructions by Respondent, to the employees of a
secondary employer, constitutes an inducement or encourage-
ment of an ‘‘individual employed by any person engaged in
commerce . . . to engage in, a strike or a refusal in the
course of his employment to . . . process transport or other-
wise handle or work on any goods,’’ in violation of Section
8(b)(4)(i)(B) of the Act. Egg City, supra; Thornhill Construc-
tion, supra at 84; Losli International, supra. I so find.
Turning to the picketing itself, the Board has recognized
that ascertaining a union’s motivation becomes difficult in
cases involving ‘‘ambulatory’’ or ‘‘common’’ situs situa-
tions, i.e., where the primary and secondary employers are
engaged in operations at the same location. Operating Engi-
neers Local 675 (Industrial Contracting Co.), 192 NLRB
1188, 1191 (1971). The Board has developed criteria in Sail-
ers Union (Moore Dry Dock), 92 NLRB 547, 549 (1950), to
help resolve the question of whether a union has dem-
onstrated the proscribed motive of enmeshing a neutral em-
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployer when it pickets at locations where both the primary
and secondary employer are present. Thus picketing will be
considered presumptively valid if; (a) the picketing is strictly
limited to times when the site of the dispute is located on
the secondary employer’s premises; (b) at the time of the
picketing, the primary employer is engaged in its normal
business operations at the common situs; (c) the picketing is
limited to places reasonably close to the location of the situs;
and (d) the picketing discloses clearly that the dispute is with
the primary employer. However, the Moore Dry Dock stand-
ards set forth above are, evidentiary rules only, and are not
a conclusive guide for determining the legality of common
situs picketing. Teamsters Local 506 (E. J. Dougherty Oil),
269 NLRB 170, 175 (1984). In ascertaining the Union’s ob-
ject, the Board looks at the totality of the Union’s conduct
in order to determine the Union’s true purpose. Industrial
Contracting, supra at 1192. Thus picketing although in com-
pliance with Moore Dry Dock, and for a lawful object, may
be unlawful if there is other evidence establishing that the
picketing also has an unlawful objective. Electrical Workers
IBEW Local 44 (Rollins Communications), 222 NLRB 99
(1976); Electrical Workers IBEW Local 11 (L. G. Electric
Contractors), 154 NLRB 766, 767–768 (1965).
In applying these principles to the case at hand, it is first
necessary to consider the Moore Dry Dock standards. The
General Counsel argues that Respondent’s picketing failed to
meet the Moore Dry Dock criteria of limiting the picketing
at Peckham to times when J&B was present at the facility.
The General Counsel contends that this factor is sufficient to
establish an unlawful objective of Respondent’s picketing.
Electrical Workers IBEW Local 595 (Hayward Electric Co.),
261 NLRB 707, 710 (1982).
I do not agree. Although I have found above that Re-
spondent picketed at Peckham during a brief but undeter-
mined period of time, when J&B’s trucks were not present,
I note that it was clear to all concerned that the J&B trucks
were expected to return later that day to pick up a second
load of blacktop. Thus, since J&B was scheduled to return,
and in fact did return to Peckham to attempt to pick up the
next load, J&B’s temporary absence at the time of the pick-
eting, does not establish that the picketing has violated the
Moore Dry Dock standards, nor that the picketing was un-
lawful. Industrial Contracting, supra at 1189–1190, Plumbers
Local 388 (Daily Heating), 280 NLRB 1260, 1272–1274
(1986).
However, as noted above, compliance with the Moore Dry
Dock standards, does not necessarily immunize the picketing,
and it is appropriate to evaluate Respondent’s other conduct
in order to determine whether an unlawful object existed.
Here, in my judgment, the record discloses ample evidence
which is more than sufficient to establish Respondent’s un-
lawful objective. Thus, Respondent’s previously described
unlawful actions of inducing employees to refuse to load
J&B trucks, and its unlawful threats to three different rep-
resentatives of Peckham to the effect that J&B will not be
loaded unless J&B signs a contract with Respondent, all pro-
vide substantial evidence that an object of the picketing was
to enmesh Peckham a neutral employer in its dispute with
J&B, by forcing Peckham to either cease doing business with
J&B or force J&B to sign a contract with Respondent. Rol-
lins Communications, supra at 101; L. G. Electric, supra; As-
sociated Engineers, supra at 1175; Thornhill Construction,
supra at 84; see also Electrical Workers IBEW Local 369
(Garst Receiver Construction Co.), 229 NLRB 68, 69 (1977).
It is also worthy of note in this regard that Respondent
never even contacted J&B prior to the picketing, and its only
conversations with J&B were initiated by representatives of
Peckham. Indeed both conversations between Foglia of J&B
and Jedlicka were made at the suggestion of Metcalf, one of
which took place from Metcalf’s car. Finally, the picketing
ended, only after Peckham’s officials had obtained an agree-
ment from J&B to use Respondent’s trucks on all future
large jobs, and communicated such a commitment to Re-
spondent. These circumstances further demonstrate the un-
lawful objective of Respondent of enmeshing Peckham in its
dispute with J&B. E. J. Dougherty, supra at 176.
Accordingly, based on the foregoing, I conclude that Re-
spondent’s picketing at Peckham’s premises on June 5, was
violative of Section 8(b)(4)(i) and (ii)(B) of the Act.
B. The Riccardi Incident
The complaint alleges that Respondent acting through its
Shop Steward Grant, instructed individuals employed by
Peckham to engage in a work stoppage and caused employ-
ees of Peckham to engage in a work stoppage at its Port
Chester facility, and that Grant also threatened Peckham by
informing Peckham that Respondent would cause employees
of Peckham to cease using or handling Peckham products
destined for Riccardi. Both of these allegations are premised
primarily on Brown’s testimony which I have not credited,
that Grant told him in the presence of Speno, that the hall
had directed Grant not to load Riccardi.
Having discredited Brown’s testimony in this regard, I find
the evidence insufficient to establish that Respondent has
violated the Act by these alleged acts or by its picketing on
July 19 at Peckham’s Portchester facility.
The General Counsel argues that it is not plausible to be-
lieve the testimony of Grant and Speno that they decided on
their own not to load Riccardi because of the picket line. She
asserts that if that had been the case, the employees would
have engaged in a complete work stoppage, and not contin-
ued as they did to service customers other than Riccardi.
Therefore, it is urged that I conclude that the employees
must have been acting under instructions from Respondent.
I find such speculation to be unwarranted, and not supported
by the record. I find it just as plausible as testified to by
Grant and Speno that when they saw the picket sign directed
at Riccardi, that they decided to honor the picket line only
with respect to loading Riccardi trucks. Indeed the very pur-
pose of the Moore Dry Dock requirement that the signs
clearly identify the primary employer with whom it has a
dispute, was inserted to permit an employee to make such a
choice, and to restrict their honoring the picket line to the
primary employer’s activities. This conduct, contrary to the
General Counsel’s assertions, evidences an intent not to un-
duly enmesh Peckham in Respondent’s dispute with Riccardi,
and cannot be construed as demonstrative on an unlawful ob-
jective.
Both the Charging Party and the General Counsel stress
Shop Steward Grant’s admission that he regularly attends
membership meetings, and that Respondent’s intentions to
picket are frequently discussed at such meetings. However,
this admission is not significant, since Grant credibly testi-
fied that the possibility of Riccardi being picketed was never
619TEAMSTERS LOCAL 456 (PECKHAM MATERIALS)
4 Although some of the pickets remained at Peckham for about 15
minutes after Riccardi’s truck left, they were not wearing picket
signs at the time. This brief period of time at Peckham even absent
Ricardi’s presence, by the pickets without signs, can hardly be con-
strued as violative of Moore Dry Dock, or demonstrative of an un-
lawful objective.
mentioned at any such meeting. More importantly, Respond-
ent did not know that Riccardi was scheduled to pick up at
Peckham, and therefore as I have concluded above, had no
opportunity to issue any directives to Grant or Peckham’s
employees not to load Riccardi’s trucks.
As for the picketing itself, there is no question and it is
not even disputed by the General Counsel that such picketing
complied with the Moore Dry Dock standards.4 I also con-
clude that the record is bereft of any other evidence that Re-
spondent’s conduct with respect to this incident harbored
secondary objectives. Therefore, I conclude that Respond-
ent’s picketing at Peckham at Portchester was not violative
of the Act, Operating Engineers Local 181 (Steel Fab), 292
NLRB 354, 357 (1989); Los Angeles Building Trades Coun-
cil (Sierra South Corp.), 215 NLRB 288, 291 (1974), and
that Respondent neither unlawfully induced Peckham’s em-
ployees, nor unlawfully threatened Peckham at that site, as
alleged in the complaint.
There, I recommend that the allegations of the complaint
with respect to these assertions be dismissed.
C. The EPS Incident
The complaint alleges that Respondent in furtherance of its
dispute with EPS, through its shop steward, Valentine in-
structed employees to engage in a work stoppage at
Peckham’s Bedford Hills facility. No evidence was presented
that Valentinue issued any instructions to employees of
Peckham, much less instructions to engage in a work stop-
page. Indeed, I note that the General Counsel makes no ref-
erence in her brief to such an allegation. Accordingly, I rec-
ommend dismissal of this paragraph of the complaint.
However, Doyle’s statements to Brown that Respondent
would not allow EPS to operate at Peckham’s facility unless
it had a 456 driver on the truck, and that unless Peckham
tells EPS to do so, he would shut the Peckford facility down,
are unlawful.
Such threats by Respondent’s highest official to a rep-
resentative of Peckham, a neutral employer, constitutes clear
violation of Section 8(b)(4)(ii)(B) of the Act. Sheet Metal
Workers Local 27 (Camcon), 292 NLRB 1046 (1989); cf.
Iron Workers Local 29 (Hoffman Construction), 292 NLRB
562, 582 (1989), Del Guidice, supra. I so find.
It appears that even accepting Doyle’s version of his con-
versation with Brown, his remark would be considered un-
lawful. Thus where a union makes an unqualified threat to
a neutral general contractor to picket a jobsite where an of-
fending primary employer would be working, and has reason
to believe that persons other than the primary would be at
work on the site, it has an affirmative obligation to qualify
its threat by clearly indicating that the picketing would con-
form to Moore Dry Dock standards or otherwise be in uni-
formity with Board law. Iron Workers Local 118 (Tutor-
Saliba Corp.), 285 NLRB 162, 166 (1987); Iron Workers
Local 433 (United Steel), 280 NLRB 1325 (1986), enfd. de-
nied in pertinent part 850 F.2d 551, 555–558 (9th Cir. 1988);
Food & Commercial Workers Local 506 (Coors Distrib-
uting), 268 NLRB 475, 478 (1983); Sheet Metal Workers
Local 418 (Young Plumbing), 237 NLRB 300, 312 (1976); cf.
NLRB v. District Council of Painters, 340 F.2d 107, 111 (9th
Cir. 1965); Bryant Air Conditioning Co. v. Sheet Metal
Workers Local 541, 472 F.2d, 969, 972 (8th Cir. 1973); See
also Plumbers Local 32 (Ramada, Inc.), 294 NLRB 501 fn.
1 (1989), where the Board found an unqualified threat to
picket to be unlawful, and distinguished the 9th Circuits’ de-
cision in Iron Workers Local 433, supra, in that in the latter
case the neutral employer testified that he understood the
Union’s threat to picket the job to be confined to picketing
the primary employer’s erection work.
In the instant case, even under Doyle’s version, he threat-
ened to put up a picket line at Peckham’s jobsite, because
EPS had a nonunion truck on the job. Doyle further admits
that since there is only one entrance to the site, he predicted
to Brown that most of the employees of other employers at-
tempting to come into the site (90 percent in his opinion)
would not cross the picket line. These remarks of Doyle
would appear to be an unqualified threat to picket, without
any assurances that the picketing would be conducted law-
fully. To the contrary, Doyle’s assertion that he commu-
nicated his belief to Brown, that other neutral employees
would not cross the picket line, if anything suggests sec-
ondary objectives on the part of Respondent, and that it
would not be picketing in conformance with Moore Dry
Dock standards.
Turning to the picketing itself, Doyle’s statement to
Brown, coupled with Jedlicka’s similar remark to Hauer,
constitutes compelling evidence of Respondent’s secondary
objectives. Here, Respondent contacted Peckham, and once
again as it did in the J&B situation, attempted to enmesh
Peckham in its dispute with EPS. Thus, the message commu-
nicated to Peckham was clear. Peckham must convince EPS
to use a Local 456 driver to work at Peckham’s jobsite, or
the job would be shut down. In fact, when Peckham was not
able to do so, the picketing that took place the next day, did
as promised, shut the entire job down. In these cir-
cumstances, I conclude that, like the J&B incident, this con-
duct by Respondent tainted the picketing, and established
that an object of the picketing was to force Peckham to cease
doing business with EPS, in violation of Section 8(b)(4)(i)
and (ii)(B) of the Act. E. J. Doughterty, supra; Rollins,
supra; L. G. Electric, supra.
CONCLUSIONS OF LAW
1. Peckham Materials Corp. is an employer and a person
engaged in commerce within the meaning of Section 2(1),
(2), (6), and (7) of the Act.
2. Local 456, International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. On or about June 5 and 6, Respondent threatened co-
erced and restrained Peckham with an object of forcing
Peckham Co. to cease doing business with J&B Construction
Co. in violation of Section 8(b)(4) and (ii)(B) of the Act.
4. On or about June 5, Respondent induced and encour-
aged employees of Peckham to refuse to load blackstop for
J&B, with an object of forcing Peckham to cease doing busi-
ness with J&B, in violation of Section 8(b)(4)(i) and (ii)(B)
of the Act.
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. On or about June 5, Respondent picketed at Peckham’s
Bedford Hills location, with an object of forcing Peckham to
cease doing business with J&B, in violation of Section
8(b)(4)(i) and (ii)(B) of the Act.
6. On or about November 27, Respondent threatened, re-
strained, and coerced Peckham with an object of forcing
Peckham to cease doing business with Environmental Prod-
ucts and Services, Inc., in violation of Section 8(b)(4)(ii)(B)
of the Act.
7. On or about November 28, Respondent picketed at
Peckham’s Bedford Hills location with an object of forcing
Peckham to cease doing business with EPS in violation of
Section 8(b)(4)(i) and (ii)(B) of the Act.
8. The above described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
9. Respondent has not otherwise violated the Act as al-
leged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices proscribed by Section 8(b)(4)(i) and (ii)(B) of the
Act, I shall recommend that it cease and desist therefrom,
and take certain affirmative action necessary to effectuate the
purposes of the Act.
The General Counsel and the Charging Party contend that
a broad remedial order is appropriate in the circumstances
herein. Respondent, on the other hand, argues that the facts
do not warrant the issuance of such an order.
In Iron Workers Local 378 (N. E. Carlson Construction),
302 NLRB 200 (1991), the Board affirmed its policy to
apply the Hickmott Foods, 242 NLRB 1357 (1979), stand-
ards to secondary boycott situations. Thus, a broad order is
warranted ‘‘where a Respondent is shown to have a prob-
ability to violate the Act or has engaged in such egregious
and widespread misconduct as to demonstrate a general dis-
regard for . . . fundamental statutory rights.’’ Hickmott,
supra. A determination of the need for a broad order in each
case turns on the nature and extent of violations by the Re-
spondent.
Where a union based on its conduct in a particular case,
even absent a history of prior violations, has demonstrated a
practice of organizing jobsites through unlawful secondary
activity, and/or has exhibited a blatant disregard of the Act,
the danger of recurrence and the enmeshing of other
unnamed neutrals or taking action against other primary em-
ployers, warrants a broad remedial order. Service Employees
Local 77 (Thrust IV), 269 NLRB 629 (1982); Carpenters
Local 690 (Bob Moore Construction), 190 NLRB 609
(1971); Teamsters Local 85 (Victory Transportation), 180
NLRB 709, 717–718 (1970).
In my view Respondent’s conduct herein falls within the
ambit of the above-cited authority, and warrants the imposi-
tion of a broad remedial order.
I note initially that although the incidents involved in the
instant case arose out of one charge, were included in one
complaint, and were heard in one hearing, I shall treat them
as two separate incidents for the purposes of assessing pro-
clivity and recidivism by Respondent. These incidents in-
volved two separate primary disputes, which occurred nearly
6 months apart. Clearly the J&B incident could have been
the subject of a separate charge, complaint and hearing, had
Peckham decided to file charges in June, but it did not do
so because the dispute had been resolved. Therefore, it is ap-
propriate to consider these incidents as two separate cases of
similar unlawful conduct by Respondent within a 6-month
period. Cf. Operating Engineers Local 12 (Associated Engi-
neers), 270 NLRB 1172, 1173 (1984).
In evaluating Respondent’s conduct during these incidents,
I note that on both of these occasions, its agents made state-
ments to representatives of Peckham, as well as EPS, that
Respondent intended to shut down the job at the facility of
Peckham, a neutral employer. These remarks ‘‘exhibited a
blatant disregard of the Act and a clear willingness, if not
eagerness to violate it.’’ Thrust IV, supra at 629. See also
N. E. Carlson, supra.
Moreover, these statements, as well as other remarks viola-
tive of the Act, such as Respondent’s intentions not to allow
the primary to be loaded at Peckham’s premises, were made
in both case by the same officials of Respondent, Business
Agent Jedlicka, and President Doyle. See N. E. Carlson,
supra. Indeed here, Doyle Respondent’s president and chief
operating officer was guilty of unlawful statements, which
also tainted the picketing. This forcefully demonstrates that
Respondent’s unlawful activity of enmeshing secondaries is
consistent with union policy and is likely to recur and affect
other employers in the future. Thrust IV, supra.
The reasoning of the administrative law judge in Victory
Transportation, supra, adopted by the Board without com-
ment, is particularly applicable to Respondent’s conduct
herein.
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 ‘‘jurisdic-
tion,’’ in functions which the Union insists, under its
policies, must be performed only under union member-
ship 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 estab-
lishes, have evinced a disposition to enforce its ‘‘juris-
dictional’’ directives with unlawful pressures against
‘‘secondary’’ employers, and disruption of the work of
their employees. Because of the scope of these direc-
tives, and of the misconduct aimed at their enforcement,
it is reasonable to anticipate that the Union, unless ap-
propriately restrained, will engage in similar misconduct
directed against any ‘‘secondary’’ employers who do
not conform to its ‘‘jurisdictional’’ requirements. [Id. at
718.]
Accordingly, I conclude that as in N. E. Carlson, supra,
Respondent has engaged in similar unlawful conduct within
1 year (here within 6 months), involving different employers,
accompanying unlawful picketing with statements by the
same two officials including its president, which demonstrate
a blatant disregard for the Act. In these circumstances, I am
convinced that ‘‘without proper restraint Respondent is likely
to engage in similar conduct in the future against employers
other than those involved here.’’ Id. at 4; Thrust IV, supra;
Bob Moore, supra; Victory Transportation, supra. Therefore,
based on Respondent’s conduct in the instant case, I con-
621TEAMSTERS LOCAL 456 (PECKHAM MATERIALS)
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
clude that a broad order is warranted. See also Thornhill
Construction, supra at 85.
Additionally, I agree with counsel for the General Counsel
and the Charging Party that Respondent’s prior conduct in
Teamsters Local 456 (Westchester Colprovia Corp.), JD–
(NY)–115–182, affirmed by the Board without exceptions
being filed, provides further support for such a conclusion.
The judge therein found that respondent on May 26, 1982,
unlawfully induced employees of a neutral employer not to
load a truck picking up blackstop of the primary employer,
with whom respondent had a dispute in violation of Section
8(b)(4)(i) and (ii)(B) of the Act. It is noteworthy that re-
spondent raised the same defense in that case, that I here and
the judge therein rejected, i.e., that the employees refused to
load the trucks on their own without any instructions from
Respondent.
While Respondent is correct that prior conduct that occurs
over 5 years from the date of the current incidents, are too
remote in time from the present proceeding to establish in
itself a proclivity to violate the Act, Operating Engineers
Local 12 (Hensel Phelps Construction), 284 NLRB 246
(1987). See also Gannett, supra at 69, that does not mean
that such prior incidents cannot be considered at all in as-
sessing the propriety of a broad order.
Thus, in Sheet Metal Workers Union Local 80 (Ciamillo
Heating), 268 NLRB 4 (1982), the Board considered in eval-
uating the propriety of a broad order based on conduct in
March 1983, prior violations by the union found in Sheet
Metal Workers Local 80 (Sise Heating), 236 NLRB 41
(1978), in July 1976 and September 1977. These prior viola-
tions were considered along with other more recent examples
of unlawful conduct by the Union, as part of the Union’s
record which demonstrated a proclivity to violate the Act.
Similarly in the instant case, I believe it is appropriate to
consider Respondent’s conduct in the Westchester case, al-
though the events occurred 8 years before the violations in
question here. It is particularly appropriate to do so, since the
conduct of Respondent therein is so similar to Respondent’s
conduct in 1990, in that once again Respondent sought to en-
force its jurisdictional claims by means of unlawful sec-
ondary activity of inducing employees not to load blacktop.
Thus, I conclude that consideration of the prior case, is fur-
ther demonstrative of the conclusion that I have reached
above by evaluating the two incidents in 1990; i.e., that Re-
spondent has indicated a high probability of recidivism, that
will likely unlawfully enmesh secondaries other than
Peckham, or primaries other than EPS or J&B.
I would add in this connection that it is now appropriate
to consider an administrative law judge’s decision to which
no exceptions have been filed in determining whether Re-
spondent has demonstrated a proclivity to violate the Act.
See Associated Engineers, supra, reversing prior law.
Therefore, based on the foregoing analysis and authorities,
I conclude that a broad cease and desist order is appropriate
and I shall so recommend.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Local 456, International Brotherhood of
Teamsters, AFL–CIO, Portchester and Bedford Hills, New
York, its officers, agents, representatives, shall
1. Cease and desist from
(a) In any manner inducing or encouraging employees of
Peckham Materials Corp. (Peckham) or any other person en-
gaged in commerce or in an industry affecting commerce, to
engage in a strike or refuse in the course of their employ-
ment to use, manufacture, process, transport, or otherwise
handle work on any goods, articles, materials, or commod-
ities, or to perform any services, where an object thereof is
to force or require Peckham or any other person to cease
doing business with J&B Construction Co. (J&B), Environ-
mental Products Services, Inc. (EPS), or with any other per-
son.
(b) In any manner threatening, coercing, or restraining
Peckham or any other person engaged in commerce or in an
industry affecting commerce, where an object thereof is to
force or require Peckham or any other person to cease doing
business with J&B, EPS, or with any other person.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its business offices and all meeting halls copies
of the attached notice marked ‘‘Appendix.’’6 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Furnish the Regional Director with a sufficient number
of signed copies of the notice for posting by Peckham, pro-
vided such employer is willing, at all places where notices
to employees are customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed as
to all violations not found herein.