Teamsters Local 917 (Industry City)

National Labor Relations Board - Board Decisions

Jul 20, 1992

307 N.L.R.B. 1419 (N.L.R.B. 1992)

1419
307 NLRB No. 211
TEAMSTERS LOCAL 917 (INDUSTRY CITY)
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.
In sec. II,C, par. 2, of the judge’s decision, the judge incorrectly
states that the ‘‘Respondent,’’ rather than ‘‘Industry,’’ rejected the
February 1990 demand for a successors-and-assigns clause. We cor-
rect this error.
3 We agree with the judge that the Respondent violated Sec.
8(b)(4)(i) and (ii)(B) by picketing the Bush Terminal ‘‘back build-
ings’’ in July 1990. Contrary to the Respondent’s argument that it
was engaged in lawful handbilling under Edward J. DeBartolo v.
Florida Coast Building Trades Council, 485 U.S. 568 (1988), we
find that its July 1990 conduct constituted unlawful picketing for the
purpose of inducing employees to cease working for tenants of, and
suppliers to, the back buildings. Thus, the Respondent’s representa-
tives wore poster-size placards and patrolled the back-building area.
The fact that the placards contained legends that might otherwise be
protected under DeBartolo is no defense where, as here, the Re-
spondent’s conduct constitutes picketing. Service Employees Local
399 (Delta Air Lines), 293 NLRB 602, 603 (1989) (handbilling law-
ful only when unaccompanied by violence, picketing, patrolling, or
work stoppage). See also Hospital Employees District 1199 (United
Hospitals of Newark), 232 NLRB 443 (1977).
We also agree with the judge that about March 1990 the Respond-
ent violated Sec. 8(b)(4)(ii)(B) by threatening Anthony Esposito, a
supervisor for Bush Realty tenant, Interdynamics. Carpenters Local
316 (Thornhill Construction), 283 NLRB 81, 84 (1987). Thus, on
one occasion, after Esposito directed a supplier’s truck through the
picket line to Interdynamics’ loading dock, the Respondent’s picket
told the driver, in Esposito’s presence, that ‘‘you have no problems
because you don’t work here, but [Esposito] does.’’ A picket then
stated that if any other trucks backed in, they would be broken up.
On a second occasion, when Esposito assisted another supplier into
Interdynamics’ loading dock, a picket told Esposito that he would
‘‘kick [his] butt.’’
4 Sec. 8(d) provides, in pertinent part, that:
[W]here there is in effect a collective-bargaining contract cov-
ering employees in an industry affecting commerce, the duty to
bargain collectively shall also mean that no party to such con-
tract shall terminate or modify such contract, unless the party
desiring such termination or modification—
(1) serves a written notice upon the other party to the contract
of the proposed termination or modification sixty days prior to
the expiration date thereof.
and (4) continues in full force and effect, without resorting to
strike or lockout, all the terms and conditions of the existing
contract for a period of sixty days after such notice is given or
until the expiration date of such contract, whichever occurs later.
5 The Respondent contends that it did not learn of the 1987 back-
building sale until January 30, 1990, when Bush Realty denied its
elevator operators access to the back buildings. The judge found that
the Respondent learned of the sale in about April 1988.
6 See, e.g., Conoco, Inc., 287 NLRB 548, 559 (1987).
Local 917, International Brotherhood of Teamsters,
AFL–CIO1 and Morris Bailey, Sholom Drizen,
Ruben Schron Fruchthandler Brothers Enter-
prises and Joshua Safrin, a partnership d/b/a
Industry City Associates and Bush Realty Asso-
ciates and K & D Development Corp., a part-
nership and d/b/a Bush Realty Associates.
Cases 29–CB–7557, 29–CC–992, and 29–CC–994
July 20, 1992
DECISION AND ORDER
MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH
On April 2, 1991, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel 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 as modified below and to adopt the rec-
ommended Order.
The Respondent excepts to the judge’s finding that
its February 13, 1990 picketing of Industry City Asso-
ciates (Industry) breached the requirements of Section
8(d) and violated Section 8(b)(3). Although the Re-
spondent admits that its February 13 picketing was in
support of a demand that Industry agree to a succes-
sors-and-assigns clause, it disputes the judge’s finding
that Section 8(d) applies.4 The Respondent argues that
its demand for a successors-and-assigns clause was
part of effects bargaining over the back-building sale,5
and was not in connection with the negotiation of a
collective-bargaining agreement. Alternatively, the Re-
spondent contends that the judge erred in finding that
it waived its right to demand bargaining for a succes-
sors-and-assigns provision. We reject these arguments
and find for the reasons set out below that the Re-
spondent’s conduct on February 13 violated Section
8(b)(3).
Initially, even assuming that the Respondent’s Feb-
ruary 1990 demand for effects bargaining was time-
ly—an issue we need not decide—we find that its suc-
cessors-and-assigns proposal exceeded the scope of
‘‘effects bargaining’’ and sought to alter the terms of
its 1989–1992 collective-bargaining agreement with In-
dustry. The Respondent essentially acknowledged this
fact by telling Industry on February 7, 1990, that it
wanted a successors-and-assigns clause to prevent the
problems caused by the 1987 sale from recurring.
Thus, the issue here is whether the Respondent was
privileged to insist that Industry modify the 1989–1992
contract to include a successors-and-assigns clause. It
is well settled that seeking to bind ‘‘successors and as-
signs’’ is a mandatory subject of bargaining.6 It is
equally well established that a party to a collective-bar-
gaining agreement may lawfully require midterm nego-
tiation over mandatory subjects not ‘‘contained in’’ the
1420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Auto Workers Local 547 (Milwaukee Spring) v. NLRB, 765 F.2d
175, 179 (D.C. Cir. 1985).
8 Specifically, the preamble provided that:
Industry City Associates (Bailey Enterprises), and Local 917
I.B.T. have agreed to extend the existing Collective Bargaining
Agreement covering elevator operators and laborers at Buildings
#1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 19, 20, 22, 23, and 26 for one
year with the following changes.
(Buildings 22, 23, and 26 were the ‘‘back buildings’’ which Industry
sold to Bush in 1987).
9 The Respondent did not except to the judge’s finding that, while
not literally a ‘‘strike,’’ the Respondent’s picketing was within the
‘‘clear import’’ of the proscriptions of Sec. 8(d)(4).
agreement.7 Where, however, that party has acquiesced
during negotiations in the exclusion of a mandatory
subject by effectively ‘‘agreeing to disagree’’ on this
issue, and the subject is not incorporated in the con-
tract, it thereafter cannot require midterm bargaining
on that subject. See Robertshaw Controls Co. v. NLRB,
386 F.2d 377, 389 fn. 10 (4th Cir. 1967) (where the
parties have discussed a mandatory subject during ne-
gotiations, but it is not contained in the final contract,
there is no duty to bargain because ‘‘there is an im-
plicit agreement to disagree on the subject’’).
As found by the judge, the Respondent sought to
obtain ‘‘successors and assigns’’ protection from In-
dustry three times before February 1990. The Respond-
ent initially proposed a successors-and-assigns clause
during the 1987 contract negotiations. Industry rejected
this proposal and it was not included in the July 1987–
July 1988 agreement. After the Respondent learned of
the back-building sale, it inserted a preamble in the
1988–1989 contract extending the agreement to eleva-
tor operators throughout the complex.8 Industry ob-
jected to the preamble, saying it included buildings it
did not own. Industry then modified the preamble by
limiting it to elevator operators and laborers ‘‘em-
ployed by Industry ’’ at the listed building. This modi-
fication was incorporated in the 1988–1989 contract.
Finally, during 1989 bargaining, the Respondent pro-
posed—and Industry rejected—a successors-and-as-
signs provision.
In sum, the bargaining history shows that the Re-
spondent repeatedly proposed successors-and-assigns
provisions—including during negotiations for the
1989–1992 contract—yet agreed to contracts excluding
this provision. We find that, by doing so, the Respond-
ent acquiesced in the exclusion of this clause from the
1989–1992 contract, and could not insist on the provi-
sion’s inclusion during the contract’s term. See
Robertshaw Controls Co. v. NLRB, supra. Accordingly,
by thereafter demanding during the term of that con-
tract that Industry bargain over a successors-and-as-
signs proposal, and by its conduct in support of this
demand,9 the Respondent has breached the require-
ments of Section 8(d), in violation of Section 8(b)(3).
See generally Electrical Workers IBEW Local 3 (Bur-
roughs Corp.), 281 NLRB 1099 (1986), enfd. 828 F.2d
936 (2d Cir. 1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 917, International
Brotherhood of Teamsters, AFL–CIO, Brooklyn, New
York, its officers, agents, and representatives, shall
take the action set forth in the Order.
David S. Cohen, Esq., for the General Counsel.
Irving T. Bush, Esq. (Miller & Bush), of New York, New
York, for Local 917.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The Gen-
eral Counsel contends, in these cases which had been con-
solidated for hearing, that Local 917, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO (the Respondent), has engaged in un-
fair labor practices within the meaning of Section 8(b)(3) and
Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations
Act (the Act). More particularly, Respondent is alleged to
have engaged in a strike aimed at forcing partners doing
business as Industry City Associates (Industry City), to agree
to a modification of their collective-bargaining agreement
notwithstanding that the Respondent had not, prior thereto,
complied with the requirements of Section 8(d) of the Act.
Respondent is also alleged to have, by picketing, strikes, and
threats, put secondary boycott pressures on Industry City,
and on commercial tenants, in furtherance of its labor dispute
with a partnership doing business as Bush Realty Associates
(Bush Realty).
Respondent asserts in essence that its strike and picketing
were in protest of conduct by Industry City and by Bush Re-
alty which was tantamount to unfair labor practices on their
part. Specifically, it asserts that Industry City failed to dis-
close timely the sale of certain buildings to Bush Realty in
which employees it represents were employed or to bargain
as to the effects of the sale on those employees, and also that
Bush Realty has refused to offer employment to those em-
ployees when it purchased those buildings. Respecting the al-
leged unlawful involvement of tenants in the picketing, Re-
spondent argues that the picketing in fact did not impact on
them.
I heard this case on several days in August 1990 and on
January 8, 1991. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after due consid-
eration of the briefs filed by the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Both Industry city and Bush Realty own buildings in
which they lease space to commercial tenants. In their re-
spective operations annually, both meet the Board’s standard
for asserting jurisdiction. Also, the pleadings establish that
1421TEAMSTERS LOCAL 917 (INDUSTRY CITY)
Respondent is a labor organization as defined in Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years, Respondent has represented elevator oper-
ators who have worked in all but one of the 16 industrial loft
buildings located in an area in Brooklyn, New York, known
as Bush Terminal. In 1986, Industry City purchased the en-
tire complex there. Industry City recognized Respondent as
the bargaining representative of the elevator operators in
those 15 buildings and assumed the collective-bargaining
agreement covering them, effective then until July 13, 1987.
In August 1987, Respondent and Industry City began ne-
gotiations for a renewal contract. Also in that month, Indus-
try City sold 4 of the 16 buildings to Bush Realty but contin-
ued to provide elevator and other services to those buildings
on a fee basis. Those four buildings are known as the back
buildings and were numbered as buildings 22, 23, 24, and
26. Building 24 has been occupied by a tenant which pro-
vided its own elevator service and is not involved in this
case. As to buildings 22, 23, and 26, the nine elevator opera-
tors employed in them were part of the unit for which Re-
spondent bargained with Industry City. Respondent was not
informed then by Industry City that buildings 22, 23, and 26
had been sold to Bush Realty but rumors of prospective sales
of Industry City buildings prompted the demand, discussed
next.
During the negotiations beginning August 1987, Respond-
ent proposed a successors-and-assigns clause. Its representa-
tive Walter Cahill sent Industry City a written demand dated
September 27, 1987. That demand was rejected by Industry
City. Respondent and Industry City reached an agreement on
December 1, 1987, for a 1-year continuance of the agreement
referred to above and which had expired on July 13, 1987.
It did not contain a successors-and-assigns clause. The con-
tract extension was ratified by the bargaining unit employees.
In March or April 1988, Bush Realty informed Industry
City that it wanted to replace Industry City’s elevator opera-
tors in its buildings 22, 23, and 26, because they cost too
much and that it would hire its own elevator operators.
In April 1988, one of Industry City’s management offi-
cials, Cornelius Kilbane, telephoned Respondent’s business
agent, Cahill, to inform him of Bush Realty’s intention to
hire its own elevator operators to replace those unit employ-
ees furnished by Industry City to buildings 22, 23, and 26.
Kilbane also informed Cahill that Industry City would reas-
sign any replaced elevator operators to its own buildings at
the terminal, i.e., buildings 1–10, 19, and 20. Cahill told
Kilbane the Respondent would not let Bush Terminal replace
the elevator operators at buildings 22, 23, and 26. Respond-
ent’s president, John Burke, called Kilbane later to tell him
that Respondent did not want to lose those jobs in the back
buildings. Kilbane informed both Cahill and Burke that In-
dustry City did not own the back buildings and could not
force Bush Realty to keep its (Industry City’s) elevator oper-
ators there. Burke stated that, if his men are not in those
buildings, there would be a strike.
Kilbane then called Bush Realty. Bush Realty reached an
understanding with Kilbane that Industry City would con-
tinue to provide elevator service to the back buildings until
June 30, 1988, to afford Industry City time to solve Burke’s
stated concerns.
Industry City officials met with Burke and Cahill on June
14, 1988, at a hotel in New York City. There, Kilbane and
also Morris Bailey, Industry City’s managing partner, ex-
plained to them the arrangement Industry City had with Bush
Realty and sought to dissuade them from calling a strike.
Burke stated that he believed that the partners of Bush Realty
were related to the partners in Industry City and that they
were taking this step as the first towards breaking up the unit
represented by Respondent. He rejected Industry City’s offer
to put any replaced elevator operators to work at its own
buildings and the assurances by Industry City that no unit
employee would be laid off.
Burke testified that, at the June 14 meeting, Bailey re-
ferred to a Bush realty principal as ‘‘one of his partners.’’
I do not credit that testimony as it is most unlikely that Bai-
ley would have volunteered such a comment when he was
endeavoring to persuade Respondent not to engage in a
strike. Further, as noted in General Counsel’s brief, Cahill
did not corroborate Burke’s testimony thereon and Burke, in
a related court proceeding, gave testimony inconsistent with
his account before me.
Industry City continued to furnish elevator operators to the
back buildings while it was negotiating with Respondent for
another renewal contract. Those negotiations took place be-
ginning in July 1988. Agreement was reached in December
1988. It was signed in January 1989, effective from July 14,
1988, to July 13, 1989. That agreement also did not contain
a successors-or-assigns clause.
In June 1989, Respondent proposed a 3-year contract. In
October 1989, Industry City and Respondent agreed to sub-
mit certain unresolved issues, wages, benefits and other spec-
ified subjects to binding arbitration. They did not submit Re-
spondent’s proposed ‘‘successors-and-assigns’’ clause; Indus-
try City had rejected that proposal completely.
On November 16, 1989, the arbitrator issued his award
which set out a 3-year renewal contract, effective from July
14, 1989, to July 14, 1992.
It appears that, while those negotiations were going on, In-
dustry City was experiencing difficulty in collecting moneys
owed it by Bush Realty. On January 16, 1990, Kilbane wrote
Bush Realty to ‘‘once again’’ press for payment of $500,000
past due and threatened to cut all services, including electric
power, to the back buildings unless prompt payment was
made. When his effort proved unsuccessful, Industry City
wrote Bush Realty on January 25, 1990, advising that as of
January 29, 1990, ‘‘labor and elevator service’’ would no
longer be provided.
On the morning of January 29, Industry City cut off elec-
trical service to the back buildings and did not send any ele-
vator operators there. It relented several hours later on re-
ceiving word from Bush Realty that it would sue for dam-
ages. The elevator operators reported to the back buildings
that day. In the afternoon, Bush Realty sent a letter to Indus-
try City in which it noted it had already paid $275,000 as
a good-faith response to the January 16 dunning letter and
in which it also stated that it intended to hold Industry City
liable for damages for having cut off the electricity. The let-
ter further stated that, as Bush Realty could not rely on In-
dustry City to furnish elevator services, it was retaining an-
other company to do that work; it informed Industry City
1422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that its elevator operators would no longer be permitted in
the back buildings.
On January 30, 1990, Bush Realty refused to allow Indus-
try City’s elevator operators into its buildings. When Re-
spondent’s steward reported this development that morning
to Dennis Hovanec, Industry City’s director of operations, he
was told that Industry City was willing to assign those opera-
tors to work in its own building. Respondent’s steward re-
plied that he would call Respondent’s president, John Burke,
for guidance.
B. Alleged Unlawful Threats, Strike, and Picketing
Later on January 30, Burke met with Industry City’s chief
executive officer, Isaac Kugel. Kugel whose testimony I
credit, offered to assign the elevator operators affected by
Bush Realty’s actions, to work in Industry City’s buildings.
Kugel told Burke that Industry City does not own the back
buildings. Burke replied that Kugel was playing a game with
him. Burke told Kugel that, if those employees were not re-
turned to the back buildings, Respondent would shut down
the entire complex.
Burke’s testimony is not at material variance with Kugel’s
account. Burke acknowledged that he ‘‘might have’’ and
‘‘probably’’ did tell Industry City that he would call a strike
of all the unit employees if the operators were not put back
to work at the back buildings.
Respondent argues that it has a primary dispute with In-
dustry City based on Industry City’s failure to disclose its
sale in 1988 of the back buildings and its failure to negotiate
the effects of such sale then or since. That contention lacks
merit and is an obvious afterthought as Industry City had, as
related above, previously discussed those matters at length
with Respondent.
Respondent’s president testified, Respondent’s brief to me
stated, and the placards its pickets carried in July 1990 (as
related below)—all make clear that Respondent’s labor dis-
pute was with Bush Realty. It is also clear from Board prece-
dent that Respondent’s primary dispute was with Bush Real-
ty. See Teamsters Local 25 (Boston Deliveries), 282 NLRB
910 (1987). The threat by Respondent’s president to strike
the entire complex thus unlawfully enmeshed Industry City
in that dispute and Respondent thereby has violated Section
8(b)(4)(ii)(B) of the Act. Ironworkers Local 433 (United
Steel), 280 NLRB 1325 (1986).
On February 2, 1990, Respondent set up a picket line out-
side building 19, owned by Industry City and in which In-
dustry City’s office is located. That building also contained
space leased to tenants of Industry City. The placards carried
by Respondent’s members, among whom was its shop stew-
ard, read: ‘‘Unfair Labor, Local 917.’’ That picketing clearly
also sought to enmesh not only Industry City but also the
tenants of building 19 in Respondent’s dispute with Bush
Realty and thus was violative of Section 8(b)(4)(i) and (ii)(B)
of the Act. See Teamsters Local 554 (Prairie Ford), 253
NLRB 1 (1980).
All of Industry City’s elevator operators engaged in a
strike on February 5 and 6, 1990. They picketed all buildings
in the complex, those owned by Industry City as well as
those owned by Bush Realty. The placards they carried bore
the same legends as those carried during the earlier picketing
and Respondent made no effort to avoid enmeshing the ten-
ants of those buildings in the dispute Respondent had with
Bush Realty. The unlawful object of this action was under-
lined by the admission of Respondent’s president that Re-
spondent would like the tenants not to do business with Bush
Realty. Accordingly, I find that Respondent, by its strike and
its picketing on these 2 days at Industry City buildings, vio-
lated Section 8(b)(4)(i) and (ii)(B) of the Act.
Collateral proceedings, held on February 6 in the U.S. Dis-
trict Court for the Eastern District of New York, resulted in
Respondent’s ending its strike and picketing against Industry
City that day. However, Respondent continued for another
month its picketing of Bush Realty, using as its pickets the
individuals who had worked as elevator operators in the
Bush Realty buildings prior to June 30. On February 7, the
placards the pickets carried for the first time identified Bush
Realty as the employer with whom Respondent had a dis-
pute. The continued picketing of Bush Realty also unlawfully
sought to enmesh its tenants, as the testimony of Respond-
ent’s president made clear.
On or about February 13, 1990, a driver declined to cross
the picket line at one of the back buildings. He worked for
Delta Corrugated and was there to deliver supplies to one of
Bush Realty’s tenants, Interdynamics Inc. The pickets de-
clined a request by an Interdynamics supervisor to take down
the picket line so that the Delta Corrugated driver could
make the delivery. In light of the other evidence before me
as to the object of the picketing, I find that the pickets acted
in furtherance of that unlawful object and that the event was
not merely incidental to otherwise lawful picketing. Accord-
ingly, I find that Respondent thereby further violated Section
8(b)(4)(i) and (ii)(B) of the Act.
There is also clear evidence, which I credit, that on two
occasions about a month later, one of Interdynamics super-
visors, traffic manager Anthony Esposito, received threats
from Respondent’s pickets while he was at a loading dock,
receiving deliveries. By those threats, Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(b)(4)(ii)(B) of the Act. See Carpenters Local 316
(Thornbull Construction), 283 NLRB 81, 84 (1987).
Picketing ceased in March and did not resume until July
1990, when Respondent picketed the back buildings for 1-1/2
days with placards reading:
LOCAL 917 IS REQUESTING THAT YOU DO NOT DO
BUSINESS WITH
(NAME OF TENANT)
OR ANY OTHER EMPLOYER LOCATED IN THESE BUILD-
INGS, BECAUSE BUSH REALTY CO., THE OWNER OF
THESE BUILDINGS, CONTRIBUTES TO THE SUB STANDARD
WAGES TO ITS ELEVATOR OPERATORS.
PAYMENT OF SUB-STANDARD WAGES NOT ONLY DI-
MINISHES THE WORKING PERSONS ABILITY TO PUR-
CHASE WITH EARNED RATHER THAN BORROWED DOL-
LARS, BUT ALSO UNDERCUTS THE WAGE STANDARDS
FOR THE ENTIRE COMMUNITY. ALL OF THE TENANTS IN
THESE BUILDINGS SHOULD DEMAND COOPERATION
FROM BUSH REALTY CO. FOR THE DECREASE IN PUR-
CHASING POWER OF THESE EMPLOYEES.
WE ASK THAT YOU SUPPORT OUR PROTEST AGAINST
SUB-STANDARD WAGES. PLEASE DO NOT PATRONIZE
(NAME OF TENANT) OR ANY OTHER TENANT IN THESE
1423TEAMSTERS LOCAL 917 (INDUSTRY CITY)
BUILDINGS UNLESS BUSH REALTY CO. PROMISES TO PAY
FAIR WAGES TO ALL OF ITS ELEVATOR OPERATORS.
WE ARE APPEALING ONLY TO THE PUBLIC, THE CON-
SUMER. WE ARE NOT SEEKING TO INDUCE ANY PERSON
TO CEASE WORK OR TO REFUSE TO MAKE DELIVERIES
OR PICKUPS.
LOCAL 917
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
This picketing patently sought to induce employees to
cease working for the respective tenants and their suppliers
in order to force their employers to cease doing business
with Bush Realty and thereby also coerced those employees
to that end. Respondent thereby violated Section 8(b)(4)(i)
and (ii)(B) of the Act.
C. Alleged Bad-Faith Bargaining
The General Counsel contends that Respondent unlawfully
picketed Industry City for about 4 hours on February 13,
1990, to coerce Industry City to agree to add to their collec-
tive-bargaining agreement a successors-and-assigns clause.
Respondent contends that its February 7, 1990 demands for
such a clause were made to protect unit jobs.
First of all, I find, based on the resumption of the pick-
eting of Industry City on February 13, the timing thereof rel-
ative to the demand of Respondent’s president on February
7 for a successors-and-assigns clause and Respondent’s rejec-
tion of that demand, that the picketing was undertaken in fur-
therance of that demand.
General Counsel’s theory is that, as the collective-bar-
gaining agreement between Respondent and the Union does
not contain a successors-and-assigns clause nor a provision
allowing one party to reopen it during its term in order to
require the other party to bargain on a successors-and-assigns
clause, Respondent is barred now from picketing to force In-
dustry City to agree to such a clause. In support thereof,
General Counsel relies on the purpose and provisions of Sec-
tion 8(d) of the Act. Respondent asserts that, as it never
clearly and unmistakedly waived its right to demand bar-
gaining as to a successors-and-assigns clause, Industry City
is required to honor its request to bargain thereon and, as a
corollary, that Respondent has a right to put economic pres-
sure on Industry City via picketing in furtherance of its de-
mand. Respecting Respondent’s contention, General Counsel
notes that Respondent, in negotiations, had unsuccessfully
sought to secure a successors-and-assigns clause. In par-
ticular, Respondent’s proposals thereon were rejected by In-
dustry City and thus did not become part of the agreement
reached in 1987 to extend the contract for 1 year. Respond-
ent made substantially the same demand, with the same re-
sult, when the contract was extended to July 1989 on agree-
ment in December 1988. Lastly, Respondent presented Indus-
try City with a number of demands in negotiations during the
latter half of 1989, including one for a successors-and-as-
signs clause. Respondent and Industry City agreed to submit
to arbitration the unresolved demands which were blocking
agreement on a renewal contract. Industry City had again ob-
jected to the inclusion of a successors-and-assigns clause in
any renewal contract and that demand was not among those
submitted for arbitration. As noted above, on issuance of the
arbitration award, Respondent and Industry City signed a 3-
year contract, effective until July 1992.
Section 8(d) of the Act defines the obligation to bargain
collectively. It also expressly provides that the duties so im-
posed shall not be construed as requiring either party to dis-
cuss or agree to any modification of the terms and conditions
contained in a contract for a fixed period, if such modifica-
tion is to become effective before such terms and conditions
can be reopened under the provisions of the contract. The 3-
year contract between Respondent and Industry City makes
no allowance for bargaining during its 3-year period respect-
ing a successors-and-assigns clause. Perforce, Industry City
has no obligation to respond to Respondent’s demand of
February 7, 1990. See Connecticut Power Co., 271 NLRB
766 (1984). Respondent’s reliance on Arizona Public Service
Co., 247 NLRB 321 (1980), is misplaced as, in that case, ar-
ticle XII of the agreement contained appropriate ‘‘reopener’’
language.
Section 8(d) provides, in defining the duty to bargain, that
no party shall terminate or modify such contract during its
term unless certain conditions are met—two of which Re-
spondent may not avail itself of now and another that re-
quires it to continue the contract in effect without striking.
Respondent has not terminated or modified the contract and
has not engaged in a strike. It did picket however, using the
elevator operators formerly assigned to the back buildings.
While the literal language of Section 8(d) does not bar pick-
eting, the obvious aim of the picketing by Respondent on
February 13 was to induce employees, who deliver to Indus-
try City buildings, to refrain from making those deliveries.
To give effect to the clear import of the provisions of Sec-
tion 8(d), I find that the picketing by Respondent violated its
duty to bargain collectively with Industry City as defined in
Section 8(d) of the Act and that Respondent thereby com-
mitted an unfair labor practice as defined in Section 8(b)(3)
of the Act.
Even were there merit to Respondent’s contention that In-
dustry City must bargain about any term or condition not
contained in that current contract I would find that Industry
City still would not be obligated to bargain now as to a suc-
cessors-and-assigns clause as it had unquestionably rejected
such a provision three times. I would thus find that Respond-
ent, having suffered those rejections and having still signed
renewal agreements, had clearly and unmistakably waived
any right it might have had to seek bargaining thereon now.
Cf. Proctor Mfg. Corp., 131 NLRB 1166 (1961), a case Re-
spondent cited for the general proposition but which is factu-
ally inapposite.
CONCLUSIONS OF LAW
1. Respondent is a labor organization as defined in Section
2(5) of the Act.
2. Industry City and Bush Realty are each an employer
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Respondent has engaged in unfair labor practices as de-
fined in Section 8(b)(4)(i) by having
(a) Picketed Industry City and its tenants in building 19
on February 2, 1990, in order to force Industry City to cease
doing business with Bush Realty.
(b) Engaged in a strike and picketing against Industry City
and its tenants on February 5 and 6, and by picketing tenants
of Bush Realty and their suppliers from February to March
1424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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.
2 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.’’
5, 1990, and in July 1990 in order to force Industry City and
the tenants of Bush Realty to cease doing business with Bush
Realty.
4. Respondent has engaged in unfair labor practices as de-
fined in Section 8(b)(4)(ii)(B) by having
(a) Engaged in the conduct described in paragraph 1
above.
(b) Threatened, by the statement of its president on Janu-
ary 30, 1990, to shut down the operations of Industry City
and of all tenants thee in order to force Industry City and
the tenants of Bush Realty to cease doing business with Bush
Realty.
(c) Threatened a supervisor of one of Bush Realty’s ten-
ants, Interdynamic Inc., with physical harm in order to re-
strain and coerce Interdynamics from doing business with
Bush Realty.
5. Respondent has engaged in an unfair labor practice
within the meaning of Section 8(b)(3) of the Act by having
picketed Industry City on February 13, 1990, in order to
compel Industry City to agree to modify the current collec-
tive-bargaining agreement between them so as to include a
successors-and-assigns clause, notwithstanding Industry
City’s repeated rejections thereon in earlier negotiations and
the provisions of the collective-bargaining agreement be-
tween Respondent and Industry City.
6. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Local 917, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, Brooklyn, New York, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Picketing the buildings owned by a partnership d/b/a
Industry City Associates (Industry City) in order to force it
to cease doing business with a partnership d/b/a Bush Realty
Associates (Bush Realty)
(b) Engaging in a strike against Industry City or picketing
Industry City, its tenants or those of Bush Realty in order
to force Industry City or Bush Realty tenants from doing
business with Bush Realty.
(c) Threatening to shut down the operations of Industry
City, those of its tenants or those of the tenants of Bush Re-
alty in order to force Industry City and the Bush Realty ten-
ants to cease doing business with Bush Realty.
(d) Threatening any supervisor of Interdynamic Inc., a ten-
ant of Bush Realty, in order to force Interdynamic to cease
doing business with Bush Realty.
(e) Failing and refusing to bargain collectively with Indus-
try City by picketing during the term of its collective-bar-
gaining agreement with Industry City to force Industry City
to include therein a ‘‘successors-and-assigns’’ clause.
(f) In any like or related manner restraining or coercing
employees in the exercise of their rights under Section 7 of
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the notice, on
forms provided by the Regional Director for Region 29, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees and
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) Sign and mail to the Regional Director for Region 29,
sufficient copies of the notice to the Regional Director for
posting by Industry City and by Bush Realty, if willing, at
all places where employee notices 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.
APPENDIX
NOTICE TO EMPLOYEES AND 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 vio-
lated the National Labor Relations Act and has ordered us
to post this notice and abide by its provisions.
WE WILL NOT picket buildings owned by the partnership,
d/b/a Industry City Associates (Industry City) in order to
force it to cease doing business with a partnership d/b/a Bush
Realty Associates (Bush Realty).
WE WILL NOT engage in a strike against Industry City or
picket Industry City, or its tenants or the tenants of Bush re-
alty in order to force Industry City or the tenants of Bush
Realty from doing business with Bush Realty.
WE WILL NOT threaten to shut down the operations of In-
dustry City, those of its tenants or those of the tenants of
Bush Realty in order to force Industry City or the tenants of
Bush Realty to cease doing business with Bush Realty.
WE WILL NOT threaten any supervisor of Interdynamic
Inc., in order to force Interdynamics to cease doing business
with Bush Realty.
WE WILL NOT fail and refuse to bargain collectively with
Industry City by picketing during the term of our current
contract with it to force it to include in it a ‘‘successors-and-
assigns’’ clause.
1425TEAMSTERS LOCAL 917 (INDUSTRY CITY)
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
LOCAL 917, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL–CIO