Teamsters Local Union No. 408, Etc.

National Labor Relations Board - Board Decisions

Jul 13, 1961

132 N.L.R.B. 117 (N.L.R.B. 1961)

TEAMSTERS LOCAL UNION NO. 408, ETC. 117
Teamsters Local Union No. 408, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America
and Chas. S . Wood & Co . Case No. 22-CC-97. July 13, 1961
DECISION AND ORDER
On February 6, 1961, Trial Examiner Arnold Ordman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the entire record in
this case, including the Intermediate Report and the exceptions and
brief, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Teamsters Local
Union No. 408, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers, representatives,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Inducing or encouraging any individual employed by any
person engaged in commerce or in an industry affecting commerce,
other than Chas. S. Wood & Co., to engage in a strike or a refusal in
the course of his employment to perform any services, where an object
thereof is forcing or requiring any person to cease doing business with
Chas. S. Wood & Co.
3 Chas. S. Wood & Co. urged upon the Trial Examiner that he find the total pattern of
conduct violative of the Act because of the Respondent's picketing and conduct at the
Company's warehouse and office facilities The Trial Examiner rejected this contention,
holding McJunkin Corporation , 128 NLRB 522, Inapposite on the facts . Absent excep-
tions, we adopt the Trial Examiner' s findings and conclusions in these respects pro forma.
Member Brown would sustain only those alleged violations predicated on the oral
appeals and picketing at the Public Service location and he would not, in any respect,
rely on a Washington Coca Cola theory.
132 NLRB No. 10.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Threatening, coercing, or restraining any person engaged in
commerce or in any industry affecting commerce, other than Chas. S.
Wood & Co., where an object thereof is forcing or requiring any person
to cease doing business with Chas. S. Wood & Co.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices and meeting halls, copies of the notice attached
to the Intermediate Report marked "Appendix." 2 Copies of said
notice shall also be posted by Respondent, subject to permission being
granted by the respective authorities in charge thereof, at the Reich-
hold Chemical construction site in Elizabeth, New Jersey, and at the
Public Service construction site in Duck Island, Hamilton Township,
New Jersey. Copies of said notice, to be furnished by the Regional
Director for the Twenty-second Region, shall, after being duly signed
by an authorized representative of Respondent, be posted by Respond-
ent immediately upon receipt thereof and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-second Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
2 This notice shall be amended by substituting . for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly desig-
nated Trial Examiner in Newark , New Jersey , on October 24 and 31 , 1960, on
complaint of the General Counsel and answer of Respondent , Teamsters Local 408,
more fully named in the caption. The issue litigated in the complaint was whether
Teamsters Local 408 violated Section 8(b) (4) (i ) and (ii ) ( B) of the National Labor
Relations Act, as amended ( 61 Stat . 136, 73 Stat. 519).
At the opening of the hearing the Charging Party , Chas. S. Wood & Co., moved
to amend the complaint by adding an allegation that Teamsters Local 408 had
refused to bargain with Chas . S. Wood & Co . in violation of Section 8(b)(3) of the
Act. General Counsel , in whom Section 3(d) of the Act vests "final authority, on
behalf of the Board , in respect of the investigation of charges and issuance of com-
plaints . . . and in respect of the prosecution of such complaints ...," objected to
the proposed amendment . The Trial Examiner denied the motion to amend.' The
Trial Examiner likewise denied a motion made by Teamsters Local 408 at the close
,of General Counsel's presentation of evidence to dismiss the proceeding for failure
i It subsequently appeared that the Regional Director of the Board had earlier dis-
missed an unfair labor practice charge alleging a Section 8(b)1(3) violation in this re
gard. It is likewise a matter of public record that during the pendency of the hearing in
the instant case, another hearing was pending based upon a complaint issued by General
Counsel alleging that Chas S Wood & Co had iefused to bargain with Teamsters Local 408
in violation of Section 8(a) (5) and ( 1) of the Act.
TEAMSTERS LOCAL UNION NO. 408, ETC. 119
to establish a prima facie case. At the end of the hearing Teamsters Local 408 again
moved for dismissal. Ruling on this motion was reserved and is presently denied
consistent with the findings and conclusions set forth hereunder. All parties argued
orally after evidence was taken and thereafter briefs, which have been fully con-
sidered, were filed by Teamsters Local 408 and Chas. S. Wood & Co.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Chas. S. Wood & Co., herein called Wood Company, has its main office and
warehouse in West Orange, New Jersey. Its principal business is the installation of
thermal insulation which is done at various construction sites in New Jersey and other
Eastern States of the United States. In 1959, Wood Company purchased over
$1,000,000 worth of goods and materials of which about $500,000 worth came
from States other than the State of New Jersey. I find that Wood Company is
engaged in commerce within the meaning of the Act.
United Engineering & Constructors, Inc., Badger Manufacturing Company, Grif-
fith Electric Supply Co., and Union Trucking Co., to which reference will herein-
after be made, are duly organized corporations which are likewise engaged in
commerce within the meaning of the Act as shown by a stipulation executed by the
parties and made part of the record-herein.
I find that the Board has jurisdiction over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, Teamsters Local 408, is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
At its main office and warehouse in West Orange, New Jersey, Wood Company
employs an office staff force consisting of sales, executive, and administrative per-
sonnel. In addition to the foregoing personnel, who are unrepresented for purposes
of collective bargaining, four operating employees report to work at the West Orange
location. These four employees are Edward Wakeling and Herman Heller, truck-
drivers, whose duties are to make pickups and deliveries between the West Orange
warehouse and various construction sites where Wood Company is doing installation
work; John Komar, the warehouseman at West Orange; and Paul Caputo, a part-time
combination truckdriver and warehouseman. As required, Caputo performs regular
truckdriver duties, works as a warehouseman at West Orange, or performs truck-
driving duties within the boundaries of particular construction sites where Wood
Company is operating. These four employees are represented for purposes of col-
lective bargaining by Teamsters Local 408.
Wood Company also has a field force which does the actual installation of thermal
insulation at the various construction sites where Wood Company has a contract
or subcontract for such installation. The employees in this field force are repre-
sented for collective bargaining by an asbestos workers' union not affiliated in any
way with Teamsters Local 408 or with Teamsters International. The employees in
the field force do not report to Wood Company's West Orange office but report only
to the construction sites where the installation work is being done.
The events here relevant arose out of a labor dispute between Wood Company
and Teamsters Local 408 respecting the four employees heretofore named whom
Teamsters Local 408 represented. A collective-bargaining agreement between the
parties covering these four employees expired on April 30, 1960. Negotiations for
a new agreement were unsuccessful and on the morning of July 19, 1960, the four
employees represented by Local 408 went on strike pursuant to a vote of the member-
ship the previous night. On the morning of July 19, Anthony Cusano, president and
business manager of Teamsters Local 408, sent a letter to the building trades of
Essex and Union Counties, New Jersey, informing them that there was a strike and
that it involved only Chas. S. Wood & Co.
Picketing activities by the four strikers, authorized by Teamsters Local 408, began
immediately. Thus, picketing started at Wood Company's West Orange premises
on the morning of July 19 and was still continuing at the time of the instant hearing.
On July 20 pickets were stationed at the Reichhold construction site, where Wood
Company was doing installation work under a subcontract with Badger Manufac-
turing Company which was the prime contractor engaged in the building of a plant
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Reichhold Chemical on the latter's premises. The picketing on this site con-
tinued for 3 days, July 20, 21, and 22, and on the third day Teamsters Local 408
voluntarily withdrew the picket line. The only other picketing which occurred was
at the Public Service construction site where Wood Company and other contractors
were engaged under the supervision of United Engineers & Constructors, Inc., in
building a generating station for the Public Service Gas & Electric Company. The
picketing at the Public Service site occurred on August 8, 1960, and was only of
several hours' duration. As in the Reichhold situation Teamsters Local 408 volun-
tarily withdrew its pickets.
In all three locations the pickets carried signs stating, in substance, "Teamsters
Local 408 On Strike Against Chas. S. Wood & Co." The picketing at Reichhold
and Public Service was peaceful and orderly. As already indicated, the Wood Com-
pany employees at these two sites belonged to the field force which was represented
by a union unaffiliated with Teamsters Local 408 or with the parent Teamsters
International. So far as the four strikers were concerned, John Komar, the ware-
houseman at West Orange, never worked at Reichhold or at Public Service, and
truckdrivers Heller and Wakeling came there only in connection with pickups or
deliveries. Paul Caputo, the fourth striker, occasionally did perform trucking serv-
ices at construction sites. In fact, Caputo had been doing such work on the Public
Service site until sometime before the strike. Thereafter and before the strike began
he was assigned to truckdriver duties out of the West Orange location and was
performing these duties at the outbreak of the strike.
The allegations of the complaint are that Teamsters Local 408, by its picketing and
related conduct at the Reichhold and Public Service sites, violated Section 8(b) (4) (i)
and (ii) (B) of the Act. General Counsel neither alleged in his complaint nor relied
upon the picketing and related conduct at Wood Company's West Orange premises
in support of his position. Wood Company, the Charging Party, argues, neverthe-
less, that under the authority of McJunkin Corporation, 128 NLRB 522, Teamsters
Local 408's picketing and related conduct at West Orange, even though that location
was indisputably a primary situs of the labor dispute, must nevertheless be taken
into consideration as part of the "total pattern of conduct engaged in by the union." 2
Teamsters Local 408, while not disputing the basic fact pattern here outlined, denies
that it engaged in unfair labor practices.
A more detailed consideration of the relevant evidence follows:
B. Picketing and related conduct
1. The events at Reichhold
Picketing, authorized by Teamsters Local 408, began at the Reichhold con-
struction site on the morning of July 20, 1960. The day before, July 19, Heller
and Wakeling came to see Jack Decker, construction superintendent for Badger
Manufacturing Company, the prime contractor, at the Reichhold site, told him that
they were on strike against the Wood Company, and that they were going to set
up a picket line. They assured Decker that the picket line was not directed against
any other contractors on the project and that deliveries to or pickups from such
contractors would not be affected. After the picketing started, President Cusano of
Teamsters Local 408 gave similar information to John Riggi, business representative
of the Laborers Union Local, and Sal Miglore, business representative of the Brick-
layers Union Local, unions respectively representing employees working at the
Reichhold site. Cusano told them in substance that the strike was against Wood
Company only, that their men were to go through the picket line and continue
working, and that their men were to "[h]onor the job, and not the picket signs."
The crafts involved continued to work.
The pickets, carrying signs which have already been described, patrolled at the
main gate of the Reichhold construction site. Both Reichhold employees and the
employees engaged in construction work used the main gate to enter and leave the
premises. Deliveries were also made through this gate 3 which was located about
1,000 feet from the actual area of construction where Wood Company's full force
was at work. Teamsters Local 408, however, never asked for permission to picket
closer to the actual area of Wood Company's operations.
When the picketing started on the morning of July 20, there was some "milling
about" by employees at the main gate. However, all the crafts went to work except
2 The validity of this contention and its applicability to the instant situation will be
considered later in this report
s Some employees used a different entrance located near the parking lot used by em-
ployees to park their cars. There was no picketing at this parking lot entrance.
TEAMSTERS LOCAL UNION NO. 408, ETC. 121
for some electricians who delayed reporting for about an hour and Wood Company's
employees in its field force who lost about a half day's work. Aside from the fore-
going, work continued on the jobsite without interruption throughout the 3 days
during which picketing was conducted. Charles A. Wood, president of Wood Com-
pany, acknowledged that work on his subcontract was proceeding on schedule. Gen-
erally speaking, deliveries to the Reichhold site also continued without interruption.
Occasionally , truckdrivers who were making deliveries would stop upon seeing the
pickets and inquire what the situation was. The pickets, pursuant to their instruc-
tions from Teamsters Local 408, would reply that the strike was against Wood
Company only. If the truckdrivers manifested that their deliveries were for Wood
Company the pickets would ask that the truckdrivers respect the picket line. In a
few instances truckdrivers left without making delivery.
As stated, Teamsters Local 408, through its president and business agent, Cusano,
voluntarily terminated the picketing at Reichhold on July 22, 1960, because as
Cusano testified at the hearing, "putting a picket line would confuse it [sic]." No
further picketing by Teamsters Local 408 has taken place at Reichhold.
2. The events at Public Service
The picketing which Teamsters Local 408 authorized and conducted at the Public
Service site occurred on August 8, 1960, and spanned a period of only several hours.
This site, at which operations were still going on at the time of the hearing, has two
gates. One gate, marked "Public Service Gas & Electric" is used only by Public
Service employees and is closed when not in use by them. The other gate is marked
"Construction Workers" and is used by the employees in Wood Company's field
force and by the employees of the other contractors on the project. The construction
gate is also used for deliveries. As already noted, Caputo worked as a truckdriver on
the Public Service site until sometime before the strike when he was transferred to
other duties.
The picketing in which Teamsters Local 408 engaged at Public Service was con-
fined to the construction gate which , as in the Reichhold situation, was located
about 1,000 feet from the construction site where Wood Company's field force was
at work . So far as appears, Teamsters Local 408 made no request for permission to
picket closer to the actual site of Wood Company's operations. In any event, several
hours after the picketing began, Cusano learned that as a result of a prior strike
called by some other trade, the Public Service project had been shut down for 4 or
5 weeks and that work had just been resumed. Accordingly, Cusano called off the
picket line because, as he testified, "I couldn't see any craft being on strike sup-
porting us. The strike is only to the employees of Chas. Wood, only . I couldn't
see the men not working again." No further picketing occurred at Public Service.
As at Reichhold, Teamsters Local 408 indicated at Public Service, both by its
picket signs and by oral communication, that its action was directed against Wood
Company only. Work continued without any interruption at Public Service by all
employees including Wood Company's field force. For the most part, deliveries to
that site likewise continued to be made in normal course. However, there is credible
evidence that in a few instances, at least, pickets interfered with deliveries made to
contractors other than the Wood Company. Woodrow Farrell, a truckdriver for
Union Trucking Co., testified that he came to the Public Service site on August 8
with a delivery of electrical materials for an electrical contractor on the site, that
he asked one of the pickets who the strike was against, that he understood the picket
to answer C. D. Wood, that he then asked whether any deliveries were being made,
and that the picket did not answer directly but shook his head in a manner which
Farrell understood as meaning no. Farrell left without making delivery. William
Miklovic, a truckdriver for Griffith Electric Supply Co., testified that he, too, came
to the Public Service site on August 8 with a delivery of electrical material for
Public Service. According to Miklovic, he saw pickets carrying strike signs, stopped
his truck outside the gate, and asked the guard on duty what the strike was about.
The guard said he did not know. Miklovic then spoke to one of the strikers and
asked, "Are the trucks going in?" The striker replied, "Well, you can go in if you
want to. We can't stop you. But if you are ever on strike we'll do the same to
you." Miklovic then drove away without making delivery.4
4 Wakeling , who was a picket at Public Service, testified that some turned away with-
out making deliveries but denied that he or anyone else present at the time stopped any
driver from going into the plant. Heller, who also picketed at Public Service, admitted
that he talked to one or more truckdrivers at Public Service but denied that he stopped
or threatened anyone with respect to their entering or leaving the plant. Neither Farrell
nor Miklovic identified the pickets with whom they talked . However, so far as appears,
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The events at West Orange
As already stated, Wood Company had its main office and warehouse in West
Orange, New Jersey, the four strikers represented by Teamsters Local 408 regularly
reported to work at this location, and it is undisputed that that location was, in
labor law parlance, a primary situs of the labor dispute. Picketing began here on
July 19, 1960, the first day of the strike, and was still continuing at the time of
the hearing. The number of pickets varied, starting with three or four at the begin-
ning and dwindling to one toward the latter months. Much of the evidence relating
to the West Orange events is in sharp conflict.
Charles A. Wood, president of Wood Company, testified, for the most part in
general terms, that on occasion the pickets physically blocked ingress and egress
from the company driveway, locked arms to keep trucks from passing through, and
made abusive comments to drivers. As a result, Wood testified, practically the only
trucker regularly picking up materials and making deliveries at the West Orange
warehouse was Colonial Motor Hauling, Inc., a newly formed corporation, which
Wood Company utilized after the strike to do the work formerly done by its strik-
ing drivers.
Gilbert Fehn, a Wood Company vice president, testified that in the latter part of
July, a truckdriver from A. Gross Company was unable to leave the West Orange
warehouse with his loaded truck because the three men who were picketing kept
walking across the driveway so that there was no room to drive through.
Felix Oliviero, who owned half of the newly formed Colonial Motor Hauling,
Inc., the other half being owned by his two sons, also testified as to picketing and
related activities of Teamsters Local 408. Felix Oliviero had formerly done land-
scaping work for Charles A. Wood but, as previously noted, was retained by Wood
Company upon the outbreak of the strike to do the trucking work previously done
by the strikers .5 According to Felix Oliviero, on or about August 10, 1960, he and
his son, Philip, drove a truck into the West Orange premises after rejecting a request
by the picketer, John Komar, to support the strike by staying out. After loading
the truck, the Olivieros started to drive out but Komar, according to Felix Oliviero,
stood in front of the driveway, preventing their exit. Felix Oliviero testified that he
then came around to the front of the truck, which his son was driving, and asked
permission to go through. At that point, Felix Oliviero testified, Komar fell on top
of him and cried out, "The truck hit me, the truck hit me." 6
Felix Oliviero further testified that this was the only occasion when his entry or
exit to the West Orange warehouse was barred by pickets and that except for this
single instance, he regularly performed his trucking services at that location with-
out interruption. However, Felix Oliviero testified that on a later occasion he was
followed by Komar and Amiano, acting business agent for Teamsters Local 408,
until he, Oliviero, complained to a policeman, and that on the following day, while
making a stop at a chemical plant, Amiano told him "there is going to be trouble if
you don't cut it out. I've got friends." 4
Wakeling, Heller, Komar, and Caputo, all of whom took part in the picketing at
the West Orange warehouse, as well as Amiano, who visited that scene on numerous
occasions, likewise testified as to the picketing and related events at West Orange.
The net of their testimony was that the picketing was peaceful and orderly, that the
pickets never locked arms to obstruct ingress or egress from the Wood Company
premises, and that they never threatened or abused anyone. They further testified
that pickups and deliveries continued throughout the strike but that on numerous
occasions when truckdrivers stopped to inquire what the situation was, the pickets
told them that the strike was against Wood Company and asked that the picket
Farrell and Miklovic were disinterested witnesses, their testimony was straightforward
and convincing, and I find that the incidents to which they testified occurred as they
related them.
6 Teamsters Local 408 sought to establish that Wood Company had a financial interest
1n, connection with, or control over, Colonial Motor Hauling, Inc, so as to preclude the
latter from being deemed an independent contractor vis-a-vis the Wood Company. The
evidence, however, does not warrant a finding that such a financial nexus existed.
6 Philip 011viero corroborated his father's version of this incident.
a In this connection counsel for Wood Company sought to adduce evidence that Oliviero
had received telephone threats, that the windshield of Oliviero's truck had been hit by a
shot from an air rifle, and that someone had tried to pour a foreign substance into the
gas tank of Oliviero's truck. Counsel acknowledged, however, that he had no knowledge
whatever as to the perpetrators of these alleged acts. Under these circumstances, the
Trial Examiner excluded the evidence but permitted an offer of proof to be made.
TEAMSTERS LOCAL UNION NO. 408, ETC. 123
line be respected. Some of the truckdrivers heeded this request but the majority
went through the picket line.
With respect to the August 10 incident between the Olivieros and Komar, the
latter in his testimony confirmed that the Olivieros had crossed the picket line despite
his request to them to support the strike, and that the Olivieros had loaded their
truck. His testimony as to what happened thereafter differed sharply from the
Olivieros' version. According to Komar, as the Olivieros were pulling out of the
driveway he was patrolling in front of the entrance. Felix Oliviero got out of
truck, walked around in front of it, and pushed Komar off balance. Komar pro-
tested this treatment, an argument ensued, and during the argument Philip Oliviero
who was driving the truck propelled it against Komar who landed in the gutter.
Komar testified further that Fehn, Wood Company vice president, came running
out at that juncture, took Komar's picture as he lay in the gutter, and told Komar
to send the bill to him and that he would take care of it .8
Amiano in his testimony acknowledged that he and Komar had followed Felix
Oliviero on the occasion to which the latter testified. His purpose, Amiano testi-
fied, was to find out where the deliveries were being made. Amiano denied, however,
ever threatening Oliviero, stating to Oliviero that there was going to be trouble, or
stating that he, Amiano, had a lot of friends.
As the foregoing recital shows, much of the evidence is in sharp conflict. To the
extent that these conflicts are material to the resolution of the issues here presented,
they will be resolved in the succeeding section of this report.
C. Analysis and conclusions
Section 8(b) (4) (i) and (ii) (B) of the Act, so far as here relevant, provides
that it shall be an unfair labor practice for a labor organization, or its agents-
(4) (i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in any industry affecting commerce to
engage in, strike or a refusal in the course of his employment . . . to perform
any services; or (ii) to threaten, coerce, or restrain any person engaged in com-
merce or in an industry affecting commerce, where in either case an object
thereof is:
* * * *
(B) forcing or requiring any person . . . to cease doing business with any
other person, . . . Provided, That nothing contained in this clause (B) shall
be construed to make unlawful, where not otherwise unlawful, any primary
strike or primary picketing; ... .
Section 8(b) (4) (i) (B) reenacts, with differences not critical here, the predecessor
provisions of Section 8(b) (4) (A) of the Taft-Hartley Act, the so-called "secondary
boycott" clause. Section 8(b) (4) (ii) (B), on the other hand, introduces an element
not present in the predecessor provisions. Thus, under Section 8(b) (4) (ii) (B),
it is likewise an unfair labor practice for a labor organization to threaten, coerce, or
restrain any person (including, of course, an employer) engaged in commerce or
in an industry affecting commerce where an object is forcing or requiring a cessation
of business relationships as set forth in the statute.
General Counsel's position, in sum, is that Teamsters Local 408, by picketing at
the Reichhold and Public Service locations, common situs projects where employees
of employers other than Wood Company were at work, induced and encouraged em-
ployees of those employers to refuse to perform services and that an object of that
inducement and encouragement was to force or require the employers to cease doing
business with Wood Company, in violation of Section 8(b) (4) (i) (B) of the Act.
General Counsel takes the further position that this same conduct likewise consti-
tuted restraint and coercion of such employers within the meaning of Section
8(b) (4) (ii) (B) of the Act. In support of this position General Counsel shows that
the real situs of the labor dispute between Teamsters Local 408 and Wood Company
was at the latter's West Orange premises where the four employees represented by
Teamsters Local 408 regularly reported to work. Teamsters Local 408 was entitled
to, and did, picket at that location. There was no need, therefore, to invoke the lati-
tude extended to a union to picket, with appropriate precautions, a primary em-
ployer at a common situs. That latitude is normally extended only in situations
where the dispute arises at the common situs and either a limited form of picketing
must be permitted at that situs or the right to effectively picket the primary employer
8 Philip Oliviero confirmed that Fehn had taken Komar's picture. Fehn did not testify
as to this incident.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be denied altogether. In the instant case where picketing could be and was
conducted at the situs where the dispute arose and where only employees of the
primary employer would be directly involved, resort to additional picketing at a
common situs where employees of other employers are'also necessarily affected tends
to refute the notion that such picketing is intended only as an appeal to the primary
employer's employees. On the contrary, General Counsel argues, it is apparent that
the appeal of such picketing was not limited to the employees of the primary em-
ployer, that it was intended also as an inducement to other employees to cease per-
forming services for their employers, and that an object of such inducement was
to force or require these neutral employers to cease doing business with the primary
employer. In broad outline, General Counsel contends, this was the holding of the
Board in Otis Massey Company, Ltd., 109 NLRB 275, and, according to General
Counsel, that decision compels the finding of a violation here.
Teamsters Local 408 defends on the ground, inter alia, that at all times when
picketing was being conducted at Reichhold and Public Service, Wood Company's
field force was at work on those sites; that the duties of at least three of the four
employees represented by Local 408 would bring them upon those sites on occasion;
and that by the legend on its picket signs and by other means Teamsters Local 408
manifested that the strike and picketing were directed only at Wood Company and
Wood Company employees. Virtually identical defenses were urged before the
Board in the Otis Massey case in a similar context but the Board there rejected
these defenses and found that the picketing of the construction projects in that case
was conducted, at least in part, to force secondary employees to cease doing busi-
ness with the primary employer. In General Counsel's view, the same considera-
tions would be applicable here .9
Teamsters Local 408 also depends on the ground that its picketing at Reichhold
and Public Service was of quite short duration, that it voluntarily terminated that
picketing, and that, in any event, the picketing had very little effect on actual working
operations. Picketing, however, even when of short duration, is notoriously a potent
form of inducement (Printing Specialties and Paper Converters Union, Local 388,
AFL (Sealright Pacific Ltd.) v. LeBaron, 171 F. 2d 331, 334 (C.A. 9)), and it is
equally well settled that the existence of such inducement is not negated because it
does not succeed. N.L.R.B. v. Associated Musicians, Local 802, AFL (Gotham
Broadcasting Corp. (Station WINS) ), 226 F. 2d 900, 904-905 (C.A. 2), cert. denied
351 U.S. 962. Moreover, while it may be conceded, in fairness to Teamsters Local
408, that the conduct in which it engaged at Reichhold and Public Service was less
than flagrant both in its nature and effect, the issue presently posed for consideration
is not the gravity of the offense but merely its existence.
Upon that narrow issue the Board's decision in Otis Massey, considered together
with other authorities there cited, would appear to support a finding that Section
8(b) (4) (i) (B) of the Act has been violated. See also Washington Coca Cola Bot-
tling Works, Inc., 107 NLRB 299. Teamsters Local 408, however, cites and relies
upon the decision of the United States Court of Appeals for the Fifth Circuit in
N.L.R.B. v. General Drivers, Warehousemen and Helpers Local 968, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Otis
Massey Co.), 225 F. 2d 205, cert. denied 350 U.S. 914. In that case the court denied
enforcement to the Board's order in the Otis Massey case on the ground that in the
court's view substantial evidence did not support a finding that the union had "an
unlawful secondary object" 225 F. 2d, at 211. As the court read the Board's Otis
Massey decision, the Board placed undue emphasis on the fact that the "real situs"
of the labor dispute existed at a location other than that where the picketing in ques-
tion took place and inferred from that circumstance that such picketing had an
unlawful objective. (Id. at 209.)
Here, however, it is unnecessary to explore the precise reach of principles enun-
ciated in the Board's decision in Otis Massey or the extent to which the decision of
the Fifth Circuit may be regarded as a repudiation of those principles. See Dallas
General Drivers, Warehousemen and Helpers Local Union No. 745 (Dallas County
Construction Employers' Association, Inc.), 124 NLRB 696, 697, footnote 6. For
here, as in Dallas General Drivers, there is additional evidence in addition to the
9In its answer to the complaint, Teamsters Local 408 pleaded affirmatively (1) that
Its actions were lawful and protected and in the promotion of its lawful interest and
objectives as a labor organization, and (2 ) that Its actions were protected by the first
amendment to the Constitution. The first affirmative defense does no more than state
Teamsters Local 408's position on the legality of its conduct. The constitutional defense
was considered and rejected by the Supreme Court in I.B.E.W., Local 501, et al. v.
N.L.R.B. (Samuel Langer ), 341 U. S. 694, 705.
TEAMSTERS LOCAL UNION NO. 408, ETC. 125
mere existence of a separate situs which affords basis for a finding that the picketing
at Reichhold and Public Service had "an unlawful secondary object." At both sites
Teamsters Local 408 conducted its picketing at gates used by all the contractors and
used also for deliveries. In both instances the gates were located approximately 1,000
feet from where the Wood Company operations were going on. Nevertheless, Team-
sters Local 408, unlike the union in Otis Massey, made no request at Reichhold, and
apparently none at Public Service, to picket closer to the actual site of the operations
in which the primary employer was engaged, so as to avoid or at least abate, the
involvement of neutrals. The Board has held in Columbia-Southern Chemical Cor-
poration, 110 NLRB 206, at 208, that this consideration alone establishes an unlawful
secondary objective.
In addition, it appears that the pickets' practice of telling drivers who approached
the picket line that the strike and picket line were only against Wood Company and
that other operations were exempt was not always observed. Thus, as previously
found, Woodrow Farrell, a truckdriver for Union Trucking Co. with a delivery for an
electrical contractor on the Public Service site, received a negative or, at least a non-
commital reply when he asked whether any deliveries were being made. William
Miklovic, a Griffith Electric Supply truckdriver with a delivery for Public Service,
was told that he could go in if he wanted to, but that if he was ever on strike, the
same would be done to him. Such conduct on the part of the pickets belied the
picket signs which ostensibly limited the picketing to Wood Company, and revealed
that Teamsters Local 408's intention, at least in part, was to reach secondary em-
ployees and their employers. See Richfield Oil Corporation, 95 NLRB 1191, 1193.
Superior Derrick Corporation, 122 NLRB 52, 55-56. Teamster Local 408 cannot
evade responsibility for conduct of pickets whom it duly authorized to picket.
Finally, it merits note that Cusano called off the picket line at Public Service be-
cause he learned that operations at that project had just resumed after a prolonged
shutdown due to a prior and different strike. Cusano explained that "I couldn't see
any craft being on strike supporting us. The strike is only to the employees of Chas.
Wood . I couldn't see the men not working again." [Emphasis supplied.] 10
The quoted language suggests, at least, that had the prior stoppage not occurred,
Teamsters Local 408 at least anticipated, if it did not actively seek, a work stoppage
by all the crafts on the project.
In the light of these additional considerations, therefore, I find and conclude that
the actions of Teamsters Local 408 were motivated, at least in part, by an unlawful
objective, and that the picketing and related conduct at Reichhold and Public Service
was violative of Section 8(b)(4)(i)(B) of the Act. This same conduct necessarily
amounted also to restraint and coercion of the several contractors other than Wood
Company on the Reichhold and Public Service projects with an object of forcing or
requiring them to cease doing business with Wood Company in violation of Section
8(b) (4) (ii) (B) of the Act. Gilmore Construction Company, 127 NLRB 541.11
There remains for consideration only Wood Company's contention that the picket-
ing and related conduct at West Orange should be considered as additional ground
for finding a Section 8(b) (4) (i) and (ii) (B) violation. I have already noted that
General Counsel did not allege this conduct in his complaint as a basis for finding
such a violation nor did he rely upon it. Under these circumstances, it might well
be urged that evidence in this regard should not be deemed to be within the issues
to be resolved in this proceeding. However, disposition of this matter need not be
made on this procedural ground. The short of the matter is that the West Orange,
premises were the real situs of the labor dispute and that Teamsters Local 408 was
entitled to engage in picketing at this primary situs even though an incidental
effect of that picketing would be to interfere with secondary employees or persons
who sought to do business at that location. To be sure, this does not mean that
Teamsters Local 408 would be entitled to engage in mass picketing, violence, or
other unlawful conduct there. However, the Act itself and other relevant law pro-
vides adequate sanctions for such conduct and Section 8(b)(4), as such, has never
been deemed to be applicable in this regard. The Supreme Court has emphasized
the specificity with which Congress outlawed particular economic weapons and the
congressional scheme may not be ignored. N.L.R.B. v. Drivers, Chauffeurs and
Helpers Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Curtis Brothers), 362 U.S. 274; and see
10 At Relchhold, 'Cusano called off the picket line because he thought it would be
confusing.
u Alexander Warehouse A Sales Company, 128 NLRB 916, is plainly distinguishable.
There, unlike the instant case, no common situs was involved and picketing was con-
fined to premises utilized exclusively by the primary employer.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins.
Co.), 361 U.S. 477, 498-499.
Wood Company correctly argues that in Mclunkin Corporation, 128 NLRB 522,
the Board did consider the nature of the picketing at the primary situs and certain
other related conduct as part of the total pattern of conduct engaged in by the union.
But that was a special situation. As the Board found in that case, the union, con-
currently with its establishing a picket line at McJunkin, the primary situs, mailed
letters to carriers with whom it had "hot cargo" agreements, advising the recipients
that its members would refuse to handle goods, thus, in effect, creating an embargo.
Moreover, the union in that case confined its picketing efforts to but I of 10 entrances
to McJunkin's plant, that one being a trucking entrance not generally used by Mc-
Junkin's employees. Accordingly, the Board found that "the immediate principal
purpose" of the picketing at McJunkin was "to induce and encourage employees of
other employers not to make deliveries at McJunkin's plant.. " 12
None of these considerations are present in the instant case. So far as appears,
even taking into account the alleged misconduct of the pickets at West Orange (as to
which, as already noted, there are, if warranted, appropriate remedies), there is no
indication that anything occurred at West Orange except perhaps an overzealous
exercise of the right to engage in primary picketing. None of the conduct there
evinced, as did the conduct in Mclunkin, that the "immediate principal purpose" of
the picketing at the primary situs was to induce and encourage "employees of other
employers." Accordingly, I find that the doctrine of the Mclunkin case is inappli-
cable here.13
N. THE REMEDY
I have found that Teamsters Local 408 engaged in unlawful secondary activity at
the Reichhold and Public Service sites, thereby violating Section 8(b)(4)(i) and
(ii)(B) of the Act. By this conduct Teamsters Local 408, in order to further its
dispute with Wood Company, also adversely affected the interests of the several
contractors who were engaged at those sites in operations affecting commerce, even
though such contractors were neutrals to Teamsters Local 408's dispute with Wood
Company. The order here recommended is designed to protect both the Wood
Company and any such neutrals, as well as their employees, against a recurrence of
such unlawful pressure. On the other hand, the recommended order, because of the
limited nature of the violations found, is correspondingly circumscribed to encom-
pass only Teamsters Local 408's dispute vis-a-vis the Wood Company. Communica-
tions Workers of America, AFL-CIO and Local No. 4372, etc. (Ohio Consolidated
Tele. Co.) v. N.L.R.B., 362 U.S. 479.
CONCLUSIONS OF LAW
1. Chas. S. Wood & Co. is engaged in commerce within the meaning of the Act.
2. Teamsters Local 408, Respondent herein, is a labor organization within the
meaning of the Act.
"Even as to this holding, the Board was careful to add the caveat : "While we rely
On the nature of the primary picketing as evidence of the Respondent's overall objective,
we are not holding [that] such picketing, considered alone, was itself unlawful "
13 This finding renders it unnecessary to pass upon the incidents of the alleged mis-
conduct of the pickets at the West Orange premises Mention may be made, however, of
the most serious of those incidents , namely the fracas between Felix Oliviero and John
Komar on or about August 10 On the basis of all the evidence in that regard and upon
my appraisal of the demeanor of the witnesses who testified with respect thereto, I find
that the more credible version was given by John Komar and that Felix Oliviero assaulted
Komar. On the basis of like considerations , I do not credit Felix Oliviero's testimony
that he was threatened, on another occasion and at a different location, with "trouble" by
Amiano and I do credit Amiano's denial in that regard Finally, it should be noted that
the status of the Olivieros as neutrals in the dispute between Teamsters Local 408 and
Wood Company is not immune to challenge Although, as between Wood Company and
Colonial Motor Hauling, Inc., which the Olivieros owned and operated, there was no
financial nexus other than that which resulted from Wood Company's payments for truck-
ing services , it is undisputed that Wood Company retained the Olivieros after the strike
to do the trucking formerly done by its striking truckdrivers. To the extent, therefore,
that the Olivieros were retained to do "struck work," they took on the status of "allies"
of Wood Company and were equally vulnerable with Wood Company to primary picketing.
General Teamsters Local No 324, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (Truck Operators League of Oregon ), 122 NLRB
25, 26-27.
LOCAL NO. 5895 , UNITED STEELWORKERS OF AMERICA 127
3. Teamsters Local 408 has engaged in unfair labor practices violative of Section
8(b)(4)(i ) and (ii )(B) of the Act.
4. The foregoing unfair labor practices affect commerce within the meaning of the
Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board , and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify you that:
WE WILL NOT induce or encourage any individual employed by any person
engaged in commerce or in an industry affecting commerce , other than Chas. S.
Wood & Co., to engage in a strike or a refusal in the course of his employment
to perform any services , where an object thereof is forcing or requiring any
person to cease doing business with Chas. S. Wood & Co.
WE WILL NOT threaten , coerce , or restrain any person engaged in commerce
or in an industry affecting commerce , other than Chas. S. Wood & Co., where an
object thereof is forcing or requiring any person to cease doing business with
Chas. S. Wood & Co.
TEAMSTERS LOCAL UNION No. 408 , INTERNATIONAL
BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Local Union No . 5895, United Steelworkers of America, AFL-
CIO; United Steelworkers of America , AFL-CIO; John Ko-
walski, Staff Representative of United Steelworkers of America,
AFL-CIO; and Francis Brewster, President of Local Union
No. 5895, United Steelworkers of America , AFL-CIO and
Carrier Corporation
Local Union No. 5895, United Steelworkers of America, AFL-
CIO; United Steelworkers of America , AFL-CIO; John Ko-
walsk , Staff Representative of United Steelworkers of America,
AFL-CIO; and Francis Brewster, President of Local Union
No. 5895, United Steelworkers of America , AFL-CIO and
Carrier Corporation. Cases Nos. 3-CC-106 and 3-CB-439. July
13, 1961
DECISION AND ORDER
On September 29, 1960, Trial Examiner Thomas F. Maher issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Intermedi-
ate Report attached hereto. Thereafter, the Respondents filed excep-
tions to the Intermediate Report and a supporting brief. A brief was
also filed by the Charging Party.
132 NLRB No. 17.