Teamsters, Local Union No. 631, Etc.

National Labor Relations Board - Board Decisions

Jul 30, 1965

154 N.L.R.B. 67 (N.L.R.B. 1965)

TEAMSTERS, LOCAL UNION NO. 631, ETC. 67
Teamsters , Chauffeurs , Warehousemen & Helpers Local Union
No. 631 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and Reynolds Electrical
and Engineering Co., Inc.
Teamsters, Chauffeurs, Warehousemen & Helpers Local Union
No. 631, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America and Hill & Hill Truck
Line, Inc. and Reynolds Electrical and Engineering Co., Inc.;
Nevada Chapter, Associated General Contractors of America,
Inc.; Las Vegas Builders' Exchange ; and Southern Nevada
Home Builders Association , Inc., Parties to the Contract.
Cases Nos. 20-CC-4137 w?,20-CE-30. July 30, 1965
DECISION AND ORDER
On February 25, 1965, Trial Examiner Howard Myers issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision; the General Counsel filed cross-exceptions, a support-
ing brief, and an answering brief ; and the Charging Party filed an
answering brief to Respondent's exceptions and an answering brief to
the General Counsel's cross-exceptions.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the excep-
tions, cross-exceptions, and all briefs, and hereby adopts the findings,'
1 We correct certain mistatements of fact which do not affect the Trial Examiner 's ulti-
mate conclusions or our own On page 80, line 35 , of the Trial Examiner 's Decision, we
delete the date "October 30, 1963," and substitute therefor "November 20, 1963." Con-
trary to the Trial Examiner ' s statement , page 97, lines 38 and 39 , of the Trial Examiner's
Decision, the record indicates that some drivers continued to pay dues after joining the
Union. On page 98, line 2 , of the Trial Examiner ' s Decision , we delete the date
"January 20 ." On page 81 , line 30, of the Trial Examiner's Decision, we delete the
phrase "only 16" and substitute therefor "some 18" and we delete the number "16" in
the next sentence.
154 NLRB No. 6.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions,' and recommendations of the Trial Examiner to the extent
consistent herewith.
1. THE SECTION s (b) (4) (1 ) AND (ii ) ( B) VIOLATIONS
The Charging Party in Case No . 20-CC-437, hereinafter referred to
as Reynolds , is a member of the Nevada Chapter, Associated General
Contractors of America , Inc. (AGC ), and the Las Vegas Builders'
Exchange , and through such memberships is a party to their collective-
bargaining agreement with Respondent ( hereinafter referred to as the
AGC agreement ). Pursuant to the AGC agreement , Respondent
represents warehousemen , clerks , and other employees at buildings
and yards used by Reynolds at the Atomic Energy Conunission's
Nevada Test Site at Mercury, Nevada. Respondent and certain local
freight carriers in Las Vegas , Nevada, are also parties to the Western
States Area Master Freight Agreement . It does not appear that
Reynolds is signatory to the latter contract.
The Trial Examiner found , and we agree , that Respondent , through
inducement and other acts by its agents at. the Nevada Test Site, sought
to force or require Reynolds to cease doing business with certain
vendors or trucking companies employing nonunion drivers who were
making deliveries to Reynolds at that site, including , inter alia, deliv-
eries from outside the State of Nevada . The Trial Examiner further
found, and we agree, that by these and certain other acts Respondent
violated Section 8 (b) (4) (i ) and (ii ) ( B) of the Act.
In its exceptions Respondent, relying on Meat and highway Drivers,
Dockmen , Helpers and Miscellaneous Truck Terminal Employees,
Local Union No. 710 , Intl. Brotherhood of Teamsters , Chauffeurs,
TVarehousegnen and Helpers of America ( Wilson cC Co.) v. N.L.I?.B.,
335 F. 2d 709 ( C.A.D.C. ) [hereinafter called Local 710], contends that
its actions did not violate Section 8(b) (4) (B ) because, so it asserts,
they constituted lawful primary activity . Specifically , Respondent
argues that it was seeking to protect local delivery jobs, fairly claima-
ble within its overall territorial jurisdiction-and particularly in units
it represents under the Western States Agreement at Las Vegas-from
encroachment by truckers making deliveries from directly out of State.
We reject this contention . Respondent's reliance on Local 710,
supra, is misplaced . By arguing that its agents ' actions at the Reyn-
olds' site had the purpose of safeguarding work opportunities in
other units it represents elsewhere in its territorial jurisdiction,
Respondent in effect concedes that these activities were undertaken, not
to advance the interests of the Reynolds employees it represents, but
2 The Trial Examiner concluded , and we agree , that the evidence does not support
Respondent 's defense that its agents sought only to enforce rates the Davis -Bacon Act
provides for the work of making deliveries to the Nevada Test Site Accordingly, we find
It unnecessary to pass upon and do not adopt the Trial Examiner 's further conclusion
that the Davis -Bacon Act does not apply to such work.
TEAMSTERS, LOCAL UNION NO. 631, ETC. 69
rather with the objective of protecting the work of its members
generally. The court in Local 710 itself labeled such an objective as
secondary, and therefore unlawful (supra, at 716). And, even if
Respondent were entitled to preserve or increase work assignments in
those other units, questions we are not here called upon to decide, this
would be not justification for its unlawful secondary action to obtain
such assignment.3
H. TILE SECTION 8 (e) VIOLATION
Certain provisions of the AGC contract (denominated as article I,
sections D, E, and F) were relied on by Respondent's agents to justify
their efforts to require that trucks making deliveries to Reynolds at the
Nevada Test Site be driven by union drivers.4 Respondent contended
that these provisions are outside the reach of Section 8(e) of the Act
because their sole purpose was the preservation of unit work and
because the provisions were, in any event, exempted from that section
pursuant to the construction industry proviso of that section.
The Trial Examiner found, and we agree, that both of these conten-
tions lack merit. Sections D and E by their explicit terms, and section
F implicitly, permit the subcontracting of unit work to companies
observing all the terms of the instant contract which includes a clause
requiring recognition of the Union. Moreover, all three sections were
so interpreted by Respondent. Contracts which permit subcontract-
ing, but attempt to limit the choice of subcontractors to those which
recognize and have collective-bargaining agreements with a union,
have long been held to be violative of Section 8(e). E.g., District No.
9, International Association of Machinists, AFL-CIO (Greater St.
Louis Automotive Trimmers and Upholsterers Association, Inc.), 134
NLRB 1354, 1358, enfd. 315 F. 2d 33 (C.A.D.C.) ; Milk Drivers and
3 Local 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri Company),
137 NLRB 828, 831-832. Member Fanning who dissented in Venneri deems the case
inapposite.
4 These sections provided as follows
D That if the contractors, parties hereto, shall subcontract work as defined
herein, provision shall be made in such subcontract for the observance by said sub-
contractor of the terms of this agreement. A sub-contractor is defined as any person,
firm or corporation who agrees under contract with the General Contractor or his
subcontractor to perform on the job-site any part or portion of the work covered by
the contract, including the operation of equipment, performance of labor and the
furnishing and installation of materials
E That so far as it is within the control of the Contractor or his subcontractor
all materials, supplies and equipment used on the job shall be transported to or from
the site of the work by workmen covered by a collective bargaining agreement with
the signatory Union Nothing herein contained shall be construed to prohibit the
normal delivery of freight by railroad
F. That the contiactors and their subcontractors shall have freedom of choice
in the purchase of materials, supplies and equipment save and except that every
reasonable effort shall be made by the contractors and their subcontractors to refrain
from the use of materials, supplies or equipment which use will tend to cause any
discord or disturbance on the project.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dairy Employees, Local Union No. 537 (Sealtest Foods, A Division of
National Dairy Products Corporation), 147 NLRB 230.
As to Respondent's other contention that these provisions are within
Section 8(e)'s construction industry exemption, the Trial Examiner
found, and we agree, that the work of delivering materials, products,
and supplies to the Nevada Test Site is not construction work to be per-
formed at the construction site. Hence, contractual provisions which
seek to control the subcontracting of such work exceed the permissive
limitations of the instant exemption. International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
29.,1, (Island Dock Lumber, Inc.) 145 NLRB 484, 491-492. Accord-
ingly, to the extent that the foregoing provisions require, or are inter-
preted by Respondent as requiring, that Reynolds may only contract
such delivery work to firms employing Respondent's members or mem-
bers of a sister local, the provisions are proscribed by Section 8 (e) of
the Act.
THE REMEDY
Having found that Respondent has engaged in activities which vio-
lated Section 8(b) (4) (i) and (ii) (B) and 8(e) of the Act, we shall
order it to cease and desist therefrom, and take certain affirmative
action to effectuate the purposes of the Act.
In his brief, the General Counsel contends that a broad order is nec-
essary because of Respondent's expanding pattern of conduct violative
of the secondary boycott provisions of the Act. We find merit in this
contention and determine as appropriate an order requiring Respond-
ent to cease and desist from secondary activity against Reynolds, or
any other person, with the object of forcing Reynolds, or any other
person, to cease doing business with any primary employers, not lim-
ited to those vendors and carriers named in the Order, and further
requiring Respondent to cease and desist from secondary activity
against R. C. Johnson, or any other person, to force or require R. C.
Johnson, or any other person, to cease doing business with Reynolds,
or any other person. In entering this broad order, we rely, particu-
larly, on: (a) Respondent's admission that it seeks to protect its
territorial jurisdiction from incursion by any nonunion truckers mak-
ing deliveries within such jurisdiction, including deliveries from out of
State; (b) Respondent's repeated claims that its AGC contract estab-
lishes its right so to do; (c) the fact that several bargaining as-
sociations of employers are, signatory to that contract; and (d)
Respondent's demonstrated proclivity to violate the secondary boy-
cott provisions of the Act to enforce such claimed rights.'
'International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Local 294 (Island Dock Lumber, Inc), supra, at 493-494; Milk Dhivers and
Dairy Employees Local Union No. 584, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America ( Old Dutch Farms , Inc.), 146 NLRB 509,
510, 517, enfd . 341 F. 2d 29 ( C.A. 2), and cases cited therein.
TEAMSTERS, LOCAL UNION NO. 631, ETC. 71
Upon the basis of the foregoing and the entire record in this case
the Board makes the following:
CONCLUSIONS OF LAW
1. Reynolds Electrical and Engineering Co., Inc., and Hill & Hill
Truck Line, Inc., are each engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Reynolds Electrical and Engineering Co., Inc., is engaged in
commerce or in an industry affecting commerce within the meaning of
Section 8(b) (4) of the Act.6
3. By enforcing, giving effect to, and thereby entering into article
I, sections D, E, and F of the Labor Agreement between itself and the
Nevada Chapter, Associated General Contractors of America, Inc.,
Las Vegas Builders' Exchange, and Southern Nevada Home Builders
Association, Inc.-to the extent that Respondent's interpretation and
application of these sections have been found unlawful herein-
Respondent has engaged in unfair labor practices within the meaning
of Section 8(e) of the Act.
4. By inducing and encouraging individuals employed by Reynolds
to engage in strikes or refusals, in the course of their employment, to
handle their employer's goods or products, or to refuse to off-load the
trucks of nonunion drivers, or to perform services, and by threatening,
coercing, or restraining Reynolds, in each case with an object of forc-
ing Reynolds to cease doing business with Aztec Equipment Co., J. H.
Rose Trucking Lines, C & H Transportation Co., Asbury Transporta-
tion Co., Rain For Rent, B. F. Walker Transportation Co., Dealers
Transit Co., Inc., Hycalog, Inc., Jeffries Eaves Trucking, Interna-
tional Transport Co., Jim Warren Trucking, Hill & Hill Truck Line,
Inc., Desert Coca Cola Bottling Co., and Byron Jackson Inc., Respond-
ent has engaged in unfair labor practices within the meaning of Sec-
tion 8(b) (4) (i) and (ii) (B) of the Act.
I In his cross-exceptions, the General Counsel also requested that we find that R C
Johnson and Associates, the other secondary employer, and each of the primary em-
ployers-the vendors and carriers involved herein-are engaged in commerce within the
meaning of the Act. While the record indicates that virtually all these vendors or car-
riers made deliveries to Reynolds from out of State, it is not clear that every one of
them is engaged in commerce to a degree sufficient to satisfy our applicable jurisdictional
standard In any event, we find it unnecessary to make the finding requested by the
General Counsel. Our jurisdiction in a case of this type is clear where there is a pattern
of conduct involving one or more secondary employers, if the combination of the business
activities of the primary and secondary employers is sufficient to satisfy our jurisdictional
requirements. In the present case this combination is more than sufficient to satisfy our
standards because the activities of Reynolds alone do so Teamsters, Chauffeurs, Ware-
housemen & Helpers , Local Union No. 631, etc. (Reynolds Electrical and Engineering
Co., Inc.), 150 NLRB 504; Sheet Metal Workers International Association, Local Union
No. 299, et al. (S. M. Kisner ( deceased ), et al. , d/b/a S M. Kisner and Sons), 131 NLRB
1196, Commission House Drivers, Helpers, and Employees Local No. 400, at at. (Euclid
Foods, Incorporated, d/b/a, Bondi 's Mother Hubbard Market), 118 NLRB 130; Madison
Building if Construction Trades Council, et at (Wallace Hildebrant, et al, d/b/a H if K
Lathing Co., et al. ), 134 NLRB 517.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. By inducing and encouraging individuals employed by R. C.
Johnson to engage in strikes or refusals, in the course of their employ-
ment, to transport or deliver certain housing units or to perform serv-
ices, and by threatening, coercing, or restraining R. C. Johnson, in each
case with an object of forcing R. C. Johnson to cease doing business
with Reynolds in order to force Reynolds to cease doing business with
G. T. Wolfe Mobile Homes, Inc., and Morgan Drive Away, the Re-
spondent has engaged in unfair labor practices within the meaning of
Section 8(b) (4) (i) and (ii) (B) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that
Respondent, Teamsters, Chauffeurs, Warehousemen & Helpers Local
Union No. 631, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, its officers, agents, and repre-
sentatives, shall :
1. Cease and desist from :
(a) Giving effect to, enforcing, or otherwise entering into article I,
sections D, E, and F of the Labor Agreement between it and the Nevada
Chapter, Associated General Contractors of America, Inc., Las Vegas
Builders' Exchange, and Southern Nevada Home Builders Association,
Inc., effective June 1, 1962, to June 1, 1965, to the extent found unlaw-
ful herein.
(b) Giving effect to, enforcing, or otherwise entering into any other
contract or agreement. express or implied, and unlawful under Section
8(e) of the Act, whereby any employer-member of any of the associa-
tions named in (a), above, or any other employer, ceases or refrains,
or agrees to cease or refrain, from handling, using, selling, transport-
ing, or otherwise dealing in any of the products of any other employer,
or from doing business with any other person.
(c) Engaging in, or inducing or encouraging any individual
employed by Reynolds Electrical and Engineering Co., Inc., or any
other person engaged in commerce or in an industry affecting com-
merce, to engage in, a strike or refusal in the course of his employment
to use, manufacture, process, transport, or otherwise handle or work
on any goods, articles, materials, or commodities, or to perform any
services, or threatening, coercing, or restraining Reynolds Electrical
and Engineering Co., Inc., or any other person engaged in commerce
or in an industry affecting commerce, where, in either case, an object
thereof is to force or require Reynolds Electrical and Engineering Co.,
Inc., or any other person, to cease doing business with Aztec Equipment
Co., J. H. Rose Trucking Lines, C & H Transportation Co., Asbury
TEAMSTERS , LOCAL UNION NO. 631, ETC. 73
Transportation Co., Rain For Rent, B. F. Walker Transportation Co.,
Dealers Transit Co., Hycalog, Inc., Jeffries Eaves Trucking, Interna-
tional Transport Co., Jim Warren Trucking, Hill & Hill Truck Line,
Inc., Desert Coca Cola Bottling Co., Byron Jackson Inc., or with any
other person with whom Respondent has a dispute over the operation
of trucks making deliveries within Respondent's territorial jurisdic-
tion in claimed violation of article I of its current Labor Agreement
herein involved, or of any similar provision in any subsequent
agreement.
(d) Engaging in, or inducing or encouraging any individual
employed by R. C. Johnson & Associates, or any other person engaged
in commerce or in an industry affecting commerce, to engage in, a strike
or refusal in the course of his employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, mate-
rials, or commodities or to perform any services, or threatening, coerc-
ing, or restraining R. C. Johnson & Associates, or any other person
engaged in commerce or in an industry affecting commerce, where, in
either case, an object thereof is to force or require R. C. Johnson &
Associates, or any other person, to cease doing business with Reynolds
Electrical and Engineering Co., Inc., or any other person, in order to
force Reynolds Electrical and Engineering Co., Inc., or any other per-
son, to cease doing business with G. T. Wolfe Mobile Homes, Inc., Mor-
gan Drive Away, or any other person with whom Respondent has a
dispute over the operations of trucks making deliveries within
Respondent's territorial jurisdiction in claimed violation of article I
of its current Labor Agreement herein mvolvecl, or of any sunilar pro-
vision in any subsequent agreement.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post in conspicuous places in Respondent's business offices, meet-
ing halls, and other places where notices to members are customarily
posted, copies of the attached notice marked "Appendix.'' 7 Copies
of said notice, to be furnished by the Regional Director for Region 20,
shall, after being duly signed by the authorized representative of
Respondent, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive clays thereafter. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Furnish said Regional Director signed copies of the aforesaid
notice for posting by Reynolds and R. C. Johnson & Associates, if will-
ing, at places where they customarily post notices to their respective
employees.
IIn the event that this Order be enforced by a decree of a United States Court of
Appeals, the words "a Decree 'of the United States Court of Appeals, Enforcing an Order"
shall be substituted for the words "a Decision and Order."
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 20, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
APPENDIX
NOTICE TO ALL OUR MEMBERS AND ALL EDIPLOYEES OF REYNOLDS ELEC-
TRICAL AND ENGINEERING CO., INC. AND R. C. JOHNSON & ASSOCIATES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT give effect to, enforce, or otherwise enter into arti-
cle I, sections D, E, and F of the Labor Agreement between this
Union and the Nevada Chapter, Associated General Contractors
of America, Inc., Las Vegas Builders' Exchange, and Southern
Nevada Home Builders Association, Inc., effective June 1, 1962,
to June 1, 1965, to the extent found unlawful in the Board's Deci-
sion and Order.
WE WILL NOT give effect to, enforce, or otherwise enter into any
other contract or agreement, express or implied, and unlawful
under Section 8(e) of the Act, whereby any employer-member
of any of the associations named above, or any other employer,
ceases or refrains, or agrees to cease or refrain, from handling,
using, selling, transporting, or otherwise dealing in any of the
products of any other employer, or from doing business with any
other person.
WWTE WILL NOT engage in, or induce or encourage any individual
employed by Reynolds Electrical and Engineering Co., Inc., or
any other person engaged in commerce or in an industry affecting
commerce, to engage in, a strike or refusal in the course of his
employment to use, manufacture, process, transport, or otherwise
handle or work on any goods, articles, materials, or commodities
or to perform any services, or threaten, coerce, or restrain Reyn-
olds Electrical ,and Engineering Co., Inc., or any other person
engaged in commerce or in an industry affecting commerce, where,
in either case, an object thereof is to force or require Reynolds
Electrical and Engineering Co., Inc., or any other person, to cease
doing business with Aztec Equipment Co., J. H. Rose Trucking
Lines, C & H Transportation Co., Asbury Transportation Co.,
Rain For Rent, B. F. Walker Transportation Co., Dealers Transit
Co., Inc., Hycalog, Inc., Jeffries Eaves Trucking, International
Transport Co., Jim Warren Trucking, Hill & Hill Trucking Line,
Inc., Desert Coca Cola Bottling Co., Byron Jackson, Inc., or with
TEAMSTERS, LOCAL UNION NO. 631, ETC. 75
any other person with whom we have a dispute over the operation
of trucks making deliveries within our territorial jurisdiction in
claimed violation of our aforementioned Labor Agreement.
WE WILL NOT induce or encourage any individual employed by
R. C. Johnson & Associates, or any other person engaged in com-
merce or in an industry affecting commerce, to engage in a strike
or refusal in the course of his employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, arti-
cles, materials, or commodities or to perform any services, or
threaten, coerce, or restrain R. C. Johnson & Associates, or any
other person engaged in commerce or in an industry affecting com-
merce, where, in either case, an object thereof is to force or require
R. C. Johnson & Associates, or any other person, to cease doing
business with Reynolds Electrical and Engineering Co., Inc., or
any other person, in order to force Reynolds Electrical and Engi-
neering Co., Inc., or any other person, to cease doing business with
G. T. Wolfe Mobile Homes, Inc., Morgan Drive Away, or any
other person with whom we have a dispute over the operation of
trucks making deliveries within our territorial jurisdiction in
claimed violation of our aforementioned Labor Agreement.
TEAMSTERS, CIAUFFEURS, WAREHOUSEMEN & HELPERS
LOCAL UNION No. 631, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREIIOUSEMEN,
& HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If members or employees have any question concerning this notice
or compliance with its provisions, they may communicate directly with
the Board's Regional Office, 450 Golden Gate Avenue, Box 36047, San
Francisco, California, Telephone No. 556-3197.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
On April 21 , 1964 , Reynolds Electrical and Engineering Co., Inc ., herein called
Reynolds, filed a charge in Case No . 20-CC-437, alleging that Teamsters , Chauffeurs,
Warehousemen & Helpers Local Union No. 631 , International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers of America , herein called the
Union or Respondent , on certain stated dates between October 30, 1963, and April 14,
1964, induced , instructed , and encouraged Reynolds' employees not to perform
services for their employer , and coerced and restrained Reynolds, the purpose in each
case being to force and require Reynolds to cease doing business with certain named
employers.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 12, 1964. Hill & Hill Truck Line, Inc, herein called Hill & Hill, filed a
charge in Case No. 20-CE-30, alleging that Respondent and Reynolds, for a period
of 6 months immediately preceding May 12, 1964, had entered into, maintained,
and given effect to a certain collective-bargaining agreement whereby Reynolds ceases
or refrains from, or agrees to cease doing business with, Hill & Hill and other per-
sons in violation of Section 8(e) of the National Labor Relations Act, as amended
from time to time, 61 Stat. 136, herein called the Act.
Under date of June 30, 1964, the Regional Director for Region 20 of the National
Labor Relations Board, herein called the Board, issued an order, pursuant to Section
102 33 of the Board's Rules and Regulations, Series 8, as amended, consolidating for
the purpose of hearing, the above-numbered cases
On June 30, 1964, the General Counsel i of the Board, through the aforementioned
Regional Director, issued a consolidated complaint against Respondent alleging that
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Sections 8(b)(4)(i) and (ii)(B), 8(e), and 2(6) and (7) of the Act.
Copies of the charges, the order consolidating the above-numbered cases, the con-
solidated complaint, and notice of hearing were duly served upon Respondent,
Nevada Chapter, Associated General Contractois of America, Inc., herein called
AGC, Las Vegas Builders' Exchange, herein called Builders' Exchange, and Southern
Nevada Home Buildeis Association, Inc., herein called Home Builders, the last-named
three being parties to the aforesaid collective-bargaining agreement Copies of the
order of consolidation, the consolidated complaint, and notice of hearing were duly
served upon Reynolds and Hill & Hill. In addition, a copy of the charge in Case No.
20-CE-30 was duly served upon Reynolds
Specifically, the consolidated complaint alleges that (I) Reynolds at all times ma-
terial herein has been, and now is, an employer-member of the AGC and the Builders'
Exchange, and through such memberships is a party to a collective-bargaining
agreement with Respondent entitled "Labor Agreement Between Nevada Chapter,
Associated General Contractors of America, Inc , Las Vegas Builders' Exchange,
Southern Nevada Home Builders Association. Inc , and Teamsters Local No. 631
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America," herein called the Labor Agreement; (2) the Labor
Agreement, by its terms, is effective from June 1, 1962, to June 1. 1965; (3) since
on or about October 30, 1963, upon arrival at the Nevada Test Site, herein called
NTS, of trucks transporting materials, supplies, and equipment to Reynolds, Respond-
ent, through its agents, informed nonunion drivers of such trucks, as well as officials
of Reynolds, that Respondent has directed Reynolds' employees not to handle such
materials, supplies, or equipment unless (a) the driver joins Respondent, or (b) the
carrier employs a truckdriver dispatched by Respondent from its hiring hall in Las
Vegas, Nevada, and pays him a day's wages, plus subsistence, or (c) the carrier
transfers the load to a trucking company having a collective-bargaining agreement
with Respondent for delivery to Reynolds; (4) on 21 separate occasions involving
various suppliers and their over-the-road carriers. Respondent followed the practice
above described and appealed to its members and other Reynolds' employees to
refuse to handle materials and supplies or to perform work, and also informed
Reynolds that certain of the materials delivered to Reynolds by such suppliers and
carriers had been placed on Respondent's "unfair list"; (5) an object of the above-
described conduct has been to force or require Reynolds to cease doing business with
persons employing truckdrivers not members of Respondent or its affiliates; (6) by
such acts, Respondent has induced or encouraged individuals employed by Reynolds
to engage in strikes or refusals in the course of their employment to use, transport,
or otherwise handle or work on materials, or to perform services, and otherwise has
threatened, coerced, or restrained Reynolds: (7) by such conduct Respondent has
maintained and given effect to the Labor Agreement and to certain unlawful clauses
contained therein; (8) by such unlawful contract clauses Respondent and Reynolds
are agreeing to cease and refrain from handling, using, transporting, or otherwise
dealing in products of other employers, or agreeing to cease doing business with other
persons; and (9) the conduct above described constitutes unfair labor practices affect-
ing commerce within the meaning of Sections 8(b) (4) (i) and (ii) (B) and 8(e) of
the Act
The consolidated complaint also alleges that on December 16. 1963. Respondent
picketed a shipment of dormitory trailers sold to Reynolds by Wolfe Trailer Sales
Company and being delivered to Reynolds at NTS by nonunion truckdrivers employed
i This term specifically includes counsel for the Ceneral Counsel appearing at the heaiing
TEAMSTERS , LOCAL UNION NO. 631, ETC. 77
by Morgan Drive Away, and that such picketers induced or encouraged members of
Respondent employed by R. C Johnson & Associates, a contractor engaged by Reyn-
olds, to refuse to handle or perform work in connection with such trailers.
On July 13, 1964, Respondent duly filed an answer denying the commission of the
unfair labor practices alleged. In addition, the said answer pleads affirmatively that
on all of the occasions mentioned in the consolidated complaint Respondent has
demanded that Reynolds comply with the provisions of the Labor Agreement, includ-
ing the clauses alleged in the consolidated complaint to be unlawful, and has
demanded that tiuckdriver employees of suppliers and carriers delivering and dis-
tributing materials at NTS be paid the prevailing rate of pay for such classifications
of employees as established by the Labor Agreement and the Davis-Bacon Act pre-
vailing wage determinations for the area. Respondent's answer further averred-
(1) That the acts of Respondent complained of were primary, internally
oriented, and had as their object the protection of job rights and standards of
bargaining unit personnel
(2) That the work of distributing by truck and off-loading materials, supplies
and equipment consigned to Reynolds at various places on NTS is the "subcon-
tracting of work to be done at the site of the construction" within the meaning
of the construction industry proviso to Section 8(e).
Pursuant to due notice, a hearing was held at Las Vegas, Nevada, from August 4
through 14, 1964, before Trial Examiner Howard Myers The General Counsel,
Respondent, and Reynolds were iepresented by counsel and participated in the hear-
ing 2 Full and complete opportunity was afforded the parties to be heard, to examine
and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue
orally on the record at the conclusion of the taking of the evidence, and to file briefs
on or before September 18, 1964.3
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE EMPLOYERS
Reynolds, a Texas corporation with offices and places of business located in Texas,
New Mexico, Colorado, Arizona, and Nevada, is engaged in, and at all times mate-
rial has been engaged in, electrical construction engineering work, and is a prime
contractor at NTS for the U S Atomic Energy Commission, herein called AEC,
and supplies maintenance, operational, and support facilities and construction services
at NTS for AEC.
During the year immediately preceding the issuance the complaint herein,
Reynolds purchased and received at NTS materials, supplies, and equipment valued
far in excess of $50,000 directly from places and points located outside the State of
Nevada During the same period, Reynolds furnished services to AEC valued far
in excess of $100,000 at NTS, which services have a substantial impact upon the
national defense.
Hill & Hill, a Texas corporation, has its principal offices and place of business at
Houston, Texas, where it is engaged in the business of transporting freight In the
course and conduct of its business operations, Hill & Hill annually receives gross
revenue in excess of $50,000 for transporting freight valued in excess of $50,000 from
the State of Texas to points located in various other States of the United States
At all times material, the vendors and interstate carriers named in paragraph VIII
of the consolidated complaint, transported to Reynolds at NTS materials and sup-
plies valued far in excess of $50,000 from places and points located outside the State
of Nevada.
2 Although duly served with copies of the charges, order of consolidation, consolidated
complaint, and notice of heaiing, neither the Builders' Exchange nor the Home Builders
entered an appearance at the hearing to defend the sections of the Labor Agreement under
attack. AGC appeared by counsel who, after making a brief statement on the record
shortly after the opening of the hearing. left the hearing room and did not thereafter
further participate in the hearing or defend the sections of the Labor Agreement under
attack
3 At the request of counsel, the time to file briefs was extended to November 23, 1964
The General Counsel, Respondent, and Reynolds filed briefs which have been carefully
considered
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find, in line with established Board authority, that Reynolds, Hill & Hill, and
most, of if not all, the employers named in paragraph VIII of the consolidated com-
plaint are engaged in, and during all times material have been engaged in, a business
affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that
their respective business operations meet the standards fixed by the Board for the
assertion of jurisdiction.4
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization admitting to membership employees of Reyn-
olds, Hill & Hill, and other employers.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
Reynolds is a general and prime support contractor for the Atomic Energy Com-
mission at NTS, which is located at Mercury, Nevada, a distance of about 67 miles
from Las Vegas, Nevada.
Reynolds performs drilling, tunneling , construction work, and various support
activities for the AEC and other contractors to the AEC at NTS. The test site in
question covers some 1,300 square miles and is divided into various areas.
Mercury, Nevada, is at the entrance to NTS and is the administrative area where
various facilities are located for purposes such as security, storage of supplies and
equipment, feeding and housing, mail, and similar purposes. No construction or
testing work is performed at Mercury other than occasional construction of a ware-
house or dormitory, but such work is undertaken in what are sometimes called the
"forward areas."
There are five divisions in the Reynolds' operation, including construction, health
and safety, fiscal, engineering and maintenance, and logistics. Involved in this case
is the logistics division which includes the following departments: supply, mainte-
nance and service, feeding and housing, and printing.
The function of the maintenance and service department is fueling and maintain-
ing vehicles and equipment. There are some 800 employees in this department,
including some 300 employees represented by Respondent. The feeding and housing
department covers the feeding and housing of personnel employed at NTS. There
are some 450 employees in this department, of whom some 11 are represented by
Respondent. The printing department is a class A Government printing shop with
about 18 employees, none of whom is represented by Respondent.
The supply department furnishes supplies for Reynolds, the AEC, and the other
contractors, and handles the storage of supplies and equipment other than vehicles
and related equipment. The supply department, through its procurement section,
procures the materials under purchase orders and the rental section arranges for the
rental of equipment. The traffic section handles the routing of materials which are
purchased or rented to Reynolds at NTS.
The supply department has various warehouses and storage yards at Mercury and
in other areas. There are some 300 employees in the supply department, of whom
some 125 are represented by Respondent.
At Mercury there are some seven warehouses-40 by 100 feet Butler-type build-
ings. There are also smaller buildings including a toolcrib and various yards.
Another warehouse at Mercury is the warehouse for the feeding facility, an equip-
ment parts warehouse and yard, and a scrap salvage yard.
Another location used for storage is in area 6 of the test site at the well 3 yard
which is used primarily for storage and distribution of materials used in connection
with the drilling operation. This is approximately 28 miles from Mercury. Another
storage area is the motor parts warehouse in area 3, approximately 3 miles from the
well 3 yard. A further area used for storage is the area 12 campsite which has two
d Of the Interstate carriers and vendors named in paragraph VIII of the consolidated
complaint, the Board has previously asserted jurisdiction over Dealers Transport Com-
pany, Inc, 27 NLRB 792, and Byron-Jackson Co, 618 NLRB 747. The Board also has
previously taken jurisdiction over Reynolds Electrical & Engineering Company, Inc, 133
NLRB 113, over Hill & Hill Truck Line, Inc., 120 NLRB 101, and over Local 691, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America,
etc. (Morgan Drive-Away, Inc ), 121 NLRB 1039, a trucking concern mentioned in para-
graph X of the complaint Also see Teamsters, Chauffeurs, Warehousemen & Helpers,
Local Union No. 631, etc. (Reynolds Electrical and Engineering Co , Inc.), 150 NLRB 504.
TEAMSTERS, LOCAL UNION NO. 631, ETC. 79
warehouses consisting of two Butler-type buildings-40 by 100 feet. Cable and
mining supplies in support of the tunnel department are stored here. The distance
to the area 12 campsite from Mercury is approximately 45 miles and approximately
15 to 16 miles from the motor parts warehouse in area 3. Employees represented
by Respondent are employed in these various areas.
Materials used at NTS are secured from points located all over the United States,
and from 75 to 80 percent of them are secured directly from points located outside
the State of Nevada. For the 12-month period, from June 1963 through May 1964,
materials valued at $33 million were issued by the supply department, and in excess
of $1 million worth of materials are received annually at NTS directly from outside
the State of Nevada.
Numerous carriers are used to effect the delivery of the materials to NTS and
there may be some 3,000 trucks delivering materials directly from out of State on an
annual basis. Reynolds does not use its own trucks for the delivery of these out-of-
State purchases of materials except in rare instances.
Much of the material is purchased, and there are some 22,000 purchase orders in
a year's time. The material may be purchased as a stock item to be used as needed
and kept on hand as a recurring item, or it may be ordered as a special order which
constitutes less than 1 percent of the material received. Certain items purchased are
capital items which have a longer life expectancy. Some equipment, such as drill
rigs, are rented. Most of the material involved in the instant case is used in the drill-
ing operation, as distinguished from construction or tunneling.
The procurement division of the supply department prepares the invitations for
bids and notices of awards. Many of the purchases of materials referred to in the
consolidated complaint require prior AEC approval. On orders of over 20,000
pounds the procurement office requests bids both f.o.b. destination and/or f.o.b.
origin. On the invitation to bid there is no indication of any direction or desire by
Reynolds as to the routing to be used. In determining whether to make the award
on the basis of f.o.b. origin or f.o.b. destination, Reynolds evaluates the vendor's f.o.b.
destination against his f.o.b. origin bid, adding the estimated traffic costs for delivery
to NTS. Carriers are selected on an f.o.b. origin award on the basis of cost, con-
venience, and availability of equipment. The purchase order when issued will con-
tain the f o b. point and may specify not only f.o.b. destination but also f.o b zone 1,
2, or 3. The carriers that are selected have Interstate Commerce Commission cer-
tificates to permit them to make the deliveries.
For purposes of administrative convenience and freight charges, a further designa-
tion of areas has been made as zones 1, 2, and 3. Zone 1 is within 1 mile of the
Mercury post office; zone 2 within 30 miles; and zone 3 over 40 miles.
The incidents in the instant proceeding involve shipments with an f.o b. of point
of origin or zone 1 or 2. Some of the material may be delivered directly to the point
of use, but this is not involved in any of the deliveries in question. Occasionally
the f.o.b. destination point is changed from zone 1 to zone 2 or to a particular loca-
tion upon arrival at the test site depending upon the nature of the materials or equip-
ment and the need for them. Much of the material is brought directly from out of
State in trucks to NTS. Some carriers will transship to a local carrier at a terminal
in Las Vegas.
When the material arrives at NTS it is usually "tallied in" and received at the
Mercury warehouses, usually 4A warehouse. It may be unloaded there or it may
be directed on to another warehouse or storage area in zone 2.
Warehouse clerks represented by Respondent receive the material at the Mercury
warehouses and prepare a "tally-in" sheet which is then incorporated into a mate-
rial receiving report. It may also be weighed by clerks who are members of Respond-
ent. If the material is unloaded at Mercury, it is unloaded by warehousemen and
forklift operators who are members of Respondent. If it is unloaded at the ware-
house in the Mercury complex, it is thereafter handled by union employees in storing
and processing prior to requisition.
If the material has a zone 2 or other destination, normally after being tallied-in,
it will proceed to the destination in the same truck in which received with the same
driver, where it will be unloaded by other union warehousemen and forklift oper-
ators at the storage yard or other warehouses. The material will normally remain
in the other storage areas, such as the well 3 yard, until requisitioned for use. Employ-
ees represented by the Operating Engineers will on occasion unload equipment in
some storage areas.
so DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The material and equipment is maintained and stored in the warehouses and
storage areas until needed. When needed, it is requisitioned by the operating depart-
ments and the requisition is processed by employees represented by Respondent. It
is normally transported to the point of use by employees represented by Respondent.
The materials and equipment are merely stored in the warehouses and storage areas
Fabrication, assembly, mixing, and other processing is performed at other locations,
normally at or near the point of use
At all times material herein, William F. "Bill" Carter, secretary-treasurer, Roy
MacDonald, president, Forrest T. "Joe" Carter, trustee, Dale Thompson, business
agent, Merlyn D. "Merle" Gile, Reed Swafford, Arthur Rudy, John Ebarb, and Frank
Seppe, stewards, have been representatives of Respondent, acting on its behalf, and
agents of Respondent within the meaning of Section 2(13) of the Act.
The work jurisdiction of Respondent, as defined by it, includes Clark, Lincoln,
Nye, and part of Esmeralda Counties in the State of Nevada. Respondent has no
such work jurisdiction outside the State of Nevada. Thompson and Joe Carter are
assigned as business agents to Reynolds' NTS project.
B. The pei tinent facts 5
Respondent has no dispute with the interstate carriers or vendors employing union
drivers. Reynolds receives shipments of materials at NTS from Wells Cargo, Las
Vegas Freightways, and Ringsby, which carriers have offices outside the State of
Nevada and terminals and docks at Las Vegas, Nevada. These interstate carriers are
parties, together with Respondent and various sister locals of Respondent, to the
Master Freight Agreement, and employ drivers who are members of local affiliates
of the International Teamsters Union. Although these carriers make deliveries not
only to NTS zone 1, but also to zones 2 and 3, there have been no problems with
respect to receiving and off-loading their trucks by warehouse employees of Reynolds
represented by Respondent In addition, Reynolds receives shipments of materials
at NTS from outside the State of Nevada delivered by such carriers as IML, PIE,
Belyea, Navajo, Garrett, Converse, and Milne. These latter-named carriers are also
parties to the Master Freight Agreement and employ drivers who are members of
one or another Teamsters local. Although, on occasions, these carriers may make
deliveries to zones 2 and 3 as well as zone 1, there have been no problems with
respect to receiving and off-loading their trucks by warehouse employees of Reynolds
represented by Respondent
At all times since October 30, 1963, Respondent has been engaged in a program
and campaign to organize the drivers for interstate carriers and vendors who arrive
at NTS transporting materials destined for Reynolds, and to require that all such
deliveries be made by members of, or employees represented by, Respondent or by any
other Teamsters local. It has been the uniform practice for Union Steward Gile, and
other stewards whose work Gile coordinates, acting pursuant to instructions from
Dale Thompson, the Union's business agent, and/or William Carter. the Union's
secretary-treasurer, to question the drivers of trucks carrying merchandise for Reyn-
olds, to determine whether or not they were union members. If the driver is unable
to furnish evidence that he is a member of Respondent or some other Teamsters
local, Gile and other stewards of Respondent employed by Reynolds would refuse
to receive or off-load the material unless or until the driver, who is unable to offer
proof that he is a union driver, complies with one of three conditions- (1) the driver
join Respondent and pay its initiation fee and dues; (2) the driver or his company
employ a union member from Respondent's Las Vegas hiring hall to accompany
the truck while it was being off-loaded; or (3) the driver return the load to Las
Tn the light of my observation of the conduct and deportment at the hearing of all
the persons who testified herein, and after a very careful scrutiny of the entire record,
all of which has been carefully read and parts of which have been reread and rechecked
several times, and being mindful of the contentions of the parties with respect to the
credibility problems here involved, of the fact that in many instances testimony was given
regarding events which took place months prior to the opening of the hearing, and of
the fact that very strong feelings have been generated by the circumstances of this case,
coupled with the fact that it would unnecessarily protract this Decision to summarize
all the testimony or to spell out fully the confusion and inconsistencies therein, the fol-
lowing is a composite picture of all the factual issues involved and the conclusions based
thereon. The parties may be assured that in reaching all resolutions, findings, and con-
clusions herein, the record as a whole has been carefully considered; relevant cases have
been studied ; and each contention advanced has been weighed, even though not specifically
discussed.
TEAMSTERS , LOCAL UNION NO. 631, ETC. 81
Vegas for delivery by an interstate carrier which is a party with Respondent to the
Master Freight Agreement covering its drivers. If any nonunion, over-the-road
driver fails to comply with any of the three conditions he is told, as a fourth alterna-
tive, to return the load to the shipper.
In the event the driver rejected the first three alternatives, Gile and other stewards
would then take the over-the-road driver to A. J. Blaylock or Carl Lavender, the
superintendent and assistant superintendent, respectively, of the general stores sec-
tion, or to both, and inform Blaylock and/or Lavender that the truck was "tied up,"
that the driver had been presented with Respondent's four alternatives. Or, in the
presence of Lavender or Blaylock, or both, the Respondent's steward would follow
the practice of again presenting to the driver the three conditions with which he
must comply before warehouse personnel of Reynolds, represented by Respondent,
would receive or off-load the material. In so doing, Gile and other stewards would
inform Lavender and Blaylock that if Reynolds used supervisors to receive and off-
load the material, it would be a violation of article I, sections D, E, and F of the
Labor Agreement.
As a result of Respondent's program and policy, in the majority of cases prior
to March 1964, the nonunion, over-the-road driver would ask for a man to be dis-
patched from Respondent's Las Vegas hiring hall to accompany him. On many
occasions the nonunion driver would agree to become a member of Respondent.
When the driver paid to have a man dispatched from Respondent's hiring hall or
made formal application to join Respondent, no further problem developed with
respect to receiving and off-loading the material.
The consolidated complaint alleged that on 21 separate stated occasions between
October 30, 1963, and May 6, 1964, Respondent, in furtherance of its campaign to
require that all drivers employed by interstate carriers and vendors who arrived at
NTS transporting materials destined for Reynolds, would insist that the driver be a
union member, or be a member of a sister local, or, if the driver be nonunion, that
he immediately apply for union membership, or hire a union member to make the
delivery. Proof, however, was offered with respect to only 16 of said incidents.
These 16 incidents will be discussed seriatim.
On November 20, 1963, a backhoe loader which Reynolds had rented from the
Aztec Equipment Company, of Phoenix, Arizona, arrived at zone 1 in a truck driven
by Harold Bachus Gile, after Bachus was unable to prove that he was a union driver,
brought Bachus into Lavender's office. There, after Gile had informed Lavender
that Bachus was nonunion, he advised Bachus that he had to do one of the following:
(1) join Respondent and pay its initiation fee and dues, (2) he or his employer had
to hire a union member from Respondent's Las Vegas hiring hall to accompany the
truck while it was being off-loaded, (3) return the truck to Las Vegas for delivery to
NTS by an interstate carrier which is a party with Respondent to the Master Freight
Agreement, or (4) return the load to the shipper.°
Bachus telephoned his employer and then, in Lavender's presence, informed Gile
that he would hire a union member from Respondent's hiring hall. Bachus and Gile
then left Lavender's office.
J. D. Murphy, a union member, was thereupon dispatched from Respondent's
hiring hall and the rented backhoe was off-loaded without further incident.
On November 26 a certain drill pipe arrived at NTS to be delivered to zone 2.
This was a special order which Reynolds bought from Oilwell Supply Co., and it was
shipped from Oklahoma City, Oklahoma, on a truck of J. H. Rose and driven by a
nonunion driver Upon the arrival of said truck, the driver thereof, Steiver, was
brought into Blaylock's office by Gile and there, after Gile had informed Blaylock
and Lavender that Steiver was nonunion, Gile explained to Steiver "the four alterna-
tives he might consider." Upon hearing them, Steiver telephoned his dispatcher and
advised him that he was encountering some "union problems." After he had finished
speaking to his dispatcher, Steiver informed Gile, Blaylock, and Lavender that he
"had been instructed to take the load to Las Vegas and turn it over to Wheeler Truck-
ing Company" for delivery to NTS.
The following day, November 27, the Wheeler Trucking Company, which was at
all times material a signatory to a collective-bargaining contract with Respondent
covering the Wheeler drivers, delivered the aforesaid drill pipe at NTS and it was
off-loaded without any further incident. 7
6 These four items are referred to herein as the "four alternatives."
7 It is significant to note that neither Gile nor any Respondent representative ever
stated to Lavender, or to any nonunion driver in Lavender's presence, that the nonunion
drivers of the interstate carriers involved were not being paid the prevailing rates of pay
or that Respondent was "trying to preserve unit work."
206-446-66-vol. 164-7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime prior to December 1963, Reynolds had contracted with G. T. Wolfe
Mobile Homes, a Corona , California , firm, for the purchase of some $500 , 000 worth
of trailers to be used for housing certain Reynolds ' NTS personnel . Some of these
trailers were delivered to Reynolds on or about December 3.
Upon receiving word that the aforementioned trailers had arrived at NTS and had
been driven to the location designated by Reynolds , Respondent's Secretary-Treasurer
William Carter complained to Reynolds ' NTS Labor Relations Administrator D. L.
Goodwin that the trailers had been hauled from California to NTS by nonunion
drivers in violation of sections D, E, and F of article I of the Labor Agreement.
Goodwin replied that Reynolds exercised no control over whom the vendors employed
to deliver merchandise to Reynolds at NTS, adding that all Reynolds could do about
the situation was to inform the vendors that there might be some labor problems if
nonunion drivers were used by them
Marcel Verbrugghen , assistant manager of Reynolds ' NTS supply department , testi-
fied, and I find, that on or about December 8, he had a conversation near his office
with Dale Thompson , Respondent 's business agent, wherein the following transpired:
A. "Mack ," he [Thompson ] said, "we've had some trailers come in here and
spotted outside and they were hauled through the gates without a union driver."
He said, "Now , this we can ' t put up with , and we can 't have our men going down
and receiving those trailers out there nor do we want them through the gate with
a non-union driver" and he would give me three days to get this matter straight-
ened out before the other trailers came in, and that was about the extent of the
conversation.
Q. Did he say what he would do after the three days?
A. Well, he said he wasn't going to stand still for any more of this business,
and he wanted the matter straightened out befoie any of these other trailers
came in , as best as I can remember.
During the morning of December 16, Verbrugghen was informed by Ray Saunders,
Reynolds' NTS assistant project manager of logistics , .that another shipment of Wolfe
trailers had arrived and suggested that Verbrugghen "take it from there " Verbrug-
ghen got into his pickup and went to where the trailers had been parked . There,
Verbrugghen was met by Thompson . Lavender , and Davis , the terminal manager of
Morgan Drive -Away, the carrier who hauled the trailers from Corona , California, to
NTS.
Regarding what transpired on the occasion referred to above, Verbrugghen credibly
testified as follows:
Well, I talked to Mr Davis in the presence of Mr Thompson and explained to
him that any matter in regard to having a non-union driver or such was no-that
REECO took no position in that regard , and as far as we were concerned, he
could drop his trailers outside the gate.
Q. Did you tell him where to drop them?
A I did , because I got a call from AEC stating that they were about to do
some construction work on the area there and that they would like the trailers
moved immediately from there to some other place , and I asked Mr. Davis to
take his trailers back and probably three or four or five hundred yards back from
the gate and park back there. He asked me if I would sign the statement that
it was okay for him to make this drop there , and I did. He made the statement
up to the effect that he could drop these outside the gate, and I signed them for
him.
Q. Did he drop them outside the gate?
A. 400 yards back from the gate, yes.
Q. This is outside the gate which enters into the Mercury Test Site?
A. Yes, sir.
Q. Did Mr. Thompson have any discussion with Mr Davis in your presence
that you heard?
A. Well, Mr Thompson and Mr. Davis walked about 10 feet and this was
building 111 , the personnel building , at the gate there , and this is where we were
talking , and I did hear Mr Thompson say to Mr. Davis , "What about this driver
that 's coming out ?" Mr. Davis stated , "Well, my contract is to drop them outside
the gate here " "Why should I pay a driver? " And Mr Thompson said , "Well,
how about $ 10.00?" and that 's what I heard I heard that statement made.
At approximately 2.30 that afternoon , December 16, Respondent placed a picket
line around the parked trailers. The pickets carried placards reading "Unfair to
Teamsters Local 631."
TEAMSTERS, LOCAL UNION NO. 631, ETC. 83
In order to settle the dispute raised by Respondent, as described in the above-quoted
testimony of Verbrugghen, about the hauling of the trailers from California to NTS by
nonunion drivers, Reynolds employed the trucking firm, R. C. Johnson & Associates,
of Las Vegas, whose diivers were represented by Respondent, to haul the trailers
onto the test site. Johnson's drivers arrived at NTS while the aforesaid picketing was
in progress, but they would not haul the trailers until the pickets were removed. The
pickets were removed about 4 p.m.
About 9 a.m on December 16, a truck belonging to C & H Transportation of
Houston, Texas, loaded with drillcasmg, arrived at NTS driven by Armstrong, a non-
union driver. Gile brought Armstrong into Blaylock's office and there stated to
Blaylock, in the presence of Lavender, "Mr. Armstrong was a non-union driver," and
then Gile proceeded to explain to Armstrong "the four alternatives which he might
consider regarding his union status." Thereupon, to quote from Lavender's credible
testimony, "Armstrong said that he didn't particularly care about joining [Respond-
ent] or hiring a driver from Las Vegas" because "his truck was leased to C & H, and
he felt that by delivering the material to [NTS] he had fulfilled his part of the con-
tract." While Armstrong and Gile were in Blaylock's office discussing the matter in
question, Armstrong received a telephone call from his dispatcher. During the course
of this telephone call, Armstrong told his dispatcher that he was encountering union
problems and then sought instructions. At the conclusion of the aforementioned tele-
phone call, Armstrong told Gile, in the presence of Blaylock and Lavender, that he
had been instructed to hire a driver from Respondent's Las Vegas hiring hall. There-
upon, Gile stated that he would telephone the hiring hall and request that a driver be
sent to the test site.
Norman Scott, a Respondent member, was dispatched to NTS and was paid by
Armstrong, or by C & H, $4.24 per hour plus $7.50 subsistence. Armstrong's truck
was then off-loaded without any further incident.
About 10 45 a.m. on December 19, $7,000 worth of detergent, a stock item,
arrived at NTS from a Brea, California. firm. The truck belonged to Asbury Trans-
portation Company and it was driven from Brea to NTS by Brooks, a nonunion driver.
Shortly after the arrival of the aforementioned truck, Brooks was escorted into
Blaylock's office. There Gile, after informing Blaylock and Lavender that Brooks
was a nonunion driver, proceeded to explain to Brooks the four alternatives After
the conclusion of the aforesaid explanation by Gile, Blaylock stated to Brooks, to
again quote from Lavender's credible testimony, "This was a problem between
[Brooks] and the local Teamsters Union and that [Reynolds] was not involved and it
would be [Brooks'] decision as to what he might do " Brooks then telephoned his
dispatcher and informed him, in the presence of Gile, Blaylock, and Lavender, regard-
ing the situation he was encountering in having his truck off-loaded and then asked
for instructions. At the conclusion of the aforesaid telephone conversation, Brooks
stated to Gile, in the presence of Lavender and Blaylock, that he would hire a driver
"from the local union hall." Gile and Brooks then left Blaylock's office. At Gile's
request, Respondent immediately dispatched Straughter Bowman to NTS, Brooks'
truck was off-loaded without further incident and Bowman was paid by either Brooks
or by Asbury Transportation at the rate of $4.24 per hour plus $7.50 subsistence.
About 1 p.m on December 27, a two-truck shipment of waterpipe arrived at NTS
from Rain For Rent , a concern located at Bakersfield, California , in Rain For Rent
trucks. The driver of one of the trucks was Richmond, who was a nonunion member.
The driver of the other truck belonged to a sister local of Respondent.
Shortly after the Rain For Rent trucks arrived at NTS, Dale Thompson, Respond-
ent's business agent, spoke to the drivers thereof. Upon learning that Richmond was
nonunion, Thompson escorted Richmond in to Blaylock, but allowed the other driver
to proceed to the zone 1, where the pipe was off-loaded.
Upon arriving in Blaylock's office, Thompson, accompanied by Richmond,
announced to Blaylock, in Lavender's presence, that Richmond "was a non-union
driver and [I have] tied up the truck " Thompson thereupon explained to Richmond
the four alternatives available to him. Blaylock then informed Richmond that "this
problem" was between Richmond and Respondent, and that Reynolds took no posi-
tion in the matter. Richmond then stated that he would hire a driver from Respond-
ent s Las Vegas hiring hall to accompany him to the off-loading spot. Thompson then
called the hiring hall. Alfred Waters was dispatched to NTS, Richmond's truck was
off-loaded without any further incident, and Waters was paid by Richmond, or by his
employer, at the rate of $4.24 per hour plus $7.50 subsistence.
On January 9, 1964, five B. F. Walker trucks arrived at NTS with a consignment
of drill rigs for Reynolds.
Shortly after the trucks arrived at NTS, Reed Swafford , a union steward, accom-
panied by the four nonunion B. F. Walker truckdrivers, went into Blaylock's office.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding what took place there, Lavender, who, with Blaylock, was present while
Swafford and the four drivers were in Blaylock's office, credibly testified that the
following ensued on this occasion:
Mr. Swafford stated that the drivers were non-union , and that they had tied the
trucks up, and Mr. Blaylock asked him what he meant by tied up, and he said he
had received instructions from the receiving foreman not to receive the material
until the union had been satisfied. He also said if the drivers were willing to
join the Teamsters Union, that would be one way, and Mr Blaylock explained
to them this was up to them or their company what decision they would make,
and the guys all said they would join the union.
Swafford and the four drivers then left Blaylock's office; the five trucks were driven to
their designated area for off-loading and were unloaded without any further incident.
About 8.30 a m. on January 27, Gile brought Pomeroy, driver of a Dealers Transit
truck which had arrived that morning with certain material for Respondent to be used
at the tracking station of NTS, into Blaylock's office The truck hauled this material
from Fort Bliss, Texas There Gile, after telling Blaylock and Lavender that
Pomeroy was nonunion and that he already had explained to Pomeroy "the four
alternatives which he might consider," Blaylock then told Pomeroy that this was a
problem between Pomeroy and Respondent and that Gile was representing the Union
in this controversy and not Reynolds. Pomeroy, after telephoning his dispatcher,
made application for membership in Respondent and paid the requisite initiation fee
and dues. The material on Pomeroy's truck was then received and off-loaded without
further incident.
About 9:30 on the morning of February 9, a B. F. Walker truck arrived at Reyn-
olds' NTS area 3 mudplant with a load of high foam detergent, which Reynolds uses
in connection with certain drilling operations This detergent was purchased by
Reynolds from Atlas Mud Company and was hauled by the Walker truck from Okla-
homa City, Oklahoma, to NTS by Bill Kinsey.8
Shortly after the aforementioned truck -arrived at the mudplant, Blaylock called
Louis Strawn , a Reynolds' warehouse supervisor and under Blaylock's supervision,
into his office and informed Strawn that a nonunion driver was in area 3 and was
apparently having trouble getting his truck off-loaded. Blaylock then instructed
Strawn to have Dale Gunnels, another Reynolds' warehouse supervisor, accompany
him to the mudplant and to explain to those there "the company's position on matters
of this type."
When Strawn and Gunnels arrived at the mudplant about 10.15 that morning, they
observed Kinsey sitting in his truck, another Walker truckdriver, and standing nearby
Carl Davis, a mudplant foreman and a member of the Operating Engineers
Union. Kinsey's truck was not being off-loaded, for Davis and his crew were await-
ing the arrival of Dale Thompson in order to ascertain from Thompson whether the
Operating Engineers members should perform their usual task and off-load Kinsey's
truck. Thompson arrived on the scene, accompanied by Union Shop Steward Frank
Seppe, about an hour after Strawn and Gunnels had arrived. Regarding what
transpired with Kinsey and his truck after Thompson and Seppe had arrived, Strawn
credibly testified as follows: 9
Q. (By Mr. MAGOR.) 10 Now, when Mr. Dale Thompson arrived at about
11.30, was Mr. Carl Davis present?
A. Yes, sir.
Q. Mr. Kinsley was present?
A. Yes, sir.
Q. And the other man who was on the truck?
A Yes, sir.
Q. You were present?
A. Yes, sir.
Q. Was Mr. Gunnels present?
A. Yes, sir.
Q. Was anybody else present?
A. No, I believe that's all.
Q. Will you tell us, sir , what was said on that occasion and who said it9
A. Mr. Thompson approached the truckdriver, Mr. Kinsley, and said that he
had understood that he was a non-union truckdriver and proceeded to give him
8 Not to be confused with Bob W. Kinsey, another B F. Walker truckdriver
9 Gunnels ' version of what transpired on that occasion is in substantial accord with
Strawn's.
11 Counsel for the General Counsel.
TEAMSTERS , LOCAL UNION NO. 631, ETC. 85
these four alternatives which were to join the Teamsters Union, hire a man out
of the hall, return his load to Las Vegas and turn it over to a commercial carrier
for delivery here or return the load to the shipper.
Q. What was said by Mr. Kinsley?
A. Mr. Kinsley stated that he had been on the test site 12 or 14 hours trying
to get unloaded, and he did agree to pay for the man to be sent from the hall,
but he stated that he didn't have enough money on him. He called his other
friend over, the truckdriver who was with him on the truck, and between the two
of them they pooled together $41 and some odd cents and gave it to Mr.
Thompson.
Q. What was said then?
A. Mr. Kinsley wanted to know if he had to wait for a man to be sent all the
way from the hall. He said he would like to get unloaded. Mr. Thompson said,
"As soon as you give me that money, I will instruct Mr. Carl Davis to unload
you right away."
Q. You say that Mr. Kinsley handed the money to Mr. Thompson?
A He did, and Mr. Thompson gave him a receipt.
Q. What instructions then did Mr. Dale Thompson give, if any, to Mr. Davis?
A. He directed Carl Davis to unload the truck.
Q. This was after he received the money?
A. Yes, sir.
Q. Did Mr. Carl Davis then unload the truck and people working under his
supervision?
A. Yes, sir.
Q. What happened to Mr. Thompson? Did he remain or what?
A. He left right away.
William H. Rose credibly testified that he was at Respondent's hiring hall on Febru-
ary 10; about 11 a.m. he was dispatched to NTS; he arrived at NTS about 1 p.m.;
shortly after he had arrived at NTS, he met Thompson, who paid him $41 and some
odd cents "for reporting" to NTS; he did no work for B. F. Walker nor did he off-load
any truck that day because, to quote from Rose's credible testimony, "Evidently they
had been in too big a rush to wait on me to get out there and [Thompson] escorted
him 11 on into the forward area to do his unloading and then gave me the money for
it." 12 The record also clearly establishes that Kinsey made application for member-
ship in Respondent and paid the requisite dues and initiation fee on February 10,
1964.13
About 9 a.m. on March 6, a Hycalog truck arrived at NTS to deliver a shipment
of core barrels to Reynolds. Shortly after the arrival of the truck, Gile brought
Simons, Hycalog's over-the-road truckdriver, and Nesbett, Hycalog's sales represent-
ative who accompanied Simons to NTS, into Lavender's office. Verbrugghen was
present. Gile stated that Simons was a nonunion driver and that he had advised
Simons and Nesbett of Respondent's four alternatives. Lavender then explained to
Nesbett and Simons that Reynolds did not require that Simons be, or become, a
union member in order to make a delivery to Reynolds at NTS. Thereupon, Laven-
der instructed Gile to receive the material. Gile refused on the ground that Simons
was nonunion and that in refusing to receive the material he was acting in accordance
with Respondent's instructions.
Shortly thereafter, Thompson entered Lavender's office. Lavender asked Thomp-
son to direct Gile to receive the core barrels. Thompson not only declined to carry
out Lavender's request but, instead, directed Gile not to touch the Hycalog material.
Thompson stated that his instructions to Gile not to receive the core barrels were
based upon the fact that Simons was nonunion and hence his instructions were in
accordance with sections E and F of article I of the Labor Agreement
Immediately after Thompson's above-said pronouncement, Lavender called Lou
Daniels, Reynolds' NTS foreman of receiving and shipping and a member of Re-
spondent, into his office. When Daniels arrived, Lavender, in the presence of
Verbrugghen, Simons, Nesbett, Thompson, and Gile, instructed Daniels to receive the
aforementioned Hycalog shipment. Thompson immediately informed Daniels that the
Hycalog truckdriver was nonunion and then instructed him not to receive the mer-
chandise. Lavender thereupon issued a specific work assignment to Daniels to receive
the core barrels. Daniels declined to accept the work assignment, stating, "I can't do
anything. I [have been] instructed not to" receive the merchandise.
"Apparently meaning Kinsey.
12 Normally, it would have taken between 30 to 45 minutes to off-load Kinsey's truck.
is On his membership application card, Kinsey listed his home address as being 18 W.
6th, Edmond, Oklahoma, and B F Walker as being his employer.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon Daniels' refusal to receive the aforesaid merchandise, Lavender asked Simons
to drive his truck to the dock to be off-loaded. Thompson then remarked that if the
truck was off-loaded, Lavender, himself, would have to do the job. As Thompson
was leaving Lavender's office, he said, to quote from Lavender's credible testimony,
"[Reynolds] had better be prepared, that when he left he would probably take his
people with him." 14
Rather than cause any labor controversy at NTS, Nesbett asked Simons to drive
his truck back to Las Vegas and to turn the load over to Ringsby or to Wells Cargo
for redelivery to NTS. Both Ringsby's and Wells Cargo's truckdrivers are members
of Respondent or some other Teamsters local. The Hycalog truck then left NTS
and Simons did as Nesbett requested.
On March 9, 1964, the material from the Hycalog truck was delivered by Ringsby.
On that date, there was no problem with respect to receiving and off-loading the
material by warehouse employees, all of whom are Respondent members. The mate-
rial was received and inspected by E. B. Norman Scott, warehouse clerk and a mem-
ber of Respondent.15
On April 3, a Jeffries Eaves truck arrived at NTS to deliver a shipment of tubing
which was shipped by Colorado Fuel & Iron Company of Pueblo, Colorado, to
Reynolds.
About 9:30 that morning, April 3, Gile brought Hunter, the driver of the aforesaid
truck, into Lavender's office. Strawn was present. After Gile had announced that
Hunter was a nonunion driver, he explained to Hunter Respondent's four alterna-
tives. Thereupon Lavender advised Hunter that it was not a requirement of Reyn-
olds that he be, or become, a member of Respondent in order to make delivery to
Reynolds at NTS. Lavender then asked Gile whether he would receive the tubing
and send it to the designated area for off-loading. When Gile replied in the negative,
Lavender gave Gile a work assignment to receive the material. Gile refused the
assignment and gave as his reason for the refusal sections E and F of article I of the
Labor Agreement.
Lavender then called Daniels into the meeting. After Lavender had informed
Daniels that Hunter was a nonunion driver, he issued a work assignment to Daniels
to receive the merchandise on Hunter's truck. Daniels refused the assignment on the
ground that he had been instructed by Respondent's business agents and stewards
not to receive any material delivered by a nonunion driver.
Gile then informed Hunter that if he were to hire a driver from Respondent's Las
Vegas hiring hall he could have the material off-loaded. Hunter replied if he hired
a union driver it would take his profit away for hauling the tubing, because "Salt
Lake Transfer takes a percentage of my profit, and if I were to give you money there
would be nothing left for me."
At Lavender's request Hunter and Gile left Lavender's office. Lavender then tele-
phoned Ray Saunders, assistant project manager of logistics, and explained to Saun-
ders the aforementioned Hunter-Gile situation. Saunders then came to Lavender's
office and instructed the latter to telephone Respondent's Las Vegas office. Lavender
did as instructed and spoke to Forrest Carter,16 a Respondent trustee. Regarding
what was said during this telephone conversation, Lavender credibly testified as
follows: 17
A. I told Mr. Carter we had a non-union driver, and he was not interested
in joining the union or hiring a driver from the union hall, and I asked him if
he would instruct his steward, Mr. Gile, to receive the material.
14 Thompson's version of what transpired on the above referred-to occasion is substan-
tially in accord with Lavender's.
15 Thompson was asked by Respondent's counsel whether at the above-mentioned meeting
he made the remark "This is the parting shot." To this question, Thompson replied "Not
to my knowledge. I may have made it. As far as I was concerned, the situation had
been resolved and there was no reason for making such a statement. If I did make it,
it was prior to the time the situation [sic]." By "the situation [being] resolved" Thompson
testified he meant "when the Hycalog personnel stated that they would send the load
back to town and have it redelivered by another carrier." Thompson also testified that,
as a business agent, he had no authority to call a strike.
19 Also referred to in the record as Joe Carter. Saunders, with Carter's knowledge,
was 'on an extension telephone throughout this telephone conversation
17 Forrest Carter, a brother of William, Respondent's secretary-treasurer, did not testify
TEAMSTERS, LOCAL UNION NO. 631, ETC. 87
Mr Carter replied that he had a letter from Reynolds which said that in case
of a deadlock between a non-union driver and a Teamster steward that Mr. Bill
Carter and David Crockett 18 were to resolve the problems.
And then I asked Mr. Carter if it was his union's instructions to his stewards
and business agents that they were not to receive or off-load any material deliv-
ered by non-union drivers, and he replied, "This is right," that they would not
receive or off-load.
At the conclusion of the foregoing Lavender-Carter telephone conversation, Saun-
ders instructed Lavender to have Hunter drive his truck to area 3 to be off-loaded
by Reynolds' forklift operators, who are represented by the Operating Engineers
Union. Lavender, in turn, instructed Gunnels to accompany the truck to area 3, to
tally the material, and to sign the driver's bill of lading after the material had been
off-loaded 19
Shortly after the truck had left for area 3, Gile came into Lavender's office and
asked Lavender where the truck had been driven. Lavender replied that he had given
instructions for the truck to proceed to area 3 to be off-loaded
Despite Lavender's warning to Gile that if he went to area 3 to watch the off-loading
of the Hunter truck he would be leaving his work area without permission, he, never-
theless, proceeded to area 3, maintaining that he had been instructed by William
Carter to follow the Hunter truck as a Respondent representative.
At area 3, Gile solicited and received the support of Carr, assistant foreman of
forklift operators, not to off-load the truck. This arrangement was agreed to by Carr
after Gile had informed him of an understanding which existed between Respondent
and the Operating Engineers to refuse to off-load trucks driven by nonunion drivers.
Frank Schell, business agent for the Operating Engineers, in Gile's presence, told
Gunnels and "Slim" Watson, Reynolds' drilling superintendent who had come to
area 3 while the Hunter truck was there, that the members of the Operating Engineers
would not off-load the truck, or handle, or touch the material when it was on the
ground. Further, Schell said that if supervisors of Reynolds decided to use or handle
the material he could "damn well shut down the whole test site." About this time,
Thompson arrived on the scene and again proposed Respondent' s four alternatives
to Hunter. Again Hunter rejected the Respondent's demands . As a consequence of
Respondent 's solicitation of the Operating Engineers to join in refusing to off-load
the truck, Hunter was obliged to off- load it without any aid.
Although Hunter arrived at NTS about 9:30 a.m., his truck was not off-loaded
until about 3:30 p.m.
On April 8, an International Transport truck arrived at NTS to deliver to Reynolds
a Grizzly feeder which Reynolds had rented from Allis Chalmers of West Allis,
Wisconsin.
About 12:30 that afternoon, April 8, Gile came into Lavender's office with Rupert,
the driver of the International truck, and told Lavender, in the presence of Strawn
and Rupert, that he was unable to determine whether Rupert was a Teamsters mem-
ber; that he had asked Rupert several questions regarding his union status and Rupert
had refused to answer them; and that Rupert had also refused the suggestion to tele-
phone his dispatcher to obtain instructions. Gile then stated that he was unable to
determine whether or not Rupert was a union driver. Lavender said he was not
interested in Rupert's union status, adding that all he wanted to know was whether
Gile would receive the feeder Rupert was attempting to deliver. When Gile replied
that he was not refusing to receive the feeder, all he wanted to know was whether
Rupert was a union driver, Gile then turned to Rupert and advised him of Respond-
ent's four alternatives. When Rupert made no comment , or showed any interest in
Gile's remarks about the alternatives, Lavender told Rupert that Reynolds did not
require him to be, or become, a union member in order to make deliveries to Reyn-
olds at NTS.
About 12:40 that afternoon, April 8, Lavender called Daniels into his office and,
in the presence of Strawn, Gile, and Rupert, gave Daniels Rupert's freight and pack-
ing bills, together with instructions to have Rupert's truck processed. Before Daniels
could make any comment, Gile remarked that Lavender was violating the Labor
Agreement by directing Daniels to handle the merchandise of Rupert's truck and
hence he (Gile) "was tying up the truck because the driver was non-union ." Laven-
11 Reynolds' NTS project manager.
19This work is normally performed by employees who are members of the Operating
Engineers Union.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der then asked Daniels if he was refusing to process Rupert's truck and Daniels
replied that he was, in accordance with sections E and F of article I of the Labor
Agreement.
About 3:30 that afternoon, W. O. DeWees, Reynolds' then NTS supply manager,
instructed Lavender to have Rupert's truck sent to the motor pool area to be off-
loaded by the Operating Engineers.
Rupert drove the truck to the motor pool, arriving there about 4 p.m. About the
time the truck arrived at the motor pool there were present besides Rupert, DeWees,
Lavender, D. B. Snodgrass, Reynolds' NTS maintenance operations supervisor, Clark
Lawson, Reynolds' NTS manager of equipment maintenance department, Steve Rex-
road, Reynolds' NTS master mechanic and supervisor of generator assignment and
generator repairs,20 and Sylvester Presser, Reynolds' NTS swing shift inspector and a
member of the Operating Engineers Union.
Shortly after Rupert's truck arrived at the motor pool, Gile requested Presser not
to have the truck off-loaded by the Operating Engineers who usually would have done
that job. When Lawson, Snodgrass, and Rexroad arrived at the motor pool, Gile
immediately told Lawson that "he had instructed Mr. Presser to refuse to off-load
the equipment on behalf of Teamsters Local 631." When Lawson asked Presser if
he would off-load the truck, Presser said that he would have to consult with his
steward.
Presser, accompanied by Gile, Lawson, and Snodgrass, went into a nearby trailer,
where Presser presumably telephoned his steward, James Fox. Within about 5 min-
utes of the conclusion of Presser's telephone call, Fox arrived at the motor pool and
was informed by Gile, in the presence of Presser, Lawson, Snodgrass, and others,
that he had requested Presser to refuse to off-load the equipment and he then
requested Fox also to refuse to do so. Fox replied that he would have to contact
his union hall.
Lawson invited Fox to go into the trailer to make his telephone call. Fox, accom-
panied by Lawson, Snodgrass, and Gile, presumably called the Operating Engineers'
hall. When Fox had completed his telephone call, Lawson asked him to whom he
spoke. Fox replied that he had spoken to Bill Walsh 21 and that Walsh had instructed
him not to off-load Rupert's truck. Thereupon, Lawson instructed Snodgrass to off-
load the truck, which Snodgrass, in Presser's presence, did.
Under normal circumstances, Rupert's truck would have been off-loaded in 5 or
10 minutes; as it was, Rupert and his truck were at the test site from about 12:30 p.m.
until about 4:45 p.m. that day.
On April 9, a Dealers Transit truck arrived at NTS with an antenna group from
Pueblo, Colorado, consigned to Reynolds.
About 3 p.m. that day, April 9, Lawson instructed Snodgrass to go with Frank
Kernan, an inspection supervisor and a Reynolds' NTS salaried employee, to proceed
to the test site's upper yard and have the Dealers Transit truck off-loaded. When
Snodgrass and Kernan arrived where the truck was parked, they were met by Gile and
Richard Chnst, a Reynolds' NTS inspection foreman and a member of the Operating
Engineers Union. Shortly thereafter the group was joined by Lou Strawn.
After Gile had requested Christ, on behalf of Respondent, to refuse to off-load the
antenna group, Snodgrass asked Christ to have one of his men off-load the equip-
ment. Christ replied, to quote from Snodgrass' credible testimony, "He couldn't do
that, on the basis of Mr. Gile's request." After Christ stated that he could not have
the truck off-loaded, Snodgrass suggested that Chnst contact his steward. Snodgrass,
Gile, and Christ then went into a nearby trailer where Christ made a telephone call
About 20 minutes after the conclusion of the telephone call, referred to immedi-
ately above, Fox arrived Gile immediately requested him to refuse to have the
truck off-loaded. Fox replied that he would have to call his union hall in Las Vegas.
Accompanied by Lawson,22 Snodgrass, Christ, and Gile, Fox made a telephone call.
At the conclusion thereof, Fox announced that he had spoken to Walsh, and that his
instructions were, "The same as yesterday. We are not to touch the material."
The Dealers Transit truck was off-loaded by Snodgrass, with the assistance of its
driver and Lawson.
Normally it would have taken Christ's crew only about 10 minutes to off-load the
truck, whereas the truck and its driver were at the test site for about 13/4 hours.
20 Snodgrass , Lawson, and Rexroad are, and on April 8 were, salaried employees.
21 Business Manager of the Operating Engineers Local 12 of the Southern Nevada
District.
22 Lawson arrived shortly after Fox had joined the group
TEAMSTERS, LOCAL UNION NO. 631, ETC. 89
On April 10, a Jim Warren truck arrived at NTS with a load of lumber from Silva
Brothers of Eugene, Oregon, consigned to Reynolds
About 1 30 p.m., Gile brought Martin Utter, the Warren truckdriver, into Laven-
der's office and, in the presence of Reed Swafford, another Respondent steward,
Daniels, and Strawn, Gile announced that Utter was nonunion. Gile then stated that
he had to leave for town, and that Swafford would represent Respondent. However,
before leaving the meeting, Gile stated that he had already informed Utter of
Respondent's four alternatives.
When Lavender asked Swafford whether he was refusing to accept the material on
Utter's truck because Utter was nonunion, Swafford iephed that he was, and that
Reynolds was violating sections E and F of article I of the Labor Agreement by
receiving the delivery. Lavender informed Utter that it was not a requirement of
Reynolds that Utter be, or become, a member of the Union in order to make deliveries
to Reynolds at NTS Utter then replied that he was not interested in joining Respond-
ent or hiring a driver.
After the above had taken place, Lavender gave Daniels a work assignment to
receive the lumber on Utter's truck. Daniels declined the assignment, stating that he
had been instructed by his steward not to receive any truck in violation of the Labor
Agreement Lavender then handed the work assignment to Swafford who, too,
declined to accept it, adding that he was acting pursuant to orders of Thompson and
Joe Carter.
Saunders then arrived at the aforementioned meeting After being briefed by
Lavender as to what had transpired before his arrival, he and Lavender left the meet-
ing to confer with DeWees and other Reynolds officials. As a result of his conferences
with the aforesaid officers, Saunders telephoned Respondent's headquarters After
being informed that neither Thompson, Bill Carter, nor Joe Carter were at the head-
quarters , Saunders was connected with MacDonald , Respondent's president Regard-
ing this telephone call 23 Saunders credibly testified as follows: 24
I advised Mr. MacDonald and Mr. Eisinger that I had been informed by Mr
Lavender that there was a truck loaded with plywood and that the driver had
been unable-they had been unable to resolve the issue whereby the driver would
hire a union driver or the driver would join the union and we were unable to
get the plywood unloaded and, as Mr. Lavender further advised that he made a
work assignment to Mr. Lou Daniels , a teamster warehouse foreman , to unload
the trucks , and Mr. Lou Daniels had refused the assignment , and that Mr.
Lavender had further discussed this with Mr. Merle Gile, the teamster steward
in the warehouse at Mercury who had stated that he was not to accept the work
assignment . I advised Mr. MacDonald and Mr. Eisinger that this had been some
time and we had to get the material unloaded and inquired if this was the union's
instruction to the steward. Mr. Eisinger stated that the union had instructed the
steward not to accept the work assignment in connection with material that was
being delivered on a truck driven by a non-union driver.
Q. What, if anything, did you state to Mr. MacDonald and Mr. Eisinger in
that conversation9
A. I advised him-it seemed as if they were at an impasse. The teamster
warehouse employees would not unload it and, therefore, we would take steps
to unload the truck with supervisor personnel .... Mr. Eisinger replied that as
of this moment he was advising me that if we unloaded the plywood with super-
visors that they would consider it on the unfair list material.
Because of Swafford's instructions to the employee-members of his Union, coupled
with the fact that the Operating Engineers steward agreed to Swafford's request and
directed the members of the Operating Engineers not to receive, off-load, touch, or
handle the plywood on Utter's truck, the truck had to be, and was, off-loaded by
Reynolds' supervisory personnel.
After the truck had been off-loaded and the plywood placed on the ground, Swaf-
ford took a roll of 2-inch masking tape, stuck several strips across each stack of ply-
wood, and then marked, with a marking pen, the word "Scab" across each strip of tape.
On April 14, 13 Hill & Hill trucks and 1 B. F. Walker truck arrived at NTS to
deliver drillcasing consigned to Reynolds The driver of one Hill & Hill truck and
the driver of the Walker truck were members of a Teamsters Union affiliate and the
materials in the trucks of the drivers were received and off-loaded immediately upon
arrival at NTS by warehouse employees of Reynolds, who were Respondent members
22E. F. Ortiz, Reynolds' NTS deputy assistant project manager, and Von Eisinger, a
Respondent official , also "listened in" on this call
21 Neither MacDonald, Elsinger, nor Ortiz testified
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gile, upon Respondent 's instructions , refused, and ordered Daniels to refuse, to
receive the materials at NTS on 12 other Hill & Hill trucks because they were driven
by nonunion drivers. Gile cited sections E and F of article I of the Labor Agreement
as the basis for his refusal and for his instructions to Daniels.
When the nonunion drivers drove the trucks to the warehouse yard at well 3,
Steward Seppe , upon Respondent 's instructions , refused to off-load them. Seppe also
ordered M . D. Fine, foreman of the warehouse employees at well 3, to refuse to
receive and off-load the 12 Hill & Hill trucks driven by nonunion drivers.2-, As a
consequence of such refusals , Reynolds' supervisory personnel received the material,
and the 12 Hill & Hill trucks were off-loaded by Hill & Hill drivers.
On April 15 Respondent notified Reynolds that the materials delivered on April 3,
8, 9, 10, and 14 by nonunion drivers, received by supervisory personnel of Reynolds,
and either off-loaded by the nonunion drivers or by supervisory personnel of Reyn-
olds, were placed on Respondent 's "Unfair List ." Respondent , about the same time,
instructed its stewards and members employed by Reynolds not to use, issue, load,
transport , handle, or otherwise work on said materials or to perform any clerical
work in connection therewith . In accordance with such instructions, Gile, twice on
April 14, ordered Avery Cooley, Reynolds' warehouse foreman in the issuing branch
of general stores and a member of Respondent , not to fulfill any requisition for any
Silva plywood.
On April 15 Gile instructed Russell, a Reynolds' warehouse foreman and a member
of Respondent , not to load or handle this plywood, and instructed Martin , a truck-
driver for Reynolds and a member of Respondent , not to haul the Silva plywood. As
a consequence of Gile's actions , this plywood had to be issued , handled , loaded, and
transported by supervisory personnel of Reynolds.
On April 22 Coca-Cola was delivered to Reynolds by a nonunion route manager
of the Coca -Cola Bottling Company in Las Vegas, Nevada. The Coca-Cola was
delivered to the food warehouse in zone 1, which was its f.o.b. point . This was a
special order and shipment amounted to $260.
Lavender went to the food warehouse after some 20 to 25 cases had been unloaded.
Upon arriving at the food warehouse , Lavender was informed that Respondent's
steward , Art Rudy, had instructed the Reynolds ' NTS personnel who were Respond-
ent members to refuse to unload the Coca-Cola because it had been delivered by a
nonunion driver; Rudy had stated that he had been instructed by Thompson and
Eisinger not to receive any material delivered by nonunion drivers, and that the food
warehouse superintendent had given instructions to the warehouse foreman, who was
also a Respondent member, to have the Coca-Cola unloaded , and the foreman had
refused to do so.
Lavender then called Joe Carter and asked him if those were union instructions
not to unload , and Carter said they were.
The Coca-Cola truckdriver , without any assistance from any Respondent member
employed at NTS, unloaded the truck in about 20 minutes . Shortly thereafter Joe
Carter arrived and stated "the pop would be put on the unfair list and before the
day was over and the supervisors would be drinking hot pop."
There is normally no problem with the delivery of Coca-Cola. The employees of
Coca-Cola are covered by an agreement with a local of the Teamsters Union and
were receiving wages of $81 a week plus commissions of 5 cents a case.
On May 4, 1964, two Byron Jackson trucks, driven by nonunion drivers, arrived
at the gates of NTS from Long Beach, California, with bentonite consigned to
Reynolds.
The trucks arrived inside the complex at approximately 10:30 a.m., May 5. The
usual procedure was to have all trucks hauling bentonite weighed in upon arrival at
the scales and to have them reweighed after the bentonite had been off-loaded, to
determine the actual amount of bentonite delivered.
About 11 a.m ., May 5, Snodgrass , the two Byron Jackson drivers, Edwin Fink, a
supervisor of the Byron Jackson drivers, Bob Riley and John McFarland, two Reyn-
olds NTS supervisors, and Thompson , gathered at the weighing area where the two
trucks were parked.
Snodgrass , in the presence of the persons named above , asked Riley 26 to have
the trucks weighed . Riley replied that he could not have the trucks weighed because
there were no union drivers present to drive the trucks onto the scales . Thompson
then stated that on behalf of Respondent , Riley was forbidden to carry out Snod-
grass' request.
25 Fine and his crew were, and are, Respondent members
21 Riley is, and at that time was, a Respondent member.
TEAMSTERS, LOCAL UNION NO. 631, ETC. 91
Snodgrass telephoned E. F. Ortiz, Reyonlds' NTS deputy assistant project man-
ager, for instructions. Ortiz instructed Snodgrass to either weigh the trucks himself
or have a supervisor do it. McFarland weighed the trucks 27
It was not until about 11:15 that the two trucks were weighed. Under normal
circumstances, it would have taken Riley or his crew only about 10 minutes to weigh
the trucks.
About 8:30 a.m., May 6, two other Byron Jackson trucks arrived at NTS with a,
shipment of bentonite for Reynolds. Snodgrass ordered the trucks to be driven to
the weighing-in area and then he, himself, proceeded to that area. Upon arriving
there, Snodgrass requested Riley to have the trucks weighed. Riley declined to do
so without obtaining the permission of his steward, John Ebarb. Upon being unable
to locate Ebarb by telephone, Snodgrass and Wayne Mabry 28 went to Giles work
area, where Snodgrass told Gile that he had asked Riley to weigh the two Byron
Jackson trucks, but he had refused to do so. Gile stated that the said trucks could
not be weighed by Riley because the drivers were nonunion, citing as his authority
sections D, E, and F of article I of the Labor Agreement.
Snodgrass then suggested to Gile that he telephone one of Respondent's business
agents for permission to have the trucks weighed. Gile, however, refused to do so,,
adding that he would assume full authority in refusing to have the trucks weighed
or off-loaded.
After leaving Gile, Snodgrass and Mabry returned to the weighing area, where-
they met Riley and Ebarb. Snodgrass told Ebarb, in Mabry's and Riley's presence,
that the two Byron Jackson trucks were waitmg to be weighed and that Riley would
not weigh them; that Gile had instructed Mabry to tell Riley that the trucks should
not be weighed by Riley or his crew. Snodgrass then asked Ebarb to telephone
Respondent's Las Vegas hiring hall and ascertain whether the two trucks could be
weighed by Riley's crew. Ebarb telephoned Respondent's Las Vegas headquarters.
After completing his telephone call, Ebarb informed Snodgrass, in Riley's pres-
ence, that he had been instructed by Thompson to refuse to have the trucks weighed.
Thereupon, under instructions from Snodgrass, McFarland weighed the two trucks.
If no problem had arisen with respect to the drivers of the trucks being nonunion,
the trucks would have been weighed by Riley, Mabry, or by some other member of
their respective crews.
On April 15 Respondent wrote Reynolds that the merchandise which had been
received and unloaded by Reynolds' NTS supervisory personnel on April 3,29 8 ,30 9 ,31
10,32 and 14 33 had been placed on Respondents "Unfair List"; that those union
members then employed by Reynolds had been so notified; and that the employees
had been instructed not to handle or work on any of the materials listed on the
"Unfair List." In the notification Respondent further advised Reynolds that if Reyn-
olds attempted to discipline any Respondent member employed by Reynolds at
NTS for refusing to handle any material listed on the "Unfair List" then, in that event,
Respondent would strike Reynolds' NTS operations
Also on April 15 Respondent wrote Reynolds protesting the Hill & Hill delivery
of the previous day as a violation of sections A, B, C, D, E, and F of article I of the
Labor Agreement, and maintaining that the delivery, receiving, and off-loading were
also violative of the working arrangement between the Union and Reynolds, whereby
such disputes were to be resolved at top management level The Union demanded
that Reynolds pay 13 drivers on the Union's out-of-work list $41.42 each and 7 ware-
housemen on the list $38.86 each for the day's work of which they had been deprived
by reason of the performance of the off-loading work by Hill & Hill personnel.34 The
"McFarland is a salaried employee and is not represented by any labor organization
28 Mabry is, and at that time was, a Respondent member.
The tubing shipped by Colorado Fuel & Iron Company of Pueblo, Colorado, in a
Jeffries Eaves truck.
30 The Grizzly feeder shipped by Allis-Chalmers , of West Allis, Wisconsin , in an Interna-
tional Transportation truck.
ffi The antenna group shipped from Pueblo, Colorado, in a Dealers Transit truck.
32 The plywood of Silva Brothers of Eugene, Oregon, shipped in a Jim Warren truck
33 The pipe which was off-loaded from the 13 Hill & Hill trucks driven by nonunion
drivers.
"It will be recalled that on April 14, 14 Hill & Hill trucks arrived at NTS with
merchandise consigned to Reynolds. The driver of one of the trucks belonged to a
Teamsters local ; the 13 other drivers were nonunion Seven "swampers" accompanied
the trucks from Corpus Christi, Texas. Since Respondent's members refused to off-load
the trucks driven by the 13 nonunion drivers, the 7 "swampers" were called upon to do
that job.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter concluded with a statement to the effect that if the pay demanded was not forth-
coming in the near future, action to enforce payment would be taken in the Small
Claims Court.
C. Concluding findings
Section 8(e) of the Act, as amended by the Labor-Management and Disclosure
Act of 1959, provides in pertinent part.
It shall be an unfair labor practice for any labor organization and any
employer to enter into any contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from handling,
using, selling, transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other person, and any con-
tract or agreement entered into heretofore or hereafter containing such an agree-
ment shall be to such extent unenforceable and void: Provided, That nothing in
this subsection (e) shall apply to an agreement between a labor organization and
an employer in the construction industry relating to the contracting or subcon-
tracting of work to be done at the site of the construction, alteration, painting, or
repair of a building, structure, or other work:... .
Section 8(b)(4)(i) and (n)(B), as amended in 1959, provides in relevant part
that it shall be an unfair labor practice for a union or its agents
(4) (i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting commerce to engage
in, a 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 commerce
or in an industry affecting commerce, where in either case an objective thereof
is:....
*
(B) forcing or requiring any person ... to cease doing business with any other
person ....
Section 8(e) implements and reinforces the secondary boycott provisions added by
the 1947 Taft-Hartley Amendment to the Act. These provisions were specifically
designed to limit the area of industrial dispute in order to confine its effects to the
parties immediately conceined and to prevent its extension to employers not directly
involved.
There are two prerequisites for the finding of a Section 8(b) (4) (i) (B) viola-
tion: (1) that a labor organization induce or encourage any individual employed
by any person to engage in a work stoppage; and (2) that an object of this conduct
be to force or require one person to cease doing business with another person. Section
8(b)(4)(ii) is a wholly new provision added to Section 8(b)(4) by Congress as a
part of the 1959 amendments to the Act The two prerequisites for the finding of a
Section 8(b)(4)(ii)(B) violation are- (1) that a labor organization "threaten,
coerce, or restrain any person"; and (2) that an object of this conduct be to force
one person to cease doing business with another person.
Section 8(b)(4) renders unlawful, as did the corresponding provisions of the
1947 Act, the implication of neutral employers in disputes not their own where an
object is to force the cessation of business relations between the neutral employer and
any other person. "The impact of the section [is] directed toward what is known as
the secondary boycott whose `sanctions bear, not upon the employer who alone is a
party to the dispute, but upon some third party who has no concern in it.' Interna-
tional Brotherhood of Electrical Workers v. N L R B., 181 F. 2d 34, 37, affd. 341 U S.
,694." Local 761, International Union of Electrical, Radio and Machine Workers,
AFL-CIO (General Electric Company, Intervenor) V. N.L.R.B., 366 U.S. 667, 672 .35
As the Board has succinctly pointed out in several cases, the execution and enforce-
ment of a contract clause which prohibits the subcontracting of work performed by
employees in a bargaining unit covered by such contract may be lawful because its
objective is the preservation of work in the unit 36, On the other hand, where a clause
as See also N.L.R.B. v Joint Council of Teamsters No. 38, at al., and Arden Farms Co.,
et al. (California Assn. of Employers), 338 F. 2d 23 (CA 9) ; N L R.B. v Milk Wagon
Drivers' Union, Local 753, etc. (Pure Milk Association), 335 F. 2d 326 (CA 7).
iS See, for example, Ohio Valley Carpenters District Council, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, et al. (Cardinal Industries, Inc.), 136
NLRB 977 ; Milk Drivers and Dairy Employees Union, Local No. 546, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Minnesota Milk
Company), 133 NLRB 1314, affil sub nom Minnesota Milk Co. v N L,R B , 314 F. 2d
761 (C A 8).
TEAMSTERS, LOCAL UNION NO. 631, ETC. 93
allows subcontracting or permits the receipt of merchandise from sellers only under
;ertain conditions; e.g , a provision by which the subcontractor or seller is under con-
tract with the union or is approved by the union, the basic target of such clause
concerns the employment conditions of the employees of another employer, it is
secondary in natuie and therefore within the scope of Section 8(e) 37
The credited evidence, as epitomized above, leaves no doubt that Respondent,
through its various officials, including Thompson, Gile, Swafford, Rudy, Ebarb, and
Seppe, induced and encouraged an "individual employed by any person" and
threatened a "person engaged ... in an industry affecting commerce" to bring about
a work stoppage proscribed by Section 8(b) (4) (i) and (ii) (B) of the Act. This
finding becomes inescapable when consideration is given to the numerous demands,
instructions, orders, and appeals of Thompson, Gile, Seppe, Swafford, Rudy, Ebarb,
and other officials of Respondent to its members employed by Reynolds at NTS not
to receive any merchandise which arrived at NTS on a truck driven by a nonunion
driver nor to off-load any such truck There can be no doubt that the aforesaid
instructions, orders, demands, and appeals were to cut off shipments of merchandise
to Reynolds by carriers employing nonunion drivers with whom Respondent had a
"primary" or "ultimate" dispute. Respondent's picketing of the Wolfe Mobile
Trailers clearly establishes that "an object" of its conduct was to force or require
Johnson to cease doing business, and to force Reynolds or require Reynolds to cease
doing business, with Wolfe and Morgan Drive-Away. Respondent's dispute in that
instance was with interstate carriers and vendors who employ nonunion drivers who
enter Respondent's territorial jurisdiction at NTS. Respondent sought to conscript
Reynolds and Johnson to aid in this dispute. The nonunion drivers were employees of
the interstate carriers and vendors and were not employees of Reynolds It thus
follows that by the actions of Thompson, Gile, and the various other Respondent
officials here involved, Respondent induced work stoppages with an object of forcing
a cessation of business between a neutral and the primary employer, a plain violation
of Section 8(b) (4) (i) (B).35
In short, it is settled law that a union cannot use means proscribed by Section
8 (b) (4) (i) and (ii ) and pressure an employer who has no control over whom another
employer hires. Respondent, by inducing its members and the members of the Operat-
ing Engineers Union then employed,at NTS by Reynolds to cease work, was forcing-
or attempting to force-Reynolds to "cease" or to "refrain" from doing business 39
with any interstate carrier or vendor who did not hire drivers who were members of
the Union or of one of its sister locals when making deliveiies to Reynolds at NTS
Assuming, as Respondent contends, that Respondent also had other objectives;
e g., uniformity of wages and working conditions among employers doing business
with Reynolds and Johnson, a desire to treat all signatories to the Labor Agreement
alike, the preservation and stabilization of established working conditions at the NTS
area, it can draw no comfort from this. It is settled law that if an object of a union's
activity is unlawful, the legality of its other objectives does not insulate its conduct
37 District No. 9, International Association of Machinists, AFL-CIO (Greater St Louis
Automotive Trimmers & Upholsterers Assn.) v. N.L.R.B., 315 F. 2d 33 (CAD C) ; Los
Angeles Mailers Union No. 9, International Typographical Union, AFL-CIO (Hillbro News-
paper Printing Co.) v. N.L.R B, 311 F. 2d 121 (C A.D C) ; Bakery Wagon Drivers and
Salesmen, Local Union No 484 (Continental Baking Co., et al.) v. NL.RB., 321 F 2d
353 (C.A.D.C) ; N.L R.B. v. Amalgamated Lithographers of America (Ind ) et at. (Lithog-
raphers and Printers National Assn, et al.), 309 F. 2d 31 (C.A. 9) ; NL.R.B. v. Joint
Council of Teamsters No 38, supra; Milk Wagon Drivers' Union, Local 753, etc., supra.
33 Besides the cases cited, supra, see N .L.R B. v. Local 294, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Van Transport Lines,
Inc.), 298 P. 2d 105 (C A. 2) ; N.L R B. v. Plumbers Union of Nassau County, Local 457.
etc (Bomat Plumbing it Heating ), 299 F. 2d 497 (C A 2) ; International Brotherhood of
Electrical Workers, Local 501, et al. (Samuel Langer) v. N.L R.B., 341 U S. 694, N L R B.
v. Denver Building and Construction Trades Council, at at. (Gould it Preisner), 341
U.S. 675.
3D There is no doubt that Reynolds had "business" arrangements with the carriers and
vendors named in the consolidated complaint and that Respondent wanted Reynolds to
"cease" carrying out those arrangements. Section 8(e) reaches agreements to "refrain"
from doing business with another employer as well as agreements to "cease" such activity
The language and legislative history of the "cease doing business" provision show that it
was intended as a catchall clause, inserted to cover any agreement within the congres-
sional intendment which the language of the "cease" or "refrain" part of the section
might not cover. (2 Leg Hist. 1162 (1959) ; 2 Leg Hist 1708 (1959) ; 1 Leg Hist
683 (1959) )
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the proscription of Section 8(b) (4).40 Indeed, even if Respondent's ultimate
objectives were lawful, "a finding of an illegal intermediate objective is all that is
required." 41
Respondent's reliance on Retail Clerks Union Local 770, etc. (United States Hard-
ware and Paper Company, et al.) V. N.L.R.B., 296 F. 2d 368 (C.A D.C.), is mis-
placed. That case does not hold that a union may engage in prohibited conduct
against an employer where another employer controls the work in question, a situa-
tion which the instant case is faced with.
Respondent further contended at the hearing and in its brief that by engaging in
the activity of questioning the over-the-road drivers upon their arrival at NTS
regarding their union drivers, it was merely attempting to preserve the working
standards in the area set up in the Labor Agreement, and hence its conduct in that
regard was not violative of the Act.
In support of said contention Respondent relies heavily on Orange Belt District
Council of Painters No. 48, AFL-CIO, et al. (Calhoun Drywall Co.) v. N.L.R B.,
328 F. 2d 534 (C.A.D.C.). In that case the court, referring to two of its earlier
decisions,42 held that clauses which seek to limit contracting to employers who
maintain "labor standards" commensurate with those of the employer party to a
collective-bargaining contract with a union are "primary," in that they seek to pre-
serve and protect such standards and are not proscribed by Section 8(e). The dis-
puted contract provisions and Respondent's conduct in the instant case do not
permit reliance upon the court's reasoning in Orange Belt.
Not only are sections D, E, and F of article I of the Labor Agreement inapposite
to the type of clause referred to in Orange Belt,43 but the facts belie the contention.
It is apparent that the "labor standards" referred to in Orange Belt, which are
normally gained by unions for employees pursuant to labor agreements with employ-
ers, include more than wages alone. The Labor Agreement under consideration here,
for example, among other provisions, provides the following standards other than
wages: Union recognition; hiring hall; provisions for governing strikes, lockouts, and
jurisdictional disputes; classifications; procedures for settlement of grievances and
disputes; holidays; overtime pay; and working rules providing for meal periods,
payment of wages, traveltime, and subsistence.
The record clearly established that no steward or business agent of Respondent
ever asked any nonunion driver for an interstate carrier or for a vendor whether he
had similar, greater, less, or any of the standards set forth in the Labor Agreement.
In fact, Gile testified, and I find, that he would ask the driver, "If he was a member
of the union, if he belonged to the union," and if the driver answered in the affirma-
tive, he would then request to see his union book, simply to determine if the driver
knew, or was receiving, the prevailing wage rate in the locality.
Other than the above procedure, Gile never asked the drivers whether they received
any of the other benefits or standards provided for in the Labor Agreement. In fact,
when Gile took a driver to a Reynolds' representative for the purpose of disclosing to
the representative that the driver was nonunion and therefore Respondent's members
would not receive or off-load the truck, he never questioned the driver concerning
his wage rate or any other term or condition of employment under which he worked.
In fact, Gile testified, and I find, that at no time did he state to any Reynolds' repre-
sentative that Respondent was refusing to receive and off-load the truck because
the driver was not receiving the prevailing wage rate.
Gile further testified, and I find, that when a union driver for an interstate carrier
or vendor arrived at NTS with material for Reynolds from any State outside the
State of Nevada, he did not know, nor did he inquire about, the wage rate the driver
was receiving; that he had no personal knowledge that the union drivers were in
fact being paid the wage rates called for in the Labor Agreement; and that he would
merely ask the driver if he belonged to a union, and if he produced a union book,
4°N.L.R.B v. Denver Building and Construction Trades Council, at al (Gould &
Preisner), 341 U.S 675; N.L.R B. v. Local 74, United Brotherhood of Carpenters &
Joiners of America, A.F. of L., at al (Watson's Specialty Store), 341 U.S 707
41 Amalgamated Meat Cutters & Butcher Workmen of North America, AFL, Local 88
(Swift & Company, Intervenor) v. NL.R.B., 237 F. 2d 20, 25 (C.A.DC.).
48 Retail Clerks Union Local 770, etc. ( United States Hardware and Paper Company,
et al.) v. N.L.R.B., supra, and District No. 9, International Association of Machinists,
AFL-CIO (Greater St. Louis Automotive Trimmers & Upholsterers Assn) v N L R.B ,
315F 2d33 (C.A D.C.)
4a See, for example, Meat and Highway Drivers, Dockmen, Helpers and Miscellaneous
Truck Terminal Employees, Local Union No. 710, etc. (Wilson & Co.) v. N.L.R.B., 335
F. 2d 709 (C.A.D.C.).
TEAMSTERS , LOCAL UNION NO. 631, ETC. 95
he would not pursue the matter any further. In short, Gile made no inquiry of the
driver except to ascertain whether he was a union member. If he was, then the
driver was permitted to have his truck off-loaded. If he was not, the driver had to
accept one of Respondent's four alternatives, otherwise Respondent's members would
not off-load the truck.
Respondent also very heavily relies on the proviso to Section 8(e), which exempts
from the ban of that section agreements "between a labor organization and an
employer in the construction industry relating to the contracting and subcontracting
of work to be done at the site of the construction, alteration, painting, or repair of a
building, structure, or other work...."
Respondent's main contention in this regard was that the proviso was applicable
to all the material delivered to NTS for the account of Reynolds and thus it was within
its statutory as well as its contractual rights in seeking to force Reynolds to purchase
or rent materials from, and have such materials hauled to NTS, by employers whose
drivers were represented by Respondent or one of its sister locals. The tasks which
the drivers in the instant proceeding performed were merely the final act of delivering
certain materials to Reynolds, and hence the contention is without merit.
As will be shown immediately below, it is manifestly clear that Congress intended
to, and did, limit the proviso's exception to work actually performed on the construc-
tion site and to leave within the hot cargo ban the delivery of materials to the site.
The House Conference Report states,44 "It should be particularly noted that the
proviso relates only and exclusively to the contracting or subcontracting of work
to be done at the site of the construction. The proviso does not exempt from Section
8(e) agreements relating to supplies or other products or materials shipped or other-
wise transported to and delivered on the site of the construction." [Emphasis sup-
plied.] 45 Senator Kennedy explained on the floor of the Senate that the proviso
"does not cover boycotts of goods manufactured in an industrial plant for installa-
tion at the jobsite, or suppliers who do not work at the jobsite." 46 Representative
Barden, another proponent of the 1959 amendments, stated that the proviso dealt
only with "the contracting or subcontracting of work to be done directly on the site
of the construction." [Emphasis supplied.] 47 Here, it is evident that interstate car-
riers and vendors were supplying materials, not all of which were purchased or
rented for use in construction work, from points located outside the NTS project;
and the question presented is whether the onsite driving can be separately classified
as construction site work or whether these tasks, in fact, form an integral part of the
total process of delivering materials. The very nature of the materials delivered to
Reynolds at NTS and the use to which most of it is put amply supports a finding that
the onsite tasks were but an inseparable extension of the total delivery process, and
I so find 48
At the hearing and in its brief, Respondent contended that it was merely seeking
to enforce the rates provided by the Davis-Bacon Act for certain work at NTS.
The short, but respectful, answer to this contention is that the record is absolutely
devoid of any credible, or other, evidence that Respondent sought to enforce the
payment of such rates with respect to union drivers nor if the nonunion drivers
accepted one of Respondent's four alternatives of joining Respondent or returning
the load to Las Vegas for delivery by a union driver.
441 Leg Hist 943 (1959).
"The underscored words indicate that Congress had in mind the total process of
delivering materials. Thus, the fact that some portion of a continuous delivery takes
place on the jobsite would not qualify that final segment as construction site work
482 Leg. Hist. 1433 (1959)
472Leg Hist 1715 (1959).
For example, (1) The Grizzly feeder, a rental item, was delivered to the NTS stor-
age yard, to be transported later to an area 45 miles away. It was not a complete
piece of equipment when delivered ; rather, it was to be assembled at the forwarded area.
It is a grader used to produce sand. (2) The antenna group, a capital item, delivered
to the NTS storage yard, is part of a missile tracking system used by the U.S. Weather
Bureau at various locations at NTS. (3) The drillcasing, a stock item, delivered to the
well 3 yard and never immediately delivered to the point of use, is later issued to the
drilling department by the supply department. When requisitioned, it is transported to
the drillsite and assembled at that location It is used to preserve holes left standing
to prevent cave-ins (4) Detergent, a stock item, delivered to well 3 yard, is later mixed
at mudplants at areas 3 and 9 Thereafter, it is injected into drills at the drillsite.
(5) Bentonite, a special order, delivered at well 3, is later checked out as needed and
mixed at the mudplant From there, it is transported to the drillsite, where it is placed
on bits of the drill rigs to keep them cool
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In any event, it is apparent that deliveries of materials and equipment by over-the-
road drivers or by vendors to NTS consigned to Reynolds are not covered by the
Davis-Bacon Act That act provides in pertinent part:
The advertised specifications for every contract in excess of $2,000, to which
the United States or the District of Columbia is a party, for construction, altera-
tion, and/or repair, including painting and decorating, of public buildings or
public works of the United States or the District of Columbia within the geo-
graphical limits of the States of the Union, or the District of Columbia, and
which requires or involves the employment of mechanics and/or laborers shall
contain a provision stating the minimum wages to be paid various classes of
laborers and mechanics which shall be based upon the wages that will be deter-
mined by the Secretary of Labor to be prevailing for the corresponding classes
of laborers and mechanics employed on projects of a character similar to the
contract work in the city, town, village, or other civil subdivision of the State
in which the work is to be performed . . . .
The over-the-road drivers are not mechanics or laborers under any normal use
of the term Deliveries are not for the construction, alteration or repair, painting or
decorating of public buildings, or reasonably public works in the sense intended by
the aforesaid act. The drivers perform no work on the site other than making the
delivery, and no construction work is performed at the warehouses and storage
yards Finally, a goodly portion of the materials were not destined for construction,
alteration, or repair of buildings.
Respondent's further contention was that one of the main purposes of sections D, E,
and F of article I of the Labor Agreement was to preserve "unit work."
The Board has held that contract provisions, which do more than define and
reserve exclusive performance of employees in a bargaining unit work of a kind
that traditionally has been performed in that unit, have a different function from the
contracts which Congress was concerned with under Section 8(e). For the sole,
direct, and primary aim of such clauses is to protect and preserve work, and there-
fore jobs for employees within the bargaining unit 49 On the other hand, it is now
11N.L R.B v Local 38, International Brotherhood of Electrical Workers, AFL-CIO
(S. Simon Construction Co ), 339 F 2d 197 (CA 6), enfg 141 NLRB 938. Ohio Valley
Carpenters District Council , etc (Cardinal Industries , Inc.), 136 NLRB 977 , enfd 339
F. 2d 142 (C.A. 6). It Is interesting to note at this juncture that in disposing of the
issues in the Ohio Valley case, the court observed:
The foregoing is part of the so-called "secondary boycott" provisions of the statute
['8(b) (4) (i) and (ii ) (B).] We need not venture into a general discussion of their
purposes or meaning. The problem has been before the courts in numerous varying
fact situations [Citing cases ]
The Supreme Court has pointed out that the statute cannot be applied literally,
for "it would ban most strikes historically considered to be lawful, so-called primary
activity " [Citing a case ] At the same time the objectives of the statute in re-
spect to secondary boycotts must be achieved "[D]ual congressional objectives,"
the Court has called the provisions [Citing cases ] Thus lines must be drawn, and
accordingly, as the Court has told us, the Board and the courts have attempted to
devise criteria. "The nature of the problem, as revealed by unfolding variant situa-
tions, inevitably involves an evolutionary process for its rational response, not a
quick, definitive formula as a comprehensive answer" [Citing a case ]
The basic criterion is, as the statute (Section 8(b)(4)) specifically provides, the
object, or objects, of the union action [Citing a case ] So the problem is. What
was the object? The Board has held several times that, if a union demands that a
contractor do something he is powerless to do except by ceasing to do business with
somebody not involved in the dispute, it is manifest that an object of the union is to
induce this cessation of business [Citing cases.] The courts to which this prob-
lem has come have agreed with the holdings
We think this is rational and proper reasoning So in the case before us Hankin's
[sic] only means of compliance with the union demand was to cease doing business
with Cardinal Hankins had no power to do by its own act what the union demanded
that it do, that is, build the framing with its own men on the jobsite. It is reason-
able to hold that the object of the union was not an impossible act but was the
alternative possible.
The union says its agreement with Hankins was a legal one, designed to preserve
to its members (Hankin's [sic] employees) work normally theirs. But it is estab-
lished that a legal contract does not immunize illegal action employed for its en-
forcement. [Citing a case ]
TEAMSTERS , LOCAL UNION NO. 631, ETC. 97
well established that clauses in a collective-bargaining contract which expressly or
iinpliedly permit the subcontracting of unit work only to employers under contract
with the union violate Section 8(e).50 The clauses of the Labor Agreement here
under consideration, realistically appraised, are nothing more than an implied union
signatory agreement restricting Reynolds and the other employers who are signa-
tories to said Agreement to those employers under contract with Respondent or one
of its sister locals, without regard to unit considerations. Thus, the clauses place
restrictions which are not "strictly germane to the economic integrity of the prin-
cipal work unit ... it is, rather, a provision to make certain the primary employer
[i.e , the employer whose employees are to perform the work] is under contract with
the Union. . ."
I am not unmindful of the decision of the Court of Appeals for the Seventh Circuit,
in Meat and Highway Drivers, etc. (Wilson & Co.) v. N.L.R.B, supra, where, in
overruling the Board the court found a so-called "work allocation" clause was not
proscribed by Section 8(e). Since the facts in that case are clearly distinguishable
from those in this one, Respondent's apparent reliance thereon is misplaced. This
finding becomes eminently clear when consideration is given to the fact that in
Meat and Highway the question there involved was one of "work recapture" while
here we are concerned merely with "work allocation "
The evidence in the instant case discloses that no problem arose concerning the
receipt and off-loading of any interstate carrier truck at NTS if the driver was a
Respondent member or a member of a sister local. In those situations, the drivers
were not Reynolds' employees; they were employed rather, by carriers who were
parties to the Master Freight Agreement and not a party to the Labor Agreement.
Only when the driver was nonunion did a problem arise However, the evidence
herein clearly establishes that Respondent was not attempting to preserve unit work.
In none of the conversations with Reynolds' representatives concerning a nonunion
driver incident did any union representative contend that Respondent was refusing
to receive and off-load the truck pursuant to sections D, E, and F of article I of
the Labor Agreement in order to preserve unit work for Reynolds' employees under
the Agreement. Moreover, when certain nonunion drivers joined the Union by
accepting one of the four alternatives, he was permitted without delay to continue
his delivery at NTS without incident. It cannot therefore honestly be contended
that when Respondent permitted a nonunion driver who elected to become a union
member in order to have his truck received and off-loaded that Respondent was
seriously concerned with preserving unit work. This is especially true of those non-
union drivers who came from far-distant places For aught this record shows those
drivers never again returned to NTS nor did they keep their union membership in
good standing, as required by the Labor Agreement.
I have given careful consideration to the various other contentions advanced by
Respondent at the hearing and in its brief, and find each of them to be without
merit or substance.
Upon the entire record in the case, I find the deliveries of the heretofore referred-to
materials to Reynolds at NTS by the over-the-road drivers for the above-named car-
riers or vendors do not come within the construction industry provision of Section
8(e) of the Act, and that the purchase orders and rental agreements did not involve
agreements for onsite work, but were in reality purchase orders and rental agree-
ments which also provided for delivery of materials. Accordingly, I find that sections
D, E, and F of article I of the Labor Agreement-to the extent that that article, as
construed and interpreted by Respondent, may require the delivery of materials be
performed by members of Respondent or by members of a sister local-violates
Section 8(e). It follows, and I find, that by its conduct-in particular, the state-
ments made, and the activities engaged in by Respondent's representatives on Novem-
5oHighway Truck Drivers and Helpers, Local 107, etc (E A. Gallagher & Sons), 131
NLRB 925, enfd 302 F. 2d 897 (C A.D C.) , District No 9, International Association of
Machinists, AFL-CIO (Greater St. Louis Automotive Trimmers and Upholsterers Asso-
ciation, Inc.), 134 NLRB 1354, enfd. 315 F. 2d 33 (CA.D.C.) ; Bakery Wagon Drivels
& Salesmen, Local Union No. 484 (Clifford L. Aksland, d/b/a Sunrise Transportation),
137 NLRB 987, enfd. 821 F 2d 353 (CAD C ) ; Building and Construction Trades
Council of San Bernardino and Riverside Counties, et al (Gordon Fields) v N L.R B ,
328 F. 2d 540 (C.A.D.C.).
206-446-66-vol 154-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 20 and 26, December 16 (the C & H Transportation Co. and Wolfe Trailer Sales
Company incidents), 19, and 27, 1963, January 9, 20, and 27, February 9, March 6,
April 3, 8, 9, 10, 14, 15, and 22, and May 4 through 6, 1964-violated Section
8(b)(4)(i) and (ii)(B) of theActe1
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the companies herein involved, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has violated Section 8(b) (4) (i) and (ii) (B) of
the Act, it will be recommended that it cease and desist therefrom, and that it take
certain affirmative action designed to effectuate the policies of the Act.
I further recommend that an order proscribing unlawful conduct, not only with
respect to Reynolds, R. C. Johnson & Associates, and the shippers and vendors
named herein but with any other person within Respondent's jurisdictional area, is
necessary. Particularly to be noted are Respondent's contention of jurisdiction over
all classifications of vehicles coming onto the project site, the fact that Respondent's
Labor Agreement is with many employers, and Respondent's demonstrated proclivity
to engage in conduct unlawful under the Act.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
2. Reynolds, Johnson, and the shippers and vendors named herein above are
persons or individuals engaged in commerce within the meaning of Sections 2(6)
and (7) and 8(b) (4) of the Act.
3. By inducing and encouraging employees of Reynolds to engage in strikes or
refusals in the course of their employment to transport and deliver their employer's
goods or products, or to refuse to off-load the trucks of nonunion drivers or to per-
form services, and by picketing the mobile trailers of Wolfe Trailer Sales Company
and preventing the nonunion drivers hauling said trucks from delivering them to
Reynolds, with an object of forcing and requiring the Company to enter into an
agreement which is prohibited by Section 8(e) of the Act, and with a further object
of forcing or requiring the nonunion drivers to become members of Respondent
or to hire Respondent members to drive their trucks onto the project site, Respondent
has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and
(u) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
"Even if the construction industry proviso were applicable to the deliveries here in-
volved, which it is not, this would avail Respondent nought as the legislative history
(H. Conf. Report No. 1147, 86th Cong. 1st sess., p. 39; 2 Leg. Hist. 943 (1959) shows,
and the Board and the courts have held, that the proviso was not intended to legalize
strikes, or the use of coercive measures, to enforce the specified type of restrictions which
it withdraws from the reach of Section 8(e). See, for example, Sheet Metal Workers
International Association, AFL-CIO, et at. (The Burt Manufacturing Company), 127 NLRB
1629; N.L.R B. v. Bangor Building Trades Council (Davison Const Co ), 278 F. 2d 287
(C.A. 1) ; NL.RB. v. International Union of Operating Engineers, Local Union No. 12,
AFL-CIO (Tri-County Assn. of Civil Engineers), 293 F. 2d 319 (C A. 9). See also
Ohio Valley Carpenters District Council, etc. (Cardinal Industries, Inc ), 136 NLRB
977, 984-989.