Truck Drivers and Helpers Local Union 728, Etc.

National Labor Relations Board - Board Decisions

Sep 16, 1963

144 N.L.R.B. 590 (N.L.R.B. 1963)

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protected by Section 7 of the Act 25 As the 31 employees who thus withheld their
services , even in the face of the two specific warnings given them, were each
specifically discharged for the stated reason that they did engage in the stoppages,
after warning, I must necessarily conclude that since the activity in which they par-
ticipated was not within the protection of Section 7, their discharge for thus con-
ducting themselves did not constitute a discrimination against them . I accord-
ingly find and conclude that so much of the complaint as alleges discrimination against
the 31 striking employees herein in violation of Section 8(a03) of the Act and in-
terference , restraint , and coercion of them in violation of Section 8(a)(1) be
dismissed.
RECOMMENDATION
It is recommended that the complaints in both Case No. 26-CA-1170 and Case
No. 26-CA-1236 be dismissed in their entirety.
25 International Union, U.A.W.A., A.F. of L, Local 232 , et at . v. Wisconsin Employment
Relations Board, et at . ( Briggs & Stratton Corp ), 336 U.S 245; C. C. Conn, Limited v.
N L R.B , 108 F. 2d 390 ( C.A. 7). Cf. Textile Workers Union of America, CIO, and Local
1172 , at at. v. N.L .R B. (Personal Products Corp. ), 227 F. 2d 409 (C.A.D.C.).
Truck Drivers and Helpers Local Union No . 728, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Brown Transport Corp . Cclse No.
10-CC-510. September 16, 1963
DECISION AND ORDER
On March 1, 1963, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Intermediate Report. Thereafter, the Charging Party filed
exceptions to the Intermediate Report and a brief in support of said
exceptions; the Respondent filed a brief in support of the Inter-
mediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the following additions.
The Charging Party's request for oral argument is hereby denied,
inasmuch as the record and the briefs adequately present the positions
of the parties. The Board, has also considered the Charging Party's
request to reopen the hearing or, alternatively, to accept the affidavit
of its attorney concerning certain testimony he would have given had
he taken the stand. As no newly discovered evidence is involved, the
request and the alternative request are hereby denied.
144 NLRB No. 30.
TRUCK DRIVERS AND HELPERS LOCAL UNION 728, ETC. 591
The Trial Examiner found, and we agree, that the Respondent in
its ambulatory picketing of the trucks of Brown Transport Corp.
(Brown) engaged in legitimate picketing outside the reach of Sec-
tion 8(b) (4) (i) and, (ii) (B).
The picketing occurred during a 4-month strike arising out of a
contract dispute between Brown and the Respondent, as the repre-
sentative of Brown's drivers, and centered mainly about Brown's
pickup and delivery drivers whose work situs was away from Brown's
terminal during the greatest part of their working time. At the
beginning of the strike, the ambulatory picketing was also directed at
Brown's trailer drivers, who principally go to interline carriers to
leave their trailers for loading by others. Unlike the pickup and
delivery drivers, however, the trailer drivers return to Brown's ter-
minal many times a day, and it was partly for that reason that the
Respondent discontinued picketing the trailer drivers at the terminals
of other carriers early during the strike.
The Respondent Union issued detailed instructions to its members
concerning the manner in which Brown's nonstriking drivers were to
be picketed, when engaged in the performance of their work duties
away from Brown's terminal. The instructions as printed and as
discussed with the pickets (a) admonished its members not to picket
on secondary premises except when Brown trucks were present; (b)
told the pickets to refrain from doing anything to induce employees
of other employers not to handle Brown freight; (c) described the use
of a letter to be presented to secondary employers explaining the
controversy with Brown and requesting their permission to picket
on their premises in the vicinity of Brown's trucks while such trucks
were on the premises; (4) explained that, absent permission, they
were to picket only at the entrance nearest which the Brown truck
was loading or unloading freight; and (e) directed the pickets to
engage in no conversations at all, and, if asked any questions, to hand
out a slip stating that they had been told to say nothing,' or, if the
questioner persisted, to hand him a leaflet with a brief message ex-
plaining the purpose of the picketing and its limitation to Brown
drivers only.
As found by the Trial Examiner on the basis of all the record
evidence he found credible,' the Respondent, with insignificant ex-
ceptions, conducted the picketing in compliance with the picketing
plan as outlined in the aforesaid instructions. Although the pickets
1 The signs carried stated that the picketing was directed to Brown employees and to
no one else.
The Charging Party excepted to credibility findings made by the Trial Examiner It is
the Board ' s established policy not to overrule a Trial Examiner ' s resolution as to credi-
bility unless , as is not true here , the clear preponderance of all the relevant evidence
convinces us the resolutions were incorrect . Standard Dry Wadi Products , Inc, 91 NLRB
544, enfd . 188 F. 2d 3,62 (C.A. 3). On the record before us we find insufficient basis for
disturbing the Trial Examiner's credibility findings.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did on several occasions deviate slightly from their written instruc-
tions, we find in agreement with the Trial Examiner that the com-
paratively few deviations-considering the length of the strike and
the considerable number of pickets who were involved-were not such
as to affect materially the basic character of the picketing. We par-
ticularly note that in the only instances where the deviations appear
to have been a direct cause of work stoppages by neutral employees-
the two episodes involving picketing at both entrances of the Candler
warehouse property on June 21 and 22-the Union, after learning
of the incidents, was quick to issue further specific instructions to the
pickets to correct the situation and to avoid a repetition of the inci-
dents. The remaining deviations claimed, to the extent found sup-
ported by credited evidence, were properly regarded by the Trial
Examiner as insignificant when considered in the context of the
total picture.
In all the circumstances, and considering particularly that the pick-
up and delivery drivers spent but a small fraction of their working
time at Brown's terminal and that their principal work situs was
away from that terminal, we believe that the Respondent had a
legitimate interest in publicizing through picketing its primary dis-
pute with Brown at the places where Brown's employees actually per-
formed their work. The record persuades us that the Respondent
made a genuine attempt to minimize the impact of its picketing con-
duct on secondary employers with whom the drivers' ambulatory work
operations come into contact by complying with the Moore Dry Dock 3
conditions for permissible primary picketing at secondary premises,
that is : (a) picketing at the secondary premises only when the work
situs of the employees picketed is harbored there; (b) the work being
done by the picketed employees at the secondary premises is in pursuit
of the primary employer's normal business; (c) the picketing is
limited to places normally close to the location of the primary em-
ployer's work situs at such premises; and (d) the picketing discloses
clearly that the dispute is with the primary employer only.
We recognize that the Moore Dry Dock standards "are not to be
applied on an indiscriminate `per cc' basis" (International Brother-
hood of Electrical Workers, Local Union 861, et al. (Plauche Elec-
tric, Inc.), 135 NLRB 250, 251), and that mere outward compliance
with such standards may not be used as a shield where independent
proof exists that the picketing was actually aimed at achieving un-
lawful secondary objectives over and beyond such incidental effects as
might normally be a concomitant of legitimate primary picketing. In
the instant case, we have carefully considered the evidence on which
the Charging Party relies to supply such independent proof of an
unlawful objective, as more fully detailed in the Intermediate Report.
8 Sailors' Union of the Paoif e, AFL (Moore Dry Dock Oonvpany ), 92 NLRB 547.
TRUCK DRIVERS AND HELPERS LOCAL UNION 728, ETC. 593
But, like the Trial Examiner, we are unconvinced that such evidence,.
to the extent found credible, is sufficient to negate the presumption
of legality arising from the Respondent's compliance with the Moore
Dry Dock criteria. There is no independent evidence that the picket-
ing was intended or expected to operate as an automatic "signal" for
work stoppages by employees of neutral employers, nor does it appear
to have had that effect. We note that where secondary employers per-
mitted the pickets on their property, so that picketing could be carried
on immediately adjacent to the Brown trucks, the other operations
carried on at the secondary employer's premises appear practically
without exception to have continued without interruption. We also
note that, following the objection of some operators of interline freight
depots that picketing outside their premises had resulted in work
stoppages by employees of neutral employers, the Respondent decided
to change the emphasis of the ambulatory picketing from the Brown
interline drivers, who frequently passed through the picket line at
Brown's terminal, to Brown's pickup and delivery drivers, whose work
kept them away from Brown's terminal for substantial periods of
time. The action taken by Respondent to prevent a repetition of sec-
ondary work stoppages at the Candler warehouse property-adverted
to above-also argues cogently against a finding that the picketing
was aimed essentially at imposing unlawful pressures on, secondary
employers.
[The Board dismissed the complaint.]
MEMBER LEEDOM, dissenting :
I do not agree with my colleagues that the picketing at the premises
of neutral secondary employers was limited to the trucks of Brown,
the primary employer, and hence was lawful.
Brown had its own separate terminal, which the Union picketed in
support of its dispute with Brown. As found by the Trial Examiner,
Brown's interchange drivers shuttled back and forth between Brown's
terminal and the interchange points many times a day. Brown's
pickup and delivery drivers, as well as its interchange drivers, spent
substantial amounts of time at Brown's terminal.4 As I have in-
4 To establish that such drivers spend substantial time at Brown ' s terminal , the General
Counsel put on as witnesses seven Brown pickup and delivery drivers, at which point the
Trial Examiner stated that the testimony on this point was cumulative . Concerning the
time spent by them at the Brown terminal , as well as their estimate with respect to
their opportunity to see the pickets there , the record shows:
Duffy : 2 or 21/2 hours a day ; observed picketing there 6 or 8 times a day ;
Brown: 2 or 3 hours a day; observed picketing there 6, 8, or 10 times a day;
Duncan: 2 or 3 hours a day ; observed picketing there about 6 times a day ;
Hayes: 3 to 4 hours a day ; pickets always there when he was ;
Crews : 2 to 3 hours a day ; no testimony on observing pickets ;
Kitchen: Only a little time at terminal night and morning , no testimony on observ-
ing pickets ;
Scott ( trailer driver who occasionally does pickup and delivery work ) : Whose testi-
mony concerns only his maximum of 10 round trips a day as trailer driver.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dicated in other cases, the fact that the Union chose to picket Brown's
trucks at the situs of neutral employers, even though Brown had a
permanent place of business to which the drivers of its trucks returned
a number of times each day, is alone sufficient to support a finding
here that an object of the picketing was to induce employees of the
neutral employers to cease handling Brown freight and to force the
neutral employers to cease doing business with Brown.' Moreover,
I regard my colleagues' position here as departing from their own
position expressed in Plauche at the time they overruled Washington
Coca Cola, namely, that they would in the future ". . . consider the
place of picketing as one circumstance, among others, in determining
an object of the picketing." Plauche Electric, cited supra, at 254.
Unlike the situation in Plauche, where the primary employer had a
shop at which his employees reported for a few minutes at the begin-
ning and end of the working day, here the primary employees spent
a good portion of each day at their employer's premises. This being
the case I fail to understand my colleagues' refusal to apply their
reservation in Plauche to the instant case; for it is apparent that, as
the Union could and effectively did reach Brown's employees at
Brown's terminal, the circumstance of picketing at the secondary
premises becomes a factor of overriding significance in establishing
that an objective of the picketing was to involve neutrals, i.e., that it
was in fact directed also at the secondary employers and their
employees.
In any event, there are additional factors establishing that the
picketing at the secondary premises was directed beyond Brown and
was secondary in character. Thus picket Boles visited Paul H.
Norris, Sr., owner of Atlanta Warehouse and Distributing Company,
a secondary employer, and asked him not to do business with Brown.
Although such a request, standing alone, is not violative of the Act, it
is evidence of an unlawful object. In addition, the pickets made sig-
nificant statements, such as (1) they "were picketing to hurt Brown's
business." (2) "They had 80 cars of pickets they were going to put
on them the following Monday" because Brown was getting too much
freight. (3) "I wish I had known that you (a Brown driver) was
going to Kraft Foods . . . because they hated a bunch of pickets at
Kraft Foods like a hive of bees." Furthermore, my colleagues brush
aside eight or nine such statements of pickets revealing an unlawful
objective as de minimis. I know of no case in which that doctrine
has been applied in a secondary boycott situation, and I cannot con-
5 Brewery and Beverage Drivers and Workers , Local No 67 , International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Washington Coca
Cola Bottling Works, Inc ), 107 NLRB 299; see also my dissent with Member Rodgers in
IBEW, Local Union 861, et at. (Plauche Electric, Inc ), 135 NLRB 250, and Member
Rodgers' dissent in United Plant Guard Workers of America (Houston Armored Car
Company, Inc), 136 NLRB 110.
TRUCK DRIVERS AND HELPERS LOCAL UNION 728, ETC. 595
ceive that such doctrine can be applied to statements which reveal the
object of admitted conduct. Moreover, even assuming the doctrine
could be applicable, it is in my opinion a misuse of the de minimis prin-
ciple to apply it to the large number of statements involved herein.
There are also other incidents shedding light on the purpose of the
picketing. Thus, when a union organizer was asked by a secondary
employer whether the picketing was directed to secondary employers,
the union organizer merely smiled and referred the question to the
former's superior. Moreover, when a work stoppage of secondary
employees, members of the Union, occurred, neither the pickets nor
the union representative in charge told the employees to return to
work. Finally, the pickets recorded the license numbers of trucks
driven by secondary employees, members of the Union, working be-
hind the picket line, thus indicating to them that the picketing was
directed at them. Although the majority opinion suggests that the
Union had another purpose in recording the license numbers, I regard
as significant the fact that such purpose was not communicated to the
secondary employees either orally, or in the union pamphlet distrib-
uted to explain the picketing, or otherwise.
When the totality of the foregoing evidence is considered as it
should be, I am persuaded and would find that the Respondent's
picketing was in fact directed to secondary employers and their em-
ployees as well as to the employees of Brown. I agree with the
Charging Party that, despite the Union's carefully worded printed in-
structions to the pickets and other publicity, and apart from whether
or not it complied with Moore Dry Dock criteria, the picketing here
was illegal because the Respondent, in fact, as revealed in the evidence,
sought to enmesh neutrals.
As the picketing induced secondary employees to refuse to perform
services and included, as an object thereof, forcing secondary em-
ployers to cease doing business with Brown, I would conclude that
the Respondent violated Section 8(b) (4) (i) and (ii) (B) as alleged
in the complaint.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on July 25, 1962 , by Brown Transport Corp ., herein
referred to as Brown or the Charging Party, the General Counsel of the National
Labor Relations Board , hereinafter referred to as the General Counsel' and the
Board, respectively , by the Regional director for the Tenth Region (Atlanta,
Georgia ), issued his complaint dated August 30, 1962, against Truck Drivers and
Helpers Local Union No . 728, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, hereinafter referred to as the Union or
Respondent.
The complaint alleged that Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8(b) (4) (i) and
This term includes the attorney appearing for the General Counsel at the hearing
727-083-64--vol. 144-39
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(ii) (B) and Section 2(6) and (7 ) of the National Labor Relations Act, as amended,
herein called the Act. Copies of the charge, the complaint, and notice of hearing
thereon were duly served upon Respondent and Charging Party.
Respondent duly filed its answer admitting certain allegations of the complaint
but denying the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Atlanta, Georgia, November 5 through
10, 1962, before Trial Examiner Thomas S. Wilson. All parties appeared at the
hearing, were represented by counsel, and were afforded full opportunity to be heard,
to produce , examine , and cross-examine witnesses , to introduce evidence material
and pertinent to the issues, and were advised of their right to argue orally upon the
record and to file briefs and proposed findings and conclusions or both . Oral argu-
ment at the close of the hearing was waived. Extensive briefs were received from
General Counsel, Brown, and Respondent on January 7, 1963.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
Brown Transport Corp. is, and has been at all times material herein, a Georgia
coporation maintaining its principal office at Atlanta, Georgia, and is engaged as a
common carrier by motor vehicle in the interstate transportation of freight. During
the past calendar year , which period is representative of all times material herein,
Brown received in excess of $50,000 from the interstate transportation of freight.
R.C.A. Truck Lines, Inc., Dixie Ohio Express, Hoover Motor Express Co., Inc.,
herein called R.C.A., Dixie, and Hoover, respectively, maintain terminals in Atlanta,
Georgia, and are, and have been at all times material herein , engaged as common
carriers by motor vehicle in interstate transportation of freight. During the past
calendar year each of these employers received more than $50,000 from the inter-
state transportation of freight.
Rexall Drug & Chemical Co., Southeastern Industries Co., and Seiberling Rubber
Co., herein respectively called Rexall, Southeastern, and Seiberling, are business
enterprises with offices and places of business in Atlanta, Georgia. During the past
calendar year, Rexall and Seiberling individually shipped from their places of business
located in the State of Georgia products valued in excess of $50,000 directly to
other States. During the past calendar year, Southeastern, at its Candler warehouse
operation , received gross rents in excess of $250 ,000, of which in excess of $20,000
was received from employers engaged in interstate commerce.
The complaint alleged, Respondent's answer admitted, and I find, that all of said
employers are engaged in commerce within the meaning of the Act.
H. THE RESPONDENT
Truck Drivers and Helpers Local Union No. 728, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi-
zation admitting to membership employees of Brown.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. Preliminary statement
This is round three of what presently promises to be a never-ending battle before
the Board between the parties named in the caption hereto.
Round one commenced May 2, 1961, before Trial Examiner Reyman and ended-
to date-with his Intermediate Report dated August 25, 1961.
Round two was fought out before Trial Examiner London commencing July 18,
1961, and ending with the Board's decision issued January 31, 1963, 140 NLRB 954.
In between there were apparently a few minor skirmishes at the Regional Office
level.
Essentially rounds one, two, and three have all been part and parcel of the same
dispute, albeit each dealt with a separate and distinct phase thereof.
Round one dealt with a hot-cargo clause under Section 8(e). Round two had
to do with the refusal to bargain and the discriminatory closing down of Brown's
Atlanta terminal.
TRUCK DRIVERS AND HELPERS LOCAL UNION 728 , ETC . 597.
And now round three concerns itself with the legality , or illegality , of the Union's
ambulatory picketing of Brown trucks which followed another breakdown of the
negotiations between the parties in April 1962.2
2. Round three
Sometime after the issuance of Trial Examiner London's Intermediate Report
on October 24, 1961 , Brown began reinstating a number of its striking employees
until all but three had been returned to work. In January 1962 , Respondent and
Brown reopened negotiations looking toward an agreement . These negotiations
continued through February , March , and the early part of April when once again
negotiations broke down . On April 30, 1962, the Union again went on strike
placing pickets around Brown 's Atlanta terminal . Approximately 2 weeks later
Respondent began its campaign of ambulatory picketing of the Brown Trucks.
Before commencing ambulatory picketing Robert C. Cook , president and business
agent of Local 728, issued oral instructions similar to the following written instruc-
tions given to all the Union 's pickets:
INSTRUCTIONS TO PICKETS
The National Labor Relations Act permits us to picket the employees of
the company that we are striking , but does not permit us to induce employees
of other carriers not to handle the freight of the carrier who is on strike. Most
of the pick-up and delivery drivers of Brown Transport Corporation spend
by far the greater portion of their time away from Brown Transport Corpora-
tion's terminal . Therefore, to have the opportunity to reiterate this message
to the pick-up and delivery drivers of Brown Transport Corporation , it is neces-
sary that we follow the trucks of Brown and picket the drivers of those trucks
at the places where they are working the greater percentage of their time.
However, while we may legally picket the employees of Brown Transport
Corporation at the terminals of other carriers . we cannot legally do anything
that would be an inducement of employees of the other carriers not to handle
Brown Transport Corporation's freight.
It is, therefore, imperative that you follow these instructions:
You will be given a letter directed to the interchanging carriers upon whose
premises deliveries are being made or freight is being picked up by the em-
ployees of Brown . This letter includes a request that you be permitted to go
upon the premises of the carrier so that you may picket the driver of the
Brown truck as close to the truck and to said driver as possible. In any in-
stance in which a driver of Brown is being picketed at the premises of any
carrier other than Brown , you will, before picketing said driver , give said
letter to someone in authority at said interchanging carrier's terminal (prefer-
ably the terminal manager ), and, if permission to come upon the property is
granted, you will come upon the premises and picket as close to said truck
and driver as possible . You will not, in that event , engage in picketing at
the entrance to the property or anywhere else upon or around said property.
In the event you are not granted permission to come upon the property
for the purpose of picketing in close proximity to Brown 's truck, you will
picket just outside the property at the entrance closest to the place where the
freight is being picked up and delivered . In that event , said entrance is the
only place at which you will engage in picketing.
Under no circumstances shall you make any statement or remark of any
kind to any persons at the premises at which said picketing is being conducted.
Do not even say: "good morning ." Any statement which you might make,
even if said statement is entirely proper, might be misinterpreted.
It is absolutely imperative that you never picket at the premises of any em-
ployer other than Brown Transport Corporation , except while employees of
Brown Transport Corporation are actually upon the premises . We are en-
gaging in this picketing for the purpose of bringing our message home to the
employees of Brown. It is apparent that if an employee of Brown is not upon
the premises at the time of said picketing there is no reason for said picketing.
You will be given a picket sign which will make clear to those seeing it
that the message of the sign is directed only to employees of Brown Transport
2 In the preliminary statement of its brief in the instant matter , Charging Party states
that the Union , Respondent here, is "no pristine virgin" in labor relations While this
statement is true so far as it goes , it would have been more accurate to say that "there
are no pristine virgins involved here "
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation. The name of Brown Transport Corporation will be just as
prominent upon the sign as any other language upon the sign. Said picket
sign is, of course, the only picket sign that is to ever be carried.
Do not wave the picket sign at any persons, but simply carry the picket
sign back and forth in the normal manner for picketing.
It is imperative that all of the above instructions be followed to the letter.
Even if you are asked a question or someone seeks to draw you into conversa-
tion, remain absolutely silent. You will be given a pamphlet. In the event
someone asks you a question about the picketing just hand him one of the
pamphlets. Do not hand it to anyone unless you are asked a question about the
picketing. You will also be given a piece of paper containing the following
language: "I have been instructed to say nothing while near this terminal."
In the event someone persists in trying to engage you in conversation notwith-
standing your giving him the pamphlet, hand him said sheet with said message.
Do not hand it to anyone unless this happens.
The letter referred to in the instructions above which the pickets were to give
to the management of concerns located on private property where Brown Trucks
might be parked, making pickups or deliveries was on Respondent's stationery and
read as follows:
Truck Drivers & Helpers Local Union No. 728 is on strike against Brown
Transportation Corporation because of unfair labor practices.
The truck drivers of Brown Transport Corporation spend a very small por-
tion of their time at the Brown Transport Corporation's terminals, most of
their working day being spent in making deliveries and picking up freight.
In order to emphasize the message of our picket sign and our strike to said
employees it is necessary that we take our picket sign where said employees
are working and picket said Brown Transport Corporation drivers where we
find them. It is, therefore, necessary for us to picket the Brown Transport
Corporation driver while he is on your premises.
However, this picketing is directed to the employees of Brown Transport
Corporation only and not to your employees. In view of this fact, we request
permission to come upon your property so as to picket as close to the Brown
Transport Corporation driver as possible. If this permission is denied we
will, of course, be required to picket as close as possible, which would be
just outside the entrance to your property.
Any picketing in which we engage will be for the purpose of forcing or re-
quiring Brown Transport Corporation to cease said unfair labor practices. The
picketing will be for no other purpose; we seek no action other than com-
pliance by Brown Transport Corporation with reasonable demands.
If our picketing or other activity has any incidental effect other than that of
securing a reasonable collective bargaining contract with Brown Transport
Corporation, and if you will call this effect to our attention we will take such
appropriate steps as are available to us to limit such effect without, however,
abandoning our rights of publication and picketing as guaranteed by the law.
In the event that any picketing of Brown takes place in the vicinity of your
place of business, be assured that it will be conducted in strict conformality
with the standards for primary ambulatory picketing as set forth by .the NLRB
in a series of cases beginning with Moore Dry Dock Company, 92 NLRB 547,
27 LRRM 1108.
And the pamphlet for questioners referred to in said instructions read as follows:
I have been instructed to say nothing while near this terminal.
Truck Drivers & Helpers Local Union No. 728 has a dispute only with
Brown Transport Corp. Said union has no dispute with the Companies with
which Brown Transport Corp. is interchanging freight or otherwise doing busi-
ness. The drivers for Brown Transport Corp. spend most of their time away
from Brown's terminal, making it necessary for us to follow the drivers and
picket said drivers wherever they work.
However, this picketing is directed only at the drivers of Brown Transport
Corp. and we are not picketing any company at which the drivers of Brown
Transport Corp. are engaged in picking up or delivering freight.
Two union men were assigned to each automobile containing one picket sign, one
man to drive, and the other to picket wherever a Brown truck might stop. According
to the nonstriking Brown employees this picket sign read, "Brown Transport, Inc.,
or Company, unfair to members of Truck Drivers and Helpers Local 728, Atlanta-
Savannah." According to the strikers the picket signs read, "Brown Transport, Inc.,
or Company, unfair to members of Truck Drivers and Helpers Local 728, Atlanta-
TRUCK DRIVERS AND HELPERS LOCAL UNION 7 2 8, ETC. 599
Savannah; this picketing is directed to the employees of Brown Transport Company
and to no one else." 3
Thus was the Union's ambulatory picketing campaign planned . And thus was it
carried out.
The Brown terminal was picketed throughout with a picket sign differing from
that quoted above. There is no claim made there that the picketing at the terminal
was illegal.
So commencing about 2 weeks after the 1962 strike began on April 30, the Union
daily sent out from 8 to 20 automobiles containing a driver and a picket with 1
sandwich board type picket sign together with mimeographed letters to secondary
employers and mimeographed statements to be handed out to casual conversationalists
at any picketing location. These cars located and followed Brown trucks on their
routes. Whenever the Brown truck stopped, whether it was to make a pickup or
delivery or even to obtain refreshment for the Brown driver, the picket from the
car would proceed with his sandwich board picket sign hanging around his neck
to picket as close to the parked Brown truck as possible? The picketing continued
until the Brown truck moved on to its next location at which time the picket with his
sign returned to his car with driver in order to follow the Brown truck to his next
stop where the whole proceeding was again repeated . It was estimated that each
Brown truck followed averaged some 20 such stops per day.
On the occasions when Brown trucks stopped on private property, the picket would
present the operator of the property with a copy of the letter quoted above.
In the event such secondary employer gave the picket permission to picket on his
property, the picket would proceed to picket adjacent to the Brown truck. But when
such permission to enter was denied , then the picket would take up his picket duties
at the entrance to such private property. In either case the driver of the car would
remain in or about his automobile and did not engage in any picketing.
When the secondary employer permitted the picket on his property so that picket-
ing could be carried on right next to the Brown truck, the other operations then
being carried on at this secondary employer's place of business appear practically
without exception to have continued without interruption.
When, however, the secondary employer refused such permission and the picket
proceeded to perform his picket duties at the entrance way to such private property,
as he did, then occasionally there would be some "confusion" or stoppage of work
or refusals by third party drivers to enter or leave the secondary employer's property
because of the picket. As soon as the Brown driver left the premises, the picket
car left also with driver and picket and whatever "confusion" had existed ended.
On one occasion at least the operator of the secondary premises ordered the Brown
driver to remove his truck from the premises. The picket left with him. And the
work at the premises resumed.
There were , as was to be expected , a couple of acknowledged incidents at second-
ary premises having more than one entrance when the Brown driver succeeded in
giving the pickets the slip unnoticed. On those very few occasions the pickets
continued to picket for a time when there was no Brown truck on the premises.
Admittedly, however, as soon as the pickets were informed that the Brown truck
had eluded them and was off the premises , the picketing immediately ceased . Other-
wise secondary premises were picketed only when and while a Brown truck was on
the premises.
In general the Respondent's picketing was carried on strictly in accord with the
union instructions noted above.
But the pickets, being only human, did on a very few occasions during this long
period of picketing deviate slightly from their written instructions. It is upon these
few deviations from instructions on which General Counsel and Charging Party seek
to prove a case of violation of Section 8(b) (i) and (ii) (B) against Respondent.
B. The claimed deviation
In view of all the other disagreements existing between the parties hereto, it is
refreshing to discover that they all appeared to be in accord on one point: That the
legality or illegality of Respondent's ambulatory picketing here is to be decided
upon the adherence or nonadherence of that picketing to the four criterias set forth
3 Admittedly the nonstriking Brown drivers had not bothered to read the sign too closely.
* Ultimately the Union was asked to, and did, cease picketing Brown trucks when their
drivers were lunching at restaurants. It was considered that the driver was then on his
own time.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547,5
plus a consideration of the fact that the Charging Party did have a permanent place
of business of its own which could have been picketed exclusively (International
Brotherhood of Electrical Workers, Local Union 861, et al. (Plausche Electric, Inc.),
135 NLRB 250).
The Charging Party's very able and imaginative counsel in his brief states the
Charging Party's position generally as follows:
It is the Charging Party's contention , and we respectfully urge to the Trial
Examiner , that this case involves a course of conduct on the part of Respondent
Union which , when shorn on its pious protestations of innocence in cunningly
conceived self serving declarations and maneuvers , presents nothing more nor
less than a conspiratorial scheme designed to impose a destructive but illegal
secondary boycott upon Charging Party, while at the same time attempting to
cloak and veil its unlawful scheme so as to make it look legal.
As the commencement of his "argument ," after having set forth the facts, said
counsel states : ". . . without arguing each detail , suffice it that we here enumerate
those things which , we submit, evidence a clear intention on the part of the Union
to bring pressure to bear on secondary employers through the inducement of second-
ary employees to engage in work stoppages , with the obvious objective of forcing a
cessation of the business relationships between Brown and these secondary
employers."
As this said enumeration raises every possible and conceivable piece of evidence
claimed to prove a violation of the Act, I will consider each point raised in such
enumeration in order so as to be certain not to omit any. It might be stated here that
the enumeration by Charging Party contains numerous points which General Counsel
apparently did not consider of sufficient importance to argue.
1. Charging Party's first point is that it had "a primary place of business where
all of the employees could be picketed and where the message printed on the picket
signs could be brought to the employees ' attention."
The answer to this contention is that this primary place of business was in fact
picketed throughout the strike. The evidence further proved that many, if not
most, of Charging Party's employees , especially the pickup and delivery drivers,
were at that primary place of business only to report in in the morning and to
check out in the evening while spending the remainder of their working day on the
road . The interchange drivers, on the other hand, did shuttle back and forth be-
tween the Charging Party's terminal and the interchange points many times a day.
But in view of the number of Brown 's pickup and delivery drivers and Respondent's
necessity to publicize its dispute with Brown to all the Charging Party's employees,
ambulatory picketing seems in this case to be justified, especially as the Charging
Party's business has been accurately described as a "business on wheels." See
Plausche Electric , Inc., supra.
2. The second point raised in the brief is that the Union "never utilized any of
the traditional organizing techniques" [listing them] in appealing to the nonstrik-
ing Brown drivers.
As Respondent was admittedly the bargaining agent and so recognized by Charg-
ing Party as late as the beginning of the strike on April 30 , 1962, there would seem
to have been little, if any, necessity of continuing an already successful organizing
campaign . The purpose of the Union in conducting ambulatory picketing of the
nonstriking Brown drivers was to appeal to such drivers to join the Respondent's
picket line and to cease driving for Brown. The evidence indicates that in one or
two instances this purpose was accomplished.
3. Charging Party's third point is that Respondent "failed to attempt to minimize
the effect of its secondary picketing upon other employers in that":
(a) Respondent continued to picket "when it was obvious that the Brown em-
ployees could not possibly observe the picket signs."
This did occur on occasions particularly when the operator of the property had
refused entry onto that private property to the pickets and particularly at the
Candler warehouse operated by Southeastern Tndustries which is such a huge area
crossed by a number of streets and covered with numerous buildings that frequently
the Brown truck was obscured from the vision of the picket stationed at one of the
two entrances to the area.
6 Those criterias are: "(a ) The picketing is strictly limited to times when the situs of
the dicpu-te is located on the secondary employer's premises ; ( h) at the time of the picket-
ing the primary employer is engaged in its normal business at the sites : and (d) the
picketing discloses clearly that the dispute is with the primary employer."
TRUCK DRIVERS AND HELPERS LOCAL UNION 728, ETC. 601
However, neither General Counsel nor the Charging Party claimed that Respond-
ent ever intentionally continued picketing at secondary premises when no Brown
truck was present. In fact the record discloses two instances where the Brown
truck successfully slipped out of the premises unnoticed by the picket. In each
of these instances the picket immediately ceased picketing when informed that
Brown truck had left the premises.
If ambulatory picketing of this type is legal, and the property operators refused
entry to the picket to picket next to the truck involved, then it would seem legitimate
that the picket could continue his picketing even with picketed truck out of sight
so long as that truck was on the premises.
(b) "They picketed on instructions from the Union always at the entrances to
any place of business."
This contention is a misstatement of fact. Respondent only picketed at the en-
trance to the property when denied permission to picket right next to the Brown
truck. When such entry is denied, picketing at the entrance way to the private
property is very arguably the closest place to the truck at which it is possible to
picket. To require the picket to march'at the closest place as a bird flies to the
picketed truck would lead to some absurd results. As for example, in this record
one picket at Atlanta warehouse would have had to picket upon a high bank deeply
covered in kudzu vines. This would also require a new and different picket loca-
tion every time the picketed truck moved to a new loading dock in such a place
as Candler warehouse. Furthermore oftentimes the picket sign would be so far
away that a secondary driver entering the premises would only see a picket sign
without being able to read and determine that it applied to a specific employer only.
(c) "The Union failed to make bona fide efforts to conduct their picketing as
reasonably close to the Brown employees and truck as possible." In this regard
Charging Party cites the fact that Respondent "failed to request such permission at
a number of places; and at many of those places where such request were made,
they were made to persons lacking any real authority to grant or deny any such
request."
One of the General Counsel's main points was that Respondent had failed to ask
permission to enter onto the premises of six operators.
The fact of the matter is that at one of these premises the Brown truck when
located at the dock involved had its motor to all intents and purposes on the street
property line so that in that instance the picket could, and did, place himself di-
rectly in front of the parked Brown truck on public property. In all probability
the picket never requested permission to enter such premises. There was no need.
In one instance the operator of the warehouse waved the picket off the premises
as he approached to present his letter requesting permission to enter.
In the other instances a management official of the operating concern did testify
that no request to enter was ever made of him but in each such instance the witness
had to admit that such request may have been made of another official. Under
these circumstances the testimony of the pickets who testified to having made the
request for such permission stands in effect undenied and, accordingly, I must
find that the request was made in the other four instances.
As for the last part of the Charging Party's contention dealing with "lack of
authority," it seems to me that, when Respondent has made its request to the dock
foreman or the person in apparent control thereof, the Union has done all that
can be logically required of it. As a practical matter it would seem that very few
pickets would have sufficient legal training to be able to determine who had "real
authority" and who did not. This part of the argument is highly legalistic but just
as highly impracticable.
(d) "Even where the Union had been given permission to come on the employer's
premises, they oftentimes continued to picket at the entrance (for instances, see
Hayes' testimony concerning Center Chemical Company) "
The first comment I must make in regard to this contention by Charging Party
is that the use of the word "oftentimes" appears exaggerated in view of the citation
of one doubtful incident. Hayes, a handsome young man, whose wife had also
recently secured employment from Brown, and being a replacement driver for a
striker, was not a totally unbiased witness. As there are a number of instances in
this record where permission to enter was either given or revoked by the operator
by telephone, it is difficult to know just how Hayes could possibly have known
of a telenhonic revocation of that permission as Cook testified had occurred with-
out denial.
As instances of sort mentioned above, if proved, would just about have clinched
Charging Party's contention regarding the illegal purpose of the picketing it is
interesting and noteworthy that Charging Party has been able to call attention to
only one such isolated instant, if believed.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The instance cited was denied by the picket . I must credit the denial under the
circumstances.
(e) "The Union failed to instruct secondary employees who engaged in work
stoppages to go back to work."
While it is true that the pickets did not verbally instruct such secondary employees
to return to work and perhaps the secondary employees did not receive a copy of the
small leaflet from the picket , still the picket sign carried by the picket clearly indi-
cated that only Brown Transport Corp . was being picketed.
Actually in this record there are a few instances where work stoppages did occur
in the first few weeks of the ambulatory picketing . These generally occurred at
interline freight depots where permission to enter had not been granted. Some of
the operators objected to Cook who , after talking with the Truckers Association's
representative , changed the emphasis of the ambulatory picketing from the Brown
interline drivers to the pickup and delivery drivers on the ground that the inter-
change drivers made frequent trips to and from the Brown terminal each day so that
the Union 's message was carried to them through the picket at the terminal whereas
many of the pickup and delivery drivers saw the pickets at the terminal only once
or twice a day, if at all. Work stoppages thereafter were rare, if not nonexistent.
This change , therefore , thus seems to disprove , rather than prove, the contention of
the Charging Party.
4. "The Union caused pickets to be stationed at more than one entrance to the
location of the Candler Warehouse , effectively bottling up the warehouse truck
traffic, with the obvious purpose of attempting to force those companies who were
doing business in the Candler Warehouse premises to `cut off Brown ' in an effort
to relieve them of the pressures exerted by the multi -gate picketing . The Candler
Warehouse incident is a flagrant and arrogant undertaking by the Union in a desperate
move to cut Brown out of its most lucrative industrial area."
The Charging Party cites two episodes occurring on June 21 and 22, 1962, when
union pickets did appear at both entrances to that large area containing numerous
warehouses leased by Southeastern to numerous commercial concerns and known
as the Candler warehouse . There are only two entrances (or exits ) to Candler
warehouse : One from Murphy Avenue and the other from Stewart Avenue.
In the early part of the ambulatory picketing campaign Candler warehouse per-
mitted entry by the pickets so that they could , and did , picket close alongside the
Brown trucks . During this period there was no confusion at Candler warehouse.
On or about May 17 and 18, Wiggins , manager of Candler warehouse , withdrew
the permission to enter previously given to the pickets. Hemmings , Brown's opera-
tions manager, admitted that he had had two conversations prior to June 21 with
Wiggins regarding the picketing on the Candler warehouse property . Hemmings
was particularly vague about dates throughout his testimony.
Generally there is only one Brown truck on the Candler premises , a truck which
spends most , if not all, the day there . On occasions when there is more freight
than usual Duffey, the regular Brown driver at Candler , would telephone his dis-
patcher that his truck was full and the dispatcher would send an empty truck over
with another driver who would swap trucks with Duffey . On exceptionally heavy
days Brown would have two trucks and drivers at Candler.
Despite the withdrawal of permission to enter on May 18 , nothing untoward
occurred at Candler warehouse until June 21. On the afternoon of that day, at a
time when there were two Brown trucks on the premises, the Union did have a picket
at each entrance to the warehouse area. As Charging Party pointed out in its
brief, this was one of the two or three occasions when there were three union men
in one picket car-this time due supposedly to the fact that picket Smallwood's
automobile had to be repaired.
With pickets stationed at each entrance there was some confusion at those en-
trances among the drivers of the other freight lines so that there were some trucks
parked at both the Stewart and Murphy Avenue entrances . Some trucks merely
disregarded the pickets while others stopped . However , on this occasion this
"confusion" appears to have been short lived because driver Duffey who telephoned
the report of the confusion to Hemmings was able to catch Hemmings still at his
office with a subsequent report that the confusion had been cleared up before
Hemmings was able to leave for the Candler warehouse . This may have been due
to the fact that the pickets were instructed only to picket when a Brown truck was
in view of either entrance . The pickets at each entrance were from the same
picket car.
Driver Duffey testified that in the Candler warehouse area a driver from the
Johnson Truck Lines was notifying the other secondary drivers that there were
pickets on each entrance . There is no evidence that this driver was acting at the
instance or on the orders of the Union , if the event actually occurred.
TRUCK DRIVERS AND HELPERS LOCAL UNION 728, ETC. 603
In fact this record is devoid of any evidence that Respondent exerted any pressure
of any sort, other than the picket sign itself, on any driver or any secondary
employer.
However the next day, June 22, much the same thing occurred when Duffey
entered the warehouse premises from Murphy Avenue where a picket was placed.
Duffey then moved the Brown truck to the Stewart Avenue end so that organizer
Vaske, who was driving that day again with two pickets, took the second picket over to
the Stewart Avenue entrance where he began picketing. Again there were two or
more Brown trucks in the area. There was a rather long period this day when
pickets were patrolling both Stewart and Murphy Avenue entrances despite orders
only to picket when the Brown truck was in sight. A number of secondary trucks
were lined up at each entrance.
On this occasion Hemmings and Attorney Elarbee arrived on the spot during the
"confusion." They ordered Vaske to withdraw a picket from an entrance on the
grounds that blocking both entrances with pickets was "illegal." Vaske informed
Hemmings that Hemmings should speak to Vaske's superior, Cook, and then, accord-
ing to Hemmings, "smiled." 6
That evening Cook held a special meeting with his pickets regarding the method
whereby the Candler warehouse could be legitimately picketed especially as there
are many parts thereof where a truck cannot be seen from either entrance. It was
then decided to picket only one of the two entrances to the warehouse property and
that, if there were any question about the continued presence on the premises of the
Brown truck, the pickets were to cease picketing and seek another Brown truck to
follow. There has been no "confusion" at Candler warehouse since.
This seems an eminently fair solution to this problem and hardly one which
justifies the descriptive clauses used by Charging Party nor its conclusion that this
episode "proves" the illegal purpose of the picketing. It seems that, if ambulatory
picketing is legal, then so long as the pursued truck remains on the premises, the
picket is entitled to picket as close as possible thereto, i.e., at the entrance way,
when entry has been denied, even though two such trucks have entered the separate
gates and thus both entrance ways are picketed.
In addition, this voluntary solution appears to confirm Respondent's contention
that it was interested in picketing the Brown drivers-not the secondary employees
or employers.
It seems also that Brown itself may have been more interested in playing games
and creating evidence with which to secure an injunction against the Union than in
assisting in reducing the effects on secondary parties of that picketing. This is not
the only instance in this record where Brown drivers attempted to play games with
the pickets. It seems possible that Brown with an unusual number of trucks on the
premises on these two occasions after inducing Wiggins to withdraw permission from
the pickets to enter was attempting to entrap the Union or to induce a violation in
order to justify an injunction and thus eliminate the pickets entirely.
5. Charging Party points again with horror to a similar incident which allegedly
occurred at the terminal of Huber and Huber.
On this occasion Brown driver Faulkner claimed that Respondent picketed both
the entrance and the exit to the terminal for 31/2 hours thereby causing a work stop-
page of that length of time by Huber and Huber employees and other drivers on the
premises. Admittedly there were two Brown trucks on the premises, the second, in
which Faulkner was driving, entered and departed from the terminal a couple times
before finally backing into the dock.
However, the Huber and Huber operations manager, an unbiased neutral, testified
credibly that there had been only two work stoppages at Huber and Huber throughout
the whole period of picketing, one lasting about 25 minutes while two Brown trucks
were on the premises and the other lasting only so long as it took the general
manager and himself to get to the one gate then being picketed and invite the picket
to perform his duties on the premises. Penn, the operations manager, was not even
sure that both entrances and exit had been picketed simultaneously on either
occasion.
Penn's testimony bothered the Charging Party so much that it solved its dilemma
by coming to the conclusion that Faulkner and Penn had described two different
occasions, as Penn admittedly was absent occasionally from the premises. However
it seems highly unlikely that Penn would not have known of a 31/2-hour stoppage at
his terminal. The more likely solution is that Faulkner exaggerated-and was
caught at it.
6 Charging Party makes much of Vaske's "smile" on this occasion While Vaske is no
Mona Lisa, that lady has at least taught us that there are occasions when a smile can be
enigmatic.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently there have been no further incidents at Huber and Huber.
6. "Business Agent Hurt effectively warned a Benton driver that he had better
not work behind a picket line again , by telling him that `It's all right this time, but
don't let it happen again.' "
General Counsel 's witness , Brown driver Crews, testified that as he pulled up
behind a Benton truck at the exit from the C & H Fan Company warehouse after
both drivers had loaded their freight during the time Crews ' truck was being picketed
on the premises , he heard Business Agent Hurt say to the Benton driver, "It's all
right this time, but don't let it happen again ." From this statement which , if heard
with both truck motors going , Charging Party would have the Trial Examiner imply
that Hurt had previously and unheard by driver Crews "effectively warned a Benton
driver that he had better not work behind a picket line again ." I believe that if
he drew the requested inference , he would be engaging in surmise , suspicion, and
conjecture . Accordingly , I accept the denials by both Hurt and the Benton driver.
7. "The Union instructed its pickets to take down numbers of trucks that worked
behind picket lines. We submit that this was coercive , per se, in light of the fact
that the Union did not offer any explanation to the other union drivers as to why
the truck numbers were being taken down."
I have, on two or three occasions in the past , found that the taking down of such
license numbers by union representatives constituted an unfair labor practice under
the circumstances there existing However, I do not believe that this should consti-
tute an unfair labor practice per se here or in other cases.
Respondent admitted frankly that the license numbers of trucks working behind
some of its picket lines had been entered upon the picket's log. It explained further
at the hearing that this was done deliberately in order to be able to produce evidence
at any injunction proceeding which might occur to prove that union members had
worked behind its picket lines and had not been disciplined in any way , shape, or
form . Cook explained that such evidence would have benefited the Union in other
prior injunction proceedings.
As noted heretofore , this record is devoid of any evidence , other than this, of any
threats, inducement , or encouragement by Respondent to any of its members or other
drivers to cease working behind its ambulatory picket lines. Nor is there even
a suggestion of punishment meted out to drivers for having done so . Obviously,
therefore , Respondent was recording these license numbers on the picket log sheets
for purposes other than the coercion of its members and other drivers.
Accordingly I must find that Respondent did not commit any unfair labor practice
by recording such license numbers under the facts involved here.
8. "On top of all of the above , the Union threatened the Charging Party with
picketing of its customers during negotiations and disclosed its true objective at
that time."
This refers to evidence given by Isaac C. Hemmings , operations manager for
Brown, during which Hemmings testified as follows:
. . . It has been a good while-and we were getting right along towards some
agreement . We had a tentative agreement made, and Mr. Cook came into-I
think it was the meeting before the last meeting [April 16] that we held and
exhibited a new attitude-quite a change in attitude . He in the discussion at
that meeting stated that there was not any use to negotiate any further; that
he had the right now to follow our trucks and picket , and with that right, that
he could break any company , and that he could only accept a contract, such
as the Area Agreement which they had with all the other carriers in this area-
which we had already negotiated quite some little piece away from.
Q. Was that the last meeting, Mr. Hemmings?
A. No. We sent a telegram to Mr. Cook after that meeting, requesting
another meeting which was held and we kind of rehashed things and weren't
able to get anywhere. And they subsequently struck,
Cook denied ever having made this statement to Hemmings or to anyone else.
Hemmings ' testimony in this regard is notable for the fact that he was able to
recall this alleged statement by Cook verbatim but was able to recall little , if any-
thing, else about the last two negotiations meetings before the beginning of the
strike. Cook, on the other hand, recalled a number of the matters still under
negotiation at that time in addition to the fact that he had not made the statement
attributed to him. Charging Party's brief attributes Cook's attitude as described
by Hemmings to the decision of the Board in the case of United Plant Guard Workers
of America (Houston Armored Car Company, Inc.), 136 NLRB 110, issued on
March 6, 1962. Respondent 's brief points out that the real change in the law
occurred at the time of the Board's reversal of IBEW, Local 867, et al. ( Plauche
Electric, Inc.), 135 NLRB 250, on January 12, 1962 Cook negotiated in good faith
TRUCK DRIVERS AND HELPERS LOCAL UNION 728; ETC. 605
subsequent to either decision. Furthermore the record shows that there were a
number of unresolved issues between the parties, including the reinstatement of
three of the 1961 strikers, on which the parties were still far apart when the strike
began on April 30, 1962. If the change in the law referred to was responsible for
Cook's alleged change in attitude on April 16, it is somewhat remarkable that the
change became apparent so long after the law had changed.
Cook is an experienced negotiator and a shrewd one. It would thus appear to
be out of character for him to plead guilty to the illegal motivation of a strike still
some weeks in the future.
I accept Cook's denial of the fact that he made this statement attributed to him
by Hemmings.
(9) "The Union disclosed its true objective and modus operandi by concentrat-
ing on truck terminals at the beginning of the strike; but when this failed, they
switched to the customers of the Charging Party. The obvious reason they quit
picketing the terminals was that the union members were having to handle the
freight by reason of a previous court-approved stipulation and it was not hurting
Brown sufficiently enough to `knuckle him under.' "
The facts here show that for the first couple of weeks of picketing the Union did
concentrate on following Brown trucks to interchange truck terminals, that the
pickets did cause a number of work stoppages at such terminals, and that, after the
first couple of weeks, the Union shifted tactics by concentrating more on following
the pickup and delivery drivers of Brown as they made their rounds.
The Charging Party speculated in its brief that this change in strategy was caused
by the fact that, due to a court stipulation in another case involving the same parties,
the union members employed in and around the interchange terminals were not
being paid during these work stoppages so that the Union changed tactics to prevent
monetary loss to its own members.
Even if we assume the truth of this speculation, it fails to prove any illegal objec-
tive on the part of the Union. In fact, if anything it indicates the reverse- A de-
sire to prevent injury to third party employers and employees.
The uncontraverted evidence disclosed that Cook received a number of reports
of "confusion" occurring at interchange carrier terminals and had conferences with
their representatives in efforts to eliminate or minimize such occurrences. Many
of such operators, like the Huber and Huber instance noted above, reversed their
previous stand and permitted the pickets to enter upon the premises so as to be able
to picket close by the Brown trucks with the result that work stoppages seldom, if
ever, occurred thereafter.
The facts further prove that Respondent soon became aware of the fact that
those Brown interchange drivers were entering and leaving the Brown terminal
many times per day and thus passed the union pickets with their signs frequently
during their work whereas the more numerous Brown pickup and delivery drivers
would be faced with the union pickets and signs at the terminal oftentimes only
twice a day, at the commencement and end of the workday. These pickup and
delivery drivers would really become aware of the Union's dispute only if they
personally were picketed on their routes. Their routes, of course, took them to
the Brown customers. Consequently there was a sound, logical reason for picket-
ing the more numerous pickup and delivery drivers rather than concentrating on
the Brown interchange drivers.
(10) "The union agents blew their automobile horns and waved their picket signs
to attract the attention of secondary employees to their picketing, allegedly of the
Brown trucks."
General Counsel makes a big point of this also. He further mentions the testi-
mony from several of the Brown drivers that a picket or two whistled on the picket
line.
This testimony by the nonstriking Brown drivers was denied by the pickets named
by them.
The denials by the pickets of engaging in any such conduct was corroborated by
every employer witness who took the stand. None of these employer witness saw
or heard anything untoward committed by the pickets. Accordingly, I credit the
denial by the pickets.
(11) "The Union picketed primarily at places where other union freight lines,
trucks and employees were present."
(12) "The Union failed to picket at times when they could have picketed the
Brown employees if there were no other employees around "
Charging Party appears to be somewhat inconsistent in these two allegations It
complains when it is picketed. It complains when it is not picketed.
With picketing over such an extended period of time as occurred here, T am
sure that Charging Party could find isolated instances to prove each of the incon-
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sistent contentions. However, this record does not permit the use of the word
"primarily" as it was used above. The record discloses that for a period Brown
trucks were picketed when parked on the street while the driver had lunch, while
the Brown driver walked across the street to discover if he had any freight to pick
up and even when the Brown driver was merely wasting time between calls. There
is one instance in the record where admittedly the pickets did not get out of the
picket car during a rainstorm. There is another instance where pickets decided
against picketing a Brown truck late one afternoon when it was incapacitated with
a flat tire.
These isolated instances do not prove the Charging Party's case.
(13) In this specification Charging Party refers to eight statements supposedly
made by pickets to show "the true concern of the Union and its pickets."
For Charging Party to be able to cite only eight statements, many of which are
enigmatic and some indicate mere human curiosity, by pickets during the course
of picketing from April 30 to August 26, and from a record of 1,140 pages cover-
ing 6 days of testimony, indicates to me that the pickets were, in fact, following
their instructions not to talk. It is amazing to me that men engaged in an economic
struggle with their employer could have made so few comments in regard to that
economic struggle.
I believe that these statements may be disregarded as de minimis.
(14) Here Charging Party refers to some rebuttal testimony offered for the pur-
pose of impeaching the credibility of Respondent's witness, Cook, which had been
stricken at the hearing.
I see no reason to make any finding of fact in regard thereto-nor to change
his ruling made at the hearing.
(15) "Perhaps one of the clearest indications of the Union's true purpose was
disclosed when Assistant Business Agent Joe Vaske failed to deny that his true
purpose in picketing both entrances to the Candler Warehouse was to stop the trucks
from coming in and out."
The facts show that Hemmings asked Vaske at Candler warehouse "was it his
[Vaske's] intention to stop the trucks from coming in and out of the whole ware-
house?" Hemmings then testified that Vaske did not answer but "he [Vaske] just
smiled."
If, as Charging Party claims, "perhaps one of the clearest indications of the
Union's true purpose" is disclosed by this "smile," then, with the example of the
Mona Lisa before us, this case should be dismissed.
(16) "The Union's objective was clearly disclosed when picketer Boles visited
Paul H. Norris, Sr., and asked him not to do business with Brown."
Such a request, not accompanied by threats, coercion, or restraints, is no viola-
tion of the Act.
So we get down to the proposition as to whether ambulatory picketing is legal
or not. As Charging Party, quite correctly points out, the Board's recent decisions
in Houston Armored Car Company, Inc., 136 NLRB 110, and Teamsters, Chauf-
feurs & Helpers Union, Local 279 (William S. Wilson, d/b/a Wilson Teaming
Company), 140 NLRB 164, appear to put this question to rest in favor of its
legality.
That being the case and compliance with the Moore Dry Dock criteria is to be
the determining factor as to legality of such ambulatory picketing, I must find that
Respondent here has complied with those criteria as closely as was humanly pos-
sible. The exceptionally few, and unimportant, deviations therefrom can be con-
sidered as no more than, what the Board so often refers to in C cases, "isolated in-
stances." I will, therefore, recommend that this case be dismissed in its entirety-
with the personal admonition to the parties here that this feud has gone on at least
long enough : there should be no round four.
On the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Truck Drivers and Helpers Local Union No. 728, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is 'a labor or-
ganization within the meaning of Section 2(5) of the Act.
2. Brown Transport Corp. is engaged in commerce within the meaning of Sec-
tion 2(7) of the Act.
3. Respondent Union has not engaged in any unfair labor practices within the
meaning of the Act.
I recommend that the complaint in the instant matter be dismissed in its entirety.