Truck Drivers Local 649, Teamsters

National Labor Relations Board - Board Decisions

May 13, 1974

210 N.L.R.B. 580 (N.L.R.B. 1974)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truck Drivers Local 649, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and
Helpers of America and Forest Rowan Concrete,
Inc. Cases 3-CC-797 and 3-CP-219
May 13, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On December 28, 1973, Administrative Law Judge
John G. Gregg issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings and
conclusions 1 of the Administrative Law Judge as
modified herein.
The General Counsel has excepted to the Adminis-
trative Law Judge's failure to find that Respondent's
picketing violated Section 8(b)(7)(C) of the Act, as
well as Section 8(b)(4)(B). We find merit in this
exception.
According to the credited testimony of Bell, vice
president and general manager of one of the neutral
employers picketed by Respondent, Wayne Wood-
head, a business representative of Respondent,
accused him of violating his contract by renting a
"nonunion" truck, or renting a mixer from a
"nonunion" operator, and said that Respondent was
in the process of trying to get a contract with Forest
Rowan. In addition, Harvey, another business agent
for Respondent, told Hall, another neutral contrac-
tor, that Hall would be picketed if he bought
concrete from Forest Rowan, but he could buy
concrete from either of two union concrete compa-
nies in the area without having any problems. These
statements by admitted agents of Respondent as to
the nature of its dispute with Forest Rowan were
never disavowed by Respondent. We find that these
statements clearly reveal that an object of the
picketing herein was to force or require Forest
i No exceptions were filed to the Administrative Law Judge 's finding
that Respondent violated Sec. 8(b)(4)(i ) and (uXB) of the Act. However, in
adopting those findings we do not adopt or pass on his rationale for
distinguishing this case from International Brotherhood of Electrical Workers,
Local Union 861 (Plauche Electric, Inc), 135 NLRB 250
2 The Building and Construction Trades Council of Philadelphia and
Vicinity (Samuel E. Long, Inc.), 201 NLRB 321.
Member Jenkins, to support the 8(b)(7)(C) violation, does not rely on
Harvey's statement to Hall that the latter would be picketed if he bought
210 NLRB No. 80
Rowan to recognize and bargain with Respondent as
the representative of its employees .2 As Respondent's
picketing continued for more than 30 days, and no
petition for an election was filed , we find that the
picketing violated Section 8(b)(7)(C) 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 the Respondent,
Truck Drivers Local 649, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Falconer, New York, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening Lakewood Supply Co., Inc., W. E.
Bell & Sons , Inc., or any other person engaged in
commerce, where an object thereof is to force
Lakewood, Bell, or any other person to cease using,
selling, handling, transporting, or otherwise dealing
in the products of Forest Rowan Concrete, Inc., or to
cease doing business with Forest Rowan.
(b) Establishing or maintaining pickets at the
jobsites of Lakewood Supply Co., Inc., or any other
person engaged in commerce, or appealing to
individuals employed by Lakewood Supply Co., Inc.,
W. E. Bell & Sons, Inc., or any other person engaged
in commerce, to refuse to perform services for their
employer, where in either case an object thereof is to
force Lakewood, Bell, or any other person to cease
using, selling, handling, transporting, or otherwise
dealing in the products of Forest Rowan Concrete,
Inc., or to cease doing business with Forest Rowan.
(c) Picketing, causing to be picketed, or threatening
to picket or cause to be picketed Forest Rowan
Concrete, Inc., or any other employer, where an
object thereof is to force or require Forest Rowan to
recognize or bargain with Respondent as the repre-
sentative of its employees, where Respondent is not
certified as such representative, and where such
picketing has been conducted for more than 30 days
without the filing of a petition under Section 9(c) of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its business office and meeting hall
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
concrete from Forest Rowan, but could buy concrete from two union
employers without having any problems. This statement shows, of course,
the secondary objective which we have found to violate Sec. 8(bX4)(B), and
nothing more Nothing in the statement or the context in which it was made
indicates the Union had any interest at this point in being recognized as the
bargaining agent for Rowan 's employees All the statement shows is that the
Union 's object was to stop Lakewood 's purchases from Rowan-the
violation we have found.
3 In the event that this Order is enforced by a Judgment of a United
TRUCK DRIVERS LOCAL 649, TEAMSTERS 581
Regional Director for Region 3, after being duly
signed by an authorized representative of the
Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to members are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish the Regional Director for Region 3
signed copies of said notice for posting by Forest
Rowan Concrete, Inc., Lakewood Supply Co., Inc.,
and W. E. Bell & Sons, Inc., if they be willing, at all
locations where notices to employees are customarily
posted.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
not certified as such representative, and where
such picketing is conducted for more than 30 days
without the filing of a petition for an election.
TRUCK DRIVERS LOCAL
649, INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Ninth Floor, Federal Building, 111
West Huron Street, Buffalo, New York 14202,
Telephone 716-842-3100.
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten Lakewood Supply Co.,
Inc., W. E. Bell & Sons, Inc., or any other person
engaged in commerce, where an object thereof is
to force Lakewood, Bell, or any other person to
cease using, selling, handling, transporting, or
otherwise dealing in the products of Forest
Rowan Concrete, Inc., or to cease doing business
with Forest Rowan.
WE WILL NOT establish or maintain pickets at
the jobsites of Lakewood Supply Co., Inc., or any
other person engaged in commerce, or appeal to
individuals employed by Lakewood Supply Co.,
Inc., W. E. Bell & Sons, Inc., or any other person
engaged in commerce, to refuse to perform
services for their employer, where in either case
an object thereof is to force Lakewood, Bell, or
any other person to cease using, selling, handling,
transporting, or otherwise dealing in the products
of Forest Rowan Concrete, Inc., or to cease doing
business with Forest Rowan.
WE WILL NOT picket, cause to be picketed, or
threaten to picket or cause to be picketed Forest
Rowan Concrete, Inc., or any other employer,
where an object thereof is to force or require
Forest Rowan to recognize or bargain with us as
the representative of its employees, where we are
DECISION
STATEMENT OF THE CASE
JOHN G. GREGG , Administrative Law Judge: This case
was heard at Buffalo , New York, on October 30, 1973,
based on charges duly filed and a consolidated complaint
issued October 5, 1973, alleging that the Respondent
violated Section 8(b)(4)(i) and (ii)(B) and 8(bX7) of the
Act. The Respondent denies any violations of the Act. For
the reasons explicated more fully hereinafter I find and
conclude that the Respondent did indeed violate the Act as
alleged in the complaint as to Section 8(b)(4)(i ) and (iiXB).
Upon the entire record in the case , including my
observation of the demeanor of the witnesses and careful
consideration of the briefs filed by the parties I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYERS AND THE LABOR
ORGANIZATION INVOLVED
Forest Rowan Concrete , Inc., is , and has been at all
times material herein , a corporation duly organized under,
and existing by virtue of, the laws of the State of New
York. At all times material herein, Forest Rowan has
maintained its principal office and place of business at
South Work Extension , in the city of Falconer, and State
of New York, herein called the Falconer facility , and is,
and has been at all times material herein , engaged at said
place of business and location in the manufacture , sale and
distribution of concrete and aggregate products.
During the past year, Forest Rowan , in the course and
conduct of its business operations , caused to be manufac-
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tuned, sold, and distributed at said Falconer facility,
products valued in excess of $50,000, of which products
valued in excess of $50,000 were furnished to among
others, Amadoria Construction Co., Inc., Lakewood
Supply Co., Inc., herein called Lakewood, and G. L. Olson
Contractors, Inc.; each of which enterprises annually
receives goods and materials valued in excess of $50,000 at
its New York location directly from points outside the
State of New York.
W. E. Bell & Sons, Inc., herein called Bell, is engaged
in the sale and trucking of concrete, and pursuant to an
agreement with Forest Rowan, rents trucks from Forest
Rowan.
Lakewood is engaged in the building supply and
construction business and, pursuant to an agreement with
Forest Rowan, purchases concrete from Forest Rowan for
use at its various New York jobsites.
Forest Rowan, Bell, and Lakewood are now and have
been at all times material herein, employers and/or persons
engaged in commerce within the meaning of Section 2(6)
and (7) and 8(b)(4) and (7) of the Act.
Respondent is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that through Frank
Harvey and Wayne Woodhead the Respondent threat-
ened, restrained, and coerced Lakewood and Bell in
furtherance of the Respondent's dispute with Forest
Rowan; that the Respondent in furtherance of its dispute
with Forest Rowan authorized, established, and main-
tained pickets at Lakewood's various New York josties
where Forest Rowan delivers concrete to its customers;
and in furtherance of said dispute ordered, instructed,
requested, and appealed to individuals employed by
Lakewood, Bell and other persons engaged in commerce or
an industry affecting commerce to refuse to perform
services for their employers and threatened, coerced and
restrained Lakewood, Bell and others with the object of
forcing the aforesaid to cease using, selling, handling,
transporting, or otherwise dealing in the products of and to
cease doing business with Forest Rowan, all in violation of
8(b)(4)(i) and (ii)(B) of the Act.
Additionally the complaint alleges essentially that the
Respondent has demanded that Forest Rowan recognize
and bargain with Respondent as representative of certain
of Forest Rowan's employees employed at its Falconer
facility, and that in furtherance of the aforesaid demand
for recognition and bargaining, Respondent, has picketed
or caused to be picketed Forest Rowan at its Falconer
facility, and at places where Forest Rowan was delivering
concrete to its customers, said picketing conducted for
more than 30 days without the filing of a petition under
Section 9(c) of the Act for the Board election, that an
object of said picketing was to force Forest Rowan to
recognize or bargain with the Respondent as the represent-
ative of certain of Forest Rowan employees at the Falconer
facility notwithstanding that the Respondent is not
currently certified as representative of such employees,
thereby engaging in unfair labor practices within the
meaning of Section 8(b)(7)(C) of the Act.
Forest Rowan president of Forest Rowan Concrete
testified that on July 1, 1973, a picket appeared at the
South Work Extension jobsite where Rowan was delivering
concrete with a sign indicating that Forest Rowan
Concrete Company "by not paying the rates, wages and
conditions of this Local Union is breaking down our
conditions and forcing our men out of work, Truck Drivers
Local 649." Rowan testified that Rowan Concrete, Inc.,
does not now have nor did it have in the past a collective-
bargaining relationship with Respondent Teamster Local
649. Rowan testified that the picketing on July continued
from 8 o'clock in the morning until 4 in the afternoon 5
days a week Monday through Friday.
Rowan stated that on September 27, 1973, the Company
had occasion to deliver concrete to Lakewood Supply
Corporation at the Chrysler building where at 9 in the
morning Rowan observed a picket walking back and forth
along the roadway picketing the job. At that time Forest
Rowan trucks were there.
Rowan testified further that while picketing at the South
Work Extension jobsite had ceased there was a picket who
from time to time follows the Forest Rowan mixer trucks
to jobsites and sometimes the jobsite is picketed and
sometimes not. Rowan said that this was done at random.
Rowan stated that some pours of concrete undertaken by
his company were interrupted by the picketing for short
times although whatever concrete there was to pour was
poured or laid.
Jerry Hall, President of Lakewood Supply Company
Inc., and of Chautauqua Steel Building Company Inc.,
testified that on July 1, 1973, he had occasion to talk to
Frank Harvey, business agent for Respondent Truckdri-
vers' Local 649, at Harvey's office in Falconer, New York.
Hall had gone to see Harvey at his office to discuss the
pouring of concrete using Forest Rowan Concrete and
Hall wanted to find out if he was going to have any
problem with the local union. According to Hall, Harvey
told him that on any of Lakewood Supply's jobs he,
Harvey, would picket Lakewood if Lakewood used Forest
Rowan Concrete. Hall asked Harvey if Harvey could get
his problem straightened out with Rowan and not picket
Lakewood as he did not want Lakewood's jobs shut down.
According to Hall, Harvey told him that there were two
union concrete companies in the area and that Lakewood
could purchase concrete from them and by doing so would
have no problem. Hall explained several reasons why he
would not buy concrete from the two union firms. Harvey
then told him that he was representing the Teamsters
concrete truckdrivers, that he had his job to do, and he
would picket Lakewood wherever Lakewood used Forest
Rowan Concrete.
Hall testified further that on July 18, 1973, he had
occasion to be on the Lakewood Supply jobsite in Little
Valley, New York. At 8 a.m. he observed a picket carrying
a sign as previously described in the area where the
concrete trucks were entering the jobsite in such position
that trucks would enter to the left of the picket's car so that
the sign did not confront a truck as it entered the jobsite.
TRUCK DRIVERS LOCAL 649, TEAMSTERS 583
At the time the picket was standing beside his car
displaying the sign.
Hall left the jobsite and returned in the afternoon at
approximately 3 o'clock when he observed the same picket
in approximately the same position displaying the sign as
previously described. At that time, according to Hall,
Forest Rowan was not on the jobsite and at the place of
the concrete pour the cement finishers were running steel
trowels and putting the final finish on the concrete. The
picket was still there approximately a half hour later when
Hall left the jobsite.
Hall stated that none of the crafts that were working on
the job at the time would cross the picket line on July 18,
that he talked to the electrical foreman on the job in the
morning who told him that he could not cross the picket
line and asked if the picket line would be on the job the
following day. Hall also talked to the plumber foreman at
the same time . According to Hall during his time on the
jobsite in the morning and afternoon he saw no electrical
workers or plumbers working.
Hall testified further concerning the Lakewood Supply
jobsite at the Chrysler Building in Lakewood, New York,
and stated that on September 27 he had occasion to be at
that particular jobsite that day, and that toward the middle
of the afternoon at approximately between 2:30 to 3 he
observed a picket in front of the jobsite displaying a sign as
previously described. At that time the picket was sitting in
his car, the sign was leaning up against the car . Hall stated
that Forest Rowan was not on the job at that time. When
Hall left 30 minutes later the picket was still there.
Hall stated that the next day, September 28, he was at
the jobsite again and he observed a picket located in
approximately the same place as the prior day doing the
same thing, sitting in his car with the sign leaning up
against the car with the same wording previously de-
scribed. Forest Rowan was not on the job at that time.
Hall testified that on the jobsite at Salamanca, New
York, on October 2, 1973 at approximately 3:30 in the
afternoon he observed a picket sitting in his car across
from the building with a picket sign lying face up on the
hood of the car. The picket was stationed right across the
street from the material entry, and Forest Rowan was not
on the jobsite at that time. Hall stated that, while the sign
on the hood of the car was not readily observable as it was
lying face up on the hood, it was observable to someone
who approached or walked past the car. He did state that
the entrance to the jobsite however was across the street
from the car.
In further testimony Hall stated that Lakewood Supply is
a member of the Southern Tier Builders Association, which
has an agreement with Truckdrivers Local 649 which
includes a provision stating as follows:
Article 14 "The employer agrees to refrain from
using the services of any person who does not observe
the wages, hours and conditions of employment
established by the Union having jurisdiction over the
type of service performed.
Site work shall be defined as all work done on the
site proper and all hauling from an area outside the
project area to the project area which outside area is
operated and maintained by the prime contractor for
use in conjunction with the project.
The employer agrees that the wages and hours and
working conditions provided for by this agreement
shall encompass the entire work covered by this
agreement thereby applying equally to any subcontract
let by the employer on the work covered by this
agreement.
According to Hall, Lakewood was not signatory to this
agreement , and in his discussion with Harvey on July 1,
1973, at Harvey's office this agreement was not mentioned.
Hall stated however , that the wages paid by Forest Rowan
Concrete were mentioned and were discussed.
Donald Baker , President of D. L . Baker, Inc., testified
that on July 18, 1973, he was on the Little Valley jobsite
doing some work for Lakewood pouring and finishing
concrete . At 7:45 in the morning as Baker drove the jobsite
he encountered a picket standing in the driveway with a
sign. The picket asked Baker if he was going to go through
and Baker said "yes." According to Baker he told the
picket that he did not have previous knowledge of the
picketing, that he had several yards of concrete ordered,
which he was liable for , that he was going to pour because
he had not been given 24 hours' notice. According to Baker
the picket let him through , telling him he now had a 24-
hour notice. Baker stated that he did not read the picket
sign and he crossed the picket line.
William Bell , vice president and general manager of W.
E. Bell & Sons, Inc., stated that his truckdrivers are
employed by the Respondent Local and the Company has
a bargaining relationship with the Local. According to Bell
in May 1973 Bell and Forest Rowan agreed to work their
trucks back and forth, rent them from each other with a
driver.
Bell testified that on August 21, 1973, he had occasion to
talk with Wayne Woodhead, representative of the Respon-
dent Teamsters Local 649 in Olean, New York. Bell stated
he had received information that Woodhead was at the
plant in the process of setting up a picket line, so he went
out to the plant to see what was going on. When he arrived
at the plant he found Woodhead there, and asked him
what was going on . According to Bell , Woodhead stated
that he understood that Bell had a rented truck from
Forest Rowan, out of Jamestown, and it was in violation of
the contract, and that Woodhead was going to have to put
a picket line up, that he had spent the money for two
pickets and signs and they were in the process of setting up
a picket . Bell testified that he asked Woodhead if he got rid
of the truck would Woodhead refrain from picketing, and
Woodhead said that he would.
According to Bell, he then told Woodhead that when the
truck came back from the present pour he would send it
back. Woodhead said that Bell was in violation of his
contract in renting a nonunion truck or renting a mixer
from a nonunion operator , that Local 649 was in the
process of trying to get a contract with Forest Rowan, and
spent a lot of money on pickets and time and so forth, and
that Bell was more or less being detrimental to the whole
situation there . So according to Bell he agreed to send the
truck back and did so, and has not since August 21, 1973,
rented trucks from Forest Rowan.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his testimony Bell stated that his agreement with
Respondent Local 649 included a provision as follows:
Article V Subcontractors: The employer agrees that
the wage, hours and working conditions provided in
this agreement shall encompass the entire work covered
by this agreement thereby applying equally to any
subcontract let by the employer and work covered by
this agreement. All employees including these employ-
ees are the subcontractor shall be paid directly by the
Employer. However when mutually agreed between the
Employer and the Union a subcontractor shall be
allowed to establish its own payroll.
Frank Harvey, business agent and secretary-treasurer of
the Respondent Local for 18 years, testified that Hall
called him and asked to come over to Harvey 's office to
talk About a problem. There he asked Harvey if he could
use Rowan Ready-Mix on his jobs at Washington Street
and at Lakewood without having a problem with Harvey.
Harvey then told Hall that Rowan Ready-Mix at that time
was paying $4 an hour and the union rate was $5.65 plus
benefits , which placed union employers in a deficit
position as far as hours per employee was concerned. This
competition, according to Harvey, he told Hall was causing
his employers to lay off the Respondents' members and he
was concerned about it. According to Harvey, Hall then
asked him if he was going to picket if Hall used Forest
Rowan, and Harvey told Hall "Look , I'm going to
advertise wherever and whenever I can, that Forest Rowan
Ready-Mix is knocking my brains out as far as competition
is concerned . We can't compete."
Harvey testified that prior to that time he had permitted
Hall to pour concrete with Forest Rowan and he was not
bothered, but that in the future wherever he possibly could
he was going to tell everybody what his problems were.
"I'm going to advertise through picketing that Forest
Rowan is breaking down my membership and my people
are being laid off."
Harvey testified further that prior to the meeting
discussed above he had called Hall and made him aware
that Hall had a nonunion subcontractor on his job and
"under the terms of our contract with him that the truck
would be manned by a Teamster under the contract."
According to Harvey, Hall then discussed with him that
the man was a subcontractor and what he was doing.
Harvey then went down, took a look at the job, talked to
the man on the truck, and found out that the truck was
engaged the majority of the time in digging footers and
Harvey didn't believe it was necessary to put a teamster on
at that time.
Harvey testified that he directed that picket signs be
placed "wherever we heard Rowan was pouring concrete."
Harvey stated his instructions to the picket was to picket
when the truck was on the jobsite, and when the truck
pulled off the picket signs were to be pulled in. The picket
was to wait for another truck to come and when another
truck came the picketing was to be resumed . Harvey stated
that he had a picket following the trucks on a random
basis . Harvey stated that the purpose of the picketing was
to advertise . Harvey specifically denied that in his
conversation with Hall on July 1, 1973, he said that he
would picket Lakewood Supply, but stated that he would
picket Forest Rowan.
Harvey stated he was not familiar with the picketing
conducted in Lakewood as he wasn 't there, but that the
picket operated under the same instructions as previously
discussed , that when the truck came he picketed and when
the truck left he withdrew . Harvey stated that the same
instructions were given to the picket at Lithe Valley where
Wayne Woodhead and two other people did the picketing.
Q. Isn't it a fact that you asked Mr. Hall to
consider using other concrete drivers in your conversa-
tion with him.
A. Yes, I did. I told him they were available to him.
Q. And you asked him to use them . If he would use
them to consider using them?
A. I'm not too sure about that.
Wayne Woodhead , business representative of the Res-
pondent Local in the Olean area, testified concerning the
conversation with Bell on or about August 21, 1973.
Woodhead stated he went to the jobsite on another matter,
and was talking to a steward when he saw a Forest Rowan
truck and he asked the steward what he was doing and the
steward said they were short of trucks. According to
Woodhead, Bell was pouring concrete . Later on, while
Woodhead was in the area Bell came over to him and they
discussed Rowan. Woodhead said that he told Bell that in
the contract they were supposed to have the same wages
and hours . Bell told Woodhead that he could not get the
trucks . Woodhead told Bell that they had been "advertis-
ing Rowan up in Falconer and it wasn't right for Bell to
bring Rowan in there with these union people ." According
to Woodhead, Bell then said to him "why don't you
organize them" or something like that, to which Woodhead
responded "We don't want them."
Woodhead denied specifically that he said he was going
to picket Bell. Woodhead stated that he would not picket
Bell because he had a contract with him and he'd have to
go through the grievance procedure.
Woodhead stated that in connection with the picketing
in Little Valley on July 18, 1973, he had two or three
pickets ,there to picket Forest Rowan . Harvey instructed
him to picket just when Forest Rowan was there and when
Forest Rowan was not there to take the signs off, which
Woodhead stated they did. Woodhead did state that
"When we took them off, we stood around and laid them
against the tree . They could have been against the tree face
in or face out.- We didn 't walk when Forest Rowan wasn't
there ." Woodhead stated that when Forest Rowan was
there they walked up and down when the trucks came in
until the trucks left. According to Woodhead the pickets
arrived at the jobsite at 6:30 a.m., stood around talking
with the signs against a tree until about 8 a.m. when they
walked up and down with the signs.
On cross-examination Woodhead stated that when he
talked to the steward and asked what the truck was doing
there he did not tell the steward to stop working but told
him that he, Woodhead, had to think it over, to continue
working in the meantime.
Q. Isn't it a fact that you told the steward that he
shouldn't be working with the Forest Rowan truck?
A. I don 't know whether I actually said, no, I
TRUCK DRIVERS LOCAL 649, TEAMSTERS
didn't stop him or anything. I said I had to decide what
I was going to do .. .
Q. Was that your testimony in front of the United
States Magistrate?
A. I'm not sure what I said there. When I was
actually talking to him there, I don't know what I said,
actually that he don't be doing it or not, I didn't tell
him to stop doing it, lets put it that way.
Q. But you might have said he shouldn't be doing
it.
A. Right.
Woodhead's version of his discussion with Bell was as
follows:
I said, how come you got Forest Rowan down here, we
have been advertising him down in Falconer. He said
I'm short of trucks and 1 can't get them anywhere else.
I said, according to the contract you're not living up to
the contract because of the wages, hours and condi-
tions and they're not Union. He says, well I couldn't
get trucks anywhere else. So then I said, that I was
going to have to advertise him or something like that.
He said, well there isn't much more, and he'll leave.
A. The Alleged Violations of Section 8(b)(4)(i) and
(ii)(B),• Analysis, Findings and Conclusions
Turning first to the allegation that on or about July 1,
1973, Harvey threatened, restrained, and coerced Lake-
wood in furtherance of the Respondent's dispute with
Forest Rowan. I am convinced and I find that Harvey did
in fact threaten Hall of Lakewood that he would picket
Lakewood, in furtherance of the Respondent's dispute with
Forest Rowan. In so finding based on my observation of
the demeanor of Hall as he testified I have credited the
testimony of Hall who testified in a convincing manner,
and who impressed me with his straightforward and
uncontrived testimony. On the other hand I do not credit
Harvey's version of his discussion with Hall and his denial
that he told Hall he would picket Lakewood and his
statement that he told Hall he would picket only Forest
Rowan. In addition to not crediting Harvey's version of his
discussion with Hall I am persuaded from an analysis of
Harvey's testimony in its totality that his object was clearly
to picket wherever and whenever he could and in so
informing Hall he made it clear that Lakewood would be
picketed.
Turning to the allegation that on or about August 21,
1973, Woodhead threatened and restrained Bell in further-
ance of Respondent's dispute with Forest Rowan I am
convinced and I find that the Respondent did thereby
threaten, coerce, and restrain Bell. Based on my observa-
tion of the demeanor of the witness Bell as he testified I
was impressed by his straightforward testimony, his
prompt and uncontrived responses and his sincerity and I
credit his testimony and find that Woodhead told Bell that
Bell was in violation of his contract with the Respondent
by using Rowan's trucks and that because of that he was
going to picket Bell.
Based on my observation of the demeanor of Woodhead
as he testified I do not credit his version of the foregoing
discussion nor his denial that he threatened to picket Bell.
Additionally, inherent in Woodhead's testimony concern-
585
mg his statement to Bell was a clear threat that he would
"advertise" or picket Bell if Bell continued to use Rowan
trucks.
It is clear from ample credited testimony of record that
the Respondent picketed Lakewood Supply Co. jobsites on
July 18, 1973, in Little Valley, New York, and on
September 27 and 28 at Lakewood, New York, and on
October 2, 1973, at Salamanca , New York, with signs
reading:
The Forest Rowan Concrete Company by not paying
the rates, wages and conditions of this Local Union is
breaking down our conditions and forcing our men out
of work.
Truck Drivers Local 649
There is ample evidence to persuade me and I find that
such picketing at the aforesaid jobsites was conducted at
the site not only when Forest Rowan men and trucks were
engaged in delivering and pouring concrete but prior to
and subsequent to the arrival and presence of Forest
Rowan at the jobsite. In this connection based on my
observation of the witness Forest Rowan as he testified I
credit his testimony which was given in a straightforward
and sincere manner. In addition, credited testimony of
record by Hall and Bell, establishes that picketing was
indeed conducted at the jobsites at times when Forest
Rowan was not present. I have also given weight to
exhibits of record indicating that Forest Rowan was off the
affected jobsites before 12:30 p.m. on the dates in question.
Accordingly, I find the picketing under the circumstances
herein not in conformance with the requirements of Moore
Dry Dock. Additionally, crediting the testimony of Hall it
is clear from the record that the Respondent's unlawful
picketing resulted in a work stoppage by other" trades.
The Respondent relies heavily on International Bhother-
hood of Electrical Workers, Local 861 (Plauche Electric,
Inc.), 135 NLRB 250 (1962).
Plauche is clearly distinguishable from the case at hand
in that in Plauche the picketing continued while the
employees of the primary employer were on a lunch or
coffeebreak. There the Board held that the picketing was
not thereby rendered unlawful as the primary employer
was manifestly engaged in its normal business at the situs
even though its employees temporarily departed the site for
lunch or coffeebreak.
In the case at hand this rationale is not applicable. In
Plauche the employees of the primary employer were
engaged in the performance of work of a continuing nature
requiring their presence on the job from the time they left
the primary employers premises and entered the jobsite
until they departed at the end of the day. In the case at
hand the normal business of the primary employer Forest
Rowan was of an intermittent nature . From time to time a
truck would enter the premises , pour, and depart. In any
event having found that the picketing took place at times
when the Forest Rowan trucks were not present at the
jobsite and having found that Rowan's activity was
conducted in the morning and completed sometime around
noon, in my view when the picketing continued after such
activity had ceased it no longer conformed to Moore Dry
Dock.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also clear, crediting the version of Hall in his
discussion with Harvey on July 1, 1973, that Harvey asked
Hall to stop using Forest Rowan concrete and urged the
use of union ready-mix employers in lieu of Forest Rowan,
a clear indication of the Respondent's intent to induce
Lakewood to cease doing business with Forest Rowan.
Additionally I reject the Respondent 's contention that
Lakewood and Bell are not neutral employers herein
inasmuch as they had agreements with subcontracting
clause with the Respondent Local which protected the
union wage . Aside from a question as to whether or not
Lakewood was indeed bound contractually with the
Respondent, it is well settled that such subcontracting
clauses may be enforced only through appropriate legal
channels and not by threats , coercion , or restraint
proscribed by Section 8(bX4) of the Act. Centlivre Village
Apartments, 148 NLRB 854 ; Ets Hokin Corporation, 154
NLRB 839; Local 1976, United Brotherhood of Carpenters,
[Sand Door & Plywood Co.] v. N.L.R.B., 357 U.S. 93 (1958).
Accordingly I am convinced and I find , as alleged in the
complaint , that through Harvey and Woodhead the
Respondent threatened , restrained, and coerced Lakewood
and Bell in furtherance of the Respondent's dispute with
Forest Rowan , that the Respondent in furtherance of said
dispute authorized, established , and maintained pickets at
Lakewood 's various New York jobsites when Rowan
delivered concrete to its customers, and that the Respon-
dent in furtherance of said dispute instructed , requested,
and appealed to individuals employed by Lakewood, Bell,
and others to refuse to perform services for their employers
all with the object of forcing Lakewood , Bell, and others to
cease using , selling , handling, transporting , or otherwise
dealing in the products of and to cease doing business with
Forest Rowan in violation of Section 8(bX4 )(i) and (iiXB)
of the Act.
B. The Alleged Violations of Section 8(b)(7)(C) of
the Act
The complaint alleges essentially that the Respondent
since July 1, 1973, has demanded that Forest Rowan
recognize and bargain with it as representative of certain of
Forest Rowan employees at the Falconer facility; that in
furtherance thereof the Respondent has picketed Forest
Rowan at its Falconer facility and at places where Forest
Rowan was delivering concrete to its customers, the
aforesaid picketing conducted with the object of forcing
Forest Rowan to recognize or bargain with the Respondent
and said picketing conducted for more than 30 days
without the filing of a petition under Section 9(c) of the
Act.
There is no dispute as to the fact that the Respondent is
not currently certified as the representative of any of
Forest Rowan's employees. It is also clear from credited
testimony of record by Forest Rowan that the Respondent
picketed Rowan's South Work Extension jobsite continu-
ously from July 1 to September 18, 1973, and at various
other jobsites where Rowan was delivering concrete to its
customers.
The basic question herein is to determine the true nature
of the picketing, for if this be recognitional or organiza-
tional picketing the Act is violated. As stated by the Board,
unlawful motive in picketing situations is not often proved
by admission, but rather, the motive for the act in question
must be ascertained from all the attendant circumstances.
International Ladies' Garment Workers' Union, AFL-CIO
(Coed Collar Company), 137 NLRB 1698.
Analysis of the circumstances herein leads me to find
and conclude that the picketing herein was not conducted
for recognition and organization as alleged in the com-
plaint.
In this connection while I have credited the testimony of
Bell who stated that in his discussion with Woodhead on
August 21, 1973, Woodhead told him that the Respondent
was in the process of trying to get a contract with Forest
Rowan , and spent a lot of money on pickets and time, and
that Bell was a detriment to the whole situation , and while
I do not credit Woodhead' s denial, I simply do not find in
such statement a sound basis for finding as a fact that the
Respondent 's picketing was for the object of gaining
recognition or organization, rather than for the object of
advertising that Rowan did not pay union wages. In this
connection, the record establishes that the picket signs did
not indicate a recognitional or organizational object but
were in fact advertisement. There is insufficient evidence
of record to persuade me that the picketing was indeed for
the proscribed object.
Accordingly, that portion of the complaint alleging a
violation of Section 8(bX7XC) by the Respondent is hereby
dismissed.
III. THE EFFECT UPON COMMERCE OF THE UNFAIR
LABOR PRACTICES
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of
Forest Rowan Concrete, Inc., Lakewood Supply Co., Inc.,
and W. E. Bell & Sons , Inc., 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 of
commerce.
IV. THE REMEDY
It having been found that the Respondent, Truck Drivers
Local 649, has violated Section 8(bX4Xi) and (iiXB) of the
Act, it is recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Truck Drivers Local 649, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Forest Rowan Concrete, Inc., Lakewood Supply Co.,
Inc., and W. E. Bell & Sons, Inc., are each engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and are persons engaged in commerce or in an
industry affecting commerce within the meaning of Section
8(b)(4) of the Act.
TRUCK DRIVERS LOCAL 649, TEAMSTERS 587
3. The Respondent, by threatening Lakewood and Bell
in furtherance of the Respondent's dispute with Forest
Rowan ; by establishing and maintaining pickets at
Lakewood's various New York jobsites ; by appealing to
individuals employed by Lakewood and Bell to refuse to
perform services for their employers ; all with the object of
forcing Lakewood , Bell, and others to cease using, selling,
handling, transporting, or otherwise dealing in the prod-
ucts of and to cease doing business with Forest Rowan, has
engaged in unfair labor practices in violation of Section
8(bX4Xi) and (iiXB) of the Act as alleged in the complaint.
[Recommended Order omitted from publication.]