International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

In the Matter Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , TRUCK DRIVERS AND CHAUFFEURS, LOCAL UNION No. 807 and SCHULTZ REFRIGERATED SERVICE, INC. Case No. 2-CC-61.-Decided December 9, 1919 DECISION AND ORDER On March 10, 1949, Trial Examiner Peter F. Ward issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached thereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent union filed exceptions to the Intermediate Report and a supporting brief. On June 22, 1949, the Board heard oral argument at Washington, D. C., in which the Respondent union participated. Neither the General Counsel nor Schultz Refrigerated Service, Inc., appeared-. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the . exceptions and brief, the contentions advanced during oral argument, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the limited extent consistent with this Decision and Order. 1. We agree with the Trial Examiner that the complaint, insofar as it alleges that the Respondent violated Section 8 (b) (1) (A) of the Act, should be dismissed. No exceptions have been filed to this portion of the Intermediate Report. 2. The Trial Examiner found, however, that the Respondent had otherwise violated Section 8 (b) (4) (A) of the Act by picketing the 87 NLRB No. 82. 502 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 503 trucks operated by Schultz Refrigerated Service, Inc., herein called Schultz, the primary employer, as part of its transportation business. The facts The facts with regard to this allegation of the complaint are as follows : Schultz, engaged in the business of transporting perishable goods by truck between several States and particularly, as here rele- vant, within the metropolitan area of New York City, is the employer directly involved in a labor dispute with the Respondent. For some 12 years before August 31, 1948, the termination date of its last con- tract with Schultz, members of the Respondent union in their capacity as truck drivers were employed by Schultz to make deliveries to and pick-ups from various business concerns located in New York City. The dispute between the Respondent and Schultz arose when Schultz removed its New York City terminal to Slackwood, New Jersey, on August 28, 1948,1 and thereafter refused to negotiate a new contract for the future employment of Respondent's members. Schultz, how- ever, continued to operate its transportation business in New York City. For that purpose it employed members of a New Jersey local 2 to perform the driving duties previously performed there by members of the Respondent. The Respondent thereupon resorted to the picketing activities al- leged in the complaint to be violative of the Act. During the month of September 1948, following the termination of its contract with Schultz, it picketed Schultz' trucks operating on or in front of the premises of Manhattan Refrigerating Company, United Dressed Beef Company, Meadow Provision Company, Inc., and other customers and consignees of Schultz located in New York City. The nature of the picketing is undisputed. As soon as the replacement drivers pre- pared to load or unload their produce, the pickets began walking around Schultz' trucks, announcing by means of printed signs that truck driving members of the Respondent, employees of Schultz, had been* locked out of their jobs. The picketing was at all times peace- fully conducted. There was no picketing at consignees' premises ex- cept as incidental to the picketing of Schultz' trucks. :'On August 27, 1948, Schultz Informed the Respondent by letter that the New York terminal would be closed on August 28 , but that Respondent's members who were willing to work from the New Jersey terminal would be assigned work until the expiration of the existing contract on August 31. 2 Schultz entered into a closed-shop contract with Local 469, the Slackwood , New Jersey, local of the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help- ers of America , AFL, on August 27 or 28, 1948 . This date is incorrectly given in the Inter- mediate Report as July 27, 1948. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The alleged violation of Section 8 (b) (4) (A) It is the contention of the General Counsel that the Respondent's picketing of Schultz' trucks at the premises of its customers and con- signees had as its objective the illegal inducement or encouragement of a secondary boycott within the meaning of Section 8 (b) (4) (A). The Trial Examiner, relying upon the literal language of that Section, without regard to its legislative history, or the paramount right of a labor organization to engage in a primary strike for lawful objectives, found that such picketing, although constituting peaceful "primary" picketing against a primary employer (Schultz) at his only place of business that could be located in New York City, was nevertheless violative of Section 8 (b) (4) (A). We find it impossible to reconcile the Trial Examiner's preliminary finding that the Respondent engaged only in primary picketing with the conclusion that it thereby violated the Act. As we have fre- quently held, the legislative history of Section 8 (b) (4) (A) reveals that this section of the amended Act was' directed against secondary boycotts and secondary strike activities.3 Certainly, it was not the intent of Congress, nor has the Board so construed the language of Section 8 (b) (4) (A), to proscribe primary action by striking em- ployees, who are engaged in a legitimate labor dispute with their own employer.4 Thus, the language of Section 8 (b) (4) (A), forbid- ding labor organizations to induce or encourage strikes for the purpose of forcing any employer to cease doing business with any other per- son, must be read with the implicit condition that such inducement or encouragement be accomplished' by secondary, but not primary means. Within the area of primary conduct a union may lawfully persuade all persons, including in this case the employees of Schultz' customers and consignees, to cease doing business with the struck employer. Little indeed would be left of the right to strike, reaffirmed 8 Pertinent comments to this effect by Senator Taft , a cosponsor of the Act , appear in United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City, Missouri, and Vicinity, A. F. of L., and Walter A. Said, as Agent for United Brotherhood of Carpenters and Joiners of America, District Council of Kansas City, Missouri, and Vicinity, A. F. of L. (Wadsworth Building Company, Inc., and Klassen d Hodgson, Inc.), 81 NLRB 802. During the course of Congressional debate Senator Taft stated : This provision [ Section 8 (b) (4) (A)] makes it unlawful to resort to a secondary boycott to injure the business of a third person who is wholly unconcerned in the disagreemgnt between an employer and his employees. 93 Cong. Rec. 4323 (April 29, 1947). The test set forth in the Wadsworth case and recited by the Trial Examiner in the Intermediate Report is applicable therefore only in the event' the union 's picketing activities are found to be in furtherance of a secondary boycott. 4 Oil Workers International Union, Local Union 346 (CIO) (The Pure Oil Company), 84 NLRB 315 ; United Electrical, Radio and Machine Workers of America and Local 813 of the United Electrical, Radio and Machine Workers of America ( Ryan Construction Company ), 85 NLRB 417. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 505 by Congress in Section 13 of the Act,' if the striking employees were denied the concomitant right of peacefully picketing the immediate business of their employer. The lawfulness of such conduct has been recognized by a unanimous Board in the recent Pure Oil case; where we said : The fact that the Union's primary pressure on Standard Oil may have also had a secondary effect, namely inducing or encouraging employees of other employers to cease doing busi- ness on Standard Oil premises, does not, in our opinion, convert lawful primary action into unlawful secondary action within the meaning of Section 8 (b) (4) (A). To hold otherwise might well outlaw virtually every effective strike, for a consequence of all strikes is some interference with business relationships between the struck employer and others. The sole issue in this case therefore is the validity of the General Counsel's theory that the nature of the Respondent's picketing was secondary rather than primary.' . Plainly, the object of all picketing at all times is to influence third persons to withhold their business or services from the struck em- ployer. In this respect there is no distinction between lawful primary picketing and unlawful secondary picketing proscribed by Section 8 (b) (4) (A). Necessarily then, one important test of the lawfulness of a union's picketing activities in the course of its dispute with an em- ployer is the identification of such picketing with the actual function- ing of the primary employer's business at the situs of the labor dispute. Admittedly, the application of the above test in this case poses a special problem. Heretofore, in cases involving an interpretation of the restrictions contained in Section 8 (b) (4) (A), the primary em- ployer and, generally, the secondary employer, conducted their opera- tions at fixed geographical locations. Thus, in the Wadsworth s and Sealright 9 cases, it was clear that the immediate vicinity of the struck plant, the situs of the primary employer's business, constituted the area of lawful, primary strike activity. Under those circumstances, the ° This Section provides Nothing in this Act, except as specifically provided for herein , shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right. ° Supra. ' It is noteworthy that neither the General Counsel nor the charging party has excepted to the Trial Examiner 's finding that the Respondent 's picketing activities amounted only to "primary" picketing of a primary employer. " Supra, e Printing Specialties and Paper Converters Union, Local 388, A . F. L. (Seal-right Pacific, Ltd.), 82 NLRB 271. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union by extending its picket line to the premises of other employers and thus abandoning the scene of its actual dispute with the primary employer, went beyond the protected area of primary picketing. Its picket line so extended was no longer local in point of contact to the primary employer's manufacturing operations, the only business di- rectly involved in the labor dispute. Such picketing, a majority of the Board there held, was secondary conduct violative of Section 8 (b) (4) (A).10 In this case the primary employer's only geographical premises are a terminal in New Jersey, removed from all contact with its customers and consignees, and a dispatcher's office in New York City. But the business with which we are concerned is not confined to these specific localities. Here a fleet of commercial trucks, transporting products over a wide area in New York City, are the necessary instruments of the primary employer's operations. Clearly, therefore, in view of the roving nature of its business, the only effective means of bringing direct pressure on Schultz was the type of picketing engaged in by the Respondent. It would have been pointless, indeed, of the Respond- ent to establish a picket like at the New Jersey terminal and yet allow Schultz to carry on its extensive business activities in New York City, unhampered by the Respondent's protesting voice at the very scene of their labor dispute. Section 8 (b) (4) (A) does not, in our opinion, require that the Respondent limit its appeal to the public in so drastic a manner. In their dissenting opinion the minority argue that Schultz' em- ployees were engaged in a secondary boycott by picketing at the prem- ises of Schultz' customers. We are at a loss to understand the cri- teria employed by the minority, other than a strong conviction that they have correctly interpreted "the rules for legality as set down by Congress," to reach their conclusion. The minority evidently regard as insignificant the facts: (1) that Respondent's picketing was lim- ited strictly in time and area to Schultz' trucks; (2) that the employ- ees involved in the labor dispute were employed by Schultz as truck drivers in New York City ; (3) Schultz, at the time of the picketing, was engaged in his normal business of transportation in that city. We think these factors most important. 10 See, also Denver Building and Construction Trades Council etc. (Earl C. Gould and John C. Preisner, d/b/a Gould of Preisner), 82 NLRB 1195, involving a general contractor and a nonunion subcontractor operating on the same construction project. There'the Board held that the union had directed its picketing activities at the general contractor, a secondary employer. Thus identified, the union's conduct was found to be violativq of Section 8 (b) (4) (A). A similar factual situation was presented in International Brother. hood of Electrical Workers, Local 501, A. F. of L., and William Patterson (Samuel Langer), 82 NLRB 1028. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 507 It would seem clear that the truck drivers employed on Schultz' trucks are directly concerned only with the business of driving those trucks in New York City. Whatever their interest in the New Jersey terminal, that interest results from their employee interest in the transportation aspect of Schultz' business, not the reverse, as in the Sealright case," where a union of production employees picketed the trucks of an independent operator at a scene remote from the situs of the labor dispute. The Respondent union was free within the bounds of primary action to publish to the world the facts of its dis- pute with Schultz and thereby enlist public support for its cause. Concededly, in selecting a forum to air its grievance, it chose those locations and occasions most likely to advise Schultz' customers and their employees in New York City that the replacement drivers, about to load or unload produce for Schultz, were taking the jobs of the regular truck drivers who had been locked out by their employer. But the forum so selected was within the imanediate vici'hity of Schultz' own trucking operations and the aggrieved employees' own employ- men t.12 Indeed, as the Trial Examiner found, there was no other place in New York City where the Respondent could give adequate notice of its dispute with Schultz 13 It therefore 'selected the struck vehicles as the most appropriate objects of primary pressure. In so doing the Respondent was acting in a manner traditional to employees in all other industries, who choose to stand before their place of employ- ment and point out their replacements to the interested public as strike-breakers, and their employer as unfair. Such picketing, vir- tually synonymous with the right to strike, is an exercise of a historic right thought necessary to the effectiveness of a strike. We do not believe that the truck driving employees in this case should be denied '1 Supra. 'z Citing the Northland Greyhound case, 80 NLRB 288 , the minority contend that Schultz' trucks are not the truck drivers ' place of employment. In the cited case the Board, faced with a problem of conflict of State laws , held that the law of the State in which the employer's headquarters was located should determine the place employment of bus drivers for the purpose of holding a union-authorization election. The Greyhound case does not determine the location of an employer 's business or of truck drivers' employment for the purpose of defining primary picketing.' 13 we do not find it necessary , however, to accept the Trial Examiner 's finding that the location of Schultz' trucks on the premises of its customers and consignees constituted the former 's "place of business" in New York City . It is sufficient , in our view , that the trucks were the main instrumentality of Schultz' mobile business activities in that city, without adopting terminology commonly used with reference to fixed geographical premises. Schultz, in fact, did not occupy a "place of business" in New York City. The retained dispatcher 's office on 17th Street was used only to receive and relay telephone calls. Apparently it was the practice of Schultz' drivers to contact the dispatcher either by tele- phone or by stopping there to receive instructions . Customers did not come into physical contact with this office, nor does the evidence indicate that the drivers were required to do so. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantially the same right to advertise their grievance in the most effective manner possible, through a picket line around their peripa- tetic employer's trucks, which comprise that employer's own busi- ness in New York City at the point of direct contact with the patron- age of its customers and consignees.14 In our opinion, Respondent's picketing was directed solely at the continued functioning of Schultz' business while its employees, some of whom haZl been employed on the picketed trucks from 6 to 13 years, were locked out of their jobs. Viewed in this context, we cannot re- gard the incidental interference with the business of other employers as sufficient to convert the Respondent's otherwise lawful primary picketing into unlawful secondary conduct.15 Significantly, those employers are not before this Board complaining of any interference with their business. Rather, the available evidence indicates that the secondary employers in this case adopted a strict hands-off policy to- ward Schultz in the latter's dispute with the Respondent. William Haughton, superintendent of consignee Manhattan Refrigerating Company, testified credibly, contrary to the testimony of Louis J. Schultz, that the Respondent at no time threatened to picket the prem- ises of that company or to induce its employees to engage in a strike against their employer. Both Haughton and Joseph K. Storer,"' vice president of Manhattan Refrigerating Co., testified that their, em- ployees, in fact, were not requested and therefore did not refuse to handle products on the picketed vehicles.17 Conclusion We conclude, on the basis of all the facts in the case, that the Re- spondent has engaged only in primary picketing of a primary em- 14 Our dissenting colleagues argue that the application of this reasoning to the trans- portation industry "removes from the protection of Section 8 (b) (4) (A) all employers doing business with truckers . . We contemplate no such sweeping consequences from our decision that the facts in this case establish the primary nature of Respondent's picketing activities . The fact that the secondary employers in this case, as in the Ryan and Pure Oil cases , supra, were incidentally affected by the primary pressure exerted against a primary employer does not per se change the primary nature of the picketing. A different case would be presented had Respondent failed to confine its picketing to Schultz ' trucks or had it otherwise employed secondary pressure against Schultz' customers. I., Our dissenting colleagues ascribe to our opinion "the application of the test of effectiveness" in determining the legality of Respondent 's conduct . "The right to strike," they assert, "is not equivalent to the right to conduct an effective strike." Nowhere in our decision do we find that the right to strike encompasses all forms of effective picketing. We had thought it clear that'our decision rests squarely on the proposition that Respondent, by picketing Schultz ' business at the situs of the labor dispute, had engaged in primary, rather than secondary , activity . It would seem self-evident that effective pri,nary picket- ing is a common incident of a lawful strike without which the phrase "right to strike" would lose much of its meaning . This type of picketing, we have held, is not a violation of the Act, whether or not it happens to be effective. 16 The name of this official is incorrectly designated as "Joseph K. Stover" in the Inter- mediate Report. 1' Haughton 's testimony to this effect appears in the Intermediate Report. INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 509 ployer and that such picketing is not violative of Section 8 (b) (4) (A). Accordingly, we shall dismiss the complaint in its , entirety. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein against In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Chauffeurs, Local Union No. 807, be, and it hereby is, dismissed. MEMBERS REYNOLDS and GRAY, dissenting in part: We agree with the majority opinion that the complaint, insofar a5 We agree with the majority opinion that the complaint, insofar as Act, should be dismissed. However, we must emphatically differ with our colleagues in their finding that the Respondent did not violate Section 8 (b) (4) (A). Indeed, we believe that the majority position with respect to this aspect of the case constitutes a grave misinterpre- tation of the Act which will seriously impair our ability to effectively reflect the intent of Congress in its determination to outlaw the sec- ondary boycott from American industry. The facts of this case relative to the picketing are simple. Upon entering New York City, Schultz' trucks were trailed by the Respond- ent's members in automobiles. When a Schultz truck reached a con- signee's premises it was either parked in front of such premises or driven on the premises to a loading dock. The Respondent's mem- bers then left their vehicles and formed a picket line around the truck, either on or in front of the consignee's premises, depending upon the location of the truck. When Schultz' truck left the particular con- signee's premises, the picketing of the premises ceased. No attempt was made to picket Schultz' terminal in New Jersey, or his New York City office even though on a number of occasions and for hours at a time Schultz' trucks stopped there. The Respondent was involved in a labor dispute with Schultz. It was not engaged in a labor dispute with any of Schultz' New York City customers or consignees. Schultz is therefore the primary em- ployer, while his New York City customers and consignees are sec- ondary employers. The question before this Board is whether or not the Respondent Union's picketing on or in front of the premises of the secondary employers, as above described, is prohibited by Section 8 (b) (4) (A) of the Act. There is no controversy over the fact that Respondent's pickets were on or in front of the premises of' secondary employers while 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD carrying on their picketing. Tor can there be any doubt that they had as an objective the inducement and encouragement of the em- ployees of the secondary employers to refuse to perform their duties in order to force the secondary employers to cease doing business with Schultz. At the hearing in this matter counsel for, the Respondents stated : "We did not want to picket in Trenton where it does no good. We want to picket-where it will be effective." Again he stated: "Of course we hoped that the men [employees of Schultz' customers] wouldn't unload the trucks in front of the picket line. That was the only way we could be effective. Of course we hoped that." In the Gould and Preisner case, footnote 10, supra, where, as here, the picket- ing occurred at a secondary employer's premises during the presence thereon of employees of the primary employer, this Board found a violation of the Act. In that case, significantly, the Board's deci- sion rested in part on admissions of the respondent as to its motives including a statement in its brief to the effect that "the only way in which it was feasible for the unions to exert economic pressure on Gould and Preisner was to withhold their labor on projects where Gould and Preisner men were employed." The majority here differentiates this case from the previous ones, including Gould and Preisner, involving the violation of the same section of the Act by establishing two new doctrines : (1) In the trucking industry the trucks of the employer are both his place of business and the situs of employment of his employees, and (2) the right to strike is equated with the right to conduct an effective strike. We are unable to concur with either of these doctrines. The establishment of this type of mobile labor dispute has mani- fold defects. Among other things this reasoning ignores our decisions in other cases, among them the Northland Greyhound case,"' in which we were faced with the problem of ascertaining the place of employ- ment of bus drivers for the purposes of conducting a union-authoriza- tion election. We held that the focal point of the employment rela- tionship of the bus drivers was their headquarters, that is, the place where they reported to work, received their instructions, and were paid. We believe the same tests are applicable to the truck drivers here. If, however, the test used by the majority for the Teamsters in this case is followed in the future, the situs of the labor dispute, the place of employment of the drivers, and the picketing may be found in any places which the trucks visit. Application of today's decision to other businesses in which an employee works from rather than in an office or factory, if consistency were our criterion, points to the conclusion that a sample bag, a tool kit, or a brief case is the place of employ- Is Northland Greyhound Lines, Inc., 80 NLRB 288. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 511 ment of a salesman, a craftsman, or an insurance agent respectively, and the right of a union to picket in a dispute involving such employees will be determined by the location of the sample bag, tool kit, or brief case. More particularly, the application of this doctrine removes from the protection of Section 8 (b) (4) (A) all employers doing business with truckers, for it is their premises that become the primary prem- ises of the trucker at least while his trucks are loading or unloading there. This we consider to be an unwarranted limitation of the intent of Congress to protect neutral third party employers at their own places of business from the discord resulting from a labor dispute between a primary employer and his employees. In this connection we find no significance in the Respondent's limitation of its picketing to that area of a secondary employer's premises around Schultz' trucks or to a time limited to when Schultz' trucks were on the secondary employer's premises. There is no requirement in the Act that the striking union set its secondary boycott aim at completely disrupting the operations of the secondary employer but only that he ultimately be brought, by the failure or refusal of his employees to perform services, to the point of ceasing to do business with the primary em- ployer. The limited picketing here was obviously and admittedly aimed at this proscribed result. It follows therefore that the facts of this case are completely dissimilar to those of the Pure Oil case, Supra, cited and quoted by our colleagues, because there the picketing was limited to the premises of the primary employer. The second theory advanced and relied on by the majority of our colleagues and with which we cannot agree is the justification of the actions of the Respondent on the grounds that it was "the only effec- tive means of bringing pressure on Schultz .. ." This conclusion is followed by the observation that "it would have been unrealistic, indeed, of the Respondent to establish a picket line at the New Jersey terminal and yet allow Schultz to carry on its extensive business activ- ities in New York City, unhampered by the Respondent's protesting voice at the very scene of the labor dispute." The application of a rule of effectiveness in reaching a determina- tion as to whether or not there has been a violation of the statute is novel to us. We had heretofore assumed that the Congress intended to prohibit certain types of activities to labor organizations. The secondary boycott is one of these activities. We do not deny that the activities of labor organizations prohibited by.the amendment of the. Act are effective. It was this very effectiveness which led to their proscription when the Congress determined that such activities were inimical to the public welfare. To now determine that one of the 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tests of the legality of the activity here in question is that the forum chosen was the only effective one open to the Respondents injects, in our opinion, an irrelevant consideration into our deliberations. -. The right to strike is not equivalent to the right to conduct an effective strike. Congress has seen fit to limit the areas in which industrial conflict may be carried on and it should not be our function to find otherwise. The Court of Appeals for the Ninth Circuit stated : Congress has now undertaken, in the exercise of its power under the Commerce Clause, to prohibit altogether or sharply to curtail the use by labor organizations of certain economic weapons which they have heretofore freely employed. In an effort to narrow the area of industrial strife, and thus to safe- guard the national interest in the free flow of commerce, it has in effect banned picketing when utilized to conscript in a given struggle the employees of an employer who is not himself a party to the dispute is Finally, we fail to see the significance attached by the majority to the fact that the secondary employers herein did not file charges with this Board. This novel test of violation of the Act has no bearing whatever on the factual issue before us. In cases without number the fact that all possible complainants were not before us has not weighted our judgment. For instance, to cite one of the many cases available, we found a violation in a matter closely analogous to this one in the S'ealrigh,t case, supra, where the secondary employers had not complained of the violation. By way of conclusion and recapitulation we again must express our disapproval of the majority's enunciation of the doctrine of a roving situs and place of employment in the case of the trucking industry and the correlative theory that this industry creates a special problem deserving of special. treatment. We know of no precedent for the first of these two theories and forecast that consistent application of this doctrine will largely vitiate the provisions of section 8 (b) (4) (A) as to all employers using transportation in their business. Nor do we find sanction in the Act or precedent in the body of the law for designating one group of labor organizations for unique treatment when on its face the applicable statute makes no such ex- emption. The majority has further condoned the actions of the Teamsters by finding that the picketing it conducted was the only effective means at its command. We are confounded by the appli- cation of the test of effectiveness to the legality of the Respondent's activities. We find no mandate upon us to guarantee a labor organi- 19Prin.tinp Specialtie•_e and Converters Union, et al. v. Le Baron, 171 F. 2d 331 (C. A. 9). INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 513 zation the right to conduct an effective strike as opposed to an abortiie one. The sole test which we are deputized to apply is whether or riot the activity in question is conducted within the rules for legality as set down by Congress. Our colleagues also advert to the fact that the pickets marched closely around Schultz' trucks and departed when the trucks departed. Disagreeing as we do with the roving situs theory of the majority we find no significance in this behavior. Even were we to grant the validity of this theory the aid of legality with which the majority clothes the Respondent's activities was completely wafted away at the hearing in this matter when counsel for the Re- spondent repeatedly admitted the object of the picketing to be the inducement of the employees of the secondary employer to refuse to perform their duties with the object of forcing the secondary employer to cease doing business with Schultz. As we do not believe that the cab of a truck is a place of employment or that the truck itself is the place of business of Schultz, or that the Respondent is entitled to the most effective place to advertise its labor dispute without regard to the proscriptions of the law, we must therefore conclude that by carrying their labor dispute to the premises of secondary employers for admittedly unlawful purposes the Re- spondent herein has violated Section 8 (b) (4) (A) of the Act. INTERMEDIATE REPORT Mr. Warren H. Leland, for the General Counsel. Boudira, Cohn & Glickstein, of New York, N. Y., by Mr. Sidney E. Cohn, and Mr. John J..Boylwn., delegate, Local 807, for the Respondent. Pincus & Pechter, of Philadelphia, Pa., by Messrs. Ira I. Pechter and Morris J. Mayer, and Buckley & Danzunsky/, of Washington, D. C., by Messrs. Joseph B. Danzansky and Milton Quint, for Schultz Refrigerated Service, Inc. STATEMENT OF THE CASE Upon a third amended charge duly filed September 28, 1948, by Schultz Re- frigerated Service, Inc., of Slackwood, New Jersey,. herein called Schultz, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Second Region (New York, New York), issued a complaint dated September 28, 1948, against the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Truck Drivers and Chauffeurs Local Union No. 807, of New York, New York, herein called the Respondent, and on occasion called Local 807, or the Union, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (1) (A) and 8 (b) (4) (A), and Section 2 (6) and (7) of the National Labor Relations Act, as amended, Public Law 101, 80th Congress, 1st sess., hereinafter referred to as the Act. i The General Counsel and his representative at the hearing are referred to herein as General Counsel ; the National Labor Relations Board is referred to as the Board. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices the complaint alleged in sub- stance : (1) . that since on or about September 1, 1949, the Respondent has en- gaged in, and by picketing, intimidation, coercion, threats and orders, has induced and encouraged the employees of the -Manhattan Refrigerating Com- pany, three other named employers, all of New York, New York, and the em- ployees of other unnamed employers, engaged in a concerted refusal in the course of their employment to perform services or to transport, handle or receive goods, articles, materials or commodities transported by Schultz, in order to force or require any other employers or persons to cease doing business with Schultz; (2) that since on or about April 15, 1948, Respondent has entered upon a course of conduct calculated to intimidate and coerce employees of Schultz and in the furtherance of such end, the Respondent has caused its members to follow Schultz' trucks along their delivery routes and, by coercion, intimi- dation and acts of violence directed against Schultz' drivers, has deprived and is depriving the aforesaid employees of the rights guaranteed in Section 7 of the Act; (3) the Respondents through the action of certain of its agents, to wit: Samuel Breenen, John Durkin, and Samuel Dorff, has inflicted bodily injury to certain of Schultz' employees ; and (4) by the acts described above the Respondent has restrained and coerced the employees of Schultz in the exercise of the rights guaranteed in Section 7 of the Act, all in violation of Section 8 (b) (1) (A) and 8 (b) (4) (A) of the Act. Copies of the complaint with notice of hearing thereon were duly served upon the Respondent and Schultz. On October 19, 1948, the Respondent served and filed its answer to the complaint in which it denied the commission of the unfair labor practices alleged, and affirmatively alleged that Schultz had refused to. bargain with Local 807 in violation of Section 8 (a) (5) of the Act; and that in violation of Section 8 (a) (3) -of the Act, Schultz had locked out and dis- charged his employees who were members of Local 807. Inasmuch as the General Counsel had not authorized the issuance of a complaint against Schultz on such charges, the issues attempted to be raised by the Respondent's affirmative defense were not litigated herein. Pursuant to notice, a hearing was held at New York, New York, from October 19 to October 25, 1948, before Peter F. Ward, the Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and Schultz were represented by counsel, and all participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing, the General Counsel offered in evidence two certain affidavits bearing the signature of John Lumpkin, a witness called on behalf of the General Counsel. Such affi- davits are marked for identification as General Counsel's exhibit numbers 7 and S. The undersigned received said exhibits over the objection of counsel for the Respondent, but subject to a motion to strike. Counsel for the Respondent made an immediate motion that said exhibits be stricken. The undersigned denied the motion with a proviso that it might be renewed at the end of the hearing. Such motion was renewed at the close of the hearing at which time the undersigned reserved ruling thereon. For reasons stated in detail below, the undersigned hereby grants motion of Respondents' counsel to strike General Counsel's exhibits numbered 7 and 8 from the record.' The undersigned also reserved ruling on the motion of counsel for the Respondent to strike certain 2 It is hereby ordered that General Counsel's exhibits nos. 7 and 8 stricken from the record as above ordered be retained in the files herein as rejected exhibits. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC . 515 testimony of the said witness Lumpkin and now rules that said motion be denied. Also at the close of the hearing, the General Counsel moved to conform the complaint to the proof as to formal matters, which motion was granted without objection. Counsel for the parties availed themselves of an opportunity to argue orally at the close of the hearing, and their argument is included in the transcript of the proceedings herein. Counsel for the parties were advised that they might file briefs together with proposed findings of fact and conclusions of law with the undersigned. The General Counsel and the Respondent's counsel filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF SCHULTZ Schultz Refrigerated Service, Inc., is and has been since about 1936, a corpora- tion organized under the laws of the Commonwealth of Pennsylvania. The cor- poration now maintains its principal office and place of business at Route 26, Brunswick Pike, near Trenton, New Jersey, and has been continuously engaged from said place of business in the transportation of perishable goods by truck. During the year ending June 1, 1948, the corporation in the course and conduct of its business operations transported perishable goods among and between the States of New York, New Jersey, Pennsylvania, Maryland, Delaware, and the District of Columbia.' The record discloses that Schultz' operations are in the main concerned with interstate transportation. The undersigned accordingly finds that Schultz is engaged in commerce within the meaning of the Act. II. TIIE ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Truck Drivers and Chauffeurs Local Union No. 807, affiliated with the American Federation of Labor, is a labor organization within the meaning of the Act. It admits to membership employees of Schultz. III. THE UNFAIR LABOR PRACTICE A. The alleged violations of Section 8 (b) (1) (A) by Respondent4 1. Background events The record discloses that out of the approximately 1,800 employers in New York City and vicinity requiring the services of truck drivers, Chauffeurs, ware- housemen etc., Local 807 has contracts with some 800 of them ; that approxi- mately 30 out-of-the State carriers handling refrigerated freight and its import into New York City employ some 400 Local 807 members to relieve their "over- 3 The facts found in this section are based upon the stipulation of the parties. While counsel for the Respondent was asked to stipulate that Schultz transported goods valued in excess of $100,000,000 during the year preceding June 1, 1948, he declined to stipulate as to the amount, since he had no "active knowledge," but did stipulate that Schultz was engaged in interstate commerce. 4 By stipulation of the parties the issues in connection with the alleged violations Sections 8 (b) (1) (A) and 8 (b) (4) (A) were, in the main, tried separately. This report deals with the issues in the same sequence as that which was followed at the hearing. 877359-50-vol. 87-34 516 .'DECISIONS OF NATIONAL LABOR RELATIONS BOARD the-road drivers";' and that Schultz on, and for a number of years prior to, August 31, 1948, employed some 17 of such latter group of Local 807's numbers to relieve his over-the-road drivers who came into New York City. The record further discloses that for at least S years Schultz operated a termi- nal in New York City to which his over-the-road drivers brought his loaded trucks and regularly turned them over to the regularly employed drivers of Schultz, who were members of Local 807, for delivery of the refrigerated mer- chandise to consignees of Schultz and the pick-up of similar merchandise for transportation back to the States other than the State of New York, through which Schultz operated ; that for a number of years ° Schultz had operated under a closed-shop contract with Local 807, the last of such contracts was executed on or about September 1, 1946. and was clue to expire on August 31, 1948; that during the early summer of 1948, Schultz determined to give up the operation of his New York terminal and also a terminal he operated at Philadelphia and consolidated the two terminals at some point in the State of New Jersey; that pursuant to such determination and on or about June 29, 1945,' Schultz, by letter, informed John Strong, president of Local 807 that he did not intend to renew the contract existing between his Company and Local 807, and that he "intended to move from New York City sometime prior to the expiration of the contract" that prior to the expiration of the contract as above found , by Strong by letter re- quested Schultz to enter into bargaining negotiations in anticipation of the expiration of the existing contract, but no negotiations were had; that prior to August 28, Schultz rented a new terminal site on Brunswick Pike, Slackwood, New Jersey, where he subsequently consolidated the operation formerly con- ducted at his New York City and Philadelphia terminals; and under date of August 27, Schultz wrote President Strong of Local 807 as follows.: DEAR SIR : Please be advised that I am enclosing my New York Terminal as of the close of business on Saturday, August 28, 1948. I, intend to abide by the provisions of the present contract that this company has with your local Union. My new place of business will be on the Brunswick Pike, at Slackwood, New Jersey. Any of our present 807 employees who care to work from that terminal until the expiration of the present contract will be assigned to work e The record further discloses that on Friday, July 27, 1948, Schultz went to the headquarters of Local 469, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, hereinafter called Local 469, and asked the latter to enter into a contract with him to furnish truck drivers to operate from his new terminal at Slackwood, New Jersey e The contract entered ° "Over-the-road" drivers are those who truck merchandise , refrigerated and otherwise, from States other than New York into the City of New York, where for a number of years it has been the custom for such over-the-road drivers to take their trucks to their employer's New York terminals where the trucks were taken over by drivers, who were members of Local 807. and who were regularly employed by the owners of the over-the-road or out-of- State trucks for the purpose of making deliveries to, and pick -ups from , the customers and consignees of such truck operators. The trucks are then returned to the terminal and re-manned by the over-the-road drivers who take the trucks out of the city. ° Schultz estimated such period as 11 or 12 years. Unless otherwise specified all events referred to herein occurred in 1.948. The record discloses that this letter did not reach Strong until August 30. Slackwood, New Jersey, is within the jurisdictional area controlled by Local 469. [NIEI,NAT1ONAL BROTHERHOOD OF TEAMSTERS, ETC. 517 into with Local 469 by Schultz was a closed shop contract10 due to expire on August 31, 1998. The record indicates that Schultz had an oral agreement to the effect that he would sign a further contract with Local 469 when terms of the new contract had been agreed to by all the operators in the Slackwood, New Jersey, area. By the closing of the New York City and Philadelphia terminals and their consolidation in New Jersey, Schultz was able to make substantial savings'on insurances and rentals; and under the terms of his contrast with Local ^63, under which the truck drivers worked a 10-hour day at i;1.25 pc r hour before overtime pay accrued, as compared with an 8-hour day at $2.00 per hour provided by his contract with Local 807, Schultz likewise made substantial savings on pay- ment of wages. Schultz moved his New York City terminal activities to Black- wood, New Jersey, on August 28 and prior to this date had not informed his Local 807 employees of his plans to do so. In this connection Schultz testified: Q. Were there any conferences between you and the men with respect to their moving to Jersey and working in Jersey prior to August 28, 1948? A. None whatsover. Q. Did you speak to any of the men and tell them you intended to move to New Jersey prior to August 28, 1948? A. I did not. Local 807 employees of Schultz did not learn that Schultz had moved his terminal pperations out of New York City until they reported for. work on Monday, August 30." It appears from the record that Schultz moved his equipment and office files from his New York office to Slackwood on or about Saturday, " August. 28, but still retained a telephone office in New York City in charge of Gertrude Bernardo who had heretofore served as Schultz' "dispatcher and office manager" in New York City. . Some 2 weeks prior to August 28, Bernardo was in Philadelphia and in the presence of Dan Heenan, operations manager for Schultz, and Schultz, heard the latter state that he was going to take all of the equipment and everything that belonged to him out of New.York and the only thing he "would have in New York was phones to receive calls." According to Bernardo the plan had been to move the equipment out of New York on August 23, but th;.s was not,done "because something went wrong." On Sunday, August 29, Heenan called Bernardo's house ; in this connection she testified : Q. Sunday, August 29th, Heenan called your house? A. Yes. Q. All right, go ahead. A. He was down taking the equipment out, and he wanted me to come down and give him the time cards and everything out of the office. So I went down, and I gave him the time cards, and I said, "What about the men tomorrow?" He said, "As far as we are concerned, they are finished." I said, "The contract isn't finished." He said, "Lou Schultz knows what he is doing." "On August 27 when this contract was executed, Schultz had no employees who wore then members of Local 469. . "The findings in this section are ha sod upon stipulations of the parties and upon undis- puted and credited testimony of witnesses for the parties. As is disclosed below some office equipment was moved on Sunday, August 29. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Then he said, "The checks will be in Monday," normally they get paid Fridays. Q. Normally they would get paid on Friday, September 3rd. Is that right? A. Yes. Q. But he said the checks would be there.... A. Monday morning, which they were." Schultz' letter of August 27 to President Strong of Local 807 and received by Strong on Monday, August 30,14 stated in part : My new place of business will be on the Brunswick Pike at Slackwood, New Jersey. Any of our present 807 employees who care to work from that terminal until the expiration of the present contract (August 31, 1948) will be assigned to work. [Emphasis supplied.] Insofar as the record discloses Schultz' New York employees, all members of Local 807, did not learn that Schultz had moved his terminal headquarters out of New York until Monday, August 30, and had not been given an opportunity to report to Slackwood for work on that day nor does it appear that Local 469 drivers who brought Schultz' trucks into New York City on that Monday morn- ing had been instructed to turn the trucks over to the New York drivers for the purpose of making deliveries and pick-ups as had been the custom. 2. Intimidation ; violence ; restraint and coercion, for which the Respondent was allegedly responsible The record discloses that certain acts which would amount to restraint and coercion against Schultz ' employees who were members of Local 469, were com- mitted by Schultz' employees and ex-employees who were members of Local 807, if such acts were committed as agents of the Respondent . The record further discloses the commission of certain acts of violence and contains testimony of other alleged acts of violence. The real issue in this section is whether or not the Respondent was and is responsible, as principal, for any of the acts of restraint and coercion committed by Local 807 members , or for the acts of violence and alleged acts of violence com- mitted by persons not identified in the record. The complaint names but three Local 807 members lc as "agents" " of the Respondent, who as such agents are charged with inflicting "bodily injury to cer- tain of Schultz' employees." In the case of Sunset Line and Twine Company, 79 NLRB 1487, the Board, in setting forth , in abstract , those fundamental rules of the law of agency which it deemed must control its decision of the issue of responsibility in that and similar cases, stated , inter alias 1. The burden of proof is on the party asserting an agency relationship, both as to the nature and extent of the agent's authority . In this case, for example, it was incumbent upon the General Counsel to prove, not only that the acts of restraint and coercion alleged in the complaint were committed, 13 The testimony of Bernardo above set forth was not denied and is credited by the undersigned. 14 Schultz testified that this letter was received by Strong on Monday morning, August 30. 15 The Act does not regulate the conduct of individuals acting in a private capacity ; only employers of labor organizations or their agents can commit unfair labor practices. See Matter of Sunset Line and Twine Company, 79 NLRB 1487. I" Samuel Brennan, John Durkin, and Samuel Dorff. INTERNATIONAL BROTHERHOOD OF. TEAMSTERS, ETC. 519 but also that those acts were committed by agents of the Respondent Unions, acting in their representative capacity . The Respondent's failure to intro- duce evidence negating the imputations in the complaint did not relieve the General Counsel of that burden ( citing cases). (a) John Lumpkin ; the incidents of August 31 , September 1 and 3 Lumpkin, a truck diver and a member of Local 469, has been employed as such by Schultz since about July 19. On the morning of August 31, he took a truck load of merchandise to New York City for delivery. His first point of delivery was to Loyal Blanchard, a consignee of Schultz, on Gansevoort street. While en route to Blanchard's an 807 man (subsequently identified as John Durkin), 7 jumped on the running board of his truck, and said, "Schultz is on lock-out, locked us out. You are not allowed to make any deliveries." When Lumpkin asked, "What am I supposed to do?" Durkin replied, "You take the truck back to 16th Street where you have two of your other trucks parked . You might as well go back and keep them company ." When Lumpkin said, "I have got orders to deliver," Durkin said, "Well you better go back with the other guys." When asked if he recalled any further conversations, Lumpkin replied : Yes, whatever the man was he says, "You know we have got a family to keep too. If you take our-job away from us we won't have any." Among the group of men who followed Lumpkin's truck to 16th Street was Johnny Payne, a member of Local 807. At the 16th Street stop Lumpkin ex- changed books with some of the men who followed him, some of whom had 807 buttons and books and some did not. On September 1, pursuant to instruction Lumpkin again took a truckload of goods to New York for delivery. He took his truck directly to Schultz' New York office and found four men standing there, among whom were Dorff and Brennan who informed Lumpkin that "Here we are again, we are out on strike again, 807 is out now."" When he was advised that the "strike" was on again, Lumpkin said, "Well, being you are on strike I am not going to take the truck out." Lumpkin permitted his truck to stand at Schultz' office all day. When ready to leave he told William Nelsen, an 807 man, who had been employed by Schultz for some 6 years, that "we are taking the truck back full," to which Nelsen replied : That's a damned good idea. Take the truck back. You know we can get rough if we want to but we do not want to. We can get rough and get away with it." 17 During his examination in this connection , Lumpkin was asked to identify the indi- vidual who jumped on the running board of his truck , but refused, and continued to refuse to identify such individual. Although urged to do so by the undersigned and by counsel for the Respondent. The latter stipulated that Durkin was the individual in question. Lump- kin's refusal to give names of Local 807 men in this and other occasions is discussed in further detail below. 11 The record indicates that Local 807 men on Monday, August 30, claimed Schultz had locked them out and they called a strike ; on that same day, Schultz agreed to retain 807 employees on the pay roll until midnight August 31 , 1948, the date the contract between Local 807 and Schultz expired by its terms. 11 This is the last of several not inconsistent versions , as related by Lumpkin , of Neisen's reply to his statement that "we are taking the trucks back full," and was given after Lumpkin had been permitted to refresh his recollection from an affidavit he had executed for a Field Examiner of the Board. Nelsen although available was not called as a witness. 520 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD- Lumpkin then returned to Slackwood with his truck still loaded. On September 3, Lumpkin made his third trip to New York on behalf of Schultz for the purpose of picking up a load of "skids" at Schultz' New York office. After the truck had been loaded and Lumpkin and his helper started the truck, a pin coupling "the box" to the truck dropped from its position with the result that the "box" dropped into the street. Lumpkin reported the matter to Schultz by telephone at Philadelphia and was instructed to get the box back the best way he could. Arrangements were made with a wrecking company "to get the box lifted up." While waiting for the wrecking company "to get the box lifted up," Lumpkin and his helper went to a restaurant to eat-when Lumpkin came out of the restaurant he was accosted by three men, one of whom stated, "You are the rat we are after." Lumpkin ran into Schultz' office where he was followed by the three men above referred to, and was brutally beaten and kicked by them with the result that he was left with a "skinned" back; battered ribs ; eyes "blacked"; and his lip "busted." In connection with the above incident, Lumpkin testified : By Mr. LELAND : , Q. Were these 807 men that beat you? A. I presume they was, yes. Q. Dir. Lumpkin, I am going to have to refresh your recollection in this respect. Do you know Mr. Samuel Brennan? A. I do know him. Q. Was he one of the three men? A. That I couldn't say because when they came running at me I could not stop to see who was coming at me. I just took heels and run. Q. Mr. bumpkin, do you know Mr. John Durkin? A. I can't say that I do. Q. How about Mr. Samuel Jordan? 20 A. Yes, I know Jordan. Q. Was he one of the men? A. I repeat my conversation of before. When they came after me I just highballed. Lumpkin testified that summonses were issued against these men,21 that he attended the Magistrates Court but refused to prosecute , and that the case was dismissed, In connection with Lumpkin's examination , the General Counsel, on the theory that Lumpkin was so terrified as a result of the beating he received on • Sep- tember 3 that he was, in effect , incapable of testifying to the facts concerning the events of August 30, 31, and September 3, offered in evidence two affidavits, (1) purporting to detail the events of Lumpkin's experience of September 3, hereinabove referred to, including the names of his alleged assailants ; and (2) an affidavit purporting to detail the events of Lumpkin's experiences on 20 The complaint alleges that Samuel Brennan , John Durkin , and Samuel Dorff, as agents of the Respondent , inflicted bodily injury on certain of Schultz' employees, but no allega- tion as to Jordan was made. - ' It is not clear from the record whether the General Counsel by his questions and Lumpkin by his answers had reference to a group of three men which included Jordan or Dorff as one of the three. It may well be that no one named "Jordan" was meant by either the General Counsel or by Lumpkin , since Jordan 's name was not included in the com-* plaint . Lumpkiu did not testify that he personally filed charges in the Magistrates Court and the record does not otherwise indicate who filed such charges. - INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 521 August 30 and 31. Both affidavits were offered, not for the purpose of impeach- ing Lumpkin's testimony, but as proof of the statements contained in the affidavits. In his brief, the General Counsel contends that: Lumpkin, throughout the testimony, was trembling with fright. He ad- mittedly was terrified of the consequence of testifying the proceeding and it is submitted that his trepidations were not without good cause . . . During the hearing the undersigned noted that despite numerous objections of counsel, interruptions and arguments, Lumpkin's testimony was, on the whole, responsive and consistent, except that it was apparent that he was determined from -the outset that he would not give the names of his alleged assailants or the name of the person who boarded his truck on August 30. While it may not be said that Lumpkin was wholly composed while on the witness stand neither can it be said that he "was trembling with fright." The most that can be said, in the opinion of the undersigned, is that he was somewhat restless and ill at ease, a condition that is not unusual for witnesses to reach in cases that are aggressively tried, as was the instant one. As to Lumpkin being admittedly "terrified," Lumpkin testified in response to a question by the General Counsel that he was "afraid" to identify the man who boarded his truck on August 30; and subsequently refused to name his al- leged assailants of September 3, a fact from which it might be inferred that he had some fear when asked to name them, if in fact he knew their names. In this connection, Lumpkin testified : Trial Examiner WARD. I again suggest the witness identify the party. The WITNESS. Mr. Examiner, as I just spoke to you a minute ago since the affidavit was taken, on Tuesday (August 31) and on a Friday (Septem- ber 1) I was beat up near the office. Trial Examiner WARD. What office? The WITNESS. The Company's New York office. Trial Examiner WARD. Do you know who beat you up? The WITNESS. No, I just heard names mentioned, that's all. Trial Examiner WARD. I beg you pardon? The WITNESS. I only heard names mentioned. I don't know who they were. By Mr. LELAND : Q. Were they 807 men? A. Yes. Mr. COHN. Did you just say you don't know who they were? The WITNESS. I don't know their names, No. For the purpose of refreshing his recollection, the General Counsel handed Lumpkin the affidavit covering events of September 3, concerning which Lump- kin testified : By Mr. LELAND : Q. Does it refresh your recollection? A. It does. Q. What? A. It does, but all I heard was first names mentioned. Who they were- (answer interrupted by Mr. Leland's offer of affidavit in evidence). [Em- phasis added.] 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel's brief, in part, states : It is now firmly established in New York that if a witness' recollection is not refreshed or revived by an inspection of a writing so to enable him to testify on certain matters, the writing may be used, subject to certain limitations, in connection with, and an auxiliary to, the testimony of the witness. Citing Merrill v. The Ithaca and Oswego R. R. Co., 16 Wend (N. Y.) 586, 30 A. M. Dec. 130; and Halsey v. Sinsebwtgh, 15 N. Y. 485. The citations are inapplicable here since Lumpkin testified that the affidavit did refresh his recollection but went on to state that he only heard "first names" and did not explain, nor was he asked to explain, the source of his information, if any, which supplied the last names or surnames included in the affidavit. The General Counsel's brief further states, "Courts have held that on failure to identify on the stand, a former identification is admissible." (Citing State v. O'Adaine, 84 NJL 386, 36 ATL 414; and State v. Kysilka, 84 NJL 6, 87 ATL 79). Both of the cited cases had to do with criminal prosecutions. In each case the witness failed to identify the parties charged with the criminal offense dur- ing trial of their cases and substitution of a prior identification was attempted. In the O'4dame case, the syllabus prepared by the Court states : Where a party is "surprised" by adverse testimony of a witness called by him, the trial court may, in the exercise of sound discretion, permit him to offer proof of self-contradictory statements previously made by witness, for the purpose, not of proving the truth of such statements, but to "dis- credit" or neutralize the effect of such adverse testimony. The trial court will, upon request, and should without request, limit the effect of such proof to this purpose. [Emphasis supplied.] The Board has held that sworn statements and affidavits of witnesses fur- nished to Board Agents or Field Examiners are admissible for the limited pur- pose of impeaching contrary testimony given at the hearing 2a In the Matter of Douglas Silk Products Company, Incorporated, 63 NLRB 1280, the Board found that an employee denied that he read a sworn statement made by him to a Board Agent or that it had. been read to him at the time of his signing every page thereof, statement was received in evidence as Board's Ex- hibit over Respondent's objection, but not as affirmative evidence, per se, of truth of the contents thereof. In the absence of an authorizing statute or rule of court, ex parte affidavits may not be read in evidence in the determination of material issues of fact; .such matters are to be proved or controverted by the testimony of competent witnesses taken at the trial or by deposition, so as to permit cross-examination. 2 C. J. 2d 985, U. S. Fidelity & Guaranty Co. V. Commercial National Bank, 55 F. 2d 564. From the foregoing and the record it is clear that Lumpkin's affidavit pur- porting to relate the details of September 3 may not be received in evidence as proof of the contents thereof. It is so found: The rejection of such affidavit, as proof of its contents as above ordered, is required. All that the undersigned has found with reference to Lumpkin's affidavit cov- ering the events of September 3 as proof of the content of such affidavit, is equally applicable to his affidavit covering the events of August 30 and 31. The 52 See Prigg Boatworks, 69 NLRB 97; Pillsbury Mills, Inc., 74 NLRB 1113. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 523 rejection of the latter as proof of its contents, as above ordered, necessarily follows. While no findings may be made upon the basis of Lumpkin's affidavits, his uncontradicted and credited testimony discloses that upon August 31 and Sep- tember 1, he was by restraint and coercion on the part of members of Local 807 kept from making deliveries to Schultz' customers and consignees, and on Sep- tember 1 particularly was induced to return his loaded truck to Shultz' Slack- wood terminal without making any deliveries, which raises the question as to whether or not these members of Local 807 were acting as agents of the Re- spondent, so as to make the Respondent responsible for their acts, or were acting as individuals, in which event the Respondent would not be liable for their acts. The issue of Respondent's liability in this connection is discussed below. (b) William Crenshaw incident of October 15 Crenshaw in company with another employee of Schultz reported for work at Trenton (Slackwood), New Jersey, early on the morning of October 15. Pur- suant to instructions Crenshaw and his associate took a truck to New York City where they made certain deliveries and pick-ups. They then reported to Ber- nardo, Schultz' office manager, who instructed them to "bring the truck around by the office." They did as instructed and were then told that there were no further pick-ups. When they were in the truck, ready to leave, Sam Brennan, a former employee of Schultz and a member of Local 807, in the presence of four or five former employees, grabbed Che.nshaw by the arm and said he wanted to talk to him. Crenshaw replied that he did not want to talk to Brennan as he had work to do. When Brennan attempted to pull Crenshaw from the truck, the latter brandished an iron hook which caused Brennan to release his hold on Crenshaw's wrist, whereupon Crenshaw and his companion drove off. Crenshaw exhibited a scar or a mark on his wrist which he stated was caused by Brennan's finger- nail." Brennan was the only member of the group of Schultz' former employees present on this occasion who said anything to Crenshaw. Brennan is one of the three Local 807 men, formerly employed by Schultz, named in the complaint to have inflicted bodily injury upon certain of Schultz' employees, while acting as agent of the Respondent. Other than the above- described incidents there is no evidence in the record tending to prove that Brennan had inflicted any bodily injury on any of Schultz' employees. There was no evidence in the record that'the members of Local 807 ever established a picket line around Schultz' New York office'4 Respondent's alleged liability for Bren- nan's conduct in this instance is discussed below. (c) Ogborn Smith's testimony Smith's examination covering some 25 pages of the official transcript proved to be indefinite in the extreme. But two matters appear to be material here, (1) Smith testified that when he sought to back his truck into the platform at "Cold 23 At the request of counsel for the Resopndent the undersigned examined the mark on Crenshaw's wrist and stated for the record : "The mark, whatever it is, or however it was occasioned, is about half the size of the eraser on a normal pencil." 24 Insofar as it appears from the record, the only time the members of Local 807 ever established any picket line or did any picketing was on those occasions when the members of Local 807 picketed around Schultz' trucks when he made or attempted to make deliveries to and pick-ups from his customers and consignees, more particularly described in Section III B below. 524 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Storage," "Somebody hollered, `You better not back in,' don't know the exact words so I just thought from the tone of voice and all the way it was best maybe I wouldn't back in. As it turned out there wasn't a spot ; anyway, I didn't back in"; and (2) on*an occasion when Smith had lunch with Niesen, a former employee of Schultz and a.member of Local 807, Smith informed Niesen that he was going back to Trenton, Niesen said, "It is a good thing you are going back to Trenton, otherwise you would be looking for trouble." On cross-examination, . Smith testified in part: Q. On September 3rd, which was the date you had the conversation in the restaurant (with Niesen) and the date you did not deliver merchandise but decided to go back to Trenton there was a city-wide trucking strike in New York, was there not? A. I believe there was. The sum total of Smith's testimony is that "somebody" unidentified in the record, told him not to back his truck into the platform at "Cold Storage"; and Smith's statement to Neisen, while the two were at lunch, that he was returning to Trenton, and Neisen's reply, "It's a good thing you're going back to Trenton, otherwise you would be looking for trouble." While Niesen's statement may have contained an implied threat, under the circumstances one may not infer that Niesen was speaking for or in fact acting in behalf of the Respondent. The complaint does not allege that Niesen was acting as an agent of-the Respondent. (d) Wa.verly L. Browder; incidents of September 7 and 8 On September 7 Browder made certain deliveries in New York City. He later started to make pick-ups. In the course of his pick-ups he stopped at "Break- stone" to make a pick-up of cheese. According to Browder, three Local 807 men accosted him and the shipper at Breakstone. The three union members asked Browder why he "was picking up," and if he didn't "know there was a strike on?"-Browder said he did, but that his Union was "working in Trenton, 469." The 807 men said, "You cannot pick up here," whereupon one of the shippers pulled the plank away from Browder's truck and refused to deliver it drum of cheese for which he had already signed, and requested return of the signed slips, whereupon Browder erased his name from the slip. An 807 man then said to Browder, "You guys ought to get the hell out of New York and stay out while there is trouble going on over here. You cannot pick nothing up." According to Browder he had been stopped previously, at a time he did not recall or where he was "heading for" when he was stopped. He was stopped at Holland Tunnel and called a "scab," and told by an 807 man, not one of Schultz' men, to "turn around and get the - out of New York, or else." According to Browder, on September 8 he went into New York about 9 a. in. by way of Holland Tunnel and went up Canal Street to about West Street and 19th, where he stopped for a red light. As he started up "approximately" 15 to 20 men "covered" on him. "One jumped on either side of my running board and one fellow on my side tore the mirror off." Also according to Browder, his helper, one Keyes, pushed the man off the running board on his side ; the man with de- tached mirrior asked Browder, "What are you doing in New York? Don't you know there is trouble going on?"; when Browder answered "Yes" the man with the mirrior said "We are going to escort you to the Tunnel. Get to hell out of here and stay out or else" ; and thereafter the group turned Browder around, headed him for the Tunnel and followed him "clean into Newark." When asked if he INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 525 knew any of these men Browder said, "No, they are not Schultz' men. They are -807 men." He further testified: Q. How do you know that? A. I exchanged books with them. On cross-examination, Browder testified that the 15 or so men who stopped him on September 8 and headed him back through Holland Tunnel into New Jersey, claimed to have been ex-workers for Schultz, but that he later learned who the Schultz workers were and learned that the claim of the group that stopped him on September 8 was untrue. Browder's testimony above with reference to the alleged events of September 8 fails to identify any of the group who claimed to be Local 807 men. While Browder's testimony is to the effect that the group treated him, his helper, and his truck with violence, he. also testifies that he "exchanged books with them." Such a transaction would seem to indicate that at least a part of the meeting between Browder and the alleged group of 807 men was on a friendly basis, which might well have resulted in persuading Browder to return his truck to New Jersey without the alleged 807 men engaging in any violence. Browder's testimony to the effect that his helper, Keyes, "pushed the man off the running board on his side," would seem to indicate that a group of 15 alleged ?S07 men did not take full advantage of their superiority in numbers. Keyes was not called as a witness, nor was he shown to be unavailable. (e) Horace Hopkins; the incident of August 30 Hopkins' undisputed testimony discloses that he worked for Schultz in the New York City area on August 30 only; that when he arrived at Schultz' New York office on that morning John H. Boyland, business agent for Local 807, informed him that Schultz had locked out Local 807 men, and that Hopkins had no right to make any deliveries or pick ups "because it (deliveries and pick ups) was under the jurisdiction of 807"; 2' that under orders from Office Manager Bernardo, he went to Manhattan Coal Storage to make some pick-ups and was followed by two Local 807 men (later identified as Johnny Payne and George Heim), who in- formed him that he better not make any pick-ups, and that they had asked "the glen" (not further identified) not to load him with pick-ups; and that the two Local 807 men above referred to told him "to get out of town if he knew what was good" for him 28 (f) Frank Brophy and the "Freddie" incident of October 18 On October 18 21 Brophy under, instructions, took a truckload of merchandise from Slackwood to New York City for delivery. He was further instructed to make certain pick-ups. He made all deliveries, except one, with reference to Nbhich he had been told to wait at the New York office for instructions which would be telephoned or sent from Philadelphia. Brophy waited for such instruc- tions but they were not sent. It should be noted that the contract between Schultz and Local 807 did not expire until August 31, 1948. 2" Hopkins further testified that he "was to pick up a man (member of Local 807) to go with me on my deliveries and also my pick-ups the day I arrived in New York on August 30th." It is clear from his testimony that he made no request for and that the office manager made no assignments of 807 men to make, or assist him on making, deliveries in picks-ups on this occasion. n The hearing herein began on October 19. 526 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD While he was waiting in Schultz' office two policemen brought a young man into the office whom they identified merely as "Freddie" and stated that they had caught him "banging up" Brophy's truck on 16th Street, where it appears Brophy's helper had left it unattended. Brophy immediately investigated the damage and, according to his testimony, found the windshield and a side window broken ; the dashboard "all broke up"; all wiring under the dashboard pulled ; the wiring on the motor pulled ; all air lines broken ; and the "fifth pin," by which the trailer was attached to the truck, had been pulled. Brophy said, in answer to a question, that "Freddie" was not wearing an 807 butaon. The General Counsel, in his brief filed with the undersigned, stated: "Although Brophy could not more specifically identify `Freddie,' he stated defi- hitely that he saw him seated with Local S07 men in the Hearing Room, Tuesday, October 19, 1948." In this connection Brophy testified : By Mr. LuLAND : Q. Mr. Brophy, were you in the court room the day before yesterday? A. In here? Q. Yes. A. I was. Q. Did you see that man in the room? A. I believe he was. Brophy subsequently further testified : By Mr. LELAND : Q. Was he wearing an 807 button? A. No. Q. Can you tell me where he was sitting? A. In here? Q. Yes. A. No, I seen him outside. Q. But you definitely saw him? A. I saw him Tuesday, yes, sir. If I saw him again I could tell you. If he was sitting here I could pick him out. From all of which it appears that "Freddie" was in the vicinity of the Hearing Room, but the undersigned cannot find that he was "seated with" the Local 807 men seated in the Hearing Room on October 19. Concluding Findings From. the foregoing and upon the entire record the undersigned concludes and finds, as to, (a) Lumplcin, that on August 31 he was induced by John Durkin, then a Schultz employee on strike, and a member of Local 807 from making certain de- liveries and coerced into parking his truck on "16th Street," at a point near or adjacent to Schultz' former place of business ; that September 1, when informed by employee members of Local 807, Dorff and Brennan, that the "strike" was on again, Lumpkin said, "Well, being you are on strike I am not going to take the truck out;" that after permitting the truck to stand at Schultz' office all day, Lumpkin informed William Nelsen, member of Local 807, that "we are taking the truck back full," Nelsen replied : INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 527 "Thats a damned good idea. Take the truck back. You know we can get rough if we want to but we don't want to. We can get rough and get away with it"; that, as is described above, on September 3, Lumpkin was brutally beaten and kicked by three individuals unidentified in the record herein. With reference to the events of August 31 and September 1, it is clear that Schultz' employees, some 16 or 17 in number, who were members of. Local 807, were on strike as a result of being locked out by Schultz on August 30; and while the men were on strike, there is no evidence that they established a picket line at or near Schultz' office; nor is ihere any evidence in the record indicating the presence of any Local 807 official at or in the vicinity of Schultz' New York office on either August 31, September 1 or September 3. Assuming aurgueudo, that Durkin's conduct in boarding Lunipkin's truck on August 31, and Neisen's state- ment to Lumpkin on September 1, would amount to restraint and coercion if made by an authorized agent of the Respondent, the record contains no credible evidence from which it may be found that either Durkin or Nelsen were or acted as such agents at the times above referred to. Since the Local 807 employees of Schultz believed that they had, without notice, been locked out by Schultz on August 30, had thereupon called a strike against Scriultz and since they believed Local 469 employees of Schultz were acting the part of strike breakers, it is reasonable to believe and infer that by engaging in such conduct and making such statements, Durkin and Nelsen were acting as irate individuals in a private capacity. The record will not support a finding that the Respondent is in anywise responsible for the acts, conduct, or statements of Schultz' Local 807 employees, as found above, to have occurred on August 31 and September 1. Nor will the record support a finding that the Respondent was responsible for the acts of the unidentified individuals who beat Lumpkin on September 3; as to, (b) Crenshaw, that on October 15, Sam Brennan, a member of Local 807 and an ex-worker for Schultz, committed a simple assault, as described above, upon Crenshaw in the presence of some four or five former Schultz employees, who were members of Local 807. None of this latter group participated in the assault on Crenshaw. The record will not support a finding that the Respondent was responsible for Brennan's conduct on this occasion ; as to, (e) Smith, that Nelsen's statement made to Smith while the two were lunching together on September 3, that: "It's a good thing you are going back to Trenton, otherwise you would be looking for trouble," would not be restraint and coercion per se 28 even if made by an authorized agent of the Respondent. In any event the record will not support a finding that the Respondent was responsible for such statement ; as to, (d) Browder, that his uncorroborated testimony concerning the alleged events of September 8 wherein be testified to no fact from which any member of the alleged group might be personally identified, will not support a finding that members of Local 807 ^' did in fact, by violence and threats, or otherwise, cause him to return his truck from New York to New Jersey on September S. ','It should be noted that on the occasion of restaurant meeting between Smith and Nelsen there was a city -wide strike of truck drivers on in New York . Nelsen 's advice to Smith may well have had reference to such city-wide strike at the time he made the state- ment . The fact that the two lunched togeter would indicate a lack of ill will between them. "The mere fact that an unidentified group of men may have worn 807 buttons during a city-wide strike, standing alone, is no proof that the members of such group were in fact bona fide members of Local 807. 528 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover such testimony fails to establish in any degree that such unidentified group were acting as agents of the Respondent 3D The record will not support a finding that the Respondent was responsible for the alleged acts of the group described by Browder ; as to (e) Hopkins, that it is clear from the record that on the day Hopkins sought to make deliveries and pick-tips on behalf of Schultz, Local 807 men were still under contract with Schultz to make such deliveries and pick-ups ; and that as between Local 807 and Local 469, Local 807 (lid in fact have jurisdiction and was entitled to make the deliveries and pick-ups on this date, August 30. It is also clear that such action as was taken by Payne and Heim in connection with the Hopkins incident of August 30 was taken by them as individuals in a private capacity. The record will not support a finding that Payne and Heim were acting as agents of the Respondent in their dealings with Hopkins ; and as to (f) Brophy and the "Freddie" incident, that while the record clearly discloses that someone was guilty of malicious mischief in damaging Brophy's truck, as above described, it furnishes no facts upon which the undersigned may base a finding that "Freddie" was in any way connected with Local 807 or that the latter was responsible for the conduct of "Freddie." Since the record discloses that two policemen had "Freddies" in custody for a time, it would appear that the General Counsel could, through his staff, have located and identified "Freddie" definitely. The above findings and conclusions disclose that the Respondent has not violated Section 8 (b) (1) (A) of the Act. It will be recommended below that the complaint, insofar as it so alleges, be dismissed. B. The violation of Section 8 (b) (4) (A) by Respondent 1. Picketing of Schultz as "primary employer" One of the issues in this section arises out of the fact that the General Counsel contends that the Respondent's pickets picketed the premises of Schultz' custo- mers and consignees. The Respondent, on the other hand, contends that the pickets, who admittedly followed Schultz' trucks to the business premises of his customers and consignees, picketed only the trucks, which picketing the Re- spondent contends amounted to the picketing of the primary employer since Schultz had no "place of business" in New York that could be picketed, other than the trucks used to pick up and deliver merchandise, and was done only at a time.when Schultz' drivers, members of Local 469, started to unload the trucks or make pick-ups. Schultz testified that on September 14, at about 10 a. in., lie went to the Man- hattan Refrigerating Company premises and found one of his trucks, in charge of Driver Brophy, across the street from the loading platform and that it was not being unloaded. Schultz then went into the warehouse and saw W illiam Haughton, the superintendent, and asked why his truck was not allowed to back in and deliver the merchandise. Schultz testified : By Mr. LELAND : Q. Can you give us the exact words at this time? A. He just told me that he would not take the goods in because he was threatened with a picket line by 807 men and also with a strike by his own men. He further stated that he had put a call through to reach Mr. Storer, 30 The events of September 7 and Browder's alleged attempt to pick up cheese at "Break- stones" is discussed in Section III B below. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 529 who I believe is vice president of Manhattan Refrigerator and asked me to wait there until Air. Storer arrived so he can straighten this matter out. I waited approximately three-quarters of an hour. I told the driver who I believe was Brophy to back the trailer into the platform and told him to start unloading the cans on the platform. After they had about 50 cans off two men started picketing. Q. Who were those men? A. Phillip Zitter and Sam Funt. Q. Are they members of Local 807? A. They are members of Local 807 and my former employees. They carried picket signs, to the best of my recollection, which said, "Truck drivers employed by Schultz Refrigerator Service, Inc., locked out. Interna- tional Brotherhood of Teamsters, Local 807, affiliated with the A. F. of L." That may not be the exact wording but that is the substance of what the sign did say. By Mr. LELAND: Q. Mr. Schultz, once the picketing commenced at Manhattan did any employee refuse to work on merchandise? A. I didn't get that. Q. Did any employee of Manhattan refuse to work on the merchandise? A. Yes, sir; they refused to touch it. Q. Refused to touch it? A. That's right. Q. Can you just describe that very briefly? A. I went over to Mr. Haughton with a shop steward and asked him why he refused to handle the merchandise that I offered for delivery. He told me the men would not handle the merchandise. Q. Where there is a picket? A. Where there is a picket line and also if they insisted on handling merchandise they may have a strike in their own plant. By Mr. LELAND : Q. Mr. Schultz, what action did the Local 807 men take as soon as your truck came up to the premises? What was the first thing they did? A. They stood there for a few minutes and as soon as we got some cans off the truck they started walking uwp and down alongside the truck. [Empha- sis added.] Schultz further testified, in connection with form of picketing, as follows : Mr. LELAND. What I am trying to do, Mr. Examiner, is to try to find out the exact circumstances, the exact type of picketing engaged in by Local 807. I want to know where the truck was parked, where the loading platform was, where the pickets are. Trial Examiner WARD. It is the atmosphere part. Proceed. By ScHULTZ : A. The end of this table right here is the loading platform (indicating). The truck is backed in the same as this table stands now. The truck is prob- ably 40, 45 feet long over-all. The picketing starts from that end of the table around to this, around to this side completely around the truck. They couldn't walk around the truck. The end was backed into the platform. 530 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sammie Funt was walking around this side of the truck around to the front of the truck and Phillip Zitter around this side. Triel Examiner WARD . Two of them with banners? The WITNESS . That's right, sir. And the rest of them were standing around the truck in front of the street . [Emphasis added.] By Mr. LELAND: Q. The truck entered the loading platform. There is.no space actually between the truck and the premises? A. No, .sir ; unless they got on top of the platform, which they did not do. Q. And the men were actually picketing from one end of the platform bound the truck to the other end? A. Completely around the truck. [Emphasis added.] * * * * * * By Mr. LELAND : Q. Mr. Schultz, what action did the Local 807 men take as soon as your truck came up to the premises? What was the first thing they did? I A. They stood there for a few minutes and as soon as we got some cans off the truck they started walking up and do20n alongside the truck. [Emphasis added.] The foregoing testimony had reference to events of September 14 occurring at Manhattan Refrigerating Co. On September 15, according to Schultz' testi- mony, he had a truck attempt to make deliveries to the Meadow Provision Company. He ordered the truck to park alongside of the platform. Schultz ,testified: . . . As, soon as I opened the side floor some men jumped out of one of the cars or both cars, I am not sure which, put the picket signs in front of them and start walking for the length of that truck on the premises of the Meadow Provision Company. [Emphasis added.] Counsel for the parties stipulated as follows : Mr. LELAND. I think Mr. Cohn and •I have just agreed to stipulate that the picketing engaged in was generally of the nature testified to by 1VIr. Schultz-and that there is no necessity of adducing the type of picketing therefor from other witnesses. Mr. COHN. No, that is the type of picketing that went on. In connection with the September 14 events, I3aughton, as a witness for the General Counsel, testified in part : Q. Can you tell me the first time the picketing -commenced that you saw? A. Well the time I seen the picketing start was probably when Mr. Schultz-would have, I'd say, 70, 80, 90 cans, something like that placed on the platform. And I seen one man, walking on one side of the truck and another man on the other. Q. The truck was backed up? A. That's right, the length of the truck. * * * * * * Q. Tell me when did you first speak to Mr. Sullivan." A. About the time the truck was backed in. 31 Sullivan, a business delegate for Local 818 of International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America, A. F. L., with whom Manhattan Refrigerating Co. had a contract, was present at the latter's warehouse on September 14. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 531 Q. Why? A. Because I understood from the shop steward that these people, these ex-drivers (Local 807 members) would picket the tru.clc. Q. The shop steward for 818? A. That's right. By Mr. LELAND : Q. Mr. Haughton, at the time that picketing commenced around the truck, did your men refuse to handle any of the merchandise? A. No, sir. They was (sic) not asked to do any. (All emphasis shown on Haughton's foregoing quoted testimony supplied.) On cross-examination Haughton testified in substance : that no one from Local 807 ever threatened him with a strike if he took delivery of merchandise from Schultz ; that he did not tell Schultz that Local 818 had threatened to strike if he took merchandise from Schultz ; that, he did not tell Schultz that Sullivan had stated that a picket line would be thrown around the premises of the Manhattan Refrigerating Co., and that he did tell Schulte' that Sullivan had told him "that the truck would be picketed." [Emphasis added.] Joseph K. Stover, vice president of Manhattan Refrigerating Co. called as a witness on behalf of the General Counsel, testified that he was called to New York on September 14, and with reference to picketing he testified : Q. Did you observe any picketing while you were at the plant in New York? A. Yes, I did, around the truck only. As above disclosed there is a conflict in the testimony of Schultz on the one hand and Haughton on the other hand. Insofar as their testimony is in conflict the undersigned credits the testimony of Haughton and finds that the latter did not tell Schultz that he [Haughton] would not accept delivery of merchandise "because he was threatened with a picket line by 807 men and also with a strike by his own men" ; that Haughton did not tell Schultz that the former would refuse to "handle the merchandise" offered for delivery by Schultz, because Manhattan employees "would not handle the merchandise" ; and that he did not tell Schultz that Sullivan had stated that a picket line would be thrown around the Manhattan premises by Local 807. The undersigned further finds that Local 807 pickets did not attempt to picket the premises of Manhattan Refrigerating Co. or the premises of other consignees or customers, as such, but did attempt to and did picket the Schultz trucks on this and other occasions at any and all times when the truck doors were open and attempts to load or unload it were being made in the presence of Local 807 pickets. 2. The nonparticipation of employees of Schultz' customers and consignees in the strike activities of Local 807 According to the uncontradicted and credited testimony of John Geruc, a witness called by the General Counsel, on September 14, as a truck driver for Schultz he made a pick-up from tinted Dressed Beef on Johnson Avenue, New York City ; while Gerue was at the United Dressed Beef location some Local 807 pickets arrived and started picketing Geruc's truck ; the pickets carried signs ;32 32 It was stipulated that the signs read as follows : "Truck drivers employed by Schultz Refrigerated Service locked out, IB of TC«' and H, Local-807, affiliated with A. F. of L." 877359-50-vol. 87--35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one of the pickets walked on to the platform and started talking to the "shop steward" ; Geruc' did not hear "that conversation" ; and during the time of the above conversation there was picketing going on "at the truck." [Emphasis added.] On September 15, Geruc stopped at a number of places where "the same activity took place and the men got out and picketed in substantially the same manner." 33 Geruc testified : Q. At each place that you stopped did S07 men have any conversation with employees of the consignees to whom you were delivering merchandise or made pick-ups? A. I don't know about the employees but they went to the boss. Q. What did they say? A. They said that they were locked out and Mr. Schultz is using strike- breakers to get the stuff in. Q. What happened? Dill they accept your deliveries at those points? A. No. Q. Did they speak to the shop stewards? A. I don't know who the shop stewards were in them plants. On September 7 Browder, as a truck driver for Schultz, went to Breakstones' to make a pick-up of a drum of cheese ; he signed a slip showing receipt of such cheese ; as he was about to load the cheese on his truck, 807 pickets arrived and talked to Browder and to the "shipper" at Breakstones; thereafter "one of the shippers pulled the `crank' (plank or skid) off the truck" and said, "I am sorry I cannot give you the cheese." When Browder said he had already signed for the cheese, the "shipper" said, "You will have to give me back the slips" ; Browder thereupon erased his name and returned "the slip." From the foregoing and the record as a whole it appears that when Schultz' trucks were picketed at the premises of his customers and consignees, the latter, with one exception,34 refused to accept deliveries, or deliver pick-ups to Schultz' drivers ; insofar as the record discloses there was no occasion upon which the employees of Schultz' customers or consignees refused to handle or work on any goods trucked to or from their employers by Schultz ; 3' nor was there any occasion when the said customers and consignees ordered or requested their employees to handle goods trucked in or out by Schultz' drivers. That the picketing of Schultz' trucks as is above described was at all times peaceful is undisputed. (3) The issues; contentions; conclusions The Respondent, in substance and effect, contends: (1) that its strike against Schultz was a strike against a primary employer with whom it had a labor "The parties, in substance and effect, stipulated that whenever Geruc tried to make a delivery his truck was picketed by Local 807 men. 34 Geruc, as related above, made a pick-up at United Dressed Beef on September 14. 3s Hopkins testified without dispute that Heim and Payne, members of Local 807, had "asked the men at Manhattan Refrigerator not to load me with any pick-ups and they would not give me any pick-ups so I called my employer. . . . From the foregoing testimony it is not clear that Hopkins actually had any personal contact with the "men at Manhattan Refrigerator" or whether lie relied on Heim's or Payne's statement that "they would not give" him any pick-ups. The quoted statement is insufficient to support a finding that Manhattan employees personally refused to give Hop- kins any pick-ups. However, in view of the undersigned fifindings in this section, Hopkins' above testimony becomes immaterial. - INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC . 533 dispute; that such strike was supported by peaceful primary picketing, con- stitutionally protected, thus was not violative of Section 8 (b) (4) (A) ; and (2) that the Respondent's activities in connection with such strike do not con- stitute inducement and encouragement of - employees in the course of their employment within the meaning of Section 8 (b) (4) (A) .w As to Respondent's contention (1): (a) Primary picketing as found above, the Respondent limited its picketing to Schultz' trucks n and exhibited picket signs stating : TRUCK DRIVERS Employed by SCHULTZ REF. SERVICE LOCKED OUT I. B. of T. C.W.&H. LOCAL 807 Affiliated with A. F. of L. Such signs were notice to the world that Local 807 had a labor dispute with Schultz, and when carried around or along sides of the trucks they became an invitation to Schultz' customers to discontinue dealing with Schultz. The signs made no appeal to third parties who dealt with Schultz' customers to discontinue their dealing with such customers. The undersigned finds that such picketing amounted to peaceful38 primary picketing of a primary employer. (b) Picketing protected under First Amendment and Section 8 (c) : The Respondent vigorously contends that such picketing is protected under the First Amendment and Section 8 (c) of the Act; 33 and further contends that if the provisions of Section 8 (c) are inapplicable to Section 8 (b) (4) (A), the latter section is unconstitutional" Contrary to the Respondent's contention herein, the Board, in the Matter of United Brotherhood of Carpenters and Joiners of America, District Council of 16 Insofar as is relevant such section makes it an unfair labor practice for a labor organ- ization or its agents: . . to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any sdrvice, where an object thereof is : (A) forcing or requiring any employer or self-employed person to join any labor or employer organiza- tion or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ; . 34 Also, as found above, on and after August 28, Schultz maintained no "place of business" in New York (other than a telephone office operator to whom drivers reported by telephone for instructions relayed by Schultz) where he could transact business with his customers and consignees, except the trucks which were used to make deliveries and pick-ups of mer- chandise to and from such customers and consignees. 38 That the picketing by the Respondent, referred to herein, was peaceful, is not in dispute. 31 Section 8 (c) : "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contained no threat of reprisal or force or promise of benefit." (Emphasis sup- plied.] 41 In the absence of applicable court decision to the contrary, the constitutionality of the Act is to be assumed. Matter of Rite-Form Corset Company, Inc., 75 NLRB 174. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kansas City, Missouri, A. F. of L. et at., and Wadsworth Building Company, Inc., and Kiassen & Hodgson, Ine., 81 NLRB 802, held that : . . . Section 8 (b) (4) (A) prohibits peaceful picketing, as well as other peaceful means of inducement and encouragement, in furtherance of an objective proscribed therein and that Section 8 (c) does not immunize such conduct. Moreover, at least two United States Courts of Appeal have recently ruled that picketing and other activities such as are involved herein, for a proscribed objective, were not constitutionally privileged.91 Absent the "primary picketing" element contained in the instant case, the issues herein and those of the Wadsworth case, supra, are substantially the same. In the latter case, the Board said: To warrant an unfair labor practice finding in this case under Section 8 (b) (4) (A), two factors must combine-(1) the alleged activities must have as an object the forcing or requiring any employer , inter alia, to cease using the products of any manufacturer or to cease doing business with any person ; and (2 ) the activities must constitute inducement and encouragement of employees in the course of their employment within the meaning of Section 8 (b) (4) (A). The absence of either factor will defeat the charges there- under. Applying the foregoing formula to the instant case the facts disclose : As to factor (1) that it is necessary to determine whether Respondent's activi- ties had as an object the forcing or requiring any employer, inter alia, to cease using the products of any manufacturer, or to cease doing business with any other person. In this connection it is admittedly clear that Respondent's pickets, before actually picketing Schultz' trucks in the manner above described, first called upon Schultz' customers and informed them in substance that Schultz had locked them out and was using strikebreakers (Local 469 members) to make deliveries and pick-ups, and requested such customers to discontinue doing business with Schultz. Following which 807 men picketed around the trucks when any attempt to load or to unload them was made. On the above and the record it is clear that an object of the Respondent's activities, above described, was in the lan- guage of Section 8 (b) (4) (A), "forcing or requiring any employer [customers and consignees of Schultz] . . . to cease doing business with any other person [Schultz]," in violation of said Section S (b) (4) (A), all of which leads to the conclusion that Respondent's contention (1) is without merit.42 As to Respondent's contention (2); and as to factor (2) -each of which per- tain to the question as to whether Respondent's activities constitute inducement 41 United Brotherhood of Carpenters and Joiners of America v. Sperry, 170 F. 2d 863 (C. A. 10) ; accord , Printing Specialties and Paper Converters Union, Local 388 v. LeBaron, 171 F. 2d 331 ( C. A. 9), December 13, 1948. 42 This finding is made, notwithstanding that the undersigned has found that the picketing conducted by Local 807 pickets was peaceful primary picketing against a primary employer at his "only place of business" that could be located in New York , in an effort to get Schultz to bargain collectively with Local 807, some of whose members had been locked out on or about August 30; all of which activities were and are legal in a primary strike. The fact that it was necessary to conduct such activities on the premises of Schultz ' customers and consignees as the "only place of business " of Schultz available to the strikers, creates a situation where it is impossible to disentangle the legal primary activities from those proscribed by Section 8 (b) (4) (A ), requires the above finding. See Matter of Wine, Liquor J- Distillery Workers Union (Schcn.ley Distillers Corporation ), 78 NLRB 504; Mat- ter of Local 7J1, United Brotherhood of Carpenters and Joiners of America , A. F. of L. ( Watson's Speciality Store), 80 NLRB 533. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 535 and encouragement of employees in the course of their employment within the meaning of Section 8 (b) (4) (A). In the Wadsworth case, supra, the Board held that such section prohibited picketing, whether or not peacefully conducted. It has been found above that the Respondent picketed Schultz' trucks on the premises of his customers and consignees, and displayed signs or banners stating that Local 807 truck drivers had been locked out. In his oral argument before the undersigned, counsel for the Respondent stated, in part : Of course, we hoped that the men [employees of Schultz' customers] wouldn't unload the trucks in front of the picket line. That was the only way we could be effective. Of course, we hoped that. As found hereinabove, that except on one occasion, the customers and con- signees of Schultz refused to accept deliveries, or to deliver pick-ups to Schultz' drivers while the latter's trucks were being picketed ; there was no occasion when the employees of Schultz' customers and consignees refused to handle any goods trucked to or from the employers by Schultz ; nor was there any occasion when the said customers and consignees ordered or requested their employees to handle the goods trucked in or out by Schultz' drivers 4a It is clear from the above and the record that the Respondent picketed Schultz' trucks on the premises of his customers and consignees, for the purpose, among others, of inducing and encouraging the employees of Schultz' customers and consignees to engage in a strike of concerted refusal in the course of their employment to handle goods or perform services for Schultz. Respondent's con- tention (2) is without merit. It is accordingly found that by picketing on the premises of Schultz' custom- ers and consignees in the manner found and described above, the Respondent has violated Section 8 (b) (4) (A) of the Act. IV. THE EFVECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III above, occurring in connection with the operations of the Schultz Refrigerated Service, Inc., set forth in Seetionl above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8 (b) (4) (A) of the Act, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent cease and desist from inducing or encouraging employees to engage in a strike or concerted refusal in the course of their employment to refuse to perform services for their employer where an object thereof is to force or require the customers and consignees or any other person to cease doing business with Schultz Refrigerated Service, Inc.44 41 The fact that the employers made all the decisions in determining to refuse to accept deliveries or delivery pick-ups to the Schultz ' drivers, while Respondent 's pickets were present, thereby making it unnecessary for their employees to take any affirmative action toward the picket line, does not legalize picketing carried on for a proscribed purpose. "This recommended order does not contemplate restraining any future action by the Respondent which may be legal under subsections ( B), (C) and ( D) of Section 8 (b) (4) and the proviso thereof. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD More specifically, it will be recommended that the Respondent, withdraw its support of any picketing by its members of the trucks of Schultz Refrigerated Service, Inc., while said trucks are making deliveries of, and pick-ups from the customers or consigneees of Schultz Refrigerated Service, Inc. on the premises of such customers and consignees, and further, that the Respondent notify its members that the Respondent has taken such action. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Chauffeurs, Local Union No. 807, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By inducing and encouraging employees of the customers and consignees of Schultz Refrigerated Service, Inc., to refuse in the course of their employment to accept delivery of and pick-ups of merchandise from Schultz Refrigerated Service, Inc., with the object of forcing or requiring the customers and con- signees of said Schultz Refrigerated Service, Inc. to cease doing busines with Schultz Refrigerated Service, Inc., the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (0) and (7) of the Act. 4. The Respondent has not engaged in unfair labor practices in violation of Section 8 (b) (1) (A), as alleged in the complaint. . RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Truck Drivers and Chauffeurs, Local Union No. 807 of New York, New York, its agents shall: 1. Cease and desist from : (a) Inducing or encouraging employees of any employer to engage in a strike or concerted refusal in the course of their employment to refuse to perform service for their employer where an object thereof is to force or require the customers or consignees of Schultz Refrigerated Service, Inc., or any other person to cease doing business with Schultz Refrigerated Service, Inc. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Withdraw support and sponsorship of the picketing of the trucks of Schultz Refrigerated Service, Inc., when the latter is making deliveries of and pick-ups from its customers and consignees ; (b) Post at the business office of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Chauf- feurs, Local Union No. 807, A. F. L., copies of the notice attached hereto as an Appendix. Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places' where notices to members are customarily posted. Reasonable steps shall be INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 537 taken by the Respondent to insure that said notice is not altered, defaced. or covered by any other material ; and (c) Notify the Regional Director for the Second Region in writing within ten (10) clays from the receipt of this Intermediate Report what steps the Respond- ent has taken to comply therewith. It is further recommended that, unless the Respondent shall within-ten (10) days from the receipt of this Intermediate Report, notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent has violated Section 8 (b) (1) (A). As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeo- graphed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 10th day of March 1949. PETER F. WARD, Trial Examiner. APPENDIX NOTICE Pursuant to the recommendations. of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that: . WE HAVE WITHDRAWN from the further picketing of the customers and consignees of Schultz Refrigerated Service, Inc. or the picketing of the trucks of said Schultz Refrigerated Service, Inc. on the premises of the customers and consignees of Schultz Refrigerated Service, Inc. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT induce or encourage employees of any employer to engage in a strike or concerted refusal in the course of their employment to refuse to perform services for their employer where an object thereof . is to force or require the customers and consignees of Schultz Refrigerated Service, Inc., or any other person to cease doing business with said Schultz Refriger- ated Service, Inc. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,, WAREHOUSEMEN AND HELP- ERS OF AMERICA, TRUCK DRIVERS AND CHAUFFEURS LocAL UNION No. 807, Labor Organization. By -------------------------------------------- (Title of Officer) Dated---------------------- This notice must remain posted for sixty ( 60) days from the date hereof, and must not be altered , defaced, or covered by any other material.