General Drivers, Warehousemen and Helpers

GENERAL DRIVERS, ETC. 275 special experience and proven effectiveness in representing those em- ployees. The concept of a traditional bargaining representative, it seems apparent, conveys the idea of a history of representation of such employees. It follows, therefore, that a newly formed labor organization can hardly be termed to be a "traditional" bargaining representative. Under these circumstances, we find that the newly organized Die and Tool Makers does not now constitute a union which traditionally represents tool and die employees within the meaning of the requirements set forth in the American Potash decision. We shall therefore dismiss the petition by which the Die and Tool Makers seeks to sever tool and die employees from the larger production and maintenance unit which has included these employees since 1937. We shall, however, consider this labor organization as an intervenor in Case No. 9-RC-2189 for all purposes. The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Day- ton, Kentucky, manufacturing plant, including factory clerical em- ployees and setup men, but excluding all employees engaged in metal polishing and buffing, plating, and the processes related thereto, time- study employees, office clerical employees, guards, professional em- ployees, and all other supervisors as defined in the Act. [The Board dismissed the petition in Case No. 9-RC-2145.] [Text of Direction of Election omitted from publication.] MEMBER PETERSON took no part in the consideration of the above Decision, Order, and Direction of Election. GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 968, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL, AND M. W. MILLER, TRUSTEE, GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 968 and OTIS MASSEY COMPANY, LTD. Case No. 39-CC-11. July 22, 1954 Decision and Order Upon charges duly filed on January 18, 19, and February 2, 1954, by Otis Massey Company, Ltd., the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for the Sixteenth Region, issued a complaint dated February 19, 1954, against General Drivers, Warehousemen and 109 NLRB No 61. 334811-55-vol 109-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helpers, Local 968, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, and M. W. Mil- ler, Trustee, General Drivers, Warehousemen and Helpers, Local 968, hereinafter referred to as Union and Respondent Miller, respectively, alleging that they have violated Section 8 (b) (4) (A) of the Na- tional Labor Relations Act, as amended, by inducing and encouraging employees of other employers to engage in strikes or concerted refusals in the course of their employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, an object of which being to force such other employers to cease doing business with Otis Mas- sey. Copies of the complaint and notice of hearing were duly served upon the Respondents on or about February 19, 1954. On March 4, 1954, the Respondents filed their answers to the complaint. Thereafter, all parties entered into a stipulation and supplemental stipulation which set forth an agreed statement of facts. The stipula- tions provided that the parties thereby waive their rights to a hearing and to the taking of testimony before a Trial Examiner of the Board. The stipulations further provided that, upon such stipulations, the agreed statement of facts as therein set forth, the charge and the amended charges, the complaint, answers, notice of hearing, and the transcript of record in the proceeding for injunctive relief under Sec- tion 10 (1) of the Act before the United States District Court for the Southern District of Texas, Houston Division, bearing Case No. 8006, the Board may make findings of fact, conclusions of law, and may is- sue a decision and order as if the same facts had been adduced in open hearing before a duly authorized Trial Examiner of the Board. The aforesaid stipulations are hereby approved and accepted and made a part of the record in this case. In accordance with Section 102.45 of the National Labor Relations Board's Rules and Regula- tions, this proceeding is duly transferred to, and continued before, the Board. Upon the basis of the aforesaid stipulations, transcript of record, and the entire record in this case, the Board, having duly considered the briefs filed by the parties, makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Otis Massey Company, Ltd., is engaged in Houston, Texas, in the distribution and installation of insulation and other materials. Dur- ing the past year it purchased materials valued in excess of $500,000, approximately 75 percent of which was received from points outside the State of Texas. During the same period, the Employer sold prod- GENERAL DRIVERS, ETC. 277 ucts valued in excess of $1,000,000, approximately 5 percent of which was shipped to points outside the State of Texas. We find that Otis Massey Company, Ltd., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE RESPONDENT LABOR ORGANIZATION General Drivers, Warehousemen and Helpers, Local 968, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the mean- ing of Section 2 (5) of the Act. III. UNFAIR LABOR PRACTICES Otis Massey operates a warehouse in Houston, Texas, where it em- ploys approximately four truckdrivers and warehousemen for whom Local 968 is the certified collective-bargaining representative. It also engages in the installation of insulation and other building materials, and for this purpose employs various groups of craftsmen including asbestos workers, carpenters, and flooring men. These craftsmen are employed exclusively at construction job sites where Otis Massey is engaged in installation as a subcontractor and are represented in col- lective bargaining by their particular craft unions. None of these men are represented by the Respondent Union. In January 1954, a dispute arose between Otis Massey and the Union as to the terms of a collective-bargaining contract covering the truck- drivers and warehousemen. The parties have no dispute concerning the craftsmen employed by the Company at the construction projects. In furtherance of the dispute, the Union, on January 13, 1954, called a strike of the truckdrivers and warehousemen and began pick- eting Otis Massey's warehouse. Simultaneously the Union com- menced picketing the various construction projects, also located in Houston, Texas, where Otis Massey was engaged in making installa- tion as a subcontractor. This picketing was carried on from time to time from the above date to on or about February 11, 1954, at the construction sites of St. Luke's Hospital, University of Texas Dental Clinic, and Battlestein's Service Center. Otis Massey is a subcon- tractor of the mechanical subcontractor, C. Wallace Plumbing Com- pany, at the hospital and the dental clinic and of general contractor, O'Rourke Construction Company, at the service center. The general contractors at the hospital and the dental clinic are Tellepsen Con- struction Company and Manhattan Construction Company, respec- tively. The Union has no labor dispute with any of the above em- ployers other than Otis Massey. The pickets at the construction projects carried signs which read: General Drivers Local 968, AFL On Strike Against Otis Massey. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about January 25, the Union requested permission of the gen- eral contractors at the hospital and dental clinic to enter upon the premises and picket directly adjacent to the place where the Otis Massey employees were working. Such permission was refused on the ground that the property was not owned by the general contractors .and that therefore they were not authorized to grant it. Except on one or two occasions, no truckdrivers or warehousemen of Otis Massey were on or near the premises when the construction projects were picketed. The picketing of the construction projects continued sporadically until voluntarily terminated during the course of the Section 10 (1) hearing before the district court, pending the decision, of said court. 1. The essential allegation of the complaint is that by picketing the above-named construction projects, the Respondents induced em- ployees of the neutral employers on the projects to cease work as a means of compelling such neutral employers to discontinue their busi- ness with Otis Massey, the primary Employer. The Board, with court approval, has held that Section 8 (b) (4) (A) forbids secondary,' but not primary,' activity at the common premises of neutral employers and an employer with which the union is engaged in a labor dispute. The problem in all of these cases, how- ever, has been the difficult one of distinguishing primary from sec- ondary conduct. In the instant case the Union contends that its con- duct in picketing the construction projects was primary within the meaning of the criteria set forth in the Moore Drydock case.3 The Union points out that its picket sign clearly identified Otis Massey as the primary employer and that its pickets were reasonably close to the work locations of Otis Massey employees. While these facts would otherwise be most important in determining the legality of the Union's conduct,4 the record in this case reveals, as indicated above, that the employees solely involved in the dispute between the Union and Otis Massey were employed not at the construction projects but at the Otis Massey warehouse. The Moore Drydock and other common situs cases make it clear that picketing affecting in any manner the employees of such secondary employers can be considered primary only where, as the first condition precedent, the secondary employer "is harboring the situs of a dispute between a union and a primary employer." 5 1 See N. L. R . R. v. Denver Building and Construction Trades Council, et al, 341 U. S. 675; IBEW, Local 501, at al., v. N . L. R. B., 341 U . S. 694; arauman Company, 87 NLRB 755, 759-760; Osterank Construction Company, 82 NLRB 228 , 229; Montgomery Fair Com- pany, 82 NLRB 211; Roane-Anderson Company, 82 NLRB 696; Los Angeles Building and Construction Trades Council, AFL, 105 NLRB 868 ; Aeousts Engineering Company, 97 NLRB 574, 575; and Richfield Oil Corporation, 95 NLRB 1191. 2 See Pure Oil Company, 84 NLRB 315; Ryan Construction Corporation, 85 NLRB 417; Moore Drydock Co , 92 NLRB 547. 3 Supra, footnote 2. 4 Compare, Stover Steel Service, 108 NLRB 1575. 5 Moore Drydock, supra, at page 549. GENERAL DRIVERS, ETC. 279 This is perhaps the most fundamental requirement in achieving a fair balance between the right of a union to publicize its labor dispute and the right of neutral employers to be free from controversies not their own. It is clear in the instant case that the sites of the Union's dis- pute with Otis Massey was the Otis Massey warehouse, and that the Union could adequately publicize that dispute by limiting its picket- ing activities to that location.6 Accordingly, and upon consideration of all other relevant facts in the case, we are convinced and so find that the picketing of the construction projects was conducted, at least in part, to force secondary employers, C. Wallace Plumbing Company, O'Rourke Construction Company, Tellepsen Construction Company, and Manhattan Construction Company to cease doing business with Otis Massey, by inducing and encouraging the employees of said Em- ployers to engage in a strike, in violation of Section 8 (b) (4) (A) of the Act. 2. Respondent Miller argues that.. the complaint against him as Trustee of Local 968 should be dismissed on the ground that he had no knowledge of the illegal picketing. According to the constitution of the International Brotherhood, Miller, as Trustee, has full charge of the affairs of the Local Union and of the subordinate officials of such Union. In view of this direct control over the policies and operations of Local 968, we conclude and so find that Miller, as Trustee, shares the responsibility with the Local for the course of conduct found violative of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above,. occurring in connection with the operations of Otis Massey set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to burden and obstruct commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have violated Section 8 (b) (4) (A) of the Act, we shall order them to cease and desist therefrom and take certain affirmative action which is necessary to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. General Drivers, Warehousemen and Helpers, Local 968, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and 6 See,Waslaington Coca-Cola Bottling Works, Inc, 107 NLRB 299 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By engaging in picketing with an object thereof to force or require C. Wallace Plumbing Company, O'Rourke Construction Com- pany, Tellepsen Construction Company, and Manhattan Construction Company to cease doing business with Otis Massey Company, Ltd., the' Respondents have 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 (6) and (7) of the Act. 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 Respondents, General Drivers, Warehousemen and Helpers, Local '968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, and M. W. Miller, Trustee, General Drivers, Warehousemen and Helpers, Local 968, and their officers, agents, successors, and assigns; shall : 1. Cease and desist from : (a) Inducing or encouraging employees of C. Wallace Plumbing Company, O'Rourke Construction Company, Tellepsen Construction Company, and Manhattan Construction Company or of any other employer to engage in a strike or concerted refusal in the course of their employment to perform services for their employers where in object thereof is to force or require said employees to cease doing business with Otis Massey Company, Ltd. 2 Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the business offices of Local 968, International Brother- hood of Teamsters, in Houston, Texas, copies of the notice attached hereto as "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, after being duly signed by official representatives of the Respondents shall be posted by the Respondents immediately upon receipt thereof, and main- tained by them for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members of Local 968 are customarily posted. Reasonable steps shall be taken In the event that this Order is enforced by a Decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." GENERAL DRIVERS, ETC. 281 by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. The Respondents shall also sign copies of the notice which the Regional Director shall submit for posting at the Houston, Texas, premises of the Employers listed in "Appendix B." (b) Notify the Regional Director for the Sixteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. MEMBER PETERSON took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL MEMBERS OF LOCAL 968, GENERAL DRIVERS, WAREHOUSE- MEN AND HELPERS, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND TO ALL EMPLOYEES OF OTIS MASSEY COMPANY, LTD. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT induce or encourage the employees of C. Wallace Plumbing Company, O'Rourke Construction Company, Tellep- sen Construction Company, Manhattan Construction Company, or any other employer, to engage in a strike or concerted refusal in the course of their employment to perform any services for their respective employer, where an object thereof is to force or require said Employers to cease doing business with Otis Massey Company, Ltd. GENERAL DRIVERS , WAREHOUSEMEN AND HELPERS, LOCAL 968, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, Dated-------------- By---------------------------------------- (Representative ) ( Title) M. W. MILLER, TRUSTEE , GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL 968, Dated-------------- By---------------------------------------- (Trustee) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix B C. Wallace Plumbing Company O'Rourke Construction Company Tellepsen Construction Company Manhattan Construction Company IDEAL ROLLER & MANUFACTURING Co. and UNITED SERVICE EMPLOYEES UNION, LOCAL 329, A. F. L. Case No. 13-CA-1488. July 22, 1954 Decision and Order On March 17, 1954, Trial Examiner James A. Corcoran issued his Intermediate Report in the above-entitled proceeding, sustaining certain portions of the complaint alleging violations of Section 8 (a) (5) and (1) by the Respondent, Ideal Roller & Manufacturing Co., and dismissing other portions of the complaint alleging such viola- tions. He recommended, as to the unfair labor practices found, that the Respondent cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as hereafter noted." We agree with the Trial Examiner's finding that the Respondent did not bargain in good faith with the Union and thereby violated Section 8 (a) (5) of the Act. Unlike the Trial Examiner, however, in reaching this conclusion we do not rely upon the fact that on July 14, 1953, the Respondent, at the request of the United States district court, consented to the extension of a temporary restraining order prohibiting bargaining between the Respondent and the Union. The record otherwise contains ample evidence of the Respondent's deter- mination not to bargain collectively with the Union. Accordingly, i The Intermediate Report contains certain minor misstatements or inadvertencies, none of which affects the Trial Examiner 's ultimate conclusions . Accordingly, we note the fol- lowing corrections : The decertification petition filed herein by certain of the Respondent's employees was dismissed by the Regional Director on May 28, 1953, not on May 29 as stated at one point in the Intermediate Report. The Union's telegram sent subsequent to the Board 's approval of the Regional Director's aforesaid dismissal of the decertification petition and requesting the Respondent for a bargaining conference was dated June 25, 1953 , not June 26. 109 NLRB No. 47.