Local 612, International Brotherhood of Teamsters

30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anticipated from Respondents' past course of conduct. The preventive purposes of the Act will be thwarted unless the Board's order is coextensive with the threat. I shall therefore recommend that a broad cease and desist order issue against Respondents. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local No. 135, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By the above intimidatory assault on Coleman Wiggins and other conduct found above, thereby interfering with, restraining, and coercing employees or appli- cants for employment in the exercise of rights guaranteed by Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Local #612, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America , A. F. of L. and Goodyear Tire & Rubber Company of Alabama . Case No. 10- CC-69. April 5,1955 DECISION AND ORDER On October 25, 1954, Trial Examiner Ralph Winkler issued his In- termediate Report in the above-entitled proceeding, a copy of which is attached, finding that the Respondent had not engaged in any of the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and the General Counsel filed a supporting brief, which was adopted by the Charging Party. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent with the following : 1. The Trial Examiner found that the Respondent did not violate Section 8 (b) (4) (A) or (B) of the Act. We do not agree. From May 21 to June 9, 1954, in support of a strike for recognition as representative of the truckdrivers of Bowman Transportation, Inc., a trucking concern, the Respondent picketed at the main office and ter- minal of Bowman, in Gadsden, Alabama, and at the plants of various 112 NLRB No. S. LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 31 customers of Bowman in Gadsden,' and of one customer in Decatur, Alabama,2 90 miles away. So far as the record shows, such picketing occurred at the customers' plants only at times that Bowman trucks were on the premises. The drivers of these trucks reported to the Bowman terminal several times a day, in the case of city drivers, and several times a week, in the case of over-the-road drivers. The Trial Examiner found that such picketing, although not con- fined to the vicinity of Bowman's trucks on the customers' premises, was privileged under the rule of the Schultz Refrigerated Service, Inc.' and Moore Dry Dock Company' cases. The General Counsel excepted on the ground, among others, that under the Board's decision in the Washington Coca Cola Bottling Works, Inc., case 5 there is no privilege to picket the trucks of a primary employer at neutral premises if, as in the case at bar, the primary employer leas a permanent establishment in the vicinity which may be picketed effectively. We find merit in this exception, and find that, by picketing at the premises of Bowman's customers in Gadsden and Decatur, the Respondent violated Section 8 (b) (4) (A) and (B) of the Act, if for no other reason, because it could picket effectively at the main terminal of Bowman in Gadsden.s 2. However, we do not deem it necessary to consider whether the Respondent violated 8 (b) (4) (A) and (B) by the action of its pickets in patrolling across a spur track of the Louisville and Nash- ville Railroad Company where that track entered the premises of Goodyear Tire & Rubber Company of Alabama. As our order will require the Respondent to cease and desist from further picketing at the latter premises, compliance with that order would preclude any further patrolling by the Respondent's pickets in the vicinity of the spur track at such premises. There is no indication in the record of any likelihood that the employees of the railroad company will be subject to any pressure by Respondent at other locations or by other means to engage in concerted withholding of services for an object proscribed by Section 8 (b) (4) (A) or (B). Accordingly, we find it unnecessary to resolve, and we do not resolve, the question whether i These customers are Goodyear Tire & Rubber Company of Alabama, Goodyear Tile & Rubber Company, Inc, Noojin Supply Company, and Dwight 1\Ianulacturing Company Division of Cone Mills 2 Goodyear Decatur Mills, Inc 3 87 NLRB 502 } 92 NLRB 547 6 107 NLRB 299 6lVashingten Coca Cola Bottling lVw7,s, Inc., supra , Thurston Motor Lines, Inc , 110 NLRB 748; Associated General Contractors of America, Inc, Georgia I3sanch, 110 NLRB 2192 Although Decatur was 90 miles fmom Gadsden, there was no separate dispute af- fecting Bowman's Decatur operations The picketing of the Goodyear Decatur plant was ineiely pact of the Respondent's campaign to secure recognition as the representative of all the Bowman drivers Accordingly, insofar as this campaign involved the Decatur drivers, it could have been effectively implemented by the picketing of Bowman's main terminal in Gadsden 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the railroad company is an "employer" within the meaning of Section 8 (b) (4) (A) or (B), and whether its employees are '*employees" under those provisions.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of Bowman Transportation, Inc., 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 thereof. THE REMEDY Having found that the Respondent has violated Section 8 (b) (4) (A) and (B) of the Act , we shall order it 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. Local #612, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By engaging in picketing with an object of forcing or requiring (a) Goodyear Tire & Rubber Company of Alabama, Inc., Goodyear Tire & Rubber Co., Inc., Goodyear Decatur Mills, Inc., Noojin Supply Company, and Dwight Manufacturing Company Division of Cone Mills, Inc., to cease doing business with Bowman Transportation, Inc., and (b) Bowman Transportation, Inc., to recognize the Respondent as the representative of its employees, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) and (B) 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. 4 The Trial Examiner found that the Respondent instructed the pickets that, in pa- trolling the plants of Bowman's customers, they insist that employees of such customers cross the picket line and perform their normal duties for their employer, and that these instructions were generally followed The record supports this finding except tor the italicized portion thereof we agree with the Tiial Examiner that there was no induce- ment of neutral employees to refrain fiom crossing the picket line and entering their employers' premises. however, as the picket signs stated that Bowman was unlair to Respondent, we find that the picketing was intended to, and did, constitute inducement of the employees of Bowman's customers not to handle Bowman freight at their em- ployers' loading platforms LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 33 ORDERS 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 Respondent, Local #612, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from inducing or encouraging employees of Goodyear Tire & Rubber Company of Alabama, Inc., Goodyear Tire and Rubber Company, Inc., Goodyear Decatur Mills, Inc., Noojin Supply Company, and Dwight Manufacturing Company Division of Cone Mills, Inc., or of any other employer other than Bowman Trans- portation, Inc., to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or other- wise handle or work on any goods, articles, or commodities, or to per- form services for their respective employers where an object thereof is to force or require any employer or person to cease doing business with Bowman Transportation, Inc., or to force or require Bowman Trans- portation, Inc., to recognize the Respondent as the representative of its employees, unless and until the Respondent is certified as such rep- resentative by the National Labor Relations Board. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at the business office of Local #612, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., in Gadsden, Alabama, copies of the notice at- tached hereto narked "Appendix A." 9 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, after being duly signed by official representatives of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and main- tained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members of Respondent are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. The Respondent shall also sign copies of the notice which the Regional Director shall submit for post- ing, the employers willing, at the premises of Bowman Transportation, 'For the reasons stated in his dissent in Pasco-Kennewick, Building and Construction Trades Council, 1]1 NLRB 7255, liember Rodgers would find the Louisville and Nashville Railroad Company to be an emplovei within the protection of Section 8 (b) (4) (A) and (B) of the Act. Accordingly, he would find the Respondent's picketing at the premises of such employer to be violative of 'Section 8 (b) (4) (A) and (B ), and would specifically order the Respondent to cease and desist from such picketing. In the event that this Order is enforced by decree of a United States Court of Al,peals, there shall be substituted for the words, "Pursuant to a Decision and Oider" the words "Pursuant to a Decree of the United States Court of Appeals, Enfoicing an Order." 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., and of the employers enumerated above other than Bowman Transportation, Inc. (b) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER LEEDOM took no part in the consideration of the above Dc- c ision and Order. APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL #612, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, C1IAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. or L., AND TO ALL EMPLOYEES OF BOWMAN TRANS- PORTATION, INC. 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 Goodyear Tire & Rubber Company of Alabama, Inc., Goodyear Tire &-, Rub- ber Company, Inc., Goodyear Decatur Mills, Inc., Noojin Supply Company, and Dwight Manufacturing Company Division of Cone Mills, Inc., or of any other employer (other than Bowman Transportation, Inc.), to engage in a strike or concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or commodities, or to perform any services for their respective em- ployers where an object thereof is to force or require any enn- ployer or person to cease doing business with Bowman Transpor- tation, Inc., or to force or require Bowman Transportation, Inc. to recognize the undersigned Union as the representative of its employees. LOCAL #612, INTERNATIONAL BROTHERHOOD or TEAMSTERS, CIIAUrFEURS, WARET-IOUSE- MEN AND HELPERS ob,, AMERICA, A.F. or L., Labor Organization. Dated---------------- By------------------------------------- (Repiesentative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by Goodyear Tire & Rubber Company of Alabama, herein called Goodyear, the General Counsel for the National Labor Relations Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint on May 28, 1954, against Local #612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., a labor organization LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 35. herein called the Union, alleging that Respondent Union has engaged in conduct violating Section 8 (b) (4) (A) and (B) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and charges were served upon the Respondent; and the Respondent, in turn, filed an answer denying the commission of the unfair labor practices alleged- Pursuant to notice, a hearing was held in Gadsden, Alabama, betore the duly des- ignated Trial Exammei All parties were represented at the hearing and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues The parties were given opportunity to present oral argument at the close of the hearing and they were also granted permission to file briefs and proposed findings of fact and conclusions of law Upon the entire record in the case, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE INTERESTED EMPLOYERS Bowman Transportation, Inc., herein called Bowman, is an Alabama corpora- tion operating as a common carrier by motoi vehicle through various States under certificate of the Interstate Commerce Commission Bowman's annual gross in- come is approximately $2,500,000, of which 98 percent is derived from interstate transportation. Bowman's principal office and main terminal are located in Gads- den, Alabama Goodyear Tire & Rubbet Company of Alabama, herein called Goodyear, is an Alabama corporation engaged in the manufacture of tires and other rubber products in Gadsden, Alabama. The annual value of Goodyear's interstate purchases and sales respectively exceed $5,000,000. Goodyear Decatur Mills, Inc, a subsidiary of Goodyear Tire & Rubber Com- pany, Akron, Ohio, manufactures fabrics for automobile tires in Decatur, Alabama. Noojm Supply Company is a wholesale and retail establishment handling hard- ware and ielated equipment in Gadsden, Alabama The record does not show whether it has any interstate operations or whether its business otherwise affects interstate commerce. Dwight Manufacturing Company Division of Cone Mills, Inc., manufactures textiles in Gadsden, Alabama, the parties have stipulated that it is engaged in com- merce within the meaning of the Act Louisville & Nashville Railroad Company, herein called L & N, is an interstate common carrier by rail, operating under regulation of the Interstate Commerce Commission II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent Union has been striking Bowman since November 1953 in connection with the Union's request that Bowman recognize and bargain with the Union in behalf of Bowman's employees . The Union has not been certified by the Board as the representative of such employees . The Union, in support of its strike, maintained a picket line at Bowman's Gadsden terminal from November 1953 until all such picketing and related activity were enjoined in February 1954 by the Circuit Court of Etowah County, Alabama. On May 17, 1954, the State court modified its injunction to permit picketing and the Union accordingly resumed such activity at Bowman's terminal on or about May 20, 1954 On May 21, 1954, the Union began picketing at the premises of employers for whom Bowman rendered delivery and pickup service, such employers being Good- year, Noojm, and Cone in Gadsden, Alabama, and Goodyear Decatur Mills in Decatur, Alabama. The Union picketed at these other premises only while, never before and never after, Bowman's trucks were at such premises, and it continued this picketing until on or about June 9, 1954, when the United States District Court for the Middle Division of the Northern District of Alabama enjoined such conduct upon petition of the Board. At no time material here has the Union had a labor dispute with any of the aforementioned employers other than Bowman; all picketing by the Union was solely to implement the Union's strike against Bowman. The principal issue in the case is whether the Union violated the Act by picketing at the premises of employers other than Bowman. As the picketing at the Good- year premises in Gadsden is apparently representative of Respondent Union's con- duct at the premises of the other named employers, I shall only discuss such conduct at this location At all times material here, Goodyear's employees at Gadsden have been represented exclusively by, and covered by a collective-bargaining agreement with, Rubber Workers Local 12, CIO. 36)028-56-vol 112 4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Description of premises Bowman's Gadsden premises consist of a terminal, office headquarters, garage, and parking lot, these premises occupy about 7 acres at Tenth Street and Strand Avenue. Strand Avenue is a block away from the Anniston-Gadsden Highway and becomes a dead end in the vicinity of the Bowman premises Bowman employs 65 drivers at its Gadsden terminal and these drivers report at this terminal when they originate and complete their runs, city drivers do this several times daily, and over-the-road drivers similarly report several times weekly. The Goodyear premises in Gadsden are entirely enclosed by a wire fence, one portion of which borders on the north side of Sixth Avenue which is a main thorough- fare. It was on a public sidewalk along the fence on Sixth Avenue that the picketing in question occurred, and Appendix A of this report contains a diagram of the Goodyear premises under consideration. On this diagram is shown Goodyear's only drive-in entrance to the plant; this entrance is used by all motor traffic entering and leaving the premises, including the trucks of Bowman and other carriers, and also by Goodyear employees who drive to work and by some employees on foot. East of the drive-in entrance, and separated from such entrance by a sidewalk leading into the premises, is a guardhouse which also appears on the diagram; employees of Goodyear's tube plant enter the premises through the guardhouse. Approximately 150 feet west of the guardhouse is a railroad entrance, shown on the diagram, which is used exclusively by L & N in switching railroad cars to and from the plant, on these occasions a railroad crewman locks and unlocks the gate at this entrance. The main entrance to the plant is approximately 225 feet west of the railroad entrance; the gate at this main entrance is open only at shift changes to permit employees to enter and leave the premises. The drive-in entrance leads to Goodyear's loading platforms-also shown on the diagram-1 of which is east and 2 are west of the drive-in gate. The platform east of the drive-in entrance is 300 feet from the Sixth Avenue fence; the platform between the drive-in entrance and the main gate and the platform west of the main entrance are approximately 225 feet from the Sixth Avenue fence. There are no building obstructions between the fence and the mentioned loading platforms, and trucks at these platforms are visible from the fence. B. Picketing at Goodyear As stated earlier, the Union picketed at the Goodyear premises from May 21, 1954, until the district court enjoined such activity in June 1954. There was usually 1 picket and never more than 2 pickets at Goodyear, and they engaged in such activity only at times that Bowman's trucks had entered the drive-in gate and were at the aforementioned loading docks. The pickets patrolled at such times on the sidewalk along the Sixth Avenue fence, generally walking from the eastern side of the drive-in entrance and crossing the L & N tracks at the railroad entrance to the eastern side of the main entrance; they were constantly on the move and, while so engaged from May 21 until May 25, they bore picket signs stating "Bowman Transportation Co. unfair to Teamsters L. U 612, AFL"; from May 25 until such picketing was enjoined the picket signs stated "Bowman Transportation Co. only unfair to Teamsters L. U. 612, AFL " From the very outset of picketing at Goodyear, the Union instructed its pickets to insist that all employees of employers, including all trucking concerns other than Bowman, should enter the Goodyear premises and perform their duties at Goodyear. On the first morning of such picketing some drivers of other carriers asked a picket if they should enter, to which the picket replied "that is up to you," whereupon they did not enter; and also that first morning one of the L & N train crews did not take their train through the railroad gate while pickets were present. The Union, upon hearing of these incidents, immediately renewed its instructions that pickets insist that all employees, other than Bowman's, were to enter the Goodyear premises. Joseph Long is superintendent of Goodyear's service division, including responsibility for maintaining records of all deliveries and shipments. Long testified that since I p. m. on the first day of picketing at Goodyear, no trucking and L & N employees have refused or otherwise failed to perform their duties at Goodyear, and the record turther shows that no Goodyear employees have at any time material here refused or otherwise failed to perform their duties-all despite the presence of pickets at times that Bowman trucks were on the premises. The Union similarly picketed at the premises of Goodyear Decatur Mills in Decatur, Alabama, while Bowman trucks were making deliveries or pickups at such premises. Bowman does not have a terminal or other permanent facilities in LOCAL 612 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS 37 Decatur, which according to stipulation of the parties is approximately 90 miles from Gadsden. C. Resolution of the issues It is well established , as all parties apparently agree here, that a union may, in support of a lawful labor dispute , picket the struck employer at a situs of the dispute. Within the terminology in this field , picketing at a situs of a dispute is called primary and is not deemed to be banned by the Act , whereas picketing of other employers' employees beyond such situs is called secondary and is prohibited .' So-called common situs situations exist where a situs of a labor dispute with one employer, called the primary employer, overlaps or coincides with the premises of a neutral or so-called secondary employer. Where premises of a neutral employer thus harbor a situs of a primary dispute, picketing activity is not unlawful because of in- ,cidental effects on a neutral employer and his employees , rather, common situs picket- ing is unlawful under established doctrine only where it exceeds the criteria set forth in Moore Dry Dock Company, 92 NLRB 547, 549, which principles have been specifically approved by the Second Circuit Court of Appeals in N. L. R. B. v. Service Trade Chauffeurs, Salesmen c1 Helpers Local 145, etc., 191 F. 2d 65, and by the Seventh Circuit Court of Appeals in N. L. R. B. v. Chauffeurs, Teamsters, Warehousemen & Helpers Local Union No. 135, IBTCWHA, AFL, 212 F. 2d 216, 219 2 The conditions laid down in the Moore Dry Dock case which common situs picketing must meet in order to be considered as permissible primary ` conduct are as follows: (a) The picketing is strictly limited to times when the sites of dispute is located on the secondary employer's premises ; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs, (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. Claiming that the situs of Respondent 's dispute with Bowman is solely at Bowman's terminal in Gadsden, the General Counsel urges that picketing of Bowman's trucks at the premises of other employers was necessarily secondary and not common situs action . In this connection the General Counsel cites the Board's recent Washington Coca Cola case 3 as affirming Board decisions in the Schultz 4 and Moore Dry Dock cases, which, in the General Counsel 's view, stand for the proposition that "picketing of the primary employer's trucks or ships (here the trucks of Bowman ) at or in the vicinity of the premises of the secondary em- ployer is permissible at all only if the primary employer has no regular place of his own in the area where he can be picketed without the direct involvement of employees of other employers (General Counsel 's Brief, p. 6 ). The Respondent rejects the interpretation which the General Counsel would place on these Board decisions , instead, the Respondent cites these same cases as supporting the propriety of Respondent 's conduct under discussion here. In the Schultz case (decided December 9, 1949 ), Local 807, located in New York City, was engaged in a labor dispute with a trucking concern, Schultz. Schultz had a dispatchers' office in New York City and a terminal in New Jersey; it had no terminal in New York City. Local 807 picketed Schultz' trucks in New York City while such trucks were on a public street adjacent to the premises of a neutral employer for whom Schultz was performing delivery service at the time. Holding that the trucks constituted a situs of the Union 's labor dispute with Schultz and that the picketing of Shultz' trucks at the premises of the neutral employees was primary and therefore protected , the Board stated, inter alia (87 NLRB 502, p. 506) : In this case the primary employer's only geographical premises are a ter- minal in New Jersey, removed from all contact with its customers and con- signees, 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 I Al L R B v Denver Rldq C Construction Trades Council , et at , 341 U S 675, 685- 688 , International Rice 3lillvuq Co , Inc, et at v N L R B , 341 U. S 665, 671 , N L R B v Service Trade Chauffeurs, Salesmen & Helpers Local 11115, etc , 191 F 2d 65 , 67 (C A. 2) ; Columbia -Southern Chemical Coiporation, 110 NLRB 206 2 See also, Stover Steel Service, 108 NLRB 1575, Painting and Decorating Contractors of America, etc., 109 NLRB 1163. 3 Washington Coca Cola Bottling Works, Inc , 107 NLRB 299. 4 Schultz Refrigerated Service, Inc., 87 NLRB '502 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondent to establish a picket line 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. The Sterling case,5 decided June 10, 1950, involved a dispute between a New York City local union (Local 807) and a Massachusetts trucking concern, Sterling, Sterling performed delivery services, but had no terminal, in New York. Local 807 picketed the entrances at which Sterling trucks entered the premises of a neutral employer to whom Sterling made deliveries in New York City Affirming, by distinguishing, its Schultz decision and stating that picketing at the entrance-way of the neutral employer would otherwise have been proper, the Board nevertheless found that Local 807 had engaged in unlawful conduct because Local 807 had picketed at the neutral employer's premises when the Sterling trucks were not at such premises The aforementioned Moore Dry Dock Company case (92 NLRB 547, decided December 8, 1950) involved a dispute between a union and a foreign shipping corporation, Samsoc, as to the crew of one of Samsoc's ships. This ship was tied up at a California dock of a neutral shipyard, Samsoc not having its own dock in the United States, and employees of the neutral shipyard were converting the ship at the same time that the ship's crew was engaged aboard ship in preparing for departure. The Board held that the struck ship was a sites of the dispute and that, subject to the aforementioned conditions for lawful common situs picketing which the Board spelled out in this case, the union was no less permitted to picket the struck ship at a neutral employer's premises than at separate premises of the ship's owner, as long as the ship's crew was engaged aboard the ship in normal duties at the time of such picketing Howland Dry Goods Company, 85 NLRB 103 (August 31, 1949), involved a labor dispute between a labor organization and a motor carrier concern. The carrier had a garage and place of business in Bridgeport, Connecticut, and it performed pickup and delivery service for various department stores in Bridgeport In con- nection with its dispute with the carrier, the union picketed the carrier's premises and also picketed at the Bridgeport premises of the department stores who were neutrals to the dispute The Board found a violation of Section 8 (b) (4) against the union, and it brought enforcement proceedings of its Order before the Second Circuit Court of Appeals. The Board had meanwhile issued its Moore Dry Dock decision and the court in Sei vice Trade declared that the aforestated common situs principles evolved by the Board in Moore Dry Dock were a "sound interpretation of the Act" in "roving situs" situations. The court further stated (191 F. 2d 65, 67-68). The trouble lies in determining what is "incidental" and "primary" in a case like this where the primary employer's business, travelling about on wheels, rolls up to the secondary employer's door or onto his premises To hold that, in such circumstances, the union may not there picket the primary employer in any way because the secondary employer might thereby be injured would be virtually to deprive the union of a powerful weapon which Congress meant to preserve. Because the Board decision in Seivice Trade antedated the Board's Moore Dry Dock decision, the court remanded certain portions of Service Trade for considera- tion by the Board in the light of the Moore Dry Dock principles. The Board thereupon found that the union in Service Trade did not satisfy the Moore Dry Dock criteria and the court thereafter enforced the Board's supplemental decision in the matter (199 F. 2d 709, enfg. 97 NLRB 123). We reach, now, the Washington Coca Cola case (107 NLRB 299, decided De- cember 10, 1953) which involved a dispute between Teamsters Local No 67 and Washington Coca Cola Bottling Works, Inc. Coca-Cola operates a manufacturing and bottling plant in Washington, D. C , and it has driver-salesmen who sell and de- liver the soft drink to Washington retaileis and who also service soda dispensing machines which are located on the premises of these ietailers. The Board's decision 5 Sterling Beverages, lac, 90 NLRB 401. LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 39 in Coca Cola shows, among other things, that Local No. 67 picketed at the premises of such retailers even while Coca-Cola trucks and their drivers were not at the retail premises; that large numbers of pickets engaged in such activity at the same time and at the same stores; and that during the course of such conduct some pickets clearly indicated to drivers of other supplier-concerns of the retailers that the drivers of these other suppliers should not cross the picket line at the retailers' premises Local No. 67 advanced, as a defense to certain portions of the allegedly unlawful conduct in Washington Coca Cola, the line of authority based upon the Schultz and Moore Dry Dock cases The Board held that these cases were not apposite to the Coca Cola situation, and in that connection the Board stated, in part, as follows (107 NLRB 299). Unlike the instant proceeding, the Schultz case involved picketing of trucks be- longing to a company engaged in the transportation business which had no permanent establishment where the trucks could be picketed within the State in which the labor dispute arose. Similarly in the Moore Drydock case the owners of the ship, which was the situs of the picketing union's dispute with the shipowners, had no permanent berth where the union could publicize the facts concerning its dispute with the shipowners. Here, the Coca-Cola plant, which the drivers enter and leave at least 4 times each day, is located in downtown Washington and was picketed by the Respondent Union from the first day of the strike The Board declared in the Coca Cola case that it had "no difficulty in concluding on the entire record that the object of [Local 67's] picketing activity was to sever the business relationship between Coca-Cola and its customers and between those custom- ers and their suppliers" (ibid ). The Order thereupon issued by the Board is now pending enforcement and review proceedings befoie the Circuit Court of Appeals in the District of Columbia The General Counsel urges here that all picketing at the premises of employers other than Bowman is unlawful under the Washington Coca Cola decision, because Respondent Union had a place to picket and indeed did picket at Bowman's terminal in Gadsden. The Coca Cola case, standing alone, might be persuasive authority for that position in the present case, but that decision must be read together with the Schultz, Sterling Beverage, Service Trades, and Mooie Dry Dock decisions, par- ticularly as the Board made perfectly clear in its Coca Cola decision that it was not reversing or even passing upon those earlier authorities Under the aforementioned decisions, and betore Washington Coca Cola was issued, I would not have considered a striking union to be barred from picketing the trucks of a struck primary employer at the premises of a neutral employer merely because the struck employer has a permanent establishment in the same State as the neutral employer. True, in the Schultz, Sterling, and Moore Dry Dock cases, the primary employer did not have such establishments in the same States where the neutral employers were located, 6 but in Service Trades the primary employer did have a permanent establishment in Bridgeport, and the court in that case nevertheless declared, as set forth above, that within the limitations explicated by the Board in Mooie Dry Dock, Congress meant to preserve the right of a union to picket a primary employer at the premises of a neutral employer where the "primary employer's business, travelling about on wheels, rolls up to the secondary employer's door or onto his premises." The doctrine of the Schultz, Moore Dry Dock, and Service Trade cases is neces- sarily unaffected by the Washington Coca Cola case because the Board itself stated in its Coca Cola decision that such cases were inapposite in that proceeding? Both lines of authority must be reconciled, therefore; and in order to determine whether the Washington Coca Cola situs limitation applies to the present case it accordingly becomes necessary to ascertain what basic distinction exists between Coca Cola and the principle of Service Trade and the other Schultz type of cases. It is recalled that Schultz, Sterling, Moore Dry Dock, and Service Trade all involved primary employers who, like Bowman in the present case, were engaged in the transportation industry as such; indeed, the roving nature of that business was the critical decisional factor in those cases. In Washington Coca Cola, on the other hand, the General Counsel had urged before the Board that "Coca-Cola is not engaged in the trans- portation business, so that its trucks, which are only auxiliary to its manufacturing "This was not completely so in Schultz, for the primary employer did have a dis- liatcher's office in New Sri k City T See, in this connection , Getreu v. Track Drivers ct Helpers Union (National Trucking Company ), July 8, 1954 (D C , No Ga ), 34 LRRli 2621, 262. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations, are not the `necessary or main instruments' of its operations," 8 and the General Counsel thereupon contended in Washington Coca Cola that the Schultz, Service Trade line of cases, involving the transportation industry, were inapplicable for such industry reason, among others. The Board apparently accepted this in- dustry distinction in deciding the Washington Coca Cola case, as appears from the excerpt from that decision set forth above. Whatever reasons there may be in the Washington Coca Cola case for distinguishing between the transportation industry and a business consisting of both manufacturing and transportation, I am satisfied that by not overruling the Schultz, Service Trade cases the Board, in effect, accord- ingly made the Coca Cola limitation inapplicable to the transportation industry. I therefore conclude in accordance with the Schultz, Moore Dry Dock, Sterling, and Service Trades cases that where a struck primary employer is engaged in the trans- portation industry, and providing that a union otherwise complies with the Moore Dry Dock criteria, Section 8 (b) (4) (A) of the Act does not prohibit such union from picketing the trucks of the primary employer at the premises of a neutral em- ployer, even though the primary employer has a separate establishment in the State or within the same city where the neutral or secondary employer is located. I have thus decided that Bowman's trucks, while engaged with Bowman employees in Bowman's normal operations at Goodyear, constitute a situs of Respondent Union's dispute with Bowman and that Respondent could, accordingly, lawfully picket these trucks at the Goodyear premises. There remains to be decided, therefore, whether Respondent Union's picketing at Goodyear otherwise satisfied the Moore Dry Dock criteria set forth above. Impinging on this question is the portion of the complaint which alleges, in effect, that Respondent also violated Section 8 (b) (4) (A) of the Act because in the course of their picketing at the Goodyear premises, the Union's pickets also patrolled the railroad entrance at the Sixth Avenue fence which was used by L & N trainmen. One switching operation was interrupted as a consequence of the picketing here in question ; this occurred during the first morn- ing's picketing and was immediately and effectively remedied by Union. Apart from other considerations, however, it would seem under Board-established principles that L & N is not an employer within the meaning of the Act and that any alleged impact on its operations with Goodyear is beyond the scope of the Act. In the International Rice Milling case, 84 NLRB 360, the Board held that, by reason of Section 2 (2) and (3) of the Act, Section 8 (b) (4) (A) of the Act does not apply to inducement or encouragement of railroad employees to engage in conduct other- wise unlawful under such Section. The Fifth Circuit Court of Appeals reversed the Board on that issue (183 F. 2d 21, 24-26); and the Board filed a petition for certiorari in that same proceeding, but not as to that issue (314 U. S. 665). There- after, in Sprys Electric Company, 104 NLRB 1128, the Board reconsidered the analogous exclusion of Government agencies and instrumentalities and their em- ployees under Section 2 (2) and (3) of the Act and expressly declined to follow the Fifth Circuit Court's views on the matter. Even though the instant case is within geographical jurisdiction of the Fifth Circuit Court, I am required to follow the Board's holdings in the International Rice Milling and Sprys Electric cases. The fact that the picketing crossed the L & N tracks at the railroad gate is therefore ir- relevant in this case. The General Counsel finally urges that, even assuming the Union's right to picket Bowman's trucks at Goodyear, the Union was prohibited from picketing outside the Sixth Avenue fence until it first requested and was denied permission by Goodyear to picket Bowman's trucks inside the Goodyear premises The satisfaction of such con- dition, according to the General Counsel, is prescribed by the Moore Dry Dock requirement that "picketing is limited to places reasonably close to the location of the situs" (92 NLRB 547, p. 549). In this connection the General Counsel cites the Richfield Oil case 9 which in turn refers to the Moore Dry Dock case where, in its discussion of the facts, the Board mentioned that such permission had been requested and denied (92 NLRB 547, p. 550). Granting the relevancy of such circumstance, it is but one factor to be evaluated together with all other circumstances in a case; for I do not interpret either the Moore Dry Dock or Richfield Oil cases as turning on that factor alone. The facts, in review, are that the Union picketed at Goodyear only while Bowman's trucks and employees were engaged in their normal operations at the Goodyear 6 Brief in support of the Genera] Counsel's exceptions (November 23, 1953), p. 17 ; Brief on behalf of the General Counsel (August 21, 1953), p ]8 D Richfield Oil Corporation, 95 NLRB 1191, 1193 See also, Columbsa-Southern Chem,- cal Corporation, 110 NLRB 206. LOCAL 612, INTERNATIONAL BROTHERHOOD OF TEAMSTERS 41 premises ; that there was no mass picketing, that the Union instructed its pickets that all employees of employers other than Bowman were to enter the Goodyear premises and to perform their duties at Goodyear despite the presence of pickets; that, upon hearing of noncompliance with such instructions during the first morning's picketing, the Union immediately and effectively renewed its instructions that pickets were to insist that all employees of neutral employers enter the premises, and that, apart from isolated and unauthorized events on the first morning's picketing, 10 there has been no disruption of Goodyear's operations. Thus the Union clearly identified Bowman as the sole object of its picketing. In the circumstances presented, I conclude that the Union has in all respects satisfied the Moore Dry Dock objective of limiting the impact of primary action on secondary employees at a common situs insofar as is reasonably consistent with a union's right to picket a primary em- ployer. 11 I would, moreover, reach a similar conclusion upon the instant facts even were L & N to be deemed an employer within the meaning of the Act. I conclude, therefore, that Respondent Union has not violated Section 8 (b) (4) (A) and (B) of the Act, and I shall accordingly recommend that the complaint be dismissed in its entirety. [Recommendations omitted from publication.] APPENDIX A Railroad platform -*L [*LP* x-X-X-X-X- Sixth Ave. -X-X- IIeT Main Entrance N A L, P -- Loading platform Railroad Entrance l Guard house .. x-X-X-k Drive-in Entrance 10 See Jay-K Independent Lumber Corp., 108 NLRB 1323 n By insisting that employees of secondary employers enter the plant, the Union did even more than is normally required by the obligation to indicate that its disagreement was only with Borman Cf Stover Steel Service, 108 NLRB 1575 Massachusetts Mohair Plush Company and Textile Workers Union of America, CIO, Petitioner . Case No.1-RC-381k9. April 5,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Thomas E. McDonald,. 112 NLRB No. 5.