General Truck Drivers, Local 85

GENERAL 1 R(ICK D)RIVERS, L(CXAL 85 General Truck Drivers, Warehousemen, Helpers & Automotive Employees, Local 85. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and Graybar Electric Company, Inc. Case 20 C(' 2029 July 24. 1979 DECISION AND ORDER BY MEMBERS PNEI.i() MURPHtY. AND) TRI ESI)A I On November 7. 1978. Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, Respondent. the General Counsel, and the Charging Party filed exceptions with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge only to the extent consistent herewith. As set forth more fully in the Administrative Law Judge's Decision, Transportation Specialists, hereaf- ter TS, the primary employer, was under contract with a neutral employer, Graybar Electric Company. Inc.. hereafter Graybar, to provide transportation ser- vices for Graybar. Another neutral employer, REL Trucking Company, hereafter REL, however, had contracted with TS to perform the transportation ser- vices which TS was to have performed under its con- tract with Graybar. The contract between REL and TS was secretive and apparently Graybar and mem- bers of the public were under the impression that the employees of REL were employees of TS. Neither Graybar nor Respondent was aware of the existence of REL. On the mornings of March 2 and 3, 1978, Respondent's pickets followed trucks driven by em- ployees of REL from TS's terminal. When the Gray- bar trucks arrived at Graybar's warehouse. Respon- dent established an unlawful secondary picket line. We agree with the Administrative Law Judge's finding that Respondent violated Section 8(b)(4)(ii)(B) of the Act by picketing and by threaten- ing to continue picketing Graybar with an object of I Respondent has excepted to certain credibiliht findings made by the Ad- ministratise Law Judge. It is the Board's established polio not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant e idence convinces us that the resolutions are Incorrect. Standard Drn Hall Producrts. Inc, 91 NLRB 544 (1950). enfd. 188 F 2d 362 (3d Cir. 1951) We have careful b examined the record and find no basis for reversing his findings forcing or requiring it to cease doing business with TS. We disagree. however, with the Administrative Law Judge's finding that Respondent did not violate Section 8(b)(4)(ii)(B) of the Act by picketing and threatening to continue picketing Graybar with the further object of causing TS to cease doing business with REL. As pointed out above. because of the se- cretive nature of the agreement between S and REL. the presence of REL's employees at the picketed site was unknown to Respondent. The Ad- ministrative Law Judge found that, because Respon- dent did not and could not have known of REL's existence, an object of its picketing could not have been to force REL to cease doing business with TS and that REL's loss of the Grabar subhauling and its resulting cessation of business with TS would be only "incidental" to Respondent's object in picketing Graybar. We disagree. In National Association of Broadcast Employehees and Techicians. A FL CIO, Lo- cal 31 (CBS, Inc.), 237 NLRB 1370 (1978), we found that a picketing union's good-faith mistaken belief that a primary employer was present at a picketed site was not a defense to an allegation of a violation of Section 8(b)(4)(ii)(B) of the Act. Similarly. Respon- dent's lack of knowledge that REL's employees were present at the picketed site is not a defense to the allegation that such picketing violated Section 8(b)(4)(ii)(B)? It is clear that if Respondent's picket- ing had been successful, a natural consequence thereof would have been a cessation of business be- tween TS and REL; we do not regard such a cessa- tion of business to be incidental) Accordingly, we find that Respondent further violated Section 8(b)(4)(ii)(B) of the Act because an additional object of its picketing was to cause a cessation of business between TS and REL. We also find, contrary to the Administrative Law Judge. that Respondent's picketing violated Section 8(b)(4)(i)(B) of the Act because it induced or encour- aged neutral employees to stop working. The Admin- istrative Law Judge based the dismissal on his finding that Respondent's business agent told employees of Graybar, who inquired. and a business representative of the International Longshoremen's and Warehouse- men's Union (hereafter the ILWU), the union repre- senting Graybar's employees, that the employees were not to honor the picketing, but were to keep working. The Administrative Law Judge further found that there was no showing that there was any 2 See also International Union of Operating Engineers, Iwal 12. A Fl (10. et al arnamont Ppe (Compuan. Inc. 239 NLRB 500 (1978). where we found that the lack of knowledge of an election during the preceding 12 months was not a defense to a complaint alleging a violation of Sec. 8bt7H B). ' In Internatrinal Organization o . Uasters. Mates and Piliots. AFFL (10 likes Bros Steantship (orsmpan, ni ). 197 NlRB 363. 365 (1972). we Iound that an object of picketing b a union was o torce a cessation of business between neutral emplo.ers 243 NLRB No. 94 665 I6DECISIONS OF NATIONAL LABOR RELATIONS BOARI) work stoppage by' Graybar's employees. There is no evidence, however, that each and every neutral em- ployee, including those who did not inquire of Re- spondent's business agent and those who were not represented by the ILWU, including the employees of REL and other neutral employers, was told that they should continue working and cross the picket line.4 A picket sign which displays the name of a neutral em- ployer is calculated to induce and encourage employ- ees employed by neutral employers to refuse to per- form services in violation of Section 8(b)(4)(i)(B) of the Act, even though such picketing may not he suc- cessful in causing a work stoppage by the employees of neutral employers.5 Inasmuch as the name of neu- tral employer Graybar appeared on Respondent's picket sign, it is clear that an object of Respondent's unlawful picketing was to induce employees of Gray- bar and other neutral employers6 to engage in con- certed action to force their employers to cease doing business with TS, the primary employer. Accordingly, we find that Respondent's picketing violated Section 8(b)(4)(i)(B) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Gen- eral Truck Drivers, Warehousemen, Helpers & Auto- motive Employees, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, San Francisco, Califor- nia, its officers, agents, and representatives, shall: 1. Cease and desist from picketing or extending a picket line or engaging in other conduct to induce or encourage any individual employed by Graybar Elec- tric Company, Inc., Robert E. Landreth d/b/a REL Trucking Company, or any other employer or person engaged in commerce or an industry affecting com- merce to engage in a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, I Moreover. Respondent's business agent did not speak to the II.WU busi- ness representative until the second day of 2 days of picketing. and there is no evidence that the ILWU business representative passed the message to all of the members of his union. Carpet, Linoleum Soft Tile and Resilient Floor ('overing La'ers. Local Union No. 419, AFL CIO (Sears Roebuck and Co.), 176 NLRB 876. 886 -887 (1969), modified on other grounds 426 F2d 1328 (D C. Cir. 1970); Local 4. Hoisting and Portable Engineers, International Union of Operating Engi neers AFL-CIO (O. DiMascio Construction Corp.). 167 NLRB 888, 890 (1967); and N.L R.B v. Associated Musicians of Greater ew York. l.ocl 802, American Federation of Musicians, AFL. Gotham Brsadcasting (Corpora- tion. 226 F.2d 900, 904 (2d Cir. 19551. 6 See the discussion above where we found that an unlawful object in violation of Sec. 8(b)(4)(ii)B) of the Act of Respondent's picketing was to induce neutral employer REL to cease doing business with TS. the primary employer. articles, materials, or commodities or to perfbrm any services: or to threaten, coerce, or restrain the above- named employers or any other persons engaged in commerce or in an industry affecting commerce where in either case an object thereof is torcing or requiring either of the above-named employers or any other persons to cease doing business with William T. O'Brien d/h/a Transportation Specialists. 2. Take the fobllowing affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post in its business office and meeting hall cop- ies of the notice attached marked "Appendix." 7 Cop- ies of said notice, on forms provided by the Regional Director fr Region 20, after being duly signed by an official representative of said Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Promptly after receipt of copies of said notice from said Regional Director, return to her signed copies for posting by Graybar Electric Company, Inc., and Robert E. Landreth d/b/a REL Trucking Company, if they are willing, in all places where their notices to employees are customarily posted. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. It IS FUR I ER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not specifically found. 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NoTIcE To EMPI.OYEES AND MEMBERS POSTED BY ORDER OE TIlE NAIIONAI. LABOR RELATIONS BOARD An Agency of' the United States Government WE WIll.l. Nor picket or extend a picket line or engage in any other conduct to induce or encour- age any' individual employed byh Graybar Elec- tric Company, Inc., Robert E. Landreth d/b/a REL Trucking Company, or any other employer or person engaged in commerce or an industry affecting commerce to engage in a strike or a refusal in the course of his employment to use, 666 (;ENFRAL RUiCK D)RIVERS. LOC(AI. 85 manufacture. process, transport. or otherwise handle or work on any goods. articles. materials. or commodities or to perform any services: or to threaten. coerce. or restrain the above-named employers or any other persons engaged in com- merce or in an industry affecting commerce where in either case an object thereof is forcing or requiring either of the above-named employ- ers or any other persons to cease doing business with William T. O'Brien d/b/a Transportation Specialists. ([NFRA TRt'( K DRINVI.RS. WARtI()t'S - MEN, lIEL.PERS & At il)M()irI EMPIt()NI s, LOC()('AI. 85. INI RNAIi()NAI BRO()III RIt(II) OF TAMSSI'RS, CIIAI'FRI-tRS. WARl()t'IS- MEN ANt) H.PILRS ()1 AMI-RI(R ).DEC ISION SIAIMINI t )N1 I l (ASi SlANIvF Gii tlFRi. Administrative I.aw Judge: Based upon a charge filed on March 2. 1978. by Graybar Electric Company, Inc., hereinafter referred to as Gravybar. the complaint herein was issued on April 18. 1978. Said com- plaint, as amended during the course of the hearing. alleges that General Truck Drivers. Warehousemen. Helpers & Automotive Employees. Local 85. International Brother- hood of Teamsters. Chauffeurs. Warehousemen and Help- ers of America, hereinafter referred to as Respondent. vio- lated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing Graybar on March 2 and 3. 1978. and threatening to picket said Company "on or about March 2. 1978." Respondent. by its answer, as amended during the course of the hearing. denies. inter a/ia, that it violated the Act as alleged. Pursuant to notice. a hearing in this case was held before me in San Francisco, CalifiOrnia. on August 8 and 9. 1978. Appearances were entered on behalf of all parties. and briefs were received from the General Counsel and the Charging Party. Upon the entire record in this proceeding and my obser- vation of the witnesses as they testified. I make the follow- ing: FINI)IN(S ()F ACrI I. THI- B SINESS ()F TIE EMP.(LYERS INVOI Vl) IIER.IN As admitted by Respondent, at all times material herein, Graybar. a California corporation with a place of business in South San Francisco, California, has been engaged in the wholesale sale and distribution of electronic appliances and supplies. As is further admitted by Respondent. in the course and conduct of Graybar's business operations during the past year, it purchased and received goods valued in excess of $50.000 directly from suppliers located outside the State of California. As is also admitted b Respondent. Graybar is. and at all times material herein has been. an employer engaged in commerce and in operations affecting commerce within the meaning of Section 22). 6). and (7) of the Act. Although denied by Respondent. I ind that during the time material herein and up to the time of the hearing. 'illiam 1'. O'Brien d,'b/a Transportation Specialists, here- inafter referred to as TS. was an indi idual proprietorship under contract with Graybar to provide transportation ser- vices to it. Also. I find, as admitted b Respondent. that TS is. and at all times material herein has been. a person en- gaged in commerce and operations affecting commercc. Although denied by Respondent. I find that during the lime material herein and up to the time of the hearing. Robert . l.andreth d/b;/a REL Trucking Compan,. here- inafter referred to as REL. was an individual proprietor- ship. which contracted with TS to perform transportation ser% ices for TS which TS was to perform under the latter's contract with Graybar. Also. I find. as admitted b5 Respon- dent. that REL is. and at all times material herein has been. a person engaged in commerce and in operations affecting commerce. By its answer. Respondent alleges "that Craybar. TS and RFI. are allied employers within the meaning of the Act." This contention of Respondent is considered hereinbelow. 11. t lit ABOR OR(iANH/.Ail()N 1N I .( atl) As is admitted by Respondent. it is. and at all times ma- terial herein has been, a labor organization within the meaning of Section 2(5) of the Act. iii. 1ilt: I NI IR L.AH()R PRA('II('S The Relationship otf Graybar. TS and REL It is apparent from Respondent's cross-examination ot Landreth and Roger Cutler. branch operations manager ot Graybar. that. in support of its contention that the emplo - ers are allied employers. it was attempting to establish that neither REI. nor (irabar was a neutral employer in Re- spondent's labor dispute with TS. By its answer. Respon- dent admitted that it "has had a primary labor dispute with TS." but denied the allegation that it had no "primarN labor dispute with Graybar." It is further evident from said cross- examination that Respondent was attempting to establish that there was sufficient common control of the drivers who drove the two trucks which were used to service the truck- ing contract TS had with Gray bar that neither RE.. which furnished the drivers. nor Graybar should be considered to be neutral employers. To determine the relationship between the three employ- ers. it is necessary to understand the nature of the opera- tions of TS and REL and the contractual arrangements be- tween TS and Graybar and between TS and REI.. TS operates out of a trucking terminal (which it appar- ently shares with other truck operators) in Redwood C(ity. California. According to undisputed testimony in the rec- ord it "is licensed or operates under the rules and regula- tions of the (California Public lUtilities Commission." It does "general trucking. under the California MRT-2 tariff." and "contract trucking under the California PC MRT-15 con- 667 DI()E(ISIONS OF NATIONAL I.ABOR RELATIONS BOARD tract or tariff."' Further. while it performs hauling services with its own drivers and equipment. other "aspects" of its trucking operations are "farmed out to sub-haulers and in- dependent contractors." On October 31, 1977. TS entered into a "standard form of trucking contract" with Graybar under which it agreed to perform trucking services for Graybar: said contract is referred to in the record and herein as an MRT-15 contract. It is noted that Respondent did not have a contract with TS. was not recognized by TS as the collective-bargaining representative of TS's employ- ees, and there is no showing that said employees had autho- rized Respondent to represent them. REL operates as a trucking company under a "Cal. T. regular permit." Under "subhaul agreement" dated No- vember 14, 1975, with TS, as "prime carrier." REI. has performed subhauling for TS. Since November I. 1977. REL has performed, as a subhauler, the trucking services required of TS under the latter's aforementioned contract with Graybar. It is noted that from November 1,. 1977. and continuing through the time material herein. Graybar was not aware that REL was performing the trucking services which TS had contracted to perform for Graybar. It ap- pears that REL had no contract with Respondent, had not recognized Respondent as its employees' bargaining repre- sentative, nor had they authorized Respondent to represent them. Two trucks were used by REL in servicing Graybar un- der TS's contract with the latter. The trucks were originally leased by Graybar from Ryder, a truck rental company. and bore Graybar's logos2 as well as a small sign indicating they were rental trucks from Ryder. Graybar turned over the trucks to TS under an arrangement whereby the costs of the trucks under the lease from Ryder were deducted by Graybar from the amounts due to TS under its MRT-15 contract with Graybar. The trucks, when not in use. were parked at TS's terminal. Under its subhaul agreement. REL received 60 percent of TS's gross receipts from the latter's contract with Graybar and compensated TS for its (REL's) use of the aforesaid trucks by absorbing 60 percent of TS's costs for the use of the trucks. The record reveals that the three businesses were in- dependently owned and operated. The record further re- veals that neither Graybar nor TS exercised any significant degree of control over the performance of REL's drivers. over the hiring or firing of said drivers, or over REL's labor policies with respect to said drivers. Consequently, it is found that Graybar and REL were neutral employers with respect to Respondent's labor dis- pute with TS, which dispute is explained hereinbelow. It appears from the record that Respondent attempted to as- sert, as a defense, that it had a good-faith belief, based upon reasonable grounds. that Graybar was either the employer or joint employer with TS of the drivers of the two trucks (leased from Ryder) which were parked overnight at TS's terminal. This defense is considered hereinbelow. I Consequently it is referred to in the record and herein as an MRT-15 trucker. 2 The fact that the trucks bore Graybar's signs is not deemed to he of ans significance. Local 379. Building Maierial & E.rxcavaors. a/i Internaional Broiherhod d Teuamsters, Chauffeurs. Warlhousemen & He'pe'rs f Armeria (Caualano Bros. Inc), 175 NLRB 459. 469. Resondent's Conduct It is stipulated that Respondent picketed Graybar on March 2 and 3. 1978, with a sign that read as tollows: NOTI('E TO) FHE PL BLIC 1 HE EMPLOYEES )01 TRANSPORTATION SPE:('IALI I S sic] G RAY BAR WORK AT LESS THAN WAGES AND LABOR STANDI)ARDS AVERAGE FOR THE ('()MMIINIT Y TEAMSTERS LOCAL 85. IBI It is clear from the record that the picketing was not con- fined to periods when the aforesaid two trucks were at the Graybar site.' Jack Weintraub, business representative of Respondent, testified that the purpose of the picketing (which he arranged and conducted) was to get recognition of Respondent as the bargaining representative of the driv- ers of said trucks. He further testified that he wanted a contract with Graybar covering said drivers. but he also subsequently testified that he wanted Cutler to dictate to TS that it sign a contract with Respondent. His testimony is set forth more fully hereinbelow. Following is a summary of credited testimony of' Wein- traub. For some time prior to March 2, 1978, a Southern Califo)rnia firm named Alco had its deliveries in the San Francisco area made by Acme Drayage which had a con- tract with Respondent covering its drivers. Prior to said date the arrangement between Alco and Acme ceased and Respondent had information that Alco was using TS in- stead. At 4 a.m., March 2, 1978. Weintraub went to the terminal used by TS upon the instructions of Respondent's business manager. Upon seeing an Alco truck in the termi- nal yard, he set up a picket line with a sign naming TS (which he mistakenly thought was named Transportation Specialties) and Alco. Shortly thereafter, he and "some other people" from Respondent saw two Graybar trucks in the yard. Some time between 6 and 7:30 a.m. he saw the two Graybar trucks being driven out of the yard and he dispatched "pickets" to follow them and. when they got to Graybar. to set up a picket line. apparently with a sign containing the above-quoted legend. Toward the end of that morning (between 10 and I 1 a.m.) he joined the picket line at Graybar and then he disbanded the line "about noon. The following morning. March 3. he went to Graybar's premises after the aforesaid two trucks left the yard of TS and "set up" the above-described sign. Several Graybar em )It does not appear from the record that Respondent attenpted to, assert that it confined Its picketing of`(irahar to onls such times as the trucks A ere at that site 668 CGFNFRAL TRt'CK DRIVERS. OI.(CAl. 8S ployees asked him if the3 should honor the picketing and he told them that theN should go to work. Later in the morning Don Ruth. business representatisve of' ocal 6. 11 .Wt' which represented Crayhar's warehouse employees. called him into the warehouse. At that point he had a brief con- versation with Ruth, Mike Millar (I1Wt! shop steward). and two or three "other warehouse people." TheN asked him "whether Local 85 wanted the warehouse people to observe the picket line, to refrain from going to work," to which he replied "that we were not in any position. at this particular time, to carry through the type of picketing that we would like to do perhaps, and that it would he best all around if they crossed the picket line." It appears that about this time Cutler came up and told him to get off the premises. Ruth told Cutler that he had "invited me on," to explain his position to the warehouse people, and it was suggested that they repair to the "break room" to carry on any further discussion. Cutler. Weintraub, and Millar testified to the conversa- tion in the break room. Cutler testified that Weintraub said Graybar was using TS and "that as long as Graybar emblems were on those trucks," he was going to continue to picket Graybar. Cutler further testified that Weintraub asked him "to discontinue the services" of TS, and that he told Weintraub that he was not going to change "our mode of transportation." Cutler also testified that Weintraub said "that he was going to keep the pickets out there, and that I would be inviting him back in again." It appears from Cutler's testimony that their conversation was heated. Weintraub testified that he had a heated conversation with Cutler. Weintraub's testimony continued as follows: I argued that I was going to get a contract with him. I repeated again that-I think I repeated that I had had experience with MRT-15's and that I didn't care how many different people that he put his trucks around with, that he was going to sign a contract even- tually; that he had four trucks with the Graybar logo on them, and that eventually those four drivers would be union people. Weintraub further testified that he told Cutler, "I'm coming back. But the next time I'm coming back, you're going to beg me to come back." According to his testimony he then left the premises and "resumed the picket line." Weintraub denied that he asked Cutler to stop using TS. He further testified that the reason he "can say" that he made no such request is "because we have experience with MRT-15's, And I don't care who we sign or how we sign them, as long as we sign them. And as a matter of fact, I'm the one that suggested an MRT-15 to Mr. Cutler [apparently referring to earlier conversations he had with Cutler in October and November 1977 which are described hereinbelow]." Millar, who was called as a witness by Respondent. cred- ibly testified as follows: Well, Mr. Weintraub was talking to Mr. Cutler about how he followed the trucks down from Trans- portation Specialistis] and the) came in here, at Gray- bar: and that he was interested in a contract. And Mr. Cutler said that the trucks had nothing to do with Graybar. other than the name on it: and that Transportation Specialist[sl- the compan` paid a monthly fee to them: and that as long as the Gra', bar name was on the truck, Mr. Weintraub said the! would be in the limelight. Further, Millar denied that Weintraub requested that Cut- ler cease doing business with TS. While I cannot credit Cutler's testimon that Weintraub asked him to cease doing business with TS, in view of the above denials and the omission of an, mention of such a request in Cutler's pretrial affidavit. I am convinced from the above testimony that Weintraub made it quite clear that Respondent would picket Graybar unless the drivers otf the aoresaid two trucks were covered h) a contract with the Union. Based upon that it is understandable that (Cutler reasonably interpreted Weintraub's statements as being a threat to continue picketing Graybar as long as Grashar continued doing business with TS. unless TS signed a con- tract with Respondent. It appears that Cutler made it clear to Weintraub that the drivers were not employees of (ira',- bar, and, impliedly. that it could not sign a contract with Respondent as their employer. That Weintruabh so under- stood is disclosed by the answers Weintraub gave to m questions and other evidence set frth hereinbelow. It is apparent from the record that Respondent at- tempted to establish through Weintraub's testimony that it had reasonable grounds to believe that Graybar was the drivers' employer or joint employer, and that it did not know that TS was an independent MRT-15 trucker. Wein- traub credibly testified that in October 1977 he learned that two of the four drivers who drove trucks with Gra\bar lo- gos were supplied by a firm called "Adia" (Adia Tempo- rar\ Services), which apparently functioned as an employee service broker, in that it supplied drivers which it paid. but which were under the control of Grayhar: that he also knew that the other two drivers referred to as Cain and Lefler operated as an MRT-15 trucker: that back in 1973 the operation of' Cain and Lefler had been under contract with the Union, but no longer was;' that in October and November 1977 he had meetings with Cutler in which he asked Cutler to sign a contract covering the four drivers: that in November Cutler refused to do so because the dri,- ers were not in his employ: that an unfair labor practice charge was filed by Respondent against Graybar and Adia as joint employers over the discharges on October 31. 1977. of the two drivers furnished by Adia: and that, after Cut- ler's refusal in November to enter into a contract. because he was too busy to do so, he made no further effort "to organize Graybar or get a contract," but kept an "open file" on the matter. It is noted that after discovering the trucks with the Graybar logos on March 2. 1978. at the TS ard. Weintraub made no effort to find out the employment sta- tus of the drivers or. for that matter, whether theN desired to he represented by Respondent. I He also testified that he did nt knos at the time hether hat contract las still in effect 669 I)[l('ISI()NS OF NATIONAL IABOR RA AIONS BO()ARD) Following is the testimony of Weintraub to questions I asked of him:' JAut(;l Gii.il RI: May I ask a question at this point? I'm somewhat confused. You testified that you expected the employees of Graybar to pick the trucks up at the Transportation Specialistis] yard. If that is what you expected. why did you picket Transportation Specialist[s]? The Witness: I was already there. Your Honor, on another matter. JUl)(i;E GMlRt: You put Transportation Special- istis] on the sign, why did you do that, if Otlu thought they were being the trucks were being operated by Graybar? The Witness: I had already had experience with Graybar in a co-employer status with somebody else. I knew that they had moved. I didn't know where they had moved. Now. I found out where they moved. I found what I figured to be another co-employer status. JUDGE GII.BI.RI: Why didn't you go into the office and ask them to have their drivers join the union, in- stead of just ignoring them? I don't understand what was going on in your mind, since we are talking about what your object is. * * * * * In answer to your question, Your Honor. my experi- ence with MRT-15's is that the MRT contractor usu- ally does what the basic employer wants him to do or the her to do, as the case may be: that is, if they say. sign the contract, then the MRT contractor will sign the contract. They act as an entity. My main employer in a co-employer status would have been Graybar. Mr. Cutler is the one I wanted to bargain with. * * The Witness: I considered, Your Honor, that Trans- portation Specialist[s], that whatever arrangement he had, if there was one with Transportation Specialist[s]. was the same as what he had with Adia. Jtt(;E GILBERT: Did you tell him that? The Witness: I told him it was subterfuge or I indi- cated that it was a subterfuge. JUDGE GIL.BERT: All right. Let me ask a question. You earlier testified that one of the reasons that you went to Cutler was that you knew that-What do they call these? MR. WIRTS: MRT-15. JUD(GE GILBERI: -that these MRT-15 carriers can be dictated to by the people for whom they carried? The Witness: That's my experience, Your Honor. JUDGE GII.BERT: So was not your purpose of going to Cutler to get him to dictate to Transportation Spe- cialistis], being on MRT-15 carrier, that they should sign up with you that it should sign up with you? sThe questions and answers are extensively quoted, since I am of the opinion that a digest of them could not appropriatel) reflect their substance. [he Witness: Yes. Your Honor. I guess that would be true. I considered him to he the employer. My expe- rience in these cases is that. as you had pointed out. this is .JurI) (;i i IsRI: You knew that there was a contract with (ain. The Witness: Had been. JltD)(ft GIIBiR I: Itad been. With the father. Cain's father. You didn't have a contract with Graybar, even though Cain worked for them. Is that correct? You never had a contract with Gray har. did you? The Witness: In effect, it was a G(raybar contract, as Ifar as we were concerned, it covered the GiraN har driv- ers. JDi)(;i GIIRIII: Grayhbar was not a party to that contract that ou knew of" was it'? It was not a signa- tory. The Witness: No. not in that sense, Your Honor. JUrt;t: G(il ltR : I'm talking about a party executing a contract, correct? The Witness: That's right. Your Honor. JUi)(;i (jItBtR R: Now, if you had a contract signed by Father Cain. meaning the older Cain, weren't you seeking then a contract from Transportation Special- istis]. as an MRT-15 contractor? The Witness: Eventually, Your Honor. JLII)D(; GiL BRI: All right. ]The Witness: Your Honor. at that point, I did not know for sure whether there was an MRT-15. Nobody had told me that. JLt l(;l G II R I: Didn't it occur to you to investigate what Transportation Specialist[s] was, before you at- temnpted to work out some arrangements in connection with them? What did you want Cutler to do? The Witness: Sign a contract. Ju)rl Git BIERI: How could he sign a contract with you, if the employees were that of MRT The Witness: Nobodv told me that. I had suggested MRT- 15's to him. He never responded whether he had one or not. Jll)(;- CG.IBItRI: Didn't he tell you that they were not his employees? The Witness: Yes. That he did, Your Honor, and I didn't believe him. for the reasons I've just explained. Weintraub's testimony of his confusion on March 2 and 3 as to the relationship between Graybar and TS and the nature of TS's operations (as being similar to Adia) is belied by the following notice which Respondent apparently dis- tributed to its members: IMPORTANT IMPORTANT IMPORTANT MEETING TONIGHT THURSDAY, MARCH 2, 1978, AT 6:00 p.m. Teamsters meet us tonight at 6:00 p.m. at Bay and C(harter in Redwood City. Transportation specialists, Rapid Freight System. Marina Trucking. Bay Brahy's Delivery. and Asac have all joined together and 670 GENERAI TRtI('K DRIVERS. IOCAI 85 opened a terminal at 2307 Bay Road. in Redwood Cit. These scab outfits are now actively soliciting and taking away accounts from union trucking firms. They are paying their drivers wages starting at $3.50 per hour. If you want to protect our wage rates join us in a protest demonstration to advertise to the public the conditions that exist at this terminal. Alco and Graybar are two accounts that were deliv- ered by drivers working under our scale who are now handled by this terminal. YOUR JOB CAN BE NEXT! JOIN IIS LOCAL 85 EXECUTIVE BOARD Both Cutler and Weintraub credibly testified that during the time material herein they had no knowledge of REL's arrangement with TS. Concluding Findings Weintraub was not a convincing witness in support of' Respondent's apparent contention that it had a primary labor dispute with Graybar or that it had reasonable grounds to believe that Graybar was a "co-employer" with TS. While on the one hand he testified that he did not know that TS was an MRT-15 trucker, on the other hand accord- ing to his testimony he picketed Graybar because he knew that users of MRT-15 truckers are in a position to "dictate" to them. Also. while on the one hand he testified he wanted a contract from Graybar, he admitted that "eventually" he was seeking a contract with TS. In any event, any doubt there may be as to Respondent's object in picketing of Graybar is dispelled by the above-quoted notice to Respon- dent's members. It is clear therefrom that Respondent was urging its members to join in protesting that union truckers had lost customers to nonunion truckers including TS and that one of the customers TS was servicing was Graybar. It is found, therefore, that by picketing Graybar, Respondent was protesting Graybar's use of TS and thereby attempting to coerce Graybar to cease doing business with TS. It is further found that Graybar was a neutral employer in Re- spondent's admitted labor dispute with TS and that by picketing Graybar in the furtherance of that dispute it vio- lated Section 8(b)4)(ii)(B) of the Act.' The General Counsel contends that Respondent violated Section 8(b)(4)(ii)(B) of the Act by picketing Graybar with a further object of causing TS to cease doing business with REL. As noted hereinabove, not even Graybar knew of the subhauling arrangement REL had with TS. Furthermore. it appears that not only did Respondent not know of said arrangement, but there is no basis for a finding that it could have suspected it existed. Consequently, I am of the opinion that it would be inappropriate to find that Respondent I Even if i were to be !ound that Respondent inadvertently erred in belies- ing Graybar was a cemplo)er with TS. I am not persuaded that such finding would constitute a valid defense. Nari, nal 4sso iaion ,/ Briuadcat Emplovees and Technicians. AL (10. Local / (BS. Inc , 237 NRB 1370 (1978) picketed Grayhbar for such an object. While it w ould follow that. if' Respondent caused Graybar to cease doing business with 'TS. RL would have to lose that portion of the subh- hauling business it receipted fronm TS. it appears that. in the circumstances. such a possible result should he regarded as being merely incidental to Respondent's object in picketing (;raybar. The Gieneral Counsel futher contends that b\: picketing Graybar. Respondent also violated Section 8(b)(4)(i)(B) of the Act. There is uncontradicted and credited testimon\ that Weintraub told rashbar's emploees who inquired, as well as the business representative of their union, that the, were not to honor Respondent's picketing. but to keep working. IThere is no showing that there was an\ work stop- page by Graybar's employees. onsequentl, it does not appear appropriate to find that said section of the Act ; as violated b Respondent.' L:pholstrer r Frame &, Rdding W4 orkers Twsin City Local 61 (Minneapolt House Furnishitng (Colpat), 132 N R B 40. 41 (1961). It is alleged, and the General Counsel contends. that Re- spondent also violated Section 8(h)(4)(O(B) of the Act by threatening to picket Graybar. Inasmuch as Weintraub clearly indicated to Cutler in their conversation on %March 3 that Respondent would continue to picket (irabar and it has been found that said picketing was violatie of' said section of the Act. it follows that the threat to continue such picketing is also violative of said section. Tealtl.cer ('tlhlr- /fieurs. arehousemen and Helpr.rs Local 901. IR70'(' d 11 of' America ( 'cla.co) Trucking Co.), 146 NL.RB 1542. 1550 (1964). I\. it 11- 1-1 I ( I 1 HI NIFAIR t.ABIR PRAt 11( I S Ps I ()MMR( IU The unfair labor practices of Respondent set forth in sec- tion 111. above, occurring in connection with the operations of TS and Graybar described in section 1. above, have a close, intimate, and substantial relation to trade, traffic. and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. \. 1ie RIME-)Y It having been found that Respondent has engaged in certain unfair labor practices. it will be recommended that it be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact. and upon the entire record in the case, I make the following: CON( I t SONS tl [.A\. I. Respondent is a labor organization within the mean- ing of Section 25) of' the Act. It is noted that in Grashbar's brief there is no menllon of a olatton of said section of the Act 671 I)l.CISIONS OF NATIONAL. LABOR RELAl IONS BOARD 2. Grayhar. S. and REL are persons engaged in com- merce or in operations affecting commerce within the meaning of Section 2(2). (6). and (7) and Section 8(b)(4) of the Act. 3. By picketing Girayhar with an oject of forcing or re- quiring it to cease doing business with TS and by threaten- ing to continue said picketing. Respondent iolated Section 8(b)(4)(ii)(B) of the Act. 4. The General Counsel has tfiled to prove bh a prepon- derance of the evidence the allegation that Respondent vio- lated Section 8(b)(4)i)(B) of the Act. [Recommended Order omitted from publication.] 672