Dallas General Drivers, Warehousemen Etc.

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dallas General Drivers, Warehousemen and Helpers Local Union No. 745 and Dallas County Construction Employers' Associa- tion, Inc. Case No. 16-CC-91. August 2If, 1959 DECISION AND ORDER On June 5, 1959, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General Coun- sel, the Charging Party, and the Respondent filed exceptions to the Intermediate Report together with supporting briefs. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. We agree with the Trial Examiner that Respondent Union, by its picketing at the construction sites of neutral employers, induced or encouraged employees of such neutral employers to discontinue work with an object of forcing or requiring the neutral employers to cease doing business with Macatee, Inc., the primary employer. We base our conclusion that the picketing of construction sites was for such unlawful objective upon the following : (1) The primary employer, Macatee, had a permanent place of business where all its employees, including those not directly involved in the labor dispute with the Respondent Union, regularly reported, and where the Respondent Union could and did publicize its dispute to, and solicit the support of, Macatee's employees.2 If the Respond- ent Union's object was only to seek the support of the primary em- ployer's employees, there was no need for picketing the premises of neutral employers. (2) The Respondent Union's letter to employers in the construction industry in Dallas requesting them to cease doing business with Macatee until the labor dispute was settled.' 'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Members Rodgers, Bean, and Fanning]. 2 Amarillo General Drivers, Warehousemen and Helpers Local Union No. 577, affiliated with, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. of America (Crowe-Gulde Cement Company ), 122 NLRB 1275. 8 Idem. (in this case a substantially identical letter was held evidence of the respondent union's objective in engaging in secondary employer picketing. See footnote 4) ; N.L.R.B. v. Associated Musicians, Local 80 2, AFL, 226 F. 2d 900, 904 (C.A. 2) ; N.L.R.B. v. Denver Building and Construction Trades Council , 193 F. 2d 421 , 423-424 (C.A. 10). 124 NLRB No. 87. DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 697 (3) In many instances, employees of neutral employers quit work when Respondent Union's pickets appeared.' (4) On February 26 and 27, 1959 , Respondent Union's pickets picketed the entire length of the John Deere property facing on Harry Hines Boulevard rather than limiting themselves to the area adjacent to the place where Maca.tee's employees were working on the project.5 On February 25, 1959, Respondent Union's pickets continued picket- ing the Richardson project for 2 hours after Macatee's and other em- ployer's employees had ceased working and had left the job. In view of the foregoing , we find, as did the Trial Examiner, that Respondent Union violated Section 8 (b) (4) (A) by its picketing at the construction sites of neutral employers.' 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 Respondent Union, Dallas Gen- eral Drivers, Warehousemen and Helpers Local Union No. 745, its officers, representatives, agents, successors, and assigns, shall : 1, Cease and desist from engaging in, or inducing or encouraging employees of employers other than Macatee, Inc., to engage in a strike or a concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or cominodities or to perform any services, where an object thereof is to force or require any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of Macatee, Inc., or to cease doing business with that company or any other company. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 4 Amarillo General Drivers, Warehousemen and Helpers Local Union No. 577, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Crowe-Gulde Cement Company), supra. 5 Amarillo General Drivers, Warehousemen and Helpers Local Union No. 577, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Crowe-Gulde Cement Company), supra. I In affirming the conclusion of the Trial Examiner, we have not adopted his reasoning based on the supposed analogy to Otis Hassey Company, Ltd. (109 NLRB 275, enf. denied 225 P. 2d (C.A. 5), cert. denied 350 U.S. 914). In Otis Massey, the circuit court refused to enforce the Board's decision because it felt that the Board had ignored evi- dence which it regarded as establishing that the respondent union was not picketing for an unlawful objective. The court later pointed out that in its Otis Massey decision the other employees of the primary employer at the common construction situs picketed "almost never came to the primary employer's principal situs, the warehouse," and the criteria evolved by the Board in Moore Dry Dock Company (92 NLRB 547) "were scrupulously observed." N.L.R.B. v. Truck Drivers and Helpers (National Trucking Co.), 228 F. 2d 791, 796 (C.A. 5). See also N.L.R.B. v. Associated Musicians, Local 802, AFL, 220 F. 2d 900, 906 (C.A. 2). In the present case, we rely for our finding of illegal objective not only on the fact that the primary employer had a permanent place of business where the Respondent Union could adequately publicize its dispute to all employees of the primary employer, including these not directly involved in the dispute, but also on the other evidence set forth above. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its offices and at all other places where notices to mem- bers are customarily posted, copies of the notice attached hereto marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by an official representative of Respondent Union, be posted immediately upon receipt thereof and be maintained for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for the Sixteenth Region signed copies of said notice for posting at the plants and projects listed on Appendixes B and C attached to the Intermediate Report, the com- panies willing, in places where notices to employees are customarily posted. (c) Notify the Regional Director for the Sixteenth Region in writ- ing, within 10 days from the date of this Decision and Order, of the steps it has taken to comply herewith. "In the event that this Order is enforced by a decree of a 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." APPENDIX A NOTICE TO ALL EMPLOYEES 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, as amended, we hereby notify you that : WE WILL NOT engage in, or induce or encourage employees of employers other than Macatee, Inc., to engage in, a strike or a concerted refusal in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is to force or require any em- ployer or other person to cease using, selling, handling, trans- porting, or otherwise dealing in the products of Macatee, Inc., or to cease doing business with Macatee, Inc., or any other company. DALLAS GENERAL DRIVERS, WAREIHOUSEMEN AND HELPERS LOCAL UNION No. 745, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (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. DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. INTERMEDIATE REPORT 699 This proceeding involves allegations that Dallas General Drivers, Warehousemen and Helpers Local Union No. 745, Dallas, Texas , herein called the Respondent, has engaged in, and induced and encouraged the Employees of Bock Construction Co,. herein called Bock; Wm. H. LaDew Co., herein called LaDew; O'Rourke Construc- tion Company, herein called O'Rourke; Russell Plumbing Company, herein called Russell; Ed Hogan, d/b/a Hogan Plastering Contractor, herein called Hogan; American Roofing Company , herein called American; Gotham Electric Company, herein called Gotham; Crisp & Vaughn, herein called Crisp ; and of other employers, to engage in, a strike or concerted refusal in the course of their employment to use, process, transport, or otherwise handle or work on goods, materials , articles, or commodities, or to perform services , an object thereof being to force or require O'Rourke, Bock, and/or other employers or persons, to cease doing business with Macatee, Inc., herein called Macatee . It is alleged that this conduct violated Section 8(b) (4) (A ) of the National Labor Relations Act, as amended ( 61 Stat. 136), herein called the Act . After the filing of a charge by Dallas County Construction Em- ployers' Association , Inc., herein called the Association , the issuance of a complaint by the General Counsel, ' and the filing of an answer by the Respondent, a hearing was held before Trial Examiner on April 8 and 9, 1959, at Dallas, Texas . All parties were represented and participated fully in the hearing . The General Counsel, the Association, and the Respondent filed briefs which have been duly considered. Upon the entire record in the case , including stipulations of the parties, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. The Respondent is, and at all material times has been , a labor organization within the meaning of the Act. 2. Macatee is, and at all material times has been, a dealer in wholesale and retail building materials and supplies, and a contractor in the building and construction industry . Macatee's plant, offices , and warehouse are located at 4703 Bengal Street, Dallas, Texas . Macatee annually purchases materials and supplies shipped from outside the State of Texas valued at in excess of $50,000, and sells materials and performs services outside the State of Texas valued at in excess of $50,000. 3. On October 8, 1956, the Board, through the Regional Director for the Sixteenth Region, herein called the Regional Director , certified the Respondent as the collective- bargaining representative of all truckdrivers , truckdrivers ' helpers, glasscutters, ware- housemen, shipping and receiving clerks, and machinists or mechanics at Macatee's warehouse at Dallas, Texas , excluding all other employees , office clerical employees, watchmen, guards, and supervisors.2 Macatee employs other workers not included in the above-described unit, such as carpenters, roofers, sheet metal workers, and laborers , who are employed in Macatee's construction division. 4. At the time of the hearing herein, the average number of employees in Macatee's construction division was as follows : Acoustical and flooring , 34 (an average of approximately 20 employees in the acoustical tile department and approximately 15 in the flooring department ); roofing and roof deck , 47 (an average of approxi- mately 25 employees in the deck department and approximately 20 in the roofing department ); a total of 81. In hiring employees in the construction division Macatee generally hires former employees. 5. Prior to May 12, 1958, each construction division employee, on the average, reported to the Macatee premises on Bengal Street approximately three times each week.3 They reported there under the following circumstances : to receive new job assignments upon completion or near completion of the job in progress or for trans- 1 The designation General Counsel is intended to include the General Counsel of the National Labor Relations Board and his representative at the hearing. 2 Macatee, Inc., Case No. 16-RC-1912 , of which I take official notice. s The General Counsel and the Respondent stipulated that these employees reported approximately two and one-half ,times each week during this period . The Association did not join in this stipulation . Later all parties stipulated that , if called as witnesses, Macatee officials would testify that these employees reported on the average of approxi- mately four times per week during this period. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fer to another job; to pick up additional material and equipment; to pick up weekly paychecks. Prior to May 12, 1958, there was no absolute requirement that all construction employees report daily to Macatee's premises, although many of these employees were required to report daily as follows: Since 1945 the employees in the deck department have been required to report to the Macatee premises daily. Construction employees in the roofing department, prior to May 1958, almost always reported to the Macatee premises each morning. The nature of the work performed by employees in this department is dependent upon the progress of other employees working on the job and therefore these employees generally, but not always, reported daily to the Macatee premises for their job assignments. Some of the construction employees, including all of the deck department employees, reported back to the premises at the conclusion of the day's work. 6. The north boundary of Macatee's premises is a railroad track. The distance from the Macatee yard gate to the railroad track is approximately 279 feet. There is a second railroad track approximately 385 feet north of the first railroad track. Wyche Lumber Company, herein referred to as Wyche, is located adjacent to and south of the first railroad track. Between the first and second railroad tracks Tempco and Royal Glass Company are located on the east side of Bengal Street and Vitalic Battery Company is located on the west side of Bengal Street. Vitalic's premises extend north of the second railroad track. Bengal Street dead ends at the south boundary of the Macatee premises and is joined to the west by a through dirt road which is in rough condition and is not used by Macatee. There is a vacant lot directly across the street from Macatee which is owned by Wyche, whose building adjoins this lot to the north. Macatee has obtained the right to use this lot as a business accommodation, Macatee being a customer of Wyche. The arrangement is equivalent to a tenancy at will, there being no written lease or contract or definite term of occupancy. Macatee has agreed to clear the under- brush, level the ground, maintain the property, return it in good condition, and has assumed liability arising from the use of the property. Macatee has had the use of the lot for approximately 4 years. In mid-September 1958 Macatee placed a portable metal-clad shed on the lot. From time to time, employees in the unit repre- sented by the Respondent deliver materials and equipment from Macatee's ware- house to the lot and from the lot to the warehouse. 7. In May 1958, the Respondent became engaged in a labor dispute with Macatee regarding the terms and conditions of employment of the employees in the above- described unit who are represented by the Respondent for collective-bargaining purposes. In support of their demands which Macatee refused to grant, those employees represented by the Respondent went out on strike on May 12, 1958, and engaged in peaceful picketing at Macatee's plant, offices, and warehouse. This picketing, which still continues, is not alleged to be illegal. Not all of Macatee's employees honored the picket line. On each occasion that the construction division employees have reported to Macatee's Bengal Street premises since May 12, 1958, they have seen the pickets and the signs carried by them, except on Saturdays and Sundays on which days the pickets do not picket the premises. 8. The Macatee trucks formerly driven by striking members of the Respondent are now being driven by new Macatee employees and being utilized in transporting building construction materials and supplies from Macatee's warehouse at the address above specified to various job sites in the Dallas area. Operators of these vehicles make numerous trips each day from the Macatee warehouse to construction sites. On the average Macatee drivers cross the picket line at the Bengal Street premises six to eight times a day while picking up and delivering material. 9. Between on or about May 17, 1958, and mid-August 1958, Macatee construc- tion employees reported at various locations. Some reported across the street from the Macatee Bengal Street location, others reported at job sites, and still others re- ported at locations removed from the Macatee premises and job sites. 10. From mid-August 1958 to March 27, 1959, the following reporting practices prevailed: On or about August 12, 1958, verbal instructions were given by Macatee to its supervisors to begin informing construction employees to report at the vacant lot directly across the street from the Macatee premises, described above. By August 18, 1958, all construction emlovees had been so informed. On August 21, 1958, a mimeographed notice was distributed to all construction employees. It read: DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 701 MEMO: This is to confirm the verbal order heretofore issued August 12th to the roofers and effective August 18th as to all personnel . This order was to the effect that all personnel will report to the office of the Company at 4703 Bengal -Street for job assignment and details. Your respective Superintendent will arrange to meet you on the lot directly in front of the office. This lot will also be the designated area for reporting to for any changes in assignments during the day or week. The Management. MACATEE, INC. Macatee's construction employees were instructed to report daily to this lot before proceeding to work on the construction projects, and the Respondent 's pickets at Macatee's warehouse and plant were in plain view of the construction employees when they so reported for work assignments. Since on or about August 21, 1958, the employees in Macatee 's construction division have usually reported to the vacant lot daily for job assignments , although there have been exceptions . On one job of long duration four of nine employees were given permission by the construction superintendent on the job to report directly to the construction job site because of the proximity of the job site to the employees' homes. Those employees reported directly to the job site on 9 of the 18 days the crew worked on this project . Other exceptions have occurred, as will be discussed below. Macatee management has not given permission to the men to report directly to job sites, although permission or acquiescence may have been given by construction supervisors and foremen , without the knowledge of Macatee management . No records or rolls are kept which reflect the names or the number of employees who report or fail to report to the Macatee premises for job assignment. Another major exception was that most of the time from August 21, 1958, em- ployees in the flooring and acoustical tile departments, the same being carpenters and carpenters' helpers, have not reported directly to the vacant lot because they would not cross the picket line at the Macatee premises . Instead, when they reported they generally reported on Bengal Street at a point between the two railroad tracks approximately 75 feet north of the Macatee premises . The picket was visible from where the carpenters assembled. The Respondent's pickets observed that, on the average, the number of men who they knew or had reason to believe were construction division employees who reported at or around the Macatee premises on Bengal Street each morning was as follows: from 10 to 12 employees in the acoustical tile department , from 8 to 10 employees in the flooring department , and substantially all of the employees in the roofing and deck departments. 11. Beginning on the morning of March 27, 1959, the Respondent , for the first time, picketed the vacant lot across the street from Macatee 's premises on Bengal Street, which picketing has continued to date. Such picketing was with signs bearing the following inscription: ATTENTION MACATEE CONSTRUCTION EMPLOYEES Please do not report to work behind our picket line. Please help striking Macatee Teamsters to win fair wages and a union contract On March 27 the Macatee construction employees who assembled for work assignments at the vacant lot crossed the picket line and received their assignments on the vacant lot. On that same day the carpenters assembled between the railroad tracks on Bengal Street. As Saturday and Sunday were not regular work days for Macatee employees and work on those days by construction employees was unusual , it was not the practice to picket on the weekends . The next picketing of the vacant lot occurred on Monday , March 30. On that morning the roofers who regularly assembled at the vacant lot continued to do so although they moved around to a far corner of the lot for their assembling . The carpenters assembled at their usual location on Bengal Street. On the following morning, Tuesday , March 31, the carpenters assembled at their regular location up Bengal Street , although the roofers, comprising the deck and roofing departments , assembled in the street, having refused to cross the picket line which patrolled the vacant lot. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 1, 1959, and continuing to date the Respondent has engaged in additional picketing around the Macatee premises on Bengal Street as follows: Pickets walked back and forth from curb to curb on Bengal Street at a point just immediately north of where the carpenters had been assembling. They carried signs reading as follows: ATTENTION MACATEE CONSTRUCTION EMPLOYEES Please do not report to work behind our picket line. Help Macatee Teamsters to win fair wages and a union contract. We are picketing Macatee only not any other person or firm.4 On April 1 such picketing occurred, and, in addition to picketing at this location back and forth across Bengal Street, pickets also moved further north to encircle the area where carpenters were assembling which was now further north than they had previously been assembling. Some of the roofing and deck department em- ployees also stopped before they reached the picket line, and these were also encircled to some extent by a picket. Some of the roofers and carpenters crossed the picket line and received work assignments in front of the Macatee building on Bengal Street. Since April 1, when the above-described picketing in the street has been in progress, picketing has also continued at the vacant lot and at the Macatee premises with the same picket signs originally used at those locations. On Thursday, April 2, the same pattern of picketing which had occurred on April 1 occurred, and all employees either crossed the picket line or received their orders while being encircled by pickets up and down Bengal Street. On Friday morning, April 3, the same pattern of picketing occurred except that approximately 15 carpenters in the acoustical tile department refused to cross the picket line and were advised by Peyton Byrne, vice president in charge of Macatee construction, that if they wished to receive their assignments, they must come to a meeting place in front of the main entrance of the Macatee building. This was located behind a picket line, and the carpenters refused to cross the line and receive assignments. Therefore they received no assignments for that day and performed no work for Macatee on that day. On the afternoon of April 3, A. J. Christian, business agent of Carpenters Local Union 198, had a telephone conversation first with Byrne and next with George P. Macatee, III, president of Macatee. In those conversations Christian requested that Macatee not require its carpenters to receive their work assignments behind a picket line, and Byrne and Macatee replied that they would try to have the matter worked out by Monday morning, April 6, but they did not know what they were going to do. On Monday morning, April 6, the same pattern of picketing occurred as on the preceding Friday, except that work assignments were given to the carpenters north of their usual assembly place on Bengal Street. This assignment was made while a picket was encircling the group. On the morning of Tuesday, April 7, the same pattern of picketing occurred, except that the picket across Bengal Street had been moved farther north so as to include the area referred to in the preceding paragraph. The carpenters remained in that area for a short period of time and were given their work assignments. The furthermost point of picketing by the Respondent has been approximately 35 feet north of the second railroad track from curb to curb on Bengal Street, which picketing occurred close to Macatee employees and was for the purpose of inducing such employees not to report for work assignment.5 On some occasions each day since April 1, 1959, the pickets have moved north on Bengal Street to intercept construction employees approaching Macatee's premises. Approximately 50 percent of Macatee's employees report back to the plant in the afternoon after work. 4 The words "ATTENTION MACATEE CONSTRUCTION EMPLOYEES" were in red lettering and all other words were in black lettering. 5 The finding that the picketing was for this purpose is based upon a stipulation between the General Counsel and the Respondent, which the Association did not join. The Asso- ciation objects to this finding, so based. The objection is overruled. The stipulation amounts to an admission against interest by the General Counsel regarding the purpose of such picketing. DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 703 12. The Association is, and at all material times has been, a membership organiza- tion composed of approximately 140 building contractors and subcontractors in and around Dallas, Texas. Macatee is a member of the Association. 13. On May 22, 1958, the Respondent wrote to the Association, to each of its members, and also to all other employers in the construction industry in Dallas whose names and addresses were available to the Respondent. This letter, on the Respondent's stationery, read as follows: GENTLEMEN: You are hereby advised of the labor dispute between this union and Macatee, Inc. Almost 100% of the Macatee employees went out on strike on May 12 to protect their wages and working conditions, especially their job security, and with the hopes of obtaining needed improvements in their contract. Macatee's stubborn efforts, to tear down what the union had built up, forced this strike. We are writing to acquaint you with these facts, for we hope and expect that you will make no purchases from or do any business with Macatee, Inc. until this labor dispute is settled. In the meantime we would appreciate your diverting such business to other building material suppliers. In deciding whether to make purchases from Macatee you will probably want to know how long this strike will last. Here are the facts, so that you may answer that question for yourself: every employee, with but one exception, joined the strike, and the strike is authorized, supported and financed by all proper groups within the Teamster organization. The strikers are determined to stay out until they are offered a decent contract. On the other hand, Macatee has indicated no change in its stubborn resistance to reasonable improvements. Although the union advised that it was ready at anytime to meet when and if the company's attitude changes, the company has not asked for a meeting since the strike began. Thus, unless the company changes its attitude soon, Macatee will not be able to give you normal service anytime in the forseeable future. We have another request to make of you. Should Macatee succeed in hiring sufficient numbers of strikebreakers, the union may wish to picket the Macatee operations which these strikebreakers perform and/or where other Macatee em- ployees may be working. Should you do any business with Macatee requiring that these strikebreakers or other Macatee employees perform work on any of your jobs or at your premises, whether by unloading trucks or otherwise, we want an opportunity to picket right at the primary sites of the dispute and as close to the actual and regular operations of these Macatee employees as pos- sible. Our picket signs will indicate that the dispute is with Macatee, Inc., only, and we will not seek to induce or encourage a concerted refusal by any other em- ployees to perform work or handle goods. Therefore, if strikebreakers come on your job, we hereby ask permission for our pickets to come within the premises controlled by you and picket directly adjacent to the place where and when Macatee employees are working. Should we not receive such permission within the next three days we shall assume you have refused this request. In that event we may picket the entrances of your job when Macatee employees are working within the job premises. Our only purpose, however, will be the same as stated above. Such picketing will not be directed to your company and to your em- ployees, nor to subcontractors, and their employees. We hope for your cooperation. Yours very truly, (S) W. L. Piland, W. L. PILAND, Secretary-Treasurer and Business Manager. On or about July 18, 1958, the Respondent again wrote to these construction con- tractors and subcontractors, on its stationery, as follows: GENTLEMEN: Your attention is directed to our letter to you dated May 22, 1958, regarding the Labor dispute between this union and Macatee Inc. In that letter we advised that should a strike breaker, or any other Macatee employee, perform work on any of your jobs or at your premises, we may want to picket it at such primary sites where Macatee employees are working. Such picketing would, of course, be directed to Macatee only. Therefore, we asked you to permit our pickets to come within the premises controlled by you and picket directly adjacent to the place where and when Macatee employees are working. We did not receive such permission; however, we hereby renew that request. Unless advised promptly to the contrary, we shall accept your failure to reply as your continued refusal to grant this permission. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event we decide to picket Macatee where its employees are working on any of your jobs, such picketing will be directed against Macatee employees only and not against anyone else. You may use this letter to advise your own employees or employees of other contractors except Macatee employees, that we do not seek to induce or en- courage them to refuse or to perform any work or to handle Macatee or.other materials. Yours very truly, (S) W. L. Piland, W. L. PILAND, Secretary-Treasurer and Business Manager. None of the contractors or subcontractors to whom the above letters were sent granted the Respondent permission to come upon the'job site to engage in picketing of Macatee within the job site. 14. Beginning in July 1958, the Respondent also picketed Macatee at construction job sites at which Macatee construction employees were working at various points throughout Dallas County. These job sites were occupied not only by Macatee em- ployees but also by employees of general contractors and subcontractors. The Re- spondent's picketing of Macatee at these job sites was conducted on public property adjacent to the job sites by pickets patrolling entrances to such job sites and other en- trances with banners bearing the following legend: MACATEE BUILDING MATERIALS ON STRIKE We are only picketing Macatee and its employees working on this job site. We are not picketing any other company or employees of any other company. DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS OF AMERICA-LOCAL 745 At all times when such picketing adjacent to a job site was conducted, Macatee was employed on the job site, and Macatee employees were there engaged in a sub- contracting operation and Macatee employees were working on the job site at the time of the picketing. On a single occasion, picketing at one construction job (not involved in the instant proceeding) commenced 20 minutes before the workday started and continued for about 10 minutes after the workday began. When the Respondent discovered that Macatee was not working there that day the picketing was immediately discontinued. The picketing described above resulted in some in- stances in employees of contractors and subcontractors, other than Macatee, leaving the job.6 15. On July 23, 1958, the Association filed with the Board a charge 7 alleging that since on or about July 2, 1958, the Respondent had engaged in, or induced or en- couraged the employees of certain contractors (not involved in the instant proceed- ing) to engage in, a concerted work stoppage, an object thereof being to force or require these contractors to cease doing business with Macatee. Upon receipt of this charge, the Regional Director proceeded to investigate it, and after conclusion of the investigation on August 15, 1958, dismissed the charge for "insufficient evi- dence of violation." He so notified the Association and the Respondent. On or about September 10, 1958, the Association requested the General Counsel to review the Regional Director's dismissal of the charge. On December 31, 1958, the General Counsel notified the Association and the Respondent that he sustained the Regional Director's dismissal of the charge for "insufficient evidence of violations." 8 16. On or about January 7, 1959, Julian Capers, Jr., manager of the Association, wrote to the Respondent, on the Association's stationery, as follows: The General Counsel attacks the materiality of picketing at these construction sites. I find that the matter is relevant as part of the background, especially since the General Counsel erroneously states in his brief : "The Respondent waited until the 24th day of February, 1959, to picket construction sites." 7 Case No. 16-CC-SCE, of which I take official notice. 8 The General Counsel objects to any reference to Case No. 16-CC-86 as immaterial. I find that the cause is relevant as part of the background. However, I find merit in the objections of the General Counsel and the Association to the receipt in evidence of excerpts from the Association's brief in support of its request that the General Counsel review the Regional Director' s dismissal of the charge. DALLAS GENERAL DRIVERS,. WAREHOUSEMEN ETC. 705 LOCAL No. 745, DALLAS GENERAL DRIVERS, WAREHOUSEMEN, AND HELPERS, 1727 Young Street, Dallas, Texas. Re: Picketing of Macatee, Inc. at job sites where members of Dallas County Construction Employers Association are performing work under contract GENTLEMEN: We have been advised by letter dated December 31, 1958, and signed by Mr. Thomas J. Ryan, Special Assistant to the General Counsel of the National Labor Relations Board, that the General Counsel is refusing to issue a complaint on our charges filed against Teamsters Local 745, Case No. 16-CC-86. We are advised that, since on or before August 18, 1958, all employees of Macatee, Inc. have reported for work daily at Macatee's Bengal Street plant. Those employees who have not proceeded directly into the plant because of the picket line maintained by member of your Union, have been assembled directly across the street from the plant at points only 25 to 50 feet distant from the pickets. We feel sure that you have full knowledge that all of Macatee's em- ployees are reporting for work daily to its Bengal Street plant, as they have since before or on August 18, 1958, and that those employees who do not cross the picket line are assembled at points within full view of the signs carried by the members of your Union. If you do not know these to be true facts, you are hereby formally advised that all of Macatee's employees have been and are being so assembled at this permanent location. If there is any doubt that these are true facts, it is requested that you confirm such facts through Macatee, Inc. In view of the foregoing, and particularly since your Union has for some months publicized its dispute with Macatee to all of Macatee's employees through the picketing at its Bengal Street plant, as well as by other acts, it is requested that in the future, members of your Union do not picket Macatee, Inc. or its employees at or about the secondary job sites at which members of the DCCEA were performing work of a subcontract nature, or where a member of this or- ganization may be the general contractor. We trust that you will comply with the foregoing request. Yours very truly, (S) Julian Capers, Jr., JULIAN CAPERS, JR., Manager. This letter was the first notice to the Respondent that Macatee had instituted this practice for assembly of construction employees. Capers had first learned that Macatee had set up an assembly point on the vacant lot through the Association's attorney. In writing the letter, he had no specific authority to speak on Macatee's behalf. He sent a carbon copy of the letter to Macatee but received no communica- tion from Macatee in response. On January 13, 1959, Macatee wrote to the Respondent, on its letterhead, as follows: LOCAL 745, DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, 1727 Young Street, Dallas, Texas. GENTLEMEN: This will refer to letter dated January 7, 1959, from Julian Capers, Jr., manager of Dallas County Construction Employers' Association, Inc., to your union. This will advise you that since on or before August 18th, 1958, all of the employees of Macatee, Inc. have reported to work daily at Macatee's Bengal Street plant during working days. Any employees who have not proceeded directly into the plant have reported to a vacant lot which is directly across Bengal Street from the main office and gate of Macatee, Inc. This point of assembly enabled all of the men reporting to view and observe the pickets and signs carried by the pickets. Sincerely yours, MACATEE, INC., (S) Geo. P. Macatee, III. GEO. P. MACATEE, II1.9 n The Respondent objects to the materiality of the letters of January 7 and 13. I find no merit in this objection. 525543-60-vol. 12 4-4 6 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 27, 1959, the Respondent's attorney replied to Capers as follows: MR. JULIAN CAPERS, Jr., Manager, Dallas County Construction Employers' Association, Inc., 207 Thomas Building, Dallas, Texas. Re: Labor Dispute Between Macatee, Inc. and Dallas General Drivers, Warehousemen and Helpers Local 745 DEAR MR. CAPERS: Our client, Dallas General Drivers, Warehousemen and Helpers Local 745, has referred to us your letter of January 7, 1959. We have carefully examined the facts alleged in your letter, and we have advised our client that there has been no change in material circumstances requiring the union to conduct its picketing in any manner other than the manner in which it has been conducted in the past. It is the intention of the union to picket Macatee wherever that company is engaged in its primary business activity. As you well know, Macatee does not limit its primary business activity to its plant site on Bengal Street. The legality of the union's full program of picketing Macatee at other locations has been fully determined in NLRB Case No. 16- CC-86. The refusal to issue a complaint therein, and the subsequent refusal to grant the appeal from that decision must be interpreted as a legal decision on which the union may safely rely. You are mistaken in referring to secondary job sites for the reason that the union has not engaged in secondary picketing in the past nor does it intend to engage in secondary picketing in the future. All of its picketing has been and will be directed to Macatee and employees of Macatee. Picketing has not and will not be directed to employees of secondary employers. Yours very truly, MULLINAX, WELLS & MORRIS. On the same day, the Respondent's attorney responded to Macatee, in writing, that he was "not in agreement with either your facts or your conclusions contained in your letter [of January 13, 1959]." On February 3, 1959, the Association's attorney wrote to the Respondent's at- torney as follows: MR. CHARLES J. MORRIS, MULLINAX, WELLS & MORRIS, 1610 National Bankers Life Bldg., Commerce & Ervay Streets, Dallas 1, Texas. Re: Secondary picketing by Dallas General Drivers, Warehousemen and Helpers Local 745 DEAR MR. MORRIS: Mr. Julian Capers, Manager, Dallas County Construc- tion Employers' Association, Inc., has referred to us, as counsel for the Associa- tion, your letter of January 27, 1959, regarding picketing by members of Teamsters 745. It is our contention that, inasmuch as Macatee, Inc. has a primary place of business where all of its employees are assembled daily, and where the members of Teamsters 745 can and have for several months communicated any labor dispute they might have with Macatee, Inc. to its employees by picketing at such location, that any picketing at secondary construction projects where members of the DCCEA are performing work is secondary picketing proscribed by the Taft-Hartley Act. Our position is confirmed by numerous NLRB and Court decisions. Pursuant to the request made during our discussion of January 29, 1959, we are enclosing herewith a copy of the General Counsel's opinion in Case No. F-873, made public January 15, 1959. As is readily apparent from a recital of the facts therein, the Opinion was written on the basis of the charges filed in Case No. 16-CC-86, which charges were filed by Mr. Capers on behalf of the DCCEA. We have carefully studied the General Counsel's Opinion and inter- pret it to mean that the picketing occurring after Macatee, Inc., began assem- bling all of its employees daily at its Bengal Street plant was illegal secondary picketing. We further interpret the Opinion to state that the only reason that a complaint was not issued on the basis of such picketing was that -it was "iso- lated in nature." We interpret the Opinion to mean that in the event of any future picketing at common job sites where members of the DCCEA are per- forming work as primary or subcontractors, will be treated as illegal secondary DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 707 picketing. You are, accordingly, advised that in the event of any such future picketing, new unfair labor practice charges will be filed with the NLRB Regional Office in Fort Worth. We are advised by Macatee, Inc. that its policy and practice of requiring its construction employees to report to its Bengal Street plant for daily work assignments is permanent, and that such employees will, in the future, continue to report daily to its Bengal Street plant. If you have any doubt that this arrangement is permanent, it is requested that you confirm such fact with Macatee, Inc. Yours very truly, CLARK, REED & CLARK, (S) William L. Keller. WILLIAM L. KELLER.10 17. Bock, Russell, Gotham, Hogan, American, and other employers are, and at all material times have been, engaged in performing work or supplying materials as .general contractors or subcontractors or suppliers on the construction of a school at Richardson, Texas, herein called the Richardson project; and O'Rourke, LaDew, Crisp, and other employers, were engaged in performing work, or supplying mate- rials, as general contractors or subcontractors or suppliers, on the construction of an addition to a John Deere warehouse at Dallas, Texas, herein called the John Deere project. At the time of the picketing described below, the Respondent did not have knowledge of the identity of these contractors working on the jobs named herein. Macatee is and has been engaged as a subcontractor at both the Richardson and the John Deere projects. The Respondent began picketing at the Richardson project at approximately 8:15 a.m. on February 24, 1959. All Macatee employees and most of the employees of other contractors on the job site remained at work, although some employees of other contractors ceased working and left the job before noon. Picketing stopped that day at about 2 p.m. On February 25, picketing was resumed at approximately 8:15 a.m. By 12 noon three Macatee employees and all the nonsupervisory employees of other .employers had ceased work and left the job. The three Macatee employees who ceased work that day did not report to the Richardson project on February 26, having been reassigned to a different project. Picketing ceased that day at approxi- mately 2 p.m.11 On February 26, picketing resumed at about 8:15 a.m. All Macatee employees on this project that day continued working, and the pickets were removed at about 11 a.m.; they then proceeded to the John Deere site, where they met other pickets. Picketing at the John Deere site commenced shortly after its ,cessation at the Richardson project. On that day, the Macatee employees on the Richardson project finished out their day's work, but thereafter did not return there.12 At that point the job was substantially complete and no other firm was hired to do the work. On February 26 and 27, 1959, the Respondent picketed on the east side of Harry Hines Boulevard in the vicinity of the John Deere construction site. The construc- tion was being performed at the northernmost end of the property and consisted of an approximately 200-foot extension to the John Deere warehouse. The closest paved access to the construction site was by means of an entrance on Harry Hines Boulevard, herein called entrance A. There is also an entrance to the John Deere property, herein called entrance B, where Harry Hines Boulevard intersects John Deere Road, a private road. Entrance to the construction site was also made by crossing a ditch on the east side of Harry Hines Boulevard approximately 50 or 60 feet north of entrance A, herein called entrance X. Macatee employees used 10 The General Counsel and the Respondent object to this letter as immaterial. I find the letter material. FIowever, I deem the enclosure-General Counsel's Opinion in Case No. F-873-immaterial, it has not been shown to be related to any of the conduct de- scribed as herein. n The General Counsel's brief states : "picketing at the Richardson project was con- ducted only while secondary employees remained on the job working. The Respondent ceased picketing when secondary employees ceased work. The primary employees re- mained on the job and worked but the Respondent did not continue to picket the project." This is not my understanding of the stipulation in which the General Counsel joined. As I understand the stipulation, all employees of neutral employers had ceased work by noon, but the picketing nevertheless continued until 2 p.m. ' The General Counsel and the Respondent stipulated that "Macatee was told by the general contractor on the job not to return." The Respondent objects to this fact as immaterial. I agree, and therefore make no such finding. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entrances A and X but on one occasion observed by the pickets, a Macatee truck- driver used entrance B. This driver saw the picket there. Neither the Respondent nor any of the pickets were ever advised that any particular entrance or entrances. had been designated for the exclusive use of Macatee or,the construction employees. A picket was stationed at each of the entrances mentioned above, and each of the three patrolled half of the distance to the next picket, thereby picketing the entire length of the John Deere property facing on Harry Hines Boulevard for approxi- mately 1,007 feet. There is also an entrance to the John Deere property at the intersection of Denton. Road and John Deere Road. No picketing took place at this point. Some employees of each of the following trucking companies, Brown Express,. T & P Motor Transport, S. P. Motor Transport, E. Texas Motor Freight, Miller &. Miller Motor Freight, Santa Fe Trail Corporation, and South Western Freight, refused to pick up and make deliveries at John Deere during the time that the Respondent picketed at John Deere. Some eniployei^s of trucking companies made deliveries and pickups during the picketing at John Deere. On February 27, 1959, before the completion of the workday, Macatee em- ployees left the John Deere construction site.13 They returned to the John Deere project on March 26, 1959, and resumed working on the project. In addition to the foregoing incidents of picketing adjacent to the Richardson. and John Deere projects, on or about the following dates, the Respondent picketed on public property immediately adjacent to the following construction projects. (all within the Dallas metropolitan area) on which Macatee employees and em- ployees of other employers were performing construction work: Exchange Park: On March 3, 1959, Macatee employees left within 2 hours after picketing began and some employees of neutral employers ceased work but did not leave the job site. Picketing ceased immediately upon Macatee's leaving the job' site.'' Macatee did not complete the job. Reserve Life Insurance Company: On March 6, 1959, pickets remained approxi- mately 1 hour; some neutrals ceased work. Picketing ceased immediately upon, Macatee's leaving the job site." DuBoise, Highway 75: On March 9, 1959, the Respondent picketed for 2 hours; Macatee left and so did the pickets immediately thereafter. All neutral employees. ceased working while pickets were present. On March 16, 1959, the Respondent again picketed for 20 minutes; all neutral employees stopped work while pickets. were present; Macatee left the job and picketing immediately ceased.'6 Great Southwest Corporation: On March 13, 1959, the Respondent picketed from noon to 4:30 p.m. No employees of Macatee or of neutral employees [sic] left the job or stopped work. On March 18, 1959, the Respondent again picketed all day; no employees of neutral employers or of Macatee left the job or stopped work. On each of the above days, when picketing occurred, there were approximately 39 Macatee employees working in the bargaining unit represented by the Respondent, and on each of these same days there were approximately 78 Macatee construction employees working in the Dallas area on construction projects. In each instance of picketing by the Respondent at construction projects, the picketing was limited to, times and places when Macatee employees were performing construction work. The construction sites described above were among several locations at which Macatee conducted its normal business activity, consisting of Macatee construction division employees installing materials and performing services where Macatee was a con- tractor, generally on a subcontractor basis, on the construction sites. The legend on the picket signs carried by the pickets for the Respondent at all construction projects read as set forth in paragraph 14 below. 17 "The stipulation referred to above relates that they did so at John Deere's request.. I agree with the contention of the Respondent that this conduct of John Deere is im- material and no finding will be based thereon. 1+The stipulation described above states that this was at the general contractor's re- quest. I agree with the Respondent that this conduct of the general contractor is immaterial. 15The stipulation mentioned above relates that this was at the request of the general contractor on the job. I agree with the Respondent's contention that the conduct of the general contractor in this respect is immaterial. 10 The stipulation mentioned above relates that both times Macatee left, it did so at the request of the general contractor on the job. I agree with the Respondent' s contention that the conduct of the general contractor in this respect is immaterial. 17 At the John Deere project, the words "MACATEE" and "ON STRIKE" were in red lettering, and all other words were in black lettering. DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 709 18. On February 25, 1959, the Association filed the charge in the instant case. On February 28, -1959, the Respondent prepared and inserted in the Dallas Morning News the following advertisement: LEGAL NOTICE In the Matter of DALLAS GENERAL DRIVERS, WAREHOUSEMEN 1 Case No. AND HELPERS, LOCAL UNION NO. 745, 16-CC-91 BEFORE THE NATIONAL LABOR RELATIONS BOARD NOTICE TO ALL PARTIES AND PERSONS INTERESTED IN THE ABOVE ENTITLED AND NUMBERED PROCEEDING PENDING BE- FORE THE NATIONAL LABOR RELATIONS BOARD: The above union, Teamsters Local No. 745, has been served with a charge alleging inducement and encouragement of employees of various contractors to engage in a concerted refusal to perform services, an object being to force these contractors to cease doing business with Macatee, Inc. This charge pre- sumably relates to picketing of Macatee, Inc. at a school project in Richardson, Texas, and picketing which may occur at other projects where Macatee, Inc. is engaged in sub-contracting. Said union hereby advises all interested parties that its dispute is solely with Macatee, Inc. in connection with a lawful strike which has been in progress for approximately nine months by Macatee drivers and warehousemen and their certified bargaining agent, Local 745. Said labor dispute is legal and relates to wages and working conditions which said union desires to have guaranteed by contract. No jurisdictional dispute among different unions is involved in any manner. Similar picketing has heretofore been declared legal by the General Counsel of the National Labor Relations Board in Case No. 16-CC-86. We hereby advise that picketing of Macatee, Inc. at various construction sites where it is engaged in work under contract has exactly the same purpose as picketing at the Macatee premises at 4703 Bengal Street. The picketing is directed at Macatee and its employees only. We urge every individual Macatee employee to cease work in support of our strike. This notice is issued to conform to notice requirements of the National Labor Relations Board, pursuant to Section 8(b)(4) of the Labor Manage- ment Relations Act of 1947, as amended. DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL No. 745, W. L. PILAND, Secretary-Treasurer, Business Manager. On March 6, 1959, the Dallas Craftsman carried the following release: TEAMSTERS LOCAL NO. 745 SAYS DISPUTE WITH MACATEE, INC. Upon being contacted officials of the Dallas General Drivers, Warehouse- men and Helpers' Local No. 745 made the following statement in connection with its dispute with Macatee, Inc. "The local has been served with a charge alleging inducement and encourage- ment of employees of various contractors to engage in a concerted refusal to perform services, an object being to force these contractors to cease doing business with Macatee, Inc. This charge presumably relates to picketing of Macatee, Inc., at a school project in Richardson, Texas, and picketing which may occur at other projects where Macatee, Inc., is engaged in sub-contracting. "Said union hereby advises all interested parties that its dispute is solely with Macatee, Inc., in connection with a lawful strike which has been in progress for approximately nine months by Macatee drivers and warehousemen and their certified bargaining agent, Local No. 745. Said labor dispute is legal and relates to wages and working conditions which said union desires to have guaran- teed by contract. No jurisdictional dispute among different unions is involved in any manner. Similar picketing has heretofore been declared legal by the General Counsel of the National Labor Relations Board in Case No. 16-CC-86. "We hereby advise that picketing of Macatee, Inc., at various construction sites where it is engaged in work under contract has exactly the same purpose as picketing at the Macatee premises at 4703 Bengal street. The picketing is 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directed at Macatee and its employees only. We urge every individual Macatee employee to cease work in support of our strike." 18 19. On March 25, 1959, at the request of the Regional Director and pursuant to, Section 10(1) of the Act, the Honorable T. Whitefield Davidson, United States District Judge, enjoined the Respondent, pending the final disposition of the instant case by the Board, from picketing job sites on which Macatee's employees are work- ing, or inducing or encouraging employees of neutral employers to cease work with an object of forcing or requiring any employer or person to cease doing business with Macatee. Judge Davidson added: "The court finds and feels that this comes within the priority provisions of the law and would urge speedy action on final dis- position by any board or court acting upon the same." is 20. On April 6, 7, 8, and 9, 1959, mimeograph forms were distributed to super- visors and rank-and-file construction employees of Macatee, which read as follows: STATE OF TEXAS, County of Dallas, My name is --------------------------------, and I am employed by Macatee, Inc., as a ------------------------------- Since August, 1958, on ------------------------------ occasions I have reported directly to job sites in the morning instead of reporting to Macatee, Inc.'s plant on Bengal Street. I know that Macatee, Inc. issued instructions to all its Construction Depart- ment employees in approximately August 1958, to report daily for work assign- ments to its Bengal Street plant. In reporting directly to job sites in the morning, I did so without the permis- sion of Macatee management officials. With the exception of the occasions noted when I reported directly to the job site, I have regularly reported daily for job assignments to Macatee, Inc.'s plant, or the lot across the street, or within a few feet of the picket line at the North end of Macatee, Inc.'s property. On each occasion that I have reported to work at Macatee, Inc.'s plant on Bengal Street, I have seen the pickets and the signs carried by them. The above statements are true and correct, and are voluntarily given by me. Signed April ----------- 1959. Witness: ------------------------------ This investigation disclosed 225 individual instances since August 1958, in which employees reported directly to job sites without first reporting to Macatee's plant on Bengal Street. The employees were asked to read the statement carefully before they signed. Each statement was witnessed by a Macatee supervisor or foreman. Between August 1958 and April 9, 1959, there were 175 normal workdays when Macatee construction employees worked. Approximately one-third of the con- struction employees worked on the average of 1 day on one-third of the weekends during that period. In the event of inclement weather, the employees in the roofing and deck depart- ments do not always work or work may be performed with reduced crews. Only on rare occasions has the weather caused complete cessation of work in the roofing and deck departments. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW A. Jurisdiction of the Board In view of the allegations of the complaint and the evidence that , at all material times, the Respondent was engaged in a dispute with Macatee, but was not engaged in any dispute with any other employer named in the complaint , it is clear that 18 The Association objects to the legal notice inserted in the Dallas Morning News and the release carried in the Dallas Craftsman as immaterial and self-serving. I find the documents material, especially as the Association states In its brief that the Respondent "has made no effort whatsoever to mitigate the effects of Its picketing activities at con- struction sites where the employees of secondary employers have abandoned their work." However, in evaluating these documents, I have taken Into consideration their self-serving nature, and the fact that they were published after the filine of the charge herein. 19 Elliott v. Dallas General Drivers, etc., Civil No. 8137, United States District Court, Northern District of Texas, Dallas Division. DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 711 Macatee is the primary employer. •Moreover, Macatee's operations are sufficient to meet the Board's jurisdictional tests applicable to such enterprises. Furthermore, the Board has found that Macatee is engaged in commerce within the meaning of the Act 20 It is accordingly found that Macatee is, and at all material times has been, engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding. More- over the Respondent admits, and it is found, that the Respondent's acts and conduct set forth above, occurring in connection with the operations of Macatee, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States. B. The Respondent's affirmative defenses The Respondent in its answer and in its brief contends that it relied upon the action of the Regional Director and General Counsel in dismissing the charge in Case No. 16-CC-86. It accordingly pleads as affirmative defenses that the General Counsel "is estopped to proceed with the instant action" and that his ruling in Case No. 16-CC-86 "constitutes res judicata and the law of the case." I find no merit in these contentions. Assuming, without deciding, that the facts then before the General Counsel are identical with the facts herein, the principles of res judicata and estoppel do not apply to an administrative determination (as distinguished from an ajudication) of an administrative agency.21 Moreover, the General Counsel (and the Regional Director as his agent) is a statutory officer whose primary func- tion is to investigate charges and prosecute cases before the Board. The task of making binding interpretations of the meaning of the Act is a judicial function, vested in the Board Members with ultimate power of review in the courts.22 Ac- cordingly, the Respondent's affirmative defenses are rejected. C. The merits-Contentions of the parties The General Counsel contends that the Respondent's picketing since February 24, 1959, of various job sites at which Macatee's construction employees were working was directed, at least in part, at employees of neutral employers working on these projects. In support of this contention, the General Counsel points to the fact that, before such picketing began, the Respondent had been put on notice that Macatee's employees could be reached at Macatee's Bengal Street location. While admitting that all of Macatee's construction employees did not always report at Macatee's premises before proceeding to the job sites, the General Counsel argues that the exceptions "amount to less than 5%" and were "de minimus." Accordingly, the General Counsel urges that the principle of the Moore Dry Dock case 23 does not apply, but that the principle laid down by the Board in the Washington Coca Cola case 24 is applicable, namely, that as the employees of the primary employer could be effectively reached at the primary employer's premises, picketing at the secondary employers' premises is proscribed. The Association's position is essentially the same. Conversely, the Respondent insists that the picketing at the job sites was directed solely at Macatee's employees, as shown by the fact that the criteria for legal picket- ing set forth in Moore Dry Dock were met. It argues that it had no "adequate opportunity" to reach all of Macatee's employees at Macatee's premises, because 10 to 15 Macatee employees out of 35 in the accoustical tile flooring departments reported directly to the job sites each day. Hence, urges the Respondent, the Wash- ington Coca Cola rule does not apply, and picketing at the job sites is permissible. D. The merits-Discussion and conclusions In the Otis Massey case,25 the union represented truckdrivers and warehouse- men employed by a firm which distributed and installed insulation and other ma- terials. It also employed various groups of craftsmen, represented in collective 20 Macatee, In c., Case No. 16-RC-1912, Decision and Direction of Election issued September 7, 1956 (unpublished). 21 N.L.R.B. v. Baltimore Transit Company, et at., 140 F. 2d 51, 54-55 (C.A. 4), cert. denied 321 U.S. 795. 22 West Texas Utilities Company, Inc., 85 NLRB 1396, 1398-1399, enfd . 184 F. 2d 233 (C.A., D.C.), cert. denied 341 U.S. 939. 22 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547. 24 Brewery and Beverage Drivers and Workers , etc. (Washington Coca Cola Bottling Works, Inc.), 107 NLRB 299, enfd . 220 F. 2d 380 (C.A., D.C.). 25 General Drivers, Warehousemen and Helpers, etc. (Otis Massey Company, Ltd.), 109 NLRB 275, enforcement denied 225 F. 2d 205 ( C.A. 5), cert denied 350 U . S. 914. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining by their particular craft unions. A dispute arose between the union and employer as to the terms of a collective- bargaining contract covering the truck- drivers and warehousemen, in furtherance of which the union called a strike of the truckdrivers and warehousemen and picketed the employer's warehouse. Simul- taneously, the union picketed various construction projects in the same city where the primary employer was making installations as a subcontractor and where em- ployees of other employers were also working. The union had no dispute with any of the other employers whose employees were working on the projects. In finding that the picketing of the projects violated Section 8(b) (4) (A) of the Act, the Board stated: ... the Union contends that its conduct 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 employees can be considered pri- mary 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 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 situs of the Union's dispute with Otis Massey was the Otis Massey warehouse, and that the Union could adequately publicize that dispute by limiting its picketing activities to that location .6 3 Supra, footnote 2. 4 Compare, Stover Steel Service, 108 NLRB 1575. 5 Moore Dry Dock, supra, at page 549. 9 See Washington Coca-Cola Bottling Works, Inc., 107 NLRB 299. Except for one factor discussed below, the relevant facts of the instant case are essentially the same as the relevant facts in Otis Massey. Thus here, as in Otis Mas- sey, the union represented the truckdrivers and warehousemen employed by a con- struction firm, the construction employees of the primary employer being represented by other unions; here, as in Otis Massey, the dispute concerned only the truckdrivers and warehousemen; here, as in Otis Massey, the truckdrivers and warehousemen struck and picketed the primary employer's warehouse; here, as in Otis Massey, the union had no dispute with any other employer; here, as in Otis Massey, the truck- drivers and warehousemen were present on the primary employer's premises and within sight of the primary picket line numerous times daily; here, as in Otis Massey, the union sought, but was denied, permission to picket inside the premises of the neutral employers close to the work stations of the construction employees; here, as in Otis Massey, the union picketed public roads adjacent to job sites in the same city, where the primary employer's construction employees were working and where em- ployees of neutral employers were also working; here, as in Otis Massey, the picket signs at the job sites identified the picketing as being directed only at the primary em- ployer and the union took other steps to publicize this fact; here, as in Otis Massey, the picketing of the job sites took place only while the employees of the primary employer were working there; here, as in Otis Massey, the picketing of the job sites resulted in work stoppages by employees of neutral employers working there; and here, as in Otis Massey, except on one or two occasions, no truckdrivers or ware- housemen of the primary employer were on or near the job sites when the job sites were picketed. There is one factual difference between Otis Massey and the instant case: In Otis Massey the primary employer's construction employees "almost never came" to the primary employee's warehouse, while in the instant case, since mid-August at least a substantial majority of the primary employer's construction employees have reported to the primary employer's warehouse daily in the mornings before proceeding to the job sites, and about half of them have reported back to the warehouse at the end of DALLAS GENERAL DRIVERS, WAREHOUSEMEN ETC. 713 the workday.26 But if the Board found that the picket lines at the job sites constituted a violation in Otis Massey when the construction employees seldom saw the primary picket line, the instant case-where at least a substantial majority of the construction employees saw the primary picket line daily-is surely a stronger case for finding such a violation. The Respondent relies heavily on the refusal of the United States Court of Appeals for the Fifth Circuit to enforce the Board's order in Otis Massey.27 But a Trial Examiner may not indulge in speculation as to the continuing vitality of Board precedent after a Court of Appeals has disagreed with the Board. As a Trial Examiner, and with all due respect for the United States Court of Appeals for the Fifth Circuit, I must follow the Board's decision in Otis Massey unless or until the Board or the United States Supreme Court decides otherwise.28 The Board's decision in Otis Massey being dispositive of the major issue herein, the frequency of the reporting of Macatee's construction employees to Macatee's premises is not controlling. The important factors are that only the truckdrivers and warehousemen were involved in the dispute between the Respondent and Macatee, and that they could be reached by the Respondent at Macatee's premises. It is accordingly found, under the Otis Massey precedent, that the situs of the primary dis- pute was at Macatee's premises, where the Respondent could adequately publicize that dispute by limiting its picketing activities to that location. It follows that the picketing of the construction projects listed in Appendix C attached hereto was con- ducted, at least in part, to induce and encourage the employees of neutral employers, listed in Appendix B attached hereto, to engage in a strike. One further matter remains to be considered. The complaint alleges that an object of this inducement and encouragement was "to force or require O'Rourke, Bock and/or other employers or persons, to cease doing business with Macatee." But the record does not indicate that either O'Rourke or Bock was a customer of, or otherwise did business with, Macatee. It is therefore apparent that the General Counsel has failed to prove that an object of the picketing was to force or require either O'Rourke or Bock to cease dealing with Macatee. However it is clear, and I find, that an ob- ject of the Respondent's picketing of the construction projects listed in Appendix C was to force or require the respective contractors, or other customers of Macatee en- gaged there, to cease dealing with Macatee. E. Recapitulation 1. Dallas General Drivers, Warehousemen and Helpers Local Union No. 745 is, and at all material times has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. 2. Macatee, Inc., is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The decision of the General Counsel to dismiss the charge in Case No. 16-CC-86 did not prevent him from issuing and prosecuting the complaint herein. 4. By engaging in, and inducing and encouraging the employees of employers listed in Appendix B attached hereto to engage in, a concerted refusal in the course of their employment to perform services for their respective employers, with an object of forcing or requiring general contractors of the projects listed in Appendix C attached hereto, or other customers of Macatee, Inc., to cease doing business with Macatee, Inc., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(A) of the Act. 5. The aforesaid unfair labor practices, occurring in connection with the operators of Macatee, 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, and therefore constitute unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 20 See Amarillo General Drivers, Warehousemen and Helpers Local Union No. 577, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Crowe-Gulde Cement Company), 122 NLRB 1275, footnote 2. 27 N.L.I/.B. v. General Drivers, Warehousemen and Helpers Local 968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 225 F. 2d 205 (C.A. 5), cert. denied 350 U.S. 914. 2° Insurance Agents' International Union, AFL-CIO (The Prudential Insurance Com- pany of America), 119 NLRB 768, 772-773; Novak Logging Company, 119 NLRB 1573, 1575-1576; and Scherrer and Davisson Logging Company, 119 NLRB 1587, 1589. 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The General Counsel has failed to prove by a fair preponderance of the evi- dence that an object of the above-described inducement and encouragement was to force or require either O'Rourke Construction Company or Bock Construction Com- pany to cease doing business with Macatee, Inc. [Recommendations omitted from publication.] Bock Construction Company Wm. H. LaDew Company O'Rourke Construction Company Russell Plumbing Company Richardson school project John Deere project Exchange Park project APPENDIX B Ed Hogan, d/b/a Hogan Plastering Contractor American Roofing Company Gotham Electric Company Crisp & Vaughn APPENDIX C Reserve Life Insurance project DuBoise, Highway 75 project Great Southwest Corporation project Rhodes, Inc. and Local Union 991, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Ind., Petitioner. Cases Nos. 15-RC-1968 and 15-RC-1974.' August 25, 1959 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 John H. Immel, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent warehouse employees at the Employer's five retail furniture stores located in the Pensacola, Flori- da, area of the Employer's operations, excluding salesmen, collectors, and office clerical employees. 1 A consolidated hearing in Cases Nos. 15-RC-1968 and 15-RC-1974 was conducted on May 12, 1959 , at Pensacola, Florida. On May 28, 1959, Petitioner filed a request for withdrawal of its petition in Case No. 15-RC-1974. As we have been administratively advised that the Petitioner has taken no action inconsistent with its withdrawal request, and, as the Employer poses no objection thereto in its brief, the request for withdrawal is Thereby granted. Subsequent reference herein to a petition are to the petition in Case No. 15-RC-1968. 124 NLRB No. 96.