Int'l Brotherhood of Teamsters, Chauffeurs, etc.

'916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO, and Local 179, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , AFL-CIO, and John T. O'Brien, David Sark, Thomas Floyd and Elrie Floyd, Their Agents and Alexander Warehouse & Sales Company, Charg- ing Party. Case No. 13-CC-147. August 25,1960 DECISION AND ORDER On April 18, 1958, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices as alleged in the complaint and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel, the Charging Party and the Respondents filed exceptions to the Intermediate Report with supporting briefs.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications : The facts are fully set forth in the Intermediate Report and may be summarized as follows : Alexander Warehouse & Sales Company, hereafter referred to as Alexander, is engaged in the purchase, sale, and distribution of coal, building materials, and building supplies at warehouses in Joliet, Peoria, and Urbana, Illinois. Alexander's operations are centrally controlled. At all times material herein, Re- spondent Local 179 represented Alexander's Joliet warehouse em- ployees and Alexander's Peoria and Urbana warehouse employees were unorganized. In support of bargaining demands made pursuant to wage reopening negotiations, Respondent Local 179 called a strike of the Joliet employees, and decided to picket all three warehouses. Accordingly, the Joliet employees divided into three groups, each group picketing at one of the warehouses. Prior to the establish- ment of picket lines at Peoria and Urbana the pickets contacted one employee at each of those warehouses, informed him of the strike, and told him that they would like to have the employees in the warehouse join with them. All employees at each warehouse were 'The motions of the Respondents and the Charging Party that the Board grant oral argument are hereby denied, as the record and the briefs adequately reflect the issues and positions of the parties. 128 NLRB No. 105. INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 917 informed of the request by the employee thus contacted, and all de- clined to join the strikers. Whereupon Respondents established the picket lines. The picketing was carried on during the hours the warehouses were open for business. Usually one picket, but sometimes two pickets were stationed at the entrances to the warehouse, which entrances were used by Alexander's employees and by employees of Alexander's cus- tomers and suppliers as they came to pickup or deliver supplies and materials. The pickets carried signs which read "ON STRIKE TEAMSTER'S LOCAL 179." The pickets made no oral appeals to Alexander's employees. However, when a truck approached the picket lines, a picket would wave the sign and engage truckdrivers in conversation, appealing to them to observe the picket lines, and in some cases threatening to stop their employer's trucks, or to turn their employer's name in to the union. Many truckdrivers refused to go through the picket lines, some without talking to the pickets and others after talking to the pickets. Some drivers went through the picket lines and picked up materials. On at least two occasions, drivers who went through the picket line were followed as they left Alexander's premises by agents of Respondents, who had been sitting in parked cars near the warehouse entrances. In one such incident, Olson, manager of Conklin Lumber Company in Peoria, was followed to his yard by Raymond Crase, temporary recording secretary of Respondent Local 179. In the presence of two Conklin employees, Crase told Olson that Alexander was on strike and that he was going to have the yard shut down if Olson did not bring the material back, or if any employee touched the material. In another such incident, Respondent Elrie Floyd followed truckdriver Hamrick as he left the Urbana warehouse. Floyd followed Hamrick for about 10 miles and when Hamrick stopped to reset his load Floyd asked him if he was "union." Hamrick replied that some of the boys were and some were not. Floyd then told him to tell his boss that "we are picketing the Urbana warehouse and he [his boss] would know what to do." The pickets' tactics were largely successful.2 Prior to the strike approximately 40 to 50 customer pickups were made each day at the Peoria and Urbana warehouse. The foregoing conduct reduced such pickups to approximately a third of that number at Urbana and to approximately four to five a day at Peoria. In addition, Crase's con- duct at Conklin Lumber Company resulted in the return of the materials Olson had brought through the picket line, and Elrie 2 The picketing at Joliet was conducted in the same manner as the picketing at Peoria and Urbana, and was completely successful in inducing truckdriver employees of Alex- ander's customers and suppliers to refrain from making pickups or deliveries 577684-61-vol. 128-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Floyd1s appeal to Hamrick induced him to tell his boss "so that he would not send me back." The Trial Examiner found that the main thrust of Respondents' conduct at the Peoria and Urbana warehouses was directed toward Alexander's customers and suppliers, with the object of inducing their employees to engage in a concerted refusal in the course of their employment to use, transport, or otherwise handle or work on mate- rials or commodities destined to or from Alexander's warehouses, thus forcing or requiring a cessation of business between Alexander and its customers and suppliers. He concluded that the picketing at Peoria and Urbana would have been lawful, if Respondents had confined their activities to the picketed premises, but was unlawful because of the conduct away from the picket line, which "proved motivation and conduct going beyond permissible action." The General Counsel excepts to the finding that Respondents' con- duct would have been lawful if confined to the picket lines. He con- tends that such conduct was unlawful because its real object was the inducement of employees of Alexander's customers and suppliers, and there was an absence of conduct directed toward Alexander's own employees. He concedes that the picketing at Joliet, "the situs of the dispute," was lawful, and he disclaims any intent to have picketing away from the "situs of the dispute" held per se a violation of the Act. Respondents, concede that an object of the picketing at Peoria and Urbana was to induce all truckdriver employees of Alexander's cus- tomers and suppliers to refuse to cross the picket line, and that oral appeals for observance of the picket lines were directed only to such employees. It contends, however, that the picket lines were directed also to Alexander's own employees. Its basic defense is that all three of Alexander's warehouses constituted primary premises, and that it could lawfully picket at all three warehouses and appeal to all who approached the warehouses to refrain from crossing the picket lines. In disagreement with the Trial Examiner, we find that Respondents' picketing and related conduct at Alexander's Peoria and Urbana ware- houses was lawful primary activity. Though the economic dispute with Alexander directly involved only Alexander's Joliet employees, Respondents had the right to bring pressure upon Alexander at each and every one of its warehouses. The Peoria and Urbana warehouses are no more to be considered neutral premises for purposes of applying the provisions of Section 8(b) (4) (A) than are the premises of an employer who "allys" himself with a primary employer. Under the "ally" doctrine a union may engage in picketing at the operations of a primary employer and at all operations of employers who "ally" them- selves with the primary employer, under the same conditions as govern INT'L BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , ETC. 919 its picketing at the primary employer's premises.' That doctrine is based on legislative history which conclusively indicates that, though Section 8(b) (4) (A) was enacted to protect neutral employers not in- volved in a dispute between a union and another employer,' it was not intended to protect an "ally" who, in the words of Senator Taft, "is, in effect, in cahoots with or acting as part of the primary employer." 5 A fortiori if an "ally" is not sufficiently neutral to permit a distinction to be drawn between it and the primary employer for purposes of applying the secondary boycott provisions of the Act, Alexander's Peoria and Urbana warehouses cannot be regarded as premises of a neutral employer here. Those premises, together with the Joliet ware- house, are operated under common general supervision; their pur- chases are made by a central purchasing office; they participate in pooled shipments of supplies in order that Alexander my receive the benefits of lower freight charges; and there is some interchange of inventories between the three warehouses. Thus, the continued oper- ation of the Peoria and Urbana warehouses during Respondents' strike at the Joliet warehouse constituted, because of their proximity to, and integration with, the Joliet warehouse, a factor which con- ceivably could have been decisive in determining the outcome of the dispute, and Respondents could legitimately extend their picketing to those premises.6 Their conduct at those premises is to be judged by 3International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, et at. ( Adolph Coors Company ), 121 NLRB 271, 276; enforcement denied 272 F. 2d 817 (C.A. 10). ' See N L R B. v. Business Machine and Office Appliance Mechanics Conference Board, et at. (Royal Typewriter Co ), 228 F. 2d 553, 558, 559 (CA. 2) ; Douds v. Metropolitan Federation of Architects , Engineers, Chemists and Technicians, Local 291 (Project Engineering Company ), 75 F. Supp. 672 (D.C.N.Y.). 5 Congressional Record, vol. 93, p. 4198; Congressional Record, vol, 95, p. 8709. This principle has been applied where the "ally" relationship is based on the fact that one employer is performing struck work for the primary employer, Shepmen's Local Union No. 501 of the International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO (Oliver White Company, Inc.), 120 NLRB 856; where the "ally" relationship derives from "straight line operations" of two or more corporations, National Union of Marine Cooks and Stewards and its Portland Local, CIO, et at (Irwin-Lyons Lumber Company ), 87 NLRB 54; and in cases where two or more corporations con- stitute a single operation in fact, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at. (J. G. Roy and Sons Company), 118 NLRB 286; Member Rodgers dissenting on the finding that an "ally " relationship existed on the facts, but not on the principle that a properly founded "ally" relationship opens the "ally's" premises to all the pressures which the union lawfully could bring to bear at the primary employer's own premises. 9 See Local 618, Automotive, Petroleum and Allied Industrial Employees Union, AFL- CIO, et at. v. N.L.R B. (Incorporated Oil Co. ), 249 F. 2d 332 (C.A. 8), denying enforce- ment of a Board Order reported at 116 NLRB 1844; and N.L.R.B. v. General Drivers etc, Local 968, at at, (Otis Massey Co.), 225 F. 2d 205 (C.A. 5), denying enforcement of a Board Order reported at 109 NLRB 61. The Board itself has recognized this principle in two later cases. In Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 386, and General Teamsters Union, Local 431 (California Association of Employers), 120 NLRB 1161, where the Board, Member Fanning dissenting in part, found that certain "ambulatory " picketing of the primary employer's trucks was for an unlawful object, on the ground that the primary employer "had two permanent places of business . . . where Respondents could, and did, publicize their dispute. .. [Emphasis supplied.] In that case the respondents represented employees at only one of the permanent places of 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same principles as apply to their conduct at the Joliet warehouse, which the General Counsel concedes was not violative of the Act. Applying those principles, we find Respondents' picketing and oral appeals at Alexander's Peoria and Urbana premises constituted lawful primary action. In the first place, such conduct was not directed solely toward employees of Alexander's customers and suppliers. The picketing itself constituted an act of inducement or encouragement of Alexander's employees to engage in a concerted refusal to perform services for Alexander.7 For, as we have held, a picket line "neces- sarily invites employees to refrain from working behind it...." 8 The fact that the picketing was not successful in inducing such a work stoppage is not controlling. The significance of such conduct is that it necessarily invited Alexander's Peoria and Urbana em- ployees to make common cause with the striking Joliet employees .9 Secondly, Respondents' appeals to employees of Alexander's cus- tomers and suppliers, aimed as they were at inducing observance of a picket line at premises solely occupied by the primary employer, constituted a permissible form of primary activity. It has long been established that- [w] ithin the area of primary conduct a union may lawfully persuade all persons, including in this case, the employees of [Alexander's customers and suppliers] to cease doing business with the struck employer.'a We therefore find that Respondents picketing at Alexander's Peoria and Urbana warehouses, and its oral appeals to employees of Alex- ander's customers and suppliers to observe the picket lines, like their similar conduct at Alexander's Joliet warehouse, constituted lawful primary activity. Finally, we cannot accept the Trial Examiner's conclusion that Respondents' conduct in connection with the Olson and Hamrick incidents which took place at places remote from the picket line, rendered Respondents' otherwise lawful picket line conduct unlawful. business. In Retail Clerks International Association, AFL-CIO ( Montgomery Ward & Co., Incorporated ), 122 NLRB 1264, Board Member Rodgers not participating , adopted the Trial Examiner's statement that the secondary boycott provisions of Section 8(b) (4) (A) "do not isolate one store in the Company's chain from the other stores therein, nor do those provisions provide that economic pressure may be applied upon a primary employer only at the segment of his operations at which the immediate dispute arose " 7 Parkersburg Building & Construction Trades Council, AFL-CIO, et al. (Howard Price d/b/a Howard Price & Co.), 119 NLRB 1384, 1388. 8Laundry, Linen Supply & Dry Cleaning Drivers Local No. 928 et al. ( Southern Service Company, Ltd ), 118 NLRB 1435, 1437, and cases cited O Dallas General Drivers, Warehousemen & Helpers, Local No. 745, AFL-CIO (Asso- ciated Wholesale Grocery of Dallas, Inc ), 118 NLRB 1251, 1253 '5 International Brotherhood of Teamsters, Chauf eurs, Warehousemen and Helpers of America, Local 294 , A P. of L. ( Schultz Refrigerated Service, Inc.), 87 NLRB 502, and cases cited. INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 921 That the conduct involved in the Olson incident is unlawful is clear. There Respondents' agent, Crase, trailed Olson, manager of Conklin Lumber Yard, back to his yard, and demanded, in the presence of two Conklin employees, that Olson take the materials back, and threatened to shut down the yard if the materials were not taken back, or if any employees touched such materials. Such conduct constituted a clear and direct inducement of Conklin's employees concertedly to refuse to handle Alexander's materials, and was aimed at forcing a cessation of business between Conklin and Alexander at the Conklin premises.11 We therefore find that such conduct violated Section 8(b) (4) (A). Similarly, we believe that the Hamrick incident involved unlawful conduct. As in the Olson incident, Hamrick was trailed by an agent of Respondent. When Hamrick stopped his truck to reset his load, he was asked by such agent whether he was union, and when he answered that some of the boys were, he was directed to tell his em- ployer that Respondents were on strike at the Urbana warehouse and that his employer would know what to do. Hamrick did as he was told "so that his boss would not send [him] back." Thus this incident away from the primary picket line also induced action at a neutral employer's premises, action which was aimed at a cessation of business between the neutral employer and Alexander, originating at the neu- tral employer's premises, rather than at the picket line. This conduct had the same objective as the Olson incident, and was part of the same pattern of conduct. We therefore believe it immaterial that only one employee, Hamrick, was so induced, and we find that by this conduct also Respondent violated Section 8 (b) (4) (A)." We are unable to agree, however, with the Trial Examiner's con- clusion that such conduct proved motivation and thereby rendered the conduct at the primary picket line unlawful. The latter activity was aimed at inducing observance of a lawful primary picket line. The conduct away from the picket line went beyond that objective, and sought action at neutral employer's premises. But such conduct n This incident is distinguishable from the ones involved in International Wood Workers of America, Local 7-140, et al. (Firchau Bros. Logging Company), 115 NLRB 711, and Local Union No. 878 of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL (Arkansas Express, Inc.), 92 NLRB 255, relied on by Respondent, where the Board held that the fact that employees might have over- heard discussions between union agents and employers, was insufficient basis for finding unlawful inducement. za There is clearly no merit in Respondents' contention that this and the Olson incident merely involved appeals or invitations to employees to observe the picket lines at Alexander's warehouses, and are therefore permissible. These incidents sought action, as we have found, at the premises of neutral employers, not at Alexander's premises. We do not rely on a third incident, because the record does not connect the "trailer" (Baerrer) with Respondents . R. A. Emison, et al. d/b under the firm name and style of Santa Ana Lumber Company (Lumber and Sawmill, etc., Local Union No 1 4 07, et al. ), 87 NLRB 937, 941 `922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -did not change the character of the picket line activity.13 Accord- ingly, we shall dismiss the complaint insofar as it relates to the picket- ing at the Peoria and Urbana premises. THE REMEDY Having found that Respondents 14 violated the Act with respect to the conduct involved in the Olson and Hamrick incidents, we shall order them to cease and desist from such and similar conduct, and to post appropriate notices. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 179 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and John T. O'Brien, David Sark, Thomas Floyd and Elrie Floyd, their officers, representatives, agents, successors, and assigns shall: 1. Cease and desist from inducing or encouraging, at places other than the premises of Alexander Warehouse & Sales Company, the employees of Conklin Lumber Company and Cissna Park Co-op Lumber Company or any other employer who, as customer, supplier, carrier, or in any other manner, is doing business with Alexander Warehouse & Sales Company, to engage in a strike or a concerted refusal in the course of their employment at places other than the premises of Alexander Warehouse & Sales Company to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, or commodities, or to perform any services for their respective employers, where an object is to force or require any employer or per- son to cease doing business with Alexander Warehouse & Sales Company. 2. Take the following affirmative action which we find will effectuate the policies of the Act : (a) Post at the respective business offices of International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, and of its Local 179, copies of the notice attached hereto marked '$Were the result otherwise, Respondents picketing at Joliet warehouse, which all parties concede was lawful primary picketing , and which was engaged in for the same objective as was the picketing at Urbana and Peoria , namely to induce employees of cus- tomers and suppliers of that warehouse to cease making deliveries or pickups, would logically also be prohibited by the Act. 1* We find no merit in Respondent International 's contention that it should not be found responsible for Respondents ' unlawful conduct, as found herein. Nor do we find any merit in Respondents' exceptions to the Trial Examiner's finding that Respondents Elrie and Thomas Floyd were at all times material herein, agents of Respondents Local 179 and International , within the meaning of Section 8 ( b) of the Act. INT'L BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, ETC. 923 "Appendix." 15 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being duly signed by official representatives of the Respondents and each of the individual Re- spondents, shall be posted by the International and Local 179 imme- diately upon receipt thereof and maintained by them for a period of 60 days thereafter in conspicuous places, including all places where notices to members of each of the Respondent Labor organizations are customarily posted. Reasonable steps shall be taken by these Respondents to insure that such notices are not altered, defaced, or covered by any other material. The Respondents and each of them shall also sign copies of the notice which the said Regional Director shall make available for posting at premises where employees of Alexander Warehouse & Sales Company, Conklin Lumber Company and Cissna Park Co-op Lumber Company are employed. (b) Notify the said Regional Director, in writing, within 10 days of the date of this Order, what steps the Respondents have taken in compliance herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Respondents have violated the Act otherwise than herein found. MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision and Order. 15 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 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, we hereby give notice that: WE WILL NOT induce or encourage, at places other than the premises of Alexander Warehouse & Sales Company, the em- ployees of Conklin Lumber Company and Cissna Park Co-op Lumber Company or any other employer who, as customer, sup- plier, carrier, or in any other manner, is doing business with Alexander Warehouse & Sales Company to engage in a strike or concerted refusal in the course of their employment at places other than the premises of Alexander Warehouse & Sales Com- pany to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, or commodities, or to perform any services for their respective employers where an object is 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to force or require any employer or person to cease doing business with Alexander Warehouse & Sales Company. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) LOCAL 179, TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Dated---------------- By------------------------------------- JOHN T. O 'BRIEN , Co-Trustee Local 179 Dated---------------- By------------------------------------- DAVID SARK , Co-Trustee of Local 179 Dated---------------- By------------------------------------- THOMAS FLOYD, Acting President of Local 179 Dated---------------- By------------------------------------- ELRIE FLOYD, Acting Vice President of Local 179 This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136; 29 U.S.C. Sec. 151 et seq.), herein referred to as the Act. On June 24, 1957, Alexander Warehouse & Sales Company filed a charge with the Regional Director of the National Labor Relations Board for the Thirteenth Region against Local 179, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of North America, AFL-CIO, Thomas Floyd, presi- dent, Elrie Floyd, vice president, and agents of said Local; John T. O'Brien and David O. Sark, Trustee and Co-Trustees, respectively of Local 179, I.B.T.C.W. and H. of A., AFL-CIO; and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of North America, AFL-CIO,' and its agents in which it was asserted that: On and after June 17, 1957, the above named labor organization and its above named agents, by their officers and agents have engaged in and/or induced and encouraged employees of various employers to engage in a strike and concerted refusal, in the course of their employment, to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, ma- terials, or commodities or to perform any service with an object thereof of forcing and/or requiring employers or other persons to cease using, selling, handling, transporting or otherwise dealing in the products of other producers, processors, or manufacturers, including the charging company, and/or to cease doing business with the charging employer. .. . 1 The December 1957 convention of AFL-CIO adopted a resolution effecting the expul- sion of the International and its affiliated and subordinate organizations from AFL-CIO. INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 925 in contravention of Section 8(b), subsection 4(A) of the Act. Thereafter, on August 13, 1957, the General Counsel of the National Labor Relations Board, by the Regional Director for the Thirteenth Region, issued the complaint which com- menced this proceeding? The complaint, sufficient on its face, alleges violations of Section 81(b), subsection 4(A) of the Act 3 by Local 179 and the International, and their agents. The Respondents filed timely answer which effectively denies violations of the Act, as alleged in the complaint. On the issues raised by complaint and answer, this matter came on to be heard, pursuant to notice, before the duly designated Trial Examiner, at Peoria, Illinois, on September 10, 1957. At the hearing, all parties appeared and each was repre- sented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues, to argue orally upon the record, to file proposed findings of fact and conclusions of law, and to the file briefs, was afforded each party. Oral argument was heard by the Trial Examiner at Washington, D.C., on November 5, 1957. Briefs were filed on behalf of each party. At the hearing on September 10, 1957, it was stipulated by and between counsel for the parties that the transcript and record of proceedings in Madden v. Inter- national Brotherhood of Teamsters etc., et al., United States District Court for the Southern District of Illinois, Northern Division, Civil Action P-2015, before Charles G. Briggle, District Judge, August 7, 1957, be received in evidence herein and made a part of this record, and that the testimony of witnesses beard by Judge Briggle "will have the same effect as if the witnesses had been called and so testified." 4 Upon the entire record of the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF ALEXANDER WAREHOUSE & SALES COMPANY Alexander Warehouse & Sales Company, a Delaware corporation, is engaged at Chicago, Aurora, Joilet, Urbana, and Peoria, Illinois, in the purchase, sale, and distribution of coal, building materials, and building supplies. In the course and conduct of its business during the year preceding the filing of the complaint herein, the Company purchased and caused to be shipped to warehouses maintained g Alexander Warehouse & Sales Company, the Charging Party, may be referred to as the Company, Alexander, or the Employer ; Local 179 as Local 179 or the Union ; Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of North America as the International or the Teamsters ; the General Counsel of the National Labor Relations Board or his counsel as the General Counsel, and the Regional Director for the Thirteenth Region as the Regional Director. The National Labor Relations Board is called the Board. 3 SEC. 8: (b) It shall be an unfair labor practice for a labor organization or its agents- ( 6 R t i R i (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is : (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, . . . * Madden v. International Brotherhood of Teamsters etc., et al, was a proceeding for an Injunction pursuant to Section 10(1) of the Act. Judge Briggle caused an order to be entered on August 7, 1957, enjoining and restraining the Respondents therein (the Respondents here) from taking certain actions in violation of Section 8(b) (4) (A) of the Act "pending the final disposition of the National Labor Relations Board with respect to the matters herein. . . The acts complained of by the General Counsel said to con- stitute violations of Section 8(b) (4) (A) of the Act flow from the activities of the Re- spondents as reflected in the testimony taken by Judge Briggle. Here, the Trial Examiner has not had the benefit of observation of any witness other than Ivan McClatchie, vice president and general manager of Alexander, mainly on the question of Alexander's business activities. The Trial Examiner finds, as set forth below, that the Board does have jurisdiction here. McClatchie gave other uncontradicted testimony regarding the operations of his company which the Trial Examiner has considered in the light of the whole record. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it at Joliet, Urbana, and Peoria, Illinois, building materials and building supplies valued at in excess of $2,000,000, directly from points and places outside the State of Illinois. The Company is, and at all times material to this proceeding has been, engaged in commerce and its activities affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. TILE LABOR ORGANIZATIONS AND AGENTS INVOLVED (a) The Respondent Local 179 and the Respondent International and each of them are, and at all times material to this proceeding have been, labor organizations within the meaning of Sections 2(5) and 8(b) of the Act. (b) During such times Respondents John T. O'Brien and David Sark have been and are cotrustees of Local 179, appointed by the International to take charge of and direct the affairs of Local 179. As such trustees, O'Brien and Sark have been and are agents of Local 179 and the International within the meaning of Sections 2(5) and 8(b) of the Act. (c) During such times, Respondents Thomas Floyd and Elrie Floyd have been and are temporary president and vice president, respectively, of Local 179, appointed as such by the cotrustees above named, to manage and direct the affairs of Local 179 on behalf of the cotrustees, and as such have been and are agents of Local 179 and the International within the meaning of Sections 2(5) and 8(b) of the Act. III. THE UNFAIR LABOR PRACTICES Operation of the Company Warehouses The Company operates warehouses at Joliet, Urbana, and Peoria, all in the State of Illinois. These separate locations lie in the shape of a rough triangle; from the Peoria warehouse to the Joliet warehouse is a distance of approximately 130 miles; from the Peoria warehouse to the Urbana warehouse is a distance of a little over 100 miles; from the Joliet warehouse to the Urbana warehouse is a distance of about 130 miles. The service or selling territory of each warehouse encompasses an area with an approximate radius of some 50 miles. Each warehouse is in charge of a manager who operates under only general supervision; each manager reports to Ivan McClatchie, vice president and general manager of the Company. He exercises general supervision of the three ware- houses from his office in Chicago. Supply of goods and materials for each warehouse is usually accomplished through the purchasing department of the Company, located in Chicago. If a warehouse is understocked its manager notifies the purchasing department, although in normal course the purchasing department, in Chicago keeps watch on stock conditions, and through its inventory control system plans for necessary stock to be on hand at a warehouse. Infrequently, one warehouse supplies another with a particular item. No ware- house supplies a customer of another warehouse by direct shipment although there may be some small overlap in the selling areas of the Joliet and Urbana selling areas and the Joliet and Peoria selling areas. Each warehouse, with these exceptions does its own business within its geographical area, customarily transacts business with customers who regularly use a local Alexander warehouse as a source from which they supply their own building contractors and other customers. The customers of the Alexander warehouses include many dealers who employ trucking employees to pick up, transport, and handle materials for delivery from a warehouse to a particular location within the area. For example, at the Urbana warehouse, dealer customers depend on that warehouse and use that warehouse to supply heavy materials to their contractors and other customers. A dealer accepts orders, in reliance upon his ability to call at the warehouse, nicks up his orders, and delivers them, by his own trucks, to particular jobs. All such dealers so rely upon orders to the warehouse to enable them to make prompt delivery, and relieve them of the necessity of carrying goods and materials in stock. The evidence herein shows that normally there would be about 50 pickups per day at the Urbana warehouse, and 40 to 50 daily pickups at the Peoria warehouse. The Company, to make deliveries from each warehouse directly to customers, has a contract trucker operating from each warehouse to cover the area. The Company has two selling prices-f o.b. at the warehouse for dealer pickups, and another schedule of prices for materials including delivery. A warehouse does not make deliveries by contract carrier into an area covered by another INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 927 warehouse.5 Normally each warehouse receives its supplies directly from source. However, some part of deliveries of building supplies and materials to each ware- house are made by pool cars or trucks, a shipping arrangement whereby part of a carload lot or truckload lot is delivered to one destination, with remainder of shipment going to one and possibly the second of the other warehouses. At Urbana, 15 to 20 deliveries per week normally would be received by truck and by rail; at Peoria, 5 to 8 truck or rail deliveries were, before June 17, 1957, when Local 179 went on the strike discussed below, received in normal course from sup- pliers. With respect to transfer of goods and materials between the different warehouses, it was stipulated at the hearing: That for the period April 1 through September 5, 1957, (a) Peoria warehouse stock received from Joliet warehouse stock amounted to $27,890 or 5.9 percent of Joliet's sales and 11.9 percent of Peoria's purchases; (b) Urbana warehouse stock received from Joliet warehouse stock amounted to $24,906, or 5.3 percent of Joliet's sales and 9.0 percent of Urbana's purchases; (c) Joliet warehouse stock received from Peoria warehouse stock amounted to $4,862, or 2.2 percent of Peoria sales. (d) Joliet warehouse stock received from Urbana warehouse stock amounted to $5,745, or 1.8 percent of Urbana sales. For the same period it is agreed that the total purchases of Alexander amounted to $2,385,000 and included 5,791 shipments. Of these, Alexander participated in 226 pool shipments amounting to $383,000 of which 13 shipments amounting to $41,500 involved two or more of the Company's warehouses. There were five pool shipments which the Joliet warehouse first received and from which either the Peoria or the Urbana warehouses received goods; there was one pool shipment which stopped first at the Peoria warehouse and then stopped at the Joliet warehouse; there were three pool shipments in which another firm or firms participated and the remainder of the shipments went to Peoria first and then to Joliet or Joliet and Urbana; there were three shipments which stopped first at Urbana and then stopped at Joliet alone, or Joliet and Peoria; and that there were no shipments in which other firms participated where the remainder of shipment went to the Urbana warehouse and then to the Joliet or Peoria warehouse, or both.6 The Labor Dispute at the Joliet Warehouse The Respondent, Local 179, at least since December 1, 1955, has been the bargain- ing representative of the Company's employees at its Joliet warehouse. Effective as of that date, a collective-bargaining agreement was entered into between the Company and Local 179 covering the employees of the warehouse, 10 in number, employed in a unit comprised of head checkers, checkers, warehousemen, and helpers. The agreement by its terms provided that it should remain in full effect until December 31, 1956, when sections of the agreement relating to wages, hours, a health and welfare plan, and other provisions "will be open for negotiations." Under this clause of the agreement, Local 179 requested a wage increase, a guaran- teed workweek of five 8-hour days, payment at time and one-half for work in excess of 8 hours per day, payment at time and one-half for work on Saturday, and a contribution of $2.75 per week per employee to a health and welfare plan. 5It is said on behalf of the Respondents that in the case of shipments to a customer by contract trucker, the service area of the Joliet warehouse could be serviced from the Peoria and Urbana warehouses if the Company were willing to have its contract truckers deliver within the Joliet selling area from either the Peoria or Urbana warehouse, and if the Company were willing to incur the added transportation expense This the Company, for obvious economic reasons, does not do Transportation costs of heavy materials, added to the selling prices of such materials, render the position of the Respondents in this respect untenable, unless it is conceded that the Company may be expected, as a matter of law, to undertake to supply its customers at loss to itself in a competitive market 6 Prior to the hearing herein, counsel for the Respondent had issued an application for subpena and subsequently a subpoena dances tecum was issued calling for statistical data with respect to various shipments of goods to and from the three several ware- houses ; at the hearing the stipulation above referred to was entered into and certain exhibits which were received intended to show the dollar volume resulting from orders and deliveries with respect to pool cars and trucks The value of these figures would seem to be only quantitive, not qualitive, on face of the whole context of the facts involved herein. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the Union made these demands, negotiations were entered into between the parties, but no agreement was reached. On May 5 7 a meeting was held between representatives of the Company, Local 179, and the Teamsters' Joint Council .8 At this meeting, the acting president of Local 179 testified, union representatives threatened then to recommend strike action; the Company's representative asserted that the Company had made its final offer and then, near the close of the meeting, a representative of the Joint Council stated to the Company that so long as the Company was not bargaining in good faith, and that while the union representa- tives were there for the purpose of avoiding a strike, it seemed that there was "only one alternative" and that was for them to report back to the Council and recommend strike sanction. On or about June 10, the Union decided to strike and about that time the 10 employees at the Joliet warehouse met, voted the strike, and at the same time decided which of them would picket the Joliet warehouse, which of them would picket the Peoria warehouse, and who would picket at the Urbana warehouse. It was decided that four of the employees should picket Joliet, three picket Peoria and the remaining three picket Urbana. The employees at Joliet struck on June 17, which resulted in a complete stoppage of operations at the Joliet warehouse. That warehouse sus- pended operations until the strike was terminated on about August 14.9 The collective agreement covering the employees at the Joliet warehouse, effec- tive December 1, 1955, by its terms was Ito remain in force until December 1, 1956, and all sections other than those related to wages, hours, and health and welfare were to remain in effect until December 31, 1957, and thereafter from year to year, unless written notice was given by either party at least 60 days prior to December 31 of any subsequent year of a desire to modify, revise, or amend the agreement. Activities of the Strikers on the Picket Lines At the beginning of the strike on June 17, three Joliet strikers under direction of the Respondent Thomas Floyd established a picket line at the Peoria warehouse; three other Joliet strikers under direction of the Respondent Elrie Floyd set up a picket line at the Urbana warehouse. The other four of the striking employees remained at the Joliet warehouse and picketed there. At Joliet, operations at the warehouse were suspended. At Peoria and Urbana, employees of Alexander con- tinued to work until the end of the strike on about August 14.10 The Respondents contend here that the facts show that before the commencement of picketing at the Peoria and Urbana warehouses employees from the Joliet ware- house tried to induce employees at Peoria and Urbana to join the strike. At Peoria, it appears that Thomas Floyd got in touch with the business agent of the Peoria local union of the Teamsters 11 and found out from him that an effort had been made to organize the employees at the Peoria warehouse, but that the effort had failed. Although Floyd said that the pickets at Peoria wanted to talk to the people inside in the hope that they would support the strike, it appears that no real determined effort was made at any time by Thomas Floyd or the other two pickets there to persuade the Peoria warehouse employees to support the strike or join the Union At Urbana, the same half-hearted efforts were made to induce the warehouse em- ployees there to join the strike and to join the Union. One part-time employee of Alexander was shown the collective-bargaining agreement between the Company and the Union covering the Joliet warehouse; this employee was noncommittal but said that he might join the Union. Another employee was approached, given a copy of the bargaining agreement and was asked to join the Union; this employee undertook to show the agreement to the other employees, in the warehouse, and 7 This and other dates, without year, are for the year 1957. s The Trial Examiner, on the basis of facts presented, makes no express finding con- cerning persons who made up the membership of the Joint Council, except that, the Respondents were represented Olt was stipulated at the hearing that the injunction entered by Judge Briggle on August 7 was followed by an agreement for a renewed labor contract between the Company and Local 179 on August 14, and that the strike ended on that day. iU The picket signs carried at each place read- ON -STRIKE TEAMSTERS LOCAL 179 n In the Peoria area, Local 627 of the Teamsters' Union held and now holds the juris- diction granted to it by the International. This Local had, it is said, attempted prior to the strike to persuade four eligible employees at the Peoria warehouse to become members of that Local, but were unsuccessful. INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 929 after about 15 or 20 minutes he returned to say that they were "not interested." Thereafter the pickets at each of the two warehouses at Peoria and Urbana made no other effort, that is direct effort, to organize the Company's employees at either place. Such persuasion as was exerted was solely through picketing and carrying of the picket sign.12 The General Counsel and the Charging Party strongly urge that the activities of the Respondents were directed, not toward the organization of the Company's em- ployees at Peoria and Urbana, but principally toward the discouragement of cus- tomers of the Company at these two places to do business with the Company. The facts sustain the contention. A number of incidents which occurred during the strike both at and away from the picket lines show that the Respondents intended and were largely successful in their attempt to induce employees of customers of the Company to refuse to handle the goods of Alexander and thus to force the customers of the Company to cease doing business with it. Thomas Floyd agreed that the constitution of the International provides for discipline of any action in violation thereof,13 and that it is an established principle that a union teamster should not cross a picket line made up of representatives of members of local unions of the International; he said that it was a purpose of the picket line to stop people from going into the Alexander premises; and that when drivers approached the picket line at Peoria they were waved down by the pickets, and that after they had stopped, the pickets told the drivers there was a strike on and requested them not to go through the picket line. He said further that he did not believe than any union drivers crossed the picket line.14 According to the uncontroverted testimony of the Peoria warehouse manager, there were, prior to the picketing, normally 40 to 50 customers' trucks which came to the plant daily, but that thereafter until Judge Briggle entered the injunction there were only 3 or 4 trucks calling at the plant each day. Customers' drivers upon observing the picketing usually would stop, turn around, and leave the premises. The manager testified that some drivers would go through the picket line; some of them would talk to the pickets and leave, while others talked to the pickets and came into the yard. After the picketing became generally known in Peoria, Peoria area drivers would not enter the warehouse. The situation at Urbana was about the same. Before picketing began there were normally some 50 dealer pickups daily; these pickups fell off until after picketing started about one-third of that number called at the warehouse. The manager of the Peoria warehouse overheard conversations between truck- drivers who called at that warehouse and Thomas Floyd: Floyd told one driver "that, him being a union man, he shouldn't cross the picket line"; Floyd told another driver that "we were on strike in the warehouse, and that he should not come into the warehouse and pick up materials"; he told another driver that if he was a driver he "wouldn't go through the line." Floyd testified that when a truck approached the premises "we held the picket sign up" hoping the driver would stop; if he did, the driver "generally asked me what was going on, and II told them we had a strike on. They wanted to know if they should go in, and I couldn't tell them if they should or shouldn't, but I told them we would appreciate their cooperation with us. Some- times they went through, and sometimes they turned around." At times when the truckdrivers crossed the picket line at Peoria, Thomas Floyd recorded the name or the license number of the truck. Sometimes he crossed the street from the Peoria warehouse to use a telephone. It was suggested that he telephoned the information to Local 627, the Peoria Teamsters Local, which he had first denied. It is not clear from the record that his denial stood while being pressed on the point-he remained silent after the first denial. However it seems unreasonable to assume that the recording of license numbers and owners' names of trucks was engaged in by Floyd for no purpose whatsoever. Robert Stewart, a Hunt Lumber Company truckdriver, said that in the latter part of June he went to the Peoria warehouse to transact business, was stopped by a picket, who asked Stewart not to go into the warehouse. The picket told Stewart that if he did go in "Counsel for the Respondents has written : "Following the establishment of picket lines at the Peoria and Urbana warehouses, the persuasion directed to the employees working within these warehouses was confined to the appeal Inherent in picketing itself " 'e Floyd's testimony is supported by article 18 of the constitution of the International. 14 At the hearing, counsel for the Respondents stated • "One purpose of the picket line established at the Peoria and Urbana warehouses was to have all truckdrivers who ap- proached the picket line not cross it and many truckdrivers did respect the picket line" Covey, an Urbana picket, said that after the first day when picketing started the purpose of the picketing was to appeal to truckdrivers not to enter the warehouse 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he would take the name of the company and report it to the Union, whereupon Stewart left the premises without picking up the merchandise he was sent to get. Running through the whole record of this case is the implication, not directly denied by the Respondents, that the International and locals of the Teamsters Union in the Joliet, Peoria, and Urbana areas were quite well organized, and that it became common knowledge among truckdrivers, including those employed by customers of Alexander, that the Joliet truckdrivers were on strike against the Company and that it would be inadvisable for customers of Alexander or truckdrivers employed by such customers, to patronize or call at an Alexander warehouse until such time as the strike should be settled. Indeed, it may be taken as a matter of common knowl- edge that a member of the Teamsters Union will not go through a picket line estab- lished by other Teamsters Union members without express permission. Other Activities of Strikers In support of the efforts of the Respondents to induce drivers of trucks of Alex- ander customers in the Urbana and Peoria areas not to handle or perform services in connection with the products and business of the Company, other than the picketing, union pickets followed customer trucks leaving these warehouses. During the early time of the strike and after June 17, several customers' trucks called at a warehouse for materials: A driver for the Conklin Lumber Company was sent to the Peoria warehouse to pick up an order of ceiling tile, arrived at that warehouse, saw the picket line and left without picking up the material. He telephoned one Olson, the Conklin manager, and informed him that the warehouse was on strike. According to Olson ". . . my employees could not cross the picket line," so he himself about a week later drove to the Peoria warehouse and picked up the material; as he left the premises Raymond Crase, recording secretary of Local 179, followed Olson to the Conklin yard and there engaged in conversation with two Conklin truckdrivers; during the course of the conversation Olson joined Crase and the two drivers and during the course of a subsequent conversation, Crase in the presence of the drivers told Olson that "you just picked up something at the Alexander warehouse," Olson said that he had, and then Crase said he was going to have the Conklin yard closed down if Olson did not take the material back. Olson, whose testimony is uncontradicted, said that Crase told him that the Alexander warehouse was on strike, that he had crossed the picket line, and therefore if any Teamster touched the material, he was going to close Conklin down. Crase said further that he was going to call Peoria Teamsters Local 627; thereafter Crase and Olson then drove in Crase's car to the office of one Gleason, a representative of Local 627, and discussed the situation with him; Crase told Gleason he was from the Joliet Teamsters Local and that Olson had taken material from the Alexander Peoria warehouse and that unless Olson took it back he was going to close down the Conklin yard. Gleason sup- ported Crase, who drove Olson back to the Conklin yard and sometime thereafter Olson himself returned the material to the Alexander warehouse. In late June, Hamrick, a truckdriver employed by the Cissna Park Co-op Lumber Company was sent to Alexander's Urbana warehouse to pick up material When Hamrick left the warehouse, he was followed by Elrie Floyd to the next town, a distance of some 10 miles. Hamrick stopped to adjust his load; Floyd stopped and asked him what Hamrick was doing at Alexander after closing time and also asked Hamrick whether he was a member of the Union. According to Hamrick he said some of the drivers were and some were not. After Hamrick had told Floyd where he was from, Floyd instructed him to tell the boss "we are picketing the Urbana warehouse," and that he would know what to do. Hamrick reported this to his employer and did not thereafter return to the warehouse. Again, shortly after the inception of the strike, an employee of the Quick Lumber Co., one Robert Quick, was sent to the Peoria warehouse to pick up material. When he left the warehouse he was followed by a person in an automobile; he proceeded to a paint company, a hardware company, and the Pittsburgh Plate Glass Company where he picked up materials The automobile continued to follow Quick from place to place until at the last stop the person following Quick engaged the latter in conversation, identifying himself by name, telling Quick that he had crossed a picket line and that "it is not good practice to cross picket lines." Other instances testified to at the hearing before the district court judge demon- strate the energy exerted by the Joliet pickets in an effort to persuade customers of the Company not to deal with Alexander at its Peoria and Urbana warehouses. The record shows that the Union through its representatives made express threats INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 931 to interfere with customers' operations if they continued to deal with Alexander at these locations . For example , an employee of the Siegle-Hunt Lumber Company, James Siegle, picked up materials at the Peoria warehouse. As he was leaving he was stopped by Thomas Floyd who informed him there was a strike there and requested Siegle, the driver, to take back the material , to which Siegle replied that it was necessary that his company have this material , that the warehouse was the only place it could get it and he could not take it back . Whereupon, Floyd threatened to stop the company 's trucks. Siegle told him "you'd better call our yard" and departed with his load.15 The Respondents were able to effectively prevent employees of suppliers and carriers not to furnish delivery service to the Urbana and Peoria warehouses plant. On and after June 17, the strikers attempted to stop and in most instances did stop every truck attempting to make deliveries to either of these locations and the drivers of those trucks refused to enter the warehouse . Examples testified to, un- contradicted on the record, include an incident on June 17, when at Urbana a supply truck was half unloaded at the time the pickets arrived and after they approached the truck, its driver pulled out and failed to complete unloading; on June 20, a truck from Jenkins & Key was bringing in a load of rubber road asphalt products, the driver was stopped at the Urbana picket line, and he thereafter turned around in the warehouse driveway and drove away; on the same day a Sonolite Company truck arrived at Urbana to deliver a load of insulation products, the driver stopped at the picket line and when the warehouse manager approached the driver and the picket and asked the driver if he would not come in and unload, both the driver and the picket stated that the driver could not cross the picket line. At the Urbana warehouse railroad siding, railroad crews, after observing the pickets, refused to cross the picket line to deliver rail shipments ; subsequently the Company received a written notice from the railroad that it could not deliver a certain shipment by reason of the picketing near the siding tracks. At Urbana, the warehouse man- ager testified, after the 10th or 15th of July, delivery trucks did not even attempt to enter the warehouse premises, that the management of Jenkins & Key, who were engaged in making pickups from other truckers and making local deliveries, in- formed the manager that he could not ask his men to cross the picket line because they might be penalized by the Union ; the warehouse manager was also informed by Hall Freight Lines that the company could not ask its employees, truckdrivers, to cross the picket line or "they would be kicked out of the Union." At the Peoria warehouse, the record shows, almost immediately after the picketing started a good many transportation company trucks destined to make deliveries to the warehouse did not unload and that about 2 or 3 weeks after the beginning of the strike, transportation trucks stopped coming to the warehouse. It having become common knowledge in Urbana and Peoria that the warehouses were being picketed, it became the practice of the trucking companies who had goods consigned to either warehouse to telephone and ask whether the pickets were still on line. Of significance are these facts from which may be inferred that Local 179 had obtained the full cooperation of Peoria Local 627 to prevent customers of Alexander from dealing with the Company in the usual course of business: Thomas Floyd testified that representatives of Local 627 had showed him where to picket in the beginning; it is stipulated that Raymond Crase, a representative of Local 179, obtained the assistance of Peoria Local 627 to enforce recognition of the Peoria picket line, at least insofar as the Conklin Lumber Company was concerned. Another incident supporting the inference that Local 179 had successfully obtained the cooperation of Local 627 is one involving the Service Transportation Lines whose representative, Mrs. Faye Hill, testified that she had told Teamsters Local 627 that Hill Transfer had a shipment for Alexander and that subsequently Mrs. Hill informed the Alexander warehouse first that the freight was at Hill Transfer Company's terminal "if the Union would allow it we would deliver it, or, they could come after it" and later, after talking with representatives of Local 627, Mrs. Hill notified the Alexander Warehouse that the freight could not be picked up "because there was a possibility they could throw a line around our place of business, too." 'g There is some question raised as to whether James Siegle was a supervisor rather than an employee. It seems to this Trial Examiner that it is clear from his testimony that he worked under the direction of the owners of the business, that there were only two other employees and that James Siegle was not accustomed to giving orders He worked as a salesman and did general work and had no proprietary or ownership interest in the firm Accordingly, it is found that his duties were not those of a supervisor. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Summary It seems convenient, before discussion of the facts and applicable law, to set forth the positions of the General Counsel, the Charging Party, and the Respondents, substantially as stated by counsel for these parties at the hearing, in brief, and at argument; 1. The General Counsel states that the ultimate decision to be made herein is not whether the picketing was primary or secondary but, under all the circum- stances of the case, whether the object of the picketing was violative of Section 8(b) (4) (A). The General Counsel does not contend that the picketing at Joliet, the situs of the dispute, was violative of the Act; nor does he contend that the picketing away from the situs of the dispute (Joliet) would be per se violative. He does contend that the real object of Respondents was to induce employees of secondary employers and not to induce employees of Alexander. The General Counsel con- cedes at the outset that the picketing at Joliet would have been picketing in a manner traditional in a labor dispute except that the picketing at Urbana and Peoria at locations other than the situs of this dispute was not in a "manner traditional." The General Counsel says further that since the picketing was not in a manner traditional and was not limited to a restricted geographical area, inquiry can be directed to the real objectives of the Respondents and asserts that, assuming for the purposes of argument that the Respondents' ultimate purpose was to win its strike at Joliet, such ultimate purpose is not inconsistent with the finding that the "object" of the picketing was to bring pressure against Alexander mainly through indirect, secondary pressure exerted on secondary employers. 2. The Charging Party says by counsel that the evidence is undisputed, and in large part admitted, that the Respondents engaged in a planned course of action whereby they induced employees to refuse to perform services for numerous lumber dealers, trucking companies, suppliers and other employers doing business with Alexander in the Urbana and Peoria areas for the objective of requiring these employers to stop doing business with Alexander. Counsel for the Company points out that the Union, despite the express proscriptions of the Act, contends that its inducement of employees of other employers at Urbana and Peoria was "protected primary activity" because of its strike at Alexander's Joliet warehouse-that this "is the sole issue in the case and it is virtually conceded that Respondents' conduct at Peoria and Urbana was unlawful unless it can be justified as protected primary activity." The Company says further that the complete answer to the Union's contentions is that its right to picket and interfere with employees of employers doing business with Alexander is not unlimited; that in the instant case, the Respondents went far beyond the limited protection accorded primary activity. It is said that not only was the real objective of Local 179 at Urbana and Peoria the accomplish- ment of a boycott by appealing to employees of other employers with whom Alexander did business in these two areas but that, related thereto, the Respondents' inducement of secondary employees occurred at locations remote from the situs of the Joliet dispute. 3. Counsel for the Respondents correctly states that the heart of the complaint against Respondents is contained in paragraph 6(b). It is introduced by the state- ment in paragraph 6(a) that "since on or about June 17, 1957, Respondents have picketed Alexander's establishments at Peoria and Urbana." Paragraph 6(b) then reads: In the conduct of the picketing at Peoria and Urbana set forth in paragraph 6(a) above, Respondents have not appealed directly to employees of Alexander at said locations to assist them in their dispute at Joliet, but instead have directly appealed to the employees of customers, suppliers, carriers and other employers doing business with Alexander at the latter's Peoria and Urbana establishments, not to cross the picket line to do business with Alexander at said establishments, and have threatened to picket the employers of said employees if they continued to do business with Alexander at said establishments. It is argued that appeals to employees of other employers to respect the picket lines established at the separate premises of the primary employer are not pro- hibited because (1) the interpretation of Section 8(b)(4)(A) has been long and firmly settled in favor of the permissibility of the conduct attacked by the com- plaint; (2) this conduct is likewise sanctioned at common law; (3) analysis of the elements of primary labor action confirms the soundness of the precedents under Section 8(b) (4) (A) and at common law, (4) the Peoria and Urban warehouses, no less than the Joliet warehouse, constitute the premises of the Company at which observance of the picket line by all may be sought, and that if this conduct is not permissible at all three warehouses, it is permissible at none; and lastly (5) the INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 933 complaint is predicated upon the premise, irrelevant in law and erroneous in fact, that the picketing at the Peoria and Urbana warehouses constituted an appeal directed exclusively to the employees of other employers and not to the Company's own employees as well. The Respondents say further that inducement of em- ployers not to deal with a primary employer is not proscribed by Section 8 (b) (4) (A) because Section 8(b) (4) prohibits only the inducement or encouragement of "em- ployees of any employer" and has no application to inducement or encouragement of employers by appeals, requests, or threats directed to their managerial or supervisory personnel. There is very little if any real factual dispute involved here. The incidents in connection with the strike at Joliet and conduct on the picket lines at the several places are substantially as set forth above in this Intermediate Report. The cir- cumstances in connection with the following of Quick, the following of Hamrick, and the following of the manager of Conklin Lumber Company and surrounding circumstances generally are not different except in summary from their mention by each of the parties. So, too, the incident in which Stewart had a conversation with the Joliet picket; the one involving Siegle, an employee of Siegle-Hunt Lumber Company; and the general conduct of the pickets with respect to their efforts to induce or encourage truckdrivers not to enter the premises or pick up or deliver goods at the premises of each warehouse, clearly appears upon the record and these instances are not in real dispute. The pattern of picketing at the Peoria and Urbana warehouses was the same. The presence of each picket line and the display of picket signs caused some drivers to turn away from the premises, some went through the picket line directly (particularly during the early days of the strike); others conversed with the pickets and then left, while still others talked with the pickets but nevertheless entered the premises. As remarked above, the number of trucks from suppliers or customers dropped from the early days of the strike from 50 or more to 3 or 4 a day.is In connection with the Olson incident, the Respondent says that because Olson was the manager of Conklin Lumber Company, the statements made to him by Crase, an officer of Local 179 (that if any of Olson's men touched any of the material procured for the warehouse he (Crase) was going to close Conklin down), and therefore Crase's statements did not constitute inducement or encouragement of "employees of any employer." However, it would seem, in the absence of any denial that the statements were made in the presence of at least two employees of Conklin, that such statements could well be regarded as inducement or encouragement to employees, without regard to the fact that Olson held a managerial position with Conklin Lumber Company. As reflected by the record, Jenkins & Key, Hall Freight Lines, Service Transportation Lines and Hill Transfer Company, as well as the railroad company, were employers whose employees were induced or encouraged within the meaning of Section 8(b) (4) (A). Concluding Findings The secondary boycott provisions contained in Section 8(b) of the Act were designed to protect innocent third persons from economic loss as a result of a labor dispute in which they have no concern. "The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the disputer but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands." N.L.R B. v. Local Union, No. 55, etc. (Pro- fessional and Business Men's Life Insurance Co ), 218 F. 2d 226, 230 (C.A. 10). See also N.L R.B. v. Denver Building and Construction Trades Council, et al_ (Could & Preisner), 341 U.S. 675. The Denver case covers the point that it was sufficient that an objective of the picketing, although not necessarily the only objective of the picketing, was to force the primary employer to terminate a sec- ondary employer's uncompleted project and thus cease doing business with the primary employer on a construction project A question is raised herein as to whether there is any significance in the fact that because of the dispute between Alexander and Local 179 at Joliet, picketing was 16 Referring to the Siegle and Quick incidents, the Respondents, citing Santa Ana Lacan- ber Co , 87 NLRB 937, contend that neither incident discloses encouragement of employees and that Siegle was clearly a management representative, and that both Siegle and Quick were the sons of secondary employers, that since the proscription of Section 8(b) (4) applies only to employees, Section 2(3) of the Act applies and that the facts show here that each of the persons addressed was not an employee. 577654-G1-vol 128-6O 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extended to Alexander's warehouses at Peoria and Urbana. The Trial Examiner does not believe that the mere fact that picketing occurred at Peoria and Urbana is conclusive in itself-he does believe that the motivation of Local 179 in extending its picketing to these two places is important to a proper decision in this case. In ordinary case the situs of the picketing furnishes a reasonable index for dis- tinguishing between primary and secondary activity. Picketing confined to premises occupied exclusively by the employer with whom the picketing union has a dispute is generally regarded as permissible primary activity, even though neutral emp.oyees having business at the picketed site may be induced not to cross the picket line. International Rice Milling Co. Inc., et al. v. N.L.R.B., 341 U.S. 665, 670-673; DiGiorgio Fruit Corporation, et al. v. N.L.R.B., 191 F 2d 642, 649 (C.A.D.C.), cert. denied 342 U.S. 869, N.L.R.B. v. Service Trade Chauffeurs, etc., Local 145, etc., (Howland Dry Goods), 191 F. 2d 65, 66 (C.A. 2). However, if the picket line is extended to the separate premises of an employer who is a stranger to the dispute, the picketing is generally regarded as unlawful secondary inducement of the neutral employer's employees. Printing Specialties etc. Union, Local 388, AFL (Sealright Pacific Ltd.) v. LeBaron, 171, F. 2d 331, 334 (C.A. 9). Where the primary employer is doing business at premises shared by other em- ployers, "the right of neither the union to picket nor the secondary employer to be free from picketing is absolute." International Brotherhood of Boilermakers, etc., Lodge No. 92, etc. (Richfield Oil Corporation), 95 NLRB 1191; N.L.R.B. v. Service Trade Chauffeurs, etc. (Howland Dry Goods), 191 F. 2d 65, 67 (C.A. 2). In these common situs situations the problem becomes one of balancing the "right of labor or- ganizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 692. So it would appear that infringement of the normal immunity of neutral employers should be permitted only to the extent that such infringement is necessary to insure the right of a labor organization to bring pres- sure on the "offending" employer. Cf. N.L.R.B. v. The Babcock & Wilcox Company, 351 U.S. 105, 112. And whether a labor organization which engages in common situs picketing has observed this limitation or, conversely, whether the labor organiza- tion has deliberately sought as an object of its picketing to exert pressure on neutral employers in order to achieve its ultimate goal becomes eventually a question of evidence. The Trial Examiner believes and finds that the evidence as disclosed by the record herein demonstrates that the conduct of the Respondents was not designed only to bring pressure on Alexander, with whom it had the dispute at Joliet, but was deliberately directed at neutral employers through their employees so that the neu- tral employers would, as they did, refuse to do business with Alexander at Peoria and Urbana. Further, the Trial Examiner believes and finds that the Respondents' picketing was designed to bring about the refusal of suppliers of materials to the Peoria and Alexander warehouses and that this objective of the Union was successful.17 In this case, counsel for each party leans upon International Rice Milling Co. Inc., et al. v. N.L.R.B., 341 U.S. 665, for different reasons. In that case, a union picketing a mill to obtain recognition requested two employees of a customer of the mill not to cross the picket line. There were no inducements made beyond "the geographically restricted area near the mill." 341 U.S. at 671. Under the circumstances shown in that case the court held that the isolated inducement of secondary employees was merely incidental to the lawful primary strike. See also N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675, 687-688. The Respondents correctly contend that the secondary boycott, not primary labor action, is the target of Section 8(b)(4)(A), and observance of a primary picket line by all employees is the indispensable minimum attribute of primary labor action. In support of this proposition DiGiorgio Fruit Corporation et al. v. N.L.R.B., 191 F. 2d 642 (C.A.D.C.), cert. denied, 342 U.S. 689; N.L.R.B. V. International Rice Milling Co., Inc., et al., supra; The Pure Oil Company, 84 NLRB 315; and Ryan Construction Corporation, 85 NLRB 417, are cited. In 11 Cf. Local Union No. 313 etc. (Peter D. Furness, trading as Peter D. Furness Electric Co.), 117 NLRB 437, 438; Otis Massey Company, Ltd., 109 NLRB 275, 276. It is the nature of the inducement and encouragement, not the measure of success, which deter- mines whether picketing falls within proscribed activities under the Act. N.L.R.B. v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS)), 226 F 2d 900, 904-905 (CA. 2), cert denied, 351 U.S. 962. INT'L BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, ETC. 935 DiGiorgio it was noted that the activities of the Teamsters were confined to the entrances to the DiGiorgio property; in International Rice, the picketing was con- fined to the mill of the primary employer; in Pure Oil Company and Ryan Con- struction Company the whole of each employers' premises was picketed and so far as this Trial Examiner can find, there was no evidence or proof of inducement directed to employees of other employers, in the sense of direct action other than picketing and attendant conversations and perhaps threats, which would indicate an extension of lawful picket line activity. Counsel for the Respondents correctly states that International Rice and DiGiorgio are authoritative judicial authority for the proposition that Section 8(b)(4)(A) does not prohibit inducement of employees of other employers not to cross a picket line at the premises of the primary employer. However, the argument goes further. Counsel in brief says that the import of these cases is not yet exhausted; that the Board's decision in International Rice rests explicitly on Pure Oil Company (84 NLRB 315, 360, 362, footnote 2); and the Board's decision in DiGiorgio rests explicitly on Pure Oil Company and Ryan Construction Corporation (87 NLRB 720, 721, footnote 3); and that Pure Oil Company and Ryan Construction Company are cited with approval by the Supreme Court in International Rice (341 U.S. 665, 672, footnote 6), with express reference to those pages of the opinion in which observance of a primary picket line by all who approach it is found to be traditional primary labor action. Thus, it is reasoned, the decision of the Supreme Court in International Rice and the decision of the Court of Appeals in DiGiorgio stem from and concern the Board's decision in Pure Oil Company and Ryan Construction Company. It seems to the Trial Examiner that the Charging Party is much closer to the degree of emphasis to be placed upon Pure Oil Company and Ryan Construction Company when it is averred on its behalf that the early Board cases allowed much more freedom of action in respect to picketing when a dispute with the primary employer was in progress. It is pointed out that in Pure Oil, decided by the Board in 1949, the union was engaged in a dispute with Standard Oil Company and was permitted to picket at a nearby dock owned by Standard even though this interfered with employees of Pure Oil Company at that location; and that in Ryan Construction Company, decided in the same year, a union having a dispute at a plant where the primary employer engaged in manufacturing was permitted to picket the entire block even though the picketing induced work stoppages by employees of a con- tractor building an addition to the primary employer's plant at the same location. International Rice Milling and its companion cases, Denver Building and Construc- tion Trades Council, IBEW, Local 501, and Local 74, Carpenters, all decided June 4, 1951, would seem to modify in several respects the liberality accorded picketing against a primary employer by the Board in cases considered by the Board on the particular merits of each case. As the Board held in Local 618 et al. (Incorporated Oil Company), 116 NLRB 1844 (a Section 8(b) (4) (A) case)- The essence of the relevant proscription embodied in the language of Section 8(b) (4) (A) of the Act is to outlaw any inducement of employees to cease work where an object of such conduct is to interrupt the business carried on between their employer and any other company. [P. 1845.] The Board wrote further (p. 1848) : Our decision here is defined and confined by the limitations that are necessarily infused into it by the facts and the record of this case. To treat it otherwise- that is, to treat it outside the scope of the issue which it resolved-is to deal with a case that is not here. Therefore, no useful purpose would be served by discussing and distinguishing the many types of situations on which our dis- senting colleague [Member Murdock] speculates. Orderly administration of the statute entrusted to us is best effectuated by adherence to the past practice of deciding cases as they arise and not by extended discussion of the construction to be placed on decisions previously made. Many cases bearing on this subject other than those mentioned herein have been cited in the excellent briefs filed by each of counsel. However, no useful purpose would seem to be served by discussing each of them herein. However special attention has been directed after the filing of briefs to Local No. 48, Sheet Metal Workers, et al. (Gadsden Hearing, etc.), 119 NLRB 287 citing J. G. Roy and Sons Company, 118 NLRB 286; the decision of the Court of Appeals for the Eighth Circuit, November 18, 1957, setting aside the Board's decision in Incorporated Oil Company, 116 NLRB 1844; Retail Fruit and Vegetable Clerks Union, Local 1017 et al. v. N.L.R.B., 249 F. 2d 591 (C.A. 9), enfg. 116 NLRB 856 (Crystal Palace Market), and J. G. Roy and Sons Company v. N.L.R.B., 251 F. 2d 771 (C.A. 1), 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remanding 118 NLRB 286.18 These cases and the comment of counsel have been carefully considered by the Trial Examiner. As indicated above, the Trial Examiner in the resolution of this case has depended upon the policy enunciated by the Board in Local 618, (Incorporated Oil) and has attempted to resolve the instant case on the merits. Although International Milling is applicable as to principle, the facts here do not fit the facts as presented to the Supreme Court in that case. Rather the Trial Examiner has preferred the principles enunciated in Denver Building and Construction Trades Council, where the Court wrote (p. 687): We must first determine whether the strike in this case had a proscribed object. The conduct which the Board here condemned is readily distinguishable from that which it declined to condemn in the Rice Milling case, ante, p. 665. There the accused union sought merely to obtain its own recognition by the operator of a mill, and the union's pickets near the mill sought to influence two employees of a customer of the mill not to cross the picket line. In that case we supported the Board in its conclusion that such conduct was no more than was traditional and permissible in a primary strike The union did not engage in a strike against the customer. It did not encourage concerted action by the customer's employees to force the customer to boycott the mill. It did not commit any unfair labor practices proscribed by Section 8(b)(4). The result is that the Council's strike, in order to attain its ultimate purpose, must have included among its objects that of enforcing [the subcontractor] to terminate that subcontract. On that point, the Board adopted the following finding: That an object, if not the only object of what transpired with respect to . [the subcontractor] was to force or recall them to cease doing business with [the general contractor] seems scarcely open to question, in view of all of the facts and it is clear at least as to [the subcontractor] that the purpose was achieved. [Emphasis supplied.] 82 NLRB at 1212. We accept this crucial finding. It was an object of the strike to force the contractor to terminate [the] subcontract. In the instant case, it surely was an object of Local 179 and its agents, through the establishment of its picket lines at Peoria and Urbana, to induce and encourage truckdrivers not to pass the picket line and either pick up or deliver goods and materials or any supplies to or from each or either of these warehouses. However, the inducement went further, and fell precisely within the proscriptions of Section 8(b)(4)-(A), and the Trial Examiner so finds. Local 179 barely went through the motions of attempting to persuade the em- ployees of Alexander at either the Peoria or Urbana warehouse to join with them either on strike or as members of the Union, or both. The thrust of action by Local 179 at these two places plainly was directed toward customers and suppliers of the Company, with the object of inducing or encouraging the employees of customers and suppliers of Alexander to engage in a concerted refusal in the course of their employment to use, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, with an object of forcing or requiring their employers to cease using, selling, handling, transporting, or otherwise dealing in the products of Alexander, and to cease doing business with Alexander The picketing of the premises of Alexander conducted by Local 179 at Joliet and Urbana would have been permissible under the Act had the activities of the pickets been confined to the picket line. When, however, union members extended their activities beyond the picket line, as they did in this case, they proved motivation and conduct going beyond permissive action.19 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in connection with the operations of the Charging Party described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several 19The Trial Examiner was also supplied with-a copy of the administrative decision of the General Counsel, Case No F-228, made public November 11 1957 19 At the same time that Sections 7 and 13 safeguard collective bargaining, concerted activities in strikes between the primary parties to a labor dispute, Section 8(b) (4) re- stricts a labor organization and its agents in the use of economic pressure where an object of it is to force an employer or other person to boycott someone else . Denver Building and Construction Trades Council , et al. ( Gould d Preisner), 341 U.S, 675 at 687 AMERICAN BAKERY & CONFECTIONERY WORKERS, ETC. 937 States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, it will be recommended that they cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 179, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America are labor organizations within the meaning of Section 2(5) of the Act. 2. The Respondents John T. O'Brien and David Sark have been and are co- trustees of Respondent Local 179 and as such trustees the said Respondents are agents of the Respondent International Union and Respondent Local 179 within the meaning of Sections 2(5) and 8(b) of the Act. Respondents Thomas Floyd and Elrie Floyd have been and are temporary president and vice president, re- spectively, of Local 179 and are agents of Respondent Local 179 and Respondent International, within the meaning of Sections 2(5) and 8(b) of the Act. 3. The Respondents, by directly appealing to the employees of customers, sup- pliers, carriers, and other employers doing business with Alexander Warehouse & Sales Company at the latter's Peoria and Urbana establishments, not to cross picket lines to do business with Alexander at said establishments, and by threatening to picket the employers of said employees if they continued to do business with Alexander at said establishments, and by other means, including orders, directions, instructions, requests, appeals, and threats of disciplinary action, the Respondents have engaged in, and are inducing and encouraging employees of customers, sup- pliers, carriers, and other employers doing business with Alexander at the said establishments to engage in, strikes or concerted refusals in the course of their employment to use, process, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to perform services for their respective em- ployers. By such picketing and inducement and encouragement of employees of the said various employers, to engage in a concerted refusal to perform services for their several employers, the above-named labor organizations have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and -(7) of the Act. [Recommendations omitted from publication.] American Bakery and Confectionery Workers International Union, AFL-CIO, Local No. 173 and Continental Baking Com- pany, Inc. Cases Nos. 16-CB-148 and 16-CB-149. August 25, 1960 DECISION AND ORDER On December 30, 1959, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (b) (2) of the Na- tional Labor Relations Act 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. The Trial Examiner also found that the Respondent had not engaged in certain other 128 NLRB No. 94.