Local 705, Int'l Brotherhood of Teamsters, Etc.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Congress finds that, in the public interest , it continues to be the respon- sibility of the Federal Government to protect employees' rights to organize, choose their own representatives , bargain collectively, and otherwise engage in concerted activities for their mutual aid or protection. . . . Turning back to a point noted early in these "Conclusions ": the Unions' con- cession that for a brief period before the filing of the charge the Unions were picketing for an object declared unlawful by the recent amendments . In view of the prompt action by the Unions to publicize its withdrawal of that object, the Trial Examiner perceives no reason to believe that a cease-and-desist recommendation would further effectuate the policies of the Act. Finally, it is concluded and found that the evidence does not sustain the allegation that the Respondents have violated Section 8 (b) (7) (C) of the Act. Under all the circumstances described above, the Trial Examiner will recommend that the complaint be dismissed in its entirety . To hold otherwise , he believes, would be to lend applause to the spectacle of nimble employers thus playing juris- dictional hopscotch on the graves of employee rights. [Recommendations omitted from publication.] Local 705, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America ; Louis Peick, its Sec- retary and Treasurer ; Joseph Desmyter, Business Agent and Cartage and Terminal Management Corporation . Case No. 13-CP-3. February 20, 1961 DECISION AND ORDER On May 20, 1960, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of Section 8(b) (7) (C) of the Act, 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. The Trial Examiner further found that the Respondents had not violated Section 8(b) (1) (A) of the Act. There- after the Respondents and the General Counsel filed exceptions to the Intermediate Report and briefs. On September 8, 1960, oral argu- ment was held before the Board in Washington, D.C.; the General Counsel, the Respondents, and the Charging Party participated. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed.. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, the briefs, the oral argument,' and. the entire record in the case, and hereby adopts the findings, conclu sions, and recommendations of the Trial Examiner, with the follow- ing modifications. The Board Members unanimously agree on the evidentiary facts found by the Trial Examiner : Particularly, that the Respondents 1 Members Rodgers and Kimball, although not present at the oral argument , have con- sidered the transcript thereof. 130 NLRB No. 70. LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 559' picketed Cartage for more than a reasonable period of time after No- vember 13, 1959, the effective date of Section 8(b) (7) (C), without filing an election petition; an object of the picketing was to force Cartage (1) to employ certain union members (the former Riss drivers) for work it was then performing without union members, and (2) to recognize and bargain with the Union as the representative of such employees, although the Union was not currently certified as their representative. Moreover, the picketing had the effect of in- ducing stoppages of deliveries. The Respondents argue that the picketing nevertheless did not violate Section 8(b) (7) (C), principally on the ground that no recog- nition dispute was involved, that Cartage in fact recognized the Union as the representative of the former Riss drivers, and that the only dispute was over the terms and conditions of their employment. In our opinion this constitutes an admission of the alleged violation, for Section 8(b) (7) (C) prohibits picketing not only with an object of forcing an employer to recognize a labor organization, but also, as the Respondents here concede to be the case, with an object of forcing an employer to bargain with a labor organization. Moreover, the facts do not support the argument that recognition was not an object of the picketing. In Lewis Food Company, 115 NLRB 890, 892, for ex- ample, a union struck an employer to force the reinstatement of cer- tain discharged employees; and the Board rejected a similar argu- ment and found that an object or purpose of the strike was to require the employer to recognize and bargain with the union "as to this matter." 2 Nor can we accept the reasoning of our dissenting colleague that because the picketing here might be deemed to violate Section 8 (b) (4) (D), it cannot for that reason be found to be a violation of Section 8(b) (7) (C). The Board has held that conduct which violates Section 8 (b) (4) (D) of the Act may also violate other sections of the Act, such as 8 (b) (4) (A) 3 and 8 (b) (2),' and we perceive nothing in the nature of the conduct prescribed by Section 8(b) (7) (C) which precludes ap- plication of the principle of the cited cases to the instant case.' 2 Accord - Maeatee, Inc, 127 NLRB 683; General Ore, Inc, 126 NLRB 172; West Seattle Dodge Company, 125 NLRB 729; Industrial Chrome Plating Company, 121 NLRB 1298 See also Blinne Construction Company, 130 NLRB 587, with respect to the Respondents' argument that the picketing was in protest against alleged unfair labor practices by Cartage. Member Fanning believes that the Respondent's picketing in this case had as its object recognition as majority representative of applicants (Riss' drivers) for employment with Cartage at a time when Cartage had no employees. He therefore does not rely on his colleagues' further finding, in reliance on the Lewis Food Company case, that a strike to force reinstatement of discharged employees constitutes a strike for recognition, or that the Respondent's picketing was to force such reinstatement. -8 United Brotherhood of Carpenters and Joiners, etc., et al. (Wendnagel & Company), 119 NLRB 1444, set aside on other grounds 261 F. 2d 166 (C.A. 7). 'Local Union No. 48, Sheet Metal Workers, etc., et al. (Acousti Engineering of Alabama, Inc ), 120 NLRB 212. 5 As Member Fanning is not convinced that the facts in this case indicate a juris- dictional dispute in the sense of Section 8(b) (4) (D), he deems it unnecessary to decide 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find, in agreement with the Trial Examiner's con- clusion, although not with his reasoning, that the Respondents vio- lated Section 8(b) (7) (C) of the Act by picketing Cartage for more than a reasonable period of time after November 13, 1959, without filing an election petition. We shall therefore order the Respondents to cease and desist from the unfair labor practice found and to take the affirmative action set forth below. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of -the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondents, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents (including Louis Peick and Joseph Desmyter), successors, and assigns, shall : 1. Cease and desist from picketing or causing to be picketed Cartage and Terminal Management Corporation, where an object thereof is forcing or requiring said corporation to recognize or bargain with them as the representative of its employees, in violation of Section 8(b) (7) (C) of the Act. 2. Take the following affirmative action which the Board finds will ^efectuate the policies of the Act : (a) Post at its business offices and meeting halls copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's authorized representa- tives, be posted by the Respondents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are ,customarily posted. Reasonable steps shall be taken by the Respond- ents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Thirteenth Region signed copies of said notice for posting at Cartage's offices in places where notices to employees are customarily posted. The other pro- visions of the preceding paragraph shall apply insofar as applicable. (c) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. whether picketing which constitutes a violation of Section 8(b) (4) (D) does or does not violate the provisions of Section 8(b) (7) (C). 6In 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." LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 561 IT IS FURTHER ORDERED that the allegations of the complaint that the Respondents violated Section 8(b) (1) (A) of the Act be, and they hereby are, dismissed. MEMBER KIMBALL, dissenting : I am in agreement with the factual finding of the Board majority that the Union in picketing the Cartage and Terminal Management Corporation had as an object of such picketing the forcing of Cartage to assign work to one "class" of employees, to wit : The drivers previ- ously employed by Riss, and the displacement of employees, as the Trial Examiner found, to whom Cartage had assigned such work. I am unable to agree however with the conclusion of law reached by the majority of the Board that the picketing thus described vio- lated Section 8(b) (7) (C) of the Act as alleged in the complaint. Upon the facts described, it is my view that such picketing falls within the ambit of Section 8(b) (4) (D), as amended by the Landrum- Griffin Act, for such picketing does "threaten, coerce, or restrain [a] person engaged in commerce or in an industry affecting commerce [to wit, Cartage]," when such picketing has as in the instant case an object of (D) forcing or requiring any employer [Cartage] to assign particular work to employees in a particular labor organization or in a particular . . . class [to wit, former employees of Riss] rather than to employees in another . . . class [to wit, the present employees of Cartage], unless such employer is failing to conform to an order or certification of the Board determining the bargain- ing representative for employees performing such work : I would point out that Section 8(b) (7) (C) of the Act applies to picketing having as an object the forcing of an employer to recognize and bargain with a labor organization as the representative "of his [the employer's] employees," which is not the situation in the instant case. Instead, the object in this case was displacement of such em- ployer's employees by the former employees of the predecessor em- ployer, Riss. To conclude that Congress in enacting 8(b) (7) (C) could have in- tended that the situation here presented could fall into both sections of the Act should not lightly be inferred, for it is a sound rule of statutory construction to apply that portion of the Act which more nearly covers the situation existing rather than to attempt to extend and apply another portion of the Act of doubtful application. Therefore, in view of the wording of Section 8(b) (7) (C) and the complete absence of legislative history to support the view of the 5372:14-61-vo1. 130-37 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority, I believe that the clear meaning of that section cannot with validity be expanded to cover the present case. Accordingly, I would dismiss the 8 (b) (7) (C) complaint in its entirety. APPENDIX NOTICE TO MEMBERS AND TO EMPLOYEES OF CARTAGE AND TERMINAL MANAGEMENT CORPORATION 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 notify you that : WE WILL NOT picket or cause to be picketed Cartage and Ter- minal Management Corporation, where an object thereof is forc- ing or requiring said corporation to recognize or bargain with us as the representative of its employees, in violation of Section 8 (b) (7) (C) of the Act. LOCAL 705, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, W'VAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- ------------------------------------- (Louis PEICK) Dated---------------- ------------------------------------- (SOSEPH DESMYTER) 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; 73 Stat. 519), hereinafter called the Act. The amendment, contained in Public Law 86-257 (Labor-Management Reporting and Disclosure Act of 1959, enacted September 14, 1959 ), to be considered, is Section 8(b) (7), to be read in conjunction with Section 8(b)(1)(A ) of the Act before amendment by Public Law 86-257. Upon a charge filed on December 18, 1959 , by Cartage and Terminal Management Corporation (hereinafter sometimes called Cartage or the Charging Party), the General Counsel of the National Labor Relations Board on behalf of the Board, by the Regional Director for the Thirteenth Region, on January 22, 1960, issued a com- plaint and notice of hearing against Local 705, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America ; Louis Peick, its secre- tary and treasurer ; and Joseph Desmyter , business agent, as Respondents , asserting violations by them of the provisions of the Act mentioned above. The Respondents filed timely answer to,the complaint , effectively denying the allegations of substan- tive violations of the Act. This matter came to be heard before the duly designated Trial Examiner at Chi- cago, Illinois, on February 23, 1960. The General Counsel, the Charging Party LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 563 (Cartage), and the Respondents (the Union and its named representatives) were represented by counsel. At the hearing, it was stipulated between counsel, and the stipulation was received, that the record in Board Case No. 13-CC-216 (not pub- lished in NLRB volumes), heard by this Trial Examiner on December 16, 17, 18, and 21, 1959 (including the stenographic transcript of testimony and all exhibits), be considered as containing all of the facts necessary to the determination of this pro- ceeding. Accordingly, the findings of fact and conclusions of law contained herein are based on the whole of the evidence taken at the prior hearing in Case No. 13-CC-216. At the hearing herein, oral argument was waived. The General Counsel by counsel has submitted a brief and counsel for the Respondents has submitted pro- posed findings of fact and conclusions and a brief. The Respondents' motion to dismiss the complaint, as renewed at the hearing, is disposed of by the findings set forth below. The complaint as amended in this case (Case No. 13-CP-3) sets forth that Riss & Company (hereinafter sometimes called Riss) is a common motor carrier of freight in interstate commerce, and maintains terminals in several cities, including one in Chicago, Illinois; that Cartage, engaged in local carrier service, handles local pickup and delivery of freight for Riss at the Chicago terminal and in other places; that the Respondent Union and its agents, Louis Peick and Joseph Desmyter, on or about November 13, 1959, engaged in picketing Cartage, "and were causing Cartage to be picketed and since that time has continued to picket and cause Cartage to be picketed at the Riss Company terminal in Chicago"; and that the Respondents en- gaged in and continue to engage in these activities, an object or objects thereof being to force and require: (a) Cartage to recognize and bargain with Respondent Union as the collective-bargaining representative of the employees of Cartage; and (b) the employees of Cartage to accept and select Respondent Union as their collective- bargaining representative. The complaint goes on to allege that the Respondent Union at the times mentioned above was not and is not now currently certified as the representative of the em- ployees of Cartage, and that the Respondents and each of them engaged in such activities without a valid petition under Section 9(c) of the Act, involving employees of Cartage, having been filed within a reasonable period of time from the com- mencement of such picketing. Certain amendments to the complaint were received over the objection of counsel for the Respondents in Case No. 13-CC-216, at the opening of that hearing on December 16, 1959, to bring Desmyter into the case, to allege that he on or about September 23, and on or about October 5, 1959, threatened employees with bodily harm if they did not support the strike of the Union and the picketing of the Riss terminal or to cease working or handling goods for Cartage. The effect of the amendments allowed then, which included one to show that the complaint there concerned violation of Section 8(b)(1)(A) as well as Section 8(b)(4)(A) of the Act, did not at that time much affect, in the opinion of the Trial Examiner, the merits of the case. The amendments were made prior to the taking of testimony.' In the instant case the General Counsel asserts actions on the part of the Respond- ents constituting unfair labor practices within the meaning of Section 8(b) (1) (A) and 8 (b) (7) of the Act. Upon the record as a whole, including the testimony of witnesses upon the stipu- lated record, heard by me in Case No. 13-CC-216, all the exhibits, and upon care- ful consideration, I make the following: i Prior to the hearing in Case No. 13-CC-216, the Regional Director for the Thirteenth Region in Madden, et at. v. Local 705, et at., had petitioned the United States District Court, Northern District of Illinois, Eastern Division, for an injunction under Section 10(1) of the Act. That case was heard before the Honorable Michael L. Igoe, District Judge. Case No. 59-C-1657. Judge Igoe filed his findings of fact and opinion in that case on October 31, 1959, 45 LRRM 2260. Before the hearing in this case on February 23, 1960, Judge Igoe had received another application for injunction from the Regional Director which he denied. Case No. 60-C-79, February 16, 1960, 46 LRRM 2064. In each of the proceedings before him under Section 10(1), Judge Igoe made findings of fact and conclusions which I have been asked to notice and have so done. If in this report I differ from the findings of fact of Judge Igoe, it is because he was asked on "reasonable cause to believe" the facts set forth in a petition under Section 10(1) and after hearing to enjoin, whereas my task now is to fully consider the case and to make final recommended findings. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS INVOLVED (a) Riss & Company, Inc., is, 'and at all times material herein has been, a corpora- tion incorporated and existing under the laws of the State of Missouri , having its principal office at Kansas City, Missouri, where it is engaged as a common motor carrier of freight and operates in and through various States of the United States and maintains terminals in various cities in several States, including a terminal in Chicago, Illinois. Riss annually receives a gross revenue in excess of $1,000,000 for the transportation of freight between its Chicago , Illinois, terminal and terminals located in other States. (b) Cartage and Terminal Management Corporation is, and at all times material herein has been, a corporation incorporated under the laws of the State of Michigan, having its principal office at Melvindale, Michigan . Cartage is engaged in the local cartage business in Detroit, Michigan; Kearny, New Jersey; Denver, Colorado; Kansas City and St. Louis, Missouri; and Chicago, Illinois; in each of which cities it handles local pickup and delivery of freight for Riss. Cartage annually receives a gross revenue in excess of $50,000 for the services it performs for Riss & Company. In Chicago, Illinois, Cartage occupies and utilizes a Riss terminal in connection with its operations. Cartage is, and at all times material herein has been, engaged in commerce and its business operations affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; Louis Peick, its secretary and treasurer; and Joseph Des- myter, business agent , are Respondents herein . Said Union is a labor organization within the meaning of Section 2(5) of the Act; Peick is and has been secretary and treasurer of said Union and the agent of Respondent Union within the meaning of Sections 8(b) and 2(13) of the Act; and Joseph Desmyter is, and at all times ma- terial has been, a business agent of said Union, and the agent of said Union within the meaning of Sections 8(b) and 2(13) of the Act. III. THE UNFAIR LABOR PRACTICES The parties are not in substantial disagreement on the facts giving rise to this dispute, as shown in the briefs filed on their respective behalfs. They are not at all in accord on the answers to the questions of law to be decided on the basis of the facts as disclosed by the record, nor the interpretation of Section 8(b) (7) (C) of the Act as applied to the facts herein. Briefly, the facts are these: Riss, prior to August 21, 1959, trucked goods into the Chicago area to its ter- minal in Chicago and performed its own local pickup and delivery work with its own equipment and employees. On this date Riss entered into a contract with Car- tage, under which Cartage agreed to take over the local pickup and delivery work which Riss had theretofore been doing for itself . The arrangement made under this contract was practically identical in terms to other contracts in other cities between Riss and Cartage . What is referred to as the original agreement between these two employers was contained in the letter dated January 16, 1958, directed to Joseph C. Bromley, president of Cartage, by R. R. Riss, Sr., president of Riss, and accepted by Bromley, to cover pickup and delivery of freight by Cartage for Riss in the Detroit commercial zone. The terms of that original agreement, referred to below, were accepted as applicable to the service to be furnished by Cartage to Riss in Chicago, as evidenced by an agreement between the two companies dated August 21, 1959. At the time the Chicago agreement was entered into, Riss employed some 11 or 12 drivers to handle the local pickup and delivery work, these men being repre- sented for purposes of collective bargaining by the Respondent Union, as shown by a written agreement between the Union and Riss, such agreement by its terms to cover the period January 1, 1958, through December 31, 1960. On September 4, 1959, President Bromley of Cartage and Arthur Tisch, vice president-secretary of Cartage, called at the office of the Union for the purpose of entering into a contract covering the operations of Cartage in Chicago in connec- tion with the pickup and delivery work to be done for Piss This meeting had been arranged by an appointment made by Bromley with officials of Local 705. Robert Blazewick, terminal manager for Riss at Chicago, attended the meeting. Bromley and Tisch conferred with Louis Peick, secretary-treasurer of the Union, and Joseph LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 565 Desmyter, one of its business agents. The company representatives informed the union representatives that they had come to sign a contract covering the present employees at Riss; upon inquiry, Bromley told Peick that he did not intend to lay off any of the Riss drivers, but, on the contrary, would take over the then present complement of personnel "and all the attendant benefits." At the time of this September 4 meeting, no date had been set for the taking over of local operations by Cartage. At this meeting the union representatives learned that Cartage would not own any physical assets in the State of Illinois (their prin- cipal place of business being at Melvindale, Michigan) and therefore requested a letter from Riss guaranteeing the drivers formerly employed by Riss to be employed by Cartage 2 weeks' wages and vacation pay as a guarantee against repetition of when, once before, Riss had turned over its local operations to another company that had subsequently gone out of business without meeting its full wave obliga- tions to its employees-the Union wanted a guarantee of Cartage's performance so as to protect members of the Union in the event Cartage should default on its contract obligations at any time in the future. Bromley at that meeting indicated that he could not commit Riss but that he would discuss the matter with that com- pany. After some further discussion, Bromley signed two copies of a labor con- tract which contained terms and conditions identical to those in the current agree- ment between Riss and the Respondent Union. These copies were not executed by anyone on behalf of the Union, but were retained by the union representatives, Peick making it clear that whether or not the Union would enter into a contract with Cartage would depend on whether Riss would become Cartage's guarantor and whether the Union's executive board would consider the matter further. At this time Cartage did not question the Union's majority status. About a week later, Peick presented the facts to the executive board of the Union in connection with the proposition of Cartage through Bromley and Tisch, and ex- plained that as a part of the negotiations and before he would agree to a contract with Cartage, he was insisting on the guarantee from Riss. Upon the approval of the executive board concerning the actions taken by Peick and Desmyter, Peick and the president of the Union signed contracts previously signed by Bromley as president of Cartage. On September 17, Vice President-Secretary Tisch, accompanied by an attorney, called at the union office to determine whether Cartage had a contract with the Union. Peick informed the attorney that the contracts had been signed on behalf of the Union and asked whether he and Tisch had brought the guarantee from Riss as insisted upon by the Union. Tisch and his attorney were unable to produce a written guarantee; Peick refused to turn over a copy of the contract previously signed by Cartage and signed a week later by representatives of the Union, on the ground that he had signed only because he understood, and had so assured the executive board, that the performance of Cartage of the terms and conditions of the collective agreement had to be guaranteed by Riss. After further discussion between the parties concerning the manner in which Cartage intended to conduct its business, Tisch and the attorney left without the contract, both copies of which remained in possession of the Union. At no time was the Union supplied with the guarantee from Riss which it insisted on as a part of any contractual relationship it would enter into with Cartage. Cartage had established its Chicago headquarters at the Riss terminal. On September 21, 1959, Cartage began its Chicago operations, whereupon the Union immediately began picketing Riss at the Riss terminal because, it claimed, Riss had failed to take the proper steps under its collective agreement with the Union to terminate the Riss drivers and thus had engaged in a lockout when it turned its local operations over to Cartage on September 21. The Union was successful in its contentions and by September 24 the Riss drivers were put back to work and continued to work for Riss through October 2. Under date of October 1, 1959, President Riss addressed a notice to all employees of Riss & Company, Inc., members of Local Union 705, reminding them that Riss & Company, Inc , had entered into a contract with Cartage for local pickup and delivery service in the Chicago area; that a representative of Cartage had previously talked with them regarding employment with that Company; that Riss "has re- quired' that Cartage attempt to employ all previous employees of Riss in accord- ance with their seniority status at Riss; that a representative of Cartage "will be at the Riss terminal on Friday, October 2, at 9 a in. and throughout the day to talk to you"; and finally, "This will be your termination notice as an employee of Riss and Co Inc. and enclosed is your check for wages due through October 2, 1959." At the meeting of September 17, between Tisch and his attorney for Cartage and Peick for the Union, the matter of Cartage's plan to pay drivers on a commission basis without regard to the hours worked first came up. Between September 14 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 17, Tisch was engaged in efforts to negotiate terms of hire with individual Riss drivers on conditions the Respondent Union says were in violation of the collective agreement between it and Cartage, which, it has always maintained, became effec- tive upon the acceptance by the executive board of Bromley's signature and the execution of the agreement by authorized union representatives. The General Counsel says, for reasons stated below, that that contract never became effective. Between September 17 and 21, Tisch had interviewed men who responded to advertisements placed in newspapers seeking drivers who owned their own tractors. On October 5, Cartage attempted to resume operations in the Chicago area and the Union again picketed at the Riss terminal, this time the picketing being directed against Cartage. The Union has maintained a picket line made up of former Riss drivers as pickets, since October 5. Cartage, on October 13, sent a telegram to the Union . This telegram, signed by Bromley as president of Cartage, read: My signature on proposed contract is withdrawn and is to be of no force or effect. I do not consider that any agreement is in effect between 705 and our company. On the following day the Union by Peick sent a reply telegram to Bromley, as follows : In regard to your telegram of this date this is to inform you that we do not regard your attempted unilateral action as affecting the validity of the contract. The contract remains in full force and effect. Between September 17 and 21, drivers responding to the advertisements placed in newspapers and interviewed and hired by Tisch , on October 5 signed a contract with and became employees of Cartage. The record shows that in each of the cities where Cartage performs local pickup and delivery for Riss (including Chicago) Cartage enters into a written agreement with drivers which provides that the driver shall furnish equipment owned or leased by him , the equipment being a tractor and Riss supplying the trailer , the driver to maintain his tractor at his own expense, to pay all taxes , pay all license fees, pay all operating costs of his tractor, pay for any additional substitute or relief driver's wages, provide and pay for workman's compensation, be responsible for all damage to tractor and trailer resulting from his own negligence , to authorize Cartage to deduct without limit any charge incurred in the operation of the tractor , pay for all vacation pay, holiday pay, and welfare and pension fund charges. Under this agree- ment, a driver is compensated for his services at a specified rate per hundredweight picked up and delivered; the rate may vary according to whether it is a full truckload or a less than a truckload. Payment under this agreement is provided for by check payment at ,the end of each week . The agreement continues subject to termination by either party Cartage or the driver, at any time upon 30 days' written notice. In the interim September 14 to 17, 1959 , it seems clear enough that Desmyter brought to the attention of Tisch , provisions in the contract covering owner-drivers and told Tisch that if Cartage wanted to buy the trucks and pay the men by the hour they could take over the operation. The General 'Counsel says that there is not and never has been a collective- bargaining agreement in effect between Cartage and Local 705. Therefore , he says, the picketing of Cartage by the Respondent Union clearly is for the purpose of forcing or requiring the Charging Party (Cartage) to recognize or bargain with the Union as the representative of Cartage's employees and therefore is proscribed by Section 8(b) (7) of the Act. He contends that employees involved are those persons hired by Cartage to drive for it after the Riss drivers rejected the offer of Cartage to employ them. The General Counsel says that should it be found that there is a collective-bargaining agreement in effect between Cartage and the Union , the picket- ing being conducted by the Union is still for the object proscribed by Section 8(b) (7) of the Act. The Respondents take the position that the facts herein show that a valid contract was entered into between Cartage and the Respondents and that Cartage was and is now bound by the terms thereof. Left to be decided is the question of whether the employees of Cartage are driver-employees or independent contractors and whether or not the picketing at the premises of Cartage, which necessarily includes picketing the premises of Riss, constitutes action proscribed by Section 8(b) (7) of the Act. The brief filed by each of counsel fairly presents the position of each party. The proposed findings of facts and conclusions of law submitted to me by counsel for the Respondents will be, as is apparent, adopted by me only in part. These findings, obviously, are based upon the opinion of Judge Igoe in the cases mentioned in foot- note 1, above. - LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 567 I have examined with some care the cases cited by counsel for the General Counsel in support of his position in connection with whether or not there was and is a con- tract in existence between Cartage and the Union.2 Continuing his argument he says that whe the common law doctrine of "right of control" is applied to this case it is apparent that the persons who went to work for Cartage on September 21 and again on October 5, 1959, are employees and not independent contractors. I agree. Because of the mere fact that the dispatcher of Riss informs Cartage concerning destination of pickups and deliveries and further because the employees, or so-called contract drivers, follow routings as given to Cartage by the Riss dispatcher, does not weaken the control of Cartage over these drivers. I think that the drivers (other than the former Riss employees) employed directly by Cartage are employees of Cartage because of the manner in which business is done. Cartage directs completely the way in which the drivers go about the daily business of picking up and delivering freight. They perform, it seems, in no manner different from that in which the drivers of Riss did the same work when Riss con- trolled directly pickup and delivery service before Cartage came into the picture. Calls to the Riss terminal from a customer who wants freight picked up is routed to a city driver through Cartage upon information furnished by the Riss dispatcher. The driver takes his truck to the point where the freight is waiting, loads it on his truck and brings it back to the terminal. Concerning incoming freight, it is removed from a Riss over-the-road truck at the Riss terminal and placed on a city truck and carted from there by the city driver to the consignee. I agree with the General Counsel that the only real difference in operations is that while ultimate or the last supervision formerly lay with Riss over the Riss drivers, it now lies with Cartage over Cartage drivers. Further, as is shown by the evidence herein, the Cartage driver did not need to own a tractor to go to work for Cartage at the time it was setting up its Chicago operation-Cartage offered to arrange for former Riss drivers to have the use of a tractor for a time if they wanted to try out Cartage on the terms Cartage offered them. On the narrow issue of fact involved herein I believe there is sufficient evidence in the record to show that Cartage exercises control over its employees and controls the work. The mere fact of close association of quarters between Riss and Cartage seems to me to have no bearing on the ultimate effect of control of Cartage of its own drivers, whether hired through the advertisements and working under the con- tract between them and Cartage, or whether there is or is not a contract between Cartage and the Union. With respect to the findings of fact and conclusions of law as proposed by counsel for the Union, I adopt as my own the proposed finding that Respondent Local 705 is not currently certified as the representative of any of the drivers of Cartage; I adopt his proposed finding as my own that since on or about October 5, 1959, Respondents have picketed Cartage and said picketing has been conducted for more than 30 days after November 13, 1959, without the filing of a petition under Section 9(c) of the Act for a Board election; I adopt his proposed finding that since October 5, 1959, employees from various companies have driven up to the entrance to the terminal where Cartage is being picketed, to make pickups or deliveries, and have failed to make some pickups and deliveries. Although, as pointed out above, the Riss dispatcher routed local pickup and delivery service made by the employees of Cartage (the so-called contract drivers, Poston, Watts, Rollins, and Brunt), the fact is that the drivers acted directly under the orders of Tisch until there came a time when Cartage abandoned its efforts to make pickups and deliveries through its own drivers because of the picketing con- ducted by the Union at the premises occupied jointly by Riss and Cartage. .I can find no basis of fact on which to rest a finding that the signing of the union agree- ment by Bromley and the later signing of the agreement by the union representative constituted, in the circumstances, a contract between Cartage and the Union. The condition laid down by the Union to the effect that Riss be required to guarantee pay- ment of wages for the drivers to be taken over by Cartage, imposed a condition that was never fulfilled. There was no complete meeting of the minds. I do not see how the Union with justification can claim that Cartage reached an existing agreement covering the ex-Riss drivers when the Union itself imposed the condition it did before allowing them to go to work for Cartage. 2 General Counsel cites in support of his position that owner-driver employees are not independent contractors He has cited National Van Lines, 123 NLRB 1272; Standard Trucking Company. 122 NLRB 761 ; G. L Allen Company, 117 NLRB 1055 ; National Van Lines, 117 NLRB 1213; New Orleans Furniture Manufacturanq Co., 115 NLRB 1494; Local 148, Truck Drsvers and Warehousemen's Union, etc (Harry Griffin Trucking), 114 NLRB 1494; and Hoster Supply Company, 109 NLRB 466. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel is precisely right, I think, when he says that the telegram of October 13 sent by Bromley to the Union only reaffirmed the fact that Bromley had not ever agreed to the terms and conditions imposed beyond the agreement which he signed and that, therefore, the agreement itself never went into effect. The reply of the Union on October 14 to that telegram to the effect that it claimed the contract to be in full force and effect was a claim or statement of position only, which I find, on the facts, was not valid. If I understand the position of the Union correctly, it has always maintained that Riss, for whose employees the Union was the recognized collective-bargaining representative, had a right to go out of the local cartage business in Chicago and terminate its local drivers as long as the discharges were effected in accordance with the terms of the contract between Riss and the Union. It is clear enough that the dispute between September 1 and 24 grew out of the failure of Riss to follow the contract in discharging or the way in which it dis- charged its drivers and the dispute was between Riss and the Union and not Cartage and the Union. Between September 24 and October 5, the Union does not dispute that Riss had the right as management prerogative to desert the local Cartage business and have the right to discharge those drivers engaged in making local pickup and delivery service according to the terms of the agreement between Riss and the Union. I find that on and after October 5 the Union had no dispute with Riss. Whether the Union may assert a dispute with Riss because of the possible failure of Riss to abide by its collective-bargaining agreement with the Union is not of importance here, except to show that the dispute, as evidenced by picketing, grew into a claim of the Union against Cartage and that the picketing conducted by the Respondents is against Cartage, and is in the absence of a valid contract or collective agreement between Cartage and the Union. I think it is demonstrated that the picketing of Cartage can be only for the purpose of forcing or requiring Cartage to bargain with the Union. Business Agent Desmyter, in answer to a question put to him by the General Counsel, testified that picketing against Cartage was for the reason that the Union represented the employees of Cartage because "he has a signed contract . . . he [Bromley] claimed he would put all our men to work which he did not do." The picketing conducted by the ex-drivers of Riss at the terminal was supported by a placard in the first instance reading: MEMBERS OF LOCAL 705 I. B. of T. ON STRIKE On October 5 or 7, the words on the placard were enlarged to include the name of Cartage and Terminal Management Corporation. I think that the picketing conducted was and is peaceful picketing within the purview of the decisions of the Board and the courts, which are too numerous to mention. The facts show that there were no real acts of violence and that the activities engaged in by members of the Union in support of their picketing, were the ordinary types of suggestion in this kind of situation made to drivers coming into the terminal to persuade them that they should not go through the picket line I find no substantial evidence to indicate that anyone was threatened or coerced by either the pickets or union representative. Concluding Findings The pertinent provisions of the Act, to be considered herein with regard to alleged violations, are these provisions of Section 8(b) (7) (C) : SEc. 8. (b) It shall be an unfair labor practice for a labor organization or its agents- (7) to picket or cause to be picketed, or threaten to picket or cause to to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective bargaining representative, unless such labor organization is currently certi- fied as the representative of such employees: * * * * * * * LOCAL 705, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 569 (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 9(c)(1) or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appropriate and shall certify the results thereof: Provided further, That nothing in this subparagraph (C) shall be construed to prohibit any picketing or other publicity for the purpose of truthfully advising the public (including consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Now, with respect to the allegations contained in the complaint regarding vio- lations of Section 8(b) (1) (A) of the Act, they must be dismissed on the facts found herein, on the authority of N.L.R.B. v. Drivers, Chauffeurs and Helpers, Local Union No. 639 (Curtis Brothers), 362 U.S 274; 2828 U.S. Law Week, 4217. There, the Court, through Mr. Justice Brennan said (in part) : We conclude that the Board's interpretation of § 8(b)(1) (A) finds support neither in the way Congress structured § 8(b) nor in the legislative history of § 8(b)(1)(A). Rather it seems clear, and we hold, that Congress in the Taft- Hartley Act authorized the Board to regulate peaceful "recognitional" picketing only when it is employed to accomplish objectives specified in § 8(b)(4); and that § 8 (b) (1) (A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof--conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes. The Board's own interpretation for nearly a decade after the passage of the Taft-Hartley Act gave § 8 (b) (4) (A) this limited application. See, e.g., Na- tional Maritime Union, 78 NLRB 971, enforcement granted, 175 F. 2d 686; Local 74, United Brotherhood of Carpenters (Watson's Specialty Store), 80 NLRB 533, enforcement granted, 181 F. 2d 126, affirmed, 341 U.S. 707; Perry Norvell Co., 80 NLRB 225; Miami Copper Co., 92 NLRB 322; Medford Build- ing & Construction Trades Council (Kogap Lumber Industries), 96 NLRB 165; District 50, United Mine Workers (Tungsten Mining Corp.), 106 NLRB 903. In Perry Norvell, supra, at 239, the Board declared: "By Section 8(b)(1)(A), Congress sought to fix the rules of the game, to insure that strikes and other organizational activities of employees were conducted peaceably by persuasion and propaganda and not by physical force, or threats of force, or of economic reprisal. In that Section Congress was aiming at means not at ends." The Board dismisses these cases as "dubious precedent." 119 NLRB, at 246. We think they gave a sounder construction to § 8(b)(1)(A) than the Board's con- struction in the present case. Turning now to the question of whether or not the Respondents have engaged in activities in contravention of Section 8(b) (7) of the Act, separately and apart from any other consideration, I find that the organizational and recognitional picketing as described herein was in violation and is in violation of the provision of Section 8(b) (7) (C) of the Act. I have no comment especially to make with respect to changing of the legend on the placard carried by the pickets. The facts in this case show all too clearly that the picketing was against Cartage and not against Riss. It seems to me that the testimony of Desmyter alone shows that the reason for the picketing implied a continued organizational and recognitional objective against Cartage, and not against Riss. I think, too, the record in this case shows that once having obtained recog- nition by Cartage, the Union undertook to impose its own conditions with respect to organization within the framework of the operations of cartage. It follows that it must be found, as I do, that the activities of the Respondents and each of them herein were in contravention of Section 8 (b) (7) of the Act. Upon the whole record in this case and based upon the findings set forth above, it is found that the Respondents and each of them engaged in activities in contraven- tion of the provisions of Section 8(b) (7) (C) of the Act. It seems clear enough in the light of prior decisions that this section of the Act and its subsection are to be read apart and in their entirety, and that the Congress intended to prevent an obvious situation for abuse of peaceful picketing. On the basis of all of the decisions here- 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tofore rendered in connection with this comparably new part of the Act, I think, in whole part, it is intended to correct situations such as the one evidenced in this case. What other reason would impel the Union to picket Cartage at the Riss terminal except to induce the drivers of Cartage in the course of their employment "not to pick up, deliver or transport any goods or not to perform any services" except for organizational purposes? Cartage had offered recognition and accepted recogni- tion, which the Union refused. The facts here show that the picketing by the Respondents was for organizational and recognitional purposes only, and was not confined to the "purpose of truthfully advising the public (including consumers) that an employer does not employ mem- bers of, or have a contract with, a labor organization. " I so find. N.L R.B. v. Drivers, Chauffeurs, Helpers Local Union No. 639 (Curtis Brothers), 362 U.S. 274; Getreu v. Bartenders and Hotel and Restaurant Employees Union, Local 58, etc. (Fowler Hotel, Inc.), 181 F. Supp. 738 (D.C. N. Ind.); McLeod v. Chefs, Cooks, Pastry Cooks and Assistants, Local 89, etc. (Stork Restaurant), 181 F. Supp. 742. Cf., Valley Knitting Mills, Inc., 126 NLRB 441. Upon the basis of the foregoing findings of fact, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Local 705, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Louis Peick and Joseph Desmyter , Respondents herein, are agents of Local 705 within the meaning of Section 8(b) of the Act. 2. On and after September 21, 1959, the Respondents engaged in and are still engaging in picketing the premises of Cartage Terminal and Management Corpora- tion, the Charging Party herein, with the effect to induce employees of other em- ployers in the course of their employment not to pick up, deliver , or transport any goods or not to perform any services. 3. That such picketing has been conducted and is being conducted without a petition under Section 9(c) (1) of the Act being filed within 30 days after the com- mencement of the picketing by the Respondent Union. 4. That by such picketing, the Respondents and each of them has engaged in and is engaging in unfair labor practices in violation of Section 8(b) (7) of the Act; and that the aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Orange County; Culinary Alliance Local No. 681 [Leonard Smitley and Joseph W. Drown d/b/a Crown Cafeteria, a co- partnership] and Peter W. Irwin. Case No. 21-CP-4. Febru- ary 20, 1961 DECISION AND ORDER On April 6,1960, Trial Examiner James R. Hemingway issued and on April 18 amended his Intermediate Report in this proceeding, finding that the Respondent Unions had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel filed timely exceptions to the Intermediate Report and a brief. On September 8, 1960, oral argument was held before the Board in 130 NLRB No. 68.