Local 810, Steel, Metals, Alloys, Etc.

LOCAL 810, STEEL, METALS, ALLOYS, ETC. 59 Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Fein Can Corporation. Cage No. 93-CC-5547. April 10, 1961 DECISION AND ORDER On October 4, 1960, Trial Examiner Arnold Ordman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and the General Counsel filed exceptions and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications noted below .2 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 the Respondent, Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Engaging in, or inducing or encouraging any individual em- ployed by Advance Trucking Corporation or by any other person I Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. 2In adopting the Trial Examiner's unfair labor practice findings, we find it unnecessary to consider the alleged violation referred to in the Intermediate Report as "The March 8 incident," as the incident is cumulative and would not affect the content or scope of the remedial order. we agree with the General Counsel that the order In the case should enjoin Section 8(b) (4) (1) and (ii ) (B) violations involving secondary employers and employees other than Advance Trucking Corporation and its employees, and we have broadened the order and corresponding portion of the notice to be posted accordingly. International Brother- hood of Electrical Workers, Local 501, et al. ( Samuel Langer) v. N.L.R.B. 341 U.S. 894, 705. Member Fanning dissents from the issuance of a broad order herein, for the reasons stated in his separate opinion in United Association of Journeymen and Appren- tices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 469, AFL-CIO, et al. (W D. Don Thomas Construct-ton Co.), 130 NLRB 1289. He affirms the Trial Examiner's recommended order. 131 NLRB No. 10. '60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manu- facture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (b) Threatening, coercing, or restraining Advance Trucking Cor- poration, or any other person engaged in commerce or in an industry affecting commerce; where, in either case, an object thereof is to force or require Advance Trucking Corporation, or any other person, to cease doing business with Fein Can Corporation. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at its offices, meeting halls, and at all places where Respondent customarily posts its notices, copies of the notice attached hereto marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Second Region signed copies of the aforesaid notice for posting by Fein Can Corporation and Advance Trucking Corporation at the Third Street Terminal and the Bush Terminal, both in Brooklyn, New York, they being willing, at places where they customarily post notices to their employees. (c) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, as to what steps the Respondent has taken to comply herewith. S 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 MEMBERS OF LOCAL 810 , STEEL, METALS, ALLOYS AND HARDWARE FABRICATORS AND WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA; AND TO AIL EMPLOYEES OF ADVANCE TRUCK- ING CORPORATION AND FEIN CAN C ORPORATION 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 induce or encourage employees of Advance Truck- ing Corporation, or of any other employer or person engaged in commerce or in an industry affecting commerce, to engage in a LOCAL 810, STEEL, METALS, ALLOYS, ETC. 61 strike or a refusal in the course of their employment to use, manu- facture, process , transport, or otherwise handle or work on any goods, articles , materials, or commodities or to perform any serv- ices, or threaten, coerce, or restrain Advance Trucking Corpora- tion, or any other employer or person; with an object of forcing or requiring Advance Trucking Corporation, or any other er_-- ployer or person, to cease doing business with Fein Ca n Corporation. LOCAL 810, STEEL, METALS, ALLOYS AND HARD- WARE FABRICATORS AND WAREHOUSEMEN, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in New York, New York, on various dates between May 23 and June 17, 1960, on complaint of the General Counsel and answer of Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent. The issue litigated was whether Respondent violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519). Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE COMMERCE FACTS Fein Can Corporation, herein called Fein, is a New York corporation with its principal office and place of business at 50th Street and First Avenue in Brooklyn, New York, where it leases a seven-story building known as the Bush Terminal. Fein was engaged at these premises in the manufacture and sale of cans and related products. Following a strike of its employees which occurred on November 16, 1959, Fein discontinued its manufacturing operations and utilized the Bush Terminal solely as a warehouse and distribution center for the sale of cans which it obtained from other sources. During the year preceding the issuance of the complaint herein, Fein purchased in excess of $50,000 worth of goods which were shipped to it from States other than the State of New York and sold in excess of $50,000 worth of goods to customers located in States other than the State of New York. Respondent admits and I find that Fein is engaged in commerce within the meaning of the Act. Fein utilizes the services of Advance Trucking Corporation, herein called Ad- vance, to furnish trucking, warehousing, and incidental services. Advance is a New York corporation engaged in local and interstate trucking and is licensed by the Interstate Commerce Commission. Advance's principal office, devoted largely to bookkeeping operations, is located at 315 W. Houston Street in New York City. Its trucking operations are conducted from a number of terminals located for the most part in the New York City area. Among these terminals are the Bush Terminal, where Fein provides space to Advance so that the latter can furnish it with truck- ing and warehousing services, and the Third Street Terminal located at 125 Third 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Street in Brooklyn, which Advance used from January 1, 1960, to about May 1, 1960, as a transfer point for the handling of Fein products. It is undisputed that Advance derives more than $50,000 annually for transporting goods in interstate commerce. I find that Advance is engaged in commerce within the meaning of the Act. I find further that the Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED Respondent has for a number of years been the bargaining representative of Fein's employees. The most recent contract between Fein and, Respondent, covering a 3-year term, expired on November 16, 1959. Respondent admits, and I find, that Respondent is a labor organization within the meaning of the Act. The employees of Advance are represented for purposes of collective bargaining by Local 807 of the Teamsters International. I find that Local 807 is a labor organ- ization within the meaning of the Act. as. THE UNFAIR LABOR PRACTICES A. The issues presented Section 8(b) (4) (i) and ((ii)) (B) of the Act, so far as here relevant, provides that it shall be an unfair labor practice for a labor organization or its agents: (4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to en- gage in, a strike or a refusal in the course of his employment . . . to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in com- merce or in an industry affecting commerce, where in either case an object thereof is: (B) forcing or requiring any person . . . to cease doing business with any other person . . . Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. General Counsel alleges that Respondent by its conduct presently to be described violated the foregoing provisions. Respondent denies that it has done so. The conduct in question arises out of picketing and related activities by Respond- ent in the vicinity of the Bush and Third Street terminals. General Counsel's posi- tion, in substance, is that Respondent, in consequence of a labor dispute it had with Fein at the time of the expiration of its contract on November 16, 1959, enmeshed Advance, a neutral in the dispute, in order to bring added pressure on Fein. Spe- cifically, General Counsel alleges in his complaint that Respondent violated the statutory provisions above quoted in that (1) Respondent on or about November 16, 1959, threatened Advance that it would stop Advance from operating if Ad- vance did not cease furnishing services to Fein; and (2) Respondent since on or about November 16, 1959, and thereafter, by picketing, requests, appeals, orders, instructions, and other means induced and encouraged individuals employed by Advance and other persons to refuse to perform services for their respective em- ployers with an object of forcing or requiring Advance and other persons to cease doing business with Fein. General Counsel at the hearing adduced evidence in support of these allegations and Respondent for its part introduced sharply controverting evidence. Respond- ent, in addition, adduced evidence in an effort to establish that Advance was not a neutral in the dispute between Fein and Respondent, that Advance was in reality an ally of Fein and/or doing Fein's struck work, hence that Advance was no less vul- nerable to otherwise lawful picketing than Fein itself, the employer with whom Respondent had its primary dispute. A summary of the relevant evidence and the findings based thereon follows. B. The evidence 1. The relationship between Fein and Advance As already noted, Fein was engaged until November 16, 1959, in the manufacture and sale of cans and related products. On that date, however, its employees went on strike, picketing ensued, and Fein terminated the manufacturing phase of its operations. LOCAL 810, STEEL, METALS, ALLOYS, ETC. 63 On the date of the strike U.S. Hoffman Machinery Corporation owned 80 per- cent of the stock of Fein Can Corporation. Presently, Fein is a wholly owned subsidiary of U.S. Hoffman Machinery Corporation. This is also true of Atlas Can Corporation which occupies the same premises as Fein and is engaged in the same operations. The parties are in agreement that Fein and Atlas may be considered for purposes of this proceeding as a single enterprise. U.S. Hoffman Machinery Corporation also owns Commercial Can Corporation in Newark, New Jersey, and Standard Can Corporation in Leetsdale, Pennsylvania. Together these four sub- sidiaries, which are engaged in substantially identical operations and, to some extent, supply the same customers, form the so-called can division of U.S. Hoffman Ma- chinery Corporation. Commercial and Standard, as their addresses suggest, operate independently of Fein and Atlas. But inasmuch as all four are affiliates of the same parent com- pany, there is some measure of integration in their activities. Throughout the period here relevant and until shortly before the instant hearing, David Rosen was general manager of all four affiliates. All four affiliates utilize Advance to furnish them with trucking services and services incidental thereto. The services rendered to Fein are pursuant to a written contract under which Fein pays Advance on a cost-plus basis for the use of the latter's equipment and personnel with a surcharge for the costs of supervision. Advance's services to Commercial Can Corporation were later in- corporated into the same contract. The arrangement between Standard Can Cor- poration and Advance was under a separate oral agreement never reduced to writing. Advance, prior to 1952, was owned by members of the Fein family who at that time also owned a substantial interest in Fein. Early in 1952, however, they sold their entire interest in Advance, including tractors and trailers, to Pasquale Chi- mento, who is now the sole stockholder in Advance and actively directs its opera- tions. The purchase price for Advance was approximately $100,000 of which all but $15,000 had been paid at the time of the hearing. Pending full payment, the Advance stock is being held in escrow. It is undisputed, however, that Fein has no financial interest, direct or indirect, in Advance. Conversely, so far as appears, neither Advance or Chimento has any financial interest in Fein or its related enter- prises except insofar as Advance renders trucking or related services for which it is duly paid. There are no common stockholders, directors, or employees as between Advance on the one hand and Fein on the other. Advance hires its own employees and takes care of their wages, tax deductions, welfare and pension funds, workmen's compensation, and related matters. Advance also furnishes all the mobile equip- ment, such as tractors and trailers, which it uses in its operations.' Insofar as Ad- vance uses its personnel or equipment on Fein activities, Fein, Advance's principal customer, pays Advance on the cost-plus basis previously described. Chimento, sole stockholder of Advance, also owns or holds a substantial interest in a number of other incorporated business enterprises. Occasionally there is an interchange of personnel and/or equipment between Advance and other Chimento enterprises. Occasionally, also, these other Chimento enterprises furnish services of various kinds to Fein or its related companies. No contention is made that Fein or its related companies have any financial interest in these enterprises or that the reverse situation obtains. Finally, there is no showing that Advance or any other Chimento enterprise ever performed work, before or after the strike, customarily performed by Fein em- ployees? On the contrary, the nature of the services performed, hereunder de- scribed in more detail, was the same before and after the strike. 2. The operations at Bush Terminal prior to November 16, 1959 As already noted, Fein prior to the strike of November 16, 1959, utilized the seven-story building at the Bush Terminal for the manufacture and sale of cans and related products. Since 1952 Fein has utilized the services of Advance for its trucking and warehousing needs. Thus, Advance took care of Fein's needs in pickup and delivery services and also did the loading and unloading and warehousing i Evidence in the record reveals that the bulk, if not all, of the tractors used by Advance in its operations are marked with its own name. The trailers, however, are variously named, some being marked , for example, "P. C. Chimento," "Fein," or "Standard." 8 On rare occasions a dispute would arise at the Bush Terminal as to whether a par- ticular operation was to be done by a Fein employee as part of Fein work or whether it fell within the area of loading and unloading services to be performed by an Advance employee. So far as appears, these infrequent disputes were amicably resolved 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Fein at the Bush Terminal. Advance furnished all the mobile equipment, furnished also the personnel to operate that equipment, and furnished, in addition, the manpower necessary for loading and unloading and warehousing services. For these purposes Advance employed a complement of about 65-70 dispatchers, plat- form men, truckdrivers, and helpers who worked at the Bush Terminal. To the extent necessary Advance also, both before and after the strike of November 16, utilized other terminals in fulfilling its commitments to Fein. So far as the operations at Bush Terminal were concerned, however, Fein pro- vided working spaces for Advance employees on the shipping platform and also on the first floor, a large portion of which was devoted to warehousing Fein products not ready for immediate shipment. Fein also furnished a small office for Advance on the first floor to meet the latter's dispatching and related needs. The upper six floors at Bush Terminal were used by Fein until the strike for production work and were manned by Fein employees. Advance employees did no production work at the Fein plant. As previously stated, Advance was compensated by Fein on a cost-plus basis pursuant to the contract between the parties. When Advance on occasion utilized equipment or personnel normally used in Fein 's work for some other purpose, an appropriate credit was given to Fein. 3. The impact of the strike on the operations of Fein and Advance On November 16, 1959, the collective-bargaining agreement between Fein and Respondent expired and Respondent called a strike.3 In consequence of the strike, Fein discontinued its manufacturing operations and from November 16 on confined its operations to the sale and distribution of cans which it obtained from other sources including, inter alia, its sister firm, Standard Can Corporation, in Leets- dale, Pennsylvania. Additional space was provided for warehousing by dismantling several of the assembly lines on the upper floors of Bush Terminal. Part of this equipment was shipped to the Commercial Can Company but according to the uncontradicted and credited testimony of David Rosen, the then general manager, that equipment was not used for production, at least not during the period here relevant. About 8 or 10 employees who had worked at Fein's prior to the strike thereafter went to work at Commercial.4 Advance, pursuant to its contract, continued to furnish trucking and warehousing services to Fein during the strike. Advance's employees, as already noted, were not represented by Respondent but by Local 807. For the first week after the strike, Advance maintained at the Bush Terminal the same complement of workers which it had maintained before the strike. Thereafter, it reduced that complement to a lesser number of workers. However, except for the fact that Fein was no longer engaged in production work, thus providing additional warehousing space for Ad- vance employees to utilize, there was no change in the nature of the work performed by Advance employees. During the course of the strike also, Advance began to use the Third Street Ter- minal as a transfer point for the handling and delivery of Fein goods. Advance employed for this purpose between 2 and 3 people who stayed at the terminal all the time and about 15 drivers. No Fein employees worked at the Third Street Terminal. Advance used the Third Street Terminal from January 1 to about May 1, 1960. 4. Picketing at the Bush and Third Street terminals As soon as the strike started, Respondent stationed pickets at the Bush Terminal and picketed those premises around the clock. Advance employees continued to work there and except for the fact that they had to cross the picket line, there was apparently no interference by Respondent for the first few weeks with their ingress or egress or with their performance of their duties. After the first few weeks, as shown hereinafter, that situation changed. On or about February 1, 1960, a number of Advance employees refused to report to work. Respondent in the course of the strike also established a picket line at the Third Street Terminal during the period when it was being used by Advance as a transfer point for the handling of Fein goods. Notwithstanding that no Fein employees s Subsequently, on February 1, 1960, Respondent also called a strike against Commercial when its contract with that company expired. 4 During the Fein strike Commercial shipped out cans which had a Fein or Atlas wrapper or label. This was a continuation of a practice engages in before the Fein strike LOCAL 810, STEEL, METALS, ALLOYS, ETC. 65 worked at the Third Street Terminal, Respondent, starting early in February 1960 and continuing until sometime in April 1960, stationed pickets there regularly from about 7 a.m. to 5 or 5:30 p.m. 5. Activities incidental to the strike and picketing a. Respondent's threat to Advance early in the strike In addition to the strike and picketing, Respondent utilized other means to exert pressure on Fein, its adversary in the labor dispute. Chimento, actively in charge of Advance's operations, testified that about a week after the strike commenced he had a conversation with Milton Silverman, Respondent's general manager, at the Fein premises in the Bush Terminal. In the course of this conversation Silverman told Chimento that Advance would be allowed to operate only a few days more and that then "Local 810 [Respondent] will stop you." Chimento replied that he would stop only if Fein ordered him to do so. Milton Silverman did not testify and Chimento's testimony in this regard stands uncontradicted on the record. I credit that testimony. b. The Chriscuolo incident Salvatore Chriscuolo, an Advance employee and a member of Local 807, testified that a few weeks after the strike began he was directed to drive a loaded trailer from the Fein plant to Kramer Brothers Terminal. En route he was stopped by a few individuals who wanted to know what he was carrying, where he was going, and why he crossed the picket line. These individuals also told Chriscuolo, accord- ing to the latter's testimony, that if he didn't take his load back to the Bush Ter- minal, he would be beaten up. A few punches were exchanged and Chriscuolo drove back to Bush Terminal. Chriscuolo could not identify the individuals involved but stated that he knew two of them worked for Fein at the Bush Terminal and that on a subsequent occasion he saw one of them on the picket line. Assuming the incident took place as Chriscuolo related-and I believe and find that it did-it bears note that his identification of the individuals involved was vague, that the incident occurred far from the struck premises and from the picket line, and that there is a dearth of evidence to establish that the conduct which took place was authorized or ratified by Respondent. c. The January 22 incident Ernest Attianese, likewise an Advance employee and a member of Local 807, testified that on January 22, 1960, he was working at the Third Street Terminal and was directed to take a tractor to the Bush Terminal. On arrival at the latter site he was told by John Fidele, Advance dispatcher, to hook up to a loaded trailer and drive back to Third Street. According to Attianese, when he made a turn into 47th Street, only a few blocks from the Bush Terminal, he was hailed by a man, later identified as Frank Zalinski, who was driving a green and white 1956 Chevrolet. Zalinski asked whether Attianese was going to Third Street and received an affirma- tive reply. Attianese kept on driving down 47th Street, but Zalinski pulled in front of him and slowly maneuvered to a stop, thus stopping Attianese in the middle of the block. Attianese yelled to Zalinski to please move, then noticed that there was another car behind him, and saw several men running from the rear of his trailer toward him. One of these men yanked the tractor door open and threw a punch at Attianese. Attianese avoided the punch, pushed the man off the tractor, and started up again pushing the car in front of him aside. He returned forthwith to the Bush Terminal where he told the police sergeant on duty 5 that he had hit a car and ran to avoid being beaten up. He then told the police sergeant he would return in a few minutes to make a full report and went in to relate the incident to Fidele, the dispatcher. Upon his return he found Zalinski talking to the police sergeant and demanding that he, Attianese, be arrested as a hit-and-run driver. Frank Zalinski, who admtited that he was an organizer for Respondent during the period here in issue and that he was active in connection with the picketing, also testified concerning this incident. According to his testimony, he was on his way to a union meeting and had one of the pickets with him in the green and white Chevrolet which, he indicated, was rented by Respondent Union. Zalinski admitted passing the truck and trailer which he said was stopped on the corner of 47th Street. " The record reveals that a number of police were usually present where the picketing was being conducted. 599198-62-vol. 131-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zalinski testified that he then proceeded slowly down 47th Street which was a cobblestone street when Attianese suddenly caught up with him in the middle of the block and hit him on the left side. Zalinksi said he was unable to pull away because the vehicles evidently had their bumpers locked, but that finally Attianese put on a burst of speed, turned Zalinski's car around and sped away. Zalinski's testimony does not, in my view, withstand scrutiny. Respondent and Zalinski as its organizer would manifestly have an interest in discouraging Advance employees and vehicles from crossing the picket line into Fein's premises. On the other hand, it is difficult to perceive any objective which Attianese could achieve by running down a vehicle even assuming that he knew, as apparently he did not, that it was being driven by a Respondent official. Moreover, the version of the incident given by Zalinski seems on its face incredible. To credit Zalinski's version would require one` to believe that Zalinski passed a stopped tractor and trailer, which was fully loaded, on the corner of 47th Street and that the tractor and trailer then started up and overtook him by the middle of the block. Assuming that Zalinski, as he testified, was driving his rented vehicle very slowly because the street was paved with cobblestones, , find that this sequence of events is nonetheless highly unlikely. I believe and find that Attianese's narration of the incident in question is accurate and I reject Zalinski's version insofar as it differs. d. The February 5 incident at Third Street Ernest Attianese testified as to a further incident about 2 weeks later on February 5. He stated that on February 5 he reported to work at the Third Street Terminal about 10 minutes before 7 in the morning. A group of pickets were outside. Atti- anese was assigned to hook up to a trailer that was pointing out the Third Street side of the terminal. Accordingly, he started to back into the trailer from Third Street but was unable to complete this maneuver because several pickets stood be- tween the tractor and the trailer. According to Attianese, the pickets told him he was hurting the people in the factory by working there. Attianese testified further that Zalinski who was present with the picketers, said to him, "Ernie, you were lucky the last time. You might not be lucky the next time." Zalinski also added, according to Attianese, "We know where you live. We know where your wife and children are." On cross-examination Attianese testified that a policeman was present during this incident but that the policeman did nothing to help even though Attianese requested him to help. Zalinski denied that he made the statements attributed to him by Attianese on this occasion. Zalinski admitted, however, that he did ask Attianese to "cooperate." At that point, according to Zalinski, Attianese got out of his tractor and said, "I am not going to back the tractor in." Zalinski testified that only he and another organizer were at the tractor and that the picket line was on the sidewalk which was blocked off by the tractor. Zalinski denied that any of the organizers or pickets were standing between the truck and the trailer. Here, as in the previous situation, I credit Attianese whose testimony was straight- forward and convincing. Insofar as Zalinski testified to the contrary, I do not credit his testimony .6 e. The February incidents near the Bush Terminal Tom Stabile has been an employee of Advance since 1956 and is a member of Local 807. On or about February 1, 1960, Stabile reported to work at the Third Street Terminal and was directed to go to the Bush Terminal at First Avenue and 50th Street. Stabile, who knew there was a strike going on at Fein's but knew also that "it didn't have nothing to do with us," proceeded to the Bush Terminal in his car. When he reached the corner of First Avenue and 49th Street, he stopped, assertedly for a stop sign,7 and his car was pelted with bricks and pipes by unidenti- fied persons hiding behind parked cars. Stabile then sped across First Avenue into the Fein premises where he parked his car. As he crossed the picket line a few of the pickets cried out, "If you come back any more we are going to ruin your car. Respondent sought to discredit Attianese as to the Third Street incident on the ground that he made no mention of it in the two affidavits he had furnished before the hearing in the instant case. However, there can be no doubt, in view of Zalinski's testimony, that the incident on February 5 did take place. 7 Stabile was sure there was a stop sign on that corner. The preponderance of the testimony on this issue, as to which several witnesses testified, satisfies me that there was no stop sign there and that Stabile was in error in this regard. LOCAL 810, STEEL, METALS, ALLOYS, ETC. 67 You will get beaten up, you guinea bastard." On subsequent occasions Stabile was called names by the pickets as he crossed the picket line on his way to work. Except for the matter of the existence of a stop sign on the comer of First Avenue and 49th Street (see footnote 7), Stabile's testimony in this regard stands uncontradicted. I credit it. A more serious incident of the same general character occurred a week or two after the February 1 incident.8 On that occasion about 8 in the morning Chimento picked up five Advance employees at Third Street and was driving them to work at the Bush Terminal. These five employees were Penna, Picciano, Pessanante, Gulino, and Stabile. Because of the situation engendered by the strike and the picketing, this mode of going to work had become quite usual. When Chimento and his five passengers arrived at the corner of 49th Street and First Avenue, a fight ensued. Stabile, Penna; and Gulino, who testified for the General Counsel, gave similar versions of the altercation, differing only in minor details. According to their testimony, Chimento came to a stop or virtually to a stop at the corner of 49th Street and First Avenue when suddenly a large number of people appeared from behind parked cars and threw bricks and pipes at the cars. Among these people, who subsequently turned out to be strikers at the Fein premises which were only one block away, was John J. Keane, an organizer for Respondent. Some of these individuals opened the car door on the driver's side and pulled Chimento out. The remainder of the passengers jumped out to defend themselves, and a general fight started. Respondent's organizer, Keane, grabbed Penna, and Rosario, one of the strikers, started hitting Penna over the head with a club or pipe. Chimento intervened and hit Rosario on the mouth. Within a few minutes a number of policemen who were on duty in the immediate vicinity of the Fein premises appeared on the scene. Rosario was taken to the hospital and was treated for injuries to his mouth. The six occupants of the Chimento car were later arrested. John J. Keane, who admitted that he was in charge of the pickets, was the only witness who testified for Respondent concerning this incident. Rosario did not testify. Keane stated that that he had made certain notes at the time and that ac- cording to his notes the incident occurred on February 16 about 9 a.m. (See foot- note 8, supra.) According to Keane, he was on First Avenue at 50th Street at the picketing site when he heard a grinding of wheels. He looked up, saw a car stopped at 49th Street and First Avenue and saw a number of men jump out of the car and run toward the building line. He stated that his view was then obstructed by parked cars but that he sensed that something was happening and yelled out that there was trouble at 49th Street. He further stated that when he arrived on the scene he found Rosario lying on the ground and saw a number of men running back toward a car which was stopped in a traffic lane. He grabbed one of these men who was holding a metal rod and held him until the police arrived. The car occupants were subse- quently arrested. Keane, who later admitted on cross-examination that he had a perjury conviction on his record, denied that the occupants of the car had been surrounded or attacked and stated that the only people he saw on the scene were the six people who had been in the car and Rosario. Later, according to Keane, some of the strikers and pickets ran up to see what was going on and quite a crowd assembled. The foregoing versions are in direct conflict in material particulars. The several witnesses for General Counsel tell substantially the same story. Keane, Respond- ent's only witness as to this incident, presents a wholly different version. The fact that Keane has had a prior conviction for perjury, though an element in the evalua- tion of his testimony, is not in and of itself conclusive on the issue of his veracity. Similarly, the fact that the police who subsequently arrived on the scene arrested only the occupants of the Chimento car is not dispositive of the issue. The only fact that is undisputed is that there was a fight. If Keane's testimony is to be be- lieved, it would appear that the six occupants of the car saw Rosario and made an apparently unprovoked attack upon him. If the several witnesses who testified for the General Counsel are to be believed they were accosted by a crowd of strikers and were merely seeking to defend themselves. I believe the latter version but with reservations. As shown by the picketing at the Third Street Terminal where no Fein employees worked, by Silverman's threat to Chimento that Respondent would stop Advance's operations, and by the Attianese incidents, Respondent's intention to stop Advance's services to Fein, and its willing- ness to implement that intention are conclusively demonstrated. The instant situa- 8 A few of the witnesses here place this date as on or about February 8. Keane, whose testimony is discussed later, placed the date as February 16. Whether the date is February 8 or February 16, however, is not material for purposes of this proceeding. 68 DECISIONS 01, NATIONAL LABOR RELATIONS BOARD tion falls in the same pattern. Accordingly, upon the whole record and upon my observation of the witnesses and my evaluation of their testimony, I find that Re- spondent's organizer, Keane, together with the Fein strikers attacked the occupants of the Chimento car. I further find, however, that while Keane and the strikers initiated the fracas, Chimento and his Advance employees anticipated the possibility of a fracas and were ready, if not eager, for it. f. The March 8 incident Another fracas occurred on March 8, 1960, and again the testimony is in con- flict. According to the testimony of Gulino and Christodoulou, they were part of a group of eight Advance employees who had gotten off the train at Fourth Avenue at 53rd Street on their way to work at Bush Terminal. As they walked toward the terminal they were met by a crowd of individuals at about Second Avenue and 51st Street and were told not to go to work that day. Angry words were exchanged and blows were then struck. Christodoulou was struck on the head with a pipe and was given medical treatment at a hospital. Ruscillo, identified by both Gulino and Christodoulou as one of the attackers and by Christodoulou as the one who struck him on the head, was later arrested. Ruscillo, who also testified, stated that he was a Fein employee and a rank-and-file member of Respondent, that he was on strike with his fellow employees, and that he engaged in picket duty. Ruscillo admitted that he was present at the March 8 incident, admitted that he was arrested, but denied that he struck anyone. Accord- ing to Ruscillo , he was present that morning at the scene of the picketing on 50th Street and First Avenue at the Bush Terminal premises. He stated further that because there were about 300 men there at the time, Respondent's organizer, Keane, at the request of the police directed the crowd to disperse. About 200 moved off in different directions. About 30 or 40, including Ruscillo walked straight up 50th Street toward Second Avenue and when they got to Second Avenue, saw "these scabs, eight of them, coming toward us." Ruscillo testified further, "We told them that there is a strike there. They started calling each other names. The first thing you know Stabile hit me." Ruscillo went on to describe the fight. The March 8 incident differs in significant respects from the February incident previously described. The altercation took place several blocks away from the picket line. I credit Ruscillo's testimony, which was straightforward and convincing, that he and his companions were on their way from the Fein premises from which they had been told to disperse and that on their way they met the eight Advance em- ployees. According to Gulino and Christodoulou, the Advance employees were told not to go to work that day. Ruscillo said they were merely told there was a strike at the Fein plant. Such remarks , unaccompanied by threats or coercion and, so far as appears, not authorized or ratified by Respondent , are not in and of them- selves violative of the Act. I credit Ruscillo's testimony , uncontradicted in this regard , that no official representatives of Respondent were present . Moreover, antagonisms were by this time rife between the two groups and the record affords insufficient evidence to determine which group started the affray. Upon due con- sideration of all the relevant testimony, I find that General Counsel has not sus- tained his burden of proving by a preponderance of the evidence that Respondent is answerable for the conduct of the Fein strikers involved in the incident of March 8. C. Analysis and concluding findings Section 8(b)(4)(i) and (ii)(B) of the Act represents a further effort by Con- gress to preserve "the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and [to shield] unoffending employers and others from pressures in controversies not their own ." N.L.R B. v. Denver Building and Construction Trades Council (Gould & Preisner), 341 U.S. 675, 692. In the instant case Respondent had a dispute with Fein whose employees Respondent represented and Respondent had a right to bring pressure to bear on Fein. But Respondent had no dispute with Advance whose employees were represented by a different labor organization. Nevertheless, Respondent brought pressure to bear upon Advance and upon Advance's employees in order to force or require Advance to cease doing business with Fein. Since Advance furnished Fein with transporta- tion and warehousing services which were essential to the conduct of the latter's business, this technique , from the point of view of Respondent , was a potent weapon to bring about Fein's capitulation . For the reasons set forth hereunder , I find that Respondent, by invoking the measures it did , violated Section 8(b) (4) (i) and (ii) (B) of the Act. LOCAL 810, STEEL, METALS, ALLOYS, ETC. 69 1. I have already found that Milton Silverman, Respondent's general manager, told Chimento early in the strike that Advance would be allowed to operate only a few more days and that then Respondent would stop Advance from operating. This conversation took place at the Bush Terminal where Advance had been operating for a number of years and where it employed a substantial complement of employees. Since Respondent had no dispute with Advance, the object and purpose of this threat was obviously to get Advance to cease doing business with Fein on penalty of a stoppage in its own operations. Chimento so understood Silverman's statement when he replied to the latter that Advance would cease rendering its services only if Fein so ordered. I find that, by Silverman's statement to Chimento, Respondent violated the express prohibition embodied in Section 8(b)(4)(ii)(B) of the Act. 2. I find further that by picketing the Third Street Terminal Respondent violated Section 8(b) (4) (i) (B) of the Act. Advance utilized that terminal from January 1 to about May 1, 1960, as a transfer point for the handling and delivery of Fein products. No Fein employees worked there. Nevertheless, starting early in February 1960 and for some weeks thereafter Respondent maintained a picket line at the Third Street Terminal. An object of that picketing, needless to emphasize, was to induce the Advance employees to cease performing services in order to get Advance to cease doing business with Fein. Authority need not be cited for the self-evident proposition that such picketing is an unfair labor practice proscribed by Section 8(b) (4) (i) (B). 3. As previously noted, Respondent from the outset of the strike picketed the Bush Terminal. Fein's place of business was located at Bush-Terminal and under normal circumstances, as General Counsel expressly conceded at the hearing, Re- spondent would have and has the right to picket those premises in furtherance of its dispute with Fein. But the normal situation did not obtain here. Advance had for years been utilizing space at the Bush Terminal in the performance of its services to Fein and, as Respondent knew, Advance maintained a substantial complement of employees at that site. In point of fact, therefore, Bush Terminal was a "common situs" at which employees of Fein and employees of Advance both worked. The fact that possession of the premises was vested in Fein under a lease does not alter this conclusion. The Board recently had occasion to reaffirm its prior holdings that the legality of picketing does not depend on where title (a fortiori, possession) to the property is vested and that the secondary boycott provisions of the Act are applicable where picketing is conducted at the situs of a primary employer's operations at which employees of a neutral employer also work. See Union de Trabajadores de la Gonzalez Chemical Industries, Inc., et al. (Gonzalez Chemical Industries, Inc.), 128 NLRB 1002. The situation here presented is not unlike the situation at a build- ing site where the general contractor who controls and works on the site also retains and furnishes work space for a subcontractor on the same site. Cf. N.L.R.B. v. Denver Building and Construction Trades Council, supra, 341 U.S. 675. This does not, of course, preclude all picketing at Bush Terminal. As the Gon- zalez case makes clear, in this kind of situation, as in all common situs situations, a labor organization may picket the primary employer with whom it has a dispute provided that it takes the necessary precautions to insure that secondary or unof- fending employers who are operating on the same site are shielded from the effect of such picketing. In other words, picketing at a common situs, to meet the require- ments of legality, must be properly limited as to time and place and sufficiently explicit as to its objective so as to make clear that its thrust is at the primary employer and not at the neutral or neutrals who also work on the site. It is un- necessary to spell out these limitations in detail. That has already been done by the Board and the courts.9 Suffice it here to note that these limitations were not met in the instant case. On the contrary, the picketing here was apparently directed, particularly after the first few weeks, against all who worked at the Bush Terminal. Nor can there be any doubt, particularly in view of Respondent's related conduct, i e., 6 See Moore Dry Dock Company, 92 NLRB 547; N L R B. v. Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc. (Howland Dry (foods ), 191 F. 2d 65, 68 (CA 2) ; John A. Piezonki d/b/a Stover Steel Service v. N.L.R.B., 219 F. 2d 879 883 (C A 4) N L R.B. v. Chauffeurs, Teamsters, Warehousemen cE Helpers Local 'Union No 135 (Hoosier Petroleum Co ), 212 F. 2d 216, 219 (C.A. 7) ; N.L.R.B v Local Union No. 55, and Carpenters' District Council of Denver and Vicinity, etc (Professional and Business Men's Life Insurance Co ), 218 F. 2d 226, 231 (C A 10) ; NLRB v Truck Drivers & Helpers Local Union No 728 etc (National Trucking Co ), 228 F. 2d 791. 796 (CA 5) . Retail Fruit t Vegetable Clerks Union, Local 1017 et al v N T B R (Crystal Palace Market), 249 F. 2d 591, 598 (C A. 9). 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silverman's threat to Chimento, the picketing at Third Street where only Advance employees worked, and Respondent's more direct and forceful efforts to stop Advance employees from rendering services to Fein , that Respondent intended its picketing at Bush Terminal as an appeal not only to Fein employees but also to Advance employees. To the extent, therefore, that Respondent's picketing at the Bush Terminal was directed at Advance employees, I find that Respondent further violated Section 8(b) (4) (i) (B) of the Act. 4. Respondent did not confine its pressure upon Advance employees to picket line activity alone. As the evidence already shows, Respondent, through its officers and agents, utilized direct appeals, threats, and even physical force to achieve its objective of disrupting the business relationship between Fein and Advance in order to bring added pressure on Fein. On the basis of the evidence already summarized above, I find that on January 22, 1960, Respondent's organizer, Frank Zalinski, accompanied by other adherents -of Respondent, stopped Attianese, an Advance employee, as he was making a delivery from the Bush Terminal to the Third Street Terminal and sought to assault him. About a week later on February 5 Zalinski, in the company of other picketers, told Attianese that he "might not be so lucky the next time." Stabile, another Advance employee, was twice accosted as he approached the Bush Terminal and on the second occasion he and five companions were attacked by a group of Respondent's adherents of whom one was John J. Keane, also an organizer for Respondent. The fact that the foregoing incidents fall into a common pattern, the fact that Respondent's organizers were participants, and that the incidents occurred in the immediate vicinity of the picketing activity render sterile any contention that Respondent should be absolved of responsibility therefor.10 I find that Respondent, by the foregoing conduct, induced and encouraged em- ployees of Advance to cease performing services for Advance with an object of forcing or requiring Advance to cease doing business with Fein. The "Ally" or "Struck Work" Defense The foregoing findings are based on the premise that Advance is a neutral in the dispute between Respondent and Fein. Respondent argues, however, that Advance is not a neutral in that Advance is an ally of Fein and/or doing Fein's struck work. The Board applies two criteria for ascertaining the existence of an ally relation- ship in controversies of this kind. See United Steelworkers of America, AFL-CIO (Tennessee Coal & Iron Division of the United States Steel Corporation), 127 NLRB 823. The first is that when a primary employer and a secondary employer are commonly owned or controlled or are engaged in closely integrated operations, they may be considered under certain circumstances as a single employer and hence allies in, or parties to, the primary dispute. The second criterion is predicated on the con- duct of the secondary employer. If the secondary employer engages in conduct in- consistent with this professed neutrality such as performing struck work which the primary employer has farmed out, it may be assumed that by knowingly engaging in such conduct, the secondary employer has abandoned his neutral status. Neither of the two criteria is satisfied here. Fein and Advance are separately owned and separately controlled. Each controls its own labor force and its own labor relations, there is no admixture of functions between the two enterprises, and their respective employees are even separately represented for purposes of collective bargaining. The status of Advance as an independent contractor performing services for Fein is not vulnerable to challenge on this record. To convert such an independent-contractor relationship into an ally relationship depriving the independ- ent contractor of the protection accorded him as a neutral would be to flout prece- dent uniformly followed since the decision of the Supreme Court in the Denver Building case, heretofore cited Accordingly, I find that no ally relationship between 10 The common pattern of conduct revealed in the foregoing incidents is reflected also in the assault on Chriscuolo early in the strike and in the fight on March 8 on 2d Ave and 51st St. between Fein and Advance employees However, the latter incidents occurred some distance away from the picketing. So far as appears also, none of Respondent's officials or organizers were present on these occasions Indeed, Chriscuolo could only vaguely identify any of his assistants. As to the March 8 incident, partisan feelings had by then become intense. Advance adherents, with justification, anticipated and, I am inclined to believe, even welcomed a fight. The record leaves me in doubt as to which group started the March 8 fracas. Under these circumstances I believe that to attribute responsibility to Respondent for the Chriscuolo Incident and for the March 8 incident solely on the ground of a common pattern of conduct would be to elevate mere suspicion, however well grounded, to the status of evidence. I decline to do so. LOCAL 810, STEEL, METALS, ALLOYS, ETC. 71 Advance and Fein can be predicated on identity of ownership or control or upon close integration of their operations. Neither is there foundation for the claim that Advance was doing Fein's struck work. Conceivably, this claim might have merit if directed at Commercial or Standard but that is not the issue here . Fein before the strike was engaged in the production and sale of cans and related products; after the strike Fein gave up its manufacturing operations and limited itself to the sale of cans which it obtained from other sources. Advance did not furnish Fein with any products for resale . Both be- fore and after the strike Advance confined itself to the loading and unloading, ware- housing, and trucking services called for by its contract with Fein . Certainly, the law does not require Advance to forgo the fulfillment of its contract with Fein merely because the latter was engaged in a dispute with its own employees, a dispute in which Advance was not a party . Advance's sole obligation was merely to refrain from doing Fein's struck work and thereby injecting itself into the dispute to Re- spondent's detriment. There is no evidence that Advance violated this limitation. Respondent, however, makes a more subtle argument. It seeks to capitalize on the fact that Fein was closely related through common affiliation with other com- panies doing the same line of work and that Chimento who owned Advance also owned or had a substantial interest in several other corporate enterprises. Respond- ent's argument, in substance, is that inasmuch as corporate enterprises owned or con- trolled by Chimento rendered services of various kinds to Fein or its related compa- nies, such services tended to detract from the effectiveness of the strike against Fein and hence deprive Chimento and through Chimento, Advance, of the neutral status to which they might otherwise be entitled . The argument muddies the question here in issue. That question framed by the complaint and the answer is whether Advance, which Respondent enmeshed in the dispute with Fein, abandoned its neutral status. The short answer to Respondent's argument is that taking all the corporate ramifica- tions into consideration, there is a complete absence of evidence that Advance, either on its own or through any Chimento -owned or Chimento-controlled enterprise, did work for Fein which Fein itself would have done but for the strike. Beyond that point, the fact that Fein or related concerns may have obtained services from Chi- mento enterprises to enable them to continue operations is here an irrelevant cir- cumstance, the more particularly because the services in question were for the most part of the same nature as those rendered before the strike and because they were, in any event, unrelated to either production or sale , the only functions in which Fein was engaged. Accordingly, I find Respondent's ally and/or struck-work defense without merit. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above , occurring in con- nection with the operations of Fein and Advance, set forth in section 1 , above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY I have found that Respondent unlawfully threatened Advance, and unlawfully in- duced and encouraged employees of Advance to refuse to perform services with an object, in both situations, of forcing or requiring Advance to cease doing business with Fein . Accordingly, I will recommend that Respondent cease and desist from such conduct. Insofar as the picketing at Bush Terminal is concerned I have found that picketing was unlawful only to the extent that it was directed at employees of Advance; picketing at Bush Terminal properly limited to confine its thrust to Fein is lawful and is not interdicted by the order herein recommended. While the argu- ments made by Respondent's counsel at the hearing suggest that Respondent might deem it appropriate to exert pressure on individuals employed by persons other than Advance in order to further its dispute with Fein the evidence in the record is in- adequate to support a finding that Respondent has done so or proposes to do so. Hence, the order here will be narrowed to the violation found. Communication Workers of America, AFL-CIO, et at. (Ohio Consolidated Telephone Company) v. N.L.R .B., 362 U.S. 479 . Finally, I will recommend affirmatively, in order to ef- fectuate the policies of the Act, that Respondent post appropriate notices. CONCLUSIONS OF LAW 1. Fein Can Corporation and Advance Trucking Corporation are engaged in com- merce within the meaning of Section 2(6) and (7 ) of the Act. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent, Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening Advance that it would stop Advance from conducting its opera- tions if Advance did not cease furnishing services to Fein , Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(4)(ii)(B) of the Act. 4. By picketing, requests, appeals, orders, physical force, and other means, Re- spondent has induced and encouraged individuals employed by Advance to cease per- forming services for Advance with an object of forcing or requiring Advance to cease doing business with Fein, thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (i) (B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] John Myers, d/b/a Myers & Camille Painters, Petitioner and Painters District Council No. 22, of the Brotherhood of Paint- ers, Decorators and Paperhangers of America , AFL-CIO, and Russell Childs and Lester R. O'Bryant, individually and as officers, agents and employees of Painters District Council No. 22 of the Brotherhood of Painters , Decorators and Paper- hangers of America, AFL-CIO. Case No. AO-35. April 10, 1961 ADVISORY OPINION This is a petition for an advisory opinion filed by John Myers, d/b/a Myers & Camille Painters. In it he alleges in substance as follows: 1. Petitioner is engaged in the business of painting, contracting and subcontracting. He has done painting for general contractors and "directly for companies engaged in interstate commerce" such as Socony Mobile Oil Company, Inc., Detroit Brass and Malleable Com- pany, Chrysler Corporation, and Prudential Insurance Company. Those general contractors for whom he performed subcontract work "held contracts for large amounts with companies engaged in inter- state commerce, and we believe it may be stipulated that such general contractors were engaged in interstate commerce." 2. During 1958, Petitioner's entire sales amounted to $21,815.63, and during 1959 to $11,326.10. Cost of materials and supplies purchased by him was approximately $2,200 in 1958 and about $5,000 in 1959, nearly all of which were purchased from local paint retailers. 3. On November 28, 1958, Petitioner brought suit against Painters District Council No. 22, of the Brotherhood of Painters, Decorators and Paperhangers of America, AFI-CIO, and Russell Childs and Lester R. O'Bryant as officers, agents, and employees of said District Council No. 22 (herein collectively called Respondents), in the Cir- cuit Court for Wayne County, Michigan. The relief sought in said suit 131 NLRB No. 17.