Teamsters Local Union No. 408, Etc.

TEAMSTERS LOCAL UNION NO. 408, ETC. 117 Teamsters Local Union No. 408, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Chas. S. Wood & Co. Case No. 22-CC-97. July 13, 1961 DECISION AND ORDER On February 6, 1961, 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 Intermediate Re- port attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the exceptions and brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' 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, Teamsters Local Union No. 408, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, representatives, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Inducing or encouraging any individual employed by any person engaged in commerce or in an industry affecting commerce, other than Chas. S. Wood & Co., to engage in a strike or a refusal in the course of his employment to perform any services, where an object thereof is forcing or requiring any person to cease doing business with Chas. S. Wood & Co. 3 Chas. S. Wood & Co. urged upon the Trial Examiner that he find the total pattern of conduct violative of the Act because of the Respondent's picketing and conduct at the Company's warehouse and office facilities The Trial Examiner rejected this contention, holding McJunkin Corporation , 128 NLRB 522, Inapposite on the facts . Absent excep- tions, we adopt the Trial Examiner's findings and conclusions in these respects pro forma. Member Brown would sustain only those alleged violations predicated on the oral appeals and picketing at the Public Service location and he would not, in any respect, rely on a Washington Coca Cola theory. 132 NLRB No. 10. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Threatening, coercing, or restraining any person engaged in commerce or in any industry affecting commerce, other than Chas. S. Wood & Co., where an object thereof is forcing or requiring any person to cease doing business with Chas. S. Wood & Co. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls, copies of the notice attached to the Intermediate Report marked "Appendix." 2 Copies of said notice shall also be posted by Respondent, subject to permission being granted by the respective authorities in charge thereof, at the Reich- hold Chemical construction site in Elizabeth, New Jersey, and at the Public Service construction site in Duck Island, Hamilton Township, New Jersey. Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by an authorized representative of Respondent, be posted by Respond- ent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-second Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. 2 This notice shall be amended by substituting . for the words "The Recommendations of a Trial Examiner" the words "A Decision and Order." 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." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly desig- nated Trial Examiner in Newark , New Jersey, on October 24 and 31 , 1960, on complaint of the General Counsel and answer of Respondent, Teamsters Local 408, more fully named in the caption. The issue litigated in the complaint was whether Teamsters Local 408 violated Section 8(b) (4) (i ) and (ii) (B) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519). At the opening of the hearing the Charging Party , Chas. S. Wood & Co., moved to amend the complaint by adding an allegation that Teamsters Local 408 had refused to bargain with Chas. S. Wood & Co . in violation of Section 8(b)(3) of the Act. General Counsel , in whom Section 3(d) of the Act vests "final authority, on behalf of the Board, in respect of the investigation of charges and issuance of com- plaints . . . and in respect of the prosecution of such complaints ...," objected to the proposed amendment . The Trial Examiner denied the motion to amend.' The Trial Examiner likewise denied a motion made by Teamsters Local 408 at the close ,of General Counsel's presentation of evidence to dismiss the proceeding for failure i It subsequently appeared that the Regional Director of the Board had earlier dis- missed an unfair labor practice charge alleging a Section 8(b)1(3) violation in this re gard. It is likewise a matter of public record that during the pendency of the hearing in the instant case, another hearing was pending based upon a complaint issued by General Counsel alleging that Chas S Wood & Co had iefused to bargain with Teamsters Local 408 in violation of Section 8(a) (5) and ( 1) of the Act. TEAMSTERS LOCAL UNION NO. 408, ETC. 119 to establish a prima facie case. At the end of the hearing Teamsters Local 408 again moved for dismissal. Ruling on this motion was reserved and is presently denied consistent with the findings and conclusions set forth hereunder. All parties argued orally after evidence was taken and thereafter briefs, which have been fully con- sidered, were filed by Teamsters Local 408 and Chas. S. Wood & Co. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. JURISDICTION Chas. S. Wood & Co., herein called Wood Company, has its main office and warehouse in West Orange, New Jersey. Its principal business is the installation of thermal insulation which is done at various construction sites in New Jersey and other Eastern States of the United States. In 1959, Wood Company purchased over $1,000,000 worth of goods and materials of which about $500,000 worth came from States other than the State of New Jersey. I find that Wood Company is engaged in commerce within the meaning of the Act. United Engineering & Constructors, Inc., Badger Manufacturing Company, Grif- fith Electric Supply Co., and Union Trucking Co., to which reference will herein- after be made, are duly organized corporations which are likewise engaged in commerce within the meaning of the Act as shown by a stipulation executed by the parties and made part of the record-herein. I find that the Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED Respondent, Teamsters Local 408, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background At its main office and warehouse in West Orange, New Jersey, Wood Company employs an office staff force consisting of sales, executive, and administrative per- sonnel. In addition to the foregoing personnel, who are unrepresented for purposes of collective bargaining, four operating employees report to work at the West Orange location. These four employees are Edward Wakeling and Herman Heller, truck- drivers, whose duties are to make pickups and deliveries between the West Orange warehouse and various construction sites where Wood Company is doing installation work; John Komar, the warehouseman at West Orange; and Paul Caputo, a part-time combination truckdriver and warehouseman. As required, Caputo performs regular truckdriver duties, works as a warehouseman at West Orange, or performs truck- driving duties within the boundaries of particular construction sites where Wood Company is operating. These four employees are represented for purposes of col- lective bargaining by Teamsters Local 408. Wood Company also has a field force which does the actual installation of thermal insulation at the various construction sites where Wood Company has a contract or subcontract for such installation. The employees in this field force are repre- sented for collective bargaining by an asbestos workers' union not affiliated in any way with Teamsters Local 408 or with Teamsters International. The employees in the field force do not report to Wood Company's West Orange office but report only to the construction sites where the installation work is being done. The events here relevant arose out of a labor dispute between Wood Company and Teamsters Local 408 respecting the four employees heretofore named whom Teamsters Local 408 represented. A collective-bargaining agreement between the parties covering these four employees expired on April 30, 1960. Negotiations for a new agreement were unsuccessful and on the morning of July 19, 1960, the four employees represented by Local 408 went on strike pursuant to a vote of the member- ship the previous night. On the morning of July 19, Anthony Cusano, president and business manager of Teamsters Local 408, sent a letter to the building trades of Essex and Union Counties, New Jersey, informing them that there was a strike and that it involved only Chas. S. Wood & Co. Picketing activities by the four strikers, authorized by Teamsters Local 408, began immediately. Thus, picketing started at Wood Company's West Orange premises on the morning of July 19 and was still continuing at the time of the instant hearing. On July 20 pickets were stationed at the Reichhold construction site, where Wood Company was doing installation work under a subcontract with Badger Manufac- turing Company which was the prime contractor engaged in the building of a plant 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Reichhold Chemical on the latter's premises. The picketing on this site con- tinued for 3 days, July 20, 21, and 22, and on the third day Teamsters Local 408 voluntarily withdrew the picket line. The only other picketing which occurred was at the Public Service construction site where Wood Company and other contractors were engaged under the supervision of United Engineers & Constructors, Inc., in building a generating station for the Public Service Gas & Electric Company. The picketing at the Public Service site occurred on August 8, 1960, and was only of several hours' duration. As in the Reichhold situation Teamsters Local 408 volun- tarily withdrew its pickets. In all three locations the pickets carried signs stating, in substance, "Teamsters Local 408 On Strike Against Chas. S. Wood & Co." The picketing at Reichhold and Public Service was peaceful and orderly. As already indicated, the Wood Com- pany employees at these two sites belonged to the field force which was represented by a union unaffiliated with Teamsters Local 408 or with the parent Teamsters International. So far as the four strikers were concerned, John Komar, the ware- houseman at West Orange, never worked at Reichhold or at Public Service, and truckdrivers Heller and Wakeling came there only in connection with pickups or deliveries. Paul Caputo, the fourth striker, occasionally did perform trucking serv- ices at construction sites. In fact, Caputo had been doing such work on the Public Service site until sometime before the strike. Thereafter and before the strike began he was assigned to truckdriver duties out of the West Orange location and was performing these duties at the outbreak of the strike. The allegations of the complaint are that Teamsters Local 408, by its picketing and related conduct at the Reichhold and Public Service sites, violated Section 8(b) (4) (i) and (ii) (B) of the Act. General Counsel neither alleged in his complaint nor relied upon the picketing and related conduct at Wood Company's West Orange premises in support of his position. Wood Company, the Charging Party, argues, neverthe- less, that under the authority of McJunkin Corporation, 128 NLRB 522, Teamsters Local 408's picketing and related conduct at West Orange, even though that location was indisputably a primary situs of the labor dispute, must nevertheless be taken into consideration as part of the "total pattern of conduct engaged in by the union." 2 Teamsters Local 408, while not disputing the basic fact pattern here outlined, denies that it engaged in unfair labor practices. A more detailed consideration of the relevant evidence follows: B. Picketing and related conduct 1. The events at Reichhold Picketing, authorized by Teamsters Local 408, began at the Reichhold con- struction site on the morning of July 20, 1960. The day before, July 19, Heller and Wakeling came to see Jack Decker, construction superintendent for Badger Manufacturing Company, the prime contractor, at the Reichhold site, told him that they were on strike against the Wood Company, and that they were going to set up a picket line. They assured Decker that the picket line was not directed against any other contractors on the project and that deliveries to or pickups from such contractors would not be affected. After the picketing started, President Cusano of Teamsters Local 408 gave similar information to John Riggi, business representative of the Laborers Union Local, and Sal Miglore, business representative of the Brick- layers Union Local, unions respectively representing employees working at the Reichhold site. Cusano told them in substance that the strike was against Wood Company only, that their men were to go through the picket line and continue working, and that their men were to "[h]onor the job, and not the picket signs." The crafts involved continued to work. The pickets, carrying signs which have already been described, patrolled at the main gate of the Reichhold construction site. Both Reichhold employees and the employees engaged in construction work used the main gate to enter and leave the premises. Deliveries were also made through this gate 3 which was located about 1,000 feet from the actual area of construction where Wood Company's full force was at work. Teamsters Local 408, however, never asked for permission to picket closer to the actual area of Wood Company's operations. When the picketing started on the morning of July 20, there was some "milling about" by employees at the main gate. However, all the crafts went to work except 2 The validity of this contention and its applicability to the instant situation will be considered later in this report s Some employees used a different entrance located near the parking lot used by em- ployees to park their cars. There was no picketing at this parking lot entrance. TEAMSTERS LOCAL UNION NO. 408, ETC. 121 for some electricians who delayed reporting for about an hour and Wood Company's employees in its field force who lost about a half day's work. Aside from the fore- going, work continued on the jobsite without interruption throughout the 3 days during which picketing was conducted. Charles A. Wood, president of Wood Com- pany, acknowledged that work on his subcontract was proceeding on schedule. Gen- erally speaking, deliveries to the Reichhold site also continued without interruption. Occasionally , truckdrivers who were making deliveries would stop upon seeing the pickets and inquire what the situation was. The pickets, pursuant to their instruc- tions from Teamsters Local 408, would reply that the strike was against Wood Company only. If the truckdrivers manifested that their deliveries were for Wood Company the pickets would ask that the truckdrivers respect the picket line. In a few instances truckdrivers left without making delivery. As stated, Teamsters Local 408, through its president and business agent, Cusano, voluntarily terminated the picketing at Reichhold on July 22, 1960, because as Cusano testified at the hearing, "putting a picket line would confuse it [sic]." No further picketing by Teamsters Local 408 has taken place at Reichhold. 2. The events at Public Service The picketing which Teamsters Local 408 authorized and conducted at the Public Service site occurred on August 8, 1960, and spanned a period of only several hours. This site, at which operations were still going on at the time of the hearing, has two gates. One gate, marked "Public Service Gas & Electric" is used only by Public Service employees and is closed when not in use by them. The other gate is marked "Construction Workers" and is used by the employees in Wood Company's field force and by the employees of the other contractors on the project. The construction gate is also used for deliveries. As already noted, Caputo worked as a truckdriver on the Public Service site until sometime before the strike when he was transferred to other duties. The picketing in which Teamsters Local 408 engaged at Public Service was con- fined to the construction gate which, as in the Reichhold situation, was located about 1,000 feet from the construction site where Wood Company's field force was at work. So far as appears, Teamsters Local 408 made no request for permission to picket closer to the actual site of Wood Company's operations. In any event, several hours after the picketing began, Cusano learned that as a result of a prior strike called by some other trade, the Public Service project had been shut down for 4 or 5 weeks and that work had just been resumed. Accordingly, Cusano called off the picket line because, as he testified, "I couldn't see any craft being on strike sup- porting us. The strike is only to the employees of Chas. Wood, only . I couldn't see the men not working again." No further picketing occurred at Public Service. As at Reichhold, Teamsters Local 408 indicated at Public Service, both by its picket signs and by oral communication, that its action was directed against Wood Company only. Work continued without any interruption at Public Service by all employees including Wood Company's field force. For the most part, deliveries to that site likewise continued to be made in normal course. However, there is credible evidence that in a few instances, at least, pickets interfered with deliveries made to contractors other than the Wood Company. Woodrow Farrell, a truckdriver for Union Trucking Co., testified that he came to the Public Service site on August 8 with a delivery of electrical materials for an electrical contractor on the site, that he asked one of the pickets who the strike was against, that he understood the picket to answer C. D. Wood, that he then asked whether any deliveries were being made, and that the picket did not answer directly but shook his head in a manner which Farrell understood as meaning no. Farrell left without making delivery. William Miklovic, a truckdriver for Griffith Electric Supply Co., testified that he, too, came to the Public Service site on August 8 with a delivery of electrical material for Public Service. According to Miklovic, he saw pickets carrying strike signs, stopped his truck outside the gate, and asked the guard on duty what the strike was about. The guard said he did not know. Miklovic then spoke to one of the strikers and asked, "Are the trucks going in?" The striker replied, "Well, you can go in if you want to. We can't stop you. But if you are ever on strike we'll do the same to you." Miklovic then drove away without making delivery.4 4 Wakeling, who was a picket at Public Service, testified that some turned away with- out making deliveries but denied that he or anyone else present at the time stopped any driver from going into the plant. Heller, who also picketed at Public Service, admitted that he talked to one or more truckdrivers at Public Service but denied that he stopped or threatened anyone with respect to their entering or leaving the plant. Neither Farrell nor Miklovic identified the pickets with whom they talked. However, so far as appears, 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The events at West Orange As already stated, Wood Company had its main office and warehouse in West Orange, New Jersey, the four strikers represented by Teamsters Local 408 regularly reported to work at this location, and it is undisputed that that location was, in labor law parlance, a primary situs of the labor dispute. Picketing began here on July 19, 1960, the first day of the strike, and was still continuing at the time of the hearing. The number of pickets varied, starting with three or four at the begin- ning and dwindling to one toward the latter months. Much of the evidence relating to the West Orange events is in sharp conflict. Charles A. Wood, president of Wood Company, testified, for the most part in general terms, that on occasion the pickets physically blocked ingress and egress from the company driveway, locked arms to keep trucks from passing through, and made abusive comments to drivers. As a result, Wood testified, practically the only trucker regularly picking up materials and making deliveries at the West Orange warehouse was Colonial Motor Hauling, Inc., a newly formed corporation, which Wood Company utilized after the strike to do the work formerly done by its strik- ing drivers. Gilbert Fehn, a Wood Company vice president, testified that in the latter part of July, a truckdriver from A. Gross Company was unable to leave the West Orange warehouse with his loaded truck because the three men who were picketing kept walking across the driveway so that there was no room to drive through. Felix Oliviero, who owned half of the newly formed Colonial Motor Hauling, Inc., the other half being owned by his two sons, also testified as to picketing and related activities of Teamsters Local 408. Felix Oliviero had formerly done land- scaping work for Charles A. Wood but, as previously noted, was retained by Wood Company upon the outbreak of the strike to do the trucking work previously done by the strikers .5 According to Felix Oliviero, on or about August 10, 1960, he and his son, Philip, drove a truck into the West Orange premises after rejecting a request by the picketer, John Komar, to support the strike by staying out. After loading the truck, the Olivieros started to drive out but Komar, according to Felix Oliviero, stood in front of the driveway, preventing their exit. Felix Oliviero testified that he then came around to the front of the truck, which his son was driving, and asked permission to go through. At that point, Felix Oliviero testified, Komar fell on top of him and cried out, "The truck hit me, the truck hit me." 6 Felix Oliviero further testified that this was the only occasion when his entry or exit to the West Orange warehouse was barred by pickets and that except for this single instance, he regularly performed his trucking services at that location with- out interruption. However, Felix Oliviero testified that on a later occasion he was followed by Komar and Amiano, acting business agent for Teamsters Local 408, until he, Oliviero, complained to a policeman, and that on the following day, while making a stop at a chemical plant, Amiano told him "there is going to be trouble if you don't cut it out. I've got friends." 4 Wakeling, Heller, Komar, and Caputo, all of whom took part in the picketing at the West Orange warehouse, as well as Amiano, who visited that scene on numerous occasions, likewise testified as to the picketing and related events at West Orange. The net of their testimony was that the picketing was peaceful and orderly, that the pickets never locked arms to obstruct ingress or egress from the Wood Company premises, and that they never threatened or abused anyone. They further testified that pickups and deliveries continued throughout the strike but that on numerous occasions when truckdrivers stopped to inquire what the situation was, the pickets told them that the strike was against Wood Company and asked that the picket Farrell and Miklovic were disinterested witnesses, their testimony was straightforward and convincing, and I find that the incidents to which they testified occurred as they related them. 6 Teamsters Local 408 sought to establish that Wood Company had a financial interest 1n, connection with, or control over, Colonial Motor Hauling, Inc, so as to preclude the latter from being deemed an independent contractor vis-a-vis the Wood Company. The evidence, however, does not warrant a finding that such a financial nexus existed. 6 Philip 011viero corroborated his father's version of this incident. a In this connection counsel for Wood Company sought to adduce evidence that Oliviero had received telephone threats, that the windshield of Oliviero's truck had been hit by a shot from an air rifle, and that someone had tried to pour a foreign substance into the gas tank of Oliviero's truck. Counsel acknowledged, however, that he had no knowledge whatever as to the perpetrators of these alleged acts. Under these circumstances, the Trial Examiner excluded the evidence but permitted an offer of proof to be made. TEAMSTERS LOCAL UNION NO. 408, ETC. 123 line be respected. Some of the truckdrivers heeded this request but the majority went through the picket line. With respect to the August 10 incident between the Olivieros and Komar, the latter in his testimony confirmed that the Olivieros had crossed the picket line despite his request to them to support the strike, and that the Olivieros had loaded their truck. His testimony as to what happened thereafter differed sharply from the Olivieros' version. According to Komar, as the Olivieros were pulling out of the driveway he was patrolling in front of the entrance. Felix Oliviero got out of truck, walked around in front of it, and pushed Komar off balance. Komar pro- tested this treatment, an argument ensued, and during the argument Philip Oliviero who was driving the truck propelled it against Komar who landed in the gutter. Komar testified further that Fehn, Wood Company vice president, came running out at that juncture, took Komar's picture as he lay in the gutter, and told Komar to send the bill to him and that he would take care of it .8 Amiano in his testimony acknowledged that he and Komar had followed Felix Oliviero on the occasion to which the latter testified. His purpose, Amiano testi- fied, was to find out where the deliveries were being made. Amiano denied, however, ever threatening Oliviero, stating to Oliviero that there was going to be trouble, or stating that he, Amiano, had a lot of friends. As the foregoing recital shows, much of the evidence is in sharp conflict. To the extent that these conflicts are material to the resolution of the issues here presented, they will be resolved in the succeeding section of this report. C. Analysis and conclusions 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 any industry affecting commerce to engage in, 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; ... . Section 8(b) (4) (i) (B) reenacts, with differences not critical here, the predecessor provisions of Section 8(b) (4) (A) of the Taft-Hartley Act, the so-called "secondary boycott" clause. Section 8(b) (4) (ii) (B), on the other hand, introduces an element not present in the predecessor provisions. Thus, under Section 8(b) (4) (ii) (B), it is likewise an unfair labor practice for a labor organization to threaten, coerce, or restrain any person (including, of course, an employer) engaged in commerce or in an industry affecting commerce where an object is forcing or requiring a cessation of business relationships as set forth in the statute. General Counsel's position, in sum, is that Teamsters Local 408, by picketing at the Reichhold and Public Service locations, common situs projects where employees of employers other than Wood Company were at work, induced and encouraged em- ployees of those employers to refuse to perform services and that an object of that inducement and encouragement was to force or require the employers to cease doing business with Wood Company, in violation of Section 8(b) (4) (i) (B) of the Act. General Counsel takes the further position that this same conduct likewise consti- tuted restraint and coercion of such employers within the meaning of Section 8(b) (4) (ii) (B) of the Act. In support of this position General Counsel shows that the real situs of the labor dispute between Teamsters Local 408 and Wood Company was at the latter's West Orange premises where the four employees represented by Teamsters Local 408 regularly reported to work. Teamsters Local 408 was entitled to, and did, picket at that location. There was no need, therefore, to invoke the lati- tude extended to a union to picket, with appropriate precautions, a primary em- ployer at a common situs. That latitude is normally extended only in situations where the dispute arises at the common situs and either a limited form of picketing must be permitted at that situs or the right to effectively picket the primary employer 8 Philip Oliviero confirmed that Fehn had taken Komar's picture. Fehn did not testify as to this incident. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must be denied altogether. In the instant case where picketing could be and was conducted at the situs where the dispute arose and where only employees of the primary employer would be directly involved, resort to additional picketing at a common situs where employees of other employers are'also necessarily affected tends to refute the notion that such picketing is intended only as an appeal to the primary employer's employees. On the contrary, General Counsel argues, it is apparent that the appeal of such picketing was not limited to the employees of the primary em- ployer, that it was intended also as an inducement to other employees to cease per- forming services for their employers, and that an object of such inducement was to force or require these neutral employers to cease doing business with the primary employer. In broad outline, General Counsel contends, this was the holding of the Board in Otis Massey Company, Ltd., 109 NLRB 275, and, according to General Counsel, that decision compels the finding of a violation here. Teamsters Local 408 defends on the ground, inter alia, that at all times when picketing was being conducted at Reichhold and Public Service, Wood Company's field force was at work on those sites; that the duties of at least three of the four employees represented by Local 408 would bring them upon those sites on occasion; and that by the legend on its picket signs and by other means Teamsters Local 408 manifested that the strike and picketing were directed only at Wood Company and Wood Company employees. Virtually identical defenses were urged before the Board in the Otis Massey case in a similar context but the Board there rejected these defenses and found that the picketing of the construction projects in that case was conducted, at least in part, to force secondary employees to cease doing busi- ness with the primary employer. In General Counsel's view, the same considera- tions would be applicable here .9 Teamsters Local 408 also depends on the ground that its picketing at Reichhold and Public Service was of quite short duration, that it voluntarily terminated that picketing, and that, in any event, the picketing had very little effect on actual working operations. Picketing, however, even when of short duration, is notoriously a potent form of inducement (Printing Specialties and Paper Converters Union, Local 388, AFL (Sealright Pacific Ltd.) v. LeBaron, 171 F. 2d 331, 334 (C.A. 9)), and it is equally well settled that the existence of such inducement is not negated because it does not succeed. N.L.R.B. v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS) ), 226 F. 2d 900, 904-905 (C.A. 2), cert. denied 351 U.S. 962. Moreover, while it may be conceded, in fairness to Teamsters Local 408, that the conduct in which it engaged at Reichhold and Public Service was less than flagrant both in its nature and effect, the issue presently posed for consideration is not the gravity of the offense but merely its existence. Upon that narrow issue the Board's decision in Otis Massey, considered together with other authorities there cited, would appear to support a finding that Section 8(b) (4) (i) (B) of the Act has been violated. See also Washington Coca Cola Bot- tling Works, Inc., 107 NLRB 299. Teamsters Local 408, however, cites and relies upon the decision of the United States Court of Appeals for the Fifth Circuit in N.L.R.B. v. General Drivers, Warehousemen and Helpers Local 968, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Otis Massey Co.), 225 F. 2d 205, cert. denied 350 U.S. 914. In that case the court denied enforcement to the Board's order in the Otis Massey case on the ground that in the court's view substantial evidence did not support a finding that the union had "an unlawful secondary object" 225 F. 2d, at 211. As the court read the Board's Otis Massey decision, the Board placed undue emphasis on the fact that the "real situs" of the labor dispute existed at a location other than that where the picketing in ques- tion took place and inferred from that circumstance that such picketing had an unlawful objective. (Id. at 209.) Here, however, it is unnecessary to explore the precise reach of principles enun- ciated in the Board's decision in Otis Massey or the extent to which the decision of the Fifth Circuit may be regarded as a repudiation of those principles. See Dallas General Drivers, Warehousemen and Helpers Local Union No. 745 (Dallas County Construction Employers' Association, Inc.), 124 NLRB 696, 697, footnote 6. For here, as in Dallas General Drivers, there is additional evidence in addition to the 9In its answer to the complaint, Teamsters Local 408 pleaded affirmatively (1) that Its actions were lawful and protected and in the promotion of its lawful interest and objectives as a labor organization, and (2 ) that Its actions were protected by the first amendment to the Constitution. The first affirmative defense does no more than state Teamsters Local 408's position on the legality of its conduct. The constitutional defense was considered and rejected by the Supreme Court in I.B.E.W., Local 501, et al. v. N.L.R.B. (Samuel Langer), 341 U.S. 694, 705. TEAMSTERS LOCAL UNION NO. 408, ETC. 125 mere existence of a separate situs which affords basis for a finding that the picketing at Reichhold and Public Service had "an unlawful secondary object." At both sites Teamsters Local 408 conducted its picketing at gates used by all the contractors and used also for deliveries. In both instances the gates were located approximately 1,000 feet from where the Wood Company operations were going on. Nevertheless, Team- sters Local 408, unlike the union in Otis Massey, made no request at Reichhold, and apparently none at Public Service, to picket closer to the actual site of the operations in which the primary employer was engaged, so as to avoid or at least abate, the involvement of neutrals. The Board has held in Columbia-Southern Chemical Cor- poration, 110 NLRB 206, at 208, that this consideration alone establishes an unlawful secondary objective. In addition, it appears that the pickets' practice of telling drivers who approached the picket line that the strike and picket line were only against Wood Company and that other operations were exempt was not always observed. Thus, as previously found, Woodrow Farrell, a truckdriver for Union Trucking Co. with a delivery for an electrical contractor on the Public Service site, received a negative or, at least a non- commital reply when he asked whether any deliveries were being made. William Miklovic, a Griffith Electric Supply truckdriver with a delivery for Public Service, was told that he could go in if he wanted to, but that if he was ever on strike, the same would be done to him. Such conduct on the part of the pickets belied the picket signs which ostensibly limited the picketing to Wood Company, and revealed that Teamsters Local 408's intention, at least in part, was to reach secondary em- ployees and their employers. See Richfield Oil Corporation, 95 NLRB 1191, 1193. Superior Derrick Corporation, 122 NLRB 52, 55-56. Teamster Local 408 cannot evade responsibility for conduct of pickets whom it duly authorized to picket. Finally, it merits note that Cusano called off the picket line at Public Service be- cause he learned that operations at that project had just resumed after a prolonged shutdown due to a prior and different strike. Cusano explained that "I couldn't see any craft being on strike supporting us. The strike is only to the employees of Chas. Wood . I couldn't see the men not working again." [Emphasis supplied.] 10 The quoted language suggests, at least, that had the prior stoppage not occurred, Teamsters Local 408 at least anticipated, if it did not actively seek, a work stoppage by all the crafts on the project. In the light of these additional considerations, therefore, I find and conclude that the actions of Teamsters Local 408 were motivated, at least in part, by an unlawful objective, and that the picketing and related conduct at Reichhold and Public Service was violative of Section 8(b)(4)(i)(B) of the Act. This same conduct necessarily amounted also to restraint and coercion of the several contractors other than Wood Company on the Reichhold and Public Service projects with an object of forcing or requiring them to cease doing business with Wood Company in violation of Section 8(b) (4) (ii) (B) of the Act. Gilmore Construction Company, 127 NLRB 541.11 There remains for consideration only Wood Company's contention that the picket- ing and related conduct at West Orange should be considered as additional ground for finding a Section 8(b) (4) (i) and (ii) (B) violation. I have already noted that General Counsel did not allege this conduct in his complaint as a basis for finding such a violation nor did he rely upon it. Under these circumstances, it might well be urged that evidence in this regard should not be deemed to be within the issues to be resolved in this proceeding. However, disposition of this matter need not be made on this procedural ground. The short of the matter is that the West Orange, premises were the real situs of the labor dispute and that Teamsters Local 408 was entitled to engage in picketing at this primary situs even though an incidental effect of that picketing would be to interfere with secondary employees or persons who sought to do business at that location. To be sure, this does not mean that Teamsters Local 408 would be entitled to engage in mass picketing, violence, or other unlawful conduct there. However, the Act itself and other relevant law pro- vides adequate sanctions for such conduct and Section 8(b)(4), as such, has never been deemed to be applicable in this regard. The Supreme Court has emphasized the specificity with which Congress outlawed particular economic weapons and the congressional scheme may not be ignored. N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Curtis Brothers), 362 U.S. 274; and see 10 At Relchhold, 'Cusano called off the picket line because he thought it would be confusing. u Alexander Warehouse A Sales Company, 128 NLRB 916, is plainly distinguishable. There, unlike the instant case, no common situs was involved and picketing was con- fined to premises utilized exclusively by the primary employer. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 498-499. Wood Company correctly argues that in Mclunkin Corporation, 128 NLRB 522, the Board did consider the nature of the picketing at the primary situs and certain other related conduct as part of the total pattern of conduct engaged in by the union. But that was a special situation. As the Board found in that case, the union, con- currently with its establishing a picket line at McJunkin, the primary situs, mailed letters to carriers with whom it had "hot cargo" agreements, advising the recipients that its members would refuse to handle goods, thus, in effect, creating an embargo. Moreover, the union in that case confined its picketing efforts to but I of 10 entrances to McJunkin's plant, that one being a trucking entrance not generally used by Mc- Junkin's employees. Accordingly, the Board found that "the immediate principal purpose" of the picketing at McJunkin was "to induce and encourage employees of other employers not to make deliveries at McJunkin's plant.. " 12 None of these considerations are present in the instant case. So far as appears, even taking into account the alleged misconduct of the pickets at West Orange (as to which, as already noted, there are, if warranted, appropriate remedies), there is no indication that anything occurred at West Orange except perhaps an overzealous exercise of the right to engage in primary picketing. None of the conduct there evinced, as did the conduct in Mclunkin, that the "immediate principal purpose" of the picketing at the primary situs was to induce and encourage "employees of other employers." Accordingly, I find that the doctrine of the Mclunkin case is inappli- cable here.13 N. THE REMEDY I have found that Teamsters Local 408 engaged in unlawful secondary activity at the Reichhold and Public Service sites, thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act. By this conduct Teamsters Local 408, in order to further its dispute with Wood Company, also adversely affected the interests of the several contractors who were engaged at those sites in operations affecting commerce, even though such contractors were neutrals to Teamsters Local 408's dispute with Wood Company. The order here recommended is designed to protect both the Wood Company and any such neutrals, as well as their employees, against a recurrence of such unlawful pressure. On the other hand, the recommended order, because of the limited nature of the violations found, is correspondingly circumscribed to encom- pass only Teamsters Local 408's dispute vis-a-vis the Wood Company. Communica- tions Workers of America, AFL-CIO and Local No. 4372, etc. (Ohio Consolidated Tele. Co.) v. N.L.R.B., 362 U.S. 479. CONCLUSIONS OF LAW 1. Chas. S. Wood & Co. is engaged in commerce within the meaning of the Act. 2. Teamsters Local 408, Respondent herein, is a labor organization within the meaning of the Act. "Even as to this holding, the Board was careful to add the caveat : "While we rely On the nature of the primary picketing as evidence of the Respondent's overall objective, we are not holding [that] such picketing, considered alone, was itself unlawful " 13 This finding renders it unnecessary to pass upon the incidents of the alleged mis- conduct of the pickets at the West Orange premises Mention may be made, however, of the most serious of those incidents, namely the fracas between Felix Oliviero and John Komar on or about August 10 On the basis of all the evidence in that regard and upon my appraisal of the demeanor of the witnesses who testified with respect thereto, I find that the more credible version was given by John Komar and that Felix Oliviero assaulted Komar. On the basis of like considerations , I do not credit Felix Oliviero's testimony that he was threatened, on another occasion and at a different location, with "trouble" by Amiano and I do credit Amiano's denial in that regard Finally, it should be noted that the status of the Olivieros as neutrals in the dispute between Teamsters Local 408 and Wood Company is not immune to challenge Although, as between Wood Company and Colonial Motor Hauling, Inc., which the Olivieros owned and operated, there was no financial nexus other than that which resulted from Wood Company's payments for truck- ing services, it is undisputed that Wood Company retained the Olivieros after the strike to do the trucking formerly done by its striking truckdrivers. To the extent, therefore, that the Olivieros were retained to do "struck work," they took on the status of "allies" of Wood Company and were equally vulnerable with Wood Company to primary picketing. General Teamsters Local No 324, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Truck Operators League of Oregon ), 122 NLRB 25, 26-27. LOCAL NO. 5895 , UNITED STEELWORKERS OF AMERICA 127 3. Teamsters Local 408 has engaged in unfair labor practices violative of Section 8(b)(4)(i) and (ii)(B) of the Act. 4. The foregoing unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions 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 any individual employed by any person engaged in commerce or in an industry affecting commerce , other than Chas. S. Wood & Co., to engage in a strike or a refusal in the course of his employment to perform any services, where an object thereof is forcing or requiring any person to cease doing business with Chas. S. Wood & Co. WE WILL NOT threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce , other than Chas. S. Wood & Co., where an object thereof is forcing or requiring any person to cease doing business with Chas. S. Wood & Co. TEAMSTERS LOCAL UNION No. 408, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , 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. Local Union No. 5895, United Steelworkers of America, AFL- CIO; United Steelworkers of America , AFL-CIO; John Ko- walski, Staff Representative of United Steelworkers of America, AFL-CIO; and Francis Brewster, President of Local Union No. 5895, United Steelworkers of America , AFL-CIO and Carrier Corporation Local Union No. 5895, United Steelworkers of America, AFL- CIO; United Steelworkers of America , AFL-CIO; John Ko- walsk, Staff Representative of United Steelworkers of America, AFL-CIO; and Francis Brewster, President of Local Union No. 5895, United Steelworkers of America , AFL-CIO and Carrier Corporation. Cases Nos. 3-CC-106 and 3-CB-439. July 13, 1961 DECISION AND ORDER On September 29, 1960, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Intermedi- ate Report attached hereto. Thereafter, the Respondents filed excep- tions to the Intermediate Report and a supporting brief. A brief was also filed by the Charging Party. 132 NLRB No. 17.