Local 317, Int'l Brotherhood of Teamsters, Etc.

LOCAL 317, INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1101 (A) All truckdrivers, helpers, relay drivers, driver-salesmen, ga- rage employees,' canvassers, and sales supervisors, but excluding pro- duction and maintenance employees. (B) All production and maintenance employees and engineers, ex- cluding truckdrivers, helpers, relay drivers, driver-salesmen, garage employees, canvassers, and sales supervisors. [Text of Direction of Elections omitted from publication.] are also included in the unit . The drivers voting group ( voting group A), is broader in scope than that sought by the Teamsters . However, as the Teamsters has made an ade- quate showing of interest in the broader group, we shall direct an election therein. 8 The parties stipulated to the inclusion of the garage employees. Local 317, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Iroquois Door Company. Case No. 3-CC-1$2. August 18, 1961 DECISION AND ORDER On February 23, 1961 , Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter the General Counsel filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Intermedi- ate Report, and the entire record in this case, including the exceptions and the brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, to the extent consistent with our Decision herein.' [The Board dismissed the complaint.] MEMBER RODGERS took no part in the consideration of the above Deci- sion and Order. 1 We agree with the Trial Examiner that the picketing conducted on Kuhn Road, a dead-end street, in front of Iroquois property was primary in character and protected by the Act, without reaching the question concerning applicability of "common situs" rules to the facts here involved . Even assuming that such rules are applicable in the circum- stances, as urged by the General Counsel, there is no showing on this record of an 8(b) (4) (B ) objective in the temporary stopping on Kuhn Road of trucks bound for .Chappel and Eastern We find it unnecessary to pass upon the two incidents which occurred early in the strike, on September 22 and 23, at the premises of secondary employers Goetzman & Newman and Pascarelia , as we consider these too isolated to form the basis of a finding. 132 NLRB No. 98. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INIZERMEDIATE REPORT STATEMENT OF TILE CASE Upon a charge duly filed on September 26, 1960, by Iroquois Door Company, here- inafter referred to as Iroquois or the Charging Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board, respectively, by the Regional Director for the Third Region (Buffalo, New York), issued his complaint dated November 10, 1960, against Local 317, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Respondent. The complaint as amended at the hearing alleged that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b) (4) (i) (ii) (B) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charge, the complaint, and notice of hearing thereon were duly served upon Respondent and Iroquois. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held at Syracuse, New York, on De- cember 5 and 6, 1960, before the duly designated Trial Examiner. All parties ap- peared at the hearing, were represented by counsel and afforded full opportunity to be heard, to produce, examine and cross-examine witnesses, to introduce evidence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and conclusions or both. Oral argument was waived. Briefs were received from Respondent and General Counsel on January 25, 1961. Upon the entire record in the case and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT ' 1. THE BUSINESS OF THE EMPLOYERS At all times material herein, Iroquois Door Company was and is a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material herein Iroquois has maintained a place of business at 101 Kuhn Road in Syracuse, New York, where it has been engaged in the manufacture and whole- sale distribution of wood products including doors and windows. In the course and conduct of its business operations at Syracuse, New York, during the year 1959, a representative year, Iroquois purchased goods and materials valued in excess of $500,000 of which goods and materials valued in excess of $50,000 were received directly from States of the United States other than the State of New York. Goetzman & Newman, Inc., was and is a corporation duly organized and existing by virtue of the laws of the State of New York. At all times material herein, Goetz- man & Newman, Inc., has maintained its principal place of business at West Union Street, in Newark, New York, and maintained various other trucking terminals at 916 Wolf Street, Syracuse, New York; and at 492 Oak Street, Rochester, New York; and is hand has been at all times material herein engaged at said locations in the general trucking business. At all times material herein, Tony Pascarella was and is an individual proprietor engaged in the business of general contracting and had been engaged as the general contractor in building construction work at Immaculate Heart of Mary Convent, Liverpool, New York. The Trial Examiner finds that Iroquois Door Company, Goetzman & Newman, Inc, and Tony Pascarella were at all times material herein persons engaged in commerce or in an industry affecting commerce under the Act. _ U. THE RESPONDENT Local 317, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of Iroquois. 'This term specifically Includes the counsel appearing for the General Counsel at the hearing. LOCAL 317, INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1103 III. THE UNFAIR LABOR PRACTICES A. The facts -1. Physical description of locale. A description of the Iroquois property and plant on Kuhn Road is necessary for a clear understanding of the dispute in question here. Kuhn Road is a 60-foot-wide publicly dedicated dead-end street extending some 700 feet eastward from its westerly origin at its junction - with Cadillac-Hathaway Road, the main road in this section of the city and hereinafter referred to as Cadillac Road. For the purposes of this case Kuhn Road may be said to run in an east-west direction. Although a 60-foot strip has been dedicated for Kuhn Road , the map and pictures thereof indicate that the traveled portion of said road is about a 30-foot graveled road without curb or sidewalks. The'Iroquois plant lying on the north side of Kuhn Road is the only plant on that side of the street whereas on the south side of Kuhn Road , on property not belonging to Iroquois, there are two large plants, the westerly one being a warehouse operated by Chappels and the easterly one by Eastern Freightways . All three of these estab- lishments have driveways for trucks and vehicles to and from the respective plant properties and Kuhn Road. A further description of the property owned or leased by Iroquois is also necessary here. Essentially this •property (at least at its westerly origin where Kuhn Road meets Cadillac Road at just about right angles ) is in the shape of a triangle (except the easterly boundary of the property does not complete the triangular shape). The Iroquois property is bounded on the south by the entire length of Kuhn Road from its junction with Cadillac Road excepting the most easterly 135 feet . About 15 feet north of the aforementioned junction of Kuhn and Cadillac Roads there is a railroad right-of-way crossing Cadillac Road and running eastward in approximately a north- easterly direction and thus approximately bisecting the right angle formed by the near junction of Kuhn and Cadillac Roads. So the westerly end of the Iroquois property is essentially a 45-degree angle bounded by Kuhn Road on the south, Cadillac Road on the west (for 15 feet ) and by the railroad right-of-way on the north. How- ever, as noted, the easterly boundary of the Iroquois property does not complete this idea of a triangular piece of property . The Iroquois plant lies parallel to the railroad right-of-way on approximately the easterly three-quarters of the property. This leaves approximately the westerly quarter of the property also in the shape of a triangle bounded by the plant on the east, Kuhn Road on the south and the railroad right-of- way on the north. Approximately one-half of this triangle next to the plant has been made into a paved parking lot for Iroquois employees . The other half of this triangle closest to Cadillac Road is an unimproved parking lot also used by employees , some of whom may probably be employees of other nearby establishments. There are three defined and generally used entranceways to the Iroquois property. The first of these is about 200 feet east of the Kuhn -Cadillac intersection and leads to the employees' paved parking lot. The second is about 350 feet east of said inter- section and is a circular driveway to and from the Iroquois offices. The third is about 500 feet east of said intersection and leads exclusively to the truckloading docks of the plant.2 However, as there are no curbs or gutters on Kuhn Road, and as the land is level and flat to the north of Kuhn Road without natural or manmade obstructions, a truck or car could be driven onto the Iroquois property anywhere along Kuhn Road as those persons who use the unimproved parking lot apparently do. On the south side of Kuhn Road there are four or five generally used entranceways to the facilities of Chappels and Eastern Freightways. 2. The dispute Prior to April 26, 1960,3 the employees of Iroquois had not been organized. How- ever, on that date, the Board, as a result of elections previously held, certified United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representative of all the Iroquois production and maintenance employees, and Local 317, as such representative for Iroquois' four truckdrivers. In May the production and maintenance employees represented by Sam Ruggiano, business agent of the Carpenters, went out on strike. This record does not indicate the cause or duration of this strike. 2 Apparently in honor of the plant manager , this entranceway is also known as "Croft Street." 3 All dates herein are in the year 1960 unless otherwise noted. 1104 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD At least by August 22 all the employees were back at work when Respondent's President and Business Agent Fred Maggio and Business Representative Anthony Cimilucca met with company officials to attempt to negotiate a contract for the Iroquois drivers. These so-called negotiations ended almost before they started when Iroquois refused any form of union security, the first and only demand discussed. Declaring that he had never signed a contract without a union shop yet, did not intend to start now and would strike in order to get it, Maggio walked out of the meeting with the Teamster representatives. There were no further attempts to negotiate.4 On September 13, 19 of the 34 employees employed in Iroquois began picketing, the plant. Two of the four Iroquois drivers, Phillips and Coman,5 were among the 19 strikers. The other 17 strikers necessarily must have been employees in the production and maintenance unit and, therefore, represented by the Carpenters. Carpenter Business Agent Ruggiano and Teamster Business Agents Maggio and Cimilucca were also on the picket line directing strikers on this occasion, as they each have been on numerous occasions since that time. The complaint herein alleges that certain activities of the strikers, both on the picket line on Kuhn Road and also away from Kuhn Road, violated Section 8(b) (4),(i) (ii) (B) which reads as follows: (b) 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 a person 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (u) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce where in either case an object thereof is: (B) forcing or requiring any person to cease using, selling, handling„ transporting, or otherwise dealing in the products of any other pro- ducer, processor, or manufacturer, or 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; . . . . 3. Picketing on Kuhn Road On September 13 the 19 striking Iroquois employees together with Business Agents Ruggiano, Maggio, and Cimilucca patrolled and picketed without signs along the length of Kuhn Road. No claim was made that pickets at any time blocked the road in any way. They requested fellow employees not to go to work. They flagged down all trucks entering Kuhn Road from Cadillac Road and told the drivers that Iroquois was on strike, that there were no Iroquois employees to load or unload their trucks and asked the drivers to respect their picket line. ,On September 14 or 15, a picket sign appeared reading: IROQUOIS DOOR CO ON STRIKE MEMBERS OF TRUCKDRIVERS AND HELPERS LOCAL UNION NO. 317 This was the only sign to appear on the picket line for the duration of the picketing which ended on October 25 with the issuance of an injunction. Generally the sign was stuck in the ground somewhere near the corner of Kuhn and Cadillac Roads or else by the entrance to the employees' parking lot. But on occasion one of the strikers or one of the business agents would be seen carrying it. Throughout the duration of the picketing the strikers or the business agents would flag down every truck entering Kuhn Road, inform the driver that Iroquois was on strike, and ask that the picket line be respected. Sometimes these requests were suc- cessful and sometimes not. * If either party had made such an attempt, there is a good possibility that this case would never have arisen 5 This name is also spelled "Coleman" in the transcript. LOCAL 317, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1105, As was only natural, some of the trucks, so flagged down and spoken to were not. destined for Iroquois but were, in fact, going to either Chappels or Eastern Freight- ways. Without exception these latter trucks continued on to their destinations with- out further ado after having been accosted by the strikers or business agents. General Counsel points to two separate incidents, once when Ruggiano, business agent of the Carpenters, said to a neutral driver, "Iroquois,is on strike. Now you turn around and get out of here," and on the other occasion said "turn around and get the hell out of here." On one occasion Coman, a striking Iroquois truckdriver, told a flagged-down Comstock Company truckdriver that if he went into Iroquois, he would not be a union driver. Despite the three above incidents cited by General Counsel in his brief, the Trial Examiner must find in accordance with the facts that the picketing on Kuhn Road was, at all times peaceful.6 4. The Pascarella incident Tony Pascarella was engaged at this time as a general building contractor on some building construction work at The Immaculate Heart of Mary Convent at nearby Liverpool, New York. For this work Pascarella had ordered from Syracuse Lumber Company a certain number of prefabricated window frames made by Anderson Cor- poration. The whole order, except for three window frames, had been delivered by the Syracuse Lumber Company to Pascarella. Apparently, Pascarella needed those last three frames. So on September 23 Donald J. Hayner, a representative of Anderson Corporation drove his own automobile into the Iroquois plant on Kuhn Road at a time when Cimilucca happened to be on the picket line. Neither Cimilucca nor any of the pickets made any effort to stop Hayner while he drove in, secured the three window frames, loaded them into his automobile and drove off with them. However, Walter (Danny) Phillips, a member of the Car- penters Union and formerly employed in the Iroquois production and maintenance unit, followed Hayner as he drove to the Convent. Upon arrival at the Convent, Phillips rushed up to Pascarella, the contractor, and inquired if his job was a "union job." When Pascarella stated that it was, Phillips said to Pascarella, according to the testimony of Hayner, that "the Iroquois Door Company is on strike and that he shouldn't accept delivery of these frames and that they could picket the job." Pascarella then told Hayner that he did not want any trouble and ordered Hayner to keep the frames out of there. Hayner then departed with the frames, went to a telephone, called Pascarella and told him that "this was a secondary boycott situation and that he could accept delivery of these frames " 7 Pascarella said that he did not want to have any trouble. Hayner then returned to the construction site with the three frames still in his automobile but, upon discovering that Danny Phillips and another carpenter named Alexander were at the site, made no attempt to deliver the frames there but drove to Pascarella's personal garage where he unloaded the frames. The following day Hayner returned to the construction site where Pascarella had Hayner tell Danny Phillips that he had not delivered any frames at the construction site the day before Pascarella then turned to Hayner and told him that he, Pascarella, did not need the Anderson frames anymore, that he would get them elsewhere, that he had only three or four to go, "thank you and good-by." That ended the Pascarella incident. It must be noted that the only persons involved were members of the Carpenters Union. 5. The Goetzman & Newman incident On September 22, a clearly marked Iroquois truck left the Iroquois plant for the dock of Goetzman & Newman with a shipment of material for Newark, New York. This truck was followed by a car driven by Walter Switzer who was accompanied by Walter Phillips, Art Alexander, and Jim Coman.8 In turn this car was followed by 0 One cannot, and realistically should not, expect all the niceties of "pink tea" phrase- ology on a picket line. Moreover, the Trial Examiner has even heard the word "hell" used at such social functions on occasion and, perhaps, on a limited number of occasions may have even used the word himself. Consequently he cannot believe that, in any realistic appraisal of the situation, the use of that word once during a long strike would per se change the character of an otherwise peaceful picket line and, therefore , finds, as above, that the picketing on Kuhn Road was at all times peaceful Hayner admitted that he did not practice law s Of these only the last named was a member of the Teamsters Union 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a car driven by Jim Morgan accompanied by William Craft and David Traub, all of whom were Iroquois salesmen. As the Iroquois truck backed into the dock area of Goetzman & Newman, the following cars stopped and unloaded. On the dock area and probably within hearing of some of the dock employees, Danny Phillips said "don't unload that truck. We are on strike up there. Honor our picket line." Hunter, Respondent's shop steward at Goetzman & Newman, answered "we have not received any phone call; so we will unload the material from your truck." The truck was unloaded and the material transferred to a Goetzman & Newman truck for shipment. About the time the reloading was completed, someone shouted "telephone for Hunter." Hunter went into the office and returned a few minutes later saying "I am sorry, fellows; we cannot accept your shipment" and upon being asked why, stated further, according to Traub, "I just got a telephone call from union. hall, and they have told me not to accept it." Salesman Traub then went to the office, saw Cottit, manager of Goetzman & Newman, and asked what he was going to do with the material. Cottit answered "I am sorry, I cannot accept it. . . . I have got to accept the decision of my union steward, Mr. Hunter." Traub then telephoned Iroquois Manager Laurence C. Croft who asked to speak to Cottit. During this conversation Cottit told Croft over the telephone "I must honor the decision of my union steward. If I do not, I know he will come up and close my doors. . . . I will put the material on my dock area, but I will not sign for it nor accept any responsibility." Cottit ordered the employees on the dock to unload the Goetzman & Newman truck onto which the Iroquois material had been loaded and to leave the material on the dock. Thus ended the Goetzman & Newman incident. On September 26 Iroquois filed charges of violations of Section 8(b) (4) (i) (ii) (B) for the above activities against the Carpenters Union and also against the Teamsters Union. On November 10, the Carpenters Union executed a settlement agreement with the Regional Director and the Iroquois Door Company. As a part of this settle- ment the Carpenters Union agreed to, and did, post a notice containing the following paragraphs: We will not induce or encourage any individual employed by Goetzman & Newman, Inc., or any other employer to engage in a refusal, in the course of his employment, to use, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require Goetzman & Newman, Inc., or any other em- ployer, to cease doing business with Iroquois Door Company. We will not threaten, coerce or restrain Goetzman & Newman, Inc., and Pascarella Construction Co., or any other employer, with the object of forcing or requiring it to cease doing business with Iroquois Door Company. On this same day, November 10, the Regional Director issued the complaint at issue here, admittedly based upon the identical same set of circumstances. B. Conclusions 1. Kuhn Road General Counsel maintains here that the picketing along Kuhn Road was in vio- lation of Section 8(b)(4)(i)( ii)(B) 9 In his brief General Counsel argued that: (1) The picketing on Kuhn Road' should have been restricted to the entrance ways to the Iroquois property rather than permitting the picketing and patrolling to extend throughout the length of Kuhn Road; and (2) Kuhn Road, being a dead-end street with only three commercial installations located thereon, created a "common situs" situation so that the flagging or waving down of trucks destined for Chappels or for Eastern Freightways by the pickets constituted a violation of the Act. Although ably presented, General Counsel's argument is not equally persuasive. Everyone recognizes that for the past few years the decisions of this Board have tended to become more and more restrictive in regard to the picketing of even a o Actually the charge filed by Iroquois made no such contention in regard to the picket- ing on Kuhn Road The settlement with Carpenters also failed to include any reference thereto. LOCAL 317, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1107 primary employer. As an example, these years have seen the rapid development and enlargement of the "separate gate" theory. See the General Electric case, 123 NLRB 1547, presently on appeal before Supreme Court. The same approach was evident in the Incorporated Oil case, 116 NLRB 1884, before its reversal in the courts.10 This same tendency is discernible in many other cases. It is, therefore, obvious that there has been a tendency to limit even primary picketing. In the present case it is definitely true, as General Counsel claims, that Respond- ent picketed throughout the length of the Iroquois property alongside Kuhn Road from its joinder with Cadillac Road to the easterly end of said property. Picketing was not limited to the three generally used entrances to the Iroquois property-as General Counsel claims it should have been. But the facts prove that, regardless of the fact that picketing extended the length of the Iroquois property next to Kuhn Road, the pickets were still patrolling or picketing at all times alongside of the property owned or leased by the primary employer, Iroquois, because its property extended all the way to Cadillac Road, as was finally admitted by Manager Croft." Thus in this case General Counsel is attempting (for the first time so far as this Trial Examiner can determine) to create geographical limitations as to the places where the primary employer engaged in a dispute with a certified union may lawfully be picketed and the primary dispute publicized. In the instant case no employees of so-called independent contractor neutrals are involved, as were involved in the General Electric and other "separate gate" cases. Unlike the General Electric and other "gate" cases, the present is a pure primary employer picketing case without the muddying influence from the presence of employees of so-called neutral independent contractors working upon the same premises as the employees of the primary employer. The instant case, therefore, is an attempt by General Counsel to restrict primary picketing around the premises of the primary employer where only his employees are involved. As such it is the natural development of the separate gate cases like the General Electric case and others. The trouble with the General Counsel's argument is that Respondent's pickets patrolled and picketed only around the unfenced situs of the primary dispute, the property owned or leased by the primary employer on which was located its plant from which the primary employees had left to become pickets. Thus it was at the situs of the primary dispute that the pickets flagged or waved down the drivers of trucks driving on public streets as they approached the Iroquois truck dock and spoke to them requesting them to honor the picket line. This has been recognized as lawful primary picketing ever since the International Rice Milling case, 341 U.S. 665. No case so far has found such primary picketing illegal under the Act. It is true that these trucks stopped on a public thoroughfare, which, after all, is the logical place for trucks to be in approaching the Iroquois dock. However more than trucks were involved here, for Respondent had the right to seek the assistance of their fellow primary employees who, due to the level terrain of Kuhn Road with- out natural or manmade obstacles, could, and did, enter the Iroquois premises from any portion of Kuhn Road, especially from the westerly end thereof, for the pur- poses of using the unpaved parking lot. Certainly Respondent had the right to use peaceful persuasion upon their fellow employees to join their concerted efforts against the Charging Party wherever those employees might enter the primary em- ployer's property. The Trial Examiner has found, and had his attention called to, no case making such picketing illegal. But General Counsel tries to analogize the instant case to a "common situs" situa- tion because Kuhn Road is a dead-end street with entrances to only three separate establishments so that, when the strikers would flag down trucks driving along Kuhn Road, some of the trucks which would stop in response thereto actually would not be going to Iroquois but instead would be on route to Chappels or Eastern Freightways. General Counsel's argument here is completely novel as well as being a rather radical extension of any common situs situation decided by this Board. Kuhn Road is a dedicated public thoroughfare. The three individual employers located thereon each were operating on their own separate private property. So the only thing in common here is that each of the three establishments happened to face the same public street. If this is a common situs situation, as General Counsel suggests, 10 Sub nom. Local 618, Automotive, Petroleum and Allied Industries Employees Union, AFL-CIO, etc. v. N.L.R.B. (Incorporated Oil Co.), 249 F. 2d 332 (C.A. 8). "Early in the hearing an Iroquois salesman witness at least suggested that the un- paved parking lot was not a portion of the Iroquois property . Manager Croft corrected this misapprehension 614913-62-vol. 132-71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then it becomes quite difficult to even imagine a situation which would not also qualify as a "common situs" situation so long as the establishments of two different employers could be reached by driving along the same road, albeit a public thorough- fare. The fact that Kuhn Road is a dead-end street does not make this into a common situs situation. Kuhn Road still is a public thoroughfare. The Trial Examiner cannot find under the circumstances of this case that the rules of "common situs" picketing apply to the instant case. Neither Chappels nor Eastern Freightways, the only persons who could possibly have been inconvenienced in any way by the at most momentary stoppage of the trucks headed for their establishments, have complained or been a witness here. Even General Counsel does not claim that any truck destined to or from Chappels or Eastern Freightways was in any way diverted from its path nor more than momentarily delayed while the driver was informed that Iroquois was on strike. This is no more than the usual inconvenience of any strike. The Trial Examiner is of the opinion that the attorney for Iroquois interpreted the law correctly when he failed to include the picketing on Kuhn Road in the charges filed by Iroquois, particularly when, due to the level terrain and lack of physical obstacles, trucks and cars could have entered Iroquois premises at any point along Kuhn Road. Respondent, on the other hand, argues that most, if not all, of the actors in the instances mentioned here were members of the Carpenters Union and that there is no proof that Ruggiano or other members of the Carpenters Union on the picket line were proved to be "agents" of Respondent Teamsters. As the patrolling and picketing on Kuhn Road was under the supervision of, in the presence of, and with at least the passive acquiescence of Teamster Business Agents Maggio and Cimi- lucca, the Trial Examiner considers this to be a defense without merit as to the activities on Kuhn Road. As noted heretofore, there is a proviso attached to Section 8(b) (4) (i) (ii) (B) which reads as follows: Provided, That nothing contained in this clause (B)-shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. Therefore, as the picketing on Kuhn Road was primary picketing and legal prior to the most recent amendments to the Act, the Trial Examiner must under the terms of the above proviso hold that the picketing on Kuhn Road was not in violation of the Act. Accordingly, the Trial Examiner will recommend the dismissal of the complaint insofar as it relates to the picketing on Kuhn Road. 2. The Pascarella incident Section 8(b) (4) (i) (ii) (B) permits a labor organization to approach a secondary employer through a managerial officer and request that secondary employer not to do business with the primary employer so long as no threats, restraint, or coercion is used by that labor organization. That is exactly what happened in the Pascarella incident in the instant case when Danny Phillips, a carpenter, asked the secondary owner not to accept the frames which came from the Iroquois plant because of the strike at Iroquois. For reasons of his own Pascarella decided not to accept the frames. Such a request without coercion or restraint is proper and legal under the amended Act. Actually it is even hard to find that Phillips' request of Pascarella was a request that Pascarella cease doing business with Iroquois, for the simple reason that Pas- carella was not attempting to do business with Iroquois. In fact Iroquois, or some- body, wanted to do business with Pascarella whether Pascarella liked it or not. Pas- carella was a customer of the Syracuse Lumber Company from whom he had bought the frames. Pascarella had not even thought of doing business with Iroquois-at least until Hayner, a representative of Anderson Corporation and not of either Syracuse or Iroquois, sought to place Pascarella into some relationship with Iro- quois, for reasons and purposes best known to himself, by delivering some frames out of the Iroquois warehouse to complete the order Pascarella had given Syracuse. Nonlawyer Hayner described himself as being, at the time of his attempted delivery of Iroquois material to Pascarella, the "agent" of Syracuse Lumber Company. The General Counsel's complaint, however, alleges that Pascarella was threatened and coerced "while Iroquois was attempting to deliver window frames and sashes." This seems to be almost a fatal defect between the allegations in the complaint and the facts. In legal phraseology Hayner would appear to be nothing but a "volunteer" in attempting to make a delivery to Pascarella. He certainly was not an "agent" of LOCAL 317, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1109 Iroquois. As such a volunteer, Hayner almost appears to have been trying to en- mesh Pascarella, obviously a neutral, into the primary dispute between Iroquois and Respondent. Furthermore at this point Respondent's contention that there is a failure to prove the agency between Respondent and the actors in the Pascarella incident, Walter Phillips and Arthur Alexander, both of whom were members of the Carpenters Union comes into play. This activity of Phillips and Alexander occurred miles from the picket line at the Iroquois plant and far from the sight, knowledge, or supervision of Respondent's Business Agents Maggio and Cimilucca. There is no proof that these two carpenters were authorized by Respondent to follow Hayner or to speak to Pascarella or that Respondent had knowledge of, ratified, or accepted the actions of these two carpenters in any way. For all this record shows, Phillips and Alex- ander may also have been "volunteers." There is nothing in this record to show Respondent to have been responsible for their actions away from the picket line on Kuhn Road. According to Hayner's testimony, Phillips made one remark to Pascarella which could be interpreted as coercive or threatening when he remarked "They could picket you." But in the absence of any proof of the agency of Phillips, how is this Trial Examiner to interpret what Phillips meant by the use of the word "They"- Carpenters or the Respondent? The fact that the Carpenters Union agreed to the settlement of these identical charges against it would indicate that, in the Carpenters' opinion, Phillips' "They" meant the Carpenters Union. For this Trial Examiner to hold that Phillips meant Respondent, this Trial Examiner would have to rely on a guess. That is not permissible. The Trial Examiner is convinced for the reasons stated above and, therefore, finds that the General Counsel has failed to prove a violation of Section 8 (b) (4) (i) (ii) (B) in the Pascarella incident and will recommend that this portion of the complaint be dismissed. 3. Goetzman & Newman On this occasion Walter Phillips, the carpenter, made a remark in the presence of the dock workmen which amounted to an attempt to induce and encourage em- ployees of a secondary employer to cease doing business with Iroquois when he requested those on the dock not to unload the Iroquois truck because Iroquois was on strike. If heard by the dockmen, and no dockman so testified, this remark was a clear violation of the Act despite the fact that the attempt was totally unsuc- cessful in that the dockmen not only unloaded the Iroquois truck but reloaded the material onto a Goetzman & Newman truck preparatory to shipment. Subsequently on orders of the Goetzman & Newman Manager-In-Charge Cottit, the dock workers were ordered to and did unload the Iroquois material from the Goetzman & Newman truck, returned it to the dock and Cottit refused to accept its delivery from Iroquois. There is a suggestion in the record that Respondent asked Cottit, a managerial official, to refuse this delivery but there is no showing in this record of any threats or coercion used by Respondent in making that request.1 There is no violation of Section 8(b)(4)(i)(ii)(B) by Respondent in making this request to Cottit in the absence of proof of threats, coercion, or restraint accom- panying the request. There is proof that Phillips, the carpenter, did attempt (albeit unsuccessfully) to induce the dock workers of Goetzman & Newman which is 'a violation of Section 8 (b) (4) (i) (ii) (B) if Phillips is proved an agent of a labor organization. However, there is no proof that Phillips had been authorized by Respondent to so do or that he was an agent of the Respondent here. Likewise there is no proof that the only truckdriver present at the time, Coman, was acting as agent of the Respondent so far away from Respondent's picket line. Coman appeared solely as a spectator during the whole episode. Once again this episode was one of those included in the settlement agreement entered into by the Carpenters, Iroquois, and General Counsel. General Counsel seems to consider that the statement of Hunter, allegedly Re- spondent's shop steward at Goetzman & Newman, constituted a violation by Respond- ent. As neither Cottit nor Hunter was called as a witness, there is no showing on this record that Hunter was not merely relaying the orders of Cottit to the men on the dock which would not constitute a violation of the Act. Furthermore Respondent's contract with Goetzman & Newman provided: Stewards: The Employer recognizes the right of the Union to designate a job Steward and alternate to handle such union business as may from time to time 12 Cottit did not testify. 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be delegated to them by the Union . Job Stewards and alternates have no authority to take strike action or any other action interrupting the Employer's business in violation of disagreement or any action in violation of law except as authorized by official action of the Union. The Employer recognizes this limitation upon the authority of Job Stewards and their alternates. . . . In Local 560, International Brotherhood of Teamsters, etc. (Riss and Co.), 127 NLRB 1327, the Board, reversing this Trial Examiner, held that this exact clause ,had so limited the shop stewards' authority that any statement he made would be inadmissible against his union. Being bound by Board law, this Trial Examiner imust, therefore , hold that this limitation upon the authority of Shop Steward Hunter absolves Respondent in the Goetzman & Newman incident even though Hunter be assumed not to have been relaying orders from Cottit. Thus the Trial Examiner must hold that the Respondent did not violate the Act in the Goetzman & Newman incident and will, therefore, recommend that this part of the complaint be dismissed. Upon the basis of the foregoing findings of fact , and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 317 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 2. Iroquois Door Company is engaged in commerce within the meaning of Section 2(7) of the Act. 3. Respondent Union has not engaged in any unfair labor practices within the meaning of the Act. The Trial Examiner recommends that the complaint in the instant matter be dis- missed in its entirety. Florida Steel Corporation (Florida Steel Products Division) and Herbert H. Metcalfe and Jack M . Dipolito. Cases Nos. 1,0-CA-1553-1 and 12-CA-1553-2. August 18, 1961 DECISION AND ORDER On January 16, 1961, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, finding that the, Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs. 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]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification : We agree with the Trial Examiner that the layoff of Jack Dipolito on July 29, 1960, was discriminatorily motivated and was therefore 132 NLRB No. 90.