Local 282, Int'l Brotherhood of Teamsters, Etc.

LOCAL 282 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1077 (d) Notify the Regional Director for the First Region, in writing, within 20 days from the date of this Intermediate Report and Recommended Order , what steps the Respondent has taken to comply herewith." I further recommend that the complaint be dismissed insofar as it alleges that Respondent violated the Act by the discharge of John Stuart and Carleton Tuttle. n In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interfere with , restrain, or coerce employees in the exercise of their rights to engage in concerted activities for their mutual aid and protection, by discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any like or related manner interfere with , restrain, or coerce employees in the exercise of their right to engage in, or refrain from engaging in, any or all the activities specified in Section 7 of the Act. WE WILL offer Charles Tracchia and Charles Doherty immediate and full reinstatement to their former or substantially equivalent position , without preju- dice to their seniority and other rights and privileges, and will make them whole for any loss of pay suffered as a result of their discharge. PLASTICS INDUSTRIAL PRODUCTS, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly wtih the Board 's Regional Office , 24 School Street, Boston, Massachusetts, Telephone Number, Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Precon Truck- ing Corp.; Precast Inc.; Precrete, Inc.; Concrete Conduit, Inc.; and Consolidated Edison Company of New York, Inc. Case No. ?-CC-650. November 19, 1962 DECISION AND ORDER On December 11, 1961, Trial Examiner George J. Bott 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 attached Inter- mediate Report. Thereafter, the Respondent, the General Counsel, 139 NLRB No. 92. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Charging Parties filed exceptions to the Intermediate Report and briefs in support of their exceptions. The Respondent also re- quested oral argument.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.2 MEMBER BROWN, dissenting : Precon and its parent manufacturing companies, together constitut- ing a single employer, have had a long-standing arrangement with Con Edison under which Con Edison's employees picked up and trans- ported materials purchased from the mentioned manufacturers. The practice during this same period, however, was for Precon's drivers to deliver merchandise sold to Subway Co., a subsidiary of Con Edison. In February 1961, Subway merged with Con Edison and Con Edison thereupon began picking up materials formerly delivered to Subway by Precon drivers. In June and July 1961 negotiations for contract renewal occurred between Precon and Respondent, the latter being the bargaining rep- resentative of Precon's drivers. Respondent proposed and struck for a contract provision to the effect that Precon drivers, when available, would deliver all merchandise sold by Precon' s manufacturing associates. Despite the fact that Respondent merely was bringing economic action against Precon in an effort to protect the jobs and job oppor- tunities of Precon's own employees in Precon's own contract unit, my colleagues hold such conduct unlawful. For reasons fully set forth in prior decisions, I must dissent 3 1 Because, in our opinion, the record , exceptions , and briefs adequately set forth the issues and positions of the parties , this request is hereby denied. z The Appendix attached to the Intermediate Report is modified by deleting the word's "60 days from the date hereof" In the next to the last sentence of said notice and Insert- ing in its place the words "60 consecutive days from the date of posting. . . . The Appendix is amended further by adding : "Employees may communicate directly with the Board's Regional Office, 745 Fifth Avenue, New York, New York, Telephone Number, Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions." eLocal 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry, etc. (Arthur Venneri Company ), 137 NLRB 828 (dissenting opinion of Member Brown ) ; Local 1066, International Longshoremen's Association, AFL-CIO, at al (Wiggin Terminals, Inc.), 137 NLRB 45 (dissenting opinion of Members Fanning and Brown ) ; International Longshoremen's Association, AFL-CIO, et at. ( The Board of Harbor Commissioners ), 137 NLRB 1178 (dissenting opinion of Member Brown). LOCAL 282 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1070 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Precon Trucking Corp.; Precast Inc.; Precrete, Inc.; Concrete Conduit, Inc.; and Consolidated Edison Company of New York, Inc., herein called Precon, Precast, Precrete, Concrete Conduit, and Con Edison, respec- tively, the General Counsel of the National Labor Relations Board issued a com- plaint dated August 18 , 1961, alleging that Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , herein called Respondent or Union, had engaged in and was engaging in unfair Labor practices affecting commerce within the meaning of Section 8(b) (4) (i ) and (ii) (A) and (B) of the National Labor Relations Act, as amended . Respondent filed an answer in which it denied the commission of any unfair labor practices . Pursuant to due notice of hearing, the matter was heard before Trial Examiner George J. Bott on October 10, 11, 12, 13, 19, and 20 , 1961, in New York, New York. All parties were represented at the hearing. The parties argued orally at the close of the hearings and briefs have been received from General Counsel , the Charging Parties, and Respondent which have been considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE NATURE OF THE CHARGING PARTIES' BUSINESSES A. The jurisdiction of the Board Precast, Precrete, and Concrete Conduit are New York corporations engaged in the city of New York in the manufacture and distribution of prefabricated con- crete products. In the operation of their respective businesses each annually ships products valued at in excess of $50,000 outside of the State of New York. Precon is a New York corporation engaged in the city of New York as a truck- ing company. In the course of its business Precon annually transports across State lines products valued in excess of $50,000. Con Edison is a New York corporation engaged in the business of furnishing public utility service. In the course and conduct of its operation Con Edison an- nually receives gross revenues in excess of $1,000,000. I find that Precast, Precrete, Concrete Conduit, Precon, and Con Edison are engaged in commerce within the meaning of Section 2(6) and (7) of the Act B. The "single employer" issue Respondent contends that Precast, Precrete, and Concrete Conduit, which manu- facture prefabricated concrete products used in construction work, and Precon which transports the products manufactured, are a "single employer" within the meaning of Board decisions. General Counsel takes the position that the relation- ship of the companies is "irrelevant" but argued, nevertheless, that the location of union pickets at the manufacturing companies rather than at the trucking company during one stage of the strike is evidence of the Union's illegal object. If this is so, then the single or multiple nature of the companies is relevant and material for if they constitute a "single employer" within the meaning of the cases then the Union could picket any of the four under the same conditions as govern primary picketing generally.' Precast, Precrete, Concrete Conduit, and Precon are commonly owned and con- trolled. The principal stockholders in each are Innis O'Rourke, his father and brother, and Vincent De Napoli and Vincent Tully. With very minor variations the officers of the four companies are the same and they have the same board of directors. Innis O'Rourke is president of Precast, Precrete, and Precon and vice president of Concrete Conduit. O'Rourke is the operating head of all four com- panies and makes all policy decisions regarding labor relations. He also makes all other policy decisions subject to approval of the board of directors. As indicated above the three manufacturing companies are all engaged in es- sentially the same line of business and Precon is the transportation arm of the business. About 95 percent of Precon's total business is obtained from the trans- portation of the manufacturing companies' products. I International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Work- ers of America, AFL-CIO, Local No. 366 (Adolph Coors Company), 121 NLRB 271, 276, enforcement denied 272 F. 2d 817 (GA. 10). 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Prior to November 1959 the manufacturing companies made deliveries with chauffeurs on their respective payrolls and were under contract for the chauffeurs with the Union. Precon was formed in November 1959 to provide trucking serv- ices for the manufacturing companies and the Union then signed an agreement with Precon covering the same classification of employees previously covered by the agreement with the manufacturing companies, namely, chauffeurs. James Harlin, who negotiated with the Union in the instant case, is superintendent of Precon and Precast and in the past has been superintendent of each of the four companies at some time. He reports directly to Innis O'Rourke. The four com- panies are all located in the same general area. I find that Precast, Precrete, Concrete Conduit, and Precon constitute a single employer within the meaning of the Board decisions interpreting the Act .2 II. THE LABOR ORGANIZATION INVOLVED Respondent, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the mean- ing of the Act. III. THE UNFAIR LABOR PRACTICES A. Background of the dispute and events prior to the strike The labor dispute and alleged unfair labor practices in this case are substantially rooted in the method by which the manufacturing companies' 3 products are de- livered to their customers When the manufacturing companies bid on a job they offer the customers an option of delivery by the manufacturer or of picking up themselves. If the customer elects to have the material delivered the manufacturer adds the cost of delivery to the bill. Con Edison is the largest customer of the manufacturing companies. In the last year 70 percent of Concrete Conduit's and .90 percent of Precast's business was with Con Edison. Once a year Con Edison's construction department estimates the amount of prefabricated concrete it will need for a period of from 12 to 15 months and notifies the purchasing department to make term contracts with the manu- facturing companies. Term contracts are in evidence and were in existence at the time of the events described in this case. The contracts provide, and it is Con Edison's general practice, to pick the prefabricated material up with its own equip- ment at the manufacturer's yard. However, about 10 percent of the materials purchased by Con Edison are delivered by the manufacturers. Prior to February 1961, Consolidated Telegraph and Electrical Subway Com- pany, herein called Subway Company, was engaged as a wholly owned subsidiary of Con Edison building underground structures in the boroughs of Manhattan and Bronx for the Edison Company. Subway Company purchased concrete products from the manufacturing companies and the employees of the manufacturing com- panies delivered the products to the jobsites and yards of the Subway Company. In February 1961 Subway Company merged with Con Edison and since that time the trucking of products and materials formerly utilized by Subway Company has been done by trucks belonging to Con Edison. After Precon was formed in November 1959 a contract with Respondent Union was executed covering the chauffeurs previously employed by the manufacturing companies. These employees had also been members of Respondent and covered by contract while employed by the manufacturing companies. Twelve drivers appear on Precon's seniority list and are involved in this case. According to James Harlin, superintendent of Precon and Precast, company truckdrivers first expressed their discontent about the impact on them of the com- panies' delivery practice in February 1961. Harlin testified without contradiction that John Brady, shop steward, told him that the drivers felt that "they were losing a great deal of time" because "Consolidated Edison was hauling the greater per- centage of the product. Brady asked Harlin if Precon could make "some effort to see that the men were more steadily employed by taking over some of the trucking that Edison was doing." Harlin explained to Brady that the manner of delivery was controlled by Con Edison by contract. He suggested to Brady that he consult the Union's business agent and bring the matter up in a more formal way. 9 Alexander Warehouse A Gales Company, 128 NLRB 916 sAlthough I have found the manufacturing companies and the trucking compsnv to be a single employer within the meaning of the Act , they will sometimes be referred to for the purpose of clarity as the manufacturing companies or trucking company as the case may be LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1081 Sometime in March 1961, William McKee, business agent for Respondent, ap- peared at the Precon garage and spoke with the drivers. McKee then met with Superintendent Harlin and, according to Harlin, spoke along the same lines as Brady previously had. Regarding this conversation, and all subsequent conversations between the parties, the witnesses in their testimony tended to emphasize those facts which supported their respective theories of the case. The employer witnesses, for example, stressed any mention of Con Edison, and Respondent's witnesses under- scored the drivers' concern about loss of work without any particular reference to what companies or employees were actually doing the work. Since the Act interdicts conduct where "an object" is the cessation of business with another the emphasis is understandable but sometimes confusing.4 In any event, regardless of the "object" of the Union in its demands and strike discussed below, realistically Con Edison's business dealings with the manufacturers were ever present in the minds of all parties and were discussed by them. The legal effect of this remains to be seen but must be kept in mind in finding the basic facts. About the Harlin^McKee conversation in March 1961, I find as follows: McKee told Harlin that the drivers had complained about not getting enough work. He then told Harlin that he had an understanding going back many years with a Mr. Murphy of the construction department of Con Edison that maintenance work would be done by drivers of Con Edison but that delivery to new construction work by members of Respondent Local 282. Harlin told McKee if such agreement existed McKee should get in touch with Con Edison and not the manufacturing companies. McKee asked Harlin to speak with O'Rourke and "any of the contractors, including Edison " in an effort to determine if Precon's drivers could get more work. Harlin protested that the manufacturing companies were in no position to decide how their products were to be delivered since they had contracts with Con Edison which had a substantial period of time to run. Harlin suggested that McKee meet with President Innis O'Rourke and view the purchase orders which controlled the com- panies' method of delivery. Later that morning McKee met with Harlin and O'Rourke and was shown typical purchase orders regulating the delivery of the products. McKee again mentioned his alleged agreement with Murphy of Con Edison and made an unsuccessful at- tempt to reach him by telephone from O'Rourke's office. McKee and O'Rourke discussed the possibility of having the manufacturing companies' drivers transport material which Con Edison transported with its own drivers and trucks and O'Rourke said he would talk to Con Edison representatives to see if such an arrangement could be made. About 3 weeks later Harlin asked McKee if he had been able to reach Murphy about the delivery problem but McKee replied that he had been unsuccessful. In this conversation McKee told Harlin, according to Harlin that he had instructed the trucking company's drivers to follow Con Edison trucks to the delivery point to determine whether the job was being done by a general contractor and to report to him so that McKee could make an effort "to do something about the delivery of the products," such as picketing the jobsite. McKee admitted his suggestion about following trucks but denied any reference to picketing. Employee Dolan, one of Respondent's witnesses, admitted that the remark about picketing was made by McKee and I find that it was. No strikes or picketing involving construction work, however, occurred. B. Negotiations for a new contract, the demands involved therein, and the strike of July 3, 1961 The Union's contract with Precon covering the drivers expired on June 30, 1961. On June 26 and 28, 1961, the Union represented by Business Agent McKee, and employees Dolan and Bukowski, members of the wage committee, met with James Harlin to negotiate a new contract. During the negotiations the parties agreed upon all important issues except wages and certain union proposals relating to the method of delivery of the Company's products. On the following day, June 30, 1961, the Company presented a counterproposal which was voted on by the drivers. The employees were willing to accept the Company's monetary proposal but turned the full counterproposal down because it did not contain adequate coverage of their demands concerning the delivery of the Company's products. On July 3 the Union struck and picketed the premises of the Company effectively stopping delivery. N.L.R.B. v. Denver Building and Construction Trades Council et al (Gould & Preisner), 341 U.S. 675, 689 ; Retail Clerks Union Local 770, et al, v. N.L.R .B., et al., 296 F. 2d 368 (C.A D C.). 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel alleged in his complaint that the Union in its negotiations demanded and on July 3 struck for certain clauses in violation of Section 8(b) (4) (i) and (ii) (A) and (B) of the Act .5 The clauses as set forth in paragraph 11 of the complaint are: (a) All men and equipment hired must have agreement with Local 282, I.B.T. Any work sublet by employer must be delivered by Employer's trucks and employees. (b) Employer shall not employ additional drivers and helpers or any utility corporation trucks nor shall Employer employ outside truckmen or outside drivers unless drivers and helpers on Employer's seniority list with suitable equipment are working, nor shall any material leave the yard until such men are working. No Hi-Lo is to operate outside the yard unless seniority list is exhausted. At the outset there is a dispute about what demands were actually in issue at the time of the strike which must be resolved before the legal consequences of the de- mands can be considered. The Union concedes that provision (b) of paragraph I1 of General Counsel's complaint, set forth above, was demanded by it as a condition of a new contract but denies that the provision "All men and equipment hired must have agreement with Local 282, I.B.T." was an issue in or a cause of the strike. I find in accord- ance with the Union's contention for the following reasons. In the first place, I think it likely that a lack of precision existed in the negotiations and the conversations of the parties immediately prior to the strike caused by para- graph numbering of the Union's major demands and subsequent changes in their numerical designations. Whether or not this actually happened, I am convinced that by the time the witnesses testified at the hearing in this case some of them were thoroughly confused by the numerical headings of the proposals in issue. The Union's demands which are in issue here were first entered in an ordinary copybook by employees as paragraphs numbered 14 and 16 and given to McKee who added some language of his own to paragraph numbered 16. 5 The pertinent sections of the Act provide: 8(b) It shall be an unfair labor practice for a labor organization or its agent- s * * * x e (4) (1) to engage in, or to induce or encourage any individual employed by any per- son engaged in commerce or in an industry affecting commerce to engage in, a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, material's, or commodities or to per- form 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 (A) Forcing or requiring any employer to enter into any agreement which is prohibited by Section 8(e) ; (B) Forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufac- turer, or to cease doing business with any other person, Section 8(e): It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, trans- porting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting or repair of a building, structure, or other work, Provided further, That for the purposes of this subsection (e) and section 8(b) (4) (B) the terms "any employer", "any person engaged in commerce or an industry affecting commerce" and "any person" when used in relation to the terms "any other producer, processor, or manufacturer,", "any other employer", or "any other person" shall not include persons in the relation of a jobber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manu- facturer or performing parts of an integrated process of production in the apparel and clothing industry: Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1083 When negotiations began the copybook was in the possession of both sides and McKee bargained on the basis of the old contract and the demands in the book. As he read out proposals Harlin made notes as did McKee. Harlin's original set of notes are in evidence. On direct examination Harlin testified from his original set of notes and stated that the cause of the strike was the Union's insistence of paragraphs numbered 22 and 24 of his notes. Paragraph numbered 22 appears to be essentially provision (b) in paragraph numbered 11 of the complaint and Harlin's 24 read "All men and equipment hired must have agreement with Local 282." However, Harlin had drawn a line in his notes from paragraph numbered 24 to paragraph numbered 25. The latter paragraph read, "Any work sublet by employer, his trucks and men to deliver." Harlin testified that, in his view, paragraphs num- bered 24 and 25 amounted, in substance, to one and that by drawing the connecting line it was his intention to make them one. During Harlin's cross-examination it appeared that Harlin had subsequently made a second set of notes during the bargaining setting down the Union's demands. Un- fortunately, however, Harlin had renumbered the controversial demands as para- graphs numbered 24 and 26 and used number 24 twice. Paragraph numbered 26 in this set of notes is the demand about work "sublet." One paragraph numbered 24 is the demand "All men and equipment hired must have agreement with Local 282" but another paragraph, also numbered 24, is the demand which is essentially provision (b) of paragraph numbered 11 of the complaint. Paragraphs numbered 24 and 26 of McKee's bargaining notes are essentially the same as Harlin's second set except that McKee has the provision "All men and equipment hired must have agreement wtih Local 282" as the last sentence of his paragraph numbered 24 which is the paragraph restricting the pick up of company products by outside companies unless certain conditions are met. To compound the chance of confusion there is in evidence an exhibit used in the Sec- tion 10(1) injunction proceeding which purports to the Union's proposals 24 and 26 used in the negotiations but this exhibit contains no reference at all to the pro- vision "All men and equipment hired must have agreement with Local 282." Harlin insisted in his testimony that McKee and the employees rejected the com- pany counterproposal because it did not contain the Union's proposal that "All men and equipment hired must have agreement with Local 282 " I think he was confused by the paragraph numbers given the proposals as well as the habit those involved developed of referring to proposals by number rather than content. Har- lin first testified, using his original notes, that McKee turned the Company's counter- proposal down because it did not contain 22 and 24. But by the time the counter- proposal was made, which was after the second bargaining session and just before the strike, Harlin had renumbered the paragraphs in question to 24 and 26 and McKee had done the same. The probability, therefore, is that when McKee ob- jected to the Company's failure to include paragraphs in its counterproposal by number it had to be paragraphs numbered 24 and 26 and not 22, 24, or 25, for those numbers were no longer being used as paragraph designations In this view, McKee's refusal of the Company's counterproposal because it did not contain para- graphs numbered 24 and 26, as Harlin subsequently testified, could logically be based on the omission from the counterproposal of the provision "Any work sublet by our Employer our trucks and men shall do the trucking." (Paragraph num- bered 26 of McKee's notes and Harlin's second set) and a longer clause, as set forth in General Counsel's complaint, to the effect that the Company could not employ outside utility trucks until its men and equipment were employed (paragraph numbered 24 of McKee's and Harlin's second set of notes). The last restriction, as all parties agree, was the major issue in the bargaining and remains so today, and it is most likely that McKee was referring to it rather than anything else. It is true that McKee's paragraph 24 did contain a reference to using only Local 282 men but I find that this problem had dissolved in the bargaining, at least by the time the Company made its counterproposal on the morning of June 30. McKee testified that he dropped the "Local 282" demand very early in the negotiations when Harlin questioned its legality. I do not accept his version entirely for, as stated, his notes show that such demand was still alive during the June 30 bargaining. However, the Company in its counterproposal offered that the con- tract contain a provision that all men and equipment hired be covered by contract with the "Teamsters " The record shows that thereafter there was no objection to this counterproposal or any discussion of it on the morning the employees voted on the company counterproposal. In my opinion, this issue, which was only a minor one at best in the light of the other provision concerning the delivery prob- lem, dropped out of the case. Indeed, O'Rourke testified that the "Local 282" 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matter was not a real "bone of contention" but that the real issue was the provision about utility corporations picking up purchased products. Finally, it is significant that Harlin did not testify in the injunction case in district court that the "Local 282" provision was a cause of the strike even though he was asked, and the exhibit headed "Union Proposal" used in the injunction proceeding makes no reference to the Union's "Local 282" demand. I find, therefore, that General Counsel has not established by a preponderance of the evidence that Respondent threatened to strike or did strike for the clause "All men and equipment hired must have agreement with Local 282, I B.T." The Union concedes that it demanded and struck for inclusion of clause (b) in the contract as alleged in paragraph numbered 11 of General Counsel's com- plaint set forth above. It contends, however, that the Union's purpose was to achieve job protection of the job opportunities of the employees employed by Precon in the collective-bargaining unit and that the strike was, therefore, a lawful primary strike that involved only lawful primary picketing. It is the position of the General Counsel that the clause, taken in context with the "dispute" between the Union and Con Edison, and in the light of Respondent's explanation of the purpose of the clause, is proscribed by Section 8(e) of the Act. He argues that the clause, "if implemented in accordance with Respondent's stated purpose, would not have the effect of preserving for the unit of Precon chauffeurs work traditionally or regularly performed by said employees; rather the agreement sought by Respondent would have the effect of forcing Precon and the three manu- facturing companies involved herein to cease doing business with Con Edison unless Con Edison agreed to accept deliveries by Precon employees instead of continuing to use its own drivers to pick up the concrete materials. Therefore, by threatening Precon officials with a strike and picketing and by engaging in a strike and picket- ing . . . with an object thereof to force and require Precon to enter into an agree- ment . . ." containing the clause in question and to force Precon, Precast, Precrete, and Concrete Conduit to cease doing business with Con Edison and other persons, Respondent, he asserts, violated Section 8(b)(4)(i) and (ii) (A) and (B) of the Act. It is probably an oversimplification to say that the Union had a "dispute" with Con Edison and that the manufacturing companies were "neutral" or that Con Edison was the "primary employer" and the others "secondary." Treatment of cases arising under Section 8(b)(4) of the Act readily leads to semantic excursions. So danger also lies in a quick determination of whether the employees' purpose in striking was "job protection" or had as "an object" disruption of their employer's business dealings with Con Edison. It seems to me that in a real sense both con- siderations were in mind, as they must have been, for the employees were not blind to Con Edison and others picking up materials while they remained idle .6 Considering the employees' and their own employers' relationship it must be recalled that the first expression of a grievance was in Shop Steward Brady's com- plaint to Harlin in February 1961 that the men were "losing a great deal of time" and his request that the employer make some effort "to see that the men were more steadily employed. ." In addition, the factors which control the employees wages and other benefits under their collective-bargaining contract must be stressed. The drivers are required to report for work and to "shape up" for work at the employer's premises every day in order to remain on the seniority list. If there is no work for them when they report they are not paid for that particular day Moreover. the number of days worked by an employee in a certain period of time as, for example, a week, a quarter, or a year, determines his eligibility for benefits such as holiday pay, pensions, vacations. and hospitalization. Durinrz the vacation year 1960 and 1961 certain drivers found that they had worked fewer days than in the previous year. Although the men shaped up steadily they were not used but customers came to the premises with their own equipment and picked up the product. Some of the loss of employment may have been attributable to bad weather. but there is no doubt, and I so find. that Con Edison picked up products after its mercer with the Subway Company that the emnlovees of Precon would have delivered but for the merger. The losses to the employees were real and whatever their causes the employees had a legitimate interest in trying to protect themselves against any additional losses, and, indeed. to secure more work for themselves if they could In this sense the employees had a real grievance vis-a- vis their own employer. The men complained of this problem among themselves as well as to their employer, and also told Business Agent McKee about it who told them to wait until contract negotiations. The drivers had a meeting and drew up O Testimony of Dolan, Hart, and Bukowski. Although economic necessity may not Justify violations of the Act as General Counsel states in his brief, it certainly, in my view, Is evidence bearing on motive. LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1085 certain demands aimed at the delivery problem which they turned over to McKee. McKee added a few words to one of the demands and, in substance , they appeared in ,the subsequent bargaining as the clause (b) set out above which General Counsel contends is prohibited by section 8(e) of the Act. On the other hand, despite the root of the clause in the drivers' grievance against their own employer, it appears that from the beginning the employees and their representative inevitably connected their problem to Con Edison and sought to cure it through Con Edison. Brady not only told Harlin that the men were losing work but asked him to see if the Company could alleviate the problem by "taking over some of the trucking that Edison was doing." When McKee first spoke with Harlin in March 1961 about the drivers' complaints he told Harlin that he had an agreement with Joseph Murphy, an official of Con Edison, that Local 282 men would haul materials to new construction work being done by Con Edison . McKee also told O'Rourke about this alleged understanding and asked O'Rourke to call Con Edison and arrange to have Precon do more of the trucking work. O'Rourke told McKee to make the contact with Con Edison himself which McKee tried to do but he was unable to reach Murphy. In the same conversation McKee told O'Rourke that if Con Edison persisted in picking up all its product he would tie up the construction work by pulling off Redi-Mix trucks. McKee at another time told Harlin that he had advised the Precon drivers to follow Con Edison trucks to construction jobs with a view to picketing the general contractor in order to stop Con Edison from delivering .the product. In addition to the above evidence of awareness of Con Edison's place in the picture, Con Edison and the delivery problem were discussed by both sides in the June negotiations. Moreover, when the men voted down the Company's counter- proposal McKee discussed the men's reasons with O'Rourke. O'Rourke told him that he had a problem with Con Edison and then McKee and O'Rourke spoke on the telephone with Gerald Hadden, vice president of Con Edison, and McKee offered to meet with Hadden to work out any difficulty between Con Edison, O'Rourke, and the Union. Hadden refused to meet and told O'Rourke that Con Edison would continue to pick up under their contracts. It is also undisputed that the employees and McKee knew from the beginning that Con Edison had contracts with the manufacturing companies running for a substantial period of time which gave Con Edison the right to pick up the concrete products, and that Con Edison was insisting on performance under these agreements. Harlin told the employees about the purchase orders and O'Rourke showed them to McKee before the strike. McKee testified that when shown the purchase orders "I was amazed and I saw justification for their problem." It would appear, therefore, on the basis of the above recital, and prior to analysis of the language of the Union's proposal and its operational effect, that not only did the employees have a real and not fictitious grievance with respect to the hauling of their employer's product but that they were aware prior to the strike that an effective solution of the problem appeared blocked by Con Edison's contractual arrangements with their employer and its general practice of picking up the purchased material. The language in the clause in question was admittedly drafted to meet the com- plaint of the men about loss of work caused by customer pickups. McKee added to the employees' original copybook draft the words appearing in clause (b) above "or any utility corporation trucks." Although the word "employ" was used in re- stricting the use of "utility corporation trucks" it was agreed at the hearing that the companies did not in the technical sense "employe" utility corporation trucks and that the restriction was on the manufacturing companies permitting utility corpora- tions or other companies to pick up material with their own equipment under certain circumstances . It was also clear from the testimony of all witnesses that Con Edison was the principal offender involved in the problem. Unless certain conditions were met the language and intent of the clause were all restrictive. It states "nor shall any material leave the yard." If those conditions were not met and any outside company came into the yard to pick up material it would be a breach of the agreement according to McKee. The condition that had to be met before "any material [could] leave the yard" was that all drivers on Precon's seniority list "with suitable equipment " must be employed. Precon had 12 drivers on the seniority list. It had about eight or nine large pieces of equipment "suitable" for delivery of its concrete products and also two or three concrete mix trucks normally used in the yards. There is a dispute about whether it would have been necessary that all concrete trucks be working in certain events, but it is clear that the eight or nine pieces of equipment suitable for delivery of the manufacturing companies' products would have to be working ,and manned by employees in the unit before any customer could pick up material. This require- 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment would necessarily prevent outside companies from "doing business" with the manufacturers in some measure by preventing them from picking up whenever any piece of suitable equipment was idle. According to the men they and ,the equipment were frequently idle. Moreover, in the case of Con Edison the disruption would be inevitable and sub- stantial, if not total. Con Edison's operations must be considered here. As set forth above, Con Edison is the largest customer of the manufacturing companies and dollarwise, 60 percent of prefabricated concrete used by Con Edison in its operations is purchased from Precast, and 40 percent from Concrete. Con Edison makes long- term agreements with the manufacturing companies and notifies them when it needs the material. Con Edison hauls normally with its own trucks and the reason for this was explained by Fred C. Shaughnessy, general manager of the Outside Plant Con- struction department of Con Edison. He testified that Con Edison operates about 150 heavy hauling trucks, driven by members of the Utility Workers Union of America, and that these trucks are scheduled 24 hours a day and 7 days a week to make deliveries to various sites within the city. He explained further that Con Edison's operations required close scheduling with other trades. He testified, "We employ about 1500 people in the construction side of the business, and many of our jobs are coordinated so integrated with the electric and gas system that these truck deliveries may be made at any time during the day or Saturday or Sunday." He added that an additional reason for Con Edison's use of its own trucks is that when they drop their loads at the construction site they bring back other equipment. It would appear, therefore, that Con Edison would logically insist, as it did, that the manufacturing companies live up to the agreement in the purchase orders per- mitting Con Edison to deliver its own purchases. The Union's clause in question, if enforced, would, in view of the substantial amount of Con Edison's requirements, and the operational necessity for picking up concrete construction materials as they had in the past, result in the manufacturing companies violating their long-term agreements with Con Edison thereby substantially disrupting their business rela- tions with Con Edison, or could result in Con Edison looking elsewhere for the products it needed. In either case the manufacturing companies would have been caused to stop doing business with Con Edison. But the questions still remain whether in view of the Union's legitimate interest in protecting the jobs of its members "an object" of its demands and strike was under the Act the cessation of business by its employer with Con Edison and other per- sons and whether clause (b) is the type of agreement outlawed by Congress in Section 8(e). I think, in the circumstances of this case, that the Union must be held to have had as "an object" the disruption of business relations between its employer and Con Edison and also to have struck for an agreement which is prohibited by Section 8(e) of the Act Respondent Union contends that "Precon's practice of granting a lower price to its customers to induce them to make their own deliveries is plainly a method of farm- ing out the delivery work. It makes no essential difference whether such practice be designated `contracting out' or be labeled otherwise. In essence, it is a use of other persons to perform the work of delivery. The price differential represents the amount paid by the employer in lieu of wages to his employees." In a sense the Union argues, therefore, that the clause is like the normal provisions against subcontracting. Start- ing with that premise, it urges that clauses relating to subcontracting were mandatory subjects of collective bargaining under the National Labor Relations Act prior to its amendment by the Labor-Management Reporting and Disclosure Act of 1959, and that if this is so, then a strike to secure a provision restrictive of subcontracting would not have run afoul of Section 8(b)(4) of the Act. When Congress wrote Section 8(e), the argument continues, it intended to outlaw "hot cargo" clauses which it considered loopholes permitting unions to evade the existing provisions outlawing secondary boycotts but did not "intend to outlaw clauses that are intended to safe- guard the economic interest of a primary employer's employees for the purpose of increasing their employment opportunities by limiting that employer's right to con- tract out work." I am in general agreement with the Union's analysis of the law prior to the Lan- drum-Griffin amendments and the effect of the amendments an subcontracting clauses and the Board seems of the same view.? While I do not believe that the clause On the question of the duty to bargain see The Timken Roller Bearing Company, 70 NLRB 500; Fiberboard Paper Products Corporation, 130 NLRB 1558. Timken Roller Bearing was cited with approval in Teamsters Union v. Oliver, 358 U.S. 283, 295. See also Butchers' Union Local 563 Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO [Huntington Meat Packing Company, d/b/a Oxford Meat Co.] (Monarch Building Maintenance Co.), 134 NLRB 136, and Milk Drivers and Dairy Em- LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1087 in question is the conventional restriction on subcontracting it has such an aspect be- cause the Union is substantially motivated by a desire to maintain and secure work for the members of the bargaining unit. But even using the subcontracting analogy- which is the one most favorable for the Union-I think that the agreement sought and the strike to secure it are interdicted in the circumstances of this case. In com- ing to this conclusion I am guided by certain principles suggested by the Board in its decision in Milk Drivers and Dairy Employees Union, Local No. 546, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Minnesota Milk Company), 133 NLRB 1314. There the Board said: Finally, we do not agree with the broad conclusions of the Trial Examiner that Section 8(e) bars all agreements prohibiting the subcontracting of work. The Trial Examiner states: It is clear from this legislative history that Congress clearly intended as a matter of public policy thereby [the enactment of Section 8(e)] to outlaw not only traditional "hot cargo" clauses in contracts made by the Teamsters and other unions in the transportation industry, but beyond that all similar clauses which directly or indirectly required an employer to cease doing business by contract, subcontract or in any other manner, with any other person. We find no justification in .the statute for so sweeping a generalization. With respect to contracts and agreements prohibiting an employer from the con- tracting or subcontracting out of work regularly performed by his employees we shall examine each such contract or agreement as it comes before us. The language used, the intent of -the parties and the scope of the restriction vary greatly in such agreements and each must meet scrutiny in terms of the statutory restraint on its own. We have already indicated types of agreements which clearly violate 8(e) in American Feed Company (129 NLRB 321) and Amalgamated Lithographers of America (Ind.), (130 NLRB 985) and we shall continue to enunciate principles of guidance as the cases reach us. With due regard for the Board's warning that not all agreements preventing an employer from doing business with another are prohibited by Section 8(e) of the Act the clause in question must be examined in the light of the principles suggested by the Board. The language of the demand is inartistic but clear. No one had any difficulty in interpreting it at the hearing. It states: "Employer (Precon, Precast, Precrete and Concrete Conduit) . . . shall not employ (use) . . . any utility corporation trucks (Con Edison or any other public utility) unless . (all) drivers . . . on Employer's seniority list with suitable equipment are working. . The intent of the Union is clear, but it is dual. As set forth above, the Union's purpose was to secure more work for the drivers on the seniority list but necessarily it intended to accomplish its purpose by stopping the manufacturing companies from doing business with Con Edison and others in the manner in which the manufacturing companies and their customers had done business for many years. The scope of the restriction is broad. No "material shall leave the yard" unless the conditions are met. To this point the "principles of guidance" are not too enlightening. In any well- drafted restriction on subcontracting of work, it seems to me, the language will be clear, the intent dual, and the restriction broad enough to achieve the result intended. Moreover, if by the "scope of the restriction" and the "intent" the Board means a purpose to prevent the utilization of another employer based on considerations relating to the union affiliation of the latter's employees (the evil found in typical "hot cargo" agreements),8 then the Union cannot be faulted under that principle for it did not intend Con Edison, or any other company, to pick up under any conditions related to the union affiliations of their employees. ployees Union, Local No. 546, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Minnesota Milk Company), 133 NLRB 1314, dis- cussed in the text of this report. 8 See Highway Truck Drivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent (Gallagher 6 Sons ), 131 NLRB 925 ; Amalgamated Lithographers of America (Ind) and Local No. 17, etc. (The Employing Lithographers, at al. ), 130 NLRB 985; Butchers' Union Local 563, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO ( Hunting- ton Meat Packing Company, d/b/a Oxford Meat Co.] (Monarch Building Maintenance Co.). 134 NLRB 136. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand some help is found in the Board's statement in Minnesota Milk Company that it will examine each agreement "prohibiting an employer from the con- tracting or subcontracting out of work regularly performed by his employees. . [Emphasis supplied.] The case at bar does not involve a jurisdictional dispute under Section 8 (b)(4)(D) of the Act in the conventional sense, but in the broad view it does involve allocation of work among Con Edison drivers and Precon drivers, and so equitable and practical considerations as between the two classes of drivers may not be irrelevant. Although Precon's drivers deliver some of the Con Edison purchases, Con Edison picks up 90 percent of its purchases with its own men and equipment and has done business with the manufacturers in this manner for almost 30 years. Although Subway Company work formerly delivered by Precon's em- ployees is now picked up by Con Edison there is unrefuted testimony that Con Edison has given Precon drivers more work than it did in the past. Therefore, although traditionally Precon's drivers have done part of the work, traditionally Con Edison drivers have done the greater part and the Union's intent is not to hold on to what it has but to prevent Con Edison and its drivers from continuing to work as they have historically. In this view the work sought by Precon drivers is not traditionally theirs but is as much, if not more, traditionally and equitably the work of others. In addition, I feel that there is an equitable and practical difference in striving to maintain conditions in a bargaining unit as they are for the life of the agreement and in seeking to disrupt an existing arrangement determined by existing contracts of reasonable duration. Moreover, under a typical subcontracting arrangement the principal employer is free to choose when, how, and with whom he shall do business. He need not subcontract work at the risk of having it done under substandard conditions and the company which takes such work does so normally with knowledge that others have done it and in a measure "allies" itself with the employer who contracts out. Here, however, .the manufacturing companies have no real choice in the matter for the customers determine the method of delivery and they are motivated solely by the operational necessities of their business and not by any considerations of aiding the principal employer. The only real choice the manufacturer has is to do business the way the customer wants or not at all, and the customer, based on its historic practice of doing business, is in no sense an interloper. Finally, in the typical no-subcontracting arrangement unions seek to preserve work for their members (or insure that it is done under union conditions) with no intention of interfering with the totality of the employer 's business or the jobs of other employees in different bargaining units of the employer. If the object is achieved there is no appreciable harm to the principal employer, employees in other units, or innocent third party employers. The manufacturing companies in this case employ hundreds of production employees in other bargaining units. Here, although the drivers if successful might have obtained work that outside employees were doing, it is also conceivable that because of the nature of Con Edison's opera- tions it might have to look elsewhere for the products it needs. This would destroy the very business and the jobs which the drivers seek to preserve, as well as the jobs of those in production, and would disrupt the business of a third party which is legally "neutral." Based upon the above considerations and analysis and upon the entire record in the case, it is my opinion that the Board would find the clause in question prohibited by Section 8(e) of the Act, and I so find. The Union concedes that it struck for the clause in question and the record shows that McKee told Harlin and O'Rourke in their last meeting before the strike that the Union would strike unless the employer agreed to the clause . The Union's ultimate object was not only to secure the prohibited agreement but also to require the employer to cease doing business with Con Edison and other persons. I find, further, that by threatening to strike and picket and by striking and picketing for the objects described Respondent violated Section 8(b) (4) (i) and (ii) (A) and (B) of the Act. C. The provision restricting "subletting" It will be recalled that the complaint alleged in paragraph numbered 11(a) that the Union demanded and struck for the following clause: All men and equipment hired must have agreement with Local 282, I.B.T. Any work sublet by Employer must be delivered by Employer 's trucks and employees. Considerable testimony was taken about the first sentence of the clause but hardly any about the second. It was my impression at the hearing that General Counsel LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1089 was not seriously urging the impropriety of the "subletting" clause or that, in any event, it was not a significant part of his case. His brief contains no discussion of the subject, and it is my opinion that if the clause was ever in issue it has now been abandoned by General Counsel. Counsel for the Charging Parties in his brief , however, contends that the "sub- letting" provision contravenes Section 8 (e) of the Act. In my opinion the record was not well enough developed to make this issue , if it is one, ripe for decision within the meaning of the Board's Minnesota Milk Company case. There is little evidence in the record to show how the restriction would operate or was intended to operate in practice. As a matter of fact, Harlin , the employer's negotiator, testified that he did not understand the demand and that the Company did not "sublet" work. Although an employee testified another concrete company delivered a product made under subcontract with the principal company, Harlin denied it. In addition, although the Union does not deny that it sought such a clause, the whole tenor of Harlin 's and O'Rourke's testimony was that there were only two issues in the strike and they were the Union 's insistence on the clause: "All men and equipment hired must have agreement with Local 282, I.B.T.," and the longer clause about exhausting the seniority list before customers could pick up. Where the employer involved is ignorant of the meaning of the provision and asserts other issues as causes of the strike, and the General Counsel seems to have abandoned the claim of illegality, if he ever asserted it, rational interpretation of the meaning and effect of the provision seems precluded. In any event, I do not think the provision on its face is illegal . There is no re- striction on the manufacturers' right to have another manufacture its products under subcontract. All that is required is that if it chooses to subcontract it must provide in the agreement that its own drivers shall deliver . I see here none of the objec- tionable features described in the treatment of the clause found illegal . Calorator Manufacturing Corp., 129 NLRB 704, and cases like it are , in my opinion, inapposite. In those cases the Union sought to restrict the subletting or other business dealings to firms under contract with the union or maintaining union standards . This is not so here. I find that General Counsel has not established by a preponderance of the evidence that the Union violated the Act by its insistence upon the provision in question even to the point of striking for it. D. The Union's revised demand On or about July 14, 1961 , Respondent modified the demand set forth in the clause which I have found to be prohibited by Section 8(e) as follows: All work related to deliveries of products manufactured by or for the Em- ployer shall be performed by drivers and helpers on the seniority list provided for in this agreement under the terms and conditions of this agreement. Pro- vided that: (1) if all drivers and helpers on the seniority list are working, or (2) if all equipment suitable for the deliveries owned by the Employer is in operation, work related to deliveries of the Employer's products may be made by persons other than those on the seniority list provided for in this agreement. Pursuant to the foregoing no Hi -Lo's will be operated outside the Employer 's yards except in accordance with the terms of proviso . . . of this section. By letter dated July 19, 1961 , from the Union's attorney to O'Rourke, a subsection was added to the above as follows: If work related to the deliveries of the Employer 's products is performed by persons other than those on the seniority list provided for in this agreement, in violation of this section ; then the damages payable by the Employer shall be limited to a regular day's pay, in accordance with Section 1 hereof, of the employee or employees who would have performed the work but for the viola- tion of this Section. When the revised demand was presented to O'Rourke he told McKee that the demand was unacceptable because it did not change what the Union had been asking for. No one from the Union undertook to explain to O'Rourke what dif- ferences, if any, there were in the operation of the revised demand. After the sub- mission of the revised demand, McKee asked O'Rourke to contact Con Edison and arrange a meeting so that McKee would explain his demand . O'Rourke got in 1090 DECISIONS OF \ ATIONAL LABOR RELATIONS BOARD touch with Arthur Anderson, a vice president of Con Edison, who refused to meet with McKee. On or about July 25, 1961, McKee and the wage committee met with John Garvin, a labor relations consultant, in O'Rourke's office. McKee told Garvin that if agree- ment could be reached on the "seniority article" (the Union's revised demand) a full agreement could be quickly consummated, but, if not, the strike would continue. McKee was told by Garvin that the revised demand was inacceptable. Later Garvin told McKee that the employer would guarantee employment for five drivers but McKee turned this down as inadequate. McKee told Garvin and O'Rourke that the strike would continue until the employer agreed to the revised demand. The strike did continue until enjoined. No one can contend that the Union's revision of July 14 meant less or was intended to operate any differently than the clause which I have above found to be illegal in the circumstances. It expressly binds the employer not to allow any of their customers to pick up any of the products of the manufacturing companies , regardless of commitments or custom, unless all 12 drivers on the seniority list are working or all suitable equipment is in operation, and it was so understood by all involved. The July 14 revised demand, therefore, being the same as the original is improper on the same basis as the original, and I so find. The revision of July 19, however, allowed persons other than those on the seniority list to pick up for delivery despite the proposed agreement provided that the employee or employees who lose work because of the work performed by the other persons are paid their regular day's pay These payments are called "damages" to be paid as a penalty "for the violation of the" contract. I think the revision of July 19 cured none of the defects of the earlier proposal. The damage or penalty clause cannot be considered in isolation for it is an integral part of the total revision. It is a sanction designed to insure the achievement of one of the Union's original objects which was, and is, the securing of work for its members but which is presently being performed by employees of Con Edison and others. This objective can only be reached by Con Edison agreeing to stop its customary method of doing business, the manufacturer canceling its contracts with Con Edison, or paying a penalty the amount of which is wholly conjectural. The revision does not legally give the manufacturers an alternate method of doing busi- ness since the overriding intent of the revisions is the elimination of Con Edison pickups with its own men and equipment unless the drivers are employed. When- ever the conditions are not satisfied and Con Edison or any other customer picks up, the contract will have been violated. These recurring violations might result in claims of material breach of the agreement leading to recission or requests for arbitration under the contract. These uncertainties, in addition to the conjectural financial liability which the manufacturers might incur during the life of the agree- ment, added to the "moral suasion" 9 of having agreed in principle to keep their drivers employed regardless of commitments to others, necessarily would drive the manufacturers toward a different method of doing business with their customers. Again, as in the case of the earlier demand which precipitated the strike, the Union's object is not to secure work for its members which is traditionally theirs but, by reason of the scope of the restriction, to secure work historically performed by others. Moreover, even under the revised demand the manufacturers are, unlike the ordinary person who contracts work out, not free to decide when and how they shall do business with Con Edison for Con Edison insists because of the exigencies of its business that the manufacturer do business in the customary manner. These considerations, it seems to me, reveal the lack of an equitable basis justifying the im- position of a penalty to achieve or excuse a result otherwise unlawful. I find that the July 19 revision did not make the July 14 revision less objectionable under Section 8(e) of the Act and that the Union by insisting upon acceptance of these revised proposals as a condition of settling the strike with an object of causing the employer to cease doing business with Con Edison and others and signing an agreement illegal under Section 8(e) violated Section 8(b) (4) (i) and (ii) (A) and (B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Union described in section II, above, occurring in connection with the operations of the Charging Parties described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce 9 Mary Feifer, d/b/a American Feed Company, 133 NLRE 214 LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1091 among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has committed unfair labor practices, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and on the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Charging Parties are persons engaged in commerce or an industry affecting commerce within the meaning of the Act. 3. By threatening to strike and picket and by striking and picketing to secure a collective-bargaining agreement containing certain provisions which would violate Section 8(e) of the Act, the Union engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act. 4 By threatening to strike and picket and by striking and picketing with an object of forcing Precon, Precast, Precrete, and Concrete Conduit (the Employer) to cease doing business with Con Edison and certain other employer customers of the employer, the Union engaged in unfair labor practices within the meaning of Section 8(b)(4)(1) and (ii)(B) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, it is recommended that the Respondent, Local 282, International Brotherhood of Team- sters, 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 employees of Precon, Precast, Precrete, and Concrete Conduit, New York, New York, to engage in, a strike, or threatening, coercing, or restraining the aforesaid employer, where in either case an object thereof is to force or require said employer to enter into any agreement which is prohibited by Section 8(e) or where an object thereof is to force or require the aforesaid employer to cease doing business with Con Edison, or with any other person. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Post in conspicuous places in Respondent 's business offices, meeting halls, and places where notices to members are customarily posted, copies of the attached notice marked "Appendix." 10 Copies of said notice , to be furnished by the Regional Director for the Second Region , shall, after being duly signed by official representa- tives of Respondent , be posted by Respondent immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter . Reasonable steps shall be taken by Respondent to insure that said notice is not altered , defaced, or covered by any other material. (b) Furnish the Regional Director for the Second Region signed copies of said notice for posting by Precon , Precast, Precrete, and Concrete Conduit , if willing, in places where notices to employees are customarily posted. (c) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this report , what steps Respondent has taken to comply herewith.ii 15If this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice If the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforc- ing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 11 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 672010-63-vol. 139-70 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF PRECON , PRECAST, PRECRETE, AND CONCRETE CONDUIT Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the polices of the National Labor Rela- tions Act, we hereby give notice that: WE WILL NOT engage in, or induce or encourage employees of Precon , Precast, Precrete, and Concrete Conduit to engage in, a strike or threaten , restrain, or coerce the aforesaid employer where in either case an object is to force or require the aforesaid employer to enter into any agreement which is prohibited by Section 8(e) of the Act, or where an object thereof is to force or require the aforesaid employer to cease doing business with Consolidated Edison Company or any other person. LOCAL 282, 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. Publishers' Association of New York City, et al. and New York Mailers Union No. 6 International Typographical Union, AFL- CIO and Newspaper and Mail Deliverers Union. Cases Nos. 2-CA-7863 and 2-CA-7884. November 19,1962 DECISION AND ORDER On April 19, 1962, Trial Examiner Charles W. Schneider 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 therefrom and take certain affirmative action, as set forth in the at- tached Intermediate Report. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices, and recommended that the allegations of the complaint per- taining thereto be dismissed. Exceptions to the Intermediate Report and supporting briefs were filed by the Respondents and the General Counsel ; exceptions only were filed by New York Mailers Union No. 6 International Typographical Union, AFL-CIO, one of the Charging Parties herein. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case,' and finds merit in the Respondents' exceptions. Accord- 1 Respondents' request for oral argument Is denied, as the record and briefs fully present the issues and positions of the parties. 139 NLRB No. 107.