Local 445, Int'l Brotherhood of Teamsters, Etc.

LOCAL 445, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1097 Engineering and Grading Contractors Association , Inc.; and Home Builders Association of Los Angeles , Orange and Ventura Counties, to discriminate against employees in violation of Section 8(a)(3) of the National Labor Rela- tions Act. WE WILL make whole George S. Ferrell, Jr., and Lloyd Bates for any loss of pay they may have suffered from having been refused dispatch in a proper and lawful manner from our out-of-work list. LOCAL 507 INTERNATIONAL HOD CARRIERS' BUILDING AND COMMON LABORERS' UNION OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) 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 with the Board 's Regional Office, 849 South Broadway, Los Angeles 14, California , Telephone No. Richmond 9-4711, Extension 1031 , if they have any question concerning this notice or compliance with its provisions Local 445, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Colony Liquor Distributors, Inc.; Colonial Carriers, Inc. Case No. 3-CC-179. February 6, 1963 DECISION AND ORDER Upon unfair labor practice charges filed on July 27, 1962, by Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., herein referred to collectively as the Charging Party or as Colony, against the Re- spondent, Local 445, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, the General Counsel of the National Labor Relations Board, by the Regional Director for the Third Region, issued an amended complaint alleging that the Respondent had engaged in and was engaging in unfair labor prac- tices within the meaning of Section 8(b) (4) (ii) (B) of the Act. Copies of the complaint, charges, and notice of hearing were served upon the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleged that by picketing at the premises of retail liquor stores, hotels, and restaurants, all of which are persons and employers within the mean- ing of Section 8(b) (4) of the Act, the Respondent has threatened, coerced, and restrained these persons and other persons, with an ob- ject of forcing and requiring them to cease doing business with Colony. Thereafter, the Respondent filed an answer denying the ma- ters al allegations of the complaint. On October 26, 1962, all parties entered into a "Motion To Transfer Proceeding to the Board and Stipulations," waiving a hearing and the taking of testimony before a Trial Examiner, the making of find- ings of fact and conclusions of law by a Trial Examiner, and the 140 NLRB No. 105. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issuance of an Intermediate Report and Recommended Order. They further agreed to submit the case directly to the Board for findings of fact, conclusions of law, and order based upon a record consisting of the charge, complaint, amended complaint, answer, stipulations of the parties, and the transcript compiled and exhibits received in evi- dence at a hearing conducted before the United States District Court, Southern District of New York, in the case of Merle D. Vincent, Jr., Regional Director of the Third Region of the National Labor Rela- tions Board v. Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 62 Civ. 2715.1 The stipulations entered into by the parties included certain amend- ments to the Respondent's answer, and certain resolutions of conflicts in testimony contained in the above-mentioned transcript. On November 1, 1962, the Board granted the motion of the parties and transferred the case to itself. Thereafter, the General Counsel, the Respondent, and Colony filed briefs. Upon the basis of the stipulation, the briefs, and the entire record in the case, the Board 2 makes the following : FINDINGS OF FACT 1. TIIE BUSINESS OF COLONY Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., af- filiated businesses which constitute a single integrated business enter- prise, are New York corporations with principal offices in Kingston and Menands, New York. Colony Liquor is engaged in the wholesale distribution of wines, liquors, and related products, and Colonial Carriers is engaged in providing and performing trucking and related services for Colony Liquor. During the year preceding the issuance of the complaint, Colony Liquor received, from outside the State, wines, liquors, and other products valued at more than $500,000, and Colonial Carriers performed trucking and related services for Colony Liquor valued at more than $50,000. The Respondent admits, and we find, that Colony Liquor Distrib- utors, Inc., and Colonial Carriers, Inc., are engaged in commerce with- in the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 1 On August 22, 1962, this court granted the Regional Director's request for a temporary injunction pursuant to Section 10(1) of the Act. 2 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 [Chairman McCulloch and Members Leedom and Brown]. LOCAL 445, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1099 III. THE UNFAIR LABOR PRACTICES During the period from July 25 to 28, 1962, while the Respondent was engaged in a primary dispute with Colony, the Respondent picketed a number of retail liquor stores, restaurants, and hotels, herein referred to as the Retailers, located in New York State and operated by customers of Colony. The pickets, who patrolled in groups of from two to five individuals, picketed the Retailers' public en- trances.3 The picket signs, which were headed, "TO THE CON- SUMER," listed 12 brands of liquor,' and announced : THESE BRANDS ARE DELIVERED TO THIS PLACE OF BUSINESS BY COLONY LIQUOR DISTRIBUTORS, WHO EMPLOY NON-UNION DRIVERS AND WAREHOUSEMEN. PLEASE DO NOT PURCHASE THESE BRANDS OF LIQUOR. The pickets also distributed to the Retailers' patrons handbills requesting them not to purchase the proscribed brands. In addition, the pickets distributed to the Retailers' managers copies of a "Notice to Customers of Colony Liquor Distributors, Inc.," which were attached to copies of "Instructions to Picketing Members of Local Union 445, I.B. of T." These documents stated that the picketing was directed at consumers of products distributed by Colony and not at the Re- tailers, their employees, or their other suppliers. Although Daley testified that he was "reasonably sure" all the Re- tailers did in fact sell Colony products, the final sentence of the "Notice" referred to above read as follows : IF TILE ABOVE MENTIONED BRANDS OF LIQUOR ARE NOT ON SALE AT YOUR PLACE OF BUSINESS, YOU SHOULD NOTIFY THE UNION OF TIIE FACT, AND IT WILL THEREUPON TRANSFER THE PICKETS TO AN- OTHER PLACE OF BUSINESS WHERE THESE BRANDS ACTUALLY ARE BEING SOLI). The Respondent's representatives told the owners and managers of various Retailers, in accord with this statement, that picketing of their establishments would be discontinued if they ceased selling the proscribed brands. Various Retailers did in fact discontinue selling the proscribed brands or instruct Colony to suspend deliveries pending 3 There is no evidence that employees of Colony were present at the time this picketing of the Retailers was going on, and Daley, the Respondent's secretary-treasurer, testified that this picketing was not directed to coincide with the presence of Colony employees at the secondary establishments. There is likewise no evidence that this picketing re- sulted in any work stoppage by the Retailers' employees or in any interruption of deliveries. 4 The brands listed were distributed exclusively by Colony in the areas where the picketing occurred 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolution of the dispute. Thus, the bar manager at Grossinger's Hotel testified that, subsequent to the commencement of picketing at his establishment, he placed an order with Colony but requested that delivery be suspended until Colony's dispute with the Respondent was resolved. Bisonett, executive assistant manager of the Governor Clinton Hotel in Kingston, testified that, after the picketing began at his establishment, he had a telephone conversation with Alecca, the Respondent's trustee. Bisonett, whose credibility was stipulated to by the parties, testified : I called him [Alecca] and told him I wanted to have the pickets removed and I asked him if I removed those brands from the bar how long it would be before the pickets would be removed and he replied "Immediately." Bisonett thereafter removed the proscribed brands from his bar and the picketing of his establishment was promptly discontinued. Melnick, one of the Respondent's pickets at the Eleven Main Street Restaurant in Kingston, testified that the manager of that establish- ment asked him whether the pickets would leave if he took the pro- scribed brands off the bar, to which Melnick replied : "It is not up to me to tell you to take the stuff off the bar." Melnick further testified that he believed the manager then called the Respondents' office, after which he told the pickets that the proscribed brands would be removed from his bar. Thereupon, the picketing at this location ended ap- proximately 5 minutes after it began. As the Board has consistently held, consumer picketing in front of a secondary establishment constitutes restraint and coercion within the meaning of Section 8(b) (4) (i1),5 and when it has for an object forcing or requiring any person to cease selling or handling the prod- ucts of any other producer or processor, the picketing violates Section 8(b) (4) (ii) (B). In the present case, on the basis of the incidents described above and similar occurrences detailed in the record, it is clear, and we find, that an object of the Respondent's consumer picketing was to cause the Retailers to cease handling Colony products. The Respondent sought by such picketing to persuade the Retailers' customers not to purchase from the Retailers the proscribed brands, which the e Fruit & Vegetable Packers & Warehousemen, Local 760, at al ( Tree Fruits Labor Relations Committee, Inc.), 132 NLRB 1172, 1177 , reversed 308 F 2d 311 (CAD C) ; Upholsterers Frame & Bedding Workers Twin City Local No. 61, at al ( Minneapolis House Furnishing Company ), 132 NLRB 40, 43-44 (Members Rodgers and Leedom dis- senting with respect to other matters ). The court's opinion in the Tree Fruits case, on which the Respondent relies , held that consumer picketing at the premises of a secondary employer to achieve objectives proscribed by the Act does not, in itself, constitute coercion and restraint in violation of the Act. With all due respect to the court 's opinion, the Board has determined to adhere to its interpretation of the Act as set forth in the Board opinions in the above-cited cases Moreover, as more fully discussed above, the picketing in the subject case did, in fact, produce the intended result of coercing and restraining the Retailers in their dealings with Colony. LOCAL 445 , INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1101 Retailers in turn purchased exclusively from Colony . The natural and foreseeable result of such picketing , and of the conduct of the Respondent's representatives in connection therewith , if successful, would be to force or require the Retailers to discontinue their pur- chases from Colony . We find from all the evidence that the Respond- ent intended this natural foreseeable result. Moreover, the pick- eting and the conduct of the Respondent's representatives did in fact have their intended effect in coercing and restraining the Re- tailers in their handling of Colony products . As discussed above, Grossinger's Hotel requested that delivery of its order be suspended until the primary dispute was resolved , and the Governor Clinton Hotel and the Eleven Main Street Restaurant removed the proscribed brands from their bars. Accordingly, we find that the picketing herein involved violated Section 8 (b) (4) (ii ) (B) of the Act. IV. TIIE EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of Colony , have n close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following : CoNCLusloNs OF LAW 1. Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., are engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By its consumer picketing of retail liquor stores, hotels, and restaurants in New York State in furtherance of a dispute with Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 445, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Yonkers, New York, its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening, coercing, or restraining any retail liquor stores, hotels, or restaurants by picketing where an object thereof is to force or require them to cease using, selling, handling, transporting, or other- wise dealing in products sold by Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., or to cease doing business with these companies. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its offices and meeting halls, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director copies of the aforemen- tioned notice for posting by the retail liquor stores, hotels, and restau- rants, if willing, at the picketed establishments. (c) Notify the Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken by the Respondent to comply herewith. 6In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 445, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT threaten, coerce, or restrain any retail liquor stores, hotels, and restaurants by picketing, where an object there- of is to force or require them to cease using, selling, handling, THE PHILIP CAREY MFG. CO. (MIAMI CABINET DIV.) 1103 transporting, or otherwise dealing in the products sold by Colony Liquor Distributors, Inc., and Colonial Carriers, Inc., or to cease doing business with these companies. LOCAL 455, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------ (Representative ) (Title) 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 with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo 2, New York, Telephone No. TL 6-1782, if they have any question concerning this notice or compliance with its provisions. The Philip Carey Manufacturing Company (Miami Cabinet Divi- sion) and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW- AFL-CIO, and its Local Union No. 689. Cases Nos. 9-CA-2192 and 9-CA-2240. February 6, 1963 DECISION AND ORDER On February 21, 1962, 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 attached Intermediate Report. Thereafter, the General Counsel, the Charging Party, and the Re- spondent filed exceptions to the Intermediate Report and supporting briefs. The Respondent also filed a motion to expedite and requested oral argument.' 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 hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner as modified herein. 1. The Trial Examiner found that the Respondent had refused to bargain in good faith with the Union on and after July 28, 1960, and 1 The request for oral argument to denied as the record , including the exceptions and briefs, adequately presents the issues and the positions of the parties. 140 NLRB No. 90.