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

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, remain , or refrain from becoming or remain- ing members of any labor organization. ED WHITE JUNIOR SHOE COMPANY, Employer. 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, Seventh Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451 , 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 J. J. White Ready Mix Concrete Corp. Case No. O-CC-652. March 13, 1963 DECISION AND ORDER On March 30, 1962, Trial Examiner Paul Bisgyer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Intermediate Report. The Trial Examiner also recommended that the complaint be dismissed insofar as it alleged certain other unfair labor practices. Thereafter, both the General Counsel and the Respondent filed exceptions to the Intermediate Report together with supporting briefs. The Board his reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the briefs, and the entire record herein, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the exceptions and additions noted below. The basic facts are not in dispute. As found by the Trial Examiner, the Respondent sought to further its primary dispute with White by picketing at various construction sites and business establishments of neutral employers while White's trucks were on their premises and by otherwise appealing to such employers of their employees to co- operate with Respondent in its dispute with White. The alleged violations occurred at 11 different sites or locations. Picket lines were established at certain of these sites, namely, at the 141 NLRB No. 31. LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 425 Hicksville railroad yard, Sokolov's Great Oaks Development project, Ruttura's Columbian and Freeport jobsites, and at Ogilvie and Camp- bell's Westbury, Hempstead, and Uniondale projects. The picket- ing was conducted only at the times when White's trucks were on the premises in the pursuit of White's business, and the picket signs clearly identified White as the employer with whom the Respondent was in dispute. The Trial Examiner found the picketing at each site to be unlawful. Members Rodgers and Leedom agree that the Respondent violated the Act as found by the Trial Examiner. Apart from the reasons set forth by the Trial Examiner, which they adopt, they believe that the record's disclosure that the Respondent chose to picket White's trucks at the situs of neutral employers even though White had a permanent place of business to which the drivers of its trucks returned a number of times each day, and at which the Union could and did effectively picket, is alone sufficient to support their ultimate finding.' The Chairman 2 and Members Fanning and Brown agree with the Trial Examiner and Members Rodgers and Leedom, that Respond- ent violated the Act by its conduct at Sokolov's Great Oaks Develop- ment project, Ruttura's Columbian site, and the Hicksville railroad yard. In so finding, they rely upon the facts establishing that, con- trary to the requirements of Moore Dry Dock I the picketing at each of these locations took place at the entrances of these neutral em- ployer jobsites, rather than in the vicinity of White's trucks.4 In these circumstances, and as the record discloses no effort by Respond- ent to bring its picketing closer to the situs of its dispute with White at these premises, they are persuaded that such picketing violated Section 8(b) (4) (i) and (ii) (B) of the Acts Members Fanning and Brown do not accept the Trial Examiner's determination, adopted by Members Rodgers and Leedom, that the i Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, etc. (Washington Coca Cola Bottling Works, Inc.), 107 NLRB 299. See also the separate dissent of Members Rodgers and Leedom in International Brotherhood of Electrical Workers, Local Union 861, et at. (Plauehe Electric, Inc ), 135 NLRB 250. 2 Chairman McCulloch's position in this case appears more fully in his concurring opinion. 8 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 Also see International Brotherhood of Electrical Workers, Local Union 861, et al. (Plauche Electric, Inc.), supra. 4 For example, the Sokolov picketing took place about 100 feet from the truck and the picketing at Ruttura's was about 200 feet from one of the trucks. 6,Cf. International Brotherhood of Teamsters, etc., Building Material & Construction, Ice d Coal Drivers, Warehousemen & Yardmen, Local No. 659, AFL-CIO (Ready Mini Concrete Company ), 117 NLRB 1260; International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Subordinate Lodge No. 92 (Richfield Oil Corpora- tion), 95 NLRB 1191. In the finding of an 8 (b) (4) (1) (B ) violation at the Hicksville railroad yard, there is agreement that such finding is supported not only by the presence of the Hicksville Trans- portation employees at the yard, but also by the presence of the railroad station agent (an employee of the Long Island Railroad ). Accordingly, the Recommended Order win be modified to reflect this fact. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's picketing at Ogilvie and Campbell's Westbury and Uniondale or South Hempstead projects or at Ruttura's Freeport job exceeded permissible bounds. In each instance, the Trial Examiner considered as evidence of the purported illegality of the picketing the fact that Respondent commenced picketing only after it had appealed to each "neutral" to discontinue patronizing White. But, the Act does not prohibit a union from seeking to enlist the voluntary support of a neutral employer in its dispute with another employer.' And if the union then proceeds to engage in what would otherwise be lawful primary picketing, albeit at the neutral employer's premises, they can- not see how the fact that such picketing followed a request for assist- ance by the neutral employer impugns the legality of the picketing. Accordingly, if the picketing in question was conducted in conformity with Moore Dry Dock standards, they would not hold it violative of the Act. The facts detailed in the Intermediate Report clearly demonstrate to Members Fanning and Brown that the picketing at the Ogilvie and Campbell sites was conducted at all relevant times in conformity with Moore Dry Dock standards. The Trial Examiner found otherwise with respect to the picketing at the Ruttura Freeport job because Re- spondent picketed "the entire length of . . . job . . . instead of re- stricting the picketing to the immediate vicinity of White's transit-mix truck . . . ." However, the picketing was confined to the area along which the White truck, its rotary mixer in operation, was prepared to move to pour concrete. There is no evidence that Ruttura's em- ployees ceased working or were asked by the pickets to cease work. In the circumstances, Members Fanning and Brown would find that the picketing at Ruttura's Freeport job was not designed to enmesh Ruttura's employees in Respondent's dispute with White and that, like the picketing at Ogilvie and Campbell, it satisfied Moore Dry Dock requirements. They accordingly conclude that none of this picketing violated the Act as found by the Trial Examiner. Nor do Members Fanning and Brown agree with the Trial Examiner that Respondent violated the Act by its conduct described below at Asprea's premises during the afternoon of September 12' and at the Ogilvie and Campbell Hempstead project, as found in the Inter- mediate Report. At Asprea, the incident relied upon by the Trial Examiner concerns the exhibition of a picket sign to Asprea employees while a hauling 'Local Union No. 505, International Brotherhood of Teamsters , etc. (Carolina Lumber Company), 130 NLRB 1438; Local 324, International Union of Operating Engineers, AFL- CIO (Brewer's City Coal Dock ), 131 NLRB 228; International Brotherhood of Electrical Workers, Local Union 861, et al (Plauche Electric, Inc ), supra, footnote 1. 7 To the extent that the Trial Examiner has found that Respondent's other conduct at the Asprea plant violated the Act, they adopt those findings . However, they note that the threat to Asprea to picket which the Trial Examiner finds occurred during the afternoon of September 12 Is disclosed by the record to have occurred about the "middle of Septem- ber" or "somewhere between the 8th and 12th of September." LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 427 truck driven by its owner, McGlone, was on the premises. When an unidentified individual inquired as to the trouble, he was told that "This sign . . . is just information [that] this man [McGlone] is bringing sand to J. J. White through a picket line." The Trial Examiner found that the exhibition of the picket sign on this oc- casion could not be justified under Moore Dry Dock because White was not then engaged at the Asprea premises in its regular business of furnishing concrete to construction jobs. However, McGlone was driving exclusively for White and he was at the Asprea premises at White's direction for the purpose of picking up raw materials and supplies ordered by White. In view of these facts, Members Fanning and Brown do not accept the aforementioned reason advanced by the Trial Examiner for finding a violation. Nor do they find in the evidence any other basis for holding that Respondent violated the Act at the Asprea premises on the occasion in question. At Ogilvie and Campbell's Hempstead job, picket Mayer, unable to dissuade Ogilvie from using White concrete, told Ogilvie that "we are going to make sure you never work on . . . union jobs again." In addition to finding that Respondent thereby violated Section 8(b) (4) (ii) (B), a finding unanimously adopted by the Board, the Trial Examiner found a violation of Section 8(b) (4) (i) (B) because Mayer's threat was uttered within hearing distance of employee Mazzone. Members Fanning and Brown do not believe that remarks directed to Ogilvie, which were not intended to, and did not, call for action by any employee, can, because overheard by Mazzone, be found to have induced or encouraged employees within the meaning of Sec- tion 8(b) (4) (i) (B). They would therefore find no violation of that section at the Hempstead job. Except as otherwise noted herein, Members Fanning and Brown adopt the Intermediate Report and conclude that Respondent violated Section 8(b) (4) (i) and (ii) (B) as found by the Trial Examiner.' THE REMEDY The Board having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor SIn so concluding, they find it unnecessary to rely upon the "pattern of conduct" ad- verted to by the Trial Examiner in his footnote 31, and, while they agree with the Trial Examiner that Respondent violated Section 8 ( b) (4) (11) (B) by threatening Asprea with picketing, they note that the threat was to picket in front of Asprea's premises , without qualification or limitation, rather than to engage in lawful picketing which conformed to Moore Dry Dock standards. See General Drivers, Chauffeurs, and Helpers, Local Union No 886 ( The Stephens Company ), 133 NLRB 1393. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the Respondent, Local 282, Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Hempstead, New York, its officers, agents, repre- sentatives, successors, and assigns, shall : 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Asprea and Son Transit Mix Co., Inc., Drapo Construction Co., Inc., Ruttura and Son Construction Co., Columbian Bronze Corp ., Hicksville Transportation Corp., Long Island Railroad , or by any other employer or person engaged in com- merce or in an industry affecting commerce , other than J. J. White Ready Mix Concrete Corp., 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 com- modities, or to perform any services ; or threatening, coercing, or re- straining Ogilvie and Campbell , Asprea and Son Transit Mix Co., Inc., Drapo Construction Co., Inc., Ruttura and Son Construction Co., -Columbian Bronze Corp ., Hicksville Transportation Corp., Long Island Railroad , Louis Sokolov and Sons, Inc., Manuel J. Henriques, Inc., or any other employer or person engaged in commerce or in an industry affecting commerce; where in either case an object thereof is to force or require any of the said employers or any other employer or person, to cease using or handling concrete purchased from J . J. White Ready Mix Concrete Corp., or doing business with the Company. 2. Take the following affirmative action which is necessary to effec- tuate the policies of the Act : (a) Post at Respondent's business offices and meeting halls in Hempstead, New York, copies of the attached notice marked "Ap- pendix." 9 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall , after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered , defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for the Second Region for posting by J. J. White Ready Mix Concrete Corp., and the employers named above at all locations where notices to their respective employees are customarily posted, if they are willing to do so. (c) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith. O In the event that this Order Is enforced by as decree of a United States Court of Appeals , the words "Purs'uant to a Decree of the United States Court of Appeals , Enforcing an "Order" shall be substituted for the words "Pursuant to a Decision and Order." LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 429 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not herein found by the Board. CHAIRMAN MCCULLOCH, concurring : Members Fanning and Brown agree, as I do, with the Trial Ex- aminer's finding that Respondent violated Section 8(b) (4) (i) and (ii) (B) of the Act, and with his recommendation for the issuance of a broad remedial order. However, they disagree with the Trial Examiner's findings as to certain incidents discussed in their opinion. Members Rodgers and Leedom would adopt the Trial Examiner's find- ings in their entirety. Inasmuch as the points of disagreement be- tween Members Fanning and Brown and the Trial Examiner do not substantially affect either the finding of the 8(b) (4) (i) and (ii) (B) violations or the scope of the remedy, I deem it unnecessary to decide whether these incidents were unlawful.lo "But see Teamsters, Chauffeurs cE Helpers Union, Local 279 (William S. Wilson d/b/a Wilson Teaming Company ), 140 NLRB 164 , slip opinion and footnotes 8 and 9 APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AND TO ALL EMPLOYEES OF J. J. WHITE READY MIX CONCRETE CORP. AND TIIE EMPLOYERS NAMED BELOW 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 engage in, or induce or encourage any individual employed by Asprea and Son Transit Mix Co., Inc., Drapo Con- struction Co., Inc., Ruttura and Son Construction Co., Columbian Bronze Corp., Hicksville Transportation Corp., Long Island Railroad, or by any other employer or person engaged in com- merce or in an industry affecting commerce, other than J. J. White Ready Mix Concrete Corp., to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, with an object of forcing or requiring any of the said employers, or any other employer or person, to cease using or handling concrete purchased from J. J. White Ready Mix Concrete Corp., or doing business With that Company. WE WILL NOT threaten, coerce, or restrain any of the employers mentioned in the preceding paragraph, Louis Sokolov and Sons, Inc., Manuel J. Henriques, Inc., Ogilvie and Campbell, or any other employer or person engaged in commerce or in any industry 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting commerce, with an object of forcing or requiring such employers or any other employer or person to cease using or handling concrete purchased from J. J. White Ready Mix Con- crete Corp., or doing business with that company. LOCAL 282, INTERNATIONAL BROTHERHOOD or TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN 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, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all the parties represented, was heard before Trial Examiner Paul Bisgyer in New York, New York, on November 13 and 14, 1961, on complaint of the General Counsel and the answer of Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent. In substance, the complaint alleges that the Respondent, in furtherance of its labor dispute with J. J. White Ready Mix Concrete Corp., herein called White, engaged in certain secondary boycott activities prohibited by Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended. In its answer, the Respondent denies the commission of any unfair labor practices, asserting that it engaged in permissible ambulatory picketing of White's trucks. At the close of the hearing, the parties were given an opportunity to argue their positions orally and to file briefs. Thereafter, only the Respondent filed a brief in which, among other things, it fully argued its motion to dismiss the complaint for lack of jurisdiction, which it made at the hearing. This motion, on which I reserved ruling, is now denied for the reasons discussed below. Upon the entire record,' and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE COMPANIES INVOLVED J. J. White Ready Mix Concrete Corp., a New York corporation with its principal office and place of business in Hicksville, New York, is engaged in the manufacture, sale, and distribution of ready-mixed concrete. During the period from August 19 to September 29, 1961, the date of the complaint, White, in the course of its business operations, purchased cement and other materials valued in excess of $50,000 which were shipped to it directly from sources outside the State of New York. i Included in this record pursuant to stipulation of the parties is the transcript of testi- mony together with certain exhibits In Ivan C McLeod, Regional Director v. Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (J J. White Ready Mix Corp.), Case No. 61-C-704 [199 F Stipp 281], in- stituted in the United States District Court for the Eastern District of New York by the Regional Director under Section 10(1) of the Act for a temporary injunction. On November 29, 1961, the District Court entered an order granting the application. LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 431 The Long Island Railroad, herein called Railroad, is engaged in the transportation .of passengers and freight, for which services it derives revenue in excess of $50,000 annually. It conducts its operations as a link in the chain of commerce , maintaining a freight yard in Hicksville, New York, which is here involved. Hicksville Transportation Corp., herein called Hicksville Transportation, has its principal office and place of business at the Hicksville freight yard where it is engaged in providing and performing transportation and loading services. Heritage Pools, Inc., herein called Heritage, with its principal office and place of business in Syosset, New York, is engaged in the building and construction industry as a swimming pool construction contractor. Woodbury Builders, Inc., herein called Woodbury, is engaged in Woodbury, New York, as a general contractor for motels and other building projects. Manuel J. Henriques, Inc., herein called Henriques, is engaged in Bethpage, New York, in the building and construction industry as a concrete contractor. Asprea and Son Transit Mix Co., Inc., herein called Asprea, is located in Linden- hurst, New York, where it is engaged in the sale and distribution of concrete, sand, gravel, and related building supplies. During the past year, Asprea, in the course of its business operations , purchased cement and other materials valued in excess of $50,000 which were shipped to it directly from sources outside the State of New York. Donald D. Ogilvie and Harry Campbell, doing business as partners under the firm name of Ogilvie and Campbell, are engaged in Belmore, New York, as concrete contractors in the building and construction industry. Drapo Construction Co., Inc, herein called Drapo, has its principal office and place of business in Floral Park, New York, where it is engaged in the building and construction industry as a concrete contractor. Louis Sokolov and Sons, Inc., herein called Sokolov , maintains its principal office and place of business in Huntington , New York, where it is engaged as a general contractor in the building and construction industry. Columbian Bronze Corp., herein called Columbian, is engaged in Freeport, New York, in the manufacture , sale, and distribution of marine propellers, accessories, and related products. During the past year, Columbian manufactured and sold products valued in excess of $50,000 which it shipped to places outside the State of New York. Ruttura and Son Construction Co., herein called Ruttura, has its principal office and place of business in Freeport , New York, where it is engaged in the building and construction industry as a concrete contractor. The Respondent concedes for the purpose of this proceeding , and I find, that White, Railroad, Hicksville Transportation, Heritage, Woodbury, Henriques, Asprea, Ogilvie and Campbell, Drapo, Sokolov, Columbian, and Ruttura are, and have been at all times material herein, engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Alleged fatal variance between the charge and the complaint Before considering the merits of the alleged unfair labor practices, it may be appropriate first to dispose of the contention vigorously urged by the Respondent that the Board lacks jurisdiction herein because the charge is insufficient to support the complaint . Specifically, the Respondent argues that the charge alleges incidents involving secondary employers and employees which are omitted from the complaint while incidents involving other employers and employees are alleged to be violations of Section 8(b)(4)(i ) and (ii)(B). I find no merit in this contention. The charge, which was filed and served on August 22, 1961, alleges, in substance, that the Respondent , in violation of Section 8(b)(4)(i ) and (ii )(B), induced and encouraged individuals employed by four named companies and "other persons," to strike or refuse to handle materials , and threatened, coerced, and re- strained the named companies and "other persons," with an object of forcing the named companies to cease using or handling White products or doing business with White. The complaint, on the other hand, alleges as violations activities involving other secondary employers and employees , as discussed below, which occurred after the filing of the charges herein. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Determinative of the Respondent's contention is the Supreme Court's recent deci- sion in N.L.R.B. v. Fant Milling Company,2 where the Court reaffirmed the following pertinent language in its earlier decision in National Licorice Company v. N.L.R.B.: 3 we can find no warrant in the language or purposes of the Act for saying that it precludes the Board from dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them, while the proceeding is pending before the Board. The violations alleged in the- complaint and found by the Board . . . are of the same class of violations as those set up in the charge and were continuations of them in pursuance of the same objects. The Board's jurisdiction having been invoked to deal with the first steps, it had authority to deal with those which followed as a consequence of those already taken. [Emphasis supplied.] Explaining its reasons for adhering to these views the Court pointed out, as it had done on other occasions, that: A charge filed by the Labor Board is not to be measured by the standards ap- plicable to a pleading in a private lawsuit. Its purpose is merely to set in mo- tion the machinery of an inquiry. [Citation] The responsibility of making that inquiry and of framing the issues in the case is one that Congress has im- posed upon the Board, not the charging party. To confine the Board in its in- quiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. . Once its jurisdiction is invoked the Board must be left free to make full in- quiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularization of a charge. [Emphasis supplied.] 4 In the present case, as in Fant Milling and National Licorice, the Respondent's activities alleged in the complaint were "of the same class of violations as those set up in the charge and were continuations of them in pursuance of the same objects." These activities were "related to" the conduct alleged in the charge and developed "while the proceeding [was] pending before the Board." 5 I therefore find that the charge herein is sufficient to support the complaint and accordingly deny the Re- spondent's motion to dismiss. B. The merits of the alleged unfair labor practices 1. The Respondent's labor dispute with White This case arises as the aftermath of an areawide strike which the Respondent had called on July 1, 1961,6 against employers in the cement and concrete industry over the renewal of their expired collective-bargaining agreement covering truckdrivers. As a result of this work stoppage, all operations, including White's, were shut down. On August 25, most of the companies executed a new agreement with the Respondent thereby ending the strike against them. White was not one of them, although it was a party to the earlier contract. White, however had resumed operations during the strike on August 14 with employees who replaced the sinking transit-mix truckdriv- ers. In protest to this action, the Respondent the next day began picketing White's establishment with the latter's former drivers. There is no question that at least since 2360 U.S. 301. S 309 U.S. 350, 369. N L.R B. v. Pant Milling Company, supra, at 307, 308. It is further noted that the charge herein actually put the Respondent on notice that the Charging Party was also generally asserting unlawful conduct affecting employees and companies other than those named. Moreover, it cannot seriously be argued that recogni- tion of the right of the Board to take cognizance of events occurring after the filing of the charge herein and to include them in the complaint frustrates the basic purpose of the 6-month limitation provided in Section 10(b) of the Act which is designed to prevent the revival of stale charges long after the commission of the alleged illegal acts when relevant evidence might no longer be available to the alleged wrongdoer. Clearly the Respondent was served with the complaint herein not long after the occurrence of the alleged unfair labor practices, many of which were the subject of the Section 10(1) pro- ceeding initiated in the United States District Court for the Eastern District of New York. 11 All events related herein occurred in 1961. LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 433. August 25 the Respondent continued its strike against White for the purpose of secur- ing the reinstatement of the replaced drivers. Picketing of White's premises was initially conducted on a 24-hour basis and spo- radically beginning a few weeks before the hearing in this case. This activity did not affect the new drivers who during the events described below ignored the picket line when they reported for work in the morning and checked out in the evening. In addition, during the course of a day's work, they crossed the picket line when they entered the plant on the average of five or six times to load their transit-mix trucks with cement, sand, gravel, and water and when they left to make deliveries at cus- tomers' construction sites. One of the new drivers estimated that he devoted approxi- mately a total of 50 minutes a day at White's plant while his truck was being loaded and the rest of his working time traveling to and from the jobsites and pouring the- concrete at these locations. It is not intended that picketing of White's premises is unlawful. Rather, this evi- dence was introduced to demonstrate that the Respondent could, and in fact did, picket White's permanent place of business and that picketing at the jobsites unneces- sarily and unlawfully involved employers not concerned in the primary dispute. The implication of this position will be discussed in my concluding findings, infra. 2. The Respondent's activities at construction sites and other places In furtherance of its labor dispute with White, the Respondent extended its activi- ties to the jobsites of White's customers when White's transit-mix trucks were deliver- ing concrete, and to other places where White obtained supplies, as recounted below. Prominent in these activities were the Respondent's business representatives, Vincent D'Ambrosio and John Cody, and White's former drivers, Bill Dunstan and Bob Mayer. The relevant evidence concerning these events are virtually uncontroverted. Where picketing occurred, it is conceded that the signs carried by the pickets disclosed- that the Respondent's dispute was with White. a. The Hicksville railroad yard On August 29, White sent a payloader and a transit-mix truck to the Hicksville freight yard which had received a carload of bags of cement consigned to White. The transit-mix truck was followed from White's nearby plant by Respondent's Business Representatives D'Ambrosio and Cody and several former White drivers, including Bill Dunstan and Bob Mayer. In the freight yard the payloader started to load the transit-mix truck with a specified quantity of cement to be mixed with the sand and gravel already in the barrel of the truck for delivery to a customer. Admittedly, this operation was an integral part of the production process normally performed at White's plant.? While this was going on, the Respondent began picketing in front of the driveway to the yard. On instruction from his superiors, the freight agent stopped the loading of the transit-mix truck but permitted White to use the payloader to haul away the bags of cement to White's plant. When the transit-mix truck left the yard the picketing ceased. The payloader thereafter removed the cement without inci- dent. During the foregoing events, employees of Hicksville Transportation, a steve- doring company located in the freight yard, were performing their regular duties for their employer. b. Heritage Motor Inn project Woodbury, which was under contract to build a motel, restaurant, and swimming pool for Heritage Motor Inn, subcontracted the construction of the swimming pool to Heritage Pools, Inc. The latter company, in turn, subcontracted the work to Tony Calleto. Carmine R. Langone, a White transit-mix truckdriver, testified without contradic- tion that about the end of August, Bill Dunstan trailed him from the White plant to the Heritage job where he (Langone) delivered a load of concrete. He further testi- fied that there was no picketing on this occasion but that he saw Dunstan, with a black book in his hand, speak to the mason contractor and one of the laborers but did not hear what was said. He also testified that he saw Dunstan enter the main lobby of the Inn where painters or paperhangers were working but did not know what, if any- thing, Dunstan said to them. Thereafter, Dunstan left the building and drove off. The only evidence regarding picketing at the Heritage job is contained in the stipulated testimony of Jack Kiffer, vice president of Heritage Pools, Inc., the- 71t appears that before the strike White purchased cement in bulk form which was_ delivered by trailer truck directly to White's premises and blown into a hopper. Transit- nux trucks are usually supplied with cement from this hopper. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD swimming pool subcontractor. According to this testimony, on August 30 Kiffer observed three White trucks arrive at the site with the first truck being followed by a car from which a man got out and entered the motor court office. Just before the first truck began pouring cement, Kiffer "saw a man first on the street not at an entrance and then on the motel property near the pool at all times carrying a picket sign reading, in substance, J. J. White unfair to organized labor." Kiffer also saw the picket speak to some of the men laying cement but he did not hear the conversation. The White trucks and the picket were still there when Kiffer left after being at the site for 10 or 15 minutes. Concerning other activities at this project, the General Counsel called as a witness, Leon M. Roberts, president of Woodbury, the general contractor, who either because of faulty memory or reluctance, did not contribute much to the General Counsel's case. Roberts testified, in substance, that in the latter part of August an individual who identified himself as a former White driver came to his office and asked him what he had to do with the pool job; that he replied that he had nothing to do with it and suggested that he speak to the subcontractor; and that the former driver then told him that he was a family man who was out of work and "wouldn't like to see us using J. J. White's concrete." 8 He further testified that the same or another former White driver returned the next day accompanied by an individual who identified himself as a business agent of Local 282 but whose name he did not know; that, in reply to questions from the so-called union official, he told him that he had nothing to do with the pool job but to see the subcontractor, and that Woodbury was not signed up with the Building Trades Council but had both union and non- union people on the job; and that after the visitors left, he (Roberts) telephoned Mr. White and advised him what had happened and to "get this matter straightened -out," as he did not "want any trouble around" there. c. Ogilvie and Campbell's Westbury job On September 12, Respondent' s Business Representative D'Ambrosio and two unidentified persons followed Alan Olsen, a White driver, who was making a delivery to a job in Westbury where Ogilvie and Campbell, concrete contractors, were laying a concrete slab for a garage floor. Riding in the truck with Olsen was Dan Traynor whom Olsen was training to replace him. At the job D'Ambrosio spoke to Donald Ogilvie, one of the partners of the firm, referred to the strike at White's plant, and requested Ogilvie not to accept the concrete as White was nonunion. Expressing sympathy for White's former drivers who lost their jobs, Ogilvie never- theless replied that he intended to accept the delivery and continue to deal with White and declined D'Ambrosio's offer to obtain other concrete for him. Thereupon, -D'Ambrosio's companions, one with a sign, began to picket. While Olsen was climbing into his truck which Traynor was about to back up into the driveway to discharge the concrete, he was assaulted by one of the pickets. About the same time, the other picket boarded the truck and ripped off Traynor's T-shirt. D'Ambrosio then called the two men and all entered D'Ambrosio's car and drove off before the police, whom Olsen had summoned, arrived. The foregoing events were witnessed by Ogilvie's employee, Vincent Mazzone, who was doing some work preparatory to receiving the concrete. d. Ogilvie and Campbell's Hempstead job Two days later, on September 14, while Donald Ogilvie, his partner Harry Camp- bell, and their employee Mazzone were on a job in Hempstead doing concrete work for a patio, they were visited by Respondent's Business Representative Cody and White's former driver, Bob Mayer. At that time a White truck was preparing to pour concrete. In the presence of employee Mazzone, Mayer tried to dissuade Ogilvie from using White concrete but without success. In reply to Ogilvie's state- ment that he was nonunion and intended to continue to deal with White, Mayer warned that if he was not union, "we are going to make sure you never work on ... [union] jobs again." On this occasion Ogilvie also heard Cody wam the bricklayer, not otherwise identified, who had engaged his firm for the job, that being a union bricklayer he should not employ anyone who used concrete purchased from White, a nonunion company, and that he was going to inform Buddy Long, whom Ogilvie presumed was "the bricklayer's delegate," that the bricklayer had subcontracted concrete work s In other portions of his testimony, Roberts, however, stated that the driver did not expressly say anything about not buying White's cement but that the driver "inferred" as much. LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 435 to such a person. In addition, Cody cautioned the bricklayer that as a union member he should not accept White concrete. There was no picketing here, although Mayer carried under his arm a picket sign which apparently was rolled up. After Cody and Mayer departed, the White truck poured the concrete. e. Uniondale or South Hempstead site Langone, a White driver, testified to an incident that occurred in Uniondale or South Hempstead on a job worked by an individual named Campbell. The witness was not certain whether Campbell was associated with the Ogilvie and Campbell firm. He testified that while making a delivery of concrete, Bill Dunstan, a former White driver, and a person whom he described as a union official other than D'Ambrosio or Cody, urged Campbell not to accept the concrete and thus support their efforts to secure the reinstatement of the striking drivers on their jobs. He further testified that Campbell chided them for the previous attack on a White driver, evidently referring to the Olsen incident, and refused their request. In response, the union official told Campbell to "forget what happened the other time. I'm talking about this sign. That's what I'm interested in." At that time Dunstan was standing there wearing a sign. No evidence was adduced, however, as to whether employees were working on this job. Thereafter Dunstan and his companion drove away. f. Henriques' job in Times Square Shopping Center in Levittown Henriques, a concrete construction contractor, had a subcontract to perform build- ing foundation, sidewalk, and other concrete work in the Times Square Shopping Center. In doing this work, Henriques used concrete purchased from White. Some- time after White resumed operations on August 14,9 Business Representative D'Ambrosio visited Manuel Henriques, undoubtedly an officer of the company, and told him not to buy concrete from White, warning him that, if he did, the Re- spondent would require him to place "Teamsters" on his flat trucks after the strike was over. Henriques protested because, although he had a union-security agreement with the Respondent covering his truckdrivers, neither he nor others in the industry were ever required to employ union members on flat trucks.10 g. Henriques' job in South Merrick In September, Business Representative Cody followed a White transit-mix truck driven by Olsen to Henriques' South Merrick job. At the site Cody told Tony Henriques, Manuel's brother, who was evidently in charge of the job, that he could accept Olsen's delivery of concrete which had already been mixed up but that was all. There was another White truck at the site but its load had not yet been mixed. Cody threatened Tony Henriques that if he accepted any more White concrete he (Cody) "would have his laborers pulled off the job." Henriques, who had become agitated, replied that he would have to speak to his brother and he and Cody there- upon drove off together. No evidence was adduced whether any employees were present during the conversation. h. Asprea plant Asprea is one of White's suppliers of sand and gravel used in making concrete. It is also under contract with the Respondent for its drivers About the first week in September, Business Representative D'Ambrosio visited Neal Asprea, the com- pany's vice president, at its plant and asked him whether he was aware that White was not a union shop When Asprea answered in the affirmative, D'Ambrosio cautioned him that he was not supposed "to load him up" because Asprea was a union plant and White was nonunion. In reply, Asprea stated that he had to supply White with material because he owed White money. D'Ambrosio repeated his admonition and left On September 12, James J. McGlone, who at the times material herein operated his own truck exclusively for White in hauling sand and gravel, drove to Asprea's plant to pick up a load of sand for White. At his destination, McGlone backed his truck under the hopper. In the meantime, Dunstan and Mayer, who followed him 9 Manuel Henriques testified that the above episode occurred probably in July "during the strike " As White had resumed operations on August 14, it is clear that the incident occurred after that date and that Henriques was in error in indicating otherwise. is Henriques customarily used a laborer or helper to drive flat trucks to transport equip- ment to jobs. Henriques also operates three transit-mix trucks whose drivers are meni- hers of the Respondent and are admittedly coveted by the contract 7 08- 0 0 6-6 4-v o f 141-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Asprea plant, entered the grounds where they talked with the Asprea hopper man, truckdrivers, and the latter's shop steward. The drivers and the shop steward are represented by the Respondent pursuant to a contract it has with Asprea. After Dunstan and Mayer spoke to the shop steward, the latter approached McGlone and asked him for his union book. When McGlone said that he had none and was black- listed by the Respondent, the steward told him that he could take this load out but that he (the steward) would first have to check whether McGlone could pick up any more materials at Asprea's plant. The truck was then loaded and McGlone drove off. Joseph Naples, an employee of Asprea who operates a payloader and is a mem- ber of another union, credibly testified, without contradiction, that the two men who followed McGlone to the plant informed him that they were on the picket line at White's premises and that McGlone was not a union member and was driving his truck through the White picket line. Naples further testified that these men also told him not to load McGlone's trucks and that, if he did, they would have a picket line at the Asprea plant.ii As a result of this conversation, Naples testified, he no longer loaded McGlone's truck but instead performed other duties for Asprea. McGlone returned to the Asprea plant about 3 in the afternoon for another load of sand, again being followed in their car by Dunstan and Mayer. McGlone entered the office and asked Neal Asprea to be loaded. McGlone then left the office to back his truck under the hopper. In the meantime, Dunstan and Mayer spoke to Asprea's drivers and the shop steward, after which conversation the latter told McGlone that he could not be loaded. McGlone thereupon complained to Neal Asprea why he could not be loaded and Asprea replied that he did not know what was the matter and went outside and sought the reasons from the shop steward and the employees around him. As McGlone was boarding his truck to leave, Asprea called out to him to wait until he telephoned his lawyer. Thereafter, Asprea returned and advised McGlone to drive away because he did not want any trouble. At some point during the incident, according to the uncontradicted, credible testi- mony of Neal Asprea, the shop steward, in the presence of Dunstan and Mayer, questioned him about his intention to load McGlone. When Asprea indicated that he saw no reason not to, Dunstan and Mayer threatened that, if he loaded McGlone's truck, they would picket the plant immediately and pointed to the picket signs they had in the back of their car. Thereupon, as Asprea testified, he "naturally . . . got worried" and refused to load the truck. After this incident and for an undisclosed period of time Asprea discontinued dealing with White.12 Mayer, who was the only witness called by the Respondent, did not deny the foregoing testimony except that he testified that he was accompanied by Walter Lyons. Mayer, however, further testified that when he arrived in the afternoon of September 12, at Asprea's plant he displayed a sign; that an unidentified employee ap- proached him and asked what was the trouble; and that he denied there was any and said that, "This sign . . . is just information [that] this man [McGlone] is bringing sand to J J. White through a picket line." He also testified that other drivers questioned him and that he told them that he was there just "to represent the sign." i. Great Oaks development project Sokolov was building 18 residential homes in Woodbury. The foundation and other concrete work was subcontracted to Drapo. On September 13, Business Repre- sentative Cody, Dunstan, and Mayer followed Langone, a White driver who was making a delivery of concrete to the Great Oaks development. Langone drove his truck to the place where he was to pour his concrete for a foundation of a house that was under construction. Mayer then began picketing with a sign at the driveway which was on Sokolov's property approximately 70 to 100 feet from the White truck.13 Upon noticing the picket, Irving Sokolov, the secretary-treasurer of the "The record is not too clear whether this conversation occurred in the morning or afternoon of September 12, when a similar incident took place However, in either event the legal effect of the conversation is the same. 11 McGlone also testified to his experience at the sandpit of East Setauket Sand & Gravel Company on about September 14, when he drove his truck there to purchase a load of sand for White Mayer followed him to this place and spoke to several employees and two "bosses" whom he could not name McGlone did not hear any of these conversations but after his truck was loaded one of the "bosses " told him not to bother returning because he did not want "to have any trouble with the union." 13 There is nothing to indicate that the picketing could not be conducted close to the truck or that permission from the general contractor was required in order to do so. In any event, no permission was sought. The record is not too clear whether Dunstan also engaged in picketing. LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 437 general contractor, approached him, asked the reason for the picketing, and was in- formed that White was on strike and the drivers of White trucks were nonunion. Sokolov was then introduced to Cody who similarly advised him that the White drivers were nonunion. Sokolov also expressed the desire not to have the job in- terrupted and asked Cody what he could do to have the picket removed to avoid a work stoppage, especially since the foundation was being poured and had to be finished by nightfall. In reply, Cody told him to discontinue taking concrete from White and that he (Cody) could obtain other concrete for him from a union supplier at the same price as White's. Agreeing to this proposition, Sokolov and Cody went to the former's office to call White to cancel further deliveries. Sokolov telephoned White and was informed that he would have to pay for the concrete anyway because it was already mixed and the trucks were probably en route to the development. After appealing to Cody to permit him to finish the pour for the day and promising to refrain from buying any more concrete from White, Cody agreed to permit the pour to be finished that day "as long as [Sokolov was] not going to do any more business with that outfit." Cody thereupon removed the picket and left with Dunstan and Mayer before the White trucks completed their deliveries.14 There is also evidence that during these events either Dunstan or Mayer expressed disapproval to Subcontractor Drapo's employees who were working on the founda- tion that White concrete was being used and specifically asked one of them whether he intended "to dump" the White truck that was standing there. The employee answered that he intended to obey his boss' orders and do so. Moreover, on this occasion, either Dunstan or Mayer went to his car, secured a sign which was rolled up, mounted a hill which was about 20 feet from the White truck, unrolled the sign, and exhibited it to Drapo's employees. j. Ruttura's Freeport job About September 7, Ruttura, a concrete construction contractor, was engaged in building a 100-foot sidewalk and curb in Freeport. A White truck arrived with a load of concrete followed by Mayer. The truck parked at one end of the job and began mixing the concrete preparatory to pouring. In the meantime, Mayer approached Robert C. McLoughlin, Ruttura's superintendent, where the work was in progress and stated that he was disappointed that Ruttura was still buying con- crete from White and that the only way the replaced drivers could regain their jobs would be for Ruttura and other contractors to refrain from buying concrete from White. After McLoughlin advised Mayer that he was satisfied with White's seivice and product and intended to continue to do business with that Company, Mayer pro- ceeded to picket with a sign from the front end of the parked truck down the street for the full length of the job along which about four of Ruttura's employees were working. After Mayer stopped picketing and left the construction site the truck began to move along the job, discharging its concrete. k. The Ruttura job at Columbian Ruttura also used cement purchased from White for a concrete floor he was in- stalling in the foundry room at Columbian with no less than four of his employees. On September 14, while two White trucks were inside the closed gates of Columbian to make a delivery of concrete to Ruttura, two pickets arrived, one of whom was Mayer and the other not named. The pickets walked back and forth in front of the gates within sight of Ruttura's employees. One of the pickets carried a sign which, as indicated previously, properly identified White as the employer whom the Respondent was striking. The White truck nearest the area of picketing was parked about 30 feet inside the gates and othe other, which was pouring concrete. about 200 feet. Admittedly, the pickets did not request permission from the guard or anybody at Columbian to picket close to the White trucks. As a result of the picket- ing, a driver operating a Perkins Express truck, which makes regular pickups and deliveries for Columbian, declined to cross the picket line to enter Columbian's premises. According to the uncontradicted, credible testimony of Mayer, at that time the Perkins' driver approached him and asked what the sign meant and Mayer answered that it meant that a nonunion White truck was on Columbian Premises. Mayer admitted that he did not tell the Perkins' driver that he could cross the picket line if he wanted to. The pickets drove off when the White trucks finished discharging their concrete and began to depart. Ruttura's Superintendent McLoughlin testified 14 Sokolov testified that, contrary to his advice, Drapo, his concrete subcontractor, never- theless thereafter purchased concrete from White for a small job. Moreover, he testified, he had not had the opportunity to discuss the matter of future deliveries with Drape. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Ruttura will not buy cement from White to complete the Columbian job if that place is picketed. C. Analysis-conclusions The General Counsel contends that the Respondent's activities at the construction sites of White's customers and the business establishment of its suppliers and other persons were designed to disrupt White's business dealings with neutral employers and therefore violated the Act's secondary-boycott provisions embodied in Section 8(b) (4) (i) and (ii) (B). Specifically, he argues that the picketing was unlawful not only under the Washington Coca-Cola doctrine,15 but also when judged in the light of the Respondent's total conduct. It is the Respondent's position on the other hand, that the picketing was directed only against White's transit-mix trucks while they were at the construction sites and hence was permissible under the Moore Dry Dock standards. 16 In addition, it argues that neither inducement or encouragement of secondary employees nor restraint or coercion of secondary employers was proved to support a violation under Section 8(b) (4) (i) and (ii) ( B).17 Generally stated, Section 8(b)(4)(i) and (ii)(B) prohibits a union from inducing or encouraging employees of a secondary employer to refuse to handle products or perform services, and from threatening, restraining, or coercing a secondary employer, where an object of such conduct is to force or require the secondary employer to cease doing business with the primary employer with whom the union has a labor dispute. For a number of years until recently, the Board under its Washington Coca Cola doctrine held that such a proscribed object was conclusively proved where a union picketed a common worksite of primary and secondary em- ployees if the primary employer had a permanent establishment where the union could adequately publicize its dispute. In the Plauche Electric decision, 18 a ma- jority of the Board modified this doctrine to the extent that the mere availability of a permanent place of business which the union could picket would no longer be a controlling factor but, instead, would be considered as one of the evidentiary cir- cumstances in determining the union's real objective. As additional evidentiary guidelines for ascertaining objective in common situs situations, the majority re- affirmed its reliance upon the standards enunciated in Moore Dry Dock.19 How- ever, while literal compliance with these standards may indicate the primary nature of the picketing, manifestly such an inference is also not conclusive but may be negatived by other relevant evidence disclosing the union's true objective deliberately to enmesh neutral employees and employers in a dispute of no direct concern to them.20 16 Brewery and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters, etc. (Washington Coca Cola Bottling Works, Inc ), 107 NLRB 299 30 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549. "The Respondent also urges that relief should be denied herein as White, the Charging Party, was guilty of unfair labor practices and therefore comes to the Board with unclean hands I find no merit in this contention as it is too well settled that "one illegality should not excuse another " N L R B v Plumbers Union of Nassau County, Local 1157, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO (Bomat Plumbing of Heating), 299 F. 2d 497 (C A 2) Moreover, the issue of the Charging Party's alleged unfair labor practices was not fully litigated at the hearing Indeed, the Trial Examiner sustained the Respond- ent's objection on the ground of immateriality when John J White, the president of the Charging Party, attempted to clarify an answer relating to discrimination which he had given on cross-examination by the Respondent's counsel in the earlier section 10(1) pro- ceeding in the United States district court. is International Brotherhood of Electrical Workers, Local Union 861, et at. (Plauche Electric, Inc.), 135 NLRB 250 19 The minimum requirements for lawful picketing in common situs situations, as set forth in Moore Dry Dock, are as follows. (1) The picketing must be strictly limited to times when the sites of dispute is located on the secondary employer's premises; (2) at the time of the picketing the primary employer must be engaged in its normal business at the situs, (3) the picketing must be limited to places reasonably close 'to the location of the sites, and (4) the picketing must disclose clearly that the dispute is with the primary employer. 20 In Plauche Electric, supra, the majority observed that the Moore Di y Dock standards "also are not to be applied in an indiscriminate `per se' basis, but are to be regarded merely as aids in determining the underlying question of statutory violation " See also Plumbers of Pipefitters Local No 471, etc (Leo E Murray, Inc, An Individual, d/b/a "Wyckoff Plumbing), 135 NLRB 329, N L R.B. v Highway Truckdrivers and Helpers, LOCAL 282, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 439 On the other hand, even where picketing is found to have an unlawful object, it does not automatically follow that it also induced and encouraged secondary em- ployees within the meaning of clause (i) of Section 8(b)(4). Adopting the test laid down by the Court of Appeals for the Second Circuit,21 a majority of the Board recently ruled that it is only such inducement or encouragement as is intended or likely to cause a work stoppage or refusal to perform services that is barred. Whether this is the case in a given situation depends upon all the facts and circum- stances surrounding the picketing.22 Certainly, if an actual work stoppage or re- fusal to perform services results, inducement is established,23 although it is settled law that the Act does not require that a union's activity be successful to warrant an unfair labor practice finding.24 Turning to the instant case, it is clear from the recital of the uncontroverted facts in section III, B , of this report that the Respondent picketed White's premises to secure the reinstatement of White's replaced drivers. Not being successful in these efforts, the Respondent sought to enlist the support of White's customers , suppliers, and other companies by picketing and engaging in other activities at the customers' construction sites when White's trucks were making deliveries of ready-mixed con- crete, and at the place of business of the other persons. They did this, although dur- ing the course of a working day White's drivers crossed the picket line at White's premises when they entered on the average of five or six times to load their transit- mix trucks for delivery to customers and when they reported for work in the morning and left in the evening. On the basis of controlling principles and the entire record in the case, there can be little doubt, and I find, that at least an object of the Re- spondent's activities was to implicate neutral employers in its dispute with White by forcing or requiring them or their concrete contractors to cease using concrete pur- chased from White or doing business with that company. I further find that the Respondent intended to attain this object through the inducement and encourage- ment of employees of secondary employers not to handle White concrete or per- form services, and through threats, restraint, and coercion of secondary employers, and thereby violated Section 8(b)(4)(i) and (ii) (B) of the Act. In reaching this conclusion , I rely particularly on the following events as establishing unlawful inducement of employees within the meaning of clause (i): 25 1. Picketing at the driveway to the Railroad's Hicksville freight yard where em- ployees of Hicksville Transportation were working. Although White was at that time performing normal production work in loading a transit-mix truck , there is no evidence that the Respondent took any steps to confine its picketing to an area as reasonably close as possible to the truck , the situs of the dispute, as required by Moore Dry Dock.26 2. Picketing Ogilvie and Campbell's Westbury job on which their employee was working, after Ogilvie rejected Business Representative D'Ambrosio's request not to accept concrete from White.27 Local No 107, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Riss & Co ), 300 F 2d 317 (C A 2) , NLRB. v. International Hod Carriers, Building and Common Laborers' Union of America, Local 1140, AFL-CIO (Gilmore Construction Co.), 285 F. 2d 397, 401 (CA.'8), cert. denied 366 U S. 903. 2i N L R B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc. (Royal Typewriter Co ), 228 F 2d 553, N L R B v. Local 50, Bakery & Confectionery Workers International Union, AFL-CIO (Arnold Bake)s, Inc), 245 F 2d 542. 22 Upholsterers Frame & Bedding Workers Twin City Local No 61, etc (Minneapolis House Furnishing Company), 132 NLRB 40; Local 459, International Union of Electrical, Radio and Machine Workers, AFL-CIO (Friden, Inc.), 134 NLRB 598 22 N.L.R B. v. Business Machine and Office Appliance Mechanics Conference Board, Local 459, etc. (Royal Typewriter Co ), supra at 560. 21N L R B v Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station WINS) ), 226 F. 2d 900, 904-905 (CA. 2) 25 Cf. Sales Drivers, Helpers & Building Construction Drivers, Local Union 859, et at. (Campbell Coal Company), 116 NLRB 1020, enfd. sub nom . Truck Drivers and Helpers Local Union 728, etc v. N.L R, B, 249 F. 2d 512 (C A.D.C ), cert denied 355 U S 958 26 There is nothing in the record to indicate that the Respondent sought permission from Railroad to enter its yard to picket close to the truck and thus avoid any possible inter- ruption to Railroad's or Hicksville Transportation's operations International Brother- hood of Boilermakers, etc., Subordinate Lodge No. 92 , etc. (Richfield Oil Corporation), 95 NLRB 1191, 1193. 27 No clearer evidence can be presented that, despite the language of the sign which admittedly identified White as the primary employer, the picketing was actually utilized 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The warning that White's former driver, Mayer, gave to Ogilvie at his Hemp- stead job, in the presence of his same employee and Business Representative Cody, that the Respondent would take steps to prevent that company from working on union jobs because Ogilvie refused to refrain from dealing with White. 4. Urging employees of Asprea not to load White's truck with sand, threatening one of its employees to picket the plant if White's truck was loaded, exhibiting a picket sign to Asprea's employees,28 and actually inducing employees not to load White's truck. 5. Picketing the Great Oaks development at a distance of 70 to 100 feet from the White's transit-mix truck, in disregard of the Moore Dry Dock requirement, and otherwise appealing to Subcontractor Drapo's employees not to handle White cement. 6. Picketing the entire length of Ruttura's Freeport job on which about four em- ployees were working instead of restricting the picketing to the immediate vicinity of White's transit-mix truck, as Moore Dry Dock prescribes. 7. Similarly conducting its picketing in front of the gates to Columbian plant where Ruttura and his employees were doing concrete work, without first attempting to secure permission to conduct this activity inside the premises near White's transit- mix trucks . It is noted that the picketing was effective in inducing a truckdriver servicing Columbian not to enter the plant after he spoke to a picket who did not inform him that the picket line was not intended to enlist his support.29 I further find that the Respondent unlawfully threatened , restrained, and coerced neutral employers within the meaning of clause (ii) of Section 8(b) (4) (B) of the Act. As fully detailed above, the Respondent, among other things, picketed Ogilvie and Campbell's Westbury jobsite and Ruttura's Freeport and Columbian jobsites when those companies refused to accede to the Respondent 's request to terminate their business dealings with White; picketed the Great Oaks development where Sub- contractor Drapo was performing the concrete work, which activity the Respondent discontinued when General Contractor Sokolov agreed not to use White concrete in the future ; picketed Railroad's freight yard in a manner which did not confine the Respondent's dispute to White's transit-mix truck; picketed Campbell 's Uniondale or South Hempstead job under circumstances clearly indicating that this activity was aimed at forcing Campbell to cease using White concrete ; 30 made diverse threats to Ogilvie and Campbell , the bricklayer who subcontracted the concrete work to them on the Hempstead job, and Henriques , in reprisal for using White concrete on their respective jobs; and warned Asprea that it would post a picket line at its plant if it loaded White's truck with sand. Finally, I find insufficient evidence of unlawful activity by the Respondent at the Heritage Inn project and the East Setauket Sand & Gravel Company plant ,31 and, accordingly, I shall recommend dismissal of the allegations of the complaint insofar as these events are embraced therein. as a pressure tactic to induce Ogilvie and Campbell's employee to cease performing services in order to force his employer to discontinue using White concrete Cf Inter- national Brotherhood of Boilermakers, etc, Subordinate Lodge No 92; etc (Rachfield Oil Corporation), supra. Since the assault on White's driver, Alan Olsen, and his trainee at this job does not add anything to the unlawful employee inducement found above, or employer restraint and coercion, later found, it is not necessary to determine whether the assault also constituted inducement of Ogilvie and Campbell's employee or restraint and coercion of that company. "It is difficult to see how exhibiting the picket sign at Asprea can be justified tinder the Moore Dry Dock principle, as the Respondent seems to argue Not only was White not engaged at the Asprea premises in its regular business of furnishing concrete to con- struction jobs, as Moore Dry Dock contemplates, but the Respondent's other conduct shows that the display of the picket sign was designed to involve Asprea and its employees in its dispute with White. " Sales Drivers, Helpers & Building Construction Drivers, Local Union 859, at al. (Campbell Coal Company), supra. 50 International Hod Carriers, Building and Common Laborers' Union of America, Local No 1140, AFL-CIO (Gilmore Construction Company), 127 NLRB 541, enfd. as modified in no respect material herein 285 F 2d 397 (C.A. 8), cert. denied 366 U.S. 903. ii Although the evidence does not establish that the Respondent unlawfully resorted to threats, restraint, or coercion when the East Setauket Company discontinued selling sand to White, these circumstances nevertheless reflect the Respondent's pattern of conduct and may be considered in determining the Respondent's objective N L R B v. Associated Musicians, Local 802, AFL (Gotham Broadcasting Corp. (Station 'WINS)), 226 F. 2d 900, 904 (C.A. 2). GENERAL TUBE COMPANY IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 441 The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the companies other than Heritage and Woodbury described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, to the extent found to have been unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and its free flow. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Moreover, as I am persuaded by the Respondent's widespread efforts revealed in the record to force customers and other companies to boycott White concrete or to refrain from doing business with White, I find that it is appropriate in order to avoid a continuation and recurrence of such unlawful conduct to recommend that the Respondent be enjoined from engaging in similar activities with respect to other persons having business dealings with White. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. White, Railroad, Hicksville Transportation, Ogilvie and Campbell, Henriques, Asprea, Drapo, Sokolov, Ruttura, and Columbian are employers engaged in com- merce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b) (4) of the Act. 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging the employees of the companies named in paragraph 1, above, other than White, Railroad, Sokolov, and Henriques, to engage in a strike or a refusal in the course of their employment to use or handle concrete purchased from White or to perform any services, and by threatening, coercing, or restraining all the companies named in paragraph 1, above, other than White, with an object in each case of forcing or requiring these employers to cease using or handling White concrete or doing business with White, the Respondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices at the Heritage and Uniondale or South Hempstead construction projects or at the plant of East Setauket Sand & Gravel Company. [Recommended Order omitted from publication]. General Tube Company and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case No. 7-CA-3998. March 13, 1963 DECISION AND ORDER Upon charges duly filed by International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventh Region , issued a complaint dated December 11, 1962, against General Tube Company, herein called the Respondent, al- leging that Respondent had engaged in and was engaging in unfair 141 NLRB No. 42.