Local 299, Teamsters

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 299, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Ind. and American Motor Lines, Inc. Case 7-CC-336. October 31, 1966 DECISION AND ORDER On June 13, 1966, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Exam- iner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 'The Trial Examiner found, and we agree, that Fleetwing Terminal Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and ( 7) of the Act. We further find, as alleged in the complaint and admitted in the answer , that Fleet- wing is an employer engaged in commerce or in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter the "Act," came on to be heard before Trial Examiner William J. Brown at Detroit, Michigan, on April 25, 1966 .1 The charge of unfair labor practice was filed on March 4 and duly served on the above -indicated Respondent, hereinafter sometimes referred to as the "Union ." The complaint herein was issued March 14 by the General Counsel of the National Labor Rela- tions Board, hereinafter the "General Counsel" and the "Board " respectively, acting through the Board's Regional Director for Region 7. The complaint alleged, in addition to jurisdictional matter and the agency on behalf of the Union of two individuals, Martin Haggerty and Lewis Sutherland, the commission of the part of the Union of unfair labor practices defined in Section 8 (b) (4) (i ) (B) of the Act. Respondent's duly filed answer denied the commission of the unfair labor practices alleged. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues . Subsequent to the 1 Dates hereinafter relate to the year 1966 unless otherwise indicated 161 NLRB No. 50. LOCAL 299, TEAMSTERS 673 hearing briefs were filed by the General Counsel and the Union which have been fully considered. On the basis of the entire record and my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE EMPLOYERS INVOLVED The pleadings herein establish, and I find, that the Charging Party, American Motor Lines, Inc.,2 hereinafter sometimes "American," is a corporation organized under the laws of the State of Michigan and maintaining its sole office in Detroit, Michigan, where it is engaged in business as a common carrier by truck of iron and other products within the State of Michigan. During the calendar year 1965, a repre- sentative period, American derived gross income in excess of 100,000 from trucking operations of which more than $50,000 was derived from trucking services per- formed for several business enterprises each of which annually produces goods valued in excess of $50,000 and shipped from Michigan to customers in other States. Fleetwing Terminal Corporation, hereinafter sometimes "Fleetwing," is a Mich- igan corporation with its principal office and place of business in Detroit, Michigan, where it is engaged in the operation of a public warehouse. During the calendar year 1965 Fleetwing derived revenues in excess of $50,000 from services furnished various business enterprises each of which annually manufactures at its Michigan plant goods valued in excess of $50,000 and shipped from such Michigan plant directly to out-of-State customers. On the basis of the foregoing, I find and conclude that the operations of the employers involved herein affect commerce within the meaning of the Act and that assertion of jurisdiction is warranted. II. THE LABOR ORGANIZATION INVOLVED The pleadings establish that the Union is a labor organization within the purview of Section 2(5) of the Act. It appears from a stipulation of the parties entered to at the hearing that Martin Haggerty and Lewis Sutherland were, at all material times, acting as agents of the Union. II. THE UNFAIR LABOR PRACTICES The complaint alleges, and the Union's answer denies, that on February 2 Hag- gerty and Sutherland, acting on behalf of the Union, induced and encouraged indi- viduals employed by Fleetwing to engage in a refusal in the course of their employ- ment to perform services, an object thereof being to force Fleetwing and other persons engaged in commerce to cease doing business with American. It appears from a stipulation of the parties that for a period of at least 3 years prior to the events of February 2 the Union has had a labor dispute with American. It also appears from the testimony of Haggerty that his practice is, when he has reason to believe that an American truck is loading at a particular warehouse, to ascertain the location of such American trucks and establish picket lines around them where it appears advisable in furtherance of the union position in the dispute with American. On the morning of February 2, two American trucks had been dispatched to the Fleetwing warehouse to be loaded with steel for a firm known as Thompson Pro- ducts and Ford Motor Company's Industrial Engine Division. This area of the warehouse is under direction and control of Gerald Cusimano, Fleetwing's shipping and receiving clerk, who performs the clerical work on bills of lading and similar documents and instructs the two other employees assigned to the Thompson and Ford Motor accounts, crane operator Robert Scitowski and his helper, Clyde, what and when to load. Sometime before noon on February 2, Sutherland came to Cusimano's office and asked if Fleetwing was loading American trucks. When Cusimano replied that they were, Sutherland used Fleetwing's telephone to report to someone (presumably Haggerty) that American trucks were being loaded by Fleetwing. Soon thereafter Haggerty came to the Fleetwing warehouse, and proceeded to Cusimano's office. 2 Prior to November 9, 1965, this company was known as "Pazan Motor Freight, Inc." 264-188-67-vol. 161-44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The driver of the second (i.e later arriving) American truck, identified only as "Shorty," was in the office and Haggerty, according to Cusimano told him that he should have stayed with another line. Shorty then left with his truck, unloaded According to Cusimano's account, Haggerty told him that the American trucks were nonunion trucks which the Union had been picketing for 2 years and that he thought they should not continue to load them According to Cusimano this state- ment was made while the first truck was still in the loading process. The testimony of Scitowski and Haggerty however, would indicate that at that time the first Amer- ican truck had been loaded and a truck of another carrier destined for Ford Motor Company was loading at the time of this conversation. In any event, Cusimano called Fleetwing's vice president, Rosa, for instructions and when he informed Hag- gerty that he had been told to proceed with loading, Haggerty, according to Cusi- mano, said that if they continued loading they would throw a picket line around the warehouse. Haggerty denies making this latter statement but asserts that he did at that stage tell Cusimano that wherever American trucks go he goes with his picket line As the General Counsel points out, Cusimano was a disinterested witness. His account was also impressive in its spontaneity and I credit his testimony as to the conversation with Haggerty. Scitowski testified that after loading the first American truck and while engaged in loading the material for Ford referred to above, Haggerty, after identifying him- self as acting for the Union, told him that he should not be loading the American trucks with steel for Thompson as he had a picket line around them. Sometime thereafter Scitowski entered Cusimano's office while a telephone conversation be- tween Haggerty and Rosa was in progress At that time Cusimano informed him that the second truck would not he loaded apparently due to the fact that Shorty had by then driven off without loading Shortly thereafter, Scitowski entered the office again and Haggerty said, either to him or to Cusimano or to both, that they should not load those steel trucks and if they continued to do so Haggerty would have to throw a picket line around the Fleetwing warehouse. Haggerty denied having any conversation with Scitowski on the date in question. Scitowski is, as the General Counsel points out, a member of a sister Teamsteis local and there is no basis for inferring any interest on his part in aiding the cause of American I found him a credible witness on the basis of his straightforward answers and I credit his account that Haggerty told him at a time when the second American truck was still on Fleetwing's premises, that he should not load American trucks The Union contends (1) that Haggerty did no more than inform those to whom he talked at Fleetwing that he had a picket line around American which followed their trucks, (2) that he addressed his remarks only to Cusimano who is a supervi- sor and not an employee within the purview of the Act, and (3) that in any event, the incidents of February 2 at the Fleetwing warehouse are de minimis within the rule of Brown Transport Corp., 144 NLRB 590. With respect to (1) above, I resolve the factual issue in favor of the accounts of General Counsel's witnesses to the effect that Haggerty did more than merely advise them of his picket line and in fact directly solicited Cusimano and Scitowski not to load American trucks. As to the status of Cusimano, the evidence in this case indicates that as a ship- ping and receiving clerk of Fleetwing assigned to Thompson Products and Ford Motor accounts, he does no more than the routine clerical functions involved in receipt and dispatch of materials. Any instructions he gives to Scitowski or Clyde appear to be minor ministerial functions and there is no basis for inferring that he has the authority outlined in Section 2(11) of the Act. The fact that he communi- cated directly with Fleetwing's vice president when confronted with Haggerty's position is not of sufficient significance to warrant an inference that he had super- visory authority over Scitowski and Clyde or that he was himself a managerial agent of Fleetwing. With respect to the Union's contention that the case involves a de minimis situa- tion, the short answer is that it is not de minimis to American which, according to its president, Barrand Pazan, had a substantial volume of business with Thompson Products disrupted on February 2 and thereafter at least up to the date of the hearing The Union's reliance on Brown Transport is misplaced. There, during the course of a lengthy strike, the labor organization issued detailed printed instructions to LOCAL 299, TEAMSTERS 675 pickets designed to conform picketing to legitimate methods and evidence indicated that with insignificant exceptions the picketing conformed to the instructions. The basis of the Board's dismissal of the complaint appears to be that the comparatively few deviations from instructions did not affect the basic character of the picketing which, save for the few minor deviations, was permissible primary picketing. The instant case presents direct appeals, unconnected with an actual picket line, by a responsible agent of the Union. The instant case presents a situation where the Union's agent directly appealed to employees of an employer with whom the Union had no dispute in an attempt to induce them to cease work for their employer with the object of forcing their employer to cease doing business with American with whom the Union has a dispute. This is secondary action of the type proscribed by Section 8(b)(4)(i)(B). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Union set forth in section III, above, occurring in connec- tion with the operations of the employers set forth in section I, above, have a 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 thereof. V. THE REMEDY In view of the findings above to the effect that the Union has engaged in unfair labor practices affecting commerce as defined in Section 8 (b) (4) (1 ) (B) it will be recommended that it be required to cease and desist therefrom and take such affirm- ative action as appears necessary and appropriate to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. American and Fleetwing are employers engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act 3. By inducing and encouraging employees of Fleetwing to engage in a refusal in the course of their employment to perform services with an object of forcing Fleetwing to cease doing business with American, the Union has engaged in an unfair labor practice within the scope of Section 8(b)(4)(i)(B) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case it is recommended that the Union, its officers, agents, and representatives, shall: 1. Cease and desist from inducing and encouraging individuals employed by Fleetwing or other persons engaged in commerce or in an industry affecting com- merce to engage in a refusal in the course of their employment to process, trans- port, or otherwise handle any goods, articles, materials, or commodities or to per- form any services where an object thereof is to force or require Fleetwmg or any other person to cease doing business with American. 2. Take the following affirmative action necessary to effectuate the purposes of the Act: (a) Post at its offices, meeting halls, and at all places where the Union custom- arily posts notices to its members copies of the attached notice marked "Appen- dix." 3 Copies of said notice, to be furnished by the Regional Director for Region 7, after being duly signed by the Union's authorized representative, shall be posted I In the event that this Recommended Order is adopted by the Board, 11ie v or( b, "a Deci- sion and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enfoiced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the voids, "a Decision and Order." 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by it immediately upon receipt, and maintained thereafter for a period of 60 con- secutive days. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for Region 7 for transmittal to and posting by Fleetwing in its warehouse and by American on its trucks, if either or both be willing so to post, signed copies of the aforesaid notice. .(c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of receipt of this Decision , what steps it has taken to comply herewith.4 IT IS FURTHER RECOMMENDED that unless within 20 days from the date of receipt of this Decision the Union notify the Regional Director, in writing, that it will comply with the terms hereof, the Board issue an order requiring it to take such action. APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 299, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT induce or encourage any individuals employed by Fleetwing Terminal Corporation or any other person engaged in commerce or in an industry affecting commerce to engage in a refusal in the course of their employment to process, transport, or otherwise handle any goods, articles, materials, or commodities with an object of forcing or requiring Fleetwing or any other employer engaged in commerce to cease doing business with American Motor Lines, Inc. LOCAL 299, 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. If members have and question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boulevard , Detroit, Michigan 48226, Telephone 226-3244. 4In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Decision , what steps the Respondent has taken to comply herewith." Sonora Sundry Sales, Inc., d/b/a Value Giant and Retail Clerks Union Local No. 588, Retail Clerks International Association, AFL-CIO. Case 2O-CA-3674. November 1, 1966 DECISION AND ORDER On July 1, 1966, Trial Examiner James R. Webster issued his Decision in the above-entitled proceeding, finding that the Respond- ent had not engaged in any of the alleged unfair labor practices and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Exam- 161 NLRB No. 53.