Freight, Construction, General Drivers

FREIGHT, CONSTRUCTION, GENERAL DRIVERS 187 Freight, Construction, General Drivers, Warehouse- men and Helpers Union, Local 287, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and Buck's Butane-Propane Service, Inc. Case 20-CC-873 Respondent. The issues will be more fully set forth hereafter. Upon the entire record, including observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: October 30, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 14, 1970, Trial Examiner Allen Sinsheimer, Jr., issued his Decision in the above-entitled proceed- ing, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel also filed a motion for consideration of the Trial Examin- er's Decision by the full Board.' 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 The Board denies the General Counsel's motion for en bane consideration of the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding was heard at San Jose, California, on December 2 and 3, 1969. The amended complaint herein issued on November 10, 1969,1 based on a charge filed March 21, 1969, alleges a violation of Section 8(b) (4)(i)(ii)(B) of the Act, by virtue of certain picketing and other conduct engaged in by the FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE CHARGING PARTY The complaint alleges and Respondent admits that Buck's Butane-Propane Service, Inc., herein called Buck's, is a California corporation with an office and place of business in San Jose, California, where at all times material it has been engaged in the sale and distribution at wholesale and retail of butane and propane gas products and in the retail sale and service of gas and butane appliances. In the course and conduct of its business operations in the calendar year prior to the issuance of the complaint, Buck's received gross revenues in excess of $500,000. In the course and conduct of its business operations during said year, it purchased and received goods valued in excess of $50,000 from suppliers located in California, which goods and materials were received by said suppliers directly from points outside California. Buck's, in the course and conduct of its business during said calendar year, sold goods and materials valued in excess of $50,000 to firms located in California, each of which firms during said period shipped goods valued in excess of $50,000 directly from their respective operations in California to points outside of California and/or received goods valued in excess of $50,000 which were shipped to each of said firms at its respective operations in California directly from points outside California. Buck's Petroleum Transport, Inc., herein called Transport, a California corporation with a place of business in San Jose, California, at all times material has been engaged in the sale and distribution at wholesale of butane and propane gas products. In the course and conduct of its business operations Transport, during the said calendar year, sold goods and materials valued in excess of $50,000 to firms in California each of which during the same period shipped goods valued in excess of $50,000 directly from its respective operations in California to points outside California and/or received goods valued in excess of $50,000 which were shipped to each of said firms at its respective operations in California directly from points outside California. Buck's and Transport are, and at all times material herein have been, affiliated businesses with common stockholders, officers, directors, and managers. Said officers and managers form and administer a common labor policy for said companies and said companies constitute a single integrated business enterprise. Based on the foregoing admitted allegations, I find that the Charging Party Buck's is engaged in commerce and that its operations affect commerce within the meaning of the Act. I also find that Transport is engaged in commerce and that its operations affect commerce within the meaning of the Act. 1 The original complaint issued September 30, 1969. 186 NLRB No. 35 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED followed or picketed its trucks at various locations. Further, Respondent also contacted certain persons who were customers of Buck's and/or Transport and in most such instances it picketed Buck's trucks while at the location of the customer. The General Counsel contends that, although the picketing at the various locations may have, with one exception, conformed to the requirements of the rules laid down by Moore Dry Dock2 that the question to be determined is the objective of the Respondent as manifest- ed not only by the picketing but by its other conduct viewed in the light of all of the circumstances. The Respondent, on the contrary, contends that if it has met the requirements of Moore Dry Dock, that further consideration of its motivation or objective is not in order. Respondent's position, in essence, is that through the Moore Dry Dock criteria the Board has made the adjustments necessary to effect a practical reconciliation between Section 8(b)(4) and Section 13 of the Act. Respondent accordingly is contend- ing that the Moore Dry Dock requirements are all inconclusive while the General Counsel is contending that Moore Dry Dock merely institutes certain criteria which, if met absent anything more, would negate a violation, but that the ultimate statutory test is that of objective or motivation. The problem inherent herein is one that has been troublesome throughout the history of the Taft- Hartley Act. It arises because of the fact that all picketing, even at the main place of business of the Respondent, has certain secondary aspects. In literal terms Section 8(b)(4) could be interpreted to prohibit every strike anywhere since a strike may not only affect employees of the struck employer but employees of other employees who do business with the struck employer. Section 133 which is designed to guarantee the right to strike (with certain limitations) could become a nullity if Section 8(b)(4) were so literally applied. There is also the proviso (adopted in 1959) to Section 8(b)(4)(i)(ii)(B) which must be construed in this connection.4 The Moore Dry Dock rules applicable to ambulatory picketing of trucks or common situs picketing were adopted by the Board to effect a reasonable reconciliation of the conflict.5 The subjects of Moore Dry Dock criteria, ambulatory or common situs picketing, and the matter of "objective" under 8(b)(4)(i)(ii)(B), as well as in other picketing situations under the Act, have been considered in numerous decisions and law review articles .6 The General Counsel's position as to his right to introduce and have considered other evidence relating to the picketing and the question of picket at the siteof itsdispute asagainst theright of a secondary employer to be free from picketing in a controversy in which it is not directly involved. When a secondary employer is harboring the situs of a dispute between a union and a primary employer, the right of neither the union to picket nor of the secondary employer to be free from picketing can be absolute. The enmeshing of premises and situs qualifies both rights. [footnote omitted] In the kind of situation that exists in this case, we believe that picketing of the premises of a secondary employer is primary if it meets the following conditions: (a) The picketing is strictly limited to times when the situs of dispute is located on the secondary employer' s premises; [footnote omitted ] (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; [footnote omitted] (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. 6 Among the latter see Lesnick, "Gravamen of the Secondary Boycott," Freight, Construction, General Drivers, Warehousemen and Helpers Union, Local 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called either the Union or Respondent, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent on certain dates between March 4, 1969 and March 20, 1969, engaged in certain acts in violation of Section 8(b)(4)(i)(ii)(B) of the Act. More specifically, the complaint alleges that on March 4, 5, 7, 11, and 14, Respondent caused picket lines to be authorized, established, and maintained at certain specified locations. It further alleges: that on March 4, 1969, Respondent informed a representative of Al Nunes Trucking that in the event Nunes continued doing business with Buck's, Nunes premises would be picketed by Respondent; that on about March 18, Respondent informed a representative of Owens Corning Fiberglass (herein called Owens), that in the event Owens continued doing business with Buck's, Owen's premises would be picketed by Respondent; ° that on about March 18, Respondent informed a representative of Zellerbach Paper Company, herein called Zellerbach, that in the event Zellerbach continued doing business with Buck's, Zeller- bach's premises in San Jose would be picketed by Respondent; and that on or about March 20, 1969, Respondent, by its business representative, John Gleason, informed a representative of Tri-Valley Growers, herein called Tri-Valley, that in the event Tri-Valley continued doing business with Buck's, Tri-Valley's premises in San Jose would be picketed by Respondent. A. The Issues The complaint alleges that an object of the conduct of Respondent "has been to force or require" various named companies to cease doing business with Buck's and/or Transport. The issue revolves around whether picketing was properly conducted and whether other conduct was proper in relation to a strike which occurred at Buck's and/or Transport. The evidence will reflect, as set forth more fully hereafter, that Respondent picketed not only at Buck's and/or Transport's main place of business, but 2 Sailors Union of the Pacific AFL (Moore Dry Dock Company), (1950) 92 NLRB 547 at 549. For these rules, see fn. 5, post. 3 Section 13 provides: Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike , or to affect the limitations or qualifications on that right. This reads : "Provided, that nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful any primary strike or primary picketing." 5 Moore Dry Dock, supra, at p. 549: When the situs is ambulatory, it may come to rest temporarily at the premises of another employer. The perplexing question is: Does the right to picket , follow 'the situs while it is stationed at the premises of a secondary employer, when the only way to picket that situs is in front of the secondary I employer's premises? Admittedly no easy answer is possiblelEssentially the problem is one of balancing the right of a unionlto FREIGHT, CONSTRUCTION, GENERAL DRIVERS 189 objective and motivation is supported by a number of cases but there still remains the question of what other conduct and circumstances must occur to find a violation where the rules laid down by Moore Dry Dock have been complied with.? B. Preliminary Facts and Discussion Buck's principal facility in San Jose is located at the intersection of 13th and Commercial Streets and consists of a retail store and a storage area which includes a garage and parking area for trucks. Respondent Union was certified on December 12, 1968, by the Board as the bargaining representative of Buck's delivery and service employees. Respondent and Buck's held several bargaining sessions in January 1969, but were unable to reach agreement on contract terms. Jack Gleason, a business representative of Respondent who had been negotiating with Buck's, informed the employees on February 10 that there was an impasse in negotiations. Thereafter a strike occurred and picketing commenced for the purpose of obtaining a contract. Picketing continued from February 10 through August 5. The number of pickets at Buck's Commercial Street location was ordinarily 5 or 6 although it appears that on occasion pickets may have ranged as high as 45 to 50. The picket signs read: "Buck's Gas Unfair to Teamsters Local 287," or "Buck's Petroleum Transport Unfair to Teamsters Local 287." Buck's employees, both during and throughout the entire duration of the strike, reported to the Buck's Commercial Street location every workday morning. Buck's supplies propane gas to residential and commercial customers in San Jose and the surrounding area and normally utilized about seven to nine drivers in this operation .8 Buck's employees, accordingly, are ordinarily making deliveries throughout the area surrounding San Jose. If during the course of the day an employee completed all his assignments, he would call in to learn about orders and, if there were any (except for one driver),9 would return to the principal location in San Jose to receive them. Although not specifically so stated, inferentially it appears that the employees would return to the main location at the end of the workday so that they would be at Buck's principal place of business at least twice every workday. A few weeks after the picketing started, the Respondent admittedly also engaged in picketing at the premises of a substantial number of Buck's customers listed in paragraph 6 of the amended complaint. In those instances where the trucks were followed, Business Representative Gleason, who is clearly, and I find, an authorized agent of Respondent with respect to all material matters herein, gave the pickets their instructions, and provided them with picket signs.la Gleason testified with respect to his instructions concern- ing the picketing that he told the men they had the right to 62 Columbia Law Review 1363 and particularly discussion at 1377 et seq. See also Lesnick, "Job Security and Secondary Boycotts," 113 U. of Pa. 1000 at 1007, and see article by Prof. Engel in 52 Virginia Law Review 189 particularly at 200-202. 7 See Plauche Electric, 135 NLRB 250 at 255; L.G. Electric, 154 NLRB 766 at 767; Catalano Bros., , Inc., 175 \NLRB No. 74, and see Brown Transport Corp. v. N.L.R.B., 334 F.2d 30 (C.A. 5)(1964) Rev. 144 NLRB 590. Particularly pertinent is the recent split decision (2 to 1) of the Board in Estes Lines, Inc., 181 NLRB No. 121 which will be considered more follow the equipment and picket it wherever it went but if they were asked whether they were picketing the place of business of the location where the truck was situated, other than the principal place of Buck's, that they were to say that the signs indicated that they were not picketing that place of business but that of Buck's. Gleason said he told them to follow the trucks wherever they went and to get as close to the equipment as they could reasonably get. The picket signs used were, as previously set forth, "Buck's Gas Service Unfair to Local 287" except for the picketing of certain tanker equipment which occasionally came into San Jose from Paso Robles where the name of "Buck's Petroleum" was used instead of "Buck's Gas Service." The General Counsel contends that Gleason was evasive in testifying as to his intent and that Gleason's description of the picketing as "informational" was not a complete answer. He refers to Gleason's testimony that Respondent used picketing away from a primary part of the premises to obtain a contract in the following words, "I would say yes at that. It would indicate we want as much to come from picket action as we can possibly receive. " [Emphasis supplied ] The latter was an evidently honest response. While Gleason in part may have been testifying so as to limit the impact of his instructions and action as to the picketing of the trucks at the locations, other than the principal place of business of Buck's, and while this may establish that Gleason was familiar with the secondary boycott provisions of the Act, I do not consider nor find that such makes the picketing at the locations where the trucks were situated violative of the Act. The fact that Gleason may have hoped or expected or anticipated that such picketing might have secondary effects, including effects upon employees of other employ- ers, does not per se make the picketing illegal in view of the criteria laid down in the Moore Dry Dock case. Gleason's thoughts in the matter could not therefore make illegal what would otherwise be legal. If Gleason's thoughts, hopes and expectations were kept to himself, this would not affect the legality of the picketing which met the Moore Dry Dock criteria. On the other hand, if Gleason took other action with respect to the picketing, such might change the result in the case. This would depend on whether the other action (1) went outside or beyond the Moore Dry Dock criteria or (2) otherwise illegally induced secondary employees to refuse to work in violation of Section 8(b)(4)(i)(B) or threatened, coerced, or restrained any person with an object in violation of Section 8(b)(4)(ii)(B). Hence, the matters to be considered will be first what variations from Moore Dry Dock, criteria, if any, were there? In this connection, the General Counsel has conceded that there was only one variation which will be specifically discussed.tl There will also be considered any other situations which may appear to raise a question with fully, post. 8 Buck's also has an over-the-road tanker transport business operating out of Paso Robles under the name of Buck's Petroleum. 9 This driver whose route is a substantial distance would receive additional orders by phone and return to San Jose at night. 10 It was stipulated that all business representatives of the Union performed the same duties and functions as Gleason testified he performed. 11 Involving certain picketing at Hemphill, post. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to complaince with Moore Dry Dock's standards. Second will be considered evidence as to any conduct which has occurred other than the picketing and whether or not such was merely complementary to proper picketing or whether it was more than that in relation to the sections of the statute allegedly violated; that is whether such conduct induced or encouraged employees in a manner violative of Section 8(b)(4)(i)(B) or threatened, coerced or restrained any person in violation of Section 8(b)(4)(ii)(B). The fact alone of certain secondary effects is not decisive. The question is whether these were achieved or obtained in a manner outside or beyond the criteria enunciated by the Board in Moore Dry Dock as applicable to ambulatory picketing and common situs picketing.12 C. Additional Facts and Discussion It may well be that the Estes case, supra,13 may be diapositive of the issues herein with possibly one or two exceptions. However, that case as noted involved a difference of viewpoint on the part of the Board members with the Chairman dissenting in the two to one opinion. In the light thereof and the issues therein and herein. I believe that it is desirable to consider in some detail the evidence adduced by the General Counsel so that the Board may have before it the facts for comparison both with Estes and also for such evaluation or resolution as may seem appropriate. Although the Moore Dry Dock criteria, in essence, reflects a balancing of interests, they are not exclusive. There has previously been set forth certain testimony or admissions on the part of Gleason and also that the General Counsel does not contend except in one instance that the picketing was in violation of the Moore Dry Dock standards. He does raise a contention that the Respondent has not established that it complied with the Moore Dry Dock standards although stating that he is not pursuing this contention. The General Counsel alleged certain picketing to be in violation of the Act. Respondent admitted that it had picketed but stated that the picketing was lawful. It would accordingly appear incumbent on the General Counsel to offer evidence that such picketing was unlawful rather than the Respondent be required to prove that it was lawful. In any event in the instances set forth with the one exception noted, it is clear first that the instructions (given by Gleason) as to picketing directed lawful picketing in compliance with Moore Dry Dock and that the picketing, by itself where it occurred, complied with those standards unless the fact that in one or two instances there may have been a trespass involved which possibly might raise a question as to validity of the picketing. However, no such contention has been raised and in one of the instances in question at Mrs. Silvia's, there could be difficulty in 11 In this connection, I am not giving weight to the fact of there being a principal situs where such picketing might have occurred nor do I view this as an element on which I can predicate a decision herein in the light of the Board's rejection of the same, at least in its more recent decisions. I am aware that certain cases have not uniformly followed this, including the Brown Transport case referred to, supra, where the Court gave definite consideration to the view of minority Board member Leedom (which had been the position of the Board at one time). Among possible positions are that the existence of a principal situs is (I) irrelevant or (2) relevant but not decisive or (3) decisive. Either of the latter positions would currently appear to be contra to the current Moore Dry Dock criteria as to proper determining where the road ended and her property began. I also note that there may be a question in two or three instances whether in fact there was picketing or whether the pickets merely followed a truck and either sat in their car or walked around without picket signs. These involved: (1) incidents on property of Zelma Silvia involving her as an individual customer and a Philco facility property which is reached through a private road through the Silvia property; (2) a situation at the Saratoga Golf Course; (3) and one at Ford, all discussed further hereafter.14 Except for an incident involving picketing at Hemphill, the General Counsel does not appear to have shown any picketing that would not comply with the Moore Dry Dock criteria as to the place and location of the pickets and the picket signs. Accordingly, the issues revolve about other conduct which occurred either in connection with the picketing or threat of picketing or are related thereto. Essentially it appears that the General Counsel relies on the (1) stated attitude of the Respondent with regard to what it was seeking from the picketing, (2) the circulation to various other locals of the Teamsters Union of a letter dated May 12, 1969, advising of the strike and stating: "If any of the enclosed places of business are under contract with your Local, it would be appreciated if you would notify them that Buck's is on the `We DO NOT Patronize List.' ", (3) direct statements made to various employers with respect to the picketing including particularly: (a) requests not to continue to do business with Buck's, or (b) threats that doing business with Buck's would lead to pickets, which latter will be discussed or (c) suggestions that secondary employers might do business with someone else while the labor dispute continued, and (d) one instance in which testimony reflects that a particular employer who did business with Buck's was threatened with broken windshields if this continued. As part of the foregoing, the General Counsel relies on testimony by Gleason in which he referred to solving the customer's problem with respect to any picketing that might occur, implying that this involved a threat. Finally, the General Counsel refers to the picketing of a truck at Hemphill's across the ' street from Buck's when no employees of Buck's were present at that location. His argument is that the total impact of all the foregoing clearly shows a motive or object of pressuring secondary employers to cease doing business with the Respondent. Subject to testimony relating to the particular incidents to be discussed hereafter, the pleadings establish that on or about March 4, Respondent maintained a picket line at the premises of California Canners and Growers, on or about March 5 a picket line at the premises of T & L Farms, on or about March 7, a picket line at the premises of Saratoga Golf and Country Club, on or about March 7, a picket line at the premises of Philco Technical Institute, on or about ambulatory picketing since such would then become a factor to consider in the overall situation, since the Board currently has taken a position. I do not consider that I should directly attempt to reevaluate the elements and matters leading thereto but will seek to consider matters not covered thereby. Whether the latter approach can properly resolve the case will appear more fully hereafter. 13 Footnote 7. 14 Even as to these, whether picketing or not, the General Counsel does not claim nor does there appear to be definite proof of violation of Moore Dry Dock standards from any conduct at those facilities. FREIGHT, CONSTRUCTION, GENERAL DRIVERS 191 March 7, a picket line at the premises of Frank Silvia, on or about March 11, 1969, a picket line at the premises of Ford Motor, on or about March 14, a picket line at the premises of Owens Coming Fiberglass. The complaint so alleged and Respondent admitted maintaining a legal picket line at these premises.15 However, the testimony with respect to the above raises some questions as to when or whether a picket line was maintained at certain locations. For instance, there is testimony that at Saratoga Golf and Country Club the pickets sat in their car but did not picket, and that at the Philco Technical Institute and Mrs. Frank Silvia the picket signs were not taken out or displayed but were in the car. Also as to pickets at Ford Motor Company, the testimony was in the nature of hearsay from a representative of the Company with testimony from certain employees who had driven there that they did not picket although admittedly they had engaged in conversations with a representative of Ford. After Respondent's pickets had followed a Buck's truck to Owens Corning premises, Gleason went there and spoke to a management representative. According to Gleason, he told him: "I'd like to inform you that we do have picket action against Buck's Gas Service and Buck's Petroleum Transport, Inc.," and that "We are following that equipment when it's making deliveries at this time. In fact, we are concentrating our efforts very heavily in this area; and I wish to just inform you that this is the action that we're taking so that if by chance a delivery is made to Owens, naturally we will have pickets following the equipment-so that you will know who these pickets are and primarily what they are doing." [Emphasis supplied] But I also emphasized the fact that we were only picketing Buck's Gas Service and Buck's Transport, Inc.-that we were not picketing the company or trying to upset his employees. Gleason testified as follows as to a conversation in March, with John Wilson, an official of Tri-Valley Canners & Growers, another customer of Buck's: Well, as John came on the phone I introduced myself to him; and he knows me by name. And I just said, "John, I wish to inform you that we have a sanctioned strike with Buck's Butane Gas, and we are picketing the equipment to-no matter where its destination may be; we are following the trucks on their deliveries. And I am aware that you are a customer of Buck's, and in as much as you have contracts with this local union and the Cannery Local union, I thought it would be of the best interest to all if I would inform you of the picket action, and that it would be very possible if the truck was making deliveries at your canneries at any place of business where you have a tank, that there would be pickets -of Local 287 would be picketing Buck's Gas Service; and if you have any questions with regard to the picket action, I would appreciate it if you would call me direct, because I am in charge of that picket action." [Emphasis supplied.] Gleason also initiated a call in March to a Mr. Ken O'Brien of the Container Corporation with whom Local 287 has a contract with respect to transportation. Although the complaint does not specifically refer to the Container Corporation,16 the General Counsel's position is that this incident goes to motivation. Gleason testified as follows: Again I talked to Mr. O'Brien and indicated to him the strike action of ours with Buck's Gas Service, and I understood that he was a customer of theirs, and I just wanted to go on record with him also that by chance if a truck of Buck's was making a delivery on your premises that we would be picketing that equipment, and that equipment only. [Emphasis supplied] Gleason further testified that his purpose in calling O'Brien was: "Basically out of courtesy to the individual, inasmuch as we have contracts with that company." Gleason said that by courtesy he meant that places of business might not be aware of action by the Union even though they have a contract with that local union. He was asked: "Did you want Container Corporation to stop doing business with Buck's" and responded: "No, sir, I did not. I wanted to inform them that we had picket action." O'Brien testified with respect to this matter: Mr. Gleason advised me that there was a-the local, 287, was involved in a labor dispute with Buck's Butane, and in view of the fact that they were supplying us with fuel, he thought it was-well, he told me that he was advising me, in light of the fact that Buck's was a supplier, that pickets were following the trucks, and that we might expect the appearance of pickets on our property. And he suggested that we find another supplier, at least until the labor dispute was settled and to avoid confusion on our property with the pickets and so on. [Emphasis supplied] O'Brien further testified that he asked Gleason what he meant by confusion and that Gleason said that "other truck drivers attempting to make deliveries were making pickups on our property might be confused as to what the purpose of the pickets were or they might-but they might be inclined to be in sympathy with the pickets." [Emphasis supplied] I am crediting O'Brien's version since it is in accord with the evidence as a whole. Gleason also went to see Ben Salamoni, an official of Georgia Pacific, another company (not named in the complaint) with whom Local 287 had an agreement concerning transportation. Gleason testified that during March he drove to Georgia Pacific, contacted Salamoni and told him: "Ben, I'd like to inform you that we have picket action with Buck's Gas Service, and I understand that you are a customer of that company; and I wanted to inform you that we are following the trucks, no matter where they go-no matter where they make their deliveries. So it's very possible, Ben, that in them making a delivery here, we may be here with pickets picketing Buck's Gas Service. " [Emphasis supplied ] Gleason was asked the basis of his informing Salamoni and 15 I have at this point not referred to the admitted allegation of a picket 16 Unless otherwise stated, the various incidents are alleged in the line at Hemphill's which will be discussed with respect to its legality complaint. hereafter. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied: "To inform the customer that Buck's was on strike, yes." According to Gleason, although the picket signs had Local 287 on them, he wanted Salamoni to know which business agent to call if he had a problem. Gleason was asked: Q. Oh, you were letting him know that you were that business agent to get in touch with? A. If he had a problem. What I am saying, if the pickets followed equipment and by chance there was some controversy to the picket action, that I wanted people to be aware of who to call at our Local union, because I didn't want him talking to other business agents who were not connected with it. When asked why other business agents could not have referred the matter to him, Gleason answered: "That wouldn't have solved the customer's problem at that time." [Emphasis supplied.] Another business agent of Respondent, Peter Cancilla, also contacted Mrs. Nunes of Nunes Trucking Company and asked her if her company received gas from Buck's. When she said it did, he told her of the strike against Buck's. Mrs. Nunes testified on direct examination that Cancilla then told her: "maybe they will put pickets on our place." On cross-examination, Mrs. Nunes testified: He says maybe they would bring some pickets out if Buck's was out at our place, because like they have been saying here, it was to be with the truck. She was then asked on cross-examination: Q. Could it be that he said we are picketing Buck's truck. A. No. He said he was going to bring pickets out, but I didn't in fact know whether it was our place or to go with the truck. Q. And it is possible that he could have said "We will bring pickets out if Buck's comes out to make a delivery." A. Yes. I note the foregoing in connection with Mrs. Nunes' testimony is not entirely clear. It is evident that there was some discussion about picketing if a Buck's truck came out but in Mrs. Nunes' mind apparently it was not clear whether the picketing would be related solely to the time the truck was there or not. On March 11, the pleadings admit picketing occurred at Ford Motor Company at Milpitas. Joseph Matacia, industrial relations manager of Ford at Milpitas, received information through his "chain of command" that there were pickets at the premises. According to Matacia he called the guard and told him to tell the pickets the picketing was illegal and they should leave. He was thereafter informed they had left. Later in the day, he was told the pickets had returned. Matacia and his labor relations supervisor then went to the truck gate. He saw no pickets there and was told by the guard the'pickets were in an automobile in the hourly employees' parking lot. He went to the car and asked the men what was on their mind and what could he do for them. One of the men identified himself as a member of a Teamsters local which was on strike at Buck's Butane. He testified the man was James Mahan, a prior witness then in the hearing room. According to Matacia, Mahan told him about the strike, Matacia asked why he was there and was told: And he said, "There's a truck of Buck's unloading. Do you know that?" I said, "Yes, I know that" and I so indicated-we wanted to stop unloading-words to this effect. I said, "Well, the truck is just about finished, I'm told. It will be leaving here very shortly. I have checked and determined that we do not expect another delivery for approximately two weeks; so believe me that the truck is going to leave here shortly. Why don't you fellows leave also?" The men then left and Ford did not patronize Buck's again until August. James Mahan, a striker at Buck's, testified on direct examination as to this incident-that he was standing close but that Matacia was talking to another striker, Paul Peterloa rather than to him. According to Mahan, Peterloa asked Matacia about stopping the delivery and Matacia said they couldn't reverse the pumps. They left shortly after that. On cross-examination, Mahan testified while he was at Ford, they were not picketing but were in a private automobile inside the parking lot. The first time was about 6:00 a.m. and they left about 9:00 a.m. They walked around but had no signs. Mahan first testified he believed a Buck's truck was already there. The next time was on a different date about 2 weeks later at about 8:00 a.m. In subsequent testimony, Mahan said, one of the times a truck was there, the other it wasn't but he wasn't sure as to which time. Buck's was making a delivery to an individual customer, Mrs. Silvia, when two men whom she testified told her they were picketing-they were following the driver-came on to her property. She requested them to leave but they refused. According to Mrs. Silvia, one of the men17 "told me why didn't I buy my propane from someone else" or `you could always buy your gas from someone else." [Emphasis supplied ] I note in this connection as in others where Paul Peterloa was involved that he was one of the persons sent out by the Local to follow the trucks and accordingly, authorized to act on its behalf although not necessarily directed to make such statements. However, I conclude the Local is responsible therefor.18 As set forth, pickets went to the Saratoga Golf Course. Although the pleadings admit picketing, according to testimony of Mahan, they didn't picket but sat in the car at the edge of the golf course with signs sticking up. They also walked around without signs. Other testimony reflects the trucks at Saratoga were from 100 to 400 yards from where Mahan and Peterloa parked. There is also testimony of Mahan that he and Peterloa did not actually picket Philco or Silvia but had signs in the car, one lying upside down on the dash and the other standing up. Further there is an incident involving Central Concrete Company where Gleason and Business Agent Foley went and saw Fleet Superintendent Herbert. Gleason initially testified as to the matter involving the Central Concrete 17 From other testimony, it is evident she was referring to Paul Peterloa. 1713, TXD at 1724; District 50, United Mine Workers 106 NLRB 903, TXD 18 See International Union of Electrical Radio Workers, etc., 134 NLRB at 922. FREIGHT, CONSTRUCTION, GENERAL DRIVERS Company that Respondent had a collective-bargaining agreement with Central Concrete. He did not know that it purchased its butane from Buck's but went on the premises to talk to Superintendent Herbert to find out who filled the storage tank with butane. Gleason said he told Herbert Using the words over and over again -it's very possible that we will be following a Buck's truck if it makes a delivery here and of course we do have a contract with many of the Teamsters here and I just wanted to let you know" and . .it's very possible that if they make a delivery here we will be here with picketing Buck's Gas Service." [Emphasis supplied] Superintendent Herbert testified that Gleason "advised me that (Local 287) was having some sort of negotiations, or attempting to have with Buck's butane; and he advised me to purchase my fuel requirements elsewhere other than from them." [Emphasis supplied] According to Herbert, Gleason also said, "That you wouldn't want any broken windshields?" [Emphasis supplied] On cross-exami- nation Herbert was asked whether Gleason's remarks were made "on the level horse play or bantering orbocular level." Herbert responded, "Let's say it wasn't on a friendly level when somebody advises you to-in other words, effect the change in the operation of their business for our benefit .. . Gleason was subsequently again asked about the incident and about the broken windshields conversation and testified "I actually don't recall making any statements of that kind, no." He was specifically asked by the Trial Examiner whether he didn't remember or whether he was saying he didn't say it and responded that he didn't remember. I conclude that this was not a direct denial and I find that the statement was made as testified to by Herbert, whom I consider to be and find a credible witness. During March, a truck of Buck's was situated across the street at the location of Hemphill's Service Station. Buck's from time to time had certain tire repairs made there and the truck then had a flat tire. This lot was owned by one of the owners of Buck's but leased to Hemphill. No employees of Buck's were at that time with the truck or performing any services in connection therewith. However, five pickets were picketing the truck in sight of Hemphill personnel. This did result in Louis Canepa, vice president of Buck's who saw the picketing, crossing the street to inquire concerning the picketing. Shortly after his presence the pickets left. Hence, the picketing of the truck did not last long, perhaps for 10 minutes. There is no question that this did not conform to Moore Dry Dock standards regardless of whether or not the location was across the street or the lot owned by one of the owners of Buck's. However, it is true that the incident was not of lengthy duration. More will be said about this subsequently. FINDINGS AND CONCLUSIONS Except for the incidents involving the Concrete Company and the Hemphill incident, it is questionable whether there are any facts herein that differ markedly from the Estes case, as will be shown upon analysis As for the Concrete 19 I note that the Container incident was also introduced as to motivation and is not specifically alleged as a separate violation 20 The General Counsel, of course, contends Moore Dry Dock is applicable only where its criteria and nothing else substantial is involved 21 The General Counsel also refers to a letter of February 13, 1969, 193 Company incident, while it goes to motivation it was not specifically alleged as a separate violation nor was it litigated as such. The record is clear that the General Counsel offered evidence as to the Concrete situation only as to the question of motivation or object and not as an alleged violation in and of itself.19 The General Counsel in his brief contends that the Respondent's secondary objective in violation of the Act is established despite Moore Dry Dock.20 He refers to conversations instituted by a picketing union, regarding picketing which otherwise meets Moore Dry Dock requirements and asserts: "It is such direct evidence of conversations and contacts instituted by Respondent Union in the instant case in the context of its overall conduct which establishes Respondent's unlawful motive in picketing at the premises of the various neutral employers." The General Counsel lists: first, Respondent's extensive campaign to notify Buck's customers of its dispute with Buck's; second, the forwarding of a list of Buck's customers by Respondent to sister unions with a request they communicate with these customers; third, Respondent's "campaign" to inform customers picketing would occur in the event they received deliveries of propane from Buck's; fourth, informing secondary employers that "it would be to the best interest of all" to know about the picketing; fifth, either asking customers why didn't they buy their gas elsewhere or telling them to expect pickets if they didn't find another supplier while the labor dispute continued or advising that they would have pickets if Buck's made a delivery or requesting that the customer stop unloading a Buck's truck; sixth, Gleason's testimony that he merely wanted neutrals to know whom to contact to solve "the customer's problem" which "problem" the General Counsel argues Gleason was seeking to cause by the picketing; seventh, the testimony about Central Concrete, coupled with the threat to break windshields; and eighth, that at Hemphill all of the requirements of Moore Dry Dock were not met.21 The General Counsel argues persuasively from all the foregoing that the object of the picketing was clearly in violation of Section 8(b)(4). He contends that such establishes this as the object. The General Counsel may well be correct. However, there is the Moore Dry Dock decision as interpreted in the Estes case 22 to contend with. What does Moore Dry Dock say?23 It says that if certain specified conditions of picketing have been complied with then there is no violation on the part of a Respondent at least if such is all that is involved. These conditions are set forth, supra, in footnote 5. How does this compare with the Estes decision? In that case, Trial Examiner Bott had found a violation concluding that certain acts to be set forth had clearly shown a secondary object and purpose. Chairman McCulloch, dissenting, agreed with the Trial Examiner. The Board majority, consisting of members Fanning and Brown, held otherwise, reversed the Trial Examiner, and dismissed the case. The record therein included acts similar to those herein in many respects among which the Board found from Gleason to another local in which he referred to a member of that local who crossed a picket line and stated "I'm sure you do not condone this type of action by your members " 22 Footnote 7, supra 23 92 NLRB 547 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included several measures "designed to limit the secondary effects of the common situs picketing." One of these was that Respondent caused to read to employees a letter stating that the steward at all union terminals be advised that the National Agreement did not give union employees the right to stop work while an Estes vehicle and driver were being picketed at another carrier's terminal. At a meeting the right to conduct ambulatory picketing of Estes truck was discussed. Instructions were read to employees which emphasized the manner in which the picketing was conducted at premises of other companies in order to conform to Moore Dry Dock's standards. Employees were given cards to give to anyone inquiring about the picketing, stating that they had been instructed to say nothing around this terminal. The Respondent therein sent letters explaining that it would engage in ambulatory picketing, to approximately 125 secondary employers likely to be affected. They were advised that the picketing would conform to Moore Dry Dock standards and be directed exclusively at Estes employees. Permission was also sought to enter the premises so as to picket closer to the drivers, but it was stated that if this permission were not granted, picketing outside the gates would occur. The final provision in the letter requested the cooperation of the secondary employer and asked that he cease doing business with Estes during the course of the strike. It asked the addressee not to consider this latter a "threat" but stated his cooperation would "greatly assist Estes to obtain a contract." The picket signs stated that the picketing was addressed only to Estes. Of 120 picketing instances therein, the General Counsel offered only 3 indicating what he considered an unlawful secondary objective. In one of these, Respondent's President Hodson told a manager of another employer he would give him 2 minutes to get the Estes truck outside the gate and if not be would "throw a picket line up outside. " The truck was ordered off the premises until the manager's superior was contacted. In a second incident, another employer's dispatcher was told that Respondent "would be putting up a picket line at the gate." The dispatcher asked what did he do now. Respondent's president replied "You have an Estes truck here. " The dispatcher then ordered the Estes truck off the property. The third incident involved a truck followed to another motor line. Respondent's president told its officials that the secondary employer was "in trouble" and asked if it had received Respondent's letter. The secondary employer was told by the Respon- dent's president that unless the Estes truck left, the picketing would start. The truck was ordered off the premises. Respondent's president had stated the picketing would last only while the Estes truck was on the premises. There was also some testimony that a general union membership meeting was held at which the union president was asked by one of the members if an individual was crossing the picket line could he be brought up on charges before the Union's executive board and the union president replied, "That any member could charge another member with conduct unbecoming a member any time he so desired...." The president also had stated when asked about crossing a picket line that the members "would have to use a little discretion. "24 Neither the Board majority nor the Trial Examiner found evidence that any members were, in fact, threatened, or otherwise interfered with in what they actually did in ambulatory picketing areas. The Board stated that the Trial Examiner had found that the remarks of the union president coupled with the request in the Respondent's letter that they cease doing business with Estes and the union president's remarks at a meeting indicated that the Union intended to give the secondary employer two choices: cease doing business with Estes or face a picket line "with all the normal consequences that a picket line brings no matter how primary it is painted'." The Examiner had found the entire course of picketing violated 8(b)(4)(i) and (ii)(b), and the three threats to picket violated 8(b)(4)(ii)(B). He did not find the statements at the March 2 meeting to be violative. The Union excepted and the Board majority agreed with the exceptions and stated: "Contrary to the Trial Examiner we are unable to conclude that Respondent's conduct evidences an intent or object proscribed by the Act. " The Board then said: The Trial Examiner properly notes, and, indeed, no party disputes, that the picketing itself was rigorously tailored to meet the prescriptions of Moore Dry Dock. The .picket signs unambiguously designated Estes as the primary disputant, and the picketing itself lasted only as long as the Estes trucks remained on the property of the neutral employer. As a result, the neutral employers themselves, and all others working or having business there, were notified that Respondent's dispute was solely with Estes. In this context, we do not find Hodson's remarks to neutral employers on the three occasions described above to constitute threats, coercion, or restraint within the meaning of Section 8(b)(4)(ii)(B). In each of the three statements, Hodson announced his intention to start picketing if the Estes truck remained on the neutral's property. We find this to be nothing more than a legitimate expression of Respondent's intention to exercise its unquestioned right to picket Estes at the neutral employers' sites in the lawful manner prescribed by the Board. Such statements do not constitute threats within the meaning of Section 8(b)(4) of the Act, contrary to the Trial Examiner's finding, nor are they evidence that the picketing which followed was motivated by an unlawful objective. Similarly, we find no evidence of an unlawful motive in the letter sent by Respondent to the neutral employers, stating its intention to picket Estes trucks while they were on the premises of the neutral, and announcing that such picketing would be in strict conformity with Moore Dry Dock standards. Quite to the contrary, the letter, by assuring the neutral employers that any such picketing would meet Moore Dry Dock standards, and by disclaiming any intention to threaten the neutral, negates any unlawful secondary objective. For these reasons, and when viewed in the context of the letter as a whole, the mere request, made in the last paragraph of the letter, that the neutral employer cease doing business with the primary employer during the course of the strike, cannot be viewed as substantial evidence of an unlawful intent. We note that a bare request addressed to a neutral employer 24 Cf. with In. 21, supra. FREIGHT, CONSTRUCTION, GENERAL DRIVERS asking that it cease doing business with a struck primary is not itself violative of Section 8(b)(4)(ii)(B) 25 For all these reasons, we perceive in the letter nothing which would support the General Counsel's theory that the picketing of February 18 and thereafter had a proscribed secondary objective. [Footnotes except for "Servette" omitted] We regard Hodson's equivocal statements at the March 2 meeting as an equally untenable basis for inferring that the picketing was tainted by an unlawful object. [Emphasis supplied ] All these considerations in combination persuade us, contrary to the Trial Examiner, that the record as a whole does not reflect an illegal object behind the picketing by Respondent. Accordingly, we shall dismiss the complaint in its entirety. CHAIRMAN MCCULLOCH, dissenting, state: Contrary to my colleagues, I would affirm the Trial Examiner's carefully reasoned decision. As the Board, Member Fanning dissenting, pointed out in L.G. Electric [footnote omitted] the ultimate question in these commonsitus picketing situations is the union's true object. While the picketing itself may have conformed to Moore Dry Dock standards, that fact alone is not determinative. [Footnote omitted] In my opinion, the evidence as a whole shows that Respondent's true objective, at least in part, was to reach the secondary employers and their employees by its picketing. The letter sent to the neutral employers strongly implied that the picketing at their sites and the cessation of business between themselves and Estes were inextricably interwoven in the Union's motivation. Against this backdrop, Hodson's remarks to the three neutrals cannot be interpreted other than as ultimatums to cease doing business with Estes or face the consequences of a picket line. Hodson made it unmistakably clear the picketing was intended to provide economic leverage against the primary employer by enmeshing the secondary employers with whom the primary was doing business. The "external evidence," LB E. W. v. Local 480, supra, at 1089, establishes/beyond doubt that the picketing was meant to coerce the neutral employers and induce their employees to strike, rather than merely to follow the primarydispute in a lawful manner. Thus, like the I Trial Examiner, I I would find that Hodson's remarks to the three employers violated Section 8(b)(4)(ii)(B) and, the Moore Dry Dock presump- tion having been rebutted on the record viewed as a whole, I would affirm'thel Trial IExaminer's I finding ^of violations of Sections 8(b)(4)(i) and (ii) (B), of the Act. [Emphasis supplied.] The foregoing, with some variations and two exceptions to be noted, is very similar to the factual situation herein. While arguable differences exist between the instant case and Estes, I do not consider them sufficient to cause a different result. The Central Concrete and Hemphill incidents, in my judgment, would not be sufficient without more to change the result. 25 A' L R B v Servette, 377 U S 46 26 The Board recognized this in Moore Dry Dock, supra, where it also stated at page 548. Section 8(b)(4)(A) is aimed at secondary boycotts and secondary strike activities It was not intended labor dispute with an employer 195 This brings us back to the question of what is really involved herein. As indicated the Board majority sees the case one way while Chairman McCulloch and Trial Examiner Bott find the secondary object. Were they wrong? Was the General Counsel wrong then and here? Actually, it is quite obvious that the object was secondary if looked at as to purpose, but is it any different from the uncomplicated Moore Dry Dock situation (except where there is no principal place of business to picket)? What happens to necessary accommodation of 8(b)(4), Section 13 and the proviso to 8(b)(4) if Estes is not correct? One question to consider is what does or may picketing normally do and whom does or may it affect in given situations. Picketing at a principal place of business may have an effect on (1) strikers, (2) nonstriking employees, (3) replacements, (4) customers and their employees, (5) suppliers and their employees, (6) trucking and other delivery companies and their employees and, (7) the remainder of the public. Whatever secondary effects are here involved are necessarily subordinate to the right to strike and picket for clearly primary purposes.26 Proceeding from to proscribe primary action by a union having a legitimate that situation to the typical Moore Dry Dock ambulatory situation, where there is a primary place of business that could be picketed, what would the Respon- dent expect to have occur from its picketing at the place of the secondary employers where the trucks are found, that it could not accomplish in some way other than picketing? Certainly if it merely wanted to notify the secondary employer, it can write him a letter and say that it is on strike at the primary and wishes him not to do business with the primary without any picketing being involved. The latter is evidently not a violation of Section 8(b)(4)(u)(B).26 Similarly, it could notify strikers, employees or replace- ments at the principal place of business and unless its object is harassment, what purpose can it have in following the drivers? If it seeks to notify the employees of the second employer what is its purpose in doing that? It appears fairly obvious what that is. The Union may also incidentally be notifying the general public or other suppliers, purchasers or truckers to or from the secondary (who happen to be there) but if its purpose is merely informative, it may advertise this on its unfair list or otherwise in many ways more extensively. Hence, it becomes fairly evident that what is really desired is to bring the pressure of the picket on the second employer either through his employees' refusal to handle goods or otherwise or perhaps refusal of the secondaries' suppliers, purchasers, or trucking compa- nies refusing to enter the premises while a picket is there. Moore Dry Dock, as previously stated has in essence sought to effect an accommodation or adjustment to the statutory provisions enumerated. When these rules are in effect, various situations may arise including among others: (I) the Union does nothing but picket in accord with Moore Dry Dock, the pickets arrive, and the employer or his employees or both see them? (2) The Union sends out a letter saying we are not picketing you, we are only picketing Picketing at the premises of a primary employer is traditionally recognized as primary action even though it is "necessarily designed to induce and encourage third persons to cease doing business with the picketed employer" 26a See and cf Servette, fn 25 supra. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the truck. Does this add anything in effect that the picketing of the truck would not do? May not the picketing of the truck by itself be more confusing. Does the letter have any impact other than clarification? (3) Next, the secondary employer sees the letter or the picket or both, and asks the union representative what can he do to prevent this situation and the union representative replies if you don't do business with Buck's you won't have a picket. Does that create a violation; is that any more than is obvious in the first place from the presence of the picket? (4) The Respondent Union without a picket asks the second employer not to do business with the struck employer. That according to Servette, supra, is legal. (5) There is a picket of a truck or the union representative says to the second employer there will be a picket of a truck and we are asking you not to do business with Buck's. As long as you do there will be a picket. Does this really involve anything more than Moore Dry Dock either with or without the letters. Isn't that what is involved in the first place? Doesn't the second employer know that the picket sign will be gone if he ceases doing business with or without a communication from the Union? What else can he assume or imply from this situation? Accordingly, if the Union, in essence, is making a statement which amounts to pressure or a threat when coupled with a picket to get the secondary employer to do something but which has no different impact than the picket alone without the statement should the result be different? It appears to me, that if Moore Dry Dock is a necessary accommodation of 8(b)(4) to Section 13 and the subsequently adopted (in 1959) proviso to 8(b)(4) then the other statements and conduct which occurred either in Estes or herein have added nothing substantial by way of impact that literally following Moore Dry Dock would not almost equally effect or Moore Dry Dock allow.27 What they may do is to furnish further evidence of the intent and motive which should be evident without more in those cases where there is a principal place at which the struck employer and his employees can picket and be picketed. The real question goes to the necessity of application of Moore Dry Dock rules to ambulatory picketing under certain conditions. Ambulatory picketing is not identical to and does not have to be viewed in the same manner as the other types of common situs picketing. Admittedly, there is the problem of reconciliation of the enumerated sections of 27 In Moore Dry Dock, supra, the Board at page 551 also said: We agree with the Trial Examiner that the Respondent's other activities, its "hot" letters and appeals for cooperation to Moore employees and other unions, invited action only at the situs of dispute. Therefore under the holding in the Pure Oil case, [fn. omitted] they msut be considered as primary action. 28 In my opinion if the current Moore Dry Dock standards are proper as the statute. Also as pointed out it is evident that picketing at the main place of business where there is a strike may often have secondary effects but also does have so-called primary ones that would directly affect either employees or strikers proceeding to work or those who might seek to be replacements. If this latter were not permitted, then the right to strike (and picket) would have little or no significant meaning and Section 8(b)(4) would be all encompassing except in a rare instance where the employer had no deliveries made at his place of business or no secondary employers came to it in any way, shape, or form if that can be envisioned. Unless the Concrete Company and Hemphill incidents materially affect such, the foregoing in my view reflects a situation involving a policy matter for the Board rather than for the Trial Examiner. I believe that serious issues and questions can be raised as to this situation as they were by both Trial Examiner Bott and Chairman McCulloch concerning the application of Moore Dry Dock to a given situation, and further that the Moore Dry Dock concepts may be in need of reevaluation.28 In the light of the were to make a decisive difference,29 I believe the facts are sufficiently similar that I am expected to follow the Board's Hemphill sufficiently similar that I am expected to follow the Board's ruling in Estes rather than to attempt to enunciate a doctrine. The Central Concrete incident was not alleged as a separate incident; 30 but offered as to motivation. I do not consider that in this latter connection it adds so materially to the other evidence of motivation, which I have discussed as to change the conclusion. This leaves the Hemphill Truck incident which, I believe, is technically a violation, but which standing alone I do not consider warrants an issuance of an order.31 Although as indicated, I have reservations based on the foregoing and the Moore Dry Dock decision as applied in the Estes case, I find and conclude that Respondent has not violated Section 8(b)(4)(ixii)(B) as alleged. Accordingly, I shall recommend that the complaint herein be dismissed. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions, it is hereby recommended that the complaint in the above matter be dismissed in its entirety. applied to ambulatory picketing then the Estes decision is probably sound. 29 1 have previously indicated that I do not consider that these incidents are sufficient to change the result. 30 In such case, it might form a predicate for a finding as a specific threat and therefore coercive without regard to picketing. 31 Cf. Plauche, 135 NLRB 250 at 255.