General Drivers, Local 563

GENERAL DRIVERS, LOCAL 563 General Drivers & Dairy Employees Union Local No. 563, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America ; International Union of Operating Engineers, Local No. 139, AFL-CIO; and Plumb- ers & Steamfitters Local No. 458 and Inland Trucking Co. and Wesley Meilahn, Copartners d/b/a Oshkosh Ready-Mix Co. Case 30-CC-97 October 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On October 6, 1969, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to certain portions of the Trial Examiner's proposed Order and Notice, together with a brief in support of these exceptions. Respondents filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the Charging Party filed an answering 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. 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 adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that Respondents, General Drivers & Dairy Employ- ees Union Local No. 563, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America; International Union of Operating Engineers, Local No. 139, AFL-CIO; and Plumbers & Steamfitters Local No. 458, their officers, 219 agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. I Member Brown concurs in the result TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: The issues in this case, which was tried before Trial Examiner Eugene F. Frey at Oshkosh and Appleton, Wisconsin, on various dates between February 19 and April 18, 1969, with all parties participating fully in the trial through counsel, are (1) whether the above-named Unions, acting in anoint venture in furtherance of a pending labor dispute with Fox Valley Material Suppliers Association (herein called the Association) and its members, including Courtney & Plummer, Inc. (herein called C & P), have picketed a building project of 2 other employers, Haldon Corp. and W.C. Mayo (herein called Haldon and Mayo, respectively), in order to cause employees of said employers to cease work for their respective employers and to cease handling materials delivered by C & P and Oshkosh Ready-Mix Co. (herein called Oshkosh) to said project, have threatened employees of Mayo and Haldon with loss of union membership, and have subjected them to physical attacks and threat of bodily harm, if they handled materials of C & P and Oshkosh at said project, thereby inducing and encouraging said employees to engage in a strike or refusal to handle materials of C & P and Oshkosh, and also threatening and coercing Haldon and Mayo, neutral employers engaged in commerce, with the object of forcing or requiring them and other persons engaged in commerce to cease using and handling products of, and cease doing business with, C & P, and/or forcing or requiring Oshkosh, a neutral employer, to cease doing business with other neutral employers on said project, all in order to force and require the latter to cease doing business with C & P, all in violation of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act), and (2) whether such conduct of Respondents through their agents against Oshkosh is permitted under the Act because (a) Oshkosh has allied itself with C & P and thus is not neutral with respect to strikes instituted by one or more of Respondents against the Association and its members, including C & P, and (b) by reason of a strike against Oshkosh by Teamsters Local 126, a sister local of Respondent Teamsters 563, that Respon- dent is privileged to engage in a primary dispute which thus involves employees of Oshkosh. These issues arose on a complaint issued January 31, 1969, by General Counsel of the Board through the Board's Regional Director for Region 30, and as amended at the hearing,' and answer of Respondents which questioned jurisdiction, denied the commission of any unfair labor practices, and raised certain separate defenses considered below. At close of the testimony the Trial Examiner reserved ' The complaint issued after Board investigation of charges filed by the Charging Party on September 16 and October 2, 1968, and January 23, 1969 186 NLRB No. 38 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision of motions of Respondents to dismiss the amended complaint on the merits; these motions are disposed of by the findings and conclusion in this Decision. All parties waived oral argument at close of the case, but written briefs filed by all have been carefully considered in preparation of this Decision. Upon the entire record in the case, and from my observation of the witnesses and their demeanor on the stand, I make the following: FINDINGS OF FACT that at all times material herein Jeffery Curtin, as business agent of Teamsters 563, Donald Shaw, as business agent of the Engineers, and Roland Choudoir, as business agent of the Plumbers, were agents of and acting on behalf of their respective local unions within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Events 1. THE EMPLOYERS AND THEIR BUSINESSES C & P is a Wisconsin corporation engaged at Neenah, Wisconsin, in the sale of sand, gravel, and aggregate for the building and construction industry and also as a general contractor in said industry. In the year 1968 C & P had gross sales in excess of $1 million, and also supplied goods and services valued in excess of $50,000 to enterprises which themselves are employers engaged in commerce within the meaning of the Act. Haldon is a Wisconsin corporation engaged at Oshkosh, Wisconsin, as a building. contractor in the building and construction industry. At all times material herein it has been general contractor under contract with Murphy Oil Corporation for construction of an automobile service station at the intersection of Highway 47 and Midway Road, in Menasha, Wisconsin (herein called the Midway Project). Mayo is in business in Appleton, Wisconsin, as a masonry contractor and at all times material herein was the masonry subcontractor to Haldon on the Midway Project. Oshkosh is engaged at Oshkosh, Wisconsin, in the sale and delivery of ready-mix concrete to the building and construction industry, and at all times material herein it was engaged in delivery of such products to Mayo at the Midway Project, at the same times that C & P was engaged in delivery of gravel and aggregate to said Project. I find that C & P, Oshkosh, Haldon, and Mayo are employers each engaged in commerce or in industries affecting commerce within the meaning of Section 2(6) and (7) of the Act.2 II. RESPONDENTS AS LABOR ORGANIZATIONS General Drivers & Dairy Employees Union, Local 563, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Teamsters 563), International Union of Operating Engineers, Local No. 139 (herein called the Engineers), and Plumbers & Steamfitters Local No. 458 (herein called the Plumbers)3 are labor organizations within the meaning of the Act. It is not disputed, and I find, C & P is one of seven employers located in the Fox Valley area,4 bargaining with Teamsters 563 and Engineers on behalf of its members. Teamsters 563 has its office in Appleton, Wisconsin, and claims jurisdiction in the northern portions of the counties of Winnebago, Calumet, and Washara, and the western part of Waupaca County, above a state or county road running east and west about halfway between Appleton and Oshkosh; this territory includes the cities of Appleton, Neenah, Menasha, Green Bay, and other municipalities on both sides of the valley of the Fox River which joins Green Bay on the north and Lake Winnebago on the south. Teamsters 563 has had collective-bargaining contracts covering all drivers of Association members since about 1960; prior thereto it had successive contracts with C & P covering the latter's drivers since about 1935. The last contract negotiated and consummated through the Association expired March 31, 1968. During negotiation of a new contract, in July 1968 a labor dispute arose between Teamsters 563 and Association members, including a strike by drivers of Association members against their employers, which dispute was continuing at time of the hearing herein. The Association has been negotiating contracts with Engineers for a unit of operating engineers employed by C & P, Badger Highway Co., Landwehr, Inc., and Calnin & Goss. The latest contract between Engineers and these employers expired March 31, 1968, and, when negotiations did not produce a new contract, Engineer members employed by these employers struck on July 30, 1968, and the strike was continuing at time of the hearing. Engineers claims jurisdiction over operating engineers employed anywhere in Wisconsin. Plumbers has its headquarters in Avalon, Wisconsin, near the Illinois border. While the record does not show definitely the extent of its claimed jurisdiction, its agent, Roland Choudoir, admitted that it did not claim jurisdic- tion in the general area of Oshkosh and Fond-du-Lac, and that during the events described herein it had no bargaining contracts with Oshkosh, members of the Association, Haldon, or Mayo, although plumbers may have been employed by Mayo at some point on the Midway Project. Oshkosh is not a member of the Association and does not employ any individuals represented by any of Respondents. However it has had successive collective-bargaining contracts with Teamsters 126, a sister local of Teamsters 2 While their answer pleads ignorance of the jurisdiction facts to which there were no objections. Respondents make no argument that any of the four employers named 4 The other employers are Badger Highway Co ., Schabo Ready Mix Co. above do not meet the jurisdictional requirements of the Board . of Appleton, Calnin & Goss, Landwehr, Inc., and Twin City Concrete 9 The names of the Unions are stated as amended in the complaint at Corporation (herein called Twin City). the outset of the hearing on motions of Charging Party and Respondents, GENERAL DRIVERS, LOCAL 563 563, with headquarters in Oshkosh and claiming jurisdic- tion in an area generally south of the jurisdiction of Teamsters 563, including the larger cities of Oshkosh, Fond-du-Lac, Ripon, Waupun, Green Lake, Randolph, and Beaver Dam. The most recent contract of Teamsters 126 with Oshkosh expired May 1, 1968, and after which Oshkosh and at least one other ready-mix operator in Oshkosh, Cook & Brown, locked out their driver-employees during negotiation of a new contract until July 17, 1968, at which time Teamsters 126 called a strike against Oshkosh which was still in progress at time of the hearing,5 the other employer involved having settled with Teamsters 126. Thus, at the time of the events related below, there was a primary dispute between Teamsters 563 and Engineers with Association members C & P and Twin City, and another such dispute between Teamsters 126 and Oshkosh. This is the background of the activities of Respondents discussed next. B. The Alleged Secondary Boycott Activity On December 9, 10, and 11, 1968, Mayo had two employees, Arlie Canfield and Richard Zimmer, engaged on the Midway Project in building molds and forms in preparation for the spreading of stone and aggregate foundations and pouring of ready-mix concrete thereon to form cement slabs, platforms, and walkways under his contract with Haldon. In connection with this work Canfield placed telephone orders on the morning of December 11 with C & P for delivery at the site of a load of aggregate, and with Oshkosh for delivery in the afternoon of ready-mix concrete These orders were placed in accordance with instructions of Mayo given previously. Shortly after noon, while the Mayo workers were eating lunch, a C & P driver drove up with a truckload of aggregate. While Canfield was directing placement of the truck for unloading, Business Agents Curtin, Choudoir, Shaw, and William Stillman6 were driving by in Curtin's car. Shaw saw the C & P truck and called Curtin's attention to it. Curtin stopped, parked the car some distance away on Midway Road, and the four got out and approached the Mayo men on the jobsite. Shaw asked Canfield if he was a union man. Canfield said he was. Shaw asked him if he knew C & P was on strike and that he was handling strike- bound material. Canfield replied that he did not know too much about that, as he was "paying into the union, was not full union yet." Canfield asked the agents "what about this load, shall I dump it?" Choudoir replied "If you dump it, there may be a picket line out here tomorrow." Shaw said that there "could be trouble" if he handled strike-bound material, and then asked Canfield "Are you going to send it back, or should we send it back?" Canfield then told the C 5 See General Teamsters, Warehouse and Dairy Employees, Local 126, et a! (Courtney & Plummer, Inc,) 175 NLRB No 86, where the Board found that the above organization , cited herein as Teamsters 126, is a labor organization within the meaning of the Act, and also detailed some of the facts and events involving that pending labor dispute 221 & P truckdriver to take the load back, and the driver drove the truck away. The C & P driver had no talk with the agents. During this conversation, Choudoir also told Zimmer that "this is strike-bound material," and Zimmer said "I am not going to use it." Shaw and Choudoir then asked Canfield if he was going to pour concrete. He replied he was. They asked where he was getting concrete, and he replied Oshkosh Ready-Mix. Curtin and Choudoir re- marked that that material was strike bound, too, that Oshkosh was involved in a labor dispute. Shaw and Curtin then suggested that Canfield go to the construction shanty on the site and cancel that order. Canfield did so, accompanied by Shaw, who stood at his side while he called Oshkosh to cancel the concrete delivery, and also called Mayo to report what had happened, saying he had canceled the gravel and concrete orders. Mayo told Canfield that he and Zimmer should remain on the job, that Mayo would have gravel and concrete sent back to the job, the two men should wait for it, and he (Mayo) would get there shortly. While Canfield and Shaw were in the shack, Curtin went back to his car and drove it onto the project site. After getting Mayo's instructions, Canfield went out and reported them to Zimmer, saying Mayo wanted both to wait until he got there. At the same time Shaw told Curtin that Canfield had canceled the Oshkosh concrete for that afternoon and was trying to get it from another source. Curtin told the other two agents to "watch what else happens while we are here." One of the agents told Canfield that if the gravel came back, and he handled it, "they" might make it hard for Canfield to get into the union, meaning the Bricklayers' and Masons' Union. Both men then went back to work building forms for concrete. About this time, the four union agents left the premises and drove away. Shortly after, another C & P gravel truck drove up, followed by a man in a pickup truck. The latter asked Zimmer and Canfield if they would use the gravel, and Canfield said they would not, that the driver should take it away. The truck and the pickup driver then drove off without dumping the gravel. About 1:30 p.m., a loaded Oshkosh ready-mix concrete truck, driven by one Wayne Koenig, drove onto the site, and Koenig asked Canfield where to dump the concrete. As they talked, Shaw and Curtin drove by in Curtin's car and, when Shaw saw the truck, he told Curtin to stop, so Curtin drove onto the site; Choudoir, who was following Curtin closely in his own car, also stopped, parked on the road, and joined the other agents. When they walked onto the site, Zimmer told them he and Canfield had returned the gravel. Canfield asked the agents if he could handle the concrete, and one of them told him they could make it hard for him to get into his union if he did. He said he would not handle it.7 Shaw approached Koenig, and asked him if he had a union card Koenig replied it was none of his business, and asked if Shaw was a union official. Shaw said that was none of Koenig's business. Koenig then had a rather heated argument with Shaw and Curtin, in which Shaw and Curtin called Koenig a "scab" driver taking work 6 Stillman was another business agent of the Engineers 7 According to Curtin, Choudoir came onto the site shortly after Curtin and Shaw had this discussion with the two workmen and when Choudoir got there, he said to Curtin "I see we have another problem," to which Curtin replied, "yes, but no one is going to handle the struck cement " 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from union men, and also described him with abusive and scatological terms. Koenig clearly expressed his dislike of unions and union agents, calling Shaw a "union racketeer" and disparaging unions as no good and "crooked" and opining that only a person of low mentality would work for a union. In the discussion several of the agents called Koenig a "smart aleck," commenting that "smart alecks" usually get hurt, have their heads bashed in. The argument went on for about 20 minutes. While Shaw was arguing with Koenig, Curtin walked back to his car and procured a picket sign stating "Fox Valley Construction Material Suppliers Association, Local 563, On Strike," walked back to a concrete platform on the site, and stood there with Choudoir, the sign under his arm, facing the Mayo workmen. Canfield and Zimmer were working on forms a few feet away and Canfield saw the sign and told Zimmer he thought one of the agents had a picket sign under his coat. Zimmer told Canfield he would not work on strike-bound, material; Canfield replied that he was trying to get into the Masons' union and was not sure of his exact status in it, so he figured he would not work on such material either. In the meantime, about 2 p.m. Mayo arrived at the site and approached Koenig, who was near the three agents, to ask what the trouble was. As he approached, Curtin partially hid the picket sign under his topcoat. Mayo asked Koenig what the trouble was and the latter told him no one on the site would handle the concrete. Mayo asked the three agents if they were union officials and they said, yes. Mayo then approached his workers, who were not working but talking to the three agents on the platform, and called them away for a private discussion. While he talked to them, Curtin put the sign back in his car and returned to the platform. Mayo asked his men what the problem was and they replied they could not use this concrete because it was "strike-bound" and they would be in serious trouble if they handled material from a strike-bound firm; Canfield said he thought he might be fined and denied membership in his union if he used it. Mayo asked why and Canfield replied the three men on the site said he could not use the concrete. Mayo then took the workers over to the agents standing on a concrete slab and asked Canfield to ask them why he could not use the concrete, what the problem was, and if he would get in trouble by using it. The agents did not reply. Canfield also told them they had said he would be in serious trouble if he used the concrete, but they did not answer to this. Mayo then asked the three agents why they were there and Choudoir replied that they represented Mayo's two workers. Mayo asked them if they realized they were on private property and requested them to leave. They asked who the owner was, Mayo told them, and Shaw said they could not care less, had a right to be there, and were not leaving. Shaw asked Mayo if he knew the truck had strike- bound concrete and what Mayo thought about it. Mayo did not reply but walked aside with his two workers and told them that to the best of his knowledge the agents' action was illegal, there was no basis for it as long as there was no picket line set up on the job, that they should not worry about it, as he had an injunction pending through the National Labor Relations Board covering the job, and that the unions could not strike or bother the workers on the job, and then suggested "let's go ahead and pour the concrete," as no one was telling them not to. Both men indicated they could not do so, for the reasons they stated before. Mayo then told them that, if they would not do it, he would pour it himself but there was other work for them to do on the job and they should do that, as he was paying them by the hour. Canfield started to prepare forms but Zimmer said he would leave the job. Mayo suggested Zimmer might drive off in his car for a time, until the agents left the job, but he refused, saying he would leave the job, as he did not want any more trouble. Mayo said that, if he left, Mayo would consider that he was quitting and he should take his tools with him. Zimmer replied that he did not want to quit but could not finish strike-bound concrete. Mayo then went into the construction shack, while Zimmer left the jobsite shortly. Canfield continued to work on forms. At some point during these events, but after his argument with Shaw, Koenig returned to his truck to report on the two- way radio what had occurred and was directed by some Oshkosh official to remain on the project to see if Mayo would pour the concrete. In the shack, Mayo called Donald Wolfe, an officer of Haldon, explained the situation, and asked for help because his own men would not pour concrete. Wolfe sent his employee, Charles Beyer, from another project to help Mayo. When Beyer arrived at the Midway Project about 15 minutes later, he saw the Oshkosh truck standing there and walked onto the concrete platform where Shaw and Choudoir were standing, told them he had been sent to help pour the concrete, and asked if they were "from the union." 8 Shaw said they were and asked Beyer if he was going to work on "strike-bound" material on this job. Another agent said they were having trouble with Oshkosh and also mentioned Haldon. Beyer told them that, if there were any "union difficulties" on the job, he did not care to help in any of the work. Curtin asked if he was a union man and Beyer said he was. The agents replied that they would "appreciate it very much" if he would not help to pour the concrete. Early in this conversation Koenig walked up to the group to hear what was said. Shaw told Koenig to "get out of here, let us alone, what we have to say is none of your business, you are not wanted." Choudoir also asked Koenig to "step aside." Koenig remained near the group, so the agents took Beyer out to the center of Midway Road to talk. Koenig followed them, and Shaw repeated his order to him to "get out of here," saying he might get hurt if he followed them. Curtin also asked Koenig to "stay out of our conversation." Koenig did not move away, so Curtin tried to block him with his body from getting near to the group. Koenig sidestepped him and walked toward the group and then Shaw became angry and physically pushed Koenig with his arms, moving him back into the traffic lane on the opposite side of the road. About this time, Mayo approached the group of agents and Beyer and told the latter that the unions could take no 8 Beyer suspected there was trouble with the Teamsters, when he saw had picketed the site and prevented pouring of concrete from an Oshkosh the three agents and the Oshkosh truck standing there, because he had truck. worked on a jobsite in Neenah 4-5 months before where Teamsters 563 GENERAL DRIVERS , LOCAL 563 legal action against him if he poured the concrete. Beyer replied that, if there was any "union trouble" on the job, he would not help pour the concrete. Mayo then took him to the construction shack, asking him to call his office. Beyer told Wolfe on the telephone that he would not pour the concrete, because a union business agent had told him not to handle it, that there could be some "trouble." Wolfe told him the unions could not penalize him if he helped Mayo with the concrete but Beyer refused to help, saying he thought that, if he poured the concrete, the unions might put up a picket line and he had worked in a situation like that before and did not like to work behind a picket line. Wolfe then told him to go to another Haldon project and Beyer drove away shortly, having been on the site only 15-20 minutes. Wolfe immediately called Duane Sweet, sales manager of C & P, told him about Beyer's call, and said that a gravel truck had been sent back to its plant, two cement finishers had left the job, and Mayo had called for help. He asked Sweet to drive to the project, check on the "trouble," and let him know, as he (Wolfe) was busy in the Oshkosh office and could not get to the project site quickly. Sweet said he would go. When Beyer left the site, Mayo asked Canfield again if he would help pour the concrete. Canfield replied that he did not want to get into any trouble, so Mayo told him to leave his tools for Mayo to use and to go to another project Canfield left and Mayo asked Koenig to help him pour the concrete. Koenig agreed and the two began to pour the concrete, with Koenig operating the truck and pouring chutes and Mayo spreading and smoothing off the concrete, while the three union agents watched from a nearby platform. While Mayo and Koenig were handling the concrete, Sweet and another employee of C & P drove up and offered to help Mayo, and he had them help him in spreading the concrete, while Koenig operated the truck levers and added water to the mix as needed, and Mayo did the finishing. While they worked for about 2 hours, the three agents stood on a nearby platform and watched. During the operation either Mayo or Sweet called the nearby C & P plant for another load of stone, which was delivered and dumped about 4 p.m. The agents left the site about that time. I find the events of December 11 outlined above from credible and mutually corroborative testimony of Mayo, Canfield, Zimmer, Koenig, Beyer, and Sweet, which is corroborated in substantial part by admissions of Shaw, Curtin, and Choudoir. I do not credit other testimony of the three union agents to the effect that they limited their discussions on the site to mere reminders to the Mayo workers that strike-bound material was at or coming to the site and to mere expressions of appreciation upon alleged statements volunteered by the Mayo men that they would not handle strike-bound material, for this is incredible in face of the admissions of the agents that they deviated from trips to a conference by stopping and entering the site twice deliberately, on seeing the C & P and Oshkosh trucks, in order to try to assist Local 126 in its dispute with Oshkosh by doing whatever they could to prevent the use of strike- bound materials on the project and thereby strike at Oshkosh and C & P in their business, that they took pains to advise both the Mayo employees that the stone and 223 concrete being delivered was strike-bound material, after learning that both workers were union men, and that they remained on the site for more than 2 hours, part of that time with a picket sign openly displayed indicating the project was "on strike." In addition, I am satisfied that both workers refused to handle this material on advice and threats of the union agents, as found above, rather than voluntarily, because both admitted they knew about both the Teamsters 126-Oshkosh and Teamsters 563-C & P disputes the day before, when they had raised the question with each other and with Mayo whether they should handle materials of those suppliers because of the possibility of union trouble, and had accepted Mayo's assurances that the strikes were settled and that they had a legal right to use it and would be protected by an injunction procured by the Board which would prevent the unions from causing any trouble based on their dispute with Oshkosh, and both had on the basis of such assurances handled products from both firms on the 10th and Canfield ordered products from both early on the 11th. It is clear from this testimony and a specific admission by Canfield that they would have continued to handle products from both on the 11th but for the appearance, actions, and threats of the union agents that day, which were effective enough to override Mayo's repeated assurances of legal protection if they used the material, by inducing both workers to refuse to touch the material while the union agents were present. This conclusion is also strengthened by the admission of Zimmer, a long-time union member, that, when he talked to his brother, a business agent of his own union, about it that night, the latter considered the explanation of Mayo plausible and reasonable, advising Zimmer to go back to work until they determined whether Mayo had the protective injunction he had mentioned to them both on the 10th and 11th. Regarding the use of the picket sign, I do not credit Curtin's story that he at one point used a portion of it, containing only the words "On Strike," as a memo pad to record details about the Oshkosh truck and the events of the afternoon for "future reference" and did not display a whole picket sign as such at the site; he could give no explanation why he did not first ask the other union agents for an envelope or scrap of paper on which to make his notes, before he went to his car for the sign; and his explanation that he made notes in these situations for his own vague "future reference," but not as a practice of his union or for purpose of reports to his union's officials, is weak and lacks credence because he does not explain what "future reference" the notes would serve. Further, neither Shaw nor Choudoir, who had been business agents far longer than Curtin (who had been a Teamsters agent only since June 1968), bothered to keep notes on the Midway Road incident; in fact Shaw says he never tried to keep such records on numerous similar incidents he had observed during the dispute between Engineers and the Association, because if he did they would have filled a book the size of a Sears Roebuck catalogue; in addition, while Curtin tries to distinguish his alleged note-taking about the Oshkosh truck from his failure to make such notes on the C & P truck earlier that day by saying he knew all the C & P trucks since the Association already had a dispute with Teamsters 533, he admits he could not know whether 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oshkosh was in fact delivering material that afternoon, or another contractor not involved in a labor dispute, as he well knew the practice of RM9 concrete companies of renting trucks from each other. As it is clear from the record that on December 11, 1968, neither Mayo nor Haldon employed members of Respon- dents or had any dispute with any of Respondents, and that no employees of either C & P or Oshkosh, who were members of either Teamsters 563 or 126, were actually working on or picketing the Midway Project, and Choudoir and Shaw admit no members of their unions were working there that day, the facts found above clearly demonstrate, in light of the admitted purpose of the activities of the union agents, that both Haldon and Mayo were neutral, secondary employers with respect to the Teamsters 563- Association dispute and Teamsters 126-Oshkosh dispute, and that the picketing with coercive remarks and other activities of Respondents jointly through their business agents at said project was an attempt to cause employees of Haldon, Mayo, and Oshkosh, and actually caused employ- ees of Haldon and Mayo, to cease work for their respective employers and to engage in a refusal in the course of their employment to use, process, transport, or otherwise handle materials and to perform services, and was an attempt to threaten and coerce Mayo, Haldon, and Oshkosh and other persons engaged in commerce, all with an object of forcing and requiring Mayo, Haldon, and other persons engaged in commerce to cease using, handling, or otherwise dealing in products of, and to cease doing business with, C & P or Oshkosh. As a prima facie consideration, such facts and conduct with these objectives establish a violation of Section 8(b)(4)(i) and (ii)(B) of the Act.io C. The Affirmative Defenses In their arguments, Respondents do not seriously question the nature and objective of the conduct of their agents, but in effect plead a confession and avoidance, arguing that for various reasons their conduct amounts to permissible primary pressure against C & P and Oshkosh, as protected by the proviso to Section 8(b)(4). They present four main contentions: (1) Their agents' remarks and inducements to Haldon and Mayo employees were primary activity because they were designed to induce them to refrain from the tasks of unloading and placing strike- bound material coming from primary employers, which were "related work" that contributed to and was connected directly with the work of the primary employers which Respondents were legally trying to halt; (2) the agents' inducements were lawfully directed to the inducement of other workers to cease working at a roving primary situs of pending disputes, i.e., the loaded trucks; (3) Oshkosh is not a neutral employer entitled to protection from pressures which are primary as to it, so that the arguments of the agents with Koenig, as well as the altercation including 9 RM will be used hereafter as the abbreviation for "ready-mix." 10 1 find no merit in the corollary claim of Respondents that their actions were not picketing, but only verbal appeals intended to induce the Mayo and Haldon employees not to cross a "primary picket line" at the primary situs, i.e., the loaded trucks, for the mere claim admits they had established a "picket line" in the ordinary sense; and the deliberate invasion of private property by four business agents, with three remaining bodily contact, were designed to induce him to cease work for Oshkosh, and were thus legitimate actions which "disinterested" unions like Respondents could take to induce employees of Oshkosh to cease working as strikebreakers, under the Board ruling in United Association of Journeymen, Local 106 (Columbia-Southern Chemical Corporation), 110 NLRB 206, and supporting decisions; and (4) Oshkosh is allied with C & P and Twin City so as to make it a primary employer along with the latter concerns in their primary dispute of Teamsters 563. These points will be considered in order. At the outset I find no merit in Respondent's argument that they were not engaged in a joint venture on December I 1 at the Midway Project, for the admissions of their three agents as to their common purpose of "assistance" to two Teamster locals engaged in primary disputes with Oshkosh and C & P, as well as their joint action in twice deliberately stopping at, picketing, and leaving the jobsite together, and their similar and simultaneous threats and other forms of inducement in the presence of each other to Haldon and Mayo employees, all make it clear beyond question that they were deliberately acting in concert and combination in pursuit of a common purpose and objective. In addition, this "assistance" to another union operating in the same general area was merely the latest instance of a pattern of joint action and coordination of efforts vis-a-vis employers running back at least to 1965. I must take judicial notice of the joint actions of both Teamsters 563 and 126 found by the Board in the Courtney & Plummer, Inc., case, supra, and the record here also shows that Teamsters 563, through agent Schlieve, assisted Teamsters 126 in its 1965 negotia- tions with Oshkosh, in that he acted as "mediator" in carrying positions and arguments between that union's officials and Meilahn and his attorney, Gill, that in this fashion and also through periodic reports by all locals in the State to each other at quarterly meetings of Teamsters Joint Council No. 39, he was kept abreast of all contract negotiations and problems of Teamsters 126 with employ- ers in its area including the progress of the 1968 negotiations, that the 1968 contract of Teamsters 126 with Oshkosh had to be "cleared" through Joint Council No. 39, that Teamsters 563 has a constant and "vested" interest in conditions obtaining in the jurisdiction of Teamsters 126, and that it is standing policy of Teamsters 563 (as well as that of the Engineers and Plumbers) to assist "in any way we can" another union in a strike against an employer, when that employer does business in the jurisdiction of any of Respondents. In addition, Shaw of the Engineers admitted that during the 1968 negotiations of Engineers and Teamsters 563 with the Association, he and Schlieve by cross-invitation attended the respective negotiations of their locals, at least to keep abreast of the terms and progress of the negotiations of each. From all these facts I am satisfied and find that if any violation of the Act to make threats to Mayo and Haldon workers to induce them not to handle the struck material, and use of a picket sign during their 2-hour occupation of a portion of the site for this purpose, all done admittedly in concerted action, are cogent indicia of the traditional picketing indulged in for years by labor organizations. Whether the Midway site was a primary situs of a dispute with C & P or Oshkosh will be discussed later. GENERAL DRIVERS, LOCAL 563 225 appeared in Respondents' conduct on December 11, they arejointly and severally liable therefor. 1. The claim of primary pressure Respondents argue that their conduct at the Midway Project was legitimate primary pressure in aid of the pending primary strikes against C & P and Oshkosh, which comes within the proviso to Section 8(b)(4)^ protecting the traditional right of primary strikes and picketing, because that right includes the right to request the assistance of other workers to support it, and here the pressures "were addressed to primary conduct." Respondents rely on Supreme Court decisions which hold: (a) In lawful primary picketing of the plant of a primary employer, the striking union may make verbal appeals to a single employee of a customer trying to pick up strike- bound materials from the plant, even if the object of such action was to attempt to cause the customer to cease doing business with the struck employer, provided the union's conduct is not directed to inducing concerted conduct by more than one employee of the neutral employer, and all inducements made are limited to the area of picketing at the site of the primary dispute, which is directed at the employees of the struck employer in the traditional manner. (International Rice Milling Co., Inc., et al. v. N.L.R.B., 341 U.S. 665) The implication of the Supreme Court decision limited to inducement of a single neutral employee was that, if there had been action designed to cause a concerted refusal of delivery by the neutral employees, the conduct would have violated Section 8(b)(4) However, these facts make the case inapposite here, where Teamsters 563 was extending its strike activity far beyond the traditional situs, i.e., the plants of C & P at Neenah and elsewhere, or of Oshkosh RM at Oshkosh, to premises where neither struck employer was doing the normal work conducted at their struck plants, but were merely delivering materials as and when ordered by Mayo, the secondary employer at the Midway site. (b) Where a primary union having a dispute with a primary manufacturer pickets its plant at which outside contractors are performing construction, maintenance, and repair work which is necessary to normal operation of the plant, the union may include in its picketing and other appeals a separate gate maintained for exclusive use of such outside contractors, and thus appeal to their employees to support the strike, without violating Section 8(b)(4), because the type of work done by the contractors aids the primary employer's everyday operation, hence this amounts to "related work" which destroys their neutrality vis-a-vis the primary dispute. See Local 761, IUE [General Electric Co.] v. N.L.R.B., 366 U.S. 667. This decision was premised upon the fact that the "related work" done by the contractors was such that, but for its performance, the primary employer would not have been able to continue operations normally at the plant, hence it was not the usual "common situs" situation which required application of the principles of Moore Dry Dock Company, 92 NLRB 547, placing certain limitations upon picketing in such situa- tions. On the facts this decision cannot control here, because the record shows, as noted hereafter, that neither C & P nor Oshkosh was performing work at the Midway site in the normal sense which made it essential to the operations of either Haldon or Mayo at the site. (c) As an extension of the "related work" principle, a primary union in a primary dispute with a primary manufacturer whose plant is served with transportation by a railroad siding owned by a railroad and adjacent to the plant, may include that siding, railroad equipment operating on it, and the railroad employees operating the same in its picketing activities in an attempt to induce them to stop furnishing transportation to the manufacturer, without violation of Section 8(b)(4). See United Steelwork- ers of America [Carrier Corp.] v. N.L.R.B, 373 U.S. 492. The Supreme Court here reasoned that the primary strike which is protected by the proviso to Section 8(b)(4) includes primary picketing which has traditionally been "aimed at all those approaching the situs whose mission is selling, delivering or otherwise contributing to the operations which the strike is endeavoring to halt," and that in light of this traditional goal of primary pressure Congress intended by the proviso to preserve the right to picket during a strike any gate reserved for employees of neutral deliverymen furnishing day-to-day service essential to the primary employer's regular operations. The Court also noted that none of the union's strike activities was designed to interfere with any of the railroad's deliveries to other adjacent plants served by the same railway siding. Respondents argue that the above rulings, particularly the last two dealing with "related work," apply here, because Respondents' activities were directed to Mayo and Haldon employees to induce them to refrain from unloading and using strike-bound material which "contributed to and is directly connected with the operations which the strike is endeavoring to halt," i.e., the basic operations of both Oshkosh and C & P. It is true, of course, that the buying and use of such material benefited both primary employers, and was a main object of their operations, and Respondents contend that the activity permitted by the International Rice Milling Co. case to prevent buyers of struck products from picking them up at the situs of the primary dispute applies with equal force to the reverse situation existing here, where the inducements are directed to employees of otherwise neutral customers for strike-bound C & P and Oshkosh products at locations other than the situs of the primary dispute, since their acceptance and use of such products is essential to the operations of the primary employers. Respondents also argue, as they must, that this right of inducement exists at common sites situations as well as at plant premises housing the primary dispute. They maintain that a holding otherwise would seriously limit the right of primary strike and pressure protected by the Act because the record shows that normally over 90 percent of RM concrete is delivered to construction sites by the RM manufacturer. The first weakness of this argument is that the record here does not support a finding that either C & P or Oshkosh were performing their normal operations at the Midway site, so as to make it their "plant" or "main place of business." Respondents cite no cases involving the same facts as here or clearly compelling this conclusion. Some cases cited by them recognize that suppliers of materials to a picketed employer at his regular place of business may 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lawfully be subjected to the primary pressure being exerted on him at that point, which is the traditional point of such pressure, and it is clear that the Board and courts, recognizing the protection afforded to the right of primary picketing in Section 8(b)(4), have tended to give wide latitude to picketing and related conduct confined to the sole or main premises of the primary employer.1' However, while both C & P and Oshkosh had delivered materials previously at the Midway site, and C & P had been a supplier of stone to Haldon at other projects in the past, there is no proof that either supplier had an exclusive long- term or fixed contract or arrangement to supply materials to either Haldon or Mayo in all their work, such as to make delivery of materials by them to either an essential aspect of the contractor's work, or to make each construction site of each contractor in fact or in law a main place of business of the suppliers. To the contrary, the record shows that Haldon had turned down the C & P bid for delivery of concrete to the Midway site in favor of Oshkosh, but it does not show that Oshkosh had prior dealings with Haldon or Mayo; and, when the union agents made their first threats to Mayo employees, inducing them to refuse the C & P stone and causing Canfield to cancel the C & P delivery, they expected him to make efforts to get the stone elsewhere, as Shaw notified his associates engaged in the picketing; it is also inferable that they knew, as appears in part from testimony of agent Schlieve, that there were other suppliers of stone and concrete available in the area who apparently had no disputes at the time with Respondents or Teamsters 126. There is also credible evidence that Oshkosh at least supplied concrete in the Neenah area only occasionally, as most of its business arises in the Oshkosh area and to the south of it. Hence, the record does not support a finding that either Haldon or Mayo was a sole source of business essential to the continued operation of either C & P or Oshkosh, or that the latter suppliers were a sole source of materials without which either contractor could not operate. I must therefore conclude and find that mere delivery of materials to the Midway site by C & P or Oshkosh did not make that site the location of the primary dispute of either supplier with their respective Teamster locals. Respondents also argue that, in unloading, placing, and finishing the stone and RM concrete on the site, the Mayo workmen were performing work sufficiently "related" to the normal operations of the struck suppliers, which included the truck of each as a roving situs of the primary dispute, so as to make lawful Respondents' appeals to the Mayo workmen while the trucks were on the site. Respondents cite two cases to support the proposition,12 in both cases the Board held that, for purposes of determining the legality of certain contract clauses under Section 8(e) of the Act, the mixing and delivery (including pouring) of ready-mix concrete at construction sites is not construction "See Local 761, IUE v. N. L.R. B., supra; United Steelworkers of America v. N.L. R. B., supra; and Building and Constructions Trades Council, etc. (Markwell and Hartz, Inc.), 155 NLRB 319, 324, and cases cited in footnote 12. 12 Teamsters, Local 294 (Island Dock Lumber, Inc.) 145 NLRB 484, and Drivers, Salesmen, Warehousemen, Local 695, Teamsters (Madison Employers' Council), 152 NLRB 557. 13 Meilahn testified credibly that, when RM concrete reaches a contractor's project, it is considered sold to him, even if he decides not to work on the site, but merely the delivery of a material or product. The Board's analysis of this operation in those cases makes it clear that the exact placement of the concrete on delivery is controlled only by employees of the concrete contractor who have prepared the forms or other location for it, and is a necessary part of his subcontract on the job, but no part of the act of delivery by the supplier; if requested to do so by the concrete contractor, for whatever outlandish reason, the supplier's driver would dump the concrete on the ground, and that would still be final delivery although perhaps useless in performance of the contractor's work.13 It follows from these considerations, as well as the working relationship facts noted above, that, when the Mayo employees told the C & P and Oshkosh drivers where to deposit their materials, and then finished off the concrete after the deposit and pour, they were doing work related in fact only to Mayo's contract with Haldon, and not "related" to the main business of C & P and Oshkosh. Hence, the cases which find that otherwise neutral employers may be enmeshed in a primary dispute because they are doing work "related" to that of the primary contractor do not apply here. Even if I accept the argument that both primary employers were conducting their normal operations at the Midway site, so as to make it a common situs, either during the whole day of December 11, or while their trucks were there, then it is clear that Respondents' picketing of the primary employers there would be lawful only if it conformed to the four standards set up by the Moore Dry Dock case for common situs picketing, viz: (1) the picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises; (2) at the time of the picketing the primary employer is engaged in its normal business at the site; (3) the picketing is limited to places reasonably close to the location of the situs; and (4) the picketing discloses clearly that the dispute is with the primary employer.14 Since the record clearly shows that Respondents' picketing and inducements of the Mayo and Haldon employees occurred at times when no C & P or Oshkosh truck or employee was on the premises, and neither primary employer was engaged in any activity there, conditions (1) and (2) are not satisfied. The extension of their activity to other times, without exerting any direct pressure on either the C & P or Oshkosh drivers,15 compels the inference that Respondents' object was to halt the use of strike-bound material by Mayo and Haldon employees and to induce those secondary employers to cease doing business with C & P and Oshkosh. Since there is no proof that striking employees of Oshkosh or C & P appeared at the Midway site to conduct traditional primary picketing in support of the pending disputes against either C & P or Oshkosh, or that Teamsters 126 engaged in any such conduct vis-a-vis Oshkosh, it follows that Respondents' conduct in the absence of a use it, and he must pay for it. 14 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547, 549; Building and Construction Trades Council of New Orleans AFL-CIO (Markwell and Hartz, Inc.), 155 NLRB 319, 323, 326, 327. 15 The salient facts are that the agents brought personal pressure on the Mayo workmen, rather than on the C & P driver when he arrived at the site, to have the C & P material rejected, and they exerted the same pressure on the Mayo employees, to reject the Oshkosh concrete, long before it arrived at the project. GENERAL DRIVERS, LOCAL 563 227 lawful primary picket line or other facts which made that site either a main or ambulatory situs of a primary dispute amounted to picketing by secondary unions at the worksite of neutral employers to induce employees of those employers to refuse to perform services for their employers for an objective which was forbidden by Section 8(b)(4)(B), and violated Section 8(b)(4)(i) and (ii)(B) of the Act; and since this activity, particularly by Teamsters 563, did not comply with the Moore Dry Dock requirements, to the extent that the site may have been an ambulatory one temporarily situated at a neutral's premises, at least in its application by Teamsters 563 vis-a-vis C & P, it further violated the same sections of the Act.16 The above facts and considerations dispose of Respondents' second contention noted above. 2. Respondents' actions toward Oshkosh and its drivers Respondents' third defense is that Oshkosh is not a neutral vis-a-vis Teamsters 563, because of its primary dispute with Teamsters 126, hence Oshkosh and its driver, Koenig, could lawfully be subjected to primary pressure by a sister local of that union and its two "disinterested" allies anywhere they could find them, relying on United Association of Journeymen, Local 106 (Columbia-Southern Chemical Corporation), 110 NLRB 206. In that case the Board held in substance that a secondary union may induce primary employees represented by it to respect a primary picket line posted at their employer's place of business on a common situs, even though it has been posted by another union, on the theory that "Congress was not concerned to protect primary employers against pressures by disinterest- ed unions, but rather to protect disinterested employers against direct pressures by any union." This holding, cited with approval by the U.S. Supreme Court in Houston Insulation Contractors Association v. N L.R.B., 386 U.S. 664, 668, merely applies the basic principle that appeals to employees by unions are a legitimate implementation of permissible primary picket line activity if they are intended to induce action only at the primary situs, whether made by primary or secondary unions. The same principle was extended by the Board in Chauffeurs, Teamsters and Helpers "General" Local No. 200 (Milwaukee Plywood Company), 126 NLRB 650, to make lawful appeals by a secondary union to secondary employees represented by it, to respect a primary picket line posted by a primary union at a fixed primary situs. But neither case allows a secondary union to induce secondary employees to refuse to deal with their employers or refuse to handle strike-bound goods at an ambulatory primary situs, temporarily located at their employers' premises, in the absence of a lawful primary picket line there. To the contrary, the Board has held that such appeals by a secondary union to secondary employees it represents, not to load trucks of the primary employer, violated Section 8(b)(4)(B), in the absence of a lawful primary picket line around the trucks,17 or some current notice by the primary union to both secondary employees i6 See Grain Elevator, Flour and Feed Mill Workers, Local 418 (Continental Grain Company) 155 NLRB 402, which is stronger on the facts than this case, for the secondary union in that case made its appeals to employees of a secondary employer whom it represented Here, of course, and their employers which make it clear that the labor dispute involved there is between the primary union and the primary employer, and that the secondary employers and their employees are not involved; lacking such notice the dispute takes on the appearance and character of a dispute between the secondary union and the neutral employers over the dealings of the neutrals with the primary employer, and thus brings the action of the secondary unions within the prohibitions of Section 8(b)(4)(B). Under this ruling, Respondents acted illegally because Teamsters 126 had never set up a picket line at the Midway site or otherwise which would indicate to the Mayo or Haldon employees that its dispute with Oshkosh had been transferred there when its trucks delivered at the site.18 Nor is this lack cured by the fact that the secondary employees here already knew about the Teamsters 126-Oshkosh dispute, as well as the Teamsters 563-C & P dispute, when Respondents' main agents arrived on the scene, or that the agents reminded them of these disputes by calling both C & P and Oshkosh materials "strike-bound"; as found above, it is clear the secondary employees would have continued to work, but for the appearance and action of Respondents. Giving the facts the implications most favorable to Respondents, the most that the Columbia-Southern case would permit was appeals directly to the Oshkosh driver when he was on the Midway site designed to make him stop working for Oshkosh, the primary employer, but this would be lawful only if Respondents had complied with the Moore Dry Dock limitations to make it clear to all neutral employees that their activity was only to assist Teamsters 126 in its dispute with Oshkosh. Their pressure upon Koenig directly need not be appraised by itself, however, because there is no allegation that Respondents violated Section 8(b)(1)(A) in this respect. The salient fact is that the coercion exerted on him was in the presence of a Haldon employee, and was effective to cause the latter to refuse to do work for either Haldon or Mayo, hence Respondents' actions clearly induced him to cease handling materials for both secondary employers, which was illegal in the absence of picketing by the primary union, Teamsters 126. In their brief Respondents in effect concede that the ruling in the Continental Grain Co. case is controlling on this aspect of their conduct. I conclude on this point that Respondents' entire conduct at the site was not rendered legal by the fact that at one point they exerted pressure in aid of Teamsters 126 upon the employee of Oshkosh, which in itself may have been legal under extensions of some Board decisions. 3. The "allied employer" issue Respondents argue that Oshkosh has so allied itself with C & P and Twin City, primary employers in dispute with Teamsters 563, that in law it has voluntarily become part of that dispute, so that said Respondent with its own allies, Engineers and Plumbers, can lawfully take action designed to prevent use by others of strike-bound materials coming from Oshkosh. Since the hearing closed herein, the Board none of Respondents represented employees of Haldon or Mayo who were subjected to pressure i7 Local 584, etc et a! (Fairway Farms, Inc) 141 NLRB 638 18 See Continental Grain Company, supra, 410, 411. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued its Decision in a case involving both Teamsters 563 and 126,19 finding that they had violated the same sections of the Act involved here in actions against C & P and Twin City, and rejecting the same "allied employer" contention as to the relationship between C & P and Oshkosh. I think that decision is res judicata on that issue so as to bind Teamsters 563, but not the Engineers and Plumbers, so that the findings and decision herein on that issue must rest on the record made here by the latter Respondents. The record here shows that during 1968 and up to date the majority stock in C & P and Twin City has been held by second-generation members of the Courtney and Plummer families.20 Prior to 1945 both enterprises had been a single partnership dealing in crushed stone, gravel, and ready-mix concrete, but thereafter C & P, as a partnership and then a corporation, processed and sold crushed stone and gravel, while Twin City sold ready-mix concrete, securing about 90 percent of its crushed stone from C & P. Charles M. Plummer, as president, operates C & P on a day-to-day basis, and David Courtney, Jr., as president, runs Twin City in like manner. Other second-generation Courtneys and Plummers occupy the secretary and treasurer jobs in both. Both corporations have the same office in Neenah, Wisconsin, but maintain separate corporate books and records. Part of the operations of both are also at the Neenah office site where C & P has a garage and crushes and washes aggregate,21 and Twin City runs a fixed RM plant. Twin City has other RM plants in Menasha, Brillion, and Appleton. Other second-generation Courtneys and Plummers have various managerial jobs in the corporations and the various plants of Twin City. Inland is a partnership formed in 1960 by the second- generation Courtneys and Plummers initially for the purpose of buying dump trucks and portable crushing plants and leasing them to C & P; a separate concern for this purpose had certain tax and income advantages for both families. C & P is still its only customer. The five Courtney brothers together have a 1 /3 interest in it, David Courtney, Jr., and his sister together own about 1/3, and Mr. and Mrs. Williams own the remaining 1/3, being the same Courtneys and Plummers that control C & P and Twin City. Inland has its office at Oshkosh, Wisconsin, in the home of Charles M. Plummer, who runs it actively for the benefit of both families; it has no other employees or administrative personnel. Meilahn began close business relations with the Court- neys and Plummers in early 1964 when he approached the Inland partners for financing with which to buy out his partners in Green Lake Ready-Mix Co., of Green Lake, Wisconsin, a large-size RM distributor operating plants in several counties west of Lake Winnebago. He dealt mainly with David Courtney, Jr., as the agent of the Inland partners on this venture which resulted in the formation of 19 General Teamsters, Warehouse and Dairy Employees, Local 126, et a! (Courtney & Plummer, Inc.), 175 NLRB No. 86. 20 The first generation consists of David Courtney, Sr., Walter Courtney, and Earl M. Plummer, who together created partnerships years ago which preceded the present corporations . These elders have retired from active participation in the corporations and turned over their majority interests to the second generation, so that in 1968 and up to date the second generation has been actively running both concerns, as majority stockholders and officers. These persons are: David Courtney, Jr., a 50-50 partnership between the nine Inland partners on one side, and Meilahn on the other, which took over Green Lake RM and its plants. As one of those plants was in Oshkosh, the new Green Lake partners desired to run this as a separate enterprise so in April 1964 they formed Oshkosh for this purpose, holding the same 50-50 interest in it as in Green Lake. Since its formation, Meilahn has been the actual manager of Oshkosh, supervising from its Oshkosh office its daily operations, all personnel, finances, and labor policies. He has in like manner continued to operate Green Lake RM. In managing both he is directly responsible to the Courtney and Plummer interests, as his copartner. In the operation of Oshkosh he is the only partner who receives under the partnership agreement a fixed salary as "operating partner." In handling its finances, he signs all checks other than payroll with one of three named Courtney and Plummer relatives; this arrangement was designed to act as a check for their benefit on large purchases of $10,000 or more by Meilahn, but in actual practice, he makes the decision on all purchases, large or small, and prepares checks for routine signature by David Courtney, Jr.; on large expenditures, he usually informs the latter about each beforehand as a courtesy gesture, but the latter has apparently never exercised any veto on such purchases. Recently, the Inland partners have suggested that the double signature requirement be abandoned, which would give Meilahn, as the "operating partner," sole discretion on all expenditures, subject only to his periodic accounting to the C & P interests through monthly profit and loss and balance sheets. Thus, in both Oshkosh and Green Lake, Meilahn runs the whole operation in all aspects, merely rendering periodic account- ing to the C & P or Inland interests as "silent" investing partners. In 1964, 1965, and 1967, Meilahn and the Inland partners became partners in three other RM concerns, i.e., Randolph RM of Randolph, Waupun RM of Waupun, and Beaver RM at Juneau, after their respective owners approached the Inland partners with offers to sell out; after investigation of each concern and the offer by Meilahn and consultation between him and David Courtney, Jr., as the agent for the Inland partners, Meilahn and the Inland partners took 50-50 interests in Randolph and Waupun, but Inland took a 75-percent interest in Beaver. In these acquisitions, Meilahn usually handled the negotiations with the sellers, while Courtney handled the financing. In each instance, basically the same type of partnership agreement was made between the Inland partners and Meilahn as in the case of Oshkosh. I find from the above facts that C & P and Twin City are a single family enterprise, both by reason of their common origin and present common ownership and operation by the same second-generation members of the C & P families. Gwendolyn Jensen (sister of David, Jr.), both children of David, Sr., Pearl Williams (daughter of Walter Courtney) and her husband, Harvey Williams, and five sons of Earl M. Plummer, i.e., Charles M., William, James, Thomas, and Robert. These persons, with the wives of some of the first- and second-generation members of each family, comprise the directors, and some of the second-generation members comprise the officers, of both corporations. 21 C & P gets its rough gravel from 30-40 pits in Winnebago and three adjacent counties, and at times from other locations in Wisconsin. GENERAL DRIVERS, LOCAL 563 I also find that C & P and Twin City on the one hand, and Oshkosh on the other, are linked by the same common ownership. General Counsel and the Charging Party do not seriously contest this conclusion, but argue that under recent Board decisions common ownership alone is not sufficient to make C & P, Twin City, and Oshkosh "allied employers" within the meaning of Section 8(b)(4), and that there must also be proof of "such actual active or common control, as distinguished from a mere potential, as to denote appreciable integration of operations and management policies," citing Drivers, Chauffeurs and Helpers Local No. 639, Teamsters (Poole's Warehousing, Inc.) 158 NLRB 1281, 1285, 1286, cited and followed in Courtney & Plummer, Inc, supra, and that such proof is lacking here. Accepting these principles, Respondents argue that additional facts in the record amply prove the additional element quoted above. On the element of " active or common control, " it is at once apparent that in their basic operating structure and daily management, Twin City, C & P, and Oshkosh are entirely separate. Meilahn has no interest or control in Twin City or C & P, and the Courtneys and Plummers in those concerns which comprise the nine Inland partners who own half of Oshkosh do not in fact exercise any active part in the operation or control of Oshkosh; they act only as silent investment partners therein, receiving periodic accountings from Meilahn, the active partner, to which they are entitled. The two C & P enterprises and Oshkosh maintain entirely separate records and administrative personnel in offices miles apart. There is no evidence of actual common supervision of such offices, records, or personnel. Turning to actual integration of operations, the record shows that in the group of RM concerns under common ownership, all with a few exceptions have continued to operate in their respective areas substantially as before their acquisition by the C & P-Meilahn combine. Green Lake RM, with four plants rather closely grouped to the west of the Lake in Waushara, Green Lake, and Marquette Counties, sells not only RM concrete but hauls dry cement in bulk, it hauls the latter product, which is the main ingredient of concrete, to plants of Oshkosh, Beaver, Randolph, and Waupun (among other RM companies), the latter three operating plants generally south of the Lake. In January 1966, on joint application of the nine Inland partners and Meilahn, listed together as "doing business as" Green Lake, Oshkosh, Waupun, and Randolph, the Wisconsin Public Service Commission granted them authority to continue to transport bulk dry materials for building and highway construction in nine counties abutting the Lake on the north, west, and south, as Green Lake did, and expanded that authority to include transportation of asphalt mix, wet cement, and RM concrete in the same broad area, the assignees representat- ing they would service dealers in RM concrete in that area. However, there is no proof that under this expanded authority Green Lake RM or the above applicants have significantly increased or concentrated their haulage of any of the above materials or products only to RM concerns within the C & P-Meilahn ownership. In fact, in the 13 22 There is no proof that C & P, Twin City, Inland, or any of the Courtney or Plummer family members individually have any interests 229 months from January 1, 1968, to February 2, 1969, Green Lake has used more than half the dry cement it buys in its own RM plants, and the remainder was sold to at least eight RM companies, four in the C & P-Meilahn ownership, the other four being independents; the largest buyers, in order, were Beaver, Oshkosh, Valley RM (an outsider), with smaller amounts to Randolph RM and Waupun RM and the smallest amounts to Twin City Concrete, Badger Highways, and Lakeview Sand and Gravel, the latter two being outsiders. Aside from the fact that Green Lake began its hauls into the Fox Valley area since the 1968 strike of Teamsters 126 against Oshkosh and Cook & Brown, there is no credible proof that the nature or volume of its business with the C & P-Meilahn concerns has changed appreciably since the 1966 grant of expanded transportation authority. In addition, it appears that it charges all buyers at the same rates for the same length of haul; there is no preferred treatment in rates given to concerns in the C & P-Meilahn combine. Since its formation Oshkosh always used crushed stone as a basic ingredient of its RM concrete, and its main source is Vulcan Materials, an independent, which is the closest supplier; it has bought small amounts of specific small-size (3/4) stone from C & P, but most of it from other sources outside the C & P-Meilahn complex. In the 13 months of 1968 plus January 1969, Oshkosh bought a substantial amount of 3/4 stone from C & P at Neenah, hauling it in its own trucks, but this purchase was forced on it for a period up to 6 weeks in the summer of 1968 when Vulcan drivers refused to load Oshkosh trucks while Teamsters 126 was on strike against Oshkosh; for the same reason, it was forced to turn to A. E. Schultz Corporation of Neenah, another independent, for stone to the extent of $6,000. Aside from that period, Oshkosh still bought nearly $33,000 worth of stone from Vulcan out of total expendi- tures of about $101,000 for supplies other than concrete. In that period, Oshkosh bought over $50,000 of sand and gravel from Cedar Lake Sand & Gravel Co., an independ- ent firm and a normal source which is further from Oshkosh than the Neenah plant of C & P,22 and it also bought about $1,600 worth of RM concrete from the Twin City plant in Neenah in December 1968, for use on nearby gasoline station project (not the Midway site involved here). In sum, Oshkosh purchases from Twin City and C & P in that period totaled only about $10,500 out of total purchases of about $105,000, which in context appears to be far less than a significant amount of business dealings between the 3, compared to the business done with 11 outside firms in the period. Hence, in considering sales and purchases of materials overall, I find no significant departure from past practices by C & P, Twin City, or Oshkosh which would tend to demonstrate an appreciable integration of operations. Respondents argue, however, that the joint acquisition since 1964 by the Inland partners and Meilahn of 5 RM companies operating a total of 10 separate RM plants in rather close proximity to each other and to 4 similar plants of Brillion RM and Twin City in counties to the north, west, and south of the Lake discloses an appreciable horizontal integration of both interests in business operations. whatever in any of the companies from which Oshkosh buys the bulk of its sand, gravel, stone, and aggregate 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assuming that 9-3/4 miles is the most efficient distance for transportation of RM concrete to a jobsite,23 and taking that as the normal radius of operation of an RM concrete company, it is clear from a map prepared by Schlieve and in evidence to show the position and area of operations of the 10 plants, that the 10 fairly well blanket an area extending about 10 miles north of the Lake, about 70 miles to the west, and about 60 miles to the south. This extension of the RM concrete operations of Inland and Meilahn in a compact area is some mechanical evidence pointing toward possible integration of operations and management, but I do not consider it substantial or significant evidence of meaningful integration because there is no evidence of significant reciprocal dealings with one another among all these concerns to the exclusion of dealings by them with outside, or independent, RM companies in the same broad area. As noted above, all of these concerns have continued to deal with each other and with outside concerns substantially as in the past. Furthermore, while these acquisitions may well continue and begin to assume the outline of a plan of expansion (though any set plan therefor is denied by the Courtneys and Plummers who testified, and Meilahn), it does not show that, as of the hearing dates herein, any significant monopoly of RM concrete opera- tions in the area had been planned or put in operation. To the contrary, I find from Meilahn's uncontradicted testimony and admissions of Schlieve that in 1969 there were at least 19 other RM concrete dealers operating throughout the whole general area, 5 or 6 of which have continued to trade RM concrete, equipment, and personnel with concerns in the Inland-Meilahn complex as in the past. Some of the outside concerns are well within the effective circles of operations of the Inland-Meilahn concerns, but many are outside those circles, so that it can be presumed they still service areas which Inland-Meilahn companies do not try to service appreciably.24 As for interchange of equipment and personnel, the record shows that in the Fox Valley and adjacent areas it has long been the practice for RM companies to rent RM trucks from each other, with all charging and paying the same rental rates depending on the size of the truck. In all such rentals the services of the driver of the renting company goes with the truck and he takes orders from the lessee thereof as long as the latter uses the truck, but is not paid separately by the lessee. Prior to 1964, Twin City Concrete rarely rented RM trucks from other RM companies, the only recorded instances being a single rental from Green Lake RM in 1961 and one from Badger Highways in 1960. After Oshkosh was formed in April 1964, Twin City began almost monthly rentals in small amounts from Oshkosh, which increased substantially in 1965 through 1968; in the same period it made smaller but significant rentals from Green Lake RM, and occasional rentals from Waupun RM and Randolph RM. In contrast, 23 Charles Plummer testified to this effect, and Schlieve, business agent of Teamsters 563, corroborates him. Testimony of David Courtney, Jr., and Zimmer indicated that an RM concrete dealer can haul RM concrete in mixer trucks as far as 30 miles without deterioration of the concrete, but that, in practice and for best economy, the shorter distance it is hauled before use, the better. Hence I accept Plummer's testimony as to most efficient distance. 24 f find from credible testimony of Mayo, Meilahn, Koenig, and it made no rentals from outside RM companies in the same period, except in comparatively small amounts from Valley RM in 1965 through 1968, in smaller amounts from Schabo Materials in 1965 and 1966, and a large amount ($2,206) from one Duppeck in 1965; the latter rental probably involved a major job in the Appleton-Neenah-Menasha area not far from Antigo, where Duppeck was located. Charles M. Plummer, president of C & P, explained that Twin City procured its trucks mostly from Valley RM, Schabo Materials, and Oshkosh, because the first two are located in Appleton, a short distance from Neenah, while Oshkosh is about 16 miles away but the three are the closest RM companies to Neenah, and Twin City thus pays the least travel time in hiring their trucks, if available. He also testified that in 1968 Twin City hired mostly from Oshkosh, which had the only RM trucks available, as Valley RM and Schabo was short of drivers due to the strike and had to use all their own trucks; this explanation is not controverted and affords a reasonable explanation for the fact that Twin City since 1965 has relied heavily on Oshkosh for such equipment. The heavy Twin City rentals from Green Lake, whose three plants are further from Oshkosh than two independent plants in Appleton, was due to the fact that Twin City often had to go that far afield for additional trucks to handle business its own trucks could not handle; and it had to do this even though the added travel time made the rental rates greater. On the other hand, the same pattern does not appear on rentals of equipment to other companies. The record shows that from 1965 through February 1969 Twin City normally rented more trucks to outside companies than to C & P- Meilahn companies: In 1965, its rentals to Oshkosh and Green Lake RM totaled about $4,000, as against about $525 to Valley RM and Schabo Materials, but the large rentals to Oshkosh and Green Lake occurred while Twin City was struck by Teamsters 563. In 1966, rentals to Oshkosh brought in about $1,850, while those to independ- ents (Fox Valley Construction Co., Schabo, Valley RM, and Cook & Brown) brought over $7,100. In 1967, rentals to Oshkosh brought about $1,450, but those to Schabo and Valley RM amounted to about $1,850. In 1968, rentals to Oshkosh were $1,375, while those to six outside companies totaled over $3,000. Hence, these figures do not indicate any favored treatment of RM companies in the Inland- Meilahn combine. Further, any significance in the transac- tions by Twin City with concerns in the combine fades away when the small figures on its hire and rental of equipment with concerns in the combine are compared with its gross annual purchases of nearly $1,000,000 and its gross annual sales of $1,500,000. On the question of employee interchange between the C & P-Twin City enterprise and Oshkosh, David Courtney, Jr., testified credibly that except for some minor and abnormal cross-hiring of employees during the disruption Schlieve that it is common practice in the whole area for RM companies to buy batches of concrete from one another whenever the seller's plant may be nearer to a working site than the buyer's own plant ; however building contractors may also buy mostly from one RM concern when working in a specific area, usually but not always the plant closest to his jobsite, and in such dealings he may actually receive concrete prepared in another RM plant, if his supplier runs short or cannot deliver RM concrete for other reasons. GENERAL DRIVERS, LOCAL 563 231 caused by the 1965 strikes there has been no interchange of employees between them. Respondents argue that the increased rental of RM trucks with drivers by C & P from Oshkosh shows that C & P and Twin City thus substantially supervise and control drivers of Oshkosh, and is proof of substantial interchange. But this has no merit, since the driver in a mechanical manner "goes with the truck" on each such rental and during the rental perforce does work only for C & P as part of its own business; C & P does not pay his wages or any other benefits, or control his general working conditions, as such, but only pays for his services in the hourly rental rate for the truck. During such rentals, neither C & P nor the driver acting at its orders does any work for Oshkosh. The same situation obtains when Twin City has rented trucks with drivers to Oshkosh to some extent each year but, as noted above, the amount of such rentals is usually far less annually than to outside RM companies; and it would be quite farfetched to argue that such rentals to or from outside companies thus indicate that C & P or Twin City are to that extent integrated in their operations with all such companies. Since I have found that the practice of cross-rentals of trucks with drivers among RM companies generally is widespread, I do not consider the mechanical cross-transfer of drivers a meaningful interchange of personnel within the purview of the cases dealing with the "allied employer" defense. On the issue of joint or coordinated labor policy and relations, the record shows that: Charles M. Plummer generally handles daily labor policy and personnel relations for C & P and Twin City, while Meilahn has been doing the same for Oshkosh. However, the interrelation between the two during the 1965 and 1968 labor disputes and negotiations is pertinent. The record also shows that, in the 1965 contract negotiations between Teamsters 563 and the Association, Charles M. Plummer and David Courtney, Jr., jointly represented Twin City and C & P and finally executed similar 3-year contracts with that union for their respective companies (Plummer for C & P and Courtney for Twin City). In the negotiations the principal negotiator for all Association members was attorney Gordon P. Gill, of Appleton, who had in the past represented the various RM companies in the Association, before its formation, in both joint and individual negotiations with Teamsters 563, and also in continual administration of earlier contracts between those parties. During the 1965 negotiations, Teamsters 563 in August struck all members of the Association except one (Calnin & Goss). About two weeks after the strike began at Appleton, Teamsters 563 also picketed Oshkosh, continuing that conduct until a few days after the final negotiation session with the Association. While that picket line existed, members of Teamsters 126 employed by Oshkosh refused to cross it, and Teamsters 126 extended the picketing to Waupun RM and Green Lake RM plants (although it had contracts with Oshkosh and had reached agreement with the other two companies),25 on the theory that the three companies were "allied" with C & P. Based on the conduct of both unions, Inland and Oshkosh jointly filed a suit for damages in a local court against both and their respective agents; Gill was attorney for both plaintiffs. While that suit was pending, the defendant unions subpenaed Charles M. Plummer to appear at Oshkosh on October 11, 1965, to give pretrial depositions before a court commissioner. In that period, the Association members including C & P had continued contract negotiations with Teamsters 563; C & P reached an agreement with Teamsters 563 a few days before October 11. When Gill brought Plummer to Oshkosh for the depositions on that day, he told Plummer he had been discussing settlement of the suit with officials and the attorney for Teamsters 126, so that Plummer would be available to sign necessary releases on behalf of Inland if the case was settled and to give his deposition if it was not. When the parties and their counsel gathered for the depositions, Gill conferred further on settlement with counsel and officials of both unions, and in a long afternoon discussion involving these representatives, as well as Plummer and Meilahn, the suit was settled with releases exchanged by both parties. At the same time Meilahn sought and obtained modifications of the new Oshkosh contract with Teamsters 126 which created a wage differential between employees of Oshkosh and Waupun and Green Lake, in order to prevent cutrate competition between them. At the same time, Teamsters 126 sought and Meilahn agreed to establishment of a definite boundary line between the territories to be served by Oshkosh and Waupun, so that Waupun could not do business in the Oshkosh area and make its drivers lose business and pay.26 Robert Schlieve, business agent of Teamsters 563, acted as a go-between in these discussions between Teamsters 126 and Meilahn, but took no part in the actual negotiations for Teamsters 126. However, Schlieve raised an issue about differences in rates for drivers under the Oshkosh contract rate and those paid under the Twin City-Teamsters 563 contract and asked what rates would be paid if drivers of either worked in the territory covered by the other union contract. Plummer and Meilahn settled this by agreeing that Oshkosh trucks would operate only below a fixed road line somewhere between the Neenah-Menasha area and Oshkosh City, but that if Oshkosh drivers worked in the area serviced by Teamsters 563 they would get the rates of its contract. At the same time Plummer negotiated for and procured the insertion of a standard "no-strike, no- lockout" clause in the Oshkosh contract to prevent Teamsters 563 from picketing of Oshkosh if it operated in an area where another struck RM company normally operated. Since there was a dispute between Teamsters 126 and Green Lake RM about its representation of Green Lake workers, Plummer also asked for and procured a withdrawal of Teamsters 126's claim for representation, so as to prevent that union from extending any picketing to the plant of Oshkosh or those of C & P and Twin City at Neenah on any issue involving Green Lake. In working out these settlements, Gill also procured substantially the same 25 In negotiating these contracts, Teamsters 126 had dealt jointly with in a contract, Gill was present to advise Meilahn Meilahn acting for Oshkosh and officials of two other RM companies 26 This part of the settlement also disposed of unfair labor practice (Cook & Brown Lime Co and Pipkorn Fuel & Supply Co), and in course charges filed against either Green Lake RM or Waupun RM based on thereof Meilahn had advised the union representatives that Attorney Gill alleged unilateral wage changes for Waupun employees contra its contract. represented Oshkosh; and in the final negotiation session in July, resulting 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modifications of provisions of the Teamsters 563 and 126 contracts, as well as standardization of other clauses, which he wanted in order to facilitate his administration of each contract, both in their interpretation and resolution of disputes for the employers thereunder. On the basis of all the above settlement terms, Gill requested and procured from the Board's Regional Director approval of withdrawal of the various charges filed by the employers and unions against each other. During 1967, Gill advised Meilahn in the course of processing grievances under the Oshkosh contract with Teamsters 126. He also continued to represent the Association and its members in administra- tion of their contracts with Teamsters 563 until early 1968.27 Although it is clear that in 1965 C & P and Twin City, as part of the Association, had conducted negotiations and reached agreements with Teamsters 563, which were separate and 'apart from negotiations and agreements by Oshkosh and other RM companies in its area with Teamsters 126, the facts that in 1965 Inland (which must be considered part of the Twin City-C & P combine) took joint legal action with Oshkosh against both unions based on their coordinated strike activities against Association members and Oshkosh and other RM companies south of it, that, in settlement of that suit and various unfair labor practice charges filed by employers and unions against each other, both C & P and Oshkosh sought and obtained modifications of the C & P and Oshkosh contracts designed to protect them singly and jointly against future strike activity by either or both unions, that a single attorney acted for and with both employers in working out the settlement and contract modifications and also continued to administer both contracts for the employers during most of the contract terms, are all potent circumstances which compel the conclusion that in 1965 and up to 1968 Twin City, C & P, and Oshkosh shaped and pursued a coordinated if not fully common or centralized labor policy, which is substantial indication of the type of integration of management policies that makes them "allied employers" within the meaning of Section 8(b)(4) of the Act.28 The C & P and Oshkosh contracts expired early in 1968, the Oshkosh agreement ending May 1 (the same for all other RM companies in that area), and that of C & P about the same time. In February 1968, Teamsters 563 was notified by a Madison firm of attorneys that the Association contracts were being terminated, and that said attorneys would represent the Association and its members in negotiations of a new contract. That firm had been hired by the Association late in 1967, after Gill had withdrawn as its representative on labor matters, and confined his labor work to occasional represention of some of its members individually in labor matters. Since its appointment, the Madison firm has represented C & P and Twin City in all labor matters. Sometime shortly before May 1, 1968, 27 The facts of the 1965 dealings are found from credible testimony of Robert Schlieve and Donald Wetzel, as corroborated in large part by admission of Meilahn, Charles M. Plummer, and David Courtney, Jr., and documentary evidence. Testimony of Plummer at variance with these findings is not credited, for his recollection of the details and progress of the October I I negotiations was vague and at times self-contradictory. Gill was not called as a witness by any party. Oshkosh, Waupun RM, and Cook & Brown decided to hire the present counsel for the Charging Party as their attorneys for labor matters, and Local 126 learned of this when its officials first met Russ R. Mueller of that firm at a negotiation session on April 30, 1968. There is no evidence of prior coordination or agreement between C & P and Twin City on the one hand, with Oshkosh or the other two RM companies on the other, about the choice and hiring of either firm. Before the contracts of Oshkosh and other RM companies south of the Lake expired on May 1, Local 126 had sent new contract demands to each, and there had been preliminary discussions between union officials and officials of some of these concerns, without reaching any agreement. In this period, the demands were discussed at one or more weekly luncheon meetings in mid-April in Oshkosh which were attended by officials of many of the RM companies operating in the Fox Valley area around Appleton as well as along the west side of the Lake and as far south as the Fond-du-Lac area. At one meeting attended by Meilahn representing Oshkosh and Waupun RM, and officials of Cook & Brown, Lakeview Sand & Gravel, and other companies, there was general discussion about whether the RM companies should accept a strike or should lockout their employees if no agreement was reached by May 1. Some Fond-du-Lac area concerns favored no lockout and further negotiations, although they all thought a strike was inevitable, but Meilahn favored a lockout. There was no agreement reached on this, particularly since definite demands had not been received by all companies from Teamsters 126. There was some discussion about whether C & P would accept a strike and try to operate without union help, and some company men present got the impression that it would probably accept a strike and lockout their employees, although its business was building up. While none of the officials at these meetings were clear about whether any member of the Courtney or Plummer families was present, and neither David Courtney, Jr., nor Charles M. Plummer could recall, and would not admit, their presence at such a meeting, it is inferable that Meilahn was the source of the impressions received at the meeting about the C & P attitude, particularly since he appeared to favor a lockout even that early, and both Courtney, Jr., and Plummer admitted they had attended the Oshkosh industry meetings sporadically and probably had discussed the labor negotiations in the Fox Valley area generally with Meilahn at various times in this period. On April 30, the day before the contract expired and after an unsuccessful meeting with Teamsters 126 that day, Meilahn told David Courtney, Jr., in a phone conversation that Oshkosh and Cook & Brown would probably lockout their employees if no agreement were reached. Courtney had no part in this decision, and did not object to Meilahn's plan of action. Oshkosh and Cook & Brown locked out their employees on May 2, and it 28 See Drivers, Chauffeurs and Helpers Local No. 639 (Poole's Warehousing, Inc.,) supra, and Miami Newspaper Printing Pressmen Local No. 46, etc. (Knight Newspapers, Inc.), 138 NLRB 1346, enfd. 322 F.2d 405 (C.A.D.C.), for the guiding principle, and Sakrete of Northern California Inc., 137 NLRB 1220, 1223, and General Drivers, Local Union No. 886 (Ada Transit Mix), 130 NLRB 788, 795, for the ruling that identity and single control of labor policy is an important aspect of a single employer finding. GENERAL DRIVERS, LOCAL 563 continued until July 17. Negotiations with Teamsters 126 continued in the meantime, and both employers ended the lockout on July 17, but their employees refused to return and struck instead. During that strike, both companies hired temporary replacements for the strikers. Meilahn kept David Courtney, Jr., advised of these actions by Oshkosh. I am convinced and find that Meilahn as the agent of Oshkosh and Waupun RM was a prime mover in these actions against Teamsters 126, because of his aggressive part in expanding the C & P-Meilahn participation in the RM industry in the Lake area, and that his decision to fight the union aggressively with a lockout stemmed in large part from its early wage demands which sought parity of wages with those which employees represented by Teamsters 563 in the Appleton area were getting,29 involving a sum over a 3-year period which would have greatly affected Oshkosh and its neighbor RM companies, as the labor costs in such companies were generally about 25 percent of total gross income. However, his prominence in these events also highlights more sharply the fact that the C & P-Twin City interests had no actual or even inferable voice or part in the strategy of Oshkosh against Teamsters 126. It appears that in this period, the Association members had not yet received any demands or held any negotiations with Teamsters 563, so it is unlikely that those attending the April industry meetings in Oshkosh would have received any definite indication about the attitude of Association members toward a strike by Teamsters 563. Considering that in 1968 there were separate counsel representing Association members and the southern RM companies associated with Oshkosh in dealing with Teamsters 126, and that in the economic warfare with that union Oshkosh acted solely in concert with Cook & Brown and Waupun RM, and lacking any substantial or credible proof of coordination with Twin City-C & P or other Fox Valley RM companies, the 1968 negotiations do not appear to portray the significant coordination of labor policy between the C & P-Twin City combine and Oshkosh that obtained in 1965. Hence, it is no more than speculation to say, as Respondents contend, that continued integrated control of labor policy must be found from the mere fact that Meilahn kept the C & P interests advised of all events and decision of Oshkosh in the 1968 negotiations and economic warfare with Teamsters 126, for in this respect Meilahn was doing no more than what all RM companies in both the Appleton and Fond-du-Lac areas did for each other continually during their weekly industry meetings in Oshkosh, to which all had a standing invitation. Respon- dents also argue that Meilahn's reports to David Courtney, Jr., about the demands of Teamsters 126 and his response to them were in fact mandatory in order to procure prior approval of his proposed lockout and other actions, because the union demands, if accepted, would have 29 The details of these negotiations are set forth in the Board's Decision in Teamsters, Local Union 126 (Inland Trucking Co and Wesley Medahn Co- Partners d/b/a Oshkosh Ready-Mix Co, et al), 176 NLRB No 52, of which I take judicial notice The Board there found that Teamsters 126 had not violated Section 8(bX3) of the Act by its panty and related demands during bargaining with the above employers. 3° Respondents adduced proof that, shortly after the Inland partners and Meilahn took over Beaver RM in April 1967, Medahn and David Courtney, Jr, acted together to negotiate a new contract with another Teamsters local. However, this was clearly forced on them by the 233 entailed expenditure of over $20,000 in added labor costs over 3 years, and such expenditures could not be undertaken without specific approval of the C & P interest. This is an untenable argument, for a capitulation to this union demand without bargaining would have entailed only about $6,600 of added labor cost spread over each year, for which Meilahn needed no advance approval from his partners in Inland, as found above; and there is no proof as to the probable cost to Oshkosh of a long lockout of drivers or the ensuing strike, especially where it appears Meilahn promptly replaced strikers. In sum, the most the record shows is that, during the 1968 negotiations, lockout, and strike, Meilahn was "going it alone," in concert only with Cook & Brown for a while, and then entirely alone after Cook & Brown and other nearby RM companies settled with Teamsters 126, but without prior specific clearance with or permission of the C & P interests, or any second guessing by them on the situation since. Nor can I infer joint determination of labor policy from the fact that when the 1965 contracts were approaching expiration, the Twin City-C & P combine and Oshkosh each procured separate labor counsel, for the selections occurred at different times in 1967 and 1968, so far as this record shows, and there is no substantial proof of prior consultation of both interests on this subject alone which would overcome the impressive proof that in 1968 Meilahn was continuing to run Oshkosh and make all management decisions for it, including labor policy, on his own as the sole operating manager of the company, and that he has never had any interest or control in Twin City-C & P. I have also noted that there is some parallel in conduct between the two enterprises in that both operated during their 1965 strikes without replacements to any appreciable extent, while both used replacements almost from the start during the 1968 strikes, which were still continuing at the time of the hearing. However, I consider this parallel conduct of slight importance for the same reasons stated above with respect to choice of new labor counsel. On the other hand, further evidence of separation in handling of labor policy and strategy lies in the lack of proof of simultaneous or coordinated contract bargaining, or execution of original contracts, either in 1965 or 1968, by the C & P-Twin City combine and Oshkosh and its associated southern RM companies in dealings with Teamsters 563 and 126 respectively.30 Respondents also see evidence of integrated labor policy in the fact that two C & P employees appeared on the Midway project and helped unload the Oshkosh RM truck on December 11. The record shows that: Both men came to the site at the request of Haldon, after Mayo had advised him of the union trouble, and Wolfe of Haldon had replied that he would ask the C & P men to go over to help out, explaining that if one of them came to the job, the union expiration of the old contract shortly after the takeover, and they had not yet had time to install a new manager for the operation, so that they had to work out the contract themselves Since then, a new manager has been in charge, with full responsibility for day-to-day operations including labor relations and policy Hence, I do not consider this one-time point action of Courtney, Jr, and Meilahn, who were both officers in the Beaver concern after the takeover, as substantial evidence of continued integration of labor management and policy in that company or any other in the Inland- Meilahn combine. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agents would not bother Mayo any more . After the concrete was poured Sweet of C & P called Wolfe to report what had been done, including the fact that he had himself ordered another load of stone from C & P. Credible testimony of Wolfe and Sweet indicates that Sweet took it upon himself to help out Wolfe in this emergency because he was a personal friend of Wolfe , and Haldon had been a good customer for C & P stone for this and other projects over the past few years. Sweet had tried to sell C & P concrete as well as stone to Haldon for this job, since a C & P concrete plant was only a short distance from the project, but Wolfe had turned him down on the concrete , preferring to buy it from Oshkosh, though its plant was about 17 miles away, because it had used Oshkosh concrete in the past and felt he would have less labor problems buying from it than from C & P.31 Wolfe admits that prior to that strike his concern had never used Oshkosh concrete for work in the Neenah-Menasha area but had bought it from C & P, and that in the past it had bought stone and fill from C & P for jobs in the Oshkosh area , but not RM concrete . This proof indicates that Haldon, and through it Mayo, were perhaps changing their buying habits for RM concrete due to the pending strike by Teamsters 563 against C & P-Twin City, but there is no proof that the advent of Sweet on this occasion was by any prearrangement with Oshkosh , hence I do not consider the actions of a secondary contractor in trying to get concrete from a source less likely in his view to run into labor problems, and his decision in a strike situation for personal reasons to get help from an official of one primary employer to help unload a truck of another primary employer, as proof of a joint labor policy between the two primary employers . Even if there had been some proof of a practical prearrangement in this emergency in order to get the concrete poured, it would not destroy the neutrality of Haldon, Mayo, or Oshkosh, vis-a-vis the C & P dispute with Teamsters 563, for it has been held that a close working relationship between independent contrac- tors is not enough to destroy the neutrality of one of them which is otherwise a secondary employer within Section 8(b)(4). N.L.R.B. v. Denver Building and Construction Trades Council, et al. [Gould & Preisner], 341 U.S. 675, 689. In sum, while a slight inference might arise that a joint labor policy made and pursued during and after the 1965 settlements might be continued by the two enterprises, that inference and the other circumstances alluded to by Respondents as noted above are not sufficient to overcome the salient factor that during the 1968 disputes, Oshkosh pursued its own strategy along with Cook & Brown and Waupun RM, all in the southern area , in dealings with Teamsters 126, while Twin City-C & P apparently followed its own policy vis-a-vis Teamsters 126. I conclude that all the pertinent proof falls short of establishing that during the 1968 dispute Twin City-C & P was allied with Oshkosh within the meaning of Section 31 In 1968, particularly December, Teamsters 563 represented about 90 employees of C & P and Twin City, who comprised the great majority of all employees of Association members, and these concerns were the only Association members still on strike. Oshkosh, of course, had no dispute with Teamsters 563. 32 I have carefully considered other corollary contentions raised by Respondents in arguments on motions during the hearing and in their brief, and find them without merit. 8(b)(4) insofar as labor policy was concerned, or in any other pertinent aspect of business relationships. Having concluded that the affirmative defenses raised by Respondents, and their arguments in support thereof, are without merit,32 I find and conclude on all the pertinent facts found above and for reasons stated above that Respondents and their agents named above, jointly and severally, have violated Section 8(b)(4)(i) and (ii)(B) of the Act.33 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the operations of Haldon, Mayo, C & P, and Oshkosh described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that they cease and desist from such practices, and take certain affirmative actions designed to effectuate the policies of the Act. In view of the propensity of Respondents to engage in "secondary" activities against the above employers and other neutral employers engaged in the construction and RM concrete industry within the wide geographical area of the jurisdictions of Respondents, as shown by the above facts and in Courtney & Plummer, Inc., supra,34 there is strong likelihood that they may engage in similar coercive and unlawful conduct affecting other neutral employers. Hence, I will recommend a broad cease-and-desist order, as the Board did in the above-named case. CONCLUSIONS OF LAW 1. C & P, Oshkosh, Haldon, and Mayo are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act, and Jeffrey Curtin, Donald Shaw, and Roland Choudoir are agents of Respondents Teamsters 563, Engineers and Plumbers respectively, within the meaning of Section 2(13) of the Act. 3. By inducing and encouraging individuals employed in industries affecting commerce to engage in a strike or refusal in the course of their employment to handle or use materials, and to perform services, with an object of forcing or requiring Mayo and Haldon and other persons engaged in commerce or in industries affecting commerce to cease 33 There appears to be no issue or argument here that C & P or Twin City was performing "struck work" for Oshkosh, or vice versa, nor is there any proof which would support such a finding. 34 See also Building and Construction Trades Council of Fond du Lac County, et at. (Roger W. Peters Construction Co., Inc.,, 168 NLRB No. 81, involving similar violations by Teamsters 126, which the Board noted in the Courtney & Plummer, Inc., case. GENERAL DRIVERS, LOCAL 563 using, handling, or otherwise dealing in products of, and to cease doing business with either C & P or Oshkosh, or both, and forcing or requiring Oshkosh to cease doing business with Mayo in order to force or require Mayo to cease doing business with Haldon, so that Haldon in turn would be forced to cease doing business with C & P, Respondents have engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(i)(B) and 2(6) and (7) of the Act. 4. By threatening, coercing, and restraining Mayo and Haldon to cease doing business with C & P and Oshkosh, Respondents have engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(4)(ii)(B) and 2(6) and (7) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Trial Examiner hereby issues the following: RECOMMENDED ORDER The Respondents, General Drivers & Dairy Employees Union Local 563, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, International Brotherhood of Operating Engi- neers, Local No. 139, AFL-CIO, and Plumbers & Steamfitters Local No. 458, and their respective officers, representatives, agents, successors, and assigns, jointly and severally, shall: 1. Cease and desist from: (a) Inducing or encouraging any employees of Haldon Corp. or W. C. Mayo, or any individual employed by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to handle or use materials or to perform services with an object of forcing or requiring the above or other persons to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both, and of forcing and requiring Oshkosh Ready-Mix Co. to cease doing business with W. C. Mayo in order to force or require W. C. Mayo to cease doing business with Haldon Corp. in order to force the latter company, in turn, to cease doing business with Courtney & Plummer, Inc. (b) Threatening, coercing, or restraining Haldon Corp. or W. C. Mayo, or any other person engaged in commerce or in any industry affecting commerce, with an object of forcing them to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Post at their respective offices and meeting halls copies of the attached notices marked "Appendixes A, B, or C," as applicable 35 Copies of said notices, on forms provided by the Regional Director for Region 30, after being duly signed by authorized representatives of Respondents, shall be posted by each of said Respondents immediately upon receipt thereof, and be maintained by each for 60 consecutive days thereafter, in conspicuous places, including all places where notices to their members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. 235 (b) Promptly after receipt of copies of said notices from said Regional Director, return to him signed copies for posting by Haldon Corp. and W. C. Mayo, if they be willing, at their places of business, including all places where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.36 31 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 36 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith " APPENDIX A NOTICE TO MEMBERS POSTED BY ORDER OF THE National Labor Relations Board An Agency of the United States Government WE WILL NOT induce or encourage any employees of Haldon Corp. or W. C. Mayo, or any individual employed by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to handle or use materials or to perform services, with an object of forcing or requiring the above-named companies to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both, and of forcing and requiring Oshkosh Ready-Mix Co. to cease doing business with W. C. Mayo in order to force or require W. C. Mayo to cease doing business with Haldon Corp. in order to force or require Haldon Corp., in turn, to cease doing business with Courtney & Plummer, Inc. WE WILL NOT threaten, coerce, or restrain Haldon Corp. or W. C. Mayo, or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing them to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both. GENERAL DRIVERS & DAIRY EMPLOYEES UNION LOCAL No. 563 AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Second Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-272-3861. APPENDIX B Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Second Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53202, Telephone 414-272-3861. APPENDIX C NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any employees of Haldon Corp. or W. C. Mayo, or any individual employed by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to handle or use materials or to perform services, with an object of forcing or requiring the above-named companies to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both, and of forcing and requiring Oshkosh Ready-Mix Co. to cease doing business with W. C. Mayo in order to force or require W. C. Mayo to cease doing business with Haldon Corp. in order to force or require Haldon Corp., in turn, to cease doing business with Courtney & Plummer, Inc. WE WILL NOT threaten, coerce, or restrain Haldon Corp. or W. C. Mayo, or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing them to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 139, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. WE WILL NOT induce or encourage any employees of Haldon Corp. or W. C. Mayo, or any individual employed by any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of their employment to handle or use materials or to perform services, with an object of forcing or requiring the above-named companies to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both, and of forcing and requiring Oshkosh Ready-Mix Co. to cease doing business with W. C. Mayo in order to force or require W. C. Mayo to cease doing business with Haldon Corp. in order to force or require Haldon Corp., in turn, to cease doing business with Courtney & Plummer, Inc. WE WILL NOT threaten, coerce, or restrain Haldon Corp. or W. C. Mayo, or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing them to cease doing business with Courtney & Plummer, Inc., or Oshkosh Ready-Mix Co., or both. PLUMBERS & STEAMFITTERS LOCAL No. 458 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Second Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53202, Telephone 414-272-3861.