Teamsters, Local 85

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters, Chauffeurs, Warehousemen and Helpers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America' and Viking Delivery Service, Inc. Teamsters, Chauffeurs, Warehousemen and Helpers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Viking Delivery Service, Inc. Cases 20-CC-882, 20-CC-937, and 20-CB-2129 November 9, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On May 20, 1970, Trial Examiner Henry S. Sahm issued his Decision in the above-entitled consolidated proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examin- er's Decision and a supporting brief and Respondent 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 these cases 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 these cases and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner. The Trial Examiner concluded, inter alia, that Respondent violated Section 8(b)(4)(i) and (ii)(B) by its picketing at the premises of Dow Jones & Company, Inc., Airborne Freight and Loretz. We agree but only for the reasons stated herein. The pertinent facts show that on Thursday, May 1,3 about 7:30 p.m., three of Respondent's pickets were on the Dow Jones plant's loading dock. One of the pickets, Henry Montano, an organizer for Respon- dent, was wearing a yellow sash draped over his shoulder which had written on it only the word "Picket." When Dow Jones' production manager, Walter Phillips, asked what was the matter, Respon- dent's business representative, A. T. Andrade, stated that Respondent had a "problem" with Viking Delivery Service and "that there was a picket on the dock, but if [Phillips] didn't want him on the dock, they would go to the parking lot entrance." Phillips told Andrade they could remain on the dock as long as they did not interfere with the work. At the time of this conversation a truck belonging to Airborne Freight was backed up to the dock and was being loaded; no truck belonging to Viking was present. After his talk with Andrade, Phillips left the loading area. Subsequently, a Viking truck arrived at the loading dock and, as it pulled up to the dock, Montano, wearing his "Picket" sash, was standing in front of the truck. On Wednesday, September 24, when Viking truck- driver, Paul Babcock, started to unload a shipment at the Airborne facility, he was, as the Trial Examiner found, assaulted by two of Respondent's agents, one of whom was Montano. After Babcock picked himself up, he looked for an Airborne receiving clerk to acknowledge delivery. When he spotted a receiving clerk and was walking toward him, Babcock heard a whistling sound, looked back, and saw Montano showing a picket sign to the receiving clerk. The receiving clerk looked at the sign and told Babcock that he could not sign for the freight and that Babcock would have to go into the office. As Babcock proceeded toward the office, Montano, walking 10 to 15 steps ahead of Babcock all along the platform and into the Airborne Freight office, displayed his picket sign to Airborne's employees. As Montano walked into the office displaying his picket sign to the employees, Babcock asked an employee for a receipt for the freight which he had delivered and this employee told him that he would have to go upstairs and "see somebody about it" as he could not sign for it. At this point, Babcock telephoned his employer and was told to leave the handbill on the boxes which he had left on the receiving platform. On Thursday, September 25, a Viking truck drove into Loretz and Company's warehouse area. As Loretz receiving clerk James Linnehan walked toward the Viking driver, he saw a man, who he identified as Montano, standing alongside the Viking truck, wearing a banner on which appeared only the word "Picket." Another man who Linnehan was unable to identify was carrying a picket sign that he could not read. When Linnehan asked Montano what was going on, Montano replied, "If you guys keep letting Viking come in here, we'll be picketing you next." r The name of Respondent as it appears in the Trial Examiner's and goods for various firms within California, which are engaged in Decision is incorrect and is hereby corrected. interstate commerce. 2 We note that there is evidence in the record establishing that Viking 3 All dates are in 1969. Delivery Service, Inc., received in excess of $50,000 for transporting freight 186 NLRB No. 72 TEAMSTERS, In Moore Dry Dock Company,4 the Board estab- lished the following criteria for determining whether the picketing of the premises of a secondary employer is primary and therefore lawful: (a) the picketing must be strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer must be engaged in its normal business at the situs; (c) the picketing must be limited to places reasonably close to the location of the situs; and (d) the picketing must disclose clearly that the dispute is with the primary employer. If any one of these conditions is not met, the picketing is unlawful.5 Applying these standards to the instant case, we find that one or more of these conditions were not met in the three incidents alleged as violative of the Act. Thus, in two of the incidents, at Dow Jones & Company, Inc., and Loretz and Company, the picket signs did not disclose that the dispute was with Viking Delivery Service, Inc., the primary employer. In addition, in the Dow Jones incident, the pickets were clearly on the loading dock before the primary situs arrived there. Finally, in the Airborne Freight incident, one of the pickets left the situs and carried his picket sign into the Airborne office, pointing out its legend to the Airborne employees while the Viking driver was trying to get a receipt acknowledging delivery. Under the circumstances of this case, we therefore find that the picketing practice followed by Respon- dent was secondary and therefore violated Section 8(b)(4)(i) and (ii)(B). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Teamsters, Chauffeurs, Warehousemen and Helpers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, San Francisco, California, its officers, agents, and representatives, shall take the following action: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging, by picketing, threats, barring ingress to and egress from company property, or any other means, the individu- als employed by Dow Jones & Company, Inc., Airborne Freight Corporation and Loretz and Com- pany, or individuals employed by any other employer within said Respondent Union's territorial jurisdic- tion, engaged in commerce or in an industry affecting 4 Sailors Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 5 Retail Fruit & Vegetable Clerks Union, Local 640, Retail Clerks International Association, AFL-CIO v N L R B, 249 F 2d 591 (C A 9), enfg 116 NLRB 856 LOCAL 85 463 commerce, to engage in, strikes or refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, where an object thereof is to force or require their employer, or Dow Jones & Company, Inc., Airborne Freight Corporation, or Loretz and Company, or any other employer or persons to cease doing business with each other or with Viking Delivery Service, Inc., or any other employer. (b) Threatening, restraining, coercing, or assaulting any individual employed by Viking Delivery Service, Inc., or any employer or person engaged in commerce or in an industry affecting commerce, by using or threatening them with force and violence, assaulting them, blocking or barring ingress and egress of individuals employed by Viking to premises where they have business, or in any other manner restraining and coercing said persons in the exercise of the rights guaranteed them by Section 7 of the Act. (c) Causing or threatening damage to trucks and other property of Viking Delivery Service, Inc., and injuring or threatening physical violence to employ- ees, supervisors, and company officers, and interfer- ing with a Viking truckdriver driving on company business. (d) Inducing, encouraging, instigating, or assisting any employee or other person to engage in such conduct. (e) In any other manner restraining or coercing any employees in their right under the Act to engage in or not to engage in a strike, to honor or not to honor a picket line, or to engage in or not to engage in concerted activities or in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Post, in conspicuous places, in each of the Respondent's business offices, meeting halls and all other places where notices or communications to its members are customarily posted, copies of the attached notice marked "Appendix A."6 Copies of said notice to be furnished by the Regional Director for Region 20, after being duly signed by an authorized representative of the Respondent labor organization, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent labor organization to insure 6 In the event this Order is enforced by a Judgment of the 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 " 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director sufficient signed copies of the aforementioned notices for posting by Viking Delivery Service, Inc., Airborne Freight Corporation, Dow Jones & Company, Inc., and Loretz and Company, if willing, at all places and locations where they customarily post notices to their employees. (c) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken by the Respondent to comply herewith. APPENDIX A NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To All Employees of: Viking Delivery Service, Inc., Dow Jones & Company, Inc., Airborne Freight Corp., Loretz and Company To All Members of: Teamsters, Chauffeurs, Ware- housemen and Helpers, Local 85, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America After a trial at which all parties were given an opportunity to present evidence and argument, the National Labor Relations Board has decided that Teamsters Local 85 violated the law by committing certain unfair labor practices and has ordered us to post this notice. Teamsters Local 85 intends to carry out the order of the Board and abide by the following: WE WILL NOT, in any manner prohibited by Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, threaten, coerce, or restrain Dow Jones & Company, Inc., Airborne Freight Corp., and Loretz and Company, or any other person engaged in commerce or any industry affecting commerce where, in either case, an object thereof is to force or require the above-named employers, or any other person, to cease doing business with Viking Delivery Service, Inc., or any other person. WE WILL NOT solicit or request members of Local 85 or of any other Teamsters local to refuse to pick up, deliver, load, or unload freight at the terminals of Dow Jones, Airborne, Loretz, or any other person engaged in commerce or an industry affecting commerce, where an object thereof is to force or require Dow Jones, Airborne, Loretz, or any other person to cease doing business with Viking, or any other employer. WE WILL NOT prohibit the members of Local 85 from making pickups or deliveries, loading or unloading shipments of freight, at the terminals of Dow Jones, Airborne, Loretz, or any other person engaged in commerce or an industry affecting commerce, by any provision of the constitution, bylaws, working rules, or collective-bargaining agreement of Local 85, where an object thereof is to force or require Dow Jones, Airborne, Loretz, or any other person to cease doing business with Viking, or any other employer. WE WILL NOT discipline, penalize, or discrimi- nate against any member, nor cite any member for union disciplinary proceedings, for making pick- ups or deliveries at Dow Jones, Airborne, Loretz, or any other person engaged in commerce or an industry affecting commerce, where an object thereof is to force or require Dow Jones, Airborne, Loretz, or any other person to cease doing business with Viking, or any other employer. WE WILL NOT threaten to cause harm or injury to employees, supervisors or company officers of Viking Delivery Service, or any other employer doing business with Viking. WE WILL NOT block ingress to and egress from companies where Viking employees have business. WE WILL NOT cause or threaten damage to the property and trucks of Viking or any other employer doing business with Viking. WE WILL NOT in any other manner interfere with, restrain, or coerce employees of Viking Delivery Service, Inc., Dow Jones & Company, Inc., Airborne Freight Corp., and Loretz and Company, or the employees of any other employer in the exercise of the rights guaranteed to them by Section 7 of the National Labor Relations Act. TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 85, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By This is an official notice and must not be defaced by anyone. (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate TEAMSTERS, LOCAL 85 Avenue, Box 36047, San Francisco, California, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION HENRY S. SAHM, Trial Examiner: This case, heard at San Francisco, California, on vanous dates between February 3 and March 6, 1970,1 pursuant to charges filed the preceding May 6, September 29, and November 21 and complaints issuing June 11, October 21, and December 31, presents two related questions: first, whether Respondent, herein called the Union, violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, herein called the Act, in pertinent part and as amended in 1959, which makes it unlawful for a union or its agents "to engage in, or to induce or encourage" employees "to engage in, the withholding of services," or to "threaten, coerce, or restrain" an employer, where an object is to force a cessation of business relations between neutral employers and the primary employer with whom the union has a labor dispute. This section renders unlawful the use of a secondary boycott to implicate neutral secondary employ- ers in disputes not their own.2 The second question is whether the Union, during the course of its picketing Viking Delivery Service, herein called Viking, the Compa- ny, and Charging Party, violated Section 8(b)(1)(A) by allegedly threatening bodily harm and assaulting personnel of Viking. Upon the entire record, and after due consideration of the brief filed by the General Counsel,3 there are hereby made the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a California corporation, engaged in hauling and transportation of freight by trucks, with its place of business in Santa Clara, California, received in excess of $39,000 for transporting freight and goods within California for Dow Jones & Company, during the past calendar year, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Dow Jones & Company, Inc., a Delaware Corporation, with its principal office in New York City, New York, and other offices in Massachusetts, California, Maryland, Ohio, Texas, Illinois, and New Jersey publishes, among other things, the Wall Street Journal, a newspaper. Dow Jones subscribes to interstate news services; publishes nationally syndicated features; and advertises nationally sold prod- ucts. At its Palo Alto, California, plant, at which certain incidents involved in this proceeding occurred, it has annual gross revenues in excess of $200,000 and it annually ships newspapers valued in excess of $50,000 from said plant directly to consignees in various States of the Western United States. Airborne Freight Corp. is an employer engaged in the business of performing interstate freight shipping services for Dow Jones' vanous publications and periodicals. I All dates refer to the year 1969 except where otherwise stated 2 See Ohio Valley Carpenters v N L.R B, 339 F 2d 142 (C A 6), NLRB v Local 683, 1 BE W, 359 F.2d 385 (C A 6), N L R.B v Local 465 Respondent admits and it is found that Viking is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent Union, Local 85 of the Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Walter Phillips, production manager of Dow Jones' Palo Alto plant, testified as follows: The Wall Street Journal is trucked from the Palo Alto plant by Viking to the local post offices, and Greyhound bus and train terminals in the Bay area4 for distribution to various cities in the Western part of the country. On Thursday, May 1, at approximately 7:30 p.m., John Driscoll, the mailroom foreman, apprised Phillips that there were three Teamsters pickets on the plant's loading dock. As Phillips proceeded to the loading platform, he saw three men speaking to the mailroom typographical union shop steward. When they finished speaking, Phillips introduced himself and one of the men, A. T. Andrade, business representative of the Respondent Union, introduced himself and his two companions, Henry Montano, an organizer, and another organizer named Rex Smith. Montano was wearing a yellow sash about 4 inches wide and 8 inches long, draped over his shoulder and pinned to his coat which had written on it the word "Picket." When Phillips inquired what brought them to Dow Jones' premises, Andrade stated the Union had a "problem" with Viking Delivery Service. When Phillips asked if the picketing meant "a secondary boycott," Andrade replied in the negative, stating it was a "roving picket." At the time of this colloquy, continues Phillips' testimony, there was a truck of Airborne Freight backed up to the dock being loaded. Airborne Freight is a forwarder for Dow Jones, picking up the Wall Street Journal at its plant for delivery to their San Francisco Airport terminal for shipment by airplanes to various cities. Phillips then left the loading area to make a telephone call. When he returned to the loading dock, he noticed a Viking truck on the premises, and that the Airborne truck was not being loaded and had been moved out into the yard about 20 feet away from the dock. Phillips asked what was the trouble and Andrade, the union official, said that the Airborne truckdnver, Carl Jensen, a member of the Teamsters Union, would not load his truck as long as the Viking truck was at the dock. Phillips requested Andrade to permit the Airborne truck to be loaded. Andrade consented to allow the Airborne truckdnver to finish loading his truck whereupon it departed for the Airport to deliver the newspapers for loading aboard a scheduled flight at the San Francisco Airport. The Viking truckdriver who was on the Dow Jones' premises when the above-described incident occurred refused to load his truck until he was sent additional help by his employer from Viking's terminal, about 7 miles 1140, Hod Carriers, 285 F.2d 397, 402 (C A. 8), cert denied 366 U.S 903 3 The Respondent failed to file a brief 4 The "Bay area" encompasses nine counties in northern California. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD distance, because, testified Phillips, "... he said, he was afraid to." Dow Jones' plant is closed from Thursday evening to Sunday afternoon. Phillips notified Viking that Dow Jones would not use their trucks on Sunday, May 4, and Monday, May 5, because "we didn't want to take any chances of a picket line around the plant that would keep any of our union employees from coming to work." Phillips testified that during his conversation with Andrade, the latter made it clear that the Union's picketing would be limited to such times as Viking trucks were on Dow Jones' premises. When Phillips asked Andrade what it would take to remove the pickets from Dow Jones' property, he said, according to Phillips, ". . . get rid of that damned outfit [Viking] and I asked him what would I do to get my mail out, and he said, that's your problem." John Driscoll, who is foreman of Dow Jones' mailing room, credibly corroborated Phillips' testimony. Driscoll testified in substance as follows: When the Viking truck arrived at the loading dock, the Airborne driver, Carl Jensen, moved his truck away from the loading platform and when Driscoll inquired of Jensen if he was going to continue to load his truck, Jensen said, ". . . he'd have to talk to these people from the Union that were there," referring to Andrade, Montano, and Smith. As a result, Dow Jones' employees were unable to load the Airborne truck as it had been driven away from the loading platform. It was then that Phillips, Dow Jones' production manager, asked Andrade, the Teamsters union official, if he would permit the Airborne driver to continue loading the truck, whereupon Jensen, the driver, backed the Airborne truck up to the loading platform and finished putting aboard the truck the Wall Street Journals. After the Airborne truck and the Viking truck had left the premises of Dow Jones, testified Driscoll, he accompanied Phillips over to where Andrade was standing on the loading ramp and Phillips "asked Mr. Andrade how we could stop having the pickets. Mr. Andrade told him that if we would get rid of Viking we wouldn't have any more problems. But if we kept Viking, we were going to have some problems." On examination by the Charging Party's counsel, it was elicited from Driscoll that the Airborne trucks have a specific schedule in order for them to make certain airline flights and that a delay of 5 to 15 minutes at the dock could result in the Wall Street Journals missing their scheduled flights. Driscoll went on to explain that was the reason he asked Jensen, the driver of the Airborne truck, after he had backed his vehicle away from the loading dock whether he would finish loading the newspapers because he was apprehensive that Jensen would not arrive at the San Francisco Airport in time to make the scheduled flight. Driscoll stated in answer to this question that Jensen told him "that he would have to talk to the representatives that were there from his Union before he would load the truck." On cross-examination by Respondent's counsel, Driscoll testified that when the Viking truck pulled up to Dow Jones' loading dock that Montano, the union organizer, who was wearing a "Picket" sash draped over his shoulder and attached to his coat as described above, was standing in front of the Viking truck. Paul Babcock has been employed as a truckdriver for Viking Delivery Service for approximately 10 months. Around noon on Wednesday, September 24, he delivered flowers to the Airborne Freight Corporation's loading dock at the San Francisco Airport. He drove his truck to the loading dock, parked it, walked around to unload the flowers and as he opened the truck door in order to place the flowers on the loading dock, he noticed that there was a man standing to his immediate left and another man to his immediate right. The man on his right, whom he identified as Henry Montano, was carrying a Teamsters sign which, among other things, had written on it "Viking" and "unfair." As he was unloading the freight, Babcock testified that Montano called him a scab and a punk. After Babcock lifted the boxes of flowers onto the receiving platform, he proceeded to place his hand upon the platform in order to swing himself up and onto the platform, when his hand was pulled out from underneath him causing him to fall to the ground. He states that he did not see whom of the two men grabbed his arm, but it is his belief that it was Henry Montano. Babcock states that as he was lying on the ground after falling off the platform, ". . . there was a sound such as, like spitting,-although I couldn't see it, but I could sort of feel a small impact on the back of my shirt which I assume was spit . . . there was a substance on my shirt later when I looked at it." Babcock's testimony continues that after he lifted himself off the ground, he looked for a receiving clerk of Airborne in order to get a receipt acknowledging delivery of the flowers. As he was walking down the Airborne receiving ramp, he noticed that there were no Airborne employees on the ramp, which, he testified, was unusual as there were usually several Airborne employees on the loading ramp whenever he brought freight there in the past. When he finally located a receiving clerk and as he was walking towards him, testified Babcock, "I got about 5 or 10 feet from him when I heard a whistling sound, I looked back and [Montano] the business agent was holding a [picket] sign, and showing it to the receiving clerk.. . . the receiving clerk looked at the sign and told me that he couldn't sign for my freight; that I would have to go into the office." As Babcock proceeded toward the office, Montano was walking 10 to 15 steps ahead of him on the platform and then went into Airborne's office with Babcock walking behind him and Montano "was showing the sign to the different people" as he was walking through the Airborne office. As Montano proceeded to walk into the Airborne Freight office displaying his picket sign to the employees, Babcock stated he asked an employee for a receipt for the freight which he had delivered and unloaded onto the loading dock. This employee, according to Babcock, told him that he would have to go upstairs and "see somebody about it. He couldn't sign for it." At this point, Babcock telephoned his employer, the Viking terminal, and related to Richard Bangham, the president of the company, and John Glenn, the vice president, what had occurred and asked what he should do. He was told by them to leave the handbill on the flower boxes which he had left on the receiving platform. When Babcock returned to his truck, a green Ford station wagon was parked in front of it, blocking his egress, but it was moved so that he was able to leave the Airborne TEAMSTERS, LOCAL 85 467 property. This automobile was identified as belonging to John Cardinale, a union organizer, who figures prominently in two incidents which are described later in this Decision. He testified that under normal circumstances that stop at Airborne would have taken "less than six minutes" but on September 24 he was there for over an hour. When Babcock returned to the Viking truck terminal, he reported to his superiors what had occurred at the Airborne terminal and also related his experiences to six or seven of his fellow truckdrivers who were at the terminal at that time. On Thursday, September 25, Babcock testified that he drove to American Airlines at the San Francisco Airport, where he had "problems" in making his delivery because the American Airlines' receiving clerks refused to talk to him. As he was preparing to drive his truck away, the same green Ford station wagon, which he had seen the day before at Airborne, had his truck blocked so that he was unable to leave American Airlines' receiving dock. He testified that there were two men blocking his truck, one of whom he did not know and the other whom he identified as John Cardinale, an organizer for Respondent Local 85. Babcock telephoned his office and spoke to John Glenn, the vice president, who told him to wait there and he would dispatch another truckdriver by the name of Paul Kerns. As he was waiting for Kerns to arrive, Babcock testified that the unidentified man was standing next to his truck with a picket sign which stated "things like unfair, substandard salaries." When Kerns arrived, the Ford station wagon was moved so that Babcock was able to move his truck. Both Babcock and Kerns left American Airlines in separate trucks and drove to Loretz and Company, a freight forwarder, located in South San Francisco. When they arrived there, Babcock testified that he heard Henry Montano, a union organizer, who had arrived at the same time, telling James Linnehan, who is employed as a receiving clerk by Loretz and Company, "if you let Viking come in here, we'll be here next, or we'll come picket you next." Babcock then returned to Viking's terminal where he related what had occurred. The following day, September 2E, Babcock made a delivery to Airborne Freight Corporation at the San Francisco Airport. After he had unloaded his freight, the receiving clerk refused to give him a receipt, telling him that, if he wanted one, he would have to see someone in the office. As he was walking towards the office, Babcock saw Airborne's dispatcher and asked him to sign the bill of lading, but he also refused stating that "if he signed my bill of lading, he would have to sign a day's wages for signing my handbill." 5 Babcock then saw an employee in the office, whom the dispatcher referred him to, who told him to wait until he spoke with someone upstairs in order to find out whether Viking's freight could be received. When this Airborne employee returned, he told Babcock he was unable to sign for the freight, but if the freight was left on the loading dock that it would be shipped to its destination. As no one at Airborne would issue him a receipt, Babcock was compelled for the second time, to leave the freight on the loading dock. See above. The complaint was amended at the hearing to read as follows: ... on or about January 26, 1970 near the intersec- tion of Third Street and 18th in San Francisco, California, Respondent, by Cardinale, threatened bodily harm to an employee of Viking which threat became known to Viking employees immediately thereafter... . Babcock testified as follows with respect to this allegation: On January 26, 1970, while he was driving his truck in San Francisco and while stopped for a red traffic light, he heard Cardinale, a union organizer, who appeared unseen and was standing alongside the driver's side of his truck, yell to another man who was standing on the other side of the street: "Hey, Frank, here's our old buddies from Viking." Babcock then related the vilest of obscenities which Cardinale called him and he testified that Cardinale challenged Babcock to get out of his truck, threatening to assault him, if he did. Babcock also testified that Cardinale said to him: "One of these ... mornings [you are ] going to get in [your] truck, and it was going to go sky high." At this point, the traffic light changed and Babcock drove on. When Babcock was examined by company counsel, he described Cardinale's threat as follows: "One of these .. . mornings you're going to get in your truck, and you and your . . . driver buddies are gonna start your trucks and they're going to go sky high." James Linnehan, who was subpenaed by the General Counsel, is employed as a receiving clerk for Loretz and Company, freight forwarders for various companies and custom brokers. He corroborated Babcock's testimony. See above. Linnehan testified as follows: On September 25, a Viking Delivery Service truck drove into Loretz's ware- house area. As Linnehan walked toward Babcock, he saw a man whom he identified as Montano standing alongside the Viking truck, wearing a "banner" draped over his shoulder on which appeared the word "Picket." Another man whom he was unable to identify was carrying a picket sign that he was unable to read which he described as "a cardboard sign that had the handle nailed to it." Linnehan's testimony continues that he asked Montano "What's going on," to which Montano replied: "If you guys keep letting Viking come in here, we'll be picketing you next." Richard Bangham, president of Viking Delivery Service, Inc., testified with respect to a physical assault which he alleges John Cardinale, a union organizer, committed upon him. On September 30, about 1:30 p.m., Bangham drove his personal car to the premises of the Flying Tigers Air Freight Terminal at the San Francisco Airport. He had been going to the airport daily to watch and observe their trucks because, "We had been having several instances during the past week of problems with Teamsters Local 85, and I had been going up to the airport almost daily to watch our trucks and observe our trucks and make sure there was no further problems. That was what I was doing on that date." He went on to state that he was at the airport on September 25 because one of their trucks was there that day to deliver freight and their trucks while at the airport the past week had been having "an unusual amount of flat 5 This is an unmistakable reference to the dispatcher 's apprehension that if he were to do business with Viking, his Union would fine him a day's wages. 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tires." As he sat in his car, about 40 to 60 feet away from the Viking truck, he observed four to six pickets surrounding the truck, a few of whom he recognized as belonging to the Respondent Union, but only a "couple" had picket signs. The picket signs, testified Bangham, had written on them "something to the effect that Viking had substandard wages. It did say Viking but it was not very prominent [at] any distance at all. It had the word Viking written in crayon, or pencil or grease pen... . As he was sitting in his car, he recognized two of the pickets as being John Cardinale and Henry Montano. Bangham knew Cardinale, he testified, because he had had an encounter with him about 2 years before when Bangham was making a delivery to Airborne Freight. Cardinale had followed in his car Bangham's truck to the Airport and told him that he could not make deliveries to Airborne because Viking was nonunion. Bangham then identified himself as a part owner of Viking and Cardinale told Bangham he could make deliveries "but none of my drivers could." Bangham's testimony continues as follows: "I'd been there for about two or three minutes and John Cardinale removed a knife from his pocket and started picking his fingernails and looking up at me.. . . He just looked at me and looked at me ..." At this time, Cardinale was 40 to 50 feet away from Bangham. "He had a [picket] sign previously [but] he handed it to somebody else and started picking his fingernails." The knife he held, testified Bangham, was about 5 inches long. Bangham's testimony reads as follows: He kept looking at me. After a little bit, he put the knife in his pocket and walked up to my car and asked .. . what I was doing there. I told him I was sitting there observing our trucks, just watching. . . . He asked me to move on. There was no reason for me to be there and I believe he asked me, I think, it was right at this time he asked me if I saw anything wrong and I said, no, nothing obvious at this point, and he told me to move on and I told him I had a right to be there. I was on Flying Tigers' property. First, I believe he asked me if I had ever felt a fist in my face. I said I didn't feel that was necessary, and then he asked me if I had a gun in the car and I answered no, I wasn't foolish; I didn't carry weapons around in my car. He told me to move on again and then he walked back to the group. I think he said that they would become antagonistic if I remained in the area. s s s s I just said I had a right to sit there. Roughly three, four, five minutes later he came back to my car again. I stayed parked there. Another gentleman, I can't remember the name of, he was carrying a picket sign. He walked around the right-hand side of my car. John Cardinale pulled the knife out of his pocket and handed it to one of the pickets, I'm not sure which one, one of the other gentlemen standing in the group.... Then [Cardinale ] walked back to my car and asked me again if I had a gun and if-. Again, I said no, I don't and he-he asked if I was going to move and I said no, I was 6 Andrade testified Local 85 had picketed PAD until May 1, when the Company signed a contract with the Union. When he was asked if PAD observing [our] trucks and he invited me out of the car ... he asked me to move on or he told me that he was getting upset and then he yanked the car door open and grabbed me by the lapels of my suit ... and started to pull me out of the car. My feet didn't come out all the way, my feet were underneath me, I had a Mustang and your feet are stretched out in front of you and he got me halfway out and let go and I fell on my left side and elbow and from about just above feet level, but mainly I caught all my own weight on my own level.. . . [I fell ] on to the pavement. I got up off the ground and stood by the door and he invited me to take a swing at him and I told him to cool down. I was standing by the open door by my car seat with the door open, and he was standing behind the open door. He got mad and threw the door shut at me which I caught. I got back in my car and sat there for a while, and he turned around and walked back towards the pickets. Bangham's clothes were torn and later that evening he testified: "I went in for X-rays . . . and a doctor prescribed a pain reliever, because my arm had stiffened up." Adam Andrade, who has been business representative for 11 years of Teamsters Local 85, the Respondent Union, stated that the Union's geographical area encompasses San Francisco and San Mateo Counties but it has no authority to organize in Santa Clara County where Viking Delivery Service has its offices, garage, and freight terminal. He testified that on May 1, 1969, his Union had no "dispute" with Viking but did have a "problem" with Viking, which was nonunion, due to their picking up and delivering freight in Local 85's geographical area. Under the International's constitution, continued Andrade, "no outside local can go into another sister local's area, and make a pickup in their jurisdiction, and also deliver in that jurisdiction, and we found this to be what Viking Truck Lines was doing." Moreover, Andrade stated, Local 85, can only organize the employees of companies which garage their trucks within the Respondent Union's geographical or territorial jurisdiction. It is undisputed that Local 287 of the Teamsters, a sister union of the Respondent Local 85, has exclusive jurisdic- tion for organizational purposes of Viking's truckdrivers. It stands uncontradicted also that Local 287 picketed Viking's terminal in Santa Clara County for about a week after the Dow Jones May 1 incident and again for a month the following September. Andrade's testimony reads as follows: About 6 p.m., on May 1, Andrade, Montano, and Rex Smith met in South San Francisco and went to the Peninsula Air Delivery Service, herein referred to as PAD, located in San Carlos. They met with Ken Matson, an official of PAD, for the purpose of executing a collective-bargaining agreement with PAD.6 After the parties had signed the collective- bargaining agreement, Matson, who formerly worked for Viking, asked Andrade to see what he could do about organizing Viking's employees and getting Viking to sign a contract with the Union. Matson, according to Andrade, said: "Now that we are a member of Local 85, I am going to tell you about Viking Truck Lines" and Matson proceeded signed up because of being picketed, Andrade answered: "I assume so." TEAMSTERS, LOCAL 85 469 to tell Andrade where Viking's customers were located with the hope that Andrade would unionize Viking.? Andrade explained this was not possible as Viking was within the territorial jurisdiction of Local 287 of the Teamsters, a sister Union. Andrade's testimony continued that Local 287 was then picketing Viking's freight terminal in Santa Clara County and he assured Matson, PAD's official, that he would talk to Local 287's officers with a view of enlisting their cooperation. After leaving PAD's terminal, Andrade, accompanied by Montano and Smith, arrived at the Dow Jones Palo Alto plant between 7:15 and 7:30 p.m. When Andrade was asked on cross-examination whether it was his intention originally when he left South San Francisco to go to Dow Jones, he answered equivocally, argued with company counsel, and resorted to purposeful obscurity, and finally replied, "On,the way back from our initial trip, we turned around and says, `while we're here, lets go over to Dow Jones and see if there's any Viking trucks in there.' " At another point in his testimony, Andrade said that on their way back to San Francisco after Matson, on behalf of PAD, signed the contract, he made a spur-of-the moment decision to stop at Dow Jones. When they drove into the Dow Jones' yard behind the plant, where the loading dock is located, and which is not visible from the street, they saw an Airborne truck being loaded. Andrade's testimony continues as follows: 20 or 30 minutes after they arrived at Dow Jones, a Viking truck drove up to the loading platform. Montano then placed a picket sash over his shoulder and pinned it onto his lapel and stood 7 to 10 feet from the Viking truck. See Respondent's Exhibit 1. When Carl Jensen, who was the driver of Airborne's truck and a member of the Respondent Union, saw Montano don the picket sash, continues Andrade's testimony, Jensen "got in his truck" and drove it away from the loading ramp. It was then, states Andrade, that the union steward of the Mailer's (Typographical) Union, Whisenhaut, who represents Dow Jones' mailroom employees, came over and asked Andrade "What was going on and I told him that we had been following the Viking truck and that we were going to picket the Viking truck. I told him that we were not there to interrupt Dow Jones' operation, that all we were interested in was Viking truck lines. . . . About 2 or 3 minutes or maybe 5 minutes later Phillips came out." See supra. According to Andrade, Phillips inquired as to what was the "trouble" and "I told him . . . that we were having a problem with Viking; that we had no problem with them. And he said, well, there's nothing that we can do." Phillips, testified Andrade, asked him if it would be all right to finish loading the Airborne truck, to which Andrade replied, "There's no problem. Have him load. . . . I told Mr. Rex Smith to tell Carl Jensen [the Airborne driver] to back his truck up [to the dock] and finish loading." In answer to a leading question by union counsel, Andrade testified he did not originally order Jensen, Airborne's truckdriver, to pull his truck away from the dock when the Viking truck arrived at Dow Jones. This denial is not credited. When Andrade was asked if he told Phillips that the Airborne truck would not be loaded as long as the Viking truck was on Dow Jones' premises, Andrade equivocally and evasively answered: "I don't recall any conversation like that." Andrade testified that when the Viking truck arrived at Dow Jones, he placed a "picket sign" on his arm and he took a position on the ramp, 10 feet from the truck.8 Montano then stood in front of the Viking truck. Andrade testified as follows: Phillips told him that the newspapers were scheduled to leave by plane and Greyhound and asked Andrade what he could do and Andrade replied: "I don't know, that's your problem," to which Phillips said: "You won't lift the picket while the Viking truck is here? ... If I got Viking to leave . . . would you then pull your picket? ... and I said ... If you get those goddamn Viking trucks out of here. . . . There was a very good possibility that if Viking came back in there, and we seen it, that we would follow Viking with the pickets.... I told Mr. Phillips at no time were we picketing Dow Jones. There's no problem with them." Andrade stated that when Phillips asked him what the Union "was picketing against," he told him "there was no problem with Dow Jones... . We pulled off Hank's [Montano] banner and . . . We wrote Viking Trucking on it."9 On rebuttal, Phillips testified he never saw any writing "Viking" on Montano's shoulder sash. Bangham, president of Viking, testified that he was at Dow Jones on this occasion and the only union person he saw with a sash was Montano and it did not have "Viking" on it; all it read was "picket." When Viking's counsel asked Andrade if he didn't tell Phillips there was a possibility the Union would picket any Viking trucks that came onto Dow Jones' premises, Andrade answered: "My testimony was when Mr. Phillips asked me if a Viking truck came in Sunday, over the weekend, which there was no Saturday work, that there was a very good possibility that there might be some pickets following him, that is correct." The Viking truck then left the premises of Dow Jones and immediately thereafter Andrade, Montano, and Smith departed. Andrade testified that around May 6, he informed Danny Dodge, traffic director of Airborne Freight at its San Francisco Airport terminal, that "We were having a problem with Viking Truck Lines and . . . any time we followed Viking to [Airborne's] platform, that we were going . . . [to] picket Viking trucks. And in the interim that there was a very good possibility that if our people were on a platform while we had a picket line there, we would .. . cease working." 10 Andrade's testimony continues that Dodge said to him: "I don't want any of that . . . the minute that you put a picket sign, an informational picket sign in front of Viking, I'm going to tell them to get out of here. I'm not going to receive their freight."" Andrade went on to testify that Dodge relished the thought of settling past accounts with r Andrade testified, when examined by Charging Party's counsel, that Airborne Freight's official, Dodge, also requested him "to take action against Viking." See fn. 12. 8 Phillips credibly testified on rebuttal that he never saw Andrade wearing a "picket sash or an arm banner." 9 When Andrade used the word "banner," he had reference to the "shoulder sash" described above. 10 The reference to "our people" is the employees of Airborne who worked on its loading dock and all of whom were members of the Respondent Union. 11 This is an unmistakable reference to what Dodge proposed to do in the event the Union picketed Viking trucks delivering freight to Airborne's (Continued) 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Viking which he complained was taking business from Airborne.12 The Charging Party's counsel cleared up this ambiguity when he asked Andrade what Dodge said, in this regard, to him on May 6. Andrade's testimony reads as follows: "The Viking Truck Lines-was cutting their prices and taking some of the work away from them, and that they couldn't live with it and see what we could do about it." The evidence is overwhelmingly contrary to Andrade's denial that the Union ever instructed Airborne's receiving clerks not to receive Viking freight and, therefore, is not credited.1313 This is indicated when company counsel asked Andrade if he informed Dodge that Airborne's receiving clerks (members of Local 85), might cease working whenever Viking delivered freight to Airborne's loading dock and Andrade answered: "What I did tell him was if Viking trucks backed in there, we were going to put an informational picket line in front of Viking trucks period. ... He [Dodge] said it was a good possibility Airborne would stop working." _ When Andrade was asked by counsel for the Charging Party Company what he hoped to accomplish by picketing Viking trucks as they picked up and delivered freight, he answered: "Due to the fact that [Teamsters . Local] 287 had an informational picket line at Viking, which is a sister local, and they [Viking] were coming into our area .. . which made it an awful sign 14 that Viking was picking up in our area and delivering in our area without barning in our area.15 ... The purpose of picketing against Viking as far as Local 85 benefiting is concerned, is the fact that they were making pickups and deliveries in our area." When Andrade was asked in what way his Union's picket line was informational, he stated: "Well, it's informational to notify the public that they were nonunion and pay substandard wages, that's what an informational picket line is about, it's to notify the public, same as a newspaper, of what the Company is doing." 16 Henry Montano has been an "organizer" for Local 85, the Respondent Union, for approximately 5 years. Montano testified that he and Cardinale were following Babcock's truck on September 24, when they arrived at the Airborne Freight terminal. He began picketing Viking's truck as it backed into Airborne's receiving platform, and the sign he carried read: To the public, Viking Delivery Service pays its employees substandard wages and conditions for this area. Unfair to Local 85, Teamsters Union, San Francisco, California. Montano's testimony reads as follows: He picketed the Viking truck for approximately 3 minutes and then walked up and onto the loading platform. He saw an Airborne receiving clerk, who was a member of Local 85, working on some freight, whereupon Montano "whistled at him and airport terminal. See above. 12 Andrade's verbatim recital of his conversation with Dodge reads as follows : "I [Dodge ] have been waiting for this for a long time , for simple reason that this, we gave them an account-the account that we're talking about- . . . They turned around and they took it all from us , and you'd be doing me a favor if you turn around , and you get them to quit coming over here." See fn. 7. 13 Andrade's cynical observation was that if the Airborne employees saw fit "to walk off their jobs while we had an informational picket fine in front of Viking [trucks], I couldn't stop them, this would be up to them." held up the sign and he looked at me and waved back... . Then I walked into the office carrying my sign, back to the dispatchers office, see, he recognized me, I pointed to the sign, I turned and walked back out to the street. Again back to the truck." Montano denied that he or Cardinale pulled Babcock's arm out from underneath him as he was elevating himself onto Airborne's receiving dock causing him to fall to the ground or that they blocked Babcock's truck by driving Cardinale's station wagon in front of Viking's truck, or that he or Cardinale spit on Babcock. With respect to the Loretz and Company incident on September 26, Montano denied he told Linnehan, receiving clerk for Loretz, that if Loretz allows Viking trucks to come onto its property to transact business, "We'll picket you next." Linnehan, on rebuttal, again testified, as he did on direct, that Montano said to him: "If you guys keep letting Viking come in here, we'll be picketing you next." See above. Montano testified on direct examination that he and Cardinale were following Viking's truck when Babcock drove to Airborne's loading platform but, when he was asked by company counsel the same question, he denied it then later he reversed himself and admitted it was so. He stated that, "I've been chasing that Company [Viking] for over a year," explaining he carries five picket signs in his auto which have Viking's name upon them. John Cardinale, organizer for Respondent Local 85 for 3 years, testified that on January 26, 1970, he and his "partner" Frank Kelleher, another union organizer, by chance, accidently saw a Viking truck stop at a traffic light in San Francisco. He categorically denied that there was any conversation between him and the driver of the Viking truck; explaining he was no closer to the truckdriver than 30 feet. Cardinale stated that he "thinks I said something to Frank about, I says, there's Viking there; we're trying to organize them," but at no time did he direct any remarks, curses, obscenities, or threats against the Viking truckdri- ver. He did acknowledge, however, that his Union was attempting to organize Viking's employees and during this period of time "we picketed them a few times down at the airport," at Airborne Freight. Cardinale's testimony reads as follows: Mr. Examiner, like I say, we had this organizational picket line against Viking, and we followed the driver, we were parked at United Airlines, and we see the Viking truck come by. So, we follow him. When he backed into Airborne, when he got to Airborne, Mr. Montano and myself got out with our organizational picket signs and we picketed the truck. While we were there, somebody from management which I don't know who it was, the name or anything, I could find out, came 14 It seems this is an error on the part of the reporter and that the phrase "an awful sign" should read "unlawful." ]s The word "barning" as explained by Andrade means that Viking did not garage any of its trucks within Respondent Local 85's jurisdictional area. The record fails to reveal that Viking was picking up freight in Respondent's geographical area and delivering that same freight within Respondent's geographical area. 16 The loading area at Dow Jones which Respondent picketed when Viking's truck was there on May I is not visible from the public street on which the Dow Jones plant is located, nor can the entranceway to their property be seen from the dock area. TEAMSTERS, LOCAL 85 down and wanted to talk to one of the organizers, find out what the problem was with Viking. Mr. Montano went up on the dock and he talked to somebody from management there, and I stayed out in front of the truck at the while, the whole time, and when the truck pulled out, we followed him and we got back on the Bayshore and we headed for the Bayshore, and then we came back into the airport. Cardinale admitted he drove a Ford green station wagon but he denied that he used his auto to block the Viking truck. Cardinale then related an incident which occurred at the American Airlines Freight terminal at the San Francisco Airport on September 25. He testified that they followed a Viking truck onto American Airlines' premises and "We put our organizational picket line upon them" until he and his associates were requested by American Airlines to leave, which they did. "And when the Viking truck got through unloading, and he left, we took our picket lines down." Cardinale denied the Viking truck was prevented from leaving American Airlines by blocking its means of egress. See above. Cardinale concluded his testimony by giving his version of the alleged assault on Bangham, president of Viking Delivery Service, on September 30, at the Flying Tigers Freight Terminal. His testimony reads in pertinent part as follows: Well, the police department down there, we wanted to put up an organizational picket line at the airport. We're supposed to get a letter into them and explain what we're picketing, and why, and so forth and so on. The day Mr. Bangham came up we were picketing a Viking truck and I thought it was-I thought he might be one of the plainclothesmen from the police department in the airport. s s s s So, he drove in the car, and he parked there, so we continued with our picketing, and he set there for about 15, maybe 15 or 20 minutes went by, and by that time I thought to myself, well, it's probably an inspector from the airport police department. So, naturally, we have to try and get along with these people so I approached the car, and I wanted to-I walked up to Mr. Bangham and I says, "Can I help you out in any way? Is there any problem?" and if you'll excuse my language, ma'am, he says, "Get away from me, you fat bastard." Well, with this, I kind of lost my temper for a second and I reached in and I put my hand on his shoulder, and then I got my cool back and I turned around and walked away from him. So, we continued picketing the Viking truck. Mr. Bangham stayed there through the whole procedures and when the Viking truck left, Mr. Bangham left and we left. Cardinale admitted he was looking at Bangham and cleaning his fingernails with a knife about 1 inch in length, but he denies he made any gesture with the knife directed at Bangham. Cardinale admitted he placed his hand on 17 See supra 's Counsel for Viking denies this alleging that Viking's wage scale is 471 Bangham's shoulder when the latter allegedly called him a vile name, but denied he dragged him out of his car and assaulted him, although he "felt" like he wanted to, but stated Cardinale, "I got my cool back . . . and if he fell out of the car, I didn't see him." He denied the truth of Bangham's version of what occurred, but did recall that Bangham informed him just before he cursed him that he was one of the owners of Viking.17 He denies that he ever met Bangham before the above-described incident, al- though he acknowledged he had been assigned to picketing Viking trucks for 5 to 8 months. When examined by company counsel, Cardinale testified that during this period of time, he had never spoken to any of Viking's drivers about joining the Respondent Union. He admitted, however, that he heard Babcock had tom up "a union card in Local 287" of Respondent's sister union. He also corrected his testimony, in answer to a leading question by union counsel, stating that the picketing of Viking was not organizational but informational "because Viking is 287's jurisdiction, which is out of our jurisdiction in the first place." Cardinale testified that he comes picket signs in his car and whenever he sees a Viking truck, he pickets it. When he was asked what was on the picket sign, he answered: "it's an organizational picket sign. I can't state it verbatim, but roughly it states that substandard wages, and so on and so forth. What the Board calls for us to have on our signs. . . . Well, this Company is unfair; it says unfair at the top, this Company pays substandard wages, and so on and so forth, like I say." He explained the sign was printed but the words "Viking Inc." were inserted in longhand with a pencil. A. Contentions, Issues, and Credibility Resolution The basic problem here with respect to the alleged violation of Section 8(b)(4)(i) and (ii)(B) is whether to credit the General Counsel's witnesses that the Union's object was to force a cessation of business relations between Viking and Airborne Freight, Dow Jones, and Loretz; or to credit Respondent's witnesses, who denied that this was the Union's intent. Union counsel's stated reasons for picketing Viking is because it is nonunion and pays its truckdrivers substantially less in terms of economic outlay than the legitimate wages paid employees within Local 85's territorial jurisdiction who do work similar to Viking's truckdnvers.18 This, argues Respondent's counsel, has taken business away from trucking companies which have collective-bargaining agreements with Local 85. Respon- dent Union "sees this as a direct cause of diminution in its own membership class of business employers with whom it has contracts simply because of the unfair competition that is seen through its eyes." Moreover, claims Respondent, "the pressure for Local 85 to do something about this situation comes from other trucking firms . . . who insist that something be done about Viking because Viking is taking away their business." Respondent's counsel's "similar" to that called for in the Respondent Union's contracts it has with other trucking companies 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD justification for such conduct is bottomed on the "Moore Dry Dock type picketing" 19 and its right to protest Viking's unfair competition. The second facet of this proceeding concerns an alleged violation of Section 8(b)(1)(A) by Respondent involving assaults upon and threats of bodily harm to Viking personnel which is flatly denied by the Union' s witnesses. The burden of determining which side to believe rests upon the trier of the facts. This Trial Examiner has personally expatiated on this problem of resolving credibility.20 Applying the test of plausibility to the conflict of testimony in this case leads to the belief that the witnesses for the General Counsel are to be credited. They appeared to be forthright, sincere, and truthful witnesses and gave the impression of being objective and honest in their testimony. Andrade, the Union's business agent, whose testimony is a maze of contradictions, and Cardinale and Montano, union organizers, who impressed me as being averse to placing their duty to truth above self- interest, are not credited. Moreover, considerable credence has been placed upon the testimony of Phillips, Driscoll, and Linnehan, all of whom were disinterested witnesses and neither of whom stood to gain by their testimony. Furthermore, the inherent probabilities in this litigation preponderate in favor of the version testified to by the witnesses for the General Counsel. B. Discussion and Concluding Findings Section 8(b)(4) of the Act, 29 U.S.C. Section 158(b)(4), as amended by the Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. (Supp. IV, 1963) Section 158(b)(4), provides in relevant part, that it shall be an unfair labor practice for a labor organization or its agents: (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to . . . perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is: s (B) forcing or requiring any person . . . to cease doing business with any other person, or forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9... . The salient questions to be decided are whether it was a violation within the meaning of the above-quoted section of 19 Moore Dry Dock Company, 92 NLRB 547. 20 Volume 147, American Bar Association Journal, No. 6, at p. 580 (June 1961). 21 The American Airlines incident is not alleged in the complaint and the General Counsel did not argue that this occurrence was violative of the Act. 22 Local 761, International Union of Electrical, Radio & Machine Workers, v. N.L.R.B., 366 U.S. 667, 672; N. L.R.B. v . Denver Building and the Act for the Respondent labor organization to picket the premises of Dow Jones, Airborne Freight, and Loretz.21 The impact of Section 8(bX4)(i) and (ii)(B) is directed toward what is known as the secondary boycott "whose sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it." 22 Respondent had no primary labor dispute with the said employers as they were neutral and entitled to the protection afforded neutrals by Section 8(b)(4) of the Act. Simply stated, Section 8(bX4) of the Act is violated where a union engages in conduct which induces or encourages employees of secondary or neutral employers to engage in a work stoppage or to refuse in the course of their employment to perform services, or which threatens, restrains, or coerces such employers or their employees, in each case with an object of enmeshing the neutral or secondary employers in the primary dispute and thereby pressuring them to cease doing business with another person.23 It is found, therefore, that the effective picketing by the Respondent at the premises of Dow Jones, Airborne Freight, and Loretz, with the object to enmesh the employees of these neutral employers in the Union's dispute with Viking Delivery Service, was an unfair labor practice. By its picketing, Respondent attempted to bring sufficient pressure on those employers to cause them to cease to do business with Viking Delivery Service with the object of causing Viking Delivery Service to capitulate to Respondent. Accordingly, in view of the foregoing, and upon the record as a whole, it is concluded and found that the Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act by inducing and encouraging the employees of the said companies to engage in a concerted refusal to work with an object of forcing said companies to stop doing business with Viking Delivery Service, Inc.24 Respondent's reliance on the Moore Dry Dock concept is misplaced. To assist in determining whether a union's picketing at a common situs is directed at the primary employer, and therefore permissible, or at a secondary employer, and therefore violative of the statute, the Board, in Moore Dry Dock Company, 92 NLRB 547, 549, laid down certain evidentiary standards for evaluating the objective of the picketing. The standards so set forth, to warrant the inference that the picketing is primary in nature, are the following: (a) The picketing is strictly limited to times when the situs of the dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employer. The Board and the courts have uniformly held that Construction Trades Council, 341 U.S. 675, 692; International Brotherhood of Electrical Workers v. N.L.R.B., 181 F.2d 34, 37 (C.A. 2), affd. 341 U.S. 694. 23 See, e.g., S. Rept No. 105, 80th Cong., Ist Sess., 8, 22, 54; 1 Leg. Hist. (G.P.O., 1948) 414,428,460; 93 Cong. Rec. 4198, II Leg. Hist. (1947) 1106. See also N.L.R.B. v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 692. 24 Cf. Janesville Typographical Union No. 197, 173 NLRB No. 137; Nashville Building and Construction Trades Council, 164 NLRB 280. TEAMSTERS, LOCAL 85 picketing at a common situs violates Section 8(b)(4)(i) and (ii)(B) of the Act if any of the requirements of Moore Dry Dock are disregarded.25 However, its holding is not applicable in the instant situation. The ultimate question in the instant situations "is the Union's true object." Even though the picketing itself may have conformed to the Moore Dry Dock standards, that fact alone is not determinative. In the instant situations, the evidence makes it "unmistakably clear that the picketing was intended to provide economic leverage" against Viking "by enmeshing the secondary employers" with whom Viking was doing business.26 Moreover, the Board and the Court of Appeals for the Ninth Circuit have emphasized that Moore Dry Dock standards are not to be applied on an "indiscriminate per se basis." They are to be regarded merely as aids in determining whether the picketing violates the law.27 It is clear that, when a union pickets a neutral employer's premises with whom it has no dispute, it hopes even if it does not intend that all persons will honor the picket line, and that hope encompasses the employees of neutral employers who may in the course of their employment (deliverymen and the like) have to enter the secondary employer's premises. Thus, some of the business relations between the two employers would automatically cease. The union knows this will be the result. While the legend on Local 85's picket signs used might suggest "standards picketing," the evidence establishes that the legend on the picket sign was designed merely as a pretext to cloak Respondent's true objectives. It is well settled that the trier of the facts is not bound to accept such signs and statements at face value, but is entitled to consider the totality of the union's conduct. 28 It is further found that the object of such picketing was illegal which had the effect of not only inducing various individual employees of the picketed secondary employers to cease and refuse working, but also threatened and coerced them and was not exclusively for the aims which the Union professed on its picket signs 29 It is found that practically all of the acts or statements alleged in the complaint, as amended, as violations of Section 8(b)(1)(A) of the Act, did occur substantially as testified to by witnesses for the General Counsel. Under that section of the Act, it is an unfair labor practice for a union to restrain or coerce employees in the exercise of their rights to refrain from engaging in a strike or other concerted activities.30 Based on Babcock's and Bangham's credited versions of what occurred, it is found that Cardinale's and Montano's threats and assaults, restrained and coerced said employees 25 Local 761, International Union of Electrical, Radio & Machine Workers v NL.RB, 366US.667 26 Dissent in Teamsters Local 592 (Estes Express Lines), 181 NLRB No 121. 27 Electrical Workers, IBEW (New Power Wire Co), 144 NLRB 1089, N L R B v. Northern California Hodcarriers, 389 F 2d 721, 725 (C A 9). 28 N L R B v. Knitgoods Workers Union Local 155, 403 F 2d 388, 390-391 (CA 2) 29 Teamsters, Local Union 563, 179 NLRB No 109. 30 ILWU, CIO (Sunset Line and Twine Co), 79 NLRB 1487 31 N L R B v Local 140, United Furniture Workers, 233 F 2d 539 (C A 2) 32 The courts have uniformly enforced Board orders without limitations to time as a court of equity retains its power to modify a continuing decree US v Swift & Co., 286 U.S. 106, System Federation No 91, Railways 473 in violation of Section 8(b)(l)(A) of the Act. This conduct of Respondent's agents, Cardinale and Montano, set out in detail above, which was known to Viking's other employees shortly after these incidents happened, clearly demonstrat- ed to the Company's employees the risks they were running in exercising their right to refrain from giving support to the Respondent Union, a right expressly protected by Section 7, and, thus, restrained and coerced them in violation of Section 8(b)(1)(A) of the Act.31 III. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it is recommended that the Respondent cease and desist from engaging in such unlawful activities without limitations as to time.32 Before doing so, however, the General Counsel's recommendations in this regard shall be considered. He contends that numerous instances of Respondent's conduct in the past establishes its penchant for violating the Act, particularly, its secondary boycott provisions. There have been introduced in evidence Labor Board cases in which Local 85 has been the Respondent.33 These include seven cases of which four cases involved Board orders, three formal settlements, and an adjudication and order of civil contempt entered by the U. S. District Court for Northern California.34 The General Counsel, who describes the Respondent Union as "an inveterate violator of the Act," states that "only the broadest remedial order against Respondent Local 85 will effectuate the policies of the Act." Accordingly, he requests a broad cease-and-desist order enjoining the Respondent from engaging in violative conduct similar to that found herein against Viking and also against any other employer with whom Viking does business. It should be noted that in the instant proceedings, the U. S. District Court for the Northern District of California in a 10(1) proceeding issued a temporary injunction on October 28, 1969, a copy of which is attached to this Decision. Nevertheless, Respondent by its agent, Cardinale, on January 26, 1970,4 months later, threatened bodily harm to Babcock, a Viking truckdnver. See supra. Official notice is hereby taken of the cases cited by the General Counsel in which Respondent was involved, which, in turn, lead to the finding that Local 85 has a proclivity for engaging in illegal picketing, threats of violence, and actual violence. Employees Dept AFL-CIO v Wright, 364 U.S 642 Such a decree, unless modified, has unlimited future effect. The Board has the same power to frame cease-and-desist orders as the courts do to issue injunctions in other litigations May Dept Store Co. v N LR B, 326 U.S. 376, 390-392. The Respondent is fully protected, for "If defendants enter upon transactions which raise doubts as to the applicability of the injunction , they may petition the Court granting it for a modification or construction of the order " Regal Knitwear Co v N L.R B, 324 U S. 9,15; cf. N L.R B v. Bush Hog Co, 405 F 2d 755, 759 (C A 5) 33 GC Exhs. 3 and 4 34 Although the General Counsel represented at the hearing that he would submit all cases in which Local 85 was ever a respondent before the Board and Federal courts, it appears that the exhibits he introduced into evidence cover the period only from 1966 to February 1970. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is, of course, well settled that the Board has broad power to determine the proper scope of orders 35 Included in this power is the authority to tailor the remedy to fit the circumstances.36 The Board's authority to issue orders to remedy unfair labor practices is derived from Section 10(c) of the Act. The latitude accorded the Board in framing the affirmative part of the order issued under Section 10(c) has been considered broader. The test laid down in the Act is whether the affirmative action ordered by the Board "will effectuate the policies of the Act," and the courts ordinarily have not been inclined to disturb the Board's judgment as to the proper remedy to provide in a particular case. The outside limits of the Board's authority in this area were indicated by the Supreme Court in a decision handed down in 1938.37 The Board's authority, the Court said, does not go so far as to confer a punitive jurisdiction enabling it to inflict upon the respondent any penalty it may choose because he has engaged in unfair labor practices, even though it may be of the opinion that the law's policies might be effectuated by such an order. Within these limits, however, the Supreme Court has recognized a broad grant of discretion to the Board in the selection of affirmative remedies for unfair labor practices. In one case, the Court stated that it is important for the Board to take into "fair account . . . every socially desirable factor . . . to attain just results in diverse, complicated situations." 38 In 1944, the Supreme Court had occasion to endorse one of its prior decisions which held that an administrative board may "express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions." It added that it was as true of the Labor Board that "the Board was created for the purpose of using its judgment and its knowledge." So in fashioning remedies to effectuate the purposes of the Act, the Court concluded, the Board "may utilize understanding and insight which it gains from cumulative experience," even though its conclusions can be neither supported nor validated objectively by the particular record before it.39 With such uncircumscribed powers and discretion to fashion remedies, which would in some rational manner accomplish effectuation of the statutory policies and purposes, with only one limitation-it must not be punitive-it would appear that operative remedies might be tailored to not only fit the circumstances but also to deter flagrant violators who flout the provisions of the Act. Thus, the statute's policies would be effectuated by eradicating the resultant effects of a respondent's unfair labor practices?° In UA W v. Russel, 356 U.S. 634, the Supreme Court held that the Taft-Hartley Act of 1947 did not deprive an Alabama State Court of jurisdiction by an employee to recover compensatory and punitive damages from a union for preventing him from engaging in his employment by means of unlawful picketing in furtherance of a strike, even if the union's conduct constituted an unfair labor practice 35 May Dept. Stores d/b/a Famous-Barr Co. v. N.L.R.B., 326 U.S. 376, cf. Progressive Mine Workers Union v. N.LR.B., 187 F.2d 298 (C.A. 7); Hinson v. N.L.R.B., 428 F.2d 133 (C.A. 8). 36 Coats & Clark, Inc., 113 NLRB 237; Duro Test Corp., 81 NLRB 976; Kallaher & Mee, 84 NLRB 410; N.LR.B. v. Reed, 206 F.2d 184 (C.A. 9). 34 Consolidated Edison Co. v. N.LR.B., 305 U.S. 197. See also Republic Steel Corp. v. N.L.R.B., 311 U.S, 7; Heinz Co. v. N.LR.B., 311 U.S. 514. under the National Labor Relations Act and the Board has jurisdiction to award backpay to the employee because the employee's right in a state court is not preempted by the National Labor Relations Act. In construing Section 10(c) of the Act which "gives limited authority to the Board to award back pay to employees," the Supreme Court stated: If an award of damages by a state court for conduct such as is involved in the present case is not otherwise prohibited by the Federal Acts, it certainly is not prohibited by the provisions of § 10(c). This section is far from being an express grant of exclusive jurisdiction superseding common-law actions, by either an employ- er or an employee, to recover damages caused by the tortious conduct of a union. To make an award, the Board must first be convinced that the award would "effectuate the policies" of the Act. . . . The power to order affirmative relief under § 10(c) is merely incidental to the primary purpose of Congress to stop and to prevent unfair labor practices. Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct. In Virginia Electric Co. v. Labor Board 319 U.S. 533, 543, in speaking of the Board's power to grant affirmative relief, we said: The instant reimbursement order [which directs reimbursement by an employer of dues checked off for a dominated union] is not a redress for a private wrong. Like a back pay order, it does restore to the employees in some measure what was taken from them because of the Company's unfair labor practices. In this, both these types of monetary awards somewhat resemble compen- sation for private injury, but it must be constantly remembered that both are remedies created by statute-the one explicitly and the other implicitly in the concept of effectuation of the policies of the Act-which are designed to aid in achieving the elimination of industrial conflict. They vindicate public, not private, rights. For this reason it is erroneous to characterize this reimbursement order as penal or as the adjudication of a mass tort. It is equally wrong to fetter the Board's discretion by compelling it to observe conventional common law or chancery principles in fashioning such an order, or to force it to inquire into the amount of damages actually sustained. Whether and to what extent such matters should be considered is a complex problem for the Board to decide in the light of its administrative experience and knowledge. Congress intended by the enactment of the Taft-Hartley Act of 1947 to stop , inter alia, illegal picketing and violence. It is obvious that the Board's "broad" cease-and-desist orders in previous cases have failed to discourage Local 85, this Respondent, as evidenced by its repeated violations and its adamantly continuing to flout the law by employing illegal tactics in effectuating its organizational and promotional objectives. However, the General Counsel has 38 Phelps Dodge Corp. v. N.LR.B., 313 U.S. 177. See Virginia Electric & Power Co. v. N.LR.B., 319 U.S. 533; N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240. 39 N.LR.B. v. Seven-up Bottling Co., 344 U.S. 344. 40 See 51 Columbia Law Review at p. 515, and Eichleay Corp. v. N.LR.B., 206 F.2d 799, 804-806 (C.A. 3); Monolith Cement Co., 84 NLRB 358. TEAMSTERS, LOCAL 85 475 not seen fit to suggest any remedy other than the prosaic and orthodox "broad" remedy extant for over 20 years which merely forbids the Union from engaging in secondary activity involving not only the employers herein, but all other neutral employers and their employees. Such initiative leading to the formulation of effective remedial orders to deter future violations must, in the first instance, emanate from the General Counsel. He has offered no guidance in his brief in this regard. The brief filed by him fails to recommend any remedy other than those in effect for many years. The history of coercion, violence, and illegal tactics on Respondent's part would seem to indicate that present remedies are ineffective or defective to deter and prevent this Respondent from repeatedly committing unfair labor practices. The Union's cavalier attitude toward present remedies indicates a reappraisal is warranted to determine the powers of deterrence provided in the existing law. The present remedy of a cease-and-desist order enjoining illegal acts on a set of facts long extinct and long after the illegal conduct has occurred would appear to be a meaningless gesture which does nothing to effectuate the policies of the Act. Stare decisis requires the trier of these facts to employ existing remedies as precedent is to be followed and not departed from in order to keep the scale of justice even and steady. Innovation in this context is more properly within the domain of a higher policymaking authority which has the available facilities and means to devise a meaningly effective remedy.41 Supreme Court stated in N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 765-766 (1969): "Adjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies which are applied and announced therein. . . . They generally provide a guide to action that the agency may be expected to take in future cases." It is believed that the Union's unfair labor practices found above are potentially related to similar unfair labor practices and that danger of future commissions of such unlawful acts may be anticipated from its past conduct. The preventative purposes of the Act will be thwarted unless the Order is coextensive with the threat. Accordingly, it is recommended that a broad cease-and-desist order shall issue against the Respondent Union, encompassing all employers and their employees within its territorial jurisdiction over whom the Board would assert jurisdiction. [Recommended Order omitted from publication.] 41 See Progressive Mine Workers v. N.L.R.B., 187 F.2d 298 (C.A. 7), enfd. in part 89 NLRB 1490; Taxicab Drivers Union Local 777, 145 NLRB 197, 205-206; and Midas International Corp., 150 NLRB 486, 492-493. APPENDIX B UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ROY 0. HOFFMAN, Regional Director of the Twentieth Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, ) Civil No. C-69-95R.F.P. V. BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL NO. 85, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Respondent. This cause came on to be heard upon the verified petition of Roy O. Hoffman, Regional Director of the Twentieth Region of the National Labor Relations Board, for and on behalf of said Board, for a temporary injunction pursuant to Section 10(1) of the National Labor Relations Act, as amended [29 U.S.C. § 160 (1)], pending the final disposition of the matter here involved now pending before said Board, and upon the issuance or an order to show cause why injunctive relief should not be granted as prayed in said petition. Respondent filed an answer to said petition. All parties were afforded full opportunity to be heard thereon, and the Court, upon consideration of the pleadings, affidavits, evidence, briefs and argument of counsel, and the entire record in the case, has made and filed its Findings of Fact and Conclusions of Law, finding and concluding that there is reasonable cause to believe that Respondent Brotherhood of Teamsters & Auto Truck TEMPORARY INJUNCTION Drivers Local No. 85, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein called Local 85), has engaged in and is engaging in, acts and conduct in violation of Section 8(b)(4)(i) and (ii), subparagraph (B) of said Act [29 U.S.C. § 158(b)(4)(i) and (ii)(B)], affecting commerce within the meaning of Section 2, subsections (6) and (7) of said Act [29 U.S.C. § 152 (6) and (7)], and that such acts and conduct will likely be repeated or continued unless enjoined. Now, therefore, upon the entire record, it is ORDERED, ADJUDGED AND DECREED that, pending the final disposition of the matter here involved pending before the National Labor Relations Board, Respondent Local 85, its officers, representatives, agents, servants, employees, attorneys, and all members, persons and labor organizations acting in concert or participation 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with it, be and they hereby are, enjoined and restrained from: (a) Picketing at or in the vicinity of the entrances to the plant of the Dow Jones Company (herein called Dow Jones), at Palo Alto, California, as a signal or in a manner so as to induce or encourage employees of Dow Jones, Airborne Freight Corporation (herein called Airborne) or other employers (other than Viking Delivery Service, Inc., herein called Viking), to refuse to pick up, deliver, transport, or handle any goods or to perform services for their respective employers at Dow Jones' said plant; or instructing, soliciting or appealing to truckdrivers em- ployed by motor carriers (other than Viking) or employees employed by other employers, to honor or respect such picket line ; or maintaining in effect any such instructions or appeals ; or halting or obstructing passage of such trucks at Dow Jones' said plant; or (b) Picketing at or in the vicinity of the entrances to the terminal warehouse of Airborne at the San Francisco airport, as a signal or in a manner so as to induce or encourage employees of Airborne, or motor carriers or other employers (other than Viking) to refuse to pick up, deliver, transport or handle any goods or to perform services for their respective employers at Airborne's said terminal warehouse ; or instructing, soliciting or appealing to truckdrivers employed by motor carriers (other than Viking) or employees employed by other employers, to honor or respect such picket line, or maintaining in effect any such instructions or appeals; or (c) Picketing or threatening to picket at or in the vicinity of the entrances to the terminal warehouse of Loretz and Co. (herein Loretz) at Harbor Way, South San Francisco, California, as a signal or in a manner so as to induce or encourage employees of Loretz or of motor carriers or other employers (other than Viking) to refuse to pick up, deliver, transport, or handle any goods or to perform services for their respective employers at Loretz' said plant; or instructing, soliciting or appealing to truckdrivers em- ployed by motor carriers (other than Viking) or employees employed by other employers to honor or respect such picket line, or maintaining in effect any such instructions or appeals; or (d) Engaging in, or by picketing, orders, directions, solicitation, requests or appeals, howsoever given, made or imparted, or by any like or related acts or conduct, or by permitting any such to remain in existence or effect, or inducing or encouraging any individual employed by Dow Jones, Airborne or Loretz, or their carriers, or by any other person engaged in commerce or in an industry affecting commerce (other than Viking), to engage in, a strike, slow- down, or refusal in the course of his employment to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials or commodities, or to perform any service, or sanctioning, supporting or promot- ing any such strike or refusal ; or in any similar manner or by any other means threatening, coercing or restraining Dow Jones, Airborne, or Loretz, or their carriers, or any other person engaged in commerce or in an industry affecting commerce (other than Viking), where in either case an object thereof is to force or require Dow Jones, Airborne or Loretz to cease doing business with Viking, or where an object thereof is to force or require Airborne, or any motor carrier, suppliers or other person with whom Dow Jones regularly or customarily does business, to cease using, selling, handling, transporting or otherwise dealing in the products of, or to cease doing business with , Dow Jones. Done at San Francisco, California, this 28 day of October, 1969. Robert F. Peckham United States District Judge