Truck Drivers Local 100, Treamsters

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Truck Drivers, Chauffeurs and Helpers Local Union No. 100. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Norfolk and Western Railway Company. Case 9-CC-502 January 6, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 4, 1970, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respondent (herein also called the Union) had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel filed limited exceptions to the Trial Examin- er's Decision with a brief in support thereof, and the Charging Party filed a brief in support of the Trial Examiner's Decision. 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 the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner to the extent consistent herewith.2 This case presents a situation wherein the primary employer (Petty Motor Freight, Inc., herein called Petty), whose sole place of business was on the premises of a secondary employer (Norfolk and Western Railway Company, herein called the Rail- road), decided to go out of business upon receiving the Union's strike notice, but failed to give formal notice of its decision to the Union. When the scheduled primary picketing at the common situs began on August 25, 1969,3 Petty was no longer performing any work anywhere, although its equip- ' The Respondent has excepted to credibility resolutions made by the Trial Examiner Since the credibility findings as to the underlying sequence of events are not contrary to the clear preponderance of all the relevant evidence, no basis exists for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) 2 The Respondent's request for oral argument is hereby denied as, in ment remained at the situs, unused, during the strike and for several months thereafter. The strike ended on August 27 after the Union verified that Petty had filed a bankruptcy petition on the preceding day and when Petty's "successor" at the situs (Turner) agreed to hire the former Petty employees and bargain with the Union. The Trial Examiner found that the Union's picketing in these circumstances failed to meet the Moore Dry Dock4 requirements for common situs picketing and therefore violated Section 8(b)(4)(B) of the Act. We disagree and find, for the reasons below, that the General Counsel has failed to establish by the requisite preponderance of all relevant evidence that a violation of Section 8(b)(4)(B) has been committed. From April 1967, until the events herein, Petty was engaged exclusively, under a contract with the Railroad, in performing certain trucking work in connection with the Railroad's piggyback operation. Petty's sole place of business during this period was on the Railroad's premises (the Berry Yard) where it maintained, rent free, an office and storage facilities for its truck and tractors. Also, since 1967, Petty was party to collective-bargaining agreement with the Union covering its drivers, which provided, inter alia, for employer contributions to an employee pension, health, and welfare fund. The contract further provided that, in the event of employer delinquencies in making its payments, the Union could, after giving the employer 72 hours' notice, take whatever action against the employer it deemed necessary. On August 21, 1969, when Petty was some $9,000 behind in his pension-welfare contributions, the Union gave Petty 72 hours' notice of intent to strike unless the delinquencies were paid up. That evening, after the workday, Petty orally informed Joseph Williamson, the Railroad's assistant freight agent, that it had received the Union's strike notice; that it could not financially withstand a strike; and that, therefore, it had decided to terminate its operations and go out of business. Petty confirmed this decision by letter which he personally delivered to the Railroad on Monday, August 25. In response, the Railroad sent Petty a telegram on August 25 canceling Petty's contract "effective immediately." Petty did not notify the Union of its decision to go out of business but, instead, telephoned two of his drivers on the night of August 21 and told them that he had "ceased our opinion, the record, the exceptions, and the briefs adequately present the issues and positions of the parties J Unless otherwise indicated, all dates are in 1969 ' Sailor's Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547, 549 187 NLRB No. 101 TRUCK DRIVERS LOCAL 100, TEAMSTERS 707 operations and that their money was in the mail in the form of certified checks."5 He also advised them to go to the Union to see about getting other work. The checks to which Petty referred were actually not mailed until the following day and were not received by the men until Monday, August 25, after the strike began. On Friday, August 22, the Petty drivers (Simms, Stewart, and Keaton) went to the Berry Yard where they saw another individual, later identified as Thomas Turner, doing some of the work previously performed by Petty. Turner was working alone with a rented truck. On the next day, August 23, they again went to the Yard and were asked by Turner to help him out. Simms, Stewart, and Keaton worked for several hours and were paid in cash for their services by Turner. Turner admittedly did not explain his status vis-a-vis the Railroad to the men, nor did he promise them future employment. The Union's 72- hour strike notice expired on Sunday, August 24, a nonworking day. On Monday morning, August 25, Simms and Stewart went to the union hall and told Business Representative Quigley about Petty's telephone calls to them on the preceding Thursday.6 They also advised Quigley that Turner was seen on Friday and Saturday doing piggyback work previously done by Petty. Quigley, after making some inquiries as to the identity of Turner, told Simms and Stewart that Petty was to be put on strike for his pension-welfare delinquencies. The men were given picket signs identifying Petty as the object of the strike, and they returned to the Berry Yard where they commenced picketing on Laidlaw Avenue, the sole truck and employee entrance to the Yard and to Petty's place of business. The strike lasted 3 days. Turner's employees refused to cross the picket line and neither Turner nor anyone else attempted to move trailers into or out of the Yard until Wednesday, August 27, when Quigley gave Turner special permission to deliver a perishable load. On the afternoon of August 25, when the Railroad's second-shift employees arrived and saw the picket line, they asked the pickets and Business Agent Barnes what the strike was about and whether it was all right for them to cross the picket line. Barnes and the pickets replied that the dispute was with Petty, not with the Railroad, and that they could cross the line provided that they did not do any of "the truckers' work." The yardmen, however, remained reluctant to cross the picket line and, instead, returned to their parked cars. At this time, Assistant Yardmaster Trivett arrived at the gate and asked Barnes if the yardmen might pass through the gate, to which Barnes replied that, since "we have no strike against the Railroad, you can cross the picket line, but you do not do any of the truckers' work." Trivett then talked to the Railroad employees who proceeded through the gate but did not do any piggyback work. From the time that the strike began on August 25, to the time that it ended on August 27, Quigley received numerous telephone calls from representatives of the Railroad, Turner, and other trucking companies who were seeking to take over the work previously performed by Petty. The gist of these conversations was (1) to convince Quigley that Petty had definitely and permanently gone out of business and (2) that the piggyback work would be awarded to Turner or some other trucking concern and, therefore, the Union should try to work out an accord with Turner or whoever else might be awarded the piggy back contract. In the course of these conversations ( as well as in conversations between the strikers and railroad officials) railroad officials and Turner's attorney assured the Union that, if Turner were awarded the piggyback contract, he would hire the former Petty drivers. Either late on August 26 or early on August 27, Quigley verified that Petty had, in fact, filed a bankruptcy petition on August 26. At Turner's request, a meeting was held on the afternoon of August 27 between Turner, representatives of the Union, and drivers Simms and Keaton to discuss the possibility of negotiating a contract. Various matters were discussed pertaining to Turner's efforts to win the piggyback contract, the manner in which he proposed to operate at the Yard, and the rate he could afford to pay. Quigley wanted Turner to hire the three Petty drivers, without loss of seniority, and to sign the Union's master contract. Turner agreed to hire the drivers, without seniority, but suggested they become owner-operators. He did not agree to the Union's master contract. The meeting, which had been requested by Turner, ended without agreement except that Turner's lawyer agreed to draft a proposed contract which Quigley could submit for approval to the strikers. Later, on the evening of August 27, Quigley telephoned Union President Farmer and they decided to end the strike, agreeing that there was "no use picketing where the man has gone out of business." After the picket line was removed, about 9 p.m., Joseph Williamson, the Railroad' s assistant freight agent, told the strikers to report to work the next day as employees of Turner. Turner did not sign a 5 During past financial difficulties Petty also had threatened to go out August 25, about Petty 's telephone calls of August 21, Thus, Simms of business , but did not do so testified that he telephoned Quigley "within a day or two" after Petty's call 6 It appears that Quigley was informed sometime before Monday, and related what Petty had said 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract with the Union. Some 3 months later, he ceased operations. Based on the foregoing, we are not pursuaded that a violation of Section 8(b)(4) was committed. The Union clearly had a legitimate primary dispute with Petty concerning the latter's pension and welfare delinquencies when it commenced picketing on the morning of August 25. The Berry Yard was Petty's sole place of business since 1967 and it was an appropriate place for the Union to advertise its dispute with Petty. That this was the Union's object is not negated by the fact that Petty may have discontinued operations before the picketing , previ- ously decided upon, commenced. Petty never notified the Union of this fact . Appearances at the site did not disclose it . And though Petty told two employees of his decision to terminate operations it is understanda- ble that the Union was not diverted from its picketing plan, especially in view of the fact that Petty had frequently in the past made claims of financial troubles and threats to employees to cease operations. After the Union verified the fact that Petty had filed a petition in bankruptcy, the picketing stopped. In the attendant circumstances , we cannot attribute any illegal purpose to the picketing from the fact that it did not terminate abruptly when Quigley learned of the bankruptcy petition. Upon the entire record, we are not persuaded by the General Counsel's case that the Respondent's picket- ing violated the Act as alleged . Accordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY , Trial Examiner : The issues in this case, which was tried before me at Cincinnati , Ohio, on February 10 and 11, 1970, with all parties participating fully in the trial through counsel , are whether the above-named Union, Respondent herein, in August 1969, picketed a facility of Norfolk and Western Railway Company (herein called the Railroad) in Cincinnati, Ohio, with the object of causing employees of the Railroad and other employers to cease performing services for their respective employers in order to force and require the Railroad to cease doing business with Thomas Turner Transport Corporation (herein called Turner) unless and until Turner employed members of Respondent and recognized Respondent as the collective- bargaining agent of its employees , and prevent the Railroad from resuming any business relationship with Petty Motor Freight, Inc. (herein called Petty), 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). These issues arose on a complaint issued December 30, 1969, by General Counsel of the Board through the Board's Regional Director for Region 9,i and answer of Respondent admitting jurisdiction , but denying the com- mission of any unfair labor practices . At close of the trial all parties waived oral argument but written briefs filed by all have been carefully considered by me 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 I. THE EMPLOYERS AND THEIR BUSINESSES The Railroad is a Virginia corporation acting as an interstate carrier engaged in transporting by rail for its customers goods and materials among the several States, and maintaining facilities in several States , including a facility known as the Berry Yard in Cincinnati , Ohio, which is the only facility involved in this case. At all times material herein Petty was a Kentucky corporation engaged in the transportation by truck tractor of truck trailers, as an interstate carrier, with one of its facilities located until August 22, 1969 , at the Berry Yard. In the past calendar year up to August 22, 1969, Petty in course of its trucking operations in Ohio derived gross revenue in excess of $50,000 from trucking operations performed under contracts or arrangements with interstate common carriers, including the Railroad, operating between and among various States. I find that the Railroad is, and Petty at all material times herein was, an employer engaged in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and the Railroad has been and is a "person" within the meaning of Section 2( 1) of the Act. Respondent is a labor organization within the meaning of Section 2(5) of the Act, and at all material times herein Earl G. Quigley, Dallas Barnes , William O. Wilson, and Earl Mitchell have each been a business agent of Respondent and acting as its agent within the meaning of the Act. These four agents comprised the city freight division of Respon- dent, with specific jurisdiction over hauling operations at the Berry Yard and like facilities and bargaining units of employees employed therein. H. THE UNFAIR LABOR PRACTICES A. Background Events 4 At all times material herein the Railroad has been engaged in transporting for its customers by rail truck trailers loaded with freight to and from loading ramps and associated facilities at its Berry Yard . This operation is I The complaint issued after Board investigation of charges filed August 25 and 27, 1969, by the Railroad TRUCK DRIVERS LOCAL 100, TEAMSTERS 709 known as "piggy-back service." In this operation the Railroad does not own or operate any tractor trucks but from 1967 up to August 22, 1969, had a contract with Petty under which Petty furnished tractors to haul loaded trailers for customers of the Railroad to and from the Berry Yard and loading and unloading them on and off flatcars.2 In the operation of his contract Petty used as his main dispatch office an old railroad car owned by the Railroad and located within Berry Yard several hundred yards from Laidlaw Avenue, the nearest public highway, and the sole truck and employee entrance to the Yard. He parked his tractors partly in the Yard at a point far distant from his office and partly on a lot adjacent to the Yard but owned by another company. From 1967 until he quit operations on August 21, 1969, Petty had a collective-bargaining contract with Respondent covering his drivers, under which he was required to make monthly payments into the health and welfare and pension funds maintained by Respondent. In early 1969 he had financial problems, and fell behind in those payments and, after several warnings from Respondent, he was advised by Respondent on August 21, 1969, that his employees would take economic action against him on August 25 because of his defaults.3 At close of business on the 21st, Petty closed his dispatch office, removed all his records, procured certified checks for pay due his employees,4 called each on the telephone about 8 p.m., and told those he was able to reach that he had ceased operations and their final pay was being sent to them by mail; 5 he told Simms the Union was going to strike him, and he could not stand a strike financially, so he was closing down, and that Simms should go to the union hall the next morning and tell the Union Petty was closed down and filing in bankruptcy, and that Simms needed a job. Simms said he would go to the Union early on Friday. Petty parked all his tractors in an isolated spot, and left the Yard to see his attorney about filing a petition in bankruptcy, which was actually filed for his corporation on August 26, 1969, in the local United States District Court. Petty advised Carlton Williamson, freight agent of the Railroad, or his brother, Joseph, assistant freight agent at the Yard, on the night of August 21 that this was his last day of work there, as he was quitting the job because of pressures from Respondent and his creditors. Petty confirmed this action by letter to the Railroad on August 25, which the Railroad answered by telegram of that date terminating his contract. Petty never returned to the Yard until about a month later, to make arrangements to have some of his trucks removed as requested by the Railroad. On Friday, August 22, Turner made a temporary arrangement with freight agent Williamson to handle the 2 The piggyback service is handled under three plans Under plan 1, common carriers haul their own trailers to and from the Yard where the Railroad toads and unloads them on flatcars, at destination another common carrier hauls the trailer to the customer In plan 2, the Railroad provides the trailer, loading it at the start, hauling it to the flatcar, shipping it, and at destination hauling it to and unloading it for the customer Under plan 2-1/2, the Railroad furnishes the trailer, but the shipper at one end loads and hauls it to the flatcar, and at destination the customer does the hauling from the flatcar and unloading at his plant At the Berry Yard, the Railroad furnished the trailers for operations of plans 2 and 2-1/2, but hired independent trucker Petty to load and unload trailers at the flatcars and haul them to and from customers ' plants, using piggyback hauling, pending award of a formal contract by the Railroad .6 He began operations that afternoon, using one rented tractor which he drove himself. Simms and Stewart were at the Yard all day to find out who would haul the trailers, and, when Simms saw Turner doing it, he asked Joseph Williamson about it, and the latter replied Turner was handling the work because Petty was out of business and had quit the operation, that Turner had quit his job with a trucking company to do the hauling on a temporary basis until a formal contract could be worked out. That night Turner called Simms to ask if two of the former Petty drivers could help him with the work on Saturday; Simms apparently agreed, for, when Turner continued the work on August 23, he hired Simms and Stewart at $3.50 an hour on a temporary basis to help him at the loading ramps, and they worked 5 hours for him that day. He told them he would employ them at that rate until a contract was signed. On August 22 or 23, Simms reported to Business Agent Quigley at the union office that Petty had told his employees on the night of the 21st that he was going out of business and quitting the Yard hauling, and was sending the men their final checks, and that they did not work for him on Friday, but that on that day Turner was doing hauling at the Yard which indicated he was "taking over," and that the three Petty employees wanted to see if they could hold their jobs in that operation. On Sunday, August 24, Turner hired three other men as temporary employees, giving two specific orders to report at the Yard early Monday morning to hook up and drive out a load of perishable grapes to a customer. In discussing their employment, he suggested two of them should buy their own tractors and become owner-operators on the job like Turner; the other man already had his own truck.7 B. The Strike, its Nature and Effects On Monday morning, August 25, the three Petty employees met at the Yard early, discussed the fact that Petty was out of business, they had not received their last pay from him,8 and that they had no jobs, and agreed that they should seek help from their union about their "problems." Simms and Stewart went to the union office and saw Quigley. He asked if Turner was still at the Yard, and where he came from. They told him Turner was moving the trailers, and that he was a dispatcher for Spade, another city trucking outfit. Simms also told Quigley he and Stewart had worked temporarily for Turner on the job on Saturday. Quigley called Spade and learned that Turner no longer worked there. Quigley then told the two men "we got no alternative, we will just put Petty on strike." He gave them picket signs stating Respondent was on strike against his own tractors, drivers, and helpers 3 This was in accordance with the grievance procedure in its contract. 4 Carl E Simms, Harold Stewart, and Andrew I Keaton 5 He did not reach Keaton who was out of town, but left word with a relative 6 Three or four truckdrivers besides Turner were apparently bidding for the job after August 21 r The above facts are found from a composite of credible testimony of Joseph Williamson, Petty, Turner, Simms, and Stewart . Testimony of any of them at variance therewith is not credited " Simms got his certified check in the mail later that day, and presumably the other two got theirs at the same time 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petty, and sent the two back to the Yard where they and Keaton began picketing with the signs at the sole truck and employee entrance to the Yard mentioned above. Turner's new employees were already at the Yard, preparing to haul out the trailer of grapes, but when they saw the pickets and signs, they called Turner, who came to the Yard. His men refused to take the load of grapes through the picket line, so he called Quigley about 9:30 a.m., saying he had the load to deliver but could not unless the picket line was removed, as his drivers would not cross it. Quigley said the line "would not go down." Turner reminded him the strike was against Petty, not against him, and Quigley said he knew that. Turner then told Joseph Williamson about the problem, when the latter came to work. Turner remained at the Yard during the day, but neither he nor his employees moved any trailers through the picket line. When Joseph Williamson came to work that morning, he asked Simms what it was all about, and Simms replied they were on strike against Petty because of their grievances against him, explaining that Petty was behind in his payments to the health and welfare and pension funds required by his contract with Respondent. Simms indicated he was the spokesman for the pickets. Williamson asked who was in charge of it, and Simms said Quigley was. Simms gave him Quigley's telephone number, and William- son telephoned Quigley and asked the reason for the picketing, and if the strike was official. Quigley said it was official, that "we" are on strike against Petty. Williamson said Quigley knew Petty was no longer working for N & W, and Quigley replied, "Yes, but his men reported there, he maintains an office there, and his equipment is there, so we are striking the place of employment." Williamson also told him Turner or another man would take over the hauling contract. Quigley replied that he would talk to anyone who wanted to call him about it. On Monday Joseph Williamson had several talks with the pickets, particularly Simms, about the strike, Petty, and Turner. As Turner had told him in the morning about his inability to haul out the load of grapes, Williamson in the afternoon asked Simms if either he or Turner could drive the trailer out of the yard. Simms said he did not know, but would call Quigley and find out. With Williamson's permission, Simms talked to Quigley from the yard office telephone, and then told Williamson, "I am sorry but they won't let the grapes go, he said nothing moves in or out of the yard." Williamson then notified the consignee of the grapes about the reason for delay in delivery, promising to get them to him as soon as possible. Shortly before 2:30 p.m., on the 25th, when the evening shift of five Yard employees of the Railroad came to the Yard to report for work,9 they asked the pickets and Business Agent Dallas Barnes if it was all right for them to cross the picket line. The pickets and Barnes told them the strike was against Petty, and it was all right, provided they did not do any of the piggyback, or "our," work. Two of the yardmen who asked these questions were local representa- tives of the Trammens and Firemens Unions respectively. All the yardmen then sat in their cars on Laidlaw Avenue, and did not enter the Yard. Shortly after William L. Trivett, 9 This shift consisted of a conductor, two brakemen, an engineer, and a fireman, all of whom were members of either the Brotherhood of Trainmen assistant yardmaster for the Railroad, came to the picket line and asked the pickets and Barnes if it was all right for the yardmen to cross the picket line and go to work. Barnes told him it was all right, as "we have no strike against the Railroad, you can cross our picket line, but you do not do any of the truckers' work." Trivett went over and talked to the yardmen in their cars, and the latter then drove into the Yard and went to work. Later in the afternoon, Trivett was advised that the union conductor had refused to "spot" loaded piggyback flatcars at the ramps for unloading on orders from one Jack Varney, the local chairman of the Trainmens Union. Tnvett called Varney about it, and Varney confirmed that "they asked us not to do any piggyback switching, and I do not think we should." Trivett returned to the picket line and asked Simms if the pickets intended that the yard crews should not do any switching of flatcars at the piggyback ramps, and Simms said that was right, "we do not want any switching or any work performed at the piggy-back ramps." The Railroad officials consulted counsel about the problem that afternoon, for that evening Quigley was called by J. Mack Swigert, one of the Railroad counsel, who told him about the strike at the Yard, and that Turner, another trucker, might take over the piggyback hauling work. Quigley told him he would be glad to negotiate a contract with the man who got the hauling work "if we had the members." Turner held a withdrawal card from Respondent, and after he learned on the 25th that his employees, all members of Respondent, would not cross the picket line with the trailer of grapes or other products, he knew he could only "operate union" at the Yard, so he called Quigley several times on the 25th and 26th, advising that he expected to get the hauling contract at the Yard and had already begun the operation, but would like to meet with Quigley to work out a contract and get rid of the pickets. Quigley indicated that there was no use in meeting until Turner had the hauling contract and Respondent represented his workers. When Turner got the first refusal on the 25th, he contacted his attorney, Philip J. Kennedy, told him he had to work out a solution to remove the picket line, otherwise he could not continue operations at the Yard, and instructed Kennedy to get in touch with Quigley to arrange a meeting. Kennedy talked to Quigley the morning of August 26, said he represented Turner, that he understood Petty was out of business, no longer working at the Yard, and had filed a petition in bankruptcy, and that Turner would like to meet with him to work out some way of withdrawing the pickets. Quigley asked if Kennedy would check on the bankruptcy, and let him know if it was a fact. Kennedy ascertained shortly from the office of the local Federal referee in bankruptcy that the petition had in fact been filed that morning. He called Quigley that afternoon or early on the 27th to advise him of the filing, and Quigley told him he had already confirmed that Petty had been adjudicated a bankrupt, so "Petty was out of the picture," so far as concerned any chance of Respondent collecting from him moneys due to Respondent under its contract. Kennedy replied that it was "obvious" that Petty was out of business. or Brotherhood of Firemen The conductor was the supervisor of that crew, taking his orders from the yardmaster TRUCK DRIVERS LOCAL 100, TEAMSTERS In their discussion on the 26th, Kennedy told Quigley that Turner wanted the hauling contract but, from his examination of the piggyback operation and Petty's experience with it, Turner felt it could be profitable only if handled by drivers acting as owner-operators with their own tractors, and that Turner was willing to hire the three former Petty employees on the understanding that they would handle the work on an owner-operator basis and Turner would help them arrange the financing Kennedy and Quigley agreed on a meeting on August 27, at which Turner could work out a collective-bargaining contract with Quigley recognizing Respondent as bargaining agent for the former Petty employees, as employees of Turner Kennedy reported to Turner this conversation and date for the meeting, and apparently Turner reported it to one of the Williamson, for sometime that day freight agent William- son told Simms he thought the strike was settled but, when Simms called Quigley to verify this, Quigley told him `until we get a contract signed [apparently with the man who gets the hauling] it is not settled " On the 26th, Swigert again called Quigley, giving the same information about Turner as the day before, and Quigley replied that he could not discuss a collective- bargaining contract until someone had the hauling contract In this discussion, Swigert said Petty had filed in bankruptcy that day, giving Quigley the number of the bankruptcy case Quigley said he would check on it, and late that afternoon he called the Federal Building in Cincinnati to try to find out about the bankruptcy, but was advised he had called too late in the day Respondent maintained the picket line, with one to three former Petty employees carrying the same picket signs, on August 26 and to about 9 p in on the 27th In this period Joseph Williamson had several talks with the pickets, mainly Simms, about the strike, Petty, and Turner, in course of which Simms told him once that the pickets had no gripes against the Railroad, but Turner was doing the trucking for it, and if he would sign the 13-State agreement with Respondent, the strike would be over, he explained that under this agreement the three pickets would keep their seniority (Simms, Stewart, and Keaton in that order), and any men hired thereafter would be behind them in seniority While the picket line existed for 3 days, no piggyback operations were conducted at the Yard by Turner, other truckers, or employees of the Railroad under any of the piggyback plans,i° except that Turner drove the load of grapes through agree to the other proposals made by Turner, so the meeting was adjourned the picket line on the morning of the 27th, after he received permission from Quigley personally while the latter was at the picket line This occurred after Swigert had called Quigley in the morning, saying the Railroad wanted to get the grapes out to the customer Quigley told him that he should get them out, that he himself would go to the Yard and get them out himself, if necessary Shortly after, Quigley went to the picket lines, told the pickets that, as far as he was concerned, anyone could take out the grapes, and they should let it go 10 Yard employees of the Railroad play an essential role in the piggyback operation by switching flatcars with yard engines to and from ramps for loading and unloading 711 On the afternoon of the 27th, Turner and Kennedy met at the union office with Business Agents Quigley and William 0 Wilson, Simms, and Keaton to talk about negotiation of a contract Turner told the union agents and members that he wanted to work out a way to continue the trucking at the Yard, and was willing to sign a contract with Respondent as agent for his drivers Quigley said he wanted Turner to sign the 13-State (local cartage) agreement (which Petty apparently signed) and at the same time the three pickets must be put back to work without loss of seniority Turner agreed to take them on, but suggested that they come into the operation as owner-operators, using their own equip- ment like Turner Quigley and the two employees present replied they were not interested in that plan Turner said he would sign a city wide agreement li with Respondent and hire the three men without seniority at a base rate of about $2 an hour which would be adjusted retroactively to their date of hire after Turner signed a contract with Respon- dent, Turner explained that the freight rate the Railroad paid for hauling was not high enough to allow Turner to pay the rates in the regular freight hauler's contract, that another local trucker did not pay the union rates, and that he would pay that trucker's rates Quigley replied the Petty employees had been paid over $4 an hour, and that the company he referred to did not pay those rates because it had a separate contract for operating cranes at a Southern Railway facility, using only crane operators, and no highway drivers were involved, and that Turner would have to come under the freight hauler's contract because he would be hauling loads by truck Quigley would not agree to the other proposal made by Turner, so the meeting was adjourned without agreement, with Quigley suggesting that, if Kennedy would submit a written proposal for Turner, Quigley would put it to the three former Petty employees for a vote After the meeting ended in the late afternoon, Simms and Keaton went back to the picket line and resumed picketing with Stewart Turner discussed the situation privately with Kennedy, and instructed him to arrange a new meeting with Quigley, and to offer immediate employment of the three Petty workers without loss of seniority, at a specified rate of pay pending negotiation of a contract In the evening, Kennedy called Ira Farmer, president of Respon- dent, to find out whether it was union policy to refuse to negotiate a contract without a commitment to hire the three former Petty employees, and Farmer confirmed this policy Sometime that evening, Quigley called Farmer in New York City to discuss the situation, and both decided there was "no use picketing where a man has gone out of business" About 8 pm, Freight Agent Williamson told Simms on the picket line that the strike was definitely settled Simms said he could not take down the picket line until he heard from Respondent, so he called Quigley from the Yard office about it, and Quigley told him there was no use picketing further because Petty had filed in bankruptcy Simms then told the other pickets Quigley had said it was definitely established that Petty had filed in bankruptcy, and was "out," so they had "nothing to strike over," and 11 This is apparently another form of standard Teamsters contract, to cover intrastate truckers whose operations may be limited to a city wide or similar local area 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they should stop picketing They stopped picketing about 9 p in Joseph Williamson told them they would start work the next morning for Turner Quigley advised Kennedy of the removal of the picket line when the latter called him shortly after 9 p in When the pickets stopped picketing they told Turner at the Yard that they had received orders to stop picketing, and were told that Turner would put them to work at once When Simms got home that night Keaton called Simms and told him Turner would hire them the next morning "until this thing is ironed out " The three pickets began work for Turner the morning of August 28 at $3 50 an hour, as contrasted to $4 03 an hour they received under Respondent's contract with Petty, and without any of the additional benefits of that contract They worked under this arrangement for Turner for about 3 months until the hauling work was taken over by another trucker, for whom they have worked ever since While they worked for Turner, he never negotiated or executed a written collective- bargaining contract with Respondent covering his employ- ees Throughout his operation of the piggyback hauling, Turner used only his own equipment (rented or otherwise), but never any of Petty's trucks i2 C Contentions of the Parties, and Conclusions of Fact and Law Thereon The basic facts creating the main issues are plain in the record Petty was the primary employer having a labor dispute with Respondent, and since he operated his main place of business at the Yard of the Railroad,13 which had no contract or labor dispute with Respondent and was a neutral employer, it is clear that the primary and a neutral employer shared the same premises , and that, when the picketing of Petty's place of business began, those premises harbored the situs of the primary dispute, which would make Respondent's picketing presumptively legal only if it complied with the limitations and conditions set forth in matter of Sailor's Union of the Pacific (Moore Dry Dock Company), 92 NLRB 547, i e (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 pnmary 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 pnmary employer The record also shows that, after Turner took over the piggyback hauling on August 22, he had no contract or labor dispute with Respondent (except as noted hereafter), nor permanent employees who were members of Respondent, so that he was likewise a neutral employer on 12 1 find the above facts from a composite of credible and mutually corroborative testimony of witnesses of all parties Testimony of any witnesses at variance therewith is not credited 13 He had occasionally done some dispatching from his home but the Yard was his main place of operation 14 It has long been well settled that an employer can be charged with knowledge or notice of employee union or concerted activities from a large variety of circumstances including the rather thin inference arising from the small plant concept Texas Alumipum Company Inc 181 NLRB No 15 Unless a double standard is to be applied under the Act which would require a greater weight or burden of proof of violation of the Act where a labor organization is charged than where an employer is charged the same August 25 and thereafter, in his attempted operations at the Yard General Counsel concedes that conditions (a), (c), and (d) were met by the picketing, but argues that (b) was not because, during the picketing, Petty was no longer engaged in its normal business at the situs , having abandoned the whole operation there (and thus his entire business) on August 21 The Railroad argues in addition that condition (a) was not met because Petty's total and announced abandonment of his operation at the Yard prevented those premises from being considered, in fact or in law, thereafter as a common situs of the pnmary dispute Respondent counters with the argument that to all outward appearances Petty continued his normal business at the Yard after August 21 and did not actually cease his "normal business" there until after he filed his petition in bankruptcy on August 26 and Respondent was convinced on August 27 that this had actually occurred, so that condition (b) existed through August 27, Respondent's theory is that it is not chargeable with knowledge or notice of the cessation of Petty's operations unless and until some vague but formal (and perhaps unchallengeable) official notice of the occurrence (and also of cessation of its existence as a corporate entity) is served on it I find no authority, and Respondent cites none, to show that a different quantum of knowledge or proof thereof in this respect is required by law in the case of labor organizations than in the case of employers, employees, or any other persons I conclude that the law, as applied to the facts here, makes this argument untenable i4 It is clear from the facts found above that Respondent, through Quigley, was advised as early as August 23 by its own members that Petty had completely stopped all operations at the Yard and paid off his employees, and that they were without employment Quigley was told by Simms on Monday, August 25, before the picketing started, that Turner had taken over the operation, and that at least one other trucker was bidding for the work, and Quigley was interested enough in this development to make a telephone inquiry about Turner's past employment, before he set up the picket line He had no reason to disbelieve what Simms had told him about this on the 25th, as Simms and Keaton came to the union office to seek its help about their unemployment and their failure (up to that moment) to get their final pay Hence, I must conclude that Respondent was on notice from reliable sources before the picketing started, that Petty was out of business and had no employees at the Yard, and that another trucker, Turner, had taken over his work under some arrangement with the Railroad 15 The fact that Petty's trucks remained at the Yard during the picketing and for months after it stopped is broad principle must be applied to determine whether a union has knowledge of activities which bear on the reason for or legality of its conduct 15 Although Simms was not a formal shop steward for Respondent among Petty employees and not technically its agent as Respondent argues his almost daily reports to and conversations with Quigley after August 21 about the changing situation with respect to the piggyback hauling at the Yard and his relay of Quigley s orders about the load of grapes on August 25 to the Railroad official all prove that in a real sense he was Respondent s eyes and ears at the Yard from the time Petty quit the hauling and after Turner took it over TRUCK DRIVERS LOCAL 100, TEAMSTERS not significant proof that he was still doing "normal business" at the Yard, or even continuing to operate elsewhere as a trucker, in light of Respondent's knowledge that Turner was doing the only piggyback hauling by himself on August 22, with help of two former Petty men on the 23rd, and tried to operate with other employees on the 25th, but throughout only with his own equipment, never using any of Petty's trucks. In addition, Quigley also learned from counsel for the Railroad and Turner as early as the night of August 25 and on the 26th that Petty was out of business and going into bankruptcy, and Quigley verified this himself on the 26th, all of which reasonably indicated to Respondent that Petty was out of the picture so far as the piggyback operation at the Yard was concerned, and was taking steps toward legal dissolution of his corporation.16 This was confirmed by the attempts of Turner and his attorney to contact Quigley to set up negotiations with Respondent looking to a contract covering employees in Turner's operation and involving the contemporaneous hiring of three former Petty employees, the main desire of them and Respondent, which was demonstrated by Quigley's repeated replies to Turner, his attorney, and the Railroad counsel that he would be glad to discuss a contract with anyone as soon as he had the hauling contract and Respondent "had the members," meaning that its members were employed on the operation.17 In light of these events, the fact that Turner had not made any permanent contract with the Railroad before the picketing ended is immaterial and insufficient to support any claimed doubt that Petty was out of business or that Turner had taken over. In view of all these circumstances, Respondent cannot properly claim Petty was still in "normal business" at the Yard because he was not dissolved as a corporate entity before the picketing ended. It is a well-known fact of business and industrial life that any employer (corporate or individual) can stop its actual business operation and discharge its entire work force, but still remain in existence legally as an inert corporate shell, with plant and equipment still in place but lying idle; the former circumstance amply warrants a conclusion that it is then no longer doing "normal business" at its formal situs of business, but the latter circumstance does not support an inference to the contrary; the controlling factor is the complete cessation of normal business operations and the disbanding of its work force.18 While none of the parties cite any decisions directly in point, the Board has held in a situation involving the 16 Quigley claimed in testimony , and Respondent argues, that it was entitled to disregard what Petty told his employees on August 21, about going out of business, as lust another empty threat such as he had made in the past to his employees This argument has no merit, because on the 22nd Petty suited his action to his words by ceasing all operations and terminating his employees , which he had never done before , and he never resumed the operation at the Yard, which his former employees well knew from their observations while picketing , and Respondent's business agents must have observed when they were at the picket line 11 All the above facts and circumstances, together with Quigley's penchant for self-contradiction and giving argumentative answers during testimony, and his palpable inability to recall definite facts on crucial points, as well as his completely incredible claim at one point that he did not even know at the time he testified whether Petty was out of business or had gone into bankruptcy, make his contrary testimony on the issue of knowledge unreliable and incredible 18 Linoleum, etc, Union No 1236 (Cascade Employers Assn ), 180 NLRB No 40 713 same issue that when a primary employer, who normally engages in hauling products to premises of a secondary employer and loads and unloads them at that point with its own employees, leaves a trailer at those premises to be unloaded only by employees of the secondary employer, the primary employer is not engaged in its normal business at the site of the secondary employer, so that picketing of his truck while located at that site was directed to interference with the work of the secondary employer, not that of the primary, and thus violates Section 8(b)(4)(i) and (ii)(B) of the Act. Teamsters, etc. Local 279 (Wilson Teaming Company), 140 NLRB 164. That ruling applies here a fortiori, where the primary employer had completely ceased its normal business at the common situs before the picketing started, and was taking steps to dissolve its corporate entity during the picketing. The substantial and notorious evidence that Petty was no longer in business in any sense at the Yard after August 21 also supports the Railroad's contention that Petty, the primary employer, was no longer sufficiently "present" at the Yard so as to make it a "common situs" or warrant the conclusion that the picketing was purely pnmary.19 The key factor for existence of a common situs is the continued actual "operations" of the primary at the picketed site, because the complete cessation of that "operation" has been the traditional objective of strikes and picketing.20 It has been held that where a primary employer has ceased in the normal course of its operations to haul or use barges with its own employees, and employees of a secondary employer do work on them, the barges ceased to be a common work situs of both primary and secondary employers, but were the situs of the secondary employers alone, so that picketing of them in that period violated Section 8(b)(4). National Maritime Union (Farmers Union Grain Terminal Assn.) v. N. L, R. B., 367 F.2d 177, 178, cert. denied 386 U.S. 959. The violation found in that case makes the violation all the more apparent here, where Petty had totally ceased operations at the work situs of the secondary employer, and none of its idle equipment was being handled or used by secondary employees. This shows that a "common situs" was nonexistent at the Yard during the picketing, hence condition (a) of the Moore Dry Dock criteria was not met, because the picketing was not limited strictly to times when the situs of the primary dispute was located at the Yard. This conclusion is also supported by Respondent's admission in one part of its answer that Petty Respondent also argues that Petty was not defunct because he had other customers besides the Railroad, but the only proof adduced on this came from a few questions of Respondent's counsel which disclosed only that Petty told one other customer after August 21 that he was going out of business Respondent did not pursue this line further to find out if Petty had any other than two customers, or if he continued to operate his business from some other location , such as his home Thus, the salient fact remains that he dismissed his whole work force on August 21 and never rehired them or any other employees thereafter, or used his tractors thereafter 19 The Board has recently outlined the factors governing the determination of a common situs in United Steelworkers, etc, Local 6691 (Auburndale Freezer Corporation), 177 NLRB No. 108, but the facts in that case do not control here, for there the facts clearly showed a "live" contractual arrangement between primary and secondary employers which made a warehouse of the alleged secondary part of the operation of the primary, during the picketing 20 United Steelworkers of America v N LR B, 376 U S 492, 499 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "ceased doing business on or about August 21, 1969." It follows that under Moore Dry Dock it must be presumed that the picketing was for an unlawful objective, which Respondent has not rebutted.21 As Respondent picketed Petty at the Yard when it knew Petty was out of business there, it follows that the Respondent was picketing the operation of the Railroad, a neutral employer, not Petty, and that condition (b) of the Moore Dry Dock criteria was not met, hence I conclude that Respondent picketed the Railroad in order to induce its employees to refuse to perform services for it.22 By such picketing it also threatened that secondary employer with an object of forcing it to cease handling any piggyback work within its premises and cease doing business with any other person engaged in hauling as part of the piggyback operation, for the facts found above show that the picketing immediately caused employees of Turner and other neutral truckers to refuse to haul piggyback trailers across the picket line,23 which prevented the Railroad from continu- ing to do business with Turner and the other truckers on the piggyback operation and from performing any phase of that operation in the Yard with its own employees,24 and caused it to cancel its contract with Petty. Such conduct of Respondent clearly falls within the scope of Section 8(b)(4) of the Act, for it disrupted a substantial part of the Railroad operation at the Yard.25 If we appraise Respondent's picketing vis-a-vis Turner, and assume that Turner was an employer (based on his temporary hiring of the Petty workers on August 23 and his promise to them then, and offer to Respondent later, that he would take them on as temporary help until a contract was worked out), that he had his main place of business at the Yard (like Petty), and that he was in a primary dispute with Respondent (based on their disagreement over the wage scale, status of drivers as regular employees or owner- operators, and type of contract to be signed), I must still conclude that the picketing did not meet condition (d) of the Moore Dry Dock criteria, because the picket signs and remarks of pickets to Railroad officials, Turner and drivers of other neutral employers announced that the strike was only against Petty, not Turner. Further, the objective of the picketing was illegal : I find from admissions of Simms that when Freight Agent Williamson on August 26 indicated that he felt the strike was settled, Simms telephoned Quigley and then reported to Williamson that Quigley had said, "Until we get a contract signed it ain't settled." I note 21 Cf. Local 254, Building Service Employees Intl Union (United Building Maintenance Corp), 173 NLRB No. 49 (as to the Lechmere Hospital situation). 22 The picketing was effective in that it caused employees of the Railroad to clear with the pickets and Respondent 's agent before they crossed the picket line to go to work , and thereafter refused to handle any piggyback flatcars, a necessary adjunct to the piggyback hauling formerly done by Petty, in accordance with that condition to their entry to the Yard imposed by Respondent's agents and its pickets. 23 1 find from uncontradicted testimony of Jeseph Williamson that during the picketing drivers of trucks owned by customers of the Railroad operating under plan I refused to bring piggyback trailers into the Yard after seeing the picket line and talking to the pickets 24 Respondent clearly intended the picketing to have these results, for uncontradicted testimony of Turner (a union member himself), Joseph Williamson and Keaton shows that all parties knew a Teamsters picket line would not be crossed by members of Respondent working for other truckers in the area , and the pickets made sure of this by checking all also that Quigley did not remove the picket line until after Turner had given personal assurance in their conference that he would hire the three pickets and execute some kind of contract recognizing Respondent as bargaining agent for his drivers. It is patent from these facts and circumstances that Respondent's objective in closing down all the piggyback work was to make sure that a union hauler did the work with union drivers, like Petty. This was an illegal objective.26 I also find that the picketing in the circumstances outlined above exerted effective coercion and restraint upon the Railroad and other neutral employers seeking to do business with it in the piggyback operation within the meaning of Section 8(b)(4)(ii)(B) of the Act. See Interna- tional Hod Carriers, etc., Local 1140 (Gilmore Construction Company), 127 NLRB 541, 545, footnote 6. In summary, I conclude on the above facts and applicable law, that Respondent's picketing did not conform to the Moore Dry Dock criteria to the extent noted above, and that by the picketing Respondent induced and encouraged individuals employed by the Railroad, Turner, and other employers, engaged in commerce or in industries affecting commerce to engage in strikes or refusal in the course of their employment to perform services for their respective employers, and also threatened, coerced, and restrained the Railroad, Turner, and other employers engaged in commerce, all with the objectives of (1) forcing and requiring the Railroad to cease doing any business with Turner or any other person unless and until Turner or any other person performing piggyback hauling for the Railroad employed members of Respondent and recogniz- ed Respondent as collective-bargaining agent of its employees; (2) preventing the Railroad from doing any business with Petty during Respondent's labor dispute with Petty; 27 and (3) forcing and requiring the Railroad to cease doing business with any other persons. Each of these objectives is proscribed by Section 8(b)(4) of the Act. I find that by picketing as aforesaid for such objectives Respon- dent has engaged in unfair labor practices affecting commerce as defined in Section 8(b)(4)(i) and (iiXB) and Section 2(6) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of the trucks, moving in and out of the Yard, even those of concerns driving up the adjacent roadway to the premises of another commercial concern, and permitting them to go in or out only after making sure they were not going into the Railroad Yard See Local 459, etc. (Friden, Inc. et. als.), 134 NLRB 598, 599 25 Local 294, International Brotherhood of Teamsters (The Great Atlantic and Pacific Tea Company, Inc.), 173 NLRB No. 234, and cases cited in in. 6. 26 United Association of Journeymen, etc, Local 32 (A & B Plumbing, Inc), 171 NLRB No 66 27 It is clear from the sequence of events found above that the Railroad canceled Petty's contract only after oral and written advice from him that he had quit work under it and abandoned it completely, and obviously the Railroad would not rescind that cancellation or try to do business with him thereafter, unless and until he might indicate a probability of going back into business, which was an obvious impossibility due to the Respondent's claims against him which forced him into bankruptcy TRUCK DRIVERS LOCAL 100, TEAMSTERS 715 Railroad, Petty, and Turner 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. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (►i)(B) of the Act, I shall recommend that it cease and desist from such practices, and take certain affirmative actions designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Railroad , Petty, and Turner are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By inducing and encouraging individuals employed by the Railroad, Turner , and other persons engaged in commerce or in industries affecting commerce to engage in strikes or refusals to perform services in the course of their employment, and by threatening , coercing, and restraining said employers and persons , with the objects set forth above, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the Act. On the basis of the foregoing findings of fact and conclusions of law, and the entire record in the case, I hereby issue the following: [Recommended Order ommitted from publication.]