Drivers Local 695

DRIVERS LOCAL 695 753 Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, IBT , and its Agents Donald Eaton and Eugene Machkovitz and Tony Pellitteri Trucking Service, Inc. Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, IBT, and its Agent Donald Eaton and Tony Pellitteri - Trucking Service Inc. Cases 30-CC-82 and 30-CB-212 February 25, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On October 14, 1968, Trial Examiner Milton Janus issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. With respect to certain other unfair labor practice allegations, he recommended that they be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications. The Trial Examiner found that picketing at University Hospital on May 10 and 11, 1968, and at Decar Plastics on May 13, at times when no Pellitteri nonstriking employees were present violated Section 8(b)(4)(i)(B) of the Act. The General Counsel excepts to the Trial Examiner's failure to find that the oral inducements by Respondent's pickets which occurred at those locations further violated Section 8(b)(4)(i)(B) of the Act. We find merit in the General Counsel's exceptions. The record shows,. as set out more fully in the Trial Examiner's Decision, that at the University Hospital on May 10, picket Cowell sought out Hacker, the business agent of the Wisconsin State Employee Association Union, which represents the University Hospital employees, and asked him if the Association would honor Respondent's picket line. Hacker told Cowell he would contact McConnell, the president of his local, and have McConnell instruct the membership to honor the picket line. This was done. Later in the day, a truck from the University Hospital carrying oxygen pulled up to the entrance where Respondent's pickets were, and one of the pickets twice called out, "If you're a union member, keep on going" (i.e., do not enter). On May 11, Cowell called McConnell and told him that a University rubbish truck did not honor the picket line on the previous day and McConnell promised to look into the matter and talk with the driver. Decar Plastics has two plants, designated as Plant 1 and 2. As employee Ellis approached Plant 2 on May 13, a picket, identified as Cowell, who was near the employee entrance to the plant, told Ellis he was crossing Respondent's picket line and asked Ellis to honor the picket line. That same day at Plant 1, employee Orth, as he attempted to enter at the employees entrance, in the presence of other employees was asked by Respondent's pickets to honor the picket line. Orth, who was a steward at Decar, decided to wait until the other steward arrived before he made any decision. When the other steward arrived, the pickets again requested that the Decar employees honor the picket line. After the Decar manager arrived at Plant 1, the pickets again stated that they wanted Decar employees to honor their picket line. It is clear that Respondent did not have a dispute with either University Hospital or Decar Plastics at the time of the above-related oral inducements, and that such conversations between Respondent's pickets and employees of University Hospital and Decar Plastics did constitute oral inducements in violation of Section 8(b)(4)(i)(B) of the Act. The General Counsel also excepts to the Trial Examiner's further finding that Respondent did not violate Section 8(b)(4)(i)(B) in picketing or in the conversations that occurred at Kohl's University Avenue store on May 6. The record shows that at the time a Pellitteri truck was present, picket Severson asked Latchford, a produce clerk at Kohl's, "if we could honor their picket line ... and he wanted to know if we could keep Pellitteri from picking up . . ." Severson also asked if everybody in the store was unionized and on receiving an affirmative reply, asked if Kohl's employees would honor a picket if it were set up in front of the store. Latchford replied that they could not "without our representative telling us to." Contrary to the Trial Examiner, we find that Severson's continuing requests of Latchford represented a clear oral inducement of Kohl's employees to engage in a strike or refusal to perform services in violation of Section 8(b)(4)(i)(B) of the Act. 174 NLRB No. 115 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner's Conclusions of Law and Recommended Order adequately cover the additional violations found. However, as Donald Eaton and Eugene Machkovitz are admittedly agents of Respondent, were alleged as such in the complaint, and were found to be responsible for the unlawful conduct herein found, our order against Respondent will be expanded to include its named agents, Donald Eaton and Eugene Machkovitz. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that Respondent, Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, IBT, Madison, Wisconsin, its officers, agents, and representatives, including Donald Eaton and Eugene Machkovitz, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. Add to the Notice marked "Appendix" appropriate lines below that of the lined space to be signed by the representative of the Respondent Union for the signatures of Respondent's agents, Donald Eaton and Eugene Machkovitz, and the date. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner: Original and amended charges were filed on May 14 and May 28, 1968, by Tony Pellitteri Trucking Service, Inc. (Pellitteri), in Case 30-CC-82. A complaint based thereon was issued on June 7, 1968,' against the-Respondent (also referred to at times as the Union or Local 695) alleging that it had violated Section 8(b)(4)(B) of the Act by picketing and threatening to picket neutral employers, and by inducing neutral employees to honor its picket line, with an object in both cases of forcing the neutral employers to cease doing business with Pellitteri. A charge was also filed on May 27, by Pellitteri against Local 695 in Case 30-CB-212. On June 26, the Regional Director issued a complaint based thereon, alleging that certain acts of striking Pellitteri employees against nonstriking employees violated Section 8(b)(1)(A) by restraining and coercing the latter in the exercise of their right not to join the strike. The two complaints were consolidated for hearing on June 26.= I conducted a hearing in this matter at Madison, Wisconsin, on July 22 through 24, 1968. Briefs have been received from the General Counsel, Respondent and 'All dates hereafter are in 1968 , unless otherwise specified 'Also consolidated with these two was a third case, in which Local 695 was the charging party, and Pellitteri the Respondent. That case, 30-CA-794, was disposed of before the opening of the hearing by an informal settlement agreement , and I severed, on the General Counsel's motion and without opposition by any party, Case 30-CA-794 from the other two cases which were the subject of the instant hearing. Charging Party, and have been fully considered. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT L JURISDICTIONAL FACTS Pellitteri is a Wisconsin corporation engaged at Madison, Wisconsin, in furnishing trash pickup and removal services. During the past calendar year, which is a representative period, Pellitteri received in excess of $50,000 for services performed for enterprises located in the Madison area, each of which annually shipped or received goods and materials to or from points located directly outside the State of Wisconsin, valued, in excess of $50,000. I find that Pellitteri is an employer engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that it is a labor organization within the meaning of the Act. IIL THE UNFAIR LABOR PRACTICES Background and Issues Pellitteri provides a trash removal service in and around Madison, Wisconsin, mainly for commercial, industrial and institutional customers. On May 6, 1968, most of the Pellitteri drivers and helpers went out on strike, pursuant to a call from their certified representative, Teamsters Local 695. Pellitteri continued to operate, using supervisors, newly hired employees and nonstrikers. During the course of the strike, which was still in progress late in July 1968, when this hearing was held, there occurred a number of incidents involving the strikers on the one hand, and nonstrikers, Pellitteri customers and their employees on the other The complaint in Case 30-CB-212 alleges the commission by agents of Local 695 of various acts directed against Pellitteri employees and applicants for employment, which restrained and coerced them in the exercise of their right, guaranteed by Section 7 of the Act, not to join the strike. The complaint in Case 30-CC-82 alleges that agents of Local, 695 threatened to, and did picket Pellitteri customers to force them to cease doing business with Pellitteri, and also picketed their premises at times when Pellitteri trucks and employees were not present, in order to induce the employees of the customers not to perform services for them. Respondent concedes that some of the conduct of the strikers would constitute violations of Section 8(b)(1)(A) and 8(b)(4)(B) if it had been ratified, approved, condoned or directed by its agents. It specifically contends, however, that none of the strikers were its agents, and that Eaton and Machkovitz, officials of the Union and purportedly its only agents, directed strikers not to engage in violence or to appeal for a total strike of secondary employees, and that whenever such conduct occurred, the agents expressly repudiated it and directed the strikers not to repeat it. Moreover, as to most of the incidents alleged to be violative of Section 8(b)(4)(B), Respondent contends that they were, in effect, attempts to perfect its primary strike against Pellitteri, and that it could lawfully bring direct DRIVERS LOCAL 695 755 pressure to bear against secondary employers and their employees to halt trash removal by Pellitteri at the premises of the secondary employers. Description of Pellitteri's Operations Customers store their trash in metal containers, owned by Pellitteri but physically located on their own premises. The containers are of various capacities, ranging upward from 1 cubic yard. Except for a 30 cubic yard container on the premises of the hospital operated by the University of Wisconsin, which is loaded on a flatbed truck and hauled away when it is filled with trash, the other containers can be lifted by winch at the customers' premises, and their contents emptied into dump trucks. Trash pickups are made on scheduled routes and at scheduled intervals, sometimes daily, but more usually two or three times a week, depending on the number and size of the containers and the amount of trash generated by the customer. The dump truck is driven onto the customer's premises or on a public street where the containers can be emptied. A pickup may take anywhere from 15 to 45 minutes, depending on the number and size of the containers. At some of the food stores which Pellitteri services, trash is kept in a bin or room inside the store, which can be opened from the outside and then loaded into a dump truck. Alleged Violations of Section 8(b)(l)(A) 1. The first day of the strike, May 6, 1968, the strikers gathered at the entrance to the Pellitteri property where its office and garage are located Schiller, a mechanic for Pellitteri, did not join the strike and when he reported for work that morning he discovered that the keys to the trucks were missing from the place where they were usually kept in the garage. He went outside to ask the pickets about the keys, and accused Severson, a striker, with having taken or hidden them. Severson denied it and as Schiller turned around to go back to the shop, he heard a sound of something being hit. He started to walk in the direction of the sound, and as he turned he saw Severson also turn around and walk back into the crowd. Schiller walked over to his car and saw that it had been freshly hit, making a dent on its trunk. 2. On May 8, in response to a newspaper advertisement, Richard Storkson came to the Pellitteri premises to apply for a job. Storkson was acquainted with Cowell, one of the strikers who was then picketing, and asked him what was going on. Cowell said there was a strike on, and Storkson said he had seen the "help wanted" ad, and was going in to see about a job. As Cowell was telling him that he would have to go through the picket line to get through the office, other strikers started to approach them. According to Storkson, he decided that rather than argue or fight about it, he would not apply just then. Later, he called the office and made an appointment to be interviewed. He came in the next day and was hired as a helper on a truck making trash pickups. 3(a) The day after, Storkson started to work for Pellitteri. He was working with Schiller who was regularly the shop mechanic but who was then working as a driver. They had gone to University Hospital to load up the big trash container on the flatbed truck for emptying at the dump. While at the hospital, they were being picketed by some of the strikers. Storkson heard Cowell tell Strait, another striker, that they were going to have to start following these guys horrte. At the end of the day, Storkson returned to the Pellitteri garage to get his car and drive home. As he left the parking lot to pull out into the highway, he saw five or six men get into a light green Chevrolet and take off after him. They followed him closely all during the 8-mile trip to his home, and at one point, on a narrow road leading to a single lane bridge, attempted to crowd him off the road. When he got to his house, they were right behind him. He got out of his car, picked up a stick and told them to come at him one at a time. He identified those in the car as French, Kolesar, Strait, Cowell and Severson, all of them strikers. They continued to sit in their car, screaming and waving their fists at him. (b) On May 23, Robert Varholik, who had been hired during the strike, was driving a Pellitteri trash truck. He had stopped at the Monona Grove Shopping Center for a pickup when one of the pickets in the car which had been following his truck that day, came up and engaged him in conversation. The picket asked him his name, asked him what a tire wrench on the outside of the truck was for, asked him whether he thought he was tougher than 'him, where he drank, where he lived, and asked him if he would like to have a fight with him. Varholik's impression from the questions, particularly that about where he lived, was that the picket was going to follow him home after work. (c) On June 3, Laverne Zimmerman, a helper on a Pellitteri truck, was followed as he left work for home by three strikers, French, Strait and Severson, driving a green Chevrolet. They followed his car for 2 miles or more, but after he made a turn he did not see them again. They did not yell at him or make any threatening gestures. 4(a) On May 28, about 2 p.m., Varholik and Tony Pellitteri were cleaning out an incinerator at Eagle Food Store. They had been followed earlier by four or five pickets in a green Chevrolet which then parked behind their truck. Varholik happened to look around and saw the green car start up, and saw an arm extended from a rear window. When they got to the truck they saw that it had been spattered with eggs. (b) The same day, Schiller was driving a Pellitteri truck back from the city dump. While there he had noticed the green Chevrolet used by the strikers. As he was returning from the dump, he noticed the same car pulled off on the side of the road with Cowell, Strait and Severson standing around it. As he passed the car he could see something being thrown at his truck. They were eggs which struck the truck's windshield and righthand side door. 5. There are two other incidents relied on by the General Counsel as additional violations of Section 8(b)(l)(A). One involves Varholik and Swanoski, nonstriking employees, on May 23. They had made a wrong turn while being followed by a carload of pickets. Varholik, who was driving, wanted to back up his truck but was unable to do so for a few minutes because the pickets' car was directly behind him. He was however, able to go forward which would have meant a few additional turns When the pickets saw Varholik pick up the microphone for his two-way radio, the driver backed up his car so that Varholik could also back up. Swanoski, who had been Varholik's helper, decided that day to quit his job because he was dissatisfied with the pay, but he had told no one at the Company about his decision. The next day, May 24, he did not go into work. As he was walking with his wife on a Madison business 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD street, a green Chevrolet with five or six strikers pulled up alongside them. One of the strikers asked him if he was working, and Mrs. Swanoski then said that her husband had quit. The striker then said to Swanoski that he had better quit if he knew what was good for him. Alleged Violations of Section 8(b)(4)(B) 1. Threats to Secondary Employers Eugene Machkovitz, a business representative of Local 695 and one of its admitted agents, was the official immediately in charge of the strike, under the general direction of Donald Eaton, the Union's chief executive officer. In the first few days of the strike, Machkovitz took certain action with respect to some of Pellitteri's larger customers, designed to bring pressure to bear on Pellitteri to settle the strike. (a) On May 6, the day the strike began, Machkovitz called Roger Fish, president of Fish Building Supply Company, and asked for his cooperation in the Union's strike against Pellitteri. Fish asked him what he meant by cooperation and, according to Fish, Machkovitz answered that Fish knew what he meant. Fish said he considered that what Machkovitz meant was that his company would be struck unless he stopped using the Pelhtteri service. The materials yard which Fish operates has 15 to 20 Pellitteri trash containers around its premises. The next day, May 7, a Pellitteri truck arrived at the Fish premises to empty these containers. While it was in the yard, a car drove up and parked near the main gate. Two men got out with picket signs, and one began picketing at the exit gate and another at the entrance gate.' The pickets did not seek to enter the yard itself. The Pellitteri truck remained on Fish's premises for about 30 minutes, and after it left, the pickets remained at their posts for another 15 minutes. This was apparently the only day that any picketing occurred at Fish. On May 10, Machkovitz wrote Fish a letter saying that the Pellitteri containers would be picketed as long as they remained on the Fish premises or until the strike was settled. On May 13, Machkovitz again telephoned the Fish offices and told its corporate secretary that if the containers were not removed he would put a full-time picket at the yard. (b) Machkovitz had two telephone conversations with John Mayer, the manager of Wisconsin Telephone Company at Madison. On May 13, Machkovitz told him that unless the Pellitteri containers were removed from its premises, it would be picketed the next morning. Mayer said he would find out if the telephone company was in fact using Pellitteri for trash removal. Mayer called him back that afternoon but was unable to reach him. The next morning, Machkovitz called Mayer again and this time offered another alternative to being picketed. He said that picketing would start later that morning unless Mayer agreed either to remove the containers from its premises, or agreed not to use them if they remained there physically. Mayer, however, continued to use the Pellitteri service, including the containers, and no picketing ensued. (c) On two occasions between May 6 and 10, strikers who were following the Pellitteri trucks began picketing at The legends on the picket signs read as follows. On one side, "Employees of Tony Pellitteri Trucking Service, Inc , on Strike Teamsters Local 695 " On the other side, it read, "Our only dispute is with Tony Pellitteri Trucking Service, Inc , Teamsters Local 695 " The signs at all the sites picketed by Pellitteri strikers were identical the premises of Madison Gas and Electric Company. James Day, a storekeeper for Madison Gas, told the Pellitteri driver to discontinue unloading the container and then asked the pickets to leave the Company's property. On May 10, Machkovitz sent Madison Gas a letter advising it that it would be picketed as long as the Pellitteri containers remained on its premises, and on the same day he called Day to learn if the containers were still on its property.4 When Day said they were, Machkovitz said that unless they were removed by the following Monday morning, the Union, would place a picket line at each of the gates at the property where the buckets were located. The Pellitteri buckets or containers were removed by Madison Gas before that Monday morning. (d) On May 10, Machkovitz telephoned Decar Plastics, a Pellitteri customer, and in the absence of the manager, Richard Dahmen, asked his secretary to advise Dahmen that unless the Pellitteri trash containers were removed, the Decar premises would be picketed.' Machkovitz confirmed this advice in a letter to Decar sent the same d ate. (e) The system for collecting and removing trash is somewhat different at University Hospital than at other Pellitteri customers. Hospital employees bring trash in carts to a receptacle, called a loader, which is mechanically driven into a 30 cubic yard container, called a packer. The packer is normally filled up about every third day. It is then placed on a flatbed truck which takes it to the dump, empties it and returns it to the hospital. The loader had been designed and was then owned by Bates Equipment Company which had lent it to the hospital on a trial basis. The packer and the flatbed truck were owned by Pellitteri. On Thursday evening, May 9, although the packer was full it had not been removed for dumping, and Pellitteri had brought in one of its regular dump trucks to serve as a temporary container. The next afternoon, May 10, three strikers carrying picket signs appeared at the hospital and proceeded to stand or walk about on the sidewalk near the entrance to the hospital's parking lot. The nearest access to the packer and the truck were at this entrance. When the pickets arrived, and for about 2 hours thereafter, there were no nonstriking Pellitteri employees present at the hospital Vernon, an attorney employed by the State of Wisconsin to handle employment relations, called Eaton of Local 695 to find out about the picketing. The result of their conversations that afternoon was that the hospital promised to have the Pellitteri truck removed as soon as possible, and to try to get someone other than Pellitteri to handle the 30 cubic yard packer. Eaton said that he would remove the pickets if that were done. About 3:30 p.m., Pellitteri brought someone out to remove the truck, but the packer itself was not moved. Pellitteri employees were on the premises for about 15 minutes, but after they left, the pickets stayed at the parking lot until about 5.30 p.m. The next morning, the pickets returned to the hospital area. Bucklew, the university's labor relations officer, called Eaton about 9 a.m. to ask him why the picketing had been resumed since there were no Pellitteri trucks or employees on the premises. Eaton said there must be a mixup, and asked to speak to one of the pickets. After he 'The letter, General Counsel's Exhibit 5, shows that Madison Gas did not receive it until May 13 'The two plants of Decar were in fact picketed on May 13 The picketing is described in the following section of this Decision DRIVERS LOCAL 695 757 did so, the picket told Bucklew that they would leave, but would return whenever a Pellrtteri truck or employee appeared. (f) On May 20, the Union impliedly abandoned its previously expressed intention to picket at the premises of Pellitteri customers where there were containers. Machkovitz sent letters to all the customers whom he had earlier advised of the Union's alleged right to picket them, as well as to Pellitteri and its attorney, stating that the Union would not, by picketing, induce their employees, customers or suppliers to terminate their relationship with the Pellitteri customer because the customer in turn maintained a business relationship with Pellitteri. The letters then continued as follows: However, we shall continue to maintain economic and psychological pressure on Tony Pellitteri Trucking Service, Inc., by picketing his vehicles wherever they might be. As long as Pellitteri vehicles are at your premises, we will picket in the vicinity of the vehicle, and the pick-up station. When Pellitteri leaves the location, we shall leave also. Section 7 of the National Labor Relations Act affirmatively protects this course of conduct. 2. Inducements of employees of secondary employers (a) University Hospital: About noon an May 10, striker Cowell went to the office of the Wisconsin State Employees Association, whose Local 171 represents University service employees, to ask for its cooperation in honoring their picket line. Hacker, a field representative of the Association, to whom Cowell spoke, said he thought they would do so. Hacker then called Bucklew, the labor relations officer for the University, and McConnell, the president of Local 171. Hacker told McConnell to inform their members to keep out of the area where the picketing would be going on. Hacker then went out to see and talk to the pickets. He asked them how long they would be there, and one of them said they would picket in front of the hospital as long as the Pellitteri truck was there. About this time, a University truck carrying oxygen for the hospital drove up to the entrance, and one of the pickets shouted at him, "If you're a union member, keep on going." At 3:30 p.m. that day, McConnell spoke to about 25 employees of the University, all of them members of Local 171, and told them that he thought they should honor the picket line at the hospital service entrance because of the possibility of disturbances or physical harm, but that they could use entrances to the hospital other than the loading dock. These other possible entrances were much less convenient for the functions to be performed at the hospital by its employees. As I have noted previously, there were no nonstriking Pellitteri employees on the hospital grounds that afternoon except for a 15-minute period when two of them came to move the truck which was then serving as an auxiliary container. The next morning, Cowell called McConnell to complain that a University trash truck servicing the hospital had failed to honor the picket line. McConnell promised to check into it and to have a talk with the driver. (b) Decar Plastics: This company has two plants near Madison, about a mile apart On Monday morning, May 13, two pickets appeared at plant I shortly before 7 a.m., when employees begin work. Decar's employees are represented by a union, and when one of the stewards saw the pickets he went over to speak to them, together with other plant employees. The pickets told them they were on strike against Pellitteri, a fact already evident from their picket signs, and asked them to honor their picket line. Orth, a steward at plant 1, testified that the pickets were on a public street in line with the employees' entrance. The two Pellitteri trash containers are on the outside of the plant about 50 feet from the employee entrance. The pickets also told the stewards and other employees at plant 1 that they had no dispute with Decar and only wanted to prevent Pellitteri from removing the trash from Decar's premises. The stewards were reluctant to tell the employees what they ought to do until they had spoken to an official of their union, and by the time they got in touch with • him many of the employees had refused to start their work. The advice they got from their representative was to cross the picket line but not to carry their trash baskets out to the Pellitteri containers as they normally did. No Pellitteri truck was at the plant that morning while the pickets were there, nor was any pickup of trash scheduled for that day At plant 2, picket Cowell asked employee Ellis, as he was preparing to enter the plant, not to cross their picket line. Ellis testified that the pickets were in front of the employee entrance and about 150 feet from the Pellitteri containers. No Pellitteri truck was there at the time. (c) Kohl's Food Markets: On May 6, the first day of, the strike, two pickets appeared at the rear of Kohl's store on University Avenue while a Pellitteri truck was making a pickup. Severson, one of the pickets, asked a clerk who was there if the store employees were union, if they would honor their picket line, and if the employees would stop Pellitteri from making its trash pickups. The clerk was noncommittal, and the pickets apparently left when the Pellitteri truck did. On May 13, 14 and 15, there was picketing at a Kohl store at the corner of Winnebago and Milwaukee Streets in Madison. There are customer entrances facing both streets, but these entrances to the store are not flush with the streets since a parking area surrounds the store. There is also a rear entrance on Milwaukee Street where the trash pickups are made, about 100 yards from the front, or customer, entrance. On May 13 and 14, the pickets walked at the entrance to the parking area closest to the public entrances. No picketing took place at or near the rear entrance on Milwaukee Street even though a Pellitteri truck was there at the time making a pickup. The next morning, picketing again took place near the two customer entrances at times when no Pellitteri truck or nonstriking employees were present. While the pickets were there, a truckdriver delivering goods to Kohl asked the assistant store manager whether he should honor the picket line since one of the pickets had asked him not to. The assistant manager told him to call his' dispatcher, and thereafter he completed his delivery. Responsibility of Local 695 for Acts of Strikers On May 6, about eight of the Pellitteri employees went on strike and began picketing at the Pellitteri yard. Two or three soon got other jobs or otherwise abandoned the strike, while the remaining five or six continued to picket the Pellitteri premises, follow the trucks to customers' premises and to engage in those acts alleged to be violative of Section 8(b)(1)(A) and 8(b)(4)(B). With so small a group of active strikers there was little need for any specific formal organization or control of their 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities. No strike committee or picket captain was appointed. Local 695 furnished them with picket signs, paid them strike benefits of $30 per week, and issued instructions through Machkovitz, the agent in charge. The pickets were in frequent touch with him either by telephone or in person, both at the Union's office and at the picket line. When some of the pickets were arrested on May 28, charged with throwing eggs at a Pellitteri truck, the Union provided counsel for them and arranged for their release. Whenever something novel came up, as at the University Hospital, either Eaton or Machkovitz were available for consultation, while the pickets considered their instructions to be binding. The Union argues that it was not responsible for any illegal conduct of which the strikers may have been guilty. It admits that the appeals of strikers to employees of Decar and University Hospital not to cross their picket line would be in violation of Section 8(b)(4)(B), while its failure to present any argument in its brief as to the conduct alleged to be in violation of Section 8(b)(1)(A) implies abandonment of any defense on that score. Nonetheless, the Union contends that it did not ratify, approve, condone or direct any action of the strikers which might be violative of the pertinent paragraphs of Section 8(b), that in fact, it expressly directed them not to engage in violence or to appeal for a total strike of secondary employees.' I find the Union's argument unpersuasive. I note, first of all, that under Section 2(13) of the Act the fact that the specific acts performed by the pickets may not have been actually authorized nor subsequently ratified by the Union is not controlling in determining whether the Union was responsible for their actions. Secondly, the wishes of Machkovitz and Eaton, no matter how often brought to the attention of the pickets, that they comport themselves without transgressing the provisions of the Act, does not absolve the Union from responsibility for such violations. The attorney for Pellitteri advised the Union on May 10 of improper conduct committed by the pickets (General Counsel's Exhibit 2); Machkovitz and Eaton were specifically advised by responsible officials of the State of Wisconsin and the hospital on May 10 and 11 of the appeals to hospital employees; the pickets frequently reported to them on what they were doing and sought their advice; and on May 28, the Union assisted Strait after his arrest for the egg-throwing incident. The Union was thus fully aware of the conduct of the pickets, yet it took no effective action to curtail it and imposed no restriction or penalty on the perpetrators. "Merely forbidding coercive conduct will not suffice to relieve of responsibility therefor."' The Union argues that the General Counsel is in effect demanding that any picket who may have committed an act in violation of Section 8(b)(1)(A) should be barred from further picketing. It points out that in this case it would force the Union to abandon its strike. Of course, 'The Union does not deny its responsibility for the decision announced by Machkovitz to Pellitteri customers to have the strikers picket the containers on the premises of the customers while no Pellitteri employees or trucks were present, which was in effect between May 10 and 20 The issue whether Machkovitz' oral statements and letters to the customers and the subsequent picketing of the customers was violative of Section 8(bX4)(B) will be considered in the following section of this Decision 'Teamsters Local 783, 160 NLRB 1776, 1779 See also, Teamsters Local 115, 157 NLRB 1637, 1642, United Automobile etc Workers of America, AFL-CIO, 146 NLRB 1349, 1356, and New Power Wire and Electric Corp v N.LRB , 340F.2d71(CA 2). no such contention has been made, and all that the General Counsel proposes, and all that I hold, is that a union which calls a strike and authorizes picketing must retain control over the pickets in whatever manner it deems necessary, in order to insure that they do not act improperly. If a union is unwilling, or unable, to take the necessary steps to control its pickets, it must then bear the responsibility for their misconduct. I have considered the cases which Respondent cites in its brief to support its contention that it was not responsible for the illegal conduct of the pickets. Insofar as they are apposite to the facts in this case, they support the General Counsel's opposing contention, and my own conclusion, that the Union was responsible for the entire course of conduct engaged in by the pickets Concluding Findings Section 8(b)(1)(A) makes it an unfair labor practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights guaranteed in Section 7, among which is the right not to join a strike in which other employees participate. I shall consider the various incidents alleged to be violative, in the order in which I have already set them out previously, without repeating the facts which are in effect admitted by Respondent. 1. Throwing something at Schiller's car, May 6. Although Schiller did not actually see Severson or anyone else throw anything, I am satisfied and find that one of the strikers threw the object which dented Schiller's car. There is no question but that such an act has a coercive and restraining effect on nonstrikers by its demonstration of harassment and implied violence.' 2. Storkson's attempted job application on May 8. Cowell told Storkson that he would have to pass the picket line to get to the office, after Storkson said he was going to apply for a job. At that point other strikers walked up to them. The General Counsel argues that Cowell's remark and the approach of the strikers was a threat of physical harm. I do not agree. Cowell and the other strikers were, of course, opposed to having Storkson apply for a job as a replacement for them, but they had not, from Storkson's own testimony, yet menaced him by word or gesture. If they had prevented him from entering, it would have been a violation of Section 8(b)(1)(A), but I view Storkson's decision not to go past the pickets then, as an exercise of discretion on his part (based perhaps on his simultaneous decision to telephone for an appointment) rather than as a response to a threat I shall therefore recommend dismissal of that particular allegation. 3. Threatening and following nonstrikers On May 9, Storkson's first day on the job, a group of pickets followed him home after he left work, and on June 3, Zimmerman was also followed part way home On May 23, a picket questioned Varholik in an intimidating manner about where he lived, and whether he wanted to fight. I am satisfied that Varholik was being threatened by the picket that he might be followed home and might possibly have to fight before he got there. I find that all three incidents were coercive of the rights of Varholik, Zimmerman and Storkson, and of other Pellitteri employees, and were violative of Section 8(b)(1)(A). 4. The egg-throwing incidents of May 28 No extended discussion is necessary to conclude that throwing objects 'International Union of Electrical etc Workers, 134 NLRB 1713, 1723 DRIVERS LOCAL 695 759 at nonstriking employees while they ate driving or sitting in vehicles is extremely dangerous and inherently coercive of their rights. I find that the Union violated Section 8(b)(1)(A) when the strikers threw eggs at trucks which were driven or controlled by Pellitteri employees. 5. On May 23, Varholik had some difficulty in backing up his truck because a carload of strikers was behind him, and on May 24, a striker told Swanosk i, who had already decided not to go back to work for Pellitteri, that he had better quit if he knew what was good for him. I am dubious whether either of these incidents amounts to a violation. As for Varholik's being blocked momentarily from backing up, the fact is that he could have gone forward without restraint or any particular delay. As for any threat to Swanoski, the fact is that he was no longer a Pellitteri employee, and had no intention of applying for work when he was approached by the striker. Having neither the status of an employee or an applicant, it seems to me that the statement which was made to Swanoski was not in fact coercive as to him. In any event, these two incidents would be cumulative to the other findings of violations I have already made, and would therefore not affect the scope of my Order. Section 8(b)(4)(B) prohibits unions or their agents from inducing employees of secondary or neutral employers to refuse to handle goods or perform services, and from threatening, restraining or coercing secondary employers, where an object is to force or require a secondary employer to cease doing business with the primary or disputing employer. As the Board and the courts have repeatedly pointed out, these provisions are aimed at shielding unoffending employers and others from pressures in controversies not their own. But as the proviso to Section 8(b)(4)(B) makes explicit, however, a primary strike or primary picketing does not become unlawful by virtue of anything contained in that section. In general, union activity is primary when it occurs at the situs of the main dispute, which is usually the primary employer's own premises, and seeks no more than to disrupt the normal operations of his business.' But when the activity is extended beyond the situs of the primary dispute as to the premises of a neutral employer, it is ordinarily secondary ' ° The activities which are alleged in the complaint as violative of Section 8(b)(4)(B) are the Union's threats to picket, and the picketing which took place, at the premises of secondary employers at times when no Pellitteri trucks or nonstriking employees were present. The General Counsel contends that an object of such activities was to force or require the secondary employers to cease doing business with Pellitteri. The Respondent concedes that the pressure it brought to bear against secondary employers was intended to terminate the established business relationships between Pellitteri and its customers. It argues, however, that such pressures were imposed only in an effort to perfect its primary strike against Pellitteri, by inducing employees of the customers to cease performing any services related to trash collection. It disavows any intent to induce secondary employees to cease performing all services for their employers; but it is entitled, it argues, to induce secondary employees not to perform any services related to trash collection, by the continuous posting of pickets adjacent to the Pellitteri equipment, in readiness to force a confrontation as to any activity related to trash collection. As ` I understand the Union's argument, it is that the situs of its dispute with Pellitteri is wherever Pellitteri equipment is to be found, and that any secondary employee whose work for his employer is related to trash collection may properly be induced to cease such work. The argument blurs the relatively simple distinction between appeals to primary or secondary employees at the primary employer's premises, and appeals to secondary employees at the secondary employer's premises The Union argues that it has a right to disrupt a business relationship between a primary and a secondary employer if the primary employer furnishes a service to the secondary which requires the occasional presence of primary employees on the latter's premises. The lending or rental of equipment, accompanied by an obligation of the lender to keep the equipment in operating condition, is a common and well-recognized form of business relationship - witness the rental and maintenance of data processing equipment and photo copying machines - but I do not think it can reasonably be said that such equipment is the situs of dispute for a union which is striking the owner-lessor of the equipment, at times when it is being used in the normal course of the secondary employer's business and is not being serviced by primary employees. In this case, it seems to me, the sites of the Union's dispute with Pellitteri is wherever Pellitteri employees are engaged in carrying out their employer's normal functions, that is, using dump trucks to remove trash from their customers' premises." It is not the containers into which secondary employees stow trash in the course of their regular duties for their employers which is the situs of the dispute, nor can the containers be picketed as a symbol for the actual presence of primary employees and their trucks. I find, based on the undenied testimony related above that the following actions occurred and were violative of Section 8(b)(4)(ii)(B): the threats to picket Fish Building Supply Company, Wisconsin Telephone Company, Madison Gas & Electric, Decar Plastics and University Hospital, unless they ceased using Pellitteri's 'trash removal service. I also find, based on undenied testimony, that the following actions occurred and were violative of Section 8(b)(4)(i)(B): picketing at times when no Pellitteri nonstriking employees were present, at Fish Building Supply Company on May 7, at University Hospital on May 10 and 11, and at Decar Plastics on May 13 Kohl's-Winnebago was picketed on May 13 and 14 when a Pellitteri truck was on the premises, but I find, nevertheless, that the picketing was unlawful because it took place at the store's public entrances which are located about 100 yards from the service entrance where the truck was parked. Picketing also occurred at this store on May 15 when no Pellitteri truck or employees were present, and is found to be unlawful. Kohl's University Avenue store was picketed on May 6, near the service entrance while a Pellitteri truck was making a pickup. One of the pickets asked a store clerk if 'N L R B. v International Rice Milling Co .. 341 U S . 665, Local 761, Electrical Workers v NL.R B (General Electric Corp ), 366 U.S 667, and Steelworkers v N L R B. (Carrier Corp ), 376 U.S 492. 10NL R.B. v. United Brotherhood of Carpenters ( Wadsworth Bldg Co.), 184 F.2d 60 (C A 10), and N L R B v United Hatters etc. Union, 286 F 2d 950 (C.A 4). "Teamsters, Chauffeurs & Helpers Union, Local 279 ( Wilson Teaming Company), 140 NLRB 164, 166-167, Local 25, International Brotherhood of Teamsters, etc. (J. C. Driscoll Transportation, Inc ), 148 NLRB 845; and National %faritime Union of America, AFL-CIO (Farmers Union Grain Terminal Association ), 152 NLRB 1447, enfd 367 F 2d 171 (C.A 8) 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the store employees would honor their picket line, and would stop Pellitteri from making trash pickups. I find no violation of Section 8(b)(4)(B) either in the picketing or in the queries IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Company described in section 1, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and 8(b)(4)(B) of the Act, I shall recommend that it cease and desist therefrom , and that it take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. By restraining and coercing employees of Tony Pellitteri Trucking Service, Inc. in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) of the Act. 2. By inducing or encouraging individuals employed by Fish Building Supply Company, Kohl's Food Stores, University Hospital, and Decar Plastic Corporation to refuse in the course of their employment to perform services for their employers, and by threatening, coercing and restraining Fish Building Supply Company, Kohl's Food Stores, University Hospital, Decar Plastic Corporation, Wisconsin Telephone Company and Madison Gas and Electric Company, with an object in either case of forcing each to cease doing business with Tony Pellitteri Trucking Service, Inc., the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in the case I recommend, pursuant to Section 10(c) of the Act, that the Respondent, Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, IBT, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees of Tony Pellitteri Trucking Service, Inc., in the exercise of their right to refrain from joining or supporting any strike called by Respondent against the Company, by harming or threatening to harm employees, or by damaging or threatening to damage property. (b) Inducing or encouraging any individual employed by Fish Building Supply Company, Kohl's Food Stores, University Hospital or Decar Plastic Corporation, or any other individuals employed in an industry affecting commerce, to refuse, in the course of their employment, to perform any services, and from threatening, coercing or restraining the named employers, and Wisconsin Telephone Company, Madison Gas and Electric Company, or any other person engaged in commerce or in an industry affecting commerce, with an object in either case of forcing or requiring all of the above, or any other person or employer to cease doing business directly or indirectly with Tony Pellitteri Trucking Service, Inc. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in its offices and meeting halls copies of the attached notice marked "Appendix."" Copies of such notice, to be furnished by the Regional Director for Region 30, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintamed by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 30, for posting by Fish Building Supply Company, Kohl's Food Stores, University Hospital, Decar Plastic Corporation, Wisconsin Telephone Company, Madison Gas and Electric Company, and Tony Pellitteri Trucking Service, Inc., such employers being willing, at all places where notices to their respective employees are customarily posted. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, what steps the Respondent has taken to comply herewith." IT IS FURTHER RECOMMENDED that those allegations in the complaints relating to incidents found herein not to constitute violations of the Act be dismissed. "In the event that this Recommended Order be adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decision of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " "In the event that this Recommended Order be adopted by the Board this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL MEMBERS OF DRIVERS, SALESMEN, WAREHOUSEMEN, MILK PROCESSORS, CANNERY, DAIRY EMPLOYEES AND HELPERS UNION LOCAL 695, IBT Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: DRIVERS LOCAL 695 WE WILL NOT restrain or coerce employees of Tony Pellitteri Trucking Service, Inc., in the exercise of their right not to join or support any strike by us against that Company, by harming or threatening to harm them, or by damaging or threatening to damage property. WE WILL NOT induce or encourage any individual employed by Fish Building Supply Company, Kohl's Food Stores, University Hospital, or Decar Plastic Corporation, or any other individuals employed in an industry affecting commerce, to refuse in the course of their employment to perform any services, nor will we threaten, coerce or restrain the employers named above, and Wisconsin Telephone Company, Madison Gas and Electric Company, or any other person engaged in commerce or in an industry affecting commerce, where, in either case, an object is to force or require the employers named above, or any other employer, to 761 cease doing business directly or indirectly with Tony Pellitteri Trucking Service, Inc. Dated By DRIVERS, SALESMEN, WAREHOUSEMEN, MILK PROCESSORS, CANNERY, DAIRY EMPLOYEES AND HELPERS UNION LOCAL 695, IBT (Labor Organization) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2nd Floor Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin 53203 Telephone 272-3872, Area Code 414.