Local 559, Teamsters

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 559, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica and Atlantic Pipe Corporation. Case l-CC-612 June 25, 1968 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On December 21, 1967, Trial Examiner Morton D. Friedman issued his Decision in the above-enti- tled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the com- plaint be dismissed in its entirety , as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief, and Respondent filed a brief in support of the Trial Ex- aminer's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 , briefs, and the entire record in the case , and hereby adopts the findings, conclusions , and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE of the Board, against Local 559, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , herein called the Union or the Respondent , alleging viola- tions of Section 8(b)(4)(i) and (ii)(B) of the Na- tional Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer to the aforementioned complaint, the Union, while admitting certain of the allegations thereof, denied commission of any unfair labor practices. Pursuant to notice , a hearing was held before me in Hartford , Connecticut. All parties were present and afforded full opportunity to be heard, to in- troduce relevant evidence , to present oral argu- ment, and to file briefs . Oral argument was waived. Briefs were filed by counsel for the General Coun- sel and the Union. Upon consideration of the entire record of this case, including the briefs of the parties , and upon my observation of the demeanor of each of the wit- nesses testifying before me , I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTIONAL FACTS Atlantic, a Connecticut corporation, with its principal office and place of business located in the city of Plainville, county of Hartford, and State of Connecticut, is engaged in the manufacture and sale of concrete pipe. In the course and conduct of its operations, Atlantic annually sells and ships concrete pipe of a value in excess of $50,000 to lo- cations outside of the State of Connecticut. This was true of the fiscal year immediately preceding the issuance of the complaint herein , a representa- tive period. White Oak Excavators, Inc., herein White Oak, a Connecticut corporation, which maintains its prin- cipal office and place of business in the city of Plainville , Connecticut, is engaged as a general con- tractor in the building and construction industry. During the fiscal year immediately preceding the is- suance of the complaint herein, White Oak purchased and received building materials of a value in excess of $50,000, which were shipped to White Oak directly from points outside the State of Connecticut. Accordingly, I find and conclude that Atlantic and White Oak are employers engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdic- tion in this proceeding. MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed on May 16, 1967, by Atlantic Pipe Corporation, herein called Atlantic, the Regional Director for Region 1 of the National Labor Rela- tions Board, herein the Board , issued a complaint on June 20, 1967, on behalf of the General Counsel II. THE STATUS OF THE RESPONDENT The Union admits, and I find, that it is a labor or- ganization within the meaning of Section 2(5) of the Act. 172 NLRB No. 35 LOCAL 559, TEAMSTERS 269 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue As noted above, Atlantic manufactures, sells, and ships concrete pipe to various customers. The deliveries of this pipe are made on flat -bed trailers owned by Atlantic , which trailers are towed by tractors owned by White Oak and driven by mem- bers of the Union who are nominally employees of White Oak. There are a number of other aspects of interrelation between Atlantic and White Oak which are set forth below in detail. Since the spring of 1967 the Union has been en- gaged in a labor dispute with White Oak. In support of this dispute , the Union has picketed the Atlantic facilities. The complaint alleges, in substance, that this picketing constitutes a secondary boycott within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act. The Respondent defends its picketing of the Atlantic facility on the basis that Atlantic is not a neutral employer . In substance, the Respondent contends that Atlantic and White Oak are so interrelated as to be a single employer within the meaning of the Act and that therefore Atlantic is an ally of White Oak; that the Union has and had in effect at the time of the picketing an oral con- tract with Atlantic covering the drivers of the trac- tors which haul the Atlantic trailers and that there- fore Atlantic is the employer of these tractor drivers and is not a neutral ; and, finally, that Atlan- tic is at least a coemployer of these tractor drivers. Thus, the principle issue of the case is whether Atlantic is a neutral employer entitled to the pro- tection of Section 8(b)(4) of the Act. B. The Facts Atlantic was organized in 1962 and, since early in 1963 , has been actively engaged at Plainville, Connecticut, in the manufacture and sale of concrete pipe . Its officers are John E . Toffolon, president and treasurer , and Roger L. Toffolon,, vice president and secretary . Its stockholders are John and Roger Toffolon and the estate of Louis Toffolon, each holding one third of the shares. At- lantic 's board of directors are also John and Roger Toffolon and the administrator of the estate of Louis Toffolon. White Oak, which has been in the heavy and highway construction business for about 30 years, with its offices and a yard at Plainville , has as its of- ficers Roger L . Toffolon , president and treasurer, and John E. Toffolon, vice president and secretary. The stockholders are John and Roger Toffolon, 24 percent each , the estate of Louis Toffolon , 26 per- cent, Florence Toffolon, 25 percent , and Richard Toffolon, 1 percent. The board of directors of White Oak, as in the case of Atlantic , are John and Roger Toffolon and the administrator of the estate of Louis Toffolon. Another Toffolon corporation is Connecticut Sand and Stone Corporation ( herein Connecticut Sand ) of West Hartford , Connecticut, which is en- gaged in the sand, stone, aggregate , and ready- mixed concrete business. John E. Toffolon is pre- sident and treasurer of that firm and Roger L. Tof- folon is vice president and secretary . Each of these individuals holds 42-1/2 percent of the stock of Connecticut Sand, the estate of Louis Toffolon owns 7-1 /2 percent,and Norman Toffolon owns 7- 1/2 percent. The board of directors of Connecticut Sand are John E . and Roger L. Toffolon and a Phil- lip Romano.' Although the yards of both Atlantic and White Oak are located in Plainville, the entrances to each are separated by about 1 mile and the yards are further separated by a river which runs between the backs of the two yards. Thus, there is no physical connection between the facilities of Atlantic and White Oak. In its operations , Atlantic employs laborers who are represented by Laborers Local 611 , Laborers International Union of North America, AFL-CIO, with whom Atlantic has a collective-bargaining agreement. None of the employees of Atlantic are members of or represented by the Respondent herein, as far as the record shows . None of the em- ployees of Atlantic work for or perform any ser- vices on behalf of White Oak. The day-to-day operations of Atlantic are conducted by Wilbur Tolliver, the general manager . Tolliver does the hir- ing, firing, and laying off and conducts the general day-to-day labor relations of Atlantic. With regard to the most recent laborers contract with Atlantic, both Roger and John Toffolon represented Atlan- tic, with Tolliver also participating in making recommendations for negotiation. On the other hand, White Oak employs drivers and operating engineers. The drivers are represented by the Respondent . Both the operating engineers and the teamsters are covered by con- tracts between their respective unions and the Con- necticut Labor Relations Division of New England Road Builders Association , of which organization White Oak is a member . In the most recent negotia- tions with the Union, a negotiating committee from the Association negotiated with the Teamsters. Neither of the Toffolons were members of that committee, but Roger Toffolon, as a member of the Labor Relations Division, did participate in the form of advising the negotiating committee. How- ever, Roger Toffolon does conduct the day-to-day business of White Oak and, as such, is in charge and has supervision of White Oak's labor relations generally. I Other Toffolon family corporations are Connecticut Cartridge, which is wholly owned by the estate of Louis Toffolon, the deceased father of John and Roger, and Industrial Structures, whose stock is held by the estate of Louis Toffolon and Norman Toffolon. Neither John nor Roger Toffolon owns shares in either of these two corporations. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as business relations are concerned, White Oak is a customer of Atlantic to the extent that Atlantic sells to White Oak about 9 percent of its products . In such instances , White Oak is treated the same as any other customer and is billed and charged in the same manner. Connecticut Sand is managed on a day-to-day basis by Gordon Ottman who is responsible not only for the day-to-day operations of the business but also for the day-to-day labor relations. Atlantic purchases from Connecticut Sand all of its sand and aggregate requirements . Atlantic purchases its concrete on the open market from various firms. The percentage of Connecticut Sand 's business with Atlantic is quite small , amounting to perhaps 2 percent a year. In the case of such sales, Connec- ticut Sand treats Atlantic as it does any other customer and Atlantic is billed and charged the same as any other customer.2 Except for the use of White Oak tractors and drivers to haul Atlantic trailers as hereinafter more fully detailed, there is no interchange of employees between any of the three corporations nor is there any interchange of supervision . The three corpora- tions are conducted separately insofar as their busi- nesses are concerned . They have separate payrolls, separate account books , separate bank accounts, and separate tax returns . Even their clerical em- ployees are located on their own individual premises. However, White Oak leases certain data processing equipment which is located at the White Oak office in Plainville . All of the billing and the payroll processing for all of the Toffolon corpora- tions including Atlantic , White Oak , Connecticut Sand, Connecticut Cartridge , and Industrial Struc- tures is processed through the data processing equipment located at White Oak's headquarters. But, each of the corporations is separately charged for the time spent in processing its individual busi- ness items. Thus, Atlantic is charged for its propor- tionate time use of the data processing equipment in the processing of Atlantic's bills and payroll records. However, Atlantic's own bookkeeping and charging is done at Atlantic's own offices by Atlan- tic's own clerical employees.3 As heretofore related, Atlantic does not own any tractors or trucks which can be used in the delivery of Atlantic's concrete pipe products. It does own large, flat-bed trailers upon which the pipe is loaded. To effectuate its deliveries , Atlantic has an arrangement with White Oak for White Oak to supply to Atlantic , upon demand, tractors with drivers for the purposes of hauling Atlantic's trailers to Atlantic's customers. This arrangement has been in effect ever since Atlantic first started to manufacture concrete pipe in 1963. At first the drivers who drove the tractors were paid by Atlantic and the tractors used to haul At- lantic 's trailers were housed in Atlantic 's yard. However, this lasted but a short period of time (variously described as several weeks to several months ), when it was discovered to be in error. It should be noted in connection herewith that these tractors and their drivers are and have been utilized for purposes other than the hauling of Atlantic trailers. Thus, they are also used from time to time, and, as necessity requires, for the hauling of White Oak's heavy equipment from job to job. The manner in which the arrangement between Atlantic and White Oak is implemented consists mainly in the cooperation between Cedric Brooks, the superintendent of transportation of White Oak, and Frank D. Anastasio , traffic control manager of Atlantic. Anastasio is a subordinate of Wilbur Tol- liver, general manager of Atlantic . Anastasio is responsible for the routing of trucks and the mak- ing of deliveries of Atlantic's pipe products. It is his practice each afternoon to determine how many tractors and drivers will be necessary to haul Atlan- tic's trailers the following day. When he thus deter- mines this number, Anastasio calls Brooks at White Oak and alerts the latter as to the number of trac- tors and drivers needed for the following day. The following morning , Brooks dispatches to Anastasio the necessary tractors and drivers. When they arrive at Atlantic, the tractor drivers report to Anastasio who supplies them with the bills for the pipe and instructions as to which trailer is to be connected to the tractor together with the destination or destinations of each trailer . If it is necessary, Anastasio will give the driver other in- structions such as a requirement that the pipe be delivered C.O.D. After the tractor, with trailer attached, leaves At- lantic's yard for its ultimate delivery destination, the driver of the tractor may keep in contact with both Anastasio and Brooks by two-way, shortwave radio with which the tractor is equipped . In this manner, he is given necessary instructions from time to time and reports mishaps and other delays to either Anastasio or Brooks . With regard to ac- cidents or equipment failure , however, it would seem that reports of the same are made mostly to Brooks inasmuch as White Oak carries the in- surance for accidents which might occur to the equipment. At the completion of a particular delivery, unless otherwise instructed, the tractor and trailer will return to Atlantic and the driver will report to Anastasio . The latter will either utilize the tractor for a second or possibly even a third delivery or, if there is no further delivery to be made for Atlantic 2 All of the foregoing from credited portions of the testimony of John and Roger Toffolon ' From credited portions of the testimony of John and Roger Toffolon and Norman D. Richard, the data processing manager for White Oak None of this testimony is seriously contested by the Respondent LOCAL 559, TEAMSTERS on that particular day, Anastasio instructs the driver to return to White Oak yard and report to Brooks.4 When the White Oak tractor drivers are engaged in the hauling of Atlantic trailers, they are required to prepare a form , which can be called a log, which indicates the operations of a particular tractor and driver while engaged in hauling for Atlantic, thus showing the deliveries made and the time con- sumed in making the deliveries . This sheet is handed to Anastasio at the end of any particular delivery period before the tractor is sent back to White Oak. In addition to the foregoing form, the White Oak driver must also prepare a separate form which he submits to Brooks which form shows the use to which his particular tractor has been put during any particular workday regardless of whether the tractor was used to haul an Atlantic trailer or to haul heavy equipment for White Oak. With regard to supervision of the tractor drivers, it would seem that Anastasio does not have the authority to directly instruct the White Oak drivers to appear at Atlantic for the purpose of making deliveries . Although drivers Peacock , Carroll, and Mills testified that there had been times when they had been called directly by Anastasio to report to work on a Saturday , which is not a normal work- day, it is apparent that in all of these cases Anastasio did so either because it was too late in the day to have Brooks inform the men to report, or that Anastasio had cleared with Brooks before directly informing these employees. In any event, these occasions were extremely infrequent and would only occur if Brooks was not available to Anastasio or the men could not be reached any other ways In connection with the hauling of Atlantic's trailers by White Oak tractors, Atlantic has agreed to pay and does pay to White Oak for the use of such tractors the sum of $7.50 per hour for the tractor and the driver . This rate has been in effect for the past several years . At first, the rate was higher but Roger Toffolon had it lowered because he deemed the $7 .50 rate to be more equitable. This rate remains unchanged even though the driver is driving on a Saturday or at any other over- time period , and must, therefore, be paid at a higher rate by White Oak. Also, this rate has not been increased despite the fact that the drivers' basic hourly rate has been raised during the period that the rental arrangement has been in effect. It is not a public service commission rate and is merely a private rate established between White Oak and Atlantic. The Toffolons admitted that White Oak does no hauling of the trailers of any firm with White Oak tractors other than Atlantic . Up until the time of 271 the picketing by the Union herein , Atlantic relied completely and solely on White Oak for a supply of tractors and drivers. In other words, White Oak was Atlantic's sole source of transportation for its products. In further connection with the delivery of Atlan- tic pipe products , some of the tractors, perhaps about four or five, used in the making of the Atlan- tic deliveries, although owned, paid for, licensed, and insured by White Oak , bear the name of Atlan- tic. This, according to Tolliver, Atlantic's general manager, was for the purpose of advertising Atlan- tic's products and for giving Atlantic's name some publicity. Atlantic's trailers are all marked with At- lantic's name. Additionally, a number of the tractor drivers who normally haul the Atlantic trailers are required to wear work clothes on which is imprinted Atlantic's name. Also in connection with the fees charged by White Oak to Atlantic, according to Roger Tof- folon the $7 .50 charge per hour to Atlantic permits a 5 percent profit to White Oak. In addition, Atlan- tic trailers are occasionally repaired at the White Oak's yard . For this service White Oak charges At- lantic cost plus a profit of 10 percent. As heretofore mentioned, for many years the White Oak drivers have been represented by th Respondent pursuant to agreements between t Respondent and the New England Road Builders Association of which White Oak is a member. Under those successive agreements , White Oak and the Union maintained a seniority list of drivers. The agreements called for and required only a single seniority list. However, several years before the events herein , White Oak moved into its Plainville yards a number of dump trucks . These were in ad- dition to the tractors already stationed at the Plain- ville yard . According to Roger Toffolon , when this move was made, at the request of the Union Tof- folon and Business Agent Doyle of the Union met for the purpose of resolving problems in seniority which arose by reason of the move of the dump trucks into White Oak's Plainville yard . Following the move of the dump trucks into White Oak's Plainville yard, all of the drivers, according to the then existent contract, were placed on one seniority list. This resulted in a situation where the dump truck drivers were then lowest on the seniority list and would therefore be the first drivers to be laid off and the last to be hired . Although there is con- flicting testimony by Doyle and Roger Toffolon as to how a dual seniority list was finally arrived at, it is an established fact that ultimately , from this discussion, two separate lists were thereafter established and maintained ; this, despite prohibi- tion against the same in the bargaining agreement. ' All of the foregoing from the credited testimony of John and Roger Toffolon, Anastasio , Brooks, and drivers Peacock and Mills 11 From credited testimony of Brooks and Anastasio 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dump truck drivers were and are on one list, the tractor drivers on the other . The lists are not in- terchangeable and drivers from one list cannot "bump" drivers on the other list. Doyle, the union business agent , admitted that the creation of the two separate lists may have resulted in more stable employment for the dump truck drivers . However, he insisted that this is merely a result and not the cause of the dual seniority lists. Instead , he maintained that the reason for the dual seniority list was that he asked Roger Toffolon for a separate contract from Atlan- tic to cover the tractor drivers and that Toffolon refused , stating that it was a mere technicality, and that the way to take care of it was through a double seniority list. Toffolon , on the other hand, testified that it was the Union which desired the dual seniority list and that there was no question of At- lantic ever entering into a contract with the Union to cover the tractor drivers. Toffolon supports this contention by stating that it would make no dif- ference whether they had a single or a double seniority list since if employees with the classifica- tion of tractor drivers were needed for deliveries by Atlantic, all that White Oak had to do was select the employees with the proper classification and as- sign them to that work . This could have been effec- tuated with either a single or a dual seniority list. Although it is not entirely clear, I conclude and find that Toffolon 's version of how the two separate seniority lists were created is the more accurate. This is so, because I am persuaded that as a matter of fact the Union and its members are the chief beneficiaries of this double list and that the list was not created as a substitute for a contract with At- lantic covering the tractor drivers. Thus I find that no unwritten understanding exists that the tractor drivers who work at Atlantic pipe deliveries are At- lantic employees. The foregoing represents the conditions that ex- isted vis-a-vis White Oak, Atlantic, and the Union at the time of the picketing herein . This picketing came about by reason of the fact that White Oak, being a member of the Connecticut Labor Rela- tions Division of the New England Road Builders Association , has had a collective-bargaining agree- ment with the Respondent which agreement ex- pired on May 1, 1967. On May 15, 1967, a strike was called by the Respondent against the Associa- tion and Respondent picketed various members of the Association , including White Oak at Plainville. The picketing was thereafter extended to the Atlan- tic facility . The picketing at Atlantic began on Tuesday, May 16 , and continued until Tuesday, June 20, 1967.6 After the picketing ended , deliveries of Atlantic pipe were made, and continued up to the date of " The end of the picketing came as a result of a temporary injunction pur- suant to Section 10 ( 1) of the Act granted by the United States District Court for the District of Connecticut. this hearing to be made, through the use of tractors of an outside company not related to any of the Toffolon operations and, it is interesting to note, the charge per hour up to the time of the hearing herein for the use of a driver and tractor by the out- side company has been the same as that charged by White Oak, namely $7.50 per hour. C. Concluding Findings Counsel for the General Counsel contends that despite the common ownership of Atlantic and White Oak , there is no such active or actual com- mon control as to exclude Atlantic from the protec- tion of Section 8(b)(4)(i) and (ii)(B) of the Act in regard to the labor dispute between the Union and White Oak. Respondent Union contends that because of the relationship which existed between Atlantic and White Oak through common owner- ship and control, and because of what the Union al- leges as the integrated nature of their delivery operations out of the White Oak yard in Plainville, the two companies are a single enterprise and that the proviso of Section 8(b)(4)(i ) and (ii )( B) would require a dismissal of the complaint filed herein. It is true that common ownership , alone, is not sufficient to cause one of two commonly owned companies to lose the protection of Section 8(b)(4) of the Act in a situation like the one presented by the facts of the instant proceeding . There must be, in addition, such actual or active common control, as distinguished from merely a potential, as to denote an appreciable integration of operations and management policies.' The Union does not disagree with the above prin- cipal nor does it take issue with it. The Union mere- ly contends that the facts in this case are such that sufficient factors are present to cause Atlantic to lose the protection of Section 8(b)(4) of the Act. In other words , the Respondent contends that con- ditions are shown by the facts of this case to con- clude that the two companies may and should be considered as one for the purposes of determining whether the picketing at Atlantic constituted a secondary boycott. I agree. There is much more than common ownership in- volved in the relationship between Atlantic and White Oak. If the record showed no more than that the two companies were commonly owned with common officers and directors, I would not so con- clude. However, I note specifically that although the two corporations have their places of business separate and apart by a distance of approximately 1 mile with a river separating their yards, there is a marked degree of integration at least with respect to one aspect of their activities . And this aspect in- volves the very drivers with whom this proceeding ' Drivers, Gmuffeurr and Helpers Local No. 639 ( Poole's Warehousing, Inc.), 158 NLRB 1281, 1286. LOCAL 559, TEAMSTERS is involved . Thus, although the immediate labor relations on a day-to-day basis of Atlantic are con- ducted by Wilbur Tolliver, general manager of At- lantic, and the general day -to-day labor relations management of White Oak is conducted by Roger Toffolon, the direct supervision of the drivers is en- trusted to neither of these two individuals but rather to the direction of Frank Anastasio, on be- half of Atlantic, and Cedric Brooks, the superinten- dent of transportation for White Oak of behalf of that company . While it may be true that Anastasio cannot initially order White Oak drivers to operate their trucks on behalf of Atlantic , once this permis- sion is given by Brooks and the drivers are assigned to pick up and deliver pipe on Atlantic trailers, their destination, route, and general activity in making such deliveries are directed and *uided by Anastasio, the traffic manager of Atlantic. Atlan- tic's operations so far as deliveries are concerned, are thus wholly dependent upon White Oak with respect to the delivery of pipe, an essential part of Atlantic's business. The record shows that only White Oak tractors were used for the making of such deliveries and that in the making of such deliveries there was joint control over the drivers by both White Oak which controls their original as- signment to the driving and then by Atlantic which actually dispatched the drivers to their ultimate destination and gave them instructions as to where to go. This joint control is not an unusual situation but, as pointed out by the Respondent , is on a day- to-day, hour-to-hour basis . This results in securing a maximum utilization of the equipment and the drivers of White Oak by permitting Atlantic to have what would seem to be first call upon the tractors which Atlantic requires and the drivers to move those tractors. This, in turn, requires the closest type of cooperation between White Oak and Atlan- tic and, indeed, makes one completely dependent upon the other. This is especially true in the case of Atlantic's dependence upon White Oak. General Counsel relies to a great extent on the case of Drivers, Chauffeurs and Helpers Local No. 639 (Poole's Warehousing, Inc.)" to contradict the Respondent's position that Atlantic does not have the protection of Section 8(b)(4) of the Act. Care- ful analysis of that case in conjunction with the in- stant case and a comparison of the facts therein and herein show that the Board in the cited case specifi- cally noted that neither of the two companies in- volved performed the work of the other except in a very coincidental way. There, one company was a warehouse and the other a trucking operation but there were no services performed in the warehouse which were integrated in any manner with the trucking operation and the trucking company did only a very nominal business with the warehouse at which time it was treated like any other customer. In the case at bar White Oak performs a definite " 158 NLRB 1281 273 service for Atlantic and not as a public carrier but as an exclusive carrier for Atlantic . Indeed, so ex- clusive is this relationship that White Oak's officers admitted that White Oak performed no hauling of any company 's trailers other than those of Atlantic and Atlantic's officers (the same individuals) ad- mitted that Atlantic relied completely on White Oak for the performance of this very important aspect of Atlantic 's operations . Thus, I am com- pelled to reject as precedent the Poole's Warehous- ing, Inc., case on which the General Counsel relies so heavily. Additionally, this cooperation and the degree of integration are emphasized not only by the fact that a number of the tractors used by White Oak for the delivery of Atlantic products bear Atlantic 's name, but additionally , as noted above, a number of the employees of White Oak who are used as drivers of these tractors also are required to wear uniforms bearing Atlantic 's name . This would, in my opinion, indicate more than a casual , nonintegrated relation- ship. Furthermore, the rate of $7.50 per hour charged Atlantic by White Oak for the use of the tractors and drivers would seem to be less than an "arms length" rate in view of the hourly rate paid the drivers by White Oak and the further fact the White Oak does not charge additional for overtime work although it must pay the drivers for such over- time. I also consider indicative the fact that the rate has not increased although successive contracts with the Union have required White Oak to pay in- creased wage rates. Additionally , the fact of common supervision or, at least alternative supervision , of the tractor drivers by White Oak and by Atlantic demonstrates that the two corporations are in the very least joint employers of the drivers under Board precedent. In a somewhat different context , the Board has held that a bus company and another company perform- ing janitorial services for the bus company as an in- dependent contractor were joint employers of em- ployees performing janitorial and loading services at the bus company's terminals where both compa- nies shared or codetermined matters governing es- sential terms and conditions of employment.9 Thus, the concept of a joint employer appears to apply in unfair labor practice cases . Although research has revealed no case in which this concept has been ap- plied to a secondary boycott situation , I cannot find any precedent holding that such a concept would not be so applicable. Thus, I find that, as noted above, the interrela- tionship of supervision first by White Oak and then by Atlantic must be considered a major factor in evaluating the relationship between the two compa- nies. I find and conclude that these corporations are in fact as well as in law joint employers within the meaning of the Board precedent above cited. 9 The Greylwund Corporation , etc., 153 NLRB 1488, enfd 368 F.2d 778. 354-126 O-LT - 73 - pt. 1 - 19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find and conclude that the picket- RECOMMENDED ORDER ing at Atlantic 's yard by the Respondent Union was part of the Union's lawful primary activities directed against Atlantic as well as White Oak. Upon the basis of the foregoing findings of fact Such picketing being primary in nature is not a and conclusions of law and upon the entire record violation of Section 8(b)(4)(i) and (ii)(B) of the in this case it is recommended that the complaint Act. Accordingly, I shall recommend that the com- heretofore filed herein be, and the same hereby is, plaint herein be dismissed. dismissed.