Teamsters, Chauffeurs, Warehousemen & Helpers, Loc. 386

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 1037 Teamsters, Chauffeurs, Warehousemen & Helpers, Local 386, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and R. P. B. Trucking, Inc. Case 20-CC-734 July 8, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 14, 1968, Trial Examiner George Christensen issued his Decision in the above-enti- tled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respon- dent filed an answering brief. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. The complaint alleged that Respondent violated Section 8(b)(4)(B) by invoking pressures against Yolo Transportation Company Incorporated, in furtherance of an alleged dispute with R. P. B. Trucking Incorporated. We affirm the Trial Ex- aminer's dismissal of the complaint. In so doing, we rely upon the General Counsel's failure to establish that Respondent's conduct with respect to Yolo was for any objective other than enforcement of ar- ticle 17 of the subsisting collective-bargaining agreement between Respondent and a multiem- ployer association, of which Yolo is an employer- member. Article 17, in our opinion, is a lawful wage standards provision, designed to assure that Yolo and other trucking concerns bound by the multiemployer contract do not perform unit work through outside contractors whose wage and fringe benefit costs are inferior to those of Yolo and other employers within the multiemployer unit. Our dissenting colleague finds Respondent's ob- jective with respect to Yolo to have been secondary and unlawful. In doing so, he relies upon two alter- native grounds. He first asserts that the wage stan- dards clause could not lawfully be imposed upon the relationship between Yolo and R. P. B. Despite the absence of any allegation that article 17 is proscribed by Section 8(e), the clause is found secondary on grounds that the work performed by R. P. B. was not "fairly claimable" and, as such, not subject to lawful regulation by an otherwise valid wage standards clause. The dissent's view that R. P. B. was not perform- ing unit work is based upon the fact that R. P. B. was engaged in a segment of Yolo's work which was seasonal in nature, that Yolo had neither the trucks nor manpower to perform the work itself, and that Yolo had subcontracted this work for many years. In our opinion these factors do not negate Respondent's legitimate and primary in- terest in regulating the terms under which this work was performed by nonunit employees. R. P. B. was undeniably engaged in "overflow" work or work that Yolo itself did not, at that time, have equip- ment to perform. However, the hauling contracted by Yolo to R. P. B. entailed the same skills as held by Yolo's permanent work force and did not differ significantly from that historically performed in the multiemployer unit. Indeed, Yolo's own work force was occasionally called upon to perform the seasonal operations normally contracted out to sub- haulers like R. P. B. Our dissenting colleague con- tends that Yolo's seasonal truck driving work was not fairly claimable by the principal unit in this case because the subhaulers "merely supplemented the work" of Yolo's employees during the rush season. For this reason, the dissent asserts, the overflow work in "a very real sense" was not "'fairly claima- ble by the bargaining unit,"' citing Meat and Highway Drivers, Local Union No. 710 [ Wilson & Co.] v. N.L.R.B., 335 F.2d 709, 713 (C.A.D.C.). In that case, however, the court quoted with approval the minority Board opinion to the effect that work closely allied and, in part, identical to that per- formed by unit employees must be considered unit work even though it had never been customarily performed by unit members. The court concluded that overflow truck driving work, resulting from the obsolescence of trucks, failure to buy, or to lease new equipment, or the like, was a proper subject for a union standards subcontracting clause because it "would at least remove from the em- ployer the temptation of cheap labor through sub- standard contractors." Moreover, Highway Truck Drivers and Helpers, Local 107 (S & E McCormick, Inc.), 159 NLRB 84, reversed on other grounds sub 172 NLRB No. 102 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nom. A . Duie Pyle, 383 F.2d 772 (C.A. 3), is hardly authority for the conclusion that the Union's con- duct in the instant case was unlawful . There the subcontracting clause , identical to one found lawful by the court in Truck Drivers Union Local No. 413 [Patton Warehouse, Inc., and Brown Transport Corp.] v. N L.R.B., 334 F.2d 539 (C.A.D.C.), required adherence to wages, hours , and conditions of employment " established by labor unions having jurisdiction over the type of work performed." Over the disagreement of two Board Members the principal Board opinion adopted as its own the court's interpretation that such a subcontracting clause was primary in nature and therefore not violative of Section 8(e). It would seem to us, a for- tiori, that the clause in the instant case, limited to wages, hours, and conditions of employment for "work covered by this agreement," is a lawful work preservation clause and that the Union was lawfully entitled to enforce it. We point out that in S & E McCormick the work cognizable under the subcon- tracting clause included extra work when the regu- lar employees were all working and overflow loads. In the instant case the work subcontracted was extra or seasonal work , identical to that performed by the regular employees . We see no distinction between seasonal and overflow or extra work available when regular employees are fully occu- pied . Accordingly, we conclude in disagreement with our dissenting colleague , that the clause in- voked against Yolo with respect to R. P . B. was pri- mary rather than secondary in its application. The dissent , alternatively , would find a secondary objective on the theory that Respondent, in requesting Yolo's adherence to article 17, was mo- tivated by its past unsuccessful efforts to secure recognition from R. P. B. In this respect, the dissent notes that in the spring of 1967, Respondent and a sister local unsuccessfully sought to organize R P. B. Against this background , the dissent cites the following to support an inference that Respondent utilized article 17 in retaliation against R. P. B.: (1) Respondent delayed enforcement of the clause against R. P. B. until after all possibilities for or- ganizing R. P. B. had been foreclosed , and (2) Respondent failed to seek enforcement of the clause as against Yolo 's other subhaulers . However, as the record does not show that Respondent was aware of Yolo's retention of R. P . B. as a subhauler at any time prior to its enforcement of the clause, the timing of Respondent 's action can hardly be re- lated to the past effort to organize R. P. B. Also without record support is the finding that Respon- dent had no interest in enforcing the clause against Yolo's subhaulers other than R. P. B. Thus, the record shows that Respondent questioned Yolo concerning Bradley and Birtschi , a trucker, and also requested a list of all subhaulers engaged by Yolo when the inquiry concerning R. P. B. was made . Respondent 's investigation of this list showed that only one other subhauler , Forest Freeze, was situated similarly to R. P . B. in that they were the only two subhaulers furnishing a significant number of trucks to Yolo. Respondent 's failure to take ac- tion against Forest Freeze is adequately explained by the fact that the latter was signatory to Respon- dent 's recent agreement and hence was presumably complying with unit standards . Furthermore, the record clearly shows that R. P. B.'s employment benefits generally were substandard to those of Yolo. Respondent knew this but was still reluctant to invoke article 17 until it could ascertain whether R. P. B. was matching unit labor costs for work per- formed on behalf of Yolo. In the circumstances, and as there is no evidence that Respondent had a reasonable basis for suspecting that any Yolo sub- haulers other than R. P. B. were operating at less than unit standards , Respondent 's request that Yolo obtain information on standards paid by R. P. B. while performing on Yolo contracts was neither in- dicative of a discriminatory application of article 17 nor adequate to refute the clear evidence that Respondent 's sole objective was the enforcement of a lawful clause designed to protect the standards under which unit work was performed by Yolo's subcontractors. For the foregoing reasons , we affirm the Trial Ex- aminer and shall dismiss the complaint in its en- tirety. 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. CHAIRMAN MCCULLOCH, dissenting: For the following reasons, I dissent from my col- leagues ' decision to adopt the Trial Examiner's recommendation for the dismissal of the complaint. Yolo Transportation Co., Inc. (Yolo), is a trucking company which employs approximately 12 regular drivers and owns the same number of trucks . From July through October, Yolo is primarily engaged in hauling agricultural produce from fields to canneries. During this period, it in- creases its normal number of drivers and trucks by hiring as many as 80 additional drivers and trucks. It secures the additional drivers and trucks by en- TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 1039 tering into subhaul contracts with owner-drivers, and with other haulers who may have as many as eight trucks. R. P. B. Trucking, Inc. (R. P. B.), the Charging Party, had for 5 years preceding 1967 supplied Yolo with from four to seven trucks and drivers during the rush season. Yolo's drivers are represented for collective-bar- gaining purposes by Respondent. Yolo is a member of California Trucking Association which has a col- lective-bargaining contract with Respondent. Arti- cle 17 of that contract provides: For the purposes of this agreement the Em- ployer agrees to refrain from using the services of any person who does not observe the wages, hours, and conditions of employment herein set forth for all work covered by this agree- ment. In the event the Employer violates this Article, the Union shall be free to take economic action upon twenty-four (24) hours notice notwithstanding any other provisions contained in this agreement. Prior to 1967, R. P. B.'s drivers were not or- ganized. During March and April 1967, Respon- dent's sister Local 439, which is a member of the same Teamsters Joint Council as Respondent, picketed R. P. B. in an unsuccessful attempt to bring about such organization. In late April, on the basis of a card check, R. P. B. recognized the Seafarers Union as the representative of its drivers. In May Local 439 renewed its picketing of R. P. B. Thereupon, R. P. B. filed unfair labor practice charges against Local 439 alleging a violation of Section 8(b)(7)(A). In retaliation, Respondent and Local 439 filed unfair labor practice charges against R. P. B. and the Seafarers. The Board's Re- gional Director dismissed the Teamsters' unfair labor practice charges in July. Respondent and Local 439 appealed the dismissal to the General Counsel of the Board, who upheld the Regional Director's action in a ruling issued on August 4. Meanwhile the Regional Director issued a com- plaint against Local 439 on the basis of R. P. B.'s unfair labor practice charges (Case 20-CP-251). A Trial Examiner found in this case that Local 439, as late as May 18, 1967, had unlawfully picketed R. P. B. with an object of forcing or requiring R. P. B. to recognize and bargain with Respondent Union at a time when R. P. B. had lawfully recognized the Seafarers. When no exceptions to the Trial Ex- aminer's Decision were filed, the Board on Febru- ary 19, 1968, adopted the Trial Examiner's Decision. Early in September, after ascertaining that R. P. B. was working for Yolo, representatives of Respondent asked Yolo to secure a letter from R. P. B. certifying to the wage rates, health and wel- fare contributions, pension contributions, and layover compensation being paid by R. P. B. to its drivers working on the Yolo job, so that Respon- dent could determine if R. P. B. was meeting the standards required by article 17, set forth above, in the collective-bargaining contract to which Yolo was a party.' Respondent threatened to picket Yolo unless the information requested was received by a certain date. Respondent also told its steward at the Yolo job that if it did not receive the requested in- formation, it might picket Yolo's gate, and that the employees were to respect the picket line. When Yolo failed to receive the information which it had requested from R. P. B., it cancelled its contract with the latter. The complaint alleges that Respondent induced the employees of Yolo to engage in a strike, and threatened Yolo, with an object in both cases of forcing Yolo to cease doing business with R. P. B. or forcing R. P. B to recognize and bargain with Respondent, although the latter has not been cer- tified as bargaining representative of R. P. B.'s em- ployees. The Trial Examiner found that Respondent threatened "to picket Yolo and did induce or en- courage an employee of Yolo to cease work for the purpose of causing Yolo to cease doing business with R. P. B." Respondent has not filed exceptions to this finding, and, in any event, it is a reasonable one based on all the evidence. This finding, that an object of Respondent's con- duct was to cause Yolo to cease doing business with R. P. B., establishes a violation of Section 8(b)(4)(B ),2 unless, as contended by Respondent, the aforementioned article 17 is lawful and sanc- tioned its conduct. The General Counsel has not at- tacked the legality of article 17 in his complaint. But he has not on that account conceded its legality either per se or in its application to the situation as 'The Trial Examiner found that Respondent was familiar with the terms of the R P B -Seafarers collective-bargaining contract and knew that the wage and other economic provisions thereof were inferior to those of the Yolo-Local 386 contract He speculated, however , without any evidentiary support , that R P B might be granting economic benefits to the R P B employees on the Yolo job in excess of those set out in the R P B - Seafarers contract t Section 8(b)(4)(i) and (u )( B) provides that it shall be an unfair labor practice to induce employees to engage in a strike, or to threaten , coerce, or restrain employers where in either case "an object thereof "' is (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer or to cease doing business with any other person, or forc- ing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such em- ployees under the provisions of Section 9 (Emphasis supplied ] It is sufficient to spell out a violation of Section 8(b)(4)(B ) that the labor organization had as an object one of those specified in that section N L R B v Denver Building and Construction Trader Council, 341 U S 675 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it existed with respect to Yolo's business dealings with R. P. B. Without passing on the question of the per se legality of article 17, I am satisfied in the facts of this case that as applied to the R. P. B. situation , its enforcement against Yolo did not have a legitimate work preservation objective and there- fore is not a valid defense to Respondent 's conduct. We have said that a union standards clause is lawful on the assumption that "in the absense of any indication to the contrary ... [ the] scope [of the clause ] is limited to the contracting out of work which otherwise would be performed by members of the bargaining unit."' Although article 17 is labeled "SUBCONTRACTING," the evidence is that as applied to Yolo 's business relationship with R. P. B. it did not have a unit work preservation function, but that Respondent utilized it "to satisfy union ob- jectives elsewhere."' Yolo employed approximately 12 drivers and the same number of trucks on a year -round basis. Dur- ing the few months of the crop-gathering season, it had to increase the number of drivers and trucks manyfold. To handle this seasonal increase of its business, it had for many years , apparently without protest from Respondent, followed the practice of employing owner-drivers and subhaulers such as R. P. B. There was never any question of substituting drivers of subhaulers for Yolo's own permanently employed drivers. The former merely supplemented the work of the latter during the rush season. In a real sense , therefore, Yolo did not "subcontract" to R P B. work "fairly claimable by the bargaining unit," and thus article 17 did not serve to preserve such jobs for the bargaining unit employees s That Respondent in coercing Yolo to cease doing business with R P. B. was not really concerned about any possible work preservation aspect of arti- cle 17, but was motivated by its unsuccessful efforts to secure recognition from, and a collective-bar- gaining contract with, R. P. B. is evidenced by the sequence of events. Thus Respondent made no ef- fort to enforce article 17 until after the Regional Director had issued a complaint against Respon- dent in Case 20-CP-251, and the General Counsel had upheld the Regional Director's dismissal of un- fair labor practice charges against R P B. and the Seafarers, which ended the immediate possibility of securing recognition from R. P. B. by direct action against that Company. Further, as found by the Trial Examiner, Respondent made no effort simul- taneously to enforce article 17 against other sub- haulers of Yolo who were in the same position vis- a-vis Yolo as was R. P B. It seems to me , therefore, that Respondent acted as it did against Yolo, not because of concern about the work of Yolo's em- ployees, but because it had been frustrated in its direct effort to organize R. P. B.'s employees, and in retaliation resorted to pressure against Yolo, a neutral , to bring about a cessation of business between Yolo and R. P. B. Such conduct is clearly forbidden by Section 8(b)(4)(B). Accordingly, contrary to the Trial Examiner, I would find that, as it induced or encourage em- ployees to engage in a strike , and threatened an employer, with an object in both cases of causing Yolo to cease doing business with R. P. B., Respon- dent violated Section 8(b)(4)(i) and (ii )( B) of the Act. ' Highway Truck Drivers and Helpers , Local 107, Teamsters ( S & L Mc- Cormick, Inc ), 159 NLRB 84, 102 , Truck Drivers Union Local No 413 [Patton Warehouse , Inc [ v N L R B , 334 F 2d 539, 548 (C A D C ) 4 National Woodwork Manufacturers Association v N L R B, 386 U S 612,644 ' Meat and Highway Drivers , Local 710, Teamsters ( Wilson & Co ) v NLRB,335F2d709 , 713(CADC ) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Trial Examiner: A hearing was held on November 14, 1967,' at Stockton, California, on issues raised by a complaint issued October 20 based upon a charge filed September 11 by R. P. B. Trucking, Incorporated of River- bank, California, hereafter R. P. B., alleging that Teamsters Local 386 of Modesto , California, hereafter Local 386, violated Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, hereafter the Act, by threatening to picket Yolo Transportation Company, Incor- porated of Riverbank, California, hereafter Yolo, and also by inducing or encouraging Yolo's em- ployees to cease work, all for the purpose of bring- ing pressure upon Yolo to cease doing business with R. P. B. and/or for the purpose of forcing R. P. B. to recognize and bargain with Local 386 as the representative of its employees. Local 386's answer admitted the commerce facts, that R. P. B. was an employer engaged in com- merce and in a business affecting commerce, and that Local 386 was a labor organization within the meaning of the Act. Local 386 also conceded that Harvey Killman , its business agent , was its agent acting upon its behalf at all times pertinent. It de- nied that Killman at any time informed Yolo's manager and a Yolo employee that Local 386 in- tended to picket Yolo if Yolo continued to do busi- ness with R. P. B. and denied committing any viola- tion of the Act. ' All dates refer to 1967 unless otherwise noted TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 The Charging Party, R. P. B , did not appear at the hearing.' Appearances were entered by the General Counsel and Local 386. They were af- forded full opportunity to examine and cross-ex- amine witnesses, to introduce documentary evidence, to argue orally and to submit briefs. Both submitted briefs. Based upon a review of the entire record,' obser- vation of the witnesses and perusal of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. COMMERCE AND LABOR ORGANIZATION The complaint alleged and the answer admitted that R. P. B. in the course of its business operations from April 1, 1966, to March 31, 1967, performed hauling services valued in excess of $50,000 for the Best Fertilizer Company, a company doing business in the State of California, that Best Fertilizer Com- pany annually sells and ships goods and services valued in excess of $50,000 directly to customers located outside the State of California, that R. P. B. between those same dates performed hauling ser- vices for the United States Army valued in excess of $75,000, and that the latter services had a sub- stantial impact upon the national defense. Local 386 conceded, and the Trial Examiner finds, that R. P. B. is an employer engaged in com- merce in an industry affecting commerce and that Local 386 is a labor organization within the mean- ing of Section 2(2), (5), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES The facts are virtually undisputed. Local 386's witnesses did not contradict the testimony of Yolo's manager and his secretary concerning that which was not stipulated, but merely supplemented their testimony. The issues, as will be developed later, arise out of the inferences to be drawn from the proven facts. A. Events Preceding September During March and April, Teamsters Local 439, Local 386's sister local and, like it, an affiliate of Teamsters Joint Council No. 38 picketed R. P. B. After the April picketing, R. P. B. posted a notice on its bulletin board informing its employees of an intended check by the California Mediation Service of authorization cards executed by R. P. B. em- ployees at the behest of an affiliate of the Seafarers Union (hereafter Seafarers) to determine the authenticity of the signatures thereon and, based t Prior to the hearing , Local 386 moved to dismiss the proceeding on the ground R P B had ceased to do business after October 3 The General Counsel filed opposition to the motion Both prior to and at the hearing the Trial Examiner denied the motion on the ground that R P B might renew business thereafter and the added ground that Section 8(b)(4) was designed to protect neutrals (in this case Yolo) who were still in business 1041 thereupon, whether the Seafarers had been designated by a majority of R. P. B.'s drivers and shopmen (approximately 30 in number) as their collective-bargaining representative. Immediately after posting of the notice, Local 386 secured four4 authorization cards from R. P. B. employees designating it as their collective-bargain- ing representative and, on such basis, Local 386 protested the proposed check. On receiving such protest, the California Mediation Service refused to proceed further. The Seafarers then (still in April) filed a petition with the National Labor Relations Board (hereafter the Board) in Case 20-RC-7517 seeking certifica- tion from the Board as the exclusive representative of the R. P. B. driver-shopmen unit. On April 17 Local 386 filed an intervention in that proceeding based upon the four cards earlier noted. On April 18 the Seafarers withdrew the petition and submitted its authorization cards for a check to determine if a majority of R. P. B.'s employees had signed valid authorization cards designating the Seafarers as their collective-bargaining representa- tive. The check resulted favorably to the Seafarers and, based thereupon, in late April R. P. B. recog- nized the Seafarers and executed a contract cover- ing the wages, hours, and working conditions of the driver-shopmen unit. Despite the foregoing, in May Local 439 renewed its picketing of R. P B. R. P B. promptly filed charges against it alleging violation of Section 8(b)(7)(A) of the Act (Case 20-CP-251). On June 6 Locals 386 and 439 retaliated with charges against R. P. B. and the Seafarers (Cases 20-CA-4560 and 20-CB-1695) alleging their violation of Section 8 by virtue of the former's recognition of and execution of a contract with the latter as described above. In July the charges were dismissed; appeals of the dismissals were denied in August. Yolo's freight volume is heaviest between July 1 and October 3 1, during which period it is primarily engaged in hauling agricultural products from fields in the area within which it operates to canneries; during this time, it augments its normal work force of 14 trucks and drivers by hiring approximately 80 additional trucks and drivers (at the peak). It secures such additional trucks and drivers by enter- ing into subhaul contracts, paying the operators on a tonnage basis. Most of the subhaulers (approxi- mately 50) are one-truck owner-operators. The balance operate two or more trucks, in no case more than eight. For over 5 years preceding 1967, R. P. B. was employed by Yolo as one of the sub- haulers. In 1967 R. P. B. was employed as in the 3 At the time the General Counsel rested his case, Local 386 moved for dismissal on the ground the General Counsel had failed to establish a prima facie case of violation of the Act The Trial Examiner reserved ruling The motion is disposed of by this Decision ' In May Local 386 secured a fifth card from an R P B employee 354-126 O-LT - 73 - pt 1 - 67 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past, supplying between four and seven trucks and drivers. B. The Events of September During the afternoon of Tuesday, September 5, Killman and another Local 386 business represent- ative, Jim Crawford, visited Yolo's manager, Irwin Schali, at his office. Schali's secretary, Odette Roche, was also present . Killman asked if R. P. B. was working for Yolo, and Schali replied that it was. Killman also asked if Bradley and Bertschi were working for Yolo, and Schali replied that it was not.' Killman then asked Schali to secure a letter from R. P. B. by Friday, September 8, certify- ing to the wage rates, health and welfare contribu- tions, pension contributions, and layover compen- sation being paid by R. P. B. to its employees work- ing on the Yolo job, so Local 386 could determine if R. P. B. was meeting the standards required by article 17 of the Yolo-Local 386 contract. Killman went on to state that if the information was not produced by September 8, Local 386 would take economic action against Yolo, citing article 17 as his authority for so doing (see the last sentence, footnote 5), and commented that he would hate to be walking a picket line over the weekend. Schali promised that he would try to secure the informa- tion Killman had requested by the date specified, and promptly visited the offices of R. P. B., where he saw Ray Bye and Bob Puckett, its owners. He in- formed Bye and Puckett of the request, that Kill- man had requested it, and the reason therefor. They informed Schali that their drivers were represented by the Seafarers, and covered by a con- tract' between the Seafarers and R. P. B., that they would get the information together, but that it would take some time. Killman and Crawford returned to Schali's office in the late afternoon of September 8 and asked for the promised information. Schali said R. P. B. had not supplied it yet, but that R. P. B. had promised to furnish it on Monday, September 11, and that he would try to have it for Killman then. He asked Killman if Local 386 intended to picket R. P. B. if Yolo could not supply the information on Sep- tember 11. Killman said no, Yolo would be picketed, inasmuch as Local 386's contract was with Yolo, and article 17 thereof specifically per- mitted Local 386 to take economic action against Yolo for its violation. ' Killman had information that the wage rates , etc , of Bradley and Bertschi employees were inferior to Yolo's ' Article 17 states, "For the purpose of this Agreement the Employer agrees to refrain from using the services of any person who does not ob- serve the wages , hours and conditions of employment herein set forth for all work covered by this Agreement In the event the Employer violates this Article, the Union shall be free to take economic action upon twenty-four (24) hours notice notwithstanding any other provisions contained in this Agreement - After either the September 5 or 8 conversation with Schali at Schali's office, Killman stopped in the truck yard on his way out from Schali's office and contacted John Vieira, an employee of Yolo and Local 386's shop steward. Killman informed Vieira that there might be a picket at Yolo's gate if Killman did not receive information he had requested of Schali; he instructed Vieira to have the men respect the picket line if there was one there. Killman did not mention R. P. B., only that there might be a picket if certain information Kill- man needed was not produced.' Schali subsequently telephoned R. P. B. and in- formed Bye he had to have the requested informa- tion for Killman by September 11. Bye promised to supply it, but again failed to have the requested in- formation for Schali by the time Killman again came back in the afternoon of September 11. When informed on September 11 that Schali still could not produce the requested information, Kill- man asked Schali what he was going to do about R. P. B. Schali said he didn't have any choice-he would discontinue R. P. B.'s employment. Killman told him he was doing the right thing, that if he received the requested information at a later date and Local 386 found R. P. B.'s standards sufficient to satisfy the requirement of article 17 of the Yolo- Local 386 contract and so advi'ed Yolo, Yolo could then rehire R. P. B. Shortly thereafter, Schali telephoned Bye and told him that since he had not supplied the information requested, Yolo would have to terminate R. P. B.'s services . Bye replied that he could not get the requested information, that he would talk to his lawyer and then contact Yolo. Yolo never heard from R. P. B. thereafter, did not employ R. P. B. at any time subsequent to September 11, and hired four owner-operators to replace R. P. B. Some time during the course of the three conver- sations described above, Killman asked Schali to identify the other subhaulers Yolo was using (not including owner-drivers). Schali's secretary, Mrs. Roche, showed Killman a list of subhaulers operat- ing two or more trucks, which included (besides R. P. B.) the names of Forest Freeze, Moss Brothers, Gregg, Yo Brothers, and Youngclaus. Killman did not request any information in September concern- ing the wage rates or other benefits and compensa- tions paid by any subhauler listed other than R. P. B. However, some time during the next month (Oc- tober), Killman asked Schali to supply information with regard to the wages, etc., paid to Forest Freeze ' While Killman was familiar with the terms of the R P B -Seafarers con- tract and knew that the wage and other economic provisions thereof were inferior to those of the Yolo-Local 386 contract, it was nevertheless possi- ble that R P B might be granting economic benefits to the R P B em- ployees employed on the Yolo job in excess of those set out in the R P B - Seafarers contract If this were the case and Local 386 nevertheless forced R P B off the Yolo job, it would expose Local 386 to potential legal lia- bilities " It is clear from the record that Killman was referring to the R P B wage and related information he had asked Yolo to produce TEAMSTERS, CHAUFFERUS, WAREHOUSEMEN & HELPERS , LOC. 386 1043 employees on the Yolo job, relating that he had been informed in the interim by the business agent of another Teamsters local that Forest Freeze had not renewed its contract with the Teamsters (it had been under Teamsters contract the preceding year). Forest Freeze's employment by Yolo ended shortly thereafter (a normal expiration, due to the expiration of the seasonal demand which had occa- sioned its employment). On being so informed, Kill- man dropped the Forest Freeze matter (he had also dropped further inquiry re R. P. B. during the 1966 season for the same reason). C. Contentions of the Parties The General Counsel contends that Local 439 and Local 386 were engaged in a joint effort to coerce R. P. B. into recognizing and signing a con- tract with Local 386 covering R. P. B.'s drivers and shopmen from the time Local 439 commenced picketing R. P. B. in March to and including Local 386's September efforts to force Yolo to cease em- ploying R. P. B as a subhauler. He relies upon the two locals' affiliation with the same Joint Council, the March, April, and May picketing of R. P. B. by Local 439, the attempted intervention by Local 386 during April in the Seafarer-R. P. B. invocation of the services of the California Mediation Service and the Board, and the attempts by the two locals through August to cause the Board to issue a com- plaint aimed at voiding R. P. B.'s recognition of the Seafarers and the contract between them. Alternatively, the General Counsel contends that, assuming arguendo, Local 386 only intended to en- force article 17 of its contract with Yolo, it nevertheless violated Section 8(b)(4)(i) and (ii)(B) of the Act in that it enforced that article not for the purpose of assuring bargaining unit work by the bargaining unit, but rather for the purpose of in- fluencing the wages and other economic benefits of R. P. B.'s employees. Local 386 points out that Killman's efforts were directed exclusively to Yolo, notes that General Counsel does not question the legality or enforcea- bility of article 17 of the Yolo-Local 386 contract, contends that its actions constituted primary activi- ty to protect its area standards, and lastly argues that such activity is not unlawful secondary activity prohibited by Section 8(b)(4)(i) and (ii)(B) of the Act. D. The Issues The issues to be resolved on the basis of the evidence and contentions of the parties are: 1. Whether Local 386 coerced Yolo into ceasing to do business with R. P. B.; 2. If so, whether Local 386's purpose was to bring pressure upon R. P. B. to recognize Local 386 and sign a contract with it or to enforce article 17 of the Yolo-Local 386 contract; 3. Assuming the latter was Local 386's purpose, 'whether Local 386's action was unlawful secondary activity in that it was intended to regulate R. P. B.'s employment policies, rather than to assure per- formance of bargaining unit work by employees within the unit. 1. Did Local 386 coerce Yolo into ceasing to do business with R. P. B. Local 386 does not really dispute the General Counsel's contention that it brought pressure upon Yolo in order to cause Yolo to cease doing business with R. P. B. Far from disputing the testimony of Yolo's manager and his secretary that Killman dur- ing the three conferences in September threatened to picket Yolo if Yolo did not secure satisfactory proof that R. P. B. was paying wage rates and other economic benefits equal to or in excess of those set out in the Yolo-Local 386 contract, Killman cor- roborated it. Nor did Killman dispute Vieira's testimony that Killman told him there might be a picket at Yolo to carry out that threat and to see that the men respected the picket line. The Trial Examiner therefore finds and con- cludes that Local 386 in September did threaten to picket Yolo and did induce or encourage an em- ployee of Yolo to cease work for the purpose of causing Yolo to cease doing business with R. P. B. 2. Did Local 386 intend to enforce its area wage standards or to secure recognition and bargaining from R. P. B. Between March and May it appears clear that Local 439 attempted to coerce R. P. B. into recog- nizing Local 386 as the representative of its drivers and shopmen and executing a contract with it. Though Local 439 abandoned direct action against R. P. B. after the May picketing resulted in charges filed by R. P. B. with the Board, it is reasonable to conclude from the fact they sought thereafter to persuade the Board to issue a complaint against R. P. B and the Seafarers which would have resulted (if successful) in the setting aside of the Seafarer's recognition by R. P. B. as the representative of its employees and the nullification of the R. P. B.- Seafarers contract, that they persisted in such ob- jectives through July. However, there is no evidence to support an inference that they con- tinued to seek these objectives after the final dismissal of such charges on August 1. It is difficult to accept the General Counsel's premise that Local 386 persisted in seeking recog- nition and a contract objective after the August 1 dismissal. Local 386 no longer had any lawful basis for challenging the Seafarer's representation status and the legality of the R. P. B.-Seafarer contract; since the contract probably had at least 2 years to run, Local 386 could not challenge the Seafarers' right to continued representation of R. P . B.'s em- ployees until the contract expired, it was hardly 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD likely that any pressure from the Teamsters at that point could cause R. P. B. to give up the competi- tive advantage ( labor cost wise ) the Seafarer con- tract gave it and expose itself to damage and in- junctive action by the Seafarers if R. P . B. sought to abrogate the R. P. B.-Seatarer contract. It is much more logical to conclude instead that , having failed in its efforts to prevent R. P. B.'s recognition of the Seafarers and its execution of a contract with the Seafarers containing wage rates and other economic provisions substantially lower than the wage rates and other economic provisions of Local 386's contract with Yolo and other truckers in the area, Local 386 would act to protect its area con- tract standards with Yolo and others by attempting in any manner possible to divert work within its ju- risdictional area away from R. P. B. and to other truckers equalling or exceeding its standards. When Yolo's manager queried Killman as to whether he intended to picket R. P. B. if the infor- mation concerning the wages , etc., being paid R. P. B. drivers working on the Yolo job was not forthcoming , Killman replied in the negative, stat- ing that Local 386's dispute was with Yolo. Had Killman 's September activities at Yolo been directed at bringing pressure on R. P . B. to recog- nize and sign a contract with Local 386, one would expect some contact between Local 386 and R. P. B., but there was not any such contact. The Trial Examiner therefore concludes that Kill- man's September activities were intended to cause Yolo to cease doing business with R . P. B. in the hope and expectation that work would then be diverted to other truckers conforming to Local 386's standards . It is not unreasonable to conclude further that Local 386, suspecting that R. P. B. wel- comed representation by the Seafarers because the Seafarers were willing to execute a contract for lower wage rates and other economic benefit provi- sions ( thereby lowering its labor costs ) than Local 386 had established within the area, hoped that by diverting such work away from R. P. B. and to such other truckers R. P. B. might be put out of business, thereby removing a threat to the preservation of Local 386's wage and other economic benefit stan- dards in the area . It has always been a union objec- tive to remove the price of labor as a competitive factor among employers within its jurisdiction by equalizing wage rates and other economic benefits. Unions reason that the continued operation of a substandard employer within their jurisdictional areas poses a constant threat to the maintenance and preservation of the standards they have secured for their members from employers within their ju- risdictional area and makes any improvement thereof more difficult to obtain. Undoubtedly, Local 386 was motivated at least in part by anger and frustration over its failure to achieve recognition and a contract containing its area standards from R. P. B.; this , however, does not imply that it had the continuing objective of securing recognition and a contract but rather sup- ports an inference that its motive was retaliation for its defeat and therefore an abandonment of its former recognition and contract objectives. 3. Were Local 386's actions nevertheless unlawful secondary activity There still remains the General Counsel 's conten- tion that, despite a conclusion that Local 386's ob- jective in coercing Yolo into ceasing to do business with R. P. B. was to enforce the area standards provision of its contract with R. P. B., its action was nevertheless unlawful secondary activity in that it was intended to influence R. P. B.'s employment policies and not to assure performance by Yolo em- ployees of work covered by the Yolo-Local 386 contract and normally performed by them. The line of cases cited by the General Counsels indeed do turn on the principle that economic pres- sure exerted by a union to assure performance by employees represented by it of work within the nor- mal scope of the bargaining unit is lawful primary activity and not unlawful secondary activity within the prohibition of Section 8(b)(4)(i ) and (ii)(B) of the Act , despite the incidental effect of such pres- sure upon secondary employers who lose work as a result of such pressures upon the primary employer. However, those cases are not apropos here. The question here is whether it is unlawful secondary activity for a union to enforce a contract provision which permits the primary employer to contract out bargaining unit work for performance by employees of other employers but conditions such concession by a proviso that such contracted out work shall not be performed at wage rates and other economic benefit levels below those contained in the contract between the primary employer and the union. The General Counsel did not question the legali- ty of the provision itself, and with good reason. If a union under the rationale of the cases cited in foot- note 9 may use economic pressure to secure from a primary employer a contract provision barring him from contracting out any bargaining unit work, thereby assuring performance of all such work by bargaining unit employees , this nullifies an argu- ment that the employer cannot compromise for less, i .e., for a contract provision authorizing the employer to contract out bargaining unit work pro- vided such work is performed at wage rates and other economic benefit standards equal to or in ex- cess of those contained in the contract ( thereby protecting the bargaining unit employees from loss of their jobs by the contracting out of their work for performance by employees of other employers ' National Wood,, on, Manufacturers Assoc ration v N L R B. 386 U S 612, Houston insulation Contractors Association v N L R B, 386 U S 664, American Boiler Manufacturers Association , 167 NLRB 602, 606 TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS, LOC. 386 1045 paying lower wage rates and other economic benefits, thus avoiding a labor cost saving by the primary employer and any incentive on his part to eliminate their jobs and substitute another em- ployer's employees therefor). The courts which have considered this question have so ruled.'' Obviously the enforcement of such a provision against an employer whose wage and benefit provi- sions for his employees are lower than those con- tained in the contract between the primary em- ployer and the union representing his employees results in a loss of work by such (secondary) em- ployer. It also results, however, in the preservation of the standards the union has secured for the em- ployees of the primary employer with regard to the work normally performed by the bargaining unit employees. Local 386 lawfully could have sought a contract provision from Yolo requiring the performance of all its freight transportation by Yolo employees covered by the contract and subject to its terms; thus, if Local 386 were successful , Yolo would have to lease, buy, or borrow up to 80 trucks and hire up to 80 casual drivers during its busy season, and then lay them off at its end; instead, the more reasonable compromise solution was reached of union agree- ment to the contracting out of seasonal work, pro- vided it was performed at not less than the contract standards. The contract provision was reasonable and law- ful, and so is its enforcement. The fact that Local 386 probably also acted in malice , after it had lost out in its campaign to secure representaion rights and a contract from R. P. B. and had been forced to abandon those objectives does not make such enforcement unlawful under Section 8(b)(4)(i) and (ii)(B) of the Act. Rather than attempting to in- fluence the rates of pay and other benefits R. P. B. was granting to its employees , Local 386 was at- tempting to cut off as much work as it could from R. P. B. in order to protect and preserve its area standards, and the Trial Examiner so finds. Its ac- tivity was lawful primary activity and any effects upon R. P. B., a secondary employer, were in- cidental thereto. Based upon the foregoing, the Trial Examiner finds and concludes that Local 386 did not violate Section 8(b)(4)(i) and (ii)(B) of the Act as alleged in the complaint and recommends that the com- plaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Yolo and R. P. B. were employers engaged in commerce and in an industry affecting commerce and Local 386 was a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act at all times pertinent in this case. 2. Local 386 has not violated Section 8(b)(4)(i) and (ii )(B) of the Act. RECOMMENDED ORDER The Trial Examiner recommends that the com- plaint be dismissed in its entirety. ` ° Truck Drirers Union No Local 413 v N L R B , 334 F 2d 539 (C A D C ), Building and Construction Trades Council v N L R B, 328 F 2d 540 (C A D C ), Cos, Jack T, of Orange Belt District Council of Pain- ters No 48 [Calhoun Drvssall Co I v Frank W McCulloch. 315 F 2d 48 (CAD C ), District No 9, international Association of Maclunistc AFL-CIO [Greater St Louis Automotive Tnn,,nerc & Upholsterers Assn J v N L R B , 315 F 2d 33 (C A D C ), Retail Clerks Union Local 770 [ United States Hardware and Paper Conipans J v N L R B , 296 F 2d 368 (C A D C ), also see Hig/issas Truck Drners and Helpers, Local 107 (S & L McCormick, Inc ), 159 NLRB 84