Local 294, Teamsters

LOCAL 294, TEAMSTERS 515 Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Gene Graham Ford , Inc. Cases 3-CC-541 and 3-CP-163 February 11, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On October 8, 1970, Trial Examiner David Davidson issued his Decision in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent 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 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 preju- dicial 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 the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Local 294, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the Trial Examiner's Recommended Order. 1 We hereby correct the finding of the Trial Examiner's Decision to con- form with the record evidence that the Employer , Gene Graham Ford, Inc , sent letters dated July 10, 1970, to striking employees informing them that they were terminated, and not, as the Trial Examiner inadvertently stated, that these letters were sent by the Respondent TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID DAVIDSON , Trial Examiner : On May 12, 1970, Gene Graham Ford, Inc., hereinafter referred to as Graham, filed the charge in Case 3-CC-541. On June 24, 1970, the com- plaint issued against Respondent alleging that , in fur- therance of a dispute with Graham , Respondent both threatened to picket and picketed at the premises of other employers on certain days in May 1970 thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act. On July 6, 1970, Graham filed the charge in Case 3-CP- 163.On July 17, 1970, the complaint issued against Respon- dent alleging that since on or about April 29, 1970, Respon- dent has picketed and caused Graham to be picketed at its Schenectady, New York, location in furtherance of Respondent's demand that Graham recognize and bargain with Respondent as representative of Graham's new- and used-car salesmen without filing a valid representation peti- tion within a reasonable period of time after the commence- ment of the picketing, thereby violating Section 8(bX7) of the Act. On July 20, 1970, the Regional Director issued an order consolidating these cases for purposes of hearing and deci- sion. Respondent has filed answers in both cases denying the commission of any unfair labor practices. A hearing was held before me on August 20 , 1970, in Albany, New York. At the close of the hearing oral argu- ment was heard from counsel for the General Counsel and Respondent . The parties were also given leave to file briefs, but none have been received. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYERS INVOLVED Gene Graham Ford, Inc., a New York corporation, main- tains its principal office and place of business at Schenecta- dy, New York, where it is engaged in the sale and distribution of automobiles and related products. During the year preceding issuance of the complaints, in the course and conduct of its business, Graham sold and distributed products the gross value of which exceeded $500,000. Dur- ing the same period Graham received goods valued in ex- cess of $50,000 which were transported to its place of business directly from points outside the State of New York. John F. Byme d/b/a Jack Byrne Ford and Mercury, sometimes referred to herein as Byrne , is engaged in the sale and distribution of automobiles and related products at Mechanicsville, New York. In the operation of its business its annual gross revenue exceeds $500 ,000 and its annual receipt of goods and materials from points directly outside the State of New York exceeds $50,000 Orange Motor Company, Inc., sometimes referred to herein as Orange, is engaged in the sale and distribution of automobiles and related products at Albany, New York. In the operation of its business its annual gross revenue ex- ceeds $500,000 and its annual receipt of goods and materials from points directly outside the State of New York exceeds $50,000. Automobile Transport Inc., sometimes referred to herein as ATI, a Michigan corporation, is engaged in transporting cars, trucks, and other motor vehicles in interstate com- merce. Its annual gross revenue exceeds $500,000 and it annually transports motor vehicles valued in excess of $50, 000 directly into New York State. I find that Graham, Byrne, Orange, and ATI are employers engaged in com- merce or in operations affecting commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 188 NLRB No. 81 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE LABOR ORGANIZATION INVOLVED the dealerships where the Association had contracts pres- ently in effect, and that Respondent would negotiate new agreements for them as existing agreements expired. Respondent did not assume the treasury of the Associa- tion or any of its assets, liabilities, or obligations. None of the officers of the Association assumed any office with Re- spondent. Around the end of April, shortly after the affiliation ac- tion was completed, Respondent's attorney contacted Graham's attorney to advise him that Respondent had signed the salesmen up and wanted to settle the strike. A few days later Respondent's attorney informed Bennett, bus- mess representative of Respondent, that he had discussed the matter with Graham's attorney and had been told that Graham's attorney would contact him at a later date. There is no evidence of any further contact between Respondent and Graham. On or about April 29, 1970, the signs carried by the pick- ets at Graham were changed to state in essence "Salemen of Graham Ford do not receive the wages and conditions of the Local 294 Contract." The same five strikers who had been picketing before April 29 continued to picket thereaf- ter with the new sign until on or about July 13, 1970. C. The Termination of the Strikers and the Further Change in the Picket Sign On July 10, 1970, Respondent sent letters to the striking employees. The letters stated that their purpose was to noti- fy the strikers that they were engaged in a strike commenced contrary to the requirements of Section 8(d) of the Act and that by reason of that provision they had lost their status as employees of Graham. This was the first notice the strikers received that they had been terminated. Following the receipt of the letters by the strikers the sign carried by the pickets was again changed to state simply "On strike." The signs continued to bear the name of Re- spondent. The strikers continued to picket with the new sign thereafter until enjoined shortly before the hearing herem. At the time the sign was changed, Respondent's Business Representative Bennett and Respondent's attorney met with a representative of the Board's Regional Office and asked him to inform Graham that the picket sign was to be changed. Following their conversation the Board's repre- sentative informed Bennett that he could do nothing about getting an agreement to settle the strike.3 Respondent did not otherwise contact Graham in connection with the change in the picket sign. According to Bennett and Piccolo, after July 13 the pur- pose of the picketing was to secure the reinstatement of the strikers. They testifed that, if Graham had returned the strikers to their jobs, the picketing would have ceased. D. The Effects of the Picketing on Graham 's Business Before the strike Graham normally received automobiles through ATI or other common carriers, which transported them by truck from rail terminals to Graham's place of business . Graham normally received from 150 to 175 cars a month, From April 1 when the Association strike began, 3 Bennett so testified In addition , in response to a leading question by Respondent's attorney, Bennett replied affirmatively that the Board 's attor- ney told him he could not settle the question of the return of the men Piccolo testified in response to leading questions that the termination letter was discussed with the Board's representative who said he would contact the Company "to see if he could straighten out the Company " Piccolo also testified that the Board's representative was told that the picketing would stop if the strikers were reinstated However, he also testified that he did not recall if he was present at the time Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Bargaining Between Graham and the Association In April 1968 Graham recognized the Capitol District Automobile Salesmen's Association as the representative of its new- and used-car salesmen. Graham bargained with the Association and a collective-bargaining agreement was ex- ecuted in March 1969 which by its terms was to expire on January 31, 1970. Around January 15, 1970,' Adam Piccolo, an employee of Graham and busmess agent of the Associa- tion, requested Graham to bargain with the Association for a new agreement. Bargaining began shortly thereafter. On February 1, the existing contract was extended to February 15. By February 15 no agreement had been reached, and the salesmen struck. After 3 days they returned to work and negotiations continued. On March 31 negotiations ceased and the salesmen again struck. The Association picketed Graham's premises with a sign stating that the salesmen of Graham Ford were on strike and bearing the Association's name. B. The Affiliation of the Salesmen With Respondent and the Change in the Picket Sign During the month of April Graham hired a number of replacements for the striking salesmen . At a meeting around April 10 between Graham and the Association Piccolo raised the question of the return of the striking salesmen to work. Graham's attorney stated that Graham had hired a sales force to replace the strikers and that as of that moment there were no ]ob openings for them.2 Following this meeting Association representatives ap- proached Respondent to discuss the possibility of affiliating with Respondent. Thereafter, the Association held a meet- ing at which a vote by show of hands was taken to affiliate with Respondent. At the suggestion of Respondent 's coun- sel a second affiliation meeting was held by the Association during April, and a secret ballot vote was taken . Notice of the second meeting was given to the Association members, and 35 of its 38 members attended the meeting . The ballot was conducted by an outsider who was not a member of the Association. The vote was 25 for affiliation and 10 against. The members present and voting included salesmen of other car dealers as well as those of Graham . At and after the affiliation meeting, the Association members signed cards designating Respondent as their bargaining representative and became members of Respondent. Before the affiliation vote, the officers of the Respondent met with the officers of the Association and informed them that if they decided to join Respondent they would have to live under Respondent's International constitution, that a business agent of Respondent would be assigned to service 1 All dates which appear hereafter are in 1970 unless otherwise indicated. 2 Although Piccolo testified that at this meeting he repeatedly asked Graham's attorney what the status of the stokers was and that he received no definite reply, he conceded that the strikers were told at that time that the strikers were replaced, that a new sales force had been hired , and that the striking salesmen could not go back to work because a new sales force had been hired LOCAL 294, TEAMSTERS through April 29, the number of cars received dropped to approximately 125. According to Graham's President Helf- rich this was "because some of the carriers that came through refused to drop the vehicles off and had to go back to the yard." After April 29 when the picket signs were changed to include Respondent's name, deliveries of cars to Graham by its former carriers ceased entirely except for 12 or 13 cars which were delivered at tunes when the pickets were not present at Graham's place of business. Before the strike common carriers also normally delivered parts to Graham. Since April 29 Graham has not received any parts through common carriers and has had to make arrange- ments to go after parts itself. While Graham has succeeded in maintaining a complete inventory of cars on hand since April 29, it has done so by sending its employees to pick up cars from other locations and by arranging to hire an independent carrier to deliver some vehicles to Graham. E. Picketing and Threats To Picket at Locations Other Than Graham Ford ATI operates a terminal at Selkirk , New York, where it receives Ford Motor Company automobiles , trucks, and tractors from the Penn Central Railroad for delivery to various dealers in Northeast United States . ATI is a com- mon carrier and utilizes its own and leased vehicles to make deliveries. On May 5 , Robert Drennan, Selkirk terminal manager for ATI, met with Timothy Lane , a business agent for Re- spondent, and James Cerone, a steward for Respondent, at ATI's office with reference to a problem concerning ATI. During the meeting Cerone received a telephone call after which he asked Drennan if he had any personal knowledge that there were employees from Graham Ford at the ATI terminal to pick up new units for Graham . Lane told Dren- nan that if the Graham employees took the cars from the terminal the terminal would be picketed. Drennan told Lane simply that "I had to do what I had to do." Drennan learned later from the dispatcher that Graham employees had come to the terminal to pick up cars on that day. On May 14, Lane telephoned Drennan around 10 a.m. and asked if ATI was in the process of dispatching_ units to Graham. Drennan replied that he was. Lane told rennan that he "wasn't going to fool around with us anymore, he was going to have pickets down there ." Drennan told Lane that AT? was obligated to make an attempt to deliver the units. To Drennan s knowledge there were no Graham em- ployees on terminal property at that time, and according to Graham President XI rich, Graham employees were sent to ATI on only two occasions, once in April and once on May 4, and not thereafter.4 About an hour later pickets appeared at an access road leading into the terminal carrying a sign which said "Gene Graham employees do not enjoy the benefits of a contract with Local 294." The pickets remained for about an hour and left. That was the only time Respondent picketed at the terminal. After the picketing, Drennan spoke to Cerone and told him that it was his position that the Company had a legal obligation to deliver units to Graham , and Cerone stated "that naturally the union would probably try in some way to prevent the deliveries and that any units going out to Gene Graham Ford would be picketed."5 ° The second occasion evidently refers to the day identified by Drennan as May 5 I attach no significance to this minor discrepancy in dates 5 Drennan testified without contradiction as to his conversations with 517 Piccolo, who was one of those who picketed at ATI, testified that he deemed that there were Graham employees on ATI's premises at the time he picketed. However, both Piccolo and Bennett exhibited considerable vagueness as to the timing of the picketing in relation to reports they re- ceived as to the presence of Graham employees at ATI. Thus Piccolo testified that he went to the ATI terminal more than once during May to check on reports that Graham employees were there. He testified that he was not allowed into the car storage area which is extensive in size , could not determine whether Graham employees were present, and he could not recall if he had been informed that Graham em- ployees were present on the day that he picketed . Bennett testified that at one point he was informed by Cerone that Graham employees were at the ATI terminal to pick up cars, that he asked Piccolo to go to the terminal and check it out, and that he told Piccolo that if Graham employees were there to start advertising Respondent's dispute with Graham. He testified that he sent Piccolo to the terminal on two or three occasions . However, he testified that he could not remember whether he received the call from Cerone on the same day that the picketing occurred or later , and that it was possibly later. Although Piccolo and Bennett at other points in their testimony related the picketing more directly to the receipt of the report from Cerone than in the testimony summariz- ed above, their testimony as a whole in this regard is at best equivocal. In these circumstances and in the light of I{elfrich's and Drennan's testimony that there were no Gra- ham employees at the ATI premises on the day of picketing, as well as Drennan's uncontradicted testimony as to his conversation with Respondent's Agent Lane on the mom- ing of the picketing, I conclude that the picketing was not the consequence ofl report received from Cerone the same morning that Graham employees were then at the ATI premises. On May 1, 1970, Bennett telephoned John F . Byrne, own- er of Jack Byrne's Ford and Mercury. Byrne and Graham occasionally obtained parts and cars from one another. Bennett identified himself and ascertained that Byrne was the owner of the business . Bennett asked Byrne if he did business with Graham, and Byrne replied affirmatively. Bennett then told him that Respondent was having labor trouble with Graham and that he wished Byrne would cease doing business with Graham until the trouble was taken care of. Byrne testified that he did not respond and Bennett continued to state that if Byrne did not stop doing business with Graham he would put pickets at Byrne's place of bus- iness and that if Byrne still did not stop he would stop him from getting cars from Ford.' A final incident concerns a threat to picket Orange Mo- tors. No evidence was introduced at the hearing with respect to this threat, but both parties stand on the allegations of the complaint and certain admissions in the answer. The 3-CC-541 complaint alleges , and the answer admits, that Respondent had no labor dispute with Orange Motors at any time material. The complaint alleges further, and the answer also admits, that "In furtherance of its dispute with Graham ... Respondent, on or about May 8 , 1970, picketed the premises of Orange Motors , notwithstanding that at all times material herein Graham has had no employees at the premises of Orange Motors." The complaint alleges finally in this regard, but the answer denies , that by its picketing Lane and Cerone 6 These findings are based on the testimony of Byrne which I have credited. While Bennett conceded that he called Byrne and asked Byrne if he would cooperate until the dispute with Graham was settled , he denied that he told Byrne that Respondent would picket Byrne if he failed to cooperate 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Orange Motors Respondent induced and encouraged in- dividuals employed by Orange Motors "to engage in, strikes or refusals in the course of their employment to use, manu- facture, process, transport, or otherwise handle or work on goods, articles, materials or commodities or to perform serv- ices, and has threatened, coerced and restrained" Orange Motors and that an object of the picketing of Orange Mo- tors was to force or require Orange Motors and other per- sons engaged in commerce or in industries affecting commerce to cease doing business with Graham. F. Concluding Findings as to the Alleged Violation of Section 8(b)(7) Section 8(bX7)(C) makes it an unfair labor practice for a labor organization to picket any employer where an object thereof is forcing or requiring an em- ployer to recognize or bargain with a labor organiza- tion as the representative of his employees ... unless such labor organization is currently certified as the representative of such employees:... (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing:... Provided further that nothing in this subparagraph (C) shall be construed to prohibit any icketing or other publicit for the purpose of truthfully advising, the public (including consumers) that an employer des not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. The allegations of the complaint in Case 3-CP-163 raise these issues: 1. Whether the picketing was for a proscribed recogni- tional object after April 29 when Respondent assumed re- sponsibility for the picketing. 2. If so, whether the picketing was nonetheless lawful informational picketing within the meaning of the proviso to Section 8(bX7)(C). 3. Whether there was any change in the character of the picketing after July 13 when the picket signs were again changed. 1. The object of the picketing after April 29 It is clear that Respondent was not the certified represent- ative of Graham's salesmen. It is also clear that Respondent did not file a petition seeking certification as representative of the salesmen within a reasonable period of time after Respondent assumed responsibility for the picketing on April 29. Before April 29 the strike of Graham's salemen was con- ducted by the Association, a recognized representative, for the purpose of obtaining a new collective-bargaining agree- ment. Even after Graham hired replacements for some or all of the salemen, the picketing by the Association was not picketing for recognition or bargaining within the meaning of Section 8(bx7). The General Counsel contends, howev- er, that when Respondent assumed responsibility for the picketing, it became picketing for initial recognition by a labor organization which had not been recognized previous- 7 Warehouse Employees Union Local No 570, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Whitaker Pa- per Company) 149 NLRB 731 ly by Graham. Respondent contends on the other hand that the object of the picketing was unchanged and continued to be lawful. Although no cases have been cited to me directly in point and I have found none, it would appear that resolution of the issue as to the object of the picketing after April 29 depends on whether object was a successor to the Association as representative of the salesmen. Thus, where a union is foundpto be a successor to another union, the Board will find that no question concerning representation exists,8 will amend the certification to name the successor union as the certified representative,9 and will find a viola- tion of Section 8(a)(5) in an employer's refusal to bargain with the successor union in place of a recognized or certified representative.10 If, as these cases establish , a successor un- ion stands in the shoes of its predecessor for purposes of establishing its rights as representative of the employees represented by the predecessor, then it follows that a succes- sor union may stand in the shoes of the predecessor union in determining whether its picketing is for a purpose pros- cribed by Section 8(b)(7). Accordingly, if Respondent was a successor to the Association, the object of the picketing would not be changed by virtue of the successorship. How- ever, if Respondent was not a successor to the Association, then its picketing to obtain a contract, unlike that of the Association, would become picketing for initial recognition and would be picketing for recognition or bargaining within the meaning of Section 8(b)(7). In deciding whether a union is a successor, the Board looks to a number of factors, including whether democratic procedures have been followed in any vote on affiliation or merger, whether the new organization has succeeded to the assets and liabilities of the predecessor, whether the employ- ees in the bargaining unit have had an opportunity to reg- ister their desires, and whether there is a continuity in the leadership and representation of the employees in the bar- gaining unit.') As Respondent is, at least on the surface, a different organization from the Association and as the facts relating to the claim of successorship are peculiarity within its knowledge, proof that Respondent is a successor to the Association is a matter of affirmative defense and the bur- den is on Respondent to establish its successorship.12 Of the factors relied upon by the Board in determining successorship, some appear to have relatively more impor- tance than others. Thus, the lack of evidence as to the de- sires of the unit employees has been deemed crucial, and where there is clear evidence that the employees in the unit have ap roved a merger, lack of evidence as to the continui- ty of officers or the identity of a merging union within a larger organization has been disregarded.) Here there is no evidence that th4 wishes of the Graham employees as to affiliation were separately determined.14 Moreover, the evi- Baton Rouge Water Works Company, 163 NLRB 1070 Equipment Manufacturing Inc., 174 NLRB No. 74, Safway Steel Scaffolds Company of Georgia, 173 NLRB No 52; North Electric Company, 165 NLRB 942, United States Gypsum Company, 164 NLRB 931; Emery Industries, Inc, 148 NLRB 51, Climax Molybdenum Company, 146 NLRB 508 ; Minnesota Mining and Manufacturing Company, 144 NLRB 419 10 Cincinnati Gasket, Packing & Mfg, Inc., 163 NLRB 763, enforcement denied on other ground 395 F 2d 268 (C.A. 6); Litho-Graphic Press, Inc, 159 NLRB I 11 See cases cited in fn. 9, supra 12 See International Longshoremen 's Association, Local 1575, AFL-CIO (Sea-Land Service, Inc.), 159 NLRB 382. 13 Compare Rinker Materials Corporation, 162 NLRB 1688, with Safway Steel Scaffolds Company of Georgia, 173 NLRB No 52. 14 Although Piccolo testified that a reason the Association desired to affil- iate with Respondent was the awareness of the Graham strikers that they had been replaced and that the same persons picketed after affiliation as before, nowhere does the evidence establish the number of employees in the unit at LOCAL 294, TEAMSTERS dence shows that the assets and liabilities of the Association were not taken over by Respondent and there is no evidence as to what became of the Association after the affiliation vote. There is no evidence that any officer of the Associa- tion became an officer ' of Respondent or that the former Association retained any organizational identity within Respondent. These factors taken together lead to the con- clusion that Respondent has failed to establish that its sub- stitution for the Association as representative of Graham's employees sufficiently insures the employees continuity of their previous organization and representation to constitute Respondent the successor to the Association as representa- tive of Graham's employees." Although Respondent made no written request for recog- nition to Graham, its attorney contacted Graham's attorney and informed him that Respondent wished to settle the strike . Following the affiliation vote , the picket signs were changed to state that Graham's salesmen did not receive the wages and conditions of a contract with Respondent. It is thus clear that Respondent sought recognition and bargain- ing from Graham and that it picketed for that purpose after April 29.16 2. The informational nature of the picketing Assuming that the statement on Respondent's picket sign was truthful and otherwise falls within the proviso , the evi- dence shows that the picketing lost the protection of the proviso because its effect was to induce an interruption of deliveries to Graham. In construing the proviso the Board has held that the test to determine the "effect" of picketing is "whether the picketing has disrupted, interfered with, or curtailed the employer's business.' 7 Here the evidence shows that after April 29 when the picket signs were changed the common carriers who nor- mally delivered cars and parts to Graham before the strike almost entirely ceased deliveries to Graham. Although Gra- ham has nonetheless managed to maintain a stock of cars, it has done so by having its own employees pick them up and by using an independent carrier not previously utilized by Graham. Thus, the picketing `compelled the Employer to modify its method of doing business with suppliers whose products were essential to its daily operation and ... dis- rupted and interfered with the Employer's business."" Moreover, the evidence shows that in addition to picket- ing at Graham's premises Respondent sent pickets to ATI to picket and sought to induce ATI and Byrne, a sometime supplier of Graham, to cease doing business with Graham. Wholly apart from whether or not this conduct separately violated the Act, it demonstrates that Respondent did not seek simply to advertise its dispute to the public and Graham's employees in the immediate vicinity of Graham's place of business.19 any relevant time or the extent to which they participated in the affiliation vote. 15 Gulf Oil Corporation, 135 NLRB 184 ; Rinker Materials Corporation, 162 NLRB 1688. Cf. United States Gypsum Company, 164 NLRB 931, Climax Molybdenum Company, 146 NLRB 508; Safway Steel Scaffolds Company of Georgia, 173 NLRB No. 52, Equipment Manufacturing Inc., 174 NLRB No. 74. 16 Local Union 429, International Brotherhood of Electrical Workers, AFL- CIO (Sam M. Melson), 138 NLRB 460. 17 Retail Clerks Union Local 324, AFL-CIO (Barker Bros. Corp. & Gold's Inc 138 NLRB 478, 491, enfd. 328 F 2d 431 (C A. 9). 1 San Diego County Waiters and Bartenders Union Local 500 (Norhunt, Inc.), 138 NLRB 470, 471; Local 1205, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (Island Coal and Lumber Corp.), 159 NLRB 895, enfd. 387 F 2d 170 (C.A. 2). 519 Accordingly, I conclude that the picketing b Respon- dent at Graham's premises from Aprilp29 until July 13, r970, was for the purpose of recognition and bargaining, was not protected by the informational picketing proviso of Section 8(b)(7)(C), and violated that Section of the Act. 3. The picketing after July 13 There remains for consideration the picketing after July 13. The General Counsel contends that the objective of the picketing remained unchanged after that date . Respondent contends, however, that from July 13 on the objective of the picketing was simply to obtain reinstatement of the dis- charged strikers, relying upon Local 259, International Un- ion United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO (Fanelli Ford Sales, Inc.), 133 NLRB 1468. In Fanelli Ford, the Board rejected the concept that pick- eting to obtain reinstatement of a discharged employee "necessarily" is to compel recognition or bargaining on such matter. It stated, "It may not be said, of course, that picket- ing for an employee's reinstatement may in some circum- stances be used as a pretext for attaining recognition as collective-bargaining representative of all the employees i a certain unit. But before we are willing to infer such broadn- er objective, some more affirmative showing of such object must be made than exists here." In this case, the affirmative evidence of a recognitional object is present. As I have found, Respondent's picketing up to July 13 was for recognition and bargaining. Despite the testimony of Bennett and Piccolo as to their intent after July 13, the evidence otherwise leads to the conclusion that the recogni- tional object of the picketing did not disappear . Although the wording on the picket sign was changed on July 13, the new wording indicated simply that Respondent was "On Strike," which of course it had been for some time, and gave no inkling that the objective of the strike was changed or now excluded any purpose other than reinstatement of the discharged strikers. Respondent made no effort to commu- nicate directly to Graham that it had changed its objective or disclaimed any further recognitional or bargaining pur- pose. Its only attempt to communicate with Graham was through a Board agent. Although there is only hearsay evi- dence as to that communication, even that evidence fails to establish that Respondent sought thereby to coney that it no longer sought recognition and bargaining . Thus Bennett testified that he asked the Board's agent to inform Graham that the picket sign was to be changed and the agent report- ed back that he could do nothing about getting an agree- ment to settle the strike . Piccolo's testimony leaves substantial doubt that he was even present at the time Respondent's representatives spoke to the Board agent, but, in any event, it further fails to indicate that the agent under- took to do anymore than "see if he could straighten out the Company." In these circumstances, although I have no doubt that the picketing after July 13, as indeed before that date, had as one of its purposes securing the reinstatement of the strikers, I conclude that the picketing also continued to have as its purpose recognition and bargaining. As the picketing after Jury 13 continued to have the same disrup- tive effects on Respondent's business as during the earlier period, I conclude that the picketing after July 13 also vio- lated Section 8(b)(7)(C) of the Act. 19 Retail Clerks Union Local 324, etc (Barker Bros. Corp), 138 NLRB 478, 487-488, enfd. 328 F 2d 431 (C A. 9); Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Jack Picoult), 144 NLRB 5, enfd. 339 F.2d 600 (C.A. 2); Local 157, Laborers' International Union of North America, AFL- CIO (T J Madden Construction Co, Inc ), 168 NLRB 826. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. Concluding Findings as to the Alleged Violations of Section 8(b)(4) The uncontradicted evidence establishes that Respondent's Agent Lane 20 twice, on May 4 or 5 and May 14, told Drennan that the ATI terminal would be picketed if Graham employees took cars from the terminal or if ATI dispatched cars to Graham. The uncontradicted evidence further establishes that after the picketing at ATI Respondent's Agent Cerone told Drennan that Respondent would try to prevent deliveries to Graham in some way and that any units going out to Graham would be picketed. I have also found that Respondent's Agent Bennett, on May 1, told Byrne that he would put pickets at Byrne's place of business if he did not stop dome business with Graham and that Bennett added that if Byme did rapt stop doing business with Graham, Bennett could stop Graham from getting cars from Ford. These statements clearly went beyond a mere statement of intent to engage in lawful picketing at such times when Graham employees were at the premises of ATI or Byrne. I find that by this conduct Respondent threatened persons engaged in commerce with ah object of forcing or requiring them to cease do' business with Graham in violation of Section 8(b)(4)(ii)(() of the Act 21 The evidence also shows that immediately following Lane's threat to Drennan on May 14 Respondent caused the ATI premises to be picketed at a time when there were no Graham employees at the ATI premises. Piccolo testified that he deemed that there were Graham employees then at the ATI premises and that because of the layout at the terminal it was difficult to determine whether they were in fact there. Admittedly, it is not always easy for a union to know when employees of a.pnmary employer are at another employer's premises, particularly when the premises are large and access is restricted. Nonetheless, this difficulty gives the union no blanket right to picket at the neutral employer's premises and there must be at least a reasonable basis for the belief that the employees of the primary em- ployer are present 22 Here the only basis shown Tor Piolo's belief was that Bennett had transmitted to him Cerone's report that Graham's employees had been at the ATI termi- nal on a previous occasion. But Graham's employees did not regularly work at or visit A'il's premises and more than a week had elapsed since the last of two visits by them to the ATI terminal. In these circumstances and in the light of the statements of Lane to Drennan by telephone an hour before the picketing commenced, I cohclude that the picket- ing was aimed at curtailing ATI's efforts to dispatch cars to Graham rather than at any employees of Graham who might have been present at ATI's premises. Accordingly, I find that the picketing of ATI by Respondent violated"Sec- tion 8(b)(4)(i) and (ii)(B) of the Act.23 With respect to the picketing at Orange Motors I find the allegations of the complaint insofar as admitted by the an- swer insufficient to establish a further violation of Section 8(b)(4)(B) in the absence of further evidence of the circum- stances of the picketing or of a business relationship be- tween Orange and Graham or any other person 24 20 The answer admits that Lane as well as Bennett and Cerone were agents of Respondent. 21 International Brotherhood of Electrical Workers, AFL-CIO, Local 453 (Delp Refrigeration), 170 NLRB No. 60, cf. District Council of Painters No 48 (Hamilton Materials, Inc), 144 NLRB 1523, 1524-25, enfd 340 F 2d 107 (C.A 9). 22 See Local 3, International Brotherhood of Electrical Workers, AFL-CIO (Atlas Reid, Inc.), 170 NLRB No. 73. 33 International Brotherhood of Electrical Workers, Local 861, AFL-CIO (Albert K Newlin, Inc.), 143 NLRB 1169, enfd. 353 F 2d 736 (C A 5) 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 Gra- ham, Byrne, and ATI, as described in section I, 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 thereof. V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Gene Graham Ford, Inc., John F. Byrne d/b/a Jack Byrne Ford and Mercury , and Automobile Transport Inc. are each employers engaged in commerce or in industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By picketing Gene Graham Ford, Inc., since on or about April 29, 1970, with an object of forcing or requiring Graham to recognize or bargain with it as representative o7 its employees, without having filed a petition under Section 9(c) within a reasonable period of time, Respondent en- gaged in unfair labor practices within the meaning of Sec- tion 8(b)(7) (C) of the Act which affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. By inducing and encouraging individuals employed by Automobile Transport Inc. to engage in the refusal in the course of their employment to perform services and by threatening, coercing, and restraining Automobile Trans- port Inc. and John F . Byrne d/b/a Jack Byrne Ford and Mercury with an object of forcing and requiring ATI and Byrne to cease doing business with Graham, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the Act which affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER25 Upon the basis of the foregoing findings of fact and con- clusions of law, I recommend that Respondent, Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, its officers, representa- tives, and agents, shall: 1. Cease and desist from: (a) Picketing or causing to be picketed Gene Graham Ford, Inc., at its Schenectady, New York, place of business where an object thereof is forcing or requiring Gene Gra- ham Ford, Inc., to recognize or bargain with said Respon- dent as representative of the employees of Gene Graham 24 See Plumbers Local Union No 307 (Meyers Plumbing), 146 NLRB 888 25 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order , and all objections thereto shall be deemed waived for all purposes LOCAL 294, TEAMSTERS Ford, Inc., in circumstances violative of Section 8(b)(7)(C) of the Act. (b) Engaging in, or inducing or encouragin any individ- ual employed by Automobile Transport Transport ] any other person engaged in commerce or in any industry affectin gg commerce to engage in, a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods , articles, mate- rials, or commodities or to perform any services; or threat- ening, coercing, or restraining Automobile Transport Inc., John Byrne d/b/a Jack Byrne Ford and Mercury, or any other person engaged in commerce or in an industry affect- ing commerce, where in either case an object thereof is to force said Employers or persons to cease doing business with Gene Graham Ford, Inc. 2. Take the following affirmative action which is neces- sa to effectuate the policies of the Act: (a) Post at its business offices and meetii g halls copies of the attached notice marked "Appendix."2 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's authoriz- ed representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted . Reasona- ble steps shall be taken b 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 said Regional Director for posting by each of the employers named in the preceding paragraphs, if willing, at all places where notices to their respective employees are customarily posted. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.27 w In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 27 In the event that this Recommended Order is 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 EMPLOYEES 521 POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed Gene Graham Ford, Inc., Schenectady, New York, with an object of forcing or requiring Graham to recognize or bargain with us as representative of Graham's employees in circumstances violative of Section 8(b)(7)(C) of the Act. WE WILL NOT engage in, or induce or encourage any individual employed by Automobile Transport Inc. or any other person engaged in commerce or in any industry affecting commerce to engage in, strikes or refusals in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or perform any services; and WE WILL NOT threaten, coerce, or restrain Automobile Transport Inc., John Byrne d/b/a Jack Byrne Ford and Mercury, or any other person engaged in commerce or in industry affecting commerce, where in either case an object thereof is to force either of said employers or persons to cease doing business with Gene Graham Ford, Inc. LOCAL 294 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 4th Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3100.