Teamsters, Local 294

TEAMSTERS, LOCAL 294 279 Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and R. H. Macy and Co., Inc. and Leaseway of East- ern New York, Inc. and Motor Leasing New York Corp. Cases 3-CP-195, 3-CC-658-1, and 3- CC-658-2 - September 26, 1972 DECISION AND ORDER herein called Motor Leasing, and by Leaseway of Eastern, New York, Inc., herein called Leaseway, affiliated trucking companies. The latter complaint alleges that by inducing and encouraging employees of Motor Leasing not to work, and by picketing the premises of Motor Leasing and Lease- way, the Respondent Union violated Section 8(b)(4)(i) and (ii)(B) of the Act. The two complaints were consolidated for a single hearing. Briefs were filed by the General Counsel, the Respondent, and Charging Party Macy. Upon the entire record, and from my observation of the witnesses, I make the following.' By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 26, 1972, Trial Examiner Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed excep- tions. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. 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 Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION SATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly desig- nated Trial Examiner on March 2, 1972, at Albany, New York, on separate complaints of the General Counsel against Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent or the Union. The complaint in Case 3-CP-195 was issued on December 9, 1971, on a charge filed November 29, 1971, by R. H. Macy and Co., Inc., herein called Macy, and alleges that the Respondent Union picketed Macy's store in violation of Section 8(b)(7) of the Act. The complaint in Cases 3-CC-658-1 and 3-CC-658-2 was issued on December 21, 1971, on separate charges filed on December 1,1971 ,by MotorLeasing New YorkCorp., FINDINGS OF FACT I THE BUSINESS OF THE COMPANIES Macy, with its principal office and place of business in New York City, is a New York Corporation engaged in the sale and distribution of general retail merchandise and re- lated products in a number of locations in the State of New York, including a retail store located at the Colome Shop- ping Center, Colome, New York, the only facility involved in this proceeding. During the past year, it sold and distrib- uted products of a gross value in excess of $500,000. During the same period, it shipped and transported products valued in excess of $50,000 in interstate commerce to points located outside the State of New York, and received goods valued in excess of $50,000 directly from out-of-state sources. I find that Macy is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. Motor Leasing, a New York State corporation, with an office in the village of Menands, New York, is engaged in the business of transporting goods for hire. During the past year, it received gross revenues in excess of $50,000 for services to companies, including Macy, which themselves annually received and shipped goods across state lines val- ued in excess of $50,000. Leaseway, also a New York State corporation, and also with its place of business in Menands, New York, is engaged in truck leasing business. Annually it purchases and receives goods and materials valued in excess of $50,000 from out-of-state sources. II THE LABOR ORGANIZATION INVOLVED I find that Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. A Picture of the Case In November 1971, the Union started an organization campaign among certain of Macy's employees working at its Colonie Center store; the employees it sought to repre- sent were "all receivers and shippers located in the receiving department." For purposes of winning recognition in this 1 A motion by the General Counsel to correct certain typographical errors in the transcript, unopposed by any of the other parties, is hereby granted. 199 NLRB No. 40 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining unit from Macy it established a picket line on November 22 at the shipping and receiving dock in the rear of the store. The next day it filed a representation petition with the Board's Regional Office, requesting an election among those employees (Case 3-RC-5316). By letter dated December 9, 1971, the Regional Director dismissed the peti- tion on the ground that the unit sought in the petition was not appropriate for collective-bargaining purposes. All picketing ceased on the morning of December 10, and it was stipulated that both the Union and its attorney received the letter of dismissal after that date . The picketing effectively interfered with the business of Macy. During the period of this picketing, but only for 4 days-November 30 to December 4-there was also picket- mg at the locations of both Motor Leasing and Leaseway. B. Section 8(b)(7); Case 3-CP-195 There was virtually no dispute as to the facts relating to this aspect of the case. It is argued in support of the com- plaint that notwithstanding the filing of the Union 's petition 1 day after the start of the picketing, and notwithstanding all picketing at Macy was discontinued before dismissal of the petition by the Board, the concededly recognitional picketing in this case violated the proscription of the statute. In pertinent part, Section 8(b)(7) reads as follows : "It shall be an unfair labor practice for a labor organization or its agents . . . to picket . . . any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees ... 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 ...... At the start of the hearing, the General Counsel stated his theory of illegality, presumably both to clarify the ques- tion to be litigated and to alert the Respondent to precisely what it was that was called for in defense. With the proscrip- tive statutory language so directly saying that it is the failure to file a petition that prohibits recognitional picketing be- yond a "reasonable period," the Union had a right to know whether or not additional facts were to be established by the Government before any unfair labor practice could be proved, over and above those alleged in the complaint. All the opening statement said is that "since the Petition was dismissed, it was the same as if no Petition was filed," and that the Union "did this simply because it had obtained sufficient interest among a group of employees." The basic position as stated proves too much to be persuasive as a matter of law. Its initial fallacy appears in the fact that it rests entirely upon the proposition that what is, is not : A petition was in fact filed, ergo, evaluate the case as though no petition was filed. Restated : whenever a pick- eting union files a petition, and, after investigation, in the opinion of the Regional Director it raises no question con- cerning representation and must be dismissed , regardless of the reason-contract bar, insufficient showing of interest, inappropriate unit, etc.-the union is deemed not to have filed a petition at all. And, perhaps more in point, what the argument amounts to here is that the legality of recognition- al picketing by a union which simultaneously files a Board petition asking for an election , is not determined, and can- not be determined, until the Regional Director has complet- ed his investigation . And it is only at this late point in time, in the event the petition is found defective , that the picket- ing, by retroactive effect, becomes tainted . This means that while the investigation is in progress, as provided by the statute and by the Board's Rules and Regulations, the pick- eting is not improper, as in this case, for the General Coun- sel made no attempt to enjoin it under Section 10(1) of the Act. I find this broad legal argument without merit. It does too much violence to the language of the statute , finds no support in the legislative history of the section , and is lack- ing in fundamental logic . See, for example, International Hod Carriers Building, Local 840, 135 NLRB 1153, where long ago the Board said: "the filing of a timely petition stays the limitation [upon recognitional picketing] and picketing may continue pending the processing of the petition." The only precedents cited in support of the statement that a petition filed is no petition at all are certain Board decisions dealing with the situation where the picketing union filed a petition, but later itself chose to , and did, withdraw it. Such cases are inapposite to the question at bar . The purported analogy only repeats the bad logic, for it equates a with- drawn petition with a live one duly filed with the Board. And one case, cited by counsel for Macy in his brief, ex- pressly instead avoids the question . See, Chicago Printing Pressmen's Union No. 3, 137 NLRB 729, where the Board said: " . . . we do not pass on the effect if any to be given to a timely petition which is subsequently dismissed by the Regional Director." In his brief the General Counsel makes an additional argument; he contends that in view of the facts which later came to light pertinent to the appropriate grouping of em- ployees in this store, it must be found that the Union knew or must be presumed to have known from the beginning, that its petition would be dismissed. As I understand that theory of illegality it is that there can be a case , a special circumstance, where the facts prove beyond cavil by any rational man that the petition was not intended to serve its normal function. If this be the theory, such a petition may well be deemed no petition at all . Such, for example, might be the case were the petition on its face to ask for an election among only the female employees, or only the black em- ployees, or only persons over 6 feet tall. The Board could well ignore such petitions , for no absurdity merits consider- ation. This is not such a case.The Union's petition describes a unit of employees comparable to a grouping that the Board has found appropriate, depending upon the facts of the case after hearing. Compare: A. Harris & Co., 116 NLRB 1628, fn. 8. Cf. Sears Roebuck & Co., 180 NLRB 862. The petition also indicates the number of employees in these categories that the Union then believed were at work-seven. There are over 600 employees in this store, including selling and nonselling personnel, regular and part-timers. The parties agreed to a factual stipulation as to where they work, what kind of work they do, who supervises them, and how they are shifted about in their daily assignments . The stipulation reads as follows: Macy's Colonie store is an integrated retail department store, employing, under the overall direction of its store TEAMSTERS, LOCAL 294 281 manager, approximately 620 employees (of whom ap- proximately 317 are temporary) in 61 or 62 selling de- partments, 14 or 15 nonselling departments, and a restaurant, all housed in a single two-story building at the Colonie Shopping Center. The selling departments are under the direction of two merchandise managers who report direct to the store manager . The nonselling departments are under the direction of a personnel manager, a control manager, and an operations manag- er, who report direct to the store manager. The packing (shipping) and receiving employees (approximately 18 regular and seven temporary), along with preretail (invoice) clerical employees (approxi- mately two regular) and, during at least part of their work day, stockmen (approximately two regular and 18 temporary), are under the immediate supervision of the packing and receiving manager, who, along with the housekeeping and maintenance manager and the res- taurant manager, reports direct to the operations man- ager. During the balance of their work day, the stockmen are under the immediate supervision and direction of one or more of nine group managers who report direct to one or another of the two merchandise managers. The packing and shipping employees, pre-retail em- ployees and stockmen (total, approximately 22 regular and 25 temporary) work in both the packing and re- ceiving area and, in distributing merchandise to selling areas and delivering merchandise from selling areas, throughout the store. The other nonselling employees (approximately 36-2 regular and 15-23 temporary) work in areas either immediately adjacent to the pack- ing and receiving or in separate areas off the selling areas, and are under the immediate supervision of ei- ther the housekeeping and maintenance manager, who reports direct to the operations manager , or of other first-line supervisors, who report direct to the control manager. There is constant daily contact between employees in the various nonselling departments, and, between them and employees in the selling departments. The store has central hiring; all employees partic- ipate in common benefit programs ; and all except cer- tain commission employees in a few particular selling departments are considered for compensation increase on the basis of a uniform policy. While this statement of fact was agreed to by the Un- ion, clearly it was placed into the record as supporing mate- rial to prove the General Counsel's case. And as he did not explain in what way it serves that purpose , it may have been intended to show only that the Regional Director did not act arbitrarily in dismissing the petition . But such a finding, assuming this to be the purpose of the factual stipulation, would add no comfort to the complaint, because it only goes to the fact the petition was dismissed, in itself not sufficient basis for an unfair labor practice finding against the Union. Beyond that, all that these conclusionary facts indicate is that there may have been 18 regular shipping and receiv- ing employees, instead of 7, as the Union said in its petition. What is meant by "preretail" employees, of whom there were two, and "stockmen," also two, is by no means clear. Nor is there any way of knowing from this record how temporary any "temporary employees" are or were, in one department or another. At best all that can be gleaned from the stipulation is that the Union may have been wrong in its information, that when it believed only 7 men would definitely be included in a shipping and receiving bargain- mg unit, 18 might be included. In that event its showing of interest was insufficient. Moreover, as the stipulation also speaks of overlapping supervision , distribution of merchan- dise to selling areas and delivery of merchandise from sell- ing areas "throughout the store," and work "immediately adjacent to the packing and receiving," it may also be that the proposed unit was not deemed appropriate because of the general integration of operations throughout the entire complement of 620 employees. But the relevant question here can only be whether the Union must be charged now with knowledge then of the pertinent facts, as revealed in the stipulation . It is doubtful the Company would have welcomed the Union's represen- tatives in the first instance had they asked permission to survey its precise employment practices inside the store to see if they could carve out an appropriate bargaining unit in their desire to organize employees. The Union was out- side the store and all it could see was what appeared at the loading dock, in the back, where receiving and shipping employees normally worked. And this is also the sole loca- tion where the Union placed its pickets. The best that can be said in support of the complaint is that the Union sought recognition on behalf of only 7 em- ployees, an inappropriate unit because it really should have sought to represent 18. The petition bounced back, as, no doubt, it deserved to bounce. There is no rational basis for finding, however, that it was any the less a petition, as invisaged by both Section 9 and Section 8(b)(7) of the stat- ute. . It is implied that the Union never for a moment doubted its petition would be dismissed. The factual stipulation de- tailing the usual factors pertinent to unit determinations by the Board is said to support such an inference. But if the facts concerning the Company's method of operations so obviously make the petition a "nullity," as the Macy lawyer said at the hearing, if the Union is to be charged with absolute knowledge in advance of all the picketing that its petition absolutely was to be dismissed , why did it take the Regional Director 17 days-from November 23 to Decem- ber 9-to decide that the requested unit was inappropriate? And for 11 of these days the Board office also had under consideration the Company's charge, filed on November 29. With Macy no doubt pressing its contention that the peti- tion was filed in bad faith, and with the statute very perti- nently calling upon the Regional Director to act swiftly, there must have been some doubt even in the minds of the government investigators before the decision was reached it was an undeserving petition. Nor is there probative evidence apart from the petition itself to prove bad faith in the Union, as also suggested by the prosecution. On November 5, weeks before the picket- ing started, Timothy Lane, business agent of Local 294, called on William Hayes , the store manager, to demand recognition. He gave Hayes a letter so stating, and it was forwarded to the Company's main office in New York. The 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter says, "The employees employed by your Company have designated ...." Does this mean the Respondent tried to enforce recognition for 620 employees while really confi- dent only that it might win an election among 7? I think not. Only Hayes testified about Lane's visit that day, and he quoted the business agent as saying "some of our warehouse employees" wanted to be represented by the Union. This was no slip of the tongue. On cross- examination, the manag- er admitted again this is what Lane had said. He went further and added that he asked "what warehouse," and was told "the warehouse in back of your building." At this point, still according to Hayes, Fifer, the personnel manag- er, who was also present, said there was no warehouse, and Lane specified, "your receiving dock." Hayes was then asked by the cross-examiner did he know what the union agent was talking about, and he answered "yes . . . the packing and receiving dock." Clearly the store manager knew what the recognitional claim was about, but simply sent the man away without committing himself. The Union's letter of demand, placed in the manager's hands, reached Alfred Niemann, the Company's vice presi- dent for personnel, in New York, and on November 11 the New York office responded in writing. In rejecting recogni- tion, the Company wrote: "The Employer does not believe that your Union represents a majority of our employees in any appropriate unit at our Colonie store." If Niemann thought for a moment the Union was seeking to force recog- nition, without an election, on behalf of all 600 of the store employees, he would not have spoken of the inappropriate- ness of any bargaining unit. What the letter proves is that Hayes, the local manager, told his superior exactly which unit-receiving and shipping employees-the Union was suggesting for bargaining purposes. There is indirect evidence of a later conversation between Niemann and Nicholas Robilotto, president of Local 294, on November 15. It seems Robilotto telephoned New York to pursue the matter. Niemann died a week before the hear- ing. There was received in evidence a letter dated November 30, written by Macy's lawyer, Robert Jones, relating the substance of Niemann's telephone conversation with Robi- lotto, as told to the lawyer by Niemann. Attached to the lawyer's statement is an affidavit by Niemann, dated De- cember 2, 1971, to the effect that what the lawyer wrote faithfully reported what his client had reported to him. This is hearsay, indirect evidence at best, and therefore not very reliable. The purpose of the exhibit was to prove that the Union, out of Robilotto's mouth, was trying once again to force recognition on behalf of all the store employees. It falls short of proving the assertion. In pertinent part, the lawyer's statement reads: "Mr. Robilotto said, in words or substance, `the people' had joined Local 294 and were pay- ing dues ...." The phrase, "in words or substance," must be taken in the light of Lane's limited demand upon Hayes and the Company's admission in the letter of November 11 that the Union was seeking some unit short of an overall production and maintenance grouping. And finally, nobody ever really doubted which employ- ees it was that the Union was seeking to represent, for the signs carried by its pickets could not have been clearer: "Macy's Refuses to Bargain With Teamsters Local 294 Representa- tive of Its Receiving and Shipping Employees." The Com- pany also knew that the union was picketing only the rear dock of the store. There is another argument, in support of the total Section 8(b)(7) complaint, that is no more convincing. The General Counsel stated it as follows: "We are contending that the time of the picketing was timed to have the maximum ad- verse affect [sic] on the business of the Company, as it came during the time when the Company does a very substantial amount of business, just prior to the Christmas season." Hayes, the store manager, testified that the picketing caused great inconvenience, a substantial loss of business and add- ed costs because of the necessity for resorting to unplanned transportation facilities. The Company, as charging party, also added to the argument by having Hayes say at the hearing that Macy is "a quality operation," an "outstanding fashion department store," not a "borax" operation. As I understand this collateral argument, it is that while a union may picket for recognition if its activity falls within the proper safeguards enumerated in Section 8(b)(7), it may not lawfully do so at a time that is too inconvenient for the employer, or when the economic pressure always incidental to picketing unduly interferes with business as usual. The contention, of couse, stands entirely apart from any other question of legality, for if the picketing violates the statute otherwise, there is no occasion for considering its relative impact upon the employer's operations. I find the funda- mental position unpersuasive. The legality of any picketing cannot turn upon the degree of economic disadvantage caused the employer, or the extent of business curtailment. Compare: N.L.R.B. v. Insurance Agents' International Union (Prudential Insurance Co.), 361 U.S. 477. Asked whether this same picketing, all things being equal, would have been legal in the off season of the merchandising business, nei- ther the General Counsel nor the Charging Party gave any coherent answer. As to the idea it is illegal to picket Macy in the circumstances, but not Korvette, or Sears Roebuck, or Montgomery Ward, the local competitors, because the latter are "borax" stores, the suggestion merits no consider- ation at all. C. Section 8(b)(4); Secondary Pressure As set out above, Motor Leasing and Leaseway are affil- iated trucking companies, with common officers. One runs the trucks and the other services them; together they trans- port merchandise for Macy, to and from three locations in the Albany area and two locations in the New York City area. They also carry cargo for other companies, and use about 100 employees, including drivers and helpers. Both truck companies have collective-bargaining agreements with the Respondent Union. During the period when the Union was picketing the Macy loading dock, employees of Motor Leasing refused to cross the picket line; this was their own local picketing. To adjust to its employees' reluctance to drive trucks through the picket line clear up to the loading dock, Motor Leasing arranged for its supervisor, or supervi- sors, to drive all the trucks and trailers from a point 1/2 mile away through the picket line to the dock. They took over from the drivers at that distance point and returned the vehicles to them after emerging. Most of the drivers and helpers cooperated in this fashion and much merchandise was moved. Four employees of Motor Leasing refused to TEAMSTERS, LOCAL 294 283 drive, or help on the trucks, albeit relieved of any necessity to approach or cross the picket line. They were therefore discharged. The storyof how these men refused to follow work orders, of how two agents of Local 294-Steward Pasqualina Var- badash and Business Agent Charles Bentley-aided and abetted them in their refusal to work, and of how the Union, using the individual members as a screen to cover its official activity, picketed all the locations of Motor Leasing and Leaseway to protest the discharge of its members was told by Paul McDonald, operations manager of Motor Leasing, and by Richard Grezo, vice president of both companies. None of the union members was produced to contradict them, and neither of the union agents testified in defense. Of course, I credit the General Counsel's witnesses. Late in the evening of November 23, the day after the Macy picketing started, George Stone and Ed Honsinger, road drivers, returned to their own depot after having been dispatched on a regular run to the Macy dock. They said they could not work because of the pickets and because Macy "was on strike." McDonald explained how he would have someone else pull the trailers away from Macy's prem- ises, to a distant point, for them, but they persisted in refus- ing, saying they would not handle "struck goods." Stone even said he was going nowhere until "Local 294 squared their differences with Macy's." Neither of the men worked that night and both were discharged the next morning. Early on November 24, two other men-Raymond Hoff- man, a driver, and George Denaker, a helper, also refused to accept an assignment. Hoffman was told by McDonald to make a run with a tractor and trailer to the Macy dock. He refused to go on the ground that "Macy's was on strike." Now Grezo came into the room; he said he and McDonald were unable to persuade the two men, driver and helper. At this point Hoffman asked that Varbadash be called; this was the Motor Leasing steward for Local 294. Grezo ex- plained the situation to Varbadash, who answered that the company could not ask Hoffman to cross the picket line, that "the freight was struck." Grezo insisted the freight was not "struck," and again explained to the steward, in the presence of both employees, that he was not asking the men to cross the picket line, "that he would have someone go in and out with the equipment as we had done two days be- fore." Hoffman held firm to his refusal, and Varbadash agreed with him. As McDonald recalled the steward's words: "Mr. Varbadash stated that Mr. Hoffman wasn't ... there was reference made to an agreement made some six years ago. He stated that Mr. Hoffman wasn't required to drive the tractor trailer in this regard, in line with his work." Unable to convince the company officers, Varbadash asked to speak to Mr. Sherry, the president of the company, who was in Syracuse. He did, there in everyone's presence, and McDonald heard hun say to Sherry "that Macy's was on strike and that there was a picket line up there and the freight was struck." Finally, Grezo ordered both Hoffman and Denaker to work as instructed, they refused, and both were discharged. The trucking work continued under the arrangement made by McDonald, using supervisors to cross the picket line, until November 29, when Bentley, the Local 294 busi- ness agent, came to McDonald's office with Varbadash and Stone, one of the discharged men. Bentley started by giving McDonald a typewritten notice to the effect that any driver of the company who might take a load to New York City or Long Island would automatically lose his city seniority. McDonald protested that this violated an oral agreement made some years earlier between them. Bentley then asked whether the company was going to return the four men to their jobs, and McDonald said he could not do that. Now Bentley said the company was asking these men to cross a picket line, and McDonald repeated this was not the case. To strengthen his argument Bentley pointed to some clause in the Union's National Freight Agreement, but Grezo said he read it differently, and continued to dispute the assertion that "struck goods" were involved. With this, the union group left. Five minutes later another driver, George Led- better, about to start a run to Macy's Long Island location, entered the office and told another manager to get another man because he, Ledbetter, "just got stopped up on the hill, and that he thinks it would be best that he do not take the trip." He did not work that day. The next morning Ledbet- ter apologized to McDonald for not taking the run the previous day and said Bentley had stopped him "up on the hill," but did not say what Bentley had told him. Early in the morning of November 30, the four dis- charged men picketed the trucking company's main depot at Menands. The picket signs read: "Motor Leasing New York Corp. guilty of unfair labor practices. We're Teamster Local 294 members fired for respecting the Teamsters pick- et line." The picketing continued for 4 days, here and at other locations of the two affiliated companies, one at a Montgomery Ward location and another at a Sears Roe- buck site. Virtually all work ceased at these locations. The picketing was discontinued on December 4 and the four men were reinstated. Analysis and Conclusion The complaint in this part of the case alleges that the Union induced and encouraged the employees of the truck- ing companies not to work, in furtherance of an illegal objective to interrupt the business between Macy and the carriers, neutral and secondary employers, both by oral encouragement of employees and by picketing the premises of both Motor Leasing and Leaseway, all in violation of Section 8(b)(4)(i) of the Act. It also alleges that by picketing the premises of both neutral companies the Respondent restrained and coerced them within the meaning of Section 8(b)(4)(u). The dispute between Motor Leasing and its employees was not whether they should cross the picket line at Macy's dock, but whether they should continue to perform regular assignments of trucking Macy's merchandise over the high- ways. There is no question but that the drivers and helpers were not being asked to cross the picket line or approach it. What the employees did not want to do was work on ve- hicles transporting Macy's goods, regardless of where the work assignment took them. The object, conceivably first born in the minds of the individual workmen, was to inter- rupt the business Motor Leasing was doing with Macy, and thereby bring indirect pressure on Macy to grant recogni- tion to Local 294. Refusal to cross the picket line intself, 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may or may not have been justified, but that question is not presented here, for Motor Leasing was willing to live with that inconvenience. While the union agents later argued to the Motor Leasing officers that their contract with Motor Leasing gave these employees the privilege of refusing to transport Macy merchandise altogether, no contract so pro- viding was produced in defense, and there is no reason for assuming Motor Leasing had agreed to such a right at all. Mere characterization of Macy's merchandise as "struck goods" cannot serve to alter the basic facts of the case. And while it may not have been illegal in the individual employees to take this attitude, it was quite another matter for the Union to agree with them in the presence of their employer and in their own presence. When Varbadash, the union steward, expressly called by Hoffman and Denaker to defend their refusal to work, argued to the employer that the men were not required to drive the trucks at all, he was literally-in the language of the statute-encouraging his members to refuse to work to achieve a secondary objective. I find that he then committed an unfair labor practice in violation of Section 8(b)(4)(i) chargeable to the Respondent. I make the same finding with respect to the conduct of Bentley, the business agent, when he told both McDonald and Grezo, in the presence of employee Stone, that Macy's was "struck goods" and that the employees were justified therefore in refusing to touch it anywhere at any time. This was pure encouragement of Stone to continue his refusal to work. As to the picketing of the several locations of both Motor Leasing and Leaseway, there is no question but that it was both direct inducement of employees of the two companies to cease work, and coercion of the companies themselves to cease doing business with Macy. The argument, in the Respondent's brief, that this was only implementation of "individual decisions," separately reached by the four dis- charged employees, is unpersuasive in the total circum- stances. The Union, through its two agents, had made itself party to the dispute with Motor Leasing. The secondary objective was clear enough. Bentley had personally visited the managers to protest the discharge of the men, and he clearly understood the reason for their dismissal. He was speaking as representative of the Union when he insisted they had a right to bring about clearly secondary pressure. There is no way of separating the discharges from the reason for the discharges. And the Union was identified on the picket signs. The legend said "Local 294 members," but this is a play on words. It would have been one thing for Stone, or Hoffman, or the other discharged employees, in their individual names to have asked their fellow workers to sup- port their cause. It was quite another for them to flout the name of their union-"Teamsters Local 294-in their faces from the picket line. This was the Respondent Union speak- ing, not too subtly, to its members and to Motor Leasing and Leaseway. Evidence of union responsibility and author- ization for conduct of this kind need not be direct; it can as well be circumstantial.2 I find that by picketing the prem- ises of the two trucking companies the Respondent violated Section 8(b)(4)(ii) of the Act. 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 Mo- tor Leasing and Leaseway, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. V THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii) of the Act, I shall recommend that it be required to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. Examination of past Board decisions reveals a very persistent determination by this Teamster Local 294 to violate this particular section of the Act, Section 8(b)(4), and to flout the prescriptions of the statute again and again. See N.L.RB. v. Local 294, Teamsters (Van Transport Lines), 298 F.2d 105 (C.A. 2), and the long series of citations appearing in the General Counsel's brief. Effectuation of the policies of the Act there- fore demands that the Respondent here be enjoined from further violations of these sections of the Act not only with respect to Motor Leasing and Leaseway, but also with re- spect to any other person engaged in commerce or in an industry affecting commerce, or any other person. CONCLUSIONS OF LAW 1. 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. . 2. R. H. Macy and Co., Inc., Leaseway of Eastern New York, Inc., and Motor Leasing New York Corp. are employ- ers within the meaning of the Act and are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 3. By inducing and encouraging employees of Leaseway of Eastern New York, Inc., and of Motor Leasing New York Corp. to engage in a strike or refusals in the course of their employment to perform services, with an object of forcing said employers to cease doing business with Macy, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(i) of the Act. 4. By threatening, coercing, and restraining Leaseway of Eastern New York, Inc., and Motor Leasing New York Corp., with an object of requiring them to cease doing busi- ness with Macy, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(4)(ii) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:3 2 Local Union No 272, International Association of Bridge, Structural and 3 In the event no exceptions are filed as provided by Sec 102 .46 of the Ornamental Iron Workers, AFL-CIO, 172 NLRB 207; International Union of Rules and Regulations of the National Labor Relations Board, the findings, Operating Engineers, Local 925 (Manta), 154 NLRB 671 . conclusions, and recommended Order herein shall, as provided in Section TEAMSTERS, LOCAL 294 285 ORDER The Respondent, Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Engaging in, or inducing or encouraging individuals employed by Leaseway of Eastern New York, Inc., Motor Leasing New York Corp., or any other employer, or any other person engaged in commerce or in an industry affect- ing commerce, to engage in strikes or refusals in the course of their employment to process, transport, or otherwise han- dle or work on any goods, articles, materials, or commodi- ties, or to perform any services, where an object thereof is to force or require Leaseway of Eastern New York, Inc., Motor Leasing New York Corp., or any other person, to cease doing business with R. H. Macy and Co., Inc., or any other person. (b) Threatening, coercing, or restraining Leaseway of Eastern New York, Inc., Motor Leasing New York Corp., or any other employer or person engaged in commerce, where an object thereof is to force or require such employers or any other person to cease doing business with R. H. Macy and Co., Inc., or any other person. 2. Take the following affirmative action, which I find will effectuate the policies of the Act: (a) Post at the Respondent's business offices, meeting halls, and other places in the Albany, New York, area where notices to members are customarily posted, copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for the third region, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (b) Mail signed copies of the notice to the Regional Direc- tor for Region 3, for posting by Leaseway of Eastern New York, Inc., and by Motor Leasing New York Corp., said employers being willing, at all locations where notices to their 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.5 102.48 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. 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 5 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read - "Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of The United States Government After a trial at which all parties were given an opportunity to present evidence and argument, the National Labor Re- lations Board has decided that we violated the law by com- mitting certain unfair labor practices and has ordered us to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT engage in a strike, or induce or encour- age any employee of Leaseway of Eastern New York, Inc., Motor Leasing New York, Corp., or any other person engaged in commerce, to engage in a strike or to refuse in the course of his employment to use, manu- facture, process transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is forcing or requiring said companies to cease doing business with R. H. Macy and Co., Inc., or any other person engaged in commerce or in an industry affecting com- merce, or any other person. WE WILL NOT threaten, coerce, or restrain Leaseway of Eastern New York, Inc., Motor Leasing New York Corp., or any other person engaged in commerce or in an industry affecting commerce, where an object there- of is forcing or requiring said companies or any other employer to cease doing business with R. H. Macy and Co., Inc., or any other person. Dated By LOCAL 294, INTERNATIONAL BROTHER. HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) (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 direct- ed to the Board's Office, Ninth Floor, Federal Building, I l l W. Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.