Truck Drivers Local 705, Teamsters

TRUCK DRIVERS LOCAL 705, TEAMSTERS Truck Drivers, Oil Drivers, Filling Station and Plat- form Workers Local No. 705 of the International Brotherhood of Teamsters and Johns-Manville Products Corporation. Case 13-CC-774 August 9, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 30, 1973, Administrative Law Judge Nancy Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. 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 at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her 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 Administrative Law Judge and hereby orders that Respondent Truck Drivers, Filling Station and Platform Workers Local No. 705 of the Interna- tional Brotherhood of Teamsters, its officers, agents, and representatives, will take the action set forth in the Administrative Law Judge's recommended Order. MEMBER PENELLO, dissenting: As more fully set forth in her Decision, the Admin- istrative Law Judge concluded that credited testimo- ny established that on December 14, 1972, Local 705 threatened to picket Johns-Manville unless it agreed to stop receiving deliveries of asphalt from Trumbull Asphalt Company, which was involved in a labor dis- pute with Local 705 and a sister Local, 743. The Ad- ministrative Law Judge concluded further, though "with some doubt," that a telegram sent by Local 705 to Johns-Manville, a copy of which was sent to the ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing her findings 387 Board's Regional Director, retracting any threat to picket and denying any attempt to interfere with its dealings with Trumbull, in the context here, was not sufficient to moot the case and that an unfair labor practice finding and a remedial order would be appro- priate. The Respondent has excepted, inter alia, to this finding on the ground that any violation was isolated and minimal, and that any threat had been retracted and repudiated by its telegram. I agree. The Board has recently said that: . . . we ought not expend the Board's limited resources on matters which have little or no meaning in effectuating the policies of the Act. Thus, in this insubstantial case, we would find that the conduct involved, although it may have been in technical contravention of the statute as interpreted by this Board, was nevertheless so insignificant and so largely rendered meaningless by Respondent's subsequent conduct that we will not utilize it as a basis for either a finding of violation or a remedial order.' The Administrative Law Judge found there was only a single threat; there never was any picketing; there is no allegation of similar violations by Local 705 in the past; the telegram repudiated any intent to picket or interfere with Johns-Manville's dealings with Trumbull and was sent before Johns-Manville was scheduled to receive any further deliveries from Trumbull; and Johns-Manville is free to post or other- wise publicize the telegram as it sees fit. A notice posted under the compulsion of a Board order would accomplish little, if anything, more than the posting of this voluntary disclaimer of any unlawful intention. In these circumstances, I believe that a finding of an unfair labor practice and the issuance of a remedial order are not warranted, and I would therefore dis- miss the complaint. 2 American Federation of Musicians, Local 76, AFL-CIO (John C Wakely), 202 NLRB No 80 DECISION NANCY M. SHERMAN, Administrative Law Judge: This pro- ceeding was heard at Chicago, Illinois, on February 22, 1973, pursuant to a charge filed on December 19, 1972, and a complaint issued on January 9, 1973, and amended at the hearing without objection.' The question presented is whether Respondent Truck Drivers, Oil Drivers, Filling Sta- tion and Platform Workers Local No. 705 of the Interna- i On March 7, 1973, the parties stipulated to a correction of the portion of the transcript reciting the amendments. The stipulation is hereby received as ALJ Exh I. 205 NLRB No. 40 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Brotherhood of Teamsters (herein called Local 705) violated Section 8(b)(4)(ii)(B) of the National Labor Rela- tions Act, as amended (herein called the Act), by threaten- ing to picket the Charging Party (Johns-Manville Products Corporation, herein called Johns-Manville) if Johns-Man- ville continued to do business with Trumbull Asphalt Com- pany of Delaware (herein called Trumbull). Upon the entire record, including my observation of the witnesses, and after due consideration of the helpful briefs filed by the General Counsel, the Charging Party, and Re- spondent, I make the following: FINDINGS OF FACT I JURISDICTION Johns-Manville is a Delaware corporation engaged in the manufacture of building materials, and maintains facilities at Greenwood Avenue, Waukegan, Illinois. During the cal- endar year preceding the issuance of the complaint, a repre- sentative period, Johns-Manville purchased and received at that facility materials valued in excess of $50,000 which were shipped directly from suppliers located outside Illinois. Trumbull is a Delaware corporation, engaged in producing asphalt in Summit, Illinois. During the calendar year pre- ceding the issuance of the complaint, a representative pen- od, Trumbull sold and shipped from its Summit, Illinois, facility materials valued in excess of $50,000 directly to locations outside Illinois. I find that, as Local 705 conceded at the hearing, Johns-Manville and Trumbull are each en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act, and persons engaged in commerce or in industries affecting commerce within the meaning of Sec- tion 8(b)(4)(ii)(B) of the Act, and that exercise of junsdic- tion over the instant proceeding will effectuate the policies of the Act. Local 705 is a labor organization within the meaning of Section 2(5) of the Act. Warehouse and Mail Order Em- ployees Union, Local No. 743, International Brotherhood of Teamsters, herein called Local 743, is also a labor organi- zation within the meaning of Section 2(5). II THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Beginning in June 1972, and continuing until the time of the hearing in late February 1973, Local 743 has been en- gaged in a labor dispute with Trumbull, in that Trumbull employees represented by Local 743 have been engaged in a strike for a new labor contract? No contention is made that at any time relevant here Johns-Manville had a prima- ry labor dispute with the Union (Local 60 of the Interna- tional Chemical Workers) which represents Johns-Manville's 1,200 employees at its Waukegan plant. 2 This was alleged in the original (as well as the amended) complaint, and admitted in the original (as well as the amended ) answer At the close of the hearing, I granted the unopposed motion of counsel for the General Counsel to amend the complaint by adding an allegation that Local 705 had a labor dispute with Trumbull Local 705 denies this latter allegation Johns-Manville, which produces roofing material, has no interest in Trumbull, which does not produce such maten- al.3 However, in the conduct of its business at its Waukegan plant, Johns-Manville purchases materials from Trumbull which, in 1972, exceeded $1.2 million. In December 1972, when the alleged unfair labor practice occurred, Johns- Manville was receiving three to four truckloads of Trumbull materials per day; at the time of the hearing, in February 1973, Johns-Manville was receiving seven to eight truck- loads. Johns-Manville's Waukegan plant has about eight gates, five or which can accommodate only pedestrian traf- fic and are used by employees who walk into the plant. The "main gate," where the gatehouse is located, is the only plant entrance which can be used by delivery trucks or other vehicles. On December 14, 1972, after receiving instructions from Lewis F. Pike (Local 705's secretary-treasurer), Anthony Jannotta (Local 705's business representative), Frank Tay- lor (Local 705's steward), and Bill Creedon 5 drove up to the Johns-Manville gatehouse and told the guard there that they wanted to see the purchasing agent. The guard directed them to James Eyster, who is Johns-Manville's regional purchasing manager. Before Local 705's representatives reached Eyster's office, he had already received word from the "main gate" that three Teamsters representatives had asked to see the purchasing agent and had been directed to the main office, where Eyster's office is located. Upon re- ceiving this message, Eyster telephoned Roy Winkworth, who is Johns-Manville's employee relations manager at the Waukegan plant, and told him that three Teamsters repre- sentatives were on their way to Eyster's office. Eyster and Winkworth decided that Eyster and the Teamsters represen- tatives would meet with Winkworth in his office. When the three Teamsters representatives reached Eyster's office and introduced themselves as Local 705's representatives, Eyster escorted them to Winkworth's office, which is in another building. Exactly what was said during this conversation is the subject of sharp testimonial conflicts which are resolved below. However, it is undisputed that during this conference, Local 705 requested Johns-Manville not to accept deliveries from Trumbull, and Johns-Manville neither acceded to nor refused this request. Johns-Manville shut down its roofing operation (the op- eration which uses Trumbull products) for preventive main- tenance between December 16, 1972, and January 2 or 3, 1973, during which period no shipments were scheduled to be received from any source. In the meanwhile, on Decem- ber 19, 1972-5 days after the Teamsters representatives' visit-Johns-Manville, through its attorney, filed the charge herein, alleging that about December 14 Local 705 had violated Section 8(b)(4)(i)(ii)(B) of the Act in that it attempt- ed "to induce or encourage individuals employed by Johns- Manville . . . to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport or otherwise handle or work on certain goods, materials and 3 There is no evidence whatever to support the suggestion in Local 705's brief that Johns-Manville is Trumbull's alter ego The function of the remaining two gates is unexplained in the record S At the hearing, Jannotta described Creedon as a representative of Local 705, and Taylor testified that Pike was "all of our bosses" The record is otherwise silent about Creedon's status TRUCK DRIVERS LOCAL 705, TEAMSTERS commodities and has threatened, coerced and restrained Johns-Manville . . . with the object of forcing or requiring Johns-Manville . . . to cease using, handling or otherwise dealing in the products of Trumbull." Local 705 received this charge on December 21, 1972. On December 29, 1972, Loea1 7O5's attorney sent the following telegram to Wink- worth at his Johns-Manville office: You have alleged that Local 705 has threatened to picket your company. Representatives that met with you were instructed not to use the word "picket" and merely to ask for your cooperation. The purpose of this telegram is to clear up any misunderstanding. Local 705 has no intention of picketing your company and in the event you continue to use the services of Trumbull Asphalt, Local 705 will not picket your company or attempt in any way to interfere with your using, han- dling, or otherwise dealing with Trumbull Asphalt Company. The sole purpose of contacting you was to ask for your cooperation. Whether or not you cooper- ate is your choice and failure to cooperate will not result in any picketing of your premises. On the same date, Local 705's attorney mailed a copy of this telegram to the Regional Director of the Board's Region 13 office, with a covering letter which read as follows: We are enclosing a copy of a telegram which we have sent to Johns-Manville Products Company. It is our position that Local 705 merely requested cooperation from Johns-Manville and that it is our position that there were no threats or mention of any pickets. Under Tree Fruits 6 such request was proper and advising the public that Johns-Manville's use of products of Trum- bull Asphalt Company was permissible. The purpose of the telegram is to make it quite clear that Local 705 never threatened to picket and has no intention of doing so. There is no evidence to support the assertion in Local 705's brief that a copy of this telegram was sent to Trumbull. Winkworth was out of town when the telegram reached his office, and he did not see it until January 3 or 4, 1973. He did not reply thereto, stating at the hearing that he did not feel a response was "warranted." The complaint herein issued on January 9, 1973. At the time of the hearing on February 22, 1973, a petition for an injunction under Sec- tion 10(1) of the Act (inferentially, filed in early January) 7 was pending in a United States district court, and the parties had stipulated that, in the event of a future violation, a hearing on the petition could be brought up on 2 or 3 days' notice. Local 705 never put up any picket line at Johns- 6 N L R B v Fruit and Vegetable Packers and Warehousemen , Local 760, 377 U S 58 (1964) 7 Sec 10(1) of the Act provides that if the "officer or regional attorney" to whom an 8(b)(4)(B) charge is referred "has reasonable cause to believe such charge is true and that a complaint should issue, he shall " petition for such an injunction Similarly, Sec 101 37 of the Board's statements of procedure provides that "whenever it is determined that a complaint should issue" alleging such a violation , "the officer or regional attorney to whom the matter has been referred will make application for appropriate temporary relief or restraining order in the district court of the United States " 389 Manville, or stopped any trucks there; Johns-Manville's business proceeded at all times in a normal manner. Trum- bull shipments were resumed a few days after the Johns- Manville roofing operation started up again in early Janu- ary 1973. As previously noted, at the time of the hearing in late February 1973, the Johns-Manville plant was receiving seven to eight Trumbull shipments every day. B. The Disputed. Evidence Regarding the Alleged Unfair Labor Practice 1. Introduction The General Counsel makes no contention that Local 705 committed any unfair labor practices on any occasion other than during the December 14 conference. What was said during this conference is sharply in dispute. Winkworth and Eyster gave their versions of the conversations as witnesses for the General Counsel; and Jannotta and Taylor gave their versions as witnesses for Local 705. Creedon did not testify, nor was his absence explained. 2. Winkworth's and Eyster's version of the December 14 conversation Except as specifically noted, Winkworth's and Eyster's versions of the December 14 were consistent and mutually corroborative. According to them, the following occurred: Jannotta started out by explaining that the Teamster rep- resentatives were at the plant because Johns-Manville was receiving deliveries from Trumbull. Jannotta asked whether Johns-Manville knew that Trumbull was on strike, and Winkworth replied yes. Jannotta then explained that Local 743 was a local of inside workers who were on strike at Trumbull; that some of Local 705's members worked for Heaffey Motors, which normally hauled Trumbull 's materi- al to Johns-Manville's plant; and that Local 705' s members were honoring Local 743's picket line. Jannotta said that Trumbull was hauling its material into Johns-Manville's plant by using drivers which it had brought in from its plant in Texas, and vehicles which it had likewise brought in from Texas. Jannotta went on to say that Local 705 was attempt- ing, through the Interstate Commerce Commission and also through the state police, to have these Texas drivers taken off the road as "illegally" operating in Illinois with "foreign plates." Creedon or Taylor stated that they were working with the ICC to try to prevent violence against the drivers. Winkworth told the Teamsters representatives that he had previously handled labor relations in Canada, and de- scribed a long strike (unrelated to the Teamsters) at a Cana- dian Johns-Manville plant, where a rock was dropped from an overpass onto a truck and truck windows were broken when the trucks were going through the picket line. Janotta stated that the purpose of Local 705's visit was not to injure Johns-Manville, but was to try to assist Local 743 against Trumbull. Jannotta explained that the Trumbull strike had been in progress for some 6 months; that in view of the action of Local 705's members in honoring Local 743's pick- et line, Local 705 had been asked to help Local 743 get the strike resolved; and that he was going to be contacting several customers of Trumbull in the hope they would stop 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accepting material for delivery. Jannotta said that Local 705's representatives were there for the purpose of seeing if Johns-Manville would stop accepting deliveries from Trum- bull.- Jannotta said that if the deliveries continued, Local 705 would have to throw up a picket line at Johns- Manville's main gate and Johns-Manville would not get anything in or out of the plant. Winkworth, who had previ- ously resided in Canada, explained to Jannotta that he had been in the United States for only a year, and inquired, "Isn't that secondary picketing?" Jannota replied yes. Winkworth said, "Well, isn't that illegal?" He also men- tioned the fact that Johns-Manville's inside employees were represented by a union, the Chemical Workers. Jannotta replied that it would take quite some time to get pickets removed, and in the interim Johns-Manville would not be getting any material in or out of the plant; and further, that Johns- Manville's own employees would be very confused as to whether or not to cross the picket line and come to work themselves.9 Eyster explained in detail why the asphalt sup- plied by Trumbull was necessary to Johns-Manville's opera- tions. Winkworth went on to say that because Johns-Manville would be temporarily shutting down that weekend, it would not be receiving any deliveries from Trumbull for the next week or so.1b Further, Winkworth said that he would review the discussion with other Johns- Manville people and call Jannotta back in a few days. Ev- eryone then shook hands, and the meeting broke up. During the conversation, Winkworth served coffee to those present. Winkworth characterized the conversation as "amicable ... no shouting or tub thumping or animosity"; and Eyster responded affirmatively to Local 705 counsel's inquiry about whether it was "friendly . . . No loud voices " Wink- worth never subsequently contacted Jannotta. 8 Winkworth unhesitatingly so testified on cross-examination On cross- examination, Eyster indicated that no such request was specifically made Local 705's counsel then asked Eyster whether he believed that Jannotta's statement that Local 705 was going to ask a number of employers not to accept deliveries from Trumbull was also intended for Johns-Manville Al- though Eyster must have drawn such an inference, he paused for a long time before admitting it I believe he hesitated because he was unsure whether such an admission would damage his employer, Johns-Manville. 9 Winkworth consistently testified to the statements made in the last two sentences Eyster's direct examination corroborated Winkworth's testimony, but on cross-examination he testified that Jannotta never raised the subject of a plant shutdown, and that it was Eyster and Winkworth who had dis- cussed the impact that a picket line might have on Johns-Manville's own employees and the confusion it might create among them about whether to cross it On redirect examination , and partly following a leading question by counsel for the General Counsel, Eyster testified that it was Jannotta who first brought up the possible "confusion" in Johns-Manville's own work force, and that Winkworth thereafter made a comment about it but Eyster could not remember what These vacillations in Eyster's testimony reflect on its credibility in this respect Eyster further asserted, and Wmkworth denied, that Wmkworth tendered the number of Johns-Manville employees ( 1,200) represented by the Chemi- cal Workers is All the witnesses but Eyster attributed this remark to Winkworth Eyster mistakenly testified that it was he who made this remark He then went on to deny that he made it to point out that there was no need to have any picket lines, an assertion which I find was consciously evasive in view of his alleged inability to recall the reason he did make this remark 3. Jannotta's and Taylor's versions of the conversation Like the General Counsel's witnesses, both Jannotta and Taylor testified that Jannotta asked Johns-Manville not to buy products from Trumbull. Moreover, both Jannotta and Taylor corroborated the testimony of the General Counsel's witnesses that they based this request on the existence of a labor dispute to which Trumbull was a party." However, both Jannotta and Taylor denied the testimony of the Gen- eral Counsel's witnesses that Jannotta said Local 705 would picket Johns-Manville's main gate if Johns-Manville did not stop receiving deliveries of Trumbull products. I do not credit such denials. Thus, on direct examination Taylor testified that Wink- worth responded to Local 705's statements by stating, "it might not be legal, that it would take him a few days to get an injunction to stop this . . . and in the meantime his employees would be all stirred up." 12 The comments which Taylor thus ascribed to Winkworth would be inappropriate to the unaugmented remark by Jannotta which (according to Taylor) solely occasioned it ("we were sent there for the sole purpose of trying to have these people go along with us on buying their product from another company") but would be highly appropriate if (as Winkworth and Eyster testified) Jannotta had gone on to say that Local 705 would picket Johns-Manville if it failed to comply with this request. While Taylor testified on cross-examination that Wink- worth had prefaced these remarks by saying, "if there was some illegal picketing," this belated effort to account for Winkworth's expressed concern about the time needed to obtain an injunction does not materially amend the incoher- ence in Taylor's testimony; for Taylor-after admitting that Winkworth had also referred to a "secondary boycott" or secondary picketing-insisted that Local 705' s representa- tives had said nothing which would prompt Winkworth to make remarks about secondary picketing or illegal action on Local 705's part. I infer that Taylor attributed these remarks to Winkworth because they could be logically con- nected to what he knew Local 705 had really said-namely, that Local 705 would picket Johns-Manville unless it stop- ped receiving products from Trumbull. This inference is further supported by Taylor's additional testimony that Winkworth did not describe what he meant by a "secondary boycott" because "I think he knew what we meant, too." "Taylor Taylor testified that Jannotta described the dispute to Johns-Manville as "one of the sister locals [presumably, Local 743] had a strike going on, and it was interfering with our drivers' work", and if Johns-Manville stopped buying Trumbull products, " that would relieve us of Trumbull having these drivers working " Jannotta testified that he told Johns-Manville that the Heaffey drivers had been "laid off" owing to the Trumbull strike, that Trumbull had brought in drivers from Texas "just to break the strike," and that, "We're not involved with the strike, we are just involved with the drivers , we have nothing to do with the 743 strike it's not our strike, we're just concerned about the Heaffey drivers being laid off " For reasons set forth infra, I credit the testimony of Winkworth and Eyster about Jannotta's December 14 description of Local 705's interest, and discredit Jannotta's and Taylor's versions In any event, for further reasons set forth infra, fn 15, I conclude that the result herein would be the same whether Local 705 was acting to support Local 743's conceded labor dispute with Trumbull, a labor dispute between itself and Trumbull, a labor dispute between itself and Heaffey, or no active primary labor dispute whatever 12 Jannotta, on the other hand, denied that any statement about an injunc- tion was made TRUCK DRIVERS LOCAL 705, TEAMSTERS Similarly, Taylor's and Jannotta's versions of Jannotta's comment on learning that Johns-Manville was just about to shut down for a while-that in that event there might not be any "problem"-would be inappropriate if Local 705 had merely asked Johns-Manville not to accept Trumbull deliveries, but are consistent (to say the least) with the testi- mony of Jnhnc-Manville's representatives that Local 705 had threatened to picket the Johns-Manville plant if it con- tinued to accept such deliveries Other testimony by Local 705's representatives likewise constitutes an unsuccessful effort to evade the inference that Local 705 threatened a picket line. Jannotta testified on direct examination, and initially on cross-examination, that Winkworth had used the term "secondary boycott"; but, after counsel for the General Counsel extracted from Jan- notta the hypothesis that Winkworth thereby meant, "If [Local 705] stopped a man from going in" the Johns-Man- ville plant, Jannotta retreated to the position that he was not sure whether the words "secondary boycott" had been men- tioned. Further, although Jannotta testified in the presence of Taylor (who immediately followed him to the witness stand) that Jannotta had specifically advised Johns-Man- ville that Local 705 would not stop any trucks coming in or "out" (a word whose use is difficult to reconcile with Jannotta's testimony that Local 705 merely asked Johns- Manville not to receive Trumbull deliveries), Taylor testi- fied that Local 705 had made no reference to stopping trucks-testimony by Taylor which, I infer, proceeded from a desire to conceal a statement that trucks would in fact be stopped. Indeed, immediately after denying such a refer- ence, Taylor testified that when Winkworth mentioned la- bor problems, Local 705's representatives said, "Well, you usually know what's involved." 4. Conclusions regarding what was said on December 14 Winkworth's and Eyster's version of the December 14 conversation is summarized supra, II,B,2. As indicated su- pra, footnotes 8-10, I disbelieve Eyster's testimony in cer- tain respects. However, I find Winkworth to be a wholly believable witness, and I credit his testimony in its entire- ty.13 Further, I find Eyster to be a more credible witness than Jannotta and Taylor; and I credit Eyster's testimony except to the limited extent that it conflicts with Winkworth's. Accordingly, my findings as to the contents of the December 14 conversation consist of the text (exclud- ing footnotes) of section II,B,2, which summarizes Winkworth's unreservedly credited testimony as corrobo- rated and augmented by Eyster's testimony (most of which 13 Local 705's brief attacks Winkworth's credibility largely on the ground that "everything that [he] said was for the purpose of entrapping Jannotta into making a damaging statement " However, Counsel's brief fails to suggest any reason why Winkworth should have attempted thus to entrap a union which (according to its witnesses) was merely seeking, by wholly lawful means, to enlist Johns-Manville 's voluntary cooperation See International Brotherhood of Electrical Workers, AFL-CIO, Local 453 (Delp Refrigeration), 170 NLRB 415 , 420, enfd 432 F 2d 965 (C A 8, 1970) Indeed, counsel's "entrapment" contention is difficult to reconcile with the denials that Local 705's representatives in fact made the remarks which (according to its coun- sel) Winkworth was trying to coax from them 391 I have also credited). For the reasons summarized, supra, part II, B, 3, because Jannotta's and Taylor's demeanor on the witness stand did not impress me favorably, and because of Local 705's unexplained failure to call Creedon as a witness. 14 I discredit the testimony of Jannotta and Taylor about this conversation, except to the extent that it is corro- borated by Winkworth's and Eyster's credited testimony. C. Whether the Credited Evidence Establishes a Violation of Section 8(b)(4)(ii)(B) The credited testimony establishes that on December 14, 1972, Local 705 told Johns-Manville that if it did not stop accepting deliveries from Trumbull, Local 705 would picket Johns-Manville's main gate; that in that event Johns-Man- ville would not get anything in or out of the plant; and, further, that Johns-Manville's own employees would be very confused as to whether to or not to cross the picket line and come to work themselves. There is no evidence that Johns-Manville was a party to any primary labor dispute of any sort; and, further, the credited evidence shows that Local 705's picketing threat was advanced in avowed sup- port of labor disputes between itself and Trumbull and between Local 743 and Trumbull.15 Such threats to picket Johns-Manville unless it stopped receiving deliveries from Trumbull plainly constituted, at least prima facie, a violation of Section 8(b)(4)(ii)(B) of the Act, which forbids a labor organization ... to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where . . . an object thereof is . . . forcing or requiring any person to cease using, selling, handling, transport- ing, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person ....16 Nor can Local 705 successfully contend that it did not violate the Act because its threat of secondary picketing was made on only one occasion and was unaccompanied by other unlawful conduct. Local 868, International Brother- hood of Teamsters (Mercer Storage Company, Inc.), 156 14 International Union, United Automobile, Aerospace and Agricultural Im- plement Workers v N L R B [Gyrodynel 459 F 2d 1329, 1335-46 (C.A.D.C., 1972); NLRB v Conlon Bros Mfg Co, 187 F 2d 239, 332 (C A 7) 15 As indicated supra, II,B,3-4, I do not credit testimony of Local 705's witnesses tending to show that Local 705 was not acting in support of Local 743's strike and was acting in support of an asserted dispute between Local 705 and Trumbull or Heaffey. In any event, in the absence of evidence that Johns-Manville was a party to a primary labor dispute, the legality of Local 705's pressure against Johns-Manville does not turn on the identity of the parties to the underlying primary dispute or, indeed, on the existence of an active primary dispute. Houston Insulation Contractors Association v. N.L.R. B, 386 U S. 664, 667-668 (1967), Lafayette Building and Construction Trades Council (Texaco, Inc ), 176 NLRB 979, 980, enfd. 445 F.2d 495 (C.A. 5, 1971), and cases cited; Newspaper and Mail Deliverers Union of New York (Bergen Evening Record), 175 NLRB 386, 388; Milwaukee Plywood Company v NLRB , 285 F.2d 325 (C A. 7, 1960). 16 Local 810, Steel, Metals, Alloys & Hardware Fabricators & Warehouse- men, International Brotherhood of Teamsters (Scales Air Compressor Corp), 200 NLRB No 81; Local 445, International Brotherhood of Teamsters (Edward L Nezelek, Inc), 194 NLRB 579, Local 157, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry (Midwest Homes, Inc), 155 NLRB 16, 18, 22, enfd 369 F.2d 388 (C.A 7, 1966) 392 DECISIONS OF NATIONAL LABOR RELA-1 IONS BOARD NLRB 67, 68-70. However, the issue remains of the legal effect, if any, of the December 29 telegram to Johns-Man- ville from Local 705's counsel stating, inter aha, that if Johns-Manville continued to use Trumbull's "services," Lo- cal 705 would not picket Johns-Manville or "attempt in any way to interfere with your using, handling, or otherwise dealing with Trumbull." While this telegram did retract Local 705's threat to pick- et Johns-Manville, I cannot agree with Local 705 that the telegram alone is sufficient to moot the case herein.17 In N. L. R. B. v. Columbia Typographical Union No. 101, Interna- tional Typographical Union [Evening Star Newspaper Co.], 470 F.2d 1274 (C.A.D.C., 1972), on which Local 705 solely relies, the action of the respondent local's parent interna- tional in reversing an allegedly unlawful fine imposed by the local (which action was followed by the local's payment of the fine) deprived the local of all power to repeat the alleged offense. No such result was effected by Local 705's telegram herein. On the other hand, neither can I agree with the apparent contention of counsel for the General Counsel that the telegram is wholly immaterial to the issues present- ed here.18 Rather, a determination as to whether an unfair labor practice finding and remedial order should issue here- in must be made on the basis of the record as a whole. Cf. Borek Motor Sales, Inc., v. N. L. R. B., 425 F.2d 677, 679-680 (C.A. 7, 1970), cert. denied 400 U.S. 823 (1970). Certain considerations militate in favor of dismissing the complaint herein. Thus, (1) Local 705's threat to picket Johns-Manville was made on only a single occasion; (2) Local 705 never in fact picketed Johns-Manville or inter- fered with its deliveries from Trumbull; (3) there is no claim or evidence that Local 705 has ever engaged in similar un- fair labor practices; (4) the telegram unequivocally stated that Local 705 had no intention of picketing Johns-Manville or otherwise interfering with its business relationships with Trumbull; (5) the telegram was sent before Johns-Manville was scheduled to receive further deliveries from Trumbull; and (6) Johns-Manville was and is free to post the telegram or otherwise publicize it however and to whomever it choos- es. Cf. American Federation of Musicians, Local 76 (Wakely), 202 NLRB No. 80. On the other hand, (1) Local 705 engaged in a clear unfair labor practice which posed a threat of quick and substantial economic damage to Johns-Manville; 1 (2) the telegram was sent 8 days after Local 705 received the charge herein (and I I days before the issuance of the complaint);20 (3) there is 17 Local 1976, United Brotherhood of Carpenters and Joiners of America v N L R B [Sand Door], 357 U S 93, 97-98 (1958), fn 2; N L R B v. Raytheon Co, 398 U S 25, N L R B v Marsh Supermarkets, Inc, 327 F.2d 109, 111 (C A 7, 1963), cert denied 377 US 944(1969); United Slate, Tile & Composi- tion Roofers, Damp & Waterproof Workers Association, Local No 220 (Roofing Contractors Association of Southern California), 177 NLRB 632, 652 18 See, e.g, Columbia Typographical Union No 101, International Typo- graphical Union (Evening Star Newspaper Co), 193 NLRB 1089, enf. denied 470 F.2d 1274 (C A D C, 1972), Bartley Co v NLRB , 410 F 2d 517 (C.A. 6, 1969); Redcor Corp, 166 NLRB 1013, 1013-1014 , International Paper Co, 184 NLRB 351 19 Eyster credibly testified that 100 to 125 trucks bonging materials pass in and out of Johns- Manville's main gate daily, and that because of Johns- Manville's limited storage capacity, without deliveries of raw materials Johns-Manville would be able to continue operation for no longer than 48 hours no evidence that the December 14 threat was contrary to Local 705's instructions to its representatives;21(4) during most of the period after Local 705's threat to picket, picket- ing either would have been premature and of limited use (because no deliveries were scheduled during Johns- Manville's maintenance shutdown and Johns-Manville had not stated whether Trumbull deliveries would resume when the plant reopened) or would have given rise to an immedi- ate hearing on the Regional Director's petition for an in- junction under Section 10(1); (5) there is no claim or evidence that the Trumbull dispute has been resolved; (6) Local 705 has never admitted having threatened to picket Johns-Manville;22 (7) the Board notice customarily required of unions which violate Section 8(b)(ii)(B) by threatening to picket contains much the same message as that already conveyed in Local 705's telegram;23 and (8) a cease-and- desist order herein would merely forbid Local 705 to engage in conduct already forbidden by the Act.24 After weighing these conflicting considerations, I con- clude, with some doubt, that an unfair labor practice finding and remedial order would be appropriate here. In so con- cluding, I rely primarily on the quick and substantial harm that the threatened picketing might inflict on Johns-Man- ville, a neutral employer. CONCLUSIONS OF LAW 1. Johns-Manville Products Corporation and Trumbull Asphalt Company of Delaware are each engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and persons engaged in commerce within the meaning of Section 8(b)(4)(ii)(B) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening to picket Johns-Manville 's premises with an object of forcing or requiring Johns-Manville to cease doing business with Trumbull, Respondent has en- gaged in an unfair labor practice within the meaning of Section 8(b)(4)(ii)(B) and Section 2(6)(7) of the Act. THE REMEDY Having found that Local 705 has engaged in an unfair 20 See Columbia Typographical Union, supra, 193 NLRB 1089, Lever Broth- ers Co, 163 NLRB 194, fn. 2, N L R B v Great Atlantic and Pacific Tea Company, Inc, 409 F 2d 296, 299 (C A. 5, 1969), P R Mallory & Co, Inc v N L R B, 389 F 2d 704, 710 (C A 7, 1970) Cf Hawthorn Co, 166 NLRB 251, 256, enfd as modified 404 F 2d 1205 (C A. 8, 1969). To be sure, the charge may have been the first time that Jannotta 's superiors were put on notice of his unlawful conduct 21 As the General Counsel's brief points out, there is no evidence to support the assertion in the telegram that "Representatives that met with you were instructed not to use the word 'picket' and merely to ask for [Johns- Manville's] cooperation " Rather, Jannotta testified that he did not receive any instructions from his superior as to what to do or say if Johns-Manville did not cooperate 22 But for Lever Brothers, supra, 163 NLRB 194, fn 2, 1 would regard this consideration as having little or no weight , because the Board does not issue remedial orders requiring a Respondent to admit that it has violated the Act. N L R B v. Express Publishing Co, 312 U S 426, 438-439 23 See Utrad Corp v. N L R B, 454 F 2d 520, 523-524 (C.A 7, 1971). 24 See N L R B v Mexia Textile Mills, Inc, 339 U S 563, 567-568. (But, of course, this consideration would hardly justify such an order against a union which had not even arguably violated the Act ) TRUCK DRIVERS LOCAL 705, TEAMSTERS labor practice warranting a remedial order, I shall recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies 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: ORDER25 Respondent Truck Drivers, Oil Drivers, Filling Station and Platform Workers of Local No. 705 of the International Brotherhood of Teamsters, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from threatening, coercing, or re- straining Johns-Manville Products Corporation with an ob- ject of forcing or requiring Johns-Manville to cease doing business with Trumbull Asphalt Company of Delaware 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at its business office, union hall, or any other place where it customarily posts notices to its members, copies of the attached notice marked "Appendix." 26 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative of Respondent, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish the Regional Director for Region 13 signed 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, 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 26 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 " 393 copies of such notice for posting, if willing, by Johns-Man- ville Products Corporation at its Waukegan, Illinois, facili- ty, and by Trumbull Asphalt Company of Delaware at its Summit, Illinois, facility, in places where notices to employ- ees are customarily posted (c) Notify the Regional Director for Region 13, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, coerce, or restrain Johns-Man- ville Products Corporation with an object of forcing or requiring it to cease doing business with Trumbull As- phalt Company of Delaware. TRUCK DRIVERS, OIL DRIVERS, FILLING STATION AND PLAT- FORM WORKERS LOCAL No. 705 OF THE INTERNATIONAL BROTH- ERHOOD OF TEAMSTERS (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 direct- ed to the Board's Office, Everett McKinley Dirksen Build- ing, Room 881, 219 Dearborn St., Chicago, Illinois 60604, Telephone 312-353-7572.