Construction, Building Material, Teamsters

CONSTRUCTION, BUILDING MATERIAL, TEAMSTERS Construction, Building Material, Ice & Coal Drivers and Helpers and Inside .Employees, Local Union No. 221, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Perkins Motor Transport, Inc, Cases 18-CC-533 and 18-CC-535 January 19, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER On June 16, 1975, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 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 brief and has decided to affirm :the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Construction, Building Material, Ice & Coal Drivers and Helpers and Inside Employees, Local Union No. 221, affiliated with In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommend- ed Order. 'Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951) We have carefully exammed the record and find no basis for reversing his findings 2 While we agree with the Administrative Law Judge's conclusion that Respondent engaged in unlawful secondary activity, we do not adopt his rationale as set forth in In 13 of his Decision DECISION STATEMENT OF THE CASE 423 CHARLES W. SCHNEIDER, Administrative Law Judge: Upon charges and amended charges of unfair labor prac- tices filed on November 7, 12, and 14, 1974, by Perkins Motor Transport, Inc., the Charging Party, against Local Union No. 221, Teamsters, the Respondent, a complaint was issued on December 31, 1974, against the Respondent alleging that the Respondent had engaged in unfair labor practices within the meaning of Section' 8(b)(4)(i) and (ii)(A) and (B) of the National Labor Relations Act, as' amended, 29 U.S.C. 151, et seq. On January 7, 1975, the Respondent duly filed its answer denying the commission of unfair labor practices. Copies of the complaint and ac- companying notice of hearing were served on all the par- ties. Pursuant to notice a hearing on the complaint was held before me in Minneapolis, Minnesota, on various dates from February 19, 1974, to February 26, 1974. All parties appeared, participated in the hearing, and were afforded full opportunity to be heard, to introduce and to meet ma- terial evidence, to present oral argument, and to file briefs. Briefs were filed by all parties on April 16, 1975. Upon consideration of the record and the briefs I make the fol- lowing: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES INVOLVED Fabcon, Inc., herein called Fabcon, is a Minnesota cor- poration, with principal office and place of business within the State of Minnesota. Fabcon is engaged in the manufac- ture and erection of prestressed concrete. During the past year, Fabcon sold goods valued in excess of $50,000 which were shipped by Fabcon from its facilities within the State of Minnesota directly to points outside the State of Minne- sota. Bor-Son Construction Company, herein called Bor-Son, is a Minnesota corporation engaged in construction of apartments and other multiple-occupancy dwellings and construction work. During the past year, Bor-Son, in the course of its business operations, purchased, transferred, and delivered to its construction sites goods and materials valued in excess of $50,000, which goods were transported to said sites within the State of Minnesota directly from points outside the State of Minnesota. Paper Calmenson and Co., herein called Paper Calmen- son, is a Minnesota corporation with principal office and place of business within the State of Minnesota. Paper Cal- menson is engaged in the nonretail business of purchasing and selling scrap steel and steel productions. During the past year, Paper Calmenson sold goods valued in excess of $50,000 which were shipped by Paper Calmenson from its facilities within the State of Minnesota directly to points outside the State of Minnesota. Perkins Motor Transport, Inc., is a Minnesota corpora- tion engaged in the business of truck brokering. During the 222 NLRB No. 69 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD past year, a representative period, Perkins' total revenues from its operations were approximately $1 million of which more than $50,000 was derived from Fabcon and more than $50,000 was derived from Paper Calmenson. During the past 12 months, Perkins has, in the course of its busi- ness operations, purchased, transferred, and delivered to its plant and shop supplies goods and materials valued in ex- cess of $50,000, which goods were transported to said facil- ity within the State of Minnesota directly from points out- side the State of Minnesota. By virtue of their operations as described above, Fab- con, Bor-Son, Paper Calmenson, and Perkins are and at all times material have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and employers engaged in an industry affecting commerce within the meaning of Section 8(b)(4) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Local Union No. 221, Teamsters, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES I A. Issues The case arises out of an attempt by Respondent Local 221, in late 1974, by means of picketing and other activity, to obtain recognition as the bargaining representative of Perkins' truckdrivers or operators. The issues are: (1) whether Perkins' drivers or operators are employees within the meaning of the Act or are independent contractors; and (2) whether the Respondent's conduct had an object of forcing or requiring (a) independent contractors to join the Respondent, or (b) other persons or employers to cease doing business with Perkins in order to compel Perkins to recognize and contract with the Respondent. B. Perkins' Business Perkins is a nonunion motor carrier operating under au- thority granted by various Federal and state bodies, such as the Interstate Commerce Commission, the Minnesota Public Service Commission, and others, which regulate mo- tor freight transport for hire. Perkins has two large custom- ers who are responsible for the majority of its business: Fabcon, Inc., and Paper Calmenson, Inc., identified in sec- tion I, above. Fabcon's account constitutes approximately 60 percent of Perkins' business. At the time the Respondent's organizational picketing began, described hereinafter, Perkins employed approxi- mately 24 owner-operators, whose status is in dispute. However, in addition, Perkins employed at that time three i The findings herein are based on admitted facts, or credible testimony or other credible evidence, to the extent deemed probative in the particular circumstances. Where there is testimonial dispute as to the facts, the varying versions have been evaluated in the light of the demeanor of the witnesses, the inherent probabilities, and the probative value of the particular testimo- ny In making factual resolutions all evidence in the record, not previously excluded, has been considered and weighed, whether specifically adverted to or not persons within the group for whom the Respondent sought recognition, who were employees within the meaning of the Act: two drivers and a mechanic? While the General Counsel and the Charging Party contend that Dean Per- kins and Arnold Thorson are not to be counted as employ- ees, I do not find that contention sustained. I therefore conclude that at all material times Perkins employed per- sons, within the unit sought by the Respondent Union, who were employees within the meaning of the Act 3 C. The Status of the Owner-operators 1. The facts At the time of hearing, all drivers of Perkins trucks were owner-operators-that is to say, they own their own trac- tors, which they lease to, and operate pursuant to a written contract with Perkins. Several also own trailers. However in most cases the trailers are supplied either by Perkins or the shipper. Owner-operators are paid a specified percent- age of each haul, plus a percentage of Perkins', net annual carrier revenue. Under the contract owner-operators man "trip-lease" within the requirements of the Interstate Com- merce Commission and may obtain their own "back- hauls," using Perkins' carrier rights and paying Perkins a commission.' Trip-leasing and back-hauls may constitute a substantial source of income for the owner-operator, as much as over $40,000 annually. Two of the owner-opera- tors are incorporated. One owner-operator has other busi- ness interests involving several trucks, and at least one em- ploys a driver. The contract between Perkins and the owner-operator describes the operator as an "independent contractor" (par. 23) exercising "the discretion and judgment of an in- dependent contractor in the performance and exercise of his rights and obligations under this contract " (par. 4). The owner-operator may hire drivers or other employees to op- erate the equipment, provided they meet the requirements of regulatory authorities. Under the contract he is solely responsible for direction and control of such employees, and for the payment of necessary employment taxes on them. Perkins is not permitted to request discontinuance of such employees, except for violation of applicable laws or regulations. In addition, the contract provides that the owner-operator shall in all respects direct the operation of his equipment, including performance of the contract, se- 2 The two drivers were Dean Perkins and Arnold Thorson. Dean Perkins is a brother of Neil and Dennis Perkins Neil and Dennis and their mother, Vera Perkins, are the sole owners of Perkins Motor Transport, Inc., the mechanic was Jerry Schoer. In mid-November 1974, a few days before the termination of the picketing, Thorson became an owner-operator. On No- vember 27, 1974, Dean Perkins quit and moved out of the state 3 The contention as to Dean Perkins is that he was a shareholder or owner in the business There is no evidence to that effect. Dean Perkins' mere relationship to the owners does not nullify his status as an employee. As to Thorson, the contention is that his change in status during the pendency of the dispute requires a finding that he is not an employee . As to that I find that Thorson's change of status shortly before the termination of the picket- ini does not cancel his employee status retroactively. Trip-lease means to haul for another carrier using that carrier's rights. A back-haul is the return load secured by the owner-operator, either by him- self or through a broker, and involves the use of Perkins' carrier authority, and perhaps its trailer CONSTRUCTION, BUILDING MATERIAL, TEAMSTERS lection of commodities, routes, insurance, and all matters relating to repair or maintenance. Under "pro-rate" statutes in effect in some States, the vehicle licenses for tractors operating in more than one State are required to be in the name of the carrier. Howev- er, the contract provides that the cost of the vehicle license is to be defrayed by the owner-operator.' Individual own- er-operators may-and several of Perkins' owner-operators do-restrict their operations to a single State. In such case they may acquire vehicular licenses ("Y plates") in their own names. When the trucks are operating under Perkins' hauling authority, they display Perkins' logo in the form of painting on the cab, or removable signs or placards, containing statements to the effect that the ng is leased by Perkins, and giving Perkins' address and a list of the carrier licenses which Perkins holds in various jurisdictions. Such identifi- cation is required by regulatory authorities. The vehicle may also be painted in Perkins' colors-brown. Perkins pays a bonus-$100-to operators so painting their ma- chines. Several have done so. The contract between Perkins and the owner-operator is for a 6-month period. Cancellation by either party is per- mitted on 30 days' notice. Perkins has not invoked the 30- day provision in the case of operators desiring to cancel, and has itself canceled a contract only once-that in the case of an owner-operator who had five culpable accidents in a period of slightly more than 1 year. Owner-operators must meet the requirements established by the Interstate Commerce Commission and other regula- tory agencies. The contract is initially for a 29-day period, during which the operator's credentials and driving record are checked, and he is given a physical examination and a driver's test. If those are satisfactory, the basic contract is operative. In no case thus far has a 29-day contract failed to be succeeded by a 6-month contract. Owner-operators purchase and maintain their own trac- tors, or other equipment, provide, in the main, their own financing, and choose their own service or repair agency. Perkins does not provide maintenance or sell articles or parts to the owner-operators. All expenses incident to per- formance of hauling, including vehicular license fees, taxes, and tolls, but excluding state fees required to secure carrier's authority, are borne by the owner-operator. Perkins' owner-operators receive no unemployment compensation, workmen's compensation, or social security benefits through Perkins. Perkins pays no taxes or insur- ance premiums for such benefits on behalf of the owner- operators or employees of the owner-operators. Insurance on the tractor is provided by the owner-operator. In gener- al, insurance on the cargo, and liability insurance for per- sonal injury or other property damage, is carried by Per- kins, in conformance with requirements of regulatory authorities. However, owner-operators may, but are not re- quired to, purchase vehicular insurance through Perkins at fleet rates, Perkins deducting the amount of the premiums from sums due the owner-operator. Perkins also makes 5 Under prorate, taxes due each State in which the carrier operates are divided among the participating States according to the carrier's mileage in each State. 425 available to owner-operators, at cost, hospital and life in- surance under a group policy covering clerical, and other employees of Perkins. The contract provides that Perkins shall use reasonable effort to provide the owner-operator with a substantial vol- ume of hauling and, subject to trip-lease, provides that the owner-operators' equipment shall be used only for the hauling of commodities provided by Perkins. Loads are assigned to operators on a first-in, first-out basis, except where there are fewer loads than operators available, in which case seniority among the operators pre- vails, provided the equipment is suitable. The owner-opera- tors may choose not to haul certain types of commodities, and they may, without penalty, reject loads proffered them by Perkins. Operators are free to choose their own routes of travel, and in general, the days they will work. Owner- operators wear no uniforms. Fines or other liabilities consequent upon illegal opera- tion of the vehicles, such as traffic or overweight violations, are the primary responsibility of the owner-operator, and are not paid by Perkins, though in certain circumstances they may be assumed by a shipper. The owner-operator is required to post a performance bond in the amount of $2,500. 2. Conclusions as to the status of the owner-operators On the basis of the above facts, and in the light of appli- cable case authority,6 I conclude that Perkins' owner-oper- ators are independent contractors and not employees with- in the meaning of the Act. The contract provides for independent contractor status. Owner-operators purchase their own equipment with sub- stantial capital investment and provide wholly for its main- tenance. They are paid on a contractually provided scale for the performance of work which they are free to accept or reject. They enjoy none of the usual indicia of employee status: Paid vacations, provision for wage increases, pen- sions, paid health care, life insurance, and workmen's and unemployment compensations. They employ qualified em- ployees on their own terms and, short of noncompliance with governmental safety and legal requirements, are free to operate and to maintain their equipment as they choose. In sum, the owner-operators appear to be entrepreneurs carrying out a contractual function largely within their own discretion, not subject in any significant extent to su- pervisory control by Perkins as to the manner of their per- formance and answerable only for proper completion of their mission. In the context of those facts, I deem the owner-operators to be independent contractors within the meaning of the applicable authorities. The Respondent adverts to various considerations which it asserts require a contrary conclusion: That there is a 30-day "probationary" period, recognition of seniority rights, loss of further opportunity for the remainder of any 6Ace Doran Hauling and Rigging Co., 214 NLRB No. 84 (1974); Kreitz Motor Express, Inc, 210 NLRB 27 (1974); George Transfer and Rigging Co., Inc, 208 NLRB 494 (1974); Conley Motor Express, Inc, 197 NLRB 624 (1972); Deaton, Inc, 203 NLRB 1099 (1973), enfd. 502,F.24 1221 (C.A. 5, 1974); Fleet Transport Co., Inc, 196 NLRB 436 (1972). 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day on which a load is rejected, Perkins' identification on the cab, and vehicle licenses in the name of Perkins. Addi- tionally, the Respondent asserts that the United States De- partment of Transportation Motor Carver Regulations, paragraph 391.3(c), as revised October 1, 1973, in effect define Perkins' owner-operators as employees. I do not deem those facts supportive of the conclusion that Perkins' owner-operators are employees. As has been seen, the 29-day contract when a new operator is secured is for the purpose of completing necessary investigations and assuming the fulfillment of other requirements. I do not deem that to be the equivalent of a probationary period. Nor do I consider the limited application of a seniority principle in the assignment of loads to be inconsistent with an independent contractor status. As for the asserted loss of opportunity for further loads on the day a proffer is rejected by an owner-operator, I find no definitive evi- dence in the record to that effect. Indeed there is specific testimony that operators who have rejected proffered loads have been awarded others on the same day. It has been previously noted that regulatory authorities require that any vehicle operating under a carrier's authority must be identified as the carrier's. It has also been seen that where vehicles operate under a prorate arrangement, the vehicu- lar license is required to be taken out in the name of the carrier. Finally, I do not interpret paragraph 391.3(c) of the Motor Carrier Regulations of the United States Depart- ment of Transportation, quoted in footnote 7, below, as declaring that an owner-operator is an employee within the meaning of the National Labor Relations Act. Thus, I find that none of the considerations urged by the Respondent, either singly or collectively, tend to impair the conclusion that Perkins' owner-operators are independent contractors, and not employees under the Act. D. The Respondent's Activity 1. January 1974; Bailey's visits to Perkins and Fabcon On or about January 14, 1974, Paul F. Bailey, business agent and recording secretary of the Respondent, called on Neil Perkins secretary-treasurer of Perkins Motor Trans- port, with the view of having Perkins become a unionized firm. The effort was unsuccessful, Perkins telling Bailey, in sum, that his drivers were independent contractors. From Perkins' office, Bailey went to the office of Fab- con, where he spoke to David Hanson, president of Fab- con. Bailey interrogated Hanson as to the nature of the relationship between Perkins and Fabcon. Hanson ex- plained that it was a contract arrangement by which Per- kins hauled materials for Fabcon. Bailey told Hanson that the Respondent had been receiving complaints from unions and employees on unionized construction projects because Perkins' nonumon drivers were making deliveries to union projects. Bailey asked that Fabcon compel Per- 7 Subpar (c) is as follows A motor carrier `employs' a person as a driver within the meaning of this part whenever it requires or permits that person to drive a motor vehicle (whether or not the motor vehicle is owned by the motor car- ver) in furtherance of the business-of the motor carrier kins to man his trucks with Teamsters members. Hanson responded in effect that he was satisfied with Perkins' serv- ices and that the matter was none of his (Hanson's) busi- ness. Bailey then said that, if Fabcon did not put pressure on Perkins, Bailey would make "trouble" for Fabcon.8 2. May 1974; Bailey's second, visit to Fabcon Fabcon's employees are represented by labor organiza- tions; the plant employees by Laborers Local 563, and those in the field by Local 49 of the Operating Engineers, Bricklayers Locals I and 2, and Laborers Local 132. About May 17, 1974, Respondent's representative, Bai- ley, paid another visit to President Hanson of Fabcon. On this occasion Bailey was accompanied by three officials of Laborers Locals 132 and 563.9 The conversation was principally between Bailey and Hanson. Bailey stated that something would have to be done about Perkins, either Fabcon should get rid of him or have his drivers become members of the Respondent. Han- son was advised that his customers could be talked to and picketing brought to bear on him at the plant and in the field, resulting in delay and monetary expense for Fabcon. As Hanson put it in his testimony: "They were going to go to the contractors and try and get after us through the contractors. They were going to picket us. Unless we either stopped doing business with Perkins or got Perkins to get union drivers on the rigs. That is it. " 3. October 31, 1974: At Yorktown During October 1974, Fabcon was engaged in construc- tion at the Yorktown apartments project, to which Perkins, pursuant to its contract with Fabcon, was hauling materi- als. On October 31, 1974, some 10 to, 12 officials of the vari- ous construction trade unions in the Minneapolis area con- ducted a card check at the Yorktown project. Among the union officials were Business Agent Bailey of the Respon- dent, and Leonard Bienias, field representative of the Min- neapolis Building Trade Council. A card check is a proce- dure engaged in by the Trade Council at more or less regular intervals, in which officials of the council and rep- resentatives of affiliated construction unions station them- selves at the entrance of a unionized construction project, generally sometime before the beginning of the workday, and ask each person entering the project for his union card and current dues receipt. Normally the procedure takes 1 to 2 hours. On the morning in question, at or about 7:30 a.m., two of Perkins' tractors, driven by Perkins' owner-operators, seeking to enter the Yorktown project to make pickups, were stopped by the group of union officials blocking the driveway and asked for their union cards. When they could not produce cards the drivers parked the vehicles in the t The events in this subparagraph are recited for background purposes only. Those incidents occurred more than 6 months prior to the filing of the unfair labor practice charge See Sec. 10(b) of the Act. 9 Frank Andrejack, field and plant representative of Laborers Local 563, and John McGinn and George Larkin, respectively, business manager and recording secretary of Laborers Local 132. CONSTRUCTION, BUILDING MATERIAL, TEAMSTERS 427 street and called Perkins' office for instructions . President Dennis Perkins then took a loaded truck and drove to the Yorktown site. As he attempted to enter the driveway he was stopped by the group of union officials, including Bai- ley and Bienias, and was asked for his union card. When Perkins replied that -he did not have one, he was told that all drivers had to have a union card to work on a union job. An inconclusive argument ensued. During a lull in the argument John Buckingham, an employee of Fabcon on the project, got into Perkins' cab to get some blueprints for the job. At or about the same time several vehicles sought to exit through the driveway from the project. Perkins moved his truck aside, and after the vehicles had cleared the driveway Perkins drove through. Several of the union officials stepped in front of the truck to stop him but Per- kins kept going, narrowly missing Bienias. Bienias, an- gered, grabbed Buckingham, who in the meantime had got- ten out of the cab, backed him against the vehicle, demanded to see his union card, and asked Buckingham who he was to be telling the truck to come in. As Dennis Perkins went to help Buckingham, Bienias grabbed Perkins and accused him of trying to run him down. Perkins re- plied that they had jumped in front of the truck, and if they got in his way that was their "tough luck." Someone in the crowd began to disconnect the air hoses from the trailer, which would have locked the trailer brakes and made the vehicle inoperable. At that point Dennis Per- kins drove the vehicle further into the project, where even- tually it was unloaded at or about 11 o'clock. The entire incident took several hours, and Perkins was delayed from an hour to an hour and a half in effecting an entrance and making the delivery. Fabcon's work on the project was de- layed several hours by the incident. At one point during these occurrences Fabcon Foreman Douglas Vollbrecht complained to Leonard Bienias about the delay of deliveries, and the two exchanged heated words. Bienias told Vollbrecht that Fabcon's employees were scabs for working with nonunion drivers. Sometime during that week, Glen Esterly, president of the Respondent, and Business Agent Bailey, sought legal advice as to what might be done with respect to Perkins. They were advised by their attorney that they could con- duct peaceful organizational picketing at Perkins' place of business, and follow Perkins' trucks to jobsites where they were loading or unloading, and picket while the trucks were there. They were cautioned, however, against the use of force or threats, or of picketing at locations other than Perkins at times when Perkins' trucks were not present. 4. November 7, 1974: The picketing at Perkins and Fabcon On November 7 the Respondent began to picket and to follow Perkins' trucks. Perkins and Fabcon jointly occupy a building in Savage, Minnesota. The building is owned by Fabcon, and Perkins is a lessee for that portion of the building which it occupies. Fabcon has a plant as well as an office on the property, Perkins an office only. Fabcon owns a number of buildings in the vicinity, all fronting on a private road owned by Fabcon. The building in which Perkins is located is ap- proximately 26 feet wide. Fabcon's main production plant and erection center is located approximately 350 feet away, on the private road. Access to the buildings and the plant is by a common driveway used by Fabcon, Perkins, and others having business on the premises. Normally Fabcon ships some 30 truckloads a day from the plant, using the driveway. Early on the morning of November 7, 1974, the Respon- dent stationed approximately 20 pickets, some carrying picket signs, along the private road. The picket line extend- ed some 400 feet, covering Perkins' office, the driveway, and other buildings of Fabcon. Police were summoned, but before they arrived either Dennis Perkins or Neil Perkins, or both, went to the picket line and told Business Agent Bailey that the pickets were on private property, and that he was advising them of that fact "as a favor" and in order to help them out. Bailey replied, in substance, that the only way Perkins could help them out was to sign a contract. After the police arrived, the pickets left the private road and took up stations on public property. The picketing at that location continued until November 19, when all picketing ceased. The picket signs used throughout the picketing at all locations bore the following legend: UNFAIR PERKINS MTR. TRANS. REFUSES TO MEET AND BARGAIN WITH TEAMSTERS LOCAL 221 The picketing substantially slowed shipments out of Fabcon's plant. 5. November 7, 1974: The Swanson project The Swanson project was an apartment construction in Hopkins, Minnesota, on which Fabcon had a contract with P.S.L. Co., the owner, to furnish, haul, and erect materials for the project. Perkins, pursuant to its contract with Fab- con, was the hauler of the materials. On November 7 representatives of the Respondent fol- lowed Perkins' trucks, carrying material from Fabcon's plant, to the delivery sites, among them the Swanson proj- ect. When John Coleman, Fabcon's foreman for Fabcon on the Swanson project, arrived at the job about 6:40 a.m. that day, he found some 25 to 30 construction union represen- tatives, among them Robert Bohnhoff, business agent of the Respondent, standing along the road in front of the project. Coleman asked Bohnhoff what was going on. Bohnhoff asked Coleman whether he realized that he had nonunion truckdrivers, to which Coleman responded in the affirmative. Bohnhoff told Coleman that "they" were going to have to do something about that. Coleman asked if the group would stop the trucks from coming in but got no definitive answer. At or about 10:20 a.m. Jerry Smith, an owner-operator for Perkins, arrived at the Swanson site with a load of Fab- con material. Members of the union group produced picket signs. Bohnhoff stepped in front of the truck and warned Smith not to hit him. Coleman appealed to Bohnhoff, stat- ing that he needed the materials to keep the job going. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bohnhoff responded that he was not stopping the job, but nevertheless he and others continued to stand in front of the truck. Coleman then called the police. When they ar- rived some argument and shoving ensued, but eventually Smith was permitted to complete the delivery. The incident upset Fabcon's progress on the job. Several of Fabcon's employees on the project asked Foreman Coleman if they should go home. He told them that they could do as they pleased. 6. November 8, 1974: The visit to Paper Calmenson and its result Paper Calmenson, Perkins' second largest customer, is a steel merchant, for whom Perkins does hauling from Paper Calmenson's plant in St. Paul, Minnesota. Paper Calmen- son has contracts with various labor organizations, among them Teamsters Local 120 in St. Paul. On November 8, 1974, Glen Esterly, president and busi- ness agent of the Respondent, accompanied by two other officials of the Respondent, and by Ray Langevin, business agent of Teamsters Local 120, called on Jerome K. Reller, traffic manager of Calmenson. Esterly was the principal spokesman for the union group. They told Calmenson, in Calmenson's words, that "their intentions were to picket Perkins and Perkins' drivers at any point they found them .... In response to Reller's inquiry as to the reason for the picketing he was told that it was for recognition, and that it could be carried on for a period of 30 days. Reller asked how that involved Calmenson, and he was advised that, since Perkins was carrying Calmenson's materials, the Respondent could picket Perkins' drivers wherever they found them, including the places of business of Calmenson and his customers. After some discussion Calmenson said that any picket sign appearing outside of a company cast a reflection on the company, and that Calmenson had unions who "prob- ably wouldn't even bother to read what the sign said." Rel- ler went on to say that he could not afford to have signs like that outside the building, or to have his customers picketed, and that his only alternative was not to use Per- kins until the situation was "resolved." The union represen- tatives stated that that was his perogative. Reller then telephoned Neil Perkins and told him that Paper Calmenson intended not to use Perkins any further until the matter was "clarified." Paper Calmenson ceased to use Perkins after November 8. 7. November 8 to 13: At the Swanson project On November 8 owner-operator Jerry Smith sought to enter the Swanson project with a Perkins truck at or about 7:30 a.m. At that time there were between 15 and 20 pick- ets at the entrance. As Smith drove up, an unidentified member of the group, wearing a Teamsters jacket, stepped in front of the truck and it stopped. The individual told Smith to "get out of there." When Smith replied that it was illegal to prevent him from delivering at the jobsite the individual sought to open the cab door, but it was locked. He then began to strike the truck and the mirrors with his picket sign. Fearing damage to the truck, Smith withdrew. Respondent Business Agent Bohnhoff was present among the group. Around the same time another Perkins truck was refused entrance. Both trucks then parked some distance away in the town of Hopkins, at a point not visible from the con- struction site. In response to a telephone call from the driv- ers, President Dennis Perkins came to Hopkins and sought to get a police escort at the Hopkins Police Department, but was unsuccessful. The two loaded trucks were there- upon returned to Fabcon without delivery. During the occurrences that morning Business Agent Bohnhoff told James Hasse, erection controller of Fabcon, that Perkins had almost ran down Leonard Bienias at the Yorktown project, and, as related by Hasse, Bohnhoff said, "'if he tries that again I'll kill him,' or `we'll kill him,' I'm not sure which his exact words were." November 9 was a Saturday and the 10th a Sunday. Perkins made no deliveries to the Swanson project on No- vember 11, 12, and 13, because, in the words of Foreman Coleman of Fabcon, "the truckers were unwilling to haul them." During the period of time from November 7, 1974, until the cessation of the picketing, picket signs were displayed at the Swanson project on several occasions when Perkins trucks were not present. 8. November 14: At the Swanson project On November 14, 1974, being advised that there were no pickets at the Swanson project, Perkins dispatched three loads to that fob. As two of the drivers, Gerald Smith and Glenn Thomson, were spotting their loads, Business Agent Bohnhoff arrived at the site. He told the drivers that he was attempting to help them, but that they were resisting him, and he was getting "damn sick of it. Bohnhoff further said that the only reason that he was not giving them trouble that day was that Perkins was at the Respondent's office negotiating a contract. However, he added that "I don't want you back here again; and if you come back . . . I'll have 500 guys to back me up . . . . I don't mean kids either. I mean men that know their way around." On the following day, November 15, Smith turned down any further hauls because, as he put it, "I was scared." On November 14 Ronald H. Swanson of the P.S.L. Co., owners of the Swanson project, advised President Hanson of Fabcon that, because of the inability of Perkins to deliv- er materials at the Swanson jobsite, he was hiring other truckers and deducting the cost from payments due Fab- con under their contract. Ronald Swanson confirmed that information by letter dated November 15 to Hanson stat- ing, in pertinent part, as follows: Due to the fact your truck hauler, Perkins Motor Transport, cannot deliver materials to our jobsite in Hopkins, Minnesota, it is necessary for us to immedi- ately hire proper truckers to haul the remaining mate- rials to our site the cost of such will also be deducted from your contract with us. CONSTRUCTION, BUILDING MATERIAL, TEAMSTERS 9. November 14: The Columbia Heights project The Columbia Heights project was a 10-story residential development for the elderly, on which Bor-Son Construc- tion Company was the builder and Fabcon a contractor. At the time the instant controversy arose, Perkins hauled Fabcon's material to the project pursuant to its contract with Fabcon. As we have seen, the picketing at the premises in Savage, occupied by Perkins and Fabcon, substantially impeded shipments from Fabcon's plant in Perkins trucks. That af- fected Fabcon's progress on various jobs, including the Co- lumbia Heights project. As a consequence, Bor-Son orally informed President Hanson of Fabcon that unless Fabcon "got the job going," Fabcon would be subject to damages for the delay. Early in the morning of November 14, 1975, a group, variously estimated at from 15 to 60 persons, of officials of various construction union organizations gathered at the entrance to the Columbia Heights project. 10 Approximately 25 to 30 employees were on the jobsite. Picket signs visible to passers-by in the street were placed against cars parked in the street, though no Perkins' trucks were present. At or about 9 a.m., owner-operator Richard Allen came to the Columbia Heights project in a Perkins truck with a load of Fabcon's material for the job. As Allen sought to enter, union representatives, some with picket signs, took up positions in the driveway, effectively blocking Allen's entrance. When Allen stopped, Respondent Business Agent Robert Bohnhoff got into the cab of the truck, seized the controls, and threatened Allen, telling him that unless he moved the truck out of the driveway he would be pulled from the truck, beaten, and made "an example for everybody else to stop working." Someone in the group shouted an instruction to poke a hole through the truck radiator, Allen, concluding, in his words, that "there was no sense in getting killed," withdrew his truck from the driveway and parked it in the street. As he withdrew he was told that the group was "not going to have no scab truckdrivers, hauling at a union job." Allen's attempts to explain that he was an owner-operator went unheeded. The truck, with Allen in it, remained parked in the street for several hours. Police were summoned, and about 2 p.m. Allen and his truck were escorted into the project by a police car, using another entrance. When the union group discovered the strategem, they blocked that entrance brief- ly, but after some discussion with the police withdrew and permitted the truck to enter. As the truck went in , Bienias, a field representative of the Minneapolis Building Trades Council, told Allen, "I'm going to get you." Allen delivered his load, and as he was preparing to drive out, a group of some 20 to 25 persons sought to stop him by standing in the driveway. By that time police had left. Allen blew his horn and started into the driveway at a pace variously estimated at 5 to 10 miles per hour, and the 10 Among the union organizations whose representatives were present at various times during the day, and participated in some or all of the activities to be described, were the Respondent, Laborers Local 563, the Carpenter's District Council, the Minneapolis Building Trades Council, and Operating Engineers Local 49 429 group got out of the way. However, as the truck went by, Bienias either fell or was hit by the truck, or both. There is dispute, unnecessary to resolve, as to which. As Allen pro- ceeded out, dirt and rocks were thrown at the truck, and the signal lights were damaged. These events materially delayed construction on the pro- ject that day. On the same day, November 14, Dennis Perkins and officials of the Respondent conferred over a period of sev- eral hours concerning terms for settlement of the contro- versy. The Respondent's officials requested Dennis Perkins to sign an agreement recognizing the Respondent as the bargaining agent of Perkins' "drivers, mechanics and other labor," requiring membership in the Respondent after 8 days, and also providing for contract negotiations to begin after the signing. Perkins refused to sign the agreement. Upon inquiry by Perkins as to the type of contract he would be expected to sign, the Respondent's officials pre- sented various contracts with area trucking companies, one of which covered owner-operators. After reading these, Perkins took them to his office for consultation with his brother Neil. Later in the day Dennis Perkins telephoned the Respondent and said, in sum, that he ' did not want a contract. During the contract discussions on November 14, Den- nis Perkins told the Respondent's officials that his drivers were contractors and indicated doubt that he could con- tract for them. The Respondent's representatives told him that he need not worry about the drivers, that they could "get around them." Laborer's Local 563 has a collective-bargaining contract with Fabcon which contains a no-strike clause. On Novem- ber 14 Fabcon's men on the Columbia Heights job, mem- bers of Local 563, asked Wallace Small, business agent of Local 563, if they could go to work. Small, on the instruc- tions of the business manager of Local 563, told them that it was up to them. Small was one of the union group which participated in the events of Novemher 14 and 15 at Co- lumbia Heights. 10. November 14: At Columbia Heights; other events On November 15, 1974, the number of construction union representatives present at the Columbia Heights pro- ject was larger, in the range of 30 to 60 people, apparently in response to the events of the previous day. Though no Perkins' trucks appeared at the project on November 15, some of the individuals carried picket signs, and some signs were leaned against autos on the parking lot. As a conse- quence employees employed on the project, including all of Fabcon's crew, refused to work and the project closed down. However a number of representatives of the unions remained there throughout the day, "to see that it stayed closed down." 11 No Perkins' trucks were dispatched to the Columbia Heights project that day. Owner-operator Allen, of Per- kins, refused to take his truck from the shop because of the threats recited heretofore. Owner-operator Gerald Smith 11 Testimony of Harry Blue, Twin Cities Carpenters District Council rep- resentative, a witness for the Respondent 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was offered work and turned it down because he was `-'scared." - : On November 15, 1974, Bor-Son followed up its previ- ous oral warnings to Fabcon with a letter formally notify- ing Fabcon of Bor-Son's intention to charge Fabcon for all expense incurred by Bor-Son resulting from Perkins' ina- bility to make deliveries at the Columbia Heights project.t2 As we have seen, on the same date, P.S.L. Co. notified Fabcon that because of Perkins' inability to deliver materi- als to the Swanson jobsite, P.S.L. was hiring other truckers and deducting the cost from Fabcon's contract with P.S.L. 11. November 18: At Columbia Heights and Swanson On Monday, November 18, another trucking company, Terry Brothers, began to deliver Fabcon materials to the Swanson site, without apparent incident . On November 18 there were 10 to 12 union representatives at the Columbia Heights project. No picket signs were displayed. Another trucker, Lambert Trucking, made several deliveries to the Columbia Heights project that day without incident and work proceeded normally: Perkins' ability and authority to make deliveries at both projects, and to haul for Calmenson , had thus now been effectively terminated. 12. November 18 at Savage; the following of the trucks to Superior , , Picketing was maintained continuously on working days at Perkins' headquarters in Savage, adjacent to Fabcon, from its inception, on November 7, 1974, until November 19, 1974, when all picketing ceased. The number of pickets varied from 1 to 60. Perkins had difficulty getting trucks in and out of Fabcon's plant because of interference and 12 The letter is as follows November 15, 1974 Fabcon, Inc 700 West Hwy 13 Savage, Minnesota 55378 Attention. Mr. David Hanson Re' COLUMBIA HEIGHTS HOUSING FOR THE ELDERLY Dear Sir As you are aware, the Teamsters' Union is picketing the site for the above project and have today initiated a complete stop of all work The culprit of this action by the Teamsters' Union is Perkins Trucking who is employed by you as truckers of the precast materials to the above project. We wish to inform you that our firm, besides a time delay, is being directly economically injured by this shut-down of the project, as we are carrying the financing of the project As you and your sub-contractors are responsible for the delay we now are experiencing, we must notify you that we intend to back-charge your firm any and all expenses we incur due to financing costs and delay of the construction project We urge you to settle yours and Perkins Truckings difficulties with the Teamster's Union before the above expense reaches astronomical pro- portions. Very truly yours, BOR-SON CONSTRUCTION, INC Ibb Agvald mass picketing-at time requiring the assistance of police. As we have seen, this impeded construction work on the various projects. On November 18, 1974, Perkins had four loads sched- uled for a run from Savage, Minnesota, to Superior, Wis- consin. Two of the loads were dispatched early, about 3 or 4 a.m. before the arrival of the pickets at Perkins' Savage headquarters. Anticipating possible trouble with the two remaining loads, Perkins asked the Savage police depart- ment for an escort. The two trucks, carrying concrete blocks, were escorted through the picket lines by police to state Highway No. 13. In the process, however, one of the pickets opened the chain binder fastening the load to the trailer on one of the trucks. From that point on, Dennis Perkins escorted the trucks in another vehicle, following directly behind. Four or five cars filled with union officials trailed behind Perkins, at- tempting to overtake and to pass him. However, Perkins delayed them by various maneuvers. At an intersection where the trucks transferred from Highway 13 to 35 W Perkins stopped his vehicle on the approach ramp to 35 W, blocking the following cars for a period of time. When the chase was resumed, the union cars overtook the truck with the loose binder which had stopped to refasten the load. When the union personnel got out of their cars and ap- proached the truck, the operator got back into the cab and proceeded on his way. Perkins then managed to insert his vehicle between the truck and the cars behind. When the truck reached the transfer ramp from Route 35 W to Inter- state 94, Perkins stopped his vehicle on the ramp, again blocking the following cars. At this point an unidentified person from one of the vehicles got out and cocked a zip gun at Perkins. With that Perkins fled in his car. What happened thereafter is not disclosed. Respondent's president, Glenn Esterly, and its secretary- treasurer, Walter Wallace, were among the group which followed the two trucks. 13. November 19, 1974: The picketing ceases On this day, at or about 11:30 a.m., the Respondent ceased all its picketing activity. 14. Conclusions as to the legality of the Respondent's activity The facts previously cited need not be repeated. Taken together they establish a pattern of force, threats, and in- terference directed at the operations of Perkins and other employers, and having the necessary effects of dissuading employees of secondary employers to cease working, and secondary employers to cease doing business with Perkins, in order to compel Perkins to recognize the Respondent as the bargaining representative of persons employed by Per- kins, including owner-operators, and to sign a contract. Though witnesses for the Respondent denied that they en- gaged in some, though not all, of this conduct, I have cred- ited the contrary testimony. The Respondent's defense is that it was engaged in a lawful attempt to persuade Perkins to recognize the Re- spondent as the representative of Perkins' employees, and CONSTRUCTION, BUILDING MATERIAL, TEAMSTERS that its activity was restricted to peaceful picketing or other permitted, conduct directed only at Perkins, and at appro- priate times and places. The facts refute that contention. While the Respondent's representatives were correctly in- structed by their attorney as to proper limits of their activi- ty, and advised that,they could not lawfully go beyond it, that advice was not followed. The effect was to impede operations of secondary employers, and to demonstrate to them and their employees that continued dealing with Per- kins would meet with force and violence directed at them and their property. In addition picket signs were displayed at the places of business of secondary employers- at times when no Perkins' trucks were present. That conduct manifests design to secure objectives pro- hibited by the statute. That is so regardless of whether Per- kins' drivers were independent contractors or were instead employees of Perkins within the meaning of the Act, though it has been found that they were in fact indepen- dent contractors. The Respondent contends that it sought recognition only for employees of Perkins, and if the own- er-operators were independent contractors, the Respon- dent did not seek to represent them. Whether a genuine mistake of fact on the part of the Respondent as to the employee status of the owner-operators would be a defense need not be determined. It has been seen that on several occasions the Respondent was informed that Perkins' own- er-operators were not employees, but independent contrac- tors. Under those circumstances, having been advised of the true facts, the Respondent assumed the risk that the owner-operators, whom it knowingly involved in its activi- ty, were in fact secondary employers. See Local Union No. 767, Laborers International Union of North America, AFL- CIO (Florida Planned Communities, Inc.), 209 NLRB 586 (1974). That Perkins had employees within the projected bargaining unit at the time the activity began is not a de- fense, since the Respondent's demand and its actions were not restricted to them, but included secondary employers. The Respondent's contention that it did not in fact know the status of the owner-operators, and was unable to secure a Board determination as to the issue, is thus beside the point.l3 13 It would seem that the entire controversy might have been avoided by a representation proceeding. In view of the concern of Congress over the involvement of secondary employers in recognitional disputes, among others, and the procedures provided in Secs. 8(b)(4)(C) and 9 of the Act, it would seem that the Act may perhaps be interpreted to contain some ready method of resolving controversies of this kind without resort to unfair labor practice litigation Clearly Perkins, the Charging Party, could have filed a petition under Sec. 9 of the Act asking for a determination as to whether the Respondent was a bargaining representative entitled to recognition . Its fail- ure to do so suggests that Perkins did not utilize all available statutory mechanisms to settle the matter peaceably Nor do the Respondent's action indicate that it used all diligence to have the issue of status resolved by statutory procedures While the Respondent asserts, without denial, that it invited Perkins to file an RM petition in order to resolve the status of the owner-operators, because the Respondent could not file one itself due to its lack of a 30-percent showing of representation, those factors are of doubtful applicability Though Sec. 101.17 of the Board's Statements of Procedure contains a provision to the effect that, where the petitioner in a representa- tion case is a labor organization , it must supply evidence of representation, I find nothing in the statute or the Board's Rules and Regulations requiring such a showing in the instant kind of situation . As this case evidences, the most certain effect of such a requirement is to produce perhaps avoidable interruptions of businesses, physical confrontations, police problems, and 431 Nor is it a defense that some of the Respondent's activity was carried on in connection with card checks by'the Min- neapolis Building Trades Council. Officials of the Respon- dent were present at and participated in the secondary ac- tivities on such occasions, and were assisted at times by officials of other unions. In addition, representatives of some of those unions testified that they were present, at least in part, for the purpose of supporting the Respondent's attempt to organize Perkins. It is consequently found that by its course of conduct set forth above the Respondent induced and encouraged indi- viduals employed by Perkins, Fabcon, and Bor-Son to en- gage in a strike or refusal to perform services within the course of their employment, and threatened, coerced, and restrained Perkins, Fabcon, Bor-Son, and Paper Calmen- son, with an object- of forcing or requiring owner-operators of Perkins, who are self-employed persons or employers, to become members of Respondent, and of forcing or requir- ing Fabcon, Bor-Son, and Paper Calmenson to cease doing business with Perkins. It is further found that such of that conduct as has oc- curred since May 7, 1974, is violative of Section 8(b)(4)(i) and (ii)(A) and (B) of the Act. Upon the basis of the foregoing findings and conclu- sions, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue, the following recommend- ed: ORDER14 The Respondent, Construction Building Material, Ice & Coal Drivers and Helpers and Inside Employees, Local Union No. 221, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Inducing or encouraging any employee of Perkins Motor Transport, Inc., Fabcon Inc., Bor-Son Construction Company, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to per- form any services, where an object thereof is: (1) forcing or requiring owner-operators of Perkins, or any employer or the maintenance of litigation-results quite the opposite of those intended by the statute It is therefore possible that a requirement for showing of interest is inapposite in circumstances such as these, where the essential issue, perhaps dispositive of the entire matter, is not whether the Union has sufficient representation to warrant holding an election, but rather involves a question of law as to whether the individuals involved are employees However, the Respondent did not file a petition to test the point, and it ceased its activity before 30 days after its commencement, thereby preclud- ing a determination under Sec 8(b)(7)(C) of the Act of the status of the owner-operators without a showing of interest , as therein provided. Thus the Respondent also avoided invocation of procedures which may have made the present litigation unnecessary 14 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self-employed person, to join the Respondent, or (2) forc- ing or requiring Fabcon, Bor-Son, Paper Calmenson and Co., or any other employer or person, to cease doing busi- ness with Perkins. (b) Threatening, coercing, or restraining Perkins, Fab- con, Bor-Son, or Paper Calmenson, or any other person engaged in commerce or in an industry affecting com- merce, where an object thereof is: (1) forcing or requiring owner-operators of Perkins, or any employer or self-em- ployed person, to join the Respondent, or (2) forcing or requiring Perkins or any other employer to recognize or bargain with the Respondent or any other labor organiza- tion as a representative of its employees, unless the Re- spondent or other labor organization has been certified by the Board as the representative of such employees. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post in the Respondent's business offices, meeting halls, and all places where notices to members are custom- arily posted, copies of the attached notice marked "Appen- dix." 15 Copies of such notice, on forms provided by the Regional Director for Region 18, shall, after being signed by the Respondent's representative, be posted by the Re- spondent immediately upon receipt thereof, and main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) mail to the Regional Director for Region 18, suffi- cient signed copies of the aforementioned notice for post- ing by Perkins, Fabcon, Bor-Son, or Paper Calmenson, those companies willing, at any of their places of business in the Minneapolis-St. Paul area. (c) Notify the Regional Director for Region 18, in writ- ing, within 20 days after date of this Order, what steps the Respondent has taken to comply herewith. 15 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."