Local 814, Intl. Brotherhood of Teamsters

LOCAL 814, INTL. BROTHERHOOD OF TEAMSTERS Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Bader Brothers Warehouses, Inc. Cases 29- CC-476 and 29-CE-33 June 30, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 28, 1976, Administrative Law Judge Paul Bisgyer issued the attached Decision in this pro- ceeding. Thereafter, General Counsel and the Charg- ing Party filed exceptions and a supporting brief, and Respondent filed a brief in support of his Decision. 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' 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- ' The General Counsel has filed a posthearing motion requesting dismiss- al of the consolidated complaint based on a recent Board decision which issued subsequent to the Administrative Law Judge's Decision herein, and the Charging Party has filed an opposition thereto In the case relied on by the General Counsel the Board concluded that the sale of assets in liquidat- ing a business is not "doing business" within the meaning of Sec 8 (e) of the Act, and we find that principle to be an alternative basis supporting the conclusion reached herein See District No 71, International Association of Machinists and Aerospace Workers, AFL-CIO, (Harris Truck and Trailer Sales Inc ,), 224 NLRB No 10 (1976), see also International Union of Oper- ating Engineers, Local No 701, AFL-CIO (Cascade Employers Association, Inc), 221 NLRB 751 (1975) 2 We agree with the Administrative Law Judge 's analysis of the cases relied on by the General Counsel and with his conclusion that these cases are not dispositive of the issues presented here However, we note that cer- tain of the Administrative Law Judge 's comments give rise to an inference that subcontracting clauses by their very nature evidence a lack of any work-preservation object Any such inference would be improper , for the Board has on numberous occasions found various subcontracting clauses to have a proper work-preservation object in a variety of contexts See, e g, W A Boyle, et al, as agents for the international Union, United Mine Work- ers of America, 179 NLRB 479 ( 1969) Inasmuch as we agree with the Ad- ministrative Law Judge that art 50B is a valid work-preservation clause, having a different object from that found in the "no subcontracting" cases referred to above , we find it unnecessary to rely on any of his comments which may be interpreted as implying that "no subcontracting" clauses are per se unconcerned with work preservation 609 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be dismissed. DECISION STATEMENT OF THE CASE PAUL BISGYER , Administrative Law Judge: This consoli- dated proceeding, with all the parties represented, was heard on September 17 and 18, 1975, in Brooklyn, New York, on the consolidated complaint of the General Coun- sel issued on August 6, 1975,' as amended at the hearing, and the answer of Local 814, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent . In issue is the question of whether the Respondent violated Section 8(e) and 8(b)(4)(i), (ii)(A) and (B) of the National Labor Rela- tions Act, as amended,' in its efforts to enforce a provision in a collective-bargaining agreement committing Bader Brothers Warehouses , Inc., to require the purchaser of all or part of its moving and storage operations to assume the obligations of such agreement, including the employment of the unit employees . At the close of the hearing, the par- ties waived oral argument . Thereafter, the General Counsel and the Respondent filed helpful briefs in support of their respective positions. Upon the entire record, and from my observation of the demeanor of the witnesses , and with due consideration being given to the arguments advanced by the parties, I make the following: ' The consolidated complaint is based on separate charges filed in the indicated cases on June 27, 1975, copies of which were duly served on the Respondent by registered mail the same day 2 Sec 8(b)(4), among other things , makes it an unfair labor practice for a labor organization or its agents, (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting com- merce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any serv- ices, or (u) to threaten, coerce , or restrain any person engaged in com- merce or in an industry affecting commerce, where in either case an object thereof is (A) forcing or requiring any employer to enter into any agree- ment which is prohibited by Section 8(e), (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other produc- er, processor, or manufacturer , or to cease doing business with any other person Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing Insofar as relevant , Sec 8(e) makes it an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied , whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter contain- ing such an agreement shall be to such extent unenforceable and void 225 NLRB No. 78 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANIES INVOLVED At all material times and until March 26, 1975, Bader Brothers Warehouses, Inc., Bader Brothers Van Lines, Inc., and Bushwick Trailers, Inc.,3 separate New York corpora- tions, maintained their principal office and place of busi- ness at 475 Underhill Avenue, Syosset, New York .4 In ad- dition to warehousing facilities, this building, which is owned by Bader Warehouses, contains a furniture repair shop, garage, vehicle repair shop and offices. Prior to March 26, 1975, Bader Warehouses was engaged in the business of local moving and storage of household and other goods and commodities, while Bader Van Lines per- formed long-distance, interstate moving services under an Interstate Commerce Commission certificate, using drivers supplied by Bader Warehouses and independent owner- operators. During the same period, Bushwick was engaged in the business of buying, selling, and leasing trucks, trac- tors, trailers, and other vehicles. Most of this equipment was leased to Bader Warehouses and Bader Van Lines for use in their moving and storage operations. A small per- centage of Bushwick's leasing and sales business was trans- acted with stranger companies or with independent owner- operators employed in the Bader Van Lines' moving enter- prise. Bushwick also operated a vehicle maintenance and repair shop at the Syosset facility which serviced the vehi- cles utilized by Bader Warehouses and Bader Van Lines in their operations. It is clear from the record that at all relevant times Bader Warehouses, Bader Van Lines, and Bushwick comprised a closely knit, affiliated and integrated business organization under centralized control, having common family owner- ship, officers, and direction. Herman Bader, the president of all three corporations, formulated a common labor poli- cy which Fred Bauer, a relative, administered as the gener- al manager of these corporations. I find, for purposes of the Act, that a single employer relationship existed among the three corporations. During the year preceding the issuance of the complaint herein on August 6, 1975, Bader Warehouses, in the regular course and conduct of its business operations, derived gross revenue in excess of $500,000, of which more than $50,000 was received for the transportation of household goods and other commodities across state lines. According- ly, I find that Bader Warehouses individually, and the three above-named corporations as a single-integrated em- ployer, at all significant times were engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. Golden Cycle Van and Storage of New York, Inc., here- in called Golden Cycle, is a New York corporation en- gaged in the business of local and interstate moving and 3 These corporations will be collectively referred to as the Bader Corpora- tions and individually as Bader Warehouses, Bader Van Lines, and Bush- wick, respectively a Since March 26, 1975, the Bader enterprises have maintained their prin- cipal corporate office at the residence of their president , Herman Bader, in Roslyn, New York, although they continue to occupy some space in the Syosset facility for the purpose of winding up their business affairs storage of household goods and other commodities and of providing related services at the Syosset facility where it has maintained its principal office and place of business since on or about March 17, 1975. In the regular course of its business operations, Golden Cycle derives gross reve- nues at a projected annual rate in excess of $500,000 of which more than $50 ,000 is received from the transporta- tion of household goods and other commodities across state lines . I find that Golden Cycle is an employer en- gaged in commerce and in an industry affecting commerce within the meaning of Sections 2(6) and (7) and 8(b)(4) of the Act. II THE LABOR ORGANIZATION INVOLVED I find that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction, Issues Presented Since 1952, when the Bader Corporations were created as offshoots of their predecessor, Bader Brothers, Inc., Bader Warehouses and the Respondent have maintained a continuous collective-bargaining relationship with respect to Bader Warehouses' moving and storage employees con- sisting of chauffeurs, warehousemen, packers, hi-lo opera- tors, checkers, and helpers employed at the Syosset facility. Their most recent contract,5 which has a 3-year term run- ning from April 1, 1974, through March 31, 1977, provides in article 50, entitled "Parties Bound," the following: B. This Agreement shall also be binding upon the successors, administrators, executors and assigns of the parties either signatory hereto, or who are by membership in an Association as above set forth bound to the terms hereof. In the event an entire oper- ation or part thereof, is sold, leased, transferred or taken over by sale, transfer, lease, assignment, receiv- ership, or bankruptcy proceeding, such operation or part of an operation shall continue to be subject to the terms and conditions of this Agreement during the term hereof. On the sale, transfer or lease the specific provisions of this Agreement shall prevail. It is under- stood that the parties hereto shall not use any leasing device to a third party to evade this Agreement. The Employer shall give notice of the existence of this Agreement to any purchaser, transferee, lessee, assign- ee, etc. of the operation covered by this Agreement, or any part thereof. Such notice shall be in writing and a copy served upon the Union at the time the seller, transferor or lessor executes a contract or transaction This is the same type of contract the Respondent has negotiated with various moving employer-associations which Bader Warehouses indepen- dently executed with the Respondent Bader Warehouses' affiliated corpo- rations, Bader Van Lines and Bushwick , were not parties to this agreement as they did not employ moving or storage employees Bader Van Lines, however, utilized employees of Bader Warehouses in its long-distance oper- ations whenever needed On those occasions , the employees remained sub- ject to the terms and conditions of employment embodied in the collective- bargaining agreement, pursuant to a verbal understanding between the par- ties reached in 1971 LOCAL 814, INTL. BROTHERHOOD OF TEAMSTERS 611 as herein described. The union shall also be advised of the exact nature of the transaction excluding financial details. In the event the Employer fails to require the purchaser, transferee or lessee to assume the obliga- tions of this Agreement, the Employer shall be liable to the Union, and to the employees covered, for all damages sustained as a result of such failure to require assumption of the terms of this Agreement; but shall not be liable after the purchaser, transferee or lessee has agreed in writing to assume the obligation of this Agreement. A related clause in article 21 H of the contract dealing with seniority provides, in pertinent part, that Whenever one company is absorbed by, merged with, purchased or acquired in any manner by another company, the employees of both companies shall be integrated into one Seniority List by their dates of original employment ... . Charles Martelli, the Respondent's secretary-treasurer, credibly testified that article 50 B was first negotiated and embodied in the bargaining contract in 1965 to assure the continuity in employment of the unit employees of a com- pany taken over by another. It was the Respondent's attempt to enforce rights it claimed under article 50 B that gave rise to the unfair labor practice charges herein. As will be discussed later in greater detail, the Bader Corporations decided, among other things, to terminate their moving and storage operations. Accordingly, in September 1974 they entered into a con- tract with Greyhound Van Lines, Inc., for the sale of most of their rolling stock and other physical assets and equip- ment used in the moving and storage business. In addition, Bader Warehouses, as owner, executed a 10-year lease to Greyhound of the Syosset facility. By March 25, 1975, the transfer of assets and the occupation of the Syosset facility were completed. At that time, Golden Cycle, a recently created subsidiary of Greyhound or of the latter's parent organization, commenced the moving and storage business at the Syosset facility with the purchased assets. Bader Warehouses, for its part, simultaneously terminated its op- erations and the employment of its employees covered by the above bargaining contract .6 Admittedly, Bader Ware- houses did not require Golden Cycle to assume the obliga- tions of its bargaining contract with the Respondent, nor did Golden Cycle voluntarily agree to do so, despite the Respondent's demands and warning that it would take whatever lawful action was necessary to protect its mem- bers and the integrity of that contract. As a consequence, on March 26, 1975, the Respondent began picketing the Syosset facility with signs stating that it was on strike against Golden Cycle and Bader Brothers. On the same day, the Respondent, acting pursuant to the bargaining agreement, requested the moving and storage joint labor-management board to hear and determine its dispute with Bader Brothers over the latter's violation of the bargaining contract in not requiring Golden Cycle to 6 Bader Van Lines also discontinued its long-distance moving operations, as did Bushwick in terminating various aspects of its operations assume the obligations thereunder. Subsequently, the Re- spondent and Bader Warehouses agreed to bypass the joint board and submit their dispute to arbitration in accor- dance with the rules and regulations of the American Ar- bitration Association. Although an arbitrator has been des- ignated, further arbitration proceedings have been suspended because of the pendency in a United States Dis- trict Court of the General Counsel's petition for a tempo- rary injunction under Section 10(1) of the Act. For the same reason, picketing also ceased on July 25. As indicated above, the amended complaint alleges that the Respondent's efforts to secure compliance by Bader Warehouses with artice 50 B of the bargaining contract and to achieve Golden Cycle's assumption of the obliga- tions of that contract violated Section 8(e) and 8(b)(4)(i), (u)(A) and (B) of the Act. Since there is no question con- cerning the Respondent's actions to accomplish those ends, the critical issues to be resolved are threefold. One is whether article 50 B is the type of a so-called "hot cargo" clause which contemplates a secondary boycott prohibited by Section 8(e), as the General Counsel contends it is, or whether it is a valid work-preservation clause designed to save the jobs of unit employees and therefore is primary in nature and permissible under the Act, as the Respondent urges it is. The second question is whether the sale of capi- tal assets and the leasing of property involved in the termi- nation of Bader Warehouses' moving and storage business constitute "doing business" within the meaning of Section 8(e) of the Act and fall within the protective scope of that provision. The final question presented is whether the Respondent's picketing in part, directed against Golden Cycle, is a form of secondary activity prohibited by Section 8(b)(4)(B) of the Act. Focusing our attention on these crit- ical issues, we turn to the evidence. B. The Evidence 1. The sale of the physical assets of the Bader Corporations and the leasing of the Syosset facility; the termination of the moving and storage operations As indicated above, the three Bader corporations com- prise a single, integrated business enterprise. Prior to March 25, 1975, Bader Warehouses furnished local moving and storage services; Bader Van Lines performed the long- distance moving, using Bader Warehouses' employees or independent owner-operators; and Bushwick purchased new and used tractors, trailers, trucks, and other rolling equipment which it leased to its affiliated companies for their moving and storage operations, although it also sold or leased such equipment on a much smaller scale to stranger companies or independent owner-operators em- ployed by Bader Van Lines. Bushwick also operated the vehicle repair shop located at the Syosset facility, where the tractors, trailers, and trucks utilized by Bader Warehouses and Bader Van Lines in their operations were serviced. The Syosset warehouse, which the Bader corporations occu- pied, and the adjoining property are owned by Bader Warehouses. Before September 1974, the Bader corporations decided to terminate their moving and storage business, as well as 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their related operations, and to dispose of their assets. Ac- cordingly, on that date, following a series of negotiations with Greyhound Van Lines, Inc., the Bader corporations and Greyhound concluded an agreement for the sale to Greyhound of most of the rolling stock and other physical assets and equipment used in the moving and storage oper- ations, such as, tractors, trailers, trucks, and other vehicles, and warehouse, office, furniture repair shop, and truck re- pair equipment. Excluded from the sale, however, were the Bader corporations' good will, trade names, customer lists, accounts receivable, Federal and state certificates authoriz- ing the conduct of local and interstate transportation oper- ations, some lots of unclaimed household furniture, ap- proximately six tractors or trailers and several personal cars.8 As part of this transaction, Bader Warehouses, as owner, leased to Greyhound for a 10-year period its Syo- sett building, which housed the warehousing, furniture re- pair, vehicle repair,9 garage and other facilities, and a por- tion of adjoining real property. The transfer of the sold assets and leased premises was thereafter effected on a gradual basis until its completion on March 25, 1975. In the meantime, Golden Cycle was formed and incorporated in February 1975 as a subsidiary of Greyhound or the latter's parent organization to con- duct the Syosset moving and storage operations. On March 17, 1975, Golden Cycle took possession of the assets and the Syosett facility and began recruiting help. As of the date of the hearing in this case, Golden Cycle had hired some 15 employees to perform moving and storage work. Its business comes directly from the public or referral by affiliated companies. During the period preceding the termination of its mov- ing and storage business, Bader Warehouses and Bader Van Lines notified its customers of their intentions to dis- continue those operations. On March 17, 1975, Fred Bauer, the general manager of the Bader Corporations, met with the employees who were at work that day. These employ- ees were among the nine men included on the then current seniority list Bader Warehouses maintained.10 Bauer told 7 There is evidence that, before the Greyhound negotiations, similar nego- tiations were held with Pan-American Van Lines, Inc, in the winter of 1973 and early spring of 1974 which did not materialize It also appears that Bader Warehouses had previously sold an auxiliary warehouse in Brooklyn, New York, to Coventry Van Co and the four Bader employees there em- ployed continued working for the new owner s It appears that the local transportation certificates were subsequently sold to another company and that the Interstate Commerce Commision certificate was in the process of being sold at the time of the hearing in this case There is also testimony that at the time of the Greyhound transaction the six tractors or trailers were located in Atlanta, Georgia, that one of them was sold to American Secunty Van Lines in late 1974 or early 1975, and that the remaining five pieces of equipment were in American Security's possession under a lease arrangement since the beginning of 1974 The per- sonal cars, which are also owned by Bushwick, have not yet been disposed of 9 As a consequence, Bushwick subsequently discontinued operating the vehicle repair shop 10 Bader Warehouses maintained this list pursuant to the terms of its collective-bargaining agreement with the Respondent Employees were eligi- ble for a position on this list after completion of 30 working days in any 90-day working period This list, which was arranged by job classification and seniority, was used for assigning employees to household moving and storage jobs A straight payroll seniority list was used for commercial mov- ing assignments No employee could be hired before the applicable list was the assembled employees that Bader was going out of the moving and storage business for economic reasons and that the two moving jobs which were then in progress would be the last to be performed. Thereafter, on March 25, Bader corporations terminated their moving and storage operations and discharged their nine bargaining unit employees. However, the Bader cor- porations continued to occupy space at the Syosset facility for the sole purpose of winding up their affairs, retaining Bauer and an office employee to handle such matters. The executive offices were also moved to President Herman Bader's residence. Whatever ultimate use is to be made of the corporate structure of the Bader corporations, Bader made it clear that he had no intention of resuming the moving and storage operations. 2. Bader Warehouses' breach of article 50 B of its bargaining contract; the Respondent's efforts to secure compliance by Bader Warehouses and the assumption of contractual obligations by Golden Cycle It is undisputed that Bader Warehouses did not require Golden Cycle to assume the obligations of Bader Ware- houses' bargaining contract with the Respondent as therein provided in article 50 B, quoted above; nor did Golden Cycle voluntarily assume those obligations. Moreover, al- though the Respondent probably became aware of the Greyhound transaction shortly after its consummation in September 1974,11 it is clear that no written notification prescribed in the bargaining contract was ever given to it. On or about February 21, 1975, the Respondent's busi- ness agent, Denetra, requested General Manager Bauer to arrange a meeting for him with President Herman Bader to discuss the Greyhound matter. No such meeting, however, was held. Thereafter, on March 18, following Bauer's noti- fication to the employees of the scheduled termination of Bader's moving and storage business and their discharge effective on March 25, Philip Doran, another business agent of the Respondent, visited Bauer at his office. In answer to Doran's inquiries, Bauer informed him that the Bader corporations were discontinuing their moving and storage operations; that he had notified the employees of this decision the day before; and that he was in the process of winding up this business. On March 19, Doran returned to the Syosset facility where Bauer introduced him to William Cross, the manag- er of Golden Cycle, and James Deuel, the division manag- er of Smyth Greyhound, an affiliated organization. Doran questioned Cross and Deuel concerning their operation and was informed that Golden Cycle had purchased assets first exhausted Although the contract provides that prior to hiring anyone not on the seniority list the "Union shall be notified and given the opportu- nity to refer applicants on a nondiscriminatory basis" (art 10, par P, 1), the Respondent does not operate a formal hiring hall 1 According to Bauer's uncontradicted and credited testimony, the Grey- hound sales transaction was reported in the Wall Street Journal about Sep- tember 13, 1974, at which time he confirmed the report to employee Wor- den, a member of the Respondent, who questioned him about it Bauer also testified that he further advised Worden that it was premature to go into any details There is additional credible testimony by President Herman Bader that the following November the Respondent 's business agent, Denetra, requested an appointment with him to discuss the Company's business ar- rangements with Greyhound but that such meeting was never scheduled LOCAL 814, INTL. BROTHERHOOD OF TEAMSTERS 613 from Bader and rented the facility where it would be en- gaged in the moving and storage business. Stating that he did not feel well, Doran asked to continue their conversa- tion at another time and Cross agreed. On his departure, Doran handed Cross a copy of the Respondent's standard contract to which Bader Warehouses was a party and sug- gested that Cross read it. The next day, Doran and Denetra visited Cross and Deuel. The business agents asked Cross and Deuel whether they would accept the Respondent's existing contract with Bader Warehouses. Instead of replying directly, Cross and Deuel indicated that Golden Cycle's operation might be different from Bader's and briefly went into some details. When Doran and Denetra repeated their inquiry about signing the contract, Cross and Deuel answered that they lacked the power to do so on their own, adding that the contract was not designed for the type of business Golden Cycle contemplated engaging in and proposed that a com- promise be worked out more suitable to their needs. Doran rejected the idea. At one point in the conversation, Deuel expressed his disapproval of some of the Respondent's work rules. Before Doran and Denetra departed, they asked whether Golden Cycle would employ the moving and storage employees of Bader Warehouses and Cross re- sponded that he would accept employment applications from them, as well as from other individuals, and that he would hire those persons who fit Golden Cycle's require- ments. On the same day, March 20, the Respondent's president Vincent Bracco, sent the following telegram to Bader Bros., Inc.: We have learned that you intend to sell or have sold your operation to Golden Cycle Van of New York, Inc. In accordance with the terms of our collective bargaining agreement with this Union you are re- quired among other things to give notice of existence of this agreement to Golden Cycle in writing with a copy of said notice to be served upon the union and the exact nature of your transaction with Golden Cy- cle excluding financial details. You have not done so, and we demand that you do so immediately. You must also require Golden Cycle to assume the obligations of said agreement. You have not done so and we demand that you do so immediately. If you fail to require Golden Cycle to assume the obligations of said agree- ment you will be held liable to the Union and the employees for all damages sustained as a result of your failure to require assumption of the terms of this agreement and the Union shall take whatever lawful action it deems necessary to protect its members and the integrity of its contract. To Golden Cycle, the Respondent's president sent this telegram: We understand you are purchasing and taking over the operation of Bader Bros., Inc. This Union has a collective bargaining agreement with Bader Bros., Inc., covering the operation you are purchasing and taking over. Pursuant to Article 50 of said agreement entitled, Parties Bound, we demand that you agree in writing to assume the obligations of said agreement. Please notify the undersigned promptly in writing that you assume the obligations of said agreement. Your failure to do so will compel the Union to take whatev- er lawful action is necessary to protect our members and the integrity of our contract. On March 25, Herman Bader advised the Respondent that he was turning over the telegram directed to him to Golden Cycle. The next day, the Respondent received a letter from Golden Cycle to the effect that it was not prof- itable for it to abide by the bargaining contract because Golden Cycle's operations would be different from Bader's. 3. Picketing at the Syosset facility; the institution of arbitration proceedings Not having succeeded in its efforts to secure Bader Warehouses' compliance with its commitment in article 50 B of their bargaining contract to require Golden Cycle to assume those contractual obligations or to persuade Golden Cycle voluntarily to assume those obligations, the Respondent on March 26, 1975, established a picket line on the sidewalk in front of the Syosset facility. According to Charles Martelli, the Respondent's secretary-treasurer, the Respondent took this action to protest Bader Ware- houses' violation of its agreement, and Golden Cycle's re- fusal to assume the contractual obligations and to retain the unit employees in its employ. The picketing was con- ducted peacefully by the discharged employees of Bader Warehouses and other members of the Respondent. The number of pickets varied between one and eight and on certain days none appeared at all. The signs carried by the pickets bore the following legend: Local 814, I.B. of T. on strike against Golden Cycle Vans, of New York, Inc. and Bader Brothers. No dis- pute with any other employer." Picketing continued until July 25, 1975, when it was sus- pended during the pendency of proceedings in a United States District Court initiated by the General Counsel for a 10(1) injunction. By letter dated March 26, 1975, the Respondent request- ed the moving and storage joint labor-management board, the forum established in the parties' bargaining contract to hear and resolve contractual disputes, to consider the Respondent's dispute with Bader Warehouses over the latter's failure to comply with article 50 B and to determine the remedy. Admittedly, the Respondent, among other things, sought damages it and the unit employees sus- tained. At a subsequent meeting of the joint board, the Respondent and Bader Warehouses, at the Respondent's request, entered into a written stipulation dated May 7, 1975, whereby they agreed to bypass the joint board and submit their dispute to arbitration conducted under the auspices of the American Arbitration Association. There- after, pursuant to the stipulation, arbitration proceedings were instituted and an arbitrator was selected. Although a hearing before the arbitrator was scheduled for July 14, 1975, no testimony on the merits has been taken and the 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arbitration proceedings are apparently still pending. In the meantime, on June 27, 1975, Bader Warehouses filed the unfair labor practice charges in the present case. C. Analysis; Concluding Findings Basic to a determination whether the Respondent violat- ed Section 8(e) and 8(b)(4)(i), (ii)(A) and (B), as alleged in the amended complaint, is the question of the validity of article 50 B of its collective-bargaining contract with Bader Warehouses. As shown above, article 50 B committed Bad- er to require a purchaser of its operations or any part to assume the obligations of the bargaining contract, which undeniably included the retention in the purchaser's em- ploy of the unit employees of Bader Warehouses on the established seniority list. This clause also provided for the payment by Bader Warehouses of damages sustained by the Respondent and the covered employees if Bader Ware- houses failed to require the purchaser to assume the con- tractual obligations. The General Counsel contends that, since Bader Warehouses was thus precluded from doing business with a purchaser who was unwilling to assume the bargaining contract, the Respondent's attempted enforce- ment violated the indicated sections of the Act. The Re- spondent, on the other hand, insists that article 50 B is essentially a valid work preservation clause not encom- passed by the proscription of Section 8(e).12 Section 8(e), in pertinent part, makes it an unfair labor practice for any labor organization and any employer "to enter into any contract or agreement . . . whereby such employer ceases or refrains or agrees . . . to cease doing business with any other person, and any contract or agree- ment entered into . . . containing such an agreement shall be to such extent unenforceable and void ...." In Na- tional Woodwork," the Supreme Court held that a contract clause designed to protect and preserve work customarily performed by employees in the bargaining unit was prima- ry in nature and therefore not prohibited by Section 8(e) From its review of legislative history, the Court observed (at 635) that, "[a]though the language of § 8(e) is sweeping, it closely tracks that of § 8(b)(4)(A), and just as the latter and its successor § 8(b)(4)(B) did not reach employees' ac- tivity to pressure their employer to preserve for themselves work traditionally done by them, § 8(e) does not prohibit agreements made and maintained for that purpose." To determine whether a particular contract clause violates Section 8(e), the Court continued (at 644), requires an in- quiry into "whether, under all the surrounding circum- stances, the Union's objective was preservation of work for ... [unit] employees [which would be primary and there- 12 Preliminarily, it is noted that , although the 6-month limitation period prescribed in Sec 10(b) of the Act , precludes the issuance of a complaint based on the execution of the bargaining agreement here involved , there is no question that the Respondent 's attempted enforcement of art 50 B, is, under settled law, tantamount to a reaffirmance of, and therefore an enter- ing into, that agreement as that term "to enter" is used in Sec 8(e) Interna- tional Organization of Masters, Mates and Pilots, AFL-CIO (Seatram Lines, Inc), 220 NLRB 164 (1975), Milk Drivers and Dairy Employees, Local Union No 537 (Sealtest Foods, A Division of National Dairy Products Corporation), 147 NLRB 230, 231 (1964) 13 National Woodwork Manufacturers Association, et al v N L R B, 386 U S 612 (1967) fore permissible], or whether the agreements . . . were tac- tically calculated to satisfy union objectives elsewhere," which would be secondary and unlawful. Otherwise stated (at 645), the "touchstone is whether the agreement or its maintenance is addressed to the labor relations of the con- tracting employer vis-a-vis his own employees." Applying these tests to the facts of the instant case, I find that article 50 B has as its objective the protection and preservation of the jobs of unit employees in the event Bader Warehouses disposed of all or part of its moving and storage operations. There is absolutely nothing in the clause or in the record indicating that the clause is aimed at fostering the Union's own organizational interests distinct from the unit employees' job security, which certainly is within the area of proper union concern. In these circum- stances, I find that article 50 B, addressed, as it is, to the labor relations of Bader Warehouses with respect to its own employees and not being "tactically calculated to sa- tisfy union objectives elsewhere," is a legitimate work pres- ervation provision, having a primary objective to save the jobs of unit employees jeopardized by the sale of the Bader Warehouses' operations, which Section 8(e) of the Act does not reach. In this respect, the decisions in Commerce Tank- ers,14 and Seatrain, l5 relied on by the General Counsel to support a contrary result, are clearly inapplicable. In nei- ther case was the disputed clause intended to protect or preserve the jobs of unit employees holding them. In Com- merce Tankers, it was the union's practice for the seamen who manned the ship to leave it when it was sold and to be replaced by other seamen referred from the union's hiring hall. In Seatrain, the vessel was newly built and until it was sold, it never had a crew whose jobs needed protection. It thus appears that, unlike the situation in the case at bar, the disputed clauses in the cited cases had an unlawful secondary objective to advance the unions ' own organiza- tional goals to promote jobs with other employers for their membership as a whole through their hiring halls.16 The General Counsel, nevertheless, argues that article 50 B, in addition to protecting thejobs and economic interests of the employees of Bader Warehouses, requires the pur- chaser to assume noneconomic obligations such as union recognition. From this premise, the General Counsel rea- sons that article 50 B is similar to a union signatory sub- contracting agreement which permits the employer to sub- contract work only to other employers who agree to recognize the union as the bargaining representative of their employees. Since such an agreement concededly vio- lates Section 8(e), the General Counsel concludes that arti- cle 50 B is similarly unlawful. I find the analogy untenable and the contention without merit. In the first place, the subcontracting of work, by hypoth- esis, is not concerned with the preservation of work for unit 14 National Maritime Union of America, AFL-CIO (Commerce Tankers Corporation), 196 NLRB 1100 (1972), enfd 486 F 2d 907 (C A 2, 1973) 1 Supra i6 Also distinguishable from the present case is Sealtest Foods, supra, cited by the General Counsel, where the Board found violative of Sec 8(e), a clause in a contract restricting the sale of distribution routes only to those individuals whose route drivers servicing the routes will come under the provisions of the seller's bargaining contract with the union Manifestly, the disputed clause was not designed to preserve lobs for the seller's employees LOCAL 814, INTL BROTHERHOOD OF TEAMSTERS 615 employees 17 and therefore the situation is clearly not ana- logous to the one in the present case." Secondly, the fact that the purchaser's assumption of the Bader Warehouses' bargaining agreement would require him to recognize the Respondent does not inevitably establish the invalidity of article 50 B. This is so because, if the purchaser were to retain in its employ the unit employees of Bader Ware- houses, all of whom are members of the Respondent, he might well become, as the successor, the employing indus- try duty-bound under the Act to recognize the Respondent as the exclusive representative of his employees in an ap- propriate unit.19 In any event, it can hardly be contended that if a purchaser, pursuant to the bargaining contract between Bader Warehouses and the Respondent, assumed the contractual obligations, including the retention of unit employees and recognition of the Respondent, it would be in violation of the Act. Indeed, in Burns, supra, the Su- preme Court held that a successor-employer was not bound by the substantive provisions of a bargaining agree- ment negotiated by its predecessor with the union only be- cause it had not voluntarily agreed to or assumed the con- tract. Moreover, it is beyond question that successor clauses of the type here involved which, among other things, assure employees job security and continuing bene- fits, are appropriate and vital subjects for collective bar- gaining and are frequently embodied in negotiated agree- ments. 0 As the Supreme Court so aptly noted'21 "It would therefore be incongruous to interpret § 8(e) to invalidate clauses over which the parties may be mandated to bargain and which have been successfully incorporated through collective bargaining in many of this Nation's major labor agreements " In summary, I find that article 50 B of the Respondent's bargaining contract is a legitimate work preservation clause designed to assure unit employees continued em- ployment, which does not contravene Section 8(e) of the 17 Cf East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, and United Steelworkers of America, AFL-CIO [Fibre- board Paper Products Corp J v N L R B, 379 U S 203 (1964) 18 For this reason, Local 437, International Brotherhood of Electrical Work- ers, AFL-CIO (Dimeo Construction Co), 180 NLRB 420 (1969), and Build- ing Material & Construction Teamsters Union Local 216 (Bigge Drayage Com- pany), 198 NLRB 1046, enfd 520 F 2d 172 (C A D C, 1975), relied on by the General Counsel, are distinguishable 19 Cf N L R B v Burns International Security Services, Inc, 406 U S 272 (1972) 20 National Woodwork Manufacturers Association, supra, 642, Fibreboard Payer Products Corp, supra i National Woodwork, supra, 643 22 In view of this determination, it is unnecessary to consider the still unsettled question raised by the Respondent whether the sale of capital assets and the leasing of business property in connection with the liquida- tion and termination of the seller's operations constitute "doing business" within the meaning of Sec 8(e) In Commerce Tankers, supra at 1101, the Board reserved that question with respect to industries other than the mari- time industry The Second Circuit, in affirming the Board in that case, expressed doubt that "an isolated sale of a capital item such a ship comes within this language" of "doing business" in Sec 8(e). However, the Court did not consider the point because the NMU attorney disclaimed reliance on it 486 F 2d at 911 Contrary to the General Counsel's assertion, the Board did not decide the question noted in this footnote in Milk Drivers and Dairy Employees, Local Union No 537, supra In that case, the employer did not go out of business but only changed its method of distributing its prod- ucts Cf International Union of Operating Engineers, Local No 701, AFL- CIO (Cascade Employers Association, Inc), 221 NLRB 751 (1975) Act.22 It follows that neither this provision nor Section 8(b)(4)(i) and (ii)(A) was violated by the Respondent's reaffirmation of that clause and the Respondent's efforts to enforce it. To be specific, neither of these statutory provi- sions was violated by the Respondent's demands that Bad- er Warehouses require Golden Cycle, the purchaser of the physical assets and lessee of the Syosset warehouse facility, to assume the contractual obligations , including the em- ployment of Bader Warehouses' unit employees; by the Respondent's picketing of Bader Warehouses to achieve compliance with article 50 B and the employment of unit employees; and by submitting the dispute to arbitration to vindicate asserted contractual rights. Turning to the alleged violation of Section 8(b)(4)(i) and (ii)(B) of the Act, the theory of the amended complaint is that, in furtherance of its dispute with Bader Warehouses, the primary employer, the Respondent picketed and made demands upon Golden Cycle, a neutral employer, with an object of forcing or requiring Golden Cycle to cease doing business with Bader Warehouses. I find this theory very imaginative but untenable. Since the Respondent's dispute with Bader Warehouses stems from the latter's failure to require Golden Cycle to assume the contractual obligations as provided in article 50 B, the General Counsel is, in ef- fect, contending that the Respondent's conduct was aimed at forcing Golden Cycle to put pressure on Bader Ware- houses to yield to the Respondent's demands; namely, to require Golden Cycle to assume the contractual obliga- tions. Manifestly, this is unrealistic for, had Golden Cycle assumed those obligations, there would be no occasion for the Respondent to seek compliance by Bader Warehouses of its contractual commitment In my opinion, the more plausible explanation for the picketing of Golden Cycle at the Syosset facility, which Bader Warehouses also occupied for the purpose of winding up its affairs, is, as the Respon- dent urges, that it was similarly involved in a primary dis- pute with Golden Cycle because of its refusal to assume the obligations of the bargaining contract and to employ the terminated unit employees of Bader Warehouses. By pick- eting in furtherance of this objective, the Respondent "was not extending its activity to a front remote from the imme- diate dispute but to one intimately and indeed inextricably united to it." 23 Accordingly, I find that the Respondent's picketing of Golden Cycle contemporaneously with Bader Warehouses did not constitute secondary boycott activity that Section 8(b)(4)(B) of the Act was intended to reach, whatever other unfair labor practice might have been com- mitted.24 Having found that the General Counsel has failed to sustain any of the alleged violations, the amended consoli- dated complaint will be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: 23 Douds v Metropolitan Federation of Architects, Engineers, Chemists & Technicians, Local 231, 75 F Supp 672, 677 (D C S D N Y ), a case involving the so-called ally doctrine not here applicable 24 Perhaps the picketing might have run afoul of Sec 8(b)(7) of the Act to secure recognition or bargaining rights but such unfair labor practice was not charged and I therefore do not pass judgment on it 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW ORDER 25 1. Bader Warehouses, the Bader Corporations, and It is ordered that the amended consolidated complaint Golden Cycle are employers engaged in commerce and in issued herein against the Respondent, Local 814, Interna- an industry affecting commerce within the meaning of Sec- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- tions 2(6) and (7) and 8(b)(4) of the Act. men and Helpers of America, be, and it hereby is, dis- 2. The Respondent is a labor organization within the missed in its entirety. meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the amended consolidated complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, I hereby issue the following recommend- ed: 25 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