Local 732, Teamsters

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Servair Maintenance, Inc. and National Airlines, Inc. Cases 29-CC-519 and 29-CC-525 May 2, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On November 22, 1976, Administrative Law Judge Robert W. Leiner issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Charging Party National Airlines, Inc., filed exceptions. Respondent filed no exceptions or reply briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge with the modifications set forth below. The primary dispute here is between Respondent and Servair Maintenance, Inc. The Administrative Law Judge found that Respondent, by various picketing and other means, sought to induce indivi- duals employed by National Airlines and other companies to refuse to handle goods or perform services for their employers and also distributed untruthful written communication to travel agents with the purpose of coercing National Airlines to cease doing business with Servair. He concluded that by engaging in such conduct Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act and recom- mended an order proscribing such conduct. No exceptions were filed to these findings and conclu- sion, and they are hereby affirmed. The General Counsel and National Airlines except to the Administrative Law Judge's failure on the basis of his findings of fact to make additional conclusions of law to the effect that Respondent engaged in other conduct proscribed by Section 8(b)(4)(i) and (ii)(B) of the Act. Respondent has taken no position with respect to these matters. The General Counsel requests the Board to find that Respondent's conduct violated the Act not only as found by the Administrative Law Judge, i.e., because it had the object of coercing National ISuch violation is specifically alleged in the complaint. 2 The General Counsel also seems to request a finding that Respondent violated the Act by picketing and handbilling National's locations other than its freight terminal. Such picketing and handbilling were aimed 229 NLRB No. 58 Airlines to cease doing business with Servair, but also because it had the intermediate object of forcing or requiring Emery Airfreight, TWA, and Interline Trucking Co. to cease doing business with National.' The evidence does show, as found by the Adminis- trative Law Judge, that Respondent picketed the National Airlines freight facility located several miles from the passenger terminal where the primary employer's employees worked. The pickets carried signs bearing the legend "Don't Fly National" and also handbilled truckdrivers employed by Emery Airfreight, TWA, and Interline Trucking Co. who were coming to National's loading platform. The picket signs did not refer to Servair and the handbills, though primarily addressed to National's prospective passengers, did request the recipient of the handbill to join the "many people . . . already supporting us and refusing to cross our protest lines." We agree with the General Counsel that such picketing and accompanying handbilling had the proscribed object of forcing Emery Airfreight, TWA, and Interline Trucking Co. to cease doing business with National, the secondary employer, and thus violated Section 8(b)(4)(i) and (ii)(B) of the Act.2 In addition, Charging Party National Airlines requests a finding that Respondent's picketing and handbilling of its customers were unlawful. The record does show that the picketing and handbilling of customers did not limit Respondent's dispute to those services provided by Servair. Rather, their purpose was clearly to persuade the customers of National to seek air transportation elsewhere-i.e., the picket signs read "Don't Fly National"-in order to force National to stop dealing with or to put pressure on Servair. Such picketing was, we find, unlawful.3 CONCLUSIONS OF LAW 1. Servair Maintenance, Inc., National Airlines, Inc., Trans World Airlines, Inc., and Interline Trucking Co., and each of them, is a person engaged in commerce or in an industry affecting commerce within the meaning of Section 2(1), (6), and (7) and Section 8(b)(4) of the Act. 2. Local 732, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. In the period January-April 1976, Respondent, Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by picketing, verbal appeals, and handbilling in- essentially at customers of National and in all practical regards can be subsumed under National's exceptions considered below. 3 N.L.R.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964). 392 LOCAL 732, TEAMSTERS duced individuals employed by National Airlines, Emery Airfreight Co., Trans World Airlines, Inc., and Interline Trucking Co., to refuse to handle or work on materials and to refuse to perform services for their employers and by the above conduct and by untruthful written communications to travel agents coerced National Airlines with an object of forcing or requiring National Airlines to cease doing business with Servair Maintenance, Inc., thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act. 4. By picketing, by verbal appeals, and by handbilling individuals employed by Emery Air- freight Co., Trans World Airlines, Inc., and Interline Trucking Co. in order to force or require those companies to cease doing business with National Airlines, Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act. 5. By picketing and handbilling at National Airlines' terminals and ticket offices with the purpose of forcing or requiring National Airlines to cease doing business with Servair Maintenance, Inc., Respondent violated Section 8(b)(4) and (ii)(B) of the Act. 6. The above unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, New York, New York, it officers, agents, and representatives, shall: I. Cease and desist from: (a) Inducing or encouraging any individual em- ployed by National Airlines, Inc., Emery Airfreight Co., Trans World Airlines, Inc., Interline Trucking Co., 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any service; or threaten- ing, coercing, or restraining the said persons, or any other persons engaged in commerce or in an industry affecting commerce, where in either case an object thereof is enforcing or requiring any of the above or any other such persons to cease doing business with Servair Maintenance, Inc. (b) Inducing or encouraging any individual em- ployed by Emery Airfreight Co., Trans World Airlines, Inc., Interline Trucking Co., 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any service; or threatening, coercing, or restraining the said persons, or any other persons engaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring any of the above or any other persons to cease doing business with National Airlines, Inc. (c) Threatening, coercing, or restraining National Airlines where an object thereof is to force or require National Airlines to cease doing business with Servair Maintenance, Inc. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the Regional Director for Region 29, for posting by National Airlines, Inc., Servair Maintenance, Inc., Emery Airfreight Co., Trans World Airlines, Inc., and Interline Trucking Co., such employees being willing, at all places where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 4 In the event that this 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." 393 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT induce or encourage any individ- ual employed by National Airlines, Inc., Emery Airfreight Co., Trans World Airlines, Inc., or Interline Trucking Co., or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or 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 service; or threaten, coerce, or restrain the aforesaid persons, or any other persons engaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring any of the above or any other persons to cease doing business with Servair Maintenance, Inc. WE WILL NOT induce or encourage any individ- ual employed by Emery Airfreight Co., Trans World Airlines, Inc., Interline Trucking Co., 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any service; or threaten, coerce, or restrain such persons or any other persons engaged in commerce or an industry affecting commerce, where in either case an object of such conduct is to force or require any of the above or any other such persons to cease doing business with National Airlines, Inc. WE WILL NOT threaten, coerce, or restrain National Airlines, Inc., where an object of such conduct is to force or require National Airlines to cease doing business with Servair Maintenance, Inc. LOCAL 732, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: Upon a charge filed by Servair Maintenance, Inc.,' on February 27, 1976, and upon a charge filed by National Airlines, Inc. (hereinafter called National), on April 15, 1976, the General Counsel for the National Labor Relations Board, by the Regional Director for Region 29, issued an Order consolidating cases, complaint, and notice of hearing, all dated April 22, 1976. The complaint alleges that the labor organization, Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter called Respondent, Local 732, or the Union), engaged in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, by conduct hereinafter specified. Respondent, in its timely filed answer, denied the commission of the alleged unfair labor practices.2 It admitted Servair's corporate status, Servair's engaging in interstate commerce, its existence as a person engaged in commerce and in an industry affecting commerce as well as National's status as a person engaged in commerce and an industry affecting commerce, all respectively within the meaning of Sections 2(l), (6), and (7) and 8(b)(4) of the Act. A hearing on the consolidated complaint was held before me on June 1, 2, 4, and 7, 1976. Subsequent to the hearing, Servair, National Airlines, and General Counsel submitted briefs, all of which have been helpful and duly considered. Respondent, in addition, was given an oppor- tunity to make oral argument on the record and did so. Upon the entire record in this case, including the briefs of counsel, oral argument, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF SERVAIR MAINTENANCE, INC. The complaint alleges, Respondent's answer admits, and I find that Servair Maintenance, Inc., hereinafter called Servair, is the wholly owned subsidiary of Servair, Inc. Servair Maintenance, Inc., has been, at all material times, a corporation organized under and existing by virtue of the laws of the State of New York. Its principal place of business, as described at the hearing, has been and is located at Building 150, JFK International Airport in the city and State of New York, where it is, and has been at all times material herein, engaged in providing baggage and cargo handling services, janitorial services, skycap services, and related services to the airline industry. During the year prior to the issuance of the complaint, a representative period of Servair's operations generally, Servair purchased and caused to be transported and delivered to its New York place of business, cleaning materials, vehicle replace- I At the opening of the hearing the parties agreed that the correct name is as shown. Servair Maintenance, Inc., a subsidiary of Servair, Inc., will be referred to as Servair. 2 Respondent alleged three affirmative defenses: lack of Board jurisdic- tion over National Airlines; National Airlines as a "co-employer" of the employees; and Respondent had a right to picket because of two charges it filed in the Regional Office. This Decision treats with the first two of these affirmative defenses. As to the third, no evidence supporting the alleged right to picket was introduced although Respondent alleged that unfair labor practice charges were filed against Servair and the labor organization representing the Servair skycaps. Even if the charges prove to have merit, Servair's unfair labor practices would provide no defense to the alleged unlawful conduct herein of Respondent. Superior Derrick Corporation v. N.L.R.B., 273 F.2d 891, 893 (C.A. 5. 1960), cert. denied 364 U.S. 816. 394 LOCAL 732, TEAMSTERS ment parts, and other goods and materials valued in excess of $50,000 of which goods and materials valued in excess of $50,000 were transported and delivered to the aforesaid place of business in interstate commerce directly from States of the United States other than the State of New York. The complaint alleges, Respondent admits and I find that Servair is, and has been at all times material herein, a person engaged in commerce and in an industry affecting commerce within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act. II. THE BUSINESS OF NATIONAL AIRLINES The complaint alleges, Respondent admits, and I find that National is a Florida corporation, maintaining its principal office and place of business in Miami, Florida, and has various other places of business in the States of the United States, including places of business at JFK and LaGuardia Airports, both in the city and State of New York, and at Newark International Airport in the city of Newark, State of New Jersey. Respondent admits that at all times material herein, National has been continuously engaged in providing airline passenger and freight services and related services. Respondent, however, denies that National is a "person engaged in commerce and in an industry affecting commerce" within the meaning of Sections 2(1), (6), and (7) and 8(b)(4) of the Act. In its answer, Respondent pleads that the National Labor Relations Board does not have jurisdiction over National Airlines but rather that National Airlines is subject to the provisions of the Railway Labor Act, 44 Stat. 577 as amended, 45 U.S.C. § 151. While it is true that the Board has held that Congress has excluded from the definition of "employer" in Section 2(2) of the Labor-Management Relations Act3 "any person subject to the Railway Labor Act," it has not divested the Board of jurisdiction over controversies otherwise within its competence. Airlines, like railroads, are not excluded from the Act's definition of "person" and are entitled to Board protection from the kind of unfair labor practices proscribed by Section 8(b)(4)(B), the provisions of which apply not only to "employers" but to "persons." 4 Respondent, having admitted that National Airlines is a corporation, admits therefore that it is a "person" within the meaning of Section 2(1) of the Act. I so find. I therefore conclude, on Respondent's admissions, and upon the record as devel- oped in this case, that National Airlines is a "person" within Section 2(1) of the Act and is a person "engaged in commerce" entitled to the protection of Section 8(b)(4)(B) of the Act. Los Angeles Newspaper Guild Local 69 (San Francisco Examiner Div.), 185 NLRB 303, 305, fn. 7 (1970). See Local Union No. 25, of the International Brotherhood of Teamsters, Chauffeurs, Warehouse and Helpers of America et. al. [New York, New Haven & Hartford Railroad Co.], 350 U.S. 155 (1956); I.A.M. and Lufthansa German Airlines (Mariott In-Flight Service), 197 NLRB 232, 238 (1972). 3 For instance, Rio Airways, Inc., 208 NLRB 675 (1975). 4 Sec. 2 of the National Labor Relations Act. as amended, provides: (I) The term "person" includes one or more individuals, labor organizations, partnerships, associations, corporations, legal represen- tatives, trustees in bankruptcy, or receivers. The Board's statutory and "commerce" standards for jurisdiction are met by the above evidence and the conclusion that Servair, the primary employer, is a person engaged in commerce within the meaning of Section 2(1), (6), and (7) of the Act regardless whether the Board would exercise jurisdiction over National Airlines outside of the 8(b)(4) context. Local 14055, United Steel Workers of America, AFL-CIO (The Dow Chemical Company) 211 NLRB 649 (1974). III. THE UNION AS A LABOR ORGANIZATION At the hearing, contrary to the denial filed in its answer, Respondent admitted that, at all times material herein, it was and is a labor organization within the meaning of Section 2(5) of the Act. I so find. IV. THE UNFAIR LABOR PRACTICES Background In substance, the complaint alleges that beginning in or about January 1976, because of its dispute with Servair, the Union, in violation of Section 8(b)(4Xi) and (ii)(B), picketed, distributed handbills, and appealed to certain travel agents, all directed against National Airlines, for the purpose of coercing National Airlines to cease doing business with Servair with whom it had a contract whereby Servair supplied skycap services to National Airlines at JFK International Airport. The underlying facts are not in dispute. The Union does not deny that National Airlines has a passenger terminal building at JFK International Airport and also has offices, passenger facilities, and freight facilities at Newark International Airport in Newark, New Jersey, and at LaGuardia Airport in New York. The facts also show that National Airlines maintains an airplane hangar at 150th Street and North Boundary Road at JFK Airport and has its own various ticket sales offices throughout New York City. In addition, National does business with travel agencies in the City of New York of which two are Blue Sky Tours and Tripper Travel Service Limited. Prior to November 1, 1975, National Airlines had a service contract with Allied Aviation Service Co. (herein called Allied Aviation), which provided that Allied Avia- tion would supply National with skycap services at Kennedy Airport. The skycaps performing services at JFK supplied by Allied were represented by the Respondent. In or about the summer of 1975, National Allied decided to terminate their agreement and National then solicited competitive bids for a replacement contractor. The agree- ment between Allied and National provided, inter alia, that the parties could terminate the agreement if Allied submitted an application for increasing its rates for services under the contract beyond that which National would adopt or accept. Such an application for increase in rates led to the termination of the agreement. Thereafter, as a result of the competitive bids submitted to National, (2) The term "employer" includes any person acting as an agent of employer, directly or indirectly, but shall not include . . any person subject to the Railway Labor Act, as amended from time to time .... 395 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National awarded the service contract for skycaps at JFK to Servair to commence on or about November 1, 1975. Due to a labor dispute among other of National Airlines personnel, National was struck and shut down until on or about January 1, 1976, sometime after which Servair began performing under its contract with National.5 As above-noted, the skycaps employed by Allied at JFK were covered by a collective-bargaining agreement be- tween Allied and Respondent, whereas the skycaps employed by Servair and providing the same service commencing January 1976, are covered by a collective- bargaining agreement between the United Steel Workers of America and Servair. William F. Genoese, is Respondent's secretary-treasurer and chief operating officer. Mr. Edward Dougherty is Respondent's business representative. Mr. Henry Molle is Respondent's vice president. All have held such titles and office since 1969, and all are agents of Respondent. 6 Allied Aviation's contract with National, covering the performance of skycaps services at JFK, which would have expired in 1977, was thus terminated on October 31, 1975, by agreement of the parties. It also appears that Allied Aviation's collective-bargaining agreement with Respon- dent expired on December 31, 1975. Following this expiration of the collective-bargaining agreement between Allied Aviation and Respondent, on or about January 10, 1976, Edward Dougherty, the above- named business representative of Respondent, commenced seeking to have Servair skycaps at JFK execute member- ship application cards in Respondent union. This occurred shortly after Servair began to perform its skycap services with National Airlines at JFK on January 6, 1976. Around the same time, Respondent's William Genoese telephoned Servair, Inc.'s (the parent corporation) executive vice president, Carl Smitelli. Genoese told Smitelli that he wanted to meet with him concerning the "skycap situation" at JFK involving National Airlines. On Thursday, January 29, Smitelli and Genoese met at the International Hotel at JFK Airport. At that time, Genoese told Smitelli that he was concerned about Servair getting the contract with National and that the skycaps employed by Servair were not members of the Teamsters union. Genoese said that he would do everything possible to see to it that Servair lost the contract. Genoese said that he knew that Servair had a relationship with United Steel Workers Union and that Genoese wanted Smitelli to get the Steel Workers Union to surrender its rights and to terminate the collective-bargain- ing agreement between the Steel Workers and Servair. In addition, Genoese told Smitelli that if Servair did not agree to abrogate the collective-bargaining agreement with the Steel Workers Union, Respondent would picket Servair and National Airlines, "make life miserable" and see to it that Servair went out of business at Kennedy. Genoese also told Smitelli that he would not only picket Servair and National but also picket at Pan American Airways, BOAC and other terminals. Smitelli refused to meet Genoese's demands and Genoese told him that he would "picket the 5 Servair provides skycap services for National Airlines only at JFK International Airport. At LaGuardia's passenger terminal, skycap services are provided by Mohawk Maintenance Co.; and at Newark Airport, Allied Aviation continues to provide skycap services for National Airlines. 6 Genoese testified that Dougherty's and Molle's powers over organiza- ass" off of Servair and National Airlines and would do anything necessary to break up the relationship between Servair and National Airlines. Respondent Pickets National at JFK Airport The uncontradicted evidence shows that commencing January 23, 1976, and on various dates in February, March, and April 1976, and particularly on the weekends, with a total of no fewer than 12 separate occasions on separate days, Local 732 picketed the passenger terminal of National Airlines at Kennedy Airport. On each such occasion between January 23 and April 16, 1976, the pickets were accompanied by Vice President Molle, Business Agent Dougherty, or Secretary-Treasurer Ge- noese. On several of such occasions, Genoese and Molle were seen distributing the picket signs and leaflets to the pickets. The picketing was discussed by members of Local 732 from time to time at the Riviera Hotel at JFK Airport. The funds to pay for the rooms at the Riviera Hotel came from the Union.7 In addition to distributing the signs, Genoese, Dougherty, and Molle would also engage in patrolling with the pickets outside the passenger terminal of National Airlines at JFK. The other pickets included skycaps who were previously employed by Allied Air Service and shop stewards of shops represented by Local 732 which shops performed skycap services for Pan American Airways, British Airways, and other airlines serviced by Allied Aviation. I conclude, contrary to Genoese's denial, that the picketing was thus authorized by and engaged in by Respondent, its agents, and members and that Respondent is responsible for the signs, handbills, statements, and object of the picketing. Local 810, Steel, Metals, Alloys & Hardware Frabricators & Warehousemen, International Brotherhood of Teamsters Chauffeurs, Ware- house & Helpers of America (Scales Air Compressor Corp.), 200 NLRB 575, 584-585 (1972), and cases cited therein; Service Employees International Union, Local No. 50, AFL- CIO (Our Lady of Perpetual Help Nursing Home, Inc.), 208 NLRB 117 (1974). The evidence shows that Respondent's own identified officer paid for premises where picketing was discussed and planned, distributed the picket signs and leaflets, mailed the handbills to travel agents, actively patrolled with picket signs on the picket line, and never disavowed any of the above conduct. The picketing usually commenced at or about 7:45 a.m. and was concluded at or about 10 a.m. each day. On February 27 the New York Port Authority police were called because the pickets were blocking the entrance to the walkway leading into the National Airlines terminal entrance and were preventing the skycaps from performing their duties at curbside. In January and February, the picket signs, according to the unrefuted evidence, stated: "Fly Delta Airlines. National unsafe. Servair and National scab outfit. Servair does pay scab wages. We want our jobs back at National." The pickets also chanted the same things as appeared on tional activities and the picketing are derived from him as chief executive officer of the Union. 7 At one point in the testimony, Genoese, who was in charge of dispersing the funds, denied knowledge of who dispersed the funds. 396 LOCAL 732, TEAMSTERS the sign and also said "pass them by. It's not too late to go to Delta." The picketing, taking place in front of the National Airlines terminal passenger departure area also included the pickets telling incoming persons, including passengers, that the Servair skycaps were "tagging the baggage wrong and sending it to the wrong designation." By March 6, and on each weekend thereafter, the evidence shows that the picket signs and pickets in no way mentioned, nor were directed at, Servair, but were rather directed solely at National Airlines. The picket signs failed to include the name Servair and, in picketing conducted on March 6, 13, 19, 20, and 27 and April 3, 7, and 16, Respondent's signs related only to National Airlines and read: "Don't fly National Airlines." The evidence is uncontradicted that the pickets from time to time used a bullhorn and appealed to persons, including passengers to: "Don't fly National Airlines, unsafe airline, fly Delta, pass them by." According to the uncontradicted testimony of Paul Dunbar, a witness called by General Counsel, on Friday, March 19, 1976, between 8 a.m. and approximately 10 a.m., in addition to picketing with signs directed solely at National Airlines, Henry Molle also distributed leaflets to the 14 pickets. Both the signs and the leaflets said: "Don't fly National Airlines" (G.C. Exh. 4). The leaflets were then distributed by the pickets to passengers as they arrived at the building. The persons to whom the leaflets were handed were known to be passengers because they were using the National Airlines departure terminal and because they had luggage. The handbill (G.C. Exh. 4) distributed by the pickets reads, on one side "Don't Fly National Airlines" and invites the reader to read the other side. The other side of the handbill requests passengers to support the picketers by refusing to cross the "protest lines" or to "fly National Airlines" until "National Airlines ... revokes this misera- ble sell out and makes a decent and just settlement with the skycaps." The handbill, eight paragraphs in length, men- tions Servair: "an unscrupulous subcontractor." The history of the replacement of Allied Aviations by Servair is recounted in the handbill along with the alleged ensuing detriments suffered by the skycaps.8 The full text of the handbill (G.C. Exh. 4) is as follows: DON'T FLY NATIONAL AIRLINES National Airlines, which has had the worst labor record in the airline industry for many years, has hit a new low in exploiting loyal workers-namely Skycaps-through an unscrupulous subcontractor, Servair. The facts are simple. National Airlines Skycaps at JFK Airport for years were employed by a subcontractor named Allied Maintenance. They earned $1.95 an hour. plus tips, under a Teamster contract that also provided an excellent health and welfare plan and an outstanding pension plan. But during one of National's strikes-the one by flight attendants that began in 1975 and lasted into 1976-National made a sellout deal with Servair, under which Servair took over in place of Allied Maintenance. The Skycaps' pay was cut to $1.35 an hour, and the health and welfare plan was watered down so badly that if a Skycap gets sick he must now go on welfare. As if this wasn't bad enough, many older Skycaps some with up to 20 years of airline industry service were laid off. They lost their Picketing and handbilling at places other than JFK Airport (1) On the morning of March 18, 1976, the National Airlines station agent at LaGuardia Airport observed Business Agent Edward Dougherty walking through the National Airlines ticket lobby at LaGuardia Airport about 9 a.m. He was handing out handbills to passersby and he wore a sandwich sign saying: "Don't Fly National Airlines." In addition, there was also a person wearing a sandwich sign saying: "Don't Fly National Airlines" about 6 feet from the door outside of the National Airlines ticket lobby at LaGuardia Airport. They remained in the area until about I 11 a.m. Dougherty made several passes past the National's ticket counter. Dougherty rode the escalators and handed out leaflets. He also handed out leaflets at the ticket counter to passengers checking in and placed a leaflet on the ticket counter. The other picket remained outside the door and patroled in front of the door. 9 No Servair personnel were ever stationed at LaGuardia Airport. There was no evidence that any Servair employees performed services at LaGuardia Airport at any time. As above-noted, skycaps at LaGuardia who perform services for National Airlines were and are employed by Mohawk Maintenance Company. (2) About 2 or 3 miles from the National Airlines passenger terminal, is the National Airlines cargo facility located in cargo building number 86 at JFK. About 20 to 30 National Airlines employees work in the cargo building handling cargo. No Servair employees work at this facility. The testimony is uncontradicted that on March 20 and April 3, 10, and 16, the aforesaid cargo facilities were picketed during daylight hours by two pickets. Pickets came into the cargo building parking lot and put on sandwich picket signs which said: "Don't Fly National." They also picketed on the sidewalk near the parking lot. The picketing lasted from about 9:30 a.m. to noon on each occasion. They also handed out the above-described leaflets to vehicles coming into the cargo building area on the roadway leading thereto. The trucks were engaged in cargo handling between airlines, and were owned or operated by private trucking concerns of freight brokers. On one occasion, the pickets gave a leaflet to the driver of a truck owned or operated by Emery Airfreight. Other pensions and health and welfare benefits and became a burden on the community and the taxpayer. Even those who stayed on the job lost their years of equity in a good pension plan. Their pay is so low that they don't even build up enough Social Security coverage to have a decent existence on retirement or to protect their families. Younger men willing to work for substandard pay were hired off the streets to replace highly skilled professional Skycaps. Worker was pitted against worker in a vicious scheme to squeeze every possible penny out of decent, hard-working employees. We will be holding protest marches at the National terminal at JFK Airport. Many people are already supporting us and refusing to cross our protest lines or to fly National Airlines under any circumstances. We ask you to join them. We ask you not to fly National Airlines until it revokes this miserable sellout and makes a decent and just settlement with the Skycaps. You and every other potential airline passenger have the power to right this wrong-by refusing to patronize National Airlines. DON'T FLY NATIONAL AIRLINES. 9 This person accompanying Business Agent Dougherty walked back and forth with the "Don't Fly National" sign. 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD handbills were given to trucks operated by employees of TWA Airlines and employees of Interline Trucking Co. which distributes cargo among the various airlines. The trucks involved were coming directly to the National Airlines loading and unloading platform. None of the picket signs referred to Servair. In addition, the evidence is uncontradicted that, in this period, Respondent picketed National Airlines ticket offices in New York City where no Servair employees are employed. Respondent picketed the National Airline office adjacent to Rockefeller Center on Fifth Avenue and the ticket office adjacent to Park Avenue on East 42d Street. At about noontime, for about 15 minutes, three of Respondent's pickets wearing sandwich signs stating "Don't Fly National Airlines" picketed these promises and distributed leaflets above referred to (G.C. Exh. 4) which urged persons not to fly National Airlines. The pickets at the ticket offices distributed the leaflets to all passersby who would accept them. On April 5 and 7, Respondent Business Agent Edward Dougherty, in the afternoon on those days, distributed leaflets to passers-by (G.C. Exh. 4) inside terminal B at Newark Airport. No Servair employees are employed at Newark Airport. The skycaps used by National at Newark Airport are employed by Allied Aviation, Inc. Finally, there was handbilling but no picketing at an entrance to the JFK Airport at North Boundary Road and 150th Street. The Mailing to Travel Agents In March 1976, Respondent sent to travel agents in the New York area a "fact sheet" with a covering letter dated March 22, 1976, signed by Respondent's secretary-treasur- er, William Genoese (G.C. Exh. 5). The mailing to the travel agents consisted of: a two-page covering letter, the leaflet incorporated in General Counsel's Exhibit 4, and the seven-page fact sheet and explanation of the document. The covering letter, dated March 22, 1976, signed, as above-noted, by William F. Genoese, is addressed to: Dear travel agent: We are sending you the enclosed fact sheet because we need your help in fighting for the rights of professional Skycaps at Kennedy International Airport. National Airlines, through a subcontract is trying to beat down and exploit a group of Skycaps who have given years of service to the airline industry. All the facts are enclosed. It will take you only a minute or two to read our factual run down and see what the situation is. What we are asking you to do is simply to avoid dealing with National Airlines until the dispute is settled ... .10 [Emphasis supplied.] 'o The covering letter also states: "From time to time we shall hold protest marches in front of the National terminal at JFK." In view of the statement in this letter signed by Respondent's secretary-treasurer, this The handbill states, in substance, that National Airlines refused to hire employees who had been employed by Allied Aviation and did not want a strong union represent- ing skycaps. The handbill continues: [W]e will be holding protest marches at the National Airlines terminal at JFK Airport and we call on everyone not to cross the protest lines and NOT TO FLY NATIONAL UNDER ANY CIRCUMSTANCES UNTIL THIS SELLOUT IS ENDED. As National Airlines points out, there is no evidence that National was involved in the hiring of the skycaps or, indeed, in the labor policy of Servair. In addition, one of General Counsel's witnesses, currently a Servair employee, had previously worked for Allied and was a member of Respondent. As the General Counsel suggests, the same fact sheet also contains the following statement: [W]e are acting as a responsible union in condemning the vicious tactics of National Airlines, and we call on every other organization at JFK Airport and in the South Jamaica community to join us in crusade to end the sell out and run Servair out of the airport.... The General Counsel calls specific attention (G.C. brief) to the appeal to "every other organization at JFK Airport" by underlining that portion of the fact sheet above quoted. Analysis and Conclusions: Picketing and Handbilling I. Respondent's responsibility I have already found above that Respondent is responsi- ble for the picketing, handbilling, and the letters to the travel agents. Respondent paid for the hotel rooms in which meetings were held discussing the picketing; Re- spondent's officers and agents distributed the picket signs and handbills to Local 732 shop stewards and other members who were identified as making up the picket lines in and about JFK Airport; and Respondent's officers were identified as distributing the handbills at Newark Airport. In addition Respondent's officers and agents, including Genoese, Molle, and Dougherty, were prominent on the picket lines and in the distribution of handbills at National Airlines. The handbills distributed by Respondent speak of its "protest" lines at National's JFK terminal. There is the direct testimony, uncontroverted on this record that Genoese, Respondent's chief officer, threatened to "picket the ass" off Servair and National and put them out of business at Kennedy. Under these circumstances, as noted earlier in this Decision, it would be difficult for me to conclude otherwise than that Respondent authorized and ratified the picketing at National, the handbilling and the distribution of letters to travel agents requesting their participation in the total boycott of National Airlines. constitutes further evidence that the picketing and handbilling at JFK at the National terminal was authorized by Respondent. 398 LOCAL 732, TEAMSTERS 2. The object of picketing and handbilling The picketing, including statements by the pickets, and the handbilling were carried out almost entirely at places far removed from the Servair office in Building 150 at JFK Airport. The picketing, instead, was conducted solely at National's premises at JFK Airport and at National's premises in LaGuardia Airport, Newark Airport, and National's ticket agencies in New York City. The record is clear that, except for the passenger terminal at JFK, there were no Sevair facilities much less employees at such National sites. The picket signs, the statements of the pickets, and the handbills except for the early picketing in January, were totally directed at National Airlines. How- ever, even the earlier picketing and handbilling, which were directed primarily at National Airlines, but also at Servair, were conducted at National Airline premises exclusively. The handbills were distributed, among others, to employ- ees of trucking lines making deliveries at National's cargo i" facilities; passengers about to embark on a National Airlines flight; and travel agents who do bookings for passengers at National Airlines. The picket signs, the oral appeals of the pickets, and, indeed, the handbills themselves, all request that the persons receiving the handbills do not cross the picket lines and do not fly National Airlines. The complaint alleges that by such conduct, Respondent violated Section 8(b)(4)(i) and (ii)(B) of the Act.' 2 Insofar as here relevant, Section 8(b)(4)(i) and (iiXB) prohibits labor organizations from engaging in strikes and picketing, among other forms of conduct, directed against employees of secondary or neutral employers, and from threatening, restraining, or coercing such secondary employers where, in either case, an object of said conduct is to force or require the secondary or neutral employer to cease doing business with the primary employer or person with whom u Picketing and handbilling also occurred at National cargo facilities without reference to incoming trucks. 12 Sec. 8(bX4Xi) and (iiXB) of the Act provides as follows: (b) It shall be an unfair labor practice for a labor organization or its agents (4Xi) to engage in, or to induce or encourage any individual employed by any 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, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is .. . (B) forcing or requiring any person to cease using, selling. handling, transporting, or otherwise dealing in the products of any other producer, 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 the Union has a dispute. This section is generally known as the secondary boycott provision, and, as the Board and the courts have repeatedly pointed out, it is aimed at "shielding unoffending employers and others from pressures and controversies not their own." N.LR.B. v. Denver Building and Construction Trades Council, et. al. [Gould & Preisner], 341 U.S. 675, 692 (1957). Even peaceful picketing for an object of enmeshing neutral employers who have no direct relationship with the quarrel between the primary employ- er and the labor organization, satisfies the statutory requirement of "forcing or requiring" the accomplishment of that objective. International Brotherhood of Electrical Workers, Local S0 , et al. [Samuel Langer] v. N. L R. B., 341 U.S. 694 (1951). As stated by Learned Hand, Chief Judge of the Court of Appeals, Second Circuit: The gravamen of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.'3 Viewed in the light of these principles, the record clearly discloses that Respondent union violated Section 8(b)(4)i) and (ii)B) of the Act. Of course, the most persuasive evidence of the object of the picketing at the secondary sites is William Genoese's threat to Carl Smitelli, Servair's officer, at the International Motel at JFK that he would "picket the ass off" Servair and National Airlines in order to cause Servair to lose the contract with National Airlines. Genoese told Smitelli that he would "do everything possible" toward that end; and he told Smitelli that if Servair did not agree to get the United Steel Workers Union to surrender its collective-bargaining agreement with Servair, Genoese would picket National and make life very miserable." 14 The picket signs ("Don't Fly Nation- al"), the pickets statements to passengers and others (Don't unlawful, where not otherwise lawful, any primary strike or primary picket .... Sec. 8(bX4) contains further provisos, the last of which is as follows: Provided further, That for the purposes of this paragraph (4) only, nothing contained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of inducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, deliver, or transport any goods, or not to perform any services, at the establishment of the employer engaged in such distribution .... 13 International Brotherhood of Electrical Works, Local 501, et al [Samuel Langer] v. N.LR.B., 181 F.2d 34, 37 (C.A. 2, 1950). 14 In view of this direct evidence of Respondent's express object to enmesh and embroil National Airlines in the Union's dispute with Servair, and even though the Servair skycaps were present at the National JFK passenger terminal, it is unnecessary to analyze the question of whether picketing limited to the presence of the primary employer at a secondary situs was conducted in such a way as to minimize the impact of such picketing on neutral employers and the employees of neutral employers and the public. Cf. Local 662, Radio and Television Engineers, affiliated with International Brotherhood of Electrical Workers, AFL-CIO (Middle South Broadcasting Co.), 133 NLRB 1698 (1961); In the Matter of Sailors' Union of the Pacific, AFL (Moore Drydock Company), 92 NLRB 547 (1950). Picketing at all other National sites occurred in the total absence of Servair employees (Continued) 399 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fly National), the handbills distributed to passengers, the general public, and to employees of trucking firms making deliveries to National all demonstrate that the object of the picketing was to cause National to cease doing business with Servair by picketing National and handbilling supplier's employees and the public to engage in a general boycott of National Airlines. The fact that the preliminary picketing in January also mentioned Servair as an object of the picketing is not material in view of the direct evidence of what the object of the picketing was: to embroil National Airlines in Respondent's dispute with Servair. It is well settled that the words "induce or encourage" are broad enough to include in them every form of influence or persuasion. International Brotherhood of Electrical Workers, Local 501 v. N.L.R.B., supra, 341 at 701-702. It is likewise well settled that if any object of picketing is to subject the secondary employer to forbidden pressure, then the picketing is illegal, Superior Derrick Corp. v. N.L.R.B., 273 at 896; and no proof of success or effectiveness of the picketing in creating a work stoppage is necessary in order to establish a violation. N.L.R.B. v. Associated Musicians, Local 802, AFL [Gotham Broadcast- ing Corp.], 226 F.2d 900 (C.A. 2, 1955), cert. denied 351 U.S. 962. In short, since the picketing was an inducement to the employees of National, and of other employees doing business at the National sites, to cease performing services for National and their employers and to engage in a strike against National and their respective employers, the 8(b)(4)(i)(B) violation is made out by the picketing by Respondent on National's premises. The same picketing found violative of Section 8(b)(4)(i)(B) must also be found violative of Section 8(b)(4)(ii)(B) because the same picket- ing constitutes unlawful "restraint or coercion of the secondary employer (National) under Section (ii)." Interna- tional Hod Carriers, Building and Common Labors' Union of America, Local No. 1140, AFL-CIO (Gilmore Construction Company, 127 NLRB 541 (1960), enfd. 285 F.2d 397 (C.A. 8, 1960); Local Union No. 767, Laborers International Union of North America, AFL-CIO (Florida Planned Communities, Inc.), 209 NLRB 586, 594 (1974). The ultimate aim of the picketing here, to pressure National into causing Servair to replace its employees with employees represented by Respondent, constitutes a proscribed secondary boycott. Refrigeration Contractors, Inc., v. Local Union No. 211, Plumbers, 501 F.2d 668 (C.A. 5, 1974); N.L.R.B. v. Electrical Workers, Local 3 [Wickham Construction Co.] 542 F.2d 860 (C.A. 2, 1976). Similarly, picketing to cause a total consumer boycott violates Section 8(bX4)i) and (ii)(B) since no identifiable struck service was attacked but rather all of National's business. N.LR.B. v. Fruit and Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations Committee, Inc.], 377 U.S. 58 (1964). Indeed, Genoese's threat to picket all the airlines was such a wide-ranging threat of secondary action without regard to the other airlines' connection with Servair, that all such activity violated 8(b)(4) and (iiXB). Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO (Huntington Town House, Inc.), 225 or goods or presence. Picketing at National's cargo facilities was obviously designed not for passengers nor for Servair employees but for National's cargo employees. NLRB 559 (1976). However, the threat to Smitelli, while evidence of an unlawful secondary object, is not unlawful since it was addressed to the primary employer only. 3. Handbilling in conjunction with or in the area of the picketing As above-noted the handbills are a single-page document with writing on both sides. On one side in large letters measuring not less than 1-1/2 inches in length and 1 inch in width, is, in thick black configuration, "Don't Fly National Airlines." In addition, in letters in words appearing at the bottom of the page which words are about one-half inch in size are: "Please read other side." The reverse side, with large black lettering at top and bottom of about 1 inch in size reading "Don't Fly National Airlines" contains the alleged history of the dispute in which National Airlines appears prominently as the object of Respondent's conduct and request for boycott. Servair is mentioned in the handbill. These handbills were distributed at the picket sites at National's LaGuardia terminal and at National's New York offices, in conjunction with persons wearing picket signs at Newark Airport and at LaGuardia Airport. The handbills were also part of the six-page packet to the travel agents. They were distributed, in addition, to all who would take them including passengers, truckdrivers delivering to the cargo facilities of National at JFK and to the general public in the area of Park Avenue, New York and Fifth Avenue, New York, which are the National Airlines ticket agencies. Handbilling of this nature, conducted at the same time of or in the same area as the picketing is the equivalent of the picketing itself and is unprotected by the Act. It violates Section 8(bX4)(i) and (iiXB). In Plumbers, Steamfitters & Pipefitters Local No. 155 (The Kroger Co.), 209 NLRB 341 (1974), the Board accepted the court's reversal, The Kroger Company v. N.L.R.B., 477 F.2d 1104, 1108 (1973), and found that: the distribution of handbills, containing substan- tially the same message as the picket placards and conducted simultaneously and in generally the same area as the picketing, was tantamount to picketing and was unprotected by the Act .... In Lumber and Sawmill Workers Local Union No. 2797 (Stoltze Land and Lumber Company), 156 NLRB 388, the Board found that the distribution of handbills in circumstanc- es strikingly similar to those involved here amounted to picketing. Similarly, in Lawrence Typographical Union No. 570 a/w International Typographical Union AFL- CIO (Kansas Color Press, Inc.), 169 NLRB 279, enfd. 402 F.2d 452 (C.A. 10, 1968), the Board found that handbilling in circumstances where it constituted a part of the union's campaign, which included picketing, also constituted picketing. See also Nashville Building and Construction Trades Council (Castner-Knott Dry Goods Store), 188 NLRB 470 (197). 400 LOCAL 732, TEAMSTERS Thus, the handbilling in conjunction with the picketing violates Section 8(bX4Xi) and (iiX)(B). As above-noted, nothing in N.LR.B. v. Fruits and Vegetable Packers & Warehousemen, Local 760 [Tree Fruits Labor Relations Committee, Inc.], supra, or in N.LR.B. v. Servette, Inc., 377 U.S. 46 (1964), is to the contrary. For in the instant case, the picketing, the picket signs, the direct evidence (includ- ing Genoese's conversation with Smitelli), and the hand- bills, all direct attention to the fact that the Union's animus and conduct is directed principally against National Airlines, the secondary employer; and since the picketing and handbilling were all of a piece and occurred at or about the same time and in the same area at JFK, LaGuardia and National's New York City ticket offices the handbilling takes on the quality of picketing and is conduct outside the ambit of the publicity proviso to Section 8(b)(4)(B) and may be proscribed under Section 8(b)(4)(i) and (ii)(B) of the Act. Cf. Teamsters Local 537 (Lohman Sales Co.), 132 NLRB 901 (1961). Thus, as the court noted in Honolulu Typographical Union No. 37 v. N.L.R.B. 401 F.2d 952, 957, fn. II (C.A.D.C., 1968), enfd. 167 NLRB 1030 (1967), the second proviso to Section 8(b)(4) makes it lawful to seek the object of a total consumer boycott of the secondary seller "so long as it is done by 'publicity other than picketing.' " Here, as noted, the Board with court approval, has concluded that such handbilling partakes of the picketing itself and is therefore not to be protected under the publicity proviso in Section 8(b)(4). I conclude that the handbilling here was part of the picketing in terms of object time and place of distribution, and is not protected by the Act. 4. The inducement of the travel agents Although Respondent's chief officer, William Genoese, recalled signing the transmittal letter (covering G.C. Exh. 5), a six-page document) sent by Respondent to travel agents, he could not recall when the letter was sent out or how many were sent out; nor whether the document was dispatched at or about the time he signed it.'5 On the other hand, the president of Tripper Travel Service Limited testified that he received the six-page document (G.C. 5) in March 1976. In addition, another travel agent, Blue Sky Tours, New York, New York, also received General Counsel's Exhibit 5 in March 1976, allegedly the busy travel season. The statements in the document, which has the handbill attached, received by these travel agents contain the following: 1. In the six-page fact sheet,' 6 under the heading "Servair's Hiring Policy," there appears the following sentence: "Servair refused to hire skycaps who were 15 Genoese, at the hearing, refused to positively identify a signature on a 10-page handwritten statement (G.C. Exh. 6) taken from him on March 15, 1976. by a Board agent during the investigative phase of the case. He also refused to answer the question whether he remembered signing the statement. The most Genoese would say is that it looked like his signature. In addition. contrary to his statement, Genoese attempted to assert that there were picket signs other than those stating "Don't Fly National" and that picketing occurred at Servair premises. He alleged knowledge of these inaccuracies but never communicated them to the Board. I do not credit Genoese in this testimony. Furthermore. Servair's witness denied that it was ever picketed. Genoese's credibility and veracity at the hearing were, in my members of Local 732 or who had worked for Allied and had built up equities in wages and fringe benefits." In fact, a witness called by General Counsel, Noel Campbell, a skycap employed by Servair since January 7, 1976, testified that he was previously employed by Allied Aviation Inc., as a skycap and that he was formerly a member of Local 732. 2. On page 4 of the document mailed to travel agents, under the heading "NLRB charges," the following ap- pears: When Servair came into the picture at National Airlines, 20 Skycaps who had worked for National when Allied Maintenance was National Airlines sub- contractor went to Servair to apply for jobs. Also another 150 professional Skycaps went to Servair for a job. Servair refused to give some of them application forms. Others were hired and given uniforms and photo- graphed, but later-when Servair learned that they were union members-Servair refused to hire them. As above-noted, Campbell was formerly a member of Local 732 and was hired by Servair. 3. The same document sent to travel agents also notes that its charges filed with the National Labor Relations Board include the allegation that Servair "has refused to hire applicants from employment as skycaps at National Airlines terminal at JFK because said applicants were members of or affiliated with Local 732 .... " Campbell is a skycap at the passenger terminal at JFK Airport. 4. On page 2 there appears this sentence: "The reason National and Servair were determined to keep out the Teamsters was that they wanted to pay substandard wages and cut fringe benefits to the bone by hiring new people- an old trick of employers without scruples." Noel Camp- bell testified that he was previously employed by Allied Maintenance. Therefore he could not be considered as "new people." Respondent failed to controvert any of this evidence and I credit it. In addition, Respondent failed to show that the hiring of Campbell was merely a token or otherwise not bonafide. Analysis and Conclusions: Travel Agents The proviso to Section 8(bX4) permits pure handbilling untainted by picketing, which urges the public to engage in a total consumer boycott of an offending secondary employer, N.LR.B. v. Servette, Inc., supra, Lohman Sales Co., supra,' Honolulu Typographical Union No. 37 v. N.LR.B., supra. The limitations imposed by the proviso judgment, generally undermined by his repeated attempts to avoid direct answers to questions, his flippant testimony and the contradictions which appear in his testimony when compared to the pretrial statement (which was admitted in evidence, in view of his high station in Respondent, not only for impeachment but for admissions against interest appearing therein). Except as noted in this footnote, the facts in this case were adduced independent of the statement. '6 The fact sheet is devoted to the subject: "How National Airlines Is Beating Down Skycaps at JFK Airport and Plotting [sic) Black Worker Against Black Worker." 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD include that the handbills truthfully advise the public and do not have proscribed effects. N.LR.B. v. Fruit and Vegetable Packers Local 760 [Tree Fruits], supra, Local Union No. 54, Sheet Metal Workers International Associa- tion, AFL-CIO (Sakowitz, Inc.), 174 NLRB 362 (1969), which are the cutting off of deliveries or inducing a secondary employer's employees to cease their work. There is no evidence here that the Union's communica- tions, including handbills, delivered to the two travel agencies had any such proscribed effects. It will be assumed that the travel agencies stand in the same shoes as the consuming "public" (which was also handbilled outside National's New York City mid-town offices) since the travel agencies, as suppliers of customers, are customer conduits to National. It will be further assumed that for purposes of the proviso, Servair produces a "product" distributed by National. Honolulu Typographical Union No. 37 v. N.L.R.B., supra at 956, fn. 3, citing N.LR.B. v. Servette, Inc., supra, Great Western Broadcasting Corpora- tion, d/b/a/ KXTV v. N.L.R.B., 356 F.2d 434 (C.A. 9, 1966); Lohman Sales Co., supra; Electrical Workers Local 73 etc. (Northwestern Construction of Washington, Inc.), 134 NLRB 498 (1961). What remains is the question whether the Respondent's handbills "truthfully" advised the travel agents. They do not, on two grounds. In the first place, contrary to the proviso, they indicate that the primary dispute-or at least a joint primary dispute -is with National. In light of the conclusion below, that National is not a joint employer of the skycaps, Respondent's handbills are misleading to the extent that they imply that the skycaps are the employees of National. The handbills, of course, do not seek to limit the requested boycott to situations where, as at JFK, National uses skycaps with whose employer (Servair) Respondent has a dispute. Rather, a total boycott of National Airlines by the travel agents is requested by Respondent. Secondly, the handbills manifest individual errors of fact, focusing particularly on Servair's-and National's-al- leged refusal to hire former employees of Allied Mainte- nance or members of Respondent. The record shows the direct contrary. I therefore conclude that Respondent's handbills and other materials directed to the travel agents do not truthfully advise the public regarding (I) who it has the dispute with, and (2) the refusal of National to permit Servair to hire former employees of Allied Aviation or members of Respondent. Thus, the handbills and mailings to the travel agents are not protected by the proviso. Nothing in International Union of Operating Engineers, Local 139, AFL-CIO; Teamsters (Oak Construction, Inc.), 226 NLRB 759 (1976), a recent handbilling case, appears to the contrary. I regard these misstatements as substantial, in terms of both the nature of the misstatements and their economic consequences, the effects of which were to put unlawful pressure on National. See Honolulu Typographical Union No. 37 v. N.L.R.B., supra, at 958, fn. 13, distinguishing, inter alia, N.L.R.B. v. Servette, Inc., supra, where minor 17 Respondent does not contend that National Airlines owns or controls stock in Servair or exercises corporate control in any indirect fashion. untrue statements in handbills were protected. Whether this conclusion construing the proviso creates serious first amendment problems is a matter for the Board and courts. Respondent's Defense: Joint Employer Respondent's principal defense is that National Airlines so dominates and controls the skycaps 7 hired by Servair that it must be considered the "co-employer" or "joint employer" of the skycaps and thus is not a neutral secondary employer entitled to the protection of Section 8(bX4). Respondent relies principally on the 3-year agreement terminating October 31, 1978, between National and Servair (Resp. Exh. 2) wherein Servair agreed, inter alia, to: . . . remove upon request from National any of its employees who, in the opinion of National are guilty of improper conduct or are not qualified to perform the work assigned. [Article I; Services] The agreement also provides that Servair agrees to "consult regularly with National's local management regarding the assignment of skycaps personnel." The agreement provides that Servair will provide a "manager" for the skycaps and all "necessary personnel (and equipment)" who will "wear uniforms and identifica- tion badges ... subject to the approval of National ... ." The agreement provides that Servair shall perform its services as an "independent contractor" and the skycaps "shall be employees of [Servair] not National." All licenses, fees and permits are the responsibility of Servair which also agreed to indemnify and hold National harmless for liability incurred by National as a result of Servair's operations. The evidence shows that National has never exercised the contractual right of removing a Servair skycap. Neutrality of employers under Section 8(b)(4) is not a technical matter, but a matter of "common sense" evaluation. N.LR.B. v. Local 810, IBT [Sid Harvey, Inc.], 460 F.2d 1 (C.A. 2, 1972), cert. denied 409 U.S. 1041 (1972). The Board rule, recently restated in Cabot Corporation, et al., 223 NLRB 1388 (1976), is that the question of "joint employer" status must be decided upon all the facts; but the determining factor in an owner-contractor situation is whether the owner: . . . exercises, or has the right to exercise, sufficient control over the labor relations policies of the contrac- tor or over the wages, hours, and working conditions of the contractor's employees from which it may be reasonably inferred that the owner is in fact an employer of the employees. In Cabot, as in the instant case, the owner had the contractual right to require the complete removal of an employee from the job; but, as here, had no right over the hiring of the Servair skycaps or the complete removal of an offending skycap from Servair's payroll. The Board found 402 LOCAL 732, TEAMSTERS no joint employer status in Cabot notwithstanding that (a) there, unlike the instant case, the owner made a daily "head count" of the contractor's employees in the owner's plant and (b) monitored and supervised each such employee's work performance. I also note that the Board, in Cabot (fn. 7) emphasized the importance it attaches to a contractual declaration, as in the instant case, that the contractor is an independent contractor. In view of Cabot, I view National's right to pass on the Servair skycaps' uniforms and its insistence that Servair "consult regularly" with National on the assignment of skycaps a reasonable, mutual accomodation to satisfactory execution of the contract rather than control over skycap performance. In view of the absence of evidence to show National's control over hiring, firing, wages, hours, or the means of performance of the work, I conclude that National is not the joint employer of the Servair skycaps. Thus National is not removed from the protection of Section 8(b)4)(i) and (ii)(B). To hold otherwise would be to translate the whole complex of business relationships between National and Servair, embodied in their contract and actual working relationships, into a surrender of neutrality. The Board does not normally predicate loss of neutral status even on economic dependency-a factor not present here-absent common ownership or managerial control. Local 14055, United Steelworkers of America, AFL-CIO (The Dow Chemical Company), 211 NLRB 649, 651 (1974) enforce- ment denied on other grounds 524 F.2d 853 (C.A.D.C., 1975); cert. granted, order vacated, and case remanded to the Board 429 U.S. 807 (1976). V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section IV, above, occurring in connection with the operations of Servair, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW i. Servair Maintenance, Inc., National Airlines, Inc., TWA Airlines, Inc., and Interline Trucking Co., and each of them, is a person engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(1), (6), (7) and 8(bX4) of the Act. 2. Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. In the period January-April 1976, Respondent, Local 732 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by picketing, verbal appeals, and handbilling, induced indivi- duals employed by National Airlines, Emery Airfreight Co., TWA Airlines and Interline Trucking Co., to refuse to handle or work on materials and to refuse to perform services for their employees and by the above conduct and by untruthful written communications to travel agents coerced National Airlines with an object of forcing or requiring National Airlines to cease doing business with Servair, thereby violating Section 8(bX4Xi) and (iiXB) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 403