Teamsters Local 710 (Santa Fe Trail Transportation)

TEAMSTERS LOCAL 710 (SANTA FE TRAIL TRANSPORTATION) Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House and Allied Products Driv- ers and Helpers, Office Workers and Miscella- neous Employees, Local Union No. 710, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (The Santa Fe Trail Trans- portation Company) and Jack P. Cerone, Attor- ney. Cases 13-CP-500 and 13-CP-502 30 April 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 30 July 1985 Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exception and a supporting brief. The General Counsel filed cross-exceptions and supporting brief and a brief in answer to Respond- ent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, 1 and 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The General Counsel has excepted to various factual errors in the judge's decision We note the following inadvertent errors in sec III,A,I, of his decision The judge stated that Santa Fe is a common carrier of general commodities in the 48 contiguous States, a finding not supported by the record, the judge stated that some BNT employees remained cov- ered by their own collective-bargaining agreements, whereas the record shows that when Santa Fe took over the BNT terminals those BNT em- ployees who were not laid off were subject to either a Santa Fe contract or a BNT contract depending on whether they were hired to work for Santa Fe or continued to work as BNT employees at BNT facilities, at In 8, the judge stated that Santa Fe has an intermodal operation with several railroads performing hostlmg work at rail yards, whereas the record shows that Santa Fe has an intermodal operation at its Chicago location from which it ships freight using various railroads ; the judge, in one instance, referred to the Respondent's president , Kelahan, as "Calla- han", and with respect to the mid-November 1984 meeting, we note that the Respondent's secretary-treasurer, Joyce, threatened that the Union would enforce its BNT contract through economic action In sec III,B, of his decision, the judge inadvertently stated that certain witnesses testi- fied "at," instead of concerning, the December 1984 meetings, and he re- ferred to Dominick Cartage as "Dominic " Finally, we amend the judge's Conclusion of Law 3(c) to refer to Leonard Lewensohn rather than Perri as having been threatened by the Respondent's business representative, DeWan, on 6 December 1984 We find that these inadvertent errors are insufficient to affect the result herein 2 In adopting the judge 's conclusions that the General Counsel has proved that the Respondent violated Sec 8(bX7)(A) and (C) of the Act, we find it unnecessary to rely on his analysis to the extent that it involves "balancing the competing interests here " (See the last paragraph of sec III,C, of the judge's decision ) 717 conclusions2 and to adopt the recommended Order.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Highway Drivers, Dockman, Spotters, Rampmen, Meat Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Em- ployees, Local Union No. 710, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Chi- cago, Illinois, its officers, agents, and representa- tives shall take the action set forth in the Order. 8 The General Counsel excepts to the judge's recommended Order to the extent that it does not include a "visitonal clause" authorizing the Board, for compliance purposes , to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request Brian Steinbach, Esq., for the General Counsel. Margo R. Newman, Esq., and with her on brief, Edwin H. Benn, Esq. (Asher, Pavalon, Gittler, and Greenfield), of Chicago, Illinois, for the Respondent. Jack P. Cerone, Esq. (Erbacci, Syracuse, & Cerone), of Chicago, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case was tried before me in Chicago, Illinois, on 25-26 March 1985, pursuant to the 20 December 1984 com- plaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 13 of the Board in Case 13-CP-500, the 14 January 1985 complaint issued in Case 13-CP-502, and the Regional Director's 15 January 1985 order consoli- dating the two cases. The complaints are based on charges filed in the cases on, respectively, 7 December 1984 and 4 January 1985 by Jack P. Cerone, an attorney, against Highway Drivers, Dockmen, Spotters, Ramp- men, Meat Packing House and Allied Products Drivers and Helpers, Office Workers and Miscellaneous Employ- ees, Local Union No. 710, affiliated with the Internation- al Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Respondent or Teamsters 710).1 In the consolidated complaints (complaint) the General Counsel alleges that Respondent violated Section 8(b)(7)(A) of the Act on 27 November and 3 December by threatening The Santa Fe Trail Transportation Com- pany (Santa Fe) with picketing at its Chicago facility, and on 6 December by threatening Santa Fe with picket- 1 All dates are for 1984 unless otherwise indicated Cerone is the attor- ney for The Santa Fe Trail Transportation Company 279 NLRB No. 96 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing at all cartage companies with whom it does business, and Section 8(b)(7)(A) and (C) of the Act on 2 Decem- ber and thereafter by picketing at Santa Fe's Chicago fa- cility, all for the alleged object of forcing Santa Fe to recognize or bargain with Teamsters 710, and to force certain of Santa Fe's employees to accept or select Re- spondent as their bargaining representative. The complaint further alleges that Respondent en- gaged in this activity even though Santa Fe, under the Act, has recognized another labor organization, The Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees (BRAG) and when no question concerning representa- tion (QCR) of such employees could be raised under Section 9(c) of the Act. Finally, the General Counsel al- leges that Respondent engaged in the picketing for over 30 days. By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the General Counsel2 and Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION The Santa Fe, a corporation headquartered in Kansas City, Kansas, transports general commodities throughout the 48 contiguous States as a common carrier by motor vehicle. During calendar year 1984 Santa Fe derived gross revenue exceeding $50,000 for transporting freight from Illinois directly to points outside Illinois. Respondent admits, and I find, that Santa Fe is an em- ployer within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that both it and BRAC are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prestrike Background 1. In general Leonard Lewensohn and Avery Eliscu own SFTT, Inc. (SFTT). Lewensohn testified that SFTT is a holding company which owns several motor carriers including BN Transport (BNT) and Santa Fe.3 SFTT is headquar- tered in Chicago, Illinois, and Lewensohn is president of SFTT. SFTT was formed in June 1984 for the purpose of purchasing Santa Fe from Santa Fe Industries (SFI). The 2 The unopposed motion, dated 31 May 1985, to correct the transcript submitted by the General Counsel (CGC) is granted To that list of cor- rections should be added the substitution of "rely on" for "allow for" shown at p 60, L 18 CGC also submitted a proposed order and notice 3 References to the two-volume transcript are by volume and page purchase of Santa Fe was accomplished in early July. Lewensohn also is president of Santa Fe. In mid-August SFTT began negotiations to purchase BNT from Burlington Northern Industries (BNI), and on 1 September SFTT completed that purchase.' As he is with SFTT and Santa Fe, Lewensohn is president of BNT. Like Santa Fe, BNT is a common carrier of gener- al commodities in the 48 contiguous States. Both Santa Fe and BNT had terminals in Chicago (as well as elsewhere), and the employees were covered by collective-bargaining agreements (CBA) with either Teamsters Local 705, Teamsters 710, or BRAC. The fol- lowing chart depicts the arrangement as of 1 September: Santa Fe BNT Office employees BRAC Teamsters 710 Dock employees5 Teamsters 710 Teamsters 710 City Dnvers6 Teamsters 705 Teamsters 705 A qualification must be added. In July the city drivers represented by Teamsters 705 were employed directly by Santa Fe. From 1 August to 30 November, however, Santa Fe contracted its city driving work to Willett Transfer Company, and from 1 December to the present Santa Fe has contracted its city driving work to Seiwert Cartage Company. At all times Santa Fe's city drivers have been represented by Teamsters 705. Ralph Perri has been part of Santa Fe's management for 15 years. Since the purchase of Santa Fe by SFTT in July, Perri's title has been vice president of operations for the eastern region. The eastern region covers the States east of the Mississippi River. In addition, Perri has responsibilities for some terminals west of the Mississippi. Lewensohn testified that in late September "we" de- cided (apparently meaning that he and Avery Eliscu de- cided) to close BNT's Chicago terminal . Perri confirms this and adds that the decision included the plan to merge BNT's Chicago terminal into that of Santa Fe. Indeed, much more was involved than BNT's Chicago terminal, for it was decided7 to merge a substantial por- tion of the BNT system into that of Santa Fe with Santa Fe being the surviving carrier." Lewensohn testified that BNT's intermodal operations were not merged. Instead, the merger affected the motor vehicle division and the associated terminals. Lewensohn estimates that more than half of BNT's motor vehicle division merged into Santa Fe bargaining units. However, some of BNT's employees were laid off when some terminals were closed, and some others re- mained covered by their own collective-bargaining agreements even though Santa Fe took over the termi- nals. The instant case cerrters on Chicago At the same time it purchased BNT, SFTT also purchased BN Ter- minals, Inc from BNI 5 Dock employees included hostlers at Santa Fe 6 At BNT, the city drivers included the hostlers r Presumably SFTT made the decision 8 Although Santa Fe has an intermodal operation with several rail- roads performing hustling work at the rail yards, BNT performs inter- modal work for only the BN Railroad TEAMSTERS LOCAL 710 (SANTA FE TRAIL TRANSPORTATION) The Chicago terminal of BNT closed on 1 December. Lewensohn testified that he delayed the closing until then in order to capture BNT's customer base, and this meant retaining the telephone and communications there through October and November. The dispute which developed in this case arose from Local 710's demand that Santa Fe hire all eight of BNT's office employees (from BNT's Chicago terminal) at Santa Fe's Chicago terminal and apply the Local 710 contract to those eight. Santa Fe's response was that BRAC represented its office employees and that any BNT employees hired would have to come under the BRAC CBA since BRAC represented the surviving bar- gaining unit and held the surviving CBA. Of course, BRAC and the Teamsters are not affiliated with the same international union. By contrast, the other Chicago bargaining units generally were represented by the same Teamsters locals, and those locals were part of the IBT. Any disputes which arose concerning merger of the dock employees, city drivers, or others, appear to have been resolved by the parties. During the period of September through November, BNT employed eight clericals at its Chicago terminal, and these eight were covered by a contract with Team- sters 710. For the same period, Santa Fe employed about six clericals at its Chicago terminal, and these were cov- ered by a CBA with BRAC.9 Because Santa Fe was the surviving carrier, Lewen- sohn looked on the BRAC contract as the CBA which would cover the office employees at Santa Fe's Chicago terminal subsequent to the 1 December closing of BNT's Chicago terminal. Without contradiction, Perri testified that in late Sep- tember or early October when he and Hugh Corcoran, a business agent of Teamsters 710, were at BNT discussing merger of the dock employees, Perri mentioned that the office employees would have to come under Santa Fe's contract with BRAC. Saying he had no authority on the matter, Corcoran asserted that he could make no deci- sion and would have to refer that subject of the office employees to his superiors. Perri expressed a similar position, also uncontradicted in the record, at a meeting in late October or early No- vember with Corcoran, Alex Kern, and Annette Robin- son, all business representatives of Respondent. It was announced that Robinson was responsible for the office employees. There appears to have been very little discus- sion on the office employees on Perri's position, and Perri recalls that the union representatives' position re- garding the office employees was no position other than deferral to their superiors and that they would get back to Perri. Shortly after the second meeting Perri received a letter, dated 29 October, from Respondent and signed by Business Representatives Corcoran, Kern, and Robinson (G.C. Exh. 6). The letter shows copies to William D. 9 Although Lewensohn and Perri testified that there were five or six clericals at Santa Fe's Chicago terminal, Santa Fe's seniority roster lists seven office employees with one being in layoff status (G C Exh 5) However, the roster also identifies one as being in a category "excepted" from most provisions of the CBA, and that probably explains the differ- ence in the count 719 Joyce, secretary-treasurer of Local 710, and to John D. Kelahan, president of the Union . Addressed to Perri (and misspelling his name as Perry) at Santa Fe, the text reads: Dear Mr. Perry: This is to inform you that Local Union 710 de- mands that you absorb the dock and office contract that is currently in effect at B N Transportation. It is also imperative that the existing bargaining unit at B N Transportation be used to fill any and all job positions that may develop pursuant to this recent transaction. If you do not comply with this demand we will be forced to take any and all economic action nec- essary to secure same. Fraternally yours, Local Union 710 /s/ Alex Kern Alex Kern /s/ Hugh Corcoran Hugh Corcoran /s/ Annette Robinson Annette Robinson Business Representatives Lewensohn responded to the foregoing with his letter of 12 November. The response of Lewensohn reads (G.C. Exh. 7): Mr. H. "Corky" Corcoran Teamsters Local No. 710 4217 S. Halsted Chicago, IL 60609 Dear Mr. Corcoran: As of November 1, 1984, BN Transport was merged into Santa Fe Trail Transportation , and as a result thereof, the surviving labor agreement pro- vides for the merger of the combined office workers at the terminal located at 2940 W. 36th Street, Chi- cago, IL. The terminal merger shall take effect on Decem- ber 1, 1984. Past service credit for seniority, vaca- tions, layoffs, and sickdays earned will be recog- nized. The employees affected are listed below: Name Seniority Date V. Eckhardt 9-3-55 D. D'Amico 10-6-56 C. Gibson 11-27-56 S. Cleveland 5-23-60 G. Santoro 10-7-63 R. Bruk 8-16-69 W. Mystek 7-30-70 D. Dentzman 4-5-78 The benefits provided under the Brotherhood of Railway, Airline and Steamship Clerks (BRAG) labor agreement are equal to or better than the present labor agreement covering the employees in question. The people will be contacted by a BRAC 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative to answer any questions that may arise. Sincerely yours, Santa Fe Trail Transportation BN Transport /s/ Leonard J. Lewensohn Leonard J. Lewensohn President Respecting the last paragraph of his letter, Lewensohn admitted at the hearing that the wage rates of the BRAC contract are as much as $1 an hour less than some corre- sponding job classifications in the Local 710 agreement and that he was uncertain about the fringe benefits be- cause he had not compared them. The Union argues that the real cause of the instant dispute is that Lewensohn desired to jettison the more expensive Local 710 contract and to keep the cheaper BRAC agreement (Br. 6). In reply to Lewensohn's letter of 12 November, Secre- tary-Treasurer William D. Joyce of Local 710 wrote as follows on 15 November (R. Exh. 1): Dear Mr. Lewensohn: We acknowledge receipt of your letter dated No- vember 12, 1984, to Local 710, Business Representa- tive Hugh Corcoran. From the information provided, it appears that a majority of the office workers at the terminal locat- ed at 2940 West 36th Street, Chicago, Illinois, remain represented for purposes of collective bar- gaining by Local 710, I.B. of T. Local 710 expects that the Employer will contin- ue to recognize this Union as the sole and exclusive bargaining representative of the affected employees, and further expects that no action inconsistent with the terms of our Agreement and no unilateral action will be taken. This Union remains obligated to protect the inter- ests of the employees and it intends to do so. Your immediate attention to this matter will be appreciat- ed. Very truly yours, /s/ William D. Joyce William D. Joyce Secretary-Treasurer The letter from Joyce brought Attorney Cerone into the picture with his letter of 26 November to Joyce (G.C. Exh. 8): Dear Mr. Joyce- Our office has been retained to represent Santa Fe Trail Transportation in all labor problems that may arise as a result of the merger of BN Transport into SFTT. Since SFTT is the surviving company in this merger, it is our legal opinion that any and all em- ployees of BNT may be offered employment at SFTT under the terms and conditions as related to Local 710 in the letter dated November 12, 1984 to Mr. Corcoran. It is not our intent to circumvent any existing contracts between BNT and Teamsters Local 710, but as of December 1, 1984 there will no longer be a company known as BNT operating from this ter- minal located at 2940 W. 36th St., Chicago, Illinois. The present members of Local 710 working at that location are being offered employment for SFTT rather than the obvious alternative of termi- nation from a nonexistant entity. We welcome your comments in achieving these results as harmoniously as possible. Very truly yours, Erbacci, Syracuse & Cerone, Ltd. /s/ Jack P. Cerone Jack P Cerone As the reader will note, Cerone's use of the letters SFTT is obviously a reference to Santa Fe rather than to the holding company. At some point in November, Perri met with Joyce at the latter's office. Also present for the Union, in addition to Joyce, were Business Representatives Corcoran, Rob- inson, Frank Wsol, and possibly John Callahan. Perri tes- tified that the meeting occurred on 27 November. Of the union people, only Corcoran and Robinson testified. It appears that the others were unavailable. Although Cor- coran and Robinson established that they were at a grievance meeting elsewhere on 27 November, they did not deny that such a meeting occurred at some point. Accordingly, I find that the meeting did occur, most probably about mid-November, around the time of Joyce's 15 November letter to Lewensohn, and that Perri's account of the meeting is substantially accurate. 10 Perri testified that at this meeting, which I have fixed as roughly mid-November, Joyce said Local 710 had a contract with BNT covering eight office employees and that the Union was going to enforce the contract. Perri asked how there could be two contract units for one office. Joyce replied that it had been done in the past. Unaware of any such precedent, Perri stated that Santa Fe was the surviving firm and that he felt the BNT em- ployees would have to come under the BRAC contract Perri said that Santa Fe could take two of the eight and place six on layoff status and thereafter recall the six as business increased. Joyce reiterated his position that Local 710 had a contract covering eight employees, that the Union would take whatever action was necessary to en- force that contract, and that Perri should relay that mes- sage to his superiors. At that point the meeting broke up. On 30 November BNT laid off its eight office employ- ees at Chicago. The parties stipulated that on 30 Novem- ber BNT mailed a letter to each of its eight office em- ployees and that the text of the letter read (R Exh. 2): 10 On 3 December Pern made some notes about a meeting the after- noon of 3 December and of the meeting on 27 November (R Exh 4) It is possible that in making the notes on 3 December, Perri erroneously dated the earlier meeting as 27 November rather than an earlier, and more accurate, date TEAMSTERS LOCAL 710 (SANTA FE TRAIL TRANSPORTATION) Due to the combining of BN Transport and Santa Fe Trails Transportation (SFTT), and the re- sulting lack of work, you are hereby laid off at the end of your scheduled work shift on Friday, No- vember 30, 1984. You will be recalled in seniority order as the workload increases. Lewensohn and Perri testified that BNT's Chicago ter- minal closed on 1 December as scheduled. The parties stipulated that on 21 January 1985 two of the eight em- ployees laid off were recalled and employed at the Santa Fe terminal where, Perri testified, they are covered by the BRAC contract On Monday, 3 December, the Union began picketing. Before the picketing, strike negotiations, and subsequent events are discussed, we should consider certain provi- sions in the BRAC and Local 710 contracts. Lewensohn explained that he adopted his view that the BRAC contract was the surviving contract in the merger based on his consultation with counsel, on Santa Fe's past practice of dealing with BRAC, and on what he believed that the BRAC contract provided. However, Lewensohn was unable to point to any clause that he had relied on, and he concedes that it was not until a 17 January 1985 court date ii that Jake Freeman, Santa Fe's personnel director, explained to him the context and source of a provision in the BRAC agreement identified as rule 39. When pressed on cross-examination whether he relied on rule 39, Lewensohn testified, "No, I relied on the entire contract, the past practice of using this con- tract." "From a business decision and on advice of counsel," Lewensohn testified, "we believed that we had the right to close the BN terminal and do what we did." That ex- pression is probably the closest Lewensohn comes in de- scribing the basis of his,decision. There is no record evi- dence of past practice, and Lewensohn concedes that his discussion with the Santa Fe personnel director on rule 39 did not take place until after Lewensohn had testified in U.S. district court on 17 January 1985 In short, it was a business decision supported by a lawyer's advice. The record does not show the basis of the advice given by the lawyer, presumably Attorney Cerone. The BRAC contract, effective 1 July 1982 to June 1985 (G.C. Exh. 4a), was supplemented on 13 December 1984 in respects not relevant here (G C. Exh. 4b). Rule 39 is the provision closest in point in the BRAC con- tract It provides: RULE 39 NEW OR ADDITIONAL LINES-SENIORITY (A) Employees of any lines acquired by the Com- pany in the classes covered by this Agreement will come under the terms of this Agreement effective as of the date of such acquisitions, except as provid- ed in the note at the end of this rule. ' 1 The parties stipulated that on 17 January 1985 a partial hearing was held in U S district court involving a petition filed under Sec 10(1) of the Act pertaining to the facts of this case 721 (B) Unless otherwise agreed upon employees of such lines will retain their prior seniority dates on the acquired line and will accrue new seniority as of the date of acquisition on the district to which at- tached. A seniority date in the district where the new line operates will be established upon the basis of the seniority record maintained on the line ac- quired. Employees on the district will accrue se- niority on the acquired line as of the date of acquisi- tion. (C) In the event of consolidation of offices or the transfer of employees to other system offices, such consolidation or transfer will be made only on the basis of new seniority, unless otherwise agreed upon. NOTE: In the application of this rule it is under- stood that any labor contracts taken over with ac- quired lines will continue in effect for the duration of the labor contract unless otherwise agreed to be- tween unions interested. The contract which Local 710 had with BNT at Chi- cago was effective for the period of 1 April 1982 through 31 March 1985 (G.C. Exh. llc) The provisions of the Local 710 contract relevant here appear in article 10, Seniority, sections 9 through 16. They provide a comprehensive scheme for handling a merger. Thus, in section 9 appears the clause, "the seniority of the em- ployees absorbed or affected thereby shall be determined by mutual agreement between the Employer and the Unions involved." 12 Section 10 provides that when terminals or operations of two or more companies are combined then, subject to the provisions of section 16, the active seniority rosters shall be dovetailed. Once the seniority rosters have been dovetailed, the new roster "shall be utilized first and until exhausted to provide employment at such combined terminal or operation location." Some exceptions are provided, but only two are rele- vant under the evidence. First, under section 12, if one of the carriers is insolvent and bankruptcy proceedings have been instituted, then the employees of the insolvent firm are placed at the bottom of the new seniority roster. There is no evidence that BNT was insolvent. Lewen- sohn testified that during his purchase negotiations with BNI, the seller used the threat of closing BNT's truck terminals as leverage to increase the selling price of BNT. It is clear, however, that BNT was a going con- cern Indeed, Lewensohn testified that even after the purchase and closing of some BNT truck terminals that some of the BNT terminals are still operating as BNT terminals with the employees still working in BNT bar- gaining units. Moreover, SFTT at no time modified BNT's intermodal business. The insolvency exception is inapplicable. The other relevant exception is the dovetailing man- date which appears in section 16. That section, however, does not prescribe any specific formula, but instead pro- is There is no evidence that BRAC was involved, or even consulted, during the merger talks between Santa Fe and Local 710 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vides that the parties "may mutually agree to such dispo- sition of the seniority problems, as in their judgment is appropriate under the circumstances." Finally, article 17, section 2, provides that the Local 710 CBA "shall be binding upon the parties hereto, their successors, executors and assigns." Local 710 argues that Santa Fe is BNT's successor. CGC disagrees, contending that only SFTT was the suc- cessor and that Santa Fe did not assume any obligations to recognize or bargain with either Local 710 or BRAC as the representative of BNT's (former) employees. These arguments are treated later. 2. The bargaining units To this point the discussion almost presumes that the bargaining units were limited to the Chicago terminals of Santa Fe (under the BRAC contract) and BNT (under the Teamsters 710 agreement). The parties certainly acted as if that were so. Actually, the BNT terminal was part of a multiemployer 13 bargaining unit covering office and clerical employees (G.C. Exh. 1lc, art. 1, secs. 2, 6), and Santa Fe's office employees are part of a multis- tate14 administrative district of the Santa Fe system (G.C. Exh. 4a). Lewensohn testified that the geographi- cal scope of the unit in Santa Fe's CBA with BRAC covers what Santa Fe describes as its eastern district, or its administrative (clerical) employees east of Denver. As already mentioned, Perri described his expanded duties following SFTT's July purchase of Santa Fe including the facilities east of the Mississippi . Whether those east- ern facilities are located only in Arkansas and Illinois is unclear. Stated differently, respecting locations east of the Mississippi, the record names only two States, Ar- kansas and Illinois, as being in the eastern region or dis- trict. From the record it is clear that clericals in the Santa Fe system can transfer between terminals through a job- posting and bidding system. 15 Several terminals are men- tioned in this connection, including Amarillo, Chicago, Dallas, Denver, and Oklahoma City. The parties stipulat- ed that as of 30 November 1984 Santa Fe's unit of office employees covered by the BRAC CBA had 63 employ- ees on the seniority list (G.C. Exh. 5). That seniority roster names 10 locations where the 63 employees are employed: Albuquerque, Chicago, Dallas, Denver, El Paso, Houston, Kansas City, Oklahoma City, Topeka, and Wichita. As Wichita is Santa Fe's general office, 38 of the 63 employees work at Wichita. There are no loca- tions named for either Arkansas or Nebraska. During cross-examination, Lewensohn conceded that some of BNT's eight office employees had older seniority dates than even the most senior Santa Fe employee at Chica- go -The bargaining relationship between Santa Fe and BRAC reaches back many years.16 In addition, there are 19 Principally the Illinois Trucking Associations, Inc 14 The nine states of Arkansas , Colorado, Illinois, Kansas, Missouri, Nebraska, New Mexico, Oklahoma, and Texas 15 Rule 11 of the BRAC CBA provides that new positions and vacan- cies will be posted for bidding across the seniority district (G.C Exh 4a at 7). 16 The parties stipulated that the bargaining relationship predates 1950 Board decisions bearing on the BRAC unit . In Santa Fe Trail Transportation Co., 119 NLRB 1302 (1958) (Santa Fe I),17 the Board, in Case 17-RC-2572, found appropri- ate a unit of Santa Fe's office employees in an eight-state area. 18 Four years later, in Case 17-RC-3775, the Board again found an office employee unit appropriate for the same eight-state area. Santa Fe Trail Transportation Co., 139 NLRB 1513 (1962) (Santa Fe II). 19 Santa Fe II was followed by an election (in the same Case 17-RC-3775) victory of BRAC over Teamsters 795 on 3 January 1963 and a certification of BRAC as the ex- clusive bargaining representative of Santa Fe's employees in the following unit (G.C. Exh. 17): All clerks, secretaries, stenographers, office machine operators, PBX operators, clerical and office em- ployees in the offices and freight depots of the Em- ployer employed in the geographical area of Arkan- sas, Colorado, Kansas, Missouri, Nebraska, New Mexico, Oklahoma, and Texas, excluding profes- sional employees, confidential employees, execu- tives, managerial employees , over-the-road drivers, local cartage drivers, mechanics, garagemen, dock employees, watchmen, guards, and all supervisors as defined in the Act. The parties stipulated that Santa Fe and BRAC added Illinois to the contractual unit beginning in 1967. The unit described in the current BRAG CBA is identical to the certified unit with three differences. First, Illinois has been added. Second, stenographers have been omitted (perhaps inadvertently). Third, the contractual unit has been divided into group I and group 2. Group 1 contains the unit classifications for Santa Fe's "offices." The "freight depots" of the certified unit have been moved to group 2 of the contractual unit. Under rule 4 of the 1982-1985 CBA, the two groups are counted as separate districts for purposes of seniority. 3. Related charges and petitions To complete the background picture, I shall briefly mention the related charges and petitions. The parties stipulated that (1) on 11 December the Union, in Case 13-CA-24703, filed an 8(a)(5) charge against Santa Fe; (2) on 12 December the Union filed an 8(a)(2) charge against Santa Fe in 13-CA-24705; (3) NLRB Region 13 dismissed both charges on 19 December, from which action Respondent appealed; (4) on 14 March 1985 the General Counsel denied Local 710's appeal; and (5) on 20 March 1985 the Union submitted a motion for recon- sideration to the General Counsel on which, as of the hearing, the General Counsel had not acted. In a 19 June 1985 conference call between CGC, Re- spondent's counsel, and me, I requested copies of these documents to see whether they would assist in clarifying the issues. The documents were furnished and I have re- viewed them. However, in making my decision, I have not relied on any independent factual assertion contained 17 Santa Fe I 19 All the nine current States with the exception of Illinois 19 Santa Fe II TEAMSTERS LOCAL 710 (SANTA FE TRAIL TRANSPORTATION) in the papers, including any attachments. I have inserted a set of the copies so furnished in the formal folder for the General Counsel's exhibits and numbered them as follows. Case 13-CA-24703: charge (ALJ Exh. 1); dis- missal (ALJ Exh. 2). Case 13-CA-24705: charge (ALJ Exh. 3); dismissal (ALJ Exh. 4). Respondent's 15 January 1985 appeal of the dismissal is marked as (ALJ Exh. 5), the General Counsel's 14 March 1985 denial of the appeal is marked (ALJ Exh. 6), and Respondent's 20 March 1985 motion for reconsideration is marked (ALJ Exh. 7). The General Counsel acknowledged receipt of the reconsideration motion by letter dated 26 March 1985 (ALJ Exh. 8). Local 710 renews here as affirmative defenses its alle- gations that Santa Fe refused to bargain in violation of Section 8(a)(5), and that Santa Fe unlawfully assisted BRAC in violation of Section 8(a)(2) of the Act. Even though the Union's charges were dismissed, such dismis- sals do not collaterally estop the Union from raising those grounds here as defenses. Hotel & Restaurant Em- ployees Local 274 (Warwick Caterers), 269 NLRB 482 (1984). As previously noted, the parties stipulated that on 17 January 1985 a partial hearing was held in U.S. district court on a petition for an injunction under Section 100) of the Act, and that the picketing, begun 3 December, ceased on that date Relevant to the 8(b)(7)(A) and (C) allegations, and the 45 days of picketing,20 is the petition Local 710 filed 31 December in Case 13-RC-16606 seeking an election in a unit composed of all the office employees formerly em- ployed by BNT at its Chicago terminal (G.C. Exh. 2). The petition named Santa Fe as the employer. By letter dated 10 January 1985 the Regional Director for NLRB Region 13 dismissed Local 710's representation petition on the following grounds (G.C. Exh. 3): As a result of the investigation it appears that a valid collective bargaining agreement currently exists between the Employer and BRAC. It further appears that the unit of employees for which the pe- titioner seeks to act as bargaining agent is inappro- priate for collective bargaining purposes. Further proceedings are not warranted at this time and I am, therefore, dismissing the petition in this matter. The Union filed its petition for review which still was pending as of the hearing. Following the close of the hearing I was furnished a copy of the Board's telegraph- ic order of 30 April 1985 denying the Union's request for review on the basis the appeal "raises no substantial issues warranting reversal of the Regional Director's action." I take official notice of the Board's 30 April 1985 Order. 20 The stipulation specifically was modified to provide that the picket- ing was not continuous That there may have been no picketing on Sun- days, or 24 hours a day, does not alter the stipulated nature of the picket- ing-that it took place on virtually every working day during the 45-day period 723 B. Picketing Begins 3 December-Negotiations Fail When Perri arrived for work at Santa Fe's Chicago terminal about 7:15 a.m. on Monday, 3 December, he discovered that Local 710 was picketing at the terminal gate. The parties stipulated that the picket signs bore the legend: TEAMSTERS ON STRIKE SANTA FE-BNT LOCAL 710, IBT Although office employees represented by BRAC crossed the picket line, the dock employees, represented by Teamsters 710, and city drivers, represented by Teamsters 705, would not cross. As in-bound over-the- road drivers would not cross either, Respondent had to "piggyback" in everything. The effect of the picketing during the course of the strike caused Santa Fe much delay and expense. Around 9:30 or 10 a.m. on 3 December, the parties held the first of a series of meetings, telephone calls, and conversations ending on 7 December.21 There is a criti- cal dispute concerning what was said. Local 710 con- tends that in these meetings and conversations, Santa Fe agreed (1) to hire immediately two of the eight office employees formerly employed at the BNT terminal, (2) to place the remaining six on preferential recall, and (3) to sign a Local 710 contract covering the former BNT employees (starting with the two, but including any of the six recalled). The Union's witnesses who testified at these meetings are Local 710 Business Representatives Hugh Corcoran, Martin DeWan, and Annette Robinson. Agreeing that Santa Fe, at all times, offered to per- form as to the first two (hire two now and place six on preferential recall), the General Counsel argues that Santa Fe never agreed to the third item (sign a Local 710 contract covering the former BNT employees as a separate bargaining unit in the Santa Fe office). The General Counsel called Lewensohn and Perri who testi- fied in support of this position. I credit Lewensohn and Perri over the Union's wit- nesses. As early as September, Perri expressed his opin- ion to Corcoran, and reiterated it to Secretary-Treasurer Joyce in mid-November, that the BRAC CBA would be the surviving contract. Local 710's letters of 29 October and 12 November (the latter from Secretary-Treasurer William D. Joyce) express the Union's position that Santa Fe must absorb all eight of BNT's employees. Lewensohn's letter of 12 November and Cerone's of 26 November make clear that the BNT employees have been merged under the BRAC contract. Rather than at that point contending that all the combined employees should be placed on a single se- niority list by dovetailing their seniority dates, Local 710 persisted through November in its hardline position. At the first meeting on 3 December (neither Lewen- sohn nor Joyce was present, although Perri did confer with Lewensohn by telephone), the union representatives 21 Thereafter the parties began filing unfair labor practice charges against each other These charges have been summarized earlier 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present seemed content with Perri's offer of hiring two now and six later. What happened the morning of 3 De- cember, I find, is that there was a mutual mistake. Nei- ther side stated what contract would apply. Perri as- sumed that the two and the six would come under the BRAC CBA. The Local 710 representatives erroneously assumed that the Local 710 contract would apply, and they left the office with the mistaken impression that the parties had a tentative agreement to settle the strike on the basis that Santa Fe would recognize Local 710 as to the former BNT employees. That was a wishful assump- tion. At a meeting that afternoon, with both Lewensohn and Joyce among those present, Joyce threw a curve at everyone22 by presenting a two-paragraph proposal to Lewensohn which almost reverted to the Union's Sep- tember-November position: recognition of Local 710 and hire immediately all eight former employees of BNT for 2 weeks. After a 2-week evaluation of its staffing needs, Santa Fe could lay off those not needed, except that Santa Fe would have to retain at least two of the BNT employees (G.C. Exh. 9). Lewensohn conferred by telephone with Attorney Cerone and then told Joyce that he could not agree be- cause Santa Fe could not sign a Local 710 contract be- cause the company already has a contract with BRAC, but that Santa Fe would agree to file a unit clarification petition in order to let the Board say which union was the survivor. Joyce said that the only way he would remove the pickets was if Santa Fe signed a Local 710 contract. The meeting ended without resolution of the dispute or the strike. On the morning of 5 December Local 710 Business Representative Martin DeWan presented Perri with a five-point proposal (G.C. Exh. 10). Although expressed as five numbered paragraphs, the proposal embodies the agreement the union representatives understood on 3 De- cember to have been the agreement: (1) hire two BNT clerks immediately, (2) place the other six on layoff, and (3) recognize Local 710's contract as the governing doc- ument for those eight. (Points 4 and 5 refer to layoff let- ters and a reasonable expectation of recall within 12 months.) DeWan also delivered two copies of the Local 710 agreement, already signed by Joyce, to Perri at the same time. He told Perri that the pickets would come down if Santa Fe signed. The parties dispute whether Perri agreed to the five points. DeWan testified that Perri said, "No problem," and that he would take it to the corporate office (Lewensohn) for signature. This is incredible in light of the prior position of the parties, and I credit Perri's testi- mony that he simply called Lewensohn, read the docu- ment to him, and then told DeWan that they would get back to him. Perri took the document to Lewensohn who telephoned Attorney Cerone. Desiring to continue the dialogue with Local 710 in the hope of getting the picketing stopped, Lewensohn 22 Pem testified without contradiction that Joyce said that none of his agents was aware of the proposal he was about to hand Lewensohn Al- though Perri testimonially referred to the document as the five-point pro- posal-a subsequent offer of the Union (G C. Exh. 10)-it is clear that he was describing the two-paragraph proposal in evidence as (G C Exh 9). and Cerone modified the Union's five-point proposal by adding language rendering recognition of Local 710 "subject to a determination of the National Labor Rela- tions Board petition for unit clarification." (G.C. Exh. Ila.) Although a sixth paragraph also was added, it simply states that the pickets would be removed when the agreement is signed and that Local 710 agrees to take no further action until the Board rules on the unit clarifi- cation. On 6 December Lewensohn signed a copy of the Local 710 contract, but modified it by adding the caveat, "This contract is modified by an agreement dated De- cember 6, 1984." (G.C. Exh. I lb.) The modifying agree- ment referred to is Santa Fe's six-point counterproposal. When DeWan came to Perri's office the afternoon of 6 December, Perri gave DeWan the two documents (the six-point counterproposal and the modified Local 710 contract). Lewensohn had signed the Local 710 contract, with the modifying caveat, and both Lewensohn and Perri had signed the six-point counterproposal. When DeWan, in reading the documents , came to the unit clarification (UC) language, he telephoned Joyce and Union Attorney Marvin Gittler and was told the Union could not sign as long as the UC language was in the document. Later that afternoon in a telephone conversation (it is unclear who initiated the call), DeWan told Lewensohn that Local 710 would remove the pickets if Santa Fe de- leted the 14 words of the UC language, that he knew Santa Fe was using other firms to do its pickup and de- livery and that he would start picketing those companies in order to shut down Santa Fe completely in Chica- go.23 Lewensohn said he would ask Cerone since he was about to contact the attorney anyway. A little later, Lewensohn called DeWan. (In the mean- time the two lawyers, Cerone and Gittler, had conferred by telephone.) Lewensohn said he could not sign a 710 agreement without the UC language. DeWan said it was a shame that only 14 words were preventing a settle- ment. Lewensohn responded by asking what could Local 710 do for Santa Fe to get the 14 words deleted. What did Lewensohn mean, Dewan asked. Teamsters 705, Lewensohn explained, had made concessions in getting a contract with Santa Fe and what was 710 going to do for him. DeWan said that he did not answer for Local 705, and he had no right to give concessions from a cur- rent CBA, although concessions could be discussed when the contract comes up for renewal shortly.24 No resolu- tion was reached. The following morning, 7 December, in a conversation with Perri, DeWan repeated the threat to expand the picketing to wherever Santa Fe was doing business. Perri further testified that the Union picketed one of Santa 23 Conceding that he could have mentioned that Local 710 might extend the picketing if there was no settlement , DeWan denies that such a statement was linked to the UC language. I do not credit DeWan Moreover, his testimony on this point makes no sense 24 Although Lewensohn was called as a rebuttal witness, he did not dispute DeWan's concession testimony. I credit DeWan in this respect as is shown by the composite version of their testimony which I have set forth TEAMSTERS LOCAL 710 (SANTA FE TRAIL TRANSPORTATION) Fe's subcontractors, Dominic Cartage Company, in mid- January 1985 There were no further conversations between the par- ties before they met on 17 January 1985 at the U.S. dis- trict court on the Regional Director's petition for an in- junction under Section 10(1) of the Act. C. Analysis and Conclusions Section 8(b)(7) of the Act makes it unlawful for a labor organization to picket, or threaten to picket, an em- ployer where an object is forcing or requiring an employer to recognize or bargain with a labor organization as the representa- tive of [its] employees, or forcing or requiring the employees of an employer to accept or select such labor organization as their collective-bargaining rep- resentative, unless such labor organization is cur- rently certified as the representative of such em- ployees. (A) where the employer has lawfully recognized in accordance with this Act any other labor organi- zation and a question concerning representation may not appropriately be raised under Section 9(c) of the Act, (C) where such picketing has been conducted without a petition under section 9(c) being filed within a reasonable period of time not to exceed thirty days from the commencement of such picket- ing. Local 710 reasserts, as grounds of defense,25 all the ar- guments it previously has submitted in the 8(a)(5) and (2) charges it earlier filed against Santa Fe. I find these de- fenses unpersuasive. One of Respondent's arguments does cause pause, however, and that is its successorship contention. Men- tioned in passing earlier, that position expresses the con- tention that Respondent's picketing and other conduct was not unlawful because Local 710 was the bargaining representative of the BNT employees inasmuch as Santa Fe was their successor employer. CGC argues (Br. 23-24) that the successorship conten- tion "ignores the realities" because it was SFTT which was the successor, that Santa Fe and BNT remained sep- arate firms until 1 December26 that Santa Fe did not assume any obligations to recognize or bargain with either union as the representative of any of BNT's em- ployees. Santa Fe, CGC continues, voluntarily hired two of BNT's office employees, that any representation by Local 710 was to bargain with BNT or SFTT over the effects of the closing of the BNT terminal, and that once the employees were hired by Santa Fe "they lost their separate identity, their former unit no longer existed, and 25 Although Respondent failed to plead the grounds as affirmative de- fenses, the General Counsel did not object to that failure or to Respond- ent's assertion of the defenses at the hearing as unsupported by pleadings 26 It appears from Lewensohn's letter of 12 November, quoted earlier, that the legal , or corporate, merger took effect I November, although the physical implementation did not occur for another month 725 Santa Fe could not and did not succeed into any obliga- tion to recognize Local 710 as their representative." Further, CGC argues, the BNT employees would not constitute an appropriate unit, it would be untenable to have two separate units performing the same work, the BRAC unit substantially outnumbers the BNT unit,27 and "the addition of the employees formerly represented by Local 710 to the BRAC unit constituted simply the voluntary hire of additional employees to perform the same work historically performed by employees in that unit, or at most, the accretion of a small number of em- ployees to the BRAC unit." CGC's remaining contentions and positions include the argument that the BRAC CBA serves as a contract bar to any representation proceeding and, in effect, a bar to recognition of Local 710 or application of its CBA to the former BNT employees. Respecting the successorship issue, the General Coun- sel's argument begins with a sophism by contending that SFTT was the successor rather than Santa Fe SFTT, as with BNI before it, was the owner holding company of BNT. BNI was not the primary employer, and neither is SFTT. A strong argument could be made that SFTT, BNT, and Santa Fe are nothing but the alter ego of Lewensohn who is the president of all three and who clearly makes the decisions and operates the three enti- ties as a coordinated one-man show. But aside from any alter ego question (not addressed by the evidence), if there was a successor to BNT's Chi- cago operation, it was Santa Fe. Thus, I find the realities to be different from how CGC describes them. Never- theless, even if Santa Fe is the successor , it appears that picketing for a recognitional object beyond 30 days, as Local 710 did here, is prohibited by Section 8(b)(7)(C). Retail Clerks Local 1557 (Giant Foods), 217 NLRB 4 (1975). Moreover, for a representation petition to toll the run- ning of the 30 days specified in Section 8(b)(7)(C), the petition must be a valid one. See Squillacote Y. Teamsters Local 344, 561 F.2d 31, 34 (7th Cir. 1977). Otherwise, as CGC observes (Br. 29), meritless petitions could be filed in order to defeat the statutory purpose of Section 8(b)(7)(C). The Union's 31 December petition in Case 13-RC-16606 was dismissed as having no merit and the Board upheld the dismissal. That determination is bind- ing here. Let us now consider what did occur. Teamsters Local 710 in fact bargained with Santa Fe. Initially Respondent took a hardline position-hire all eight and recognize 710 as to the eight. This would be in a separate unit from the BRAC unit. That two units would be working side by side in the same job classifications was Santa Fe's prob- lem under Respondent's position. While seeking the ben- efits of a Local 710 contract, Secretary-Treasurer Joyce at no time proposed the dovetailing concept embodied in 27 Contrary to this assertion, the record does not show the number of BNT's office employees at BNT's other terminals, nor is the question ad- dressed of what constituted the BNT unit The Local 705 contract de- scribes a multiemployer unit CGC asserts, on brief at fn 31, that a total of 19 BNT employees merged into Santa Fe facilities Lewensohn so tes- tified that they became covered by the CBA with BRAC 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Local 710 CBA. Whether that would have made a difference in the negotiations is unknown. We also know that the December negotiations did produce some modification of positions. Local 710 would accept the two now and six later offers of Santa Fe if Santa Fe recognized Local 710 for the separate unit. Santa Fe actually agreed to that position, but with the proviso that the Board determine the issue in a unit clari- fication proceeding. The parties reached impasse over the UC condition. It seems clear that regardless of whether Santa Fe was a successor, it bargained with Local 71Q over the effects of the closing of the BNT terminal. An impasse was reached. In the usual bargaining situation, a union could resort to the economic pressure of a strike in order to persuade an employer to see things the Union's way. Not only did the strike sanction fail here as a bargaining tactic, but the question posed is whether the picketing was illegal under Section 8(b)(7). The BRAC office unit covers nine states, and under rule 11 of the BRAC CBA new positions are required to be posted on bulletin boards at all the offices serving those states. Apparently bypassing BRAC and the BRAC CBA, Santa Fe proposed to Local 710 that it would hire, and eventually did hire, two of BNT's eight office employees, and to put the others on preferential recall Can the BRAC CBA serve as a bar when Santa Fe disregarded the rule 11' s requirement that new posi- tions be posted for bidding? Can Santa Fe pick and choose when to apply the CBA it has with BRAC ac- cording to when such choice serves its own interests? When an employer merges two groups of employees who have been historically represented by different unions, a QCR arises, and the Board will not impose a union by applying its accretion policy where neither group of employees is sufficiently predominant to remove the question concerning overall representation. Martin Marietta Co., 270 NLRB 821, 822 (1984). In such circumstances, even though one of the CBAs remains in effect, it will not bar an election. Id. Martin Marietta, supra, involved two clearly defined locations with the Steelworkers representing a unit of production and maintenance (P&M) employees at the north plant of Martin Marietta, and the Cement Workers representing a P&M unit at the south plant, owned by a different employer. The two unions had represented the units for over 35 years. The case arose when Martin Marietta acquired the south plant and merged the units into a new operation. In that case the units were similar in size, with the Steelworkers representing 159 employ- ees and the Cement Workers 93, both figures including a number of employees in layoff status. When only a few employees are added to a larger unit, the Board has held that the few have been accreted to the many. Meat Cutters Local 378 (Waldbaum, Inc.), 153 NLRB 1482 (1965) (finding violation of Sec. 8(b)(7)(A) because of accretion and contract bar). So what do we consider the unit here to be? The eight from BNT's Chicago terminal plus the seven at Santa Fe's Chicago terminal? If so, that would suggest a situa- tion like Martin Marietta where the Board directed an election in an overall P&M unit. But there is no basis for classifying the instant situation as a new operation . Santa Fe simply tried to accommo- date the BNT employees. 28 In order to do so, it ignored rule 11 of the BRAC CBA, but that is a narrow action restricted to this particular situation . Of course, some harm to BRAC and unit employees must be presumed, for it is possible that if vacancies at Chicago had been posted for bidding, employees from some of Santa Fe's other terminals might have bid on the jobs. To carve the Chicago terminal out of the overall BRAC unit now would penalize both BRAC and the employees of Santa Fe who might one day desire to transfer to or from Chicago to other terminals in the se- niority district. It is no answer to say that Santa Fe al- ready has carved Chicago from the unit . BRAC was by- passed. To find that Santa Fe's accommodation of the BNT employees effectually carved Chicago from the overall BRAC unit of 63 employees would grossly multi- ply the slight harm Santa Fe did to BRAC and unit em- ployees. There is no wisdom in that solution. In balancing the competing interests here, I conclude that the General Counsel has proved her allegations that Respondent violated Section 8(b)(7)(A) and (C) of the Act. CONCLUSIONS OF LAW 1. Santa Fe is an employer within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Respondent Teamsters Local 710 is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(b)(7)(A) of the Act by the following conduct: (a) By Secretary-Treasurer William D. Joyce's mid- November statement to Santa Fe's vice president, Ralph Perri, that Local 710 would take whatever action was necessary to persuade Santa Fe to recognize Local 710 as the bargaining representative of BNT's former office employees and to apply Local 710's contract to those employees. (b) By Joyce's statement to Santa Fe President Leon- ard Lewensohn at the afternoon meeting of 3 December that Local 710's pickets would not be removed from Santa Fe's gate unless Santa Fe agreed to Local 710's demand that Santa Fe recognize Local 710 and adopt and apply the 710 contract to the former BNT employ- ees. (c) By Local 710 Business Representative Martin DeWan's 6 December telephone threat to Perri to picket Santa Fe at all Cartage companies with whom Santa Fe was doing business (d) By picketing at Santa Fe's Chicago terminal in face of Santa Fe's lawful recognition of, and contract with BRAC, and since a QCR could not appropriately be raised. 4 Teamsters 710 violated Section 8(b)(7)(C) of the Act by picketing at Santa Fe's Chicago terminal for a period exceeding 30 days in support of its demand that Santa Fe 28 Santa Fe apparently placed the two BNT employees it hired at the bottom of BRAC's seniority list in accordance with rule l l(c) Local 710 never sought to have the eight BNT clericals dovetailed into the BRAC seniority list TEAMSTERS LOCAL 710 (SANTA FE TRAIL TRANSPORTATION) recognize it as the exclusive bargaining agent for the eight former office employees of BNT, and in support of its demand that Santa Fe adopt and apply the Teamsters 710 CBA to the former BNT employees. THE REMEDY Having found that Teamsters Local 710 has engaged in unfair labor practices, I shall order it to cease and to take certain affirmative action to effectuate the policies of the Act. On these findings of fact, conclusions of law, and the entire record, I issue the following recommended Order29 ORDER The Respondent, Highway Drivers, Dockmen, Spot- ters, Rampmen, Meat Packing House and Allied Prod- ucts Drivers and Helpers, Office Workers and Miscella- neous Employees, Local Union No. 710, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1 Cease and desist from picketing or threatening to picket The Santa Fe Trail Transportation Company where an object thereof is forcing or requiring Santa Fe to recognize or bargain with it as the collective-bargain- ing representative of certain of Santa Fe's employees: (a) Where Santa Fe has lawfully recognized in accord- ance with the Act any other labor organization and a question concerning representation may not appropriate- ly be raised under Section 9(c) of the Act; or (b) Without a valid petition under Section 9(c) of the Act having been filed within a reasonable period of time not to exceed 30 days from the commencement of the picketing. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business office copies of the attached notice marked "Appendix."30 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al 29 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 20 If 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 Nation- al 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 " 727 (b) Deliver to the Regional Director signed and dated copies of the notice sufficient in number for posting by Santa Fe, should it so desire, at all locations where no- tices to employees are customarily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT picket or threaten to picket The Santa Fe Trail Transportation Company where an object there- of is forcing or requiring it to recognize or bargain with us as the collective-bargaining representative of certain of its employees. Where The Santa Fe Trail Transportation Company has lawfully recognized in accordance with the Act any other labor organization and a question con- cerning representation may not appropriately be raised under Section 9(c) of the Act, or Without a valid petition under Section 9(c) of the Act having been filed within a reasonable period of time not to exceed thirty days from the commence- ment of the picketing HIGHWAY DRIVERS, DOCKMEN, SPOTTERS, RAMPMEN, MEAT PACKING HOUSE AND ALLIED PRODUCTS DRIVERS AND HELP- ERS, OFFICE WORKERS AND MISCELLANE- OUS EMPLOYEES, LOCAL UNION No 710, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA