Production Workers Union Of Chicago And Vicinity, Local 707; National Production Workers Union

340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Production Workers Union of Chicago and Vicinity, Local 707; The National Production Workers Union and Checker Taxi Company, Inc. and Yellow Cab Company Inc. Cases 13-CC-1159 and 13-CC-1160 26 March 1987 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 14 December 1984 the National Labor Rela- tions Board issued a Decision and Order in this proceeding' in which it found that the Respond- ents violated Section 8(b)(4)(i) and (ii)(B) of the Act by picketing on behalf of independent contrac- tor taxicab drivers who had a dispute with the Charging Parties over the terms of their leases. On a petition for review and a cross-application for en- forcement of the Board's Order, the United States Court of Appeals for the District of Columbia Cir- cuit on 13 June 1986 vacated the Board's Order and remanded the case to the Board for further proceedings consistent with the court's opinion.2 The Board thereafter accepted the court's remand and notified the parties that they could file statements of position. The General Counsel and the Respondents have filed statements of position. We have carefully reviewed the record in this case, as well as the statements of position, and, for the reasons discussed below, we have decided to overrule our prior decision in this case and dismiss the complaint. Specifically, we agree with the court's finding that the picketed companies were not neutral parties to the dispute and therefore the Respondents' picketing was primary activity which does not fall within the proscriptions of Section 8(b)(4). The relevant facts, which are not in dispute, are as follows. Checker Taxi Company and Yellow Cab Company own about 80 percent of the li- censed taxicabs in Chicago. Each Company oper- ates both "lease" cabs driven by independent con- tractors (LCDs)3 and "commission" cabs driven by union-represented employees.4 Both Companies op- erate many more lease cabs than commission cabs.5 The LCDs lease the cabs for periods ranging from half a day to 1 week, with daily leases being the general practice. Six of Yellow's seven garages i 273 NLRB 1178 (1984). 2 793 F 2d 323 (D.C. Cir. 1986) a The lease cab drivers' status as independent contractors was deter- mined in Seafarers Local 777 v NLRB, 603 F 2d 862 (D.C. Cir. 1978). 4 The commission drivers are represented by Seafarers Local 777. 5 At the time of the hearing, only 340 of Yellow's 2166 cabs and 200 of Checker's 1500 cabs were operated by commission drivers. house only lease cabs; the remaining garage houses cabs operated by commission drivers. Similarly, Checker maintains four garages, with cabs operated exclusively by LCDs and one garage with cabs op- erated by both LCDs and commission employees. By 1980 the LCDs had become increasingly dis- satisfied with the terms of their leases and began to band together to deal collectively with the Compa- nies under the leadership of an LCD, the Reverend Joseph McAfee. In early July 1980 McAfee con- sulted with officials of the Respondents, and by the end of the month the Respondents created the "Leased Taxicab Drivers Division" within their or- ganizations. McAfee had enlisted about 1200 of the Companies' approximately 3126 LCDs in his effort, and the Respondents began signing up the LCDs and collecting initiation fees and dues. On 8 August 1980 the Respondents requested the Companies to recognize and bargain with them on behalf of the LCDs, but the Companies refused to do so. On 12 August 1980 the Respondents and some LCDs began picketing and handbilling at the Com- panies' garages. Except for one brief incident on the first morning of the picketing, the Respondents and LCDs confined their picketing to garages that housed only cabs operated by LCDs.6 The various picket signs read: "Please do not lease a cab until an agreement is signed regarding your working conditions"; "Lease Cabs on Strike Production Workers Union Local 707"; and "Lease Cab 707 Drivers 707 on Strike Yellow & Checker Taxi Cab Company." The picketing was effective in reducing the number of cabs leased by the LCDs from the Companies, and during the picketing some of the Companies' suppliers refused to make deliveries. There is no evidence that any customer declined to use the Companies' cabs during the picketing. In its prior decision in this case, the Board ob- served that in enacting Section 8(b)(4), Congress had the dual objectives "of preserving the right of labor organizations to bring pressure to bear on of- fending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own," quoting from NLRB v. Denver Building Trades Council, 341 U.S. 675, 692 (1951). The Board held that since the LCDs were independent contractors, the Respond- ents' efforts on their behalf fell neither within "the rights of labor to organize to better its conditions"7 B On that first morning the Respondents established a picket line at Yellow's garage which houses only employee-operated cabs. Within 30 minutes, a Seafarers Local 777 official went to the garage and advised the Respondents that no lease cabs were operated out of that garage. The Respondents promptly removed their pickets and never resumed picket- mg at that location. We shall discuss this incident below. 7 Allen Bradley Co. v. Electrical Workers IBEW Local 3, 325 U.S. 797, 806 (1945), quoted in NLRB v International Rice Milling Co, 341 U.S. 665 fn. 7 (1951). 283 NLRB No. 56 PRODUCTION WORKERS LOCAL .707 (CHECKER TAXI) nor "the right of labor organizations to bring pres- sure to bear on offending employers in primary labor disputes. 118 Further, the Board found no evidence that Con- gress intended that picketing on behalf of inde- pendent contractors is to be considered within, the proviso to Section 8(b)(4) protecting primary activ- ity. Accordingly, the Board found that the Re- spondents` "goal, that of causing the interruption of leases between the [cab companies] and the LCDs, in the absence of a primary labor dispute, was clearly within the scope of the broad proscription of Section 8(b)(4)(ii)(B)."9 273 NLRB at 1181. In addition, the Board concluded that the Re- spondents' brief picketing at Yellow's garage hous- ing cabs used only by commission drivers violated Section 8(b)(4)(i)(B). The Board stated that there was no evidence that the Respondents could not have learned that no LCDs used the garage before commencing their picketing. Contrary to the Board, the D.C. Circuit held that Section 8(b)(4) does not prohibit union in- volvement in all picketing by or on behalf of inde- pendent contractors . Instead, the court asserted that Section 8(b)(4) bars only "`secondary activity': union attempts to involve neutral third parties in disputes not their own."10 The court determined that the picketing at the LCD garages was not un- lawful because it was directed against only the cab companies, who were not neutral parties, but rather were "directly and intimately involved in the underlying dispute." Thus, the court decided that Congress intended "primary activity" to in- clude all picketing against nonneutral parties, whether by independent contractors or by anyone else. The court emphasized that a neutral is a third party "wholly unconcerned" in a dispute between two other parties, and that "Yellow and Checker are not at all neutral in this sense ; the LCD's dis- pute over contract terms lies precisely and only with the cab companies." Accordingly, the court remanded the case to the Board for application of the correct standard, i.e., that Section 8(b)(4) pro- scribes only picketing'against neutral parties."' s Denver Building Trades, supra at 692. As a threshold matter, the Board had reversed an administrative law judge's finding that the Board lacked subject matter jurisdiction because the case did not involve statutory employees. The Board stated that it was well established that statutory labor organizations, such as the Re- spondents, are subject to the proscriptions of Sec. 8(b)(4) "whether or not their activities concern statutory employees." The D.C. Circuit upheld this aspect of the Board's decision. 10 793 F.2d at 327. 11 In view of the remand on this ground , the court found it unneces- sary to address the Board's fording that the one-time picketing at Yel- low's commission drivers' garage violated Sec. 8(bX4)(i)(B ). The court, however, noted a reservation about the Board's conclusion that the pick- eting at that garage was an attempt to cause the commission drivers to stop work. See infra. 341 We now agree with the court's findings that picketing against a neutral party is a necessary predicate to finding a violation of Section 8(b)(4) and that in this case there were no neutral parties subjected to picketing. Although the picket signs appealed to LCDs to cease doing business with the Companies, the picketing was directed against the Companies, which were the only parties with whom the Respondents had a dispute. The picket- ing occurred only at the cab companies' premises, and the picketing concerned only the Respondents' dispute with the Companies. The Respondents did not appeal to potential customers of the LCDs or to customers or employees of other persons who do business with the Companies . In this regard, we note that we are constrained to accept the court's factual finding that the LCDs were essentially a monolithic group united in a dispute with the Com- panies and uniform in their definition of their mutual self-interest.12 That the dispute here did not concern statutory employees is not determinative of whether the picketing was primary or secondary activity. Rather, the key factor is whether the picketing was applied against a neutral party that Section 8(b)(4) is intended to insulate from labor disputes. Thus, the Board's prior decision erred by focusing exclu- sively on the status of the LCDs as nonemployees, and disregarding the nonneutral status of the cab companies. In this respect, we conclude that the following statement by the Supreme Court in Inter- national Rice Milling, supra, is applicable here: By § 13, Congress has made it clear that § 8(b)(4), and all other parts of the Act which otherwise might be read so as to interfere . with, impede or diminish the union's tradition- al right to strike, may be so read only if such interference, impediment or diminution is "spe- cifically provided for" in the Act. . . . No such specific provision in § 8(b)(4) reaches the incident here.13 As the Respondents picketed no neutral party in this case, we find that the picketing was primary activity. Accordingly, we overrule our prior deci- sion and find that the Respondents' picketing at the LCD garages did not violate Section 8(b)(4)(ii)(B). We also reverse our previous finding and dismiss the 8(b)(4)(i)(B) allegation concerning the Respond- 12 The finding that all the LCDs shared the same interests distin- guishes this case from prior cases in which the Board has found unlawful picketing and other pressure directed against neutral independent con- tractors, rather than engaged in on their behalf. See, e.g., Teamsters Local 814 (Santini Bros), 208 NLRB 184 (1974), enfd. 546 F.2d 989 (D.C. Cir. 1976), cert. denied 434 U.S. 818 (1977); Musical Artists (Washington School of Ballet), 157 NLRB 735 (1966). 13 341 U.S. at 673. 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD elits' picketing of the Yellow garage housing only stances, we are not persuaded that the General cabs operated by the commission drivers . As noted Counsel has shown that this picketing had the nec- earlier, this conduct occurred on the first morning essary forbidden secondary object.14 of the picketing, lasted for at most 30 minutes, and ceased as soon as the pickets were informed that ORDER no LCDs were present. Thus, the record indicates The complaint is dismissed. that the employee garage was picketed only be- cause the Respondents mistakenly believed ' that 14 See Teamsters Local 100 (Norfolk & Western Railway), 197 NLRB LCDs also used that garage. In these circum- 706 (1971).