International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America, Afl-Cio1

184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL- CIO' and Korean Air Lines, Co., Ltd. and AMR Services Corporation. Cases 29-CC-932 and 29-CC-933 Madeline Balk, Esq. (Seligman & Seligman), for Korean Air Lines, Co. DECISION STATEMENT OF THE CASE July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On August 7, 1987, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel and the Charging Parties filed exceptions and briefs; the Respondent filed cross-exceptions and supporting and answering briefs;2 and Charging Party Korean Air Lines filed an answering brief opposing the Respondent's cross-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 briefs3 and has decided to affirm the judge's rulings, findings, and conclusions4 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. I On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 On December 15, 1987, the Board denied Charging Party Korean Air Lines' motion to strike the Respondent 's cross-exceptions and briefs a Charging Party Korean Air Lines has requested oral argument The request is denied as the record, exceptions , and briefs adequately present the issues and the positions of the parties 4 The General Counsel and Charging Party Korean Air Lines have ex- cepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge 's credibility resolu- tions unless the clear preponderance of all the relevant evidence con- vinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully exam- ined the record and find no basis for reversing the findings in adopting the judge 's conclusion that the Respondent did not violate Sec 8(b)(4) by enmeshing neutral employers covered by the Act in its dispute, we emphasize that, as found by the judge , there is no evidence of conduct other than that incidental to the Respondent 's lawful activity See Electrical Workers IUE Local 761 v NLRB, 366 U S 667 (1961), and International Rice Milling Co Y NLRB, 341 U S 665 (1951) We further disavow any speculation that the telephone call to Emery Air Freight could, in fact, have been placed by Korean Air Lines or AMR Services Corporation Alison Fairbanks, Esq., for the General Counsel. Wilma B. Liebman, Esq., for the Respondent. Reginald E Jones, Esq. (Seforth, Shaw, Fairweather & Geraldson), for AMR Services Corporation. RAYMOND P. GREEN, Administrative Law Judge. These consolidated cases were heard by me on various days in May 1987 The charge in Case 29-CC-932 was filed by Korean Air Lines Co. Ltd. (KAL) on 13 March 1987. The charge in Case 29-CC-933 was filed by AMR Services Corporation (AMR) on 13 March 1987. There- after, a consolidated complaint in these cases was issued by the Regional Director for Region 29 on 7 April 1987. At the hearing the complaint was amended in accord- ance with a notice of motion to amend issued on 4 May 1987. The consolidated complaint as amended makes the fol- lowing contentions: 1. That for a number of years KAL (a earner within the meaning of the Railway Labor Act) subcontracted cargo-handling functions at JFK Airport to a company called Triangle Aviation Services Inc. (Triangle) whose employees were represented for collective-bargaining purposes by Local 851 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Local 851 IBT). There is no dis- pute that Triangle is not a "carrier" within the meaning of the Railway Labor Act (RLA) and is therefore an em- ployer within the meaning of the NLRA.1 2. That the contract between KAL and Triangle ex- pired at midnight on 28 February 1987 whereupon AMR replaced Triangle to provide the cargo-handling func- tions for KAL at its JFK terminal. 3. That at all times matenal the Respondent, the Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen, and helper of America, AFL-CIO has been engaged in pnmary dispute with AMR because that company's employees are represented for collective-bar- gaining purposes by another union, namely, the Trans- port Workers Union. 4. The General Counsel concedes that AMR is a "car- net" within the meaning of the Railway Labor Act 5. That on 26 February 1987, Respondent demanded that KAL renew its contract with Tnangle. 6. That on 26 February 1987 Respondent demanded that AMR employ the employees of Triangle who were about to lose their jobs at KAL's cargo terminal because of KAL's contract with AMR. 7. That on 27 February 1987 and thereafter the Re- spondent has engaged in picketing and handbilling at KAL's JFK cargo terminal with signs and publicity indi- cating that its dispute is with KAL rather than AMR. i Respondent's position relative to Triangle is that because of the degree of control KAL exercised over Triangle's employees at KAL's JFK terminal, KAL and Triangle should be construed as joint employers Respondent also contends that even if Triangle and KAL are found to be separate persons, such a conclusion would not be relevant to the ultimate outcome of this case 290 NLRB No. 26 TEAMSTERS (KOREAN AIR LINES) 8. That on 27 February 1987 employees of Triangle working at KAL's JFK cargo terminal engaged in a work stoppage. 9. That on 12 and 13 March 1987 Respondent picketed KAL's cargo building at Thomas Bradley International Airport in Los Angeles, California. 10 That on various occasions, Respondent by means of picket signs and otherwise, has induced individuals making deliveries to or pickups from KAL not to cross the picket line Such persons would include, inter alia, Emery Air Freight, WTC Air Freight, Airborne Air Freight, East Asia Air Freight, and Kinetsu. There is no dispute about the General Counsel' s assertion that these companies, which are freight forwarders or consolida- tors, are employers within the meaning of the NLRA. The General Counsel's theory is that Respondent is engaged in a dispute with AMR who she alleges is the primary employer. She therefore asserts that because the New York picketing is specifically directed against KAL rather than AMR, such picketing is being directed against a person who is neutral to the primary dispute. She argues that although the picketing is taking place at a common situs (in New York) it is secondary conduct under standards enunciated in Sailors Union (Moore Dry Dock), 92 NLRB 447 (1950). (A fortiori, the picketing at KAL's cargo terminal in Los Angeles would, under this theory, clearly be secondary because AMR does not occupy that site.) Although acknowledging that AMR, the alleged pri- mary employer, is an RLA carrier and that the target of the picketing, KAL, is also an RLA carrier, the General Counsel asserts that the conduct is secondary boycott ac- tivity prohibited by the NLRA because the Respondent was acting on behalf of the employees of Triangle, an employer covered by the NLRA. She also asserts that the Respondent has enmeshed other neutrals who are covered by the NLRA by inducing its employees not to cross the picket line. In the case of Emery Air Freight, it is alleged that Respondent violated the Act by threaten- ing to picket that company unless it honored the picket line at KAL's JFK facility. The Respondent contends that because the "primary" (AMR) is an RLA carrier and because the target of the picketing, KAL, is also an RLA carrier, the picketing is not subject to the NLRA. It asserts that such activity is permissible under the RLA and, therefore, to the extent that drivers employed by freight forwarders and/or con- solidaters chose to honor the picket line, this is merely incidental to lawful picketing activity. Regarding the contention that it threatened to picket Emery Air Freight, this allegation is denied. Based on the entire record in this case, including my observation of the demeanor of the witnesses, and after considering the briefs filed by counsel, I make the fol- lowing FINDINGS OF FACT Before September 1983 KAL had its cargo-handling functions reformed by Trans-Mediterranean Airlines, which employed people represented by Local 851 IBT. In 1983 KAL obtained its own cargo facility at JFK (building 260) and entered into a contract with Triangle 185 to provide certain cargo-handling services.2 At the time of the transfer, KAL requested Triangle to hire about 20 employees of Trans-Mediterranean Airlines, and Triangle hired 12 of these people. Under the terms of the con- tract, which ran until 1985, KAL reimbursed Triangle on a per-pound basis. In September 1985 KAL and Triangle renewed their contract with some modifications. Among the changes was that, during the period of this contract, Triangle was paid on a per-man-hour basis rather than a per-pound basis. This agreement was to remain in effect until mid- night, 28 February 1987.3 In November 1986 KAL decided to solicit bids from various other companies to do its cargo-handling func- tions. On 28 January 1986 KAL awarded this work to AMR and on the same date notified Triangle that its contract would not be renewed. Triangle was therefore to cease operations at KAL's JFK terminal at midnight on 28 February, and AMR was to take over on 1 March. About 20 or 21 February, William Genoese learned that Triangle was to be replaced by AMR. Genoese, in addition to being the secretary-treasurer and principal of- ficer of Local 732 IBT, is also the director of the airline division of the International Brotherhood of Teamsters.' On or about 21 February, Genoese called KAL to get information regarding the change but was unsuccessful. On 24 February he sent a telegram to KAL reading: It has been brought to my attention that more than 60 members of the International Brotherhood of Teamsters employed by Triangle Maintenance will lose their jobs because Korean Airlines has changed contractors at JFK International Airport. Our members have a vested interest in these jobs. They were also members of our organization when your contractor was MTA. This is a request to meet with you as soon as pos- sible to discuss job protection for our workers. Please contact my office immediately to set up a meeting before our members are irreparably hurt 2 Triangle is a wholly independent corporation from KAL and pro- vides a variety of services to a number of other airlines at JFK Its em- ployees are represented by Local 851 IBT in an airportwide bargaining unit There is no evidence to suggest that KAL or any of Triangle's other customers participate in collective bargaining with Local 851 or are involved in grievance-handling functions under Triangle's contract with that union S In a nutshell , Triangle was responsible for putting cargo on KAL's planes for export out of the United States and for unloading KAL's planes for import to the United States In conjunction with this, there ob- viously were a variety of other functions, including warehouse and docu- ment handling Triangle generally had about 60 employees working at KAL's JFK cargo terminal , whereas KAL had about 20 employees di- rectly employed by it * The airline division is a trade division of the IBT, which basically .offers services to various local unions, which for the most part represent employees in the airline industry It is not, however, a separate legal entity of the IBT, does not receive any dues or funding on its own, and does not file any separate forms (LM-2) with the Department of Labor Because it is conceded that the IBT is a labor organization within the meaning of the Act, I rejected Respondent's contention that the airline division of the IBT is not a labor organization within the meaning of Sec 2(5) of the Act See Electrical Workers IBEW (B B McCormick), 150 NLRB 363, 370-372 (1964), affd 350 F 2d 791 (D C Cir 1965) 186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Under fair representation, this organization will take whatever economic action is needed to protect the rights & benefits of our members. We are duty- bound to represent these workers. This is very im- portant and urgent Please contact me so we can set up a meeting. On or about 26 February, Genoese phoned Richard Janisse of AMR and asked if AMR intended to hire the employees of Triangle. Janisse told Genoese that his company had a contract with the Transport Workers Union and that he would have his attorney get back to him. Also on or about 26 February, Genoese's attorney called Cordert Brothers, the law firm representing KAL, and was turned over to Benjamin Seligman who had been retained for labor advice. According to Seligman, Lippman asked for a meeting with KAL concerning the employees in question. He states that when he told Lipp- man that Triangle was the employer, Lippman replied that he wanted the workers to be covered by a Team- sters contract; that it was up to KAL to negotiate a new contract with Triangle; and that if there were no meet- ing, KAL would face problems. Lippman, although con- firming a phone call he had with Seligman, denies that he said that KAL should renegotiate a contract with Tri- angle. He does, however, acknowledge that he said that he wanted the Teamsters to be protected (In either event, I do not think the difference in their testimony is meaningful.)5 On 27 February, before AMR began work for KAL, Respondent commenced picketing at the entrance to KAL's building 260 at JFK. The picket sign used at this time stated: Korean Air Refuses To Honor Teamsters Contract Also a handbill was distributed that read: Korean Air has refused to honor Teamsters Con- tract covering the employees doing Teamsters work at this location. sumed work. Regarding work stoppage, neither the Gen- eral Counsel nor the Charging Parties have offered any evidence to establish that it was caused or induced by the Respondent. Indeed it seems more likely that in an- ticipation of the ending of their work the following day, these employees engaged in a brief wildcat strike. On 28 February Respondent continued picketing at the entrance to building 260 in the manner described above. Also on that date Genoese sent a letter to AMR as fol- lows. Dear Mr. Pasciuto: I'm sorry that we've been missing each other. What I would like to get from you is a little in- formation about AMR Services Corp., a subsidiary of AMR Corp I understand AMR Services Corp. may have en- tered into a labor agreement with a union represent- ing its employees. If so, could you please give me the answers to these questions. 1. What is the name of the union: 2. Where are the workers covered by the con- tract located? 3. What are their job classifications? 4. When was the contract signed. 5. How long does it run? 6. How many workers were in the group when the contract was signed? 7. Was the contract certified by the U.S. Govern- ment? 8 How many workers are not covered by the contract? Most important of all, if there is a contract cov- ering AMR Services Corp. employees, I would ap- preciate it very much if you would send me a copy right away. It is certainly public information and must be filed somewhere with the government. Finally, I would very much appreciate copies of any brochures you may have on the operations service of AMR Services Corp. Thanks for your cooperation. At or about 10 a.m. on 27 February, Genoese called KAL's deputy general manager requesting that KAL meet to discuss KAL's termination of Triangle's con- tract. Shortly thereafter, the employees of Triangle who were employed at building 260 stopped working. When KAL complained to Triangle's terminal manager about this work stoppage, the latter stated that he would take care of the problem. Within about 40 to 50 minutes the work stoppage ended and the Triangle employees re- 6 On 26 February the IBT, by William Genoese, filed an 8(a)(1) and (5) charge against Triangle and KAL However, as it did not produce any supporting evidence, the charge was dismissed The charge alleged The employers have maintained a collective-bargaining relationship with the International Brotherhood of Teamsters as it concerns their Joint employees employed at John F Kennedy International Airport The employers have failed to negotiate a subcontracting of the afore- mentioned work and have failed and refused to apply the terms and conditions of the existing collective bargaining agreement and to rec- ognize the representative of the aforementioned employees at John F Kennedy International Airport Additionally, on 28 February Genoese wrote to KAL as follows: Dear Mr. Kim: The International Brotherhood of Teamsters has filed unfair labor practice charges against Korean Airlines at the National Labor Relations Board office at 16 Court Street in Brooklyn, New York. The charges, naming Korean Airlines as a co-em- ployer, involve the fact that more than 60 of our members at Triangle Maintenance will lose their jobs because you have changed contractors at JFK Airport. I sent you a mailgram a week ago, asking that you contact me immediately so that we could set up a meeting to discuss job protection for our mem- bers. I later spoke to some Korean Airlines execu- tives on the phone, but you have ducked the issue of a meeting. TEAMSTERS (KOREAN AIR LINES) This is my second notice to you, in writing, that we must have a meeting before our members are ir- reparably hurt. Please contact me immediately at my office (212/686-8135). Under fair representation, we are duty-bound to protect the rights of our members We will do whatever is necessary to carry out this responsibil- ity. We need your cooperation. At midnight 28 February, Triangle ceased working at building 260 and AMR took over. In this respect AMR clearly is a separate corporation from KAL, engaged by the latter to perform cargo-handling functions as a sub- contractor. The Respondent has not taken the position that KAL and AMR are joint employers regarding AMR's employees at building 260, and I therefore shall conclude that they are separate entities in that regard. As noted previously, the General Counsel concedes that AMR, which is an affiliated company with American Airlines, is a "carrier" within the meaning of the Rail- way Labor Act. Also, as noted above, AMR has a col- lective-bargaining relationship with the Transport Work- ers Union covering, inter alia, the workers employed by it at building 260. Since about 9 March, Respondent has continuously picketed the entrance of building 260 using a variety of picket signs. In addition to the sign already described, one of the signs read: Teamsters Airline Division Korean Air Unfair Fired Union Workers Wanted Jobs Back Another sign read: No Teamsters Should Cross This Line Call Your Local Union On March 2, Respondent distributed a handbill to people working at JFK and away from the site of the picketing. This read: AMR Corp., the holding company which owns American Airlines and other subsidiaries, has gotten into bed with the Transport Workers Union and made a deal which threatens the jobs of workers throughout the airline industry. The agreement enables AMR Services to make low-ball bids to airlines and airports that want to contract out their work. The enclosed article from Aviation Daily explains some of the operations of AMR Services. AMR Services can provide cheap labor in such areas as ramp services, cargo and clerical operations and Skycap work. AMR Services can do this because it starts its workers at $4 an hour with no hospitalization bene- fits, only five holidays and very limited vacations. 187 All this is permitted under the TWU's top-down contract. We are getting a copy of this contract, and we intended to expose this cozy arrangement. The TWU is a bad organization, and Vice Presi- dent John Kerrigan was part of the whole deal with AMR We believe AMR Services will be going after ramp service work throughout the country. This could mean that thousands of teamsters and mem- bers of other unions would find their jobs in jeop- ardy. To protect the rights of all airline workers, we must start organizing AMR Services. Otherwise, AMR Services and the TWU can bring all airline workers down. The agreement between the TWU and AMR Services runs from February 1984 through Febru- ary 1988. It is a disgrace to the labor movement. For 2 days, 12 and 13 March, the Respondent picketed KAL's cargo terminal at Thomas Bradley International Airport in Los Angeles, California. The picket sign read- Teamsters Union Korean Air Lines Unfair Fired Workers Want To Go Back to Work In relation to this picketing, a security guard at the ter- minal was told by one of the pickets that the picketing related to a dispute at JFK. It is noted that in Los Ange- les, KAL uses a company called ARA Ground Services rather than AMR to perform the cargo-handling func- tions.6 On 30 March the Regional Director for Region 29, based on the instant charges, filed in the United States District Court, Eastern District of New York, a petition under Section 10(1) of the Act seeking to enjoin Re- spondent's picketing. On 30 March, Judge Eugene H. Nickerson denied the injunction holding, in substance, that the matter was within the jurisdiction of the Rail- way Labor Act and not the National Labor Relations Act. The Regional Director's request for reargument was denied on 28 April.7 The General Counsel presented a witness , James Heth- erington, a manager of Emery Air Freight, who testified that someone who identified himself as William Genoese called him on 6 April. He states that this person said that 6 It is not clear whether ARA Ground Services would be classified as a "carrier" within the meaning of the RLA in connection with its serv- ices for KAL at Los Angeles I note that in a decision dated 17 April 1986, the National Mediation Board concluded that ARA fell wrthm the jurisdiction of the RLA concerning services one of its wholly owned subsidiaries performed for an airline at Baltimore-Washington Internation- al Airport ARA Ground Senices (BWI), 13 NMB 175 (1986) 7 Subsequent to the 10(l) proceeding, AMR sought an injunction claim- ing that Respondent's picketing was for recognition and therefore not subject to the injunction prohibitions of the Norris La Guardia Act Judge Nickerson also heard that case and concluded that because the picketing did not have any "present recogmtional" intent and because the picketing did not in any other manner violate the RLA, no injunction should issue AMR Services Corp v Teamsters, 658 F Supp 259 (D C N Y 1987) 188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he saw an Emery truck at building 260 and that if the truck was not removed, a picket line would be put up in front of Emery or that Emery's employees would be pulled off the job. In fact, no such picketing or strike ever occurred at Emery. Genoese denies that he ever spoke to Hetherington and specifically denies making any threats to Emery Further, the Respondent contends, correctly I think, that the evidence is insufficient to establish, pursuant to sec- tion 901 of the Federal Rules of Evidence, the identity of the caller Thus, unlike evidence to establish the identity of a caller, through the testimony of a person who dials his or her correct number (i e , an outgoing call) it is not sufficient to establish the identity of a caller merely by the caller's self-identification to the witness (i.e , an in- coming call) U.S. v. Benjamin , 328 F.2d 854, 861 fn 3 (2d Cir. 1964), cert. denied 377 U.S 993 (1964) See Wigmore Evidence, subsec. 2155(c). Thus, in U.S. v. Register, 496 F.2d 1072, 1077 (5th Cir. 1974), the court stated, "[A] telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentica- tion of the call as in fact coming from X." In the present case Hetherington had no previous or subsequent contact with Genoese and, therefore, not being familiar with his voice, was unable to identify Genoese as the caller. Moreover, the scenario that the caller described (threatened picketing or strike of Emery if the truck was not removed from building 260) never came to pass. Pursuant to rule 901 the identity of a telephone caller may be shown by circumstantial evidence in the absence of the witnesses' ability to identify the caller's voice See Federal Rules on Evidence, Advisory Committee Note, and cases cited there Nevertheless, I am persuaded that the degree of evidence necessary to establish Genoese as the caller in the present case is simply not sufficient. For ex- ample, in Van Riper v. U.S., 13 F.2d 961, 968 (2d Cir. 1926), Judge Learned Hand writing for the court stated: If, for example, a man were to write a letter, prop- erly addressed to another, and were to receive a telephone call in answer, professing to come from the addressee, and showing acquaintance with the contents of the letter, it would in our judgement be good enough identification of the speaker to allow in the proof, though in the end, or course, the issue of identity would be for the jury. This is the reason- ing on which a complete correspondence is admit- ted, once its origin is established, so long as it con- tinues to be consecutive in substance. The advisory committee's note to the Federal Rules of Evidence, at example 4, states that "a document or tele- phone conversation may be shown to have emanated from a person by virtue of its disclosing information of facts known peculiarly to him."8 In the present case, however, it was not shown that the caller, in disclosing the presence of Emery's truck at KAL's terminal, was dislcosing facts known peculiarly to Genoese The fact of the truck's presence at building 260 may well have been known to the pickets, but it was not known to them exclusively The fact was known to KAL, to KAL's guard service, and to AMR Although I am not suggest- ing that any person employed by the latter entities made the phone call to Hetherington using Genoese' s name, it remains that the fact disclosed was not one known exclu- sively by Genoese as the alleged caller 9 On 9 April 1987 Jackie Presser, president of the IBT, sent a mailgram to KAL as follows On behalf of the nearly two million members of the International Brotherhood of Teamsters, I am writing to express our outrage and strong protest over the recent actions taken by your organization aimed at circumventing the fair and long-established collective bargainging system in the United States. Your actions are a bad reflection not only on the re- lations you have with your employees, but on your entire country. As your are well aware, Korean Airlines, in col- lusion with AMR Services in the United States, had AMR Services enter into a "top-down" contract with the Transport Workers Union. This agreement allowed your airline to eliminate those employees who are paid the prevailing wage and represented by the Teamsters Union, under contract with Trian- gle Maintenace More importantly, it allowed your airline to subcontract with AMR Services, whose employees are represented under the "top-down" agreement, and paid substandard wages. This prac- tice has serious implications for the U S labor movement and constitutes unfair labor practices. of the first degree This organization has made numerous unsuccess- ful attempts to meet with officials of your airline. We are willing to discuss this situation, and believe such a meeting would be the first step towards an equitable solution I look forward to hearing from you. On the same date Presser sent a somewhat similar mailgram to the Federation of Korean Trade Union as follows: With our unions sharing strong ties of friendship, I have taken the liberty of writing you to solicit your support on a situation which affects many Teamster members and could have a negative impact on the entire U.S. Labor movement. 8 If a caller (X) asked the witness , for example, if he had received the letter the caller had sent regarding subject (Y) which letter was shown to have been sent by the caller , then the witness testimony clearly would be sufficient to identify the caller as Mr X See, for example Jarvis v US, 90 F2d 243, 245 (1st Cir 1937), US v Fassoulis, 445 F2d 13 (2d Cir 1971) 9 In a sense KAL and AMR would have been the beneficiaries of such a call Thus, only 6 days before the call was made, Judge Nickerson denied the 10(1) petition seeking to enjoin the picketing on the grounds that the parties involved were all subject to the Railway Labor Act and not the National Labor Relations Act It would therefore have been in the Charging Parties' interests to establish a threat of picketing directed to an employer who was within the NLRA's jurisdiction TEAMSTERS (KOREAN AIR LINES) 189 Korean Airlines Co., Ltd. had a contract for three years with Triangle Aviation Services, Inc. for Triangle to provide various jobs in New York and California. All these employees were Team- sters. In February, 1987, Korean Airlines, in collu- sion with AMR Services (a subsidiary of AMR Corporation , which is the parent company of Amer- ican Airlines) entered into a "top-down" contract with the Transport Workers Union (AFL-CIO). A "top-down" deal, as it is referred to in the U S. labor movement , is an agreement between a labor union and management that all employees of the company will be included in the collective bargain- ing agreement. AMR Services had no real employees at the time this agreement was made with the Transport Work- ers Union . The contract , which provides for grossly inferior wages and benefits in comparison to the rest of the U.S. unionized airline workforce , was never voted on by a single member or ratified . It was de- signed solely as a vehicle for Korean Airlines to eliminate its higher-costing teamsters employed by Triangle and replace them with Transport Workers Union members on a substandard scale. As expect- ed, Korean Airlines recently cancelled its contract with Triangle Maintenance and contracted with AMR Services to provide the same work that Tri- angle had previously provided . This caused the senseless loss of 60 Teamster jobs. This shameful contract between Korean Airlines' subcontractor, AMR Services, and the Transport Workers Union allows TWU to steal other unions' members while it simultaneously benefits Korean Airlines, allowing it to undercut their operating costs by circumventing the collective bargaining system . Korean Airlines has refused to meet with Teamster officials , and also tried unsuccessfully to stop Teamster members from picketing at the job sites. United States Courts have ruled against the airline on this matter and the Teamsters are continu- ing to picket. We have contacted Korea's ambassador to the United States, Kyung-Won Kim, and Korean Labor Minister Lee Hu Ki . As a mutual friend of our union and in the name of labor solidarity , I would certainly appreciate any assistance you could give on this matter. Analysis Section 8(b)(4)(i) and (ii)(B) of the National Labor Re- lations Act was designed to prohibit secondary boy- cotts.1 ° This provision of the Act prohibits certain types 10 Sec 8(b)(4)(i) and (n)(B) in pertinent part reads as follows 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage any individual em- ployed by any person engaged in commerce or in an industry affect- ing 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 (u) threaten , coerce , or restrain any of conduct by labor organizations having an object of enmeshing neutral persons in disputes not their own. NLRB Y. Denver Building Council, 341 U.S. 675, 692 (1951)." Setting aside for the moment the contentions whether this dispute falls within the parameters of the NLRA or the RLA, the General Counsel's theory is esssentially as follows. In numerous cases when a union has protested the substitution of a subcontractor whose employees were represented by it with a subcontractor whose em- ployees are either unrepresented or represented by an- other union, the Board has concluded that the Union's primary dispute has been with the new subcontractor. See Teamsters Local 85 (William Volker), 253 NLRB 632 (1980); Service Employees Local 73 (Andy Frain), 239 NLRB 295 (1978); Teamsters Local 732 (Servair Mainte- nance), 229 NLRB 392 (1977). Thus, under this line of cases, the General Counsel is correct in identifying, under NLRA precedent, AMR as being a person with whom the Respondent has a primary dispute i 2 More- over under the same line of precedent the General Coun- sel is probably correct in identifying KAL as being a secondary or neutral person 13 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, han- dling, transporting , or otherwise dealing in the products of any other producer, processor, or manufacture, or to cease doing business with any other person, or forcing or requiring any other employer to rec- ognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 Provided, That nothing contained in this clause (B) shall be construed to make unlawful , where not otherwise unlawful, any primary strike or primary picketing l i In NLRB v Denver Building Trades Council, supra, the Union con- tended that the district court's conclusion regarding jurisdiction in the 10(1) proceeding for a preliminary injunction was res judicata about the subsequent Board proceedings on the merits The court rejected this con- tention in that case as I reject the Respondent 's similar contention in this case 12 Because of the documentary evidence in this case, there is little room for dispute about the fact that the Respondent objects to AMR's alleged substandard contract with another union 13 KAL would only be considered as a "primary" if it is deemed to have been a joint employer with Triangle of the cargo-handling person- nel doing work at building 260 If that were the case, the Respondent could argue that KAL is a person with whom it has a primary dispute because KAL discharged the employees who were represented by a local of the Respondent Such a theory would , however, be diffcult to sustain because a joint-employer relationship is not easily established Thus, in Cabot Corp, 223 NLRB 1388 (1976), the Board held that the determining factors for showing a'joint-employer relationship 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 contractor 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 See also Clinton's Ditch Cooperative Co v NLRB, 778 F 2d 132 (2d Cir 1985), cert denied 107 S Ct 67 (1986), Squibb-Beechnut v NLRB, 443 F 2d 1066 (6th Cir 1971), Laerco Transportation, 269 NLRB 324 (1984), Teamsters Local 85, supra at 635, Service Employees Local 73, supra at 305 Teamsters Local 732, supra at 402-403 190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When, as here, a primary and a secondary occupy a common site (at least at JFK airport), the Board has es- tablished certain standards for determining whether pick- eting such a site has an object that would be prohibited or permitted by the secondary boycott provisions of the NLRA. In Sailors Union (Moore Dry Dock), 92 NLRB 547, 549 (1950), the Board stated: When a secondary employer is harboring the situs of a dispute between the union and a primary employer, the right of neither the union to picket nor the secondary employer to be free from picket- ing can be absolute. The enmeshing of premises and situs qualifies both rights. In the kind of situation that exists in this case, we believe that picketing of the premises of secondary employer is primary if it meets the following conditions: (a) the picketing is strictly limited to times when the situs of dispute is located on the secondary employer's premises; (b) at the time of the picketing the primary employer is engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the primary employ- er. i4 Therefore, assuming NLRA jurisdiction in this case, it would be clear that the picketing at JFK would have a secondary object under the Moore Dry Dock standards because the picket signs identify KAL as the primary rather than AMR, which under the preceding analysis would be the proper primary. Also, assuming that AMR is the primary and that KAL is a secondary, the 2 days of picketing of KAL at Los Angeles would similarly be secondary activity because KAL is named on the picket signs and because AMR, the primary, is not at that loca- tion. The problem faced by the General Counsel and the Charging Parties is that under their theory of this case, the primary (AMR) and the target of the Union's picket- ing (KAL) 15 are both "carriers" within the meaning of the Railway Labor Act. And under that Act, secondary boycotts are not illegal In Burlington Northern RR Co. v. Brotherhood of Maintenance of Way Employees, 125 LRRM 2073, (1987) the union, which was engaged in a primary strike against Maine Central, expanded its pick- eting activity to include a variety of other railroads in- cluding Burlington Northern that interconnected with Maine Central. These "secondary" railroads sought in- junctive relief arguing that the Norris La Guardia Act's prohibition on Federal courts from issuing injunctions in labor disputes did not apply because secondary boycotts were contrary to the intentions of the Railway Labor Act. Justice Brennan on behalf of the court stated (125 LRRM at 2080-2082): Indeed, this Court has already refused to find in the silence of the RLA an intent to prohibit second- ary picketing. In Trainmen v. Jacksonville Terminal Co., supra, we held that state courts may not enjoin secondary picketing in a railway dispute after par- ties exhaust the RLA's procedures. We noted that Congress had not provided the courts with the standards needed to distinguish primary from sec- ondary picketing, and that "parties who have un- successfully exhausted the Railway Labor Act's procedures for resolution of a major dispute . . . [may] employ the ful range of whatever peaceful economic power they can muster, so long as its use conflicts with no other obligation imposed by feder- al law." 394 U.S. at 392. We concluded that, in rail- way disputes, "until Congress acts, picketing- whether characterized as primary or secondary- must be deemed conduct protected against state proscription." Id., at 392-393. Petitioners next maintain that when, as here, the RLA does not provide a clear answer to a particu- lar problem, this Court has looked to the National Labor Relations Act (NLRA) "for assistance in construing" the RLA. Trainmen v. Jacksonville Ter- minal Co , supra, at 383. Petitioners argue that the NLRA embodies Congress' view that secondary ac- tivity is an unfair labor practice, and that this view should govern our construction of the RLA. The RLA does not contain a "sweeping prohibi- tion" of secondary activity; instead it "describes and condemns specific union conduct directed to specif- ic objectives " Carpenters v. NLRB, 357 U.S. 93, 98, 42 LRRM 2243 (1958). Moreover, the NLRA does not permit employers to seek injunctions against the activity that it does prohibit. It grants to the Na- tional Labor Relations Board (NLRB) exclusive au- thority to seek injunctions against some forms of secondary activity. 29 U S.C. § 158(b)(4), 160(j), 160(1). Thus, Congressional policy, as expressed in the NLRA, remains that employers are not permit- ted to obtain injunctions of secondary activity. Fi- nally, it is significant that Congress excluded rail carriers and rail employees from the coverage of the NLRA' even the NLRB has no authority to seek injunctions in railway disputes. §§ 152(2), 152(3). We conclude that the NLRA could not make clearer Congress' intent to prohibit federal courts from issuing the injunctions sought in this case. 14 It is recognized that these standards should not be mechanically or inflexibly applied Electrical Workers Local 861 (Plauche Electric), 135 NLRB 250 (1962) 15 The General Counsel and the Charging Parties contend that there were a number of other neutral NLRA employers who were enmeshed in the dispute, these being freight forwarders and consolidaters who made deliveries to or pickups from KAL's cargo terminal Yet except for some evidence that the drivers were merely asked to honor the picket line, there is no evidence of any conduct within the meaning of Sec 8(b)(4)(i) or (ii) vis a vis these employers Turning to this case, petitioners argue that a ban on secondary picketing may be inferred from the general language of Subsection 2 First. Section 2 First states that. It shall be the duty of all carriers, their offi- cers, agents, and employees to exert every rea- sonable effort to make and maintain agreements TEAMSTERS (KOREAN AIR LINES) concerning rates of pay, rules, and working con- ditions, and to settle all disputes, whether arising out of the.application of such agreements or oth- erwise, in order to avoid any interruption to commerce or to the operation of ay carrier grow- ing out of any dispute between the carrier and the employees thereof. 45 U.S.C. § 152 First. Petitioners place particular emphasis on the duty this section places on employees to attempt to settle disputes and thereby avoid any interruption to inter- state commerce. This duty, petitioners correctly note, is consistent with the major purpose of Con- gress in passing the RLA: "to prevent, if possible, wasteful strikes and interruptions of interstate com- merce" ... Petitioners conclude that construing the RLA to allow unions to resort to secondary ac- tivity is manifestly inconsistent with the major pur- pose of the RLA. Although we agree with petitioners that the pri- mary goal of the RLA is to settle strikes and avoid interruptions to commerce, we see nothing in the RLA to indicate that Congress intended to permit federal courts to enjoin secondary activity as a means toward that end. An injunction does not settle a dispute-it simply disables one of the par- ties. Moreover, "in view of the interests of both parties in avoiding a strike," Virginian R. Co., 300 U.S., at 552, the availability of such self-help meas- ures as secondary picketing may increase the effec- tiveness of the RLA in settling major disputes by creating an incentive for the parties to settle prior to exhaustion of the statutory procedures: Furthermore, as this case illustrates, § 10 of the RLA provides a ready mechanism for the Execu- tive Branch to intervene and interrupt any self-help measures by invoking an Emergency Board and thereby imposing at a minimum a 60-day cooling-off period. If the Board's recommendations are not ini- tially accepted by the parties. Congress has the power to enforce the Board's recommendation by statute, as it has done here. Allowing secondary picketing in the self helped period is thus not incon- sistent with the structure or purpose of the Act, and may in fact increase the likelihood of settlement prior to self-help. This therefore not a case in which the "the scheme of the Railway Labor Act could not begin to work without judicial involvement." Chicago & North Western, supra, at 595 (Brennan, J. dissenting). While opinions regarding the RLA's success in meeting its goals have varied over time, it does appear that under the kLA labor and management have been able to resolve most conflicts without resort to secondary picketing. We decline, at this advanced stage of the RLA's development, to find in it an implied limit on a union's resort to second- ary activity. Instead, "if Congress should now find that abuses in the nature of secondary activities have arisen in the railroad industry :. . it is for the Congress, and not the Courts, to strike the balance `between the uncontrolled power of management 191 and labor to further their respective interest."' Trainmen v. Jacksonville Terminal Co., 394 U.S., at 392. The NLRB can assert jurisdiction and find a violation of the secondary boycott provisions' of the NLRA when the primary is an employer within the meaning of the NLRA, but when the secondary is either a railroad or an airline, (i.e., a carrier within the meaning of the RLA). Steelworkers Y. NLRB, 376 U.S. 492 (1964).18 Converse- ly, the General Counsel argues that when the primary is a carrier within the meaning of the RLA and the second- ary is an NLRA employer, the secondary boycott provi- sions of the NLRA will also prevail. In this respect she relies on Marriott In-Flite Services v. Transport Workers Local 504, 557 F.2d 295 (2d Cir. 1977). In that case the union had a primary dispute with an airline (KLM) re- garding KLM's discontinuance of meal preparations by its own employees who were represented by Local 504 TWU and KLM's subcontracting of such work to Marri- ott which was an NLRA employer. The union picketed Marriott. In the face of this activity, an action was brought, pursuant to Section 303 of the NLRA which permits an employer to sue a union for damages for ac- tivity which would be violative of Section 8(b)(4) of the Act. The court denied the Union's Motion for Summary Judgment, which was based on the union's contention that the RLA rather than the NLRA was applicable. The court in ordering the case remanded for trial stated: Appellees rely heavily on the opinion of the Su- preme Court in Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S Ct. 1109, 22 L. Ed. 2d 344 (1969). This reliance is mis- placed. The dispute in Jacksonville Terminal was over the validity of a Florida law banning second- ary picketing The parties were two railroads and a railway union. The Court held that the Florida stat- ute was invalid because federal labor law had pre- empted the field. The Court explicily did not decide whether the activity at stake was "primary" or "secondary," or whether it was protected by the RLA. The Jacksonville Terminal opinion, moreover, was careful to distinguish the case from one very like the present appeal: Whatever might be said where railway organi- zations act as agents for, or as joint ventures with unions subject to the NLRA, see International Brotherhood of Electrical Workers v. NLRB, 122 U.S. App. D.C. 8, 350 F.2d 791 (1965); or where railway unions are engaged in a dispute on behalf of their nonrail employees; or where a rail carrier seeks a remedy against the conduct of nonrailway employees, see United Steelworkers v. NLRB, 376 U.S. 492, 501 (1964); Teamsters Union v. New York, N. H. & H. R. Co., 350 U.S. 155 [76 S. Ct. 16 See also Service Employees Local 73, supra, Teamsters Local 732, supra 192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 100 L.Ed. 166] (1956), none of these is this case. This is a railway labor dispute, pure and simple. 394 U.S. at 377 (emphasis added). Thus, we con- clude that the decision in Jacksonville Terminal does not support the result reached in the district court below. Despite the above-cited case, neither the General Counsel nor the Charging Parties have cited any prece- dent holding that when the primary is an RLA employer and when the secondary activity is directed against an RLA employer, the provisions of the NLRA would come into effect. Indeed to reach such a conclusion would on the face of it be inconsistent with the Supreme Court's holding in Burlington Northern. In making her argument, the General Counsel relies almost exclusively on dicta in Jacksonville Terminal where the court said that its conclusion that an injunc- tion was precluded, might not apply to a situation "where railway unions are engaged in a dispute on behalf of their nonrailway employees." As such the Gen- eral Counsel argues that because there is evidence show- ing that the Respondent was acting on behalf of Trian- gles employees and because those employees (unlike the employees of KAL or AMR) were at the time of their work at building 260, nonrailway employees, the holding of Jacksonville Terminal and Burlington Northern would not apply. I disagree. For one thing Triangle, having been replaced by KAL on 28 February 1987, no longer is involved in this case and under the General Counsel's theory is not the pri- mary employer. Thus the language in Jacksonville Termi- nal describing a union acting on behalf of its nonrailway employees implies to me that it is acting on behalf of such employees vis a vis a primary employer Indeed none of the cases cited in the quoted paragraph of Jack- sonville Terminal involved situations in which both the primary and the secondary employer/persons were carri- ers within the meaning of the RLA. In the present case the primary is AMR and the only person against whom "secondary" activity has been di- rected is KAL. Yet because both of these companies are "carriers" within the meaning of the RLA the secondary conduct of picketing KAL at JFK or at Thomas Bradley Airport in Los Angeles is lawful under the holding of Burlington Northern. Thus, under the aforesaid case, the picketing of KAL is legal activity and would in a sense be legally equivalent to primary picketing. Therefore, if picketing of KAL by the Respondent is legal conduct, the fact that the pickets ask truckdrivers employed by persons making deliveries to or from KAL to honor the picket line must be construed as conduct incidental to the Respondent's lawful activity. Accordingly, being merely inducements to honor a legal picket line at KAL's premises I cannot see how such inducements would constitute unlawful secondary activity against other persons within the meaning of Section 8(b)(4)(i)(B) of the Act. NLRB v. International Rice Milling, 341 U.S. 665 (1951); Newspaper & Mail Deliverers (Interborough News), 90 NLRB 2135 (1950). Finally, because I have already concluded that the evi- dence concerning the alleged threat to Emery Air Freight has not been shown to have originated from the Respondent, I shall recommend that this allegation also be dismissed." CONCLUSIONS OF LAW 1. The Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The Charging Parties, Korean Airlines Co. Ltd. and AMR Services Corporation are "barriers" within the meaning of the Railway Labor Act. 3 The Respondent's picketing of Korean Airlines is lawful conduct under the decision in Burlington Northern RR Co. v. Brotherhood of Maintenance of Way Employees, 125 LRRM 2073 (1987). 4 Appeals to individuals engaged by persons making deliveries to or from Korean Airlines not to cross the aforesaid picket lines do not constitute unlawful second- ary boycott activity. 5. The General Counsel has failed to establish by com- petent evidence that the Respondent has engaged in any conduct prohibited by Section 8(b)(4)(i) or (ii)(B) against Emery Air Freight or Triangle Aviation Services Inc. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'a ORDER On the entire record in this case, I recommend that this consolidated complaint be dismissed. i7 As noted previously, although Triangle is an NLRA employer, and would, under the General Counsel's theory be secondary, there is no evi- dence that the Respondent induced or encouraged individuals employed by this company to engage in a strike or work stoppage within the mean- ing of Sec 8(b)(4)(i) of the Act 18 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