General Drivers, Local 554

GENERAL DRIVERS, LOCAL 554 General Drivers & Helpers Union, Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America and Prairie Ford Truck Sales. Case 17-CC-817 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBERS JENKINS AND PENELI.O On July 23, 1980, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Coun- sel filed a brief in answer to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, General Driv- ers & Helpers Union, Local No. 554, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Omaha, Nebraska, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent has ecepted to certain credibility findings made hby the Administrative l.aw Judge. It is the Board's established polic> rnot to overrule an administrati e law judges, resolutions with respect to credl- bility unless the clear preponderance of all of the relevant evidence c on- vinces us that the resolutions arc incorrect. Staundard Dr Hll /IPrduct, Inc., 91 NLRH 544 (1950). enfd 188 F.2d 362 (3d Cir 1951). We hac carefully examined the record and find no basis for reering his findings We have modified the Administratvlse La, Judge's Iotlee to conforn to his recommended Order 253 NLRB No. 6 APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAI. LABOR RELATIONS BOARI) An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE Wl. l NOT picket Prairie Ford Truck Sales in connection with its labor dispute with Sullivan Transfer Co. at any time when Sulli- van Transfer Co. is not engaged in its primary business at the Prairie Ford Truck Sales facili- ty. WE- WI.I. NOT induce or encourage any indi- vidual employed by Prairie Ford Truck Sales, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or refusal in the course of his em- ployment to use, manufacture, process, trans- port, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services; or threaten, coerce, or restrain the said persons, or any other person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring Prairie Ford Truck Sales to cease doing business with Sullivan Transfer Co. and/or forcing and re- quiring other persons engaged in commerce or in industries affecting commerce to cease doing business with Sullivan Transfer Co. GENERAI DRIVERS & HELPERS UNION, LOCA NO. 554, AFFIIIATED WITH INTERNATIONAl. BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA DECISION S ATMENTI 01F THE CASE JAMES L. ROSi, Administrative Law Judge: This matter was heard before me on April 24, 1980. at Omaha, Nebraska, on the General Counsel's complaint which alleged that on November 15 and November 23, 1979,.' the Respondent engaged in picketing at the prem- ises of the Charging Party in violation of Section 8(b)(4)(i) and (ii)(B) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq. All dates are in 1979 unless otherwise indicated DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD While admitting the picketing as alleged, the Respond- ent contends that it did not violate the Act because: (a) the Charging Party had allied itself with the employer with which the Respondent has a primary labor dispute: (b) that at all times the picketing was primary and con- formed to the Board's standards for common situs picket- ing; and (c) in any event the picketing on the two dates in question was de minimis. The Respondent further moved to dismiss the com- plaint on grounds that William T. Six, the president of the Charging Party, did not respond to a subpoena ad tes- tificandum appropriately served on him. The evidence establishes that in fact Six was personally served with a subpoena ad testificandum on April 17, 1980, and was at the same time served with a subpoena duces ecurn and also was presented with two checks for witness' fees. Six, however, did not appear. At the time of the hearing of this matter, according to his counsel, he was in Las Vegas, Nevada. Nor did Six advise counsel that he had been served a subpoena ad testificandum. Six made no motion to quash the subpena or to postpone hearing, though it is noted that the complaint issued on December 27, 1979, setting the hearing date for April 24, 1980. In short, there was no reason advanced by counsel for the Charging Party why Six failed to respond to the subpena and appear as required. Certainly the Respondent had a right to have the subpena honored and to examine under oath the president of the Charging Party, particularly in- asmuch as one of the substantive issues in this matter concerns the alleged ally status of the Charging Party with the primary employer. At best, it must be conclud- ed that Six was remiss in his duty to the process, and, were this matter simply between Respondent and the Charging Party, dismissal would seem appropriate. How- ever, I deny the Respondent's motion to dismiss because there are matters of public policy being litigated here and the public interest would not be served by dismissing the case because a principal of one of the parties did not respond to a subpena. While the Respondent does have a right to have the subpena honored and to examine Six, I do not believe that the Respondent has in any way been denied due process of law. The Respondent could have sought sub- pena enforcement, but did not. The Respondent could have sought to introduce secondary evidence, and I will make appropriate adverse inferences based upon Six's failure to appear. The documents subpoenaed by the Re- spondent were in fact produced. Other officers of the Charging Party were present and, in fact, agents of the Charging Party did testify in this matter. Thus, I believe the Respondent has been given every reasonable oppor- tunity to litigate fully the issues it raised in defense. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Charging Party, Prairie Ford Truck Sales, is a Nebraska corporation engaged in the retail sale and serv- ice of trucks at its facility in Omaha, Nebraska. In the course and conduct of its business within the State of Nebraska, it annually purchases goods and services valued in excess of $50,000, directly from sources located outside the State of Nebraska, and its annual gross volume of business at the facility exceeds 5(X),000. Sullivan Transfer Co. is engaged in the intrastate trans- portation of goods and operates terminals in Omaha, Lin- coln, and Grand Island, Nebraska. Prairie Ford is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Prairie Ford and Sullivan are, and at all times material herein have been, persons engaged in commerce or in an industry affecting commerce within the meaning of Sec- tion 8(b)(4)(i) and (ii)(B) of the Act. II. II11 1.ABOR ORGANIZA'IION INVO[ VILD The Respondent, General Drivers & Helpers Union, Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (herein the Union), is admitted to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. III. IHtIl A.tU(;Il)UNAIR l ABOR PRAC I CIS For some years, the Union has represented Sullivan's drivers and warehouse employees at its Omaha, Lincoln, and Grand Island terminals. They have had a series of collective-bargaining agreements, the most recent of which expired on March 31. Unable to reach a new agreement, on September 25 the nion commenced an economic strike and began picketing Sullivan at the three terminals as well as ambulatory picketing. This matter concerns picketing at the Prairie Ford fa- cility for 20 to 30 minutes on the mornings of November 15 and 23. While the parties disagree on precisely when the Respondent's pickets arrived and how long they stayed, there is no real dispute that in fact picketing did occur at Prairie Ford at a time when no Sullivan em- ployees were present or engaged in any business function of Sullivan at that facility. At the time of the picketing, however, there were Sullivan trucks at Prairie Ford which were there, according to the credible evidence, for the purpose of being repaired and serviced. In connection with its Omaha operation, for years Sul- livan has relied principally on Prairie Ford to service and repair its vehicles, though two other dealerships are occasionally used. In emergencies, Prairie Ford employ- ees will make service calls at the Sullivan facility; how- ever, all of the maintenance and repair work is per- formed at the Prairie Ford facility. Sullivan has no physical capacity to perform even the most minor maintenance and at Omaha (or Grand Island) has never had a mechanic or maintenance employee. Until his retirement about 2 years ago, Sullivan did employ one mechanic at the Lincoln facility. On November 14, a Sullivan truck was taken to Prairie Ford for repairs which were completed by the morning of November 15. In their cruising, a crew of ambulatory pickets saw the Sullivan truck on the Prairie Ford lot, radioed to see if they should picket. and were told to do 2 (ENIRAI. I)RIVERS, I()CAI 554 so. When picketing began, there were no Sullih an em- ployees present at Prairie Ford, nor had any been there since the truck had been delivered Within a short time. a Sullivan employee did arrive at the Prairie Ford site and drove the truck off. The picketing thenl ceased. Similarly, two Sullivan trucks were on the Prairie Ford premises on November 23 at the time of the picket- ing, hut there were no Sullivan employees present. Tlhe picketing ceased that day when the pickets were arrested and taken to the police station. (They were released without being charged or booked.) There is no evidence of any business relationship be- tw een Prairie Ford and Sullivan other than that de- scribed; namely, Sullivan is a regular customer of Prairie Ford, and that Prairie Ford does work on Sulli' an's equipment which Sullivan does not have the capacit) to perform for itself. There is no contractual relationship between the two. The work which Prairie Ford does for Sullivan is on an ud hoc, though regular. basis There is no indication that there were any Sullivan ve- hicles on the Prairie Ford premises at any time material hereto, and particularly November 15 or 23, other than those which were there to be repaired. Thus, while the Respondent argues that Sullivan was using the Prairie Ford facility as an ancillary terminal, there is no ci- dence to support such a conclusion. Analysis and Concluding Findings 1. he ally defense The Respondent principally contends that Prairie Ford and Sullivan are allies in that Prairie Ford did work which, but for the strike, employees of Sulli an would do. The record, however, is clear that, for at least 2 years. Sullivan has employed no one capable of perform- ing even minor maintenanlce work much less major re- pairs and, in any eveent. Sullivan never has employed a mechanic at the Omaha facility. While repair ad mainte- nance of vehicles is certainly a necessary part of its busi- ness operation, such is riot a function ever performed by Sullivan employees. Thus, it cannot reasonabl be con- cluded that, by doing repair and mainltenance work as it had done in the past, Prairie Ford engaged in struck work, or by continuing to do business it became Sulli- van's ally in the labor dispute. Prairie Ford did not per- form struck work and was, at all times, a neutral employ- er. W stern Stute Regional Council No. 3 International Woodworkers of 4inmerica. .1AFL-CIO, t al. (Priest Logging, Inc.), 137 NLRB 352 (1962); cf. Graphic A.rr Internation- al Union. AFL-CIO et al. (S & M1 Rotogravure S.ervic, Inc.), 225 NLRB 1253 (1976). 2, Situs of the labor dispute The Board has long held that ambulatory picketing at a neutral employer's place of business is presumptively lawful if it can be found that such was in fact a situs of the primary labor dispute. Sailors' Union oJ' the Pacific. AFL (Moore Dry Dock Company), 92 NLRB 547 (195(0). In Moore Dry Dock, the Board set standards which must be met in order to find that the site of the picketing is common both to the neutral and the primary employers including, (b) at the time of the picketing the primarN employer is engaged in its normal business at the situs. Thus, a principal criterion in establishing permissible common situs picketing is that the employees of the pri- mary employer be present, or at best bhe only absent tem- porarily to perform work in furtherance of the primary employer's business. International Brotherhood of Electri- cau/ W4orker, I. ocal [:ttllo 861. and Orneth Lard, itr agent Plauche I:lectric, Inc.), 135 NLRB3 25() ( 1962) Such was not the case here on November 15 and 23. Sullivan was not engaged in its normal business activity at Prairie Ford. It did not have any employees at the fa- cility during the course of the picketing nor ould it have been reasonable to expect any Sulli an employees to have been present at Prairie ord to do any work in furtherance of the Sullivan business. Sullivan is a comnmon carrier. While important to this is the nlaintellll ce and repair (of its vehicles, a all times material here. its employees never engaged in that activi- t . Accordingly, I conclude that, at the time of the picket- ing on November 15 and 23, the Prairie Ford facility was not a work situs common to both the neutral (Prai- rie Ford) alnd primarN (Sulliivan) employers. in short, the picketling could not have been directed to Sullivan em- ployees but must have had a secondary object. Accord- ingly, by picketing Prairie Ford on November 15 and 23. the Union violated Section 8(h)(4)(i) and (ii)(B) of the Act and I so conclude. l re'ttlr, Convtrrluetion, General Drlvers, Warehoulermen and Illlpcrx 'nion,. Locul 287, tc. (Buck Butane-Propane Servic., Inc.), 186 NI.RB 187 (1 970)). 3. The dc n rninils argumient The Respondent contends that no remedial order should issue because the picketing occurred only for a short time on, two occasions. Howexer, sinlce the Re- spondent takes a po,,ition thal it had the right to picket Prairie Ford (and presumahly ally other facility where Sullivan trucks were being repaired) the fact that the picketing was minimal does not obviate the propriety of issuing a remedial order. Absent this litigation, or an order remedying the Respondent's unfair labor practice. it is reasonable to conclude that such picketing in the future would occur. The picketing in Buck' Burune-Propane. upra. found unlawful under circumstances similar to those here (the neutral employer fixed flat tires for the primary from time to time), lasted just 10 minutes on one occasion. Hence, a remedial order was found not warranted. The situation here is distinguishable because the picketing oc- curred oi two occasions, lasted for at least 20 to 30 minl- utes both times, and ceased only when the Sullivan truck was driven off (on November 15) and when the pickets were arrested (on November 23). The picketing here was not isolated. Accordingly, I reject the Respondent's ar- gument that the complaint should be dismissed on grounds that the picketing lasted for a very short time on onily 2 days. 3 I)ELCISIONS OF NATIONAL LABOR RELATIONS BO()ARD IV.I HI: Il:FICIS OF1: Trt UNIAIR I XBOR PRACII(IS UPON COMMERCE The unfair labor practices found above, occurring in connection with the businesses of Prairie Ford and Sulli- van, are unfair labor practices which tend to lead to labor disputes burdening and obstructing commerce within the meaning of Section 2(6) and (7) of the Act. V. lFt RMEI)Y Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, the entire record in this matter, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: OKRDER 2 The Respondent, General Drivers & Helpers Union, Local No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Omaha, Nebraska, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) icketing Prairie Ford Truck Sales in conlnection with its labor dispute with Sullivan Transfer Co. at any time when Sullivan Transfer Co. is not engaged in its primary business at the Prairie Ford Truck Sales facility. (b) In any like or related manner inducing or encour- aging any individual employed by Prairie Ford Truck Ill te relilt 11i eC.xCCltinnl s are filed as prosidedl h S 112 4 f tlhe Rules and Regulatiots of the Natioilal l.ahor Relaitons Board, tilhe find illgs. cnclusions, adnd rco nllienided ()rder herein shall, as provided ill Sec 1)2 48X i Ihe Rules aid Regulations. bh aldopted by the ilolardl uilld become its findings, cclusionls and Order, and all olbljeclions therlto shall he deemed wa;ivedl fr ll IputpoCses Sales, or any other person engaged in commerce or in an industry affecting commerce, to engage in a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to per- form any services; or threatening, coercing, or restrain- ing the said persons, or any other persons engaged in commerce or in an industry affecting commerce, where in either case an object thereof is forcing or requiring Prairie Ford Truck Sales to cease doing business with Sullivan Transfer Co. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its offices and meeting halls copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by an authorized rep- resentative of the Respondent, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of the notice to the said Regional Director for posting by Prairie Ford Truck Sales and Sullivan Transfer Co., such employers being willing, at all places where notices to their cm- ployees are customarily posted. (c) Notify the said Regional Director, in writing, within 20 days from the date of' this Order, what steps the Respondent has taken to comply herewith. :' In the %relt Ihal this Order is enlorced by ,I Judgment if a nitled States Court oir Appeals, the wsords i the nIlce reading "Posled by Order iof the National I.ahor Rlations Board" hall read "Posled Pursu- ant tll a Judgnnlmnt the lUnited Slates Court ('I Appeals nircing all ()rder oil the Naltiolnal I thor Relalioiis lardl 4