Bakery Drivers Local Union No. 276Download PDFNational Labor Relations Board - Board DecisionsSep 8, 1952100 N.L.R.B. 1092 (N.L.R.B. 1952) Copy Citation 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., or any other labor organization , except to the extent that this right may be affected by an agree- ment in conformity with Section 8 (a) (3) of the Act. We will not discrimi- nate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or nonmembership in any such labor organization. INDIANA METAL PRODUCTS CORPORATION, Employer. Dated -------------------- By ----------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. BAKERY DRIVERS LOCAL UNION No. 276, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER- ICA, AFL and CAPITAL SERVICE, INC. Case No. 21-CC-130. Sep- tember 8, 1952 Decision and Order On July 15, 1952, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (b) (4) (A) of the National Labor Relations Act and recommending that the Respondent cease and de- sist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the charging party, Capital Service, Inc., hereinafter called Capital, filed exceptions, with supporting briefs, to the Inter- mediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error has been committed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modification : In its exceptions, the Respondent contends that the Trial Examiner failed to differentiate between the picketing at the employee and deliv- ery entrances to the stores of the secondary employers and the picket- ing at the customer entrances to such stores.' The Respondent main- tains that the customer entrance picketing, directed to the consuming public, is not violative of Section 8 (b) (4) (A), and that the order recommended by the Trial Examiner is erroneous to the extent that it encompasses the customer entrance picketing. In its exceptions, in I There was also evidence of direct inducement of drivers not to make deliveries to the secondary employers. 100 NLRB No. 164 BAKERY DRIVERS LOCAL UNION NO. 276 1093 addition to urging the illegality of the customer entrance picketing, Capital contends that the Trial Examiner erred in not finding viola- tions of Section 8 (b) (1) (A) and Section 8 (b) (4) (B).1 At the hearing in this case the General Counsel unequivocally stated that he made no contention that the Respondent violated Section 8 (b) (4) (A) by picketing the customer entrances of the secondary employers. In view of the General Counsel's position and the finding of the Trial Examiner consistent therewith that the Respondent's unfair labor practices were limited solely to the period during which the employee and delivery entrances were picketed,3 we do not construe -the Trial Examiner's ultimate finding and recommended order as inclusive of the customer entrance picketing. Under these circum- stances, and as the picketing and other unlawful conduct at the em- ployee and delivery entrances-to the stores of the secondary employers constitute a clear violation of Section 8 (b) (4) (A) and a firm basis for our Order, we are not called upon to decide whether the customer entrance picketing here engaged in by the Respondent induced or ,encouraged the employees of secondary employers in violation of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bakery Drivers Local.Union No. 276, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL, and its officers, representatives, and agents shall : 1. Cease and desist from inducing or encouraging the employees of Thriftimart, Boys Valley Market No. 4, Valley Stores No. 1 and No. 2, Weber Baking Co., Folger's Coffee, Pellissier Dairy, or any other employer (other than Capital Service, Inc.), by picketing or related conduct, to engage in a strike or a concerted refusal in the course of their employment- to, use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or com- modities,-,or to perform any services, where an object thereof is to force or require Thriftimart, Boys Valley Market No. 4, Valley Stores No. I and No. 2, Weber Baking Co., Folger's Coffee, Pellissier Dairy, or any employer (other than Capital Service, Inc.) or other person to cease doing business with Capital Service, Inc. ' We agree with the Trial Examiner 's finding that there is no evidence in the record to support a violation of Section 8 (b) (1) (A), and Section 8 (b) (4) (B )i of the Act, and we shall dismiss the complaint in this respect. 8 February 7 to 25, 1952. On the latter date the Respondent stopped the picketing and other activity at the employee and delivery entrances to the stores , but continued the picketing at the customer entrances. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at the business office of Bakery Drivers Local Union No. 276, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL, copies of the notice attached hereto as an Appendix.4 Copies of said notice, to be furnished by the Regional Director for the Twenty-First Region, shall, after being duly signed by an official representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to members of Respondent are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-First Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. _ IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and Section 8 (b) (4) (B) of the Act. CHAIRMAN HERZOG and MEMBER PETERSON took no part in the con- sideration of the above Decision and Order. Appendix NOTICE TO ALL MEMBERS Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that: WE WILL NOT induce or encourage the employees of THRIFTI- MART, Boys VALLEY MARKET No. 4, VALLEY STORES No. 1 AND No. 2, WEBER BAKING Co., FOLGER'S COFFEE, PELLISSIER DAIRY, or any other employer (other than Capital Service, Inc.), by picketing or related conduct, to engage in a strike or a concerted refusal in the -course of their employment to use, manufacture , process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is to force or require Thriftimart, Boys Valley Market No. 4, Valley Stores No. 1 and No. 2, Weber Baking Co., IIn the event this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." BASERYFDRWERS - LOCAL-UNION NO.` 276 1'095 Folger 's Coffee , Pellissier Dairy, or any employer ( other than Capital Service , Inc.) or other person to cease doing business with Capital Service, Inc. BAKERY DRIVERS LOCAL UNION No. 276, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL Dated ------------------ By-------------------------------- (Title of officer) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE On a charge filed February 21, 1952, by Capital Service, Inc., herein called Capital, the General Counsel of the National Labor Rolations Board, herein called the Board , through the Regional Director of the Twenty-first Region (Los Angeles , California ), issued a complaint dated May 14, 1952, alleging that Bakery Drivers Local Union No. 276, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, AFL, herein called the Union or the Respondent , in violation of Section 8 (b), subsections (1) (A), (4) (A), and (4) (B) and Section 2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called the Act, induced and encouraged employees of customers of Capital and their suppliers to engage in concerted refusals in the course of their employment to transport or otherwise handle or work on goods or commodities , or to perform services, an object thereof being to force or require the said customers of Capital and their suppliers to cease using, selling, handling , transporting, or otherwise dealing in the products of Capital ,or to cease doing business with Capital. In its duly filed answer , dated May 19, 1952, the Respondent admitted (by not denying ) the jurisdictional allegations of the complaint , and denied the com- mission of the alleged unfair labor practices. Although filing a charge with the Board , as stated, prior to the issuance of a complaint thereon , Capital sought and obtained in the Superior Court of Cali- fornia, Los Angeles County, a preliminary injunction which restrained the Union from engaging in any picketing at retail stores handling Capital's products (Capital Service , Inc., etc. v. Bakery Drivers' Local Union Number 276, et. al., No. 595892 ). Capital thereafter filed a motion to intervene in this proceeding for the purpose of asserting certain defenses to the complaint herein. This motion was denied by Trial Examiner Wallace E. Royster by order dated May 27, 1952. The order directed Capital 's attention to the fact that as a party Capital was entitled , under the Board 's Rules and Regulations , to participate in this proceeding to the extent of its interest. Following the issuance of a preliminary injunction in the State court, the General Counsel sought and obtained in the United States District Court for the Southern District of California , Central Division , a preliminary injunction, dated June 2, 1952, restraining Capital from proceeding under the injunction of 'the State court pending a final determination on the complaint herein ; and a preliminary injunction, also dated June 2, 1952, restraining the Union from engaging in conduct alleged in the complaint pending final adjudication by the 1096 DECISIONS OF NATIONAL LABOR ,RELATIONS ,BOARD Board of the matters involved herein (Civil Action No. 14142 HW and Civil Action No. 14141 HW, respectively). Capital was admitted as an intervenor in the proceedings before the district court and participated therein. On due notice to all parties a hearing was held at Los Angeles, California, on June 26 , 1952, before the undersigned duly designated Trial Examiner. The General Counsel and the Respondent were represented at and participated in the hearing where full opportunity to be heard and to introduce evidence bearing on the issues was afforded all parties. Capital did not enter an appearance. The General Counsel and the Respondent stipulated and moved that portions of the transcript of proceedings in the district court, as specified by them, be admitted as evidence in this proceeding, and this motion was granted without objection. No further evidence was offered. The General Counsel and the Respondent engaged in oral argument before the undersigned and waived the filing of briefs. Upon the evidence submitted, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS (a) Capital is engaged in the manufacture and distribution of bakery products in Los Angeles, California. During 1951 it purchased raw materials valued in excess of $500,000, of which raw materials of the value of approximately $30,000 were received directly from outside the State of California and of the value of approximately $175,000 were received indirectly from outside the State of California. (b) Tbriftimart, a retail food market located in Los Angeles, is a customer of Capital. In 1951 Thriftimart received merchandise valued at approximately $300,000 directly and indirectly from sources outside the State' of California. (c) Boys Valley Market No. 4, a retail food market located in Los Angeles, California, is another customer of Capital. During 1951 Boys Valley Market No. 4 received merchandise valued at approximately $800,000 directly from sources outside the State of California, and received merchandise valued at approximately $1,000,000 indirectly from. outside the State of California. (d) Valley Stores No. 1 and No. 2 are other customers of Capital located in North Hollywood, California. During 1951 Valley Stores No. 1 and No. 2 received merchandise valued at approximately $250,000 indirectly from outside the State of California. (e) Weber Baking Co. is engaged at Glendale, California, in the manufacture and distribution of bakery products. Among others, it supplies bakery products to Valley Stores No. 1 and No 2 and Boys Valley Market No. 4, which are also customers of Capital. (f) Pellissier Dairy is engaged at Los Angeles, California, in the manufacture and distribution of dairy products. Among others, it supplies dairy products to Tbriftimart, which is also a customer of Capital. (g) Folger's Coffee is engaged at Los Angeles, California, in the distribution of coffee. Among others, it supplies coffee to Thriftimart, which is also a customer of Capital. As will be seen hereinafter, in furtherance of its labor dispute with Capital, the Union picketed Thriftimart, Boys Valley Market No 4, and Valley Stores No. 1 and No 2, customers of Capital, and induced and encouraged employees of various suppliers of goods and products to these customers of Capital includ- ing Weber Baking Co., Pellissier Dairy, and Folger's Coffee, not to make deliveries to these customers unless and until the latter agreed to cease handling Capital products. In determining whether the Board has, and as a matter of policy BAKERY 1--DR'IVERS LOCAL UNION NO. 276 1097 should assert jurisdiction, it is necessary and appropriate to consider not only the effect of Capital's operations on commerce, but the operations of its cus- tomers, Thriftimart, Boys Valley Market No. 4, and Valley Stores No. 1 and No. 2, as well, because the labor dispute, involving the picketing of these secondary employers, affected their operations as well as those of Capital. Were the operations of Capital alone involved, the Board would have jurisdiction, but under its formula for asserting jurisdiction, would not assert it. The combined operations of Capital and its customers involved in the labor dispute meet and exceed the requirements of the formula. Accordingly it is found that the operations of the employees involved in the labor dispute affect commerce within the meaning of the Act and that the Board, as a matter of policy, will assert jurisdiction herein. N. L. R. B. v. Denver Building and Construction Trade Council (Gould & Preisner), 341 U. S. 675; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (James- town Builders Exchange, Inc.), 93 NLRB 386. The Board's formula for asserting jurisdiction having been satisfied, it is not necessary to consider the operations of suppliers to the customers of Capital in determining jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Bakery Drivers Local Union No. 276, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES 1 On various dates between February 7 and 25, 1952, the Union, through its business agents and representatives, picketed certain retail grocery establish- ments in the vicinity of Los Angeles, California, including Thriftimart, Boys Valley Market No. 4, and Valley Stores No. 1 and No. 2, an object thereof being to force or require these establishments, all customers of Capital, to cease using, selling, handling, transporting, or otherwise dealing in the products of Capital or to cease doing business with Capital. This action was the outgrowth of a labor dispute between the Union and Capital, and in furtherance of the Union's interest in that dispute. As testified to by the Union's business agents, the Union's representatives first contacted the managers of these and other establishments, informed them that Capital was nonunion, and requested them to cease handling Capital's products If the request was refused a picket line was established. If Capital's products were withdrawn the picket line was withdrawn. If, later, the establishment returned Capital's products to its counters the picket line was reestablished until the products were again withdrawn. On some occasions the picket lines were operative no more than an hour or so because during that time consent of management to withdraw Capital's products had been obtained. The picket- ing, on occasion, was at the delivery entrance to the establishment; on others, at the customers' entrances. The placard or sign borne by the pickets contained the following language : TO THE PUBLIC DANISH MAID BAKERY PRODUCTS ' Findings under this title are based on undisputed testimony in the proceedings before the United States District Court for the Southern District of California, Central Division, and admissions of counsel and witnesses in those proceedings Howard F. LeBaron v. Bakery Drivers Local Union No 276, et at, Civil No 14141. 1098 DECISIONS OF NATIONAL LABOR-'RELATIONS BOARD SOLD HERE ARE MADE AND DELIVERED BY A BAKERY THAT IS NON UNION AND ON THE WE DO NOT PATRONIZE LIST OF THE LOS ANGELES CENTRAL LABOR COUNCIL LOS ANGELES FOOD COUNCIL JOINT COUNCIL OF TEAMSTERS ' UNION 42 BAKERY DRIVERS ' LOCAL 276 BAKERS' LOCAL NUMBER 37 While, as seen, this placard on its face is an appeal to the public, in actuality, as disclosed by undisputed testimony, the picketing also constituted an in- ducement to employees of suppliers to customers of Capital, including Weber Baking Co., Folger's Coffee, and Pellissier Dairy, to refuse to make deliveries at the establishments being picketed.' As previously stated, the picketing was on occasion at the delivery rather than the customer entrance to the plant and it is further shown that, on occasion, those picketing or representatives of the Union in charge of the picketing, specifically requested certain drivers not to make their deliveries until the establishment being picketed had agreed not to handle Capital products. It is immaterial that in some instances the pickets were up only a short time ; they were not withdrawn until their unlawful objective had been accomplished. At the hearing in this proceeding, Union's counselor, John C. Stevenson, argued that there was no inducement to collective action within the meaning of the Act inasmuch as the inducement was directed at individual drivers of delivery trucks. This position is not tenable. Admittedly, it was the purpose of the Union and an object of its picketing to stop, if possible, all trucks making delivery of prod- ucts to the picketed customers of Capital, and it is immaterial that the drivers of these trucks may have approached the picketed premises individually, and may have been turned back individually. The inducement was for them to join with the Union, and to act in concert with each other and with the Union, in stopping deliveries to customers of Capital until these customers agreed to cease handling Capital products. Office Towel & Supply Company, 97 NLRB 449; Root-Carlin Inc., 92 NLRB 1313, 1314. From the fact that on or about February 25, following the filing of a charge in this case by Capital, the Union, on advice of counsel, ceased to picket delivery entrances and to stop deliveries and informed drivers that there was no objection to their making such deliveries, Respondent argues further that, conceding there may have been unlawful picketing prior to that date, Respondent purged itself of unlawful design and should not now be held to be a law violator. Needless to say, voluntary compliance with the Act should be encouraged but an informal settlement in such matters is usually and properly accomplished at the adminis- trative level. I am unable to say on the basis of the evidence that is before me that the danger of a recurrence of the unlawful picketing is so remote as to require no remedial order. Local 74, United Brotherhood of Carpenters etc. v. 2 Testimony of Chester H. Leonard, business representative of the Union : Q. Did you speak to any truck drivers at Boys Market? A. Didn't have to They saw the sign and kept going. Testimony of Henry J . Becker , president and business representative of the Union : Q. Did any trucks come to make deliveries to that market while your line was up? A They came, but passed by without stopping. BAKERY DRIVERS LOCAL UNION NO. 276 1099 N. L. R. B.; N L. R. B. v. Carpeuttcrs, 184 F. 2d 60 (C. A. 10), cert. den. 341 U. S. 947. ' Although Capital, a party to this proceeding, did not participate in the hear- ing before this Trial Examiner, it is clear from its position as intervenor in the proceeding before the district court that it now challenges the jurisdiction of the Board and would deny the commission, by the Respondent, of the alleged unfair labor practices With respect to jurisdiction it has admitted the facts on commerce on which a decision herein has been predicated. With respect to its change of position both as to the Board's jurisdiction and the commission of the alleged unfair labor practices, it may be assumed that it was satisfied with the relief granted it by the State court, and no longer desires to invoke the jurisdiction of the Board. This change in its position as the charging party- assuming in the absence of its appearance at this hearing that such is the case- does not, of course, in any way vitiate this proceeding for while such a proceed- ing may be initiated only by the filing of a charge, once it has been initiated public interest under the Act may not be defeated by the desire of the charging party to recede from its initial position. Wynn Liquor and Distillers (Scie-enley Distributors), 78 NLRB 504, 505. An application for the withdrawal of the charge may properly be made, and when made, the matter of course is considered on its merits. _ Capital was not foreclosed by the denial, prior to the hearing, of its motion to intervene from appearing in this proceeding as a party and making such a motion. It did not choose to do so. I find that since on or about February 7, 1952, and until on or about February 25, 1952, the Respondent, in violation of Section 8 (b), subsection (4) (A) of the Act, induced and encouraged employees of customers of Capital and their suppliers , including Thriftimart, Boys Valley Market N. 4, Valley Stores No. 1 and No. 2, Weber Baking Co., Folger's Coffee, and Pellissier Dairy, to engage in concerted refusals in the course of their employment to transport, or otherwise handle or work on materials and commodities, or to perform services, an object thereof being to force or require the said customers of Capital and their suppliers to cease using, selling, handling, transporting, or otherwise dealing in the products of Capital or to cease doing business with Capital. No evidence was submitted to support the allegation that the Respondent engaged in conduct violative of Section 8 (b), subsection (1) (A) and (4) (RI of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, hereof, occurring in connection with the operations of employers set forth in section I, hereof, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8 (b) (4) (A) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. Bakery Drivers Local Union No. 276, International'Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act by inducing and encouraging employees of customers of Capital and their suppliers, including Thriftimart, Boys Valley Market No. 4, Valley Stores No. 1 and No . 2, Weber Baking Co., Folger's Coffee, and Pellissier Dairy, to engage in concerted refusals in the course of their em- ployment to use, transport , or otherwise handle or work on products or com - modities, or to perform services , an object thereof being to force or require the said customers of Capital to cease using , selling, or otherwise dealing in the products of Capital or to cease doing business with Capital. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent has not engaged in conduct violative of Section 8 (b) (1) (A) or (4) (B) of the Act. [Recommendations omitted from publication in this volume.] UNITED STATES GYPSIIM COMPANY and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER . Case No. 8-RC-1545. September 8, 1952 Supplemental Decision and Certification of Representatives Pursuant to a Decision and Direction of Election, issued on May 5, 1952, an election was conducted in this proceeding on May 22, 1952, under the direction and supervision of the Regional Director for the Eighth Region among the employees in the unit heretofore found appropriate. At the close of the election, a tally of ballots was fur- nished each of the parties in accordance with the Board's Rules and Regulations. The tally shows that, of approximately 215 eligible voters, 126 cast valid ballots for the Petitioner, 24 cast valid ballots against the Petitioner, and 47 ballots were challenged. On May 29, 1952, the Employer filed timely objections to the conduct of the election and to conduct affecting the results of the election, alleging in substance that, during the investigation of the case, Local No. 1090, an interested local of the Petitioner, was not in compliance with Section 9 (f), (g), and (h) of the Act and, for that reason, the election was conducted without legal authority and should be set aside and the petition for representation dismissed. On August 1, 1952, the Regional Director issued and served upon the parties his report on objections. The Regional Director found, among other things, that on December 2, 1951, the International held an organizational meeting for employees at the Employer's Warren, Ohio, plant; that on December 15, 1951, all temporary officers of the incipient local executed non-Communist affidavits in conformity with 100 NLRB No. 165. Copy with citationCopy as parenthetical citation