Local 560, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Jun 20, 1960

127 N.L.R.B. 1327 (N.L.R.B. 1960)

LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1327
respect to laborrdisputes cognizable under Sections 8(a) and 9 of our
Act. It 'follows that the petition for an advisory opinion must be
dismissed for,want of jurisdiction. Our decision is confined to the
facts before us, and is not to be construed as precluding us or any
other forum from reconsidering the matter in litigation where a fuller
record is developed. -
MEMBERS BEAN and JENKINS took no part in the consideration of
the above Opinion Dismissing Petition for Advisory Opinion.
Local 560, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and The Pennsylvania
Railroad Company
Local 560, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Riss and Co., Inc.
Local 641, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Riss and Co., Inc.
Joint Council No. 73, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America and Riss
and Co., Inc . Cases Nos. 22-CC-36, 22-CC-38, 22-CC-39, and
22-CC-41. June 20, 1960
DECISION AND ORDER
On July 30, 1959, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in these proceedings, finding that Locals 560 and
641, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, had engaged in and were engaging in
certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. He further
found that the Respondent, Joint Council No. 73, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, had not engaged in any such practices and recommended
that the complaint insofar as it related to the Joint Council be dis-
missed. Thereafter, the General Counsel and Respondent filed excep-
tions and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the Trial Examiner's findings, con-
clusions , and recommendations with the additions, modifications, and
corrections hereinafter indicated. -
127 NLRB No. 157.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The primary employer involved is Riss and Co., Inc., an interstate
trucker. As part of its operations, Riss maintains a terminal at South
Kearny, New Jersey. Until August 31, 1958, it was party to a con-
tract with Local 560 of the Teamsters covering the drivers and plat-
form employees at the terminal. When this contract expired, on the
above date, it was not renewed. Nevertheless, the employees continued
working for Riss until November 10, 1958, when South End Cartage
Company (hereinafter designated SE) entered into a contract with
Riss, undertaking the latter's cartage and platform work at South
Kearny. SE employed all Piss' former employees who, during this
period, were represented by Local 641 of the Teamsters.' SE termi-
nated its agreement with Riss on January 10, 1959. Thereupon, Riss
immediately entered into anagreement with the Cartage and Terminal
Management Corporation( hereinafter designated C & T) to have it
take over the trucking operations at South Kearny. C & T, in turn,
entered into sales-lease. arrangements with various drivers, none of
whom had been previously employed by Riss-SE, whereby such drivers
undertook the purchase of !Riss tractors. Cartage rates were estab-
lished for freight and delivery services performed for C & T 2 When,
on January 12, C & T dispatched one of these owner-operators, Local
641 and the Riss-SE drivers began picketing the Riss terminal. On
January 13, 14, and 15, picketing was discontinued while Riss-SE
drivers delivered the freight accumulated at the warehouse.
From January 16, 1959, on, Local 641 and the Riss-SE drivers have
continuously maintained a .picket line at the terminal. In addition,
some of the Riss-SE drivers' have- followed the C & T drivers or owner-
operators in the local cartage of Riss freight and have appealed to
third-party employers not to accept that freight. On occasions, these
Riss-SE drivers have appealed to employees of third-party employers
or have picketed the premises of such employers while a Riss trailer
was present.
The complaint alleges that'Local 641 violated Section 8(b) (4) (A)
by such secondary activitids` at places of busines of Harvey Redden,
Inc.; A. M. Uhrik, Inc.; Feuer Transportation Company; Colgate
Palmolive Company; Fenestra, Inc. ; United States Line Company
(Pier 59) ; and Major Liduor Distributing Company. It' further
alleges that Teamsters' Joint Council No. 73 and Local 560 violated
this section by the,parts they played in the Redden incident.
The Trial Examiner found that Respondent Local 641 violated the
Act by appealing to employees of Fenestra not to unload a trailer and
The record fails to reveal whether or not SE entered into a collective-bargaining agree-
ment with Local 641.
9 We agree with Riss' and the General Counsel's contentions that it is not necessary to
resolve the issue of whether ,or-not the owner-operators are independent contractors or
are, in fact, employees. - If they are independent contractors, then, it is clear from the
record that the owner-operators are allies of Riss and that the. Respondents could take
the same economic action against, them as against Riss, the primary- employer..
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1329
by picketing at Major Liquor. He found further that Respondent
560 violated the Act by inducing Redden's employees to refuse handling
Riss trailers. However, he found no violations against Joint Council
No. 73 and Local 641 with regard to the Redden incident. Nor did
he find that Local 641 violated 8(b) (4) (A) at Uhrik, since that com-
pany was an ally of Riss. In the incidents involving Feuer and
Colgate, the Trial Examiner found that only representatives of man-
agement were approached and, hence, there were no violations: He
also found that there was no inducement or picketing at Pier 59 and,
thus, noviolation.
In agreement with the Trial Examiner, the Board finds that Re-
spondent Local 641 violated 8 (b) (4) (A) of the Act at Fenestra and
Major Liquor. With regard to this latter incident, however, the
Board extends the basis for finding the violation.
At Major Liquor, the Riss-SE strikers engaged in picketing activity
which the Trial Examiner found did not meet all the- Moore Dry
Dock' safeguards and, therefore, violated the Act. The Board finds
that this picketing was also a violation under the Washington Coca
Cola 4 doctrine,' for assuming without deciding that the owner-oper-
ators were employees, their employer had a permanent, place of
business at Riss' South Kearny terminal where Respondent Local 641
could have adequately publicized the dispute. There, the owner-
operators pick up and deliver freight as often as four times a day.'
Accordingly, we find a violation of, Section 8(b) (4) (A) on the basis
of Washington Coca Cola' as well as Moore Dry Dock.
In further, agreement with the Trial Examiner, the Board finds no
violation in the Uhrik and Pier 59 incidents.' However, contrary to
the Trial Examiner, the Board finds that Respondent Local 641
violated the Act at Feuer and Colgate.
The record insofar as it relates to Feuer reveals that a C & T owner-
operator and his helper went to the Feuer terminal to receive a delivery
of merchandise. Riss-SE strikers requested Lynch, the Feuer plat-
form man, whose job it was to receive freight, not to make such
delivery. Lynch was hourly paid with no right to hire or discharge
t,3 Sailors' Union of the Pacific, AFL (Moore Dry Dock Company ), 92 NLRB 547.
4Breioery and Beverage Drivers and Workers, Local No 67, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL (Washington
Coca Cola Bottling Works , Inc.), 107 NLRB 299 -
6 This doctrine was extended to cover an ally situation in General Teamsters Local
No 324, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America ( Truck Operators League of Oregon ), 122 NLRB 25.
U Most of the owner-operators garage their tractors at the terminal , although they may
park them at home
7 Member Fanning does not subscribe to the Washington Coca Cola per se doctrine
employed by his colleagues and therefore dissents from finding a violation of Section
8(b)(4)(A ) on this ground.
E Member Jenkins dissents from the Board's Pier 59 determination for the reasons set
forth in this dissent, infra
560940-61-vol. 127-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but, when his superior was absent, as he was at the time involved
herein, he was the only person at the warehouse and, hence, "in
charge." However, when 'requested to refuse to make delivery, he
immediately contacted Feuer headquarters for instructions.
The Trial Examiner found that Lynch was a representative of
management and, since 8(b) (4) (A)'s proscriptions apply only to
inducement of employees, there was no violation of this section.
As we stated in Detroit Edison,9 once the General Counsel has estab-
lished that persons employed by a third-party employer have been
induced or encouraged for unlawful objects, it rests upon the re-
sliondent to produce evidence that these individuals were supervisors
and not employees. Only if such evidence is produced is the specific
inducement removed from,the interdiction of the Act. The Respond-
ents in the instant case have failed to produce such evidence. The
record indicates that Lynch was a rank-and-file employee and not a
representative of management.10
Although Lynch was the only induced employee at Feuer, we find
a violation of 8 (b) (4) (A). In such a case as this, we survey the total
pattern of conduct and view each incident as one of a series of related
events. Consequently, inducing a single employee of several em-
ployers may constitute an inducement to concerted action in violation
of the Act.ii
At the Colgate warehouse, the same C & T owner-operator appeared
for a pickup. The Riss-SE strikers approached Hine, Colgate's
night clerk and dispatcher. As with Lynch in'the Feuer affair, the
Trial Examiner found him to be a representative of management.
However, there is no evidence in the record that Hine possessed any
of the indicia of supervi^ ory 'authority., When he was requested to
refuse delivery, Hine-immediately referred the matter to his super-
visor who, in turn, referred it to another Colgate official. As the Re-
spondents failed to produce any evidence to show that the night clerk
was other than an employee, he must be assumed to be one and, under
the total pattern of conduct approach, there is a violation.
With regard to the incident at Harvey Redden, Inc., not only Local
641 but Joint Council' No. 73 and Local 560 of the Teamsters are
charged with violating the Act. , The Trial Examiner found only
6 Local No. 636 of the United Association of Journeymen and Apprentices of the Plumb-
ing and Pipe Fiting Industry of the United States and Canada, AFL-CIO, et at. (The
Detroit Edison Company and Westinghouse Electric Corporation ), 123 NLRB 225, enfd. in
pertinent part 278 F. 2d 858 ,(C.A., D.C.).
10 See General Warehousemen & Employees Union, Local 636, et al. ( Roy Stone Transfer
Corporation ), 100 NLRB 856.
u International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, et al. (Adolph Coors Company ), 121 NLRB 271, reversed
on this and other grounds N L.R.B. v. International Union of United Brewery, Flour,
Cereal, Soft Drink and Distillery Workers of America, AFL-CIO and Local 336 , 272 F. 2d
817; Seattle District Council affiliated with United Brotherhood of Carpenters and
Joiners of America, AFL, et al. ( Cisco Construction Company ), 114 NLRB 27.
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1331
against 560. The Board finds, contrary to the Trial Examiner, that
560, too, did not violate the act.iz
Redden's employees load and unload flatcars carrying motor
trailers at the South Kearny "piggyback" terminal of the Pennsyl-
vania Railroad. They are represented by Local,560.
On January 27, 1959, Joint Council No. 73 sent a letter to all its
constituent locals, including 560, notifying them of the dispute be-
tween Local 641 and Riss.13 On January 28, Witt, 560's shop steward
at Redden, called an officer of that company and stated that, on orders
from the union delegate, Redden employees were not to handle Riss
trailers and, thereafter, they would not do so. He agreed, however,
that those trailers already in transit would be unloaded.
On February 2, five trailers not covered by this agreement arrived
at the terminal. The employees refused to unload them and for the
next 8 days all Riss trailers had to be rerouted or else remain on 'the
flatbeds in the yard. A temporary restraining order was issued on
February 10, 1959, and since that date Redden's employees have
handled all Riss equipment.
The Respondents argue that Shop Steward Witt's authority was so
limited by the contract that any statement he made is inadmissible
against them.14 They also contend that Joint Council No. 73's letter
was merely to inform interested parties of the primary dispute be-
tween Local 641 and Riss and that Local 641 took no action to induce
Redden's employees within the meaning of Section 8(b) (4) (A).
The refusal to handle simply resulted from the Redden employees'
sympathy for the drivers picketing at the Riss terminal, adjacent
to the railroad yard.i5
The Board agrees with the Trial Examiner 's finding that the
Riss-SE pickets could be, and were, seen by Redden's employees as
they worked in the freight yard. However, since a picket line around
a primary employer's place of business cannot constitute a violation
of 8('b) (4) (A), and since this was the only Local 641 activity in-
volved in the incident, Local 641 did not, here, violate the Act.
With regard to Local 560, the Trial Examiner found that Joint
Council No. 73's letter removed the contractual limitation on Witt's
12 Member Jenkins would find against both Joint Council No. 73 and Local 560 for the
reasons set forth in his dissent, infra.
l8 The letter read : "Your attention is called to the dispute of Local #641 against
Terminal •Cartage & Management Corporation [ sic] . . . (Ries & Co .) ( South End
Cartage Co.)."
14 Under the contract , a shop steward may not take any action to interrupt business
operations unless the Union has officially authorized it.
Moreover , the Redden man to whom Witt spoke was unable to contact any official of
Local 560 for a confirmation or denial of Witt's statement . Under the laws of agency,
Witt's assertion alone, cannot establish his authority with regard to the refusal to handle.
u Only one Redden employee , Skennion , was called as a witness . His testimony was so
suspect as to be worthless and the Trial Examiner completely discounted it. As a result,
there is no evidence in the record of any actual inducement of employees.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authority to interrupt Redden's business operations. Therefore, he
was acting within the scope of his authority when he notified Redden
that Local 560 had ordered the employees to cease handling Riss
trailers. Based on this admission against interest by a union agent,
the Trial Examiner found that the General Counsel had proved his
case of inducement to concerted action. Thus, there was a violation
of 8(b ) (4) (A).
Although he found that Joint Council No. 73's letter was sufficient
to remove the contractual limitation on Witt's authority, the Trial
Examiner went on to find that his letter called for no action on the
part of the constituent' locals. - Rather, it was a "dissemination of
... information to interested parties." Accordingly, the Trial Ex-
aminer recommended that the complaint against Joint Council No.
73 bje dismissed in its entirety.
We find a basic inconsistency in the Trial Examiner's reasoning
with regard to Local 560 and Joint Council No. 73. The contractual
provision relating to a steward's authority read : I
Shop stewards have no authority to take strike action, or any
other action, interrupting the employer's business in violation of
law except as authorized by official action of the union. The em-
ployer recognizes this limitation upon the authority of shop
stewards. [Emphasis supplied.]
Thus, in order for Joint Council No. 73's letter to have removed this
contractual limitation upon Witt's authority, it would have had to
constitute "official action of the union" authorizing the refusal to
handle.
We note that Local 560 was the only local of the several locals under
Joint Council No. 73's jurisdiction which refused to handle Riss
freight. Thus, the letter was obviously not an "order" with which the
locals had to comply." We find' that the letter merely informed
interested parties of the primary dispute and was not an official
action authorizing ai y. refusal to handle., Consequently, there is
nothing in the record to support a conclusion that the contractual
limitation placed' on Shop Steward Witt's authority was removed.
Clearly, he could not remove the limitation by self-declaration. Red-
den recognized this as evidenced by its unsuccessful attempt to contact
the Local 560 delegate for a confirmation or denial of Witt's state-
ment that a refusal to handle had been ordered. The "mere statement
is inadequate for a finding- of responsibility on the part of the Re-
spondents. Accordingly, we find that neither Local 560 nor Joint
10 The Teamsters constitution provides : "wherever (3) or more Local Unions are lo-
cated in (1) city they shall form a Joint Council" (General Counsel's Exhibit No. 7)
and that "all Local Unions -within the jurisdiction of -the Joint Council shall . . . comply
with its laws and orders." ,
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1333
Council No. 73 violated Section 8 (b) (4) (A) of the Act in the Redden
incident.
In view of the foregoing, the Board's findings of violation extend
only to Local 641 in the Fenestra, Major Liquor, Feuer, and Colgate
incidents.
SUPPLEMENTAL CONCLUSIONS OF LAW
1. On February 18, 1959, by engaging in, or inducing or encourag-
ing the employees of Feuer Transportation, Inc., to engage in, a strike
or concerted refusal in the course of their employment to perform
services for their employer, an object thereof being to force or require
said employer to cease using, selling, handling, transporting, or other-
wise dealing with or doing business with Riss and Co., Inc., Respond-
ent Local 641 has engaged in unfair labor practices proscribed in
Section 8 (b) (4) (A) of the Act.
2. On February 20, 1959, by engaging in, or inducing or encourag-
ing the employees of the Colgate Palmolive Company to engage in,
a strike or concerted refusal in the course of their employment to
perform services for their employer, an object thereof being to force
or require said employer to cease using, selling, handling, transport-
ing, or otherwise dealing with or doing business with Riss and Co.,
Inc., Respondent Local 641 has engaged in unfair labor practices
proscribed in Section 8(b) (4) (A) of the Act.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Local 641, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, successors, and assigns, shall:
1. Cease and desist from engaging in, or inducing or encouraging
the employees of Fenestra, Inc., Major Liquor Distributing Company,
Feuer Transportation, Inc., and Colgate Palmolive Company or any
other employer to engage in, a strike or concerted refusal in the
course of their employment to use, manufacture, process, transport, or
otherwise handle or work on any goads, articles, materials, or coin-
modities, or to perform any services, where an object thereof is to
force or require said employers, or any other employers or persons,
to cease using, selling, handling, transporting, or otherwise dealing
or doing business with Riss and Co., Inc.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in the State of
New Jersey copies of the notice attached hereto marked "Appen-
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
dix." 17 Copies of said notice; to be furnished by the Regional Di-
rector for the Twenty-second Region, shall, after being signed by a
duly authorized representative of Respondent Local 641, be posted by
it immediately upon receipt thereof, and maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members -are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that,such notices
are not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Twenty-second
Region signed copies of the notice attached hereto marked "Ap-
pendix," for posting by Fenestra, Inc., Major Liquor Distributing
Company, Feuer Transportation, Inc., and Colgate Palmolive Com-
pany, if they so agree, at the respective places where notices to their
employees are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-second Region, shall,
after being duly signed as indicated above, be forthwith returned to
the Regional Director for disposition by him.
(c) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBER JENKINS, dissenting in part:
Contrary to my colleagues, I would find that Local 641 violated
Section 8 (b) (4) (A) of the Act at Pier 59 and that Local 560 and
Joint Council No. 73 violated it at Redden.
A majority of the Board would sustain the Trial Examiner's finding
of no violation at Pier 59 * because the - record failed to reveal any
evidence of "encouragement or inducement." IIi my opinion, the
testimony of Patrick Killeen, ILA shop steward of the pier's checkers,
affords such evidence.
Killeen testified that on the afternoon of February 20, 1959, three
or four men approached him on the pier. They had signs at their
sides which he did not see but he had seen the men around the pier
,in the morning and believed them to be Riss-SE strikers. One of
the men identified himself as a Riss picket and told Killeen that the
pier would be closed down if any 'Riss shipments were accepted.
According to Killeen, there Whs no doubt in his mind that the men
who approached him were Riss-SE strikers. -
On the morning of February 20, two Riss trailers had been driven
up to the pier. Before either was admitted, the ILA gave notice
that Riss trailers were not to be loaded or unloaded . Several posi-
17 In the event that 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." _
LOCAL 560, INT'L BROTHERHOOD OF-TEAMSTERS, ETC. 1335
tively identified Riss-SE strikers were present at the pier. There
was a conflict of evidence as to whether or not there was actual
picketing which the Trial Examiner resolved by finding that there
was none.
-I believe that the General Counsel has proven his case of induce-
ment or encouragement: There were Riss-SE strikers in the imme-
diate area of the pier. Killeen had seen these strikers and was con-
vinced that they were the men who approached him in the afternoon.
The men carried signs- and one identified himself as a Riss picket.
This is sufficient evidence on which to find Local 641 violated
8(b)-(4) (A) of the Act. There is no doubt in my' mind, as indeed,
there was none in Killeen's, that these men were Riss-SE strikers.
The only alternatives would be that they were jokers, malicious inter-
lopers, or ILA representatives. Killeen, in all probability, would
have known another ILA man and there is no reason why a longshore-
man would pose as a Riss picket. That some bystanders should inject
themselves into the dispute frivolously or for some unknown evil
purpose is, to say the least, incredible. Accordingly, I would find a
violation. '
Moreover, I would find that Local 560 , and Joint Council No. 73
violated the Act at Redden. As noted in the majority decision, the
-Teamsters constitution provides that: "whenever (3) or more Local
Unions are located in (1) city they shall form a Joint Council18 and
"all Local Unions within the jurisdiction of the Joint Council
shall ... comply with its laws and orders." is
The locals in the Teamsters organization are agents which must
obey the orders of their joint councils. They are subordinate bodies
directed and controlled by those couneils. Under the constitution, a
local, prior to any strike or boycott, must notify its joint council of
the contemplated action. The council then takes the steps necessary
to, approve or disapprove such action 20 In short, the locals take no
"serious" action unless authorized by their joint councils to do so. - ,
The Teamsters constitution was admitted into evidence : it is part of
the record. Yet, the majority herein completely ignores the opera-
tions of the Teamsters'organization as revealed through it. - • ' -
I would find that Joint Council No. 73's letter authorized Local
560 to interrupt Redden's business operations. As such, it was suffi-
cient to remove the contractual limitation on Witt's authority. Thus,
when Shop Steward Witt stated that, on orders from the union dele-
gate, Redden employees were not to handle Riss trailers, this was an
admission against interest by an agent of Local 560. On this admis-
18 General Counsel's Exhibit No. 7.
ie Ibid.
20 I btd.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sion, the General Counsel proved an inducement to concerted action.
I would find that both Local 560 and Joint Council No. 73 violated
8(b) (4) (A) of the Act.
MEMBERS RODGERS and BEAN took no part in the consideration of the
above Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 641, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA
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 notify you that :
WE WILL NOT engage in, or induce or encourage the employees
of Fenestra, Inc., Major Liquor Distributing-Company, Feuer
Transportation, Inc., and Colgate Palmolive Company, or any
other employer, to engage in, a strike or concerted refusal in the
course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, mate-
- rials, or commodities, or to perform any services, where an object
thereof is to force or require said employers, or any other em-
ployers or persons, to cease using, selling, handling, transporting,
or otherwise dealing or doing business with Riss and Co., Inc.
LOCAL 641, INTERNATIONAL BROTH-
ERHOOD oF. TEAMSTERS, CHAUFFEURS,
WVARETIOUSEMEN AND HELPERS OF
AMERICA,
Labor Organization.
Dated-==----------- -- By ---------------------------------------
I - - (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.
INTERMEDIATE REPORT
STATEMENT OF THE,,CASE
Upon separate charges filed by The Pennsylvania Railroad Company and Riss
and Co., Inc., hereinafter called the Charging Parties or Riss, between February 2
and 6, 1959, the General Counsel of the National Labor Relations Board, hereinafter
referred to as the General Counsel 1 and the Board, respectively , through the Regional
Director for the Twenty-second Region ( Newark, New Jersey ), issued a -consolidated
complaint dated February 17, 1959, and an amendment to consolidated complaint
dated March 23, 1959 , against Local 560, Local 641, and Joint Council No. 73,
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
i This term includes the counsel appearing for the General Counsel at the hearing.
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1337
of America , hereinafter referred to collectively as the Respondents or individually
by their local designation . Copies of the charges , order of consolidation and order
of amendment , consolidated complaint and amendment to consolidated ' complaint,
and notice of hearing thereon where duly served upon the Charging Parties and the
Respondents.
In brief the amended consolidated complaint alleged that the Respondent indi-
vidually, and acting in concert with and as agents for each other , have engaged in,
and by orders , directions , instructions , requests , appeals, picketing, and other means,
have induced and encouraged the employees of Harvey Redden , A. M. Uhrik Trucking
Co., United States Lines Company , Major Liquor Company, Fenestra , Inc., Feuer
Transportation Inc. and Colgate Palmolive Company, to engage in, strikes or con-
certed refusals in the course of their employment to use, process , transport , or other-
wise handle or work on goods, materials, or commodities , or to perform any service
in connection with the handling or transporting of Riss' freight or truck trailers,
thereby engaging in unfair labor practices within the meaning of Section 8(b) (4) (A)
of the Act.
The answer of the Respondents admit certain allegations of the complaint but
denies the commission of any unfair labor practices.
Pursuant to notice , a hearing was held before the duly designated Trial Examiner
in Newark , New Jersey , on April 7, 8, 9, 10 , and 28, 1959 . All parties were repre-'
sented by counsel and participated in the hearing. Full opportunity was afforded
each party to be heard, to introduce evidence relevant to the issues , to argue orally
upon the record ( which all parties waived ), and to file proposed findings of fact
and conclusions of law or both and to file briefs . Briefs on behalf of the General
Counsel , the Charging Parties, and the Respondents were received on June 15, 1959!
Upon the entire record in this case, and from his observation of the witnesses and
upon careful consideration , the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE CHARGING PARTIES
The complaint- alleged, the answers admitted, and the Trial Examiner finds that
Riss and Co., Inc., a Delaware corporation whose principal office is located in North
Kansas City, Missouri, and whose branch offices and terminals are located in various
cities of the United States including South Kearny, New Jersey, is engaged as a
common carrier in the transportation of freight to, between, and through various
States of the United States, including the State of New Jersey. Riss' annual revenue
derived from its interstate transportation of freight is valued at in excess of $1,000,000.
The Pennsylvania Railroad, an interstate railroad, transports inter alia truck trail-
ers, including.those consigned to and by Riss, to and from a terminal maintained by
the Pennsylvania Railroad at South Kearny, New Jersey.
At all times material herein, Harvey Redden, Inc., herein called Redden, has been
engaged, pursuant to a contract with Pennsylvania Truck Lines, an affiliate of The
Pennsylvania Railroad, in loading and unloading truck trailers upon and from flatcars
at The Pennsylvania Railroad South Kearny terminal. Redden's annual revenue from
its services pursuant to said contract is valued at in excess of $100,000.
The complaint alleges, the answers admit, and the Trial Examiner finds that Riss,
The Pennsylvania Railroad, and Redden, and each of them are, and at all times ma-
terial herein have been, engaged in commerce within the meaning of Section 2(7)
of the Act.
II. THE RESPONDENTS INVOLVED
-Respondents Local 560, Local 641, and Joint Council No. 73, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
and each of them, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The primary dispute
Riss operates its freight trucking service over some 30,000 miles of highway in 26
States under Interstate Commerce Commission certified authority. Also as a part
of its service Riss engages in what is called "piggyback" operations whereby Riss
picks up local freight by motor carrier in one section of the United States, loads it
onto a Riss trailer which it delivers to The Pennsylvania Railroad in that section of
the country, which then loads the Riss trailer onto a railroad flatcar and transports
it by 'rail to another section of the country, where the trailer is picked up by a Riss
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tractor from The Pennsylvania Railroad and the freight therein is then delivered by
Riss locally.
As an integral part of these operations Riss has a freight terminal, known as the
Riss terminal, in South Kearny, New Jersey, which is adjacent to, and within sight
of, the railroad yards which The Pennsylvania Railroad utilizes as its terminal for'
piggyback operations in the area.
Prior to November 10, 1958, Riss employed some 20 drivers at its Riss terminal
for cartage service, i.e., local pickup and delivery service of freight carried by Riss,'
along with some 15 employees who were engaged in platform work at said terminal.
Until August 31, 1958, these employees were represented by Local 560 which had'
a collective-bargaining contract covering them with Riss. When this collective-
bargaining contract expired by its own terms on August 31, 1958, it was not, in the
words of William L. Nahrgang, vice president in charge of Riss' eastern operations
which included the South Kearny terminal, "renewed."
Apparently regardless of the expiration of this agreement the Riss employees con-
tinued to work for Riss until November 10, 1958, when by contract with Riss a com-
pany called South End Cartage Company, herein referred to as SE, undertook to
perform all the cartage and platform work at and from the Riss Terminal for Riss.
SE employed all the former Riss employees, both cartage and platform employees,
who were during this period of time represented by Local 641. The record is silent
as to whether SE entered into a collective-bargaining agreement with Local 641.
:This state of affairs continued until January 10, 1959, when, according to Nahrgang,
the agreement with Riss was -terminated by the action of SE because of financial
difficulties.
According to Nahrgang, on or about January 11, 1959, Riss entered into "a written
memorandum and an oral agreement, there is no signed contract" with Cartage and
Terminal Management Corporation of Detroit, Michigan, herein called "C & T,"
whereby C & T undertook to perform all local cartage and platform work for Riss
at the Riss terminal?
At or about this time one Arthur R. Tisch,3 the only employee or official of C & T
mentioned in this record as ever having been at the Riss terminal, appeared at said
terminal and began entering into two types of agreements with individual drivers,
none of whom had been employees of Riss-SE; The first of these agreements was
some sort of a sale-lease arrangement whereby the individual drivers undertook to
purchase one of the Riss tractors with the Riss name still on the body thereof. The
second agreement, called a "Cartage Agreement," set forth the cartage rates per
hundredweight of freight delivered which was to be paid these drivers for such pickup
and delivery services performed for C & T.4 According to the terms of the Cartage
Agreement the driver was to pay "all costs of operations" including welfare and pen-
sion fund payments, whereas C & T agreed to furnish and pay for "public liability
and property damage and cargo insurance" as well as "workmen's compensation
insurance" while the driver "is operating in its service "
The tractors involved in the sales-lease arrangement were the same tractors as
formerly used by Riss and SE with the Riss name still upon the body of the tractor.
These tractors were garaged generally at,the Riss terminal but the operators were
permitted, if their fancy so dictated, to garage them at their individual homes. '
The General Counsel and the Charging Parties referred to the drivers who executed
these two agreements with Tisch as "owner-operators" and/or "independent con-
tractors" but objected strenuously to any further examination of their actual status
as "immaterial."
According to Nahrgang, C & T commenced operations at the Riss terminal on
January 12. - On that date Donald Foster, at all, times a Riss employee and the only
dispatcher at the Riss terminal as well as the only other Riss employee stationed at
the Riss terminal besides Terminal Manager George E. Van Quren if the General
Counsel and the Riss theory-regarding the owner-operators and/or independent
contractors is correct, dispatched an alleged owner-operator and/or independent
contractor, who for brevity's sake, will herein be referred to as C & T drivers, on a
local cartage haul with Riss freight. One-half hour later Local 641 and-the Riss-SE
drivers began picketing the entrances to the Riss terminal and the labor dispute
between Riss and the Teamsters became public knowledge.
However, on January 13, 14, and 15, Dispatcher Foster, who at all times material
here made up the work schedules to and from the Riss terminal, dispatched only the
6 Not even the so-called written memorandum was offered in evidence during the hearing.
8 Sometimes spelled in the record as "Tish."
* Tisch gave these drivers copies of the "Cartage Agreement," but not of the sales-lease
arrangement. Tisch did not appear as a witness at the hearing
LOCAL 560,.INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1339
old Riss-SE drivers driving Riss tractors who, in the words of George E.,Van Quren,
the Riss manager in charge of the terminal and of sales and operations there, deliv-
ered the "many hundreds of thousands of pounds" of Riss freight which had accumu-
lated at the Riss terminal "in order to clean out the terminal:" During this 3-day
period Dispatcher Foster used none of the C & T drivers while Tisch sat around the
terminal admittedly doing "nothing." For these 3 days there was no picketing.
-Van Quren, who as the manager of the Riss Terminal was responsible for the
safe delivery of all this accumulation of valuable Riss freight, testified on the witness
stand that, while he knew that the freight was being delivered during this period
by these Riss-SE drivers and also that the drivers had not been paid for their services
during this 3-day clearing out operation, he did not know, by whom these drivers
had been employed during that period. That the man responsible for this valuable
freight and its safe delivery could sit by and see it being removed from his custody
and control without knowing who was responsible for its safe delivery is so absurd
as to make this testimony unbelievable .5
Beginning on January 16, and continuing thereafter, Riss Dispatcher' Foster has
dispatched only C & T drivers in "their" tractors bearing the Riss name in the local
cartage of Riss freight to and from the Riss terminal. At, all times since January
16 the C & T drivers have been under the full and exclusive orders, 'directions, and
control of Riss Dispatcher Foster and, of course, his superior, Van Quren, as
operations manager. So far as this record discloses Tisch has exercised no control
or supervision over said C & T drivers. So far as the testimony in this record
discloses the only function of Tisch was in procuring drivers to execute the two C & T
documents mentioned heretofore. Thereafter Tisch physically dropped out of sight.
Since January 16, 1959, Local 641 and the Riss-SE drivers have continuously
maintained a picket line at the' Riss terminal. As will appear some of these Riss-SE
drivers who have been picketing at the Riss terminal have followed the tractors
and trailers. driven by the C & T drivers in the local cartage of Riss freight. On
occasion Local 641 has picketed at the premises of third-party employers while said
tractor and trailers were present.6
At the hearing the General Counsel conceded upon the record that the allegations
of the complaint were limited to those activities of the Respondents which took place
away from the Riss terminal and that he was not seeking any finding of the com-
mission of an unfair labor practice for any activities of the Respondents at said
Riss terminal. At the hearing Riss appeared to join in this concession.
However, the first paragraph of a brief entitled "Post Hearing Memorandum of
Charging Parties Riss and Co., Inc., and The Pennsylvania Railroad," over the
signature of Louis Silver as "attorney for Riss & Co., Inc. and on behalf of The
Pennsylvania Railroad," ,7 reads as follows: "The complaint herein charges Local
641, Local 560, and Joint Council No. 73, International Brotherhood of Teamsters,
with violations of Section 8(b)(4)(A)'of the Act in that on and after January 12,
1959, they themselves refused to handle freight and tractor trailers of Riss & Co.,
Inc., and also induced and encouraged employees of various other employers to
refuse to handle freight and tractor trailers of Riss & Co., Inc."
The above italicized phraseology makes it appear that Riss now is either attempting
to renege on the above concession' and to bring the picketing of the Riss terminal
definitely into issue or else that Riss has completely misconstrued Section 8(b) (4) (A)
because that section of the Act very clearly makes it an unfair labor practice only
when a labor organization or its agents induce or encourage employees of a neutral
secondary employer to refuse to do certain specified things. The above italicized
words clearly appear to include within their orbit the primary activities of the
strikers against the primary employer at the Riss terminal.
This extension of the issues by Riss over and beyond those framed in the complaint
and by the concession of the General Counsel at the hearing once again makes it
necessary to consider the status of the C & T drivers despite the fact that throughout
the hearing the General Counsel and Riss stoutly maintained that the stp tus of such
personnel was "immaterial'!' to the issues although just as"stoutly they both insisted
that such drivers were "owner-operators" and/or "independent contractors."
e Other features of the testimony of Van Quren will be discussed infra.
fi The General Counsel states flatly in his brief that there are only two incidents of
what he refers to as "patrol picketing"-at Major Liquor and U S Lines As Van Quren
apparently testified to similar patrol picketing at Feuer Transportation, the General
Counsel also appears skeptical of the testimony of said Van Quren.
P At the hearing Silver announced his appearance as "counsel for Riss and Company,
Inc."
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As found above these drivers signed two agreements with Tisch of C & T, one
relating to the sale-lease of Riss tractors and the other relating to the rates of remu-
neration per hundredweight of freight hauled. The only two such C & T drivers
who appeared as witnesses at the hearing acknowledged that they had executed
these agreements with full knowledge of, and because of, the existence of the labor
dispute between Local 641 and Riss which prevented Riss from performing its own
local cartage with its own employees. It is clear that, although the dispute did not
break into the open until the picketing of January 12, this dispute between the
Respondents and Riss had been in existence for some period of time, probably
since August 31, 1958.8 Although no official of C & T testified at the hearing, it is
probably a fair inference from the almost simultaneous entering into this "written
memorandum and oral agreement" between Riss and C & T and the outbreak of
picketing at the Riss terminal that a finding could be made that the Riss-C & T
contract was entered into with full knowledge of, and because of, the existence of
the labor dispute preventing Riss from delivering its own freight. However, as
both the independent contractors and/or owner-operators here involved admitted
having signed their agreements with C & T with full knowledge and because of the
existing labor dispute, such a finding as to C & T becomes unnecessary here. In
other words both C & T drivers involved in the incidents at issue here entered into
their arrangements with C & T because of and for the purpose of handling the struck
work at the Riss terminal which but for the existence of the labor dispute of which
they had knowledge Riss could have handled with its own employees. Thus these
so-called owner-operators and/or independent contractors were not the type of
neutral employers whom Section 8(b)(4)(A) of the Act was designed to protect.
By intentionally accepting this struck work of Riss with full knowledge of the
situation the owner-operators and/or independent contractors deliberately stripped
themselves of their neutrality in this labor dispute and became allies of Riss which,
under the authority of decided Board cases, gave Respondents the same right to
picket such allies as is permissible against the primary employer without violating
Section 8(b) (4) (A) of the Act.9
In Truck Operators League of Oregon, 122 NLRB 25, one of the Board's more
recent pronouncements on the matter, the Board had this to say:
We find, therefore, that the Union's picketing of the "ally" truckers here to the
extent that they were acting as "allies" was afforded the same protection by
the Act as if such picketing had been conducted against the primary employers
themselves; and that so long as Congress chooses to make common carriers
subject to the complete coverage of the Act this Board, charged solely as it is
with the administration of this Act, may not deny this protection to the Union,
without regard to whether the "ally" truckers were under a possible obligation
under other laws not to refuse to make the picketed deliveries.
The General Counsel also contends that the ambulatory picketing here was
of the type proscribed under the Washington Coca-Cola doctrine.'() This doc-
trine, as recently restated, is that picketing at the premises of a secondary
employer is per se for an unlawful object where a primary employer has a
permanent place of business at which a union can adequately publicize its labor
dispute. [Citing Teamsters, Chauffeurs, Warehousemen and Helpers Union,
Local 386, et al. '(California Association of Employers), 120 NLRB 1161.]
As an "ally" stands in the shoes of the primary employer, we hold that the
Washington Coca-Cola doctrine applies to an "ally" situation.il However, in
8 Judicial notice of the files of the Board discloses that on January 28, 1959, Local 641
filed charges involving Section 8(a)(1) and (3) against Riss and C & T growing out of
the alleged actions of those companies on January 16, 1959, relating to the Cartage
Agreement with C & T drivers On April 29, 190059, the Regional Director approved
Local 641's request to withdraw said charges which was dated April 24, 1959, and during
a recess in the present hearing
8Doud v Metropolitan Federation of Architects, etc. (Project Engineering Company),
75 F. Supp 672 (D C , 'N Y , N L R.B v. Business Machines and Office, Appliance
Mechanics, etc, Local 158 at al (Royal Typewriter Co ), 228 F 2d 553 (CA. 2), setting
aside 111 NLRB 317, Board pet for cert denied 351 U.S. 962; International Die Sinkers
Conference, etc., et al (General Metals Corporation), 120 NLRB 1227, and General
Teamsters Local No 321, International Brotherhood of Teamsters, etc (Truck Operators _
League of Oregon), 122 NLRB 25
i8 107 NLRB 299, enfd 220'F 2d 380 (C A , D C )
Citing Shopmen's Local Union No. 501, etc (Oliver Whyte Company, Inc.), 120 NLRB
856, and General Metals Corporation, 120 NLRB 1227.
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1341
the instant case, the General Counsel failed to adduce evidence to show that
there was inducement and encouragement of employees of secondary employers.
General Counsel and Riss in their briefs argue that the Respondents here must
be limited in their picketing to the Riss terminal as the permanent place of business
of C & T and of the C & T drivers and, therefore, "an adequate place" at which
the Respondents could publicize their dispute with them. It is obvious that the
Respondents' dispute also included the C & T drivers.
This argument might well be valid if the C & T drivers were Riss employees or,
perhaps, even C & T employees, but this status General Counsel and Riss deny
vigorously by insisting that such drivers were owner-operators and/or independent
contractors. This record discloses no "permanent place of business" for any of
these C & T drivers adequate for the purpose mentioned. In fact the only place of
business of any kind any of them appear to have had is in the cab of the tractors
in which they were pulling Riss trailers and in which they acquired some right, title,
and interest apparently under the C & T sale-lease contract involving these same
tractors. Therefore, unless the section of the Act which guarantees the right to
strike and consequently the right to publicize a labor dispute may be completely
nullified by the "transparent contractual device" 12 of a primary employer contracting
with so-called "owner-operators and/or independent contractors" having no perma-
nent place of business, it would appear that Respondent Unions should have the
right to engage in ambulatory picketing of these allied "independent contractors" at
the only available place of business of such allied owner-operators, to wit, the
tractors in which such operators have some right, title, and interest and with which
they were performing work which but for the labor dispute Riss would have
performed for itself. Of course in order to minimize the area of dispute as far as
legally possible the principles -set forth in the Moore Dry Dock Company case, 92
NLRB 547, should, be made applicable to this ambulatory picketing. The Trial
Examiner so finds. This finding appears to be in full accord with the Board's
decision in the Truck Operators League of Oregon case, supra.
Accordingly, it is hereby found that the Respondent Union, in order to publicize
this dispute with Riss and with its allies, the C & T owner-operators and/or inde-
pendent contractors who had been brought into this conflict as allies in the primary
dispute by Riss, had the right to engage in properly conducted ambulatory picketing
of the Riss tractors in which the C & T drivers claimed some right, title, or interest.
It is also found, of course, that the Respondent Unions had the legal right at all
times material herein to picket the Riss terminal, the admitted primary place of the
dispute.
It is, therefore, apparent that the refusal of Respondent Unions "to handle freight
and motor trailers of Riss and Co., Inc.," is, contrary to the Respondent's brief, not
at issue here because the Riss-SE drivers were there engaging in primary strike
activity against the primary employer at its place of business or, at the very worst,
were only inducing and encouraging allies of the primary employer, neither of which
is a violation of Section 8(b) (4) (A).
So now we turn our attention, in accordance with the complaint and the con-
cession of the General Counsel at the hearing, to those incidents occurring away
from the Riss terminal and at the premises of-third-party employers.
B. Incidents not involving picketing
1. Harvey Redden, Inc.
As noted heretofore, The Pennsylvania Railroad has its "piggyback" terminal at
South Kearny, New Jersey, where it loads motor carrier trailers on flatcars for rail
transport to western points and where similar trailers are unloaded from flatcars after
such rail transport from western points and delivered to motor carriers. At this
terminal the trailers, or boxes, are loaded onto and unloaded from Pennsylvania
flatbeds by employees of Harvey Redden, Inc., herein called Redden, which per-
formed this service under contract with the railroad. At all times material here,
the Redden employees were members of, and represented by, Local 560. The shop
steward thereof at Redden was one William Witt.
By letter dated January 27, 1959, on the letterhead of Joint Council No. 73 and
over the signature of its president, Lawrence McKinley, the attention of all its
constituent locals, which included both Local 560 and Local 641, was called to the
dispute of Local 641 against "Terminal Cartage and Management Corp.,' Pennsyl-
vania Avenue, South Kearny, and Riss and Co., and South End Cartage Company."
32 A phrase used in the Riss brief in another connection.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 28, Robert Cushing, treasurer of Harvey Redden and in '-full charge
of,its operations, received a telephone call-from Steward William Witt who stated
that he had been instructed by his union delegate that the Redden employees,were
not to handle Riss trailers. During this conversation Witt agreed the employees
would handle all Riss trailers already in transit in accordance with the contract under
which the parties were working.
Under this contract the following limitation on the authority of shop-stewards
was made explicit as follows: _
The employer recognizes the right of the union to designate a shop steward
from the employees' seniority list to handle such union business as may from
time to time be delegated to him by,the union. .
Shop stewards have no authority to take strike action, or any other action,
interrupting the employer's. business in violation of this agreement, or any
action in violation of law except as authorized by official action of the union.
The employer recognizes this limitation upon the authority of shop stewards.
Cushing acknowledged that he was well aware of this contract limitation on the
authority of stewards.
The Redden employees continued to handle Riss trailers at the piggyback terminal
until February '2, 1959.
However,. on Monday, February 2, five Riss trailers appeared on flatcars in the
piggyback terminal. 'All other trailers received in that terminal that day were
handled by Redden employees except these five Riss trailers which remained upon
their flat beds throughout the day despite a request by Cushing of the employees
that they be removed and a refusal to do so by Witt who again stated that he
would not handle Riss trailers without permission from the union delegate.
Although both Witt and Cushing attempted to get in touch with the delegate of
Local 560, they were unable to do so as said delegate was said to be on vacation.
The trailers therefore remained upon the flatbed and were not unloaded.
Late on the afternoon of February 2, The Pennsylvania Railroad, being unable to
remove said Riss trailers from the flatcars, pulled them out of this piggyback termi-
nal and rerouted them to the Philadelphia piggyback terminal.13
Thereafter, and until a temporary restraining order was issued on February 10,
1959, by the U.S. District Court for the District of New Jersey at the request of
the Board, no other Riss trailers were routed to the South Kearny piggyback
terminal.' Since the issuance of such restraining order, the Redden employees have
handled Riss trailers at the South Kearny piggyback terminal as they had done prior
to the February 2 incident.
No pickets or union officials appeared at the piggyback terminal.1 But Local 641
pickets at the Riss terminal could be and were seen by the Redden employees from
the Pennsylvania piggyback terminal.
In addition to, the -above testimony, the General 'Counsel produced one Joseph
Skennion, who had executed an affidavit for a Board agent on February. 4, 1959,
stating in part:
William Witt, a driver employed by Redden, is the shop steward. Last Friday,
January 30, 1959, in the afternoon Witt told all the drivers of Redden working
in the South Kearny yard not to take trailers off the flatcars if the trailers were
consigned to Riss and Co. He told me too, not to handle any of the Riss
trailers and I have not since that time.
On the witness stand Skennion.repudiated the above-quoted statements and testi-
fied that there -was no such meeting and,that he had received no such orders from
Witt." He testified that he-had heard about the Riss trailers over the "grapevine"
or through "B.S." from other drivers and imerely, assumed that Witt as the shop
steward was involved. .Neither Witt nor any of the other Redden employees
testified. °- `
Skennion admitted having told the field examiner all the facts contained in the
affidavit except those quoted above.
- Unfortunately the second sentence of the affidavit above quoted has been altered
by the striking out of its original opening words "I don't believe" and the capitaliza-
tion of the following word "He,".changes which Skennion apparently initialed.
The facts show that SkennionIand Witt did not work the same shift, Skennion
working the morningtshift and-Witt-the evening.
- Due toy all these factors the Trial Examiner must consider the Skennion evidence
so suspect "as to be worthless.: With neither side thereafter attempting to .confirm
Is These or other Riss trailers from the-Philadelphia piggyback terminal appear, again
in the incident involving Uhrik Transportation Company.
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1343
either version of Skennion's evidence, the Trial Examiner cannot make a finding
for the General Counsel as the burden of proof which rested upon him has not
been satisfied.
Respondents argue that Witt's authority as shop steward was so limited by the
terms of the contract as to make any statement which he made to Cushing in-
admissible against the Respondents here. It is true that the scope of authority of
Steward Witt was explicitly limited by the contract and that Redden Official Cushing
knew of such limitation. .
However, in view of the letter of Joint Council No. 73, dated January 27, 1959,
the contractual limitation of authority on Witt does not appear applicable here
due to the fact that said letter, proves that the strike of Local 641 against Riss, SE,
and C & T had been officially authorized by Local 641 and Joint Council No. 73.
Therefore, , Witt was acting within the ,scope of his stated authority in telling
Cushing that the Redden employees had been ordered not to handle Riss trailers
by Local 560.
Because of his agency status as such steward, Witt's statement to Cushing that
Local 560 had ordered the employees not to handle Riss trailers is removed from
the hearsay category and becomes an admissio n against interest binding upon
the Union. The Trial Examiner so finds.
Thus there now being legal proof in the record due to the Cushing testimony
that he had been told by Union Steward Witt that the Union, Local 560, had
ordered the Redden employees not to handle Riss trailers,14 the General Counsel
has proved a violation of Section 8(b) (4) (A) in that Local 560 through its delegate
and shop steward induced the employees of Redden, a secondary neutral employer,
to concerted action by ordering them not to handle the trailers of Riss, the primary
employer. So the violation by, Local 560 in the Redden incident is clear.
But the General Counsel contends further that this incident proves a violation
by Joint Council No. 73 by reason,of its letter of, January 27 calling the attention
of its constituent locals to the existence of a dispute between Local 641 with Riss,
SE, and C & T. This letter, however, constitutes nothing more than the dissemina-
tion of the information to interested parties of the fact that a primary dispute existed
between Local 641 and Riss, et al., and of its official authorization by Joint Council
No. 73. The letter called for no action by the recipient of said letter-unless one
accepts the theory advanced by Riss that this letter constitutes " a `signal ' for un-
lawful conduct, where the signal calls for a secondary boycott." The Trial Ex-
aminer is unable to see where this letter calls for any action, much less illegal sec-
ondary action. The requested interpretation of this letter of Joint Council No. 73
would run afoul of the Constitution of the United States, and the amendments
protecting the freedom of the press and the right of assembly. If those amend-
ments mean anything, American labor unions are not required to bury their heads
in the sand like the well-known ostrich. The "nod or a wink" case involving the
UMW and John L. Lewis, its president,15 involved a number of additional facts
-not present here, such as, to mention one, that it is traditional with the UMW not
to work without a' contract, which was not the case here. -
That this letter was, in fact, no signal is further proved by the fact that Local
-560 was the only constituent local of said Joint Council No. 73 which took any
action as a result of the receipt of this letter. The error committed by Local 560
was in*ordering its members-who were working for a neutral employer to become
involved in the dispute involving Local 641 with Riss, SE, and C & T.
The Riss brief further would hold said Joint Council No. 73 liable because, by
authorizing the primary strike of Local 641 against Riss, it thereby became respon-
sible for "Local 641's subsequent illegal acts under that authority.", The short
answer to this contention ofRiss is that the action of Joint Council No. 73 was to
authorize a primary strike-not to authorize subsequent illegal secondary action.
The Riss argument here runs contrary to all ordinary rules of law.
As admittedly this letter of January 27 is the only evidence against Joint Council
No. 73 presented here, the Trial Examiner must recommend that the complaint be
dismissed in toto as to Joint Council No. 73.
Under the evidence presented here there was no inducement or encouragement of
Redden employees by Local 641 other than that which may possibly have resulted
-from the fact that the Redden employees could and did see the.primary and legal
picket line of Local 641 -around the Riss terminal. The existence of such a primary
sand legal,picket line around the primary employer's place of business cannot be held
14 No credibility problem is involved here as Witt did not appear as a witness to deny
malting this statement. ' - - -
' United Mine Workers V. U.S,z24 LRRM 2111.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to constitute illegal "inducement and encouragement" of employees of neutral,
secondary employers who may see, and act upon, the primary pickets at the primary
situs of the dispute. Hence this complaint must also be dismissed as to Local 641
so far as it relates to this Redden incident.
2. The Uhrik Transportation incident
On February 20, 1959, John Laxer, shop steward for Local 641 at the A. M.
Uhrik, Inc., Jersey City freight terminal, informed Uhrik's production manager at
said terminal, Robert A. Kline, that the Uhrik employees could not move Riss
trailers because of the strike at Riss. Kline thereupon telephoned to Michael
Calabrese, business agent of Local 641, who informed Kline that the Riss trailers
at the Uhrik terminal could not be moved and that, if Uhrik used Riss trailers for
-its own business, those trailers would be stopped to see if Riss freight was being
moved and, if it was, the Uhrik barn would be tied up-by strike, presumably.
At or about this same time Steward Laxer informed all,the Uhnk employees that
Riss trailers were to stay in the Uhrik yard and were not to be moved by them
anywhere. Thereafter, when Kline-ordered an employee to move a Riss trailer so
that it could be picketed up by Riss, the employee refused to move said trailer.
On the surface this would appear to constitute a clear violation of Section
8(b) (4) (A) by Local 641 by reason of the inducement and encouragement of the
employees of Uhrik through Local 641 orders relayed by Steward Laxer to the
Uhrik employees not to move Riss trailers.
The above evidence was given by Robert J. Kline as a witness for the General
Counsel. During his examination on April 9, 1959, it also developed that, beginning
about December 1958 or later, an arrangement was entered into between Riss
and Uhrik whereby•Uhrik would pick up Riss trailers from the railroad piggyback
terminal in Philadelphia, transport the Riss trailer behind Uhrik tractors to the
Uhrik terminal in Jersey City, from whence Uhrik would make local deliveries to
the freight consignees thereof for Riss. On this occasion on the witness stand Kline
testified positively that Uhrik secured this freight from Riss because Riss could
not make the deliveries itself by reason of its labor dispute at South Kearny with
Local 641. As illustrative of Kline's testimony on this occasion are the following:
Q. [By Trial Examiner.] Was that during a period of time when the Riss
trailers were also coming into -the South Kearny yard to the Pennsylvania
Railroad terminal?
A. I don't know that Riss did outside of that but they could not get rid of
their LTL cargo and that's why they gave it to us.
Q. What do you mean, they could not deliver it?
A. They could not deliver it, none of it; due to their labor dispute they
could not deliver their LTL truck, less-than-truckload shipments, 100 pounds,
200 pounds, and so forth. If you-get a trailer load of about 50 or 60 bills on
it, we called that LTL. They [Riss] would drop -a trailer at our terminal in
Philadelphia and we hook up a Uhrik man in it and bring it to Jersey City
and we break it down and deliver it for which we got paid so much a
hundredweight.
Q. Yes, and that arrangement was made because Riss could not, deliver it
up here due to a labor dispute?
A. That's right. -
Q. [By Mr. Silver.] Were you aware, for example, that in December, when
you testified you first entered into this relationship, whether there was any
dispute going on in Riss & Co. or not?
A. Sure. That was the reason we got the freight.
* * * * * * *
Q. Is this a matter out of your personal knowledge, or did you just deduce
that? I am trying to give the alternative.
A. I know for a fact that's the reason we moved the freight.
* * * * * * *
Q. [By Mr. Ryan.] When did this arrangement end with Riss or has it
ended?
A. It has ended. It ended the day we were told we could not move any of
their freight.
This testimony proves that but for Riss' labor troubles with Local 641, the Riss
freight in the New Jersey area which was being delivered by Uhrik from December
to February 20, 1959, would have been delivered by Riss itself and that there can
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1345
be no question but that Uhrik accepted the arrangement with Riss with full knowledge
that it was doing work for Riss which Riss could not do for itself because of the
labor difficulties.
Under this testimony there can be no question but that under the principles set
forth in the General Metals case, supra, Uhrik had stripped itself of its neutrality,
had allied itself with the primary employer Riss, and, thus, became a part of such
primary employer and subject to the same strike activity as the primary employer
Riss so that there would be no violation of Section 8(b) (4) (A) through any
inducement of the Uhrik employees by Local 641 or the other Respondents.
But on April 28, 1959, Kline returned to the witness stand and attempted to change
his testimony to make it appear that Uhrik and Riss had had a business relationship
since sometime in 1957,16 and that he had "misunderstood" certain questions put
to him on April 9 about when, and how the relationship between Riss and Uhrik
began and thought he was answering how this relationship had ended.
Kline's testimony on this second occasion was such that he was either not telling
the truth on one occasion or the other. Both could not be true.
On his first appearance as a witness, Kline had been asked about the commence-
ment of the Uhrik-Riss relationship by the Trial Examiner and by at least two
counsel. He was very positive in his answers as shown above and gave every
appearance of a witness who had nothing to fear as he was telling the truth. 'In
his subsequent, or corrective, testimony Kline was a completely different appearing
witness,- in addition to getting himself caught in numerous untruths, one of which
had become a matter of record the morning of April 10, the morning after his
original testimony, i.e., the question of whether Kline had had a conversation with
Attorney Silver immediately following his original appearance on April 9. Kline
on his second appearance on the stand originally denied but later was forced by
question of Attorney Silver to admit this and other conversations. In addition,
although Kline testified he had refreshed his memory from Uhrik's records, he made
no attempt to corroborate this naked assertion with any such records. Under these
circumstances, the Trial Examiner has no hesitation in finding that Kline was
telling the truth in his appearance on April 9, but not on April 28.
Accordingly, the Trial Examiner must find in accordance with the facts that
Uhrik so allied itself with the,primary employer Riss that Local 641 did not violate
Section 8(b) (4) (A) by its inducement of the employees of Uhrik. Consequently,
the Trial Examiner will recommend the dismissal of the complaint as, regards the
Uhrik incident as to all Respondents.
3. The Feuer Transportation incident
On or about February 18, Riss dispatcher, Donald Foster, dispatched "owner-
operator" Hermann with a helper named Reginald Foster 17 to Feuer Transportation
warehouse with an empty Riss trailer to.pick up a load of vitamin pills. As Hermann
parked the tractor and Riss trailer across the street from the Feuer loading platform,
his helper and three striking Riss-SE drivers,is who had followed Hermann, simul-
taheously approached Jeremiah Lynch who, as the only Feuer employee at the
warehouse, works as a platform man receiving freight for Feuer and is in sole
charge of the warehouse in the absence of his boss, only other Feuer employee
stationed at the warehouse. At the time of this incident Lynch's superior was absent
so that Lynch was in charge of the warehouse for his employer, Feuer.19
As these men reached Lynch, Hermann's helper, whom Lynch referred to as
"Van Quren," asked where Feuer wanted the empty Riss box [trailer] placed. Two
of the strikers then spoke up, told Lynch about their labor troubles at Riss, and
stated, "We are having trouble at Riss, will you please not accept the box [trailer]."
'As Lynch did not want to get involved in this matter, he immediately telephoned
his superiors at the Feuer headquarters in Yonkers for orders after explaining the
situation to them. Lynch's superiors in Yonkers then informed Van Quren, or the
helper, that Feuer Transportation would not accept the Riss box as it did not want
pickets at its warehouse. Hermann thereupon drove the tractor and Riss trailer
back to the Riss terminal on orders of Riss.
19 In his original testimony Kline recalled business dealings between these two concerns
to the year 1953.
11 Hermann neither hired nor paid this helper.
1e Identified by Van Quren as strikers Fusco, Forino, and Dick.
"Lynch is a member of an I.L.A. union
560940-61-vol. 127-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During this incident Hermann purported to see the pickets carrying signs under
their arms reading, "On strike-They're- scabs from Local 641." Van Quren also
-testified that he saw picket signs in the office. Lynch saw no such picket signs.
Van Quren purported to see, the - pickets talking to other Feuer "employees," a
phenomenon which appears to have been quite impossible as Lynch was the only
Feuer employee present at this warehouse at this time.
As Section 8(b)(4)(A) only interdicts the inducement' and -encouragement of
"employees," the facts of 'this episode discloses no violation of said section for the
reason that the only inducement or encouragement, if any, proved here was an appeal
to the man then in charge of the warehouse for Feuer and authorized by Feuer to
deal with the public having business at its warehouse.20 Therefore the appeal not
to accept the Riss trailer was made to the management of Feuer-not to Feuer
employees as required for a violation of this section of the Act.
Accordingly, the Trial Examiner must recommend that the complaint as it relates
to this Feuer incident be dismissed as to all Respondents.
- 4. The Colgate Palmolive incident
On February 20, a Riss trailer was scheduled to arrive at the warehouse of
Colgate Palmolive for a pickup at 3 p.m. The Riss trailer, pulled once again by the
tractor of "owner-operator" John Hermann, arrived at the warehouse about 5:35 p.m.
that day. It had been followed from the Riss terminal to its destination by men
who had been picketing in front of the Riss terminal.
Upon arrival at Colgate Palmolive the pickets and Hermann all started for.the
dispatcher's office where the night clerk and dispatcher, John Hine, was on duty
for Colgate Palmolive. The strikers beat Hermann to the dispatcher's window,
informed Hine that Local 641 was having labor troubles with Riss, asked Hine not to
give Riss the load, and threatened to set up picket lines if Colgate Palmolive did
give-Riss. the load. Hine thereupon called his superior asking what he should do
and, after consultation, sent the strikers to another Colgate official 'named
'Browning.21 Thereupon, Hermann stepped up to 'the dispatcher's window and
inquired if he was going to get the load for Riss. Hine informed Hermann that he
would have to wait to see what Hine's superiors. decided to do about the matter.
Once again Hermann saw picket signs under the arms-of the men from Local 641.
This time, according to Hermann, the signs read something like "On Strike. These
scabs are working for Riss" and, with some urging from counsel the numbers "641"
also appeared on the signs. However, Hine saw no such signs or, indeed, any signs.
About 5:55 that day, McCauley, general manager for Colgate Palmolive, ordered
the men from Local 641 off the premises and then told Hermann that Colgate
Palmolive was not going to give him the Riss load. Hermann then left Colgate
Palmolive, and returned empty to the Riss terminal.
Once again the facts proven show -no violations by any Respondent of Section
8(b) (4) (A) because there was no inducement or encouragement of employees.
Hine was the night dispatcher authorized and instructed by his employer to deal
with the drivers and the public regarding freight shipuments and,,as such, a super-
visor or a representative of management and not the type of "employee" referred
to in that section of the Act. As Hine's duty for Colgate Palmolive required, he
referred the Local 641 men to -a higher echelon of management for their-decision
on the request, appeal, or threat by, Local,641. The section of the Act here involved
does not forbid a union or its representative from making such requests, appeals,
threats, or other "inducement or encouragement" to management representatives.22
The statute expressly forbids any such inducement being directed to employees of a
secondary employer-not to the employer himself. Therefore, the Trial Examiner
will recommend that the complaint as reflected in this Colgate Palmolive. incident be
dismissed as to all Respondents.
5. The Fenestra, Inc., incident - -
On or hbout February 24, two strikers holding signs under their arms which could
not be read approached John A. Minerella and two other Fenestra employees in
the Fenestra warehouse. Minerella was a warehouse employee for Fenestra, Inc.,
and also shop steward for Local 807 of the Teamsters Union. These men, according
20 See Ryland incident in Washington Coca-Coda Bottling Works, Inc., 107 NLRB
299, 304. 1
21 As Browning did not testify, the record is silent as to the meeting between the
strikers and Browning.
11 -
4 See Ryland episode of Washington Coca -Cola Bottling Works , Inc., supra.
LOCAL 560,'INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1347
to the ubiquitous John Hermann ,who once again was the so-called owner-operator
who had been dispatched by Riss dispatcher, Donald Foster, to deliver the Riss load
to•Fenestra, had followed him from the Riss terminal to Fenestra. These two men,
one of whom Minerella recognized as having been a Riss driver previously, told
the employees that they were from Local 641, that they were on strike against Riss
and had a legal right to, picket, and "please, it would be better if you did not unload
the [Riss] trailer'" The men also stated that they had come to picket if Fenestra
unloaded the Riss trailer.
Minerella took the two strikers to a public telephone away from the Fenestra
plant, where he telephoned Al Schrecek, business agent of Local 807, told him of
the situation, and asked for instructions. Schrecek instructed Minerella not to
unload the Riss truck., All three men then returned to Fenestra' where Minerella
-notified Fenestra's warehouse manager , C. Hoefler, of the situation related to him
by the men of Local 641. Hoefler promptly telephoned Riss and Business Agent
Schrecek. After these conversations Hoefler ordered that the Riss trailer not be
unloaded and that it be sent back to the Riss terminal.
The office man or dispatcher for Fenestra then so notified Hermann who returned -
to the Riss terminal without unloading the trailer.
In this incident-the two individuals from the Riss picket line made the mistake-
from Respondent Local 641's point of view-of approaching two or three rank-and-
file Fenestra employees and encouraging them not to handle Riss freight. Neither
Minerella or his two fellow employees were supervisors or management represent-
atives authorized by Fenestra to deal with truckers or the public in regard to freight
shipments. Thus they were not in any sense representatives of management for
that purpose. Hence the two strikers were, in fact, inducing and encouraging
"employees" of a neutral employer not to handle this freight. That the men
induced were 'rank-and-file employees of a neutral employer distinguishes this
incident from those immediately preceding. -
Therefore, if the two individuals who encouraged or induced the Fenestra em-
ployees can be found to be agents of Respondents, then it appears that there has
been iri fact a violation of Section 8(b) (4) (A).
Van Quren named the individual Riss-SE drivers supposed to have been present
at Fenestra from having had them pointed out to him by Hermann at some subse-
quent time on the picket line at the Riss.terminal. This is an unsatisfactory method
of identification at best. However, Minerella recognized one of the individuals as
having formerly been a Riss driver. He also heard the individuals identify them-
selves not only to himself and the other Fenestra employees but also over the phone
to the business agent of Local 807. Furthermore he saw enough of the signs to
recognize them as picket signs. In addition these two individuals, were engaging
in exactly the same pattern of activity which Local 641 had been engaged during its
dispute with Riss-except in this instance the individuals approached happened to
be rank-and-file employees.
The Trial Examiner is convinced that the only fair inference to be drawn from
all these facts is that the two individuals were in fact striking -Riss-SE drivers and
agents of Local 641. The Trial Examiner so finds. I
Accordingly, as-it is clear that these agents of Local 641 made the mistake-at
least from the' Union's viewpoint-of inducing and encouraging rank-and-file
employees of Fenestra to refuse to handle the Riss trailer, the Trial Examiner must
find that thereby Local 641 violated Section 8(b) (4) (A) in the Fenestra incident.
As Local 807 is not a Party Respondent here and as no other union was involved,
the Trial Examiner will recommend that the complaint as it relates to Fenestra
be dismissed as to all the other Respondents except Local 641.
C. Incidents involving picketing
1..Pier. 59
On the morning of February 20, again John Hermann was dispatched to pick up
some Singer Sewing Machine parts for Riss at Pier 59 by Donald Foster, Riss dis-
patcher. Hermann arrived at Pier 59 about 9:15 a.m. and, on,instructions of a
policeman, parked the Riss trailer and his tractor on the street some 200 or 75 yards,
according to varying estimates , from the entrance to the pier and out of the line of
trucks entering the pier. , Neither Hermann nor the other driver of another Riss
trailer got into the lines of trucks headed onto the pier through the pier entrance.
Hermann then reported to the drivers' room where he handed in-his papers which
were stamped by the inspector there and he was given the number 40 to designate
the order of his entrance onto the pier to make his pickup. About 10:30 a.m. some
unknown individual came into the drivers' room, asked the checker in charge'thereof
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Pier 59 if there were any Riss trucks there, and then stated that, if there were,
they were not to be loaded . This individual remained completely unidentified.
Hermann thereupon telephoned Foster telling him of the situation and was assured
that somebody would be over to take care of the matter.
At or about the same time Van Quren at the Riss terminal was notified by tele-
phone by Superintendent Perp of Pier 59 that the International Longshoremen's
Association on orders of its business agent , Ted Gleason , would not load Riss trailers
because of its labor dispute.
Van Quren thereupon went to Superintendent Perp 's office at Pier 59 where Perp
reiterated his statement and where ILA delegates Ahearn and Carr corroborated the
fact that ILA was refusing to load the Riss trailers and that Van Quren should
get in touch with Gleason 23
Hermann thereafter was in the drivers' room except when he went across the
street from the pier at noon for lunch until about 3:40 p .m. that afternoon when, on
orders of Van Quren , he drove the tractor-trailer empty back to the Riss terminal.
At no time during the time Hermann was at Pier 59 did he see any pickets parading
anywhere.
However Van Quren testified that he arrived at the pier about 10 a.m. in response
to the telephone calls, that there were three "pickets " at the entrance to the pier
with signs reading Riss and Co. on strike. Local 641," and that the pickets paraded
in front of the entrance from at least that time until Van Quren left the pier at
4 p.m. This testimony by Van Quren is in direct conflict with that given by Her-
mann who had to walk past the alleged pickets at least on his way to and from lunch
and who could have seen the pickets from the doorway to the drivers' room where
he stood on occasions during the day. As the testimony of Van Quren is anything
but clear that the picket signs were on actual display in front of the pier,24 the Trial
Examiner must accept the testimony of John Hermann , who was not loath to
testify from the notes he said he made at or very soon after the events he described,
that there were no pickets parading with signs nor any disturbance at the entrance to
the pier. The mere presence , of three Riss strikers at Pier 59 without more, i.e.,
without parading with picket signs or making verbal efforts to induce and encourage
employees of Pier 59, cannot be found to constitute encouragement and inducement.
Furthermore the fact that neither Perp or Nevius mentioned any Local 641 pickets
or picketing ( in the usual sense of that word ) at the pier during their discussions
that day with Van Quren corroborates the testimony of Hermann that no picketing
was being done at the pier. , Therefore, the Trial Examiner must find that there is
in this record no evidence of any picketing by Local 641 at Pier 59.
Patrick Killeen , shop steward for the checkers of the ILA at Pier 59, testified that
early on the morning of February 20 he had been instructed by ILA delegate Carr
not to handle Riss equipment and that about 3:30 p.m. an unidentified person
describing himself as a Riss picket told him on the pier that they had picket signs
(which they were carrying in their hands in such manner that the printing was not
displayed ) and were prepared to picket and tie up the pier "if the Riss trailers came
onto the pier." Upon receipt of this information Killeen testified he reported to
Pier Superintendent Perp and his assistant , Nevius, who promptly got in telephone
communication with ILA official Gleason after which , these pier officials instructed
Killeen that "the strike" was over and to go down and let the Riss trucks onto the
pier . When Killeen reported these orders to the checker in charge of the drivers'
room , it developed that the Riss trucks had already departed from Pier 59 on orders
of Van Quren.
In the absence of any evidence of "encouragement and inducement " by any of
the Respondents here, together with the General Counsel's admission that he could
not connect any of Respondents to the ILA action , the Trial Examiner must find
that there was no violation by any of the Respondents here in regard to the Pier
59 incident and, accordingly , he will recommend dismissal of the complaint in that
regard.
2. The Major Liquor incident
On February , 19, Fernando Gonzales Olevio , who became an owner-operator with
C & T on January 30, also with full knowledge of the labor trouble at Riss, drove a
Riss trailer loaded with half pints of Kentucky Gentlemen Bourbon Whiskey to the
23 At the hearing the General Counsel conceded that he was unable to prove any con-
nection or any encouragement or inducement by any of the Respondents of ILA In reach-
ing this decision.
24 It became obvious during his testimony that Van Quren used the term "pickets" as a
word to describe the ex -Riss-SE drivers who were picketing around the Riss terminal
rather than to describe a striker engaged in the act of displaying a picket sign.
LOCAL 560, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1349
Major Liquor Warehouse at Mt: Vernon, New York, and parked his equipment with
the Riss trailer outside the warehouse. Olevio reported-to Stanley Klein, warehouse
manager for Major Liquor, who informed Olevio that due to Major Liquor's own
loading and unloading schedule, the Riss trailer would have to wait until after
lunch to be handled.
About the same time that the Riss trailer arrived at the Major Liquor, Warehouse,
three men from the Riss picket line also appeared and approached Stanley Klein.
The men carried rolled up placard in such fashion that they could not be read and
stated to Klein that they were from Local 641, were striking at Riss because of a
change in operations which had eliminated them as employees, and then threatened
"if you take the merchandise, we are going to picket."
Despite numerous visits by Olevio to Klein for the purpose of discovering if and
when the Riss trailer was to be unloaded, Klein continued to stall until about 1
p.m. when with Klein's permission the Riss trailer was backed into the dock of
Major Liquor for unloading. As the trailer was backed into the dock, three or four
men from Local 641 began parading by the entrance to the Major Liquor premises
carrying picket signs reading "Riss and Co. On Strike. Local 641." The pickets
even used the restrooms at Major Liquor while carrying these signs . This testimony
was uncontradicted.
Promptly after the picketing began Klein's superior ordered Klein to get Riss
and Company on the phone to have the pickets removed.
Despite the picketing the Major Liquor employees opened the doors of the Riss
trailer and prepared to unload it when Klein's superior again called Klein to have
the unloading stopped.
Finally .about 4 p.m. Olevio was able to quote some Major Liquor official to the
effect that Major Liquor would not unload the Riss trailer to Donald Foster, Riss
dispatcher, who thereupon ordered Olevio to return to the Riss terminal. As Olevio
pulled the Riss trailer from the Major Liquor dock, the picketing ceased and the
pickets departed simultaneously with Olevio.
On the following day, February 20, Foster again dispatched Olevio to Major
Liquor with a load which on this occasion had not even been ordered by Major
Liquor. Olevio's arrival at Major Liquor on this occasion was almost simultaneous
with that of the same Riss strikers. These strikers again approached Klein and
threatened that they would picket again if the Riss trailer was backed into the dock.
Klein thereupon on orders of his superiors telephoned Dispatcher Foster of Riss and
arranged to have the Riss trailer sent to another warehouse rather than to unload
it at Major Liquor.
On this occasion there was no picketing and the only conversation had by the
Local 641 men was with the warehouse manager, a supervisor, and, therefore, not
an employee within the statutory definition.
Under the decided cases there can be no question but that the parading of the
pickets with picket signs before the premises of the Major Liquor Company on
February 19 constituted "encouragement and inducement" of the rank-and-file em-
ployees of Major Liquor, a neutral secondary employer, not to handle the merchan-
dise of Riss and Company, a clear violation of Section 8(b) (4) (A).
However, there was no encouragement or inducement of employees as required for
a violation of Section 8(b) (4) (A) on the second visit (February 20) by Riss equip-
ment because on that occasion there was no picketing and the only conversation by
the strikers was with a management official and not with employees of Major Liquor.
As found heretofore Local 641 had the right to picket Olevio's tractor as his only
place of business in order to publicize its dispute with an ally of Riss provided the
safeguards of the Moore Dry Dock decision were maintained. During the picketing
of February 19 it is clear that the picketing was carried on only during the period of
time the ally's tractor was attempting to unload at the Major Liquor dock and that
the picket signs quite clearly indicated that the dispute was with Riss and not
Major Liquor.25 But it is equally certain that the pickets did not restrict their
picket activities sufficiently closely, or at' all, to the immediate proximity of the
offending tractor.
As the picketing on February 19 was ambulatory picketing not conducted under
the safeguards of the Moore Dry Dock decision but, on the other hand, extended far
beyond those limitations in an effort to induce and encourage the employees of
Major Liquor to refuse to handle the Riss trailer, the Trial Examiner must find that
2 The Trial Examiner attaches no significance to the fact that the so-called owner-
operators were not named on the picket signs, for any such requirement would place a
premium on legal niceties and chicanery.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by this February 19 picketing at Major Liquor, Local 641 violated Section
8(b) (4) (A) at this incident at the Major Liquor warehouse. Otherwise the Major
Liquor incident must be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III , above, occurring in
connection with the operations of the Charging Parties described in section I, above,
have a close, intimate , and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondents, and each of them, is a labor organization within the meaning
of Section 2(5) of the Act.
2. On and after February 2, 1959, by inducing and encouraging employees of
Harvey Redden, Inc., to engage in a strike or concerted refusal in the course of
their employment to perform services for their employer, an object thereof being to
force or require said employer to cease using, selling , handling, transporting, or
otherwise dealing with or doing business with Riss and Co., Respondent Local 560
has engaged in unfair labor practices proscribed in Section 8(b) (4) (A) of the Act.
3. On February 19, 1959, at the warehouse of Major Liquor Distributing Com-
pany, and on February 24, 1959, at the warehouse of Fenestra, Inc., by inducing and
encouraging employees of said Major Liquor Distributing Company and of Fenestra,
Inc., to engage in a strike or concerted refusal in the course of their employment
to perform services for their respective employers, all object thereof being to force
or require said employers to cease using, selling , handling, transporting , or otherwise
dealing with or doing business with Riss and Co., Respondent Local 641 has engaged
in unfair labor practices proscribed in Section 8(b) (4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
5. Joint Council No . 73 has not engaged in any unfair labor practices.
6. Neither Local 560 nor Local 641 committed any unfair labor practice in
connection with the employees of Uhrik Transportation Company, Feuer Trans-
portation Company, Colgate Palmolive Company, United States Lines Co., or,
on February 20, of Major Liquor Distributing Company.
[Recommendations omitted from publication.]
Preferred Homes Corporation and Millmen Local 2768 , United
Brotherhood of Carpenters and Joiners of America , AFL-CIO.
Case No. 10-CA-4057. June 00,-1960
DECISION AND ORDER
On October 12, 1959, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. On April 8, 1960, the Trial Exam-
iner issued a Supplemental Intermediate Report, a copy of which is
attached hereto, affirming the findings and conclusions in the Inter-
mediate Report. The Respondent has filed exceptions to the Inter-
mediate Report and Supplemental Intermediate Report and briefs in
support of the exceptions.
127 NLRB No. 149.