Teamsters Local Union No. 5

National Labor Relations Board - Board Decisions

Mar 13, 1968

170 N.L.R.B. 288 (N.L.R.B. 1968)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union No. 5, affiliated with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers , Ind. and Altex
Ready-Mixed Concrete Corporation. Case
15-CC-323
March 13, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 15, 1968, Trial Examiner Paul E.
Weil issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions' of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Teamsters Local Union
No. 5, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers, Ind., its officers, agents, and representatives,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
' No exception by Respondent is directed to the breadth of the Trial Ex-
aminer's recommended cease-and -desist order We therefore do not con-
sider the Trial Examiner 's rationale in this connection
In the circumstances of this case , Member Fanning would not grant a
broad order
' All dates herein are in the year 1967
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: Pursuant to a
charge filed October 9t and amended October 20
by Altex Ready-Mixed Concrete Corporation,
hereinafter called Altex, against Teamsters Local
Union No. 5, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers, Ind., hereinafter called Respondent,
the complaint herein was issued on October 25 and
alleges that by picketing and other acts and con-
duct directed at Altex in furtherance of a labor
dispute with Barber Brothers Contractors, Inc.
(herein called Barber), between October 6 and 7,
Respondent violated Section 8(b)(4)(i) and ( ii)(B)
of the Act. In its timely filed answer and in stipula-
tions at the commencement of the hearing Respon-
dent admitted many of the subsidiary allegations of
the complaint but denied the allegations of unlaw-
ful activity and the conclusions that stem
therefrom.
All parties appeared at the hearing by counsel
and had an opportunity to produce evidence, ex-
amine and cross-examine witnesses, and submit
briefs. All parties waived oral argument on the
record. Upon the entire record, including my obser-
vation of the witnesses, and after due consideration
of the briefs received from General Counsel and
Respondent, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Altex is a Louisiana corporation which annually
purchases goods and materials valued in excess of
$50,000, shipped directly to it in Louisiana from
points outside that State, and is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Commencing on or about September 26, Respond-
ent engaged in picketing Barber at its plant in
Baton Rouge with signs stating that Barber was
nonunion. Altex, which was located across the
street from Barber and whose owner is an old
friend of the owners of Barber, was supposed to
commence delivery of concrete to a street con-
struction site of which Barber was the general con-
170 NLRB No. 37
TEAMSTERS LOCAL UNION NO. 5
tractor . With the knowledge that Barber was being
picketed both at its plant and on the job, Wallace
Heck , president of Altex , informed Barber that his
men would not cross the picket line. Barber, who
furnished about half of his own concrete , told Heck
that they would do so on this job , informed Heck
they were running out of cement , and- asked
Heck if he could help them out. Heck agreed to
permit a carload of cement on a nearby siding to be
delivered to Barber , which was subsequently done.
Picketing continued at Barber 's plant. On the
evening of October 5 a truck loaded with 20 cubic
yards of gravel from the Acme Sand and Gravel
Company , whose employees were represented by
Respondent , pulled up at Barber 's gates and finding
pickets there-pulled down the block to Altex and
asked permission to unload on Altex's property.
Heck testified without contradiction that it is custo-
mary for Altex to purchase loads of sand or gravel
from union drivers who for one reason or another
could not deliver them to the destinations for which
they were meant and that this purchase from Acme
was in no way inconsistent with its custom 2
On the morning of October 6, at or about 8:30,
pickets , including one who had been picketing at
the Barber premises , appeared at Altex 's two gates
with picket signs stating as follows:
HECK & ALTEX-Keep your nose out of
union business that doesn 't pertain to you.
The picket signs contained no identification and the
pickets , when asked , refused to identify themselves,
the cause of the dispute , or for whom they were
picketing . All work connected with the manufac-
ture and distribution of ready-mixed concrete im-
mediately ceased at Altex 's premises.'
Aaron Phillips , Respondent 's shop steward on the
job, arrived at the plant , saw the pickets , and asked
a picket what the sign was for. The picket did not
answer. He went to the other side of the plant and
asked the picket there what it was all about. The
picket told him that Altex was interfering with
union business . Phillips then went down to the
union offices where he asked Business Manager
Partin what it would take to remove the pickets.
Partin answered that if Phillips could get Mr. Heck
to agree not to interfere with union business the
picket line would be removed . Phillips testified,
"Well, that's all that was said, and then I told-I
mean, I didn 't want to go to Mr. Heck with it-I
told shim [Partin ] that I would rather someone, a
representative , from the union to go."
At or about 11 o'clock Heck and his attorney,
McKinnis, met with Assistant Business Agent
2 It appears that Acme is owned by the same individuals who own Barber.
Barber's accountant testified that Acme has a limited supply of gravel in a
pit which it has leased and that it sells the gravel only to Barber with the ex-
ception of the single truck which was delivered to Altex.
•' The Altex drivers ar represented by Respondent.
' This may have been true. Pedescleaux's testimony was so evasive and
self-contradictory and his demeanor so unimpressive that I can give no
weight to his testimony.
289
Dennis Pedescleaux, Phillips, Assistant Shop
Steward James White, and some of the drivers out-
side the picket line. McKinnis asked Phillips and
Pedescleaux what the picket line was for, and
Pedescleaux said he didn't know.' Phillips said- that
he had talked to Partin. He mentioned the fact that
Barber Brothers had received the carload of ce-
ment from Altex and the truckload of gravel from
Acme and said that, as long as Heck maintained his
lawsuit against Partin, the Company would have to
walk a chalkline. He suggested that they cease hav-
ing anything to do with Barber.'
The lawsuit, to which Phillips referred, had been
filed by Heck against some of his competitors and
Partin, alleging a conspiracy in restraint of trade
and seeking monetary damages.
McKinnis asked Pedescleaux whether he knew
the people on the picket line and Pedescleaux
stated that he did not. McKinnis asked Phillips why,
if this was not a legal picket line, the employees
would not go ahead and work. Phillips answered
that Partin had said that the employees, were to
recognize the picket line. Heck asked Pedescleaux
how to get the picket line off and Pedescleaux said
that he would talk to Partin. He attempted to call
Partin from the company offices but was unsuccess-
ful in doing so.'
At or about 4 in the afternoon Pedescleaux
called Heck and told him that Partin was angry
because Heck had turned him over to Mr. Roberts.'
Heck denied knowing who Mr. Roberts was.
On the following day, Saturday, Heck talked
again with Pedescleaux who told him , that he
thought that there would be no picket line on the
following Monday.
On Monday morning the picket line was still
there. At 9:30 Heck met with Phillips, Pedescleaux,
and White again. Heck asked Pedescleaux why
there were pickets when Pedescleaux had told him
there would be none, and Pedescleaux answered
that he did not know on Saturday that Heck had
filed the instant charges. Phillips again advised
Heck that he should stop doing business with
Barber and perhaps the picket line would be taken
down. An employee, Murray, said that he thought
that there would be trouble as long as Heck main-
tained his suit against Partin. Another employee
stated that he thought that Partin had promised th1t
employees would get warning before picket lines
were put up and that this had not-been done. At 11
a.m. Heck telephoned Partin and this time reached
him. Partin complained to Heck both about his
lawsuit and the charges in the instant case, and
' Phillips testified credibly, in my opinion , that he was not told by Partin
to tell this to Heck , but that it was his own opinion that the troubles
between the Union and the Employer resulted from the lawsuit
' Heck had also attempted to call Partin without success and had sent
him a telegram to which he received no answer.
'Mr. Roberts appears to be a member of the Governor's Board of
Inquiry with regard to labor management problems.
350-999 0 - 71 - 20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declined to meet with Heck until the charges were
dropped. Partin told Heck that he should not have
anything to do with Barber and agreed that the
picket line would leave if Heck dropped the
charges and agreed not to have anything to do with
Barber. He also accused Heck of letting Barber
have a carload of cement and taking several
truckloads of material from Acme and said that he
did not want Altex to have anything else to do with
Barber.
At or about 1:30 Heck and his yard foreman,
Stevens, met with Phillips, Pedescleaux, and White
again . On this occasion Phillips again advised Heck
to drop the charges and not have anything to do
with Barber and attributed this advice to Partin.'
At 4:30 p.m. on Monday, October 9, Pedescleaux
called Heck at his office and asked him if he had
dropped-the charges yet. Heck answered that he
had not done so. Pedescleaux hung up.
On the I Ith or 12th Heck again telephoned Par-
tin who reiterated his position that if Heck dropped
the charges and had nothing further to do with
Barber, he would take the picket off. On October
16 the picket line was still up. At 2:30 p.m. Heck,
Stevens, and Attorney McKinnis met with Partin,
Phillips, Jones, an assistant business agent, and the
employees. Partin drew Heck aside and again com-
plained about his furnishing concrete to Barber and
taking the gravel that had been sent to Barber, and
told him that he should drop the charges or Partin
would see that Altex was put on the unfair list. He
told Heck that he was too quick to file lawsuits9 and
accused Heck of contributing to an alleged assas-
sination plot against Partin. Heck told Partin that
he would not drop the charges and Partin went
back to the employees. At or about 3:30 that day
Heck met with the employees and Partin. On that
occasion Partin distributed several hundred dollars
among the employees because they were complain-
ing that they needed to work to earn money and
again Partin drew Heck apart from the employees.
Partin told Heck, that he was not showing favoritism
to Dunham and that he should leave him out of the
dispute ." Partin' also again asked Heck to drop the
charges and Heck declined to do- -so, whereupon
Partin left.
At 8 p.m. Partin telephoned Heck and again
asked him if he had dropped the charges. Heck said
that he had not and Partin said that he would call
him later, but he did not do so.
On October 17 the pickets appeared but after a
few minutes left, and they have not reappeared at
the jobsite.lr
Conclusions
Respondent did not call Edward Partin as a wit-
ness and presented no reason for its failure to do
so. There is no reason, in my opinion, to discredit
the testimony of Heck that Partin on the morning
of October 9 refused to meet with him until the
charges were dropped, advised him that the picket
line would go off if he dropped the charges and
agreed not to have anything to do with Barber, and
complained to him about the gravel trucks and the
car of cement, nor can I ignore the testimony of
Jack Lord, a reporter for a local newspaper, that
Partin told him, "the trouble was that Altex had
diverted a carload of cement over to Barber
Brothers and he made mention, also, of the sand
and gravel deal."
There is no question that the Union was responsi-
ble for the picketing at Altex. Union President
Bennett so testified and Partin's attempt to
negotiate the terms under which it would be
stopped, together with the Union's obvious ability
to stop it immediately when the injunction proceed-
ing resulted in a stipulation that it be stopped, con-
vinces me that the Union was completely responsi-
ble for the picket.
I view the legend on the picket sign, which could
not be more ambiguous, as no more than an at-
tempted obfuscation, as indeed was the failure of
the Union to identify itself on the picket signs and
the refusal of the pickets either to identify their
principal or themselves.
With regard to the testimony of Shop Steward
Aaron Phillips, I have no doubt that the employees,
who were obviously caught in the middle between
Partin and the Employer, believed that their trou-
bles resulted from the lawsuit filed by Heck against
Partin and his competitors, and it may very well be
that an object of the picketing was either to punish
Heck therefor or to coerce him to withdraw the
lawsuit. It may well be that Respondent had a dual
object-in its picketing of Altex. If an object was to
put pressure on Altex to cease doing business with
Barber a violation is spelled out.12
I view the testimony of Assistant Business Agent
Pedescleaux with regard to. an alleged agreement
between the employees and Heck on the one hand
and the employees and Partin on the other hand
pursuant to which, according to Pedescleaux, the
employees had "agreed" with Heck that he would
not receive any sand and gravel except from union
drivers and "agreed" with Partin that they would
walk off the job if Altex accepted shipments of sand
B With relation to this and the other conversations set forth above, Phil-
lips testified that he was not so advised by Partin but that he did in fact
make these statements because in his opinion this is what it would take to
resolve the issue.
" It is not clear from Heck 's testimony whether Partin was referring to the
civil suit for damages or to the charges herein.
10 Dunham is apparently the leading figure in the competing ready-mixed
concrete companies against whom , together with Partin, Heck 's lawsuit
was filed.
" On October 17 Attorney Bradley for Respondent and Attorney Bentz
for the Regional Director signed a stipulation filed with the United States
District Court for the Eastern District of Louisiana , Baton Rouge division,
agreeing that pending the final disposition of the matters involved herein,
Respondent would not picket at or in the vicinity of the premises of Altex
1i New Orleans Typographical Union No. 17, ITU, AFL-CIO (Rivas), 152
NLRB 587
TEAMSTERNS LOCAL UNION NO. 5 291
and gravel from anyone other than a union driver,
as further obfuscation. What is more, it appears
that such agreements, if they existed, and the
testimony of employee Aaron Phillips leaves con-
siderable doubt that they existed, at least in the
form that Pedescleaux testified, were nothing but a
thinly veiled agreement between Partin and Heck
which was obviously violative of Section 8(e) of the
Act, inasmuch as it in effect requires the employer
to cease or refrain from doing business with any
employer who did not use union drivers.13 Further-
more, I do not credit Pedescleaux's testimony that
the entire discussion in front of the Altex plant con-
sisted of the employees complaining over the
receipt of nonunion products or Partin stating that
he would take the sign down if Respondent would
stop using nonunion products as they had agreed to
at the other meeting.
Respondent contends that the picket line was not
unlawful because it was "informational picketing."
There appears to be a belief extant that there is
some magic in the term "informational" that pro-
tects a picketing union from the reach of the Act.
All picketing is by its very nature informational.
The question is, to whom is the information ad-
dressed? In the instant case there is no showing that
the public, as distinguished from the employees,
ever came to Altex's premises, or that the public, in
that sense of the word, .normally passed both such
entrances. Nor is there any showing that the em-
ployees ever had any reason to expect that the
picketing was meant as anything but a signal to
them to cease work, as they had done too many
times in the recent past, according to Steward Phil-
lips. Partin's distribution of funds to, in effect, com-
pensate the employees for their loss of earnings was
scarcely inconsistant with a belief that their refusal
to work was the object of the picket. Nor is there
evidence that Pedescleaux or Partin, both of whom
had ample opportunity to inform the employees
that they were not meant to cease work, ever did
so. On the contrary the actions of both these union
agents, as well as the statements of the steward,
who was clearly the Union's agent, were designed
to require them to respect the picket line. I reject
Respondent's defense in this regard.
In sum I conclude and find that Respondent
caused pickets to appear at the Charging Party's
place of business at least partially in order to cause
the Charging Party to cease doing business with
Barber Brothers, another employer, with whom the
Respondent Union had a labor dispute. I find that
by establishing a picket line and by the statements
made by Partin as set forth above, Respondent has
in fact, as alleged, engaged in the unfair labor prac-
tices charged.
CONCLUSIONS OF LAW
The Respondent by the acts of its agents in
picketing Altex with an object of forcing Altex to
cease doing business with Barber engaged in unfair
labor practices affecting commerce within the
meaning of Section 8(b)(4)(i) and (ii)(B) and Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that the Union cease and de-
sist from its unfair labor practices and post ap-
propriate notices.14
Upon the foregoing findings and conclusions and
upon the entire record in the case I recommend is-
suance of the following:
ORDER
Respondent, Teamsters Local Union No. 5, af-
filiated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Ind., its officers, agents, and representa-
tives, shall:
1. Cease and desist from picketing or otherwise
inducing or encouraging any individual employed
by Altex or by any other person engaged in com-
merce or in an industry affecting commerce to en-
gage in a strike or refusal in the course of his em-
ployment to use, manufacture, process, transport,
or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any ser-
vices or in any manner or by any means threaten-
ing, coercing, or restraining Altex or any other per-
son engaged in commerce or in an industry affect-
ing commerce with the object of forcing or requir-
ing Altex or any other person to cease using,
selling, handling, transporting, or otherwise dealing
in the products of or to cease doing business with
Barber or any other person engaged in commerce
or in an industry affecting commerce.
2. Take the following affirmative action to effec-
tuate the policies of the National Labor Relations
Act:
(a) Post in conspicuous places in Respondent's
meeting halls and other places where it customarily
posts notices to its members copies of the attached
11 The construction industry proviso would, of course , not reach such an
agreement See Los Angeles Building and Construction Trades Council,
(Portofino Marina), 150 NLRB 1590.
14 1 deem appropriate, an order to the Union that it shall not commit the
unfair labor practices here found, rather than an order which merely pro-
vides that it will not commit them with regard to this single primary em-
ployer I have noted that ordinarily the remedy in any other unfair labor
practice is to require the cessation of the type of unlawful activity found,
without limitation with regard to the victim thereof and I see no reason to
distinguish a violation of Section 8(b)(4)(B ) from violation of 8(b)(2) or
8(a)(3) in this aspect.
292 DECISIONS OF NATIONAL
notice marked "Appendix."15 Copies of said notice,
on forms to be furnished by the Regional Director
for Region 15, after being duly -signed by the
authorized representative of Respondent Local
Union No. 5, shall be posted by said Respondent as
aforesaid immediately upon receipt thereof and be
maintained for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken by said
Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(b) Mail to the Regional Director for Region 15
sufficient signed copies of the said notices for post-
ing at the premises of Altex and Barber, these em-
ployers or persons being willing . Copies of said
notice on forms to be furnished by the Regional
Director for Region 15, after having been signed by
Respondent shall be forthwith returned to the Re-
gional Director.
(c) Notify the Regional Director for Region 15,
in writi
Decis
ng , within 20 days from the receipt of this
ion and Recommended Order, what steps said
Respondent has taken to comply herewith.ts
IS In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree- of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
IS In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify the Regional Director for
Region 15 , in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF TEAMSTERS LOCAL
UNION No. 5, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS, IND.
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
LABOR RELATIONS BOARD
tional Labor Relations Act, as amended, we hereby
notify you that:
WE WILL NOT picket or otherwise induce or
encourage any individual employed by Altex or
by any -other person engaged in commerce or
in any industry affecting commerce- to engage
in a strike or a refusal in the course of his em-
ployment to use, manufacture, process, trans-
port, or otherwise handle or work on any
goods, articles, -materials, or commodities or to
perform any services or in any manner or by
any means threaten, coerce, or, restrain Altex
or any other person engaged in commerce or
in an industry affecting commerce with the ob-
ject of forcing or requiring Altex or any other
person to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of
or to cease doing business with Barber or any
other person engaged in commerce or in an in-
dustry affecting commerce.
TEAMSTERS LOCAL UNION
No, 5, AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS, IND.
(Labor Organization)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If members have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, T6024 Federal Building (Loyola), 701
Loyola Avenue, New Orleans, Louisiana 70113,
Telephone 527-6361.