Teamsters Local 315 (Atchison Railway)

National Labor Relations Board - Board Decisions

Mar 6, 1992

306 N.L.R.B. 616 (N.L.R.B. 1992)

616
306 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Respondent has been changed to reflect the new
official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge’s finding that the reserved gate system was
not tainted during the Respondent’s picketing and handbilling, we
have considered the testimony of Picket Captain Milo Peyovich that
various companies made deliveries to the primary, Piggyback, at
gates 2, 3, and 5 during the picketing. The record does not establish
that these deliveries were ‘‘goods for the direct use’’ of Piggyback,
so as to render the companies ‘‘suppliers’’ of the primary employer,
see Iron Workers Local 433 (Chris Crane), 294 NLRB 182, 183
(1989), nor does it establish that these deliveries occurred before the
picketing and handbilling was extended to these gates. Moreover,
Peyovich testified that he did not report the claimed breaches of neu-
trality to Santa Fe at the times they are alleged to have occurred.
Accordingly, the Respondent has not demonstrated that picketing of
the neutral gates was at any time in response to deliveries by neutral
employers. See San Francisco Building Trades Council (Goold Elec-
tric), 297 NLRB 1050, 1055–1057 (1990).
3 We have modified the judge’s recommended Order because a
broad remedial order is unwarranted in view of our finding that the
Respondent discontinued its unlawful picketing and handbilling 2
days after the issuance of a temporary restraining order and the ab-
sence of record evidence that the Respondent has engaged in pre-
vious similar violations. See Iron Workers Pacific Northwest Council
(Hoffman Construction), 292 NLRB 562 (1989); Iron Workers Local
378 (McDevitt & Street), 298 NLRB 955 fn. 5 (1990). The judge’s
notice is consistent with this narrow Order.
General Truck Drivers, Warehousemen, Helpers
and Automotive Employees of Contra Costa
County, Local No. 315, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO1
and The Atchison, Topeka and Santa Fe Rail-
way Company. Cases 32–CC–1302 and 32–CC–
1306
March 6, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 7, 1991, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Gen-
eral Truck Drivers, Warehousemen, Helpers and Auto-
motive Employees of Contra Costa County, Local No.
315, affiliated with International Brotherhood of Team-
sters, AFL–CIO, Richmond, California, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
Substitute the following for paragraph 1(b).
‘‘(b) Threatening, coercing, or restraining Santa Fe
or any other person engaged in commerce or in an in-
dustry affecting commerce, where an object thereof is
to force or require Santa Fe or any other person en-
gaged in commerce to cease using, selling, handling,
transporting, or otherwise dealing in the products of, or
cease doing business with, Piggyback.’’
Patricia M. Milowicki, for the General Counsel.
Duane B. Beeson (Beeson, Tayer, Silbert, Bodine & Living-
ston), for the Respondent.
Ronald W. Novotny (Hill, Farrer & Burrill), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. This
proceeding, in which I conducted a hearing on March 13–
14, 1991, is based on unfair labor practice charges filed by
The Atchison, Topeka and Santa Fe Railway Company
(Santa Fe), in Cases 32–CC–1302 and 32–CC–1306, on July
13, 1990 and August 25, 1990, respectively, and on a con-
solidated complaint issued on November 20, 1990, by a Re-
gional Director of the National Labor Relations Board
(Board), on behalf of the Board’s General Counsel. The con-
solidated complaint, which was amended on February 26,
1991, and at the start of the hearing, alleges in substance that
during July and August 1990, Piggyback Services, Inc. (Pig-
gyback) was under contract with Santa Fe to provide
ramping and deramping services for Santa Fe at Santa Fe’s
Richmond, California terminal and that Teamsters Local No.
315 (Respondent) at this time was engaged in a primary
labor dispute with Piggyback. The amended consolidated
complaint further alleges in substance that Respondent during
July and August 1990, picketed and distributed handbills at
Santa Fe’s Richmond, California terminal and picketed a
dropoff site established by Santa Fe in the vicinity of the ter-
minal and that, in violation of Section 8(b)(4)(i) and (ii)(B)
of the National Labor Relations Act (Act), an object of the
aforesaid picketing and handbilling was to force or require
Santa Fe and other persons to cease doing business with Pig-
gyback.
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the
posthearing briefs filed by the parties, I make the following
617TEAMSTERS LOCAL 315 (SANTA FE)
FINDINGS OF FACT
I. JURISDICTION AND THE RESPONDENT’S STATUS AS A
LABOR ORGANIZATION
Santa Fe, a Delaware corporation, owns and operates an
interstate railroad, including an intermodal rail and truck ter-
minal in Richmond, California. During a 12-month period
material to this case, Santa Fe derived revenues in excess of
$50,000 from the interstate transportation of freight.
Piggyback, an Ohio corporation with facilities and/or oper-
ations located throughout the United States, is in the business
of providing ramping and deramping services for railway
companies. During the time material, Piggyback had a con-
tract with Santa Fe to provide ramping and deramping serv-
ices to the latter at its Richmond, California intermodal ter-
minal. During a 12-month period material to this case, Piggy-
back in the course and conduct of its business operations at
Santa Fe’s Richmond, California intermodal terminal pro-
vided services valued in excess of $50,000 to Santa Fe.
During the time material herein, Santa Fe had a contract
with United Parcel Service (UPS), to transport UPS’s van by
rail to and from Santa Fe’s Richmond, California terminal.
Santa Fe and UPS are now, and have been at all times ma-
terial, persons engaged in commerce or in an industry affect-
ing commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Piggyback is now, and has been at all times material, a
person and an employer engaged in commerce or in an in-
dustry affecting commerce within the meaning of Section
2(1), (2), (6), and (7) of the Act.
Respondent is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. The setting
Santa Fe operates a rail terminal in Richmond, California,
where it employs approximately 205 employees, including
engineers, switching crews, mechanical employees, track
maintenance employees, and clerical employees, all of whom
are represented by seven different railroad craft unions.
These employees perform all of the work connected with
Santa Fe’s operations at the Richmond terminal except, as
described infra, that part of the operation which concerns the
ramping and deramping of the terminal’s intermodal freight.
Santa Fe contracts this work to Piggyback, which is in the
business of providing ramping and deramping services for
railroad companies and maintains facilities throughout the
United States. Piggyback’s employees employed at the Rich-
mond terminal are represented by Respondent.
Santa Fe’s Richmond terminal handles two kinds of rail
freight relevant to this case. Approximately 40 percent of the
rail freight traffic is ‘‘intermodal’’; the transportation of
freight in trailers and containers. The trailers and containers,
sometimes referred to herein collectively as vans, are trans-
ported by Santa Fe on railroad flatcars. The other kind of
freight transported by Santa Fe, which is relevant to this
case, has been referred to during the hearing as simply
‘‘intermodal-intermodal,’’ and includes the transportation of
freight in boxcars, auto transport cars, gondolas, and tank
cars.
All of the Richmond terminal’s incoming and outgoing rail
traffic uses a single ‘‘main line’’ track at the east end of the
terminal which crosses a road a few hundred yards from the
terminal, known as Indian Crossing. Approaching the rail
yard from Indian Crossing, the main track branches into mul-
tiple tracks within the yard. Four of these tracks lead to an
area on the north side of the yard known as the intermodal
or ramp area where vans are loaded onto and off of railroad
flatcars. The four tracks dedicated to the intermodal work are
numbered 160 through 163. Additional tracks within the yard
are used for other traffic, and for switching purposes.
At the west end of the rail yard, crossed by a freeway
overpass, there are two spur tracks relevant to the events in
this case. One is called the West Switching Lead, which pro-
ceeds in a fairly straight line through a tunnel and into an
area known as Point Richmond. The other spur curves to the
south, proceeds along Cutting Boulevard, and then to an in-
dustrial area at the Port of Richmond, about 2 miles from the
rail yard; it is designated as the Zone 3 Industries spur. A
third spur at the east end of the yard leads to the Chevron
Oil Refinery.
Approximately 60 freight trains enter and exit the Rich-
mond terminal each day. Some of the trains are used exclu-
sively to transport intermodal freight, and are directed to the
tracks leading into the intermodal area of the rail yard. Other
trains include a mixture of flatcars carrying intermodal
freight and cars carrying intermodalintermodal freight. Al-
though less than a majority of all freight entering and leaving
the rail yard is intermodal, the majority of the trains carry
at least some intermodal freight. If there are a substantial
number of flatcars carrying intermodal freight in a train, the
train proceeds directly to the intermodal area of the rail yard,
and its intermodal-intermodal railroad cars are switched onto
other tracks. If there are only a few flatcars carrying inter-
modal freight in the train, the train goes to the main switch-
ing area, and the intermodal cars are switched onto tracks
160-163, the tracks leading to the yard’s intermodal area.
The West Switching Lead and the Zone 3 Industries spur, as
well as the tracks at Indian Crossing, are used for this pur-
pose. However, during the normal course of business, the
Zone 3 Industries spur is used very infrequently as a switch-
ing spur for intermodal freight traffic, because the Zone 3 In-
dustries spur’s very tight turns make it dangerous to use for
switching the 89-foot flatcars used to transport the inter-
modal freight.
The south boundary of the Richmond terminal is bordered
by South Garrard Boulevard, along which there are entrances
to the rail yard. A fenced area, referred to at the hearing as
gate 1, just to the west of a freeway overpass, provides ac-
cess to the rail yard generally. It appears that this entrance,
which was used during the events material to this case, is not
used during the normal course of business. To the east of
gate 1, and on the other side of the freeway overpass, Santa
Fe and Piggyback occupy an office building at 303 South
Garrard Boulevard. There is walk-in and vehicle traffic from
South Garrard Boulevard to this building and its adjacent
parking lot, but this entrance does not provide access to the
terminal’s rail yard; this entrance is referred to in the record
as gate 2. Further east on South Garrard Boulevard is gate
3, the entrance used by the trucks of Santa Fe’s customers
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which haul the containers and trailers (vans). Approximately
600 vans are transported in and out of this entrance daily.
Several hundred yards further east on South Garrard Boule-
vard is a building, where Santa Fe maintains additional of-
fices. There are two entrances to the rail yard in this area,
referred to as gates 4 and 4(b) respectively, used principally
by Santa Fe’s employees, including train crews, maintenance
of way crews and other craft employees. Finally the motor
road which intersects with the main railroad line at Indian
Crossing also leads to an access road into the terminal’s rail
yard, and is used by Santa Fe’s employees, as well as by
suppliers of Piggyback.
2. The work performed by Piggyback’s employees
Santa Fe has a contract with Piggyback pursuant to which
Piggyback performs ramping, deramping and related services
in connection with Santa Fe’s intermodal freight operations
at the Richmond, California rail terminal. Piggyback per-
forms this service on a fee-per-lift basis and, by the terms
of its agreement with Santa Fe, is obligated to operate ‘‘as
an independent contractor to [Santa Fe].’’
As described in more detail below, Piggyback uses heavy
equipment furnished by Santa Fe to place vans on railway
flatcars and to remove vans from railway flatcars in the inter-
modal area of the terminal’s rail yard, moves these vans to
and from the area in the yard where the truckdrivers have
deposited them, does repair and maintenance work on the
equipment used for these purposes, inspects and weighs the
vans as they move in and out of the rail yard, and performs
other tasks in connection with Santa Fe’s intermodal freight
operation.
All of the vans used to transport intermodal freight han-
dled at Santa Fe’s Richmond, California terminal are trans-
ported to and from the terminal’s rail yard through gate 3.
They are transported in trucks, owned and operated by Santa
Fe’s customers or independent truckers whom Santa Fe’s
customers employ. Neither Santa Fe’s customers nor the
independent truckers have a contractual relationship with
Piggyback. Each truck, as it enters and exits the rail yard
through gate 3, must stop at a checkpoint near the gate
manned by Piggyback’s employees. There, all loaded vans
are weighed and all vans are inspected for damage by
Piggyback’s employees. A form generated by a Santa Fe
computer is used by Piggyback’s checkpoint employees to
indicate the condition of the van, and is signed by the truck-
driver and by a Piggyback employee. The Piggyback em-
ployee then inputs this information into the main computer
frame of Santa Fe. In those instances when a truckdriver
leaves the rail yard with a loaded or empty van, the driver
must again go through the above-described checkpoint proce-
dure upon exiting the yard.
As part of the usual checkpoint procedure concerning
intermodal freight, the following additional business contacts
between the truckdrivers and Piggyback’s employees occur:
if a truckdriver does not know where, in the rail yard, to take
the van he is carrying, the driver is furnished with this infor-
mation at the checkpoint by a Piggyback employee; if a fully
loaded van is to be transported immediately to a railroad flat-
car, rather than to the area in the rail yard where the vans
are usually left by the truckdriver, the truckdriver is given
this instruction by a Piggyback employee, either at the
checkpoint or in the rail yard; if a truckdriver is instructed
by his employer to return with an empty trailer, the truck-
driver is informed at the checkpoint by a Piggyback em-
ployee where, in the rail yard, the trucker will find an empty
trailer to hook up to his tractor; and, truckdrivers occasion-
ally ask one of Piggyback’s hostler’s for assistance in hook-
ing up trailers to their tractors and/or for assistance in ‘‘flip-
ping’’ a van from one truck chassis to another.
The person in charge of Piggyback’s day-to-day operations
at the Richmond terminal is its terminal manager. The ter-
minal manager, along with several employees of Piggyback
classified as coordinators, and one or two clericals employed
by Piggyback, occupy an office in the building adjacent to
gate 2, which also contains the offices of Santa Fe’s director
of intermodal services and Santa Fe’s clerical employees.
Piggyback’s terminal manager spends approximately 60 per-
cent of his time in his office regularly conferring and com-
municating with various Santa Fe employees, including the
assistant train masters and others, in order to facilitate the
intermodal operation and to resolve problems which his sub-
ordinates encounter in the performance of their job duties.
The terminal manager makes daily visits to the checkpoint,
the ramping and deramping areas, and the maintenance area,
and during those visits speaks to various employees of Santa
Fe, including the assistant train masters and mechanical de-
partment personnel, in order to effectively discharge his man-
agerial duties, which include resolving those problems which
prevent Piggyback’s employees from effectively performing
their jobs at the terminal.
Piggyback’s coordinators are in continuous communication
with Santa Fe’s assistant train masters. The coordinators,
who are on duty 24 hours a day, are responsible for making
sure the right railroad flatcars and vans are on the right rail-
road tracks at the right time, so they may be handled by
Piggyback’s ramping and deramping employees as scheduled.
In order to perform their duties the coordinators commu-
nicate constantly with Santa Fe’s assistant train masters and
with other Santa Fe personnel, in order to get the track as-
signment of trains, information about the spotting of flatcars,
and other information indispensable for Piggyback to per-
form its ramping and deramping work at the terminal. It is
undisputed that the coordinators would not be able to per-
form their duties, which are essential to Piggyback’s oper-
ation, without the information furnished to them by Santa
Fe’s personnel.
Piggyback’s employees also work together with Santa Fe’s
mechanical department’s repair personnel to repair the lock-
ing mechanism on a flatcar when it malfunctions, and be-
cause of this prevents Piggyback’s employees from either
loading or unloading a van from the flatcar. This occurs ap-
proximately 10 times weekly. In addition, Piggyback’s and
Santa Fe’s employees work together to make sure that each
van is securely locked onto its flatcar, before it leaves the
ramping area or the rail yard. Piggyback’s employees are ini-
tially responsible for securing the van to the flatcar. Each
locking device is then doubled checked by a Santa Fe em-
ployee, who, if he is not satisfied, will direct a Piggyback
employee to resecure the van to the flatcar or otherwise to
correct the problem.
Piggyback’s and Santa Fe’s employees must also coordi-
nate their work in connection with ‘‘switching’’ of railroad
cars. An important safety procedure calls for both groups of
employees to be responsible for opening and closing safety
619TEAMSTERS LOCAL 315 (SANTA FE)
1 Unless otherwise specified all dates hereinafter refer to the year
1990.
2 The same picket sign language was used by Respondent for all
of the picketing described hereinafter.
3 UPS accounts for 25 percent of Santa Fe’s intermodal business,
and is the single largest trucker using the Richmond rail terminal.
gates which swing up and down at either end of tracks where
work is being performed, or to admit trains into or out of
areas where work is to be performed. For example, whenever
switching of cars occurs in or out of the intermodal area of
the rail yard, ‘‘flag’’ protection is the responsibility of the
craft or employee group requiring protection against an unau-
thorized entry into the area by an engine. Piggyback’s em-
ployees have authority to release cars to Santa Fe’s operating
employees for switching purposes. In order to coordinate this
procedure there is frequent communication between Piggy-
back personnel and Santa Fe’s personnel. Similarly,
Piggyback’s yard supervisors coordinate car movements with
Santa Fe’s assistant train masters to create a ‘‘split’’ in a
train—to open a gap between two cars by uncoupling
them—in order to permit Piggyback’s hostlers access be-
tween the staging area where the vans are kept and the
tracks, without having to drive completely around a long
freight train.
The movement of trains into or out of the rail yard’s inter-
modal area is not permitted until the gate is opened, and then
closed behind the train, by a Piggyback employee. In this re-
gard, each incoming intermodal train, for example, requires
a Santa Fe assistant train master to notify a Piggyback em-
ployee of its arrival, whereupon the Piggyback employee
drives to the area where the intermodal spur leaves the main
line, opens the gate, and shuts it after the train has moved
through.
3. Respondent’s picketing and handbilling activity
Respondent admits that throughout the events material to
this case it was engaged in a primary labor dispute with Pig-
gyback and did not have a labor dispute with Santa Fe. The
nature of Respondent’s dispute with Piggyback was not the
subject of testimony, but this much can be gleaned from the
record concerning the dispute. Prior to the events in this
case, Respondent had a long-time collective-bargaining rela-
tionship with Santa Fe Terminal Services, Inc. (Terminal
Services), a wholly owned subsidiary of Santa Fe, which per-
formed the same ramping and deramping services for Santa
Fe at Santa Fe’s Richmond railroad terminal, as described in
detail supra. Santa Fe discontinued the use of Terminal Serv-
ices on June 30, 1990,1 and awarded a contract to Piggyback
for the same work. Piggyback began its operations in Santa
Fe’s Richmond terminal on July 1. Respondent began its
picketing and its other actions described hereinafter, when, as
it asserted, Piggyback reneged on a promise to hire the
former Terminal Services’ employees, who had been rep-
resented by the Respondent, to perform the work.
Picketing activity was commenced by Respondent at the
Richmond terminal on July 2 at gate 1, the second day after
Piggyback began performing under its contract with Santa
Fe. As of that time Santa Fe had posted a sign at gate 1
which stated, in substance, that the gate was reserved exclu-
sively for the use of Piggyback’s employees, visitors, cus-
tomers, and suppliers, and that Santa Fe’s employees, visi-
tors, customers and suppliers should enter the terminal
through gates 2 and 3. The pickets stationed at gate 1 carried
signs with the following legend:2
PIGGYBACK SERVICES LOCK OUT
UNFAIR TO TEAMSTERS LOCAL 315
Respondent continuously picketed at this gate with the
above-described picket sign until August 29, when its dispute
with Piggyback ended.
Gates numbered 2, 3, 4, and 5, which have been described
supra, were subsequently picketed by Respondent at various
times in July and August. These gates, at the times of Re-
spondent’s picketing, had been posted with signs which stat-
ed, in substance, that the gates were reserved for the exclu-
sive use of Santa Fe’s employees, visitors, customers and
suppliers and that Piggyback’s employees, customers, visitors
and suppliers should enter the terminal through gate 1 and
gave the location of gate 1.
On July 12 the Respondent expanded its picketing to gate
3 and distributed handbills to the truckdrivers entering at this
location, reading:
TO DRIVERS ENTERING
THIS RAIL YARD
Teamsters Local 315 is asking you to respect our picket
line against Piggy Back Services, Inc.
If you are here to pick up or drop a trailer, you will
be dealing directly with employees of Piggy Back Serv-
ices, Inc. We are asking you not to do that.
If you are a Teamster, you have a right under your
Union contract not to do business with this unfair em-
ployer. If you are not a Union member, you still have
legal rights. Call the National Labor Relations Board
(273–7200).
TEAMSTERS LOCAL NO. 315
Respondent picketed and handbilled at this gate continuously
until August 29, when its dispute with Piggyback ended.
On July 12, the day it extended its picketing to gate 3, Re-
spondent wrote United Parcel Service (UPS), Santa Fe’s larg-
est customer for intermodal freight at the Richmond rail ter-
minal,3 explaining its dispute with Piggyback and stating the
reasons for picketing gate 3. In this last respect, the letter
reads as follows:
[T]he picketing is presently being relocated at the gate
where UPS drivers normally enter the rail yard to pick
up and deliver trailers. The pickets will be appealing to
all drivers entering the premises who do business di-
rectly with Piggy Back Services, Inc., to refuse to per-
form any work directly related to the Piggy Back Serv-
ices, Inc., operation.
The present work operation . . . requires drivers enter-
ing the premises to deal directly with the employer per-
forming the ramping and deramping services (now
Piggy Back Services, Inc.) as a part of the pick up
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 There is a dispute as to whether or not Santa Fe answered
Sveum’s July 30 letter. The parties stipulated that L. C. Jenkins,
Santa Fe’s assistant vice president for Intermodal Terminal Oper-
ations and Services, whose office is in Chicago, Illinois, if called to
testify would have testified that he had caused to be sent to Sveum
a letter dated August 6, acknowledging Sveum’s July 30 letter, and
stating, in pertinent part, that Santa Fe declined to allow Respond-
ent’s pickets to come onto Santa Fe’s property for the purpose of
picketing Piggyback, ‘‘because of safety, security and liability con-
cerns, among others, Santa Fe Railway’s policy is not to allow indi-
viduals on its property except when their presence is related to Santa
Fe’s business.’’ Sveum credibly testified that Respondent received
no such letter (C.P. Exh. 5).
and/or delivery of trailers. Piggy Back Services, Inc. is
the primary employer involved in this labor dispute,
and Local 315 is entitled to request other employees to
honor our picket line against this Employer by refusing
to work directly with its personnel.
As a consequence of the picketing at gate 3, the union-rep-
resented truckdrivers, including the drivers employed by
UPS, refused to cross the picket line. To maintain the flow
of intermodal business, Santa Fe established a ‘‘drop off’’
point on a public street near gate 3 for the use of UPS and
the other union truckers. Santa Fe arranged for the services
of outside trucking companies to pick up the trucks at this
location, drive them through gate 3, through the check point,
and into the staging area assigned to Piggyback for the
ramping and deramping of intermodal freight. These trucks
were then returned to the dropoff point, perhaps with a load-
ed or empty trailer, where the regular drivers picked them up
and drove them away. In the case of the UPS trucks, the
ferrying of vans into and out of the rail terminal was per-
formed by UPS supervisors.
On August 10 the Respondent further extended its pick-
eting and handbilling to gate 5, the entrance to the rail yard
at Indian Crossing. Respondent picketed with the same signs
it was using at gates 1 and 3, but the handbills distributed
at this location were addressed, ‘‘TO EMPLOYEES WORK-
ING IN SANTA FE RAILWAY YARD,’’ and after describ-
ing Respondent’s labor dispute with Piggyback, the handbills
read as follows:
We are asking you to refuse to deliver railcars to
Piggy Back employees to work on, refuse to work with
Piggy Back employees, and refuse to perform switching
services to enable Piggy Back employees to do their
work. We are not asking you to cease any work unre-
lated to Piggy Back’s day-to-day operations.
This is your fight as well as ours, because YOU
COULD BE NEXT.
The picketing and handbilling continued at this location for
the duration of Respondent’s dispute with Piggyback.
Prior to the establishment of the picket line at gate 5,
Santa Fe’s hub manager at the Richmond terminal, Wildon
Thibeaux, a subordinate of Ray Applebaugh, Santa Fe’s di-
rector of intermodal services at the Richmond terminal, re-
ceived a letter dated July 30 from Respondent’s secretary-
treasurer, George Sveum, which reads as follows:
Dear Mr. Thibeaux:
I am writing to request that Teamsters Local 315 be
given access to Railway property in order to further its
labor dispute with Piggy Back Services, Inc.
Under existing practices, one or more employees of
Piggy Back Services is responsible for unlocking and
opening, and subsequently locking three gates at the
east end of the yard to provide rail trains with con-
necting lines to tracks 160, 161 and 163 in making
pickups and deliveries of trailers. Local 315 wishes to
place pickets at these gates whenever a Piggy Back
Services employee is performing the work involved.
The gates, however, are located well inside the bound-
aries of Railway property, and our pickets cannot patrol
in that area absent Railway permission. We are accord-
ingly asking that the Railway allow pickets to come
onto its property for this limited purpose.
Local 315 will be happy to discuss with Railway
representatives the arrangements and conditions for
such picketing to take place so that there will be no dis-
ruption of activities of any employer other than those
which might be incidental to lawful picketing against
Piggy Back Services, and also to assure compliance
with all appropriate security rules and regulations.
Please call to schedule a meeting for this purpose. It is
our intent to engage in this activity at the earliest pos-
sible time, and I am accordingly requesting a prompt
response to this letter.
Applebaugh testified Santa Fe received this letter on or about
July 30, that to his knowledge Santa Fe did not answer the
letter, and further testified that he would have known if
Santa Fe had answered the letter.4 On the subject of whether
it would have been feasible for Santa Fe to have invited Re-
spondent’s pickets onto Santa Fe’s premises to picket, as re-
quested in Sveum’s July 30 letter to Thibeaux, Applebaugh
testified:
The facility [referring to Santa Fe’s Richmond railway
terminal] is a totally integrated facility. We cannot in-
vite the unions into the facility because there is not
room for them to picket safely. Also there would not
be a way to segregate the unions from the railroad’s
craft employees.
Jerry Fraizer, Santa Fe’s relief assistant superintendent during
the time material, also testified it would have been unsafe for
the pickets to have picketed inside the rail yard.
Applebaugh’s and Fraizer’s testimony was not denied or oth-
erwise contradicted by the record as a whole.
Also prior to the start of the picketing at gate 5, which
gate is used by various employees employed by Santa Fe to
enter the railway yard, on August 8 Respondent sent letters
to the presidents of the seven unions that represent Santa
Fe’s employees employed at the Richmond terminal. These
letters, identical in content, informed the unions about Re-
spondent’s labor dispute with Piggyback and described the
nature of the dispute and the importance of the dispute to the
several unions which represent the railroad’s employees, and
with respect to Respondent’s picketing in connection with
the dispute, stated:
We have been sanctioned by the International Broth-
erhood of Teamsters to picket Piggyback Services and
621TEAMSTERS LOCAL 315 (SANTA FE)
5 Based on the credible testimony of Peyovich and Russell and
picket John Krebs.
6 I also note that picket John Krebs, a picket for Respondent at In-
dian Crossing who credibly testified that while he was there the
pickets did not picket the trains which contained no intermodal
freight, was able only to picket intermittently, albeit on a daily basis,
due to a leg injury.
7 I note that when Fraizer was shown Santa Fe’s records which
identified the intermodal-intermodal freight trains which entered and
exited the terminal on August 10, he testified he was not able to re-
call whether he observed any one of those trains stopped at Indian
Crossing due to the pickets’ conduct.
8 Fraizer did not testify that those trains were completely inter-
modal-intermodal freight trains.
9 I note that the credible testimony of picket captain Peyovich,
which was corroborated by Santa Fe’s general supervisor of train
handling, John Herndon, establishes it was very difficult for the
pickets to determine whether a train approaching Indian Crossing
was a completely intermodal-intermodal freight train, especially dur-
ing the nighttime hours and especially if the train was a long one,
inasmuch as somewhere near the end or the middle of the train there
might be one or more flatcars carrying a van which would not be
visible to the pickets until the train’s engines had already passed
through Indian Crossing.
10 As I have indicated supra, Herndon testified that it was difficult
for the pickets to determine whether trains approaching Indian
Crossing were completely intermodal-intermodal, except for the case
of one very short train which exited from the rail yard, with only
10 to 12 boxcars.
we are picketing some of the entrances to the Rich-
mond Yard. Road crews (trains) have been going
through our lines both when entering and exiting the
Piggyback Services, Inc. facility. We have handed out
fliers (see enclosures) informing Railroad employees of
our labor dispute with Piggyback Services and asking
for their support and to please recognize our sanctioned
picket line.
Our members have talked to some of the Railroad
Union employees and have been told that they have re-
ceived no instructions regarding our picket lines. In
order for us to be be [sic] able to resolve this problem
and to put our members back to work, we need the sup-
port and respect of our lines by other Local Unions. If
you can notify your Santa Fe Railroad members, North-
ern California Division, that the Teamsters Union mem-
bers at Richmond, California are engaged in a lawful
and sanctioned strike and that each person has the right
to honor a picket line without jeopardizing their jobs,
it would be of great benefit towards a settlement with
Piggyback Services, Inc.
. . . .
The reason for this letter is two-fold: first . . .; sec-
ond, to seek your assistance and cooperation in inform-
ing your members in this area that we are on strike and
to please honor our picket lines if they come in contact
with our picketers.
As I have indicated previously, while a substantial number
of the trains entering and exiting the Richmond terminal
carry some intermodal freight, some of these trains carry no
intermodal freight whatsoever. In connection with Respond-
ent’s picketing at Indian Crossing, its picket captains Milo
Peyovich and Charles Russell Jr., instructed the persons who
picketed on behalf of Respondent that they were to picket
only trains made up, in whole or in part, of intermodal flat-
cars, and not to interfere with trains comprised exclusively
of intermodal-intermodal freight.5 Also, when Peyovich and
Russell were at Indian Crossing during the picketing, they
observed that their instructions were being obeyed; that ex-
clusively intermodal-intermodal freight trains were not being
picketed. However, Peyovich and Russell were present at In-
dian Crossing during the picketing for only a few hours each
day, during the 24 hours each day that the pickets were sta-
tioned at this location, and Russell was not present after Au-
gust 25, when he was hospitalized.6
During the period when Peyovich and/or Russell were not
present to supervise the picketing at Indian Crossing, the
record reveals that on certain occasions the pickets ignored
their instructions and picketed trains which carried exclu-
sively intermodal-intermodal freight. In this regard, it is un-
disputed that when the pickets stationed at Indian Crossing
observed a train approach with one or more cars carrying
intermodal freight, their procedure was to leave the gate and
approach the tracks with their picket signs and to hold up or
wave the signs so that the train’s engineer’s could see that
they were picketing. The testimony of Jerry Fraizer and John
Herndon establishes that the pickets stationed at Indian
Crossing on several occasions acted in this manner when
trains approached the crossing hauling only intermodal-inter-
modal freight. Santa Fe Relief Superintendent Fraizer testi-
fied he observed the pickets wave their signs and stop a
intermodal-intermodal freight train on the afternoon of Au-
gust 10,7 and testified he regularly observed the Indian
Crossing pickets picket trains which exited from the inter-
modal-intermodal section of the rail yard.8 Fraizer further
testified he observed the Indian Crossing pickets approached
the railroad tracks and wave their signs at completely inter-
modal-intermodal freight trains as they approached the cross-
ing, as follows:9 one train on August 23; one train on August
18; two trains on August 16; two trains on August 15; and,
on several occasions between August 24 and 27, observed
the pickets waive their picket signs toward a switch engine
moving oil tankers into the Chevron Oil facility which is
accessed off of the Indian Crossing track. Santa Fe’s general
supervisor of train handling, Herndon, testified that during
the 6-day period commencing on or about August 10, that
whenever a train approached Indian Crossing at night, which
was when he was on duty, that the Indian Crossing pickets
took their picket signs, went to within 6 to 10 feet of the
railroad tracks, and stood on both sides of the tracks with
their signs and did this regardless of the type of train in-
volved; whether the train carried intermodal freight or was
a completely intermodal-intermodal freight train.10
In concluding that Respondent specifically instructed its
pickets that they were to picket only freight trains which car-
ried at least one or more intermodal freight cars and not to
interfere with trains comprised exclusively of intermodal-
intermodal freight cars, I considered the testimony of Jim
Fitzgerald and Robert Golden that they were informed by
pickets, in effect, that they had been instructed to stop trains
carrying only intermodal-intermodal freight, as well as trains
carrying intermodal freight.
Fitzgerald, Santa Fe’s hub manager, testified that on about
August 24 while at Indian Crossing with Santa Fe Mechan-
ical Foreman Charles Hunter, for the purpose of moving an
622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 During the picketing herein Santa Fe’s supervisors, including
Golden, were instructed to report anything of significance that oc-
curred in connection with the picketing, yet Golden made no note
of this incident and did not mention it to anyone because, he testi-
fied, he did not believe that what occurred was important. Golden
reluctantly admitted that he first mentioned this occurrence to Re-
spondent’s attorney the night before he testified.
12 In his initial testimony and at times during his later testimony
about this episode, Golden, in describing what was said, attributed
the above remarks to both of the pickets. However, when questioned
specifically about this he testified that only one of the pickets, the
man, spoke.
13 I reject Counsel for the General Counsel’s contention that Re-
spondent picketed a daily boxcar run which moved through the West
Switching Lead to a Ford Motor Parts Warehouse, inasmuch as
Fraizer testified he did not personally observe the pickets conduct
themselves in this fashion, but was informed of this by other Santa
Fe supervisors.
inbound train across Indian Crossing comprised of 10 tank
cars, which they had been notified had stopped there on ac-
count of the picketing, that Foreman Hunter pointed out to
picket John Krebs that this train was not carrying intermodal
freight and asked Krebs whether it was the subject of the
picketing, and that Krebs replied by telling Hunter, ‘‘I don’t
know . . . I’m doing what I’ve been told to do,’’ or used
words to that effect. Foreman Hunter did not testify. Krebs
denied having this conversation and further testified he never
had a conversation with Foreman Hunter.
Santa Fe Relief Train Master Golden testified that, on a
date he does not remember, during the picketing at Indian
Crossing, he was called to the crossing to move a switch en-
gine which was not hauling any cars, and which he had been
notified had stopped at the crossing due to the picket line.
Golden further testified that before moving the switch engine
he spoke to two of the pickets, a man and a woman, who
were standing near the switch engine, and asked them to
move out of the way of the switch engine. According to
Golden, the pickets, whose names he testified he does not
know, but whom he described in detail physically, responded
by not moving and stating, ‘‘No, we’re stopping all the
trains,’’ or used words to that effect.11 Respondent’s picket
captain, Peyovich, who personally knew all of the Respond-
ent’s pickets, testified that no one picketed for Respondent
who fitted the descriptions given by Golden of the two pick-
ets whom he attributed the above-conduct.12
I rejected Fitzgerald’s and Golden’s above testimony be-
cause their testimonial demeanor was not good and because
Kreb’s and Peyovich’s testimonial demeanor was good when
Kreb’s denied having the conversation with Foreman Hunter
and when Peyovich testified that the persons described by
Golden did not picket for Respondent.
On August 10, and continuing thereafter until August 29,
when Respondent’s dispute with Piggyback ended, Respond-
ent engaged in intermittent picketing at the railroad spurs
identified as the West Switching Lead and Zone 3 Industries.
Picketing occurred in those areas only when traffic moved on
those spur tracks. The pickets stationed at gate 1 could ob-
serve rail traffic on the West Switching Lead and when this
occurred hurried over to that location. The pickets, when at
either gate 1 or the West Switching Lead, were able to ob-
serve rail traffic when it moved on the Zone 3 Industries
spur, and when that occurred hurried over to that location.
Picket captains Peyovich and Russell issued the same in-
structions for picketing to the pickets stationed at the rail
yard’s west end as were issued to those stationed at the rail
yard’s east end; the pickets were instructed that only trains
which hauled one or more intermodal freight cars were to be
picketed, when involving in the switching operations for
which these spur tracks were used, and that trains with only
intermodal-intermodal freight cars should not be picketed.
Peyovich and Russell credibly testified that during the times
they were present at the West Switching Lead and the Zone
3 Industries spur, during the period of the picketing, that
their instructions were obeyed; that they observed the pickets
picket only trains which were hauling one or more inter-
modal freight cars. But, as was the case with their presence
at the east end of the yard, Indian Crossing, they were not
present for the vast majority of the time encompassed by the
picketing in this case.
In contending that the picketing instructions issued by
Peyovich and Russell were not observed at the rail yard’s
west end, the General Counsel and Charging Party cite the
testimony of Santa Fe’s Relief Assistant Superintendent
Fraizer. During the period of the picketing, Fraizer toured the
rail yard in a car every 2 to 3 hours during his shift, which
resulted in his driving by the areas encompassed by the West
Switching Lead and the Zone 3 Industries rail spur approxi-
mately six times daily.
Fraizer testified that when he drove by the West Switching
Lead he observed pickets waving their picket signs at ‘‘all
trains’’ and that he observed the trains all stop, and that the
trains which stopped had intermodal-intermodal freight traffic
on them. He did not testify, however, that the picketed trains
he was referring to, consisted of solely intermodal-intermodal
freight cars. In view of the fact that the record reveals that
a substantial number of intermodal freight cars, perhaps a
majority of the cars switched on the West Switching Lead,
are flatcars carrying intermodal freight, it would be imper-
missible for me to infer that Fraizer was referring to trains
consisting entirely of intermodal-intermodal freight cars.13
Regarding the picketing at the Zone 3 Industries spur,
Fraizer’s testimony consists of the following question and
answer: ‘‘With respect to Zone 3 Industries, did you observe
any picketing going on in the Zone 3 Industries track?,’’ an-
swer, ‘‘yes.’’ He did not testify that he observed the pickets
at this location picket wholly intermodal-intermodal freight
trains. I have considered the record reveals, as I have found
supra, that normally intermodal freight cars do not move on
the Zone 3 Industries spur because of the configuration of
the track, but, as I have also found, the record establishes
that occasionally when the West Switching Lead is unable to
accommodate the switching of flatcars carrying intermodal
freight, that the Zone 3 Industries spur is used for this pur-
pose. Moreover, Peyovich and Russell credibly testified that
during the period of the picketing herein, they observed the
Zone 3 Industries spur being used to switch cars involving
trains which contained intermodal freight cars.
In view of the foregoing circumstances, I find that the
record fails to establish that Respondent, during the time ma-
terial, picketed trains which consisted entirely of intermodal-
intermodal freight cars at either the West Switching Lead or
the Zone 3 Industries spur.
On August 24 Respondent extended its picketing and
handbilling at Santa Fe’s Richmond rail terminal to gates 2
623TEAMSTERS LOCAL 315 (SANTA FE)
14 On August 24, Santa Fe opened a gate adjacent to gate 4, identi-
fied in the record as gate 4(b), which Santa Fe’s employees used to
enter and exit the rail yard. This gate was not posted and when Re-
spondent observed it was being used, commenced to picket and
handbill at that location. On August 25 Santa Fe closed gate 4(b).
15 In its answer to the consolidated complaint Respondent admitted
that the handbill distributed by the pickets at gates 2 and 4 was
worded differently than the handbill described herein. However, at
the start of the hearing, all the parties to this proceeding stipulated
that the handbill described herein, not the one pleaded in the com-
plaint, was the one handed out by Respondent’s pickets at gates 2
and 4.
16 The remaining gate posted for neutral employers’ employees,
gate 3, was not used by Santa Fe’s employees to enter or exit the
facility.
and 4,14 and continued to engage in that activity at those
gates until August 29, when Respondent’s dispute with Pig-
gyback ended. The handbills distributed by the pickets at
these gates were titled, ‘‘TO EMPLOYEES WORKING IN
SANTA FE RAILWAY YARD,’’ and after stating Respond-
ent had a labor dispute with Piggyback and describing the
nature of the dispute, further stated:15
We are asking you to refuse to deliver railcars to
Piggy Back employees to work on, refuse to work with
Piggy Back employees, and refuse to perform switching
services to enable Piggy Back employees to do their
work. We are not asking you to cease any work unre-
lated to Piggy Back’s day-to-day operations.
This is your fight as well as ours, because YOU
COULD BE NEXT.
TEAMSTERS LOCAL 315
As indicated previously, gate 2 is located at an office
building, and its adjacent parking lot, where both Piggyback
and Santa Fe employees worked. The record reveals that
after gate 2 was posted with a sign reserving it exclusively
for the employees, suppliers, etc. of Santa Fe, that Respond-
ent’s Picket Captain Peyovich observed that the posted in-
structions were violated on two occasions: once he observed
a UPS deliveryperson use gate 2 to make a delivery to
Piggyback’s office; and, once he observed another delivery
service use gate 2 to make a delivery to Piggyback’s office.
Respondent never reported those violations of Santa Fe’s
posted instructions to either Santa Fe or Piggyback.
As described supra, when, on July 12, Respondent com-
menced its picketing at gate 3, the union represented truck-
drivers employed by Santa Fe’s customers, who transported
the vans used for carrying intermodal freight into and out of
gate 3, refused to cross the picket line. This caused Santa Fe
to establish a dropoff point on a public street near gate 3,
where an exchange of equipment took place between the
union truckdrivers and their supervisors (or other intermodal-
union truckdrivers), who drove the vans through gate 3 to
Piggyback’s intermodal work area in the rail yard, and then
made the return trip to the dropoff point where the regular
truckdrivers took over. Subsequently, on about August 14,
Santa Fe moved this dropoff point to a vacant lot located ap-
proximately 1-1/2 miles from the rail yard, which is referred
to in the record as the UPS dropoff point. The activity at the
UPS dropoff point was the same as at the previous dropoff
area; the exchange of equipment between the union truck-
drivers and their supervisors (or other intermodal-union
truckdrivers), who drove the vans through gate 3 to
Piggyback’s intermodal work area, and then returned to the
UPS dropoff point with a loaded or empty van, for the union
driver to transport back to his employer’s facility.
Prior to August 28, Respondent did not picket or handbill
at the above-described dropoff points. On the evening of Au-
gust 28 Respondent commenced to picket and handbill at the
UPS dropoff point, and engaged in this conduct until on Au-
gust 29 its dispute with Piggyback ended. Respondent’s pick-
ets stationed at the UPS dropoff point distributed the iden-
tical handbill at this location on August 28–29 as were being
distributed at gate 3.
Beginning on August 24, in the evening, and continuing
through August 27, Santa Fe’s employees, all of whom are
represented by unions, refused to cross the Respondent’s
picket lines located at gates 2, 4, 4(b) and 5,16 to report for
work. This significantly interfered with the operation of
Santa Fe’s Richmond rail terminal. In order to continue to
operate the rail terminal during this period, Santa Fe used its
supervisory personnel, some of whom came to the terminal
from other Santa Fe rail terminals.
On August 25, Santa Fe’s attorney sent a mailgram to Re-
spondent’s attorney stating, in substance, that Respondent’s
picketing at gate 4 as well as its picketing at the Indian road
crossing tracks, the West Switching Lead and Zone 3 Indus-
tries was unlawful and had the intended effect of shutting
down the rail yard and stopping the movement of goods and
materials which were completely unrelated to Santa Fe’s
intermodal operations, and that because of this conduct Santa
Fe had filed unfair labor practice charges against Respondent
and a Section 303 suit for damages in the U.S. District
Court. Respondent’s attorney replied by mailgram, dated Au-
gust 27, denying the illegality of Respondent’s activity and
stating, in substance, that Respondent’s picketing was con-
fined to entrances through which employees entered the rail
yard to perform services directly related to the work of Pig-
gyback and that Respondent was not asking Santa Fe’s em-
ployees to refrain from entering the yard or from doing work
unrelated to Piggyback, but was ‘‘requesting employees not
to perform work directly involved in the day-to-day oper-
ations of Piggyback Services.’’ The mailgram ended with
this offer:
I am authorized . . . to offer to place the Union’s pick-
ets inside the rail yard directly adjacent to the work
performed by Piggyback Services. If this offer is ac-
cepted, the Union will cease picketing at entrances to
the yard used by employees who work with Piggyback
Services in its day to day operations.
There was no response to this offer.
On August 27, at 6:30 p.m., Santa Fe obtained a tem-
porary restraining order against the several craft railroad
unions, who represent Santa Fe’s employees, enjoining those
unions from respecting Respondent’s picket lines and direct-
ing those unions to instruct the employees they represent to
cross the Respondent’s picket lines or face union discipline.
As a result, all of the Santa Fe employees returned to work
that evening. Two days later, August 29, Respondent settled
its dispute with Piggyback and all picketing and handbilling
ceased.
624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Sailor’s Union (Moore Dry Dock), 92 NLRB 547 (1950).
18 It is unnecessary to find that the sole object of picketing is un-
lawful; an unlawful object is enough. NLRB v. Denver Building &
Constructions Trades Council, supra at 688–689.
B. Discussion
1. Introduction and applicable principles
The amended consolidated complaint alleges, in substance,
that Respondent’s above-described picketing and handbilling,
except for that which occurred at gate 1, violated Section
8(b)(4)(i) and (ii)(B) of the Act, because an object of the
picketing and handbilling, which accompanied the picketing,
was to force and require Santa Fe and other neutral employ-
ers to cease doing business with Piggyback, the primary em-
ployer herein. The principal question litigated was whether
the legality of the Respondent’s picketing should be evalu-
ated under the Board’s Moore Dry Dock17 criteria, as con-
tended by the General Counsel and the Charging Party, or,
as contended by Respondent, under the standards set forth by
the Supreme Court’s decisions in Electrical Workers IUE
Local 761 (General Electric) v. NLRB, 366 U.S. 667 (1961),
and Steelworkers (Carrier Corp.) v. NLRB, 376 U.S. 492
(1964), herein for the sake of convenience referred to as
General Electric and Carrier Corp. I am of the opinion that
the Board’s Moore Dry Dock rules govern the legality of the
Respondent’s picketing.
Section 8(b)(4) of the Act makes it an unfair labor practice
for a union:
(i) to engage in, or to induce or encourage any indi-
vidual employedby any person . . . to engage in a
strike or a refusal in the course of his employment to
use, . . . process . . . or otherwise handle or work on
any goods, . . . or to perform any services; or (ii) to
threaten, coerce, or restrain any person engaged in
commerce or in an industry affecting commerce, where
in either case an object thereof is:
(B) forcing or requiring any person . . . to cease doing
business with any other person, . . . . Provided, that nothing
contained in this clause (B) shall be construed to make un-
lawful, where not otherwise unlawful, any primary strike or
primary picketing.
. . . .
Provided further, That for the purposes of this para-
graph (4) only, nothing contained in such paragraph
shall be construed to prohibit publicity, other than pick-
eting, for the purpose of truthfully advising the public,
including consumers and members of labor organiza-
tions, that a product or products are produced by an
employer with whom the labor organization has a pri-
mary dispute and are distributed by another employer,
as long as such publicity does not have an effect of in-
ducing any individual employed by any person other
than the primary employer in the course of his employ-
ment to refuse to pick up, deliver, or transport any
goods, or not to perform any services, at the establish-
ment of the employer engaged in such distribution;
These provisions reflect ‘‘the dual congressional objective
of preserving the right of labor organizations to bring pres-
sure to bear on offending employers in primary labor dis-
putes and of shielding unoffending employers and others
from pressures in controversies not their own.’’ NLRB v.
Denver Building & Constructions Trades Council, 341 U.S.
675, 692 (1951). As explained in NLRB v. Operating Engi-
neers Local 825 (Burns & Roe), 400 U.S. 297, 302–303
(1971):
Congressional concern over the involvement of third
parties in labor disputes not their own prompted Section
8(b)(4)(B). This concern was focused on . . . pressure
brought to bear, not ‘‘upon the employer who alone is
a party [be a dispute], but upon some third party who
has no concern with it’’ with the objective of forcing
the third party to bring pressure on the employer to
agree to the union’s demands.
Section 8(b)(4)(B) is, however, the product of legis-
lative compromise and also reflects a concern with pro-
tecting labor organizations’ right to exert legitimate
pressure aimed at the employer with whom there is a
primary dispute. [Footnotes omitted.]
Thus, Section 8(b)(4)(B) requires that disputed union conduct
be classified either as legitimate ‘‘primary’’ activity directed
against the offending employer or as unlawful ‘‘secondary’’
activity directed against the neutral employer with whom the
union has no dispute.18 General Electric, 366 U.S. at 672–
673 (1961).
Where the primary employer and the neutral employer oc-
cupy separate work sites, the necessary line-drawing is rel-
atively easy. Generally speaking, union picketing occurring
at the primary employer’s premises and seeking only the dis-
ruption of his normal operations is considered primary and
thus protected activity, whereas picketing extending beyond
the premises of the primary employer to those of the neutral
employer and designed to disrupt the latter’s operations is
secondary and prohibited. Compare, NLRB v. International
Rice Milling Co., 341 U.S. 665, 672 (1951), with NLRB v.
United Brotherhood of Carpenters, 184 F.2d 60 (10th Cir.
1950).
However, where the primary and neutral employers per-
form separate work on the same premises, more difficult
problems frequently arise. In such ‘‘common situs’’ situa-
tions, the union’s right to direct legitimate pressure against
the primary employer, despite the proximity of other neutral
parties, must be accommodated with the neutral’s intended
immunity from the full impact of the labor dispute. Accord-
ingly, in such cases, it is necessary to draw a line frequently
‘‘more nice than obvious’’ (General Electric, supra at 674)
between union activity which is properly limited to the pri-
mary employer and union activity designed to take advantage
of the common situs by using neutral parties as a wedge
against the primary employer.
As an aid in drawing this line, the Board, in Moore Dry
Dock, supra, 92 NLRB at 549, developed certain criteria
which were held to be ‘‘presumptive’’ of valid primary activ-
ity. These criteria were summarized by the Supreme Court
in General Electric, as follows (366 U.S. at 677):
(1) that the picketing be limited to times when the situs
of dispute was located on the secondary premises; (2)
that the primary employer be engaged in his normal
625TEAMSTERS LOCAL 315 (SANTA FE)
19 In so holding, the Court reasoned that employees who perform
routine maintenance jobs for the primary employer are very much
akin to those who make ‘‘regular plant deliveries’’ and that under
those circumstances, ‘‘the barring of picketing . . . would make a
clear invasion on traditional primary activity of appealing to neutral
employees whose tasks aid the [primary] employer’s everyday oper-
ations.’’ 366 U.S. at 681.
business at the situs; (3) that the picketing take place
reasonably close to the situs; and (4) that the picketing
clearly disclose that the dispute was only with the pri-
mary employer.
The Moore Dry Dock criteria were not meant to establish
a rigid formula for determining the legality of common situs
picketing. Rather, the doctrine ‘‘simply establishes an evi-
dentiary aid for the Board to determine the object of pick-
eting, where the other evidence is equivocal.’’ NLRB v.
Northern California District Council of Hod Carriers, 389
F.2d 721, 725 (9th Cir. 1968). Therefore, mere compliance
with the four requirements of the Moore Dry Dock case does
not immunize a union’s picketing, for a union may, by its
other conduct, reveal that its objective is secondary. General
Teamsters Local 126 (Ready Mixed Concrete), 200 NLRB
253 (1972).
In General Electric, the union picketed the premises of
General Electric, with whom it was engaged in a labor dis-
pute, at a gate used by the primary employer and also at a
gate reserved exclusively for independent contractors and
their employees, who were regularly working on those prem-
ises. In deciding General Electric, the Supreme Court re-
viewed the origins of the Moore Dry Dock standards and
noted that they were first developed to govern situations in
which the primary employer was working at premises not his
own. The Court also noted, however, that the Board had sub-
sequently applied the standards to cases in which the pick-
eting took place at the premises owned and operated by the
primary employer. 366 U.S. at 676–679. In general, the
Court approved such application where the work done by the
secondary employers was ‘‘unconnected to the normal oper-
ations of the struck employer—usually construction work on
his buildings.’’ 366 U.S. at 680. In such a case, the Court
held, the primary employer may erect a ‘‘gate’’ and direct
that the secondary employers enter the primary employer’s
premises only through the gate reserved for this purpose, and
if the union pickets at the gate reserved for the secondary
employers, it has failed to comply with the third Moore Dry
Dock standard that picketing be conducted as close as pos-
sible to the situs of the primary employer’s operations, and
the picketing is accordingly unlawful. 366 U.S. at 681. On
the other hand, if the work of the secondary employer’s em-
ployees is related to that of the normal operations of the pri-
mary employer, the Court ruled that the secondary employ-
er’s employees may be freely picketed at the primary em-
ployer’s premises no matter which gate they enter.19 366
U.S. at 680, 681.
In General Electric the Supreme Court remanded the case
to the Board for consideration of the nature of the work done
by General Electric’s independent contractors; the Court
ruled that if a substantial amount of the work were found to
be ‘‘conventional maintenance work necessary to the normal
operations of General Electric, the use of the gate would
have been a mingled one outside the bar’’ of the statute em-
phasis in the original 366 U.S. at 682.
Subsequently, in Carrier Corp., the Supreme Court ap-
proved the Board’s application of the rule which the Su-
preme Court formulated in General Electric, so as to permit
as legitimate primary action, picketing of a gate owned by
a railroad, but cut through a fence surrounding the struck
employer’s premises. This gate was used exclusively by neu-
tral railroad employees entering the struck employer’s prem-
ises to perform delivery activities relating to the normal oper-
ations of the struck employer. In applying its General Elec-
tric decision to the facts of Carrier Corp., the Supreme
Court explained (376 U.S. at 498–499):
We think General Electric’s construction of the proviso
to Sec. 8(b)(4)(B) is sound and we will not disturb it.
The primary strike, which is protected by the proviso,
is aimed at applying economic pressure by halting the
day-to-day operations of the struck employer. But Con-
gress not only preserved the right to strike; it also saved
‘‘primary picketing’’ from the secondary ban. Picketing
has traditionally been a major weapon to implement the
goals of a strike and has characteristically been aimed
at all those approaching the situs whose mission is sell-
ing, delivering or otherwise contributing to the oper-
ations, which the strike is endeavoring to halt. In light
of this traditional goal of primary pressures we think
Congress intended to preserve the right to picket during
a strike a gate reserved for employees of neutral deliv-
ery men furnishing day-to-day service essential to the
plant’s regular operations. [Citation omitted.]
In Building & Construction Trades Council (Markwell &
Hartz) 155 NLRB 319, 323–326 (1965), enfd., 387 F.2d 79,
83 (5th Cir. 1967), the Board held, inter alia, that the Gen-
eral Electric ‘‘related work’’ test was limited to picketing at
the premises of the primary employer, and that picketing
which occurs at a situs not owned or customarily occupied
by the primary employer is to be tested solely by the original
Moore Dry Dock criteria. The Board concluded that the Su-
preme Court’s decisions in General Electric and Carrier
Corp. were not intended to ‘‘override[e] this historic distinc-
tion’’ based on the location of the picketing. The Board also
concluded that the ‘‘related work’’ test as formulated in Gen-
eral Electric, and applied in Carrier Corp., is simply an ad-
ditional qualification imposed in such a case because of the
Act’s ‘‘policy that lenient treatment be given to strike action
taking place at the separate premises of a struck employer.’’
Since there is no such policy in the case of picketing occur-
ring at premises not owned or occupied by the primary em-
ployer, the Board concluded that there is no necessity in that
instance for a ‘‘related work’’ test. Judge Rives added in his
concurring opinion in Markwell & Hartz v. NLRB, supra, 387
F.2d at 84:
[Even] when the work done by the secondary employ-
ees is related to the normal operations of the primary
employer there remains a distinction between picketing
at the situs of the primary employer and picketing at a
common situs where two or more employers are per-
forming separate tasks on common premises. It seems
to me that the opinion in General Electric clearly rec-
ognizes that distinction and approves the four Moore
626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Service Employees International Union Local 32B-32J (Dalton
Schools), 248 NLRB 1067 (1980).
Dry Dock standards as applicable to common situs
picketing.
In the more than 29 years that have passed since the Su-
preme Court’s decision in General Electric, neither the
Board or a court of appeals have applied General Electric’s
related work test, rather than the Moore Dry Dock criteria,
to a case involving picketing at the premises of the neutral
employer. To the contrary, the Board in Dalton Schools,20
specifically indicated it will not apply the related work test
formulated in General Electric, rather than the Moore Dry
Dock test, in cases involving picketing at the premises of the
neutral employer.
In Dalton Schools a union picketed a school, including en-
trances reserved for the school’s employees and persons
making deliveries to the school. The union was picketing be-
cause of its labor dispute with a maintenance contractor
whose employees worked in the school. The union relied
upon the General Electric case to justify its blanket picketing
of the neutral employer’s premises. In evaluating the union’s
picketing by the Moore Dry Dock criteria, rather than by the
test set forth in General Electric, as urged by the union, the
administrative law judge, reasoned (248 NLRB at 1069):
Respondent’s reliance on the General Electric theory
supra is misplaced as such doctrine is inapplicable in
the present circumstances where the primary dispute is
against the independent contractor supplier of services
and not the separate employer occupier of the premises
to whom the services were supplied. To follow Re-
spondent’s view would be to grossly distort the pur-
poses of the General Electric doctrine by permitting
secondary picketing based merely upon similarity or re-
latedness in the work of the primary struck supplier and
a portion of the work done by its customer. By twisting
logic, Respondent suggests that primary strikes against
independent contractors could lawfully be spread to en-
mesh all customers of such contractors who under ex-
isting law are otherwise neutrals in the dispute. Such a
view is patently without merit.
In adopting the judge’s conclusion that the union’s picketing
violated Section 8(b)(4)(B), the Board specifically rejected
the union’s argument that under the theory enunciated in
General Electric the union’s picketing was not proscribed by
Section 8(b)(4)(B). In rejecting this argument, the Board re-
lied on the judge’s above-described reasoning. 248 NLRB at
1067 fn. 2.
The Court of Appeals for the Fourth Circuit in Kinty v.
United Mine Workers of America, 544 F.2d 706 (4th Cir.
1976), has also indicated it will not apply the related work
test enunciated in General Electric and Carrier Corp. to
picketing at the premises of a neutral employer. Kinty was
a suit for damages brought by several employers against the
United Mine Workers (UMW) under Sections 301 and 303
of the Act, for allegedly picketing those employers in viola-
tion of the Act’s secondary boycott provisions. The UMW
urged, among other things, that its picketing was ‘‘traditional
primary picketing,’’ when viewed in the light of General
Electric and Carrier Corp., 544 F.2d at 713. In rejecting this
argument the court (544 F.2d at 713–715), found that factu-
ally both General Electric and Carrier Corp. concerned pick-
eting at the premises of the employer with whom the primary
labor dispute existed, whereas the case before the court did
not concern that type of picketing, and therefore the court re-
jected the UMW’s argument that the Supreme Court’s deci-
sions in General Electric and Carrier Corp. were applicable
to the UMW’s picketing, because (544 F.2d at 715):
What the Court was seeking to do in [General Electric
and Carrier Corp.] was to establish a rule for deter-
mining when picketing of employees entering the struck
facility by a gate leading into thefactility [sic], reserved
for the exclusive use of third party employees of third-
parties, becomes primary picketing. It was only in that
context that the Court used the type of work being per-
formed by the employees of the third-parties entering
the struck facility as the criterion for determining
whether the picketing was primary or secondary (foot-
note omitted). It follows that these cases can in no way
be deemed authority for defendant’s position.
The argument of the defendant, if sustained, would
mean that the location of the picketing would be of no
significance in determining whether the picketing was
allowable primary picketing or forbidden secondary
picketing. So long as the neutral employer rendered
services relating to the primary employer’s ‘‘day-to-day
operations,’’ picketing of his employees anywhere,
would under this theory, be primary picketing. . . .
This contention, which would . . . make practically all
picketing primary, would render the statute powerless to
protect against conduct Congress clearly intended to
prohibit.
I conclude, as did the Board in Dalton Schools and the
court in Kinty, that the Supreme Court’s ‘‘related work’’ test,
as formulated in General Electric and applied in Carrier
Corp., was not meant to apply to a union’s picketing at the
premises of a neutral employer. In my opinion, based upon
the reasoning of the Board’s decisions in Dalton Schools and
Markwell & Hartz and the court’s decision in Kinty, the le-
gality of Respondent’s picketing of the neutrals herein, must
be determined by the Moore Dry Dock criteria and without
regard to whether the work of Santa Fe or the other neutral
employers doing business with Santa Fe was ‘‘related’’ to
the normal operations of Piggyback, for the applicability of
the ‘‘related work’’ principle depends on whether the pick-
eting takes place at the primary employer’s premises, where-
as here it took place at the premises of the neutral employer.
2. The application of the Moore Dry Dock criteria
to the picketing
The only one of the four criteria set forth in Moore Dry
Dock which the Respondent is accused of not complying
with is the third criteria; that the picketing take place reason-
ably close to the situs. In applying the ‘‘reasonably close to
the situs’’ criteria, the Board, with court approval, has long
held that employers may ‘‘by the use of separate gates for
the purpose of [the primary employer’s] ingress to and egress
from the job site, lawfully force the union to picket only
those ‘separate gates.’’’ Plumbers Local 519 v. NLRB, 416
F.2d 1120, 1125 (D.C. Cir. 1969). When such separate re-
627TEAMSTERS LOCAL 315 (SANTA FE)
21 I note that Respondent does not contend that the neutrality of
gate 2 was breached during the picketing by the two isolated occa-
sions on which delivery services delivered packages to Piggyback’s
office through that gate.
22 I did not consider the Charging Party’s and the General Coun-
sel’s further contention that the unlawful secondary objective of Re-
spondent’s picketing was further demonstrated by the following fac-
tors: the way in which Respondent escalated its picketing to all of
the entrances reserved for neutral employers; by the alleged testi-
monial admission of picket captain Milo Peyovich that Respondent
picketed for an unlawful secondary objective; and, by Respondent’s
picketing of trains which carried no intermodal freight. Whether
there is merit to this contention, in whole or in part, would not affect
my ultimate conclusions.
23 I note that Respondent’s prior request to Santa Fe that it be al-
lowed to enter the rail yard to picket, its request of July 30, was
a request that it be allowed to picket at the east end of the rail yard
in the vicinity of the safety gates to tracks 160–163, whenever
Piggyback’s employees opened and closed those safety gates. In
making this request Respondent did not offer to discontinue its pick-
eting of the neutral truckers at gate 3, nor did Respondent indicate
it would not picket at gate 5 or picket the trains at Indian Crossing,
if its request was granted.
served gates are properly established, the union, as part of
its obligation to minimize the secondary effects of common
situs picketing, must act with restraint to avoid extending its
appeal to those jobsite access points used only by neutral
employers and their employees. Ironworkers Local 433 v.
NLRB, 598 F.2d 1154, 1156 (9th Cir. 1979). Under the
Moore Dry Dock criteria, picketing that extends beyond the
gate established for the primary employer and its employees
and suppliers is ‘‘strongly indicative of a secondary, pro-
scribed object.’’ Ramey Construction Co. v. Painters Local
544, 472 F.2d 1127, 1131 (5th Cir. 1973). It creates the in-
ference that the union is pursuing unlawful, secondary objec-
tives. See Carpenters Local 470 v. NLRB, 564 F.2d 1360,
1363 (9th Cir. 1977).
In the instant case, in an effort to insulate itself from the
Respondent’s labor dispute with Piggyback, Santa Fe posted
a sign at gate 1 of its Richmond rail terminal designating that
gate as the exclusive entrance for the employees, visitors,
customers, and suppliers of Piggyback, and posted signs at
gates 2, 3, 4, and 5 stating that those gates were reserved for
the exclusive use of Santa Fe’s employees, visitors, cus-
tomers, and suppliers, and that Piggyback’s employees, cus-
tomers, visitors, and suppliers, should enter the terminal
through gate 1. Respondent was well aware of the above-de-
scribed reserved gate system. Nonetheless, as described in
detail supra, Respondent extended its picketing well beyond
gate 1, the gate established for Piggyback’s employees and
suppliers, and picketed at several access points to the ter-
minal used by the employees of neutral employers, as fol-
lows: From July 12 through August 29 it picketed gate 3, the
entrance to the terminal used by the truckdrivers of Santa
Fe’s customers and by the truckdrivers of Santa Fe’s cus-
tomers truckers; from August 10 through 29 it picketed gate
5, an entrance to the terminal used by Santa Fe’s employees;
from August 24 through 29, it picketed gates 2 and 4, en-
trances to the terminal used by Santa Fe’s employees;21 on
August 24 and 25 it picketed gate 4(b), an entrance to the
terminal used by Santa Fe’s employees; on August 28 and
29, it picketed the UPS dropoff point, the vacant lot used by
Santa Fe’s unionized customers to deliver their intermodal
freight to the rail yard through gate 3; and, from August 10
through 29 it picketed trains operated by Santa Fe’s employ-
ees at Indian Crossing, the West Switching Lead and the
Zone 3 Industries spur. The aforesaid picketing, when
viewed in the context of the valid reserve gate system in ef-
fect at the rail terminal during the time of the picketing, war-
rants the inference that Respondent engaged in the picketing
with an object proscribed by Section 8(b)(4)(B) of the Act,
thereby violating Section 8(b)(4)(i) and (ii)(B) of the Act.
The unlawful secondary object of Respondent’s picketing
herein is further demonstrated by the content of the handbills
which Respondent’s pickets distributed at the gates reserved
for the neutral employers and by the content of Respondent’s
August 8 letters to the unions which represent Santa Fe’s
employees: the handbills distributed by the pickets at gate 3
and at the UPS dropoff point to the truckdrivers of Santa
Fe’s intermodal freight customers, asked them ‘‘to respect
our picket line against [Piggyback]’’ and not to pick up and
deliver intermodal freight because, as the handbill explained,
in doing so they would be dealing directly with Piggyback’s
employees; the handbills distributed by the pickets to Santa
Fe’s employees at gate 5, asked them to refuse to deliver
intermodal freight to Piggyback’s employees and to other-
wise refuse to work with Piggyback’s employees or to per-
form any work which would enable Piggyback’s employees
to perform their work; the handbills distributed by the pick-
ets to Santa Fe’s employees at gates 2, 4 and 4(b), asked
them ‘‘to refuse to deliver rail cars to Piggyback employees
to work on, refuse to work with Piggyback employees, and
refuse to perform switching services to enable Piggyback
employees to do their work;’’ and, the Respondent’s August
8 letters to the unions which represent Santa Fe’s employees,
asked that those unions notify Santa Fe’s employees that,
‘‘we are on strike and to please honor our picket lines if they
come in contact with our pickets.’’ Thus, it is evident from
the wording of the Respondent’s August 8 letters to the
unions which represent Santa Fe’s employees and from the
wording of the handbills which Respondent’s pickets distrib-
uted at the gates reserved for the neutral employers’ employ-
ees, that Respondent’s intent in picketing at these gates was
to attempt to enmesh the neutral employers in its dispute
with Piggyback by appealing to the neutrals’ employees to
respect its picket line and, in the case of Santa Fe’s employ-
ees, by further appealing to them to refuse to do that part
of their daily work which involved Santa Fe’s intermodal
freight operation, if they chose to disregard Respondent’s
picket line and go to work.22
In concluding that Respondent’s picketing herein had an
unlawful secondary objective, I considered that on August 27
Respondent’s lawyer notified Santa Fe’s lawyer that he was
authorized:23
to offer to place the Union’s pickets inside the railyard
directly adjacent to the work performed by Piggyback
Services. If this offer is accepted, the Union will cease
picketing at entrances to the yard used by employees
who work with Piggyback Services in its day to day
operations.
628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The August 27 offer was made only after Respondent had been
picketing neutral employers, as follows: gate 3, since July 12; gate
5, since August 10; gates 2 and 4, since August 24. Moreover, the
offer was made only after Santa Fe’s attorney had notified Respond-
ent that Respondent’s picketing was unlawful and that Santa Fe had
filed additional unfair labor practice charges with the Board and a
suit for damages caused by the picketing.
25 The August 27 offer did not include a cessation of Respondent’s
picketing of the neutral truckers using gate 3 or of the Santa Fe em-
ployees operating the trains at Indian Crossing, the West Switching
Lead and the Zone 3 Industries spur, inasmuch as the offer was
worded in terms of ceasing to picket ‘‘at entrances to the yard used
by employees who work with Piggyback Services in its day to day
operations,’’ whereas the truckers who used gate 3 and the Santa Fe
employees who operate the trains which entered and exited the rail
yard through Indian Crossing did not ‘‘work with Piggyback Serv-
ices in its day to day operations,’’ nor did the picketing of the trains
at Indian Crossing, the West Switching Lead and Zone 3 Industries
spur involve picketing ‘‘at entrances to the yard.’’
26 Teamsters General Local 200 (Reilly Cartage), 183 NLRB 305
(1970), and similar cases, differ significantly from the instant case
because, among other things, they involve ambulatory picketing and
because there was no showing in those cases, as in the instant case,
that it would have been unsafe for the union to conduct its picketing
inside of the employer’s place of business. In this last regard, it is
undisputed that because of the continuous movement of trains and
other equipment within the rail yard, it would not have been safe
for Respondent’s pickets to have conducted their picketing, as re-
quested by Respondent, in those areas ofthe rail yard where
Piggyback’s employees worked.
The belatedness of this offer,24 the failure of the offer
to include an offer to stop all picketing directed against
neutrals,25 and the Respondent’s failure to show that it
could not effectively accomplish its legitimate objective
of communicating its dispute with Piggyback to
Piggyback’s employees and suppliers by picketing at
the entrance reserved for Piggyback’s employees and
suppliers, have persuaded me that Respondent’s August
27 offer was not sufficient to rebut the evidence which,
I have found supra, establishes that Respondent’s pick-
eting herein was conducted for an illegal secondary ob-
jective.26
In concluding that Respondent’s picketing herein violated
Section 8(b)(4)(B), I also considered whether the neutrality
of gates 2, 3, 4, 4(b), and 5 had been breached and whether
the neutrality of the Santa Fe employees operating the pick-
eted trains at Indian Crossing, the West Switching Lead and
the Zone 3 Industries spur had been compromised because
Piggyback’s suppliers used those gates and the picketed
trains were delivering supplies to Piggyback. In resolving
this issue I considered by the Board and court decisions in
Electrical Workers Local 323 (J. H. Hoff Electric), 241
NLRB 694 (1979), enfd. sub nom. J. F. Hoff Electric v.
NLRB, 642 F.2d 1266 (D.C. Cir. 1980), and Operating Engi-
neers Local 450 (Linbeck Construction), 219 NLRB 997
(1976), enfd. sub nom. Linbeck Construction v. NLRB, 550
F.2d 311 (5th Cir. 1977), and Electrical Workers IBEW
Local 211 (Atlantic County Authority), 277 NLRB 1041
(1985).
In Linbeck, general contractor Linbeck served as a special
supplier to the primary employer, one of Linbeck’s sub-
contractors on a construction site; Linbeck delivered the
crushed stone that Luckie used in performing its paving and
sewer subcontract. Linbeck delivered the crushed stone
through the Linbeck gate for Luckie’s use. In holding that
the union’s picketing of the gate through which the general
contractor provided these materials was lawful, the Board
stated (219 NLRB at 997):
What is important is that, in bringing in such materials,
Linbeck was acting as a supplier of Luckie and was
therefore required to use the same reserve gate as any
other supplier of Luckie-that which had been set aside
and reserved for Luckie. By failing to do so and by de-
livering the materials instead through the Linbeck gate,
Linbeck subjected itself to the same pressures by the
Union, that the Union could use against any supplier of
the primary.
The Board offered no further legal reasoning in support of
this conclusion.
The court, in enforcing the Board’s Linbeck decision, ob-
served that suppliers of primary employers ‘‘occupy a middle
ground in the spectrum of permissible activity under
8(b)(4)(B)’’: although direct appeals to them not to deliver
to the primary employer are unlawful secondary activity,
such suppliers are not immune from the ‘‘influence of a valid
primary picket itself.’’ 550 F.2d at 316–317. The court based
this conclusion on the Supreme Court’s holding that Con-
gress intended the proviso to Section 8(b)(4)(B) to permit the
traditional primary activity of picketing ‘‘a gate reserved for
employees of neutral delivery men furnishing day-to-day
service essential to the [primary employer’s] regular oper-
ations.’’ 550 F.2d at 317, quoting Carrier Corp., 376 U.S.
at 499. The court then went on to articulate the following
test for determining whether a union may picket a supplier
providing materials to the primary employer at a common
situs construction site: ‘‘[A]ny gate used to deliver materials
essential to the primary employer’s normal operations is sub-
ject to lawful picketing.’’ 550 F.2d at 318. Under this test,
the crushed stone that the general contractor delivered to the
primary employer was material essential to the primary’s
normal operations since the primary’s subcontract required it
to perform paving work, and the crushed stone was material
that the primary was required to use in such work.
In Hoff Electric, the general contractor on a residential
construction project, engaged Hoff, the primary employer, to
install the electrical system throughout the project. A small
part of the contract between the general contractor and Hoff
provided for the installation of electrical fixtures. These elec-
trical fixtures were the property of the project’s owner who
ordered them from Consolidated Electrical Supply Co., who
regularly delivered the electrical fixtures once or twice week-
ly to a trailer on the jobsite. The deliveries of the fixtures
to the jobsite were always made through the gate which had
been reserved exclusively for the use of the employees and
suppliers of the neutral employers doing business on the site.
Hoff’s employees picked up the fixtures at the trailer and in-
stalled them in the new buildings.
In concluding that the union’s picketing of the reserved
neutral gate in Hoff Electric did not violate Section
8(b)(4)(B) of the Act because the neutrality of that gate had
been breached by the delivery of the electrical fixtures
through that gate for Hoff’s use, the Board relied on its deci-
sion in Linbeck as enforced by the court. 241 NLRB at 694
fn. 1. In rejecting dissenting Board Member Murphy’s con-
629TEAMSTERS LOCAL 315 (SANTA FE)
27 The court further noted that its above definition of supplier was
‘‘a far narrower concept than the General Electric ‘work-relatedness’
test.’’ 642 F.2d at 1274.
28 The construction project’s general contractor, The Atlantic
County Authority, contracted with an electrical company to manufac-
ture the standby generator and this contractor hired a trucker to de-
liver the generator to the project for the primary employer, an elec-
trical contractor, to install.
tention that Hoff Electric was distinguishable from Linbeck
because, ‘‘the supplies delivered in Linbeck through the neu-
tral gate (crushed stone) were ‘raw material,’ but the material
moved through the neutral gate here (electrical fixtures) is a
finished product and . . . not ‘material used’ by Hoff in its
work,’’ the Board majority reasoned (241 NLRB at 694 fn.
1):
As the court of appeals pointed out in enforcing the
Board’s order in Linbeck, ‘‘any gate used to deliver
materials essential to the primary employer’s normal
operations is subject to lawful picketing.’’ . . . The
contention that delivery of electrical fixtures is not ‘‘es-
sential’’ to the operations of an electrical contractor
charged, as here, with installation of an electrical sys-
tem for the general contractor is a contention that fails
of its own weight. [Emphasis added by Board.]
The court in Hoff Electric applied the Linbeck test in af-
firming the Board’s decision, but in applying that test, the
court was careful to note that ‘‘[t]his test, while based on the
same principles, is not as broad as the General Electric
‘work-relatedness’ test developed for industrial plants where
the struck employer is the owner of the plant.’’ 642 F.2d at
1273. The court also found it significant that the electrical
fixtures which Consolidated Electrical supplied were used
solely by the primary employer (Hoff) and no other sub-
contractors. Therefore, the court reasoned, ‘‘any disruption
caused if the Union should be successful in its appeal to
Consolidated’s deliveries would not spread to anyone but the
primary employer.’’ 642 F.2d at 1275. The court also pro-
vided the following definition of ‘‘supplier’’: ‘‘the common
sense notion of a supplier is a party which delivers goods for
the direct use of the primary employer in the normal course
of its business.’’27 642 F.2d at 1274. The court also specifi-
cally noted that the materials that Consolidated supplied were
to be ‘‘used and installed’’ by the primary employer. 642
F.2d at 1273.
In Atlantic County Authority supra, the Board applied the
Linbeck and Hoff Electric test in holding that the union law-
fully picketed the neutral gate through which the general
contractor provided a standby generator for installation by
the primary employer.28 The Board observed that the primary
employer’s contract obligated it to install the generator and
that although only a relatively few hours were required to be
expended by the primary employer to perform that part of its
contract, that the generator was an indispensable integral part
of the electrical system which the primary employer had con-
tracted to install, and therefore constituted a substantial part
of that contract and that the generator was supplied in order
that the primary employer could pursue its normal course of
business. 277 NLRB at 1044.
More recently, in Iron Workers Local 433 (Chris Crane),
294 NLRB 182, 183 (1989), the Board explained that in its
decisions in Linbeck, Hoff Electric, and Atlantic County Au-
thority,
[We] made clear that only suppliers providing mate-
rials essential to the primary employer’s normal oper-
ations or solely for the use of the primary’s employees
may lawfully be picketed. See, e.g., Electrical Workers
211 (Atlantic County Authority), 277 NLRB 1041, 1044
(1985) (delivery of generator essential to primary em-
ployer’s normal operation breached neutrality of gate);
J. H. Hoff Electric Co. v. NLRB, 642 F.2d at 1275
(court finds it significant that supplier delivered prod-
ucts used only by primary). And, as articulated by the
Court of Appeals for the District of Columbia in Hoff
Electric, ‘‘[t]he common sense notion of a supplier is
a party which delivers goods for the direct use of the
primary employer in the primary course of its busi-
ness.’’ Id. at 1274. [Emphasis added.]
In the instant case Santa Fe, at its Richmond rail terminal,
is in the business of, among other things, transporting inter-
modal freight for its customers. This freight is prepacked by
its customers in large metal containers or truck trailers, re-
ferred to collectively in this decision as vans, which are
transported by Santa Fe on flatcars. Santa Fe’s customers de-
liver the outgoing shipments of intermodal freight to the
Richmond rail terminal by truck. The customers employ ei-
ther their own employees or independent truckers to haul the
vans with the intermodal freight to the rail terminal. Santa
Fe, rather than using its own employees to load and unload
the vans onto and off of its railroad flatcars, employs an
independent contractor, Piggyback, to perform this work.
Pursuant to the terms of the contract between Santa Fe and
Piggyback, Piggyback’s employees work in the terminal’s
rail yard loading and unloading the intermodal freight (vans)
onto and off of the flatcars. This intermodal freight is deliv-
ered to Piggyback’s employees for loading and unloading in
the following ways: the truckdrivers employed by Santa Fe’s
customers or the independent truckers employed by the cus-
tomers, deliver the outgoing intermodal freight to
Piggyback’s employees by transporting the vans into the rail
yard through gate 3; the incoming intermodal freight is deliv-
ered to Piggyback’s employees by railroad flatcars, which
must pass through Indian Crossing; and, those trains which
have only a few flatcars carrying intermodal freight, and be-
cause of this are not transported directly to the area where
the Piggyback employees work, but go to another area of the
rail yard, are ‘‘switched’’ to the Piggyback employees via
rail tracks at Indian Crossing, the West End Switching spur,
as well as the Zone 3 Industries spur on occasion. The Santa
Fe employees, who, as described above, operate the incom-
ing trains which deliver the intermodal freight to Piggyback’s
employees and who, as described above, deliver the inter-
modal freight to Piggyback’s employees by ‘‘switching’’
flatcars to the appropriate tracks, entered and exited the rail
yard, during the time material, using gates 4, 4(b), and 5.
Lastly, with respect to gate 2, it is undisputed that during the
period of the picketing, UPS truck tractors were parked in
the parking lot immediately adjacent to that gate and that
several times daily during this period, supervisors of UPS
exited gate 2 with these truck tractors and drove them to the
dropoff point where they picked up and transported vans
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
containing intermodal freight to the rail yard through gate 3
(Tr. 488–490).
I am persuaded that the instant case differs factually in
meaningful respects from Linbeck and its progeny. Unlike
the crushed stone, lighting fixtures and power generator sup-
plied to the primary employers in those cases, the intermodal
freight delivered to Piggyback was not supplied for the pur-
pose of having Piggyback’s employees ‘‘use’’ the freight;
that is to load or unload the intermodal freight onto and off
of the railroad flatcars. Rather, the outgoing intermodal
freight was supplied to Piggyback’s employees by the neutral
truckers for Santa Fe’s ‘‘use’’; for Santa Fe to transport to
its destination. The incoming intermodal freight was supplied
to Piggyback’s employees by Santa Fe’s employees for Santa
Fe’s customers’ ‘‘use’’; for delivery to Santa Fe’s customers
by the customers’ truckers. Therefore, considering the con-
text of the delivery of the intermodal freight to Piggyback’s
employees, it is clear that neither Piggyback, nor Santa Fe,
nor Santa Fe’s customers, nor Santa Fe’s customers’ truckers,
considered Santa Fe’s customers or Santa Fe’s employees to
be suppliers of Piggyback when the customers’ truckers de-
livered the outgoing intermodal freight to the rail yard for the
purpose of having Santa Fe ship it to its destination or when
Santa Fe’s employees delivered the incoming intermodal
freight to the rail yard for the purpose of having Santa Fe
deliver it to Santa Fe’s customers. This is because the deliv-
ery of the intermodal freight to Piggyback’s employees by
Santa Fe’s customers and by Santa Fe’s employees does not
accord with ‘‘the common sense notion of a supplier [as] a
party which delivers goods for the direct use of the primary
employer in the primary course of its business.’’ Hoff Elec-
tric, supra, 642 F.2d at 1274.
I agree with the General Counsel and the Charging Party
that the common sense notion of supplies for Piggyback’s
operation would be cranes, tractors, oil and gas, office sup-
plies, maintenance services, and labor, and not the intermodal
freight delivered to Piggyback’s employees, inasmuch as that
freight was not delivered to Piggyback for its employees to
‘‘use’’ in the performance of their duties, but was delivered
so that it would be transported by employees of employers,
other than Piggyback, to its ultimate destination. Moreover,
I find it significant that since the intermodal freight was not
for Piggyback’s sole ‘‘use,’’ but was intended to be ‘‘used’’
primarily by other employers, that unlike Linbeck and its
progeny, the disruption caused by Respondent’s picketing in
this case was not confined solely to the primary employer,
but was foreseeably intended to impact upon the business of
neutral employers. Hoff Electric, supra, 642 F.2d at 1275. It
is for all of these reasons that I am persuaded that neither
the Board or the courts in Linbeck, and its progeny, meant
to extend the meaning of the term ‘‘supplier,’’ as used in
those cases, to the facts of this case.
3. The application of the Moore Dry Dock criteria
to the handbilling
As I have found supra, Respondent violated Section
8(b)(4)(i) and (ii)(B) by picketing the entrances to Santa Fe’s
Richmond rail yard which had been reserved exclusively for
the use of neutrals and had been designated as gates 2, 3,
4, and 5, and further violated Section 8(b)(4)(i) and (ii)(B)
by picketing gate 4(b) and the UPS dropoff point, an exten-
sion of gate 3. As I have also found supra, in connection
with and contemporaneously with this illegal picketing, the
pickets distributed handbills to the employees of the neutral
employers at the above-described locations. Admittedly the
handbilling was part and parcel of the Respondent’s pick-
eting campaign.
The handbills distributed to the neutral truckdrivers at
gates 3 and the UPS dropoff point were addressed ‘‘To Driv-
ers Entering this Rail Yard’’ and asked them ‘‘to respect our
picket line against Piggyback Services’’ and stated that under
the truckdrivers’ union contract they had a right not to do
business with Piggyback, and specifically asked them not to
deal with Piggyback’s employees by picking up or leaving
intermodal freight in the rail yard. The handbills distributed
to Santa Fe’s employees at gate 5 described Respondent’s
labor dispute with Piggyback and asked Santa Fe’s employ-
ees to refuse to deliver intermodal freight to Piggyback’s em-
ployees and to otherwise refuse to work with Piggyback’s
employees or to do work which would enable Piggyback’s
employees to perform Piggyback’s work. Lastly, the hand-
bills distributed to Santa Fe’s employees at gates 2, 4, and
4(b), stated Respondent had a labor dispute with Piggyback,
described the nature of the dispute, and stated, ‘‘we are ask-
ing you to refuse to deliver railcars to Piggyback employees
to work on, refuse to work with Piggyback employees, and
refuse to perform switching services to enable Piggyback
employees to do their work.’’
Section 8(b)(4)(i) and (ii)(B) of the Act, in pertinent part,
makes it an unfair labor practice for a union ‘‘to induce or
encourage any individual employed by any person, to engage
in, a strike or a refusal . . . to . . . transport, or to otherwise
handle . . . any goods, articles, materials . . . or to perform
any services,’’ or to ‘‘threaten, coerce, or restrain’’ any per-
son, with an ‘‘object’’ of ‘‘forcing or requiring’’ that person
to ‘‘cease doing business with any other person,’’ unless the
union is engaging in ‘‘publicity, other than picketing, for the
purpose of truthfully advising the public including consumers
and [union members], that a product or products are pro-
duced by an employer with whom the [union] has a primary
dispute and are distributed by another employer’’ and ‘‘such
publicity does not have an effect of inducing any individual
employed by any person other than the primary employer’’
to refuse to make pickups and deliveries or transport goods
or perform services ‘‘at the establishment of the employer
engaged in such distribution.’’
The fact that Respondent’s handbilling herein was part and
parcel of Respondent’s picketing campaign, which, as I have
found supra, had a proscribed secondary objective, warrants
the inference that the handbilling likewise had a proscribed
secondary ‘‘objective’’ encompassed by Section 8(b)(4)(B).
Moreover, as I have also found supra, the plain language
used in the handbills establishes that an object of the
handbilling was to force or require Santa Fe to cease doing
business with Piggyback by means of inducing the employ-
ees of Santa Fe and the truckers employed by Santa Fe’s
customers to cease doing their assigned job duties.
Respondent’s handbilling herein was not protected by the
publicity proviso to Section 8(b)(4) because the handbilling
succeeded in inducing the employees of neutral employers to
withhold their services from their employers. As a result the
handbilling cannot escape from the operation of Section
8(b)(4)(B), by virtue of the proviso exempting ‘‘publicity,
other than picketing, for the purpose of truthfully advising
631TEAMSTERS LOCAL 315 (SANTA FE)
29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the public, including consumers and [union members]’’; for
the handbilling herein had ‘‘an effect of inducing an indi-
vidual employed by [a neutral employer] to refuse . . . to
perform any services . . . .’’ Thus, the secondary effect of
the handbilling removes it from the protection of the pub-
licity proviso to Section 8(b)(4).
The remaining issue, whether Respondent’s handbilling in-
duced or encouraged employees of neutral employers within
the meaning of Section 8(b)(4)(i) and threatened, coerced or
restrained neutral employers within the meaning of Section
8(b)(4)(ii), must be answered in the affirmative. The plain
language contained in the handbills was reasonably cal-
culated to induce or encourage the employees of Santa Fe
and the truckers employed by Santa Fe’s customers to refuse
to perform their assigned work tasks. The inevitable con-
sequence of such a refusal would be to restrain or coerce
Santa Fe within the meaning of Section 8(b)(4)(ii). Accord-
ingly, the handbills distributed herein by Respondent’s pick-
ets induced and encouraged the employees of neutral em-
ployers within the meaning of Section 8(b)(4)(i) and re-
strained and coerced Santa Fe within the meaning of Section
8(b)(4)(ii) of the Act.
Having found that Respondent’s handbilling at gates 2, 3,
4, 4(b), and 5, and at the UPS dropoff point, had a secondary
object proscribed by Section 8(b)(4)(B) of the Act, and was
not protected by the publicity proviso to Section 8(b)(4), and
that the handbilling induced and encouraged the employees
of neutral employers, within the meaning of Section
8(b)(4)(i), and threatened, coerced and restrained neutral em-
ployers, within the meaning of Section 8(b)(4)(ii), I further
find that by engaging in this handbilling Respondent violated
Section 8(b)(4)(i) and (ii)(B) of the Act.
Alternatively, I find that since Respondent’s handbilling
herein was part and parcel of Respondent’s illegal campaign
of picketing in which handbills were distributed by the pick-
ets at the entrances to the rail yard reserved exclusively for
neutrals, that for this additional reason Respondent’s
handbilling violated Section 8(b)(4)(i) and (ii)(B), because it
was inextricably linked with Respondent’s unlawful pick-
eting. Cement Masons Union Local 337 (California Associa-
tion of Employers), 190 NLRB 261 fn. 1 (1971); San Fran-
cisco Building Trades Council (Goold Electric), 297 NLRB
1050, 1055–1057 (1990); cf. Broadcast Employees NABET
Local 31, 237 NLRB 1370, 1376–1377 (1978), enfd. 631
F.2d 944, 951 (D.C. Cir. 1980).
CONCLUSIONS OF LAW
1. Santa Fe is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) and Section 8(b)(4)
of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By picketing Santa Fe’s Richmond, California rail yard
at gate 3 from July 12 through August 29, at gate 5 from
August 10 through August 29, at gates 2 and 4 from August
24 through 29, all of which gates were reserved exclusively
for the use of neutrals; by picketing neutrals at gate 4(b) on
August 24 and 25 and at the UPS dropoff point on August
28 and 29; by picketing trains operated by Santa Fe’s em-
ployees at the Indian Crossing, the West Switching Lead
spur and the Zone 3 Industries spur from August 10 through
29; and, by engaging in the aforesaid picketing with an ob-
ject of forcing neutral employers to cease doing business
with Santa Fe and of forcing Santa Fe to cease doing busi-
ness with Piggyback, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(4)(i) and
(ii)(B) of the Act.
4. By distributing at Santa Fe’s Richmond, California rail
yard handbills to employees employed by neutral employers
at gate 3 from July 12 through August 29, at gate 5 from
August 10 through 29, at gates 2 and 4 from August 24
through 29, at gate 4(b) on August 24 and 25, and at the
UPS dropoff point on August 28 and 29, and by engaging
in this handbilling with an object of forcing neutral employ-
ers to cease doing business with Santa Fe and of forcing
Santa Fe to cease doing business with Piggyback, the Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(b)(4)(i) and (ii)(B) of the Act, I shall recommend that it
be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
On the foregoing findings of fact, conclusions of law, and
on the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended29
ORDER
The Respondent, General Truck Drivers, Warehousemen,
Helpers and Automotive Employees of Contra Costa County,
Local 315, affiliated with International Brotherhood of Team-
sters, AFL–CIO, Richmond, California, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Inducing or encouraging any individual employed by
Santa Fe or any other person engaged in commerce or in an
industry affecting commerce to engage in, a strike or refusal
in the course of his employment to use, manufacture, trans-
port, or to otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services, where
an object thereof is to force or require Santa Fe, or any per-
son engaged in commerce or in an industry affecting com-
merce, to cease using, selling, handling, transporting, or oth-
erwise dealing in the products of, or to cease doing business
with, Piggyback.
(b) In any manner threatening, coercing, or restraining
Santa Fe or any other persons engaged in commerce or in
an industry affecting commerce, where an object thereof is
to force or require Santa Fe, or any other person engaged in
commerce to cease using, selling, handling, transporting, or
otherwise dealing in the products of, or cease doing business
with, Piggyback.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Post at its office and meeting halls copies of the at-
tached notice marked ‘‘Appendix.’’30 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Deliver to the Regional Director for Region 32 signed
copies of the notice in sufficient number for posting by Santa
Fe, if willing, at all places where notices to employees are
customarily posted.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT engage in or induce or encourage any indi-
vidual employed by The Atchison, Topeka and Santa Fe
Railway Company, or by any other person engaged in com-
merce or in an industry affecting commerce to engage in, a
strike or refusal in the course of his employment to use,
manufacture, transport to, or to otherwise handle or work on
any goods, articles, materials, or commodities, or to perform
any services, where an object thereof is to force or require
The Atchison, Topeka and Santa Fe Railway Company, or
any person engaged in commerce or in an industry affecting
commerce, to cease using, selling, handling, transporting, or
otherwise dealing in the products of, or to cease doing busi-
ness with, Piggyback Services, Inc.
WE WILL NOT threaten, coerce, or restrain The Atchison,
Topeka and Santa Fe Railway Company or any other person
engaged in commerce or in an industry affecting commerce,
where an object thereof is to force or require The Atchison,
Topeka and Santa Fe Railway Company, or any other person
engaged in commerce to cease using, selling, handling, trans-
porting, or otherwise dealing in the products of, or to cease
doing business with, Piggyback Services Inc.
GENERAL TRUCK DRIVERS, WAREHOUSEMEN,
HELPERS AND AUTOMOTIVE EMPLOYEES OF
CONTRA COSTA COUNTY, LOCAL NO. 315,
AFFILIATED WITH INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, AFL–
CIO