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December 10, 1964

Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner,
LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Transit Mix Concrete Corp., Colonial Sand & Stone Corporation, Ryan Redi-Mix Co., M. F. Hickey Company, Principe-Danna, Inc., Respondents. Ivan C. McLEOD, Regional Director of the Second Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 282, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Respondent

The opinion of the court was delivered by: ROSLING

In each of the proceedings, captioned as above, the Regional Director of the Second Region of the National Labor Relations Board (hereinafter 'Director' and 'NLRB' or 'Board') applies to this Court by Order to Show Cause supported by petition for an order restraining the respondents from certain activities, charged as unfair labor practices, pending the final disposition of proceedings concerning these matters now before the Board. *fn1"

In the one instance the respondents designated are Local 282, International Brotherhood of Teamsters, etc. (Local 282), and certain companies engaged in the manufacture and sale of concrete, asphalt and related products in the State of New York (collectively 'Concrete Companies', and severally for convenience referred to as 'Transit', 'Colonial', 'Ryan', 'Hickey' and 'Danna').

 In the other, Local 282 is the sole respondent.

 The issues involved in the two proceedings and the evidence bearing upon these issues were so closely interrelated that the application has been heard by the Court in a joint trial of both proceedings, and although the determinations herein made and directions given are addressed to each in its status as an independent cause, the facts and applicable law are presented in the following in a single exposition.

 In the proceeding in which the Local alone and the Concrete Companies are the respondents the charging party is George Negri, Inc. (Negri) which brings its charges against the Local alone under Section 8(b)(4)(i)(ii)(A) and (B) of the Act, and against both Local and the Concrete Companies under 8(e). *fn2"

 In the companion proceeding the charging parties are Walter Michalowski and Joseph Iocca, truckdrivers, who each owned at the relevant period a single truck ('owner-operators'). These filed their charges against the local under the same provisions of the Act.

 The charges need not be detailed, for they have served their purpose in giving the Board a necessary jurisdiction to issue a complaint into which the charges are merged. *fn3"

 The allegations of the complaint in turn are embodied in those which comprise the petition before this Court. These may be summarized as follows:

 As to the Local jointly with the Concrete Companies (Negri's charges).

 Negri, a New York Corporation with place of business in Rego Park, Queens, is a supplier of concrete and related products to building and construction sites. It had during the relevant period no plant or yard for the manufacture of concrete, filling inventory needs for resale to its own customers by purchases from the Concrete Companies. The chauffeur employees of these last were members of, or represented by the Local.

 About July 1, 1963, the Local entered into a three year contract *fn4" with the remaining respondents and others, which contained the following provision:

 'Section 12-Company Equipment '

 * * * * * *


'In the event the employer hires additional equipment, preference shall be given to such equipment as is operated by Union men. Additional equipment may be hired only if all the Employer's own equipment of the same type, which is available for use is being operated by the employees of the Employer.'

 About May 8, 1964 the Local notified respondent companies and these others that they were evading the terms of the provision just quoted. The Local has, in the view of the petitioner, thereby in violation of the provisions of the Act earlier cited entered into contracts under which the 'employers cease or refrain or agree to cease or refrain from doing business with Negri and other persons.'

 Additionally, at about the time mentioned, the Local entered into and thereafter maintained in force an agreement with these other contracting parties 'whereby (they) have ceased and refrained, and have agreed to cease or refrain, from doing business with Negri and other persons who do not have plants or yards for the manufacture of concrete. Threats of ensuing work stoppages were made by the Local if such contract employers failed of obedience to the stipulated boycott. Specific instances of such threats addressed to Hickey, Ryan and Danna were cited. *fn5" The threats to Danna were in the presence of its employees, serving thereby as basis for a charge of inducing and encouraging the employees to strike or to refuse 'in the course of their employment to use, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform services.'

 Further, petitioner avers, 'since on or about June 12, 1964, respondent Concrete Companies have ceased doing business with Negri and other persons who do not have plants or yards for the manufacture of concrete.'

 As to the Local alone (Charges of Michalowski and Iocca).

 The petition alleges that Michalowski and Iocca are 'individuals who own and operate one or more trucks which customarily are used to perform trucking services for persons engaged in the manufacture and sale of concrete, asphalt and other building materials.' Lizza & Sons, Inc. (Lizza), a corporation located in Selden, New York, is engaged in the manufacture and sale of asphalt. Its chauffeurs, operators of Euclid and Turnapull equipment, were members of, or represented by, the Local. Michalowski and Iocca had regularly performed trucking services for Lizza. *fn6" They were owner-operators, and had no employer's contract with the Local.

 The petition further alleges that on or about July 1, 1963, Lizza and other persons (employers) entered into the Ready-Mix contract with the Local of which Section 12 has been quoted above. About the same time the Local entered into a second contract styled 'Excavating Contract 1963-1966', with Lizza, Parisi (M. Parisi & Son of Maspeth, Queens, an excavating firm) and other persons (employers), which contained the following provision:

 'Section 6 '

 * * * * * *


(c) For the purpose of providing maximum employment for his own employees working under this contract, the Employer shall not hire outside trucks or equipment unless all his usable trucks and equipment are in use. Thereafter outside trucks and equipment shall be hired only from employers who have signed contracts with Local 282 containing identical terms and conditions with this contract, so long as such trucks and equipment are available. 'Trucks and equipment' shall include the following: trucks, tractors, trailers, euclids, turnapulls, and other equipment within the jurisdiction of Local 282.

 About April 1964 the Local threatened to strike Parisi and other persons who had been performing work at the New York World's Fair site if they continued to use trucks, the owners of which did not have contracts with the Local.

 On or about May 7, 1964, a representative of the Local called upon Lizza and in the presence of its employees announced that if Lizza used owner-operators who were not under contract with the Local -- (Michalowski and Iocca were non-contract owner-operators and had from time to time performed trucking services for Lizza) -- they would be sent out of Lizza's yard.

 Such conduct on the part of the Local -- (so the petitioner maintains) -- violates the relevant provisions of the Act earlier cited heren, in that said 'respondent has (thereby) entered into contracts * * * whereby such employers cease or refrain or agree to cease or refrain from doing business with Michalowski and Iocca and other persons,' and has 'induced and encouraged individuals employed by Lizza and other persons * * * to engage in a strike or a refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on * * * materials * * * or to perform services, and has threatened, coerced and restrained Lizza, Parisi, and other persons engaged in commerce or in an industry affecting commerce.'

 In both petitions it is alleged that an object of said actions was to compel the employers affected to cease doing business with the charging parties.

 Both petitions, moreover, conclude with a prayer for broad injunctive relief pending the Board's determination of the issues of unfair labor practice.

 Evidence adduced by petitioner upon the hearing largely sustains the factual assertions tendered by petitioner. Notwithstanding some omissions of detail from the overall proof and a haziness of recollection of incident by several witnesses, placed on the stand by the Board and recognized by the Court as hostile, the charges are found by the Court to have been established with a sufficient pertinence and prima facie force to demonstrate that the sections proposed by petitioner as violated have indeed been infringed.

 The respondents called no witnesses to testify in their behalf. In summary the proof adduced tends to establish the following:

 On or about July 1, 1963 the Local had entered into the Ready-Mix contract with Lizza, the Concrete Companies and others, and the Excavating contract with Lizza, Parisi and others. The contracts contained the clauses quoted in the petitions.

 In April 1964 Parisi was engaged in excavating and other work at the World's Fair with Local 282 members driving trucks under his contract with the Local. Requiring additional drivers and equipment for his job, Parisi hired owner-operators, engaging truck and driver as a unit with compensation unapportioned and computed at an hourly rate. The trucker paid his own Social Security, withheld his own income tax and bore the expense of fuel, repairs and maintenance.

 On April 19, 1964 a Local delegate (Baia) appeared at the Parisi job site and after some checking and inquiry informed Parisi that if it continued to hire trucks whose owners did not have a contract with the Local, the union trucks would leave the job because they would not work with those who did not have a contract with Local 282.

 On April 21 following, the Local met with its contract employers at the Hotel Commodore. O'Rourke, president of the Local, acted as chairman. Other representatives of the Local were in attendance. O'Rourke declared from the rostrum that there was unrest among his membership and 'that the situation might get out of hand', evidenced by spontaneous work stoppages, if the employers failed to accede to the demand that they 'confine their batching (loading and transporting their material) to their own equipment and not load these owner-driver gypsy fellows.'

 It is a fair inference from the sequel, although the testimony as to what was said at the meeting is not wholly clear, that an understanding was reached that the Concrete Companies and others similarly active were not to load the 'trucks of people who do not have plants' (for the manufacture of material) and that the ban was to extend to Negri. Negri, though he had no plant, owned twelve trucks representing a substantial capital investment. His drivers were all members of the Local with which he had had a contract for many years.

 The meeting was then adjourned to May 28, apparently to have a wider attendance of employers. In the meantime a business agent of the Local visited Lizza's premises and informed its superintendent in the presence of the union's shop steward that after the conclusion of that day's work Lizza was no longer to use hired owner-operator trucks, as these lacked a contract with the union, under penalty of having them sent out of the Lizza yard. Michalowski and Iocca, who had theretofore been engaged with their trucks by Lizza, now found themselves denied employment as owner-operators by that firm.

 A letter under date of May 8 on the letterhead of the Local addressed 'To All Employers' over the facsimile signature of O'Rourke in the Local's behalf appears at this juncture to have been circulated among the employers of drivers, members of the Local in the 'Ready-Mix Concrete' industry. *fn7" The missive spoke in terms of destruction of jobs by 'peddlers', of 'abusive practices', and of the membership '[taking] matters in their own hands.' It noted that 'some employers are evading the terms of their collective bargaining agreements by having Ready-Mix Concrete delivered by other means than by their employees' and 'call(ed) upon each and every employer to have all Ready-Mix Concrete it sells delivered by its own employees under the collective bargaining agreement, and not to allow its products to be delivered through peddlers or engage in other delivery schemes.'

 Finally with a disclaimer of an intent to threaten, the letter minatorily concluded that 'if this problem is not solved within two weeks, we shall not be responsible for any wildcat stoppage that may occur * * * Our members are in such a state of unrest concerning their jobs that the union will be powerless to control them any longer.'

 On May 28 the second meeting of the Local's representatives with employers was held, this time at the Hotel New Yorker. It was more largely attended by officers of employers, among whom all the respondents were represented, than had been the April 21 meeting. Again O'Rourke occupied the chair and in his remarks to those assembled instructed the employers that 'whatever goes through your plant should be delivered by your truck,' that the industry confronted an emergency and a 'risk and threat of wildcat action,' and that 'if this thing is not cleaned up in a couple of weeks something serious can be expected to take place in the industry.' In summation O'Rourke instructed that 'after June 15 he wanted the suppliers to stop loading outside people * * * owner-drivers, gypsies; people without plants.'

 After an indefinite but brief interval following the meeting the O'Rourke circular of May 8 was distributed with an addendum printed on the reverse side. It was dated May 28 and had for its only heading the slogan 'Employers Destroy Labor Standards' and in lieu of signature a subscription in bold face type rallying the membership to action with a concluding exhortation to 'watch for strike day.'

 The body of the announcement dealt with a number of alleged grievances against employers, not here relevant. Significant and pertinent, however, was the following:

 'Do you know that Colonial Sand & Stone, Transit Mix, Hickey, Certified Preferred to mention but a few, have closed some of their plants. The Employers are forced to close their plants while the work is going out the back door. For instance it has been known that a certain employer hires over one hundred owner-operators daily. Another hires one hundred sixty-five. Yet they report a very small portion of this to the Pension and Welfare Plan.'

 Within a few days the policy of boycott thus enunciated was being put into effect by union representatives. Negri was barred from loading its trucks by Transit, Negri's employee being informed that the suppliers could not load Negri or 'any other gypsy that did not have a plant.' Such refusal was accompanied by advice to Negri that the Local's 'shop stewards were going to pull their men out' and that the whole industry would have a strike if Transit continued to load Negri trucks. A subsequent attempt by Negri to obtain materials from other sources in the contracted industry met with a like refusal.

 Problem Confronting the Local

 The Local is confronted with a genuine labor problem recognized as traditionally a subject for collective bargaining and of such dimension that a failure to solve it may well destroy those standards which long years to arduous labor-management negotiations have painfully achieved.

 The owner-operator, or to give him his pejorative appellation, the gypsy trucker, rents himself and his equipment for a lump sum, which provides for the owner-driver after satisfying the inexorable demands of the machine for its maintenance and operation a compensation significantly less than the union standard. When, as is occasionally the case, the driver is one other than the owner, the owner being an employer without a union contract, *fn8" the driver, even if he is a member of the Local, as is often the case, will be paid less than union scale by the single-truck owner. Moreover, no contributions are made in such employment relationship by the employer to Union Welfare and Union Pension funds in behalf of the driver, whether the owner himself drives or his single employee does. *fn9"

 The erosive effect on wages and hours bargained for by the union and the temptation to contract-employers to divert or subcontract the trucking operation to noncontract owner-operators at lump sums that mask a below union scale compensation for the driver is at once apparent. In the periodic negotiating of labor-management contracts it is a source of strength for the employers, but concomitantly a discouraging element for labor's representatives, to know that in the background of the bargaining there exists a large and growing unorganized mass of 'independent contractors' prepared in a competition with the Local's membership for the available jobs to offer their services to the employers at a scale substantially below even that currently in force. *fn10"

 Economic Remedies Lawfully Available to Union

 It is not the Court's function to rewrite bargaining agreements, *fn11" nor for that matter generally to suggest what may properly be sought for and, if agreed to, incorporated in such contract. For greater clarity in a later expositionof purposive strictures upon the secondary boycott, notwithstanding.

 Thus, the Local may, without violation, stipulate that no trucking of material may be subcontracted; it may require that all transportation from supplier to job site be effected in equipment operated by the regularly employed drivers of the materialman, and if by reason of insufficiency of vehicles, additional equipment is to be leased, that the leasing be of the vehicle alone, and not in a joint hiring of truck to cart and owner to drive at a lumped compensation. *fn12"

 The Local may insist, moreover, that if trucking services are performed by others, union standards be maintained as to those who drive the trucks. *fn13" In implementation of such union standards provision the Local may properly bargain for an agreement that the hiring of a driver, even though he tenders, concomitantly with his services, a lease of a truck he owns be not upon a lumped compensation unallocated as between equipment and driver, but under an arrangement whereby wages in truck hire are paid for by separate checks, the wages at union scale, with welfare and other benefits, appropriately earmarked, remitted to the hirer as 'employer', and the truck rental computed upon a realistic cost basis in a relevant market. *fn14"

 Fairly claimable jobs may, moreover, be staked out and protected, and employment opportunities earlier lost may be recaptured. *fn15"

 There are, however, no absolutes in this area of labor-management bargaining; only gradations in a spectrum ranging in polarity from the legal to the illegal. *fn16"

 Contract Provisions and Conduct Violative of Taft-Hartley and Landrum-Griffin

 Clearly illegal as a union signatory requirement is Section 12 of the Ready-Mix contract in its demand that the employer in hiring additional equipment shall give 'preference * * * to such equipment as is operated by Union men.' For the same invalidity Section 6(c) of the Excavating Contract in stipulating that 'outside trucks and equipment shall be hired from employers who have signed contracts with Local 282' etc. must be struck down. *fn17"

 The threats of the Local addressed to the Concrete Companies of work stoppages unless they cease doing business with Negri and other persons not having plants or yards for the manufacture of concrete likewise violate the Act. *fn18" And when the threats are, as here, shown on occasion to have been made in the presence of the employees whose employer is coerced, the inducement and encouragement which the statutory provision interdicts has been demonstrated. *fn19" To the extent, moreover, that the respondent concrete companies, yielding to union duress or persuasion, join with the Local in an understanding, express, implied or merely de facto, to exclude from business dealings 'persons' satisfying standards of ineligibility on other than lawful grounds, the actions of those respondents in this regard constitute an illegal secondary boycott which must be restrained. *fn20"

 Finally, the threats of work stoppage made to Lizza, to compel its agreement -- a pressure to which it yielded -- to refuse to hire the lumped truck owner-driver services of Michalowski and Iocca, charging parties in the second of the above proceedings, were violative of the provisions of the Act *fn21" in that the thrust of the union's activity was directed at the neutral employer to boycott the owner-operator as a person not under contract with the local. Had the Local's approach to the problem been directed toward negotiation with its related employers of an agreement, bona fide, looking to conserve the job opportunities of its membership in such employment, it is not unlikely that provisions could have been formulated by the Local's representatives for inclusion in the bargained agreement, which, though inflicting an incidental harm upon the gypsy 'independent contractors', would nevertheless, have been valid. As to whether the negotiations could have been carried through to a successful conclusion, however, the Court will not speculate, limiting itself to the observation that the continued survival of the gypsy in the industry may well constitute for the employers vis-a-vis the union a desirable 'third force' in labor-management negotiations. *fn22"

 Excision of Illegal Provisions Not Feasiible or Warranted -- Duration of Restraint Directed

 The Local's counsel proposes that 'if the Court finds (subdivision (c) of Section 6 of the Excavating contract) an illegal union signatory clause, it should order only the violative language to be excised and should not enjoin implementation of the entire clause.' This, the attorney suggests, could be achieved by directing that there be excised from the provision the restrictive language which limits potential lessors of equipment-cum-driver to a class of employers comprised of those who have signed contracts with Local 282. (Words underscored in original brief and here are those proposed by Local's counsel to be deleted from the clause.) The employers eligible for such subcontracting would, following the editing of the language of the clause as proposed, be found within an expanded classification of employers defined as those who maintained union standards, but without taking into account their union affiliation.

 The Local urges upon the Court as persuasive precedent for such excision the procedure followed in Meat and Highway Drivers, Dockmen, etc. v. N.L.R.B., supra, fn. 12, wherein the Court wrote (335 F.2d p. 717) with respect to a similarly objectionable union signatory clause, as follows:


'* * * Excision of the objectionable language would give the employers greater latitude under the contract. Thus excision should be acceptable to them. And the union, certainly, would rather see the language deleted than lose the benefit of the remainder of the clause. Deletion, then, would leave the total collective bargaining agreement in a state close to the actual agreement of the parties. And deletion would satisfy totally the requirements of ยง 8(e). Accordingly, we hold that the Board should not invalidate more of the contract than is unlawful, 'where the excess may be severed and separately condemned as it can here.' National Labor Relations Board v. Rockaway News Co., 345 U.S. 71, 79, 73 S. Ct. 519, 524, 97 L. Ed. 832 (1953).' *fn23"


This Court feels, however, that the situation it here confronts neither permits of, nor warrants, such remedial surgery. We do not now deal with a narrowly limited contract provision, but rather with a conflation of what is illegal in the bargaining agreement itself and subsequent oral understandings and conduct likewise illegal or at the least highly suspect. We are left in uncertainty as to what the current understanding between the parties may be and as to what considerations moving from the one contracting party to the other constituted payment for reciprocated concessions and benefits.


The situation is one wherein excision treads too closely on the heels of redrafting, a procedure in which the Court may not engage. (See fn. 11, supra). The scope and complexity of the activities violative of the Act are such, and are so implicated with those which might have been lawful, were the latter more sharply delineated and restricted, that the Court feels constrained to issue an interim order enjoining activity generally as prayed for, but with the limitations hereinafter noted.


It is proper that an immediate cessation of illegal activities be directed and a reasonable interval established for the untoward effects of those activities to subside. That interval will be additionally useful to the respondent parties, should they be so minded, for bargaining anew in an effort to devise ingenious remedies for the troubles, hereinbefore noted, which beset their industry, without their invading the statutorily secured right of the owner-operator and the plantless trucker to be free of secondary boycotts directed at them.


When what is now held illegal may thus be rendered conformable to law by effective bargaining and when much that is permissible must be currently restrained because of the confusion of the valid with what is inhibited, it would be unreasonable for the Court to impose a restraint for a duration limited only by the period, however long, which must elapse before the Board shall have made its determination of the issues. The burdens of the Board are notoriously heavy, and its processes in consequence are slow. But the respondents if ultimately successful to any extent would gain an empty victory if success were to come to them only after irremediable damage has been suffered through delay.


Relief Granted


Injunctions shall, accordingly, issue in each proceeding of the scope noted below, pending the final disposition of the relevant proceedings before the petitioner N.L.R.B., but if such final disposition shall not have been made on or before April 1st, 1965, the injunction shall expire on such date. Leave, however, is granted to petitioner to move for an extension of the injunction by motion returnable before such expiration date. *fn24" The Court has not here found illegal the language in Section 12 of the Ready-Mix contract and in Section 6 of the Excavating contract insofar as it stipulates that additional equipment may be hired by an employer under contract only after all its available equipment is being used by its own employees. The finding of illegality is limited to a determination that the language purporting to define the class of those who may be engaged for such excess trucking as being comprised only of union people, whether under union contract or holding union membership, is illegal as stipulating a union-signatory requirement, and a further finding is made that the legal portions of the provisions affected may not be severed and validated through excision of that which is illegal. The respondent Local, on the other hand, is not restrained from bargaining with its contract-employers and others for provisions embodying that which is thus held lawful, nor from exercising its traditional rights in bringing those negotiations to fruition.


The injunction orders shall contain the directions applied forr by petitioner, limited in scope as indicated, and applicable to the facts herein found in respect of the issues tendered. *fn25"


Settle separate orders in each proceeding on notice.

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