Automotive, Petroleum, Etc., Local 618

National Labor Relations Board - Board Decisions

Dec 19, 1961

134 N.L.R.B. 1363 (N.L.R.B. 1961)

AUTOMOTIVE, PETROLEUM, ETC., LOCAL 618 1363
approved or having contracts with District No. 9, Interna-
tional Association of Machinists.
DISTRICT No. 9, INTERNATIONAL ASSOCIATION
OF MACHINISTS, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Automotive , Petroleum & Allied Industries Employees Union,
Local 618, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America and
Greater St. Louis Automotive Trimmers and Upholsterers
Association , Inc. Case No. 14-CE-1. December 19, 1961
DECISION AND ORDER
On November 22,1960, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
The complaint alleges and Respondent admits that Greater St.
Louis Automotive Association, Inc., herein called Car Dealers Asso-
ciation, is an employer association consisting of firms in the St. Louis,
Missouri, area engaged in selling and servicing automobiles and auto-
motive parts. In the operation of their business the members of the
Car Dealers Association, during the past 12 months, a representative
' In support of the Trial Examiner 's findings and conclusions the Board relies on
District No. 9, International Association of Machinists , AFL-CIO ( Greater St. Louis
Automotive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1354, Highway
Truck Drivers and Helpers , Local 107, International Brotherhood of Teamsters , Chauffeurs,.
Warehousemen and Helpers of America , Independent (E. A. Gallagher & Sons), 131
NLRB 925.
134 NLRB No. 139.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period, had a gross volume of business exceeding $500,000 and during
this time purchased goods and materials valued in excess of $50,000
which were shipped directly to their respective premises in St. Louis,
Missouri, from points outside the State of Missouri. The record shows
that the Car Dealers Association elects officers from among its mem-
bers, has a salaried executive vice president, that a committee ap-
pointed or elected by the employer-members has negotiated contracts
with the Respondent, and that each employer-member signs an identi-
cal; individual contract. Accordingly, we find that the Car Dealers
Association,, which is party to the alleged Section 8(e) contract in-
volved herein,2 bargains collectively for its employer members, is
is engaged in commerce within the meaning of the Act, and that it
would effectuate the purposes of the Act to assert jurisdiction.3
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Automotive,
Petroleum & Allied Industries Employees Union, Local 618, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, its officers, agents, representatives,
successors , and assigns, shall:.
1. Cease and desist from :
(a) Maintaining, giving effect to, or enforcing the contracts entered
into by Local 618 and the members of the Greater St. Louis Automo-
tive Association, Inc., on or about August 15, 1959, and during June
1960, insofar as said contracts provide that :
Whenever the Employer finds it feasible to send work out that
would ordinarily be performed by his employees, preference will
be given to such shops or subcontractors having contracts with
the Union.
(b) Entering into, actively maintaining, giving effect to, or en-
forcing any other contract or agreement , express or implied, whereby
the members of the Greater St. Louis Automotive Association, Inc.,
cease or refrain , or agree to cease or refrain, from handling, using,
selling, transporting, or otherwise dealing in any, of the products of
any other employer, or from doing business with any other person.
2 For jurisdictional purposes , it is sufficient, as we find, that the Car Dealers Asso-
ciation was party to the contract with the Respondent Union Cf General Drivers,
Chauffeurs grid Helpers , ' Looal Union No. 886, affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of America ( James D. O'Dell and
H. H. Hulme, Jr., Ada Transit Mix), 130 NLRB 788. • • •
s Siemons Mailing Service, 122 NLRB 81, 84; Restaurant & -Tavern Owners Association
of Salem, 126 NLRB 671.
AUTOMOTIVE, PETROLEUM, ETC., LOCAL 618 1365
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act. _
(a) Post at its office, place of business, and meeting place in St.
Louis, Missouri, copies of the notice attached hereto marked "Ap-
pendix A." a Copies of said notice, to be furnished by the Regional
Director for the Fourteenth Region, shall, after being duly signed
by the Respondent's representative, be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted. Reasonable,
steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Furnish to the Regional Director for the Fourteenth Region
signed copies of the aforementioned notice for posting by members
of the Greater St. Louis Automotive Association, Inc., St. Louis, Mis-
souri, if the Companies agree, in places where notices to employees
are customarily posted. Copies of said notice, to be furnished by the
Regional Director, shall, after being signed by Respondent, as indi-
cated, be forthwith returned to the Regional Director for disposition
by him.
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, of the steps taken
to comply herewith.
MEMBERS FANNING and BROWN concurring and dissenting :
We agree with our colleagues that Section 8 (e) of the Act voided
article XXV ("subcontracting work") of the August 1959 contract,
that Section 8 (e) is solely concerned with entering into such agree-
ments,' and that Section 8(b) (4) covers union compulsion of employ-
ers to enter into and perform such agreements. No 8(b) (4) allegation
is before us, however; and we do not find that this record establishes
either that Respondent has entered into a new 8 (e) agreement with
Association members since the operative period of Section 8(e) or
that they have otherwise agreed since then to be bound by article XXV
of the preexisting agreement.
Entering into an agreement requires a mutuality of assent to be
bound. Such meeting of minds is, however, not established by show-
ing the efforts of one party to enforce an ag're'ement declared void by
statute, nor by the other party's failure to disavow the legality of such
void agreement.
Accordingly, we would dismiss the complaint.
4In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant • to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
6 See Mary Feifer, d/b/a American Feed Company, 133 NLRB 214. .
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND To ALL EMPLOYEES OF EMPLOYER-
MEMBERS OF GREATER ST. LOUIS AUTOMOTIVE ASSOCIATION, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT enter into, actively maintain, give effect to, or
enforce any contract or agreement, express or implied, with any
member of Greater St. Louis Automotive Association, Inc., or
any other employer, whereby such employer ceases or refrains, or
agrees to cease or refrain, from handling, using, selling, trans-
porting, or otherwise dealing in any of the products of any other
employer, or from doing business with any other person.
WE WILL 'NOT maintain, give effect to, or enforce the contracts
entered. into by the members of the Greater St. Louis Automotive
Association, Inc., and the undersigned Union on or about August
15, 1959, insofar as said contracts provide that :
Whenever the Employer finds it feasible to send work out
that would ordinarily be performed by his employees, prefer-
ence will be given to such shops of subcontractors having con-
tracts with the Union.
AUTOMOTIVE, PETROLEUM & ALLIED INDUSTRIES
EMPLOYEES UNION, LOCAL 618, AFFILIATED
WITH INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN & HELPERS
OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended, 61 Stat . 136, 73 Stat. 518, herein called the Act, was heard in St.
Louis , Missouri , on August 22, 1960 , pursuant to due notice to all parties. The
complaint issued by the General Counsel of the National Labor Relations Board,
and based on charges duly filed and served, alleged that the Respondent had engaged
in unfair labor practices within the meaning of Section 8(e) of the Act. In its
answer , duly filed , the Respondent Union denied the commission of any unfair labor
practices.
Pursuant to Section 10(I) of the Act, the General Counsel filed a petition for an
injunction in the United States District Court, Eastern District of Missouri, and
a hearing on that petition was had before Judge Randolph H. Weber of that court on
AUTOMOTIVE, PETROLEUM, ETC., LOCAL 613 1367
August 4, 1960.1 By stipulation at the hearing before the duly designated Trial
Examiner the parties agreed that the transcript of hearing in the district court
proceeding be received in evidence and that the testimony of witnesses recorded
therein be considered by the Trial Examiner as if the witnesses appeared and testified
before the Trial Examiner. The parties further agreed that no further testimony
be taken and that the Trial Examiner should issue an Intermediate Report on the
stipulated record. Counsel waived oral argument. At the close of the hearing,
the Respondent submitted to the Trial Examiner a copy of the brief which the Union
filed earlier in the 10(1) proceeding and, subsequent to the hearing, counsel for the
General Counsel filed a brief in support of the complaint.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE COMMERCE ISSUE
Greater St. Louis Automotive Trimmers and Upholsterers Association, Inc., herein
called Trimmers, is a nonprofit corporation, organized under the laws of the State
of Missouri. It is an employer association, formed for the purpose of bargaining
collectively on behalf of its 10 members, among them being Gravois Auto Tops and
Seat Cover Mart, Inc. All of the association members have their premises in the
St. Louis area where they are engaged in the fabrication, installation, and sale of
automotive seat covers, convertible tops, and upholstery trim. The Board has held
that all members of an association that participate in, or are bound by multiemployer
bargaining negotiations constitute a single employer for jurisdictional purposes.
Siemons Mailing Service, 122 NLRB 81, 84. Moreover, where the total volume of
business for all the members of such an association meets the commerce standards
set by the Board, the Board will assert jurisdiction over the association and all its
members. Funeral Directors of Greater St. Louis, Inc., et al., 125 NLRB 241; Cos-
mopolitan Studios, Inc., 127 NLRB 788; Restaurant and Tavern Owners Association
of Salem, 126 NLRB 671. The record contains a stipulation of the parties that the
annual out-of-State purchases of Seat Cover Mart and Gravois Auto Tops are ap-
proximately $30,000 and $27,000, respectively. It is, therefore, evident that the
members of the Trimmers Association, as a group, annually purchase material
valued at more than $50,000 from points outside the State of Missouri. Accord-
ingly, I find that the Charging Party, and its members, are engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Automotive, Petroleum & Allied Industries Employees Union, Local 618, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, herein called Local 618 or Union, is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
The Greater St. Louis Automotive Association, Inc., herein called Car Dealers, is
an organization of automobile agencies in the St. Louis area, having as one of its
objectives the representation of its various members in collective-bargaining negotia-
tions with Local 618. During the summer of 1959, a labor committee for the Car
Dealers met with representatives of Local 618 and negotiated the terms of a collec-
tive-bargaining agreement. When the parties reached agreement on the terms of a
new contract, the latter was not signed by the aforesaid labor committee for the
Car Dealers. Instead, a separate contract, though identical in terms, was executed
by each member of the Association with Local 618. Such agreements were signed by
Forest Cadillac, Clayton Motors, E. M. Stivers, and L. M. Stewart, as well as by
most of the other members of the Car Dealers Association. These contracts were
to be effective from August 15, 1959, until August 15, 1964, a period of 5 years.
Each contained the provision, set forth below, the application and construction of
which present the issue to be decided in this case:
Article 25. Sub-contracting work. Section 1. Whenever the Employer finds it
feasible to send work out that would ordinarily be performed by his employees,
' At the conclusion of the aforesaid hearing, the court took the petition under advise-
ment and a ruling is now pending.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preference will be given to such shop or sub-contractors having contracts with
the Union.
In May'1960, the Union initiated a strike against four members of the Trimmers
Association and established picket lines at the shops of Seat Cover Mart, Gravois
Auto Tops, Gregerson, Inc., and Ollie's Auto Top. This strike was still in progress
at the time of the hearing in the instant matter. During the month of June 1960,
Carl Gibbs, an assistant business agent for Local 618, contacted several of the auto-
mobile dealers to remind them of the union dispute with the Trimmers and to state
that the Union considered it a violation of article 25 for the dealers to continue
business relations with the Trimmers.
Robert L. Bradbury, service manager for Forest Cadillac, testified that in a tele-
phone conversation with Gibbs on about June 3, 1960, the latter inquired as to
whether Forest Cadillac was sending any work to Seat Cover Mart. When Bradbury
replied in the affirmative, Gibbs stated that, because of the strike then in progress,
this constituted a violation of their collective-bargaining agreement . Bradbury dis-
puted this construction of their contract, but Gibbs reiterated that the Union con-
sidered it a violation for the auto dealers to continue doing business with Seat Cover
Mart. Gibbs concluded the conversation with the request that Forest Cadillac send
its seat cover work to the Fitwell Company, the latter being an employer with whom
the Union had a contract . Business Agent Gibbs corroborated the foregoing testi-
mony. He further testified that although Bradbury disagreed with the Union's con-
struction of the contract, Bradbury at, no time took the position that article 25
was void. According to Gibbs during this same period , he discussed this matter
with the officials of two other dealers, namely, Rex Worman of E. M. Stiver Com-
pany and Norbert Miller of L. M. Stewart Company, and in both instances the con-
versations were similar to that which he had with Bradbury. Gibbs testified that in
all his conversations with the automobile dealers during this period he consistently
maintained that article 25 was a valid provision of their agreement which was binding
on the employers.
George Liesmann, general manager of Clayton Motors, testified to a conversation
with Gibbs on June 3, wherein the latter told him that Clayton Motors was in viola-
tion of article 25 because it was continuing to do business with Seat Cover Mart.
Gibbs asked that Liesmann send his orders to another upholstery shop such as Fit-
well. Liesmann testified that as a result of this conversation he sent one order to the
Fitwell Company which otherwise would have gone to Seat Cover Marta Gibbs
corroborated the foregoing testimony of Liesmann. In addition , he testified that
during the course of this same conversation he told Liesmann, in substance, that under
the terms of their contract the employer should give preference to a union shop.
According to Gibbs, he likewise named Fitwell and several other union shops with
which he suggested that Liesmann do business rather than with Seat Cover Mart.
Subsequent to the above conversation with * Liesmann, Gibbs contacted Edgar
Hayward, executive vice president of the Car Dealers. Gibbs testified that he asked
Hayward whether the latter considered it a violation of article 25 for Clayton
Motors to send work out to an upholstery shop with which Local 618 had a dispute,
and that Hayward answered in the affirmative. Gibbs further testified that shortly
after the above conversation he telephoned Hayward to ask him the same question
with respect to Forest Cadillac and received a response identical with that given
earlier.3
After the charges in the instant case were filed with the Board, John Harris, an
attorney for the General Counsel, requested the Car Dealers to state, in writing,
that the Association would refrain from seeking to enforce article 25. Ben Linden-
busch, president of the Car Dealers, testified that no response was ever made to
this request. He stated that the matter was discussed with several union officials,
namely Carl Gibbs, Katherine Sullivan, and a Mr. Dorsey, as well as with the
board of directors for the Car Dealers. According to Lindenbusch, when he
informed the foregoing representatives of Local 618 that he proposed to notify the
membership of the Car Dealers that the board of directors considered article 25
illegal, the union officials told him that Local 618 was very much opposed to any
such action on the part of the employer group. Lindenbusch testified that the Board
of directors subsequently decided to await the outcome 'of the litigation arising out
2 At the time of the hearing , however , Clayton Motors had resumed doing business with
Seat Cover Mart.
3 Hayward had participated'in the'bargaining sessions which resulted in the agreement.
Gibbs testified that he frequently conferred with Hayward as to the Car, Dealers' inter-
pretation of the provisions in the contract and estimated that since the agreement went
into effect he had had such discussions with Hayward on approximately 25 occasions.
AUTOMOTIVE, Pb'TROLEUM, ETC., LOCAL 618 1369
of the unfair labor practice charge in the present case before sending any such
notice to its members. As a result, according to Lindenbusch, the Car Dealers
Association has never affirmatively disavowed the legality of article 25.
B. Contentions of the parties; conclusions with respect thereto
The General Counsel contends that article 25 of the contract in question violated
Section 8 (c) of the Act 4 by- requiring the Car Dealers to cease or refrain from doing
business with another employer. This is denied by the Respondent. The latter
contends that article 25 does not come within the class of "hot-cargo" contracts
which Section 8(e) was designed to proscribe. According to the Union, by the
contractual clause in question the employer merely agrees that he will give a
preference to shops having contracts with the Respondent and that this is no
more illegal than a contract whereby an employer agrees that he will buy only equip-
ment made in America. -
As set forth earlier herein, article 25 provides:
Whenever the Employer finds it feasible io send work out that would ordinarily
be performed by his employees, preference will be given to such shops or sub-
contractors having contracts with the Union.
From the foregoing language it appears that in the event an employer decides to
send out work at a time when both union and nonunion shops are 'available he
must do business with the union shop which has a contract with Local 618, and
is left no latitude to do otherwise. This was the.construction which Gibbs placed
on article 25 when he contacted the representatives of Forest Cadillac and Clayton
Motors in June '1960: In both instances, Gibbs told the officials of those companies
that the Union considered it a violation of article 25 for them to continue business
relations with Seat Cover Mart at a time when Local 618 had a dispute with the
latter concern. Thereafter, and as a result of Gibbs" demands, Clayton Motors sent
an order to the Fitwell_ Company, one of the union shop firms which Gibbs recom-
mended. Whether the obligation of the employer is stated as a "preference" or a
"requirement" the clause in question allows the employer no discretion, once he
decides to contract out work and the services of a union shop can be secured.
Plainly, article 25 imposes a limitation on the right of the car dealer to subcontract
work to nonunion upholstery shops, for by its terms the employer agrees that
where union' shops are available he will do business only with them. Under these
circumstances, it is my conclusion that article 25 constitutes a "hot-cargo" clause
within the prohibition of Section 8(e) of the Act. Pilgrim Furniture Company, Inc.,
128 NLRB 910, Marie I. Reilly, d/bla Reilly Cartage Co., 1,10 NLRB 1742, 1746.
Finally, the Respondent contends that since the contracts in question were signed
August 1959,- and the charge in the, instant case was not filed until June 20, 1960,
the complaint must be dismissed because the General Counsel failed to prove the
entering into of an agreement violative of Section 8(e) within 6 months prior to
the filing of the charge. Local Lodge 1424, International Association of Machinists,
AFL-CIO, et al. v. N.L R.B., 362 U.S. 411. In the latter case, the Supreme Court
stated (idem., at 416-417) :
It is doubtless true that § 10(b) does not prevent all use of evidence relating
to events transpiring more than six months before the filing and service of an
unfair labor practice charge. However, in applying rules of evidence as
to the admissibility of past events, due regard for the purposes of § 10(b)
requires that two different kinds of situations be distinguished. The first is one
where occurrences within the six-month limitations period in and of them-
selves may constitute, as a substantive matter, unfair labor practices. There,
earlier events may be utilized to shed light on the true character of matters
occurring within the limitations period; and for that purpose § 10(b) ordinarily
does not bar such evidentiary use of anterior events. The, second situation is
that where conduct occurring within the limitations period can be charged to
be an unfair labor practice only through reliance on an earlier unfair labor
Section 8(e) provides, in relevant part, as follows:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling , using, selling , trans-
porting or otherwise dealing in any of the products of any other employer, or to cease
doing business with any other person, and any contract or'agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforcible and void . . . . -
1370 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
practice. There the use of an earlier unfair labor practice is not merely "evi-
dentiary," since it does not simply lay bare a putative current unfair labor prac-
tice. Rather, it serves to cloak with illegality that which was otherwise lawful.
And where a complaint based upon that earlier event is time-barred, to permit
the event itself to be so used in effect results in reviving a legally defunct unfair
labor practice.
The complaint does not allege that the agreement entered into on August 15, 1959,
violated the Act, per se, but it does allege that subsequent to November 14, 1959,5
the Respondent and the members of the Car Dealers Association reaffirmed and
gave effect to article 25. In his brief, the General Counsel contends that since these
acts of reaffirmation occurred within 6 months prior to the filing of the charge on
June 20, 1960, the present case is in the first category described by the Supreme
Court in the foregoing passage from the opinion in Local Lodge 1424.
The Respondent would have us view in isolation the language of article 25 as it
appears in the contract of August 15, 1959. Nothing in this record warrants such a
position. Article 25 is but 1 of 32 provisions in the collective-bargaining agree-
ment executed on that date, which by its terms was to remain continuously in effect
until August 15, 1964. There is no evidence whatsoever that this contract was ever
repudiated, in whole or in part, by the Respondent or by any member of the Car
Dealers Association. On the contrary, the record clearly demonstrates that, insofar
as the Respondent and the automobile dealers are concerned it remains their opera-
tive agreement. Business Agent Gibbs testified that in the months prior ,to the hear-
ing he frequently discussed with Hayward questions as to how this contract should be
construed, and estimated that he had done so on approximately 25 occasions. It is
likewise undenied that after the Respondent became involved in the dispute with
the upholstery shops which precipitated this case, Gibbs called upon several of the
automobile dealers to assert that they were violating article 25 by continuing to do
business with those shops where Local 618 had gone on strike. By this action, the
Respondent Union plainly reaffirmed the current effectiveness of article 25. Simi-
larly, the automobile dealers, on their part, acquiesced in this action. Thus, on
June 3, 1960, when Business Agent Gibbs called upon Clayton Motors to comply
with article 25 and to cease doing business with Seat Cover Mart, that dealer agreed
to entertain bids from Fitwell, an upholstery shop with which Local 618 had a
contract. It is significant that when Gibbs contacted the dealers referred to in this
case none of them took the position that article 25 was no longer valid or binding.
All of the evidence in this record establishes that in their discussions with the busi-
ness agent for the Respondent, the automobile dealers advised the Union that they
were endeavoring to, comply fully with article 25. Moreover, during this same
period, Hayward, as the representative of the Car Dealers, concurred with Gibbs
that Clayton Motors and Forest Cadillac were violating article 25 by continuing
to do business with Seat Cover Mart. Likewise, during this period and after a dis-
cussion with the Respondent's representatives and officials of the Car Dealers As-
sociation, the latter organization refused to notify its members that it considered
article 25 illegal and no longer in effect. Accordingly, I conclude and find that,
during the period in question, by the action and conduct set forth above, the Re-
spondent reaffirmed and reinvoked article 25, and that the automobile dealers, on
their part, concurred in this reaffirmation. To hold otherwise would be unrealistic
in the extreme and contrary to the undenied and uncontradicted evidence in this
record. Furthermore, and in view of the fact that the issue here is only whether
occurrences within the 6-month period prior to the filing of the charge constitute
unfair labor practices, evidence as to the contract executed by the Union and the
automobile dealers on August 15, 1959, "may be utilized to shed light on the true
character of matter occurring within the limitations period. Local Lodge
1424 International Association of Machinists AFL-CIO, et al. v. N.L.R.B., 362
U.S. 411, 416.
Section 8(e) of the Act makes it unlawful for an employer and a labor organiza-
tion "to enter into any contract or agreement, express or implied, whereby such em-
ployer ceases or refrains or agrees to cease or refrain from . . . doing business with
any other person.. ." Earlier herein I have found that article 25 comes within the
proscription of Section 8(e). Moreover, it should also be noted that Section 8(e)
further provides that "any contract or agreement entered into heretofore [i.e., prior
to the enactment of Section 8(e)] . . . containing [a hot-cargo clause] shall be to
such extent unenforcible and void. . . ." Since this language invalidated article 25
of the August 15, 1959, agreement any steps such as those taken by the Respondent
and the Car Dealers here to act in accordance with the terms of article 25 may
5 Section 8 (e) became effective on November 13, 1959.
WEYERHAEUSER COMPANY 1371
properly be viewed as the entering into of another agreement with terms similar
to article 25 and similarly unlawful . On this record it is my conclusion that the
Union and the automobile dealers "entered into" an agreement within the meaning
of Section 8(e) by their action in June 1960 wherein they acknowledged and main-
tained the current effectiveness and application of article 25 and , more particularly,
by the conduct of Local 618 in urging that , pursuant to the aforesaid provision in
the collective-bargaining agreement, Clayton Motors and Forest Cadillac cease doing
business with Seat Cover Mart . In so doing , the Respondent Union violated Sec-
tion 8 (e),as alleged in the complaint.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Local 618 is a labor organization within the meaning of the Act.
2. Greater St. Louis Automotive Trimmers and Upholsterers Association, Inc.,
and its members , are engaged in commerce within the meaning of the Act.
3. The Respondent Union violated Section 8 (e) of the Act by entering into and
maintaining contracts with the members of the Greater St. Louis Automotive Associ-
ation , Inc., whereby those employers agreed that when they found it feasible to send
out work that would ordinarily be performed by their own employees , preference
would be given to shops or subcontractors having contracts with the Union.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2( 6) and (7) of the Act.
[Recommendations omitted from publication.]
Weyerhaeuser Company and Amalgamated Lithographers of
America , Local #4. Case No. 13-CA-3750. December 19, 1961
DECISION AND ORDER
On October 25,1960, Trial Examiner Charles W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in certain alleged unfair labor prac-
tices and recommending that the complaint herein be dismissed, as
set forth in the Intermediate Report attached heireto. Thereafter, the
General Counsel and the Charging Party, Amalgamated Lithogra-
phers of America, Local #4, filed exceptions to the Intermediate Re-
port and briefs in support thereof. The Respondent filed a brief in
support of the Intermediate Report but excepted to rulings of the Trial
Examiner excluding certain evidence proffered by the Respondent.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in this
case, and for the reasons discussed below finds merit in the General
Counsel's and Charging Party's exceptions to the Intermediate Re-
port. Accordingly, the Board adopts only those findings, conclusions,
and recommendations of the Trial Examiner which are consistent
with the decision herein.
134 NLRB No. 150.