General Teamsters', Etc., Local No. 890

National Labor Relations Board - Board Decisions

Jun 15, 1962

137 N.L.R.B. 641 (N.L.R.B. 1962)

GENERAL TEAMSTERS ', ETC., LOCAL NO. 890 641
General Teamsters ', Warehousemen and Helpers ' Union, Local
No. 890 and San Joaquin Valley Shippers ' Labor Committee;
Imperial Valley Shippers ' Labor Committee ; Blythe Shippers'
Labor Committee ; and Yuma Valley Shippers ' Labor Com-
mittee and David Castro and Andrew Torigian . Case No. 20-
CE-6. June 15, 1962
DECISION AND ORDER
Upon charges duly filed by David Castro and Andrew Torigian,
individuals, the General Counsel of the National Labor Relations
Board,by the Regional Director for the Twentieth Region, on Novem-
ber 13, 1961, issued an amended complaint alleging that General
Teamsters', Warehousemen and Helpers' Union, Local No. 890 (herein
called Respondent Union) and San Joaquin Valley Shippers' Labor
Committee, Imperial Valley Shippers' Labor Committee, Blythe
Shippers' Labor Committee, and Yuma Valley Shippers' Labor Com-
mittee (herein called Respondent Shippers' Committees) had engaged
in and were engaging in unfair labor practices within the meaning of
Section 8(e) and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, amended complaint, and
notice of hearing were duly served upon the Respondents and copies
of the amended complaint and notice of hearing were duly served upon
the Charging Parties.
With respect to the unfair labor practices, the complaint alleges, in
substance, that the Respondent Union and certain employer-members
of the Respondent Shippers' Committees have entered into, and main-
tained in effect, certain contract clauses, pursuant to which these mem-
bers of the Respondent Shippers' Committees have agreed to cease
and refrain, and have ceased and refrained, from using or otherwise
dealing in the services of Castro, Torigian, and other independent
truck operators in violation of Section 8(e).
On January 5, 1962, all parties to this proceeding entered into a
stipulation of facts, and on the same date jointly agreed to transfer
this proceeding directly to the Board for findings of fact, conclusions
of law, and Decision and Order. The stipulation states that the parties
have waived their rights to a hearing before a Trial Examiner and
to the issuance of an Intermediate Report and Recommended Order,
and provides that the charges, complaint, amended complaint, an-
swers, amended answers, and stipulation of facts constitute the entire
record in the case. On January 12,1962, the Board approved the stipu-
lation, ordered the transfer of the proceeding to the Board, and
granted permission to the parties to file briefs. Thereafter, the Gen-
eral Counsel, the Respondent Shippers' Committees, and the Respond-
ent Union filed briefs.
137 NLRB No. 75.
649856-63-vol. 137-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the stipulation and briefs, and upon the entire
record in the case, the Board makes the following :
FINDINGS OF FACT
I. COMMERCE
The parties have stipulated that the Respondent Shippers' Com-
mittees are agents for approximately 48 employers and are duly
authorized on their behalf to negotiate and enter into the labor agree-
ments with the collective bargaining representatives of their em-
ployees. Said employers, among them Pappas and Company, Inc.;
High and Mighty Farms, Inc.; S. Stamoules, Inc.; Farley Fruit Com-
pany; Westside Growers and Shippers, Inc.; Suzy-Belle Farms; and
Arkalian Farms, are engaged in San Joaquin Valley, Blythe County,
and Imperial County, California, and in Yuma County, Arizona, as
growers, packers, and shippers of agricultural products. Each of
the growers, packers, and shippers so represented by these Respond-
ent Shippers' Committees annually sells and ships products valued
at more than $50,000 from its packing plant to points outside the State
in which each of said plants is located. Accordingly, we find that
San Joaquin Valley Shippers' Labor Committee, Imperial Valley
Shippers' Labor Committee, Blythe Shippers' Labor Committee, and
Yuma Valley Shippers' Labor Committee are engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters', Warehousemen and Helpers' Union, Local No.
890, is a labor organization as defined in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The facts, as stipulated, show that the Charging Parties, David
Castro and Andrew Torigian, are independent contractors, separately
engaged in hauling agricultural produce on a contract basis, and that
each individually owns and operates trucks and also hires other indi-
viduals as drivers. During the period of time material herein, the
Charging Parties have had hauling contracts with Pappas and Com-
pany, Inc. ; High and Mighty Farms, Inc. ; S. Stamoules, Inc. ; Farley
Fruit Company; Westside Growers and Shippers, Inc.; Suzy-Belle
Farms; Arkalian Farms; and other grower-shippers, all of whom are
represented for collective bargaining by Respondent Shippers'
Committees.
On or about August 1, 1960, Respondent Union entered into a con-
tract entitled "1960-61 Truck Drivers Agreement" with Respondent
Shippers' Committee acting for and on behalf of some 48 grower-
shippers, including the aforenamed grower-shippers. This contract
GENERAL TEAMSTERS', ETC., LOCAL NO. 890 643
was effective August 1, 1960, for a term expiring July 15, 1962, and
provided in relevant part that: '
4 (a) If the Company contracts any hauling of produce between
the field and the packing house or the field and the vacuum cooler,
employees of such contractors shall be covered under the terms
of this contract.
(b) If the contractor does not comply with the terms of this
agreement, the Union will notify the Company in writing of any
provisions of the agreement violated. If contractor shall not
come into compliance within 48 hours, the Company shall ter-
minate the contract with contractor.
In addition, Respondent Union and Respondent Shippers' Com-
mittees, on or about July 12, 1960, entered into a "Supplementary
Agreement" effective only for the San Joaquin Valley operations of
any shipper party to the main agreement. This "Supplementary
Agreement," to remain in force as long as the main agreement is
operative, provided in pertinent part that : 2
(1) All independent truckdrivers hauling melons between the
field and the packinghouse shall be in good standing with the
Union. Shippers will, upon written request by the Union, ter-
minate within 48 hours thereafter the contract of any independent
trucker who ceases to be in good standing with the Union.
The General Counsel and the Respondents agree that section 4(b)
and the second sentence of section (1),3 supra, are within the proscrip-
tion of Section 8(e) of the Act and that the Board may enter an ap-
propriate order to remedy these specific clauses. We agree that these
provisions are express "hot cargo" agreements that the employer sig-
natories will cease doing business with other persons and are unlawful
under Section 8(e) of the Act.
The General Counsel contends, and the Respondent Union denies,
that section 4(a) and the first sentence of section (1) also constitute
agreements whereby an employer agrees to cease doing business with
another person within the meaning of Section 8 (e) of the Act. In
section 4(a) the employers have bound themselves to do business only
with those contractors who agree that their employees shall be covered
by the terms of the contract, and by section (1) the employers agree
to hire only those independent truckdrivers who are members in good
standing with the Respondent Union. As an agreement to do business
only with those who meet either union membership or contract cover-
1 These relevant provisions are hereinafter referred to as section 4(a) and (b).
2 This provision is hereinafter referred to as section (1).
3Although it originally denied the illegality of the entire section ( 1), in its brief
Respondent Union conceded that the second sentence thereof is also proscribed by Sec-
tion 8(e) of the Act.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age requirements, these clauses are an agreement, at least by implica-
tion, not to do business with those who do not so qualify.' Accord-
ingly, we find that section 4(a) and the first sentence of section (1)
fall squarely within the proscription of Section 8(e) of the Act.'
The parties stipulated that at all times material herein the Respond-
ent Union and the above-named members of the Respondent Shippers'
Committees have maintained the contract and supplement in effect,
specifically including the provisions herein found to be unlawful
under Section 8 (e). They further stipulated that from time to time
during the relevant period the Respondent Union has taken steps to
enforce those provisions. We construe this as a stipulation that the
said parties to the contract have, in fact, enforced and given effect to
these unlawful clauses, the Respondent Union by requesting adherence
thereto and the employers by acquiescing in and complying with such
demands.' For the reasons set forth in our decision in the McKinney
case,' we are persuaded that any enforecment of or compliance with
such invalid clauses constitutes an unfair labor practice proscribed by
Section 8(e) of the Act. As the Respondents herein have enforced or
given effect to sections 4 (a) and (b) of their contract and section (1)
of the supplement, we find they have thereby "entered into" an il-
legal agreement in violation of Section 8 (e) of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above,
occurring in connection with the operations as described in section I,
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain unfair
labor practices , we shall order that they cease and desist therefrom and
that they take certain affirmative action designed to effectuate the
policies of the Act.
* D&n McKinney Co, 137 NLRB 649
' Ibid.
In this connection , we note that a bulletin dated August 4, 1961, sent by an employer
association to "those shippers who are parties to the 1960-1961 Truck Drivers contract,"
which was incorporated into the stipulation as an exhibit , reveals that the shippers had
been adhering to those provisions at least until that date.
"Dan McKinney Co., 137 NLRB 649.
8 we have held on similar facts that parties violate Section 8 (e) of the Act by acknowl-
edging and reaffirming the current effectiveness and application of a "hot cargo" con-
tract. Automotive, Petroleum & Allied Industries Employees Union, Local 618, affiliated
with International Brotherhood of Teamsters , etc. (Greater St Louis Automotive
Trimmers and Upholsterers Association , Inc), 134 NLRB 1363; Los Angeles Mailers
Union No. 9, I.T. U (Hillbro Newspaper Company, Division of Hearst Publishing Com-
pany, Inc), 135 NLRB 1132.
GENERAL TEAMSTERS', ETC., LOCAL NO. 890 645
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAw
1. General Teamsters', Warehousemen and Helpers' Union, Local
No. 890, is a labor organization within the meaning of Section 2(5)
of the Act.
2. San Joaquin Valley Shippers' Labor Committee, Imperial Valley
Shippers' Labor Committee, Blythe Shippers' Labor Committee, and
Yuma Valley Shippers' Labor Committee, and their members, are
engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
3. By enforcing and maintaining in effect a contract between Re-
spondent Union and Respondent Shippers' Committees whereby
employer-members of these committees were obligated to cease and
refrain, and did cease and refrain, from using or otherwise dealing in
the services of David Castro, Andrew Torigian, and other independ-
ent truck operators who are not parties to the agreements referred to
above, or whose employees are not covered thereby, or who do not
comply with the terms thereof, or who are not in good standing with
Respondent Union, the Respondents named herein violated Section
8 (e) of the Act.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
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 Respondents, General Team-
sters', Warehousemen and Helpers' Union, Local No. 890, San Joaquin
Valley Shippers' Labor Committee, Imperial Valley Shippers' Labor
Committee, Blythe Shippers' Labor Committee, and Yuma Valley
Shippers' Labor Committee, and their officers, agents, representatives,
successors, and assigns, shall :
1. Cease and desist from :
(a) Enforcing, maintaining in effect, and giving effect to the con-
tracts entered into by these parties on or about August 1, 1960, and on
or about July 12, 1960, insofar as said contracts provide that :
If the Company contracts any hauling of produce between the
field and the packinghouse or the field and the vacuum cooler, em-
ployees of such contractors shall be covered under the terms of
this contract.
If the contractor does not comply with the terms of this agree-
ment, the Union will notify the Company in writing of any pro-
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visions of the agreement violated. If contractor shall not come
into compliance within 48 hours, the Company shall terminate
the contract with contractor.
All independent truckdrivers hauling melons between the field
and the packinghouse shall be in good standing with the Union.
Shippers will, upon written request by the Union, terminate within
48 hours thereafter the contract of any independent trucker who
ceases to be in good standing with the Union.
(b) Entering into, actively maintaining, giving effect to, or en-
forcing any other contract or agreement, express or implied, whereby
Respondent Shippers' Committees or any of their employer-members
cease or refrain, or agree to cease or refrain, from doing business with
David Castro, Andrew Torigian, or any other indepedent truck op-
erator.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Respondent Shippers' Committees shall :
(1) Notify in writing their respective employer-members that those
contracts between General Teamsters', Warehousemen and Helpers'
Union, Local No. 890 and Respondent Committees entered into on or
about August 1, 1960, and on or about July 12, 1960, are no longer
in effect insofar as they require that said employer-members cease or
refrain, or agree to cease or refrain, from doing business with any
independent truck operator.
(2) Post in conspicuous places at their offices where notices to em-
ployees are customarily posted, copies of the notice attached hereto
marked "Appendix A." 9
(3) Furnish to the Regional Director for the Twentieth Region
signed copies of the aforementioned notice for posting by their em-
ployer-members, if such employer-members 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 Re-
spondents, as indicated, be forthwith returned to the Regional Direc-
tor for disposition by him.
(b) Respondent General Teamsters', Warehousemen and Helpers'
Union, Local No. 890, shall :
(1) Post at its offices, places of business, and meeting places in the
States of California and Arizona, copies of the notice attached hereto
marked "Appendix B.710 Copies of said notice, to be furnished by the
Regional Director of the Twentieth Region, shall, after having been
duly signed by Respondent Union's authorized representatives, be
9In 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."
10 See footnote 9, supra.
GENERAL TEAMSTERS', ETC., LOCAL NO. 890 647
posted immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where Respondent Union's notices to members are
customarily posted. Reasonable steps shall be taken by Respondent
Union to insure that said notices are not altered, defaced, or covered
by other material.
(2) Furnish to the Regional Director of the Twentieth Region
signed copies of the aforementioned notice for posting by the em-
ployer-members of the Respondent Shippers' Committees, if such em-
ployee-members agree, in places where notices to employees are cus-
tomarily posted. Copies of said notice, to be furnished by the Regional
Director, shall, after being signed by Respondents, as indicated, be
forthwith returned to the Regional Director for disposition by him.
(c) Respondents shall notify the Regional Director for the Twen-
tieth Region, in writing, within 10 days from the date of this Order,
what steps they have taken to comply herewith.
MEMBERS FANNING and BROWN took no part in the consideration of
the above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT enter into, actively maintain, give effect to, or en-
force any contract or agreement, express or implied, with General
Teamsters', Warehousemen and Helpers' Union, Local No. 890,
whereby we cease or refrain, or agree to cease or refrain, from
using the services of any other employer, or from doing business
with any other person.
WE WILL NOT enforce or maintain in effect our contracts entered
into with General Teamsters', Warehousemen and Helpers'
Union, Local No. 890, on or about August 1, 1960, or on or about
July 12, 1960, insofar as said contracts provide that :
If the Company contracts any hauling of produce between
the field and the packinghouse or the field and the vacuum
cooler, employees of such contractors shall be covered under
the terms of this contract.
If the contractor does not comply with the terms of this
agreement, the Union will notify the Company in writing of
any provisions of the agreement violated. If contractor shall
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not come into compliance within 48 hours, the Company shall
terminate the contract with contractor.
All independent truckdrivers hauling melons between the
field and the packinghouse shall be in good standing with the
Union. Shippers will, upon written request by the Union,
terminate within 48 hours thereafter the contract of any in-
dependent trucker who ceases to be in good standing with the
Union.
SAN JOAQUIN VALLEY SHIPPERS' LL.3oR COMMITTEE;
IMPERIAL VALLEY SHIPPERS' LABOR COMMITTEE;
BLYTHE SHIPPERS' LABOR COMMITTEE; YUMA VAL-
LEY SHIPPERS' LABOR COMMITTEE,
Employers.
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.
Employees may communicate directly with the Board's Regional
Office, 703 Market Building, 830 Market Street, San Francisco 2,
California, Telephone Number, Yukon 6-3500, Extension 3191, if they
have any question concerning this notice or compliance with its pro-
visions.
APPENDIX B
NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF EMPLOYER-
MEMBERS OF SAN JOAQUIN VALLEY SHIPPERS' LABOR COMMITTEE,
IMPERIAL VALLEY SHIPPERS' LABOR COMMITTEE, BLYTHE SHIPPERS'
LABOR COMMITTEE, AND YUMA VALLEY SHIPPERS ' LABOR COMMITTEE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT enter into, actively maintain, give effect to, or
enforce any contract or agreement, express or implied, with San
Joaquin Valley Shippers' Labor Committee, Imperial Valley
Shippers' Labor Committee, Blythe Shippers' Labor Committee,
or Yuma Valley Shippers' Labor Committee, or any employer-
member of any of these organizations whereby such Shippers'
Committee, or any employer-member thereof, ceases or refrains,
or agrees to cease or refrain, from using the services of any other
employer, or from doing business with any other person.
WE WILL NOT enforce or maintain in effect the contracts entered
into by the aforenained Shippers' Committees or their employer-
members and the undersigned Union on or about August 1, 1960,
DAN McKINNEY CO. 649
or on or about July 12, 1960, insofar as said contracts provide
that :
If the Company contracts any hauling of produce between
the field and the packinghouse or the field and the vacuum
cooler, employees of such contractors shall be covered under
the terms of this contract.
If the contractor does not comply with the terms of this
agreement, the Union will notify the Company in writing of
any provisions of the ageement violated. If contractor shall
not come into compliance within 48 hours, the Company shall
terminate the contract with contractor.
All independent truckdrivers hauling melons between the
field and the packinghouse shall be in good standing with the
Union. Shippers will, upon written request by the Union,
terminate within 48 hours thereafter the contract of any in-
dependent trucker who ceases to be in good standing with
the Union.
GENERAL TEAMSTERS ', WAREHOUSEMEN
AND HELPERS ' UNION, LOCAL No. 890,
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.
Employees may communicate directly with the Board's Regional
Office, 703 Market Building, 830 Market Street, San Francisco 2,
California, Telephone Number, Yukon 6-3500, Extension 3191, if
they have any question concerning this notice or compliance with its
provision.
Dan McKinney Co. and Leo S. Angel and California Beer Whole-
salers' Association , Inc.; California Brewers Association;
Teamster Brewery and Soft Drink Workers Joint Board of
California ; and Beer Drivers Local Union 683, Parties to the
Contract. Case No. 21-CE-18. June 15, 1962
DECISION AND ORDER
On September 27, 1961, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
Dan McKinney Co., the Respondent herein, had not engaged in unfair
labor practices in violation of Section 8(e) of the Act and recom-
mending that the complaint be dismissed, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel, California
137 NLRB No. 74.