General Teamsters Local No. 324

National Labor Relations Board - Board Decisions

Nov 7, 1958

122 N.L.R.B. 25 (N.L.R.B. 1958)

GENERAL TEAMSTERS LOCAL NO. 324 25
sion of unfair labor practices in the future is to be anticipated from its conduct in
the past. The preventive purposes of the Act will be thwarted unless the order is
coextensive with the threat. In order, therefore, to make more effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and obstructs commerce,
and thus effectuate the policies of the Act, I shall recommend that the Respondent
be ordered to cease and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Wall Tube & Metal Products Co. is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers International Association, AFL-CIO, is a labor organi-
zation within the meaning of the Act.
3. By dominating and interfering with the formation and administration of
the Understanding Committee and by contributing financial and other support
to it , Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (2) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
General Teamsters Local No. 324, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America and Truck Operators League of Oregon . Case No.
36-CC-51. November 7, 1958
DECISION AND ORDER
On February 8, 1958, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent has not violated the Act and recommending that the
complaint be dismissed, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel, the
Charging Party, and the Respondent, filed exceptions to the Interme-
diate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case,' and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the following additions and
modifications.
'The Respondent's request for oral argument is denied as the record, exceptions, and
briefs adequately present the issues and the positions of ,the parties.
122 NLRB No. 7.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The essential facts in this case, which are not in dispute, may be
summarized as follows : In furtherance of a primary labor dispute
with McDonald, Murray, and Coast, beer distributors, the Union on
August 27, 1957, engaged in a strike against these companies, and
apparently succeeded in preventing them from continuing directly
their business of beer distribution in and about Salem, Oregon.
However, on or about September 11, 1957, when the strike was still
in progress,' these companies obtained the services of, inter alia,
Pierce, Sites, Pacific, and Wright, common carrier truckers, to under-
take the delivery of beer in the Salem area which the beer distributors
themselves normally performed. Pursuant to this arrangement, the
beer to be delivered on behalf of the distributors was transported from
the breweries directly to the Salem warehouses of the truckers, where
it was packaged or labeled for delivery, and the truckers then under-
took that delivery. When they did so their trucks were followed by
union men, and when the trucks stopped to make deliveries to cus-
tomers of the beer distributors the union men got out of their cars
and engaged in picketing of the trucks, carrying picket signs which
stated that the particular beer distributor involved was being struck
by the Union and was a "strikebreaker." On occasion the pickets
also verbally called the attention of some drivers of the trucks to the
existence of the picket line, and in effect admonished them not to cross
the picket line to make the beer deliveries. There is no evidence that
the pickets ever went onto the property of the customers to whom
delivery was attempted or that there was any contact between the
pickets and the employees of these customers, and there is no evidence
of any contact between the pickets and the employees of any other
employers. In fact, there is no evidence that the pickets ever came
within sight of any employees of secondary employers. Also, the
record shows affirmatively that the pickets never attempted to picket
any deliveries of the truckers other than the attempted deliveries of
the beer of the primary employers, and that the Union refrained from
picketing the Salem warehouses of the truckers from which deliveries
were made of various products other than the struck beer. It was
only after a truck undertaking deliveries normally made by the struck
companies left the trucker's warehouse that a picket was put on it. As
a result of the picketing that was so confined to the truckers' attempted
deliveries of beer on behalf of the primary employer beer distributors,
it appears that such attempted deliveries were effectively blocked.
On the basis of these facts, we find, as the Trial Examiner did, that
the truckers were undertaking to perform services which constituted
the normal business of the beer distributors, and which the latter would
have performed except that they had been forced to discontinue such
services as a result of their primary dispute with the Union; and ac-
0 The strike was settled on September 24, 1957.
GENERAL TEAMSTERS LOCAL NO. 324 27
cordillgly that the truckers were "allies" of the primary employers as
that term has been defined, to whom the protection of Section
8 (b) (4) (A) does not apply.' In excepting to this finding, the Gen-
eral Counsel and the Charging Party contend only that this is not an
"ally" situation because of the truckers' obligation as common carriers
not to refuse to make the deliveries involved under the Interstate Com-
merce Act, and/or the Motor Transportation Code of the State of
Oregon, and/or the common law 4 We disagree with this contention.
As indicated by the Trial Examiner, an "ally" stands in the shoes of
the primary employer, and to the extent that he acts as an "ally" he
must therefore be regarded as the primary employer.' For that rea-
son, the right to strike or picket a primary employer necessarily in-
cludes the right to strike or picket his "ally." 6 Accordingly, as the
right to strike or picket a primary employer who happens to be a
common carrier may not be disputed,' the concomitant right to strike
or picket the primary employer's "ally" who happens to be a common
carrier also may not be disputed. We find, therefore, that the Union's
picketing of the "ally" truckers here to the extent that they were act-
ing as "allies" was afforded the same protection by the Act as if such
picketing had been conducted against the primary employers them-
selves; and that so long as Congress chooses to make common carriers
subject to the complete coverage of the Act this Board, charged solely
as it is with the administration of this Act, may not deny this protec-
tion to the Union, without regard to whether the "ally" truckers were
under a possible obligation under other laws not to refuse to make the
picketed deliveries."
3 See Douds v. Metropolitan Federation of Architects , etc. (Project Engineering Com-
pany ), 75 F. Supp . 672 (D .C., N.Y.) ; N.L.R.B. v. Business Machine and Office Appliances
Mechanics Conference Board, etc . ( Royal Typewriter Company ), 228 F. 2d 553 (C.A. 2),
cert . denied 351 U.S. 962.
4 Indeed , at the hearing the General Counsel and the Charging Party conceded in effect
that this was otherwise an "ally " situation.
° See International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, et at. (Adolph Coors Company), 121 NLRB 271. As
similarly phrased by Senator Taft in debate on the amendments to the Act , what has
come to be known as an "ally" is one who ". . . is, in effect . . . acting as a part of
the primary employer. . . . 11 95 Cong. Rec. 8709.
° See Shopmen's Local Union No. 501, etc . ( Oliver Whyte Company, Inc.), 120 NLRB
856. See also Douds v. Metropolitan Federation of Architects , etc., supra , where the
court stated similarly : "The conduct of the union in inducing [ the "ally's"] employees to
strike is not different in kind from its conduct in inducing [ the primary employer's]
employees to strike . If the latter is not amenable to . . . restraint , neither is the
former."
7 As explicated by the Trial Examiner , not only is there nothing in the Act which
exempts common carriers from its coverage , but Congress explicitly refused to make such
an exemption . Moreover , the Board has always upheld the right to strike against pri-
mary employers who happen to be common carriers . See e . g., International Brotherhood
of Teamsters , etc. (Henry V. Rabouin doing business as Conway's Express ), 87 NLRB
972, 976, 977.
3 See Local 1976 , United Brotherhood of Carpenters and Joiners of America, AFL,
et at. v. N . L.R.B. (Sand Door & Plywood Co .), 357 U.S. 93.
Accordingly, we find it unnecessary and improper to consider , as the Trial Examiner
did, whether such an obligation under other laws was actually present here in the light of
the alleged "split delivery " and "impracticable operation " character of the deliveries in-
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel also contends that the ambulatory picketing
here was of the type proscribed under the Washington Coca-Cola
doctrine.' This doctrine, as recently restated, is that picketing at the
premises of a secondary employer is per se for an unlawful object
where a primary employer has a permanent place of business at which
a union can adequately publicize its labor dispute.1° As an "ally"
stands in the shoes of the primary employer, we hold that the Wash-
ington Coca-Cola doctrine applies to an "ally" situation.ll However,
in the instant case, the General Counsel failed to adduce evidence to
show that there was inducement and encouragement of employees of
secondary employers. There is no evidence in the record of any con-
tact between the pickets and any employees of secondary employers,
or that the pickets ever even came within sight of such employees.
Accordingly, as the "inducement" requirement of Section 8 (b) (4) (A)
was not satisfied by the proof in this case, we find that there was no
violation of Section 8 (b) (4) (A), despite the fact that the "allies" here
had "permanent place of business" warehouses which the Union might
have picketed. Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBERS BEAN and JENKINS took no part in the consideration of the
above Decision and Order.
volved . Therefore , we must also reject the contention that because of this alleged obliga-
tion , and the alleged resulting involuntary performance of the struck work , the truckers
cannot be considered "allies."
Washington Coca Cola Bottling Works , Inc., 1 . 07 NLRB 299 , enfd. 220 F. 2d 380
(C.A., D.C.).
10 Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 386, et at. (Cali-
fornia Association of Employers ), 120 NLRB 1161 . Member Fanning in that case ex-
pressed disagreement with the "per se" doctrine , but finds it unnecessary to consider that
Issue in the instant case in view of the result reached herein.
11 See Shopmen's Local Union No. 501, etc . ( Oliver Whyte Company, Inc.), supra, and
General Metals Corporation , 120 NLRB 1227 , which stand for the proposition that the
permanent premises of an ally may be picketed , even though work other than work on
"struck goods" is performed at such premises.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard by the duly designated
Trial Examiner at Portland, Oregon, on December 4, 5, 1957, 1 on complaint of
the General Counsel of the National Labor Relations Board , the latter , hereinafter
called the Board , issued pursuant to charges filed by Truck Operators League of
Oregon , and answer of General Teamsters Local No . 324, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of America, hereinafter called
Respondent or the Union. The complaint alleged in substance , and Respondent's
answer denied , that Respondent engaged in secondary boycott activities that violated
Sections 2 (6) and (7) and 8(b) (4) (A) of the National Labor Relations Act, herein-
after called the Act.
' On February 5, 1958 , the hearing was reopened upon motion of the Respondent and
certain exhibits were received as Respondent ' s Exhibit 1 , together with various argu-
ments of the parties, submitted in writing , on Respondent ' s motion and the proffered
exhibits.
GENERAL TEAMSTERS LOCAL NO. 324 29
Upon completion of the evidence, the General Counsel's representative at the
hearing engaged in oral argument in support of the General Counsel's position. The
Respondent and the Charging Party have filed briefs with the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS AND AFFILIATIONS OF THE EMPLOYERS
Pierce Freight Lines, Inc., hereinafter called Pierce, is an Oregon corporation with
its principal place of business in Portland, Oregon.
Sites Silver Wheel Freight Lines, Inc., hereinafter called Sites, is an Oregon cor-
poration with its principal place of business in Portland, Oregon.
Pacific Motor Freight Lines, hereinafter called Pacific, is a California corporation
with its principal place of business in San Francisco, California.
Wright Truck Line, hereinafter called Wright, is an Oregon corporation with
its principal place of business at Stayton, Oregon.
Pierce, Sites, Pacific, and Wright each is, and at all times material hereto was, a
member of Truck Operators League of Oregon, an Oregon nonprofit corporation
with its principal place of business in Portland, Oregon, which exists, inter alia, for
the purpose of representing its members in collective bargaining with various labor
organizations, including Respondent herein.
Pierce, Sites, Pacific, and Wright each is, and at all times material hereto was, a
common carrier engaged in transportation of freight and products by motor vehicle,
and licensed as such by the Interstate Commerce Commission; annually, each re-
ceives in excess of $100,000 for services performed by it directly linked to the
interstate carriage of goods.
McDonald Candy Company, hereinafter called McDonald, is an Oregon corpora-
tion with its principal place of business at Eugene, Oregon.
Murray Distributing Company, hereinafter called Murray, is the trade name of
the copartnership of Robert A. Thompson and Gerald R. Murray, with its principal
place of business at Eugene, Oregon.
Coast Distributing Company, hereinafter called Coast, is an Oregon corporation
with its principal place of business at Portland, Oregon.
At all times material hereto, McDonald, Murray, and Coast each were and are
engaged at Salem, Oregon, in the distribution, inter alia, of beer. During the past
year each has received, directly from outside Oregon, beer and other merchandise
valued in excess of $500,000.
Upon the basis of the foregoing stipulated facts, it is found that Pierce, Sites,
Pacific, Wright, McDonald, Murray, and Coast, each is an employer within the
meaning of Section 2(2) of the Act, and each is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. It is further found that it will
effectuate the policies of the Act for the Board to asserts its jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The facts
There is no substantial dispute on the facts in this case.
In furtherance of its labor dispute with McDonald, Murray, and Coast, beer
distributors, the Union, beginning about August 1957, engaged in a strike against
those companies and apparently was successful in preventing them from continuing
directly their business of beer distribution in and about Salem, Oregon. There
appears to be no question that the Union's dispute with McDonald, Murray, and
Coast was primary in character and there is no issue with respect to strike activities
limited to the premises of those companies.
On or about September 11, McDonald, Murray, and Coast, respectively, obtained
the services of certain common carriers to undertake the delivery and distribution
of beer in the Salem area. Among these common carriers were Pierce, Sites,
Pacific, and Wright. The beer to be delivered on behalf of McDonald, Murray,
and Coast, at the bidding of McDonald, Murray, and Coast, was trucked by common
carrier to the local warehouses of Pierce, Sites, Pacific, and Wright, respectively,
packaged or labeled for delivery to local customers, and Pierce, Sites, Pacific, and
Wright undertook that delivery. When they did so their trucks were followed by
union pickets to the premises of customers where delivery was being undertaken,
30 DECI6IONS OF NATIONAL LABOR RELATIONS BOARD
and when the trucks rested persons engaged in picketing got out of their cars and
displayed their picket signs. The signs named McDonald, Murray, or Coast-ac-
cording to whose beer was being distributed-as companies being struck by the
Union, and characterized those companies, respectively, as strikebreakers. As a
result of the said picketing it appears that distribution of beer on behalf of McDonald,
Murray, and Coast, was effectively blocked. The General Counsel makes no claim
that the picketing was other than peaceful in character.
On the basis of these facts, we are asked to find that the Union picketed the
premises of "customers" of McDonald, Murray, and Coast whenever the trucks of
Pierce, Sites, Pacific, and Wright "were at such premises to deliver beer ordered
from McDonald, Murray or Coast," and by the said picketing and "other means,
including orders, directions, instructions and appeals," the Union engaged in and
"induced and encouraged employees of Pierce, Sites, Pacific, Wright, and of other
employers, to engage in strikes or concerted refusals in the course of their employ-
ment" to transport or otherwise handle goods or commodities, or to perform services,
with an object "to force or require Pierce, Sites, Pacific, Wright, and other employers
or persons," to cease handling, transporting or otherwise dealing in the products
of McDonald, Murray, and Coast and to cease doing business with McDonald,
Murray, and Coast.
The evidence serves to narrow the issues somewhat. In addition to the ambulatory
picketing of trucks of Pierce, Sites, Pacific, and Wright, whenever and wherever
those trucks were being used for delivery of beer on behalf of McDonald, Murray,
and Coast, the Union's pickets on occasion called the attention of certain drivers
of those trucks to the existence of the picket line and, in effect, admonished them
not to cross the picket lines. The employees of no "other employers" were so
admonished or, for that matter, addressed. At no time did the pickets enter onto
the property of employers to whom delivery of the picketed beer was attempted by
Pierce, Sites, Pacific, and Wright, and if employees of such employers at any time
had any contact whatever with the Union's pickets, there is no evidence of it.
B. The law
An issue is whether Pierce, Sites, Pacific, and Wright were "neutral" employers;
i.e., customers of McDonald, Murray, and Coast. They were not, unless their status
as common carriers exempts them from the rule of the Ebasco case? They were
undertaking to perform services which constituted the normal business-of McDonald,
Murray, and Coast, and which the latter would have performed except that they
had been forced to discontinue their normal Salem operations as a result of their
dispute with the Union. The Union had no interest in any deliveries made by
Pierce, Sites, Pacific, and Wright, other than their attempted delivery of beer
normally distributed by McDonald, Murray, and Coast, to customers of the latter,
and only those trucks attempting such deliveries were picketed. In order that its
objectives might not be confused and that it might not be prejudiced before the
Board and the courts in the matter, the Union refrained from picketing the Salem
warehouses from which deliveries of various products other than the struck goods
occurred. It was only after a truck. undertaking deliveries normally made by the
struck companies left the warehouse, that a picket was put on it.
If the term "allies" has comprehensive meaning as applied in boycott situations,
it is applicable here. As stated by Senator Taft during the course of debate on
proposed amendments to the Act in the Eighty-First Congress:
The secondary boycott ban . is not intended to apply to a case where [the
secondary employer] is, in effect, in cahoots with or acting as a part of the
primary employer. . The spirit of the Act is not intended to protect a man
who is cooperating with a primary employer and taking his work and doing
the work which he is unable to do because of the strike. [Emphasis added.] 3
In my opinion it is not necessary in establishing an ally relationship to prove
conspiracy or any complicity whatever further than the naked fact that one is doing
the work of the primary employer, at the bidding of the primary employer, which the
primary employer would himself be doing except that he is unable to do so because
of the strike. There can be no question, however, that in attempting the delivery of
beer for McDonald, Murray, and Coast, and Pierce, Sites, Pacific, and Wright well
knew that the said delivery was the normal business of McDonald, Murray, and
Coast, and that their services were required only because the normal operations of
the latter had been disrupted because of a labor dispute. The delivery of the struck
2 Doud v. Metropolitan Federation of Architects, etc. (Ebasco ), 75 F. Supp. 072.
4 95 Cong. Rec. 8709.
GENERAL TEAMSTERS LOCAL NO. 324 31
beer to the Salem warehouse of Sites was made by McCracken Brothers Motor
Freight, common carriers, of Eugene and Portland, Oregon, at the bidding of Coast
and McDonald. McCracken had no terminal of its own in Salem, and Sites was its
Salem agent. The agent acting on arrangements made by the principal stands in the
shoes of principal with respect to those arrangements. It was stipulated that other
carriers attempting to perform the strike-bound work, operated under the same kind
of arrangement. In short, here there was an arrangement directly between strike
bound employers and the common carriers for the latter to perform the strike-bound
work. It is at least arguable, however, that it makes no difference whether the
delivery of the struck beer by Pierce, Sites, Pacific, and Wright was undertaken pur-
suant to direct arrangement with the struck employers, respectively, or through some
intermediary. "The result must be the same whether or not the primary employer
makes any direct arrangement with the employers providing the services." [Em-
phasis added.] N.L.R.B. v. Business Machines and Office Appliance Mechanics,
etc., Local 459 (Royal Typewriter Company), 228 F. 2d 553 (C.A. 2), setting aside
111 NLRB 317; Board petition for cert. denied: 351 U.S. 962.4
We now approach the novelty in the case for here the General Counsel and the
Charging Party advance the interesting theory that because Pierce, Sites, Pacific, and
Wright were common carriers, and as such were required by the Interstate Commerce
Act, hereinafter called ICA,5 to make their facilities available without discrimina-
tion or undue preference to all customers willing to meet the conditions of their pub-
lished tariffs and schedules within the physical limits of their facilities,6 they cannot
be regarded as "allies" of the primary employer, but must be regarded as customers
or "neutrals," and therefore the admitted inducement of their employees to refuse to
perform services normally performed by employees of McDonald, Murray, and
Coast, now on strike, was violative of the secondary boycott provisions of the Act.
There is no precedent on precisely this point.
It will be assumed, arguendo, that when requested to do so, Pierce, Sites, Pacific,
and Wright were required by provisions of the ICA to undertake the deliveries nor-
mally made by McDonald, Murray, and Coast. Whether or not the failure of those
attempts, due to circumstances beyond their control, subjected them to penalties is
a matter with which we need not concern ourselves here.? The fact is that while
these common carriers are subject to regulation by the ICC, they are privately owned
and operated, like any other business enterprise, for profit. McDonald, Murray, and
Coast hired them to do what McDonald, Murray, and Coast were unable to do be-
cause of the strike, and no doubt paid them for their services. They undertook to
perform the services required of them by McDonald, Murray, and Coast, with the
reasonable expectation of making money out of the venture. There is nothing in the
Act which places them in a special category with respect to the intendment and provi-
sions of the Act. Regardless of motive, these common carriers were engaged in
what is commonly and appropriately called "strikebreaking" and, as observed, they,
not unreasonably, expected to make money out of it. They thereupon stood in the
shoes of the primary employer whether they would choose to stand there or not, and
the Union reasonably thenceforth and to the extent that they stood in the shoes of
the primary employer, regarded them as primary disputants .$ As phrased by Senator
Taft, they were "in effect" acting as a part of the primary employer. In this situa-
tion , I respectfully submit that if an "accommodation" between agencies of Govern-
4 Following the Board's admonition that it is the duty of the Trial Examiner to apply
Board precedent, I do not here apply the reasoning of the court in the Royal Typewriter
case, but merely cite it to show that there is authority for its application. The Pruden-
tial Insurance Company of America, 119 NLRB 768.
5 49 U.S.C.A., Part II, Sec. 301, et seq.
6 See section 316 of the ICA, and, particularly, section 316(d) thereof, paraphrased in
Genuine Parts Company, 119 NLRB 399.
7 For those sympathetic to the plight of the carriers in this situation, it might be
observed that in Montgomery Ward d Co. v. Northern Pacific Terminal Co., 128 F. Supp.
475, and similar cases, in which common carriers were penalized for refusing to handle
freight because a union threatened reprisals, there was a refusal to handle the freight.
Here was no such refusal; here the carriers did all that reasonably could be required of
.them. The cases appepr to be distinguishable.
8 In National Union of Marine Cooks and Stewards, et al. (Irwin-Lyons Lumber Com-
pany ), 87 NLRB 54, 56, the Board found that an alleged secondary employer, who was a
public utility, was in fact an ally of the primary employer. This was a "straight-line"
operations case but the Trial Examiner did consider that the alleged secondary employer
was a public utility "required to accept and transport logs for all persons, at rates set by
the Commission" and found, with Board approval, that this did not "affect" his conclu-
sions with respect to the 8(b) (4) (A) allegations of the complaint.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment is appropriate such accommodation should take full cognizance of Section 13 of
the Act which provides: "Nothing in this Act, except as specifically provided for
herein, shall be construed so as either to interfere with or impede or diminish in any
way the right to strike, or to affect the limitations or qualifications on that right," and
the fact that Congress refused to exempt common carriers from the requirements of
the Act. Speaking to this latter point, Senator Taft said:
If we begin with public utilities , it will be said that coal and steel are just as
important as public utilities. I do not know where we could draw the line.
So far as the bill is concerned, we have proceeded in the theory that there is a
right to strike. . . .9
The Board's decision in the Genuine Parts Company case 10 is inapposite. The
common carriers involved in that case were not undertaking to do the business nor-
mally done by the struck employer, a manufacturer. They were clearly and in-
disputedly secondary employers. The Board did not in that case find that their
status as secondary employers was affected by regulations of the ICC. The Board
simply held in that case that having no volition in the matter of transporting, or
not transporting goods for a struck employer, those common carriers could not
make a valid hot-cargo contract with a labor organization. The rationale of that
case, whatever its merits, can have no application here, where the problem is a
relatively simple one: were the common carriers here involved, because of the
character of their undertaking, allies of the primary disputant, or neutrals? Con-
ceivably they may have been neutrals in spirit; incontestably they were not in fact.
And law, I have been taught, concerns itself primarily with facts.
While I would rest a decision on the broader grounds above stated, note is taken
of Respondent's argument that the deliveries undertaken by the carriers on behalf
of McDonald, Murray, and Coast were not required by "their published tariffs and
schedules" and therefore must be construed as having been voluntarily undertaken.
It appears that (1) the published tariffs and schedules of the carriers did not require
them to undertake split deliveries on a C.O.D. basis, and (2) included under the
heading "Impracticable Operation," was the following: 11
Nothing in this tariff shall be construed as making it binding on a carrier to
pick up and/or deliver freight at locations from and/or to which it is imprac-
ticable to operate equipment on account of the condition of highways, roads,
streets or alleys, or because of riots or strikes. -
The evidence clearly establishes that the carriers here involved did undertake
split deliveries on a C.O.D. basis on behalf of McDonald, Murray, and Coast. The
attorney for the Charging Party, while not questioning this fact or that their pub-
lished tariffs and schedules did not require them to make deliveries of this character,
argues that this is immaterial because there "is nothing in the record to indicate
that the consignors of the beer would not have insisted on delivery by the common
carriers even if the latter had refused to make C.O.D. collections in connection with
with their deliveries." The significant fact in this connection, however, is that
93 Cong. Rec. 3535, 2 Leg. His. L. M.R.A. 1006.
10 Truck Drivers and Helpers Local Union No . 728, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America, AFL-CIO ( Genuine'Parts
Company), 119 NLRB 399.
11 These findings are based on certain duly authenticated exhibits composed of the
published tariffs and schedules referred to. These exhibits were received over the objec-
tions of the General Counsel and the Charging Party , upon motion of the Respondent, and
the hearing was reopened for that purpose. Except for the manner in which the issue
was raised at the hearing, Respondent ' s motion might well have been deemed untimely.
There was nothing on the face of the complaint from which it might have been inferred
that the common carrier status of the alleged secondary employers was an issue, and the
issue was first injected into the proceedings on redirect examination of the witness
McCracken by the Charging Party . It can hardly be questioned that the carriers' pub-
lished tariffs and schedules are germane to the issue thus raised for the first time at the
hearing. The published tariffs and schedules constitute the carriers ' sole "holding out" to
the public and that "virtually absolute duty" referred to in the decisions , is to serve all
persons requesting service in the manner and to the extent set out in the published tariffs
and schedules,. Montgomery Ward d Co ., supra ; Minneapolis and St. Louis Railway V.
Pacific Gamble Robinson Co., 215 F. 2d 126. Assuming that the submission of the ex-
hibits by the Respondent was "untimely " in a sense , nevertheless, in my opinion these
published tariffs and schedules are too fundamental to a proper consideration of the
issue to be excluded for merely technical reasons.
GENERAL TEAMSTERS LOCAL NO. 324 33
there is nothing in the record to indicate that McDonald , Murray, and Coast would
have solicited these deliveries on any other basis. Whether they would or would
not is de hors the record and purely speculative : the fact established in the record
is that the carriers undertook deliveries of a character they were not required to
undertake.
I shall not, of course , attempt to construe or to apply the "Impracticable Opera-
tions" article in the published tariffs and schedules inasmuch as the ICC has not
itself as yet passed on the efficacy of such clauses . The Charging Party argues that
the court in the Montgomery Ward & Co. case , supra, found that certain limiting
clauses in the carriers ' bills of lading did not excuse their failure to perform. It
may be questioned that limiting clauses in bills of lading are to be equated with
the "Impracticable Operation" article in the carriers ' published tariffs and schedules,
and it is noted that the ICC in the recent Galveston Truck Line Corporation case 12
specifically notes the absence of an "Impracticable Operation" clause in the pub-
lished tariffs and schedules there under scrutiny , and cites the absence of such a clause
as a factor distinguishing that case from earlier decisions , commenting:
Both of the cited reports involved strikes and picket lines and both involved
tariff provisions stating that nothing therein shall be construed as making it
binding upon a carrier to pick up and deliver freight from or to locations at
which it is impossible or impracticable to operate trucks on account of riots and
strikes. The legality of such tariff provisions was not contested in either pro-
ceeding. The reasonableness of such tariff provisions is now under considera-
tion in a pending proceeding , No. 31944 Pick Up and Delivery Restrictions-
California-Rail,-and no comment need be made thereon at this time.
Suffice it to say that in view of the published tariffs and schedules of the carriers
involved herein-the authenticity of which has not been questioned-the naked
testimony on redirect examination by the Charging Party, of the Witness McCracken
to the effect that he understood the carriers were required to make the deliveries
they undertook on behalf of McDonald, Murray, and Coast, does not, in my
opinion , constitute a predominance of the probative evidence on the point.
A second possible issue is whether the ambulatory picketing of trucks delivering
beer for Murray, McDonald , and Coast induced employees of their customers to
strike, with an object of causing said customers to cease doing business with
Murray, McDonald , or Coast , as the case may be. With respect to the alleged
inducement , the complaint refers indiscriminately to employees of Pierce , Sites,
Pacific, Wright, and "other employers ," and the General Counsel 's representative at
the hearing appeared to rest on the contention that Pierce, Sites , Pacific, and
Wright were secondary or neutral employers . The matter will not be dealt with
at any great length.
I have found that Pierce , Sites, Pacific, and Wright were allies of the primary
employers , within the . meaning of that term , and that the Union 's inducement,
through ambulatory picketing , of their employees to refuse to render services nor-
mally constituting the business of McDonald , Murray, and Coast, with an object
of stopping the distribution of the struck goods, was lawful. The evidence will
not, in my opinion , support a finding that the Union had any other object in its
ambulatory picketing . Its sole and apparently successful object was to stop dis-
tribution of beer which except for its labor dispute with McDonald, Murray, and
Coast, would have been distributed by the latter . The Union very carefully de-
fined its objectives by not picketing the warehouses of Pierce , Sites, Pacific, and
Wright; by limiting its picketing to points at which these employers attempted
delivery of the struck beer to customers of McDonald , Murray, and Coast, and to
times when such deliveries were being undertaken ; by avoiding and refraining from
a trespass on the property of customers of McDonald , Murray, and Coast, in the
conduct of its picketing; and by carrying picket signs which unequivocally and
accurately identified the primary employers against whom the picketing was directed.
Inasmuch as ambulatory picketing was the only selective method of picketing
available to the Union , the only method by which it , in the light of Board decisions,
could negative an inference that its picketing activities were directed against the
carriers involved in their distribution of products other than the struck goods,
the entire line of cases stemming from Washington Coca-Cola is inapposite,13
12 Galveston Truck Line Corporation v. Ada Motor Lines , Inc., et at ., No. MC-C-1922,
December 6 , 1957 , 41 LRR 139, 166.
13 Brewery and Beverage Drivers and Workers Local Union No. 67, etc., (Washington
Coca- Cola Bottling Works, Inc.), 220 F . 2d 380 ( C.A., D.C .), enfg . 107 NLRB 299.
505395-59-vol. 122-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Moore Drydock is controlling .14 All conditions for lawful ambulatory picket-
ing established in that case having been met, no inference of an unlawful object
may reasonably rest on the facts of this case.
Further, assuming this to be a Washington Coca-Cola situation, it is arguable
whether the ambulatory picketing here engaged in constituted inducement of
employees. of customers of McDonald, Murray, and Coast to engage in a strike
or concerted activities of any character whatever. So far as this record shows,
the ambulatory pickets never came within sight of customer employees ; there was
no occasion for customer employees to cross the picket line or to come into con-
tact with it; and there would be no occasion for the Union to appeal to them to
strike or engage in concerted activities , for the Union 's object was accomplished
when it stopped the unloading of the struck beer by employees of the common
carriers attempting its distribution. Under such circumstances it might be ques-
tioned whether there was a reasonable presumption of inducement and encourage-
ment of customer employers, or, assuming the presumption , whether it was 'not
overthrown by the whole congeries of circumstances attending the picketing,15
but I do not of course venture to answer such questions in the affirmative because
of the Board's declaration in the Ready Mixed Concrete Company case (116
NLRB 461, 462) that ambulatory picketing at the premises of a secondary employer,
where there is adequate opportunity for picketing the primary employer, is ,er
se unlawful, and, because , on the facts of this case as I view them , the question
of inducement is not reached.
[Recommendations omitted from publication.]
14 Moore Drydock Company, 92 NLRB 547.
15 Campbell Coal Company, 110 NLRB 2192 , enf. denied 229 F . 2d 514 (C.A., D.C.),
Board's petition for cert. denied 351 U.S. 972. Otis Massey Co., 109 NLRB 61, enf.
denied 225 F. 2d 205 (C.A. 5), Board's petition for cert. denied , 350 U.S. 914.
Ford Radio & Mica Corporation and International Union,
United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-AFL-CIO), Local 365. Cage No
2-CA-3686. November 7, 1958
SUPPLEMENTAL DECISION AND AMENDED ORDER
On April 19, 1956, the National Labor Relations Board issued a
Decision and Order in this case,' in which it found that the Respondent
had engaged in and was engaging in certain unfair labor practices
ai ecting. ,commerce, . and ordered the Respondent to cease and desist
therefrom and to take certain affirmative remedial action. The Board
found, in substance, that the Respondent had threatened loss of em-
ployment or other reprisals against its employees because of their
union activities, promulgated and enforced a rule prohibiting solici-
tation for the purpose of interfering with the concerted activities of
its employees, and interrogated its employees regarding union activi-
ties, in violation of Section 8 (a) (1) of the Act, and discriminatorily
discharged 34 employees who were engaging in an economic strike,
in violation of Section 8 (a) (3) and (1) of the Act.
The Board thereafter petitioned the United States Court of Appeals
for the Second Circuit for enforcement of its Order against the
Respondent. On August 12, 1958, the court handed down an opinion
1 115 NLRB 1046.
122 NLRB No. 9.