International Brotherhood of Teamsters, Chaffeurs, Warehousemen and Helpers of America

National Labor Relations Board - Board Decisions

Nov 28, 1950

92 N.L.R.B. 255 (N.L.R.B. 1950)

In the Matter Of LOCAL UNION No. 878 OF THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL and ARKANSAS EXPRESS, INC.
Case No. 32-CC-3.-Decided November 28,1950
DECISION AND ORDER
STATEMENT OF THE CASE
Upon an amended charge filed on February 23, 1950, by Arkansas
Express, Inc., herein called Arkansas, the General Counsel of the
National Labor Relations Board, herein called, respectively, the Gen-
eral Counsel and the Board, by the Regional Director for the Fifteenth
Region (New Orleans, Louisiana), issued a complaint, dated April
25, 1950, against Local Union No. 878 of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (b) (4) (A) and Section
2 (6) and (7) of the Act. Copies of the complaint, the amended
charge, and notice of hearing were duly served upon the Respondent
and Arkansas.
With respect to the unfair labor practices, the complaint alleged
in substance that on or about February 6, 1950, and at various dates
since, the Respondent engaged in a strike, and by orders, directions,
and instructions induced and encouraged employees of certain motor
carriers other than Arkansas to engage in a strike or other concerted
refusal in the course of their employment to use, transport, or other-
wise handle or work on any goods, articles, materials, or commodities
of Arkansas, or intended for delivery to Arkansas, or to perform
services with respect thereto, an object thereof being to force or require
certain motor carriers to cease doing business with Arkansas.
Thereafter, the Respondent filed its answer, in which it admitted
certain allegations of the complaint, but denied that it had engaged
in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Little Rock, Arkansas,
on May 23, 24, and 25, 1950, before Horace A. Ruckel, the Trial Ex-
92 NLRB No. 64.
255
4256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
..aminer duly designated by the Chief Trial Examiner . The General
--Counsel , the Respondent , and Arkansas were represented by counsel
and participated in the hearing. All parties were afforded full op-
portunity to be heard, to examine and cross -examine witnesses, and
to introduce evidence bearing on the issues.
At the close of the General Counsel's case, the Respondent moved
to dismiss the complaint on the ground that no violation of the Act
had been shown . The Trial Examiner granted the motion orally from
the bench and closed the hearing.
Thereafter , the General Counsel filed a petition together with a
"supporting brief, requesting the Board to review the Trial Examiner's
action in granting the Respondent 's motion to dismiss the complaint,
.:and to remand the case to the Trial Examiner for further proceedings
in accordance with law. The Board has considered the petition for
::review with its supporting brief, and finds that it is without merit
for the reasons hereinafter discussed . The Board has also reviewed
the other rulings made by the Trial Examiner at the hearing and finds
that no prejudicial error was committed . The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Arkansas Express, Inc., an Arkansas corporation, is a motor vehicle
,common carrier operating under certificates of public convenience and
necessity issued by the Interstate Commerce Commission and by the
:Public Service Commission of the State of Arkansas . Its principal
.place of business is at Pine Bluff , Arkansas , and it operates four branch
terminals at Little Rock, Camden , and El Dorado , Arkansas, and at
-Greenville , Mississippi . During 1949, Arkansas carried over 59 mil-
lion pounds of freight, 49 percent of which was carried either by it or
its connecting carriers between different States. The parties stipu-
lated that the following motor vehicle common carriers , 'Arkansas
Motor Freight Lines, Inc.; England Brothers Truck Lines; Highway
Empress, Inc.; Intercity Trucking Company; Jones Trucking Lines,
Inc.; Kimbel Lines, Inc.; Mercury Motors, Inc.; Superior Forwarding
Co.; and Southwestern Trading Co ., with which Arkansas inter-
changes freight at Little Rock, handle goods and commodities among
the several States and are engaged in interstate commerce. Arkansas
:admits that it is in the business of interstate transportation of general
commodities.
LOCAL UNION 878, INTERN'L BROTHERHOOD OF TEAMSTERS, ETC. 257
We find that Arkansas is engaged in interstate commerce within,
the meaning of Section 2 (6) and (7) of the Act.,
H. THE LABOR ORGANIZATION INVOLVED
The Respondent, Local Union No. 878 of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL, is a labor organization within the meaning of Section 2 (5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary of material facts and evidence 2
1. Background
The events giving rise to this proceeding occurred in and about Little
Rock, Arkansas, and involved the operations of Arkansas, the primary
employer, and of the various other Little Rock trucking companies,
listed above, herein collectively called the other carriers or the sec-
ondary employers. The normal practice among these companies was-
to interchange freight at their various terminals for further trans-
portation and delivery. Ordinarily, a carrier with freight on its docks
to be forwarded out of Little Rock by another trucker would call the-
latter to pick it up for forwarding. In January 1950, Arkansas ar-
ranged with the other carriers that, instead of calling them to pick-
up freight at its terminal, it would deliver the freight to their docks.
and terminals and would expect them to do likewise. With few ex-
ceptions, the other carriers agreed and complied with this request.
For a number of years before the strike hereinafter considered, the-
Respondent represented certain employees of all of these companies,.
including checkers, city drivers, truckmeh, and helpers. The Respond
ent's contractual relations with the other carriers continued uninter-
rupted through the date of the hearing herein. Its last contract with-
Arkansas expired on December 31, 1949; following the economic strike
of February 6, 1950, discussed below, Arkansas replaced the strikers
with new employees.
2. The strike and the secondary activity
On February 6,1950, the Respondent called the employees of Arkan-
sas on strike and started picketing its Little Rock terminal.3 At the
' W. C. King d /b/a Local Transit Lines, 91 NLRB 623.
z All factual findings herein are based on credible and uncontradicted evidence introduced
by the General Counsel. Because of the Trial Examiner 's favorable ruling on the Respond-
ent's motion to dismiss , the Respondent called no witnesses.
' So far as appears in the record , the strike was precipitated by the discharge of an
employee . As to settlement attempts or reasons for continuance of the strike , the record
is not clear.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:start of the strike, Arkansas notified the connecting carriers of its
inability to handle freight due to the lack of personnel. Thereafter,
.Arkansas hired- 40 workers to replace its original complement of
approximately 55 employees, and requested the other carriers to con-
tinue their regular business with it. The Respondent's picketing of
Arkansas' premises continued throughout the period of the activities
detailed below.
The record clearly shows, and we find, that the Respondent, in aid
.of its primary dispute with Arkansas, brought pressure upon the other
-carriers-secondary employers-to boycott Arkansas completely. The
terminal manager of Highway Express testified that, sometime be-
tween February 6 and February 20, the Respondent Union's assistant
business agent, James Harrison, told him that Highway Express
-could not call Arkansas for a pickup because there would be "nobody
to check the freight," and that if Highway Express made the call the
men "might walk out" with "the sanction of the Union." On Feb-
ruary 21, Harrison, according to the testimony of the terminal man-
ager of Jones Trucking, told him that "freight that crossed the picket
line was unfair freight, and he didn't think that we should handle it.
" Harrison made a similar request on February 21 of the terminal
manager of Kimbel Lines, saying that Kimbel Lines was not to deliver
freight to Arkansas or to permit Arkansas to pick up freight at.
Kimbel Lines' docks. On February 23, Harrison, having heard that
Arkansas Motor had given freight to Arkansas, threatened a manager
of Arkansas [Motor with a strike "if you give them [Arkansas] any
freight." On the same day, according to the testimony of the man-
ager of England Brothers, Harrison also threatened England Brothers
with a strike because it had given freight to Arkansas. Upon the
manager's agreement not to give Arkansas any more freight, Har-
rison agreed not to call a strike. And, on about February 23, Har-
rison told the claims adjustor and solicitor for Mercury Motors that
he was checking up on the motor carriers and that if he found any
of them doing business with Arkansas, he would "put a picket line
.around them."
It is equally clear that, with the advent of the strike on February 6,
virtually all interchange of freight ceased between Arkansas and the
other trucking companies in Little Rock.4 Except for shipments han-
dled surreptitiously and except for shipments to such cities as Hamp-
ton and Strong, Arkansas, areas served exclusively by Arkansas
shipments that the Respondent usually permitted upon the request of
the other trucking companies-Arkansas received no freight from
4 Interchange of freight continued at Arkansas' Pine Muff, Arkansas , terminal until
February 13, when the Respondent established a picket line around that terminal also.
LOCAL UNION 878, INTERN'L BROTHERHOOD OF TEAMSTERS, ETC. 259
the other carriers. Nor, up to about February 20, did the other car-
riers accept any freight from Arkansas.
On February 20, Arkansas obtained an injunction in the Pulaski
Chancery Court of the State of Arkansas, directed against the other
Little Rock carriers and their employees, but not against the Respond-
ent. The injunction restrained the other carriers and their em-
ployees from refusing "to conduct business relations with [Arkansas]
and from continuing to refuse to accept freight shipments from
[Arkansas] and to deliver shipments to [Arkansas] for trans-
portation...."
Following the injunction, the Respondent modified its demands
upon the trucking companies named in the court order by permitting
them, only by use of managerial or supervisory personnel, to accept
freight from Arkansas and to store it on their docks. In all other
respects the Respondent continued its pressure upon the other car-
riers, insisting that in no event must rank-and-file employees handle
freight received from Arkansas and that no shipments were to be
given to Arkansas by the other carriers. As a result, the freight
received from Arkansas, instead of being forwarded in its normal
course, accumulated on the other carriers' docks. What little was
shipped was shipped late and by subterfuge, when union employees
were not present. On one occasion, Union Agent Harrison, after a
discussion with the terminal manager of Jones Trucking, not only
permitted some shipments to Hampton and Strong, but also approved
the handling and forwarding of freight received from Arkansas.
,Such instances were the exception and not the rule.
The record also shows that to some extent, at least, the interruption
,of the flow of freight between Arkansas and other carriers was caused
by direct refusal of the employees of the secondary employers to
handle Arkansas freight. Highway Express' terminal manager testi-
fied that he talked "to our men about this freight going to Arkansas
Express and they wouldn't handle it," and that after the injunction,
he "asked each one [of his employees] individually if he would handle
Arkansas Express freight and each one said `No'." A Highway Ex-
press employee, speaking of handling Arkansas freight during this
period, testified "that I couldn't, because they were on strike." An-
other employee, at Arkansas Motor, told his terminal manager that
"... we consider it `hot' freight and therefore we wouldn't handle
fit]," and that "it would be `hot' freight to tis," if received during
the strike. The manager of Kimbel Lines testified that an employee
told him "that he would leave the service of the company before he
would touch the goddam freight." The terminal manager of England
Brothers testified that "our men wouldn't touch it at all," and that he
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"asked the men to load them [Arkansas freight], they refused to load
it. . . ." 1
This substantially effective boycott of Arkansas continued un-
changed until March 12, when the Respondent held a general mem-
bership meeting. The record contains only meager evidence as to
what transpired at this meeting. A very brief minute of the meeting
received in evidence shows that the Respondent's president and busi-
ness agent, Odell Smith, "advised the membership that they could not
refuse to handle the freight of the Arkansas Express Company, and
that no one had any authority to order them not to handle Arkansas
Express freight." The membership then voted to "continue to handle
the freight of Arkansas Express Company," and to "refuse to cross
any picket line." Further, Lawrence O'Dell, a Superior Forwarding
Company employee member of the Respondent, testified that the mem-
bership at the union meeting considered the advisability of calling a
strike against the other carriers, but rejected the idea. He added that
President Smith advised the meeting that he [Smith] thought that
the other carriers would cooperate with the Respondent in diverting
freight from Arkansas.
On the next day, March 13, the employees of the secondary carriers
resumed loading out Arkansas freight that had accumulated on their
employers' docks and thereafter continued to handle in normal course
such freight as was received from Arkansas 5
Normally, 60 to 65 percent of Arkansas' freight was received from,
and the remainder forwarded to, the other carriers . The president
and general manager of Arkansas testified that while shipments for-
warded to the other companies have resumed approximately normal,
proportions since March 12, receipts of freight were "not normal, prac-
tically nothing.."
3. Activities of the Respondent's agents
(a) Intercity Trucking Company's dock foreman, Gill, testified
that shortly after issuance of the injunction the Respondent 's assist-
ant business agent, James Harrison , spoke to him. at the Intercity
Trucking dock and "told me that we were not going to handle the
On the resumption of such work by his employees on March 13, the terminal manager
of England Brothers testified as follows :
Well, we had this accumulation of. freight on the dock and when it come time to
load our northbound trailer, why I didn't ask the boys. One of them come to me and
said "You know that they released us. It's all right to load it." I said, "Yah, Mr.
Odell Smith called me and said they had got ready , made arrangements to go ahead'
and load it and release the freight," and I think I told him over the phone , that he
would have to contact his men and authorize them . He said "That has already been
taken care of" so that was all there was to. that.
LOCAL UNION 878, INTERN ' L BROTHERHOOD OF TEAMSTERS , ETC. 261
[Arkansas ] freight . . . the boys are not going to handle it, and the
boys were on strike. . . ."
Gill is a member of the Respondent Union and is stationed at the
Intercity Trucking terminal , along with an office clerk and three other
pickup drivers. According to the testimony of the Intercity Truck-
ing manager , Gill is in charge of the terminal during the absence of
the manager and of the solicitor , both of whom spend much of their
time away from the terminal . Gill testified that he "see [s] that the
men unload , get the trucks loaded, unload the freight , see that trucks
;get out on time"; that he routes the trucks and bills of the other drivers
and helps load and unload freight; that he spends 50 percent of his
time at the terminal and 50 percent in the trucks ; and that he receives
the same rate of pay as the drivers. He also stated that on one oc-
•casion he had hired a, temporary employee and that, although he had
never fired anyone, he had authority to send an employee to the
terminal manager to be fired and that the latter would fire such em-
ployee. In this respect, the terminal manager testified that "the men
have been told in his [Gill's] presence that if they could not work for
him they could not work for me. If he ever sent one to me he was
fired. He would be."
(b) W. C. Pepper , an employee of Mercury Motors, testified that
on February 21, on his own initiative , he telephoned the Respondent's
president and business agent, Odell Smith , and inquired concerning
the Union's position respecting the injunction and any Arkansas
freight that might be offered to Mercury Motors. Smith told him that
the Mercury Motors manager , Mains, could sign for it and "we would
put it in the warehouse," but that, as it had crossed the picket line,
"that freight was hot." Pepper added that he made this call on be-
half of Mercury Motors.
Pepper further testified that the next , day, at Manager Mains' re-
quest, he telephoned Harrison concerning the same problem and that
Harrison advised him "to let some agent sign for it [Arkansas, freight]
and when the agent accepts it, to have it put some place in the ware-
house where it won't be in the way ." Mains testified that he asked
Pepper to call Harrison because "Pepper is my dock foreman .. .
I wanted him to know whether we could accept it or not."
At the hearing, Pepper called himself a checker . Manager Mains
stated that he considers Pepper a dock foreman in charge of the dock
and of the proper loading and unloading of trailers . According to
Mains, ". . . when he [Pepper] goes out there to load a trailer he has
full. authority over those bous ( sic) out there to see that it is loaded,
and if it is not loaded right he has to answer to me." Pepper also
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checks freight in and out, loads and unloads trucks, and acts as am
over-short and damage clerk. He receives the same rate of pay as the-
drivers and checkers. Manager Mains testified that, although Pepper
has no authority to hire or discharge other employees, his recommenda-
tions in these respects are given weight and are followed by the
manager.
Like Gill, Pepper is a member of the Respondent He considers it-
to be his bargaining representative, and, as there is no union steward.
at Mercury Motors, he relays union messages to other employees and
keeps their union books for them.
(c) Clarence Moore, then a pickup driver employed by Highway -
Express, testified that, on one occasion during the Arkansas strike,,
Respondent's agent, Harrison, came to the Highway Express dock.
and spoke to Mel Gentry, the dock foreman,6 while Moore and several.
applicants for employment were on the dock about 15 feet away. As.
a witness, Moore repeatedly insisted that Harrison did not speak to,
him but spoke only to Gentry and that "I just heard him {Harrison]
say something about freight." Moore's earlier affidavit, offered by
the General Counsel to impeach this witness, contains the statement::
"I heard him ask us not to handle it. . . . This was the only time any
one from Local 878 ever talked to me. . . ." Moore denied that he
had made the statement or had sworn to it but admitted his signature.
Pressed by the General Counsel, he added, "Everything I said in there
was true except in there where he [General Counsel's investigator].
said I told him that I heard Jimmie's statement, I told him I thought
I heard it."
(d) On or about February 23, Harrison visited Mercury Motors
and spoke to its solicitor and claims adjuster, Aycock, admittedly a su-
pervisor. Standing by when the conversation occurred were Pepper
and the "young lady in the office." Aycock testified that Harrison
told him that he was checking on rumors that Mercury Motors and
other carriers were doing business with Arkansas, and that if so, "I
will put a picket around them." According to Pepper, Harrison said
that "If he found anybody doing business with them, he was going to
give them 24 hours notice to clear the dock before he would establish
a picket line." The "young lady in the office" did not testify.
At about the same time, Harrison also spoke to the terminal man-
ager of England Brothers. After testifying that this conversation.
took place "in hearing distance" of two employees working at the
dock and loading out a truck, the manager stated ". . . after Mr.
Harrison asked me if I gave the Arkansas Express shipments I said
6 Gentry supervises employees on the dock and is understood to have authority to firer
them. The General Counsel did not contend that Gentry is a nonsupervisory employee.
LOCAL UNION 878, INTERN'L BROTHERHOOD OF TEAMSTERS, ETC. 263
`yes' and he told me he was serving a strike notice; he asked me if I
couldn't give the shipments to someone else." 7 Neither of the two
employees mentioned was called to testify.
(e) As stated above, the Respondent had contracts in effect with
each of the other carriers throughout the period of these events. Each
of the contracts contained the following clause :
PICKET LINE
It shall not be a violation of this contract for any employee or
employees to refuse to go through an authorized or legal picket
line of a Union. The Union agrees that in the event the Em-
ployer becomes involved in controversy with any other Union,
the Union will do all in its power to effect a fair settlement. How-
ever, if the Employer has in its possession a shipment or ship-
ments of merchandise destined to a company on which a strike
has been called and such shipment or shipments were not shipped
before a notification of the labor controversy, then. the carrier
will be allowed to clear its docks by delivering to the party in
dispute... .
The manager of Arkansas Motors testified that, in refusing a ship-
ment of Arkansas freight, he told an Arkansas official that: "Due to
the fact that Arkansas Express had a picket line around them, we
could not accept the freight, due to the contract with the Union."
The Mercury Motors manager testified as follows concerning a con-
versation he had with Respondent's agent, Harrison, on or about
February 6, 1950, the date of the strike :
A. He told us that they had a picket line around the Arkansas
Express and under the Union contract, we could not do b>siness
with them until they got it straightened out.
Q. Now, in discontinuing business, you understood that was
refusing shipments, too?
A. Well, it is in our contract that we are not to ask men to
run a picket line and when they bring freight across the picket.
line, I am under the impression that would be the same thing.
B. Conclusions
1. Contentions of the parties
The Respondent's motion to dismiss the complaint in this case rests
primarily on the assertion that one of the essential elements required
IIt does not appear that the Respondent ever carried out this threat by calling out
on strike the employees of England Brothers or of any of the other secondary trucking
companies involved.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to prove a violation of Section 8 (b) (4) (A) has not been established
by the evidence offered in the course of the General Counsel's case.
The motion attacks the evidence as insufficient to support a.finding that
the Respondent or its agents induced or encouraged employees of
:secondary employers to withhold their services in the course of em-
ployment. The pertinent language of Section 8 (b) (4) (A) reads
:as follows :
It shall be an unfair labor practice for a labor organization or
its agents- ... to engage in, or to induce or encourage the
employees of any employer to engage in, a strike or a concerted
refusal in the course of their employment to . . . transport, or
otherwise handle or work on any goods. ...
The principal issue raised by the motion, therefore, is whether the
General Counsel has proved that the Respondent induced the
employees of the other carriers to refuse to handle Arkansas freight
in the course of their employment. Following the language of the
proscriptive section of the Act, the complaint alleges that, in addition
to such inducement, illegal if proved, the Respondent also engaged in
.a strike against the secondary employers. The General Counsel does
not contend, nor does the record indicate, that any.secondary work
interruption occurred other than that involving the very employees
allegedly induced by the Respondent. Under these circumstances,
both elements of the complaint-illegal inducement, whether or not
successful , and illegal strike-stand or fall upon the same evidence
relating to the activities of the Respondent's agents.
The General Counsel contends that the conduct of Respondent's
.assistant business agent, Harrison, and of its president and business
.agent, Smith, in ordering Gill, Moore, and Pepper to refuse to handle
Arkansas freight, and the strike threats of these agents, voiced to
secondary employers but in the presence of their employees, is direct
.evidence of illegal inducement of employees withiii the meaning of
Section 8 (b) (4) (A), and, therefore, sufficient to support the com
plaint, apart from any other evidence contained in the record. He
also contends that if these activities of the Respondent's agents do
8 The full language of the section reads :
Section 8 (b). It shall be an unfair labor practice for a labor organization or
its agents -. . . .
(4) to engage in, or to induce or encourage the employees of any employer to engage
in, a strike or a concerted refusal in the course of their employment to use, manufac-
ture , process, transport , or otherwise handle or work on any goods, articles , materials,
or commodities or to perform any services , where an object thereof is :
(A) forcing or requiring any employer or self -employed person to join any labor
,or employer organization or any employer or other person to cease using , selling,
handling , transporting, or otherwise dealing in the products of any other producer,
?processor, or manufacturer , or to cease doing business with any other person ; . . .
LOCAL UNION 878, INTERN'L BROTHERHOOD OF TEAMSTERS, ETC. 265
not per se constitute illegal activity, the record as a whole supports
and requires an inference, even in the absence of any direct proof,
that the Respondent in fact illegally induced the employees of the
secondary carriers to engage in a work stoppage. And, finally, the
General Counsel also argues that the Respondent's identical contract
with each of the other carriers, ien itself, constitutes a violation of
Section 8 (b) (4) (A).
As its main defense, and in support of the motion, the Respondent
insists that notwithstanding the clear evidence of secondary' objective
or-inducement of secondary employers, the General Counsel has not
shown any inducement by the Respondent of employees (other than
those of Arkansas, the primary employer). As further defenses, the
Respondent also argues that it cannot be held responsible for the
activities of its business agents and president, and that the separate
contracts in effect between it and the secondary employers constituted
waivers by the secondary employers of the activities alleged in. the
complaint.
In his oral argument to the Trial Examiner, and in his brief to the
Board, the General Counsel apparently concedes that, on the strength
of Board precedent, it is settled law that inducement of employers
aimed at effectuating a secondary work stoppage does not violate any
of the prohibitions contained in the Acts Our decision herein is,
therefore, limited to the sole factual issue of the sufficiency of evidence
offered to prove illegal inducement of employees of secondary
employers.
2. The direct evidence
(a) The General Counsel contends that Gill and Pepper, who were
told by the Respondent's agents that the Arkansas freight was "hot"
and that "the boys are not going to handle it," are rank-and-file em-
ployees and were illegally induced to withhold their services with
respect to struck freight. Without deciding whether the statements
made by the union agents amounted to inducement or encouragement
to cease work,10 we do not consider these incidents as direct evidence
of illegal conduct because we find, as the Respondent argues, that Gill
and Pepper are supervisors as defined in the Act. The inducement of
these individuals, therefore, was inducement of management person-
nel, or of secondary employers, rather than of employees within the
9 See Sealright Pacific, Ltd., 82 NLRB 271 , where we adopted a Trial Examiner's
finding that the threat of a union representative to picket a secondary employer unless
he refused to handle the primary employer 's products was not a violation of Section 8 (b)
(4) (A) because "the language of Section 8 (b) (4) (A) is addressed to the inducement
or encouragement of 'employees ' rather than 'employers'."
10 Compare , The Grauman Company, 87 NLRB 755, and Kimsey Manufacturing Company,
89 NLRB 1168.
929979-51-vol. 92-19
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 8 (b) (4) (A). Regardless of what was said to
them, or whether Pepper called Smith on February 21 because of in-
dividual curiosity, or, as he testified, on behalf of his employer, the
Respondent's activities with respect to them cannot constitute induce-
ment of employees.
Our findings with respect to Gill and Pepper are based not only on
their title of dock foreman, but on the clear evidence of their super-
visory authority. Thus, Gill not only "sees" that the men load and
unload the trucks, but he once hired an employee and has authority to
send an employee to the manager to be discharged, a recommendation
which the manager would follow. Indeed, the terminal manager made
Gill's supervisory status known to the dock employees in no uncertain
terms by advising them that "if they could not work for him [Gill]
they could not work for me." And Pepper has "full authority" over
employees in supervising the loading of trucks; his recommendations
as to hire and discharge are given weight and are followed by the
employer. He must answer to his terminal manager if the work does
not, run smoothly.
In concluding that Gill and Pepper are supervisors, we have con-
sidered, but find irrelevant, the fact that both are members of the
Respondent and that Pepper handles union messages for his subordi-
nates. Neither the definition of the word "supervisor" contained in
the Act," nor the exclusion of supervisors from the term "employee"
as used in the Act, provides for special treatment of union adherents.12
(b) As to Moore, no contention is made that he was other than a
rank-and-file employee. However, the evidence intended to show that
Union Agent Harrison told him not to handle Arkansas freight is at
best indirect and vague, and, therefore, unreliable. The General Coun-
u Section 2 ( 11) reads :
The term "supervisor" means any individual having authority , in the interest of
the employer , to hire, transfer , suspend, lay off , recall, promote , discharge , assign,
reward, or discipline other employees, or responsibly to direct them , or to adjust
their grievances , or effectively to recommend such action , if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
12 Pepper 's exclusion from the category of employees whose inducement could be violative
of Section 8 (b) (4) (A) also disposes of the General Counsel's argument that Harrison's
threat to the manager of Mercury Motors , to picket the terminal as a reprisal for handling
Arkansas freight, was illegal inducement of Pepper because it was voiced in his presence.
If the Respondent could lawfully influence Pepper directly , necessarily , it could also do
so indirectly.
We attach no significance to the fact that the "young lady in the office" was also present
when this threat to picket was made by Harrison . The General Counsel made no specific
contention with respect to. her presence during the conversation . In any event , it does
not appear that she was required to do any of the work which the Respondent sought to
interrupt. Compare, Conway 's Empress, 87 NLRB 972 , holding that a respondent union
did not unlawfully induce an office worker by requesting him to relay a message concern-
ing secondary work stoppage to his foreman , and, in turn , to the employees on behalf of
the foreman.
LOCAL UNION 878, INTERN'L BROTHERHOOD OF TEAMSTERS, ETC. 267
sel, who impeached Moore as his own witness, admits in his brief that
Moore's testimony is "not unclouded." As set forth above, Moore in-
sisted at the hearing that Harrison had spoken only to the dock fore-
man, a supervisor, although he admitted an earlier statement that he
"thought" he heard Harrison speak "to all of us." We view this evi-
dence as inadequate to support an affirmative finding that Harrison
induced employee Moore to refuse to work on the Arkansas freightl3
(c) Another incident urged by the General Counsel as direct proof
of inducement of secondary employees is the threat to call a strike
against England Brothers, made by Harrison to the manager of that
company "in hearing distance" of two employees. Again we cannot
agree with the General Counsel's tenuous argument. Unquestionably
the employees of all the secondary employers in Little Rock were-
aware of the Respondent's unconcealed strategy of bringing pressure
upon the employers to cripple Arkansas' extensive business, even to the
extent of threatening to strike the other carriers. Certainly, the Re-
spondent's agents could legitimately discuss this planned activity-
itself lawful-with the members at union meetings. We deem it im-
material, therefore, whether or not the strike threat was in fact
overheard by the rank-and-file employees.
(d) Finally, the General Counsel contends that the contract be-
tween the Respondent and the secondary carriers itself constitutes an
independent violation of Section 8 (b) (4) (A). In that agreement,
the only language relating to secondary activity pftovides that em-
ployees may. refuse to cross a primary picket line and that secondary
employers may clear their docks of freight destined to a struck em-
ployer. The contract makes no reference whatever to work stoppages
other than at the situs of primary disputes, nor to union activity,
either to induce work stoppages or otherwise. As the contract, on
its face, is completely silent with respect to the type of union activity
with which Section 8 (b) (4) (A) is concerned, it cannot per se be
deemed violative of the prohibitions contained therein. Apparently
recognizing this fact, the General Counsel modified his contention,
in his brief, arguing that the contract as understood and carried out
between the parties, constitutes an unfair labor practice. Even assum-
ing, as the General Counsel suggests, and as the officials of two second-
ary employers (Arkansas Motor and Mercury Motors) at least,
believed, that by virtue of the contract the secondary. employers had
consented in advance entirely to cease doing business with Arkansas,
there emerges at best only a more effective inducement of the secondary
13 See Wigmore on Evidence, Third Edition,. § 1018: "It is universally maintained by
the courts that Prior Self-Contradictions are not to be treated as having any substantive
or independent testimonial value."
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employers to boycott Arkansas. Further to imply, as the General
Counsel in effect argues, that the employers' consent to the boycott
included permission to the Respondent to induce their employees to
refuse to handle struck freight, requires a totally unwarranted strain-
ing of the plain language of the contract. Accordingly, we find noth-
ing in the contracts, nor in the manner of their execution and enforce-
ment, that constitutes inducement of employees within the meaning
of Section 8 (b) (4) (A).
3. The circumstantial evidence
It thus appears that the record contains no direct evidence of illegal
inducement of employees by the Respondent. The General Counsel,
nevertheless, insists that certain undisputed facts, not in themselves
showing inducement, require the Board to infer that the Respondent
in fact induced the employees of secondary employers to cease work.
Principal among these facts, amply supported by the record, are the
Respondent's secondary objective, its pressure upon the secondary
employers, the employees' membership in the Respondent union, the
achievement of the Respondent's secondary objective, and the con-
formity of the employees' attitude with the Respondent's changing
policy.
We have carefully weighed these facts in the light of the record
as a whole and conclude that they are insufficient to satisfy the burden
of a preponderance of the evidence required to support the unfair labor
practice allegations of the complaint. They may give rise to an aura
of suspicion. And yet each of these facts is perfectly compatible
with a plan, asserted by the Respondent, of exerting pressure only on
the secondary employers. Merely because the Respondent achieved
legally results which could also flow from unlawful acts, we are asked
to find that it slipped into the prohibited area. He cannot do so on
the basis of the insubstantial evidence presented here 14
For the foregoing reasons, and upon the entire record, we do not
believe that the General Counsel, either by direct or indirect evidence,
has sustained the burden of proving any of the allegations of the
14 The General Counsel argues particularly that the Respondent 's authorization to
secondary employees to handle Arkansas freight after the march 12 union meeting, and
the statement thereafter by one of them that "they released us," strongly indicates that
the Respondent had previously instructed the employees to withhold their services. In
-view of the evidence showing that employees themselves refused to handle "hot " or "unfair"
freight, we believe that the more reasonable inference from these facts is that the
Respondent merely sanctioned work by its members which they, as good union men, had
-refused and would normally refuse to do. Indeed , more than the flimsy evidence before
us would be required to prove that the earlier activities of the union members had been
caused by the Respondent 's unfair labor practices , not otherwise shown, rather than by
normal observance of the traditional and widespread practice of union members not to
-handle goods made "hot" by the economic strike of their fellow members.
LOCAL UNION 878, INTERN'L BROTHERHOOD OF TEAMSTERS, ETC. 269
complaint. Accordingly, we hereby affirm the Trial Examiner's ruling
granting the Respondent's motion, and we shall dismiss the complaint
in its entirety.
As the- evidence does not show that the Respondent or any of its
agents engaged in unlawful' conduct, we find it unnecessary to con-
sider the Respondent's further contentions that it is not responsible
for the activities of Harrison and Smith and that its contracts with the
secondary employers constitute a defense to the alleged unfair labor
practices.
CONCLUSIONS OF LAW
1. Arkansas Express, Inc., is engaged in commerce within the mean-
ing of Section 2 (6) and (7) of the Act.
2. The Respondent, Local Union No. 878 of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
3. The Respondent has not engaged in unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act, as alleged in the
complaint.
ORDER
Upon the entire record in this case, and pursuant to Section 10. (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein
against the Respondent, Local Union No. 878 of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, be, and it hereby is, dismissed.
CHAIRMAN HERZOG and MEMBER REYNOLDS took no part in the con-
sideration of the above Decision and Order.