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

National Labor Relations Board - Board Decisions

Dec 29, 1953

107 N.L.R.B. 601 (N.L.R.B. 1953)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS 601
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL, LOCAL NO. 911 and LAKEVIEW CREAMERY COM-
PANY, a copartnership. Case No. 36-CC-28. December
29, 1953
DECISION AND ORDER
On October 8, 1953, Trial Examiner Howard Myers issued
his Intermediate Report in the above-entitled proceeding,
finding that the Respondent Union had engaged in and was
engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondent Union
filed exceptions to the Intermediate Report a supporting
brief, and a separate motion to dismiss the complaint as
moot.
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 Intermediate Report, the exceptions, the
brief, the motion, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following additions
and modifications. i
1. The Respondent Union moved to dismiss the complaint
as moot on the basis of a letter sent by it to the Company
on August 5, 1953, in which it denied that it was seeking to
compel 3 of the Company's partners to join the Union, and
on the basis of a collective-bargaining contract purportedly
entered into between the Respondent Union and the Company
on September 15, 1953. The letter of August 5, 1953, was
sent a day after a Federal district court, pursuant to Sec-
tion 10 (1) of the Act, issued a notice to show cause why a
temporary order should not issue against the Respondent
Union restraining it from violating Section 8 (b) (4) (A) of
'As set forth in the intermediate Report, the Respondent Union picketed the premises of
the Lakeview Creamery Company--the only employer involved in this case--for the purpose
of forcing the individual owners to become members of the Union. We agree with the Trial
Examiner's conclusion that by this conduct the Respondent violated Section 8 (b) (4) (A)
However, the Trial Examiner also stated that primary picketing for any of the prescribed
objectives of Section 8 (b) (4) (A) is also prohibited by the statute. Members Murdock and
Peterson do not agree with this broad dicta of the Trial Examiner, which is unnecessary to
the decision of this case and contrary to other decisions of the Board, and for that reason
do not adopt it. (E. g., International Rice Milling Co. v. N. L R. B , 341 U. S 655; The Pure
Oil Company, 84 NLRB 315). Chairman Farmer and Member Rodgers would find that picketing
in furtherance of the objectives made unlawful by Section 8 (b) (4) (A) is prohibited. Mr.
Rodgers does not believe that picketing for an objective proscribed by 8 (b) (4) (A) can be
said to be permissible merely because the picketing purports to be primary in character.
Chairman Farmer deems it unnecessary in this case to express any opinion as to the legality
of primary picketing for purposes other than to compel employers to join labor organizations
107 NLRB No. 144.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. The Board and the courts have repeatedly held that
the cessation of an unfair labor practice does not render a
case moot.' Moreover , as the Respondent Union's cessation
of its unlawful activities occurred during the pendency of an
injunction proceeding, its conduct is necessarily ambiguous.
It is not possible to determine whether it discontinued it
unlawful activities voluntarily or because of the injunction
proceeding . In these circumstances , the Board believes a
cease and desist order is necessary in order effectually to
prevent the recurrence of the Respondent Union's unlawful
activity.' Accordingly, the motion to dismiss the complaint
is hereby denied.
ORDER
Upon the entire record in this case , and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the
Respondent, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America , AFL, Local
No. 911, its officers , representatives , and agents , shall:
1. Cease and desist from:
Engaging in, or inducing or encouraging the employees of
Lakeview Creamery Company or any other employer to engage
in, a strike or a concerted refusal in the course of their em-
ployment to use, manufacture , process, transport , or other-
wise handle or work on any goods, articles , or commodities,
or to perform any services where an object thereof is to force
or require the partners of Lakeview Creamery Company to
join the Respondent Union.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Post at its business offices copies of the notice attached
hereto as an appendix . 4 Copies of said notice , to be furnished
by the Regional Director for the Nineteenth Region, shall,
after being duly signed by an official representative, be
posted by the Respondent Union immediately upon receipt
thereof and maintained by it for a period of sixty (60) con-
secutive days thereafter , in conspicuous places, including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent Union to
insure that said notices are not altered, defaced , or covered
by other materials.
2 Consolidated Edison Company of New York, etc. v. N. L. R. B., 305 U. S. 197, 230;
N. L. R B , v Pacific Greyhound Lines, Inc., 303 U S. 261, 271.
3Cf. International Typographical Union, 86 NLRB 951, 961, where the Board said: even
if the post- injunction conduct be found legal, it could in no event render moot any unfair
labor practice committed prior thereto, because, apart from other considerations, conduct
engaged in under an unjunction is necessarily ambiguous, it being impossible to determine
whether such conduct is voluntary or springs from the complusion of the injunction."
4In the event that this Order is enforced by 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."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 603
(b) Mail to the Regional Director for the Nineteenth Region
signed copies of the notice attached hereto as an appendix,
for posting, the Company willing, at the latter's office and
place of business in Lakeview , Oregon, in places where
notices to employees are customarily posted. Copies of
said notice, to be furnished by the Regional Director of the
Nineteenth Region, shall , after being signed by the Respondent
Union's representative, be forthwith returned to the Regional
Director for such posting.
(c) Notify the Regional Director for the Nineteenth Region
in writing within ten (10) days from the date of this Order of
the steps taken to comply herewith.
APPENDIX
NOTICE
TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, LOCAL NO. 911, AND TO ALL
EMPLOYEES OF LAKEVIEW CREAMERY COMPANY
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 notify
you that:
WE WILL NOT engage in, or induce or encourage the
employees of Lakeview Creamery Company or any other
employer to engage in, a strike or a concerted refusal
in the course of their employment to use , manufacture,
process, transport , or otherwise handle or work on any
goods, articles , or commodities , or to perform any
services where an object thereof is to force or require
the partners of Lakeview Creamery Company to join
Local No. 911 of the Teamsters Union.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF
AMERICA, AFL, LOCAL NO. 911
Dated ................ By....................................................
(Title of Officer)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by Lakeview Creamery Company, a
copartnership composed of Vern Joseph Troxell, Edward B. Sundet, Wesley L. Dollarhide,
and Roehl Watts, herein called the Company, the General Counsel of the National Labor
Relations Board, herein respectively called the General Counsel and the Board, by the Regional
Director for the Nineteenth Region (Seattle, Washington), issued his complaint on August 7,
1953,1 alleging that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, Local No. 911, herein called the Teamsters, 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 National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act.
Copies of the complaint and the charges , together with notice of hearing thereon, were
duly served upon the Teamsters and the Company.
The complaint alleged in substance that the Teamsters (1) on or about April 17, and at
various times thereafter , solicited and demanded that the copartners here involved join
and become members of the Teamsters; (2) on or about June 2, placed a picket line at and
near the Company's premises and by means of said picket line and other devices induced
and encouraged the Company's employees and the employees of other employers to engage in
strikes or concerted refusals in the course of their employment to use, process , transport,
or otherwise handle or work on any goods , articles , materials , or commodities of, or to
perform services for, the Company, an object thereof being to force or require the co-
partners of the Company to join the Teamstes; and (3) by such acts and conduct it violated
Section 8 (b) (4) (A) of the Act.
Pursuant to due notice, a hearing was held on August 24, before the undersigned, the
duly designated Trial Examiner. Each party was represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce relevant evidence was afforded all parties . At the conclusion of the taking
of the evidence, the Treamsters' counsel moved to dismiss the complaint for lack of proof.
Decision thereon was reserved. The motion is hereby denied. The parties were then advised
that they might file briefs with the undersigned on or before September 14. A brief has been
received from counsel for the Teamsters which has been carefully considered.
Upon the entire record in the case, the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS ACTIVITIES OF LAKEVIEW CREAMERY COMPANY
Lakeview Creamery Company, a copartnership, has its principal offices and place of busi-
ness in Lakeview , Oregon, where it is engaged in processing and distribution of dairy products,
soft drinks, and beer. The Company annually processes and ships from its plant products
valued in excess of $400,000, of which more than $62,000 is sold and shipped to points
located outside the Sate of Oregon.
Upon the above undisputed facts, the undersigned finds that at all times material herein
the Company was, and still is, engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, Local No. 911, is a labor organization admitting to membership employees
of the Company.
IIL THE UNFAIR LABOR PRACTICES
A. The pertinent undisputed facts
The record discloses that on April 17, 1953, representatives of the Teamsters called upon
2 partners of the Company and demanded that 3 of the 4 partners join the Teamsters; that the
lUnless otherwise noted all dates refer to 1953.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS 605
partners refused said demand; that on June 2 the Teamsters placed a picket line at the
Company's plant; that pickets carried signs identifying the Company as the-concern being
picketed; that at no time prior to June 2 did the Teamsters notify the Company that it with-
drew its demand that 3 partners join its organization; that during the course of the picketing,
a Lucky Lager Brewing Company truck, containing cargo destined for the Company approached
the picket line; that the truckdriver of the aforesaid truck did not cross the picket line nor
did he make delivery of merchandise he had for the Company, but, instead, the driver drove
the truck elsewhere; that later the same day the said truckdriver drove up to the picket
line, and because of the picket line he made no delivery of the merchandise which he had on
his truck and which was intended for the Company; that during the picketing, employees of
the Company were employed at the plant; and that under date of August 5 the Teamsters'
counsel wrote the Company's counsel stating that at no time had the Teamsters demanded
that the partners join its organization.
B. Concluding findings
As stated in the brief of the Teamsters' counsel, the question to be resolved by the issues
raised herein, is whether or not "it is a violation of [Section] 8 (b) (4) (A) for a union to
force or require an employer (in this case a partner) to join a labor organization by means
of primary picketing, or does the prohibition prohibit only secondary action for such ob-
jective? "
The pertinent portion 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 use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services where the object thereof is: (A) forcing or re-
quiring any employer or self-employed person to join any labor ... organization ....
The above-cited section cannot be successfully challenged on the ground that it is vague
and indefinite . The statute furnishes an adequate guide as to what conduct is proscribed
and it is specific as the nature of the problem permits . In short, the statute prohibits labor
organizations and their agents from engaging in strikes or inciting employees to engage
in strikes or concerted refusals to perform services provided an object of such action is
to force or require an employer or a self-employed person to join a union.
Section 8 (b) (4) (A) draws no line of distinction between primary picketing or secondary
picketing . The section , by its expressed terms , prohibits the incitation of employees by
labor organizations or their agents to engage either in a total strike or what may be termed
a partial strike in furtherance of the objectives set forth in said section . Nor does the legis-
lative history of the Act suggest that Congress intended any such distinction.
Upon the entire record in the case , the undersigned finds that by engaging in the conduct
and activities described in section III. A, above , the Teamsters violated Section 8 (b) (4) (A)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Teamsters set forth in section III, above, occurring in connection with
the operations of the Company, set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and such
of them as have been found to constitute unfair labor practices, tend to lead to labor dis-
putes burdening and obstructing commerce and the free flow of commerce.
V,. THE REMEDY
Having found that the Teamsters has violated Section 8 (b) (4) (A), it will be recommended
that it cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
337593 0 - 55 - 40
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Lakeview Creamery Company, a copartnership, is engaged in and during all times
material herein was engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, Local No. 911, is a labor organization within the meaning of Section 2 (5)
of the Act.
3. Since June 2, 1952, the Teamsters has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the Act, by engaging in and encouraging
the Company's employees and employees of other employers to engage in a concerted
refusal in the course of their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or commodities, or to perform
any services, where the object was to force or require three partners of the Company to
join the Teamsters.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication. ]
THOMAS BULEN McCORMACK, d/b/a JOHN McCORMACK
CO. and C. N. HILL and UNITED FRESH FRUIT AND
VEGETABLE WORKERS, LIU #78, CIO, Petitioner. Case
No. 20-RC-2329. December 29, 1953
DECISION AND ORDER
Upon, a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before LaFayette D.
Mathews, Jr., hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.'
Upon the entire record in this case, the Board finds:
1. Thomas Bulen McCormack, d/b/a John McCormack Co.,
herein called McCormack, owns and operates a number of
fruit ranches in the State of California. McCormack also
owns a fruit packingshed located at Walnut Grove, California,
where the fruit grown on McCormack's ranches is graded and
packed by C. N. Hill, a licensed labor contractor who operates
the packingshed under an oral contract with McCormack.
McCormack contends that the employees who work in the
packingshed are employees of Hill and not of McCormack.
McCormack pays Hill 14 cents per box of fruit packed. Hill
has sole authority to hire, discipline, and discharge the em-
ployees working in the packingshed and sets their wages
which he pays. Hill makes the required deductions for un-
employment insurance, social security, and withholding taxes.
1C. N. Hill , although served with notice of the hearing , did not appear at the hearing, but a
letter from him disputing the Petitioner ' s showing of interest was read into the record. The
Petitioner ' s showing of interest is an administrative matter and is not litigible at the hearing.
Furthermore we are administratively satisfied that the Petitioner has made an adequate
showing of interest.
107 NLRB No. 133.