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

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 972 (N.L.R.B. 1949)

In the Matter Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAIIF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 294, A. F.
OF L. and HENRY V. RABOUIN, DOING BUSINESS AS CONWAY'S ExPRESS.
In the Matter Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF -
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 294, A. F..
OF L. and MONTGOMERY WARD & CO., INCORPORATED
Cases Nos. 2-00 -14 and 2-CC-1..---Decided December 16, 1949
DECISION
AND
ORDER
On June 9, 1948, Trial Examiner C. W. Whittemore issued his.
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and.
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respondent.
had not engaged in certain other unfair labor practices, and recom-
mended that the complaints be dismissed with respect to these allega-
tions. Thereafter, the Respondent, the General Counsel, and the
charging party in Case No. 2-CC-12 filed exceptions to the Inter-
mediate Report and supporting briefs.
On May 17, 1949, the Board at Washington, D. C., heard oral argu-
ment in which the Respondent, Montgomery.Ward & Co., and the
General Counsel participated; Conway's Express did not appear.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except insofar as they, are inconsistent
with this Decision and Order.
87 NLRB No. 130.
972
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 973
Conway's Express
Case No. 2-CC-14
1. One of the basic questions in this case is whether or not at the
time of the 1947 events set forth in the complaint,.Rabouin, the charg-
ing party, herein referred to also as Conway's or Conway's Express,
and the Respondent, herein referred to also as the Union, were parties
to a 2-year collective bargaining contract made in 1946, before the
enactment of the amended Act. The Respondent contends that there
was such a contract, and that under the terms thereof it was privileged
to engage in certain of the conduct alleged in the complaint to have
constituted unfair labor practices. In particular, the Respondent
takes the position. that its strike of September 1947 was called to
enforce the closed-shop provision of the contract, not to compel Ra-
bouin to cease doing business with Atlantic within the meaning of
'Section 8 (b) (4) (A) of the Act. Similarly, the. Respondent con-
tends that its demand that Rabouin sign the contract, as a condition
of settling the strike, was not an unlawful requirement that the Em-
ployer enter into a closed-shop agreement, but merely a requirement
that Rabouin furnish evidence of the obligations which he had lawfully
assumed a year before. The General Counsel, on the other hand,
contends that there was no such contract, because Rabouin never
signed or in any other manner assented to be bound by the agreement
which the Respondent tendered to him at the close of the bargaining
negotiations in 1946; and, that even assuming that there was mutual
assent to the terms of this agreement the resulting contract was invalid
because it was only an oral contract so far as Rabouin was concerned.
The Trial. Examiner found, and we agree," that Rabouin did, in
fact, accept the 1946-48 contract, known as the "Albany area agree-
ment," which had been negotiated on his behalf by the employers'
Association. All of his conduct, detailed in the Intermediate Report,
coupled with his failure to reject theagreement when it was proffered 2
or to repudiate it during the long period when he enjoyed its benefits,3
' Member Reynolds does not concur in this finding . See his separate opinion , infra.
s The fact that Rabouin may, as he testified , have notified "the members " of the Trans-
port Association that he "refused the contract" at the meeting at which the Association
adopted the Respondent 's final proposal , does not militate against our conclusion that
his conduct following the receipt from the Respondent of a signed copy of the agreement
signified his acceptance of it. It is likewise immaterial that the Respondent may have
been aware of Rabouin 's failure to sign and return the document . It was Rabouin's
acceptance of the agreement, not his signature evidencing his acceptance, that marked
the consummation of the contract.
3 The record shows that the Respondent conducted a general strike in the Albany area
in August 1946, while its negotiations with the Association were pending, and did not
call off the strike until the successful conclusion of those negotiations . Rabouin's
employees evidently participated in this strike, and returned to work on the assumption
that Rabouin had accepted the new area contract . Rabouin must have known that if he
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manifested his assent to be bound by it.4 At least some of Rabouin's
acts and omissions during the period from October 20, 1946, to Sep-
tember 10, 1947, were completely irreconcilable with Member Rey-
nolds' theory that he simply followed the custom of the area as to
wages and working conditions. For example, it is highly improbable
that Rabouin, if he had not actually intended to bind himself to
this agreement, would have acknowledged the jwtisdiction of the joint
grievance board established under the contract. Much less would
he have undertaken to abide by the adverse decision that the contract
applied to his Atlantic operations if he had thought that he was in a
position to assert that he had no contract with the Respondent at all.
The fact that he opposed this interpretation of the contract, and vio-
lated his commitment to abide by it, scarcely proves that he did not
hold himself out as a party to the contract. We find that, during the
period with which we are concerned in this case, there was a 2-year
collective bargaining agreement in existence between Rabouin and the
rejected that contract, he would be faced with a continuation of this strike, as well as a
possible S (5) charge. It is noteworthy, too, that during the next 10 months, the
Respondent forebore calling a strike against Rabouin, despite its dissatisfaction with his
performance under the contract. Instead, it resorted to the peaceful methods of settle-
ment provided in the contract itself.
4 The fundamental legal principle, as stated by Williston (Contracts, rev. ed., 1936, Sec.
22A) is:
Though assent must be manifested in order to be legally effective, it need not be
expressed in words. In the early law of assumpsit stress was laid on'the necessity
of a promise in terms, but the modern law rightly construes both acts and words as
having the meaning which a reasonable person present would put upon them in view
of the surrounding circumstances. . . . And it may be said broadly that any
conduct of one party, from which the other may reasonably draw the inference of a
promise, is effective in law as such.
See also , op. cit., Sees. 90, 91, 98; Restatement of the Law of Contracts (1932), Sees. 5,
21, 72. Although we do not rely solely upon Rabouin's silence, upon receipt of the
Union's offer, as evidence of his acceptance, we think that the situation in this case falls
well within the rule of law which prescribes that silence amounts to assent in certain
circumstances. Williston's general statement of that rule is as follows (op. cit., supra,
Sec. 91) :
Generally speaking, an offeree need make no reply to offers, and his silence and
inaction cannot be construed as an assent to the offer ; . . . but the relations
between the parties or other circumstances may have been such as to have justified
the offeror in expecting a reply, . . . and, therefore, in assuming that silence indicates
assent to his proposal.
We do not agree with Member Reynolds' conclusion that none of the classical categories
of cases to which this rule refers is applicable by fair analogy to the labor relations
transaction before us in this case. It is significant in the appraisal of Rabouin's objective
intent, as manifested by his omissions and deeds, that he was obligated, under the Act,
to bargain in good faith with the Union and, if an understanding was reached concerning
the subjects under negotiation, to assume a contractual obligation with respect to those
matters. Although the statute also required Rabouin to 'sign a document embodying the
terms of his agreement with the Union, if the Union so requested (see Heinz. Co. V.
N. L. if. 13., 311 U. S. 514, and the codification of the rule of that case in Sec. S (d) of
the amended Act), his omission to do so does not signify that lie refused to bind himself,
even orally, to observe the terms and conditions of the contract which he had allowed the
Association to negotiate in his behalf, and had ostensibly approved, so far as the Union
knew.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 975
respondent Union, and that, under Section 102 of the 1947 amend-
ments of the Act, the closed-shop provisions of that contract remained
validly in force.
The General Counsel contends that, even assuming Rabouin did be-
come a party to an agreement with the Respondent, the agreement was
only an oral or unsigned contract, and that "Board policy in the past
has been to give no effect to unsigned or oral agreements." 5 This con-
tention rests upon a misconception of Board policy and it overlooks the
fact that the Board has given effect to oral collective bargaining agree-
ments as a defense to certain unfair labor practice charges.6 It is be-
side the point that, in representation cases, we decline to treat oral
agreements as a sufficient basis for denying or postponing the statutory
right of employees to change or discharge their bargainling represent-
atives.7 In this case, that basic statutory right of employees is not
involved; and we can perceive no justification for applying the repre-
sentation case rule without its reason. In his dissenting opinion,
5 The General Counsel also contends that, assuming that Rabouin became a party to
an oral agreement , such an agreement , as one which could not be performed within 1
year , did not satisfy the requirements of the New York Statute of Frauds ( Pers. Prop.
Law, Art. 3, Sec. 31) and, therefore, was not binding upon Rabouin. We find this con-
tention without merit . It is well established that State law is not determinative of
rights and obligations under the Act, except where the Act itself expressly provides other-
wise (Hill v. Florida, 325 U. S. 538 ; N. L. R. B. v. New Era, 118 F. 2d 500 (C. A. 3) ;
N. L. R. B. v. Blount, 131 F. 2d 585, 590 (C. A. 8) ; N. L. R. B. v. Hearst Publications,
322 U. S. 111. See also, Shoe Workers v. Le Denise Footwear, Inc., U. S. D. C. '(Mass.)
April 1949, 24 L. R. R. M. 2021, where the court rejected the contention that the Act
contemplates that, to be enforceable , all collective bargaining agreements and necessarily,
all modifications thereof, shall be in writing. Cf. Giant Food Shopping Center, Inc., 77
NLRB 791.
6 United Fruit Company, 12 NLRB 404 , where the Board upheld an oral closed-shop
agreement as a defense to the 8 (3) charge with respect to a series of discharges. See
also : Charles E. Reed & Co., 76 NLRB 548, where the Board gave effect to an oral exten-
sion of a written contract , which contained a "no strike " clause ; finding that the union
was bound by the "no strike " provision , and that the employer was under no obligation
to bargain with the union-at least concerning the grievance which caused the strike-
while the strike in violation of the orally extended contract was in progress ; and Electric
Vacuum, Inc., 18 NLRB 591, 600, 613, 625, affd. 315 U. S . 685, 691-2, reversing 120 F. 2d
611 (C. A. 6).
Heinz Co. v. N . L. R. B., 311 U . S. 514 , and numerous other cases where the Courts and
the Board held that an employer is under an obligation , if an understanding is reached,
to embody such understanding in a signed agreement , do not mean that oral agreements
are invalid under the Act.
Y Eicor Inc., 46 NLRB 1035 ; Container Corporation of America, 61 NLRB 823 ; Reed
Roller Bit Co., 72 NLRB 927 ; Horn Mfg. Co. Inc., 83 NLRB 1177. The principal basis
of the Board 's rule that an unwritten or unsigned agreement may not operate to bar a
petition under Section 9 (c) of the Act is that such agreements do not adequately stabilize
industrial relations, and therefore do not satisfy the statutory policy which underlies the
contract-bar rule itself.
In addition , the rule of the Eicor case operates as a safeguard against false proof in a
situation where the two parties to the alleged contract are likely to have a strong mutual
interest in defeating the petition, and hence be tempted to offer collusive evidence of the
existence of an oral agreement between themselves. In the present case, however, there
is no such danger of collusive evidence as to the existence of the agreement , for the
interests of the contracting parties are opposed.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aside from argument based upon precedent which we consider inap-
posite,8 Member Reynolds appears to advocate that in all cases under
the Act, in any and all circumstances, and for all purposes, so-called
oral contracts s should be regarded as null and void. Accordingly, our
dissenting colleague would find in this case that the Respondent's
otherwise lawful attempts to enforce its contract against Rabouin in
midterm were unfair labor practices, solely, because, due to Rabouin's
negligence or deceit-not the Respondent's-the contract lacked a for-
mality. We find this position incomprehensible. Even in jurisdic-
tions where the Statute of Frauds or one of its modern counterparts
has been enacted, oral contracts are merely imperfect, not wrongful or
void, and they are frequently given operative effect .for purposes of
defense or set-pff.10 We know of no legal analogy, and no reason of
statutory policy, which dictates that we should adopt a harsher rule
in this case.
2. The Trial Examiner found, and we agree, that the evidence does
not sustain the allegation of the complaint that the Union caused a
strike of Conway's Express employees . . . "an object thereof being
to force or require said employer to cease doing business with Middle
Atlantic in violation of Section 8 (b) (4) (A)."
The General Counsel contends that, although the Union made no
express demand that Conway's discontinue doing business with Atlan-
tic, that demand was inherent in its request that Conway's cease leasing
its equivalent to Atlantic without union drivers. However, the Trial
Examiner reached the conclusion, in which we concur, that Conway's
dealings with Atlantic were in the nature of common venture, under
which Conway's exercised joint control with Atlantic over the drivers
who operated Conway's trucks on the so-called Atlantic runs. As it
does not appear that Atlantic had ever objected, or would have ob-
jected, to hiring union drivers, the General Counsel's contention re-
8 See footnotes 59, 60 , and 61 of Mr . Reynolds ' dissenting opinion. There was no oral
agreement in the Iron Fireman case ; at most there was a mutual , but clearly erroneous,
understanding between the parties to a written contract as to the purport of one of its
provisions . The Rheem case involved a Board doctrine (now recently overruled by the
Suprement Court in Colgate-Palmolive -Peet Co . v. N. L. R. B., 338 U . S. 355 , Dec. 5, 1949)
which applied to all closed -shop contracts , whether written or oral. Like the rule applica-
ble in representation cases, that doctrine was concerned with the protection of employees
in the. exercise of their right to change bargaining representatives at suitable intervals.
The Resnick and Hager Hinge cases are entirely irrelevant to this discussion.
9 Of course , the contract in this case was "oral ," more exactly "parole ," only in a highly
technical sense. Save for the missing signature , it was a complete written document, duly
publicized to all interested parties at the time of its adoption , and proved by unim-
peachable documentary evidence . Even as to the fact of its acceptance by Rabouin, we
do not rely upon mere oral testimony.
10 Williston , op. cit., supra , Sees. 16, 538 . A promise within the Statute of Frauds may
also serve as consideration for an enforceable promise by another ( Ibid., Sec . 529) and
as a basis for quasi -contractual recovery ( Ibid., Sec. 534.)
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 977
mains unproven. The record, on the other hand, indicates, as the Trial
Examiner found, that the real objective of the strike was to compel
Conway's to remedy what the Union thought to be a violation of its
valid collective bargaining agreement. The Union took the position,
approved by the Highway Transport Association of which Rabouin
was a member, 11 that Conway's leasing of equipment to Atlantic with-
out union drivers was in violation of its contractual obligation to hire
only union drivers. It was in support of this position that the Union
called the strike, for an objective not prohibited by Section 8 (b)
(4) (A).
Furthermore, as we have held, Section 8 (b) (4) (A) interdicts only
secondary boycotts, not strikes in furtherance of primary disputes.12
The record in this case is barren of evidence showing that the Union's
strike against Conway's Express was in any sense secondary to a labor
dispute between Atlantic and the Respondent or any other labor
organization.
3. We adopt the Trial Examiner's finding that the Union did not
violate Section 8 (b) (1) (B) of the Act.
4. The Trial Examiner further found, and we agree, that the Union
did not demand, as a condition for settlement of the strike, that Conway
enter into a closed-shop agreement, but merely demanded that Ra-
bouin, by placing his signature to the 1946-48 agreement to which he
had been a party since October 1946, furnish evidence of his preexist-
ing lawful obligation 13 The Union, therefore, did not engage in
unfair labor practices within the meaning of either Section 8 (b) .(2)
or Section 8 (b) (1) (A) of the amended Act.14
5. We also agree with the Trial Examiner's conclusion that the
Union did not violate Section 8 (b) (6) of the Act 13 As one of the
conditions for settlement of the strike, the Union demanded that
Rabouin pay to it an amount equal to the wages earned by a nonunion
driver on the Atlantic run which had precipitated the strike. It was
the Union's position that pursuant to the closed-shop agreement,
Rabouin should have hired a union driver for this trip, and the pay-
ment was demanded for the benefit of an employed union member who
11 Rabouin himself had acquiesced in this interpretation of the contract. The issue was
submitted to the Association for settlement in January 1947, at which time its representa-
tive stated to Rabouin that lie was violating the area agreement by leasing trucks to
Atlantic without union drivers. Rabouin then declared that he would discontinue the
operation and dispose of the equipment.
12 Pure Oil Company, 84 NLRB 315.
1a See Member Reynolds ' dissent as to this issue , infra.
1a Even assuming , however , that the Union 's demand that Rabouin sign the 1946-48
agreement was in violation of Section 8 (b) (2) of the Act, such conduct would not per se
constitute restraint and coercion of employees within the meaning of Section 8 (b) (1)
(A) ; (National Maritime Union, 78 NLRB 971).
16 Member Reynolds dissents from this conclusion.
877359-50-vol. 87-63
978 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would, presumably, have received the job if Rabouin had observed the
contract's requirements as to hiring.16 This was, then, a demand made
under a color of right, in the nature of a claim for damages for breach
of contract. It was not a demand "in the nature of an exaction"
within the meaning of Section 8 (b) (6) of the Act .17
6. We agree with the Trial Examiner that, except as hereinafter
stated, the Union did not violate Section 8 (b) (3) of the Act by its
conduct and demands during the negotiations for settlement of the
strike."' We do, however, find, contrary to the Trial Examiner, that
the Union's demand for a performance bond, as a condition precedent
to settlement, was violative of Section 8 (b) (3) of the Act.19
At the September 27 conference, which was called at Rabouin's
request for the purpose of settling the strike, the Union took the posi-
tion that it would not terminate the strike unless Rabouin, among
.other things, would post a $5,000 performance bond. As Rabouin was
unable to comply with this demand, the settlement of the strike fell
through. The question is whether this demand for a bond was con-
sistent with the Union's obligation to bargain under Section 8 (b) (3) .20
We think it was not. The Board, as early as 1940, held in the Black-
burn case 21 that by demanding that a union post a performance bond,
an employer "sought to prefix the fulfillment of its statutory obligation
with a condition not within the provisions, and manifestly inconsistent
with the policy of the Act," and therefore violated Section 8 (5) of
the Act. We believe that the same rule should apply in the converse
1° It is significant that the services, for which the payment was demanded, would
actually have been performed by the union driver but for Rabouin ' s engagement of another
driver. However, we do not adopt the Trial Examiner's theory that it was.the performance
of the services by the nonunion driver that renders Section 8 (b) (6) inapplicable.
17 The legislative history of Section 8 (b) (6) shows that it was the intention of Con-
gress to prohibit in this Section a certain type of "featherbedding" practice, in the nature
of "extortion," 93 Cong. Rec. 6601 (June 5, 1947) ; 6603 (June 5, 1947) ; 7001-2 (June
12, 1947).
We take issue with Member Reynolds' assertion that this was the sort of conduct which
Congress sought to reach in Section 8 (b) (6). None of the examples given.during the
Congressional debates, as falling within the coverage of the statutory interdiction, even
remotely resemble the situation at hand.
18 Member Reynolds would find, however, that the Union's demands discussed in para-
graphs 4 and 5, above, were violative of Section 8 (b) (3).
° Member Houston dissents from this finding. See his separate opinion, infra.
The Union did not take the position that its duty to bargain was suspended because of
Rabouin's breach of the collective bargaining agreement, which caused the strike. (Cf.
Charles E. Reed & Co., 76 NLRB 548; Dorsey Trailers, Inc., 80 NLRB 478 ; United Elastic
Corp., 84 NLRB 768.) Without deciding, therefore, whether or not the Union might
have elected to refuse altogether to deal with this delinquent employer , we hold that
in this case the Union was under a duty to bargain with Rabouin in good faith, in
accordance with the standards defined in Section 8 (d) of the Act. To quote the comment
of Learned Hand, C. J., as to a converse situation, "Though the Union may have mis-
conducted itself , it has a locus poenitentiae ; if it offers in good faith to treat, the employer
may not refuse because of its past sins." (N. L. R. B. v. Remington Rand, Inc ., 94 F. 2d
862 (C . A. 2).)
21 Jasper Blackburn Corporation , 21 NLRB 1240 ; see also Scripto Manufacturing Com-
pany, 36 NLRB 411, 426-428; and compare Dalton Telephone Company, 82 NLRB 1001.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 979
situation, where the demand for a performance bond is made by a
union rather than by an employer.22 Nor do we regard as significant
the Trial Examiner's distinction that in this case the performance
bond was demanded as a condition for settlement of a strike rather
than as a condition for entering into a collective bargaining agreement.
As it is the policy of the Act to promote the settlement of labor dis-
putes through the peaceful processes of collective bargaining,23 there
is no more reason to sanction the requirement of a bond as a condition
of terminating a strike or lock-out, than to allow such a demand to
obstruct the negotiation of an ordinary labor agreement. It is true
that the Union's insistence upon a bond, in the circumstances of this
case, was not wholly unreasonable and that it was not, so far as the
record shows, designed to frustrate the settlement of the strike. How-
ever, the Union's good faith in advancing this proposal is not decisive
of the issue. It is the tendency of such proposals to "delay or impede
or otherwise to circumscribe the bargaining process," which renders
them improper.24 We conclude that by demanding this bond as a
condition of settlement of the strike, the Union violated Section 8 (b)
(3) of the Act.
7. We adopt the Trial Examiner's finding that. the Respondent did
not induce any employees of Universal, Holland's, or Cluett-Peabody
to refuse to handle freight transported by Conway's Express, and
therefore did not violate Section 8 (b) (4) (A) of the amended Act by
its conduct at these establishments. We also concur in the Trial Exam-
iner's finding, although for a different reason, that the telephone con-
versation between Business Agent Atwater and shipping clerk Rosetti,
a rank-and-file employee at Cluett-Peabody, did not constitute a viola-
tion of this section of the Act.
22 The language of the amended Act, as well as its legislative history, indicates that
Congress intended to impose upon labor organizations the same duty to bargain which
had been imposed upon employers in Section 8 (5) of the Wagner Act. Sections 8 (b)
( 3) and S (a) (5) make it an unfair labor practice for either an employer or a labor
organization " to refuse to bargain collectively" in identical language . Section 8 (d)
defines the term to bargain collectively as "the performance of the mutual obligation of
the employer and tile representative of the employees," and makes no distinction between
the statutory- obligation of employers and that of. unions. For discussion of this question,
see National Maritime Union of America, 010, supra.
20 Section 1 of the Act declares to be the "policy of the United States to eliminate the
causes of certain substantial obstructions to the free flow of commerce and to mitigate
and eliminate these obstructions when they have occurred by encouraging the practice
and procedure of collective bargaining . . . .
24 See N . L. R. B. v . Remington Rand , 94 F. 2d 862 , 873 (C . A. 2), and Inland Steel
Company, 9 NLRB 782, 802, set aside on other grounds 109 F. 2d 9 (C. A. 7), where the
Board and the Courts held that the union's alleged irresponsibility did not excuse the
employer ' s refusal to bargain with the union . In the Inland Steel case the Board refused
to entertain a plea that the union was "an unfit agency with which to enter into con-
tractual relations ." In agreeing with the Board , the Court said that "an employer is
not privileged to deny collective bargaining to his employees because he views the union
which represents them as irresponsible ." Cf. Dalton Telephone Co., 82 NLRB 1001.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At each of these places the individuals to whom the Respondent's
agents addressed a demand or request not to handle Conway's freight
were either supervisors or other representatives of the management or,
in one of the places, the owner himself.
The General Counsel contends that the exclusion of supervisors from
the term "employee" in Section 2 (3) of the Act as amended was not
intended to apply to Section 8 (b) (4) (A), for such construction
would lead to results wholly inconsistent with the purposes which Con-
gress sought to achieve by the latter provision. However, we are of the
opinion that the exclusion of supervisors from the coverage of the
amended Act was intended for all purposes. The definition of the
term "employee" in Section 2 (3) of the amended Act is clear and
unequivocal. As Section 8 (b) (4) (A) does not qualify or limit the
term "employees" in any manner, the definition in Section 2 (3) is
controlling and it excludes supervisors . (Briggs Mfg. Co., 75
NLRB 66; see also N. L. R. B. v. Budd Mfg. Co., 169 F. 2d 571
(C. A. 6), cert. den. 335 U. S. 908.) In accord with this con-
struction is the legislative history of the amended Act, which indicates
that Congress had in mind a complete exclusion of supervisors from
the coverage of the amended Act. (Sen. Rep. No. 106, p. 5, House
Cong. Rep. No. 510, p. 35; 80th Cong., 1st Sess. 1947; 83 Cong. Rec.
3262, April 23,1947.) We find that "supervisors". are not "employees"
within the meaning of Section 8 (b) (4) (A).
As the individuals approached by the Union at Universal, Holland's,
and Cluett-Peabody were not "employees" within the meaning of the
Act, and as Section 8 (b) (4) (A) prohibits inducement or encourage-
ment only of "employees," 25 the Respondent's conduct was not viola-
tive of this section.
The General Counsel argues, however, that at Holland's and at
Universal Carloading the Union also induced. rank-and-file employees
not to handle Conway goods, because such employees were present
when union representatives asked management officials to reject Con-
way freight. We do not agree. At Holland's, the only employee, a
warehouse worker, who was present when McCall talked to Holland,
was out of earshot. At Universal Carloading, the employees who
might have overheard Postma's conversation with management repre-
sentatives were office workers, who did not have occasion in the course
of their employment to handle freight which might be consigned to or
'tendered by a Conway's truck. In neither instance is there any evi-
dence to show that the Union's demand for a boycott of Conway's was
either addressed to these employees or intended to be transmitted to
25 Sealright Pacific, Ltd., 82 NLRB 271 ; International Brotherhood of Electrical Work-
ers, Local 501, AFL ( Samuel Langer ), 82 NLRB 1028.
INTERNATIONAL BROTHERHOOD OF T'E'AMSTERS, INC. 981
them in the form of an appeal or command from the Union. There
was, therefore, no "inducement" of "encouragement" of these
employees within the meaning of Section 8 (b) (4), even though they
may, as an intended consequence of the Union's approach to their
employers, have received instructions from their own supervisors not
to handle Conway's freight Zs
We also agree with the Trial Examiner that there was no induce-
ment of Cluett-Peabody's clerk, Rosetti, within the meaning of Sec-
tion 8 (b) (4) (A). The union agent, Atwater, did not address
Rosetti as an employee who would have occasion in the course of
his employment to handle-or refuse to handle-goods from a Conway
truck. Rosetti was simply the office clerk who answered the telephone
when Atwater called Foreman Felock. Atwater gave Rosetti a mes-
sage for Felock and, in the latter's absence, asked Rosetti to do cer-
tain things in the foreman's behalf. It is because Rosetti was ad-
dressed as a representative of management, rather than because the
Conway driver ignored the Union's message which Rosetti delivered,
that we find no violation of Section 8 (b) (4) (A) in this episode.
8. The Trial Examiner found, and we agree, that at Cantral Ware-
house, Oppenheimer and McEwan, and Palmer Lines the Respondent
did not violate Section 8 (b) (4) (A) of the amended Act.27
Each of these employers was a party to an area agreement with the
Respondent, entered into before the effective date of the amended
Act, which reserved to the Respondent the right to refuse to handle
goods or freight of any employer involved in a labor dispute.28 In
reliance on this contractual provision, Respondent's shop stewards at
each of the three establishments ceased handling Conway's freight
upon being advised by the Respondent's office that the Conway strike
'was "on." And each of the employers, apparently mindful of its
contractural obligation, acquiesced in its employees' refusal to handle
the "hot" cargo.
26 See Sealright Pacific, Ltd., supra. The General Counsel relies upon Smith Cabinet
Mfg. Co ., Inc., 81 NLRB 886, where the Board found that certain assaults upon , and physi-
cal coercion of, supervisors seeking to enter a struck plant , in the presence of employees,
operated as an unlawful restraint upon the employees within the meaning of Section 8 (b)
(1) (A), because this conduct demonstrated to employees themselves what might befall
them if they attempted to work during the strike . However , in this case , even if the union
agent's cryptic remarks to supervisors at Universal Carloading and Holland 's respectively,
be construed as conveying a threat of some sort, it was not in either instance a threat of
reprisal against the employees who were present.
27 For the reasons set forth in his separate opinion, Member Reynolds would find that
the Union's conduct at Central Warehouse and Oppenheimer and McEwan was violative
of Section 8 (b) (4) (A).
. 18 The area warehouse agreement reserved to the Union "the right to refuse to handle
goods from any firm which is engaged in any controversy with this or any other Union."
The area trucking agreement reserved to the Union "the right to refuse to accept the freight
from, or to make pick -ups from or deliveries to establishments where picket lines , strikes,
walk -outs and lock-outs exist."
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is evident from these facts that the three secondary employers,
in effect, consented in advance to boycott Conway's. As they con-
sented, their employees' failure to deliver freight to or accept freight
from Conway trucks was not in the literal sense a "strike" or "re-
fusal" to work '29 nor was any such concerted insubordination contem-
plated by the Respondent when it caused the employees to exercise
their contractual privilege. In the circumstances, Section 8 (b) (4)
(A) cannot apply, unless we accept the General Counsel's argument
that the "hot cargo" contracts were repugnant to the policy of the
amended Act and therefore invalid after the effective date of the
1947 amendments. But we find no merit in this argument. Section
8 (b) (4) (A) of the Act prohibits labor organizations from "forcing
or requiring" the participation of neutral employers in secondary boy-
cotts 30 by the use of certain forms of employee pressure, namely, strikes
or work stoppages (either actually engaged in, or "induced" or "en-
couraged" by the union). This section does not proscribe other means
by which unions may induce employers to aid them in effectuating
secondary boycotts; much less does it prohibit employers from refusing
to deal with other persons, whether because they desire to assist a
labor organization in the protection of its working standards, or for
any other reason.31 An employer remains free, under that section
of the. amended Act, as always, to deal with whatever firms, union
or nonunion, he chooses. And by the same token, there is nothing in
the express provisions or underlying policy of Section 8 (b) (4) (A)
which prohibits an employer and a union from voluntarily including
"hot cargo" or "struck work" provisions in their collective bargaining
29 Section 8 (b) (4) (A) proscribes engagement in, or inducement of employees to engage
in, "a strike or a concerted refusal in the course of their employment to use" etc. ". . .
where an object thereof is : (A) forcing or requiring any employer . . . to cease doing
business with any other person." See Columbia Pictures Corporation, 82 NLRB 568, where
the Board defined "strikers" as employees engaged "in a concerted refusal to work."
ao Sec 93 Cong. Rec. 4323 (April 29, 1947), where Senator Taft said of this section :
This provision makes it unlawful to resort to a secondary boycott to injure the
business of a third person who is wholly unconcerned in the disagreement between the
employer and his employees . . . [Emphasis added.]
Describing such activities as "sympathy strike," "illegal boycott," and "jurisdictional
strike," which Section 12 (a) (3) of the House bill was designed to prevent, the House
Report stated (House Report No. 245 on H. R. 3020, 80th Congress, 1st Session, p. 23) :
The activities that these three terms describe have in common the characteristic
that they do not arise out of any dispute between an employer and employees who
engage in the activities, or, in most cases, between the employer and any of his
employees. More often than not the employers are powerless to comply with demands
giving rise to the activities, and many times they and their employees as well are the
helpless victims of quarrels that do not concern them at all . . . [Emphasis added.]
31 Herein, we think, lies the fallacy of Member Reynolds' dissent as to this issue. Grant-
ing, as a general proposition, that "Unions or employers cannot nullify the provisions of
the Act which circumscribe their activities" (see Mr. Reynolds' dissenting opinion, infra),
we find nothing in See. 8 (b) (4) (A) which "circumscribes" the employer-union coopera-
tion which was contemplated by the contracts in question.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 983
contracts, or from honoring these provision S.32 That is all that hap-
pened in this case. We therefore find that the Respondent did not
violate Section 8 (b) (4) (A) of the Act by causing employees of
Palmer Lines, Central Warehouse, and Oppenheimer & McEwan
to exercise their contractual privilege of declining to handle Conway
freight.33
9. We agree with the Trial Examiner that the following statements
of the Respondent's agents, as more particularly described in the In-
termediate Report, did not constitute restraint or coercion within
the meaning of Section 8 (b) (1) of the amended Act: (a) Postma's
warning to strikebreaker Pochman that he would never work in Al-
bany again; (b) Ray's statement to strikebreaker Conkins, "You bet-
ter send in your book"; and (c) Postma's warning to Conkins, "Well,
you'll lose your book."
We adopt the Trial Examiner's finding that these statements to
employees Pochman and Conkins, both of whom were members of the
respondent Union, were only warnings that they might lose their mem-
bership because of their strikebreaking activities and, in one instance,
a reminder of the consequences entailed in such loss of membership '34
and that, as the Respondent was privileged under the proviso to Sec
tion 8 (b) (1) to expel them for that reason, it was privileged to
threaten tb do so.35
31 In view of this determination we do not subscribe to the Trial Examiner's conclusion
that the savings provision of the amended Act, Section 102, applies to the "hot cargo"
contracts. Nor do we reach the question, also discussed by the Trial Examiner, whether-the
boycott at these three establishments was not immune under the proviso to Section 8
(b) (4).
33 Chairman Herzog concurs in this ultimate finding, but would not and the contracts at
Central Warehouse, Oppenheimer & McEwan and Palmer Lines to be a defense to the
allegations of the complaint that the Respondent induced and encouraged employees of
those employers to refuse to handle freight transported by Rabouin. The contracts merely
provided that employees would not be penalized by their employer for refusing to handle
struck work. The employer did not agree not to ask the employees to handle such work.
Chairman Herzog does not believe that such a contract licensed the respondent Union
itself to take action to induce and encourage employees of those employers to refuse to
handle Rabouin ' s deliveries.
34 The General Counsel contends that Postma's statement to Pochman was, in fact, a
threat of loss of employment and, as such, went far beyond any power to prescribe rules
for the acquisition and retention of membership under the proviso to Section 8 (b) (1),
in view of the limitations imposed upon such power by Section 8 (b) (2). However, we
do not construe the statement as a threat that the Union, in violation of Section 8 (b) (2),
would attempt to cause Pochman's potential employers to discriminate against him.
Rather, we adopt the Trial Examiner's finding that this statement meant that Pochman
would never get a job through the Union in Albany, where the Union already had valid
closed-shop "area" contracts in force, in view of his violation of the Union's rules.
35 Board Members Reynolds, Murdock, and Gray consider these incidents distinguishable
from similar incidents, which they found violative of Section 8 (b) (1) (A) in the Smith
Cabinet case, supra, and the Seamprufe, Inc., case, 82 NLRB 892, which followed it. In
those cases, the employees to whom a union agent addressed a threat of loss of employment
"when" the union should succeed in its organizational drive, were not members of the
union. In this case, the persons addressed were members of the respondent, engaged in
conduct which they knew was reprehensible to their union . In the circumstances, the
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not, however, agree with the Trial Examiner that Union
Secretary McCall's statement to Driver Zuller that "[he did] not want
to catch [Zeller] around town in Conway's trucks making pick-ups or
deliveries" and his conduct in following Zuiler's truck were not in
violation of Section 8 (b) (1) (A). Unlike the Trial Examiner, we
believe that this conduct constituted an implied threat of physical
violence, calculated to restrain or coerce Zuller in the exercise of his
right to refrain from engaging in the Conway's strike.36 We find that
by the aforesaid action of Secretary McCall, the Union violated
Section 8 (b) (1) (A) of the Act.37
Montgomery Ward, Case No. 2-CC-12
The complaint alleges that the Union violated Section 8 (b) (4)
(A) of the amended Act in that it engaged in and induced employees
of Motor Leasing and various other truckers servicing Ward to engage
in a concerted refusal to service Ward, the objects of such inducement
being : (1) to force or require Ward to cease doing business with
truckers not employing members of the Union, and (2) to force Motor
Leasing and other truckers to cease doing business with Ward.
As to the first of these allegations, the Trial Examiner found, and
we agree, that the evidence fails to show that an object of the,Respond-
ent's activity was to force Ward to cease doing business with non-
Union truckers. The Trial Examiner found, however, that the Re-
spondent did violate Section 8 (b) (4) (A) of the Act by inducing
employees of Motor Leasing and other carriers to refuse to service
Ward for the object of requiring said truckers to cease doing business
with Ward. For the reasons set forth below, we are constrained to
reject this finding, and shall therefore dismiss the complaint in this
case in its entirety.38
The respondent Union's conduct here in issue consisted of its busi-
ness agents' action in (1) patrolling at the trucking entrance to Ward's
premises on October 15, 1947, ordering truck drivers who were mem-
bers of the Union not to make any pick-ups or deliveries at Ward's;
and (2) on October 15, 16, and 17, ordering the employees of Motor
Leasing, who were members of the Union and represented by it for
remarks to them were reasonably calculated to convey only a threat or warning that the
union might expel them from its membership, as it was privileged to do.
Chairman Herzog and Member Houston, who dissented in the two earlier cases, do not
believe that violations of Sec. 8 (b) (1) (A) should be found here any more than in the
precedents now sought to be distinguished.
36 Sunset Line and Twine Company, 79 NLRB 1487 ; Smith Cabinet Manufacturing Co.,
supra.
37 Member Houston dissents from this finding . See his separate opinion , infra.
39 Nor the reasons stated in his separate opinion, below , Member Gray dissents from
this finding and order.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 985
collective bargaining purposes, not to drive any truck to Ward's
premises.
As the Trial Examiner found, the sole factor which precipitated
the controversy between the Union and Ward was Ward's demand that
the Union's business agents produce passes permitting them to visit
its shipping dock. And the sole object, both of the business agents'
gate patrol on October 15, and of the work stoppage of Motor Leasing
employees on the next 2 days,3° was to bring about a solution, satis-
factory to the Union, of this issue as to the requirement of passes. In
a word, the Union was engaged in a dispute with Ward as to a condi-
tion of employment of its members who were employed by Motor Leas-
ing and other truckers servicing Ward, namely, the conditions under
which the union officials would be allowed to visit a working place of
the employees whom they represented. This was a "labor dispute"
between the Union as the representative of the Motor Leasing employ-
ees, and Ward, within the meaning of Section 2 (9) of the Act .41' The
interest in the dispute of the Motor Leasing employees, whose work
took them regularly to Ward's shipping dock, was no less immediate
and direct than their interest in other aspects of the working condi-
tions at that place-conditions physically hazardous to truck drivers,
for example .41 Furthermore, no other group of employees had any
interest in this controversy, nor was there any other labor dispute in
existence at the time between Ward's and any other union or group
of employees. The employees who effectuated this boycott, at the
Union's direction, were not seeking, by direct or indirect pressure,
either on Ward or their own employers, to achieve any objective for the
50 The Motor Leasing employees refused only to take their trucks "out" to ward ; the
record does not show whether or not there was any other work for them . They were dis-
charged for refusing to service ward, but were rehired immediately upon settlement of
the dispute.
40 Section 2 (9) reads as follows :
"The term ` labor dispute' includes any controversy concerning terms, tenure or condi-
tions of employment , or concerning the association or representation of persons in nego-
tiating, fixing , maintaining , changing , or seeking to arrange terms or conditions of employ-
ment, regardless of whether the disputes stand in the proximate relations of employer
and employee."
41 In finding , we think erroneously , that no labor dispute existed until the union drivers
refused to enter ward 's premises , the Trial Examiner was evidently influenced by the
apparent triviality of the reasons which motivated the Respondent's agents to institute
the boycott. But, whatever their personal reasons may have been, Postma and McCall
unquestionably acted in their official and representative capacity in making an issue of
the demand for passes , and calling on the Union ' s members for support . As the con-
troversy was one "concerning . . . conditions of employment , or concerning the associa-
tion or representation of persons in . . . changing , or seeking to arrange terms or condi-
tions of employment . ", Section 2 ( 9) applies. The gravity of triviality of the Union's
cause is immaterial ; so, too, is the absence of the proximate relation of employer and
employee between ward and the employees involved in this dispute . See the full text
of Section 2 (9), quoted in footnote 40 above.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefit of any employees other than themselves. Their action was in
no sense sympathetic."
For these reasons alone, regardless of any other considerations
which may also be pertinent, we find that the Union's conduct in this
case was not within the interdiction of Section 8 (b) (4) (A), for
that conduct was not a secondary boycott.' The only object, both of
the picketing on October 15, and the work stoppage at Motor Leasing,
was to force Ward, which occupied the position of the "primary em-
ployer" in this labor dispute, to adjust the grievance which was the
point at issue in the dispute. And the only means employed by the
Union to achieve this object was to order or request the very em-
ployees in whose behalf it was waging the primary dispute to stay
away from the premises of Ward, the primary employer. It is im-
material that an incidental effect of the employees' refusal to enter
Ward's premises was to interrupt business relationships between Ward
and their own employer,44 for Section 8 (b) (4) (A) does not proscribe
the achievement of such incidental effects by primary picketing and
other primary forms of concerted activity which labor unions may
utilize to enforce their demands.45
THE REMEDY
Having found in Case No. 2-CC-14 that the Respondent engaged
in unfair labor practices in violation of Section 8 (b) (1) (A) of the
Act, we shall order the Respondent to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
It has also been found in Case No. 2-CC-14 that the Respondent,
in violation of Section 8 (b) (3) of the Act, refused to bargain with
Conway's Express by requiring as a condition to settlement of the
strike the execution of a performance bond. Accordingly, we shall
order the Respondent, as the exclusive representative of all employees
in the appropriate unit, upon request, to bargain collectively with
Conway's Express, as required by Section 8 (b) (3) of the Act with-
42 In his dissenting opinion , Member Gray apparently challenges our conclusion that
this controversy was a "labor dispute," within the meaning of Sec. 2 (9) of the Act. But
he does not deny that the dispute was primary as between the Respondent and Ward. His
conclusion that the Respondent's refusal to service ward was, nevertheless, a secondary
boycott proscribed by Section 8 (b) (4) (A) therefore seems to us a non-sequitur.
43 See Pure Oil Company, 84 NLRB 315, where we construed Section 8 (b) (4) (A),
in the light of its legislative history, as proscribing secondary, not primary, action by labor
organizations.
44 The record shows that by one means or another the Union caused its members in the
employ of several other truckers in addition to Motor Leasing, to stay away from ward's
until the dispute was settled.
4a Pure Oil Company, supra . See also Ryan Construction Corporation, 85 NLRB 417.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 987
out requiring Conway's Express to post any bond or to comply with
any similar requirements.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 294, A. F. of L., its officers, representatives, and
agents, shall:
1. Cease and desist from :
(a) Restraining or coercing employees of Henry V. Rabouin, doing
business as Conway's Express, in the exercise of their right to refrain
from any or all concerted activity as guaranteed by Section 7 of the
Act ;
(b) Requiring Conway's Express to post a bond or to comply with
any similar conditions, or otherwise refusing to bargain with Con-
way's Express, so long as it is the exclusive representative of the
employees in the appropriate unit, with respect to wages, hours, and
other terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder.
2. Take the following affirmative action in order to effectuate the
policies of the Act, as amended:
(a) Upon request, bargain collectively with Conway's Express, so
long as the Respondent is the exclusive representative of the employees
in the appropriate unit, with respect to wages, hours, and other terms
and conditions of employment, and if understanding is reached on
such matters, embody such understanding in a signed agreement with
the employer, without requiring the employer to post any bond or to
comply with any similar conditions;
'(b) Post in conspicuous places in the business office of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 294, A. F. of L., Albany, New York, copies of the
notice attached hereto as an Appendix 46 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent, be posted by the Respond-
ent immediately upon receipt thereof and maintained for a period
of sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to members are customarily posted.
ns In the event that this Order is enforced by decree of a Court of Appeals, there shall
be inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF
THE UNITED STATES COURT OF APPEALS ENFORCING."
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(c) Mail. to the Regional Director for the Second Region signed
copies of the notice, attached hereto as an Appendix, for posting, the
company willing, on the bulletin board of Conway's Express, where
notices to employees are customarily posted, where such notice shall
be posted and maintained for a period of sixty (60) days thereafter.
Copies of the notice, to be furnished by the Regional Director for
the Second Region, shall, after being signed by representatives of the
Respondent, be forthwith returned to the Regional Director for said
posting ;
.
(d) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 2-CC-14
insofar as it alleged that the Respondent violated the Act by conduct
other than that found to be violative of Sections 8 (b) (1) (A) and
8 (b) (3) in this Decision and Order, be, and it hereby is, discussed;
and that:
The complaint in Case No. 2-CC-12 be, and it hereby is, dismissed
in its entirety.
MEMBER REYNOLDS, concurring in part and dissenting in part:
In Case No. 2-CC-14, the Respondent offers an alleged closed-shop
contract with Rabouin as a defense against allegations of violations
of Section 8 (b) (2), (3), and (6). I find this defense to be without
merit. In my opinion, the evidence does not support the contention
that a closed-shop contract was in existence between the Respondent
and Rabouin in September 1947, the crucial period in question. More-
over, even assuming the existence of such a contract, I do not believe
that the Board should give it effect, because the contract was at most
an oral contract.
The facts asserted to establish the existence of a closed-shop con-
tract are set forth in the Intermediate Report attached hereto. I find
nothing there which, as a matter of law, establishes the existence of
a valid binding contract. The Transport Association, as Rabouin's
agent, was to conduct collective bargaining negotiations in his behalf
with the Respondent. The Transport Association's authority ended
there. It had no authority to bind Rabouin to a collective bargaining
contract. Thus, before the fruits of the Transport Association's nego-
tiations became binding upon Rabouin, the latter had to accept them.
This the Respondent unquestionably realized and the results of the
negotiations were reduced to writing and sent to Rabouin for approval
and acceptance on October 20, 1946. Rabouin did not at that or any
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 989'
other time, either by affirmative oral or written action, accept the offer.
In fact, he failed to acknowledge receipt of the offer.
Rabouin's failure either to accept a closed-shop contract in October
1946 or to notify the Respondent that he was not signing a contract
cannot legally, in the circumstances of this case, give rise to an infer-
ence that Rabouin was thereafter a party to a closed-shop contract
with the Respondent. If any inference is to be drawn from these cir-
cumstances it must be that Rabouin did not intend at that time to
execute such a contract.
Neither the Trial Examiner nor the majority of this Board rely upon
Board or court precedent in support of their holding that Rabouin
did accept or adopt the contract. The rule covering silence and inac-
tion by an offeree in "Williston on Contracts," which is cited by the
majority, does not support the conclusion that Rabouin gave his assent
to the Respondent's offer. When the rule is read in its context of the
illustrative cases given by Williston, it is clear that the silence of an
offeree maybe construed as assent only in four instances." The facts of
this case do not fall within any of the four variations of the rule, for as
of October 20, the date on which Rabouin received the Respondent's,
offer : (1) Rabouin did not accept services which were offered with the
expectation of compensation by the Respondent; (2) the Respondent
did not state that assent may be manifested by silence on the part of
Rabouin; (3) Rabouin did not give the Respondent reason to under-
stand that silence was intended to manifest assent; 48 or (4) Rabouin
did not take possession of property offered to him by the Respondent.
47 Willis ton on Contracts 91, A-D (revised edition, 1936). The rule from the "Rest.ate-
meet" of the law of contracts, which is essentially the same as the rule in " \villiston on
Contracts," is as follows
(1) Where an offeree fails to reply to an offer, his silence and inaction operate as an
acceptance in the following cases and in no others :
(a) Where the offeree with reasonable opportunity to reject offered services takes
the benefit of them under circumstances which would indicate to a reasonable man
that they were offered with the expectation of compensation.
(b) Where the offeror has stated or given the offeree reason to understand that
assent may be manifested by silence or inaction, and the offeree in remaining silent and
inactive intends to accept the offer. .
(c) Where because of previous dealing or otherwise, the offered has given the offeror
reason to understand that the silence or inaction is intended by the offeree as a
manifestation of assent , and the offeror does so understand.
(2) Where the offeree exercises dominion over things which are offered to him,
such exercise of dominion in the absence of other circumstances showing a contrary
intention is an acceptance. If circumstances indicate that the exercise of dominion
is tortious the offeror may at his option treat it as an acceptance, though the offeree
manifests an intention not to accept . [ Restatement, Contracts 72 (1932)] See
also 17 C. J. S. Contracts 41 (1939).
48I see no significance, as the majority does, in the fact that Rabouin was under a duty
to bargain with the Respondent. The duty to bargain does not carry with it a duty to
agree on a contract . The record before us is, in my opinion , devoid of evidence that an
agreement between these parties was reached . The majority ' s conclusion that Rabouin
accepted the contract submitted to him because he was under a duty to bargain with
Respondent is, therefore , a non -sequitur without foundation in either law or fact.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, I do not believe that Rabouin's conduct after October
20 supports a finding that Rabouin by his silence on that date
assented to the offered contract. The majority has found, and I
agree, that Rabouin was engaged in a joint enterprise with Atlantic in
addition to his Conway venture. Rabouin's alleged contract with the
Respondent therefore, following the majority's reasoning, covered
both of these operations. However, despite the alleged existence of
the closed-shop contract between Rabouin and the respondent Union,
the record contains evidence that from October 11, 1946, at least to
September 10, 1947, Rabouin hired both union and nonunion drivers
for the operation of his enterprises. It is clear that Rabouin did not
consider the contract applicable to him or his operations in this respect
at any time during its existence. In view of this fact it is difficult
to visualize how the majority can find that Rabouin by the totality of
his actions, including those after October 20, adopted the contract
offered to him on October 20, 1946. The record is also devoid of
evidence that the other substantive terms of the agreement were
applied to Rabouin's entire enterprise to which the majority has held
the contract applicable. The adoption of the working conditions set
forth in the contract in the Conway enterprise is certainly not indica-
tive of acceptance of the contract in a time when wages and working
conditions tend largely to standardize on the bases set by the major
contracting parties in an area. Nor is Rabouin's submission to the
Joint Grievance Board significant in my opinion. The issue then
existing between him and the Union was not presented to the
Grievance Board by Rabouin, but by the Union. The utilization of
the good offices of the Grievance Board for settlement of the dispute
in these circumstances is not persuasive evidence that Rabouin was
a party to the contract.
In view of my opinion that Rabouin was not a party to a closed-
shop contract with the Respondent in September 1947, I would find
that the Respondent, by demanding that Rabouin sign a closed-shop
contract on September 27, 1947, as a condition precedent to settling
the strike, violated Section 8 (b) (2) and (3) of the Act. There is
little doubt that the Respondent's insistence upon the inclusion of a
closed-shop provision in the contract which it sought to execute with
Rabouin in September 1947 constituted an "attempt to cause" Rabouin
to discriminate against employees within the meaning of Section
8 (b) (2).49 Similarly, for the reasons appearing in the National
Maritime Union case, supra, it is clear that the Respondent, by insist-
49 National Maritime Union of America, et al. (The Texas Company, et al.), 78 NLRB
971, enforced 175 F. 2d 686 (C. A. 2) ; and United Mine Workers of America, et al. (Jones &
Laughlin Steel Corporation, et al.), 83 NLRB 916.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 991
ing upon the inclusion of the illegal closed-shop provision in any con-
tract to be signed with Rabouin, refused to bargain in violation of
Section 8 (b) (3).
Furthermore, in view of my conclusion that no contract existed
between Rabouin and the Respondent, I would also find that the
Respondent violated Section 8 (b) (3) and (6) of the Act by its
demand that Rabouin pay to it an amount equal to the wages earned
by a nonunion driver on the Atlantic run of September 10, 1947, as
a condition precedent to execution of a collective bargaining contract
and to the settlement of the strike. The record shows that the Re-
spondent sought this money for payment to a member of the respond-
ent union, as wages for the completed Atlantic run. No union
member, however, made the Atlantic run. It is thus clear that the
money was sought for "services which are not performed or not to
be performed," 50 by any member of the Union. Moreover, it is like-
wise clear that the individual union member who was to receive the
money would have furnished no consideration whatsoever for the
money and that the entire compensation would represent payment
for nonproductive time. As pointed out in the International Typo-
graphical Union case,51 it was just this sort of conduct which Congress
sought to reach in Section 8 (b) (6).52 As the Respondent's insistence
upon the payment of this money in my opinion amounted to an
"attempt to cause" its payment within the meaning of the Act,53 the
Respondent's conduct in seeking the exaction was violative of Section
8 (b) (6) of the Act. It follows, therefore, that the Respondent was
insisting upon the performance of a second illegal act as a condition
precedent to entering into any collective bargaining agreement with
Rabouin. Thus, just as the insistence upon the inclusion of an alleged
closed-shop provision in the proposed contract constituted a refusal
to bargain on the part of the Respondent, so does the Respondent's
conduct with respect to the ' exaction likewise constitute a refusal to
bargain in violation of Section 8 (b) (3) of the Act.54
I would reach the same conclusion with respect to these allegations
of violations of Section 8 (b) (2), (3), and (6) even if I were to assume
that Rabouin was a party to a contract with the Respondent, for the
contract was, at best, an oral contract which should not be given effect
51 Section 8 (b) (6) reads, "It shall be an unfair labor practice for a labor organization
or its agents to cause or attempt to cause an employer to pay or deliver or agree to pay or
deliver any money or other thing of value, in the nature of an exaction, for services which
are not performed or not to be performed.
51 Case No. 9-CB-5, 87 NLRB 1109.
as As the legislative history in support of this conclusion is exhaustively covered in the
International Typographical Union case, it is not necessary to burden this opinion with a
repetitive. recitation of that history.
51 See cases cited in footnote 49, supra.
54 National Maritime Union of America, et at. (The Texas company, et al.), supra.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by this Board. In the Eicor case the Board stated : "Experience has
indicated that true stability of labor relations is not attained until
collective agreements have been. reduced to writing-and signed. The
crucial importance of the signing of agreements in the history of the
collective bargaining process was recognized by the Supreme Court
in the Heinz case. In the light of this history, the signing of col-
lective agreements'cannot be regarded as a mere formality." 55 In the
Heinz case,-"- the Supreme Court in finding that the refusal to sign a
written agreement was a failure to bargain in violation of the Act,
stated that the "refusal to sign a written contract has been a not in-
frequent means of frustrating the bargaining process through the
refusal to recognize the labor organization as a party to it and the
refusal to provide an authentic record of its terms which could be
exhibited to employees, as evidence of the good faith of the employer.
Such refusals have proved fruitful sources of dissatisfaction and dis-
agreement." The decision of the Board in the Eicor case not to give
effect to an oral contract has, in the interest of promoting stability,57
been rigidly and uniformly followed in hundreds of representation
cases to this date. Similarly the Board has consistently applied the
rule of the Heinz case in the appropriate refusal to bargain cases.58
These cases I believe are administratively sound for it is my conviction
that in the administration of the Act, it is the duty of this Board to
avoid perpetuating contract relationships which constitute unsound
industrial practice. Thus in the present case, the Board by putting its
imprimature on the oral contract between Rabouin and the Respondent
is not only remiss in its duty to promote stability,-but it is.also dis-
couraging rather than "encouraging the practice and procedure of
collective bargaining." 59
The Board nevertheless refuses to apply the rule of the Eicor case to
the present complaint case stating that "it is beside the point" that
we decline to give effect to oral contracts in representation cases. In
considering the effect of oral contracts in proceedings before this
Board a distinction is therefore made between representation and com-
6F Eicor, Inc., 46 NLRB 1035, 1037.
6e H. J . Heinz Company v . N. L. R. B ., 311 U . S. 514 , at 523. The Court 's decision in the
Heinz case has been characterized as necessary "to effectuate the general policy of the
Act." 54 I7arv. L. Rev. 886 (1941).
67 See Section 1 of the Act. See also Reed Roller Bit Company , 72 NLRB 927; General
Box Company, 82 NLRB 678- ; and Century Oxford Manufacturing Corporation , 47 NLRB
835.
69 In one of the earliest cases on the subject the Board stated : "The final attainment of
an understanding and the signing of the contract embodying the fruits of this understand-
ing are part and parcel of the process of collective bargaining . The contract or agreement
is part of and the culmination of the successful negotiations , and not a segment separate
from the negotiations which have preceded it." Louisville Refining Company, 4 NLRB
844, 860.
59 Section 1 of the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 993
plaint cases, and a dual standard of decisional law is created. This I
consider unfortunate, for in my opinion this Board should strive to
harmonize the rules of decisions in representation and complaint cases
so as to provide an orderly body of law governing labor relations.
I find this sound administrative objective well worthy of attainment
and more than counterbalancing any reasons asserted for the applica-
tion of a dual standard of decisional law.
Moreover, some rather recent complaint cases indicate that a single
standard of decisional law as to oral contracts has been in the process
of development.- In the Rheem 31anufacturing Company case, 61
an orally extended closed-shop contract was asserted as a defense to
allegations that the Employer had discriminatorily discharged several
employees for dual-unionism. The Board, noting that the same orally
extended agreement had been asserted as a bar to a determination of
representatives in a prior representation proceeding, stated :
In that proceeding, we found that the extension agreement,
which is now asserted in the instant case as a defense to the dis-
charge of the complainants was not a bar to an immediate de-
termination of representatives because of its oral nature and in-
definite duration. It therefore follows, and we find, that the
respondent's employees were privileged at all times during the
life of said agreement to select a new bargaining representative.
Under the principle established in the Rutland Court case, the
rival union activity of . . . [these employees] was protected
against the operation of the closed-shop agreement.
Thus the Board applied a uniform rule in both the representation and
complaint cases with respect to the orally extended contract.62 In the
Iron Fireman Manufacturing Company case,63 involving alleged dis-
criminatory discharges, the Board emphasized the importance of re-
ducing the collective agreement to writing, stating, "In view of the
stringent requirements of closed-shop provisions, it is not too much
to require that parties thereto express the essentials of such provisions
in unmistakable language." Both the Rheem and-Iron Fireman cases
give doubtful validity to the earlier United Fruit and Electric Vacuum
60 In instances where the Act itself emphasizes the interdependence of representation
and complaint cases [see Sections 8 (a) (3) and (5), 8 (b) (3 ), 8 (b) (4) (B), (C) and
(D). 8 (d), 9 ( e) (2), and 9 ( f), (g) and ( h)], the Board has in its decisions carefully
and deliberately accommodated various of the representation subsections of Section 9 with
unfair labor practice subsections of Section S. (See for example, General Box Company,
supra ; and Advance Pattern Company, 80 NLRB 29.
61 70 NLRB 57.
62 See also Julius Resnick, Inc., 86 NLRB 38, where the Board extended the rule of the
Hager case (80 NLRB 163), i. e., an illegal closed-shop provision removes a contract as a
bar to an election in a representation case, to complaint cases, making such a ptovi "siou a.
violation of Section 8 (a) (2) of the Act.
63 69 NLRB 19.
877359-50-vol. 87-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases 64 as precedent for giving effect to the oral contract in this cases5
As a matter of fact I view the Board's decision in this case as an
untimely retreat from the doctrine established in the Rheem and Iron
Fireman cases, since this decision now places what is at best an oral
agreement in the position of a defense to violations of closed-shop pro-
visions even more stringent than those which were in the Act when we
issued the decisions in the Rheem and Iron Fireman cases 66
In addition to offering its alleged contract with Rabouin as a defense
to the 8 (b) (2), (3), and (6) allegations in the complaint, the
Respondent offers written signed agreements with Central Warehouse,
Oppenheimer and McEwan, and Palmer Lines as a defense to the 8
(b) (4), (A) allegations of the complaint that it had unlawfully in-
duced the employees of these three employers to refuse to handle
freight transported by Rabouin. Like the majority of the Board, but
without reliance upon the contract between the Respondent and
Palmer Lines, I would dismiss the complaint as to Palmer Lines, as
there is no evidence of unlawful inducement in this respect by the
Respondent.
The evidence is otherwise with respect to Central Warehouse and
Oppenheimer and McEwan. These two employees regularly did
business with Rabouin. However, during the course of the strike of
Rabouin's employees, on the occasions detailed in the Intermediate
Report, these employers ceased doing business with Rabouin. The
circumstances under which this occurred were substantially the same
in the case of both employers. The Respondent was the collective
bargaining representative of the employees employed by these em-
ployers. Among the employees of each employer was a shop-steward
for the Respondent. When a Rabouin truck called at either of the
employer's premises, the shop-steward phoned the Respondent to
Ba See footnote 6 of the majority opinion.
65 In the Reed case ( footnote 6 of the majority opinion ), the Board gave effect to an
orally extended agreement . I consider my participation in that decision erroneous in
view of the clear import of the earlier Rheem and Iron Fireman cases , and would not now
under similar circumstances advocate giving effect to such an orally extended agreement.
60 In Geo. B. Limbert & Co., 51 NLRB 591 , at 593 , the Board stated , "The established
policy of the Board has been to favor the reduction to a properly executed instrument in
writing of all matters of contractual relationship, as furthering the stability of labor
relations."
Authority exists for the view that the Act requires that collective bargaining agreements
to be valid , be in writing . In Cox v. Gatliff Coal Co., 59 F . Supp. 882 at 886, the District
Court observed that "the National Labor Relations Act, in the public interest, has given
[written] collective bargaining agreements a more secure and stable position in our
National economy than that of ordinary common law contracts which may be altered at
pleasure." Thus, the Court ruled that "It appears that the National Labor Relations Act
clearly precludes defendant's reliance upon the prior or contemporaneous oral agreement
which its defense to these actions is based ." The decision was affirmed , 152 F. 2d 52
(C. A. 6).
DECISION'S OF NATIONAL LABOR RELATIONS BOARD 995
ascertain whether the strike at Rabouin's was still in effect. Upon
being informed that it was, the shop-steward and other employees
refused to move freight on or off Rabouin's trucks6' In this posture
of the case, I am of the opinion that the action of these employees was
in each instance induced by the Respondent with the object of forcing
Central Warehouse and Oppenheimer and McEwan to cease doing
business with Rabouin, thereby violating Section 8 (b) (4) (A) of
the Act.
The Respondent, however, contends that its conduct was protected
as it had reserved the right in its contracts with Central Warehouse and
Oppenheimer and McEwan to refuse to handle Rabouin's goods.'," In
effect it argues that by reserving this right to itself, the contracts con-
tained provisions which amounted to an agreement in advance to
engage in secondary boycotts. The Act, however, unequivocally pro-
scribes secondary activity on the part of unions69 To the extent that
these contract provisions authorize such activity, they are repugnant
to the basic public policies of the Act. As the Board in the public
interest is charged with the duty of preventing unfair labor prac-
tices,70 contracts which are repugnant to the Act and which conflict
with this duty of the Board must obviously yield.71 Unions or em-
ployers cannot nullify the provisions of the Act which circumscribe
their activities by inducing each other, or employees, to agree by con-
tract in advance to waive their respective rights under the Act. This
Board has therefore in many complaint cases refused to give effect to
contracts, otherwise valid, which were asserted as a defense to unfair
labor practices when such contracts were utilized to accomplish results
clearly incompatible with provisions of the Act 72 Similarly, in repre-
sentation proceedings the Board has refused to honor contracts which
it believed were contrary to various basic policies of the Act.73 Such
agreements between private parties cannot divest the Board of the
exclusive jurisdiction bestowed upon it by Section 10 .(a) of the Act
and thus thwart the assertion by this Board of the public rights which
87 In the case of Oppenheimer and McEwan , the shop -steward was directed by the Re-
spondent 's office not to load or unload Rabouin 's trucks.
68 The relevant provisions of the colitracts referred to are set forth in the Intermediate
Report.
8° Wadsworth Construction Co., 81 NLRB 802.
7° Cathay Lumber Company, 86 NLRB 157 ; and National Licorice Co. v. N. L. R. B.,
309 U. S. 350, 364.
71 J. I. Case Company v . N. L. R. B., 321 U . S. 323, 337.
72 The Duffy Silk Company , 19 NLRB 37 , 47-48; Rutland Court Owners, Inc., 44 NLRB
587; J. I. Case Company, 42 NLRB 85, affirmed 321 U. S. 323 ; and National Licorice Co.,
7 NLRB 537 , affirmed 309 U. S. 350.
,73 Automatic Products Company, 40 NLRB 941 ; Southport Petroleum Company of Dela-
ware, 39 NLRB 257. ' ' '
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are aimed at the prevention of unfair labor practices.14 Accordingly,
as I am of the opinion that the Respondent's contracts with Central
Warehouse and Oppenheimer and McEwan are repugnant to the Act,
I would not consider such contracts as valid defenses to the 8 (b) (4)
(A) unfair labor practice allegations herein.
Except as stated above, I concur in the findings of the majority of
this Board.
MEMBER GRAY, concurring in part and dissenting in part :
I am unable to agree with the majority's conclusion in Case No.
2-CC-12 that the Respondent did not engage in a secondary boycott
prohibited by Section 8 (b) (4) (A) of the Act. The undisputed
evidence established that the Respondent, in furtherance of its dis-
pute with Ward, ordered its member-employees of Motor Leasing, a
contract carrier for Ward, to refuse to service Ward in order to compel
their employer, Motor Leasing, to cease doing business with Ward.
This, to my mind, was clearly in violation of Section 8 (b) (4) (A).
To avoid the plain implications of the Respondent's conduct, the
majority assumes that the Respondent's dispute with Ward, as the pri-
mary employer, concerned conditions of employment of Motor Leas-
ing's employees at Ward's place of business. Therefore, the majority
concludes, the Respondent's conduct constituted permissible primary
activity under the Act. However, even accepting for the sake of
argument that Section 8 (b) (4) (A) does not reach such activity,
the record does not support the factual basis for the majority's as-
sumption: It is undisputed, as the Trial Examiner found, that the
Respondent's business agents went to Ward's premises for the sole
purpose of checking on the presence of so-called "gypsy" truck oper-
ators as a service for Highway Transport Association, an employer
organization. In fact,. the information thus obtained was promptly
reported to that association. Concededly, the dispute between the
Respondent and Ward arose out of the business agents' pique over the
request of a Ward employee on the occasion of this mission that the
agents produce a pass to enter upon the shipping dock. To infer,
under these circumstances, that the resultant dispute involved condi-
tions of employment of Motor Leasing's employees, would require
too unreasonable a strain on the facts in the case, which.I am unwilling
to do.
74 Section 10 (a) reads in part: "The Board is empowered , as hereinafter provided, to
prevent any person from engaging in any unfair labor practice . . . affecting commerce.
This power shall not be affected by any other means of adjustment or prevention that has
been or may be established by agreement , law, or otherwise... See N. L. R. B. v.
Walt Disney Productions , 146 F. 2d 44, 48 (C. A. 10).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 997
Moreover, even if it were assumed that the Respondent was also
concerned about Ward's practice of hiring "gypsy" truck operators 75
because it might have an indirect effect on the employment opportuni-
ties of its members, among whom were Motor Leasing employees, its
dispute with Ward would not involve the working conditions of Motor
Leasing employees. Indeed, the economic situation thus presented
would basically be no different from the situation in any other second-
ary boycott case where a union, having as its objective the improve-
ment of wages and working conditions of its members, exerts pressure
on a neutral employer through its employee-members, precisely as the
Respondent had done here, in order to compel the neutral employer
to cease doing business with the employer who was allegedly jeopard-
izing the union's standards. In either instance, the union implicates
a disinterested employer whom Section 8 (b) (4) (A) was designed to
protect.
In view of the foregoing, I can see no reason for exonerating the
Respondent for conduct clearly prohibited by Section 8 (b) (4) (A).
MEMBER HOUSTON, dissenting in part.:
I disagree with that portion of the majority opinion which con-
cludes that the Union violated Section 8 (b) (3) of the Act by de-
manding, as a condition precedent to settling the strike, that Rabouin
post a performance bond. The majority relies for its conclusion on
cases in which, "in the converse situation," the Board has held that
an employer refused to bargain in good faith by requiring the labor
organization with which it was bargaining to post a performance
bond as a condition precedent to entering into a collective bargaining
agreement. The situations are not synonymous, however. In the
present case, Rabouin had breached his collective bargaining agree-
ment with the Union, and thereby brought about a strike. Rabouin had
also, prior to the strike, issued worthless checks to his employees, so
that they remained unpaid for periods of from 2 to 4 weeks, and at
one time he had been in arrears $3000 in wages. In September 1947,
at the time of the strike, Rabouin owed other carriers between nine
and ten thousand dollars. Therefore, as the majority concedes,
the Union's demand for a performance bond "was not wholly
unreasonable."
This situation is in marked contrast with the cases in which the
Board has condemned an employer's demand that a union post a per-
formance bond where the demand, as well as other circumstances,
711 It appears that the drivers of these, "gypsy"' trucks included both union and nonunion
employees.
998 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
pointed clearly to a conclusion that the employer was not bargaining
in good faith with the intention of consummating an agreement. For
example, in Jasper Blackburn Products Corporation, 21 NLRB 1240,
cited by the majority, the employer demanded at the first bargaining
conference that the union post a bond; and the only grounds for the
employer's demand were "an asserted inability to sue the labor organi-
zation as such, and the possibility that another group might subse-
quently claim a majority." The Board concluded in that case that
"Since the respondent had in 1937 stated its intention not to sign any
agreement, and since none of the proposals advanced either by the
respondent, or by the Union, called for any performance whatsoever
on the Union's part, it would seem clear that the primary purpose of
the respondent's demand for a bond was to avoid the required funda-
mentals of collective bargaining." (Emphasis added.) 76 In the pres-
ent case, however, the strike settlement agreement which the parties
were negotiating contemplated the performance on Rabouin's part
of a number of provisions. Furthermore, the Union clearly did desire
to reach an agreement and to settle the strike, but, in view of its past
experience with Rabouin, felt that it must demand, as a condition
precedent to settling the strike, a performance bond as an assurance
that Rabouin would not again violate his contract. Accordingly, I
would find that the performance bond was proposed by the Union in
good faith, and, therefore, that the Union did not thereby violate its
duty to bargain as required by Section 8 (b) (3) of the Act.
In addition, with respect to the Secretary McCall incident, I agree
with the Trial Examiner's finding that, under all the circumstances,
there was nothing coercive or threatening in McCall's statement to
driver Zuller, and that his action in following Zuller's truck did not
constitute restraint and coercion within the meaning of the Act. I
therefore disagree with the conclusion of the majority that this action
of McCall violated Section 8 (b) (1) (A) of the Act.
APPENDIX
NOTTCE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
7e The other two cases cited by the majority are likewise clearly distinguishable from
the present situation. In neither one is there any showing , as there is here, that the
demand was justified by past bargaining experience. Furthermore, in Scripto Manufactur-
ing Company, 36 NLRB 411, the demand was for a performance bond in the unduly onerous
amount of $100,000 or incorporation by the union. Dalton Telephone Company, 82 NLRB
1001, is clearly inapposite as it is concerned only with the effect of a State statute upon
an employer 's duty to bargain under the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 999
WE WILL NOT RESTRAIN or coerce employees of Conway's Express
in the exercise of their right to refrain from any or all of the
concerted activities guaranteed to them by Section 7 of the Act.
WE WILL BARGAIN, upon request, with Conway's Express as the
exclusive representative of its employees with respect to wages,
hours and other terms and conditions of employment, or the
negotiation of an agreement, or any question arising thereunder
without requiring from Conway's Express a performance bond
or compliance with any other similar condition.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, LOCAL 294, A. F. OF L.,
Labor Organization.
By ------------------------------------------------
(Title of officer)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Messrs. John J. Cuneo, Chester Migden and Bertram Diamond, for the General
Counsel.
Messrs. Harry Posefsky and John J. Walsh, of Gloversville and Utica, N. Y.,
respectively, for the respondent Union.
Mr. George V. Brown, of New York City, for Montgomery Ward & Co., In-
corporated.
STATEMENT OF THE CASE
Upon a second amended charge filed November 25, 1947, by Henry V. Rabouin,
Pittsfield, Massachusetts, doing business as Conway's Express, the General Coun-
sel of the National Labor Relations Board' issued a complaint dated November
28, 1947, against International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local 294, A. F. of L., herein called the Union Local
294, or 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), subsections (1) (A), (1) (B), (2), (3), (4) (A), and (6), and
Section 2, subsections (6) and (7) of the National Labor Relations Act as
amended June 23, 1947, by Public Law 101, 80th Congress, Chapter 120, First
Session, herein called the amended Act. Copies of the complaint, with the second
amended charge attached, and notice of hearing were duly served upon the
respondent Union and Rabouin.
Upon a second amended charge filed October 31, 1947, by Montgomery Ward
& Co., Incorporated, Chicago, Illinois, the General Counsel issued a complaint
dated December 2, 1947, against the same respondent Union, alleging that it had
engaged in and was engaging in unfair labor practices affecting commerce within
' In this report the National Labor Relations Board is referred to as the Board, and
representatives of the General Counsel as General Counsel.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meaning of Section 8 (b), subsection (4) (A) and Section 2, subsections (6)
and (7) of the amended Act.
Also on December 2, 1947, the General Counsel issued an Order Consolidating
Cases, consolidating Cases Nos. 2-CC-12 and 2-CC-14. Copies of the complaint
in Case No. 2-CC-12, with the second amended charge attached, and Notice of
Hearing and Consolidation were duly served upon the respondent Union, Rabouin,
and Montgomery Ward.
With respect to unfair labor practices the complaint, in Case No. 2-CC-14, as
amended during the hearing, alleges in substance :
1. At various times before September 10, 1947, the Union requested that
Rabouin refrain from leasing certain truck and trailer equipment to Middle
Atlantic Transportation Co., Inc., of New Britain, Connecticut, because
Rabouin did not employ members of the Union as its drivers and helpers.
On September 10 the Union ordered Rabouin's employees to strike, and on
September 11 the employees struck, in order to compel Rabouin to cease
doing business with Middle Atlantic. (Alleged as violation of Section 8
(b), subsection (4) (A) of the amended Act.)
2. On September 10, 15, and 16, 1947, the Union refused to negotiate di-
rectly with Rabouin, and restrained and coerced him into designating "some
other person" 2 as his representative for the purpose of collective bargaining.
(Alleged as violation of Section 8 (b), subsection (1) (B) of the amended
Act.)
3. On September 27, 1947, the Union demanded as a condition of settle-
ment of the strike that Rabouin enter into a collective bargaining agreement
containing, inter alia, a provision that Rabouin would employ only members
of the Union. (Alleged as violation of Section 8 (b), subsections (1) (A)
and (2) of the amended Act.)
4. Also on September 27 the Union demanded that Rabouin pay the Union
a.sum of money equal to the wages a member of the Union would have re-
ceived for a trip from New Britain, Conn., to Cleveland, Ohio, made on
September 10, by a driver hired and paid for by Middle Atlantic. (Alleged
as violation of Section 8 (b), subsection (6) of the amended Act.)
5. At various times between September 11 and November 25, 1947, the
Union engaged in observation and surveillance of Rabouin's employees, and
threatened them with bodily injury, suspension of membership in the Union,
and prevention of future employment. (Alleged as violation of Section 8
(b), subsection (1) (A) of the amended Act.)
6. At various times between October 6 and November 25, the Union in-
duced and encouraged employees of other named employers in the course of
their employment to refuse to deliver or load commodities to and, onto
Rabouin's trucks and to refuse to accept or unload commodities delivered
by Rabouin's trucks. (Alleged as violation of Section 8 (b), subsection
(4) (A) of the amended Act.)
7. At all times since August, 1944, the Union has been the exclusive bar-
gaining representative of a majority of the employees at Rabouin's Pittsfield,
Massachusetts, and Rensselaer, New York, terminals in an appropriate
unit. Although on September 10, 1947, and at various times thereafter,
Rabouin requested the Union to bargain collectively, the Union has refused
2 Before amendment at the hearing, upon motion by General Counsel , this phrase read :
"Edward Nester."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1001
and continues to refuse to bargain collectively with Rabouin. (Alleged as
violation of Section 8 (b), subsection (3) of the amended Act.)
In its answer in Case No. 2-CC-14, the respondent Union denied that it had en-
gaged in any of the alleged unfair labor practices ; alleged that the amended Act is
violative of constitutional rights of the Union and its members ; and set forth
certain affirmative allegations as to its relationship with Rabouin which will be
fully discussed below.
With respect to unfair labor practices the complaint, in Case No. 2-CC-12,
alleges in substance :
1. Montgomery Ward's mail order house and retail store in Menands, New
York (Albany County), in the operation of their business,- utilize Motor
Leasing, Inc., Albany, New York, and various other truckers for the ,de-
livery and shipment of merchandise. Montgomery Ward performs no
trucking service. At no time material were employees of Montgomery Ward
represented by the respondent Union. No labor dispute existed between
Montgomery Ward and its employees. On October 15, 1947, the Union in-
duced and encouraged employees of Motor Leasing, Inc., and of various
other employers to engage in a concerted refusal to transport or otherwise
handle Ward's commodities, objects thereof being (a) to force Ward to
cease doing business with truckers not employing Union members, and (b)
to force Motor Leasing, Inc., and other truckers to cease doing business with
Montgomery Ward. (Alleged as violation of Section 8 (b), subsection (4).
(A) of the amended Act.)
In its answer in Case No. 2-CO-12, the respondent Union denied that it had
engaged in any of the alleged unfair labor practices ; again raised objections, on
constitutional grounds, to the statute under which the proceeding was brought,
and set forth certain affirmative allegations which will be discussed fully below.
Pursuant to notice, a hearing was held in Albany, New York, and Washington,
D. C., opening March 16 and closing May 10, 1948, before the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. All parties were repre-
sented by counsel, participated in the hearing, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues.
At the opening of the hearing motions by General Counsel were granted to
amend the complaint in Case No. 2-CC-14 in certain minor respects. A motion
to sever the two cases, made by counsel for the Union, was denied, as was a
request made by the General Counsel to receive separately the evidence relating
to each of the cases. Following presentation of the General Counsel's case-in-
chief, counsel for the Union moved to dismiss each of the complaints in their
entirety and specifically as to each unfair labor practice allegation. These
motions were denied,' but were renewed at the conclusion of the taking of all
evidence. Ruling was then reserved, and they are disposed of by the conclusions
and recommendations below. A motion was granted to conform the pleadings
to the proof in such minor matters as dates and spelling of names.
On March 25, 1948, after the receipt of all evidence in both cases and upon
request of counsel, the hearing was adjourned to April 16, 1948, for oral argu-
3 Motions for dismissal based upon claimed unconstitutionality of the amended Act
were denied in conformance with Board policy established in Rite-Form Corset Company,
Inc., 75 NLRB 174.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went.' Requests for further continuances were later granted. Oral argument
was heard in Washington, D. C., on May 10, and is included in the transcript
of the proceedings. Counsel for General Counsel, the respondent Union, and
Montgomery Ward participated. A brief has been received from General
Counsel.
In view of the unrelated nature of the issues involved in Cases Nos. 2-CC-14
and 2-CC-12, findings and conclusions as to each will be set forth in separate
sections below.
SECTION ONE ( Case No. 2-CC-14)
With respect to Case No. 2-CC-14, upon the entire record in the consolidated
cases and upon his observation of the witnesses, the Trial Examiner makes the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Since July 1, 1944, Henry V. Rabouin, an individual, has operated a motor
truck transportation business under the name "Conway's Express," with a main
office and terminal at Pittsfield, Massachusetts, and another terminal at Rensse-
laer, New York.' Rabouin is the sole proprietor of the business.
Conway's Express is engaged in the transportation of freight by motor trucks
and trailers over public highways to various places in the States of Massachusetts,
Vermont, Rhode Island, Connecticut, New York, and New Jersey. Pick-ups and
deliveries are made at railroad terminals in Albany and Troy, New York. During
1946 the gross operating revenue of the business amounted to about $100,000.
Of this sum, about 75 or 80 per cent was received from the transportation of
freight across State lines.
Rabouin operates his business under the authority of a "Certificate of Public
Convenience and Necessity" issued by the Interstate Commerce Commission.
It is found that Henry V. Rabouin, doing business as Conway's Express, is
engaged in commerce, within the meaning of the amended Act.
H. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 294, A. F. of L., is.a labor organization admitting to
membership employees of Henry V. Rabouin, doing business as Conway's Express.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting in which material events occurred
Local 294 has jurisdiction; under an A. F. of L. "mixed charter," over a broad
field of truck drivers, warehousemen, and helpers in Albany, New York, and its
vicinity. It has many scores of labor agreements with employers in that area.
Union officers and agents concerned in this case include the local president,
4 Because he was soon to leave the General Counsel's staff, and upon agreement of all
parties, Bertram Diamond argued the General Counsel's case as to the Montgomery Ward
issues on March 25, at Albany.
6 Until late September 1947, Rabouin operated another terminal, at Springfield, Massa-
chusetts. The record does not reveal how many employees were at this terminal before
that date. The General Counsel conceded at the hearing that the events at issue in no
way involved the Springfield terminal operations, nor was any claim made in the plead-
ings that the Springfield employees, if any, were to be considered within the appropriate
unit.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 1003
Edmund Ray, Business Agent Peter J. Postma, and Secretary-Treasurer Michael
M. McCall.
The Highway Transport Association of up-State New York, herein called
Transport Association, is an organization of motor carriers in the Albany area
who maintain labor agreements with Local 294. Since April 1947, Carl C.
Duncan has been executive secretary of this Association. Rabouin was a mem-
ber of the Transport Association in 1946, and part of 1947. According to Dun-
can's testimony, Rabouin failed to pay his annual dues in 1947, and sometime
in August, Duncan informed him that he was no longer an association member.
Duncan, however, continued to represent Rabouin, specifically in negotiations
seeking a strike settlement in September 1947.
In general, it has been the practice for union representatives to negotiate an
area-wide agreement with a Transport Association committee. When accord
on its provisions has been reached, copies of the contract are signed by each of
the employers and a union representative.
One of the major issues in dispute is whether or not, in September 1947, a
labor agreement existed between Rabouin and the Union. A detailed discussion
of this issue appears below. At this point it is enough to note: (1) That Rabouin
admittedly was a party to the 1944-46 area agreement ; that in 1946 he formally
authorized the Transport Association to negotiate on his behalf a new contract ;
(3) that a new area agreement was reached, due to expire August 1, 1948; (4)
that Rabouin thereafter failed to sign and to return to the Union a copy of
the current agreement, as he had in 1944 and in accordance with the custom
among association members; (5) that Rabouin nevertheless continued to oper-
ate within the terms of the area agreement, at least until September 1947, and
never told the Union that he considered himself not under contract with it ; and
(6) that not until after the beginning of a strike in September 1947, was Local
294 informed by an official of the Transport Association that Rabouin claimed
himself not to be a party to the area agreement because he had not signed it.6
From August 1946 to September 1947, and in addition 'to the operation of his
business as described above, Rabouin leased in varying numbers pieces of his
trucking equipment to Middle Atlantic Transportation, Inc., New Britain, Con-
necticut. In January 1947, a dispute arose between Rabouin and Local 294 over
the Middle Atlantic arrangement. In settlement of the dispute, Rabouin agreed
to take certain action. On September 10, 1947, when officials of Local 294 found
that Rabouin had failed to abide by his agreement, a strike was called among
Rabouin's employees.
The mapor issues in this case stem from : (1) Conflicting claims as to whether or
not during the material period a labor agreement actually existed between
Rabouin and Local 294; (2) the Rabouin-Middle Atlantic relationship; (3) the
strike beginning on September 10, 1947; and (4) negotiations looking toward
settlement of the strike.
B. Events and conduct in issue
1. Question of labor agreement between Rabouin and Local 294
a. Negotiations of area agreement
Upon determination of the question as to whether or not, in September 1947,
a closed shop agreement really existed between Rabouin and Local 294 depends
e These six findings are based upon Rabouin's testimony, or upon other evidence, un-
disputed.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the merit of a number of allegations in the complaint. The contract issue will
be considered first.
Rabouiti was a party to the 1944-46 area contract. Shortly before expiration of
that agreement, Rabouin formally designated the Transport Association to be his
"sole representative in the negotiation of a labor agreement" with Local 294
"to take the place of the contract which expires on July 31st of this year." 7 He
also agreed, in the same instrument, "to name no other representative until a
new agreement has been reached or to make any settlement with the Union
except through the Association and its Labor Negotiating Committee." 8 The
Union was duly informed by the Transport Association that it was bargaining
on behalf of Rabouin.
Contract negotiations in 1946 covered a period of several weeks. Rabouin
himself attended several Association meetings at which reports were made to the
employers concerning the progress of negotiations. He was present at the em-
ployers' meeting when the Union's final proposal was accepted. The area agree-
ment was reached in October 1946. It is currently in effect and due to expire
August 1, 1948.
Upon successful conclusion of the negotiations, Local 294 followed its prac-
tice of sending each individual employer two copies of the contract, signed by
its president. Two copies were received by Rabouin about October 20. He did
not sign and did not return a copy, either signed or unsigned, for the union files.
According to his own testimony he never informed the Union that he had not
signed. There is no evidence that Rabouin ever told Transport Association of-
ficials that he did not, intend to be a party to the area contract
b. Rabowin's operation under terms of the 1946-48 area agreement
With the exception of the relationship between Conway's Lgpress and Middle
Atlantic Transportation, the testimony of many witnesses establishes that
Rabouin continued to operate his business in 1946 and 1947 in compliance with
terms of the area agreement. Both Rabouin and Noster, his Albany terminal
manager, testified that they continued to hire drivers through the Union. Rabouin
admitted that he paid his employees the wages agreed upon in the new contract,
granted the vacation allowances, and paid the "break-down time." Rabouin
further admitted that, in accordance with terms of the new contract, he paid
7 The document is dated July 16, 1946 , was signed by Rabouin , and was addressed to the
Highway Transport Association.
8 On cross -examination , Rabouin at first denied : (1) having agreed "to be bound by
the negotiations" ; ( 2) having authorized the Association "to make a settlement with the
Union" on his behalf; and (3) having authorized the Association to "make a negotiation"
on his behalf . Upon being confronted with a copy of the document , described In the
footnote next above, Rabouin admitted that he had executed it, that he had made the
Association his sole representative, and that by its terms he had agreed not to enter into
a separate contract with the Union . The Tridi Examiner cannot ignore this self-con-
tradiction in Rabouin 's testimony , upon an important point , when weighing his credibility
as to other disputed matters.
8 Rabouin said that he attended the meeting of employers at which the Union's final
proposal was accepted, but that he notified "the members" that he "refused the contract."
This testimony lacks any support in the record. Duncan, executive secretary of the
Association, testified that it was not until many months later that Rabouin told him he
had not signed the contract the preceding year. Edward Nester, Albany terminal manager,
testified that he had been "under the assumption" that Rabouin had signed the contract,
until "June or July" of 1947. Under the circumstances, the Trial Examiner can place
no reliance upon Rabouin's testimony that he "refused the contract." In any event, he
admitted that he never so informed the Union.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1005
"waiting time," and observed the seniority provisions. He also testified that he
"submitted" himself to the Joint Grievance Board, provided under terms of the
contract, until September 10, 1947. At least on one occasion, and as late as
August 1947, he conformed to a decision, which was against him, issued by this
grievance Board.
In May 1947, wage scales in the area were revised upward, following negoti-
ations between the Union and a special committee of the Association. Duncan
testified that he sent announcement of the new wage scales to all members, and
that Conway's Express was then a member. Rabouin admitted that he put the
new wage scales into effect.
c. Conclusions as to existence of a labor agreement
It is the position of the General Counsel, stated during the hearing, at oral argu-
ment, and in his brief, that because Rabouin failed to sign the 1946-48 area con-
tract there was no labor agreement between Conway' s Express and the Union in
September 1947. He argued, in effect, that no labor agreement could legally exist
in the absence of one party 's signature . As one authority , he cited Section 331,
"Labor Disputes and Collective Bargaining," by Ludwig Teller. The Trial Ex-
aminer finds nothing in the cited authority , or in Board and court cases referred
to there, which is determinative of the precise issue here. In substance, the issues
there discussed relate to the good faith bargaining of an employer, who has nego-
tiated directly with a union seeking a signed contract , but who performed the
positive act of refusing to place his signature upon any document . Refusal was
made directly to the party seeking the signature. Here the situation is different.
Rabouin never informed the Union that he did not intend to sign,10 or that he
had not signed, the area agreement. Moreover, Rabouin did not inform the em-
ployers' association, his authorized bargaining agent, until nearly a year after
the area contract became effective . The Trial Examiner finds no merit in General
Counsel's position.
In summary , undisputed evidence establishes that Rabouin : ( 1) was a party
to the preceding area contract of 1944-46; (2) authorized the Transport Asso-
ciation to negotiate , on his behalf , a succeeding agreement ; ( 3) never rescinded
that authorization; (4) agreed by the same instrument to make no settlement
with the Union except through the Association; (5) took part in Association
meetings when reports were made on negotiation progress ; ( 6) was present at
the employers' meeting when the final contract was accepted; (7) pursuant to
practice received copies of. the area agreement; (8) did not then or ever inform
the Union that he would not sign or would not be a party to the contract; (9)
throughout the following year abided by the agreement's provisions (except in
the matter of his Atlantic operations) ; (10) submitted to a Joint Grievance
Board proceeding, under the contract, concerning the Atlantic operations ; .(11)
10 General Counsel also stressed , in oral argument , certain testimony by Rabouin as proof
that the Union must have been aware , some 2 or 3 months after the 1946-48 contract
was sent to Rabouin , that he had not signed it. The testimony referred to was, in sub-
stance, that Rabouin , although he could not recall , thought that another contract , which he
believed was identical with the first received , came to him through the mail, from the Union,
sometime in the winter or spring of 1947. The trial Examiner cannot rely upon Rabouin's
vague, unsupported testimony . No explanation was offered as to why, if a later copy
actually had come to him, it was not produced at the hearing. A copy of the original docu-
ment, sent to him in October 1946 , and the envelope . containing it, were offered and received
in evidence. Noster, who received the original contract and forwarded it to Rabouin, was
not questioned about receiving any later copies . The evidence is insufficient to support
General Counsel's contention.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received from his representative the new wage scales negotiated in 1947; (12)
put the new wage scales into effect; (13) not until August 1947, informed the
Association that in 1946.he had not signed the area agreement; and (14) never
informed the Union that he considered himself not under contract with it.
These circumstances plainly show that Conway's Express. at all times since
October 1947, has been a party to the Albany area 1946-1948 labor agreement.
It is so found.
2. The Middle Atlantic operation
a. Lease and operating procedure
It is General Counsel's contention, in substance, that Rabouin's relationship
with the Middle Atlantic Transportation Company was a separate and distinct
enterprise, one in which Local 294, as the representative of Rabouin's employees,
was in no way validly concerned.
According to his testimony, Rabouin began to lease a number of his trucking
units to Atlantic in August 1946, and that such leasing arrangements ceased
on September 30, 1947. During this period he leased from one to four units to
Atlantic, supplying, the equipment as needed. When not in operation for At-
lantic, the units reverted to Rabouin's use."
From August 1946, to January 1, 1947, only an oral agreement covered the
relationship between the two concerns. A written agreement was signed by
the two parties as of January 1. The record does not reveal clearly whether
or not there was any material difference in the oral and the written agreements.
In any event, the questions at issue arose during the existence of the written
agreement, which is in evidence.
Rabouin testified that he solicited no freight to be transported by his equip-
ment leased by Atlantic, and that his equipment on lease to Atlantic carried
none of his freight. This point is not raised in the agreement, and Rabouin's
testimony upon it is accepted as true.
Rabouin said that: (1) he did not hire for, or furnish to, Atlantic any drivers
to operate his equipment; and (2) he exercised no supervision over such vehicles
while they were being used by Atlantic. He also 'testified, however, that a
12-page document, entitled "Agreement and Operation Procedure" and signed
both by himself and an official of Atlantic, is the agreement under which the leas-
ing operations were conducted from January 1 to September 30, 1947. Certain
provisions in this agreement, which in the absence of credible proof to the
contrary must be accepted as descriptive of the actual relationship, fail to
support the contention that Rabouin's dealings with Atlantic were a distinct
and separate enterprise from that of Conway's Express. Particularly is this so
when certain provisions are evaluated in the light of testimony. of Rabouin
himself and that of a driver who operated Rabouin's equipment for Atlantic.
For example, it is plain that Rabouin's equipment was considered by Atlantic
as "spare" or "extra" vehicles. The agreement defines "regular leased vehicles"
as equipment which "is under a Lease to the Company (Atlantic) and working
exclusively in the Company's service." Another provision specifies that "when-
ever a `spare' or an `extra' is used, the Trip Sheet must show the designation
as a `Spare' or `Extra' so the destination terminal will be correctly advised."
The only Trip Sheet introduced in evidence bears the designation "Extra."
"TRIAL EXAMINRR . As I understand it, it was sort of temporary arrangement , is that
it? They'd have a piece of equipment for a while and it would revert to you?
The WITNESS . .( RAROUIN ). It did happen that way.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1.007
Furthermore, Rabouin testified, as noted above, that he supplied equipment to
Atlantic only as the latter needed it, and at other times the equipment reverted
to his own use. When a unit of Rabouin's equipment was to be assigned to
an Atlantic run, the driver picked it up at Rabouin's Pittsfield terminal. When
the run was completed, the driver delivered it back to the same terminal.
Although Rabouin testified that he had no "supervision" over his equipment
when it was hauling Atlantic freight, by his signature to the agreement he plainly
became jointly responsible for the operating procedure set out in that document.
The agreement recites in many details the rules, among others, governing: (1) a
driver's duty to report by telephone to the "destination terminal" of Atlantic
when his late arrival is expected; (2) a driver's right to stay at his own home
over a week-end if at an intermediate point on his trip; (3) a requirement that
operations shall be conducted in a "legal manner, so as to nowise embarrass the
company (Atlantic) or endanger their operating rights"; (4) restriction of both
the owner's and driver's rights to refuse any load meeting certain weight re-
quirements; (5) computation procedure and schedule of wage adjustments for
drivers under different conditions; (6) requirement for a driver, when using
more than normal time in making his "drop-off or pick-up," to make a complete
report to his owner, who would then handle adjustments with the driver or with
Atlantic; (7) requirement that before starting on a trip both the Atlantic origin
dispatcher and "the owner (or his driver as his agent) will sign the trip sheet,"
which is the "instrument by which both the driver's wages and the owner's
remuneration are computed" ; (8) if changes are made in the agreed price by the
destination dispatcher, requirement that "the owner (or driver as the owner's
agent)" shall sign the trip sheet; (9) amounts of advance money for operating
expenses which is to be given to drivers by Atlantic before starting trips to
different points; (10) requirement that such advance checks be made out to
the driver, but that the check voucher must show the owner's name, in order
that the amount may be deducted from the owner's account; (11) the following
specific matters:
Since these advances are to cover operating expenses, we (Atlantic) will
immediately stop authorizing any charges such as gasoline, oil, bridge or
toll tickets, tires, repairs, etc. Please bear in mind that the operators are
going to conduct their own business. We will pay the driver's wages, we
will pay the owner's statement and we will advance sufficient money to
operate on while en route but we cannot make any additional advances nor
'0. K.' any further charges to our accounts. [Emphasis added.]
Under .this system, positively no advances against wages or for any other
purpose are to be made by any office. Should a vehicle need repairs, tires,
or any other item which cannot be handled out of the normal advance, it will
be the driver's duty to get in touch with his owner and make his own arrange-
mnents: [Emphasis in original agreement.]
and (12) the following items as to the payment and employment of drivers:
By this agreement, the Company (Atlantic) is authorized to make an
advance to a driver for every trip (in accordance with the Procedure cover-
ing Advances) and is also authorized to pay as wages to each driver (in
accordance with payroll and Trip Sheet procedure) an amount equal to the
mileage wage scale contained in the eleven state area 'Union contract, and
charge such wages and advances to the account of the Owner.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is agreed that all Owners will either drive their own vehicles in the
Company's service or will use men who have complied with the Company's
employment procedure and with the I. C. C. requirements for employment
as qualified drivers.
Whenever an Owner uses a driver instead of driving himself, he agrees
that he will pay the driver no money for wages, breakdown, layover, vacation
pay, expense allowance, etc., other than by Vouchers through the Company's
records. No voucher is necessary for wages as specified on the Trip Sheet,
but any money due the driver for any other purpose or for any other reasons
shall be computed by the Owner and the Driver and the Amount so computed
shall. be specified on the Voucher. The Voucher shall be signed by the
Owner and the Driver and sent to the Company in Duplicate. The Company
will then pay the amount on the Voucher to the Driver (less any proper
withholding taxes) and charge the payment to the Owner's account; if the
balance owing to the owners is sufficient to make the payment. After pay-
ment has been made, the Duplicate copy will be returned to the Owner with
his statement.
The testimony of Richard Zuller, a driver, further reveals the actual rela-
tionship between Rabouin and Atlantic. Zuller made trips for Atlantic with
Rabouin's equipment in early September 1947. Zuller lives in Albany. He met
Rabouin and asked him for a job. Rabouin told him that he was going "to put
a truck on Middle Atlantic." After telephoning to Atlantic, according to Zuller,
he was told by Atlantic to pick up Rabouin's equipment at his Pittsfield "yard."
After making two or three trips for Atlantic, Zuller was informed by one of its
dispatchers that the "Rabouin truck was being discontinued," and that he "was
the same." Zuller thereupon returned the equipment to Pittsfield. He has
never worked for Atlantic on any other equipment than that owned by Rabouin.
He has had no further connection with Atlantic. Within a few days he was hired
by Rabouin to drive for Conway's Express, his other employees then being on
strike.
Rabouin testified as to three other drivers, Fiset, Butler, and Twining, who
were his employees at various times between 1941 and 1946. During the general
trucking strike in the Albany area, in August 1946, these three men began driving
his trucks leased to Atlantic. During the strike at Conway's Express in Sep-
tember 1947, these three men were reemployed by Rabouin to drive for Conway.
There is no evidence in the record as to any other drivers operating Rabouin's
equipment on the Atlantic run.
The terms of the Rabouin-Atlantic contract, described above, fully establish a
joint employer relationship. Drivers operating Rabouiri's equipment were de-
pendent for work upon the lease of his equipment ; their pay, although received
from Atlantic, was deducted from the amount paid to Rabouin by Atlantic ;
and Rabouin was an equal party to the rules and regulations governing the opera-
tion of his equipment and of the drivers of that equipment.
b. The Union's protest in January 1947
In January 1947, after the execution of the Atlantic agreement, Peter J. Postma,
business agent of Local 294, visited Rabouin at his Pittsfield terminal. He in-
formed Rabouin of a report reaching him that Fiset and Butler were operating
his equipment for Atlantic, and demanded that members of Local 294 in good
standing be placed on these trucks. Rabouin refused. Postma submitted the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1009
dispute to the president of the Highway Transport Association, who appointed
another employer member, Mayberry, to attempt settlement. A meeting of the
three was held at the union office in Albany. Postma again demanded that
Rabouin employ Local 294 men on the Atlantic run, in accordance with his union
contract. Rabouin declared that he neither paid nor hired these men, and had
no control over them.. Postma insisted. Mayberry, speaking for the employers'
association, told Rabouin that in his opinion he was violating the area contract.
Rabouin said that under the Albany area wage scale he could not operate the
Atlantic arrangement with profit, and agreed that he would discontinue the
operation and dispose of the equipment within 30 days.
Despite this agreement, Rabouin neither discontinued the Atlantic operation
nor disposed of the equipment. So far as the record reveals, the Union took no
further action on this matter until September 1947.
3. Bad checks
Rabouin testified that at various times before the strike of September 1947, he
issued pay checks to his employees which they were unable to cash because of
insufficient funds in the bank . Postma's testimony is undisputed ( 1) that in
March 1947 he complained to Rabouin that his employees had been unpaid for a
period of from 2 to 4 weeks , because of bad checks , and (2 ) that at one time
Rabouin was behind three thousand dollars in wages. Duncan, secretary of the
employer's association , said that in September 1947, Rabouin owed other carriers
between nine and ten thousand dollars.
4. The strike of September 1947
a. The incident at Pittsfield
At Rabouin's request, on September 10 driver Richard Zuller came to the Pitts-
field terminal to change tires on a piece of Rabouin's equipment used on the
Atlantic run. Zuller was not a member of Local 294.
While Zuller was at work on the truck, Postma approached Rabouin and his
Pittsfield terminal manager, Fred Brown. Postma asked who owned the truck.
Rabouin admitted that it was his truck, leased to Atlantic. Postma inquired as
to whether or not the driver was a union member. Rabouin said he did not
know. Postma then reminded Rabouin of his agreement in January, to operate
such equipment with Local 294 men or to dispose of the equipment. Rabouin
protested that he did not pay the drivers, and had no control over the equipment.
Postma countered by declaring that they had "been over" this before, and that
he guessed there was not "too much" they could do about it. Postma walked
toward his car. Rabouin followed, and asked what he could do. Postma replied
that he was going back to Albany and report the matter, and declined to talk
further about it. Postma returned to Albany, reported the dispute to Duncan,
and called a strike of Conway's employees.
b. The strike
By September 12, 1947, Rabouin's seven drivers and dock men at Pittsfield and
one driver at Albany had left their work, on strike. The strike continued until
Postma was served with a restraining order issued by Stephen W. Brennan, U.. S.
District Judge, on January 17, 1948.
877359-50-vol. 57-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Conclusions as to the purpose of the strike
The complaint alleges that the Union called the strike to compel Rabouin to
cease doing business with Atlantic, and that by this action it has violated Section
8 (b) (4) (A) of the amended Act.
The history of the dispute fails to support this claim. From its beginning,
aF: described by Rabouin himself, the controversy had as its kernel Postma's
demand that nonunion drivers be used on his Atlantic equipment. Postma
insisted in January 1947 that Local 294 men be used. When Rabouin refused,
according to his own testimony it was he, not Postma, who posed the alterna-
tive of abandoning the Atlantic arrangement. Rabouin testified :
Mr. Postma said we'd have to put 294 men on, and I said we couldn't
do it because we didn't control the trucks or the men . . . the only alter-
native is dispose of the equipment, and he said "I don't give a darn what
you do with the equipment, but you can't operate it without 294 men." . . .
Postma's testimony is uncontroverted that Mayberry, the employers' Associa-
tion representative at the same meeting, told Rabouin he was violating the
area agreement by not using Local 294 men. Rabouin was adamant, however;
finally Postma accepted Rabouin's own alternative-and agreement was reached
that lie would dispose of the equipment within 30 days, an agreement which
he did not keep.
Moreover, the first demand made by the Union, as a condition for settling the
strike, was that Rabouin pay a Local 294 man for the trip made by Zuller, a
nonunion employee. There is no evidence that at any time, from January to
and including the final conference of September 27, did the Union even suggest
that Rabouin cease "doing business" with Atlantic.
Nothing in Postma's testimony, his demeanor on the witness stand, nor other
witness' characterization of him, permits the conclusion that in his dealings
with Rabouin he demanded one thing but meant another.
Nor may it reasonably be held that cessation of the Atlantic relationship was,
as General Counsel claims, an inevitable effect of Postma's demand for the use
of Local 294 men, and that therefore the Union must be held accountable for
invoking an inescapable event. No evidence in the record supports Rabouin's
assertion that Local 294 men could not have been assigned to his equipment.
The only three men, revealed by the evidence, to have driven his Atlantic trucks
before Zuller was placed, had been Local 294 men until suspended, and had been
on his Conway's Express payroll. His contract with Atlantic refutes his claim
that he had no control either over the equipment or the drivers, and is silent
on the question of union membership.
Finally, Rabouin was in fact a joint employer of the drivers operating his
equipment on the Atlantic run. Even if the facts warranted a finding that the
Union sought by the strike to cause discontinuance of his leasing arrangement,
the strike would have remained a labor dispute of a primary nature, and not
a secondary boycott. Certainly Rabouin cannot be termed to be a stranger to
himself.
It is concluded and found that the evidence fails to support the allegation
that the Union caused a strike . . . "an object thereof being to force or require
said Employer to cease doing business with Middle Atlantic Transportation
Co., Inc., in violation of Section 8 (b), subsection (4) (A) of the Act."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1011
5. The appointment of Edward Noster as Rabouin's representative
a. Circumstances surrounding the appointment
On September 12 Rabouin came to Albany and asked Edward Noster, the
local terminal manager, to see Postma in an effort to settle the strike. At the
same time he told Noster that he wanted him to come to Pittsfield and take
charge of both terminals. About September 16 Noster moved to Pittsfield and as-
sumed full charge of Rabouin 's operations until about the middle of October'a
On September 12 Noster called at the union office, and told Postina that he
had been delegated by Rabouin to try to settle the dispute. Postma replied
that he didn't want anything to do with Rabouin. Koster then told the busi-
ness agent that he was going to Pittsfield to operate that terminal as general
manager. Postma pointed out that Rabouin had previously appointed Brown
to be general manager, but had overruled him when he started to act on dis-
putes. Postma also said that he was not yet ready to talk about Conway's.
but agreement was made to meet 2 or 3 days later.
Noster then visited Duncan , and asked him to intercede in an effort to got
an earlier meeting date . Duncan was unsuccessful . It was on the occasion of
his call to Postma, according to Duncan 's own testimony , that he first informed
the union official that Rabouin claimed not to be a party to the area contract.
When Noster called Postma on September 15, he was informed that a power
of attorney from Rabouin would be necessary . Apparently there was some
misunderstanding as to the exact wording Postma desired. Noster at first
obtained one appoin,ing him as Rahouin's "labor representative." Noster took
it to the union office a day or so later, but Postma insisted that it should set
forth the fact that Noster had been made general manager, with full power
to represent Conway's Express. Noster obtained the desired document on
September 17 and again visited Postma, who accepted it.
b. Conclusions as to the appointment
The original complaint alleged that the Union violated Section 8 (b) (1)
(B) of the amended Act1s by coercing Rabouin "into designating Edward
Noster as his representative." Upon a motion granted, and after completion
of his case-in-chief, the General Counsel amended the complaint by substituting
"some other person" for "Edward Noster."
Evidence adduced by the General Counsel fails to support either the original
or the amended allegation. Rabouin made no claim that any union official or
agent even requested him to appoint Noster or anyone else, specifically or in gen-
eral terms, to be his representative. Noster's testimony establishes that it was
not until after he had informed Postina of his designation as general manager
12 The finding rests upon Noster ' s credible testimony . The unreliability of Rabouin's.
testimony , in general , was further established by the contradictory nature of his account
of this matter. Rabouin at first stated flatly that Noster's duties and functions did not
change, and that he remained as terminal manager at Albany. Later he testified that
although Noster became general manager, he "remained at Albany. as Albany terminal
manager and he had the power to handle the company ' s business ." Again be stated that
"not with me " did Noster ' s duties and functions change . Still later , however, in response
to General Counsel's persistent questioning, he admitted that Noster went to Pittsfield
and "performed the duties of General Manager."
12 That subsection reads : "It shall he an unfair labor practice for a labor organization
or its agents . . . to restrain or coerce an employer in the selection of his representatives.
for the purpose of collective bargaining or the adjustment of grievances."
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and representative that the latter demanded written confirmation in the form of
a "power of attorney." Postma's comment-that Rabouin had previously
divested Brown of similar authority during negotiations-appears to be a rea-
sonable explanation of his demand. But whether reasonable or capricious, his
insistence upon proof of Noster's claim constitutes a violation of no section of
the amended Act.
When the paucity of proof as to this issue was pointed out to General Counsel
during the hearing, he conceded : "I agree . . . there's nothing in the testi-
mony that says the Union asked Noster to be appointed." He then claimed, and
lnaintained, the position during oral argument and in his brief, that Postma's
refusal to discuss the Atlantic dispute further with Rabouin at Pittsfield on
September 10 coerced Rabouin into appointing someone else to represent him.
The Examiner finds this claim to be equally without merit. Even if Postma's
comment on September 10 warranted a finding that he thereby refused to deal
with Rabouin (an issue discussed below) it does not follow that Rabouin was
coerced, by Postma's negative act, into appointing anyone as his representative.
Rabouin's subsequent designation of Noster was his own choice of counter action,
and the Union may not reasonably be held responsible for that choice.
In summary, it is found that the evidence does not sustain the allegation that
the Utiion has violated Section 8 (b) (1) (B) of the amended Act.
6. Negotiations during the strike
a. Before September 27
On September 17, when Noster delivered the acceptable "power of attorney,"
he asked Postma what the company must do to settle the strike. Postma declared
that Rabouin must pay for the Atlantic trip made on September 10. Noster
agreed to comply with this demand, but said he would have to get the necessary
trip ticket from Rabouin, which might take 4 days. Postma said that further
discussion must await production of the trip ticket.14
Noster again called at the union office on September 23. Postma declared that
he could not settle the dispute with him, because Rabouin kept operating his
trucks out of Pittsfield. Noster replied that he was not aware of this, and told
Postma that he guessed he would have to get Rabouin himself to come to Albany
and discuss the matter. Noster called Rabouin, and then arranged with Postma
for .a meeting on September 27. At Nester's request, Duncan agreed to attend.
b. The conference of September 27
Rabouin, Noster , Duncan, and Brown attended the conference on behalf of
Conway's Express. Postma , Secretary McCall, and the union steward at Pitts-
field represented the Union . Duncan acted as Rabouin 's spokesman throughout.
Duncan opened the discussion by asking what could be done to settle the strike.
Postma replied that he did not want anything to do with Rabouin because of his
unreliability . Duncan countered with the plea that although Rabouin may have
"done some things wrong in the past ," the Union should "give him another
chance ." Duncan and Postma then shifted their conversation to other subjects.
14 The findings as to this conference are based upon Noster's credible testimony. Postma's
denial that any discussion of strike settlement terms was had until September 27 is not
accepted as accurate. Noster's account finds support in Duncan's testimony to the effect
that on September 27 the payment for the Atlantic run was not a "live issue," and that he
,understood Noster and Rabouin had, before that date, agreed to pay it.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 1013
When they returned to the strike issue Postma told Duncan that the men could
go back to work if Rabouin: (1) paid for the Atlantic run of September 10; (2)
signed the area contract; and (3) posted a five-thousand dollar compliance bond.
On behalf of Rabouin, and after discussion with him, Duncan agreed to all
three proposals, and asked Postma to have the contract ready for signature the
following Monday morning in the event Rabouin was able to obtain the bond.
The conference ended with this oral agreement. As the company representa-
tives left the office Postma handed to Noster a pay check which had been given
to the union steward by Rabouin, marked "Return for insufficient funds."
Noster told Postma that Rabouin was "borrowing money over the week-end" to,
meet the check,"
e. Events after September 27
According to Rabouin's testimony he tried but failed to obtain a bond. In any
event, he submitted none to the Union. There is no evidence that, until-
Octo-ber 2, he made any effort to communicate with the Union to seek further
negotiations.
On October 2 Rabouin sent the following letter to the Union, attention of
Postma :
I have been attempting to negotiate a fair labor agreement with you for
the last three weeks. Operations ceased evening of September 10, 1947 on
your order to our steward Leeward Gelineau to call the men off the jobs.
Since then my representative Edward Noster has conferred with you three
times previous to September 27, 1947. On that date, Mr. Harold Duncan,.
Executive Secretary of the New York Highway Transport Assoc. and myself-
conferred with you in effort to arrive at a labor agreement. The only labor-
agreement you would allow me is the present one in" force with the Albany-
operators providing I would secure it with a $5,000.00 bond. I can't obtain,
such a bond and I personally haven't the money.
Apparently my only alternative, if I am to continue earning a livelihood.
(sic), is to resume operations without a labor agreement. I would prefer
a labor agreement so that I may work and live like other motor carriers,
but at the present time we are denied that privilege.
I shall have to assume you do not care to negotiate such an agreement
and will start operations if I do not hear from you in writing by nine
(9) A. M., October 6, 1947.
No explanation was elicited from Rabouin, at the hearing, as to why be sent
the Union this letter, which contains a number of statements which are wholly
without support in the testimony of Duncan, Noster, and even of himself.
For example, there is no evidence that Rabouin at any time on September 10
or thereafter, sought to "negotiate a fair labor agreement." On the contrary,
the testimony of Noster, the only individual to confer with the Union on behalf
of Rabouin from September 10 until September 27, establishes that he was seeking
only to settle the strike, and that on no occasion until September 27 was a "labor
agreement" mentioned, and then not by Rabouin or his representatives, but by
Postma. Duncan's testimony is to the effect that not until September 12 did he
inform Postma that Rabouin had failed to sign the 1946-48 agreement.
w The findings as to this conference are based mainly upon , and the quotations are
from, Noster ' s testimony , which is corroborated in major details by that of Rabouin,
Duncan , and Postma.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the testimony of Noster, Duncan, and Rabouin is in agreement
that it was the Union, not Rabouin, which demanded the signing of the area
agreement as a condition for ceasing the strike."
Finally the testimony of both Duncan and Noster is to the effect that it was
Duncan, as spokesman for Conway's, who made the suggestion that the signing
of the contract be made conditional upon obtaining the bond. Noster testified :
He (Duncan) told Mr. Postma to have a contract drawn up in the event
the company was able to meet the conditions . . . for the next Monday
morning.
Duncan testified, after citing Postma's three conditions for settling the strike :
Those were his demands, and I asked Mr. Postma if he could get the
contract ready in case we did get the bond.
The. Union made no reply to Rabouin's letter of October 2. There is no evi-
dence that either party thereafter made any effort to meet for negotiations look-
ing toward settlement of the strike or the signing of the contract.
As found above, the strike continued until January 1948, upon issuance of a
restraining order by a U. S. District Court.
d. Conclusions as to the Union's dentiand for pay for the Atlantic run
The complaint alleges that by its demand for payment of a sum of money equal
to wages received by Zuller for the Atlantic run of September 10, the Union
violated Section 8 (b), subsection (6) of the Act.
The subsection cited makes it an unfair labor practice for a Union or its agents :
to cause or attempt to cause an employer to pay or deliver or agree to
pay or deliver any money or other thing of value in the nature of an exaction
for services which are not performed or not to be performed.
The General Counsel introduced into evidence Zuller's trip ticket for the run
in question. This document, plus Zuller's testimony, makes it abundantly clear
that "services" were performed.
The terms of the agreement, to which Rabouin was a party, contains this
provision:
The Employer agrees to employ only members of the Union in good
standing.
It has been found that Rabouin was a joint-employer of the drivers operating
his equipment for Atlantic. In January 1947, the Union's claim that Rabouin
must, by terms of the contract, employ Local 294 drivers on such equipment was
validated by the employers' association representative.
16 Rabouin testified that after Duncan had asked Postma : "What can we do about
Conway's Express 1" the business agent replied :
Here's what we'll do. We'll have you pay for the Middle Atlantic run, we'll have
you sign the area contract . . . plus posting a five-thousand dollar bond showing
your good faith.
Noster testified :
... Mr. Postma said to Mr. Duncan, "We'll allow them to go back to work pro-
vided they pay for the Middle Atlantic run, sign a general area contract without
the Arbitration clause in it, and post a five-thousand dollar bond."
Duncan testified :
. . . Finally I brought the subject back to Conway's strike . . . Mr. Postma said
they would be agreeable to settling the strike if Rabouin would sign the area contract
minus the Grievance Board . . . clause and pay for the Middle Atlantic run and post
a five-thousand dollar bond.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1015
Furthermore , in addition to the above-cited provision in the contract, Rabouin
himself admitted as a witness that in January he agreed to use Local 294 men
on the equipment or dispose of it. -
The testimony of both Postina and Duncan makes plain that the sum of money
demanded by the Union was to be paid to the unemployed union driver, with
highest seniority at the union hiring hall, who should have been assigned to the
Atlantic run. The services had been performed. In violation of both the area
contract and his oral agreement Rabouin had made payment to a nonunion
driver.
Two factors dictate the conclusion that the Union's demands were not violative
of the amended Act: (1) Services were performed, for payment was demanded;
(2) Both the area contract and Rabouin's oral agreement were entered into long
before the effective date of the amended Act. Section 102 of the amended Act
applies." A contrary interpretation of Section S (b) (6), under these circum-
stances, would be to establish a principle which would bar the Board from order-
ing back pay to employees against whom an employer had discriminated illegally.
In such cases, having been discriminatorily discharged, the employees perform
no services themselves, but are made whole for wages which they lost as a
result of an unfair labor practice.
It is therefore concluded and found that by the above-described demand the
Union did not violate Section 8 (b) subsection (6) of the amended Act.
e. Conclusions as to the alleged demand for a closed shop
The complaint alleges that on September 27 the Union demanded that Rabouin
enter into a closed shop agreement with it, thereby (1) restraining and coercing
employees in violation of Section 8 (b), subsection (1) (A) of.the amended Act,
and (2) attempting to cause Rabouin to discriminate against employees in viola-
tion of Section 8 (b), subsection (2) of the amended Act.
Since the Union in fact did not demand a closed shop contract on September
27 or on any other date following the effective date of the amended Act, it
follows that neither of the above-cited subsections of the Act was violated.
The Union merely asked, as a condition for settling the strike, that Rabouin
place his signature upon the Albany area agreement, a closed shop contract due
to expire August 1, 1948, to which Rabouin had been a party since October 1946.
The Union's demand was no more than insistence that Rabouin formalize or
acknowledge by signature an act which he had performed long before the date of
enactment of the amended Act. Section 102 of the amended Act specifically
protects closed shop contracts of this nature.
It is concluded and found that the Union did not demand that Rabouin enter
into a closed shop agreement with it, and did not thereby violate Section 8 (b),
subsection (1) (A) or Section 8 (b), subsection (2) of the amended Act.
17 "No provision of this title shall be deemed to make an unfair labor practice any act
which was performed prior to the date of enactment of this Act which did not constitute
an unfair labor practice prior thereto , and the provisions of section 8 (a) (3) and section
8 (b) (2) of the National Labor Relations Act as amended by this title shall not make
an unfair labor practice the performance of any obligation under a collective -bargaining
agreement entered into prior to the date of the enactment of this Act, or (in the case of
an agreement for a period of not more than one year ) entered into on or after such date of
enactment, but prior to the effective date of this title, if the performance of such obligation
would not have constituted an unfair labor practice under section 8 (3) of the National
Labor Relations Act prior to the effective date of this title , unless such agreement was
renewed or extended subsequent thereto."
1016 DECISIONS OF ' NATIONAL LABOR RELATIONS BOARD
f. Conclusions as to the alleged refusal to bargain
There is no dispute as to the appropriate unit or the majority representation of
Local 294. The allegations of the complaint are admitted in the answer.
It is the General Counsel's contention and the complaint alleges that the Union
has refused to bargain collectively with Conway in respect to rates of pay or
other conditions of employment, since September 10, 1947. Specifically, in oral
argument the General Counsel cited the following events in support of this
contention : (1) Postma's refusal on September 10 to discuss further with
Rabouin the Atlantic dispute; (2) Postma's insistence that Noster produce
authority to represent Rabouin; (3) Postma's demand that the Atlantic run
be paid for; (4) the demand for a closed shop contract; (5) the demand for it
performance bond; and (6) the failure and refusal of the Union to, meet with
Rabouin after receipt of his letter of October 2, 1947.
A number of the above-cited events were also alleged to have been violations
of other subsections of the amended Act, and such have been disposed of.
As to (1), Postma's refusal to talk further with Rabouin on September 10,
events both before and after that date deprive it of any' weight as proof that
the Union refused to negotiate. Rabouin's own testimony is to the effect that
the point at issue on September 10 had been negotiated, fully and formally, in
January; he had then agreed to follow a certain course of conduct but had
failed to abide by his agreement. And the issue was further negotiated during
the strike with Noster and at the meeting of September 27, attended by Rabouin
himself. There was no refusal to bargain on September 10.
As to (2), under the circumstances described above the Union's insistence that
Noster provide satisfactory proof of authority was not unreasonable, and re-
sulted in no long delay of negotiations. In this area it was the custom for
trucking employers, when delegating representation authority, to issue powers
of attorney. And the evidence shows that during the same year Rabouin had
revoked apparent and informal authority given to another terminal manager,
Brown, to act on his behalf. The Trial Examiner finds no element of bad faith
in this incident of the negotiations.
As to (3), the Union's demand that Rabouin pay for the Atlantic run, it has
previously been found that the request was not such as to bring it within the
prohibition of Section 8 (b) (6). It was not an unfair labor practice in and of
itself. The Examiner finds nothing in the amended Act and knows of no other
law which prohibits an employer from making whole an employee under the
circumstances here defined. Thus there is no basis for inferring a lack of good
faith from a demand that Rabouin engage in an illegal act. Rabouin promptly
agreed to the request, with the approval of the executive head of the employers'
association. Although there is no evidence that he carried out the agreement
made at the meeting of September 27, there is also no evidence that he voiced
the slightest protest against the demand. As found heretofore; the Union's
demand, in view of Rabouin's January oral agreement and the provision of the
area agreement, was in many respects parallel to the recognized policy of the
Board and the courts, in requiring an employer to make whole an employee
unlawfully discriminated against, even if in fact he has actually not performed
the work himself. The Union was asking for wages which the senior union
driver would have received for the trip if, in accordance with Rabouin's agree-
merit, he had been hired for the trip. There is no merit in the contention that
this demand was an act of bad faith in bargaining.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1017
As to (4), the demand for a closed shop, it has been found that no demand
of this nature was made. It is further found that in asking Rabouin to sign
the area agreement, to which he already was a party in reality, the Union was
not bargaining in bad faith.
As to (5), the Examiner is of the opinion and finds that under the circum-
stances admitted by Rabouin himself, the Union was not making an unreasonable
demand for the performance bond. Rabouin had repeatedly issued bad checks
to his employees, and had been weeks behind in paying them. In any event, the
testimony of all witnesses on this subject is in accord that the demand for
the bond was made as a provision for settlement of the strike, and not as a
provision for entering into a 'collective bargaining agreement.
As to (6), the Union's failure to seek further bargaining conferences after
October 2, the letter sent by Rabouin on that date plainly called for no such
action on the Union's part. For reasons unrevealed in the record Rabouin had
seen fit to send the local a statement of his intentions, and included therewith
claims which were obviously false. That the Union chose to ignore a letter
containing false claims reveals no bad faith.
In summary, the Examiner finds that no item of the Union's conduct above
described constituted an act of bad faith in collective bargaining, and that on
no date from September 10, 1947, to the time of the hearing has the Union
refused to bargain with Rabouin.
7. Other events during the strike
a. Inducement of other employers not to handle Conway's freight
. (1) Universal Carloading
On October 8, after Rabouin had resumed operations as he promised on October
2, Postrna went to the office of the Universal Carloading and Distributing Co.,
in Albany, and told Office Manager Wilbur Sturm and Warehouse Foreman
James Houlihan that "Conway was out," as far as he was concerned. Both
Sturm and Houlihan were clearly supervisors within the meaning of the amended
Act, and Houlihan 's testimony establishes that Postma 's remark was addressed
to the two , although office employees nearby may have overheard it.
On October 14, driver Richard Zuller appeared at the unloading dock of
Universal with a shipment of Conway 's freight for delivery . When the driver
handed him the shipping order , Houlihan declared , "We can ' t handle it ." Zuller
returned the shipment to Conway 's terminal.
In explanation of his action Houlihan testified : ( 1) that he had known of
Conway's strike before Postma ' s visit , and (2 ) that although his company had
never before been " tied up" by handling struck freight , he understood that such
a. result would follow if Conway's freight were handled on this occasion.
There is no evidence that Postma or any other union agent ever spoke to any
employees, as defined by the amended Act, of Universal concerning the strike
at Conway's.
(2) Holland's Warehouse
On October 22, John Russo, head of the Fort Orange Equipment Corporation,
a distributor, requested Conway's to pick up a piece of equipment at Holland's
Warehouse, both concerns being in Albany. Although Fort Orange had ware-
house space at Holland's, it had no employees there. Russo called William
Holland and asked him to load the equipment when Conway's truck arrived.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When driver Zuller called at the warehouse, owner Holland and his one em-
ployee started to load the equipment. Secretary McCall of the Union came
up to the truck and said to Holland, "N. G." Holland turned to his helper and
said, "No Go." Acting upon Holland's orders, the helper removed the equipment
from the truck and Zuller drove away without it.
(3) Cluett-Peabody and Company
On November 10, Clerk James Rosetti of Cluett-Peabody and Company, Troy,
New York, received a telephone call from someone who identified himself as
Sherman Atwater, of Local 294. Rosetti was asked if Foreman Felock was
there. He said "No." He was then asked if a Conway's truck was on the
premises. Upon reporting in the affirmative, he was asked (1) to leave a
message requesting Felock to call Atwater when he came in, and (2) to tell
the driver of Conway's truck to reload. Rosetti was further told that if he
received the load he would "get in trouble over it."
Rosetti delivered the message to Conway's truck driver, Matthew Pochman,
but, as Pochman testified, he paid no attention because he did not know who
Rosetti was.
When Felock returned he called Atwater, whom he knew to be a business
agent of Local 294. Atwater asked, about the freight being unloaded by
Conway. Felock investigated and replied that unloading was nearly complete.
Atwater "advised him," according to his testimony, to have it reloaded, and
added, "We never have had any trouble with Cluett-Peabody. We always got
along, and let's go along now and not have any trouble." Felock reported the
request to his superior, General Manager Sipperly. After discussion Felock
went to his shipping clerk and told him to load the material back on Conway's
truck, after which Pochman drove away.
Felock testified credibly that his talk with Atwater was friendly, and that
Atwater merely asked for his cooperation. Felock is clearly a management
representative, since he has the authority to fire employees, and is not an
employee within the meaning of the amended Act.
b. Contract holding employers
(1) Central Warehouse
On November 10 Samuel Caesar, one of Rabouin's drivers, went to the ship-
ping office of Central Warehouse in Albany to pick up freight. Union steward
Walter Crowley, a checker, came to him and asked if he belonged to Local 294.
When Caesar replied that he did not, Crowley said that he would have to
call the Union. Returning from the telephone, Crowley said he was sorry,
15ut the freight would remain there. Crowley, according to his own testimony,
had learned from the union office that the "controversy" was still on. Caesar
did not pick up the freight.
Central Warehouse is a party to the Albany area warehouse agreement with
Local294.
. (2) Palmer Lines, Inc.
Richard Mielke, union shop steward at Palmer Lines, Inc., was the only wit-
ness called by General Counsel to testify as to the alleged boycott of this
trucking concern. He testified that Palmer Lines is a party to the Albany area
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 1019
agreement with Local 294. For a period of about 2 years before September 11,
according to Mielke , Palmer Lines had been transferring freight to Conway's
Express. It ceased such transfer on or about September 11, and began using
the services of another company. The record contains no evidence as to who
issued instructions that transfer to Conway should stop , although it may
reasonably be inferred that the action was taken by management pursuant to
a clause in the contract described below. In any event , there is no evidence
as to which agent of the Union , if any, invoked the contract clause.
In early November or late October, according to Mielke , General Manager
Wood asked him to find out from Postma about resuming transfer with Conway,
since Rabouin owed them money. Within a few days Mielke raised the ques-
tion at a union meeting, and was told by Postma, "You don't have to. You've
got a contract that says you don't have to . . . anybody that 's out on strike ..."
Mielke reported this comment to Wood , and no resumption was made in the
handling of Conway's freight.
Palmer Lines is a party to the Union 's area trucking contract.
(3) Oppenheimer and McEwan Company
About November 10, driver Caesar of Conway 's brought a shipment of goods
to this concern 's warehouse . He offered the freight bill to Dispatcher Arthur
Kircher, who is also Local 294's steward at this warehouse. Kircher called
the union office, having heard that there was a labor dispute between Conway
and the Union . Neither Postma nor McCall was there , but the office girl
told him the strike was still on. Kircher told Walter McEwan , member of
the firm there in the office , of the situation , and McEwan replied, "If that is
the way it is, that's the way it is." Kircher then told Caesar that he could
not accept the freight , because of the strike . Caesar left without making
delivery. A day or so later Kircher called McCall , and asked if there was
any way to get the needed freight. McCall said "No."
This company is a party to the Union 's area warehouse contract.
c. Conclusions as to the boycotting
The complaint alleges that the Respondent induced the employees of certain
other employers , in the course of their employment , to refuse to load or unload
goods to and from Rabouin 's trucks, thereby violating Section 8 ( b), subsection
(4) (A) of the amended Act.
Evidence was adduced as to six employers ; findings have been set out above.
The circumstances involved divided the six into two groups of three : one where
union agents visited supervisors of employers not parties to the area contract,
and the other involving employers who were and are parties to union agreements.
The first group includes Universal Carloading , Holland's Warehouse, and
Cluett-Peabody.
At Universal, Postma visited Sturm and Houlihan and told them that "Conway
was out." Both Sturm and Houlihan were clearly supervisors, as defined by
Section 2, subsection ( 11) of the amended Act, and not employees , as defined
by Section 2, subsection ( 3). There is no evidence that Postma announced
the Union 's position to any employees , or that any employee of Universal was
"induced" to refuse to handle Conway's freight . It was Sturm himself who
told Conway 's driver the shipment would not be accepted.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Holland's Union Agent McCall spoke only to Holland, the owner and em-
ployer.18 Holland gave the order refusing delivery to Conway's truck. Holland
was and is an employer within the meaning of Section 2, subsection (2) of the
amended Act, and not an employee within the meaning of Section 2, subsection
(3). There is no evidence that McCall induced any employee at Holland's to
refuse delivery.
At Cluett-Peabody, Union Agent Atwater talked with Foreman Felock, "advis-
ing" him to reject the shipment. Felock consulted with his superior, the general
manager, and then ordered Conway's driver to reload and return the goods.
Both Felock and Sipperly were supervisors, not employees, within the meaning
of the amended Act 1D
In summary as to these three employers, it is concluded and found that the
Union or its agents induced none of their employees to refuse to handle freight
transported by Conway's Express, and that therefore Section 8 (b), subsection
(4) (A) of the amended Act has not been violated.
As to Central Warehouse and Oppenheimer and McEwan, each of these em-
ployers is a party to the area warehouse agreement with Local 294, which includes
a provision to the following effect :
The Union reserves the right to refuse to handle goods from any firm or
truck which is engaged in any controversy with this or any other Union.
Palmer lines is a party to the area trucking agreement, which contains the follow-
ing provision :
The Union reserves the right to refuse to accept the freight, from, or to
make pick-ups from or deliveries to establishments where picket lines, strikes,
walkouts and lock-outs exist.
The trucking agreement was entered into in October 1946, and is due to expire
August 1, 1948. The warehouse agreement was entered into May 1, 1947, and
expired May 1, 1948.
At each of the warehouses Local 294 stewards, and employees within the
-Weaning of the amended Act, refused to accept or deliver Conway's freight. At
Palmer Lines, Inc., the evidence does not establish whether management or the
union steward issued orders ceasing transfer of Rabouin's express. In any
event, in all cases it is clear that the refusal to handle Conway's shipments was
in full accord with the respective employer's contract with Local 294, and that
each steward was cognizant of the contract provisions at the time of his action.
Since these agreements were entered into before the enactment of the amended
Act, Section 102 of the amended Act, previously quoted in full, applies. The "act"
1s Although his position is not entirely clear, in oral argument General Counsel referred
to the fact, as if of some significance, that Holland at the time had applied for Union
membership. The Trial Examiner considers the fact to be immaterial. Rabouin himself
is a member of Local 294, and has been throughout the period of this controversy. If union
membership bears with it responsibility for acts of the union agents, then Rabouin would
be placed in the strange position of being both the victim and perpetrator of alleged unfair
labor practices.
19 In oral argument, the General Counsel cited, as evidence that an employee was
"induced" or "encouraged," the fact that Clerk Rosetti first answered the telephone call
and, in Felock's absence, was asked by Atwater to convey a message to Conway's driver,
and was told that if the shipment were received he would get into trouble. As to the first
point, Conway's driver ignored the message, and no stoppage of delivery or receipt occurred
until later , when Felock issued orders. As to the second point, Rosetti's testimony estab-
lishes that he had nothing to do with the loading or unloading of trucks, and was a clerk
in an entirely different department. Nothing that Atwater said to him could have caused,
or did cause, any cessation of handling Conway's freight.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1021
from which stemmed the refusal to handle Conway's freight was the area agree-
ment, entered into by both the employers and,the Union, and by which each was
bound. There is no evidence to show that, absent the agreement, any one of the
three stewards would have ceased handling Rabouin's freight. Furthermore,
since it has been found that Conway's Express was also a party to the area truck-
ing agreement, it appears that Rabouin is here seeking relief for an act in which
he was a party responsible. To grant such relief would reduce a solemn Act of
Congress to administrative absurdity.
Whether employers and unions may now enter into such agreements, for their
mutual protection of for any other reason, is a matter which the Trial Examiner
is not called upon to determine. The making of the agreement was not an unfair
labor practice under the law then existing.
It is concluded and found that by the acts above described, the Union has not.
violated Section 8 (b), subsection (4) (A) of the amended Act.20
d. Alleged coercion of Rabouin's employees during strike
(1) The incidents
Evidence as to alleged coercion by Union agents upon three Conway employees
during the strike was introduced. The employees involved were Richard Zuller,
Matthew Pochman, and Linus Conkins.
As to Zuller, his testimony is to the effect that on October 15, immediately after
his unsuccessful attempt to pick up freight at the Holland warehouse, Secretary
McCall came.up to him and asked if he knew he was scabbing. He replied that
he had to make a living. McCall told him he could square himself -with the
Union by letting him know all of Rabouin's pickups and deliveries. McCall also
asked him, according to Zuller, where he was going and how much he was being
paid, told him he didn't want to catch him around town in Conway's trucks, and
declared that "we" were going to follow Rabouin's trucks around town. Zuller
"Even if the factor of the contract clause were absent , the Trial Examiner doubts if a
violation of this provision of the amended Act could reasonably be found, as to events at
the two warehouses and Palmer Lines, where union stewards acted on behalf of the Union.
Rabouin's business is such that the establishment of a picket line at his Albany terminal
would be futile and meaningless . He does no manufacturing , processing , selling , or serv-
icing at one address . His business consists of picking up freight from a warehouse, rail-
road or other terminal , and delivering it at some other point . His actual place of business
changes according to orders received from his shipper -customers . From a realistic point of
view, therefore , it would appear that the genuine limitations of his "premises" extended
to the points where his trucks picked up, or where they delivered, freight. In effect, the
Union was engaged in primary, not secondary, picketing at the two warehouses and at
Palmer Lines. Thus the proviso of Section 8 (b) (4) would apply. That proviso reads :
Provided, That nothing contained in section 8 (b) (4) shall be construed to make
unlawful a refusal by any person to enter upon the premises of any employer (other
than his own employer), if the employees of such employer are engaged in a strike
ratified or approved by a representative whom such employer is required to recognize
under this Act.
The clear intent of this proviso is to permit, as a right ender the described circumstances„
employees of company A to observe the picket lines of employees of company B, thereby
refusing to deliver or transport goods across such picket lines. It follows particularly
in view of the "free speech" provisions of Section 8 (c) of the amended Act, that employees.
of company B have the right to picket and peacefully to persuade employees of company A
not to cross their picket lines. The prescribed circumstances of the above proviso here.
exist. The complaint alleges, the answer admits, and the evidence establishes that Local
294 is the representative whom Rabouin is required to recognize under the amended Act,
and it is plain that Local 294, since it called the strike of Rabouin's employees, ratified"
or approved its own action.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereupon drove away from Holland's and returned to Conway's, terminal.
McCall followed along the main streets in his car and made a telephone call over
a telephone in the office shared by Rabouin. Also according to Zuller, he quit his
work with Rabouin the next day, and went to see McCall. McCall advised him
to go back and seek reinstatement, and report on Rabouin's deliveries. Zuller
did not return to work for Rabouin. McCall's testimony concerning the incident
does not differ in major respects from that of Zuller, and it is found that Zuller's
account is substantially accurate.
As to Pochman, the credible portions of his testimony and that of Postma and
McCall establish that in November, when he was passing the union office in one
of Conway's trucks, he was hailed by the two union agents. Postma asked him
if he didn't know Conway's was still on strike. Pochman admitted that he did,
but had to work, pointing out that the Union had suspended him for 30 days
for refusing to take a job offered to him after the strike began. Postma declared
that he would guarantee Pochman would never work in Albany again, and they
parted 2'
As to Conkins, two incidents were raised as issues. One occurred on October S.
Although a union member, Conkins returned to work during the strike. On that
date, while halted at a traffic light in a Conway truck, President Ray of Local
294 pulled up beside him in his car and asked "Aren't you boys on strike?" When
Conkins replied, "Well, I'm not," Ray told him, "You better send in your book."
The light changed and each went his separate way.
Two days later Postma approached him at the Albany terminal, pointed out
that the drivers were still on strike and reminded him he had been offered a job
with another company. When Conkins insisted that he wanted the steady job
with Rabouin Postma declared, "Well, you'll lose your book." A few minutes
later Conkins drove away from the terminal. Postma, in his car, followed
tvldbd the truck for about a quarter of a mile to a branching of routes, at which
point they parted.
Conkins admitted that he was violating his Union's rules by working for a
struck concern.
(2) Conclusions as to alleged coercive incidents
The complaint alleges that the above-described events constituted a violation
,of Section 8 (b), subsection (1) (A) of the Act, in that employees were restrained
and coerced in the exercise of their rights, under Section 7 of the Act, not to
strike.
As to Pochman and Conkins, both of whom were union members at the time
the strike began, it appears that they voluntarily broke union rules, to which
they presumably subscribed when becoming members, and were informed clearly
as to the consequences of their violations-loss of union membership. Postma's
"guarantee" to Pochman that he would never work in Albany again could only
have been reasonably construed by Pochman as meaning that lie would never
get a job through the Union as long as he continued to violate union rules. At
the time of the hearing, several months after the incident, Pochman was still
working in Albany.
21 Testimony is in dispute as to who closed the door at the conclusion of their talk, and
as to whether or not the glass in the door was cracked in the act. The Trial Examiner
considers the evidence upon this matter to be insufficient to support a finding of
responsibility.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 1023
The proviso of Section 8 (b) (1) (A) of the amended Act states:
. .. this subsection shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention of mem-
bership therein.
Since the proviso specifically reserves the right of rule-making in the above
respect, it must reasonably be assumed that Congress intended that the Union
should have the corresponding power to invoke those rules. A right without
the authority to use it would be meaningless.
As to Zuller, nothing in his encounter with McCall exceeded the bounds of
peaceful persuasion, protected by Section 8 (c) of the amended Act. McCall's
remark to the effect that he didn't want to catch Zuller "around town" on Con-
way's trucks was not addressed to one of the needles-trade profession, but a truck
driver, like himself. Had Zuller interpreted the remark even as an implied
threat of physical violence, the Trial Examiner has no doubt, having observed
Zuller as a witness, but that he would have accepted the challenge on the spot.
The two incidents of "following" were trivial and isolated, even if intentional.
In neither case was attempt made to bar, impede, or even embarrass the driver
concerned.
The Trial Examiner is convinced, and finds, that the evidence does not sustain
the allegations of the complaint that the above-described conduct violated Section
8 (b) (1) (A) of the amended Act.
C. Conchvsions in summary
For the reasons set forth above, the Trial Examiner concludes and finds that,
with respect to Case No. 2-CC-14, the Respondent has engaged in no unfair
labor practices within the meaning of Section 8 (b), subsections (1) (A), (1)
(B), (2), (3), (4) (A), and (6) of the amended Act. It will therefore be
recommended that the complaint in Case No. 2-CC-14 be dismissed in its entirety.
SECTION TWO (Case No. 2-CC-12)
With respect to Case No. 2-CC-12, upon the entire record in the above con-
solidated eases and upon his observation of the witnesses, the Trial Examiner
makes the following:
FINDINGS OF FACT
i
1. THE BUSINESS OF THE COMPANY
Montgomery Ward & Co., Incorporated, herein called Ward, is an Illinois
corporation having its principal office in Chicago, Illinois, and is engaged in
selling merchandise at retail. In the course of its business, it operates mail
order houses, retail stores, and mail order units in cities and towns located in
States throughout the United States.
At all times material, Ward has operated, in the same building, a retail store
and mail order house in the city of Menands, County of Albany, New York, and
in conjunction with this establishment has maintained and operated four ware-
houses located in the cities of Albany and Troy, New York.
During 1947 the cost value of materials received at the mail order branch
in Menands totaled about $15,000,000, from 75 to 80 percent of which was re-
ceived from outside the State of New York. During the same year, the sales
value of merchandise totaled about $25,000,000, 55 percent of which was shipped
out of New York State.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During 1947 the cost value of merchandise received at the retail store in
Menands totaled $7,000,000, approximately 85 percent being received from
points outside New York State. Of its total sales during the same year, valued
at $5,000,000, about 3 percent was shipped to points outside New York State.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local 294, A. F. of L., is a labor organization within the mean-
ing of Section 2, subsection ( 5) of the amended Act, and has its principal office
in Albany, New York.
III. THE UNFAIR LABOR PRACTICES
A. Setting in which material events occurred
At its Menands establishment the company maintains a receiving and ship-
ping department and dock, which serves both the mail order and retail depart-
ments. Adjacent to the shipping dock is a public parking area. Ward's
premises have a common entrance to both the dock and the parking area. No
company guard is stationed at this entrance. In its retail store, a considerable
distance from the dock, the company stations a guard or watchman who issues
passes to visitors to the retail store who desire to go to departments not open to
the public.
Ward's employees at Menands have no collective bargaining representative.
The company operates no delivery trucks of its own, and employs no truck
drivers. Motor Leasing, Inc., an Albany trucking firm, is under contract with
Ward to provide trucks and drivers for the delivery of Ward's merchandise to
customers' homes, as well as for operating road hauls between Albany, New
York, and Boston . Ward is also serviced by a number of other common carriers.
Motor Leasing is a member of the Highway Transport. Association and is a
party to the area union agreement.
B. The events of October 15
Early in the afternoon of October 1.5, 1947, having learned from the union
steward at Motor Leasing that a "gypsy" was at Ward's dock, Business Agents
Postma and McCall visited the premises. A "gypsy" operator, as defined by
Duncan, executive head of the employers' association, is one who owns equip-
ment but who holds no I. C. C. certificate, so leases his equipment to a certified
carrier, or one who leases his equipment to another carrier and hauls for him
on a percentage basis. According to both Duncan and Postma, the employers'
association has solicited the earnest cooperation of the Union in finding out
and reporting to it the identity of such truck operators who haul freight into
the Albany area, in order that the information may be passed on to the Inter-
state Commerce Commission. The Union has frequently been of service to the
local employers in this respect. It was upon a similar errand that Postma and
McCall were bound on October 15.
The business agents entered the premises through the public gate, apparently
unchallenged. They approached two "strange" trucks drawn up to the dock
and asked the drivers who they were hauling for and if they had union cards.
They learned that both drivers were hauling for Gilbert Carriers, one with
Pennsylvania plates picking up and delivering freight in New York State. One
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1025
driver held a union card, the other-did not. The business agents made note of
the license plate numbers and later reported them to Duncan.
While talking on the dock with another driver, a union member, Postma and
McCall were approached by one of Ward's employees, a group leader in the
receiving department. This employee asked if they had passes. Postma asked,
"Passes for what?" The employee explained that he meant passes to be on
the dock, and that they must be obtained from the lobby of the store. Postma
declared that if he needed a pass, so did all the truck drivers. Both business
agents thereupon ordered a driver of a Motor Leasing truck, and a driver of
an Albany-Binghamton Express truck, also an Albany carrier under contract
with Local 294, to pull their equipment away from the dock. Both drivers
promptly obeyed and did not complete their work, consisting in one case of un-
loading freight and in the other of loading U. S. mail. When one of Ward's
department heads protested his leaving the dock, the driver of the truck used
for carrying mail declared, "I know . . . but I have to obey the delegate's
order . . . that's my bread and butter." The driver of the Albany-Binghamton
truck, after leaving the'dock on Postma's instructions, reported to his dispatcher
by telephone and was told to return to his terminal. Neither driver returned
to Ward's that day, nor the next.
After giving the above instructions to the two Local 294 drivers at the dock,
Postma and McCall proceeded to the entrance gate, and during the remainder
of the afernoon halted all truck drivers who were union, members as they were
about to enter the premises. In each case the drivers were instructed not to
proceed to the dock. The substance of the testimony of three drivers thus
stopped is to the effect that the union agent explained his action by referring
to some trouble with a "gypsy," and Ward's order that he leave the dock since he
had no pass. These drivers made no further pickups or deliveries at Ward's
that day or the next.
Informed of this action by the union agents, a number of Ward's officials
came to the gate to protest. Traffic Manager Francis Marshall inquired what
the trouble was. Postma said that he had been asked for a pass, and insisted
that if he needed one, so did all of his drivers. Protection Superintendent W. J.
McTigue asked if he had been mistreated while on the premises, and although
Postma replied in the affirmative he gave no details.22 McTigue and Postma then
exchanged comment concerning the matter of passes, as to who issued them and
why. Marshall then protested about the halting of deliveries, and Postma
countered, "Well, what are you fellows worrying about, anyway? You have
your `gypsies' up there at the clock. Let thenr take care of it." During the
continuing conversation Postma said that he was tired of having his union
people work beside nonunion drivers on Ward's dock, and advised Marshall
that Ward should "get smart" and use local truckers.
Finally McTigue asked Postma what the company could do to straighten
the matter out, and the business agent replied that nothing could be done. On
this note the conference apparently ended, the business agents unyielding in
their refusal to let trucks enter the premises but making no demands upon
the company.
The findings as to the conference at the gate are based mainly upon the testimony of
11McTigue who, of the several to testify on this point, including Postma and McCall. impressed
the Trial Examiner as endeavoring to present the most straightforward and least colored
account.
877359-50-vol. S7 66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the same afternoon a number of truckers, whose equipment had been
turned away from Ward's, communicated with Duncan, in an effort to find
.out what the trouble was. Late in the day Duncan managed to reach Postma
by telephone, and was informed that while he was checking on gypsies, Ward
had "shoved him around," and he intended to do a little shoving himself.
The nest day, Thursday, McCall gave Duncan the license plate numbers of
the gypsies, and told Duncan that the situation as to passes remained the
same. Duncan passed this information along to the truck operators who called
him that day, and advised them that under the circumstances they had "better
stay out." Duncan also communicated with Marshall, at Ward's, who assured
him that the drivers needed no passes. Duncan called McCall and reported
;Marshall's comment, but was told that the men would nevertheless need passes.
Apparently none of the carriers, under contract with Local '294, made de-
liveries or called at Ward's on Thursday. In particular about 27 drivers and
helpers of Motor Leasing equipment refused to transport merchandise for Ward,
Although asked to do so by Office Manager Woodgate. Woodgate was informed
-by the union steward, Clifford Cotten, that the men would not service Ward
-until receiving orders from the Union.
Also on Thursday, Postma telephoned to Marshall on three occasions. On
the first he told Marshall that if Ward would issue passes to the drivers they
.could resume service. Marshall said be would submit the request to higher
-management. Early that afternoon. Postma called again. Marshall turned
the telephone over to the company attorney, but the record is barren of any
evidence as to the nature of that conversation. Late in the afternoon Postma
-asked for a letter from Ward stating that no passes were needed by drivers.
-When received, lie said, the men could return to work. Again Marshall agreed
-to submit the matter to his superiors. No letter, however, was sent to Postma,
-and there was no further communication between the Union and Ward.
No trucking service by Local 294 drivers was rendered on Friday, October 17.
In mid-afternoon of that clay, McCall telephoned to Duncan, and told him the
situation had been settled, whereupon Duncan communicated with the carriers,
.and normal service to Ward was resumed the following day.
C. Conclusions
The complaint alleges that by the above-described conduct the Union violated
the amended Act within the meaning of Section 8 (b) (4) (A), in that it induced
.employees of Motor Leasing and other truckers to cease servicing Ward, objects
..of such inducement being: (1) to require Ward's to cease doing business with
truckers not employing members of Local 294, and (2) to force Motor Leasing
and other truckers to cease doing business with Ward.
The evidence is uncontroverted that Postma and McCall are union agents,
.and that acting in this capacity they induced employees of Motor Leasing and
,other truckers to cease handling Ward's merchandise on October 15, 16, and IT.
It is so found.
Only a tortured interpretation of events after the occurrence, however, could
lead to the conclusion that an object of their action was to force Ward to hire
- truckers employing union members. No such demand was made upon Ward's
before the halting of the drivers, or during the cessation of service. It is true
that Postma and McCall went to Ward's premises to check on the presence of
"gypsies," with the intention of doing precisely what they did-report the infor-
mation to the Highway Transport Association. They found "gypsies" there,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1027
made note of their license numbers, and started away from the dock. Had they
mot been asked for passes, it is reasonable to assume that they would have left
the premises peaceably, and that no stoppage of services would have been made.
Not until the conference at the gate, itself brought about by company officials
and not by the Union, had continued for some time was any mention made of
"gypsies," and then only by Postma in reply to a protest by Marshall that Ward
needed trucking service. No demand was made by Postma at any time that Ward
cease using gypsies, or that the Union required such cessation as a condition for
resumption of service. The testimony of both McTigue and Duncan, each
involved in the dispute at the time, makes plain that it arose solely over the
matter of passes, and that upon this note alone it subsided.
It is concluded and found that the evidence does not support, the allegation
that an object of Postma's action was to force Ward to employ only truckers
.using Local 294 men.
The Examiner is convinced and finds that the sole precipitating factor was
,the demand made upon Postma for a pass. He resented the demand. As he
-told Duncan, he did not enjoy being "shoved around"-and decided to indulge
in retaliatory "shovinb." He ordered 294 men away from the dock and prevented
others from entering the premises.
That his action was perhaps natural in his case, and in any event under-
standable, however, does not remove it from restrictions imposed by the amended
Act. Although his resentment was personal, his action was taken as a business
agent of the Union, and the drivers obeyed his authority as such.
Counsel for the Union contends that, in effect, Postma and McCall set up a
.picket line at the gate, and by terms of the contract between truck owners and
the Union, the Union had the right to have its members refuse to cross the
-picket line.
The clause referred to reads :
The Union reserves the right to refuse to accept freight from, or to make
pick-ups from or deliveries to establishments where picket lines, strikes,
walk outs and lock-outs exist.
No strike, lock-out, or walk-out existed at Ward's. Until the employee drivers
refused to enter Ward's premises, no labor dispute, as defined by the amended
-Act, existed between Ward's and Local 294, or any other union." And no picket
line was at the gate. It would be a strange interpretation of the term if one or
two business agents were to be considered as a perpetual and itinerant picket
.line, and an even stranger interpretation of the contract's clause if, under it,
employers might be held to have agreed that wherever one or two business agents
-halted and held up their hands, the drivers were not required to pass.
The Trial Examiner finds that the position of the Respondent's counsel is
untenable. It follows that Section 102 of the amended Act, quoted heretofore,
does not apply.
Although it is only with some effort that the personal dispute between Postma
.and Ward may be construed as "industrial strife" which, according to its stated
purpose, the amended Act seeks to minimize, it is clear that Postma did set in
23 Section 2 (9) reads :
The term "labor dispute" includes any controversy concerning terms, tenure or
conditions of employment, or concerning the association or representation of persons
in negotiating, fixing , maintaining, changing, or seeking to arrange terms or conditions
of employment, regardless of whether the disputants stand in the proximate relation
of employer and employee.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion, through his authority as business agent, concerted refusal by union,
members to service Ward's, thereby affecting the flow of commel ce, and creating
a labor dispute. The refusal of union drivers to service Ward until their busi-
ness agent had "straightened out" the pass controversy may reasonably be con-
strued as a "labor dispute" as defined by the amended Act. It was a term or a
condition for resuming their work.
It is therefore concluded and found that on October 15 the Union induced em-
ployees of Motor Leasing and other truckers to refuse to handle Ward's com-
modities, . an object thereof- being to require said truckers to cease doing business
with Ward, and thus engaging in an unfair labor practice within the meaning of
Section 8 (b) (4) (A) of the amended Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent Union set forth in Section III, above, occurring:
in connection with the operation 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 tend to lead, and have led, to labor disputes
burdening and obstructing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (b) (4) (A) of the-
amended Act, it will be recommended that it cease and desist therefrom, and
take certain affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondent cease and desist from inducing
and encouraging employees to engage in a strike or concerted refusal in the
course of their employment to refuse to perform services for their employer
where an object thereof is to require their employers to cease doing business
with Ward.24
Upon the basis of the foregoing findings of fact and upon the entire record.
in the consolidated cases, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and'
Helpers of America, Local 294, A. F. of L., is a labor organization within the-
meaning of Section 2, Subsection (5) of the amended Act.
2. Peter J. I'ostma and Michael R. McCall are agents of the aforesaid labor
organizations.
3. Montgomery Ward & Co., Incorporated, and Henry V. Rabouin are engaged:
in commerce within the meaning of Section 2 (6) and (7) of the amended Act_
4. By inducing and encouraging employees to refuse in the course of their
employment to transport goods to and from Montgomery Ward & Co., Incorpo-
rated, with the object of forcing Motor Leasing, Inc.. and other truckers to cease
doing business with Montgomery Ward & Co., Incorporated, the Respondent
had engaged in unfair labor practices within the meaning of Section 8 (h) (4) (A)^
of the amended Act.
5. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the amended Act.
24 The recommended order, of course , will not contemplate restraining future action by:
the Respondent which may be legal under Section 8 ( b) (4) (A) or other subsections of 8 (b)..
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1029
6. The allegations of the complaint in case No. 2-CC-14 that the Respondent
has engaged in unfair labor practices have not been sustained.
RECOMMENDATIONS
-Upon the basis of the foregoing findings of fact and conclusions of law,,the
Trial Examiner recommends that the Respondent, International Brotherhood of
'Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 294,
.A. F. of L., its officers and agents shall:
1. Cease and desist from inducing find encouraging employees of any employer
to engage in a strike or concerted refusal in the course of their employment to
refuse to perform services for their employer where an object thereof is to force
or require their employer to cease doing business with Montgomery Ward & Co.,
Incorporated.
2. Take the following affirmative action in order to effectuate the policies of
.the amended Act:
(a) Post in conspicuous places at the business office of International Brother-
'hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
:294, A. F. of L., Albany, New York, copies of the notice attached hereto as an
Appendix. Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by the Respondent, be posted
by the Respondent immediately upon receipt thereof and maintained for a period
of sixty (60) consecutive days thereafter in conspicuous places, including all
places where notices to members are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material ; and
(b) Notify the Regional Director for the Second Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the Respondent
has taken to comply therewith.
It is'further recommended that, unless the Respondent, within ten (10) days
from the receipt of this Intermediate Report, notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondent to take the
:action aforesaid.
It is further recommended that the complaint in Case No. 2-CC-14 be dis-
missed in its entirety.
As provided in Section 203.46 of the Rules and Regulations of the National
'Labor Relations Board, any party may, within twenty (20) slays from the date
,of service of the order transferring the case to the Board, pursuant to Section
'203.45 of the said Rules and Regulations, file with the Board, Washington 25,
D. C., an original and six copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and six copies of a brief in support thereof; and any
party may, within the same period, file an original and six copies of a brief
in support of the Intermediate Report. Immediately upon the filing of such
statement of exceptions and/or briefs, the party filing the same shall serve a
copy thereof upon each of the parties. Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46, should any party desire
permission to argue orally before the Board, request therefor must be made
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing to the Board within ten (10) days from the date of service of the.
order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaidi
Rules and Regulations, the findings, conclusions, recommendations and recom-
mended order herein contained shall, as provided in Section 203.48 of said;
Rules and Regulations, be adopted by the Board and become its findings,.
conclusions and order, and all objections and exceptions thereto shall be deemed[
waived for all purposes.
C. W. WHITTEMORE,
Trial Examiner:.
Dated June 9, 1948.
APPENDIX
NOTICE TO UNION MEMBERS
Pursuant to the recommendations of a Trial Examiner of the National Labor-
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE. WILL NOT induce or encourage employees of any employer to engage-
in a strike or concerted refusal in the course of their employment to refuse
to perform services for their employer where an object thereof is to force
or require their employer to cease doing business with Montgomery Ward &.
Co., Incorporated.
Dated --------------
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA, LocAL 294, A. F. OF L.,
Labor Organization.
By ------------------------------------------------
(Title of officer)
This notice must remain posted for sixty (60) days from the date hereof,.
and must not be altered, defaced, or covered by any other material.