International Brotherhood of Teamsters, etc.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1769 (N.L.R.B. 1954)

INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 1769'
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA , GENERAL DRIVERS AND,
HELPERS LOCAL No. 554, AND CHAUFFEURS , TEAMSTERS AND HELPERS
LOCAL No. 608, AFL, and MCALLISTER TRANSFER , INC. Case No.
17-CC-18. December 16,1954
Decision and Order
On July 8, 1953, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, recommending that
the complaint be dismissed in its entirety. Thereafter, exceptions and
briefs were filed by the General Counsel and by the Charging Party.
Pursuant to notice, oral argument was held on March 9, 1954, before
the Board at Washington, D. C., in which the General Counsel, the
Charging Party, and the Respondent participated. Briefs amicus
were filed by the American Trucking Association, the American
Federation of Labor, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, and Central States
Drivers Council, the Congress of Industrial Organizations, the
Chamber of Commerce of the United States, and the National Manu-
facturers Association.
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 In-
termediate Report, the exceptions and briefs, the oral argument,
and the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner only insofar
as they are consistent with this Decision and Order.
1. The business of McAllister
McAllister Transfer, Inc., is, and has been at all times material
herein, a Nebraska corporation with its principal office at York, Ne-
braska, doing business as a motor vehicle common carrier of intra-
state and interstate shipments and operating under certificates of
authority issued by the Nebraska State Railway Commission and the
Interstate Commerce Commission. During all times material herein,
McAllister has engaged in the business of transporting general com-
modities by motor vehicle over specified regular routes between
Omaha, Nebraska; Grand Island, Nebraska; and Council Bluffs,
Iowa, and during this same period has transported household goods
over specified irregular routes to points and places in the States of
Iowa, Kansas, Colorado, Missouri, and Illinois.
During the calendar year 1952, McAllister's gross revenue amounted
to $149,941.11. Of this sum $133,479.45 was attributable as follows :
110 NLRB No. 224.
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$12,000 derived from interstate shipments handled only by McAllister;
$66,094.48 in revenue from shipments interlined 1 with interstate
motor carriers , including Union Freightways, Watson Bros. Trans-
portation Company, and Red Ball Transfer Company; 2 and $55,384.97
derived from freight transported by McAllister for business enter-
prises, other than retail stores, producing or handling goods destined
for out-of-State shipment or performing services outside the State in
which the firm is located when such goods or services are valued at
$50,000 a year.
During the 12-month period from July 1, 1953, to June 30, 1954,
McAllister's gross revenue was approximately $153,000. Of this sum,
approximately $136,500 was attributable as follows: Approximately
$10,000 derived from interstate shipments handled only by McAllister ;
approximately $74,000 derived from shipments interlined with inter-
state motor carriers, including Freightways, Watson, and Red Ball;
and approximately $52,500 derived from freight transported by
McAllister for business enterprises, other than retail stores, producing
or handling goods destined for out-of-State shipment or performing
services outside the State in which the firm is located where such goods
or services are valued at $50,000 a year.
At all times material herein, Union Freightways has been a Nebraska
corporation, with its general offices at Omaha, Nebraska, engaged as
a motor vehicle common carrier of interstate shipments, operating in
nine States under certificates of authority from the Interstate Com-
merce Commission. During 1952, Freightways' gross annual revenue
was $7,671,702, and its volume of business at its Omaha, Nebraska,
terminal was $2,101,057. During 1953, Freightways' gross annual
revenue was $8,634,568, and its volume of business at its Omaha,
Nebraska, terminal was $2,087,092.
At all times material herein, Watson Bros. Transportation Com-
pany has been a Nebraska corporation, with its principal offices at
Omaha, Nebraska, engaged as a motor' vehicle common carrier of
interstate shipments, operating in 20 States under certificates of
authority from the Interstate Commerce Commission. During 1952,
Watson's gross annual revenue was $21,913,714, and its volume of
business at its Lincoln, Nebraska, terminal was $846,290. During
1953, Watson's gross annual revenue was $25,536,435, and during the
period from July 1, 1953, to June 30, 1954, at its Lincoln, Nebraska,
terminal was $876,746.
At all times material herein, Red Ball Transfer Company has been
a Nebraska partnership, with its general offices at Omaha, Nebraska,
I "Interlining" of freight means receiving freight from interstate motor carriers for
delivery to its destination , or delivering freight to such carriers for further transportation.
2 McAllister Transfer , Inc., Union Freightways , Watson Bros . Transportation Company,
and Red Ball Transfer Company are hereinafter called McAllister , Freightways , Watson,
and Red Ball , respectively
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1771
engaged as a motor vehicle common carrier of interstate shipments,
operating in five States under certificates of authority from the Inter-
state Commerce Commission. During 1952, Red Ball's gross annual
revenue was $1,830,142, and its volume of business at its Lincoln,
Nebraska, terminal was $445,911. During 1953, Red Ball's gross
annual revenue was $2,319,195.99, and during the period from July 1,
1953, to June 20, 1954, its volume of business at its Lincoln, Nebraska,
terminal was $463,960.18.
From the above commerce data, based on a stipulation of the parties
executed on November 15, 1954, it appears that McAllister' s revenue
derived from interstate shipments handled only by McAllister and
from shipments interlined with interstate motor carriers amounted to
$78,094 for 1952, and $84,000 for 1953-1954, respectively. It also ap-
pears that McAllister's revenue derived from freight transported for
business enterprises, other than retail stores, producing or handling
goods derived for out-of-State shipment or performing services out-
side the State in which the firm is located where such goods or services
are valued at $50,000 a year, amounted to $55,384 for 1952 and $52,500
for 1953-1954, respectively.
In the Edelen Transfer 3 decision, the Board announced that it will
hereafter assert jurisdiction in cases involving transportation com-
panies that operate both intrastate and interstate when the transporta-
tion company derives $100,000 or more in revenue from the interstate
portion of its operations, or when the combined total of revenue de-
rived from the interstate portion of its operations and for the intra-
state portion of its operations that consists of interlining is $100,000
or more. In the instant case, the combined figures for McAllister's
interstate operations and intrastate operations that consist of inter-
lining amount to $78,094 for 1952 and $84,000 for 1953-1954, and are
therefore below the $100,000 now required. Moreover, the Edelen
Transfer standard is exclusive, and the revenue amounting to $55,384
for 1952, and $52,500 for 1953-1954, derived by McAllister from
operations other than its interstate operations and intrastate opera-
tions that consist of interlining may therefore not be added to those
figures.
However, in secondary boycott situations, such as this, the Board
declared in the Jamestown 4 and Earl Vann 5 cases , that it will take
into consideration for jurisdictional purposes not only the operations
of the primary employer, but also the operations of any secondary
employers to the extent that the latter are affected by the conduct in-
3 Edelen Transfer & Storage Co ., 110 NLRB 1881
4 Truck Drivers Local Union No 649, International Brothev hood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL (Jamestown Builders Exchange , Inc ), 93
NLRB 386.
5Local Union No. 830, Brewery and Beer Distributors Dnavers, Helpers, and Platform'
Men, etc ( Earl Vann ), 106 NLRB 405.
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
volved. Applying to the facts of the present case, this broad statement
of the rule, which we adopt and will continue to follow in secondary
boycott situations, it appears that the entire volumes of business of
the secondary employers at each- of the terminals affected by the sec-
ondary boycotts are in considerable -amount, more than ample to war-
rant the assertion of jurisdiction. Thus, at Freightway's Omaha ter-
minal where the boycott occurred, the volume of business for 1952 was
$2,101,057 and for 1953 was $2,087,092; at Watson's Lincoln terminal
where the boycott occurred, the volume of business for 1952 was $846,-
290 and for 1953-1954, was $876,746; and at Red Ball's Lincoln termi-
nal where the boycott occurred, the volume of business for 1952 was
$445,911, and for 1953-1954 was $463,960. In making this finding, we
expressly adopt the interpretation of the Jamestown rule by Member
Peterson in his dissenting opinion in the Vann case in which lie took
the view that it is not the particular business between the primary,
employer and the secondary employer at the location affected, but
rather the entire business of the secondary employer at that location
that governs in applying the Board's jurisdictional standards in sec-
ondary boycott situations.6
In conformity with the statement of jurisdictional policy contained
hereinabove, we find that it will effectuate the policies of the Act to.
assert jurisdiction in this proceeding.
2. The sequence of events
McAllister Transfer, Inc., is a motor vehicle carrier which inter-
lines freight with, among others, Union Freightways at Omaha and
Watson Bros. Transportation Company and Red Ball Transfer Com-
pany, at Lincoln. Freightways, Watson, and Red Ball are interstate
carriers, whose employees are represented by certain local unions of
the Teamsters; each is a party to two collective-bargaining agree-
ments I with local unions of the Teamsters, the Respondents herein,
covering groups of dockworkers and over-the-road drivers.
On February 4, 1953, Swaney, Nebraska State chairman of the
Teamsters and president of Teamsters' Local No. 554, accompanied by
Parker, business agent of Local No. 554, and Noble, a representative of
Local No. 784,$ called to see Grebe, general manager of McAllister, at
McAllister's place of business in York, Nebraska. Swaney requested
6 Member Murdock , for the reasons stated in his dissenting opinion in Breeding Transfer
Company, 110 NLRB 493 , would assert jurisdiction over McAllister because of the latter's
role as a link in the interstate transportation of goods Accordingly , Member Murdock
does not find it necessary to resolve the question whether or not the Jamestown ruling
should be broadened to include the entire business of the secondary employer at the loca-
tion affected.
9 The "Iowa-Nebraska Motor Freight Cartage Agreement," herein called the Cartage
Agreement, and the "Central States Area Over-The-Road Motor Freight Agreement,"
herein called the Over-The-Road Agreement.
8 Local No . 784 is not involved in this proceeding.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1773
recognition for the Teamsters as the bargaining representative of
McAllister's employees, and submitted proposed contracts to Grebe.
The contracts were discussed in some detail, although Grebe stated
that he was not empowered to execute a bargaining agreement on be-
half of McAllister. Swaney requested that Grebe communicate with
him within a few days. Grebe did not do so. In the course of this
conference, Swaney told Grebe that he would give McAllister a week,
and possibly a few days more, and that if McAllister did not sign the
contracts it would be "shut off" from interlining freight. On Feb-
ruary 12,1953, in Omaha, Swaney told Brey, a McAllister truckdriver,
that on the next day McAllister would be "shut off" from interlining
freight with other carriers. On the same day, Parker, business agent
of Local No. 554, telephoned Hill, general manager of Freightways,
and told him that McAllister was being "shut off" from interlined
freight. Parker asked Hill whether the freight which McAllister
-normally receives could be given to other carriers, and Hill replied
that it could not.
On February 13, 1953, Morehouse and Nelson, employees of Freight-
ways and members of Local No. 554, ceased notifying representatives
of McAllister that freight had been received by Freightways for
transportation by McAllister. Morehouse testified that he learned of
the dispute between McAllister and the Teamsters that same day, and
that he acted as he did because McAllister was having "labor trouble."
He testified further that Business Agent Parker had called at the office
where he (Morehouse) was employed and there told several employ-
ees, including Morehouse, that McAllister was having labor trouble
and was "N. G." Morehouse reported this to Traffic Manager Hill.
When Morehouse asked Hill what he should do with freight for Mc-
Allister, Hill told him to make certain that it did not get into the hands
of another carrier. Nelson, a Freightways freight checker, testified
that he (Nelson) refused to accept shipments for McAllister because
under the terms of the Cartage Agreement he was "not obligated to
handle unfair merchandise." On February 16, 1953, Freightways
posted a notice to its employees, as follows :
Our Company is not having a labor dispute with any labor
union. As a common carrier holding authorities under Federal
and State laws, we are required to transport all commodities
properly tendered to us.
Therefore, we direct all of our employees to handle freight re-
ceived by us, without discrimination as to shippers or motor car-
riers who may be interlining freight with us. This includes
freight which we originate and is destined beyond our line in
which specific routing is furnished to us by the shipper.
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, Morehouse and Nelson continued to disregard this notice.
Freightways neither rescinded the notice nor disciplined these em-
ployees. Except for a few shipments which were handled by super-
visory personnel, Freightways' business with McAllister was
suspended.
At about the same time, similar situations developed at Watson and
Red Ball.
Thus, on February 13, 1953, Neff, a Watson employee, ceased both
accepting freight from McAllister and delivering freight to McAllis-
ter. Thereupon, McKay, Watson's manager, telephoned Blanken-
ship, secretary-treasurer and business manager of Local No. 608, and
inquired whether "McAllister had been shut off." Blankenship not
only replied in the affirmative, but added that Watson was "not sup-
posed to interline freight with McAllister."
The record shows further that at a union meeting prior to February
8, 1953, Blankenship had explained to the members the desirability of
getting nonunion operations organized; that at the meeting on Feb-
ruary 8, Blankenship informed the members that the Teamsters had
met with McAllister, and discussed the signing of an agreement, that
under the contracts, it was no violation of their contracts if they re-
fused to handle "unfair goods" and that they would not be discharged
if they refused to handle such goods. A few days later, Blankenship
telephoned Banning, Watson's dock foreman, and advised him that
McAllister would be "shut off" from interlined freight. The inci-
dents of February 13, already described, followed in the course of
these events.
Watson posted a notice like the one posted by Freightways, but the
interlining of freight between Watson and McAllister remained sus-
pended.
The events at Red Ball on February 13, 1953, were similar. Fahrn-
bruch, an employee and member of Local No. 608, refused to check
freight to McAllister. He testified that he refused to handle Mc-
Allister on his own personal choice. However, Lundquist, a Mc-
Allister truckdriver, testified that Fahrnbruch told him (Lundquist)
that if he were a union member and he handled unfair freight, he was
liable for "discharge" from the Union. After the interlining of
freight was suspended at Red Ball, Manager Willey of Red Ball tele-
phoned Union Official Blankenship and asked him why Fahrnbruch
was not loading McAllister freight, and Blankenship replied that Mc-
Allister had been "cut off." Moreover, on February 17, when Willey
asked Fahrnbruch why he could not load freight for McAllister,
Fahrnbruch said he could not load the trucks because the Union gave
him orders not to load the trucks.
In the meantime, on February 16, Red Ball posted a notice like the
one posted by Freightways and Watson. However, except for a ship-
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. .1775
ment of clothing and medicine to a children's home, Fahrnbruch did
not handle McAllister freight.
The interruption of business between McAllister and Freightways,
Watson, and Red Ball continued until April 22, 1953, when an in-
junction was issued under Section 10 (1) of the Act.
3. The contract provisions
The Cartage Agreement, as originally negotiated, provided in
relevant part :
ARTICLE IX. (a) It shall not be a violation of this contract
and it shall not be cause for discharge if any employee or em-
ployees refuse to go through the picket line of a union or refuse
to handle unfair goods. Nor shall the exercise of any rights per-
mitted by law be a violation of this contract.
(b) The term "unf air goods" as used in this Article includes,
but is not limited to, any goods or equipment transported, inter-
changed, handled, or used by any carrier, whether party to this
agreement or not, at whose terminal or terminals or place or
places of business there is a controversy between such carrier or
its employees on the one hand, and a labor union on the other
hand; and such goods or equipment should continue to be "un-
fair" while being transported, handled or used by interchanging
or succeeding carriers, whether parties to this Agreement or not,
until such controversy is settled.
(There shall be a record understanding that, in the event the
decision' of the National Labor Relations Board in the Conway
case [Conway's Express, 87 NLRB 972] is sustained or prevails
an appeal to the higher Federal Courts, this Article will be rene-
gotiated and rewritten to provide the Union with the maximum
of protection afforded by such decision.)
The court decision in the Conway case was issued on March 24,1952 .1
Thereafter, article IX of the Cartage Agreement was revised by the
deletion of the paragraph in parentheses quoted above, and the addi-
tion of a new sentence to the initial paragraph of the article which
reads as follows :
The Union and its members, individually and collectively, re-
serve the right to refuse to handle goods from or to any firm
or truck which is engaged or involved in any controversy with
this or any other Union; and reserve the right to refuse to accept
freight from or to make pickups where picket lines, strikes,
walk-outs or lock-outs exist.
e Rabouin d/b/a Conway 's Express V. N. L. R B , 195 F 2d 906 (C. A. 2).
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This revision did not become effective until April 8, 1953-2 weeks
before the injunction under Section 10 (1) was issued.
4. The pleadings and the Trial Examiner 's findings of fact and con-
clusions of law
The complaint alleged in substance that during February 1953,
and thereafter, the Respondents engaged in, and induced and en-
couraged the employees of Freightways, Watson, and Red Ball to
engage in, strikes and concerted refusals in the course of their em-
ployment to transport or otherwise handle goods with the object of
forcing or requiring Freightways, Watson, and Red Ball to cease do-
ing business with McAllister, and forcing or requiring McAllister to
recognize or bargain with the Respondents as representatives of
McAllister's employees, although the Respondents had not been cer-
tified as such representatives under Section 9 of the Act. The com-
plaint alleged further that the Respondents, by engaging in such con-
,duct, violated Section 8 (b) (1) (A), (4) (A), and (4) (B) of the Act.
The answer admitted the jurisdiction of the Board and that the
Respondents are labor organizations within the meaning of the Act,
but denied the commission of unfair labor practices, and denied spe-
-cifically that the Respondents had induced or encouraged employees
of Freightways, Watson, or Red Ball to engage in concerted refusals
in the course of their employment to transport or handle goods with
the objects proscribed by the Act. The answer further denied that
the Respondents demanded that McAllister recognize the Respondents
as the collective-bargaining representatives of McAllister's employ-
ees, although they had not been certified as such under Section 9 of
the Act.
The Trial Examiner found that although the Respondents denied
that they had induced or encouraged any of their members not to
handle McAllister freight, the record established factually, based on
the statements of Local No. 554 President Swaney to McAllister truck-
,driver Brey, of Business Agent Parker of the same Local to Freight-
ways' traffic manager, Hill, and of Business Agent Blankenship of
Local 608 to Watson's dock foreman, Banning, that the Respondents
were taking steps to suspend the interlining of McAllister freight.
The Trial Examiner found further that Parker had stated to several
of Freightways' employees that McAllister was having labor trouble
and was "N. G.," and that Blankenship had stated at a membership
meeting of Local No. 608 that there was a labor dispute with McAllis-
ter and that the members had a right under the agreement to cease
handling McAllister freight. The Trial Examiner found additional
corroboration that Local No. 608 had taken steps to suspend the inter-
lining of McAllister freight in the statements by Blankenship to Red
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1777
Ball's manager, Willey, and Watson's manager, McKay, to the effect
that McAllister had been "shut off" or "cut off" from interlined freight.
However, relying on the Conway 10 and Pittsburgh Plate Glass 11
decisions, the Trial Examiner concluded that the provisions of the
Cartage Agreement constituted a meritorious defense to the allega-
tions of the complaint. In arriving at this conclusion, he rejected the
contentions of the General Counsel and McAllister (1) that the Con-
way case was distinguishable in that the contract reserved to the
Union, rather than to the employees individually, the right to refuse
to handle goods of employers involved in labor disputes; (2) that
here, unlike Conway, the secondary employers posted the above-de-
scribed notices, and therefore did not acquiesce in their employees'
failure to handle goods of the primary employer; and (3) that Con-
way involved only an alleged violation of Section 8 (b) (4) (A) while
here there is also an alleged violation of Section 8 (b) (4) (B) flowing
from the same factual situation.
The Trial Examiner also concluded that the Respondents' conduct
was not violative of Section 8 (b) (1) (A) of the Act.
5. Discussion and conclusions
We are concerned here with clauses in collective-bargaining agree-
ments, commonly known as "hot cargo" clauses, which provide that
the Union and employees may refuse to handle goods designated as
"unfair" and that such refusal shall not be deemed a violation of the
contract or cause for discharge. The clauses incorporated in the col-
lective-bargaining agreements between the Respondents and Freight-
ways, Watson, and Red Ball are typical. The Respondents in the
instant case, as part of their efforts to force McAllister's employees to
join their locals, determined that McAllister freight was "unfair."
The Respondents thereupon engaged in a boycott of McAllister
freight through other common carriers, i. e., Freightways, Watson,
and Red Ball, with which they had contracts containing so-called "hot
cargo" clauses. These basic facts were established by the record and
so found by the Trial Examiner. Essentially, then, the basic ques-
tion, as we see it, is whether these clauses constitute a meritorious de-
fense to the complaint which alleges violations of Section 8 (b) (4)
(A) and (B).
In enacting these provisions of the Act, it is clear that Congress
declared a public policy against all secondary boycotts, without dis-
tinction as to type or kind.
10 International Brotherhood of Teamsters, Chauffeurs, 'Warehousemen and Helpers of
America, Local 294, AFL (Henry V. Rabouin d/b/a Conway's Express), 87 NLRB 972.
11 Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, affiliated
with International Brotherhood of Teamsters , Chau f eurs, Warehousemen and Helpers of
America, AFL (Pittsburgh Plate (}lass Company), 105 NLRB 740.
338207-55-vol. 110-113
1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the late Senator Taft stated in the course of the legislative
debate-
The Senator will find a great many decisions . . . which hold
that under the common law a secondary boycott is unlawful.
Subsequently, under the provisions of the Norris-LaGuardia Act,
it became impossible to stop a secondary boycott or any other
kind of a strike, no matter how unlawful it may have been at
common law. All this provision of the bill does is to reverse the
effect of the law as to secondary boycotts. Our committee heard
evidence for weeks and never succeeded in having anyone tell us
any'difference between different kinds of secondary boycotts. SoP
we have broadened the provisions dealing with secondary boy-
cotts as to make them an unfair labor practice.12
More specifically, Senate Report No. 105 on S. 112613 stated :
Because of the nature of certain of these practices, especially
jurisdictional disputes and secondary boycotts and strikes for
specifically defined objectives, the committee is convinced that
additional procedures must be made available under the National
Labor Relations Act in order adequately to protect the public
welfare which is inextricably involved in labor disputes.
Hence, we have provided that the Board, acting in the public in-
terest and not in vindication of purely private rights, may seek
injunctive relief in the case of all types of unfair labor practices
and that it shall also seek such relief in the case of strikes and
boycotts defined as unfair labor practices. [Emphasis added.],
We deem it significant that Congress spoke in unmistakable terms
of the protection of "the public welfare which is inextricably involved"
in such disputes, and pointedly characterized the Board as "acting in
the public interest and not in the vindication of purely private rights."-
It is, of course, a necessary concomitant of the protection of the pub-'
lie welfare that protection is also extended to employees and employ-
ers as well. But it is only-fair to say that such protection to private'
interests was in no way intended by Congress to detract from the pub-
lic interest that constitutes the very foundation of the policies implicit
in these statutory enactments. It has by this time become axiomatic
that the exclusive grant of authority to the Board to prevent unfair
labor practices affecting commerce was to insure that the existence of
some private agreements at odds with the statute does not preclude
a 93 Cong. Rec. 4323.
" Senate Report No. 105, p. 8 (1 Leg. Hist. 414).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1779
the Board from acting in the public interest.14 Moreover, this prin-
ciple is completely consonant, both in spirit and letter, with the broad
rule in other areas holding private agreements invalid if found to con-
travene the public interest.15 Liberty of contract is always subject to
the limitation that the agreement must not be against public policy,"
and if a contractual surrender or modification of such a fundamental
right as that of the individual to contract is contrary to the public in-
terest, it is ineffective."
That the statutory protection of the public interest cannot be waived
by the agreement of the parties is equally well established. The fol-
lowing statement of the rule makes this crystal clear :
It is perfectly clear . . . that the right of the sovereign power
to direct that which is for the welfare of the general public can-
not be abridged by agreements between individuals. Rights con-
ferred as a matter of public policy cannot be waived. . . . The
public good is entitled to protection and consideration; and if, in
order to effectuate that object, there must be enforced protection
of the individual, such individual must submit to such enforced
protection for the public good.18
In the instant case, if any waiver occurred, it was a waiver by the
secondary employers only. The primary employer (McAllister) did
not waive.19 Nor can it be said, in the light of the established law, that
the secondary employers were able to effect a waiver on behalf of the
public. The Board, in these circumstances, should not permit private
parties to accomplish by agreement that which is clearly deemed inimi-
cal to the public interest by congressional enactment.
We are therefore convinced from a careful reading of the legisla-
tive history and from an analysis of the established principles of law,
that Section 8 (b) (4) (A) and (B) was specifically intended to pro-
tect the public interest, and that under those circumstances the sec-
ondary employers could not, as a matter of law, waive the provisions of
the Act which effectuate that policy. Accordingly, we anchor our con-
14 Amalgamated Utility Workers v. Edison Co., 309 U. S. 261, 264 , 267, 269 ; N. L. R. B.
v. General Motors Corp ., 116 F. 2d 306 (C. A. 7).
Section 10 (a) of the Act provides that the power of the Board to prevent unfair labor
practices "shall not be affected by any other means of adjustment or prevention that has
been or may be established by agreement , or otherwise." The courts have held this power
to be exclusive . See Amazon Cotton Mill Co. v. Textile, Workers Union, 167 F. 2d 183
(C. A. 4).
See, for example , Steele v. Louisville & Nashville Railway Co., 323 U. S. 192.
18 Adkins V. Children 's Hospital, 261 U. S. 525.
17 Cameron v. International Alliance, 97 A. L. R. 594.
is 12 Am. Jur. Sec. 166 ; Bowersock v. Smith, 243 U. S. 29 ; Grandview Inland Fruit
Co. V. Hartford Fire Insurance Co., 109 A. L. R. 1472; Short v. Bullion-Beck Co., 45
A. L. R. 603.
18 It is patent from the expressions of Senator Ellender ( La.) and Senator Ball ( Minn.),
among others , that Congress also had in mind the plight of the primary employers who
were the victims of secondary boycott. See 93 Cong . Rec. 4255 ( 2 Leg. Hist . 1055, 1056)
93 Cong. Rec . 1351 ( 2 Leg. Hist. 1351).
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sideration of the issue as to the legality of the "hot cargo" contracts on
that major premise.
We note that the General Counsel in his oral argument before the
Board went beyond his more limited position before the Trial Exam-
iner in which he attempted to distinguish this case from the Conway
and Pittsburgh Plate Glass cases. In his oral argument, the General
Counsel contended that the instant contracts constitute the very in-
ducement for the precise object that Congress intended to prohibit;
that Congress deliberately banned the inducement or encouragement
in Section 8 (b) (4) (A) and (B) outright, and did not say that this
is proscribed unless there is a contract provision permitting it to
occur, and that if it had intended the latter it would have done so;
that Congress was concerned with the public interest and was not
according private rights; that the "hot cargo" contract itself amounts
to an inducement or encouragement repugnant to the provisions of
the Act; that under this doctrine the types of boycotts which Congress
clearly intended to outlaw can be revived; that no doctrine of waiver
should be applied whereby one party can waive as to all, including the
public; and that if any doubt remains as to the public nature of the
right, one need only look to the legislative debate to be convinced that
the primary consideration was the public welfare.
We find considerable merit in the General Counsel's present position.
It is contended on the part of the Respondents that during the
course of the legislative debate, no proposals to outlaw contract clauses
such as are involved here were specifically considered, and that there-
fore it may be inferred therefrom "that Congress simply did not touch
upon this subject or legislate one way or another concerning the
legality of such agreements." However, this contention overlooks
the existence of the policy of the Board at the time when the 1947
amendments to the Act were adopted which was clearly and unmis-
takably against giving effect to contracts which thwarted the broad
objectives of the Act. It is therefore reasonable to believe that Con-
gress was familiar with this well-established policy and for that
reason, among others, found it unnecessary to state in the text of
the Act that the terms of a collective-bargaining agreement which
attempt to evade the proscriptions of the Act shall not constitute a
defense to conduct clearly outlawed by the Act. Indeed, if one
examines the structure of the Act, one cannot help but agree with the
General Counsel in his argument that if Congress had intended to
immunize this conduct in instances where the contract permits it, it
would have drafted the secondary boycott proscriptions by providing
that it shall be an unfair labor practice unless the contract validates
such conduct. Instead, both in the plain language of the statute and
the patent background of opposition to secondary boycotts in general
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1781
and "hot cargo" clauses in particular," it becomes readily apparent
that Congress had not the slightest intention to carve out an exception
in favor of the contracts in question.
That Board policy at the time these amendments were considered
was unalterably opposed to the effectuation of contracts that contra-
vened the objectives of the Act goes without question. Thus, the
Supreme Court held that the Board properly refused to recognize as
a defense to a refusal to bargain charge a number of individual con-
tracts negotiated with individual employees before there was a col-
lective-bargaining representative." Similarly, the Board with court
approval, not only set aside contracts which it deemed contrary to the
policies of the Act but also found employers guilty of unfair labor
practices when such employers attempted to give effect to such con-
tracts 22 This policy also continued to be followed by the Board with-
out change or diminution under the amended Act. The only singular
exception was the one created in the case of the "hot cargo" agree-
ments. Thus, the Board ruled out as illegal, contracts which require
employers to give preferential treatment in hire and tenure to union
members 23 and contracts which require seamen to be hired through
hiring halls.24 In the IT U cases, where the union attempted to cir-
cumvent the closed shop prohibition of the Act by signing only con-
tracts which could be cancelled on 60 days' notice, the Board held
that the union's purpose was to circumvent the ban on the closed shop
by making its contracts of such short duration that it could cancel
them in the event any nonunion applicants for employment were
hired25 Similarly, the Board has held, for example, that unions may
not be asked to waive their right to be present in the adjustment of
grievances as provided in Section 9 (a), the rationale being that the
waiver by the union is ineffective because it means foregoing a right
granted under the statute 2e
It seems plain to us that if we are to administer the Act fairly, we
cannot permit an exception to this firmly established policy to persist
in the so-called "hot cargo" cases. The same policy that has prevailed
throughout the years with respect to employer unfair labor practices
should continue to be in effect with respect to union unfair labor prac-
tices. As it is clear that employers cannot by agreements evade the
20 93 Cong. Rec. 5065 (2 Leg. Hist. 1380).
sm J. I. Case v. N. L. R. B., 321 U. S. 323; National Licorice Co. v. N. L. R. B., 309 U. S.
350
23 N. L. R. B. v. Winona Textsle Mills, 160 F. 2d 201 (C. A. 8) ; N. L. R. B. v. Reed &
Prince Manufacturing Co., 118 F. 2d 874 (C. A. 1) ; Hartsell Mills Co. v. N. L. R B., 111
F. 2d 291 (C. A. 4) ; Scripto Manufacturing Company, 36 NLRB 411; Poultrymen's Serv-
ice Corporatson, 41 NLRB 444.
' See, for example, American Export Lines, Inc., 81 NLRB 1370.
24 National Maritime Union of America, 78 NLRB 971. enfd. 175 F. 2d 686 (C. A. 2),
cert. denied 338 U. S. 954.
ffi International Typographical Union, et at., 87 NLRB 1418, at p. 1421.
N Bethlehem Steel Co. (Sparrows Point Dwision), 89 NLRB 341.
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statutory provisions , so it should be clear that unions cannot do like-
wise. To permit by an obvious device such as the "hot cargo" clause
to nullify the provisions outlawing secondary activity on the part of
unions, is to be derelict in our duty to enforce the Act as Congress
wrote it, and , indeed, to write in a double standard into our adminis-
trative policy. Moreover, if anything is clear from the congressional
expression , it is the patent desire of the legislature to eliminate sec-
ondary boycotts as they manifested themselves at the time . A thor-
ough and painstaking examination of the entire problem leads us to
the conclusion that if we are to carry out the mandate under which we
act, we must face the issue squarely and resolve this problem without
equivocation, and in the public interest which at all times remains
paramount . Our duty, as we see it, requires that we reverse the Con-
way doctrine, and hold that contract clauses of the character here in
issue do not constitute a valid defense to a complaint alleging a vio-
lation of Section 8 (b) (4) (A) and (B) of the Act.
As we have found that the contracts between the Respondents and
the secondary employers were in contravention of the declared pub-
lic policy of the Act, and therefore did not constitute, as a matter of
law, a valid defense to the allegations of the complaint that the Re-
spondents violated Section 8 (b) (4) (A) and (B ) of the Act, we deem
it unnecessary to consider the Trial Examiner 's disposition of the con-
tentions of the General Counsel and the Charging Party which
sought to distinguish this case from the Conway and Pittsburgh Plate
Glass cases . We have already stated without equivocation that we
disagree , as a matter of law, with the doctrine enunciated in those
cases.
We cannot pass without comment , however, the Trial Examiner's
finding, based on the Pittsburgh Plate Glass decision, that by enter-
ing into the Cartage Agreement, the secondary employers consented
to the "hot cargo" provisions which, in substance, excluded, according
to the Trial Examiner , work on such goods from the required job
duties of the employees, and thereby placed such work outside the
course of their employment . The reference here evidently is to the
sentence in Pittsburgh Plate Glass which states , "Nor was their em-
ployees' refusal to handle Pittsburgh freight `in the course of . . . em-
ployment' within the meaning of Section 8 (b) (4) (A) for that em-
ployment as defined by the contracts excluded from the required job
duties work on `unfair goods ."' We regard this construction of the
phrase "in the course of their employment" as wholly untenable. As
we read the secondary boycott provisions of the Act, the intent of
Congress was to distinguish between employees in their capacity as
employees , and employees in their capacity as private consumers. We
are of the opinion that there is no basis for injecting a novel interpre-
tation of a simple phrase in order to bolster the Conway rationale.
INTERNATIONAL BROTHERHOOD -OF TEAMSTERS, ETC. 1783
There is nothing esoteric about the language. The conference com-
mittee used language which had achieved a definite meaning in other
areas of the administrative process and jurisprudence 27 Any other
interpretation is unwarranted.
We find that the Respondents induced and encouraged the employees
of Freightways, Red Ball, and Watson to engage in a concerted re-
fusal in the course of their employment to handle McAllister freight,
and the purpose of this activity was unlawful under Section 8 (b)
(4) (A) of the Act as one objective of such inducement was to force
these secondary employers to cease doing business with McAllister.
We find further that the Respondents' activity was also unlawful un-
der Section 8 (b) (4) (B) as another one of the objectives was to
force McAllister to recognize a union which had not been certified as
the representative of its employees under Section 9 of the Act 28 To
the extent that the Conway and Pittsburgh Plate Glass decisions are
inconsistent with our holding herein, we would overrule them29
It seems patent to us that our dissenting colleagues are taking too
narrow a view of the proscriptions against secondary boycotts which
Congress enacted into law. By the device of emphasizing only one
of the evils of the secondary boycott, the plight of the secondary em-
ployer, they would have us believe that that is the only evil. Of
course, Congress was mindful of the plight of the secondary em-
ployer whom it described as the injured third party. But Congress
was equally, if not more, concerned with the overall detriment to the
general public. We have already referred to the expressions of such
concern in the legislative history-which our colleagues apparently
overlook-and we feel obliged to remind them of the basic intent of
the Act, which is "to define and proscribe practices on the part of
labor and management which affect commerce and are inimical to the
general welfare, and to protect the rights of the public in connection
with labor disputes affecting commerce." 30 Surely, Section 8 (b)
(4) (A) and (B) which proscribe secondary boycotts are not unique
exceptions to this basic legislative intent.
Once these basic considerations are overlooked, it is by no means
surprising that our dissenting colleagues fall into the error of dis-
regarding the well-established axiom of jurisprudence that private
agreements found inimical to the public interest will not be effectu-
ated.31 Similarly, when they say that "there is no violation in the
,w See, for example, Lawley cf Son v. South, 140 F. 2d 439 (C. A. 1), cert. denied 322
U. S. 746; Voehi v. Indemnity Insurance Company, 288 U. S. 162 ; Lukon v . Pennsylvania
Railway, 131 F. 2d 327 (C. A. 3).
21 As we deem the remedy sufficient, we shall not pass on the 8 ( b) (1) (A) allegations of
the complaint.
^ We are of the opinion that the Second Circuit in the Conway case did not squarely
pass on the doctrine that a collective-bargaining agreement can exempt a union from the
operation of Section 8 (b) (4) (A) and (B) of the Act.
ao Section 1 (b) of the Act.
+i Adkins v . Children's Hospital, supra.
1784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first instance because of his [the secondary employer's] consent to the
conduct of his employees and their union," they are losing sight of
the fact that the proscribed conduct envisaged by these sections of the
Act is the conduct of the union in engaging in, or inducing or en-
couraging the employees of any employer to engage in, a strike or a
concerted refusal. No amount of ingenuity, it seems to us, can change
the simple fact that a "hot cargo" contract is nothing more than a
device to immunize in advance the very conduct which Congress in
response to a dire public need sought effectively to eliminate. To
permit a form of legal sophistry to make possible so flagrant a subter-
fuge for continuing this well-known abuse in labor disputes is to make
a mockery of one of the most significant provisions which Congress
wrote into the Act.
We have already pointed out that the Board has never in the past
permitted employers to evade the statutory provisions by contracts
which immunize in advance a violation of the Act, and that the so-
called Conway doctrine creates, in effect, a double standard by which a
union can obtain precisely the same sort of advance immunization
which an employer cannot. It is not an answer, in our opinion, that
here "the protection is granted to the secondary employer, as such" for
that is not what the "hot cargo" contract does-it attempts to grant
immunity from an unfair labor practice violation to the union which
but for such contract would be adjudged a violator of the secondary
boycott proscriptions. Nor is it an answer to say that Section 8 (b)
(4) (A) does not specifically ban a waiver. On the contrary, it may
be argued with much greater force and persuasion that as there is no
language stating that the activity proscribed ceases to be unlawful if
taken pursuant to contract, Congress deliberately refrained from
passing any such qualification. To support this view, one need only
look to Section 8 (a) (3) where Congress, desiring to limit the pro-
hibitions of that section, inserted a specific provision to that effect.
Our dissenting colleagues refer to the Conway and Pittsburgh
Plate Glass cases and two district court cases as authority so settled
as to preclude any further evaluation of the principles involved in
those cases at this time. We do not agree. We deem it of the-great-
est importance to the sound administration of the Act to state our
opinion in clear and unequivocal terms. It is no slight matter for
the Board to write in a double standard in the Act-one for employ-
ers and another for unions-as the so-called Conway doctrine has
done. We believe that our dissenting colleagues place too much re-
liance on the decision of the Second Circuit in the Conway case which,
in our opinion, did not come to grips with the crucial problem as we
.have described it.
Turning to the Chairman's concurring opinion, we feel constrained
to state that we cannot share with him the feeling that while "a vol-
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1785
untary act of boycott of this kind by an employer works no less a
hardship on the primary employer, on his employees, and on the
general public," this is made possible by what "may be characterized
as a loophole in the statute." We perceive no such "loophole" in the
Act. In our opinion, Congress was fully aware not only of the abuse
of secondary boycotts in labor disputes, but of the very type of "hot
cargo" provision here in the issue.' The authors of the bill made it
crystal clear that the very thing they proposed to outlaw included
activity engaged in under the protection of a "struck work" or "hot
cargo" clause sz If any portion of the 1947 amendments to the Act
received full and thorough consideration, it was that portion of the
Act which deals with the proscription on secondary boycotts.
While we disagree with our dissenting colleagues' major position
based on the so-called Conway doctrine, we agree with them that there
is no merit in the Chairman's attempt to distinguish the instant case
from Conway on the ground that here the secondary employers did
not acquiesce in the refusal of the employees to handle McAllister
freight because the secondary employers posted notices that they
wished their employees to handle the freight. We note that the sec-
ondary employers not only took no action with respect to such notices
and requests but that during the period that they were disregarded,
article IX of the Cartage Agreement was actually revised with the
avowed purpose of providing the Union with even stronger advance
immunization against a violation. We also feel that the Chairman
has misplaced his reliance on the General Counsel's position in this
case. We have already stated in detail the General Counsel's present
position which clearly and unmistakably abandons any possible ef-
fort to distinguish the instant case from Conway. Instead, the Gen-
eral Counsel unequivocally takes the position, which we have taken,.
that the "hot cargo" clauses are contrary to public policy and there-
fore no defense to the violation found herein.
Nor'do we see any basis for the Chairman's comments about resist-
ing the temptation to devise legal precepts to accommodate moral
judgments or the essentiality for recognizing that the Board is not
primarily concerned with the legality of contracts insofar as they
govern the private rights of the parties. It should be clear to anyone
who is familiar with the facts of this case that we are not dealing
here with an academic question. As the Chairman himself points
out later in his concurring opinion, "we are confronted here with a
case in which all of the elements of a violation-inducement, refusal,
and unlawful objective-have been proved." The reason why we are
required to pass on the validity of the "hot cargo" clauses is because'
8' See Sen. Rep. No. 105, 80th 'Gong, 1st Sess., pp 21, 22, 1 Leg. Hist. 427, 428, House
Hearings ,-256-347; 702-741 ; 1840-1849; Senate hearings on S. 55 and S. J. Res. 22, pp.
2304-2319.
1786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are offered as a defense to the very conduct which he concludes
violated Section 8 (b) (4) (A) and (B) of the Act. If this is a pre-
occupation with "moral judgment" or with "private rights of the
parties," then every instance in which the Board has passed on defenses
to unfair labor practice complaints based on contract provisions in-
tended to immunize in advance violations of the Act should be ac-
corded the same characterization. Because we share with him the
conclusion that the Respondent had violated Section 8 (b) (4) (A)
and (B) of the Act, we necessarily feel constrained'to pass on the
validity of the "hot cargo" clauses offered as a defense for the :Re-
spondent's conduct, and to make the unequivocal finding that such
clauses are contrary to public policy and cannot therefore serve as a
defense.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Unions, set forth above, occurring
in connection with the operations of McAllister and the carriers de-
scribed in the Intermediate Report, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent Unions violated Section 8 (b)
(4) (A) and (B) of the Act, as set forth above, we shall order them
to cease and desist from such conduct. We shall also order that the
Respondent Unions take certain affirmative action designed to effectu-
ate the policies of the Act.
CONCLUSIONS OF LAw
1. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, General Drivers and Helpers
Local No. 554, AFL, and Chauffeurs, Teamsters and Helpers Local
No. 608, AFL, are labor organizations within the meaning of Section
2 (5) of the Act.
2. By inducing and encouraging employees of Union Freightways,
Watson Bros. Transportation Company, and Red Ball Transfer Com-
pany to engage in a strike or concerted refusal in the course of their
employment to handle freight transported by, and freight trans-
ported to, McAllister Transfer, Inc., where an object thereof was to
force or require their employers to cease doing business with McAllis-
ter Transfer, Inc., and to force or require McAllister Transfer, Inc.,
to recognize or bargain with the Respondent Unions as the repre-
sentatives of its employees although the Respondent Unions were not
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1787
certified as the representatives of such employees under the provi-
sions of Section 9 of the Act, the Respondent Unions have engaged
in and are engaging in unfair labor practices within the meaning of
Section 8 (b) (4) (A) and (B) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, General Drivers and Helpers Local No. 554, AFL, Omaha,
Nebraska, and Chauffeurs, Teamsters and Helpers Local No. 608,
AFL, Lincoln, Nebraska, and their officials and agents, shall:
1. Cease and desist from inducing and encouraging the employees
of Union Freightways, Watson Bros. Transportation Company, and
Red Ball Transfer Company, or any other employer, to engage in a
strike or concerted refusal in the course of their employment to work
on or handle freight transported by, and freight transported to,
McAllister Transfer, Inc., where an object thereof is (a) to force or
require Union Freightways, Watson Bros. Transportation Company,
and Red Ball Transfer Company, or other employers, to cease doing
business with McAllister Transfer, Inc.; (b) to force or require
McAllister Transfer, Inc., to recognize or bargain with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, General Drivers and Helpers Local No. 554, and Chauf-
feurs, Teamsters and Helpers Local No. 608, AFL, as the representa-
tives of its employees unless and until such labor organizations have
been certified as the representatives of such employees under the pro-
visions of Section 9 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their Omaha and Lincoln, Nebraska, business offices,
respectively, copies of the notice attached hereto marked "Appendix
A." 11 Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being duly signed by the offi-
cial representatives of the Respondents, be posted by said Respondents
immediately upon receipt thereof, and maintained by it for a period
of sixty (60) consecutive days thereafter, in conspicuous places in-
cluding all places where notices to members of Respondents are custo-
marily posted. Reasonable steps shall be taken by said Respondents
U In the event that this Order is enforced by a decree of a United States Court of Ap-
peals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1788 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Seventeenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondents have taken to comply herewith.
CHAIRMAN FARMER, concurring :
I agree upon the facts as found by the Trial Examiner that the
Respondents violated Section 8 (b) (4) (A) and (B) of the Act.
However, I do not find it necessary, or even appropriate, to overrule
the Board's Conway decision; nor would I go so far as to character-
ize the "hot cargo" provision of the contract as being contrary to
public policy.
It is essential that the Board should always recognize that we are
not primarily concerned with the legality of contracts insofar as they
govern the private rights of the parties. Nor is the Board the guard-
ian of the public welfare, except to the extent we are charged with
responsibility for administering a particular statute. Judges must
resist the temptation to devise legal precepts to accommodate their
moral judgments that this conduct or that is either laudable or
indefensible.
My majority colleagues say, as I construe their position, that a "hot
cargo" clause is at war with the secondary boycott provisions of Sec-
tion 8 (b) (4), and therefore must be struck down as a matter of
public policy. This view, however, glosses over the plain -language
of the statute which makes it an essential element of an unlawful
boycott that the union "engage in, or induce or encourage . . . em-
ployees ._ to engage in a strike or a concerted refusal" to handle
the goods of another employer. I must assume that my majority
colleagues agree with the decisions which hold that there is no viola-
tion of Section 8 .(b) *(4) where an employer, at the request of a union
unaccompanied by threats or direct appeals to employees, voluntarily
agrees to.boycott the goods of another employer with whom the union
has a primary dispute.34 In that situation there is admittedly no,
violation since there has been no strike and no inducement of em-
ployees. Yet, a voluntary act of boycott of this kind by an employer
works no less a hardship on the primary employer, on his employees,
and on the general public. While this may be characterized as a loop-
hole in the statute, it is for the Congress, not the Board, to close it,
if conduct of this character is thought to endanger the public welfare.
I am unable to perceive a measurable difference in principle between
the boycott which I have just described, carried out on an ad hoc oral
basis, and- a written contract provision, such- as we have here, which
amounts to nothing more or less than the agreement of the secondary
04 dealright Pacific, Ltd., 82 NLRB 271.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1789
employer to boycott so-called "hot cargo." - I suppose that what an
employer may do he may also agree in advance to do. Yet, the logic
of my majority colleagues' position would apply with equal validity in
both situations.
Likewise, my minority colleagues appear to me-to be preoccupied
with the contract provision rather than the entire course of conduct
in this.case. They would treat the private agreement as supreme, take
the word as outweighing the deed, and discard as irrelevant the actual
conduct of the parties.
If their view were adopted, the Board would place itself in the
posture of championing boycott clauses and affirmatively enforcing
them as between the parties. This is the inevitable result of giving
the agreement crucial weight in evaluating the conduct of the parties,
and refusing to find a violation solely because of the contract's exist-
ence in the face of other evidence which, in my opinion, clearly shows
that all the essential statutory elements of an unlawful boycott are
nevertheless present.
I doubt that public policy requires us to invalidate a "hot cargo"
provision any more than it requires us to raise such a provision to a
dignity which permits it to override other relevant facts. I will as-
sume for the purposes of this case that the secondary employers and
the union could lawfully (insofar as the statute is concerned) contract
for a hot-goods provision, and that they could also mutually abide by
it. Moreover, I will assume that, had they done so, there would have
been no showing of a violation of Section 8 (b) (4). This, I conclude,
is the holding in the Conway case, and since it has court approval, I
would be loathe to disturb it.
I must observe, however, that the holding of the Second Circuit in
that single case seems to have been excessively stressed both by my
colleagues and by the parties at oral argument. Section 8 (b) (4) is
one of the most complex provisions of the statute. It deals with a
wide range of union conduct which has been telescoped into the term
"secondary boycott," a phrase which is convenient for purposes of
ready reference but which provides scant guidance in the decision of
particular cases. Perhaps more than any other, this is a field in
which we should tread with cautious feet in our attempt to mark the
boundaries between conduct which is permissible and that which is
interdicted. I have no doubt that the courts would agree that the
impact of "hot cargo" and related contract provisions upon the appli-
cation of Section 8 (b) (4) in varying factual situations cannot be
resolved by a priori recourse to a sweeping generalization drawn from
a single court decision applying the law to a particular set of facts.
I am convinced that acceptance of the Conway decision would not
dispose of this case. Here, the facts which are set forth in the ma-
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jority decision disclose , and the Trial Examiner found, that the Unions
affirmatively induced and - encouraged their members to refuse to han-
dle McAllister freight . Since this was done in furtherance of an
objective interdicted by Section 8 (b) (4), the conduct here is vio-
lative of the plain and literal language of the section . It is impossi-
ble to say here, as in Conway, that there was. no unlawful "induce-
ment" or "refusal" on the part of the employees to handle McAllister
freight. This is so for the simple reason that the secondary employ-
ers here posted notices to their employees directing them to handle
all freight without discrimination . These notices were posted for the
express purpose of putting employees on notice that they were ex-
pected to handle McAllister 's goods when presented at the docks.
In the face of this affirmative evidence that the employees were act-
ing contrary to explicit instructions, which was not true in Conway,
3 am unable to escape the conclusion that there was a clear "refusal"
by the employees to handle McAllister freight.
Thus , we are confronted here with a case in which all of the elements
of a violation-inducement , refusal, and unlawful objective-have
been proved . The fact that one or more of these essential elements
might have been lacking had the secondary employer adhered to his
contract undertaking to boycott "hot cargo" is not enough to bring
this case within the holding of the Conway decision . The General
Counsel issued the complaint , and tried the case on the theory that
this case was distinguishable from Conway, and I agree with his posi-
tion. Accordingly , I concur in the finding that Respondents have
violated Section 8 (b) (4) (A) and (B).
MEMBERS MURDOCK and PETERSON , dissenting :
Five years ago a majority of the Board , after an exhaustive and
assiduous analysis of the legislative history, held in the Conway
case 35 that 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 a "hot cargo ," "struck work," or
"unfair goods" clause in their collective -bargaining contract. The
Board pointed out that the secondary employers in Conway, by enter-
ing into such a contract , had consented in advance that their em-
ployees could refuse to handle "unfair goods " of any employer in-
volved in a labor dispute with the union , and it therefore followed
that their employees ' failure to handle Conway's goods was not in the
literal sense a "strike" or "refusal" to work as those words are used
in Section 8 (b) (4) (A), nor was any such concerted insubordination
contemplated by the union when it induced the employees to exercise
their contractual privilege.
85 See footnote 6, supra.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1791
Three years later, the Court of Appeals for the Second Circuit af-
firmed the Board's decision in Conway." In so doing, the court indi-
cated that the union could not have committed an unfair labor prac-
tice within the meaning of Section 8 (b) (4) (A) in regard to the sec-
ondary employers involved who had refused to handle Conway's ship-
ments under the terms of the area agreement relating to cargo shipped
by struck employees; and that consent in advance to honor a "hot car-
go" clause is not the product of the union's "forcing or requiring any
employer ... to cease doing business with any other person."
Early last year the Board in the Pittsburgh case" reaffirmed its
holding in Conway. In the Pittsburgh case, the Board found that as
the secondary employers consented to the "unfair goods" provision
of their contracts with the union, their employees' failure to handle
Pittsburgh's goods was not a strike or concerted refusal to work un-
der Section 8 (b) (4) (A) ; that their employees' refusal to handle
Pittsburgh's freight was not "in the course of ... employment"
within the meaning of Section 8 (b) (4) (A), for that employment
as defined by the contracts excluded from the required job duties
work on "unfair goods."
Within the past year, two district courts, in denying injunctions
sought by the General Counsel, cited the Board and court decisions
in Conway and the Board decision in Pittsburgh as supporting their
holding that "hot cargo" contracts are not violative of Section 8 (b)
(4) (A) of the Act.38 Finally, the Trial Examiner in the instant
case, .which clearly involves the same legal issue, relies upon the Con-
way and Pittsburgh decisions as authority for his finding that the
Respondent Unions did not violate Section 8 (b) (4) (A). Indeed,
we do not know of a single court or Board case in in which a contrary
finding has been made.
Despite the consistent body of precedent which has been estab-
lished, Members Rodgers and Beeson would reverse the Board's Con-
way and Pittsburgh decisions, as well as the Trial Examiner's finding
in this case. They dispose of the Second Circuit's decision in Conway
merely by stating that they do not think the court passed squarely
upon the issue, and they make no reference to the district court cases.
Suffice it to say that this comment on the Second Circuit's decision,
seems to us unwarranted, for we believe that the court's holding so
clearly substantiates and approves the views of the Board in Conway
that any further discussion by us is unnecessary. We propose, there-
fore, to concern ourselves here primarily with the specific and de-
a" Rabouin, d/b/a Conway's Empress v. N. L. R . B., 195 F. 2d 906 ( C. A. 2).
87 See footnote 7, supra.
10 Madden v . Local 442 , International Brotherhood of Teamsters, Chau f eurs, Warehouse-
men and Helpers of America, AFL, 114 F. Supp. 932 (D. C. Wis.) ; N. L. R. B. v. Lodge
850, AFL's Machinists and Local 886, AFL's Teamsters, U. S. D. C. E. D. Okla. Oct. 16,
1954.
1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tailed arguments Members Rodgers and Beeson advance to buttress
their position, and not to be diverted by other factually undocu-
mented and legally unsupported comments.
Members Rodgers and Beeson state as their major premise that the
legislative history of the Act makes it clear that Congress interdicted
all secondary boycotts as contrary to public policy; that Section 8 (b)
(4) (A) and (B) was specifically intended to protect the public in-
terest in this regard; and, that in consequence secondary employers
can not waive these provisions. This is substantially the same argu-
ment which was raised by the General Counsel and dissenting Mem-
ber Reynolds in the Conway case, but effectively answered and re-
jected by a majority of the Board. What is more, it seems to us that
the Second Circuit squarely affirmed and adopted the Board's deci-
sion. However, because Members Rodgers- and Beeson made some-
what slightly different arguments and advert to additional portions
of legislative history to support their contrary view, we shall first
consider the relevant legislative history.
The legislative history of Section 8 (b) (4) of the Act, unequivo-
cally reveals the congressional intent to protect neutral or secondary
employers from boycotts. A few examples make this patently clear.
In Senate Report No. 105 on S. 1126, supplemental views,39 the
'following appears :
There appears to be virtually no disagreement as to the complete
injustice of secondary boycotts and jurisdictional strikes or as to
the necessity of giving injured third parties a remedy against their
operation. For the most part, it is the same employer, often with
less than 50 employees, and the farmer or farm -trucker who are
the main victims of this type of racketeering union activity. To
a small storekeeper, or machine shop, picketed out of business by
unions intervening between him and his employees, or to the
farmer prevented from unloading his perishable produce, the
remedy of dealing with the NLRB is a weak reed. [Emphasis
supplied.]
Representative Landis, a proponent of the bill, made the following
remarks : 40
Secondary boycotts engaged in by labor unions to force a third
party, not a party to a primary labor dispute, to force that party
to cease using the products of the employer engaged in the pri-
mary dispute is an activity which should be made illegal. [Em-
phasis supplied.]
89 Senate Report No. 105, supplemental views, p. 54 (1 Leg. Hist. 460).
40 93 Cong. Rec. Al 295
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1793
While the House bill was being considered, Congressman Hartley
said : 41
Now let us see what is in this bill of rights. Let us see if it op-
presses the workingman. . . . This bill guarantees him... .
Sixth. The right to keep on working and getting his pay with-
out ... illegal boycotts and other disputes that do not involve
him and his union or his employer-Section 12 (a) (3) (a).
[Emphasis supplied.]
The late Senator Taft stated in the course of the legislative de-
bate42 immediately before his apparently more sweeping condemna-
tion of the secondary boycotts, as quoted by Members Rodgers and
Beeson :
This provision makes it unlawful to resort to a secondary boycott
to injure the business of a third person who is wholly uncon-
cerned in the disagreement between an employer and his employ-
ees. [Emphasis supplied.]
Although obviously not part of the 1947 legislative history, we
think President Eisenhower's message to Congress on January 11,
1954, proposing legislative changes in the Act, confirms our interpre-
tation of the intent and reach of the existing statutory regulation of
secondary boycotts. Thus, the President stated :
The prohibitions in the Act against secondary boycotts are de-
signed to protect innocent third parties from being injured in
labor disputes that are not their concern. The true secondary
boycott is indefensible and must not be permitted. The Act must
not, however, prohibit legitimate concerted activities against
other than innocent parties. [Emphasis supplied.]
We think it manifest from the foregoing, as well as many other
portions of the legislative history, that when Congress referred to the
public's interest in regulating secondary boycott provisions, it was not
speaking in terms of the public interest at large or in a vacuum, but
as it was directly related to the specific activities under consideration.
We think Congress said that as to secondary effects arising from labor
disputes, it is in the public interest to protect the neutral or secondary
employer, not a party to the labor dispute between the primary em-
ployer and his employees (or their representative), who is the unfor-
tunate and helpless victim, involuntarily involved but adversely af-
fected by the dispute. We know of nothing in the Act or its legislative
history to support the proposition that Congress intended to extend
protection to the primary employer who is one of the direct parties to
41 93 Cong . Rec. 3535.
47 93 Cong . Rec. 4323
338207-55-vol 110-114
1794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and intimately involved in, the labor dispute, having power to extri-
cate himself if he so decides.
But, say Members Rodgers and Beeson, as did dissenting Member
Reynolds in Conway, the secondary employers cannot by contract
waive the statutory protection given to them in the public interest. In
our opinion, this view misconceives the nature of the protection
granted to secondary employers by Section 8 (b) (4) (A). We think
they err in referring to "hot cargo" clauses in contracts between sec-
ondary employers and unions as constituting a waiver by the second-
ary employers. Thus, we do not believe that there is a question of
waiver of statutory protection involved here, because Section 8 (b)
(4) (A) protects secondary employers against "strikes" and "re-
fusals" to work and it seems plain that there can be no such strike or
refusal with regard to particular work where the employer has ex-
cused his employees in advance from performing such work. A strike
is the concerted withholding of labor for the purpose of obtaining the
employer's accession to a demand which he is resisting. It is the em-
ployees' cessation of "work at their own volition because of the failure
of the employer to meet their demands.' 141 However, where the em-
ployees' refusal is not in opposition to their employer, but is in keep-
ing with the employer's advance agreement, there is missing the
indispensable prerequisite of a strike, namely, a demand which the
employer resists and in support of which the strike or work stoppage
is called. A refusal to work in which the employer concurs can hardly
be called a strike against him, or even a refusal. Putting it another
way, this is not a case of an employer consenting to a violation of the
Act, but one where there is no violation in the first instance because
of his consent to the conduct of his employees and their union.
However, even assuming that by entering into a contract containing
a "hot cargo" clause it can be said that the secondary employer has
waived the statutory protection to which he would otherwise be en-
titled, we do not know anything in Section 8 (b) (4) (A) or its legis-
lative history which proscribes such a waiver. Members Rodgers and
Beeson apparently consider the situation here analogous to cases
where (1) the Board and courts have held that employees cannot by
individual contracts waive the benefits to which they would be entitled
under the collective agreement of their statutory representative be-
cause the very purpose of providing by statute for the collective agree-
ment is to supersede the terms of separate individual agreements
between employer and employee with terms which reflect the collective
strength and bargaining power, and serve the welfare, of employees
as a group; 44 or (2) the Board has held, quoting Members Rodgers
u N. L. R. B. v. Fansteel Metallurgical Corp , 306 U . S 240, 256.
" See J. I. Case v. N. L. R. B, cited by Members Rodgers and Beeson in footnote 17,
supra. See also, N. L. R. B. v. Reed h Prince Mfg. Co., 118 F. 2d 874 (C. A. 1) ; N. L. R. B.
v. Hopwood Retinning Co., 98 F. 2d 97 (C. A. 2).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1795
and-Beeson , "that unions may not be asked to waive their right to be
present in the adjustment of grievances as provided in Section 9 (a),
the rationale being that the waiver by the union is ineffective because
it means foregoing a right granted under the statute." 46
Regarding the first example, we do not believe it is apposite, be-
cause it is concerned with an attempted waiver by an employee as an
individual of rights and protection given under the Act as a member
of a group. We agree that under such circumstances he cannot waive,
but do not view the example as comparable to the instant situation
where the protection is granted to the secondary employer, as such.
With respect to (2), we think Members Rodgers and Beeson have mis-
stated the rule with regard to the effectiveness of a union's waiver of
its rights under the statute. Despite the fact that under Sections 7
and 13 of the Act the employees' right to strike is protected, it is well
settled that their bargaining representative can enter into a contract
with their employer containing a no-strike clause and if the employees
breach the provision the employer does not violate the Act if he dis-
charges them.46 It can hardly be gainsaid that by executing such an
agreement the employees' right to strike, in effect, has been waived.
Yet, as with respect to the secondary employer's right under Section
8 (b) (4) (A), we know of nothing in Sections 7 and 13 which pro-
scribe this kind of waiver. Having participated in at least one case
upholding the validity of a no-strike clause, under such circumstances,
we presume Members Rodgers and Beeson at least agree with us that
such a waiver is permissible 47
As cogently stated in the Board majority opinion in Conway, "Sec-
tion 8 (b) (4) (A) of the Act prohibits labor organizations from
`forcing or requiring' the participation of neutral employees in sec-
ondary boycotts by use of certain forms of employee pressure, namely,
strikes or work stoppages (either actually engaged in or `induced' or
`encouraged ' by the Union). This section does not proscribe other
means by which unions may induce employers to aid them in effectuat-
ing secondary boycotts; much less does it prohibit employers from
refusing to deal with other persons. . . ." As far as Section 8 (b)
(4) (A) is concerned, the secondary employer is at liberty to refrain
from dealing with any person he chooses. As part of his freedom of
action, when a dispute arises between a union and another person the
employer may defer to the wish of the union that he cease or refrain
45 See Bethlehem Steel Co ( Sparrows Point Division ), 89 NLRB 341 , cited by Members
Rodgers and Beeson in footnote 22, supra.
♦e See for example , Cities Service Refining Corporation , 105 NLRB 797; Northern Crate
t Lumber Company, 105 NLRB 218; Kaiser Aluminum t Chemical Corporation , 104 NLRB
873
44 Kraft Foods Company, 108 NLRB 1164. We do not believe that the Bethlehem Steel
Co case, 89 NLRB 341, cited by Members Rodgers and Beeson, is applicable . There the
Board held only that an employer could not insist as a condition of executing a contract
that the Union waive its right to be present at the adjustment of employee grievances.
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from dealing with that other person. Many factors may influence
the employer to accede to the Union's request. He may desire to
'aid the union lest substandard employment terms at the struck plant
introduce undesirable competitive practices resulting from lower labor
-costs ; the union may grant him a concession on other issues in ex-
change for his assistance; he may feel that preservation of harmonious
relations with the union is preferable to doing business with, the
struck employer ; or he may be convinced of the rightness of the
union's cause 48 Section 8 (b) (4) (A) does not deprive the employer
of the opportunity to conduct his business on the basis of considera-
tions of this nature. Nor does it deprive the union of the right to
urge such factors upon the employer, so long as the employer's con-
ent is won by means short of an actual strike or refusal to work
or the unlawful inducement of his employees to strike or refuse to
work, which are the sole influences from which the employer is.pro-
tected by Section 8 (b) (4) (A). It is true that the result of the
-employer's concurrence in the union's request is to introduce sec-
ondary pressure into the primary dispute, but Section 8 (b) (4) (A)
excludes such pressure only when- it flows from an actual strike or
refusal to work or its unlawful inducement . It does not proscribe
employer-union cooperation (or-as Members Rodgers and Beeson
would have it-waiver by the secondary employer) which is otherwise
created.
Such employer-union cooperation (or waiver by the secondary em-
ployer) need not await the union's actual dispute with another before
it may materialize. What a secondary employer may do at the time
of a primary dispute he may contract in advance to do. Thus, all that
is involved in a "hot cargo" provision is an anticipatory formalization
of the employer's conduct in future disputes between the contract-
ing union and another. We do not know of anything in Section
'8 (b) (4) (A) which prohibits such a voluntary commitment. It
stands as the employer 's affirmation of his position upon which the
union and his employees may rely in shaping their conduct.
We deem the foregoing a rather complete answer to the position
taken by Members Rodgers and Beeson. However, additional obser-
vations seem appropriate at this time. Members Rodgers and Beeson
say that they find considerable merit in the General Counsel's posi-
tion as stated by him at oral argument before the Board and which is
summarized by them in their opinion. We merely wish to point out
that the General Counsel's position is not a new one, but rather a
revival of the views which he expressed prior to the Board's decisions
48 That employers have chosen to give extensive aid to unions in their disputes with other
employers has been frequently noted. See for example, Bakke and Karp , Unions, Man-
agement and the Public, pp. 289-294, 337; Loft, The Printing Trades, pp. 10-11, 172,
173, 232 ; Haber, Industrial Relations in the Building Industry , pp. 252-256 ; Duplex
Printing Press Co. v . Deering, 254 U. S 443, 479-480.
INTERNATIONAL BROTHERHOOD: OF TEAMSTERS, ETC. 1797
in the Conway and Pittsburgh cases. As we have had occasion to
mention earlier, we consider the Board's decision in those cases, the
court decisions which we have referred to, and the views which we
have expressed herein, sufficient response to that position.
Finally, Members Rodgers and Beeson say that they are unable to
pass without comment the Trial Examiner's finding in the instant case
that by entering into the Cartage Agreement, the secondary employ-
ers consented to the "unfair goods" provision which, in substance,
excluded from required job duties work on "unfair goods," thereby
placing such work outside the course of employment of the employees.
This finding is consistent with the Board's decision in the Pittsburgh
case. However, Members Rodgers and Beeson regard the Board's
interpretation in the Pittsburgh case of the phrase "in the course of
employment" in Section 8 (b) (4) (A) as wholly untenable. Ac-
cording to them, as they read the secondary boycott provisions of the
Act, the intent of Congress was to distinguish between employees in
their capacity as employees, and employees in their capacity as private
consumers. An examination of the legislative history of Section 8 (b)
(4) (A) does not disclose that Congress intended to attach any spe-
cial meaning to the words "in the course of employment." Therefore,
while..-we do not say that the interpretation which Members Rodgers
and Beeson would give to the phrase is lacking in merit, we cannot
agree that their construction is any more an expression of congres-
sional intent than was the Board's interpretation in the Pittsburgh
case. As Members Rodgers and Beeson suggest, the phrase may be
"simple" and there may be "nothing esoteric about the language," but
the fact of the matter is that it is susceptible to different interpreta-
tions. We believe the Board's interpretation as set forth in the Pitts-
burgh case is the more plausible and correct one. We note that such
courts as have had occasion to pass upon the language have accepted
that interpretation.4' In conclusion, with respect to this subject, we
wish to point out that it involved only a minor aspect of the Pitts-
burgh case, because regardless of which interpretation was used, the
ultimate decision in that case would not have been changed. Thus,
the fundamental basis of that decision, as in Conway, was consent in
advance by the secondary employers, which made their employees'
failure to handle Pittsburgh goods not a strike or concerted refusal to
work under Secetion 8 (b) (4) (A) and therefore no illegal induce-
ment or encouragement within the meaning of that section.
We turn now to a discussion of Chairman Farmer's concurring
opinion in this case. Although the Chairman agrees with Members
Rodgers and Beeson that the Respondent Unions violated the Act, he
would not overrule the Conway and Pittsburgh cases. Parenthet-
ically, it might be noted that therefore the doctrine enunciated- in
49 Madden v. Local 442, et at , footnote 30, supra.
1798 •DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those cases remains the applicable Board law. Chairman Farmer dis-
tinguishes the instant case from Conway and Pittsburgh on the
ground that here the secondary employers did not acquiesce in the
"refusal" of their employees to handle McAllister freight because•the
employers posted notices that they wished their employees to handle
the freight. The General Counsel and the Charging Party attempted
to draw such a distinction at the hearing in this case. We think the
Trial Examiner properly rejected it. We agree completely with his
finding that the secondary employers' conduct was not intended to con-
stitute a repudiation of the Cartage Agreement and a unilateral
change in the conditions of employment by management, as evidenced
by the fact that (1) none of the employees was disciplined for disre-
garding the notices and requests, and (2) during the very period of
such disregard, article IX of the Cartage Agreement was revised by
the secondary employers and the Union. We believe, in accord with
the Trial Examiner's conclusion, that the notices represented no more
than requests by the employers that their respective employees fore-
go a contractual right, and that the rejection of such requests did not
constitute either "concerted insubordination," as those words are used
in the Conway case, or a refusal to perform duties in the course of
employment. Furthermore, the Chairman's position particularly
lacks merit in view of the secondary employers' participation, during
the period when their employees were disregarding their written and
oral instructions , in a revision of that agreement for the avowed pur-
pose of providing the Union with the maximum of protection in light
of the court's decision in Conway.
Moreover, we are not at all convinced that where an employer has,
in fact, repudiated a "hot cargo" contract the Board should counte-
nance such conduct . If a "hot cargo" contract is valid-and the
Board and courts , as we have indicated , have said that it is-we,ques-
tion whether the Board should approve a breach by one party which
subjects the other party to a finding that the latter has violated the
Act. We do not consider it a proper function of this Board to dis-
regard the sanctity of valid contracts nor are we aware of any- other
situation where the Board has espoused such a view. Certainly, if a
union and an employer entered into a contract containing a valid
union-security clause and the employer, in effect, repudiated the
agreement by refusing the union 's request to discharge an employee
for nonpayment of dues, the Board would not find that the union had
violated Section 8 (b) (2) of the Act. Similarly, it would seem that
where an employer has actually repudiated a "hot cargo" contract, the
Board should find that the union has not violated Section 8 (b)
(4) (A). For these reasons , we cannot agree with the Chairman's
view that emphasis should be placed upon the "entire course of con-
duct" rather than the provisions of the contract itself. - .
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1799
In view of the foregoing, we would find, as did the Trial Examiner,
that article IX of the Cartage Agreement presents a meritorious de-
fense and therefore the Respondent Unions did not violate Section 8
(b) (4) (A) of the Act. We also agree with the Trial Examiner,
for the reasons which he has given, that the Respondent Unions did
not violate Section 8 (b) (4) (B) and 8 (b) (1) (A) of the Act.
Accordingly, we would adopt his recommendations that the complaint
be dismissed in its entirety.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT engage in , or induce or encourage the employees
of Union Freightways, Watson Bros. Transportation Company,
and Red Ball Transfer Company, or any other employer to en-
gage in, a strike or a concerted refusal in the course of their em-
ployment to work on or handle freight transported by, and freight
transported to, McAllister Transfer, Inc., where an object thereof
is (a) to force or require Union Freightways, Watson Bros. Trans-
portation Company, and Red Ball Transfer Company, or other
employers to cease doing business with McAllister Transfer, Inc. ;
or (b) to force or require McAllister Transfer, Inc., to recognize
or bargain with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, General Drivers
and Helpers Local No. 554, and Chauffeurs, Teamsters and Help-
ers Local No. 608, AFL, as the representatives of its employees
unless and until such labor organizations of such employees have
been certified as the representatives of such employees under the
provisions of Section 9 of the Act.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELP-
ERS OF AMERICA, GENERAL DRIVERS AND
HELPERS LOCAL No. 554
Dated---------------- By-------------------------------------
(Title of Officer)
CHAUFFEURS , TEAMSTERS AND HELPERS
LOCAL No. 608, AFL
By-------------------------------------
(Title of Officer)
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered , defaced , or covered by any other
material.
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been duly filed , a complaint and notice of hearing ,thereon having
beenAssued ' and served by the-General , Counsel , and an answer having been filed
by the above-named labor organizations , herein called Local No . 554 and Local No.
608, and jointly called the Respondents , a hearing involving allegations of unfair
labor practices in violation of the National Labor Relations Act, 61 Stat . 136, herein
called the Act, by the Respondents was held upon due notice at Lincoln , Nebraska,
on May 25 to 28, 1953, inclusive , before the duly designated Trial Examiner. The
allegations in substance are that during February 1953 and thereafter , the Respond-
ents engaged in , and induced and encouraged the employees of Union Freight-
ways, Watson Bros . Transportation Company, and Red Ball Transfer Company,
herein respectively called Freightways , Watson Bros ., and Red Ball , to engage in,
strikes and concerted refusals in the course of their employment to transport or
otherwise handle goods , articles, materials , or commodities with the objects of
(1) forcing or requiring Freightways , Watson Bros ., and Red Ball to cease doing
business with McAllister Transfer , Inc., herein called McAllister , and (2 ) forcing
or requiring McAllister to recognize or bargain with the Respondents as the repre-
sentatives of McAllister 's employees , although the Respondents had not been certi-
fied as such representatives under the provisions of Section 9 of the Act; and that
the Respondents thereby violated Section 8 (b) (1) (A ), (4) (A), and (4) (B)
of the Act. All parties were represented by counsel , were afforded full opportunity
to be heard , to examine and cross-examine witnesses , to introduce evidence perti-
nent to the issues, to argue orally upon the record , and to file briefs and proposed
findings and conclusions . Briefs were received from the General Counsel , the Re-
spondents , and McAllister , and have been considered . The Respondents ' motion
to dismiss, made at the close of the hearing and taken under advisement , is hereby
granted for the reasons appearing below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF M'ALLISTER
McAllister Transfer, Inc., a Nebraska corporation which has its principal office
at York, Nebraska, is a motor vehicle common carrier of intrastate and interstate
shipments, and operates under certificates issued by the Interstate Commerce Com-
mission and the Nebraska State Railway Commission. During the calendar year
1952, McAllister's revenue exceeded $150,000, of which approximately 50 percent
was attributable to interlined freight, that is, freight which McAllister (1) received
from interstate motor carriers, such as Freightways, Watson Bros., and Red Ball,
for delivery to its destination , or (2) delivered to interstate motor carriers for fur-
ther transportation. There is no dispute, and I find, that McAllister is engaged in
commerce within the meaning of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The two Respondents, General Drivers and Helpers Local No. 554 and Chauf-
fers, Teamsters and Helpers Local No. 608, are affiliates of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL,
herein called the Teamsters, and are labor organizations within the meaning of Sec-
tion 2 (5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondents' dispute with McAllister
On February 4, 1953, Stanley C. Swaney, Nebraska State chairman of the Team-
sters and president of Local No. 554, called upon Marvin Grebe,1 general manager
of McAllister, at McAllister's place of business in York, Nebraska. Swaney was
accompanied by Albert S. Parker, business agent of Local No. 554, and William
Noble, a representative of Local No. 784, which is not involved in this proceeding.
No local union affiliated with the Teamsters had been certified by the Board as a
2 Grebe's name is misspelled in the transcript.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1801
representative of McAllister's employees. Swaney requested recognition of the
Teamsters as the representative of employees of McAllister and submitted proposed
contracts to Grebe. The contracts were discussed in some detail, although Grebe
said that he was not empowered to execute a labor agreement on behalf of McAllis-
ter. Swaney asked that Grebe communicate with him within the next few days, and
the conference ended. Grebe did not do so, however.
B. The interruption in McAllister's business
On February 12, in Omaha, Swaney talked with Claude Brey, the Omaha "pickup
man" for McAllister. Swaney told Brey that on the next day McAllister would be
"shut off" from interlined freight with other carriers.2 On February 13, McAllister's
business with Freightways, Watson Bros., and Red Ball was interrupted. The in-
terruption was ended approximately 2 months later upon the issuance of an injunc-
tion in a proceeding instituted pursuant to Section 10 (1) of the Act. Before
reciting the details of the interruption, reference will be made to the contractual
relationship of the Respondents and the three secondary employers.
Freightways, Watson Bros., and Red Ball are interstate carriers. Their employees
are represented by certain local unions of the Teamsters, the local being determined
upon the basis of the "home terminal" of each employee. Locals Nos. 554 and
608 represent, respectively, employees whose home terminals are Omaha and Lincoln.
Each of the 3 employers is a party to 2 collective labor agreements with the Re-
spondents, the agreements having been negotiated by committees representing, on
the one hand, numerous employers and, on the other, the Respondents and various
other local unions affiliated with the Teamsters. The agreements became effective
on February 1, 1952, for a 3-year period. The "Iowa-Nebraska Motor Freight
Cartage Agreement," herein called the Cartage Agreement, covers dockworkers
and over-the-road drivers who work within a radius of 75 miles of their home ter-
minals. The "Central States Area Over-The-Road Motor Freight Agreement,"
herein called the Over-The-Road Agreement, covers all other over-the-road drivers.
As will appear, the employees of the three named employers who ceased interlining
freight with McAllister are all covered by the Cartage Agreement, with the possible
single exception mentioned in footnote 4.
Each of these agreements contains certain provisions which are advanced in the
Respondents' defense. The provisions are substantially identical. As originally
negotiated, the Cartage Agreement provided, in part:
ARTICLE IX. (a) It shall not be a violation of this contract and it shall
not be cause for discharge if any employee or employees refuse to go through
the picket line of a Union or refuse to handle unfair goods. Nor shall the
exercise of any rights permitted by law be a violation of this contract.
(b) The term "unfair goods" as used in this Article includes, but is not
limited to, any goods or equipment transported, interchanged, handled, or
used by any carrier, whether party to this agreement or not, at whose terminal or
terminals or place or places of business there is a controversy between such
carrier or its employees on the one hand, and a labor union on the other hand;
and such goods or equipment shall continue to be "unfair" while being trans-
ported, handled or used by interchanging or succeeding carriers, whether parties
to this Agreement or not, until such controversy is settled.
(There shall be a record understanding that, in the event the decision of the
National -Labor Relations , Board in the Conway case [Conway's Express, 87
NLRB 972] is sustained or prevails on appeal to the higher Federal Courts, this
Article will be re-negotiated and rewritten to provide the Union with the max-
imum of protection afforded by such decision.)
On March 24, 1952, within 2 months after the effective date of the agreements,
the Board's decision in the Conway case was upheld. Conway's Express v.
N. L. R. B., 195 F. 2d 906 (C. A. 2). Thereafter, article IX of each agreement
was revised by the deletion of the paragraph in parentheses above-quoted and the
addition of the following sentence to the initial paragraph of the article:
The Union and its members, individually and collectively, reserve the right
to refuse to handle goods from or to any firm or truck which is engaged or
2 This finding is based upon the credible testimony of Brey, and is supported by the
events herein. On the other hand, Swaney unconvincingly denied having made the remark
and testified also that he could not recall having seen Brey on that day.
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved in any controversy with this or any other Union; and reserve the
right to refuse to accept freight from or to make pickups from or deliveries to
establishments where picket lines, strikes, walk-outs or lock-outs exist.
The revision in the Over-The-Road Agreement became effective on January 22,
1953, prior to the interruption in McAllister's business. As recited, however, the
employees covered by that agreement did not participate in the interruption. The
revision in the Cartage Agreement did not become effective until April 8, 1953,
shortly before the interruption ended.
1. The events at Freightways
Freightways interlines shipments with McAllister at the former's terminal in
Omaha. On February 12, Parker, a representative of Local No. 554 who had called
upon Grebe, telephoned R. L. Hill, general traffic manager of Freightways. Parker
said to Hill that McAllister was being "shut off" from interlined freight and asked
whether the freight which McAllister ordinarily would receive could be given to other
carriers. Hill answered in the negative .3 On the next day, the interruption com-
menced. The Freightways' employees who participated were Merle Morehouse and
Otto Nelson, both of whom are members of Local No. 554.4 Morehouse, an inter-
line clerk, participated by ceasing to notify representatives of McAllister that freight
had been received by Freightways for transportation by McAllister. Morehouse
testified that on February 13 he learned of the dispute between McAllister and locals
of the Teamsters from an unidentified person at Consolidated Freight Terminal in
Omaha and that he thereafter ceased to notify McAllister of freight shipments because
the latter was "having labor trouble." At about this time, however, Parker called
at Morehouse's office and said to several employees, including Morehouse, that
McAllister was having labor troubles and was "N. G." 5 Morehouse reported to
Hill that he had been told that McAllister was "N. G." and asked what he should
do with freight for McAllister. Hill, who understood the letters "N. G." to mean
"no good," told Morehouse to be sure that the McAllister freight bills did not get
into the hands of another carrier.
Nelson, a freight checker, participated in the interruption by refusing to accept
from McAllister shipments to be transported by Freightways. On one occasion,
Nelson told Hill that he could not read the freight bills. Nelson testified that he
refused because, under the terms of the Cartage Agreement, he was "not obligated
to handle unfair merchandise."
On February 16, Freightways posted a notice to its employees as follows:
Our Company is not having a labor dispute with any labor union. As a
common carrier holding authorities under Federal and State laws, we are
required to transport all commodities properly tendered to us.
Therefore, we direct all of our employees to handle freight received by us,
without discrimination as to shippers or motor carriers who may be inter-
$ The findings concerning this conversation are based upon the testimony of Hill. On
the other hand, Parker acknowledged that he asked Hill to reroute the freight, but denied
that he told Hill that he was "shutting McAllister off." I am unable to credit Parker's
denial, which is inconsistent with other conduct in which he and representatives of the
Respondents engaged.
' As noted above, all employees of Freightways, Watson Bros., and Red Ball who partici-
pated in the work stoppage are covered by the Cartage Agreement, with a single possible
exception. That exception is Morehouse. During the hearing, counsel for the Respond-
ents said that Morehouse was covered by still another agreement, an "office contract,"
but the General Counsel and counsel for McAllister said that they were unaware of any
such agreement. Counsel for the Respondents, who appears not to have been fully in-
formed on the point, then said that he would have to investigate it further, but there was
no later reference to it during the hearing or in the briefs. I do not regard this unde-
veloped point as decisive of the issues here.
5 This finding is based upon the testimony of Morehouse, a witness for the General
Counsel. On the other hand, Parker denied that he had talked with Morehouse about
McAllister at times material. An added contradiction of Morehouse is the testimony of
Zifford Robbins, who was identified by Morehouse as one of the employees to whom
Parker spoke. Robbins denied that he talked with Parker on February 13 and that he had
ever heard the expression IN. G." I believe, however, that the circumstances of this case
support Morehouse 's testimony.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1803
-.lining freight with us. This includes freight which we-originate and is destined
beyond our line in which specific routing is furnished to us by the shipper.
Although the notice was not rescinded, and Morehouse and Nelson continued to
disregard it with respect to interlining freight with McAllister, Freightways did not
discipline them. With the exception of a few shipments, handled by supervisory
personnel, Freightways' business with McAllister was suspended.
2. The events at Watson Bros.
Watson Bros. interlines freight with McAllister at the former's terminal in Lincoln.
On February 8, 4 days after the demand that McAllister recognize the Teamsters, a
regular membership meeting of Local No. 608 was held in Lincoln. During the
course of the meeting, Ray Blankenship, secretary-treasurer and business representa-
tive of that Respondent, read to the members article IX of the Cartage Agreement,
following which he said that there was a labor dispute with McAllister and that the
members had the right as individuals to refuse to handle McAllister freight.6 Within
the next few days, Blankenship telephoned Edward Banning, dock foreman for Wat-
son Bros., and said that McAllister would be "shut off" from interlined freight.
Banning answered, "all right." 7 On February 13, when the interlining of freight
with McAllister was interrupted in both Lincoln and Omaha, William Neff, an em-
ployee of Watson Bros., ceased to accept freight from, and to deliver freight to,
McAllister. According to Neff, his failure to handle McAllister freight was a mat-
ter of his "own personal choice." 9 Thereafter, Frank C. McKay, manager of Wat-
son Bros.' terminal at Lincoln, telephoned Blankenship and asked if "McAllister had
been shut off," and Blankenship answered "yes," adding that Watson Bros. was "not
supposed to interline freight with McAllister." 9 Soon thereafter, McKay posted
a notice like that posted by Freightways, above-described. It was not effective,
and the interlining of freight between Watson Bros. and McAllister remained sus-
pended. No employee of Watson Bros. was disciplined for a failure to handle
McAllister freight, however.
3. The events at Red Ball
Red Ball, like Watson Bros., interlines freight with McAllister at Lincoln. Henry
Fahrnbruch, an employee of Red Ball and a member of Local No. 608, ceased to
check out freight to, and to check in freight from, McAllister. According to Fahrn-
bruch, he was not told by a representative of Local No. 608 not to handle McAllister
freight, but ceased doing so because the contractual provisions did not require him
to handle it, and his decision was a matter of his own volition. After the inter-
6 The finding that Blankenship thus referred to McAllister freight is based upon the
testimony of Robert Baker, an employee of Watson Bros. and a member of Local No. 608,
who testified for the General Counsel. On the other hand, Blankenship testified that be
Informed the members that they "had the right as individuals" to refuse to handle unfair
goods generally, but that his only reference to McAllister was to say that he anticipated
that McAllister would execute contracts with the Teamsters. Two other persons who at-
tended'the meeting, C. W. Mayfield and Louis Stopek, trustee and vice president of Local
No. 608, respectively, testified in substance as did Blankenship Still further testimony
-on the point was given by William Neff, an employee of Watson Bros. who ceased handling
Interlined freight with McAllister, but his testimony is self-contradictory. I am unable to
credit the testimony of Blankenship, Mayfield, and Stopek. Blankenship's conduct de-
scribed below lends support to Baker's testimony.
* The findings concerning this conversation are based upon Banning's testimony. On
the other hand, Blankenship denied that he had so informed Banning. According to
Blankenship, he asked Banning to refuse to interline freight with McAllister.
8 As noted in footnote 6, Neff's testimony as to whether he was encouraged by Blank-
enship not to handle the freight is self-contradictory.
• This finding is based upon the testimony of McKay. On the other hand, Blankenship's
version of the conversation is that McKay said that Banning had informed McKay that
Blankenship had requested that Watson Bros. not interline freight with McAllister, saying
also that "if there was anything like that going on that he [McKay] wanted to know
about it" and that Blankenship should have called him instead of Banning, to which
Blankenship replied that he had tried to reach McKay before talking with Banning. Ac-
cording -to Blankenship , he did not say to McKay that McAllister had been "cut off" from
interlined freight.
1804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ruption in the interlining of freight, H. T. Willey, manager of Red Ball's terminal
at Lincoln, talked with Blankenship, who said that McAllister was "cut off." 10
On February 16, Willey posted a notice in substance like that posted by Freight-
ways. Fahrnbruch did not resume handling McAllister freight, however, except for
a shipment of clothing and medicine to a children's home. He was not disciplined.
C. Conclusions
The Respondents deny that they induced or encouraged any of their members
not to handle McAllister freight. They assert that the members acted upon their
own initiative and volition." It is apparent, however, from the remarks of Swaney
to Brey, Parker to Hill, and Blankenship to Banning, that the Respondents were tak-
ing steps to suspend the interlining of McAllister freight. Two steps were Parker's
remark to several employees of Freightways that McAllister was having labor trou-
bles and was "N. G.," and Blankenship's statement at the membership meeting of
Local No. 608 that there was a labor dispute with McAllister and that the members
had the right under the agreement to cease handling McAllister freight. Moreover,
Blankenship's statements to McKay and Willey that McAllister had been "shut off"
or "cut off" from interlined freight were acknowledgements that Local No. 608 had
taken such steps. Pittsburgh Plate Glass Company, 105 NLRB 740. Accordingly,
this defense must be rejected. There remains, however, the question whether the
provisions of the Cartage Agreement, recited above, present a meritorious defense
under the Conway's Express doctrine as recently reaffirmed by the Pittsburgh Plate
Glass case.
In the Conway case, employees of certain secondary employers ceased handling
the freight of a primary employer, Conway, with which their union had a dispute.
The contracts between the secondary employers and the union in some respects were
like article IX of the Cartage Agreement here. The Board held that by entering into
the contracts the secondary employers had consented in advance to the failure of
their employees to handle Conway freight and, therefore, that such failure was not
a "strike" or "refusal" to work as those words are used in Section 8 (b) (4) and that
"any such concerted insubordination [was not] contemplated by the Respondent
when it caused the employees to exercise their contractual privilege." The Gen-
eral Counsel and McAllister seek to distinguish the Conway doctrine on the ground
that it is inapplicable to the type of provisions in the Cartage Agreement. They
point out that in the Conway case the contracts reserved to the union, rather than to
the employees individually, the right to refuse to handle goods of employers in-
volved in labor disputes, whereas the Cartage Agreement as originally negotiated
provided that it would not be a violation thereof or cause for discharge if employees
should refuse to handle "unfair goods." The provisions of the Cartage Agreement
prior to the revision of article IX, however, were substantially the same as the pro-
visions of the agreements considered in the Pittsburgh- case, one of which was the
Over-The-Road Agreement. Thus, the Pittsburgh case, decided since the hearing in
the instant case, is apposite here and disposes of this contention by the General Coun-
sel and McAllister. A second contention which they advance is that the Conway
case is to be distinguished because the secondary employers there acquiesced in their
employees' failure to handle the goods of the primary employer, whereas here the sec-
ondary employers posted notices to their employees as above described. I do not
regard this distinction as being of controlling significance. The basic factor is that
Freightways, Watson Bros. and Red Ball, by entering into the Cartage Agreement,
consented to the "unfair goods" provisions which, in-substance, "excluded from the
required job duties work on `unfair goods,' " and thereby placed such work outside
the course of employment of the employees. The posted notices did not purport to
constitute a repudiation of the Cartage Agreement and a unilateral change in the
conditions of employment by maangement. Nor were they so intended. This is evi-
10 This finding is based upon Willey's testimony. On the other hand, Blankenship testi-
fied that he did not so inform Willey, but that the conversation was one in which he said
that a labor dispute existed with McAllister and asked Willey to "refuse to interline
freight" and to so instruct Red Ball's employees. According to Blankenship, Willey
readily agreed to do so.
U Although, as noted, Morehouse, Nelson, Neff, and Fahrnbruch so testified, the record
contains testimony by other witnesses that those employees, other than Nelson, made con-
trary statements when they ceased interlining freight with McAllister. Such testimony,
attributing to the three employees remarks inconsistent with their testimony, is hearsay
insofar as it is offered as direct proof that agents of the Respondents induced and en-
couraged them not to handle McAllister freight.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1805
denced by the facts that (1) none of the employees was disciplined for disregard-
ing the notices, and (2) during the period of such disregard, article IX of the Cartage
Agreement was revised in accord with the contractual obligation of the employers
as above described. I conclude that the notices represented no more than requests
by the employers that their respective employees forego a contractual right, and
that the rejection of such requests did not constitute either "concerted insubordina-
tion," as those words are used in the Conway case, or a refusal to perform duties in
the course of employment.
A third distinguishing feature in the Conway and instant case is advanced. The
General Counsel points out that the Conway case involved only an alleged violation
of Section 8 (b) (4) (A), whereas here we also have an alleged violation of Section
8 (b) (4) (B) flowing from the same factual situation.12 It is also true that the
Pittsburgh case involved only an alleged violation of Section 8 (b) (4) (A). Ac-
cording to the General Counsel, if it be said that by reason of the consent of Freight-
ways, Watson Bros. and Red Ball inherent in the Cartage Agreement that the activ-
ity of the Respondents did not have as an object to "force" or "require" those employ-
ers to cease interlining freight with McAllister, the fact nevertheless remains that an
object of the Respondents' conduct was to force or require another employer,
McAllister, to recognize the Teamsters as the representative of its employees al-
though the Teamsters had not been certified as such representative. The General
Counsel asserts that McAllister's employees are entitled to participate in a repre-
sentation proceeding, that "employer-union cooperation" (as that term is used in
footnote 31 of the Conway decision) to force or require McAllister to impose a
union representative upon its employees is not permissible under Section 8 (b) (4)
(B), and that Freightways, Watson Bros. and Red Ball may not "by contract con-
sent in advance to a denial of statutory rights which the Act grants to McAllister
employees." 13
This contention must also be rejected. The issues here involve (1) the lawfulness
of conduct of the Respondents when neither had been certified as a representative
of McAllister's employees, not conduct of the secondary employers, and (2) the
"unfair goods" provisions of the Cartage Agreement as a defense to that conduct.
We do not have an issue concerning the status of the Respondents as uncertified
representatives of McAllister's employees in appropriate units.14 The Act does not
make a certification of representatives a prerequisite to primary strike activity by
a labor organization in order to achieve recognition. Perry Norvell Company, 80
NLRB 225; Sue-Ann Manufacturing Company, 98 NLRB 848. Section 8 (b) (4)
(B), however, makes a certification, coupled with an employer's refusal to honor it,
a prerequisite to secondary strike activity, but in this respect subsection (4) (B) is
a specific qualification upon, and an exception to, the broad prohibitions of secondary
boycotts in subsection (4) (A). Di Giorgio, 87 NLRB 720. In the Conway and
"Section 8 (b) (4) provides that it shall be an unfair labor practice for a labor organ-
ization or its agents .
to engage in, or to induce or encourage the employees of any employer to engage in,
a strike or a concerted refusal in the course of their employment to use, manufac-
ture, process, transport, or otherwise handle or work on any goods . . . where an
object thereof is : (A) forcing or requiring . . . any employer or other person to
cease using, selling, handling, transporting, or otherwise dealing in the products of
any other producer, processor or manufacturer, or to cease doing business with any
other person; (B) forcing or requiring any other employer to recognize or bargain
with a labor organization as the representative of his employees unless such labor
organization has been certified as the representative of such employees under the
provisions of section 9; . .
130n February 19, 1953, after its business was interrupted, McAllister filed a petition
with the appropriate Regional Office of the Board. The matter was pending at the time
of the hearing in the instant case and, on June 25, 1953, the Board directed an election.
McAllister Transfer Inc, 105 NLRB 751. The determination of the lawfulness of the
Respondents' conduct does not depend upon the outcome of the election
14 The complaint alleges that the Respondents were not the certified representative of
McAllister's employees. It is not alleged that the Respondents did not possess majority
status. The distinction was made clear at the hearing. In connection with an issue of
credibility which need not be detailed, the Respondents' counsel asked a question of
Swaney which was intended to prove the majority status of Local No. 554, and the Gen-
eral Counsel objected upon the ground of irrelevancy and immateriality to any issue in the
proceeding. The objection was sustained upon a separate ground advanced by counsel for
McAllister.
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pittsburgh cases, the Board 's rationale was centered upon the proscribed activity of
Section 8 (b) (4), which precedes the statement of objects in (A) and (B) thereof.
The Board 's determination that the conduct of the respondent labor organizations
there did not come within the proscribed activity, where the alleged violations were:
of subsection (4) (A), is logically as applicable to an alleged violation of subsection
(4) (B), particularly since the latter subsection merely creates an exception to the
former . I conclude that article IX of the Cartage Agreement presents a meritorious,
defense to the alleged violations of both Section 8 (b) (4) (A) and (B).
There remains the alleged violation of Section 8 (b) (1) (A), which also is
based upon the same factual situation as the alleged violation of Section 8 (b) (4)
(A). According to the General Counsel and counsel for McAllister, the Re-
spondents , by inducing and encouraging employees of Freightways , Watson Bros..
and Red Ball not to handle McAllister freight , engaged in activity reasonably
calculated to diminish the hours of employment of McAllister' s employees, and.
thereby restrained and coerced the latter employees in the exercise of the right to
refrain from the activities guaranteed in Section 7 of the Act. No Decision of the:
Board in point is cited to support the contention , and it is not persuasive.15 In
National Maritime Union, 78 NLRB 971, the Board held that a limited construction,
of the term "restrain or coerce" in Section 8 (b) (1) (A) was envisaged by the
legislative scheme, and I do not believe that any of McAllister's employees was.
restrained or coerced in the statutory sense . All strike activity, primary as well
as secondary, may have the effect of diminishing a dissenting employee 's hours of
employment . Such is the normal consequence of all strikes which do not have com-
plete employee support and participation . Nevertheless , a minority strike is not
violative of Section 8 (b) (1) (A) because it is unsupported by a majority of
employees . U. A. W. v. O'Brien , 339 U. S. 454, 458, 70 S. Ct. 781, 783; Sue-Ann
Manufacturing Company, supra. Moreover, a strike by a labor organization for-
the purpose of inducing nonmember employees to withdraw a decertification peti-
tion , which, in a sense, is "coercive " of the nonmembers , is not violative of Section
8 (b) (1) (A). The Higbee Company, 97 NLRB 654. I conclude that the Re-
spondents' conduct was not violative of that section . Cf. Ferro-Co Corporation, 102
NLRB 1646.
Upon the basis of the above findings of fact, and upon the entire record, I make:
the following:
CONCLUSIONS OF LAW
1. The operations of McAllister Transfer, Inc. constitute trade, traffic, and com -
merce among the several States within the meaning of Section 2 (6) and (7) of
the Act.
2. The Respondents are labor organizations within the meaning of Section 2 (5)
of the Act.
3. The allegations of the complaint that the Respondents have engaged in unfair
labor practices have not been sustained.
[Recommendations omitted from publication.]
w McAllister cites Capital Service, Inc., et al. v. N. L. R. B., 204 F . 2d 848 ( C. A. 9),
In which a somewhat analogous Issue was involved . That case , however, arose under un
usual circumstances which did not involve a prior determination by the Board.
HONOLULU RAPID TRANSIT COMPANY , LIMITED and TRANSIT WORKERS
UNION OF HAWAII , INDEPENDENT . Case No. 37-CA-77. December
16,1954
Decision and Order
On March 3, 1954, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, sustaining cer-
tain portions of the complaint alleging violations of Section 8 (a) (3)
and (1) of the Act by the Respondent, Honolulu Rapid Transit Com-
pany, Limited, and dismissing other portions of the complaint alleg-
110 NLRB No. 244.