Local 135

National Labor Relations Board - Board Decisions

Mar 14, 1957

117 N.L.R.B. 635 (N.L.R.B. 1957)

LOCAL 135 635
WE WILL NOT engage in or induce or encourage employees of The Mason
and Dixon Lines, Inc., Silver Fleet Motor Express, Incorporated, Robinson
Freight Lines, East Tennessee and Western North Carolina Freight Lines, and
The Holston Glass Company, Inc., or of any other employer, to engage in a
strike or in a concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any goods, a rticles,
materials, or commodities, or to perform any services, where an object thereof
is to force or require any of the above-named employers, or any other employer
to cease doing business with Blue Ridge Glass Corporation.
UNITED GLASS AND CERAMIC WORKERS OF
NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
LOCAL 117, UNITED GLASS AND CERAMIC
WORKERS OF NORTH AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
APPENDIX B
The Mason and Dixon Lines, Inc.
Silver Fleet Motor Express, Incorporated
Robinson Freight Lines
East Tennessee and Western North Carolina Freight Lines
The Holston Glass Company, Inc.
Local 135, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America , AFL-CIO and Capital
Paper Company and Consolidated Sales, Inc. Case No. 35-CC-
3I. March 1 4,1907
DECISION AND ORDER
On August '24, 1956, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The, Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
i In its exceptions, the Respondent urges that the Trial Examiner improperly admitted
hearsay evidence relating to certain statements and conduct of shop stewards at the
secondary employers premises involved herein to establish that the Respondent induced
or encouraged the secondary employees to refuse to handle the Charging Party's freight.
The Respondent contends that the General Counsel failed to establish that the shop
stewards were acting as agents for the Respondent and therefore evidence relating to their
117 NLRB No. 95.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Respondent, Local 135, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, its officers, representatives, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Inducing or encouraging the employees of Allied Grocers,
I & S Motor Express, McDaniel Freight Lines, Motor Freight Cor-
poration, R. D. Motor Express, or any other employer (other than
Capital Paper Company and Consolidated Sales, Inc.) to engage in
a strike or concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any
goods, articles, materials, or commodities or to perform any services,
where an object thereof is (1) to force or require Allied Grocers,
I & S Motor Express, McDaniel Freight Lines, Motor Freight Cor-
poration, R. D. Express, or any other employer to cease doing busi-
ness with Capital Paper Company and Consolidated Sales, Inc., or
with any other person; or (2) to force or require Capital Paper Com-
pany and Consolidated Sales, Inc., to recognize or bargain with
Respondent as the representative of their employees unless Respondent
is certified as the representative of such employees pursuant to the
provisions 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 its business offices at Indianapolis, Indiana, and all
other places where notices to its members are customarily posted,
copies of the notice attached hereto and marked "Appendix." 2 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by an official representative of
Respondent, be posted immediately upon receipt thereof and main-
statements and conduct constituted hearsay evidence as to Respondent . Like the Trial
Examiner , we find that the preponderance of the evidence in the record as a whole
establishes that the shop stewards were acting as agents for the Respondent and that
their statements and conduct are binding on Respondent See, e . g, Local 657 , Inter-
national Brotherhood of Teamsters , etc. (Southwestern Motor Transport ), 115 NLRB
981, 986 ; International Brotherhood of Teamsters , etc , Local 182 (Lane Construction
Corporation ), 111 NLRB 952 , 953 Accordingly , we find that this evidence was not
hearsay and that the Trial Examiner properly admitted it into the record The Re-
spondent's exception to its admission is therefore overruled
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
LOCAL 135 637
tained for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Cause a copy of said notice to be printed, at the Respondent's
expense, in a newspaper of general circulation in Indianapolis, Indiana.
(c) Mail to the Regional Director for the Ninth Region signed
copies of said notice for posting by Allied Grocers, I & S Motor Ex-
press, McDaniel Freight Lines, Motor Freight Corporation, and
R. D. Motor Express, if willing, in places where notices to their em-
ployees are customarily posted.
(d) Notify the Regional Director for the Ninth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
MEMBER MURDOCK, dissenting :
I cannot concur in my colleagues' finding that the Respondent vio-
lated Section 8 (b) (4) (A) or (B) of the Act in this proceeding. The
contracts executed between the Respondent and the secondary em-
ployers involved herein contain so-called "protection of rights" or
"hot cargo" clauses in which the secondary employers agreed that the
Respondent and its members who are covered by these contracts could
"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
could "refuse to accept freight from, or to make pickups from, or
deliveries to establishments where picket lines, strikes, walkouts or
lockouts exist." For the reasons set forth in my dissenting opinion in
Local 1976, United Brotherhood of Carpenters and Joiners, etc. (Sand
Door and Plywood Corporation), 113 NLRB 1210, I believe that the
Respondent could lawfully instruct its members to refrain from
handling the Charging Party's freight. I would therefore dismiss
the complaint in this case.
APPENDIX
NOTICE TO ALL MEMBERS Or LoCAL 135, INTERNATIONAL BROTHERHOOD
Or TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL-CIO
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT induce or encourage the employees of any eIn-
ployer other than Capital Paper Company and Consolidated
Sales, Inc., to engage in a strike or concerted refusal in the course
of their employment, to use, manufacture, process, transport, or
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise handle or work on goods, articles, or commodities, or to
perform any services, where an object thereof is to force or require
any employer to cease doing business with any other person or to
force or require Capital Paper Company and Consolidated Sales,
Inc., to recognize the undersigned union as the representative of
their employees, unless and until certified by the National Labor
Relations Board.
LOCAL 135, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
AFL-CIO,
Labor Organization.
Dated---------------- By--------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Capital Paper Company and Consolidated Sales, Inc.
(herein referred to jointly as Capital or the Employer), the General Counsel for the
National Labor Relations Board, by the Regional Director for the Ninth Region (Cin-
cinnati, Ohio), issued a complaint against Local 135, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (herein
called Local 135 or Union), alleging that it had engaged in and was engaging in
conduct constituting unfair labor practices affecting commerce within the meaning
of Section 8 (b) (4) (A) and (4) (B) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges,
complaint, and notice of hearing thereon, were duly served upon the Respondent
Union. In its answer, duly filed, the latter denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held on May 22 to 24, 1956, at Indianapolis,
Indiana, before the duly designated Trial Examiner. All parties were represented
at the hearing at which full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was afforded all parties.
Counsel waived oral argument at the close of the hearing. On July 16, 1956, all
parties submitted briefs which have been fully considered by the Trial Examiner.
From my observation of the demeanor of the witnesses, and upon the entire record
in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Capital and Consolidated are Indiana corporations, the headquarters and principal
place of business occupy a common premises in Indianapolis where they are engaged
in the wholesale distribution of paper products, building materials, appliances, and
other items. In addition to having several officers common to Capital and Con-
solidated, many of the employees handle merchandise for both companies and the
entire operations of the two corporations are closely related. In a Decision and
Direction of Election issued on February 14, 1956,1 the Board found that Capital
and Consolidated were a single employer within the meaning of the Act. On the
foregoing facts, that is also my conclusion and I so find.
During the 12-month period ending in December 1955, Capital and Consolidated
purchased merchandise valued at $8,269,698, approximately 90 percent of which
I Capital Paper Company and Consoltidated Sales, Inc, Case No 35-RC-1250 (not
reported in printed volumes of Board Decisions and Orders).
LOCAL 135 639
came from outside the State of Indiana . During the same period , sales of the two
companies totalled $10 ,471,131 . The General Counsel submitted evidence, which
I credit, that of this latter amount $129 , 121 represented sales to out -of-State cus-
tomers. In addition to its headquarters in Indianapolis , Capital maintains a branch
office in Columbus , Ohio, and other branches in Evansville and Terre Haute, Indiana.
On these facts , I find that Capital and Consolidated are engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 ( 5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
In December 1955 the Union began an organizational campaign among the em-
ployees of the Charging Party. On December 16 it requested recognition. This
was declined and on December 19 the Union filed a representation petition with the
Board (Case No. 35-RC-1250 ) on which a hearing was held January 10, 1956. On
February 13 the Union established a picket line at the premises of the Employer and
filed a charge alleging that the latter had violated Section 8 (a) (1) of the Act.2 The
following day the Board issued its Decision and Direction of Election in Case No.
35-RC-1250 .3 On February 23, the Union sought to withdraw its representation
petition . The Board denied this request by an order dated February 29. That
same day the Employer filed the charge upon which the complaint in the present
proceeding is based. On April 13 , the United States District Court for the Southern
District of Indiana entered an order enjoining the Respondent from engaging in con-
duct violative of Section 8 (b) (4) (A ) and (B ) of the Act pending an adjudication
of this case before the Board . At the time of the hearing before the Trial Examiner
the Respondent was still picketing the premises of the Employer.
B. The facts
On February 14, a company truck arrived at the warehouse of Allied Grocers of
Indiana, Inc. (herein called Allied ), a concern at which the dock and warehouse em-
ployees are represented by the Respondent Union. Howard Swickheimer , foreman
for Allied, asked Kenneth Imhausen , a dock employee , to receive the freight. The
latter declined and remarked in so doing that Capital was on strike . The foreman
then made the same request of Shirley Green, another employee who was also an
alternate steward for the Union . Green likewise refused to handle the freight.
Swickheimer then asked Louis Doss, the union steward, whether he would receive
the shipment . Doss declined , initially, on the ground that Capital was on strike.
At that point, R. W. Harris , acting superintendent of the warehouse , arrived and
questioned Doss' assertion that there was a strike in progress at Capital . Doss and
Green then used the foreman 's office to telephone the Union . After completing the
call, Doss returned to tell Harris "It remains as it was," and stated further that "the
reason it [ the truck ] wasn't going to be unloaded was Capital Paper was on a strike,
and it was merchandise through a picket." 4 After Swickheimer was unable to get
any of the employees to unload the truck it finally left. At the hearing Doss was
asked whether he told any of his fellow employees ;there was a picket line at Capital
Paper. He replied,
A. Yeah ; a lot of the other boys that was down there passed by and asked
why we didn't receive it , and I told them that there was a strike on out there.
Q. Did you tell them you had called the Union on it?
A. Yes, sir.
Andrew J. Freeman, an order filler in the Allied warehouse , testified that on February
14 he inquired of Doss as to why the Capital truck had left without unloading and
that the latter had told him that Capital "had a strike on . . . a picket line." He
2 The Regional Office and the Employer enteied a settlement agi cement as to this charge
on May 1 At the time of the hearing the Union had an appeal from this settlement
pending with the General Counsel. On May 18, the Union filed a charge allegin' that
the Employer had violated Section 8 ( a) (3) of the Act by refusing to reinstate those
employees who had gone on strike the preceding February
3 The parties stipulated that copies of this decision did not reach Indianapolis until
February 16
4 The foregoing quotation is from the credible, undenied testimony of Harris.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further testified that since that time he has refused to fill any orders for the products
of the Charging Party.
For over 2 months after the incident described above, Capital made no deliveries
directly to Allied. Instead, products destined for that customer were sent first to
Merchandise Warehouse , an Indianapolis establishment with nonunion labor, which,
in turn, delivered the Employer 's goods to Allied. Early in May, however , Capital
attempted to make another delivery, directly to Allied. Swickheimer asked Doss
and an employee named Richard Casteller to unload the truck. Both declined on
the ground that there was still a picket line at the Employer 's premises . Doss testified
that, on this occasion , after several of the employees had refused to unload the truck,
Mr. Kovernor, superintendent of Allied, came up to him and demanded "either you
settle it now or you unload the truck yourself ." According to Doss, he replied "Well,
Mr. Kovernor , I don't think I want to unload it ." Sam Lovinger , superintendent of
Capital , who was present at the time , testified that Kovernor then asked that the truck
leave without unloading "so that he wouldn't have any trouble with his boys and the
Union." Since that time Capital has had no further orders from this customer.
On February 15, a Capital truck with merchandise consigned to a customer in
Evansville , Indiana, arrived at the terminal of Indianapolis and Southern Motor
Express, Inc. (herein called I & S). The dock employees of the latter are repre-
sented by the Respondent. Lovinger, who accompanied the truck, asked for a
checker. He was referred to Joe Davis , one of the employees who was also shop
steward. The latter told Lovinger that he would have nothing to do with the shipment
because it was "unfair freight," since Capital was on strike Lovinger took issue
with this remark and stated that his Company was not on strike and that the picketing
at Capital 's premises was being conducted by a union which had never been elected
as the bargaining representative of the employees. Davis then stated that he would
telephone the "Hall" and walked into the terminal. Shortly thereafter he returned
and told Lovinger "I'm sorry. I can't handle your freight. It is `unfair goods.' "
Homer Shelley, terminal manager, then told Lovinger, "Speaking for the company
I would like the freight . but . my boys won't handle it, and there is nothing
I can do." The Capital truck then left without being unloade^d.5
Wallace Goodin, a checker at the I & S dock, testified that after the departure of
the truck, he and Davis had a conversation about the incident at which several other
employees were present and that during the course of the discussion Davis and he
stated that they could handle no more shipments from Capital because there was
a picket line at its premises and its freight was "unfair ." Mr. Shelley testified,
credibly and without contradiction, that some 3 to 4 days later he had a conversa-
tion with Steward Davis in which the latter told him that he was in a very difficult
position because whenever he called the Union for advice "they would tell him it
[Capital freight] was `hot goods' and that is all they would tell him." For almost
2 months thereafter Capital brought no more freight to the I & S terminal Since
the entry of the injunctive decree by the Federal District Court in April, however,
the I & S dock employees have handled Capital merchandise without incident.
On about February 23, a Capital truck arrived at the terminal of McDaniel Freight
Lines, Inc. (herein called McDaniel). The dock employees of that carrier are
likewise members of the Respondent Union. Obra Taylor, an employee who was
also shop steward for Local 135, started to unload the shipment. He did not transfer
the freight into a McDaniel trailer immediately . Instead, after he had removed it
from the Capital truck, Taylor told Irvin Stringer, his foreman, that it was mixed up
and that it had to be placed on the dock to be checked for missing items. At the
hearing, however, Taylor conceded that "sometime later in the afternoon," and
after he had unloaded the freight from the Capital truck, he learned that the mer-
chandise was "unfair." 6 He further testified that he told Justin McClain , the terminal
manager, that for this reason he would not handle it. In fact , Taylor never did
return to the job of transferring the shipment of Capital merchandise to a McDaniel
5 The foregoing findings are based on the credible and uncontradicted testimony of
Lovinger
0 The quotations are from Taylor 's testimony At the time Taylor was taking the
freight off the Capital truck 3 nien , identified in the record only as having been dressed
in business suits, were standing on the (lock about 30 feet away Taylor tee*ified that
he saw the men and that he talked to them He described one as a person whom he had
seen previously at the union hall He denied having learned from these men, however,
that the Capital merchandise was unfair On the other hand, he was very hazy as to
whom the souice of this information could have been Taylor, a witness called by the
General Counsel , was most reluctant and evasive throughout the course of his direct
examination
LOCAL 135 641
trailer. It remained on the dock for some time and was not shipped out for several
days.
A few days later another Capital truck arrived at the McDaniel terminal. When
the driver found it impossible to get a checker to unload his freight, McClain in-
structed Foreman Stringer to take the Capital bills of lading to each of the McDamel
employees on the dock and ask that the shipment be accepted. In a short while
Stringer reported to the terminal manager that the men had refused to handle the
consignment on the ground that it was "unfair goods." At the hearing Stringer
testified on direct examination that the dock employees had told him "in so many
words that they refused to handle the freight because the Union had advised them
not to." On cross-examination he qualified this testimony with the statement that
although none of the employees told him that the Union had ordered that the freight
not be handled, "being a former Union member 7 I knew that in the contract there
is a `hot goods' clause that declares that `unfair goods' does not have to be handled
by the Union member. . . . Therefore, . I made the statement that the Union
advised them to, that was my own way of putting it, that it was in the contract, that
they didn't have to handle `unfair goods.' " Subsequent to the above incident and
until the Federal Court order of April 13, McDaniel handled no more freight for
Capital. Since the latter date, the McDaniel employees have voiced no objection
to receiving and shipping Capital merchandise
On February 27, the Employer sent a truck to Motor Freight Corporation (herein
called Motor Freight) another common carrier in Indianapolis whose drivers and
dockmen are represented by the Respondent Union. The Capital driver asked dock
employee Harry Armstrong to receive the shipment. Armstrong, who is also the
union steward at Motor Freight, refused to do so and the truck finally left without
unloading the merchandise. At the hearing, Armstrong, stated "I just didn't want
to handle his freight because they had come through a picket line ." After this
incident Capital made no further effort to send any merchandise to this carrier for
shipment.
On February 27, Herman L. Hacker, an employee of Capital, drove a truck to
the terminal of R. D. Motor Express Co. (herein called R. D.). The drivers and
dockmen employed by this carrier are also represented by the Respondent Union.
As Hacker unloaded the truck, Sam Ervin and Thomas McClara, both employees of
R. D., were checking in the shipment. After the truck was partially unloaded Ervin
stopped and remarked to Hacker that "they couldn't receive that because it was `hot
goods,' . . . they couldn't touch no more of it." The latter declared that Capital
was not on strike. Ervin then stated that he would "have to go call the man . . .
call the Union Hall. . Ervin thereupon left the dock and in a few minutes
returned to tell Hackei "I can't handle that . I might get hell if I did, or if
I don't." 8 Shortly thereafter, Herbert Ficklm, dispatcher for R. D., called Forrest
W. Sewell, the terminal manager, to discuss the matter. Ervin and Hacker, as well
as Ficklin, were present at the ensuing conversation. According to Sewell, "I
asked Mr. Ervin what was the matter, and he said that he had some shipments from
Capital Paper and he couldn't take them because it was `hot' . . . I asked him why.
He said, Well, I just called the Hall,' 9 and he said that it was `hot goods' .
I asked him if he would sign a statement to that effect . he said he would."
Sewell then had Carol Alfonte, the office manager, type up the following statement
which Ervin then read, and signed:
2-27-56.
This is to certify that Capital Paper Co. offered shipments this date for transport
to Muncie and Anderson Indiana and shipments were refused at this dock due
to the fact that Capital Paper is on strike. Union Hall was called and approval
was given to refusal.
(Signed) SAM ERVIN,
R D. Motor Express, Inc,
Indpls, Ind.
Later that morning, when Meredith Ballard, the union steward at R. D., came
to work, Ervin told him about having signed the above document. Shortly there-
after Ballard told Ervin that Mr. Gene San Soucie, president of the Respondent
Union, wanted to see him at the Respondent's headquarters. When Ervin re-
7 Since his promotion to a supervisory position, Stringer has held a withdiawal card
in the Respondent Union
8 The foregoing quotations in this paragraph are from the credited testimony of Hacker
which was in substantial accord with that of Ervin and McClara
In fact , Ervin had called the hiring hall which is operated by Local 135
42 3 7 8-1-5 7-col 117-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ported to San Soucie's office , the latter questioned him as to the whereabouts of
the statement he had signed. Ervin suggested that he telephone Sewell. San Soucie
did so, while Ervin was present in the office . According to the credible testimony
of Ervin, San Soucie opened the conversation by telling Sewell that he was sending
a representative over to R. D. to get the document and "if he couldn ' t get the
papers he would have to do likewise ." Then, after a pause, San Soucie stated
"Well, maybe have to close the place down " or "Shut the doors." At some point
during the meeting, Dick Dininger, a business agent for the Respondent , entered
the office. After his telephone conversation with Sewell, San Soucie had a brief
discussion with Dininger . 10 A short while later Dininger arrived at the R . D. ter-
minal and ordered the men out on strike.
That afternoon Gilbert Davis, vice president of R. D ., drove from Muncie to
Indianapolis and began an extensive search for the two copies of the document
which Ervin had signed . He was .able to obtain one copy from the mail in which
Sewell had initially placed it but was unable to secure the other copy which had
been given to Capital Paper. The next morning he met with San Soucie and
Dininger and turned over to them the original copy of Ervin 's statement . A short
while later 11 the president of the Respondent concluded the meeting with the
remark, "Well , all right you can go back to work." At about 11 o 'clock that
morning the men at the terminal returned to their jobs and R . D. resumed operations.
At the hearing the Respondent endeavored to prove that the work stoppage at
R. D. had no relation to the request for copies of Ervin's statement and that it
arose solely out of a dispute with that firm over the manner in which R. D. was
adhering to its contract . Thus, Mr. San Soucie and Mr. Dininger testified that for
several weeks prior to February 27, R. D . had not complied with a provision of
its contract with Local 135 in regard to bidding on different runs in the city. It is
true that about February 1, Dininger 'had called on Sewell to inform him that
bids would have to be posted and put into effect about March 1; that on February
28 at the conference between Davis and the union officials there was some dis-
cussi'on as to bids and that that same day bids were posted at the R. D. terminal
in accordance with the Union 's request . On the other hand, Dininger conceded
that no employee at R. D . had ever filed a grievance as to job bidding and that
on February 27, when 'he called the men at the terminal out on strike , he had no
conversation with Sewell in regard to bids. Moreover , Sewell testified, without
contradiction , that between February 1 and the day of the strike he had no con-
versation on the subject of bids with Dininger or any other representative of the
Teamsters . It was likewise admitted that during 12 to 15 years that the Union had
renresented the employees at R. D . there had never been a strike over a grievance.
With this background and in the light of Ervin 's credited testimony as to the events
which occurred in San Soucie 's office on the eve of the strike , it is my conclusion,
and I find, contrary to the testimony of San Soucie and Dininger, that although on
the morning of February 28 the Union broadened its demands to include a stipula-
tion as to bidding procedures , the only original purpose of the work stoppage was to
compel R. D. to turn over to the Union the statement which Ervin had signed.
C. Conclusions
1. The issues raised by the Teamsters ' collective -bargaining agreement with the
secondary employers
Copies of the contracts which the Respondent has with R . D., I & S, Motor
Freight, and McDaniel are in the record.12 They contain, in article IX, the "pro-
tection of rights" or "hot cargo" clause commonly found in Teamster contracts.13
10Ervin was present while the two union officials conversed , but testified that he could
not hear the substance of their remarks
11 Mr San Soucie testified that the meeting lasted from 15 to 20 minutes
12A copy of the Respondent ' s' agreement with Allied Grocers was not offered
'a The terms of this clause, in relevant part , are as follows
It shall not be a violation of this Agreement 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 Agreement 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 involved in any controversy with this or any other Union • and
LOCAL 135 643
The Board has recently held that such clauses are no defense to conduct other-
wise violative of the Act. Local 1976, United Brotherhood of Carpenters and
Joiners (Sand Door and Plywood Company), 113 NLRB 1210, 1215-1216, General
Drivers, etc., Local No. 886 (American Iron and Machine Works Company), 115
NLRB 800. Moreover, while a secondary employer may instruct his employees that
they cease handling goods sought to be boycotted, that is not the case here for the
Respondent does not contend that any of the neutral employers involved in this
case gave any such instructions. Indeed, not only did the supervisory personnel re-
quest their employees to handle Capital freight, in one instance at Allied Grocers,
and in another at McDaniel, the foreman on duty went to each individual em-
ployee on the dock to ask, without success, that he handle the Capital shipment
then waiting to be received. In its brief the Respondent argues that it is significant
that no employer took disciplinary action against any of these employees for their
having refused to handle Capital freight. That, however, as the Board has held
in another case, is immaterial to a disposition of the issues here.14
The Respondent notified the employers with whom it had collective-bargaining
agreements that it expected full compliance with the foregoing "hot goods" clause.
The record contains a copy of a form letter, signed by the Respondent, dated March
20, 1956, and addressed to terminal managers, in which the addressee is reminded
that he is "hereby again notified [emphasis added] that the Union is engaged in
a strike . with Capital Paper 'Company . . . " and that the Union expects
the terminal "to fully comply with the provisions of Article IX; and if you do not,
the Union will act accordingly." The latter phrase in the letter is, of course, a
pointed reference to that paragraph in article IX which provides that the insistence
by an employer that his employees handle unfair goods shall be sufficient cause
for an immediate strike.
2. The responsibility of Local 135 for the conduct of its stewards
The position of job steward for the Respondent Union is provided in article III
of the collective-bargaining agreements which Local 135 has with over-the-road
and local cartage carriers. This article, in all of the foregoing contracts, provides,
in relevant part:
The employer recognizes the right of the Union to designate a job steward
and alternate to handle such Union business as may, from time to time, be
delegated to them by the Union... .
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 lockouts exist.
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 any of whose terminals 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 transported, handled or used by interchanging
or succeeding carriers, whether parties to this Agreement or not, until such con-
troversy is settled.
* * * * * * *
The Union shall give the Employer notice of all strikes and/or the intent of the
Union to call a strike of any Employer and/or place of business, and/or intent of
the members to refuse to handle untair goods The carriers will be given an
opportunity to deliver any and all freight in their physical possession at the time
of the receipt of notice
The insistence by any Employer that his employee handle unfair goods or go
through a picket line after they have elected not to, and if such refusal has been
approved in writing by the responsible officials of the Central States Drivers Council,
shall be sufficient cause for an immediate strike of all such Employer's operations
without any need of the Union to go through the grievance procedure herein
ri See American Iron and Machine Works Company, supra, where the Board said
(at p 801)
Thus, while Section 8 (b) (4) (A) does not forbid the execution of a hot cargo
clause or it union's enforcement thereof by appeals to the employer to honor his
contract, the Act does, in our opinion, preclude enforcement of such clause by appeals
to employees, and this is so whether or not the employer acquiesces in the union's
demand that the employees refuse to handle the "hot" goods. [ Emphasis added.]
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In another provision of the same contracts, article V, stewards are granted super-
seniority for all purposes. Article XXX of the local cartage agreement 15 further
provides that the employer agrees to the posting of notices "by an elected or ap-
pointed official of the Local Union." There was uncontradicted testimony in the
record that at Allied and at the motor carrier terminals here involved, the stewards
were elected by the employees at each of such companies. In the performance of
their duties stewards accompany employees who have grievances in discussion with
management, and in the case of a written grievance the grievance form has a place
for the steward to sign. The stewards also obtain insurance forms from the union
hall for employees who desire them, receive the stamps showing that a member
has paid his dues and, in turn, pass, them out to the employees on the dock. They
also report broken equipment or equipment needing repair to the terminal manager,
and attend stewards' meetings at the union hall.
The Union denies responsibility for the acts of any of the stewards here involved
on the ground that they are selected by their fellow employees, not by the Re-
spondent, so that they are in no sense agents of the Union.
The Act contains a very broad definition of the term "agent" 16 which has
been construed by the Board in numerous decisions. There may be situations in
which a labor organization is not responsible for the acts of a steward, even though
he acts within the scope of his authority In.this case, however, the Union did
not deny that the stewards here involved were authorized to act as such. Conse-
quently, it seems completely immaterial to the question of responsibility whether
the steward is appointed to that post by a union business agent or whether, as here,
the employees at a terminal select one of their number as steward and the Union
then "designates" that individual to act as such pursuant to the terms of article III
of the collective-bargaining agreement. From the facts set forth above it is plain
that the stewards perform many significant duties in furthering the interests of the
Union and, more importantly, that they serve as a channel of communication for
the members and as on-the-job representative for the Union at each of the terminals
where the Respondent has "designated" a steward. Thus, when after a telephone
call to, or other contact with, the union headquarters, the stewards told their fellow
employees that Capital was on strike or that its freight was "unfair" or "hot," it is
my conclusion that they were acting within the scope of their authority and that
their conduct was likewise binding upon the Union. Local 657, International
Brotherhood of Teamsters, etc. (Southwestern Motor Transport), 115 NLRB 981;
International Brotherhood of Teamsters, etc. Local 182 (Lane Construction Cor-
poration), 111 NLRB 952, 953, enfd. 228 F. 2d 83 (C. A. 2); United Brotherhood
of Carpenters and Joiners, Local 55 (Grauman Company), 100 NLRiB 753, 754,
enfd. 205 F. 2d 515 (C. A. 10); Local #1150, United Electrical, Radio & Machine
Workers of America, etc. (Cory Corporation), 84 NLRB 972, 973; Perry Norvell
Company, 80 NLRB 225, 243-244.
3. The allegation that the Respondent induced and encouraged the secondary
employees not to handle Capital freight
The Respondent contends that those employees who refused to handle Capital
freight acted independently and without direction from the Union. At the hearing
the union officers denied ever having ordered or instructed their members not to
handle Capital freight.
In construing the meaning of the words "induce" and "encourage" as they 'ap-
pear in Section 8 (b) (4), the Supreme Court has said "The words `induce' or
`encourage' are broad enough to include in them every form of influence and per-
suasion." International Brotherhood of Electrical Workers, Local 501 v. N. L. R. B.,
341 U. S. 694, 701-702. In another case, where the question was whether a union
had induced a strike by telling its members that it did not have a contract with the
employer in question, the Board observed "A strike call may be given in a forthright
fashion, or informally in a manner that is understood by the initiated." Amal-
gamated Meat Cutters, etc., Local 421 (Great Atlantic and Pacific Tea Company),
81 NLRB 1052, 1057. When a steward such as Davis called the union hall for in-
15 This was in effect at R D, Motor Freight, McDaniel, and I & S.
16 Section 2 (13) provides
In determining whether any person is acting as an "agent" of another person so as
to make such other person responsible for his acts, the question of whether the
specific acts peifoimod were actually authorized or subsequently ratified shall not
he controlling
LOCAL 135 645
structions as to handling Capital freight he was told only that it was "hot." 17 No
more explicit advice was needed, for it is a well-established policy of the Union,
plainly set forth in its contracts, that unfair freight is not handled. In addition,
many of the Respondent's members who appeared as witnesses in this case testified
that they would not handle unfair freight. In the instant case it was only necessary
for the union hall or the steward to tell the men on the dock that Capital freight
was "hot" or that it had "crossed a picket line" to signal the men that they were
not to handle the freight. A direct order from the Union would not have been
more effective.
In the light of the foregoing, therefore, I conclude, and find, that the Respondent
induced and encouraged its members employed at the various secondary employers
here involved not to handle Capital freight in the following instances:
(1) On February 14, at Allied Grocers when Steward Doss told his fellow em-
ployees, among them being Andrew Freeman, that he had refused to receive a
Capital shipment because that Company was on strike and, further, that he "had
called the Union on it."
(2) On February 27, at R. D. when Sam Ervin telephoned the union hiring hall
and was told that Capital freight was "hot goods."
(3) On February 15, at I & S, when Steward Davis told his fellow employees that
they could handle no more shipments from Capital because there was a picket line
at its premises and its freight was "unfair." In each of the foregoing incidents the
statements of the steward or the information from the union hall that Capital was
being picketed and its merchandise was unfair were plainly intended to induce and
encourage those employees not to handle the products of the primary employer.
Moreover, the stewards, as agents of the Union and employees of the secondary
employers, engaged in "concerted refusalls] in the course of their employment" to
handle Capital freight in the following instances: 18
(1) On February 14, at Allied Grocers, when Union Steward Louis Doss, and
his alternate, Shirley Green, refused to work on any Capital freight.
(2) On the following day, at I & S Motor Express when Union Steward Joe Davis
stated that he would have nothing to do with a Capital shipment because it was
"unfair freight."
(3) On or about February 23, at McDaniel, when Union Steward Obra Taylor
refused to complete work on a load of Capital products immediately after discover-
ing that it was "unfair."
(4) On February 27, at Motor Freight, when Union Steward Armstrong refused
to assist in unloading a Capital truck because it "had come through a picket line."
(5) Early in May, at Allied Grocers, when Doss again refused to receive a ship-
ment from Capital.
From the above findings it is apparent that the employees of secondary employers
here involved, including the union stewards whose duties required them to handle
freight, ceased handling Capital freight at the time the Respondent began picketing
the Capital premises and did not handle it thereafter until the Federal Court order
of April 13. The direct evidence of inducement and encouragement, on the part of
the stewards and agents of the Union, provides a background against which the
actions of the employees at McDaniel Freight Lines who refused to receive a ship-
ment from Capital late in February become explainable only as a part of a pattern
of conduct induced and encouraged by the Respondent. Consequently, I infer and
find that the refusal on the part of the McDaniel employees on that occasion was
likewise induced and encouraged by the Respondent. Local 657, International
Brotherhood of Teamsters, etc. i(Southivestern Motor Transport, Inc.), 1115
NLRB 981.
17 This finding is based on the credible, uncontroverted testimony of Terminal Manager
Shelley as to a statement made to him by Davis Since Davis' statement was made
"concerning a matter within the scope of his authority as an agent of the Respondent,
[Shelley's] testimony concerning that statement is admissible, not only as evidence that
the statement was made, but also as evidence bearing on the truth of the subject matter
of the statement " Local 657, International Brothei hood of Teamsters, etc. (South-
ivestern Motor Transport, Inc ), 115 NLRB 981.
18 Since their conduct was part of an overall pattern of activity by the Respondent, it
is immaterial that in some instances only one individual figured in a particular incident
Amalgamated Meat Cutters v. N L. R. B , 237 F 2d 20 (C. A, D C ) ; Seattle District
Council of Carpenters, etc (Cisco Construction Company), 114 NLRB 27, Truck Drivers,
etc., Local 705 (Direct Transit Lines), 92 NLRB 1715, 1721.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The allegation that the objectives of the Respondent were proscribed by Section
8 (b) (4) (A) and (B)
The General Counsel alleged that an object of the Respondent's conduct was (1)
to force the various secondary employers here involved to cease doing business with
Capital and (2) to force or require Capital to recognize Local 135 as the bargaining
agent for its employees. This was denied by the Respondent Union.
In arriving at a conclusion as to the Respondent's objectives in the activity de-
scribed above, the following facts are pertinent: In December 1955 the Respondent
requested recognition as the bargaining agent for Capital's employees and asked that
the Employer enter into a contract covering wages, hours, and other terms and con-
ditions of employment. The following month the Union participated in a hearing
on its representation petition. On February 13, however, and just before the Board
issued its decision directing an election, the Respondent established a picket line at
the Employer's premises and shortly thereafter sought to withdraw the representation
petition. The Union now urges that it is not seeking recognition and that the sole
purpose of the picketing is to protest what it terms the Employer's unfair labor
practices.19 In the order denying the Union's request for withdrawal of its repre-
sentation petition, the Board stated that "the present picketing engaged in by the
Petitioner is action that is inconsistent with the request for withdrawal.. " This
was plainly correct, for despite any contentions of the Respondent as to the objectives
of the picketing, it is obvious, as the Board has held in other cases, that, despite any
disclaimer, the Union was, and is, attempting to obtain, by means of picketing, con-
ditions and concessions normally sought by collective bargaining, and to compel the
Employer to bargain without regard to the Union's representative status. For this
reason, it is my conclusion, and I find, that the picketing conducted by the Respondent
in this case has been tantamount to a continuing demand for recognition. Inter-
national Union of Operating Engineers, Local 12 (Crook Company), 115 NLRB 23;
Construction and General Laborers Union, Local 320 (Armco Drainage and Metal
Products, Inc.), 93 NLRB 751, 752; Curtis Brothers, Inc., 114 NLRB 116; McAllister
Transfer, Inc., 105 NLRB 751, 752; Francis Plating Co., 109 NLRB 35, 36; Petries,
108 NLRB 1318, 1319; Owens-Illinois Glass Co., 112 NLRB 172, 175-176.20
The incidents described above arose shortly after the Union elected not to rely on
Board procedures to gain certification but to obtain recognition by resort to a picket
line. Thus, on February 14, the day after the Respondent began its picketing, the
stewards at Allied Grocers concertedly refused to handle Capital freight and, in
addition, induced and encouraged the employees there to do likewise. In the 2-week
period immediately following that date, the Union, through its stewards and agents,
engaged in the same conduct at the terminals of the motor carriers involved in this
case. After these refusals to handle its freight, Capital made no further deliveries
to any of these secondary employers until after the date of the injunction issued by
the Federal district court.21
190n February 13 the Union filed a charge alleging that Capital had violated Section
8 (a) (1). On May 1 the Regional Office and the Employer entered a settlement agree-
ment as to this charge and the latter posted a notice in compliance therewith On May
18 the Union filed a new charge in which it alleged that the Employer had violated Sec-
tion 8 (a) (3) by refusing to reinstate the strikers The Respondent's picketing of the
Capital premises, which began on February 13, continued throughout this period and
was still in progress at the time of the hearing An offer by the Respondent to adduce
proof of these alleged unfair labor practices was rejected by the Examiner on the ground
that testimony as to those issues was relevant only to a hearing on the charges filed
against the Employer
30 It is significant that when the Union established a picket line at Capital's premises
only 17 employees went on strike, whereas some 50 others in the unit found appropriate
by the Board (Case No 35-RC-1250) remained at work.
ii The only exception to this finding was at Allied where Capital, for a time, made
shipments via Merchandise Warehouse, a nonunion firm, which reconsigned the shipments
so that Capital's name did not appear on the bills of lading when the freight eventually
reached the Allied dock. Even after the entry of the Federal court order, however,
Steward Doss and his fellow employees refused to handle a direct shipment from Capital
and, as a result, the management of Allied discontinued its business relations with Capital.
The Trial Examiner rejected an offer by the Respondent to prove that carriers other
than those named in the complaint had continued to handle Capital freight throughout
the period in question To prove the allegations in the complaint it was not necessary
that the General Counsel establish that the Respondent had, without exception, induced
and encouraged the employees of all employers doing business with Capital to engage in
concerted refusals to handle its products for the objectives proscribed in Section 8 (b) (4).
LOCAL 135 647
It is my conclusion, on the facts set out above, that an object of the foregoing
conduct by the Respondent was to terminate the business relations between the
secondary employers and Capital and further, by so doing, to compel Capital to
recognize it as the representative of the employees, notwithstanding the Union's lack
of certification under Section 9 of the Act. Accordingly, I find that the concerted
refusals of Respondent's stewards to handle Capital freight in the course of their
employment and the inducement and encouragement which the Respondent's agents
gave the secondary employees to do likewise had, among their objectives, if not their
principal objectives, those condemned by Section 8 (b) (4) (A) and (B) of the Act.
Upon the entire record in the case, therefore, I am convinced, and find, that the
essential elements of a violation-inducement, refusal, and unlawful objectives-have
been proved and that by engaging in the above-described conduct the Respondent
Union has violated Section 8 (b) (4) (A) and (B).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Capital, described in section I, above, have a close,
intimate, and substantial 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 thereof.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (b) (4) (A) and (B)
of the Act, I shall recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. In determining the
scope of the recommended order it is relevant to note that in three other cases within
the recent past the Board found that the Respondent here involved violated Section.
8 (b) (4). Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No.
135, affiliated with International Brotherhood of Teamsters (Irvin J. Cooper, et al.),
101 NLRB 1284; Chauffeurs, Teamsters & Warehousemen Local Union No. 135,
affiliated with International Brotherhood of Teamsters (Hoosier Petroleum Company,
Inc.), 106 NLRB 629, enfd. 212 F 2d 216 (C. A. 7); and Chauffeurs, Teamsters, &
Warehousemen Local Union No. 135, affiliated with International Brotherhood of
Teamsters (Marsh Foodliners, Inc.), 114 NLRB 639. Moreover, in the Cooper
case the Board entered a broad order against this Respondent. In the light of the
present record and this background I shall recommend a similar order here to prevent
a recurrence of the unlawful conduct found in this case. Further, since the Board
found it appropriate in the Marsh Foodliners' case to direct that the scope and range
of the Respondent's activities made it advisable to require the latter to publish the
terms of the notice in an Indianapolis daily newspaper of general circulation, I shall
recommend that a similar provision be incorporated in the present order. See also
United Association of Journeymen, etc. (Frank W. Hake), 112 NLRB 1097, 1102.
Upon the basis of the above findings of fact, 'and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. Local 135, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO, has, and its agents have, engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (A) and (B) of the Act by
inducing and encouraging employees of Allied Grocers, I & S Motor Express,
McDaniel Freight Lines, Motor Freight Corporation, and R. D. Motor Express to
engage in a strike or concerted refusal in the course of their employment to perform
services for their respective employers, objectives thereof being:
(a) To force and require such employers to cease doing business with Capital
Paper Company and Consolidated Sales, Inc., and to force the latter companies
to recognize or bargain with Local 135, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, although that
organization has not been certified as the bargaining representative of Capital and
Consolidated employees in accordance with the provisions of Section 9 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.
[Recommendations omitted from publication.]