Local 294, Int'l Brotherhood of Teamsters

National Labor Relations Board - Board Decisions

Sep 19, 1958

121 N.L.R.B. 924 (N.L.R.B. 1958)

924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS of LAw
I Gibsonburg Lime Products Company is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act
2 United Stone and Allied Product Workers of America, Local No 24, AFL-CIO,
is a labor organization within the meaning of Sections 2 (5) and 8 (b) of the Act
Harold Etchison is an agent of said labor organization, within the meaning of
Sections 2 (13) and 8 (b) of the Act
3 By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, the Respondents have engaged in unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication I
Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and Howard Bennett,
Its Agent and Bonded Freightways, Inc. Case No 2-CC-449
September 19, 1958
DECISION AND ORDER
On May 28,1958, Trial Examiner Eugene F Frey issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, the Respondents
filed exceptions to the Intermediate Report together with a supporting
brief
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Leedom and Members Rodgers and Fanning]
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-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner i
ORDER
Upon the entire record in the case and pursuant to Section 10 {c)
of the National Labor Relations Act, as amended, the National Labor
1 in addition to the cases cited by the Trial Examiner, we also rely on Local 47, Inter-
notsonal Brotherhood of Te&msters, etc (Texas tndustrses, Inc), 112 NLRB 923, 924-925
At the time of the issuance of the Intermediate Repolt in this case, the Sand Door case,
cited by the Trial Examiner, was pending before the Supreme Court Since that time,
the Supreme Court has affirmed the Court of Appeals for the Ninth Circuit in enforcing
the Board's order in that case, holding that a "hot cargo" contract does not serve as a
defense to an otherwise unlawful secondary boycott, Local 1976, United Brotherhood of
Carpenters, etc v N L R B, 357 U S 93
121 NLRB No 123
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS 925
Relations Board hereby orders that the Respondent, Local 294, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, representatives, agents, successors, and
assigns, including the Respondent, Howard Bennett, shall:
1. Cease and desist from inducing or encouraging employees of
Industrial Molasses Corporation, or any other employer or person,
other than Bonded Freightways, Inc., to engage in a strike or con-
certed refusal in the course of their employment to transport, or
otherwise handle or work on, any goods, articles, materials, or com-
modities, or to perform any services for their employer, where an
object thereof is to force or require Industrial Molasses Corporation
or any other employer or person to cease doing business with Bonded
Freightways, Inc., or any other employer or person.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) ' Post at the business office of the Respondents in Albany,
New York, and at the terminal or place of business of Industrial
Molasses Corporation in Albany, New York, if that employer is will-
ing, copies of the notice attached hereto marked "Appendix A." 2
Copies of said notice, to be furnished by the Regional Director for the
Second Region, shall, after being duly signed by official representatives
of the Respondents, including Howard Bennett, be posted by the
Respondents immediately upon receipt thereof and be maintained by
them for a period of sixty (60) consecutive days thereafter, in con-
spicuous places including all places where notices to members of
Local 294 and notices to employees of Industrial Molasses Corpora-
tion are customarily' posted. Reasonable steps shall be taken by the
Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Second Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
a In the event that this Order is enforced by a decree of a United States Court of
Appeals, the notice shall be amended by substituting 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."
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 294, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AND ALL EMPLOYEES OF INDUSTRIAL MOLASSES CORPORATION
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members, and em-
ployees of Industrial Molasses Corporation, that:
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT induce or encourage employees of Industrial
Molasses Corporation, or of any other employer or person (other
than Bonded Freightways, Inc.), to engage in a strike or con-
certed refusal in the course of their employment to transport, or
otherwise handle or work on, any goods, articles, materials, or
commodities, or to perform any services for their employer, where
an object thereof is to force or require Industrial Molasses Cor-
poration or any other employer or person to cease doing business
with Bonded Freightways, Inc., or any other employer or person.
LOCAL 294, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
Dated---------------- By-------------------------------------
(HOWARD BENNETT , Bustines8 Agent)
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 a charge filed by Bonded Freightways, Inc., herein called Bonded, the
General Counsel of the National Labor Relations Board, herein called General
Counsel and the Board, issued a complaint in this case on January 21, 1958, against
Respondents Local 294, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union, and Howard Bennett
as its agent, herein called Bennett, alleging that Respondents had violated Sections
$ (b) (4) (A) and 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act, by engaging in, and by various means, inducing
and encouraging employees of Industrial Molasses Corporation, herein called In-
dustrial, and employees of other employers, to engage in, strikes or concerted re-
fusals 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 services for their respective employers, with the object of forcing or
requiring Industrial or other employers or persons to cease doing business with
Bonded. Copies of the charge, complaint, and notice of hearing thereon, were
duly served on Respondents and Bonded. Respondents duly filed an answer deny-
ing the commission of any unfair labor practices, and raising certain affirmative
defenses discussed below.
Pursuant to notice, a hearing was held before the duly designated Trial Examiner
on March 12 and 13, 1958, at Albany, New York, in which all parties participated
,and were represented by counsel, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing on the issues,
and to present oral argument and file briefs. Respondent's motions at the close of
General Counsel's case to dismiss the complaint on the merits were denied; similar
motions at the close of the testimony were taken under consideration and are now
disposed of by my findings and conclusions in this Report. At the close of the
case, General Counsel and Respondents presented oral argument, but none of the
parties have filed briefs.
Upon the entire record in the case, and from my observation of the witnesses
on the stand, I make the following:
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
927
Bonded is a New York corporation with its principal office and place of busi-
ness located in Syracuse, New York, where it has been and is engaged in the busi-
ness of transporting petroleum products, molasses, and other liquids as a common
carrier within the State of New York and between points in that State and points
in the States of New Jersey, Pennsylvania, and Massachusetts. In the course of its
operations in the past year Bonded received a gross revenue in excess of $1,400,000,
of which more than $400,000 was'derived from its operations as a link in interstate
commerce, and of which approximately $500,000 was received for services rendered
to enterprises which produce or handle- goods and ship such goods out-of-State,
or perform services outside the State in which they are located, valued in excess
of $50,000. I find that at all material times mentioned herein Bonded has been,
and now is, engaged in commerce within the meaning of the Act.'
Industrial is a New Jersey corporation with its principal office and place of busi-
ness located at Leonia, New Jersey, where it is engaged in the business of purchasing,
processing. selling, and transporting molasses. It maintains a terminal and proc-
essing facilities at Albany, New York, known as its Albany plant.
Both Bonded and Industrial are employers within the meaning of Section 2 (2)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2 (5) of the
Act, which admits to membership employees of Bonded and Industrial . Respond-
ent Howard Bennett at all material times mentioned herein was employed by the
Union as business agent.
III. THE UNFAIR LABOR'PRACTICES
A. The facts
1. Relations between the Employers and the Union
Between January 1, 1956, and January 6, 1958, Bonded continuously hauled
molasses, as and when requested by Industrial, from the Albany terminal of Indus-
trial to consignees of that company throughout the State of New York. Industrial's
calls for such service were seasonal, involving only 1 or 2 a month in the summer
months, and being heaviest in the months of November through May, when it
required from 2 to 6 trucks a day from Bonded. In this period, it was Industrial's
practice to call upon Bonded only to handle "overflow" hauls which it could not
handle with its own equipment.
At all times mentioned herein, the drivers of Industrial (being four at the time
of the events described herein) have been represented by the Union, with which
Industrial executed a collective-bargaining contract in May 1956, effective from
March 12, 1956, to April 1, 1958, in which it recognized the Union as the exclusive
bargaining representative of its drivers and pumpmen at the Albany plant. Section 9
of that contract provides as follows:
Section 9 SUB-CONTRACTING
(A). The Company will not, so long as equipment and personnel are available,
contract work which is customarily performed by employees in the bargaining
unit, to any other Company. When necessary to contract work, every effort
shall be made to give the work to a contractor who employes members of
the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers.
In accordance with the first sentence of this provision, Industrial used Bonded to
handle only its "overflow" hauls from mid-1956 to January 6, 1958.
11 find that Bonded is the primary employer, on the basis of the' Board' s decision in
the Sand Door & Plywood case quoted infra, and it is clear from the above facts that
the scope of its business warrants the assertion of jurisdiction under the standards set
forth in Breeding Transfer Company, 110 NLRB 493. See Truck Driver's Local Union
No. 649, etc. (Jamestown Buiideis Exchange, Inc ), 93 NLRB 380
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 1952, the Union tried to organize the employees of Bonded, calling a strike
and engaging in picketing at various terminals of Bonded in the Syracuse area, as a
result of which the Board in April 1953, conducted elections among 5 separate voting
groups at 3 terminals of Bonded. The Union lost the one election in which its name
appeared on the ballot; another Teamster local secured a majority of votes in a
unit of mechanics at the Utica, New York, terminal; in the other three units, covering
the Utica and Rensselaer terminals, where the Union was not on the ballot, a
majority of the employees voted for Bonded Drivers and Mechanics Independent
Union, an independent labor organization,2 which still represents employees in
those units. Employees and facilities in the Rensselaer terminal service customers
in the Albany area, including Industrial. Since the election, Bonded has not been
recognized by the Union as a "union" carrier.
2. The events of January 6, 1958
When the Industrial drivers reported at the Albany garage at 3 a. in., on January 6,
1958, as usual , to gas up their trucks and take them to the terminal for loading, they
discovered that all of them had been assigned to haul molasses from a nearby
terminal of a competitor of Industrial, and two of them had been given short hauls
of about 90 miles each to points in the New England States. On arriving at the
terminal, the union-shop steward, George E. Van Deusen, found 4 Bonded trucks
being loaded for overflow hauls, 1 to a consignee about 160 miles `distant within
New York State. When Van Deusen told the other Industrial drivers about the
Bonded assignments , the two assigned to the short trips, Pitcher and Burnett, com-
plained about their assignment -to short hauls, while a Bonded driver was given
a long haul which would net him about $12 more than they would receive.3 They
told Van Deusen this had "gone far enough," and that they were going to stay
there to "get this thing straightened out" by speaking to the Industrial terminal
manager, Andrew LeGare, when he came in. After discussion among themselves,
the four decided not to gas up their trucks or load the tanks, according to their
customary routine, but to wait for LeGare. When Assistant Terminal Manager
John Barton arrived shortly after, Van Deusen told him in the presence of the other
drivers that Pitcher and Burnett had a grievance and that "we will stop work right
now, and will not pull out until we settle this with Andy," and he asked Barton to
call LeGare, and also to get in touch with Robert E. Quist, secretary of Industrial
who handled its labor relations. Barton called LeGare on the telephone about
5:30 a. in., told him the men were on strike, and asked him to come to the terminal
at once. LeGare arrived at the terminal about 6:15 a. in. In the meantime, Van
Deusen told the drivers of the four Bonded trucks what the Industrial drivers were
doing, and asked the Bonded driver who was assigned to the long New York run
not to drive his equipment out. That driver, who was a member of the independent
union at Bonded, acquiesced and did not haul his tank out, although it was loaded;
the other Bonded drivers, all of whom were members of the Union, did not load
their units but drove them back to the Bonded terminal empty, after one of them
asked Van Deusen if they could drive out empty, and he told him it was all right
for them to do so.
When LeGare arrived, he found his four drivers waiting, and asked Van Deusen
what the trouble was, if they were on strike. Van Deusen replied that they would
not work "on account of Bonded" pulling trips out of the terminal, that the drivers
thought Industrial had taken the long trips away from them long enough, and that
"we have got to get this thing settled right now," and that they wanted to talk to
Quist. LeGare called Quist at his home in Leonia, New Jersey, about 7 a. in.,
told him the men were on strike, and asked him to come up at once. Quist asked
to speak to Van Deusen, and LeGare called him to the telephone. Quist asked Van
Deusen what the strike was about, Van Deusen replied that the "trouble was
Bonded," that Industrial could not load Bonded out of its terminal. Quist asked if
it was an "authorized" strike, and Van Deusen said that it was. Quist asked if
business agent Howard Bennett of the Union had been notified, and Van Deusen
said, no. Quist told Van Deusen to notify Bennett that he (Quist) would arrive
in Albany about 10 a. in. to talk to them. Van Deusen at once drove to Bennett's
home in Albany with the other three drivers, informed him of the work stoppage,
and the reasons for it, and said that Quist was coming to Albany to discuss the
matter with them at the union hall. Bennett arranged to meet Van Deusen at the
union hall about 8 a. in. The drivers returned to the terminal , but did not work.
2 103 NLRB 407 and 105 NLRB 216. I take judicial notice of the Board proceedings
and action in that case.
2 Both Bonded and Industrial drivers were paid on a mileage basis
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS 929
Quist and LeGare had an all-day conference ( 10 a. in. to 4 p. m.) with Bennett
and a Mr. Smith of the Union , and the four drivers, at the union hall. At the
outset , Quist asked Bennett what the strike was about . Bennett replied that
Industrial had been violating Section 9 of the union contract by using drivers and
equipment of Bonded , which was not recognized as a union hauler by the Union,
to handle all overflow work , without first trying to hire a union carrier, and that
Industrial was giving Bonded the longer, better -paying runs which the Industrial
drivers were entitled to handle. Van Deusen said the drivers had stopped work
because of the assignment of longer runs that day to Bonded , and the failure of
Quist to adjust this grievance in the past at the request of the employees , and that
the strike would continue as long as Industrial used Bonded for overflow work.
Bennett claimed that , under the contract , the Industrial drivers were entitled to the
longest runs on the basis of seniority , and that two of them had a claim for damages
under the contract against Industrial because of its failure to assign the long runs
that day to them . Quist answered that he was using Bonded because its rates were
lower , and he felt that his use of that carrier did not violate the contract . Bennett
argued that under the contract the first obligation of Industrial was to try to procure
a union-recognized hauler to handle all overflow business , and when it could not
procure one, it could then place the business with any independent , or nonunion
carrier. Quist admitted that Section 9 of the contract in terms placed this obliga-
tion on Industrial . Bennett said there were union carriers in the Albany area which
Industrial could use. When Quist asked who they were , Bennett and Van Deusen
named three concerns , including Leaman Transportation Corporation (hereafter
called Leaman)? Quist replied that Leaman had a license to haul molasses, like
Bonded, but the others did not . Bennett said that if Industrial used Leaman, that
would settle the strike, and that after Industrial had "exhausted" the equipment of
Leaman , or any other union-recognized carrier, it could use Bonded for overflow
work. He also warned that the strike could not be settled , and "the doors would
not open ," until Industrial stopped using Bonded.5 The union men maintained this
position throughout the discussion , and at the end Quist finally agreed to use Leaman
thereafter for the overflow work. Bennett then told the four drivers "Let's get
back to work , and let's get rolling."
The drivers returned to the terminal immediately after the meeting , loaded their
tankers, and resumed deliveries that night and the next morning. At the same time,
Industrial called upon Leaman for overflow hauls. However , since a backlog of
about 15 hauls had accumulated that day due to the strike , Leaman could not
furnish enough equipment to handle all the overflow that evening , and when Quist
mentioned this to Van Deusen , the latter said that since Leaman could not handle
the backlog , Quist was entitled to call upon Bonded for the extra equipment needed
to clear up the backlog . Quist accordingly used Bonded trucks to help clear up the
accumulation . Since January 6 , 1958, Industrial has given the overflow work to
Leaman , and has not used Bonded equipment except on the occasions when Leaman
could not furnish enough equipment to handle the overflow .6
B. Contentions of the parties; concluding findings
I find from the above facts that the four truckdrivers of Industrial engaged in a
concerted work stoppage on January 6, 1958, which arose out of a grievance of
two of them generated by the use by Industrial of trucks of Bonded , a "nonunion"
carrier, to handle overflow work . The pleadings and arguments of counsel raise
two questions for decision: (1) Did the Union and Bennett induce or encourage the
work stoppage , so as to make them responsible therefore , and (2 ) if so, did the
work stoppage amount to a secondary boycott, with the proscribed objective of
compelling Industrial to cease doing business with Bonded , or was it a legitimate
* At the time , employees of Leaman were represented by another local of the Teamster
Union, located in Glens Falls, New York.
5 As an alternative Bennett and Smith suggested that Industrial might bring more
equipment of its own into the Albany terminal , and hire more union drivers to run it, but
Quist would not agree at the moment , saying he wanted to think that over, but that
Industrial might adopt that plan sometime in the future , as it intended to expand opera-
tions at that plant
6 These findings are based on a composite of the credible testimony of Quist, LeGare,
Bennett, and Van Deusen , which is mutually 'corroborative in the main, and documentary
and stipulated evidence . Testimony of any of these witnesses at variance with the findings
is not credited
487026--59---vol. 121-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
primary strike of Industrial employees caused by a grievance arising out of their
employer's breach of its collective-bargaining contract?
1. The responsibility of Respondents
Respondents contend that the work stoppage was a spontaneous, "self-generated"
concerted activity of Industrial's employees, triggered by a legitimate grievance of
two of them, and that Respondents had nothing to do with its initiation or continu-
ance. The record shows that the strike was suggested by drivers Pitcher and Burnett
as soon as they learned that they had been assigned short hauls while a Bonded
driver was getting a longer one, and to this extent it can be said the strike was
started by these two employees. The record also shows that Business Agent Bennett
had no part in it and did not learn of it until several hours later. However, I am
satisfied from other facts in the record that the Union, and Bennett as its agent, are
legally responsible for the work stoppage. The record shows that the complaining
drivers first learned about the assignment of the long run to Bonded from the union-
shop steward, Van Deusen, hence it is inferable that there would have been no
complaint, or work stoppage, if he had not checked the dispatch sheet showing that
assignment, and told Pitcher and Burnett about it. Under the collective-bargaining
contract, Van Deusen, as shop steward, is accorded top seniority during his term of
office. He also has the right to check "the day's assignments from the standpoint of
seniority, and claims for seniority violations for assignment of runs shall be made
within 72 hours of alleged violations or be considered condoned by the employees"
(section 8 (I) ). - He also has the right, as a union representative, to examine and
correct the seniority list which Industrial is required to maintain at all times (sec-
tion 8 (E) ). If, a grievance arises between Industrial and an employee concerning
the effect, application, or interpretation of the contract, or any claim of violation
thereof, the shop steward has the duty of attempting to adjust the grievance with
the employee involved and the "foreman of the shop," as the first step in the
grievance procedure. Failing settlement at that stage, he must take it up with "an
authorized representative of the company" (section 4 (A), (B), steps A, B). If not
settled at that point, the steward must call in the "representative of the union"
(obviously the next higher representative, the business agent), who will try to
adjust the dispute with the authorized company representative and the shop steward
(step C). Bennett admitted that Van Deusen contacted him regarding all problems
or grievances arising out of the contract, and that he was Bennett's source of informa-
tion and point of contact with the union members on such problems. I find on these
facts that Van Deusen was an agent of the Union in the plant on matters involving
administration of the contract and rights and grievances of union members there-
under, and that when he checked the dispatch sheets on January 6, 1958, to ascer-
tain the assignments, he was exercising the authority given to him under the contract;
as the on-the-spot union representative, to police the contract by learning whether
Industrial was complying with its seniority provisions. When he advised the drivers
of the favored assignment to Bonded, and two of them desired to strike, he did not
forbid them to do so, pending resort to the grievance procedure, but instead joined
in the work stoppage with them, told management it was an "authorized" strike, and
continued it throughout the day until the employer capitulated to the Union's de-
mands. On these facts, I am satisfied and find that the Union, through the actions of
its representative in the plant, Van Deusen, in effect initiated and participated in
the work stoppage from the outset.?
Furthermore, I find from credible testimony of Van Deusen and LeGare that:
Before Industrial signed the contract with the Union in May 1956, it had used
Leaman, a union hauler, for its overflow work, which was comparatively little.
After execution of the contract and in the fall of 1956, Industrial began to give all
overflow work to Bonded, and on various occasions Van Deusen complained about
it to LeGare, saying he could not use trucks of Bonded because that concern was
not "recognized" by the Teamsters, and it was a violation of the contract. In the
summer of 1957, Industrial moved some of its equipment from Albany to other
terminals and laid off some junior drivers at Albany, but assured Van Deusen the
equipment would be returned in the busy season. When business picked up in the
fall, Industrial began to use Bonded exclusively for overflow work, and when
Van Deusen complained about it repeatedly, and said it violated the contract, he was
told that Industrial had a right to use Bonded, and that Van Deusen was not running
the company. In this period, Van Deusen knew that the Bonded drivers were
7 Local 135, International Brotherhood of Teamsters, etc. (Capital Paper Company,
et al.), 117 NLRB 635, and cases cited at page 644.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS 931
represented by an independent union, and reminded LeGare of this several times
when he asked LeDGare to comply with section 9 of the contract by using a carrier
"recognized" by the Teamsters. Notwithstanding his complaints, Industrial con-
tinued to used Bonded for all overflow work. After detailing his unsuccessful efforts
to secure compliance with section 9 and satisfaction of other grievances, Van Deusen
also testified that "eventually, if it kept up, there was going to be an action such as
was taken on the morning of December 6th." 8 Bennett admitted that the problem
of assignment of longer runs to Bonded had been brought to his attention by
Van,Deusen more than a month before the work stoppage, but he had not found time
to take it up with the company representatives personally, nor had he invoked the
contract grievance procedure to have it settled. These facts and admissions of
Bennett further convince me that the work stoppage of January 6, 1958, was not a
spontaneous action of the drivers, but merely the culmination of a long-continued
effort by the Union, acting through its plant representative, Van Deusen, to per-
suade Industrial to cease assignment of overflow hauls to Bonded and give them to
a carrier recognized by the Union.
Bennett's actions after learning of the strike also compel the conclusion that the
Union ratified and continued it until the employer capitulated to the Union's demands.
I find from Bennett's testimony that: When Van Deusen told him about the work
stoppage, he asked Van Deusen if the employer had been notified, and why the strike
had occurred without notification from the Union. Van Deusen replied that the
problem had been going on a long time, that he had been unable to secure a confer-
ence with Quist about it before, and the men "had had enough, they were tired of
it." Bennett then arranged to meet Van Deusen later at the union hall, but he
admits he did not then order the drivers to go back to work. Instead he participated
in the conference with the company representatives, as business agent of the Union
assigned to police the contract and handle grievances of these employees, in an effort
to persuade the employer to satisfy their complaints about Bonded. In the discus-
sion, he made it clear to the employer that the work stoppage would continue until
Industrial ceased doing business with Bonded. He maintained this position in the
presence of all the drivers, two of whom (Van Deusen and Hardy) were not directly
affected by the dispute. I also note that, after hearing of the strike, Bennett never
ordered the employees back to work while he and Van Deusen attempted to settle the
dispute under the grievance procedure of the contract. If he had resorted to that
procedure, he could certainly have sent the one driver not involved in the grievance
back to work, where his services were sorely needed that day, while he, Van Deusen
and the two drivers complaining of the discrimination conferred with the employer.
It was only after the employer capitulated on this demand that Bennett ordered the
drivers back to work. I therefore conclude and find that the Union and Bennett
ratified and supported the work stoppage until the employer capitulated, and that
both Respondents are legally responsible for the inception and continuance of the
strike .9
2. The purpose of the strike
Respondents contend that the strike was a primary strike by employees against
their employer caused by its violation of section 9 of the contract in assignment
of overflow work to Bonded, a nonunion carrier, without making prior efforts to
place such business with a union carrier; hence, the strike was a legitimate, protected
activity, and the fact that the employer's compliance with that clause to settle the
strike may have resulted in some financial detriment to Bonded is an incidental
result of enforcement of a legal contract clause by legitimate concerted activity,
which does not convert Respondents' activities into a secondary boycott. At first
glance, all the elements of a normal primary strike appear to be present: a dispute
of long standing between the primary employer and its employees over the applica-
tion and interpretation of a contract clause, the employer's admitted violation of the
contract and refusal to abide by it, which had resulted in some financial detriment
to the employees, and the final work stoppage of the employees solely at that em-
ployer's place of business to compel it to cease the violation.
The parties agree, however, that the clause, breach of which caused the strike,
was in effect an agreement by the employer not to recognize or do business with a
nonunion carrier until after it had first used the labor of carriers recognized by the
Union. It required the employer to prefer employers of union labor over those
8 Obviously, he meant January 6
9 Cf Commission House Drivers, etc. Local No. 400, at al . (Euclid Foods, Inc.),
118 NLRB 130, 152
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employing nonunion labor. Hence, it is clear that the basic, underlying objective
of the strike was to compel Industrial to exercise that preference. Since Bonded
was the nonunion carrier long used in violation of the clause, the union agents at
all times tried to persuade Industrial to cease use of that concern for overflow work,
and when persuasion failed, exerted strike pressure for that purpose. I therefore
conclude that the Union's purpose in striking was to compel Industral to cease doing
business with any employer, or employers, of a certain class, i. e., those employing
union labor. In reaching this conclusion, I do not accept General Counsel' s premise
that the strike was aimed solely at Bonded because of the Union's past failure to
organize that employer. Aside from the 1952 strike against Bonded and the ensuing
Board election which the Union lost, there is no proof that the Union has since
attempted by direct action to organize its employees or otherwise compel Bonded
to recognize the Union. In fact, General Counsel admits that the Union has no
"active dispute" with Bonded. Another indication that the Union had no specific
animus against Bonded as such, but only as a member of a class of employers employ-
ing "nonunion" labor, lies in the facts that, when the strike ended and Industrial
found that its immediate overflow requirements could not be handled by a union
carrier, the Union agreed that Industrial had a right to call upon Bonded for trucks,
and that Industrial did so, and has continued to use that concern in like circum-
stances ever since, without objection from the Union.
However, Respondents argue strongly that the strike must be considered a primary
strike because (1) the circumstance which triggered it was a real grievance of two
employees on January 6, 1-958, over a specific loss of earnings which they would
incur due to Industrial' s assignment of more lucrative runs to Bonded drivers, and
(2) other grievances regarding wages, hours, and working conditions had existed
for some time before the strike, and were adjusted in the settlement conference.
As to the first point, while it is clear that the assignment of better-paying runs to
Bonded drivers on January 6 was the event which finally goaded the Industrial drivers
to strike, Van Deusen's testimony noted above makes it clear that this was but the
final complaint of a long series made by the Union in the past about the use of
Bonded, with the general purpose of causing Industrial to prefer union labor and thus
comply with its contract. This conclusion is further supported by Van Deusen's
admission that Industrial was compelled that morning to give at least one long New
York State haul to Bonded, and could not favor one of its drivers with that assign-
ment, because Bonded had no license to haul across State lines into New England,
the destination of the two shorter runs given to the complaining Industrial drivers.
Hence, it is clear that, to comply with the Union's interpretation of the contract
that morning, Industrial would have been required to give the New York run to
one of its own drivers, and then either find another hauler who could make the New
England hauls, or refuse to make them entirely until such time as they might be-
come "long" hauls (in comparison with others) which its own drivers would take.
But, no matter which course it pursued, the end result would have been the same:
it would have had to cease doing business with Bonded that day and perhaps for an
indefinite time in the future.
As to the second point, the record shows that during the January 6 conference,
the union representatives brought up other grievances for discussion, such as assign-
ment of Industrial drivers to make hauls from terminals of other customers while
allowing Bonded drivers to haul from the home terminal, assigning Saturday hauls
to Bonded rather than to Industrial drivers, keeping the terminal open longer hours
daily, and replacing unsafe equipment. These grievances were adjusted in part by
Quist's agreement to replace one piece of equipment with a better unit, to keep the
terminal open an hour longer each day, and to give Saturday hauls to his own
drivers. Industrial has operated in accordance with this settlement ever since.
However, although the record shows that some of, these grievances had been voiced
by Van Deusen to company representatives in the past, he admitted several of them
were "little problems" which he had not attempted to settle under the contract
grievance procedure or even brought to Bennett's attention for assistance and action.
I am satisfied that these grievances were not the cause of the work stoppage, but
merely an accumulation of minor grievances which the union representatives brought
up during the conference over the main problem of the use of Bonded trucks, in
order to get them all settled at one sitting . However, the fact that other grievances
may have existed and were settled at the meeting which grew out of the strike,
,is immaterial , for even if I assume that those grievances were in the minds of the
employees when they struck, and were in some part responsible for the strike, the
Supreme Court has held that, in order to find a violation of Section 8 (b) (4) (A), it
is not necessary that the sole object of the strike be that of forcing the employer to
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS 933
cease doing business with another employer. '0 It is no defense that other motives
may have entered into the strike action of Respondents, so long as one object
thereof was to require Industrial to cease doing business with Bonded."
I also reject the argument of Respondents that the general objective found above
takes the case out of the statute because the strike to enforce section 9 of the con-
tract did not result in total cessation of business with Bonded or any other non-
union carrier. I consider this immaterial. As General Counsel points out and the
record shows while enforcement of the preferential clause still allowed Industrial
to do business with Bonded as a last resort, the great fluctuation in volume of over-
flow work of Industrial, which is due to factors beyond control of either Industrial
or the Union, brings periods in which the overflow requirements can be satisfied
entirely by a union carrier, in which event Industrial is required by the contract to
give no business whatever to a nonunion carrier, like Bonded; and this has occurred
frequently since the strike. Whether the prohibition be total or partial at any time,
the salient fact is that Industrial is compelled by the clause, and was in fact com-
pelled by the strike pressure of the Union, to cease doing business at will with
another employer, and this in my opinion brings the Union's general objective well
within the statutory language.
The final and crucial question is, whether Respondents' activities at the plant of
Industrial for the broad, general purpose found above, falls within the proscription
of Section 8 (b) (4) (A). General Counsel argues that on the facts here Industrial
must be considered the secondary, or neutral, employer, and Bonded the primary
employer, even though the Union had no active dispute with Bonded at the time of
the strike, and relies on the rationale of Board decisions in the Sound Shingle Co.,
Sand Door & Plywood, and Reilly Cartage cases.12 In the Sound Shingle Co. case,
the unions caused employees of Sound Shingle to refuse to handle shingles of a
Canadian producer merely because they were not made by union labor and did
not bear the union label. The Board held that such refusal was aimed at forcing
Sound Shingle to cease using the products of that producer and, to that extent, to
cease doing business with it, which was an object proscribed by the Act. The unions
argued that the strike was privileged because it was against a primary employer,
and that there was in fact no secondary boycott. The Board rejected that defense,
saying (101 NLRB at page 1161) :
It is true that in the usual type of secondary boycott there is a dispute with
one employer followed by secondary activity against another employer with
whom he has business dealings, to force a cessation of business with the primary
employer. But because this kind of secondary boycott is more usual or more
frequent does not mean that it is the only kind Congress intended to reach.
We do not believe that, as to the type of conduct now before us, Section 8
(b) (4) (A) contemplates the existence of an active dispute, over specific
demands, between the union and the producer of the goods under union in-
terdict. The legislative history surrounding the enactment of Section 8 (b)
'(4) (A), while difficult as a guide in many respects, does furnish reasonably
clear guidance on the precise issue here. The Senate Committee Report on
this section indicates that no demand upon the producer of the boycotted
product is necessary to sustain the charge that a union has engaged in the type
of "secondary boycott" we have here under consideration.
After referring to the legislative history of Section 8 (b) (4) (A) and to specific
examples of secondary boycott situations mentioned therein by the framers and
proponents of the Act, the Board concluded (101 NLRB at page 1163) :
Thus, the legislative history amply demonstrates that when a union causes
employees to refuse to work on the products of any producer other than their
employer because that product is, as he, nonunion, and it does so with the
object of causing their employer to cease using the product of, or doing business
with, the other producer, that conduct constitutes a secondary boycott of the
type which Section 8 (b) (4) (A) was intended to proscribe.
"O N. L. R B. v. Denver Building and Construction Trades Council, et al. (Gould &
Preisner), 341 U. S 675, 689.
n N. L. It. B. v. Wine, Liquor & Distillery Workers Union, Local 1, et al., 178 F. 2d
584, 586 (C. A. 2).
Is Washington - Oregon Shingle Weavers' District Council, et al. (Sound Shingle Co.),
101 NLRB 1159, enfd. 211 F. 2d 149 (C. A. 9) ; Local 1976, United Brotherhood of
Carpenters , et al. ( Sand Door & Plywood Co .), 113 NLRB 1210, enfd . 241 F. 2d 147
( C. A. 9) ; Marie T. Reilly, d/b/a Reilly Cartage Company, 110 NLRB 1742.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although this case involved a "product boycott," I think that the Board's reasoning
applies as well to a "service boycott" like that at bar, where employees refuse to
perform services for their employer because nonunion labor also performs services
for him or on his premises. Section 8 (b) (4) (A) specifically includes inducement
or encouragement of employees of any employer "to engage in a strike or concerted
refusal in the course of their employment . . . to perform any services ." with
an object of "forcing or requiring any employer . . . to cease doing business with
any other person." On enforcement proceedings in the Sound Shingle case, the
Court of Appeals for the Ninth Circuit disposed of the unions' argument that there
was no evidence of a dispute between it and the Canadian producer, in the following
language: 13
The Union's argument that there was no evidence of a dispute between it and
the Canadian plants is without merit. If that were true, it would not make the
Union's conduct any more excusable. The prohibited object of the boycott is
stated by the statute to be "forcing . . . any employer or other person to cease
using . . . the products of any other producer, processor, or manufac-
turer. . That is a prohibited object whether the union has or has not a
dispute with such "other producer, processor, or manufacturer." In fact, if
the object is sought, not because of any dispute, but merely because.the union
dislikes the other producer for any reason, or for no reason, the conduct would
appear even more reprehensible.
I conclude that the reasoning and decisions of both the Board and court of appeals
are apposite here and require rejection of Respondents' defense.
The Sand Door & Plywood case was another product boycott case, in which the
unions induced employees of Havstad & Jensen, a contractor at a building site, to,
refuse to hang doors made by a nonunion manufacturer, Paine, and distributed by
the Charging Party, Sand Door, through retail outlets to contractors. In deciding
the question of jurisdiction, the Trial Examiner had considered the contractor whose
employees were so induced as the primary contractor. In reversing him on that
point, the Board, said (113 NLRB 1210, at 1211, 1212):
We agree with the General Counsel that the Trial Examiner erroneously desig-
nated Havstad & Jensen as the primary employer in this case in considering
whether jurisdiction was to be asserted. As hereinafter found, Havstad & Jen-
sen was a neutral employer whose employees were unlawfully induced or en-
couraged to refuse to install the doors in question. As such, Havstad & Jensen
is a secondary employer within the meaning which we customarily attach to
that term. Furthermore, we agree with the General Counsel that Paine is a
primary employer within the meaning of the Jamestown jurisdictional rule.
Thus, the violation found herein is similar to that involved in the Sound Shingle
Co. case. As in that case, the Respondents seek, by proscribed means, to force
or require an employer to stop handling the nonunion product of another manu-
facturer although no active dispute exists between the nonunion manufacturer
and the Respondents The Board there held that such conduct "constitutes a
secondary boycott of the type which Section 8 (b) (4) (A) was intended to
proscribe." Implicit in that finding was the further finding that the manufac-
turer of the nonunion product was in the position of a primary employer.
In that case the unions also argued that their activity was primary and legitimate
because their only objective was to compel the contractor to use only union-made
materials in accordance with its union contract. The Board rejected that argument
(113 NLRB 1210 at pp. 1213, 1214) :
3. We find no merit in the Respondents' contention that, even assuming that
there was inducement and encouragement of a concerted refusal to hang the
doors, it was not for an object proscribed by the Act. In effect, the Respondents
contend that their activity was primary because its only objective was to require
Havstad & Jensen to use union-made materials in accordance with their contract,
hereinafter referred to, and because the Respondents had no active labor dispute
with Paine. As indicated above, we regard our decision in Sound Shingle Co.
as dispositive of this issue. Here, as there, a direct object of such inducement
was to force or require the secondary employer to cease using or handling the
product of the primary employer, another manufacturer. We held that such a
product boycott is proscribed by the Act, even in the absence of an active dispute
over specific demands with the manufacturer of the nonunion product. As it is
clear, under Board precedents, that, in order to find a violation of Section 8
" Supra at p. 152.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS 935
(b) (4) (A), the object proscribed by the Act need not be the sole object of
the conduct under scrutiny, we conclude that the proscribed object necessary to a
finding of a violation exists in this case.
For reasons stated above, I consider the Board's ruling controlling here.
Respondents also argue that their enforcement of Section 9 of the contract by
strike pressure removes such conduct from the proscription of Section 8 (b) (4) (A)
under the ruling in the Conway Express case.14 In that case, the union caused its
members employed'at plants of secondary employers to refuse to handle goods of a
struck primary employer, relying upon "hot cargo" clauses in the union's contracts
with the secondary employers which reserved to the union and its members the right
to refuse to handle such goods. The Board held that the union's conduct did not
violate the Act, on the theory that there was no literal strike or refusal to work, due
to the secondary employers' advance consent to a boycott of the struck employer.
The same contention was raised by the union in the Sand Door & Plywood case,
where its contract with the secondary employer provided that workmen would not be
required to handle nonunion material. The Board rejected that contention, saying
(113 NLRB 1210, at pages 1215, 1216) :
It is well settled that, where an employer, at the request of a union which
refrains from the use of threats or direct appeals to his employees, voluntarily
agrees to boycott the goods of another employer, there is no violation of
Section 8 (b) (4) (A) because there has been neither a strike nor inducement
or encouragement of employees to engage in such conduct. What an employer
may be induced to agree to do at the time the boycott is requested, he may be
induced to agree in advance to do by executing a contract containing a "hot
cargo" clause. Insofar as such contracts govern the relations of the parties
thereto with each other, we do not regard it our province to declare them
contrary to public policy. However, we do not agree that unions, which are
parties to such contracts, may approach employees of the contracting employer
and induce or encourage them to refuse to handle the goods of another em-
ployer with immunity from the sanctions of Section 8 (b) (4) (A). In our
opinion such conduct constitutes inducement or encouragement of employees
to engage in a concerted refusal to handle goods for an object proscribed by
Section 8 (b) (4) (A) no less than it does in the absence of such agreement.
Such conduct is contrary to the express language of the statute, and therefore
cannot be validated by the existence of a contract containing a "hot cargo"
clause.
The Board concluded that
... regardless of the existence of a "hot cargo" clause, any direct appeal to
employees by a union to engage in a strike or concerted refusal to handle a
product is proscribed by the Act when one of the objectives set forth in
Section 8 (b) (4) (A) is present.
In reaching this conclusion, the Board expressly overruled the inconsistent decision
in the Conway case. I conclude that the Board's reasoning and conclusion applies
with equal force to the facts here, and requires rejection of Respondents' similar
contention.15 It must be noted that in the Sand Door & Plywood case the Board
also found that an additional object of the unions' conduct was to compel the
distributor, Sand Door, to cease doing business with Paine, the door manufacturer,
which is likewise proscribed by Section 8 (b) (4) (A) of the Act. Respondents
here were motivated by a similar objective.is
In accordance with the above cases, and in the light of the entire record in this
case, I conclude and find that Respondents on January 6, 1958, induced and encour-
aged employees of Industrial, a secondary employer, to engage in a strike or
concerted refusal to transport, or otherwise handle or work on, any goods, articles,
14International Brotherhood of Teamsters, etc, Local 294 (Henry V Rabouin, d/b/a
Conway's Express), 87 NLRB 972, 981-983, affd 195 F 2d 906 (C. A. 2).
'6 See also Reilly Cartage Company, 110 NLRB 1742, where the Board reached a similar
conclusion on somewhat similar facts, rejecting the Conway doctrine in the process.
"The Board Order in the Sand Door & Plywood case was enforced by the Court of
Appeals for the Ninth Circuit, 241 F. 2d 147, which sustained the Board's rulings on
the above points. The court decision is pending before the United States Supreme Court
for review on the union's petition for certiorari, 355 U S 808. Pending the final deci-
sion of the Supreme Court, I must of course follow the Board's decision, particularly
where sustained by the Court of Appeals Novak Logging Company, 119 NLRB 1573.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials , or commodities , or to perform any services for their employer, with an
object of forcing or requiring that employer to cease doing business with Bonded,
another employer, and that by engaging in such conduct Respondents have violated
Section 8 (b) (4) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above , occurring in connec-
tion with the operations of the Employers 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 of commerce.
V. THE REMEDY
Having found that Respondents have violated Section 8 (b) (4) (A) of the Act,
I shall recommend that they cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
The record shows that Bonded has numerous other customers in the Albany,
New York, area, including some whose employees are members of the Union and
with whom the Union has collective-bargaining contracts with preferential clauses
similar to that involved here. Respondents admit that this clause is common in
many contracts of Teamster locals with carriers . In view of these facts, and my
finding of the broad, general scope of the objective of Respondents ' activities found
illegal herein , it may reasonably be anticipated that Respondents will engage in
similar unfair labor practices involving union carriers or employers with whom
Bonded may do business in the future, and other nonunion carriers or employers
with whom Industrial may do business in the future. I shall therefore recommend
that the Board enter a broad order against Respondents.
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 294, International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, is a labor organization within the meaning of Section 2 (5)
of the Act. Howard Bennett is business agent of said Local 294, and an agent
thereof within the meaning of the Act.
2. By inducing and encouraging employees of Industrial Molasses Corporation
to engage in a strike or concerted refusal in the course of their employment to
transport , or otherwise handle or work on, any goods , articles, materials , or com-
modities , or to perform any services for their employer, with an object of forcing or
requiring Industrial Molasses Corporation to cease doing business with Bonded
Freightways, Inc , Respondents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Stokely-Bordo and International Chemical Workers Union, AFL-
CIO, Petitioner . Case No. 12-RC-260. September 19, 1958
SUPPLEMENTAL DECISION AND DIRECTION OF
RUNOFF ELECTION
Pursuant to a Decision and Direction of Election issued by the
Board herein on May 20, 1958,' an election by secret ballot was con-
ducted on June 17, 1958, under the direction and supervision of the
Regional Director for the Twelfth Region among the employees in
the appropriate unit. Following the election, the Regional Director
i Unpublished.
121 NLRB No. 118.