Lumber & Sawmill Workers Local Union 2409

National Labor Relations Board - Board Decisions

Feb 13, 1959

122 N.L.R.B. 1403 (N.L.R.B. 1959)

LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1403
Inc., excluding office clerical employees, guards, and supervisors as defined in
the Act.
3. By failing and refusing at all times since July 25, 1957, to bargain collectively
as the exclusive representatives of the employees in the foregoing appropriate unit
with the chosen representative of the Association, the Northeast Department of
the ILGWU, its Locals 111, 351, 234, 243, and 109 and their agents David
Gingold, Sol Greene, Oscar Newman, Grace Birkel, and Harry Schindler have
engaged in and are engaging in unfair labor practices within the meaning of Sec-
tion 8(b)(3) of the Act.
4. By compelling the aforementioned labor organizations and their agents to
engage in the aforementioned unlawful conduct the International Ladies' Garment
Workers' Union, AFL-CIO, has also engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The allegations of the complaint in Case No. 4-CB-403 have not been
sustained.
[Recommendations omitted from publication.]
Lumber & Sawmill Workers Local Union 2409; Angus L. Brisbin,
Its President ; Montana District Council , Lumber & Sawmill
Workers Unions; Robert C. Weller, Business Representative
and Executive Secretary and Great Northern Railway Com-
pany. Case No. 19-CC-109. February 13, 1959
DECISION AND ORDER
On November 18, 1958, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
Charging Party filed exceptions to the Intermediate Report and
the latter filed a supporting brief. The Respondents filed a brief
in support of the Intermediate Report.
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-
member panel [Chairman Leedom and Members Bean 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 briefs, and the entire record in
this case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
[The Board dismissed the complaint.]
1 The Charging Party's request for oral argument is hereby denied as the record,
exceptions, and briefs, adequately reflect, in our opinion, the issues and positions of
the parties.
2 We find, in agreement with the Trial Examiner, that railroad employees are not
employees within the meaning of Section 8(b) (4) (A ) of the Act. See Superior Derrick
122 NLRB No. 164.
1404 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought under Section 10(b) of the National Labor Relations
Act, 61 Stat. 136, pursuant to a complaint issued by the General Counsel of the
National Labor Relations Board against the Respondents.'
The complaint, based on a charge filed by Great Northern, is dated July 16,
1958, and alleges that the Respondents have engaged in unfair labor practices
proscribed by Section 8(b)(4)(A) of the Act.
The complaint specified that on or about January 30, 1953, the Union and the
Council became engaged in a primary labor dispute with Foley's Mill and Cabinet
Works (herein called Foley), and that on said date, acting in concert and pursuant
to a common plan, the Respondents caused pickets to patrol at a point where a
,spur track of Great Northern crosses Roberts Street in the city of Helena, Montana,
at such times as Great Northern sought to move freight cars with freight destined
to Foley over the spur track, and thereby induced the employees of Great Northern
to engage in a strike or a concerted refusal in the course of their employment to
transport freight, or to operate trains over the spur track, either to or from Foley,
with an object of forcing or requiring Great Northern and other employers or
persons to cease transporting, handling, or otherwise dealing in the products of
Foley, or to cease doing business with Foley.
The Respondents filed an answer to the complaint which denied the commission
of the unfair labor practices alleged, but which admitted certain facts relative to
the business operations of Great Northern, of Foley, and the representative author-
ity of the Union and the Council. The answer denied specifically that the Railway
Company is an employer within the meaning of Section 8(b)(4) of the Act, or
is engaged in commerce within the meaning of Section 2(6) and (7) of he Act.
Pursuant to notice a hearing was held at Helena, Montana, on August 19 and 20,
1958, before the duly designated Trial Examiner. The parties were represented by
counsel or union officers who were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce relevant evidence. At the
close of the hearing the parties were given an opportunity to argue orally and to
file briefs. All parties filed briefs, which have been considered.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OPERATIONS OF FOLEY AND GREAT NORTHERN
Foley is a Montana corporation, having its principal office and mill at Helena,
Montana, where it is engaged in the sale and processing of lumber and lumber
products. During the year 1957, Foley sold and shipped products to customers
located outside the State of Montana valued in excess of $50,000.
It is undisputed, and I find, that Foley is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the pleadings, I find that Great Northern Railway Company is a Minne-
sota corporation having its principal office at St. Paul, Minnesota. It is engaged
in the business of hauling freight and passengers by rail both interstate and intra-
state. During the year 1957 its revenue from interstate operations was in excess
of $100,000.
Corporation, 122 NLRB 52. However, we do not adopt the Trial Examiner's discussion,
and conclusions as to the import, of various Board and court decisions regarding the
Instant issue, nor do we adopt his statement of his personal views as to the proper rule
to be derived from these decisions.
IIn this report Lumber & Sawmill Workers Local Union 2409 Is referred to as the
Union, and Montana District Council, Lumber & Sawmill Workers Unions, as the Council ;
and the Respondent officers by their last names and the Respondents collectively as the
Respondents ; the Great Northern Railway Company, as Great Northern or the Railway
Company, the General Counsel of the Board and his representative at the hearing, as the
'General Counsel ; the National Labor Relations Board, as the Board ; and the Labor
Management Relations Act of 1947 , as amended , as the Act.
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1405
II. THE ORGANIZATIONS INVOLVED
Upon the pleadings, I find that at all times pertinent hereto the Union has been
and is a labor organization within the meaning of Section 2(5) of the Act, and
that the Council was formed on or about March 1, 1958, and since that date has
been a labor organization within the meaning of Section 2(5) of the Act. Re-
spondent Weller is and at all times pertinent hereto has been the business repre-
sentative of the Union and executive secretary of the Council, and their agent
within the meaning of Section 2(13) and 8(b) of the Act. Respondent Brisbin
is and at all times pertinent hereto has been the president of the Union and its
agent within the meaning of Sections 2(13) and 8(b) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
It is undisputed that the Union in the course of a strike against Foley picketed
across a spur track of the Great Northern, where the spur track is intersected by
Roberts Street in the City of Helena, Montana. The principal issues here are two:
(1) Did this picketing constitute conduct proscribed by Section 8 (b) (4) (A) of
the Act; (2) is the Great Northern entitled to Board protection from the kind of
unfair labor practices proscribed by that section of the Act?
B. Undisputed facts; the geography of Foley's Mill
Foley is engaged in the business of milling lumber in transit at Helena, Montana.
In its operations it receives lumber, which it manufactures into doors and window
sash and related products. The evidence establishes that Foley receives all its raw
material, and ships all its finished products by rail, over the main line, and the
spur track of the Great Northern both of which are located at the rear of
Foley's Mill.
For a proper understanding of the issues in the case, the geography surrounding
Foley's Mill is important. The mill fronts on Boulder Avenue in Helena, Boulder
forming its southern boundary, and does not abut directly on any other street.
The only entrances to the Foley Mill customarily used by employees, customers,
salesmen, and trucks making minor deliveries and pickups are located on Boulder
Avenue. A second truck entrance, which is rarely used, is located on Lynndale
Avenue immediately north of the mill and yard.
The evidence establishes, and I find, that the only entrances to Foley's Mill used
by employees, customers, or supervisors are those situated on Boulder Avenue.
As stated previously, Foley receives all lumber for its manufacturing operations
over the spur of the Railway Company and ships out practically all of its finished
products by the same means. The cars containing the raw material and finished
products are switched in and out of Foley's Mill on the Great Northern tracks and
by Great Northern personnel. The main line of the Great Northern bisects Foley's
property, running parallel to Boulder Avenue in an east and west direction, directly
in the rear of the mill. One hundred feet east of Foley's property Roberts Street,
running north and south, bisects at right angles both Boulder Avenue and the
Great Northern tracks. A spur track branches from the main line at a switch
located east of Roberts Street, and runs in a westerly direction parallel with the
main line through Foley's property and continues to the Caird Engineering plant,
where the spur ends. Foley's Mill has a loading dock adjacent to the spur track.
At the hearing the parties submitted maps, photographs, and plats showing the
location of Foley's Mill, Roberts Street, and the tracks of the Great Northern.
These documents establish that at its closest point Roberts Street is 100 feet east
of Foley's property. Roberts Street is approximately 48 feet in width and the
switch for the spur track is located approximately 75 feet east of the easterly side
of Roberts Street, which places the switch approximately 223 feet from the edge
of Foley's property.2
C. The primary dispute
It is undisputed that on January 30, 1953, the Union represented the production
and maintenance employees of Foley, and on that date became engaged in a pri-
mary labor dispute with Foley and began a strike against Foley which continues
to the present time. The strike was accompanied by picketing, which for a few
2 General Counsel 's Exhibit No. 2 and Respondents ' Exhibit No. 1.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days did not involve the Great Northern , the pickets confining their activity to the
entrances of Foley on Boulder Avenue . At all times since that date , the front
entrances have been the principal station of the pickets.
D. The picketing of the railroad
It is undisputed that these pickets wore signs which read on one side, "Foley's
Mill Unfair to Organized Labor," and on the other side, "On Strike L and S with
Local 2409." It is not disputed that on February 8, 1953, the picketing first
involved the railroad. On that date when the switching crew, with switch engine
and freight cars entered upon the spur track, they encountered approximately nine
pickets grouped across the spur track on the westerly crosswalk of Roberts Street.
The pickets moved continuously across the track with an interval of approximately
5 feet between pickets. Confronted with the danger of injuring the pickets, the
train crew did not complete the switching operation. On the next day a crew of
supervisory personnel of Great Northern attempted to make delivery to Foley but
they were prevented from switching by the human barrier of the pickets who acted
in the same manner as on the previous day.
Finally, on February 23, 1953, another supervisory crew made a second attempt
and was able to complete the switching operation, after officers of the Helena
police department forcibly removed the pickets who had been obstructing the track.
Thereafter, for the next 5 years, until July 28, 1958, the picketing at the Great
Northern tracks fell into a well-defined pattern.
The primary labor dispute of the Union and Council with Foley continued, and
the picketing continued, with the pickets, generally two in number, making their
headquarters in their car which they parked on Boulder Avenue near the entrances
to Foley. They rested in the car or sought shelter from the weather except at
times when someone approached the entrances to Foley. Then they would leave
the car and patrol in front of the Boulder Avenue entrances.
The switch engine, and its crew, in approaching Foley, crossed over several
streets in the city of Helena. The switch engine whistled for each of these cross-
ings. Upon hearing the whistle one or both of the pickets would hurry from their
car on Boulder Avenue to the crossing at Roberts Street, where the picket or
pickets would parade across the spur track. Upon seeing the picket the switch
engine crew , composed of engineer , fireman, and three switchmen , would thereupon
stop the engine and notify the supervisory force of Great Northern employees,
who were standing by, that they refused to cross the picket line. At that point
the supervisory crew, which had come from Great Falls especially for the purpose
of making the switch , would take over the engine and complete the switching in
and out of Foley. A police officer of the Helena police department, which had
been notified previously by the Railway Company that switching into Foley was
scheduled, stood by until the operation of switching was completed. When the
switching crew of supervisory officials completed the operation, recrossing to a
point outside the picket line, the supervisory officials would then surrender the
locomotive to the regular crew of engineer, fireman, and switch crew.
It is likewise undisputed that on occasions when the regular switch crew desired
to take cars into Caird Engineering Company, a plant beyond Foley, they apprised
the picket of this fact and he thereupon waved them by. On those occasions they
removed any car which might be at Foley, and returned it to the identical spot,
before leaving the spur.
It is likewise undisputed that picketing at the railroad spur at Roberts Street took
place only for those minutes when a switching operation into Foley was attempted
by the Railway Company. As soon as the switching operation was performed, and
the switch crew took over the engine and departed , the picket returned to his
headquarters in the car on Boulder Avenue.
E. Picketing after July 28, 1958
On the above date the parties were in court. Evidently, as a result of what was
said on that occasion, the conduct of the pickets and the conduct of the railroad in
certain particulars were changed. From the testimony it is clear that thereafter,
at some isolated times which I find to be a very small fraction of the total time,
the picket patrolled on Roberts Street when the switch engine was not present.
However, when switching operations were attempted, the picket behaved in the
same manner as set forth above.
For its part , the railroad took a sterner attitude with its engineer , fireman, and
switchmen . On August 4, 1958, written instructions were issued to the regular
switch crew by the superintendent instructing them to switch into Foley, and on
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1407
that date the regular crew performed the task . However, a week later , on August
11, the regular crew again refused to cross the picket line.
At that juncture , William H . Little, the terminal trainmaster for the Great
Northern at Great Falls, Montana , made arrangements to go to Helena with a
crew of supervisors on August 12. According to Little, whose testimony I credit,
on the following day he again gave written instructions to the crew to switch into
Foley. The crew said that they would go to Roberts Street and see what the situa-
tion was. The crew was composed of Engineer Griffith , Fireman Lee, Switch
Foreman Thompson , and Switchmen Sundown and Reid. The switch crew took
the engine down to Roberts Street and the supervisory crew went to that point in
an automobile . The switch crew came up to the spur and a picket began to patrol
across the tracks. The picket and the switch engine had arrived at the crossing at
about the same time . Switchman Sundown threw the derail , and the crew brought
the engine down to the place where the picket was patrolling . At that point they
stopped. Little asked the crew what they intended to do, and they replied that
they couldn 't switch into Foley because of the picket. Upon being questioned, the
engineer told Little he was working on signal from the switchmen and he would
do whatever they signalled him. The fireman said he would ride along with the
engineer . The three switchmen , however, said that they weren't going to pass the
picket line . Little asked what the crew would do if he were to get police protec-
tion that would guarantee that the move into Foley could be made with safety.
The three switchmen answered that this was a picket line and they weren 't going
to cross it . The police officer present asked the crew if they were going to switch
into Foley and they answered no. The supervisors then took over the engine and
proceeded to complete the switching operations into the mill . During all of this
time the picket continued to cross the tracks, walking back and forth.
On August 12, 15, and 18, Little issued the same instructions to the crew, to
switch into Foley , and on each of these occasions they refused to cross the picket
line. On each of the last two occasions the crew members said that, "even if they
were protected and could go by with the police that this did not protect them in
the future or their homes or whatever it might be, and that in effect there was a
picket line there and they weren 't going to cross it."
John E. Thompson , the switchman foreman, testified that he had not switched
any trains into Foley, but that he had switched some trains into Cairds which
involved moving cars on the spur track in front of Foley . According to Thompson,
when the engine and crew came to Foley they would usually tell the picket that
they had a car for Cairds , whereupon the picket would move off the tracks so that
they could take the train up to Cairds . If they had to move a car at Foley they
moved it back when they had completed the switch into Cairds . Thompson said
that he did not switch any trains into Foley because "we do not cross recognized
picket lines for our safety and the safety of our families ." He said that he received
instructions from the superintendent on August 4, 1958, and on that ' date he
switched into Foley . After that he consulted with Mr. Sutton , a representative of
his own union , the Switchmen 's Union of North America . Sutton was the official
"griever" for the switchmen . Thompson called Sutton on the phone , and explained
the situation to him . Sutton advised the switchmen not to cross the picket line.
He said, "Regardless of whether the police are there or not , that policeman isn't
going to protect you tomorrow or the next day or he isn 't going to be at your
homes at any time to protect your family." Sutton also said, "It is possible that
you could be thrown out of the union ," if the crew passed the picket line.
Jack E. Lee, the locomotive fireman , testified that he consulted with the repre-
sentative of his union, the Brotherhood of Locomotive , Firemen and Eneinemen,
because he wasn't sure whether one picket constituted a picket line. His union
representative told him that if a picket was visible around the tracks it was a picket
line and that he was not to move the engine across it. When Little asked him why
he would not switch into Foley , he told Little that he would not cross the picket
line because if one of the members of his union should see him they could have
him prosecuted and discharged from his Brotherhood.
1. The damage to the Great Northern
H. J. Surrles testified that he is employed by the Great Northern Railroad and
was formerly the superintendent of the Butte Division at Great Falls . He said that
from the beginning of the strike at Foley to the time of the hearing , supervisors
of the Great Northern had completed 221 switching operations into Foley. In the
5-year period these operations occurred approximately once a week. Prior to the
strike the switch engine gave daily service to Foley. In the course of 5 years, it
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had cost the railroad in excess of $35,000 to conduct switching operations, using
supervisory personnel . This cost included the pay of from two to five supervisors
at approximately $ 152 a trip . In making the switching operations the supervisory
crews had expended 901 man-days , and during that time the supervisors were
separated from their other duties in connection with 1,300 miles of main line track.
I have credited all of the testimony related above.
2. The Respondents ' version of the picketing
Ray F. Lindberg , the financial secretary and treasurer of the Union, was called
by the defense to furnish the Union 's version of the picketing . Lindberg explained
that all of the pickets were members of the Union, and that the largest number of
pickets at any one time during the year prior to the hearing had been three. Most
of the time the picketing was conducted by two pickets , Lindberg , himself, and
Brisbin, both of whom are officers of the Union . Lindberg said that the picketing
usually took place on .Boulder Avenue and on some occasions continued around
the corner up Roberts Street. The pickets had never appeared at the Great
Northern depot or any other of the railroad 's offices in the Helena area; nor had
they ever carried signs saying that the Great Northern was unfair , or involved in
the strike . Prior to the strike, some freight and express trucks picked up and
delivered at the Boulder Street entrance of Foley , but since the picketing few
deliveries had been made at those entrances because the drivers of freight and
express trucks respected the picket lines.
Lindberg gave two reasons for picketing in the vicinity of the Great Northern's
spur tracks . He said that , ( 1) there is an alleyway parallel to the tracks and that
at times some people used this alleyway , and that one of the purposes of the
pickets was to keep the sign visible to the people who might use this alleyway;
and (2 ) the pickets went down Roberts Street to observe what was going on at the
loading platform since the Union was interested in seeing what kind of material
Foley was shipping , whether it was a good class of material or not.
Lindberg said that prior to July 28, 1958 , he usually left his car on Boulder
Avenue but after that date he took it down on Roberts Street on occasions when
he anticipated that there would be switching. He took his car to that point because
it had been tampered with when left unguarded on Boulder Avenue. Lindberg
said that he was on the picket line in the early days of the picketing, when the
pickets physically obstructed the switching operations . He said that on this occa-
sion the pickets were about 5 feet apart and the train could not have gone in
between them without hurting somebody . He said that the purpose of the picket-
ing was to show the banner and to put the engine crew to a choice as to whether
they would respect the picket line or not.
In the light of all the evidence , I cannot and do not credit Lindberg 's two pur-
ported reasons for the picketing on Roberts Street. All the undisputed testimony,
and the latter portion of Lindberg 's testimony, establishes that from its inception
until the present , the picketing of the Respondents has been aimed at involving
Great Northern in the Respondents' dispute with Foley, by inducing the employees
of Great Northern to concertedly refuse to switch cars in and out of Foley with
the object of forcing and requiring Great Northern to cease rendering service to,
or doing business with, Foley.
3. The letters concerning boycott
On January 23, 1958, the Council took additional steps to exert pressure upon
the railroad. On that date Robert C. Weller, executive secretary of the Council,
wrote the following letter to John M. Budd, president , Great Northern Railway
Company: 3
DEAR MR . BUDD: Enclosed find a resolution unanimously adopted by a con-
vention of this organization at Livingston , Montana, January 19, 1958.
In accordance with the final "Resolve ," the resolution is referred to you
prior to taking the action specified in the first "resolve."
The committee that prepared this resolution and presented it to the con-
vention took into consideration allegations that Foleys Mill & Cabinet Works
is indebted to the Great Northern Railway a very considerable sum for de-
murrage and has refused to pay such charges. This allegation , together with
others set forth in the resolution , indicate to us that the Great Northern is
not required to provide service to Foleys Mill & Cabinet Works but does so
3 General Counsel 's Exhibit No. 11.
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1409
purely of its own volition and for the express purpose of breaking legitimate
strikes against customers of the Great Northern.
We would appreciate any comments or suggestions the Great Northern
Railway cares to offer.
Very truly yours,
The copy of the resolution mentioned in the letter is as follows: 4
Resolution No. 2 Subject : Great Northern Railway
WHEREAS, the Great Northern Railway was refused an injunction against
picketing by Local 2409 which has been on strike against Foleys Mill &
Cabinet Works for five years, and
WHEREAS, this case was taken by the Great Northern Railway to the Supreme
Court of the United States and they have had every possible recourse at
law, and
WHEREAS, officials of the Great Northern Railway have traveled from Great
Falls to Helena throughout the five year strike to remove cars from behind
the picket line of Local 2409 at great expense to the Great Northern Railway
and also at great expense to the City of Helena which is required to provide
police protection to the Great Northern officials, and
WHEREAS, it appears well established that Foleys Mill & Cabinet Works are
not charged demurrage on freight cars which other customers are required
to pay, and
WHEREAS, in view of all these circumstances the Great Northern Railway
is not obligated to provide service to Foleys Mill & Cabinet Works, but does
so purely as a strike breaking activity against the best interests of all of the
members of all Local Unions of this District Council , therefore be it,
RESOLVED that this District Council advise and inform by every means
possible all of its members and the members and friends of other labor or-
ganizations to discontinue traveling or shipping by Great Northern Railway
so long as these strike breaking activities continue and be it further
RESOLVED , that before the above action is taken a copy of this resolution
be sent to the highest known officials of the Great Northern Railway advising
them of the action that will be taken unless the strike breaking activities are
discontinued.
Adopted by 36th Semi-annual convention , Montana District Council, Lumber
& Sawmill Workers' Unions , United Brotherhood of Carpenters and Joiners of
America, at Livingston , Montana, January 19, 1958.
On February 6, 1958, Budd replied to Weller as follows: 5
DEAR MR. WELLER : I have your letter of January 23, enclosing copy of a
resolution adopted by your organization on January 19. The resolution deals
with the five -year old strike of Local 2409 , Lumber and Sawmill Workers'
Unions against Foley's Mill & Cabinet Works.
The resolution errs in stating that Foley 's Mill & Cabinet Works is not
charged demurrage on freight cars. Foley 's is charged and pays the full rate
required by the demurrage tariff.
The resolution errs in stating the "Great Northern Railway is not obligated
to provide service to Foley's Mill & Cabinet Works, but does so purely as a
strike-breaking activity ." The Great Northern Railway Company is a common
carrier, and under its franchise it is obligated to employ all reasonable means
in furnishing service to the public , including Foley's. We are not engaged or
interested in strike -breaking activities . Our efforts are directed to furnishing
our patrons with the best service possible . In accordance with our common
carrier duty , we will continue to serve Foley 's Mill & Cabinet Works.
Your resolution refers to the "great expense" Great Northern has incurred
in performing our common carrier duty under the handicaps furnished by
the picket line of Local 2409. This expense has been a matter of concern to
me for some time, and I am asking our attorneys to consider appropriate
remedies , including an action at law to recover a sum of money sufficient to
compensate us for the expense we have been compelled to incur because of
the picket line.
Yours very truly,
[Emphasis supplied]
4 General Counsel 's Exhibit No. 12.
5 General Counsel ' s Exhibit No. 13.
505395-59-vol, 122-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
On February 10, 1958, Weller, as executive secretary of the Council replied as
follows: 6
DEAR MR. BUDD: This acknowledges your letter of February 6 relative to
Foley's Mill & Cabinet Works, Helena, Montana.
Perhaps the information we have concerning demurrage is incorrect. If so,
then we have differing versions from officials of the Great Northern Railway.
A statement in your letter is to the effect the Great Northern is not inter-
ested in strike breaking activities. The rest of the letter disproves this par-
ticular statement.
Your last paragraph seems to threaten a suit for damages against Local
2409. Perhaps you are unaware of the previous unsuccessful suit by the
Great Northern Railway against Local 2409. I think the figure at that time
was $55,000.00 damages. No doubt it would be greater by now. Be that as
it may, the federal courts have held the picketing to be a proper and pro-
tected activity and we are accordingly unconcerned with further suits or
threats of suits.
The delegation representing our organization at Spokane, Washington the
early part of March will cancel its plans to travel Great Northern. My own
traditional habit of traveling Great Northern terminated with receipt of your
letter. You are welcome to add these items to any damages you may seek
to collect from Local 2409.
Very truly yours,
Concluding Findings
Upon the foregoing evidence the Respondents contend that their picketing activi-
ties were primary in nature and therefore lawful under the Act. It is established
by innumerable authorities that Section 8(b)(4) (A), the so-called secondary boy-
cott provisions, does not proscribe "primary" picketing at the place of business of
the primary employer even where the picketing incidentally involves employees of
a secondary neutral employer. On the other hand, picketing at the premises of
the secondary employer is, of course, an illegal secondary boycott. The terms
"primary" and "secondary" are not defined in the law and the interpretation which
has been given to them has suffered some change in the evolution of the law. The
question of whether picketing is primary or secondary takes on unusual difficulties
in the so-called "common situs" situations where primary and secondary employers
are sharing a common location for carrying on their respective business operations.
In such a situation, the Board is confronted with the problem of "balancing the
right of a union to picket at the site of its dispute as against the right of a second-
ary employer to be free from picketing in a controversy in which it is not directly
involved." 7
In its early cases, under the amended Act, the Board viewed all picketing at or
in the vicinity of the primary employer's place of business as lawful,8 but with
added experience the Board now approaches the question more realistically, and
seeks to determine the purpose behind the picketing, in assessing its legality. Where
that purpose is found to be the involvement of neutral employers in the dispute,
the Board has held it proscribed by the provisions of Section 8(b) (4) (A), the
test now being whether the appeal of the picket sign is to the employees of the
primary employer, or to those of the neutral secondary employer. In a recent
case,9 the Board expressed the rule as follows:
When the picketing union by its picketing signs or by its conduct on the
picket line or elsewhere indicates that the dispute extends beyond the primary
employer, and thereby directly seeks to enlist the active participation of em-
ployees of neutral employers, the picketing union violates the secondary boy-
cott provisions of the Act.
Similarly, in the Washington Coca-Cola line of cases the Board has held that
otherwise legitimate picketing of trucks of the primary employer violates Section
8 (b) (4) (A) on the basis that the intention of the picketing union to involve sec-
ondary employers appears from the fact that the picketing union has ample oppor-
tunity to publicize its dispute by picketing at the primary employer's place of
6 General Counsel's Exhibit No. 14.
4 Moore Drydock, 92 NLRB 547, 549.
8 Ryan Construction Corporation, 85 NLRB 417; Pure Oil Company, 84 NLRB 315.
9 Crump, Incorporated, 112 NLRB 311, 312.
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1411
business without following his trucks to the premises of his customers and sup-
pliers.10 The development of this principle culminated in Retail Fruit & Vegetable
Clerks Union (Crystal Palace Market), 116 NLRB 856, enfd. 249 F. 2d 591
(C.A. 9). In that case the respondent union had a dispute with the primary em-
ployer which operated several fruit and grocery stores in its own market building
where several neutral employers also operated fruit stores and groceries . In fur-
therance of its dispute with the primary employer , the Union picketed the various
entrances to the building . On a complaint charging the Union with a secondary
boycott and violation of Section 8(b) (4) (A) the Union defended its action as
lawful primary picketing ; but this contention was rejected by the Board on the
ground that the circumstances of the case showed that the Union was picketing
for the purpose of involving the neutral employers doing business in the market
building. The Board in its decision wrote as follows:
In seeking to accommodate these sometimes conflicting congressional objec-
tives, the Board, with judicial approval , has established certain standards for
"common situs " picketing . The gist of these standards is that where picketing
occurs at premises which are occupied jointly by primary and secondary em-
ployers, the timing and location of the picketing and the legends on the picket
signs must be tailored to reach the employees of the primary employer , rather
than those of neutral employers . If these standards are observed , the picketing
is lawful, and any incidental impact thereof on neutral employees at the com-
mon situs will not render it unlawful . Where, however, there is any deviation
from these standards , the Board , with judicial approval , has held that the
picketing violates Section 8(b) (4) (A) of the Act. In developing and apply-
ing these standards , the controlling consideration has been to require that the
picketing be so conducted as to minimize its impact on neutral employees
insofar as this can be done without substantial impairment of the effectiveness
of the picketing in reaching the primary employees.
The Ninth Circuit Court of Appeals enforced this decision following the same
reasoning as the Board.
The principles outlined in the Crystal Palace Market decision have been fol-
lowed consistently in subsequent cases. Thus, picketing at a primary employer's
place of business violates Section 8 (b) (4) (A ) where the primary employees are
not there and the Board finds that the picketing is directed to secondary em-
ployees.ll Even where primary employees are present and the picketing is other-
wise proper , it has been held to violate the secondary boycott provisions of the Act
where all statements by the business agent of the picketing union showed that its
purpose was to enlist the active participation of employees of neutral employers.12
Under the principles of these cases it is clear that the form of the picketing and its
geographical location are of less significance than the basic purpose of the picketing.
Where the purpose is the involvement of neutral employers through appeals to
their employees , rather than the publicizing of the dispute to the general public
and primary employees , the picketing is a secondary boycott in violation of the Act.
The instant case presents a somewhat novel situation . The cases cited above all
involve picketing either at the secondary employer's premises, or on premises served
by the primary employer and neutral secondary employer. Here the picketing is
admittedly in the general vicinity of the Foley plant, and away from the railway
depot or freight yard. At first glance the situation would appear to be one of
permissible primary picketing , with the picketing at the spur track being a part of
the picketing on Boulder Avenue, and for the same purpose, to publicize the dis-
pute to the general public and particularly to the employees of Foley.
However, the picketing at the spur track is not on or adjacent to Foley's prop-
erty. Roberts Street is at least 100 feet from the nearest Foley property line, and
the pickets in patrolling across the tracks are on the Great Northern 's right of
way, on property actually owned by the railroad company. Furthermore, the
Great Northern is a common carrier and by law has no alternative but to switch
"Washington Coca - Cola Bottling Works , Inc., 107 NLRB 299, enfd . 220 F. 2d 380
(C.A., D.C .) ; Campbell Coal Company, 110 NLRB 2192 , 116 NLRB 1020, enfd . 249 F. 2d
512 (C.A., D.C.).
"Rollins Broadcasting, Inc., 117 NLRB 1491 ; Salt Dome Production Company, 119
NLRB 1638; Incorporated Oil Company , 116 NLRB 1844, Order set aside, 249 F. 2d
332 (C.A. 8).
la The Kroger Company, 119 NLRB 469.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cars into Foley over this spur line.13 In a very real sense, therefore, the picketing
is on the property of a neutral employer, the railroad, at a place where this neutral
employer is doing business. At that point we must apply the test of the principles
outlined above to decide whether the picketing in question is directed at Foley's
employees or is intended to involve the Great Northern by an appeal to Great
Northern's employees. In the light of all the evidence, which is largely undis-
puted, there can be no doubt that the involvement of Great Northern in the dispute
was and still is the only purpose of the picketing. The timing of the picketing at
the spur track is a fact which sheds much light on its purpose. The evidence
establishes overwhelmingly that prior to the injunction hearing on July 28, 1958,
picketing was conducted at the spur track or on Roberts Street only when switching,
operations were imminent. At that time, warned by the whistle of the train at the
various crossings through the city of Helena, the pickets came to the crossing and
patrolled across the tracks with the obvious purpose of preventing the train crew
from completing the switching operation. When switching operations were com-
pleted by the supervisory crew the picketing of the spur track was then discon-
tinued until a week later when the switching crew again approached the spur.
On cross-examination Lindberg conceded that the purpose of the picketing in
the early days of the strike was to put the train crew to a choice as to whether
they would respect the picket line or not. Furthermore, in all the many conversa-
tions between railroad officials and the crew of the switch engine which occurred
at the spur track in the view, and in the presence, of the picket, neither Lindberg
nor any other picket ever spoke up to tell anyone that the picketing was not directed
against Great Northern and its employees. From these facts it is clear that the
picketing was a deliberate and direct appeal to the train crew to engage in a con-
certed refusal to switch the cars, an appeal which for 5 years has been answered
by a concerted refusal to switch into Foley by the train crew. Finally, any doubt
that Respondents' actions were directed specifically against the Great Northern
would be dispelled by the Council's resolution and Weller's correspondence with
the president of the railroad. Respondents demanded that the Great Northern
cease its "strike breaking activity" of handling and transshipping Foley freight and
threatened the railroad company with a boycott if it persisted in furnishing the
service which, as a common carrier it was required to furnish under pain of both
criminal and civil penalties.
The Respondents in the course of their dispute with Foley were entitled to picket
Foley to publicize their dispute to his employees and to the public at large, all
of which could be achieved by picketing at the entrance to Foley's Mill on Boulder
Avenue. But the Respondents could not, under the Act, picket on the railroad
company's property 100 feet from the Foley property line, for the purpose of
forcing the railroad company to stop rendering service to Foley.
While there was some change in the station of the pickets' car and in the
appearance of pickets on Roberts Street at times when the switch engine was not
present after the injunction hearing on July 28, 1958, those changes are of no
consequence. In the light of all the evidence, these slight changes were a belated
effort to disguise the purpose of the picketing at the spur track which at all times
remained the same, to force Great Northern to cease rendering service to Foley.
Viewing the evidence as a whole, it would seem difficult to find a set of cir-
cumstances where the illegal purpose of the picketing is more patent than the
instant case. The picketing at the spur track was intended and designed to disrupt
the service of Great Northern to Foley, and for 5 years it has been successful.
It is undisputed that this picketing caused large financial loss to Great Northern
and a major disruption of its railroad operations, despite the fact it was a neutral
to the primary dispute.
The concern of Congress with secondary boycotts is dramatically illustrated by
the circumstances of this case. If the Great Northern had discharged its switching
crew because it had refused to cross the picket line, and if the railroad brother-
hoods had supported the action of their members by strike action, the Railway
Company would have found itself in the position of having 2,000 miles of main
line tracks tied up as a result of the dispute at Foley; a dispute in which the rail-
road had no interest or stake, and which it could not in any way prevent.
Upon the evidence, I find that the picketing constitutes conduct proscribed by
Section 8(b) (4) (A) of the Act.
13 For duty of common carrier to furnish service see : 49 USCA Sec. 1(4) ; 49 USCA
Sec. 8; 49 USCA (10) L; Decisions of Commission (I.C.C.) Pick-up and Delivery Restric-
tions-California-Rail, I.C.C. Docket 31944, dated April 22, 1958; Montgomery-Ward v.
Northern Pacific Terminal Co., 128 F. Supp. 475.
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1413
At the hearing the Union moved to dismiss the complaint on the ground that
Great Northern, being a railroad company, is not "an employer" as defined in the
Act and that therefore inducement of its train crews was not inducement or en-
-couragement of "employees" of an "employer" within the meaning of Section
.8(b)(4)(A). The motion was denied, with permission granted to the Respondents
to raise the point again at the close of all the evidence, which they have done in
their brief. This contention also constitutes one of the Respondents' defenses
alleged in their answer.14
The question raised by this defense has a long and unique history in the Board
.and the courts and apparently is far from its final resolution. The Board's decision
in International Rice Milling Co., Inc., 84 NLRB 360, furnishes a convenient start-
ing place for a review of the authorities. In that case a union had picketed sidings
,of the Missouri Pacific and Southern Pacific railroads in the course of a strike by
the employees of the milling company. The Trial Examiner found that the union
.had violated Section 8(b)(4)(A) and (B) by its conduct, but the Board reversed
this finding on the ground that Section 2(2) and (3) of the Act excluded from
its coverage "any person subject to the Railway Labor Act" and that the term
"employee" did not include any individual "employed by an employer subject to the
Railway Labor Act."
The case then proceeded to the Court of Appeals (C.A. 5). The decision of the
court of appeals, issued June 21, 1950, in International Rice Milling Co., Inc., et al.
v. N.L.R.B., reversed the Board's holding that the words "any employer" as used
in Section 8(b)(4) of the Act did not include railroad companies as employers.
The court analyzed the language of the section and stated that it was of the opinion
that railroads were intended to be covered by Section 8(b)(4) of the Act. The
court pointed out that the purpose of the section was "to protect commerce from
injury, impairment, and interruption, by removing obstructions like the one we
have here. If the Board's view were to prevail, the industry most directly and
extensively concerned with commerce, the vast railroad transportation system,
would be at the mercy of ambitious unions, which could use them as a means of
forcing themselves upon plants like petitioners where they do not have a ma-
jority status."
The Board did not seek certiorari on this point, although it did seek certiorari,
and obtain it, on a second point of law in the case. However, the Board made
known its dissatisfaction with the decision of the court of appeals.
On January 9, 1956, the Supreme Court had occasion to deal with the same ques-
tion which came before it, not from the Board but from the State courts. In Local
Union No. 25, International Brotherhood of Teamsters, etc. v. New York, New
Haven & Hartford Railroad Co., 350 U.S. 155, commonly called the "piggy-back
-case," the Court had to pass upon the jurisdiction of the Massachusetts courts to
enjoin the Teamsters from engaging in conduct alleged to be in violation of the
secondary boycott provisions of Section 8(b) (4) (A) of the Act. The facts are
these: For some years the railroad had been transporting loaded truck trailers
over its long-haul lines in what are termed "piggy-back" operations. The trailers
were delivered to the railroad yards by motor freight carriers. To stop these
operations, union agents patrolled the entrance to the freight yards and persuaded
-some drivers to refrain from delivering the trailers to the railroad. They also
dissuaded some employees of a subsidiary of the railroad from loading the trailers
onto the freight cars. The Massachusetts court had enjoined this conduct.
In its decision the Supreme Court wrote of railroads as "employers" as follows:
The Massachusetts court, although recognizing the principle that state courts
ordinarily lack authority to enjoin alleged unfair labor practices affecting inter-
state commerce, determined that it had jurisdiction in this controversy to re-
strain petitioners' conduct because the Labor Management Relations Act's
definition of "employer," as interpreted by the N.L.R.B., cast doubt upon
respondent's ability to obtain relief under that Act.
The Act, in its definition of an "employer," expressly excludes anyone sub-
ject to the Railway Labor Act, 29 U.S.C. §152(2). It is of course true that
employer-employee relationships of railroads such as respondent are governed
by the Railway Labor Act, which was passed before either the National Labor
Relations Act or the Labor Management Relations Act. Neither of the latter
Acts was intended to tread upon the ground covered by the Railway Labor Act.
It is clear that neither railroads nor their employees may carry their griev-
ances with one another to the N.L.R.B. for resolution. But it does not follow
14 At the time of the ruling the Trial Examiner was under the impression that
W. T. Smith Lumber Company, 246 F . 2d 129 , was controlling.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from this that a railroad is precluded from seeking the aid of the Board in
circumstances unrelated to its employer-employee relations. Respondent itself
has maintained throughout the entire course of this litigation that there is no
labor dispute with its employees. The Massachusetts court found that peti-
tioner union was in no way concerned with respondent's labor policy, nor
was there any claim that the union interfered in any manner whatsoever
with the railroad employees.
The N.L.R.B. is empowered to issue complaints whenever " it is charged" that
any person subject to the Act is engaged in any proscribed unfair labor prac-
tice. §10(b). Under the Board's Rules and Regulations such a charge may be
filed by "any person." We think it clear that Congress, in excluding " any per-
son subject to the Railway Labor Act" from the statutory definition of "em-
ployer," carved out of the Labor Management Relations Act the railroads'
employer-employee relationships which were, and are, governed by the Railway
Labor Act. But we do not think that by so doing, Congress intended to divest
the N.L.R.B. of jurisdiction over controversies otherwise within its competence
solely because a railroad is the complaining party. Furthermore, since rail-
roads are not excluded from the Act's definition of "person," they are entitled
to Board protection from the kind of unfair labor practice proscribed by
§8(b)(4)(A). This interpretation permits the harmonious effectuation of three
distinct congressional objectives: (1) to provide orderly and peaceful pro-
cedures for protecting the rights of employers, employees and the public in
labor disputes so as to promote the full, free flow of commerce, as expressed
in §1(b) of the Labor Management Relations Act; (2) to maintain the tradi-
tional separate treatment of employer-employee relationships of railroads sub-
ject to the Railway Labor Act; and (3) to minimize "diversities and conflicts
likely to result from a variety of local procedures and attitudes toward labor
controversies." Garner v. Teamsters Union, 346 U.S. 485, 490, 33 LRRM
2218.
Respondent contends, however, that even if railroads may seek the aid of the
N.L.R.B., it was not required to do so in this case because petitioners' conduct
was neither protected by §7 nor prohibited by §8(b) (4) of the Labor Manage-
ment Relations Act. As we noted earlier, respondent's amended complaint
alleged violations of the Act. Whether the Act was violated or whether, as
respondent now claims, it was not, is, of course, a question for the Board to
determine. Even if petitioners' conduct is not prohibited by §8 of the Act,
it may come within the protection of §7, in which case the State was not
free to enjoin the conduct. In any event, the Board's jurisdiction in the cir-
cumstances of this case is clearly settled by this Court' s recent decision in
Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 481, 35 LRRM 2637:
"But where the moving party itself alleges unfair labor practices, where
the facts reasonably bring the controversy within the sections prohibiting
these practices, and where the conduct, if not prohibited by the federal
Act, may be reasonably deemed to come within the protection afforded
by that Act, the state court must decline jurisdiction in deference to the
tribunal which Congress has selected for determining such issues in the
first instance."
We therefore hold that the question presented by the facts in this case brings
it within the jurisdiction of the N.L.R.B., whose purisdiction is exclusive, and
the respondent railroad may seek any remedy it may have before said Board.
The judgment is Reversed.
[Emphasis supplied.]
It would seem that a decision couched in such plain language would be diapositive
of the question. However, the Board was not a party to the piggy-back case and
on January 24, 1956, it issued its decision in the Paper Makers Importing Co., Inc.,
case, 116 NLRB 267. It registered its dissatisfaction with the reasoning of the court
of appeals in the Rice Milling case, and took the occasion to interpret and construe
the Supreme Court's decision in Teamsters v. New York, New Haven & Hartford
Railroad Co., supra. This case involved a "political subdivision," and presented a
question similar to that of the railroads.
In a portion of the decision entitled "Discussion," the then majority wrote as
follows:
Section 8(b) (4) (A) provides, in relevant part, that it shall be an unfair
labor practice for a labor organization or its agents to induce or encourage
"the employees of any employer" to engage in a work stoppage where an
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1415
object thereof is to force or require "any employer or other person" to cease
handling the products of any other producer, processor, or manufacturer or
to cease doing business with "any other person." The terms "employee,"
"employer," and "person" are defined in the Act as follows:
Sec. 2. When used in this Act-
(1) The term "person" includes one or more individuals, labor organi-
zations, partnerships, associations, corporations, legal representatives, trus-
tees, trustees in bankruptcy or receivers.
(2) The term "employer" includes any person acting as an agent of
an employer, directly or indirectly, but shall not include . . . any State
or political subdivision thereof.. .
(3) The term "employee" shall include any employee, and shall not
be limited to the employees of a particular employer, . but shall not
include . . . any individual employed by an employer subject to the Rail-
way Labor Act, . . . or by any other person who is not an employer as
herein defined.
The parties have stipulated that the city of Milwaukee is a municipal cor-
poration. It is therefore a "political subdivision" of the State of Wisconsin
and as such is specifically excluded from the definition of "employer" contained
in Section 2(2) of the Act. Consequently, the dockworkers employed by the
Milwaukee municipality are not "employees" as defined in Section 2(3) be-
cause they are employed by a "person who is not an employer" as defined
in Section 2(2). The General Counsel contends, however, that these defini-
tions do not control the meaning of the term "employer" as used in Section
8(b)(4)(A). He argues that in excluding public instrumentalities from the
definition of "employer," Congress intended to bar the Board from regulating
the labor relations of employees of governmental bodies, but that it did not
intend to exclude such bodies from the operation of Section 8(b)(4)(A)
because in the latter, Congress used the phrase "any employer" rather than
"employer" thus intending to encompass employers in the generic sense as
distinguished from the limited class defined in Section 2(2) of the Act. The
General Counsel has thus substantially adopted the reasoning of the Fifth
Circuit Court of Appeals in the International Rice Milling case, in which the
court, reversing the Board, held that railroads were covered by the term "any
employer" used in Section 8(b) (4) (A) notwithstanding the specific exclusion
of railroads from the definition of "employer" contained in Section 2(2).
The court said (at pp. 24-26):
The purpose of Section 8(b) (4) (A) and (B) is to protect commerce
from injury, impairment, and interruption, by removing obstructions like
the one we have here. If the Board's view were to prevail, the industry
most directly and extensively concerned with commerce, the vast railroad
transportation system, would be at the mercy of ambitious unions, which
could use them as a means of forcing themselves upon plants like peti-
tioners where they do not have a majority status. .
A close reading of the language used in Section 8(b)(4) convinces us
that, by the use of the words "any employer," Congress intended to ex-
tend the section to any and all situations relative to the one we have
before us. In this particular section, the usage of the word "any," as
applied to the term employer, is confined solely to subsection (4). Con-
trasting the usage of the word "any," as found in subsection (4), with
the use of the indefinite article "an," as used elsewhere in the section
gives rise to the inference, we think, that Congress intended the word
"any" to embrace the class of employers as a whole, and not merely
those within the definition of "employer," as set forth in Section 2(2) of
the Act. . . . Thus, if Congress had intended the word "employer" to
mean only such employers as defined in Section 2(2), it would have pre-
ceded the word by the indefinite article "an." Since this was not done,
we think it reasonable to conclude that the word "employer," as used in
Section 8(b)(4), was intended to have a wider and more inclusive mean-
ing than the definition found in Section 2(2).
A further reading of Section 8(b)(4)(A) reveals the language "forcing
or requiring . . . any employer or other person to cease using, selling,
handling, transporting or otherwise dealing. .. . The definition of the
word "person" in the Act does not exclude railroad companies. The
words "any employer," as used in Section 8(b)(4), appear, to us to refer
to the same employer as described in Section 8(b) (4) (A) by the words
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"any employer or other person." Thus we see the use of the words "any
employer or other person" being used to amplify and explain the words
"any employer." Since the word "person," as defined in the Act, does
not exclude the railroad companies , and since it is used here in connection
with the words "any employer," we think it highly persuasive of the fact
that railroad companies were not intended to be excluded from the pur-
view of Section 8(b)(4)(A) and (B) of the Act. Noscitur a sociis:
the meaning of a word may be ascertained by reference to the meaning
of words associated with it.
In the Sprys case [104 N .L.R.B. 1128] the Board indicated its disagreement
with the court 's decision and opinion in the Rice Milling case. We have care-
fully reexamined the court 's opinion and are constrained once again to express
our disagreement with it. We further note that in its consideration of the
problem, that court failed to take into account a second hurdle in the defini-
tion of "employees." Unless the persons "induced" are "employees," the in-
ducement does not fall within the proscription of Section 8(b) (4). That
court's approach thus would require that we ignore not only the definition of
"employer" but also of "employee" in interpreting the Act.
The Board's function is to carry out the mandate of Congress embodied in
the National Labor Relations Act, as amended. The Board cannot modify the
statute to conform to its own notion of desirable policy. The intent of Con-
gress is to be derived primarily from the language used in the statute. And
where the statutory language is clear and unambiguous on its face, there is
no room for construction, but the statute must be applied as written. Congress
has said explicitly that "when used in this Act" the terms "employer" and
"employee" shall have the meanings set out in Section 2(2) and 2(3), re-
spectively. Congress has not said that the definitions contained in Section 2
were not to be applied to Section 8(b) (4) (A). If that had been its intent,
it could easily have indicated as much by adding "except in Section 8(b)(4)
(A)" to the phrase "When used in this Act." That Congress did not utilize
this simple device is persuasive evidence that it intended the definitions set
forth in Section 2 to be applied throughout the Act without qualification or
exception.
Further, we do not consider that the recent Supreme Court decision in the
"piggy-back" case affects the above conclusion. In the "piggy-back" case, the
Supreme Court decided that a railroad as a "person" may file secondary boycott
charges against a labor organization . It did not decide that a railroad and,
a fortiori, a municipality, is also an "employer." In fact, it carefully avoided
making such determination; and it certainly did not decide that the terms
,"employer" and "person" as used in Section 8(b)(4)(A) are synonymous, one
of the arguments advanced by the court of appeals in the Rice Milling decision
to support its interpretation of the phrase "any employer."
A violation of Section 8(b)(4)(A) is made out according to the wording
of the statute, when two things concur: (1) A labor organization or its agent
has induced or encouraged "employees of any employer" to engage in a strike,
etc.; (2) with an object of forcing or requiring "any employer or other per-
son" to cease handling the products of any other producer, etc., or to cease
doing business with "any other person." It is significant that the word "per-
son" occurs only in part (2) which deals with proscribed objectives, and not
in part (1) which sets forth the kind of conduct which may not be used to
achieve the proscribed listed objectives. We have no right to assume that the
omission of the term "person" from part (1) was not deliberate and reflects
only careless draftsmanship. On the contrary all the evidence is that Section
8(b)(4) was carefully considered and drawn. If Congress had intended "em-
ployer" and "person" to be interchangeable wherever used in Section 8(b)(4)
(A), it could have indicated as much by adding "or other person" to "any
employer" in part (1) just as that phrase was added in part (2). The failure
to do so, it seems to us, reflects Congress ' intention that only inducement or
encouragement of employees of an employer , defined as such in Section 2
of the Act, to engage in a strike, etc., for an object proscribed in 8(b) (4) (A)
is unlawful . Therefore , as the city of Milwaukee is not an "employer" and
its workers are not "employees ," as those terms are defined in the Act, we find
that the Respondent did not "induce or encourage the employees of any em-
ployer" to engage in a work stoppage for an objective proscribed in Section
8(b) (4) (A ). We feel constrained to make this finding because we consider it
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1417
the Board's duty to apply the Act as written. If there is disagreement with
the result we must reach in discharging that duty, the proper forum for a
change of the Act is Congress.
However, Member Rodgers registered a vigorous dissent . He wrote:
3. The majority's position conflicts with the decision of the Supreme Court
in Teamsters Union v. New York, New Haven & Hartford Railroad Co., 350
U.S. 155 (the so-called "piggy-back" case). The issue in that case was
whether a Massachusetts State court could enjoin an alleged unlawful second-
ary boycott by a labor organization subject to the Act where the petitioner
was an interstate railroad subject to the Railway Labor Act. The alleged
secondary boycott involved a motor carrier. The Massachusetts Supreme
Court determined that the State court had jurisdiction "because the Labor
Management Relations Act's definition of `employer,' as interpreted by the
N.L.R.B. cast doubt upon [the Railroad's] ability to obtain relief under that
Act" (350 U.S. at p. 159). Upon review, the United States Supreme Court
held that the State court could not enjoin the union's conduct, that this Board
had exclusive jurisdiction, and that the railroad was protected by Section
8(b) (4) (A) of the Act.
In reaching its decision, the Court has necessarily rejected the underlying.
rationale of the majority's position in this case. The majority refuses to protect
the employer involved herein because it does not come within Section 2(2) of
the Act. Otherwise stated, since the employer is not subject to the regulatory
scope of the Act, as are employers under Section 2(2), it is not entitled to the
Act's protection. The majority thus equates the protective reach of the Act with
its regulatory scope. This is known as the "correlative rights and duties" con-
cept of the Act which the Board first adopted in the Schneider [89 N.L.R.B. 2211.
case and reaffirmed in the Sprys case, relied upon by the majority here. It was
also in reliance upon the Schneider and Sprys cases that the Massachusetts
Supreme Court found that railroads could not obtain relief under the Act.
The Supreme Court, in reversing the Massachusetts court, has clearly re-
jected the "correlative rights and duties" concept of the Act. The Court ruled
instead that the protective reach of the Act is broader than its regulatory
scope, and, therefore, that the right of an employer to Board protection is in
no way dependent upon that employer being itself subject to the Act. Thus
the Court stated: "It is clear that neither railroads nor their employees may
carry their grievances with one another to the N.L.R.B. for resolution. But
it does not follow from this that a railroad is precluded from seeking the aid
of the Board in circumstances unrelated to its employer-employee relations"
(350 U.S., at 159). The Court went on to state, after noting that railroads
are excluded from the Act's definition of employer: "We do not think that by
so doing Congress intended to divest the N.L.R.B. of jurisdiction over contro-
versies otherwise within its competence solely because a railroad is the com-
plaining party. Furthermore, since railroads are not excluded from the Act's
definition of `person,' they are entitled to Board protection from the kind of
unfair labor practice proscribed by Section 8(b)(4)(A)" (350 U.S., at 160).
That "kind of unfair labor practice" is one which involves, in the words of
the statute, the inducement or encouragement of the employees of any em-
ployer. The majority claims, nonetheless, that the Court intended to protect
railroads only as "persons" and not as "employers." In other words, accord-
ing to the majority, a railroad is entitled under the Supreme Court' s decision
to protection where it is indirectly injured as in the case of secondary boycott
aimed at compelling a customer to cease doing business with it, but not where
the railroad is directly injured as in the case of a secondary boycott involving
its own employees. The majority bases this contention on no more than the
failure of the Supreme Court to find expressly that a railroad is also an "em
-ployer" within the meaning of Section 8(b) (4) (A). Inasmuchas the issue
before the Court was whether a railroad may file a charge to invoke the
Board's protection, and the Board's Rules and Regulations, relied on by the
Court in determining who may file a charge, speaks only of "any person," it
was sufficient for the Court to have found the railroad to be "a person" and
it would have been wholly superfluous for the Court to have gone into the
"emnlover" question. It is, therefore, not permissible to infer, as does the
majority, that the Court did not intend to protect railroads as employers. The
more reasonable inference, particularly in view of the broad language of the
Court that railroads "are entitled to Board protection from the kind of unfair
labor practice proscribed by Section 8(b)(4)(A)," is that the Supreme Court
intended to protect railroads in either capacity.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
On December 10, 1956, the Board issued its decision in W. T. Smith Lumber Com-
pany, 116 NLRB 1756. In this case the Woodworkers in the course of a strike at
the lumber company picketed across the tracks of the Louisville & Nashville Rail-
road. Upon a motion to dismiss heard by the Trial Examiner, the General Counsel
relied on the court of appeals decision in the Rice Milling case, and the Union upon
the Board's decision in the Paper Makers case. The Trial Examiner dismissed the
complaint with reference to the railroad company and upon review of the dismissal,
the Board reaffirmed its concept of the law as stated in Paper Makers and affirmed
the decision of the Trial Examiner.
The case then went to the Fifth Circuit Court of Appeals. In its decision entitled
W. T. Smith Lumber Company v. N.L.R.B., 246 F. 2d 129, the court stated that its
decision in the Rice Milling case was dispositive of the question, and that the court
felt "strengthened in this view by the approach of the Supreme Court in Teamsters v.
New York, New Haven & Hartford Railroad Co." (supra). The Court remanded
the case to the Board for the issuance of an appropriate order. The Board in turn
remanded the case to the Regional Director for a hearing on the merits. Thereafter
all parties entered into a stipulation consistent with the decision of the court of
appeals which provided for the entry by consent of a supplemental Board order and
court decree disposing of the issues.
On February 7, 1957, the case of Local Union No. 313 and Peter D. Furness Elec-
tric Co., 117 NLRB 437, came before the Board. The Board took this opportunity
to reassess the Supreme Court's decision in the "piggy-back" case as it might affect
its decision as to whether a county, as a political subdivision, could avail itself of
the protection of the Act, when subjected to secondary pressures by a labor union.
In this decision a Board majority accepted the Supreme Court's reasoning to a lim-
ited extent and found that political subdivisions were "persons" under Section 8(b)
(4) (A), but in a footnote stated that the ruling was not to be construed as affecting
the Board's findings in the Paper Makers case, among others. Member Murdock
dissented.
In its decision in U and Me Transfer, etc., 119 NLRB 852, the Board again had
the same question before it in regard to the Seaboard Airline Railroad and the
Florida East Coast Railroad. In disposing of the question, the majority followed
the decisions of the Court of Appeals, Fifth Circuit, with the following explanation
in a footnote:
Seaboard, FEC, and their respective employees are subject to the provisions
of the Railway Labor Act. Notwithstanding the recent adverse decision of the
Court of Appeals for the Fifth Circuit in W. T. Smith Lumber Company v.
N.L.R.B., 246 F. 2d 129, Chairman Leedom and Members Murdock and Bean
are still of the view, previously maintained by them in Paper Makers Importing
Co., Inc., 116 NLRB 267, and in W. T. Smith Lumber Company, 116 NLRB
1756, that railroad workers are not employees within the meaning of the Act
and thus are not subject to inducement or encouragement in the statutory sense.
However, as the Board, for reasons sufficient to it, has not filed certiorari pro-
ceedings for review, Chairman Leedom and Members Murdock and Bean acqui-
esce in the court's decision and here apply the court's view, the instant case
falling within the. geographical jurisdiction of that court. Member Jenkins,
however, is in agreement with the court's view in the W. T. Smith Lumber case.
[Emphasis supplied.]
Member Jenkins' views were vigorously expressed. In concurring he wrote as
follows:
[Text] Although I join the majority in sustaining the complaint in this case,
I find myself in the minority on the phase of the case which requires determi-
nation of the issue of statutory interpretation raised by the Respondents' picket-
ing at the two railroad terminals. On the latter issue, Member Murdock, though
finding himself unable to sustain the complaint for other reasons, joins Chair-
man Leedom and Member Bean in adhering to the view, "previously main-
tained by them in Paper Makers . . . and W. T. Smith Lumber Co.. ., that
railroad workers are not employees within the meaning of the Act." However,
they have decided to "acquiesce" in the contrary ruling of the Fifth Circuit
Court of Appeals in the W. T. Smith Lumber case where, as here, a case re-
quiring disposition of that statutory issue falls "in the geographical jurisdiction
of that court." I entertain no reservations as to the validity of the Fifth Circuit
Court's determination in the W. T. Smith Lumber case that railroads are "em-
ployers" whose "employees" are subject to inducement and encouragement in
the statutory sense of those words in Section 8(b)(4).
LUMBER & SAWMILL WORKERS LOCAL UNION 2409 1419
The crucial issue of whether union inducement addressed to employees of a
neutral railroad constitutes a violation of Section 8(b) (4) if for the' proscribed
objectives therein was first presented to the Board in 1949 in the International
Rice Milling Co. case.... The Board there read the exclusionary language of
Section 2 of the Act into the provisions of Section 8(b)(4) and held the Board
to be without power to afford any effective remedy in the circumstances. While
the Fifth Circuit Court of Appeals took a contrary view of the Board's power
in that very case, a Board majority has nevertheless continued to follow the
concepts formulated by the Board in the Rice Milling case-and, as is here
indicated, still continues so to do.
The Board's adamant adherence to its Rice Milling concept, despite the well-
reasoned disagreement of the Fifth Circuit Court of Appeals with the restrictive
interpretation of the statute such concept represented, may have been justified
pending a definitive interpretation of the statutory language involved by the
Supreme Court. But I find no justification for any present adherence of a
Board majority to such concept in light of the Supreme Court's decision in
Local Union No. 25, International Brotherhood of Teamsters, etc. v. New York,
New Haven & Hartford Railroad Co., 350 U.S. 155 (the so-called "piggy-back"
case, decided January 9, 1956). And I am surprised that Chairman Leedom
and Member Bean would, after subscribing to the majority opinion in the Peter
Furness case, continue, as they indicate in the instant case, to adhere to the
Rice Milling concept. For they recognized in the Peter Furness case that in. the
"piggy-back" decision, the Supreme Court considered and rejected Board rea-
soning supplying the foundation for the view that the exclusionary definition of
Section 2 of the Act was to be read into the provisions of Section 8(b)(4).
By their present indicated area of adherence to the Board's Rice Milling con-
cept, my colleagues arrive at the absurd result that (except in the Fifth Circuit
Court's jurisdiction) a strike to compel a neutral person (including a railroad)
to terminate its relations with a primary employer in a labor dispute is pro-
hibited by the Act, whereas picketing or other inducement short of a strike
addressed to employees of a railroad for the same end is permitted activity.
In agreement with the dissenting opinion of my colleague, Member Rodgers,
in the Paper Makers and W. T. Smith Lumber cases, respectively, and with the
opinion of the Fifth Circuit Court of Appeals in the latter, reversing the
majority's dismissal of the complaint, I regard the above-cited Supreme Court
case as holding definitively that while this Act does not regulate railroads in
the conduct of their relations with their employees, it does afford railroads pro-
tection against any union inducement or union sponsorship of strike action by
any employees, including their own where "an object" of such union action is
to force neutral railroads to aid the union's cause in a dispute in which neither
the railroads nor their employees are immediately involved. The actual or
potential obstruction to the railroad's business and the interruption to the trans-
portation of goods in commerce resulting from such action is at least as great
in such situations as it is in the Furness type of fact situation.
It is true that in the "piggy-back" case the inducement of the union to "em-
ployees" of the railroad was not in issue, and that accordingly it might be said
that the Supreme Court's decision is not a direct holding on the question of
whether inducement to employees of a railroad is immune from the Act's pro-
scription. However, the issue of statutory interpretation before the Court
involved construction of language (utilized in Section 8(b) (4)) describing what
portion of the public was to be afforded the protections described in the Act.
This section, as written by the Congress, employs the words "employers" and
"persons" interchangeably in a scheme in which the definition section of the
Act (Section 2) expressly excludes anyone subject to the Railway Labor Act.
In its decision, the Court employed both words interchangeably in defining the
purview of Section 8(b)(4) and the rights of railroad employers thereunder.
In this, and in other ways, the Court clearly indicated, so it seems to me, that
the sole effect of Section 2 of the Act was to "carve out" of the regulatory
ambit of the Act the railroad company's own conduct of its relationships to
its own employees and no more. I so find. I find further that the Court, in
effect, directed the Board not to refuse "jurisdiction over controversies other-
wise within its competence solely because a railroad is the complaining party"
-a directive clearly disregarded by the reluctant majority which still main-
tains that in cases outside the Fifth Circuit Court's geographical jurisdiction,
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board has no power to forbid union inducement or encouragement of
work stoppages by railroad employees even where it is clear that the object
of such union action is to force the railroad's participation in a dispute not of
its making between the union and an employer clearly within the Act's
coverage.
It automatically follows from what I have said that my approval of the
findings of violation made herein and the order issued thereon is based, as to,
that part of the findings and order concerning the two railroads and their
employees, upon an unqualified acceptance of the concept that railroads are
employers whose employees are subject to inducement and encouragement
within the meaning of those terms as used in Section 8 (b)(4).
On August 7, 1958, the Board issued its decision in International Brotherhood of
Teamsters Union etc. (Ailing & Cory Co.), 121 NLRB 315. It noted that among.
the secondary neutral employers named in the complaint, whose employees were in-
duced by the union not to handle the struck employer's products, was the New York.
Central Railroad. The Board concluded, "New York Central Railroad and its em-
ployees are subject to the Railway Labor Act, and neither of them is an employer or
employee within the meaning of Section 2(2), 2(3), and 8(b) of the Act." There-
fore, allegations of the complaint are dismissed with respect to the inducement of
such employees. See Paper Makers and W. T. Smith Lumber Co., supra.
On October 5, 1958, the Board issued its decision in United Hatters, etc. V..
Louisville Cap Co., 121 NLRB 1154. In this decision the Board wrote:
2. The Trial Examiner found no violation of Section 8(b)(4) in Respond-
ent Ross' approach to employees of Railway Express Agency, Inc., for assist-
ance in the Respondents' strike against Louisville Cap Company. Railway
Express Agency is an employer subject to the Railway Labor Act, and there-
fore excluded from the definition of "employer" found in Section 2(2) of the-
Labor Management Relations Act. Its employees, likewise, are excluded by
Section 2(3). The Trial Examiner based his finding on the decision of a
Board majority in Paper Makers Importing Co., 116 NLRB 267, that em-
ployees excluded from the coverage of Section 2(3) are not subject to induce-
ment or encouragement within the meaning of Section 8(b)(4). As a major-
ity of the Board continues to adhere to the Papermakers rule, we adopt his-
finding. [Citing U & Me Transfer and Ailing & Cory Co., both supra.]
The decision also noted the dissent of Member Rodgers as stated in the Smith-
Lumber Company case and the Paper Makers case, supra.
The summary above brings the pertinent authorities up to date. To a limited'
extent it clarifies the issue here. It establishes that within the geographical bound-
aries of the Court of Appeals, Fifth Circuit, the court and the Board, in apparent.
agreement with the Supreme Court, have reached a final determination on the
question, and within that jurisdiction railroads are "employers" and their employees
are "employees," and the railroad companies are entitled to the protection of Sec-
tion 8 (b) (4) (A).
But, it is equally clear that for the rest of the Nation, which includes the geo-
graphical territory in which the Great Northern operates, the Board adheres to the
doctrine it expressed in Paper Makers.
Upon a consideration of the authorities, the writer finds himself in complete
agreement with the settled law of the Fifth Circuit, and the dissenting opinions
of Members Rodgers and Jenkins. However, in a line of recent cases, the Board'
said that it is a "Trial Examiner's duty to apply established Board precedent, which
the Board or the Supreme Court has not reversed. Only by such recognition of
the legal authority of Board precedent, will a uniform and orderly administration
of a national act, such as the National Labor Relations Act, be achieved." 15
In the discharge of that duty, the Trial Examiner has no alternative but to
follow the Paper Makers decision and to recommend the dismissal of the complaint
herein , on the ground that Great Northern is not "an employer," and its employees
are not "employees," within the meaning of Section 8(b) (4) (A), and, on those
findings, that the Great Northern is not "entitled to Board protection from the
kind of unfair labor practice proscribed by § 8(b) (4) (A)," the kind of conduct
found above.
l The Prudential Insurance Company of America , 119 NLRB 768; Novak Logging
Company, 119 NLRB 1573 ; Scherrer and Davisson Logging Company , 119 NLRB 1587.