Milk Drivers and Dairy Employees Local Union No. 246

National Labor Relations Board - Board Decisions

Aug 12, 1958

121 N.L.R.B. 436 (N.L.R.B. 1958)

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436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomary and may therefore be reasonably presumed to have included the aggregate
sum had the bonus payment been made in 2 payments The Trial Examiner there-
fore deems a recommendation of another payment to the De Redder employees
to be a punitive gesture and will not so recommend
This does not mean that the Trial Examiner believes the Respondent did not
engage in an unfair labor practice within the meaning of Section 8 (a) (1) and (3)
by failing to pay the "summer" bonus at De Redder Quite the contrary
Inasmuch as the wage scale and bonus payment are the same at both plants, while
finding that the Respondent engaged in conduct violative of the Act by withholding
both the "summer" and the December bonus payments at the Picayune plant, the
Trial Examiner will recommend that a single payment , arrived at in the same man-
ner as previously at De Ridder , be made to the Respondent's employees at Picayune
The Trial Examiner therefore recommends that the Respondent pay the employees
at its Picayune plant, eligible therefor, a bonus for the year 1956, including both
the "summer" and December payments customarily made, the payment to be in a
single payment and to be arrived at in the same manner as the bonus paid in Decem-
ber 1956 by the Respondent to its employees at its De Ridder, Louisiana, plant
The Trial Examiner believes that the preventive purposes of the Act will be
thwarted unless the recommendations herein made are coextensive with the threat
contained in violations of the Act herein found It will therefore be recommended
that the Respondent cease and desist from infringing in any manner upon the
employees' rights guaranteed in Section 7 of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following
CONCLUSIONS OF LAW
1 Crosby Chemicals , Inc, Picayune , Mississippi, and De Redder, Louisiana, is
engaged in commerce within the meaning of the Act
2 International Chemical Workers Union, AFL-CIO , is a labor organization
within the meaning of the Act
3 By withholding the payment of a regular semiannual bonus customarily paid
to its nonsupervisory production and maintenance employees at its De Redder,
Louisiana , and Picayune, Mississippi , plants during the summer of 1956, and by
in addition thereto also withholding the payment during the month of December
1956 of a regular semiannual bonus customarily paid to its nonsupervisory pro-
duction and maintenance employees at its Picayune , Mississippi , plant, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act
4 By such conduct and discrimination and further interfering with, restraining,
and coercing employees in the exercise of the rights guaranteed in Section 7 of the
Act, as herein found, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) 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
[Recommendations omitted from publication ]
Milk Drivers and Dairy Employees Local Union No. 246, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Mayco , Inc. Case No 5-CC-
88 August 12, 1958
DECISION AND ORDER
On February 21, 1958, Trial Examiner Max M Goldman issued his
'Intermediate Report in the above-entitled proceeding, finding that
Milk Drivers and Dairy Employees Local Union No 246, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
-121 NLRB No 61
MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION NO. 246 437
Helpers of America, Respondent herein, had engaged in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondent Union
filed exceptions to the Intermediate Report and 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-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case and adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications.
The Trial Examiner found that the "hot cargo" clause in the con-
tracts between the Respondent and the secondary employers, as set
forth in the Intermediate Report, did not constitute a defense to
Respondent's picketing of such secondary employers and the direct
oral inducement by Respondent's representatives of the employees of
such employers not to handle Mayco's products. While it is not clear
whether the clause is in fact a "hot cargo" clause of the type construed
in the Sand Door and American Iron and Machine Works cases,'
even if we treat it as such a clause, we would still find that the Re-
spondent's picketing of the premises of the secondary employers and
its oral appeals to and inducement of the employees of such employers
not to handle Mayco's goods constituted violations of Section 8 (b)
(4) (A) under the principles of the Sand Door and American Iron
and Machine Works cases, as affirmed by the Supreme Court.
-ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Milk Drivers and
Dairy Employees Local Union No. 246, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, its
officers, representatives, agents, successors, and assigns shall :
1. Cease and desist from picketing or in any other manner inducing
or encouraging employees of any employer other than Mayco, Inc., to
engage in a strike or concerted refusal in the course of their employ-
ment to use, manufacture, process, transport, or otherwise handle or
work on goods, articles, or commodities or to perform services for
1Local 1976 , United Brotherhood of Carpenters and Joiners , etc. (Sand Door and Ply-
Wood Co ), 113 .NLRB 1210, affd 357 U. S. 93. General Drivers, Chauffeurs , Warehouse-
men and Helpers Union , Local No. 886 , AFL-CIO, ( American , Iron and Machine Works
Company ), 115 NLRB 800 ; affd. 357 U. S. 93.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their respective employers where an object thereof is to force or
require any employer or person to cease doing business with Mayco,
Inc.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Post at the business office of Milk Drivers and Dairy Em-
ployees Local Union No. 246, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, copies of
the notice attached hereto marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Fifth Region,
after being duly signed by an official representative of the Respond-
ent, shall be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to members of the Respondent are customarily posted. Rea-
sonable steps shall be taken by the Respondent" to insure that said
notices are not altered, defaced, or covered by any other material.
The Respondent's representative shall also sign copies of said notice
which the said Regional Director shall submit for posting, the em-
ployers willing, at the premises of Mayco, Inc., and the other em-
ployers found herein to have been affected by the Respondent's
unfair labor practices, Chestnut Farms and Embassy Dairy:
(b) Notify said Regional Director in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
To ALL OFFICERS, REPRESENTATIVES, AGENTS, AND MEMBERS OF MILK
DRIVERS AND DAIRY EMPLOYEES LOCAL UNION No. 246, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA
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 you that :
WE WILL NOT by picketing or in any other manner induce or
encourage the employees of any employer other than Mayco,
Inc., to engage in a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or
otherwise handle or work on goods, articles, or commodities, or
to perform any services for their respective employers where
MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION NO. 246 439
an object thereof is to force or require any employer or person
to cease doing business with Mayco, Inc.
MILK DRIVERS AND DAIRY EMPLOYEES
LOCAL UNION No. 246, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA,
Labor Organization.
Dated---------------- By------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by Mayco, Inc., herein called the Charging Party or the
Company, the General Counsel by the Regional Director for the Fifth Region
(Baltimore, Maryland), of the National Labor Relations Board, herein called the
Board, issued his complaint dated October 3, 1957, against Milk Drivers and Dairy
Employees Local Union No. 246, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, herein called the
Respondent or the Union, alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8 (b) (4) (A) and Section 2 (6) and (7) of the Labor Management Relations
Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and the
charge together with the notice of hearing were duly served upon the Respondent
and the Charging Party. The Respondent's answer denies the commission of unfair
labor practices.
Pursuant to notice a hearing was held on November 25, 1957, at Washington,
D. C. Full opportunity to. be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded the parties. The General
Counsel filed a brief.
Upon the entire record in the case and upon his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS INVOLVED
Mayco, Inc., the Charging Party, a Maryland corporation, with principal offices
located at Lexington Park, Maryland, is engaged in the business of selling and
distributing dairy products. During the past year, the Charging Party purchased
dairy products valued in excess of $500,000, which it transported to its place of
business in the State of Maryland from points outside the State. During the same
period, the Charging Party sold products valued in excess of $100,000 to the
United States Navy. It is found that the Charging Party is engaged in commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Milk Drivers and Dairy Employees Local Union No. 246, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers, AFL-CIO, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The events
The Company and the Union have had contractual relations for several years
until August 14, 1957, when their contract expired . On the morning of August
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
20, the Union struck and picketed the Company 's premises at Lexington Park,
Maryland , over dispute as to a new contract . At Lexington Park, the Company
with the services of about 11 employees distributes dairy products locally which
normally it trucks from Embassy Dairy and Chestnut Farms Dairy at Washington,
D. C.
On that day, August 20, and the following day when Joe Ellis, the Company's
driver who trucked the milk to Lexington Park from the Company's Washington
suppliers, appeared at Embassy and Chestnut Farms to pick up the supplies, he
was unable after making several attempts to obtain any milk from these suppliers
except for some which he obtained on the second day from Chestnut Farms. On
the occasions when Ellis appeared at the premises of the suppliers to pick up milk,
the Company's truck was picketed by the Union. The picket sign read as follows:
Employees Of
Mayco, Inc.
On Strike
Milk Drivers and Dairy Employees,
Local Union No. 246, AFL-CIO
The Union 's business agents informed the officials of Embassy and Chestnut
Farms that the Company was on strike and that they were not to supply the
Company with any milk under threat of trouble. In addition they solicited em-
ployees of these suppliers not to load the Company's truck. Thus, Business Agent
Clark stated to employees at Embassy that he could not tell them directly not to load
the Company's truck. Clark and Business Agent Simpson also told employees at
Chestnut Farms who were loading the Company's truck that the Company's
employees were on strike and that if they were good union brothers they would
as a matter of conscience support the strikers . Simpson stated to an employee at
Chestnut Farms upon his inquiry about loading the Company's truck which was
being picketed, that the Union could not tell him not to load the truck, but that the
Union would be happy if the employees found enough union men not to load the
Company's truck. The employee and two others thereupon inquired of an officer
of the Union about loading the truck and the officer informed them that he could
not tell them not to load the truck but assured them if they did not load it he
would back them up. One of the employees performed the loading work and the
other two employees went home.
There is evidence of two other incidents involving Simpson and Clark at Chestnut
Farms. When some Chestnut Farms employees started to load the Company's truck
while it was being picketed by the Union, Simpson and Clark appeared. Clark asked
one of the men if he knew it was a nonunion truck. This employee thereafter in-
formed a Chestnut Farms official that he did not want to load the Company's truck,
and this employee left the premises when that official told him to clock out. During
the other incident, Clark, addressing men who were loading the Company's truck, told
them that they were working against their fellow union men and that they could
have their union cards withdrawn.
B. Conclusions
The Respondent defends the above -described conduct which the General Counsel
alleges constitutes a violation of Section 8 (b) (4) (A ) of the Act, on the ground
that its contract with Chestnut Farms and Embassy Dairy contains a "hot cargo"
clause, and that its request to secondary employees to enforce this clause was per-
missible under General Drivers, etc. Local 886 v. N. L. R. B. (American Iron and
Machine Works), 247 F. 2d 71 (C. A., D. C.). The clause involved reads as follows:
There shall be no strikes, walkouts or lockouts during the life of this agreement.
The Employer agrees that members of this Union have a right to refuse to cross
picket lines which have the approval of Washington Teamsters Joint Council
No. 55, affiliate of the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
Aside from the absence of a showing that the picket line had the approval of the
Washington Teamsters Joint Council No. 55 to meet the terms of the contract, with
due regard for the views of the Circuit Court for the District of Columbia in the
General Drivers case cited above, under the Board 's view , which the Trial Examiner
MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION NO. 246 441
is constrained to follow,' and for the reasons set forth by the Board in its decision in
that case (115 NLRB 800), no merit is found in this defense.2
The Respondent also defends its ambulatory picketing on the basis of Sales Drivers,
etc., Local 859 v. N. L. R. B. (Campbell Coal Co.), 229 F. 2d 514 (C. A., D. C.),
cert. denied 351 U. S. 972. This case was enforced after remand, 116 NLRB 1020,
249 F. 2d 512 (C. A., D. C.). Here, as in the above-cited case, the Respondent's
picketing was intended to induce a concerted refusal to work by employees of neutral
employers. Thus, not only was there opportunity to picket at the Company's place of
business, but the Union also through its agents made efforts to induce employees of
the.Company's suppliers, Embassy and Chestnut Farms, not to handle goods to be
loaded on the Company's truck for the purpose of having these suppliers cease doing
business with the Company. For example, as found above, the Union's agent or
agents not only threatened officials of Embassy and Chestnut Farms with trouble if
they supplied the Company with milk but also (1) stated to employees at Embassy
that he could not tell them directly not to load the Company's truck; (2) informed
Chestnut Farms employees that the Company's employees were on strike and sug-
gested that if they were good union brothers they would as a matter of conscience
support the strikers; (3) declared to a Chestnut Farms employee that the Union
could not tell them not to load the Company's truck, but that the Union would be
happy if he found enough union men not to load the Company's truck; (4) inquired of
a Chestnut Farms employee, who with others was loading the Company's truck while
it was being picketed, whether he knew that it was a nonunion truck; and (5) in-
formed Chestnut Farms employees who were loading the Company's truck that they
were working against their fellow union men and threatened to withdraw their union
cards.
It is accordingly found that by picketing the Company's truck at the premises of
Embassy Dairy and Chestnut Farms and soliciting employees of these employers
concertedly to refuse to load the Company's truck in order to force their employers to
cease doing business with the Company, the Union on August 20 and 21, 1957, in-
duced and encouraged employees of neutral employers in violation of Section 8
(b) (4) (A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Charging Party, described in section 1, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in activities violative of Section 8
(b) (4) (A) of the Act, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Mayco, Inc., the Charging Party, is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Milk Drivers and Dairy Employees Local Union No. 246, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By picketing the Charging Party's truck at the premises of Embassy Dairy .and
Chestnut Farms and by soliciting the employees of these employers to engage in a
concerted refusal to handle products for the Charging Party with an object of forcing
or requiring their employers to cease doing business with the Charging Party; the
Respondent has engaged in unfair labor practices within the meaning of Section 8
,(b) (4) (A) of the Act." '
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
I The Prudential Insurance Company of America, 119 NLRB 768
2 See, also, Local 1976, United Brotherhood of Carpenters, etc (Sand-Door and Ply-
wood Co ), 113 NLRB 1210, and Truck Drivers etc, Local Union No 728 (Genuine Parts
Company), 119 NLRB 399