Reilly Cartage Co.

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1742 (N.L.R.B. 1954)

1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MARIE T. REILLY D/B/A REILLY CARTAGE COMPANY and CHAUFFEURS,
TEAMSTERS AND HELPERS "GENERAL" LOCAL UNION No. 200, AFL
CHAUFFEURS, TEAMSTERS AND HELPERS "GENERAL" LOCAL UNION No.
200, AFL and MARIE T. REILLY D/B/A REILLY CARTAGE COMPANY.
Cases Nos. 13-CA-1285 and 13-CC-67. December 16, 1954
Decision and Order
On September 3, 1953, Trial Examiner Sidney S. Asher, Jr., issued
his Intermediate Report in the above-entitled consolidated proceed-
ing, finding that the Respondent, Marie T. Reilly d/b/a Reilly Cartage
Company, herein called the Company, had engaged in and was engag-
ing in certain unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative action, and finding
that the Respondent, Chauffeurs, Teamsters and Helpers "General"'
Local Union No. 200, AFL, herein called the Union, had not engaged
in the unfair labor practices alleged in the complaint and recommend-
ing that the complaint be dismissed as to it, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Com-
pany, the Union, and the General Counsel filed exceptions to the Inter-
mediate Report, with supporting briefs. The Company requested, and
the Board granted, oral argument upon the issues involved in the com-
plaint against the Union, which was heard on December 1, 1953.
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 briefs, the oral argument, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only insofar as they are
consistent with this Decision and Order.'
1. The Company is engaged in the local cartage business in Mil-
waukee, Wisconsin. In 1952, the Company's business totaled ap-
proximately $67,000, of which approximately 50 percent consisted of
hauling from one industrial plant to another within the city, and the
remaining 50 percent of hauling from industrial plants to the rail-
roads or freight forwarders. In 1953, the Company's total business
I During the pendency of this proceeding , the Board adopted new jurisdictional stand-
ards. A reopened bearing to obtain additional commerce information , pursuant to the
order of the Board, was held before Trial Examiner Max M Goldman, who issued his
Supplemental Intermediate Report on November 12, 1954, containing findings of fact as
to the business of the Company (the Respondent in Case No 13-CA-1285) and four other
named employers (the secondary employers in Case No. 13-CC-67), but making no rec-
ommendations as to the assertion of jurisdiction . Thereafter the Company filed excep-
tions and a brief The Board has reviewed the rulings of the Trial Examiner at the re-
opened hearing , finds that no prejudicial error was committed , and hereby affirms such
rulings . The Board has considered the Supplemental Intermediate Report, exceptions and
brief , and the entire record, and hereby adopts the Trial Examiner ' s findings of fact, which
are set forth in substance above.
110 NLRB No. 233.
REILLY CARTAGE COMPANY 1743
was approximately the same, but consisted to the extent of approxi-
mately 35 percent in hauling freight from the Chain Belt Company
to the terminals of over-the-road motor carriers, approximately 50
percent in hauling from plant to plant within the city, and 15 percent
in hauling between various Milwaukee firms and the railroads.
Mercury Motorways, Inc., has offices and warehouses in Cleveland
and Toledo, Ohio; Fort Wayne, Indiana; Detroit, Michigan; and in
Milwaukee, Racine, and Kenosha, Wisconsin. It is principally en-
gaged in the interstate transportation of freight. Mercury's annual
gross receipts exceeded $2,000,000 in both 1952 and 1953, of which
approximately one-third was received from the Milwaukee branch.
Trucks leave Milwaukee for all of Mercury's other business locations.
Royal Transit, Inc., has offices and terminals in Chicago, Rockford,
and Freeport, Illinois; and Milwaukee, Burlington, and Waukesha,
Wisconsin. Royal also has an agent operating a terminal in Racine,
Wisconsin. It is a common carrier of general commodities, about 90
percent of its business being interstate. Royal's total annual busi-
ness exceeded $1,500,000 in both 1952 and 1953, of which approxi-
mately two-thirds was derived from its Milwaukee branch.
Checker Express Company has offices in Milwaukee, Wisconsin, and
Chicago, Illinois, and its trucks operate in the States of Wisconsin,
Illinois, and Indiana. Checker's total receipts in 1952 exceeded $900,-
000 and in 1953 exceeded $1,000,000, of which approximately 50 per-
cent was derived from its Milwaukee branch. About 10 percent of the
total was derived from purely local operations within the city of
Milwaukee.
Consolidated Forwarding Company has offices and warehouses in
the cities of St. Louis, Missouri; Milwaukee, Wisconsin; Indianapolis,
Indiana; and similar facilities in the States of Oklahoma, Texas,
Ohio, and Illinois. Its entire business consists of the interstate haul-
ing of general merchandise. Consolidated's annual income exceeded
$4,000,000 in both 1952 and 1953. Approximately one-fourth of its
total receipts were derived from its Milwaukee branch.
From the above figures it is apparent that, as the total amount of
the Company's interstate operations both in 1952 and in 1953 was less
than $100,000, it does not meet any of the tests under the Board's
new jurisdictional standards which might be applicable to this enter-
prise 2 However, as the Board stated in the Jamestown 3 and Earl
Vann4 cases, in secondary boycott situations such as this it will take
2 Breeding Transfer Company, 110 NLRB 493 ( minimum of $ 100,000 annual income
from transportation operations which constitute a link in the chain of interstate com-
merce).
3 Truck Drivers Local Union No. 649, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL (Jamestown Builders Exchange, Inc ),
93 NLRB 386.
4 Local Union No. 830 , Brewery and Beer Distributor Drivers, Helpers , and Platform
Men, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America, AFL (Earl Vann), 106 NLRB 405.
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into consideration for jurisdictional purposes not only the operations
of the primary employer, but also the operations of any secondary
employers to the extent that the latter are affected by the conduct
involved. Further, in McAllister Transfer 5 the Board, adopting the
interpretation of the Jamestown rule by Member Peterson in the
Earl Vann case, has said that in secondary boycott situations it is the
entire business of the secondary employer at the location involved
that governs in applying the Board's jurisdictional standards. The
commerce facts given above disclose that the annual volumes of busi-
ness done by the secondary employers involved in this proceeding at
their Milwaukee terminals during 1952 and 1953 were in amounts
varying from $450,000 to over $1,200,000. Such amounts, when added
to the Company's business, clearly meet the Board's jurisdictional
standards, and we find that it will effectuate the policies of the Act
to assert jurisdiction over the Company in Case No. 13-CC-67.
The Company's conduct towards which the Union's charges are di-
rected in Case No. 13-CA-1285 occurred in August and November
1952 and was evoked by the Union's attempts to organize the Com-
pany's employees during the period of the events here in question. It
is this activity of the Union which we have found, as hereinafter set
forth, in part discloses the Union's labor dispute as being an organiza-
tional one with the Company. Essentially the same basic labor dis-
pute is substantially involved in both cases, and its significance to the
several issues is illuminated by the conduct of the parties as litigated
in each case. In these circumstances, we believe that equity and the
desirability of a full and complete record upon the issues as between
the parties require that we should consider the merits of the issues in
both of these consolidated cases .6 We further find, therefore, that it
will best effectuate the purposes of the Act to assert our jurisdiction in
,Case No. 13-CA-1285.
2. The Trial Examiner found that in August 1952, Lawrence J.
Reilly, the Company's manager , was approached by the Union's or-
ganizers , Kucera and Johannes, who were seeking to solicit member-
ships among the Company's employees. Reilly told them, in sub-
stance, that "his men could join the Union, but he would tell his men
that if they joined the Union he would sell out his trucks but three
and he and his two brothers would run these trucks or else he'd go out
,of business." On another occasion in November 1952, Union Organ-
izer Beaudoin followed Reilly, not knowing who he was, and sought to
sign him up in the Union. Reilly then identified himself as "the boss"
and said, among other things, that he would go out of business before
5 1nternational Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, General Drivers and Helpers Local No. 554, and Chauffeurs, Teamsters and Help-
ers Local No 608 , AFL (McAllister Transfer, Inc ), 110 NLRB 1769.
9 We note, inter alma, that none of the parties opposes the assertion of our jurisdiction
in either of these consolidated cases
REILLY CARTAGE COMPANY 1745
he would sign a contract with the Union. The two organizers named
above then joined Reilly and Beaudoin, and Reilly repeated the state-
ment in the presence of the three union representatives.
The Trial Examiner found the statements described above to be
violative of Section 8 (a) (1) of the Act. Unlike the Trial Examiner,
however, we do not believe that these remarks made to the union or-
ganizers should, under the circumstances of this case ,' be deemed to
be coercive , or otherwise violative of the rights which the Act guar-
antees to employees . We find that the Company did not thereby
violate Section 8 (a) (1) and shall dismiss the allegations of the com-
plaint against the Company.
3. As found by the Trial Examiner, Marie T. Reilly is the owner
of a number of trucks inherited from her deceased husband who, until
his death in September 1951, was engaged in the local cartage business
at Milwaukee, Wisconsin. Her son, Lawrence J. Reilly, is adminis-
trator of his father's estate and manager of the business . Until the
fall of 1952, the Company' s business consisted mostly in the pickup
and delivery of freight between various local businesses and the de-
pots of railroads and freight forwarders in Milwaukee . In the fall of
1952, the Chain Belt Company, which was one of the enterprises for
whom the Company had been hauling freight to the depots of railroad
and freight forwarders, decided that it would prefer to have a single
local hauler perform all its local hauling of freight in less-than-car-
load lots to the local terminals of over-the-road trucking companies,
and to that end suggested to the Respondent Company that it obtain
subcontracts from the various over-the-road motor carriers having
terminals in Milwaukee for this work.
The Company obtained 16 such subcontracts, the last being signed
on October 15, 1952.8 Thereafter, however, when the Company at-
tempted to haul Chain Belt freight to the terminals of these over-the-
road carriers, it met with refusals by the employees of the carriers, in
at least four instances, to handle such freight when the Company
brought it to the carrier's docks. Thus, as more fully set forth in the
Intermediate Report, such refusals occurred at the docks of Royal
Transit, Inc., on October 16, 1952, at Mercury Motorways, Inc., on Oc-
tober 17, 1952, and on January 28, 1953, and at Consolidated Forward-
ing Company on January 29, 1953.1 We agree with the Trial Examin-
er's conclusion , for the reasons set forth in the Intermediate Report,
7 See, e g., Everett Van Kleeck if Company, Inc, 88 NLRB 785 at 786, 798
B One of these, the subcontract with Interstate Dispatch, was later cancelled by the
carrier as the result of the Union's protest that it violated the provisions of the local
cartage agreement to which that carrier was a party
9 The Trial Examiner made no finding of a refusal to handle freight by employees of
Checker Express Company in an incident occurring at that Company's docks on November
6, 1952, in view of the fact that this incident did not involve the employees but only that
cam uer's dock fom eman, N%ho was a supervisor within the meaning of the Act
33820 7-55-vol 110-111
1746 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
that the Union induced and encouraged the employees of these over-
the-road carriers to engage in these concerted refusals to handle the
Company's freight.
The Union's contract with these carriers covering their local dock
,work and city pickup and delivery service contained the following
provision :
Article 4
The Employer agrees that in sub-contracting any work-or any
part' of it to either individual owners or other contractors, that
anyone sub-contracting such work must comply with the Articles
of this Agreement.
This contract also contained a provision requiring all employees, as a
condition of employment, to become and remain members of the Re-
spondent Union.1° The Trial Examiner found that by entering into
the subcontracts with the Company, a nonunion employer, the car-
"riers had violated article 4 of the contract, and that the sole object of
the Union's activities above described was to force the carriers to can-
cel these subcontracts. Thus the Trial Examiner reasoned that the
'dispute was between the over-the-road carriers on the one hand and
the Union which represented their employees on the other, and hence
'was a primary dispute. And as the activities in question occurred at
the docks of the primary employers-the over-the-road carriers-he
concluded that thus these activities were primary activities not pro-
scribed by Section 8 (b) (4) (A) and (B) of the Act.
We do not agree with the Trial Examiner's conclusion that the
Union's activities were primary 'activities not within the contempla-
tion of Section 8 (b) (4) (A) and (B).11 The Trial Examiner based
his conclusion that the Union's sole objective was cancellation of the
subcontracts largely on subsidiary findings in substance as follows :
That the Company had not experienced difficulties in making de-
liveries to over-the-road carriers until after the Company had ob-
tained the subcontracts; that the Union's policy, as expressed by its
business representative, Lemke, was not to have arguments with non-
union employers who brought freight to the docks "as long as they are
not sub-contracting"; that the Company, in hauling freight from
Chain Belt to the docks, was performing work that had formerly been
done by the carriers' union drivers-the type of loss of work which
article 4 of the local cartage agreement was designed to prevent; that
"Article I of the local cartage agreement provided in part as follows : "All present
and future employees of the employer , subject to the terms of this agreement , shall, as
a condition of employment , become and remain members of the union in good standing
not later than the 31st day following the beginning of employment , or the effective date
of this agreement , whichever is later."
11 See, for example , N. L R. B v. Denver Butilding and Constructtion Trades Council,
et at., 341 U. S 675
REILLY CARTAGE COMPANY 1747
the Union's officials, upon learning of the subcontracts, immediately
protested to Chain Belt and to the carriers, seeking to have them
cancelled; and that the carriers did not contest the Union's interpreta-
tion by resorting to arbitration under the contract.
We believe that these findings do not justify the conclusion that
the Union's sole objective was cancellation of the subcontracts. Thus
although it is true, as disclosed by the record, that the Company had
previously made, without incident, some deliveries to the docks of
over-the-road carriers, the record likewise clearly indicates that the
Company, before obtaining the subcontracts involved in this case,
had not engaged to any great extent in this type of operation. The
Company's manager, Lawrence J. Reilly, testified that the Company's
business had been that of a contract carrier, hauling for many of the
major industries in the city, as agent for all the railroads and freight
forwarders. He further testified that at the time of the events in this
case, the Company was doing the Chain Belt Company's regular haul-
ing of this type, and that when Chain Belt informed him that it desired
the Company also to do all its hauling of less-than-carload lots of
freight to the terminals of over-the-road motor carriers it suggested,
and he obtained, the subcontracts from the motor carriers to perform
this work. Thus obviously the Company previously did not have the
subcontracts from the motor carriers which were required to enable it
to engage regularly in hauling to the motor carriers' docks.12
Nor does the testimony of the Union's business representative,
Lemke, in fact disclose that the Union's policy was solely one of ob-
jection to existence of the subcontracts. Lemke's testimony appears
in the record as follows : "We have any number of non-Union trucks-
trucking companies who bring their freight to the dock and there
has never been an argument about it as long as they are not sub-con-
tracting, not in the cartage business or in the direct freight busi-
?less." 13 And Lemke further testified that although he had told the
carriers that they would be in violation of article 4 if they continued
to use an operator that did not live up to the terms of the local
cartage agreement, nevertheless he said that this position was only
"as far as management is concerned." He specifically refused to tes-
tify that lie had advised the union members that they had a right
under the local cartage agreement to refuse to handle the Company's
freight. Rather he testified that he had advised the members, over a
period of years, that they had such a right "any place where we had
any sort of dispute." The Union's president, Lane, also testified that
the employees were not advised that they had a right under their
'a These subcontracts (lid not provide for the hauling of any specific company's freight,
but simply set forth the general terms and conditions under which the Company might
engage in hauling to and from the motor carriers ' docks.
22 Emphasis supplied.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract to refuse to handle freight, because "it wasn't the contract
that could either permit them or not permit them to handle freight,
it was . . . their God-given rights."
There had long been ill-feeling between the Company and the
Union. This existed during the elder Reilly's earlier operation of the
business. And as recently as April 1952, union pickets had forced
the Company to cease its attempts to operate during a citywide strike
called by the Union. The record contains evidence that there was
sabotage and violence visited on the Company on some of these
earlier occasions. In August and November 1952, union representa-
tives made direct but unsuccessful efforts to organize the Company's
employees.14 From all the foregoing it is clear, we believe, that the
incidents involved in this case arose, not simply because of the execu-
tion of the subcontracts, but because the Company's business arrange-
ments with Chain Belt brought it to engage in a type of hauling in
which it had not previously been substantially engaged; that this
brought the Company directly into conflict with the Union, which
represented all or most of the employees engaged in such hauling; and
that the Union was motivated at least in substantial measure, in its
activities with which we are here concerned by an intent to pursue
its long-standing dispute with the Company as a nonunion employer.15
On all the record we conclude that the Union's activities in inducing
and encouraging the carriers' employees to refuse to handle the Com-
pany's freight were in pursuance of a secondary, rather than a pri-
mary, dispute within the meaning of Section 8 (b) (4) (A) and (B).16
The Trial Examiner further found, however, that even if the car-
riers be deemed the secondary employers and the Company the pri-
mary employer, and hence that the Union's activities here involved
are secondary, the Union's actions were nevertheless protected by the
presence of article 4 in the local cartage agreement, under what has
i* At the time of these events only one of the Company's employees was a member of the
Union.
Is Other subsidiary findings of the Trial Examiner above mentioned either largely sup-
port or do not essentially contradict this view Thus indeed the Company ' s hauling of
Chain Belt freight to the carriers ' docks constituted the performance by nonunion em-
ployees of work that otherwise would have been performed by union members And al-
though the carriers did not resort to arbitration when informed by the Union that the
local cartage agreement was being violated, at least two of those here involved expressed
willingness to accept the Company 's freight , though at the same time professing inability
to do anything about it.
16 The Union also seeks to rely on the "roving situs" doctrine of the Schultz case (In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
Truck Drivers and Chauffeurs , Local Union No 80 7 and Schultz Ref,igerated Service, Inc,
87 NLRB 502 ). That case is distinguishable because, apart from any consideration as to
whether the Company's trucks might have constituted the only location at which the
Union could resort to economic action , the Union 's activities here in any event were not
directed to the trucks but consisted of direct inducement and encouragement of the sec-
ondary employers ' employees to cease handling the primary employer ' s goods. As that
case is not apposite here, and it is hence unnecessary to affirm or reject the principles
enunciated therein, we reserve any statement of our position thereon
REILLY CARTAGE COMPANY 1749
become known as the Conway doctrine." A majority of the Board
likewise does not agree with this conclusion, Members Rodgers and
Beeson for the reason that they do not believe the doctrine of the
Conway case to be sound, and they would overrule it, as more fully
set forth in their opinion in the McAllister case,18 and Chairman
Farmer for the reason that he does not find the Conway doctrine ap-
plicable to the facts of this case, as more fully set forth in his separate
concurring opinion herein.19
In the light of the entire record in the case, we find that the Union
induced and encouraged the employees of the several over-the-road
motor carriers to engage in a concerted refusal in the course of their
employment to handle-freight brought by the Company to the carriers'
docks, with the object of forcing or requiring the carriers to cease
doing business with the Company, contrary to the provisions of Sec-
tion 8 (b) (4) (A) of the Act," and with the further object of forcing
or requiring the Company to recognize or bargain with the Union as
representative of the Company's employees, although the Union had
not been certified as such representative under the provisions of Sec-
tion 9, contrary to the provisions of Section 8 (b) (4) (B) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Union, set forth above, occurring
in connection with the operations of the Respondent Company and
the carriers described in the Intermediate Report, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes -burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondent Union violated Section 8 (b)
(4) (A) and (B) of the Act, as above set forth, we shall order it to
cease and desist from such conduct. We shall also order that the
Respondent Union take certain affirmative action designed to effectu-
ate the policies of the Act.
17 Rabouin, doing business as Conway's Express v. N. L. R. B., 195 F . 2d 906 (C. A. 2),
affg 87 NLRB 972. See also, Pittsburgh Plate Glass Company, 105 NLRB 740
is International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, General Drivers and Helpers Local No. 554, and Chauffeurs , Teamsters and
Helpers Local No. 608, APL (McAllister Transfer, Inc ), supra.
19 Members Rodgers and Beeson do not agree with the Chairman in his attempt to dis-
tinguish the facts of this case on the ground that the carriers ' conduct did not justify a
finding of consent to the Union's conduct For the reasons more fully stated by them in
McAllister, they deem this purported distinction irrelevant
21 The General Counsel has excepted to the Trial Examiner 's finding that it was not an
object of the Union's activity to force or require Lawrence J. Reilly, an employer, to join
the Union . As this was not alleged in the complaint and we have found that the Union
otherwise violated Section 8 (b) (4) (A), we find it unnecessary to pass upon this issue.
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Chauffeurs, Teamsters and Helpers "General" Local Union No.
200, AFL, is a labor organization within the meaning of Section 2 (5)
of the Act.
. 2. By inducing and encouraging employees of Royal Transit, Inc.,
Mercury Motorways, Inc., and Consolidated Forwarding Company to
engage in a strike or a concerted refusal in the course of their employ-
ment to handle freight brought to their employers' docks by Reilly
Cartage Company, where objects thereof are to force or require their
employers to cease doing business with Reilly Cartage Company and
to force or require Reilly Cartage Company to recognize or bargain
with the Respondent Union as the representative of its employees
although the Respondent Union was not certified as the representative
of such employees under the provisions of Section 9 of the Act, the
Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (4) (A) and (B) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Chauffeurs,
Teamsters and Helpers "General" Local Union No. 200, AFL, its
officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Inducing or encouraging the employees of Royal Transit, Inc.,
Mercury Motorways, Inc., and Consolidated Forwarding Company, or
any other employer (other than Reilly Cartage Company) to engage
in a strike or a concerted refusal in the course of their employment to
use, manufacture, process, transport, or otherwise handle or work on
any goods, articles, materials, or commodities or to perform any serv-
ices for their respective employers, where an object thereof is (1) to
force or require Royal Transit, Inc., Mercury Motorways, Inc., Con-
solidated Forwarding Company, or any other employer or person to
cease doing business with Reilly Cartage Company, or (2) to force or
require Reilly Cartage Company to recognize or bargain with the Re-
spondent Union as the representative of the employees of Reilly Cart-
age Company, unless and until the Board certifies the Respondent
Union as such representative in accordance with the provisions of Sec-
tion 9 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
REILLY CARTAGE COMPANY 1751
. (a) Post at its business offices and meeting halls in Milwaukee, Wis-
consin, copies of the notice attached hereto marked "Appendix." 21
Copies of such notice, to be furnished by the Regional Director of the
Thirteenth Region, shall, after being duly signed by an official repre-
sentative of the Respondent Union, be posted by the Respondent
Union immediately upon receipt thereof and maintained by, it for
sixty. (60) consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent Union to insure that
said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director of the Thirteenth Region in
writing, within ten (10) days from the date of this Order, as to what
steps the Respondent Union has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges that Marie T. Reilly d/b/a Reilly
Cartage Company, violated the Act.
CHAIRMAN FARMER, concurring :
I agree with the findings, conclusions, and order set forth in the
majority decision, including the finding that the Conway doctrine af-
fords no defense to the Respondent Union in this case. I would not,
however, as would my colleagues of the majority, overrule the Con-
way and Pittsburgh cases, as I find the doctrine there enunciated to
be inapplicable to the circumstances of the present case.
The charges against the Union in this case are bottomed upon pro-
visions of the Act which make it an unfair labor practice for a union
to induce or encourage employees of secondary employers (i. e., em-
ployers with whom the union is not directly engaged in a dispute)
to "engage in a strike or a concerted refusal in the course of their em-
ployment" to handle goods or perform services, where certain unlaw-
ful objects such as those manifest in this case are present. In the
Conway case,22 which was the first proceeding to come before the
Board involving a contractual provision of the type known as a "hot
cargo" clause, two of the employers concerned were parties to an
area warehouse agreement containing a provision to the following
effect :
The Union reserves the right to refuse to handle goods from any
firm or truck which is engaged in any controversy with this or any
other union.
Another of the employers was party to an area trucking agreement
containing the following provision :
21 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
a2 International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Local 294, AFL (Henry V. Rabouin, d/b/a Conway's Express), 87 NLRB 972.
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union reserves the right to refuse to accept the freight from,
or to make pick-ups from or deliveries to establishments where
picket lines, strikes, walkouts and lockouts exist.
There, as here, the union involved was charged with having induced
and encouraged employees to engage in a concerted refusal to handle
freight in furtherance of proscribed objectives. A Board majority,
however, with subsequent court approval,23 absolved the respondent
union of any statutory violation, finding that the secondary employ-
ers, by entering into contracts containing the "hot cargo" clause, had
thus consented in advance to boycott the primary employer. From
this there flowed the conclusion that the employees' failure or refusal
to handle freight was not in fact a "strike" or a "refusal to work"
within the meaning of the statute, and that, by its activity at the times
in question, the union did not "force or require" the employers to
participate in a secondary boycott. In the Pittsburgh case ,24 the sec-
ondary employer had entered into an agreement providing that it
should not be cause for discharge if the employees refused to handle
unfair goods. The Board in that case added the further rationale
that, by virtue of this contractual provision, the refusal of the sec-
ondary employer's employees to handle freight did not constitute a
refusal to perform work "in the course of employment" within the
meaning of the Act.
It is clear to me, however, that the contractual provision in the pres-
ent case is not the type of "hot cargo" clause with which the Board
was concerned in the cases mentioned.25 The provision is obviously
one through which the Union has sought to extend the range and
effectiveness of its union-shop contract, and to preclude its dilution or
circumvention through the transfer of work to employees of other
employers. But whatever may have been the purpose or intent of the
contractual provision here, it is nevertheless markedly different in
quite significant respects from those in the Conway and Pittsburgh
cases. Thus the terms of the provision in this case contain no reserva-
tion of any right to the Union whereby its members might refuse to
handle goods from an employer with whom the Union had a dispute.
Nor does the provision purport to immunize the employees, the
Union's members, against discharge in the event they refuse to per-
form any work normally regarded as within the scope of their em-
ployment. In short, the provision contains nothing suggesting any
xv See footnote 17, supra.
24 Ibid.
25 The provision in the present case-article 4 of the Milwaukee local cartage agree-
ment, has been sent forth in the text of the Decision, supra, but may be repeated here It
is as follows :
The Employer agrees that in sub-contracting any work or any part of it either to
individual owners or other contractors, that anyone sub-contracting such work must
comply with the Articles of this Agreement
REILLY CARTAGE COMPANY 1753
agreement on the employer's part to sanction self-help on the part of
the Union or its members.
Nor does the carriers' conduct at the time of the events here con-
cerned demonstrate consent to such conduct on the part of the Union.
True, as the Trial Examiner found, the carriers, when informed by
the Union that it regarded their subcontracts with the Company as
in violation of the local cartage agreement, did not resort to arbitra-
tion as provided in the contract. Nor did they attempt to discipline
their employees who refused to handle the Company's freight. But
either or both of these facts fall short of establishing that the car-
riers in fact consented to a resort to self-help by the Union as a means
either of enforcing the provisions of the contract or of pursuing its
dispute with the primary employer 26 And, in any event, as the
Conway and Pittsburgh cases were decided within the narrow frame
of reference to specific contractual provisions, they can afford little
justification for concluding that, absent a contractual provision spe-
cifically conveying the employer's consent to self-help by the Union,
such consent might nevertheless be inferred merely from the employ-
er's conduct. In my opinion, those decisions are not relevant to a
determination of the present case.
MEMBERS MURDOCK and PETERSON, dissenting :
We agree with the majority that jurisdiction should be asserted in
these cases.27 We also agree with the dismissal of the charges of viola-
tion of Section 8 (a) (1) against the Employer. We agree, however,
with the Trial Examiner that the Union's activities in this case were
clearly primary and therefore not proscribed by Section 8 (b) (4) (A)
and (B) of the Act. At the outset, before discussing the reasons for
our view, we think it should be noted that to a great extent our col-
leagues' difference with us in regard to this issue is one of fact and
not law. Thus, they do not gainsay that if the Union's activities were
primary it did not violate the Act, but rather disagree with the validity
of the Trial Examiner's factual bases for reaching his conclusion
that (a) the real targets of the Union's activities were the subcon-
tracts between the Company and the over-the-road carriers which
28 To the contrary , the record also discloses that the carriers , with but one exception,
did not cancel the subcontracts as the Union sought to have them do. And at least
two of the carriers involved in this case , after their employees had refused to handle the
Company's freight, informed Reilly that they were still willing to accept his freight, say-
ing simply that if their men refused to handle the freight they did not know what could
be done about it.
rr Member Murdock , for the reasons stated in his dissenting opinion in Breeding Trans-
fer Company, 110 NLRB 493 , would assert jurisdiction over Reilly in both the CA and
CC cases because of the latter's role as a link in the interstate transportation of goods.
Accordingly , Member Murdock does not find it necessary to resolve the question whether
or not the Jamestown ruling should be broadened to include the entire business of the
secondary employer at the location affected, or the problem dealt with in the last para-
graph of section 1 of the majority opinion.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violated article 4 of the latter's agreement with the Union and (b)
the Union's sole objective was to force the carriers to cancel thy; sub-
contracts. We shall therefore consider first the principal facts upon
which the Trial Examiner relies and the reasons which our colleagues
have given for disagreeing with him.
As pointed out by the Trial Examiner, despite the long-sta iding
antagonism between the Company and the Union, the Company had
never experienced any difficulty in making deliveries to any over-the-
road carrier prior to the time the last subcontract was signed. This
was consistent with business representative Lemke's description of
the Union's position toward nonunion firms generally : "We have
any number of nonunion trucking companies who bring their f -eight
to the dock and there has never been an argument about it as long as
they are not subcontracting. . . ." [Emphasis supplied.] We agree
with the Trial Examiner that the Union's policy was correctly stated
in this quotation.
Our majority colleagues say that while it is true that the Company
had made some deliveries to the docks of the over-the-road carriers
without incident before the subcontracts were obtained, the Corlpany
had not engaged to any great extent in this type of operation. We fail
to see why this detracts from the fact that the Company had difficulty
making deliveries to the over-the-road carriers only when it -lid so
under subcontracts which violated the Union's agreement wi,h the
carriers and thus the cause of such difficulty was the dispute bE tween
the Union and the carriers over the violations of the cartage agree-
ment, rather than any disagreement the Union might have had 1 with
the Company.
In response to our finding that the Union's conduct in this regard
was consistent with Lemke's description of its position toward non-
union firms generally, our majority colleagues refer to the faa, that:
(1) Lemke testified that "We have any number of nonunion trucking
companies who bring their freight to the dock and there has never
been an argument about it as long as they are not subcontracting, not
in the cartage business or in the direct freight business" [emphasis
added by the majority] ; and (2) the Union's president and Lemke
testified that they did not advise the members that they had right
under the cartage agreement to refuse to handle the Company's
freight. According to the majority, the foregoing shows tl at the
Union's policy was not solely one of objection to the existence of sub-
contracts. We do not agree that this evidence supports the majority's
conclusion nor do our colleagues explicate how it does.
Regarding (1), the only real difference between our quotation of
Lemke's testimony and that of the majority is the addition of the
REILLY CARTAGE COMPANY 1755
words in the latter's quotation-"not in the cartage business or in
the direct freight business." We do not think that these words alter
that testimony in any material respect or affect our reliance upon it.
In our opinion, the particular testimony involved need only be con-
sidered in its context in order to ascertain its precise meaning. Thus,
Lemke had been asked in the preceding portion of hi$ examination
specifically as to the Union's position with regard to the cartage agree-
ment and was responding here to a general question as to whether
the Union had any policy with respect to its members working with
nonunion employees of other employers that were not under union-
shop contracts. Viewing his answer in this posture, we think it clear
that all he was saying was that there are any number of nonunion
trucking companies either in the cartage business or in the direct
freight business which bring their freight to the dock and there has
never been an argument about it as long as they are not subcontract-
ing. We cannot conceive of any other plausible meaning which can
be given to this testimony, and we note that our colleagues have not
attempted to proffer one.
With respect to (2), our colleagues apparently would infer that,
since the Union's president and business agent stated that they had
not informed the members that the latter had a right under the cartage
agreement to refuse to handle Chain Belt freight delivered by the
Company, the employees' refusal was not only because of the Union's
dispute with the carriers over the cartage agreement violations, but
also was due to their Union's disagreement with the Company. We
cannot accept such an inference in light of other evidence which, in
our opinion, clearly shows that (a) the refusals were directly related
to, and caused by, the carriers' breach of the cartage agreement; and,
(b) the Company was affected thereby because it was a nonunion em-
ployer with whom the carriers had subcontracted rather than be-
cause of the coincidence that at some earlier date it had had a
disagreement with the Union. Thus, it is undisputed that the refusal
to handle Chain Belt freight of the Company occurred only after
the carriers' violation of the cartage agreement. Furthermore, a por-
tion of the evidence relied upon by the Trial Examiner for his finding
that the Union induced and encouraged the employees of the carriers
to engage in concerted refusals to handle Chain Belt freight tendered
by the Company-a finding with which the majority agrees-makes
it clear that although the employees may not have been specifically
informed by their president and business agent as to their rights under
the cartage agreement, they were so advised by other union officials.
For example, when members asked at union meetings whether they
should accept freight tendered by the Company, they were informed
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Ranney, secretary-treasurer of the Union, that they did not have
to handle such freight, and that if any employee was discharged for
refusing to handle cargo delivered by the Company, the Union would
process the matter under the grievance procedure of the cartage agree-
ment as a grievance on the discharged employee's behalf.
Finally, we think the October 16th incident referred to in de ;ail by
the Trial Examiner, but not mentioned by our colleagues, I ersua-
sively shows that the Union's activities were directed to the fa,,t that
Chain Belt cargo was being handled under the subcontracts in viola-
tion of the cartage agreement rather than the coincidental Lot that
the Company was hauling it. Thus, on October 16, when the driver
of the Company's truck arrived at the dock of one of the over-the-road
carriers, even though the Company's name appeared on its truck, he
was asked by the union steward whether the cargo was from 0ilgear,
cargo handled by the Company but not pursuant to any subcontract.
It was not until the driver admitted that the freight was from Chain
Belt, handled under subcontract, that the steward indicated that the
dockworkers would not unload the truck. It is apparent from this
incident that the Union's activities were not aimed indiscriminately at
all freight delivered by the Company, but only at freight hauled under
the subcontract with the carriers.
It is now a well-settled principle of law that Section 8 (b) ('f) (A)
and (B) of the Act is aimed at proscribing secondary and not p °imary
action?$ We believe that what is involved in this case is a p -imary
dispute between the Union and the over-the-road carriers. By enter-
ing into subcontracts with a nonunion employer-regardless of the
specific identity of that employer-the carriers violated the cartage
agreement . When the union officials learned of the subcontracts, they
set out to have them cancelled by notifying the carriers, the Union's
members, and the Company of their position. Because of tie car-
riers' breach of the cartage agreement their employees only refused to
handle Chain Belt goods delivered under subcontract with thol Com-
pany. We think it clear therefore that it was the failure of the over-
the-road carriers to cancel their subcontracts which precipitated the
Union's actions. In these circumstances, we would find that, as the
dispute was a primary one and the activities complained of occurred
at the docks of the primary employers-the over-the-road cairiers-
the Union did not violate Section 8 (b) (4) (A) and (B) of tie Act.
In view of the foregoing, it is unnecessary for us to pass upon the
Trial Examiner's views with respect to the applicability of the
Conway doctrine to this case.
23 See for example , N. L. R. B . v Denver Building and Construction - Trades Council,
at al, 341 U. S. 675 , Oil Workers International Union, Local Union 345 (CIO) (The Pure
Oil Company ), 84 NLRB 315, 318.
REILLY CARTAGE COMPANY 1757
Appendix
NOTICE TO ALL MEMBERS OF CHAUFFEURS, TEAMSTERS AND HELPERS
"GENERAL" LOCAL UNION No. 200, AFL; AND TO ALL EMPLOYEES
OF ROYAL TRANSIT, INC., MERCURY MOTORWAYS, INC., AND CONSOLI-
DATED FORWARDING COMPANY
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 induce or encourage any employees of Royal
Transit, Inc., Mercury Motorways, Inc., or Consolidated For-
warding Company, or any other employer (other than Reilly
Cartage Company), to engage in a strike or concerted refusal in
the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services for their
respective employers, where an object thereof is (1) to force or
require Royal Transit, Inc., Mercury Motorways, Inc., or Consol-
idated Forwarding Company, or any other employer or person
to cease doing business With Reilly Cartage Company, or (2) to
force or require Reilly Cartage Company to recognize or bargain
with Chauffeurs, Teamsters and Helpers Local Union No. 200,
AFL, as the collective-bargaining representative of employees
of Reilly Cartage Company, unless and until the National Labor
Relations Board certifies said labor organization as such repre-
sentative in accordance with the provisions of the National Labor
Relations Act, as amended.
CHAUFFEURS, TEAMSTERS AND HELPERS
"GENERAL" LOCAL UNION No. 200,
AFL,
Union.
Dated---------------- By-------------------------------------
(Agent or 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
Case No. 13-CA-1285 involves charges that Marie T. Reilly, d/b/a Reilly Cartage
Company, Milwaukee , Wisconsin , herein called the Company , has interfered with,
restrained , and coerced her employees in certain specified respects since August
1952. It is alleged that this conduct violated Section 8 ( a) (1) of the National
Labor Relations Act, as amended ( 61 Stat . 136), herein called the Act Case No.
13-CC-67 involves charges that Chauffeurs , Teamsters and Helpers "General" Local
Union No. 200 , AFL, herein called the Union , since October 1952 , has induced
and encouraged employees of certain other employers to engage in concerted re-
fusals to transport or handle goods of or to perform services for the Company,
with the object of (1) forcing or requiring these other employers to cease doing
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business with the Company, and (2) forcing or requiring the Company to recognize
the Union as the collective-bargaining representative of her employees, althcugh the
Union had not been certified as the representative of these employees. It is alleged
that this conduct violated Section 8 (b) (4) (A) and (B) of the Act. TI e cases
have been consolidated. After the issuance of a consolidated complaint by the
General Counsel and the filing of answers by each of the Respondents,' a hearing
was held before the duly designated Trial Examiner on June 29 and 30, 953, at
Milwaukee. Wisconsin. All parties were represented and participated full,' in the
hearing. The General Counsel and each of the Respondents filed briefs, which
have peen duly considered.,'
Upon the entire record in these cases , I make the following:
FINDINGS OF FACT
There is no dispute, and I find, that (1) the Company is engaged in ccmmerce
within the meaning of the Act, 3 (2) Mercury Motorways, Inc., herein called Mer-
cury, Royal Transit, Inc., herein called Royal; Checker Express Compan), herein
called Checker, and Consolidated Forwarding Company, herein called Consolidated,
are each engaged in commerce within the meaning of the Act; 4 and (3) the Union
is a labor organization within the meaning of the Act. The only disputed issues
are (1) whether the Company interfered with, coerced, or restrained her er lployees
in certain specified respects, and (2) whether the Union induced or encouraged
employees of Mercury, Royal, Checker, and Consolidated to engage in c3ncerted
refusals to transport or handle freight delivered by the Company, with tho objects
described in the complaint.
1. THE CASE AGAINST THE COMPANY
A. Statements by Reilly to employees
Lawrence J. Reilly 5 was, at all material times, manager for the Company. Part
of the time he drove one of the Company's trucks. The complaint alleges and the
Company's answer denies that in October or November 1952, Reilly threatiined em-
ployees of the Company that the Company would go out of business before signing
a contract with the Union, and that if the employees joined the Union there would
be no jobs for them with the Company. At the close of the General Coun; el's case,
the Company moved to dismiss this part of the complaint on the grounds t iat there
IThe designation General Counsel is intended to include the General Counsel of the Na-
tional Labor Relations Board and his representative at the hearing The Compary and the
Union are sometimes referred to jointly as the Respondents
3 After the time for filing briefs had expired, the Union submitted a document which
was, in effect, a reply brief. The Company then submitted a document whit i was, in
effect, a reply to the Union's reply brief Both documents were selected as untimely filed.
Neither document has been considered National Labor Relations Board Rules Ind Regu-
ations , Series 6 as amended, Section 102 42 and 102.46
3 The Company is engaged in the cartage business in Milwaukee, Wisconsin, and oper-
ates under a certificate granted by the Interstate Commerce Commission. During all ma-
terial times, she rendered services amounting in value to in excess of $50,000 a inually to
various firms, each of which transports out of the State of Wisconsin goods : mounting
in value to in excess of $25,000 annually
4 Mercury, Royal, Checker, and Consolidated are trucking companies doing business in
Wisconsin. Mercury operates under a permit from the Interstate Commerce C>mnussion
and has a home office in South Bend, Indiana, and a local office in Milwaukee Mercury's
Milwaukee branch transports goods to and from various points in Ohio, Michigan, and
Indiana, and its annual receipts total over $100,000
Royal operates under a permit fioni the Interstate Commerce Commission Ind has a
home office in Milwaukee and terminals elsewhere in Wisconsin and in Illinois . Royal's
Milwaukee office transports goods to and from various points in Illinois . Roy. 1's annual
receipts total approximately $1,800,000, of which about 70 percent involves the Milwaukee
office
Chedker operates terminals in Milwaukee, Wisconsin, and Chicago, Illinois , Ind trans-
ports goods between these two cities. It also handles shipments for points beyond Chicago
in conjunction with a connecting carrier Checker does approximately $1,000 000 worth
of business annually, in all of which the Milwaukee terminal is involved
Lawrence J Reilly is a son of Marie T. Reilly, sole owner of the Compan3 He will
he referred to herein simply as Reilly.
REILLY CARTAGE COMPANY 1759
was no evidence that Reilly had threatened any employees that the Company would
go out of business if they joined the Union, and further that even if such a threat
had been made it was made more than 6 months prior to the service of the charge
against the Company. Ruling on the motion was reserved.
To support this allegation of the complaint, the General Counsel produced as a
witness Robert E. Windle, a truckdriver employed by the Company. Windle testi-
fied that Reilly stated to him that he (Reilly) would not contribute to the Union in
order to drive his own trucks, but that if the men wanted to join the Union that was
their privilege. Windle further testified that, although Reilly never told him that he
would not sign a contract with the Union if the men joined, Windle received that
impression from Reilly after hearing Reilly state that he personally would not join
the Union. Windle at first placed this conversation as having occurred in the fall
or summer of 1952, but later identified it as having taken place late in April 1952.
The General Counsel also produced several witnesses who testified that Windle
had told them that Reilly had stated to him in the fall of 1952 that he would sell
the Company's trucks before he would sign a contract with the Union. The testi-
mony of these witnesses, while casting doubt upon the accuracy of Windle's testi-
mony, does not itself constitute affirmative evidence that Reilly made any threats
to Windle. Reilly did not testify regarding any conversation with Windle. Ac-
cordingly, based upon Windle's testimony, I find that Reilly stated to Windle that he
would not contribute to the Union to drive his own trucks but that if the men wanted
to join the Union that was their privilege. Thus, Reilly's remark to Windle was lim-
ited to his own refusal to join the Union-an action which he had the legal right
to take. The fact that Windle thereupon assumed that the Company would not
sign any contract with the Union under any circumstances-an action which might
well have been illegal-is immaterial, because it is not an inference which could
reasonably be drawn from the remark actually made by Reilly. Accordingly, I find
that the General Counsel has failed to prove by a preponderance of the evidence
that Reilly threatened Windle that the Company would either reduce her working
force or go entirely out of business rather than sign a contract with the Unions The
Company's motion to dismiss this portion of the complaint is therefore granted.
B. Statements by Reilly to union representatives
The complaint further alleges, and the Company's answer denies, that in August
and September 1952 and again on November 5, 1952, Reilly stated to representatives
of the Union that even if a majority of the employees of the Company joined the
Union, the Company would not bargain with the Union but would sell her trucks
rather than recognize the Union. At the close of the General Counsel's case, the
Company moved to dismiss this portion of the complaint on the ground that, even
if proved, coercive statements made to union representatives where no employees
were present are not violative of the Act. Ruling on this motion was reserved.
In August 1952, Henry Kucera and Clarence Johannes, then organizers for the
Union, approached Reilly with regard to soliciting the employees for membership
in the Union. Reilly told them that he had nothing against them personally, but
expressed some antiunion sentiments. Reilly further stated to Kucera and Johannes
that he would tell the Company's employees that if they joined the Union the Com-
pany would either go out of business or would sell a number of her trucks, and the
remaining trucks would be driven by Reilly and his brothers.
In November 1952, Thomas Beaudoin, an organizer for the Union, asked Reilly
if he would be interested in joining the Union. When Reilly replied that he would
not be interested, Beaudoin asked him whether he would sign a contract with the
Union if the employees of the Company joined the Union. Reilly answered that
the Company would go out of business before she would sign a contract with the
Union. At this point, Kucera and Johannes joined the conversation and Reilly
again stated that he would never sign any contract with the Union, but would go out
of business first.?
6 The charges against the Company herein were served upon the Company on Novem-
ber 14, 1952, and no finding of unfair labor practice by the Company can be pred•cated
upon conduct occuriing before May 14, 1952 In view of my finding that Reilly's state-
ment to Windle was not violative of the Act, I deem it unnecessary to determine whether
this remark was made before or after May 14, 1952.
7 The findings of fact regaiding these two conversations are based upon the credited
testimony of Kucera, Johannes, and Beaudoin Reilly did not testify with respect to
these conversations
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not appear that the substance of these conversations was ever reported to
any employee of the Company . During the period covered by these convey : ations,
only one of the Company 's employees was a union member.
The facts related above demonstrate, and I find, that Reilly made statem ants to
union representatives indicating an anticipatory refusal to bargain ,8 and containing
threats of economic reprisal for concerted activities . However , these stat,-ments
were not made in the presence of any employee of the Compan)f, nor is there any
proof that they were ever communicated to any employee. The question their arises
whether such statements, made to representatives of the Union and not cor imuni-
cated to any employee, constitute restraint, interference, or coercion of the em-
ployees' rights. The Board has had this issue before it several times. In four
cases, coercive statements made to union representatives not in the presence of
employes were not held to be violative of the Act.9 But in four other cases such
conduct was found to be proscribed, the Board reasoning in one case that the
statements "were of a character normally to be calculated to reach the em )loyees
and to discourage them from joining or assisting the Union," and in another that the
statements were "very likely to be relayed to the employees whom [the union agent]
represents." 10 I consider the most recent pronouncement of the Board, the IVEAM
decision, binding upon me, especially as it has been enforced by a court of appeals.
Unless the WEAM case and the other three cases in substantial agreement with it
can be distinguished from the instant case, they are dispositive of the issue herein.
It is true that here the Union did not represent a majority of the Company's
employees-in fact, it had only one member among them. However, a c )ercive
statement made to a single employee is sufficient to constitute a violation of the
Act.ll Hence, under the Board's reasoning, it is sufficient if the statements were
likely to be relayed to a single employee, and the fact that the Union did not re )resent
a majority of the Company's employees is immaterial. I conclude that ieilly's
statements to Kucera and Johannes in August 1952 and to Beaudoin, Kuce •a, and
Johannes in November 1952 violated Section 8 (a) (1) of the Act.
The Company's brief states: "Reilly's attitude toward the Union has been affected
by the fact that he has had light bulbs full of paint thrown through the winc ows of
his home, sand and gravel put in the motors of the Company's trucks, tire:; punc-
tured and other acts of violence committed against his property and person.' Such
violence is highly regrettable, and cannot be condoned. But it does not license the
Company, by way of retaliation, to violate the Act. For the foregoing reasc ns, the
Company's motion to dismiss this portion of the complaint is denied.
11. THE CASE AGAINST THE UNION
A. Sequence of events
During all material times, the Company employed four truckdrivers,12 of whom
only one was a union member. For some years, there has been considerable friction
between the Company and her predecessor on one hand and the Union on thy; other.
The Company has never had any contractual relations with the Union.
During all material times the Union had in effect contracts with various over-
the-road carriers, including Mercury, Royal, Checker, and Consolidated, known as
the Milwaukee local cartage agreement, which provided in part as follows:
ARTICLE 1
The employer agrees to apply to the union whenever additional drivers,
chauffeurs, helpers, dockmen or warehousemen are needed for either •egular,
substitute or extra work. The Union shall, whenever possible, furnis i expe-
rienced workers upon request. In the furnishing of such workers, unio,i mem-
8 Augusta Bedding Company, 93 NLRB 211, 212
ON & W Oi,erall Compai>ny, Incorporated, 51 NLRB 1016, Maurice Eanet, et ai , d/b/a
Parkside Hotel, 74 NLRB 809, footnote 4, enf denied 179 F. 2d 15 (C. A , D C ) , M
Snower if Company, Division of Opelika Textile Mills, Inc, 83 NLRB 290, 291; and Everett
Van Kleeck and Company, Inc, 88 NLRB 785, footnote 4, enfd. 189 F. 2d 516 (C.. A. 2).
10 The Federbush Co., Inc., 34 NLRB 539, 547-8; Samuel Rosenblatt , d/b/a Rosonblatt's
Friendly Mountain Line, 56 NLRB 769; Pure Oil Company (Illinois Producing D:vi8ion),
90 NLRB 1661, 1662; and Arlington-Fairfax Broadcasting Company, Inc. ( Radio Station
WEAM), 95 NLRB 846, 848, 856, enfd. 204 F. 2d 128 (C A. 4)
11 American Machine if Foundry Company, 14 NLRB 497, 507.
12 This figure excludes three sons of Marie T. Reilly, who are not employee' within
the meaning of Section 2 (3) of the Act.
REILLY CARTAGE COMPANY 1761
hers shall not be given any preference over non-union workers and the union
shall accept applications from non-union as well as union workers and both
union and non-union members shall be given equal job opportunities. In case
the union is unable to supply such workers, the employer may obtain drivers,
chauffeurs, helpers, dockmen or warehousemen from any other available source.
All present and future employees of the employer, subject to the terms of this
agreement, shall, as a condition of employment, become and remain members
of the union in good standing not later than the 31st day following the begin-
ning of employment, or the effective date of this agreement, whichever is later.
The employer agrees that he will not keep in his employment any employee
who does not maintain his membership in the union in good standing.
ARTICLE 4
The Employer agrees that in sub-contracting any work or any part of it
to either individual owners or other contractors, that anyone sub-contracting
such work must comply with the Articles of this Agreement.
In accordance with this agreement, all employees of Mercury, Royal, Checker,
and Consolidated were members of the Union.13
For a number of years, the Company had hauled freight for Chain Belt Company,
herein called Chain Belt, from Chain Belt's plant to the local depots of railroads
and freight forwarders. In the fall of 1952, Chain Belt asked the Company to
perform all local hauling for Chain Belt to over-the-road truckers, and therefore
suggested that the Company solicit subcontracts from the over-the-road carriers.
Accordingly, Reilly secured contracts with 16 over-the-road carriers, including
Mercury, Royal, Checker, and Consolidated, which provided for the subcontracting
of Chain Belt's freight.14 Under these contracts, the over-the-road carriers agreed
to pay Reilly for hauling freight from the shipper's place of business to the carriers'
docks. The last of these subcontracts was signed on October 15, 1952.
Officials of the Union soon obtained knowledge of these subcontracts. Roy C.
Lane, president of the Union, informed an official of Chain Belt that the subcon-
tracts between Reilly and the over-the-road carriers constituted a violation of the
Milwaukee local cartage agreement, and that Chain Belt was letting the over-the-
road carriers in for trouble if the practice were continued. However, it does not
appear that Chain Belt (which was not a signatory of that agreement) took any
action after receiving this communication from the Union. Frank H. Ranney,
secretary-treasurer of the Union, then instructed representatives of the Union to
inform Mercury, Royal, Checker, Consolidated, and the other over-the-road carriers
that, in the Union's opinion, their subcontracts with Reilly violated article 4 of the
Milwaukee local cartage agreement. On October 22, 1952, Interstate Dispatch, an
over-the-road carrier, cancelled its subcontract with Reilly effective November 22,
on the ground that it conflicted with the Milwaukee local cartage agreement, of
which it was a signatory. The other 15 subcontracts have never been cancelled.
On October 16, 1952, the day after the last of the subcontracts was signed,
Reilly picked up a load of freight at Chain Belt, part of which was to be delivered
to Royal. As Reilly drove his semitrailer into the Royal dock, present on that dock
were Fred (or Fritz) Flegler, a truckdriver employed by Royal and a union steward
there, Albert Berg and Joseph S. Nowaczyk, dock foremen employed by Royal, and
a number of Royal's dockworkers. Berg, Nowaczyk, and the dock employees were
all members of the Union. Flegler approached Reilly's semitrailer and inquired
whether the freight was from Oilgear. Reilly replied that the freight was from
"These over-the-road carriers also had a contract with the Union limited only to over-
the-road operations This contract, known as the central States area over-the-road motor
freight agreement, contained the following provision • "It shall not be a violation of this
contract and it shall not be cause for discharge if any employee or employees refuse . . .
to handle unfair goods . . The term `unfair goods' as used in this article includes, but
is not limited to, any goods or equipment transported . . by any carrier . . . at whose
terminal or teiminals or place or places of business there is a controversy between such
carrier or its employees on the one hand, and a labor union on the other hand. . . .
This is the identical contract provision which was before the Board in Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union No. 135 (Pittsburgh Plate Glass Company),
105 NLRB 740
14 These contracts purport on their faces to be the obligations of Reilly as an individual
However, it is clear and I find that, in executing these contracts, Reilly was acting as agent
for his undisclosed principal, namely, the Company.
338207-55-v of 110-112
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chain Belt. Thereupon, Flegler told Reilly: "No dice." When Nowaczyk realized
that it was the Company's truck, and when Flegler started to argue witt Reilly,
Nowaczyk walked away and did other work. Berg told Flegler to unload tie semi-
trailer. Within the hearing of the other dock employees, Flegler hollerod: "No
Reilly, we will not unload Reilly." As Flegler was the union steward and had
refused to unload the semitrailer, Berg was convinced that it would be useless to
ask any other dock employee to unload it, and therefore did not do so. Jnstead,
Berg told Reilly that as far as he personally was concerned, he had no objection
to unloading Reilly's freight, but that Flegler said no, "and that's it." 15 Reilly then
went into Royal's office and told Walter Maile, secretary-treasurer of Royal, what
had happened on the dock. Maile stated that he would be willing to accept any
freight delivered by the Company, but if the men refused to handle it, he did not
know what could be done about it. Reilly then returned the freight to Chain Belt.
No member of Royal's management had instructed Berg not to unload Reilly's
freight, nor did Royal discipline either Berg or Flegler for his conduct in this respect.
On one occasion after the incident referred to above, Reilly delivered freight to
Royal and it was accepted without question. On that occasion, Flegler was not
present but Berg was.
On the next day, October 17, one of the Company's trailers arrived at the Mercury
dock with a load of freight from Chain Belt. The dockworkers at Mercury began
unloading it in the presence of Richard Riggs, a dock foreman for Mercury. Part of
the cargo had been removed from the trailer and placed on the Mercury dock. At
this point, Ted Karczeski (or Druczinski), Mercury's dispatcher who was not a
member of the Union, asked the driver if he were a member of the Union. The
-driver did not reply. The Mercury dockworkers who were unloading the trailer
then discussed whether or not they were going to continue to do so because the driver
was not a member of the Union. They sought the advice of Karczeski, but he re-
quested to be left out of it, saying it was not up to him to make any decision, and
suggesting that they call some union official. Riggs then placed a telephone call to
Arthur Lemke, the Union's business representative. Riggs explained that the men
were refusing to handle the Company's freight and asked Lemke what should be
done. Lemke replied that the men had a right to refuse to handle the Company's
freight, and that if they did not care to do so that was their prerogative. Lemke
further stated to Riggs that he thought Mercury was violating the subcontracting
clause in the Milwaukee local cartage agreement by subcontracting with the Com-
pany. Following this telephone conversation, the freight which had been unloaded
onto Mercury's dock from the Company's truck was reloaded onto the trailer, and the
driver took it to Consolidated where it was accepted without trouble. None of the
employees who took part in this incident were subjected to any discipline by Mer-
cury's management. Several days later, Edward J. Kumbera, terminal manager for
Mercury, received a telephone call from Lane, in which Lane advised Kumbera that
the Union considered Mercury in violation of article 4 of the Milwaukee local
cartage agreement, which required all subcontracting to be done by union members.
On November 6, 1952, Reilly delivered some freight from Chain Belt to Checker.
Reilly handed his bills of lading to Daniel Iserman, Checker's dock foreman. Iser-
man asked Reilly if he had a union card and Reilly replied that he did not. Iserman
then told Reilly that he could not handle the freight.16 Reilly then reported what
had occurred to Richard A. Rebholz, Checker's sales and traffic manager . Rebholz
replied ' that, although Checker was anxious for the Company's business and the
business of Chain Belt, if the men refused to handle the freight, he did not know
what could be done about it. Reilly then returned the cargo to Chain Belt. Iserman
had not received any orders from the Checker management not to accept freight
tendered by the Company, nor was he disciplined for refusing to handle it.
For about 2 months after this incident, the Company made no further efforts to
deliver Chain Belt freight to over-the-road carriers. On November 13, 1952, the
Union filed the charges herein against the Company. On January 27, 1953, the
Company resumed attempts to deliver Chain Belt freight to over-the-road carriers.
On that date, the Company delivered Chain Belt cargo to Consolidated without
difficulty.
ii Reilly testified that Berg stated to him that union officials had been at the dock the
previous day and Berg was afraid they would take his union card away and he would lose
his job if he unloaded Reilly's freight . Berg denied making such a statement to Reilly
I deem it unnecessary to resolve this conflict.
ii Reilly testified that, when Iserman returned his bills of lading, Iserman said that he
had orders from the Union not to accept any freight tendered by the Company . Iserman
denied having made such a statement to Reilly. I deem it unnecessary to resolve this
conflict.
REILLY CARTAGE COMPANY 1763
On January 28, 1953, Reilly went to the Mercury dock with some freight from
Chain Belt. Karczeski, Mercury's dispatcher, asked Reilly if he had joined the
Union. When Reilly replied in the negative, Karczeski walked into the dispatcher's
office. A few minutes later, he returned and stated to Reilly that he would not
handle the Company's freight. Reilly then complained to Kumbera. Kumbera tele-
phoned to Lemke about the matter, and was told by Lemke that if the men did not
want to unload the Company's freight, Kumbera could not force them to do so.
Kumbera then told Reilly that as far as Mercury was concerned it was ready and
willing to accept freight tendered by the Company, but if the men refused to handle
it he did not know what could be done. As Reilly was about to leave, Frank Poja,
a truckdriver employed by Mercury and a steward for union employees there, was
told by Kumbera that Reilly was there and wanted to have his semitrailer unloaded.
Poja, who had not been present until that time, replied that he would not unload the
semitrailer because Reilly did not belong to the Union. Poja told Reilly that "It
would be better for you to join the Union" and that he had been discussed "around
the union hall by members." Reilly then took the freight to another carrier, which
accepted it. It does not appear that either Karczeski or Poja was disciplined by
Mercury for his refusal to unload Reilly's truck.
On the following day, January 29, Reilly went to the Consolidated dock with
freight from Chain Belt. Elmer Heim, the Union's steward at Consolidated, was
not present on the dock at that time. Reilly's bills of lading were given to Walter
John Augustine, a checker employed by Consolidated and a member of the Union.
Augustine called a conference of the dock employees present on the dock. After
the conference, the dockworkers walked over to the semitrailer and Augustine told
Reilly that they would accept the freight, but would not go onto the semitrailer to
unload it. This was contrary to the custom in the industry, whereby dock employees
assist in unloading freight from the carrier unit onto the dock. Reilly then com-
plained about the matter to Walter Corner, terminal manager for Consolidated.
Corner telephoned the Company's attorney and explained that the shipments were
not being refused by Consolidated, but that the men would take the shipment if the
freight were brought to the tailgate of the semitrailer. Corner then called Lane,
who stated that neither he nor Corner could order Consolidated's men to go onto
the semitrailer to take the freight off, but that if the cargo were placed on the
dock the men would have to handle it. Lane further advised Corner that, in the
Union's opinion , Consolidated's subcontract with Reilly was in violation of the
Milwaukee local cartage agreement. Following these telephone conversations, Reilly
personally unloaded the shipment from the semitrailer onto the dock, and Consoli-
dated's dock employees handled it from there on. It does not appear that Augustine
or any other dockworker was disciplined by Consolidated for his conduct in this
respect.
After this incident, the Company again abandoned attempts to deliver Chain Belt
freight to over-the-road carriers. On February 24, 1953, the Company filed the
instant charges against the Union. Thereafter, on June 10, 1953, the United States
District Court for the Eastern District of Wisconsin enjoned the Union, pending
final adjudication of the instant case by the Board, from inducing or encouraging
employees of Mercury, Royal, Checker, or Consolidated to engage in a concerted
refusal to handle goods with the object of (1) forcing any of the over-the-road
carriers to cease doing business with the Company and (2) forcing the Company
to recognize the Union as collective-bargaining agent for her employees, unless the
Union was certified as such by the Board.17 Since the date of this injunction, the
Company has delivered Chain Belt cargo to over-the-road carriers without difficulty.
B Contentions and conclusions regarding violation of Section 8 (b) (4) (A)
1. The inducement and encouragement
The portion of Section 8 of the Act here pertinent reads as follows:
(b) It shall be an unfair labor practice for a labor organization or its agents-
( * 4 * * * *
(4) To engage in, or to induce or encourage the employees of any employer
to engage in, a strike or concerted refusal in the course of their employment to
use, manufacture, process, transport, or otherwise handle or work on any goods,
ss Madden v Chauffeurs. Teamsters and Helpers "General" Local Union No. $00, etc.,
Civil Action No. 5948 The record of the hearing in that action, which took place before
Judge Robert E Tehan on May 18 and June 3 and 4, 1953, was introduced into evidence
in the instant case by stipulation of the parties.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
articles, materials, or commodities or to perform any services, where an object
thereof is: (A) forcing or requiring any employer or self-employed person to
join any labor or employer organization or any employer or other persons to
cease using, selling, handling, transporting, or otherwise dealing in the products
of any other producer, processor, or manufacturer, or to cease doing business
with any other person; (B) forcing or requiring any other employer to recog-
nize or bargain with a labor organization as the representative of his employees
unless such labor organization has been certified as the representative of such
employees under the provisions of section 9,
The complaint alleges and the Union's answer denies that the Union engaged
in and induced and encouraged employees of the over-the-road carriers to engage
in concerted refusals to handle freight tendered by the Company. The General
Counsel and the Company maintain that the incidents related above and additional
facts described below demonstrate that the Union instructed its members employed
by over-the-road carriers not to handle cargo delivered by the Company. The
Union, conversely, argues that the carriers' dockworkers did so independently and
on their own.
In addition to the events described above, the General Counsel and the Company
point to a meeting which took place at Consolidated's dock in the fall of 1952. This
meeting was attended by Lane, a business representative for the Union named
Tucker, and dockworkers in Consolidated's employ While the testimony as to
exactly what occurred is somewhat confused, it is clear and I find that when Lane
and Tucker were asked by the dockworkers if they would have to handle freight
delivered by the Company, the union officials replied that the men did not have to
unload the Company's trucks if they did not want to, that it was their prerogative
not to do so.18 Similar advice was given to union members by Ranney during
general membership meetings at the union hall. Ranney denied that any official
of the Union had given instructions to the members with respect to the handling or
not handling of freight tendered by the Company. He admitted, however, that when
members asked whether or not they should accept cargo delivered by the Company,
he advised them that they did not have to accept such freight if they did not want to.
He further advised the members that if any employee were discharged for refusing
to handle freight tendered by the Company, the Union would process the matter as
a grievance on the discharged employee's behalf.
The Supreme Court of the United States, in interpreting the language of Section
8 (b) (4) (A) of the.Act, held that: "The words `induce and encourage' are broad
enough to include in them every form of influence and persuasion." 19 In view of
(a) Flegler's strike call at Royal's dock on October 16, when he hollered within the
hearing of rank-and-file employees: "No Reilly, we will not unload Reilly"; 20 (b)
the advice given Consolidated's employees by Lane and Tucker at Consolidated's
dock in the fall of 1952, that they did not have to unload the Company's trucks
if they did not want to, 21 (c) the similar advice given union members by Ranney
at union meetings; (d) the telephone conversations between Kumbera and Lemke on
18 The testimony of two union members who attended this meeting indicated that dur-
ing the meeting Lane instructed or directed the dockworkers to refuse to unload any
trucks operated by the Company Lane flatly denied having done so Tucker was ill and
unable to testify. I credit Lane's denial in this respect
19International Brotherhood of Electrical Workers, Local 501, A F. of L, et at v
N L R B , 341 U. S 694, at pages 701-2
20 Under the circumstances, the action of the steward binds the Union. LeBaron v
Food Processors, Packeis, Warehousemen and Clerical Employees, Local No. 547, at at ,
32 LRRM 2284 (S D Cal ) ; Chauffeurs, Teamsters, Warehousemen and Helpers Local
Union No. 135 (Pittsburgh Plate Glass Company), supra, Washington-Oregon Shingle
Weavers' District Council (Sound Shingle Co ), 101 NLRB 1109, and Local 760. Inter-
national Brotherhood of Electrical Workers, A. F of L (Roane-Anderson Company), 82
NLRB 696
21 Denver Building and Construction Trades Council (The Grauman Co ), 87 NLRB 755,
enfd. 193 F. 2d 421 (C A 10) , Local 760, International Brotherhood of Electrical Work-
ers (Roane-Anderson Co.), supra, at page 711; Joliet ContiaGtors Association, et at v
N. L. R B., 202 F 2d 606 (C A. 7) , International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America, Subordinate Lodge, No 92, et at (Richfiel(t Oil
Corporation), 95 NLRB 1191, 1193 and Chauffeurs, Team.ste) s, Warehoitenien and Help-
ers Local Union No 135 (Pittsburgh Plate Glass Company), supra Spokane Building and
Construction Trades Council (Kimsey Manufacturing Company), 89 NLRB 1168, cited by
the Union, is clearly distinguishable on its facts
REILLY CARTAGE COMPANY 1765
January 28, and between Corner and Lane on January 29; 22 and (e) the refusals
of dockworkers to handle freight delivered by the Company at Royal on October
16, at Mercury on October 17 and January 28, and at Consolidated on January 29; 23
1 find that since October 16, 1952, the Union has engaged in, and has induced
and encouraged the employees of Mercury, Royal, and Cosolidated to engage in,
concerted refusals to handle Chain Belt freight tendered by the Company.
2. The object of the inducement and encouragement
I turn now to an examination of the object of the Union's action. In this connec-
tion, a number of factors must be considered.
a. Despite the long-standing antagonism between the Company and the Union,
the Company had never experienced any difficulty making deliveries to any over-
the-road carrier prior to October 15, 1952, when the last subcontract was signed.
For example, Reilly testified that he had made deliveries to Royal for a week and a
half prior to October 16, 1952, without difficulty; Augustine testified that he had
handled freight delivered by the Company to Consolidated about a year prior to
January 29, 1953; and Robert James Reilly, a driver for the Company, testified
that prior to October 17, 1952, he made deliveries to Consolidated and Royal, and
that neither of these companies had refused to accept the freight. This is consistent
with Lemke's description of the Union's position toward nonunion firms generally:
"We have any number of nonunion trucking companies who bring their freight to
the dock and there has never been an argument about it as long as they are not sub-
contracting." I find that the Union's policy was correctly stated in this quotation
from Lemke's testimony.24
b. Before the execution of the subcontracts, the over-the-road carriers had been
transporting Chain Belt's freight from Chain Belt's plant to their own docks in their
own trucks. After the subcontracts were signed, the Company hauled Chain Belt's
cargo from Chain Belt's plant to the docks of the various over-the-road carriers in the
Company's trucks. Thus, work which had previously been done by union drivers
was thereafter performed by the Company's predominantly nonunion drivers. This
would appear to be the very type of loss of work which article 4 of the Milwaukee
local cartage agreement was designed to prevent. In any event, as the Company was
not a signatory to the Milwaukee local cartage agreement and had nonunion drivers
in its employ, it is clear and I find that, by entering into subcontracts with the Com-
pany, the over-the-road carriers violated article 4 of the Milwaukee local cartage
agreement.
c. When officials of the Union learned of the subcontracts, they set out to have
them cancelled. They first contacted Chain Belt on the matter but apparently with-
out the desired effect. They then made known to the 16 subcontracting over-the-
road carriers , the Union's members, and the Company, their position that the sub-
=In the context in which they were spoken, the statements made by Lane and Lemke
during these telephone conversations constitute probative evidence of the existence of the
Union's participation in the refusal of the employees to handle freight tendered by the
Company. Chauffeurs, Teamster 8, Warehousemen and Helpers Local Union No. 135 (Pitts-
burgh Plate Glass Company), supra, at footnote 3
zi The incident at Checker on November 6 involved only a refusal by Iserman, a dock
foreman The Union maintains that Iserman was a supervisor within the meaning of
the Act, and that union pressure on him did not violate the Act The General Counsel and
the Company, conversely, argue that lie was not a supervisor. As Iserman had author-
ity effectively to recommend the hiring and discharge of employees working under him,
I find that lie was a supervisor. The incident at Checker on November 6 therefore is not
ielied upon. Sheet Metal Workers International Association, Local Union No. 28 (Ferro-Co
Corporation), 102 NLRB 1660; Local Union No. 878 of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (Arkansas Express,
Inc ), 92 NLRB 255, 265-6; and Humphrey v Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (AFL), et at, 25 LRRM
2318, 2321 (N D. N. Y.) , Cement Masons Local No. 555, Operative Plasterers & Cement
Masons International Association, AFL, 102 NLRB 1408, cited by the Company and the
General Counsel, did not involve an alleged violation of Section 8 (b) (4) (A) of the Act,
and is not in point.
° In reaching this conclusion, I have considered the fact that on January 28, Poja, a
union steward, refused to unload the Company's freight because Reilly was not a union
member. However, I do not consider this of sufficient weight to overcome Lemke's testi-
mony quoted above.
1766. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracts violated article 4 of the Milwaukee local cartage agreement . This pres-
sure was successful in securing the cancellation of only 1 of the 16 subcontracts.
In other cases, however , the management of the over -the-road carriers failed to take
any disciplinary action against employees who refused to handle freight tendered by
the Company . In addition , none of the carriers contested this interpretation by
resorting to the arbitration procedure provided for in the Milwaukee local cartage
agreement . Finally, at least one of the top management officials of the over-the-
road carriers testified that he believed that article 4 had been violated 25 It is there-
fore evident , and I find , that the over-the-road carriers acquiesced in the Union's
position that they had violated article 4 by subcontracting work to the Company.
d. The Company hauled goods for other customers in addition to Chain Belt.
Yet in every instance where freight tendered by the Company was refused at the dock
of an over-the-road carrier , the cargo involved originated at Chain Belt . Indeed,
when Reilly arrived at Royal 's dock on October 16, despite the fact that the Com-
pany's name appeared on its truck , Flegler inquired whether the cargo was from
Oilgear . It was not until Reilly admitted that the freight was from Chain Belt that
Flegler indicated that the dockworkers would not unload the truck . It therefore
clearly appears that Flegler 's interest was the cargo 's origin , not the fact that the
Company was delivering it. In short , the Union 's activity was not aimed indiscrimi-
nately at all freight delivered by the Company, but only the freight of Chain Belt,
that is, cargo hauled under the subcontracts.
The Company argues that one of the objects of the Union 's activity was to force
or require Reilly , a self-employed person , to join the Union . Aside from the failure
of the complaint to allege such an object , it is clear from the evidence that Reilly had
no proprietary interest in the Company 's business , and therefore was not "self-em-
ployed" within the meaning of Section 8 (b) (4) (A ) of the Act.26 And although
Reilly may well have been an "employer " within the meaning of that section, there
is insufficient evidence to indicate that an object of the Union 's concerted activity
was to force him to join the Union . As has been noted above , Beaudoin, an or-
25 Maile, secretary-treasurer of Royal, testified .
Q Now, counsel asked you if Royal Transit refused to handle freight and you said
"Yes." Did the management people in Royal Transit refuse to handle Reilly freight
or what was the situation?
A. Well, when it, of course, appeared that our men would not handle the ship-
ments tendered to us by Reilly Cartage there was a conference between Mr. Anderson,
our operations manager, and myself, and we at that time decided it would not be
wise to try and push the issue any further. Since the men refused to handle these
shipments and apparently had reason not to , and since we did check an article in our
contract which stated that we would not subcontract any of our work with other than
a union carries ; and further, since there was some question in our salads as to how
that Article K [sic] in that contract with 200 would apply, we allowed the matter
to drop right then and there.
Q. You have an I C. C. permit, do you not?
A. We do.
Q Under your I C C. permit are you permitted to refuse freight from anyone who
offers it"
R • ♦ t * ♦ 4
A. That thought did occur to us, and that matter was discussed with Mr. Ryan
of Chain Belt, and the general understanding between Chain Belt, who we understood
was the primary customer tendering the freight to us, was that until the matter
clarified itself in one way or another that it probably would be best to just let the
matter drop then and there [Emphasis supplied ]
28 On this subject, Reilly testified
Q What is your occupation?
A My occupation is manager of the Reilly Cartage Trucking business.
Q You say you are manager
A Yes.
Q. Do you have any stock or otherwise interest in the business?
A. No, I don't.
Q You are paid a manager 's salary?
A. I am paid a salary.
Q Is the business owned entirely by Marie T . Reilly?
A Yes.
REILLY CARTAGE COMPANY 1767
ganizer for the Union, in November 1952 (after the stoppages began), asked Reilly if
he would be interested in joining the Union, and Reilly replied in the negative. The
subject does not appear to have been pursued further by the Union.
In view of the above facts, it is found that the real targets of the Union's activity
were the subcontracts between Reilly and the over-the-road carriers, and that the
Union's sole objective was to force the carriers to cancel these subcontracts.
3. The legality of the object
The Board and the courts have held that Section 8 (b) (4) (A) of the Act was
aimed at secondary rather than primary action 27 The question then arises whether
the Union's activity directed toward forcing the over-the-road carriers to cancel their
subcontracts with the Company was primary or secondary.
Although the carriers acquiesced in the Union's position that they had violated
article 4 by subcontracting work to the Company, only one carrier acceded to the
Union's demand to cancel its subcontract. The other 15 did not do so.28 It was this
failure of the 15 carriers to cancel their subcontracts with the Company which pre-
cipitated the Union's actions described above. Thus, there arose a controversy be-
tween the carriers and the Union over terms and conditions of the dockworkers' em-
ployment. This constituted a labor dispute within the meaning of Section 2 (9) of
the Act It was a dispute between the over-the-road carriers on one hand and the
Union which represented their employees on the other and hence was a primary dis-
pute. Moreover, the activities here complained of occurred at the docks of the
primary employers, the over-the-road carriers. Accordingly, I conclude that the
activities in question were primary activities not proscribed by Section 8 (b) (a) (A)
of the Act.
But even if the over-the-road carriers are considered the secondary employers
and the Company is considered the primary employer, so that the activities com-
plained of are deemed to be secondary, the Union has not violated the Act. Under
what has become known as the Conway doctrine, the Board and the courts have
held that the Act does not prohibit a secondary employer and a union from volun-
tarily including provisions in their collective-bargaining contracts, or from honoring
such provisions, requiring the secondary employer to refrain in advance from doing
business with nonunion firms.29 That doctrine is applicable to the instant case.
It is true that article 4 of the Milwaukee local cartage agreement, here in question,
differs -somewhat from the contract provisions heretofore examined by the Board.
For example, in the Conway and Western cases, the contract reserved to the Union
the right to refuse to accept freight, and the Pittsburgh Plate Glass case involved
a provision that the employees would not be deemed to be in violation of the contract
27N. L. R B v. Denver Building and Construction Trades Council, et al, 341 U. S. 675,
Douds V. Sheet Metal Workers International Association, Local Union No. 28, 101 F
Supp 273, 101 F Supp. 970 (E. D N. Y ) ; United Electrical, Radio and Machine Work-
ers of America, et at. (Ryan Construction Corporation), 85 NLRB 417, 418, and Oil
Workers International Union, Local Union 346 (CIO) (The Pure Oil Company), 84 NLRB
315, 318. See Developments in the Law-The Taft-Hartley Act, 64 Harv. L. Rev. 781,
800-1; and Koretz, Federal Regulation of Secondary Strikes and Boycotts, 37 Corn. L. Q
235, 244-253; Contra: Joliet Contractors Association, et at. v N. L R. B., supra.
28 In two instances when its dock employees did not balk, Consolidated performed its end
of the subcontracts. As described above, the Company delivered Chain Belt cargo to Con-
solidated on October 17 and January 27, both times without incident. Another delivery
was accepted by Royal without difficulty after October 16, but it is not clear whether
Chain Belt freight was involved. The freight rejected by Mercury's dockworkers on Janu-
ary 28 was accepted by Co-Ordinated Transfer, another carrier.
"International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Local 294, A. P. of L. (Conway's Express), 87 NLRB 972, 982, petition to re-
view deified sub nom. Rabouin v. N. L. R. B., 195 F 2d 906 (C. A. 2) ; Chauffeurs, Team-
sters, Warehousemen and Helpers Local Union No. 135 (Pittsburgh Plate Glass Company),
supra; and Douds v. Sheet Metal Workers Union, 101 F. Supp. 273, 101 F. Supp. 970 (E D
N. Y ). The Board adhered to this view in another case, although deciding that the goods
in question were not covered by the contract provisions International Brotherhood of
Teamsters (Western Express Company), 91 NLRB 340 Contra: Humphrey v. Local 294,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (AFL), at al, supra; and see comment in Developments in the Law-The Taft-Hartley
Act, supra, at page 808.
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if they refused to handle unfair goods. Here, the employers themselves had agreed
not to subcontract work to nonunion firms. Thus, this is an a fortiori case, because
here the employers' own act of subcontracting work to the Company amounted to
a contractual breach and the Union's conduct was designed to prevent continuance
of this breach. Accordingly, even if the Union's activities be deemed secondary, it
did not violate the Act.
The Company argues in its brief that the Conway doctrine is "plainly contrary
to law." Inasmuch as the Board's decision in the Conway case was affirmed upon
appeal, and has been reaffirmed by the Board recently in the Pittsburgh Plate Glass
case, I deem this contention to be without merit.
At oral argument before the district court, the Company suggested that article 4
"could well be considered a contract in restraint of trade." 30 However, no claim
has been made that article 4 violates any provision of the National Labor Relations
Act. As this is not a proceeding under the Sherman Anti-Trust Act, and as the
Board and the courts have upheld similar contract provisions as a defense to a
charge of violating Section 8 (b) (4) (A) of the Act, I consider this contention
lacking in merit.
C. Contentions and conclusions with respect to violation of Section 8 (b) (4) (B)
The complaint alleges and the Union's answer denies that an object of the Union's
activities was to force or require the Company to recognize or bargain with the
Union as the collective-bargaining representative of the Company's employees,
although the Union had not been certified as their representative. Clearly, the
Union had never been certified as the bargaining agent for the Company's em-
ployees. It is also true that the Union's agents attempted to organize the Company's
employees as early as December 1951, but their efforts met with little success. How-
ever, the record is barren of any demand by the Union upon the Company for
recognition or bargaining rights. In the absence of proof of any such demand, I
find that the General Counsel has failed to prove that an object of the Union's
activities was to force or require the Company to recognize or bargain with the
Union.sl
In view of my conclusion that the Union did not violate Section 8 (b) (4) (A)
or (B) of the Act because the strike was primary, and even if it was secondary
was protected by article 4 of the Milwaukee local cartage agreement, I deem it
unnecessary to discuss other defenses raised by the Union. The Union's motion
to dismiss the complaint against it, upon which ruling was reserved, is accordingly
granted.
Upon the basis of the foregoing findings of fact, and upon the entire record in
these cases, I make the following:
CONCLUSIONS OF LAW
1. Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, AFL,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing her employees in the exercise
of rights guaranteed in Section 7 of the Act, the Company has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
3. The aforesaid unfair labor practices tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce and are unfair labor
practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The Union has not engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) or (B) of the Act.
[Recommendations omitted from publication.] ,
30 The Company cited Allen Bradley Co , et al v Local Union No. 3, International Broth-
erhood of Electrical Workers, et al., 325 U. S 797.
31 Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, 101
NLRB 1284, cited by the Company, is distinguishable on its facts. In that case, there was
no contract breach by the carriers, and the only object the union could have had was to
organize the suppliers' employees. Here, however, the Union's sole object was cancella-
tion of the subcontracts.