Teamsters, Chauffeurs, Warehousemen & Helpers

National Labor Relations Board - Board Decisions

Dec 14, 1957

119 N.L.R.B. 852 (N.L.R.B. 1957)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize the, undersigned union as the representative of its employees, unless and
until certified by the National Labor Relations Board.
DRIVERS, CHAUFFEURS AND HELPERS LOCAL 639,
INTERNATIONAL BRO'IIIERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By----------- -----^_- --,--------------
Representative (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Teamsters, Chauffeurs, Warehousemen ,& Helpers, Local Union
No. 390, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America ' and Herbert A.
Spencer and - Lee K. Spencer, co-partners, doing business as
U & Me Transfer, Palm Beach'Transfer and U & Me Transfer
of Belle Glade
Howard Lasater, agent of , Teamsters, Chauffeurs, Warehouse-
men & Helpers, Local Union No. 390, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America and Herbert A. Spencer and Lee K.. Spencer, co-
partners, doing business as U & Me Transfer , Palm Beach
Transfer and U & Me Transfer of Belle Glade . Cases Nos.
12-CC-1 (Formerly 10-CC-6255) and 12-CC-2 (Formerly 10-CC-
256). December 14, 1957.
DECISION AND ORDER
On December 21, 1956, Trial Examiner George Bokat issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the Charging
Party filed exceptions to the Intermediate Report and supporting
briefs.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case,z and finding merit in the exceptions, hereby rejects the recom-
i The Board having been notified by, the AFL-CIO that it deems the Teamsters' certijiicate
of affiliation revoked by convention action, the Identifieat$on .of this union is hereby
amended.
6 The Charging Party's request for oral argument is hereby denied because the record, the
exceptions, and briefs adequately present the issues and positions of the parties.
- 119 NLRB No. 114.
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS 853
mendations of the Trial Examiner and adopts his findings and con-
clusions , only to the extent consistent herewith.
Except as hereinafter indicated , the facts in this case are not in dis-
pute. As found by the Trial Examiner, the background facts are in
substance as follows :
Herbert A . Spencer and Lee K . Spencer, as partners , are engaged in
the business of local cartage by motortruck and in the storage business
in West Palm Beach , Florida. On First Street in that city they have
an office, a terminal , and warehouse facilities where they operate under
two trade names, U & Me Transfer and Palm Beach Transfer.
U & Me Transfer and Palm Beach Transfer each has its own set of
employees but these employees are interchanged and supervised in
common. Concededly , U & Me Transfer and Palm Beach Transfer
constitute a single employer . Collectively , they will be referred to
hereinafter as Spencer.'
About 2 blocks from Spencer's First Street terminal , the Seaboard
Air Line Railroad , herein called Seaboard , has a freight terminal
where freight is delivered in boxcars . This terminal is shared by a
nationwide freight forwarder , Universal Carloading Co., herein called
Universal , which leases office and warehouse space there from Sea-
board. Universal has stationed at the Seaboard terminal a sales rep-
resentative , who is in charge of Universal 's office there , and his secre-
tary, but no other employees.
About 17 blocks from Spencer 's First Street terminal , the Florida
East Coast Railroad , herein called FEC, has a similar freight termi-
nal. This terminal is shared by Acme Fast Freight Co ., herein called
Acme; which leases space there from FEC. Acme has about 5 or 6
employees working at the FEC terminal.
With respect to inbound freight entrusted to them for shipment,
Seaboard and FEC provide free delivery service within the city
limits of West Palm Beach . Seaboard and FEC employees unload
such railroad freight shipped on their respective lines, but neither
Seaboard nor FEC handles delivery of the freight to the consignee.
To make such deliveries , Seaboard has a contract with U & Me
Transfer , and FEC has a contract with Palm Beach Transfer 4
Under these contracts , Spencer employees make these deliveries in
trucks of U & Me Transfer for Seaboard , and in Palm Beach Transfer
trucks for FEC'
3 The Spencers also operate a terminal in Belle Glade Florida , about 42 miles from west
Palm Beach, but the Belle Glade terminal is not involved in this proceeding
4 Palm Beach Transfer was formed in 1952 when the Spencers' first contract with FEC
required delivery in trucks bearing a name other than U & Ale Transfer which serviced
Seaboard, a competitor railroad.
5 Neither Seaboard nor FEC provides any delivery service for freight shipped to west
Palm Beach but destined for nearby points outside that city. In such cases, either the
shipper or the consignee makes his own arrangements for delivery.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U & Me Transfer also has a contract with Universal under which
Spencer unloads all Universal freight at the Seaboard freight ter-
minal and makes deliveries of Universal freight to consignees located
in West Palm Beach. Spencer also unloads and dispatches Universal
freight destined for nearby points outside 1\Test Palm Beach, but such
suburban freight is delivered by Central Truck Lines, hereinafter
called Central. Central has a separate terminal somewhere in West
Palm Beach and has a hot-cargo contract with the Teamsters, Local
Union No. 390, a Respondent in this case.
Palm Beach Transfer also has contracts with three freight for-
warders, Republic Carloading Co., herein called Republic, National
Carloading Co., herein called National, and Palm Beach County
Freight Receivers Association,, each of which receives tonnage in box-
cars at the FEC freight terminal." Under these contracts, Palm
Beach Transfer unloads all such freight and makes local deliveries.
Central makes certain suburban deliveries of freight for Republic
and National. Central also makes deliveries for Acme who is quartered
at the FEC terminal. Spencer has no contract with Acme and does
virtually no business with Acme.
In addition to the work for the railroads and the freight forwarders
referred to above, Spencer is engaged at the First Street terminal
in general furniture moving and storage, and, under contracts with
two over-the-road trucking lines, Carolina Freight Carriers and
Tamiami Freightways, handles their local pickups and deliveries.
To handle the large volume of freight at the two railroad freight
terminals, U & Me Transfer assigns drivers and helpers to work
under the supervision of a U & Me Transfer foreman at Seaboard,
and Palm Beach Transfer has similar employees working under the
supervision of a Palm Beach Transfer foreman at FEC. In addi-
tion to these regular employees, Spencer employs casual laborers on
-a daily basis to do unloading work at the two railroad freight
terminals.
The events pertaining to the violations alleged in the complaint are
the following :
On Friday, July 6, 1956, 'the Respondent, Howard Lasater, the
Teamsters' business agent, requested recognition from Spencer as rep-
resentative of Spencer's regular drivers and helpers. Spencer insisted
on an election. Lasater also complained about the discharge of an
individual who had been a Spencer supervisor at one of the railroad
freight terminals, but received no satisfaction.
The next day, at a meeting of union members, including Spencer
employees and employees of Central Truck Lines, Lasater announced
an intention to picket U & Me Transfer and Palm Beach Transfer.
O These three freight forwarders occupy no space at the FEC terminal and have no em.
ployees there.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 855
According 'to the Trial Examiner's finding, at this meeting Lasater
stated that he "did not want them crossing the picket line" that was
to be established on July 9.7
On Monday morning, July 9, 1956, the Teamsters placed pickets at
the First Street terminal and at the sole entrances to the Seaboard
and FEC freight terminals. The pickets carried a sign reading :
"U & Me Transfer and Palm Beach Transfer being picketed by
Teamsters, Local 290." The picketing continued at the two railroad
terminals Monday thru Friday of each week from 8 a. in. to 4 p. m.,
whether or not any Spencer trucks were loading or unloading there,
until August 15, 1956, when a temporary restraining order issued
in a proceeding under Section 10 (1) of the Act. Picketing at the
First Street terminal was still current at the time of the hearing in
October 1956.
The following occurred after the picketing began :
(1) No Spencer employee went on strike.
(2) Carolina and Tamiami suspended dealings with Spencer who
had serviced them at the First Street terminal.8
(3) As to Central, (a) on the morning that the picketing began,
Lasater, in the presence of George McMurtry, the Teamsters' em-
ployee-steward at Central, notified Thomas Chapin, manager of Cen-
tral, that "U & Me Transfer and Palm Beach Transfer were being
picketed and that [Central] employees would not be allowed to han-
dle any of the freight where those two particular companies were in-
volved, either to receive or deliver to those places, and any freight that
was handled by these particular organizations was declared unfair
goods"; (b) when Chapin specifically inquired about Universal's
suburban freight, Lasater stated : "That since U & Me performed the
unloading service for that organization that their goods would be
declared unfair . . . it was that position that was being picketed and
[Central] drivers would not be allowed to go into the warehouse
[Seaboard]"; and (c) thereafter, on the same morning, Steward Mc-
Murtry told Central employees : "U & Me Transfer and Palm Beach
Transfer was declared unfair freight and they were not to handle this
freight or cross the picket lines that were set up."
4 There is an exception to this finding on the ground that Central employees were told not
only to refrain from crossing the picket line but also-and this the Trial Examiner failed
to find-that the Respondents branded Spencer cargo as "unfair" and told Central em-
ployees not to handle it, thereby imposing an embargo upon such cargo not limited to the
picketed premises. This exception will be treated later.
8 The Trial Examiner made no finding as to whether there was any violation as to this
aspect, stating that the General Counsel did not so contend . The Charging Party now
so contends. However, apart from the existence of a primary picket line at the First
Street terminal, there is no evidence of inducement as to employees of Carolina or Tamiami.
The record shows only that these two employers were notified of the impending picket
action by the Teamsters. With respect to such conduct , we find no violation of the Act as
it does not prohibit inducement of employers. See, for example, N. L. R. B. v. Business
Machine and. Office Appliance Mechanics Conference Board, Local 459, IUEW, CIO, 228
F. 2d 553, 558-559 (C. A. 2).
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) When the picketing began, Van Son, Universal's local man-
ager, told Spencer to discontinue operations until the situation was
clarified, and summoned Lasater to the Seaboard terminal; when asked
what position he was taking toward Universal, Lasater replied that he
was there "to organize U & Me Transfer and as long as Universal as-
sociated itself with U & Me it would be picketed"; but, when Van Son
asked pointblank : "Are you picketing Universal ?" Lasater replied :
"No, U & Me Transfer."
(5) Following conversations among Lasater, Van Son, and Chapin,
(a) Central decided to abide by its hot-cargo contract; (b) Universal
arranged to have its local deliveries handled by Wilkinson Transfer
Co., a nonunion cartage firm which had its own railroad siding on
the Seaboard tracks about 10 blocks from the Seaboard freight termi-
nal, and to have its future suburban freight switched to Fort Lauder-
dale, about 40 miles from West Palm Beach, and handled from there;
(c) the Teamsters agreed to permit Central drivers to cross the picket
line to pick up suburban freight already unloaded and in Universal's
warehouse at Seaboard. Loaded freight cars of Universal freight on
hand were switched to Wilkinson's terminal from where Central han-
dled the suburban deliveries. There was no picketing at Wilkinson's
railroad siding. About August 1, 1956, Universal resumed having
.its local freight unloaded at Seaboard, but used Wilkinson instead of
'U & Me employees to unload and deliver.
.(6) At the FEC terminal, Central ceased handling freight for
Republic and National because such freight was unloaded by Palm
,Beach Transfer and was thus "unfair"; but Central continued to han-
dle Acme freight as such freight was not handled by Spencer and thus
was not "unfair."
When the 10 (1) injunction was issued, picketing ceased at the two
railroad terminals, Universal resumed business with Spencer, and Cen-
tral ceased to boycott Spencer cargo by resuming its normal business
relationships.
The complaint in this case in substance alleges that, by picketing at
the two railroad terminals; by telling Central, in the presence of a
Central employee, that its employees were not to cross the picket lilies ;
and by instructing Central employees not to cross the picket lines, the
Respondents induced employees of employers other than Spencer to
engage in strikes or concerted refusals to perform services for the ob-
ject or purpose of forcing their employers, or other persons, to cease
doing business with Spencer and for the purpose and object of forcing
Spencer to recognize and bargain with the Teamsters, although not
the certified representative.
In substance, the Trial Examiner found that the Respondents made
no attempt "to induce or encourage" any employees of the neutral
employers who shared or occupied space at the Seaboard and FEC
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 857
freight terminals and that the picketing at the two railroad freight
terminals was primary in character. Hence he concluded that, by
picketing at the two railroad freight terminals, the Respondents did
not violate Section 8 (b) (4) (A) or (B) of the Act. For the reasons
hereinafter indicated, we do not agree.9
We find that the picketing had an unlawful object. The Trial
Examiner concluded that the testimony as to Lasater's conversations
with Van Son of Universal and Chapin of Central did not establish
that the Teamsters had as an object, in picketing at the Seaboard and
FEC terminals, "enlistment of the aid of neutral employers through
their employees, other than by the means employed in traditional
primary picketing." After noting that Universal initiated a self-
imposed embargo of Spencer's services when the picketing began, and
that, with the consent of the Teamsters, Universal replaced Spencer
with Wilkinson's services, the Trial Examiner reasoned that Lasater
had made clear that the Teamsters' "conduct invited action at the
common situs only insofar as it affected services being performed
there by Spencer's employees." In this connection, the Trial Exam-
iner relied on the fact that, because the Teamsters' position had been
thus made clear, Chapin 10 undertook to do business with Wilkinson, a
nonunion firm, and that, when Van Son asked Lasater whether
Universal was being picketed, Lasater replied : "No, U & Me Trans-
fer." The Trial Examiner further noted, and we agree, that the
Teamsters did not orally communicate with any of the neutrals'
employees regularly employed at the two railroad terminals or with
any neutral employees engaged in making deliveries there, with the
exception of Central employees (a matter with which the Trial
Examiner dealt separately, as will hereinafter appear).
As to a self-imposed embargo of Spencer's services, it is true that,
when the picketing began, Universal instructed Spencer to suspend
operations. But this was done to enable Universal to investigate and
ascertain the scope of the picketing. Van Son of Universal promptly
summoned Lasater to the Seaboard terminal for an explanation.
When asked what position he was taking with regard to Universal,
in addition to making the statement relied on by the Trial Examiner,
Lasater replied that he was there "to organize U & Me Transfer and
as long as Universal associated itself with U & Me it [Universal]
would be picketed." As a result, Universal thereupon disassociated
itself from Spencer by engaging Wilkinson to do the work formerly
done by Spencer.
9In view of our decision on other grounds, hereinafter set forth, that the picketing had
an unlawful object, we find it unnecessary to determine whether the doctrine of the Wash-
ington Coca-Cola case, 107 NLRB 299, or the Moore Dip Dock case, 92 NLRB 547, is ap-
plicable in the instant case.
10 Apparently referring to Universal.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, Lasater told Chapin of Central that : "Since U & Me
performed the loading service for [Universal], that their goods
[Universal's] would be declared unfair and . . . it was that position
that was being picketed and . . . [Central] drivers would not be
allowed to go into the [Seaboard] warehouse." Accordingly, when
Universal replaced Spencer with Wilkinson's services, Central con-
tinued to handle Universal's freight by performing such work at
Wilkinson's terminal.
Treating the inducement to Central employees as no more than an
entreaty not to cross the picket lines at the common situs, the Trial
Examiner reasoned that the Teamsters' conduct, as it related to Cen-
tral, "invited action at the common situs only insofar as it affected
services being performed there by Spencer's employees," and for that
reason he was of the view that the instant case is distinguishable from
Richfield Oil, 95 NLRB 1191. We do not agree.
In Richfield Oil, the respondent union picketed at the gates of
Richfield's oil field with signs, as in the instant case, stating that the
primary employer, Superior, there engaged in installing certain vapor
recovery systems under contract with Richfield, was unfair. Among
other things, the pickets stopped trucks of Swoape Trucking Co., a
neutral employer, which were loaded with cargo destined for Rich-
field and not intended for use by Superior. The Board there held
that an object of such picketing, which disrupted Richfield's business,
was to force Richfield to cease doing business with Superior by induc-
ing third parties, such as Swoape Trucking Co., to refuse to enter
Richfield's premises.
In the instant case, Central was doing business at the Seaboard
terminal not with Spencer but with Universal, a neutral. The Team-
sters told Central employees not to cross the picket line to handle
Universal cargo because it was unloaded by Spencer. Thus, in light
of the Teamsters' appeal to Central employees, we conclude that an
object of the picketing at Seaboard was to disrupt the business of
Universal (who, like Richfield, was an occupant of picketed premises),
to force Universal to cease doing business with Spencer.
Furthermore, under all the circumstances, we are persuaded and,
accordingly, find that, to gain a similar objective, the picketing was
likewise directed at Seaboard and FEC, the other occupants of the
picketed premises who did business there with Spencer, and at Sea-
board and FEC employees who unloaded cargo which Spencer
delivered.
In sum, based on (1) Lasater's conversation with and statements
to Van Son and Chapin, set forth above, and (2) the Respondents'
instructions to Central employees not to cross the picket lines at the
railroad terminals or pick up or deliver any freight handled or to be
handled by Spencer employees, as hereinafter more fully set forth,
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 859
we conclude that the picketing of the 2 railroad freight terminals
was directed beyond Spencer and that the Respondents intended by
such picketing to exert pressure upon all employers and persons en-
gaged in business at the 2 railroad freight terminals and there doing
business with Spencer, together with the respective employees of such
neutrals, to compel such employers and persons to cease doing business
with Spencer, and to force Spencer to recognize the Teamsters as the
statutory bargaining representative of Spencer's employees, although
not certified as such.
Accordingly, we find that the Respondents, by picketing at the
Seaboard and FEC freight terminals, induced and encouraged em-
ployees of Seaboard and FEC 11 to refuse to perform services in the
course of their employment (1) to force or require Seaboard, FEC,
and Universal to stop doing business with Spencer and (2) to force
or require Spencer to recognize the Respondent, the Teamsters, as the
representative of Spencer's employees although uncertified as such
representative, in violation of Section 8 (b) (4) (A) and (B) of the
Act.
We come now to a consideration of the oral appeals not to handle
goods. The Trial Examiner found that the Respondent, Lasater,
requested Central employees not to cross the picket line. He con-
cluded that such request, insofar as it related to the picketing at the
two railroad freight terminals, constituted no more than an appeal
for sympathetic action at the premises of the railroad freight ter-
minals, and as in his view the picketing at the railroad terminals
constituted primary picketing, the appeal mounted to "traditional
primary strike action outside the purview of Section 8 (b) (4) (A)
and (B)." In reaching this conclusion, the Trial Examiner relied
principally on Interborough News Company, 90 NLRB 2135,12 and
Pure Oil Company, 84 NLRB 315.13
11 Seaboard, FEC, and their respective employees are subject to the provisions of the
Railway Labor Act. Notwithstanding the recent adverse decision of the Court of Ap-
peals for the Fifth Circuit in W. T. Smith Lumber Company v. N. L. R. B., 246 F. 2d 129,
Chairman Leedom and Members Murdock and Bean are still of the view, previously main-
tained by them in Paper lfa1 ers Importing Co., Inc., 116 NLRB 267, and in W. T. Smith
Lumber Company, 116 NLRB 1756, that railroad workers are not employees within the
meaning of the Act and thus are not subject to inducement or encouragement in the statu-
tory sense . However, as the Board, for reasons sufficient to it, has not filed certiorari
proceedings for review, Chairman Leedom and Members Murdock and Bean acquiesce in the
court's decision and here apply the court's view, the instant case falling within the geo-
graphical jurisdiction of that court. Member Jenkins, however, is in agreement with the
court's view in the W. T. Smith Lumber case.
12 In Interborough News, a union struck Interborough News, the primary employer, who
owned and operated subway newsstands in the Independent Subway System, and picketed
at the subway station premises of Interborough. In addition, union agents visited em-
ployees of other employers who normally delivered newspapers to Interborough' s news-
stands and told them not to make deliveries to Interborough's subway newsstands. The
Board held the union's conduct not violative of Section 8 (b) (4) (A) because it invited
action only at the picketed premises of the primary employer.
13 In Pure Oil, the Oil Workers union struck Standard Oil, the primary employer, and
picketed a dock owned and occupied by Standard where Standard employees normally
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the Trial Examiner, 'this was not a case where Cen-
tral's employees were induced not to handle, at their own place of
employment, freight that they otherwise would have handled in the
course of their employment. Rather he viewed the appeal to Central
employees as one "for a refusal to handle freight unloaded or possibly
to be loaded by Spencer employees and which could only be reached
by Central's employees crossing the primary picket lines at the Sea-
board and FEC terminals."
The General Counsel and the Charging Party except to these find-
ings and conclusions upon 2 principal grounds, i. e., (1) the picketing
at the 2 railroad terminals was secondary and not primary in char-
acter, and (2) the oral appeal in fact branded freight handled or to be
handled by Spencer as unfair and called for a refusal to handle such
freight not only at the 2 railroad terminals but also at other points.
As we have found above that the picketing was secondary and not
primary in character, we conclude that the Respondents' appeal to
Central employees not to cross the picket lines was not "traditional
primary strike action outside the purview of Section 8 (b) (4) (A)
and (B)."
We also find, contrary to the Trial Examiner, that the Respondents'
oral appeal, which branded freight handled or to be handled by
Spencer as unfair, called upon Central employees to refuse to handle
such freight not only at the two railroad freight terminals but also
at all other places.
As stated above, the Teamsters had a contract with Central, which
contained a hot-cargo clause. This clause provided that it shall not
be a cause for discharge for any employee to "refuse to go through
the picket line of a Union or refuse to handle unfair goods." It
further provided that "the Union and its members . . . reserve the
right to refuse to handle goods from or to any firm or truck which
is engaged or involved in any controversy with this or any other
'Union; and reserve the right to refuse to accept freight from, and to
make pickups from, or deliveries to establishments where picket lines,
strikes, walkout or lockout exist."
The Trial Examiner found, and there is no exception to this finding,
that Lasater told Central employees on July 7 not to cross the picket
,lines to be established on July 9. In addition thereto, there is in evi-
dence an affidavit, dated July 19, 1956, by George McMurtry, the
Teamsters steward at Central, that at a union meeting just before
the establishment of the picket lines, the Central employees were also
loaded Standard's oil and oil of Pure Oil who operated a refinery adjacent to that of
Standard. In addition, the Oil workers union addressed letters to the NMU, the repre-
sentative of the crew of a tanker operated by Great Lakes Transportation Co., who trans-
ported oil cargo for Pure Oil, asking the maritime workers not to transport Pure Oil cargo
from Standard's dock. The Board held that the picketing, as well as the letters, constituted
primary action, and that the letters amounted to nothing more than a request to respect
a primary picket line at the primary employer's premises.
TEAMSTERS, CHAUFFEURS,. WAREHOUSEMEN. & HELPERS 861
told that "U & Me Transfer and Palm Beach Transfer was declared
unfair freight and that they were not to handle this freight. . . ."
The Trial Examiner made a finding that the McMurtry affidavit gave
It substantially true picture of the events depicted therein." Also,
the Trial Examiner found, as the record shows, that "McMurtry was
present when, on the morning the picketing commenced, Lasater in-
formed Chapin that pursuant to the contract his `employees would
not be allowed to handle any of the freight' of the primary employer."
Further, the Trial Examiner found that McMurtry's duties as union
steward included the transmission of union instructions to Central
employees, and McMurtry stated in his affidavit, which the Trial
Examiner credited, that he transmitted, to the Central employees
instructions not to handle Spencer freight or cross the picket lines.
It is true that no Central driver or helper actually refused to handle
Spencer freight at any point other than the picketed premises. How-
ever, the test is not whether such an appeal was successful,14 but
whether the appeal was so framed as to call upon Central employees
not only not to handle Spencer freight at the picketed premises but
also at any other point. There is credible evidence in the record, not
mentioned in the Intermediate Report, that Manager Chapin of
Central so understood the Teamsters' appeal when Lasater, in his
statements to Chapin, branded Spencer cargo as unfair. Signifi-
cantly, in one instance, during the picketing at the railroad terminals,
when Spencer called at Central's terminal to pick up certain freight
for a Spencer customer, the Central foreman, acting under Chapin's
instructions, and Chapin, upon appeal to him, refused to make the
delivery to Spencer. In another instance, when L. K. Spencer sent
one of his drivers with freight, for transshipment by Central, to the
Central terminal, Chapin turned the driver back without accepting
the freight. Moreover, under the circumstances, the fact that Central
employees crossed the picket line to handle freight of Acme, who was
not doing business with Spencer, indicates that Central employees
understood their instructions from the Union 15 as forbidding crossing
of the picket lines only to handle Spencer cargo and as banning all
handling of such cargo without respect to location. Under all the
circumstances, we find that such were the Respondents' instructions
to the Central employees and that these employees so understood them.
As the oral appeal thus called for an embargo upon Spencer cargo at
points other than the picketed premises, Pure Oil and Interborough
are inapplicable in the instant case, even if, contrary to our finding,
.the picketing at the two railroad freight terminals were primary in
14 See, for example , N. L. R: B. v. Business Machine and Office Appliance Mechanics Can-
ference Board, Local 1 59, IUEW, CIO , cited supra , at p. 559 of the court 's opinion.
15 Lasater and, McMurtry also made the unfair cargo remarks to Central employees, ac-
cording to McMurtry 's credited affidavit.
862 DECISIONS OF NATIONAL. LABOR RELATIONS- BOARD'
character, because in those cases, unlike here, the appeals called only
for nonhandling of boycotted cargo at the picketed premises. .
Upon the basis of the foregoing, we find that the Respondents, by11
the oral appeals to Central employees set forth above, induced and
encouraged employees of Central to refuse to perform services in the
course of their employment (1) to force or require Central to stop
doing busines with Universal, Republic, and National, (2) to force
or require these three freight forwarders to stop doing business with
Spencer, and (3) to force or require Spencer to recognize the Respond-
bnt, the Teamsters, as the representative of Spencer's employees al-
though uncertified as such representative; in violation of Section 8 (b)
(4).(A) and (B) of the Act.
ORDER
.Upon the entire record in this proceeding and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Teamsters,
Chauffeurs, Warehousemen & Helpers, Local Union No. 390, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, its officers, representatives, and agents including
the Respondent, Howard Lasater, shall :
1. Cease and desist from inducing or encouraging the employees of
Seaboard Air Line Railroad, Florida East Coast Railroad, Central
Truck Lines, or any other employer (other than U & Me' Transfer and
Palm Beach Transfer) 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, or commodities,
or to perform any services for their respective employers, where an
:object thereof is (1) to force or require Seaboard Air Line Railroad,
Florida East Coast Railroad, Central Truck Lines, or any other em-
-.ployer or person to cease doing business with Herbert A. Spencer and
Lee K. Spencer, co-partners, doing business as U & Me Transfer, Palm
Beach Transfer, and U & Me Transfer of Belle Glade, or (2) to force
or require the latter to recognize or bargain with the aforesaid Local
Union No. 390 as the collective-bargaining representative of its: em-
ployees unless and until such labor organization has been certified
as such representative in accordance with the provisions of Section 9
of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at the business office of Respondent Local Union No. 390
copies of the notice attached hereto marked "Appendix A." 16 Copies
In the event that this Order is enforced by a. decree of a United States 'Court of Ap-
peals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN & HELPERS 863
of said notice, to be furnished by the Regional Director for the Twelfth
Region, shall, after being duly signed by the Respondents, be posted
by them immediately upon receipt thereof and maintained by them for
a period of sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to members are customarily
posted. Reasonable steps shall be taken by the said Respondents to
insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for the Twelfth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
MEMBER JENKINS, concurring :
Although I join the majority in sustaining the complaint in this
case,17 I find myself in the minority on the phase of the case which
requires determination of the issue of statutory interpretation raised
by the. Respondents' picketing at the two railroad terminals. On the
latter issue , Member Murdock, though finding himself unable to sus-
tain the complaint for other reasons, joins Chairman Leedom and
Member Bean in adhering to the view, "previously maintained by
them in Paper Makers 18 ... and W. T. Smith Lumber Co,19
that railroad workers are not employees within the meaning of the
Act." However, they have decided to "acquiesce" in the contrary
ruling of the Fifth Circuit Court of Appeals in the W. T. Smith
Lumber case where, as here, a case requiring disposition of that statu-
tory issue falls "in the geographical jurisdiction of that court." I
entertain no reservations as to the validity of the Fifth Circuit Court's
determination in the W. 7'. Smith Lumber case that railroads are
"employers" whose "employees" are subject to inducement and encour-
agement in the statutory sense of those words in Section 8 (b) (4).
The crucial issue of whether union inducement addressed to
employees of a neutral railroad constitutes a violation of Section
8 (b) (4) if for the proscribed objectives therein was first presented
to the Board in 1949 in the International Rice Milling Co. case.20
Concededly, the disposition of what at that time was a wholly novel
issue presented the Board with a difficult problem of statutory inter-
pretation, since, on the one hand, Section 2 (2) and (3) of the Act
specifically defines the terms "employer" and "employee" to exclude
17 My approval of the majority's findings that the Respondents' inducement of Central
employees was unlawful-even though occurring in the context of a "hot cargo" contract-
is predicated upon the reasoning of the opinion to which I subscribed in Genuine Parts
Company, 119 NLRB 399.
18 Paper Makers Importing Co., Inc., 116 NLRB 267.
3919. T. Smith Lumber Company, 116 NLRB 1756, remanded 246 F. 2d 129 (C. A, 5).
20 84 NLRB 360.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
railroads and their employees,21 and, on the other hand, Section 8 (b)
(4) broadly enjoins unions from taking or inducing any strike action
aimed directly or indirectly at forcing the participation of any neutral
"person" or "employer" in the primary dispute of the union involved.
The Board there read the exclusionary language of Section 2 of the
Act into the provisions of Section 8 (b) (4) and held the Board to be
without power to afford any effective remedy in the circumstances.
While the Fifth Circuit Court of Appeals took a contrary view of
the Board's power in that very case,22 a Board majority has neverthe-
less continued to follow the concepts formulated by the Board in the
Rice Milling case-and, as is here indicated, still continues so to do.
The Board's adamant adherence to its Rice Milling concept, despite
the well-reasoned disagreement of the Fifth Circuit Court of Appeals
with the restrictive interpretation of the statute such concept repre-
sented, may have been justified pending a definitive interpretation of
the statutory language involved by the Supreme Court. But I find
no justification for any present adherence of a Board majority to such
concept in light of the Supreme Court's decision in Local Union No.
25, International Brotherkood of Teamsters etc. v. New York, New
Haven d Hartford Railroad Co., 350 U. S. 155 (the so-called "piggy-
back" case, decided January 9,1956). And I am surprised that Chair-
man Leedom and Member Bean would, after subscribing to the major-
ity opinion in the Peter Furness 23 case, continue, as they indicate in the
instant case, to adhere to the Rice Milling concept. For they recog-
nized in the Peter Furness case that in the "piggy-back" decision, the
Supreme Court considered and rejected Board reasoning supplying
the foundation for the view that the exclusionary definition of Section
2 of the Act was to be read into the provisions of Section 8 (b) (4).24
21 Section 2 of the Act provides that "when used in this Act-
s * E k • • f
(2) The term "employer" . . shall not include . . . any person subject to the
Railway Labor Act, as amended from time to time. . . .
(3) The term "employee" . . . shall not include . . . any individual employed by
an employer subject to the Railway Labor Act, as amended from time to time. . . .
12 International Rice Milling Co. v. N. L. R. B., 183 F. 2d 21 (C. A. 5).
23 Peter D. Furness Electric Co., 117 NLRB 437.
2' The majority opinion of the Board in the Peter Furnees case states (117 NLRB at pp.
440-441) : "Although the "Supreme Court did not cite the Schneider [87 NLRB 99, 89
NLRB 221] or Sprys [104 NLRB 1128) cases in its decision, it seems clear that the
principles set forth in these cases were before the Court inasmuch as it was on the
basis of these decisions that the State court concluded that it had jurisdiction to grant the
injunction. We believe that . . . the Supreme Court has definitely rejected the Board's
supporting reasons" for the conclusions reached in the Schneider and Sprys cases.
In expressing my agreement with this statement of the Board, I note also that both par-
ties before the Supreme Court in the "piggy-hack" case made reference to the Board's
Schneider and Sprys decisions in their briefs.
The same analysis is applicable so far as the Rice Milling concept is concerned. For
the State court, in deciding that it had jurisdiction to grant the injunction (see 122 N. B.
2d 759, at p. 762), in the "piggy-back" case, also took into consideration the Board's Rice
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 865
By their present indicated area of adherence to the Board's Rice
Milling concept, my colleagues arrive at the absurd result that ( except
in the Fifth Circuit Court's jurisdiction) a strike to compel a neutral
person (including a railroad) to terminate its relations with a pri-
mary' employer in a labor dispute is prohibited by the Act, whereas
picketing or other inducement short of a strike addressed to employees
of a railroad for the same end is permitted activity.
In agreement with the dissenting opinion of my colleague, Member
Rodgers, in the Paper Makers and W. 7'. Smith Lumber cases, respec-
tively, and with the opinion of the Fifth Circuit Court of Appeals
in the latter, reversing the majority's dismissal of the complaint,'
I regard the above-cited Supreme Court case as holding de fnitively
that while this Act does not regulate railroads in the conduct of their
relations with their employees, it does afford railroads protection
against any union inducement or union sponsorship of strike action
by any employees, including their own where "an object" of such
union action is to force neutral railroads to aid the union's cause in
a dispute in which neither the railroads nor their employees are im-
mediately involved. The actual or potential obstruction to the rail-
road's business and the interruption to the transportation of goods
in commerce resulting from such action is at least as great in such
situations as it is in the Furness type of fact situation.
A careful and realistic reading of the following language in the
Supreme Court's "piggy-back" decision inescapably demonstrates,
so it seems to me, that the Supreme Court's decision removes from
the area of undetermined issues of statutory interpretation the very
question over which the majority here proposes still to decide in cases
not in the Fifth Circuit Court's jurisdictional area . The Supreme
Court stated (350 U. S. at p. 160) :
The Act, in its definition of an "employer," expressly excludes
anyone subject to the Railway Labor Act. . . . It is of course
true that employer-employee relationships of railroads such as
respondent are governed by the Railway Labor Act, which was
passed before either the National Labor Relations Act or the
Labor Managment Relations Act. Neither of the latter Acts was
intended to tread upon the ground covered by the Railway Labor
Act. It is clear that neither railroads nor their employees may
carry their grievances with one another to the N. L. R. B. for
resolution. But it does not follow from this that a railroad is
precluded from seeking the aid of the Board in circumstances
unrelated to its employer-employee relations.
nfilling concept and its continued adherence to such concept, despite the contrary view
of the Fifth Circuit Court of .Appeals . Both parties to that proceeding made reference
to this Board concept in the Supreme Conrt briefs.
25 IV. T. Smith Lemibcr Co. v. Al. L. If.. B., .supra.
476321--58-vol . 1.19---56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
... We think it clear that Congress, in excluding "any person
subject to the Railway Labor Act" from the statutory definition
of "employer," carved out of the Labor Management Relations
Act the railroads' employer-employee relationships which were,
and are, governed by the Railway Labor Act. But we do not
think that by so doing, Congress intended to divest the N. L. R. B.
of jurisdiction over controversies otherwise within its competence
solely because a railroad is the complaining party. Furthermore,
since railroads are not excluded from the Act's definition of
"person," they are entitled to Board protection from the kind of
unfair labor practice proscribed by § 8 (b) (4) (A). This inter-
pretation permits the harmonious effectuation of three distinct
congressional objectives: (1) to provide orderly and peaceful
procedures for protecting the rights of employers, employees and
the public in labor disputes so as to promote the full, free flow
of commerce, as expressed in § 1 (b) of the Labor Management
Relations Act; (2) to maintain the traditional separate treatment
of employer-employee relationships of railroads subject to the
Railway Labor Act; and (3) to minimize "diversities and con-
flicts likely to result from a variety of local procedures and atti-
tudes toward labor controversies." Garner v. Teamsters Union,
346 U. S. 485, 490. [Emphasis supplied.]
It is true that in the."piggy-back" case the inducement of the
union to "employees" of the railroad was not in issue, and that accord-
ingly it might be said that the Supreme Court's decision is not a direct
holding on the question of whether inducement to employees of a rail-
road is immune from the Act's proscription. However, the issue of
statutory interpretation before the Court involved construction of
language (utilized in Section 8 (b) (4) describing what portion of
the public was to be afforded the protections described in the Act.
This section, as written by the Congress, employs the words
"employers" and "persons" interchangeably in a scheme in which the
'definition section of the Act (Section 2) expressly excludes anyone
subject to the Railway Labor Act. In its decision, the Court employed
both words interchangeably in defining the purview of Section 8 (b)
(4) and the rights of railroad employers thereunder 21 In this, and in
other ways, the Court clearly indicated, so it seems to me, that the
sole effect of Section 2 of the Act was to "carve out" of the regulatory
ambit of the Act the railroad company's own conduct of its relation-
ships to its own employees and no more. I so find. I find further
that the Court, in effect, directed the Board not to refuse "jurisdiction
26 See particularly the portions of the above quotation last emphasized. The only em-
ployers with which the Court was immediately concerned were railroad employers.
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN & HELPERS 867
over controversies otherwise within its competence solely because a
railroad is the complaining party " 21-a directive clearly disregarded
by the reluctant majority which still maintains that in cases outside
the Fifth Circuit Court's geographical jurisdiction, the Board has
no power to forbid union inducement or encouragement of work
stoppages by railroad employees even where it is clear that the object
of such union action is to force the railroad 's participation in a dispute
not of its making between the union and an employer clearly within
the Act's coverage 28
It automatically follows from what I have said that my approval of
the findings of violation made herein and the order issued thereon is
based, as to that part of the findings and order concerning the two rail-
roads and their employees, upon an unqualified acceptance of the con-
cept that railroads are employers whose employees are subject to in-
ducement and encouragement within the meaning of those terms as
used in Section 8 (b) (4).
MEMBER MURDOCK, concurring in part and dissenting in part :
I am in agreement with the Trial Examiner that the picketing at
the Seaboard and FEC terminals was primary activity not proscribed
by Section 8 (b) (4) (A). Accordingly, while concurring with my
colleagues in applying the view of the Fifth Circuit Court of Appeals
to the decision in this case despite the adherence of a majority of the
Board to its decision in the Paper Makers case, supra, I am neverthe-
less of the opinion that the Trial Examiner must be affirmed.
I cannot agree that the Union in this case attempted in any manner
to hamper the business activity of employers other than the primary
employer. To find, as the majority does, that the Union orally for-
bade the handling of Spencer cargo "without respect to location" seems
to me an inference unwarranted on the record. I agree with the Trial
Examiner that the Union's oral appeals to employees of Central
amounted to nothing more than a request not to cross the Seaboard
and FEC picket lines, In any event, I would not find a violation of
Section 8 (b) (4) (A) on this ground because of Central's agreement
with the Union not to require its employees to handle "unfair goods."
My views in this respect have been fully set forth in the following dis-
' I do not believe that the Supreme Court used the phrase "the complaining party" in
the technical sense, meaning merely the charging party. The Court's use of the word
"furthermore" in the above quotation before the sentence material only to the railroad's
status as a "person" precludes the possibility that the prior sentence was merely an in-
terpretation of rights under Section 10 (b) of the Act..
11 See the dissenting opinion of Mr . Justice Douglas in Benz v. Compania Naviera, 353
U. S. 138, wherein he stated that "the force " of the ruling in the "piggy -back" case was
to give an employer "protection from any unfair labor practice condemned by the Act"
even if such employer ( a foreign ship ) were not subject to the Act' s regulatory provisions.
See also the Fifth Circuit Court of Appeals' opinion in W. T . Smith Lumber Company.
868 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
senting opinions:, Reilly Cartage Company, 110 NLRB 1742, .1759.;
McAllister Transfer Co. et al., 110 NLRB 1769, 1790; Sand Door and
Plywood Co., 113 NLRB 1210, 1222; American Iron and Machine
Works Company, 115 NLRB 800, 803. These dissenting opinions are
in conformance with the decisions of the Court of Appeals for the Sec:-
and Circuit, Rabouin d/b/a Conway's Express v. N. L. R. B., 195 F.
2d 906, reaffirmed in Milk Drivers Union v. N. L. R. B. (Crowley's
Milk), 245 F. 2d 817. The dissenting opinion in American Iron and
Machine Works, supra, as it pertains to the contracting union, has been
affirmed by the Court of Appeals for the District of Columbia in Gen-
eral Drivers Union v. N. L. R. B., 247 F. 2d 71, reversing to that extent
the majority's contrary decision.
MEMBER RODGERS took no part,in the consideration of the above De-
cision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN & HELPERS, LOCAL UNION No. 390, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AND TO ALL EMPLOYEES OF CENTRAL TRUCK LINES
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 employee of Seaboard
Air Line Railroad, Florida East Coast Railroad, Central Truck
Lines, or of any other employer (other than U & Me Transfer and
Palm Beach Transfer) 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, or
commodities, or to perform any services for their respective
employers, where an object thereof is (1) to force or require Cen-
tral Truck Lines, Seaboard Air Line Railroad, Florida East
Coast Railroad, Universal Carloading Co., or any other employer
or person to cease doing business with Herbert A. Spencer and
Lee K. Spencer, co-partners, doing business as U & Me Transfer,
Palm Beach Transfer and U & Me Transfer of Belle Glade, or
(2) to force or require the latter to recognize or bargain with
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union
No. 390, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the representative of
its employees unless and until certified as such representative .,in
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 869
accordance with the provisions of Section 9 of the National Labor
Relations Act.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS, LOCAL UNION No. 390, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA,
Union.
Dated---------------- By-------------------------------------
(Representative) ( Title)
Dated---------------- -By--------------------------------------
(HOWARD LASATER, Business Representative)
This notice must remain posted for 60 days from the date thereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the National Labor Relations
Act (61 Stat. 136), herein called the Act, against Teamsters, Chauffeurs, Warehouse-
men & Helpers, Local Union No. 390, International Brotherhood of Teamsters,
Chauffers, Warehousemen and Helpers of America, AFL-CIO, and Howard Lasater,
agent of Local Union No. 390, collectively referred to herein as the Respondent,
upon charges filed by Herbert A. Spencer and Lee K. Spencer, doing business as
U & Me Transfer and Palm Beach Transfer, sometimes referred to herein as the
Spencers or the Primary Employer, and upon complaint and answer was heard,
pursuant to due notice, in West Palm Beach, Florida, on October 2 and 3, 1956.
The allegations of the complaint, denied by the answer, are that the Respondent
violated Section 8 (b) (4) (A) and (B) of the Act.
All parties were represented at the hearing, participated therein, and were afforded
full opportunity to present and meet evidence, to engage in oral argument, and to
file briefs. All parties filed briefs.
From my observation of the witnesses, and upon the entire record in the case,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE PRIMARY EMPLOYER
• Herbert A. Spencer and Lee K. Spencer are copartners doing business as U & Me
Transfer and Palm Beach Transfer with their principal office and terminal in West
Palm Beach, Florida, where they are engaged in the local drayage of freight by
motor truck for, on behalf of, and under contract with, interstate motor carriers,
,railway carriers, and carloading companies. They also own and operate a termi-
nal located at Belle Glade, Florida, under the name of U & Me Transfer of Belle
Glade, which is not directly involved in the instant dispute. During the past 12
months the Spencers performed interlining services in the interstate transportation
of freight for which they received in excess of $100,000. I find that the Spencers
are engaged in commerce within the meaning of the Act and that it would effectuate
the policies of the Act to assert jurisdiction herein. See Pazan Motor Freight, Inc.,
116 NLRB 1568.
H. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union No. 390, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of
the Act.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The operations of the Primary Employer
The Spencers, father and son, are engaged in the local transfer and storage busi-
ness serving West Palm Beach and adjoining area under the trade names of U & Me
Transfer and Palm Beach Transfer. Although these firms , for reasons explained
later, operate under separate trade names they are actually a single integrated en-
terprise with centralized management and control, and the Spencers are found to
be a single employer within the meaning of the Act. The Spencers maintain an
office, warehouse, and terminal in West Palm in which both companies are based,
herein referred to as the main terminal. U & Me Transfer employs 14 drivers
and 2 helpers for its 15 trucks whereas Palm Beach Transfer employs 3 drivers and
1 helper for its 4 trucks. However, 1 driver and the helper of the latter firm spend
about 40 percent of their time working for U & Me Transfer. Practically every
day, however, some U & Me employees are used to assist in Palm Beach Transfer
work. On much less frequent occasions , Palm Beach drivers may be assigned to help
out in U & Me operations.
On July 9, 1956, following a labor dispute with the Spencers, the Respondent
placed pickets not only at the main terminal but also about 2 blocks away at the
freight terminal of the Seaboard Air Line Railroad and at the Florida East Coast
Railway Company freight terminal about 17 blocks distant. These pickets were
maintained daily Monday through Friday from July 9 to August 16, 1956, at both
freight terminals until restrained by a temporary injunction pursuant to Section 10
(1) of the Act. The picketing still continues at the main terminal. Since the legal-
ity of the picketing at the aforementioned freight terminals is in issue, the Respond-
ent contending that it constituted protected primary picketing, it is important that we
fully develop the relationship of the Spencers with the two railroad companies and
with several other companies doing business at these freight terminals, and with the
services performed by the Spencers for them at these locations.
At the main terminal, U & Me Transfer handles furniture and office moving as
well as a substantial amount of local freight deliveries and pickups for two over-
the-road trucking companies named Carolina Freight Carriers and Tamiami Freight-
ways. In addition to contracts with the last two mentioned companies for han-
dling all of their local freight from the main terminal, U & Me Transfer has similar
contracts with the Seaboard Railroad, the Universal Carloading and Distributing
Company, and the International Forwarding Company for handling all of their
local freight from the Seaboard terminal . For our purposes the use of the name
Universal will hereafter also stand for the International Forwarding Company since
its freight is comingled with that of Universal in freight cars consigned to West
Palm Beach. Universal, a nationwide freight forwarder, receives its carloads of
freight at the Seaboard freight terminal. Universal maintains its local office and
warehouse in the Seaboard freight warehouse which it shares with Seaboard, the only
other occupant. The only employees of Universal in this office consist of a man-
ager and his secretary. Employees of U & Me Transfer, consisting of casual daily
laborers not directly involved in the instant dispute , unload Universal's freight cars
for both local and suburban delivery by trucks. U & Me trucks handle the local
deliveries as well as local freight pickups for forwarding out of West Palm Beach
by Universal. Central Truck Lines which, like the Spencers, has its own terminal
in West Palm Beach, handles the suburban deliveries and pickups for Universal.
The unloading and dispatching of the suburban freight, however, is supervised by
U & Me's foreman. More about Central Truck Lines later. U & Me performs
the same services for Seaboard as it does for Universal except that Seaboard has
its own employees unload the freight cars and deliver the freight to the tailgates of
the U & Me trucks which are backed up to the warehouse shared by Seaboard
with Universal. The Seaboard employees, other than the employees of U & Me,
would appear to be the only employees of any employer using the freight terminal
as the situs of its operations.
In order to service Seaboard and Universal, U & Me has a foreman, named
Sheppard (who the record indicates is a supervisor under the Act), who spends from
60 to 70 percent of his time at the Seaboard terminal. Although U & Me rents
no space, its foreman is furnished a desk and telephone service by Seaboard and
Universal respectively.' The same arrangement exists at the Florida East Coast
Nelson Van Son, Universal's manager, described the foreman's duties as follows :
We prepare the car in a pouch which is the complete knowledge and tallies of the
shipments in. the car, and we give those to Mr. Sheppard the night previous to the
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 871
Railway freight terminal. Here, Palm Beach Transfer has contracts to handle the
local freight deliveries and pickups for the Florida East Coast Railway Company
and three other freight carriers who receive the bulk of their tonnage in freight
cars delivered to the FEC freight terminal.
In comparing the proportion of time worked by U & Me's 14 drivers, Lee Spencer
testified that an average of 4 drivers work on freight originating at the Seaboard
terminal in servicing the Universal and Seaboard contracts compared to an average
of 10 who work on orders originating from the main terminal? Averaging out the
work of these 14 drivers, all used interchangeably at both the main and Seaboard
terminals, and reducing it to a daily basis, Spencer figured that for every 2 hours
a driver spent at Universal and Seaboard he spent 3 or 4 hours at the main ter-
minal. Spencer further estimated that about 75 percent of the time of those drivers
working out of the Seaboard terminal would be in making deliveries and pickups
and the balance of 25 percent would be spent in work at the Seaboard terminal.3
All of the drivers who work at Seaboard, however, report in at the main terminal
morning and night and usually have their lunch there. None of U & Me's trucks
are parked overnight at the Seaboard terminal.
The situation at the FEC terminal is somewhat different. There, Palm Beach
Transfer has two drivers who are permanently assigned to work out of that ter-
minal, who report to the foreman there morning and night, and who normally get
paid there. Also the trucks used by these drivers are usually parked overnight at
the FEC terminal.4 However, usually once during each working day these drivers
in the course of their duties for Palm Beach Transfer would have occasion to visit
the main terminal. At most they would not fail to come to the main terminal
more than 1 day a week. Palm Beach Transfer's other driver and helper, who
work 40 percent of their time for U & Me Transfer, report in to the main terminal
morning and night. Palm Beach Transfer's foreman at the FEC terminal spends
about 80 percent of his time there supervising the handling of freight for the 4
companies under contract with Palm Beach Transfer, to wit, Republic Carloading
and Distributing Company, National Carloading and Distributing Company, Palm
Beach County Freight Receivers Association, and the Florida East Coast Railway
Company. The latter company supplies its own labor for unloading of its freight
car's arrival. At that point, he becomes responsible for all unloading of that car the
following morning, and dispatching, delivering of the freight throughout the city. He
also has the duties of dispatching freight to suburban carriers of which we have con-
nections with, for off-lying freight. On many occasions, he has the daily contact with
our consignees in the form of order-notify shipments, or sight-draft shipments, COD
shipments, the collection of money at the warehouse, the handling of delivery receipts
signed, any pertinent thing that affects the entire operation. We hold them directly
responsible.
The use put to the telephone supplied to U & Me by Seaboard was described by Lee
Spencer as follows : Seaboard has "numerous calls come into their front office wanting to
know when something can be delivered. They will refer those phone calls back to the ware-
house so that we can give them an intelligent answer, knowing when our trucks will be in
that particular area."
2 The tonnage of freight handled at the main terminal for the two freight carriers, Caro-
lina and Tamiami, is a little more than that handled for Seaboard and Universal. The
combined freight tonnage handled by the Spencers at both the Seaboard and FEC termi-
nals would appear to be at least 11/ times the freight tonnage handled at the main termi-
nal. The additional number of man-hours required for work originating out of the main
terminal is accounted for by furniture and office moving and other miscellaneous work.
3It is clear from the record that there are times when no employee of the Spencers would
be at the Seaboard terminal. For example, on Thursday mornings, U & lie's Seaboard fore-
man is at the FEC, terminal supervising the unloading and dispatching of 2 or 3 freight
cars for the A & P Company with the help of U & Me drivers and none of them ordinarily
would be occupied at the Seaboard terminal. However, the record also demonstrates that
while the amount of tonnage at Seaboard would fluctuate so that on a busy morning there
may be as many as 6 laborers unloading the freight cars and 6 drivers loading their trucks
and in the afternoon only a solitary driver for an occasional pickup or delivery, the fluctua-
tion was such that drivers could be there at any given time during the 8 a. in. to 5 p. M.
working day.
4 Palm Beach Transfer was originated by the Spencers in 1952 when their initial contract
with the Florida East Coast Railway Company stipulated that the delivery trucks would
bear a different name than the U & Be trucks which, as we have seen, were servicing Sea-
board, a competitor railroad.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cars, but Palm Beach Transfer supplies the labor for the three other companies.5
As at Seaboard, Palm Beach Transfer's contracts with these four companies provide
for the local delivery and pickup of freight. The 2 regular drivers for Palm Beach
Transfer spend about 25 percent of their normal working time in loading and un-
loading operations at the FEC terminal, about 15 percent at the neighboring port
of Palm Beach where Republic and National Carloading receive about half of
their freight cars, and the balance in delivery time. The extra driver and helper and
other U & Me drivers assigned to Palm Beach Transfer work would expend about
the same proportionate time. As at the Seaboard terminal, there are times when
no drivers of Palm Beach Transfer would be at the FEC terminal but again, like
at Seaboard, the fluctuation of work was such that either Palm Beach or U & Me
drivers could be at the FEC terminal at any time during the working day with no
set schedule so far as their coming and going were concerned. It will be remem-
bered that U & Me drivers would help out in Palm Beach operations practically
every working day.
The day laborers of the Spencers who unloaded the freight cars at both the FEC
and Seaboard terminals undoubtedly remained at each terminal so long as cars
remained to be unloaded and perhaps occasionally might be interchanged, but the
average length of time they spent at each terminal is not revealed by the record.
There would appear to be no need for their reporting to the main terminal and since
the record is silent on this point I find that normally they did not do so. The record
does show , however, that at the Seaboard terminal, where U & Me's foreman spends
60 to 70 percent of his time, other U & Me employees would be at that terminal 60
percent of the time that the foreman is there. The number of employees at that
terminal , Lee Spencer testified, was determined by "the amount of tonnage that is
going to be" there. "It could be as few as two or three and it could be as many as
twelve."
B. The Respondent's request for recognition
On Friday, July 6, 1956, Howard Lasater, business agent of the Respondent, told
Lee Spencer that the Respondent represented a majority of his employees and asked
him to sign a letter as an acknowledgment that the Union was the bargaining repre-
sentative of his employees. Spencer returned the letter without reading or signing
it and suggested that Lasater meet him at his lawyer's office. The meeting took place
there that day where Lasater again requested recognition with the claim that his union
represented a majority of the Spencers' employees but refused to present any proof
when it was requested. Counsel for the Spencers then stated that recognition would
not be granted without an NLRB election. During the conversation Lasater also
complained that Spencer had discharged "one of his union brothers."
C. The picketing
At 8 o'clock the following Monday morning, July 9, the Respondent placed pickets
at three places: (1) at the Spencers' main terminal , (2) at the entrance of the
private road leading into the Seaboard Railroad freight terminal, and (3) at the
entrance of the private road leading into the FEC Railway freight terminal. Each
5These three companies do not have warehouse space at the FEC terminal, although the
railroad does have a warehouse there, and their freight is unloaded on a roofed-over open
platform. When, on occasion, this freight has to he stored for future delivery it is taken to
the Spencers' warehouse at the main terminal and stored there. About 13 percent of their
freight is handled in this manner. It would appear that none of these three companies, for
which Palm Beach Transfer acts as local agent, has any employees at the FEC terminal.
The Florida East Coast Railway shares its warehouse with the Acme Fast Freight Company
which has 5 or G employees. These employees are possibly subject to the Railway Labor
Act. It would appear, therefore, that aside from the employees of the Spencers, the only
employers that used the FEC freight terminal as the base or situs of their operations
and had their own employees regularly working there were the Florida East Coast Railway
Company and the Acme Fast Freight Company. The Spencers have no contractual rela-
tionship with Acme and only occasional and infrequent business dealings with it. This
is not to say, of course, that other employees of local transfer or interstate carriers did not
regularly pick up and deliver freight at the FEC freight terminal. It is to say that these
employers did not have their headquarters at, or base their operations from, the FEC
terminal . Nor did they have employees, so far as the record reveals, regularly stationed
there. This observation applies equally to the situation at the Seaboard freight terminal.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 873
of these private roads provided the only means of ingress and egress to these termi-
nals. The picketing continued at the 2 railroad terminals Monday through Friday
of each week, from 8 a. m. to 4 p. m., whether or not any of the Spencer trucks were
loading or unloading, until August 15, 1956, when the picketing at these 2 terminals
ceased as a result of a temporary restraining order.
The picket signs bore the following legend:
U & ME
TRANSFER
and
PALM BEACH
TRANSFER
being
PICKETED
by
TEAMSTERS UNION
LOCAL 390
AFofL-CIO
When the picketing commenced, 4 of the companies under contract with the
Spencers did not permit their goods to be handled by the Spencers pending the out-
come of the dispute, but otherwise the Spencers went ahead with their normal oper-
ations at all 3 terminals. None of the Spencers' employees went out on strike.
Carolina Freight Carriers and Tamiami Freightways, 2 of the 4 companies referred
to above, were serviced by U & Me out of the Spencers' main terminal. Each of
thess two companies had labor agreements with the Respondent containing "hot
cargo" clauses excusing their employees from handling goods declared unfair or
crossing union picket lines. Whether the suspension of the use of Spencers'
employees by Carolina and Tamiami when the picketing commenced was caused by
these agreements is not clearly shown by the record. However, the General Counsel
does not appear to contend that any possible inducement or encouragement of the
employees of Carolina and Tamiami, some of whom may have had occasion to
deliver freight to the Spencers' main terminal, not to cross the Respondent's primary
picket line established there, was violative of the Act. Therefore, it is unecessary
to dwell on this point any further.
The other 2 companies, Universal Carloading and International Forwarding,
which I have considered as 1 company for the purpose of this report and shared Sea-
board's warehouse, did not have any agreement with the Respondent, at least insofar
as their West Palm Beach operations were concerned. Instead of using its own em-
ployees and trucks Universal has been using the services of Spencers' employees and
trucks for at least 5 years. Nevertheless, as soon as the picketing started, Universal,
on its own initiative through its local manager Nelson Van Son, instructed Lee Spencer
not to handle any more freight for them "until we found out what the situation was."
Van Son, at a meeting he initiated with Business Agent Lasater on the first morning of
the picketing, asked Lasater what position he was taking in regard to Universal.
Lasater replied that he was there to organize U & Me Transfer and as long as Uni-
versal associated itself with U & Me it would be picketed. Van Son asked, "Are you
picketing Universal?" to which Lasater replied, "No; U & Me Transfer."
Following several discussions with Lasater, Universal arranged to have its local
deliveries handled by the Wilkinson Transfer Company, a nonunion cartage company,
which had its own siding on the Seaboard tracks about 10 blocks from the Seaboard
freight terminal. It will also be remembered that Central Truck Lines serviced all
of Universal's suburban freight, and like the Spencers had its own terminal in West
Palm Beach. Central had an agreement with the Respondent containing a "hot
cargo" clause. On the morning the picketing commenced, Lasater, pursuant to the
contract, notified Thomas Chapin, manager of Central, in the presence of George
McMurtry, Respondent's steward for Central's employees, "that U & Me Transfer
and Palm Beach Transfer were being picketed and that [his] employees would now
be allowed to handle any of the freight where those two particular companies were in-
volved, either to receive or to deliver to those places; and that any freight that was
handled by these particular organizations was declared unfair goods." Chapin specif-
ically inquired about Universal's suburban freight and was informed by Lasater "that
since U & Me performed the unloading service for that organization, that their
goods would be declared unfair and . it was that position that was being picketed
and . [his] drivers would not be allowed to go into that warehouse." Chapin
reread his contract with the Respondent and informed Lasater that he would honor
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-the contract. "I had no'alternative other than to live up to what was in black and
white," testified Chapin.6
The Respondent agreed to permit Central's drivers to cross the picket line to pick
up suburban freight that had already been unloaded and was in Universal's warehouse
ready for delivery. Loaded freight cars of suburban freight on hand were switched
to Wilkinson's terminal and handled by Central from there. Universal arranged to
have future suburban freight switch to Fort Lauderdale and handle from there. How-
ever, during the picketing period of July 9 to August 15, Central continued to pick
up some Universal freight at Wilkinson's terminal. About August 1 and while the
picketing was still continuing, Universal returned to its former system of having its lo-
cal freight unloaded at its Seaboard warehouse, still using, however, the services of
Wilkinson's employees rather than those of U & Me Transfer. When the temporary
injunction issued on August 15, and the picketing ceased at the Seaboard and FEC
terminals, Universal lifted its self-imposed boycott of Spencers' services and resumed
its normal business relationship with U & Me Transfer. Central did likewise.
Before discussing the evidence bearing on the Respondent's alleged inducement
and encouragement of Central's employees not to cross the picket line, additional facts
bearing on the position taken by Central when the "hot cargo" contract was invoked
by the Respondent should be noted. In addition to handling the suburban freight for
Universal at the Seaboard terminal, Central also picked up certain freight from Repub-
lic and National at the FEC terminal on an average of about twice a week. When
the picketing started at the FEC terminal, Central ceased handling Republic and Na-
tional freight even though Lasater had not specifically referred to these concerns, be-
cause, as Chapin testified, "Palm Beach Transfer handled Republic and National, the
same as U & Me Transfer [handled] Universal, and anything they handled was
under specific instructions as being unfair." 7 On the other hand, Central continued
to handle freight for the Acme Fast Freight Company. It will be recalled that Acme
was the only firm, in addition to the FEC Railway, which occupied warehouse space
at the picketed FEC freight terminal, and it employed 5 to 6 employees. Central
also made deliveries for Acme the same as it did for Universal, National, and Repub-
lic. Yet Central drivers crossed the picket line at the FEC terminal while it lasted
because, as Central's manager testified, Acme "wasn't involved in the labor dispute
even though they were in the warehouse area where people were being picketed. So
9 Pertinent provisions .of the "hot cargo" clause follow :
It shall not be a violation of this Agreement and it shall not be cause for discharge if
any employee or employees refuse to go through the picket line of a Union or refuse to
handle unfair goods. Nor shall the exercise of any rights permitted by law be a viola-
tion of this Agreement. The Union and its members, individually and collectively, re-
serve the right to refuse to handle goods from or to any firm or truck which is en-
gaged or involved in any controversy with this or any other Union ; and reserve the
right to refuse to accept freight from, or to make pickups from, or deliveries to
establishments where picket lines, strikes, walkout or lockout exist.
9 * ! a i O
The Union shall give the Employer notice of all strikes and/or the intent of the Union
to strike any Employer and/or place of business, and/or the intent of members' refusal
to handle unfair goods.
7 On this point Chapin further testified
A. I was informed by Mr. Lasater that anything handled by . . . U & Me Transfer
or Palm Beach Transfer was declared as unfair, and it was a matter of knowledge to
myself that Universal Carloading freight, National Carloading freight and Republic
Carloading freight-it was handled by either one or two of those organizations at all
times. Therefore, if they handled it, it was unfair. We couldn't move it according
to the contract. As far as laying out the company names, the only company name
that was given was Universal Carloading as such. They were the only ones brought
into it directly.
a a • a a s a
Q. Then at the terminal, you wouldn't handle Universal because they did business
with U & ale and Palm Beach Transfer, but because there was a picket line?
A. No, sir ; the reason was because U & Me Transfer had a contract to unload
Universal Carloading freight and anything they handled was unfair goods and until
they quit handling it, as far as I was concerned, we could not go back in there.
Q. Then you assume and I assume that Wilkinson in handling Universal it was no
longer unfair goods and, therefore, you picked up Universal's goods, is that correct?
A. That's correct, sir.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 875
far as I was concerned, they could have been 10 miles away." It is apparent that
Central drivers, members of the Respondent, had the approval of the Respondent in
crossing their own union's picket line to handle the freight of an employer not in-
volved in the dispute.
D. The inducement and encouragement of Central's drivers
On Saturday, July 7, 1956, at what Business Agent Lasater testified was an
informal meeting of some of the members of the Respondent, including some
employees of the Spencers and of Central Truck Lines, Lasater said that picketing
of U & Me and Palm Beach Transfer would start on Monday, July 9. In a sworn
statement given to a field examiner of the Board on July 19, 1956, which was
received in evidence for all purposes, Lasater stated in part, "I told the members
present that I was going to picket U & Me Transfer and Palm Beach Transfer
Company and that I did not want them crossing the picket line. It states in all
of their contracts that they do not have to cross a picket line or handle unfair goods."
On August 13, Lasater executed an affidavit which was submitted to the Federal
district court in reply to the General Counsel's petition for a temporary restraining
.order, in part "to clarify the statement" given to the field examiner "because a close
examination of the statement . . . credits me with language I do not recall and
seems to convey a message I have no intention of conveying." This affidavit then
refers to a meeting Lasater called on July 11, 1956, for the purpose of obtaining
financial contributions and men to participate in the picket line. Neither he nor
any other official of the Respondent, Lasater swore, "requested, ordered or instructed
any members present at the [July 11] meeting to refrain from handling the feight
from the U & Me Transfer and Palm Beach Transfer or refrain from crossing the
picket line set up."
It should be noted that in this affidavit Lasater refers to what occurred at a
meeting on July 11, 1956. He testified that he had his recollection refreshed as
to what occurred there by reading the minutes of that meeting. But Lasater care-
fully refrains in this affidavit from repudiating his earlier sworn statement which
refers to a meeting held on July 7, 1956, and which Lasater orally testified did
take place on that day. It being an informal meeting, Lasater testified that no
minutes would be or were kept of such a meeting . Furthermore, George McMurtry,
steward of the Respondent at Central Truck Lines and whose duties included the
transmission of instructions from Business Agent Lasater, also gave a sworn state-
ment to the same Board field examiner on July 19, 1956. In it McMurtry partially
corroborates the statement sworn to by Lasater on the same day: "I told all of the
employees of Central Truck Lines that U & Me Transfer and Palm Beach Transfer
was declared unfair freight and that they were not to handle this freight or cross the
,picket lines that were set up. The employees of Central Truck Lines were also told
this at a union meeting the night before the picket lines went up. I told the
employees on the morning of July 9, 1956."
McMurtry, like Lasater, tried to avoid the effect of the aforementioned statement
by executing an affidavit on August 11 "to clarify the statement given by me on
July 19 . because [it] indicates that I signed a sworn statement which credits
me with language I do not recall and seems to convey a message I have no intention
of conveying. . The only union meeting on or about the dates of this labor
;dispute occurred on the evening of July 11, 1956. " 8 And no request order
or instruction to refrain from handling the freight of the primary employer or to
refrain from crossing the picket lines was made by anyone at this meeting. Never-
theless, in the same statement, McMurtry admits that he informed Central's em-
ployees of the labor dispute between the Spencers and the Respondent and that
pursuant to "Article XI of the Collective Bargaining Agreement existing between
our employer and our union, we could exercise our rights according to our contract."
Furthermore, in his oral testimony before me, McMurtry admitted telling the
employees "that according to our contract" they had a right "individually or collec-
tively" not to cross the picket lines." 9
"Despite this language McMurtry in his oral testmony admitted attending another union
meeting that took place during the week before the picketing began on July 9 and which
I find to be the same meeting of July 7 described by Lasater in both his initial sworn state-
ment and in his oral testimony. Lasater also placed McMurtry at the July 7 meeting.
'It will be recalled that McMurtry was present when, on the morning the picketing
commenced, Lasater informed Manager Chapin that pursuant to the contract his "em-
ployees would not be allowed to handle any of the freight" of the primary employer.
Chapin believed it unnecessary to inform his employees of his decision not to require
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both Lasater and McMurtry were each given a copy of his statement by the field
examiner but never attempted to reach any representative of the Board for the
purpose of "clarifying" it even though Lasater claims he discovered the erroneous
import of his statement a day of two after it was executed. In fact, McMurtry had
such an opportunity when, about a week after he gave the field examiner the state-
ment, it was reread to him word for word by a Board attorney who wanted to make
sure the "affidavit was correct as stated." McMurtry suggested no corrections.
I conclude that the sworn statements voluntarily given by Lasater and McMurtry
to a Board field examiner on July 19 give a substantially true picture of the events
depicted therein. They contain a clear and unambiguous narration of facts which
are substantially consistent throughout and support each other. They were given at
a time when the memory of the occurrences was fresher in the minds of Lasater and
McMurtry than when they executed their "clarifying" affidavits for their counsel on
August 11, and which, as set forth above, do not really repudiate their earlier sworn
statements. I therefore find that on July 7, 1956, Lasater told employees, of Central
Truck Lines, among others, that be "did not want them crossing the picket line" that
was to be established on July 9. That Lasater gave such advice to Manager Chapin
when he invoked the "hot cargo" agreement is undisputed. While at one time Lasater
could have with impunity requested the employees of a contracting neutral employer
to refrain from handling "unfair" goods or to refrain from crossing the picket line of
a primary employer because of the existence of a "hot cargo" agreement with the
neutral employer,10 he could not do so as the law stood on July 7, 1956, without his
union risking a possible violation of the Taft-Hartley Act." While Lasater's under-
standing of the technicalities involved appears to have improved on August 11 when
he executed his "clarifying" affidavit, this record clearly demonstrates that he was not
that well versed in the niceties of the law on July 7 or July 19.12
E. Concluding findings
The first issue to be determined is whether the Respondent's picketing at the Sea-
board and FEC freight terminals, in the light of the facts found above, was violative
of the Act as contended by the General Counsel or protected primary picketing as
contended by the Respondent. Before analyzing the meaning of the facts it is per-
haps best to get some idea of how the Board has dealt with the difficult problem of
drawing the line between permissible primary action and proscribed secondary action
where the primary and secondary employers are engaged in work at a common site.
them to handle Spencer freight but assumed that McMurtry, the steward, would do so.
McMTurtry's duties as steward included the handling of grievances and as he put it, "seeing
that our contract is abided with." My reconstruction of the timing of the events is that
McMurtry's advice to the employees of their contractual right not to cross the picket lines
in question or to handle Spencer freight cane after Chapin had agreed to abide by his
contract. In'view of my finding hereinafter made as to what Lasater said to the Central
employees at the July 7 union meeting it is really immaterial whether I find that McMurtry
was carrying out Lasater's instructions to his fellow employees or whether he was merely
informing then of Chapin's decision to honor the agreement. I do believe, however, that
he was merely reflecting Chapin's decision since the employees already knew as a result
of the July 7 union meeting that Lasater did not want them to cross the picket lines
because of Central's "hot cargo" agreement.
10 See Rabouin, d/b/a Conway's Express, 87 NLRB 972, 982, enfd. 195 F. 2d 906, 916
(C. A. 2).
See Sand Door and Plywood Co., 113 NLRB 1210, reversing the Conway's Express
doctrine.
12 When I received McMurtry's initial sworn statement in evidence I informed the
parties that I was reserving ruling on whether I was receiving it for all purposes so that
it could be used as the basis for making affirmative findings thereon as well as for im-
peachment purposes. I hereby receive it in evidence without any limitation on its use.
I find that McMurtry's duties as steward not only included responsibility for the proper
application of the Central contract as it affected the rights and obligations of his fellow
employees but also included the transmission of instructions from the Respondent to the
Respondent's members. Furthermore, by his own admission, McMurtry also assisted
Lasater in organizing the Spencer employees. I find that McMurtry is an agent of the
Respondent who clearly acted within the scope of his authority and that his sworn
statement is admissible for all purposes as an admission against interest. See Trafford
Coach Lines, 99 NLRB 399; County Electric Co., Inc., 116 NLRB 1080; Southwestern
Motor Transport, Inc., 115 NLRB 981.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 877
Section 8 (b) (4) (A) and (B) of the Act, in broad terms, interdicts picketing
designed to induce or encourage employees to engage in a concerted refusal in the
course of their employment to handle goods, where an object of such picketing is (a)
to force or require any employer to cease handling such goods, or to cease doing busi-
ness with any other person or (b) to force'an employer other than the one being
picketed to recognize a labor organization as the representative of its employees un-
less that labor organization has been certified by the Board. In applying this portion
of the Act, the Board has attempted to strike a balance between the "dual congres-
sional objectives of preserving the right of labor organizations to bring pressure to
bear on offending employers in primary labor disputes and of shielding unoffending
employers and others from pressures and controversies not their own."i3 In seeking
to give effect to this practical compromise, the Board has held that whereas, as a
general rule, picketing away from the situs of the primary employer and at the situs
of some other employer's operations where none of the primary employer's employees
are working comes within the prohibition of Section 8 (b) (4) (A) and (B), picketing
at the situs of the primary employer's operations does not come within that prohibi-
tion, even though the primary appeal may have some incidental effect on employees
of neutral employers.
There are, however, certain factual situations where the primary and secondary
employers are engaged in work at a common site in which application of this general
principle might foreclose the right of a labor organization to bring pressure to bear
on the primary employer. In such situations, the Board permits picketing at the
premises of secondary employers when the union cannot effectively or adequately
picket the primary employer's employees for the purpose of putting pressure on the
primary employer; however, to achieve this permission, the union must meet certain
conditions calculated to make it amply clear that the picketing is directed against the
employees of the primary employer and not the employees of the secondary employer.
The criteria for determining when picketing at a common situs will be considered pri-
mary and lawful were set forth in Moore Dry Dock Company, 92 NLRB 547, 549.
There the union had a dispute with the owner of an oceangoing ship undergoing re-
pairs on the premises of a neutral employer. The Board, taking into account the fact
that the primary employer in that case had no fixed place of business in the area at
which the union could picket, concluded that such picketing is primary and lawful
if it meets all of the four following conditions:, (a) The picketing is limited to times
when the situs of the dispute is located on the secondary employer's premises; (b) at
the time of the picketing the primary employer is engaged in its normal business at
the situs; (c) the picketing is limited to places reasonably close to the location of the
situs; and (d) the picketing discloses clearly that the dispute is with the primary
emoloyer.14
But, as other Board cases have made evident, the Moore Dry Dock criteria pre-
suppose a factual situation where the secondary employer at whose premises picketing
occurs "is harboring the situs of the dispute." That has been interpreted as meaning
that the situs of the dispute is more than a transitory one: it must, in actual effect, be
a place at which the primary employer's employees involved in the dispute are regu-
larly engaged in employment on the secondary premises so that they must be reached
there if they are to be reached at all. And so the Board has developed the doctrine,
first announced in Washington Coca Cola Bottling Works, Inc., 107 NLRB 299, that
the Moore Dry Dock criteria would not be applied to those factual situations where
the premises of the secondary employer could not be said to harbor the situs of the
dispute and where the primary employer has a permanent place of business in the
locality at which the union could effectively or adequately publicize its labor dis-
pute. It was natural, of course, that the Washington Coca Cola doctrine would, by
its very nature, affect the drivers of trucks who spent some of their time away from
the premises of their own employers unloading supplies and materials at the premises
of secondary employers. Picketing occurred in these cases at the secondary premises
even though the primary employers had permanent places of business in the area.15
11 N. L. R. B. v. Denver Building and Construction Trades Council , et al., 341 U. S.
675, 692.
14 See also the earlier case of Schultz Refrigerated Service, Inc., 87 NLRB 502, before
the Board formulated these standards, where the union picketed the primary employer's
trucks while they were engaged in making deliveries but where the primary employer had
no fixed business place in the area where its employees could be effectively apprised of
the labor dispute.
15 Thurston Motor Lines, Ine., 110 NLRB 748; Associated General Contractors of
America, Georgia Branch, 110 NLRB 2192; National Trucking Company,111 NLRB 483;
Goodyear Tire & Rubber Company, 112 NLRB 30; Cisco Construction Company, 114 NLRB
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So it was that in Washington Coca Cola the union picketed the main plant of that
company from the first day of the strike and the drivers involved entered and left.
that plant at least four times each day. The Board felt that by limiting the union's
picketing to the main plant it would not unduly circumscribe the union to its right'
to picket effectively.
However, it is also clear that the Board has not restricted the application of the.
Washington Coca Cola doctrine to the so-called ambulatory picketing situations..
In Otis Massey Company, Ltd., 109 NLRB 275, the dispute concerned only the
truckdrivers and warehousemen of that company but the union picketed not only
the warehouse where the truckdrivers and warehousemen regularly worked, but
also three construction projects only occasionally visited by the truckdrivers and
where Otis Massey had subcontracts and employed craftsmen. The craftsmen,.
although regularly employed at the common site, were not involved in the dispute
and rarely went to the warehouse. For this reason the Board held that the con-
struction projects did not harbor the geographic situs of the labor dispute and
therefore picketing there was violative of the Act. The sole situs of the dispute,
the Board held, was at the warehouse where the employees involved in the dispute
were regularly employed.is
There are two more cases involving nonambulatory picketing, difficult to dis-
tinguish in principle but somewhat distinguishable on the facts, that must now be
examined. In W. H. Arthur Company, 115 NLRB 1137, the Trial Examiner found
that the picketing was unlawful because not conducted according to the criteria
enunciated in Moore Dry Dock. The Board found the picketing unlawful, how-
ever, under the rule laid down in Washington Coca Cola and specifically reversed
the Trial Examiner's reliance on Moore. Dry Dock. Arthur, a roofing company,.
had employees who worked interchangeably at Arthur's premises and at other job
sites. At the time of the dispute with the union, Arthur's employees were rebuild-
ing roofs on buildings at the neutral employer's plant. However, they daily reported
for, and returned from, work at their own employer's (Arthur's) premises. The
Board held that since the primary employer had a permanent place of business at
which the union could effectively publicize its dispute, the picketing was illegal even
if it met all conditions prescribed under Moore Dry Dock.17
On the other hand, bearing interesting comparison with W. H. Arthur is Pitts-
burgh Plate Glass Company, 110 NLRB 455, where the opposite conclusion was.
reached on nearly similar facts. There, the primary employer had glaziers who
were making installations at various construction sites and Pittsburgh had a per-
manent and extensive business establishment within the area. This time the Trial
Examiner applied the Washington Coca Cola doctrine, reasoning that the construction
site picketing must necessarily be for the object of reaching employees of secondary
employers and not of engaging in legitimate primary picketing since the union
could picket effectively at Pittsburgh's permanent business establishment. The
Board did not agree. "The Pittsburgh plant," the Board declared, "was located
27 ; Southwestern Motor Transport Inc., 115 NLRB 981 ; Associated General Contractors
Employers Association of Omaha, Nebraska, Inc., 116 NLRB 461.
18 However, the Fifth Circuit Court of Appeals in denying enforcement of the Board's
Decision and Order, N. L. R. B. v. General Drivers, etc. (Otis Massey Co.), 225 F. 2d
205, certiorari denied 350 U. S. 914, said :
no warrant exists either in the language of the statute or the authorities cited . . .
for empowering the Board, under guise of fact-finding, to fix the "situs" of a dispute
at only one of a primary employer's numerous business activities, thereby isolating
other employees of that same primary employer from exercising their statutory right
under Section'? . . . to engage in mutual aid and protection and make common cause,
with their co-workers.
(Compare with the fact that here the casual laborers employed at both the Seaboard and
FEC freight terminals worked only at those terminals and did not report to the main
terminal, and as in Otis Massey, these employees were not involved in the dispute between
the Spencers and the Respondent.)
The Board has not acquiesced in the holding of the court in Otis Massey nor in a case
of similar import, Sales Drivers, etc. (Campbell Coal Co.) v. N. L. R. B., 229 F. 2d 514,,
cert. denied 351 U. S. 972. See the Board's Supplemental Decision and Order on the
court's remand in the same case, 116 NLRB 1020. The situs of dispute doctrine is thus
binding here.
1% Cf.' Barry `Controls, Inc., 116 NLRB 1470, where the Trial Examiner was also re-
versed by the 'Board insofar as, under the factual situation there disclosed , he relied on.
Moore Dry Dock rather than Washington Coca Cola.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 879 ,
in a wholesale and industrial area, approximately 21/2 miles from the center of town,
and was picketed only a small part of the time of the strike. Moreover, and more.
serious, the glaziers were at the main establishment only twice a day at most, report-
ing for work and checking out, and sometimes not at all." The Board held that,
the union's right to picket effectively would be unduly circumscribed if the Wash-
ington Coca Cola doctrine was applied to these facts. In also holding that the
construction site harbored the situs of the dispute the Board, in a reference to its
earlier Otis Massey decision, said, "Implicit in that decision was our view that the.
Washington Coca Cola doctrine would not be applied where the premises of the
secondary employer harbor the situs of the dispute between the union and the
primary employer as in the instant matter."
The case at bar has some factual resemblances to both the Arthur and Pittsburgh
cases and some features unlike either. Like in Arthur, the U & Me transfer
employees worked interchangeably at both the main terminal and the Seaboard
terminal and checked in morning and night at the main terminal. However, Palm
Beach Transfer had two employees permanently assigned to the FEC terminal who
did not check into the main terminal at all although their duties took them there
almost every day. More important, however, is the fact that the Spencers are regu-
larly engaged in business at both terminals, for at least 4 years at the FEC terminal
and for a longer period of time at Seaboard. It should not be overlooked that
in Arthur and Pittsburgh, the primary employers were engaged only temporarily in
business on the premises of the secondary employer. This is also true of the many
cases cited above where the primary employees either delivered or unloaded mate-
rials on neutral premises for short periods during their daily working time, or, as
in the construction industry, remained on the secondary premises only so long as
their particular job remained unfinished.
That is not true of the Spencers. They were permanently and regularly engaged
in business at both the Seaboard and the FEC terminals. They had employees
there, such as the laborers, who unloaded the freight cars and who, though perhaps
at times interchanged between both freight terminals, apparently did not report to
the main terminal. The Spencers had a foreman permanently assigned to each ter-
minal, where each foreman spent practically all of his time supervising the unload-
ing and dispatching of freight not only for the local deliveries made by Spencers'
employees but also for the suburban deliveries made by employees of another trans-
fer company (Central). Each foreman was furnished with a desk and telephone
with complete responsibility, as Manager Van Son of Universal described it, for
being in "daily contact with our consignees in the form of order-notify shipments,
or sight-draft shipments, COD shipments, the collection of money at the warehouse,
the handling of delivery receipts signed, any pertinent thing that affects the entire
operation." Telephone calls from customers respecting the delivery and pickup
of freight were referred at each terminal to the Spencer foreman in charge there.
Crucial here, as I see it, is that this work was being performed every working
day not at the Spencers' main terminal but at each of the freight terminals just
described. The Seaboard and FEC railroads and the other five freight forwarders
under contract with the Spencers held out to the public, in effect, that their local
freight delivery needs would be handled by the Spencers at each of the freight
terminals in question, not at the main terminal . Remember that FEC insisted on the
Spencers using a different trade name than the one used for servicing Seaboard, its
competitor. The right to picket effectively includes not only the union's right to
appeal to the particular employees involved but also the right to publicize the
dispute to the general public at the place or places where these employees are
regularly employed and where their services are regularly used by the public.
As we have seen, I have treated the Spencers as a single employer, as we must
under the Act, despite their doing business under two different trade names. If we
would consider them as separate for the moment, it would become crystal clear, I
believe, that the FEC terminal harbored the situs of the dispute so far as the Palm
Beach Transfer operations are concerned. This firm was originated solely for the
purpose of handling freight out of the FEC terminal, and continued to do so, having
nothing to do with the services performed by U & Me Transfer at the main terminal
except when the occasion arose to store Palm Beach Transfer freight at the main
terminal warehouse. The Spencers did not choose to operate by way of a separate
firm at the Seaboard terminal , however, and used the same employees to work
both there and at the main terminal . But it would be entirely unrealistic for me
to say that because of this difference the Seaboard terminal did not at least, equally
with the main terminal , harbor part of the situs of the dispute, or that we can
isolate the Seaboard from the FEC operations. As we have seen , the Spencers for,
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years have been transacting business of a permanent nature regularly and contin-
ually at the Seaboard terminal to the knowledge of the public that used the services
performed there, with a permanent foreman and a crew of laborers, and with
drivers who not only worked interchangeably at both terminals but who also regu-
larly helped out practically every day at the FEC terminal. The Respondent's
object was to reach all of Spencers' employees where they were regularly employed,
not just some of them, along with an adequate opportunity to publicize the dispute
to the general public that utilized the services of these employees at these terminals.
To me, this factual situation presents a stronger warrant for finding that the Sea-
board and FEC terminals harbored part of the situs of the dispute than did the
situation in the Pittsburgh case, and I therefore find the Washington Coca Cola
doctrine inapplicable for the reasons indicated above. Accordingly, it is incumbent
upon us now to examine the criteria established by Moore Dry Dock and see
whether the picketing at the Seaboard and FEC terminals was conducted in a
manner clearly disclosing that it was directed only against the Primary Employer.
I find, as the facts set forth above demonstrated, that the timing and location
of the picketing and the legends on the picket signs were tailored to reach only
Spencers' employees and not those of neutral employers. In reaching this conclu-
sion, I have weighed the argument of General Counsel that "even if this were com-
mon situs picketing" it "occurred whether or not trucks and employees of U & Me
or Palm Beach Transfer were present." That, as I have found, is true, but what
is not true is the assumption that it was the trucks, rather than the secondary
premises, which harbored the situs of the dispute. As the record fairly makes
clear, the reverse is the case. The Respondent made no attempt to follow the trucks
while they were making deliveries or pickups and engaged in no ambulatory picket-
ing. It did not even picket at the nearby port of Palm Beach, where Spencers'
employees handled about 50 percent of the freight tonnage of the Republic and
National Carloading companies. Nor did the Respondent attempt to enlarge the
area of the dispute by picketing at the FEC passenger station where U & Me has the
baggage concession. Instead, the Respondent peacefully picketed at the freight
terminals where, as already appears, the Spencers were regularly and continually
engaged in business of a substantial and permanent nature.
The Respondent made no attempt to induce or encourage any employees of the
neutral employers who shared or occupied the common situs with the Primary
Employer at both the Seaboard and FEC freight terminals, other than by picketing
with signs making clear that its dispute was with the Spencers. So far as the record
shows, the only employees other than those of the Spencers who were working
regularly at the Seaboard freight terminal were those of the railroad, not including
the secretary working for Manager Van Son of Universal. At FEC, we find only
FEC employees and the 5 or 6 employees of Acme Fast Freight which shared the
FEC's warehouse. Central Truck Lines, which had its own separate terminal
geographically separated from the Seaboard and FEC terminals, regularly handled
freight for Acme, as previously noted. Nevertheless, Central continued to handle
Acme freight because, as Central's Manager Chapin testified, Acme "wasn't involved
in the labor dispute even though they were in the warehouse area" being picketed.
It seemed entirely clear to Chapin, at least, that the Respondent's conduct invited
action at the common situs only insofar as it affected services being performed there
by Spencers' employees.18
There is some testimony given by both Manager Van Son of Universal and
Manager Chapin upon which the General Counsel relies as proof of the Respondent's
alleged illegal object to involve employees of neutral employers. Universal, it will
be recalled. shared warehouse space with Seaboard, and Spencers' employees
unloaded Universal's local and suburban freight, the local freight being delivered by
Spencers and the suburban freight by Central. Universal initiated a self-imposed
embargo of Spencers' services as soon as the picketing commenced and, with the
consent of the Respondent, made arrangements to have the Wilkinson Transfer Com-
pany take over in place of the Spencers. A careful reading of both Van Son's and
Chapin's testimony as to their conversations with Lasater does not, in my opinion,
18 The facts here are in significant contrast with those in Richfield Oil, 95 NLRB 1191,
where the union also picketed at work projects of the primary employer located on the
premises of the secondary employer. But there the union, despite the fact that its'picket
signs correctly identified the primary employer as the object of its picketing, stopped
trucks with deliveries destined for the secondary employer, thereby clearly revealing, as
the Board found, that an object of the union was to disrupt the business of the neutral
or secondary employer. See also Hoosier Petroleum Company, Inc., 106 NLRB 629, and
Professional and Business Men's Life Insurance Company, 108 NLRB 363.
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS 881
bear out the General Counsel's contention . I have already alluded to Chapin's
clear understanding of the Respondent's object in its dispute with the Spencers.
Thus, because the Respondent' s position had been made clear, Chapin had no hesi-
tancy about doing business with Wilkinson, a nonunion cartage company, when
this firm's employees took over the work the Spencer employees had been perform-
ing for Universal. And when Van Son, according to his own testimony, asked
Lasater if the Respondent was picketing Universal, Lasater replied, "No; U & Me
Transfer." 19 Other than the inducement of Central's employees, an issue to be
treated immediately afterwards, substantial evidence is lacking that the Respondent's
object in picketing at the Seaboard and FEC terminals was to enlist the aid of neutral
employers through their employees, other than by the means employed in tradi-
tional primary picketing. There is no evidence that the Respondent communicated
with any of the neutrals' employees regularly employed at each freight terminal
or with any neutral employees engaged in making deliveries there, with the sole
exception of employees of Central Truck Lines.20
We now come to the issue upon which the General Counsel heavily relies-mainly,
the inducement and encouragement of Central's employees. It will be remembered
that at the informal union meeting of Saturday, July 7, Business Agent Lasater
told employees of Central Truck Lines, among others, that he "did not want them
crossing the picket line" that was to be established on July 9 because of Central's
"hot cargo" agreement with the Respondent. On Monday morning, July 9, and
apparently before Central's employees had occasion to cross the picket line just
established, Lasater gave notice to Chapin, as required by the contract, that he
was invoking the "hot cargo" agreement against the Spencers. This was in the
presence of Union Steward McMurtry, an employee of Central.21 Chapin agreed
to abide by the agreement and from then until August 15, when the picketing at
the Seaboard and FEC terminals was restrained, none of the Central employees
were given any assignments to pick up or deliver freight handled by Spencers'
employees. As pointed out earlier, however, they did cross their own union's
picket lines to pick up or deliver freight on the common premises not handled by
Spencers' employees.
The General Counsel invokes the doctrine of Sand Door and Plywood Co., 113
NLRB 1210, overruling, insofar as inconsistent, Conway's Express, 87 NLRB 972.
and Pittsburgh Plate Glass, 105 NLRB 740 (not the same Pittsburgh case referred
to earlier). There the Board held that the union violated the Act because, "regard-
less of the existence of a `hot cargo' clause, any direct appeal to employees by a
union to engage in a strike or concerted refusal to handle a product is proscribed by
the Act when one of the objectives set forth in Section 8 (b) (4) (A) is present."
And this is so, the Board elaborated in American Iron and Machine Works Come
party, 115 NLRB 800, irrespective of whether or not the employer acquiesces in
the union's demands that the employees refuse to handle the "hot" goods. In Sand
Door, the Board also said, "The employer, but not the union, may instruct his
15 Chapin also knew that the Respondent was not picketing Universal as his testimony
shows:
TRIAL EXAMINER: Did [Lasater] say that Universal was being declared unfair?
The WITNESS: No, their warehouse was being picketed because U & Ale's men
were in there working and also their goods were unfair because U & Ale Transfer
men,had unloaded the cars.
20 The Respondent, I am persuaded, made a "bona fide effort to minimize the impact of
its picketing upon the operations of the neutral employers" sharing the common situs,
within the meaning laid down in Retail Fruit & Vegetable Clerk's Union, etc., 116 NLRB
856. In explicating still further its standards for common situs picketing, the board
there stated that the picketing union must make a "bona fide effort to minimize the
impact of its picketing upon the operations of the neutral employers" that share the
common premises . Even if this case be considered as a more stringent application of the
Moore Dry Dock criteria, it does not alter my opinion that it was not the object of the
Respondent to involve the common situs neutral employers. Whatever involvement was
caused was merely an unavoidable byproduct of legitimate primary picketing.
2L See Firchau Bros. Logging Company, 115 NLRB 711, where the Board refused to
predictate 8 (b) (4) (A) liability on what the employees of the secondary employer over-
heard their business agent say to that employer in a case involving the refusal of these
employees to handle so-called "hot" logs. Here, McMurtry already knew of Lasater's
request to honor the Spencer picket line , for he was present at the July 7 union meeting.
See also footnote 9, supra.
476321--58-vol. 119-57
882 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to cease handling goods sought to be boycotted. Until the employer.
instructs his employees that they need not handle the `unfair' product a strike or
concerted refusal to handle such goods constitutes 'a strike or concerted refusal in
the course of employment' to handle the goods within the meaning of Section 8
(b) (4) (A).1122
If the inducement and encouragement of Central's employees involved the refusal
to handle goods at Central's premises then it might well be that the Respondent
violated Section 8 (b) (4) (A) and (B) of the Act, following the doctrine enunciated
in the Sand Door case. In the "hot cargo" cases that I have examined, the refusals
to perform services or handle goods occurred on the premises of the neutral employer.
The situation might well be different, however, if all that Lasater was trying to
do here was to induce Central's employees not to cross what I have already found
to be a primary picket line at the Seaboard and FEC terminals. While the induce-
ment to refuse to handle goods at Central's premises would be secondary in scope,
an inducement not to deliver or pick up Spencer-handled goods at the Seaboard
and FEC premises would be only an incident of legitimate primary activity. Cf.
N. L. R. B. v. Rockaway News Supply Co., 345 U. S. 71, and Meier & Pohlmann
Furniture Co. v. Gibbons, 233 F. 2d 296 (C. A. 8), cert. denied 352 U. S. 879.
Illustrative of the above distinction are two cases, neither of which involves
inducement or encouragement inspired by "hot cargo" agreements as in the case
at bar, agreements that the Board has refused to find invalid. In Interborough
News Company, 90 NLRB 2135, Interborough, the primary employer, owned and
operated numerous newsstands located in the passenger stations of a neutral
employer, the Independent Subway System of the City of New York. The striking
union picketed not only at Interborough's principal place of business but also at
the entrances to some of the subway stations where Interborough operated news-
stands. The Board found that the union's agents induced members of the union,
who were employed by secondary employers, to refuse to deliver newspapers to
the subway newsstands operated by Interborough. Nevertheless, the Board found
that because the union's conduct in such inducement involved action only at the
newsstands of Interborough, it was not violative of the Act. The Board relied on
the principle it had established in Pure Oil Company, 84 NLRB 315, 319. In that
case, a striking union directed "hot cargo" letters to another union representing
employees of another employer unconcerned in the primary dispute. The letters
successfully appealed to the other union to respect the striking union's lines at the
primary employer's premises shared with another neutral employer by refusing to
accept cargo at that point. In holding that Section 8 (b) (4) (A) had not been
violated, the Board pointed particularly to the fact that the letters were appeals
to refuse to perform services only at the premises of the primary employer and
amounted to nothing more than a request to respect a primary picket line.
I cannot distinguish the instant case from Interborough News. If I am correct in
my conclusion that the Respondent's picketing at the Seaboard and FEC terminals
constituted primary picketing, then Lasater's specific request of Central employees
at the July 7 union meeting not to cross the Seaboard and FEC picket lines consti-
tuted no more than an appeal by the Respondent seeking support in its labor dispute
with the Spencers for sympathetic action at the premises of both freight terminals,
and this amounts to traditional primary strike action outside the purview of
Section 8 (b) (4) (A) and (B).
While it is true that the "hot cargo" contract invoked by the Respondent con-
tained a clause protecting Central's employees from discharge for a refusal "to
handle unfair goods" as well as for a refusal "to go through the picket line of a
union," it is also clear from the entire record that this is not a case where Central's
employees were induced not to handle goods at their. own place of employment they
otherwise would have handled in the course of their employment. The appeal was
for a refusal to handle freight unloaded or possibly to be loaded by Spencers'
employees and which could only be reached by Central's employees by crossing the
primary picket lines at the Seaboard and FEC terminals. I can see no distinction
between this situation and the one in Pure Oil, where the striking union, without
the benefit of a "hot cargo" contract, induced employees of a secondary employer
to refuse to handle goods at the primary employer's dock, which it shared with a
neutral employer, because that dock was declared "hot." Since the record shows
za Cf. Firchau Bros. Logging Company, supra, which involved the issue of whether a
union induced or encouraged the employees of a neutral lumber company to refuse to
handle on the premises of the neutral employer, the logs of another employer that the.
union had declared unfair, and where there was no "hot cargo" agreement.
MOUNTAIN PACIFIC CHAPTER 883
that the delivery and pickup of suburban freight by Central, freight handled or to
be handled by Spencers' employees, involved crossing the primary picket line at each
freight terminal, and since the record otherwise clearly demonstrates that the
purpose of the Respondent was to induce the employees of Central to refuse to
perform services only at the loading or unloading docks used by the Spencers, I
find that the Respondent did not violate Section 8 (b) (4) (A) and (B) of the Act.
Accordingly it will be recommended that the complaint be dismissed in its entirety.
Upon the basis of the foregoing findings of facts and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Herbert A. Spencer and Lee K. Spencer, copartners, doing business under the
trade names of U & Me Transfer and Palm Beach Transfer, are engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Respondent is a labor organization within the meaning of Section 2 (5) of
the Act.
3. The allegations of the complaint that Respondent has engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (A) and (B) of the Act have not
been sustained.
[Recommendations omitted from publication.]
Mountain Pacific Chapter of the Associated General Contractors,
Inc., The Associated General Contractors of America, Seattle
Chapter, Inc ., and Associated General Contractors of America,
Tacoma Chapter and International Hodcarriers , Building
and Common Laborers Union of America , Local No. 242, AFL-
CIO and Western Washington District Council of International
Hodcarriers, Building and Common Laborers Union of Amer-
ica, AFL-CIO and Cyrus Lewis, Charging Party. Cases Nos.
19-CA-137'4,19-CB-424, and 19-CB-44.5. December 14, 1957
DECISION AND ORDER
On December 11, 1956, Trial Examiner Herman Marx issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Local 242 had engaged in and was engaging in certain
unfair labor practices and recommending that it. cease, and desist'
therefrom and take certain affirmative action, as. set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also recommended that the complaint be dismissed as to all other
Respondents. Thereafter the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner only to the extent consistent herewith
and as specifically indicated in an Opinion which shall hereafter
be issued.
119 NLRB No. 126.