TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340

National Labor Relations Board - Board Decisions

Sep 29, 1959

124 N.L.R.B. 1057 (N.L.R.B. 1959)

TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1057
employees or to make effective recommendations as to changes in
their employment status. Accordingly, we find, unlike our holding
heretofore, that the looper fixer is not a supervisor; in addition, we
find that the service girl in the examining department lacks super-
visory authority. Accordingly, we shall include both of them in the
unit.
3. The Employer and the Petitioner also stipulated that the Em-
ployer's chief mechanic and its service girl in the mending department
have authority to make effective recommendations with respect to the
hire and discharge of other employees and that they should be ex-
cluded from the unit. Accordingly, we find that the chief mechanic
and the service girl in the mending department are supervisors within
the meaning of the Act, and shall exclude them from the unit.
In view of the foregoing, we shall modify our original decision to
the extent indicated above, as well as our unit finding and Direction of
Election.
We, therefore, find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All production and maintenance employees at the Employer's
Wilmington, North Carolina location, including seamless line fixers,
the looper fixer, knitters, loopers, examiners, quality control em-
ployees, the service girl in the looping department, the service girl in
the examining department, the employees who affix attachments to
seamless knitting machines, garter sewing employees, the streak man,
the knitting electrician, the yarn boy, the oiler, and plant clerical em-
ployees, but excluding office clerical employees, the seamless head fixers,
the supervisor in the quality control department, the chief mechanic;
the service girl in the mending department, and all other supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
Truckdrivers , Warehousemen and Helpers , Local No. 340, a/w
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Viner Bros ., Inc. Case
No. 1-CC-196. September 29, 1959
DECISION AND ORDER
On August 21, 1958, Trial Examiner Alba B. Martin issued his
Intermediate Report in this case, finding that the Respondent had
violated Section 8 (b) (4) (A) by inducing and encouraging employees
of Fox & Ginn, Penobscot, Capitol, and Graves to engage in a con-
124 NLRB No. 147.
525543-60-vol. 124-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed refusal in the course of their employment to transport or
otherwise handle merchandise to or from Viner Brothers during its
strike when an object thereof was to require these trucking companies
to cease doing business with Viner Brothers during the strike. He
recommended that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report with a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications herein.
The Trial Examiner found, and we agree that the Respondent
violated Section 8 (b) (4) (A) of the Act when it, in substance, advised
employees not to handle and transport Viner merchandise generally,
and without respect to the location of the goods.
The Trial Examiner found eight instances, all of which are fully
detailed in the Intermediate Report, which were violative of the Act.
Some of the episodes involve representatives or officials of the Re-
spondent Union advising employees of common carriers doing busi-
ness with Viner of their purported contractual rights to refuse to go
through the Viner picket line, encouraging them to refuse to cross the
picket line, or persuading them in the vicinity of the picket line not
to cross. The picket line was established at the premises of Viner to
support a strike called by the Boot and Shoe Workers, the certified
bargaining representative of Viner's employees, after a breakdown
in negotiations between that Union and Viner. The Respondent
Union contends that inducing concerted refusals to cross such a picket
line is not violative of Section 8(b) (5) (A) because it falls within the
proviso to Section 8(b) (4). It further contends that those portions
of article IV of its contract with the carriers which sanction indi-
vidual and concerted refusals to cross picket lines at the premises of
struck employers establish not only its statutory but also its con-
tractual right to do so.
In finding that the Respondent induced and encouraged employees
of trucking companies not to transport or handle Viner freight gen-
erally, we rely on two episodes-(a) and (h) in the Intermediate
Report-involving (1) the business agent's telling Fox & Ginn's
terminal manager, within the hearing of employees, that he "shouldn't
be handling this freight," and, on the same occasion, telling employee
Reginald Bell to "read your contract" when the latter individual
inquired why Fox & Ginn employees should support the Boot and
TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1059
;Shoe Workers Union; and (2) the business agent's telling members,
at a union meeting on January 19, 1958, including employees from
most of the employees of the common carriers in the area servicing
Viner, that, with respect to the Viner strike, the members should read
their contracts, and explaining to the members the substance of article
IV thereof, captioned ",Unfair Goods." Article IV contained, in addi-
tion to the clause purporting to authorize refusals to cross the picket
line, standard "hot-cargo" provisions.
In view of our conclusion that the Respondent induced and en-
,couraged employees of trucking companies not to handle or transport
Viner freight generally, we find it unnecessary to determine whether
the Respondent violated the Act by the other incidents relied upon
by the Trial Examiner, and we do not address ourselves to the specific
contentions made by the respondent with respect thereto.
Accordingly, we find that the Respondent Union induced or en-
,couraged employees of Fox & Ginn, Penobscot, Capitol, and Graves
to engage in a concerted refusal in the course of their employment to
transport, or otherwise handle or work on any merchandise to or from
Viner Brothers during its strike where an object thereof was to force
or require these trucking companies to cease handling or transporting
such merchandise or to cease doing business with Viner Brothers
during the strike, the Respondent Union thereby violating Section
8(b) (4) (A) of the amended Act.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Union, and its
officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from engaging in a strike, or inducing or en-
couraging the employees of Fox & Ginn, Penobscot, Capitol, Graves,
or any other employer, other than Viner Bros., Inc., to engage in a
concerted refusal in the course of their employment to transport, or
otherwise handle or work on any goods, articles, materials, or com-
modities, or to perform any services for their respective employers,
where an object thereof is to force or require their respective em-
ployers or any employer or person to cease handling or transporting
goods to or from Viner Bros., Inc., or to cease doing business with
Viner Bros., Inc.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office and meeting place or places in Bangor,
Maine, and on the platforms or docks of Fox & Ginn, Penobscot, Capi-
tol, and Graves (those employers being willing) copies of the notice
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto marked "Appendix." 1 Copies of said notice, to be
furnished by the Board's Regional Director for the First Region
(Boston, Massachusetts), shall, after being duly signed by the official
representative of the Respondent, be posted by it immediately upon
receipt thereof, and maintained by it for a period of 60 clays there-
after, in conspicuous places including all places where notices to^
union members and notices to employees on the Bangor docks or plat-
forms of Fox & Ginn, Penobscot, Capitol, and Graves are customarily
posted. Reasonable steps shall be taken by said Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for the First Region in writing,
within 10 days from the date of this Order, what steps the Respond-
ent has taken to comply herewith.
MEMBER JENKINS, concurrin-separately:
I concur in a separate opinion because, unlike my colleagues, I
would affirm the finding of a violation on the basis of the totality of
the Respondent's conduct and not merely on the two episodes found.
violative by my colleagues, and in doing so shall set forth my reasons.
Boot and Shoe Workers, the collective-bargaining representative-
of Viner's employees, struck Viner and picketed its plants. In the-
course of its business, Viner utilizes the services of common carriers,
to deliver incoming freight and to pick up outgoing shipments.
Among such carriers were Fox & Ginn, Inc., Penobscot Motor Express,-
Capitol , Motors, and Graves Express. The employees of these carriers
were represented by Local No. 340 of the Teamsters, the Respondent
Union. At no time material herein did the Respondent Union have-
any dispute with Viner. Nonetheless, and despite the absence of any
dispute with Viner, the Respondent Union instituted a specific pro-
gram pursuant to which the employees of the common carriers were
not to make deliveries to or pickups from Viner's premises or handle or
work on products or freight consigned to or from Viner. All this is
clearly established by the record.
By way of implementation of this specific program, the Respondent
Union, on November 4, 1957, while the strike at Viner was in progress,
wrote each of the common carriers who did business with Viner in
the Bangor area, including the named carriers, that it is the intent
of its members to refuse to cross the picket line at Viner and "to refuse
to handle their merchandise until such time as the strike of their-
employees has been settled." [Emphasis supplied.] Thereupon, the
carriers told Viner that it would have to do its own transporting.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
TRUCKDRIVERS , WAREHOUSEMEN & HELPERS, LOCAL 340 1061
Following this, a number of incidents took place, fully detailed in the
Intermediate Report, which involved employees of the carriers and
which were directly related to the program of the Respondent Union.
Thus, in December 1957, on the Fox & Ginn dock, Business Agent
Burns of the Respondent Union told the terminal manager within
the hearing of employees that "you shouldn't be handling this freight,"
and at the Fox & Ginn office, Burns told a group of employees, "we
didn't have to go through a picket line if we didn't want to. It was
written in our contract that way." In November 1957, at Penobscot's
'office, Page, an official of the Respondent Union, told the terminal
manager in the presence of at least three Penobscot drivers, "you
know your men don't have to go through that picket line." In De-
cember 1957 and January 1958, Page told Capitol driver Estes, "the
only thing that I can tell you is what I have been telling the other
guys, read your contract . . ." At a union meeting in January 1958
Burns referred those present, who worked for most of the carriers
in the Bangor area servicing Viner, to article IV of the contract, told
them in substance how to read it, and said they could decide for
themselves whether to go through the picket and that if they did not
go through they could not be discharged for it. As I have already in-
dicated, similar incidents affecting the common carriers occurred dur-
ing this period.
From these and the related incidents the conclusion is inescapable
that all this was, as the Trial Examiner correctly found, an integral
part of a program formulated and effectuated by the Respondent
Union as a labor organization, which is a far cry from individual ac-
tion by individual persons, for its members collectively , to refuse to
handle Viner goods during the Viner strike. As I view the facts of
this case, telling employees of the common carriers to "read the con-
tract" was a deliberate signal evoked by the Respondent Union to
carriers' employees that Viner goods were not to be handled. As such,
it had the same impact as a specific direction or order or appeal to the
same effect . This is precisely the type of inducement or encourage-
ment to refuse to handle the goods of another employer which the Act
proscribes. I cannot label it any more accurately than by describing it
as a clear signal, with all the implications that it carries, to the com-
mon carriers ' employees that Viner goods were "unfair goods." As
the Trial Examiner notes, when the union official, Page, told driver
Estes "just read the contract,"' Estes immediately got the idea. In these
circumstances, I see no purpose in attempting to pick and choose
among the incidents relied on by the Trial Examiner in finding a
violation of the Act. The pattern of a deliberate program on the part
of the Respondent Union is clear and unmistakable. The facts and
circumstances surrounding this program are so inextricably inter-
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mingled and intertwined that they cannot be severed with any ap-
preciable logic or justification.
We have here, in my opinion, a flagrant example of the extension of
a dispute by secondary action to employees of neutral employers by a
Union which not only does not purport to represent Viner employees,
but which has no dispute with any of the common carriers whose em-
ployees it does represent. As Senator Taft stated during the legis-
lative debate on the Taft-Hartley amendments, if employees could be.
encouraged by a Union to strike because "their employer happens to.
be doing business with someone the Union does not like. . . . There.
can be a chain reaction that will tie up the entire United States in a
series of sympathetic strikes if we choose to call them that." (93
Cong. Rec. 4323, April 29, 1947.)
MEMBER FANNING took no part in the consideration of the above.
Decision and Order.
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 340, AND TO ALL EMPLOYEES OF'
Fox & GINN, INC., PENOBSCOT MOTOR ExPREss, CAPITOL MOTORS,,
AND GRAVES EXPRESS
Pursuant to a Decision and Order of the National Labor Relations.
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members that :
WE WILL NOT engage in a strike, or induce or encourage the em-
ployees of Fox & Ginn, Inc., Penobscot Motor Express, Capitol
Motors, Graves Express, or any other employer, other than Viner-
Bros., Inc., to engage in a strike or concerted refusal in the course'
of their employment to transport, or otherwise handle mer-
chandise to or from Viner Bros., Inc., where an object thereof is.
to force or require Fox & Ginn, Inc., Penobscot Motor Express,.
Capitol Motors, Graves Express, or any other employer, to cease
handling or transporting goods to or from Viner Bros., Inc., or
to cease doing business with Viner Bros., Inc.
TRUCKDRIVERS, WAREHOUSEMEN AND HELPERS,
LOCAL No. 340 A/W INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
TRUCKDRIVERS , WAREHOUSEMEN & HELPERS, LOCAL 340 1063
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed by Viner Bros., Inc., the General Counsel of the National
Labor Relations Board, herein called the General Counsel and the Board , on Febru-
ary 11, 1958, issued his complaint against Truckdrivers , Warehousemen and Helpers,
Local No. 340, a/w International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America ( herein called Respondent , Respondent Union, Local
340, the Local, and the Union ), alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8(b) (4) (A) and Section 2(6) and ( 7) of the National Labor Relations Act as
amended, 61 Stat. 136 , herein called the Act. Copies of the charge and the com-
plaint and notice of hearing were duly served upon the parties.
With respect to the unfair labor practices the complaint alleged, in substance, that
in support of a strike by another union ( Boot and Shoe Workers Union , AFL-CIO,
the bargaining representative of Viner employees ) against Viner Bros., Inc., with
whom Respondent had no dispute , Respondent , who was the collective-bargaining
representative of the employees of a number of trucking companies, common car-
riers, which serviced Viner Bros ., induced and encouraged the employees of those
trucking companies not to pick up or deliver or handle merchandise to or from
Viner Bros . during the strike, an object of the Respondent 's acts and conduct being
to require the trucking companies to cease handling or transporting the products of
Viner and to cease doing business with Viner.
In its answer Respondent denied the commission of any unfair labor practices
and asserted as a defense the unfair goods clause of its contract with the trucking
companies. The answer asserted that the existence of this unfair goods clause as a
matter of law precluded the complained -of activities of Respondent from being a
violation of Section 8(b) (4) (A).
Pursuant to notice a hearing was held on April 2, 1958, ,in Bangor , Maine, before
Alba B. Martin, the Trial Examiner duly designated by the Chief Trial Examiner.
All parties were represented by counsel and participated in the hearing . Full oppor-
tunity to be heard, to examine and cross-examine witnesses , and to introduce evidence
bearing on the issues was afforded all parties . At the conclusion of the hearing the
parties waived oral argument . Respondent submitted a brief, which has been care-
fully considered.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF VINER BROS., INC.
Viner Bros., Inc., a Maine corporation with its principal office in Bangor, Maine,
at all times of concern herein has been engaged in the manufacture and sale of
shoes. Viner Bros., Inc., has caused and causes large quantities of raw materials
used by it in the manufacture of shoes to be purchased and transported in interstate
commerce from and to various States of the United States other than the State of
Maine; and during the year prior to the issuance of the complaint herein 1 caused
shoes valued in excess of $100,000 to be sold and transported in interstate commerce
from Bangor , Maine , to States of the United States other than the State of Maine.
It is held that Viner Bros., Inc., was and is engaged ,in commerce within the meaning
of the Act.
The complaint alleges, the answer admits , and I find that Viner Bros., Inc., is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truckdrivers , Warehousemen and Helpers , Local No. 340, a/w International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2 ( 5) of the Act.
I The Board 's jurisdiction herein is not disputed . Through inadvertence the complaint
neglected to state that the outflow alleged took place during the year prior to the
issuance of the complaint-which was alleged and not disputed and found to be a fact
In the injunction matter herein, of which I take official notice . 161 F . Supp. 86
(D.C. Maine).
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. General setting in which the acts occurred
The complaint alleged, the answer admitted, and I find, as follows:
1. At all times material herein Boot and Shoe Workers Union, AFL-CIO, has
been the collective-bargaining representative of the employees of Viner at its Bangor,
Maine, plants.2
2. In the course and conduct of its business Viner utilizes the service of common
carriers by motor vehicle to deliver incoming freights and materials and to pick up
outgoing shipments. Among the motor carriers whose services are utilized by Viner
are Fox & Ginn, Inc., Penobscot Motor Express, Capitol Motors, and Graves Express
(herein respectively called Fox & Ginn, Penobscot, Capitol, and Graves).
3. At all times material herein, Respondent has been the collective-bargaining
representative of the dock workers, drivers, helpers, and warehousemen employed
by Fox & Ginn, Penobscot, Capitol, Graves, and of other motor carriers furnishing
pickup and delivery services to Viner.
4. Since on or about November 1, 1957, Boot and Shoe Workers Union, AFL-CIO,
has been engaged in a strike against Viner and has picketed the latter's plants 3 at
Bangor, Maine.
5. At no time material herein has Respondent had any labor dispute with Viner.
B. The facts
Boot and Shoe Workers Union, AFL-CIO, began its strike against Viner Bros.
on or about September 26, 1957. That Union was the certified bargaining repre-
sentative of the employees at Viner Bros. and the strike resulted from the break-
down of negotiations for a contract. The strike was suspended from shortly after
it commenced until October 31, 1957, by a State court injunction, which was vacated
on the latter date. Thereafter until the complaint herein Boot and Shoe Workers
Union maintained a picket line at each of Viner's two plants in Bangor, one, the
main plant, on Hancock Street, and the other a combination plant and warehouse,
on Odlin Road, about 3 miles from the main plant. As will be seen below, the
pickets were not always on their feet marching, walking, or pacing. Respondent's
complained-of secondary activity occurred on and after November 1, 1957. The rec-
ord does not reveal the legends on the signs sometimes carried by the pickets.
On November 4, 1957, Respondent Union sent a letter concerning the picket line
at Viner Bros. and handling Viner merchandise to each of nine trucking com-
panies, who presumably did business in the Bangor area, including the four trucking
companies here involved-Fox & Ginn, Penobscot, Capitol, and Graves-each of
which has a terminal or dock in Bangor. Of these four, at least two of them, Fox &
Ginn and Penobscot, transport merchandise in interstate commerce and operate under
license from the Interstate Commerce Commission. The Union's letter of November
4, 1957, signed by David Hastings, business agent, read as follows:
In compliance with Article IV, of our Union Contract with your Company,
this is to notify you of the intent of our members to refuse to cross a picket line
at Viner Bros., Inc., Bangor, Maine, and to .refuse to handle their merchandise,
until such time as the strike of their employees has been settled.
Please comply with Article IV of the said Union Contract.
Article IV of the contract then and now in effect between Respondent Union and
each of the common carriers herein involved reads as follows: 4
1. 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 violation of this Agreement. The Union and its
members, individually and collectively, 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, or to make pickups from, or deliveries to establishments
where picket lines, strikes, walkouts, or lockouts exist.
2. The term "Unfair goods" as used in this Article includes, but is not
limited to any goods or equipment transported, interchanged, handled, or used
,'The complaint referred to "plant." Testimony showed Viner had two plants in
Bangor, both of which were picketed-a fact which is not in dispute.
See footnote 2.
The contract is in effect from August 10, 1955, until April 10, 1961.
TRUCKDRIVERS, WAREHOUSEMEN &- HELPERS, LOCAL 340 1065,
by any carrier, whether party to this Agreement or not, at any of whose termi-
nals or places of business there is a controversy between such carrier or its
employees on the one hand, and a labor union on the other hand; and such
goods or equipment shall continue to be "Unfair" while being transported,
handled, or used by interchanging or succeeding carriers, whether parties to this
Agreement or not, until such controversy is settled.
3. The Union agrees that, in the event the Employer becomes involved in
a controversy with any other Union, the Union will do all in its power to help
effect a fair settlement.
4. The Union shall give the Employer notice of all strikes and/or the intent
of the Union to call a strike of any Employer and/or place of business, and/or
intent of the members to refuse to handle unfair goods (notice of such intent
with respect to unfair goods shall be given the Employer in writing). The
carriers will be given an opportunity to deliver any and all freight in their
physical possession at the time of the receipt of notice. Any freight received
by a carrier up to midnight of the day of the notification shall be considered to
be in the physical possession of the delivering carrier.
5. The insistence by any Employer that his employee handle unfair goods or
go through a picket line after they have elected not to, and if such refusal
has been approved in writing by the Eastern Conference of Teamsters and the
Legal Department of the International Union, shall be sufficient cause for an
immediate strike of all such Employer's operations without any need of the
Union to go through the grievance procedure herein. [Emphasis supplied.]
In its brief Respondent suggests that as nothing in the evidence discloses that
the Union had taken any action, formal or informal, regarding the letter it sent the
carriers, the position taken in the letter represented other or less than the official
position of the Union. With this I do not concur. The letter, on the letterhead of
the Local, was signed by a business agent. So was the collective-bargaining con-
tract governing the relations between the Union and the carriers for some 51/a
years, signed by a business agent as well as the secretary-treasurer. In the contract
business agents were given broad authority to settle grievances within the stated
grievance procedure, and "authorized" agents, which surely included business agents,
were given broad authority to police the contract. Under the circumstances I find
that the Local's letter of November 4 to the carriers represented an official state-
ment of the Local's position regarding crossing the Viner picket line and handling
Viner merchandise.
As has been seen above the Union's letter to the trucking companies requested
them to comply with article IV of the contract. The only compliance by an em-
ployer that appears called for in article IV is that the employer refrain, upon pain
of an immediate strike, from insisting that his employees handle unfair goods or go
through a picket line after they have elected not to. In any case, according to the
uncontradicted testimony of Viner Brothers' traffic manager, George Chebba, "the
various transportation companies" which had serviced Viner Brothers prior to the
strike-
said in effect, that since there was a picket line or a strike going on, we were
having labor difficulties that their union employees would not cross the picket
line because they had that stipulation in their contract and they couldn't force
them and, therefore, we would have to bring the merchandise down to them
and we would have to pick it up, ourselves.
For a time after the renewal of the strike on about November 1, Viner trans-
ported its own merchandise to and from its own plant and the various trucking
companies' platforms. At the time of the hearing herein, however, that situation
had changed, and employees of several carriers, including Fox & Ginn and Capitol,
were driving through the picket line to and from the Viner docks.
1. Fox & Ginn
Sometime during December 1957, one day just as the day shift was about to
complete its day's work at 5:30 p.m., George Burns, Respondent Union's business
agent in Bangor, had a conversation with Ralph Hobson, terminal manager of
Fox & Ginn, on the latter's platform at its Bangor terminal. As they were talking
the employees on the day shift, consisting of up to eight or nine employees, and two
employees on the night shift who had started work at 5 p.m., were going about
their business on the platform loading or unloading trailers and pushing four-wheeled
carts, laden with merchandise, to and from the trailers. They passed within 5 or 6
feet of where Hobson and Burns were talking, and at least one of them, Reginald
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bell, heard a part of the conversation and joined in it. The record does not estab-
lish that any other employee heard any of the conversation , but, as Respondent
conceded in its brief , they were within earshot of the conversation . As Bell passed
by wheeling a cartload of Viner Brothers shoes Burns said to Hobson , according to
Hobson, a credible witness, "you shouldn't be handling this freight ." Hobson
replied "George, we have an obligation to accept any freight that is given to us, and
this freight must move." The conversation continued about Viner Brothers shoes,
and Hobson told Burns that if members of Local 340 would not handle them Hobson
would do it himself. During the conversation Reginald Bell said to Burns that he
did not see why the men should support the Boot and Shoe Workers Union, who
were having labor difficulties at Viner Brothers , because if we were in the same
situation they would not support us. Burns' only reply was "read your contract."
Bell's workday ended during this conversion , so at the conclusion of the conversa-
tion Bell did not continue moving Viner Brothers freight. Fox & Ginn's operation
is a 24-hour operation , and it is customary to drop one 's work wherever it is at
the conclusion of a shift , and for the next shift to take it up from there . However,
that evening the night crew, for the first and only time revealed in this record,
failed to load Viner shoes . They left unloaded about 25 to 30 cases of shoes bound
for Boston which the terminal manager himself loaded on the Boston trailer "later
on in the evening."
Immediately after this conversation Burns and a number of employees went into
a little office on the platform , at which time Burns said , according to the uncon-
troverted testimony of Reginald Bell, "that we didn't have to go through a picket
line if we didn 't want to. It was written in our contract that way."
The record discloses a number of statements by the Union 's only steward at the
Fox & Ginn terminal in Bangor, Richard Glidden, which the General Counsel
contended the Union was responsible for and amounted to inducing or encouraging
a concerted refusal; and which, on agency grounds, the Respondent contended it
was not responsible for. These contentions are considered later. First , the evidence.
Richard Glidden has been steward since about September 1957. During that
period the union mail came to Fox & Ginn's terminal addressed to Glidden as shop
steward. As Respondent is the collective-bargaining representative of the dock
workers, drivers , helpers and warehousemen employed by Fox & Ginn, and as
Fox & Ginn had at the time of the hearing approximately 38 or 39 employees , includ-
ing those categories , with Glidden as the Union 's only steward on that dock, pre-
sumably Glidden services about 38 or 39 employees . At least one of these em-
ployees, Robert Golightly, pays his union dues through Glidden, and presumably
all members of Local 340 at that terminal do also. On behalf of the employees,
Glidden brings grievances to the attention of Terminal Manager Hobson and tries
to work out an adjustment with him. Grievances thus far brought to Hobson's
attention have related , for the most part, to amounts certain men have been paid
for their week's work. If Glidden is unsuccessful in settling grievances with
Hobson , he then takes them up with Mark Ginn , general manager of Fox & Ginn.
At that point it is the usual practice for Respondent 's business agent, George Burns,
to take up discussion of any grievances with Mr. Ginn.
The collective-bargaining contract ( article III), between the Union and Fox &
Ginn contains the following pertinent provisions concerning union stewards:
1. The Employer recognizes the right of the Union to designate a Steward
to handle such Union affairs as may from time to time be delegated to him by
the Union.
1A. No Steward shall have the authority to call a strike, cause a slow-down
or take any other action which would interrupt the Employer 's business, except
as such action may be authorized by the Union. The Employer recognizes this
limitation upon the authority of the Steward.
* *
3. The duty of the Steward in addition to his regular work assignments shall
be to report to the Union any violations or failure to comply with the terms
and conditions of this Agreement . Nothing in these provisions shall authorize,
or be construed so as to authorize , whatsoever , or to alter or modify the
working conditions prescribed in this Agreement.
One day in November or December 1957, as truckdriver Robert Golightly was
proceeding away from the Odlin Street warehouse of Viner Brothers , having stopped
there with Fox & Ginn 's truck and picked up some Viner merchandise, Richard
Glidden, driving his own car , stopped Golightly about three -quarters of a mile from
the Viner plant. Only Golightly testified concerning the incident , as Glidden was
not called as a witness . In substance Glidden asked if Golightly had gone through
TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1067
the picket line at Viner Brothers, and said that the Boot and Shoe Workers had
called Glidden the night before and complained about Golightly. Golightly ad-
mitted that he had made the pickup of merchandise at Viners, but contended that he
had not gone through a picket line, inasmuch as there was no picket line there. He
told Glidden that he had seen some men sitting in a car over on the left-hand side
of the road but that they were not picketing in front of the gate and that he, Go-
lightly, did not consider that they were pickets. In substance Glidden told him that
those men were pickets and that Golightly should so consider them. Golightly
replied that he would continue going into the Viner plant until there was somebody
across the direct path, and that otherwise he would not consider there was a picket
line. On 2 successive nights after this incident-Golightly testified it could have
been in December-Golightly received telephone calls at his home from Glidden.
In each telephone call Glidden asked if Golightly had picked up shoes at Viners
that day, and each time Golightly allowed that he had. On each occasion Glidden
asked if he had gone through a picket line, and on each occasion Golightly responded
in the negative, saying that there were fellows in the car on the left-hand side of the
road, but that they were not "patrolling." On each occasion Glidden reported that
"they" called me up last night and told me that you had gone through the picket
line. Having been referred to a specific sentence in his affidavit previously executed
for a Board field examiner, Golightly said "I see my error here," and then said that
"not to his knowledge" had his memory been refreshed by the affidavit as to anything
else that Glidden told him. Asked if Glidden ever told him that he should not have
crossed the picket line at Viners, Golightly replied "I think I told you once before
that he said not to cross that picket line, yes." Then he stated that Glidden told him
that in both telephone conversations and when Glidden stopped him on the road.
Whatever Glidden told him, Golightly continued picking up merchandise at Viners.
Asked on cross-examination by Respondent's counsel whether Glidden was asking
him on these occasions whether he had crossed a picket line or was telling him not
to cross the picket line, Golightly replied that he thought Glidden said "did you cross
the picket line" and that Golightly replied that there was no picket line there.
As on each of these three occasions Glidden took the initiative to engage Golightly
in conversation about going through the picket line, and as on each occasion this
initiative was sparked by a conversation with striking Viner employees or their
agents, it seems unlikely to me that Glidden would have contented himself with
merely asking Golightly if he had gone through the picket line. As Golightly testi-
fied, Glidden told him during these conversations to regard the men sitting in the car
at the Viner plant as a picket line; and under all the circumstances it appears prob-
able to me that he would have cautioned Golightly that, as obviously desired by the
striking Boot and Shoe Workers, he should not go through the picket line. This
version of the conversation is consistent with Golightly's affidavit, which he did not
repudiate, and which he thought was consistent with the testimony he had given
before the statement in the affidavit was called to his attention. This version of the
conversation is consistent with the Union's policy, as stated in its letter to the car-
riers, of not crossing the Viner picket line and not handling Viner merchandise during
the Viner strike. On the evidence, and on the probabilities, I find that during each
of these three conversations Glidden told Golightly that he should not go through the
picket line.
The Union's regular monthly meeting was held on Sunday, January 19, 1958.
Business Agent George Bums presided. Business Agent Al Page was present.
Presumably the same person, Albert H. Page, signed the answer herein as secretary
and treasurer of Local 340. Present as well were the employees of most of the
trucking companies in the Bangor area which serviced Viner Brothers, including Fox
& Ginn, Capitol, and Penobscot. Only Reginald Bell testified as to what took
place at the meeting. During the meeting somebody from the floor raised a ques-
tion about the Viner Brothers strike. On direct examination Bell stated that Burns
replied, "it was strictly up to us if we wanted to go through the picket line or not,
we could do anything we wanted." On cross-examination Bell answered in the
affirmative a leading question as to whether Burns had said, "It is up to each one
of you whether you want to cross a picket line." Asked if Burns made any reference
to any clause in the contract, Bell replied, "just the clause that was pointed out,
whether we wanted to do it or not." On redirect examination Bell said that Burns
"pointed out the part where disciplinary action could not be taken if we choose not
to." Then, after reading article IV to himself while on the witness stand, Bell re-
called that Burns used the "general gist" of the language contained in article IV.
Bell was a somewhat reluctant witness, and on this testimony I conclude that Burns
told those present at the meeting that they-in the plural-could decide for them-
selves whether to go through the picket line, and that if they did not go through they
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not be discharged for it; and that Burns referred them to article IV of the
contract and told them in substance how it read, including the language about not
handling unfair goods.
Without contradiction Terminal Manager Hobson of Fox & Ginn testified that
prior to January 20 none of his employees refused to handle Viner merchandise on
the dock, but that beginning on about January 20 nearly all of his day crew refused
to handle Viner merchandise, and since about January 20 the majority of the day
crew have refused to handle it although several of the employees are handling it
now. On the evening of January 20, just after the first shift had concluded its work,
Hobson himself was loading some cases of Viner shoes. Richard Glidden, the union
steward, came up to Hobson to find out what time he was to go out that night.
According to the testimony of Hobson,
He came over to the trailer that I was loading shoes on, and we talked back
and forth there, and I asked Dick why it was that the boys were refusing to
handle the shoes. He said, "as individuals, they don't have to handle them."
He said, "its up to each individual if he sees fit to handle them, that is his de-
cision to make." I said, "it is rather peculiar to me that they have been
handling •them right along until today. That is why I am loading them now."
He said they were within their own rights if they see fit to refuse to handle them.
"It is their decision to make." That is all of the conversation I had with him.
Later in the week of January 20, 1958, in the downstairs anteroom at the Fox &
Ginn terminal, Richard Glidden made a statement to a driver, Glenn Hatch, in the
presence of Hobson, who testified concerning it. Hatch asked Hobson what time
the shoes at Viners would be ready to be picked up. Hobson •replied around 3 o'clock
in the afternoon. Hatch volunteered that he would stop and get them on the way
back, as he was going by there. Hobson pointed out that Hatch would be going by
there too late because Hatch would not get back to the terminal until 5:30 or 6
o'clock. At that point Richard Glidden said to Hatch "you wouldn't go through the
picket line, you know you wouldn't."
2. Penobscot
Alan D . Feldman, terminal manager of Penobscot Motor Express , testified without
contradiction that prior to November 1, 1957, Penobscot picked up and delivered
merchandise from and to Viner Brothers. Asked whether Penobscot continued to
do that after November 1, Feldman replied "that was the time, if I am not mistaken,
that the Viner trucks came to our place and started picking up the merchandise
from the platform . ," and also delivered merchandise for shipment to
Penobscot's platform. That system continued until about January 1, 1958, when
Feldman himself started picking up and delivering from and to the Viner Brothers'
dock. He was continuing to do that at the time of the hearing.
In late November 1957, Al Page, identified by Feldman as treasurer of Local 340,
came to the office at Penobscot 's terminal in Bangor and had a conversation with
Feldman. First they discussed grievances. After that they discussed the Viner
situation. As they discussed the Viner situation, at least three Penobscot drivers
were present , handing in some freight slips. Page initiated the Viner conversation
by asking Feldman if he had received the letter from the Union concerning the Viner
strike. Feldman acknowledged that he had received it. Page then said to Feldman
in the presence of the employees, "you know your men don't have to go through that
picket line." Feldman responded that he realized that. At this point Page pulled
out a copy of the collective-bargaining contract between the Union and Penobscot
and turned to the employees, saying to them, according to Feldman's direct testi-
mony, "you know you fellows don't have to go through that picket line."
On cross-examination Feldman weakened his testimony somewhat. When counsel
suggested that Page said "it is up to you whether you want to go through there or
not" the witness allowed that "at this particular time, I am not quite certain. He
may have said that, but the drift of the conversation was `that you don't have to
go through."' The witness acknowledged that in his testimony before a Federal
district judge in an earlier stage of this proceeding on February 13, 1958, he testified
that Page said on this occasion, "there is no definite cause for you to go or not to
go out there, that is all." The witness then acknowledged that his recollection
might have been fresher on February 13 than it was while he was testifying herein.
In substance the witness then said that he was not giving Page's language word by
word, and that Page might have said it either way. Asked if Page gave the men
their choice the witness replied "the way he said it, and I am almost positive, is
the fact that `you men know you don't have to go through."' The witness then said
TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1069
that he would leave it that Page did not leave the men a choice, but said to the men
that "you men don't have to go through." The witness then acknowledged that at
the moment Page was speaking to the truckdrivers one of the office girls asked
Feldman about something else. He added, however, that at the time he was just
across the desk from the other conversation. Asked how he would finally leave it
the witness replied that Page said to the men, with his book in hand, "now, you
men realize that you don't have to go through." Then pursuant to questions the
witness explained that he put in those words because those were the words that Page
earlier used to the witness. A few minutes later Feldman's last testimony on the
point was that Page "said, and again, I don't know if those were his exact words, but,
`you men don't have to go through,' or, `you men can go through, it is up to you.' "
It could very easily have been said either way."
A fair conclusion from Feldman's testimony, which stands uncorroborated and
uncontradicted in the record, which conclusion I reach, is that on this occasion Page
told Feldman,,in the presence of three of his drivers, that his men did not have to go
through the Viner picket line. He then turned to the drivers, exhibited a copy of
the contract, and told the drivers substantially the same thing, possibly adding that
the choice was theirs as to whether they should or should not go through.
3. Capitol
On two occasions in December 1957 and January 1958, one R. Estes, a truck-
driver for Capitol, initiated two telephone calls with Albert Page, secretary and
treasurer and business agent of Local 340. On each occasion Estes informed Page
in substance that he and the other regular driver at Capitol were in the middle, that
they understood from the company that they had to cross the picket line or else
lose their jobs. Estes asked Page what they were to do. Page replied "read your
contract." On the second occasion Page said "the only thing that I can tell you is
what I have been telling the other guys, read your contract." When asked if they
were protected Page replied "you are protected by the contract, as individuals, we
don't have to go across the picket line." Page again told him to read the contract.
Page told him " I can't tell you not to and I can't tell you to" cross the Viner picket
line. Estes testified that one time after Page told him to read the contract Estes re-
plied, "'We knew enough not to cross the picket line,' and I got it." That Estes
had "gotten it" was further indicated by • the fact that before he talked with Page,
Estes and the other regular driver at Capitol had already refused to cross the Viner
picket line.
4. Graves
Myron Whitcomb is a working foreman at Graves, and for the last several years
has also been the Union's designated steward there. As steward he collects dues
from other members, receives the mail, posts union notices on the union bulletin
board, and presents grievances on behalf of the employees to "Mr. Graves," consisting
mostly of questions concerning hours worked by the men.
Prior to the strike at Viner Brothers the drivers of Graves, consisting of 8 or 9
drivers, picked up and delivered merchandise at Viners plant, but after the strike
began at Viners they did not.
About the first of the year, 1958, Graves received a call from Viner Brothers, and
Whitcomb himself went out to Viners' Odlin Road plant on instructions from his
"boss" to "pick up at Viners." The record is silent as to whether he first asked one
of the other drivers to go. As he approached the plant he saw a number of men
sitting with some signs leaning up against the cars. As he approached, three or
four men got out of the cars and came over to his truck, and one of the men told
him that George Burns was down the road a little way. The witness pulled his
truck along the curbing and parked and walked down about 30 or 40 feet to where
George Burns was sitting in a parked automobile. Whitcomb asked Burns "about
going through the picket line, whether we should not, and he told me it was up to
me. He couldn't tell me to or he couldn't tell me not to." Burns said something
about a contract and something about a clause in the contract but the witness,
Whitcomb, professed not to know what clause he was referring to. The conversation
with Burns lasted about 1 minute, and then Whitcomb went back to his truck and
turned around and drove away, not going through the picket line and not picking up
the merchandise. Shortly after his conversation with Burns and on the same or fol-
lowing day, Whitcomb placed a long distance telephone call from Bangor to Port-
land, Maine, and talked with Al Page, secretary and treasurer and business agent
of the Local. Whitcomb asked Page whether he should or should not go across the
picket line, and , according to Whitcomb, Page "wouldn't tell me to go across it
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he wouldn't tell me not to go across it." Page told him to read his contract.
The witness said, however, that he has not looked at the contract yet. Whitcomb
testified on cross-examination that he understood from Page that it was entirely his.
own decision to make as to whether or not he should cross the picket line.
At an undisclosed date after his above conversations with Burns and Page, Whit-
comb told the morning crew at Graves, consisting of three men besides himself, that
"anything for Viner, they could bring it to us, we didn't deliver it." Asked if the
questioner was to understand that Whitcomb told the employees that they could leave
the Viner merchandise in the shed, Whitcomb replied "that is right." The shed is.
the Graves terminal. The time of this conversation with the men was placed after
his above conversations with Burns and Page by Whitcomb's statement that nothing
else had been said to him by any business agent of the Union other than what Burns.
and Page had told him as already testified by him. He said that no one in the Union
had told him not to cross the picket line or to cross the picket line. On cross-
examination the witness stated that "I told them to leave the freight on the platform.
in the terminal and Viner would come and pick it up" after receiving a telephone call
from the traffic manager at Viner Brothers, George Chebba, that that is the way
they would handle it. Whitcomb testified that when he gave those instructions to
the men under him he was acting as foreman rather than as steward. The question
arises as to which shoe, in fact, he was wearing.
As foreman, Whitcomb's duty lay in executing Graves' policy with respect to.
Viner goods during its strike. This policy, previously given to Whitcomb by his.
"boss" was to "pick up at Viners." There was no showing that this policy had
changed as a result of Whitcomb's refusal to carry it out after his discussions with
Burns and Page. Whitcomb's instructing the men under him not to handle the-
Viner goods was not, therefore, an act of the working foreman, and must, therefore,
have been an act of the union steward. I so find. As an act of the union steward,.
it was consistent with the Union's policy, found herein.
C. Conclusions
Section 8(b)(4)(A) of the Act makes it an unfair labor practice for a labor
organization or its agents to engage in, or induce or encourage the employees of any-
employer to engage in
a concerted refusal in the course of their employment to . . . transport,
or otherwise handle . . . any goods . or to perform any services, where-
an object thereof is: (A) forcing or requiring any employer . . . to cease . . .
handling, transporting . the products of any other . . . manufacturer, or-
to cease doing business with any other person.
1. The concerted refusal
That there was, at least from time to time, a concerted refusal by the union mem-
hers to transport and handle products to and from the Viner plants cannot be doubted
on this record. On November 4, 1957, the Union notified each of nine carriers.
that their union member employees would not cross the Viner picket line and would
not handle Viner merchandise. Thereafter the various trucking companies which
had serviced Virier prior to the strike informed Viner that Viner would have to
do its own transporting of merchandise to and from the carriers' docks-which fact,
in the light of the entire record and in the absence of any evidence that the carriers
instructed the employees not to handle or transport, indicates that the employees of
the trucking companies were concertedly refusing to transport as promised in the
Union's letter. This conclusion was corroborated by other testimony. Terminal
Manager Hobson of Fox & Ginn testified that during the period after November 1,
his local drivers who customarily serviced Viner Brothers' plants refused to do so,
and the transporting was done by Viner trucks. This was not disputed by one of
the regular drivers, Robert Golightly, although within a few weeks Golightly was
again making his regular stops at Viner's Odlin Road warehouse. About the first
week in January 1958, Fox & Ginn assigned a nonunion man to pick up and deliver
at Viner's, and since January 20 Golightly has not stopped at Viner's. Although prior
to the regular January meeting of the Union, Fox & Ginn's employees handled
Viner merchandise on Fox & Ginn's platform, beginning about January 20, the
day after the union meeting, most of the day crew, consisting of eight or nine em-
ployees, refused to handle it, and "the majority of them" continued refusing to handle
Viner merchandise up to the time of the hearing herein on April 2.
As for Penobscot, from about November 4 until January 1, Viner itself transported
its merchandise to and from the Penobscot dock, and after January 1, Terminal'
Manager Feldman of Penobscot did the transporting himself. On the entire record:
TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1071
this is evidence of a concerted refusal by Penobscot employees to transport Viner
goods.
As for Capitol, its two regular drivers refused to pickup and deliver at Viner's
during the strike, and although pressed by Capitol's management to cross the picket
line and transport Viner products, they continued to refuse to do so. As for Graves,
prior to the Viner strike Graves, which had eight or nine drivers, picked up and
delivered at Viners, but during the Viner strike it did not. The first time Graves
was called to pick up at Viners (presumably the first time during the strike) Graves'
foreman himself drove out rather than one of the drivers. Prior to the strike the
foreman, Whitcomb, had not himself picked up and delivered at Viner's-"No, not
too often."
2. Whether the concerted refusal was induced and encouraged by the Union
The next question is whether the concerted refusal of the employees of the carriers
was induced or encouraged by the Union. After consideration of all the evidence,
I conclude that it was.
In construing the meaning of the words "induce" and "encourage" as they appear
in Section 8(b)(4), the Supreme Court has said, "the words `induce' or `encourage'
are broad enough to include in them every form of influence and persuasion."
International Brotherhood of Electrical Workers, Local 501 et al. (Samuel Langer)
v. N.L.R.B., 341 U.S. 694, 701-702. In another case, where the question was whether
a union had induced a strike by telling its members that it did not have a contract
with the employer in question, the Board observed, "A strike call may be given
in a forthright fashion, or informally in a manner that is understood by the initiated."
Amalgamated Meat Cutters, etc., Local No. 421 (The Great Atlantic and Pacific
Tea Company), 81 NLRB 1052, 1057. See also Local 1016, United Brotherhood
of Carpenters, et al. (Booher Lumber Co., Inc.), 117 NLRB 1739, 1744-1745;
Truck Drivers and Helpers Local Union No. 728, et al. (Genuine Parts Company),
119 NLRB 399.
That the refusal to transport and handle activity of the carriers' employees was
an integral part of a program formulated and effectuated by the Respondent Union
as a labor organization, inspired and sponsored by its business agents and officers-
its admitted agents-cannot be doubted on this record. Thus, the "hot-cargo"
activity of the carriers' employees began at about the time of the Union's letter of
November 4 to the carriers announcing the "hot-cargo" program, and the refusal
to transport by the employees of the four carriers here principally involved continued
through November and December and after. Thus, beginning the day after the
Union's January meeting, at which a business agent related the substance of the unfair
goods clause, including the nonhandling of unfair goods, the day crew at the Fox &
Ginn dock started refusing to handle Viner goods-which refusal was still continuing
at the time of the hearing herein.
The Union's letter announcing the "hot-cargo" program was on the Union's
letterhead and was signed not by all members who intended to participate in the
program, but by a business agent. In substance that program was that the Union
was speaking for its members, and that during the Viner strike the carriers' employees
would not cross the picket line or handle Viner merchandise. The program was not
that the carriers were requested not to handle or transport the goods, or that the
Union's members would exercise an individual choice 5 as to whether they would
cross or handle; rather, the program was that the employees as a group had already
made a decision, which was that it was the intent of our members-not of each of
our members or some of our members but of our members collectively-to refuse to
cross or handle during the strike.6
In its letter the Union explicitly based its position upon article IV of the contract,
and in its statements to employees the union agents referred the employees to the
contract or said, "read the contract." Upon reading the contract it would have been
clear to any employee that only article IV in any way applied to the Viner strike
and picket line. Upon reading article IV it would have been clear to any employee
that the Union did not wish Viner goods handled or transported, for the contract
to which the employee was referred for guidance referred only to refusing to handle
or transport and a strike in support of the refusal, and said nothing about rights, if
Cf. Truck Drivers, et at. (Genuine Parts Company), 119 NLRB 399.
To be noted, also, is that the Sanctions paragraph-number 5-of the unfair goods
article, article IV, of the contract, stated that the Union may strike (providing other
conditions are met) if an employer insists that one employee handle unfair goods or go
through a picket line after they have elected not to, which shows that in fact the contract
contemplated a collective decision rather than individual decisions as to transporting
and handling.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any, to cross a picket line and to handle unfair goods. Thus instructing employees
to "read the contract," or reading article IV or the "general gist" of it to them, was
but a way of giving them a signal , "a wink, a nod" 7 that Viner merchandise was not
to be transported or handled , and was just as much an inducement or encouragement
of a refusal as was a direct instruction to that effect . Being told to "read the con-
tract" or words to that effect , was all the signal employees needed that Viner goods
were "unfair goods" and were not to be handled or transported . As truckdriver
Estes stated to Page, "We knew enough not to cross the picket line ." (Emphasis
supplied. ) As Estes testified when Page told him to "just read in your contract,"
Estes "got it." As has been seen, when referred to the contract by two business
agents, Whitcomb did not read the contract but did not cross the picket line.8
In the .light of the foregoing I conclude and find that Respondent Union induced
and encouraged its members employed at the several trucking companies here in-
volved not to transport or handle Viner freight by the following statements in the
following instances:
(a) During December 1957, on the Fox & Ginn dock, when Business Agent
George Burns told Terminal Manager Hobson , within the hearing of employees,
that, "you shouldn 't be handling this freight ," and told Reginald Bell, within the
hearing of employees , "read your contract."
(b) During December 1957, in the office on the Fox & Ginn dock, when Business
Agent Burns told a group of employees , "that we didn 't have to go through a picket
line if we didn 't want to. It was written in our contract that way."
(c) During late November 1957, at the office at Penobscot's terminal , when Albert
Page, business agent, secretary and treasurer , told Penobscot 's terminal manager,
Feldman, in the presence of at least three Penobscot drivers, "you know your men
don't have to go through that picket line."
(d) During late November 1957, at the office at Penobscot 's terminal , when Page
exhibited a copy of the contract to the employees and told them that they did not
have to go through the picket line. The main point Page was getting over by speak-
ing to Feldman in the presence of the employees and by then exhibiting the contract
and speaking to them as he did, was that the drivers did not have to cross the picket
line-and this principal point was not diminished by Page's possible expression of
the thought that the choice was theirs.
(e) During December 1957 and January 1958 , over the telephone , when Page
told driver Estes, of Capitol , "read your contract . the only thing that I can tell
you is what I have been telling the other guys , read your contract . . . you are pro-
tected by the contract , as individuals , we don't have to go across the picket line . .
read the contract ." Although during one or both of these telephone conversations
Page also expressed the thought that he could not "tell you not to and I can't tell you
to" cross the picket line, this did not diminish the main thrust of his advice which
was that under the contract they did not have to cross and that if they did not they
were protected .9
(f) During January 1958 , on the road some 30 or 40 feet from the picket line at
the Odlin Road plant, when Business Agent George Burns referred Myron Whit-
7 Cf. U.S. v. International Union , United Mine Workers of America , 77 F. •Supp.
563, 567.
8 Cf. Capital Paper Company and Consolidated Sales , Inc., 117 NLRB 635, 644-645.
8 That Page 's remarks were made to only one employee in these instances does not
negative the fact that employees were being induced or encouraged to engage in a con-
certed refusal . Estes' testimony shows beyond any doubt that he was speaking for both
himself and the other driver at Capitol, and that Page must have so understood. Thus,
Estes testified that he told Page that 'zve had to pick them [Viner products] up or
else.'. . . We knew enough not to cross the picket line . . . . What are we going to do?
We are in the middle." Further , Page's remarks to one employee of one trucking com-
pany cannot be viewed in isolation on this record which shows a course of action by the
Union involving the employees of a number of companies . Where, as here, the Union's
letter of intention of November 4 went to nine trucking companies , including Capitol, the
incidents in question most be viewed as but one of a series of related events, so that the
fact that only one employee was talking with Page on the telephone becomes wholly im-
material . -Cf. Capital Paper Company and Consolidated Sales, Inc., 117 NLRB 635, 645,
footnote 18, and cases cited therein . Cf. also, Warehouse d Distribution Workers' Union,
Local 688, et at. (Coca-Cola Bottling Company of St . Louis), '115 NLRB 1506, 1512.
Further , the record establishes that at the time of Estes' conversations with Page,
Estes and the other regular Capitol driver , James Runnels , were already concertedly re-
fusing to transport Viner goods , so that Page ' s remarks may be considered as inducement
or encouragement to Estes that he continue to engage in such concerted !refusal. Cf.
Southwestern Motor Transport Co., 115 NLRB 981, 987.
TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1073
comb,10 working foreman and union steward at Graves, to a clause in the contract.
Although Whitcomb had come out to the Odlin Road plant to pick up Viner mer-
chandise pursuant to a call from Viner and instructions from his "boss" to "pick up at
Viners," and without knowing, according to Whitcomb's testimony, "that the picket
line was there," Burns' presence near the scene and what Burns said to Whitcomb
in a 1-minute conversation, convinced Whitcomb that he should not at that time cross
the picket line and pick up the merchandise.
(g) During January 1958, shortly after Whitcomb's conversation with Burns
referred to in (f) above, when over the telephone Al Page directed Whitcomb 11 to
read the contract for the answer as to whether Whitcomb should cross the Viner
picket line. That this alone was sufficient inducement not to cross, even though
accompanied by Page's refusal to tell Whitcomb that he should or should not cross,
was indicated by the fact that even though both Burns and Page referred to the con-
tract, and Page instructed him to read it, Whitcomb has not since that time referred
to or read the contract.
(h) At the union meeting on January 19, 1958, when Burns referred those pres-
ent, who worked for most of the trucking companies in the Bangor area servicing
Viner Brothers, to article IV of the contract, told them in substance how it read, and
said that they could decide for themselves whether to go through the picket line and
that if they did not go through they could not be discharged for it.
3. Union responsibility for statements of stewards
The question arises as to whether the Union is responsible also for certain induce-
ments or encouragements to concerted action engaged in by two of its stewards, Glid-
den at Fox & Ginn, and Whitcomb at Graves. As has been found above, during
three conversations with Golightly 12 Glidden instructed Golightly not to go through
the Viner picket line; and on one occasion Whitcomb, as steward, instructed three
employees to leave Viner merchandise on the Graves dock and told them that they
were not to deliver it to Viner, that Viner would come and get it.
In the collective-bargaining contract the employers recognized "the right of the
Union to designate a Steward. ." That Glidden and Whitcomb were designated
as stewards by the Union may be concluded from the fact that each was the only
steward at his respective dock, that under the contract each had super seniority, and
that the Union did not claim that the stewards were not designated by it. In their
capacity as steward, Glidden and Whitcomb each received mail from the Union
which Whitcomb, and presumably Glidden also, posted on the union bulletin board
at their docks. Thus they served as channels of communication from the Union. As
steward each collected dues from the other employees who, under the union-shop
clause in the contract, were required to be members of the Union, and as the on-the-
job representative of the Union each was available to assist the members in minor
grievances.
Under the contract Fox & Ginn and Graves recognized the right of the Union to
designate a steward "to handle such Union affairs as may from time to time be
delegated to him by the Union." The contract provided further that, "The duty of
the Steward . . . shall be to report to the Union any violations or failure to comply
with the terms and conditions of this Agreement."
As the Board has consistently held, under the amended Act the Board is to be
governed by the common-law rules of agency. The Board is guided by the rule of
agency that,
a principal may be responsible for the act of his agent within the scope of the
agent's general authority or the "scope of his employment" if the agent is a
servant, even though the principal has not specifically authorized or -indeed may
have specifically forbidden the Act in question. It is enough if the principal
actually empowered the agent to represent him in the general area within
which the agent acted.13
1° Although Burns' -remarks were made to only one person, they amounted to induce-
ment or encouragement of a concerted refusal inasmuch as they were directed at the
Union's steward at Graves. General Millwork Corporation, 113 NLRB 1084, footnote 6.
See also footnote 9, supra.
11 See footnote 10, supra.
12 See footnote 9, supra.
13 Perry Norvell Company, 80 NLRB 225, 244, citing Sunset Line and Twine Company,
79 NLRB 1487, 1509.
525543-60-vol. 121-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union's invocation of article IV and its apprising some nine trucking com-
panies in the area that it wished compliance with article IV of the contract, indicated
its desire to make a success of its boycott of Viner products. Whatever governing
force perpetuated the product boycott thereafter flowed from the Union, acting
through its officers, business agents, and, presumably, stewards. In the contract the
stewards were given general authority in the field of policing the contract, for they
were to report to the Union any violation or failure to comply with the contract.
In order to be informed as to possible violations of article IV it was necessary for
stewards to discuss the product boycott of Viner goods with the carriers' employees
as well as with the carriers themselves. It follows that in speaking to Golightly and
the Graves employees as they did both Glidden and Whitcomb were acting within
the scope of their general authority.
Of significance, also, (in Genuine Parts Company two members of the Board
considered it "controlling," 119 NLRB 399), is that-
so far as all the parties dealing with Union stewards are involved, the stewards
were the Union on the job and that they were expressly vested with sufficient
authority so to act, as to warrant the inference that the actions here attributed
to them fell within the scope of the delegated powers.
Thus, during the evening Terminal Manager Hobson asked Glidden (and only
Glidden insofar as the record shows), who was obviously on the night shift, why the
boys (referring clearly to the day shift) were refusing to handle Viner shoes. There
is no evidence that Hobson put this question to George Burns, the union business
agent stationed in Bangor, or to any other business representative of the Union.
Thus, at no time did Golightly question Glidden's authority as a steward to instruct
him concerning the picket line as he did. Thus, the Viner strikers complained to
Glidden about Golightly's crossing the picket line, rather than to George Burns, and
three times they contacted Glidden about it.
Upon the above considerations and all the facts in the record I conclude that
Glidden and Whitcomb had general authority from the Union, and in the complained-
of statements to Golightly and the Graves employees, were acting within the scope of
their general authority.14 It follows that the Union was responsible for their acts,
which amounted to inducement or encouragement. These conclusions are made
notwithstanding those clauses in article III of the agreement, given above, which pur-
port to limit the authority of a steward or how the contract shall be construed. Sun-
set Line and Twine Company, 79 NLRB 1487, 1509, including footnote 44.
4. Object of the concerted refusal
The next question is whether an object of the concerted refusal was to force or
require the trucking companies, particularly Fox & Ginn, Penobscot, Capitol, and
Graves, to cease handling or transporting Viner merchandise, or to cease doing
business with Viner Brothers. On this record there can be no doubt that such was
an object-indeed the record contains no proof of any other-and Respondent has
not contended otherwise in its brief. The Union was obviously trying to assist
the Viner strikers during their strike by cutting off the flow of merchandise to
and from the Viner plants, and to that end the Union was seeking to force the carriers
to cease handling or transporting such merchandise and to cease doing business
with Viner during the strike.
As in this case agents of the Respondent Union, Burns and Whitcomb, with an
unlawful objective appeared in person at the premises of the secondary employers,
Fox & Ginn and Graves, and there successfully enlisted the aid of secondary em-
ployees in support of the primary strike at Viner; and as at the January 19, 1958,
membership meeting, Respondent Union in substance advised employees not to
handle and transport Viner merchandise without respect to location-which was
understood and executed by Fox & Ginn employees as meaning not to handle the
merchandise at the dock of the secondary employer, Fox & Ginn-this case does.
not involve- the troublesome problems which arise in the common situs cases 15 or
the cases involving the legality of and the latitude given striking and picketing which
14 Cf. cases cited in footnote 37 of Genuine Parts, 119 NLRB 399. Cf. also E. G. De Lia,
& Sons Construction Corp., 117 NLRB 1401, 1411-1413.
15 See Retail Fruit & Vegetable Clerks' Union, Local 1017, at at. (Crystal Palace
Market), 116 NLRB 856; Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union
A. 390, et at. (U & Me Transfer et al.), 119 NLRB 852. Further to be noted is the fact
that in the common situs cases the common situs is occupied by both the primary and
secondary employers, which is not the fact here where the primary situs is occupied by
the primary employer and each secondary employer occupies his own separate situs.
TRUCKDRIVERS, WAREHOUSEMEN & HELPERS, LOCAL 340 1075
are primary in character and which invite action only at the situs of the primary
dispute.16
5. Whether the carriers acquiesced in or consented to the boycott
All the elements of a Section 8((b)(4) (A) violation being present-inducement,
refusal to work, and unlawful objective-the next question is whether the carriers
voluntarily observed the hot-cargo provision of the contract or acquiesced in, or
consented to, the boycott of Viner goods. The entire record establishes that they
did not. Thus, Terminal Manager Hobson of Fox & Ginn told Burns that "this
freight must move" and that if the union members would not handle it Hobson
would do it himself-and on at least two occasions Hobson himself loaded Viner
shoes which the union members had refused to load. Terminal Manager Feldman
of Penobscot himself picked up and delivered at Viners, and there was no proof
that Penobscot consented to or observed the boycott. Prior to driver Estes' telephone
calls to Business Agent Page, one of Estes' "bosses," Herb Allen, had told Estes
that he and the other Capitol driver "had to" pick up Viner merchandise "or else."
Whitcomb's "boss" at Graves instructed him to "pick up at Viners." On this evidence
and the entire record I conclude that Fox & Ginn, Penobscot, Capitol, and Graves
did not voluntarily observe the hot-cargo provision or acquiesce in or consent to the
boycott of merchandise to and from Viner during the Viner strike.
6. Final conclusions
Respondent Union's principal defense is that the hot-cargo provision of its contract
with the trucking companies made permissible conduct otherwise violative of Section
8(b) (4) (A) of the Act. Since the hearing and the filing of the Union's brief herein
the Supreme Court has determined otherwise.17
Under all the circumstances, on the basis of the entire record considered as a
whole, I conclude that Respondent Union induced or encouraged employees of Fox
& Ginn, Penobscot, Capitol, and Graves to engage in a concerted refusal in the
course of their employment to transport, or otherwise handle or work on any
merchandise to or from Viner Brothers during its strike where an object thereof was
to force or require these trucking companies to cease handling or transporting such
merchandise or to cease doing business with Viner Brothers during the strike,
Respondent Union thereby violating Section 8(b)(4) (A) of the amended Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of Viner Bros., Inc., described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has violated Section 8(b) (4) (A) of the Act,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Truckdrivers, Warehousemen and Helpers, Local No. 340, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2(5) of the Act.
2. By inducing or encouraging employees of Fox & Ginn, Penobscot, Capitol,
and Graves to engage in a concerted refusal in the course of their employment to
transport, or otherwise handle or work on any merchandise to or from Viner Bros.,
Inc., where an object thereof was to force or require Fox & Ginn, Penobscot, Capitol,
and Graves to cease handling or transporting such merchandise or to cease doing
business with Viner Bros., Inc., Respondent Union violated Section 8(b) (4) (A)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
11 See Interborough News Company, 90 NLRB 2135; Pure Oil Company, 84 NLRB 315.
" Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL et al.
(Sand Door d Plywood Co.) v. N.L.R.B., 357 U.S. 93.