Tulsa General Drivers

National Labor Relations Board - Board Decisions

Aug 7, 1958

121 N.L.R.B. 324 (N.L.R.B. 1958)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
3 By engaging in, and by inducing or encouraging employees of General Electric
Company, Utica Drop Forge & Tool Company, Nugent's Confectioners, Vick's.
Bros Printers, John V Parsons Trucking Co, Western Express Company, and
Revere Copper & Brass Company to engage in a strike or concerted refusal in the-
course of their employment to handle the products of The Ailing & Cory Company,
Utica, New York, where objects thereof were (A) to farce or require such employers.
to cease doing business with The Ailing & Cory Company, and (B) to force or
require The Ailing & Cory Company to immediately recognize and bargain with
said labor organization as the representative of its employees without being certified
as the representative, of such employees under the provisions of Section 9 of the
Act, the Respondent Union and its Agent, William A Belden, business representa-
tive, have engaged in and are engaging in unfair labor practices within the meaning
of Section 8 (b) (4) (A) and 8 (b) (4) (B) of the Act, and also 8 (b) (1) (A)
4 By picketing for recognition as the exclusive bargaining representative when
it did not represent a majority of the employees of The Ailing & Cory Company,
Respondent Union and its Agent, William A Belden, business representative,
restrained and coerced such employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby violating Section 8 (b) (1) (A) of the Act9
5 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act
(Recommendations omitted from publication 7
9 See Curtis Brothers, Inc, 119 NLRB 232
Tulsa General Drivers, Warehousemen and Helpers , Local No.
523, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Cooper Supply
Company. Case No 16-CC-81 August 7,1958
DECISION AND ORDER
On April 1, 1958, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the°
Respondent 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 Inter-
mediate Report attached hereto Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief 1
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning]
The Board has considered the Intermediate Report, the stipulated
record upon which it is based, the exceptions, and the brief of the,
Respondent,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner 3
i The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, exceptions, and brief adequately present the issues and positions of the parties
2 The Supreme Court's recent decision in the Sand Door ease disposes of Respondent's
contention that the "hot cargo" clause in its agreements with the carriers who handled
Cooper's freight is a complete defense to its alleged violation of Section 8 (b) (4)
Local 1976, United Brotherhood of Carpenters and Joiners of 4.meriea. AFL, et at v
NLBB,357US93
8 Truck Drivers and Helpers Local Union No 515, etc (Chattanooga Warehouse Jr
Cold Storage Company and Baggett Transportation Company), 121 NLRB 51
121 NLRB No 54
TULSA GENERAL DRIVERS
ORDER
325
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 Tulsa General Drivers, Ware-
housemen and Helpers, Local No. 523, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, and
its officers, representatives, agents, successors, and assigns, shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of any employer other than Cooper Supply Company
to engage in, a strike or concerted refusal in the course of their em-
ployment to use, manufacture, process, transport, or otherwise handle
•or work on any goods, articles, materials, or commodities, or to per-
form any services where an object thereof is to force or require any
employer or other person to cease using or handling the products of
Cooper Supply Company, or to cease doing business with that com-
pany, or to force or require Cooper Supply Company to recognize or
bargain with the Respondent Union as the representative of its em-
ployees unless and until the Respondent has been certified as the repre-
sentative of such employees under 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 its business office in Tulsa, Oklahoma, and at all other
places where notices to its members are customarily posted, copies of
the notice attached hereto marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by an authorized representative of the
Respondent Union, be posted by it immediately upon receipt thereof,
and be maintained for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by the
Respondent Union to insure that the notices are not altered, defaced,
or covered by any other material.
(b) Cause a copy of the notice ,to be printed, at the Respondent
Union's expense, in a daily newspaper of general circulation in Tulsa,
Oklahoma.
'(c) Mail to the Regional Director for the Sixteenth Region signed
copies of the notice attached hereto, for, posting at the premises of
Cooper Supply Company and of freight carriers within its territorial
jurisdiction employing members of the Respondent Union, the com-
{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."
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
panies willing, in places where notices to employees are customarily
posted.
(d) Notify the Regional Director for the Sixteenth Region in.
writing, within ten (10) days from the date of this Order, as to what
steps it has taken to comply herewith.
APPENDIX
NOTICE TO ALL MEMBERS OF TULSA GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS, LOCAL No. 523, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage the employees
of any employer other than Cooper Supply Company to engage
in, a strike or a concerted refusal in the course of their employ=
ment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities, or to
perform any services, where an object thereof is to force or require
any employer or other person to cease using or handling the
products of Cooper Supply Company, or to- cease doing business
with that company, or to force or require Cooper Supply Company
to recognize or bargain with us as the collective-bargaining repre-
sentative of any of Cooper's employees unless and until we are
certified as such representative under the provisions of Section 9
of the Act.
I
TULSA GENERAL DRIVERS, WAREHOUSEMEN
AND HELPERS, LOCAL No. 523, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60' days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed September 9, 1957, and an amended charge filed September
16, 1957, by E. R. Cooke, vice president , and C. A. Kothe, attorney on behalf of
Cooper Supply Company, herein called Cooper, the General Counsel of the Na-
tional Labor Relations Board , by the Regional Director for the Sixteenth Region
'(Fort Worth, Texas), issued his complaint dated October 18, 1957, against Tulsa
General Drivers, Warehousemen and Helpers , Local No. 523, International Broth-
TULSA GENERAL DRIVERS. 327
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called the Respondent Union, alleging that the Respondent Union had engaged
in and was engaging in unfair labor practices within the meaning of Section 8
(b) (4) (A) and (B) and Section 2 (6) and (7) of the National Labor Relations
Act, 61 Stat. 136.
With respect to the unfair labor practices, the complaint alleged in substance
that: On or about August 5, 1957, Respondent Union demanded that Cooper rec-
ognize and bargain with it as the collective-bargaining representative of Cooper's
employees, although Respondent Union had not been certified as the representative
of such employees under the provisions of Section 9 of the Act; Respondent Union
since on or about August 12, 1957, followed Cooper's trucks to the premises of
Cooper's customers and of carriers with whom Cooper transacts business, and
there picketed so long as Cooper's truck was at said premises; Respondent Union
in furtherance and support of its demand upon Cooper for recognition and bar-
gaining, on or about August 28, 1957, posted and has since so maintained at the
premises of carriers doing business with Cooper (whose employees are members
of and are represented by Respondent Union) a notice stating that Cooper is "un-
fair," that Respondent Union is on strike against Cooper, and that the collective-
bargaining agreement in effect between Respondent Union and such carriers con-
tains the provision "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"; and by following Cooper's
trucks and posting the notice as indicated Respondent Union induced and en-
couraged the employees of specifically named common carriers to engage in a con-
certed refusal in the course of their employment to process, transport, or other-
wise handle freight destined to or from Cooper, with an object thereof being the
forcing or requiring of said carriers to cease handling, transporting, or otherwise
dealing or doing business with Cooper, and further with the object of forcing
Cooper to recognize or bargain with Respondent Union as the representative of its
employees; even though said organization has not been certified under the pro-
visions of Section 9 of the Act.
Copies of the complaint accompanied by a notice of hearing thereon were duly
served upon the Respondent.
On October 25, 1957„the Respondent Union served and filed its answer in which
it denied all allegations of the complaint attributing to it the commission of unfair
labor practices. Among affirmative averments in its answer Respondent Union
alleges that the above -mentioned notice was posted at the locations of carriers which
were signatory to contracts known as the Southern Conference Local Freight For-
warding Pickup and Delivery Agreement and Southern Conference Over-the-Road
Motor Freight Agreement which contracts were in full force and effect during all
times mentioned herein and which contained a "hot cargo clause." The Re-
spondent Union further alleges and states that the validity of the "hot cargo clause"
contained in the said contracts constitutes a complete defense to any alleged viola-
tions of the Act.
After the filing of the amended charge, but before issuance of a complaint, the
Regional Director filed in the United States District Court for the Northern Dis-
trict of Oklahoma a petition for injunction pursuant to the provisions of Section
10 (1) of the Act.' Following the hearing on October 16, 1957, the court issued
an order denying the petition for an injunction.
On January 28, 1958, the parties to this proceeding entered into a written stipu-
lation for the submission of the issues to a Trial Examiner, without a hearing for
the taking of testimony. The parties -agreed that if named competent witnesses
were called they would testify under oath to certain statements and identify cer-
tain documents and exhibits as set out in the stipulation; that such agreed state-
ments, documents; and exhibits together with the testimony of witnesses contained
in the official reporter's transcript of the hearing before the court in the Section
10 (1) injunction proceeding were to constitute the entire record in this case;
and that on the basis of the record as stipulated, a duly designated Trial Examiner
could make findings of fact and conclusions of law and issue a recommended
order to which any of the parties could file exceptions and pursue all other pro-
'The Petition was docketed as Case No. 4330-Civil, and was entitled "Edwin A.
Elliott, Regional Director of the Sixteenth Region of the National Labor Relations
Board, for and on behalf of the National Labor Relations Board, Petitioner vs. Tulsa Gen-
eral Drivers, Warehousemen and Helpers, Local Union No. 523, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent."
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cedures before the Board, to which said parties are entitled under the Act or the
Board's Rules and Regulations. No briefs were filed by the parties.
Upon the entire record in the case I make the following:
FINDINGS OF FACT
1. COMMERCE: THE BUSINESS OF COOPER
Cooper Supply Company is a single proprietorship, existing by virtue of the
laws of the State of Oklahoma, with its principal office and place of business in
Tulsa, Oklahoma, where it is now and has been at all times material hereto con-
tinuously engaged in the sale of plumbing, heating, and sheet metal supplies at
both wholesale and retail. In the course and conduct of its business operations,
Cooper purchases materials of the value of approximately $1,500,000 a year and
approximately 90 percent of such materials is shipped to Cooper for delivery to
points and places outside the State of Oklahoma. I find that Cooper is engaged in
commerce, and that its operations affect commerce, within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Tulsa General Drivers, Warehousemen and Helpers, Local No. 523, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is
a labor organization within the meaning of Section 2 (5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background
-In the normal course of business, Cooper employs three truckdrivers to operate
its trucks within the city limits of Tulsa, to deliver materials from its yard to the
places of business of its customers, or to the job sites where customers were installing
plumbing and heating equipment. Thus, the 2 drivers operating the 1-ton trucks
made an average of 8 to 10 trips a day from Cooper's yard, and the driver of the 2-ton
truck left the yard with deliveries 4 to 8 times daily. Cooper also had in its employ
nine warehousemen, helpers, and stock clerks to handle incoming and outgoing
freight.
In addition to making its own deliveries, Cooper utilized the services of various
motor carriers, all of whom employed union personnel, for its inbound freight and
for freight shipments outside Tulsa .2 Normally such inbound and outbound freight
shipments were either delivered to or picked up at Cooper's yard.
B. Events leading up to the picketing
On or about July 30, 1957, Respondent Union commenced an organizational
campaign among Cooper's truckdrivers, receiving clerks, warehousemen, and helpers.
Prior to August 5, the Union received authorizations from 9 of the 12 employees
to represent them in collective bargaining.
On August 5, 1957, Ravis McCarter, assistant business agent of the Respondent
Union, accompanied by Organizer Hal Wachther, called on E. R. Cooke, general
manager of Cooper. McCarter told Cooke that Respondent Union represented
more than a majority of Cooper's employees in an appropriate bargaining unit and
requested that Respondent Union be recognized as the bargaining agent for the
said employees ,and that a meeting be arranged to negotiate a contract. Cooke
stated he could do nothing about the request until the "powers to be" were consulted,
and secondly Cooper wanted Respondent Union to prove its status as exclusive
bargaining representative, via a consent election. McCarter agreed to the consent
election providing Cooke would agree not to interfere with the employees' choice
of a bargaining representative or influence them to revoke the authorizations which
they had given Respondent Union to represent them in collective bargaining.
2 Included among the motor carriers were Ace Motor Express, Rocket Freight Lines,
Frisco Transportation Company, Santa Fe Trail Transportation Company, Lee Way
Motor Freight, Inc., B & B Lines, K & H Freight Lines, Inc, Jones Truck Lines; Viking
Freight Company, Powell Brothers Truck Line, and Universal Car Loading and Dis-
tributing Company. The said companies were signatories to either the Southern Con-
ference Local Freight Forwarding Pickup and Delivery Agreement or the Southern
Conference Over-the-Road Motor Freight Agreement, the collective-bargaining contracts
in existence between employers and local unions affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
TULSA GENERAL DRIVERS - 329
On August 9, 1957, McCarter again contacted Cooke and told him that Respondent
Union wanted to commence bargaining with Cooper immediately,3 and if Cooper
refused to grant exclusive recognition to Respondent Union, it would agree to a
local election to be held the following Monday, August 12, to prove its representative
status. Cooke told McCarter he could not give him an answer for 2 or 3 weeks.
On August 12, Respondent Union established a picket line in front of Cooper's
premises. Eight of Cooper's employees did not report for work, with 3 or 4 of
the employees performing picket duty. The pickets carried signs with the inscription,
"Cooper Supply Company Unfair and On Strike By Employees Members Teamster
Local 523."
C. Ambulatory Picketing
Shortly after the picketing began, the Cooper trucks were followed to the premises
of customers or to the receiving docks of motor carriers.
Bob Vanderpool, a Cooper truckdriver, testified that on or about August 16, while
driving a truckload of outbound freight to the Frisco Transportation Line receiving
dock, he was followed by a car containing, among others, a former Cooper employee,
whom he had seen on the picket line. When the Cooper truck was parked at
Frisco's dock, the person engaged in ambulatory picketing got out of his car with
the picket sign heretofore described, and began picketing in front of the Cooper
truck.
Vanderpool handed the bills of lading to the Frisco dock employee who examined
them and took them into the office. After a short period, the Frisco employee
returned the bills of lading to Vanderpool with the comment that he could not
accept any Cooper freight. Vanderpool thereupon returned the freight to the
Cooper yard.
Vanderpool also testified that on each occasion that he left the yard in a Cooper
truck to make a delivery to a customer, he was followed by a car, and upon parking
his truck at the customer's premises, those engaged in ambulatory picketing got
out of the car with picket signs and picketed in front of his truck.
Cooper truckdriver Shelby Thompson testified that on or about September 1
he was making a delivery to Tulsa Sheet Metal Co. He did not observe that his
truck was being followed. However, while the truck was being unloaded by Thomp-
son, a helper, and two Tulsa Sheet Metal employees in an alley behind the Tulsa
Sheet Metal Co., a picket whom Thompson had seen on the Cooper picket line
came up and started picketing around the truck. With the appearance of the
picket, one of the Tulsa Sheet Metal employees said, "Load the merchandise back
on the truck. We can't accept it."
There were other instances of following of Cooper trucks and picketing of the
trucks at customers' premises which were cumulative of the instances set out in detail
above and to which I shall not give further elaborations; suffice it to say that
Gordon Shryock, executive secretary, treasurer, and business agent of Respondent
Union, admitted giving orders to have Cooper trucks followed and picketed. Shryock
stated that he gave specific instructions that only the trucks and not the premises
were to be picketed.
D. Posting of "Hot Cargo Clause" Notices
On August 28 Enos Boyd, assistant business agent of Respondent Union , by direc-
tion of Shryock posted the following notice on the docks of some 30 to 40 carriers in
Tulsa , all of whom were in contractual relations with Respondent Union:
TULSA,GENERAL DRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL UNION NO. 523,
123 WEST 11th St.-TULSA 14, OKLA.
NOTICE NOTICE
TO ALL MEMBERS WORKING UNDER OUR OVER-THE-ROAD MOTOR
FREIGHT AGREEMENT AND OUR LOCAL FREIGHT FORWARDING
PICKUP AND DELIVERY AGREEMENT:
The COOPER SUPPLY COMPANY , 101 East Second Street , is ON STRIKE
by Teamsters Local 523, and is under charges of UNFAIR LABOR PRACTICE
by this Local Union.
s The stipulation entered into by counsel for the parties reveals that on August 8
McCarter had received information that Cooper sent employee Arden Fennell to see its
attorney, C A. Kothe, and that the latter attempted to persuade Fennell to revoke his
union authorization.
330 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both the Road and City Agreements, in effect between your employer and this
Local Union, read as follows under Article XI of each Agreement.
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.
GoRDON L. SHRYocx,
Exec. Secretary Treasurer and
Business Representative.
Boyd stated that as he went around town posting the notice on the various company
docks, he told the shop steward, or the foreman or just anyone who might be there,
to "have the men read this."
On or about September 5 a•second notice, similar in, all respects to the notice set
forth above except that there was added at the end of the second paragraph "and the
Company is declared UNFAIR by this Local Union," was given by Boyd to the
owners or managers of four carriers with the request that it be posted on their docks .4
Jess Cook, secretary-treasurer of Rocket and its Tulsa terminal manager, testified
that,his employees continued to handle Cooper's freight after the first notice was
posted until September 4. It appears that on September 3, Cooper brought two ship-
ments of freight consisting of pipe and long stainless steel sheets to the Rocket dock
Upon finding the following day that the Cooper's freight had not been moved, Cook
asked Gerald Rust, Respondent Union shop steward, why he was not handling the
freight. Rust, according to Cook, replied that he called the union hall and that Shry-
ock told him the men should individually refuse to handle the Cooper freights
Cook then approached each of the 12 to 15 dock employees individually and re-
quested each one to move Cooper's freight. All of the men refused.
Charles Bugh, general foreman for Santa Fe, testified that after the Respondent
Union's notice to employees was posted on his company's dock, the employees refused
to handle Cooper's freight. Bugh directed them to handle it, but they insisted in their
refusal, stating the freight was "unfair." Bugh stated further that the Cooper freight
is now being handled on the dock by his supervisory employees, but once it is placed
on the truck for over-the-road shipment it was being moved by his truckdrivers, who
are union members.6
Chester Fox, Tulsa terminal manager for Lee Way, testified that subsequent to the
posting of Respondent Union's notice on his dock, the employees refused to handle
Cooper freight, but did not give him a reason for so refusing. Fox stated that on
September 4, after he requested the employees to handle a shipment of Cooper's
freight and was refused, he personally handled it. The result was that the employees
struck on the following day for the reason that Fox, who was not a union member,
was handling freight on the dock without a union card. The Lee Way employees
returned to work the next day and have been handling Cooper's freight since
that time.
Evidence adduced by the Respondent Union reveals that several carriers handled
the Cooper freight without objection after the posting of the notice.? In most in-
stances, however, Cooper's freight was handled by the employees on the carriers'
docks but they refused to deliver it or pick it up from Cooper's yard, a function they
regularly performed prior to the posting of the notice.
4 The second notice was posted by Ace, B & B, K & H, and Rocket.
5In the stipulation between the parties it was agreed that if Rust were to testify
under oath he would state that he contacted the union hall but had not been given any
orders one way or the other concerning handling the freight but was advised that it was
up to each individual to determine whether or not to handle the freight.
Shryock would testify that he was contacted by Rust about the notice, and that
he never advised him or anyone else either to handle or not to handle Cooper freight
tendered to Rocket, but advised him that was a decision he could make and there would
be no repercussions whichever decision he made. At the injunction hearing in the Fed-
eral District Court, Boyd testified that he received many telephone inquiries from union
members working on the docks regarding the meaning of the notice. Boyd answered
that the notice spoke for itself and it meant what it said. In view of the findings'here-
inafter made, I find it unnecessary and will not resolve the conflicts in the testimony.
9 Jack Sheets, division superintendent of Santa Fe, with headquarters in Tulsa, testi-
fied to the same effect as Bugh.
7 Ace Motor and Frisco.
TULSA GENERAL DRIVERS -331
Conclusions
The issue for determination under the" pleadings of this case is whether because
%*f the above-described conduct, the Respondent Union violated Section 8 (b) (4)
(A) and (B) of the Act; or, in terms of the law and the facts in this case, whether
Respondent Union engaged in or induced or encouraged employees of Rocket,
Santa Fe, Lee Way, and other common carriers to engage' in a concerted refusal,
in the course of their employment to process, transport, or otherwise handle freight
destined to or from Cooper, with an object of requiring the said common carriers
to cease handling; transporting, or otherwise dealing or doing business with Cooper,
and further with an object of requiring Cooper to recognize or bargain with
Respondent Union as the representative of Cooper's employees, even though it
has not been certified as the representative of the employees under the provisions
of Section 9 of the Act. -
The Respondent Union defends its conduct on several grounds'as follows: With
respect to the notice, it states that its acts in notifying its membership of the exist-
ence of a labor dispute with Cooper was done in full compliance with existing law,
and that even after the notice was posted, employees of common carriers doing
business with Cooper continued to handle Cooper's freight and thus there has been
no concerted refusal to handle Cooper's freight; further, that it had the right to
advise its membership of the contents of various contracts entered into for and
on behalf of its members. It claims also that in the event that it should be found
that Respondent Union's notice induced and encouraged employees of secondary
employers doing business with Cooper to engage in a concerted refusal to handle
Cooper's freight, then the "Hot Cargo Clause" in its contracts constitutes a complete
defense to any alleged violations of Section 8 (b) (4) (A) and (B) of the Act;
and finally, as to its ambulatory picketing, it contends that its purpose was to
appeal to the public generally and that such an appeal was merely another method
of speech.
There can be no question that an object of Respondent Union's picketing of
Cooper was to require, by the use of economic pressure, Cooper to recognize and
bargain with Respondent Union as the representative of its employees, in spite of
a lack of Board certification. Such primary picketing of Cooper was clearly legal.
However, it is also clear that by such means the Respondent Union had adequate
opportunity to make known its labor dispute with Cooper, and to bring the full
weight of its picketing to bear on Cooper's employees. When Respondent Union
broadened the scope of its picketing by following Cooper trucks to the premises
of its customers and common carriers with whom Cooper did business, and there
engaged in picketing while the Cooper truck was on the premises of a stranger to
the dispute, it must be held, in the light of Board, decisions, to have had as an
object, the application of pressure on such stranger, to get him to cease doing
business with Cooper or, in the case of the carriers, to get the latter's employees
to cease handling or transporting Cooper's freight. See Brewery and Beverage
Drivers and Workers Local Union No. 67, etc. (Washington Coca-Cola Bottling
Works, Inc.), 220 F. 2d 380 (C. A., D. C.), enfg. 107 NLRB 299.
Picketing at the premises of a secondary employer (the common carrier), where
the primary employer may be adequately picketed at his own premises, absent
exceptional circumstances as enunciated by the Board in the Moore Dry Dock
Company case,8 is proscribed by the Act .9 Moreover under the Board's decision
in Ready Mixed Concrete Company, 116 NLRB 461, ambulatory picketing that
falls outside the purview of Moore Dry Dock is unlawful.10
8 Such exceptional circumstances are not present here. Moore Dry Dock Company,
92 NLRB 547.
9Washington Coca-Cola Bottling Works, Inc, supra; Denver Building and Construction
Trades Council (Gould & Preisner), 82 NLRB 1195, enfd. 341 U. S. 675; Local 74,
United Brotherhood of Carpenters, etc. (Watsonrs Speciality Store ), 80 NLRB 533,
enfd. 341 U. S 707; United Brotherhood of Carpenters, etc, at al. (Wadsworth Build-
ing Company, Inc, and Klassen & Hodgson), 81 NLRB 802, enfd. 184 F. 2d 60 (C. A.
10), cert. denied 341 U. S. 947.
19I am aware that two courts of appeal have not accepted this doctrine. Campbell
Coal Co., 110 NLRB 2192, enforcement denied 229 F. 2d 514 (C. A., D. C.), Board's
petition for cert. denied 351 U. S. 972; N. L. R. B. v. General Drivers, Warehousemen and
Helpers Local 968, et al., 225 F. 2d 205 (C. A. 5), Board's petition for cert. denied 350
U. S. 914. Nevertheless, as a Trial Examiner I am bound by the Board's views. The
Prudential Insurance Company of America, 119 NLRB 768. ,
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. We turn next to the notice posted by Respondent Union on the employee bulletin
boards of common carriers that handle Cooper 's freight , all of whose employees
are union members. The notice as heretofore found advised such employees that,
Cooper was "unfair," that Respondent Union was on strike against Cooper, and
that its contract provided that an employee could not be discharged for refusing
to handle unfair goods. The findings hereinabove made reveal that "hot cargo"
action followed the posting of the notice.
In Genuine Parts Company; 119 NLRB 399 , where union officials within the
confines of a union meeting advised its members ( who are employees of various.
motor carriers ) of their contract rights, following which there was widespread "hot
cargo" action ," the Board held such conduct on the part of the Union and its
agents induced and encouraged the employees of the carriers to, engage in a con-
certed refusal to handle the primary employer 's freight , thus causing the carriers,
to cease doing business with the primary employer . The Board also stated "that
the persuasion and influence found to exist may have been but an incident of a
`good -faith ' attempt by union officials to perform an intraunion duty to `advise'
the members , and that it occurred within the confines of a union meeting, calls
for no difference - in evaluation of the officials' conduct . The statute grants no
exemptions to unlawful conduct because committed in the confines of a union
meeting or because it occurred as an incident to, or in explanation of, union
regulations or policies." Since the notice in the instant proceeding was drafted and
posted by the Respondent Union 's officials to advise its membership of their rights
under the existing contracts and "in explanation of, union regulations or policies"
I am constrained to find on the basis of Genuine Parts, supra, that it constituted
inducement and encouragement of the employees of Rocket , Santa Fe, Lee Way,
and other common carriers to engage in a concerted refusal to handle Cooper's
freight . See also Elliott v . Local No. 568, International Brotherhood of Teamsters,
etc., 34 LRRM 2073 (D. C., W. La.).
In International Brotherhood of Teamsters, Chauffeurs , Warehousemen & Helpers
of America, General Drivers and Helpers, Local No. 554, AFL-CIO (Clark Bros.
Transfer Company), 116 NLRB 1891 , the Union , pursuant to an agreement settling
unfair labor practice charges against it, posted a notice at the docks of secondary
carriers doing business with Clark , reciting in statutory language that it would not
engage in conduct violative of Section 8 (b) (4) (A) and (B ) of the Act. Shortly
after the notices were posted , employees of the carriers, who were union members,
called the business agent to inquire what the notice meant and whether they should
handle Clark's freight . The business agents answered all such inquiries by stating
that they could not discuss the matter , that the employees should read the posted
notice. The Trial Examiner , affirmed by the Board , held that the business agents
were required to do more than merely inform the employees that they could not
discuss it or to read the notices, and that such conduct constituted inducement and
encouragement within the meaning of Section 8 (b) (4) of the Act.12 See also
Seafarers' International Union of North America , AFL, et al . (Hammermill Paper
Company), 100 NLRB 1176.
With respect to the Respondent Union 's contention that employees of carriers
continued to handle Cooper 's freight after the notice was posted , the evidence
reveals that there were outright refusals to handle Cooper's freight by dock
employees of Rocket , Santa Fe, and Lee Way and partial refusals by the employees
of'B & B, K & H, and Viking, in that they did not either pick it up or deliver it
to the Cooper yard. Be that as it may, the success or failure of the inducement
is immaterial , "it is sufficient if they induce or encourage concerted conduct by the
employees of a neutral employer to engage in such a strike, although they may
fail in their efforts." N. L. R. B . v. Denver Building and Construction Trades
Council, 193 F. 2d 421 (C. A. 10).
n The Board found as a fact that the meeting was called and conducted for the pur-
pose of considering the taking by those members employed by the carriers , of "hot cargo"
action ; and that such meeting produced an agreement ( in the form of a resolution) by
the members present to refrain from handling Rayloc goods . See the Board's Decision and
Order.
' It will be recalled that in the district court injunction hearing, Boyd testified that
he received many telephone inquiries from employees of carriers regarding the meaning
of Respondent Union 's notice. His answer to such inquiries was that the notice spoke
for itself and it meant what it said.
TULSA GENERAL^DRIVERS 333-
Little discussion is necessary regarding the Respondent Union's contention that
the "hot cargo clause" in its labor contracts with common carriers handling
Cooper's freight is a complete defense to any violations of Section 8 (b) (4) (A)
and (B) of the Act; suffice it to say that, although the Board held in Conway's
Express, 87 NLRB 972, that such a contract provision is a defense to conduct which,
but for such provision, would plainly violate the Act, its view as expressed in Sand
Door and Plywood Co., 113 NLRB 1210, enfd. 241 F. 2d 147 (C. A. 9), affd. 357
U. S. 93; General Millwork Corp., 113 NLRB 1084, enfd. 242 F. 2d 932 (C. A. 6);
American Iron and Machine Works,13 115 NLRB 800, enfd. in part and denied in
part 247 F. 2d 71 (C. A., D. C.), affirmed in part and reversed in part 357 U. S.
93; and Crowley's Milk Co., 116 NLRB 1408, enforcement denied 245 F. 2d 817
(C. A. 2) is:
The employer, but not the union , may instruct his employees to cease
handling goods sought to be boycotted. Until the employer instructs his em-
ployees 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). .. .
We hold that, regardless 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. [113 NLRB at 1217.1
In fact, in Genuine Parts, supra, which involved common carriers for hire as
does this case,, two members of the majority, relying upon a common carrier's
obligation to serve the public without discrimination, held invalid a "hot cargo"
contract. A third member held that "hot cargo" contracts are illegal because they
are in derogation of the public policy expressed in the Act.
On the basis of the foregoing findings of fact, I conclude that Respondent" Union
violated Section 8 (b) (4) (A) and (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Union, set forth in section III, above, occurring in
connection with the operations of the Employer, set forth 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 commerce and the
free flow of commerce.
Upon the basis of the above findings 'of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Cooper Supply Company is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Tulsa General Drivers, Warehousemen and Helpers, Local No. 523, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2 (5) of the Act.
3. By inducing and encouraging employees of Rocket, Santa Fe, Lee Way, and
other common carriers to engage in a strike or a concerted refusal in the course
of their employment to handle, transport, or process freight destined to or from
Cooper Supply Company with an object thereof being the forcing or requiring of
said common carriers to cease handling , transporting , or otherwise doing business
with Cooper and further with the object of forcing Cooper to recognize or bargain
with Respondent Union as the collective-bargaining representative of its employees,
although Respondent Union had not been certified as such representative in accord-
ance with the provisions of Section 9 of the Act, Respondent Union has engaged
in unfair labor practices within the meaning of'Section 8 (b) (4) (A) and (B)
of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of the Act.
[Recommendations omitted from publication.]
"On March 11 and 12, the Supreme Court heard argument in Sand Door and Ply-
wood Co. and American Iron and Machine Works.