Albert Evans, Etc.

National Labor Relations Board - Board Decisions

Nov 4, 1954

110 N.L.R.B. 748 (N.L.R.B. 1954)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officers, office clerks and stenographers, shop foremen, testers, watch-
men and operators, guards, and all supervisors as defined in the act .2
[Text of Direction of Election omitted from publication.]
2 The parties agree as to the unit composition except for the shipping and receiving
clerk, the testers, the leadmen, and a watchman and operator The Petitioner would ex-
clude them, but the Employer takes no position as to these employees. The shipping and
rceeving clerk is a salaried employee who receives, stores, issues, and ships materials.
Most of his time is spent at manual labor. As he has no supervisory authority, we have
included him. American Lawn Mower Co., 108 NLRB 1589 The testers, who are metal-
lurgists with college degrees, perform their duties in the laboratory under supervision of
the general manager and are paid on a salary basis We find that the testers are technical
employees with interests, duties, and conditions of employment which differ from other
employees in the unit. Accordingly, we have excluded them Copperweld Steel Company,
102 NLRB 1229; East Texas Steel Castings Company, Inc, 95 NLRB 1135 The three
hourly paid leadmen are engaged in manual labor at all times, often with the assistance
of other laborers. They have no authority to hire, discharge, or effectively recommend
such action. They do inform and show others how work is to be done. In so doing they
exercise routine judgment. Accordingly, we find that they do not responsibly direct,
and therefore we have included them. Gerber Plastic Company, 108 NLRB 403 , et seq.
The watchman and operator punches six time clocks hourly. This duty consumes ap-
proximately 1 hour during an 8-hour shift, the remainder of which is devoted to operat-
ing an annealing furnace and other nonprotection duties Also, he would engage in pro-
tection activities if the need arose. As part of his duties consist of plant protection, we
find that he is a guard and therefore we have excluded him. TValterboro Manufacturing
Corpos ation, 106 NLRB 1383.
ALBERT EVANS , TRUSTEE OF LOCAL No. 391 , INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF
AMERICA , AFL, AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , AFL, and
THURSTON MOTOR LINES, INC.
DRIVERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS LOCAL UNION
No. 71, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA , AFL, AND ITS AGENT,
H. S. LITTLE and THURSTON MOTOR LINES, INC. Cases Nos. 11-CC-5
and 11-CC-6. November 4 ,1954
Decision and Order
On July 14, 1954, Trial Examiner Robert L. Piper issued his Inter-
mediate Report in the above-entitled proceeding, finding that Locals
391 and 71 had engaged in and were engaging in certain unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the Act,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner further found that Re-
spondents Little and International had not engaged in any of the
alleged unfair labor practices and recommended dismissal of the com-
plaint as to them. Thereafter, Locals 391 and 71 filed exceptions to
110 NLRB No. 122.
ALBERT EVANS, ETC. 749
the Intermediate Report and a brief, and the General Counsel filed
-exceptions.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the modifications noted below :
1. The Trial Examiner found that the International had not vio-
lated Section 8 (b) (4) (A). The General Counsel excepts. We note
that the amended complaint alleged that Evans at all material times
was the trustee of Local 391 by virtue of an appointment by the In-
ternational in accordance with its constitution, and had full and com-
plete control of Local 391. The amended answer admitted this al-
legation. As we agree with the Trial Examiner that Local 391 vio-
lated Section 8 (b) (4) (A), we further find that the International,
by virtue of its trusteeship of Local 391 at such times, also violated
Section 8 (b) (4) (A) of the Act.'
2. The Trial Examiner recommended that the Respondents cease
and desist from inducing strike action by the employees of any em-
ployer other than Thurston, where an object thereof is to force any
employer to cease doing business with Thurston "or any other per-
son." In accordance with our customary practice, we shall omit the
quoted phrase.2
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, its Locals 391 and 71, and their officers, representa-
tives, and agents, shall :
1. Cease and desist from inducing or encouraging the employees
of any employer other than Thurston Motor Lines, Inc., to engage in
a strike or concerted refusal in the course of their employment to per-
form services for their employer, where an object thereof is to force
or require any employer or person to cease doing business with Thur-
ston Motor Lines, Inc.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
3 Local No 600, Truck Drivers and Helpers , Gasoline & Oilers, etc. ( Osceola Foods, Inc.),
107 NLRB 161.
'international Brotherhood, etc. (Jay-K Independent Lumber Corp. ), 108 NLRB 1323;
Brewery and Beverage Drivers, etc . ( Washington Coca Cola Bottling Works , Inc.), 107
NLRB 299.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at their respective business offices in Charlotte and
Greensboro, North Carolina, copies of the notice attached to the In-
termediate Report marked "Appendix A."' Copies of said notice,
to be furnished by the Regional Director for the Eleventh Region,
after being duly signed by official representatives of the Respondents,
shall be posted by the Respondents immediately upon the receipt there-
of, and maintained by them for a period of sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Eleventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint , insofar as it alleges
that H. S. Little violated Section 8 (b) (4) (A) of the Act, be and
it hereby is dismissed.
3 Such notice shall be amended , however, by substituting the words "A Decision and
Order" for the words "The Recommendations of a Trial Examiner," by deleting the phrase
"or any other person" in the last paragraph before the signatures , and by adding the
signature of the International
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 a United States Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Charges having been duly filed and served, a consolidated amended complaint
and notice of hearing thereon having been duly issued and served by the General
Counsel of the National Labor Relations Board , and an answer having been duly
filed by Albert Evans, Trustee of Local No. 391, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL (hereinafter
called Local 391); International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, AFL; and Drivers, Chauffeurs , Warehousemen and
Helpers Local Union No. 71, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL (hereinafter called Local 71), and
its agent , H. S. Little ( all hereinafter collectively called Respondents ), a hearing
involving allegations of unfair labor practices in violation of Section 8 (b) (4) (A)
of the National Labor Relations Act, 61 Stat. 136, was held in Greensboro, North
Carolina, on June 8, 1954, before the Trial Examiner . In sum, the complaint alleges
and the answer denies violations by Respondents of Section 8 (b) (4) (A) of the Act.
At the hearing all parties were represented by counsel , were afforded full op-
portunity to be heard , to examine and cross-examine witnesses , to introduce evi-
dence pertinent to the issues, to argue orally upon the record , and to file briefs and
proposed findings of fact and conclusions of law. Counsel for Respondents and
for the General Counsel presented oral argument . Briefs have not been received
from any of the parties.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THURSTON MOTOR LINES, INC.
Thurston Motor Lines , Inc. (hereinafter called Thurston ), the Charging Party
herein , is a North Carolina corporation engaged in hauling freight by motor carrier
through the States of North Carolina and Virginia under certificates issued
ALBERT EVANS, ETC. 751
by the Interstate Commerce Commission. Thurston has freight terminals in Char-
lotte and Greensboro, North Carolina. During the year preceding the issuance of
the complaint, Thurston received revenue amounting to approximately $500,000
from such operations. In the course of such operations, a substantial portion of
the freight carried by Thurston was handled by interchange with other interstate
motor carriers. Respondents admit, and I find, that Thurston is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 391, Local 71, and International Brotherhood of Teamsters are labor or-
ganizations within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
All of the facts in this case were stipulated by the parties and with the exception
of one incident are substantially undisputed. At the opening of the hearing the
parties entered into a written stipulation of facts which was received in evidence. In
addition thereto, the parties made certain stipulations of fact upon the record, and
stipulated the receipt in evidence of the transcript of the court proceedings held in
the Federal district court in connection with the issuance of an injunction by said
court involving the same parties and incidents. The parties stipulated that the testi-
mony of the witnesses in the injunction hearing, if such witnesses were called and
testified in the instant hearing, would be the same.
The amended complaint alleges and the amended answer admits that since on or
about March 26, 1954, Local 71 has been engaged in a labor dispute with Thurston
in respect to its Charlotte operations, and since on or about March 30, 1954, Local
391 has been engaged in a labor dispute with Thurston at Greensboro, North Caro-
lina. It is undisputed in the record that there is primary picketing by Local 391 at
Thurston's Greensboro terminal and by Local 71 at Thurston's Charlotte terminal,
and it is not contended that such picketing is violative of Section 8 (b) (4) (A) of
the Act.
However, in addition to this primary picketing, the parties stipulated certain other
picketing, approved and authorized by Locals 71 and 391, at or near the premises
of other employers. Thurston does business with a group of companies described
as "interlining" carriers. These companies are also interstate carriers, and either
accept from or deliver to Thurston freight for continuation in interstate transport.
In addition, Thurston does pickup and delivery work for other companies. It was
stipulated that pickets authorized by Locals 391 and 71 followed Thurston's trucks
to the various premises or terminals of the interlining carriers and customers of
Thurston, and while Thurston was attempting to make deliveries or pickups to and
from such carriers and customers, picketed around Thurston's trucks with picket signs
containing legends that the respective local was engaged in a labor dispute with
Thurston. It is undisputed that such picketing was limited to the times and appro-
priate places when Thurston's trucks were present, and that the picket signs clearly
disclosed that the respective local's dispute was with Thurston and not with the em-
ployer at whose premises Thurston's truck was being picketed. It was also stipulated
that Respondents, at approximately one-half of Thurston's customers and interlining
carriers, after following a Thurston truck to such premises, requested a management
official not to deliver to or accept freight from Thurston because Local 71 or Local
391 was on strike against Thurston. The General Counsel makes no contention
that these requests of management officials constituted violations of Section 8 (b)
(4) (A).
In addition to the admitted picketing of Thurston's trucks when they were present
at premises of customers and interlining carriers, the record establishes certain other
actions by and on behalf of Locals 391 and 71 which the General Counsel contends
also constitute violations of Section 8 (b) (4) (A). The parties stipulated that at
all times material H. J. Elmore was vice president and business agent of Local 391,
C. H. Allen was a trustee and business agent of Local 71, and one Loftus was a
shop steward of Local 391. The testimony of various witnesses referred to herein-
after is that of the witnesses who appeared in the district court injunction proceedings.
No witnesses testified before me.
G. E. Lineberry, an employee of Bell Lines, Inc. (hereinafter called Bell) and
a shop steward for Local 391, testified that on or about April 3, 1954, Elmore came
to Bell's premises and told Lineberry that Local 391 was on strike at Thurston and
that Bell's employees should not handle Thurston's freight while pickets of Local 391
were present picketing the truck. Lineberry further said that Elmore asked him to
tell the employees not to handle Thurston's freight while the pickets were present
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that he did so. Elmore told Lineberry that under the provisions of the con-
tract between Local 391 and Bell, which provisions will be referred to hereinafter,
Bell's employees were required to honor such a picket line. Lineberry was of the
same opinion. Lineberry stated that Bell did not object to the employees honoring
the picket line under the provisions of the contract. Actually, as far as the Bell
incident is concerned, that inducement and encouragement of Bell's employees did
not exceed in scope the inducement and encouragement of them by the picketing
itself, in effect hinges upon whether or not such picketing was in violation of Section
8 (b) (4) (A).
The record also reveals that while the pickets of Local 391 were picketing one
of Thurston's trucks at the premises of P. H. Hanes Knitting Company (hereinafter
called Hanes), Loftus, the shop steward of Local 391, told one of the drivers of
another employer, McLean Trucking Company, that if he crossed Local 391's picket
line at Hanes he would be in trouble with Local 391 and might lose his job. In
other words, Local 391 sought to prevent an employee of a third employer from
doing business with or making a delivery to the secondary employer while the picket
line was present at the secondary employer's premises picketing a Thurston truck.
George Brown, a driver for the Wicker Company, another motor carrier, testified
that he came to Western Carloading Company (hereinafter called Western), in order
to make a delivery. The pickets from Local 391 were present picketing one of
Thurston's trucks and asked Brown not to cross their picket line and do business
with Western. This is another instance where the Locals sought to persuade employees
of third employers not to cross their picket line and do business with a secondary
employer, with neither of whom the Locals had any dispute. Thomas Goad, a driver
for Bottoms-Fisk Company, another motor carrier, testified to the same effect,
that when he went to Western to make a delivery, pickets from Local 391 were
present picketing a Thurston truck and asked him not to cross the line and do business
with Western.
The foregoing incidents involving Bell and employees of tertiary employers were
not denied and stand undisputed in the record. The general picketing of Thurston's
trucks at the premises of numerous secondary employers was stipulated. The only
incident concerning which there is any dispute or conflict in the testimony occurred
at the premises of the Mason and Dixon Lines, Inc. (hereinafter called Mason-
Dixon), one of the interstate motor carriers with which Thurston interlined freight.
John H. Brooks, warehouse supervisor of Mason-Dixon in charge of 19 employees
including the dock freight handlers, testified that early in April 1954, C. H. Allen
came to the terminal of Mason-Dixon and advised Brooks that Local 71 was picketing
Thurston because of a strike there, and that Brooks' men had stopped working at
the instructions of Allen because a Thurston truck was attempting to make a
delivery at Mason-Dixon and was being picketed by Local 71. The freight handlers
of Mason-Dixon belong to Local 71. Brooks told Allen that Mason-Dixon would
not receive Thurston's freight. Allen thereupon left the office and the men resumed
work. Brooks said that he told Thurston's driver that Brooks could not accept
the freight on account of the strike. Brooks testified that that was his understanding
of the contract that Mason-Dixon had with Local 71. As in the case of the contract
with Bell, the provisions of the contract with Mason-Dixon will be discussed here-
inafter in connection with the defense of Locals 391 and 71. Brooks said that his
employees stopped working while Allen was there and the Thurston truck was being
picketed.
Allen admitted talking to Brooks upon the occasion when the Thurston truck
was at the Mason-Dixon premises. Allen said that he told the employees of Mason-
Dixon the picket line was there for the Thurston truck and that he asked Brooks
if Mason-Dixon was going to accept Thurston's freight. After Brooks told him
that Mason-Dixon would not, he left. Allen said that he told the Mason-Dixon
men what to do but did not testify what he told them. He said that part of the
men stopped working and part of them did not. Allen denied that he told the
men at any time to stop work. He further denied that he told Brooks what he
had told the men. In substance, the only conflict between Brooks' and Allen's
testimony is whether Allen advised Brooks that Allen had told the men to stop
working while the truck was there. A consideration of all of the testimony of
both leads me to the conclusion that Brooks' testimony is correct, and that Allen
told the men to stop working while the Thurston truck was at the premises and being
picketed by Local 71. Allen admitted that in response to the Mason-Dixon em-
ployees' inquiry concerning what they should do about the situation, he advised them
what to do. He did not testify what the advice was, but admitted that a substantial
part of the men stopped working. Nobody other than Allen talked to the men prior
to this incident. The fact that the men stopped performing their work corroborates
ALBERT EVANS, ETC. 753
Brooks' statement that Allen said that he had told the men to stop working because
the Thurston truck was there. Accordingly I find that on this occasion, Allen
advised the employees of Mason-Dixon to stop working while the Thurston truck
was present
S. C. Jones, president of Local 391, admitted the picketing of Thurston's trucks
at the premises of numerous secondary employers. He stated that Local 391 intended
to appeal to anyone who read the picket sign which the pickets carried. He admitted
that Local 391 asked drivers of other companies not to cross its picket lines at the
premises of secondary employers and that Local 391 hoped that employees of various
,other carriers would honor its picket lines. He stated that Local 391 also hoped
that the picket line would be honored by the employees of the secondary employer
and that they would not work while the Thurston truck was present and being
picketed. While Jones testified that the picketing of Thurston's trucks was limited
to the times and places when they were present at secondary employers and was
confined to the situs of the truck, and while the picket signs indicated clearly that
,the Locals' dispute was with Thurston and not the secondary employers, Jones
admitted that one of the purposes of the picketing was to attempt to induce and
,encourage employees of third employers not to cross the picket line and do business
with secondary employers, and employees of secondary employers to cease working
and honor the picket line.
The foregoing constitutes the facts in this case. The General Counsel contends
that the picketing of Thurston's trucks at the premises of secondary employers, which
picketing was admitted and stipulated, in itself constitutes a violation of Section 8
(b) (4) (A) irrespective of the other facts for the reasons expressed by the Board
in the Washington Coca Cola and Richfield Oil cases.' In addition, the General
Counsel contends, even assuming that the picketing of the Thurston trucks at the
premises of secondary employers was not in violation of Section 8 (b)) (4) (A),
that the additional incidents set forth above, namely, the inducement and encourage-
ment of employees of third employers not to cross the picket line and do business
with secondary employers, and the inducement and encouragement of employees of
secondary employers to cease working entirely and engage in a strike as distinguished
from refusing to handle Thurston's goods and accept deliveries from Thurston, went
far beyond the picketing of Thurston's trucks at the situs of secondary employers
and establishes beyond dispute a clear violation within the meaning of Section
8 (b) (4) (A).
The defense of Respondents is threefold. With respect to the picketing of Thurs-
On's trucks at the premises of secondary employers generally, Respondents contend
that this was the primary situs of the dispute and hence was not violative of Section
8 (b) (4) (A), in reliance upon the Schultz, Moore Dry Dock and Howland Dry
Goods cases?
With respect to the incidents at Hanes and Western, when the pickets asked the
,employees of third persons not to cross the picket lines and do business with the
secondary employers, Respondents' defense is that the pickets were appealing to such
.employees for individual as distinguished from concerted activity and therefore such
action was not violative of Section 8 (b) (4) (A) because of the holding of the
,Supreme Court in the International Rice Milling case.3 With respect to the incidents
at Mason-Dixon and Bell, and the incident involving the McLean driver at Hanes,
Respondents contend that the existing contracts between the Locals and those com-
panies permitted this action, because of the so-called "hot cargo" clause doctrine
of the Board expressed in the Conway's Express case.4
Respondents' first contention is met squarely by the holding of the Board in the
Washington Coca Cola case, supra. Respondents contend that the picketing of the
trucks of Thurston was at the primary situs of the dispute, and because it was limited
,to the times and places when the trucks were present and the picket signs clearly
revealed that the dispute was with the primary employer only, such picketing met
the tests laid down in the Schultz and Moore Dry Dock cases, supra, and approved
by the Court of Appeals for the Second Circuit in the Howland Dry Goods case,
supra. The four tests set forth by the Board in the Moore Dry Dock case were that
'Washington Coca Cola Bottling Works, Inc, 107 NLRB 299; Richfield Oil Corpora-
taon, 95 NLRB 1191
a Schultz Refrigerated Service, Inc, 87 NLRB 502; Moore Dry Dock Company, 92 NLRB
547; N. L. R. B. v. Service Trade Chauffeurs, Salesmen & Helpers Local 145, etc. (How-
,land Dry Goods), 191 F 2d 65 (C. A. 2).
8 International Race Milling Co ., Inc., et al. v . N. L. R. B., 341 U. S. 665
4 Conway's Express, 87 NLRB 972.
33 8207-5 5-vo1 110-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the picketing at the premises of the secondary employer is permissible only if: (1) It
is strictly limited to the times when the situs of the dispute is located at the premises
of the secondary employer; (2) at the times of the picketing, the primary employer
is engaged in his normal business at such situs; (3) it is limited to places reasonably
close to the situs of the dispute, i. e., the trucks; and (4) it clearly discloses that
the dispute is with the primary employer only.
All of these tests are applicable only in situations where it has been found that
the situs of the dispute is at the premises of the secondary employer. As pointed
out by the Board in the Washington Coca Cola case, such is not the case when the
employer has a primary place of business in the locality which can be picketed by
the labor organization with which the employer has a dispute. In the Coca Cola
case, the company had a primary situs which could be and was in fact being picketed
by the union. Under such circumstances, the Board decided that the doctrine set
forth in the Schultz and Moore Dry Dock cases was not applicable, because in those
cases the employer had no permanent establishment in the area or vicinity of the
dispute which could be picketed, and the primary situs of the dispute was that of
the truck and the ship, respectively. Here, as in the Coca Cola, case, Thurston had
a permanent place of business in both Greensboro and Charlotte. Both of these
primary sites were picketed by the Locals from the beginning of their disputes with
Thurston.
For the reasons stated by the Board in the Coca Cola case, the picketing of the
Locals at the situs of the secondary employer was not primary, but was an attempt
to induce and encourage the employees of various secondary employers to engage in
a strike or a concerted refusal in the course of their employment to handle or work
on Thurston's goods or perform services involving Thurston's goods, an object thereof
being to require such secondary employers to cease doing business with Thurston.
In addition, even assuming that such picketing was primary and that the doctrine of
the Moore Dry Dock case was applicable, Respondents would still be in violation
of the fourth criterion set forth in that case, namely, that the picketing must clearly
disclose that the dispute is with the primary employer only. As pointed out by the
Board in the Richfield Oil case, supra, after the Moore Dry Dock case, the union
there did not meet the fourth test, because, although its picket signs were limited to
the primary employer, the pickets orally induced and encouraged employees of third
employers not to cross the picket line and make deliveries to the secondary employer.
This is exactly what occurred in this case and therefore, as found by the Board in
the Richfield Oil case, Respondents failed to comply with the tests set forth in the
Moore Dry Dock case
Respondents' second defense, that the urging of employees of third employers not
to cross the picket line at the premises of secondary employers was not violative of
Section 8 (b) (4) (A) because it was an attempt to induce individual as distinguished
from concerted activity, within the finding of the Supreme Court in the International
Rice Milling case, supra, is without merit. In that case the Supreme Court was con-
sidering primary picketing at the premises of the employer with whom the union was
engaged in a dispute. In that context, the Court said that the inducement and
encouragement of employees not to cross the picket line was an attempt to induce
individual as distinguished from concerted action, and that since the right to strike
was guaranteed by the Act, such striking and picketing at the premises of a primary
employer could not be found to be violative of Section 8 (b) (4) (A). On the
other hand, the Supreme Court made clear in its companion decisions in the Denver
Building Trades, IBEW and Carpenters cases 5 that appealing to employees of sec-
ondary employers not to work or perform services for their employer was clearly
violative of Section 8 (b) (4) (A).
This second defense of Respondents, as well as their first defense that the picketing
of Thurston's trucks was primary and met the criteria set forth in the Moore Dry
Dock case, can have no application to the incident at Mason-Dixon when its em-
ployees were asked not to work at all, as distinguished from refusing to handle
Thurston's goods. Clearly, this was both inducement and encouragement to engage
in a concerted refusal to work or perform services, and an extension of the dispute to
the work of the secondary employer. As pointed out in the Richfield Oil case, the
criterion that the picketing clearly disclose that the dispute is with the primary em-
ployer only is not met when the pickets attempt to interfere with the business of the
secondary employer in general as distinguished from its business with the primary
e N L R B v. Dever Bldg & Construction Trades Council , et isl., 341 U. S 675 ;
lnternational Brotherhood of Electrical Workers, Local 501, et al . v. N L R . B., 341 U. S
694; N. L. R. B. v. Local 74, United Brotherhood of Carpenters and Joiners of America.
AFL, et al., 341 U. S. 707.
ALBERT EVANS, ETC. 755
employer. It is of course true, if the picketing were primary and permissible, it
would necessarily have an effect upon the secondary employer's business with the
primary employer. However, to expand it to interfere with the secondary employer's
business generally, as distinguished with its business with the primary employer, is
clearly to remove it from the criteria in the Moore Dry Dock case and expand the
dispute to affect the business of a secondary employer. The same is true of the in-
ducement and encouragement of employees of third persons not to cross the picket
line and do business with the secondary employer. It also constitutes an extension
of the dispute beyond the activities of the primary employer and interference with
the business of the secondary employer and third persons.
Respondent's third defense is that because of certain contracts Locals 391 and 71
had with Mason-Dixon, Bell, and McLean, the incidents which occurred at Mason-
Dixon and Bell, when the employees were asked not to work at all, and not to handle
Thurston's freight while the pickets were present, respectively, and at Hanes when
a McLean driver was asked not to cross the picket line and do business with Hanes,
were not violative of Section 8 (b) (4) (A) because of the Board's decision in the
Conway's Express case, supra.
It was stipulated that Mason-Dixon and Bell had contracts with Local 71 which
provided, inter alia:
The company recognizes the right of the union's members to refuse to cross a
picket line where a legal strike is in progress. No such refusal shall be a breach
of this agreement, nor shall the company require any employee to perform
the above act.
The contract between Locals 71 and 391 and McLean provided, inter aka:
The membership of the union shall have the right at all times to refuse to make
pickups or deliveries at points where there is a strike authorized by this local
union, Piedmont Conference of Teamsters, or by the International Brotherhood
of Teamsters.
Neither of the contracts is applicable to the situations present in this case and hence
can constitute no defense to Respondents. In the Mason-Dixon incident, Local 71
induced and encouraged the employees of Mason-Dixon to stop working completely
as long as the Thurston truck was present. There was no existing strike, legal or
otherwise, at Mason-Dixon. There was a picket line around Thurston's truck, limited
to the Local's dispute with Thurston and to the truck. Causing the employees of
Mason-Dixon to cease working entirely could not fall within the provision of the
contract permitting them to refuse to cross a picket line where a legal strike is in
progress, even assuming the validity of such a provision and the picketing. Local 71
caused the employees to cease working entirely, as distinguished from refusing to
cross the picket line or perform services in connection with the business of the pri-
mary employer. Clearly, it cannot be Respondents' contention that there was a
strike in progress at Mason-Dixon. This would constitute an admission of a viola-
tion of Section 8 (b) (4) (A), since Respondents had no dispute with Mason-Dixon.
It is Respondents' position that the primary dispute was with Thurston and that the
picketing was primary because the truck was present.
In the Bell incident, the facts establish that the employees were induced and en-
couraged only to refuse to cross the picket line around the Thurston truck. Even
under such circumstances the contract constitutes no defense to Respondents for the
following reasons. It has been found that the picketing of the truck at the premises
of the secondary employer was violative of Section 8 (b) (4) (A), because it was
not the situs of the primary dispute and because there was a primary situs at which
picketing could be and was carried on. Accordingly, there was not a legal strike in
progress at the situs of the truck when it was present at Mason-Dixon and hence the
provision of the contract is inapplicable.
Substantially the same applies to the contract the Locals had with McLean, which
was advanced as a defense to persuading McLean's driver not to cross the picket line
and do business with Hanes. The provisions of that contract authorized union mem-
bers to refuse to make pickups or deliveries at points where there was a strike author-
ized by the Locals. As at Mason-Dixon and Bell, there was no strike at Hanes,
but rather there was picketing of Thurston in pursuance of a strike against it. For
this reason the provisions of the contract are inapplicable as a defense.
As was pointed out by the Board in the Jay-K Lumber case,6 similar contractual
provisions were not applicable absent a strike against the secondary employer, and
6 Jay-K Independent Lumber Corp., 108 NLRB 1323.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assuming , without passing on the validity of the socalled "hot cargo" clause upheld
in the Conway's Express case, could not protect the inducement and encouragement
of employees of secondary and tertiary employers not to perform services for their
employers.
In addition, as found above, the picketing at Hanes and all of the secondary em-
ployers was illegal because of the existence of an appropriate primary situs where
the picketing could be and was conducted, and hence a contractual provision per-
mitting the honoring of a picket line where an authorized strike is taking place can
be no defense when that strike is in itself violative of the Act. It is clear that the
intention of the provisions of the contracts between the Locals and the respective
companies was to permit the members of the Locals to refuse to cross picket lines
and do business with an employer who was engaged in a primary dispute with a
labor organization, and not to permit members of the Locals to honor a picket
line not aimed at the secondary employer where the picketing was taking place, and
thereby refuse to do business with such employer with whom the striking labor
organization had no dispute.
There is no evidence in the record that Respondents H. S. Little and International
Brotherhood of Teamsters engaged in, authorized, or in any other manner partici-
pated in the foregoing unfair labor practices, and accordingly it will be recommended
that the complaint be dismissed as to them.
Summarizing, a preponderance of credible evidence in the entire record convinces
me, and I find, that Locals 391 and 71 induced and encouraged the employees of
secondary employers to engage in a strike or concerted refusal in the course of their
employment to handle or transport goods, articles, commodities, materials, or per-
form services for their employers, an object thereof being to force and require such
secondary employers to cease doing business with Thurston; and induced and en-
couraged employees of tertiary employers to engage in a strike or concerted refusal
in the course of their employment to handle or transport goods, articles, commodities,
materials, or perform services for their employers, an object thereof being to force
and require their employers to cease doing business with secondary employers, and
in turn forcing or requiring such secondary employers to cease doing business with
Thurston, all in violation of Section 8 (b) (4) (A) of the Act.
IV. THE REMEDY
Having found that Locals 391 and 71 have engaged in certain unfair labor prac-
tices, I shall recommend that they cease and desist therefrom and take certain affirm-
ative 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. The activities of Locals 391 and 71 set forth in section III, above, occurring in
connection with the operations of Thurston 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.
2. Local 391, Local 71, and International Brotherhood of Teamsters are labor
organizations within the meaning of Section 2 (5) of the Act.
3. By inducing and encouraging employees of secondary employers to engage in a
concerted refusal to perform services for their employers, with an object of requiring
such employers to cease doing business with Thurston, and by inducing and encourag-
ing employees of tertiary employers to engage in a concerted refusal to perform serv-
ices for their employers with an object of requiring such employers to cease doing
business with secondary employers, and in turn requiring such secondary employers
to cease doing business with Thurston, Locals 391 and 71 have engaged in unfair
labor practices within the meaning of Section 8 (b) (4) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
5. Respondents H. S. Little and International Brotherhood of Teamsters have not
engaged in unfair labor practices in violation of Section 8 (b) (4) (A) of the Act,
as alleged in the complaint.
[Recommendations omitted from publication.]
THE JEFFERSON COMPANY, INC. 757
Appendix A
NOTICE TO ALL MEMBERS OF LOCAL No. 391 AND LOCAL No. 71, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby give notice that:
WE WILL NOT induce or encourage the employees of any employer other than
Thurston Motor Lines, Inc., to engage in a strike or concerted refusal in the
course of their employment to perform any services for their employers, where
an object thereof is to force or require any employer or person to cease doing
business with Thurston Motor Lines, Inc. or any other person.
LOCAL No. 391, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA, AFL,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative) (Title)
LOCAL UNION No. 71, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL,
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.
THE JEFFERSON COMPANY, INC. and INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 349, AFL. Case No. 10-CA-
1469. November 4,1954
Decision and Order
On August 21, 1953, the Board issued its proposed findings of fact,
proposed conclusions of law, and proposed order in the above-entitled
proceeding, a copy of which is attached hereto. Thereafter, the Re-
spondent filed exceptions thereto and a supporting brief. The Board
has considered the proposed findings of fact, proposed conclusions of
law, and proposed order, the exceptions and brief filed by the Respond-
ent, and the entire record in the case, and hereby adopts as its De-
cision and Order herein the said proposed findings of fact, proposed
conclusions of law, and proposed order, with the following additions
and modifications.
1. Respondent does not dispute the commerce facts detailed in the
proposed findings, but excepts to the conclusion that it is engaged
in commerce within the meaning of the Act, and that it will effectuate
the policies of the Act to assert jurisdiction. In this respect, Respond-
ent challenges not only the jurisdiction of the Board but also the
wisdom of asserting jurisdiction on the basis of indirect inflow. Simi-
110 NLRB No. 113.