Brewery and Beer Distributor Drivers, Etc.

National Labor Relations Board - Board Decisions

Nov 9, 1959

125 N.L.R.B. 12 (N.L.R.B. 1959)

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brewery and Beer Distributor Drivers, Helpers and Platform
Men, Local 830, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Independ-
ent and Delaware Valley Beer Distributors Association. Case
No. 4-CC-98. November 9, 1959
DECISION AND ORDER
On August 22, 1958, Trial Examiner Louis Plost 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, the
General Counsel, and the Charging Party filed exceptions to the In-
termediate Report, and supporting briefs and memoranda.
On October 20, 1958, on the basis of its decision in Ra-Rich Manu-
facturing Corp.,' the Board issued an Order sustaining certain ex-
ceptions made by the Respondent and making available to the
Respondent pretrial written statements of the General Counsel's wit-
nesses. On October 31, 1958, on motion of the Respondent, the Board
issued an Order Reopening Record and Remanding Proceeding for
the purpose of conducting a further hearing. A further hearing was
held on May 20,1959.
On July 27, 1959, Trial Examiner Plost issued his Supplemental
Intermediate Report, a copy of which is attached hereto, in which he
found no reason to modify or change the findings, conclusions, and
recommendations in his Intermediate Report. Thereafter, the Re-
spondent filed exceptions to the Supplemental Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
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 Supplemental Intermediate Report, the ex-
ceptions and briefs, and the entire record, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
insofar as they are consistent with the decision herein.
1. The Charging Party, hereinafter called the Association, con-
sists of approximately 27 retail beer distributors in the Philadelphia
area. All but one are members of Respondent local, and the majority
1121 NLRB 700.
125 NLRB No. 6.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 13
are engaged in one- or two-man operations. The Association was
formed by these distributors in March of 1958, following their re-
fusal to sign the collective-bargaining agreement sought by Respond-
ent. Thereafter, in March and April 1958, Respondent engaged in
picketing and other conduct at the premises of certain breweries and
wholesale distributors named in the complaint, with the result that
at least 10 members of the Association were unable to procure beer
from these sources.
The Trial Examiner found that Respondent by the above conduct
violated Section 8(b) (4) (A). We agree with his conclusion that
Section 8 (b) (4) (A) was violated, but in finding the requisite induce-
ment under the statute, rely execlusively upon the following inci-
dents, uncontradicted in the record, whereby Respondent's representa-
tives specifically instructed employees of the wholesale and importing
distributors not to deliver beer to certain of the retail distributors : 2
(a) On March 11, 1958, Martin Miller of Copenhagen Castle Beer
Distributing Company placed an order for beer at Scott and Grauer,
importing distributors. The order taker asked Respondent's steward,
Alex Schroeder, whether it was "all right" to load Miller's truck,
whereupon Schroeder replied Miller could get no beer because he
had not signed Respondent's contract.
(b) On March 18, Miller attempted to get beer at Esslinger, Inc.
Frank Feeney, Esslinger 's shipper, stated he could not load Miller's
truck while "those fellows are standing in front of the brewery,"
referring to a nearby line of men which included Respondent's
steward, Lester Parker. At this point, Parker walked over to Feeney,
pointed at Miller, and in the presence of other platform workers
stated, "This guy doesn't get any beer. He hasn't signed the contract."
(c) On March 19,1958, Frank Barrett, a member of the Association,
drove his truck to Ortlieb Brewing Company to purchase beer.
Barrett had refused to sign Respondent's contract, and Respondent's
steward, John McAneny, told Barrett, "You can't have any beer."
McAn'eny then instructed Ortlieb's platform man, Vince, to unload
Barrett's empty bottles, but not to give him any beer.
(d) The same day, James Lynham, doing business as Jim's Beer
Distributors, tried to place an order at Ortlieb's. The platform man
said, "I am sorry, Jim, I can't wait on you. You will have to see
McAneny." Lynham then approached steward McAneny, who was
2 We do not adopt the Trial Examiner 's finding that members of the Association
were not party to, or bound by, a contract executed in March 1958 , between Local 830
and the Philadelphia Beer Distrillutors Association . This contract allegedly contained
a "hot-cargo " clause. We find it unnecessary to decide whether such a contract existed;
for even assuming its existence , the Supreme Court has held that a union may not law-
fully enforce a "hot- cargo" agreement by conduct which induces or encourages em-
ployees within the meaning of Section 8(b) (4) (D ). Local 1976, United Brotherhood
of Carpenters and Joiners of America, AFL, at al . v. N.L.R . B. (Sand Door d Plywood
Co.), 357 U . S. 93, affg. 241 F. 2d 147 ( C.A. 9). Such inducement and encouragement
is amply evidenced here. '
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing in front of the loading platform. McAneny said Lynham
could get no beer because he had not signed the union contract.
(e) At Esslinger's, also on March 19, Louis DeRosa of DeRosa
Beer Distributor was told by the platform loader, "I can't give you
any beer as long as that man is picketing," referring to Respondent's
steward, Parker, who was walking up and down in front of the
platform. Parker then told a platform worker, "No beer for DeRosa.
Don't load that truck."
(f) A similar incident took place on March 19 at the William Gretz
Brewing Company. Respondent's steward told the loader, "No beer
for DeRosa, he didn't sign a contract."
(g) On March 24, DeRosa attempted to get beer from Antonio
Origlio, an importing distributor. Respondent's steward, Frank
Vadino, told DeRosa "No beer, DeRosa," whereupon one of Origlio's
employees, who had overheard Vadino's remark, told DeRosa to
"get the out of here."
(h) Sinclair Washington, doing business as Sinclair's Beer
Distributor, placed an order on April 3 at Scott and Grauer's.
Grauer instructed Alex Schroeder, an employee and Respondent's
steward, to fill the order.. Schroeder refused, stating in the presence
of employees : "He hasn't signed a contract. He is not a member
of the union. I will not serve him."
On the basis of these incidents, and without passing on the legality
of Respondent's picketing and activities other than those specified
above, we find that Respondent induced and encouraged the em-
ployees of Scott and Grauer, Esslinger, Inc., Ortlieb Brewing Com-
pany, William Gretz Brewing Company, and Antonio Origlio to
refuse to perform services for their employers, with an object of
forcing or requiring said employers to cease doing business with
Copenhagen Castle Beer Distributing Company, Inc., Frank Barrett,
Jim's Beer Distributors, DeRosa Beer Distributor, and Sinclair's
Beer Distributor.'
2. The General Counsel and the Charging Party except to the
Trial Examiner's failure to find that Respondent independently
violated Section 8 (b) (4) (A) by inducing employees to cease work
with an object of forcing and requiring employers and self-employed
3 The Respondent excepts to the Trial Examiner 's refusal to admit evidence that Asso-
ciation members had no permanent places of business at which Respondent could ade-
quately picket . See Brewery and Beverage Drivers and Workers , Local Union No. 67,
et al. (Washington Coca - Cola Bottling Works, Inc.), 107 NLRB 299, enfd. 220 F. 2d 380
(C.A., D.C.). However, even had the Trial Examiner accepted Respondent's offer of
proof, the instances of direct inducement of employees hereinbefore enumerated would
be sufficient to establish the violations of Section 8(b) (4) (A ). See, e . g., Highway
Truck Drivers and Helpers , Local 107 , Teamsters ( Virginia Carolina Freight Lines,
Inc.), 123 NLRB 551; International Union of United Brewery, Fleur, Cereal, ,loft Drink
and Distillery Workers of America, AFL-CIO et at. ( Adolph Coors Company), 121
NLRB 271. Accordingly , we find no prejudicial error in the Trial Examiner ' s ruling.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 15
persons to join the Respondent labor organization .4 We find merit
in this exception.
The record discloses that all members of the Association except one,
Sinclair Washington, were members of Respondent local. Washing-
ton, a new distributor, commenced operations in October 1957, and
shortly thereafter was told by Guy Basal, Respondent's president,
that it was the "general procedure" for all one-man operators to join
the union. In a subsequent conversation, Secretary-Treasurer Louis
Lanni told Washington that in order to get beer he "should belong
to the union." In January 1958, Washington attempted to place an
order for beer at Antonio Origlio's, an importing distributor. He was
asked for his union card by Respondent's steward, Frank Vadino, and
was told to go "sign up" and he "wouldn't have any trouble." There-
after on April 3, as found supra, Respondent unlawfully induced
employees of Scott and Grauer to cease performing services for their
employer, with an object of forcing Scott and Grauer to cease doing
business with Sinclair Washington, i.e., Sinclair's Beer Distributor.
On that occasion, Respondent's steward, Alex Schroeder, expressly
stated he would not serve Washington because he had not signed Re-
spondent's contract, and because he was not a member of Respondent
union. In view of the earlier remarks of Lanni and Basal to Wash-
ington regarding his union membership, and Schroeder's express
statement on April 3, it is clear and we find that one object of Re-
spondent's inducement of employees on April 3 was to require Sin-
clair Washington, a self-employed person, to join Respondent labor
organization. Accordingly, we find this violation of Section 8(b)
(4) (A), as alleged.
THE REMEDY
We find merit in the exceptions of the General Counsel and the
Charging Party to the failure of the Trial Examiner to recommend
that the Respondent cease and desist from engaging in unlawful
secondary conduct, not only against those secondary employers spe-
cifically named, but any other secondary employers. The order re-
quested is the normal remedy provided by the Board upon finding
Section 8 (b) (4) (A) violations,5 and conforms essentially to the lan-
guage of this section of the Act. We shall therefore issue our normal
order as regards other secondary employers.
4 Section 18(b) (4) (A ) provides in part that "It shall be an unfair labor practice for a
labor organization or its agents . to induce or encourage the employees of any employer
to engage in, a strike or a concerted refusal in the course of their employment . . . to
perform any services , where an object thereof is: . . . forcing or requiring any em-
ployer or self -employed person to join any labor or employer organization . . . The
Trial Examiner did not pass on this allegation of the complaint.
s See, e . g., Local No. 980 , International Hod Carriers ', et al . ( The Kroger Company),
119 NLRB 469 ; Local 691 , International Brotherhood of Teamsters , etc. (Morgan
Drive-Away, Inc.), 121 NLRB 1039; Local No. 688, Warehouse and Distribution Work-
ers' Union, etc. (Acme Paper Company, et al. ), 121 NLRB 702.
16 DECISIONS - OF NATIONAL LABOR RELATIONS -BOARD
Respondent excepts to that portion of the recommended order which
enjoins unlawful secondary boycott activity against all members of
the Association, and is not limited to those retail beer distributors who
are the primary employers specifically involved in this proceeding.
Although the specific violations of Section 8 (b) (4) (A) found herein
are limited to incidents involving five individual members of the As-
sociation, we believe the record adequately supports the issuance of a
broad order to afford protection to the other primary retail beer
distributors who are similarly situated and similarly endangered.'
The evidence amply shows the existence of a pervasive purpose and
object of the Respondent to prevent all retail beer distributors in the
Respondent's jurisdictional area from obtaining beer from the various
suppliers, i.e., secondary employers, unless these distributors accept
and sign the contract offered by the Respondent.
Thus, for example, on March 11, 1958, retail distributor Frank Bar-
rett telephoned Guy Basal, Respondent's president, to find out why
he could not get beer. Basal told him, "We are tired of you guys .. .
You are not going to get nothing." Shortly thereafter, Respondent's
steward, Michael O'Kane, told the traffic manager for William Gretz
Brewing Company that "the distributors" were not going to be loaded,
as they had not signed Respondent's contract. On March 19 Steward
McAneny told Distributor Norman Samoiloff that "you guys" did not
sign the contracts so "you can't get beer."
We are of the opinion that the foregoing, and the record as a whole,
constitutes reasonable basis for anticipating that the Respondent, un-
less enjoined, will extend its unlawful secondary boycott activities
to the retail beer distributors generally. Accordingly, we shall order
that the Respondent cease and desist from engaging in unlawful
secondary pressures against the named primary employers, "or any
other employer." 7
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 Brewery and Beer Distributor
Drivers, Helpers and Platform Men, Local 830, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
6 Cf. International Brotherhood of Teamsters, etc., Local No. 554 (Clark Bros. Trans-
fer Co.), 262 F. 2d 456 (C.A., D.C.), remanding for further proceedings 116 NLRB
1891; Local 926, international Union of Operating Engineers, AFL-CIO, et al. (Armco
Drainage & Metal Products, Inc.), 267 F. 2d 418 (C.A. 5), modifying 120 NLRB 188.
7 See, e.g., International Union of United Brewery, Flour, Cereal, Soft Drink and Dis-
tillery Workers of America, AFL-CIO, et al. (Adolph Coors Company) supra; Dallas
General Drivers, at al. (Dallas County Construction Employers' Association, Inc.), 124
NLRB 696.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 17
ica, Independent, its officers, representatives, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Engaging in a strike, or inducing and encouraging the em-
ployees of Scott and Grauer, Esslinger, Inc., Ortlieb Brewing Com-
pany, William Gretz Brewing Company, Antonio Origlio, or any other
employer, to engage in a strike or concerted refusal in the course of
their employment to use, manufacture, process, transport, or other-
wise handle or work on any goods, articles, materials, or commodities,
or to perform any services for their employer, where an object thereof
is to force or require said employers or other persons to cease doing
business with Copenhagen Castle Beer Distributing Company, Inc.,
Frank Barrett, Jim's Beer Distributors, DeRosa Beer Distributor,
Sinclair's Beer Distributor, or any other employer; or to force or re-
quire Sinclair Washington or any other employer or self-employed
person to join Respondent labor organization.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices and meeting halls in Philadelphia,
Pennsylvania, and all other places where notices to its members are
usually posted, copies of the notice attached hereto marked "Appendix
A." 8 Copies of said notice, to be furnished by the Regional Director
for the Fourth Region, shall, after being duly signed by official rep-
resentatives of the Respondent, be posted immediately upon receipt
thereof and maintained for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to their mem-
bers 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) Mail to the Regional Director for the Fourth Region signed
copies of the notice attached hereto marked "Appendix A," for post-
ing at the premises of Scott and Grauer, Esslinger, Inc., Ortlieb Brew-
ing Company, William Gretz Brewing Company, Antonio Origlio,
Copenhagen Castle Beer Distributing Company, Inc., Frank Barrett,
Jim's Beer Distributors, DeRosa Beer Distributor, and Sinclair's
Beer Distributor, should the above named employers be willing to
post such notice.
(c) Notify the Regional Director for the Fourth Region, in writing,
within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith.
$ 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."
1$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL MEMBERS OF BREWERY AND BEER DISTRIBUTOR DRIVERS,
HELPERS AND PLATFORM MEN, LOCAL 830, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, INDEPENDENT
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify you that :
WE WILL NOT engage in a strike or induce or encourage em-
ployees of Scott and Grauer, Esslinger, Inc., Ortlieb Brewing
Company, William Gretz Brewing Company, Antonio Origlio,
or any other employer, to engage in a strike or concerted refusal
in the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles, ma-
terials, or commodities, or to perform any services for their em-
ployer, where an object thereof is to force or require said employ-
ers or other persons, to cease doing business with Copenhagen
Castle Beer Distributing Company, Inc., Frank Barrett, Jim's
Beer Distributors, DeRosa Beer Distributor, Sinclair's Beer Dis-
tributor, or any other employer; or to force or require Sinclair
Washington or any other employer or self-employed person to
join Respondent labor organization.
BREWERY AND BEER DISTRIBUTOR DRIVERS,
HELPERS AND PLATFORM MEN, LOCAL 830,
INTERNATIONAL BROTHERHOOD OF TEAM-
STERS , CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, INDEPENDENT,
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
STATEMENT OF THE CASE .
It having been. charged by the Delaware Valley Beer Distributors Association
(herein called the Association) that the Brewery and Beer Distributor Drivers,
Helpers and Platform Men, Local 830, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Independent (herein called
Respondent or Local 830) had been engaging in and is engaging in- unfair labor
practices affecting commerce, as set forth and defined in the National Labor Relations
Act, as amended, 61 Stat.. 136, hereinafter called the Act 1 the General, Counsel of
the National. Labor Relations. Board. by the Regional-, Director for the- Fourth
1 The charge was filed March 13, 1958. The amended charge was filed March 14,
1958.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC..: 19
Region, issued an amended complaint and notice of hearing dated May 6, 1958, alleg-
ing that the Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8(b)(4)(A) 2 and Section 2(6)• and (7) of the Act.
Copies of the complaint and notice of hearing were duly served on the Respondent
and the Charging Party.
With respect to the unfair labor practices the complaint alleged in substance:
That since on or about March 1, 1958, the Respondent Local 830 has been engaged
in a labor dispute with members of the Association; that since on or about March
10, 1958, the Respondent has picketed, ordered, directed, instructed, and appealed
to the employees of some or all of the following employers: C. Schmidt and Sons,
Inc., Harry F. Ortlieb Brewing Company, Esslinger, Inc., William Gretz Brewing
Company, Scott and Grauer, Antonio Origlio, and Smiler Beverage Company not
to load the trucks of members of the Association, or to deliver beer to members of
the Association; the above named picketed employers being strangers to the dispute
between Local 830 and the Association.
The complaint alleged:
By the acts described above, performed with the object set forth above, and by
each of said acts, the Respondent did induce and encourage and is inducing and
encouraging the employees Of other employers to engage in a strike or a con-
certed refusal in the coursg'bf their employment to process, transport, or other-
wise handle or work on,any goods, articles, or commodities or to perform any
services with the objet of: (a) Forcing or requiring the employer and self-
employed person, members of the Association, to join a labor organization; and
(b) forcing or requiring other employers or persons to cease doing business with
members of the Association, and thereby did engage in and is engaging in un-
fair labor practices within the meaning of Section 8, subsection (b) (4) (A) of
the Act.
The Respondent duly filed an answer: Pursuant to notice a hearing was held
before Louis Plost, the duly designated Trial Examiner, at Philadelphia, Pennsyl-
vania, on June 2 and 5, 1958, inclusive. The General Counsel, the Respondent, and
the Association were represented by counsel, all being hereinafter referred to in the
names of their principals. The parties participated in the hearing, were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence bearing on the issues, to argue orally on the record, and to file briefs, pro-
posed findings of fact, and conclusions of law with the Trial Examiner.
The Respondent moved to consolidate the instant matter with Case No.
4-CA-1690. No complaint had been issued in No. 4-CA-1690. The Trial Examiner
denied the motion.
The Respondent in its answer and at the hearing disputed the Board's jurisdiction,
raised a "hot-cargo" issue, argued that the members of the Association were pre-
cluded from bringing the charge because they had named Local 830 their representa-
tive. The Trial Examiner will discuss these matters in detail later herein.
At the conclusion of the evidence in the General Counsel's case-in-chief and
again at the close of the hearing the Respondent moved to dismiss the complaint.
Ruling was reserved. This ruling and any other reserved rulings are disposed of by
the final findings in the report.
A date was set for the filing of briefs with the Trial Examiner. The date was
extended by the Chief Trial Examiner to July 15, at the request of the Respondent
made after the close of the hearing.
No oral argument was presented. Briefs have been received from the Respondent
and the General Counsel.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
2 Sec. (8). (b) It shall be an unfair labor practice for a labor organization or its
agent-
(4) to engage in, or to induce or encourage the employees of any employer to
engage in, a strike or a concerted refusal in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services where an object thereof is :
(A) forcing or requiring any employer or self-employed person to join any labor
or employer organization or any employer or other person to cease using, selling,
handling, transporting, or otherwise dealing in the products of any other producer,
processor, or manufacturer, or to cease doing business with any other person ; . . .
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE AFFECTED PARTIES
A. The Charging Party
Primary Employer
The record is clear that the Delaware Valley Beer Distributors Association (Asso-
ciation), the Charging Party herein, was formed sometime in March 1958 its mem-
bers being retail domestic beer distributors whose business is largely confined to the
Philadelphia area.3
The members of the Association are mostly engaged in one man or family opera-
tions, the husband making deliveries and picking up merchandise while his wife
minds the telephone. In those cases, where the owner-operator has other than family
help he generally has but one employee. Of those members of the Association
testifying all but one 4 as well as their employees are members of Local 830.
The domestic distribution of beer, in which all of the Association members are
engaged is subject to the Malt Beverage Code of Pennsylvania which provides that
such domestic distributors of beer must purchase and sell beer only within the State.
There is no contention that any of the members of the Association are, in the
course of their operations as domestic beer distributors, engaged in interstate
commerce.
B. The Secondary Employers
There is no dispute that as alleged in the complaint:
C. Schmidt and Sons, Inc. (herein called Schmidt), Harry F. Ortlieb Brewing
Company (herein called Ortlieb), Esslinger, Inc. (herein called Esslinger), and
William Gretz Brewing Company (herein called Gretz), and herein collectively
called the Brewers, are each engaged in Philadelphia, Pennsylvania in the manu-
facture and sale of beer and related malt products. During the past year
Schmidt, Ortlieb Esslinger and Gretz each sold and shipped beer and related
products valued at in excess of $50,000, directly from their respective plants in
Philadelphia, Pennsylvania to points and places outside the Commonwealth of
Pennsylvania.
The parties stipulated that the bottle platform workers ("meaning workers on
the bottle platforms, platforms at which bottles and cases and so on, consisting of
bottles distributed") at Esslinger and Ortlieb, all but one or two bottle platform
workers at Schmidt, and all the bottle platform employees at Gretz are represented
by Local 183 of the Brewery and Beverage Union.5
The Respondent Local 830 however represents the drivers employed by the
Brewers.
The complaint further alleged:
Scott and Grauer, Antonio Origlio (herein called Origlio), Smiler Beverage
Company (herein called Smiler), and herein collectively called Importing Dis-
tributors, are engaged at Philadelphia, Pennsylvania, in the sale and distribution
of beer. During the past year Scott and Grauer purchased and caused to be
shipped beer valued at in excess of $500,000 to its establishment in Philadelphia,
Pennsylvania, directly from points and places outside the Commonwealth of
Pennsylvania.
The record discloses Local 830 to be the representative of all the employees of
the importing distributors involved herein.
There is no dispute that members of the Association ordinarily purchased the beer
which they distribute and sell in the city of Philadelphia from the Brewers Schmidt,
Ortlieb, Esslinger, Gretz, and the Importing Distributors Scott and Grauer, Origlio,
and Smiler.
C. The Respondent's contentions
1. Standards
At the hearing the Respondent, by motion, challenged the Board's jurisdiction in
the matter, and in its brief argues:
8 Louis Lanni, secretary-treasurer of Local 830, testified that certain domestic beer
distributors did not sign the 1958 contract between Local 830 and the Philadelphia
Beer Distributors Association, although previously "they have signed them every year."
4 Sinclair Washington.
6 Not connected with the Respondent Local 830.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 21
These beer distributors [ the members of the Charging Party ] purchase beer
from breweries and importing distributors . The beer purchased from breweries
is manufactured here in Pennsylvania . Beer purchased from importing dis-
tributors comes to rest in Pennsylvania before being purchased by these beer
distributors . Any interruption in the business of these beer distributors has
no affect upon the flow of goods and commerce because their product , a readily
salable commodity , will be sold by others, if not by them.
We, therefore , submit that the Board 's jurisdictional standards have certainly
not been met in this case . In addition , the General Counsel has not estab-
lished that the alleged unfair labor practices "affect commerce" within the
meaning of the Act.
The Trial Examiner finds no merit in the motions or argument . Section
8(b) (4) (A) is designed to safeguard the interests of strangers to a dispute between
a union and an employer and prevent the interruption of the strangers ' business
operations by reason of the conduct of the real parties to the dispute.
In determining if any particular case comes within the standards to be met before
it will assume jurisdiction , in secondary boycott cases (8(b) (4) (A)) the Board
determined in the McAllister Transfer Inc., case 6 that "it is not the particular busi-
ness between the primary employer and the secondary employer at the location
affected, but rather the entire business of the secondary at that location that governs
in applying the Board 's jurisdictional standards.. . [ Emphasis supplied.] The
essential facts of jurisdiction over the breweries and the Importing Distributors are
admitted in the answer . Where a pattern of unfair labor practices extends to various
secondary employers , who standing alone do not meet the minimum requirements,
the Board will extend its jurisdiction to them. For as it said in Euclid Food Inc.,7
"The power of the Board thus having been invoked to deal with a pattern of conduct
affecting enterprises , both within and without the jurisdictional standards , it seems
to us only reasonable, and effectuating the purposes of the Act to give the broadest
scope to the remedy we apply." In the Journeyman Barbers case 8 and in its latest
pronouncement on the subject , made after the hearing herein,9 the Board held "that
jurisdiction may be asserted by totaling the direct outflow of the primary employer
and the services of the secondary employers , thus satisfying the Board 's $100,000
indirect outflow standard."
As has been found herein each of the Breweries involved sold and shipped beer
valued at more than $50,000 to points outside Pennsylvania and Scott and Grauer
"imported" more than $500,000 worth of beer into Pennsylvania during the past
year. Thus the Board 's direct outflow and direct inflow standards have been met.
2. Contract
The Respondent's answer reads:
Respondent has no dispute with any members of the alleged Association over
the wages , hours and other terms and conditions of employment of the em-
ployees employed by members of the said Association. Respondent further
avers that all but two of the charging parties in the instant case have unlawfully
and, in violation of Section 8(a)(5) of the National Labor Relations Act, as
amended, failed and refused to sign the collective bargaining agreement negoti-
ated on their behalf by the Philadelphia Beer Distributors Association, their
collective bargaining representative , pursuant to a Power of Attorney and which
they are obligated to sign either under the said Power of Attorney or pursuant
to a Memorandum of Agreement signed by each of them or they have, in fact,
signed the collective bargaining Agreement between the Philadelphia Beer
Distributors Association and the Respondent . Respondent denies that it did
engage in any dispute with anyone concerning the status of any members of any
association as members in Respondent Union.
The Respondent argues in its brief:
We have previously pointed out that the ten beer distributors involved in
this matter are either members of , or bound by the collective bargaining con-
ducted by , the Philadelphia Beer Distributors Association . They were part of
8110 NLRB 1769-1772.
7 118 NLRB 130.
s 120 NLRB 936.
° Chauffeurs , Teamsters & Helpers, Local No. 564, International Brotherhood of Teawt-
8 ters, etc. (The Light Co., Inc.), 121 NLRB 221.
535'828-60-vol. 125-3
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a multi-employer bargaining unit. We may assume that the attempt of these
beer distributors to form their own organization in March, 1958, constitutes an
attempt to withdraw from this multi-employer collective bargaining unit. The
record is uncontradicted that this attempt to withdraw took place only after the
multi-employer collective bargaining Agreement had been negotiated and
completed.
Louis Lanni, secretary-treasurer of Local 830, testified that: Local 830 and the
Philadelphia Beer Distributors Association since 1940 had been under contract; the
contract was negotiated by representatives and then signed by "every beer distributor
in Philadelphia County"; the last contract expired September 30, 1957, and a now
contract effective by its terms October 1, was negotiated.
It is clear regardless of the dates appearing on the contract that it was not offered
for signature of the various distributors until March 11, 1958. Thus, Guy Basal,
president of Local 830, testified that on March 11 he gave out "cards" permitting
the loading of beer for distributors because at that time "we hadn't had the
contract."
Lanni further testified that after the contract was negotiated it was given to each
distributor to sign and the same method of negotiaion and signing had always been
in effect. He testified:
They come in in a body sometimes, but they sign individually.
Q. (By the Trial Examiner.) They sign individually?
A. Individually.
Q. All on the same document?
A. Not all on the same document. They sign the same document, but
separately.
They each get a copy of it.
Q. Each one signs his own copy?
A. His own contract.
The Respondent seeks to shunt aside the fact that although Local 830 previously
had the right to negotiate a contract for the signators, the negotiated contract after
being individually signed and binding them had expired September 30, 1957. Until
each distributor signed a new agreement the Respondent did not represent him.
Assuming arguendo that all members of the Association (Charging Party) are
bound by the contract between Local 830 and the Philadelphia Beer Distributors
Association, which clearly some of them did not sign, it does not follow that Local
830 may enforce the terms of the contract or obtain signatures to it by secondary
boycott.
The Trial Examiner sees no merit in the Respondent's contention that the
Charging Party was precluded from filing the charge herein nor the Regional Direc-
tor from issuing the complaint because of any contract Local 830 may have or had
with the Philadelphia Beer Distributors Association.
2. Hot cargo
The Respondent pleaded and argued that the incorporation of a hot-cargo clause
in its contracts with the Brewers and Independent Distributors protects its conduct
alleged to be unlawful in the complaint.
The decision of the Supreme Court in Local 1976, United Brotherhopd of Car-
penters and Joiners of America, A.F.L., at al. v. N.L.R.B.,t° as to the so-called hot-
cargo provisions in collective-bargaining agreements, has disposed of hot cargo as
a defense in conduct violative of Section 8(b) (4) (A). In Local Union No. 929
(The Mengel Company), 120 NLRB 1756; Biltmore Furniture Manufacturing
Corporation, 120 NLRB 1728; and Jahncke Service, Inc., 120 NLRB 1741, the
Board promptly fell into line with the Court's decision.
It. THE RESPONDENT
Respondent, Brewery and Beer Distributor Drivers, Helpers and Platform Men,
Local 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As heretofore found the contract between Local 830 and the Philadelphia Beer
Distributors Association expired September 30, 1957, and a new contract negoti-
10357 U.S. 93.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 23
ated . Before an individual copy of this contract , according to established custom,
was turned over to each member of the Philadelphia Beer Distributors for their
individual signatures , as Philadelphia Beer Distributors did not sign for its members,
certain members of Philadelphia Beer Distributors formed the Association, the
Charging Party herein.
Guy Basal, president of Local 830, testified that on March 11, 1958, before the
new contract was ready he issued certain "cards" to "whoever came in the office,"
the "cards" being the business card of Louis Lanni, secretary-treasurer of Local 830,
upon the back of which Basal wrote, "okay to load" and his signature. According.
to Basal he issued the cards because of "confusion around Schmidt's Brewery and
our people were expecting the contracts to be signed that morning." He testified:
I mean , our people in the breweries know our contract. They know that we
will not work. We have a clause in our contract that we don't have to work
with non-union people. Our people feel that if a man hasn't got a contract„
he is not a union man . We don't have to tell them. They know that. They
have known it for years and years.
According to Basal when a card was issued "I expected them to show it to the man
on the platform."
Basal further testified that as the contracts were signed he furnished the signer
with a sticker reading "Signed up with Local No. 830" to put on his truck.
Frank Barrett (whose testimony was undenied) conducts a one-man retail beer
distributing operation, has no employees, is a member of Local 830, joined the
charging Association in March 1958, and did not sign the contract between Local
830 and the Philadelphia Beer Distributors, testified that: on March 11, 1958, he
went to the office of Local 830 to obtain and was given a "white card," which was
the business card of Secretary -Treasurer Louis Lanni upon the back of which was
written in ink "F. Barrett-OK-Grub," Grub being a business agent for Local 830;
Grub told him the card "would be good to get beer for two days-at any brewery
or local importing distributor"; he then went to the Schmidt Brewery where Chick
[Charles] Fee, the steward for Local 830 there, stopped him and "asked me if I
had a card from the union"; and he showed Fee the "white card" and Fee then told
Schmidt's cashier "to give me beer." 11
As found herein the platform men at the breweries, with a few isolated excep-
tions, were not members of Local 830.
Barrett further testified he then went from Schmidt to Ortlieb. At Ortlieb he
discovered that his "white card" was not an "open sesame" to the brewer's stock.
As he drove up, John McAneny, the steward for Local 830 accosted him. Barrett
testified:
Q. What did Mr. McAneny tell you?
A. He asked me if I had signed a contract. I said , "No, I hadn't." I said,
"I have a white card." He said, "That is no good any more."
He continued:
Q. (By Mr. Brockman .) After he told you the white card wasn't any good,
what did you do?
A. I told him I had just left the union and I got a load of beer at Schmidt's,
and they told me the card was good for two days. He said, "Well, it ain't good
no more. You got to go back and sign a contract."
Barrett then telephoned President Basal at the Respondent's office holding the fol-
lowing conversation:
I told him that I had just left up there , and I had got a load of beer at
Schmidt's and the card was good for two days. I said, "I am at Ortlieb's, and
I want to get twenty cases of quarts."
Q. What did he say?
"President Guy Basal named the Respondent's stewards at the secondary employer's
establishments.
The Respondent and General Counsel stipulated in effect that Charles E. Fee, the
Respondent's steward at Schmidt ; Michael O'Kane, steward at Gretz ; Lester Parker,
steward at Esslinger; and John McAneny, steward at Ortheb, were either on vacation
or excused absence on certain days.
The Trial Examiner fails to see how temporary excused absence deprived the indi-
vidual steward of his office and status as official representative of the Respondent Local
830.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He said, "We are tired of you guys." He said , "You are trying to stick
it up our rear ends. You are going to stick it up yours." He said, "You are not
going to get nothing."
Q. (By Mr. Brockman.) Was there any more conversation between the
two of you?
A. He said, "If you want beer, you got to come back and sign the contract."
Barrett received no beer at Ortlieb that day.
Following his rebuff at Ortlieb, Barrett drove to Esslingen . He testified that upon
his arrival, Lester Parker, the steward for Local 830, "came out and asked if I had a
card"; that he exhibited his "white card" upon which he said "okay. So I loaded up
and left there."
Barrett testified that on March 18, he again went to Schmidt for beer; that as he
"pulled up" Steward Charles Fee asked if Barrett "was going to get beer" and upon
receiving Barrett's affirmative reply asked "are you signed up?" Barrett replied
"no," Fee then said "you are not going to get any beer."
Barrett left the Schmidt brewery without beer and drove to Esslinger where:
Well, I placed my order, threw my empties off. And the beer started coming
out. I started loading it on my truck and [Steward] Les Parker come over and
asked me if I had signed a contract. I said, "No." He said, "you can't get any
beer here."
Despite Parker's statement Barrett continued to load his truck, while he did so a
car arrived from which several men alighted and began to walk in front of the plat-
form where Barrett was loading. They were carrying picket signs which read,
"Brewing and Beer Distributors Drivers on Strike, Local 830." In the group with
the picket signs was one Stafford, a trustee of Local 830.
Apparently Barrett finished loading before he left.
Franklin Sizer, a member of Local 830, also a member of the Association and the
manager of Queen Bee Distributing Co., a local beer distributor, which did not sign
the new contract with Local 830, testified to an experience at Esslinger quite similar
to that of Barrett's on the sane day, March 18, 1958.
Sizer, whose testimony was not controverted, placed his order, his truck was
being loaded when Lester Parker, who identified himself to Sizer as the steward for
Local 830, told him "you can't get any beer," and then answered Sizer's "why?"
with "You haven' t signed a contract. That's it."
However, Sizer's order was loaded.
As Sizer was leaving he noted that Parker was walking with a sign reading "Beer
Distributors on Strike." Under this painted legend was written in ink, "ii very fine
lettering" "Delaware Valley Beer Distributors."
Martin Miller, who operates as a local retail beer distributor, has two employees,
is a member of the Association, and a member of Local 830, also visited Esslinger
to get beer on March 18, but unlike Barrett and Sizer he was not successful.
Miller testified, without any contradiction, that as he drove up to the Esslinger
platform he saw a group of men in front of the platform, among them was Guy
Basal, president of Local 830, and the Respondent's steward, Lester Parker; that he
attempted to place his order with Frank Feeney, the shipper of Esslinger:
Mr. Feeney said, "I can't load your truck while those fellows," and he pointed
at the line of men, "are standing in front of the brewery." I argued with him,
and as I did, Lester Parker, who had been standing in that line, walked over to
Mr. Feeney-
TRIAL EXAMINER: Who is Lester Parker?
The WITNESS: He is the steward for Esslingen. He walked over to Feeney
and pointed at me and said , "This guy doesn't get any beer. He hasn't signed
the contract." I argued a bit but I didn't get any beer.
Returning to Barrett's testimony, which as heretofore found is entirely undenied,
as is all the testimony of the General Counsel's witnesses relating to incidents oc-
curring during their attempts to purchase beer from Brewers and Importers. Barrett
testified that on March 19 he went to Gretz, gave his order to the order taker, his
check to the cashier, then drove to the platform with the "slip" for his purchased
merchandise. At the platform he was stopped by Michael O'Kane, the steward for
Local 830 at Gretz who:
Asked me if I signed a contract. I said , "No." He said, "Well, you can't get
any beer. We won't load you."
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 25
Barrett left without beer. From Gretz, the would-be purchaser of beer then drove
to Ortlieb where he encountered the Respondent' s steward , John McAneny. Bar-
rett testified:
Q. What happened at Ortlieb's?
A. McAneny come out and challenged me.
Q. What did he say?
A. He asked me if I had signed a contract. No. He didn't ask me that.
He said-he asked me if I wanted beer. I said "Yes." But he said, "you
can't have any beer."
McAneny then told a workman on the platform, "Vince, unload them [empty
bottles] but don't give him any beer." During the time Barrett was at Ortlieb,
trucks were being loaded, the trucks all bore signs or stickers reading "Signed up
with Local No. 830." These signs had been fastened to trucks since March 12.
While all this was going on, Albert Shultz, one of the Respondent' s trustees, was
present "out on the street." Barrett left Ortlieb without beer.
March 19 became a day of frustration for Association members seeking to pur-
chase beer at their customary sources of supply. Although by March 19 the
Association members should have been fully aware that Local 830 would attempt
to thwart their efforts to obtain merchandise, they of course did not know that
the Respondent's conduct could have been anticipated by those who supplied their
wares as evidenced by the testimony of a very reluctant witness.
Walter Dea, testifying in response to a subpena by the General Counsel and
accompanied by his personal attorney, stated that he was traffic manager for Gretz;
that "I deal with all the customers. I handle all the products, ingoing and outgoing,
of the company. I ship and have charge of all the drivers"; that Michael O'Kane
is shop steward for Local 830 at Gretz; that early in March 1958, "Mr. O'Kane
came to me and said the distributors were not going to be loaded." 12
Dea who obviously sought to evade answering, however, did testify:
Q. (By Mr. Brockman.) The reason the beer was stopped was because
the distributors did not sign the contracts, is that correct?
A. That is what Mr. O'Kane told me, yes, sir.
The Trial Examiner believes it is only fair to infer from the evidence considered
as a whole, including the stipulations with reference to leaves of absence and vaca-
tions granted to the Respondent's stewards by all the Brewers for approximately the
same period, that the Brewers all received similar information from the Respondent's
stewards at about the same time. The Trial Examines so finds.
Franklin Sizer testified that on March 19 he came to Ortlieb to obtain beer,
was met by McAneny who 'told him "you can't get any beer"; that he (Sizer) then
spoke to a company platform bottling house employee giving him the office order
but this platform employee told him "as long as those men are picketing the place
I can't serve you beer." Sizer left without beer.
Norman Samoiloff, who together with his wife operates a retail beer distributing
enterprise, is a member of Local 830 and of the Association, and who did not sign
the new contract offered by Local 830, testified, without contradiction, that on March
19, he came to Ortlieb, !that Steward McAneny told him "you can't get any beer."
Samoiloff testified:
Q. . Did he say why?
A. He says, "You guys didn't sign any contracts so you can't get beer."
He further testified that McAneny then walked "up and down parallel to the platform,
loading platform"; that he attempted to place his order with the platform workers
but:
They took my empties off and I was ready to place my order, and they all
walked off, and I was just left standing there.
Odell Stukes, a beer distributor with one employee, both he and his employee
being members of Local 830, Stukes being also a member of the Association, testified
without contradiction, that on March 19 he went to Ortlieb's for stock, gave his order
to "the fellow that takes orders and loads and unloads there," who "started to load
the truck," at which time another man came up who said to the loader "you have
"Emphasis supplied.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pickets out there" upon which the loader said to Stukes "I can't load you, I've been
instructed not to." Stukes then went to the office, paid for the intended beer, and
returned to the loader who again refused to give him any beer.
Hugh Sweeney testified without contradiction that: he is a retail beer distributor,
a member of Local 830 as are his two employees; he is a member of the Association
and not a party to the Local 830 contract; on March 19 he attempted to place an
order for beer with the clerk in the platform office at Ortlieb but the clerk refused
to accept it; he then went into the main office and "got an order written" (accepted)
which he took back to the loading platform but no one would wait on him; and
during these happenings he saw Steward McAneny "walking up and down in front
of the platform."
Sweeney could hardly have been too greatly surprised by the March 19 occurrence
for on March 11 at Ortlieb, one of his employees, in Sweeney's presence, was refused
beer by a platform worker who stated "that he had to have a card from the union
to be loaded with beer," and that on the same day this platform attendant also refused
to serve him. Sweeney testified:
He asked me, did I have a card, a signed card from the union.
Q. And what did you say?
A. I said no.
Q. Then what did he say?
A. No beer.
James Lynham, an Association member testified that on March 19 he came to
Ortlieb for beer, tried to place his order with the platform man who generally waited
on him who told him "I am sorry Jim . . . I can't wait on you. I can't take your
order." Lynham asked why and was answered, "You will have to see Mac.,
McAneny." Lynham further testified he then spoke to Steward McAneny:
I approached him, and I said, "Why aren't I getting beer?" And he said,
"Did you sign the union contract?" I said, "You know I didn't," and he said,
"Well, !then, you can't get beer."
Lynham's testimony was undenied.
Sinclair Washington testified, without contradiction, that he is not a member of
Local 830; is a member of the Association who did not sign the Respondent's offered
contract; that on March 19, he went to Ortlieb attempting to get beer but could not
be served:
I asked the fellow in the extreme end why we couldn't get served, why I
couldn't get served.
Q. Who was this fellow on the extreme end of the platform? Do you know?
A. I asked him for his name. He said, "Don't involve me in it. I am not a
member of Local 830."
Washington continued:
The WrTNESS: So he said, "Don't involve me." Well, I asked, "Why can't
we get beer?" He said, "Because a man is walking up and down in front of
you, in front of the platform."
Q. Did you reply to him?
A. Yes. I replied. I said, "What do you mean, `walking' "? He said,
"Well, he is picketing," me. I said,-Well, that was my first time being to the
brewery or actually being involved in anything of that sort, I said, "Well,
picketing for what?" He said, "Because you are not-you haven't signed a
contract."
Washington left empty-handed or rather with an empty truck.
The members of the Association were not only prevented from receiving mer-
chandise at the Brewers because of the refusal of the Brewers' employees to serve
them, as herein found, but they experienced similar difficulties at the establish-
ments of various Importing Distributors during the same period.
Carl Smiler testified that: he is a member of a firm operating under a State im-
porting distributing license under the name of Smiler Beer Distributing Company;
the firm has been party to a collective-bargaining contract with Respondent "for
almost ten years"; he is well acquainted with Guy Basal, the president of Local 830;
and during the afternoon of March 11, 1958, he received a telephone call from
President Basal who asked him to inform the Company's shipper "not to honor the
white cards that were issued" on that same day.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 27
Smiler further testified:
TRIAL EXAMINER: How did you know what he meant by the phrase "white
cards?"
The WITNESS: Well, that particular morning, two of my trucks were down
at the breweries, and we couldn't get beer because we didn't have the white
card ourselves.
The WITNESS: When we couldn't get beer that morning, I called the union
office and talked to Mr. Basal and he said, "Send your men over and we will
issue the white cards," and we were able to get beer.
Basal denied having given the above related telephone message to Smiler.
From his observation of the witnesses and on the entire record in the case, the
Trial Examiner credits Smiler.
The parties agreed on the record that on April 3, 1958, the Honorable Francis L.
Van Dusen, Judge of the United States District Court for the Eastern District
of Pennsylvania, issued a Temporary Restraining Order prohibiting Local 830 from
interfering with delivery of beer by the Brewers and Importing Distributors to
members of the Association.
Barrett testified that at about 3 p.m., April 3, he went to Smiler's, ordered and
paid for five cases of beer, took the warehouse order to "the man out there," this
man and another refused to serve him and told Smiler, their employer, "they were
not working there any more. They weren't loading any trucks." Smiler then
personally filled Barrett's order.
Barrett further testified he then drove to Origlio where he attempted to leave
"empties" for refund but the employees refused to accept them; that he then went
into the office, first setting the "empties" off on the pavement himself, and asked for
his refund but that as he stood in the office a voice was heard over the "intercom"
from the platform calling, "Don't give him no refund because we are not going to
accept his empties." Barrett was not then given the refund for the "empties" he had
set off.
Miller testified that at about 4 p.m., April 3, he visited Origlio, placed and
paid for an order of beer, took the order slip to the platform and gave it to Frank
Origlio, who acts as shipper. While Miller was waiting Frank Vadino 13 the steward
for Local 830 at the establishment asked him (Miller) for his union card which he
then showed to Vadino. Miller asked Origlio "if I was going to get beer or not,"
Origlio then told an employee "get me five quarts of Ballentine," but this employee
answered "I'm not going to load that truck"; that Origlio immediately discharged
the man, ordered Steward "Vadino" to load the truck, however Vadino refused and
Origlio discharged him; that he then ordered a third man to load the truck was
again refused and also discharged this man. Miller further testified:
Then he turned to me and said that there was an important holiday coming
up and that if he continued to fire men, he wouldn't be able to stay in business,
and what did l want him to do. So 1 said, "Well, you've tried to give me beer,
but if you can't, I'll just leave."
Stukes testified that: on April 3, he came to Origlio, was asked at the platform
"if 1 had signed the contract"; he saw President Basal, Local 830 Business Agent
Grub, and Steward Vadino in the immediate vicinity, and that:
I talked to Frank Origlio and I asked him, I stood around for quite some time,
and Frank Origlio said to me, "1 have fired three men already and if I fire any
more, I won't have anybody here to work." Then I said, "Okay," and I took my
empties and my station wagon and I moved it.
Flordor L. Cicchini testified that on April 3, he came to Scott and Grauer, im-
porting distributors with whom he customarily deals, placed his order with the
order taker, who in turn gave it to two platform employees, but they refused to fill
the order. Cicchini testified:
Q. What happened when they were given that order? Do you know?
A. They were fired. They wouldn't load it.
Q. Who fired them Do you know?
A. Well, sir, Mr. Grauer was on the scene at the time and he asked for them
to have their cards turned in.
' Basal named the steward at Orlglio's as Frank Medino.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Cicchini testified that at the time the men were discharged,
three customers' orders for beer had been placed (Sweeney, Washington, and him-
sel) and given to the same men discharged by Grauer.14
Washington testified that he visited Scott and Grauer on April 3, 1958. He
testified as follows:
Well, on that day I placed an order, went to the booth and placed an order
for beer, and I came back out. I attempted to give my order to the same fellow
that I had attempted to give it to previously on the other date. And he asked
me, "Did you sign the contract _vet?" I said, "No." He sad, [sic] "Well, I am
sorry. I can't serve you." I said, "Well, there is a restraining order out which
would prohibit you from refusing to serve me beer."
He said, "I don't know anything about a restraining order. I am sorry. You
haven't signed a contract. I can't serve you."
Washington then spoke to Grauer who instructed employee Alex Schroeder to fill
Washington's order:
And then the employee said, "No, I will not fill this man's order. He hasn't
signed a contract. He is not a member of the union. I will not serve him."
Sizer testified, corroborated by Samoiloff and Miller, that on April 7, Sizer made
an attempt to buy beer at Esslinger which was at the time being picketed, the pickets
carrying signs inscribed "Distributors on Strike" and written in ink "against Delaware
Valley"; that Sizer was told by the platform worker, "Well, as long as those men
are picketing your truck, I can't serve you"; that following this Samoiloff attempted
to take pictures of the pickets, a fight took place, Sizer drew a revolver and fired it.
The three would-be purchasers received no beer.
The experiences of Michael V. DeRosa in his attempts to get beer from his cus-
tomary suppliers furnish a summary of the common experiences of all the witnesses
who did not sign the Local 830 contract with distributors. DeRosa, a member of
the Association, testified that at Esslinger he was told by Steward Parker, he could
get no beer until he had one of the Local 830 stickers affixed to truck, thereafter,
"the man on the platform he took my empties but he wouldn't take my order."
On the same day DeRosa attempted to place his order for beer in the Schmidt
office which was customary procedure, and was told, "Sorry DeRosa, no beer."
Also on March 13, he drove into Gretz, placed his order "the fellow there said
to him as he presented his paid order slip "No beer DeRosa-see the steward."
DeRosa went to O'Kane, the Local 830 steward, who told him he would get no beer
because "I had no card on the window."
On March 19, DeRosa again visited Esslinger which was at the time being picketed
with signs reading "Beer Distributors on Strike" and "Delaware Valley Beer Distrib-
utors." (The Association.) Parker, the Respondent's steward, told a platform
worker "No beer for DeRosa. Don't load that truck."
On March 24, DeRosa placed his order in the office at Origlio, however, the plat-
form man refused him service after Vadino, the Respondent's steward there, had
called out to him, "No beer for DeRosa. Don't load that truck." However, DeRosa
continued his attempt to get delivery of the beer he had paid for. He testified:
Q. (By Mr. Brockman.) Was anyone there?
A. Yes. Then Smitty, he works there for Origlio. I asked him, "how about
getting me my beer, Smitty?"
Q. Was he standing there where Vadino spoke to you?
A. Yes. I said, "how about getting my beer, Smitty?" And he said, "Get
the - out of here."
Q. He used a curse word?
A. Yes. I put it right down here.
Mr. BROCKMAN: You are not interested in the curse word he used, sir?
TRIAL EXAMINER: No.
DeRosa's testimony was not denied and is credited.
The record also contains testimony regarding incidents involving dealers not named
in the complaint. This testimony was taken over objection. The Trial Examiner
does not advert to it nor base any findings thereon.
14 The Trial Examiner rejected an offer of proof by the General Counsel to the effect
that at this same time Cicchini observed the U . S. marshal serving the court 's temporary
restraining order on one of the workers involved.
BREWERY AND BEER DISTRIBUTOR DRIVERS, ETC. 29
Conclusion
There can be no doubt that because the members of the Association refused to
enter into a contract with Local 830, the Respondent Local 830 brought pressure
upon various individuals, not party to the disagreement between Local 830 and the
Association (the primary employers) by inducing the employees of these employers,
not party to the dispute (secondary employers), by picketing and other conduct to
engage in concerted refusals in the course of their employment to perform services
they ordinarily performed, for the sole purpose of causing their employers (sec-
ondary employers) to cease doing business with real parties to the dispute (primary
employers) and thus force these primary employers to accept the contract offered
them by Local 830.
The conduct complained of all occurred at the premises of the secondary em-
ployers, and not at the premises of the primary employers.
This conduct is violative of Section 8(b) (4) (A) of the Act, as Congress "in an
effort to narrow the area of industrial strife, and thus to safeguard the national in-
terest in the free flow of commerce [has banned secondary activity] when utilized
to conscript in a given struggle the employees of an employer who is not himself a
party to the dispute." 15
The Respondent contends in its brief that "the Union had the right to publicize
any dispute with Beer Distributors at the Breweries on any other sites of the trucks."
The Trial Examiner is of the opinion that this contention when applied to the facts
of the instant matter must be rejected, first because of the well-established opinions
of the Board as set out in Gotham Broadcasting Corp. (110 NLRB 2116 enfd. 226
F. 2d 90'0 (C.A. 2), cert. denied 351 U.S. 962), and also inasmuch as the conduct of
Local 830 had the double purpose of reaching employees, if any, of the primary
employers and also making an unlawful appeal to the employees of the secondary
employers for an illegal purpose.
A careful reading of all the proceedings of the Court and the Board, initially and
on remand in the Sales Drivers case 16 shows that although the Court held that
picketing at the premises of a secondary employer cannot be proscribed solely on the
ground that another location is available it may be prohibited if the evidence sup-
ports a finding that the real purpose of the picketing was to appeal -to the employees
of the secondary employer to put pressure on their employers not a party to the
dispute.
Final Conclusions
By picketing and other acts and conduct as found herein above occurring at the
establishment of Schmidt, Ortlieb, Esslinger, Gretz, Scott and Grauer, Origlio, and
Smiler, the Respondent, Local 830, has induced and encouraged the employees of
the said employer companies to engage in concerted refusals in the course of their
employment to perform services for their respective employers, one of the objects
of the said conduct of Local 830 being to require or force Schmidt, Ortlieb, Esslinger,
Gretz, Scott and Grauer, Origlio, and Smiler, to cease doing business with members
of the Association; the said conduct being violative of the Act, more particularly
Section 8 (b) (4) (A) thereof. The Trial Examiner so finds.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, Local 830, as set forth above, occurring in
connection with the operations of the Charging Party and the, Secondary Employers
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and such of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent, Local 830, has violated Section 8(b) (4) (A)
of the Act, it will be recommended that it cease and desist therefrom and take cer-
tain 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, the Trial Examiner makes the following:
15 Paper Converters Union v. LeBaron , 171 F. 2d 331 , 334 (C.A. 9).
18 Sales Drivers , Helpers & Building Construction Drivers, etc . Union v. N.L .R.B., 229
F. 2d 514 (C.A., D.C.), for remanded decision see 116 NLRB 1020.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent, Brewery and Beer Distributor Drivers, Helpers and Platform
Men, Local 830, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Independent, is a labor organization within the meaning of
Section 2(5) of the Act.
2. By engaging in picketing and by acts and conduct as set forth herein above,
the Respondent, Local 830, has engaged in, and has induced and encouraged the
employees of Schmidt, Ortlieb, Esslinger, Gretz, Scott and Grauer, Origlio, and
Smiler to engage in concerted refusals in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on goods, articles,
materials or commodities or to perform services, an object of the Respondent's con-
duct being to force or require the above-named employers to cease doing business
with members of the Association. By said conduct, herein found to be unlawful,
the Respondent has engaged in unfair labor practices within the meaning of 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.]
SUPPLEMENTAL INTERMEDIATE REPORT
The following is from the Board's Order in the above matter dated October 20,
1958:
ORDER
On August 22, 1958, Trial Examiner Louis Plost issued his Intermediate
Report in the above-entitled proceeding. The General Counsel, the Charging
Party, and the Respondent filed exceptions thereto. In its exceptions the re-
spondent included as paragraph number 25 an exception to the failure of the
Trial Examiner to permit Respondent to examine statements given by witnesses
for the General Counsel for the purpose of cross-examining such witnesses.
Meanwhile, on August 28, 1958, the Board issued its Order Reopening
Record and Remanding Proceeding in Ra-Rich Manufacturing Corporation,
121 NLRB 700, in which it held that pretrial written statements of the General
Counsel's witnesses which are directly related to their testimony given in the
proceeding should be made available, upon proper demand, to respondents
affected thereby.
On October 31, 1958, the Respondent having meanwhile filed a motion to reopen
the record the Board remanded the proceeding to the Regional Director for the
Fourth Region "to permit the further examining of witnesses whose pretrial state-
ments have been made available to the Respondent" on its request, that testimony
be taken by Louis Plost, the Trial Examiner and further that:
upon conclusion of the supplemental hearing, unless the parties waive their
rights to such hearing, the Trial Examiner shall prepare and serve upon the
parties a Supplemental Intermediate Report containing findings of facts, con-
clusions of law, and recommendations relating to the unfair labor practices
alleged in this proceeding, and that, following the service of such Supplemental
Intermediate Report upon the parties, the provisions of Section 102.46 of the
Board's Rules and Regulations shall be applicable.
A hearing was arranged and held before the Trial Examiner at Philadelphia,
Pennsylvania, on May 20, 1959.1 All the parties were represented at the hearing, the
Respondent had examined the pretrial statements and indicated he would question
Franklin Sizer, Odell Stukes, Hugh Sweeney, Norman Samoiloff, and Michael V.
DeRosa, all of whom had previously testified. All the above-named witnesses were
present at the hearing on May 20, however, the Respondent did not call Norman
Samoiloff. No oral argument was made. No briefs were filed.
The Respondent examined Sizer, Stukes, Sweeney, and DeRosa on their pretrial
statements, which each had furnished the Board. In the considered opinion of the
Trial Examiner no material contradictions between the former testimony and the
pretrial statement of the witness was shown in any case. The Trial Examiner asked
I The delay was caused by the fact that on December 1, 1958, the Trial Examiner was
hospitalized and not discharged as able to perform his duties until April 1959.
DU-WEL DECORATIVE COMPANY 31
that the pretrial statements be introduced as exhibits , which was done. The state-
ments have been examined by the Trial Examiner , together with all the testimony
in the light to the original and the supplemental hearing and no material difference
exists which would warrant any modification of the findings and conclusions made
by the Trial Examiner in his report dated August 22, 1958.
It is therefore recommended that the Board adopt the recommendations made by
the Trial Examiner in this matter in his original report dated August 22, 1958,
except that the dates for compliance as to posting of notice , and notification to the
Regional Director by the Respondent and action by the Board shall run from the
date of this Supplemental Report.
Du-Wel Decorative Company and Du-Wel Metal Products, Inc.
and International Association of Machinists , AFL-CIO, Peti-
tioner. Cases Nos. 7-RC--4132 and 7-RC-4133. November 9,
1959
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9(c) of the
National Labor Relations Act, a consolidated hearing was held before
James P. Kurtz, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.'
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Members Rodgers, Bean, and Fanning].
Upon the entire record in this case 2 the Board finds :
1. Each Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of each Employer.
3. The Employers moved to dismiss the petitions, on the ground
that they are barred by contracts made with the Intervenor. Inter-
venor takes the same position as the Employers. Petitioner contends
that neither contract is a bar because, inter alia, each contains a union-
security clause which was made at a time when the Intervenor was not
in compliance with Section 9(f), (g), and (h) of the Act then in
effect.,
The record indicates that since 1954, the Intervenor has not been in
compliance with the filing requirements of the Act. On November
'Die Casters Independent Union, which has a current collective - bargaining agreement
with each Employer , was granted leave to intervene . We find that this intervention
was properly granted . M. d W. Transportation Co., 115 NLRB 1727.
2 The Employers' request for oral argument is hereby denied, because , in our opinion,
the record and the Employers' brief adequately set forth the issues and the positions
of the parties.
3 These sections have been repealed by the Labor Management Reporting and Disclosure
Act of 1959, effective September 14, 1959. However, at the time each contract, urged
herein as a bar, was executed and at the time each petition was filed, these filing pro-
visions were in effect.
125 NLRB No. 5.