Chauffeur, Teamsters, Warehousemen and Helpers

National Labor Relations Board - Board Decisions

Jun 25, 1953

105 N.L.R.B. 740 (N.L.R.B. 1953)

740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN AND
HELPERS LOCAL UNION NO. 135, affiliated with INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
AFL and PITTSBURGH PLATE GLASS COMPANY. Case
No. 35-CC-19. June 25, 1953
DECISION AND ORDER
On March 24, 1953, Trial Examiner Thomas S. Wilson
issued his Intermediate Report in the above -entitled proceeding,
finding that the Respondent has not violated Section 8 (b) (4)
(A) of the Act as alleged in the complaint and recommending
that the complaint be dismissed, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a
supporting brief.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Boardhas considered the Intermediate
Report , the exceptions and brief , and the entire record in the
case, and hereby adopts the findings , conclusions , and rec-
ommendations of the Trial Examiner with the following
exceptions , modifications , and additions:'
1. The Trial Examiner found that the refusal of employees
of various trucking firms to handle the freight of Pittsburgh
Plate Glass Company, hereinafter referred to as Pittsburgh,
because of a strike at Pittsburgh , was "the determination of
the individual workman himself, acting without orders or
instructions etc., from Local 135, and so no violation of
Section 8 (b) (4) (A) occurred." The Trial Examiner further
found that the contracts of the Respondent with the trucking
carriers contained an "unfair goods" clause similar to that
of Conway's Express' and therefore concluded that the "unfair
goods" clause constituted a valid defense to the secondary
boycott allegation herein. While we find on the basis of the
facts set forth below that the Respondent engaged in and
induced employees of various trucking carriers to engage in a
concerted refusal to handle Pittsburgh freight, we agree with
the Trial Examiner that such action was a permissible
exercise of contractual rights under the Conway' s Express
principle and hence no violation of the Act.
Following a strike by Teamsters, Local No. 716, sister
local of the Respondent , against Building Contractors Asso-
ciation of Indianapolis, Inc., of which Pittsburgh was a
member, a settlement was reached on June 7, 1952. However,
1 We reject as completely extraneous to the issues the comments of the Trial Examiner
contained in the last 2 sentences of footnote 3 of the Intermediate Report
The contention of the Respondent that Pittsburgh agreed to a withdrawal of the charge
herein is without foundation.
2 International Brotherhood of Teamsters, etc (Henry V. Rabouin, d/b/a Conway's Express),
87 NLRB 972, affd. 195 F. 2d 906 (C A. 2).
105 NLRB No. 120
CHAUFFEUR , TEAMSTERS , WAREHOUSEMEN AND HELPERS 741
a concededly lawful picket line was maintained sporadically
at Pittsburgh because it withdrew bargaining authorization
from the Association and did not adhere to the settlement
until late September 1952 . During the period May-September
1952 , employees of various trucking carriers refused to
handle Pittsburgh freight at the terminals . All but one of the
carriers whose services Pittsburgh sought to utilize operated
under both the "Central States Area Over - The-Road Freight
Agreement" and the " Indiana State Cartage Agreement"
covering distance and local hauls, respectively . The agree-
ments contained virtually the identical " unfair goods" or
"protection of rights " provision as follows:
It shall not be a violation of this contract and it shall
not be cause for discharge if any employee or employees
refuse to go through the picket line of a Union or refuse
to handle unfair goods . Nor shall the exercise of any
rights permitted by law be a violation of this contract.
The term "unfair goods " as usedinthis Article includes,
but is not limited to, any goods or equipment transported,
interchanged , handled , or used by any carrier , whether
party to this Agreement or not , at whose terminal or
terminals or place or places of business there is a
controversy between such carrier or its employees on the
one hand, and a labor union on the other hand ; and such
goods or equipment shall continue to be " unfair" while
being transported , handled or used by interchanging or
succeeding carriers , whether parties to this Agreement
or not , until such controversy is settled.
The Union agrees that , in the event the Employer
becomes involved in a controversy with any other Union,
the Union will do all in its power to help effect a fair
settlement.
It is understood that in the event the decision of the
National Labor Relations Board in the Conway case is
sustained or prevails on appeal to the higher Federal
Courts, this Article will be renegotiated and rewritten
to provide the Union with the maximum of protection
afforded by such decision.
San Soucie , president of the Respondent, testified:
I told the employers that under the terms and provisions
of our agreement , the men as individuals did not have to
handle strike bound merchandise or unfair goods and if
they refused to handle it, that the company was in no
position to do anything about it.
Ogle, terminal manager of Bowser Truck Lines, stated
that he knew Cook , Respondent ' s steward at Bowser , refused
to handle Pittsburgh freight because of the "unfair goods"
provision in the contract . Dungan , terminal manager of Lucas
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motor Express, testified that he knew of the "protection of
rights" clause and that the parties operated under it. White-
side, terminal manager of I R C & D Motor Freight, testified
that both the Respondent and the company operated under the
"protection of rights" clause of the contract. Dininger,
Respondent's business agent, testified that Kewitt, terminal
manager of Interstate Motor Freight, asked him if he could
explain what the men's rights were in connection with their
refusal to handle Pittsburgh freight. Dininger testified further
that "I read the article off „["protection of rights"J, and he
Kewitt] said, 'Well, of course, according to that, it was his
Kewitt's] opinion, according to that, the men had a right to
refuse it., " Brennan, secretary of Commercial Motor Freight
and chairman of the employers grievance committees under
the contracts, testified that upon learning that Pittsburgh
freight was refused at his terminal, he talked with Miller,
business representative of the Respondent, and asked why the
freight was turned down. Miller replied that the matter was
covered by the "protection of rights" provision in the over-
the-road freight agreement. Brennan suggested that Miller
contact San Soucie "relative to the opinion as stated to me,
and he said he would." Brennan stated that no reply was ever
received from San Soucie "because the next time everyone
was handling the Pittsburgh Plate Glass freight."
Larnmert, the Respondent's business agent, stated that at
union meetings San Soucie referred to the union agreements
in answer to questions about Pittsburgh freight at the same
time informing the members that "the men had the right . . .
to follow their own feelings . . . ."
Lynch, Respondent's steward at I R C & D Motor Freight,
at which terminal the employees refused to handle Pittsburgh
freight, admitted that he had requested Lammert to inform
him "if there was a chance to start refusing (Pittsburgh] freight
again" and that Lammert gave him "a hint and I knew what
I was going to do." Lynch testified further:
Q. [General Counsel] Well, what did you tell [the men] if
anything about this Pittsburgh Plate freight, after youtalked
with Mr. Lammert?
A. Well, I go back and tell them that we have the right,
as individuals, to refuse to handle any unfair goods and
all my men in the barn are union men, and they just
wouldn't handle it.
Q. And did you tell them that you hoped they wouldn't
have anything to dt â–º with that?
A. I say, "you guys can do as you damned please, I'm
not going to handle any of it." I said, "even if your mother
works over there, you can't do anything to benefit her or
anything. You got to work on you own or you're going to
get in the grease in this kind of trouble."
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN AND HELPERS 743
Crosley, the Respondent 's day-shift steward at Commercial
Motor Freight, testified that Pittsburgh drivers backed their
truck up to the dock whereupon he informed them in the
presence of the other employees that "if they were picketing
the place out there [Pittsburgh] , I refused to take the freight."
Crosley explained that "it was my understanding for us to do
that." Mesman, the Respondent ' s steward at B B & I Motor
Freight, at which terminal the employees refused Pittsburgh
freight, testified that he did not tell employees not to handle
Pittsburgh freight , that "I didn't have to say nothing, they're
union members ." When asked whether the men decided
silently not to handle the freight, Mesman stated : "Well, not
silently, no, but we are union members ." McCoy, the Re-
spondent ' s alternate steward at Lucas Motor Freight, admitted
that " it was not very advisable" to handle Pittsburgh freight
during the strike because he might get in trouble with the
Respondent and his fellow members as well. After the strike
was over , a "few phone calls" were made in which Business
Agent Lammert told the stewards that " I was informed that
the strike was over."
Robertson , terminal manager at B B & I Motor Freight, in
his conversations with Business Representative Miller con-
cerning the refusal of his employees to handle Pittsburgh
freight , was informed by Miller that "the Union men had
been instructed not to receive any freight from Pittsburgh,"
and "scab labor was the reason we couldn' t handle the
freight.'"
In view of the foregoing 4and on the record as a whole, we
find that during the period involved herein , the Respondent
engaged in , and by its instructions and other appeals, induced
and encouraged the employees of various trucking carriers
to engage in, a concerted refusal to handle Pittsburgh freight.
2. Contrary to the contentions of the General Counsel, we
believe the "protection of rights" provision of the contracts
herein is in all material respects similar to the "hot" cargo
contracts involved in Conway' s Express. We agree with the
Trial Examiner that the term "unfair goods" by the language
of the provision and the traditional meaning of the phrase, was
not limited to the goods of struck carriers but extended to
Pittsburgh as well. And the findings above demonstrate that
with but one belated exception , the employers herein affirmed
the contracts by acquiescing in their enforcement during the
period of the Respondent ' s refusal to handle Pittsburgh's
sThe Trial Examiner treats Miller 's conversations with Robertson as inducement of an
employer to refuse to do business with another employer and hence not evidence of induce-
ment under Section 8 (b) (4) (A). The General Counsel excepts for the reason that in context
this statement is an affirmance by the Respondent of the strike action. We find merit in the
General Counsel's exception. Miller's statements are probative evidence of the existence of
the Respondent's participation in the actual refusal of the employees to handle the struck
freight or to refuse to handle the freight if tendered.
4The above testimony is credited as either uncontradicted or tantamount to admissions
against interest . Contrary to the Trial Examiner 's finding , Pittsburgh drivers Robertson and
Carter stated they had difficulty in delivering freight at many terminals and that freight got
by at only a few terminals.
291555 0 - 54 - 48
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"unfair goods ." 5 Further , the fact that in Conway the contracts
expressly reserved to the union the rights to refuse to handle
"hot" goods whereas here the contracts provide that if
employees refuse to handle certain goods it shall not be
cause for a breach of contract or discharge , does not for us
constitute a real difference . As the Board held in Conway's
Express,
As they [the secondary employers ] consented , their em-
ployees ' failure to deliver freight to or accept freight
from Conway trucks was notinthe literal sense a " strike"
or "refusal " to work,' nor was any such concertedinsub-
ordination contemplated by the [Union ] when it caused the
employees to exercise their contractual privilege.
29 Section 8 (b) (4) (A ) proscribes engagement in, or inducement of employees to
engage in , "a strike or a concerted refusal in the course of their employment to
use" etc " . . where an object thereof is : ( A) forcing or requiring any employer
to cease doing business with any other person."
So, as the employers in this proceeding consented to the
"unfair goods" provision of the contracts , their employees'
failure to handle these goods was not a strike or concerted
refusal to work under Section 8 (b) (4) (A). Nor was their
employees ' refusal to handle Pittsburgh freight "in the course
of. . . employment" within the meaning of Section 8 ( b) (4) (A)
for that employment as defined by the contracts excluded from
the required job duties work on " unfair goods." It cannot be
said , therefore , that by causing the employees to exercise their
contractual privilege , the Respondent induced a concerted
refusal to work in the course of employment with an object
of forcing any employer to cease doin business with any other
person in violations of Section 8 (b) (4) (A). We conclude it
matters not that the contracts did not reserve to the Respondent
as distinguished from the employees the right to refuse to
handle "unfair goods."
The Court of Appeals for the Second Circuit held in affirming
the Board ' s decision in Conway's Express:
Consent in advance to honor a hot cargo clause is not the
product of the union 's "forcing or requiring any employer
... to cease doing business with any other person."
The Board here reaffirms that principle .6 We therefore find
that the Respondnet did not violate Section 8 (b) (4) (A) of the
5Moreover , as the Trial Examiner found, no employee was disciplined for refusing to
handle Pittsburgh freight
6 The Board has carefully reconsidered the considerations underlying the Conway principle
in the light of the arguments of the General Counsel in this proceeding and finds no reason
to depart therefrom . We do note, however , that the Board does not decide in this or the Conway
case whether a union may with impunity strike to compel an employer to agree to a "hot"
cargo clause.
CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN AND HELPERS 745
Act by causing the employees of the various trucking carriers
to exercise their contractual privilege of declining to handle
Pittsburgh freight . Accordingly , we shall dismiss the complaint.
[The Board dismissed the complaint].
Chairman Herzog took no part in the consideration of the
above Decision and Order.
Intermediate Report
STATEMENT OF THE CASE'
Upon a charge and an amended charge alleging violations of Section 8 (b) (4) (A) filed on
August 6 and September 5, 1952, respectively, by Pittsburgh Plate Glass Company, herein
called the Charging Party or Pittsburgh, the General Counsel of the National Labor Relations
Board, 2 by the Regional Director for the Ninth Region (Cincinnati , Ohio), issued a complaint
dated November 25, 1952, against Chauffeurs , Teamsters , Warehousemen and Helpers Local
Union No . 135, affiliated with International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America , AFL, herein called the Respondent , the Union , or Local
135. The complaint alleged that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (b) (4) (A ) and Section 2 (6)
and (7) of the National Labor Relations Act, 61 Stat. 136 , herein called the Act. Copies of the
complaint , the charges , and a notice of hearing thereon were duly served upon the Respondent
and the Charging Party.
With respect to the unfair labor practices , the complaint alleged that , since on or about
July 1, 1952 , the Union has engaged in, and by order , rules , instructions , directions, and
appeals has induced and encouraged the employees of various enumerated motor carriers to
engage in, strikes or other concerted refusals in the course of their employment to use,
process, transport , or otherwise handle or work on goods , articles , materials , or com-
modities , or to perform services , an object thereof being to force or require said employers
to cease doing business with Pittsburgh.
The Respondent duly filed an answer admitting some of the allegations of the complaint but
denying the commission of any unfair labor practices.
Prior to the hearing in the instant case, the General Counsel instituted a proceeding under
Section 10 (1) of the Act in the United States District Court for the Southern District of
Indiana, Indianapolis Division, seeking an injunction against theRespondent pending a decision
by the Board in the instant case . This application was denied by the district judge for the
reason, inter alia:
I am not at all altogether convinced that there was the direct pressure brought to bear,
or that the evidence shows it by preponderance that there was pressure brought by the
Respondent to cause this secondary boycott. It may have occurred , but this record, I
fear, doesn 't show it . There is abundance of evidence that these men acted upon
their own individual rights....
Pursuant to notice the hearing was held in the instant matter at Indianapolis , Indiana, on
February 19 and 20, 1953, before the undersigned Trial Examiner. The General Counsel,
the Respondent , and Pittsburgh participated in the hearing by counsel and were afforded full
opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence
bearing upon the issues . At the conclusion of the hearing, the undersigned advised the parties
of their rights to file briefs or findings of fact and conclusions of law or both. Briefs were
received from the General Counsel and Pittsburgh on March 13, 1953.
Upon the entire record in the case and from his observation of the witnesses , the under-
signed makes the following:
i This case, originally consolidated for hearing with a case involving the same Union and
Samson Paper Company, was severed therefrom prior to the hearing.
2 The General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the General Counsel and the National Labor Relations Board as the Board
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
L COMMERCE
Pittsburgh Plate Glass Company, during the 12 months ending August 30, 1952, and at all
times material hereto, in the course and conduct of its business is and has been a Pennsylvania
corporation engaged in the manufacture and nationwide distribution and sale of glass , paints,
and related products, maintaining and operating plants, warehouses, and sales offices in
various of the States of the United States, including a warehouse and sales office in Indianapolis,
Indiana, the facility involved herein. It was agreed that during the year just prior to the
times material here, Pittsburgh from its Indianapolis, Indiana, facility had shipped at least
$25,000 worth of merchandise to customers residing in States other than the State of Indiana.
The employers listed herein in Appendix A, attached hereto, are and have been engaged in
the interstate transportation of goods, materials, and other commodities among various
States of the United States, and served as motor common carriers, operating under certificates
of public convenience and necessity issued by the Interstate Commerce Commission.
Pittsburgh and the motor carriers, listed in Appendix A, are engaged in commerce within
the meaning of the Act.
II. THE RESPONDENT
Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
AFL, is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
For several years prior to and including April 30, 1952, Pittsburgh had been a member of
the Building Contractors' Association of Indianapolis, Inc., and a signatory to the labor
agreements negotiated by that Association and Local 716 of the Teamsters' Union. These
agreements covered Pittsburgh's two truckdrivers, Robert Robertson and Henry Carter, both
of whom were members of Local 716. When the existing contract between these parties
expired on April 30, 1952, the parties were deadlocked in the negotiations over the terms of a
new contract which caused Local 716 to go out on strike and to picket the members of the
Association including Pittsburgh.
While the strike was still on and about May 21, 1952, Robertson and Carter resigned from
Local 716 and returned to work for Pittsburgh, whereupon Pittsburgh notified the Association
that it withdrew its authorization to the Association to bargain for and on its behalf.
About June 7, 1952, the Association andLocal716 executed an agreement so that the pickets
were withdrawn from the places of business of the association members except that the
picket line of Local 716 remained at Pittsburgh. The picketing at Pittsburgh was of a somewhat
sporadic nature due to the issuance in various State courts of no less than 2 restraining
orders without notice and 1 temporary injunction applied for and granted at the request of
Pittsburgh Although each of these restraining orders was dissolved upon application, there
was no picketing while the orders were in force Thus, between June 18 to July 2, between
July 15 to 21, and after August 26, there were no picket lines at Pittsburgh due to the afore-
mentioned court orders 8
Pittsburgh continued operations despite the picket line. In the course of these operations it
utilized the services of some, if not all, of the motor freight carriers listed on Appendix A
attached hereto, for receiving as well as delivering merchandise All these carriers
operated under the terms of labor agreements with Local 135 known as the "Indiana Cartage
Agreement" for their dock workers and local drivers and under the "Over-the-Road Agree-
ments " for their distance drivers.
Sin addition to the aforementioned restraining orders and injunction in the State courts,
there has also been a proceeding under Section 10 (1) of the Act, wherein the Board sought,
but was denied, an injunction against Local 135 in the Federal district court, the precursor
of the present action. Besides all the court litigation mentioned above, Pittsburgh filed unfair
labor practice charges against Local 716, and against Local 135 while Local 716 filed a
charge againt Pittsburgh. At the hearing there were threats of other prospective bits of
litigation between the parties. This strike, therefore, has proved to be a "bonanza" for the
legal profession. There would seem already to have been an excess of litigation here.
CHAUFFEURS, TEAMSTERS , WAREHOUSEMEN AND HELPERS 747
Under the heading of the "Protection of Rights" both the "Indiana State Cartage Agree-
ment" and the "Over-the-Road Agreement" contain the following clause:
It shall not be a violation of this contract and it shall not be cause for discharge if any
employee or employees refuse to go through the picket line of a Union or refuse to handle
unfair goods. Nor shall the exercise of any rights permitted by law be a violation of this
contract.
The term "unfair goods" as used in this article includes, but is not limited to, any
goods or equipment transported, interchanged, handled, or used by any carrier, whether
parties of this agreement or not, at whose terminal or terminals or place or places
of business there is a controversy between such carrier or its employees on the one
hand, and a labor Union on the other; and such goods or equipment shall continue to
be "unfair" while being transported, handled or used by interchanging or succeeding
carriers, whether parties to this agreement or not, until such controversy is settled.
The Union agrees that, in the event the employer becomes involved in a controversy
with any other Union, the Union will do all in Its power to help effect a fair settlement.
It is understood that in the event the decision of the National Labor Relations Board
in the Conway case is sustained or prevails on appeal to the higher federal courts, this
article will be renegotiated and rewritten to provide the Union with the maximum of
protection afforded by such decision.4
On a number of occasions these motor carriers sent their drivers, members of Local 135,
to Pittsburgh for the purpose of either making a delivery to, or a pickup of freight from,
Pittsburgh. When there was a picket line at Pittsburgh, many of these drivers refused to
cross this picket line within the course of his employment, except, perhaps, to enter the
premises to telephone his dispatcher to explain that there was a picket line so that he,
the driver, could not make his delivery or pickup and to inquire where he should go next.
Consequently, such driver would return to his employer's freight dock without having de-
livered the freight to Pittsburgh or else without having picked up the freight from Pitts-
burgh. General Counsel specifically agreed at the hearing that such refusals did not amount
to an unfair labor practice.
After the return of its own drivers Robertson and Carter, on or about May 21, Pittsburgh
began attempting to pick up or to deliver its own freight for shipment to the docks of various
carriers. In several instances the dockman of the carriers--who occasionally was also the
union shop steward--refused to deliver or to accept the freight so presented and based his
refusal on the ground that there was a strike or a picket line at Pittsburgh. On a number of
these occasions the terminal manager or the dispatcher would call in the union steward or
the employee responsible in order to find out why the freight was being refused. Most of
the terminal managers acknowledged that, even without this explanation , they recognized
that the strike at Pittsburgh was the reason for the refusal. On each occasion noted in the
record the steward or employee explained the refusal on the ground of the picket line or
of the strike at Pittsburgh. No employer even attempted to discipline its employee for such
action.
In four instances in the record the terminal manager testified that the employee, when re-
quested for an explanation for the refusal, stated that the men had been "instructed" or
"instructed by the Union" not to handle Pittsburgh freight because of the strike at Pittsburgh.
In each of these instances, the steward or the union employee involved denied that the Union had
so instructed him or that he had so informed the terminal manager Also on each of these
occasions the employee further testified that he had personal knowledge of the strike at
Pittsburgh and that it was upon his own individual initiative that he had refused to deliver or
receive the unfair goods.
It should be noted that one of the terminal managers who testified volunteered that it was
well known that Pittsburgh freight was "getting by" at some of the terminals and that
Robertson and Carter, the two Pittsburgh drivers, also acknowledged that they had had
trouble in making deliveries or pickups during the strike period on only a few occasions
and at only a few docks. This testimony would appear to confirm the claim of the Union
that it had not instructed its stewards and members to refuse to handle Pittsburgh freight
but that that refusal remained at the option of the individual workman himself. There is,
in this record, no evidence that the Union, any union agent, or steward ordered or instructed,
etc., any other employee to refuse to handle Pittsburgh freight.
4The last paragraph in the "Indiana State Cartage Agreement" has a slightly different
phraseology.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the strike , certain terminal managers did telephone to union headquarters to
determine if the Pittsburgh strike was still on or else why its own dockmen were refusing
to handle Pittsburgh freight in each of these few instances where the manager testified
that he had been then informed that the Union had "instructed" its men not to handle Pitts-
burgh freight on account of the strike, the union official who allegedly gave such information
was one James Miller, since deceased. Of course it would be no unfair labor practice for
Miller, or any other union official, to have requested the carrier itself not to handle Pitts-
burgh freight as the Act only makes it illegal for a union to instruct , order , etc., employees
- not the employer - to refuse to handle the freight. There is not one single instance in this
record where any living business agent of the Union was alleged to have given any such
information to the terminal manager or instruction to the employees. Under such circum-
stances it is only natural that the testimony regarding Miller should be looked upon with
some skepticism. The undersigned does not believe that this testimony, even assuming it
to have been true, shows a violation of Section 8 (b) (4) (A) of the Act.
The undersigned is inclined to agree with the conclusion reached by the Federal district
court judge, who heard the application for the injunction at which time most, if not all, of
the witnesses who appeared in the instant case also testified, that the evidence failed to
prove that either the Union or its agents ordered, instructed, etc , any employee to refuse
to handle Pittsburgh freight. So far as the present record shows, the refusal to handle
Pittsburgh freight appears to have been the determination of the individual workman himself,
acting without orders or instructions etc., from Local 135, and so no violation of Section
8 (b) (4) (A) occurred.
In addition to the lack of inducement or encouragement of employees by the Union, Local
135 relies upon the "unfair goods" section of the', Protection of Rights" clause supra in
the contracts with the motor carriers here involved as a defense to the present complaint
The question arises as to whether the "unfair goods" clause amounts to a "hot cargo" or
"struck goods" clause such as the Board and the court found to be a defense to similar
refusals in the Conway Express case.6 Although the contracts here are in somewhat different
phraseology than in the Conway case, the obvious intent of the contract language, as well as the
interpretation placed upon that language by the carriers themselves during this period , prove,
contrary to the contention of the General Counsel in his brief, that the words " unfair goods"
applied to goods from any struck plant , the traditional meaning of the phrase used . General
Counsel attempted to limit the application of' unfair goods" to those being handled by a struck
carrier basing this contention on the illustration contained in the second paragraph of the
clause involved But this attempted limitation eliminates the carefully added phrase "but not
limited to" found in that same second paragraphwhere the contract speaks of struck carriers.
Thus it is obvious that "unfair goods" in the contract include goods of any struck employer and
not exclusively those being handled by a struck carrier. So although the phraseology of the
contracts at issue here differ somewhat from the Conway contracts, these also are "hot
cargo" or "struck goods" contracts.
The Conway decisions hold such contracts to constitute a defense to charges of violations
of Section 8 (b) (4) (A) when negotiated prior to the refusals and when acquiesced in by both
parties. Both these conditions are satisfied here. Although the General Counsel refers to
several terminal managers as being "most unhappy" about the refusals thus apparently
implying a lack of acquiescence on their part, this implication is not justified because (1)
these terminal managers recognized the right of the Union and of the employees under the
contract to refuse to handle Pittsburgh freight by failing to object to the refusals or even
attempting to discipline those who had refused freight, and (2) because actually this "un-
happiness" of the terminal managers stemmed from the knowledge that Pittsburgh's freight
was "getting by" at terminals other than their own.
Thus the instant case falls squarely within the rule of the Conway case where the Board
held.
This section [8 (b) (4) (A)] does not proscribe other means by which unions may induce
employers to aid them in effectuating secondary boycotts, much less does it prohibit
employers from refusing to deal with other persons, whether because they desire to
assist a labor organization in the protection of its working standards, or for any other
reason An employer remains free, under that section of the amended Act, as always,
to deal with whatever firms, union or nonunion, he chooses And by the same token,
there is nothing in the express provisions or underlying policy of Section 8 (b) (4) (A)
which prohibits an employer and a union from voluntarily including "hot cargo" or
587 NLRB 972: affirmed 195 F. 2d 906 (C. A. 2).
WESTERN FISHING LINES CO. 749
"struck work" provisions in their collective bargaining contracts, or from honoring
these provisions. That is all that happened in this case. We therefore find that the
Respondent did not violate Section 8 (b) (4) (A) of the Act by causing employees of
Palmer Lines, Central Warehouse, and Oppenheimer & McEwan to exercise their con-
tractual privilege of declining to handle Conway freight. [Footnotes omitted.]
This holding, affirmed in the circuit court of appeals, is equally applicable here.
Therefore, as the undersigned has found that the Union did not induce or encourage the
employees and further than the "unfair goods" clause also provides the Union here with a
defense to a charge of violating Section 8 (b) (4) (A), he will recommend that this complaint
be dismissed. 6
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAW
1. Pittsburgh Plate Glass Company is, and the motor freight carriers listed in Appendix
A attached hereto are, engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Chauffeurs, Teamsters; Warehousemen and Helpers Local Union No. 135, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. The aforesaid Local 135 has not engaged in unfair labor practices within the meaning
of the Act.
[Recommendations omitted from publication.]
6 Local 135 introduced evidence at the hearing to the effect that, when Pittsburgh and Local
716 settled their difficulty in September 1952 resulting in the withdrawal of the picket line
with the acceptance of the association contract by Pittsburgh, all cases between Pittsburgh
and the Union Locals were supposed to be settled or withdrawn. In view of the undersigned's
findings on the merits, he sees no necessity for passing upon this contention of Local 135.
APPENDIX A
1. Allen Truck Lines 12. Interstate Motor Freight System
2. Anderson Freight Lines 13. Keeshin Motor Express Company
3. B. B. & L Motor Freight, Inc. 14, Lucas Motor Express, Inc.
4. Bowser Truck Lines, Inc. 15. Marion Trucking Company
5. Clemans Truck Lines, Inc. 16. Mid-States Freight Line
6. Commercial Motor Freight Lines, Inc. 17. Motor Express, Inc.
7. C. & D. Motor Delivery 18. McDaniel Freight Lines, Inc.
8. Eastern Motor Freight Company 19. National Carloading
9. Hayes Freight Lines 20. Security Cartage Company
10. I. R. C. & D. Motor Freight, Inc. 21. Tarbet Trucking Company
11. Indianapolis & Southern Motor Express, Inc.
WESTERN LACE AND LINE CO., d/b/a WESTERN FISHING
LINES CO. and TEXTILE WORKERS UNION OF AMERICA,
CIO. Case No. 21-CA-1504. June 25, 1953
DECISION AND ORDER
Upon a charge duly filed on August 25, 1952, and an amended
charge duly filed on September 3, 1952,bythe Textile Workers
Union of America, CIO, herein called the Union, the General
Counsel of the National Labor Relations Board, herein called
the General Counsel, by the Regional Director for the Twenty-
105 NLRB No. 114.