Drivers, Chauffeurs & Helpers Local No. 639

National Labor Relations Board - Board Decisions

Apr 17, 1958

120 N.L.R.B. 486 (N.L.R.B. 1958)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director's recommendation that Garrett's ballot be found invalid and,
not be counted.4
The Employer also objected to the Board agent's failure-to count a
ballot which had a four-letter expletive written in the lower right-
hand section of the ballot which contained space for a "NO" vote.
The expletive was clearly written adjacent to the voter's mark in the
"NO" box, and in no way touched that section of the ballot containing
a "YES" box. The Regional Director recommended that the ballot
be counted because the marking on the ballot served only to indicate
the voter's intent. The Petitioner excepted to his recommendation. on
the grounds that the vulgarity and obscenity of the word constituted
an abuse of the Board's processes. Because the word written close to
a mark in the "NO" box only emphasized the voter' s intent to cast a
"NO" ballot, we find, under all the circumstances, that the ballot is
valid. Accordingly, we direct that it be counted as a vote against
the Petitioner and be included in the official tally .5
We accordingly adopt the Regional Director' s recommendations and
sustain the Employer's objections. As it now appears that the Peti-
tioner did not receive a majority of the votes cast, we shall certify the
results of the election.
[The Board certified that a majority of the valid votes was not cast
for United Steelworkers of America, AFL-CIO, and that said labor
organization is not the exclusive representative of the employees in
the unit found appropriate.]
4 The Petitioner also contends that the Employer 's objection to the "Garrett" ballot
constitutes a postelection challenge and is thus invalid. See Flight Enterprises, Inc., 119
NLRB 1442 . In this connection , the Petitioner, though noting that the Employer
objected to the counting of the ballot before the official tally of ballots was signed , asserts
that the Employer's observer failed to object to the counting of the ballot until it was
apparent that the ballot could affect the outcome of the election . We find no merit in the
Petitioner 's contention . We are here passing on the validity of a ballot and not on a
challenge to the eligibility of the person casting the ballot; the question of the validity
of a ballot may properly be raised by a timely objection after the count and is not con-
sidered a postelection challenge. F. J. Stokes Corporation, 117 NLRB 951, 954..
5 F. J. Stokes Corporation, supra, at 954.
Drivers, Chauffeurs & Helpers Local No. 639, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen & Helpers of
America and Dixie Janitor Supply Co., Inc. Case No. 5-CCU-87.
April 17,1958
DECISION AND ORDER
On December 11, 1957, Trial Examiner Lee J. Best 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
120 NLRB No. 54.
DRIVERS, CHAUFFEURS & HELPERS LOCAL NO. 639 487
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed excep-
tions to the 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 [Chairman Leedom and Members
Rodgers and Bean].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in the case
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10, (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Drivers, Chauf-
feurs & Helpers Local No. 639, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, its officers,
agents, successors, and assigns shall :
1. Cease and desist from engaging in or inducing and encouraging
the employees of The Evening and Sunday Star Newspaper Company,
Annapolis Hotel, Midtown Parking Center, Kessler International
Corporation, Latt's Tie Bar, Electroreporter, E. C. Echles, Metropoli-
tan Theater, Davidson Transfer & Storage Company, or any other
employer in the District of Columbia area, to engage in a strike or
concerted refusal in the course of their employment to use, manu-
facture, process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities or to perform any services, where
an object thereof is to force or require any such employer or other
person to cease using, handling, transporting, or otherwise dealing
in the products of or to cease doing business with Dixie Janitor Supply
1 The Board has carefully considered the decisions of the United States Court of Appeals,
District of Columbia , in Sales Drivers etc. (Campbell Coal Company ) v. N. L R B., 229
F 2d 514 , and General Drivers etc . ( American Iron it Machine Works) v. N. L. R. B.,
247 F. 2d 71. As to Respondent ' s ambulatory picketing , under the circumstances , the only
reasonable inference that can be drawn from the picketing of secondary employer business
locations is that the activity which was ostensibly directed at the primary employer's
employees was, in fact , directed at the employees of the secondary employers . Accordingly,
we find that an object of Respondent 's ambulatory picketing was to force secondary em-
ployers to cease doing business with Dixie Janitor Supply Co., Inc Such conduct is
within the purview of Section 8 ( b) (4) (A). Southwestern Motor Transport, Inc., 115
NLRB 981, 984. See also N . L. R. B. v. Associated Musicians, Local 802, AFL ( Gotham
Broadcasting Corp. ), 226 F. 2d 900 ( C. A. 2) ; W. H. Arthur Company, 115 NLRB 1137,
1138; Ready Mixed Concrete Company , 116 NLRB 461; Ready Mixed Concrete Company,
117 NLRB 1266 , 1267. As to the Board 's finding of violation of Section 8 (b) (4) (A)
with respect to Respondent 's activity at Davidson Transfer & Storage Company , the hot
cargo agreement does not constitute a defense to Respondent . Genuine Parts Company,
119 NLRBB 399; N. L. R B. v. Local 1976, United Brotherhood of Carpenters, etc.
( Sand Door it Plywood Co.), 241 F. 2d 147 ( C. A. 9).
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., Inc., or any other person or company having business relations
with such employers in the District of Columbia area.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify in writing The Evening and Sunday Star Newspaper
Company, Annapolis Hotel, Midtown Parking Center, Kessler Inter-
national Corporation, Latt's Tie Bar, Electroreporter, E. C Echles,
Metropolitan Theater, and Davidson Transfer & Storage Company,
all of Washington, D. C., that it will not induce or encourage their
employees to engage in a strike or concerted refusal in the course of
their employment to use, process, transport, or otherwise handle or
work on any goods, articles, materials, or commodities, or to perform
services for their respective employers, where an object thereof is to
force or require any such employer to cease doing business with Dixie
Janitor Supply Co., Inc., or any other company or person with whom
they have business relations in the District, of Columbia area.
(b) Post in conspicuous places at its business offices and meeting
places, including all places where notices to its members are custom-
arily posted, signed copies of the notice marked "Appendix," which
is attached to the Intermediate Report 2 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by an official representative of the Respondent, be
posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of sixty (60) consecutive days there-
after. Reasonable steps shall be taken by Respondent to insure that
said notice is not altered, defaced, or covered by any other material.
(c) Immediately upon receipt thereof, and at its own expense,
cause a copy of said notice to be printed in a daily newspaper of
general circulation published in the District of Columbia.
(d) Mail to the Regional Director for the Fifth Region, Baltimore,
Maryland, signed copies of said notice for posting at the premises of
The Evening and Sunday Star Newspaper Company, Annapolis
Hotel, Midtown Parking Center, Kessler International Corporation,
Latt's Tie Bar, Electroreporter, E. C. Echles, Metropolitan Theater,
Davidson Transfer & Storage Company, and other employers in the
District of Columbia area employing members of Respondent, if
willing, in places where notices to their employees are customarily
posted.
(e) Notify, in writing, the Regional Director for the Fifth Region
(Baltimore, Maryland), within ten (10) days from the date of this
Order, what steps Respondent has taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendation of a
Trial Examiner" the words "A Decision and Order ." In the event that this Order is en-
forced 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." This notice shall be further amended by
deleting "AFL-CIO" from the name of the Union.
DRIVERS, CHAUFFEURS & HELPERS LOCAL NO. 639 489
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings authorized by and conducted pursuant to Section 10 of the
Labor Management Relations Act, 1947 (61 Stat. 136), herein called the Act, were
initiated by the filing of a charge on August 1, 1957, and an amended charge on
September 4, 1957, by Dixie Janitor Supply Co., Inc., herein called Dixie, against
Drivers, Chauffeurs & Helpers Local No. 639, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, herein
called Respondent or Respondent Union. Based upon the charges duly filed, the
General Counsel of the National Labor Relations Board, herein separately designated
as General Counsel and the Board, issued a complaint alleging that Respondent
Union has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (b) (4) (A) of the Act, affecting commerce within the meaning of
Section 2 (6) and (7) of the Act.
More specifically the complaint, as amended, alleges in substance that Respondent
Union by unlawful picketing and other means, including orders, instructions, appeals,
and distribution of literature, has (1) since on or about July 31, 1957, induced and
encouraged employees of The Evening and Sunday Star Newspaper Company,
Annapolis Hotel, Midtown Parking Center, Kessler International Corporation, Latt's
Tie Bar, Electroreporter, E. C. Echles, Metropolitan Theater, and (2) since on or
about October 10, 1957, induced and encouraged, the employees of Davidson
Transfer & Storage Company (a common carrier), to engage in strikes or concerted
refusals in the course of their employment to use, transport, or otherwise handle or
work on goods, articles, materials, or commodities, or to perform services for their
respective employers, where an object of such acts and conduct has been and is to
force or require said employers to cease using, handling, transporting, or otherwise
dealing in the products of and cease doing business with Dixie Janitor Supply Co.,
Inc. Respondent Union filed an answer admitting the jurisdictional allegations of
the complaint, but denied all allegations of unfair labor practices.
Copies of the charges, complaint, answer, and other process, including notice of
hearing, were duly served upon all parties in interest. Pursuant to notice, a hearing
was conducted at Washington, D. C., on October 30, 1957, before the Trial
Examiner duly designated by the Chief Trial Examiner. All parties were present
and represented by counsel. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce testimony and other evidence
pertinent to the issues involved, to argue orally upon the record, and within a fixed
time from the close of the hearing to file written briefs and proposed findings and
conclusions. All briefs thereafter filed by counsel for the General Counsel and
the Respondent Union have been given due consideration.
Upon the entire record in the case, and from observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. BUSINESS OF THE EMPLOYER
Dixie Janitor Supply Co., Inc., is a corporation organized and existing by virtue
of the laws of the State of Maryland, having its place of business and warehouse at
210 Massachusetts Avenue NW., in the city of Washington, D. C., where it is
engaged within the District of Columbia in the sale and distribution of janitor
supplies, which are purchased and shipped thereto in substantial quantities from other
States. I find, therefore, that Dixie is engaged in commerce or affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
The Evening and Sunday Star Newspaper Company, Annapolis Hotel, Midtown
Parking Center, Kessler International Corporation, Latt's Tie Bar, Electroreporter,
E. C. Echles, and Metropolitan Theater are employers located in the District of
Columbia, and purchase supplies from Dixie Janitor Supply Co., Inc.
Davidson Transfer & Storage Company is a common interstate carrier of freight
for the general public by trucks, having an office and terminal facilities at 1250
Upshur Street NW., in the city of Washington, D. C.
II. THE RESPONDENT LABOR ORGANIZATION
Drivers, Chauffeurs & Helpers Local No. 639, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
-490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Ambulatory picketing (July 31, 1957)
Since on or about July 26, 1957, Respondent Union has been engaged in a labor
dispute with Dixie Janitor Supply Co., Inc., and is maintaining a picket line at the
business site of that Company at 210 Massachusetts Avenue NW., in Washington,
D. C. All regular drivers of Dixie are on strike. By reason thereof, Supervisor
Eugene F. Caputo accompanied by a helper made deliveries by truck to customers
in downtown Washington on the afternoon of July 31, 1957. In the course of said
deliveries, Julius C. Randolph (business agent), accompanied by one of the strikers
(Wilson), in a lavender colored Cadillac automobile followed the Dixie truck and
parked closely behind it at each stop on the delivery route. At each stop Wilson
patrolled as a picket alongside the Dixie truck with a sign bearing the following
inscription:
DIXIE JANITOR SUPPLY CO., INC.
ON STRIKE
LOCAL UNION 639
DRIVERS
CHAUFFEURS
and HELPERS
AFL-CIO
The Dixie truck stopped first near the middle of 11th Street NW., opposite the
freight entrance of the building of The Evening and Sunday Star Newspaper Com-
pany. By reason of newspaper trucks, with driver employees at the wheel, parked
perpendicular to the curb facing into the street for loading from the rear, Supervisor
Caputo double-parked his truck in the street immediately in front of the newspaper
trucks under the direct observation of The Evening Star employees.' Similar
picketing procedure occurred when the Dixie truck stopped to make deliveries of
supplies at Annapolis Hotel on 12th Street NW., Latt's Tie Bar on 14th Street NW.,2
Midtown Garage on L Street NW., E. C. Echles on K Street NW, Electroreporter
on Pennsylvania Avenue NW., Kessler International on P Street NW., and several
other customer business locations. In no instance did the picket follow the employee
of Dixie making deliveries to the customer, solicit the customer not to buy Dixie
products, speak to any employees of the customer, or leave the immediate vicinity
of the Dixie truck. In each instance the deliveries were completed without causing
any work stoppage or refusal to handle the products of Dixie Janitor Supply Co., Inc.
B. The events of October 10, 1957
The current collective-bargaining agreement between Respondent and Davidson
Transfer & Storage Company contains a union-security clause (article I) requiring
membership in the Union as a condition of employment, and also a so-called "hot
cargo" clause (article III), as follows:
PROTECTION OF RIGHTS
It shall not be a violation of this agreement and it shall not be cause for
discharge if any employee or employees refuse to go through the picket line
of a Union or refuse to handle unfair goods. Nor shall the exercise of any
rights, permitted by law be a violation of this agreement. The Union and its
members, individually and collectively, reserve the right to refuse to handle
goods from or to any firm or truck which is engaged or involved in any con-
troversy with this or any other Union; and reserve the right to refuse to accept
freight from, or to make pickups from, or deliveries to establishments where
picket lines, strikes, walkouts or lockouts exist. 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 party to
this Agreement or not, at any of whose terminals or places of business where
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 con-
tinue to be "unfair" while being transported, handled, or used by interchanging
' I credit the testimony of Eugene F. Caputo that he saw the picket with sign alongside
his truck at The Evening Star stop ; and Respondent Union admits picketing at all other
stops that afternoon
s At Latt's Tie Bar an employee salesman observed the picketing of Dixie's truck along
the curb in front of the store.
DRIVERS, CHAUFFEURS & HELPERS LOCAL NO. 639 491
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.
The Union shall give the Employer notices of all strikes and/or the intent
of the Union to call a strike of any Employer and/or place of business , and/or
intent of the members to refuse to handle unfair goods. The Carriers will be
given an opportunity to deliver any and all freight in their physical possession
at the time of the receipt of notice . Any freight received by a carrier up to
midnight of the day of notification shall be considered to be in his physical
possession . However, freight in the possession of the connecting carrier shall
not be considered to be in the physical possession of the delivering carrier.
The insistence on the part of any Employer that his employee handle unfair
goods or go through a picket line after they have elected not to, and if such
refusal has been approved in writing by the responsible officials of the Eastern
Conference of Teamsters , shall be sufficient cause for an immediate strike of
all such Employer 's operations without any need of the Union to go through
the grievance procedure herein.
During the month of September 1957, Business Agent James N. Mills verbally
complained to Terminal Manager Leo Brandenburg that Davidson Transfer & Storage
Company should not handle freight for Dixie Janitor Supply Co., Inc., pending
the labor dispute with Dixie. On October 1, 1957, Mills personally delivered to
Brandenburg written notice of the labor dispute with Dixie, requesting cooperation
with the Union . Thereupon , Brandenburg notified Dixie that his drivers would not
cross the picket line to load and unload freight, but that Dixie would be permitted
to pick up its own freight at the terminal . At approximately 2 p. in. on October
10, 1957, pickets followed two Dixie trucks to the Davidson terminal, and estab-
lished a picket line along the sidewalk at entrances to the yard on both Upshur
and Taylor Streets NW. The pickets patrolled with above-described signs until
Dixie employees finished loading their freight and drove away from the platform.
None of Davidson 's employees assisted in loading freight on the Dixie trucks, but
were at the time otherwise observably engaged in handling miscellaneous freight
on the opposite side of the dock. While this picketing was in progress , Business
Agent James N. Mills came upon the premises and told Terminal Manager Branden-
burg that he was not cooperating with the Union by allowing Dixie to obtain their
freight. Brandenburg told Mills that he had no legal right to stop Dixie or any
other company from getting freight because of a dispute with the Union. Mills
also talked to Davidson employees at work on the platform and 4 of them stopped
work for approximately 20 minutes until loading of the Dixie trucks was completed
and they were preparing to leave; but Edward W. Zimerly, Jr. (a checker) kept on
working. Observing that Mills was engaged in argument with Zimerly, the terminal
manager walked out on the platform near enough to hear part of their conversation.
Mills asked Zimerly why he kept on working , and Zimerly replied : "Because I
want to work. You didn't order us to stop. You told us we didn't have to work
while the pickets were there."
. Edward W. Zimerly, Jr., credibly testified in substance that : He has been em-
ployed by Davidson as a freight checker more than 3 years; he is a member of Local
,639, Teamsters Union; on the afternoon of October 9, 1957, some of his fellow
union workers told him they were not handling Dixie Janitor freight anymore;
and Mr. Brandenburg told him that he would not require them to handle it, but
Dixie would send their own men there to load it . Thereafter , at approximately
2 p. in. on October 10, 1957, 2 Dixie trucks were driven up to the platform opposite
the, side where he with 4 helpers was unloading inbound miscellaneous freight.
Shortly thereafter , Business Agent Mills came to his place of work and said: "You
fellows don't have to work while the Dixie Janitor men are here loading their
trucks." His four helpers stopped working, and he himself paused for a minute or
two but resumed the unloading of freight . Approximately 5 minutes later Business
Agent Mills inquired why he was working and he replied : "Because I want to work."
Then Mills asked for his union identification card and receipt for union dues, and
also checked the identification cards of the four men who had stopped working.
He said to Mills: "You told us we didn't have to work if we didn't want to. I
want to work ." Shortly thereafter Mills said to Zimerly: "I already sent a letter
for you to appear in front of the Executive Board." 3
3 In the testimony of James N . Mills I find no substantially credible denial of the facts
testified to by Edward W Zimerly , Jr., and Leo Brandenburg.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
Since on or about July 26, 1957, Respondent Union has continuously picketed
Dixie's fixed place of business at 210 Massachusetts Avenue in Washington, D. C.,
where all employees are exposed to any message sought to be conveyed by the
picketing. Dixie has no fixed place of business elsewhere in the area. On July
31, 1957, Respondent Union extended its appeal to the employees of neutral employers
by following a Dixie truck to the various business establishments in downtown
Washington named in the complaint. The truck was operated by a supervisor with
one helper assisting him in making deliveries of cleaning materials to customers of
Dixie. At each stop a business agent of Respondent Union posted a single picket,
who patrolled alongside the truck on the street or sidewalk next to the building
entrances through which deliveries were made, bearing an "on strike" sign identical
with that carried by pickets at the Dixie offices and warehouse on Massachusetts
Avenue. In some instances employees of the neutral employers observed the picket-
ing, but took no action about it. The time spent by truck and picket at each stop
was very short.
In the absence of testimony or circumstances tending to show otherwise, I am
constrained to find that such picketing was calculated and designed to induce and
encourage the employees of secondary employers to engage in a concerted refusal
to use, process, transport, or otherwise handle the products of Dixie Janitor Supply
Co., Inc., thereby forcing or requiring their respective employers to cease doing
business with Dixie. Under the peculiar circumstances of this case, it is difficult
to visualize any other objective worthwhile or desirable from the standpoint of the
Union. Since the primary employer here has a permanent place of business which
can and is being effectively picketed, and since none of its employees are steadily
employed at a common site with neutral employees, I find that the "ambulatory situs"
doctrine enunciated in Moore Dry Dock Company, 92 NLRB 547, does not apply.
Both the Board and the courts have found it increasingly difficult to balance the
rights of labor organizations under Sections 7 and 13 of the Act with the protection
afforded neutral employers by Section 8 (b) (4) (A). Whether or not the strike
activities of a labor organization violate that section must be determined from
a consideration of the peculiar facts and circumstances of each case, bearing in mind
that the ultimate test of violation is an unlawful objective prohibited by the statute.
When the primary employer has a fixed place of business in the area of the labor
dispute which can be and in fact is being picketed to the extent that all his employees
are exposed for a substantial part of their working day to any message sought to
be conveyed by the picketing, the labor organization cannot in good faith extend
the picketing to the premises of a neutral employer without revealing the unlawful
objective of inducing and encouraging the employees of the latter to participate in
the strike activities. In the absence of testimony or circumstances indicating other-
wise, an unlawful objective is apparent or may be found by reasonable inference.
The Board has recently held that such picketing of a neutral employer to induce
and encourage his employees to engage in strike activities is violative per se of
Section 8 (b) (4) (A) of the Act 4 I am, therefore, constrained to find under the
peculiar circumstances of this case that by extending its picket line on July 31, 1957,
from the fixed premises of Dixie Janitor Supply Co., Inc. (primary employer) to
the premises of neutral employers named in the complaint, thereby inducing and
encouraging employees of said neutral employers to participate in strike activities,
where an object was to force or require their respective neutral employers to cease
doing business with Dixie, the Respondent Union engaged in unfair labor practices
within the meaning of Section 8 (b) (4) (A) of the Act. In so finding, I rely upon
the entire record and all of the particular circumstances of the case, rather than any
rigid rule that such picketing is unlawful per se. To hold otherwise in this case
would effectively neutralize the protection provided by Congress in Section 8 (b)
(4) (A) for employers not engaged in the current labor dispute.
By reason of the so-called "hot cargo" clause in its current contract with Davidson
Transfer & Storage Company, the Respondent Union in September 1957 demanded
' International Brotherhood of Teamsters , etc. (Ready Mimed Concrete Company), 117
NLRB 1266 (1957 ) ; International Brotherhood of Teamsters , etc. (Ready Mixed Concrete
Company ), 116 NLRB 461 (1956 ) ; Washington Coca Cola Bottling Works, Inc., 107
NLRB 299, enfd. 220 F. 2d 380 (C. A., D. C.).
DRIVERS, CHAUFFEURS & HELPERS LOCAL NO. 639 493
that Davidson cease handling freight for Dixie Janitor Supply Co., Inc. Anticipating
a refusal of its employees to make deliveries across the picket hne at 210 Massachu-
setts Avenue , Davidson notified Dixie to pick up its freight at the terminal. On
October 10, 1957, the pickets of Respondent Union followed Dixie trucks and
patrolled the sidewalks at all entrances to the terminal while the trucks were being
loaded by Dixie 's own employees . Signs carried by these pickets were the same as
those displayed at the site of the labor dispute on Massachusetts Avenue. None
of Davidson 's employees assisted in loading the Dixie freight, but continued to
handle miscellaneous freight for other shippers on the opposite side of the dock.
Before the loading was completed , Business Agent James N. Mills came upon the
terminal premises , complained to Terminal Manager Leo Brandenburg that he was
not cooperating with the Union , and also talked to Davidson employees at work
on the platform . As a result of these conversations , four Davidson employees
stopped work until the Dixie trucks left the premises . Edward W . Zimerly, Jr.
(freight checker ) paused temporarily , but then continued to perform the duties in
which he was engaged . When he resumed his duties , Mills inquired why he was
working, and required Zimerly to show his identification card and receipt for
union dues . Mills also told Zimerly that he had sent a letter requiring him to
appear before the executive board . Mills; himself contends that he was merely
making a routine check to ascertain whether the Davidson employees had paid
up their union dues and whether they were living up to the union -security clause
of the contract.
Respondent Union contends that neither the picketing of the Davidson terminal
nor the conduct of Business Agent Mills inducing and encouraging employees to
stop work was a violation of Section 8 (b) (4) (A ) of the Act. As a further defense
it pleads the "hot cargo" clause of the contract , supra, in the event of a finding that
such conduct was otherwise unlawful.
In the case of Truck Drivers and Helpers Local Union No. 728 etc . ( Genuine
Parts Company ), 119 NLRB 399 ( November 1957 ), the identical "hot cargo"
clause now in issue was held by the Board , at least where common carriers for hire
are involved , as invalid from its inception and can be given no operative cognizance
so far as the administration of the Act is concerned . It follows, therefore, that
unless and until the decision of the Board be overruled by the Supreme Court,
Respondent Union cannot invoke such provisions of its contract with common
carriers as a defense to unfair labor practices within the meaning of Section 8 (b)
(4) (A) of the Act.
I find , therefore , under the principles already set forth herein and the Washington
Coca Cola rule, supra, that Respondent Union on October 10, 1957, engaged in an
unfair labor practice violative of Section 8 (b) (4) (A ) of the Act by picketing
the terminal of Davidson Transfer and Storage Company (a common carrier) and
inducing and encouraging the employees of said neutral employer to engage in a
concerted refusal in the course of their employment to perform services , where an
object thereof was and is to force and require that neutral employer to cease handling,
transporting , or otherwise dealing in the products and freight of and to cease doing
business with Dixie Janitor Supply Co., Inc.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Union set forth in section III, above , occurring in con-
nection with the operations of the employers set forth in section I, above, have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent Union engaged in and is engaging in activities vio-
lative of Section 8 (b) (4) (A ) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the policies
of the Act. Because of the extensive scope and range of the Respondent 's unlawful
activities here, I find it necessary, in order to effectuate the policies of the Act, to
issue an order broad enough to enjoin the recurrence throughout the District of Co-
lumbia area of the conduct found to be unlawful in this case . I shall recommend,
therefore , that Respondent Union , at its own expense , publish a copy of the notice
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto as "Appendix" in a daily newspaper of general circulation in the-
District of Columbia s
Upon the basis of the foregoing findings of fact and upon the entire record in,
the case, I make the following:
CONCLUSIONS OF LAW
1. Dixie Janitor Supply Co., Inc., Davidson Transfer & Storage Company (an inter-
state common carrier of freight), The Evening and Sunday Star Newspaper Company,
and other employers named in the complaint are engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. Drivers, Chauffeurs & Helpers Local No. 639, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. By engaging in, and by inducing and encouraging employees of The Evening
and Sunday Star Newspaper Company, Annapolis Hotel, Midtown Parking Center,
Kessler International Corporation, Latt's Tie Bar, Electroreporter, E. C. Echles,
Metropolitan Theater, and Davidson Transfer & Storage Company (a common
carrier), employing members of Respondent Union in the District of Columbia, to
engage in a strike or concerted refusal in the course of their employment to handle
the products and freight of Dixie Janitor Supply Co., Inc., Washington, D. C., where
an object thereof was to force or require such employers to cease doing business with
Dixie Janitor Supply Co., Inc., the Respondent Union has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (b) (4) (A) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
5 See Truck D,svers and Helpers Local Union No. 728 (Genuine Parts Company), 119
NLRB 399, and cases cited therein, wheie similar requirements were made by the Board.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations:
Act, as amended, we hereby notify our members that:
WE WILL NOT engage in or encourage the employees of The Evening and Sun-
day Star Newspaper Company, Annapolis Hotel, Midtown Parking Center,
Kessler International Corporation, Latt's Tie Bar, Electroreporter, E. C. Echles.
Metropolitan Theater, Davidson Transfer & Storage Company, or any other
employer in the District of Columbia area to engage in a strike or concerted re-
fusal in the course of their employment to use, process, transport, or otherwise
handle or work on any goods , articles, materials , or commodities or to perform
any services for their respective employers, where an object thereof is to force or
require any such employer to cease doing business with Dixie Janitor Supply Co..
Inc., or any like company or person having business relations with aforesaid
employers in the District of Columbia area.
DRIVERS, CHAUFFEURS & HELPERS LOCAL
No. 639, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA,
AFL-CIO,
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.