International Brotherhood of Teamster, Chauffeurs, Warehousemen and Helpers of America

National Labor Relations Board - Board Decisions

Dec 22, 1952

101 N.L.R.B. 1284 (N.L.R.B. 1952)

1284 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD
CHAUFFEURS, TEAMSTERS , WAREHOUSEMEN AND HELPERS LOCAL UNION
No. 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA , AFL and IRvIN J. COOPER,
X. W. TOOMBS, ET AL . Case No. 35-CC-14. December °02, 1952
Decision and Order
On August 11, 1952, Trial Examiner Ralph Winkler issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
-practices in violation of Section 8 (b) (4) (A) of the National Labor
Relations Act and recommending that the Respondent cease and de-
sist therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report, the Respondent's
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following addition and exception.
1. We agree with the Trial Examiner that the Respondent had a
labor dispute with the Suppliers involved in this proceeding and that
the Respondent induced and encouraged the employees of the Car-
riers involved in this proceeding to engage in a strike or a concerted
refusal in the course of their employment to handle material and
to perform services at the premises of the Carriers, an object of
which was to force or require the Carriers to cease doing business
with the Suppliers, in violation of Section 8 (b) (4) (A). Moreover,
we find for the reasons enunciated in the Board's recent decision in
Sound Shingle Co., 101 NLRB 1159, that, even in the absence of a
specific labor dispute with the Suppliers, the Respondent's conduct
in this case constituted a type of secondary boycott violative of Sec-
tion 8 (b) (4) (A) of the Act.
2. In reaching our decision, we do not rely on the Trial Examiner's
interpretation of the definition of a strike contained in Section 501
(2) of Title V of the Act.
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
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and,
ilembers Styles and Peterson].
101 NLRB No. 215.
CHAUFFEURS, TEAMSTERS, ETC., LOCAL UNION NO. 135 1285
Relations Board hereby orders that the Respondent, Chauffeurs,
Teamsters, Warehousemen and Helpers Local Union No. 135, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, AFL, and its officers, representatives, and agents
shall :
1. Cease and desist from inducing and encouraging the employees
of the Carriers listed in Appendix A hereof, or of any other employer,
to engage in a strike or a concerted refusal in the course of their em-
ployment to use, manufacture, process, transport, or otherwise handle
or work on goods, articles, materials, or commodities, or to perform
any services, where an object thereof is to require any such employer
or person to cease using, selling, handling, transporting, or otherwise
dealing in the products of or to cease doing business with any other
person, except insofar as any such action is permitted under Section
8 (b) (4) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its business office in Indianapolis, Indiana, copies of the
notice attached hereto as Appendix B 2 Copies of said notice, to be
furnished by the Regional Director for the Ninth 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 thereafter,
in conspicuous places, including all places where notices to members
of Respondent are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material. The Respondent shall also
sign copies of the notice which the Regional Director shall submit
for posting at the Indianapolis premises of the Carriers listed in
Appendix A.
(b) Notify its members, through their respective stewards, business
agents, or officials, that the Respondent withdraws all instructions,
requests, or appeals that such members (1) refrain from receiving
from, delivering to, or otherwise handling merchandise with, em-
ployees of nonunion Supply firms or other such employees or persons
at the Indianapolis Carriers' premises; and (2) prevent or otherwise
interrupt such Supply firms or other employees or persons in servicing
and performing other operations on equipment of these Carriers at
the Carriers' premises.
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of Appeal,
-there shall be substituted for the words "Pursuant to a Decision and Order " the words
"'Pursuant to a Iâeeree of the United States Court of Appeals , Enforcing an Order."
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
Adkins Transfer Co., Inc.
Anderson Motors Service, Inc.
Best Motor Lines
C & D Motor Delivery Co.
Chicago Express, Inc.
Clemans Truck Line, Inc.
Commercial Motor Freight Inc.
of Indiana
Consolidated Forwarding Co.
Ellis Trucking Co., Inc.
Federal Express, Inc.
Federal Truck Lines, Inc.
Foster Freight Lines, Inc.
Hancock Trucking, Inc.
Hayes Freight Lines
Holland Motor Express, Inc.
Huber & Huber Motor Express,
Inc.
R D Motor Express, Inc.
Terminal Transport Co., Inc.
Transamerican Freight Lines, Inc.
Turner Trucking Co.
Yellow Transit Freight Lines, Inc.
Ziffrin Truck Lines, Inc.
Appendix B
NOTICE TO ALL MEMBERS OF CHAUFFEURS, TEAMSTERS, WAREHOUSEMEN
AND HELPERS LOCAL UNION No. 135, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, AFL
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT induce or encourage the employees of any Motor
Carrier or of any other employer, to engage in a strike or con-
certed refusal in the course of their employment to use, transport,
or otherwise handle or work on goods, or to perform any services,
where an object thereof is to require any Motor Carrier to cease
using, handling, selling, transporting, or otherwise dealing in the
products of or to cease doing business with concerns selling,
among other things, automotive parts, tires, and gasoline and oil,
and furnishing services on the Carriers' equipment, except insofar
as such action is permitted under Section 8 (b) (4) of the National
Labor Relations Act.
WE wITHDRAw any instruction, request, or appeal (a) to refrain
from receiving from, delivering to, or otherwise handling mer-
chandise with, employees of nonunion Supply firms at the Motor
Carriers' premises; and (b) to prevent or otherwise interrupt
employees of nonunion firms in. performing tire-recapping or
CHAUFFEURS , TEAMSTERS , ETC., LOCAL UNION NO. 135 1287
-other operations on the Carriers' equipment at the Carriers'
premises.
CHAUFFEURS , TEAMSTERS , WAREHOUSEMEN
AND HELPERS LOCAL UNION No. 135, INTER-
NATIONAL BROTHERHOOD OF TEAMS'T'LrRS,
CHAUFFEURS, WAREHOUSEMEN & HELPERS
OF AMERICA, AFL
Labor Organization.
By -----------------------------------------------
(Title of Officer)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by individual parties, the General Counsel for the National
Labor Relations Board , by the Regional Director for the Ninth Region (Cin-
cinnati , Ohio ), issued a complaint on May 21 , 1952, against Chauffeurs, Team-
sters , Warehousemen and Helpers Local Union No. 135, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen & Helpers of America , AFL, herein
called the Union , alleging that the Union had engaged in conduct violating Section
8 (b) (4) (A ) and Section 2 (6) and (T) of the Labor Management Relations
Act, 1947, 61 Stat . 136, herein called the Act. Copies of the complaint and
charges were served upon the Union ; and the Union filed an amended answer
denying the commission of the unfair labor practices alleged.
Pursuant to notice , a hearing was held in Indianapolis , Indiana, on June 24 and
25, 1952, before the undersigned Trial Examiner . All parties were represented
at the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the issues. The
parties presented oral argument at the close of the hearing and they were also
granted permission to file briefs and proposed findings of fact and conclusions
of law. A motion by the Union to dismiss the complaint is disposed of in
accordance with the following findings of fact and conclusions of law.
Upon the record in the case , and upon observation of the demeanor of
witnesses , I make the following :
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES
A. Facts of the oontroversy
The complaint lists 22 trucking concerns, set forth in Appendix A which
operate interstate as common carriers under certificates of public convenience
and necessity issued by the Interstate Commerce Commission . These trucking
concerns, which I shall refer to as the Carriers , have docks , warehouses, and
other trucking facilities in Indianapolis'
The Carriers do business with other Indianapolis firms, herein called the Sup-
pliers, which sell gasoline and oil, tires , and other automotive parts and equip-
1 I find that the Carriers are engaged in commerce within the meaning of the Act.
1288 DECISIONS OF NATIONAL LABOR . RELATIONS - BOARD.
went to the Carriers. The Suppliers also furnish tire recapping, wrecking, and
other services to the Carriers. It is the practice in Indianapolis for the Suppliers
to deliver automotive parts and equipment and, at times , gasoline and oil to the
Carriers at the Carriers' premises . In the case of tire recapping, the Suppliers
doing that business send a crew of men to the Carriers' premises to inspect and
dismount tires and then to remove the tires to the Suppliers' premises for re-
capping following which the Suppliers return the recapped tires to the Carriers'
premises.
At all times material to this case, the Carriers have been recognizing the
Union as exclusive bargaining representative for units of their employees.' All
employees within these Carrier units are members of the Union. The Suppliers
also have employees with job classifications within the Union's organizational
orbit. In February 1952 the Union executed recognition agreements with two of
the Suppliers, and in May 1952 the Union filed a representation petition seeking
to represent employees of another of the Suppliers.
In or about October 1951 the Union adopted what I shall call the nonhandling
policy, to the effect that its members employed by the Carriers would not receive,
deliver, or otherwise handle merchandise sought to be delivered or picked up
at the Carriers' premises unless the driver attempting to deliver or pick up such
merchandise at the Carriers' premises was a member of either the Union or any
other labor organization "recognized" by the Union. As explained hereinafter,
the policy also applied to services performed at the Carriers' premises by em-
ployees of the Suppliers. The Union's stewards who were in the employ of the
various Carriers advised their respective units of rank-and-file members to
carry out this nonhandling policy, and, according to the testimony of Union Presi-
dent Gene San Soucie, the union members employed by all carriers under contract
with the Union "generally" complied with the instructions. The policy, as car
iied out, permitted the Carriers' employees to receive or otherwise handle mer-
chandise from a nonunion driver at the Carriers' premises where such nonunion
driver was employed by a Supplier or other concern with which the Union either
had a recognition agreement or was engaged in negotiating one at the time. And
the policy also permitted the Carriers' employees to receive merchandise from a
driver employed by a nonunion concern if the transfer occurred at a point located
off the Carriers' premises . The Carriers' employees also were permitted, within
the policy, to deliver or pick up merchandise at the premises of nonunion concerns.
During the effective period of the nonhandling policy, the record shows that
a union steward or other employees of the Carriers would stop nonunion oper-
ators of vehicles which entered the Carriers' premises and inform them that
they (the nonunion operators) could not deliver or pick up merchandise. The
Suppliers of tires, parts and equipment, and gasoline and oil were thus fore-
stalled from making delivery at the Carriers' premises. And when nonunion
crews of the Suppliers came upon the Carriers' premises to inspect and dismount
tires for recapping or to perform wrecking or other services on the Carriers'
equipment, these crews were similarly notified that they could not perform such
services on the premises, and such crews were thus also prevented from accom-
plishing their work.' In the case of parts and equipment, therefore, the Car-
riers'were impelled to hire additional employees and to assign vehicles to pick
tip parts at the Suppliers' premises (as at least one Carrier did) or to assign
this additional duty to their regular employees (as at least another Carrier
2The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3 The record shows that the application of the policy affected concerns, other than the
Suppliers, doing business with the Carriers and that the Carriers' employees would not
accept shipments from such other concerns where the driver in question was not a union
member
CHAUFFEURS, TEAMSTERS, ETC., LOCAL UNION NO. 135 1289
did) or to 'Cease purchasing parts and equipment from the Suppliers (as other
Carriers did). In the case of recapping during the period of the nonhandling
policy and practice, the Carriers had to assign their own employees to inspect,
dismount, and deliver tires to the Suppliers ( as at least one Carrier did) or
to discontinue this service with the Suppliers (as other Carriers did). The
same situation applied to other services furnished the Carriers by the Suppliers
at the Carriers' premises.
The record does not show that the affected Carriers attempted to compel their
employees to receive or otherwise handle merchandise delivered or to be picked
up by nonunion drivers or that the Carriers attempted to force their employees
to refrain from challenging and informing nonunion servicemen that they could
not perform the afore-mentioned services at the Carriers' premises. On the
other band, it also does not appear that the Carriers gave their employees per-
mission to engage in such conduct. Nor does it appear that the Union and the
Carriers had any agreement or understanding, written or oral, under which
the Carriers' employees could refuse to accept services furnished by the Sup-
pliers' nonunion crewmen or refuse to receive or otherwise handle merchandise
delivered or to be picked up by nonunion drivers at the Carriers' premises.
The record discloses a substantial dislocation and reduction and in some in-
stances a complete cessation, in the business of the nonunion Suppliers with
the Carriers as a consequence of the Union's nonhandling policy and practice.
Certainly, all business at the Carriers' premises was halted in the respects men-
tioned above. The record further shows that the normal business relationship
between Suppliers and Carriers was restored as soon as an individual Supplier
executed a recognition agreement with the Union ; and that the discommoding
conditions of the nonhandling practice were removed as to the remaining non-
union Suppliers when the Union agreed to refrain from the conduct under con-
sideration here, pending disposition of the present Board proceeding.'
B. Additional contemporaneous conduct of the Union
Shortly before the nonhandling policy went into effect, the Union began
checking the union dues books of carrier drivers who operated through the
Indianapolis area, and its agents, meanwhile, also informed these drivers which
filling stations were union and which stations were nonunion. San Soucie testi-
fied that this check was a yearly operation of the Union's parent International
and that the checking operation was unrelated to the Union's nonhandling policy.
Late in 1951, a tanker driver of one of the Suppliers (Budd's Service Station)
was prevented from delivering gasoline at one of the Carriers' premises because
of the nonhandling practice effective at the time. Philip W. Vickery, Budd's
manager, took up the matter with Union President San Soucie. San Soucie there-
upon advised Vickery that deliveries could be resumed without further inter-
ference if Budd's tanker driver would join the Union and If Budd signed a
recognition agreement with the Union. At the same time San Soucie submitted
a recognition agreement to Vickery. In January 1952, on an occasion when union
agents were checking dues books of drivers at Budd's premises, Union Agent
Rei ff r, asked Vickery what' Budd's "hdd`decid0d to do abbut' jbining the Union,"
A On May 15, 1952, the Board instituted action under Section 10 (1) of the Act, to
enjoin the Union from engaging in the conduct in question here . The petition was filed
in the United States District Court for the Southern District of Indiana (Civil No. 3067)
Pursuant to a "Stipulation" executed by the parties on May 27 , 1952 , which stipulation
was filed with the court on June 4, 1952, the court continued the hearing in the injunction
matter and the Union immediately ceased to engage in the conduct in dispute pending final
adjudication of the present proceedings by the Board.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the following day YJnion Agents Dininger and Lambert advised Vickery that
"they Intended to organize the filling station business in Indianapolis and ...
that they had to make Indianapolis a union town."
The record establishes that union agents signed up some employees of Suppliers
during the period under consideration, that Union Agent Howard suggested
to one such employee that "it might be a good thing to join the Union," and
that, as indicated above, the Union executed recognition agreements with two
Suppliers and filed a representation petition with the Board respecting the em-
ployees of another Supplier. San Soucie nevertheless testified that the Union
was not engaged in any campaign to organize employees of the Suppliers and he
also denied that either the checking operation or the nonhandling policy was part
of any such organizational drive. The Union claims it material in this connection
and offered testimony to the effect that the Union did not itself seek out the
Suppliers to obtain recognition agreements from them and that the Union did not
enter into such agreements unless a majority of the affected employees had desig-
nated the Union as their bargaining representative.
C. Contentions of the parties
Section 8 (b) (4) (A), under which the present action is brought, is often
referred to as "one of the Act's `secondary boycott sections."' N. L. R. B. v.
Denver Building d Construction Trades Council, 341 U. S. 675, 686. This section
.provides in relevant part that
(b) It shall be an unfair labor practice for a labor organization or its
agents-
* 4 * s s s •
(4) to engage in, or to induce or encourage the employees of any em-
ployer to engage in, a strike or a concerted refusal in the course of their
employment to use . . . 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 other person to cease using
. . . handling, transporting, or otherwise dealing in the products of any
other producer, processor, or manufacturer, or to cease doing business with
any other person.
it may be noted, also, that a "strike" is defined in Section 501 (2) of the Act as
including
... any strike or other concerted stoppage of work by employees ... or
other concerted interruption of operations by employees.
The General Counsel claims that the violation is proved In this case upon his
purported showing that the Union induced employees of the Carriers, allegedly
the secondary employers to a dispute, to engage in a strike at the premises of the
Carriers for the purpose of causing the Carriers to cease doing business with the
Suppliers, allegedly the primary employers in the dispute. The Respondent, on
the other hand, denies the violation and contends, among other things : That the
Union had no labor dispute either with the Carriers or with the Suppliers and
that, in the absence of a primary dispute with the Suppliers there could be no
secondary dispute with the Carriers ; that whatever action the Union and the
Carriers' employees engaged in was not intended to cause the Carriers "to cease
doing business" with the Suppliers within the meaning of the Act ; and that thb
Carriers acquiesced in the conduct under consideration, and such acquiescence Is
a complete defense to conduct which otherwise may constitute a violation of the
Act in the respects charged.
CHAUFFEURS, TEAMSTERS, ETC., LOCAL UNION NO. 135 1291
D. Resolutson of the tissues
1. I find that the Union was party to a labor dispute involving the Suppliers
and the Carriers and that this labor dispute meets the statutory definition of
Section 2 (9) of the Act.` The aforestated facts demonstrate , in my opinion,
that this dispute concerns the intended accomplishment by the Union of the
organization of the Suppliers' employees and the coverage of these employees
in recognition agreements between the Union and the Suppliers. The Suppliers
were primarily involved in this dispute, therefore, and I also find that the Union
embarked on the nonhandling policy and practice in order to attain, at least as
one of its purposes,' these organizational objectives respecting the Suppliers'
employees.
The Union cites Douds v. Sheet Metal Workers decided by the United States
District Court, Eastern District of New York, to support its contention that no
secondary labor dispute exists here. There were two decisions in that case, in
the first of which-and this is the one upon which the Respondent relies-the
court found that the interested labor organization had not attempted either to
organize the employees of the alleged primary employer or to obtain recognition
as their bargaining representative from the alleged primary employer (101 F.
Supp. 273, 277). The court thereupon held that the labor organization had
no dispute with the alleged primary employer and that, in the absence of such
dispute, there was so secondary dispute within the contemplation of Section 8
(b) (4) (A) of the Act. The court denied a motion for reconsideration, stating
that in any event the union had a "direct and voluntary agreement" permitting
it, in effect, to engage in the conduct alleged there to be violative of the Act (101
F. Supp. 970, 972).
In the present case, as shown above, the Union signed up employees of Sup-
pliers and executed recognition agreements with at least two of the Suppliers and
also filed a representation petition respecting the employees of another Supplier.
Moreover, there is the statement of union agents to Budd's manager that the
Union intended to make Indianapolis a "union town." Also showing a nexus be-
tween the nonhandling policy and an organizational purpose respecting the Sup--
pliers' employees is the circumstance that the nonhandling policy was not applied-
to Suppliers recognizing the Union, even though the Supplier's driver in question,
was not a union member. It appears, therefore, that the afore-mentioned fact
predicates upon which the court in the Sheet Metal Workers case first decided the-
issue cannot be posited here.
Furthermore, whether a labor dispute exists within the meaning of the Act
and/or whether a labor organization is endeavoring to organize employees and
obtain agreements covering them does not necessarily depend, in my opinion,
on proof that the interested labor organization solicited employees of the primary
employer in the usual manner of such solicitation or that the labor organization
directly requested the primary employer to recognize it as bargaining representa-
tive of the primary employer's employees or that it did not make such recognition
request until signing up a majority of affected employees. Organization of em-
ployees can be achieved indirectly as well as by direct means, and under some
4reumstances a labor organization might deem an indirect method to be more
efficacious than the direct and more usual approach to the matter . A union
b Cf. S. Rep. No. 573, 74th Cong., 1st Bess., p. 7; H. Rep . No. 969, 74th Cong, let Bess.,
p. 8; H. Rep. No. 972, 74th Cong., 1st Sees., p. 8.
• It is not required , in order to sustain the charged violation , that the "sole" object of
the conduct be proscribed . IN. L. It. B. v. Denver Building d Construction Trades Council,
341 U. S. 676, 689; International Brotherhood of Electrical Workers v. N. L. R. B., 341
U. S. 694 , 700; Local 74, United Brotherhood of Carpenters J Joiners of America v.
N. L. It. B., 341 U. S. 707, 713.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may believe , for example , that an indirect method has certain advantages re-
garding problems of proof in the event of proceedings before the Board of the
very sort under consideration here . Moreover , the record in the present case
shows the nonhandling practice to be an effective means of organization , however
indirectly its persuasion be exerted. But the issue is not why the Union used a
particular organizational approach, direct or indirect; rather the question at
hand is whether the Union's conduct had an organizational purpose respecting
the Supplier's employees, and I find that it did'
As circumstances which allegedly negate the General Counsel's claim that the
nonhandling policy was a device to organize the Suppliers' employees, the Union
calls attention to the fact that this policy and practice permitted union members
to receive and make delivery to drivers who were members of other " recognized"
unions even though such drivers were not also members of the Respondent Union.
And the record also shows, in continuing the Union's argument, that the non-
handling policy applied to all nonunion employees seeking to deliver or to pick
up merchandise, even those employed by concerns other than the Indianapolis
Suppliers. It may be true that the nonhandling policy was not precisely or
solely tailored to an organizational purpose respecting the Suppliers' employees
and it also may be a fact that the scope of the policy and practice was broader
in some respects and narrower in others than such purpose might have required.
But these circumstances do not here demonstrate that the nonhand.iing policy was
unrelated to such organizational efforts; rather, they tend to show only that
the policy and practice may have had other purposes or considerations in addition
to the organization of the Suppliers' employees. As stated above, it is not re-
quired in order to sustain this violation that all objects of the conduct under
consideration fall within the statutory prohibition.'
2. I further find that the nonhandling practice was intended to breach the
Suppliers-Carriers relationship within the meaning of the Act. Contending that
this practice was not intended to cause the Carriers to cease doing business with
the Suppliers, the Union points to the circumstance that the nonhandling policy
and practice permitted the Carriers' employees to receive deliveries from, and
to otherwise handle merchandise with, nonunion drivers of Suppliers at locations
other than the Carriers' premises and that the Carriers' employees were not even
barred, thereunder, from picking up supplies at the premises of nonunion Sup-
pliers. According to the Union, at most what it sought to accomplish was a
change in the method of Supplier-Carrier operations at the Carriers' premises.
The Union predicates this argument on the premise that the phrase "to cease
doing business" means to cut off all avenues of operations between primary and
secondary employer and that this required cessation is not met where the Union
provides the Carriers an alternative method of doing business with the Suppliers,
which it claims it did here.
As neutral parties to a dispute between the Union and the Suppliers, the Car-
riers are entitled, within the meaning of Section 8 (b) (4) (A) of the Act, to be
free from any interference in the manner they choose to do business with the
I See S. Rep. No. 105, 80th Cong ., 1st Sess , p. 22.
s See footnote 6, supra.
e Except where interference with the secondary employer is merely an incidental effect
of legitimate primary activity against the primary employer. See Oil Workers Interna-
tional Union ( The Pure Oil Company ), 84 NLRB 315; International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America (S chultz Refrigerated
Service, Inc.), 87 NLRB 502, 508; N. L. R. B. v. Service Trade Chauffeurs ( Teamsters),
191 F. 2d 65 ( C. A. 2) However , the Union makes no contention that the interferences
visited on the Carriers in this case were incidental to lawful primary action against the
Suppliers Cf. N L R. B v Denver Building d Construction Trades Council , 3411 U S
675, 692.
CHAUFFEURS, TEAMSTERS, ETC., LOCAL UNION NO. 135 1293
:Suppliers ,' where a purpose of such interference is to cause the Carriers to cease
doing business with the Suppliers . I am unaware of any warrant in the lan-
guage of the Act, its legislative history, or its policy which might justify other-
wise unlawful interference merely because the Union offers an alternative method
of operations on the Union's own terms. To hold otherwise would effectively
remove this secondary boycott provision from,the Act. Nor is it relevant, in my
opinion, that the alternative be equally convenient to the Carriers, which in this
,case it was not. (The record amply supports the charging parties' claim that
"the conditions which the Union seeks to impose upon motor carriers for the
privilege of doing business with the nonunion supply firms are obviously burden-
some conditions which render it impractical in some cases and impossible in
others for the motor carriers to do business with such supplier firms.")
I find, in any event, that the Union's purpose was not only to breach Carrier-
Supplier operations at the Carrier's premises, but that, by preventing such opera-
tions, it also sought to attain the ultimate object of completely disrupting busi-
ness relations between Carriers and nonunion Suppliers. I conclude, therefore,
that the phrase "to cease doing business" does not require a complete cessation
.in all respects and under all circumstances .10 But even if a complete rupture in
Carrier-Supplier relations be required as an object, I conclude that the Union
had such an object in this case.
3. The record also establishes, and I find, that the Union induced and en-
couraged the Carriers' employees, by its instructions and other appeals to them,
to engage in the nonhandling practice." That the Union may not have taken
-or even threatened to take internal disciplinary action against Carrier employees
violating the practice does not militate against the fact of inducement or
encouragement, as the Union seems to claim.
4. Where, for purposes and in circumstances otherwise unlawful under Section
8 (b) (4) (A) of the Act, employees are caused by a labor organization to
refrain from performing their own work, the labor organization has induced
•conduct prohibited by the Act.'= Section 8 (b) (4), which prohibits a union
from causing employees of a secondary employer to engage in a "strike," thereby
also proscribes a union from causing such employees to interfere with opera-
tions other than their own. For, as set forth above, Section 501 (2) of the Act
defines a "strike" as including not only a "concerted stoppage of work by
employees" but also "other concerted interruption of operations by employees."
Thus the Act prohibits labor organizations, under these circumstances, from
inducing secondary employees not only to refrain from performing their own
work, but also to interfere, with operations , performed by other employees or
dndividuals for the benefit of their (the secondary) employer. I am of the
further opinion, moreover, that these other operations need not be performed
by employees of the same secondary employer in order to fall within the purview
ofSection 8 (b) (4) (A) of the Act.
I conclude, therefore, that the Union was forbidden to cause, as it did, the
Carriers' employees to refrain from receiving, delivering, or otherwise handling
"Cf. Local 894 , International Brotherhood of Teamsters (Western Empress Company),
91 NLRB 340, 341, to the effect that the Act does not permit "of even a temporary
secondary boycott."
11 Cf. N. L. R. B. v. Denver Building d Construction Trades Council, 341 U. S 675, 690 ;
International Brotherhood of Electrical Workers V. N. L. R B., 341 U S. 694, 701-705;
'Glaziers ' Union Local No. 27 etc. (Joliet Contractors Association ), 99 NLRB 1391 (as to
the Grant Hardware incident).
m2 2Y. L R. B. v. Denver Building d Construction Trades Council, 341 U. S. 675, 695-669;
Local 74, United Brotherhood of Carpenters and Joiners of America v N. L. R B , 341
U. S 707, 699-700 ; Local 294 , International Brotherhood of Teamsters, Chau ffeurs, Ware-
housemen, and Helpers of America, A. F. L. (Western Empress Company, Inc ), 91
NLRB 340
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merchandise at the Carriers' premises . For the reasons stated above I conclude
that the Union also was forbidden to cause, as it did, the Carriers' employees
to prevent or otherwise interrupt employees of the Suppliers in servicing or
otherwise performing operations on the Carriers' equipment on the Carriers'
premises.
I find, also, that the Union induced and encouraged the Carriers' employees
to engage, concertedly, in the afore-mentioned nonhandling conduct. In connec-
tion with the fact that a steward or other employee (union member) of the
Carriers usually advised the nonunion drivers or other crewmen that they could
not make delivery or perform services, it Is noted "that an activity may be
concerted although it involves only a speaker and a listener. Group action is
not deemed a prerequisite to concerted activity, for the reason that a single
person's action may be the preliminary step to acting in concert." Salt River
Valley Water Users Association, 99 NLRB 849.
5. Citing the Conway case," the Union asserts that the Carriers acquiesced in
the nonhandling practice and that the Union's conduct in inducing such practice
is in any event, therefore, not a violation of the Act. The Conway case holds
that there is no violation in taking otherwise unlawful action against a secondary
employer, where the secondary employer and the interested union have a contract
which, in effect, permits the Union or the secondary employer's employees to
engage in such conduct. While no such contract was operative between the
Carriers and the Union during material times here, the Union asserts that the
necessary underlying theory of the Conway case is not that a contract exists but
that the secondary employer acquiesces in secondary action against him. Accord-
ing to the Union, a contract is merely evidentiary of acquiescence but that
acquiescence may be shown otherwise. The Union claims that such acquiescence
appears in the present case in view of the alleged failure of the record to show
that the Carriers insist their employees not follow the nonhandling practice.
That the charges in the present case were not filed by the Carriers also is
evidence, according to the Union, that the Carriers acquiesced in the nonhandling
practice.
Once the Union and its members employed by the Carriers advised the Car-
riers that they were carrying out the nonhandling policy there wasn't much,
as a practical matter, that the Carriers could have done or said to their em-
ployees or the Union to cause them to abandon the program . The only basis
for acquiescence in this case is that the Carriers did not utter futile words of
insistence or prayerful request to their employees to do their own work and
also not to interrupt the work of others. However, the violation existed here,
even absent such insistence. Local 294, International Brotherhood of Teamsters
etc. (Western Express Company), 91 NLRB 340, 341. Moreover , the Board has
settled this point of acquiescence dehors a contract : "We find nothing in the
Act Itself or in its legislative history which would permit the establishment of
even a temporary secondary boycott where . . . there is no applicable contrac-
tual provision." Local 294, International Brotherhood of Teamsters ( Western
Express Company), 91 NLRB 340, 341.
I find no acquiescence by the Carriers in the nonhandling practice.
II. CONCLUSIONS OF LAW
1. The Union , for the purpose of forcing the Carriers to cease doing
business with the Suppliers , has induced employees of the Carriers (a) to
refrain from receiving , delivering , or otherwise handling merchandise at the
Is International Brotherhood of Teamsters (Conway's Express), 87 NLRB 972, 981-98&
DIXIE FURNITtUIig COMPANY, INC. 1295
Carriers ' premises , and (b ) to prevent or otherwise interrupt employees of the
Suppliers in servicing and performing other operations on the Carriers' equip-
ment at the Carriers ' premises . The Union has thereby violated Section 8
(b) (4) (A) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
III. THE REMEDY
Having found that the Respondent Union has violated Section 8 (b) (4) (A)
of the Act, I shall recommend that it cease and desist therefrom and that it
also take certain affirmative action which I find necessary to effectuate the
policies of the Act.
[Recommendations omitted from publication in this volume.]
DIxni FURNITURE COMPANY , INC., and UNITED FURNITURE WORKERS
or AMERICA , CIO. Case No. 11-CA-9292 (Formerly 34-CA-R92).
December 22,1952
Decision and Order
On April 14, 1952, Trial Examiner C. W. Whittemore issued his
Intermediate 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
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those allega-
tions. Thereafter, the Respondent and the General Counsel filed ex-
ceptions to the Intermediate Report, and supporting briefs.
The Board' has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as
amended, the Board has delegated its powers in connection with this case to a three-member
panel [Members Houston , Murdock , and Styles),
P Like the Trial Examiner , we find that Markland 's alleged violation of the Respondent's
no-solicitation rule was not the real reason for his discharge , but rather that this incident
was seized upon by the Respondent as a pretext for discharging Markland because of his
union leadership . An employer may lawfully enforce a no-solicitation rule that applies
to working time, such as the rule involved here . But the Act is violated where, as here,
the record shows that the enforcement of the rule is used as a subterfuge to cloak an
unlawful motive . We find , therefore, as the Trial Examiner did, that the Respondent's
discharge of Markland was a violation of Section 8 (a) (3) of the Act. See Piedmont
.Shirt Co . v. N. L. R. B., 138 F . 2d 738 (C. A. 4), enforcing 49 NLRB 313.
101 NLRB No. 184.