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

National Labor Relations Board - Board Decisions

Dec 16, 1949

87 N.L.R.B. 720 (N.L.R.B. 1949)

In the Matter of INTERNATIONAL BROT HERI-IOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA , LOCAL 87, AFL.
and Di Gio:GIO `TINE COMPANY
In the Matter Of KERN COUNTY FARM LABOR UNION, LOCAL 218,.
NATIONAL FARM LABOR UNION , AFL and Di GIORGIO WINE COM;
PANY
In the Matter of KERN COUNTY FARM LABOR UNION, LOCAL 218,.
NATIONAL FARM LABOR UNION, AFL and ITALIAN SWISS COLONY
In the Matter of DISTILLERY, RECTIFYING AND WINE WORKERS INTER-
NATIONAL UNION, LOCAL 45, AFL and ITALIAN SWISS COLONY.
In the Matter Of KERN COUNTY FARM LABOR UNION, LOCAL 218, NA -
TIONAL FARM LABOR UNION, AFL and Di GIORGIO FRUIT CORPORA-
TION
In the Matter Of WHOLESALE DELIVERY DRIVERS AND SALESMEN `S
UNION, LOCAL 848, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and
Di GIORGIO FRUIT CORPORATION
Cases Nos. 21-CC-26, 21-CC-197, 21-CC-29 (00-CC-10), 21-CC-30
(20-CC-9), 21-CC-34, and 21-CC-40.--Decided December 16,
1949
DECISION
AND
ORDER
On April 28, 1949, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondents Wine Workers and Teamsters 848 had engaged in and
were engaging in ,certain unfair labor practices, and recommending
that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also recommended that the complaint
be dismissed in all other respects. Thereafter, certain of the Respond-
ents, the General Counsel, and the charging parties filed exceptions
to the Intermediate Report, and the General Counsel and the charg-
ing parties filed briefs in support of their exceptions. Briefs were
87 NLRB No. 125.
720
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 721
also filed by the California Farm Bureau Federation, the United
Fresh Fruit and Vegetable Association, the National Council of Farm
Cooperatives, the International Apple Association, the National Po-
tato Council, the California Grape and Tree Fruit League, and the
Agricultural Council of California.'
Oral argument was heard by the. Board on November 21, 1949
all parties participated.
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
Intermediate Report,-the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, insofar as consistent with this
Decision and Order.
1. We agree with the Trial Examiner's finding that Farm Union
is not a labor organization within the meaning of Section 2 (5) of
the Act.2 We also conclude, as did the Trial Examiner, that Farm
Union can not be held liable as an "agent" of its parent body, National
Farm Labor Union, because it acted in its own interest.
2. Contrary to the Trial Examiner, we find that Teamsters 87 is a
labor organization within the meaning of Section 2 (5) of the Act.
Although Teamsters 87 admits to membership, and claims to repre-
sent, Di Giorgio's agricultural laborers, it also numbers among its
members employees of other employers in Southern California. -It
clearly, therefore, falls within the Act's definition of a labor organiza-
tion. We agree with the Trial Examiner, however, that-their action
having been primary in character-Teamsters 87 has not engaged in
unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act. We shall adopt his recommendation that the complaint
be dismissed in that respect.3
. 3. We agree with the Trial Examiner that Teamsters Local 848 and
Distillery Workers Local 45 violated Section 8 (b) (4) (A) by their
. 1 We have not considered the brief submitted by the Respondents at the close of oral
argument.
8 Section 2 (5) is as follows:
The term "labor organization" means any organization of any kind, or any agency
or employee representation committee or plan, in which employees participate and
which exists for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or conditions
of work. [Emphasis supplied.]
Section 2 (3) provides in part as follows:
The term "employee" . . . shall not include any individual employed as an agri-
cultural laborer. . . .
See International Rice Milling Co., 84 NLRB 360.
1 See The Pure Oil Company, 84 NLRB 315, Ryan Construction Corporation, 85 NLRB
417.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct at the Safeway Stores and Italian Swiss Colony establish-
ments, respectively.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that :
A. The Respondent, Distillery, Rectifying and Wine Workers Inter-
national Union, Local 45, AFL, and its agents, shall-:
1. Cease and desist from engaging in, or inducing or encouraging
the employees of Italian Swiss Colony or any other employer to engage
in, a strike or a concerted refusal in the course of their employment
to perform any services, where an object thereof is to force or require
Italian Swiss Colony or any other employer or person to cease doing
business with the Di Giorgio Wine Company.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at its business offices, where notices
or communications to members are customarily posted, copies of the
notice attached hereto, marked Appendix A.4 Copies of the said
notice, to be furnished by the Regional Director for the Twenty-first
Region, after being duly signed by this Respondent, shall be posted by
it immediately upon receipt thereof, and maintained for a period of
sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that the notices are not altered,
defaced, or covered by any other material;
(b) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
B. The Respondent, Wholesale Delivery Drivers and Salesmen's
Union, Local 848, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, and its agents,
shall :
1. Cease and desist from engaging in, or inducing or encouraging
the employees of Safeway Stores, Inc., or any other employer to
engage in, a strike or a concerted refusal in the'course of their employ-
ment to perform any services, where an object thereof is to force or
require Safeway Stores, Itic., or any other employer or person to cease
doing business with Di Giorgio Fruit Corporation.
2. Take the following affirmative action -which the Board finds
will effectuate the policies of the Act:
4 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words: "A DECISION AND ORDER," the
words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 723
(a) Post in conspicuous places at its business offices where notices
or communications to members are customarily posted, copies of the
notice attached hereto, marked Appendix B.5 Copies of the said no-
tice, to be furnished by the Regional Director for the Twenty-first
Region, after being duly signed by this Respondent, shall be posted
by it immediately upon receipt thereof, and maintained for a period
of sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that the notices are not altered,
defaced, or covered by any other material ;
(b) Notify the Regional Director for the Twenty-first Region in
Writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that (1) the Respondents, Kern County
Farm Labor Union, Local 218, National Farm Labor Union, and In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 87, AFL, have engaged in unfair labor
practices within the meaning of Section 8 (b) (4) (A) of the Act,
and (2) the Respondents have violated Section 8 (b) (1) (A) of the
Act.
APPENDIX A
NOTICE
To All Members of Distillery, Rectifying and Wine Workers Inter-
national Union, Local 45, AFL, and to All Employees of Italian
Swiss Colony
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify you that :
WE WILL NOT engage in, or induce or encourage the employees
of Italian Swiss Colony or any other employer to engage in, a
strike or a concerted refusal in the course of their employment
to perform any services, where an object thereof is to force or to
require Italian Swiss Colony or any other employer or person
to cease doing business with Di Giorgio Wine Company.
DISTILLERY, RECTIFYING AND WINE WORKERS
INTERNATIONAL UNION, LOCAL 45, AFL, ,
Labor Organization.
By ----------------------------------------
(Representative) (Title)
Dated --------------------
G In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words : "A DECISION AND ORDER," the
words: "A DECREE OF THE UNITED STATES COCRT OF APPEALS ENFORCING."
877359-50-vol. 87-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
APPENDIX B
NOTICE
To All Members of Wholesale Delivery Drivers and Salesmen 's Union
Local 848, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers o f America, AFL, and to All Employees
of Safeway Stores, Inc.
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 notify you'that :
WE WILL NOT engage in , or induce or encourage the employees
of Safeway Stores, Inc. or any other employer to engage in, a
strike or a concerted refusal in the course of their employment to
perform any services , where an object thereof is to force or re-
quire Safeway Stores , Inc. or any other employer or person to
cease doing business with Di Giorgio Fruit Corporation.
WHOLESALE DELIVERY DRIVERS AND SALESMEN 'S UNION,
LOCAL 848 , INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS
of AMERICA, AFL,
Labor Organization.
By -----------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
AND
RECOMMENDED ORDER
Messrs. Eugene M. Purvey and James V. Constantine, for the General Counsel.
Messrs. James F. Galliano and C. P(ml Paduck, of Oakland, Calif., for
Teamsters 87.
Messrq. Alexander H. Schullman and David S. Smith, of Los Angeles, Calif.,
for Farm Union and Wine Workers.
Mr. V. P. Lucas, of Los Angeles, Calif., for Teamsters 848.
Brobeck, Phleger & Harrison; by Messrs. Robert E. Bwrns and Peter H. Behr,
of San Francisco, Calif., for Di Giorgio and Swiss Colony.
STATEMENT OF THE CASE
Upon charges and amended charges filed on March 9 and June 10, 1948, by
Italian Swiss Colony, Di Giorgio Fruit Corporation, and Di Giorgio Wine Com-
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 725
pang,' the General Counsel of the National Labor Relations Board,' by the
Regional Director for the Twenty-first Region (Los Angeles, California), issued
a consolidated complaint dated June 23, 1948, against (1) International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 87,
AFL, herein called Teamsters 87; (2) Kern County Farm Labor Union, Local 218,
National Farm Labor Union, AFL, herein called Farm Union; (3) Distillery,
Rectifying and Wine Workers International Union, Local 45, AFL, herein called
Wine Workers ; and (4) Wholesale Delivery Drivers and Salesmen's Union, Local
848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL, herein called Teamsters 848, all of whom are jointly
called the Respondents. The complaint, as amended at the hearing, alleged that
Respondents had engaged in and were engaging in unfair labor practices affecting
commerce within the meaning of Section 8, subsections (b) (1) (A) and (b) (4)
(A), and Section 2, subsections (6) and (7) of the National Labor Relations Act,
49 Stat. 449, as amended by the Labor Management Relations Act, 1947, 61 Stat.
136, herein called the Act. Copies of the complaint and notice of hearing thereon
were duly served upon the Respondents, Swiss Colony, and Di Giorgio.
With respect to the unfair labor practices, the complaint, as amended, alleged
in substance that since October 1, 1947, Teamsters 87 induced and encouraged
the employees of Oilfields Trucking Company, Pacific Motor Trucking Company,
Arvin Line, and Turner Brothers e to engage in a strike or concerted refusal in
the course of their employment to transport or otherwise handle or work on any
goods, with the object of forcing or requiring each of said four concerns to cease
doing business with Wine Company. More specifically, it is alleged that Team-
sters 87 (a) induced or encouraged employees OTC, PMT, and Arvin Line, by
orders, threats of disciplinary proceedings, and other threats and promises of
benefits, to engage in a strike or concerted refusal to transport goods shipped by
or to Wine Company, and (b) by the same types of conduct and by "taking
punitive action against" certain employees of Turner Brothers, induced and
encouraged them to strike and to refuse to transport or otherwise handle any
goods for delivery to Wine Company.
With respect to Wine Workers, it is alleged that this Respondent on and after
February 26, 1948, upon the delivery of wine from Wine Company to Swiss Colony
at Clovis, California, engaged in, and by intimidation, coercion, orders, and
threats of disciplinary action toward employees of Swiss Colony who were its
members, induced and encouraged them to engage in, a strike or a concerted
refusal to perform any services for Swiss Colony, with the object of forcing or
requiring Swiss Colony to cease doing business with Wine Company.
With respect to Farm Union, it is alleged (a) that on separate occasions on
and after February 26, 1948, upon the delivery of the wine mentioned, in the
paragraph next above, this Respondent utilized coercion, intimidation, threats
of disciplinary proceedings against employees of Swiss Colony who were members
of Wine Workers, and also by threats, promises of benefit, picketing, and other
means, induced and encouraged the employees of Swiss Colony to engage in a
strike or a concerted refusal to perform any services for Swiss Colony with the
object of forcing or requiring Swiss Colony to cease dealing in the products of
i Italian Swiss Colony is herein called Swiss Colony. The two Dl Giorgio corporations
are separately called Fruit Corporation and Wine Company, and together called Di Giorgio.
2 The General Counsel and the attorneys representing him in this matter are called the
General Counsel. The National Labor Relations Board is called the Board.
a 011fields Trucking Company and Pacific Motor Trucking Company are herein called
OTC and PMT, respectively. Arvin Line and Turner Brothers are called by their com-
plete names.
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wine Company, and (b) that on April 29, 1948, upon the delivery of potatoes by
Fruit Corporation to Safeway Stores, Inc., Los Angeles, California,` Farm Union
utilized intimidation, coercion, threats, promises of benefit, picketing, and other
means, to induce and encourage the employees of Safeway to engage in a strike
or a concerted refusal to handle or work on any goods or to perform any services
for Safeway with the object of forcing or requiring Safeway to cease dealing in
the products of Fruit Corporation.`
With respect to Teamsters 848, it is alleged that upon the delivery of the
potatoes mentioned in the paragraph next above this Respondent engaged in, and
by intimidation, coercion, orders, threats of disciplinary action against its mem-
bers who worked for Safeway, and also by other threats, promises of benefit,
and other means, induced and encouraged the employees of Safeway to engage
in, a strike or a concerted refusal to handle or work on goods or to perform
any services for Safeway with the object of forcing or requiring Safeway to
cease doing business with Fruit Corporation.
On July 1, 1948, Teamsters 87 filed with the Regional Director written motions
to dismiss the complaint, for a bill of particulars, and for a severance
of the proceedings as to it, all of which were ruled upon by we at the hearing,
as described below. At the same time, Teamsters 87 filed an answer in which
it denied various allegations of the complaint, particularly that it had engaged
in unfair labor practices, and asserted affirmatively that prior to the alleged
unfair labor practices approximately 80 percent of the truck drivers employed
by Di Giorgio had joined Teamsters 87 and that Di Giorgio had refused to
bargain collectively with it on behalf of the truck drivers. It alleged further
that Di Giorgio subsequently rejected a request of the Federal Mediation and
Conciliation Service and the California State Department of Industrial Rela-
tions to meet with it.
On July 28, Teamsters 848 filed its answer, admitting that it is a labor organiza-
tion and-denying all other allegations of the complaint.
On July 30, Farm Union and Wine Workers jointly filed a motion that the
hearing be postponed for 2 weeks, pointing out, as described below, that the
Regional Director had dismissed both a petition for certification filed by Farm
Union under Section 9 (c) of the Act and charges under Section 8 (a) (5) alleg-
ing that Fruit Corporation had refused to bargain collectively with Farm Union
as the representative of various categories of employees. The motion asserted
that the continuance was necessary in order that Farm Union and Wine Workers
could take certain legal steps set forth in the motion. On the same day, the
Acting Regional Director denied the motion for a postponement.
On August 3, Farm Union and Wine Workers filed their joint motion to dis-
miss the complaint upon constitutional and other grounds, for a bill of particulars,
and for a severance of the proceedings as to Wine Workers. These motions were
ruled upon by me at the hearing. On the same day, these Respondents also filed
their joint answer, denying that they are labor organizations within the meaning
of the Act, that they had engaged in unfair labor practices, and that Di Giorgio
is engaged in commerce. The answer alleged affirmatively, inter alia, that Farm
Union is the exclusive representative of certain employees of Fruit Corporation,
that said employees are "agricultural laborers" who are excluded from the pro-
" Safeway Stores, Inc., is herein called Safeway.
5In addition to the allegations involving employees of Safeway, there are similar allega-
tions involving employees of Easwest Produce Company, a purchasing agent for Safeway.
The evidence establishes, however, that no employees of Easwest Produce Company are
:involved.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 727
tections and benefits of Sections 8 (a) and 9 (a) to (c) of the Act, that Fruit
Corporation had refused repeatedly to bargain collectively with Farm Union,
as a consequence of which Farm Union's members voted unanimously to strike,
that Fruit Corporation had rejected the suggestions of the California State
Mediation Service that it meet and bargain collectively with Farm Union and
had persisted in its refusal to bargain, and that the Board and Fruit Corpora-
tion have "unclean hands" in that the Board had made no effort to persuade
Fruit Corporation to bargain with Farm Union.
Pursuant to notice, a hearing was held at Los Angeles, California, on various
dates from August 3 to September 22, 1948, before the undersigned Trial Ex-
aminer duly designated by the Chief Trial Examiner. The General Counsel,
Di Giorgio, Swiss Colony, and all four Respondents were represented by counsel,
and all participated in the hearing to the extent described below. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the opening of the
hearing, Farm Union and Wine Workers renewed their motion for a 2-week
postponement of the nearing, and Teamsters 87 moved for an indefinite post-
ponement. These motions were denied. The motions of Teamsters 87 and Wine
Workers that there be a severance of the proceedings as to them, and a like
motion by Teamsters 848, also were denied, as were motions to dismiss made
by all respondents.° The motions by Wine Workers, Teamsters 87, and Farm
Union for bills of particulars were granted in part and denied in part. Motions
by the General Counsel to amend the complaint so as to allege that the respond-
ent's conduct was violative of Section 8 (b) (1) (A), as well as Section 8 (b)
(4) (A), and to more clearly express the theory of the General Counsel for
proceeding against a union of agricultural laborers which had been denied
the benefits and protections of the Act, were granted over objections by the
respondents.
At the conclusion of the General Counsel's case, he moved to amend the com-
plaint further in order again to express more clearly his theories on the same
issue, and this motion was taken under advisement. It was granted near the
conclusion of the hearing. Teamsters 87, Farm Union, and Wine Workers made
motions to strike the testimony of witnesses for the General Counsel, and these
motions were denied. All Respondents made motions to dismiss the complaint
upon various grounds, and these motions were denied, some with leave to renew
at the close of the hearing.
During the presentation of Teamsters 87's defense, and after that Respondent
had offered all the testimony it cared to offer, its counsel expressed disapproval
of a ruling by me in which I permitted the General Counsel to pursue a line of
inquiry on cross-examination of Teamsters 87's last witness, subject to a motion
to strike. Asserting that he was acting because of a disagreement with that
ruling, counsel for Teamsters 87 withdrew from the hearing. The witness fol-
lowed his counsel from the hearing room. At this point, the attorney for Farm
Union- and Wine Workers also withdrew from the hearing, saying that under
the facts and the law there was no case against his clients and that it was point-
less for him to introduce defense testimony. Counsel for Teamsters 848, on the
other hand, said that in "all respects" he had "nothing but approval" for the
conduct of the hearing, and participated in it until its close. He did not offer
defense testimony, however.
° I stated at the hearing that I would assume the constitutionality of the Act, as amended,
In accord with the Board 's decision in Rite-Form Corset Company, Inc., 75 NLRB 174.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel and the attorney for the complaining corporations moved
to strike the testimony of Teamsters 87 in whole and in part, and these motions
were denied. The General Counsel moved to conform the complaint and the
answer of Teamsters 848 to the proof as to formal matters, and this motion was
granted without objection. Counsel for Teamsters 848 renewed the motions to
dismiss which he had made at the close of the General Counsel's case, and the
motions were taken under advisement. They are hereby denied.
The General Counsel and the attorney for Teamsters 848 availed themselves of
an opportunity to argue orally at the close of the hearing, and their arguments
are included in the transcript. Pursuant to leave granted, the General Counsel
and the attorney for the complaining corporations filed briefs.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
A. Di Giorgio Fruit Corporation
Di Giorgio Fruit Corporation, a Delaware corporation, is engaged in growing
and selling vegetables and fruits. It is qualified to do business in all States, but
its operations with which we are concerned are all in California. It owns a ranch
of about 11,000 acres near Bakersfield, known as Di Giorgio Farms, another ranch
of about 5,000 acres near Delano, known as Sierra Vista Ranch, and two addi-
tional ranches totaling about 1,100 acres near Marysville.
During 1947, Fruit Corporation sold fruits and vegetables valued at $12,612,000,
of which approximately $9,000,000 worth were shipped to points in interstate
commerce.' During the same year, Fruit Corporation purchased various ma-
terials, including lumber, paper, fertilizer, and seed, valued in excess of $1,700,000,
of which slightly more than $870,000 in value were shipped to it from points out-
side California.
Among the fruits grown annually by Fruit Corporation are approximately 30,000
tons of grapes. About 50 percent of the grapes are sold to various purchasers,
and their monetary value is included in the figures above. The remainder of the
grapes are delivered to Wine Company, which processes them into wine and sells
the product as an agent of Fruit Corporation.
B. Di Giorgio Wine Company
Di Giorgio Wine Company, a California corporation, is a wholly owned sub-
sidiary of Fruit Corporation. It is.engaged in the manufacture and sale of grape
wines, primarily for its parent corporation, and "as a courtesy" for neighborhood
grape growers .' Wine Company does not purchase the grapes, nor does it acquire
title to the wine which it manufactures. Instead, title remains in the grower,
for whom Wine Company manufactures and sells the wine for a fee. Its sales
are all in bulk, by tank car.
Wine Company operates its business on a tract of about 40 acres of land,.which
is a part of the Di Giorgio Farms property. The land, the buildings thereon, and
all equipment and machinery, are owned by Fruit Corporation and are leased
to Wine Company. It is the sound position of the General ,Counsel, and all the
7Included within the above figures of Fruit Corporation are sales of $2,145,000 from its
operations in the State of Florida . It has an extensive growing, packing , and canning
business in that State , as described in Di Giorgio Fruit Corporation, 80 NLRB 853.
8 About 1 week before the hearing commenced , Wine Company first sold grape brandy,
in addition to wine. Theretofore, all brandies made by Wine Company had been used to
fortify the wine.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC . 729
Respondents, but not that of Di Giorgio, that for the purposes of this proceeding
Fruit Corporation and Wine Company are a single entity. Certainly, insofar as
this case is concerned, Wine Company is merely an instrumentality, an agent,
of Fruit Corporation for the manufacture and sale of wine.
.
During 1946, the year of its incorporation, Wine Company manufactured about
3,800,000 gallons of wine from grapes belonging to various growers, 80 percent
of which belonged to Fruit Corporation. During that year, Wine Company, as
selling agent , made sales to out-of-State customers totaling 8 to 10 tank cars,
each containing 6,000 to 8,000 gallons, valued at about $1.40 per gallon. Thus,
the out-of-State sales during 1946 amounted to between $67,200 and $112,000 in
value, which constituted 40 percent of the total sales for that year.
During 1947, Wine Company manufactured about 3,000,000 gallons of wine,
valued at $750,000, of which 90 percent belonged to Fruit Corporation. The record
is not clear respecting the 1947 sales, however. Both Robert Di Giorgio, presi-
dent, and Earl D. Ryan, superintendent, of Wine Company, testified for the
General Counsel on the point. Robert Di Giorgio testified that the sales totaled
687,000 gallons, valued at $340,000, of which $261,000 represented shipments to
out-of-State customers . Ryan, who succeeded him as a witness , testified that
only 2 tank cars, containing about 16,000 gallons, were shipped out of State during
the entire year, and he fixed the value of the wine at "somewhere" between 40
cents and $1.25 per gallon.
During 1948, as of the time of the hearing, grapes had not been in season, and
no wine had been manufactured . Wine Company had made sales of about
2,000,000 gallons to Swiss Colony during that year, however , and all shipments
were intrastate.
During 1946 , Wine Company purchased materials , including fuel oil and chem-
icals, valued at approximately $20,000, of which about 5 percent was shipped to it
from points outside California . During the following year , the purchases ap-
proximated $25,000 in value , and again only about 5 percent was from out of
State. At the time of the hearing , there had been no out-of-State purchases
in 1948.
C. Italian Siviss Colony
Italian Swiss Colony, a California corporation , is engaged in the manufacture
and sale of grape wine . It operates four wineries in California, one of which is
located at Clovis and which is its only winery involved here. Purchases for the
Clovis plant include grapes , wine itself , bottles, and other items, practically all
of which are shipped to the plant from points within California.
During 1947 , the Clovis plant produced wine valued in excess of $770,000. Ap-
proximately 60 percent of this wine was shipped to points outside California.
During 1948 to the time of the hearing , the Clovis plant had not manufactured
any wine, but its purchases from Di Giorgio had approximated 1,500,000 gallons.
This wine , as well as wine purchased from other wineries , after receipt at the
Clovis plant , was clarified , filtered, and blended with wine on hand . The sales by
the Clovis plant during 1948 exceeded 3,000,000 gallons , and more than 60 percent
was shipped to points outside California.
I find that Swiss Colony is engaged in commerce within the meaning of the
Act.'
9 The record contains testimony respecting the purchases and sales of Swiss Colony
from all its four wineries in California, but it is unnecessary to recite these figures since
they involve wineries in addition to the one at Clovis , the only one involved in this
proceeding.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Safeway Stores, Inc.
Safeway Stores, Inc., which is not a party to this proceeding , is engaged in the
purchase , distribution , and sale of food and food products. It operates a ware-
house in Los Angeles, California, which is the only branch of Safeway involved
here and which serves as a receiving and distribution point for Safeway's prod-
ucts. After receipt of the products, they are shipped, primarily by Safeway's
own trucks , to approximately 300 retail stores in the area of Southern California
and a single store in Las Vegas, Nevada.
During 1947 , the products handled by the warehouse had a retail value in ex-
cess of $100,000,000, of which more than $800,000 represented shipments from the
warehouse to the retail store in Las Vegas . During 1948 , to the date of the hear-
ing, the shipments from the warehouse had exceeded the 1947 figures by about 10
percent. During each year, approximately one-third of the products were received
at the warehouse from points outside California.
I find that Safeway is engaged in commerce within the meaning of the Act 30
II. THE RESPONDENTS
Kern County Farm Labor Union, Local 218, affiliated with National Farm Labor
Union, A. F. of L., is an organization which was formed for the purpose of
representing farm and allied workers in matters of collective bargaining. Its
membership is composed exclusively of persons employed by Fruit Corporation
as agricultural laborers and, for reasons which appear below, it is not a labor
organization within the meaning of the Act.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local 87, affiliated with the A. F. of L., admits to membership,
and represents in collective bargaining, the truck drivers employed by various
trucking concerns, which are subject to the jurisdiction of the Board. In this
sense Teamsters 87 is a labor organization within the meaning of the Act. Team-
sters 87 also admits to membership the truck drivers and helpers employed by
Fruit Corporation, who are agricultural laborers. In this sense, Teamsters 87
is not a labor organization within the meaning of the Act.
Distillery, Rectifying and Wine Workers International Union, Local 45, affil-
iated with the A. F. of L., admits to membership the wine makers of Wine Com-
pany and Swiss Colony, and is a labor organization within the meaning of the
A.ct.
Wholesale Delivery Drivers and Salesmen's Union, Local 848, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
affiliated with the A. F. of L., admits to membership the truck drivers employed
by Safeway at its warehouse in Los Angeles, and is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary
During September 1947, Fruit Corporation employed about 1,500 workers at
Di Giorgio Farms, its ranch near Bakersfield, approximately 75 percent of whom
were harvest workers, field workers, and irrigators, and about 20 percent of
whom were packing-shed workers. The remaining 5 percent were truck drivers
and their helpers. Sometime prior thereto, Farm Union commenced its or-
10In Safeway Stores, Inc ., 59 NLRB 936 , the Board asserted jurisdiction over certain
other operations of Safeway Stores, Inc ., in San Diego , California.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 731
ganizational activities among all the categories of workers except the truck
drivers and their helpers, and at an uncertain date Teamsters 87 commenced
its activities among the latter group. There is no overlapping of representation
claims by these Respondents. Farm Union claims as members more than 1,100.
of the workers at Di Giorgio Farms, while Teamsters 87 claims as members
"almost the entire" group of truck drivers and helpers. For reasons which appear
below, however, they were unable to establish their claims through the processes
of the Board.
Shortly before October 1, 1947, Farm Union made a demand upon Fruit Cor-
poration that it bargain collectively. It is clear, and the General Counsel con-
cedes, that the demand was rejected and that Fruit Corporation has refused
to bargain. In addition, Teamsters 87 asserts that it made a similar demand
upon Fruit Corporation, which again refused to bargain, but the date of Teamsters
87's asserted demand is not disclosed in the record.11 On October 1, workers
at Di Giorgio Farms commenced a strike. A joint picket line of Farm Union
and Teamsters 87 was established at each point where a private road from the
11,000 acre property joined a public road. One of these private roads leads from
the 40-acre tract utilized by Wine Company, and this phase of Di Giorgio's
business, as well as its farming operations, was picketed. There has been no
strike of workers at the Sierra Vista Ranch or at other Di Giorgio properties.
The strike against Di Giorgio, as well as all related activities of Farm Union
and Teamsters 87, has been for the purpose of obtaining recognition by Di
Giorgio. Both the General Counsel and Di Giorgio contend that the refusal of
Di Giorgio to bargain is immaterial and, as will be apparent, the refusal was not
an unfair labor practice. Granting arguendo that the bare fact of the refusal
is immaterial, it does not follow that the reason for the refusal is also im-
material. Indeed, insofar as the reason may be inferred, it goes to the heart
of this case. Thus, while the record does not contain an explicit statement by
the General Counsel or Fruit Corporation as to the latter's reason for refusing
to recognize or bargain with Farm Union and Teamsters 87, it is a reasonable
inference that the refusal springs from the fact that the Board cannot compel
Fruit Corporation to bargain. This is so because Fruit Corporation's workers
whom these two Respondents claim to represent are agricultural laborers, who
are excluded from the definition of "employee" in Section 2 (3) of the Act and
who, for that reason, are entitled to none of the protections or benefits of the
Act32 In fact, during the course of the labor dispute with Di Giorgio, and sub-
sequent to the commission of the alleged unfair labor practices, Farm Union
and Teamsters 87 filed with the Regional Director petitions for certifications as
the representatives of the workers within the respective alleged appropriate bar-
gaining units. Each of these Respondents also filed charges against Fruit
Corporation, alleging a refusal to bargain collectively. Both the petitions and
11 Counsel for Di Giorgio denied that any bargaining demand had been made by Teamsters
87, and the record contains no proof one way or the other of a specific demand by that
Respondent . It is nevertheless clear that Teamsters 87 was and is seeking recognition by
Fruit Corporation because (1) it has engaged in primary picketing; (2) it and Farm
Union each filed with the Regional Director charges that Fruit Corporation refused to
bargain collectively, as discussed below, and Fruit Corporation was aware of those charges ;
(3) those two Respondents also filed petitions for certification ; and (4) the General Counsel
stated that his efforts to settle the issues in this case were unfruitful because, at a con-
ference held for that purpose, Teamsters 87 and Farm Union took the position that Fruit
Corporation should bargain with them.
11 Section 2 (3), so far as is pertinent, provides that: "When used in this Act . . . the
term `employee ' . . . shall not include any individual employed as an agricultural
laborer. . . .
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charges were dismissed by the Regional Director upon the ground that the
workers are agricultural laborers. Upon appeals by those Respondents on the
petitions to the Board and on the charges to the General Counsel, the rulings of
the Regional Director were affirmed.18 This case was tried on the theory that
all members of Farm Union and Teamsters 87 working for Di Giorgio are indeed
agricultural laborers 14 and, as discussed under "Conclusions" below, one of
the principal issues is whether each of_these Respondents, although not qualified
to utilize the procedures of the Board under Sections 8 (a) and 9 (a) to (c)
in order to establish its claimed majority status and to require that Fruit Cor-
poration bargain with it, nevertheless may be prosecuted under Section 8 (b)
because of its conduct intended to achieve recognition."
In considering the events related below, it should be borne in mind that Team-
sters 87 is alleged to have engaged in unfair labor practices only in connection
with its primary picket line at Di Giorgio, the scene of the primary dispute. On
the other hand, Farm Union is not alleged to have engaged in unfair labor prac-
tices by picketing at Di Giorgio or by any other activities at the scene of the
primary dispute. Instead, Farm Union's alleged illegal conduct occurred some
months after commencement of the strike at the premises of Swiss Colony and
Safeway, the employees of whom are represented by Wine Workers and Teamsters
848, respectively.
B. The activity of Teamsters 87 at Di Giorgio
The activity of Teamsters 87 about which the General Counsel complains is not
the bare existence of its joint picket line with Farm Union at Di Giorgio, nor its
picketing at times when truck drivers , not members of Teamsters 87, approached
the line to make deliveries to, or to , receive shipments from, Di Giorgio . Instead,
the activity complained of involves the expressed or implied threat of discipli-
nary action to members of Teamsters 87, employed by four employers, as a deter-
rent to their crossing the picket line at the scene of the primary dispute , and the
imposition of discipline upon one member who crossed it . The events are dis-
cussed under the separate headings of the four employers.
1. Turner Brothers
Turner Brothers, a partnership of Crawford and Marvin Turner, is engaged
in the trucking business. At all times material, its business was exclusively
that of hauling grapes and other agricultural products for farmers in the local
13 Farm Union filed a petition and charge in Cases Nos. 21-RC-456 and 21-CA-182;
respectively . Teamsters 87 filed its petitions and charge in Cases Nos. 21 -RC-436 and
21-CA-133, respectively. On or about October 27, 1948, the General Counsel affirmed
the Regional Director 's refusal to issue complaints on the charges . On February 14, 1949,
the Board affirmed his refusal to hold a hearing on the petitions for certification.
14 Counsel for all parties, except Teamsters 87, entertain no doubt that the workers
are agricultural laborers . Counsel for Teamsters 87, while professing a contrary view as
to the persons it claims to represent , accepted the rulings of the Regional Director as
controlling in this case. For a discussion of the boundary lines between "employees" and
"agricultural laborers," see Di Giorgio Fruit Corporation, footnote 7, supra, where the
Board, contrary to Di Giorgio's contention, found that Di Giorgio's cannery workers in
Florida are "employees." In its Decision, the Board said : "The position of the Employer
[Di Giorgio] is that it is a farmer engaged in the production, cultivation, growing, and
harvesting of its own agricultural products on its own farms . . . and that the em-
ployees engaged in such canning operations are agricultural laborers and therefore , exempt
under the National Labor Relations Act from the authority and jurisdiction of the Board."
15 Section 8 (b) lists the unfair labor practices which may be committed by a labor
organization.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 733
area of Kern County, California. Turner Brothers does not have a collective
labor agreement with any union, but some of its truck drivers are members of
Teamsters 87.
During September and later months of 1947, Turner Brothers was employed
by Fruit Corporation to haul grapes from its ranches to Wine Company for proc-
essing into wine, On October 1, the date that the strike and picketing commenced,
two truck drivers, Norman Turner, not a member of Teamsters 87, and Hender-
son Duren , who is a member, approached the picket line with loads of grapes.
They stopped their trucks near the line and talked with the pickets, who said
that it would be unfair to go through the line and that, if "you go through it you
are a scab." 18 The testimony of N. Turner establishes that he and Duren were not
threatened by the pickets, but that they made no attempt to deliver the grapes
until several hours later. At that time, both the local sheriff, who was present,
and the pickets told them to cross the line. They did so;
Early the next day, October 2, N. Turner, Duren, Roy Turner, and Lawrence
Van Ness, all drivers for Turner Brothers, approached the line of about six
pickets with loads of grapes, and parked their trucks by the side of the public
highway. Of these drivers, all but N. Turner were members of Teamsters 87, and
Robert Pentzer, then secretary-treasurer of Teamsters 87, told them that if they
did not observe the picket line their membership books would be withdrawn.
Later that day, the drivers crossed the line without difficulty.17
On October 3, Roy Turner returned to Di Giorgio with another load of grapes
and, as he testified, he had no "trouble getting by the picket line. . . . " He con-
tinued to haul grapes for more than a month thereafter, and Duren continued
to haul them until mid-December. So far as appears, there were no further
incidents involving them at the picket line, but as described below Roy Turner
received disciplinary action for not having observed the line.
On October 20, Crawford Turner, one of the partners, met Pentzer by appoint-
ment pursuant to Pentzer's request. Pentzer asked that Turner Brothers coop-
erate with Teamsters 87 by ceasing to haul grapes for Fruit Corporation, and
Crawford Turner replied that he would consider the request, but doubted that
he would comply therewith. Pentzer then said that the drivers for Turner
Brothers who were members of Teamsters 87, if they continued to cross the
picket line, "would probably lose their books." Thereafter, Crawford Turner
informed his partner and their drivers of the conversation with Pentzer 18
16 The findings respecting events of October 1 are based upon the testimony of N. Turner
and Duren , both witnesses for the General Counsel.
17 Teamsters 87 denies that Pentzer threatened to withdraw the membership books of
persons who crossed the line , and Pentzer, who is now deceased , could not be called as a
witness by that Respondent. Teamsters 87 did call as a witness, however, the widow of
Pentzer to establish that he had been with her at certain times, and Teamsters 87 also
called as a witness one of its office employees , Catharyn Hogan , to establish that Pentzer
was in his office at other times.. I accept the testimony of the General Counsel's wit-
nesses with respect to Pentzer's presence and remarks at the picket line because (1) the
members of Teamsters 87 who testified credibly for the General Counsel were definite
in the identification of their own secretary -treasurer ; ( 2) I am not satisfied from Mrs.
Hogan 's testimony concerning Pentzer 's usual activities that he was in his office at all
times described by her; and (3) it is not inconsistent with Mrs. Pentzer's testimony that
Pentzer was at the picket line on October 2.
Is The findings respecting the conversation between Crawford Turner and Pentzer are
based upon the credible testimony of the former . Teamsters 87, which denies that Pentzer
made any threat concerning withdrawal of the books , was unable to call Pentzer as a
witness because of his death . It did , however, call Lewis E . Stobie , a vice president and
business agent of Teamsters 87, who was present at the conversation . Stobie testified
that Pentzer asked C. Turner to cease hauling the grapes , but did not speak of with.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The constitution of Teamsters 87's parent body, International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , provides in
Article XVIII , Section 6:
Any member who . .. knowingly goes to work or remains in the em-
ployment of any person, firm or corporation , whose men are on strike or
locked out, unless he has permission of the International, the Joint Council
or his local union, may be tried by the Executive Board of his local
union... .
In accord with this provision, as well as other portions of the constitution and
bylaws, Teamsters 87 freely concedes that the conduct of Roy Turner in crossing
the picket line constituted a violation of his oath of loyalty to it, and conduct
unbecoming a member, and that Roy Turner was subject to trial under appli-
cable provisions of the constitution and bylaws. Pursuant to these provisions,
on October 3, five members of Teamsters 87 filed with the recording secretary
a written charge against Roy Turner that he had crossed the picket line of
Teamsters 87 on that day and requested that he be cited to appear before the
Executive Board to answer the allegation. On the same day, by letter, Roy
Turner was notified of the charge and that the Executive Board would consider
the matter on October 15. He failed to appear, however, and the matter was
heard in his absence. On October 16, he was given written notice that he had
been fined $1,000, and that he had the right to appeal under an appropriate pro-
vision of the International's constitution. At the time of the hearing in this
matter, Roy Turner had not paid any portion of the fine. During March 1948,
he tendered a payment of dues, but the payment was rejected with the state-
ment that it could not be accepted until the fine "is cleared on our books."
Although Roy Turner is no longer a member in good standing, Teamsters 87 has
made no effort to deprive him of job opportunities.
2. Arvin Line
Arvin Line is a transportation company, located at Bakersfield , California,
about 17 miles from Di Giorgio , and at all times material was engaged in hauling
general merchandise in and about Bakersfield . It has a collective labor agreement
with Teamsters 87.
During early October 1947, John Gladwell, a member of Teamsters 87 and
a driver for Arvin Line, went to Di Giorgio Farms to deliver machinery to Wine
Company. Upon seeing the pickets, Gladwell turned around and proceeded back
to Bakersfield, About 10 days later, Gladwell saw Joe Hickman, president of
Teamsters 87, at the union office and inquired whether he, Gladwell, should
cross the line, Hickman replied that Gladwell "should refrain from making
any deliveries there as long as the picket line remained." Is
drawing the membership books of drivers who crossed the line . In view of the credible
testimony of C. Turner , the remarks of Pentzer on the picket line , as found above, and
other remarks of Joe Hickman, president of Teamsters 87, which reflect the attitude of
this Respondent toward its members' crossing the picket line, as discussed below, I accept
Turner ' s testimony as true.
is About January 30, 1948, Arvin Line had another shipment consigned to Wine Com-
pany. George S. Crozier , president of Arvin Line , telephoned the office of Teamsters 87
and talked with an unidentified girl , who said that she would connect him with Pentzer,
the secretary -treasurer of that Respondent . Crozier then talked with a man who told him
that , so long as the picket line was, in existence , drivers for Arvin Line could not make
deliveries . Crozier could not identify the man with whom he talked , except by the remark
of the unidentified girl that she would connect him with Pentzer. For this reason, and
also because I consider the Incident of minor importance, I think that Crozier 's testimony
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 735
3. Oilfields Trucking Company
Oilfields Trucking Company, of Bakersfield, herein called OTC, is engaged in
the transportation of petroleum products and oil fields equipment within the
States of California, Arizona, and Nevada 20
About January 28, 1948, Wayne Gingery, chief dispatcher for OTC, received
an order to transport 5,000 gallons of light fuel oil from the refinery of Union
Oil Company in Bakersfield to Wine Company, a distance of about 17 miles.
Gingery was aware of the picket line at Di Giorgio Farms, but was uncertain
whether it embraced Wine Company, and he telephoned Joe Hickman, president.
of Teamsters 87, to ascertain the fact. Hickman told him that the picket line
covered all phases of the Di Giorgio's business, and that members of Teamsters,
87 were required to respect the line. Gingery then pointed out that OTC, as
a common carrier, was obligated to attempt all deliveries, and Hickman replied
that if the attempt were successful, OTC would be subject to a picket line by
Teamsters 87 at its own place of business.' Gingery also talked with Jonas M.
Hildremyer, one of OTC's superintendents, and Burl Canary and John Byrd,
two of OTC's truck drivers who are members of Teamsters 87. Gingery directed
the drivers to obtain the oil at the refinery for delivery by them to Wine Company,
and arranged for Hildremyer to be present at the picket line and to take
pictures in the event that the drivers should be stopped at the line"
Later that day, Hildremyer, who had preceded Byrd and Canary to the
picket line, talked with two pickets at the entrance to Wine Company, who,
told him that there were pickets at all entrances to the Di Giorgio property
and that they were not permitting any deliveries to be made. At that point
Byrd and Canary arrived, and there was a further conversation with the pickets.
Hildremyer told them that OTC was obligated to attempt the delivery, but
that it was "up to" Byrd and Canary whether they chose to cross the line. The
pickets responded that they expected all members of Teamsters 87 to respect
their picket line, that Byrd and Canary should know the rules of Teamsters 87,
but that if Byrd and Canary nevertheless chose to enter the premises the pickets
is of little value . The record , incidentally , does not disclose the source of the shipment
of January 30, nor the source of the earlier shipment handled by Gladwell, and there is no
proof that Arvin Line withheld delivery of any interstate shipment to Di Giorgio because
of the picket line . Teamsters 87 places its defense , in part , upon this factor. See
footnote 42, infra.
20 It is not established that the interstate phases of OTC' s business were interrupted
by Teamsters 87's dispute with Di Giorgio, and this is a point upon which that respondent
relies. See footnote 42, infra.
1 The findings respecting the conversation between Gingery and Hickman are based
upon the credible testimony of Gingery. On the other hand, Hickman acknowledged that
he talked with"Gingery about the deli4ery of oil, but he denied saying that members of
Teamsters 87 were required to respect the picket line and that, if the delivery were made,
OTC might be subjected to a picket line. Hickman ' s denials were unconvincing. His
demeanor on the witness stand and his attitude and answers on cross-examination did not
present the picture of on honest, forthright witness, and I reach this conclusion wholly
aside from the fact that his abrupt departure from the hearing room prevented a thorough
cross-examination of him.
Both Canary and Gingery were witnesses for the General Counsel. Their testimony
is in conflict in one respect, however. Thus Canary testified that Gingery, in the presence
of Hildremyer, told him that a delivery had to be attempted in order to protect OTC'g
rights as a common carrier, but that if the pickets were present there should not be "even
an attempt to go through." On the other hand, Gingery testified that he did not say that
it would be unnecessary to make the delivery. Hildremyer, who also was a witness for the
General Counsel, did not testify concerning the point. In view of the events at the
picket line when Byrd, Canary, and Hildremyer were there, as described below, I accept
the testimony of Canary and find accordingly.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not stop them. As is clear from the testimony of Canary and Hildremyer,
the drivers had no intention of crossing the line. It arranged that Hildremyer
should take photographs, which would establish that the truck had been stopped
by the pickets, and seek thereby to protect the operating rights of OTC. Ac-
cordingly, Byrd and Canary entered the truck and drove it toward the pickets.
As they approached, the two pickets held up their hands, the truck stopped, and
Hildremyer took the pictures. Byrd and Canary then returned the load of
oil to Union Oil Company.
4. Pacific Motor Trucking Company
'Pacific Motor Trucking Company , a corporation , herein called P11T, is a
wholly owned subsidiary of Southern Pacific Railroad . It is engaged in per-
forming a pick-up and delivery service for its parent corporation and the Santa
Fe Railroad at various points along the lines of those railroads . It has a
division at Bakersfield from which its operations are conducted in the nearby
area, and its truck drivers there are members of Teamsters 87.n
On February 6, 1948 , Walter J. Kovolski , a driver for PMT, went to Wine
Company to make a pick -up of an unidentified nature. He parked his.truck
across the public highway from the entrance where five pickets were engaged
in patrol . Kovolski got out of his truck and approached the pickets , pencil and
paper in hand , and one of them commented to him , "you don't look [like]
the type of fellow that would attempt to go across the picket line." Kovolski
made no reply , other than to request the names of the five pickets , as he had
been directed to do by his superior , Joe Brong . He wrote down their names,
returned to, his truck , And departed without making any effort to cross the
line."
On February 10, Kenneth M. Bailey, another driver for PMT, went to Wine
Company to make a pick-up of an undetermined nature. He talked with two
pickets, who identified themselves as members of Teamsters 87, and inquired
whether he "could go through and make a pickup ." The pickets replied that a
strike was in progress and that, as a union member , he could not cross the line.
Thereupon , acting upon the instructions of his superior , Joe Brong , Bailey
asked the pickets to write upon a paper the fact that he had been stopped at
the line. They complied with his request , but the paper has been lost and was
not offered in evidence . Its exact contents cannot be determined. On the
23 It is not established that the interstate phases of PMT's business were interrupted by
Teamsters 87's dispute with Di Giorgio, and again this is a defense upon which that
Respondent relies. See footnote 42, infra.
24 Kovolski appeared as a witness for the Generals Counsel on two occasions. On his
first appearance, when he testified as; to the events of February 6, he said that prior to
going to wine Company on that day, he telephoned the office of Teamsters 87, asked to
talk with someone in "authority" who could tell him whether he should cross the picket
line and, in the absence of such person, talked instead with a girl who told him that his
membership book would be "lifted" if he crossed the line. Kovolski testified further that
he did not know the name of the girl, but that he recognized her voice because he invariably
had paid dues to her and that she wore eyeglasses. About 1 month after first testifying,
Kovolski returned to the witness stand and stated that he had visited the offices of
Teamsters 87, had talked with the girl he had in mind, and he identified her as Catharyn
Hogan, then cashier for Teamsters 87. Hogan, however, testified for that Respondent that
on no occasion did she tell a member of Teamsters 87 that his book would be "lifted" if
he crossed a picket line. The record established that Hogan does not wear' eyeglasses,
but that Kovolski did pay his! dues to her on nearly all occasions. On the state of the
record, I cannot find that Kovolski talked on the telephone with Hogan on February 6.
In any event, a statement to him that his book would be "lifted" if he crossed the line,
.for reasons set forth below, is of slight materiality.
INTERNATIONAL BROTHERHOOD OF- TEAMSTERS, ETC. 737
following day, February 11, Bailey returned to Wine Company to make an-
other pick-up, again of an unidentified nature, and substantially the same events
transpired"
C. Events at Swiss Colony
The events at Swiss Colony involve two Respondents : (1) Farm Union, pickets
for which followed two shipments of wine from Di Giorgio to Swiss Colony's
plant at Clovis, California, and there engaged in picketing, and (2) Wine Work-
ers, which has a collective labor agreement with Swiss Colony on behalf of all
employees at the Clovis plant, with exceptions not here material.
During early February 1948, Henry A. Bonzagni, superintendent of the Clovis
plant, talked with Avis Ethridge, business agent of Wine Workers, about the
delivery of wine from Di Giorgio. Ethridge expressed the belief that Faria
Union would picket the Clovis plant if Swiss Colony purchased the wine and
that the members of Wine Workers employed by Swiss Colony would respect the
picket line of Farm Union. Shortly thereafter, there was another conversation
in which Bonzagni and other officials of Swiss Colony participated with Ethridge
and Wallace D. Henderson, a vice president of Wine Workers' parent body.
Ethridge and Henderson said on this occasion that "they didn't think there was
much they could do about it; they thought the men would respect the picket line."
On February 26, a Thursday, in the late afternoon, a single tank car of wine
arrived from Di Giorgio. Pickets representing Farm Union took positions out-
side the plant and on the next day, Friday, the employees of Swiss Colony refused
to cross the picket line. The car was unloaded by supervisory personnel, how-
ever, and the pickets departed. On the following Monday, the next regular
working day, there were no pickets present and the employees returned to work.
Robert D. Rossi, the bottling plant superintendent at Clovis, testified for the
General Counsel that there were only two or three pickets and that he observed
no threat of force or violence, or other than peaceful activity, by them.
During early March, and prior to the arrival of the next shipment of wine,
Gertrude Schmitz, a member of Wine Workers employed by Swiss Colony, talked
with Ethridge, the business agent of Wine Workers. She inquired if Farm
Union's picket line had been recognized as "legal" by Wine Workers' parent body,
and received an affirmative answer. She inquired also whether she and other
employees of Swiss Colony could complete a working day if they commenced it
prior to the next arrival of Farm Union's pickets, and Ethridge answered : "Yes,
if you bring your lunch you can stay in the building and work until 5: 00 o'clock,
and that is all."
22 On February 2, another driver for PMT, Golden Bush, went to Wine Company to
make a pick-up of 10 empty steel drums and an acid carboy for transportation to Los
Angeles. Bush made no effort to cross the picket line. Present at the line were Bush's
superior, Joe Brong, and Joe Hickman, president of Teamsters 87. Bush was called as a
witness by the General Counsel to establish that (1) Hickman told him that, as a member
of Teamsters 87, lie "was not to cross the picket line," and (2) he did not cross it because
of a fear of disciplinary action by Teamsters 87. Bush testified that he did not cross
the line, in part because of such a fear, but he denied that he talked with Hickman Oil
that occasion. The General Counsel sought to impeach him by the use of two affidavits
-which he gave to the General Counsel, and a written statement made by him. Bush flatly
repudiated the statement and affidavits in large measure, and the only finding in support
of the allegations of the complaint which can be made on the basis of his testimony is
that he did not seek to cross the picket line, in part because of the stated fear. Indeed,
the affidavits themselves are contradictory concerning the alleged remark of Hickman
to him in that Bush stated in one of them that he could not "recall anybody telling . . .
[him] definitely not to cross the picket line ," and in the other that Hickman told him
.'Not to cross the picket line...."
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 4, 12 tank cars of wine arrived from Di Giorgio. Several pickets
representing Farm Union promptly commenced patrolling the entrances to Swiss
Colony, but, according to J. J. Allegretti, assistant superintendent of the plant,
they did not walk in such manner as to block the entrances had anyone chosen
to move past them. Shortly thereafter, Joe Didonato, a. cellar foreman, and
Tommy Farino, a subforeman, both members of Wine Workers, and Rube Turner,
an employee who is a shop steward for Wine Workers, came to Allegretti and
said that the wine from Di Giorgio would not be unloaded, that the men refused
to work behind a picket line. Allegretti suggested that they go to the office of
Superintendent Bonzagni, and there Turner informed Bonzagni that "the boys
are walking out." Upon leaving Bonzagni's office, Turner went into the plant
and by a motion of his hand signaled to a group of employees. They left the
plant.
Gertrude Schmitz, above mentioned, is a floorlady in the bottling department.
Shortly before the wine arrived on March 4, Schmitz was told by Rube Turner
that the men were "going to walk out" upon arrival of the wine. After its
arrival Turner told her that the men were leaving, and Schmitz, who testified
that she and her subordinates did not wish to work behind a picket line, turned
to an employee and directed that the flow of wine in the bottling department be
cut off. She also told her subordinates to perform the cleaning operations which
are usual at the end of a day's work. Within a few minutes, Schmitz and her
subordinates left the plant together. Prior to the usual quitting time that day
all employees, with the exception of two, had left the premises . These two
employees remained to shut down the machinery.
The picketing by Farm Union at Swiss Colony continued from March 4 through
March 10, and the only employees who crossed the picket line were nonmembers
of Wine Workers. Indeed, at a meeting of Wine Workers early that month,
Ethridge, the business agent, reported that the membership at Swiss Colony had
observed the picket line 100 percent. During the approximately 1 week of pick-
eting, supervisory personnel unloaded all but one of the cars of wine, and the
pickets departed. On the next morning, March 11, in the absence of the pickets,
the employees returned to work .26
D. Events at Safeway
Here again the events involve two Respondents: (1) Farm Union, pickets for
which followed two truck loads of potatoes from Di Giorgio to Safeway's distri-
bution warehouse in Los Angeles and there engaged in picketing; and (2) Team
21 In addition to being the representative of certain employees of Swiss Colony, Wine
Workers has a collective bargaining agreement with Di Giorgio Wine Company on behalf
of the winery employees. The record contains considerable evidence offered by the General
Counsel respecting a strike by Wine Workers at Di Giorgio, which is not alleged to have
been an unfair labor practice , and of disciplinary action and the threat thereof, by Wine
Workers against its members who chose to continue at work for Wine Company, notwith-
standing the picket line of Farm Union and Teamsters 87. The evidence was not offered
to establish any unfair labor practice at the scene of the primary dispute. It was offered,
instead, as a part of the proof that Wine Workers, by threats of disciplinary action,
induced and encouraged its members at Swiss Colony to engage in a strike there, about 100.
miles distant from Di Giorgio . The General Counsel stated , however , that if the record
established his principal contention with respect to Wine Workers, namely; that it had
engaged in a strike at Swiss Colony, then the evidence mentioned in this footnote became
of minor importance . Since it is clear that Wine Workers did engage in a strike at
Swiss Colony, as more fully discussed below, the evidence respecting its activities at
I)i Giorgio will not be set forth or evaluated.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC . 739
sters 848, which has a collective labor agreement with Safeway on behalf of its
truck drivers, and some of whose members stopped work at Safeway for a short
period after the arrival of the potatoes.
On April 29, 1948, Albert C. Gould, an independent trucker, and Lawrence E.
McCann, a driver for another trucker, George Wong; went to Di Giorgio Farm,,;
to obtain loads of potatoes for delivery to Safeway. So far as the record dis-
closes, they crossed the picket line without incident. They proceeded to Los
Angeles and were followed by three pickets, including Al Haxton, a business
representative of Farm Union's parent body, who was on temporary loan to Farm
Union as an organizer. Haxton informed Donald C. Moser, a supervisory em-
ployee of Safeway, of the strike at Di Giorgio, asked that the potatoes not be
unloaded, and threatened to picket Safeway if they were unloaded. Because the
business activity at the warehouse was so great that the trucks could not be.
unloaded promptly, and also in order to avoid a picket line at that moment,
Moser had Gould and McCann drive their trucks outside the premises and await
an opportunity for unloading. The hour then was about 6: 30 p. m.
At about 7: 45 o'clock, Gould again drove his truck onto the premises and
Haxton inquired of Moser whether the potatoes would be unloaded. Moser tele-
phoned his superior, Melvin B. Hollinger, and arranged for Hollinger and Haxton
to talk over the telephone. Haxton stated to Hollinger that picketing would
take place if the potatoes were unloaded, but Hollinger resumed his telephone
conversation with Moser and directed that the unloading take place. The
unloading of Gould's truck commenced, the work being done by "swampers"
who were employed by Gould, rather than by Safeway, and the picketing com-
menced simultaneously. The picketing was of a peaceful nature.
At the start of the picketing, there were 10 to 12 Safeway trucks within the
premises, being loaded with merchandise for delivery to Safeway's retail stores.
The drivers, all members of Teamsters 848, could see the pickets walking past
the exit. The record does not disclose that the drivers were aware of the purpose
for which Farm Union was picketing, but it is clear that not a single driver passed
the picket line. At about 8: 30 p. m., less than 1 hour after the commencement
of the picketing, the potatoes had been substantially unloaded from Gould's
truck. Thomas Pitts, an official of Teamsters 848, then arrived at the scene.
Pitts asked Gould whether he had crossed the picket line at Di Giorgio Farms
to obtain the potatoes, and when Gould replied affirmatively, Pitts said that none
of Safeway's trucks would leave the premises until the potatoes had been re-
loaded on Gould's truck and removed from the warehouse.
Soon thereafter, Pitts talked to a group of men, including Hollinger, who
had come to the warehouse, Moser, Ralph Stonebreaker, a supervisory employee,
Homer McChesney, superintendent of the produce dock, and Dave Kent, "Ossie"
Osborne, and Bob McMichael, truck drivers for Safeway. To this group, Pitts
again said that no Safeway truck would leave the premises until the potatoes
had been reloaded and removed.
About six trucks, loaded with merchandise and ready for departure, had
been taken by their drivers from the produce dock to a point near the exit,
where the drivers stopped just short of the picket line.
The potatoes in McCann's truck were never unloaded, and at or about 10
o'clock the reloading of potatoes onto Gould's truck was begun. With the com-
mencement of the reloading, the picketing ceased and the Safeway drivers
took their trucks from the premises. Gould and McCann departed about 1 hour
later, and returned the potatoes to Di Giorgio.
877359-.-50-vol. 87--48
'740 .'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions
1. Farm Union
Section 8 (b) (4) (A), which all Respondents are alleged to have, violated,
provides that it "shall be an unfair labor practice for a labor organization or its
.agents":
to engage in, or to induce or encourage the employees of any employer to
engage in, a strike or a concerted refusal in the course of their employment
to . . . transport, or otherwise handle or work on any goods . . . where an
object thereof is: . . . forcing or requiring . . . any employer or other
person to cease .. . transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease doing business
with any other person;
Prefatory to a discussion of the legal problems, it should be recalled that the
labor dispute between Di Giorgio, on the one hand, and Farm Union and Team-
sters 87, on the other, arose from the refusal-of Fruit Corporation to bargain
collectively.2' The strike by those Respondents, and the latter alleged illegal
activity of all Respondents, had as its purpose to force Fruit Corporation to
bargain. Farm Union's part therein, alleged to have been unlawful, was to picket
at the premises of Swiss Colony and Safeway. Farm Union has raised a num-
her of defenses, constitutional and otherwise. The former will be reserved for
the courts in accord with Board practice, and the remaining defenses will be
considered in part.
The procedures of the Board, as we have seen, are not available to Farm
Union and Teamsters 87. True, the Act sets forth standards of conduct for
both employers and labor organizations, including the obligation of each to
bargain collectively with the other, as means of achieving the peaceable adjust-
ment of labor disputes and thereby preventing obstructions to the free flow of
commerce. But the Act does not apply to all employers. Farmers in their rela-
tions with the agricultural laborers whom they employ, are not subject to the
standards of conduct provided for other employers. This is so because agricul-
tural laborers are not "employees" within the meaning of the Act 28
The General Counsel argues that the exclusion of agricultural laborers from
the definition of "employees," while resulting in the disqualification of Farm
Union and Teamsters 87 from the benefits and protections of the Act in this
dispute, furnishes no immunity to those and other respondents for their con-
duct. Curiously, it is precisely this disqualification which results in this litiga-
tion. As we shall see, were it not for the disqualification, there would not be a
case against any of the Respondents.
According to the General Counsel, the denial of the benefits of the Act to Farm
Union and Teamsters 87 does not free them from its prohibitions because the
prohibitions are imposed upon "labor organizations" and "their agents," and
not upon "employees." On the other hand, Farm Union contends that it is not a
labor organization within the meaning of the Act and, therefore, is not subject
to the prohibitions. We shall examine the issue.
ar As mentioned above, both the General Counsel and Di Giorgio contend that Di Giorgio's
refusal to bargain is immaterial. As also mentioned, however, the reason for its refusal
and its immunity from the jurisdiction of the Board, as distinguished from the bare refusal,
is of considerable materiality.
28 Farm Union contends that under the law of California, although not that of the
United States, Fruit Corporation is obligated to bargain collectively with Farm Union
and Teamsters 87.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 741
Farm Union has no • members other than agricultural laborers in the employ
.of Fruit Corporation. Its membership contains no "employees." Section 2 of
the Act provides that; "When used in this Act-"
(5) The term "labor organization" means any organization of any kind,
or any agency or employee representation committee or plan, in which em-
ployees participate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work. [Emphasis
supplied.]
Obviously, Farm Union is an organization which exists for the quoted pur-
poses, but since its members are not "employees" it is not a labor organization
within the literal meaning of Section 2 (5) and therefore may not avail itself
of the benefits and protections of Sections 8 (a) and 9 (a) to (c).29 Neverthe-
less, according to the General Counsel, it is subject to the prohibitions of Sec-
tion S (b). The logic of the General Counsel's theories does not support the
proposition that Farm Union is subject to each and every provision of Section
8 (b), however. Thus, Farm Union could not "restrain or coerce" Fruit Corpo-
ration's workers in violation of Section 8 (b) (1) (A) because Fruit Cor-
poration has no "employees" in the alleged appropriate units. Nor could
Farm Union "cause or attempt to cause" Fruit Corporation to discriminate
"against an employee" in violation of Section S (b) (2) for the same reason.
Nor could it violate Section 8 (b) (3) by refusing to bargain collectively with
Fruit Corporation, as the General Counsel, by implication, certainly held in dis-
missing the charges filed by Farm Union and Teamsters S7 against Fruit Cor-
poration. And once more, Farm Union could not violate Section 8 (b) (5)
by requiring "of employees" the payment of an excessive or discriminatory fee,
as provided therein. The query then is whether Farni Union can violate one
portion of Section 8 (b), namely, (4) (A), the prohibition of secondary boycotts.
Although the issue is one of first impression before the Board, it has been com-
mented upon by writers, adversely to the General Counsel." Morever, the legis-
lative history, while silent on the exact issue, nevertheless disputes his conten-
tion. Let us examine an analogous situation.
Prior to enactment of the Labor Management Relations Act, 1947, when
the Board's jurisdiction in unfair labor practice cases was limited to prac-
tices by employers, the Board had no jurisdiction in matters involving "any
person subject to the Railway Labor Act." This was so because such persons
were excluded from the definition of employer in Section 2 (2). With the
amendments to the Act in 1947, the excluded categories under the definition of
employee were broadened by the following language: ". . . or any individual
29 Section 8 (a) as stated , proscribes unfair labor practices by employers . Section 9
deals with petitions for certification . Section 8 ( b) proscribes unfair labor practices by
labor organizations.
30 See Witney , Agricultural Workers Under National Labor Relations Laws, Institute of
Labor and Industrial Relations , University of Illinois Bulletin , March 1948 , in which he
concludes that "labor organizations composed of farm workers are not affected by the
restrictions which the new law placed on labor organizations ." See also Interim Report,
issued December 2, 1948 , by a Subcommittee of the Committee on Education and Labor
of the House of Representatives , in its investigation of labor practices in the food industry,
80th Congress , 2nd Session , House of Representatives , Committee Report No. 8, in which
it is said : "While labor unions cannot , under the Taft-Hartley Act, file charges against
farmers with the National Labor Relations Board , neither can farmers secure protection
or redress from the Board or the courts when they are in jeopardy or have suffered
damages."
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by an employer subject to the Railway Labor Act. . . ." Thus,
with the amendments, we find that railroad workers for the first time are not
"employees" within the meaning of the Act. Since the Board has never had
jurisdiction over railroads, the amendment certainly was unnecessary to em-
phasize that fact. The purpose of course was 'otherwise, and is to be found in
Senate Report No. 105 on S. 1126, as follows :
(C) The exemption of employees of employers subject to the Railway
Labor Act is to make it perfectly clear that in providing remedies for unfair-
labor practices of unions and their agents it was not intended to include such
employees. [Emphasis supplied.]
The quoted language should "make it perfectly clear" that the Board has no
jurisdiction over unfair labor practices committed by labor organizations whose
members are employed by persons subject to the Railway Labor Act. If doubt
remained, it would be removed by the following excerpts from the Congressional
Record of June 6, 1948:91
Mr. MCGRATrI. I note that the Senator [Murray] is referring to the rail-
way industry. It is my understanding that railway unions are exempt from
the provisions of this statute. Am I correct in that understanding?
Mr. Ivies. The answer to the question . . . is "Yes."
* * * * *
Mr. TAFT. I want to point out that railway labor has never been cov-
ered by the Wagner Act... .
It is to be noted that the method utilized by Congress to "make it perfectly
clear" that unions of railway workers are exempt from the prohibitions of unfair
labor practices by labor organizations was to exclude their members from the
definition of "employees." To Congress it must have appeared that in order to
exempt a union from the prohibitions of the Act, it was necessary only to exclude
from the definition of "employees" the members for whom a union acted. It fol-
lows that because agricultural laborers were excluded from that definition in
the original legislation and, to use the words of Senator Taft, have "never been
covered by the Wagner Act," the unions of agricultural laborers are similarly
exempt. I find no indication that Congress intended to place unions of agri-
cultural laborers in a special category of "Now we see you ; now we don't,"
depending upon through which eye, Section 8 (a) or 8 (b), one were looking, and
thereby to nullify the logic of its position respecting railway unions.92 Moreover,
81 93 Cong. Rec. 6657-8.
12 The General Counsel argues that the exclusion of agricultural laborers from the defini-
tion of "employees" does not exempt "them entirely from the Act." It exempts then,
he says, "only from the benefits of the Act." He advances as an analogous situation the
argument that "an admitted labor organization which has not complied with [the filing
requirements] of Section 9 (f), (g), and (h) could not use the machinery of the Act,"
and that "I doubt if anyone would contend, because they may not have the benefits of the
Act, that they would be in a position to engage in conduct proscribed by Section 8 (b),"
The lack of analogy between, a union of agricultural laborers, excluded from the benefits
of the Act because of their inherent disqualification, and a labor organization of "em-
ployees" which chooses of its own. volition not to comply with the filing requirements, is so
manifest as not to require discussion. Moreover, Farm Union, in order, it said, to file its,
petition for certification of representatives and its charge that Fruit Corporation had'.
refused to bargain collectively, met the filing requirements, and the parent body of Farm
tmnion, National Farm Labor Union, also has net the requirements. Indeed, it was a part
of the General Counsel's proof that they had done so, and die argues therefrom that they
are labor organizations within the meaning of the Act because no organization but a labor'
organization would meet the filing requirements.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 743
:a portion of the debate in the Senate supports this conclusion. Thus, Senator
Pepper argued that the amendatory legislation would make unlawful the peaceful
!efforts of.strikers to enlist the aid of employees of a secondary employer in a
dispute with a primary employer who "steadily refuses to recognize a union."
Senator Taft, one of the principal authors of the amendatory legislation,
xesponded:33
In the first place, of course the Senator's first assumption is not correct,
because under the Wagner Act the workers have the right to organize and
to require the employer to bargain with them ; and if the employer fails or
refuses to do so, his action in that respect is an unfair labor practice. . . .
A reasonable inference to be drawn from Senator Taft's response is that he did
not envisage the application of Section S (b) (4) (A) to any union which was
inherently disqualified from utilizing the processes of the Board.
The General Counsel further contends that Farm Union, although it has no
"employees" as members, nevertheless does not exclude them from membership
under any provision of its constitution and bylaws, and that since "employees"
are not ineligible for membership and some day may be members, Farm Union is
a labor organization within the meaning of Section 2 (5). The General Counsel
also contends that Farm Union's parent body, National Farm Labor Union, which
admits "employees" to membership in one or more of its other locals, is a labor
organization by reason of that fact, and that Farm Union was merely the agent
of its parent body in the effort to organize and represent the agricultural laborers
of Fruit Corporation. The parent body is not a respondent, but since Section 8
(b) proscribes unfair labor practices by a labor organization "or its agents," the
General Counsel argues that lie can proceed against Farm Union as the agent, if
not as the labor organization. These are bootstrap arguments which do not upset
the above conclusion. Technical arguments may be advanced one upon another,
as they have been here, but they do not obscure the real issue. They are "a series
,of interpretations so far-fetched and forced as to bring into ques`ion the candor of
Congress as well as the integrity of the interpretative process." 3i
Finally, Fruit Corporation itself argues that the activities of Farm Union are
"no less harmful" to it than would be a "boycott [of another employer] by a
union composed of employees entitled to the benefits . . . of the Act." Nor, it
may be said, is Fruit Corporation's refusal to bargain with Farm Union any less
harmful to the agricultural laborers than would be the refusal of another em-
ployer, subject to the Board's jurisdiction, to bargain with the labor organization
of his employees. But Fruit Corporation may not have its cake and eat it too.
Farm Union is outside the Act for the same reason that Fruit Corporation is
outside it. I shall recommend that the complaint be dismissed as to Farm Union,
and I find it unnecessary to discuss the remaining defenses advanced by that
Respondent.
2. Teamsters 87
Teamsters 87, it will be recalled, engaged in picketing only at Di Giorgio's
premises, the scene of the primary dispute. The General Counsel does not con-
tend that the picketing itself was an unfair labor practice, but that "the
acts occurring at the picket line constitute a violation" of the Act. He prose-
cuted the allegations against this Respondent upon the theory that there was an
inherent threat of disciplinary action within the constitution and bylaws of
83 93 Cong. Rec. 4323, April 29, 1947.
14 Western Union Telegraph Co. v. Lenroot , 323 U. S. 490 , 508, 65 S. Ct. 335, 344.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters 87 toward' any member who approached the picket line, that expressed',
threats of disciplinary action were made to members at the picket line and at:
other places in the area, and that Roy Turner, who crossed the line with a load
of Di Giorgio grapes, was disciplined for having done so. Teamsters 87, while-
denying that it is subject to the Board's jurisdiction in this proceeding, acknowl-
edges that it is a violation of its constitution and bylaws for a member to cross
its picket line, and it argues that although it may be prohibited from taking
action to limit the job opportunities of an offending member, the Act does not re-
quire it to retain as members persons who disregard the provisions of its consti-
tution and bylaws.
In the Wadsworth case u the Board recently disposed of a similar issue. Mem-
bers Reynolds and Gray saw no merit in the "theory concerning the coercive
implications of peaceful picketing to members of picketing unions," while Chair-
man Herzog disapproved the "doctrine that coercion is to be tested in these situa-
tions by the existence or absence of a picketing union's power to discipline those
whom it is seeking to `induce and encourage' not to cross the picket line." Mem-
bers Houston and Murdock noted "with approval that the majority" members so,
expressed themselves. On the basis of the Wadsworth case, I conclude that the
General Counsel's theory must be rejected here.$6 Nevertheless, the allegations
against Teamsters 87 may not be disposed of summarily.
The doctrine of the Wadsworth case is that peaceful picketing, as a means of"
inducement or encouragement of employees within the meaning of Section 8 (b)
(4) (A), is not protected by the Act's free speech provision, Section 8 (c). Pick-
eting therefore constitutes an unlawful method of inducement or encouragement.
In that case, however, the picketing was conducted at the premises of the sec-
ondary employer, rather than at the scene of the primary dispute. Here, where
the picketing took place at Di Giorgio's, the question is whether the doctrine of
the Wadsworth case applies. The precise point was not argued at the hearing
or dealt with extensively in the briefs because the Wadsworth decision is of more-
recent date. It may be inferred, however, that the General Counsel, aside from
his theory above mentioned, does not contend that peaceful picketing in a primary
dispute, even when utilized to induce or encourage employees of secondary em-
ployers not to cross the picket line, is within the prohibitions of Section 8 (b) (4)
(A). This inference is reasonable because (1) the General Counsel stated at
the hearing that he did not contend that the picketing itself was unlawful; (2j
he so indicated in his brief; a (3) Farm Union maintained the joint picket line
35 United Brotherhood of Carpenters, etc. and Wadsworth Building Company, Inc., et at.,.
81 NLRB 802, decided February 18, 1949.
36 It will be recalled that Hickman, president of Teamsters 87, told Gingery, chief dis-
patcher for OTC, that if there were a delivery of oil to Di Giorgio by OTC, the latter would
be subject to a picket line by Teamsters 87 at its own place of business. I find that this
statement was not a violation of Section 8 (b) (4). (A) because that section does not pro-
hibit inducement or encouragement of employers, as distinguished from employees. Seal-
right Pacific, Ltd., 82 NLRB 271. Cf. also the Wadsworth case, where the Board discussed
at length the question whether one Monroe was a foreman, and concluded that he was an
ordinary employee. This discussion would have been unnecessary if Section 8 (b) (4) (A)
embraced inducement or encouragement of employers.
37 The General Counsel says in his brief : ". . . The legislative history of the Act shows
that Congress did not intend to illegalize strikes against a primary employer, as distin-
guished from a secondary employer, in support of demands for changes in terms and con-
ditions of employment . . . Picketing of the primary employer in such circumstances is
an incident of the right to strike. Just as the right to strike under such circumstances
is protected, so too is the right to picket the primary employer." The General Counsel
also says, as to Farm Union, that it "is left free to use the `traditional modes of commu-
nication' other than picketing the business places of neutral employers, such as Swiss
INTERATATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 745.
with Teamsters 87, but it is not alleged to have engaged in any unfair labor prac-
tice thereby; and (4) there is no allegation that Teamsters 87 or Farm Union so,
engaged when truck driver McCann crossed the line for a load of potatoes.
On the other hand, Di Giorgio takes a contrary position. It argues in its brief
that even "if we assume that the principal purpose of . . . [Teamsters] 87
was a strike for recognition by Fruit Corporation, still the activities ' complained
of fall within the prohibitions contained in Section (8) (b) (4) (A) of the Act."
[Emphasis supplied.] Di Giorgio thus contends that one of the objects of picket-
ing by Teamsters 87 was to force employers to cease transporting Di Giorgio's.
products and that since one object of the primary peaceful picketing "falls
within the objects prohibited in Section 8 (b) (4) . . . such unlawful object is,
sufficient even though it is coupled with or associated with other lawful objects,"
such as the effort to achieve recognition 38 In substance, Di Giorgio.
argues that the right to picket peacefully in primary dispute for a lawful object.
(and here the object was lawful, although unenforceable by Board processes)
is limited to picketing at those times when employees of other employers do
not approach the picket line. The General Counsel, as stated, appears to disas-
sociate himself from Di Giorgio's contention.
The decisions of the Board in the Wadsworth and Schenley cases, insofar as.
they are in point here, seem to dispute Di Giorgio's contention. In the former-
case, the Board said: "Section 8 (b) (4) (A) was aimed at eliminating all
secondary boycotts and their concomitant activities . . . It was Congress'
belief that labor disputes should be confined to the business immediately involved.
and that unions should be prohibited from extending them to other employers ..."
[Emphasis supplied.] According to the Board, it was the objective of the Union's
secondary activities which Congress had in mind, and the Board quoted Senator
Taft when he said that "All this provision of the bill does is to reverse the effect
of the law as to secondary boycotts." In the Schenley case too, the Board spoke-
of unlawful "secondary" activity, away from the scene of the primary dispute.
Here, however, the activities of Teamsters 87 occurred at the scene of the primary
dispute. Activities of that nature are not within the usual connotation of a
secondary boycott. To ban them would not be "to reverse the effect of the law
as to secondary boycotts," but to limit beyond the Congressional intent the right
to strike for a lawful objective and to picket the primary employer as a part of
the strike activities. I reach the conclusion, "warranted by the history of the Act;
that it was not the intent of Congress to ban such activity, although the words.
of the statute,.given their broadest meaning, may seem to reach it." 80
There is, moreover, a further. and impelling consideration in behalf of Team-
sters 87. That is, to hold that agricultural laborers may not peacefully picket
their employer, as a part of a strike to achieve recognition by him, would be to,
hold that such laborers, because of their inherent disqualification to use the
processes of the Board, have even less right to picket than "employees" who are
entitled, through their labor organizations, to use the Board's processes. While
Colony or Safeway, for the purpose of publicizing their grievances with their real adversary,
namely, Di Giorgio. . . .
88 Di Giorgio cites as authority , Wine, Liquor 4 Distillery Workers Union , etc. and
Schenley Distillers Corporation , 78 NLRB 504 . The case is not in point . There the
respondent union engaged in work stoppages at the premises of secondary employers, the
principal reason for which was a proscribed object within the meaning of Section 8 (b) (4).
Here the activity of Teamsters 87 was at the scene of the primary dispute , to which the
secondary employers sent their truck drivers . Teamsters 87 did not picket the secondary
employers , nor did it engage in work stoppages at their places of business.
89 Douds, etc . v. Metropolitan Federation of Architects , etc., 75 F. Supp. 672 , 21 LRRM
2256 (D. C. N. Y.).
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is beyond doubt that Congress intended that agricultural laborers should not
avail themselves of the benefits of the Act, there certainly is no indication that,
in addition to this disqualification, Congress intended to place them at the
further disadvantage of being unable to use picketing at the scene of the primary
strike in all ways which are lawful for a majority union of. "employees.s 40
Certainly, if Congress had intended to place this disadvantage upon agricultural
laborers, Congress would have said so..A1 Because I believe that the primary
picketing by Teamsters 87 was lawful, and also because the reasons set forth
above with respect to Farm Union's exemption from the prohibitions of the Act
apply as well to Teamsters 87 in this proceeding, I shall recommend that the
complaint be dismissed insofar as it alleges that Teamsters 87 has engaged in
unfair labor practices within the meaning of Section 8 (b) (4) (A).42
3. Wine Workers and Teamsters 848
Wine Workers is the exclusive bargaining representative of certain employees
at Swiss Colony, while Teamsters 848 represents the truck drivers of Safeway.
The principal factual questions are whether these Respondents (1) struck at the
premises of the respective employers, and (2) induced and encouraged their
members to strike, with the object of forcing or requiring the respective employer
to cease doing business with Di Giorgio. The General Counsel argues the
affirmative as to both Wine Workers and Teamsters 848, while those Respondents
assert the contrary and, in addition, raise several defenses.
We have seen that with the appearance of Farm Union's pickets at Swiss
Colony during February 1948, the members of Wine Workers refused to cross
the line and ceased their work for 1 day. Later, just prior to the receipt of the
March shipment of wine, Ethridge, the business agent of Wine Workers, told
Gertrude Schmitz that the employees could finish the day's work when the wine
arrived, but "that is all." Upon the arrival of the wine, Rube Turner, the shop
steward, signaled to a group of employees, who then left the plant, and he also
40 The proviso to Section 8 (b), although apparently directed to the lawfulness of a
secondary union's refusal to cross a primary picket line , and not to the question of the
lawfulness of the line itself , makes it clear that a secondary union may refuse to cross the
picket line of a majority union at a struck plant . It reads: "Provided , That nothing con-
tained in this subsection ( b) shall be construed to make unlawful a refusal by any person
to enter upon the premises of any employer ( other than his own employer ), if the em-
ployees of such employer are engaged in a strike ratified or approved by a representative
of such employees whom such employer is required to recognize under the Act." It should
be noted that a labor organization is included within the definition of "person" in the
amendatory legislation. See Section 2 (1).
41 It appears from the remarks of Senator Taft, above quoted , that he did not envision
the application of Section 8 (b) (4) (A ) to a situation where the union alleged to have
induced or encouraged employees of a secondary employer was itself inherently disqualified
to utilize the processes of the Board to achieve certification.
42 The disposition of this case as to Teamsters 87 and Farm Union upon the grounds
stated makes it unnecessary to discuss other defenses raised by those Respondents , including
the following : ( 1) that Fruit Corporation is an agricultural enterprise , not engaged in
commerce within the meaning of the Act , and that it is immaterial that its annual business
is in the multi-millions of dollars because, since Congress cared not to protect the flow
of agricultural products into commerce from obstructions caused by the commission of
unfair labor practices by a farmer toward his agricultural laborers , Congress cared not to
protect the flow of the same products into commerce from obstructions caused by the unfair
labor practices of an agricultural union; (2) that wine Company is not engaged in coin-
merce ( a) under the doctrine of de minimis and (b ) because it is merely an agent of Fruit
Corporation ; ( 3) that the interstate phases of the business of OTC and PMT were not
interrupted at the primary picket line ; and (4 ) that both Turner Brothers and Arvin
Line operate purely intrastate businesses.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 747
told Schmitz that the men were leaving. Schmitz thereupon directed the em-
ployees under her supervision to cease work. None of the employees returned
to work for approximately 1 week, by which time the picket line had been
terminated. In defense, Wine Workers argues that there was no strike, but
that its members simply "refused to work behind a picket line," that their action
was in the nature of "independent, voluntary action of the individuals," and
that a strike must be one "authorized by the proper authorities." This contention
is contrary to principles of the Board.43 The action of Wine Workers' member-
ship in ceasing work in a body with each appearance of the pickets, and in
refraining from work during the presence of the pickets, was a strike by Wine
Workers. Moreover, Ethridge and Rube Turner were both agents of that re-
spondent, and their remarks to the employees, as above described, constituted
inducement and encouragement of the employees, within the meaning of Section
8 (b) (4) (A).
Turning to the events at Safeway, Teamsters 848 argues that its members
who refused to cross Farm Union's picket line did so as individuals, of their
own initiative, without direction from any officer or agent of Teamsters 848, and
without knowledge of the purpose of the picket line. That Respondent argues
further that after the arrival of its representative, Pitts, there was no change in
the situation because Pitts "contributed nothing to ... [the] further activity"
of the drivers. I do not believe that the action of the drivers prior to Pitts'
arrival can be termed a strike by Teamsters 848. This is so because there is no
evidence to establish: (1) the number of drivers whose trucks had been loaded
and who had refused to cross the picket line, although the number clearly was
less than six, or (2) that any officer or agent of Teamsters 848 had made any
comment of inducement or encouragement to the drivers not to cross the line 4"
Moreover, even if the contrary could be held, there is still no evidence that the
drivers knew who was picketing, or why. Therefore, assuming that there was
a strike before Pitts' arrival, there is no evidence that the drivers struck with
the object proscribed in Section 8 (b) (4) (A).
With the arrival of Pitts, the situation changed. He said in the presence
of some drivers, and other persons, that no truck would leave the premises
until the potatoes had been reloaded and removed. Here, from a representative
of their labor organization, the drivers learned of the nature of the controversy.
Thereafter they refused to cross the picket line. That refusal, by all members
of Teamsters 848 then in Safeway's premises, constituted a strike by that
Respondent. Moreover, the remarks of Pitts constituted inducement and
encouragement to them, within the meaning of Section 8 (b) (4) (A).
Both Teamsters 848 and Wine Workers assert that their activity did not
affect commerce, and they contend that neither Fruit Corporation, which shipped
the potatoes to Safeway, nor Wine Company, which acted as the agent of its
parent corporation in shipping the wine to Swiss Colony, is engaged in com-
merce, as mentioned in footnote 42. Teamsters 848 asserts further that the
controversy at Safeway involved only "two loads of spuds," the value of which
was an "infinitesimal" amount and that there is no evidence that any truck
93 Amalgamated Meat Cutters, etc., and The Great Atlantic and Pacific Tea Company,
81 NLRB 1052.
41 The General Counsel argues that there was inducement and encouragement of the
drivers by Teamsters 848, even prior to the arrival of Pitts, because of the possibility,
Inherent in the constitution and bylaws of that Respondent , of their being charged with
disloyalty for crossing the picket line of Farm Union , and he points to the disciplinary
action taken by another Respondent , Teamsters 87 against Roy Turner . I regard this
contention as unsound in view of the Wadsworth decision.
748 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
belonging to Safeway was destined that night for Las Vegas, Nevada, the only
out-of-State point to which Safeway shipped its products. These contentions
overlook the facts that both Safeway and Swiss Colony are engaged in commerce,
as described in Section I above, and that the operations of each were effectively
brought to a -standstill by the activities of these two Respondents. I find no
merit in these arguments.
Finally, Wine Workers asserts that, while it "normally is a labor organization
within the meaning of the Act," it may not be so considered in this case
because the denial of the benefits of the Act to Farm Union and Teamsters 87
in the dispute with Di Giorgio is a denial of the Act's benefits to all the
Respondents. This contention is a part of a principal defense of all the
Respondents, i. e., that the dispute with Di Giorgio was over recognition only,
and that it was not the intention of Congress that Section 8 (b) (4) (A) be
applied when the primary and secondary activities of labor organizations were
designed to achieve recognition of one of them by the primary employer.
This contention necessitates a recitation again of certain portions of Section
8 (b) (4), with particular attention to the objects described in (A) and (B)
thereof. Section 8 (b) (4) provides that it shall be an unfair labor practice
for a labor organization or its agents :
to engage in, or to induce or encourage the employees of any employer to
engage in , a strike or a concerted refusal in the course of their employment
to use, manufacture, process, transport, or otherwise handle or work on any
goods . . . where an object thereof is: (A) forcing or requiring . . . any
employer or other person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor, or
manufacturer, or to cease doing business with any other person; ( B) forcing
or requiring any other employer to recognize or bargain with a labor organ-
ization as the representative of his employees unless such labor organization
has been certified as the representative of such employees under the
provisions of Section 9; .. .
It is apparent that the activity of Wine Workers and Teamsters 848 falls
within the broad language of Section 8 (b) (4) (A), but the point which the
Respondents make is that the provisions thereof must be read in connection
with Section 8 (b) (4) (B). They argue that the former, subsection (A), is a
general prohibition of secondary boycotts, while subsection (B) is the provision
dealing with boycotts to achieve recognition. Subsection (B), they say, is a
specific qualification upon, and an exception to, the broad language of Subsection
(A) and preserves the lawfulness of a boycott, however wide its scope or the
number of participating labor organizations , where the object thereof is to
require that the primary employer recognize or bargain with a labor organization
pursuant to a certification of the Board. The legislative history supports this
proposition 45 The Respondents also assert, in substance, that although Congress
45 The House Conference Report, No . 510, contains the following language : "Clause (B)
of this provision of the Senate amendment covered strikes and boycotts conducted for
the purpose of forcing another employer to recognize or bargain with a labor organization
that has not been certified as the exclusive representative . It is to be observed that the
primary strike for recognition (without a Board certification) was not prohibited. More-
over, strikes and boycotts for recognition were not prohibited if the union had been cer-
tified as the exclusive representative ." [ Emphasis supplied .] Similar language is found
in Senate Report No . 105 on S. 1126 , and it will be recalled that Senator Taft did not
envision the application of Section 8 (b) (4) (A) to any labor organization which was
inherently disqualified from using the processes of the Board to achieve certification.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC . 749
untended to protect the business of a disinterested secondary employer from
-a boycott, Congress did not care to protect the secondary employer's business
when he dealt with a primary employer who refused to recognize or bargain with
the certified representative of his employees. This proposition too is sound.
Subsection (B) clearly sets forth an area of immunity in boycotts for recognition
;and bargaining. If the labor organization seeking recognition follows the peace-
ful machinery of the Act and achieves a certification, and if the employer never-
theless declines to recognize or bargain with it, that labor organization and all
others acting in its behalf may lawfully engage in secondary boycotts which
.have as their purpose to force the primary employer to bargain pursuant
to the certification. Here, however, it will be recalled that the petitions and
.charges filed by Farm Union and Teamsters 87 were dismissed because there were
:no "employees" involved. Thus, those Respondents are intrinsically unqualified
:to avail themselves of the Board's processes to establish their claimed majority
-status in appropriate units and thereby to achieve certifications." The Act
itself denies to them the opportunity to come within the area of immunity that
is available to labor organizations which represent "employees." Our question
is whether this denial to Farm Union and Teamsters 87 can furnish a defense
.to Wine Workers and Teamsters 848.
I think that the answer lies in the negative. Subsection (B), in creating an
exception to the broad prohibitions of subsection (A), must be construed strictly
in accordance with established principles of statutory construction. Subsection
(B) speaks of a labor organization as the representative of employees. Here, as
.has been determined, Farm Union is not a labor organization, and neither it nor
'Teamsters 87 represents "employees" of Di Giorgio. This being so, Farm Union
cannot be "a labor organization" within the meaning of subsection (B), nor can
the Di Giorgio workers be "employees" within the meaning of that subsection
-and "agricultural laborers" in other instances. The Act does indeed produce
the curious result that unions of "employees" may call upon fellow unions to aid
in forcing recognition pursuant to a certification and that the labor organizations
which respond are free from prosecution under the Act, while those labor organ-
izations which respond to the appeals of unions of agricultural laborers for aid
in achieving recognition may be prosecuted for doing so, although the agricultural
,unions themselves are not subject to prosecution. However odd the result, the
dictate of the statute is clear. I conclude that the language of the Act and grin-
-ciples of statutory construction impell the finding that Wine Workers and Team-
sters 848 have engaged in unfair labor practices within the meaning of Section
8 (b) (4) (A).
4. The alleged violations of Section 8 (b) (1) (A)
Section 8 (b) provides that it shall be an unfair labor practice for a labor
,organization or its agents :
(1) to restrain or coerce (A) employees in the exercise of the rights guaran-
teed in section 7: Provided, That this paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to the
acquisition or retention of membership therein . . .
"Neither Farm Union nor Teamsters 87 proved or offered to prove its claimed majority
status at the hearing , although each made frequent assertions of such status . Therefore,
while it is true that the representation procedures of the Board are denied to these Respond-
ents , it is also true that the record in this proceeding does not disclose whether either
of them actually enjoys majority status.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that each of the Respondents violated Section.
8 (b) (4) (A) and ipso facto violated Section 8 (b) (1) (A). This contention,
must be rejected under authority of National Maritime Union of America,4' where
the Board held that a violation of Section 8 (b) (1) (A) is not derivative from
a violation of another subsection of (8) (b).
The General Counsel also contends that if a violation of Section 8 (b) (4) (A)
is not of itself a violation of Section 8 (b) (1) (A), nevertheless the acts of
the Respondents described above constitute violations of the latter subsection.
The allegations respecting Farm Union must be dismissed in their entirety, how-
ever, because it is not a labor organization subject to the prohibitions of the
Act. Too, the allegations of unfair labor practices within the meaning of Section-
8 (b) (1) (A) by Teamsters 87 must be dismissed because (1) that Respondent
is not subject to the Board's jurisdiction in its dispute with Di Giorgio, and (2)
in any event, the proviso to Section 8 (b) (1) (A), above quoted, protects that
Respondent in prescribing and enforcing membership rules, and furnishes a meri-
torious defense insofar as Teamsters 87 disciplines its members short of seeking-
to limit their job opportunities.
With respect to the remaining Respondents, Wine Workers and Teamsters 848,
who struck at the premises of Swiss Colony and Safeway, and who induced and.
encouraged their members to strike, the answers are equally clear. The strikes.
by those Respondents, although in violation of Section 8 (b) (4) (A), do not
constitute restraint or coercion of their members," nor do the provisions of the
constitutions and bylaws which require observance of a picket line." Under
these circumstances, the acts of inducement and encouragement of the members
to strike cannot constitute restraint and coercion of them. Accordingly, I shalL
recommend that the complaint be dismissed insofar as it alleges that any
Respondent violated Section 8 (b) (1) (A).
IV. THE EFFECT OF THE UNFAIR LAI3OR PRACTICES UPON COMMERCE
The activities of Wine Workers and Teamsters 848 set forth in Section III,
above, occurring in connection with the operations of Swiss Colony and Safeway-
described in Section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Wine Workers and Teamsters 848 have violated Section S.
(b) (4) (A) of the Act, it will be recommended that they cease and desist there-
from and that they take certain affirmative action designed to effectuate the.
policies of the Act. It will be recommended that Wine Workers and Teamsters.
848 cease and desist from engaging in, or inducing or encouraging employees to.
engage in, a strike or concerted refusal in the course of their employment to
perform services where an object thereof is to force or require the employer or
any other person to cease doing business with Di Giorgio.60
97 78 NLRB 971. Cf. also Local 74, International Brotherhood of Carpenters, etc., and
Ira A. Watson, etc., 80 NLRB 553.
48 See footnote next preceding.
49, Again, the proviso to Section 8 ( b) (1) (A) guarantees to a labor organization the
right to prescribe its own rules respecting membership and to enforce them.
" Teamsters 848 points out that the charge involving it was filed by Di Giorgio, that
Safeway did not file a charge , and that no official of Safeway testified for the General
Counsel concerning the activity of Teamsters 848. That Respondent argues that it is
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 751
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The operations of Italian Swiss Colony and Safeway Stores, Inc., consti-
tute trade, traffic, and commerce among the several States, within the meaning
of Section 2 (6) and (7) of the Act.
2. The Respondents, Distillery, Rectifying and Wine Workers International
Union, Local 45, AFL, and Wholesale Delivery Drivers and Salesmen's Union,
Local 848, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL, are labor organizations within the meaning of
Section 2 (5) of the Act.
3. The Respondent, Kern County Farm Labor Union, Local 218, National Farm
Labor Union, AFL, is not a labor organization within the meaning of Section 2
(5) of the Act.
4. The Respondent, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local 87, AFL, while normally a labor organi-
zation within the meaning of Section 2 (5) of the Act, is not such an organization
for the purposes of this proceeding.
5. By engaging in, and inducing and encouraging employees to engage in,
strikes or concerted refusals in the course of their employment to perform any
services with the object of forcing or requiring Italian Swiss Colony to cease
doing business with Di Giorgio Wine Company, the Respondent, Distillery, Recti-
fying and Wine Workers International Union, Local 45, AFL, has engaged in
unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act.
6. By engaging in, and inducing and encouraging employees to engage in, a
strike or concerted refusal in the course of their employment to perform any
services with the object of forcing or requiring Safeway Stores, Inc., to cease
doing business with Di Giorgio Fruit Corporation, the Respondent, Wholesale
Delivery Drivers and Salesmen's Union, Local 848, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, has
engaged in unfair labor practices within the meaning of Section S (b) (4) (A)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
S. The allegations of the complaint that the Respondents, Kern County Farm
Labor Union, Local 218, National Farm Labor Union, AFL, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local 87,.AFL, have engaged in unfair labor practices within the meaning of
Section S (b) (4) (A) of the Act have not been sustained.
9. The allegations of the complaint that any Respondent has engaged in unfair
labor practices within the meaning of Section 8 (b) (1) (A) of the Act have not
been sustained.
Di Giorgio, and not Safeway, which complains of the interruption to Safeway's business, and
that Di Giorgio seeks to utilize the processes of the Board in preference to the procedure
of collective bargaining. According to Teamsters 848, it "doesn't add one whit to the
solution of" the labor dispute at Di Giorgio Farms to require that Teamsters 848 cease
and desist from its conduct. It is a question of Board policy whether, in the light of these
contentions and the Board's inability to settle the dispute by going to its source, it would
effectuate the policies of the Act to afford relief to Di Giorgio by issuing an order against
Teamsters 848. This question of policy should be determined by the Board in the first
instance, rather than by a Trial Examiner.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, I hereby
recommend that the Respondents, Distillery, Rectifying and Wine Workers Inter-
national Union, Local 45, AFL, and Wholesale Delivery Drivers and Salesmen's
Union, Local 848, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, and their agents, shall :
1. Cease and desist from engaging in, or inducing their members to engage in,
a strike or concerted refusal in the course of their employment to perform services
for any employer, where an object thereof is to require any employer or other-
person to cease doing business with Di Giorgio Fruit Corporation or its subsidi-
ary, Di Giorgio Wine Company.
2. Take the following affirmative action in order to effectuate the policies of'
the Act.
(a) Post at their business offices copies of the notices attached hereto as
Appendices." Copies of the appropriate notice, to be furnished to each of these
two Respondents by the Regional Director for the Twenty-first Region, shall, after
being signed by an official representative of such Respondent, be posted by it
immediately upon receipt thereof and maintained for a period of sixty (60) con-
secutive days thereafter, in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps shall be taken by each
of these Respondents to insure that its notices are not altered, defaced, or cov-
ered by any other material ; and
(b) Notify the Regional Director for the Twenty-first Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps have been
taken to comply herewith.
It is further recommended that, unless each of these two Respondents shall.
within ten (10) days from the receipt of this Intermediate Report, notify said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board. issue an order requiring it to take
the action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges
that: (1) the Respondents, Kern County Farm Labor Union, Local 218, National
Farm Labor Union, AFL, and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local 87, AFL, have engaged
in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the
Act; and (2) any of the Respondents has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of
the Intermediate Report. Immediately upon the filing of such statement of
51 Appendix A will be prepared for Respondent , Wine Workers. Appendix B will be pre-
pared for Respondent , Teamsters 848.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 753
exceptions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 203.85. As further provided in said Section 203.45
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as. provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 2Sth day of April 1949.
A. BRUCE HUNT,
Trial Examiner.
APPENDIX A
NOTICE
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT engage in, or induce or encourage the members of Local 45
to engage in, a strike or a concerted refusal in the course of their employment
to perform any services where an object thereof is to force or require the
employer or any other person to cease doing business with Di Giorgio Fruit
Corporation or its subsidiary, Di Giorgio Wine Company.
DISTILLERY, RECTIFYING AND
WINE WORKERS INTERNA-
TIONAL UNION, LOCAL 45,
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.
APPENDIX B
NOTICE
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our members that :
WE WILL NOT engage in, or induce or encourage the members of Local 848
to engage in, a strike or a concerted refusal in the course of their employment
to perform any services where an object thereof is to force or require the
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer or any other person to cease doing business with Di Giorgio Fruit
Corporation or its subsidiary, Di Giorgio Wine Company.
WHOLESALE DELIVERY DRIVERS AND
SALESMEN'S UNION, LOCAL 848,
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HE LPERS OF
AME1UCA, 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.