International Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

May 10, 1956

115 N.L.R.B. 1290 (N.L.R.B. 1956)

1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ross was challenged for the reason that he was a plant clerical. The
Regional Director found that both men were plant clericals and that
the parties had agreed to exclude all plant clericals from the unit. The
Petitioner excepts generally as to the finding concerning Forester, con-
tending that he should be in the unit because he does more production
than clerical work. As the Petitioner offered no evidence to support its
contention, we adopt the recommendation that the challenge be
sustained.
The investigation showed that Ross works in the shipping de-
partment and that his duties are predominantly clerical in nature. As
no exceptions were filed'to this finding, we adopt the recommendation
that this challenge be sustained.
Percy H. Cole, Leslie J. Cochren, George B. Morice : These ballots
were challenged by the Petitioner on the ground that 'Cole was a
guard; that Cochren performed no production or maintenance work;
and that Morice was a supervisor. The investigation revealed that
Cole is a plant janitor and performs no guard duties; that Cochren
is an office and plant janitor and- that Morice is an inspector perform-
ing no supervisory functions. The Petitioner excepts generally to
these findings, but proffered no evidence contrary to the foregoing
findings of the Regional Director. Accordingly, we adopt the Re-
gional Director's recommendation to overrule the challenges to their
ballots.
As we have overruled the challenges .to 3 ballots and sustained the
challenges to 4ballots and as the,outcome •of the election depends an
the consideration .of the 3 ballots, we shall order that these ballots be
opened and counted.
[The Board ordered that the Regional Director for the Fourteenth
Region shall, within ten (10) days from the date of this Direction,
open and count the ballots of Percy H. Cole, -Leslie J. -Cochren, and
George B. Morice, and serve upon the parties a supplemental tally of
ballots.]
International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, AFL-CIO, Teamsters, Chauf-
feurs, Warehousemen and Helpers Union, Local No. 20, and
Lawrence Steinberg, Ivo Erwin , Homer Mohler, Edward aSul-
lenger and Jack Cassidy and National Cement Products Co. of
Toledo , Ohio (a -partnership) .. Case No. 8-CC-37. May 10, 195,6
DECISION AND ORDER
On November 29, 1955, Trial Examiner Stephen S. Bean issued
his Intermediate Report in the above-entitled proceeding, finding
115 NLRB No. 206.
INTERNATIONAL -BROTHERHOOD OF TEAMSTERS, ETC. 1291
that the Respondents had not engaged in ,and were not engaging in
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter, the
;General Counsel and the Charging Party filed exceptions to the In-
termediate Report and supporting briefs, and the Respondents filed
a brief. Pursuant to notice, oral argument was held on March 1,
1956, before the Board at Washington, D. C., in which 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 Inter-
mediate Report, the exceptions and briefs, the oral argument, and
the entire record in the case,' and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, only insofar as
they are consistent with the Decision and Order.
1. We find, in disagreement with the Trial Examiner, that the
Respondents engaged in activities prohibited by Section 8 (b) (4) (A)
of the Act.
The facts relating to the dispute herein, as detailed in the Inter-
mediate Report, are not in conflict. National manufactures and
sells concrete blocks and other building materials. In addition to its
own trucks and drivers who make deliveries, National has a written
contract with Tom Edwards, an individual, who is in the trucking
business and hauls exclusively for National. Edwards, a son-in-law
of one of the, partners of National and a brother-in-law- to some of
the other partners, is also employed by National as' a salesman. The
record further shows that Edwards owns 3 trucks and employs 3
drivers who are covered by social security, unemployment compensa-
tion, and workmen's compensation, with Edwards as the employer.
He also hires under a lease arrangement as many as nine trucks which
are operated by their owners or by their owners' employees. Edwards
hires, pays, and instructs his drivers when to report for work. The
drivers obtain delivery tickets from National's shipping clerk, take
their trucks to a loading area where National's employees load the
vehicles, and then deliver National's products to its customers. Some
of the trucks used by Edwards are garaged on National's property.
National has utilized the services of a contract hauler such as Edwards
for approximately 15 years. The arrangement between National
and Edwards began in 1954. Prior thereto, National had a similar
contract with an individual, Bert Munday, whose business was pur-
chased by Edwards.
1 Supplemental briefs filed by the General Counsel and the Respondents have also been
considered by the Board.
1292 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 18, 1955, after a strike, National and 11 other building
supply firms signed an associationwide contract with the Respondent
Union. In addition to National four other firms who are members
of the association also use the services of contract haulers. These
haulers are not members of the association. During the negotiations
with the building supply firms, the Union proposed that the employees
of contract haulers should be carried on the payrolls of those firms
which did business with contract haulers. This proposal was rejected
and the Union decided to enter into separate contracts with the haulers.
All of the contract haulers but Edwards entered into agreements with
the Union. The Union was unsuccessful in seeking National's assist=
ance to induce Edwards to sign a contract with the Union. . The
Respondents concede, and the Trial Examiner found, that between
August 12,1955, and mid-September 1955, the Respondents frequently
instructed National's employees on the job site not to load Edwards"
trucks and that such orders were generally followed a
Our disagreement with the Trial Examiner is based on the signifi-
cance he accorded to the fact that Edwards was a relative by mar-
riage of National's partners and was also an employee of National.
The Trial Examiner concluded that because of this family and em-
ployee relationship, National was not a neutral employer as conteln-
plated by Section 8 (b) (4) (A) and was in effect an ally of Edwards.
It is clear that Edwards is an independent contractor who is con
tinuing the cartage business relationship with National previously
established by Edwards' business predecessor, Munday.3 In our opin-
ion, the family and employee relationship of the parties does not
alter the nature of the independent cartage business relationship
which would otherwise have the protection of the statute.4 In those
cases where it was found that the secondary employer was unneutral
or an ally of the primary employer, there has been evidence of common
ownership and managerial control, or transfer of struck work.5 None
of these factors are present here. Unlike the Trial Examiner, we
recognize a distinction between Edwards' relationship with National
as an employee and as an employer. In the first instance, he works for
National primarily in the capacity of a salesman; 6 while in the second,
2 The Respondents ceased this conduct after the General Counsel instituted injunction
proceedings under Section 10 (1) of the Act. No injunction was obtained, however, as
the Union instructed National's employees to resume the loading of Edwards' trucks,
pending the Board 's decision In this matter.
3Hoosser Petroleum Company, Inc., 106 NLRB 629, enfd. 212 F. 2d 216 (C A. 7)
* See De Hart Motor Lines, Inc., 111 NLRB 1252.
5Irwin -Lyon8 Lumber Company , 87 NLRB 54 ; D6ud8 v. Metropolitan ` Federation of
Architects, Local 231, 75 F. Supp. 672 (D C., N. Y., 1948).
0 Edwards testified on direct examination that he buys "plaster and materials , call[s]
on plaster contractors , sell[s] sewer pipe, that sort of thing ," but acknowledged that he
was considered a salesman On cross -examination he reiterated twice that lie was "con-
sidered a salesman ," adding that lie buys "some of their materials too." On the basis
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , -ETC. 1293
he is a separate, independent entity "doing business" with National
in the same manner as would any other subcontractor. These two rela-
tionships exist and function independently,of each other. Although
the coexistence of these relationships might well have accentuated the
otherwise normal interest which secondary employers always have in a
labor dispute involving their subcontractors, it did not destroy Na-
tional's otherwise neutral status with respect to Edwards' separate
labor dispute with the Respondent Union. We accordingly find that
with respect to the cartage operation, Edwards is "doing business"
with National, within the meaning of Section 8 (b) (4) (A) of the
Act 7
The Respondents apparently contend' that their inducement of
National's employees not to load Edwards' trucks was the result of a
primary dispute with National and therefore not proscribed-by Sec-
tion 8 (b) (4) (A). We do not agree. While it is true that at one
time there was a primary labor dispute involving the employees of
National, which resulted in a strike, this dispute was settled by a
signed contract. In effect, the Respondents seem to argue that the
subsequent refusal of National's employees to load Edwards' trucks,
which was provoked by Edwards' refusal to contract with the Union,
was a continuation of the otherwise settled primary dispute. How-
sever, it is clear that the Respondents' unsuccessful efforts to conclude
a; contract with Edwards for his employees gave rise to a primary
dispute with Edwards and that the attempt to make National a party
to this dispute, by causing a strike among National's employees, is
the very type of secondary action enjoined by the statute.8 We are
satisfied that an object of the Respondents' strike at National was to
force it to cease doing business with Edwards until he signed a satis-
factory agreement with the Union.
In view of the entire record, we find that the Respondents induced
the employees of National to engage in a concerted refusal' to per-
form services, with an object of forcing or requiring National to cease
doing business with Edwards, in violation of Section 8 (b) (4) (A)
of the Act.
2. We are in unanimous agreement that the 8 (b) (4) (B) allega-
tion of the complaint be dismissed, as the record shows that the
Respondents and Edwards did bargain with respect to terms of a
proposed contract proffered by the Union, but were unable to reach
an agreement.
of this meager testimony and without any showing that Edwards has the power to pledge
National's credit, we find no warrant for our dissenting colleague's conclusion that Edwards
is a "managerial aiin" of National
7N. L R. B. v. 'Denver Bldg. t Construction' Trades Counci l, et al ., 341 II: S.
675, 689-690.
8N. L. R. B. v. Denver Bldg. & Construction Trades Council, et al., supra; Hobsier
Petroleum Company, Inc, supra; Chmaa Molybdenum Company, 108 NLRB 318, enfd. 219
F 2d 870 (C A. 10) ; Texa.Industgses, Inc., 112 NLRB 923.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents, set forth above, occurring in
connection with the operations described in section I of the Interme=
diate Report, have a close, intimate, and substantial relation to trade,
trafhc, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order them to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
SUPPLEMENTAL CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO, Teamsters, Chauffeurs,
Warehousemen and Helpers Union, Local No. 20, and Lawrence
Steinberg, No Erwin, Homer Mohler, Edward Sullenger, and Jack,
Cassidy have engaged in unfair labor practices within the meaning,
of Section 8 (b) (4) (A) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that 'the Respondents, International'
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL-CIO, Teamsters, Chauffeurs, Warehousemen and,
Helpers Union, Local No. 20, and its officers, representatives, succes-
sors, assigns, and agents, including Lawrence Steinberg, Ivol Erwin,
Homer Mohler, Edward Sullenger, and Jack Cassidy, shall :
1. Cease and desist from inducing or encouraging the employees
of National Cement Products Co. of Toledo, Ohio (a partnership), or
any other employer, to engage in a strike or a concerted refusal to per-
form any services for their employer, where an object thereof is to,
force or require National Cement Products Co. of Toledo, Ohio (a
partnership), or any other employer, to cease doing business with Tom
Edwards.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at their business office and meeting halls in Toledo, Ohio,,
copies of the notice attached hereto marked "Appendix A." I Copies
s In the event that this Order is enforced by a decree of'a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1295
of said notice, to be- furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by the official representatives of
the Respondents, including Lawrence Steinberg, No Erwin, Homer
Mohler, Edward Sullenger, and Jack Cassidy, be posted by them im-
mediately upon receipt thereof and maintained by them for a period of
sixty (60') consecutive days thereafter in conspicuous places, including
all places where, notices to members are customarily posted. Reason-
able steps shall be taken by the Respondents to insure that said notices.
are not altered, defaced, or covered by any other material.
(bb) Mail to the Regional Director signed copies of the notice at-
tached hereto marked "Appendix A" for posting, National Cement
Products Co. of Toledo, Ohio (a partnership), being willing, at its
plant in places where notices to employees are customarily posted.
(c) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
IT IS' FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated Section 8
(b) (4) (B) of the Act.
MEMBER MURDOCK, dissenting in part :
Unlike' my colleagues, I would affirm the Trial Examiner's dismissal
of the charge that the Respondents violated Section 8 (b) (4) (A) of
the Act. I agree with his analysis of the facts in the light of the leg-
islative history from which it is apparent that Edwards' in-laws, the
Fellabaums, who composed the National partnership, were not the
helpless victims of a quarrel which did not concern them and that
Congress therefore-did not intend Section 8 (b) (4) (A) to protect
persons standing in the relationship of the Fellabaums to Edwards.
My colleagues point out that in the 1 Board and 1 court case in
which it has thus far been found that a secondary employer was un-
neutral or an ally of the primary employer, there was either evidence
of common ownership and managerial control, or transfer of struck
work, neither of which are present here. There is nothing in those
cases, however, which even suggests that in no other situation can a
finding be made that the secondary employer is not a neutral or "wholly
unconcerned" employer.lo
In addition to the integrated operations, the close family relation-
ship, and Edwards' status as an employee of National, which have been
pointed out by the Trial Examiner as the basis for finding an ally
relationship, it may be noted that Edwards is a buyer 11 for National.
10 Senator Taft stated that Section 8 (b) (4) (A) made unlawful a secondary boycott
against "a third person who is wholly unconcerned in the disagreement between the em-
plover and his employees" [Emphasis supnlied 1 93 Cong Rec 4323 An*il 29 1947
11 Although the majority opinion states that Edwards works "primarily" in the capacity
of a salesman, the record does not show that he spends more of his time in selling activities
than in buying, or just how his time is divided between these two activities. Dloreover,
to the extent that he acts as a buyer for National he is a managerial arm and it is imma-
terial whether his selling duties require more time than his duties as a buyer
r,
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has only recently held that, making purchases for an em--
ployer's account is a managerial prerogative and that such indi-
viduals are so closely allied with management that they cannot be
deemed employees for bargaining purposes." As Edwards is therefore
a managerial arm of National it is obviously unrealistic and impossible
to isolate Edwards from National in their integrated operations-and
to consider the latter a neutral employer unconcerned in Edwards' dis-
pute with the Union over his trucking employees.
MEMBERS RODGERS and BEAN took no part in the consideration of the
above Decision and Order.
" Swift & Company, 115 NLRB 752.
APPENDIX A
NOTICE TO ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA,
AFL-CIO, TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND HELPERS
UNION, LOCAL No.20
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, as amended, we hereby notify our members that: ,
WE WILL NOT induce or encourage the employees of National
Cement Products Co. of Toledo, Ohio ( a partnership ), or any
other employer, to engage in a strike or a concerted refusal to per-
form any services for their employer, where an object thereof is to.
force or require National Cement Products Co. of Toledo, Ohio
(a partnership ), or any other employer, to cease doing business
with Tom Edwards.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS
OF AMERICA , AFL-CIO, TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELP-
ERS UNION , LOCAL No. 20
Dated---------------- By-------------------------------------
Lawrence Steinberg, President
Dated---------------- By ------------------------.------------.-
No Erwin , Vice President.
Dated---------------- BY-------------------------------------
Homer Mohler, Business Agent.
Dated --------- =------- •.By------------------------------------
Edward Sullenger , Business Agent.
Dated---------------- By--------------------------- --
Jack Cassidy , BuStineS8 Agent.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1297
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by National Cement Products Co. of Toledo, Ohio (a partner-
ship), herein called National, the General Counsel for the National Labor Rela-
tions Board, by the Regional Director for the Eighth Region (Cleveland, Ohio),
issued a complaint on September 21, 1955, against International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Teamsters,
Chauffeurs, Warehousemen and Helpers Union, Local No. 20, and Lawrence Stein-
berg, No Erwin, Homer Mohler, Edward Sullenger, and Jack Cassidy, herein
called Respondents, the Union, or Respondent Agents. The complaint alleges
that Respondents have engaged in unfair labor practices within the meaning of
Section 8 (b) (4) (A) and (B) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act.
The gist of the complaint is that Respondents have induced and encouraged em-
ployees of National to engage in a strike or a concerted refusal in the course of their
employment to load the trucks of John T. Edwards, an individual, d/b/a Tom
Edwards, herein called Edwards, with an object of forcing or requiring National
to'cease doing business with Edwards and/or to force or require Edwards to rec-
ognize or bargain with the Union as the collective-bargaining representative of Ed-
wards' drivers although the Union has not been certified as the representative of
such employees in accordance with the provisions of Section 9 of the Act.
Respondents filed an answer in which they admit certain allegations of the com-
plaint , deny they have violated Section 8 (b) (4) (A) and (B) of the Act, and
aver that the Union is engaged in a labor dispute with Edwards and/or National
and assert that any activities in which the Union engaged were primary activities
arising out of a labor dispute with National and/or Edwards.
Pursuant to notice a hearing was held before the duly designated Trial Examiner
in Toledo, Ohio, on October 26, 1955. All parties were represented by counsel
and had the opportunity to examine and cross-examine witnesses and to introduce
evidence pertinent to the issues.
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 EMPLOYERS
National is a partnership, composed of Robert A. Fellabaum, A. D. Fellabaum,
C. B. Fellabaum, J. R. Fellabaum, and W. R. Fellabaum, which has its principal
office and place of business in Toledo, Ohio, where at all times material herein it
has been engaged in the manufacture, sale, and distribution of concrete and cinder
block, concrete beams, and lintel. During the year 1954, National shipped products
directly from its plant to points outside the State of Ohio in a value of $131,160.
During the first 9 months of the year 1955, National shipped products directly from
its plant to points outside the State of Ohio, in a value of $77,000. During each
month of 1954 and the first 9 months of 1955, National made purchases of material
outside the State of Ohio in a value of about $20,000 a month.
Edwards has his place of business upon National's premises in Toledo, Ohio, where
at all material times he has been engaged in the trucking business operating under
authority of a permit from the Public Utilities Commission of Ohio hauling'ex=
clusively for National. All of Edwards' operations are conducted within the State
of Ohio.
In the Jamestown Builders Exchange- case,1 the Board set forth the rule which
it has since followed 2 for determining whether to assert jurisdiction in cases involv-
ing alleged secondary boycotts. This rule provides that if the operations of the
primary employer alone satisfy the Board's jurisdictional standards, jurisdiction is
to be asserted without further inquiry. Otherwise operations of secondary em-
ployers are also to be considered to the extent that they are affected by the alleged
unlawful conduct.
The General Counsel regards Edwards as the primary employer and National as
the secondary employer. Respondents disagree. Assuming the correctness of
the General Counsel's position, since Edwards is not engaged in commerce within
the meaning of the Act, National's operations are to be considered to the extent
1Jamestown Builders Exchange, Inc, 93 NLRB 386.
® See McAllister Transfer, Inc., 110 NLRB 1769.
390609-56-vol. 115-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they are affected by Respondents ' alleged unlawful conduct. Assuming the
correctness of Respondents' position that National is a primary employer with whom
it is in dispute, jurisdiction may be asserted without inquiry into Edwards' operations.
Accordingly, I find that National's annual direct outflow of materials from Ohio,
being in excess of $100,000, is sufficient to warrant the assertion of jurisdiction in
this case.
IL THE RELATIONSHIP BETWEEN THE EMPLOYERS
Because of what I believe to be the special circumstances of this case, I consider
it necessary to relate some facts concerning the connection between National and
Edwards, both personal and in its business aspects.
For a period of years before March 1954, National had contracted with one Bert
Munday to do a part of its trucking. Edwards bought this business , consisting of 3
trucks, from Munday's estate and started operating it in March 1954 under the
terms of an agreement with National whereby he, at a stipulated price per block
or ton, agreed that he would maintain sufficient equipment to transport at least
1,000 tons of material per month. Edwards employs 3 operators, 2 of whom pre-
viously worked for Munday. Two of his trucks are garaged on National' s premises.
The third is garaged at the home of one of his drivers. He has social security,
unemployment compensation , and Ohio workmen's compensation numbers as an
employer. He fixes the wages and hours and other conditions of employment of his
employees. In addition to his direct employees, Edwards, at times when they are
needed to carry out the terms of his contract, hires, under a lease arrangement, as
many as nine additional trucks operated by their owners or by their owners' em-
ployees who work under Edwards' Public Utilities Commission permit. All the
drivers and operators, both the three directly hired and the owner-operators or their
employees, are members of the Union which, however, has not been certified as the
collective-bargaining representative of Edwards' employees.
National has 10 trucks and directly employs 10 operators. Both National's opera-
tors and Edwards' direct employees as well as those persons who operate trucks
under the lease arrangement, when they report on the job at, or in from a job to,
National's premises , which is a common situs for the conduct of both Edwards' and
National's operations , procure their trip tickets from National's shipping clerk, take
their trucks to the loading` area where National's lift-truck operators load their
vehicles, and then proceed to transport National's products to its consumers as
directed by the trip ticket.
Edwards is the son-in-law of 1 of the partners and the brother-in-law of 3 other
partners who comprise 4 of the 5 members of the partnership composing National.
He is employed by National on a salary as a salesman and a buyer. He testified
that he does not have an office so far as his trucking business is concerned, but has
one at National from which he operates as a salesman, that his father keeps his
books at his house and that he himself figures the payroll for the hired trucks in
his employ at National at night, that he tells his employees when to come to work,
after that National tells them what to do, the shipping clerk directs them, gives
them the trip ticket, and instructs everyone who drives his trucks where to go.
III. THE LABOR ORGANIZATION INVOLVED
Respondent Local No. 20 is a labor organization within the meaning of the Act.
Lawrence Steinberg is president of Local 20, No Erwin is its vice president, and
Homer Mohler, Edward Sullenger, and Jack Cassidy are its business agents.
IV. THE UNFAIR LABOR PRACTICES
The events are not complicated.
National is I of 12 members of Building Supply Dealers and was party to a col-
lective-bargaining agreement between the dealers and the Union for 5 years before
May 1955. A dispute arose over the terms of a new agreement and the dealers'
plants were struck until a settlement was reached on July 1, between a labor com-
mittee of five, including Robert M. Fellabaum, which represented the dealers, and
President Lawrence Steinberg of the Union. On July 18, a new contract incor-
porating the terms of the settlement was signed by the dealers and the Union. Dur-
ing the negotiations, the Union had proposed that contract haulers such as Edwards
be put on the companies' payrolls under a so-called lease equipment clause but the
proposal was later abandoned.
At the meeting when the strike was settled, the dealers asked Steinberg not to
allow the employees of the contract haulers to strike them immediately. Steinberg
agreed to a period of 10 days, since if some of the dealers' contract haulers should
be without truckers, the direct employees of such dealers could not have gone back
i
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1299
to work despite the settlement of the strike . He stated that during the 10 days in
question the Union would enter into agreements with the contract haulers.
The dealers ' committee did not represent the contract haulers and was not
authorized to act for them . But at the settlement meeting, C. E. Kuhlman, of the
Kuhlman Building and Supply and Brick Company, another member of the dealers'
cormittee , indicated that as far as his part was concerned , if any contract hauler
failed to sign an agreement with the Union , he would discontinue using him. Four
or five of the 12 dealers utilized the services of contract haulers in the same manner
as National employed Edwards. All but Edwards entered with the Union into
agreements similar to that executed by the dealers. He alone refused to contract
with it. The Union unsuccessfully besought National's assistance.
Beginning on August 12, 1955, and continuing , except for a single occasion, until
after injunction proceedings were instituted in the United States District Court for
the Northern District Court of Ohio, the Union, through the individual Respondents
named in the complaint, frequently instructed National's employees not to load
Edwards' trucks and these employees invariably refused National's orders to load
them.
Section 8 (b) (4) (A) and (B), insofar as it applies to the facts here, provides
that it shall be an unfair labor practice for a labor organization or its agents "to
induce . . . the employees of any employer to engage in, a strike or a concerted
refusal in the course of their employment . . . to handle . . . any . . . mate-
rials . . . where an object thereof is: (A) forcing or requiring any em-
ployer . . . to cease doing business with any other person; ( B) forcing or requiring
any other employer to recognize or bargain with a labor organization as the repre-
sentative of his employees unless such labor organization has been certified as the
representative of such employees....'
Blind literalness excuses neither the making of a mockery of the law nor a frus-
tration of its purpose. In view of the unique facts presented here, I consider it
important to penetrate behind what the statute may appear on the surface to pro-
scribe in order to determine what would be the intent of the Congress upon express
confrontation with a situation so exceptionable as this, by brief reference to the
pertinent legislative history .3
I believe Senator Taft would have been the last to assert that his statement dur-
ing the congressional debates that the committee "never succeeded in having anyone
telling [it] any difference between different kinds of secondary boycotts," should
constitute a ukase binding the courts and the Board in perpetuity to hold that in
all cases, no matter what the facts, an object of a union in inducing employees to
refuse to perform services for their employer is to force it to cease doing business
it has been engaged in with another employer or person and hence violative of the
Act. Fundamentally , it is clear that in order to prevail in this case the General
Counsel must establish by a fair preponderance of the evidence the fact that an
object of the Union's inducement was to force National to stop doing business with
Edwards. In the instant case the result of the Union's inducement was National's
ceasing doing trucking business with Edwards. But the object of the Union's induce-
ment was an attempt to have National directly bring pressure on Edwards to sign
the contract. This, the General Counsel says, "of course is permissible." Any
result flowing therefrom was incidental rather than intended.
It is doubtful that even the effect of the Union's conduct was to bring about a
stoppage of National doing all business with Edwards . Edwards is an individual,
not 2 or 3 persons . Can it be said merely because he was an employee of his
"in-laws" while continuing to procure business and purchase materials for them
when his trucks were idle, that in the accepted sense of the phrase (which is not
defined in the Act), Edwards was not "doing business with" them? Should he be
bifurcated by a fictitious process of strained legalism? Is he to be trisected into one
person when he is used as a salesman , a second when he acts as a buyer, and a
third when he serves as a trucker ? By no tortuous reasoning am I able to answer
these questions in the affirmative.
At the other extreme, I do not believe that the Senator 's further statement that
the "provision makes it unlawful to resort to a secondary boycott to injure the
3 See Cahell v Markham, 148 F 2d 737, 739 (C. A. 2) where Judge Learned Hand
stated* "But it is one of the surest indexes of a mature and developed jurispiudence not
to make a fortress out of a dictionary , but to remember that statutes always have some
purpose to accomplish, whose sympathetic and imaginative discovery is the surest guide
to their meaning." See also, Panora Refining Co v Ryan, 293 U. S. 388; 433, where in
a dissenting opinion, Mr. Justice Cardozo stated at 439 " . . the meaning of a statute is to
be looked for, not in any single section, but in all the parts together and in their relation to
the end in view " - •
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business of a third person who is wholly unconcerned 4 in the disagreement between
an employer and his employees ," constitutes a mandate that it may be found that
the Act is violated only in those instances where the third person is completely
impassive.
There is a middle ground , a plateau of equilibrium.
The House Committee on Education and Labor reported that the intent of.the
provision was to alleviate the plight of an employer whose business might be "vir-
tually brought to a standstill by disputes in which . . . he himself has no interest,"
who is "powerless to comply with demands" and is "the helpless victim of quarrels
that do not concern ( him) at all."
If any argument is needed to show that National was truly interested in any dis-
pute the Union might have with Edwards , the mere fact of its request to Steinberg
that he should not allow a strike against Edwards clearly establishes the fact that it was
indeed gravely concerned . I feel it would be completely unrealistic , in the light
of the special facts of this case, to conclude that National 's partners were powerless
to comply with the Union 's request that they should urge or require their son-in-law,
brother-in-law , and employee to enter into a contract with it. It seems to me that
it would be quite absurd to conclude that the Fellabaums were helpless victims of a
quarrel which did not concern them at all. Finally I can not believe that the purpose
sought to be accomplished by the Congress when it enacted Section 8 (b) (4) (A)
and (B ) was to protect , in such premises as these, any person standing in such a
relationship as do the Fellabaums to Edwards.
In view of my opinion on the merits of the case it is needless to dwell upon the
earnestly advanced arguments of counsel in oral argument and brief concerning other
aspects of the case which they believe should be controlling.5
My conclusion is that Respondents have not committed unfair labor practices
within the meaning of Section 8 (b) (4) (A) or (B) of the Act. Therefore I will
recommend that the complaint be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. National Cement Products Co. of Toledo, Ohio ( a partnership ), is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, AFL, Teamsters, Chauffeurs, Warehousemen and Helpers
Union , Local No. 20, is a labor organization within the meaning of Section 2 (6) and
(7) of the Act, and Lawrence Steinberg , No Erwin , Homer Mohler, Edward Sullenger,
and Jack Cassidy are its agents.
3. International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL, Teamsters, Chauffeurs, Warehousemen and Helpers
Union, Local No. 20, and Lawrence Steinberg , No Erwin, Homer Mohler, Edward
Sullenger , and Jack Cassidy have not engaged in unfair labor practices within the
meaning of the Act.
4 Emphasis supplied.
6 There was some evidence and discussion by counsel , relating to the "hot cargo" clause
in the July 18, 1955, contract . Since, however , the Union 's action was not taken for the
purpose of enforcing that clause by inducing employees not to handle hot goods , the doc-
trine enunciated by the Board majority In Sand Door and Plywood Co., 113 NLRB 1210,
does not come into play.
Minneapolis Star and Tribune Company I and Lorraine Bartel-
melts, et al., Petitioners and Local No. 12, Office Employees In-
ternational Union, AFL-CIO. Case No. 18-RD-146. May 10,
1956
DECISION AND DIRECTION OF ELECTION
Upon a decertification petition duly filed under Section 9 (c) of
the National Labor Relations Act, a hearing was held before Lyle C.
' The name of the Employer appears above as amended at the hearing.
115 NLRB No. 207.