Local 1205 & 707 Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Feb 3, 1959

122 N.L.R.B. 1215 (N.L.R.B. 1959)

LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS , ETC. 1215
6. By restraining and coercing employers in the selection of the Association as
their representative for the purposes of collective bargaining , as found above, the
Union has engaged in unfair labor practices within the meaning of Section 8(b)
(1) (B) of the Act.
7. By refusing to bargain collectively with the Association , as found above, the
Union has engaged in unfair labor practices within the meaning of Section 8(b)(3)
of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and 2 ( 7) of the Act.
[Recommendations omitted from publication.]
Local 1205 and Local 707 International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
and Atlantic-Pacific Manufacturing Corporation . Case No.
2-CC-437. February 3, 1959
DECISION AND ORDER
On April 7, 1958, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent Locals 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 Ex-
aminer also found that the Respondents had not engaged in certain
other unfair labor practices and recommended that the complaint be
dismissed with respect thereto. Thereafter, the General Counsel,
the Charging Company, and Respondent Local 1205 filed exceptions
to the Intermediate Report, and the General Counsel and Local 1205
filed supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Bean, and
Fanning].
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.'
1 In its exceptions Respondent Local 1205 excepted to the denial by the Trial Examiner
of its requests to have the General Counsel produce certain written statements in his
possession , of witnesses , at the time that said witnesses testified . By its order of
September 8, 1958, the Board sustained the exception to the above ruling and ordered
that the General Counsel forthwith make available to Respondent Local 1205 such pre-
trial written statements , or copies thereof, directly related to their testimony of witnesses
who had testified for the General Counsel, provided that the Respondent Local 1205,
within 10 days of the order , designate to the General Counsel, the names of the witnesses
whose pretrial statements it desired . This Board order also provided that within 5 clays
after these statements had been received Respondent Local 1205 could move to reopen
the record and have the case remanded to the Trial Examiner for the purpose of further
examining any witnesses whose pretrial statements had been made available in accordance
with the procedures established in that order. Respondent Local 1205 did not designate
to the General Counsel the names of witnesses whose pretrial statements it desired, nor
122 NLRB No. 148.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
with the following additions and modifications:'
The complaint alleges in substance that Local 1205 in violation of
Section 8(b) (4) (A) and (B) induced or encouraged employees of
certain carriers by truck and rail to refuse to handle the goods of
the Charging Company with the object of forcing these employers
to cease doing business with the Charging Company and further to
force or require the Charging Company to recognize Local 1205, a
noncertified labor organization, as the bargaining representative of
its truckdrivers. The Trial Examiner found violations of the Act
in connection with all incidents involving motor carriers except
R.C. Motor Lines. He dismissed the General Counsel's case with
respect to all incidents involving railroads.
We agree with the Trial Examiner's findings of violations in
connection with the incidents involving Alan Transport Company
Wilson Freight, Durkee Co., Inc., Acme Fast Freight, Associated
Transport, Inc., Republic Carloading and Distributing Company,
Inc., Terminal Cartage Corporation, and Middle Atlantic Transport
Co., but not for the reasons given by the Trial Examiner. The
Trial Examiner's rationale throughout is based on his construction
of the Board's holding in the Genuine Parts case 3 He assumed
mistakenly that a Board majority in that case had enunciated a
doctrine applicable to common carriers only, to the effect that "a
violation is established when it is shown that a shipper has been
refused the use of a common carrier's facilities because of a union
inducing a carrier not to handle freight of a struck plant." 4 Al-
though in connection with certain of the incidents herein he made
specific findings that the employees of certain of the neutral carriers
had been induced and encouraged by Local 1205 not to handle the
goods of the Charging Company, he found it unnecessary in other
instances to resolve the question whether the inducement not to
accept the Charging Company's freight was directed towards the
employees or towards the common carrier-employer. In the recent
Sand Door case' the U.S. Supreme Court has specifically rejected
did it move to reopen the record. Accordingly, the record remained closed without further
notice to the parties, and in this form is the basis for the Board's Decision and Order
herein.
2 The Trial Examiner found that Respondent Local 707 violated Section 8 (b) (4) (A)
and (B) of the Act by inducing work stoppages on June 28, 1957, at the Terminal Cartage
Corporation and at the Middle Atlantic Tranport Co. As Local 707 has not excepted to
this finding of,the Trial Examiner, we adopt it pro forma.
3 Truck Drivers and Helpers Local Union No. 728, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Genuine
Parts Company), 119 NLRB 399.
a See Intermediate Report, pp. 1228-1230, 1236-1239.
'Local 1976, United Brotherhood of Carpenters and Joiners of America, AFL--CIO,
et al. v. N.L.R.B. (Sand Door & Plywood Company), 357 U.S. 93.
LOCALS 1205 & 707 INYL BROTHERHOOD OF TEAMSTERS, ETC. 1217
the theory applied by the Trial Examiner. The Court held that
regardless of whether a neutral employer is a common carrier or not,-
a violation of Section 8(b) (4) (A) is established only if the evidence
shows that a union in the course of a secondary boycott has used
"the 'specifically prohibited means of coercion through inducement
of employees." 6.
On the record as a whole we are satisfied that the evidence shows
unlawful inducement of employees of all the companies here in-
volved on the part of representatives of Local 1205. In all instances
where the Trial Examiner has resolved the credibility issues raised
by conflicting testimony of the General Counsel's as against the
Respondent's witnesses, he has credited the General Counsel's wit-
nesses. In particular he has credited the testimony of the General
Counsel's witness Mamolite and discredited the testimony of the
Respondent's agent Quinnonez. Relying upon the Trial Examiner's
resolutions of these credibility issues as well as upon our evaluation
of the record as a whole, we believe ourselves to be justified in
crediting Mamolite's testimony throughout and in discrediting
Quinnonez. Accordingly, we find with respect to the incidents
involving Alan Transport Company, Wilson Freight, Durkee Co.,
Inc., and Acme Fast Freight, in which the Trial Examiner failed to
make specific or unequivocal findings to that effect, that Local 1205
through its agents and representatives unlawfully induced and en-
couraged the employees of such companies to refuse to handle the
charging Company's goods in violation of Section 8(b) (4) (A) and
(B) of the Act.
Similarly we find, contrary to the Trial Examiner, that Local
1205 also violated Section 8(b) (4) (A) and (B) by unlawfully in-
ducing the employees of R.C. Motor Lines not to accept the Charg-
ing Company's freight. Mamolite testified that on July 29, 1957,
he was followed by Quinnonezz from the premises of the Charging
Company to the loading platform of R.C. Motor Lines. As Mamo-
lite was parking his truck, Quinnonez came to the platform and
requested the freight handlers not to accept the Charging Com-
pany's goods because its plant was on strike and Mamolite was a
strikebreaker. Quinnonez denied having ever been at the premises
of R.C. Motor Lines. Instead of resolving the credibility issue
between Mamolite and Q.uinnonez the Trial Examiner found that
the General Counsel was obligated to rebut Quinnonez' denial by
additional evidence so as to establish his case by a preponderance
of the evidence. We do not agree that, after Mamolite's affirmative
testimony, the burden of coming forward with additional evidence
e Ibid . at p. 99.
See Shook & Fletcher Supply Company, 107 NLRB 1240, footnote 3.
505395-59-vol. 122-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shifted again to the General Counsel-because of the mere denial of
Quinnonez. As the Trial Examiner has done in other instances
involved herein, and on our evaluation of the record which shows a
consistent pattern of Quinnonez following Mamolite's truck to the
business places of neutral employers and there inducing their em-
ployees to refuse the handling of the Charging Company's goods,
we credit Mamolite's testimony and discredit Quinnonez' denial!,
Members Bean and Fanning agree with the Trial Examiner that
Local 1205 has not violated Section 8(b) (4) (A) and (B) by in-
ducing employees of The Delaware, Lackawanna and Western Rail-
road Company, Bush Terminal Railroad, and Long Island Railroad
Company not to handle the Charging Company's freight. Without
adopting the Trial Examiner's discussion of the application of
Section 8(b) (4) (A) and (B) of the Act to railroad employees and
in disagreement with his proposals for a change of Board policy in
cases involving such employees, we, Members Bean and Fanning,
find in accordance with Board precedent 9 that railroad employees,
as they are excluded from the definition of "employees" in Section
2(3) of the Act, are not "employees" subject to inducement or en-
couragement within the meaning of Section 8(b) (4).10 Accordingly,
the complaint allegations, insofar as they involve incidents at the
three aforementioned railroads, shall be dismissed.
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 Locals
1205 and 707, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, their officers, representa-
tives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Local 1205 from engaging in, or inducing or encouraging the
employees of Acme Fast Freight, Inc., Alan Transport, Associated
Transport, Inc., Wilson Freight Forwarding Co., Republic Car-
loading and Distributing Co., Middle-Atlantic Transport, Inc., Ter-
minal Cartage Corp., Durkee Company, Inc., and R.C. Motor Lines
8 See footnote 7, supra.
9 Local 833 , International Union, United Automobile , Aircraft and Agricultural Imple-
ment Workers of America (UAW-AFL-C70) et at, (Paper Makers Importing Co., Inc.,
et al.), 116 NLRB 267 , and cases cited therein ; United Hatters , Cap and Millinery
Workers International Union, AFL-CIO , et al. (Louisville Cap Co. ), 121 NLRB 1154.
10 For the reasons set forth in his dissents in the W. T . Smith Lumber Company case,
116 NLRB 1756 , 1767 , and in the Paper Makers case , supra, and in agreement with the
view of the Court of Appeals for the Fifth Circuit as expressed in W. T . Smith Lumber
Company v . N.L.R.B ., 246 F . 2d 129 , Member Rodgers would find that the employees of
the railroads herein are "employees" within the meaning of Section 8 ( b) (4) of the Act.
He would further find that Local 1205 violated the Act by inducing such employees not
to handle the Charging Company 's freight.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1219
or any other employer other than Atlantic-Pacific Manufacturing
Corporation, to engage in a strike or concerted refusal in the course
of their employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or com-
modities or to perform any services, when an object thereof is (a)
to force the aforementioned companies or any other employer or
person to cease doing business with Atlantic-Pacific Manufacturing
Corporation, or (b) to force or require Atlantic-Pacific Manufac-
turing Corporation to recognize or bargain with Local 1205 as the
collective-bargaining representative of its employees, unless and un-
til certified as such representative in accordance with the provisions
of Section 9 of the Act.
(b) Local 707 from engaging in, or inducing or encouraging the
employees of Middle-Atlantic Transport Company and Terminal
Cartage Corp., or any other employer except Atlantic-Pacific Manu-
facturing Corporation to engage in, a strike or concerted refusal in
the course of their employment to use, manufacture, process, trans-
port, or otherwise handle or work on any goods, articles, materials,
or commodities, or to perform any services, where an object thereof
is (a) to force Middle Atlantic Transport Corporation, Inc., Ter-
minal Cartage Corp., or any other employer or person to cease
doing business with Atlantic-Pacific Manufacturing Corporation, or
(b) to force or require Atlantic-Pacific Manufacturing Corporation
to recognize or bargain with Local 1205 as the collective-bargaining
representative of its employees, unless and until certified as such
representative in accordance with the provisions of Section 8 of
the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at their respective business offices of the notices applica-
ble to them, as attached hereto marked "Appendix A" and "Ap-
pendix B." 11 Copies of said notices to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by
the respective authorized representative of each Respondent herein,
be posted by said Respondents immediately upon receipt thereof
and maintained for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by said
Respondents to insure that the notices are not altered, defaced, or
covered by other material.
(b) Mail signed copies of Appendix A and Appendix B respec-
tively to the Regional Director for the Second Region for posting
at the offices of Atlantic-Pacific Manufacturing Corporation, Acme
u 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."
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fast Freight, Inc., Alan Transport, Associated Transport, Inc.,
Wilson Freight Forwarding Co., Republic Carloading and Distribut-
ing Co., Middle Atlantic Transport, Inc., Terminal Cartage Corp.,
Durkee Company, Inc., and R.C. Motor Lines, the Companies will-
ing, for 60 consecutive days in places where notices to employees
are customarily posted. Copies of the notices, to be furnished by
the Regional Director for the Seco rid Region, shall be returned forth-
with to the Regional Director after they have been signed by the
respective official representatives of the Respondent Unions for such
posting.
(c) Notify the Regional Director for the Second Region in writ-
ing, within 10 days from the date of this Order, what they have
taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that Local 1205 violated Section
8(b) (4) (A) and (B) of the Act by inducing employees of The
Delaware, Lackawanna and Western Railroad Company, Bush Ter-
minal Railroad, and Long Island Railroad not to handle the Charg-
ing Company's freight.12
^ In "The Remedy" section of the Intermediate Report, the Trial Examiner expressed
his opinion that an effective remedy in this case could not be fashioned because the
General Counsel failed to issue a complaint against Seafarers International Union in
whose support and with whose knowledge and cooperation Respondent Local 1205 had
engaged in the unfair labor practices found herein. The issuance of complaints is within
the sole province of the General Counsel of the Board and we are satisfied that he had
valid reasons for not proceeding against the Seafarers. We therefore are of the opinion
that the Order issued herein against Locals 1205 and 707 will effectuate the policies of
the Act. Contrary to the General Counsel's argument in his brief, however, we find that
the Trial Examiner was justified in exploring the activities of the Seafarers as necessary
background for the unlawful actions of the Respondents herein.
APPENDIX A
NOTICE TO ALL MEMBERS or LOCAL 1205, INTERNATIONAL BROTHER-
HOOD Or TEAMSTERS, CHAUFFEURS, WAREH:OUSMNIEN AND IIELPERS
Or AMERICA, AND TO ALL EMPLOYEES Or ATLANTIC-PACIFIC MANU-
FACTURING CORPORATION, ACME FAST FREIGHT, ALAN TRANSPORT,
ASSOCIATED TRANSPORT, INC., WILSON FREIGHT FORWARDING CO.,
REPUBLIC CARLOADING AND DISTRIBUTING CO., MIDDLE-ATLANTIC
TRANSPORT, INC. TERMINAL CARTAGE CORP., DURKEE COMPANY,
IN c., AND R.C. MOTOR LINES
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 employees of
Acme Fast Freight, Inc., Alan Transport, Associated Trans-
port, Inc., Wilson Freight Forwarding Co., Republic Carload-
ing and Distributing Co., Middle-Atlantic Transport, Inc., Ter-
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1221
minal Cartage Corp., Durkee Company, Inc., and R.C. Motor
Lines, or any other employer other than Atlantic-Pacific Manu-
facturing Corporation, to engage in a strike or concerted re-
fusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods,
articles, materials, or commodities, or to perform any services
when an object thereof.is (a) to force the aforementioned com-
panies or any other employer or person to cease doing business
with Atlantic-Pacific Manufacturing Corporation, or (b) to
force or require Atlantic-Pacific Manufacturing Corporation to
recognize or bargain with us as the collective-bargaining repre-
sentative of its employees, unless and until we are certified as
such representative in accordance with the provisions of Section
9 of the Act.
LOCAL 1205, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL MEMBERS OF LOCAL 707, INTERNATIONAL BROTHER-
HOOI) OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA AND ALL EMPLOYEES OF ATLANTIC-PACIFIC MANU-
FAOTURING CORPORATION, MIDDLE-ATLANTIC TRANSPORT, INC., AND
TERMINAL CARTAGE CORP.
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 employees of
Middle-Atlantic Transport, Inc. and Terminal Cartage Corp.,
or any other employer other than Atlantic-Pacific Manufactur-
ing Corporation, to engage in a strike or concerted refusal in
the course of their employment to use, manufacture, process,
transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services when an
object thereof is (a) to force the aforementioned companies or
any other employer or person to cease doing business with
Atlantic-Pacific Manufacturing Corporation, or (b) to force or
require Atlantic-Pacific Manufacturing Corporation to recog-
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize or bargain with Local 1205, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
as the collective-bargaining representative of its employees, unless
and until certified as such representative in accordance with the
provisions of Section 9 of the Act.
LOCAL 707, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
ISSUES
(1) Whether Respondent Unions' have violated Section 8 (b) (4) (A) and (B)
of the Act 2 by following trucks of a company with whom it had a dispute to
premises of common carriers by truck and rail and having their agents approach
these common carriers, in order to induce them to refuse to handle the goods of
the Charging Party, a manufacturer, with the object of forcing the common car-
riers to cease doing business with the Charging Party, and also to require the
Charging Party to recognize one of the Respondents, a noncertified union.
(2) Whether a "hot-cargo" clause in a collective-bargaining agreement which
reserves to employees the right not to handle goods declared "unfair" by the union,
removes from the statutory prohibion against secondary work stoppages union
activity which, absent the contract, would be in violation of the Act.
(3) Whether one of the Respondent Unions, which is not a party to the "hot-
cargo" contract can, nevertheless, avail itself of its alleged protection.
(4) Whether the prohibition in Section 8 (b) (4) (A) against secondary work
stoppages applies to railroads and their employees.
Upon the entire record in this case, upon consideration of the oral arguments
and motions of counsel, including the brief filed by counsel for Local 1205, and
1 The Board having been notified by the AFL-CIO that it deems the Teamsters' cer-
tificate of affiliation revoked by convention action, the Identification of this union is
hereby amended.
2 The principal provision involved is Section 8(b) (4) (A) and (B) of the National
Labor Relations Act, as amended (61 Stat. 136, 29 U.S.C. 151, et seq.), which reads as
follows :
SFc. '8(b). It shall be an unfair labor practice for a labor organization or its
agents-
a • • e • s I
(4) 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, articles,
materials, or commodities or to perform any services, where an object thereof is :
(A) forcing or requiring any employer or self-employed person to join any labor or
employer organization or 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
organization 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.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1223
citations of cases alleged to be dispositive of the issues in this proceeding, and
from observation of the demeanor of the witnesses while testifying, the Trial Ex-
aminer makes the following:
FINDINGS OF FACT
The Atlantic-Pacific Manufacturing Corporation, the Charging Party, hereinafter
referred to as "A-P," a New York corporation, manufactures marine lifesaving and
water sport equipment at its two plants in Brooklyn, New York. During the year
1956, the Company purchased materials valued in excess of $500,000 which were
transferred to the two plants in interstate commerce directly from States of the
United States other than the State of New York. During the same period of time
the Atlantic-Pacific Manufacturing Corporation sold products valued in excess of
$1,000,000 which were shipped from its two Brooklyn plants in interstate com-
merce directly to States of the United States other than the State of New York.
There is no issue concerning the jurisdiction of the National Labor Relations
Board, referred to hereinafter as the Board. Therefore, it is conceded and found
that the Atlantic-Pacific Manufacturing Corporation is engaged in commerce within
the meaning of the Act. It is also conceded and found that Local 707 and Local
1205, both affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, the Respondent Unions herein, are labor
organizations within the meaning of Sections 2(5), 8(b) and 10(e) of the Act.
On May 17, 1957, Ernest Skoldberg, vice president of the Atlantic-Pacific Manu-
facturing Corporation, "A-P," testified that two men whose names he does not
know, come to the plant office, presented credentials which showed them to be
representatives of the Seafarers International Union and stated to Skoldberg "that
they were going to organize the shop." They made no claim that they represented
any of the employees. They inquired as to the number of employees in the plants
and their working hours to which Skoldberg replied that he was not at liberty to
disclose this information. The union representatives were evidently dissatisfied with
Skoldberg's answer because they indicated it would be useless to pursue the conver-
sation, whereupon they left.
On June 5, 1957, the Seafarers International Union, hereinafter referred to inter-
changeably as "S.I.U." and "Seafarers," began to picket A-P's two plants. The
signs carried by the pickets read as follows:
THE EMPLOYEES OF THIS ESTABLISHMENT ARE NONUNION.
WE ASK THEM TO JOIN WITH US FOR BETTER WAGES, BETTER
WORKING CONDITIONS AND SENIORITY.
Ernest Skoldberg testified that during the morning of June 10, 1957, he received
a telephone call from the Company's Atlantic Avenue plant guards' office that
union representatives were there who wished to speak to him and his father. When
they arrived at the plant guards' office, Ralph Quinnonez, president of Local 1205,
Edmund Brovarski, and Thomas Salvio, business representatives, introduced them-
selves and presented their union credentials.3 Brovarski stated that his union repre-
sented a majority of A-P's five truckdrivers and requested the Company to recog-
nize and bargain with Local 1205. The elder Skoldberg then asked to see a copy
of the Union's proposed contract and was told by Brovarski that he did not have
a contract with him. Skoldberg requested additional time to consult with other
company officials and informed Brovarski that he would contact him in a couple
of days 4 whereupon the union representatives departed.
It was stipulated that Ralph Quinnonez, Edmund Brovarski, Sigmund Brovarski,
Thomas Salvio, John Dwyer, and Christopher J. Porter were agents of Local 1205 within
the meaning of Sections 2(13), 8(b), and 10(e) of the Act. Quinnonez resigned as presi-
dent of Local 1205 of the Teamsters in August 1957, and is now employed by the
Seafarers International Union, Division of Marine Allied Workers. Quinnonez testified
that after resigning as president of Local 1205, he was assigned by S.I.U. "to go out
and help Local 1205 continue their operation." Dwyer is employed as a business repre-
sentative by the Seafarers International Union and in the early part of June 1957, he
was assigned by S.I.U. "to work with" Local 1205 of the Teamsters.
4 Salvio testified Skoldberg said he would telephone that same afternoon and the younger
Skoldberg testified that his father told the union representatives he would contact them
"in a couple of days." Quinnonez' testimony was that they were told by Skoldberg that
"we will let you know." Skoldberg's testimony Is credited as it is not believed that his
father would have committed himself to answer such an important request within a
matter of hours.
1224 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In an effort to determine why the plants were being picketed and what Local
1205 of the Teamsters and the Seafarers International Union wanted the Company
to do in order to have the pickets removed , the younger Skoldberg , on advice of
his attorney , telephoned one, Bernstein , an S.I.U. official , on the afternoon of
June 10, and arranged a meeting for the following morning at the S . I.U. head-
quarters in Brooklyn , New York. Accompanied by another company official
(Lawrence DiGuglielmo ) Skoldberg met at 11 a.m . on June 11 with S.I . U. repre-
sentatives , Bernstein , Tanner, and their attorney , Horowitz . At the outset of the
meeting, Bernste in stated that he wanted to make it clear that the Seafarers did
not claim to represent a majority of the A-P's approximately 150 production and
maintenance employees (which did not include the five truckdrivers ),5 and Horo-
witz added that, if and when, they signed up 51 percent of the production and
maintenance employees , they would request A-P to recognize and bargain with the
Seafarers . Whereupon , Skoldberg asked if this were so why were the plants being
picketed now, to which S.I.U.'s representatives replied that " it was an organiza-
tional picket line. .
At this point in the discussion , Sigmund Brovarski , secretary-treasurer of Local
1205 of the Teamsters , entered the conference room and announced that A-P's
five truckdrivers had gone out on strike an hour ago , at about 10 : 30 a.m., which
was subsequent to the time Skoldberg had left for the meeting with the union
officials. Brovarski then notified the company representatives that even though
A-P should sign a contract with Teamsters Local 1205 that he would not allow the
truckdrivers to return to work "until the production and maintenance employees
signed up with the Seafarers Union." Brovarski also stated that with the truck-
drivers on strike no shipments would be allowed to go in or out of A-P's plants as
it was Local 1205's policy to respect another union 's picket line . Skoldberg testi-
fied that, "the end result was that should we even sign up with the Teamsters .. .
pickets would still be there from both unions. . . . So we walked away from the
meeting knowing nothing more than when we went there." 6
Immediately upon the five truckdrivers going on strike on June 11 , the pickets
began to distribute leaflets at the two A-P plants and they carried a Teamsters sign
in addition to the Seafarers sign, which read as follows:
THE TRUCKDRIVERS OF A-P ARE ON STRIKE.
PLEASE DO NOT PATRONIZE.
LOCAL 1205, TEAMSTERS.
Prior to June 11, when its five truckdrivers went on strike ,7 the Company used
its five trucks not only to make deliveries to its customers within the Metropolitan
New York City area but also to pick up and bring freight to common carriers,
both trucks and rail, for transhipment to the ultimate consignees in various sec-
tions of the United States . From June 11, when the five truckdrivers went on
strike, until June 26, the Company did not operate its five trucks . Beginning on
June 27,8 A-P made arrangements with M & L Commercial Movers, herein called
"M & L," a partnership comprised of Rocco Mamolite and Solomon Lieberman,
to perform the functions heretofore discharged by the five striking truckdrivers.
In addition to using the two trucks which it owned , M & L was also to furnish
drivers and helpers for the five A-P trucks.9
On August 12, 1957, Atlantic-Pacific Manufacturing Corporation , pursuant to the
provisions of the Act , filed an amended charge to a charge originally filed with the
e A-P employed in June 1957 , approximately 190 persons of whom 5 were truckdrivers,
150 manufacturing employees, and 35 executive and white -collar employees.
9 On June 11 , 1957 , Atlantic-Pacific Manufacturing Corporation filed a representation
petition alleging that both Local 1205 of the Teamsters and Seafarers had requested
recognition as representatives of its employees . On August 20, 1957, Local 1205 filed
with the Board a petition requesting that it be certified as a representative of "all truck-
drivers-excluding all other employees ." On August 29, 1957, the factory employees of
A-P formed an independent union, called the Life Saving Equipment Employees Union,
Inc., and on September 19 filed its petition with the Board for representation of a unit
including "manufacturing , maintenance [ and] truckdriving employees."
7 One of the striking truckdrivers returned to work for A-P in August 1957 as a
production employee.
80n June 26 , 1957, other employees of A-P operated the A-P trucks for I day.
6 Prior to entering into this arrangement , M & L's two trucks were normally operated
by Mamolite and his partner Lieberman . They did not employ any helpers regularly but
only when needed which was infrequently . However , M & L did employ occasionally, prior
to June 28 , 1957, truckers who owned and operated their own trucks.
LOCALS 1205 & 707 INT 'L BROTHERHOOD OF TEAMSTERS , ETC. 1225
Board on July 2, 1957, against Respondent labor organizations . 10 Said charges
complained that the Unions sponsored secondary boycott action on the part of the
freight carriers ' employees within the meaning of Section 8 (b)(4)(A) in that they
induced the latter to refuse to handle A-P's freight when it was brought to various
carriers ' for out-of -town delivery . The Regional Director , acting for the General
Counsel , issued a complaint on August 22, 1957, later amended by a bill of par-
ticulars, alleging violations of the National Labor Relations Act, 61 Stat . 136, as
amended , herein called the Act, within the meaning of Section 8(b) (4) (A) and
8(b)(4)(B).
The complaint , as amended , alleges, in substance , that Respondent Local 1205
has induced employees of the following truck and rail carriers , viz.: Alan Trans-
port Co., Republic Carloading Co., Middle Atlantic Transport Co., Terminal Cart-
age Co., Acme Fast Freight, Associated Transport, Durkee," R.C. Motor Lines,
Wilson Freight, The Delaware, Lackawanna and Western Railroad, Bush Terminal
Railroad, and Long Island Railroad, not to handle A-P's freight, with the object
of forcing the above-named companies and railroads to cease transporting A-P's
freight. In addition , the complaint alleges that Local 1205 undertook these activi-
ties with the purpose of forcing A-P to recognize or bargain with it, although
Respondent Local 1205 had not been certified as the representative of A-P's em-
ployees. With respect to Local 707, the complaint alleges it is the bargaining
representative of the employees of Terminal Cartage Corporation and Middle-
Atlantic Transport Company, and that it has induced these companies' employees
to refuse to handle A-P's freight with the purpose of forcing Middle-Atlantic and
Terminal to cease doing business with A-P in order that A-P would recognize and
bargain with Local 1205. The complaint also alleges that Respondent Local 707
engaged in such alleged activities in order to force or require Terminal Cartage
Company to cease doing business with Middle-Atlantic Transport Company.12
On September 12, the Respondent Unions filed their answers denying the com-
mission of any unfair labor practices. Hearings were held in New York City from
November 12 to November 21, 1957, inclusive, before Henry S. Sahm, the duly
designated Trial Examiner . All parties were represented by counsel, and were
afforded full opportunity to participate in the hearing, to introduce relevant evi-
dence and to argue orally.
At various times during the course of the hearing, Respondent Local 1205 re-
quested that written statements obtained in the investigation of this case by the
General Counsel from certain witnesses for the General Counsel be made available
to Respondent Union for examination. The motions were denied. In its brief the
said Respondent cites the cases of Jencks v. U.S., 353 U.S. 657 and Communist
Party of U.S. v. Subversive Activities Control Board (C.A., D.C.). The Board
ruled in The Great Atlantic and Pacific Tea Company,13 (which is determinative of
the issues raised by Respondent in this proceeding on its motion to produce) that
the Jencks doctrine applies to criminal cases and not to proceedings tried in accord-
ance with the Administrative Procedures Act. Therefore, held the Board, the
General Counsel is not required to furnish respondent affidavits of witnesses in its
files pertaining to the investigation of charges against a respondent.
The Court of Appeals for the District of Columbia, in the case of Communist
Party v. Subversive Activities Control Board, supra, decided 4 months after the
10 The charge and the amended charge also named the Marine Allied Workers , Seafarers
International Union of North America, Atlantic and Gulf Coast Districts, AFL-CIO.
However, when the complaint was issued , Seafarers was omitted as a party Respondent
although the record in this proceeding appears to indicate that the actions of Local 1205
In requesting recognition as bargaining representative for the 5 truckdrivers was in-
stigated by Seafarer's as an initial step to obtain recognition by A-P of its approximately
150 production and maintenance employees . The organizational activities directed toward
the 5 ttruckdrivers appear to have been a technique to accomplish Seafarer's primary
objective of being recognized as the bargaining representative of A-P's 150 production
and maintenance employees.
' Unless otherwise indicated , when the term "trucking companies ," "common carriers,"
or a similar descriptive phrase is used herein , this includes Durkee Co . which is 'a whole-
sale dealer in marine supplies.
12 Neither the testimony nor the theory under which the General Counsel's representative
tried this case or argued it , indicates that Local 707's alleged conduct was intended to
force Terminal to cease doing business with Middle -Atlantic . This allegation of the
complaint is, 'therefore , dismissed.
23 1.18 NLRB 1280.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's decision in the Atlantic and Pacific case, supra, held that the Jencks rule
applies to administrative "adjudications." The court directed the Subversive Activi-
ties Control Board to allow the Communist Party to examine a written report
submitted to the Federal Bureau of Investigation by a Government witness testi-
fying at a hearing on the Party's listing as a "communist-action organization." The
opinion notes that the Government did not claim privilege, that the witness' report
was made at or about the time of the event about which she testified, that the
report related to the subject of her testimony, and that the testimony was impor-
tant. See also in this connection, 56 Michigan Law Review, No. 2 at page 314
(December 1957 issue).
Contentions
The General Counsel contends that when the Respondent Unions requested the
employees of the various trucking companies and railroads not to handle A-P's
freight because of the "labor dispute" at its two plants, that it was the intention
of the Unions to thereby exert pressure upon these employees with the object to
compel their neutral employers to cease doing business with A-P and thereby to
force A-P to recognize Local 1205 as the statutory bargaining representative of its
five truckdrivers, although not certified as such.
However, Respondents defend their actions on three grounds: First, it is denied
that employees of the trucking companies were so induced, but rather that such
requests not to handle A-P's freight were limited exclusively to the employers (not
the employees) which, Respondents contend is not proscribed by Section 8(b)(4)
(A), since the latter forbids inducement or encouragement of "employees" but not
employers; second, with respect to the railroads, their workers are not "employees"
within the meaning in which that term is used in Section 8(b) (4) (A) and thus
are not subject to inducement in the statutory sense of the Act; third, as to Termi-
nal Cartage Corporation and Middle-Atlantic Transport Company, whose freight
handling employees are members of Respondent Local 707, it is admitted they
refused to handle A-P's freight pursuant to Local 1205's request, but argues Re-
spondent Local 707, the employees' refusal was not unlawful because it has agree-
ments with both Terminal and Middle-Atlantic containing "hot-cargo" clauses
which provide that these two companies' employees need not handle struck goods
of another employer. Moreover, Local 1205 contends that even though it was not
a party to the contract between the two aforementioned companies and Local 707,
that it can avail itself of the "hot-cargo" clause and thereby request these two
companies' employees (members of Local 707) to exercise their contract right not
to handle struck goods and that their bringing the A-P dispute to the knowledge
of the members of Local 707 (Terminal's and Middle-Atlantic's employees) was
protected activity not in violation of Section 8(b) (4) (A). In other words, argues
Local 1205, the refusal of the employees of Middle-Atlantic and Terminal to
handle A-P's freight (by virtue of the hot-cargo clause) is not within the normal
work requirements of their employment; that Local 1205 simply activated these
employees to exercise their existing contract right to refuse to handle "hot" goods,
and that such refusal could have no coercive effect upon the employers (Middle-
Atlantic and Terminal) because they had agreed prior to the refusal that their
employees would have the right to refuse to handle "hot" goods.
In determining whether the existence of these hot-cargo provisions in the con-
tracts between Local 707 and the two carriers operate as a bar to the complaint
(and which Local 1205 seeks to avail itself of), it might be well to review what
the Board and the courts have decided with respect to hot-cargo contracts.
Discussion
Section 8(b)(4()(A) makes it unlawful for a labor union to apply pressure to
the employees of a neutral employer in order to force said employees to refuse
to perform work with the "object" of compelling their employer to cease doing
business with the struck employer. However, argue the Respondent Unions, in-
ducement of employees not to handle goods alleged by the Union to be "unfair,"
is exempt from the proscription of this section, where the employer by agreeing
to the inclusion of a hot-cargo clause in his contract with the union, has con-
sented in advance that the employees covered by the contract will not be required
to handle goods designated by their union as "unfair." In determining whether
such a clause or the attempt to enforce it is illegal, it might be well at the outset
to have recourse to the legislative history of Section 8(b) (4) (A) of the Act 14 and
14 The legislative history of Section 8(b) (4) (A) of the Act is discussed in N.L.R.B. v.
Washington-Oregon Shingle Weavers' District Council, etc., 211 F. 2d 149, 152-153
LOCALS 12 0 5 & 7 0 7 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1227
the interpretations that the Board and the courts have placed upon it. "The basic
purpose and objective of [Section 8(b)(4)(A)] of the Act is to prohibit the in-
volvement of employers in labor disputes of other employers with whom they are
doing business." 15
It was decided by the Board in 1949 and affirmed by the Court of Appeals for
the Second Circuit in 1952 that Section 8(b)(4) (A) does not invalidate a hot-
cargo clause.16 The Board held that the company and the union agreeing in ad-
vance that "unfair" goods need not be handled, there was no inducement or
encouragement of the employees not to handle them since the union was only
encouraging the employees to exercise their rights under the hot-cargo clause in
their employment contract, and the employers acquiesced in the concerted refusal
of the employees in accordance with their advance agreement. The decision was
upheld by the Court of Appeals for the Second Circuit which stated: "Consent in
advance to honor a hot cargo clause is not the product of the union's forcing or
requiring any employer . . . to cease doing business with any other person." 17
In 1954, the effectiveness but not the validity of hot-cargo clauses was dimin-
ished in the McAllister Transfer, Inc., case 18 by the imposition of limitations on
the methods by which they could be enforced. Three Board members held the
hot-cargo defense of the union in this case to be without merit. Two members of
the three, who comprised the majority, held such a clause to be unlawful and no
defense. The third member, who was then chairman of the Board, found the hot-
cargo clause not to be per se invalid but he distinguished Conway on the ground
that in McAllister the contracting employer's repudiation of the clause precluded
the union from asserting it as a defense to an 8(b) (4) (A) charge. Two Board
members dissented on the authority and reasoning of Conway.
The following year, 1955, a majority of the Board held in the Sand Door and
Plywood Co. case 19 that neither the execution of a hot-cargo provision nor a direct
appeal to the neutral employer is unlawful but that inducement of employees of
a neutral employer not to handle struck goods constitute an unfair labor practice.
This decision was affirmed by the Court of Appeals for the Ninth Circuit.20 Later,
the Board in American Iron and Machine Works Company,21 decided in 1956,
went beyond the Sand Door doctrine, by holding that:
While Section 8 (b) (4) (A) does not forbid the execution of a hot cargo clause
or a union's enforcement thereof by appeals to the employer to honor his con-
tract, the Act does, in our opinion, preclude enforcement of such clause by
appeals to employees, and this is so whether or not the employer acquiesces
in the union's demand that the employees refuse to handle the "hot" goods.
[Emphasis supplied.]
The Court of Appeals for the District of Columbia, however, denied enforcement
of the Board's order against the contracting union, holding that if hot-cargo con-
tracts are legal then the contracting union's enforcement of it by appeals to its
members is also valid because advance consent by the employer to such conduct
does not constitute a "concerted refusal" or "a forcing or requiring" within the
meaning of Section 8 (b) (4) (A) because if an employer lawfully enters into such
(C.A. 9). See also 93 Cong. Rec. 3953, 4155, 4156, 4198-4199, 4323, 7683, 7969. For
additional material on congressional intent, see H. Conf. Rept. 510 on H.R. 3020, 80th
Cong., 1st sess., pp. 43, 44, and N.L.R.B. v. Denver Building and Construction Trades
Council, et at. (Gould & Preisner), 341 U.S. 675, ,686; Douds v. Metropolitan Federation
of Architects, etc., 75 F. Supp. 672 at pages 675, 676 (S.D., N.Y.).
's N.L.R.B. v. Local 1976, United Brotherhood of Carpenters and Joiners, etc., 241 F. 2d
147, 156 (C.A. 9).
"International Brotherhood of Teamsters, Local 294 (Rabouin d/b/a Conway's Ex-
press), 87 NLRB 972, affd. sub nom. Henry V. Rabouin v. N.L.R.B., 195 F. 2d 906
(C.A. 2). See also Pittsburgh Plate Glass Company, 105 NLRB 740.
17 Id., at page 912. See Milk Drivers and Dairy Employees Local No. 338, etc. v.
N.L.R.B., 245 F. 2d 817 (C.A. 2).
11'110 NLRB 1769.
'0113 NLRB 1210.
20 Enfd. sub nom. N.L.R.B. Y. Local 1976, United Brotherhood of Carpenters and Joiners,
etc,, 241 F. 2d 147 [affd. 357 U.S. 93]. See also N.L.R.B. v. Local 11, United Brotherhood
of Carpenters, etc., 242 F. 2d 932 (C.A.6) ; Booher Lumber Co., Inc., 117 NLRB 1739.
115 NLRB 800, 801.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an agreement , a union is not forcing him to cease doing business with some other
person but merely compelling him to live up to his own voluntary agreement.22
However, another facet of this problem arises where the neutral employer is a
common carrier, because a common carrier is legally obligated to accept and trans-
port freight. The Board was confronted with such a situation in the Genuine Parts
Company case 23 decided November 8, 1957, where the Company was struck by a
union which had "hot-cargo " clauses in its contracts with trucklines that hauled
Genuine Parts Company freight. The union had "advised" its members, employed
by these trucklines , that they could refuse to handle freight from the Genuine Parts
Company. Chairman Leedom and Member Jenkins held that the only possible
justification for upholding a hot-cargo clause is that they amount to an exercise
of the employer 's right to choose his own customers . In the case of a common
carrier, however, the principal opinion stated , the employer is not free to withhold
his services at will from any class of customers . Hence he cannot agree with the
union in advance to withhold services from customers designated by the union.
They took the position that the Board should adopt "an affirmative decisional rule"
that execution of a hot -cargo clause constitutes "prima facie evidence of union
inducement or encouragement " of secondary boycott activities . Then a violation
would be established when it was proved that a shipper had been refused the use
of a common carrier's facilities . 24 Member Rodgers in the same case , went farther
and held such agreements contrary to public policy and invalid in all industries.
Member Bean concurred in the decision but only on the basis of the ruling of the
Board 's majority in the Sand Door case, supra , that although a hot-cargo clause is
valid and enforceable , a violation occurs when the union seeks to enforce it by
appeals to employees , as distinguished from employers . Former Member Murdock
adhered to his view , expressed in previous decisions , that such clauses are valid
and enforceable , and that nothing in the law forbids a union from negotiating a
hot-cargo agreement or from taking steps to obtain compliance with it.
The initial question for consideration then is to determine whether in applying
the principles enunciated above to the facts in this proceeding , which are herein-
after described , the Respondent Unions violated Section 8(b)(4) (A) of the Act 25
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Trucking companies
1. Alan Transport Company
On June 28, 1957, Mamolite and Lieberman drove an M & L truck 28 loaded
with A-P freight from the Clairmont Avenue plant of A-P to the Alan Transport
Company, Brooklyn, New York, for reloading on Alan's trucks, from where it
was to be shipped to various destinations in the United States. As Mamolite drove
away from the plant (Lieberman accompanied him as helper), the truck was fol-
lowed by an automobile driven by Ralph Quinnonez, president and business agent
of Respondent Local 1205 of the Teamsters. When they arrived at Alan and
while Mamolite was backing the truck into the loading platform, preparatory to
turning the bills of lading over to Alan's receiving clerk, Quinnonez parked his
car and walked into Alan Transport's freight office. Mamolite testified that Quin-
22 Sub. nom . General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 886,
AFL-CIO v. N.L.R.B., 247 F. 2d 71 [reversed and remanded 357 U.S. 93]. The court in
rejecting the "public policy" argument stated at page 74: "We think that, although the
public Is involved, this section has for its purpose the protection of those persons who
might be subjected to a secondary boycott, which Is proscribed by the section."
23 119 NLRB 399.
2 The Interstate Commerce Commission, In Galveston Truck Line, No. MC-C-1922,
decided December 16, 1957, held that motor truck freight haulers who rely on hot-cargo
clauses to refuse to accept freight from a nonunion operator engage in an unlawful
practice because it violates the operating certificates issued by the Interstate Commerce
Commission In that adherence to the hot-cargo clause at the expense of the legal obliga-
tion to accept and transport freight will result in loss of the ICC certificate authorizing
operations. The Commission also held that a carrier may not bargain away its statutory
obligations to the public and thereby relieve itself of these obligations.
25 The alleged violation of Section 8(b) (4) (B) Is treated separately, infra.
28 Prior to entering into this arrangement, M & L's two trucks were normally operated
by Mamolite and his partner Lieberman. They did not employ any helpers regularly, but
only when needed, which was infrequently . M & L did, however, occasionally employ,
prior to June 28, 1957 , independent contractors who owned their own trucks.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1229
nonez approached the receiving clerk, who is not identified by name, showed him
his union credentials and pointing to Mamolite stated that Mamolite was a "strike-
breaker" and "fink" and requested Alan Transport not to accept the freight as it
came from a factory where there was a strike. The shipping clerk said he would
have to check with his union whereupon he made a telephone call. After he com-
pleted the telephone call, Mamolite testified that the receiving clerk told him he
would be unable to accept A-P's freight.
Quinnonez' version of what transpired at the time and place related above was
that he did not speak to the receiving clerk but to Mike Gardio, owner of Alan
Transport Company, and when he asked Gardio not to accept A-P's freight that
Gardio acceded to his request, after checking with Local 806 of the Teamsters,
which represented Alan's employees and with which Alan had a collective-bargain-
ing agreement.
Regardless of whose version is accepted of what transpired at Alan, Quinnonez'
request that A-P's freight should not be handled is a violation of Section 8(b)(4)
(A) under the doctrine enunciated in the Genuine Parts case. 27 In that case it was
held that a violation is established when it is shown that a shipper has been refused
the use of a common carrier's facilities because of a union inducing a carrier not
to handle freight of a struck plant. A fortiori, in the circumstances of the Alan
incident, as there was no hot-cargo clause involved, and furthermore, the object of
the inducement was unlawful in that it was intended to force Alan, a neutral com-
mon carrier, to refuse its facilities to A-P, a shipper, in order that A-P would
recognize and bargain with Respondent Local 1205.28
2. Wilson Freight
On August 19, 1957, Mamolite brought a load of freight by A-P truck to Wilson
Freight Forwarding Company, Pier 22, East River, New York City, for shipment
to various points in the United States. While the truck was being backed into
Wilson's platform by his helper, Mamolite walked to the freight office to present
the bills of lading. As he handed them to the receiving clerk, Quinnonez jumped
onto the loading platform, identified himself as a representative of Local 1205
and, according to Mamolite, requested the receiving clerk not to accept the A-P
freight, stating that Mamolite was a strikebreaker hauling freight for a struck plant.
The clerk, however, accepted the freight.
Quinnonez denied that he spoke to the receiving clerk or anyone else at Wilson,
testifying that he merely walked onto the loading platform in order to copy down
the names and addresses of the consignees of the A-P freight. He did testify,
however, that he telephoned the offices of Respondent Local 707 of the Teamsters
and notified "Eddie," the person at Local 707 who answered the telephone, that
A-P freight was being unloaded at Wilson and requested him "to contact the boss
over at Pier 22 and tell them what is happening with A-P, to enforce their hot
cargo clause." Quinnonez admitted that although his purpose in following the
A-P truck to Wilson was to induce the employer there not to accept the freight,
he inconsistently denied that when he arrived at Wilson, he did not ask to see
the employer or anyone else there, but merely proceeded to copy down the names
of the consignees to whom A-P's freight was being shipped. When asked on cross-
examination what his purpose was in writing down the consignees' names, he
replied, "so that we could call or send a telegram to the owners of where the stuff
was going and ask them for cooperation. . . . They could very well call back and
threaten not to take any more cargo and that might be advantageous to us."
Robert E. Kenney, a member of Respondent Local 707, is employed by M & D
Consolidating Company, Pier 22, New York City, as a receiving clerk for various
common carriers located at this pier, including Wilson Freight. Kenney testified
on behalf of Local 1205, that Mamolite brought freight to him for shipment and
that Quinnonez was present on the platform at the time.29 Kenney, whose de-
2' Footnote 23, supra.
21 See N.L.R.B. v. Local 1976, Brotherhood of Carpenters and Joiners, etc., 241 F. 2d
147 at p. 153 (C.A. 9), where the court stated :
An employer may well remain free to decide, as a matter of business policy, whether
he will accede to a union's boycott demands, or if he has already agreed to do so,
whether he will fulfill his agreement. An entirely different situation, however, is
presented * * * when it is sought to influence the employer's decision by a work
stoppage of his employees.
20 Respondent Local 707 has a collective-bargaining agreement with M & D Consolidat-
ing Company which contains a hot-cargo provision . The hot-cargo question is discussed
at page 1235, infra.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meanor and manner of testifying while on the witness stand, was not impressive,
stated, evasively, and in an attempt to fence with the General Counsel that he
could not "recall" or "remember" whether Quinnonez asked him not to accept the
freight. At the same time he did not deny that Quinnonez requested him not to
accept the freight. At another point in his testimony when he was asked if Quin-
nonez requested him not to accept A-P's freight, he equivocally answered, "I don't
remember." It seems incredible that he would not remember such a critical aspect
of this incident. He did acknowledge, however, that ". . there was a lot of
shouting going on" and that there was a "big commotion." Moreover, many of
Kenney's answers on his direct examination were voiced in response to leading
questions propounded by counsel for Local 1205 which further militates against
the weight to be given his testimony.
It is found, therefore, that Quinnonez, the duly authorized agent of Respondent
Local 1205, requested Wilson Fast Freight, a common carrier and a neutral em-
ployer, through its receiving clerk, Kenney, not to accept A-P's freight, with an
object of forcing Wilson to discontinue doing business with A-P. Under the doc-
trine enunciated in the Genuine Parts Company case, supra, Respondent Local 1205
violated Section 8(b) (4) (A) of the Act when it was established that A-P was
refused the use of Wilson's facilities, a common carrier, under the circumstances
described herein.
3. Durkee Co. Inc.
On August 20, merchandise was sent by A-P truck to Durkee Inc., a wholesale
marine supply store in New York City. Quinnonez followed the truck in his auto-
mobile and when Mamolite walked into the Durkee store, Quinnonez was directly
behind him. Mamolite testified that Quinnonez approached the telephone switch-
board operator, identified himself as a representative of Local 1205, and requested
her not to accept the freight as A-P was on strike. The girl then stepped to the
rear of the office and a man appeared, Mamolite testified, and upon being apprised
of what had occurred, asked Mamolite to what union he belonged. Mamolite
testified that he told this man it was none of his business whereupon this person
affiliated with Durkee told Mamolite that he was a member of Local 807 of the
Teamsters and if there was a question of a labor dispute, he would not accept the
freight. Mamolite testified that he then asked to see the owner of Durkee's but
was informed he was out of town, whereupon he left the store and returned the
merchandise to the A-P plant.
Quinnonez' version of this incident is that he followed the truck from the A-P
plant but he merely asked the telephone operator to see the owner and that she
referred him to another lady who came down from upstairs and that when he was
informed the owner was out of town, he left the store. Quinnonez testified:
"I didn't speak to nobody other than the girls." When he was asked how long
he was at Durkee's, he testified: "About 35 minutes or so."
Edith Schlieman the telephone operator referred to above, who in addition to
her telephone duties, pays the charges on incoming freight, and a witness called
by Respondent Local 1205, testified that Quinnonez asked to see the person in
charge. She called Miss Summers, another employee, who spoke to Quinnonez,
but what he said to Summers, Schlieman testified, she does not know 30
Based upon the uncontradicted fact that the freight consigned to Durkee was not
accepted, it is concluded that the refusal was based upon representations made to
Durkees' employees not to accept A-P's goods as Quinnonez admitted he was at
Durkee's over 30 minutes and that he spoke to "the girls." It is found therefore,
that Respondent Local 1205 violated Section 8(b)(4)(A) by its agent Quinnonez
requesting one or more of Durkees' employees not to accept delivery of the A-P
merchandise in order to force Durkee to cease dealing in the products manufac-
tured by A-P.
4. Acme Fast Freight, Inc.31
On June 26, 1957, A-P freight was delivered to Acme Fast Freight, Brooklyn,
New York, a licensed Interstate Commerce Commission carrier, for shipment to
A-P's customers in various sections of the country. The truck was followed by
Edmund Brovarski, business representative of Respondent Local 1205. Mamolite,
the truckdriver, and Hinsch, an A-P official, testified that when Brovarski arrived
at Acme, he walked onto the loading platform and appealed to the receiving clerk
3 This is based, in small part, on her testimony given in the Federal court proceedings,
August 27 and 28, 1957, which is part of this record (General Counsel's Exhibit No. 6).
81 See 80 NLRB 979.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1231
and other employees of Acme not to accept A-P's freight as the plant was on
strike and the men who were on the A-P truck were "scabs" and "strikebreakers."•
Acme accepted delivery of the A-P freight 32
Ralph Laezza, receiving clerk for Acme and shop steward for the Brotherhood
of Railway Clerks and Steamship Employees, testified that Edmund Brovarski, who
identified himself as a business representative of Local 1205, asked him not to
accept A-P's freight as they were on strike. When Laezza explained that as com-
mon carriers they were obligated by law to take the freight, Brovarski stated that
if he accepted the freight, Local 1205 would be compelled to picket Acme's prem-
ises. This conversation took place in the presence of Anthony Zupo and was cor-
roborated by him. Zupo is a freight checker for the Delaware, Lackawanna &
Western Railroad which shares the loading platform with Acme and has a railroad
siding that services the freight facility occupied by Acme.
Brovarski testified that he spoke to the "supervisor" 33 and that he merely re-
quested him not to accept the freight as A-P was on strike and the people oper-
ating the truck were "scabs and strikebreakers." The "supervisor" then referred
him to Ralph Laezza, Acme's receiving clerk, and Brovarski made the same request
of him that he had made of the "supervisor." 34
It is found that the above-described conduct by Brovarski, Local 1205's business
representative, constituted a violation of Section 8(b) (4) (A) of the Act in that
it induced and encouraged the employees of the neutral common carrier-employer,
Acme, to engage in a concerted refusal to handle the freight of A-P, the struck-
bound shipper. Even assuming Respondent Local 1205's contention that the Union's
request not to handle the A-P freight was made to supervisory personnel and not
"employees," nevertheless, under the holding in the Genuine Parts Company case,
supra, inducing a common carrier for hire not to accept the freight of one with
whom the union has a labor dispute, is in itself an unfair labor practice.35
On another occasion, about 2 months later, Mamolite, accompanied by his part-
ner Lieberman, took freight in an A-P truck to Acme on August 22, 1957. They
were followed by Edmund Brovarski and John Dwyer, business representatives of
Local 1205. According to Mamolite, when they arrived at Acme, Dwyer spoke to
the freight handlers on the loading platform and said, "Don't accept freight from
these people, these are strikebreakers." Mamolite denied this whereupon a "scuffle"
ensued between him and Dwyer which was stopped by the freight handlers and
truckdrivers of other carriers who were present. On both occasions, the A-P
freight was accepted by Acme.
Dwyer denied that he spoke to anyone at Acme on August 22, the time referred
to above. He testified that his sole purpose in following the A-P truck was merely
to ascertain where it was going and to report this information to Respondent Local
1205.36 Dwyer's testimony is not credited as it is believed and found that Dwyer
not only went to Acme with the purpose of inducing its employees not to handle
A-P's freight but that he attempted also to prevail upon them not to accept delivery
of it. Based upon the foregoing, it is concluded and found that such conduct is
proscribed by Section 8 (b) (4) (A) of the Act in that the Respondent Union, Local
1205, by its agent Dwyer, induced and encouraged the employees of the carrier,
Acme, to engage in a concerted refusal to handle A-P's freight, thus attempting
to cause Acme to cease doing business with A-P.
Respondent Local 1205 also contends that in legal intendment the conduct de-
scribed above took place "at the primary situs of the ally Mamolite.. . His pri-
mary situs" being at the location where his trucks were at the time they were
bringing A-P's freight to the various common carriers involved herein. In its brief,
Local 1205 states that "if `an' object of the primary activities is lawful then such
33 Rinsch, production control manager of A-P, testified that after Acme decided to
accept the freight and while it was being unloaded, Brovarski "stood on the side heckling
us, saying that he would see to it that we were marked for life."
33 Based upon Laezza's testimony, this was apparently Arthur Flechter, whom Laezza
described as "the route clerk."
34 Laezza testified that all union matters are referred to him as he is the shop steward.
Accepting Brovarski's contention that he addressed his request to the "supervisor,"
nevertheless, the means employed, namely, that the union would set up a picket line at
Acme if the carrier handled A-P's freight went beyond the bounds of permissible conduct
in that threats and pressures accompanied the request not to transport the freight.
36 Dwyer testified he was assigned by his employer, the Seafarers' Union, for which he is
a business representative, to work with Local 1205, In order that Local 1205 might be
recognized by A-P and enter into a collective-bargaining contract with it. He testified
he was at Acme in the capacity of agent for Local 1205.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct could not be enjoined as violative of the Act," citing Local 618, Automo-
tive Petroleum and Allied Industries Employees Union v. N.L.R.B., 249 F. 2d 332
(C.A. 8). In that case, however, the court found the picketing involved to have
been lawful primary picketing. Therefore, the court's holding is not precedent for
the situation in the instant proceeding where the Respondent's conduct occurred
while A-P's trucks, the primary employer, were present at the premises of various
secondary common carrier employers. Moreover, the evidence in this proceeding
conclusively shows that Local 1205's activities at the docks of the various common
carriers herein was secondary and not primary, its basic purpose being to induce
the carriers' employees not to accept the freight in order to exert pressure on their
respective employers to cease doing business with A-P.
Moreover, although the picketing of the two separate plants of A-P 37 (as well
as the premises of M & L Commercial Movers where Local 1205 had set up picket
lines ) 38 afforded Respondents ample opportunity to reach the A-P employees, and
make a satisfactory display of its dispute, the Union extended the picketing to the
premises of secondary employers where it would necessarily have an impact on
secondary employees.39 Furthermore, the turbulent and coercive methods used by
the Teamsters, working together with the Seafarers, the initiating party, whose pur-
pose was to prevent deliveries of A-P freight to carriers, instead of minimizing the
impact of these various tactics-accentuated it. In these circumstances, it is found
that Local 1205's activities at the various common carriers' premises were aimed
at the carriers and their employees directly, and that it was not merely an incident
of the primary picketing directed against A-P, as its intended objective was dis-
ruption of business between A-P and the various common carriers.
The Court of Appeals for the First Circuit recently held 40 that it is a violation
of Section 8(b) (4) (A) for a union to picket a primary employer's delivery truck
while on premises of a common carrier inasmuch as the union could and did pub-
licize its dispute with the primary employer by picketing at his premises. In that
case the court stated:
Causing other employers, or their employees, to cease doing business with the
primary employer does not have to be the sole objective of picketing on a
secondary employer's premises to make the activities illegal . It is enough if
that eventuality is an objective of the activity.
In these circumstances, the court felt that picketing at the primary employer's place
of business would adequately publicize a labor dispute to his employees. There-
fore, held the court, it could be inferred that picketing of the truck at the premises
of other employers was, at least, in part, for the unlawful purpose of inducing a
secondary boycott.
5. Associated Transport, Inc.41
Hinsch, production control manager of A-P, testified he received a telephone
call on August 19, 1957, from Mamolite who stated he was at the freight terminal
of Associated Transport, Inc., in New York City and that Associated's receiving
clerk, one Zazzarino, refused to accept the A-P freight which had been brought
37 Whether the picketing by the Teamsters and Seafarers at A-P's two plants was un-
lawful is not here decided as the General Counsel did not allege it in his complaint. See
in this connection, Curtis Brothers, Inc., 119 NLRB 232, where the Board ruled that
picketing for recognition by a union supported only by a minority of employees is a
violation of the Act. In Alloy Manufacturing Company, 119 NLRB 307, a union's attempts
to get a customer boycott of the picketed firm was held to violate the statute because the
union illegally was intending to cause economic loss to the employer thereby lessening
the employees' financial job security, amounting to coercion of the workers. In Shepherd
Machinery Company, 119 NLRB 320, it was held that a union violated the Act by picket-
ing for recognition at a time when it did not represent a majority of the employees.
38 Mamolite, one of the partners, has his home next door to the office of M & L Com-
mercial Movers. He arrives at the office in the morning and returns there in the evening.
In the intervening time the office is closed as the partnership employs no office help.
When this office was picketed on June 27 and 28, by Local 1205, the signs read : "These
trucks are operated by M & L Commercial Movers. The employees of M & L Commercial
Movers are nonunion. We ask employees to join with us for better wages and working
conditions."
89 See Brewery and Beverage Drivers, etc. v. N.L.R.B., 220 F. 2d 380 (C.A., D.C.).
40 N.L.R.B. v. United Steelworkers (Barry Controls, Inc.), 250 F. 2d 184, 187. Cf. Dis-
trict Distributors, Incorporated, 119 NLRB 845.
41 See 93 NLRB 1564.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1233
there for shipment . Hinsch then telephoned Zazzarino at Associated 's terminal
reminding him that inasmuch as Associated was a common carrier , Interstate Com-
merce Commission regulations required him to accept A-P's freight . Zazzarino
replied, according to Hinsch , that "anyone who handled [A-P's] freight would be
out of a job." Zazzarino then referred him to • Associated 's manager, . Schaeffer.
Hinsch telephoned him but Schaeffer said there was nothing he could do until he
discussed the matter with his attorney . Schaeffer promised to telephone Hinsch
within the hour.
When Hinsch did not hear from Schaeffer , he decided to go to Associated's
terminal . When he arrived there about noon , A-P's truck was backed up to the
loading platform with Mamolite and his helpers sitting in the truck. Diagonally
across the street from Associated 's terminal , Hinsch testified , he saw John Dwyer,
union business representative ,42 sitting in his car . Hinsch spoke to Zazzarino on
Associated 's loading platform and again asked him why he would not accept A-P's
freight . Zazzarino answered , according to Hinsch , that "they were requested to
cooperate and they could not handle our freight , if they did they would lose their
jobs." Hinsch testified that when he inquired of Zazzarino who it was that had
asked him to cooperate , he said, "that man sitting there [in the car] and he pointed
to Mr. Dwyer." Hinsch testified that he waited a few hours at Associated for an
answer from terminal manager Schaeffer as to whether A-P's freight would be
accepted , and while doing so, he saw several "employees" of Associated walk
across the street where Dwyer was sitting in his car and speak to him.43
Hinsch also testified that Dwyer distributed leaflets 44 to drivers of other trucking
companies who drove onto Associated 's premises and that as they backed their
trucks into Associated 's platform , Dwyer asked them not to patronize Associated
as it "was doing business with a scab outfit; that they were striking them, they
were trying to organize the people [at A-P] , that Associated was not cooperating.
Evidence of that was [A-P's] truck sitting at the platform [of Associated]."
Dwyer testified he followed an A-P truck to Associated and when he arrived
there, sometime after 9 a.m., he telephoned this information to Local 1205. After
doing this, he testified, he sat in his automobile until 4 p.m. when the A-P truck
left whereupon he departed . Dwyer denied he spoke to anyone affiliated or doing
business with Associated nor did he distribute leaflets. The only people he spoke
to, he testified , were 30 to 40 longshoremen he had known for years , and who
worked at Pier 42. These longshoremen , Dwyer testified , merely came over to his
car, during the course of the day, to chat with him.
Dwyer 's version of what transpired at Associated Transport on August 19, 1957,
is not credited . On the contrary , it is found that he not only went there with the
intention of inducing Associated 's employees not to handle A-P's freight but that he
also expressly requested the motor carriers ' employees not to accept delivery of
A-P's freight . Such an objective is made unlawful by Section 8 (b) (4) (A) of the
Act, because it is illegal for a union to bring economic pressure against the pri-
mary employer with whom the union has a dispute , by the indirect device of
inducing or encouraging employees of neutral employers to engage in a concerted
refusal to do certain work in the course of their employment in order that neutral
employers will be forced to cease business relations with primary employers, thereby
placing greater economic pressure on primary employers 45
6. Republic Carloading and Distributing Company, Inc.46
On June 28 , 1957, A-P merchandise was brought to the Republic Carloading
and Distributing Company, Inc., New York City, an Interstate Commerce Com-
mission motor carrier, for shipment to Louisiana . Thomas Salvio , business repre-
sentative of Respondent Local 1205, followed A-P's truck to Republic. Upon his
arrival there he approached George Fleischman, Republic's receiving clerk , identi-
fied himself, and requested Fleischman not to accept the freight as A-P was on
strike. Fleischman referred Salvio to Joseph Heiselmann , terminal manager of
' a Dwyer testified he was at Associated in the capacity of an agent of Local 1205.
d3 When Hinsch was asked the basis for him characterizing these men as "employees" of
Associated , he testified , "they were unloading trucks at the Associated platform."
"These leaflets were printed by the Seafarers Union. General Counsel's Exhibit No. 10
( the leaflet) on which ruling was reserved at the hearing is hereby received in evidence.
{G This finding is not changed by the fact that Local 1205 urges it can avail itself of
the hot-cargo contract entered into between its sister Local 707 and Associated . This is
discussed , infra.
10 See 110 NLRB 1908.
505395-60-vol. 12 2-7 9
1234. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Republic. Salvio then made the same request of Heiselmann who asked John F. X.
Gary, General Freight Agent of Republic, to speak to Salvio. Gary testified that
Salvio produced his identification card showing him to be a business representative
of Local 1205 of the Teamsters and said: "The A-P Manufacturing Company are
on strike. We represent their employees and I am here asking you not to take
freight from strikebreakers." (Emphasis supplied.) 47 Thereupon, Gary telephoned
a salesman for Republic whose territory was Brooklyn and asked him to ascertain
whether A-P was on strike. The salesman called back shortly to report there was
"some sort of jurisdictional dispute" but that the company official to whom he
spoke insisted A-P was not on strike. When Gary relayed this information to
Salvio, the latter maintained A-P had misstated the true facts and that the A-P
truck, which was then standing at Republic's loading platform, was operated by
"scabs and goons."
Gary then decided to telephone the office of Local 807 of the Teamsters with
whom Republic Transport Company had a collective agreement covering its plat-
form employees and truckdrivers. When Gary inquired if the union knew any-
thing about a strike at A-P, he was informed by the person to whom he spoke
at Local 807 that "they had been in telephone touch with the representatives of
1205 and as far as 807 was concerned we could tell our drivers to go through any
picket line they might put up." When Gary requested the union to so advise their
members, the Local 807 official demurred, whereupon the matter was dropped as
Gary was reluctant to take this responsibility upon himself. Gary then decided not
to accept A-P's freight, and so advised Heinselmann who, in turn, informed
Fleischman, the receiving clerk.48 Salvio's testimony did not refute the substantive
aspects of what was testified to by the above witnesses.
Based, therefore, upon the uncontradicted testimony related above, it is found
that Respondent Local 1205, by its agent Salvio, in violation of Section 8(b)(4)
(A), induced and encouraged employees of Republic Carloading and Distributing
Company, Inc., to engage in a concerted refusal to handle A-P's goods with the
object of encouraging Republic to cease doing business with A-P.
7. R.C. Motor Lines
Mamolite, one of the partners of M & L Commercial Movers, testified with
respect to an alleged incident which occurred on or about July 29, 1957, when he
left the A-P premises with a load of freight. While driving to the R.C. Motor
Lines in New York City, Mamolite testified that he was followed by Quinnonez
in his automobile. Mamolite testified he parked the truck preparatory to unload-
ing the freight upon R.C. Motor Lines receiving platform and as he was doing so,
Quinnonez came up on the platform and addressing the freight handlers, who were
engaged in their assigned duties, he requested them not to accept the freight, ex-
plaining that Mamolite was a strikebreaker and the freight originated at a plant
which was on strike. One of the freight handlers, Mamolite testified, then told him
to remove his truck from R.C. Motor Lines premises whereupon he drove away.
Quinnonez denied that he was present at the R.C. Motor Lines on or about the
date testified to by Mamolite or at any other time.
Insufficient evidence was introduced to rebut Quinnonez' denial that he was ever
present at the R.C. Motor Lines. If the General Counsel in attempting to prove
this allegation of his complaint, assumes .that the burden of proof was on the
Respondent, the Trial Examiner disagrees. The General Counsel, it would appear,
is proceeding on the theory that when his witness Mamolite testified that Quin-
nonez unlawfully induced R.C. Motor Lines' employees to refuse A-P's freight that
the burden was then upon Respondent Local 1205 to exonerate itself from the
charge made against the Union. The law, of course, is otherwise. The burden is
upon the General Counsel to prove affirmatively by a preponderance of substantial
evidence that the incident involving Quinnonez occurred at R.C. Motor Lines, as
alleged in the complaint. When Quinnonez denied that he was present at R.C.
Motor Lines, the onus was on the General Counsel to establish the falsity of his
alibi . The General Counsel failed to carry his burden in this respect, 49 as the
47 "Q. (Did] Salvio tell you the truck driver employees of A-P were on strike?
A. He didn't specify which employees, he just said the Company was."
48 The testimony of Benjamin Chioffolo, assistant dispatching clerk for Republic, who
witnessed and beard most of what is related above, corroborated Heiselmann 's and Gary's
testimony.
40 Indiana Metal Products Corporation v. N.L.R.B., 202 F. 2d 613, 616 (C.A. 7) ;
Martell Mills Corporation v. N.L.R.B., 114 F. 2d 624, 627 et seq . (C.A. 4).
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1235
evidence "must do more than create a suspicion of the existence of the fact to be
established." 50
8. Terminal Cartage Corporation; Middle-Atlantic Transport Co.
Terminal Cartage Corporation, which is located in a large freight terminal in
New York City, is a receiving and distributing agent for all motor common car-
riers that lease space in this terminal,51 with the exception of Middle-Atlantic
Transport Company which does not use Terminal Cartage facilities but has its own
receiving clerk located on the platform. Truckers bringing less than carload ship-
ments to the terminal unload the freight at Terminal Cartage Corporation's receiv-
ing platform for shipment throughout the United States. As the freight is unloaded
from the trucks, Terminals' receiving clerks mark the freight for the particular
carrier servicing the section of the country to which the freight is to be shipped.
The freight is marked by Terminals' receiving clerks in such a manner that the
men along the route of the conveying belt, called "linemen," know by the designa-
tion marked on the freight by which carrier it is to be shipped. After being so
marked, the freight is placed on a conveying belt which runs the. entire length of
the freight shed and which services each of the common carriers who occupy space
along the route of the belt. As the freight is conveyed by the belt, each carrier
has its employees stationed at the point where its facilities are located who remove
from the belt that freight marked with its particular designation. After the freight
is removed from the belt, it is loaded into the designated carriers' trucks for ship-
ment to the consignee. On carload shipments (over 5,000 pounds) the freight is
brought directly to the loading platform position in the freight terminal allocated
to the carrier which services the particular section of the country where the carload
shipment is to be sent.
Joseph Plauska, who is employed by Terminal Cartage Corporation to check
incoming freight, and who is shop steward for Respondent Local 707 of the Teams-
ters, testified that on June 28, 1957, a truck with A-P merchandise backed into
Terminal Cartage Corporation's platform and started to unload.52 Some of the
A-P freight was routed through Terminal Cartage facilities and the remainder via
Middle-Atlantic's outbound trucks. While the Middle-Atlantic freight was being
separated from the Terminal Cartage freight, Edmund Brovarski introduced him-
self to Plauska as a business representative of Respondent Local 1205 of the
Teamsters. Brovarski informed Plauska that A-P was on strike and asked him
not to accept delivery of their freight. Plauska checked with his union, Respond-
ent Local 707, and was advised A-P was on strike. He then told Terminal's plat-
form employees (who were in the process of unloading, checking, and separating
the A-P freight routed via Terminal from that to be shipped by Middle-Atlantic),
not to accept A-P's freight. He also informed James Carmiltano, the manager of
the terminal, that he had refused to ship A-P's freight, to which Carmiltano said
"all right."
Glen Jackson, Middle-Atlantic's receiving clerk (who does not belong to Local
707 or to any union) and who was in the process of stamping that part of A-P's
freight which was being unloaded from the A-P truck for shipment via Middle-
Atlantic, was requested by Brovarski not to accept delivery of A-P's freight. Jack-
son referred him to his superior, Flanagan. Shortly thereafter, Flanagan, an em-
ployee of Middle-Atlantic and shop steward of Respondent Local 707,53 ordered
Jackson to return the freight to A-P "because it was strike-bound." Flanagan
testified that when Brovarski informed him there was a strike in progress at A-P's
plants and requested him not to accept their freight, he telephoned Al Smith, vice
president of Respondent Local 707, who told him the Local had received a letter
from the Teamster's Joint Council advising it of the labor dispute at A-P. Flana-
gan testified that when he asked Smith how he should handle the A-P freight,
Smith replied, "You know what to do." It was then that Flanagan returned to
the loading platform, where Jackson, Middle-Atlantic's receiving clerk, was sta-
tioned, and told him to return the freight to A-P. Brovarski's testimony does not
differ in any substantive respect from what was testified to by the above witnesses.
w Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 477.
ei Each carrier occupying space in the terminal pays a charge, based on the weight of
the freight, to Terminal Cartage Corporation for all less than carload shipments processed
by it.
It was stipulated that Plauska is an agent of Local 707 within the meaning of the
Act. Plauska testified he was neither a supervisor nor a foreman.
531t was stipulated that Flanagan is an agent of Local 707 within the meaning of
the Act.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon these uncontradicted facts, Respondent Local 707 contends, never-
theless, that its union members, Flanagan, an employee of Middle-Atlantic and a
shop steward of Local 707, and Plauska, an employee of Terminal Cartage, were
engaging in activities protected by the Act because "the hot cargo clause placed
the handling of this freight outside the course of their employment." Respondent
Local 707 is the collective-bargaining representative of various categories of freight
handlers of Middle-Atlantic Transport Company, and Terminal Cartage Corpora-
tion. The pertinent part of Section 11(a) of the current contracts which Local
707 has with both Middle-Atlantic and Terminal provide:
An employee shall not be required to cross a picket line or deliver or receive
freight from a business establishment at which a strike is being conducted.
Respondent Local 1205 also argues that even though it is not a party to the hot-
cargo agreement, nevertheless, the activities of its agent, Brovarski, are likewise
protected, as the contracts entered into between its sister Local 707 and Middle-
Atlantic and Terminal inures also to the benefit of Local 1205.
The contention of Respondent Local 707 that its hot-cargo provision in the agree-
ment it had with both Terminal and Middle-Atlantic afforded its members the right
to refuse to handle the "struck" goods of A-P, was answered in the Genuine Parts
Company case 54 where the Board held that such provisions are "invalid" in their
"inception" and will not provide a defense to an otherwise illegal boycott under
the Act. This is particularly so where the employer involved is a common carrier
subject to the rules of the Interstate Commerce Commission. Furthermore, held
two members of the Board, the mere execution of a hot-cargo agreement will con-
stitute prima facie evidence of union inducement of secondary-boycott activity.
Moreover, the defense of Respondent Locals 707 and 1205 that it was only the
employees they induced to observe the hot-cargo clause may have been prior Board
doctrine but it is now no longer the law because it also was held in the Genuine
Parts Company case, supra, that a union by advising employees who were employed
in the trucking industry that they could refuse to handle freight from a company
involved in a labor dispute violates Section 8(b) (4) (A) irrespective of the validity
of a hot-cargo clause itself because the Act precludes enforcement of the clause by
union appeals to employees of motor common carriers.
Likewise, Respondent Local 1205 violated Section 8(b) (4) (A) of the Act by
inducing employees of Terminal and Middle-Atlantic not to handle A-P's freight
with the object of forcing these neutral common carrier employers to cease doing
business with A-P. Furthermore, the conduct of Local 1205 must be evaluated
independently of that of Local 707, as its sister union's asserted "defenses" are not
automatically available to Local 1205.55 As the hot-cargo clause in Respondent
Local 707's contracts with Terminal and Middle-Atlantic would not legalize induce-
ment by it of the employees, such clause is not available as a defense to Local
1205 which was not a party to the contract nor the bargaining representative of
any of the employees of Terminal or Middle-Atlantic.
It is also found that the proscribed conduct described above violated Section
8(b)(4)(B) because it was undertaken with the object of requiring all the motor
common carriers which are named in the complaint (including Durkee but exclud-
ing R.C. Motor Lines) to cease doing business with A-P, and to force or require
A-P to recognize or bargain with Respondent Local 1205 as the collective-bargain-
ing representative of the truckdriver employees of A-P, notwithstanding the fact
that Respondent Local 1205 has not been certified as such representative pursuant
to the provisions of Section 9 of the Act.
9. Railroads
The complaint, as amended, alleges and Respondent Local 1205 does not deny,
that its agents, Ralph Quinnonez, Sigmund J. Brovarski, Edmund Brovarski, Thomas
Salvio, Christopher Porter, and John Dwyer on various dates between June 27 and
August 22, 1957, requested employees of The Delaware, Lackawanna and Western
Railroad Company, Bush Terminal Railroad, and Long Island Railroad not to
handle A-P's freight. However, contends Respondent Local 1205, this conduct on
the part of its agents is not illegal because the Act's definition of the terms
"employer" and "employee" 56 specifically exclude from the scope of the Act, re-
53 Supra. See also American Iron and Machine Works, 115 NLRB 800 at page 801.
ss General Drivers, etc., Local 886, International Association of Machinists, etc..
Local 650, 115 NLRB 800, 801, affd. as to Local 850, Machinists, but denying enforcement
against Local 886, 247 F. 2d 71 (C.A., D.C.).
66 Section 2(2) and 2(3) of the Act.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1237
spectively, "any individual employed by an employer subject to the Railway Labor
Act.57 Therefore , argues the Respondent Union Local 1205 , railroads and their
employees are excluded from the terms "employer" and "employee" by the Act's
definitions so that any activities of Local 1205 with respect to railroads and its
employees cannot be held to be violative of the Act.
In determining whether the Union violated Section 8(b) (4) (A ) in requesting
employees of railroad companies not to handle A-P freight which was brought to
its terminals , consideration should be given to an aspect of this case that was
argued in the International Rice Milling case,58 which involved the picketing of a
railroad 's property . It was also contended in that case that the Act 's definition of
the terms "employer" and "employee " specifically exclude from the scope of the
Act, respectively, "any person subject to the Railway Labor Act" and "any indi-
vidual employed by an employer subject to the Railway Labor Act ." 59 That is,
the union , in that case , argued that railroads and their employees are excluded
from the terms "employer " and "employee " by the Act's definitions and that any
activities of the union with respect to them cannot be held to be violative of the
Act.
The Trial Examiner in the International Rice Milling case ,80 held that a railroad
subject to the Railway Labor Act is an "employer" as that term is used in Section
8(b)(4) (A ) of the Act . The Board reversed the Trial Examiner and held that
the words "any employer" as used in Section 8 (b)(4)(A), do not include railroad
companies as employers . The Court of Appeals for the Fifth Circuit reversed the
Board and stated: 61
We are of the opinion that the situation before us now was intended to be
covered by the above-mentioned Section 8 ( b) (4) of the Act . The purpose of
Section 8 (b)(4)(A) and (B) is to protect commerce from injury , impairment,
and interruption , by removing obstructions like the one we have here. .. .
All petitioners seek is a removal of the railroads and their employees from
the scope of a labor-management conflict in which they have no interest and
want no part . We think Congress provided for the removal of such obstacles
from the free flow of interstate commerce when it enacted Section 8(b)(4).
A close reading of the language used in Section 8 (b) (4) convinces us that,
by the use of the words "any employer ," Congress intended to extend the sec-
tion to any and all situations relative to the one we have before us... .
By construing the language of the statute so as to include railroad companies
within the meaning of the words "any employer ," we are giving effect to the
intent of Congress to stop secondary boycotts in the transportation industry.
The Supreme Court reversed the court of appeals but on an entirely different
ground. The question whether an employer who is subject to the Railway Labor
Act is an employer within the meaning of Section 8(b) (4) (A) was not presented
to the Supreme Court in the Board 's petition for a writ of certiorari so that this
issue was not before that Court. However, subsequent to the time the Supreme
Court handed down its decision in the International Rice Milling case, in which
it remanded the case to the Fifth Circuit Court of Appeals, and that court, in turn,
remanded the case to the Board , it was stated by the Board at 95 NLRB 1420:
In his Intermediate Report , the Trial Examiner found in part that the picket-
ing of the railroads was violative of Section 8(b)(4)(A) and (B) of the Act.
No specific exception was taken to this finding . In the circumstances, and as
no novel question of law is involved , We adopt it, and shall issue an appro-
priate order . [Emphasis supplied.]
The next time that this question arose was in the case of W. T. Smith Lumber
Company 62 where the Board held that, since a railroad was not an "employer"
within the meaning of Section 2 (2) of the Act and its personnel were not "em-
ployees" within the meaning of Section 2(3), the inducement by a union of rail-
road personnel was not violative of Section 8(b)(4)(A). The United States Court
of Appeals for the Fifth Circuit, consistent with its opinion 7 years earlier in the
International Rice Milling case, reversed the Board 's action in dismissing the com-
plaint and remanded the case to the Board for further proceedings not inconsistent
6744 Stat. 577, as amended, June 21, 1934, 45 U.S.C.A. 151, et seq.
' 84 NLRB 360, 183 F. 2d 21 (C.A. 5), 341 U.S. 665.
66 See Section 2(2) and (3) of the Act.
Q° International Rice Milling Co., 84 NLRB at pages 373 to 376.
61 183 F. 2d 21 at pages 24, 25.
2116 NLRB 1756.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the court's holding that inducement of railroad workers to engage in a work
stoppage to force a railroad to cease doing business with a primary employer did
violate Section 8(b) (4) (A).63 The Court held that the intent of Congress in en-
acting Section 8(b) (4) (A) was to prevent commerce from obstruction, and that
congressional purpose would be frustrated if railroads and their employees, "the
industry most directly and extensively concerned with commerce" could not be
protected from illegal picketing resulting from labor disputes "in which they have
no interest and want no part." Thereafter, the Board did not seek certiorari in
the Smith Lumber Co. case and it issued an order remanding the matter to the
Regional Director for a full hearing on the merits.64
In the Palm Beach Transfer case decided in December 1957,65 a majority of the
Board ordered the union not to induce railroad employees to refuse to handle
freight brought to its terminal by trucking companies, but two members of the
Board stated in a footnote that in view of the fact that this proceeding came within
the geographical jurisdiction of the Court of Appeals for the Fifth Circuit, they
acquiesced in that court's ruling against the Board in W. T. Smith Lumber Com-
pany case where the Fifth Circuit reaffirmed its holding in the International Rice
Milling case, supra.66
In Teamsters v. New York, New Haven & Hartford Railroad Co.,67 the United
States Supreme Court held that railroads are "persons" who may file charges and
are protected by Section 8(b)(4) from pressures designed to force "any employer
or other person . . . to cease doing business with any other person." In that case
the union induced employees of a transportation firm to cease delivering trailers to
the railroad's flatcars with an object of forcing this firm to cease doing business
with the railroad. When the railroad went into a State court to obtain injunctive
relief against the union's conduct, the State tribunal granted the injunction 88 on
the ground, inter alia, that the railroad would have no standing to invoke the
Board's processes, citing two Board cases.69 The Supreme Court ruled, however,
that the Board and not the State court had jurisdiction. Significant, also, is the
Supreme Court's holding that "railroads are not excluded from the Act's definition
of `person' " despite the omission of any reference to railroads in Section 2(1)
which reads:
&'W. T. Smith Lumber Company v. N.L.R.B., 240 F. 2d 129 (C.A. 5).
e4 In the original proceeding, the Trial Examiner has dismissed the complaint on a
motion by the respondent union at the beginning of the hearing and such action was
sustained by the Board.
66 119 NLRB 852.
60 An Administrative Decision of the General Counsel, Case No. F-260, Issued Janu-
ary 23, 1958, ordered a Regional Director to include charges that the unions involved in
a dispute with a maritime company violated Section 8(b) (4) (A) by inducing railroad
workers to take part in a secondary boycott. The Regional Office had dismissed that
part of the employer's charge that involved railroad employees, issuing a complaint in-
volving only the union's conduct with respect to employees of nonrailroad employers.
The Regional Office dismissed on the authority of the W. T. Smith Lumber Company
case, supra, but the General Counsel in his order to the Regional Director stated :
The General Counsel concluded that the foregoing circumstances, including the
Board's acceptance of the remand in the W. T. Smith case and the pending hearing
on the merits therein, warranted further proceedings in the instant case with respect
to the allegation that the unions violated Section 8(b) (4) (A) by their inducement
of the railroad's personnel to engage in a work stoppage. Accordingly, the General
Counsel instructed the Regional Director to amend the complaint herein to include
this allegation.
In the instant proceeding, the original complaint, dated August 22, 1957, was limited to
violations involving incidents occurring at the premises of common carriers by trucks.
However, the General Counsel's amended complaint, dated November 4, 1957, for the first
time, alleged that the Respondent violated the Act in its conduct at the premises of the
railroads named herein.
E7 350 U.S. 155.
New York , New Haven & Hartford Railroad Co. v. Jenkins, 331 Mass. 720, 122 N.E.
2d 759.
69 Schneider, 87 NLRB 99 , 89 NLRB 221 ; Sprys Electric Company, 104 NLRB 1128.
LOCALS 1205 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1239
The term "person" includes one or more individuals, labor organizations, part-
nerships, associations, corporations, legal representatives, trustees, trustees in
bankruptcy, or receivers.
The Supreme Court in Teamsters v. New York, New Haven & Hartford Rail-
road Co., stated: 70
The Act, in its definition of an "employer," expressly excludes anyone subject
to the Railway Labor Act. . . It is of course true that employer-employee
relationships of railroads such as respondent are governed by the Railway
Labor Act . . . which was passed before either the National Labor Relations
Act or the Labor Management Relations Act. Neither of the latter Acts was
intended to tread upon the ground covered by the Railway Labor Act. It is
clear that neither railroads nor their employees may carry their grievances with
one another to the N.L.R.B. for resolution. But it does not follow from this
that a railroad is precluded from seeking the aid of the Board in circumstances
unrelated to its employer-employee relations. * * * We think it clear that
Congress, in excluding "any person subject to the Railroad Labor Act" from
the statutory definition of "employer," carved out of the Labor Management
Relations Act the railroads' employer-employee relationships which were, and
are, governed by the Railway Labor Act. But we do not think that by so
doing, Congress intended to divest the N.L.R.B. of jurisdiction over controver-
sies otherwise within its competence solely because a railroad is the complain-
ing party. Furthermore, since railroads are not excluded from the Act's defi-
nition of "person," they are entitled to Board protection from the kind of
unfair labor practice proscribed by Section 8(b)(4)(A). This interpretation
permits 'the harmonious effectuation of three distinct congressional objectives:
(1) to provide orderly and peaceful procedures for protecting the rights of
employers, employees and the public in labor disputes so as to promote the
full, free flow of commerce, as expressed in §1(b) of the Labor Management
Relations Act; (2) to maintain the traditional separate treatment of employer-
employee relationships of railroads subject to the Railway Labor Act; and
(3) to minimize "diversities and conflicts likely to result from a variety of local
procedures and attitudes toward labor controversies." Garner v. Teamsters
Union, 346 U.S. 485, 490. [Emphasis supplied.]
In the opinion of the Trial Examiner, the word "employer" as that term is used
in Section 8(b) (4) (A) does not necessarily have the same meaning that it has in
Section 2(2) of the Act where it is defined. When it is considered that the
declared congressional policy of the Act, among other things, is to eliminate and
prevent obstructions to interstate commerce,71 it would appear that the purpose of
Section 2(2) in defining "employer" narrowly was to make it clear that railroads
were to continue to deal with their employees and the employees' labor organiza-
tions under the Railway Labor Act. Congress in defining "employer" so as to
exclude railroads was merely making it clear that the railroads in their labor rela-
tions with their employees would continue to be governed by the Railway Labor
Act, a separate and earlier statute and that they would not be subject to the juris-
diction of the National Labor Relations Board.
Congress in enacting the Labor Management Relations Act (61 Stat. 136) stated
in Section 1 that its dominant purpose was "to promote the full flow of Com-
merce." Section 8(b) (4) (A) was intended by the Congress to proscribe secondary
boycotts and thereby remove a major obstacle to the free flow of interstate com-
merce . It seems that to interpret this section of the Act as not applying to rail-
roads is to deny its protection to one of the most important instrumentalities of
commerce in the Nation and to evince undue preoccupation with the statutory defi-
nition , rather than the underlying purpose and intent of the Act as a whole. It
is submitted that to allow secondary boycotts where a railroad is the neutral
secondary employer but to proscribe such illegal practices, as are being recom-
mended in this decision, with respect to common carriers by truck, is a differen-
tiation not only without substance but contrary to that against which the prohibition
of illegal picketing is directed. Such an interpretation, it is believed, overempha-
sizes the form and minimizes the substance and dominant purpose of the Act which
70 350 U.S. 155 at pages 159-160.
71Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. at page 152.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is "to promote the full flow of commerce." 72 It would seem that an interpreta-
tion should be adopted "which can most fairly be said to be embedded in the
statute in the sense of being most harmonious with its scheme and the general
purpose Congress manifested." 73 An anomalous example resulting from the hold-
ing that railroads or their employees are not encompassed within the purview of
Section 8(b) (4) (A) is supplied by an incident in this case which occurred at the
Acme Fast Freight premises.74 It will be recalled that The Delaware, Lackawanna
and Western Railroad shares the loading platform with Acme and has a railroad
siding that services this freight facility, and also employs freight handlers who work
alongside the Acme employees. Nevertheless, under the present interpretation,
Local 1205 is being enjoined from inducing Acme's freight employees not to handle
A-P's freight, but the same union cannot be so enjoined from inducing the rail-
roads' freight handling employees who work on the same loading platform with
Acme's employees.
However, the Trial Examiner is aware that he is bound by Board precedent until
such time as the Supreme Court resolves a question on which there is a diversity
of opinion between the Board and the courts, and that only by recognition of this
fact will a uniform and orderly administration of the Act be achieved. Although
Member Jenkins in the Palm Beach Transfer case, supra, in his dissenting opinion,
held the decision of the Supreme Court of the United States in Teamsters v. New
York, New Haven & Hartford Railroad, supra, to be diapositive of the railroad
issue, the majority of the Board do not share this view.75 Therefore, upon the
controlling basis of stari decisis, it is found that Respondent Local 1205, by appeals
to the employees of Long Island Railroad, Delaware, Lackawanna and Western
Railroad, and Bush Terminal Railroad to refuse to perform services in the course
of their employment did not violate Section 8(b)(4)(A) of the Act because railroad
workers are not employees within the meaning of the Act and thus are not subject
to inducement or encouragement within the statutory sense.
H. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Unions Local 1205 and Local 707, described
above, occurring in connection with the operations of Atlantic-Pacific Manufac-
turing Corporation and the motor freight carriers named herein, have a close, inti-
mate and substantial relationship to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
III. THE REMEDY
Having found that the said Respondent Unions violated Section 8(b) (4) (A) and
(B) of the Act, as set forth above, it shall be recommended that they cease and
desist from such conduct. It shall also be recommended that they take certain
affirmative action designed to effectuate the policies of the Act. Because of the
extensive scope and range of the Respondents' unlawful activities, it shall be recom-
mended, in order to effectuate the policies of the Act, that there issue an order
broad enough to enjoin the recurrence, throughout the Metropolitan New York
City area, of the conduct found unlawful in this case.
It will also be recommended that copies of the notice attached hereto marked
"Appendix," be sent to the headquarters of unions representing the employees of
the primary and secondary employers in order to obviate those situations where
the Respondents have sought and may seek to enlist the aid of its International
affiliate, sister locals and other labor organizations in the illegal conduct.
The record in this case shows that the chain of circumstances which gave rise
to this litigation had its genesis in the Seafarers initiating action to represent A-P's
72 See Douds v. New York Local Union 10, International Brotherhood of Production,
Maintenance and Operating Employees , 120 F. 2d 221, 223 (E.D.N.Y.), where the court
stated :
Picketing of secondary premises, . . . [is] likely to interfere with the free flow of
commerce and adversely affect the public welfare within the meaning of Section 2,
subdivisions (6) and (7) of the Act. See N.L.R.B. v. Denver Building h Const.
Trades Council, 341 U.S. 675, 685, et seq., . . .
78 N.L.R.B. v. Lion Oil Company, 352 U.S. 282, 297.
74 Supra.
as Cf. Peter D. Furness Electric Co., 117 NLRB 437, reversing Sprys Electric Company,
104 NLRB 1128.
LOCALS 120.5 & 707 INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1241
production employees and that from its inception, Local 1205 of the' Teamsters
and the Seafarers have been coordinating their activities in an effort to organize
A-P's truckdrivers and production employees.76 It is evident that the Teamsters
were "running interference" for the Seafarers in that Local 1205's strategy was not
only to organize the five truckdrivers but also to exert economic pressure upon
A-P (by its strike and picketing , as well as, its unlawful activities at the premises
of neutral employers) thereby forcing A-P into coercing its approximately 150
production employees into joining the Seafarers.
The charge and amended charge originally named the Seafarers, but when the
complaint was issued by the General Counsel, any allegation with respect to it
was omitted although Seafarers not only initiated and directed the common strategy
but also supplied money and its own professional personnel to carry out the com-
bined activities of both itself and the Teamsters. There is no explanation for this
striking omission when it is considered that the Seafarers assigned its business
agent, Dwyer, to assist Local 1205 and that Quinnonez, Local 1205's president and
business representative , resigned his union offices in August 1957 and was then
hired by the Seafarers.
The fact that the General Counsel did not choose to plead in his complaint can-
not blind the Trial Examiner to being aware that the testimony shows these cir-
cumstances to have been present. Moreover, the nonjoinder of the Seafarers makes
it impossible to effectuate the mandate in Section 10(c) of the Act which requires
that the remedy should undo the effects of these illegal activities and return the
parties to the status quo ante the unfair labor practices 77 The power to fashion
a remedy, however, is limited by the issues framed by the complaint so that under
the present state of the pleadings in this proceeding, plenary and coordinated effec-
tuation of the statutory policies and purposes of the Act cannot be achieved be-
cause of the deficiency of the complaint in this respect. Therefore, an effective
remedy can neither be fashioned nor a determinative order issued which will eradi-
cate all the resultant effects of the conduct revealed by this record.78
CONCLUSIONS OF LAW
1. Teamsters Local Unions Nos. 1205 and 707, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organi-
zations within the meaning of Section 2(5) of the Act.
2. By engaging in, and by inducing and encouraging employees of Acme Fast
Freight, Inc., Alan Transport, Associated Transport, Inc., Durkee Co., Inc., Wilson
Freight Forwarding Co., Republic Carloading and Distributing Company, Inc.,
Middle Atlantic Transport Co., and Terminal Cartage Corporation, to engage in
a strike or concerted refusal in the course of their employment to handle freight
brought to loading docks and premises of their respective employers from or by
Atlantic-Pacific Manufacturing Corporation, Brooklyn, New York, with the object
of forcing or requiring such employers to cease doing business with Atlantic-
Pacific Manufacturing Corporation, in order that the latter will recognize and
bargain with Local 1205, the Respondent Unions have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(b)(4) (A) and (B) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondents, with respect to the railroads named herein, have not en-
gaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) and
(B) of the Act.
[Recommendations 79 omitted from publication.]
7° Whether the picketing at A-P's plant was for the primary purpose of seeking A-P's
acceptance of a minority union for its production employees as exclusive bargaining
representative, thereby compelling A-P in effect, to foist a union upon its production
employees, contrary to their right to freely choose their bargaining agent, is not in issue
because Seafarers has not been joined as a party respondent.
'''r Phelps-Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194.
78 See Eichleay Corporation v. N.L.R.B., 206 F. 2d 799, 804-806 (C.A. 3).
19 Under the holding in the Genuine Parts Company case, supra, inducement of common
carrier employers, as well as employees, is proscribed. See Metropolitan New York and
New Jersey Casket Manufacturers Association , 114 NLRB 1329.