Local 294, Int'l Brotherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Apr 26, 1961

131 N.L.R.B. 242 (N.L.R.B. 1961)

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We likewise find no merit in the Employer's contention that the
dispatchers are management personnel. Although the dispatchers
attend monthly meetings where they are briefed as to company policy
covering their duties, any suggestions made by them as to company
operations must be weighed and approved by management before be-
ing adopted. Furthermore, other employees may make suggestions
which are accorded the same treatment. We therefore find that the
dispatchers do not participate in the formulation of company policy
nor exercise any other managerial function.5 The Employer's motion
to dismiss on the ground that the proposed unit is comprised of super-
visors or managerial personnel is therefore hereby denied.
We turn now to the question of whether dispatchers should be in-
cluded in the same unit with the drivers currently represented by the
Petitioner, or should constitute a separate appropriate unit. Upon
the basis of the entire record and, particularly, in view of the common
employment interests and the degree of working relationship between
the drivers and the dispatchers, we find that they may, if they so
desire, be represented in the same unit with the Employer's drivers.
However, as the dispatchers have not previously been included in the
unit of drivers, we shall make no unit determination with respect to
them pending the outcome of the election herein directed among
them. If they select the Petitioner as their bargaining representative,
they will be taken to have indicated their desire to be included in the
existing unit of drivers currently represented by the Petitioner, and
the Regional Director conducting the election is instructed to issue a
certification of results to that effect.'
Accordingly, we shall direct an election in the following voting
group : All dispatchers and relief dispatchers at the Employer's Den-
ver, Colorado, taxicab operation, excluding extra dispatchers, all
other employees, drivers, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
8 See The Connecticut Light and Power Company , 121 NLRB 768.
6 Cf. New England Tran8portataon Company, 90 NLRB 539
Local 294, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and Van Transport
Lines, Inc. and Frank Piazza and George Piazza d/b/a Staats
Express. Cases Nos. 92-CC-551 and P2-CE-1. April 06, 1961
DECISION AND ORDER
On July 20, 1960, Trial Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that
131 NLRB No. 42.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 243
the Respondent had engaged in certain unfair labor practices and had
not engaged in others, and recommending that it cease and desist
from the unfair labor practices found and take certain affirmative
actions, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding, and hereby adopts the findings, conclusions, and re-
commendations of the Trial Examiner with the modifications noted
below.
1. The General Counsel excepted to the failure of the Trial Exam-
iner to find that Superintendent Arthur Henningson of Grand Union
Corporation is an individual within the meaning of Section 8 (b) (4)
(i). For the reasons stated in our decision in Carolina Lumber Com-
pany 1 we reject the General Counsel's extremely broad interpretation
of that term. We held in Carolina that Section 8(b) (4) (i) was di-
rected only at the inducement of lower level supervisors whose in-
terests were more closely allied to those of rank-and-file employees
than to management, and that the placement of any employed person
within the coverage of either Section 8(b) (4) (i) or (ii) would de-
pend upon the assessment, on a case-by-case basis, of the relevant fac-
tors set out in that decision.
Application of that standard is not possible here as the record does
not permit accurate appraisal of the status of Superintendent Hen-
ningson. His job title and the authority implied by his questions of
union agents suggest that he is sufficiently identified with manage-
ment to remove him from the proscription of Section 8(b) (4) (i). In
these circumstances, and as we, in agreement with the Trial Exam-
iner, have found other clear violations of Section 8 (b) (4) (i) at the
premises of Grand Union, we 2 deem it unnecessary to pass upon the
incident involving Arthur Henningson.3
2. In the absence of specific exceptions thereto, the Board adopts,
pro forma, the Trial Examiner's finding that the Respondent has also
violated Section 8(e) of the Act. The Respondent's exceptions are
1130 NLRB 1438.
2 The Trial Examiner based his finding of violation of Section 8(b) (4) (1) in part on an
incident at International Harvester . The Board finds it unnecessary to rely on this
incident. '
3 Member Rodgers agrees that the record does not permit an accurate appraisal of the
status of Superintendent Arthur Henningson . He further agrees that it is unnecessary
to pass upon the incident involving Henningson because the Board is finding "other
clear violations of Section 8 (b) (4) (1 ) at the premises of Grand Union" Consequently,
Member Rodgers regards as surplusage any reference to the Carolina Lumber case in this
Decision. .
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
directed solely to the provisions of the Trial Examiner's recommended
remedial order.
The Trial Examiner recommended that the Respondent be enjoined
from entering into a hot-cargo agreement with Staats or any other
employer. The Respondent contends that since only the one contract
with Staats was litigated, under Comm u ications Workers' no more
could be enjoined. The Trial Examiner, in justifying his recom-
mendation, pointed to the fact that the contract here involved was one
made with an employer association, and that although no evidence
was introduced as to when or whether any other employers had signed
it, Respondent's counsel contended in oral argument before him that
all but Staats had signed. The very text of the contract, which is in
evidence, indicates that the intent was to bind all employers in a sub-
stantial area. We therefore agree with the Trial Examiner that there
is sufficient basis in the record to warrant enjoining the Respondent
from entering into such a contract • with any other employer.
The Respondent urges also that the Trial Examiner's recommenda-
tion that its rescind the contract is beyond his power. While in fact
the Trial Examiner's recommended order does require the rescission
of the contract, we note that he also stated, at footnote 38 of the Inter-
mediate Report, that nothing therein was intended to prevent the
Respondent and Staats from reexecuting the contract. We therefore
construe the Trial Examiner's order to be, in essence, only for the re-
moval of the offending clause,' and have modified the order and notice
to make this clear.
ORDER
Upon the entire record in these cases and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Local 294, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, its agents, officers, successors , and assigns,
shall :
1. Cease and desist from :
(a) Inducing or encouraging any individual employed by any per-
son engaged in commerce or in an industry affecting commerce, other
than Van Transport Lines, Inc., to engage in a strike or a refusal in
the course of his 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 to
force or require such other person to cease doing business with Van
Transport Lines, Inc.
A Communications Worke,s of America et al (Ohio Consolidated Tele Co ) v. N.L R B ,
362 U S 479.
s The Trial Examiner may perhaps have been concerned to avoid the impact of the
Board 's contract-bar doctrines . See Keystone Coat et al , 121 NLRB 880 , 884; Food
Maven, Inc., 126 NLRB 666.
LOCAL 294 , INT'L BROTHERHOOD OF TEAMSTERS, ETC. 245
(b) Entering into any contract or agreement, express or implied,
with Staats Express or any other employer, whereby such employer
agrees not to handle the goods or freight of, or to cease doing business
with, any other employer or person.
(c) Maintaining in effect, implementing, or renewing article IX
of the contract signed by Staats Express on February 9, 1960, entitled
"Protection of Rights.",- ,
2. Take the following affirmative action- which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places at its offices, places of business, and
meeting places in Albany, New York, copies of the notices attached
hereto marked Appendixes A and B, respectively.6 Copies of said
notices, to be furnished by the Regional Director for the Second Re-
gion, shall, after being duly signed by Respondent's authorized rep-
resentative, be posted by Respondent immediately upon receipt
thereof and maintained by it for a period of 60 consecutive days there-
after in' conspicuous places, including all places where notices to
members are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that `said notices are not altered, defaced,
or covered by any other material.,
(b) Mail to the Regional Director for the Second Region signed
copies 'of the said notices for posting of Appendix A at the premises
of Van Transport Lines, Inc., and, the companies' willing, at the
premises of all other persons or establishments engaged in commerce
or in an industry affecting commerce, with which Van Transport
Lines,Inc., does,business or did business prior to and during the strike
which began in December 1959, and of Appendix B at the premises of
Van Transport Lines,.Inc., and Staats Express, at places where no-
tices to their employees are customarily posted. -
(c) Notify the Regional Director for the Second Region, in
writing, within 10 days from the date of this Order, ,What steps it has
taken to comply herewith.
CFIAIRIIAN MCCULLOCII and MEMBEII BROWN took no part in the
consideration of the 'abo\e Decision and Order.
6In 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."
APPENDIX A
NOTICE
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959, we hereby notify you that :
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT induce or encourage any individual employed by a
person engaged in commerce or in an industry affecting com-
merce, other than Van Transport Lines , Inc., to refuse, in the
course of his employment , to use or handle goods or freight
carried by Van Transport Lines , Inc., or to load or unload trucks
of Van Transport Lines, Inc., or otherwise refuse to perform
services, with an object of forcing or requiring such other person
to cease doing business with Van Transport Lines, Inc.
LOCAL 294 , 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
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959, we hereby notify you that :
WE WILL NOT enter into any contract or agreement , express or
implied, with Staats Express or any other employer, whereby
such employer agrees not to handle the goods or freight of, or to
cease doing business with , any other employer or person.
WE WILL NOT give effect or seek to give effect to Article IX of
the contract signed by Staats Express on February 9, 1960,
termed "Protection of Rights."
LOCAL 294, 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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The proceedings above, which were consolidated for purpose of the hearing only,
were heard before me on complaint of the General Counsel and answer of Re-
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 247
spondent in each separate case. The issues were whether Respondent violated two
provisions of the Act, which were included in it under the Labor-Management
Reporting and Disclosure Act of 1959 ( Public Law 86-257). These are Section
8(b)(4)(i )(B), the violation of which is alleged in Case No. 2-CC-551, and Sec-
tion 8(e), whose violation is alleged in Case No. 2-CE-1.1 At the conclusion of
the testimony , the General Counsel and Respondent presented oral argument. This
was supplemented by a memorandum from the General Counsel relating to the
legislative history of a certain portion of the new secondary boycott provision of the
Act, as specially requested of the parties by the Trial Examiner.
Upon the entire record and my observation of the witnesses , I hereby make the
following:
1. THE BUSINESS OF THE CHARGING EMPLOYER
Van Transport Lines, Inc., herein referred to as Van, which filed the charges in
both proceedings , is a New York corporation , with its place of business in Albany,
New York . It is a common carrier by motor vehicle , which interlines shipments
with other carriers engaged in interstate commerce . Van derives an annual revenue
of over $50 ,000 for services to enterprises which they themselves ship merchandise
out of the State in quantities exceeding $50,000 a year . The Board's jurisdiction over
both proceedings is undisputed.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within the meaning of the Act
III. THE UNFAIR LABOR PRACTICES
A. Ccasiee No. 2-CC-551: The violation of Section 8(b) (4) (i) (B)
1. The strike against Van and the Union's tour of Van 's customers
In December 1959 , the Union struck as a result of the refusal of Van to honor
an arbitration award directing the reinstatement of Frank Dodge , a discharged
truckdriver and union steward . The other truckdrivers of Van at first did not join
because of doubts over whether it was a "legal," or authorized, strike . In February
1960, they were assured by Nick Robilotto , president of Respondent , that it was
"legal," and he also told them that an additional reason for it was Van's delinquency
in welfare payments to certain employees . Four of Van 's other truckdrivers there-
upon joined the strike . These were Francis Bacon , Arthur Bacon , Alfred Broomhead,
and Walter Teal. Under instructions from Edward W. Smith, business agent of
Respondent , they visited and spoke to various customers of Van. There is no dis-
pute that their mission was to enlist the aid of these establishments.
According to the testimony of Francis Bacon , who seemed to have participated
in more visits than the rest , Smith instructed the men to see "the boss" of each
concern and to ask him "to cooperate ." The record indicates that in actual execution
the visits had a broader scope . The men visited "the boss" of some of the estab-
lishments, such as E. K . Van Alstyne, president of M & R Trucking Company, and
George Piazza, a partner and coowner of Staats Express (Business Agent Smith
being a participant in the latter visit ). But they also solicited the aid of persons of
lesser rank . These included minor supervisors in charge of the shipping and routing
operations of their respective employers , a category of worker whom Business Agent
Smith testified he meant to include in the terms "boss" in his instructions to the men?
Also approached and directly solicited were rank-and-file employees. These were
Bernard Wescott and Thomas Bayly, who handle freight deliveries for the Grand
Union Company , and are stewards of the Union , and Arthur Monington , shipper for
Gary Warehouse Corporation .3 Solicitation of rank -and-file employees was seem-
ingly not out of line with Business Agent Smith 's instructions , as his emissaries
interpreted them , for Francis Bacon testified Smith told the men to "contact the
owner or the boss ," and if they could not do so, "to talk to the shippers or receivers
'An allegation In the complaint In Case No 2-CC-551 that Respondent also violated
Section 8 ( b) (4) (ii ) ( B) was withdrawn by the General Counsel at the start of the hearing
2 The minor supervisors thus spoken to included James Lewis of R.T.A Distributors,
Inc, who was in charge of its shipping and routing and was also a union steward ;
John Hanssen, warehouse foreman for Caterpillar Tractor Company ; three persons in
charge of shipping at retail stores of B. F Goodrich & Company ; one Dougherty, a
shipper for Montgomery Ward & Co., and one "Al ," a shipper for Ro-La-Lume Corporation
8 He answered yes, on direct , to whether he was an "employee" of Gary . This was not
challenged, nor was any contention raised that he was other than a rank-and -file employee
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and they would convey the message to the owner." There is nothing in the recoi d
to indicate that the "message" to the three rank-and-file employees was so qualified.
Indeed, the contrary appears from their credited testimony concerning the "message"
to them, as later described.
What was the "message"? Business Agent Smith testified that his minions were
"to ask for cooperation, period." The record would indicate that the more appro-
priate punctuation mark would be a comma. Thus Bacon testified that Smith said
that if the persons approached did not "know how they could cooperate, to explain
to them they could get their shipments routed some other way" than through Van.
Bacon was not alone in indicating that the "cooperation" to be requested meant at
least not using Van for the purpose of future routing James Lewis, shipping
supervisor at R T.A. Distributors (supra, footnote 2) testified that in the visit to
his place of work, Francis Bacon and Broomhead told him Van was on strike and
requested that he "cooperate " He asked how to do so, and Bacon replied, "if
possible use some other carrier." Lewis then called Representative Spazioso of the
Union, who told' him not to "become involved" by refusing any incoming freight
from Van, "but if possible to use some other carrier going to the Western part of
the State. After this, as Lewis further testified, he stopped routing shipments
through Van. Foreman Hanssen of Caterpillar Tractor (supra, footnote'2) testified
that Bacon asked him "if there was any way that we could ship the shipments by
some other truck than by Van's."
The cooperation requested was not in all instances limited to discontinuing freight
routings through Van-although that in itself would have been sufficient to bring the
action here under review within the prohibitory scope of the statute. In some in-
stances it was clear from the context that the specific cooperation requested meant
refusal to load or unload Van's trucks, for the request was made during the presence
at the establishment of a Van truck for the purpose of a delivery or a pickup. It is
fair to note that in nearly all instances this occurred when the person requested to
cooperate was either the owner or a top executive who, as we observe in more detail
later, are-not "individual[s] employed by" their companies, as that expression is
used in the language of inducement in 8(b)(4)(i), and who therefore could, under
that provision, be asked for that kind of "cooperation" with impunity, if threats or
other coercive measures are avoided But the circumstances in which the requests
to "cooperate" were made of them show what was contemplated by the term as
generally used. E K. Van Alstyne, president of M & R Trucking Company, first
received a call from Union President Robilotto informing him of the strike and
asking him to "cooperate." He was then. visited by two of the union emissaries,
who told him that his was the only concern "accepting freight from Van's and would
he please cooperate." At first, he was undecided. They then told him that Van was
welching on welfare payments Resenting the advantage this gave Van over its
competitors, Van Alstyne "cooperated" in the manner that that term fairly conveyed
to him. he informed Van he would not accept its freight. At Staats Express, in an
incident to be detailed during our later discussion of the alleged violation of 8(e),
on arrival of a truck owned by Van for unloading, and while two men were already
beginning to work on it, Business Agent Smith accosted George Piazza, a partner
of the firm and, according to Smith's own"wn testimony, told him that Van was on
strike and that Piazza should "cooperate." 4 Piazza did- he informed Van that under
his contract with Respondent (a subject to engage our attention in the discussion
of the 8(e) case) he could not receive Van's freight Even earlier,and before the
enlistment in the strike of the truckdrivers of Van other than Dodge, Business Agent
Smith, in response to an inquiry made of him over the telephone by Foris Martin,
agent for Styles Express, concerning whether the strike at Van's was ""legal." told
Martin it was and that "if I were you I would not go in there," whereupon Martin
discontinued making deliveries at Van's 5
The above is not to say that the Union's representative invariably interpreted "co-
operation" to include refusal to handle Van's freight. Thus, in the visit to Caterpillar
Tractor, Warehouse Foreman Hanssen responded to the request, to "cooperate" by
offering to refuse to load Van's trucks, but he was told by them merely to route ship-
4 Actually , as Piazza credibly testified , be was told outright not to accept the freight,
but the thought conveyed was the same whatever the language used
a Martin is an independent contractor engaged in making deliveries for Styles Express
as the tatter's "agent " As I later indicate , contrary to the General Counsel's position.
I would not deem Martin to be an "individual employed by" his principal within the
meaning of 8(b) (4) (1) However , the incident in question bears upon the kind of aid
contemplated by the Union ' s representatives in their requests for "cooperation " through-
out the tours made
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 249
ments by another carrier.- Yet these same visitors made outright requests of certain
rank-and-file employees not to handle Van's freight Thus, at a time when Moning-
ton of Gary Warehouse (supra, footnote 3) was loading a Van truck, the visitors,
according to his unimpeached testimony, told him to "let it go," but "in the future
remember we are on strike." Bayly and Wescott, receiving clerks at Grand Union,
were told not to accept the freight of a Van truck which was then at their employer's
dock with an unloaded cargo. Wescott testified that the visitors, Dodge and F.
Bacon, after receiving an affirmative answer as to whether he was "a steward in our
union," asked him to "refuse Van's freight," and that he then called over Bayly, the
chief steward. According to the testimony of Bayly and Wescott, the two visitors,
after first indicating that Van was on strike and they "would appreciate all the help
we could give them," repeated the request previously made to Wescott alone to
refuse Van's freight. Dodge testified the request was only for "what help or co-
operation they could give us." What else that request could connote in the context of
a Van truck waiting to be unloaded. than a refusal to accept the load was not ex-
plained. Dodge, when asked at the hearing just what help or cooperation he had in
mind, admitted that "the ultimate would be not to unload Van's trucks." He could
not say what proximate or intermediate "cooperation" could have preceded this
ultimate. To resume the sequence of the narrative: Bayly after speaking to Dodge
and Bacon, reported the situation to Arthur N. Henningson, superintendent at Grand
Union, who instructed Bayly to tell the visitors "we can't refuse any load." That
same day, Business Agent Smith called Henningson, told him Van was on strike, that
there was a Van truck in his Company's yard which was manned by strikebreakers,
and that the Union requested the Company's "cooperation." Henningson inquired
"what do you mean by cooperation? Do you want me to refuse the load?" Smith
replied, "I can't ask you that." Pressed by Henningson as to what he meant, Smith
responded, "Well, there are many ways in which you can cooperate." Smith, on the
stand, likewise did not elaborate upon what else his request for "cooperation" could
have meant in these circumstances than was entailed in Henningson's specific ques-
tion and his men's outright request of the two receiving clerks. In telling Henning-
son "I can't ask you that," Smith was manifestly shying away from expressly articu-
lating the plain implication inhering in his request for "cooperation," which he
assumed, with good reason, that his interrogator understood, fully without any
diagrams from him .6
2. The legal consequences
a. The problem presented.by the new language in the secondary boycott provision
of the Act
We need hardly labor the point that the solicitations made of the persons spoken
to at the various establishments doing business with Van were calculated to cause
them to refuse to make any routing through Van and also to refuse to load or unload
any trucks of Van. Such a request, when made to outright rank-and-file employees,
like Wescott and Bayly of Grand Union, and Monington of Gary Warehouse, presents
no problem . It was inducement and encouragement of "employees " of neutral em-
ployers to engage in a secondary boycott within the ban of Section 8(b)(4)(A) of
the Act as it read prior to the 1959 amendments, and it violated the proscription
against inducement of "any individual employed by" a,neutral employer as contained
in present 8(b) (4) (i) (B).
This, of course, would be sufficient to warrant a finding of violation and issuance of
a "cease and desist" recommendation. It would not, however, spare us the problem
of determining whether and to what extent the solicitations of persons higher in rank
than ordinary employees violated Section 8(b)(4)(i)(B). Yet unless that is done
now, Respondent would hardly be in a position to know what conduct is encom-
passed within a cease-and-desist requirement couched in the language of that section 7
b. The reach of the term "any individual employed by any person" as used in Section
8(b) (4) (i)
The legislative history refers often to the "loopholes" in former 8(b)(4)(A), the
old secondary boycott provision, as administratively and judicially interpreted, which
6 We discuss later whether the appeal to Superintendent Henningson was an Induce-
ment of "an individual employed" within the. meaning of Section 8(b) (4) (1). The con-
versation with him is here mentioned, as were those-with the other persons above the
rank of minor supervisor, for their bearing on what the term, "cooperate" 'generally
connoted in the appeals here involved.
- Cf. J. I Case Company v AT L R B , 321 U S 332, 341
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were sought to be closed up by the amendments embodied in present 8(b) (4) (i) and
(ii) (B). This warrants comparative reading of the pertinent portions of the old and
the new (including (ii), which is not directly involved, for its bearing on (i), which
is). The pertinent portions, with the repealed matter in brackets and the new denoted
by underscoring, read as follows:
8(b) It shall be an unfair labor practice for a labor organization or its agents-
(4) (i) to engage in, or to induce or encourage [the employees of any em-
ployer] any individual employed by any person engaged in commerce or in an
industry affecting commerce to engage in a strike or a [concerted] refusal in the
course of [their] his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or commodities or to
perform any services [,]; or (ii) to threaten coerce, or restrain any person en-
gaged in commerce or in an industry affecting commerce, where in either case an
object thereof is:
* * * * * * *
(B) forcing or requiring any person to cease using, selling , handling, trans-
porting, or otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with any other person, . . .
That the new law bars inducement of a broader category of employed person than
before is at once apparent from the substitution of "any individual employed by any
person" in 8(b )(4)(i) for "the employees of any employer" as used in old 8(b)(4).
On the question of how much broader the opposing positions are a study in extremes-
the Respondent disputing that the change from "employees" in old 8(b)(4) to "any
individual" in 8(b)(4)(i) was intended to encompass any level in the management
hierarchy, even a minor supervisor, and the representative of the General Counsel
urging that it was intended to reach all the way up the management ladder short of the
owner, to even the president, if the owner is a corporation.
As appears from the pertinent legislative history to be later documented, Respond-
ent's position falls short of the legislative intent, while that of the representative of
the General Counsel in this case fiercely outruns it. Treating the latter first, if the
new language in i(i) were intended to make it illegal to resort to even peaceful
persuasion of an officer of a corporation to boycott another employer, no direct
persuasion of an employer for that purpose, however benignly made, would ever be
legally possible under (i), except to a mortal employer, as distinguished from
corporate one. Such a complete insulation of the corporate employer from any
kind of inducement under (i) would render superfluous, with respect to it, the specific
outlawing of the threatening or coercive kind forbidden by (ii). There is nothing
to show that Congress intended that the legality of peaceful inducements of em-
ployers under (i) and the scope of the shelter from threatening ones given them
under (ii) should turn on whether the employer involved derives his status as a
person from a legal fiction or descent from Adam. This extreme position has
recently been disclaimed by the General Counsel, if indeed he even entertained it, in
a brief filed by him in a 10(1) proceeding in a district court,8 to which we shall
refer more fully in a later context.
Coming to the question of whether the term "any individual" as used in 9(b) (4) (i)
is intended to encompass at least some level in the supervisory hierarchy, it is clear
that after an earlier period in the legislative history of that change, when it was not
so intended, there was a later period when it was. When the change which is now
law was first sponsored as Section 503(a) of S. 748, the "administration bill," 9 its
proponents urged it as intended to plug only the loophole in 8(b)(4) which, under
the definition of "employees" as used therein, had permitted inducement of rank-and-
file workers on farms , on railroads, and in Government. There was no indication
then that the change in (i) was intended to forbid peaceful inducement of super-
visors. The latter were included in (ii ), which was intended to close the loophole
8Alpert v Excavating and Building Materials Union, etc (Consalvo Trucking Inc.),
184 F. Supp. 558 (D.C. Mass.).
9I Legislative History of the Labor-Management Reporting and Disclosure Act of 1959
(GPO. 1959) (hereafter cited as "LH") 142. The bill was introduced on January 28,
1959 (I LH 84) as the rival to S. 505, the first version of the "Kennedy-Ervin" bill, intro-
duced January 20, 1959 ( I LH 29).
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 251
which had permitted threatening overtures to employers and "supervisory and
management personnel." 10 Indeed, this last was described by Senator Goldwater in
in his exposition of the proposed change as ".the biggest loophole in the present law."
(H LH 1079). When the same proposed change was incorporated in the Landrum-
Griffin bill (H.R. 8400), 11 Representative Griffin, at the time the bill was introduced
in the House on July 27, 1959, submitted an analysis, in which, for the first time,
"supervisors" were included with "farm laborers" and "railway labor" as among the
class of employed persons the inducement of whom was to be outlawed under
8(b) (4) (i).12 After the House on August 14, 1959, adopted and passed the
Landrum-Griffin bill and sent it to conference,13 Senator Kennedy and his confer-
ence associate, Representative Thompson, submitted a joint analysis of the secondary
boycott provisions of the House bill, sponsoring the changes in 8(b)(4)(i) as out-
lawing inducement of farm, railway, and public employees, and also supervisors.
In respect to the latter, they noted: 14
In some industries supervisors belong to the union of the rank-and-file work-
ers or as exmembers are sympathetic to it. Occasionally a union has induced
the supervisors of a secondary employer to refuse to handle the goods of some
primary employer with whom the union had a dispute. This conduct causes a
true secondary boycott but it does not violate section 8(b)'(4) (A) because
section 8(b)'(4)-(A) forbids only the inducement of "employees," and super-
visors are not "employees" within the statutory definition.
The Senate bill was originally written on the theory that the legislation should
not deal with labor-management relations. Consequently, 'it does not cover
this point.
The House bill would extend the prohibition to inducement of supervisors.
The present omission is an illogical loophole which should be closed if any
legislation dealing with secondary boycotts is enacted. The substance of the
House bill is therefore acceptable upon this issue. [Emphasis supplied.]
When the change was incorporated in the bill as finally adopted by the Conference
Committee, Senator Morse, in a special report in which he was critical of some of
the concessions made in conference by his fellow conferees, hailed the change made
by 8(b) (4) (i) as closing up the loophole which had permitted inducement of super-
visors. He mentioned, in the same vein as had Senator Kennedy and Representative
Thompson before, that: 15
There are many instances also where a secondary boycott is conducted by a
union agent going to a supervisor of employees, who often is a union member,
and inducing him to shut off deliveries. Since the supervisor is subject to
union discipline, such inducement would be clearly as effective as though induce-
ment were applied to employees, themselves.
Finally, the Senate Committee in a print issued September 10, 1959, included a
section-by-section analysis indicating that among the things newly banned by the
revision of 8(b)(4), is: "(2) Inducement of . . . a supervisor employed by a sec-
ondary employer." 16
It should be clear from the above that inducement of supervisors was intended to
be barred by the change in 8(b) (4) (i) So I find myself unable to concur in the
view of one of my esteemed colleagues that 8(b)^(4) (i) does not ban inducement of
supervisors except where the action sought to be evoked is "inimical to the secondary
10 See minority report filed by Senators Goldwater and Dirksen, cosponsors of the ad-
ministration bill, on April 14, 1959, in opposition to the majority report, when the revised
version of the Kennedy-Ervin bill (S 1555) was reported. out by the Committee on Labor
and Public Welfare (I LH 476 ), and Senator Goldwater's statement during the debate
on S. 1555, wherein he cited only the permitted inducement of "railroad employees, agri-
cultural workers, and municipal employees" as constituting the "loophole" sought to be
plugged by 8(b) (4) (1), and mentioned ( ii) as being intended "to reach coercive activity
directed not only to the employer himself but to any person acting as his agent, such as
supervisory and management personnel " II LH 1079 [Emphasis supplied.]
31 As See 705 (a) thereof I LH 680
'- II LH 1523.
18 II LH 1691-1692 ; the Secondary Boycott provision as passed is Sec 705(a) thereof,
at p 1700.
14 H LH 1706-1707.
35 II LH 1425-1426.
26 1 LH 965.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer's interest," 17 for I find neither in the statute nor the authoritative declara-
tions evidence of an intention to make us, the Board, or the courts the arbiters, which
such an interpretation would do, of whether engaging in a requested boycott would
be inimical or beneficial to the secondary employer's interest. However, I find my-
self also unable to concur with two other of my esteemed colleagues who, while con-
cluding that the ban in 8(b)i(4)(i) does include supervisors, deem the prohibition to
reach as high up the management ladder as the rung just below that of "entrepreneur,
partnership, or officer." 18 This places the dividing line at a higher point that does
even the General Counsel, who, in the brief he filed in the 10(1) proceeding previ-
ously mentioned (supra, footnote 8), proposed a line immediately below the "policy
making level of management," which would render it permissible under 8(b)(4)(i)
to make an "appeal . . . designed only to bring about a policy decision which will
be effectuated by management through subordinates. On the other hand, Judge
Wyzanski, who decided the 10(1) proceeding in question, would draw the line no
higher than immediately above the level,of minor supervisor, stating:
8(b))(4)(i) is concerned with appeals addressed to those who perform services
manually or clerically, or who manually use goods, or who have minor super-
visory functions. [Emphasis supplied.]
In the case before Judge Wyzanski, the individual involved in the inducement
which he held not to be violation of 8(b) (4) (i) was a superintendent of a con-
struction site, who, though not an officer, had the power to terminate, on behalf of
his company, a contract with the primary employer, which he did at the union's
request. This was the basis of the Judge's additional statement that 8(b)(4)(i)
"does not cover appeals to those who on behalf of their employer have power law-
fully to terminate, cease, or otherwise control business relations with the so-called
primary employer,"-a fact which would follow a fortiori from his previous pro-
nouncement concerning what the provision does cover.
Judge Wyzanski's conclusion that the ban reaches no higher than at the level of
those "who have minor supervisory functions" would seem to me to have the sup-
port of the legislative history of that provision. The belated conception of the
term "individual employed" as embracing supervisors,' after a period in which it was
sponsored as being intended merely to close the loophole inhering in the exemption
of rank-and-file workers in certain types of employment, would tend to suggest that
the term was intended to apply to a supervisor whose work and rank serve to ally
him in interest and in responsiveness to union appeals with those with whom he
oversees. It is that class of person that has been typically involved in the body of
decision, beginning with Conway's Express,19 which posed the problem exemplifying
the "loophole" referred to in the congressional declarations 20 and who was meant
in Senator Kennedy and Representative Thompson's reference to supervisors who
"in some industries . belong to the union of the rank-and-file workers or as ex-
members are sympathetic to it," (supra, footnote 14), and Senator Morse's post-
conference reference to "a supervisor . . . who often is a union member, .. .
subject to union discipline [whose] inducement would be clearly as effective as
though inducement were applied to employees, themselves." (Supra, footnote 15.)
The above reflects the application of the rule of reason in the conception of who
should be identified with management in connection with the employer's dealings
with outsiders. While a supervisor in immediate charge of rank-and-file workers is
structurally part of "management," he is such in'the limited sense of being in the first
line of-management's communication with the rank-and-file concerning what is ex-
"Trial Examiner Wallace E Royster in Amalgamated Meat Cutters, etc (Peyton
Packing Company, Inc ), 131 NLRB No. 57.
IsTrial Examiner Martin S Bennett in International Brotherhood of Teamsters, etc
(Lohman Sales Co ), 132 NLRB No. 67. Trial Examiner Ramey Donovan in Upholsterers
Frame & Bedding Workers (Minneapolis International Furniture Co ), 132 NLRB No. 2
w Henry V. Rabouin doing business as Conway's • Empress , 87 NLRB 972, 979-981
("supervisors or other representatives of management") , enfd 195 F 2d 906, 911
(C A 2)
30 See also, e.g, Local Union No. 878 Teamsters etc (4 rkansas Express, Inc ), 92
NLRB 255, 265 (dock foreman) ; General Warehousemen and Employees Union, Local 646,
et' at (Roy Stone Transfer Corporation), 100 NLRB 856, 857 (assistant foreman)
Sheet Metal Workers etc. (Ferro-Co Corporation), 102 NLRB 1660, 1661, 1665 (foreman)
International Brotherhood of Teamsters etc (Clark Bros Transfer Company), 116 NLRB
1891, 1892, footnote 1 (supervisor also performing nonsupervisory duties) ; International
Brotherhood of Electrical Workers (Franklin Electric Construction Company Inc.), 121
NLRB 143, 144 (foreman, who was a member of the onion).
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 253
pected of them in regard to the manner of their performance. He is normally taken
from their Tanks, works with them to expedite their performance and to exemplify
what is expected of them. Except for the responsibility which he has for their per-
formance (see Act, Section 2(11)), he is for all other purposes, a worker, whose
orientation and conditioning ally him with rank-and-file. It is this which caused
Congress to see the immunity enjoyed under old 8(b) (4) by the inducement of that
kind of person as if he were identified with "management" for all purposes as "an
illogical loophole" in the old law. That this reflects the view of the original spon-
sors of the language of 8(b) (4) (i) would appear from the comment thereon by
Senator Dirksen in his "Report of the Minority Leader on the 1st Session of the
86th Congress," which he entered on the Record on September 14, 1959. As stated
previously (supra, footnote 10) he, along with Senator Goldwater, was a sponsor of
S. 748, the administration bill, which wasthe first to contain the change here con-
sidered (supra, footnote 9). Pointing to what had been achieved by the amendment
of the secondary boycott provision, he stated: 21
Moreover, the bill as it went to the White House makes it an unlawful practice
for a union to induce supervisory workers, or any single worker to refuse to
handle goods, or to strike, for any of the purposes outlined above. [Emphasis
added.]
What the above means is Shat while it had originally been contemplated that "all
supervisory and management personnel," as Senator Goldwater had then put it
(supra, footnote 10), be comprehended within subparagraph (ii), which illegalizes
coercive overtures to management, it was seen that the first rank of supervisor, the
"supervisory worker," as Senator Dirksen described him (supra, footnote 21), is so
closely allied with rank-and-file in economic station and sympathy as to make induce-
ment of him, as Senator Morse observed (supra, footnote 15), as effective as induce-
ment of rank-and-file workers. That, it would seem fair to conclude, is the level of
supervisor which Congress wanted encompassed in the group to whom inducements
are banned under 8(b)'(4) (i), leaving all others within the shelter accorded by (ii)
to employers and management from overtures of the menacing character.
It would follow that those above the first rank of supervision or whose jobs spon-
taneously identify them with management in their relations with the outside, such as
the construction site superintendent in Judge Wyzanski's ease and the superintendent
at Grand Union in this case, and, of course, the president or officer of a corporation
are not encompassed within the class of persons of whom inducement is banned
under 8(b) (4) W.
3. Concluding findings as to violation of Section 8(b) (4) (i) (B)
Accordingly, just I conclude that the nonthreatening inducement of George Piazza,
partner of Staats Express, was not 'a violation of 8(b ) (4) (i) (B), so do I conclude
that the nonthreatening inducement of E. K . Van Alstyne, president of M & R Cor-
poration, and of Superintendent Arthur Henningson of Grand Union Corporation
was not a violation of that provision . On the other hand , I conclude and find that
Respondent violated Section 8(b) (4) (i ) ( B) by the inducement of rank -and-file em-
ployees Bayly and Wescott of Grand Union Company and Monington of Gary Ware-
house Corporation , and of the various supervisors of foremen at R.T.A. Distributors,
Caterpillar Tractor Corporation, Montgomery Ward, Inc ., B. F. Goodrich and Com-
pany, Ro-La-Lume Company, Oneida Markets, and International Harvester
Corporation 22
There remains but one other class of person , not heretofore covered . This is
Forts Martin , agent of Styles Express. The record abundantly indicates , and the
General Counsel does not dispute , that he is an independent contractor. He owns
his freight terminal and his trucks, and operates a trucking service. He devotes the
latter exclusively to Styles Express, but as independent contractor and not as em-
ployee . The General Counsel contends that since Martin is an agent for Styles Ex-
press, he is by that token also "an individual employed by " it within the meaning
of 8(b ) (4) (i). These categories are not coterminous either in law or under our
statute . Cf. Amalgamated Meat Cutters etc. (Swift & Company, Intervenor) v.
N.L.R.B. 237 F. 2d 20 (C.A. D.C.), cert . denied 352 U.S. 1015. If the General
Counsel 's position were sound , it would make employees of such classes of agents as
II LH 1823.
22 The individual solicited at International Harvester told the union representatives
that he had already changed his routings to another carrier, but the solicitation itself
was an inducement within the proscription of 8(b) (4) (i) (B). -
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an attorney under retainer by a client, an agent seeking bookings for theatrical per-
formers, or a realty concern given an exclusive agency by a property owner to sell his
land. If Martin does not stand on his own feet as one running his independent busi-
ness, then he is to be equated with Styles Express, his principal, since Section 2(2)
defines employer to include "any person acting as an agent of an employer." I
conclude that Martin, while a "person" within the meaning of subparagraph (ii), to
whom it would have been a violation to make a threatening and coercive appeal, is
not an "individual employed by a person" to whom 8(b) (4) (i) forbids making one
in which force or its intimation has been shunned.
B. Case No. 2-CE-1: the violation of Section 8(e)
1. The 3-year contract between the Trucking Association and the Joint Teamsters
Council entered into on August 1, 1958, its signing by Staats Express on February
9, 1960, at the Respondents' request, and the attendant circumstances
Staats Express, as previously mentioned, is a partnership, composed of Frank and
George Piazza. The firm is a common carrier transporting freight in interstate com-
merce between New York and outside. At all times here involved, it has been a
member of the New York State Employers Trucking Association, and Respondent
has been a constituent local of the New York State Teamsters Joint Council. On
August 1, 1958, the Joint Council and the Trucking Association entered into a con-
tract for a 3-year period, expiring July 31, 1961. It is a comprehensive document,
covering all aspects of the employment relation, comprised of 37 articles, and spread
over as many printed pages. Article IX, the so-called "Protection of Rights" clause,
is a "hot cargo" provision, reserving to the Union "the right to refuse to handle
unfair goods," in the form of "goods from or to any [struck employer]," or "to
accept freight from or to make pickups from or to any [struck or picketed] estab-
lishment," under pain of the union's immediately going on strike against "any
employer" who insists that "his employee [sic] handle unfair goods or go through a
picket line after they have elected not to, and if such refusal has been approved in
writing by [the union]." 23
While Staats Express, as George Piazza testified, considered itself bound by the
contract, until February 9, 1960, it had never signed it even though at the end of
the contract, there is a separate page allotted for the respective signatures of the
individual local and employer involved. Indeed, the first page, which names the
parties, has a blank space for the particular company concerned, which, in the printed
form, is designated as "the Employer," who "agree[s] to be bound" by the
agreement 24
As stated, the contract remained unsigned by Staats Express and its name un-
mentioned in the blank allotted for "the Employer" (supra, footnote 24) until
February 9, 1960, about 3 months after Respondent started the strike at Van's.
23 The Union , under that clause, is to give the employer notice of all strikes
24 The first page, with the blanks for denoting the particular company and local union
involved , reads as follows :
NEW YORK STATE TEAMSTERS JOINT COUNCIL
FREIGHT DIVISION
LOCAL 'CARTAGE AGREEMENT
Covering Employees of Private,
Common, Contract and Local Cartage Carriers
for the period of
AUGUST 1, 1958 to JULY 31, 1961
In the jurisdiction of the following
Local Union Nos 65, 118, 182, 294, 317, 375,
506, 529 , 648, 649, 687 and 693
The ---------------------------------------------------------------------
(Company) ( Terminal Address)
hereinafter referred to as the EMPLOYER,
AND
the NEW YORK STATE TEAMSTERS JOINT COUNCIL, Freight Division and
Local Union----------, affiliated with the Eastern Conference of Teamsters and the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, hereinafter referred to as the Union, agree to be bound by
the terms and provisions of this Agreement.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 255
There is a conflict between Piazza, on the one hand,25 and Morey Hammond, president
of Van, on the other, concerning whether Staats until then had been accepting Van's
freight. For reasons later stated, I resolve that conflict in favor of Hammond; who
testified that Staats, until the incident about to be described, had always accepted
his company's freight.
On February 9, 1960, Staats Express received in the mail two copies of the con-
tract, which were sent by the Respondent with a covering letter asking that Staats
sign and return one. Piazza, on behalf of his firm, signed and returned a copy
to the Respondent as asked. Filled in for the first time was the blank in the first
page to denote "the Company, hereinafter referred to as the Employer" (supra,
footnote 24) and the space in the last page for the Company's signature 26
Within a day or two thereafter occurred the incident in which Business Agent
Smith, accompanied by striking trucker Francis Bacon, came to the premises of
Staats Express while a Van truck was waiting, and told Piazza that Van was on
strike and he was not to accept its freight. Immediately after this, Piazza told
President Hammond of Van that he had no alternative under his contract but to
refuse to unload Van's truck.
2. Legal discussion and conclusion
Section 8(e), added to the Act by the 1959 statute, and effective November 13,
1959, provides:
It shall be an unfair labor practice for any labor organization and any employer
to enter into any contract or agreement, express or implied, whereby such
employer ceases or refrains or agrees to cease or refrain from handling, using,
selling, transporting, or otherwise dealing in any of the products of any other
employer or to cease doing business with any other person, and any contract or
agreement entered into heretofore or hereafter containing such an agreement
shall be to such extent unenforcible and void: . . . [The omitted portion con-
tains an exception for the construction industry, which is not pertinent here]
As amply appears in its legislative history, Section 8(e) is aimed at precisely the
"Protection of Rights" clause here involved, which was variously described as typical
in Teamsters' contracts.27 That clause has, of course, been "unenforcible and void"
from the day that 8(e) became effective. Our question is whether the transaction
of February 9, 1960, whereby Respondent procured the signature thereto of Staats
Express, transgressed the provision making it an offense to "enter into" such an
agreement. Preliminarily, we may dispose of Respondent's contention that since
only Staats Express signed the document on February 9, 1960, Respondent cannot
be deemed to have "entered into" it in any event. The agreement was forwarded
by Respondent to Staats in duplicate with a covering letter explicitly requesting that
25 All references to that surname are to Partner George Piazza.
2e The last page, after being filled in by Staats Express and returned to Respondent
reads ( with the written portion preceded by the symbol " ( S)" and the remainder being
in print ) as follows :
LOCAL UNION NO. ( S) 294 affiliate of I B OF T.,
CW & H. of A., INDEPENDENT
By ------------------------------------------------------------------------
( Signed)
Its ------------------------------------------------------------------------
(Title)
(S) Staats Express
(Signed)
By (S) George Piazza
(Signed)
Its (S) Partner
(Title)
Home Office Address (S) 66 So . Ferry St
(Street)
(S) Albany
(City)
N.Y.
(State)
(S) 2/9/60
(Date Signed)
21 "Such clauses have become standard in contracts entered into by the Teamsters
Union." From the Senate Committee 's Minority Report at the time the Kennedy-Ervin
bill was reported out. I LH 476.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Staats sign. The transaction was thus a bilateral one, "instinct" with mutual obli-
gation,28 and if Staats is to be deemed to have,"entered into" it,, so too is Respondent.
This brings us to the larger question of whether, the contract, since it was already
"entered into" by the respective parent bodies and was still in effect on February 9,
1960, can be said to have been entered into on that day by Staats and Respondent,
within the meaning of Section 8(e). The issue presented by the earlier entry by
the parent bodies is avoided if it can be said that the contract was not binding on
Staats until it signed it on February 9. The absence of Staats' signature at the end
and even of its name in the very space allotted for the particular company which
"agree[s] to be bound by the terms and provisions of this Agreement" (supra,
footnote 24) may well have prevented the agreement from being legally binding
upon Staats until it did sign . If that is so, then Respondent and Staats unquestion-
ably "enter[ed] into" the contract when the former procured Staats' signature thereto
on February 9.
However, the matter of whether the contract was legally binding on Staats before
February 9, 1960, despite the absence of its signature thereon is not, as I view it,
crucial to the issue here. For the purpose of that issue, we may even assume that
Staats was legally bound by the contract of August 1, 1958, from its inception without
its signature, as Piazza testified he considered his firm to be. Even if that were so,
I would not deem this to be conclusive on the question of whether Staats and Re-
spondent, on February 9, 1960, "enter[ed] into" the illegal compact contained in the
contract in the sense which Section 8(e) contemplates.
It is true that we normally think of the term "enter" as denoting a beginning, and
the lexicon supports such a concept to the fullest.29 Were this a proceeding for
violation of a criminal statute, that point should be sufficient to absolve a defendant of
the charge of having offended the provision.30 Such, however, is not the nature of
this proceeding or its aim. This is a civil, remedial proceeding designed to effectuate
a social purpose. The emphasis in such case is upon a "liberal" construction,
designed to promote the objective of the statute.31 Here we heed the admonition
of Judge Learned Hand "not to make a fortress out of the dictionary" and "to
remember that statutes always have some purpose to accomplish." 32
Just as a literal reading of the provision considered in the previous case would
outrun the congressional purpose, so would a literal reading of Section 8(e) here
bring us short of that purpose. It would seem manifest that Congress, in forbidding
labor organizations and employers "to enter" into hot-cargo agreements, was not
concerned with the legal rights or obligations arising therefrom between the parties,
for it acted to prevent any legal relation from arising thereunder and to wipe out
any which might have inhered in those already existing. Hence the argument that
the contract, by virtue of its prior execution by the parent bodies, was already "bind-
ing" on the individual companies and locals, with the result that they could not
"enter into" the contract by a later execution of it strikes me as beside the point
here. Congress was concerned with the parties making the kind of affirmative com-
mitment, which, while void in law, enabled the Union to exert "moral suasion" upon
the employer as a result of his signature to the contract.
That Congress was not so much concerned with the legal relation flowing from
the compact as with the actual execution and signing thereof and the use to which
the Union could put it is amply manifested by the way, in which, during the con-
gressional consideration of the measure, the terms " sign" and "execute" were used
29 See Mr Justice Cardozo's classic opinion rendered as Judge of the Court of Appeals
in Wood v Lady Duff Gordon, 222 NY 88; 118 N E 214
19 In Webster's New International Dictionary ( 1933 ), "enter" Is defined as
3 To make a beginning ; to take the first steps ; engage ; start, as to enter into
business ; to enter upon a career ; also to get admission or to be admitted , as to
enter Into society; to enter into holy orders.
4. To make one 's self a party; with into, formerly also in; as to enter upon a
treaty of peace
In Black's Law Dictionary (4th ed. 1950) 625: "To form a constituent part, to become
a part or partaker."
30 Yates v. U.S., 354 U S. 298, 306-307.
ai See NLRB. v Griswold Manufacturing Company, 106 F 2d 713, 721 (C.A 3) .
Jeffery-DeWitt Insulator Co v. N L.R.B., 91 F. 2d 134, 139 (^C.A 4) , N L R B v Knox-
ville Publishing Co, 124 F. 2d 875, 881 (C.A. 6) ; North Whittier Heights Citrus Assocsam
tion v N.L.R B , 109 F. 2d 76 (C.A. 9) ; cf. Phelps Dodge Corp v. N.L R B., 313 U.S 177
32 Cabell v. Markham, 148 F. 2d 737 , 739 (C.A. 2), affd. 326 U S 404.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 257
,interchangeably with "enter into." It also appears from the reference to "moral
suasion" made by Senator McClellan, who was the first to propose a bill making it
illegal, for parties even voluntarily to enter into a hot-cargo agreement 33 In
introducing S. 1385 on March 12, 1959, which would have made hot-cargo agree-
ments between an employer and a labor organization a penal offense (I LH 327),
Senator McClellan noted that despite the Supreme Court's decision that a hot-cargo
agreement is not a defense to a secondary boycott, there was respectable "law re-
view" opinion to the effect that the agreement might still confer private rights which
the Union could assert in court, and that transcending this: 34
'Also to be considered is the possible nonlegal effect of such a clause as a gentle-
men's agreement providing moral suasion against an employer. [Emphasis
supplied.]
It is the "moral suasion" which the Union can exert on an employer on the strength
of his signature which, as I have noted, would seem to me to rationally account for
Congress making it an offense to "enter into" a hot-cargo agreement in addition to
declaring it "unenforcible and void." That it is the execution of such an agree-
ment rather than an ensuing legal relation which was the congressional target is
indicated, as I have said, by the frequency, indeed the uniformity, with which "sign"
and "execute" were used interchangeably with "enter into" during the formulation
of the legislation concerned with illegalizing hot-cargo contracts. The Senate bill
(S. 1555) as passed on April 25, 1959, included Section 8(e) in its present form
(except that it applied only to contracts made with common carriers). I LH 582.
Inserted in the record thereafter was a laudatory editorial in the Washington Post,
which stated in pertinent part: 35
It (the Senate Bill) did not deal comprehensively with secondary boycotts, but
it voted to prohibit common carriers from signing labor contracts that would
prevent them from handling "hot cargo" from strikebound or nonunion plants.
[Emphasis supplied.]
The Landrum-Griffin bill (H.R. 8400) as introduced (I LH 683) and as ultimately
passed (II LH 1700) dealt with hot-cargo contracts in Section 705(b) of that bill.
Subdivision (1) of that section contained Section 8(e) in its present form without
the limitation in the Senate Bill, and subdivision (2) additionally provided the fol-
lowing:
Any contract or agreement between an employer and a labor organization
heretofore or hereafter executed which is or which calls upon anyone to engage
in, an unfair labor practice under Section 8(e) of the National Labor Relations
Act, as amended , shall be to such an extent unenforcible and void . [Emphasis
supplied.]
This last added nothing to what is already in Section 8(e), and so it does not
appear in the final enactment, but it does tend to underscore how the two terms were
thought as interchangeable. This is further highlighted during Representative
Griffin's espousal of the provision in his bill, similar to that in the administration
bill in the Senate (supra, footnote 32) which, in the amendment to the secondary
boycott provision, would have forbidden forcing a person to "cease, or agree to cease"
doing business with another. That provision, as I have stated, was deleted in con-
ference because it was deemed redundant in the light of 8(e), but Representative
Griffin's comment is illuminating concerning the basic target of all proposed antihot
cargo contract legislation. In his analysis previously referred to (supra, footnote 12),
he stated (II LH 1523) :
Under existing law strikes to force or require secondary employers to cease
doing business with some other persons are forbidden. The law, however,
' Until then, it had been 'dealt with by making it an illegal objective, under the amend-
ment to the secondary boycott provision, which is now 8 (b) (4) (1) (B), to endeavor to
force a person "to cease, or agree to cease" doing business with another person Section
503 of S. 748, the administration bill, at I LH 142, and the comments of its sponsors in
Minority Report of the Senate Labor and Public Welfare Committee at I LH 476, and
Senator Goldwater's comment on the floor at II LH 1079. The words "or agree to cease,"
which also appeared in the House bill as passed (II LH 1700), were dropped in con-
ference in view of passage of 8(e).
34 II LH 1021.
85 II LH 1264.
599198-62-vol. 131-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not prohibit resort to the same kind of activity to force such employers
to sign contracts or agreements not to handle or transport goods coming from
a ,source characterized by a union as "unfair." [Emphasis supplied.]
From the time that Section 8( e) in its present form was included in the con-
ference bill to its final enactment, the comments would indicate that "sign" and
"enter into" were interchangeable terms, or more accurately stated, that "enter into"
was conceived of an embracing signing or executing. Thus, Senator Morse in his
comments on the conference committee bill, previously mentioned (supra, footnote
15) in explaining why he thought 8(e) without being limited to carriers as in the
Senate bill was too broad, introduced his discussion with the statement (II LH 1428):
The Senate, because the "hot cargo" agreement had seemed to be abused, and
because the Teamsters had shown up in the McClellan hearings as the union
which had most clearly ignored its obligations to its employees and to the
public, passed a bill making it illegal in the trucking industry to sign a hot cargo
provision. [Emphasis supplied.]
Senator Dirksen, in his report of the Minority Leader filed September 14, 1959
(supra, footnote 21), describing 8(e), stated (II LH 1823):
The bill makes it an unfair labor practice for a union and an employer to sign
a so-called "hot cargo" contract . . . [Emphasis supplied.]
Finally, and rather climactically, is the explanation of the provision given by
Senator Goldwater in his analysis of the Labor-Management Reporting and Dis-
closure Act, which he included in the Record on September 14, 1959. As sponsor
of S. 734, the administration bill, he along with Senator Dirksen were the first to
espouse illegalizing hot-cargo contracts (albeit of the compelled variety. See supra,
footnote 10). Concerning Section 8(e), he stated (II LH 1857):
It is an unfair labor practice for a labor union and an employer to enter into any
[hot cargo] contract. . This means that such contractual clauses are per se
illegal. It is unlawful for either party even to execute such an agreement, . . .
[Emphasis supplied.]
It might be asked why Congress used the term "enter into" when it meant sign
or execute. The answer which at once comes to mind is that it used a broader term
to encompass, in addition, arrangements made other than in writing, as the proscrip-
tion in Section 8(e) of any "contract or agreement, express or implied" would in-
dicate. While Congress envisioned more ways of entering into the forbidden
agreement than physically executing one, it envisioned the signing of one and the
use to which such a signature could be put as a catalyst for the secondary boycott
evil.
The use of a signature to a contract and the "moral suasion" it exerts would seem
to be exemplified by the facts of this case . Repondent was content to have merely
the Trucking Association's signature without that of Staats Express until it embarked
upon its pervasive plan to boycott Van in support of its strike. As previously
found, despite the strike, Staats had been receiving Van's freight as usual.36 Re-
spondent then asked Staats to sign the contract, with the offending clause in it, and
Staats complied. Armed with Staats' fresh ceremonial affirmance of its "obligation"
under that provision, Respondent's business agent appeared at Staats' place just as
a Van truck was being unloaded and assumed an authority there somewhat in
contrast with entreating approach to other employers. According to Piazza's
credited testimony, the visitors "called to me and told me not to accept his freight-
that is, Van Lines." Business Agent Smith testified that "he called to [Piazza] and
in a rather loud tone of voice which would leave nothing to chance," told him Van
was on strike.37
36 All the surrounding circumstances, including the demeanor and quality of the testi-
mony of Morey Hammond, president of Van, support his testimony that Staats had been
receiving Van's freight until the visit of Business Agent Smith immediately following
the contract. Piazza, in testifying that his firm had not done business with Van from
the outset of Respondent's strike, impressed me as quite discomfited and apprehensive
about openly avowing in the presence of Teamsters' representatives that he had been doing
business with any carrier on strike with Teamsters An insight' Into,' his state of mind
was previously afforded by the statement attributed to Piazza by Francis Bacon, who
accompanied Business Agent Smith during the Van truck incident. Bacon testified that
Piazza "said that he would [cooperate]. He didn't want any trouble from the owner or
from the Union."
37 Smith testified he did not know the truck at Staats' premises at the time belonged
to Van , because Van's name was not on it. The sequence of coincidences is too potent
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 259
The timing of the events,-the procurement of Staats' signature after doing with-
out it for over a year and a half, and the descent upon its premises immediately
afterward during the presence of a Van truck for unloading to remind it in peremp-
tory tones of a strike with Van, would indicate that the purpose of the transaction
of February 9, 1960, was to lay the groundwork for the kind of "moral suasion"
which Respondent here exerted upon Staats to end all further dealing with Van.
The incident above described would seem to me an illuminating instance in vindi-
cation of the pragmatic or "case method" approach in the interpretation of a
statute. Without the "impact of reality" afforded by the occurrence, and had I been
left to interpret Section 8(e) in the abstract, I may well have been inclined to the
view that the execution of a contract by one who is already bound by it cannot be
considered as "enter[ing] into" it. The transaction struck me, however, as the very
kind of thing which Congress must have intended to avoid. As I have stated, since
Congress was declaring hot-cargo contracts to be a nullity anyway, the only rational
purpose to be served by additionally prohibiting parties to "enter into" them, would
be to prevent the Union from being able to exert the psychological or social pressure
which inheres in a fresh signature to an unequivocal commitment. The social dread
of being branded a welcher is often stronger than concern over the legal sanctions
of the commitment made, and in the hard-boiled environment of a labor contro-
versy, a John Hancock in the hand is worth two Blackstones in the bush.
I accordingly find that by the transaction of February 9, 1960, in which the Re-
spondent Union and Staats Express individually made the hot-cargo commitment
previously made on their behalfs by the respective parent bodies, they entered into the
hot-cargo agreement within the meaning and intendment of that term as used in
Section 8(e) of the Act, and in violation of it 38
IV. THE REMEDY
It having been found that Respondent has engaged in certain unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
The violation of Section 8(b) (4) (i) (B), as alleged in the complaint in Case No.
2-CC-551, was part of a pervasive plan to have all companies in the area discon-
tinue their prior business dealings with Van. The injunctive recommendation will
therefore be that Respondent cease inducing any individuals employed by any per-
son doing business with Van from performing services in order to compel their re-
spective employers to cease doing business with Van. Since the term "individual
employed" requires interpreting in the light of the facts, there will be added the ex-
pression "whether in a rank-and-file capacity or as a supervisor."
As to the violation of Section 8(e), it has been found that Respondent's procure-
ment of Staats' signature to the contract, with the illegal hot-cargo clause in it,
offended the provision against entering into such a contract, and, in addition, was
motivated by an intention to use it as a basis for exerting moral suasion upon Staats
to boycott Van. Respondent should therefore retain no advantage from the transac-
tion of February 9, 1960. It should accordingly return to Staats Express the copy
of the contract containing the latter's signature dated February 9, 1960, with a cover-
ing communication in writing that the transaction of that date under which Staats Ex-
press signed the contract in question, is rescinded, that Respondent claims no rights
against Staats Express by virtue of its having signed the contract on February 9,
1960, and specifically, that article IX, the "Protection of Rights" clause is void and
unenforcible, and that no effect will be given or sought to be given to it.39
to make Smith's disclaimer creditable. A "loud tone of voice which would leave nothing
to chance," would hardly be comprehensible if it were not intended to forestall something
about to take place-here the unloading of the truck
38 Respondent's final point is that Staats "signed the contract that [it] was supposed
to sign in 1958," and that Respondent was not "under any obligation to strike [the
offending clause] from the contract." Respondent overlooks that this was no longer
1958, but 1960, and that the offending provision, now void in law, was being revived by
a fresh execution. Additionally, apart from the matter of abstract "obligation," there
is the matter already noted: that by causing Staats to execute the contract, under the
timing and in the context here disclosed , without deleting the illegal provision , Respond-
ent evidenced an intention to instill a sense of obligation in Staats under that very provi-
sion as a prelude to its overture to Staats to boycott Van
:D Nothing is here intended to prevent Respondent from again having Staats Express
execute the contract, but with article IX, the "Protection of Rights" clause, omitted
entirely , or crossed out, with the excision duly signed or initialed.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the injunctive provision : the transaction with Staats flowed in part from the
absence of its signature on a contract made by the Trucking Association, of which
it is a member . There is no testimony concerning whether other employers belong-
ing to the Association and omitted to sign the contract, although Respondent's coun-
sel, during oral argument claimed that Staats was unique on that score . It would
seem that the healthy purpose of "prevention or prophylaxis" 40 would be served by
forbidding future entry into a hot-cargo agreement with Staats Express or any other
employer.
The violations in the respective cases are alleged in separate complaints, which
have not been consolidated . It would seem appropriate to have the notices likewise
not commingled , since the employers involved in Case No . 2-CC-551 do not neces-
sarily have a legitimate interest in the violation in Case No. 2-CE-1, in which Staats
alone is involved.
Upon the basis of the foregoing findings of fact , and upon the entire record, I
hereby make the following:
CONCLUSIONS OF LAW
1. Local 294, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , is a labor organization within the meaning of the Act.
2. Van Transport Lines, Inc., the Grand Union Company, Gary Warehouse Cor-
poration , R. T. A. Distributors , Caterpillar Tractor Corporation , Oneida Markets,
Inc., International Harvester Company, Montgomery -Ward Co ., B. F. Goodrich &
Co., and Ro-La-Lume Corporation are persons engaged in commerce or in an in-
dustry affecting commerce within the meaning of the Act.
3. The rank-and-file employees and the supervisors , in the persons of the shipping
and receiving foremen of the above persons, are "individuals employed by" such
persons within the meaning of the Act.
4. By inducing and encouraging individuals employed by the above -named per-
sons to refuse, in the course of their employment , to perform services in connection
with the handling of freight of Van Transport Lines, Inc., with an object of forcing
or requiring such persons to cease doing business with Van Transport Lines, Inc.,
Respondent engaged and is engaging in unfair labor practices within the meaning of
Section 8 (b) (4) (i) (B) of the Act.
5. By entering into a contract with Staats Express, whereby Staats Express agreed
to cease or refrain from handling the freight of or doing business with any struck
or picketed employer , or any employer declared "unfair" by Respondent Union,
Respondent Union engaged in and is engaging in an unfair labor practice within
the meaning of Section 8(e) of the Act.
6. Said unfair labor practices affect commerce within the meaning of Section 2(6)
and (7 ) of the Act.
[Recommendations omitted from publication.]
-Hutcheson , Judging as Administration , Administration as Judging , 21 Texas Law
Review 1, 6.
International Brotherhood of Electrical Workers, Local Union
340, AFL-CIO [Walsh Construction Company] and Jack L.
Wood . Case 'No. 20-CB-760. April 26, 1961
DECISION AND ORDER
On October 25, 1960, Trial Examiner David F. Doyle issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto . The Respondent filed exceptions to
the Intermediate Report, together with a supporting brief.
131 NLRB No. 40.