Truck Drivers Union Local No.413

National Labor Relations Board - Board Decisions

Feb 26, 1963

140 N.L.R.B. 1474 (N.L.R.B. 1963)

1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection, and to refrain from any or all
such activities, except to the extent that such right maybe affected by an agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized by Section 8(a) (3) of the Act, as amended.
WE WILL offer to Clyde Hensley and E. D. Sheets employment at the same
or substantially equivalent positions at which they would have been employed
had they not been discriminated against, without prejudice to any seniority or
other rights and privileges they might have acquired, in the manner set forth
in the section of the Trial Examiner's Intermediate Report entitled "The
Remedy," and make them whole for any loss of earnings they may have suffered
by reason of the discrimination against them.
All our employees are free to become or remain, and to refrain from becoming
or remaining, members of the above-named or any other labor organization, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized by Section
8 (a) (3) of the Act as amended.
SHAWNEE INDUSTRIES , INC., SUBSIDIARY OF
THIOKOL CHEMICAL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone
No Edison 5-5341, Extension 284, if they have any question concerning this notice
or compliance with its provisions.
Truck Drivers Union Local No. 413, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, and Central States Drivers Council, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and The Patton Warehouse, Inc. and
Arkansas Best Freight System; The Cleveland, Columbus and
Cincinnati Trucking Co.; C. and D. Motor Delivery, Inc.; Dixie
Ohio Express; Haeckl's Motor Freight; Huey Motor Express,
Inc.; W. L. Mead, Inc.; Consolidated Freightways; Reinhardt
Transfer Co.; Suburban Motor Freight, Inc.; The White
Transportation Co., Parties to Central States Area Local Cart-
age Agreement and Alpha Lines, Inc.; Arkansas Best Freight
System; Cleveland, Columbus & Cincinnati; Highway, Inc.;
C. and D. Motor Delivery Co.; Motor Freight Corp.; Haeckl's
Motor Freight; W. L. Mead, Inc.; Consolidated Freightways;
Suburban Motor Freight; Reinhardt Transfer Co.; The White
Transportation Co., Parties to Central States Area Over-the-
Road Motor Freight Agreement, and Ohio Rider. Cases Nos.
9-CE-5-1 and 9-CE-5-L. February 26, 1963
DECISION AND ORDER
On November 7, 1961, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
140 NLRB No. 136.
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1475
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report together with a supporting brief. The
General Counsel filed limited exceptions to the Intermediate Report
with a statement in support thereof. On December 20, 1961, the Board
heard oral argument in Washington, D.C., in which all parties were
given an opportunity to appear and participate.'
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 Interme-
diate Report, the exceptions and briefs,2 the oral argument, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner as amplified and modified
in this Decision and Order.
The parties stipulated at the hearing that the Respondents and
certain Employers and Employer Associations have executed and are
currently parties to two collective-bargaining agreements. These are
an "Over-the-Road Motor Freight Agreement" and a "Local Cartage
Agreement" covering drivers employed in the Central States area, com-
prising all or parts of 14 States from West Virginia to Nebraska. The
complaint alleged that certain provisions of these collective-bargaining
agreements amount to illegal hot-cargo agreements within the mean-
ing and proscription of Section 8 (e) of the Act. Section 8 (e) reads
in pertinent part as follows :
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 :
Provided ... .
1. In their exceptions to the Intermediate Report issued in the com-
panion Brown Transport case, supra, the Respondents raised certain
contentions as to the constitutionality of Section 8 (e) and as to the
scope and meaning of that section, which have been incorporated by
I Because of the similarity of the issues involved , this matter was consolidated for
purposes of oral argument with Truckdrivers & Helpers Local Union No. 728 et at (Brown
Transport Corp ), 140 NLRB 1436
2 Briefs amncus curiae were filed in the Brown Tran8port matter prior to the oral argu-
ment , by the AFL-CIO and by a number of International Unions . They have been con-
sidered in the determination of this' case.
681-492--63-vol. 140-94
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reference into the instant case. These contentions have been fully con-
sidered in the attached Intermediate Report. The Respondents argue
that Section 8 (e) denies them due process of law since it allegedly
establishes "irrational classifications," in its exemption from Section
8 (e), of certain types of agreements which may be entered into in the
construction and apparel industries. The Board's position has always
been that it must assume the constitutionality of the Act which it is
called upon to administer, in the absence of a binding court decision
to the contrary. Accordingly, we reject this argument of the
Respondents?
The Respondents also argue that the challenged contract clauses,
to be discussed below, do not constitute an express contract or agree-
ment within the scope of Section 8(e), whether they are considered
individually or collectively. These arguments have been fully con-
sidered in the Intermediate Report and the Board adopts the reason-
ing and conclusion of the Trial Examiner that the operative para-
graphs of article 9, section 2 of the agreements fall within the scope
of Section 8 (e) of the Act.'
2. Article 9 of both agreements reads identically and, is set out in
full in the Intermediate Report. In order to facilitate discussion of
its individual sections, we shall also set them out separately at ap-
propriate places in our Decision and Order. Article 9 is headed "Pro-
tection of Rights" and its first section reads as follows :
Section 1, Picket line
It shall not be a violation of this Agreement and it shall not be
cause for discharge or disciplinary action in the event an em-
ployee refuses to enter upon any property involved in a labor
dispute or refuse to go through or work behind any picket line,
including the picket line of Unions party to this Agreement and
including picket lines at the Employer's place or places of
business.
This section provides that employees may with impunity refuse to
enter any property involved in a labor dispute and may refuse to cross
or work behind any picket line, specifying particularly but without
limitation picket lines established by the Respondents and picket lines
at the places of business of employers who are parties to the agree-
ment. The Trial Examiner concluded that section 1 did not violate
Section 8(e) of the Act insofar as it granted employees protection
s Amalgamated Lithographers of America etc. (The Employing Lithographers , etc.),
130 NLRB 985, 991, enfd . as mod . In other respects , 309 F. 2d 31 (C.A. 9). To the same
effect see, The Employing Lithographers of Greater Miami, Florida v. N L.R.B. (Miami
Post Co.,) where the Court of Appeals for the Fifth Circuit held that the exemption of
the apparel industry did not render Section 8(e) unconstitutional as a violation of the
due process clause of the fifth amendment. 301 F. 2d 20 (C.A. 5), enfg. 130 NLRB 968.
' See also, Amalgamated Lithographers , supra; The Employing Lithographers V. N L.R B.,
supra, and Amalgamated Lithographers of America, at at., 137 NLRB 1663, Intermediate
Report.
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1477
against their refusal to enter their own employer's premises during a
labor dispute or to cross a picket line lawfully established there. He
also concluded, however, that insofar as section 1 attempted to im-
munize employees against disciplinary action for refusing to cross a
primary picket line at the premises of employers who are not parties
to the agreement, it is an illegal attempt to curtail or to cause a cessa-
tion of business between the primary or struck employer, and the
trucking firm or secondary employer, whose employees refuse to cross
the picket line.
To the extent that the right of employees not to cross a picket line
at their own employer's place of business is primary activity protected
by Sections 7 and 13 of the Act, there can be no doubt that the picket-
line clause is, as the Trial Examiner found, not violative of Section
8(e) in obtaining immunity from disciplinary action for such
employees.
We are not wholly in agreement, however, with the Trial Exam-
iner's conclusion that the picket-line provision would, under all cir-
cumstances, violate Section 8 (e) insofar as it attempts to safeguard
the jobs of employees who refuse to cross a picket line established at
the premises of an employer other than their own. The Trial Exam-
iner reasoned that an employer does not violate Section 8(a)(3) by
disciplining an employee who refuses to cross a picket line at another
employer's place of business,' but that if this right to discipline is
given up by agreeing to a "picket line" clause, the neutral employer
thereby agrees to cease doing business with the primary employer in
violation of Section 8(e). Relying on the legislative history of the
Landrum-Griffin Act, the Trial Examiner concluded that it was the
congressional intent in enacting Section 8(e) to insulate neutral em-
ployers from the pressure to cease doing business with a struck em-
ployer, but outlawing picket-line clauses. He distinguishes the right
of strikers at a primary picket line to persuade the employees of other
employers not to cross, from a contractual provision which grants
immunity to employees who refuse to cross a picket line. He was of
the opinion that the Section 8 (b) proviso 5 saves unions from Section
8(b) (4) violations when employees refuse to cross a picket line at
5 Since the issuance of the Intermediate Report, a majority of the Board has held that
the refusal to cross a picket line at another employer 's premises is protected activity, and
the employer of employees who refuse to cross may not discriminate against them for their
refusal . Redwing Carriers, Inc., 137 NLRB 1545 The case also holds that an employer
does have a right to attempt to run his business despite the sympathetic action of his
employees who refuse to cross a picket line, and in doing so may replace them , thereby
effectuating their discharge . There was no contractual provision in that case dealing
with the power to discharge for failing to cross.
O The proviso reads :
Provided, That nothing contained in this subsection ( b) shall be construed to make
unlawful a refusal by any person to enter upon the premises of any employer (other
than his own employer), if the employees of such employer are engaged in a strike
ratified or approved by a representative of such employees whom such employer is
required to recognize under this Act . .. .
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another employer 's place of business ; however, he deems article 9,
section 1 of the agreements involved here to violate Section 8(e), be-
cause he believes that the Section 8(b) proviso is limited in its appli-
cation to Section 8 ( b) (4) and does not apply to Section 8(e). We
believe that his analysis fails to take into account in interpreting Sec-
tion 8 ( e), that Congress meant to preserve in Section 8 (e) the limita-
tions and safeguards with respect to certain types of secondary
activities which had already been incorporated into Section 8 (b) (4).
We view the admittedly difficult problem of ascertaining the mean-
ing of the statute in the light of the expressed congressional intent
as to its scope and purposes , from a different perspective . Our primary
concern, it seems to us , must be to determine what the status of picket-
line clauses was before the enactment of Section 8 (e) and then to deter-
mine whether , and in what respects , Congress changed the existing
law. The legality of a contractual agreement to grant immunity from
discipline to employees who refuse to cross picket lines was considered
by the Supreme Court in N.L.R.B . v. Rockaway News Supply Com-
pany, Inc., 345 U.S. 71. The Court held there that a bargaining agree-
ment could validly provide either that an employee may or that he
may not be required to cross a picket line. In its opinion, the Court
said, at 345 U.S. SO:
In the section by which the Labor Management Relations Act
prescribed certain practices of labor organizations which shall
be deemed unfair, there is a proviso that nothing therein "shall
be construed to make unlawful a refusal by any person to enter
upon the premises of any employer ( other than his own employer),
if the employees of such employer are engaged in a strike ratified
or approved by a representative of such employees whom such
employer is required to recognize under this Act. . . ." This
clearly enables contracting parties to embody in their contract a
provision against requiring an employee to cross a picket line
if they so agree. And nothing in the Act prevents their agreeing
upon contrary provisions if they consider them appropriate to
the particular kind of business involved . An employee 's breach
of such an agreement may be made grounds for his discharge
without violating § 7 of the Act. N.L.R.B. v. Sands Co., 306
U.S. 332, 334.
Thus, prior to the 1959 amendments , it appears that the Rockaway
case stood for the proposition that a contractual provision by which an
employer agreed not to discipline an employee for failing to cross
a picket line at another employer 's premises would be legal, at least
to the extent that the provision did not go beyond the Section 8(b)
proviso. We note that the Section 8(b) proviso was held to be perti-
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1479
nent in Rockaway News, which was not a secondary boycott case, but a
case involving the meaning of Section 8(a) (3).
Members of Congress and witnesses at the legislative hearings on
the 1959 amendments expressed a concern as to whether Section 8 (e)
was intended to prohibit a contractual provision for immunity from
discipline for employees who refused to cross picket lines. Thus,
Senator Morse said :
I want to point out the Rockaway decision of the Supreme Court
which makes clear that where there is a contract with an em-
ployer, a worker is protected in his refusal to go through a picket
line, if the contract specifies that he has a right of refusal. I
am very much disturbed by legislative movements in the Congress
that would seek to destroy that protection. A "hot cargo" amend-
ment which, in my judgment, makes it illegal to sign an agree-
ment which would permit employees to refuse to go through picket
lines is vindictive.7
A substantial portion of the legislative debate over Section 8(e) was
devoted to allaying the fears expressed that Section 8(e) might have
the effect of outlawing agreements which incorporated the traditional
union practice of honoring picket lines established by other unions.
Thus, Senator Morse inserted into the Congressional Record a letter
from Senator Kennedy to Mr. Hoff a, president of the Teamsters,
which read in part as follows : 8
1. Hot Cargo: Your analysis maintains that section 707 of
S. 1555 s would require a trucking employee to go through a picket
line or lose his job. There is no requirement in section 707 that
an employee must go through a picket line and certainly nothing
in the section which necessitates that such an employee be dis-
charged, if he does [not]. As a matter of fact, the Taft-Hartley
Act already protects the right of an employee to refuse to cross
the picket line of an employer other than his own employer, if the
employees of such an employer are engaged in a strike ratified or
approved by a representative of such employees. Section 707
makes no change in this provision of existing law.
During the House debate, Congressman Cramer summarized the re-
sults of his research on the objection raised by the Teamsters to Section
8(e), that employees who refused to become strikebreakers could lose
their jobs, as follows : i0
7105 Cong Rec. 13576.
8 105 Cong. Rec. 13874.
8 Section 707(a) of S. 1555 proposed to add a new subsection (e) to Section 8 of the
Act. It was incorporated into the final bill , with changes not material here, as the present
Section 8(e).
10 105 Cong. Rec, 15677.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What the Teamsters and their kind are trying to accomplish
by their attack on the hot cargo provision is an amendment to
the Taft-Hartley Act which would legalize the refusal of a union
member to cross a picket line set up by "wildcat strikers" and
minority pickets who did not have the approval of the employees
working in the picketed plant. An employee should be aware of
the fact that his right to cross a picket line is restricted. He can
lose his job if he refuses to cross a picket line set up by a minority
of the employees or of a group of employees without authorization
of the majority union in the appropriate unit. However, he should
also be aware of the right he has under the Taft-Hartley and
also the Landrum-Griffin bill which can be used to prevent his
discharge for failing to cross a picket line so long as such picket
line has been ratified by the majority union of the employees in
the appropriate unit.
Thus, I have reached the following, and I believe correct, con-
clusion on the question raised :
First. The Landrum-Griffin hot-cargo provision puts in statu-
tory form the existing rule of the NLRB and the courts, including
the Supreme Court, that hot-cargo contracts are unenforcible. It
is [sic] no sense disturbs the further rule under which employers
may agree with the contracting union that an employer may-or
may not-be disciplined for refusal to cross a picket line at an-
other employer's establishment. No reasonable interpretation of
the language gives it such a meaning that would interfere with
this rule and no such interpretation is intended.
Second. The proviso in 8(b) (4) of the Taft-Hartley Act,
which specifically affords protection to the individual employee
who would not cross a picket line, is carried forward by the
Landrum-Griffin bill. As picketing situations arising from hot-
cargo disputes are described in that section [8 (b) (4) ] it would
protect the employee even though section 8(e), that is, the hot-
cargo section, also specifically applied.
Third. What the Teamsters and their kind want is full and
unrestrained leeway to refuse to cross any picket line at their
discretion, regardless of whether it is established by a union
entitled to representation rights.
Fourth. To conclude that the language of 8(e) bans an agree-
ment not to discipline employees who refuse to cross the picket line
reads into it a meaning that the wording of the section simply does
not incorporate. What the wording clearly does is to describe
as an unfair labor practice a hot-cargo contract between an em-
ployee [employer] and a labor organization and then pronounce
it unenforcible and void. Nothing is said in the section about the
individual employee. Nothing in the language requires him to go
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1481
through picket lines and nothing in it imposes a duty on the em-
ployer to discharge him if he refuses.
Finally, House Report 741 on H.R. 8342 stated, in reporting on the
bill as passed in the Senate (S. 1555) :... .
It is settled law that the National Labor Relations Act does not
require any employee to cross a primary picket line and that
pickets may request him not to cross a picket line (N.L.R.B. v.
International Rice Milling Company, 341 U.S. 665). The lan-
guage of the "hot cargo" ban in S. 1555-which your committee
adopted-did not impinge in any way on existing law concerning
the crossing, or not crossing, of picket lines by employees. How-
ever, in order to set at rest false apprehensions on this score, the
committee appended the disclaimer proviso which appears in
Section 705 (a) (2) of the bill.
The Trial Examiner has pointed out that the disclaimer proviso was
not included in the conference bill which eventually became the 1959
Act, and inferred that its absence from the bill as finally passed indi-
cates that picket-line clauses were not to be exempted from the pro-
scription of Section 8 (e). We believe, however, that the language
quoted above from the House Report 741 as to the insertion of a dis-
claimer proviso was to insure that the Senate bill would not be mis-
interpreted so as to invalidate agreements which granted immunity
against discipline to employees who refused to enter upon the premises
of an employer other than their own where such employer is engaged
in a primary labor dispute.
Sections of the Act should be interpreted, so far as possible, in
harmony with each other so as to effectuate the total statutory scheme.
In view of the legislative concern that certain so-called secondary
activities were not to be proscribed, we conclude that a "picket line"
clause, whose effect may be to cause a cessation of business between two
employers, is nevertheless valid under Section 8(e) insofar as it is
in conformity with the proviso to Section 8(b). Stated otherwise, a
contract clause which grants immunity to individual employees from
disciplinary action for their failure to cross a picket line would be
valid under Section 8(e) if it were limited (a) to protected activities
engaged in by employees against their own employer and (b) to ac-
tivities against another employer who has been struck by his own em-
ployees, where the strike has been ratified or approved by their rep-
resentative whom the employer is required to recognize under the
Act.
Clearly, section 1 of the agreements involved here is not so limited
and is therefore invalid under Section 8 (e)." Thus, section 1 would
'The Board has been cautioned against interpreting as valid under Section 8 (e), agree-
ments which can be so construed only through additions to or deletions from the actual
language Employing Lithographers of Greater Miami, Florida v. N.L.R.B., supra.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prevent an employer from disciplining his employees who refuse to
cross picket lines at another employer's place of business , which may be
established by a union not the majority representative, or from
disciplining his employees who refuse to enter upon any property
involved in a labor dispute , even though such dispute has not resulted
in a strike . The effect of denying to an employer his privilege of
replacing employees who refuse to carry out their assigned duties,
where the refusal is not protected by Section 13 or the proviso to
Section 8 ( b), is to require the employer to agree to cease or to refrain
from handling the products of, or otherwise dealing with , the em-
ployer whose products or services are under the union's ban.
The Respondents ' argument that the picket line clauses cannot be
reasonably interpreted as requiring the transportation employer to
cease or refrain from transporting the products of another employer
is necessarily based on the supposition that Respondent has no re-
sponsibility for what its members do. This argument is based on the
assumption that the language of section 1 (as well as the remaining
sections of article 9) constitute the entire express agreement of the
parties and , that there is no further "implied" agreement. These
suppositions and arguments have been disposed of by the Trial Ex-
aminer, whose reasoning we have adopted above.
3. The introductory paragraph of article 9, section 2, and its first
operative paragraph , referred to herein as (a), read as follows:
Section 2, Struck Goods
Recognizing that many individual employees covered by this
contract may have personal convictions against aiding the adver-
sary of other workers, and recognizing the propriety of individual
determination by an individual workman as to whether he shall
perform work , labor or service which he deems contrary to his
best interests , the parties recognize and agree that :
(a) It shall not be a violation of this Agreement and it shall
not be a cause for discharge of disciplinary action if any employee
refuses to perform any service, which , but for the existence of a
controversy between a Labor Union and any other person
(whether party to this Agreement or not ), would be performed
by the employees of such person.
The Trial Examiner found, in view of the preamble to section 2
which emphasizes the individual employees' right to self-
determination , that the apparent purpose and reach of paragraph
(a) was to preserve the right of secondary employees to refuse to
handle products or to perform services "farmed out" to their em-
ployer by a struck employer where such "farming out" during and
because of a labor dispute at the plant of the struck employer makes
the secondary employer his "ally." So construed , he found that para-
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1483
graph (a) embodies nothing more than the struck work-ally doctrine
which the Board sand Congress have sanctioned and which Congress
intended to preserve. We believe that in at least one important re-
spect section 2(a) exceeds the permissible limits of the "struck-work"
doctrine. We confine our discussion to one facet of this doctrine,
namely, the situation arising when one employer knowingly does work
by arrangement with a struck employer which would otherwise be
done by the striking employees of that employer.12 Unions have been
found not to have violated Section 8(b) (4) (B) when, in an extension
of a primary dispute with one employer, they have exerted pressure
on another employer who knowingly does work by arrangement with
the primary employer which, but for the dispute, would be done by
the primary employees. Section 2(a) may legitimately apply and be
enforced in many situations in which the Board would have found
no Section 8 (b) (4) (B) violation on the ground that the union's sec-
ondary pressure is merely incidental to its primary activities. Section
2(a), however, overlooks an essential requirement of the ally doctrine,
namely, that the struck work must be transferred to a secondary em-
ployer through an arrangement with the primary employer. As the
paragraph now reads, the Respondents here could demand exoneration
of their members, employed by a secondary employer, if they refused
to perform services which would customarily not be performed by
their employer but where the performance of such services is not the
subject of an arrangement between the primary and secondary em-
ployers. Stated more concretely, the Board has found a violation of
Section 8(b) (4) (B) when employees of one carrier were induced to
refuse to perform services or to handle goods assigned to that carrier
by the producer of the goods who was unable to have them handled
by another carrier whom he had previously used, because such carrier
had been struck.13 Because of the absence of any arrangement be-
tween the struck and the secondary employers, the work previously
performed by the struck employer may not be interfered with even
though the secondary employees are performing a service which, but
for the dispute, would customarily be performed by the employees
of the struck employer.
4. Section 2(b) provides generally that sanctions will not be im-
posed upon employees who voluntarily choose not to handle goods or
equipment involved in a labor controversy. It is to be construed, ac-
cording to the Respondents, together with section 2 (c) which provides
in effect that the contracting employer will continue its business rela-
tionship with a struck employer by any method which it deems ap-
12 See N.L.R .B. v. Business Machine and Office Appliance Mechanics Conference Board,
Local 459 , etc, 228 F. 2d 553 ( C.A 2) ; Shopmen 's Local Union No. 501 etc . ( Oliver
Whyte Company , Inc.), 120 NLRB 856; and International Die Sinkers Conference etc.
(General Metals Corporation ), 120 NLRB 1227.
13 United Marine Division of the National Maritime Union, AFL-CIO, Local No. 333
( D. M. Picton & Co., Inc. ), 131 NLRB 693.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate or proper but which does not require the use of employees
who exercise their individual rights under the agreement of refusing
to perform their normal duties. Section 2, paragraphs (b) and (c)
are set out below :
(b) Likewise, it shall not be violation of this Agreement and
it shall not be a cause for discharge or disciplinary action if any
employee refuses to handle any goods or equipment transported,
interchanged, handled or used by any carrier or other person,
whether a party to this Agreement or not, at any of whose termi-
nals or places of business there is a controversy between such car-
rier, or person, or its employees on the one hand and a Labor
Union on the other hand; and such rights may be exercised where
such goods or equipment are being transported, handled or used
by the originating, interchanging or succeeding carriers or per-
sons, whether parties to this Agreement or not.
(c) The Employer agrees that it will not cease or refrain from
handling, using, transporting, or otherwise dealing in any of the
products or any other Employer or cease doing business with any
other person, or fail in any obligation imposed by the Motor Car-
riers' Act or other applicable law, as a result of individual em-
ployees exercising their rights under this Agreement or under law,
but the Employer shall, notwithstanding any other provision in
this Agreement, when necessary, handle, use, transport, or other-
wise deal in such products and continue doing such business by use
of other employees (including management representatives),
other carriers, or by any other method it deems appropriate or
proper.
The Respondents argue that these paragraphs, read separately or
in conjunction, are not violative of Section 8 (e) because only the indi-
vidual rights of individual employees to refuse to handle goods or
equipment originating from strike-bound premises are protected, while
the contracting employer agrees that it will continue its previous busi-
ness relationship with the struck employer. The Respondents argue
that these contractual provisions differ fundamentally from the "trade
shop" clause found to be unlawful in Amalgamated Lithographers
of America and Local 78 etc. (Employing Lithographers of Greater
Miami, Florida, and Miami Post Company), 130 NLRB 968. The
"trade shop" clause in that case admittedly imposed another type of
sanction, that of reopening the contract and its possible termination,
in the event an employer requested individual employees to handle
nonunion goods. The Board has, however, also held that immunity
from discipline for individual employees may itself be an implementa-
tion of an objective to require employees not to handle struck goods
or equipment. In the companion Amalgamated Lithographers case,
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1485
130 NLRB 985, the Board found that the "refusal to handle" clause
in that agreement violated Section 8 (e) and said at page 988:
When contracting parties have agreed that if an employer re-
quests an employee to handle struck or nonunion work . . . and
the employer agrees that he will not discharge or discipline an
employee who refuses to handle such work, the ordinary remedy
available against a disobedient employee, the conclusion is ines-
capable, and we find, that the parties in substance have "im-
pliedly" agreed that the employer will not handle such struck or
nonunion work.14
We have previously noted that the Rockaway News case stands for
the proposition that an employer may by contract waive his right to
discipline employees for their refusal to cross a legitimate picket line
at a struck employer's premises. The waiver of these rights by an em-
ployer is for the benefit of individual employees; it does not confer a
corresponding right on a union to insist that its policy against han-
dling struck goods be embodied in the bargaining agreement. What
the Respondents sought in section 2(b) and (c) was the effectuation
of its policy against handling struck goods or equipment. The means,
direct or indirect, by which this end is to be accomplished, is tainted
by the illegality of its object. The more extensive analysis of the
Trial Examiner as to the intention of section 2(b) and (c) is, in our
opinion, wholly correct and we hereby adopt it. We agree with him
that these provisions constitute an agreement that the employers will
cease or refrain from handling, using, transporting, or otherwise
dealing in any of the products of any other employer, or will cease
doing business with any other person where there is a controversy
between such other employer or person or their employees on the one
hand, and a labor union on the other hand.15
5. Article 29(a) of the Local Cartage Agreement and article 47(a)
of the Over-the-Road Agreement read as follows :
The Employer agrees to refrain from using the services of any
person who does not observe the wages, hours and conditions of
employment established by labor unions having jurisdiction over
the type of services performed.
11 See also to the same effect, Amalgamated Lithographers of America , et al . (Lithog-
raphers & Printers National Association, Inc.), 137 NLRB 1663.
ie In addition to the case relied on by the Trial Examiner, Chauffeurs, Teamsters,
Warehousemen and Helpers Local Union No. 135 etc. (Irvin J Cooper et al ), 101 NLRB
1284, the Board has subsequently held that a union's disclaimer of an intent to seek an
object illegal under Section 8(b) (4) is to be construed in the light of what it does See
New York Mailers' Union No 6, International Typographical Union (The Publishers Asso-
ciation of New York City), 136 NLRB 196; Local 1066, International Longshoremen's
Association etc. (Wiggin Terminals, Inc ), 137 NLRB 45; and Bakery Salesmen's Local
Union No. 227 et al. (Associated Grocers, Incorporated), 137 NLRB 851 It requires only
one additional step to find that a "cease doing business" object under Section 8(b) (4) (B)
is the same object under Section 8(e), even though it is cloaked in words rather than
acted out
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondents contend that the subcontracting provisions have
for their purpose the preservation of jobs of employees in the con-
tract unit. We find no merit in this argument since the cited para-
graph dictates to the Employer those persons with whom he shall be
permitted to do business, rather than obliging him to refrain from
contracting out work previously performed by employees in the
bargaining unit. The Board has recently struck down as a violation
of Section 8(e) a clause which provided that in subcontracting out
work, the employer shall give preference to shops either having a
contract with or approved by a particular union.16 The Board pointed
out there that the subcontracting clause in issue in that case was more
than a restriction on subcontracting for the preservation of jobs and
job rights for employees inasmuch as it limited the persons with
whom the employer could do business. Indeed, the subcontracting
clauses in this case are even more restrictive since their prohibition
against subcontracting is absolute, whereas in the St. Louis Trimmers
case, cited above, the union sought only preferential treatment for
those employers with whom it had contracts."
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Truck Drivers
Union Local No. 413, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, and Central States
Drivers Council, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, their officers, agents, repre-
sentatives, successors and assigns, shall:
1. Cease and desist from :
(a) Maintaining, giving effect to, or enforcing article 9, sections
1 and 2, and article 47 (a) of the Over-the-Road Motor Freight Agree-
ment, and article 9, sections 1 and 2 and article 29(a) of the Local
Cartage Agreement, to the extent found unlawful herein.
(b) Entering into, actively maintaining, giving effect to, or enforc-
ing any other contract or agreement, express or implied, whereby any
employer within the territorial jurisdiction of the Central States
Drivers Council ceases or refrains or agrees to cease or refrain from
handling, using, selling, transporting or otherwise dealing in any of
19 District No. 9, International Association of Machinists ( Greater St . Louis Auto-
motive Trimmers , etc.), 134 NLRB 1354 , enfd 315 F . 2d 33 (C.A.D C ).
17 See also Automotive, Petroleum & Allied Industries Employees Union, Local 618
et al (Greater St. Louis Automotive Trimmers and Upholsterers Association, Inc ), 134
NLRB 1363, and Highway Truck Drivers and Helpers Local 107 et al. (E. A. Gallagher &
Sons ), 131 NLRB 925 , enfd. 302 F. 2d 897 (C.A.D C.).
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1487
the products of any other employer or from doing business with any
other person.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at Respondents' business offices and meeting halls copies of
the attached notice marked "Appendix." 18 Copies of said notice, to
be furnished by the Regional Director for the Ninth Region, shall,
after being duly signed by official representatives of the Respondents,
be posted by the Respondents immediately upon receipt thereof and
be maintained by them for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Furnish to the Regional Director for the Ninth Region signed
copies of the aforementioned notice for posting by employers who are
party to either the Over-the-Road Motor Freight or the Local Cartage
Agreements, if the employers agree, in places where notices to em-
ployees are customarily posted. Copies of said notice, to be furnished
by the Regional Director, shall, after being signed by Respondents,
as indicated, be forthwith returned to the Regional Director for dis-
position by him.
(c) Notify the Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
is 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."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS
WHO ARE PARTIES TO EITHER THE CENTRAL STATES AREA LOCAL
CARTAGE OR THE CENTRAL STATES OVER-THE-ROAD MOTOR FREIGHT
AGREEMENTS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT maintain, give effect to, or enforce article 9, sec-
tions 1 and 2, and article 47(a) of the Over-the-Road Motor
Freight Agreement, and article 9, sections 1 and 2 and article
29(a) of the Local Cartage Agreement, to the extent found un-
lawful in the Decision and Order.
WE WILL NOT enter into, actively maintain , give effect to, or ell-
force any other contract or agreement , express or implied , where-
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by any employer within the territorial jurisdiction of the Central
States Drivers Council ceases or refrains or agrees to cease or re-
frain from handling, using, selling, transporting, or otherwise
dealing in any of the products of any other employer, or from
doing business with any other person.
TRUCK DRIVERS UNION LOCAL 413, INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA,
Labor Organization.
Dated------------- --- By-------------------------------------
(Representative ) ( Title)
CENTRAL STATES DRIVERS COUNCIL , INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio,
Telephone No. Dunbar 1-1420, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case, in which all parties were represented and participated by counsel or
other representatives, was heard before Trial Examiner Eugene F. Frey in Columbus,
Ohio, on August 22, 1961, on a consolidated complaint issued June 27, 1961, by the
General Counsel of the National Labor Relations Board, and an answer duly filed
by the Respondents, Truck Drivers Local Union No. 413, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Central
States Drivers Council, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America,' which denied the commission of the unfair
labor practices alleged in the complaint and raised one constitutional defense. The
case was presented by the parties entirely on a stipulated set of facts. All parties
waived oral argument. General Counsel and Respondents have filed briefs which the
Trial Examiner has carefully considered.
On August 14, 1961, the parties executed a settlement agreement, approved by the
Regional Director for the Ninth Region on August 15, 1961, which disposed of the
issues raised by the pleadings in Case No. 9-CC-286. The agreement provided that,
on its approval, Case No. 9-CC-286 should be severed from Case No. 9-CE-5-1-2,
and the complaint in the prior case withdrawn. In accordance with that agreement,
which is in evidence herein, the Trial Examiner granted the motion of General
1In this report, Truck Drivers Local Union 413, IBT, will be called the Local, Central
States Drivers Council , IBT, will be called the Council , and "IBT" will refer to Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1489
Counsel to sever Case No. 9-CC-286 and withdraw the complaint therein. Hence,
the basic issues litigated in the remaining Case No. 9-CE-5-1-2 are as follows:
(1) Whether certain provisions of collective-bargaining agreements executed by
Respondents with certain employers named in the caption, and others, effective
February 1, 1961, amount to "entering into" illegal "hot cargo" agreements within
the meaning and proscription of Section 8(e) of the National Labor Relations Act,
61 Stat. 136 (herein called the Act), which was added to the Act by Section 704(b),
Title VII of the Labor-Management Reporting and Disclosure Act of 1959, Public
Law 86-257, 86th Congress.
(2) Whether Section 8(e) of the Act is unconstitutional.
Upon the pleadings, stipulated facts, and the entire record in the case, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYERS
The Employers named in the caption and others who are employer-members
of associations named in the two agreements described below, are each engaged in the
business of interstate transportation of freight by motor vehicle in the Central States
area,2 and during the past year each has received in excess of $50,000 gross revenue
from such interstate operations. In the aggregrate, all employeis who are parties
to said agreements receive annually gross revenue in excess of $100 million from such
operations. Respondents admit, and I find on these facts, that the Employers are
and have been engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Local and the Council are labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On various dates since March 1, 1961, the Employers named in the caption as
"parties to Central States Area Local Cartage Agreement," and other employers,
individually or as members of employer associations operating within the ter-
ritorial jurisdiction of the Local, entered into a collective-bargaining agreement with
Respondents as the collective-bargaining representative of their employees, entitled
"Central States Area Local Cartage Agreement" (herein called Local Cartage
Agreement).
On various dates since March 1, 1961, the Employers named in the caption as
"parties to the Central States Area Over-the-Road Agreement," and other employers,
individually or as members of employer associations operating within the territorial
jurisdiction of the Local, entered into a collective-bargaining agreement with Re-
spondents as the collective-bargaining representatives of their employees, entitled
"Central States Area Over-the-Road Motor Freight Agreement With Ohio Rider"
(herein called the Over-the-Road Agreement).
Each agreement was effective as of February 1, 1961, and remains in effect until
January 31, 1964, unless sooner terminated as provided therein.
At all times since February 1, 1961, Respondents have required the employer
parties to these agreements to maintain and give effect to article 9 entitled "Protec-
tion of Rights," which is identical in each agreement, and to article 29(a) entitled
"Sub-contracting," of the Local Cartage Agreement, and an identical provision in
article 47(a), entitled "Sub-contracting," of the Over-the-Road Agreement. The
common article 9 reads as follows:
ARTICLE 9- Protection of Rights
Section 1, Picket Line
It shall not be a violation of this Agreement and it shall not be cause for dis-
charge or disciplinary action in the event an employee refuses to enter upon
any property involved in a labor dispute or refuses to go through or work
behind any picket line, including the picket line of Unions party to this Agree-
ment and including picket lines at the Employer's place or places of business.
Section 2, Struck Goods
Recognizing that many individual employees covered by this contract may
have personal convictions against aiding the adversary of other workers, and
2 The Central States area is defined in the agreements as "Michigan , Ohio, Indiana,
Illinois, Wisconsin , Minnesota, Iowa, Missouri , North Dakota, South Dakota, Nebraska,
Kansas, Kentucky, and Huntington and Wheeling, West Virginia, and operations into and
out of all contiguous territory."
1490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognizing the propriety of individual determination by an individual workman
as to whether he shall perform work, labor or service which he deems contrary
to his best interests, the parties recognize and agree that:
(a) It shall not be a violation of this Agreement and it shall not be a
cause for discharge or disciplinary action if any employee refuses to per-
form any service, which, but for the existence of a controversy between a
Labor Union and any other person (whether party to this Agreement or
not), would be performed by the employees of such person.
(b) Likewise, it shall not be a violation of this Agreement and it shall
not be a cause for discharge or disciplinary action if any employee refuses to
handle any goods or equipment transported, interchanged, handled or used
by any carrier or other person, whether a party to this Agreement or not,
at any of whose terminals or places of business there is a controversy
between such carrier, or person, or its employees on the one hand and a
Labor Union on the other hand; and such rights may be exercised where
such goods or equipment are being transported, handled or used by the
originating, interchanging or succeeding carriers or persons, whether parties
to this Agreement or not.
(c) The Employer agrees that it will not cease or refrain from handling,
using, transporting, or otherwise dealing in any of the products of any
other Employer or cease doing business with any other person, or fail in
any obligation imposed by the Motor Carriers' Act or other applicable
law, as a result of individual employees exercising their rights under this
Agreement or under law, but the Employer shall, notwithstanding any other
provision in this Agreement, when necessary, handle, use, transport, or
otherwise deal in such products and continue doing such business by use of
other employees (including management representatives), other carriers,
or by any other method it deems appropriate or proper.
Section 3, Grievances
Within five (5) working days of filing grievance claiming violation of this
Article 9, the parties to this Agreement shall proceed to the final step of the
Grievance Procedure, (Article 8, Sec. 1(c)) without taking any intermediate
steps, any other provisions of this Agreement to the contrary notwithstanding.3
Article 29 of the Local Cartage Agreement reads as follows:
ARTICLE 29-Sub-contracting
(a) The Employer agrees to refrain from using the services of any person
who does not observe the wages, hours and conditions of employment estab-
lished by labor unions having jurisdiction over the type of services performed.
General Counsel contends mainly, that Respondents' entering into, maintenance,
and enforcement of these hot cargo provisions have violated Section 8(e) of the
Act which provides as follows:
(e) 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 con-
tract or agreement entered into heretofore or hereafter containing such an
agreement shall be to such extent unenforcible and void: Provided, That nothing
in this subsection (e) shall apply to an agreement between a labor organization
and an employer in the construction industry relating to the contracting or sub-
contracting of work to be done at the site of the construction, alteration, paint-
ing, or repair of a building, structure, or other work: Provided further, That
for the purposes of this subsection (e) and section 8(b) (4) (B) the terms "any
employer," "any person engaged in commerce or an industry affecting com-
merce", and "any person" when used in relation to the terms "any other producer,
processor, or manufacturer", "any other employer", or "any other person" shall
not include persons in the relation of a jobber, manufacturer, contractor, or
subcontractor working on the goods or premises of the jobber or manufacturer
or performing parts of an integrated process of production in the apparel and
3 For ease of reference, 7 have marked the last three paragraphs of section 2 with the
submarkings (a), (b), and (c), and those paragraphs will be referred to hereafter as
follows: "Paragraph 2(a)" or the "refusal of service" clause, "paragraph 2(b)" or the
"refusal to handle" clause, and "paragraph 2(c)" or the "continued business" clause.
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1491
clothing industry : Provided further, That nothing in this Act shall prohibit the
enforcement of any agreement which is within the foregoing exception.
A. Contentions of the parties and concluding findings
1. The constitutional issue
The constitutional issue raised by Respondents can be disposed of at the
outset. They claim that Section 8(e) of the Act violates the fifth amendment to the
Constitution of the United States because the provisos in the section quoted above,
which exempt bargaining agreements between labor organizations and employers in
the construction and apparel and clothing industries , create unreasonable , irrational,
and discriminatory distinctions , and deprive Respondents of the due process of the
law. In their brief, Respondents state specifically that they consider Section 8(e)
as unconstitutional per se and "as applied ." I do not express any judgment on this
issue because it is well settled, as Respondents admit, that the Board , as an admin-
istrative agency created by the Congress , and the Trial Examiner , cannot rule on
the constitutionality of any portion of the Act, as amended , but must leave such
questions for the courts . I must therefore assume that all parts of the Act as
amended are constitutional . Bluefield Produce and Provision Company, 117 NLRB
1660, 1663 ; Amalgamated Lithographers of America (Ind.) and Local No. 17, etc.
( The Employing Lithographers etc.), 130 NLRB 985.
2. The scope of the clauses
Addressing themselves to the wording of the quoted clauses, Respondents present
several technical arguments to show that they fall outside the scope of Section 8(e).
They say that the provisions , whether considered individually or collectively, do not
constitute an "express" agreement or contract proscribed by the Act. But they
admit that the contracts are express bilateral undertakings of the carriers and Re-
spondents which fall within Section 8(e), and argue therefrom that the issue here
does not require a decision whether the documents involve "implied " contracts or
agreements . However, they admit that interpretation of the language of an "ex-
press" agreement may be required to determine whether it falls within the class of
documents proscribed by Section 8(e). The Board has applied a broad rule of
interpretation in determining whether specific contract clauses fall within the statute.
In Amalgamated Lithographers of America (Ind.) et al. (San Francisco case), 130
NLRB 985, the Board noted that Section 8(e) banned "express or implied " agree-
ments, and held that , in construing clauses, an "implied " agreement within the word-
ing of the statute could be implied from circumstances , general language, or the
conduct of the parties where the intention of the parties is not stated in explicit and
direct words , and that Congress was not concerned with simply outlawing word
formulas in enacting Section 8(e). And see the Board 's additional remarks on this
point in the Miami Post Company case, infra , quoted at length at page 1497 hereafter.
Respondents argue that since Section 8(e) refers only to "products of any other
employer," and does not in terms ban agreements to cease or refrain from perform-
ing "any services ," which terms are used in Section 8(b) (4) dealing with secondary
boycotts , the Board must presume that Congress did not intend Section 8(e) to
reach contracts involving "services." The argument is specious and must fall for
several reasons . Where Section 8(e) bans contracts to cease or refrain from "han-
dling . . . transporting . . . or otherwise dealing in any of the products of another
employer," it clearly refers to and includes the business of common carriers, which
is the performance of services to other employers by transportation (which includes
handling) of their products . At this late date in our transportation industry, it seems
hardly questionable that the transportation and handling of products of business con-
cerns is a "service" to them and the public in general , and that the rendition of such
services is the primary function and business of common carriers . The legislative
history of Section 8(e) makes it clear that one of the basic objectives of the Congress
was to reach and ban the so-called hot cargo agreements which the Teamsters
Union had procured from common carriers , under which the carriers agreed not
to handle or transport, or require their employees to handle or transport , products
of other employers with whom that union had disputes , and which that union had
used to implement its pressures on such "unfair " employers.4 In introducing the
See vol II , Legislative History of the Labor -Management Reporting and Disclosure
Act of 1959 , U.S. Government Printing Office ( 1959 ), at pages 1161 , 1162, 1197, 1242,
1258, 1259 , 1273, 1428, 1432.
681-492-03-vol. 140-95
1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Landrum-Griffin bill (H.R . 8400 ), and comparing its hot cargo ban with similar
provisions in other bills before the Congress , Representative Griffin noted that those
bills banned "contracts whereby the carrier agrees to refrain from transporting cer-
tain products or to provide services to some employer ." 5 Finally, it appears that
the Teamsters Union , with which Respondents are affiliated , in arguing against the
proposed "hot cargo" and "secondary boycott" provisions before the McClellan sub-
committee of the House Committee on Education and Labor , itself considered the
handling of transportation of goods by common carriers as synonymous with per-
formance of a "service." 6
Respondents also contend that Section 8(e) does not cover labor agreements re-
lating to "services" which operate only prospectively , arguing from the use of the
word "cease" in the statutory phrase "cease doing business with any other person"
[emphasis supplied] that this denotes only the cessation of existing or continuing
activity , not future activity , and that this phrase is significantly narrower in scope
than the earlier proscription of the Section 8 (e) against agreements to "cease or
refrain from handling . . . products of any other employer." It also claims that
"any other employer" includes a far smaller class of entities than "any other per-
son." These technical arguments must also be rejected, as they place undue emphasis
on specific words out of context and ignore the basic rule that the scope and reach
of Section 8(e) must be gathered from its contents considered as a whole in the
light of the purpose of Congress as shown in the legislative history, and the over-
riding purpose of the Act itself. Viewed in this fashion, it is clear that Section 8(e)
in terms and in purpose reaches not only agreements whereby an employer con-
tracts ( 1) to "cease and refrain " from "handling . . . or transporting . products
of any other employer," as conduct in which he is presently engaged, and ( 2) "agrees
to cease and refrain" from such work and services for other employers , which con-
templates future cessation of such activities when they occur, but beyond that (3)
it covers agreements of a much broader class , which require him to "cease doing
business with any other person ," which includes not only employers , but other
persons or business entities with which he has been doing business . This is clear
from the fact that the section voids and makes unenforceable "such an agreement" in
"any contract or agreement entered into heretofore or hereafter ." Thus it reaches
existing and continuing conduct under existing agreements , as well as similar con-
duct which may arise under future contracts or agreements.
Examining section 2 , "Struck Goods ," of the contracts in the light of the statutory
terms, I am satisfied and find all of its operative paragraphs fall within the scope and
meaning of Section 8(e), because section 2(a) specifically deals with a refusal to
perform "any service ," section 2 (b) covers a refusal "to handle any goods or equip-
ment transported , interchanged , handled or used by any carrier or other person, .. .
and section 2(c) plainly uses ( though in negative form ) the exact words and phrases
of Section 8(e).
3. The picket line clause
Section 1 , the "picket line" clause , allows employees with impunity to refuse to
enter "any property involved in a labor dispute ," and to refuse to cross or work
behind "any picket line ," including ( 1) those of unions which are parties to the above
agreements , and (2 ) those at the employer's place of business . Since picket lines by
employees at their own employer's place of business normally constitute primary
activity which is protected by Section 13 of the Act, I agree with Respondents that
the clause is lawful to the extent that it allows employees to refuse to enter their
own employer 's premises during a labor dispute with it or cross a picket line law-
fully established there.
To support the legality of the balance of the provision , Respondents argue that
refusal of transportation employees to cross a picket line has always been considered
a legitimate primary activity . However, the cases cited by them, beginning with
International Rice Milling Co. Inc. v. N.L.R .B., 341 U .S. 665 , 671-673, make it clear
only that, in the enactment of Section 8(b)(4) of the Taft-Hartley Act, and the
1959 modifications of that section , Congress did not intend to restrict the traditional
right of unions and their members to engage in primary strikes and other concerted
primary activities and, in the course of such activity , to try to induce individual
employees of neutral employers approaching the picket line at premises of the struck
employer not to cross the picket line or enter the plant. See also Local 761, Inter-
national Union of Electrical, Radio and Machine Workers , AFL-CIO v. N L R B.,
366 U S . 667, 673 , where the Supreme Court held that "picketing which induces
5 105 C"ng Rec 13092, II Legis Hist 1523.
6 II Legis Hist. 1493.
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1493
secondary employees to respect a picket line is not the equivalent of picketing which
has an object of inducing those employees to engage in concerted conduct against
their employer in order to force him to refuse to deal with the struck employer,"
thus recognizing the distinction between legitimate primary activity of striking
employees which has an incidental effect on individual secondary employees at the
place of the primary activity, and illegal persuasion to concerted activity by the
latter which has as its direct target the secondary, neutral employer, with an object
of forcing of that employer to "cease doing business with any other person," and
in fact has that result. Accord: Chauffeurs, Teamsters and Helpers Local Union No.
175, etc. v. N.L.R.B., 294 F. 2d 261 (C.A.D C.).7 However, while employees of
neutral employers may respond to inducements from primary pickets and not cross
the picket line, thereby allying themselves with the primary activity, Respondents
ignore the fact that such conduct exposes them to discipline, including discharge,
by their own, neutral employer, if he still insists that they cross the picket line in
ordinary performance of their duties. Though they may have acted with the under-
standable motive of sympathetic action to help employees of the struck employer,
their refusal to perform the work for which they were hired in direct disregard of
their own employer's orders, is unprotected activity for which they can be discharged,
Robert H. Snow, d/b/a Auto Parts Co., 107 NLRB 242; Redwing Carriers, Inc.,
130 NLRB 1208. It is obviously this possible discipline of secondary employees
which Respondents eliminated when they procured the insertion of the "picket line"
clause in their 1961 contracts. By so doing, they retained for their members em-
ployed by the Employers the right with impunity to refuse to cross picket lines
at or enter the premises of any struck employer, and thereby cause a complete
cessation pro tan to of the normal operations of their employer. In practical effect,
the Employers thereby agreed that they would cease doing business in normal fashion
with struck employers, if and when their employees decide to recognize labor disputes
and picket lines at the premises of such Employers. Therefore, in its scope and prac-
tical effect, the "picket line" clause comes squarely within the interdiction of that
portion of Section 8 (e) which prohibits the entry into and enforcement of any agree-
ment whereby an employer agrees to "cease doing business with any other person."
Respondents argue further, however, that Congress intended to except "picket
line" clauses from the operation of Section 8(e), relying on a remark of Senator
Kennedy, manager of the Senate joint conferees, to the effect that "we have protected
the right of employees of secondary employers, in the case of a primary strike, to
refuse to cross a primary picket line." 8 This contention requires careful con-
sideration because of the efforts of Congress to preserve employees' rights of primary
picketing and other primary activities, while at the same time closing certain loop-
holes in the secondary boycott provisions of the Taft-Hartley Act. Senator Kennedy
made the above remark to the Senate on September 2, 1959, the day he submitted
the joint conference report to it, as part of an informal preliminary explanation of
the report. During debate the next day, he explained to the Senate that its con-
ferees had insisted that any legislation should secure "The right to engage in primary
strikes and primary picketing even though the employees of other employers refused
to cross the picket line. The fact of the matter is that there is some question under
the Landrum-Griffin bill whether employees of another employer could have properly
refused not to cross a picket line in a primary strike. That has been clarified in the
conference report." [Emphasis supplied.] 9 The two remarks are not consistent in
that they denote different objectives: the former indicates a desire to protect a
"refusal" right of secondary employees, while the latter indicates the conferees were
concerned with protecting the legality of primary picketing activity, despite certain
conduct of secondary employees. The true import of both remarks becomes clear
from an examination of the legislative history of the 1959 amendments. While
H.R. 8342 and S. 1555 were being considered by the respective Houses of Congress,
labor organizations strongly opposed Section 707 of S. 1555 (same as Section 8(e)
but without provisos) because it was broad enough to compel truckdrivers and other
4 In Milwaukee Plywood Co, 126 NLRB 650 , the Board dismissed a complaint charging
violation of Section 8(b) (4) (A), holding that advice from a Teamsters local not engaged
in an existing strike conducted by another local to its members that the picket line should
be observed , was not a violation of Section 8(b) (4) (A ), because such advice, given when
solicited by its members , "was not substantially different from the impact of the picket
line itself or responses elicited from the pickets at the struck plant " The Board thus
equated the outside union 's advice to members ( presumably employees of neutral em-
ployers ) with legal picket-line activity.
811 Legis. Hist 1389.
9 II Legis . Hist. 1431, 1432.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to act as strikebreakers by crossing primary picket lines The House
committee sought to allay this fear by putting new "hot cargo agreement" bans in
H.R. 8342 as separate violations by employers under Section 8(a) and by labor
organizations under Section 8(b) of the Act; but in the 8(b) prohibition it inserted
a proviso that-
. . . nothing in this paragraph shall be construed (A) to require any employee
to enter upon the premises of an employer (other than his own employer) where
such employer is engaged in a primary labor dispute, or (B) to invalidate a
collective bargaining agreement which provides that such refusal shall not be
cause for the discharge of such employee.'0
The committee report explained that while the proviso was in the amendment
covering the union unfair labor practice, "its substance is equally applicable to the
employer's contractual undertaking," and observed that "the proviso is limited to
primary activities." The committee also said its amendments clarified the distinction
between primary activities and secondary boycotts. In explaining "primary activities,"
the committee noted that under existing law the Act did not require a truckdriver to
cross a primary picket line, and that pickets might request him not to enter a
strikebound plant, but it also recognized existing law that "the truckdriver's em-
ployer would have the legal right to discharge him, or the employer could agree
that he would not require the driver to enter the strikebound plant." 11 It is clear
that the above-quoted proviso in Section 8(b) would make sure that a driver's
refusal to cross a picket line, and an employer's contractual recognition and safe-
guarding of such conduct by giving up his own right to discharge the employee for
such action, would not be considered a secondary boycott. Some committee members
also claimed the "disclaimer" proviso was designed to make it clear that the "hot
cargo" ban did not "impinge in any way on existing law concerning the crossing, or
not crossing, of primary picket lines by employees " 12
Proponents of stronger legislation pointed out in both Houses that the "disclaimer"
proviso still permitted the Teamsters and other unions to put pressure on employers
with whom they had disputes by embroiling neutral employers in the disputes,
through causing them to refuse to give the primary employers service, or by order-
ing their employees not to perform their regular services to the "unfair" employers 13
When the Landrum-Griffin bill (H.R. 8400) was introduced on July 27 it contained
(1) the "hot cargo" ban of S. 1555, but broadened to include all employers and all
unions without limitation, and (2) in amending the secondary boycott provisions
of the Act, it continued the existing proviso of Section 8(b) (4) of the Taft-Hartley
Act which excepted from the secondary boycott violations "a refusal by any person
to enter upon the premises of any employer (other than his own employer) if the
employees if such employer are engaged in a strike ratified or approved by a repre-
sentative of such employees whom such employer is required to recognize under this
Act," and (3) it did not contain the "disclaimer" or "picket line" proviso in either
its Section 8(b)(4) or 8(e) provisions.14 Labor organizations and proponents of
H.R. 8342 claimed the Landrum-Griffin provisions would compel employees to cross
picket lines and become strikebreakers, and would make it illegal for primary pickets
to request other employees to respect their picket lines.15 In answer, both Houses
were advised of the view that the broad "hot cargo" bans in both H.R. 8400 and
S. 1555 did not affect a secondary employee's right to refuse to go through a primary
picket line, and that H.R. 8400 specifically continued the protection of such refusal
existing in the Taft-Hartley Act, where the primary strike was lawful and approved.
It was also noted that the Teamsters Union was really seeking to legalize "full and
unrestrained leeway" to refuse to cross any picket line, including one set up by
"wildcat strikers" or minority employees whose acts did not have approval of a
majority of employees in a unit.16
After the Landrum-Griffin bill was passed by the House on August 13, 1959, strong
arguments were made in both Houses that its amendments of Section 8(b) (4) as
well as its new "hot cargo" bans, were so broad as to make illegal otherwise legiti-
mate primary picketing activities in the course of which pickets might induce truck-
ers to refuse to cross the picket line, and would thus cast doubt on the legality of all
10 Section 705 (a) (2) of H R 8342 as reported, I Legis. Hist. 775, 756.
n TI Rept No. 741, July 30, 1959 , I Legis Hist 779, 780
12 H Rept. No. 741, I Legis Hist. 838.
13 I Legis. Hist. 838, II Legis. Hist. 1325, 1499
14 Section 705(a) and (b) (1) of H. R. 8400, I Legis. Hist. 682, 683
15 IT Legis. 111st. 1619, 1620, 1652 , 1656, 1689.
16 II Legis. Hist. 1619, 1620.
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1497
lawful primary picket lines which secondary employees refused to cross at the re-
quest of the pickets. The fear apparently was that the success of primary picketing
in this respect might be construed as dragging secondary employers into a dispute
if their employees by their own action respected the picket lines, thus converting a
primary dispute into a secondary boycott.17 There were persuasive arguments that
the bill must be clarified to protect the right of self-respecting union members to
refuse to cross "good faith" or "legal" picket lines, to assure that agreements spe-
cifically protecting that right be validated, and to provide that the amendments deal-
ing with secondary boycotts should not be construed to prohibit "primary strikes and
picketing permitted by existing law." 18
After both Houses met to reconcile their differences, their conferees reported out
on September 2 and 3 the amended bill which later became the Labor-Management
Reporting and Disclosure Act of 1959, with these pertinent changes and omissions:
(1) In Section 8(b)(4), they did not reinstate the proviso to Section 8(b)(4) in
the original H.B. 8342 which would have validated agreements allowing secondary
employees to respect any picket lines, but continued only the limited proviso of the
Taft-Hartley Act which excepted from the secondary boycott ban the limited right
of secondary employees to refuse to enter premises of a struck employer where the
strike was legal and ratified by a union which the employer was required by the Act
to recognize.
(2) In enacting Section 8(e), they limited its operation only with respect to
agreements among closely allied employers in the garment industry and among cer-
tain employers in the construction industry. In writing the exception for the garment
industry, they made it apply specifically as a limitation or exception to the operation
of both Section 8(e) and Section 8(b)(4). As to the construction industry, the
limitation related only to the operation of Section 8(e). There was no repetition in
Section 8 (e) of, or reference therein to, the existing limited proviso in Section
8 (b) (4) mentioned in the preceding paragraph.
The conference report on S. 1555 shows that the conferees treated, amended, and
compromised on Section 8(b)(4) and the new "hot cargo" agreement provisions
separately . As to Section 8(b)(4), besides continuing the present proviso noted
above, the conferees stated they added a proviso "that nothing contained in clause
(B) of this paragraph (4) shall be construed to make unlawful, where not otherwise
unlawful, any primary strike or primary picketing," in order to make it clear that the
changes in Section 8 (b)(4) "do not overrule or qualify the present rules of law
permitting picketing at the site of a primary labor dispute." As to hot cargo agree-
ments, they noted the addition of three specific provisos to the broad wording of
Section 8(e) of H.R. 8400, stating that the proviso regarding the construction in-
dustry was limited in scope and related only to Section 8(e) and did not affect the
law regarding certain agreements about work to be done at a construction site, as
developed under Section 8(b) (4).19 The Senate committee analysis of the new bill
confirms the view that, in writing limitations, Section 8(b)(4) and the new Section
8(e) were considered separately . 20 Individual members of the joint conference
committee also emphasized to the Congress that the conference had agreed on clari-
fication of Section 8(b)(4), only to assure that the "right to engage in lawful pri-
mary strike and picketing" would be protected and not considered a secondary boy-
cott, "even though the employees of other employers refused to cross the picket line";
there was no mention of "primary picketing" or the necessity or desire to protect
it by contract terms, in reporting the scope of specific limitations on the prohibitions
of Section 8(e).21
I conclude from this legislative history, and the provisions of both Section 8(b) (4)
and Section 8(e) as they now stand, that the Congress intended (1) to continue to
protect the right of primary picketers to persuade other workers to respect their
picket lines, and to assure that their success in this would not transform the primary
picket line into an illegal secondary boycott , but (2 ) to leave unchanged the existing
law that secondary employees who yielded to such persuasion and refused to cross
primary picket lines in violation of their own duties and employers' orders, while
not violating the Act in so doing, would still run the risk of discipline or discharge
in thus refusing to carry out such orders, and (3) to insure that the right of sec-
ondary employers to impose such discipline or penalty in efforts to continue their
business with the primary, struck employer could not be swept away by "picket line"
17 II Legis. Hist 1707, 1708
18 II Legis Filet 1313-1315, 1383, 1384.
19 H. Rept No 1147 , on S. 1555, I Legis . Hist 934 , at pages 942-944
20 I Legis Hist 942, at page 966.
21 II Legis . Hist 1437 , 1712 , 1720, 1721 , 1722, 1857
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clauses which could have the effect of curtailing or causing complete cessation of the
business of the secondary employer with the struck employer.
4. The "struck goods" clauses
Considering section 2(a), the "refusal of service " clause, by itself , I am inclined
to agree with Respondents that, in the light of the preamble to section 2 which
emphasizes the individual employee's right of self-determination , the apparent pur-
pose and reach of the clause is to preserve the right of secondary employees to refuse
to handle work or perform services "farmed out" to their employer by a struck
employer, in situations where the "farming out" of such work only during and
because of a labor dispute at the plant of the struck employer makes the secondary
employer an "ally" of the struck employer. This embodies nothing more than the
"farmed-out struck-work ally" doctrine which the Board and courts have sanctioned
and which the Congress clearly intended to preserve.22 As thus construed, paragraph
2(a) appears to fall outside the scope of Section 8(e) and to be lawful 23
Section 2(b), the "refusal to handle" clause, gives contractual immunity from
discipline to employees who refuse to handle any goods or equipment transported or
handled in any fashion by "any carrier or other person" whose place of business is
involved in a labor dispute with any labor organization; and this includes such goods
or equipment while traveling in a chain of any interchanging or succeeding carriers or
persons. When the "picket line" and "refusal to handle" clauses are considered
together, they amount to an agreement by the employer that his employees may with
impunity refuse to transport or otherwise handle or perform services with respect
to goods coming from or destined to premises of any struck carrier or other struck
employer, and are the type of "hot cargo" clauses traditionally included in contracts
by locals of the Teamsters Union, and other labor organizations, and which were
considered by the Board and the courts in the Sand Door and Plywood Co. case; 24
The Humko Co, Inc, 121 NLRB 1414; American Feed Company, 129 NLRB 321,
and 133 NLRB 214; American Iron and Machine Works Company, 115 NLRB 800,
affirmed in part sub nom. General Drivers, Chauffeurs and Helpers, Local 886 et al.
v. N L R.B., 247 F. 2d 71 (C.A.D.C.). See also II Legis. Hist. 1386, 1777, 1799.
Furthermore, insofar as the employer renders himself powerless by these provisions
to compel his employees to handle goods or perform services necessary in the
ordinary course of his business dealings with a struck employer or other person, they
amount to an implied agreement by the employer that he will not handle such
"struck" work, or in other words, that he will cease doing business with the struck
employer, and in that respect they fall within the interdiction of Section 8(e). In
Amalgamated Lithographers of America, et al. (San Francisco), supra, the Board
recently said (130 NLRB 985, 987-988) :
Section 8(e) bans "express or implied" hot cargo agreements. The term
"implied" is used in law as contrasted with "express" when the "intention in re-
gard to the subject matter is not manifested by explicit and direct words, but is
gathered by implication or necessary deduction from the circumstances, the
general language, or the conduct of the parties." When contracting parties have
agreed that if an employer requests an employee to handle struck or nonunion
work, the Union shall have the right to terminate the contract, an ordinary
remedy for a material breach of agreement by the other party to a contract,
and the employer agrees that he will not discharge or discipline an employee
who refuses to handle such work, the ordinary remedy available against a dis-
obedient employee, the conclusion is inescapable, and we find, that the parties in
substance have "impliedly" agreed that the employer will not handle such struck
or nonunion work . Congress was not concerned with simply outlawing
word formulas in Section 8(e). In the light of the hard facts, the circumstance
that the word "agree" is not used, or that a statement is made that no con-
tract express or implied is intended, is meaningless. The statute cannot be
avoided by so easy a means [Emphasis supplied.1
22 General Metals Corporation , 120 NLRB 1227, 1228 , 1229 : Employinq Lithoqraphers
of Greater Miami , Florida, and Miami Post Company , 130 NLRB 968; II Legis. Rist 942,
1007, 1079, 1373, 1383 , 1384, 1386 , 1389 , 1431, 1432, 1681, 1720, 1721, 1810, 1822.
23 This paragraph does not go so far as to immunize employees' refusal to perform serv-
ices customarily done by their employer for the struck employer, which distinguishes it
from one held illegal by the Board in Amalgamated Lithographers of America, et al (San
Francisco ), 130 NLRB 985
24 Local 1976 , United Brotherhood of Carpenters , etc. (Sand Door and Plywood Co ),
113 NLRB 1210, affd 357 U S. 93, 95, 97, 101
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1497
In the companion Miami Post Company case, supra, the Board , in construing similar
clauses, made the same statements and added (130 NLRB 968, at page 976) :
"Moreover, Congress was intent upon outlawing `hot cargo' clauses no matter how
disguised. Probably no language can be explicit enough to reach in advance every
possible subterfuge of resourceful parties. Nevertheless, we believe that in using
the term `implied' in Section 8(e) Congress meant to reach every device which, fairly
considered, is tantamount to an agreement that the contracting employer will not
handle the products of another employer or cease doing business with another per-
son." It should also be noted that, contrary to some of Respondents' arguments
herein, the Teamsters Union when presenting arguments to the Congress against
the "hot cargo" provisions of the Kennedy bill (S. 1555), recognized that clauses of
this type could reasonably be construed as preventing a carrier from doing business
with a struck or "unfair" employer. In this connection, it said (II Legis. Hist.
1943):
. .. The core of any hot cargo or picket line provision is the agreement that
no employee shall be discharged or disciplined for refusing to go through a
picket line or refusing to handle unfair goods as a matter of individual choice.
However, this ordinary picket line clause, which, as I have said, prohibits the
disciplining of employees of a common carrier, certainly may be construed to
be an implied agreement that the carrier will not do business with an employer
who is being picketed, or will not handle or transport goods of another em-
ployer, if such goods have been declared unfair For if a common carrier gives
up its right to compel its employees to go through a picket line, or compel its
employers to handle or transport unfair goods, and if it cannot otherwise dis-
charge its obligations, then certainly it has agreed not to do business with
another employer.
This same result would flow if a common carrier grants permission to its
employees not to cross a picket line. Because of the giving of such permission,
the carrier's failure again to discharge the employees may well be considered
an implied agreement on the carrier's part not to do business with the struck
employer.
Even if the employees of a common carrier were not sent to or through a
picket line, such employees would still be required to break strikes by handling
and transporting the unfair goods at points away from the picket line and away
from the strike-bound plant. Thus nonunion cartage companies, the trucks of
the struck employer, driven by scabs or supervisors, will either transport goods
from the plant to the common carrier's dock or to an agreed upon meeting place
or pick up goods at the dock of union common carriers to take into the plant.
Today, the union truckdriver and dockworker can refuse to assist in these
strikebreaking tactics by refusing to handle such goods away from the strike-
bound plant.
Under this law, of course, it is clear that the law even more directly prohibits
contracts under which common carriers would agree not to transport goods to
or from strike-bound plants or agree not to transport unfair goods or agree not
to interline with nonunion truck companies
The Teamsters' analysis applies equally to the "picket line" clause and further sup-
ports the conclusion that that clause falls within the scope of Section 8(e).
On the above analysis and considerations, I conclude and find that both the
"picket line" and "refusal to handle" clauses of the "struck goods" provisions are
within the scone and interdiction of Section 8(e)
Respondents' main contention is that these provisions differ from the "hot cargo"
clauses heretofore considered by the Board and the courts, because they are re-
moved from the scope of Section 8(e) by section 2(c), the "continued business"
clause, which expressly requires the contracting employer to continue doing business
with strike-bound employers, when his own employees have exercised their "refusal"
rights under section 1 and section 2(b), "by use of other employees (including man-
agement representatives), other carriers, or by any other method it deems appropri-
ate or proper " They argue that, since this provision expressly provides that the
contracting employer "will continue its normal business relationship and affirmatively
waives any other contract clauses which might interfere with the continuation of
such relationships," it precludes any penalty upon such employer for continuing
business with a struck firm, but leaves him "completely free to utilize nonobjecting
emplovees, supervisors, or anyone else for that matter" to carry on such business.
Respondents conclude that the clause thus expressly negates any agreement, which
might otherwise be implied from the preceding clauses, by the employer to "cease
doing business with any other person" as nrohibited by Section 8(e) and precludes
any finding that such agreement exists. They reason further that Section 8(e) was
1498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intended to prohibit only the type of "hot cargo" agreements considered by the
Supreme Court in the Sand Door and Plywood case, supra, and that at most Congress
intended to outlaw "hot cargo" agreements which prohibited union members, "and
which failed to allow supervisors, to handle `hot cargo,' thereby requiring the em-
ployer to cease or refram from handling such goods." Stated another way, Re-
spondents argue that the clauses here can be found to violate Section 8(e) only if
the clear obligation of section 2(c) to continue business is disregarded, and if one
presumes at the outset that all employees of the secondary employer will exercise
their "refusal" rights under the preceding paragraphs, thus barring him from
continuance of his business. It is claimed that the Board cannot indulge in these
presumptions.
I consider these arguments without merit for several reasons. In the first place,
the stipulated record shows that Respondents have at all times required the con-
tracting employers to maintain and give effect to the clauses in question, and
specifically that during a labor dispute between Respondent Local and Patton Ware-
house, Inc., the contracting employers have handled freigh destined for or coming
from that concern by the use of supervisors and management representatives. In
that respect, it is true none of the employers have "ceased doing business" with
that concern, in the sense of "complete cessation." However, the fact that the
secondary employers dealt with Patton during the dispute by using supervisors and
management representatives warrants the inference that none of their regular drivers
or work force handled freight going to or coming from that concern, and that in so
doing they were exercising the rights given them by sections 1 and 2(b) of the
contracts. This is a legitimate inference which the Board can draw from stipulated
facts, particularly the enforcement of section 2(c) which required the employers
to use "other employees including management representatives" to carry on business
with a struck employer "as a result of individual employees exercising their rights
under this Agreement." In addition, we cannot ignore the fact of industrial life
which has been recognized by the Board, the courts, and the Congress, that labor
organizations, including the Teamsters Union and its affiliated locals, and their
members have traditionally followed the policy of refusing to handle or work on
products of nonunion or "unfair" employers, variously called "hot cargo" or "unfair"
or "hot" goods. It is a legitimate inference from this circumstance that the em-
ployees of the employers here followed that traditional policy in the Patton dispute,
for that very policy was recognized as their "right" by the above clauses.25 This
disposes of the "presumption" argument of the Respondents.
The crucial issue is raised by Respondents' own contention that the employer is
required by section 2(c) to "continue its normal business relationships" with a
struck employer. Section 2(c) clearly contemplates that, when secondary employees
refuse, in the normal course of their work, to handle or service the goods or products
of a struck employer, the secondary employer must continue to do business with the
latter with whatever other employees, carriers, or means that he can procure, but
without the use of his regular work force. Does the continuance of dealings with
the struck employer in that fashion amount to a continuance of a "normal business
relationship," so as to preclude any finding that the secondary employer has "ceased
to do business with" the struck employer, within the meaning of Section 8(e)?
The basic purpose of the Act from its inception has been the promotion, main-
tenance, and protection of the "free flow of commerce." The stated purpose and
policy of the Taft-Hartley Act was to "promote the full flow of commerce" by statu-
tory measures designed to "avoid or substantially minimize industrial strife
which interferes with the normal flow of commerce ..." Section 1(b) of Public Law
101, 80th Congress, 61 Stat. 136, etc. The 1959 amendments were enacted in part
to eliminate or prevent improper practices by labor organizations and employers
which "distort and defeat the policies of the Labor Management Relations Act, 1947,
as amended, ... and have the tendency or necessary effect of burdening or obstruct-
ing commerce by (1) impairing the efficiency, safety, or operation of the instrumental-
ities of commerce; (2) occurring in the current of commerce; (3) materially affecting,
restraining, or controlling the flow of raw materials or manufactured or processed
goods into or from the channels of commerce ..." (Section 2(c), Public Law 86-257,
73 Stat. 519). The employers here, as common carriers, are "instrumentalities of
commerce," and the transportation industry of which they are a part is clearly an
"industry affecting commerce " I have found nothing in the legislative history of the
as It is immaterial whether the union members acted individually or collectively, or
without specific order from Respondents See Local 135, International Brotherhood of
Teamsters, etc. (Capital Paper Company, et al.), 117 NLRB 635, at pages 644, 645, and
cases there cited
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1499
1959 Act which specifically indicates that Congress debated the meaning of the
words "doing business" or ascribed to them any special or limited meaning. Hence,
I must assume that Congress used them in the ordinary sense in which they are used
in everyday business practice, as connoting a mercantile operation or occupation in
which a person, firm, or corporation is habitually engaged, especially for livelihood
or gain. In the case of a common carrier they connote the ordinary operation of
his transportation business with drivers and other employees in such number
and of such type and caliber as he deems necessary in his own best judgment for
the most efficient conduct of his business for gain. It is well known in the trans-
portation industry, and the Board has recognized, that the number of drivers and
other related personnel in appropriate transportation units is normally far higher
than the number of supervisory or management personnel 26 Hence, if a common
carrier is compelled by the refusal of his normal work force to handle "hot cargo,"
to use some of his relatively small force of supervisors and management personnel
for the handling of "hot" freight destined for or coming from a struck employer,
it is obvious that this is not his "normal" manner of doing business, and it may
well be that he cannot long continue dealing with the struck employer in that
fashion with normal efficiency, or at a profit. Withdrawal of supervisors or manage-
ment officials from their regular duties to operate trucks and handle freight would
obviously interfere with the normal, efficient supervision of the regular employees
(who would presumably continue their normal duties in servicing of other employers)
and the proper administration of other phases of the business. If the secondary em-
ployer used "other employees" to service the struck employer, he would have to
hire other workers to handle their regular duties, or provide for their performance
in some other manner, in either event with disruption of normal operations and
probable additional cost. He would also lose profits if he farmed out his commit-
ments with the struck employer to "other carriers," who could not be expected to
handle the work without receiving all or most of the service charges 27 Hence, no
matter what expedient allowed by the "continued business" clause the carrier used to
carry on business with the struck employer, the normal, efficient and profitable
operation of his business would be disrupted to that extent. It cannot be assumed
that he would long continue to do business with the struck employer under such
handicaps. Hence, I must conclude that the availability or alternate but subnormal
methods of "doing business" set forth in section 2(c) does not preclude a finding that
the operation of sections 1 and 2(b) and (c) of the 1961 contracts would cause
a common carrier to "cease doing business" in normal fashion with a struck em-
ployer. The Board reached the same conclusion on a similar contention in Chauffeurs,
Teamsters, Warehousemen and Helpers Local Union No. 135 etc. (Irvin J. Cooper,
et al. ), 101 NLRB 1284, in which it found a violation of Section 8(b) (4) (A) of the
Taft-Hartley Act where the union, in the course of a dispute with certain suppliers,
had induced and encouraged employees of common carriers to refuse to handle freight
at premises of their employer, with an object of forcing the carriers to cease doing
business with the suppliers. In reaching its decision, the Board adopted the report
of the Trial Examiner which stated the problem and his conclusion as follows (101
NLRB at pp. 1292, 1293) :
According to the Union, at most what it sought to accomplish was a
change in the method of Supplier-Carrier operations at the Carriers' premises.
The Union predicates this argument on the premise that the phrase "to cease do-
ing business" means to cut off all avenues of operations between primary and
secondary employer and that this required cessation is not met where the Union
provides the Carriers an alternative method of doing business with the Suppliers,
which it claims it did here.
As neutral parties to a dispute between the Union and the Suppliers, the Car-
riers are entitled, within the meaning of Section 8(b) (4) (A) of the Act, to be
free from any interference in the manner they choose to do business with the
Suppliers, where a purpose of such interference is to cause the Carriers to cease
doing business with the Suppliers. I am unaware of any warrant in the
language of the Act, its legislative history, or its policy which might justify
° New York City Omnibus Corporation , 104 NLRB 579, 584.
Z7 Certainly he could not use other common carriers who were parties to the 1961 agree-
ments with Respondents , for the same clauses would operate to prevent such carriers
from doing business with the struck employer. If he resorted to nonunion truckers, who
would be considered as "scab" labor or "substandard" employers by Respondents and
their members, it is problematical how long they would be permitted to cross a union
picket line without retaliation by the pickets and their sympathizers.
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise unlawful interference merely because the Union offers an alternative
method of operations on the Union's own terms. To hold otherwise would
effectively remove this secondary boycott provision from the Act. Nor is it
relevant, in my opinion, that the alternative be equally convenient to the Car-
riers, which in this case it was not. (The record amply supports the charging
parties' claim that "the conditions which the Union seeks to impose upon
motor carriers for the privilege of doing business with the nonunion supply
firms are obviously burdensome conditions which render it impractical in some
cases and impossible in others for the motor carriers to do business with such
supplier firms.")
I find, in any event, that the Union's purpose was not only to breach Carrier-
Supplier operations at the Carrier's premises, but that, by preventing such
operations, it also sought to attain the ultimate object of completely disrupting
business relations between Carriers and nonunion Suppliers. I conclude, there-
fore, that the phrase "to cease doing business" does not require a complete
cessation in all respects and under all circumstances. But even if a complete
rupture in Carrier-Supplier relations be required as an object, I conclude that the
Union had such an object in this case.
I think that these considerations and the conclusions of the Board thereon are equally
applicable to the clauses here,28 and are dispositive of the main contentions of
Respondents.
The claim that a finding of illegality of section 2 would require a complete dis-
regard of the initial wording of section 2(c) which specifically negates and bars any
agreement to "cease doing business with any other person" is likewise without merit,
in the light of the decision in the Miami Post Company case, supra, where the Board,
in stating the scope of "implied" agreements under Section 8(e), said (130 NLRB
968, at page 976)-
No particular words are necessary to establish an implied agreement.
Neither will an express disclaimer necessarily negative the existence of such
an agreement. It is all the circumstances which determine whether, notwith-
standing the attempted disguise of language, an agreement has in fact been
made. [Emphasis supplied.]
I conclude and find that section 2(c), despite the "disclaimer" wording relied on
by Respondents, in its scope and potential operation does not take sections 1 and 2(b)
of the contracts outside the scope of Section 8(e) of the Act, but that the three pro-
visions considered in relation to each other clearly fall within the prohibitions of
that section.
I also conclude that section 3 of article 9, which requires the contracting parties
to resort to the contract grievance procedure for any alleged violations of article 9,
cannot operate to withdraw the article from the interdiction of Section 8(e), because
Section 10(a) of the Act requires that the Board's power to prevent any person
from engaging in any unfair labor practices affecting commerce "shall not be affected
by any other means of adjustment or prevention that has been or may be established
by agreement, law or otherwise." Under this provision the Board has held with
court approval that as a governmental agency it is not bound by agreements of
private parties, and that it will act to protect public rights established and protected
by the Act, even where private parties have resorted to contract procedures to dispose
of issues arising under contracts 29
5. The "subcontracting" clause
The "subcontracting" clause in the agreements clearly provides that the em-
ployer will "refrain from using the services" of persons who do not operate under
"union" conditions. I have already rejected the arguments that use of the words
2 This is the same "realistic" reasoning which the Board followed in holding a "trade
shop" clause illegal in Miami Post Company, supra While the clauses here do not con-
tain a specific penalty (termination of contract for violation by the employer) as in the
cited case, they contain a built-in detriment which can become a real loss tantamount to
a penalty, i e , an enforced continuance of dealings with a struck employer in a strained,
subnormal manner without use of regular employees, which the employer can avoid only
by a complete cessation of dealings with the struck employer Hence, in practical opera-
tion, the clauses would have the same penalizing effect as that in the Miami Post case.
29 Montgomery Ward d Co , Incorporated, 121 NLRB 1552, 1559 (footnote 14) ; Mon-
santo Chemical Company, 97 NLRB 517, 520, enfd 205 F 2d 763 (C A 8) ; Geo Mitrmo &
Sons, 122 NLRB 256, 261 (footnote 11) ; Local Union 929, United Brotherhood of Car-
penters, etc (The Mengel Company et al ), 120 NLRB 1756, 1766 (footnote 11)
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1501
"refrain" and "services" in the "hot cargo" clauses considered above place them
beyond the purview of Section 8(e), and the same conclusion applies to this clause.
Respondents argue that the purpose of the clause is to enable labor organizations to
protect "union conditions" of their members from "ruinous competition of unorgan-
ized industries paying substandard wages" and to prevent the contracting employers
from using the "threat of subcontracting the work to employers paying substandard
wages" as an additional weapon in bargaining to depress wages and working condi-
tions. Respondents thus recognize that this clause deals with and prevents sub-
contracting of work by employers to nonunion or unorganized employers or other
business concerns. Stated otherwise, the employers thereby agree to limit their sub-
contracting of work or services in ,the course of their business to union-approved or
union-organized concerns, and to eliminate nonunion or unorganized firms from their
business dealings, regardless of the effect such elimination may have upon their
business. Respondents argue that the stated purpose of the clause must be equated
with the recognized right of unionized employees to refuse to work on "farmed-out"
or "struck" work in situations where the "ally" doctrine applies.
The legislative history of the 1959 amendments indicates that these arguments,
among others, were repeatedly presented to the Congress during the debates on
the pending amendments, and were rejected by it when it enacted Section 8(e), and
that Congress intended by that section to proscribe agreements which limited em-
ployers in their normal methods of business operation, including subcontracting, and
thereby caused them to cease doing business with any other person, except as
specifically exempted in the section itself.
In the early House debates on H R. 8342 the House was advised by labor organiza-
tions that its hot cargo clause prohibition would, in the transportation industry,
strike a "mortal blow at the long-recognized right of unions to appeal directly to
employers to assist the union in removing sweatshop conditions in an industry by
refusing to deal with unfair, antiunion employers." [Emphasis supplied.] 30 The
Teamsters Union argued that the pending proposals would prevent unions from
making agreements with common carriers that they would use only union-made
truck parts and automotive supplies, or that the work done in their repair shops
would not during the life of the Teamsters contract be subcontracted out to a non-
union shop 31 Similar warnings were voiced by Members of the House opposing the
bill. Thus, the House was well aware that H R. 8342 struck at union practices of
inducing employers by contract to refuse to do business with other employers con-
sidered by unions as antiunion, but only in one industry. To remove this limitation,
among other things, H.R. 8400 (the Landrum-Griffin bill) was introduced on July 24,
1959. It contained in Section 705(b)(1) the broad wording of present Section 8(e)
of the Act without any provisos or limitations. In the debate thereon, the House
was clearly advised of the broad scope of 705(b).32 On August 13, 1959, the
House substituted H.R 8400 for H.R. 8342. The Senate Report on S 1555 (the
Kennedy bill) specifically noted the prevalence in union contracts, particularly those
negotiated by the Teamsters Union, of clauses whereby the employer itself agreed
not to handle goods, materials, or products classified by a union as "hot," "unfair"
or "blacklisted." See S. Rept. 187, page 79, I. Legis. His. 475. While H.R. 8400
and S. 1555 were being considered in joint conference, Congress was advised by
Senator Kennedy and Representative Thompson of the wide difference in coverage
between the hot cargo prohibitions in the bills.33 The Senate conferees finally
procured House acceptance of limitations of the prohibition in H.R. 8400 to exempt
therefrom only contractual restrictions on subcontract arrangements in the garment
industry, and hot cargo agreements in the construction industry.
In the Senate debates on the joint conference report, Senator Morse opposed its
recommendations, emphasizing that Section 8(e) prohibited any provisions in
collective-bargaining contracts which imposed any conditions upon the employer
doing business with another employer. He said that one far-reaching effect of the
House provision was that "it would prevent a union from protecting the bargaining
unit it represents by obtaining an agreement not to subcontract work normally
performed by employees in the unit," and cited as other arrangements which would
be banned "a manufacturing plant which agrees not to subcontract alteration or
repair work," and "an agreement requiring employers to furnish union-made over-
alls and tools" (which would in effect prohibit them from purchasing such items
ao II Legis. Hist 1770.
81 II Legis. Hist. 1493.
sz II Legis Hist. 1543, 1549.
13 II Legis Hist. 1708.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from nonunion subcontractors or suppliers).34 The Landrum-Griffin bill, containing
the present Section 8(e), was adopted by the Senate on September 3, by the House
on September 4, and was signed into law by the President on September 14, 1959.
The fact that Congress mentioned contracting arrangements of certain types in only
two industries in the exceptions it wrote into Section 8(e), and imposed these
limitations on its broad prohibitions only after long debate on those situations,
indicates clearly that it did not intend that any other contracting or subcontracting
arrangements in any other industry should be exempted from the section 35 I must
also assume that, in not broadening the exceptions in Section 8(e) beyond the
wording of its provisos, after hearing the arguments about the broad restrictions
of Section 8(e) upon subcontracting, the Congress concluded that it was acting
to balance and harmonize, to the extent it considered to be in the public interest,
"the dual congressional objectives of preserving the right of labor organizations to
bring pressure to bear on offending employers in primary labor disputes and of
shielding unoffending employers and others from pressures in controversies not
their own." 36 I conclude that the "subcontracting" clauses of the 1961 contracts fall
within the purview of Section 8(e) of the Act.
The Board has recently held that contract provisions substantially similar to those
in the 1961 contracts were proscribed by Section 8(e). In Pilgrim Furniture Com-
pany, Inc., 128 NLRB 910, the Board held that a contract clause whereby the "com-
pany agrees that after notice by the union it will not purchase materials from any
company where a bona fide labor dispute exists to which the Carpenters Union
is a party was proscribed by Section 8(e), and that a contract containing that
clause did not bar an election. In Calorator Manufacturing Corp., 129 NLRB 704,
the Board made a similar ruling on a clause stating that "In the event that the
Employer discontinues any of his manufacturing processes during the life of this
Agreement and sublets this work to another firm, the Employer agrees that in that
event the work will be performed by a firm under contract with an International
Union, if available and comparable in quality."
Having found that (1) sections 1 and 2(b) and (c) and section 3 of article 9,
and the "subcontracting" clauses, in the 1961 contracts fall within the purview of
Section 8(e), that (2) the legislative history of Section 8(e) clearly indicates the
intent of Congress that contract limitations of this type upon business operations
of employers be proscribed, and that Respondents' actual enforcement of sections
1 and 2(b) and (c) of the contracts caused employers to "cease doing business
with another person" within the meaning of Section 8(e), I conclude .and find that
Respondents violated that section by entering into and maintaining in effect the
1961 contracts containing .the clauses aforesaid. Mary Feifer, d/bla American Feed
Company, 133 NLRB 214.
IV. THE REMEDY
Having found that Respondents have violated Section 8(e) of the Act by entering
into contracts whereby the contracting employers agreed to cease or refrain from
handling, using, transporting, or otherwise dealing in products or freight of other
employers or persons, and thus to cease doing business with such other employers or
persons, I shall recommend that they cease and desist from maintaining in effect,
implementing, or renewing article 9 (excepting section 1 insofar as it relates to
picketing at premises of the contracting employer, and the first operative paragraph
of section 2), of each of the 1961 agreements described above and article 29(a) of
the 1961 Local Cartage Agreement and article 47(a) of the 1961 Over-The-Road
Motor Freight Agreement with Ohio Rider.
Since the texts of said agreements and the whole record indicate that it was
Respondents' intent to bind all like employers in a substantial area, I shall also
recommend that Respondents cease and desist from entering into any contract or
agreement, express or implied, with any of the employers who are parties to said
agreements or any other employer, whereby such employer agrees to cease or
refrain from handling, using, transporting, or otherwise dealing in the products or
freight of, or to cease doing business with, any other employer or person. Local
294, International Brotherhood of Teamsters, etc. (Van Transport Lines, Inc.), 131
NLRB 242.
Upon the basis of the foregoing findings of fact, and on the entire record in the
case, I make the following:
34 IT Legis. list. 1428, 1430.
85 Amalgamated Lithographers of America, etc, 130 NLRB 985.
30 N L R B v. Denver Building and Construction Trades Council, et al, 341 U S. 675, 692.
TRUCK DRIVERS UNION LOCAL NO. 413, IBTCWHA 1503
CONCLUSIONS OF LAW
1. Respondent Local and Respondent Council are labor organizations within the
meaning of the Act.
2. The Patton Warehouse, Inc., and the persons and corporations who are parties
to the agreements effective February 1, 1961, and described above, are employers
and persons engaged in commerce and in an industry affecting commerce within
the meaning of Sections 2(2), (6), and (7) and 8(e) of the Act.
3. By entering into, maintaining, and giving effect to contracts with said em-
ployers whereby said employers agreed to cease or refrain from handling, using,
transporting, or otherwise dealing in the products or freight of, or cease doing
business with, any other employer or person, Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(e) of the Act.
4. Said unfair labor practices affect commerce within the meaning of the Act.
[Recommendations omitted from publication.]
O