Warehouse Union Local 6, Etc.

National Labor Relations Board - Board Decisions

Jul 1, 1965

153 N.L.R.B. 1051 (N.L.R.B. 1965)

WAREHOUSE UNION LOCAL 6, ETC. 1051
NOTE.-In the event any of the above-named employees are presently serving in
the Armed Forces of the United States we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
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, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership and activity in Local 695, Interna-
tional Brotherhood of Teamsters, by laying off and refusing to reinstate or other-
wise discriminating against employees because of their union activities.
WE WILL offer Roger Rouse, Carl Wenzel, and Roswell Mundigler immediate
and full reinstatement to their former or substantially equivalent jobs, without
prejudice to their seniority or other rights.
WE WILL pay them the wages they may have lost by reason of the discrimina-
tion against them, less any interim earnings they may have had.
WE WILL pay Sam Lipuma the wages he may have lost by reason of the dis-
crimination against him, less any interim earnings he may have had, for the
period from November 12, 1962, to December 20, 1963.
WAUKESHA LIME AND STONE CO., INCORPORATED,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-In the event any of the above-named employees are presently serving in
the Armed Forces of the United States we will notify them of their right to full rein-
statement upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended, after discharge
from the Armed Forces.
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, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Warehouse Union Local 6, International Longshoremen's and
Warehousemen 's Union and Hershey Chocolate Corporation.
Case No. 2O-CC-442. July 1, 1965
DECISION AND ORDER
On March 8, 1965, Trial Examiner Henry S. Salim issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
153 NLRB No. 86.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sion. Thereafter, the General Counsel and Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs.' The Charg-
ing Party filed a brief in support of the Trial Examiner's Decision.
The National Labor Relations Board 2 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 Trial Examiner's Decision, the exceptions and
briefs , and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders that
Warehouse Union Local 6, International Longshoremen's and Ware-
housemen's Union, its officers, agents, and representatives, shall take
the action set forth in the Trial Examiner's Recommended Order .3
'The General Counsel filed exceptions to the Recommended Order only We find the
General Counsel 's exceptions to be without merit.
2 Member Brown not participating
a Strike paragraphs 1(a) and ( b) of the Recommended Order and substitute therefor
the following corrected paragraphs'
"1 Cease and desist from
"(a) Engaging in, or inducing or encouraging any Individual employed by Encinal
Terminals at its warehouses at San Leandro , Oakland, or Alameda, or by any other per-
son engaged in commerce or in an industry affecting commerce , to engage in, a strike or
refusal in the course of their employment to transport , use, or otherwise handle or work
on goods, commodities , or other materials or to perform any services , where an object
thereof is either to force , require, or compel Encinal terminals or any other person to
cease handling , transporting, or otherwise dealing in the products of and to cease doing
business with Hershey Chocolate Corporation
"(b) Threatening , coercing, or restraining Encinal Terminals, or any other person en-
gaged in commerce or in an industry affecting commerce , where, in either case, an object
thereof is to force or require Encinal Terminals , or any other person, to cease using, han-
dling, or transporting the products of Hershey , or cease doing business with Hershey "
Strike the second paragraph of the notice , attached to the Trial Examiner 's Decision
marked "Appendix A," and substitute the following corrected paragraph
WE WILL NOT threaten , coerce, or restrain Encinal Terminals, or any other person
engaged in commerce or in an industry affecting commerce , where an object thereof is
to force or require Encinal , or any other person , to cease using , handling, or trans-
porting the products of Hershey , or to cease doing business with Hershey.
In addition , the telephone number for Region 20 , appearing at the bottom of the Appen-
dix, is amended to read. Telephone No 556-0335
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by Hershey Chocolate Corporation on June 4, 1964, against
Warehouse Union Local 6, International Longshoremen's and Warehousemen's
Union, herein called the Union or the Respondent, the General Counsel issued a
complaint dated August 6, 1964, which was amended on December 1, 1964,1 alleg-
ing that the Union had violated Section 8(b) (4) (i) and (ii) (B) of the Act by engag-
ing in a proscribed secondary boycott. The answer of Respondent denied the com-
mission of any unfair labor practices.
'Paragraph 9(c) of the complaint was amended by deleting "and continuously there-
after" and inserting in its stead: "until August 18, 1964 "
WAREHOUSE UNION LOCAL 6, ETC. 1053
This proceeding was heard by Trial Examiner Henry S. Salim at San Francisco,
California, on December 1, 2 and 3, 1964.2 Briefs were received from the General
Counsel and the Charging Party on February 9, 1964, but none was received from the
Respondent Union.
Upon the entire record in the case, upon consideration of the arguments of counsel,
including the briefs and citations of cases alleged to be dispositive of the issues in this
proceeding, and from observation of the witnesses, there is made the following:
FINDINGS OF FACT 3
1. THE BUSINESS OF THE COMPANIES INVOLVED
Hershey is engaged in the manufacture , sale, and distribution of chocolate and
related products in Pennsylvania . In the operation of its business , Hershey annually
receives goods and materials from outside the State of Pennsylvania valued at more
than $50,000.
Encinal Terminals , herein called Encinal , operates marine terminals and a public
warehouse in California . In the operation of its business , Encinal annually receives
in excess of $50,000 for services rendered at its marine terminals and warehouse in
connection with the handling of freights and cargo being transported in interstate
and foreign commerce.
It is found that Hershey and Encinal are engaged in commerce within the meaning
of Section 2(6) and (7) of the National Labor Relations Act, as amended (29 U.S.C.
Secs. 151-168 ), herein called the Act, and that it will effectuate the policies of the
Act to assert jurisdiction in this case.
If. THE LABOR ORGANIZATION INVOLVED
Warehouse Union Local 6, International Longshoremen 's and Warehousemen's
Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Hershey filed a charge on June 4, 1964, upon which a complaint issued alleging
that a dispute had arisen between Hershey and the Union over the Union's demand
to represent employees at a manufacturing facility which Hershey was constructing
in Oakdale, California, and over its insistence that employees whom the Union had
represented at Hershey's former San Francisco warehouse be given jobs at the new
facility when it was completed in the latter part of 1965. In support of its demands
upon Hershey, the Union picketed another employer, Encinal Terminals, and induced
its employees, who were also members of the Union, not to handle products which
Hershey was shipping to Encinal for warehousing and distribution. On June 1 and
2, 1964, the Union picketed Encinal's San Leandro public warehouse with signs bear-
ing the legend: ,
Hershey chocolate is running away from San Francisco to Oakdale with this
temporary stopover in San Leandro
I.L.W U . Local 6
At the same time the Union told its members working at Encinal not to handle Her-
shey's products . The employees obeyed these requests.
B. The issue
To this charge that it violated Section 8(b) (4) (i) and (ii) (B), the Union defends
on the principal ground, inter alia, that Encinal is an "ally" of Hershey in that Encinal
2 With respect to Respondent's objections to the Trial Examiner's refusal to grant a con-
tinuance see Paul Biazevwh, et at ., d/b/a m v. Liberator, 136 NLRB 13, footnote 2;
iV.L R B v Taxicab Drivers Union, Local 777, International Bi otherhood of Teamsters
(Crown Metal Mfg. Co ), 340 F. 2d 905 (CA 7), 57 LRR âI 2429, 2432; International
Union, United Automobile. Aircraft, and Agricultural Implement Workers of America,
CIO (Borg-Warner Corp , Marvel-Schebler Products Division) V. N.L.R.B., 231 F. 2d 237,
242 (C A 7)
3 There is no substantial disagreement as to any fact necessary to resolve the issues
in this proceeding The controversy is mainly as to the legal conclusions to be drawn
from the facts
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cooperated with Hershey, "a struck employer," by doing the struck employer's work
so that Encinal is no longer disinterested in the labor dispute thereby forfeiting its
privilege as a neutral and, therefore, the Union's inducement of Encinal's employees
not to handle Hershey's products was primary and lawful.
C. The testimony
Hershey had leased space for over 20 years in a San Francisco building where it
maintained a warehouse for the handling of its products which were sent to Cali-
fornia from its Hershey, Pennsylvania, plant. This lease was due to expire on
July 20, 1964, but on August 20, 1963, it was extended to January 20, 1965, with the
right to cancel on 60 days' notice. The lessor, however, did not charge Hershey for
the extension, as Hershey vacated the premises on April 17, 1964, under circum-
stances which are explained below.
In the operation of its San Francisco warehouse, Hershey employed six ware-
housemen who were members of and represented by the Respondent Union. The
working conditions of these employees were fixed by a collective-bargaining agree-
ment, negotiated with the Union by the Distributors Association, an association of
employers in the Northern California area which was Hershey's collective-bargaining
agent in dealings with the Respondent Union The last contract between the Dis-
tributors Association and the Union, to which Hershey was a party, was effective
from June 30, 1961, through May 31, 1964.
In April 1963, Hershey decided to construct a manufacturing and warehousing facil-
ity at Oakdale, California, which is approximately 100 miles from San Francisco and
on July 20, 1963, construction was commenced .4 By letter dated December 30, 1963,
Hershey notified Distributors Association, its bargaining agent, that because of "vari-
ous business reasons" it had decided to discontinue its San Francisco warehouse and
"go to public warehousing" and that it was resigning from the Association as of
April 30, 1964. Hershey also requested the Association to notify the Union of its
resignation which it did on January 7, 1964.
In the meantime, Hershey had begun to explore the possibilities of storing its
products in a public warehouse and on February 13, 1964, it entered into a lease with
Encinal Terminals for the lease of space in its San Leandro warehouse for the
warehousing of its products.
On the same day that the Union was notified of Hershey's discontinuance of its
San Francisco warehouse, the Union wrote a letter to Hershey requesting severance
pay for its six members who were employed by Hershey's San Francisco warehouse.
By letter dated January 15, 1964, Hershey agreed to severance pay for these employ-
ees "even though our collective bargaining agreement has no provision with respect
to severance pay." 5 On January 27, the Union wrote Hershey stating that they had
learned of the plant Hershey was going to erect in Oakdale and requested for the
first time that the employees in its San Francisco warehouse be given preference in
hiring at the new plant in Oakdale. On February 17 the Union sent a telegram to
Hershey again requesting preferential hiring for the six employees when its Oakdale
plant became operative. On March 2 the Union requested a reply to its telegram to
which Hershey replied on March 6 that it had never received it c With respect to the
Union's request for preferential hiring, Hershey wrote that the contemplated schedule
for starting production at its prospective Oakdale plant "is a long way off," so that it
was unable to extend preferential hiring rights to the San Francisco warehouse
employees because it could not estimate its employment requirements and recruitment
plans.
On April 10, Duarte, the Union's president, while Hershey was in the midst of
moving into the Encinal warehouse, telephoned W. E. Schiller, Hershey's vice presi-
dent, and, in addition to preferential hiring, told him that if the Company did not
recognize the Union as bargaining representative of all the warehouse employees who
would be hired when the Oakdale plant went into operation, "he would involve us all
through Local 6, from the unloading of beans at the dock, all through the shipment
of finished goods to customers." "At that point," testified Schiller, "I knew that there
was trouble brewing." When asked if Encinal was advised of this threat, Schiller
replied in the negative, stating: "It was none of Encinal's business. It was between
Hershey and Local 6...."
4 When completed, Oakdale will service 13 States whereas the leased San Francisco
warehouse served only the Northern California area.
5 The employees received their severance pay on April 17
6It is acknowledged by the Union that this telegram was not received by Hershey.
Western Union's explanation is that the "message failed in transmission." General
Counsel's Exhibit No. 10(a).
WAREHOUSE UNION LOCAL 6, ETC. 1055
On the same day, April 10, the Union wrote that "morally and legally" it is entitled
both to be recognized as the bargaining representative of those warehousemen to be
hired when the Oakdale plant is completed and that its member employees at the
,San Francisco warehouse also should be accorded preference in hiring at Hershey's
Oakdale plant.? On April 17 Hershey replied that it was referring the matter to its
legal counsel for advice and guidance.
On April 22 the Union wrote it was "disturbed" by Hershey's delay and "it might
be necessary to take economic action soon" and it was the Union's position that
Hershey's purported withdrawal from the Distributor's Association as of April 30 was
ineffective and that Hershey "continues to be under contract with [the Union] until
May 31, 1964," 8 even though Hershey had closed its San Francisco warehouse on
April 17, 1964.
On April 24 Hershey notified the Union that Attorney Hoyt of Oakland, California,
had been retained as counsel. On May 22 Attorney Hoyt wrote to the Union's
attorney, stating, inter alia, that Hershey was unable to recognize the Union as bar-
gaining agent for the Oakdale plant as it was not yet in production, no warehouse
,employees had been hired, and, furthermore, it would he a violation of the National
Labor Relations Act to accord the Union recognition. The letter further states that
in confirming its prior position with respect to the illegality of recognition and prefer-
ential hiring "the company is mindful of the union's several threats of economic
action made directly to . . . the [Hershey] company and . . . Encinal Terminals...."
Beginning on April 6, Hershey began moving into the Encinal warehouse (where
it had leased space on February 13) and the move was completed on April 17, 1964.
It should be noted at this point in the chronology of events that Encinal's warehouse
-employees are represented by the Respondent Union and that the multiemployer
bargaining group, the Distributors Association, represented both Hershey and Encinal
in negotiating and executing the same contract with the Union to which Hershey
was a party until its withdrawal from the Distributors Association on April 30, 1964.
When Hershey transferred to Encinal's warehouse, the lease was for an indefinite
period of time as Hershey had not determined whether it might continue to use public
warehousing in the San Francisco area even after the completion of its Oakdale plant.
In fact, no decision had been made as of the time of the hearing.
On May 26, 1964, approximately 5 weeks after Hershey had completed its move to
the Encinal warehouse, Duarte, president of the Respondent Union, told Delsol and
Escheagary, officials of Encinal, that there could be "some labor trouble" with
respect to the Hershey products that were stored in the Encinal warehouse. Delsol's
testimony continues as follows: "As best as I can remember," he said, "there was a
-dispute with Hershey over the question of whether or not Hershey was a runaway
-shop and that he wasn't sure what the men might decide to do about it, whether they
would work the Hershey [goods] or not. I told him that I didn't want to get involved
in a dispute between myself and Hershey, I was interested in keeping the warehouse
working." This was the first time Encinal learned there was a dispute between
Hershey and the Union. Delsol also testified that Duarte "indicated his belief [that]
this dispute was with Hershey, not with Encinal...."
On June 1 and 2, a little less than 2 months after Hershey's move to Encinal and
4 months after the Union learned Hershey was moving to Encinal, pickets appeared
at Encinal's warehouse in San Leandro .9 The placards carried by the pickets bore
the following legend:
Hershey Chocolate is running
away from San Francisco to
Oakdale with this temporary stop-
over in San Leandro
ILWU, Local 6
Escheagary, an Encinal official, asked Blasquez, a union business agent, and Munoz,
,the Union's steward at the Encinal warehouse, the reason for the picketing and what
was the trouble. Blasquez replied that there was a possibility Encinal's employees
might not handle the Hershey's products that were stored in the warehouse. They
7 The Respondent Union has not been certified as the representative of Oakdale employees
in accordance with the provisions of Section 9 of the Act.
e As noted previously, the multiemployer bargaining group's contract with the Union
,expired on May 31, 1964.
9
On the first day, one of the two pickets was a business agent of the Union and the
other picket was not identified but he was not an Encinal employee The second day both
pickets were not known to Encinal's officials The picketing on both occasions lasted
less than 30 minutes.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then proceeded into the warehouse and Blasquez spoke to the employees out of
Escheagary's presence and hearing, whereupon the employees told Escheagary they
would handle Hershey products "under protest."
On June 2, the following day, when Escheagary arrived at the warehouse at 8 a.m.,
it was being picketed by two men with the same placards and Encinal's employees
were outside the warehouse not working. He again spoke with Blasquez, the Union's
business agent, who told Escheagary that Encinal's employees would refuse to handle
Hershey's products.l° Delsol, Encinal's director of operations, then discussed the
walkout of the employees with Blasquez and it was agreed they would return to work
but that they would not handle any of Hershey's products. Blasquez then ordered
the employees to return to work, which they did the same day, but none of Hershey's
products were shipped from Encinal's warehouse until after August 18, 1964.11
On June 19 a meeting was, held in Attorney Hoyt's office (counsel for Hershey)
which was attended by the Union's officials and their attorney as well as Encinal
Official Delsol and his attorney. The Union again insisted that the only way to settle
the Hershey matter was for Hershey to agree to employ the six terminated San
Francisco warehousemen at Oakdale and to recognize the Union as the bargaining
agent for all warehousemen who would be hired when the Oakdale plant was com-
pleted in late 1965. Nothing was agreed upon at this meeting.
Encinal did agree, however, on its own initiative, in the latter part of July, to
employ three of the six San Francisco warehousemen terminated by Hershey in order
to resolve the refusal of the Union to handle Hershey products. However, the Union
would not agree to this proposal.12
On June 3, 4, 5, 8, 9, 10, 11, and 14 and August 10, 11, and 12, both Delsol and
Escheagary, Encinal officials, repeatedly requested the approximately 20 warehouse
employees of Encinal and their union steward 13 to handle Hershey's products, but
they refused.14
On August 1 a hearing was held in the United States District Court for the North-
ern District of California (Civil No. 42599) and on August 7 the court issued a tem-
porary injunction against the Union and its members, who were employed at Encinal,
from picketing the warehouse, engaging in a strike or refusal to handle Hershey
products or threatening Encinal employees if they should handle Hershey products,
and ordering the Union to notify its members employed by Encinal that they are free
to handle Hershey products. In the meantime, much of Hershey's products stored
at Encinal's warehouse was rendered unfit for consumption and was disposed of at
a total loss.
On August 10 Escheagary read the court's injunction to the employees and Union
Steward Munoz and told them that the court had ordered them to handle Hershey
products but Munoz refused stating George Valter, the Union's secretary-treasurer,
had told him "that this problem was still in court."
10 Respondent's counsel admits the Union exerted pressure on Encinal's employees not
to handle Hershey's products prior to August 12. See Ablon Poultry & Egg Company,
138 NLRB 827, footnote 1
"In addition to Hershey, Encinal warehouses and handles the goods and products of
more than 50 other companies.
12 This proposal was made originally to Heide, a business agent of the Union, and
Duarte, the Union's president, both of whom were noncommittal. Later when Encinal
called the union hiring hall for three warehousemen, the order was filled but the workers
who were dispatched (none of whom were the six terminated Hershey men) refused to
handle Hershey products.
18 The union steward, when asked if he had any word from the Union to resume work,
stated: "The orders [are] the same" "A union steward usually has broad general
authority with relation to the union members at the site at which the steward operates.
One of the typical functions that he performs is to serve as a channel of communication
between the union and its members. Where, as in the present case, there is no evidence
of the steward's duties, the Board infers that he possesses the usual authority of a union
steward if its existence is not expressly disputed " Local 1016, United Brotherhood of
Carpenters d Joiners of America, AFL-CIO; et at (Booher Lumber Co., Inc ), 117 NLRB
1739, 1746.
14 When the employees were asked individually by Encinal officials to handle Hershey
products, some of the replies were "No, the Union's orders won't let me" ; "It is between
you and the Union" , "You'll have to talk to the Union about it"; "No, take it up with
the Union" , "I can't do it until the Union 0 Id's it" , and "I can't do it. Discuss it with
the Union."
WAREHOUSE UNION LOCAL 6, ETC. 1057
On August 11 Delsol, another Encinal official, again read the court's injunction and
requested Munoz to have the employees handle Hershey products but again he
refused. Delsol then directed his request to an employee by the name of Noble but
he refused also, giving as his reason, "The union has not yet told them to fill the
order." 15
On August 12 Attorney Grossman, counsel for the Union, came to the Encinal
warehouse, assembled the employees, notified them of the court's injunction, and then
proceeded to read a prepared statement to them which, among other things, stated:
. the union is not even suggesting to you what you should or should not do on
the handling of Hershey products.
However, we do want you to understand that if you act on your own, without
any kind of pressure from the Union, you have the legal right to refuse to handle
Hershey products.... You may wonder whether, if you refuse to handle these
products on your own, the union will back you up and defend you. The answer
is, "We will." ... You have the complete right to refuse to handle these prod-
ucts if your refusal is completely voluntary and is not based upon any pressure
from the Union, or fear on your part that you might be penalized.
The complete text of this statement, which was first read to the employees by Attorney
Grossman and then posted on Encinal's bulletin board, is attached to this Decision
as Appendix B. After Attorney Grossman finished reading the statement, Delsol
asked the employees to handle Hershey's products but they refused again.
The employees continued to refuse to handle Hershey's products until August 18,
when the Respondent Union again was hailed into the Federal district court and the
judge ordered the Union's attorney to notify forthwith its members to handle
Hershey's products or be held in contempt. The Union, the same day, August 18,
posted the court's order on Encinal's bulletin board The employees complied with
the court's order forthwith and have been handling Hershey's products since that date.
D. Contentions of the parties
The General Counsel contends that the Respondent Union, by picketing and induc-
ing Encinal's employees, who are members of said Union, not to handle Hershey's
products which were stored in Encinal's warehouse, thereby unlawfully sought to
force Encinal to cease doing business with Hershey and thus violated Section 8(b) (4)
(i) and (ii) (B) of the Act.
In defense , the Union asserts that Encinal had undertaken to perform Hershey's
warehousing operations when it terminated its lease for its San Francisco warehouse
and thereby became Hershey's "ally" in the dispute between Hershey and the Union.
Accordingly, the Union contends that Encinal forfeited its neutral status and, like
Hershey, was a primary employer in the dispute with the Union and was not shielded
by the Act from the Union's strike action against it. Evidently, the Respondent
Union regards Encinal's warehousing operations for Hershey as work "farmed out"
to it as it claims that Hershey connived to rid itself of the Union and, in effectuating
this alleged purpose, Hershey deceived its San Francisco warehouse employees by
promising them jobs when the Oakdale plant went into operation and so lulled them
into not striking.
Hershey, on the other hand, claims it had been evaluating its San Francisco ware-
house operation for some years and determined , not only from the standpoint of
flexibility but also economically, that by closing its San Francisco warehouse and
leasing space in a public warehouse, it could thereby effectuate a considerable savings
in the cost of its warehousing operation until such time as it decided whether to ware-
house its products at Oakdale when it was completed or continue to rent space in a
public warehouse in the San Francisco area.
E. Discussion
Section 8(b)(4) of the Act, 29 U.S.C. Section 158(b)(4), as amended by the
Labor Management Reporting and Disclosure Act of 1959, 29 U.S.C. (Supp. IV,
1963) Sec 158(b)(4), provides in relevant part that it shall be an unfair labor
practice for a labor organization or its agents
(4) (i) to engage in, or to induce or encourage any individual employed by
any person engaged in commerce or in an industry affecting commerce to
engage in, a strike or a refusal in the course of his employment to ... perform
11 Similar refusals and reasons were given by employees Schultz, Fernandez , Bilich, and
other unidentified warehousemen.
7 9 6-0 2 7- 6 6-v o f 15 3-6 8
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any services; or (ii) to threaten, coerce, or restrain any person engaged in com-
merce or in an industry affecting commerce, where in either case an object
thereof is:
(B) forcing or requiring any person . . to cease doing business with any
other employer to recognize or bargain with a labor organization as the repre-
sentative of his employees unless such labor organization has been certified as
the representative of such employees under the provisions of section 9:... .
This section proscribes, as did the corresponding provisions of the 1947 Act, the
implication of neutral employers in labor disputes not their own where an object is
to force the cessation of business relations between the neutral employer and any
other person.'6
Although Section 8(b)(4) defines the prohibited activity without using the term
"secondary activity," the legislative history of this section, as originally enacted in
1947, makes it abundantly clear that secondary boycotts are an unfair labor practice.'?
Senator Taft in discussing this section stated •
This provision makes it unlawful to resort to a secondary boycott to injure the
business of a third person who is wholly unconcerned in the disagreement
between an employer and his employees.'8
During the course of debate, Senator Taft also stated.
The secondary boycott ban . . is not intended to apply to a case where [the
secondary employer] is, in effect, in cahoots with or acting as a part of the
primary employer . . . where the secondary employer is so closely allied to the
primary employer as to amount to an alter ego situation or an employer rela-
tionship. The spirit of the Act is not intended to protect a man who is cooperat-
ing with a primary employer and taking his work and doing the work which he
is unable to do because of a strike.10
Although Congress by enacting the 1959 amendments did not effect any significant
change in the unlawful objectives proscribed by the secondary boycott provisions of
the Act, it did substantially broaden the scope of the prohibition against conduct
aimed at achieving these objectives. Thus, in subparagraph (i) there is now contained
a specific prohibition against inducement of an individual employee to stop work.
This is in contrast to the 1947 provision, which only prohibited inducement of
"employees" to engage in a "concerted refusal" to perform work. The Senate-House
conferees, in explaining this change, stated that its purpose was to close the "loop-
hole which permitted secondary boycott[s] by inducing employees individually (rather
than in concert)." 20
A second major "loophole" in the Act that Congress undertook to close by the
1959 amendments was that which permitted a union to effect a secondary boycott by
bringing pressure to bear directly upon a neutral employer instead of through the
inducement of his employees to engage in work stoppages. In effecting this change,
Congress introduced a new provision, contained in subparagraph (ii), making it
unlawful for a union to threaten, coerce, or restrain "any person" for the purpose of
achieving either of the proscribed secondary objectives. The legislative history of
this provision discloses that Congress intended the term "any person" to include
employers or others acting in their behalf.21 The history of the provision further
' NL.R.B. v. Denver Building and Construction Trades Council, et al. (Gould &
Preisner), 341 U.S. 675, 692. See also N.L.R.B. v. Laundry, Linen Supply & Dry Clean-
ing Drivers, Local 928 (Southern Service Co ), 262 F. 2d 617, 619 (CA 9).
17 93 Cong. Rec. 3953, 4155, 4156, 4323, 7683, 7969. For additional material on con-
gressional intent, see House Conference Report, No. 510 on H.R. 3020, 80th Cong., 1st
sess pp. 43, 44, and N.L R.B. v. Denver Building and Construction Trades Council, et al,
341 U.S. 675, 686 ; Douds v. Metropolitan Federation of Architects, Engineers, Chemists
and Technicians, Local 231 (Pro)ect Engineering Company), 75 F Supp. 672 at 675,
676 (D C.N.Y.).
Is 93 Cong. Rec. 4323.
10 95 Cong. Rec. 8709.
2D II Leg. Hist. 1454, 1712; and see analysis by Representative Griffin, a cosponsor of
the 1959 amendments and one of the House Conferees, IT Leg Hist. 1523(1), 1568(2)
See Servette, Inc. v. N.L.R B., 377 U.S 46, 54, and N.L.R.B. v. Local 294, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Van Trans-
port Lines, Inc.), 298 F. 2d 105 (C.A. 2).
2111 Leg. Hist. 1454, 1712; see II Leg Hist. 1523(1), 1707(2, 3).
WAREHOUSE UNION LOCAL 6, ETC. 1059
shows that by the use of the phrase "threaten , coerce, or restrain ," Congress intended,
first, to foreclose threats made to neutral employers of "labor trouble or other conse-
quences" 22 and, second , to prohibit the carrying out of such threats by means of a
refusal to handle goods , "picketing ," 23 or a "strike or other economic retaliation." 24
In enacting the 1959 amendments to the Act, Congress also significantly added the
following proviso to Section 8(b)(4) (B):
Provided, That nothing contained in this clause ( B) shall be construed to make
unlawful, where not otherwise unlawful, any primary strike or primary picketing:
The legislative history of this proviso reveals that the recognition thus given to the
lawfulness of primary activity was meant to leave undisturbed the basic distinction
between lawful primary activity and unlawful secondary activity that has been estab-
lished by the decisions under the 1947 Act.25 The House Conference report, refer-
ring to the proviso (H. Rept. 1147 , 86th Cong ., 1st less., p . 38, I Leg. Hist. 942),
states that it "does not eliminate , restrict , or modify the limitation on picketing at the
site of a primary labor dispute that are in existing law" citing as examples , inter alia,
N.L.R.B. v. Denver Building and Construction Trades Council, et al. (Gould &
Preisner), 341 U.S 675; Sailors' Union of the Pacific, AFL (Moore Dry Dock Com-
pany), 92 NLRB 547.
It would appear , therefore , that the basic purpose of Section 8(b) (4) in condemn-
ing secondary boycotts , strikes, and pressures is to prohibit unions from invoking
neutral employers in a labor dispute in order to aid the union to achieve proscribed
objectives , while at the same time recognizing the right of a labor organization to con-
tinue to pursue traditional primary strike activity directed against the employer with
whom it is involved in a direct labor dispute. Giving effect to these dual congres-
sional objectives , is, indeed , in many situations , most difficult of accomplishment.
The Supreme Court in interpreting Section 8 (b)(4) has made mutual concessions to
these dual objectives by recognizing that in order to reconcile what appears to be
inconsistent purposes that an adjustment must be made to accommodate "the dual
congressional objectives of preserving the right of labor organizations to bring pres-
sures on offending employers in primary labor disputes and of shielding unoffending
employers and others from pressures in controversies not their own." 26
However, picketing the premises of the secondary employer who is not involved
in the labor dispute or bringing pressure to bear on his employees at his premises to
induce them to refuse to perform services is a violation of Section 8(b) (4).27 As was
said by the Court of Appeals of the Fifth Circuit: 28
Congress has forbidden the use of the picket against the secondary employer
to induce or encourage secondary employees to strike or refuse to perform
services where an object is to force or require the secondary employer to cease
doing business with the primary employer. That is a declaration of a positive
policy [footnote omitted] which history records reflected great public dissatisfac-
tion with the hapless predicament of the secondary employer caught in the
2111 Leg. Hist. 1568(2).
23 III Leg Hist 1615(2) ; and see II Leg. Hist 1556, 1568, 1620(3).
"III Leg. Hist. 1523(1), 1581(1). NL.R.B. v Plumbers Unlon of Nassau County,
Local 457, United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO (Bomat Plumbing & Heat-
ing), 299 F 2d 497 (CA. 2) ; N.L.R B. v. Local 294, International Brotherhood of Team-
sters, etc., 298 F. 2d 105, 107-108 (C A 2) ; N.L R B. v. Highway Truckdrivers and Help-
ers, Local No 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Kiss & Co ), 300 F. 2d 317 (CA. 3) ; N L R.B. v. International
Hod Carriers, Building and Common Laborers' Union of America, Local No. 1140, AFL-
010 (Gilmore Construction Co.), 285 F. 2d 397, 400 (CA 8), cert. denied 366 U S. 903.
u Oil Workers International Union, Local Union 346 010 (Pure Oil Company), 84
NLRB 315.
25N L.R B. v Denver Building and Construction Trades Council, at al. (Gould &
Preisner), 341 U S 675, 692.
nlnternational Union of Operating Engineers, Local 12 (Crook Company), 115 NLRB
23, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL, Local No.
88 (Swift and Company), 113 NLRB 275.
^ Superior Derrick Corp. v N L R B., 273 F. 2d 891, cert. denied 364 U S. 816. See
Truck Drivers and Helpers Local Union 728 of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Campbell Coal Co ) v.
N.L R B., 249 F. 2d 512 (C A.D.C ), cert. denied 355 U S 958.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
middle If any object of the picketing is to subject the secondary employer to.
forbidden pressure then the picketing is illegal [citations omitted]. It need not
be the sole or even main purpose.
When it comes to applying these principles, however, the distinction between pri-
mary and secondary activity is not an easy one to draw. In a decision that has no,
majority opinion, a three-judge panel of the U.S. Court of Appeals for the Second
Circuit reversed a split decision by the Board and held that the union engaged irt
unlawful secondary boycott activity when it picketed a gate to a railroad right-of-way
that served a struck plant. The right-of-way was owned by the railroad; it was
enclosed by a chain fence; and employees of the plant were not permitted to use the
gate and right-of-way to enter the plant.29
One judge wrote an extensive opinion supporting his conclusion that the picket-
ing was unlawful. Another-Judge Swan-concurred in the result. A third judge
dissented, contending that the picketing was lawful primary activity
If the language of the Act is read literally, the first judge observed, there would
be no question as to the violation in this case. But to accommodate an apparent
conflict between the literal language and the congressional purpose, the Board and
the courts have evolved the "primary-secondary activity" distinctions. The line that
has been drawn, he adds, has been uncertain and wavering , involving distinctions
"more nice than obvious." But in the numerous decisions involving the distinction
between primary and secondary activity, he stated, these basic principles have been
established:
The gravamen of any complaint under the secondary boycott prohibition is the
union 's pursuit of a forbidden objective.
The legitimate objective of primary strike or picketing activity is to publicize the
dispute among the employees of the primary employer
The involvement of the employees of neutral employers is permissible only if it
is merely incidental to the pursuit of a legitimate primary objective.
The picketing should be conducted in such a manner and at such a place as to
minimize its impact on neutral employees insofar as this can be done without
substantially impairing the effectiveness of the picketing in reaching the primary
employees.
Applying these principles to the case before him, the judge found that the union
was not furthering its legitimate objective of publicizing its dispute to the plant's
employees . In picketing the right -of-way, he states , the union 's manifest and sole
objective was to induce or to encourage railroad employees or the railroad to refuse
to handle the plant's goods. Such results, although permissible when merely inci-
dental to the pursuit of a legitimate objective, involved no such redeeming feature
in this case.
In the view of the dissenting judge, the legitimate objectives of picketing include
publicizing a dispute to employees of neutral employers who are performing part of
the everyday operations of the struck employer. Since the picketing in this case had
that objective and there was no other place the union could conduct such picketing,
he states , there was no violation of the Act.
The Supreme Court reversed the court's decision, holding that although the union's
objectives and activities were literally within the Act's definition of secondary activi-
ties, the picketing was nevertheless within the area of primary picketing protected by
the proviso to Section 8(b) (4) (B ) which provides that- ". . . nothing contained in
this clause ( B) shall be construed to make unlawful , where not otherwise unlawful,
any primary strike or primary picketing;" 30
There are, however, exceptions to the concepts stated above with respect to sec-
ondary strike activity. One of them is the "ally" doctrine which is the principal
defense of the Respondent . 31 The Board applies two tests in ascertaining the applica-
bility of the ally doctrine. The first test is whether the secondary employer is an
ally of the struck employer to the extent that be cooperates with the struck employer
by doing the struck employer's work so that he is no longer disinterested or neutral
in the labor dispute, thereby forfeiting his privilege as a neutral. In other words,
where the work being performed by the secondary employer is work which, but for
the union's dispute, could have been done by the primary employer's employees."
^ Carrier Corp. v. N L.R B , 311 P. 2d 135 (C A. 2), reversing 132 NLRB 127
30 Sub nom . United Steelworkers of America, AFL-CIO v N.L R B , 370 U S. 492
31 Respondent 's answer alleges that Encmal terminals is an ally of Hershey and its
handling of Hershey products " constitutes the doing of struck work "
32 N.L R B. v Milk Drivers and Dairy Employees , Local Union No. 584, International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Old
Dutch Farms , Inc.), 341 P 2d 29 (C A. 2), 58 LRRM 2290, 2292.
WAREHOUSE UNION LOCAL 6, ETC. 1061
The second test in determining whether an ally relationship exists was enunciated
by the Board in United Steelworkers of America, AFL-CIO (Tennessee Coal &
Iron Division of the United States Steel Coiporation), 127 NLRB 823, 824, enfd.
294 F 2d 256 (C.A.D.C.), in defining a "straight-line operation," where the Board
,declared:
In the process of decisional interpretation of Section 8(b)(4)(A) the Board
has developed two tests for ascertaining the existence of "ally" relationship
between the employers involved in the dispute. Thus, the Board has held that
when the primary and secondary employers, although separate legal entities, are
commonly owned or controlled or are engaged in closely integrated operations,
they would be regarded, under certain circumstances, as a single employer under
the Act and hence "allies" in, and parties to a union's dispute with the primary
employer.
In other words, a "straight-line operation," also referred to in some decisions as a
"single-line operation," is one in which the activities of two companies are so inte-
grated and interdependent that they must be regarded as a single operation for the
purpose of applying the ally concept.33 It has also been stated in the following
language:34
Where the third party is so closely connected with the struck employer that it is
not realistic to regard the strike against the third party as the extension of a
dispute."
Some authorities and one court have indicated that the "ally" doctrine should be
limited to those situations where struck goods are transferred to a secondary employer
and not extended so as to apply to where the primary and secondary employers have
common ownership, interlocking directorates, and "straight-line operations." 35 The
reasoning behind this concept is that the ally doctrine, according to its legislative
history, was intended to apply only to those situations where the relationship between
the primary and secondary employer results in a significant impairment of the union's
primary strike.36 However, it would appear that the distinction is easier to state
than to apply because H.R. Rep. No. 1147, 86th Cong., 1st sess. 38 (1959) indi-
cates that as to the "ally" doctrine, the statute was not amended because of an intent
to preserve existing law.
In J. G. Roy and Sons Company, 118 NLRB 286, the Board held that a union did
not violate the Act by demanding that a union contractor cease installation of lum-
33 The "ally" doctrine was applied and the so-called "straight-line operation" concept
was enunciated by the Board in National Union of Mai ine Cooks and Stewards, and
Pacific Coast Firemen, Oilers, Watertenders & Wipers Association (Irwin-Lyons Lumber
Company), 87 NLRB 54, where the same person owned and controlled substantial inter-
ests in both a lumber and a transport company, the latter possessing an exclusive fran-
chise for bringing cut logs to the lumber company's sawmill. The Board held them to
be allies as they were an integrated enterprise with the transport company being an adjunct
of the lumber company the primary or struck employer. As to common ownership and
control over labor relations as being within the ally doctrine, this was discussed in Con-
denser Corporation of America, at al., 22 NLRB 347, modified and enfd 128 F. 2d 67
(C A. 3) In N L.R B. v. Wine, Liquor & Distillery Workers Union, Local 1, Distillery,
Rectifying and Wine Workers International Union of America, A F of L (Schenley Dis-
tillers Corporation), 178 F. 2d 584 (C A. 2), discussing the "straight-line" operation con-
cept, it was held it must be a close relationship. In Somerset Classics, Inc. and Modern
Mfg. Co , Inc., 90 NLRB 1676, enfd 193 F. 2d 613 (C A. 2), cert denied 344 U S. 816,
a manufacturer was held liable for unfair labor practices committed by a contractor
where ownership and control of both companies was held by same family and there was a
close integration of their operations. In N.L.R B v. Milk Drivers and Dairy Employees,
Local Union No. 584, International Brotherhood of Teamsters, etc. (Old Dutch Forms,
Inc ), 341 F 2d 29 (CA 2), 58 LRRM 2290, 2292, the court stated that where there
exists a "community of interests between two employers, where the two employers are
allied by family ties, common ownership, or joint control, that the two can rightfully be
treated as one for the purpose of Section 8(b)(4)(1) and (ii)
34 37 New York University Law Review, 508, 509.
as Cf. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at (J. G.
Roy and Sons Company), 118 NLRB 286, 293
30 See Alpert v United Brotherhood of Carpenters and Joiners of America, AFL-CIO,
at al. (J. G Roy and Sons Co ), 143 F. Supp 371 (D.C. Mass.) ; 56 Michigan Law Review
462: Senator Taft's statement, supra; 64 Harvard Law Review 781, 802; and cases
collected in 16 A L.R. (2d) 769, 778-781.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber precut by nonunion carpenters employed by an unorganized supplier and by
causing union members employed by the contractor to strike a construction project
when the contractor refused to comply with the union's request, since the contractor
was not a neutral in the primary dispute between the union and the supplier but was
an ally of the supplier. Although the contractor and supplier are separate corpo-
rate entities , stated the Board, they are commonly owned and controlled and are
engaged in a "straight-line operation" in that the supplier was the sole source of-
supply of millwork lumber used by the contractor. Therefore, held the Board, the
contractor is not an innocent third party entitled to the Act's secondary boycott
protection.
On appeal, the court reversed the Board 37 holding that common ownership and
control of the primary employer and secondary employer are necessary to establish
an ally relationship between both employers, and potential common control inher-
ent in common ownership is not sufficient, but there must be actual common control
(which was not present here, said the court) as respects protection afforded to neu-
trals under Section 8(b) (4) of the Act so that the construction company was not an
"ally" entitled to the law's protection.
The situation in which a secondary employer may be regarded as an ally of a
struck employer even though there is no common ownership and control or inte-
gration of operations has been discussed above. This occurs when the secondary
employer takes it upon himself to cooperate with the struck employer to the extent
of doing the work which the struck employer is unable to do because of a strike.38-
In a leading case 39 where the union's picketing of independent repair companies
with signs notifying the public that independent employees were being used as strike-
breakers for striking repair mechanics of a typewriter manufacturer, the Board held
that this was not lawful primary picketing. The Board's rationale was that the-
independents were "allies" of the typewriter manufacturer but it was, nevertheless,
secondary picketing in violation of the Act because the independents were paid'
directly by the manufacturer for repair work that would have been done by the
manufacturer's mechanics under a warranty and maintenance contract if there were
no strike but since there was no evidence that the manufacturer was responsible for
the employment of any particular independent by its customers, there was a violation
of Section 8(b) (4).
The Court of Appeals for the Second Circuit denied enforcement, holding the-
independent typewriter repair companies to be allies of the Royal Typewriter Com-
pany when they did repairs for customers sent to them by Royal during the strike
by Royal employees whose customary duties were to repair such typewriters. The
union's picketing of the independent repair companies was held by the court not to
be a violation of the law in view of the ally relationship. The court said that a
secondary employer is not protected against such picketing under the following
circumstances:
(1) When he "knowingly" does work that would have been performed by employ-
ees of the striking employer if the strike had not occurred, and
(2) when the "struck work" is paid for by the struck employer "pursuant to an
arrangement devised and originated by him to enable him to meet his contractual'
obligations."
17 J. G. Roy and Sons Company v N L R B., 251 F. 2d 771 (C.A 1).
38 In Douds v Metropolitan Federation of Architects, Engineers, Chemists and Techni-
cians , Local 231 (Pro)ect Engineering Company), 75 F Stipp 672 (D C.N.Y.), it was
held that a secondary employer who performed struck work under contract with the pri-
mary employer is no longer a neutral, but an ally of the primary employer, so that
picketing of the secondary employer does not violate the Act The court stated that if
the primary employer could freely transfer struck work, the strike against the primary
employer would be rendered as ineffectual as if the use of strike breakers was permitted
In N.L R B. v. Business Machine and Office Appliance Mechanics Conference Board, Local
459, International Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter
Co.), 228 F. 2d 553 (C.A. 2), the court in allowing the union to picket an employer who
was accepting struck work from the primary employer, held both employers to be allies
See also N.L.R.B. v. Enterprise Assn. of Steam. Hot Water, etc, Local 638 of Plumbers,
etc (Consolidated Edison Co ), 285 F 2d 642 (CA 2) , Shopmen's Local Union No. 501
of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-
CIO (Oliver Whyte Company, Inc ), 120 NLRB 856
Business Machine & Office Appliance Mechanics Conference Board, Local 459, I.U.E.
(Royal Typewriter Company , Inc.), 111 NLRB 317, enforcement denied 228 F. 2d 553
(C.A. 2), cert. denied 351 U.S. 962
WAREHOUSE UNION LOCAL 6, ETC. 1063
The Supreme Court denied certiorari. The Board has since adopted the reason-
ing, legal principles, and conclusions of the court of appeals in the Royal Type-
writer case.
Conclusions
Synthesizing the principles enunciated above, it is clear that the 1959- amendments
of Section 8(b)(4), commonly referred to as the secondary boycott provisions, were
designed to close certain loopholes in the original secondary boycott provisions of
the Taft-Hartley Act. But these changes did not expand the salient type of conduct
which Section 8 (b) (4) (A) (now 8(b) (4) (B) ) of the Taft-Hartley Act condemned;
that is, union pressures calculated to induce the employees of a secondary employer
to withhold their services in order to force their employer to cease dealing with the
primary employer 40 This section clearly represented an effort by Congress to
achieve a satisfactory reconciliation of the interest of employees and unions in exert-
ing effective pressure upon employer participants in labor disputes on the one hand,
and the interest of neutral employers on the other.
Section 8(b)(4)(i) and (ii)(B) was enacted to eliminate strikes, or the induce-
ment thereof, aimed at employers who were "wholly unconcerned in the disagree-
ment" between a union and another employer41 The illustrations used by propo-
nents of the bill disclose that by an "unconcerned" employer, Congress meant an
employer who is not involved in a labor dispute with his immediate employees over
such matters as union recognition or preference in employment, as in the case at
bar, or particular economic issues directly affecting the terms and conditions of
employment of his own employees. Strike action directed against an employer who
is not in a position legally to grant the union's organizational, preferential, or eco-
nomic demands, i.e., a neutral or secondary employer, is clearly forbidden by the
purposes as well as by the language of Section 8(b)(4).42
The Board and courts, as noted above, however, had adopted in an ally situation,
the exception that an employer loses his neutrality in a dispute between a union and
another employer by performing with his employees the work of the strike-bound
employer. Having abandoned his neutrality, the employer performing the struck
work is regarded as an ally of the employer primarly involved in its dispute and,
like that employer, is not shielded by Section 8(b)(4) of the Act from the Union's
strike action.
By this definition Encinal was a neutral employer and not an ally of Hershey
because, on analysis, Respondent's evidence falls far short of establishing its defenses
and, indeed, in certain respects tends to confirm the General Counsel's own showing.
At the time Hershey leased space from Encinal, not only was there no dispute
between Hershey and its employees but most important the lease at the time it was
entered into between Hershey and Encinal on February 13, 1964, did not call for
the performance of struck work as there was no strike until June 1, approximately
4 months after the execution of the lease. Accordingly, the facts in the instant case
are not encompassed within the ally exception which presupposes struck work defined
as work which but for the strike would have been performed by the striking employ-
ees. But in this proceeding, Hershey's terminated San Francisco warehousemen were
never on strike so that Hershey was not a "struck employer," a necessary concomitant
of an "ally" relationship.
Then, too, if Hershey were to have recognized the Respondent Union as the rep-
resentative of those warehousemen who would be hired in the future when Hershey's
Oakdale plant was completed, this would have been a violation of the Act thereby
rendering not only the Union's objective illegal but also Hershey's recognition of the
Union. As to whether it would have been a violation of the Act for Hershey to
have accorded preference in employment at Oakdale to the six terminated ware-
housemen formerly employed at Hershey's closed San Francisco warehouse is not
here decided. But when the Union employed oblique methods, namely, bringing
pressure upon Encinal by inducing its members, employees of Encinal, to refuse to
handle Hershey products with the object of thus coercing Hershey to hire the six
4° Servette, Inc. V. National Labor Relations Board, 377 U.S. 46, 51-54.
u See 93 Cong. Rec. 4323.
42Local No. 24, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, et at. (A.C.E. Transportation Co., Inc.), 120 NLRB 1103, 1108-
1111. See N.L.R.B. v. Denver Building and Construction Trades Council, et at. (Gould &
Preisner), 341 U.S. 675, 692; Local 810, Steel, Metals, Alloys and Hardware Fabricators
and Warehousemen, International Brotherhood of Teamsters, Chauffeurs , Warehousemen
and Helpers of America (Fein Can Corporation), 131 NLRB 59 , enfd . 299 F. 2d 636
(C.A. 2).
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged employees and to recognize the Respondent Union as bargaining repre-
sentative of all the warehousemen who would be hired when Oakdale was in pro-
duction, then the Union did commit an unfair labor practice
In view of the legislative background and purposes of Section 8(b)(4), the Board
has consistently considered that an employer is not deprived of his status as a "neu-
tral" and made a party to a primary dispute between himself and the union, within
the meaning of Section 8(b)(4), by the mere fact that he persists in doing business
with an employer who is involved in such a dispute. Nor is an employer deprived
of his status as a "neutral" because his business dealings have themselves created the
condition giving rise to the dispute.
This is to be distinguished from the situation where an employer who performs
struck work for another employer involved in a labor dispute is an "ally" of that
employer and therefore is not "doing business" 43 with that employer as to be enti-
tled to the protection of Section 8(b)(4). As the Court of Appeals for the Second
Circuit has, with the approval of the Supreme Court, said: 44
The gravamen of a secondary boycott is that its sanctions bear, not upon the
employer who alone is a party to the dispute, but upon some third party who
has no concern in it. Its aim is to compel him to stop business with the employer
in the hope that this will induce the employer to give in to his employee's
demands. We cannot see why it should make any difference that the third per-
son is engaged in a common venture with the employer, or whether he is deal-
ing with him independently. The phrase, "doing business," would ordinarily
cover doing any business which the third party is free to discontinue, regard-
less of whether he is merely supplying materials to the employer, or has sub-
contracted with him to perform part of a work which the third party has himself
contracted to do . . . Indeed, when the coercion is upon the third person to
break a contract with the employer, his position is more embarrassing than if
he may discontinue his relations with the employer without danger of liability.
The phrase, "cease doing business," is general and admits of no such evasion.
In those cases where it was found that the secondary employer was unneutral or
an ally of the primary employer, supra, there has been evidence, either of common
ownership and managerial control, or transfer of struck work. None of these fac-
tors are present here with respect to Hershey and Encinal. The situation in the
present case is entirely different. Of overriding significance is the fact that Encinal
was not handling struck work for Hershey because no strike existed between Her-
shey's employees and the Union at any time relevant herein. Moreover, and equally
significant, is the fact that Encinal is a separate legal entity conducting a normal
business relationship with Hershey which exercises no control over Encinal. In
these circumstances, Encinal is a neutral employer which Section 8(b) (4) (i) and
(ii) (B) are designed to protect from being involved in controversies not of their own.
Section 8(b)(4) was designed to protect secondary employees as well as their
employers. In this case, the employees of Encinal have been enmeshed by Respond-
ent in a dispute that does not concern them at all and in which their own interests
are in no way involved. Encinal's employees were induced to strike by the Respond-
ent Union and not to handle Hershey's products not for the purpose of achieving any
legitimate union demand but in an effort to force Hershey to violate the Act by
recognizing the Respondent Union as the bargaining representative of employees not
yet hired at Oakdale, regardless of these future employees' wishes and rights, and to
give preference in employment to the former San Francisco warehouse Hershey
employees at a plant not yet in operation To hold that such demands are legiti-
mate, within the context of the facts of this case, would condone such conduct and
permit and encourage that which the Act seeks to prevent; namely, allowing the
Respondent Union to induce Encinal, a neutral, to cease doing business with
Hershey.45
Assuming, arguendo (which is contrary to the finding made herein), that if Encinal
had been shown to be an ally of Hershey, the picketing of Encinal would be lawful,
it is found that there is insufficient basis in the record for holding Encinal was such
an ally. Where a respondent pleads an ally defense, the governing rule of evidence
43 Cf. Douds v Metropolitan Federation of Architects , Engineers , Chemists and Tech-
nicians, Local 281 (Project Engineering Company ), 75 F. Supp. 672 (DC.N.Y.).
"International Brotherhood of Electrical Workers , Local 501, et al. (Samuel Langer)
v. N.L.R B. , 181 F. 2d 34, 37, affd 341 U.S. 694.
4s See Local No. 5, United Association of Journeyman and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Arthur Venneri
Co.) v. N L.R.B., 321 F. 2d 366 (C.A.D C.) ; N.L R B. v. Enterprise Assn. of Steam, Hot
Water, etc. (Consolidated Edison Co .), 285 F. 2d 642 (C.A. 2).
WAREHOUSE UNION LOCAL 6, ETC. 1065
is that, once the General Counsel has made out a prima facie case of violation of
Section 8(b) (4), it is a matter of affirmative defense for the respondent to show the
existence of special circumstances justifying its conduct 46 This showing has not
been made by the Respondent. It is concluded and found, therefore, that the
Respondent Union has not established that Encinal was an ally of Hershey as a
matter of law or by a preponderance of the evidence.
Respondent ascribes a sinister connotation to Hershey's leasing space from Encinal
by contending Hershey was motivated by a desire to rid itself of the Union and, in
effectuating this alleged purpose, it fraudulently represented to its San Francisco
warehouse employees at the time they were terminated that they would be given jobs
at the Oakdale plant when it was completed. Such a showing, however, has not been
made by Respondent in this case. Moreover, argues the Union, if this alleged decep-
tion were not perpetrated on the terminated San Francisco employees, they would
have gone on strike so that the Hershey products warehoused at Encinal would have
been struck goods. However, speculation and hypothetical conjectures must not be
allowed to supplant proof and can have no place in an area of the law where facts
are the keystone upon which issues are forged and resolved.
Also belying Respondent's argument and buttressing Hershey's contention that its
decision to transfer to a public warehouse, which had been under serious considera-
tion for a long time before it decided to discontinue its San Francisco warehouse,
was motivated by valid economic factors is the fact that Hershey could not accurately
determine the rate at which its San Francisco warehousing would diminish, or the
future volume of goods that would be distributed from the San Francisco area so
that Hershey concluded public warehousing would be more economical because of
the flexibility it provided. Moreover, the Company's present policy is one of leasing
space in public warehouses. At the present time, it leases space in 27 public ware-
houses throughout the country so that its move to Encinal was neither hastily con-
ceived, as it was under consideration long before any dispute arose between Hershey
and the Union, nor was it a radical departure from the Company's established
national policy to lease space in public warehouses.
Furthermore, Encinal does not come within the definition of an "ally." This is
not a situation where a secondary employer undertakes to perform work theretofore
performed by strikers for the duration of a strike. Encinal did not "knowingly" do
work which would otherwise have been done by the terminated San Francisco employ-
ees of Hershey as it is uncontradicted that when Encinal signed a lease with Hershey
on February 13, there was no dispute between Hershey and the Union 47 In fact,
Encinal did not know there was a dispute until May 26, 1964, more than a month
after Hershey moved to Encinal, and 3 months after the lease was executed, when
a union official advised Encinal that its members who were employed by Encinal
might refuse to handle Hershey's products. Moreover the "ally" concept is prem-
ised on the primary employer's employees being on strike (which Hershey's ware-
housemen were not), and that the work being done by the secondary employer's
employees was struck work, which in the instant case it was not. Under these cir-
cumstances, it is clear that the "ally" doctrine does not apply. Finally, Encinal was
in the position of an "unconcerned" employer which Section 8(b) (4) is designed to
protect; namely, one forced into a labor dispute not his own for reasons outside his
control.48
"Business Machine & Office Appliance Mechanics Conference Board, Local 459, Inter-
national Union of Electrical, Radio & Machine Workers, CIO (Royal Typewriter Company,
Inc), 111 NLRB 317, 318; Chauffeurs, Teamsters, Warehousemen and Helpers Local
Union No. 135, etc. (Marsh Foodliners, Inc.), 114 NLRB 639, 642
47 See N.L.R B. v. Business Machine & Office Appliance Mechanics Conference Board,
Local 459, International Union of Electrical Radio & Machine Workers, CIO (Royal Type-
writer Company, Inc ), 228 F. 2d 553, 559, 562 (C.A. 2), cert. denied 351 U S 962. Cf
International Die Sinkers Conference, San Jacinto Die Sinkers Lodge #410; et at. (Gen-
eral Metals Corporation), 120 NLRB 1227.
+s In United Steelworkers of America, AFL-CIO (Tennessee & Iron Division of the
United States Steel Corporation), 127 NLRB 823, 824, the Board described the ally rule
as follows: "If a third party employer engages in conduct which is inconsistent with his
professed neutrality in the dispute such as performing the farmed-out struck work of the
primary employer, it may be properly assumed that, by knowingly engaging in such con-
duct, the third party employer has abandoned his "neutral" status and laid himself open
to economic pressure by the Union." (Citing Project Engineering Company, supra, and
the court's decision in NL.R.B. v. Royal Typewriter Company, Inc., 228 F. 2d 553 (C.A.
2).) See also Metal Polishers, Buffers, Platers and Helpers International Union, A.F. of L.;
et at. (Climax Machinery Company), 86 NLRB 1243.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor does the evidence establish the factual validity of the reason assigned by
Respondent that this work was performed by Encinal pursuant to a lease which was
entered into with Hershey under circumstances indicating bad faith and an intent by
Hershey to rid itself of the Union. There is not a scintilla of evidence to show this
or any other collusion between Hershey and Encinal to effectuate such a purpose.
On the contrary, an inference is warranted and so found that Hershey was acting
in good faith in exploring whether it should discontinue its San Francisco warehc 'ise
and in negotiating with and entering into a lease with Encinal for public warehousing.
Moreover, the record does not sustain the Respondent's contention of bad faith,
duplicity, false representations, and union animus. On the contrary, the Respondent
Union in a letter to Hershey, dated April 10, 1964 (General Counsel's Exhibit No. 10),
states that its relationship "has been a good one over the years," from which it is
reasonable to conclude that Hershey had no disposition to evade its obligation to
deny its terminated San Francisco warehouse employees the rights guaranteed them
by the Act. Nor does the record indicate anything that can attribute bad faith or be
looked upon with suspicion as regards Hershey's motives and actions. If importance
is attached to a hostile union attitude on the part of an employer in characterizing
his acts, conversely, it would seem, as a matter of equity, that an employer with a
friendly union attitude is entitled to credit in appraising and characterizing its motives
and actions.49
The Union's contention that Hershey is a "runaway" warehouse, en route to Oak-
dale, with a temporary stopover at Encinal, as part of a scheme to rid itself of the
Union, must fail for lack of proof as there is no evidential or rational inferential
support to sustain such a conclusion. To the contrary, it is uncontradicted that
Hershey's lease, with Encinal which is not for a fixed term, may be renewed indefi-
nitely as there is the possibility, testified Schiller, an official of Hershey, that they
may continue to warehouse its products in the San Francisco area after its Oakdale
plant is in operation.
The Union also claims that when the court's order was read to Encinal's employees
on August 12 by Attorney Grossman which ordered them to handle Hershey's prod-
ucts and they still persisted in refusing to do so, that this was not due to any induce-
ment by the Union but was the employees' individual choice. This assertion not
only strains but shatters one's credulity as the Union's conduct, as well as its words,
so clearly betray the Union as to characterize such a contention as bordering on the
frivolous. The record is replete with substantial evidence, including the statement
Respondent's counsel read to Encinal's employees on August 12,50 which shows that
the Union's conduct constituted "inducement and encouragement" within the mean-
ing of the Act.51 The statement was clear in its meaning and implications. "The
words `induce or encourage' are broad enough to include in them every form of influ-
ence and persuasion." 52 Moreover, Respondent's failure to call these employees of
Encinal to testify warrants an inference that their testimony would not have sup-
ported this defense.-53
The Union also contends that Hershey's withdrawal on April 30, 1964, from the
Distributors Association was ineffectual, as the collective-bargaining agreement
between the various employers of this multiemployers' bargaining group and the
Union did not expire until May 31, 1964, so that Hershey continued to be bound by
the contract until May 31. Respondent's reliance upon this assumption is misplaced.
This contention misconceives the reason behind the rule restricting the right to with-
draw from multiemployer bargaining groups. The basis for this restriction is designed
to keep employers from abandoning the group as a matter of expediency or bargain-
ing strategy which are not the facts here.54 Hershey withdrew from the Distributors
'D See N L.R.B. v. Chronicle Publishing Company, Inc., 230 F. 2d 543, 547-548 (C A. 7).
aD Attached hereto as Appendix B
m See International Brotherhood of Electrical Workers, Local 501, et al . (Samuel
Langer) v. N.L.R B , 341 U.S. 694, 701-702; Local 294, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Van Transport Lines,
Inc) v. N.L.R.B., 298 F. 2d 105, 107-108 (C A 2) ; N L R.B v Highway Truckdrivers
and Helpers , Local No. 107, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Rise it Co.), 300 F 2d 317, 319, 322 (C.A. 3) ; N.L R B.
v. International Hod Carriers, Building and Common Laborers' Union of America, Local
No. 1140, AFL-CIO (Gilmore Construction Co.), 285 F. 2d 397, 402 (C.A. 8), cert. denied
366 U.S. 903.
International Brotherhood of Electrical Workers, Local 501, et al. (Samuel Langer)
v. N.L.R.B., 341 U.S. 694, 701-702.
5sHolliday v. U.S., 315 U.S. 94, 99; Interstate Circuit v. U.S., 306 U.S. 208, 225.
64 Universal Insulation Corporation , 149 NLRB 1397.
WAREHOUSE UNION LOCAL 6, ETC. 1067
Association , composed of employers which bargained for Hershey in dealings with
the Union , because they discontinued their San Francisco warehouse , terminated its
employees , members of the Union , and transferred their operations to Encinal, a
public warehouse . Moreover , when the Union was notified of Hershey 's withdrawal
from the Distributors Association on January 7, it offered no objection until April 22.
See General Counsel 's Exhibit No. 12. Furthermore , the existence of a multiemployer
group must be predicated upon the mutual consent of the Union and the employers
concerned , and it is manifest that this basis is lacking here as Hershey notified Dis-
tributors Association of the withdrawal which, in turn , notified the Union which
did not object to Hershey 's withdrawal.55
Respondent also argues that for Hershey to discharge peremptorily and summarily
these six loyal and efficient employees who worked at its San Francisco warehouse
for many years , one for over 20 years, without offering them preference in employ-
ment when the Oakdale plant is completed-is manifestly inequitable and morally
wrong; 56 and then to order Encinal 's employees , members of the Respondent Union,
to perform services for Encinal when such services will enhance the economic wel-
fare of Hershey against whom the Union is engaged in a dispute , would not only
compound the injustice but would be tantamount to the Board lending its processes
to perpetrating a wrong. This is a moral argument based on social wisdom and not
to the interpretation or application of the legal precedent and principles which can
be the only proper considerations that can be taken into account by me in resolving
the issues in this proceeding . Moreover , the Act banned unfair labor practices in
order to vindicate a public interest and did not create private rights, the recognition
of which on some occasions might thwart this public interest . 57 The Board in deter-
mining legality of object does not differentiate between the ultimate, alternative,
conditional , or immediate nature of the various objectives that may be involved in
such activities . However, denominated , if an object is proscribed , an attempt to
achieve it within 8 (b)(4)(i) or ( ii) (B) is unlawful 58
Then, too, this moral argument indicates that Hershey's personnel policies with
respect to these six employees leave much to be desired but that is not within the
province or competency of the trier of these facts to judge nor a violation of the
National Labor Relations Act. It can be just as reasonable to infer that Hershey's
personnel policies are based and determined on what company officials think to be
sound business practice . To hold otherwise , would be the equivalent of me placing
myself in the position of substituting my own ideas of business judgment and man-
agement for those of the Company This is not permissible . 59 Perhaps consolation
may be found in Justice Holmes observation that the law is "no brooding omni-
presence in the sky" but "merely the work of men "
Respondent finally contends that Section 8(b)(4) of the Labor-Management
Reporting and Disclosure Act of 1959 , 29 U S C. ( Supp. IV, 1963 ) Sec. 158, is
unconstitutional and in that Section 8(e) exempts from its prohibitions the construc-
tion and clothing industries . This exemption , contends Respondent , is arbitrary in
that it does not encompass similar relationships in other industries . The Board has
held repeatedly that as an administrative agency of the Federal Government , it would
be inappropriate for it to pass upon the constitutionality of congressional enactments
and that it will presume the constitutionality of the Act it is charged with administer-
ing absent binding court decisions to the contrary.so
55 See Chicago Metropolitan Home Builders Association, 119 NLRB 1184, 1186.
^ See letter of April 10 , 1964 ( General Counsel ' s Exhibit No. 10)
67 See Amalgamated Utility Workers , etc v Consolidated Edison Company of New York,
Inc., 309 U . S. 261.
51 National Maritime Union of America, AFL-CIO ( Delta Steamship Lines , Inc.), 147
NLRB 1328.
69 N.L .R B. v. Blue Bell, Inc., 219 F. 2d 796, 798 ( CA. 5) ; Thurston Motor Lines, Inc ,
149 NLRB 1368
0OAmerican Federation of Television and Radio Artists , San Francisco Local, National
Association of Broadcast Employees and Technicians, Local 55 (Great Western Broad-
casting Corporation, d/b/a KXTV, 150 NLRB 467 , footnote 14, Service Trade Chauf-
feurs, Salesmen , and Helpers , Local 145 , etc (The Howland Dry Goods Company), 85
NLRB 1037 , 1038, footnote 2 See Truck Drivers Union Local No. 413, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen d Helpers of America , et al. (Pat-
ton Warehouse, Inc and Brown Transport Corp.) v. N.L.R .B., 334 F. 2d 539 ( CAD.C.),
cert . denied 379 U.S. 916; Employing Lithographers of Greater Miami , Florida (Miami
Post Co. ) v. N.L.R B., 30 '1 F. 2d 20, 24-27 (C.A. 5), holding these provisions of the Act
to be constitutional.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it is concluded and found that Encinal was a neutral party to the
Union's dispute with Hershey, and that the Respondent violated Section 8(b)(4)(i)
and (ii)(B) by its picketing and inducing its members, employees of Encinal, not to
handle Hershey's products, with the immediate object of forcing Encmal to cease
doing business with Hershey, and that its ultimate object was to thereby coerce
Hershey into recognizing it as the representative of its Oakdale warehouse employees
and according preference in employment to the six terminated San Francisco ware-
housemen. It is further found that President Duarte's threat to Delsol, Encinal's
official, to refuse to allow its members employed by Encinal to handle Hershey's
products violated Section 8(b) (4) (ii) (B) of the Act.61
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above, occurring in connection
with the operations of Hershey and Encinal described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Union has violated Section 8(b) (4) (1) and (1i) (B) of the
Act, it shall be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Hershey Chocolate Corporation and Encinal Terminals are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Warehouse Union Local 6, International Longshoremen's and Warehousemen's
Union, is a labor organization within the meaning of Section 2(5) of the Act.
3. By picketing Encinal's warehouse at San Leandro and inducing Encinal's
employees not to handle Hershey's products at said warehouse, all of said picketing
and refusal to handle Hershey's products being in furtherance of a dispute by the
Union with Hershey, the Union has engaged in unfair labor practices within the
meaning of Section 8(b) (4) (i) and (ii) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this proceeding, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondent, Warehouse
Union Local 6, International Longshoremen's and Warehousemen's Union, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Engaging in, or inducing or encouraging any individual employed by Encinal
Terminals at its warehouses at San Leandro, Oakland, or Alameda, or by any other
person engaged in commerce or in any industry affecting commerce,62 to engage in,
"In N.L R.B. v. Western States Regional Council No 3, Intel national Woodiaoi hers
of America, AFL-CIO, et al. (Priest Logging, Inc), 319 F 2d 655 (CA 9), enfd. 137
NLRB 352, it was held that the Union violated 8(b) (4) (i) and (11)(13) by picketing a
company storing logs for a struck sawmill with the object of forcing the picketed com-
pany to cease doing business with the struck company The court held the picketed com-
pany not to be an "ally" stating that, although the picketed company's employees
unloaded logs for storage, thus performing the same work as the sawmill company's
employees who were on strike, this storage of logs did not aid the struck employer in
carrying on its manufacturing activity and so It was not struck work within the meaning
of the ally doctrine. The case at hand is an a fortiori case to this Woodiborheis case
as the employees of Hershey, the primary employer, were not on strike Cf Al L R B v
Amalgamated Lithographers of America (Ind) and Local No 17, etc (Lithegiahhers
and Printers National Assn, et al ), 309 F. 2d 31 (CA. 9), and International Longshore-
men d Warehousemen's Union, and Local No. 13, etc. (Catalina Island Sightseeing Lines),
124 NLRB 813
e2 See N.L.R.B. v. Local 88, International Brotherhood of Electrical Workers, AFL-CIO
(S Simon Construction Co ), 339 F 2d 197 (CA. 6), 58 LRRM 2001, 2003, as to the
phrase "any other person" being proper
WAREHOUSE UNION LOCAL 6, ETC. 1069
a strike or refusal in the course of their employment to transport, use, or otherwise
handle or work on goods, commodities, or materials or to perform any services, where
an object thereof is either to force, require, or compel Encinal Terminals or any other
person to cease handling, transporting, or otherwise dealing in the products of and
to cease doing business with Hershey Chocolate Corporation.
(b) Threatening, coercing, or restraining Encmal Terminals or any Encinal
employee or any other employer engaged in commerce or in an indutsry affecting
commerce, by picketing, ordering, or requesting them, where an object thereof is to
force or require said employees or persons to cease handling, or to engage in a strike,
slowdown, or otherwise handling Hershey products for the objects set forth in para-
graph l (a) of this Recommended Order.
2. Take the following affirmative action which is designed to effectuate the policies
of the Act:
(a) Notify its members, in writing, they are free to handle Hershey's products.
(b) Post at its business offices and meeting halls, copies of the attached notice
marked "Appendix A " 63 Copies of said notice, to be furnished by the Regional
Director for Region 20, shall, after being duly signed by an authorized representative
of the Respondent Union, be posted by it immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its members are customarily posted. Reasonable
steps shall be taken by the Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Furnish to the Regional Director for Region 20, signed copies of said notice
for posting by Encinal Terminals, if willing, in places where notices to employees are
customarily posted.
(d) Notify the Regional Director for Region 20, in writing, within 20 days from
the date of the receipt of this Decision, what steps the Respondent Union has taken
to comply herewith.64
It is further recommended that unless the Union shall within 20 days from the
receipt of this Decision notify said Regional Director, in writing, that it will comply
with the foregoing Recommended Order, the National Labor Relations Board issue
an Order requiring it to take the aforesaid action.
63 In the event that this Recommended Order shall be adopted by the Board, the words
"a Decision and Order" shall be substituted for the words "the Recommended Order of
a Trial Examiner" in the notice. In the further event that the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a De-
cision and Order".
E1 In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 20, in writing, within
10 days from the date of receipt of this Order, what steps the Union has taken to comply
herewith."
APPENDIX A
NOTICE TO ALL MEMBERS OF WAREHOUSE UNION LOCAL 6, INTERNATIONAL
LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT induce or encourage the employees of Encinal Terminals to
engage in a strike, slowdown, or a refusal to perform any services for said
Employer or to transport or handle goods, where an object thereof is either to
force or require Encinal Terminal to cease handling, transporting, or otherwise
dealing in the products of or to cease doing business with Hershey Chocolate
Corporation
WE WILL NOT threaten, coerce, or restrain any employees of Encinal Termi-
nals by picketing or any other conduct, not to handle Hershey products, where
an object thereof is to force or require Encinal to cease doing business with
Hershey Chocolate Corporation.
WAREHOUSE UNION LOCAL 6, INTERNATIONAL LONGSHORE-
MEN'S AND WAREHOUSEMEN'S UNION,
Labor Organization.
'Dated------------------- By-------------------------------------------
(Representative) (Title)
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 450 Golden
Gate Avenue, San Francisco, California, Telephone No. 556-6724, if they have any
questions concerning this notice or compliance with its provisions.
APPENDIX B
TO THE LOCAL 6 EMPLOYEES AT ENCINAL TERMINAL
We have called you together to advise you that an injunction has been issued by
the Federal Court, and tell you what that injunction says and what it means. The
injunction is directed to the union. The injunction instructs the union to do certain
things. The injunction is not directed at you. The injunction does not tell you to do
anything, or not to do anything.
You are, of course, aware that the union placed a picket at Encinal Terminal, and
made it clear to you that it was union policy that you should not handle or work on
Hershey products. The injunction tells the union not to place any more pickets at
Encinal, and not to encourage you to refuse to handle Hershey products. Following
the injunction, the union is now telling you that it is withdrawing and taking back any
instructions, or orders, or directions, or solicitations, or requests, which it has made
to you not to handle Hershey products. The union wishes to make it clear that if you
handle Hershey products, you will not be violating any union rules, or instructions, or
advice, and you will not be penalized in any way if you handle Hershey products.
We hope we have made it clear to you that the union policy is now, as required by
the injunction, to keep hands off. This means the union is not even suggesting to you
what you should or should not do on the handling of Hershey products.
However, we do want you to understand that if you act on your own, without any
kind of pressure from the union, you have the legal right to refuse to handle Hershey
products. We hope we have made it clear that you have the right, but be sure you
understand that the union is not telling you to handle or not to handle, Hershey
products.
We have stated that you have the right, on your own, to refuse to handle Hershey
products. You may wonder whether, if you refuse to handle these products on your
own, the union will back you up and defend you. The answer is, "We will". We
will take whatever steps are required to back you up if you should decide to refuse to
handle Hershey products.
Because we want to be sure that the union complies with the injunction, and also be
sure that you understand this question clearly, we will repeat our statement once more,
in a different way:
Under the injunction, the union has the duty to undo what it has done. It must
make clear to you that you are not under any kind of union pressure at all to refuse
to handle Hershey products. At the same time, we have the obligation to make it
clear to you that under the injunction, and under the decisions of the Labor Board,
and under the agreement, you have the complete right to refuse to handle these prod-
ucts if your refusal is completely voluntary and is not based upon any pressure from
the union, or fear on your part that you might be penalized.
Frontier Homes Corporation and United Steel Workers of Amer-
ica, AFL-CIO . Case No. 17-CA-2361. July 1, 1965
DECISION AND ORDER
On November 10, 1964, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
153 NLRB No. 39.