International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America

In the Matter of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 201, AFL and THE INTERNATIONAL RICE MILLING CO., INC.;-AMERICAN RICE MILLING CO., INC.; LOUISIANA STATE RICE MILLING CO., INC.; AND JOSEPH DORE, SR., DOING BUSINESS AS SUPREME RICE MILL In the Matter of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 201, AFL and LovING RICE MILLS In the Matter Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 201, AFL and LOUISIANA STATE RICE MILLING CO., INC. In the Matter Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 201, AFL and KAPLAN RICE MILLS, INC. Cases Nos. 15-CC-1 through 15-CC-4, respectively.Decided June 20, 1949 DECISION AND ORDER I On June 25, 1948, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the complainants and the General Counsel filed exceptions and supporting briefs; none were filed by the Respondents. The requests for oral argument made by the Respondent and the General Counsel are hereby denied, inasmuch as the record and the briefs, in our opinion, adequately present the issues and the positions of the parties.' 1 The Railway Labor Executive Association also requested oral argument as amtcus curiae Its request is likewise denied Although the Association has not presented its position in this matter to the Board , it was offered an opportunity to do so when the Board on August 2, 1948 , granted its request foi permission to file a brief herein. 84 N L. R. B., No. 47. 360 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 361 The Board has reviewed the rulings of the Trial Examiner made at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, but only insofar as they are consistent with this Decision and Order. 1. The Trial Examiner found that the Respondent violated Section 8 (b) (4) (A) and (B) of the Act by picketing sidings of cert.9in interstate railroads, subsidiaries of the Missouri Pacific and Southern Pacific, and by threatening employees of those railroads with violence for dishonoring its picket lines. We cannot agree with this finding. The relevant portion of Section 8 (b) (4) (A) and (B) of the Act pro- vides that it shall be an unfair labor practice for a labor organization to induce or encourage the "employees" of any "employer" to engage in a secondary boycott. However, Section 2 (2) and (3) of the Act provide in part that the term "employer" should not include "any person subject to the Railway Labor Act," and that the term "em- ployee" should not include any individual "employed by an employer subject to the Railway Labor Act." In view of the clear language of the amended Act, and in the ab- sence of any indication in the legislative history that Congress intended a different result, we must conclude that none of the Respondent's aforesaid activities induced or encourages employees of an employer to engage-in a secondary boycott, within the meaning of Section 8 (b) (4) (A) or (B). Our conclusion in this respect is buttressed by the separate treatment that Congress has historically accorded railroads, their employees, and the organizations of- their employees. In our opinion, a sudden contrary intent on the part of the Eightieth Congress should not be inferred in the absence of a clear expression in the statute that such was the Congressional purpose. We find no sugges- tion of such a clear expression here. Indeed, the fact that the 1947 amendments changed the definition of employee by excluding persons 4'employed by an employer subject to the Railway Labor Act," where- as no such exclusion was contained in the Wagner Act before amend- ment is, if anything, an expression of an opposite intention. 2. The Trial Examiner also found that the Respondent violated Section 8 (b) (4) (A) and (B) by attempting to prevent a Sales House truck from entering the Kaplan mill on October 21, 1947. We do not agree with this finding. The Respondent's' activities arose out of the primary picketing of the Kaplan mill, and were carried out in the immediate vicinity of that mill. Violence on the picket•line is not 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be condoned, but violence does not convert primary picketing into secondary action within the meaning of Section 8 (b) (4) (A) or (B).2* As the complaint herein does not allege restraint and coer- cion of employees in violation of Section 8 (b) (1) (A), we are not called upon to decide whether the Respondent's conduct toward the employees of the Sales House constituted a violation of that Section. In view of the foregoing, we shall dismiss the entire complaint. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint issued herein against the Respondent, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 201, AFL, be, and it hereby is, dismissed. MEMBER GRAY took no part in the consideration of the above Deci- sion and Order. INTERMEDIATE REPORT C. Paul Barker, Esq , IV. P Alexander, Esq., And! erc P. Carter, Esq., and Victor G. Hess, Esq., for the General Counsel Baldwin, Haspel & Molony, by Laurence A Molony, Esq ., and Conrad Meyer, 1II, Esq., of New Orleans , La, for Kaplan, Loving , International , American, and Supreme. E. R. Kaufman , Esq., of . Lake Charles,, La., and Monroe and Lemann, by Nicholas ,Kalalan, Esq., of, New , Orleiins, La.; for, Louisiana State. Milling, Godchaux , Saal & Diilling , by J. B. Miller, Esq., of New Orleans, La., for the Missouri Pacific. Davidson & Davidson, by J. J. Davidson, Esq., of Lafayette , La., for the Southern Pacific. ,Chris Dixie, Esq., of Houston, Tex., and Aubrey Hirsch, Esq., of Baton Rouge, La., for the respondent. STATEMENT OF THE CASE Upon charges and amended charges duly filed by The International Rice Milling Co., herein called International ; American Rice Milling Co., Inc., herein called American ; Louisiana State Rice Milling Co., Inc., herein called Louisiana State ; Joseph Dore, ' 9r., `doing business as Supreme Rice Mill, herein called Supreme ; Loving Rice Mills, herein called Loving ; and Kaplan Rice Mills, Inc.; herein called Kaplan,' and in accordance with an order of the General Counsel of the National Labor Relations Board, herein called the General Counsel ,' dated January 23, 1948, consolidating the four cases , the General Counsel, by the 2* See Matter of Oil Workers International Union, Local Union 31,6 (010 ) and The Pure Oil Company ( 84 N L R B 315) 1International, American , Louisiana State, Supreme , Loving , and Kaplan are at times referred to collectively herein as the complainants 2 This designation will also be used to refer to the attorneys on the staff of the General Counsel who presented the case in his behalf INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 363 Acting Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated January 27, 1948, against International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 201, AFL, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8 (b), subsections (4) (A) and (4) (B), and Section 2 (6) and (7) of the National Labor Relations Act, as amended June 23, 1947, herein called the Act. Copies of the charges, the complaint, and notice'of hearing-were duly served upon the respondent and the complainants With respect to the unfair labor practices, the complaint, as amended,' alleged in substance that (1) the respondent, during the course of a strike of the com- plainants' mills, induced and encouraged the employees of Texas and New Orleans Railroad, hereinafter called the Southern Pacific, of New Orleans, Texas and Mexico Railroad, hereinafter called the Missouri Pacific,' and The Sales and Service House, hereinafter called the Sales House, to engage in a strike or concerted refusal in the course of their employment to transport or otherwise handle, or work on, goods, articles, and commodities shipped to or from the complainants, or to perform services in connection with the shipment of such goods, articles, and commodities; (2) the object of such conduct on the part of the respondent was to force or require the Southern Pacific, Missouri Pacific, and Sales House to cease using, handling, transporting, or otherwise dealing in the products of, or to cease doing business, with the complainants and to force or require the complainants to recognize or bargain collectively with the respond- ents as the representative of the employees of the respective complainants ; (3) no labor dispute existed at the dates material herein between the Southern Pacific, the Missouri Pacific, and the Sales House and their respective employees ; and (4) by the foregoing acts, the respondent engaged in unfair labor practices within the meaning of Section 8 (b), subsections (4) (A) and (4) (B), of the Act. On.March 11, 1948,, the respondent- filed its answer, in part admitting and in part denying the allegations in the complaint, but denying'that the respondent had engaged in any unfair labor practices As special defences, the respondent alleged that (1) its strike and picketing for organizational and recognition pur- poses were exercises of its constitutional right of freedom of speech and of assembly under the first and fifth amendment of the Constitution of the United States, (2) the complainants, against whom the primary strike and picketing were directed, "have no status to institute proceedings complaining of secondary boycott or secondary picketing which under the Act, as amended, may be filed by persons who are neutrals to the labor dispute," and (3) the Southern Pacific and the Missouri Pacific are common carriers- by rail engaged in interstate com- merce, are subject to the jurisdiction of the Railway Labor Act, and , are •not "employers" within the meaning of the Act, with the consequence that the com- plaint's allegations of violations of the Act are insufficient in law. Pursuant to notice, a hearing was held on March 25, 26, and 27, 1948, at Crow- ley, Louisiana, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the com- plainants, the Missouri Pacific, the Southern Pacific, and the respondent were represented by counsel and participated in the hearing. Full opportunity to 8 During the course of the hearing, the complaint was amended as to minor details. 4 The Southern Pacific and the Missouri Pacific are sometimes collectively referred to herein as the railroads. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, argument was held upon two of the special defences urged in the respondent's answer, namely, (1) that the Missouri Pacific and the Southern Pacific were not employers within the meaning of the Act and that accordingly the respondent could not have violated the Act by encouraging their employees to engage in a secondary boycott and (2) that the complainants had "no status" to institute the proceedings. Insofar as these defences were deemed to be motions to dismiss the complaint, they were denied. At the colt elusion of the hearing the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates, spelling, and minor variances. Upon the conclusion of the hearing, the undersigned,advised the parties that they might argue before, and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The parties waived oral argument but briefly stated their positions. Thereafter, counsel for the complainants and for the General Counsel filed briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE PARTIES International Rice Milling Co., Inc., a Louisiana corporation with its principal office and plant at Crowley , Louisiana, operates a rice mill . In connection with its operations during 1946, it purchased 153,101 barrels of rough rice , of which approximately 9 percent was received from points outside the State of Louisiana. During the same year , it processed 16,935,900 pounds of clean rice , of which approximately 77 percent was shipped to points outside the State of Louisiana. American Rice Milling Co , Inc., a Louisiana corporation with its principal office and plant at Crowley, Louisiana, is engaged in the operation of a rice mill. In the course and conduct of its operations during 1946, it purchased 230,135 barrels of rough rice, of which approximately 7.31 percent was received from points , outside • the- State of -Louisiana. During the same year , it processed 24,855,668 pounds of rice, of which 19,258,100 pounds were shipped to points outside the State of Louisiana. Louisiana State Rice Milling Co., Inc., a Louisiana corporation with its prin- cipal office at Abbeville , Louisiana, is engaged in the milling of rice and operates mills at Abbeville, Crowley, and Rayne, Louisiana In connection with the opera- tion at its three plants during 1946 , it purchased 1,187,327 barrels of rough rice, of which approximately 20 percent was received from points outside the State of Louisiana . During the same year , it processed 130,803,500 pounds of rice, of which approximately 90 percent was shipped to points outside the State of Louisiana. Joseph Dore, Sr., doing business as Supreme Rice Mill has his principal office at Crowley, Louisiana , where he is , engaged in the operation of a plant for milling rice. In connection with his operations in 1946, he purchased 300,000 barrels of rough rice of which approximately 20 percent was received from points out- side the State of Louisiana . During the same year, he processed 33,000,000 pounds of rice, of which approximately 95 percent was shipped to points outside the State of Louisiana. 1 - "Monte Loving, an individual doing business as Loving Rice Mills , has his prin-, cipal office at Crowley, Louisiana, where he operates a plant for milling rice. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 365 In connection with his operations during the year of 1946, he purchased 180,- 247 barrels of rough rice, of which 47,204 barrels were received from points out- side the State of Louisiana. During the same year, he processed 20,000,000 pounds of rice, of which approximately 98 percent was shipped to points outside the State of Louisiana. Kaplan Rice Mills, Inc, a Louisiana corporation with its principal office and plant at Kaplan, Louisiana, is engaged in the milling of rice. In connection with its operations during the year 1946, it purchased 500,000 barrels of rough rice, of which approximately 50 percent was received from points outside the State of Louisiana. During the same year, it processed 50,000,000 pounds of rice, of which approximately 60 percent was shipped to points outside the State of Louisiana. Texas and New Orleans Railroad, a Texas corporation and an operating sub- sidiary of the Southern Pacific Railroad, is engaged in the business of transporting freight and passengers in the State of Louisiana. In connection with its business, the Texas and New Orleans Railroad, herein called the Southern Pacific owns and operates railroad equipment, rights-of-way, tracks, switches, public sidings, and public team tracks in and around Crowley, Rayne, and Abbeville, Louisiana. It transports and handles goods, articles, and commodities shipped to and from the respective plants of International, American, Louisiana State, Supreme, and Kaplan, at Crowley, Rayne, Abbeville, and Kaplan, Louisiana, for and on behalf of these companies and others. Guy A Thompson, a resident of St. Louis, Missouri, is a duly qualified Trustee of the property of the New Orleans, Texas and Mexico Railroad Company by virtue of an order of the U. S District Court for the Eastern Division, Eastern Judicial District of Missouri in the proceedings entitled "In the Matter of Mis- souri Pacific Railroad Company, Debtor," Docket No. 6935. As such, Thompson operates the' properties of the New Orleans, Texas and Mexico Railroad, herein called the Missouri Pacific. The Missouri Pacific owns and operates railroads, railroad equipment, rights-of-way, tracks,, switches, public sidings, and public team tracks in acid around Crowley, Louisiana. It transports and handles goods, articles and commodities shipped to' and from the respective plants of International, American, Louisiana State, Supreme, and Loving, at Crowley, Louisiana, for and on behalf of these companies and others., Paul T. Doerle, Pauline A Davant, Thelma B. Doerle, Frances C. Doerle, Har- old E. Doerle, Paul A. Doerle, and Robert L. Doerle are copartners doing Busi- ness as The Sales and Service House in New Iberia, Louisiana, and are engaged in the business, among others, of selling feed and grain. The Sales House purchases and handles goods, articles, and commodities from Kaplan. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No 201, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the com- plainants. It has never been certified by the Board as the statutory representa- tive of any employees of the complainants. II. THE UNFAIR LABOR PRACTICES 5 A. The rice milling industry in general Crowley, Louisiana, is the center of the rice industry of the state, and is the site of 13 or 14 rice mills. Rice, which is planted in the spring months from " Unless otherwise noted , the, findings in this section are based upon substantially uncon- troverted evidence. 833396-50-vol 84-27 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March to May, is harvested in September, October, and November. During these fall months, the rice mills work at peak capacity, drying, milling, and pack- aging rice. Because of limited storage facilities in most mills, it is necessary during the peak season for the rice to move as rapidfly'as possible through the milling process. Some mills cease production operations at"the end of the fall peak season ; others carry on such work until about March when they shut down until' summer. In the suhuner, some mills resume limited operations The milling industry i's thus seasonal in' nature. B. Organizational activities •of the respondent The respondent, a general local admitting to membership eligible employees of the rice mills and other industries in Crowley and surrounding area, commenced its organizational activities among employees of the complainants,in November 1946. The campaign was directed locally by Milton G J. Broussard, president and business agent of the respondent, and by Paul Kuhns, who was secretary and treasurer of a local of International Brotherhood of,Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L, in Baton Rouge, Louisiana, and who came to Crowley to assist in the organization and campaign of the respondents In February 1947, the respondent by letter, requested each of the complainants to recognize it as,the collective. bargaining. representative of the employees of each complainant 7 Thereafter, various negotiations ensued between the respondent and the respective complainants. In general, the, com- plainants requested that the respondent establish proof of its,claim to majority rrepresentation. With Kaplan, negotiations proceeded to the point that Kaplan agreed to accept a card check as a means of establishing the respondent's major- ity status, but no further steps, were taken by the respondent.' With Louisiana . State, the respondent agreed to enter into a card check, which was held in late February or early, March 1947, but failed to establish the respondent's majority status. None of the complainants ever recognized the respondent as the collee- tive bargaining representative of their employees or entered into a contract with it. The respondent has never been certified, by the Board as the statutory repre- sentative of the,employees of any complainant C. The strike and picketing by the respondent 1. At the mills of the complainants On September 3, 1947, the respondent instituted a strike, pursuant to the authorization previously given by its membership at a regular, meeting, at Inter- national and American and at the Crowley mill of Louisiana State. On the ° A letter sent by the respondent to'Louisiana' State in February 1947, was signed by Kuhns as "Secretary Treasurer Local #5 and'liusmess Manager Local $l: 201." The record establishes and it is found that'Broussard and Kuhns were agents of the respondent 7Harvey E Fuselier, manager of Supreme, denied that.he had. ever. received any com- munications from the respondent and testified that if Joseph Dore, Sr , owner of Supreme, had received any letters from the respondent, he would have given them to Fuselier and that Dore had denied receibine' any'such"correspondence. Dore did not testify Kuhns, on the other hand, stated at the hearing that the respondent requested recognition from each of the complainants Copies of these letters were not produced at the hearing. On the issue of request for recognition, other mill, owners at first denied that the respondent made such requests but later corrected their' testimony and stated'that the requests had been made. Although this conflict in'evidence is, not particularly vital to the determina- tion of the issues of the case, upon the entire record, the undersigned believes and finds that the,respondent did, in fact request statutory recognition of Supreme. INTERNATIONAL BROTHERHOOD OF TEA1VISTERS,' ETC. 367 same day, the respondent sent the following telegram to TInternational,-Amer- ican, and Louisiana State : I ' This is to officially advise you that undersigned committee has been selected by a majority of your employees to represent them in the present work stoppage and all matters pei taining to collective bargaining. We stand ready to meet you at your convenience and can be contacted at our office by telephone number 559. LEO CARTER.' MILTON G. J. BROUSSAiin. PAUL KUHNS. On September 4 and 6, 1947, respectively, the respondent extended the strike to Louisiana State's mills at Rayne and Abbeville. Supreme and Loving were struck on September 5 and 17. Less than a majority'of the non-supervisory pro- duction and maintenance employees of each mill participated in the strike, and all mills continued to operate throughout the strike. The respondent established picket lines at the struck mills, patrolled by between 1 and 4 strikers. From the outset of the strike at some mills, the picket lines on public thoroughfares ex- tended across tracks of the Missouri Pacific and Southern Pacific. Within a short time after the strike began, the pickets carried placards each bearing one of the following legends and the name of the respondent : This is a picket line. Respect it. Do not cross it. This job is unfair to Local 201, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L. This job unfair to organized labor. High cost low pay blues. 2. At the railroads Although the picket lines at some mills crossed the tracks of the Missouri Pacific and Southern Pacific servicing some of the mills, such activity in Septem- ber and early October did not deter the railroad crews from performing their duties in switching cars to and from the'mills. Despite the strike, the mills con- tinued substantially normal operations. On September 15, 1947, the respondent sent the following letter to Andrew G. Lacour, a conductor for the Southern Pacific and chairman of the grievance committee of the Brotherhood of Railroad Trainmen, Morgan Lodge 317, herein- after called the Brotherhood, to which many of the employees of the railroad be- longed : This is to notify you after a duly conducted strike ballot, the workers of the following Rice Mills who are members of our organization, voted unan- imously to strike. - The Mills now affected are • La. State Rice Milling Co, Inc, Abbeville, La. La. State Rice Milling Co, Inc., Rayne, La. La. State Rice Milling Co, Inc., Crowley, Pa. Liberty Rice Mill, Kaplan, La. Simons Warehouse ? Kaplan ? La. Supreme Rice Mill, Crowley, La. International Rice Mill, Crowley, La. - 8It appears that Carter was also an agent of'the' respondent , participating in the organi- zational and strike activities of the respondent early in September 1947. 368 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD We request you to consider this official from the International Brotherhood of Teamsters Cheauffers [sic] Warehousemen & Helpers of America (A. F. of L.) Local Union #201 and are asking you to respect our Picket Lines at the above mentioned Mills. The purpose of the strike is to gain recignition [sic] for the purpose of bargaining collectively and was the last step we could take after manage- ment failed to bargain collectively. Fraternally you's, H. G. J. BROUSSARD, Pres. & Business Agent, Teams. Local Union #201. About October 13, 1947, the tactics of the strikers changed in that as the trains approached the picket lines at the struck mills, the pickets would gather in a cluster on the railroad track, holding one of the placards toward the engine. When the engine approached within a few feet of the, group, they dispersed and allowed the train to perform the switching operations. On October 13, 1947, Broussard telephoned Lacour and said, according to the latter's credible testimony, "Mr. Lacour, if your men don't respect our picket lines, they are liable to be shot with buckshot " On the following day, Lacour and Raymond J. Boudreaux, a switchman for the Southern Pacific, and Hugh B. Swanzey, trainmaster for the Southern Pacific, went to Broussard's office at Crowley to discuss the strike situation. In response to Lacour's question, Brous- sard admitted that he had telephoned Lacour the night before and had made the statements related above. According to Lacour, Broussard "clarified the state- ment by saying that he could not be responsible for the men. As far as he was concerned, he just wanted to protect us and tell us that the men were just a little bit restless over the fact that we were switching and spotting ears." Swanzey testified credibly that "during the course of the conversation, there was men- tioned dynamite and Mr. Lacour asked Mr Broussard what he meant by that. Mr. Broussard told Mr. Lacour that the men were evidently prepared," although "Dir. Broussard told Mr. Lacour he had been instructed to hold violence to a min- imum." Swanzey further testified that "Dir. Broussard said that all he could do, to any member of his organization, if there was any violence, would be to suspend that member." 'The findings in his paragraph are based upon the credible testimony of Lacour and Swanzey In regard to these conversations, Broussard testified as follows on direct exami- nation by counsel for the respondent : Q. Did you hear the testimony of Mr. Lacour, relative to a telephone conversation with you in your office? A That's right. Q Was the testimony of Mr. Lacour substantially correct? A. Substantially , with several exceptions . I don't think all of the statements was clear as far as I am concerned. Q. Did you at any time threaten Mr. Lacour or his people? A. No, I relayed a message of a threat made over the phone to me to Mr. Lacour and his men. Q. When Mr Lacour came to see you the next day at your office , together with Mr. Boudreaux , and Mr. Swanzey , did you make it plain to Mr. Lacour at that time so he could understand that you were making no threats whatever to him? A. I think my message was very clear. Q. You say you never did threaten him? A. That's right. Boudreaux testified that on October 15, "The conversation was, [Lacour ] just asked him to remove his picket line because we were not interested in the strike and he wouldn't agree. That was about all of the conversation " According to Boudreaux , there was no mention of the threats made the night before. Boudreaux did not impress the undersigned as an r INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 369 - During the evening of October 15, 1947, Lacour received three telephone calls from persons who did not disclose their identity. The first two calls were to the effect, "Don't pick up any more cars." The message of the third call, made at 2 a. in., was "If our pickets won't stop you, dynamite will." Lacour informed the train crews of the railroads of these threats and the Brotherhood instructed its membership that in performing their duties, each member should use his own dis- cretion in determining whether it was safe to cross the picket lines: About October 15, 1947, the respondent placed a picket line on the passing tracks of the Southern Pacific at Kaplan, Louisiana, serving Kaplan and two other business concerns. The picket line was between 300 and 400 feet west of Kap- lan's property. However, none of Kaplan's employees was on strike.10 The train crews of the Southern Pacific refused to pass the picket line and service Kaplan. The pickets at the Abbeville plant of Louisiana State also began to gather in groups on the Southern Pacific spur tracks leading to the mill when trains were in the yards about October 13. On October 15, as a train approached to enter the plant of Louisiana State at Abbeville, a picket came from the group on the track and gave a note to the engineer of the train. The crew refused to cross the picket line. About the same time, the respondent engaged in similar picket- ing activities on the Southern Pacific's spur tracks leading to the Rayne plant of Louisiana State and the train crews refused to enter the mill. At Crowley on October 15, 1947, the respondent also intensified its picketing activities by placing groups of pickets, ranging in number between 15 and 30, at various points on tracks of the Southern Pacific and Missouri Pacific servicing the mills involved herein. In some instances, the groups of pickets on the tracks were in the immediate vicinity of the mill being picketed. But in others, the cluster of pickets was some distance removed. For example, the group picketing the Missouri Pacific tracks at Supreme was 150 yards from, Supreme's property and was effective in stopping the train crew from performing switching for Louisiana State, whose mill was some 400 yards from the picket cluster. The train crews refused to pass the picket lines at Crowley on October 15. Although the train crews were permitted by an arrangement between the railroads and the respondent 'to enter the struck mills and remove loaded cars on October 16, the crews thereafter refused to cross the picket line for the duration of the picketing. A further consequence of their refusal to pass the picket lines was the cessation of service to mills who were not involved in the labor dispute but whose plants were located at points on the Missouri Pacific and Southern Pacific especially reliable witness Inasmuch as his testimony conflicts with that of both Lacour and Broussard, it is clear that Boudreaux did not recall all the details of the conversation on October 15 In view of the fact that about October 13 and thereafter the respondent changed its picketing tactics and the pickets began to cluster in groups on the tracks of the Southern Pacific and Missouri Pacific when trains approached, as well as the undersigned's observation of the witnesses, the undersigned does not credit Broussaid's testimony that he did not make threats of violence to Lacour Rather, upon the entire record, the testimony of Lacour and Swanzey is credited on this issue. 10 The complaint alleged that the respondent called a strike of, the employees of Kaplan on or about September 5, 1947. The record fails to sustain this allegation., Clarence J Montgomeiy, Jr , vice president of Kaplan, testified credibly and without, substantial contradiction that none of his employees participated in a strike in September or October 1947 , but that pickets of the respondent appeared at the tracks of the Southern Pacific servicing Kaplan and other industries about the middle of October. The pickets carried various signs, one being "This job unfair to" the respondent . They did not picket the plant of Kaplan proper until about October 22, when the respondent was enjoined from picketing the railroads by the Louisiana State District Court. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tracks between the struck-and picketed mills" The Missouri Pacific and South- ern Pacific, rendered services to the struck mills thereafter, by, operating I trains manned by supervisors and officials who took over the operation of the trains at the point, where the picket lines crossed the tracks, entered the mills, performed the necessary switching operation, removed loaded cars, and then returned the trains to the operating crews after passing the picket lines.12 ,.In some instances by special arrangement with the respondent, the crews were permitted to pass the picket lines to render services to companies not involved in the dispute 13 Two of the mills obtained cars-by moving them into their mills themselves from the point at which- the pickets crossed the tracks and at which the.train crews left the car. From October 16 until the picketing of,the railroad ceased about October 22, some of the complainants loaded their finished products by truck into railroad freight cars on "team tracks," which are siding tracks of the railroad located on, their property for the general use of the public, in receiving and sending mer- chandise by freight In • each instance, however, as soon as the. complainants commenced to load such cars, the respondent placed a picket line on the team track between the car and the switch leading tiom the team track • Such picket lines were a considerable distance from the struck mills. For example, the Crowley mills of Louisana State and Supreme, were each about 500'yards from 1 he team track. The regular crews of the railroad refused to cross the picket lines to remove the. cars loaded by, the complainants. J n some instances, the crews removed cars loaded by persons other than the complainants and in others the team tracks were serviced by trains operated by supervisors and officials of the railroad. i , The record establishes that the railroad crews failed to cross the picket lines on and after October 15 because they feared for their safety,,both on and off the job, particularly in view of the threats communicated,by Broussard to Lacour. Charles'Frejean, a-brakeman for the Southern Pacific,, testified credibly that on October 20, 1947, when he resumed his duties near the picket line after officials of the Southern -Pacific, had taken the train through the picket line to bring out loaded cars at Louisiana State, one •of the pickets in the group at the railroad tracks said "that he had a good mind to kick" Frejean off the track. • 3., As to the Sales House As previously related, the respondent established a picket line on the Southern Pacific tracks servicing Kaplan about the middle of October. On October 21, 1947, about 5: 30 p. m., Charles Boutier and Arthur F. Gregory, truck drivers for u'For example, Lawrence L. Brown , general manager of the Rice City. Mill Co. at Crowley, testified' credibly, and' without contradiction that between October 14 and 22, the regular crews of the Southern Pacific and Missouri Pacific rendered no services to his mill. ' 12 When the supervisors and officials of the railroad took the trains through the picket lines, the pickets continued 'their same activities.' That is, they remained ' on the track until the locomotive was almost upon them before stepping off the track . In one instance, when a locomotive was being 'coupled to a loaded ca'r, a picket remained in the space between the'car and locomotive until forcibly removed by a special agent of the Southern Pacific. 13 Kuhns testified that the respondent did not attempt to disrupt deliveries by the rail- roads to industries other ' than the mills herein involved and that when such deliveries were to be made, the respondent would remove the pickets or issue passes to the train crews. He admitted , however, that no statement of this general policy was given the railroads and that the pickets were not removed or passes were not issued until the railroads brought each individual case to the attention of the respondent. INTERNATIONAL BROTHERHOOD. OF TEAMSTERS , ETC. 371 the Sales House, appeared at the Kaplan, plant to obtain some rice or bran for the Sales House. According to the credible testimony of Gregory, the following incident occurred when they approached the plant of Kaplan: When [we] got up there and" was driving into the mill, we met a crowd of fellows walking down by the tracks and as we approached they bade us to stop. . . . They formed a line across the road and walked back toward the truck and we stopped. They asked us where we were going. We said we were going to Kaplan, going to get some rice. They said don't you know we got a strike on. . . . We didn't know it and they said you can't go because the strike is on. You will have to go back. We agreed to that so he asked Charles Boutier, if he had driver's license. He said he had one. "Don't let nobody else drive your truck." We agreed to that. So we simply started to turn around and this fellow spoke rather rough.' I asked him why he spoke that way, and he said, "That's all right, go ahead." We went back to the highway and we stopped at the highway. Charles got out and went to the mill across the street and a fellow by the name of Mr. Montgomery [vice president of Kaplan] came forth. He . . .. came to the truck and asked me was we on our way to the mill. We said we were, and told him what- the strikers . . . told'us. So he said, "You want the order?" I told him, yes, but I am not the driver, you will, have to see the driver about that. So by thdt,:time Charles came back to the truck and he spoke to Charles about it. . . . He told us to -go down one block and go back to the rice mill and he got in the truck with us: . . . So as we neared the track, the fellows left from across the way' from where we were, running on the track, and we got there. They asked us,to stop or something; making a,sign. We didn't hear -what they said. We did not stop and Mr. Montgomery got out of the truck and walked on the front right side of the truck with his hand on the fender and told us to come on. We drove on across the tracks. As we crossed the tracks the fellows threw rocks at the truck and from the lights of the truck we could see the rocks passing in front by Mr. Montgomery.' Mr: Montgomery stuck his head inside the cab, to keep the rocks from hitting him, I imagine, and we proceeded on to the mill. Q. Did you hear the rocks hitting the truck? A. Yes, sir. , Q. Were these the same men who had stopped you and turned you around and sent you back? . • A. Yes, sir. , Q Were they white fellows? , A. All white: Q.• They, told, you, they "were on strike. . A. Yes, sir. , Montgomery testified that Gregory's' version of the incident was substantially correct, that rocks were thrown at Montgomery by 'the strikers, and that he recognized "practically all of them because I know them, they were residents of Kaplan," although at that time none of the group was employed ^ by Kaplan! He further testified that in respect to the incident "there was no picket line because this group had no banner or anything to that effect. Just a congregation of men on the street," but, that earlier in the day the group had carried signs and placards used by the respondent. In view of the fact that the respondent had established a picket line on ihe'Southern Pacific tracks near 'the mill of Kaplan, 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the group approached the truck of the Sales House from the vicinity of the Southern Pacific tracks, that the remarks addressed by the group to the Sales House truck drivers identified the group' with the picketing activities of the "respondent, and that the 'respondent introduced no evidence in regard to the incident, the undersigned finds .that the group who stopped the Sales House truck when it first appeared at Kaplan's plant and who attempted to halt it on its second appearance were pickets of the respondent. There remains for consideration-the question of whether, the respondent was responsible for the activities of these pickets under the ordinary, principles of the law of agency. Generally speaking, a labor organization is responsible for its agents' acts of unfair labor practice (1) when the acts have been specifically authorized, (2) when, though unauthorized or even expressly forbidden, they have been committed within the scope of employment of the agents, or (3) when they have been subsequently ratified by the'labor organization." In the opinion of the undersigned, the activities of the pickets in respect to the Sales House drivers are attributable to the respondent on the "scope. of employment" theory. That is, the -pickets were presumably authorized to patrol the railroad tracks leading to the Kaplan mill with the purpose of attempting to dissuade the railroad 'employees from making deliveries to the mill and from taking out loaded cars from the mill. Such patrolling required the pickets of the respondent to encounter employees of employers neutral to the. dispute-between the respondent and, the complainants under circumstances likely to create dissidence between the two groups. It is clear that in such a setting, the blockade of the road lead- ing to the mill by the pickets. and the1 use, of force by the pickets in the course of their. patrol' near the picket line, as detailed above, were, incidental to the authorized patrol and should reasonably have been expected by the respondent when it established' the picket line near the Kaplan mill" The undersigned accordingly finds that'the stopping offthe Sales House truck drivers and the use of force•in connection with the-stoppage were within the "scope of the employ- ment" of the pickets as agents of the respondent and that such activities are attributable to the respondent. 4. The Injunctions ' On October 22, 1947, pursuant'-to' the- petition'-of. the Missouri Pacific, Paul Debaillon, judge of the Fifteenth Judicial District Court of the State of Louisiana, issued it preliminary"injunction whereby the respondent was -enjoined from "interfering with" the Missouri Pacific "in conducting its -business as a common carrier and in particular in moving cars to and from its switch tracks leading into the plants of" American, International, Supreme, Loving, and Louisiana State and in "moving cars to and from its public loading tracks'or public team tracks" in Crowley. Upon the issuance cof• the preliminary injunction, the respondent ceased its picketing activities at the tracks of the. Missouri Pacific and Southern Pacific. However, it continued to picket the mills of the complain- ants until the latter part of 1947. On February,17, 1948, upon the consent and stipulation of the General Counsel and the respondent,, Ben C. Dawkins, Judge, of the District Court of the United "14 See Restatementrof Agency, § 82,'83, 93,'100, 212, 216; 218 , 219,'228, 230 See also Section 2 (13) of the Act: ! r15 As a matter, of fact;' the activities of these pickets , were analogous , to the tactics employed by the respondent at other times during the strike. For example, the respondent's threats of violence made by the employees of the railroads should they continue to pass the picket lines, followed by mass ' picketing of the tracks of 'the railroad. INTERNATIONAL BROTHERHOOD, OF, TEAMSTERS, ETC . 373, States for the Western District of Louisiana, issued a preliminary injunction, which, in brief, enjoined the respondent from committing any acts alleged in the complaint to be violative of the Act. D. Conclusions 1: As to the respondent's special defenses The respondent initially contends that the complainant's allegations of viola- tion of Section 8 (b), subsections (4) (A) and (4) (B), are "insufficient in law," insofar as the ' respondent's activities respecting the railroads are, con- cerned, because the Act's definitions of the terms "employer" and "employee" specifically exclude from the scope of the Act, respectively, "any person subject to the Railway Labor Act" and "any individual employed by an employer subject to the Railway Labor Act."" That is, the respondent argues that the railroads and their employees are excluded from the terms "employer" and "employee" by the Act's definitions and that any activities of the respondent in respect to them cannot be held to be violative of the Act. The legislative history of the Act is not completely and directly determinative of the argument raised by'the respondent, although it does indicate that the primary purpose of excluding railroad employers and railroad employees from the scope of the terms "employer" and "employee" was to preserve the principle enunciated in the earlier National Labor Relations Act, 49 Stat. 449, that the statute would not directly regulate the relationship between the railroad and their employees, who were subject to an analogous labor relations act, namely the Railway Labor Act. Thus, the report of the Joint Study Committee on Labor Relations 14 stated as follows in respect to the definition of the term "employee": The changes in the definition of this term are as follows . .. . (c) The exemption of employees of employers subject to the Railway Labor Act is to make it perfectly clear that in providing remedies from unfair labor practices of unions and their agents it was not intended to include such employees. In respect to this section, Senator Robert Taft stated in the Congressional Record," I want to'point out that railway labor has never been covered by the Wagner Act; it has always been covered by the Railway Labor Act, which provides a somewhat different procedure. We see no reason to change that situation, because there were no abuses which had arisen in connection with the operation of the Railway Labor Act. In general, we' confined our amend- ments to the bill to acts which, from evidence before the committee, were specifically shown to be abuses. Clearly, the manifest, intent of Congress in excluding the railroads and their employees from the definitions of "employer", and "employee" was to insure that neither would be, governed by the terms of the Act but would still be subject to the regulations of the Railway Labor Act. For example, the activities of neither the railroads nor their employees might be held to be,unfair labor practices under the Act. The exemption of the railroads and their employees being positive and direct as to,the,regulatory features of the Act, it does, not necessarily follow 11 See Section 2 (2) and'(3) ' ]z Senate Report No 105 on S. 1126, pp. 18, 19. 18 93 Cong Rec. 6658. -1 1 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Congress intended by the reference to "employer" and "employee," to exclude railroads and their employees from the purview of Section 8 (b)• (4). That Congress did not intend to exclude railroads' and their employees is mani- fest by the language of Section 8 (b) (4), which, as pertinent to the instant proceeding, reads as follows : It shall be an unfair labor practice for a labor organization or its agents . . . to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring . . . any em- ployer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manu- facturer, or to cease doing business with any other person. [Emphasis supplied.] Elsewhere in Section 8 of the Act, when the word "employer" is used it is preceded by the indefinite article "an" a total of 7 times, and twice by the article "the." In subsection (4) of Section 8.(b), however, the modifying adjective "any" is used in connection with the word "employer" a total of 6 times. In Section 8 of the Act, such usage is confined solely to subsection (4) and the proviso thereto. Contracting the usage of the adjective "any" in connection with the word "em- ployer" in subsection (4) with the use of the indefinite article-"an" elsewhere in Section 8, gives-rise to the inference that,Congress intended by the word "any" to embrace the class of, employers as a whole and not merely those within the definition of employer set forth. by Section 2 of the Act. That such was the Congressional intent is established, in the opinion of the undersigned, by the phrase in subsection (4) (A), "any employer or other person" The word "person" is defined in Section, 2' as including "one or more individuals, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankriiptcy, or receivers." The word "person" therefore embraces many if not all classifications excluded from the definition of the word ','employer" in Section 2 (2). Obviously, the definition,of "person" would include the railroads of the instant proceeding. Since the words "any employer" in the introductory portion of subsection (4) and, the words "any employer or other person" in paragraph (A) of subsection (4) refer, to the same employer, the undersigned construes the, latter phrase to be^a controlling amplification of the meaning of the earlier phrase, `;any employer." In view of the usage and meaning of the words "any" and "or other person" in Section 8 (b), subsection (4), the undersigned concludes that the railroads, are employers within the meaning of Section 8 (b), subsection (4). This conclusion is further buttressed by the Congressional intent, evidenced in the committee reporf's'and debates in the Congress, that the purpose of Section 8 (b), subsections ('4) (A) and (4) (B), was to remove a particular obstruction loosely'' termed "the secondary' boycott," to the free - flow of goods in interstate commerce. Nowhere in the Congressional history of'the'Act is there any intima- tion that Congress did-not'intend that Section 8 (b) "subsections (4) (A) and (4)' (B), should not apply,t& a situation such as the instant 'proceeding, where the railroads, neutrals to the primary dispute between the respondent and the comb plainants, became involved in the controversy through activities of the respondent. On the contrary, the prevailing intent,of the statute,is to remove such obstruc- tions and to protect commerce from such injury, impairment, or interruption. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 375 Acceptance of the position advanced by the respondent would remove from the ambit of Section 8 (b), subsections (4) (A) and (4) (B), the industry possibly most directly and extensively concerned with commerce, namely, the vast rail- road transportation system, would violate the clear intent of Congress in enact- ment of the section, and would to a considerable extent vitiate the Act. In addi- tion, such acceptance would create an illogical hiatus in the law obviously' not in- tended by Congress. That is, activities of the respondent directed toward certain employers within the definition of Section 2 of the Act would be violative of Sec- tion 8 (b), subsections (4) (A) and (4) (B), yet the same activities when di- rected to one of the employers exempt under Section 2 of the Act would not be a violation. In the instant case the respondent's activities in respect to the Sales House would be violative of the Act, but the same activities directed toward the railroads would not be violative of the Act, thereby creating a situation whereby the respondent's own wrongdoing would inure profitably to its benefit. Obviously, such an interpretation of Section 8 (b), subsections (4) (A) and (4) (B), would encourage the extension of disputes to railroads and their employees, creating an effect on commerce antipodal to that intended by Congress. In addition, the construction urged by the respondent as to the meaning of the words "any employer" would, if accepted, create still another hiatus in the law when applied to'the proviso to Section 8 (b). The proviso reads as follows: That nothing contained in this subsection (b) shall be construed to make unlawful' a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are en- gaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize' under this Act. [Emphasis supplied. ] If the respondent's argument were accepted, it would deny the protection of the proviso to those employees otherwise protected by the statute who refused to cross a picket line established around the premises of a railroad. In view of the foregoing considerations, the undersigned concludes and finds that the railroads and their employees are not exempt from the scope of Section 8 (b), subsections (4) (A) and, (4) (B) of the Act. Asa second defense, the respondent, argues, in effect, that the complaint should be dismissed because it was based upon a charge improperly filed , by the com- plainants, who as "the principal parties" in the dispute between the respondent and the complainants "are not entitled to bring the case of secondary boycott." The respondent contends that charges of violation of Section 8 (b); subsections (4) (A) and (4) (B), can be made only "neutrals" or third persons not directly involved in the primary dispute between the respondent and the complainants- i. e., the railroads or the Sales House herein-and that the complainants being primarily and directly concerned in the labor dispute,have no, standing to file charges of secondary boycott by the respondent against the railroads and the Sales House. This contention is clearly without merit. The Act itself'contains_no restric- tions or Qimitations as to the identity or interest of persons filing charges 19 and the Board's Rules and Regulations specifically state that "A charge that any person has engaged in or is, engaging in any unfair labor practices affecting com- 39 Section, 10 (b) of the Act reads, "Whenever it is charged that any person has engaged in or is engaging in any, such unfair labor practice, the Board . shall have power ,to issue 'and cause to be served upon such person a complaint stating the charges in that respect. . . . ' ' 11 11 ., 376' DECISIONS OF NATIONAL LABOR RELATIONS - BOARD' coerce` may lie made by' any person." 20 In 'discussing the same provisions of the Wagner' Act, 49 Stat. 449, the Supreme'Court stated : The Act required a charge, before the,Board may issue a complaint, but omits any requirements that the charge be filed by a labor organization or an employee . . The charge; is not proof. It merely sets in motion the machinery of an inquiry., When a Board complaint issues, the question is only the truth of its accusations., The charge does not even serve the purpose of a pleading. Dubious character, evil or unlawful motives, or bad faith of the informer, cannot,deprive the Board of its jurisdiction to conduct the inquiry.21 The undersigned accordingly finds no merit in the respondent's argument that the proceeding was improperly initiated upon charges of the complainants." Thirdly, the respondent raises a constitutional question, stating, "In addition we take the position that strike activity and picketing in this case as a whole are not sufficient as a matter of law to demonstrate any threats or coercion .. . But the evidence shows at best a moderate exuberance on the part of unauthorized individuals and . . . under the doctrine of the Meadowmoor case, it is not sufficient to infringe on basic constitutional rights of free speech." Insofar as this statement may be considered to be an argument that Section 8 (b), (4) (A) and (4) (B), of the Act is violative of the free speech guarantees of the Constitution of the United States, it is clearly,without,merit, for it is inappropriate for the Board as an administrative agency to pass,upon questions regarding the con- stitutionality, of Congressional enactments. The undersigned accordingly assumes the constitutionality of the section 2. As to the merits Turning then to a consideration of the facts set forth above in relation to the prohibitions of the Act„the pertinent portions of the Act alleged by the complaint to have been violated by the respondent read as follows,: It shall be an unfair labor practice fora labor' organization or its agents to engage in, or to induce or' encourage the employees of any employer to engage in, a strike' or a concerted refusal in the course of their employment to use, manufacture, process,' transport, or otherwise handle or work on any goods, articles, materials , or commodities or to perform any services, where an object' thereof is: (A) forcing or requiring . . . any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manu- factures, or to cease doing business with any other person ; ( B) forcing or requiring 'any other employer to recognize or bargain with a labor organi- zation as the representative 'of his employees unless such labor' organization has been certified as the representative of such employees under the provisions of Section 9 .. . 2O•National Labor Relations Board Rules and Regulations , Series 5,, See. 203.9. n National Labor Relations Board v. Indiana & Michigan Electric Company, 318 U. S. 9,17,18. 29 See also Matter of Washougal Woolen Mills, 23 N. L. 11. B. 1. '' 23 See Matter of Rote -Form Corset Company, Inc., 75 N. L. R. B. 174 , wherein the Board stated, "Such questions will be left to the courts. 'In the absence of any court decision to the contrary , the Board assumes that the Act as amended does not violate any provision of the Constitution of the United States, as alleged by' the petitioner." ,' INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 377 The purpose of. the; respondent's primary strike against the, complainants admittedly was. for recognition. It seems clear that a strike for such a purpose is not in itself an unfair labor practice under the Act and :t the activities of the respondent in the early period of the strike were not violative of the Act, if the somewhat desultory picketing of the Southern Pacific and Missouri Pacific tracks at a portion of the mills be disregarded."' In regard to its desire for statutory recognition, the record establishes that the respondent` had, never 'been certified by the Board as such representative for any of the complainant's em- ployees; and no substantive or probative evidence in support of its majority claim was introduced at the hearing by the respondent?5 The record clearly supports an inference that the strike activities of the respondent in September and early October manifestly failed to achieve the desired purpose of recognition of the respondent as bargaining representative of the complainants' employees. , Indeed, 'the employees 'of the railroads continued to service the complainants, and the mills continued their operations at near, if not, full, capacity and without any 'serious inconvenience. ' In mid-October, the strike tactics of the respondent admittedly changed. The desultory picketing' of the railroads was intensified.- As trains approached, groups of pickets ranging in some instances as high as 15,or 30,, gathered on the tracks, holding placards toward the locomotive., Contemporaneously with the change in picketing activities in respect to the railroads servicing-the com- plainants, Broussard by telephone informed Lacour, an officer in the labor organi- zation representing many of the employees of'the railroads, that if the employees of the Southern Pacific and Missouri Pacific did not respects the picket lines, 'they might "be shot with buckshot." On the following day, this threat. was confirmed and amplified by Broussard in a pesonal interview with Lacour, Bou- dreaux, and Swanzey. Thus, Broussard "clarified" his telephone conversation -with Lacour by informing them that "he could not be responsible for the men" and that "the men were just a little bit restless over the fact that [the employees of Southern Pacific and Missouri Pacific] were switching and spotting cars." He furthermore explained, when dynamite was mentioned, that-"the mdn were evidently prepared." Broussard's warning that "all he could do, to any member 'of his organization, if there was any violence, would be to suspend that member," intensified the threats, in the opinion 'of the undersigned, indicating the lack of control by the respondent of its members. The result of these threats, of which the railroad employees were informed 'by Lacour, and the intensified picketing on the tracks of the railroads, was the concerted refusal on the part of the train crews to cross the picket lines. Their refusal, as amply established by the record; was based upon their fear of vio- lence or reprisal upon themselves or their property by the respondent if they crossed the picket lines. The motivation for the respondent, in -making the 24 In view of the conclusions reached infra as to the respondent 's threats to the rail- road employees and its concentrated picketing activities at the railroads in October, the undersigned finds it unnecessary to determine' whether Broussards' fetter to Lacour and the picketing of the railroads in the early stages of the strike were violative of the' Act 25 Kuhns testified generally that the respondent represented a majority of the employees of each complainant . at the time the strike began . No documentary evidence in the way of membership cards or records were introduced in evidence . In the opinion of the under- . fined, Kuhns' testimony standing alone is insufficient to establish the majority status of the respondent at each' of the comblainant's mills. It is therefore found that the, record does not establish that the respondent was the collective bargaining representative of the majority of the employees of any complainant. - - - 378 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD threats of violence against the trainmen and iri intensifying' the picketing activi- ties at the railroad tracks is shown by the following testimony of Kuhns, agent of the' respondent: Our full intention when we was picketing those mills and the railroad tracks was to perform any operation by which the trains would stop and not service those mills. Thus, it follows that, in the • words of the Act, the respondent did by the threats of violence and.by its mass picketing activities did "induce or encour- age the employees" of the Southern Pacific and Missouri. Pacific, neutrals to the primary dispute between the respondent and the complainants, "to engage in, a strike or a concerted refusal in. the course of their employment- to .. . transport, or otherwise handle or work on any goods, articles, materials, or com- -niodities or to perform any services" with the avowed object (1) of "forcing or requiring" the Southern; Pacific and the Missouri Pacific "to cease . . . han- dling, transporting, or otherwise dealing in the products of" the complainants or "to cease doing business with" the complainants and (2) of "forcing or .requiring" the complainants "to. recognize or bargain with" the respondent as "the representative of" the'complainants' employees at a time when the respond- ent was not' a certified representative of, such employees. The undersigned ac- -cordingly concludes and finds that, by the threats of violence on the part of Broussard and by the intensive and,mass picketing on the tracks of the Mis- souri Pacific and the Southern Pacific, the respondent has violated Section 8 (b), subsections (4) (A) and (4) (B), of the Act.'' Similarly, the incident between'the respondents pickets and the drivers for the Sales House was violative of the Act. When the drivers initially approached the mill of Kaplan, the respondent's pickets at the tracks of the Southern Pa- cific came to the street, formed aline across • the street, stopped the truck, in- formed, the drivers that a strike was in progress and that they could not enter necause "the strike is on," and ordered, them to retrace their course. When the drivers returned to the mill with Montgomery, vice president of Kaplan, the pickets again assembled on the roadway leading to the mill and attempted forcibly by the throwing of stones to halt the progress of the truck into the mill. ' The entire incident clearly establishes that: the respondent, again in the words of the Act, did "induce or encourage the employees" of the Sales House, a neutral to the primary labor dispute between the respondent and the complainants, "to engage in, a strike or concerted refusal in the course of their employment to . . . transport, or otherwise handle or work on any goods, articles, material, or commodities or to perform any services" with the avowed object, as shown by Kuhns' testimony, (1) of "forcing or requiring" the Sales House "to ,cease . . . handling; transporting, • or otherwise. dealing in the products of" Kaplan or "to cease doing business with" Kaplan and (2) of "forcing or re- quiring" Kaplan "to recognize or bargain with" the respondent as "the repre- sentative of" Kaplan's employees at a time when the respondent was not a cer- tified representative of such employees. The fact that the respondent was not ultimately successful in its attempt to dissuade the drivers of the Sales House from entering Kaplan's mill is immaterial. Inducement or encouragement of the Sales House employees is clearly, shown. The undersigned finds that by this conduct the respondent violated Section 8 (b), subsections (4) (A) and (4) (B), of the Act. 21 The applicability of Section 8 (c) will be discussed infra. INTERNATIONAL- BROTHERHOOD OF-TEAMSTERS, ETC. 379 As mentioned previously, the respondent urged that its conduct fell within the constitutional guarantee of free speech, and the undersigned has found no merit in the contention, inasmuch as the constitutionality of the Act is assumed. How- ever, under the terms of the Act, the respondent might well raise its defense of free speech on the basis of Section 8 (c), which provides: The expressing of any views, argument, or opinion, or,the dissemination thereof, whether in written, printed,, graphic, or visual form, shall not con- stitute.or be evidence of an unfair labor practice under any of the'provisions of this, Act, if such expression contains no threat of reprisal or force or promise of benefit. Assuming arguendo that this proviso applies to Section 8 (b) as well as Section 8 (a), it is clear that it affords the respondent no protection for the respondent's activities in respect to the employees of the railroads and of the Sales House. As previously • found, in urging these employees to respect its picket lines, the re- spondent expressed threats of reprisal and force as to the railroad employees and engaged in acts of reprisal and force, namely stoning of the truck, in respect to the Sales House employees. It is therefore found that the acts engaged in by the respondent in violation of Section 8 (b), subsections (4) (A) and ( 4) (B), are beyond the ambit of the protection of Section 8 (c). III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section IT, above, occurring in con- nection with the operations of the complainants set forth in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY It has been found that the respondent has violated Section 8 (b), subsections (4) (A) and (4) (B), of the Act. Although the strike of the railroads has pre- sumably ceased, there is a possibility that similar acts may be repeated in the future by, the respondent.n It will therefore be recommended that the respondent cease and desist from inducing or encouraging the employees of the railroads and the Sales House or of any other employer to engage in a strike or a concerted refusal in the course of then employment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any services, with the object (1) of forcing or requiring the railroads, the Sales House, or any other employer to cease using, selling, handling, transport- ing, or otherwise dealing in the products of, or to cease doing business with, the complainants•or (2) of forcing of requiring the complainants to recognize or bar- gain with the respondent as the representative of the complainants' employees 27 In summing up his position at the close of the hearing, counsel for the respondent stated, "Now, passing over all that, here is one thing we'd like to stress to the Trial Exam- iner. If the Trial Examiner recommends any order in this case, which is based upon the language of the Statute and anything further, we will be nowhere by having had this hearing There are going to be future organizational campaigns and I think they will have the question of representation come up this very next season and it is our position that if the order is going to enforce and apply the law, it should be so written that we may be under our right altogether and not be left to, any legal interpretation to arrive at those rights " 380 DECISIONS OF, NATIONAL'LABOR'RELATIONS BOARD unless the respondent has been certified as the statutory ' representative of such employees . , • - + ' , ' I , f"-. - At the conclusion of the hearing in summing up his position ,'counsel for the respondent stated, Now, if any order is written , we are requesting the Examiner to save to us the language of that order, so that we may hate clearly the right to advertise the facts we deem relevant to our dispute ' at the scene of the job and that if our pickets are-not excessive in number ' and do' not interfere with egress and ingress, they 'should be 'permitted' at 'all reasonable public places and if they are at the scene of any given plant which is under dispute and in reason- able proximity thereto, the right to, picket should not be impaired merely because a railroad at that point crosses. , T „ , • . We ask this .Examiner that if am order be issued , that it not impair the right that we have to solicit by peaceful means the support of anybody who may be disposed to give support. ; . . We should like to have an order in which the pickets have the right to parade on public property. We do not claim any right to standing in the middle of the tracks where the railroad is exercising its right of, easement to come through. Counsel for the complainants and the General Counsel, on the other hand, argue that all picketing of the properties of the railroads should be enjoined, the theory of the General Counsel being , in reliance upon'the Meadovnnoor case 29 that "the picketing is inseparable from unlawful conduct." , The undersigned does not agree The facts of the instant case are ,not comparable to those of the Meadowmoor case, in that the unlawful conduct of the respondent herein consisted principally of threats of violence followed by the equivalent of mass picketing of the railroads and the stopping and the stoning of the Sales House . drivers. In the opinion of the undersigned, the threats and the act of violence were episodic and isolated and the picketing did not occur in. such a background of violence and was not so enmeshed with acts of violence, that the one cannot be separated from the other. The undersigned will accordingly, n'ot recommen"d that the respondent be re- strained from all picketing of the railroads ; and nothing in the recommended order shall he construed as restraining any future action by 'the respondent which may be legal under Section '8 (b), subsections ( 4) (A) and (4) (B). Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes th 'e'following: CoNcLusioNs oF'LAw 1. International Rice Milling Co., "Inc.': American Rice Milling Co., Inc ; Loui- siana State Rice.Milling, Co , Inc. ; Joseph Dore, Sr., doing business as Supreme Rice ' Mill ; Monte Loving, an individual doing business as Loving Rice Mills ; and Kaplain Rice Mills, Inc, are engaged in commerce within the meaning of Sec- tion 2, subsections (6) and (7), of the Act. 2. International Brotherhood of. Teamsters; Chauffeurs, Warehousemen and Helpers of America, Local No. 201,'AFL, is a labor organization within the mean- ing of'Section 2 (5)^ 'of the Act.• - 3 By inducing or encouraging the employees of Texas and New Orleans Rail- road, of New Orleans, Texas and Mexico Railroad Company and Guy A. Thomp- son, as trustee, and'of,The Sales and Service House to refuse' ih the course of their employment'fo transport goods, articles, materials, or commodities to,,or 21 Milk Wagon Drivers Union, etc. V. Meadowmoor Dairies, Inc., 312 U. S. 287. INTERNATIONAL : BROTHERHOOD , OF TEAMSTERS, ETC. 381 from, or to perform any services for, International Rice , Milling, Co , Inc.; Ameri- can Rice Milling Co., Inc.; Louisiana State Rice Milling Co , Inc ; Joseph Dore, Sr., doing business as Supreme Rice Mill ; Monte Loving , an individual doing business as Loving Rice Mills; and Kaplan Rice Mills , Inc, with the object of forcing or requiring Texas and New Orleans Railroad; New Orleans, Texas and Mexico Railroad Company and Guy A. Thompson , as trustee ; and The Sales and Service. House to cease using, selling , handling, transporting , or otherwise, deal- ing in the , products of, or to cease doing business with , such milling companies, International Brotherhood of Teamsters , Chauffeurs, Warehousemen'and Helpers of America , Local No. 201, AFL has engaged in and is engaging in -unfair labor practices within the meaning of Section 8 ( b), subsection (4) (A), of the Act. 4. By inducing or encouraging the employees of Texas and New Orleans Rail- road, of New Orleans , Texas and Mexico Railroad Company and Guy A. Thomp- son, as trustee, and of The Sales and Service House to refuse in the course of their employment to transport goods, articles, materials , or commodities to or from, or to perform any services for, International Rice Milling Co , Inc. ; Ameri- can Rice Milling . Co., Inc.; Louisiana State Rice Milling Co., Inc. ; Joseph Dore, ,Sr., doing business as Supreme Rice Mill ; Monte Loving, an individual doing business as Loving Rice Mills ; and Kaplan Rice Mills, Inc ., with the Abject of forcing or requiring such milling companies to recognize or bargain with Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local No. 201, AFL, as the representative of the employees of such mill- ing companies ,at a time when such labor organization had not been certified by the Board as the representative of such employees, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and -Helpers of America, Local No 201, AFL, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b), subsection (4) (B), of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2, subsections (6) and ( 7),, of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America' , Local No. 201 , AFL, its officers and agents shall: 1. Cease and desist from : (a) Inducing or encouraging the employees of Texas and New Orleans Rail- road, of New Orleans, Texas and MexicoRailroad Company and Guy A. Thomp- son, ' as trustee ; of The , Sales and Service House, or of any other employer to engage in a strike or a concerted' refusal in the'course of their, employment to 'use, manufacture; process, transport, or otherwise handle or work on ' goods, articles, materials, or commodities, or to perform any services with the object of forcing or requiring Texas and New, Orleans Railroad; New Orleans , Texas and Mexico Railroad Company and Guy A. Thompson , as trustee '; The Sales Service House ; or ' any other employer- to` cease using, selling, handling , transporting, or otherwise dealing in the products of, or to cease doing business , with International Rice Milling 'Co., Inc. ; Anierican Rice , Milling Co., Inc ; Louisiana State Rice 'Milling,' Co:;'`Inc'I; i Joseph ' -Dore;'r"Sr., 'doing business - as` -Supreme ' Rice, Mill; Monte Loving, an individual doing business as Loving , Rice'Mills; and Kaplan Rice Mills;! Tnc : `; /, - < .. , 1 , , (b) Inducing or encouraging the employees of Texas .and New Orleans Rail- road, of 'New Orleans , Texas'and Mexico Railroad,Compa'ny and Guy A'. .Thomp- 853396-50-vol 84-28 382 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD son, as trustee , of The- Sales and Service House, or of any other employer to engage in a strike or a concerted refusal in the course of their employment to use, manufacture, process , transport, or otherwise handle or work on goods, articles, materials , or commodities , or to perform any services with the object of forcing or requiring International Rice Milling Co, Inc.; American Rice Milling Co., Inc. ; Louisiana State Rice Milling Co, Inc ; Joseph Dore, Sr., doing busi- ness as Supreme Rice Mill ; Monte Loving , an individual doing business as Loving Rice Mills , and Kaplan Rice Mills, Inc ., to recognize or bargain with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of Americo, Local No. 201 , AFL, as the representative of the employees of such companies unless such labor organization has been certified by the Board as the representa- tive of such employees. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act: (a) Post in conspicuous places at the business office of International Brother- hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Local No. 201, AFL, at Crowley , Louisiana , where notices or communications to mem- bers are customarily posted, copies of the notice attached hereto as an appendix. Copies of the notice,• to be furnished by the Regional Director for the Fifteenth Region, shall, after being signed by an official representative of Local No . 201, be posted by the respondent immediately upon receipt thereof and maintained by it for a period of sixty ( 60) consecutive days thereafter. Reasonable steps shall be taken by the respondent to insure that said notices are not altered , defaced, or covered by any other material; and ' (b) Notify the Regional Director for the Fifteenth Region in writing within ten (10 ) days from the date of the receipt of this Intermediate Report; what steps the respondent has taken to comply therewith. It is further recommended that, unless the respondent shall within ten (10) days from the receipt of this Intermediate Report notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of -the National Labor Relations Board, Series 5, effective August 22 , 1947, any party may within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations , file with the Board , Rochambeau Building , Washington, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all mo- tions or objections ) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report. Im- mediately upon the filing of such statement of exceptions and/or • briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of , the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid -Rules and Regulations, the findings , conclusions , recommendations , and recom- mended order herein , contained shall, as provided in Section 203.48 of said Rules INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 383 and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections and exceptions thereto shall be deemed waived for all purposes. Dated June 2.5, 1948. APPENDIX FREDERIC B. PARKES, 2nd, Trial Examiner. NOTICE To ALL MEMBERS OF INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 201, AFL Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members that : WE WILL NOT induce or encourage the employees of Texas and New Orleans Railroad, of New' Orleans, Texas and Mexico Railroad Company and Guy A Thompson, as trustee, of The Sales and Service House, or of any other employer to engage in a strike or concerted refusal in the course of their em- ployment to use, manufacture, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any services with the object 1. Of forcing or requiring Texas and New Orleans Railroad,; New Orleans, Texas and Mexico Railroad Company and Guy A. Thompson, as trustee; The Sales and Service House; or any other employer to cease using, selling, handling, transporting; or otherwise dealing in the products of, or to cease doing business with International Rice Milling Co., Inc ; American Rice Milling Co., Inc. ; Louisiana State Rice Milling -Co., Inc'; Joseph Dore, Sr., doing business as Supreme Rice Mill; Monte Loving, an individual doing business as Loving Rice Mills ; and Kaplan Rice Mills, Inc., or 2. Of forcing or requiring International Rice Milling Co., 'Inc. ; Ameri- can Rice Milling Co., Inc. ; Louisiana State Rice Milling Co., Inc.; Joseph Dore, Sr., doing business as Supreme Rice Mill; Monte Loving, an indi- vidual doing business as Loving Rice Mills ; and Kaplan Rice Mills, Inc., to recognize or bargain with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 201, AFL, as the representative of the employees of such 'companies unless Local No. 201, has been certified by the National Labor Relations Board as the representative of such employees. , INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 201, AFL, Labor Organization. By:----------------------r-------------------------------------- (Title of Officer) Dated --------------------------- This notice must remain posted for sixty (60) days from the 'date hereof, and must not be altered, defaced, or covered by any other material.