General Warehousemen & Employees Union, Local 636

856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Birmingham General Drivers Local Union No. 612, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Arlin H. Harrison, Clayton Bragg, J. R. Haggard, Walter Raybon, James A. Ray, and James F. Ryals, thereby discouraging membership and activity in the above-named Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. At all times material herein, the following employees of Smith Transfer Company, Inc., have constituted and now constitute a unit appropriate for the purposes of collective bargaining : all truck drivers, excluding office and clerical employees, all other employees, guards, and supervisors as defined in the Act. 5. On May 19, 1951, and, at all times thereafter, Birmingham General Drivers Local Union No. 612, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, was and now is the exclusive repre- sentative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing on May 19, 1951, and at all times thereafter to bargain collec- tively with said Union as the exclusive representative of all its employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (5) of the Act. 7. By said acts and other acts Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL and ROY STONE TRANSFER CORPORA- TION. Case No. 6-CC-60. August °L8, 1952 Decision and Order On December 20, 1951, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent, herein sometimes called Local 636, had engaged in and was engaging in certain unfair labor practices, and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner' made at the hearing and finds that no prejudicial error was committed. The 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers In connection with this case to a three-member panel [Members Houston , Styles, and Peterson]. 100 NLRB No. 137. GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 857 rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions and modi- fications : We agree with the Trial Examiner's conclusion that the Respondent violated Section 8 (b) (4) (A) of the Act 2 In adopting this conclu- sion, however, we do not rely, as the Trial Examiner did, solely on the Respondent's instructions to Union Steward Treleani, on August 13, 1951, that, as long as Stone's trucks were being picketed, the employees of Frank & Seder of Pittsburgh, Inc., herein called Frank & Seder, were not to handle the merchandise being delivered by Roy Stone Transfer Corporation, herein called Stone. Rather, we rely also on Treleani's instructions to employee McAleer,3 on August 13, that, if Stone's trucks were being picketed, McAleer was not to handle the furniture from Stone's trucks or even to allow Stone's drivers to place the merchandise on the receiving platform 4 The Trial Examiner's refusal to predicate his finding of a violation of Section 8 (b) (4) (A) on Treleani's instructions to McAleer was based upon his findings that McAleer, although ordinarily a rank-and-file warehouse employee, assumed the status of a representative of management when, upon occasion, he substituted for Assistant Foreman and Receiving Clerk Leindecker and exercised the latter's authority to accept or reject mer- chandise on behalf of Frank & Seder; and that Treleani's instructions to McAleer were given for McAleer's guidance in his capacity as a management representative, i. e., when he substituted for Leindecker as receiving clerk, and not for his guidance as a rank-and-file employee. Although we conclude, as did the Trial Examiner, that any statements made by the Respondent's agents to Leindecker cannot be violative of Section 8 (b) (4) (A), we base our conclusion solely upon Leindecker's status as a supervisor, and not upon any authority he may have pos- sessed, in connection with his duties as a receiving clerk, to accept or reject merchandise on behalf of Frank & Seder.5 McAleer, in substi- tuting for Leindecker, did not assume any of the latter's supervisory 2 Like the Trial Examiner, we conclude that the proviso to Section 8 (b) Is not appli- cable to the instant case and that, therefore , the Respondent's alleged desire to respect Local 249's picket line does not constitute a valid defense of its conduct. However, we base our conclusion as to the inapplicability of this proviso primarily on the fact that there was no refusal to cross a picket line or to enter upon the premises of another employer involved herein. 'These instructions were clearly within the scope of Treleani 's authority as union steward and are therefore attributable to the Respondent . The Howland Dry Goods Com- pany, at al, 85 NLRB 1037. 4 See Wadsworth Building Company, Inc., at al, 81 NLRB 802, at 818. 5 To adopt the Trial Examiner 's reasoning that Leindecker's authority, as a receiving clerk, to accept or reject merchandise on behalf of Frank & Seder bestowed upon Lein- decker the status of a representative of management , and to follow this reasoning to its logical conclusion, would result in finding that any rank-and-file employee with responsi- bility to make decisions on behalf of his employer or to act in the interests of his employer would similarly be a representative of management. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authority, but only his duties as receiving clerk. We find that, as a receiving clerk, McAleer was not acting as a representative of man- agement. Accordingly, 'we conclude that Treleani's statement to McAleer on August 13, whether or not it was intended for McAleer's guidance in the future, when he next substituted for Leindecker, con- stituted inducement and encouragement of an employee, and that, by virtue of these instructions, together with those issued by the Re- spondent to Treleani on the same date, the Respondent violated Sec- tion 8 (b) (4) (A) of the Act. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, General Ware- housemen & Employees Union, Local 636, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, its officers, representatives, and agents, shall : 1. Cease and desist from inducing or encouraging the employees of Frank-&- Seder of Pittsburgh, Inc., or of any other employer, to engage in a strike or a concerted refusal in the course of their em- ployment to handle or work on goods or to perform any services for their employer, where an object thereof is to force or require Frank & Seder of Pittsburgh, Inc., or any other employer or person, to cease doing business with Roy Stone Transfer Corporation, Martinsville, Virginia. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Post at its business office in Pittsburgh, Pennsylvania, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Sixth Region, shall, after being duly signed by an official representative of the Respondent, be posted by the Respondent immediately upon re- ceipt thereof and maintained by it for a period of sixty (60) con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent otherwise violated Section 8,(b) (4) (A) of the Act, be, and it hereby is, dismissed. 6In the event that 'this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 859 Appendix A NOTICE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT induce or encourage the employees of FRANK & SEDER of PITTSBURGH, INC., or of any other employer, to en- gage in a strike or a concerted refusal in the course of their employment to handle or work on goods or to perform any services for their employer, where an object thereof is to force or require FRANK & SEDER OF PIT rSBURGI-I, INC., or any other employer or person, to cease doing business with Roy STONE TRANSFER COR- PORATION, Martinsville, Virginia. GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CIIAuF- FEURS, WAREHOUSEMEN AND HELPERS or AMERICA, AFL, Labor Organization. By --------------------------------------------- (Title of Officer) Dated -------------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE On August 17, 1951, Roy Stone Transfer Corporation, Martinsville, Virginia, filed a charge with the Board's Sixth Regional Director, alleging violation of Section 8 (b) (4) (A) of the Labor Management Relations Act, 61 -Stat. 136, by Local 636, Respondent herein, and by Local 249 of the same International Union. On October 16, 1951, Stone filed an amended charge of similar import against Local 636 alone. Upon these charges the General Counsel of the Board caused his complaint to be issued on October 16, 1951, against Local 636 alone, alleging the commission of the aforesaid unfair labor practices. Copies of the charges and complaint, and notice of hearing thereon, were duly served upon the Respondent, Stone, and Frank & Seder. The complaint alleges the following violation of Section 8 (b) (4) (A) Since on or about August 1, 1951, and at various times thereafter, Respond- ent, by its officers, agents, representatives and members, engaged in,'and by orders, directions, instructions and appeals induced and encouraged em- ployees of Frank & Seder at its Pittsburgh, Pennsylvania, warehouse to engage in, strikes or concerted refusals in the course of their employment to use, process, transport, or otherwise handle or work on goods, articles, materials, or commodities, or to perform any service, an object thereof being to force or require Frank & Seder, and other employers, to cease doing business with Stone. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice a hearing was held before me at Pittsburgh, Pennsylvania, on November 1, 1951. All parties were represented by counsel, participated In the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue the issues orally upon the record, and to file briefs and proposed findings. A memorandum brief was received from the General Counsel on November 16, 1951. During the hearing the Respondent stated its answer denying the commission of unfair labor practices. Upon unopposed motion of the General Counsel at the conclusion of the evidence, the pleadings were amended to conform to the proof. Motions to dismiss made by the Respondent at the close of the case based upon various legal and factual grounds are disposed of by the following findings and recommendations. On December 12, 1951, the General Counsel filed a motion to correct the tran- script of record at page 16, line 1, to read "it was between 12: 30 and 1 o'clock," in place of "it was between 1: 30 and 2 o'clock," as it presently reads. The motion is hereby granted: Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF STONE AND FRANK & SEDER Roy Stone Transfer Corporation is a Virginia corporation having its principal office and terminal in Martinsville, Virginia, and maintaining offices in Rich- mond, Virginia, Baltimore, Maryland, Rahway, New Jersey, and Philadelphia, Pennsylvania. - Stone is engaged in the transportation of freight by motor vehicle and is licensed to engage in such business by the Interstate Commerce Commission. Stone, in conducting its afore-mentioned business, operates its motor vehicles in and through 15 States of the United States, including Virginia, West Virginia, North Carolina, South Carolina, Pennsylvania, Maryland, Georgia, New York, New Jersey, Ohio, Indiana, Illinois, and the District of Columbia. The gross revenue derived by Stone from the operation of its above-described business during its past fiscal year was in excess of $1,500,000 included in which were shipments of furniture from Martinsville, Virginia, to Frank & Seder at Pittsburgh, Pennsylvania, fees for said shipments being valued in excess of $25,000. Frank & Seder is a Pennsylvania corporation engaged in the operation of a retail department store at Pittsburgh, Pennsylvania. In the operation of its said business, Frank & Seder during its past fiscal year purchased materials, supplies, equipment, and merchandise for resale valued in excess of $8,000,000, of which approximately 60 percent was received from points outside the Com- monwealth of Pennsylvania. During the same period, Frank & Seder sold mer- chandise valued in excess of $13,000,000, of which approximately 3 percent was shipped by it to points outside the Commonwealth of Pennsylvania or sold to customers located outside the Commonwealth of Pennsylvania. Frank & Seder employs an approximate total of 800 employees. Stone employs an approximate total of 110 employees. Stone, Frank & Seder, and the Respondent stipulated, and it is found, that Stone and Frank & Seder are engaged in commerce within the meaning of the Act, and subject to the jurisdiction of the Board. GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 861 II. THE LABOR ORGANIZATION INVOLVED The Respondent , General Warehousemen & Employees Union Local 636, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization affiliated with the American Federation of Labor, and admitting to membership employees of Frank & Seder. James A. Porter, president of Local 636, is an officer, agent, and representa- tive of the Respondent. III. THE UNFAIR LABOR PRACTICES Roy Stone Transfer Corporation is a truck carrier. Frank & Seder is n. Pittsburgh, Pennsylvania, department store. In the course of its trucking busi- ness, Stone transports new furniture from manufacturers in the State of Vir- ginia to Frank & Seder in Pittsburgh, who ultimately sell it to the public. At the time of the instant events, there was a collective bargaining agreement in existence between Stone and a Roanoke, Virginia, local-No. 171-of the AFL International Brotherhood of Teamsters. This contract contained the follow- ing clause, among others : Section 12 (j) : Road chauffeurs shall not make pickups or deliveries ex- cept as hereinafter noted. Road chauffeurs shall not make pickups or de- liveries at any point where Local Unions affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America have jurisdiction, except at Company [Roy Stone Transfer Corporation] or connecting line terminals, unless an individual and special agreement exists between the Company and the Union involved. There is no evidence of any "individual" or "special" agreement between Stone and any Pittsburgh local of the Teamsters' International. Despite this provision of the contract, Stone required his road chauffeurs to unload their trucks at their destinations ; or at least at Frank & Seder's ware- house in Pittsburgh. At the same time Frank & Seder had a collective bargaining contract with Pittsburgh Local 636 of the same International covering Frank & Seder's ware- housemen . The provisions of this agreement are not disclosed in the record. All the action involved took place in or concerning one of Frank & Seder's two warehouses . The involved warehouse is located at 17th and Pike in Pittsburgh, which is about 1 mile from Frank & Seder's store-located at 5th and Smithfield in downtown Pittsburgh. None of Frank & Seder's other employees or opera- tions is directly concerned. Another Pittsburgh local of the Teamsters International is also involved- Local 249. So far as any affected employees are concerned, Local 249 had no apparent contractual or representative relations with either Stone or Frank & Seder. Local 249 and Local 636 are sister locals of the Teamsters ' International, and both are members of the Teamsters' Joint Council. Stone is the charging party. No charge was filed by Frank & Seder. The instant case arises out of the delivery of furniture by Stone to Frank & Seder's Pike Street warehouse. When Stone's trucks, manned by his drivers, or road chauffeurs, appeared at the warehouse, the drivers were requested by Local 249 members, who had jurisdiction at that point, to hire Local 249 men to unload the trucks. When Stone's drivers refused, their trucks were picketed 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as they stood before Frank & Seder's warehouse. The Local 249 members involved are called "city men." " The gist of the controversy is whether Local 636 refused, or induced Frank & Seder's warehouse employees to refuse, to handle the goods on the picketed trucks ; and, if so, whether Local 636's action in that regard is violative of Section 8 (b) (4) (A). There is no allegation in the present complaint or charges of violation of Section 8 (b) (4) (D). Nor is there any allegation of violation on the part of Local 249. The relevant occurrences are as follows : August 1 and 2, 1951 During the course of the afternoon of August 1, 1951, several Stone trucks arrived at intervals at Frank & Seder's warehouse. The warehouse is so located that a large truck backed up to the loading platform stands partly on Frank & Seder's premises, partly on a railroad siding, and partly on a public street. The warehouse employees receive and store merchandise. They do not unload it from the delivery trucks, however. That job is performed by the truck drivers. The latter deposit the goods on the platform, from which point it is removed by the warehousemen and distributed to appropriate places in the warehouse. As the first Stone truck approached the warehouse early that afternoon, it was stopped at the street corner by an unidentified person. The driver then came into the warehouse, made a telephone call to an unidentified number, and asked that a driver be sent out. Shortly thereafter, an unidentified person appeared, was given money by Stone's driver, and unloaded the truck. Sometime thereafter, still in the early afternoon, a second Stone truck driven by George Evans, a Stone driver, arrived at the warehouse. As Evans was preparing to pull up to the loading platform an unidentified person approached him and asked whether he was going to hire a "city man." Evans replied that he was not, saying that if he did he would have to pay for it out of his own pocket. The other man said that Evans would "have to hire one before [he] could get unloaded," and walked away. Evans then went into the warehouse and asked Anthony Leindecker, Frank & Seder's receiving clerk and assistant fore- man, and a member and former shop steward of Local 636, where the shipment was to be unloaded. Leindecker indicated a certain platform but said he could not accept the shipment "right then" and that Evans should not "unload it yet." Evans went back and sat in his truck. While he was sitting there, the man who had previously approached him appeared again, this time accom- panied by another unidentified individual. They reiterated to Evans that he could not unload unless he hired a "city man." During a succeeding interval of time of probably half an hour, Evans spoke to Leindeeker several times about unloading and on each occasion was told that Leindecker was "waiting for a telephone call." Evans' testimony is that "They were trying to get in touch with someone down around the union board, as I understood it." In the meantime, Leindecker told Evans he could not accept the furniture because he was "afraid it would draw a picket line around the warehouse and it would tie up all the stores and warehouses and not get anything in or out." Shortly thereafter another Stone truck arrived, the driver of which also de- clined to hire a city man. After a few minutes two unidentified individuals began to picket the two vehicles. The picketers walked back and forth in front I For a description of a somewhat similar dispute in Chicago, Illinois, see Direct Transit Lines, 92 NLRB 1715. GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 863 of the Stone trucks, presumably in the public street, carrying signs stating "Roy Stone unfair to organized labor." After the pickets appeared, Assistant Foreman Leindecker had a telephone conversation with Business Agent Bollhorst of Local 636, in which Leindecker asked Bollhorst whether the trucks should be unloaded. Bollhorst told him "not to unload them as long as the picket signs were there." 2 Leindecker then telephoned Jane Musser, Frank & Seder's service supervisor and Leindecker's superior. Musser's testimony, substantially corroborated by that of Leindecker, is that Mr. Leindecker said there were some Roy Stone trucks outside, and they were having trouble with them, and if these trucks were unloaded without hiring "city men," our warehousemen would not touch the merchandise. Leindecker also said, to quote Musser, that "he had talked to Mr. Bollhorst, and Mr. Bollhorst ... said if he [Leindecker] -unloaded the trucks without hiring [city men] our warehousemen would not handle the merchandise." Musser told Leindecker that she would contact Bollhorst, and she instructed Leindecker "not to do anything until [she had] called him back." Musser then telephoned Bollhorst who confirmed Leindecker's statements to 11'usser. When Musser pointed out that the dispute was solely between Local 249 and Stone and did not involve either Frank & Seder or Local 636, Bollhorst replied, "That's the way it is." Musser asked what she should do. Bollhorst's only suggestion was that Musser call Melvin J. Humphries, an official of Local 249. Musser then telephoned Humphries who told her that "the agreement was" that Local 036 would not touch the Stone merchandise unless the city men were hired, and that "that is the way it is going to be." Following those exchanges a three-way telephone conversation ensued between Frank & Seder, Evans, and Stone's dispatcher, Owens, in Martinsville. After some discussion Owens authorized the hiring of the city men, Frank & Seder to advance the money to Stone's drivers. Musser thereupon sent money to the ware- house. By this time three Stone trucks were tied up at the platform. Stone's drivers hired the city men, paying each of them $14.20, receiving receipts therefor on stationery of Local 249, and in due course the trucks were unloaded. On the following day, August 2, 1951, several more Stone trucks arrived at the warehouse and were apparently picketed. Again Musser sent out money to pay the city drivers, who were then hired, and these trucks were also, in due course, unloaded. August 13, 1951 Apparently there were no deliveries by Stone to Frank & Seder between August 2 and August 13. On the latter date, however, two Stone trucks arrived at the warehouse early in the morning. The drivers were approached by an unidentified individual and asked to hire a city man, but the drivers refused. The trucks 2 The findings as to Leindecker's conversation with Bollhorst are from Leindecker's testimony. Bollhorst was not a witness. In a signed statement given to an agent of the General Counsel on August 22, 1951, Leindecker stated that Bollhorst had telephoned him (Leindecker) and said that Local 249 was picketing, and that as long as the signs were up Local 636 members were not to unload the merchandise In his testimony, how- ever, Leindecker insisted that he had telephoned Bollhorst. There is no necessary incon- sistency. It is possible that Leindecker did call Bollhorst first and inquire as to what should be done, but that some interval of time elapsed before he received an answer. Note Evans' testimony to the effect that Leindecker was waiting for a telephone call from the Union. Both Leindecker's testimony and his statement are therefore credible as to this incident. In any event, I do not find it significant that Bollhorst may have called Leindecker first. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were thereupon picketed. Assistant Foreman Leindecker was not present when these trucks arrived. William McAleer, a Local 636 member and ordinarily a rank-and-file employee, but who regularly substituted for Leindecker when the latter was absent, was in charge of receiving that morning. After declining to hire the city man, the first Stone driver backed his truck into the platform and tendered the bill of loading to McAleer, who refused it, saying that he was sorry but "there was a picket sign out there." While awaiting the arrival of Lein- decker, McAleer sought out Shop Steward Treleani of Local 636, who was em- ployed in the warehouse as a cabinetmaker, and said "we are having the same old trouble downstairs." Treleani asked if Leindecker was there, and when McAleer said that he was not, Treleani said, according to McAleer, that he "didn't know what to do," that it was "too early to call the Union," and sug- gested they "wait a while and see what happened." Shortly afterward Leindecker arrived. He immediately telephoned Harold Seder, treasurer and store manager of Frank & Seder, and inquired as to what he should do. Seder instructed Leindecker to "take a chance" on accepting the goods and "see what happened." - Leindecker thereupon accepted the merchandise and the warehouse employees handled it without incident. At the same time Leindecker instructed McAleer that if the truck drivers put merchandise on the platform the warehousemen should accept it. Late that afternoon Local 636 President Porter and Bollhorst, its business agent, came to the warehouse and spoke to Leindecker and Treleani. Porter told Leindecker and Treleani, Leindecker testified, that "as long as the picket sign was up we shouldn't receive the goods." 8 Sometime during the same day, and presumably after the visit of Porter, Treleani told McAleer that "if the picket line was there . . . we weren't even allowed to let the driver push the merchandise on the platform. There is no evidence as to any occurrences after August 13, 1951. Conclusions The case presents the converse of the usual 8 (b) (4) complaint. Ordinarily the union having the dispute with the primary employer is the one charged with boycotting; the charge being that it seeks to spread the dispute to secondary employers. In the instant case, however, the union having the primary dispute- Local 249-is not a respondent, presumably upon the theory that its picketing of Stone's trucks at Frank & Seder's warehouse was primary and not secondary activity. See The Pure Oil Company, 84 NLRB 315; Schultz Refrigerated Service, 87 NLRB 502; cf. Sterhng Beverage, Inc., 90 NLRB 401. Local 636, on the other hand, had no dispute with either Stone or Frank & Seder as to the employment conditions of its members, except insofar as its interests might be deemed affected by the factors of identity of the disputing union, the relation between Stone's activities and Frank & Seder's business, the undoubtedly tangible but somewhat removed interest that one labor organization may have in the success of another's efforts on behalf of employees, and the operation of a philosophic taboo 3 The above finding as to Porter's statement Is based on Leindecker's testimony. Porter testified, as I understand his testimony (which is not altogether clear), that he told Leindecker and Treleani that "if anything hit the dock . . . they were to handle It." In his testimony, Porter characterized his statement to Treleani and Leindecker as a reaffirmation of Local 636's "former position " In view of the text of Treleani's statement to McAleer in their second conversation of that day (related hereinafter), and upon observation, I have concluded that Leindecker's version is to be credited. Treleani did not testify. Leindecker was a witness not unfriendly to the Respondent. GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 865 against the handling by union men of goods that have crossed a picket line. As I understand Section 8 (b) (4) (A) of the Act, none of these interests would ordinarily be of sufficient substantiality to transform any effort by Local 636 against Frank & Seder in the nature of boycotting into primary activity, or otherwise to legitimatize it. And the instant situation does not require a different result. , Assuming preliminarily ( and whether the assumption is valid will be later discussed ) that Local 636 induced employees of Frank & Seder to cease handling Stone's goods with an object of requiring Frank & Seder to cease business with Stone, I do not find that action defensible merely because Stone was apparently violating his contract with Local 171; and that but for such breach no dispute would have arisen. I reach this conclusion not without some misgivings. As has been seen, Stone contracted to have his chauffeurs refrain from making deliveries of goods at places where other Teamster locals had jurisdiction. Local 249 had jurisdiction at Pittsburgh. Under his commitment Stone had no right to compel his drivers to unload there, or to deprive Local 249 men of their right to do that work. Nevertheless he did so. Had Stone fulfilled his agreement there would have been no dispute , and consequently no need to set in motion the expensive processes of Government to resolve problems unneces- sarily raised by breach of collective agreement designed to eliminate them. It will also be 'noted that it is Stone who precipitated the dispute, and not Frank & Seder, who was its victim, who claims to be the aggrieved party here. The complaint was issued upon Stone 's charge. Frank & Seder filed no charges. It seems somewhat anomalous to grant relief under the statute to and at the sole insistence of a party whose evident breach of contract caused the entire dispute. But, on the other hand, if the Respondent violated the Act as a consequence of Stone's action , it would be questionable wisdom to overlook that offense. It is scarcely sound jurisprudence to ignore a specifically declared public duty and policy simply because the private hands which performed the merely mechan- ical task of setting the statutory machinery in operation are not altogether unsoiled. It is, after all, the public's right to effectuation of the purposes of the legislation ( here the prevention of secondary boycotts with their attendant harmful impact upon the general economy ) and not any private right of Stone, which is to be protected. The equitable doctrine of clean hands is not altogether apposite to the solution of a problem in which others than the participants have a real interest. It is true that private contract can affect the applicability of Section 8 (b) (4) (A) and legitimatize union action which would, in the absence of-contract, constitute a violation. An employer can bargain away the right of himself and all other employers to have their goods handled by his employees in a labor dispute. Thus, employer A, by inserting a clause in his contract with a union giving the union the right to refuse to handle "hot goods" can insulate from attack under Section 8 (b) (4) (A ) subsequent refusals by his employees to handle such goods coming from employer B. This is so even though employer A's action is without the joinder or apparent consent of employer B. In the case of Conway's Express, 87 NLRB 972, 982-983, the Board stated this principle thusly:_ ... there is nothing in the express provisions or underlying policy of Section 8 (b) (4) (A ) which prohibits an employer and a union from volun- tarily including "hot cargo" or "struck work" provisions in their collec- tive bargaining contracts, or from honoring those provisions. - 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here there is no evidence that Local 636's contract with Frank & Seder con- tains such a provision ; though if it did it would seem to constitute a complete defense. Whether a similar result would follow if the primary employer's (Stone's ) contract contained a clause authorizing secondary action against his goods is a question not presented by Stone's contract , and unnecessary to decide. The Conway case, however, represents the limit of the extent to which the Board has thus far gone in permitting secondary action to be validated by private contract. To hold that breach of agreement by the primary employer equally legitimatizes secondary pressure seems to me a step beyond precedent in what is essentially a realm of policy. The problem here is not made less troublesome by the existence of the now well-solidified principle that employees who concertedly breach their collective bargaining contract with an employer may be discharged without violation of the statute. N. L. R. B. v. Sands Alfg. Co., 306 U. S. 332, 344: "The Act does not prohibit an effective discharge for repudiation by the employee of his agree- ment, any more than it prohibits such discharge for a tort committed against the employer." An employee who engages in misconduct or unlawful acts loses the protection of the statute . Mackay Radio Co., 96 NLRB 740. Here, for all that appears to the contrary, Stone was in violation of Section 8 (d) of the statute. There is no evidence that he gave the requisite 60 days' notice before modifying his contract with Local 171. It is certainly a supportable argument that if employees can put themselves beyond the pale of the law by action contrary to its purposes, mutuality requires that the same principle be applied when an employer is the offender. The principle of outlawry , however, is not a contribution to the maintenance of law and order, Whatever might have been said about the Wagner Act, the present Act provides sanctions for violations on either side. Unlawful acts do not cancel each other out ; and if Stone breached the law the proper remedy is to pursue him for it ; not to let the union go. A "plague on both your houses" attitude may give color to our literature, but in law it is a reversion to the anarchy and private war which it is the purpose of a sound legal system to abolish. The judge who, Pilate-wise, washes his hands of a dispute because he disapproves the tactics of a participant, merely sends the disputants back to the town square for trial by combat, where others may be hurt, and does no service to the public peace. Private misdoing does not justify private and violent retaliation. A civilized society cannot exist on vigilante precepts, or on self-help principles of retribution for private or public wrong. However culpable Stone may have been , the case does not appear to involve an abuse of Board processes . Cf. Vaughn Bowen, 93 NLRB 1147 ; N. L. R. B. v. Indiana and Michigan Electric Co., 318 U. S. 9. It is therefore found that even if the dispute would not have arisen if Stone had complied with the provisions of Section 12 (j) of his contract with Local 171, that fact is not a defense here. We turn, then, to the merits of the complaint. The Status of Leindecker There is dispute as to Leindecker's status, the General Counsel contending that he is a rank-and-file employee ; the Respondent that he is a supervisor. Leindecker's title is assistant foreman and receiving clerk . He is in charge of the warehousemen and the receipt of goods. The entire warehouse staff con- sists of 8 warehousemen and 10 or 12 cabinetmen who work on the second floor. This warehouse, along with another at a different location, and various GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 867 other service facilities of Frank & Seder are under the supervision of Jane Musser, whose title is supervisor. Musser's headquarters is not at the ware- house, however, but at the store, which is some distance away. Top supervisor headquartered in the warehouse is Deshon, the foreman, conceded to be a super- visor. Leindecker is in charge of, directs, and is responsible for the warehouse- men. He has no authority over the eabinetmen, who are under the direction of Deshon. Three of the warehousemen under Leindecker have the title of head stockmen. Each is in charge of a particular department of stock. Leindecker shifts men between the various departments when necessary. Both Deshon and Leindecker are salaried employees. All other employees in the warehouse are hourly paid. When Deshon is absent, Leindecker regularly assumes complete charge of the warehouse. He has full authority to accept or reject merchandise When merchandise arrives Leindecker, ordinarily as- sisted by McAleer, or by another employee, Abbott, will usually physically move it from the platform to the elevator and send it upstairs to the stockroom, from which point it is handled by the stockmen. Including the paper work involved, Leindecker works beside the men about 65 percent of his time. All personnel action is effected by the personnel office, and supervisors only make recommendations. This is true even through Musser's level of authority. As I understand Musser's testimony, Leindecker makes recommendations with respect to the status or tenure of employees under him which are given effective weight. It is therefore found that Leindecker has effective authority to make recommendations respecting the status or tenure of employees, and respon- sibly to direct them This constitutes him a supervisor. But whether a super- visor or not, so far as the acceptance of merchandise is concerned, Leindecker has initial authority to accept or reject it. When acting in that capacity, there- fore, he is a representative of management-a status possibly shaded, but not affected, by his union membership. See Arkansas Express, 92 NLRB 255, where the Board said : In concluding that Gill and Pepper are supervisors we have considered, but find irrevelant, that both are members of the Respondent [union] and that Pepper handles union messages for his subordinates. Neither the definition of the word "supervisor" contained in the Act, nor the exclusion of super- visors from the term "employee" as used in the Act, provides for special treatment of union adherents. Being a supervisor, Leindecker is not an employee within the meaning of Sec- tion 8 (b) (4) (A). Conway's Express, 87 NLRB 972, 980: ". . . `supervisors' are not `employees' within the meaning of Section 8 (b) (4) (A)." See also Sealright Paoiftc Ltd., 82 NLRB 271; Arkansas Express, 92 NLRB 255. Induce- ment of management personnel to engage in a boycott is not violative of Section 8 (b) (4) (A). Arkansas Express, supra. In addition to being a supervisor, as receiving clerk Leindecker was also author- ized to accept or reject shipments on behalf of Frank & Seder. When acting in that capacity (and entirely apart from his supervisory status), Leindecker's ac- tions were the actions of management and not of Local 636. Any efforts by Local 636 to induce or require him to exercise his authority to reject shipments, whatever the Union's object, were therefore inducement of management, and not violative of the Act. If there were any doubt that Leindecker's actions in the instant case were taken in his capacity as an agent of management, it is removed by the following facts : (1) Leindecker's statement to Evans on August 1 to the effect that if he accepted the shipment on Evans' truck, Local 249 would picket Frank & Seder's other operations and tie them up. This is the reflection of a managerial and not a union motive; (2) Musser's adoption of Leindecker's actions 227260-53-vol. 100-56 0 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on-August 1, 1951, when she instructed him in their telephone conversation "not to do anything [about the Stone shipments] until I called him back"; ( 3) his request on August 13, 1951, of Treasurer Seder as to what he should do about the shipments; (4) his prompt compliance with Seder's direction to accept them; and (5) his instruction to McAleer on the same day to accept whatever goods the drivers placed on the platform. McAleer's action in refusing temporarily to accept the August 13 shipments until Leindecker arrived is also to be considered the action of Frank & Seder. Though ordinarily a rank-and-file employee, on that occasion McAleer was sub- stituting for Leindecker and exercising the latter's authority to accept or reject merchandise on behalf of Frank & Seder. To conclude that in such a circum- stance McAleer, in refusing to accept the goods, was acting as a union member on behalf of Local 636 in exercising business authority vested in him by manage- ment, requires an expertise in analysis available only in the psychologist's con- sulting room. It is also to be noted that McAleer was merely following the precedent established by his superior, Leindecker, on August 1, a precedent which does not appear to have been disapproved by any higher authority in Frank & Seder. In any event, McAleer was not an agent of Local 636. Finally, individ- ual refusal of union members to handle "hot goods" is not a violation of Section 8 (b) (4) (A), Arkansas Express, supra, and the cessation of work by one em- ployee is not a "strike." Gould and Preisner, 82 NLRB 1195. Treleani's statement to McAleer later in the day, at a time when McAleer had relinquished his managerial duties, to the effect that the merchandise should not be handled if a picket sign was up is, in the context of the incidents of that day, to be interpreted as a statement of union position for McAleer's guidance the next time he substituted for Leindecker, which he regularly did. It is therefore found that none of the conduct summarized in the above con- clusions constituted inducement or encouragement of Frank & Seder's employees by Local 636. However, Local 636 President Porter's statement to Union Steward Treleani on August 13, 1951, to the effect that merchandise should not be handled if a picket sign was up, falls into a different category. The statement was made to both Leindecker and Treleani. As to the former, a representative of manage- ment, it was not inducement and encouragement violative of the statute. As to Treleani, however, a rank-and-file employee and the normal conduit of union instructions to members employed in the warehouse, it was inducement and en- couragement. In the first place it induced Treleani in his capacity AS an em- ployee. In the second place, it was a communication to the employees through their immediate representative. That it was so given seems a reasonable in- ference from the fact that Porter chose to communicate it to Leindecker, man- agement representative, and Treleani, employee representative, jointly. It is consequently found that Porter's statement to Treleani on August 13, 1951, con- stituted inducement and encouragement of employees in violation of Section 8 (b) (4) (A) of the statute. Western Express Company, Inc., 91 NLRB 340, 341. The Respondent contends that there is no proof that an object of Local 636 was to force or require Frank & Seder to cease doing business with Stone. This contention is not sustained. Obviously any refusal by Frank & Seder's ems ployees to handle 'Stone's goods would necessarily result in the cessation of Frank & Seder's business with Stone. , It is further contended that any overtures by the Union to employees of Frank & Seder were directed to securing individual, and not, concerted, action. I find no persuasive evidence that Porter's statement to Treleani on August 13 contained any such qualification. GENERAL WAREHOUSEMEN & EMPLOYEES UNION, LOCAL 636 869 It is also asserted that there was no unlawful objective for the reason that the only motive for the Respondent's action was the presence of the Local 249 picket line. That such was the motive I have no doubt, but the fact does not constitute a valid defense. Whatever the reasons by which Porter was animated, his purpose had an unlawful objective: namely, requiring Frank & Seder to cease doing business with Stone. The proviso to Section 8 (b) (4) is inapplicable to the instant situation,' if for no other reason than because there is no evidence that any employees were engaging in a strike approved by their representative. It has been recognized by the Board and the courts that some inducement of employees to engage in secondary action is an inevitable, but legal, consequence of primary activity. That such incidental inducement is not unlawful does not, however, protect the secondary union if it responds to the overtures. Though it may ' seem somewhat anomalous to condemn the perpetrator of the secondary action, while excusing its procurer, that result is a compromise necessary to effect the intent of the statute. The only other choices are either to prohibit all primary activity because it may contain some secondary inducement, or to permit all secondary activity because it is merely a response to legal primary action. Both of the latter alternatives are contrary to the intent of Congress. Other issues raised by the Respondent, among them an assertion that its con- duct was protected free speech under Section 8 (c) of the Act, have been decided adversely by the Supreme Court. Electrical Workers v. N. L. R. B., 341 U. S. 694. That there is no evidence that Frank & Seder's employees actually engaged in a strike or refused to handle Stone's shipments after Porter's inducement is immaterial. It is the inducement and encouragement, not its success or failure, which is the gravamen of the offense. The Grauman Company, 87 NLRB 775. The allegation that Local 636 called a strike is unsupported by the record. There is no evidence that Local 636 took any strike action ; that any employee of Frank & Seder was notified that there was a strike ; or that they concertedly refused to handle Stone's goods. In fact, all the evidence indicates that the warehouse employees at all times performed their work in accordance with the directions of management. It is found that by inducing and encouraging the employees of Frank & Seder, through Local 636's president and authorized agent, Porter, on August 13, 1051, as previously described, to engage in a strike or a concerted refusal in the course of their employment to handle shipments of Roy Stone Transfer Corporation, with an object of requiring Frank & Seder to cease doing business with Stone, Local 636 violated Section 8 (b) (4) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Stone and Frank & Seder, 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 to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent, Local 636, has violated Section 8 (b) (4) (A) of the Act it will be recommended that it cease and desist therefrom and ' Provi5ed, That nothing in this subsection (b)) shall be construed to make unlawful a refusal by any person to enter upon the premises of any employer (other than his own employer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this Act." 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the affirmative action stated below, which it is found is necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and entire record in the case, I make the following : CoNCLusIoNs or LAW 1. General Warehousemen & Employees Union , Local 686, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, is a labor organization within the meaning of Section 2 ( 5) of the Act. 2. By inducing and encouraging employees of Frank & Seder to engage in a strike or concerted refusal in the course of their employment to handle ship- ments of Roy Stone Transfer Corporation , with an object of requiring Frank & Seder to cease doing business with Stone , the Respondent has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] GIMBEL BROTHERS , INC., and ALBERT E. LONGMAN UNITED DEPARTMENT STORE WORKERS OF Njiw YORK, LOCAL 2, DIsTRICT 65, AFFILIATED WITH DISTRIBUTIVE, PROCESSING AND OFFICE WORK- ERS OF AMERICA 1 and ALBERT E. LONGMAN. Cases Nos. 2-CA-1479 and 2CB_454. August 28,1952 Decision and Order On September 5, 1951, Trial Examiner Sidney L. Feiler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recom- mending that Respondent United Department Store Workers of New York, Local 2, herein called the Union , cease and desist from the unfair labor practices in which it was found to have engaged, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto . He also found that the Respondents did not engage in certain other unfair labor practices alleged in the com- plaint, and recommended dismissal of the complaint in those respects. Thereafter, the Respondent Union and the General Counsel filed ex- ceptions to the Intermediate Report. Respondent Gimbel Brothers, Inc., herein called Gimbel's, filed a brief in support of the Intermediate Report ; the General Counsel also filed a brief in support of his ex- ceptions. The Respondents' request for oral argument is denied because the record and briefs adequately set forth the positions of the parties. 1 The name of the Respondent Union appears as amended at the hearing. 100 NLRB No. 114.