Truck Drivers and Helpers Local Union No. 728

TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 399 Truck Drivers and Helpers Local Union No. 728 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO and Genuine Parts Company. Case No. 10-CC-141. November 8,1957 DECISION AND ORDER On August 9, 1956, Trial Examiner Lloyd Buchanan issued his In- termediate Report in the above-entitled proceeding in which he found that the Respondent Union had not engaged in unfair labor practices within the meaning of Section.S ,(b) . (4) (A) of the Act.' He recom mended, accordingly, that the complaint be dismissed. Thereafter, the General Counsel filed exceptions to the Intermediate Report to- gether with a supporting brief. The Board has reviewed the rulings of the Trial Examiner made- 'at the hearing and finds that no prejudicial error was committed.. These rulings are hereby affirmed. The Board has considered the. Intermediate Report, the exceptions and brief filed by the General Counsel, and the entire record in the case. It finds merit in the Gen- eral Counsel's .; exceptions . to the Intermediate Report for reasons, more fully indicated below, and hence adopts only those findings and, conclusions of the Trial Examiner as to which no exception has been, taken. 1. THE FRAME OF REFERENCE IN WIIICH THE CASE WAS INSTITUTED AND, LITIGATED, AND THE STRIKE ACTIVITIES OF THE RESPONDENT UNION AND. ITS OFFICIALS The instant proceeding was instituted to remedy a situation in which a large number of motor freight carriers operating out of- Atlanta, Georgia, found themselves forced to deny the use of their- transportation facilities to Rayloc,2 a manufacturer and shipper of goods into the stream of interstate commerce. They were placed in_ this position, because, inter alia, the carriers' employees-substantially- all of whom were members of the Respondent Union and covered by- "hot cargo" clauses in contracts between the carriers and the Union 3-_ branded as "hot cargo" the goods offered to the carriers by Rayloc, and refused, on a widespread scale extending to all the carriers, to interline or otherwise to "handle" such goods. The specific facts evidencing- 1 A copy of the Intermediate Report is attached to this Decision and Order. The term Rayloc refers to Genuine Parts Company (Rayloc Division), the Charging- •Employer. 3 The clauses we refer to as "hot cargo" clauses are described in the contracts as "pro- tection of rights" provisions. Their terms are quoted hereafter. Unless otherwise indi- cated, the term carriers, as used herein, has reference to carriers who were parties-to the," areawide "hot cargo" contracts here involved. . 119 NLRB No. 53. 400 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD the timing and nature of the refusal-to-handle action, and the way such action came about, are as follows : As a result of economic differences arising during the course of collective bargaining, the Respondent Union, as the representative of Rayloc's employees , called a strike of Rayloc's employees on March 12, 1956. On March 19, 1956, the Union established a picket line at Ray- loc's operations. Prior to such strike and the events here made the subject of complaint, Rayloc had its pickup and delivery work per- formed by a number of freight carriers in and around Atlanta. Most of such carriers employ members of the Respondent Union under areawide contracts containing union-shop provisions and the "hot cargo" clauses. The latter provides as follows : It shall not be a violation of this Agreement and it shall not be cause for discharge if any employee or employees refuse to go through the picket line of a Union or refuse to handle unfair goods. Nor shall the exercise of any rights permitted by law be a violation of this Agreement . The Union and its members, individually and collectively , reserve the right to refuse to handle goods from or to any firm or truck which is engaged or involved in any controversy with this or any other Union; and reserve the right to refuse to accept freight from , or to make pickups from or deliveries to establishments where picket lines, strikes, walk- out or lockout exist. The term "unfair goods" as used in this Article includes, but is not limited to, any goods or equipment transported ,- inter- changed, handled, or used by any carrier , whether party to this Agreement or not, at any of whose terminals or places of business there is a controversy between such carrier, or its employees on the one hand, and a labor union on the other hand; and such goods or equipment shall continue to be "unfair " while being transported , handled or used by interchanging or succeeding carriers, whether parties to this Agreement or not, until such controversy is settled. The Union agrees that , in the event the Employer becomes involved in a controversy with any other union, the Union will -do all in its power to help effect a settlement. The Union shall give the Employer notice of all strikes and/or the intent of the Union to strike any Employer and/or place of business , and/or the intent of members' refusal to handle unfair goods. The Carriers will be given an opportunity to deliver any and all freight in their physical possession at the time of receipt of notice. Any freight received by a carrier up to mid- night of the day of notification shall be considered to be in its physical possession . However, freight in the possession of a ,connecting Carrier shall not be considered to be in the physical TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 401 possession of the delivering carrier. The insistence on part of any Employer that his employees handle unfair goods or go through a picket line after they have elected not to, and such refusal has been approved in writing by the responsible officials of the Southern States Drivers Council, shall be sufficient cause for an immediate strike of all such Employer's operation without any need to go through the grievance procedure herein.' After the picket line at Rayloc was established, the employees of the various union-employing carriers (parties to the above contract) refused to cross the line to pick up Rayloc's goods. Some of the car- riers then engaged independent contractors to do the pickup work, and had the Rayloc freight brought to their (the carriers') shipping plat- forms for reloading on the trailer trucks for out-of-town delivery. Until March 27 or 28, 1956, the carriers, by and large, experienced only a little difficulty in having their employees load, unload, and otherwise handle the Rayloc freight at or from their (the carrier's) own premises.' On March 27, 1956, a special union meeting was held to discuss the question of handling Rayloc freight and the rights of the members with respect to the matter. The details as to the call and conduct of the meeting and the action taken are set forth below. On March 28, 1956, union officials sent the following notice to each of the freight carriers who were parties to the areawide "hot cargo" contract: To All Operators: DEAR SIR : As you may know, Teamsters' Local 728 is on strike and engaged in picketing Genuine Parts Company's Atlanta area offices and plants, including the Rayloc plant. In pursuance of their rights under Article IX of the South- eastern Area Over-the-Road Motor Freight Agreement and Ar- ticle XI of the Local Freight Forwarding Pickup and Delivery Agreement, the members have each made an individual voluntary decision to refuse to handle goods or equipment consigned to or received from this Company. This election has been approved 4 The refusal of the carriers ' employees to cross the picket line established at Rayloc's plant is not encompassed in the charges or in the allegations of the complaint. Ac- cordingly, the portions of the above-quoted contract provisions purporting to authorize the refusals to cross the picket line are not before us for consideration , and nothing in this opinion shall be taken as passing upon the effect of such provisions. 5 While employees of the carriers did handle the Rayloc freight in this March 19-27 period, it appears that some at least were "confused" as to whether or not they should do so, since they regarded the Rayloc freight as "hot cargo." Thus , as one employer testified , his employees would sometimes refuse for an hour, or for a day , to handle Rayloc freight, and then would do so when he urged them. There is also evidence that a number of employees called the union offices to find out what they should do, and that union business agents-told them at the time that they (the union agents ) would not advise them either way-that they ( the members ) would have to make up their own minds. 476321-58-vol. 119-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in writing by the responsible officials of the Southern States Drivers' Council. Under the provisions of the above-mentioned Articles, the Union has the obligation to give you notice of the intent of the members to refuse to handle these unfair goods, and the members have requested that we give you this notice. This letter will serve as such notice. On and after March 28 employees of most of the carriers receiving this notice uniformly refused to handle or to interline Rayloc goods.'. When asked to handle, each employee almost -invariably used the stock reply : "I personally refuse to handle." No employer discharged any employee for so refusing to handle Rayloc freight. However, there is evidence that some employers attempted, in various ways, to urge their employees to handle the freight; that at least one employer threatened discharge; and that others sought to explore what the employees would do if supervisory personnel attempted to service Rayloc goods. In the instances where the employers thus sought to resist their employees' refusal-to-handle, there is evidence that union officials (conceded to be union agents) contacted the Employers involved and warned them, in effect, that if they insisted upon their employees' handling Rayloc goods, the Union could, under the terms of the contract, and probably would, call a total strike against such employers. Certain of these episodes are more fully related below. Charges were filed by Rayloc on April 5, 1956, complaining of the refusal-to-handle activity by the freight carriers' employees as union- induced and union-sponsored secondary boycott action contravening the provisions of Section 8 (b) (4) (A) of the Act. On May 7, 1956, the General Counsel issued a formal complaint in behalf of the Board to obtain a remedy for this activity. In answering the complaint the Union denied that it had taken any measures violative of Section 8 (b) (4) (A) of the Act. It described its activities as including the call of a "special meeting" on March 27, 1956, at which the members individually and unanimously decided not to handle freight destined to or from Rayloc; and its "sole" act in connection with said meeting as the giving of "advise to its members (who were. employees of the various motor carriers) of their rights under the [hot cargo] con- Specific evidence ( detailed in part, infra ) was submitted as to refusal-to-handle episodes involving three freight carriers. In addition, nonspecific evidence, indicating that other carriers were affected, was provided by the parties' stipulation that the Union had a "num- ber of witnesses" (230 in all) who, if called, would testify that each was .a union member employed by a carrier (not identified as to name) who was party to the contract,. that each such member had refused to handle Rayloc goods on "one or more occasions " after' March ' 27, but that each would assert, if called, that "no officer or agent of the Union had re- quested, demanded, or asked that they refuse to handle Rayloc goods." According to Mathis, the Union 's secretary-treasurer and business agenit, Mathis was ad v!sCd of "some instances" in which members did handle Rayloc goods after March 27. He could not recall what employers were involved in these instances. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 403 tracts and of the fact that the Union had to notify the companies of the employees' intent, if they so desired, not handle the freight...." It further contended, in its answer, that when the employees refused to handle Rayloc freight each was effectuating "an individual choice and decision" and that each employee had a "right" so to do under the "hot cargo" contracts, and that the Union had a "right" to "cause" the members to exercise their contractual privileges. Litigation of the complaint and answer developed the occurrences of the union meeting of March 27 in some detail. It appears that Weldon Mathis, the union official who presided, made known that the object of the meeting was to consider the advisability of the mem- bers' support of the Rayloc strike through "hot cargo" action against Rayloc goods being offered to the carriers for transportation. Dis- cussion of the matter, led by Mathis, and participated in by the members present, proceeded on the premise that the taking of such "hot cargo" action was a desirable means of supporting their fellow members' strike at Rayloc. The only real question which was debated was how to translate the desire into reality in the face of a statutory prohibition against union-sponsored secondary boycott action, on the one hand, and the possible exercise of the discharge power by carriers against employees who engaged in such boycotting activity on the other. In the course of the discussion, Mathis called the attention of the members to the "protection of rights " clauses in the contracts. He advised them that such contracts offered them a "right" to elect, as "individuals" not to handle Rayloc freight, although the Union could not "instruct" or "require" them to make such an election. He told them further, that under such contracts, the Union had a right as an entity, to call a full-fledged strike to protect a nonhandling "election" by its members, against any discharge action the employers might take; that. the union officials (in whom the administration of union financial and other affairs was vested) were prepared to, and would, authorize such a strike to protect the members' nonllandling "election"; and that, while a motion approving, in formal terms, a membership pledge not to handle Rayloc goods was unacceptable because it might subject the Union to liability under this Act, a reso- lution' declaring the intent of the members-as individuals-not to handle, could safely be adopted. Mathis then read to the members a resolution he had previously prepared with the advice of counsel, and the membership unanimously adopted it.' Thereafter, the mem- bers and their agents-the union officials-promptly invoked the "rights" which were the subject of the resolution and the discussion, 7 The Resolution read in full as follows : Local t28 is on strike and engaged in picketing Genuine Parts Company's Atlanta Area Offices and' Plants, including the.Rayloc plant. Under Article IX of the South- eastern Area Over-the-Road Motor Freight Agreement and Article XI of the Local Freight Forwarding Pickup and Delivery Agreement, each member has the right 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thus brought about the virtual cessation of business dealings between many, if not all, of the carriers and Rayloc.e In weighing the Union's actions, as above-described, the Trial Ex- aminer deemed himself precluded by the failure of the General Counsel to "attack" the "hot cargo" contracts affirmatively in the complaint, from interpreting any action taken by the Union not inconsistent with the privileges contractually reserved to it and to its members as consti- tuting evidence supporting the complaint.' While implicitly conced- ing that the action of the Union and its members had inspired and had produced a secondary boycott of Rayloc goods by the freight carriers, the Trial Examiner found himself unable to interdict the boycott action so long as there was no "preponderating evidence" that the Union had either directly commanded its members to refuse to handle Rayloc goods or otherwise surrounded any appeals to them for such refusal with any direct or indirect threat of intraunion disciplinary action. He therefore concluded that the refusal-to-handle action could be viewed as action resulting from determinations made by the "individual" workmen free of the compulsion of official union orders or instructions, and that in such circumstances, the General Counsel had not met his "burden" of proving violations of 8 (b) (4) (A) of the Act. The grounds of our disagreement with these findings and conclusions of the Trial Examiner are indicated below. II. ANALYSIS AND DISCUSSION It is clear from the foregoing facts that, in refusing to handle Rayloc goods and/or otherwise impeding the carriers' handling and transportation of such goods, the employees of the carriers sought to, and in many instances did, force such carriers to boycott Rayloc or to cease doing business with it. That the affected employers were thus placed in an economic position having consequences the Congress to make an individual voluntary decision as to whether he will or will not handle goods or equipment consigned to or received from this Company. In accordance with this right each of the members has made and now announce [sic] his individual voluntary decision not to hand [sic] such goods. Under the same Articles mentioned above, it is the obligation of the Union to give each employer notice of the intent of the members to refuse to handle these unfair goods and in order to comply with the obligations of these Articles, the officials of the Union are hereby requested to notify each carrier employer of the intent of these members to refuse to handle these described unfair goods. Certain additional evidence was also developed as to the activities of various union stewards at certain of the freight-carriers' premises. In broadly descriptive terms, it establishes that certain union stewards advised carriers ' representatives (their Employers) that the Union had given the members orders or instructions not to handle Rayloc freight; and that such stewards had otherwise directly induced their fellow members of employees of the carriers not to handle Rayloc freight. Because the probative value of this evidence turns on a preliminary disposition of the Union 's contentions that it is not responsible for the statements or the conduct of job stewards , we shall defer discussion on this phase of the case in the interest of first testing the issues on the basis of the acts of the admitted agents of the Union and its members. 9 The General Counsel confined ' himself to stating only that the "hot cargo" contracts "and any action they required where not available as a defense" to the complaint. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 405 deemed injurious to the public interest (as evidenced by the "object" Section of 8 (b) (4)) is not seriously questioned here-nor, we think, can it be. The precise questions framed by the pleadings and the contentions of the parties as they affect the complaint are: (1) Does the record establish that such employee activity was "concerted" ac- tivity-the product of union agreement, or the encouragement or inducements of union agents; and (2) if so, does the existence of the "hot cargo" contracts to which the Union and the carriers were parties operate as a bar to the complaint, and/or otherwise affect the grant of any remedy under it. Before undertaking the task of answering these questions, we deem it necessary, in light of the Trial Examiner's failure to recognize the difference in the nature of these two issues, and certain observations of our dissenting colleague, to make some preliminary comments upon the separable considerations underlying the stated issues. Allegations that a union has engaged in, or has induced or encour- aged employees to engage in, concerted refusal-to-handle activity, present pure questions of fact. They are susceptible of resolution upon considerations entirely different than those involved in a deter- mination of the merits of union attempts to resort to the provisions of "hot cargo" contracts and the action they require or privilege, as a defense to a complained of violation of Section 8 (b) (4). Thus, the factual allegations must necessarily be resolved wholly on the basis of the record evidence produced in a particular case. Only when they are found to be predicated upon substantial evidence, is the Board squarely faced with the problems posed by the interposition of "hot cargo' contracts as a defense. These latter problems present, essen- tially, important questions of law calling for the Board's exercise of the function of statutory interpretation-an area in which the argu- ments of parties may aid, but cannot limit, the Board's choice of the sources to which it may properly refer in making its determination. These distinctions between the nature of the two issues as described above have been recognized by the Board even in cases where a ma- jority-in opinions subscribed to by our dissenting colleague-has dismissed complaints it has found factually predicated on union- induced refusal-to-handle activity because of independent determina- tions that where "hot cargo" contracts existed, the statute did not authorize the Board to interdict the activity."' We are surprised, therefore, at our dissenting colleague's suggestion, in this case, that i°The Pittsburgh Plate Glass Company, 105 NLRB 740, is a notable example of a de- cisional situation closely analogous to that presented here. There , as here, the complaint allegations that the union had engaged in, and had induced and encouraged employees to engage in , refusal-to-handle activity were predicated largely upon evidence that, in the context of a "hot cargo" contract , union agents had : (a ) "advised" or had otherwise in- formed members at union meetings and on the job that they ( the members ) had a "right" as "individuals" to follow their own feelings with respect to the handling of "hot cargo" ; and (b ) stated to management representatives seeking to resist this conduct that the 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we deny the parties the requirements of "due process" in undertaking to dispose of the issues along the lines indicated. Having thus made these preliminary observations as to what, in our view, constitutes an appropriate administration of the judicial process in cases such as these, we turn next to a determination of the factual allegations of the complaint. We are satisfied, upon the facts set forth above, that the refusal-to- handle or "hot cargo" activity of the carriers' employees was an integral part of a program formulated and effectuated by the Re- spondent Union as a labor organization, inspired and sponsored by the union officials-its admitted agents-and directed, as has been noted, at unlawful objectives. Thus, We have before us proof that widespread "hot cargo" action followed a union meeting; that such meeting was called and conducted for the purpose of considering the taking by those members employed by the carriers, of "hot cargo" action; and that such meeting produced an agreement (in the form of a resolution) by the members present, to refrain from handling Rayloc goods. In these circumstances, no straining is required to reach the conclusion that the "hot cargo" action was concerted union action-the means by which a collectively formulated policy was given effect." We also have before us proof that the Union's officials par- ticipated actively in the formulation of this "hot cargo" program by creating the occasion for the members to meet to consider its adoption; by promulgating and sponsoring its adoption; and by pledging the combined economic power and resources of the Union as a means of protecting its members' actual participation in effectuation of the "hot cargo" program against any retaliatory measures the carriers- employers of such members might take. And, finally, we have proof that the Union's officials actually provided the support and "protec- tion" they had thus promised to the members, in each instance in which carriers sought to resist their employees' "hot cargo" actions, by members ' action was consistent with the provisions of the "hot cargo" clauses and repre- sented the members' action , therefore, as an exercise of "rights" the members were entitled to enjoy. While the Board as then constituted ( including Member Murdock) ultimately dismissed the complaint on grounds that the existence of the "hot cargo" contracts operated, as a matter of law, as a defense to the complaint, the Board went out of its way to find that the Union had in fact "engaged in and by its instructions and other means, induced and encouraged" the employees of the secondary carrier-employers , to engage in, "a concerted refusal to handle" the freight of a struck- bound shipper. It is interesting to note, that in making these findings , the Board had before it the contrary determinations on this very issue of fact, of : (a) the district court passing upon the 'issues at an injunction phase ; and (b ) the Trial Examiner passing upon the issues in the record presented to the Board. "Compare Roane-Anderson Company, 82 NLRB 696, 704-705, where the Board (our dissenting colleague agreeing ) sustained a Trial Examiner 's finding that a "work stop- page in the nature of a strike" was involved when over 100 employees--members of a union-each individually resigned or quit their jobs on a particular date for allegedly "personal" reasons. The Trial Examiner specifically found "incredible" the contention of the Union and the testimony of employees offered to support it, that such quittings were not the product of "common agreement or direction" but rather the "result of as many different individual decisions arrived at independently, yet fortuitously at the same time." TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 407 threatening such carriers with a full-scale strike of their operations if they continued their resistance efforts.12 We find no substance in the Union's suggestion that the "hot cargo" program involved, basically, the recognition of the right of each indi- vidual member to refuse to do work under conditions which did not suit him. The right of an individual to work or not to work as he pleases cannot, of course, be questioned. While we have doubt that exercise of such right also permits an employee to assert a right to elect not to perform certain work tasks his employer may properly assign him and yet to continue the employment relationship-this is a question we need not here decide. For, as has already been ob- served, what is here involved is not an assertion of individual right by individuals, but rather the formulation and enforcement by the Respondent Union as a labor organization and the sponsorship of, and participation in, such program by its individual officials of a collec- tive policy or program aimed at forcing the carriers to deny their transportation facilities to Rayloc.13 We can not regard as dispositive here the fact that, in sponsoring the members' adoption of the "hot cargo" program here in issue, the Union imposed no threat of either direct or indirect disciplinary ac- tion on its members as a means of obtaining their agreement. This iff so because, under the meaning of the words "induce and encour- age" in Section 8 (b) (4) (A) which the Supreme Court sanctioned'14 a union's conduct can come within the reach of the statute where the union sponsors, authorizes, or otherwise encourages, the unlawful activity, even though it may not compel or require its members to engage in it. The pertinent language of the Supreme Court is as follows :15 ... The words "induce and encourage" are broad enough to in- clude in them every form of influence and persuasion. There is no legislative history to justify an interpretation that Congress by those terms has limited its proscription of secondary boy- cotting to cases where the means of inducement or encourage- 12 There is ample precedent for regarding the statements made by union agents to manage- ment representatives as probative evidence on the issue of union participation in the mem- bers' refusal-to-handle activity. See, e. g., Pittsburgh Plate Glass Co., 105 NLRB 740, 743 at footnote 3; Reilly Cartage Co., 110 NLRB 1742, 1765 , at footnote 22. 13 Compare , by analogy, International Typographical Union, at al., 86 NLRB 951, 953, where the Board (our dissenting colleague agreeing ) rejected union contentions that indi- vidual rather than union pressure was being exerted on employers under the "condition of employment" strategy. The Board there said , at p. 953, footnote 4, that the "an- nouncement by a union to employers that its membership would not work under certain conditions, coupled with a union's careful maneuvering of negotiations so as to permit a ready, and coincidental, exercise of `the right not to work ' having union sanction , consti- tutes a union [ sponsored ] threat to strike for the maintenance of the specified conditions." The Union's announcement to its membership here and its promulgation of the "right" of individual members to refuse-to-handle seem analogously related. "International Brotherhood of Electrical Workers, Local 501, at al., v. N . L. R. B., 341 U. S. 694. 15 The quoted portion of the case just cited appears at 341 U. S. 701-703. 4.08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment amount to a "threat of reprisal or force or promise of bene- fit." Such an interpretation would give more significance to the means used than to the end sought. If such were the case there would have been little need for § 8 (b) (4) defining the proscribed objectives because the use of "restraint and coercion" for any purpose was prohibited in this whole field by § 8 (b) (1) (A). b. The intended breadth of the words "induce or encourage" in § 8 (b) (4) (A) is emphasized by their contrast with the re- stricted phrases used in other parts of § 8 (b). For example, the unfair labor practice described in § 8 (b) (1) is one "to restrain or coerce" employees; in § 8 (b) (2) it is to "cause or attempt to cause an employer"; . . . and in § 8 (b) (6) it is to "cause or attempt to cause an employer ." The scope of "induce" and especially of "encourage" goes beyond each of them. We view as irrelevant to a determination of the issues here posed, the asserted "good-faith" intent of the Union or its agents to engage in no conduct which the law-as it understood it-squarely prohibited. Our examination of the Union's action cannot be controlled by the Union's understanding of the law. For, in the words of the Supreme Court, "the law is its own measure of right and wrong and of what it permits or forbids." Standard Sanitary Manufacturing Co. v. U. S., 226 U. S. 20, 49. Further, that the persuasion and influence found to exist may have been but an incident of a "good-faith" at- tempt by union officials to perform an intraunion duty to "advise" the members, and that it occurred within the confines of a union meeting, calls for no difference in evaluation of the officials ' conduct. The statute grants no exemptions to unlawful conduct because committed in the confines of a union meeting or because it occurred as an incident to, or in explanation of, union regulations or policies." We conclude , upon the basis of the foregoing, that the Union engaged in, and that its agents induced and encouraged the employees of the carriers to engage in, a concerted refusal to handle Rayloc freight, thus causing the carriers to cease doing business with Rayloc. We turn now to the problems posed by the existence of the "hot cargo" contract provisions. As noted above, the precise question pre- sented to us by the pleadings in this case is whether such contracts op- erate as a bar to the grant of any remedy under Section 8 (b) (4) of the Act where we are satisfied, upon the record before us, that a secondary boycott was produced by the Union's participation in and its instiga- tion of a concerted refusal by the carriers' employees to handle is See, e. g., Reilly Cartage Co., 110 NLRB 1742. Cf. Joliet Contractors Association et al., 99 NLRB 1391, enfd. 202 F. 2d 606, 611-612 (C. A. 7). TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 409 Rayloc goods. The parties have set forth their position on this issue as follows : Apparently relying upon presently prevailing Board theory, as explicated in the Sand Door and American Iron cases,17 the General Counsel did not frame the complaint in terms attacking the contracts as either unlawful or invalid. He claimed only that such contracts, and any action they required were not available as a defense to the kind of refusal-to-handle action described in the com- plaint, and here found to have been taken. The Union argued, how- ever, that its "hot cargo" contracts must be given operative effect as a defense, so far as its conduct was consistent with the provisions of such contracts, because the contracts are lawful and valid. It rested this argument on what is now familiarly referred to as the Conway's Express rule," and on the failure of the General Counsel to "attack" the contracts affirmatively. In recent years, a Board majority has agreed that "hot cargo" contracts do not remove conduct otherwise unlawful from the reach of 8 (b) (4) (A). But, the opinions subscribed to by such ma- jority have adopted a theory which does not turn on the validity of the "hot cargo" contracts, and assumes that it "is not within the province of the Board" to hold that such contracts are invalid.19 The General Counsel's failure to attack the legal validity of the "hot cargo" contracts, and his argument that they did not constitute a defense to the refusal-to-handle activity as here evidenced, follows this theory. However, we are convinced that this is not a case which should be disposed of solely on that narrow theory-as stated in the Sand Door case-and that, indeed, we may 2° and should here rule that "hot cargo" contracts between unions and common carriers are invalid and hence cannot be recognized by this Board as having any force and effect so far as the administration of this Act is concerned.21 17 Sand Door and Plywood Co., 113 NLRB 1210 ; American Iron and Machine Works Com- pany, 115 NLRB 800. 1B This rule-followed by our dissenting colleague here and in all cases involving "hot cargo" contracts-affirmatively sanctions the validity of "hot cargo" contracts and gives them operative effect as a defense to the kind of refusal-to-handle activity here involved. It was first enunciated in Rabouin, d/b/a Conway's Express Co., 87 NLRB 972, enfd. 195 F. 2d 906 (C. A. 2) and was followed by the Board until 1954 when the McAllister Tranfer, Inc., case, 110 NLRB 1769 , issued . In the latter case, a majority of the Board held that "hot cargo " contracts cannot operate as a shield to concerted refusal-to -handle actions engaged in by a union , or induced by overt acts of its agents. 15 See Sand Door & Plywood Co., 113 NLRB 1210, 1215. 20 In light of the Union's contentions , the members comprising the majority agree that the validity of the "hot cargo" contracts is presented as a basic issue in this case. How- ever , as hereafter indicated, there is some difference of opinion between the members com- prising the majority as to whether this basic issue should be decided here. 21 Although , because of the state of the pleadings, we shall refrain from issuing any order affecting the existing contracts , we may nonetheless utilize this case as an appropriate vehicle for comment on an "evil under the Act which [the Board] sees confronting or lurk- ing in [the ] situation before it." N. L. K. B. v . International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. (Pacific Intermountain Express Company ), 225 F. 2d 343 , 347 (C. A. 8). As the court indicated in the cited case in an 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In making this determination, we need not definitively decide that the Union's position that its "hot cargo" contracts constitute a defense to the complaint cannot be disposed of on the narrow theory set forth in the Sand Door and the American Iron and Machine Works cases.22 But there is room for questioning its adequacy in the factual circum- stances of this case, and we find ample basis here for rejecting certain postulations which the Board regarded as unanswerable in the Sand Door case and which apparently impelled its holding that, in effect, it was preempted from declaring "hot cargo" contracts invalid or against public policy. We refer particularly to the postulations in- volved in the Board's reasoning that employers are not required by law to sell their services or goods, as the case may be, to any customer who seeks to purchase them, that "hot cargo" clauses evidence the em- ployer's "voluntary" agreement to refrain, in effect, from doing busi- ness when at some future time the union party to such contract re- quests that he do so, and that, accordingly, the Board is without legal power to view these contracts as a nullity. Our 10 years of experience with the cases involving "hot cargo" clauses, our cumulative examination of the positions taken by the con- tracting employers in such cases, and the economic realities involved, should leave us with considerable doubt that employers acquiesce to such provisions "voluntarily"-in the pure sense of this term-espe- cially in a heavily organized industry like the motor transportation industry. In any event, if a union cannot, in fact, obtain a valid contract permitting it to take "hot cargo" action, it matters not that the employer's consent to such a contract is given "voluntarily." The other, and major reason for Board refusal in the cases since Sand Door to hold "hot cargo" contracts invalid, postulates, as noted, that if employers may, at will, refrain from doing business with any individual, they may validly agree to refrain from doing business in anticipation of union requests to that end. However, we are convinced that, where the contracting employers are common carriers, the exist- ence of the Interstate Commerce Act,23 destroys this rationale. For under the express provisions of the ICA, common carriers like those before us here, are not free to decide, at will, to withhold the services they hold themselves out as able to perform, from any customer or class of customers. They are, rather, under a duty to make their facilities available without discrimination or undue preferance to all analogous situation , our ruling at this time should be read as a warning that any attempt to enforce a contract provision like that here involved , after our pronouncement of its in- validity , can afford the basis of unfair labor practice charges. Ibid, at p. 348. Z' Citations given supra, footnote 16. 2149 U. S . C. A., part II, see. 301 et seq. This act is hereinafter referred to as the ICA. Where the Interstate Commerce Commission is referred to herein, it is identified as the ICC. TRUCK DRIVERS AND HELPERS LOCAL UNION NO . 728 411 customers willing to meet the conditions of their published tariffs and schedules within the physical limits of their facilities 24 It is true, as our dissenting colleague points out, that carriers who have been coercively compelled by unions to refuse to service strike- bound plants have succeeded, in some cases, in persuading the ICC not to impose the sanctions of the act against them for their inability, after making reasonable efforts, to give the complaining shippers service. In each of these cases, performance of the service requested would have required the carriers' employees to go through the picket lines at the struck-bound plant in circumstances imposing serious threats to the safety of the carriers' employees and to its equipment 25 But we know of no case in which the ICC has held that carriers are free, under the law, to acquiesce, voluntarily, in union requests that goods the union unilaterally brands as "hot" or "unfair" shall, for that reason, be subjected to boycott. Indeed, in the only ICC case we know of in which a carrier refused to service a shipper in circum- stances where the shipper did not ask for services which would have required the carriers' employees to go through any primary picket- line of a striking union, the ICC would not excuse the carriers' refusal 21 It is interesting to note that, in so doing, the ICC specifi- '" See sec . 316 of the ICA, and particularly , see. 316 ( d) which provides , in part, as follows : It shall be unlawful for any common carrier by motor vehicle engaged in interstate or foreign commerce to make , or cause any undue or unreasonable preference or ad- vantage to any particular person, port , gateway, locality , region, district , territory, or description of traffic in any respect whatsoever ; or to subject any particular person, port , gateway, locality, region, district, territory, or description of traffic to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever : Provided, however, that this subsection shall not be construed to apply to discriminations , prejudice, or disadvantage to the traffic of any other carrier of whatever description. 25 See e. g., Montgomery Ward & Co. v. Consolidated Freightways, 42 MCC 225 . But see Montgomery Ward Co . v. Northern Pacific Terminal Co., 128 F. 2d Supp . 485, in which the U. S. District Court held the common carriers liable to the shipper for refusing freight it had tendered to the carriers even though such refusal was grounded on the fact that the Union ( with whom the carrier had a "picket-line" contract ) threatened to strike the carriers if it carried the goods in question . The court said : "A contract with a union rep- resenting its employees cannot relieve a carrier from performing its duties , even when threatened with a strike." 21 Planters Nut & Chocolate Co. v. American Transfer Co., 31 MCC 719 . Cf. Montgomery Ward, Inc. Y. Sante Fe Trail Transportation Co., 42 MCC 212. The latter case is one in which the ICC would not excuse a carrier 's denial of service to a shipper even though such denial was based upon a refusal on the part of the employees of certain motor carriers to cross an established picket line around a complainant's (shippers ) establishment. The ICC considered the legitimacy of the picket line , and found that "the picket line does not appear to have been that of a striking union ." It further found that it had not been shown that defendant carriers had exercised reasonable diligence to overcome the obstacles im- posed, or that they had made a reasonable attempt to serve the complainant and were physi- cally prevented from so doing. It is interesting to note that, in a recent case coming before the ICC an Examiner ruled that motor freight carriers who boycotted goods of a shipper branded as unfair by a union (beneficiary of a "hot cargo" contract signed by the carrier ) violated the provisions of the Interstate Commerce Act. Galveston Truck Line Corp. v. Ada Motor Lines, Inc., et al., Case No. MCC-1922 on the ICC dockets . Compare, by analogy, U. S. v. Balt. & 0 . R.R. Co., 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tally denied validity to carriers' arguments that they, as corporations, could not be held to have refused their services to the shipper, because it was their employees' refusal to handle the goods their union had branded as "unfair" which was the proximate cause of the resulting boycott. In any event, it is not our intent, in making reference to the pro- visions of the ICA to judge the actions of the common carriers subject to the ICA. Our purpose is narrowly limited and can be summarized as follows : We have been commissioned by the Supreme Court not to ignore the other and equally important statutory schemes in ad- ministering our statute 27 The carriers before us are subject to the ICA-a scheme designed, like ours, to facilitate the flow of commerce. It has been argued that a Board holding that the "hot cargo" con- tracts are invalid may impose a qualification upon an employer's right to choose his customers 26 We have looked to the provisions of the ICA to determine whether such argument is here available. Be- cause the ICA in itself restricts and qualifies the common carriers' freedom of choice in the respects noted, we find that the argument as above-stated is destroyed, and that, accordingly, the rationale of those Board cases which sustain the validity of "hot cargo" contracts is wholly inapplicable where the employer parties are common carriers subject to the provisions of the ICA. Whether or not such rationale may still be effectively employed in cases involving other types of employers is a question we need not here decide. We are satisfied, on the basis of the legislative history of the Act as it throws light on the objectives of the congressional scheme embodied in Section 8 (b) (4) of the Act,29 that the "hot cargo" con- 333 U. S. 169, where the Court held that a railroad had violated the ICA by refusing to carry certain goods of a shipper because the provisions of a lease contract between the railroad and the owner of the track forbade the railroad from carrying the kind of goods the shipper sought to ship. The Court there said : (at p. 175) The ICA is aimed at wiping out discriminations of all types and language of the broadest scope has been used to accomplish the purposes of the Act . . . This Court has long recognized that the purpose of Congress to prevent certain types of discrimi- nations and prejudicial practices could not be frustrated by contracts . . . . Cf. Ne- braska Short Line Carriers, Inc., Case No. MC-116067 (Sub-No. 2) D. L. R. 8-9-57 ( Recommended Order of Examiner of ICC). r, See Southern Steamship Company v. N. L. R. B., 316 U. S. 31, 47 , where the Supreme Court stated : "The Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives . Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another, and it is not too much to de- mand of an administrative body that it undertake this accommodation without excessive emphasis upon its immediate task." as The right to condition such choice , by contract, would be an incident of the larger right to make the choice. 21 See the various opinions signed by our colleague , Member Rodgers ( including his con- currence in the instant case ), which ably review and refer to the pertinent legislative history of the Act and of the legislative debate which preceded its enactment . See par- ticularly the McAllister Transfer Inc., opinion , 110 NLRB 1769, 1778-1783 . Such refer- ences support the view that, in enacting Section 8 ( b) (4) (A), Congress not only intended TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 413 tracts here involved are repugnant to the basic policies of the Act and in conflict with the public rights this Board is under a duty to protect. We therefore hold that, at least where common carriers for. hire are involved, the kind of "hot cargo" clauses here before us are invalid at their inception and can be given no operative cognizance so far as the administration of this Act is concerned 30 In stating these views, we are not unmindful of those arguments op- posing them which are predicated upon a restrictive interpretation of the words "in the course of employment" as used in the introduc- tory phrases of Section 8 (b) (4). Nor are we unmindful of the fact that the Second Circuit Court of Appeals deems those arguments meritorious.31 But, with due deference to that court, we respectfully disagree with its interpretation of the quoted statutory phrase. For we are convinced of the correctness of the view-initially given ex- pression by the majority opinion of the Board in Sarin Door, and since to outlaw all union-sponsored secondary boycotts instituted under "hot cargo" and "struck work" contracts, but evidenced an intent to nullify and to invalidate such contracts. In the latter connection, see particularly the reference at 110 NLRB p. 1781 and footnote 20. See also, the dissenting opinion of Member Reynolds in Rabouin, d/b/a Conway's Express, 87 NLRB 972, at pp. 995-996 for a general discussion of the legislative intent. 30 It is the view of Chairman Leedom and Member Jenkins that the manner in which the Union here employed its invalid "hot cargo" contracts in producing a secondary boy- cott aptly demonstrates the need for an affirmative decisional rule which will serve notice upon unions that their act of integrating into a collective-bargaining contract provisions which authorize and encourage employees to refuse to handle freight or goods described therein as "hot" or "unfair" constitutes prima facie evidence of union inducement or encouragement of the kind of activity interdicted by Section 8 (b) (4). The pragmatic approach that has heretofore been utilized by the Board in dealing with "hot cargo" con- tracts does not discourage unions from demanding such contracts at the bargaining table. It is for this reason that we would propose a rule, wherever (as is here the case) we would find "hot cargo" contracts to be invalid, clearly notifying unions and their members that they cannot, as a matter of law, enjoy, exercise, or assert any of the "hot cargo" privileges such contracts purport to grant and that any attempt so to do for the purposes sought to be served by such contracts exposes the unions to liability under Section 8 (b) (4). Spe- cifically, we would declare that, in situations like those before us here, a prima facie case of a union violation of Section 8 (b) (4) is established whenever proof is adduced that : (1) there is in effect a collective-bargaining contract which purports to authorize or en- courage employees of a common motor carrier for hire to exercise a "right" not to handle a shipper's goods because such contract brands such goods as "unfair" or "hot"; and (2) such shipper is in fact refused the use of the facilities of said common motor carrier for hire. Cf. Joliet Contractors Association , et al., v. N. L. it . B., 202 F. 2d 606, 608-609 (C. A. 7), where the court indicated that the provisions of internal union regulations and bylaws which purported to preclude union members from working on materials supplied by nonunion or unfair firms supplied proof of inducement and encouragement of employees to strike or to engage in conduct in the nature of a strike, once an employer-employee rela- tionship had been established. 31 See Milk Drivers and Dairy Employees Local Union No. 338, et al., v. N. L. R. B., 245 F. 2d 817 (C. A. 2), affirming the views originally expressed in Rabouin, d/b/a Con- way's Express Co., 195 F. 2d 906 ( C. A. 2), and in the Board majority in its decision of the latter case, 87 NLRB 972. But see the concurring opinion of Judge Lumbard in Douds v. Milk Drivers and Dairy Employees Union Local 584, International Brotherhood of Team- sters, et al., 248 F. 2d 534 (C. A. 2), in which he comments: ". . . the decisions of.this court in the Rabouin and Milk Drivers [ cases] seem to me to be contrary to both plain statutory language and the intent of Congress." Our dissenting colleague 's opinion is predicated on the rationale of the decisions of the Second Circuit Court of Appeals cited in the first sentence above. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approved by the Ninth and Sixth Circuit Courts of Appeals '2-that the words "in the course of employment" were employed to distin- guish between employee conduct or activity in the course of the em- ployment relationship and in furtherance of the employer's business, and employee conduct in the pursuit of interests not related immedi- ately to the requirements of the business of the employer-party to the employment relationship. In sum, we feel that the phrase "in the course of employment" was used by Congress to make clear its rec- ognition that unions traditionally induce employees, in their capacity as consumers, to refrain from purchasing or using certain products made by nonunion manufacturers or produced under substandard working conditions, and to exempt that kind of union inducement from the operative scope of Section 8 (b) (4) 33 We are entitled so to reason because of evidence in the legislative history that, although Congress knew that union-inspired secondary boycotts frequently oc- curred in the context of "hot cargo" contract arrangements, it none- theless employed no language which would exempt such boycotts from the purview of Section 8 (b) (4), but chose, rather, to interdict all union-inspired boycott action without qualification.34 But, in addi- tion, we may and have considered the meaning given similar phraseol- ogy by the courts in interpreting those statutes containing it which predated the enactment of this Act, together with the fact that noth- ing in the legislative history justifies imputing to the legislature any intent to use those words in any different sense in framing this Act. We refer specifically to the fact that the words "in the course of em- ployment" appeared most frequently in statutes relating to workmen's compensation. References to standard texts explaining the meaning of these terms in workmen's compensation cases establishes that their meaning in this usual context was well understood to have reference 33 See the Sand Door decision , op. cit., supra, footnote 16, at p. 1217. The Ninth Circuit Court of Appeals approved this view of the statute. See 241 F. 2d 247. The Sixth Circuit Court of Appeals affirmed it in enforcing the Board decision in United Brotherhood of Carpenters & Joiners v. N. L. R. B., 242 F. 2d 932 . To the same effect see the dissenting opinion of Judge Prettyman , in General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 886, at al. v. N. L. R . B., 247 F. 2d 71 (C. A., D. C.) in which be expresses approval of the Board's interpretation of the statutory language here under discussion and the grounds of his disagreement with his colleague's rejection of that interpretation and their adoption of the restrictive meaning given the terms by the Second Circuit Court of Appeals. The concurring opinion of Member Rodgers quotes pertinent passages from the opinions of the Sixth Circuit Court of Appeals and the dissent of Judge Prettyman from the decision of the Court of Appeals for the District of Columbia . We join Mr. Rodgers in expressing our agreement with these quoted passages and the conclusions they support. 33 It seems obvious to us in a situation like that here before us, the Employer's busi- ness clearly contemplates the handling by employees , at his direction, of goods of other employers . For such "handling" requirement is part of the employment relation before a boycott is instituted and will still be part of the relation after the boycott is ended ; and the very argument that a "hot cargo" clause removes the "handling" duty from "the course of employment" is a recognition that the "handling" of goods was meant to be re- garded as being part of the "course of employment " as offered and accepted. 34 See footnote 29, supra, for the pertinent references. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 415 to the time, place, and fact of employment, and imposed employer liability for injuries sustained while employment was "in progress" and while employees were engaged in activity which, fairly viewed, was in furtherance of, and for the benefit of, the employer's business as he envisaged it.35 As has been indicated, our power to frame a remedy giving full substance to these views is limited by the pleadings. Nevertheless, what we have said preempts the Union from justifying- either its representation of the "hot cargo" contracts to its members as afford- ing them- protected rights, or its officials' active promulgation and support of its members' "hot cargo" action, on grounds that such conduct was expressly authorized by, and was consistent with, the terms of the "hot cargo" contract clauses. We conclude on the basis of the above rationale that the "hot cargo" contracts here involved were wholly invalid and that, as a matter of law, their provisions afforded the Respondent Union no basis for defending the charged violations of Section 8 (b) (4) (A) of the Act. III. DISCUSSION OF THE SPECIAL ISSUES AND FACTS RELATING TO THE ACTIVITIES AND STATEMENTS OF JOB STEWARDS The General Counsel claimed that, as to the refusal-to-handle episodes involving certain of the carriers, the statements and activities of union job stewards at the premises of such carriers provided an additional and/or independent basis for sustaining the complained of violations. The record evidence going to the nature of the stewards' activities and statements is set forth in the Intermediate Report. In dealing with such evidence, the Trial Examiner proceeded on the basic premise that job stewards were not "agents" of the Union and that hence, none of the conduct or the statements variously attributed to some of the stewards could properly be used as evidence of the Union's inducement or encouragement of the refusal-to-handle action. In his exceptions, the General Counsel claims, among other things, that the Trial Examiner erroneously applied the principles established as The following quotations from standard texts provide an example : (a) "In the course of employment " points to the time, place and circumstances under which an accident takes place, and simply means "while the employment was in progress". W. R. Schneider, Workmen's Compensation Text, vol. 6, p. 19. (b) An injury is said to arise in the course of employment when it takes place with- in the period of the employment, at a place where the employee reasonably may be, and while lie is fulfilling his duties or engaged in doing something incidental thereto. A. Larson, The Law of Workmen 's Compensation, vol. 1, p. 193. See also the interpretation of the phrase "in the course of employment " in Voehi v. Indemnity Insurance Co., 288 U. S. 162 , where the Longshoremen and Harbor Workers Compensation Act, U. S. C. A., Title 3, Sections 901-950 was being interpreted . See also the construction of the same language by the Court of Appeals for the District of Co- lumbia in Lumberman's Mutual Casualty Co. v. Hoage , 58 F. 2d 1072. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Southwestern Motor Transport, Inc., 115 NLRB 981. He con- tends that, in fact, such case constitutes precedent for findings that : (1) The Union is responsible for acts of stewards which amounted to inducement or encouragement of employees, whether or not the same were expressly authorized; and (2) statements attributed to stewards by management representatives to the effect that the Union had instructed, directed, or authorized refusals-to-handle, constitute direct evidence bearing on the truth of the subject matter of the state- ment, because such stewards' statements concerned a matter within the scope of their authority. We agree with both aspects of the General Counsel's substantive contentions. We also find meritorious his reliance upon Southwestern Motor Transport, Inc., case as sup- porting precedent for such contentions and ground our findings here upon that and the related decisions hereafter cited. The record here, as in other analogous cases in which the Board has passed upon the status of union job stewards, establishes that the Union's job stewards have the customary duties and authorities of union job stewards, including the transmission of official union messages and instructions to the members.36 While the Union's officials claimed that the authorization vested in stewards with respect to the transmission of messages to members is limited to messages which such officials give the stewards in writing, we do not regard such asserted limitation as having any real significance to the determination of the agency issues as here posed. What is controlling is that, so far as all the parties dealing with union stewards are involved, the stewards were the Union on the job and that they were expressly vested with sufficient authority so to act, as to warrant the inference that the actions here attributed to them fell within the scope of the delegated powers. We note, among other things, that there is nothing in the bylaws or in any other integrated union document to show any such stringent limitation on stewards' duties as those here claimed by the Union. We note, further, that there is no evidence that any employee-members had been specifically advised to disregard oral instructions or direc- tions given them by stewards in the capacity of the latter as union job-representatives; that, indeed, there is some record evidence that employee-members believed that stewards had the power to instruct them-as union agents-as to whether or not to handle Rayloc goods, and in the presence of stewards, offered to handle if the stewards so instructed; and that, in any event, the stewards' activities, fairly 36 The Union's officials who testified with respect to the duties performed by stewards on behalf of the Union described them as including dues-collections , checks of membership books, making reports on employment of nonmembers to the union , posting official union communications and notices on the Company 's bulletin boards , accepting employee griev- ances and functioning as the union agent in the first step of adjustment of such griev- ances with management, reporting -on the grievances to union officials , and transmitting to employees the written instructions or messages the Union has sent to stewards for distribu- tion to the membership. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 417 viewed, implemented the general policies the Union had officially ap- proved and sponsored. We next decide what statements and activities attributed to union stewards supply support for the complaint within the framework of the principles set forth above. We regard it sufficient, for our pur- poses, to utilize : (1) only so much of the testimony of management representatives with respect to the stewards as was specifically credited by the Trial Examiner; and (2) testimonial admissions by stewards of certain conduct we deem to be violative of Section 8 (b) (4) (A) of the Act. Credited management testimony established that, at the Simpson Express Company, Steward Woodbury: (1) told Simpson (the owner) in the presence of other employees, and in response to Simp- son's request that Woodbury ask the men to handle the Rayloc freight, that he could not do so; (2) told Simpson and Ryan (the dock fore- man), in the presence of other employees and in response to Simpson's question as to what would happen if management agents handled the goods, that "the boys would probably walk off the job"; (3) remained silent when Fulcher, one of the employees, told Simpson when the latter asked Fulcher to handle the freight that he (Fulcher) could not do so "if the steward told him not to handle it"; and (4) repre- sented to Simpson, in effect, that the Union's business agent would not allow the members to handle or interline the Rayloc freight. Testi- monial admissions made on the record by Jimmie Butler, the steward at the Aker's Express Company, established inter alia, that: (1) on one occasion, prior to the March 28 membership meeting, Butler told the employees he would file "grievances" against them in the event they handled "scab freight"; and (2) that, on another occasion, after the said meeting, he told "the boys" that "they didn't have to handle the frieght" and that if the Company tried to make the employees do so, he could "file grievances" against the Company. We hold that this evidence constitutes direct evidence-in addition to that. relating to the conduct of union officials-establishing that, in violation of Section 8 (b) (4) (A), the Union induced and encouraged employees of Simp- son Express and of Aker's Terminal Company to engage in a con- certed refusal to handle Rayloc goods 37 av In• addition to the Southwestern Motor Transport, Inc., case, cited supra, we refer to the following cases as supporting the findings and conclusions here reached. Reilly Cartage Company, 110 NLRB 1742, 1745, 1746, footnote 20; American Iron and Machine Works Company, 115 NLRB 800, 817; Capital Paper Company and Consolidated Sales, Inc., 117 NLRB 635. See also Roane-Anderson Co., 82 NLRB 696, 712-713 ; General Millwork Corp., 113 NLRB 1084, enfd. 242 P. 2d 936 (C. A. 6). Compare the Board's holdings that statements made, and acts committed by, supervisors are binding on employers even though the supervisors were not expressly authorized to take the actions, or to make the statements upon which the Board predicated the violation find- ings. See, e. g., Drico Industrial Corporation, 115. NLRB 931 ; Hardware Engineering Company, Inc., 117 NLRB, 896. 476321-58-vol. 119-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent Union, set forth above, occurring in connection with the operation of Genuine Parts Company and the freight carriers in and around the Atlanta, Georgia, area, who employ members of the Respondent Union, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Union violated Section 8 (b) (4) (A) of the Act, as set forth above, we shall order it to cease and desist from such conduct. We shall also order it to take certain affirm- ative action designed to effectuate the policies of the Act. Because of the extensive scope and range of the Respondent's unlawful ac- tivities here, we find it necessary, in order to effectuate the policies of the Act, to issue an order broad enough to enjoin the recurrence, throughout the Atlanta, Georgia, area, of the conduct found unlawful in this case. Further, we find it appropriate to incorporate in our order, a provision that the Respondent Union publish a copy of the notice attached to this Decision and Order as the Appendix, in an Atlanta, Georgia, newspaper, of general circulation.3e CONCLUSION OF LAW 1. Truck Drivers and Helpers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By engaging in, and by inducing and encouraging employees of Simpson Trucking Co., Akers Terminal Co., and of other freight carrier employers in the Atlanta, Georgia, area, employing members of the Respondent Union, to engage in a strike or concerted refusal in the course of their employment to handle freight brought to docks of their respective employers from or by Genuine Parts Company, At- lanta, Georgia, where an object thereof was to force or require such employers to cease doing business with Genuine Parts Company, the Respondent Union has engaged in and is engaging 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. 118 See Capital Paper Company and Consolidated Sales, Inc., supra, and other cases there cited, where similar requirements have been made in Board orders. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 419 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 Union, and its officials and agents, shall: 1. Cease and desist from engaging in, or from inducing and encouraging employees of Simpson Trucking Co., Akers Termi- nal Co., and of any other freight carrier employers in the Atlanta, Georgia, area, employing members of the Respondent Union, to engage in, a strike or concerted refusal in the course of their employment to process, transport, or otherwise handle or work on goods, articles, or commodities or to perform services for their respective employers, where an object thereof is to force or require any such employer to cease doing business with Genuine Parts Company or with any other like person or company who has business relations with aforemen- tioned freight carriers in the Atlanta area. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its business offices at Atlanta, Georgia, and at all other places where notices to its members are customarily posted, copies of the notice marked "Appendix." 39 Copies of said notice, to be fur- nished by the Regional Director for the Tenth Region, shall, after being duly signed by an official representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to members of the Respondent Union are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (b) Cause a copy of said notice to be printed, at the Respondent Union's expense, in a daily newspaper of general circulation in Atlanta, Georgia. (c) Mail to the Regional Director for the Tenth Region signed copies of said notice for posting at the premises of Genuine Parts Company, Simpson Express Co., Akers Terminal Co., and of other freight carriers employing members of the Respondent Union, if willing, in places where notices to their employees are customarily posted. (d) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent Union has taken to comply herewith. In the event that this Order is enforced by a decree of a United States Court of Ap- peals, 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." 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER RODGERS, concurring : I agree with my colleagues of the majority that the Respondent Union violated Section 8 (b) (4) (A) of the Act. I deem it essential, however, to express my views separately because of certain basic considerations which govern my reasons for reaching this result. The basic issue in this case arises out of the existence of so-called "hot cargo" clauses in the contracts between the carriers and the Respondent Union and the treatment to be accorded such clauses when they are pleaded as a defense to a complaint alleging a violation of Section 8 (b) (4) (A) of the Act. Without considering the implica- tions of the Interstate Commerce Act, as two members of the majority have done, 411 as I read the National Labor Relations Act and the legislative history that attended the enactment of the secondary boy- cott provisions, I find no need for going beyond the confines of our own Act for holding that "hot cargo" agreements cannot be pleaded as a defense in cases of this type. A basic principle that underlies the Act we are charged with administering is that the parties may not waive rights vouchsafed by the Act. The reason for this is clear. Rights accorded by the statute stem from an overriding consideration clearly expressed in the Act itself "to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce." 41 In Senate Report No. 105 on S. 1126, the committee made it clear that the provisions dealing with secondary boycotts were incorporated in the bill "in order adequately to protect the public welfare which is inextricably involved in labor disputes" and that the Board was to act "in the public interest and not in vindication of purely private rights" in pursuing the remedies created by Congress 42 Indeed, the exclusive grant of authority to the Board to prevent and remedy unfair labor practices affecting commerce 41 was to insure that the existence of private agreements at odds with the statute would not preclude the Board from acting in the public interest.44 This is wholly con- sistent with the rule in other areas of the law that private agreements are invalid if they contravene the public interest.45 It is well estab- 60 To the extent that the majority opinion holds that "hot cargo" agreements cannot be pleaded as a defense to a complaint alleging a violation of Section 8 (b) (4) (A), I concur therein . See my opinion in McAllister Transfer, Inc., 110 NLRB 1769, and my concurring opinion in Sand Door and Plywood Co., 113 NLRB 1210. 41 Section 1 (b) of the National Labor Relations Act. 4a Senate Report No . 105, p . 8 (1 Leg. Hist. 414). 43 Section 10 (a) of the National Labor Relations Act. 44 Amalgamated Utility Workers v. Edison Company, 309 U. S. 261 , 264, 267, 269 ; N. L. R. B . v. General Motors Corporation, 116 F. 2d 306 ( C. A. 7). 45 See , for example , Steele v. Louisville Railway Co ., 323 U . S. 192. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 421 lished that the statutory protection of the public interest cannot be waived by the agreement of private parties.41 Turning to the precise issue under consideration, we are confronted with a statutory proscription of secondary boycotts and an attempt by the Respondent Union to escape that statutory ban by pleading a private agreement. Stated succinctly, we are called upon to decide whether, even though all the elements necessary to establish a violation of Section 8 (b) (4) (A) of the Act are present, a private contract, designed to authorize that which the statute prohibits, can constitute a defense to a complaint alleging such a violation. As I view it, this situation is essentially analogous to one where an employer and a union conclude an agreement obligating the union to withdraw unfair labor practice charges and to refrain from filing new ones. Clearly, in that case the Board is not prevented by the agreement of the parties from processing charges filed by the union, although such filing was in direct contravention of the terms of the agreement.47 In those circumstances, the invalidity of the agreement is predicated not on the theory that its execution is in itself an unfair labor practice, but on the theory that the agreement is in derogation of the public policy expressed in the Act. The same rule must perforce be applied in the case of so-called "hot cargo" agreements, for, to permit a union, intent on illegal secondary activity, to secure by pri- vate contract what amounts to a personal, private exemption from certain sections of the law is to subsidize circumvention and penalize compliance. Such a course must inevitably lead to the collapse of all reasoned regulation and a return to the "law of the jungle" in labor relations-a law which both the Wagner Act and the Taft- Hartley Act found to be incompatible with a 20th-century civilization. Mindful of these considerations, I cannot subscribe to the view that a "hot cargo" agreement is a valid contract. In my opinion, a "hot cargo" agreement is invalid at its inception. In legal contemplation it is therefore unenforceable. Its intrinsic invalidity stems from its very purpose-the negation of public policy. Those who reason that such agreements are valid base their conclusion in large part on the premise that the "hot cargo" clause has the effect of removing so- called "hot cargo" from the course of the employment of the employees involved, and that therefore conduct which would concededly be violative of the Act in any other circumstance is rendered harmless, because under a "hot cargo" clause such conduct would not occur in the course of the employment of the employees concerned. The weak- ness of that reasoning is that it claims too much for the phrase and too little for the sentence. dE 12 Am. Jur. Sec. 166; Bowersock v. Smith, 243 U. S. 29; Grandview Inland Fruit Co. v. Hartford Fire Insurance Co., 109 A. L. R. 1472; Short V. Bullion Beck Co., 45 A. L. R. 603. 47 N. L. R. B. v. General Motors Corporation, supra. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Sixth Circuit in Local 11, United Brotherhood of Carpenters cC Joiners, et al. v. N. L. B. B., 242 F. 2d 932, treated this question in some detail. In that case, the Respondent Union's position was that if an employee has agreed in advance that a certain product need not be used by his employees, and he subsequently honors this agreement by acquiescing in the employees' unwillingness to use or work on the product, there can be no "concerted refusal"' by the employees "in the course of their employment" to use or work on the product. Similarly, it was argued that their conduct cannot be "in the course of their employment" because the employer has agreed in advance that their employment would not include working on that product. In effect, argued the union, an employer cannot be "forced or required" to cease handling goods which he had already agreed not to handle. The court summarized this position as follows : These semantic contentions are buttressed by the argument that the primary purpose of Section 8 (b) (4) (A) of the Act is to protect neutral employers from strikes resulting from their desire to use goods produced by another employer engaged in a labor dispute, and that an employer who has agreed in advance not to use such goods needs no such protection. The court disagreed sharply with such reasoning. It stated : ... the primary purpose of Congress in enacting Section 8 (b) (4) (A) was to protect the public interest from strikes or concerted refusals interrupting the flow of commerce at points removed from the primary labor-management dispute. To allow the acquiescence of a single ,employer to validate conduct contrary to the express language of the statute would be to frustrate this Congressional purpose. And, as pointed out by the Board, the phrase "in the course of their employment" does not have the restricted meaning originally assigned to it, but rather, Congress "used this phrase only to distinguish between employees in their capacity of employees and 'employees in their capacity of con sumers.7 48 [Emphasis supplied.] In another case,49 Judge Prettyman, in commenting on this argument, stated : I do not agree with the argument that the hot cargo clause has the effect of removing struck goods from "the course of their [the Teamsters'] employment." If such a construction could be placed upon the phrase in Section 8 (b) (4) (A), careful contract draftsmanship could legalize without qualification any otherwise prohibited activity, e. g., the jurisdictional strike, the sympathy 48 See Sand Door and Plywood Co., 113 NLRB 1210, enfd. 241 F. 2d 147 (C. A. 9). 11 General Drivers, et at. v. N. L. R. B., 247 F. 2d 71 (C. A., D. C.). TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 423 strike, and the wildcat strike, by artificially exempting the work involved from the course of the employment governed by the contract. I think the statute cannot thus be nullified. I concur in the analysis of the Sixth Circuit and the comment of Judge Prettyman.60 As I stated in McAllister Transfer, if the structure of the Act is examined, one cannot help but reach the conclusion that if Congress had intended to legalize "hot cargo" clauses, it would have done that by way of a specific exception to the general secondary boycott provi- sions. This was precisely what Congress did in enacting unfair labor practice provisions in Section 8 (a) (3) of the Act; it specifically pro- vided that contracts conforming to the permissible limits of union security shall be valid. But both the plain language of the statute, and the clear background of opposition to secondary boycotts in gen- eral and "hot cargo" clauses in particular," make it apparent that Congress had not the remotest intention of carving out an exception in favor of "hot cargo" clauses. Certainly, it did not do so by the use of the words "in the course of their employment." In this connection, it should be borne in mind that Board policy at the time the amendments to the Act were considered was unalter- ably opposed to the effectuation of contracts that contravened the objectives of the Act, and that this policy was consistently approved by the courts of the land, including the United States Supreme Court.52 For example, in J. I. Case Company v. N. L. R. B., supra, at p. 337, the United States Supreme Court stated : Individual contracts, no matter what the circumstances that justify their execution or what their terms, may not be availed of to defeat or delay the procedures prescribed by the National Labor Relations Act looking to collective bargaining, nor to ex- clude the contracting employee from a duly ascertained bargain- ing unit; nor may they be used to forestall bargaining or to limit or condition the terms of the collective bargaining agreement. 51 in this connection, I respectfully disagree With the treatment accorded the phrase "in the course of their employment" by the Second Circuit in its opinion in milk Drivers and Dairy Employees Local Union No. 338, et al. v. N. L. R. B., 245 F. 2d 817 (C. A. 2). But see Douds v. Milk Drivers and Dairy Employees Union Local 584, International Brother- hood of Teamsters, et al., 248 F. 2d 534 ( C. A. 2), subsequent to the Milk Drivers case. There the Second Circuit affirmed an injunction granted pursuant to Section 10 (1) of the Act against secondary picketing in a case where the Union sought to implement a "hot cargo" clause. Significantly, Judge Lumbard in concurring in the Douds case declared that "the decisions of this Court in the Rabouin and Milk Drivers [ cases] seem to me to be contrary to both plain statutory language and the intent of Congress." 51 92 Cong. Rec. 5065 (2 Leg. Hist. 1380). 62 J. I. Case Company v. N. L. R. B., 321 U. S. 332; National Licorice Company V. N. L. R. B., 309 U. S. 350; N. L. R. B . v. Winona Textile Mills, 160 F. 2d 301 (C. A. 8) ; N. L. R. B. v. Reed & Prince Manufacturing Company, 118 F. 2'd 874 (C. A. 1) ; Hartsell Mills Go. v. N. L. R. B., 111 F. 2d 291 (C. A. 4). 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "The Board asserts a public right vested in it as a public body, charged in the public interest with the duty of preventing unfair labor practices." National Licorice Co. v. Labor Board, 309 U. S. 350, 364. Wherever private contracts conflict with its functions, they obviously must yield or the Act would be reduced to a futility. [Emphasis supplied.] Congress, at the time of these enactments, was well aware of this policy, and for that reason it was not called upon to state in the text of the Act that which was already well-established law, namely, that the terms of a private agreement which attempt to evade the pro- scriptions of the Act shall not constitute a defense to conduct clearly outlawed by the Act. The violence that "hot cargo" agreements do to the statutory scheme is by no means confined to the secondary boycott provisions of the statute, nor is it confined to the relationships between the individuals signatory to such agreements. These agreements are designed to, and have the effect of, emasculating and undermining other basic pre- cepts of the statute as well. For example, in the McAllister case, such clause was invoked against an employer and his cargo became "hot" only after his employees had unanimously rejected the union concerned by means of an election conducted by this Board. In the Sand Door case, such clause was invoked against an employer and his goods became "hot" only because his employees were represented by a union other than the union invoking the "hot cargo" clause. Many similar cases can be cited. Thus, if these clauses are allowed to stand, they will have the effect of inviting and compelling the wholesale commission of unfair labor practices by employers through- out the country, and the attendant effect of depriving countless em- ployees of basic rights proclaimed to be protected by this Act. Presumably, if these clauses are upheld, any employer's product could be labeled "hot cargo" by the union, if that employer refused (a) to recognize a minority union; (b) to displace an established union; (c) to compel his employees to join a union against their will; or (d) to become a signatory to a "hot cargo" agreement. Presum- ably, also, a strike on the part of a union to compel employers to sign such agreements would also be legal and, therefore, a protected ac- tivity. The violence this would do to the entire framework of the statute is patent. The widespread use of such agreements would serve to exempt from this section of the Act, the two segments of American industry which Congress felt, in this respect, stood in greatest need of its protection, if the public interest were to be served, namely, the transportation and building and construction industries. In concluding that a violation of Section 8 (b) (4) (A) occurred in this case, I am, of course, relying on the factual findings of induce- TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 425 ment and encouragement of employees of secondary employers and the proscribed objective. I am in no sense including the existence of the "hot cargo" agreement as an element of that violation. I am simply saying that, when all of the elements of a violation are present, a "hot cargo" clause cannot be pleaded as a defense, because such agreements are in derogation of the public policy expressed in the Act and cannot, therefore, serve to immunize and condone unlawful conduct. As I see it, this is the only result that is consistent with sound statutory construction. As I am satisfied that Section 8 (b) (4) (A) has been violated by the Respondent Union for the reasons stated above, I join in the ultimate findings of the majority. MEMBER BEAN, concurring : I agree with the other members of the majority in this case in finding, upon the facts which have been set forth describing the con- duct of the Union's officials, that the Respondent Union violated Section 8 (b) (4) (A) of the Act. However, my concurrence in their view that the "hot cargo" provisions of the contracts here involved constitute no defense to the complaint, is predicated solely on the theory set forth by the Board's majority in the Sand Door 53 case. As do my colleagues, I recognize the obligation resting upon this Board, in effectuating the congressional intent, to give heed to the necessity which often exists for "careful accommodation of one statu- tory scheme to another," 54 and not to pursue the purposes and policies of the Labor Relations Act with such single-minded devotion as to be blind to the congressional objectives embodied in other enactments. Indeed, only recently, I have joined in a decision wherein the Board held that, in a situation where this Board and another Federal agency were both required to interpret the same statutory provision,55 con- siderations of comity between governmental agencies dictate that the views of the agency primarily concerned with administration of the statute in question should be followed as the guide to" its interpre- tation. The cases cited by my majority colleagues do not, however, appear to me to demonstrate that the ICC has yet spoken with finality concerning the validity, under the statute which it administers, of a "hot cargo" contractual provision. And I find nothing in the existing Board doctrine as set forth in the Sand Door case which would seem to impinge either upon the interpretation attributed by my colleagues to the provisions of the ICA or might seem likely to impinge upon 53 Sand Door and Plywood Co., 113 NLRB 1210. 54 Southern Steamship Company v . N. L. R. B., 316 U. S. 31. ss Olaa Sugar Company, 7 united, 118 NLRB 1442 , wherein the issue concerned the defi- nition of agriculture appearing in the Fair Labor Standards Act which this Board has been required , by rider to its own appropriations act, to follow in interpreting the exclusion of "agricultural laborer" from the definition of "employee " in the Labor-Management Rela- tions Act. See also Imperial Garden Growers, 91 NLRB 1034. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any such interpretation which the agency charged with administration of that statute may yet adopt. If later events should prove that I am wrong, I feel sure that there will be opportunity for this Board to make any necessary accommodation of its doctrine to the policies of the ICA. For these reasons, I find it unnecessary to rely upon any other or further principles than those set forth in the Board's Sand Door decision for the determination of this case,66 MEMBER MURDOCK, dissenting : The decision of the majority in this case, finding, for different reasons, a violation of Section 8 (b) (4) (A) is, in my opinion, of extraordinary importance. Its importance lies in the fact that two members of this majority have now taken the position that the mere existence of a "hot cargo" contract between a common carrier and a union may be evidence of a violation of this section of the Act. Never before has any member of this Board or of any court adopted so extreme a view. Only one member of the majority now adheres to the majority position in Sand Door and Plywood Company, 113 NLRB 1210, affg. 241 F. 2d 147 (C. A. 9) ; and American Iron and Machine Works Company, 115 NLRB 800, reversed in part sub nom; General Drivers, Chauffeurs, etc., Union, Local 886 v. N. L. R. B., 247 F. 2d 71 (C. A., D. C.). These decisions, the most recent Board pronouncements in this area of the law, are now before the Supreme Court of the United States on certiorari. The main majority opinion correctly notes that the "hot cargo" contracts in this case are not alleged by the General Counsel to be illegal. Accordingly, the Trial Examiner has not passed upon this issue and the parties have not litigated it. But despite this fact, that opinion purports to hold that unions and their members "cannot, as a matter of law, enjoy, exercise, or assert any of the `hot cargo' 'privileges such contracts purport to grant and that any attempt so to do for the purposes sought to be served by such contracts exposes the unions to liability under Section 8 (b) (4)." This dictum is of such extraordinary importance and so novel that it should be decided only after the most thorough consideration with full notice that such an issue is being litigated and full opportunity for all parties to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to make argument on it to a Trial Examiner and to the Board. This is the very minimum of due process. I have in other decisions fully set forth my views as to the legality of union conduct pursuant to an employer's contractual agreement ee On a factual basis , however , I also find it unnecessary to reach or to decide that por- tion of this case which deals with the acts and statements of stewards, in view of the determination herein that the acts of admitted union agents are such as to support the complaint. I neither adopt nor pass upon the determination made in the principal opinion upon this phase of the case. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 427 not to require its employees to handle the goods of another employer. See the dissenting opinions in Reilly Cartage Company, 110 NLRB 1742, 1753; McAllister Transfer, Inc., 110 NLRB 1769, 1790; Sand Door and Plywood Company, 113 NLRB 1210, 1222; American Iron and Machine Works, 115 NLRB 800, 803. These dissenting opinions are in conformance with decisions of the Court of Appeals for the Second Circuit, Henry V. Rabouin d/b/a Conway's Express V. N. L. R. B., 195 F. 2d 906, most recently reaffirmed in Milk Drivers Union v. N. L. R. B. (Crowley's Milk Co.), 245 F. 2d 817. The dis- senting opinion in American Iron and Machine Works Company, supra as it pertains to the contracting union, has most recently been adopted by the Court of Appeals for the District of Columbia. in Gen- eral Drivers Union, Chauffeurs, etc, Union, Local 886 v. N. L. R. B., 247 F. 2d 71, reversing to that extent the majority's contrary decision. The court's decision in the latter case has particular relevance to the decision of the majority here. The court reasoned as follows: If an employer may lawfully agree that its employees will not be required to handle freight from a struck company, and such a situation arises, it is hard to see how it can be said that, simply because the employees do what they have a right to do, there was a strike or refusal to work. This, in my opinion, is the short answer to the argument that such an agreement is invalid because it is "in derogation of the public policy expressed in the Act." So far as I can determine there is not a word in Section 8 (b) (4) (A) or its legislative history to suggest, even re- motely, that Congress intended to restrict the right of an employer to do business or to cease doing business with another employer. Nor is there any language in the statute which can be interpreted as for- bidding a union to seek and obtain a contract whereby an employer agrees that he will not do business with another employer engaged in a labor dispute. Whether or not there should be such a prohibition in the Act is a matter for the Congress to decide. But to say that Congress has already established a public policy invalidating the ex- ecution of "hot cargo" contracts does not comport either with the lan- guage or purpose of Section 8 (b) (4) (A). That section of the Act, as the Board and the courts have frequently held, forbids strikes or inducements to strike with an object to force a neutral or secondary employer to cease doing business with another employer. Neither the means, a strike or an inducement to strike, nor the object, a cessation of business, is, standing alone, unlawful. The means becomes unlaw- ful when it is established that such an object exists. The "general secondary boycott provisions" of this statute do not afford a basis for holding that the mere cessation of business between two employers, whether by contract or otherwise, has been proscribed by Congress. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Obviously, therefore, no "specific exception" to such provisions was deemed necessary by Congress in order "to legalize" such contracts. Congress simply has not legislated with regard to this matter. The public interest with which Congress was concerned was directed against secondary strikes and the consequent involvement of neutral employers in controversies not theirs. It was not intended to protect primary employers from primary strikes or from contracts which en- listed the support of other employers. When the American Iron and Machine Works Company case was before this Board the majority held that a union's "appeals to em- ployees" not to handle "hot cargo" notwithstanding their contractual right to be free from such work was a violation of Section 8 (b) (4) (A). The dissenting opinion pointed out that such broad language, carried to an absurd extreme, might be interpreted as forbidding a union to "discuss a hot cargo clause at a membership meeting." That extreme is now the factual basis of the majority's decision in the in- stant case. To the extent the majority finds that the Respondent Union spon- sored a strike or induced employees to engage in a strike its decision, in my opinion, is factually incorrect. To the extent two members of the majority assume power to determine public policy under a differ- ent Federal statute regulating interstate transportation at a time when decisions of this nature 57 are pending before the tribunal se- lected by Congress to determine such issues in the first instance, their decision, I believe, intrudes on the exclusive jurisdiction of the Inter- state Commerce Commission. As I read the several opinions of the majority in this case, there is no majority decision that these "hot cargo" contracts are in and of themselves violative of Section 8 (b) (4) (A), as only two members of the Board so hold. The Union's conduct in this case must there- fore be considered in the context of a lawful agreement, granting cer- tain rights to its members with respect to the handling of "unfair goods." It is to be noted that the U. S. District Court for the North- ern District of Georgia, Atlantic Division, denied the application of the General Counsel for a preliminary injunction under Section 10 (1) of the Act on the ground that there was no reasonable cause to believe that the Respondent Union had violated Section 8 (b) (4) (A). The facts upon which the court relied in that case are substantially the same as those presented here. In its opinion the court adverted to the affidavits of officers of the Union and "more than 230 employees of the carriers involved to the effect that their action in refusing to handle w Galveston Truck Lines Corporation v. Ada Motor Lines, Inc., et al., Case No. MC-C- 1922, Report and Recommended Order issued by ICC Hearing Examiner on April 8, 1957; Nebraska Short Line Carriers, Inc., Common Carrier Application, No. MC-116067 (Sub- No. 2) Report and Recommended Order issued by ICC Hearing Examiner on August 8, 1957. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 429 goods of Genuine and Rayloc was their voluntary and individual de- cision and that the officers of the Respondent Union did not in any way order, instruct, direct, or appeal to such employees not to handle such goods, and that no officers or agent of the Respondent Union has in any way induced or encouraged the employees not to handle the freight of Rayloc or Genuine Parts." The court could not agree with the General Counsel that a union's advice to its members as to the rights guaranteed to them by a lawful contract constituted un- lawful inducement to engage in a secondary boycott. Indeed, the rec- ord in this case shows that the union official who presided over the special meeting made it absolutely clear to the membership that his sole purpose was to determine their individual intentions with regard to the handling of Rayloc goods; that their contracts with the car- riers gave them the right to make a personal decision ; that the Union would not in any manner attempt to tell them what to do. More- over, following passage of a resolution expressing the members' indi- vidual intentions, the presiding official again advised the membership that this resolution did not bind any one of them to refuse to handle unfair goods; that they were, as previously, free to handle or not to handle such goods no matter how they had voted. It is particularly revealing that the presiding official had previously rejected a motion from one of the members to the effect that union members would refuse to handle Rayloc goods. He told the members that such a mo- tion might be interpreted as union action whereas the Union wanted to maintain a neutral position and to leave the question of handling Rayloc goods to each member as an individual. The recital of facts in the majority opinion ignores this step. It is the conclusion of the majority that the exercise by individual employees of their rights under these contracts was an "integral part" of a union program to achieve this result. The "proof" upon which the majority relies consists of: (1) the fact that individual employees did refuse to handle "hot cargo"; (2) the fact that,a meeting was called to determine their intentions, as individuals, on this issue; (3) the fact that a resolution was adopted by the members at this meet- ing which, after reciting the pertinent provisions of the "hot cargo" contracts, stated that "each of the members has made and now an- nounce(s) his individual voluntary decision not to hand(le) such goods";, and (4) the fact that the Union offered to protect any em- ployee from retaliatory action by his employer in the event the employee decided, pursuant to his individual right under the contract, not to handle Rayloc goods. It is as clear to me as it was to the District Court that these facts do not add up to a union-sponsored strike or union inducement of employees to engage in a strike. I know of no way in which this Union could have dissociated itself more clearly from the individual 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD views of its members or the exercise of their individual rights. It is true, of course, that the Union could have ignored the fact that its members were entitled under their contracts to make a personal de- cision on the handling of the unfair goods. It could have refused to provide them with the forum for the expression of their individual intentions. It could have reneged on its obligation under the con- tracts to inform the employers of the intentions of its members. Hav- ing gone this far, it could also have denied employees the protec- tion of their union in the event their employers, in violation of the contracts, retaliated against those who elected not to handle unfair goods. Apparently, this is the only course that the majority believes would have been proper for the Union in this case. To support its finding that the Union's conduct in this case con- stituted unlawful inducement under Section 8 (b) (4) (A) the majority relies upon the decision of the Supreme Court in Inter- national Brotherhood of Electrical Workers, Local 501, et al. v. N. L. R. B.50 The decision of the Court in that case, however, is not even remotely related to the facts that appear in this record. There the court faced the issue of whether Section 8 (c) immunized peaceful picketing "even though the picketing induces a secondary boycott made unlawful by Section 8 (b) (4)." 59 In quoting "pertinent language" from this decision the majority omits the topic sentence of the quoted paragraph, which reads as follows : so a. To exempt peaceful picketing from the condemnation of Section 8 (b) (4) (A) as a means of bringing about a secondary boycott is contrary to the language and purpose of that section. The words "induce or encourage" are broad enough to include in them every form of influence and persuasion... . It would seem clear, therefore, that the words "influence and per- suasion," as used by the Supreme Court, were intended to embrace conduct, such as peaceful picketing, whereby the union sought affirma- tively to induce, encourage, or persuade employes to engage in a strike for a forbidden objective. However broad those terms may be, they are not broad enough to include advice by a union to its members that, as individuals, they have a contractual right to refuse to perform certain work, particularly where, as here, they are also advised that each member must make a decision for himself and, having made it, is free at any time to reverse ;himself. To hold, as the majority does, that persuasion and influence resulted from "an incident of a `good faith' attempt by union officials to perform an' intra-union duty to `advise' the members" seems to me to, do violence both to the 58 341 U. S. 694. 58 Ibid., at page 701. 60 Ibid., at pages 701-2. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 431 Supreme Court's decision and the statutory language upon which it is based. In addition to its finding of "union sponsored" action the majority finds that certain remarks and the silence of individual job stewards in connection with the handling of Rayloc freight constitutes "direct evidence" that the Union violated Section 8 (b) (4) (A). The majority predicates this finding on the ground that the stewards were agents of the Union and "were expressly vested with sufficient authority so to act, as to warrant the inference that the actions here attributed to them fell within the scope of the delegated powers." The record in this case shows contrariwise, however, as the district court found, that these stewards were expressly limited in their authority to act on behalf of the Union with regard to strikes or other interruptions to the Employer's business. Article V of the collective-bargaining agreement provides as follows : The Employer recognizes the right of the Union to designate a job steward and alternate to handle such Union business as may from time to time be delegated to them by the Union. Job stewards and alternates have no authority to take strike action or any other action interrupting the Employer's business in violation of this Agreement, except as authorized by official action of the Union. [Emphasis supplied.] The Employer recognizes this limitation upon the authority of job stewards, and their alternates. The Employer, in so recog- nizing such limitations, shall have the authority to render proper discipline, including discharge without recourse to such job steward or his alternate, if he be an employee, in the event the job steward or his alternate has taken unauthorized strike action, slow down, or work stoppage in violation of this Agreement. . .." It is well established that the term "agent" as used in this statute means an agent under the common law rules of agency.s" Applica- tion of. such rules makes it clear that the above contractual provision, signed by the Employer and open to the employees' inspection, specifi- cally removed from the stewards' authority any right'on their part to speak for the Union in calling an unauthorized work stoppage or otherwise interrupting the Employer's business. Section 167 of the Restatement of the Law of Agency states the rule as follows : If a third person dealing with an agent has notice that the agent's authority is created or described in a writing which is intended for his inspection, lie is affected by limitations upon the authority contained in the writing, unless misled by the conduct of the principal. 01 Sunset Line and Twine Company, 79 NLRB 1487. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Based on the foregoing I can only conclude that the ambiguous comments of the stewards and their silence on several occasions in connection with the intention of employees to work on Rayloc goods was, if considered an inducement to strike, beyond the scope of their authority as agents of the Union. I turn now to the last and, in my opinion, most important issue in this case. Two members of the majority have undertaken to find a violation of Section 8 (b) (4) (A) by reference to, and incorporation of, the Interstate Commerce Act, which requires that common carriers generally must provide service without discrimination. While pur- porting to limit their decision to such employers, they rely, neverthe- less, upon the entire legislative history of Section 8 (b) (4) (A) to find that "the `hot cargo' contracts here involved are repugnant to the basic policies of the Act and in conflict with the public rights this Board is under a duty to protect." I have already discussed public policy as it relates to this section of the statute. I am not aware of, nor have I been able to discover, any additional legislative history creating a distinction between secondary boycotts affecting common carriers and those involving other employers. I shall therefore re- strict my discussion of this phase of the case to the issue, raised in the main opinion only, that "where the contracting employers are common carriers the existence of the Interstate Commerce Act destroys" the argument that under Section 8 (b) (4) (A) employers are free, at will, to cease doing business with any individual and to agree to this result. To what extent common carriers are or are not free under the Interstate Commerce Act to restrict their service to shippers is a matter to be decided by the agency established by Congress to make such initial decisions. To my knowledge the Board has never pur- ported to decide a question arising under another statute at a time when a decision involving that question is pending before the agency charged with the administration of that statute. Two questions now pending before the Interstate Commerce Commission are (1) whether a , common carrier is excused from his duty to transport freight be- cause he has agreed by contract with a union not to handle unfair goods,62 and (2) whether the public convenience requires the granting of an application for interstate operation of a carrier where the appli- cant charges that shipments have been refused by established carriers because the latter are bound by "hot cargo" contracts with unions rep- resenting their employees.63 The decision of the Commission may or may not be favorable to the theory that a common carrier's refusal to accept shipments because of the existence of a "hot cargo" contract is a reasonable regulation or practice in connection with his duty to provide "safe and adequate service." Obviously, neither I nor my 62 Galveston Truck Lines Corporation v. Ada Motor Lines, Inc., supra, footnote 57. 3 Nebraska Short Line Carriers Inc., Common Carriers Application, supra, footnote 57. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 433 colleagues can now foretell what that decision will be . The applicable provisions of the Interstate Commerce Act are contained in 49 U. S. C. 316 (b) and 316 (c ) as follows: It shall be the duty of every common carrier of property by motor vehicle to provide safe and adequate service, equipment, and facilities for the transportation of property in interstate or foreign commerce; to establish, observe, and enforce just and reasonable rates, charges, and classifications, and just and reason- able regulations and practices relating thereto... . Common , carriers of property by motor vehicle may establish reasonable through routes and joint rates, charges, and classifica- tions with other such carriers. . . . In case of such joint rates, fares, or charges it shall be the duty of the carriers parties thereto to establish just and reasonable regulations and practices in connection therewith. . . . [Emphasis supplied.] The Commission is the sole tribunal authorized by Congress to hold, subject to review by the courts, that the regulations and prac- tices of a particular common carrier, including its reliance upon "hot cargo" contracts in refusing to accept shipments, are either reasonable or unreasonable .14 Granted that the Board has a duty "not to ignore the other and equally important statutory schemes in administering our statute," that duty does not extend to a pronouncement of the law under such a statute before the tribunal charged with its enforcement has spoken. Section 8 (b) (4) (A) forbids a labor organization or its agents "to engage in, or to induce or encourage the employees of any employer to engage in, a strike. . . ." for a proscribed objective. [Emphasis supplied.] It does not forbid, and the Board has con- sistently so held,65 the inducement of employers. Now two members of the majority say that the Board has a duty to accommodate this statute to that of the Interstate Commerce Act by holding that a carrier-employer may not, at the request of a union, voluntarily agree to boycott the goods of another employer. They hold that the mere asser- tion of such,a contractual right "exposes the union to liability under Section 8 (b) (4) (A)." This, it seems to me, is something more than accommodation of our Act to the Interstate Commerce Act. It is legislation. Such 'a result was carefully avoided by the Court of Appeals for the Eighth Circuit in Meier & Pohlmann Furniture Com- pany v. Gibbons, 38 LRRM 2533, 2540-41 (April 1956). Faced with 64 "Questions as to the reasonableness of rules, regulations, and tariffs are for the Inter- state Commerce Commission, and until found unreasonable by it, a shipper may not maintain an action in,any court against a carrier upon the claim that any rule of regulation is unreasonable and that through its enforcement it has sustained loss , or damage." Balti-. more & Ohio R. Co. v. Brady, 299 U. S. 448, 456, 753 S. Ct. 441, 77 L.'Ed. 888 Pennsyl- vania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 131, 35 S. Ct. 484, 59 L. Ed. 867. 15 Arkansas Empress, Inc., 92 NLRB 255 ; Sealright Pacific Ltd., 82 NLRB 271. 476321-58-vol. 119-29 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this issue in a suit by a shipper for damages, the court would not presume to hold that "hot cargo" contracts were contrary to the public policy of the Interstate Commerce Act. Rather, the court looked to. the Labor Management Relations Act to determine, first, whether such contracts were legal and, second, whether they con a defense to conduct otherwise violative of the Act. The 'court pointed out that this statute proscribed secondary boycotts by labor organi- zations, but that "the prohibition does not extend to individual members of such organizations or to the employer." The court pre- termitted consideration. of the Conway's Express rule in view of contrary Board decisions. Unlike this Board, that court has juris- diction with regard to questions under both the Interstate Commerce Act and the Labor Management Relations Act. It seems to me that two members of the majority in this case are doing without statutory authority what that court with such authority has refused to do. Neither of the Hearing Examiners ' iii the cited cases before the Interstate Commerce Commission purported to pass upon the legality of the "hot cargo" contracts. In one case 66 the Examiner held that such an issue was "beyond the Commission's proper sphere of activi- ties." He found that the Commission was concerned with the lawful ness of the actions of the carriers "without regard to any contract which the carriers may have executed with a third party." In the other case 67 the Examiner found that "it would be unwise to attempt to use the certificate provisions of the Act to compel carriers to cross picket lines or to defy or ignore the actual or implied threats of their recognized union." He held that whatever defects in service resulted from the carriers' "hot cargo" contracts such defects were insufficient to warrant the conclusion that their services and interchange prac- tices were inadequate for public convenience and necessity. It would seem quite reasonable to me that a labor relations contract unlawful under the Labor Management Relations Act, urged by the carrier in a case before the Interstate Commerce Commission as an excuse for his failure to transport freight, might be considered by that body an untenable defense. But it does not follow that a contract, lawful under the express provisions of this statute, becomes unlawful because it may be held,to be inadequate as a defense to a charge that a partic- ular carrier has imposed an "unreasonable"' regulation in the transport of freight. Indeed, the Commission itself has specifically refused to express any opinion with regard to the legality of a contract between a carrier and a union which provided fora closed shop and contained a clause exonerating employees from the duty to cross a bona fide A. F. of L. picket line. The complainant had argued that the contract was incompatible with the carrier's duty to serve the shipper's plant. Galtie.ton Truck LineR Corporation'v. Ada Motor Line.q, Inc.. supra, footnote 57. Nebraska Short Line Carriers, Common Carrier Application, supra, footnote 57. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 435 The Commission rejected this argument, holding that the question is a matter involving the labor relations between the carriers and their employees over which we have no jurisdiction." [Emphasis sup- plied.] Montgomery Ward cC Co., Inc., v. Consolidated Freightways, 42 M. C. C., I. C. C. 225, 235. The Commission went on to find that the carrier in that case had acted reasonably in refusing to serve the ship- per as a result of a strike at the shipper's plant for which the carrier was not responsible . The issue of the contract's validity under the pub- lic policy of the I. C. C., raised by the main opinion in the instant case, is an issue that . the Commission itself has refused and presumably will continue to refuse to consider . This is so because the function of the Commission is to decide whether a carrier has acted "reason- ably," regardless of the legality or illegality of his contractual com- mitments. I take it the Commission has the power to decide that a carrier has acted unreasonably because he has refused to transport freight as a result of a lawful strike of his own employees . Is it then the duty of the Board, under the main opinion' s theory, to hold that such a strike is contrary to the public policy of the Interstate Com- merce Act and therefore unlawful under the Labor Management Re- lations Act? If this is so, how will my colleagues answer the mandate from Congress under Section 13 of the Act : "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." Will they say that the strike is unlawful because the Board has a duty to accommodate this statute to that of the Interstate Commerce Act? If I understand the "summarized " purpose of the main opinion it is a holding that the Board may in this case impose a qualification upon an employer's right to choose his customers because "the ICA in itself restricts and qualifies the common carriers ' freedom of choice in the respects noted." As indicated above, no decision of the ICC has ever, in fact, so restricted a common carrier . A blanket rule by the ICC forbidding common carriers to execute or rely upon "hot cargo" contracts under any circumstances would seem on the basis of their existing precedents an unlikely possibility . In any event, the boycotting of shippers by common carriers subject to the ICA, whether or not at the request of any persons , is a subject matter over which this Board has absolutely no jurisdiction . As Member Bean points out in his concurring opinion, this is not a situation where the Board and another Federal agency are both required to interpret and apply the same statutory provisions. Even in such a situation the Board normally defers, as a matter of comity , to the views of the agency primarily entrusted with the administration of the statute in which such a provision occurs. The ICC is charged by Congress with the duty of regulating the operations of common carriers among 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several States. This Board is charged with the duty of enforcing a proscription of secondary boycotts. Comity between governmental agencies does not require that the ICC find a common carrier in violation of the ICA because the Union representing its employees has engaged in a secondary boycott affecting the operations of the common carrier. Comity does not require that the Board find a union's conduct, otherwise lawful, unlawful under Section 8 (b) (4) (A) because a common carrier has, at the union's request, violated the provisions of the ICA. This Board does not have unlimited authority to find unfair labor practices not proscribed by Congress or to excuse such practices if proscribed by Congress. So far as is here pertinent, to find a violation of Section 8 (b) (4) (A) it must be proved by the General Counsel by a preponderance of evidence that a labor organization or its agents: (1) has engaged in a strike; or (2) induced employees to engage in a strike or concerted refusal in the course of their employ- ment to transport goods with an object; (3) to force or require their employer; (4) to cease doing business with any other person. The quantum of proof, required by the statute and all decisions of this Board and the courts, for an 8 (b) (4) (A) violation, would be reduced by the decision of two members of the majority as follows: It is prima facie proof of a violation of Section 8 (b) (4) (A) if (1) a union has a contract with a common carrier whereby the latter has agreed not to handle unfair goods; and (2) if a shipper of "hot cargo" has been denied an opportunity to utilize the transportation facilities of the carriers. I point out that what is stated to be "proof" of a violation of Section 8 (b) (4) (A) does not require a scintilla of evidence that a strike has occurred, or that any employee has been induced to strike, and requires only a minimum of evidence that any employer has been forced or required to cease doing business with another person. Public policy, whatever it may be under the Interstate Commerce Act or, indeed, under this or any other statute is not a substitute for evidence of a fact. The fact required by Congress under Section 8 (b) (4) (A) is that ' a union has engaged in or induced employees to engage in a strike. - The Board is without power to hold that public policy against "hot 'cargo" contracts creates a violation of Section 8 (b) (4) (A) where none would otherwise exist. Whether "hot cargo" contracts are desirable or undesirable, whether or not they should be per se unlawful is a matter for Congress, and Congress alone, to decide. To hold that the mere existence of these contracts may be a violation of Section 8 (b) (4) (A) seems to me outright legislation. Assuming, arguendo, that the Interstate Commerce Commission would ultimately decide that' these carrier-employers violated'their duty under the In- terstate Commere'e.Act when they executed "hot cargo" contracts; the TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 437 question must still be answered in this case whether the employers had, in fact, lawfully or unlawfully, authorized their employees to refuse to handle "hot cargo." If such authorization was given and con- tinued, it is immaterial so far as the Union is concerned that the em- ployers acted improperly. The union's only obligation under Section 8 (b) (4) (A) is to refrain from striking or inducing employees to strike. This section of the Act, wisely or unwisely, does not proscribe other means used by the union to achieve its objectives.: I must point out that the decision of two members of the majority in this case goes much farther than the majority's decision in the Sand Door case, supra, where the majority found actual inducement of employees by an overt act of the Union. Here, without such evidence, the main opinion holds that a contract, granting employees the right not to handle hot cargo, proves that the union, party to such a contract, has induced employees to refuse to work against the wishes of their em- ployer. This is as much as to say that when an employer says "no" he means "yes." Under such a theory a union induces employees to strike when it induces an employer not to require them to work. It goes without saying that the Board has never been authorized by Congress to hold that a union violates Section 8 (b) (4) (A) merely because a shipper has been denied an opportunity to use the trans- portation facilities of a carrier pursuant to an agreement between the latter and the union. It would also seem axiomatic to me that an employer's agreement with a union to deny services to another em- ployer cannot be considered a substitute for evidence of a strike or inducement of employees to strike. In my opinion, this Board should look to its own house and let the Interstate Commerce Commission, with the help of Congress and the courts, fortify and effectuate the purposes of that Act. APPENDIX NOTICE TO ALL EMPLOYEES 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 notify our members that : WE WILL NOT engage in, or encourage employees of Simpson Trucking Co., Akers Terminal Co., or any other freight car- rier employer in the Atlanta, Georgia, area employing members of our Union to engage in, a strike or concerted refusal to the course of their employment to process, transport, or otherwise handle or work on goods, articles, or commodities or to perform services for their respective employers where an object thereof is to force or require any such employer to cease doing business with Genuine Parts Company or with any like person or company 438 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD who has business relations with aforementioned freight carriers in the Atlanta area. TRUCK DRIVERS AND HELPERS LOCAL UNION No. 728, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER This case tests a "hot cargo" clause and novel procedure which was adopted, according to the Respondent Union , in an attempt to comply with the law as it "tried to do exactly what the law provided ." In any such attempt the Union would have to avoid in part at least ( the "hot cargo" clause being still relied upon ) objection found to union approaches to employees of secondary employers .' In the absence of attack on the contracts involved, the novel issue here is whether the Union could take any lawful steps in giving notice to employers under the contract , and if so, whether the steps taken were lawful . The question , under the cases noted, whether and under what circumstances a union may communicate with employees concerning observance of "hot cargo" clauses will not be considered since, on the other issue before us, it is found infra, that the Union did not in fact communicate with its members except in connection with the notice to the employer -carriers. The complaint herein , as amended , alleges that the Union has violated Section 8 (b) (4) (A) of the National Labor Relations Act, as amended , 61 Stat . 136, by inducing and encouraging employees of various employers other than Genuine Parts 2 to engage in a concerted refusal in the course of their employment to use , process, transport , or handle goods , articles , or commodities, or to perform any other service for their employers in connection with shipments to or from Genuine Parts, the object thereof being to force or require such other or secondary employers to cease using , handling, transporting, or otherwise dealing in Genuine Parts Products and to cease doing business with Genuine Parts . The answer denies the allegations of unfair labor practices, and further alleges that the Union acted pursuant to-its contracts with various employers and that it neither encouraged nor induced its members to refuse to handle Genuine Parts freight. A hearing was held before me at Atlanta , Georgia , from June 25 through 27, 1956, inclusive . Pursuant to leave granted to all parties, briefs were thereafter filed by the General Counsel , Genuine Parts, and the Union. Upon the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. COMMERCE AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that Genuine Parts, a Georgia corporation with principal office in Atlanta, Georgia, and warehouses and jobbing stores in 10 States, is en- gaged in distributing automotive parts at wholesale; that Rayloc is a division of Genuine Parts and is engaged in manufacturing and rebuilding automotive parts in ?Teamsters, Local 554 (McAllister Transfer, Inc.). 110 NLRB 1769, 1782 . That one of the opinions in that case which outlaws "hot cargo" clauses is the part which, if here fol- lowed, would invalidate the basis for the polling of its members by the Union. But as noted infra, the General Counsel does not here attack the contracts involved . See also Local 1976 . Carpenters ( Sand Door and Plywood Co.), 113 NLRB 1210 , 1219 ; Teamsters, Local 294 (Conway's Express ), 87 NLRB 972. 2 Since Genuine Parts is the Charging Party, its name will be employed herein whether reference be to the parent corporation . its Rayloc Division , or both , except where distinction is necessary and a different name required. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 439 Atlanta, Georgia, and Memphis, Tennessee, only the Atlanta plant being involved herein; that during the year ending March 31, 1956, Rayloc shipped from its Atlanta plant directly to customers outside the State of Georgia, products valued at more than $500,000; and that Genuine Parts is engaged in commerce within the meaning of the Act. It was further admitted and I find that the Union is a labor organization within the meaning of the Act. if. THE ALLEGED VIOLATION OF SECTION 8 (b) (4) (A) A. The union meeting of March 27 There is no dispute concerning certain facts as alleged in the pleadings and as further indicated on the record. The Union is the certified bargaining representative of Rayloc's production and maintenance employees. On March 12, 1956, the Union initiated a strike at Rayloc, and a week later established a picket line at Genuine Parts' principal office. In both a Southeastern Area Over-the-Road Motor Freight Agreement and a Southern Conference Local Freight Forwarding, Pickup and De- livery Agreement, entered into between the Respondent and various carriers in- cluding the secondary employers herein, is a "hot cargo" provision which reserves to the Union and its members the right to refuse to handle goods from or destined to places which are on strike (we need not concern ourselves with details which are not here relevant); it provides that the Union shall give to employer parties to the contract notice of its intent to strike an employer or of its members' intent not to handle "hot cargo" or so-called unfair goods; and after such notice is given, insist- ence by an employer party to the contract that its employees handle such unfair goods after they have elected not to do so shall be sufficient cause for an immediate strike against such employer. The 'testimony shows, and no question has been raised in this regard, that the provision in these contracts has been interpreted by the Union and its members as giving employers the right to discharge (certainly to replace) employees who refuse to handle unfair goods unless the Union has given the notice described. It appears further that of a total membership of some 5,500, approxi- mately 2,500 members of the Union are affected by these agreements and this provision thereof. The uricontradicted testimony is further to the effect that shortly after the dispute arose 'between the Union and Genuine Parts, many union members called the Union and inquired concerning Genuine Parts freight and the extent of their obligation to handle it, and that the union representatives advised them that they were not required to handle such freight, the choice or decision being their own to make; and that the Union, impelled by the frequency of these inquiries, and in order to comply with the provision for notice to the carrier concerning its members' intent, held a meeting on March 27 to ascertain such intent, approximately 400 members attending of the 2,500 affected. Mathis, the Union's secretary-treasurer, who presided at this meeting in the :absence of the president, testified that, after he referred to the certification, negotia- tions for a contract, the strike, and the many inquiries from members, a motion was made from the floor that the members refuse to handle Genuine Parts goods. This motion does not appear in the minutes of the meeting, Mathis and Vaske, the Union's recording secretary, explaining that the former had ruled it out of order and that it had not been seconded. Stressing the distinction between a resolu- tion which undertook to bind the members and one which only declared their intent and desire, Mathis thereupon drafted a resolution (he had previously consulted counsel) which was moved and unanimously carried, a single vote being by show of hands on the resolution and the motion to carry it. Referring to the strike at Genuine Parts, the resolution provided that . each member has the right to make an individual voluntary decision not to handle goods or equipment consigned to or from this Company. In accordance with this right each of the members has made and now an- nounce (sic) his individual voluntary decision not to hand (sic) such goods. Under the . Articles (of the agreements with the carriers), it is the obli- gation of the Union to give each employer notice of the intent of the mem- bers to refuse to handle these unfair goods and in order to comply with the obligations of these Articles, the officials of the Union are hereby requested to notify each carrier employer of the intent of these members to refuse to handle these described goods. It was further credibly testified that, after the resolution had been adopted, it was again explained to the members present that the action taken was not binding on 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, the members; it was only an expression of their individual decisions to support a notice by the Union to the carrier in accordance with the agreements. The Union sent such notice on or about March 28. The various employees who attended and testified concerning the meeting of March 27 can scarcely be relied upon for an accurate account of what there oc- curred. Woodbury's partisanship, it is clear, moved him to testify concerning mat- ters which he did not recall. On the other hand, to cite one whom I credit, Wallenhaupt, although intelligent and alert, had apparently been little interested in procedure, parliamentary or not; he did testify credibly only concerning the gen- eral tenor of the meeting and his impression and attitude both before and after it. There is no basis in all of this testimony for discrediting Mathis or for finding that the Union was guilty of unlawful inducement or encouragement at the meet- ing. In fact it was agreed at the hearing that there is no material controversy con- cerning what occurred at the meeting. While the fact of unlawful inducement and encouragement is "but the ultimate inference to be drawn" from the evidence submitted,3 the evidence herein presented does not warrant such an inference. Certainly it is at least as reasonable to find on this record that the meeting was called for the reasons stated by Mathis, and that the subsequent references to refusal to handle Genuine Parts goods related to the various employees' decisions and the Union's right under the contracts to call a strike in the event of an employer's insistence in the face of such refusals. Nor may we be swayed by a general skepticism. The question here is not whether subterfuge may have been resorted to, but whether subterfuge has been proved or even reasonably indicated to the extent that a finding of violation would follow. Here agreements were entered into which both permitted personal refusals by employees of secondary employers to handle goods of a struck primary employer, and required the Union to give notice in advance of such refusals. While not at all analogous, the situation reminds one of an employer's right in good faith to poll employees on their designation of a collective-bargaining representative where such designation is claimed. In the instant case the Union was by contract required to take action to preserve the employees' recognized right to refuse to handle Genuine Parts goods. True, the statements by Mathis and by others con- cerning the individual's right of choice may have been uttered with a figurative "nod or a wink or a code." 4 But when we reflect on what may have been, as much can be said of any statement made by anyone. We cannot find that, as a matter of law or in fact, the statements were not sincerely made and so understood. Nor, again, is there evidence, as distinguished from inference, which is considered infra, that they were accompanied by a "wink." Had the Union attempted separate contracts with each of the approximately 2,500 members employed by the various freight companies, a similar claim of subterfuge might be made and eloquently argued. Surely it could be urged that the very approach, if so systematic and thorough, constituted inducement and encourage- ment; nor would the "wink" theory be less available. It does not appear that any other procedure (the General Counsel has cited none although I early directed attention to the relevance of availability of a different and admittedly lawful pro- cedure), however burdensome, might have been adopted which could prevent or effectively bar a claim of subterfuge. Bearing in mind the host of cases in which a finding of violation has been based on a "realistic appraisal" or a "reasonable inference," 5 I cannot find that the procedure followed by the Union in this case was a subterfuge or that the Union in fact induced or encouraged employees in violation of the Act. Counsel for Genuine Parts does apparently propose a different procedure. While we would not generally weigh administration of a union 's internal affairs, it might be urged that a vote by a show of hands is under certain circumstances coercive. But counsel here goes even beyond an open ballot as he directs attention to "the fact 3N. L. R. B. v. Truck Drivers & Helpers Local Union No. 728 (Ford Motor Co.), 228 F. 2d 791, 796 (C. A. 5). 4 U. S. v. International Union, United Mine Workers of America, 77 F. Supp. 563, 566. Cf. the cases cited in the next footnote. See also Teamsters, Local 554 (McAllister Trans- fer, Inc.), 110 NLRB 1769, 1776: if otherwise unlawful, acts are not protected because they occur at a union meeting; but see footnote 9, infra. 6 Local 562, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc. (Charles E. Myles), 107 NLRB 542, 547; Thomas Rigging Company, 102 NLRB 65, 67; Local 667, International Brotherhood of Teamsters, etc. (Southwestern Motor Transport, Inc.), 115 NLRB 981. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 441 that ... an individual vote of each employee (was not) recorded at the meeting." Maintenance of such a record would scarcely bar a claim of union subterfuge, in- ducement, even coercion. Were it held that the Union's approach to its members via a meeting (or in any other fashion) per se constitutes inducement or encouragement regardless of what was there said and done and regardless of intent as testified to, it would follow that no lawful steps could be taken by the Union under the contracts to meet the pro- visions concerning notice. Although the contracts are not questioned, the issue concerning action taken thereunder is before us; and if they call for unlawful ac- tion, we can properly so find, declaring the action to be unlawful even if, since the General' Counsel does not so request, no findings be made that the contracts are unlawful. The difference in result would thus be more technical than real; while the remedy would not be directed toward the contracts, it would effectively bar action under them. But the action which the contracts require is only notice by the Union of its mem- bers' intent, The statute does not declare illegal a refusal by secondary employees to handle goods with any of the objects or purposes therein stated, but only induce- ment or encouragement thereto by a labor organization. Hence, to the extent that employees have and exercise a desire or intent not to handle struck material there is no violation. If to this be added notification of such desire or intent to the various secondary employers by the employees' representative, we have no unlaw- ful act per se. It might be argued that notice by a union under such circumstances is violative because it results in action which is indistinguishable from that which results from violative inducement and encouragement. But this argument must fall since, first, the polling of employees and the notices given are not prohibited by the Act in the absence of otherwise violative conduct; second, such acts are not inherently wrong by any recognized standards; and finally, the cases which recognize and find subter- fuge and infer violation do not hold that every approach by a union to its members is a violation per se. Recognizing that "the objective of the union's secondary activities ... and not the quality of the means employed to accomplish that ob- jective . was the dominant factor motivating Congress in enacting (this) pro- vision," 6 we must find the objective unlawful before declaring violation. But to prove unlawful objective it is not enough to argue that the overt acts noted would be the same if the objective were unlawful; for this would be proof of the acts only plus an inference of unlawful objective, which inference is not demanded by the facts and, being in this argument admittedly indistinguishable, is no more consistent with them than is a lawful objective. Nor, while easily derided, is it fanciful to acknowledge that the collective recog- nition of the individual attitudes at the union meeting of March 27, did not change the nature of the various attitudes from individual to collective. As noted, the contracts made such recognition by the Union necessary by their requirement that it notify the various employers of the intent of its members to refuse to handle struck goods. Further, the uncontradicted testimony is that after the vote was taken the members were again told that each still had the right to decide for himself whether or not he would handle Genuine Parts goods. Conceding the Union's right to notify the employers, the General Counsel, as does counsel for Genuine Parts, questions its right to take a vote or other "formal action." But it does not appear how the Union could reasonably have ascertained the intent of its members if it had not taken some formal action, more specifically a vote. Surely it would have been leaning on a weak reed had it relied on and cited only the inquiries, although numerous, from its members. It must be remembered that under the contracts the Union was not called upon to certify only that any given number of its employees had inquired, over the telephone or in person; the requirement was that it notify the carriers of its members' intent, and the procedure suggested by counsel for Genuine Parts that "this information (concerning calls by individual members) could have easily been passed along, pursuant to the contract, to the carriers" would hardly have sufficed as proof of general intent. Nor under the contracts, must the Union risk discharge of its members and then follow the grievance procedure to obtain their reinstatement. In the recent Firchau Logging case,7 although the primary employer was placed on the "unfair list" and the membership voted at a meeting not to handle that employer's goods, the Board found no violation on the employees' declaration that International Brotherhood of Electrical Workers, Local 501, et at. v. N. L. R. B., 341 U: S. 694, 704. ' International Woodworkers of America, Local 7-140 (Firchau), 115 NLRB 711. 442 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD, they refused to handle such goods because it was against their own inclination and because of union instructions, the latter being hearsay. Certainly, the finding in each case will depend on the nature of the discussion and the circumstances surrounding it.8 Analysis of the statute and consideration of other decisions indicate that under the circumstances which here existed, with the requirement that the Union notify the carriers of its members' intent, the calling of a meeting, presentation of the issues, and adoption of a resolution indicating such intent, as here occurred, are not violative. (Consideration is further given infra to the question whether subsequent events indicated that these acts were nevertheless violative.) The conduct and events at the meeting herein are in further marked contrast to those in the Swift and Company case 9 which the Board there found it unnecessary to consider. Yet we may note the Circuit Court's expression of its "considerable doubt whether the Board would consider these appeals (at the Union's meetings and through its literature) to be violations of section 8 (b) (4) (A)." B. Other alleged inducement and encouragement Evidence was also received concerning alleged acts or incidents at the terminals of secondary employers. Taut, terminal manager for Benton Rapid Express, testi- fied that prior to March 28, the situation was confused as his men would handle Genuine Parts freight one hour and refuse to handle it the next . Since the be- ginning of the picketing at Genuine Parts on March 19, his pickup man had" refused .to cross the picket line there. On March 28, Tant found 'on,his desk the Union's notice that his men had elected not to handle Genuine Parts freight; thereafter they refused to handle it. Tant testified further that Assistant Business Agent Johnson and a Mr. Bell on March 28 "confirmed that the men had individually elected not to handle the freight and that we probably would run into difficulty if we tried to force them to handle it or load it. .. In view of the contract provision that insistence would be cause for a strike, this "friendly tip" was not violative of the Act; nor was there any violation in a telephone conversation between Mathis and Tant. When the latter asked his men, one at a time, whether they would handle Genuine Parts freight, each replied, "I personally refuse to handle it." Once, on or after March 28, Wallace, the steward on-the job, told Tant, "We are not going to handle it. The men have indicated individually that they are not going to handle it." Tant testified that after the letter of March 28, he asked but never insisted that the men handle this freight. On one occasion, according to Tant. Wallace said that he had been told to tell Tant that the men were not. going to handle the freight. Tant did not know who so instructed Wallace. It appears, although not clearly, that it was in the same conversation that Wallace allegedly told Tant, on March 28 or 29, that he had received orders not to handle Genuine Parts freights; he did not tell Tant who gave the orders. From Tant's later testimony, it appears that Wallace referred to the Union's letter of March 28, and it is not clear whether he regarded that letter as his "orders." Wallace denied that Tant asked whether the men would handle Genuine Parts freight, and that he replied that they had orders not to. He testified that when Tant asked what would happen if he (Taut) asked the men to handle it, he replied that Tant would have to wait until he gave such orders to see what would happen, meaning that he would then see whether the men would handle the freight or refuse. A few men asked him what to do about Genuine Parts freight, and, showing them a copy of the local or city contract, he told them that the decision was their own to make; he had no right to tell them whether or not to handle it. He had not seen the Union's letter of March 28, and when Tant asked whether he wanted to see it, he replied that he didn't want to know anything about it. Such testimony suggests that Wallace had little or no information or authority, and that he sought none. Aside from the question of credibility here, we are asked to find that the orders mentioned were given to Wallace by the Union; then that Wallace, as a steward, was an agent to the extent that his alleged statement to Tant, otherwise inadmissible hearsay, would be binding on the Union; and finally, while for the purpose of show- ing authority Wallace was an agent of the Union, that the orders allegedly given him as such agent were received by him as a rank-and-file employee, thus providing ,the element of inducement and encouragement. 8 See General Drivers, etc., Local No . 886 (American Iron and Machine Works Company), 115 NLRB 800. . 9Amalgamated Meat Cutters, etc., Local 88 (Swift and Company), 113 NLRB 275, 279, affd. C . A., D. C. TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728 443 The final element, that of duality, poses no problem here.10 But the issue of the stewards' authority must be determined for the effect of statements attributed to them and, in fact, to pass upon the admissibility of testimony that such statements were made. In the face of objection by counsel for the Union that such testimony was and had been declared hearsay by the District Court on the application for a temporary injunction, I withheld ruling and permitted the testimony to be given for the stated reason that admissibility of the statements depends on the authority or status of the person quoted. The president of the Union is also the business agent. There are seven assistant business agents, each assigned to specific employees and their employers. The Union's bylaws provide that stewards, who serve at each place where 10 or more men are employed, are to examine dues books, report on standing of members and employment of nonmembers, and function as therein set forth with respect to dis- agreements and grievances. It was testified that the only deviation from the printed rules is the selection of stewards by vote of the employees in the respective plants before they are appointed by the business agent or assistant business agent. Itself minor, this deviation relates to the selection of stewards, not to their duties or authority. It was further testified, and without contradiction, that the stewards' duties include posting notice of union meetings on bulletin boards at the respective plants, and transmission of messages, in writing only, from the business agent or assistant business agent; also transmission of oral messages from members to an agent, these latter of course not being union instructions. The situation here is in marked contrast to that where a steward's duties and authority are such as to impose liability on his union.ll It is clear that, under certain circumstances, stewards with authority to check dues and report to their union may assume or be held out as having greater authority.12 But the testimony before us is that the stewards' authority was strictly circumscribed; there is no sufficient basis for holding the Union responsible for their alleged statements. The Southwestern Motor Transport, Inc.,13 case, cited by the General Counsel, indicates that the testimony concerning what stewards Wallace and Woodbury, the latter infra, allegedly said is hearsay and inadmissible on the issue before us. The Board declared in that case: The record establishes that the Respondent's stewards have the customary duties and authorities of union stewards, including, as Shafer testified, the trans- mission of messages and instructions from the Respondent to the Respondent's members. Under these circumstances, and in the absence of any other explana- tion in the record, the only reasonable inference is, and we find, that the instructions referred to by Walker were instructions which he had received from an official of the Respondent for transmission to the Yellow Transit em- ployees. We further find that as Walker's statement was made concerning a matter within the scope of his authority as an agent of the Respondent, Secrest's testimony concerning that statement is admissable, not only as evidence that the statement was made, but also as evidence bearing on the truth of the subject matter of the statement. But here, as noted, the record indicates that stewards have no authority to transmit oral instructions; and there is no evidence of written instructions not to handle goods. Nor is there evidence that the stewards received any orders in this con- nection for transmission to employees. Hence, Wallace's statement, if made, was not "concerning a matter within the scope of his authority as an agent of the" Union.14 The testimony concerning that statement is therefore inadmissible on the issue whether the Union had in fact issued orders not to handle Genuine Parts freight.' Tant's testimony fails to show unlawful inducement or encouragement. Simpson, president of Simpson Trucking Company, Inc., testified that his drivers had consistently refused to cross the Genuine Parts picket line for pickup or deliv- eries. On April 6, a Genuine Parts truck backed up to the Simpson dock with parts to.be unloaded. Simpson saw Roan, the dock foreman, and Woodbury, the union 10 Cf. United Brotherhood of Carpenters, etc., Local .# 517 (Gil Wyner Construction Com- pany), 112 NLRB 714, 716. 11 Ibid. 12 Cf. Harrison Steel Sheet Co., 94 NLRB 81, 82; Mansbach Metal Company, 104 NLRB 797, 798. 13 Footnote 5, supra. 11 Cf. also International Brotherhood of Teamsters, Local 182 (The Lane Construction Corporation), 111 NLRB 952, 953. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD steward, engaged in conversation . The latter, with the bill of lading in his hand, said "he was sorry he wouldn't be able to handle this freight because it was for General Parts." (Simpson obviously meant Genuine Parts when he several times mentioned General Parts.) When Simpson urged that some effort be made to handle it to avoid a possible suit, Woodbury allegedly replied , "Well I will have to call the union hall and see what they say." Woodbury then made a telephone call and returned to 'say that he was sorry, he couldn't handle it. Asked to whom he had spoken, he named an assistant business agent, Pulliam , as having asked him not to handle the traffic. Simpson (or Ryan, his vice president and general manager, who was with him during most of these conversations and generally supported his testimony ) also asked Woodbury to ask the men whether they would handle the goods, but Woodbury replied that he couldn't. Simpson then asked 3 or 4 of the dockmen, 8 or 10 being present, whether they intended to handle this traffic, and they also replied that they couldn't handle it. He later asked Fulcher, _a checker, Search, another employee, and Wallenhaupt, a driver, each of whom said that he wasn't able to or couldn't handle the freight , "or words to that effect." No more than did Simpson are we here to rely on the employees' use of a form of the verb "can" as indicating re- straint, whether by the Union or by anyone else. It does not appear that the gram- matical niceties were considered by any of the persons involved . Simpson was testi- fying to various refusals: except for Woodbury 's telephone conversation with Pul- liam, he did not suggest , that any employee indicated that he was under restraint or inducement. The finding and conclusion in that respect are to be based on the entire record on this point . It may be noted that Search's complete reply was that "He was sorry , he wouldn't be able to handle it, he was just one man with the group there." Wallenhaupt, who was clear in his explanation of the decision as his own and the reason ' therefor, appears to have been voicing the attitude of all but more clearly than the others. Parenthetically, his_testimony was more specific and reliable than Simpson's or Ryan's, as these latter at times -did not distinguish among the various employees . There is no evidence of violation in these refusals. When Simpson asked the men on the dock whether they would object to his han- dling the goods, they replied that, if he did, the boys would probably walk-off the job. Whether a statement of probability following the provisions of the contract, or even a threat, this does not support the allegation of violation. . Simpson later added that, when he asked Fulcher, the latter, in Woodbury 's' pres- ence, "said if the steward told him not to handle it , he couldn't handle it." Fulcher, although confused in his understanding of what is legal, was clear and positive that the decision not to handle the Genuine Parts freight was his own and was not forced upon him. He agreed with Simpson's earlier testimony concerning his refusal, but denied that he had told Simpson that he would not handle the goods as long. as the steward told him not to. Aside from the issue of credibility here and even if the conditional statement which Simpson attributed . to Fulcher be construed as indicat- ing that Woodbury had in fact told Fulcher not to handle the Genuine Parts goods, and Woodbury's failure to deny as confirmatory, we still face the question .of its admissibility against the Union. Woodbury testified that, when he saw the Genuine Parts bill of lading, he told the dock foreman that he would not handle the freight because it was "unfair goods"; that Simpson and Ryan came up, and that the former asked Woodbury to tell the other men to handle it, Woodbury replying that he wouldn't and that it was up to Roan to tell them. Woodbury also testified to refusal by some of the others when Roan asked them. Only with respect to the telephone call and his statement after it did Woodbury's testimony differ substantially from Simpson's and Ryan's. That Woodbury was not a reliable witness, I have already indicated. I do not credit his denial that he told Simpson that he would call the Union about this Genuine Parts freight, or his testimony that he called then only concerning a question about, vaca- tion. Whatever his purpose in making the call, his assistant business agent, Johnson, was not in and Woodbury spoke with Pulliam, who could not arrange the vacation matter. Woodbury testified that he "mentioned a little bit to him about" what had just occurred concerning the Genuine Parts freight , telling Pulliam that all of the men had refused to handle it; and that Pulliam, reluctant to get involved because this warehouse was not under his supervision , said that they could do that, i. e., refuse, if they wanted to: it was for them to make their choice or decision. Woodbury further denied that Pulliam told him not to handle the Genuine Parts freight onto tell the men not to handle it; in this he was corroborated by Pulliam. Before we consider what Woodbury reported to Simpson after the telephone call, and the effect of such report, I find first that there is no basis on the evidence be- fore us for a holding that Pulliam in fact induced or encouraged Woodbury or the TTRVCK DRIVERS AND HELPERS LOCAL UNION NO . 7.28 445 ether men 'by telling them not to handle Genuine Parts goods . On the issue of credi- bility, I accept Simpson's and Ryan's testimony, supported by Bailey of Genuine Parts, that Woodbury, although he and the others had earlier refused to handle those items, reported that Pulliam had told him to refuse . Whether in so doing Woodbury sought to mollify Simpson by transferring the onus to another , we need not specu- late. But, for the reasons stated with respect to the statement allegedly made by Wallace, such a statement was outside the scope of Woodbury 's actual or apparent authority ; even if made by Woodbury , it would not impose liability on the Union, and the testimony concerning what Woodbury said to Simpson is inadmissible to show that Pulliam asked that the men not handle Genuine Parts goods . No more admissible as against the Union or binding on it is the alleged statement by Fulcher, supra. Hanson, terminal manager for Akers Motor Lines, Inc.,. testified that his men= refused to cross the Genuine Parts picket line, but that through March 29 its freight- was brought by a local drayage firm to the Akers terminal, where the men raised- no question concerning handling it. On March 28, he received a copy of the Union's letter advising of the action taken at the meeting the day before and the men 's intent as there indicated . Late in the afternoon of the 29th , after the freight for that day had been handled , Hanson asked Fischer, the white steward , what the men would do if Genuine Parts brought freight in, and Fischer replied , "Well, as bad as we hate to refuse to handle it, we will have to refuse to handle it any more." On the after- noon of the 30th , Hanson asked Butler, the colored steward , what his men were going to do, and Butler replied , "We would have to refuse to handle the freight." (Concerning any suggestion , none having been made to this point , of restraint be- cause the words "have to" were used , what has been said supra with respect to the 'statements by employees of Simpson that they "couldn 't" handle the freight is here applicable.) Clearly, the statements by Fischer and Butler did not themselves constitute un- lawful , inducement or encouragement . Whether. they evidenced such unlawful in- ducement or encouragement by the Union because theretofore the men had handled Genuine Parts goods, we can only speculate . True, union representatives may have induced or encouraged the later refusal. (The statements that the men did there- after, refuse to' handle Genuine Parts freight were stricken without objection and on consent: Later, Bailey, Genuine Parts' shipping manager, testified that Hanson's assistant-refused a shipment on April 2. ) But it is also true. that'the men may have decided of their own volition to take such a stand; and this is: more likely in the light' of the evidence before us . If, in the latter event,-they were incidentally influ- enced by the action of the other employees or by knowledge that they could lawfully refuse, the statements that they would now refuse would not make unlawful the Union's action of March 27 . This latter, if lawful in motivation and act, as found supra, would not become unlawful even if it influenced some employees who .had been. willing. to handle these goods, to refuse .. But further, there is no evidence that Aker :or other employees were so influenced . They may have been among those union members who first wanted the Union to give notice , tinder the contracts before they refused' to handle this freight. ' With full appreciation of the difficulty which the General Counsel faces in proving 'a case under such circumstances , the decision must still be based on the testimony . There is room id a reasonable evaluation of the testimony for credibility findings and fair inferences; but not for insufficiently sup- ported suspicions, whatever the problems in ferreting out supporting facts. On March 30 Mathis called Hanson and told him that he was not supposed to handle Genuine Parts freight , and threatened to strike Akers if it handled any more. But .Hanson later agreed that Mathis referred to the contract provisions concerning carriers' insistence after notice by the Union, Hanson pointing out that there was a difference between merely asking and insisting. Butler, called - by the General Counsel, was patently a reluctant witness. But in addition to the question of his authority as a steward and the Union 's liability for his acts or "statements , no finding, pro or con , could properly be based on his testimony, as review of such testimony will readily disclose. Reference has already been made to certain testimony by Bailey. He testified further that on April 6 Simpson asked a colored employee and *a white employee, neither further identified , whether they would handle the Genuine Parts freight; the one answered that he couldn't because Woodbury, who was within hearing range, wouldn't let him , the other that he couldn't because he had been told not to. "Mr. Simpson asked him who told him . He said he was just told." If we would guess ' that these two employees were Fulcher and Search , and aside from the fact that .Bailey's testimony differs in this connection from that of Simpson and Ryan, such testimony is no more persuasive to impose liability on the Union 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than that already considered. Nor would refusal to cooperate, indicated by a driver, probably Wallenhaupt, who according to an unidentified employee "used to be a Drivers' steward," constitute a violation by the Union. No evidence in support of the allegations was offered concerning Pilot Freight Carriers, Inc., Great Southern Trucking Company (one of whose employees testified), or other employers referred to in the complaint. On the issue of induce- ment by the Union generally, Mathis testified that he knew of a number of cases where members did handle Genuine Parts freight after the resolution was passed, but that the Union took no action against them. He testified also that some employers (he did not recall who) reported that some members wanted to handle such freight and inquired whether the Union would take action against them; and that he replied in the negative. Several employees, called by the Union (with many others available), testified that the Union and its stewards did not tell the men that they were not to handle Genuine Parts freight, but on the contrary did tell them, when they asked, that they had the right to handle it or not as they chose. (Earlier, the stewards had told them that they didn't know whether or not they should handle it; and the men did.) What weight such testimony would carry in the face of inducement or encouragement of other employees need not now be determined. In the absence of proof of such inducement or encouragement, it is unnecessary to evaluate it although it was received for its bearing on the issue of unlawful intent or objective. Various provisions of the Union's bylaws and its International's constitution have been cited as relevant. It is not claimed that these are in violation of the Act. Nor do I find that they provide proof or basis for reasonable inference of violation in the acts which are alleged to be violative. Were the General Counsel to urge that handling of unfair goods would violate the provisions against disrupting or injuring the Union or would constitute disobedience or disloyalty, and would lead to imposition of penalties on the members involved, more than such argument would be necessary to convict the Union of inducement or encouragement in the face of the testimony received. Nor on the record before us, can I adopt the argument "that there were some sort of instructions, perhaps explicit or perhaps implicit, in the other actions of the Union, and that these instructions were understood by the stewards and by the individual members who attended the meeting, also that they were not relieved of this understanding by any statement that . they should make individual and voluntary decisions on whether or not they should handle the freight." Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Genuine Parts Company is engaged in commerce within the meaning of the Act. 2. Truck Drivers and Helpers Local Union No. 728, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. The Union has not engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A) of the Act. [Recommendations omitted from publication.] The Stearns and Foster Company and Textile Workers Union of America, AFL-CIO, Petitioner The Stearns and Foster Company, Petitioner and Employees' Association of The Stearns and Foster Company and Textile Workers Union of America, AFL-CIO. Cases Nos. 9-RC-3056 and 9-RM-148. November 8,1957 DECISION AND DIRECTION Pursuant to the provisions of a .stipulation for certification upon consent election, duly executed by the parties hereto on March 15, 119 NLRB No. 51.