Chauffeurs, Teamsters, Etc., "General" Local No. 200

650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees wronged by an employer's unlawful discrimination must, under pain of sustaining willful losses, thus cooperate with a wrongdoing employer by accepting less than the full reinstatement which is their due, while the effects of that em- ployer's unlawful conduct continue to remain unremedied, is to provide employers, desirous of engaging in discriminatory conduct, with a ready device by which they may be assured of the continuing benefits of their unlawfulness while being insured against its costs Such a rule could only tend to encourage, not discourage, the com- mission of unfair labor practices, it would not be such as to effectuate the policies of the Act For the reasons indicated, I conclude that the guards' failure to comply with the request contained in the Respondent's letter of November 18, 1958, was not a clearly unjustifiable refusal on their part to take desirable new employment so as alone to preclude the further running of backpay, as contended by the Respondent The holding in this case with regard to willful losses is, of course, limited to the precise issue which was litigated at the hearing It is not intended to prevent the Respondent from showing, if it can, at the compliance stage of this proceeding that the affected employees are otherwise chargeable with willful losses of earnings, in ac- cordance with established law-see, Southern Silk Mills, Inc, 116 NLRB 769, and cases there cited Accordingly, it is recommended that the Respondent be affirmatively ordered, in accordance with usual Board policy in cases such as this, to reopen its plant protec- tion department at the Ford Road plant and offer to the employees involved in this proceeding who were discharged on November 3, 1958, immediate and full rein- statement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges See The Chase National Bank of the City of New York, San Juan, Puerto Rica, Branch, 65 NLRB 827 It is further recom- mended that the Respondent be ordered to make such employees whole for any loss of pay suffered by reason of the discrimination against them Loss of pay shall be based upon earnings which they normally would have earned from the date of the discrimination against them to the dates of offer of reinstatement, less net earnings, and shall be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meamrg of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 By discriminating with respect to the hire and tenure of employment of Ray- mond 7 McMahon, William Santini, and Melvin Hilliard, thereby discouraging membership in the Union, the Respondent has engagee in and is engaging in unfair labor practices withi the meaning of Section 8(a) (3) of the Act 4 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication I Chauffeurs, Teamsters and Helpers "General" Local No. 2001 and Milwaukee Plywood Company. Case No 13-CC-183 Feb- rttary 15, 1960 DECISION AND ORDER On June 9, 1959, Trial Examiner William R Ringer issued his Intermediate Report in the above-entitled proceeding, fmdmg that I Herein called Local 200 126 NLRB No 80 CHAUFFEURS, TEAMSTERS, ETC., "GENERAL" LOCAL 200 651 the Respondent had not engaged in certain unfair labor practices and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Milwaukee Plywood Company filed exceptions to the Intermediate Report and supporting briefs.2 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modification. The Trial Examiner found, and we agree, that Respondent Local 200 did not violate Section 8(b) (4) (A) by instructing 'its members, generally in response to telephone calls, that the picket line of its sister Local 743 at Milwaukee Plywood plant should be observed. Milwaukee Plywood, as a wholly owned subsidiary of Aetna Plywood and Veneer Company, was engaged in a labor dispute with Local 743. The picket line, accordingly, was a lawful exercise of Local 743's right to strike. The Board is in accord with the Trial Examiner's conclu- sion that Local 200's conduct does not fall into the category of unlaw- ful secondary activity by virtue of the fact that Local 200 was assist- ing Local 743. Under Section 8(b) (4) (A) the legality of a strike or the induce- ment thereof hinges upon the means used to accomplish an unlawful objective. The fact that one labor organization rather than another is engaging in allegedly unlawful conduct does not afford a basis to resolve the issue of legality. Here the conduct of Local 200 in re- sponding to inquiries of its members was not substantially different from the impact of the picket line itself or responses elicited from the pickets at the Milwaukee Plywood plant. Accordingly, we find it unnecessary to consider the applicability of Interborough News Com- pany, 90 NLRB 2135, or The Pure Oil Company, 84 NLRB 315, upon which the Trial Examiner relies.3 [The Board dismissed the complaint.] MEMBERS RODGERS and JENKINS took no part in the consideration of the above Decision and Order. 3 Milwaukee Plywood's request for oral argument is denied as the record, exceptions, and briefs , in our opinion , adequately present the issues and positions of the parties , Member Bean concurs in the result. However, he would adhere to the Board s deci- sion in Interborough News Company, supra, which he believes is dispositive of the issue presented. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges and amended charges , both duly served , complaint and answer and notice of rescheduled hearing, a hearing was conducted by me on March 19, 1959, 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Milwaukee, Wisconsin, on the issue of alleged violation by Respondent Union of Section 8(b)(4) (A) of the Act, by inducing employees of five named trucking companies concertedly to refuse to transport goods to or from the Charging Party's plant, with an object to require said carriers to cease doing business with Milwaukee Plywood Company. More specifically, the complaint alleges that the Union "ordered, instructed, directed, requested and appealed to" such "employees .. . not to pick up or deliver merchandise, at, to, or for" the Charging Party. All parties were rep- resented at the hearing and given full opportunity to present evidence. No witnesses were called, but all parties stipulated to the introduction in evidence of the transcript of the testimony taken in a hearing before the District Court for the Eastern District of Wisconsin in Civil Action 58-C-278 against the Respondent Union and Local 743, a Teamsters local of Chicago, hereinafter identified more particularly, both charged with violation of Section 8(b) (4) (A). The said civil action was a petition seeking an injunction against both said locals of the Teamsters, pending the deter- mination by the Board of Case No 13-CC-183, this instant proceeding. Said peti- tion was brought under Section 10(1) of the Act.' The testimony so stipulated as a part of this proceeding was taken in said District Court hearing on September 11, 12, 17, 19, 25, and 26, 1958 Oral argument was made at the close of the hearing on behalf of the parties and each has submitted briefs. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER (CHARGING PARTY) The Company is a Wisconsin corporation, engaged at Milwaukee, Wisconsin, in the sale and distribution of plywood and related products. The Company alleges, the answer of the Respondent Union admits, and at the hearing and in their briefs the parties assume, that the Company has been and is engaged in commerce within the meaning of the Act, having in 1957 typically purchased merchandise valued at more than $1,000,000, which was shipped to it directly from points outside the State of Wisconsin. It is the wholly owned subsidiary of Aetna Plywood and Veneer Company, located in Chicago, Illinois, likewise engaged in the sale and distribution of plywood and related products and referred to herein as Aetna Plywood. II. THE LABOR ORGANIZATIONS INVOLVED Chauffeurs, Teamsters and Helpers, "General" Local No. 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent Union, or Local 200, is a labor organization within the meaning of the Act. Its headquarters are in Milwaukee. Local 743, Warehouse & Mail Order Employees Union, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Local 743, is a local union of the Teamsters with headquarters in Chicago, Illinois. III. THE UNFAIR LABOR PRACTICES Background Local 743 and Aetna Plywood have had a labor dispute at its Chicago plant since July 1958, and since July 22, 1958, certain of its employees have been on strike. On or about August 4, 1958, Local 743 in support of its dispute with Aetna set up a picket line at the premises of Milwaukee Plywood in Milwaukee. Local 200, the Respondent Union in this case, as indicated above, is a local of the Teamsters in Milwaukee and is charged in this case with violation of Section 8(b)(4)(A) on account of its assistance to Local 743 in the latter's picketing activities in Milwaukee. The Issues Involved There is essentially no dispute as to the facts as testified about at the injunction hearing and constituting the record in this case, nor as to the legal issue to be decided in this proceeding. The General Counsel in his brief points out the most that the evidence can be considered to show, to wit: presence at Local 743's picket line of at 'During said hearing in the District Court the Charging Party withdrew its charge against Local 743 in the instant-numbered case, evidently with the consent of the General Counsel, and the petition for an injunction was dismissed by the District Court as to Local 743 The complaint in the instant case did not name Local 743 as a party and contained no allegations with respect to It. CHAUFFEURS, TEAMSTERS, ETC., "GENERAL" LOCAL 200 653 least one officer of Local 200 on at least one occasion; members of Local 200 who were employees of carriers ordinarily delivering to and receiving merchandise from Milwaukee Plywood were instructed by officers at the office of Local 200 not to go through the picket line of Local 743 at Milwaukee Plywood's plant; by telephone calls by officers of Local 200, employees of such carriers were instructed not to go through the picket line; threats by officers of Local 200 to a neutral carrier to set up picket lines at his plant if its employees crossed Local 743's picket line .2 The parties in their briefs and oral argument argue the case from their respective view- points upon the generally recognized inference that the facts show that Local 200 has induced and encouraged its members who are employees of trucking companies by order, instructions, directions, requests, and appeals made from the picket line not to cross the picket line of Local 743. The Trial Examiner finds that the Re- spondent Union has so induced and encouraged the employees of trucking com- panies not to cross the picket line of Local 743 at the premises of Milwaukee Plywood. The Legal Issue Involved The charges and complaint as to the Respondent Union is based upon Section 8(b) (4) (A) of the Act, providing as follows: Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials or commodities, or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; .. . This section as particularly applicable to the allegations of the complaint is as follows: Sec. 8(b) It shall be an unfair labor practice for a labor organization or its agents- (4) . .. to induce or encourage the employees of any employer to engage in . a concerted refusal in the course of their employment to . . . trans- port . any goods . where an object thereof is: (A) forcing or requiring . . . any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; .. . It would seem from a comparison of the important words in the section above set out with the facts in this case that the instant situation falls within the literal wording of the section. Local 200 is a labor organization; the acts of representa- tives of Local 200 induced and encouraged by instructions, admonitions, and per- suasion ; the employees of any employer certainly include the drivers of the trucking companies seeking to deliver or pick up merchandise at Milwaukee Plywood premises. There was a refusal by these drivers to cross the picket line as herein- after mentioned; it would seem at first thought at least that the refusal was concerted although a number of cases including International Rice Milling, hereinafter dis- cussed, may definitely affect the conclusion on this point; the refusal by the drivers of trucking companies was clearly in the course of their employment; the transport- ing is definitely shown by the drivers appearing at the picket line with their em- ployers' goods to deliver, or at the picket line to pick up for their employers; the words "any goods" refer definitely to the merchandise at the picket line which the drivers declined to deliver or pick up. The unfair labor practice described in the section requires also that there exists in the labor organization or its agents an object of forcing or requiring any employer to cease doing business with any other person. These requirements as to object 2 This is clearly not a violation of Section 8(b) (4) (A), since directed to an employer and not to employees. Sealright Pacific Ltd, 82 NLRB 271. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seem, also at the first reading, to be satisfied . The use of "an" and not "the" in connection with object seems to indicate that object need not be the principal one; "forcing or requiring," after the earlier use of "refusal . to transport" seems satisfied by the expectation of nonviolent pressure resulting from such refusal; •'any employer" is satisfied by the trucking companies ; and "cease doing business with any other person" seems satisfied by the trucking companies becoming unable to deliver or pick up merchandise at the Milwaukee Plywood premises as they would otherwise normally do. It should be noted preliminarily that the literal language of Section 8 (b)(4)(A) above set out would similarly cover the "ally" cases held by the Board and the courts not to have been contemplated by this section .3 We start therefore with the assumption by all representatives in this proceeding that picketing is permissible by the striking union at the premises of the struck employer in the ordinary case and that it is an incidental aspect of a legal strike with picketing to request and attempt to persuade persons who appear at the premises for the purpose of delivering or picking up merchandise in the usual course of business that they not cross the picket line. International Rice Milling Co., Inc., at al . v. N L.R.B., 341 U.S. 665. The parties, except the representatives of the Charging Party, seem to agree that Aetna Plywood and Milwaukee Plywood are "allies" for the purpose of this pro- ceeding and that the instituting by Local 743 of the strike and picketing at the premises of Milwaukee Plywood was a legal strike and a legal picket line, whether or not Local 743 had members among the employees of Milwaukee Plywood.4 As pointed out by the Respondent Union in its brief a distinction must be made between "inducing" employees of common carriers to respect a picket li ne at the premises of the struck employer and "inducing " the same employees to refuse to perform services at the premises of their own employer. The refusal to perform services at the premises of their own employer has been uniformly held to be unlaw- ful under Section 8(b)(4) of the Act.5 Inducement , however, toward refusal to cross the picket line at the premises of the struck employer by the striking union has been held to be primary picketing incidental to the primary strike and not a violation of Section 8(b)(4)(A).B The case of The Pure Oil Company, 84 NLRB 315, is basically in accord . There Standard Oil Company and The Pure Oil Com- pany had adjoining refineries. Pure had for several years by arrangement with Standard been furnished dock facilities owned by Standard . Different branches of a local of the Oil Workers Union represented the Standard employees and the Pure employees. A strike was called by the Standard group, against Standard and pickets were placed at the Standard refinery and dock. The Oil Workers Union requested the National Maritime Union by letter to respect the picket line at the dock and not to pick up Pure Oil products at the dock. The Board dismissed the complaint stating: Like the picketing of the dock , therefore, the union 's letters must be viewed as an integral part of its lawful right to take primary action in support of its demands on Standard Oil, and to publicize this action. The appeals contained in the letters, no less than the appeal inherent in the picketing of the dock, and in the signs posted adjacent to the picket line, thus amounted to nothing more than a request to respect a primary picket line at the employer's premises. This is traditionally primary strike action. Accordingly , we conclude that none of the union's actions herein were violative of Section 8(b) (4) (A). [Emphasis in original.] Likewise in Interborough News Company, 90 NLRB 2135 , the complaint was dis- missed by the Board. There a union was on strike against the Interborough News Company. Pickets were placed at newsstands operated by the company. Union 3 Douds v. Metropolitan Federation of Architects, etc., Local 231 (Project Engineering Company), 75 F. Supp. 672 (D C , N Y) ; N.L R.B. v. Business Machine, etc, Local 459, International Electrical etc., Workers, CIO (Royal Typewriter Co.), 228 F. 2d 553, (CA. 2). 4 This is the position taken by the General Counsel at oral argument and In his brief. It was the basis of the decision of the District Court in the injunction case arising out of the charges in this case. Madden v. Local 743, Warehouse & Mail Order Employees Union, IBT, et al. (Aetna Plywood & Veneer Company), 43 L R R M 2472 (D C., E. Wis.). Local 1976, United Brotherhood of Carpenters and Joiners, et al (Sand Door & Ply- wood Co.) v. NLRB., 357 U S. 93, 96, 98. 9 N.L R B. v. International Rice Milling Company, supra; Meier it Pohlmann Furniture Company v. Gibbons, 233 F. 2d 296 (C.A. 8), cert. denied, 352 U.S 879. CHAUFFEURS, TEAMSTERS, ETC., "GENERAL" LOCAL 200 655 representatives visited newspapers and publishers and requested the employees of such newspapers and publishers to respect the picket lines established at the news- stands and not to cross them. The Board in dismissing the complaint stated: We agree with the Trial Examiner's conclusion that because the Respondent's conduct in such inducement invited action only at the premises of the primary employer, whose employees were on strike, it was not violative of Section 8(b) (4) (A) of the Act, as alleged in the complaint. [Emphasis in original.] In support the Board cited The Pure Oil Company case above referred to. Under the principles indicated in the above-mentioned cases, it seems entirely clear that such inducement and encouragement as occurred in the instant situation, if it had been made by representatives of Local 743 in its strike and picket line at the Milwaukee Plywood would not have been an unfair labor parctice by Local 743. In this proceeding, however, the inducement and encouragement were made by representatives of Local 200, a sister local in Milwaukee of Local 743 of Chicago, which had its original labor dispute in Chicago with Aetna Plywood and extended it to Milwaukee to the premises of Aetna's wholly owned subsidiary. On this claimed distinction, that Local 200 is a "stranger" to the primary dispute between Local 743 and Milwaukee Plywood, the General Counsel and the Charging Party argue that the inducement and encouragement by Local 200 violate Section 8(b)(4)(A). This distinction is claimed to take the actions of Local 200 out of the exceptions made by the Board and the courts under the "ally" principle. In other words, the General Counsel contends that a sympathetic local cannot legally induce or encourage its members not to cross the picket line in a legal strike and picketing situation con- ducted by another union where the sympathetic local itself has no labor dispute with the employer. Put another way, his contention is that a labor organization is not permitted to assist another labor organization which is lawfully picketing an em- ployer by inducing and encouraging its own members not to cross the picket line. Except for the decision by Judge Tehan in the District Court dismissing the peti- tion for injunction in this case, I do not believe that the Board or the courts have squarely passed on this question. The Respondent Union cites the Meier & Pohl- mann case, supra, which was a civil action based on Section 303(a)(1) of the Act with provisions basically identical with Section 8(b)(4)(A). A dismissal by a trial court without a jury was affirmed by the Court of Appeals essentially on the theory that the plaintiff had failed to sustain the burden of proof of union action or con- certed refusal to pick up or deliver goods in a situation where the picket line was not illegal. I do not think this decision sheds light on the instant problem, neither do I think that the decision of the District Court dismissing the petition for injunction as against Local 200 helps us greatly, even though the evidence before that court is essentially the evidence before me. The court opinion relies mainly upon Interna- tional Rice Milling Company, supra, and does not discuss the distinction claimed by the General Counsel that Local 200 is a "stranger" union. Both the General Counsel and the Respondent Union rely on the case of Columbia- Southern Chemical Corporation, 110 NLRB 206, 209. In that case Columbia- Southern was engaged in substantially expanding its plant. One Westheimer had a contract to relocate a boiler on the premises. The Pipefitters Union demanded that Westheimer hire its members for that work. Instead, he used employees referred by a different union. The Pipefitters picketed at a common approach to the con- struction work. The Board held that the Pipefitters violated Section 8(b)(4)(A) by picketing at the common entrance but dismissed as to a Teamsters local and an Operating Engineers local, both of which were also made parties, on the theory it had not been proved that either the Teamsters or Operating Engineers were respon- sible for the decision of the members of those two unions not to cross the picket line. The General Counsel argues from the Board decision that the dismissal resulted from the facts in that case that the inducement by the Teamsters or Operating Engineers was limited to employees of the primary employer, Westheimer, and that by reason of language an inference arises that had the inducement been to employees of neutral or secondary employers the results would have been otherwise. The language involved is as follows: Any inducement by Teamsters or Operating Engineers limited to employees of Westheimer, the primary employer, to quit work did not violate Section 8(b)(4)(A). Columbia-Southern contends that the Board proscription in Sec- tion 8(b) (4) (A) against inducement by a union of employees to strike in order to force an employer to cease dealing with another was intended to outlaw such inducement even when confined as here, to employees of an employer (Westheimer) involved in a dispute over his labor policies However, such inducement, when so confined, has been characterized by the Board as primary ,656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action, which the Board has held was not intended by Congress to be reached by the foregoing proscription in Section 8(b) (4) (A). The opinion, however, had just before, stated that the Board agreed with the Trial Examiner that the evidence did not establish that either the Teamsters or Operating Engineers was responsible for the decision of the members of those unions to re- spect the picket line. It is thus apparent that there was no ruling in this respect on the issue involved in this case and it seems to me no inference can be drawn from its -discussion of the primary nature of appeals to the employees of the primary employer. The Respondent Union relies on language in the opinion answering a contention by the Company that the case was distinguishable from the Rice Milling case, supra, in that the Teamsters and the Operating Engineers had no dispute with Westheimer, .the primary employer. It is as follows: Columbia-Southern contends, however, that the action of Teamsters and Operating Engineers in inducing employees of the primary employer [West- heimerl in the instant case to leave their work is distinguishable from that of the union in the Rice Milling case, in that Teamsters and Operating Engineers Aid not, themselves, have any dispute with Westheimer, the only dispute being between Westheimer and Pipefitters. However, as we read the legislative history of the provisions of Section 8(b) (4) (A) here involved, Congress was not concerned to protect primary employers against pressures by disinterested unions, but rather to protect dis- interested employers against direct pressures by any union. The Court thereby gives another reason why the case as to the Teamsters and the Operating Engineers should be dismissed. This language relates to the relationship of the Unions to the primary employer as to inducement of his employees and does not touch the issue in this case. There is evidence in the record as referred to earlier that the president of Local 200 participated in picketing on at least one occasion. I can see no unlawful action ,either by said officer or the Local in assisting, whether paid or not, in the picketing by Local 743. Any request, express or implied, by such picket to drivers of neutral .carriers not to deliver or pick up is a traditional part and purpose of the picketing process and does not violate Section 8(b)(4)(A). It seems basic in principles of picketing that the union or group setting up a picket line may hire pickets or obtain pickets by requesting individuals to serve or by requesting other labor organizations to furnish persons to serve, whether or not .the pickets or the assisting union are connected with the subject matter of the dispute. I have been unable to find any such restrictions on the participation in or assistance to legal picketing at the premises of an employer. In view of the considerations above discussed it is my opinion and I conclude that the inducement and encouragement by officers of Local 200 to its members to re- spect the primary picket line at Milwaukee Plywood and not to deliver or pick up for their carrier employers at the picket line was not a violation of Section 8(b)(4)(A) of the Act and I shall recommend that the complaint herein be ,dismissed. CONCLUSIONS OF LAW 1. The Charging Party, Milwaukee Plywood Company, is engaged in commerce ,within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent Union has not engaged in the unfair labor practices alleged in the complaint as violating Section 8(b)(4)(A) of the Act. [Recommendations omitted from publication.] :Simmons Company and United Furniture Workers of America, Local 1010, AFL-CIO, Petitioner. Case No. 21-RC-6012. Feb- ruary 15, 1960 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Louis S. Eberhardt, hearing 126 NLRB No. 75.