General Teamsters', Etc., Local No. 890

GENERAL TEAMSTERS', ETC., LOCAL NO. 890 641 General Teamsters', Warehousemen and Helpers' Union, Local No. 890 and San Joaquin Valley Shippers' Labor Committee; Imperial Valley Shippers' Labor Committee ; Blythe Shippers' Labor Committee ; and Yuma Valley Shippers' Labor Com- mittee and David Castro and Andrew Torigian. Case No. 20- CE-6. June 15, 1962 DECISION AND ORDER Upon charges duly filed by David Castro and Andrew Torigian, individuals, the General Counsel of the National Labor Relations Board,by the Regional Director for the Twentieth Region, on Novem- ber 13, 1961, issued an amended complaint alleging that General Teamsters', Warehousemen and Helpers' Union, Local No. 890 (herein called Respondent Union) and San Joaquin Valley Shippers' Labor Committee, Imperial Valley Shippers' Labor Committee, Blythe Shippers' Labor Committee, and Yuma Valley Shippers' Labor Com- mittee (herein called Respondent Shippers' Committees) had engaged in and were engaging in unfair labor practices within the meaning of Section 8(e) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, amended complaint, and notice of hearing were duly served upon the Respondents and copies of the amended complaint and notice of hearing were duly served upon the Charging Parties. With respect to the unfair labor practices, the complaint alleges, in substance, that the Respondent Union and certain employer-members of the Respondent Shippers' Committees have entered into, and main- tained in effect, certain contract clauses, pursuant to which these mem- bers of the Respondent Shippers' Committees have agreed to cease and refrain, and have ceased and refrained, from using or otherwise dealing in the services of Castro, Torigian, and other independent truck operators in violation of Section 8(e). On January 5, 1962, all parties to this proceeding entered into a stipulation of facts, and on the same date jointly agreed to transfer this proceeding directly to the Board for findings of fact, conclusions of law, and Decision and Order. The stipulation states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of an Intermediate Report and Recommended Order, and provides that the charges, complaint, amended complaint, an- swers, amended answers, and stipulation of facts constitute the entire record in the case. On January 12,1962, the Board approved the stipu- lation, ordered the transfer of the proceeding to the Board, and granted permission to the parties to file briefs. Thereafter, the Gen- eral Counsel, the Respondent Shippers' Committees, and the Respond- ent Union filed briefs. 137 NLRB No. 75. 649856-63-vol. 137-42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the stipulation and briefs, and upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. COMMERCE The parties have stipulated that the Respondent Shippers' Com- mittees are agents for approximately 48 employers and are duly authorized on their behalf to negotiate and enter into the labor agree- ments with the collective bargaining representatives of their em- ployees. Said employers, among them Pappas and Company, Inc.; High and Mighty Farms, Inc.; S. Stamoules, Inc.; Farley Fruit Com- pany; Westside Growers and Shippers, Inc.; Suzy-Belle Farms; and Arkalian Farms, are engaged in San Joaquin Valley, Blythe County, and Imperial County, California, and in Yuma County, Arizona, as growers, packers, and shippers of agricultural products. Each of the growers, packers, and shippers so represented by these Respond- ent Shippers' Committees annually sells and ships products valued at more than $50,000 from its packing plant to points outside the State in which each of said plants is located. Accordingly, we find that San Joaquin Valley Shippers' Labor Committee, Imperial Valley Shippers' Labor Committee, Blythe Shippers' Labor Committee, and Yuma Valley Shippers' Labor Committee are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Teamsters', Warehousemen and Helpers' Union, Local No. 890, is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The facts, as stipulated, show that the Charging Parties, David Castro and Andrew Torigian, are independent contractors, separately engaged in hauling agricultural produce on a contract basis, and that each individually owns and operates trucks and also hires other indi- viduals as drivers. During the period of time material herein, the Charging Parties have had hauling contracts with Pappas and Com- pany, Inc. ; High and Mighty Farms, Inc. ; S. Stamoules, Inc. ; Farley Fruit Company; Westside Growers and Shippers, Inc.; Suzy-Belle Farms; Arkalian Farms; and other grower-shippers, all of whom are represented for collective bargaining by Respondent Shippers' Committees. On or about August 1, 1960, Respondent Union entered into a con- tract entitled "1960-61 Truck Drivers Agreement" with Respondent Shippers' Committee acting for and on behalf of some 48 grower- shippers, including the aforenamed grower-shippers. This contract GENERAL TEAMSTERS', ETC., LOCAL NO. 890 643 was effective August 1, 1960, for a term expiring July 15, 1962, and provided in relevant part that: ' 4 (a) If the Company contracts any hauling of produce between the field and the packing house or the field and the vacuum cooler, employees of such contractors shall be covered under the terms of this contract. (b) If the contractor does not comply with the terms of this agreement, the Union will notify the Company in writing of any provisions of the agreement violated. If contractor shall not come into compliance within 48 hours, the Company shall ter- minate the contract with contractor. In addition, Respondent Union and Respondent Shippers' Com- mittees, on or about July 12, 1960, entered into a "Supplementary Agreement" effective only for the San Joaquin Valley operations of any shipper party to the main agreement. This "Supplementary Agreement," to remain in force as long as the main agreement is operative, provided in pertinent part that : 2 (1) All independent truckdrivers hauling melons between the field and the packinghouse shall be in good standing with the Union. Shippers will, upon written request by the Union, ter- minate within 48 hours thereafter the contract of any independent trucker who ceases to be in good standing with the Union. The General Counsel and the Respondents agree that section 4(b) and the second sentence of section (1),3 supra, are within the proscrip- tion of Section 8(e) of the Act and that the Board may enter an ap- propriate order to remedy these specific clauses. We agree that these provisions are express "hot cargo" agreements that the employer sig- natories will cease doing business with other persons and are unlawful under Section 8(e) of the Act. The General Counsel contends, and the Respondent Union denies, that section 4(a) and the first sentence of section (1) also constitute agreements whereby an employer agrees to cease doing business with another person within the meaning of Section 8 (e) of the Act. In section 4(a) the employers have bound themselves to do business only with those contractors who agree that their employees shall be covered by the terms of the contract, and by section (1) the employers agree to hire only those independent truckdrivers who are members in good standing with the Respondent Union. As an agreement to do business only with those who meet either union membership or contract cover- 1 These relevant provisions are hereinafter referred to as section 4(a) and (b). 2 This provision is hereinafter referred to as section (1). 3Although it originally denied the illegality of the entire section ( 1), in its brief Respondent Union conceded that the second sentence thereof is also proscribed by Sec- tion 8(e) of the Act. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD age requirements, these clauses are an agreement, at least by implica- tion, not to do business with those who do not so qualify.' Accord- ingly, we find that section 4(a) and the first sentence of section (1) fall squarely within the proscription of Section 8(e) of the Act.' The parties stipulated that at all times material herein the Respond- ent Union and the above-named members of the Respondent Shippers' Committees have maintained the contract and supplement in effect, specifically including the provisions herein found to be unlawful under Section 8 (e). They further stipulated that from time to time during the relevant period the Respondent Union has taken steps to enforce those provisions. We construe this as a stipulation that the said parties to the contract have, in fact, enforced and given effect to these unlawful clauses, the Respondent Union by requesting adherence thereto and the employers by acquiescing in and complying with such demands.' For the reasons set forth in our decision in the McKinney case,' we are persuaded that any enforecment of or compliance with such invalid clauses constitutes an unfair labor practice proscribed by Section 8(e) of the Act. As the Respondents herein have enforced or given effect to sections 4 (a) and (b) of their contract and section (1) of the supplement, we find they have thereby "entered into" an il- legal agreement in violation of Section 8 (e) of the Act.' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. * D&n McKinney Co, 137 NLRB 649 ' Ibid. In this connection , we note that a bulletin dated August 4, 1961, sent by an employer association to "those shippers who are parties to the 1960-1961 Truck Drivers contract," which was incorporated into the stipulation as an exhibit , reveals that the shippers had been adhering to those provisions at least until that date. "Dan McKinney Co., 137 NLRB 649. 8 we have held on similar facts that parties violate Section 8 (e) of the Act by acknowl- edging and reaffirming the current effectiveness and application of a "hot cargo" con- tract. Automotive, Petroleum & Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters , etc. (Greater St Louis Automotive Trimmers and Upholsterers Association , Inc), 134 NLRB 1363; Los Angeles Mailers Union No. 9, I.T. U (Hillbro Newspaper Company, Division of Hearst Publishing Com- pany, Inc), 135 NLRB 1132. GENERAL TEAMSTERS', ETC., LOCAL NO. 890 645 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAw 1. General Teamsters', Warehousemen and Helpers' Union, Local No. 890, is a labor organization within the meaning of Section 2(5) of the Act. 2. San Joaquin Valley Shippers' Labor Committee, Imperial Valley Shippers' Labor Committee, Blythe Shippers' Labor Committee, and Yuma Valley Shippers' Labor Committee, and their members, are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By enforcing and maintaining in effect a contract between Re- spondent Union and Respondent Shippers' Committees whereby employer-members of these committees were obligated to cease and refrain, and did cease and refrain, from using or otherwise dealing in the services of David Castro, Andrew Torigian, and other independ- ent truck operators who are not parties to the agreements referred to above, or whose employees are not covered thereby, or who do not comply with the terms thereof, or who are not in good standing with Respondent Union, the Respondents named herein violated Section 8 (e) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, General Team- sters', Warehousemen and Helpers' Union, Local No. 890, San Joaquin Valley Shippers' Labor Committee, Imperial Valley Shippers' Labor Committee, Blythe Shippers' Labor Committee, and Yuma Valley Shippers' Labor Committee, and their officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from : (a) Enforcing, maintaining in effect, and giving effect to the con- tracts entered into by these parties on or about August 1, 1960, and on or about July 12, 1960, insofar as said contracts provide that : If the Company contracts any hauling of produce between the field and the packinghouse or the field and the vacuum cooler, em- ployees of such contractors shall be covered under the terms of this contract. If the contractor does not comply with the terms of this agree- ment, the Union will notify the Company in writing of any pro- 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visions of the agreement violated. If contractor shall not come into compliance within 48 hours, the Company shall terminate the contract with contractor. All independent truckdrivers hauling melons between the field and the packinghouse shall be in good standing with the Union. Shippers will, upon written request by the Union, terminate within 48 hours thereafter the contract of any independent trucker who ceases to be in good standing with the Union. (b) Entering into, actively maintaining, giving effect to, or en- forcing any other contract or agreement, express or implied, whereby Respondent Shippers' Committees or any of their employer-members cease or refrain, or agree to cease or refrain, from doing business with David Castro, Andrew Torigian, or any other indepedent truck op- erator. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Respondent Shippers' Committees shall : (1) Notify in writing their respective employer-members that those contracts between General Teamsters', Warehousemen and Helpers' Union, Local No. 890 and Respondent Committees entered into on or about August 1, 1960, and on or about July 12, 1960, are no longer in effect insofar as they require that said employer-members cease or refrain, or agree to cease or refrain, from doing business with any independent truck operator. (2) Post in conspicuous places at their offices where notices to em- ployees are customarily posted, copies of the notice attached hereto marked "Appendix A." 9 (3) Furnish to the Regional Director for the Twentieth Region signed copies of the aforementioned notice for posting by their em- ployer-members, if such employer-members agree, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by Re- spondents, as indicated, be forthwith returned to the Regional Direc- tor for disposition by him. (b) Respondent General Teamsters', Warehousemen and Helpers' Union, Local No. 890, shall : (1) Post at its offices, places of business, and meeting places in the States of California and Arizona, copies of the notice attached hereto marked "Appendix B.710 Copies of said notice, to be furnished by the Regional Director of the Twentieth Region, shall, after having been duly signed by Respondent Union's authorized representatives, be 9In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 10 See footnote 9, supra. GENERAL TEAMSTERS', ETC., LOCAL NO. 890 647 posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where Respondent Union's notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by other material. (2) Furnish to the Regional Director of the Twentieth Region signed copies of the aforementioned notice for posting by the em- ployer-members of the Respondent Shippers' Committees, if such em- ployee-members agree, in places where notices to employees are cus- tomarily posted. Copies of said notice, to be furnished by the Regional Director, shall, after being signed by Respondents, as indicated, be forthwith returned to the Regional Director for disposition by him. (c) Respondents shall notify the Regional Director for the Twen- tieth Region, in writing, within 10 days from the date of this Order, what steps they have taken to comply herewith. MEMBERS FANNING and BROWN took no part in the consideration of the above Decision and Order. APPENDIX A 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 give notice that : WE WILL NOT enter into, actively maintain, give effect to, or en- force any contract or agreement, express or implied, with General Teamsters', Warehousemen and Helpers' Union, Local No. 890, whereby we cease or refrain, or agree to cease or refrain, from using the services of any other employer, or from doing business with any other person. WE WILL NOT enforce or maintain in effect our contracts entered into with General Teamsters', Warehousemen and Helpers' Union, Local No. 890, on or about August 1, 1960, or on or about July 12, 1960, insofar as said contracts provide that : If the Company contracts any hauling of produce between the field and the packinghouse or the field and the vacuum cooler, employees of such contractors shall be covered under the terms of this contract. If the contractor does not comply with the terms of this agreement, the Union will notify the Company in writing of any provisions of the agreement violated. If contractor shall 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not come into compliance within 48 hours, the Company shall terminate the contract with contractor. All independent truckdrivers hauling melons between the field and the packinghouse shall be in good standing with the Union. Shippers will, upon written request by the Union, terminate within 48 hours thereafter the contract of any in- dependent trucker who ceases to be in good standing with the Union. SAN JOAQUIN VALLEY SHIPPERS' LL.3oR COMMITTEE; IMPERIAL VALLEY SHIPPERS' LABOR COMMITTEE; BLYTHE SHIPPERS' LABOR COMMITTEE; YUMA VAL- LEY SHIPPERS' LABOR COMMITTEE, Employers. 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. Employees may communicate directly with the Board's Regional Office, 703 Market Building, 830 Market Street, San Francisco 2, California, Telephone Number, Yukon 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its pro- visions. APPENDIX B NOTICE TO ALL MEMBERS AND TO ALL EMPLOYEES OF EMPLOYER- MEMBERS OF SAN JOAQUIN VALLEY SHIPPERS' LABOR COMMITTEE, IMPERIAL VALLEY SHIPPERS' LABOR COMMITTEE, BLYTHE SHIPPERS' LABOR COMMITTEE, AND YUMA VALLEY SHIPPERS' LABOR COMMITTEE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that : WE WILL NOT enter into, actively maintain, give effect to, or enforce any contract or agreement, express or implied, with San Joaquin Valley Shippers' Labor Committee, Imperial Valley Shippers' Labor Committee, Blythe Shippers' Labor Committee, or Yuma Valley Shippers' Labor Committee, or any employer- member of any of these organizations whereby such Shippers' Committee, or any employer-member thereof, ceases or refrains, or agrees to cease or refrain, from using the services of any other employer, or from doing business with any other person. WE WILL NOT enforce or maintain in effect the contracts entered into by the aforenained Shippers' Committees or their employer- members and the undersigned Union on or about August 1, 1960, DAN McKINNEY CO. 649 or on or about July 12, 1960, insofar as said contracts provide that : If the Company contracts any hauling of produce between the field and the packinghouse or the field and the vacuum cooler, employees of such contractors shall be covered under the terms of this contract. If the contractor does not comply with the terms of this agreement, the Union will notify the Company in writing of any provisions of the ageement violated. If contractor shall not come into compliance within 48 hours, the Company shall terminate the contract with contractor. All independent truckdrivers hauling melons between the field and the packinghouse shall be in good standing with the Union. Shippers will, upon written request by the Union, terminate within 48 hours thereafter the contract of any in- dependent trucker who ceases to be in good standing with the Union. GENERAL TEAMSTERS', WAREHOUSEMEN AND HELPERS' UNION, LOCAL No. 890, Labor Organization. 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. Employees may communicate directly with the Board's Regional Office, 703 Market Building, 830 Market Street, San Francisco 2, California, Telephone Number, Yukon 6-3500, Extension 3191, if they have any question concerning this notice or compliance with its provision. Dan McKinney Co. and Leo S. Angel and California Beer Whole- salers' Association, Inc.; California Brewers Association; Teamster Brewery and Soft Drink Workers Joint Board of California ; and Beer Drivers Local Union 683, Parties to the Contract. Case No. 21-CE-18. June 15, 1962 DECISION AND ORDER On September 27, 1961, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that Dan McKinney Co., the Respondent herein, had not engaged in unfair labor practices in violation of Section 8(e) of the Act and recom- mending that the complaint be dismissed, as set forth in the attached Intermediate Report. Thereafter, the General Counsel, California 137 NLRB No. 74.