Truck Drivers Local No. 696, IBTCWH

TRUCK DRIVERS LOCAL NO. 696, IBTCWH 23 Truck Drivers Local No . 696, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Freeto Construction Co., Inc., Charg- ing Party and Topeka Sand , Gravel & Concrete Producers Association ; Hankamer Ready Mix Concrete Co., Inc.; Victory Sand and Stone Company ; River Sand Company; The Con- sumers Sand Company ; and Kansas Sand Company, Parties to the Contract. Cm,?e No. 17-CE-4. October 200, 1964 DECISION AND ORDER On March 11, 1964, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Re- spondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations.' [The Board dismissed the complaint.] I The Board's decisions in Truck Drivers & Helpers Local Union No. 728, International Brotherhood of Teamsters , et at. ( Brown Transport Corp. ), 140 NLRB 1436, and Truck Drivers Union Local No. 413, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , et at. ( The Patton Warehouse, Inc.), 140 NLRB 1474, upon which the Trial Examiner relied in holding the picket line clause here illegal, were subsequently not fully affirmed on review by the Court of Appeals for the District of Columbia ( Truck Drivers Locals 418 and 728 , Teamsters v. N.L.R.B., 334 F. 2d 539). That court agreed, however, that a broad picket line clause is violative of Section 8(e) to the extent that it applies to secondary picket lines. The Trial Examiner has explicitly pointed out the possible application of the instant clause to such secondary situations by his citation of the Board's later decision in Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 386, International Brotherhood of Teamsters , etc.; Valley Em- ployers Assn.; et al. ( California Association of Employers ), 145 NLRB 1475 . Hence, even under the rule of the court of appeals' decision , the instant clause would be illegal insofar as it applies to secondary activity. To that extent at least, we find no reason to disturb the Trial Examiner's ultimate finding that the clause here was illegal. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE In this proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. Sections 151-168 ), the complaint ' alleges that Respondent and Topeka Sand, Gravel & Concrete Producers Association (herein called the As- sociation ), consisting of employers engaged in commerce , entered into and maintained a contract between them which violated Section 8 (e) of the Act. 1 Issued December 23, 1963, on a charge against the Respondent filed December 10, 1963. 149 NLRB No. 3. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's answer admitted the basic facts alleged in the complaint 2 but denied that such facts constituted violation of any section of the Act. A hearing on the issue so presented was held on January 14, 1964, at Topeka, Kansas, before Trial Examiner Sidney D. Goldberg, at which all parties were rep- resented by counsel and afforded an opportunity to introduce evidence, cross-examine witnesses, and argue the facts and applicable law. Briefs were filed by the General Counsel and by counsel for Respondent. For the reasons set forth in detail below, I find that, while the contract clause involved herein contravenes Section 8(e) of the Act, Respondent has not engaged in activities constituting an unfair labor practice within the meaning of that section. Upon the basis of the entire record in the case, I make the following: FINDINGS OF FACT 1. THE EMPLOYERS INVOLVED The Charging Patty (herein called Freeto) is engaged in construction work and annually receives, from outside the State of Kansas, goods and materials valued in excess of $50,000. The project involved in this case is a bridge being constructed in connection with Interstate Highway 70, a part of the Federal highway system. The Association consists of and bargains for certain employers engaged in supplying materials for building and construction work. It is admitted that each of these employers, including Hankamer Ready Mix Concrete Co., Inc. (herein called Hank- amer), annually receives, from outside the State of Kansas, goods and materials valued in excess of $50,000. I find that the Association, Freeto, and Hankamer are employers engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION Respondent is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts The material facts are not disputed. Freeto, as stated, is engaged in constructing a bridge over the new Interstate Highway 70, near Topeka. When the job began on September 18, 1963,3 it had at the site six employees under Job Superintendent Willson. On either that day or the following day, Roy Gooden, an agent for the "Hoisting Engineers," 4 and James Glenn, conceded to be an agent of Respondent, visited the site and told Willson that their unions wanted contracts covering Freeto employees before work could begin. Willson answered that he could do nothing for them but he called Freeto's company superintendent, William Noble, who came down and talked with them. On October 14 a picket line was established by the Engineers and some of Freeto's employees refused to cross it. Concrete for the work was purchased by Freeto, in ready-mixed form, from Hankamer. Prior to the establishment of the picket line, the Hankamer drivers operated their trucks to the place designated by Freeto and poured the concrete where it was needed. After the picket line was established, Hankamer continued to supply Freeto with concrete but Hankamer employees drove the mixer-trucks only as far as the entrance to the project-about a quarter of a mile from the actual construction-and parked them. Freeto's employees then drove the trucks to the contruction site, dumped the concrete where needed, and returned the trucks to the Hankamer drivers at the gate. Hankamer testified that this method of operation was adopted after he had conferred with his counsel and had been advised that such conduct was required by his contract with Respondent. 2 Denials of knowledge or information concerning allegations of commerce were with- drawn at the hearing and such allegations are, therefore , deemed admitted (Board Rules and Regulations , Series 8, as amended , Section 102 20; Chauffeurs, Teamsters and Helpers Local Union 316, International Brotherhood of Teamsters, etc. (The Bedford- Nugent Corp .), 137 NLRB 573.) 3 AlI dates , unless otherwise specified , are 1963. A Local No. 101 , Hoisting and Portable Engineers , affiliated with International Union of Operating Engineers , APr CIO. The word "holster" on page 12, line 12, of the transcript, is hereby amended to "agent." TRUCK DRIVERS LOCAL NO. 696, IBTCWH 25 The picket line was removed, for reasons which do not appear in the record, "some time" before January 7, 1964.6 B: Respondent's contract The current contract between the Association and Respondent was entered into June 5, 1962, effective April 1, 1962, to March 31, 1965, and thereafter, unless amended or terminated, from year to year. It bears the approval signatures of each of the Association's members, including Hankamer. The contract which preceded it was signed May 28, 1959, effective April 1, 1959, to March 31, 1962. Both contracts include the following provisions: ARTICLE V-Working Conditions- . . . 5. Any provision in this Agree- ment that conflicts with any federal or state law, executive order, or regulation now in existence or which is enacted during the term hereof, shall not be in effect during the effective period of such law, executive order, or regulation. * * * * * ARTICLE X-Strikes and Lockouts-The Union agrees that there shall be no strikes, work stoppages, slow down or picketing during the term of this Agree- ment, and the Employer agrees that there shall be no lockouts. It is understood that it shall not be a violation of this Agreement for a driver to refuse to cross an authorized picket line. C. Contentions of the parties The General Counsel contends that article X of the current contract contravenes Section 8(e) of the Act. Respondent contends that article X does not contravene Section 8(e); that if it does, it is suspended by article V, and that, in any event, it cannot constitute an unfair labor practice because, having been entered into more than 6 months prior to the filing of the charge herein, and no steps to enforce it having been taken by Respondent to enforce it within that period, no finding of unfair labor practices can be predicated thereon. D. Discussion and conclusions 1. The contract provision Section 8 (e) of the Act provides that: It shall be an unfair labor practice . to enter into any contract or agreement, express or implied, whereby . . . [an] employer . agrees to cease . doing business with any other person, and any [such] contract . . . shall be to such extent unenforceable and void . . . . Since it was clear that it was the intent of the Congress, in enacting Section 8(e), to close the "loopholes" in the 8(b) (4) provisions of the Taft-Hartley Act (61 Stat. 136), the Board held, in Amalgamated Lithographers of America (Ind.) and Local No. 17, etc. (The Employing Lithographers, etc.), 130 NLRB 985, that clauses cast in the form of "employee protection" were implied agreements to cease doing business and violated Section 8(e). Soon thereafter, typical "protection of rights" clauses in Teamster contracts were held by the Board similarly violative of Sec- tion 8(e) .6 In Truck Drivers Union Local No. 413, etc. (The Patton Warehouse, Inc.) 140 NLRB 1474, and Truck Drivers & Helpers Local Union No. 728 (Btiown Transport Corp.), 140 NLRB 1436, the Board, having considered several forms of "protec- tion of rights" clause including a picket-line clause similar to that involved herein, held that such clauses are violative of Section 8(e) unless limited "(a) to protected activities engaged in by employees against their own employer and (b) to activities against another employer who has been struck by his own employees, where the strike has been ratified or approved by their representative whom the employer is required to recognize under the Act." 'l The Board's recent decision in Local 559, International Brotherhood of Team- sters, etc. (Anapolsky & Son, Inc.), 145 NLRB 722, held violative of Section 8(e) a picket-line clause in the following terms: "It shall not constitute a breach of this 5On that date an injunctive order was issued by the U.S. district court. 9 Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Van Transport Lines), 131 NLRB 242 ; Mary Feifer, d/b/a American Feed Company, 133 NLRB 214. 7 140 NLRB 1474, 1481. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement for any employee or union member covered herein to refuse to cross the picket line." Comparison of this provision with the final sentence in article X of the contract herein discloses that these sections are, except for the word "au- thorized" in Respondent's contract, substantially the same. Apparently mindful of the Board's Anapolsky decision, Respondent here argues, inter alia, that the addi- tion of this word "authorized " brings its contract clause within the area of permis- sibility described by the Board in the Patton case. This argument must fail: in Patton the Board set forth specific factual situations wherein refusals to perform services would be justifiable under either Section 8 (b)(4) or other sections of the Act. Respondent's phrase "an authorized picket line" is by no means the equiv- alent of the Board's carefully limited picket line protections that may lawfully be embodied in a bargaining contract. The difficulty with phrases, such as this one, which include participial adjectives , is that they raise more questions than they answer. Here, obviously, the use of the word "authorized" instantly and inevitably suggest the queries "authorized by whom?" "where?" "under what circumstances?" These are some of the questions which the Board answered in its exhaustive Patton and Brown decisions and Respondent's picket line clause obviously falls far short of the Board's requirements. In Teamsters, Chauffeurs, Warehousemen and Helpers Union Local No. 386, International Brotherhood of Teamsters, etc.; Valley Employers Assn., et al. (Cali- fornia Association of Employers), 145 NLRB 1475, the Board had before it a con- tract clause more specific in its terms than ,the one herein involved. The provision in pertinent part read as follows: No employee covered by this agreement shall be subject to disciplinary action by the Employer for refusing to cross a picket line established and approved by the Union The Union agrees that it will not approve a picket line unless such has been duly sanctioned by the International Brotherhood of Teamsters, Joint Council No. 38, or the Western Conference of Teamsters. The Trial Examiner pointed out that this language, although it could be interpreted as applicable to a primary picket line, could equally apply to one established at the premises of a secondary employer and, therefore, it violated Section 8(e) of the Act. The Board adopted this conclusion.8 For the foregoing reasons, I conclude that article X of Respondent's contract with the Association constitutes an agreement "to cease doing business" with other persons and that it contravenes Section 8(e) of the Act .9 9 To the same effect are the following: Joint Council of Teamsters No. 38, et at., Arden Farms Co , et al. (California Association of Employers), 141 NLRB 341, holding violative of Section 8(e) several clauses in the contract including one reading: ARprer.m 34 Protection of Rights-Section 1. It shall not be a violation of this agreement and it shall not be cause for discharge or disciplinary action for any em- ployee to refuse to handle the products of or serve any individual, firm or corpora- tion while such Individual, firm or corporation is under lockout or is under a strike recognized by a Labor Council of Teamsters No. 38, by Local Union No. 381 or by Joint Council of Teamsters No. 38 Southern California District Council of Hod Carriers and Laborers and Gunite Workers Local No. 345 et al. (Golding (( Jones, Inc.), 144 NLRB 978, in which the contract pro- vision protecting work stoppages where jobs are "declared unfair by a Central Labor Council or by a Building and Construction Trades Council, and the work thereon is stopped for that reason" was held violative of Section 8(e). See also: Los Angeles Mailers Union No. 9, I.T.U. (Hillbro Newspaper Printing Com- pany, Division of Hearst Publishing Company ), 135 NLRB 1132, enfd. 311 F. 2d 121 (C.A.D.C.), In which the Board held violative of Section 5(e) a contract provision which obligated the employer not to require employees to process work from shops in which an "authorized" strike was in progress 9 Respondent's brief is in error in stating that the Board's decision in Dan McKinney Co., 137 NLRB 649, approves the wording of a contract which gives protection to em- ployees who refuse to cross a "duly sanctioned picket line " At page 651, footnote 5, the Board specifically points out that the complaint did not allege that this provision was unlawful and that its validity was not In issue in the proceeding. No specific exception was taken, however, to the Trial Examiner's consideration of the provision or his con- clusion that it was not violative of the Act The Board, therefore, adopted this finding pro forma, but such adoption does not signify approval . (Hubbell v. General Electric Co., 267 F. 2d 564, 568 (CA. 2, 1920).) TRUCK DRIVERS LOCAL NO. 696, IBTCWH 27 2. The acts of Respondent Section 8 (e) provides that it shall be an unfair labor practice "to enter into" any contract or agreement having characteristics proscribed by that section. The Board, however, has held-and the courts have agreed-that proper interpretation of the congressional intent requires that, in addition to its formal execution, the taking of any steps to enforce such agreement should be regarded as an "entering into" thereof which violates the section .10 To constitute an unfair labor practice in violation of Section 8(e), however, the conduct which constitutes the "entering into" of the contract, whether in the form of its original execution or its revitalization by means of an effort to enforce it, must have occurred-as must any conduct alleged to constitute an unfair labor practice-within 6 months prior to the filing of the charge or be barred by Sec- tion 10(b) of the Act. The contract involved in this proceeding was executed by the parties on June 5, 1962, and the charge herein was filed December 10, 1963. The steps taken by Hankamer, pursuant to the contract, occurred in October 1963, well within 6 months prior to the filing of the charge. The charge, however, was filed against the Team- sters and the complaint issued upon that charge names the Teamsters as Respondent, alleging that: "Since June 5, 1962, and particularly since October 15, 1963, and thereafter, the Respondent has reaffirmed, maintained, and/or given effect to, the contract provision quoted above' in subparagraph (a) hereof, and has continued and is continuing to do so," and that Respondent thereby engaged in unfair labor practices within the meaning of Section 8(e) of the Act. It becomes necessary, therefore, to search the record for evidence that the Re- spondent, during the 6 months prior to December 10, 1963, took any action which can be construed, under the standards of the Board, as "entering into"-the contract. Only two witnesses testified in this proceeding: Lloyd Willson, the job superintend- ent of Freeto, and A. J. Hankamer, president of Hankamer Ready-Mix Concrete Co. In addition, evidence from Hankamer's superintendent, Leslie Orr, was taken from his pretrial affidavit plus five stipulated questions and answers. Willson testified to a joint visit to the project, in September 1963, by representa- tives of Respondent and the Engineers, who both demanded contracts covering Freeto's employees. He also testified that, on or about October 18, the Engineers set up a picket line at the jobsite and that some of Freeto's employees refused to cross it. He testified that ready-mix concrete was purchased for the job from Hankamer; that it was the practice, prior to-the picketing, for Hankamer's em- ployees to drive their trucks to the place where the concrete was needed and to dump it; that after the picketing began, Hankamer's employees drove their trucks to the gate and dismounted; and that Freeto's men then drove the trucks to the actual construction site about a quarter of a mile away, dumped the concrete where needed, and returned the trucks to Hankamer's employees at the gate. Hankamer, after testifying to his participation in the negotiation of the contract between Respondent and the Association, and signing it on behalf of his Company, stated that he had learned, through his superintendent, Orr, that the Freeto job was being picketed. He also testified that he then had a discussion, in his attorney's office, with Superintendent Noble of Freeto and that he thereafter-continued to supply Freeto with ready-mix concrete but instructed his superintendent to deliver the trucks to the gate and permit Freeto's employees to take them from there. Hankamer stated that he had made this arrangement because "the contract stated that they didn't have to take it in and I didn't ask them to." He also stated that if he sent a truck to a place where he could "have any trouble" and the mixer was tied up for 45 minutes with a 45-minute mix in it, he could " lose the mixer and all." Hankamer also testified that during the summer of 1963 another construction site in Topeka had been picketed by the Laborers' Union and that he did not send his-drivers there because "they wouldn't cross the picket, lines, so there was no use in sending them out"; that he made an arrangement to furnish concrete to that job by permitting a contractor to pick up "batched" concrete at his plant but stopped after 1 day because Superintendent Orr told him that if he continued the practice the plant would be picketed. m District No. 9, International Association of Machinists, AFL-CIO ( Greater St. Louis Automotive Trimmers and Upholsterers Association , Inc.), 134 NLRB 1354 , enfd. 315 F. 2d 33 (C A D C ) ; Automotive, Petroleum & Allied Industries Employees Union, Local 618, affiliated with International Brotherhood of Teamsters, etc (Greater St Louis Auto- motive Trimmers and Upholsterers Association, Inc ), 134 NLRB 1363; Los Angeles Mailers Union No. 9, I.T.U. ( Hillbro Newspaper Printing Company, et al 135 NLRB 1132, enfd. 311 F. 2d 121 (C.A.D.C.) ; Dan McKinney Co., 137 NLRB 649 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In making his decision not to ask his drivers to cross the picket line, Hankamer testified that he talked with his attorney who told him that "that was the way it [the contract] was drawn up and for me to live by it." He also specifically testified that he did not at any time call the Union to ask them what the clause meant, and that no representative of the Teamsters came to him regarding action to be taken concern- ing the Freeto job. Orr, in his pretrial affidavit, discloses only that, when Hankamer instructed him to send two trucks out to the Freeto project, have them driven to "within a reasonable distance of the jobsite and then to get out of the trucks," he gave the drivers orders accordingly and "told the job steward for Local 696 just what the Company was going to do. . He made no protest." The five questions and stipulated answers to them show that Orr was not informed, by any representative of Respondent, that Hankamer's drivers would refuse to cross any picket line, nor was he advised, by any such representative, that special arrangements should be made for delivery of concrete to Freeto. They also show that the concrete was delivered to Freeto at a designated point away from the construction site and that Hankamer did not refuse to do business with Freeto. In answer to the question whether any Hankamer drivers refused to cross the picket line, Orr's answer was that none were asked to do so. No other testimony was offered by either the General Counsel or the Charging Party." After carefully considering each of the foregoing items, I am unable to find any of them sufficient to justify a finding that Respondent took any steps with reference to the contract, during the 6-month period prior to the filing of the charge herein, that could constitute an "entering into" it within the Board's standards. On this point the General Counsel, in his brief, states that "an agent of the Respondent both as- sented to, and acquiesced in Hankamer's implementation of the picket line clause." This conclusion is based upon Orr's statement that, after giving the drivers instructions not to cross the picket line at Freeto, he told the Respondent's steward "what the Company was going to do" and that the steward "made no protest." I cannot find that the steward's failure to protest, in these circumstances, was suffi- cient activity by Respondent with respect to the contract to constitute. under the Board's standards, an "entering into" it within 6 months prior to the filing of the charge herein. Accordingly, although I have no doubt that article X of the contract between Respondent and the Association embodies a provision proscribed by Section 8(e) of the Act, the contract was entered into more than 6 months before the charge was filed and there is no substantial evidence that Respondent herein "lived up to" the clause within that 6-month period. It follows, therefore, that the complaint herein must be dismissed.12 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Truck Drivers Local No. 696, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. Freeto Construction Co., Inc., Hankamer Ready-Mix Concrete Co, Inc., Toneka Sand, Gravel & Concrete Producers Association, and its members are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Truck Drivers Local No. 696, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint herein be dismissed. "At one point the General Counsel stated that the evidence would "reveal [that] a business agent for the Teamsters told Mr. Hankamer that the Teamsters would picket him if he continued to batch trucks for the Dyle Construction Company " The complaint, however, is based upon activities involving Freeto; there was no actual proffer of any such evidence and the General Counsel's statement made no reference to the contract clause involved in this proceeding. As stated above, while Hankamer testified that It was through Superintendent Orr that he had been warned of picketing if he continued to sell concrete to Pyle at the plant, Orr makes no mention of the incident 12 Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, etc (Pure Milk Association; at at ), 141 NLRB 1237; Retail Clerks Union Local 770; at at. (The Frito Company), 138 NLRB 244, 248. Cf. Dan McKinney Co., 137 NLRB 649; Local 585 of the Brotherhood of Painters, Decorators t Paper Hangers of America, AFL-CIO, at at. (Falstaff Brewing Corp ), 144 NLRB 100.