Local 294, International Brotherhood Of Teamsters, Chauffeurs, Warehousemen, And Helpers Of America, Afl, And Peter J. Post-ma And Western Express Company, Inc., 340 (1950)

In the Matter of LocAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,

AFL, AND PETER J. POST-MA and WESTERN EXPRESS COMPANY, INC.

Case No. 2-CC-119.-Decided September.0, 1950 DECISION AND ORDER On February 20, 1950, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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 copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and Western filed exceptions to the Intermediate Report and supporting briefs.

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings and conclusions of the Trial Examiner only insofar as they are consistent herewith.1 1. The Trial Examiner found that the Respondents induced and encouraged Branford's employees to refrain from handling the Western trailer. However, he further found that Section 8 (b) (4) (A) of the Act was not violated, because the inducement was temporary and its object was to give the Respondents an opportunity to learn from Branford whether the continued use of the trailer violated Section 23A of the Union's contract with Branford.2 We do not agree.

As the Trial Examiner found, Branford's use of the trailer did not violate section 23A. Although the Respondents may have thought otherwise and although one object of the inducement may have been to permit the Respondents to determine the applicability of section 23A, 1 The General Counsel's request for oral argument is denied, as the record, exceptions, and briefs, in our opinion, adequately present the issues and the positions of the parties.

2 As is fully set forth in the Intermediate Report, section 23A reserved to the Union the right to refuse to accept freight from or make deliveries to struck establishments.

The contract is silent as to freight which is not itself 'hot' within this definition, but which is in trailers lent by other struck carriers, such as Western.

91 NLRB No. 45.

340 another object necessarily was to force Branford to cease doing business with Western until the determination of the applicability of the contract was made, and the Trial Examiner so found. We find nothing in the Act itself or in its legislative history which would permit the establishment of even a temporary secondary boycott where, as here, there is no applicable contractual provision. Accordingly, contrary to the Trial Examiner, we find that the Respondents' inducement violated Section 8 (b) (4) (A).

As an additional reason for concluding that the Union did not violatO Section 8 (b) (4) (A) of the Act, the Trial Examiner found that the record did not establish that Branford's employees were encouraged to refuse to perform any services on the Western trailer 'in the course of their employment.' We cannot agree. The record affirmatively shows that, because Western employees were then on strike, Branford planned to depart from its ordinary practice in the case of a full or straight load such as was here involved, and to direct its employees to unload the trailer. In fact, Branford had already arranged with a third carrier to pick up the load and transship it to Syracuse in the trailer of that third carrier. Uncontradicted testimony shows, and the Trial Examiner found, that Branford's employees were called upon to unload trailers from time to time as part of their job. The fact that they had not yet been ordered to unload the particular Western trailer here involved does not furnish the Union a defense for inducing and encouraging them to refuse to unload the trailer when and if called upon to do so. Indeed, the record discloses that the employees knew that Branford wanted them to unload the trailer, but they nevertheless failed to do so.

In view of our finding that the Respondents violated 8 (b) (4) (A), we find it unnecessary to pass on the Trial Examiner's refusal to adjourn the hearing in order to take the testimony of Dominick Dastoli.

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 Respondent Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL, and its agents, including Peter J. Postma, shall:

1. Cease and desist from inducing or encouraging the employees of North Branford Transportation Company, or any other employer, to engage in a strike or concerted refusal in the course of their employl Cf. Conway's Express, 87 NLRB 972.

   ment 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 to force or require any employer or other person to cease doing business with Western Express Company, Inc.

2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act.

   (a) Post at its Albany, New York, business office copies of the notice attached hereto and marked Appendix A.4 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by a representative of the Respondent, be posted by said Respondent immediately upon receipt thereof and maintained for a period of sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by said Respondent to insure that the notices are not altered, defaced, or covered by any other material;

   (b) Notify the Regional Director for the Second Region in writing, within ten (10) days after the date of this Order, what steps the Respondent has taken to comply herewith.

   MEMBER MURDOCK took no part in the consideration of the above Decision and Order.

   APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, AFL 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, we hereby notify our members that:

   WE WILL NOT induce or encourage the employees of North Branford Transportation Company or any other 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, 4 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words 'Decision and Order' the words 'Decree of the United States Court of Appeals Enforcing.'

   or to perform any services, where an object thereof is to force or require any employer or other person to cease doing business with T;ESTERN EXPRESS COMPANY, INC.

   LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

   CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,

   AFL.

   By--------------------(Title of Officer) Dated ----This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.

   INTERMEDIATE REPORT AND RECOMMENDED ORDER Mr. Warren H. Leland, for the General Counsel.

   Mr. Harry Pozefsky, of Gloversville, N. Y., for the Respondents.

   Mr. Charles D. Johnson, of Baker, Hostetler & Patterson, of Cleveland, Ohio, for Western.

   STATEMENT OF THE CASE Upon a charge filed on October 13, 1949, by Western Express Company, Inc., (herein called Western), the General Counsel of the National Labor Relations Board,' by the Regional Director for the Second Region (New York, New York), issued a complaint on December 6, 1949, against the Respondents, Local 294,

   International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL (herein sometimes called the Union), and Peter J. Postma.

   The complaint alleged that the Respondents had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Section 8 (b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (herein called the Act).2 Copies of the complaint, the charge, a notice of hearing, and a notice of change of time of hearing, were duly served upon the Respondents and Western.

   With respect to unfair labor practices, the complaint alleged that, since on or about September 15, 1949, the Union and Postma as the Union's vicepresident and business agent, in violation of Section 8 (b) (4) (A) of the Act, have induced and encouraged and are inducing and encouraging the employees of North Branford Transportation Company (herein called Branford) 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 service, an object thereof being to force or require Branford to cease doing business with Western, by ordering, directing, and instructing its members to engage in concerted activities in its behalf, in furtherance of said object.

   In their answer to the complaint, the Union and Postma admitted some of the allegations of the complaint, but denied that either of them had committed 1 The General Counsel and the staff attorney appearing for him at the hearing are herein referred to as the General Counsel, and the National Labor Relations Board as the Board.

   2 61 Stat. 136.

   unfair labor practices. The Union and Postma also asserted in their answer the following five 'separate and distinct defenses' (1) That the acts attributed to them by the complaint...