247 F.2d 71 (D.C. Cir. 1957), 13394, General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local No. 886, AFL-CIO v. N. L. R. B.
|Docket Nº:||13394, 13406.|
|Citation:||247 F.2d 71|
|Party Name:||GENERAL DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS UNION, LOCAL NO. 886, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. LOCAL 850, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.|
|Case Date:||May 09, 1957|
|Court:||United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit|
Argued Jan. 11, 1957.
Mr. Herbert S. Thatcher, Washington, D.C., for petitioner Gen. Drivers, Chauffeurs, Warehousemen and Helpers Union, Local No. 886.
Mr. Louis P. Poulton, Pasadena, Md., of the bar of the Supreme Court of Maryland, pro hac vice, by special leave of Court, with whom Mr. Plato E. Papps, Washington, D.C., was on the brief, for petitioner Internat. Assn. of Machinists, Local No. 850.
Mr. Norton J. Come, Atty., N.L.R.B., with whom Mr. Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., was on the brief, for respondent.
Before PRETTYMAN, WASHINGTON and BASTIAN, Circuit Judges.
BASTIAN, Circuit Judge.
These cases involve the issue as to whether or not the so-called 'hot cargo' clause 1 in a labor contract, wherein an employer agrees that his employees shall not be required to handle struck goods, is enforceable by the union party thereto, and whether it (the hot cargo clause) may be used as an excuse by a union on strike to conduct secondary picketing.
The facts found by the Trial Examiner and the majority of the National Labor Relations Board are substantially as follows:
Local 850, International Association of Machinists (hereinafter called Machinists) became involved in an economic strike with the American Iron & Machine Works Company (hereinafter called American Iron) in September 1954. The strike lasted a little over a month, terminating upon the execution of a new collective bargaining agreement. During the course of the strike the Machinists picketed the three plants of their employer. They also picketed trucks of American Iron when they appeared at the loading platforms of certain carriers. Representatives of General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local 886 (hereinafter called Teamsters) instructed the unloading personnel of the carriers that, under the terms of the hot cargo clause of
the contract between Teamsters and the carriers, the employees were not to handle American Iron goods since they were struck goods. Certain of the carriers, despite the hot cargo clause, requested their employees to handle American Iron goods, whereupon Teamsters urged its members employed by those carriers to refuse to handle these goods. One carrier-employer took no action and did not request his employees to unload.
On charges filed by American Iron, the National Labor Relations Board (hereinafter called the Board) issued complaints, filed two days after the new contract between American Iron and Teamsters was signed, against both Teamsters and Machinists by reason of the alleged violation of Section 8(b)(4)(A) of the National Labor Relations Act, as amended. 2 A temporary injunction applied for by the Board was denied by the United States District Court for the Western District of Oklahoma.
The complaints of the Board were referred to a Trial Examiner and, after a preliminary report and consideration of the exceptions thereto, the Board, by a majority vote, two of the five members dissenting, directed that Machinists and Teamsters cease and desist from inducing or encouraging the employees of the carriers, or any other employer, to engage in a strike or concerted refusal in the course of their employment to work on or handle freight consigned to or received from American Iron, or any other employer, where an object thereof was to force or require any employer or person to cease doing business with American Iron. Two of the three members of the majority of the Board were of opinion that the hot cargo clause was valid; the third member, concurring in the result of the Board's order, was of opinion that the clause was illegal and did violence to Section 8(b)(4)(A). The two Board members comprising the majority held in effect that, even assuming that the Act itself does not prohibit the execution of a 'hot cargo' clause, nevertheless, the Act does preclude enforcement of such a clause by appeals to employees. 3
From the order of the Board, Teamsters and Machinists filed these petitions asking this court to review and set aside the order; and, in its answer to the petitions, the Board requested that its order be enforced.
Appeal in No. 13,394
Petition of General Drivers, Chauffeurs, Warehousemen and Helpers Union, Local No. 886
We agree with the four members of the Board who held that the hot cargo clause of the contract was not violative of the provisions of Section 8(b)(4)(A) of the Act. This seems also to have been held by the Second Circuit in the so-called Conway case. 4 The majority of the Board held, following Sand Door & Plywood Co., 113 N.L.R.B. No. 123, that any direct appeal to employees by a union to engage in a strike or concerted refusal to handle a product is proscribed by the Act when one of the objectives set forth in Section 8(b)(4) (A) is present. See note 3, supra.
With this we disagree. If the hot cargo clause is not violative of Section 8(b)(4)(A), and we think it is not, such a ruling would in practical effect render nugatory the clause itself and would leave the employees without adequate remedy. The Board urges that Section 8(b)(4)(A) was enacted for the benefit of the public. We think that, although the public is involved, this section has for its purpose the protection...
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