TRUCK DRIVERS UNION LOCAL NO. 413, ETC. v. NLRB

• Citation: 334 F.2d 539
• Decision Date: 09 April 1964
• Docket Number: No. 17662,17663.,17662
• Parties: TRUCK DRIVERS UNION LOCAL NO. 413, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. TRUCK DRIVERS & HELPERS LOCAL UNION NO. 728, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Watson-Wilson Transportation System, Inc., et al., Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

334 F.2d 539 (1964)

TRUCK DRIVERS UNION LOCAL NO. 413, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

TRUCK DRIVERS & HELPERS LOCAL UNION NO. 728, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Watson-Wilson Transportation System, Inc., et al., Intervenors.

Nos. 17662, 17663.

United States Court of Appeals District of Columbia Circuit.

Argued October 30, 1963.

Decided April 9, 1964.

Certiorari Denied November 16, 1964.

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Mr. David Previant, Milwaukee, Wis., with whom Messrs. Herbert S. Thatcher, Washington, D. C., and L. N. D. Wells, Jr., Dallas, Tex., were on the brief, for petitioners in No. 17,662.

Mr. L. N. D. Wells, Jr., Dallas, Tex., with whom Messrs. David Previant, Milwaukee, Wis., and Herbert S. Thatcher, Washington, D. C., were on the brief, for petitioners in No. 17,663.

Mr. Gary Green, Atty., N. L. R. B., with whom Messrs. Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., were on the brief, for respondent.

Mr. Robert T. Thompson, Atlanta, Ga., with whom Mr. Alexander E. Wilson, Jr., Atlanta, Ga., was on the brief, for intervenors in No. 17,663.

Mr. Mozart G. Ratner, Washington, D. C., for Glass Bottle Blowers Ass'n of United States and Canada, AFL-CIO, amicus curiae.

Mr. Fred W. Elarbee, Jr., Atlanta, Ga., for Brown Transport Corp., amicus curiae in No. 17,663.

Before BAZELON, Chief Judge, and BASTIAN and WRIGHT, Circuit Judges.

Certiorari Denied November 16, 1964. See 85 S.Ct. 264.

J. SKELLY WRIGHT, Circuit Judge:

The National Labor Relations Board has found certain Picket Line, Struck Goods, Subcontracting, and Hazardous Work clauses in the collective bargaining agreements of petitioner unions void under Section 8(e)¹ of the Labor Act. In their Petition to Review and Set Aside, the unions contend that these provisions are outside the prohibitions of § 8(e) because their aim is benefit to the employees of the bargaining unit, not control of, or interference with, the contracting employer's third-party relationships. The Board cross-petitions for enforcement.

A preliminary issue is whether it is the object, the effect, or the express or implied terms of the challenged clauses which are relevant to the § 8(e) charge. The unions suggest an object test, by parity of reasoning with § 8(b) (4) (B)'s secondary boycott provisions.² The Trial Examiner, in one of these companion cases, No. 17,663, considered the effect of the clauses to be relevant to their validity under § 8(e), and took extensive evidence of their effect. The Board, however, at the instance of its General Counsel, held that the implementation of a contract was not relevant to its validity under § 8(e), that extrinsic evidence of object alone was not determinative, and that the contract must be tested by its terms, express or implied. See Mary Feifer, d/b/a American Feed Company, et al., 133 N.L.R.B. 214 (1961). We agree.

The Picket Line Clause

A key provision in the union contracts protects the right of individual employees to refuse to cross picket lines by immunizing them against employer discipline. This picket line clause is broadly worded to achieve maximum application permitted by the law. The Board held that under § 8(e) of the Act the clause may validly apply only to certain types of picket lines; the union apparently would apply it to all.

The clause provides:

"It shall not be a violation of this Agreement and it shall not be cause for discharge or disciplinary action in the event an employee refuses to enter upon any property involved in a labor dispute or refuses to go through or work behind any picket line, including the picket line of Unions party to this Agreement and including picket lines at the Employer\'s place or places of business."

The Board concedes that the contract clause may permissibly operate to protect refusals to cross a picket line where the line is in connection with a primary dispute at the contracting employer's own premises. This seems clearly correct. Employees who refuse to cross such a line are entitled to the same protection as strikers under Sections 7³ and 13⁴ of the Act. See N. L. R. B. v. John S. Swift Company, 7 Cir., 277 F.2d 641, 646 (1960). The refusal to cross being a protected activity, the union and the employer may provide by contract that such refusal shall not be grounds for discharge. See National Labor Relations Board v. Rockaway News Co., 345 U.S. 71, 80, 73 S.Ct. 519, 97 L.Ed. 832 (1953).

A different result must be reached where the picket line at the contracting employer's own premises is itself in promotion of a secondary strike or boycott. Refusal to cross that line would itself be secondary activity. To the extent that the clause would protect such refusal to cross, it would then be authorizing a secondary strike, and would pro tanto be void under § 8(e) of the Act. There is no merit to the unions' suggestion that this clause is outside the reach of § 8(e) because it protects individual refusals, not union-induced refusals. We read our own cases as having rejected this argument. See Los Angeles Mailers Union No. 9, Inter. Typo. U. v. N. L. R. B., 114 U.S.App.D.C. 72, 311 F.2d 121 (1962).

The Board also held that the clause may validly protect refusals to cross a picket line at the premises of another employer if that picket line meets the conditions expressed in the proviso to § 8(b) (4)⁵ of the Act. Clearly this is the law. See National Labor Relations Board v. Rockaway News Co., supra; Meier & Pohlmann Furniture Company v. Gibbons, 8 Cir., 233 F.2d 296, 301, cert. denied, 352 U.S. 879, 77 S.Ct. 101, 1 L.Ed.2d 80 (1956).

The remaining question concerns refusals to cross a picket line at another employer's premises where that line does not meet the conditions of the § 8(b) (4) proviso. The unions maintain that refusal to cross any lawful primary picket line is primary activity under the Act and that protection thereof in the bargaining agreement falls outside the ambit of § 8(e). The Board held that refusal to cross a non-proviso picket line constitutes secondary activity, and that contractual protection of such activity violates § 8(e).

A useful approach to this question is through the legislative history of the 1959 amendments which incorporated § 8(e) into the Act. The House Labor Committee report stated: "It is settled law that the National Labor Relations Act does not require a truckdriver to cross a primary picket line * * *. * * * The employer could agree that he would not require the driver to enter the strikebound plant." House Committee Report, 1 LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 at 779 (1959).⁶ It is also clear "that the right to refuse to cross a primary picket line would not be affected by" the hot cargo ban in the bill passed by the Senate. Kennedy-Thompson analysis, 2 id. 1708(2-3).⁷ "However, in order to set at rest false apprehensions on this score, the House committee appended the disclaimer proviso" which appears in the bill as reported by the House Committee.⁸ This disclaimer explicitly protected the right of refusal to cross primary picket lines, and the right to sign contracts immunizing such refusals from employer discipline.⁹ The entire House Committee bill, however, including this disclaimer, was replaced by the Landrum-Griffin substitute on the floor of the House. But the Landrum-Griffin substitute was unacceptable to the Senate conferees because: "The House Landrum-Griffin bill apparently destroys the right to picket a plant and to honor a picket line even in a strike for higher wages. This change in the present law is entirely unacceptable." 2 id. 1708(3). It seems clear that, at least on this point, the Senate viewpoint was adopted in conference, modifying the Landrum-Griffin version. The Senate conferees secured the insertion of the following broad and all-encompassing declaration of congressional policy in the bill: "Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." Section 8(b) (4) (B).

The then Senator Kennedy explained the effect of this new provision to the Senate:

"* * * The secondary boycott provisions of the House bill would have curtailed legitimate union activities. Accordingly, the Senate conferees insisted that the report secure the following rights:

"(a) The right to engage in primary strikes and primary picketing even though the employees of other employers refused to cross the picket line.

"The fact of the matter is that there is some question under the Landrum-Griffin bill whether employees of another employer could have properly refused not sic to cross a picket line in a primary strike. That has been clarified in the conference report."

2 LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959 at 1432-1433.

Senator Kennedy further stated in a report to the Senate on the Conference: "We have protected the right of employees of a secondary employer, in the case of a primary strike, to refuse to cross a primary strike picket line." 2 id. 1389(1). This stated effect of the Senate-House Conference action seems to have been generally accepted. A speech of Senator Douglas inserted in the Congressional Record shortly afterward explained:

"Under the compromise, we also protected the right of employees of a secondary employer to refuse to cross a picket line in the case of a primary strike. The Landrum-Griffin bill, as written, appeared to take this right away."

2 id. 1834(1).

In addition, Professor Cox, now the Solicitor General, who was one of the principal architects of the legislation, has confirmed that...