Truck Drivers & H. Local U. No. 728 v. Empire State Express

• Citation: 293 F.2d 414
• Decision Date: 07 July 1961
• Docket Number: No. 18582.,18582.
• Parties: TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Appellant, v. EMPIRE STATE EXPRESS, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.2d 414 (1961)

TRUCK DRIVERS AND HELPERS LOCAL UNION NO. 728, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Appellant, v. EMPIRE STATE EXPRESS, INC., Appellee.

No. 18582.

United States Court of Appeals Fifth Circuit.

July 7, 1961.

John S. Patton, Wm. B. Paul, Poole, Pearce & Hall, Atlanta, Ga., for appellant.

Robert T. Thompson, Atlanta, Ga., W. Edward Swinson, Swinson, Elliott & Schloth, Columbus, Ga., Wilson, Branch & Barwick, Atlanta, Ga., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

This is a suit under Section 303 of the National Labor Relations Act, 29 U.S.C.A. § 187. That statute gives a cause of action for damages to a party injured by a "secondary boycott," described in the same language as that employed in Section 8(b) (4) of the Act, 29 U.S.C.A. § 158(b) (4),¹ which declares the "secondary boycott" an unfair labor practice. Section 303 provides in part:

"(a) It shall be unlawful * * * for any labor organization * * * to induce or encourage the employees of any employer to engage in, a strike * * * where an object thereof is —

"(1) forcing * * * any employer * * * to cease using, selling, handling, transporting * * * or to cease doing business with any other person;

"(2) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees * * *."

It was alleged that Local 728 induced the employees of the Service Cartage Company to strike, the object being to force Service to cease doing business with Empire State Express, Inc., and/or to force Empire to recognize Local 728.

The undisputed facts out of which this controversy grew are these. Prior to August 1, 1955, there existed in the State of Georgia an over-the-road truck line known as ACA Motor Lines, Inc. (hereinafter referred to as ACA). ACA's territory embraced a number of communities south and southwest of Atlanta, its northern terminus and its headquarters. In Atlanta, ACA collected freight from local shippers and distributed to local consignees itself. In the terminology of the trade, ACA performed its own cartage work. This freight was brought to ACA's terminal and loaded in its trailers for shipment south to the communities it serviced.

ACA went out of business and sold its franchise and some of its equipment to Empire, which began operations on August 1, 1955. The owners of Empire, Rowlenson and Livingston, decided not to have their company engage in cartage operations in Atlanta. Instead, they entered into a contract with Service Cartage Company, a partnership composed of Viness and Busby, whereby Service agreed to handle the collection and delivery of Empire's freight in Atlanta. Under this agreement, Service was, inter alia, to maintain a terminal in Atlanta to serve as a collection and distribution center for freight carried by Empire. All of Service's employees were former employees of ACA for whom they had performed similar services. Thus, it could be said that Empire succeeded to ACA's over-the-road operations, and Service to ACA's local cartage operations in Atlanta.

Empire decided to base its operations in Columbus, Georgia. This gave rise to the problem of what to do about five over-the-road drivers domiciled in Atlanta who were former employees of ACA. Empire's owners wanted these drivers to move to Columbus as soon as possible. In the meantime, they were to work out of Atlanta driving Empire's trucks south. While based in Atlanta, these drivers were to be dispatched by Mr. Viness of Service.

On August 26, 1955, these five drivers refused to drive the trucks from the Atlanta terminal because they claimed the equipment was unsafe.² The following day Empire sent other employees from Columbus to Atlanta to move the trucks. The five over-the-road drivers never returned to work, although they appeared at the Atlanta terminal from time to time. They were never given notice of discharge and nobody was hired to replace them.

The five over-the-road drivers were members of Local 728. On July 28, 1955, prior to Empire's commencing operations, an official of the Local had contacted Empire requesting that Empire recognize 728 as the exclusive bargaining representative for these five drivers.³ The issue was discussed but not resolved at that time. On August 29, an official of Local 728 again contacted Empire in regard to signing a contract recognizing the Local as the exclusive bargaining agent for the five Atlanta-based drivers. Empire replied that it had no over-the-road drivers belonging to Local 728, "because of what took place" on August 26. "They refused to work and * * * any time anyone refused to work and operate and do that which they were told to do, they automatically quit and left our employ."⁴ On September 9 or 10th, Empire made explicit its refusal to recognize Local 728.⁵ On September 13, Local 728 established a picket line at the Atlanta terminal. The pickets carried signs stating that the Local was on strike against Empire State Express.⁶ As the picketing began, a representative of Local 728 told the employees of Service to go out on strike, which they did.

Out of these facts the present suit arose. Plaintiff complained, as noted above, that Local 728 induced the employees of Service to strike, the object being to force Service to cease doing business with Empire and/or to force Empire to recognize the union.

Local 728's principal defense was that Empire did not occupy the status of "any other person" within the meaning of Section 303(a) (1), and Service was not "any other employer" within the meaning of Section 303(a) (2). It relied in the main on the following facts.

The telephone in the Atlanta terminal, though paid for by Service, was listed in the name of Empire. There was no Atlanta telephone listing for Service. The phone was on a number of occasions answered "Empire State Express." One of the local drivers testified that, "when I walk in the building of a prospective shipper I say, `Have you got anything for Empire State Express.'" There were no signs on the terminal indicating that it was the terminal of either Service or Empire. Both Empire and Service distributed to shippers printed circulars which advertised the Atlanta terminal as that of Empire and made no mention of Service. Practically all the freight handled by Service was for the account of Empire.⁷ Service owned five trucks (three tractors and two van-type trucks). In addition, it used one van-type truck owned by Empire, which was loaned to Service without charge. None of these six trucks bore an inscription which would indicate their owner or operator. At times, however, Service's tractors hauled trailers which bore Empire's name. All freight payments went directly to Empire, and Empire paid Service at the rate of 25 cents per hundred weight for all freight handled by it. The five over-the-road drivers of Empire domiciled in Atlanta received their instructions from Jack Viness, co-owner of Service, from August 1 until they struck on August 26. The log books and time records of these drivers were delivered to Viness who mailed them to Columbus, and the checks for these drivers were mailed from Columbus to Viness, who distributed them at the Atlanta terminal. Finally, there was uncontradicted testimony that Viness had some authority as to the settlement of grievances relating to the five over-the-road drivers.⁸

The District Court charged the jury that:

"It contends, however, that Empire and Service are not separate companies. In addition to the defendant\'s contentions as I read to you from its answer in this case, it contends that Empire and Service were one company, or in effect one company, or substantially the same company; that Service is part and parcel of Empire; that Service is actually an arm of Empire, and that Service is an ally and alter ego and an agent of Empire, and the defendant union says that the picketing was primary picketing and not secondary picketing.

* * * * * *

"It becomes important that we understand what the law means by `agent\' and `agency\', and what it means by `independent contractor\'.

* * * * * *

"Now as to the relationship between Empire and Service, if Service Cartage Company was merely an agent of Empire it would not be a separate, independent person, and you would find for the defendant.

"If, however, Service Cartage Company was not an agent but an independent contractor with Empire you may find that the necessary separateness and independence exists. The business relationship usually and ordinarily existing between one company and an independent contractor with such company, by reason of one company being an independent contractor with the other, will not destroy or prevent the necessary separateness and independence between the two companies and will not prevent the two companies from doing business with each other within the meaning of the Act.

"The essence of a secondary boycott is that its sanctions or pressures bear directly, not alone upon the employer who alone is a party to the labor dispute, but directly upon some third party who has no concern in it. * * *

* * * * * *

"Insofar as the terms `agent, agency, neutral, neutrality, ally, alter ego\' and `independent contractor\' are concerned the test boils down to this: are the two enterprises the same? If they are the same then the terms of the statute `any other person\' in the phrase `to cease doing business with any other person\' and the terms `any other employer\' in the phrase `forcing or requiring any other employer to recognize or bargain with a labor organization\' are not met. That is, if the two enterprises are the same.

"If the two enterprises, however, are not the same then these particular terms of these statutes are met.

* * * * * *

"In determining whether any person is acting as an agent of another person so as to make such other person responsible for his

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