Milk Drivers & Dairy Emp. v. National Lab. Rel. Bd.

Decision Date19 June 1957
Docket Number347,24443.,No. 346,Dockets 24368,346
Citation245 F.2d 817
CourtU.S. Court of Appeals — Second Circuit
PartiesMILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION NO. 338, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION NO. 680, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Samuel J. Cohen, New York City, for petitioner Milk Drivers & Dairy Employees Local Union No. 338.

Thomas L. Parsonnet, of Parsonnet, Weitzman & Oransky, Newark, N. J. (Samuel J. Cohen, New York City, on the brief), for petitioner Milk Drivers & Dairy Employees Local Union No. 680.

Norton J. Come, Atty., N.L.R.B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Rosanna A. Blake, Atty., N.L.R.B., Washington, D. C., on the brief), for respondent.

Before CLARK, Chief Judge, and SWAN and POPE, Circuit Judges.

CLARK, Chief Judge.

Milk Drivers and Dairy Employees Local 338 and Milk Drivers and Dairy Employees Local 680 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemeen & Helpers of America, AFL-CIO, petition this court to review and set aside two orders of the National Labor Relations Board based on findings by the Board that each petitioner was guilty of violating §§ 8(b) (4) (A) and 8(b) (4) (B) of the Labor Management Relations Act of 1947, 29 U.S.C. §§ 158 (b) (4) (A) and 158(b) (4) (B). 116 N.L.R.B. No. 195. The Board seeks enforcement of these orders. The two cases spring from a common factual background and were consolidated before the Board. The orders are directed against refusals by the locals to handle "hot cargo," i.e., products received by a secondary employer from a primary employer with whom they have a labor dispute.

Crowley's Milk Company, Inc., the primary employer, operates four large plants, where it manufactures and processes milk, cheese, ice cream, and other dairy products which it sells to numerous distributors. Crowley's employees are and were represented by other unions, and since 1948 Locals 338 and 680 have unsuccessfully attempted to become these employees' bargaining representatives. In 1955 the two locals adopted a common plan whereby on April 1, 1955, Local 338 would begin to picket Crowley's two New York plants and simultaneously Local 680 would start to picket Crowley's New Jersey plant. The locals were in a position to jeopardize Crowley's business relations with ice cream and milk distributors, because the employees of many of these distributors were members of the two locals. The distributors and the two locals were parties to several collective bargaining agreements containing the following hot cargo clause:1

"It shall not be a violation of this agreement for members of the Union to refuse to handle material in the possession of the Employer received from any employer with whom Local 338, or Local 584, or Local 602, or Local 607, or Local 680 is directly engaged in a labor dispute, provided such material comes into the Employer\'s possession more than 48 hours after the union gives written notice to the Employer of the existence of such labor dispute. It shall not be a violation of this agreement for the members of the union to refuse to make deliveries to or pickups from any employer with whom Local 338, Local 584, or Local 602, or Local 607, or Local 680 is directly engaged in a labor dispute, provided such refusal occurs more than 48 hours after the union has given written notice to the Employer of the existence of such labor dispute."

Thus in the event of a serious dispute between Crowley's and these locals it was likely that the employees and perhaps the employers of some of Crowley's customers would be loath to handle Crowley's products. The cases are concerned with the unions' relations with these secondary employers; the unions' relations with the primary employer, Crowley's, are not before us.

The facts of the case involving Local 338 are not disputed. On March 17, 1955, the local sent a letter to all employers who were parties to collective agreements with it, notifying them that the two locals were directly engaged in a labor dispute with Crowley's, reminding them of the hot cargo clause, and announcing: "We shall expect that, by or before April 1, 1955, you will discontinue receipt of any materials of Crowley's Milk Company * * * as long as this labor dispute continues." Edward Greco d/b/a Maple Grove Dairy was one of the secondary employers notified, and he replied that he would not co-operate for six to eight weeks, until he could get containers made up under his trade name for the by-products normally purchased from Crowley's. Negotiations between Greco and Local 338 continued until August 8, 1955, at which time Greco's employees, on instructions from the union, refused to handle Crowley's products. Greco did not acquiesce in his employees' refusal, but on August 9 posted a written notice on the bulletin board in the company drivers' room directing them to distribute and sell Crowley's products. Notwithstanding the notice, the employees on instructions from Local 338 refused to handle the products.

There is disagreement as to the activities of Local 680, but it is clear that it sent notices almost identical to those described above to numerous secondary employers who were customers of Crowley's. These notices were also sent to union stewards of these secondary employers with the following explanatory note:

"Dear Sir and Brother:
"Enclosed find copy of letter that was sent to your employer. Please see to it that all members under your jurisdiction will abide by the enclosed letter."

It was stipulated that some stewards posted these letters on the bulletin boards, and there is evidence that some members of the union were informed of their contents by word of mouth. Since the Intermediate Report, which the Board majority adopted, does not resolve the conflicts in testimony as to the union's policy, we adopt for purposes of decision here the union's version that it encouraged the secondary employees to refuse to handle Crowley's goods after April 1 unless and until secondary employers gave direct orders to do so. In fact the union contended that its policy was even milder, eschewing "concerted" refusals under any conditions; but there is substantial evidence to support the finding that concerted action was sought.

The trial examiner did not determine whether or not the secondary employers involved in the Local 680 case gave direct orders to handle hot cargo which the union ordered disobeyed. His reason, adopted by the Board, was that under recent rulings of the Board it is an unfair practice for a union to encourage concerted refusals to handle goods of other employers, regardless of employer acquiescence in the invocation of a hot cargo clause. The Board recognizes that these recent decisions are opposed to our holding in Rabouin v. N. L. R. B., 2 Cir., 195 F.2d 906, and asks us to overrule that case.

This is not the occasion for reversing ourselves in deference to administration expertise, for the legal question is one of legislative intent and statutory construction as to which the courts are fully competent and, indeed, have the ultimate responsibility. Moreover, the present issue has divided the agency into three fragmentary views which seem to be still in the process of development. Having satisfied ourselves again that our former position appears sound, we reaffirm our earlier decision. In view, however, of the Board's new position and the division among the circuits, perhaps some further analysis is in order.

In the Board's first encounter with this problem a majority found no unfair practice where the union's concerted refusal was in accordance with a hot cargo clause and the secondary employers acquiesced rapidly in the employees' refusal to touch hot cargo. The majority opinion stated three reasons for its result: (1) doubt as to whether the boycott was "secondary"; (2) the employers' rapid acquiescence after the union started the boycott; (3) the employers' advance consent embodied in the hot cargo clause. The Board explained the last ground, saying that where the employer consented in advance by putting such a clause in the collective bargaining agreement there was not "`a strike or a concerted refusal in the course of their employment to use' etc. `where an object thereof is: (A) forcing or requiring'" because the advance agreement of the employer deprived the later union acts of the requisite quality of insubordination. Rabouin d/b/a Conway's Express, 87 N.L.R.B. 972, 982, n. 29, with Chairman Herzog concurring in the result and one member dissenting. We affirmed the Board's result, approving this third rationale. Rabouin v. N. L. R. B., supra, 2 Cir., 195 F.2d 906, 912: "Consent in advance to honor a hot cargo clause is not the product of the union's `forcing or requiring any employer * * * to cease doing business with any other person.' § 8(b) (4) (A)."

The statutory language is clear: there is no violation of § 8(b) (4) unless the union encourages the employees to coerce the secondary employer. Where the employees are encouraged only to exercise a valid contractual right to which the employer has agreed there is no coercion.2 Normally the secondary employer receives something at the bargaining table in exchange for granting the hot cargo clause, and he is no more coerced when the employees subsequently exercise their privilege than a landowner is coerced when those to whom he has granted licenses cross his land.

It will not do to say that encouraging work stoppages should be an unfair practice even in the absence of secondary employer coercion because the...

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    ...by two Courts of Appeals in General Drivers, etc., v. N. L. R. B., 1957, 101 U.S.App.D.C. 80, 247 F.2d 71; Milk Drivers and Dairy Employees v. N. L. R. B., 2 Cir., 1957, 245 F.2d 817. It is noted that in reference to the latter case, the Court of Appeals for the Second Circuit, in Douds v. ......
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