Douds v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC.

• Decision Date: 17 January 1956
• Citation: 139 F. Supp. 702
• Parties: Charles T. DOUDS, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL NO. 976, AFL; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Joint Council No. 67, AFL; and Butter, Eggs, Cream and Cheese Drivers, Route Salesmen, Helpers and Handlers, Local No. 277, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Respondents.
• Court: U.S. District Court — Southern District of New York

139 F. Supp. 702

Charles T. DOUDS, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL NO. 976, AFL; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Joint Council No. 67, AFL; and Butter, Eggs, Cream and Cheese Drivers, Route Salesmen, Helpers and Handlers, Local No. 277, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Respondents.

United States District Court S. D. New York.

January 17, 1956.

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Theophil C. Kammholz, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Winthrop A. Johns, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., John J. Cuneo, Chief Law Officer, Region 2, Leonard S. Kimmel, Atty., N. L. R. B., New York City, William W. Kapell, Atty., N. L. R. B., Washington, D. C., for petitioner.

Cooper, Ostrin & De Varco, New York City, Clarence Beck, Salt Lake City, Utah, for International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 976, AFL and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Joint Council No. 67, AFL, Respondents.

Herman E. Cooper, George A. Nicolau, New York City, of counsel.

HERLANDS, District Judge.

This motion for a "10-l" temporary injunction has been brought on by an order to show cause filed by petitioner, the National Labor Relations Board, pursuant to section 10(l) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. § 141 et seq., herein called "the Act."

Petitioner seeks to enjoin respondents "from engaging in certain acts and conduct" alleged to be "in violation of the National Labor Relations Act, as amended, pending the final adjudication of the N. L. R. B., with respect to such matters." The specific provision of the Act alleged to have been violated is section 8(b), subsection (4) (A), herein called "8 b 4 A."

The three separate respondents — all of whom are sister locals affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L. — are: (1) Local No. 976; (2) Joint Council No. 67; and (3) Local No. 277, Butter, Eggs, Cream and Cheese Drivers, Route Salesmen, Helpers and Handlers.

There are two charging parties: Cache Valley Dairy Association (herein sometimes called "Cache") and Dairy Distributors, Inc. (herein sometimes called "Distributors"). Both charging parties are "the primary employers" and will sometimes be referred to in this opinion as such.

The order to show cause, signed on October 13, 1955, was made returnable on October 25, 1955. It provided for respondents to file their answers to the petition on or before October 21, 1955, and for the forthwith service by a United States Marshal of the order to show cause and its supporting papers upon each of the three respondents and upon the two charging parties.

Personal service was made upon Local No. 277 through its president on October 14, 1955. This union is located in New York City; and it will be sometimes referred to in this opinion as "277" or "the New York City local."

Personal service was made on October 17, 1955 upon Local No. 976 and Joint Council No. 67, through one Milo Rash, who is the secretary of the former and the trustee of the latter. These two unions will be sometimes referred to in this opinion as "the Utah unions."

Service by registered mail was made on October 13, 1955 on the two charging parties, who are the primary employers.

Hearings and argument on the issues raised by the petition and answer were duly held on November 2, 1955 and December 14, 1955. The Court has fully considered the petition, answer, evidence, and argument and briefs of counsel.

Upon the entire record, the Court makes the following findings of fact and conclusions of law:

Findings of Fact

1. Petitioner is Regional Director of the Second Region of the National Labor Relations Board, an agency of the United States, and filed the petition herein for and on behalf of the Board.

2. Respondent Local No. 976, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL; and respondents Joint Council No. 67, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL and Local 277, Butter, Eggs, Cream and Cheese Drivers, Route Salesmen, Helpers and Handlers, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, are unincorporated associations and are labor organizations within the meaning of sections 2(5), 8(b) and 10(l) of the Act; and at all times material herein, respondents have been engaged within this judicial district in transacting business and in promoting and protecting the interests of their employee members and employee members of affiliated local unions. Local 976 and Joint Council No. 67 will be called herein "the Utah unions." Local 277 will be called herein the "New York City union."

3. On or about September 29, 1955, Cache and Distributors, pursuant to the provisions of the Act, filed amended charges with the Board to charges originally filed with the Board on September 2, 1955; and said amended charges allege that respondents have engaged in and are engaging in unfair labor practices within the meaning of 8 b 4 A.

4. Said charges and amended charges were referred to petitioner as Regional Director of the Second Region of the Board for investigation and were investigated by petitioner under his supervision.

5. There is, and petitioner has, reasonable cause to believe that:

(a) Cache, one of the primary employers, is the largest Swiss cheese processor and producer in the world. Its factory, located at Smithfield, Utah, employs ninety workers. It is a dairy cooperative, organized under the laws of Utah as a non-profit corporation. Its membership consists of approximately 1600 dairy farmers in the area. It sells and ships annually, dairy products valued at more than $1,000,000 to customers outside Utah.

(b) Distributors, the other primary employer, a Utah corporation also located at Smithfield, Utah, is a wholesale distributor of the cheese and other dairy products manufactured by Cache Valley Dairy Association, with which it is closely affiliated. It employs eight workers. Its principal function is to transport the cheese to other distributors in various cities, including N. Dorman & Co., Inc. in New York City. It sells and ships annually, dairy products valued at more than $1,000,000 to customers outside Utah.

(c) The secondary or neutral employer involved in this proceeding is the above-mentioned New York City firm known as N. Dorman & Co., Inc. It will be referred to in this opinion as "Dorman" or "the secondary employer." It is a dealer in cheese and dairy products. It was a regular (and the largest single) customer of the primary employers. It sells and ships annually, in excess of $50,000 of its products outside New York State. It distributes dairy products to chain stores and jobbers.

(d) The genesis of the dispute between Cache and Utah unions goes back to 1951. During each of the years from 1946 to 1950, Cache had entered into labor union contracts. During 1951 and 1952, unresolved negotiations and meetings led to a strike on May 14, 1952 and to charges by Local No. 976 that Cache and its manager and controlling executive (one Edwin Gossner) had committed unfair labor practices by, inter alia, refusing to bargain collectively with that local as the exclusive employees' representative. An N. L. R. B. trial examiner's report issued November 28, 1952, was adopted by the Board on March 4, 1953 (Respondents' Exhibit 1, Hearing of November 2, 1955, p. 66). No contract has been made between Local No. 976 and either Cache or Distributors since 1951.

(e) For several months past, commencing in or about July 1955, the Utah unions have been engaged in a campaign to organize the employees of the primary employers and to obtain recognition as the collective bargaining representative of their employees.

(f) In furtherance of the objective set forth in subparagraph "(e)" above, the Utah unions, on or about July 26 and July 27, 1955, picketed alongside of a truck of Distributors at the premises of Dorman in New York City while Distributors was attempting to deliver Cache products to Dorman. The picket signs carried during this picketing read as follows:

"Notice: Cheese carried and delivered by this truck has been worked, processed by non-union employees of the Cache Valley Dairymen's Association, Smithfield, Utah."

and was signed, "Teamsters Joint Council No. 67."

(g) That on or about July 28, 1955 — the day after one Arthur Nigro (an employee of the secondary employer) had helped unload a Dairy Distributors' truck which had been picketed — Nigro met with one Ristuccia, the president of Local 277, who told him that he did not think that Nigro should have unloaded the truck, and that he could have brought Nigro up on charges; but that no charges were ever brought.

(h) That in the early part of August 1955, a truck owned by Mid-States Trucking Company, came to the secondary employee with a load of Cache cheese; that Harry Rosen (a foreman-employee of the secondary employer) asked said Ristuccia, whether the truck should be unloaded; that Ristuccia asked to see the driver of the truck; and that the truck was not unloaded that day.

(i) That on or about September 1, 1955, one John Gredell (an employee of the secondary employer) in the company of a fellow employee (George Stewart), was asked by said Ristuccia whether a truck from Utah had come in that day; that Gredell answered that it had not; and that Ristuccia replied, "I don't think you should unload it."

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