LOCAL NO. 24, INTER. BRO. OF TEAMSTERS, ETC. v. NLRB

• Decision Date: 05 March 1959
• Docket Number: No. 14558.,14558.
• Citation: 266 F.2d 675,105 US App. DC 271
• Parties: LOCAL NO. 24, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

105 US App. DC 271, 266 F.2d 675 (1959)

LOCAL NO. 24, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, et al., Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 14558.

United States Court of Appeals District of Columbia Circuit.

Argued February 5, 1959.

Decided March 5, 1959.

Mr. David Leo Uelmen, Milwaukee, Wis., of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of court, for petitioners. Mr. Herbert S. Thatcher, Washington, D. C., was on the brief for petitioners. Mr. Donald M. Murtha, Washington, D. C., also entered an appearance for petitioners.

Mr. Melvin Pollack, Attorney, National Labor Relations Board, with whom Mr. Jerome D. Fenton, General Counsel, National Labor Relations Board, Mr. Thomas J. McDermott, Associate General Counsel, National Labor Relations Board, Mr. Marcel Mallet-Prevost, Asst. General Counsel, National Labor Relations Board, and Mr. Frederick U. Reel, Attorney, National Labor Relations Board, were on the brief, for respondent.

Before PRETTYMAN, Chief Judge, and BAZELON and BURGER, Circuit Judges.

PRETTYMAN, Chief Judge.

This is a petition to review an order of the National Labor Relations Board and a cross-petition for enforcement of that order. An alleged secondary boycott by a labor organization is the subject matter.

A.C.E. Transportation Company, Inc. (called ACE in this litigation) is a motor carrier of freight. Its principal office and terminal are in Akron, Ohio, and it has terminals in several distant cities. The motor vehicle used consists of two parts, (1) a tractor, which is the motor and the driver's cab, and (2) the trailer, which contains the freight. ACE owns the trailers it uses. Of the approximately 250 tractors used, ACE owns 160. It leases the other 90 tractors from eleven lessors. Some of the tractors are driven by their owners on a full-time or part-time basis. At other times these trucks are driven by hired drivers. This controversy concerns the hired drivers.

ACE and our petitioner Local 24¹ have a collective bargaining agreement, according to which the Union represents employee-drivers. That agreement is the same as the agreements which the Union has with other motor vehicle carriers. It contains an Article XXXII. Section 1 of that Article provides that owner-operators are not covered by the agreement unless they are affiliated by lease with a certificated carrier. Section 4 of the Article provides, in part: "In all cases, hired or leased equipment shall be operated by an employee of the certificated or permitted carrier." Apparently all parties contemplated that the entire agreement covered all drivers, those employed directly by ACE, those who drove their own equipment, and those who were hired to drive leased equipment.

A dispute arose as to whether Article XXXII of the agreement was valid in its application to owner-drivers. The Ohio courts held it not valid as thus applied, and enjoined all parties from giving effect to its provisions. Apparently the drivers and the Union considered that this decree struck down the sentence in Section 4, Article XXXII, which we have just quoted, and left those drivers without any agreement as to wages, working conditions, etc. Thereupon Local 24 requested recognition from the lessor-owners and sought agreements from them concerning terms and conditions of employment for the drivers of leased equipment. All the owners refused to meet these demands. Thereupon the drivers struck. In the course of the strike they picketed the ACE terminals at various cities, and in the course of the picketing the strikers directly induced employees of ACE to honor the picket line and to refrain from working. These actions on the part of the striking drivers are the subject matter of the present controversy.

The statutory provision here involved is Section 8(b) (4) (A) and (B) of the National Labor Relations Act,² the socalled secondary boycott provision of the statute. The precise question before us is whether the strikers, in the actions we have above described, violated this section of the statute.

We are met at the threshold with a question, not raised by the parties, as to whether Article XXXII of the bargained agreement covered non-owner drivers of leased equipment. In reversing the Ohio courts,³ the Supreme Court of the United States said:⁴ "The Article is in express terms made applicable only to a lessor-driver when he himself drives his vehicle in the business of the lessee-carrier." And the Court further said:⁵

"This would necessarily be the case as the text of the Article, and that text as illumined by its history, conclusively establish that the regulations in no wise apply to the terms of lease of a vehicle when driven by a driver not the owner of the vehicle; the wages, hours and working conditions to be observed by contracting employers of non-owner drivers are governed by the general provisions in that regard found in other articles of the collective bargaining agreement."

If Article XXXII did not relate to the employment of non-owner drivers of the leased equipment, those drivers apparently were not affected by the decree of the Ohio courts; they have at all times had a valid agreement with ACE in Articles other than Article XXXII concerning the terms of their employment. If that be the posture of events, the strike would appear to have been without justification. Nevertheless under such circumstances the primary employer was ACE; the picketing of ACE terminals was picketing of the primary employer; and no secondary boycott was involved in that picketing.

However that problem is not presented to us and we do not attempt to pass upon it. We will consider the case as it was considered by the Board and as it is presented to us. The trial examiner took the view that ACE, together with the lessors, is an employer of these drivers. In other words, his view was that the lessor-owners and ACE are co-employers. Upon that premise he concluded that the strikers had not engaged in a secondary boycott and had not violated Section 8(b) (4) (A) and (B). When the case came to the Board four members participated. Two joined in an opinion, a third concurred with a special opinion, and the fourth dissented. In their joint opinion the two members took the view that the lessor-owners were independent contractors in respect to ACE and that the lessor-owners were the only employers of the drivers. From that premise they concluded that ACE was a neutral in the dispute between the drivers and the lessor-owners and that therefore the picketing of the ACE terminals was a secondary boycott. The concurring member thought that the relationship between ACE and the drivers was analogous to that existing between a contractor and the employees of a sub-contractor and so found violation of the statute by the strikers. The dissenting member said he thought his co-members misconceived the issue. He believed the issue to be whether ACE stood in such relationship to the drivers of the leased equipment that it was entitled to the protection intended by Congress to be afforded to neutrals or persons "wholly unconcerned" with the primary dispute. Upon examination of the facts he concluded that, whether or not the owners of the equipment "retained sufficient indicia of the relationship to constitute themselves employers of the drivers of such equipment, it is certainly true that these owner-lessors have given over to a more-than-merely-substantial degree the indicia and exercise of the functions of an employer of these drivers to ACE." He then considered Section 8(a) (3) of the statute, which applies to representation cases, and thought that in a representation case ACE would undoubtedly be held to be an employer of the drivers. His final conclusion was that ACE could not be regarded as a neutral or "wholly unconcerned" with a dispute concerning these drivers.

The facts concerning the relationship of ACE to these drivers and to the lessor-owners and concerning the relationship of the lessor-owners to the drivers are exceedingly complicated.

ACE and the lessors.

The lessors' tractors used in ACE's service are painted with ACE's colors, name, and certificate numbers and are used exclusively in ACE's service. ACE regularly inspects these tractors to insure first-class condition. The lessors haul freight solely through the authority given ACE by the Interstate Commerce Commission and the Ohio Public Utilities Commission. ACE pays the fees for such authority. The destination and route of each shipment are designated by ACE, although the drivers may take certain alternate routes. ACE provides insurance for property damage, public liability, and cargo loss. For damages to ACE's trailers while in transit, the lessors' liability is limited to $250 for each accident. Only the lessors or their competent employees may operate the tractors, and the lessors must render their agreed services in such manner as to promote the good will and reputation of ACE. The lessors pay all costs for operation, repair, licensing and regulation of the tractors. They provide workmen's compensation coverage for their drivers and all state and federal taxes for unemployment compensation insurance, Social Security, and old-age pensions. ACE is exempt from liability for...