Merchandise Warehouse Co. v. ABC Freight For. Corp.

• Decision Date: 14 August 1958
• Docket Number: No. IP 57-C-2.,IP 57-C-2.
• Citation: 165 F. Supp. 67
• Parties: MERCHANDISE WAREHOUSE CO., Inc., a Corporation, Plaintiff, v. A. B. C. FREIGHT FORWARDING CORP.; Chicago Express, Inc.; Huber & Huber Motor Express, Inc.; Indianapolis-Kansas City Motor Express Co.; Michigan Motor Freight Lines, Inc., Defendants.
• Court: U.S. District Court — Southern District of Indiana

165 F. Supp. 67

MERCHANDISE WAREHOUSE CO., Inc., a Corporation, Plaintiff, v. A. B. C. FREIGHT FORWARDING CORP.; Chicago Express, Inc.; Huber & Huber Motor Express, Inc.; Indianapolis-Kansas City Motor Express Co.; Michigan Motor Freight Lines, Inc., Defendants.

No. IP 57-C-2.

United States District Court S. D. Indiana, Indianapolis Division.

August 14, 1958.

Cadick, Burns, Duck & Neighbours, Indianapolis, Ind., by Floyd W. Burns and William E. Roberts, Indianapolis, Ind., for plaintiff.

Rosenfeld, Wolfe & Allen, by Robert G. Wolfe, Terre Haute, Ind., for defendants.

Nathaniel T. Helman, New York City, of counsel, for A. B. C. Freight Forwarding Corp.

HOLDER, District Judge.

The parties filed an agreed statement of facts which together with the admitted allegations contained in the pleadings comprise the facts upon which the case was submitted to the Court for decision of the issues of the pleadings.

The plaintiff during the period of time from October 22, 1956 through December 14, 1956 was engaged in the public warehousing business in the City of Indianapolis, Indiana. In the normal operation of its business, it received and shipped a substantial part of the property of its customers by defendants' common carrier freight forwarder and motor common carriers, which included pickup and delivery service in accordance with their duly published tariffs.

The defendant, A. B. C. Freight Forwarding Corp., (hereinafter referred to as Freight Forwarder) during said period was doing business in Indiana and other states as a common carrier operating as a freight forwarder in interstate commerce under Part IV of the Interstate Commerce Act, 49 U.S.C.A. § 1001 et seq., pursuant to a permit issued by the Interstate Commerce Commission under Section 410 of the said Act. It assembled and consolidated, or provided therefor, shipments of property. It performed, or provided therefor, break-bulk and distributing operations of consolidated shipments of property. It assumed responsibility for the transportation of property and in providing therefor it utilized the services of carriers subject to Chapters 1, 8 or 12 of Title 49 of the United States Code Annotated. It admits that the acts or omissions of such carriers are the acts or omissions of itself.

All of the other defendants during said period (hereinafter referred to as Motor Common Carriers) were doing business in Indiana and other states as common carriers by motor vehicle transporting general commodities for compensation in interstate commerce pursuant to certificates of public convenience and necessity issued by the Interstate Commerce Commission under Part II of the Interstate Commerce Act, 49 U.S. C.A. § 301 et seq. Some of these defendants competed with one another. All of the motor common carriers were also operating under franchises granted by the Public Service Commission of Indiana pursuant to Indiana law.

The "over-the-road", and "city" drivers, and platform workers of the Motor Common Carriers were members of local unions affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A.F.L.-C.I.O., the Indianapolis unit being Local Union No. 135. The employees of the contractor handling the cartage for the Freight Forwarder were also members of such Union.

During said period all of the defendants, pursuant to their tariffs, received at their Indianapolis terminals certain shipments of freight in interstate commerce consigned to plaintiff at Indianapolis, Indiana, and during said period the plaintiff had freight for transportation in interstate commerce by the defendants. The plaintiff requested the defendants to deliver and/or pick up said shipments and each defendant failed on one or more occasions at their docks to handle said shipments and make such delivery and/or pickup and from plaintiff, because of the said Union's picket line at plaintiff's properties or that the shipments were "hot cargo".

During said period the said Union had an established picket line at plaintiff's properties for the alleged purpose of compelling the plaintiff to recognize the union as the collective bargaining representative of the warehousemen employed by plaintiff. Litigation between plaintiff and the Union in the Superior Court of Marion County, the Appellate, and Supreme Courts of Indiana terminated the picketing on December 14, 1956. There was no violence, no threats of violence, and no probability of violence or threats thereof of any kind in connection with the said picket line. There was no mass picketing, nor was any attempt made at those premises during the picketing to block ingress and egress of plaintiff's properties.

During said period the managerial and supervisory personnel of the defendants directed their union employees at their docks to handle said shipments and to deliver and/or pick up said shipments of plaintiff who refused to cross the picket line at plaintiff's properties or on the grounds that the shipments were "hot cargo" as was the custom of the Union.

During said period no defendant declared any embargo against plaintiff. All freight tendered to defendants at some point other than Indianapolis and consigned to this city was accepted by the defendants and transported to Indianapolis.

No defendant discharged or otherwise disciplined any of its employees for said failure to handle, deliver and/or pick up the shipments or to permit any one else to do so. Each defendant believed and it was probable that if its employees had crossed, or attempted to cross, the picket line such employee would have lost his union card or would be fined by said union. Each defendant believed and it was probable that they incurred a substantial risk of a strike by said Union if they had discharged or disciplined their employees for failure to perform said services, or if they had used their supervisory personnel or non-union labor to perform said services. The union employees of other carriers or freight forwarders would not service them, and it was probable the strike would encompass their entire nationwide systems.

During said period the defendants and the Union were operating under contract containing the terms and conditions of employment. Among the provisions of the contract is Article IX known as the Protection of Rights Clause and reads as follows:

"It shall not be a violation of this Contract and it shall not be cause for discharge if any employee refuse to go through the picket line of a Union or refuse to handle unfair goods. Nor shall the exercise of any rights permitted by law be a violation of this Contract. The Union and its members, individually and collectively, reserve the right to refuse to handle goods from or to any firm or truck which is engaged or involved in any controversy with this or any other Union; and reserve the right to refuse to accept freight from or to make pickups from or deliveries to establishments where picket lines, strikes, walk-outs or lock-outs exist.

"The term `unfair goods' as used in this Article includes, but is not limited to, any goods or equipment transported, interchanged, handled, or used by any carrier, whether party to this Agreement or not, at any of whose terminals or at any of whose places of business there is controversy between such carrier or its employees on the one hand, and a labor union on the other hand; and such goods or equipment shall continue to be `unfair' while being transported, handled or used by interchanging or succeeding carriers, whether parties to this Agreement or not, until such controversy is settled.

"The Union agrees that, in the event the Employer becomes involved in a controversy with any other Union, the Union will do all in its power to help effect a fair settlement.

"The Union shall give the Employer notice of all strikes and/or the intent of the Union to call a strike of any Employer and/or place of business, and/or intent of the members to refuse to handle unfair goods. The carriers will be given an opportunity to deliver any and all freight in their physical possession at the time of the receipt of notice. Any freight received by a carrier up to midnight of the day of the notification shall be considered to be in his physical possession. However, freight in the possession of a connecting carrier shall not be considered to be in the physical possession of the delivering carrier.

"The insistence by any Employer that his employee handle unfair goods or go through a picket line after they have elected not to, and if such refusal has been approved in writing by the responsible officials of the Central States Drivers Council, shall be sufficient cause for an immediate strike of all such Employer's operations without any need of the Union to go through the grievance procedure herein."

The agreed interpretation of Article IX was as follows:

"1. The notice which the Union is required to give the Employer of strikes or the intent of the Union to call strikes or of refusal of members of the Union to handle `unfair' goods does not have to be a written notice. An oral notice is sufficient.

"2. Such notice is required only with respect to strikes in which the Truck Drivers' Union is involved. It is not required in connection with strikes of other Unions.

"3. The provisions which gives the Carrier the opportunity to deliver any and all freight in its physical possession at the time of the receipt of the notices referred to above does not mean that the Carrier can require the employees to go through a picket line in disposing of such freight. If the employees refuse to do so, the Carrier must dispose of the freight in some other manner.

"4. The only written notice which is required under Article IX is the notice that comes from a responsible official of the Central States Drivers' Council after the employees have exercised their rights under Article IX, but the Company, nevertheless, insists that they go through the picket line or handle

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