National Labor Relations Board v. Gluek Brewing Co.

• Decision Date: 07 August 1944
• Docket Number: No. 12625.,12625.
• Citation: 144 F.2d 847
• Parties: NATIONAL LABOR RELATIONS BOARD v. GLUEK BREWING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

144 F.2d 847 (1944)

NATIONAL LABOR RELATIONS BOARD v. GLUEK BREWING CO. et al.

No. 12625.

Circuit Court of Appeals, Eighth Circuit.

August 7, 1944.

COPYRIGHT MATERIAL OMITTED

Frank Donner, Atty., National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Howard Lichtenstein, Asst. Gen. Counsel, Ruth Weyand and Helen F. Humphrey, Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner.

Oscar J. Berg, of Minneapolis, Minn., for respondent Bach Transfer & Storage Co. Patrick L. Farnand, of Minneapolis, Minn. (Chester L. Nichols, Gerald T. Mullin, and John D. Bleecker, all of Minneapolis, Minn., on the brief), for respondent Gluek Brewing Co.

I. E. Goldberg, of Milwaukee, Wis. (Joseph A. Padway, of Milwaukee, Wis., on the brief), for intervener Brewery and Beverage Drivers, Warehousemen and Helpers Union, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L. Local 792.

Martin F. O'Donoghue and Mr. Thomas X. Dunn, both of Washington, D. C., for intervener Brewery, Malthouse and Soft Drink Workers Local Union No. 205, Affiliated with the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America.

Before STONE, THOMAS, and JOHNSEN, Circuit Judges.

STONE, Circuit Judge.

This is a proceeding by the National Labor Relations Board to enforce an order against Gluek Brewing Company and Bach Transfer and Storage Company. Brewery, Malthouse and Soft Drink Workers Local Union No. 205 (affiliated with the International Union of United Brewery, Flour, Cereal and Soft Drink Workers of America) and Local No. 792 Brewery and Beverage Drivers, Warehousemen and Helpers Union (affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L. were allowed to intervene by brief and oral argument — No. 205 in support of the enforcement and No. 792 in opposition.

This is another unfortunate labor jurisdictional conflict where the employer is the unwilling and unhappy battleground. The origin and the development of the cleavage between the two unions are unimportant here but, for the curious, may be found in Green v. Obergfell, 73 App.D.C. 298, 121 F.2d 46, 138 A.L.R. 258. It is here enough that it existed. Each union included beer truck drivers and helpers in its membership and we are concerned with those who delivered the beer produced by Gluek.

A brief outline of the present controversy is as follows: Gluek operates a brewery in Minneapolis and sells its product both locally and interstate. Bach does a truck transportation business in Minneapolis. For many years prior to and including 1941, Gluek had a closed shop contract with No. 205. This covered brewery workers and also the truck drivers who delivered the beer in Minneapolis area.¹ In November, 1941, the Teamsters started a campaign to induce the Brewers to leave No. 205 and join No. 792. This campaign took the forms of soliciting this change in unions, of urging customers of Gluek not to accept deliveries and of intimidation of Gluek and the Brewers. The tactics of threatened boycott and of intimidation so effectively reduced deliveries that there were practically none on some days. On November 27, the Brewers changed their affiliation to No. 792 and deliveries by them proceeded unimpeded until December 3. On that date, the Brewers decided to renounce this change and return to No. 205. The next morning, Gluek refused to allow its delivery trucks to go out because of fear of threatened injury to the drivers and the trucks. On December 5 or 6, Gluek called Bach, which had a contract with Teamsters, and made a temporary arrangement for delivery of its beer by Bach. January 30, 1942, this informal arrangement was replaced by a ninety-day contract. On the same day, Gluek sold eight of its delivery trucks to Bach which began using them February 2. On March 24, Gluek sold another delivery truck to Bach. April 28, this delivery contract was extended for one year.

No beer was delivered by any drivers of Brewers after December 3 except by five men who applied to Bach for employment on February 2 and 4, 1942. These five men became members of Teamsters. After December 3 until February 3, the drivers in Brewers remained on Gluek payroll as drivers doing such other work as was available at the brewery. On the latter date, they were discharged. Since discharge as drivers, they have been offered other work by Gluek and most of them have been retained doing such other work as available — usually part time.

Brewers filed a complaint with the Board, charging unfair labor practices under Section 8(1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3), against Gluek and Bach. The charge, filed with the Board, alleged a continuing attempt (since late in November, 1941) by Gluek to induce members of Brewers to change union membership to Teamsters, although it had a contract with Brewers; a suspension of its delivery department, transfer of its trucks to Bach and employment of Bach to make deliveries; since December 3, Gluek has refused to employ members of Brewers as "drivers and helpers" but has given them other part time work; and the entire procedure "is a subterfuge intended to make possible the employment of members of Local Union 792," participated in by both companies.

The Board found that an officer of Gluek and several of its supervisory employees had (from November 27, 1941 to January 30, 1942) interfered with, restrained, and coerced the members of Brewers; that transfer of deliveries to Bach was "undertaken by respondents because of the drivers' and helpers' continued adherence to Local 205, and their failure to join Local 792"; that Bach knew, at the time of such transfer, that Gluek was involved in a jurisdictional labor dispute; that, under the arrangements with Bach, Gluek has "retained substantial control over the delivery of its products, the work and working conditions of the new drivers and helpers, and ultimately, their tenure of employment"; that two members of Brewers (named in the complaint) had been "yard men" and not discharged from their positions; and that one (Mike Heller) was inducted into the armed forces on July 27, 1942.

The Board ordered both respondents, "jointly and severally," to cease and desist (a) from discouraging membership in Brewers or encouraging membership in Teamsters "by discharging or refusing to reinstate any of their employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of their employment;" (b) from giving any effect to any agreement with or recognizing Teamsters "as the representative of drivers and helpers engaged in delivery of the respondent Gluek's products;" and (c) from in any way interfering with, restraining, or coercing their employees in the exercise of their rights under section 7 of the Act, 29 U.S.C.A. § 157. Affirmatively, the Board required reinstatement or preferential employment and reimbursement of named discharged employees, with special provisions as to the soldier (Mike Heller); withholding of recognition of Teamsters, "as the representative of their drivers and helpers engaged in the delivery of the respondent Gluek's products," for labor negotiation purposes; posting of notices and informing the Board thereof; and dismissal of the complaint as affecting the two yardmen.

The issues raised here in opposition to enforcement of the order of the Board may be summarized as follows: (a) That respondents were not guilty of unfair labor practices; (b) that Bach was not engaged in interstate commerce and, therefore, not within the Act; (c) that Bach was an independent contractor and, therefore, not within the Act; (d) that the Board did not and could not find that the arrangement between Gluek and Bach was motivated by desire to defeat the rights of Brewers under the Act; (e) that two provisions of the order are impossible of performance; and (f) that one provision of the order is illegal. It is convenient to discuss together the issues (a) of unfair labor practices and (d) as to the finding or possibility of finding that the delivery arrangement was, under the Act, improperly motivated.

I. Unfair Labor Practices and Improper Motive.

The lines of argument advanced by Gluek are that the delivery arrangement was for the purpose of effecting an economy; that the statements of its official and its supervisory employees do not sustain a finding of intimidation, coercion or restraint of its employees; and that the delivery arrangement with Bach was not prompted by animus against Brewers or by any intent or purpose to discriminate against them. Bach argues that it did not discriminate in hiring drivers and helpers to deliver for Gluek. The argument of intervener Local 792 is that the Board did not find that the delivery arrangement was "for the purpose of defeating the rights of the employees Brewers under the" Act; that the Board found the "effect" of such arrangement that an intent to violate the Act existed; and that such determination is not of a fact but is an erroneous conclusion of law which the Board had no power to make.

While there was conflict in the evidence as to important particulars,² yet there was very substantial evidence to support the findings of the fact situation by the Board. For years, Gluek had operated under a closed shop contract with Local 205 (including drivers and helpers) and there is scant proof that it was not entirely satisfied therewith up until Teamsters began their raid late in November, 1941. The methods of that raid took forms which changed the entire situation in so far as Gluek's drivers and helpers were concerned. The even tenor of Gluek's business was disrupted. It experienced a boycott and threatened harm to its drivers and trucks which imperilled the existence of its local...