NLRB v. Dallas General Drivers, etc., Local No. 745

• Decision Date: 12 March 1959
• Docket Number: No. 17172.,17172.
• Citation: 264 F.2d 642
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL NO. 745, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

264 F.2d 642 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DALLAS GENERAL DRIVERS, WAREHOUSEMEN & HELPERS, LOCAL NO. 745, AFL-CIO, Respondent.

No. 17172.

United States Court of Appeals Fifth Circuit.

March 12, 1959.

COPYRIGHT MATERIAL OMITTED

Thomas J. McDermott, Assoc. Gen. Counsel, N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Jerome D. Fenton, General Counsel, Arnold Ordman, Maurice Alexandre, Attorneys, National Labor Relations Board, Washington, D. C., for petitioner.

L. N. D. Wells, Jr., Dallas, Tex., Mullinax, Wells & Morris, Dallas, Tex., for respondent.

Before TUTTLE, JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

Associated Wholesale Grocery of Dallas, Inc., is a corporation under the laws of Texas. It is engaged in the wholesale grocery business and has its office and warehouse in Dallas. Its stock is owned by approximately 370 retail grocers of whom about two-thirds are in Dallas and the others are at North Texas points. Each stockholder has but one vote irrespective of the number of shares owned. There are nine directors, elected annually, who manage the affairs of the corporation. Although Associated sells only to its stockholders, they buy only about thirty-one per cent. of their requirements from Associated. The profits of Associated are distributed to the stockholders in the ratio of their purchases. A printing plant is operated by Associated and handbills are supplied to the stockholders who desire to purchase them. Earnings from this enterprise are distributed in the same manner as profits on merchandise transactions. Once a year Associated attempts to promote, through joint advertising campaigns of stockholding stores, the sale of goods bearing Associated's "Shurfine" label.

The respondent Union is the certified collective bargaining agent of the truck-drivers and warehousemen employed by Associated. After negotiations regarding wages and working conditions had failed to produce a result satisfactory to the Union, a strike was called on Monday, August 26, 1956. A picket line was placed at Associated's warehouse in an industrial part of Dallas. On the day the strike began the general manager of Associated sent to its stockholders a letter advising that incoming shipments and outgoing deliveries were, for the time being, being delayed and curtailed. Assistance by the stores to Associated's new employees was requested. In the letter Associated made a request¹ of its members to come or send someone to help load or drive trucks. In response to this request ten stores supplied help to Associated. One store furnished three men, one furnished two men, and each of the others furnished one man. No men from any of the stores worked at the Associated warehouse after the first week of the strike.

The union distributed handbills at the entrances of the retail stores and in automobiles parked nearby. These handbills stated the Union's grievances against Associated and requested the public to buy elsewhere. On October 10, 1956, the Union carried an advertisement in a Dallas newspaper requesting public support of the strike.

On October 26, 1956, the Union commenced picketing at the entrances of some of the retail stores. From October 26 to November 17, 1956, eight stores were picketed. The employees carried placards reading as follows:

Notice To The Public Only (not directed to employees of this store)

Employees Of Associated Wholesale Grocery Of Dallas Inc.

On Strike

This AG Member Store Is Unfair

Please do not buy merchandise which this store obtains from Associated Wholesale Grocery of Dallas, Inc.

Dallas General Drivers Warehousemen & Helpers Local No. 745, AFL-CIO

On November 17, 1956, two other stores, and on November 19, 1956, one of them, were picketed. The pickets on these occasions carried signs which read as follows:

Notice to Public and Store Owners Only Not Directed to Suppliers or Employees of This Store

Notice of

Associated Wholesale Grocery of Dallas, Inc. On Strike

Protesting Discharge of Union Members and for a Union Contract

This store is a member-stockholder of Associated Wholesale Grocery of Dallas, Inc. from which it obtains Substantial Quantities of Groceries including all Groceries with the Shurfine label. Please do not buy groceries obtained from Associated Wholesale Grocery of Dallas, Inc. If in doubt as to which groceries are from AWG please ask the Store Manager

Dallas General Drivers And Warehousemen Local Union No. 745 — AFL-CIO

We are not striking this store

In the first of these placards the words "On Strike" and "Unfair" were much larger than any of the other lettering. The words "not directed to employees of this store" were smaller than any of the others. The words "Notice To The Public Only", "On Strike", and "Unfair" were printed in red. The rest of the sign was in black. In the second sign the words "On Strike" dwarfed the other wording and were about four times as large as the letters of the statement "We are not striking this store." The words "On Strike" were in red. Of the ten stores picketed, four were among those which had supplied men to Associated during the first week of the strike. Each of the stores which were picketed had a rear entrance through which deliveries of merchandise were made. No store was picketed where deliveries of goods to the store were made through the same entrance as that used by the patrons of the store.

A complaint was made before the National Labor Relations Board by its General Counsel charging the Union with unfair labor practices within the meaning of Section 8(b) (4) (A) of the National Labor Relations Act, 29 U.S.C.A. § 158 (b) (4) (A).² The Trial Examiner and the Board, with one member dissenting, found that the picketing was a violation of the specified section of the Act and entered a cease and desist order. 118 N.L.R.B. 1251. The Board has petitioned this Court for the enforcement of its order.

The Union urges that the picketing was a concerted activity under Section 7 of the Act, 29 U.S.C.A. § 157,³ and not a violation of Section 8(b) (4) (A). Section 7 does not sanction or authorize prohibited or illegal acts merely because they are done by persons acting in concert. International Union v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651, rehearing denied 336 U.S. 970, 69 S.Ct. 935, 93 L.Ed. 1121.

Resisting enforcement of the Order, the Union contends that as applied to the facts here present the Order is an unconstitutional impairment of the right of free speech as guaranteed by the First Amendment. It has been stated, and we think correctly, that, "The prohibition of inducement or encouragement of secondary pressure by § 8(b) (4) (A) carries no unconstitutional abridgment of free speech." International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 71 S.Ct. 954, 960, 95 L.Ed. 1299. See also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Truck Drivers and Helpers Local Union v. National Labor Relations Board, 1957, 101 U.S.App.D.C. 420, 249 F.2d 512, certiorari denied 355 U.S. 958, 78 S.Ct. 543, 2 L.Ed.2d 533. There is nothing to make the case here an exception to the general rule.

The Union contends that the relationship between the retail stores and Associated was such as to make inapplicable the provisions of Section 8(b) (4) (A) while the contrary was found by and is here asserted on behalf of the Board. Although the Union's position is supported by a most plausible argument, we think the Board's conclusion to the contrary is sound. The fact determinations and the inferences to be drawn from them are matters which the Congress has entrusted to the Board and its findings are to be sustained when they have support in the record. See, among other cases, National Labor Relations Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170, rehearing denied 322 U.S. 769, 64 S.Ct. 1148, 88 L.Ed. 1595; National Labor Relations Board v. Ferguson, 5 Cir., 1958, 257 F. 2d 88; National Labor Relations Board v. Truck Drivers & Helpers Local Union, 5 Cir., 1956, 228 F.2d 791; National Labor Relations Board v. Coats & Clark, Inc., 5 Cir., 1956, 231 F.2d 567. The Board's determination of the issue as to whether the retail stores were independent neutral employers entitled to the protection of Section 8(b) (4) (A) or were so allied with Associated as to be outside the operation of that section, may not be set aside if it has warrant in the record. Retail Fruit and Vegetable Clerks Union v. National Labor Relations Board, 9 Cir., 1957, 249 F.2d 591.

The ten retail stores which were picketed by the Union were ten of the 370, more or less, stockholders of Associated whose business policies, including its labor relations, were fixed by its board of directors. While Associated was the supplier of a substantial part of the goods sold at the retail stores, it supplied, on an average, less than a third of the goods which the retailers purchased. There was not any common control nor, as among the retailers, any common ownership. Associated had a corporate entity separate from its stockholders which is not to be ignored. We think the record sustains the Board's conclusion that the retail stores were independent neutrals and within the purview of secondary boycott provisions of the Act. J. G. Roy & Sons Co. v. National Labor Relations Board, 1 Cir., 1958, 251 F.2d 771; Retail Fruit & Vegetable Clerks Union v. National Labor Relations Board, supra; National Labor Relations Board v. Wine, Liquor & Distillery Workers Union, 2 Cir., 1949, 178 F.2d 584, 16 A.L.R.2d 762. To be sure, four of the ten picketed stores had sent men to Associated's warehouse. As to these four retailers it might be urged that they were within the rule that one who knowingly does work which would otherwise be done by the striking employees of the struck employer is not within the...