NLRB v. INTERNATIONAL BROTHERHOOD OF TEAM., ETC.

• Decision Date: 27 November 1959
• Docket Number: Docket 25475.,No. 14,14
• Citation: 272 F.2d 85
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 182, and its Agent, William A. Belden, Business Representative, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

272 F.2d 85 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 182, and its Agent, William A. Belden, Business Representative, Respondents.

No. 14, Docket 25475.

United States Court of Appeals Second Circuit.

Argued October 13, 1959.

Decided November 27, 1959.

Duane B. Beeson, Atty., N.L.R.B., Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Arthur C. Katims, Atty., N.L.R.B., Washington, D. C., on the brief), for petitioner.

George Schiro, Utica, N. Y., for respondents.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and SMITH, District Judge.

J. Joseph SMITH, District Judge.

This case is before the Court upon the petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act as amended (61 Stat. 136, 65 Stat. 601, 72 Stat. 945, 29 U.S.C.A. § 151 et seq.), herein called the Act, for the enforcement of its order issued on August 7, 1958, following the usual proceedings under Section 10(c) of the Act, against the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 182, hereafter called the Union, and its business representative, William A. Belden. The Board's decision and order are reported at 121 N.L.R.B. No. 39. This Court has jurisdiction, the unfair labor practices having occurred in the vicinity of Utica, New York within this judicial circuit.

The order of the Board required respondents to cease and desist from

(a) Restraining and coercing the employees of The Alling & Cory Company, Utica, New York, in the exercise of the rights guaranteed in Section 7 of the Act;

(b) Engaging in or inducing or encouraging the employees of General Electrict Company, Utica Drop Forge & Tool Company, Nugent's Confectioners, Vick's Bros. Printers, John V. Parsons Trucking Co., Western Express Company, Revere Copper & Brass Company, or any other employer, to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (1) forcing or requiring any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of The Alling & Cory Company, or to cease doing business with that company; (2) forcing or requiring The Alling & Cory Company to recognize or bargain with a labor organization as the representative of its employees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 of the Act; and to post and publish appropriate notices.

The Union attempted in the Spring of 1957 to organize the four warehouse employees and one truck driver of the Utica, New York plant of The Alling & Cory Company. The Company refused to recognize the Union, a strike was called and picketing commenced. The Company petitioned for a representation election, which was held, the Union losing by a 3-1 vote, one ballot having been challenged. On September 17, 1957 the Board's regional director certified that the Union was not the representative of the Company's employees in the bargaining unit. Picketing continued and was expanded to include picketing of customers' premises while the Company truck was making deliveries there. Employees of customers observed the picketing and were induced thereby to refrain from handling Alling & Cory's goods. Other delivery trucks were stopped and requested not to enter the customers' premises while the Company truck unloaded. The traffic manager of one customer was told by respondent's business representative that the picket line would be removed if the Company's delivery was refused, which thereupon occurred.

There are two principal questions posed by the Board's petition: whether the picketing at customers' premises is secondary boycott activity of a kind proscribed by either 8(b) (4) (A) or 8(b) (4) (B) of the Act, and whether the picketing at the employer's warehouse plus the activities at the customers' premises amount to coercion or restraint of employees within the meaning of 8(b) (1) (A) of the Act, the Union having failed of recognition as a result of defeat in a representation election.

Section 8(b) (4) (A) and Section 8(b) (4) (B) provide that it shall be an unfair labor practice for a union or its agents "to engage in, or to induce or encourage the employees of any employer to engage in, a strike or concerted refusal in the course of their employment to * * * transport, or otherwise handle or work on any goods * * * or to perform any services, where the object thereof is:

"(A) forcing or requiring * * * any employer or other person * * * to cease doing business with any other person;

"(B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9."

Section 8(b) (1) (A) makes it an unfair labor practice for a labor organization "to restrain or coerce * * * employees in the exercise of the rights guaranteed in section 7." Section 7 guarantees to employees "the right to self-organization, to form, join, or assist labor organizations, to bargain through representatives of their own choosing, * * * and * * * the right to refrain from any or all of such activities * * *"

The Act of September 14, 1959, Public Law 86-257, effective November 13, 1959 added a new unfair labor practice by adding a paragraph to 8(b) in part as follows:

"(7) to picket or cause to be picketed, * * * any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representative of his employees * * *, unless such labor organization is currently certified as the representative of such employees: * * *

"(B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted * * *"

Section 707 of the Act of September 14, 1959, 29 U.S.C.A. § 153 note, provides in part that "no provision of this title shall be deemed to make an unfair labor practice, any act which is performed prior to such effective date which did not constitute an unfair labor practice prior thereto."

The Activity at the Customers' Premises

There is no serious dispute as to the facts concerning the peaceful picketing at the premises of customers of the primary employer. There is substantial evidence on the record considered as a whole to support the Board's finding that the Union encouraged the employees of neutral customers to engage in a concerted refusal to handle the Company's products and to encourage the customers to cease doing business with the Company. We are bound to accept that finding. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; National Labor Relations Board v. Pittsburgh Steamship Co., 340 U.S. 498, 71 S.Ct. 453, 95 L.Ed. 479. There was therefore a violation of 8(b) (4) (A). N. L. R. B. v. United Steelworkers of America, 1 Cir., 250 F.2d 184. This section was enacted as a practical compromise between "the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controveries not their own." N. L. R. B. v. Denver Building & Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284. There was also substantial evidence, in the testimony as to the demands by the Union representative, to support the finding that the object of the activity at the premises of the neutrals was by inducing the neutrals' employees to engage in concerted refusal to handle the Company's goods to force the Company to recognize the Union as the representative of its employees. This established a violation of 8(b) (4) (B). N. L. R. B. v. Intern. Brotherhood of Teamsters, etc., Local 182, 2 Cir., 219 F.2d 394. The Union's principal attack on the finding of violations of 8(b) (4) (A) and (B) is based on the rule of the Moore Dry Dock case, 92 N.L.R.B. 547, applied in this circuit where the business of the primary employer has a roving situs in N. L. R....