NLRB v. LOCAL 135, INTERNAT'L BRO. OF TEAMSTERS, ETC.

• Decision Date: 22 July 1959
• Docket Number: No. 12541.,12541.
• Citation: 267 F.2d 870
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

267 F.2d 870 (1959)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 135, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL-CIO, Respondent.

No. 12541.

United States Court of Appeals Seventh Circuit.

June 17, 1959.

Rehearing Denied July 22, 1959.

Thomas J. McDermott, Associate Gen. Counsel, Melvin Pollack, Atty., Jerome D. Fenton, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Norton J. Come, Deputy Asst. Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.

Edward J. Fillenwarth, Indianapolis, Ind., Gregg, Fillion, Fillenwarth & Hughes, Indianapolis, Ind., of counsel, for respondent.

Before MAJOR, HASTINGS and KNOCH, Circuit Judges.

MAJOR, Circuit Judge.

This case is here upon the petition of the National Labor Relations Board for enforcement of its order issued against respondent Union on March 14, 1957, pursuant to Sec. 10(c) of the National Labor Relations Act as amended (61 Stat. 136, 29 U.S.C.A. § 151 et seq.). This court has jurisdiction under Sec. 10 (e) of the Act, the unfair labor practices found by the Board having occurred in Indianapolis, Indiana, within this judicial circuit. The Board's findings of fact, conclusions of law and order are reported at 117 N.L.R.B. 635. The Board found that the Union violated Sec. 8(b) (4) (A) and (B) of the Act by inducing and encouraging the employees of concerns doing business with Capital Paper Company and Consolidated Sales, Inc. (herein jointly referred to as Capital), not to handle Capital freight, with the objective of disrupting Capital's business relations with these concerns and of forcing Capital to deal with the Union as the collective bargaining representative of its employees, even though it had not been certified by the Board.

The two concerns jointly referred to as Capital constitute a unified enterprise engaged in the wholesale distribution of paper products, building materials, appliances and other items. Their purchases and sales in interstate commerce are substantial. Thus, no jurisdictional issue is presented.

The contested issues are two: (1) whether the Board properly found that the Union was responsible for stewards as agents of the Union, and (2) whether the Board's order properly enjoins the Union from violating Sec. 8(b) (4) (A) and (B), not only as to Capital but as to all other employers. Relative to the first issue, respondent urges that the stewards were not its agents, that it was not responsible for their conduct and activities and, predicated upon this contention, that testimony of statements made by such stewards was hearsay and therefore improperly admitted by the Trial Examiner.

A detailed statement or analysis of the evidentiary facts relied upon by the Board in support of its decision would unduly prolong this opinion and, in our judgment, would serve no useful purpose. A careful study of the evidence, oral and documentary, is convincing that the Board's findings are supported and that its order is proper and should be enforced. We shall, therefore, attempt to limit our discussion to some of the more salient aspects of the situation.

In December, 1955, respondent began an organizational campaign among the employees of Capital. On December 16, it requested recognition. This was denied by Capital and, on December 19, the Union filed a representation petition with the Board on which a hearing was held January 10, 1956. On February 13, the Union established a picket line at the premises of Capital. On the following day, the Board issued its Decision and Direction of Election in the representation case. On February 23, respondent sought to withdraw its representation petition, which request the Board denied by an order dated February 29. On the same day, Capital filed the charge upon which the complaint in the present proceeding is based. On April 13, the United States District Court for the Southern District of Indiana entered an order enjoining respondent from engaging in conduct violative of Sec. 8(a) (4) (A) and (B) of the Act, pending adjudication before the Board. At the time of the hearing before the Trial Examiner, respondent was still picketing the premises of Capital.¹

Swiftly following the establishment of the picket line at the premises of Capital, a series of events occurred which in the main constitute the basis for the unfair labor practices with which respondent is charged. In summary, these events consisted of a refusal on the part of the stewards and other employees of five named secondary employers, all customers of Capital, to accept or unload goods and merchandise consigned to such secondary employers by Capital. The five named secondary employers are Allied Grocers, Southern Motor Express, Inc., McDaniel Freight Lines, Inc., Motor Freight Corporation and R. D. Motor Express Company. The employees of all of these secondary employers were members of respondent Union. Refusals to receive freight from Capital at the premises of each followed a same or similar pattern. They were made or participated in by stewards, assistant stewards and other employees. The reasons generally assigned for such refusals were that the shipments from Capital "had come through a picket line," were "unfair freight" and "hot goods." On several occasions a driver of a Capital truck would insist that the shipment should be accepted because there was no legal strike at Capital. Thereupon, a steward would telephone the Union hall (respondent's), where he was told that there was a strike and picket line at Capital. The refusal to accept a shipment followed. There was testimony by one witness that he was told by the dock employees at McDaniel Freight Lines that they refused to handle the freight "because the Union had advised them not to." On cross-examination, however, this witness explained this testimony with the statement, "Being a former Union member I knew that in the contract there is a `hot goods' clause that declares that `unfair goods' does not have to be handled by the Union member."

A revealing incident is shown in connection with the refusal to receive Capital freight at the premises of R. D. Motor Express Company. There, employee Ervin called the Union hall to ascertain if there was a strike at Capital. Immediately afterward he stated, "I can't handle that. * * * I might get hell if I did or if I don't." In response to an inquiry by a representative of management as to why the shipment would not be accepted, Ervin stated, "Well, I just called the hall, and he said it was `hot goods.'" At that time Ervin signed the following statement, "This is to certify that Capital Paper Co. offered shipments this date for transport to Muncie and Anderson, Indiana and shipments were refused at this dock due to the fact that Capital Paper is on strike. Union Hall was called and approval given to refusal." Respondent's officials, including its president, when advised of the written statement which Ervin had made, became much concerned. They demanded its return and in order to obtain same went so far as to cause a work stoppage at the employer's plant.

From the circumstances related and others shown by the record, the Trial Examiner concluded that the stewards "were acting within the scope of their authority and that their conduct was likewise binding upon the Union." This conclusion of the Trial Examiner and his findings in its support were approved by the Board, and we think properly so.

Respondent, in contending that the stewards were not its agents or that it was not responsible for their activities, relies, erroneously we think, upon common law principles. Section 2(13) of the Act provides:

"In determining whether any person is acting as an `agent\' of another person so as to make such other

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