Act does not say that duress, invalid at common law, is validated. Thus, while any such invalid acts at common law are not a violation of the statute, they may still remain unlawful at common law. In short, a misrepresentation of facts or duress, despite the act, still remain a misrepresentation of facts or duress. Thus it may well be, that if the Union threatened the employer, whether meaning it or not, with causing his employees to strike, under conditions which would amount to an unfair labor practice on their part if carried out by such employees, the same might constitute duress at common law. Restatement, Contracts, Sec. 492, comment g; Brownell v. Schering Corp., D.C.N.J.1955, 129 F.Supp. 879. And it is well settled that any act resulting from unlawful coercion or duress is not binding. Thus, if such duress were exerted, and the secondary employer, the International Milk Company, did acquiesce as above as a result of the same, such acquiescence might be nullified, and the International's standing order to handle Crowley's milk would still remain in effect. But this issue, which may well properly arise on the hearing before the National Labor Relations Board, cannot be passed on by this Court, since the evidence does not make it clear what the action of the Union was, which caused International's involuntary acquiescence in the obliteration of the above standing order.
The union further relies on the 'hot cargo' clause as preventing any of the above situations from showing an 'unfair labor practice' on their part. This claim is based on the contention, as stated in respondent's brief, that 'The employers were bound by contract not to insist that their employees handle the Crowley products'. But this contention would seem unsound. For, if the 'hot cargo' clause does bind the secondary employer not to order his employees to handle Crowley's products, then, as seen above, the statutorily requisite 'refusal' by such employees can never exist. Then a secondary boycott, based on such a refusal, can never amount to an unfair labor practice. Then both the Union and the secondary employer, by entering into this 'hot cargo' clause contract, will have contracted to nullify the very protection of the public which the Taft-Hartley Act was designed to afford.
It follows that if the 'hot cargo' clause thus violates in essence this important provision and intention of the statute, such clause is contrary to public policy and void.
On the other hand the Union's construction of the 'hot cargo' clause would not seem the proper one. Indeed it is difficult to see how a contract between an employer and his employees can affect the rights of the public, who are not a party to such contract. The natural and reasonable construction of the 'hot cargo' clause would seem to be, that it affects only the rights of the parties thereto. Specifically, that in exempting the employees from the duty to handle the products of an employer in the midst of a labor dispute, the clause simply means that this right of the employees exempts them from being dismissed by their employer, should they disobey his orders to handle such products. But this protection of the employees, arising from the 'hot cargo' clause, in no wise affects or diminishes the protection which the Taft-Hartley Act has thrown about the public, in proscribing unfair labor practices in the form of the secondary boycott alluded to in Section 8. Nor is this at all contrary to Rabouin v. N.L.R.B. (Conway's Case), 2 Cir., 1952, 195 F.2d 906, 912. And it is quite in accord with the opinion of Chairman Farmer of the N.L.R.B. in McAllister, supra. For in Conway there was no order issued by the employer to his employee. Such an order would obviously affect his previous consent implied from the 'hot cargo' clause. And in McAllister, Chairman Farmer called attention to the fact that while the 'hot cargo' clause, properly construed, is not per se a violation of the Taft-Hartley Act, despite it, a later order of the employer would turn a failure of his employees to handle goods into a statutory 'refusal', basic to an 'unfair labor practice'. However, while in McAllister, Chairman Farmer found that in fact there had been a re-affirmation of standing orders to handle such goods, in the case at bar no such re-affirmation, for one reason or another, would appear to exist.
Conclusions of Law
(1) As a result of the above, we find that there is reasonable cause to believe that an unfair labor practice on the part of the respondent has occurred, in its encouragement of its employees to concertedly refuse to handle Crowley's products for the proscribed object. But we find that in addition there has been but a single such refusal, and that such refusal lasted for but a day. Furthermore, the very cancellation by the Union of this refusal the day after it occurred, plus the repeated explicit statements before this Court on the part of responsible counsel as well as Union officials, show very clearly that the Union will not countenance a failure of its members, as employees, to handle Crowley's goods, the minute they are clearly ordered to do so by any such secondary employer.
(2) It is thus clear that on the evidence in this case this Court cannot find that any such labor practice is apt to recur.
(3) Under such circumstances it would not be 'just and proper' to issue the injunctive relief prayed for by the petitioner.
However, in order that the public, whose welfare is the primary concern of the Congress, may not be unduly jeopardized, the petition herein will not be dismissed, but may lie open upon the records of this Court. Thus, if there is reasonable cause to believe in the future that any such labor practice is apt to recur, prompt application may be made to this Court under said petition, in the light of any such further evidence.