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July 11, 1955

Charles T. DOUDS, Regional Director of the Second Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner,
MILK DRIVERS AND DAIRY EMPLOYEES LOCAL NO. 680, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Respondent

The opinion of the court was delivered by: HARTSHORNE

The Regional Director in this jurisdiction of the National Labor Relations Board -- N.L.R.B. -- files his petition for an injunction under the Labor Management Relations Act of 1947, Sec. 10(j)(1), commonly known as the Taft-Hartley Act, as amended October 22, 1951, 29 U.S.C.A. § 141 et seq., to restrain the respondent, Local 680 of the International Brotherhood of Teamsters, etc. A.F.L., from engaging in alleged 'unfair labor practices' within the meaning of Section 8 of such Act 'pending the final adjudication of the Board with respect to such matter.' Upon the hearing thereon oral evidence was taken on both sides for several days.

The specific issue is whether it is reasonable to believe that the respondent has been guilty of 'an unfair labor practice' under the Act, and whether such unfair labor practice was apt to recur, pending final adjudication in that regard by the Board, so that the issuance of a temporary restraining order in that regard would be 'just and proper'. Shore, for and on Behalf of N.L.R.B. v. Building and Construction Trades Council, 3 Cir., 1949, 173 F.2d 678, 8 A.L.R.2d 731; Douds v. Wine, Liquor & Distillery Workers, D.C.N.Y.1948, 75 F.Supp. 447, 449. The specific unfair labor practice alleged to have been committed by the respondent 'labor organization or its agents' was that it had taken steps 'to induce or encourage the employees (of a secondary employer) * * * to engage in * * * concerted refusal * * * to * * * handle * * * any goods (of a primary employer) * * * where an object thereof is: (A) forcing or requiring any 'secondary) employer * * * to cease doing business with (a primary employer) * * *.' (Parentheses the Court's.) Idid., Sec. 8(b)(4)(A). *fn1"

 To constitute such an unfair labor practice, the following factors must therefore concur: (1) an inducement or encouragement to employees of a secondary employer, (2) for them to concertedly refuse to handle the goods of the primary employer, with (3) the object of forcing the secondary employer to cease doing business with the primary employer.

 Findings of Fact

 (a) The parties agree that, as a fact, such was the object of the Union's action here. The parties further agree that in fact the letters of the Union in evidence constituted an inducement or encouragement to their members, employees of the secondary employers, not to handle the goods of the primary employer, the Crowley Milk Company -- Crowley. But the respondents deny (1) that their action went to the extent of inducing or encouraging their members to engage in a concerted refusal to handle Crowley's goods. Respondents further deny (2) that there was any such concerted refusal in fact. To simplify the matter further, it should be added that, if there was a refusal at all, this refusal was clearly concerted, since the action by the Union with respect to the many secondary employers involved, was substantially identic, and the action by the employees of these many secondary employers resulting from such Union action was in the main identic. Both parties further agree that, if there was a direct outstanding order by a secondary employer to handle the goods of Crowley, the primary employer, and this order was disobeyed, with the above admitted object, and it resulted, if and as the Union should reasonably have anticipated, from such admitted Union inducement or encouragement, then an unfair labor practice on the part of the Union would exist. But the N.L.R.B. contends that, given such an object and such an inducement, the further factor of a 'refusal' on the part of the secondary employees, essential to constitute the alleged unfair labor practice, would exist, upon a mere showing that such secondary employer was unwilling to have his employees fail to handle Crowley's goods, even though the secondary employer did not order them to handle such goods. It is further admitted by the parties as a fact that at the time in question there was a 'labor dispute' between Crowley and respondent Union.

 In the light of these admissions by the parties, both legal and factual, and the contrary contentions of the parties in that regard, we turn to the facts and the law basic to the decision of such contentions.

 (b) The facts are clear that Crowley's, the primary employer, was a large wholesale producer and distributor of milk and milk products, with its principal office in Binghamton, New York, and that it distributed therefrom to local milk product dealers in both New York and Pennsylvania, and practically throughout the entire extent of the State of New Jersey. Thus the activities of the respondent Union here, in affecting this distribution of milk and milk products throughout New Jersey, substantially affected interstate commerce, and comes within the jurisdiction of this Court.

 (c) This Court further finds as a fact that among these local milk distributors, customers of Crowley's, were the secondary employers here involved, the North Jersey Dairyland, Inc., Sunrise Dairies, International Milk Company & Town Talk Ice Cream Company, and Thompson Dairy. Further, respondent is the collective bargaining representative of the employees of all such named secondary employers, as well as of a host of other similar customers of Crowley, not directly involved in this controversy.

 (d) With all these secondary employers, the Union had a lengthy printed collective-bargaining contract, which contained a 'hot cargo' clause, providing, in substance, 'It shall not be a violation of this agreement for members of the Union to refuse to handle material in the possession of the Employer, received from any Employer with whom * * * Local 680 is directly engaged in a labor dispute * * *.' *fn2"

 (f) Upon receipt of this letter from the Union, most of Crowley's customers stopped taking milk products from Crowley's. Upon receipt of both such letters, the Union's shop stewards, in some cases posted same on the bulletin board for the attention of the employees of the secondary employers, in some cases called the personal attention of the employees thereto, and that they were to 'abide' by their rights to refuse to handle Crowley's material, and that the Union expected the employers of these employees to discontinue receipt of Crowley's goods.

 These Union instructions could only mean to these common-sense milk handlers, members of the Union, that they were to do what they had a right to do, i.e., refuse to handle Crowley's milk, in the same way as the Union expected their employers to do the same thing. Respondent contends that these employees understood, as did the shop stewards, that these specific written instructions from the Union were not meant to override, and would not be understood by its member employees to override, some general discussions at certain Union meetings, unspecified, of the further clause in the collective-bargaining contract that the men were subject to dismissal if they refused to obey their employers' orders. Thus, by inference, it would follow that they were not to disobey an employer's order, but to obey it, and then report the incident to the steward, to be taken up with the Union. Further, that all this was meant to be read in connection with the above letters.

 But there are several difficulties with this contention. The first is, that while these letters of instructions, by which the members were to 'abide', expressly alluded to their rights under the contract not to handle Crowley's goods and the Union's expectation that their employers would not handle such goods, such letters in no wise referred to these discussions about obeying an order. Indeed, such letters did not even refer to the clause in the contract regarding dismissal for disobedience of orders. Further, this clause itself was largely nullified by the 'hot cargo' clause. For the right it gave the member employees to refuse to handle Crowley's goods, would prevent them from being dismissed for refusal to obey even a direct order from their employer to handle Crowley's goods. Again, in the only case where such a direct order was issued, and where therefore this issue as to the effect of such letter on the secondary employees was raised, the result was that the men disobeyed such order, and at the direction of the shop steward. This, of itself, shows how these milk handlers, not lawyers, viewed this explicit letter.

 Finally, the statement of the Union's Secretary-Treasurer, both in his letter to Thompson's Dairy, and in his statement to Attorney Goodwin, North Jersey's lawyer, that 'Our members will not handle Crowley's milk or milk products', either meant exactly the same thing, or else it was a misstatement of fact to ...

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