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National Labor Relations Board v. Highway Truckdrivers and Helpers

February 23, 1962


Author: Staley

Before MCLAUGHLIN, STALEY and FORMAN, Circuit Judges.

STALEY, C. J.: This is a secondary boycott case in which the National Labor Relations Board ("Board") seeks enforcement of an order*fn1 issued against Highway Truckdrivers and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent ("union"). The Board found that the union, in course of a strike, violated various provisions of the Labor Management Relations Act, 1947 ("Act"), 29 U.S.C.A. § 141 et seq., namely, § 8(b)(1)(A), by threatening and coercing certain employees of secondary employers, and by obstructing entrance to and exit from the Riss & Company, Inc., ("Riss") terminal, and 8(b)(4)(i) and (ii)(B) by inducing and encouraging employees of neutral employers to refuse to handle Riss freight, and restraining and coercing persons engaged in commerce with an object of forcing neutral employers to stop doing business with Riss.

Riss employed a number of union members as drivers to perform local pickup and delivery services in the Philadelphia area. This operation was conducted from a Philadelphia terminal owned by persons who also held all the stock in Riss. The terminal was shared with four other freight carriers including Cartage and Terminal Corporation ("Cartage"), and Salem Express ("Salem"). On December 23, 1959, Riss notified the drivers that beginning with January 1, 1960, Cartage would perform all of Riss' local pickup and delivery work, and on December 31, 1959, each driver was sent a termination notice.

To support the § 8(b)(4)(i) and (ii)(B) findings, the Board relied first on what it called the Royce incident that took place on December 29, 1959. The record shows that twice on December 29, 1959, several men unhooked a Riss trailer that was attached to a tractor driven by George Royce, an employee of Cumberland Transport. The first unhooking took place at the Riss terminal and the second at the Pennsylvania Railroad piggyback yard in Philadelphia. The Board also relies on events that occurred at the North Penn Transfer Company terminal where on January 20, 1960, a shipment was received from Riss on interline. Thereafter, North Penn employees, who were also members of the union, refused to handle Riss freight. Lastly, the Board points to picketing of the Riss terminal beginning on December 29, 1959.

The union does not challenge the Board's conclusion that a § 8(b)(1)(A) unfair labor practice was committed. The attack is concentrated on the Board's finding that the union violated § 8(b)(4)(i) and (ii)(B), which provide that it shall be an unfair labor practice for a union or its agents:

"(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * * transport, or otherwise handle or work on any goods * * * or to perform any services; or

"(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is -

"(B) forcing or requiring any person to cease * * * handling, transporting, or otherwise dealing in the products of any other producer, * * * or to cease doing business with any other person * * *."

More particularly, the union contends that there is no evidence in the record showing that the men who accosted Royce were acting on behalf of the union, and that the union cannot, therefore, be charged with the responsibility for the incident. As to the North Penn occurrence, the union says that a refusal to handle goods is simply a form of economic coercion not involving the use of force or violence which must take place before a § 8(b)(4)(ii) violation can be found. As to the picketing, the union contends that in light of the fact that picketing has at all times been limited to the Riss terminal and directed against Riss only, the picketing is primary in nature and protected under the Moore Dry Dock doctrine previously enunciated by the Board.

Turning to the union's responsibility for the Royce incident, Royce testified that as he entered the Riss terminal a number of men whom he recognized as Riss drivers hailed him and asked what he was doing with a Riss trailer. After Royce said that he was delivering an empty Riss trailer to New Jersey, these same men informed him that they were on strike against Riss and ordered him to drop the trailer. The men proceeded to unhook the trailer while Royce was at a telephone calling the Salem dispatcher for further instructions. After giving a false destination, Royce drove back to the Pennsylvania Railroad yards where, while hooking up a Riss trailer, he was again approached by union pickets who unhitched his trailer and ordered him to leave and not to pick up anything with a Riss name on it. At the time these events occurred, Riss had already notified its drivers that Cartage would perform local pickup and delivery services as of January 1, 1960. The Board had before it evidence that on the day following the Royce incident, pickets representing the union appeared at the terminal and obstructed the ingress and egress of Salem trailers which were carrying Riss freight on interline. On that same day, pickets numbering from ten to twenty also blocked the egress and ingress of other trucks using the principal gate at the Riss terminal. These circumstantial facts, when coupled with Royce's recognition of some of the men as being Riss employees, leads irresistibly to the conclusion that the union, through its agents, was responsible for the Royce incident.

From an examination of the pertinent legislative history, we are convinced that § 8(b)(4)(ii)(B) prohibits economic sanctions against a secondary employer in the form of a refusal by a union which represents employees of both the primary and secondary employer to handle a primary employer's goods.

Section 8(b)(4)(ii)(B) was enacted as an amendment to the Act when the Labor Management Reporting and Disclosure Act of 1959 ("LMRDA"), 29 U.S.C. § 401 et seq., was passed. When the LMRDA left committee and was introduced in the Senate, it contained no provisions dealing with secondary boycotts.*fn2 Minority members of the committee criticized this fact and recommended that § 8(b)(4) be amended to make it applicable to conduct that would "threaten, coerce or restrain any person engaged in commerce * * *."*fn3 That is how the section now reads. Amendments to the Act were then offered on the floor of the Senate by Senator McClellan. Debate following introduction of the amendment indicates that its secondary boycott provisions were not restricted to the use of force or violence as a means of bringing pressure against the secondary employer, but included economic sanctions as well. Senator McClellan, who introduced the amendment, referred to it in debate, saying:

"Fourth, the amendment covers the withholding of prospective employees from a secondary employer . I refer to a case in which I may be handling the products of a given company or manufacturer, and I have an arrangement with a union whereby it furnishes employees to me when I call upon the union to furnish them. I refer to a case where I may be under a contract and under an obligation to use the facilities of a hiring hall to get my employees from the hiring hall. The union would say to me, 'We will not furnish you any ...

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