Brief for the Respondent in Opposition — Calmar Steamship Corp. v. Thompson

Opinions oS eoanesnsnneg noancBesenpesanscsie

- ariatietioa.... 1, eet eek |

Question presented............ ASE, ih ci see

Statute involved............... meee SSulddn ity aaa

Statement: | ok |

A. The Board’s findings of fact.......... te

B. The decisions below........--....---- ee

Argument............ ea de

Conclusion................... eee ee: ee eee

CITATIONS

Cases:

*. Communications Workers v. National La-

‘bor Relations Board, 362 U.S. 479........

International Brotherhood of Electrical

' Workers, Local 501 v. National Labor

_ Relations Board, 341 U.S. 694..............

International Brotherhood of Teamsters,

et al, and Overnite Transportation

Company, 130 NLRB-1007......:............. |

Local 74, United Brotherhood of Carpen-

ters v. National Labor Relations Board, ;

RR re renereeepue maemo Oa

- Local 1976, Carpenters v. National Lahor

Relations Board, 357 U.S. 93..............-.

Morgan v. United States, 304 U.S. 1...:....

National Labor Relations Board v. Brand-

man Iron Company, 281 F. 2d 797, re-

yersed, 368 U.S. BID... nnn eesti een .

II

Cases—Continued |

National Labor Relations Board v. Ex-

_ press Publishing Co., 312 U.S. 426........

Page

Natwnal Labor Relations ‘Board v. Local.

135, International. Brotherhood of

‘ Teamsters, 267 F. 2d 870, certiorari de- -

‘ nied, 361 U.S. 914.......... desig coamapiocons

"National Labor Relations Board vy. Local”

294, International Brotherhood of

' - Teamsters, 298 F. 2d 1065........................

National Labor Relations Board vy. Local

476, Plumbers, 280 F. 2d 441................

National Labor Relations Board v. Local

542, International Union of Operating

Engineers, 329 F. 2d 512........................

National Labor Relations Board v. Mac-

kay Radio & Telegraph Co., 304 U.S.

National Labor Relations Board v. Seven-

Up Bottling Co., 344 U.S. Ae

National Labor Relations Board vy.

Springfield .Bldg. & Construction

Trades Council, 262 F. 2d 494 ...............

National Labor Relations Board v. Truck

. Drivers & Helpers Local Union No. 728,

etc. (National Trucking Co.) (Ford.

Motor Co.), 228 F. 2d. 791, enforcing

i II ih ile sivtcemteres stinreepesnaceran aa

- National Labor Relations Board v. United

Brotherhood of Carpenters, 276 F. 2d

11,12

11

National Labor Relations Board v. United —

Brotherhood of Carpenters, 321 I. 2d

126, certiorari denied, 375 U.S. 953...

*\

u

il

Cases—Continued

National Labor Relations Board V. tfnited

Mine Workers, District 31; 198 F. 2d

389, certiorari denied, 344 U.S. a

Truck Diivers and Helpers Local Union

728, etc. v. National Labor Relations

Board (Campbell Coal Co.), 249 F. 2d

512, certiorari denied, 355 U.S. 958, en-

forcing AIG Nise BOGD...........<cccLccees..?

Truck Drivers and Helpers Local tinion

« No. 728, ete. (Empire State _ Express,

WOG.), BUG DOR GG nani cess

Truck Drivers and Helpers Local Union

. No. '728, etc. v. National Labor Rela-

tions Board (Genuine Parts Co.y, 265

F. 2d 439, certiorari denied, 361 U.S.

917, enforcing 119 NLRB 399......... ee

Statute: ’ ss

National Labor Relations Act, as amended -

(61 Stat. 136, 29 U.S.C. 151, et seq.):

_ Section 8(b) (4) (A) and (B)............

Page

10

20 ED meee

oy

=

2 ju the Supreme Court of the United States

OCTOBER TERM, 1964

No. 440 . @

TRUCK DRIVERS AND HELPERS LOCAL UNION No. 728,

AFFILIATED WITH INTERNATIONAL BROTHERHOOD .

OF TEAMSTERS, CHAUFFEURS, WAREHOUSEM®N

‘AND HELPERS OF AMERICA, PETITIONER

Vv .

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR. THE

FIFTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

a BOARD IN OPPOSITION

2

ae OPINIONS BELOW

The oc; inion of the court of appeals (Pet. 24-33)

is reporied at 332 F. 2d 693. The Board’s Decision

and Order are reported at 133° NLRB 62.

" JURISDICTION ©

The decree of the court of appeals was entered

on June 29, 1964 (Pet. 34-36): The petition for a

ae) |

2

writ of certiorari was filed on August 29, 1964. The

jurisdiction of this Court is invoked under 28 U. S.C...

1254(1).

QUESTION PRESENTED

Whether, in the circumstances of this case, the

Board was warranted in ordering the. union to cease

and desist from engaging:in ufilawful secondary boy-

cott activities not only against the -particular pri-

> mary employer ‘immediately involved, but —

other ateaeae employers as well. :

wt

STATUTE INVOLVED

The, pertinent provisions of the National Labor

Relations Act, as amended (61 Stat. 136, (29 U.S.C.

151, et seg.), in effect during the period here rele-

vant, are set forth at pages 3-4 of the petition.’

STATEMENT

A. The Board’s Findings of Fact

* Overnite Transporta‘ion Company (“Overnite”), a

large motor carrier of freight, has terminals and

other places of business in the States of Virginia,

North Carolina, South Carolina, and Georgia~ (R:

35-36, 44, 47).° In the early part of 1959, petitiorier

’ Section 8(b) (4) (A) and (B) of the 1947 Act, the pro-

visions’ invo'ved hére, were amended by the Labor-Manage-

mert Reporting and Disclosure Act of 195 (73 Stat. 519,

Pub, Law 86-257). The amendment does not affect the Boara’s °

order in this case. .

*“R.” refers to Volume I, Transcript of Record, filed in the

‘ court of appeals; “J.A.” refers to portions of the testimony

3

and. ( her affiliates the International Brotherhood

of Teamsters attempted ‘to organize Overnite’s em-

ployees (R. 47-48; J.A. 25-27). The union locals ‘in-

volved * held meetings at Atlanta, Georgia, and Char-

lotte, North Carolina, and, pursuant to an agreement

reached at the meeting, each local requested recog-

_nition as bargaining representative of Overnite’s e1:-

‘ ployees within the area of its jurisdiction (R. 48;

'J.A. 26-29, 37-39, 51, 113). When Overnite rejectea

these requests, the several locals called a strike in

May 1959 and picketed Overnite’s terminals (R. 47,

76; J.A. 46-47). The signs carried by the pickets |

‘nail Local 728 and the other Teamster locals as

the unions involved in the dispute (R. 76; J.A. 7-9,

40, 101). Local 728 had responsibility for the eon-

duct of the campaign in the State of Georgia and

picketed Overnite terminals at Savannah and Atlanta

(R. 76-77; J.A. 7-8, 47-50).'

Immediately .after the strike began, Local 728

wrote to all trucking companies with which it had.‘

labor agreements informing them about the strike

(R. 7; J.A. 9-11). These labor agreements contained .

a “hot cargo” provision which provided, inter alia,

that Local 728 and its members reserved the right to-

and the exhibits printed in a .joint appendix filed therein.

References preceding a semicolon are to the Buard’s findings ;

those fullowing are to che supporting evidence. ——

2 Local Union Nos. 71, 55 and 509, in addition to the peti-

tioner.

* This case involves the Unions’ acts in the State of Georgia.

A’ companion case dealt with their activity in inte Carolina

= n. 7, p. 7, infra).

a,

refuse to accept freight from, or to ps pick-ups or --

deliveries at, establishments. which ck or

picketed by a union (R..77; J.A. 106, 109. 110). The ©

clause further provided that a contracting employer’s

insistence upon handling such “‘unfgir” freight would

_be a sufficient. cause f6r an immediate strike of all

such employer’s operations (J.A. 106-107). Peti-

. tioner’s President, Cook, announced the start of the

Overnite strike at a union meeting and told the mem-

bers that they should use their own judgment as to’

whether they would handle Overnite freight - rg &

J.A;- 22-23, 52-53). !

During the strike, Local 728 on six different occa-

. sions induced the employees of eight neutral trucking

firms not to handle Overnite freight.

1.-A-member of Local 728 was requested By his

‘ employer, Atlanta-New Orleans Motor Freight Lines,

to handle some Overnite freight at the terminal of his

‘employer (R. 77-78; J.A. 16-17). When he called

President Cook of Local 728 for advice, the latter

told him, “I can’t tell you. anything. You do as you.

please. Yon don’t have to handle no scab. freight”

(RR. °%- 78; J.A. 17@8 _ Cook also assured him. that

he would be “prote ” if he did not handle the

freight (7bid.).

2. Petitioner and the other union locals involved

employed Oscar Evans, an organizer for Teamsters

Joint Council No. 9, to picket Overnite terminals.

> Under the OSM Act, a “hot cargo” clause was not itself

unlawful, but attempts to enforce it through work stoppages

were proscribed. See Rocal 1976, -Carpenters Vv. -National .

Lavor. Kelations Beard, 357 U.S. 98.

_

-

#

5

Evans asked several over-the-road drivers of. three

— trucking companies * ‘to respect the picket

_ line’ (R. 78-79; J.A.°29-32). Since these drivers

made no pick4yps or deliveries at Overhite terminals, -

they had no occasion to cross the picket line men-

tioned by the organizer (R. 78-79; J.A. 29-32, 35,

54-58). For that reason and in view of the hot cargo

clause of the labor agreements, the organizer’s re-

quest amounted to a réquest not to handle Overnite

freight generally (R. 78-79).

3. When an Overnite truck arrived at the terminal

of Georgia-Florida and Alabama Transportation

-Company, the shop steward of Local 728 told the

company’s foreman and one of its employees that

' the employees were not “supposed to handle Overnite

freight” (R. 79; J.A. €6, 74-75). The dock foreman

proceeded to handle the freight -himself, and. the

' other employees, members of Local 728, ceased work-

ing at 4 3 instruction of the ‘shop steward until the

foreman‘ nad finished . checking the Overnite ship-

ment (I. 79; J.A. 69-76).

4. At the terminai.of Benton Rapid Transit Com-

pany, petitioner’s shop steward, when asked by a

management renresentative whether he would handle °

_Overnite freight, replied that he would refuse (R.

79; J.A. 80-82). When some employees asked the

shop steward whether they™ should’ handle such

freight, he told them that under the “hot cargo”

clause of the contract they did not have to (R. 80;

— ® Associated Transport, Inc., Johnson ‘Transfer Company,

and Carolina Freight Carriers Corp.

6

' J.A: 81, 84-87). Subsequently one employee. refused

to handle Overnite cargo (ibid.). |

5. When an Overnite truck appeared at the ter-

minal of B.C. Transportation Company, ‘petitioner’s

‘shop steward told the employees of B. C. Transporta-

tion that he would not check Overnite freight. As a

result, the Overnite driver had to return the freight

to the, Overnite warehouse. (R. 80; J.A: 12-15, 53-

54.)

6. At the. ‘eeenbiia’ of Great Souter -Trucking

- Company, peiitioner’s steward, who' worked as a_

. driver for that employer, refused in the presence of.

other employees to move a trailer containing Overnite _

freight (R. 80; J.A. 79-80). When other drivers.

asked him what they should do about Overnite freight,

’ the shop steward told them to “use their own judg-

. ment” (ibid.). The steward testified at the Board. ;

hearing that it was not necessary for him to tell em-

ployees what he w ould do if he were asked to handle

Overnite freight, for “théy had already seen what

he would do” (ibid. ).

B. The Decisions Below

_ The Board concluded that, by the conduct described

abeve, petitioner and the other locals. involved in-

duced neutral employees not to handle Overnite

freight, for the objects of forcing their-employers to

cease doing business with Overnite and vf forcing

Overnite to recognize the Unions as the representa-

tives of its employees—in violation of Section’ 8(b)

(4)(A) and (B) of the Act (R. 74-87, 110-112).

The Board ordered petitioner and the other locals’ to.

cease and desist from inducing any individual em-

7 ;

ployed by any person engaged in commerce to engage

in a wofk stoppage with- the object of (1) forcing or

requiring any sueh person to cease doing busi-

ness with Overnite, or (2) forcing or requiring Over:

nite to recognize or bargain with the Unions unless

they shall have been certified by the Board: ‘(R. 113-

119).

In addition, insofar as petitioner Local 728 was

concerned, the Board order prohibited secondary pres-

sure against not only Overnite, but also against “any

other person engaged in commerce or in an industry

affecting commerce” (R. 116-117). The examiner .

had proposed such a broad order against. petitioner

‘(R. 90), and in a companion case (International

Brotherhood of Teamsters, et al. and Overnite Trans-

portation Company, 130 NLRB 1007; J.A. 190-200)’

the Board explained the reason for the order. In

that decision, which was expressly incorporated in

7 In that case, the Board found that Local 728 and the o' 1er

locals violated Section 8(b) (4) (A) and (B) of the‘Act, w en,

in furtherance of the same dispute with Overnite, they

picketed the terminals of 18 neutral: motor carriers doing

business with Overnite in the State of North Carolina. In the

instant case, involving the Unions’ activity in Georgia, a mo-

tion was made to dismiss the complaint on the ground. that

-the Board had improperly split the cause of action by failing

to consolidate the Georgia case with the Carolina case; the

Board denied this motion (R, 64-69, 112), its action was sus-

tained by the court of appeals (Pet. 31-32), and petitioner

does not challenge these rulings here. Local 728 petitioned to

review the Carolina. case in the Court of Appeals for the

District of Columbia Circuit, and, after that court remanded

the case to the Board for reconsideration, the Board dismissed ©

it ori the ground, inter alia, that, in view of the order issued

against Local 728 in the instant case, no useful purpose would

be served in continuing the Carolina case (J.A. 238-239).

G . ? 4

8:

the instant decision (R.. 75-76, 85) the Board stated

. NLRB at 1009- 1010; J.A. .194-195) :

‘The Order against Respondent Local 728 * * *

will cover any future unlawful secondary boycott -

activity respecting any other primary person en-

gaged in commerce or .in an industry affecting

‘ commerce. A broad cease-and-desist order of this.

type against Local 728 appears necessary in

order to effectuate the policies of the Act, be-

cause of the extent: to which Local 728 had dem-

onstrated a proclivity to violate the Act hy sec-.

ondary boycott activity against persons with

whom it develops disputes. In addition to the

instant case, involving as it does 18 secondary

employers, there have been in recent times four

other contested secondary boycott cases in which

it has been -necessary for the Board to issue

orders against Local 728, and in-which Local 728

has been found to have. engaged i in deliberate and

extensive unlawful secondary activity in aid of

its disputes*.“*. * * This record of .persistent -

- and repeated violations by Local 728 indicates

the necessity of a broad order against it to pre- °

.verit it from continuing, with impunity, to vio-

*The Board listed the following cases: “Truck

Drivers and Helpers Local Union No. 728,. etc. V.

N.L.R.B. (Genuine Parts Co.), 265 F. 2d 439. (C.A.

. 5), cert. ‘denied, 361. U.S. 917, enfg. 119 NLRB

- 399; Truck Drivers and Helpers Local Union 728, etc. V.

N.L.R.B. (Campbell Coal Co.), 249 F. 2d 512 (C.A.

D.C.), cert. denied 355 U.S. 958, enfg. 116 NLRB 1020;

N.L.R.B. v. Truck Drivers & Helvers Locai Union .No..

728, etc. (National Trucking Co.) (Ford. Motor Co.),

228 F. 2d 791 (C.A. 5), enfg. 111. NLRB 483; Truck

Drivers and Helpers Locai Union No. 728, etc. (Empire

State Express, Inc.), 116 NLRB 615.” |

a, :

9

late “ny secondary boyeott sections of the Act,

‘free from restraint of prior orders more narrow

in. scope. ;

The court of appeals sustained é Board’s findings ©

and enforced its order in full (Pet. 24-33).

-¢ | ARGUMENT

Petitioner does not here attack the findings of. the

Board, approved by the court below, that it violated

the secondary. boycott provisions of the. Act. Its sole

contention is that the Board’s order is too broad be-

cause it requires Local 728 to cease and desist from

secondary activities prohibited by Section 8(b)(4)

of the Act not only in connection with its dispute

with Overnite, but also in connéction with disputes with

any other primary employer. In the circumstances of

this case such an order was well within the Board's

remedial power, and the Board followed proper pro- .

cedures in entering it. The Board’s decision is not in

conflict with the decisions of this Court or of ‘any

court of appeals. No further review is warranted.

1. It is settled that the Board may enjoin not only.

‘ the particular unfair labor practice found, but also

like-and related acts which may be anticipated from

the wrongdoer’s past misconduct. National Labor

Relations Board v. Express Publishing Co., 312 US.

426, 437; International. Brotherhood of Electrical

Workers, Local 501 v. National Labor Relations

Board, 341°-U.S. 694, 705-706; Locai 74, United

Brotherhood of Carpénters v. National Labor Rela-:

tions Board, 341 U.S. 707, 715; see, also, Communica-

se

s

10

e

tions Workers v. National Labor Relations Board,

362 U.S. 479, 480-481. While in the case of the other

locals the Board Kmited its prohibition of unlawful

secondary boycott activities to those arising out of the

dispute with Overnite, it found that a broad order

against petitioner was “necessary * * * because of the

extent to which Local 728 had demonstrated a proc-

livity to violate the Act by secondary boycott activity

against persons with whom it develops disputes” (pp..

8-9, supra). This conclusion was fully justified. As

the court below pointed out (Pet. 32-33), in “ad-

dition to the facts of this case which resulted in a °

finding by the Board that Local 728 pursued an over-

all plan according to which the employees of eight

separate neutral employers were induced to refuse to

‘ handle Overnite shipments, the Board had other

eases involving this Local,’ which indicated that it

~ had engaged in similar secondary boycott activity in

furtherance of disputes with other primary employers

(see n. 8, p. 8, supra). Such a history of similar vio

lations of the Act affords a sufficient. basis for an or;

der barring the union from engaging in illegal activity

with respect ‘to’ not only the employer immediately’

involved, but other employers as well. See National,

Labor. Relations-.Board. v._Local 294, International

'” Brotherhood of Teamsters, 298 F.2d 105, 108, n. 2

(C.A. 2); National Labor Pelations Board v. Local

542, International Union of Operating Engineers, 329

F, 2d 512, 515-516 (C.A. 3); National Labor. Rela-

tions Board v. United Mine Workers, District 31, 198

F. 2d 389, 390-391 (C.A. 4), certiorari denied, 344

U.S. 884; National Labor Relations Board v.* Local

a

. . : a

135, Internaticnal Brotherhood of Tedmsters; 267 F.

2d 870, 874 (C.A. 7).. certiorari denied, 361 U.S.

914; National Labor Relations Board Vv. United Broth-

erheod of Carpenters, 321 F. 2d 126, 129-130 (C.A.

9), certiorari denied, 375 U.S. 953." Ne? De

2. Theré is no conftietrof decisions. The cases re-

lied: on by petitioner (Pet. 10, 13-15) are distinguish-

able on their facts. Thus, in National Labor Rela-

tions Board v. Local 476, Plumbers, 280 F, 2d 441,

the First Circuit refused to enforce a broad order

because, unlike here, there was insufficient basis for

concluding that the union ‘was. likely to engage in

similar conduct against other employees (p. 443). Cf.

National Labor Relations Board \. Springfield Bldg.

‘& Construction Trades Council, 262 F. 2d 494, 498-

- 499 (C.A.1}. Similarly, in National Labor Relations

Board Vv. United Brotherhood of Carpenters, 276 F.

2d 694, the Seventh Circuit refused to sustain a broad

order because there, unlike here and in its earlier de-

cision in Local 135, supra, there was no showing of

.prior violation by the union (p. 698)." anaes the

* Petitioner's claim (Pet. 15-2 1), thet the prior violations

committed by it were not so serious as to justify the issuance

of a broad order does not require a different conclusion. This

-was_a_judgment for the Board to make, ‘and where, as: here,

- that: judgment is not- patently unreasonable, it will not be

disturbed by the reviewing court. See National Laboi Rela-

tions Board v. ‘Seren-Up Bottling Co.. 344 U.S. 344, 348-319.

ed In Natéoual Labor Relations Board V. Brandman Iron.

. Company, (cited erroneously’as Grandman Allen Co., Pet. 10,

14), 281 F. 2d 797, the Sixth Circuit did refuse to enforce a

broad order despite the fact that the parties had consented

to the entry of such an order. However, that decision was

reversed by this Court, 368 U.S. 399.

12

fact that the Fifth Circuit refused to enforce = broad

order against Local 728 in an earlier case (Pet. 14)

merely shows that, as of that date, there was not

sufficient evidence of repeated: violations to justify.

such an order; Local 728’s repetition. of the same il-

legal conduct ‘in this case demonstrates that there is

now such evidence. | -

3. The elaim that the Board abridged petitioner’s |

_ constititional rights, by failing to give it the “right

to introduce evidence and to be heard on” the issue .

whether a broad order should be entered (Pet. 12),

_is insubstantial. In “devising a remedy the Board is

not confined to the record of a particular proceeding,”

but may raw upon its cumulative experience (Na-

tional Labor Relations’ Board v. Seven-Up Bottling

Co., 344 U.S. 344, 348-349), and this of “course in-

cludes its own record of a party’s prior violations.

Here the Board’s judgment that a broad order. was

necessary rested ir, large. part on the fact that Local ~

728 violated the sezondary boycett provisions of the Act

on previous occasions. There was no need for a hearing .

to determine whether such violations had occurred ;

they were a thatver of public reeord and were not *

subject to relitigation. Insofar as petitioner contend-

' ed that the prior violations did not justify a broad or-

der in the present case (see Pet. 15-22), this involved .

no question of fact, but,.at best, only a legal issue; and

petitioner had full opportunity to, and in fact did,

present its legal argument to_the Board in its excep-

tions to the Trial Examiner’s recommended order (R.

99, 107-109). Moreover, since the order recommended

by the Triai Examiner was the same as that later

* Se

* adopted by the Board (R. 85-86, 90-92, 96-98), “the

issues and contentions of the parties were clearly de-

fined” National Labor Relations Board v. Mackay

Radio & Telegraph Co., 304 U.S. 333, 350-351, before

the Board issued its order, and petitioner thus had “a

-. reasonable opportunity to know the claims of the op-_

posing party and to meet them:” Morgan v. United

' States, 304_U.S. I, 18. :

CONCLUSION |

ee ml

~ For the foregoing reasons, the ition for a writ

of certiorari should be denied. |

Respectf ully submitted,

ARCHIBALD Cox,

Solicitor General. < GC

Pa %

s

ff +

ARNOLD ORDMAN, ‘

General Counsel , ry

DOMINICK L. MANOLI,

Associate General Counsel,

-NoRTON.J. COME, .

Assistant General Counsel,

Hans J, LEHMANN,

: Attorney,

National Labor Relations Board.

SEPTEMBER 1964. é iY

ovo S&S GCOVERNMEAT PRINTING OFFICE, 1964 745155 258