Petition for Writ of Certiorari — Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers v. Lucas Flour Co.

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Oftice-Supreme Court, U.S:

: FILED

FEB 11 196]

LIBRARY

co. rc JRT. U. & [amas BR BROWNING, Clerk

a

IN THE

Supreme Court of the United States

October Term, 1967

LOCAL 174, TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN & HELPERS OF AMERICA,

an unincorporated Association,

Petitioner,

2

vw.

LUCAS FLOUR COMPANY, a Washington corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

THE SUPREME COURT OF THE

STATE OF WASHINGTON

PETITION FOR WRIT OF CERTIORARI

Of Counsel

MacDonald, Hoague & Bayless FRANCIS HOAGUE

320 Alaska Building 320 Alaska Building

Seattle 4, Washington Z Seattle 4, Washington

Counsel for Petitioner

———

EE we tRoro. ivan press AND WESTERN

i

SUBJECT INDEX

Page

Citations to Opinions Below.............:-:2:::.110-..0000-00--00- nee

Grounds Upon Which Jurisdiction Is Invoked................ 2

aU II fancies cccnncpasennsigeesoccgcencn 2

A. Federal pre-emption as against tort action............ 3°

B. Va ae ee 3

Statutory Provisions Involved ...c.c-sc-scceocvcesscceeeeeeneee 4

PU i oes ie seme 4

Fa RN ect ORI ev POTTS SEED 4

B. How Federal questions were presented ................ 8

Reasons for Granting Petition 0.2... 9

i NCEE NCES ER OPI RO =n 9

A. The conclusions reached by the Washington

Supreme Court regarding pre-emption are

contrary to the decision of this Court

in San Diego Building Trades Council v.

B. By characterizing the protected or prohibited

™“_ . activity as a vio of a contractual right,

as in this case, state Courts can circumvent

the exclusive initial jurisdiction of the Na-

tional Labor Relations Board in most situa-

TE Wins ae 138

* A. The opinion below is in direct conflict with

the decision of this Court in Textile Workers

Union v. Lincoln Mills ...0.....02......0...cecccceseeceee 13

ii

Page

B. The judgment below enforces local contract

law that is incompatible with §301 of the >»

Taft-Hartley Act and that has therefore been

pre-empted by that act ..................-cesceccessessee: 14

C. The decision below, in direct conflict with

principles followed in decisions of at least

three Circuit Courts of A regarding the

§301 no-strike issue, holds that it is a con-

tract violation for a union to strike, even

pr the union never agreed either ex-

press

III. This Strike Was Not a Violation of This Col-

lective Bargaining Agreement Within the Mean-

ing of §301 eeses B ccceacaconsquonscsocsnens : ec

A. No intent to prohibit strike against a dis-

charge of a union member appears in this

B. The purposes of the Taft-Hartley Act dictate

that strike prohibitions, unless #ktended,

should not be imported to a contract merely

because momentarily convenient .................. 18

IV. Widespread Importance to Industries and

Unions of the Issues Determined in Decision

Below ........ PRESENCE OC rm Soe 19

A. If the decision below as to pre-emption is

allowed to stand, it will.bring about lack of

uniformity to most interstate labor cases...... 19

B. For certainty in existing labor-agreemen nts,

and in those to be negotiated;it is essential

that the contract and pre-emption questions

here in issue be resolved.............22....0.-..-c0000--. 21

Page

C. The protection afforded emp by §7 of

the Taft-Hartley Act will be ae ents re-

duced, should the decision below stand........ 22

Conclusion oe SEAR SE SS ey ORL EDO 22

Appendices: :

Appendix A. Opinion of Washington

om: Supreme Court ....................- App. p. 1

Appendix B. Judgment of the Washington

Supreme Court ............ seeeaeag App. p. 12

Appendix C. Pertinent Sections of the

. Taft-Hartley Act ................. -App. p. 18

Appendix D. Private Carrier Agreement......App. p. 16

TABLE OF CASES

v. Teamsters C. & H. Union,

U. S. 485, 98 L.ed. 228, 74 S. Ct. 161 (1953)....14-15

International Association of Machinisis v. Gonzales,

356 U. S. 617, Sing (Me) 1018, 17 S.Ct. 923 (1958) 12

International Union, U. M. W. of A. o. N. L. R. B.,

257 F.(2d) 211 (App. D. C. 1958) q...ccccsceoreennee 11

Lewis v. Benedict Coal Corp., 259 F.(2d) 346 (CCA 6,

1958), aff'd 361 U. S. 459, 4 L.ed.(2d) 442, 80 S. Ct.

te 16

A ALLL” LL NOTE:

_ ” .

/ Page

Local 774, I. A. M. v. Cessna Aircraft Co.,

185 Kans. 183, 341 P.(2d) 989 (1959)........................ 13

Local 9735, U. M. W. o. N. L. R. B., 258 F.(2d) 146

Lm TI sii scisetesenniteins dae isnot ll

San Diego Trades Council vc. Garmon, 359

U. S. 936, $ L.ed.(2d) 775, 79 S. Ct. 773 (1959)....7-11

Selles v. Local 174, I. B. T., 50 Wn.(2d) 660, 314 P.

(2d) 456 (1957) cert. den. 356 U. S. 975, 2 L.ed.

(2d) 1140, 78 S. Ct. 1134 (1958) eee ecceececeeseseesene 12

Textile Workers Union v. Lincoln Mills, 353 U. S. 448,

1 Led.(2d) 972, 77 S. Ct. 912 (1957) ener 13, 14

U. A. W. v. Russell, 356 U. S. 634, 2 L.ed.(2d) 1030,

y $B ___. Bane ay NER aire Eres ates nore 12

United Construction Workers v. Haislip Baking Co.,

223 F.(2d) 872 ee 350

U. S. 347 Se wiaecchdtnnttcnsesveesstbtbemie 16

U. M.W.A.v.N.L.R.B., SL F (98) M1,

OS SRR Sek Seema 16, 17

United Mine Workers of America and Boone County

Coal Corp., 117 N. L. R. B. 1095 (1957)...................... 11

United Mine Workers Union and Westmoreland Coal

Company, 117 N. L. R. B. 1072 (1957) <.sscc-ssso.-00.-- ul

United States Steel Corp. v. Nichols, 229 F.(2d) 396,

899, 56 ALR (2d) 980, (CCA 6, 1956); cert. den. 351

U. S. 950, 100 L.ed. 1474, 76 S. Ct. 846.00. 19

Weber v. Anheuser-Busch, 348 U. S. 468, 99 L.ed. 546,

3 s_. eI aC ae 16

r

v

Page

TABLE OF STATUTES

28 U.S.C. Sec. 1257 (3), 62 Stat. 929............-.......-00-- 2

29 U.S.C. Sec. 157, 158, 185, 61 Stat. 140, 143, 156,

157; §§7, 8 and 301 of Taft-Hartley Act...................... 2

TEXTBOOKS AND REPORTS

9 Labor Law Journal 406 (1958) _...............---sesseceesesoees 11

Labor Relations Reference Manual, Vol. 32, p. 6.......... 18

Labor Relations Reporter LRX 87, Section 14................ 18

57 Mich. L. R. 807, 825; Feinsinger, The National

Labor Relations Act and Collective Bargaining.......... 11

Sen. Minority Report 105, Part 2, 80th Cong., Ist Sess.

Gite ee 17

Sen. Rep. 105, Part 1, 80th Cong., Ist Sess. (1947)

BR EPID ccipeninecsspsnsinsstnsiasesinonmncnsintesginenssionnestnshttanandaitii 17

IN THE

Supreme Court of the United States

October Term, 1960

Di cccaisciiteckansadchacka

LOCAL 174, TEAMSTERS, CHAUFFEURS, WARE-

HOUSEMEN & HELPERS OF AMERICA,

an unincorporated Association,

Petitioner,

‘@,

LUCAS FLOUR COMPANY, a Washington corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE EME COURT OF THE

STATE OF WASHINGTON

PETITION FOR WRIT OF CERTIORARI

Local 174, Teamsters, Chauffeurs, Warehousemen &

Helpers of America, prays that a Writ of Certiorari issue

to review the judgment of the Washington Supreme Court

entered in the above-entitled case on November 15, 1960.

CITATIONS TO OPINIONS BELOW

The memorandum opinions of thé Superior Court of

the State of Washington for King County are unreported

and are set forth in the certified record (T. 89-55, 98-101 )'.

The opinion of the Washington Supreme Court is reported

'The references tu the certified transcript of record will be referred

to as T. The page references to the verbatim transcript of the testi-

mony at the trial (called Statement of Facts by Washington rule) will

be referred to as St.

2 aah

in 156 Wash. Dec. 985, 356 P.(2d) 1, and is in the certi-

fied record (T. 126-133), and in Appendix A hereto.

JURISDICTION

The judgment of the Supreme Court of Washington

was entered on November 15, 1960 (T. 134, Appendix

B). The jurisdiction of this court is invoked under 28

U.S.C. Sec. 1257 (8), since the rights, privileges and

immunities specially set up and claimed under 29 U.S.C.

Sec. 157, 158 and 185 have been denied.

QUESTIONS PRESENTED

Respondent conducts a flour brokerage business ad-

mittedly affecting interstate commerce. Petitioner union

struck and maintained a one-man picket at respondent's

warehouse for eight days in protest against the discharge

of a union member employed by respondent. Some months

thereafter it was determined retroactively by arbitration

that the employee’s work had been unsatisfactory and

that such unsatisfactory work had been the reason for

his discharge. The collective bargaining agreement be-

tween petitioner and respondent did not contain a no-

strike clause applicable to this situation but did provide:

“The Employer res the right to discharge an

man in his employ if his natn not satisfactory.

~

Neither party at anv time applied to the National Labor

Relations Board for relief in connection with this strike.

The questions presented are:

2The contract is set out in full in’ Appendix D heréto.

-

$

A. Federal pre-emption as against tort action.

(1) Did the Washington Supreme Court's determina-

tion that this strike was neither protected by §7 nor pro-

hibited by §8 of the Taft-Hartley Act’ justify its assump-

tion of jurisdiction of this action in the absence of any

such determination by the National Labor Relations

Board? : ,

(2) Except for a suit under §301 of the Act, does not

the National Labor Relations Board have exclusive r. imary

jurisdiction to determine whether this labor agreement

removed this strike from the protection of §7 or the pro-

hibitions of §8 of the Taft-Hartley Act?

(3) Was not this strike, in protest against the employ-

er's firing of a union member, an activity which is argu-

ably protected by §7 or prohibited by §8 of the Taft-

Hartley Act? j

(4) May the State Court award damages in tort for

injury caused by this strike in the absence of an initial -

determination by the National Labor Relations Board

that the strike is neither a protected nor a prohibited

activity under the Taft-Hartley Act?

B. Violation of Contract.

(5) In the absence of an express or implied no-strike

agreement, can this strike constitute a violation of-a col-

lective bargaining agreement under §301 of the Taft-

Hartley Act?

(6) If the strike was not a violation of contract under

361 Stat 136-158, 29 U.S.C. Secs. 141-187.

\ 4 ;

* $301, did the State Court have. jurisdiction to award

damages for breach of contract under incompatible State

doctrines of contract law?

(7) In the jabsence of an express or implied no-strike

agreement, is not a strike in protest against the employer's

discharge of / a unidf member an activity protected by

§7 of the Taft-Hartley Act?

(8) Has-§301 pf the Taft-Hartley Act supplanted in-

compatible ‘substantive law of the State of Washington

as to what conduct constitutes. a breach of a collective

bargaining agreement in an industry affecting interstate

(9) Was it a violation of this contract (within the

a ee

of a union member who had been dis-

hi seasailibthciry sesdk: hams on Ges tne Of the

strike the union, on reasonable grounds, contended that

ee

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are those included

in the Labor-Management Relations Act of 1947, as

amended, (61 Stat 196-158, 29 U.S.C. Secs. 141-187)

herein and commonly called the “Taft-Hartley Act.” Per-

tinent sections of the Act are’ reproduced in Appendix C

hereto. “

STATEMENT OF THE CASE

A. Facts.

The respondent is a corporation engaged in the whole-

5

sale distribution of flour with its principal place of busi-

ness and warehouse located at Seattle, Washington. Re-

spondent purchases annually approximately $400,000.00

worth of flour and similar products from outside the State

of Washington, representing approximately 60 ‘per cent of

respondent's total annual purchases (St. 14-18). At all ©

pertinent times the respondent employed their truckers

and warehousemen only from the ;membership of the

petitioner, Local 174 (St. 184). Respondent had a collec-

tive bargaining agreement effective from and after April

1, 1955 containing among other things the following pro-

vision: (Exhibit 1, Appendix C, p. 17).

“ARTICLE II

The em loyer reserves the right to discharge ‘any

man in semmploy - his work.is not satisfactory.”

On May 12, 1958, “Tack” Welsch, a member of Local —

174 and an employee of respondent for over five years -

(St. 158), had an accident as a result of which he stayed -

at home under doctor's care for two weeks (St. 161).

When he was ready. to return to work, respondent told

him to take that week off and if they were busy the next

week they would call him (St. 163, Exhibit 13). That

same day the union business agent unsuccessfully pro-

tested this lay-off over the phone to the respondent (St.

135-137, 183). The next morning, May 27, 1958, petitioner

sent a, business agent with Welsch to the respondent's

plant to “see what the problem was” (St. 138-139, 164,

‘ 174). Respondent's representative opened the meeting by

stating that Welsch was discharged for unsatisfactory

\

™

6

work (St. 174, 165). This was the first indication by the

respondent to either Welsch or a )) representative

that respondent was contemplating discharging Welsch

(T. 46-47, St. 137, 164). Within a short time thereafter,

a one-man picket (St. 142, R.42) was established at re-

spondent’s plant and the employees went out on strike

(St. 189-140, 56). The strike continued for eight days

after. which it was terminated pursuant to a temporary

injunction issued in this action (T. 6). /

As to the cause of the strike, the trial court stated (T.

47, and see Exhibit 12, p.7): —

“The employer was undecisive in its attitude toward

Neither party sought the assistance of the National

Labor Relations Board at any time. After the issuance

of the injunction on June 4, 1958, the parties agreed to

arbitrate the issue of Welsch’s discharge (St. 9-10, T.

6, Exhibit 11) and on November 7, 1958 some five

months after the strike, the arbitrators rendered their de-

‘

EERIE

7

cision that Welsch’s work had been unsatisfactory, that

this unsatisfactory work was the reason for his discharge

on May 27, and that he was not entitled to reinstatement

with the respondent (Exhibit 12).

After trial, the Court granted judgment for the plaintiff

in the sum of $6,501.60, based on the legal conclusion

that “The defendant's picketing of plaintiff's premises was

illegal and coercive.” (T. 117-119). On appeal by the

union, the Washington Supreme Court ‘affirmed the judg-

ment on two totally different theories; first, in tort, that

the strike was an attempt to force the respondent to forego

the exercise of a right expressly provided by the agree-~

ment, and secondly, in contract, that even though a no-

strike provision could not be implied from the agreement,

the strike nevertheless constituted a violation of the con-

tract. The Court dismissed from consideration §301 of

the Taft-Hartley Act on the ground that §301 was solely

a jurisdictional provision and did not affect the substantive

law to be applied to the enforcement of contracts.

The Court dismissed the pre-emption argument with

a determination that the strike and picketing did not fall

within the protection of §7 or the prohibition of §8 of

the Taft-Hartley Act. This Court's decision in San Diego

Building Trades Council v. Garmon‘ was distinguished

on the ground that “in that case [Garmon] the cause had ~

proceeded through the courts on the assumption that it

was an unfair labor practice.”

‘San Diego Building Trades Council v. Garmon, 359 U.S. 236, "3 Led.

(2d) 776, 79 S.C.7 773 (1959)

& - — — SR, Reni a

PRS

, 8

B. How Federal questions were presented.

Lack of State court jurisdiction by reason of the Taft-

Hartley pre-emption was raised at the outset of the trial

by Defendant's Memorandum of Authorities, Point IV

(R. 35-37). After trial and before judgment, defendant

filed a Motion for Dismissal Notwithstanding Court's Mem-

orandum Decision challenging the Court's jurisdiction on

the basis of the Garmon decision which had just been

handed down (T. 102). After argument and further briefs,

the Court denied this motion (R. 120). The pre-emption

issue was argued to the State Supreme Court in Petitioner's

Opening -Brief (T. 128, pp. 12-26) and in Petitioner's

Reply Brief (T. 125, pp. 5-10).

Although respondent argued to the trial court that the

strike was a breach of contract (T. 62-64), the trial court

imposed liability on a tort basis and appeared to ignore

the breach of contract aspect (T. 117). Respondent's first

reference to or mention of §301 of the Taft-Hartley Act

was in its brief to the Washington Supreme Court (T.

124, pp. 27-29). Petitioner in its Reply Brief argued that —

§301 established substantive federal law and that respond-

ent must sustain his contract action, if at all, under §301

rather than local common law (T. 125, pp. 13-15). We

then argued that the strike was not a violation of contract

within the meaning of §301 (T. 125, pp. 15-21) and

cited federal decisions and the legislative history of §301

to this point.

In its opinion, the State Supreme Court discussed the

9

pre-emption questions and the breach of contract ques-

tions, deciding (a) that Taft-Hartley pre-emption did not

apply to this action, (b) that §301 did not affect the sub-_

stantive contract law to be applied, and (c) that the strike

was a contract violation even though no promise not to

strike could be implied from the labor contract. All issues

raised in this Petition were specifically presented in the

briefs to the Washington Supreme Court and were dis-

cussed in that Court's opinion and decided adversely to

petitioner. |

REASONS FOR GRANTING PETITION

I. PRE-EMPTION

A. The conclusio 1s r- ached by the Washington Supreme

~ Court regarding pre-emption are directly contrary

to the decision of this Court in San Diego Building

Trades Council v. Garmon.°

The Washington Supreme Court, focusing on only a

portion of the Garmon opinion,’ indicates in the opinion

below that Taft-Hartley pre-emption cannot be invoked

' against state jurisdiction except where the State Court

finds that the case is one yin which it is clear [or] in

which it may be fairly assumed that the activity is pro-

tected by §7 or prohibited by §8 of the national labor

relations act (sic).” (T. 128-129, Appendix A, p. 4).

The opinion then quotes a portion of those two sections

(omitting §8(d)) and finds. that since the strike and the

picketing in this case did not fall within the protection

5San Diego Building Trades Council v. Garmon, 359 U.S. 236, 3 L.ed.

42d) 775, 79 S.Ct. 773 (1959)

~

T/

10

or prohibitions of these two sections, the State Court

prtigety took farodigtion of the action: It fe subestnd

that this is an invetsion of the jurisdictional standards

set forth in San Diego Building Trades Council v. Garmon.

In the Garmon case this Court made it clear that if

the union's activity is “arguably” or “potentially” subject

to either §7 or §8 of the Taft-Hartley Act, state jurisdic-

tion must yield to the National Labor Relations Board,

at least until that Board has determined that the Act does

not apply to the activities involved. In the instant case,

a union's strike and picketing to reinstate a discharged

member to his former job appears prima fa..z to be a

protected union activity. The only doubt cast on this pro-

tection is a term of the collective bargaining contract

which reserves to the employer the right to discharge an

employee for unsatisfactory work. It is submitted that,

except to the extent that §301 of the Act gives courts

jurisdiction, the legal impact of this contract provision

of the factual complex to the contract were matters to

be determined initially by the National Labor Relations

Board. .

If on the one hand the Board should determine that

the contract does not prohibit such a strike, then the

strike is an activity protected by the Taft-Hartley Act and

cannot be made the subject of a state court ‘suit. If on

the other hand the Board should determine that the con-

tract implied a promise not to strike for the purposes and

in the manner done here, then the question arises as to

11

whether this economic strike constituted a union unfair

labor practice pursuant to §8(b)(3) as defined in §8(d)

(4) of the Act, in that it would be viewed as an effort

to terminate or modify the contract without complying

with the requisite waiting period and notices. The Board

has taken the position that an economic strike in the

face of a no-strike agreement is an unfair labor practice

under §8(b)(3) and §8(d). United Mine Workers Union

and Westmoreland Coal Company, 117 N.L.R.B. 1072

(1957); United Mine W. of America and Boone

County Coal Corp., 117 N.L.R.B: 1095 (1957), and see

9 Labor Law Journal 406 (1958). In either view of the

contract, it is for the Board, not the court, to make the

initial jurisdictional decisions, both factual and legal.

It was stated ipthe Garmon case that in the absence

of such a determination by the Board or of compelling

precedent applied to essentially undisputed facts, it is

not for the courts té decide whether the union's activi-

ties are subject to state jurisdiction. No compelling prece-

_dent existed to take the instant case out of the purview

of §7 and §8 of the Act, and the facts as to the motiya-

tion for and the context of the strike were definitely dis-

puted. The Court therefore shoul? have deferred to the

jurisdiction of the Board.

“Enforcement of both of these decisions was denied by the Court of

Appeals of the District of Columbia by a decision divided two to one.

Local 9735 UMW. v. NLRB. 258 F.(2d) 146 (App. D.C. 1958) ;

International Union, U.M.W. of A.v. N.L.R.B., 257 F.(2d) 211 (App.

D.C. 1958). It is submitted that until this matter is settled finally. the

Board's position on this point is at least arguably correct. Cf. Fein-

8 . the National Labor Relations Act and Collective Bargaining.

57 Mich. L.R. 807, 825.

“

12 ~

To permit state courts to make the basic factual and

legal determinations necessary to give them jurisdiction

over strikes and picket lines, as held by the court below,

would frustrate national labor policy and would thwart

uniformity of treatment. This case does not involve mat-

U.S. 617, 2 L.ed.(2d) 1018, 78 S.Ct. 923 (1958); U.A.W.

o. Russell, 356 U.S. 684, 2 L.ed.(2d) 1030, 78 S.Ct. 982

(1958); or Selles v. Local 174, 1.B.T., 530 Wn.(2d) 660,

314 P.(2d) 456 (1957) cert. $56 U.S. 975, 2 Led.

(2d) 1149, 78 S.Ct. 1184 (1056). This case concerns a

strike axd a one-man picket established by a union against

an on behalf of one of its members—a situation

at the center of the area of labor relations intended

13

the Taft-Hartley Act. If such judicial reasoning is per.

mitted to stand, the Board’s exclusive jurisdiction to deter-

mine Whether union activities are protected or prohibited

by the Taft-Hartley Act can easily be defeated in situ-

ations where the parties are covered by a collective bar-

gaining agreement, because as more and more industries

enter into labor agreements, and as such agreements deal

in greater and greater detail with employer-employee re-

lations, the more completely will the Board's authority

over labor relations be displaced by court control. It is

“not to be presumed that Congress intended its structure

for enforcing national labor policy should be so easily

frustrated, Local 774, 1.A.M. v. Cessna Aircraft Co., 185

Kans. 183, 341 P.(2d) 989 (1959). -

If. VIOLATION OF CONTRACT ‘

A. The opinion below is in direct conflict with the

decision of this Court in Textile Workers Union v.

Lincoln

Mills.

The opinion below states:

“Section 301 of the labor t relations act

confers jurisdiction upon lower courts to en-

tertain suits based upon violations of labor

ments. We find nothing in the plain this

statute which can reasonably be ‘ag

empting state jurisdiction, or as affecting it

iting the substantive law to be applied. ( Appendix

This statement stands squarely contrary to the holding

whereby this Court definitely and finally decided that

$301 established a substantive body of federal labor law

l4

for enforcement of labor agreements. Textile Workers

Union v. Lincoln Mills, 353 U.S. 448, 1 L.ed(2d) 972, 77

S.Ct. 912 (1957). In that case this Court stated with

_ Yeference to suits under §301 (a):

“Federal interpretation of federal-law will govern,

not state law. But state law, if compatible with the

ie ya of §301, may be resorfeff to in order to

the rule that will best effectuate federal policy.

Any state law applied, however, will not be ‘an in-

dependent source of private rights.” p. 456.

a fe

We cited and specifically discussed the Lincoln Mills

decision to the court below, but the court appears to

have ignored it. Haying’ thus too éasily disposed of

§301, the court below was free to ignore any federal

court precedents cited to them on the substantive law of

labor contract violations as well as to ignore the Legis-

lative history of §301. The judgment below was not based

on $301, but on local tort and contract law.

B. The judgment below enforces local contract law-that

ie incompatible with $301 of the Taft-Hartley Act -

and that has therefore been preempted by that act. © _

Pre-emption of local law by §301 would appear to be -

a necessary logical consequence of the doctrines con-

tained in the Lincoln Mills decision and Garner v. Team-

sters, C. & H. Union, 346 U.S. 485, 98 L.ed. 228,° 74

S.Ct. 161 (1953). In the Garner case the Court stated:

“The detailed iption of-a- procedure for re-

straint of specified types of picketing would seem to

imply that other picketing is to be free of other

methods and sources of restraint. For the policy of

15

the National Labor ee Act is not to condemn

all ee. but only that ascertained by its pre-

scribed processes to “ral within its prohibitions.

wise it is implicit.in the Act that the public dadeoeat

is served by freedom of labor to use the weapon

of picketing. For a state to impinge on the area of

labor combat desi to be free is quite as much

an obstruction of federal policy as if the state were

to declare SETI. g free for purposes or by methods |

which: the

It would seem, therefore, that this strike was either a

violation of a collective bargaining agreement within the

meaning of §301 of the Taft-Hartley Act or it was an

activity protected by §7 of the Act. To hold otherwise

would be to permit states “to impinge on an area of labor

combat designed to be free” and thereby to obstruct fed-

eral labor policy. N« such state abstruction should be

allowed here, because a non-violent strike is either (1)

a violation of a collective bargaining agreement, under

§301 and gives rise to an action in the courts; or (2) an

unfair labor practice and jis the basis of charges before

the National Labor Relations Board; or (3) neither a

violation nor an unfair labor practice, and therefore within

_ the protection of §7 of the Act, even though by local law,

~— the Taft-Hartley Act, such a non-violent strike

ight be the basis of a contract or tort action. In other

werds, if a strike is not prohibited by §8 or §301 of the

Ack it comes within the protection of §7.

ederal act prohibits.

The Court below seeks to justify its conclusion by

grounding the judgment on common law tort or common

law contract liability, and therefore beyond or apart from

) <B

J 16

pre-emption by the Taft-Hartley Act. However, it was

stated in Weber v. Anheuser-Busch, 348 U. S. 468, 99 L.ed.

546, 75 S. Ct. 480 (1955):

“Certainly if the « uct is eventuall ‘found by

the National Labor .<lations Board to ected

by the Taft-Hartley Act, the state cannot be heard

to say that it is a Arad conduct for reasons other

than those having to do with labor relations.” p. 556.

“eG The decision below, in direct conflict with principles

followed in decisions of at least three Circuit Courts

of Appeal regarding the §301 no-strike issue, holds

that it is a contract violation for a union to strike,

even though the union never agreed either expressly

or by implication not to strike.

The opinion below states:

“The appellant next contends that the picketing

involved in the instant case was not in violation of

the scleaive bargaining agreement, unless the agree-

ment expressly or impliedly contained a no-strike

provision. We disagree.” .

In the present-day approach to this problem, ‘courts

search the language of the coiitract to determine whether

or not the intent of the contracting parties was to bar

strikes and under what circumstances they were intended

to be barred. United Construction Workers v. Haislip

Baking Co., 223 F.(2d) 872 (CCA 4, 1955) cert. den. 350

U. S. 347; Lewis v. Benedict Coal Corp., 259 F.(2d) 346

(CCA 6, 1958), affirmed as to contract interpretation

by equally divided Court: 361 U. S. 459, 4 L.ed.(2d) 442,

80 S. Ct. 489 (1960); U. M. W. A. vo. N. L. R. B., 257 F.

(2d) 211, (App. D. C. 1958). In each of these cases the

17

respective court examined the wording and context of

the labor contract to determine whether the words im-

plied an agreement not to strike. "In all but U. M. W. A. v.

N. L. R. B., the Court found that the agreement implied -

a no-strike provision. In the U. M. W. A. case, the Couft

held that no such intent was to be implied, and therefore

the strike was not a violation of the contract. Thus, it is

clear that courts will import strike prohibition to a

labor contract unless the terms of the agreement express

or imply such a prohibition.

The legislative history of §301 accords with this view.

Both Majority and Minority Reports of the Senate Com-

mittee on Labor and Public Welfare affirm that no-strike

clauses would be an item to be included in or excluded

from a labor agreement as a result of collective bargaining.

Sen. Rep. 105, Part 1, 80th Cong., Ist Sess. (1947) pp.

17-18. Sen. Minority Report 105, Part 2, 80th Cong.,

Ist Sess. (1947) p. 22.

Ill. THIS STRIKE WAS NOT A VIOLATION OF THIS

COLLECTIVE BARGAINING AGREEMENT WITH-

-IN THE MEANING OF §301.

A. No intent to prohibit strike against a discharge of

a union member appears in this contract.

Article II of the contract provides: 3

“The Employer reserves the right to discharge any

man in his employ if his work is not satisfactory.

(Emphasis added).

¥

Thus the contract is written in terms of reservation of

4

o

18

right by the employer, rather than the granting of a right

to the employer. The employer reserved the same right

that he would have had in the absence of the contract and

against the exercise of which right the Union would have

been entitled to strike and picket. It is difficult to see

how this reservation gives rise to a yrike prohibition.

Moreover, the first paragraph of Article XIV of the

contract makes express provision against suspension of

work during the existence of arbitration proceedings con-

cerning the interpretation of a contract. (It is to be noted

that such a provision is omitted from the second para-

graph of Article XIV providing for arbitration of other

_ matters.) If it had been the actual intention of the parties

that there should be no work-stoppage by reason of a

disputed discharge, it is reasonable to assume that the

same provision would have been expressed in Article II.

B. The purposes of the Taft-Hartley Act dictate that

strike prohibitions, unless étended, should not be

imported to a contract merely because momentarily

convenient.

Express no-strike provisions have been “common in

* labor agreements since the beginning of the union move-

ment and are now common to the point of being normally

expressed in collective bargaining agreements, and not

casually but frequently in close detail. Volume 32 Labor

Relations Reference Manual, p. 6; Labor Relations’ Re-

porter LRX 87, Section 14. In practice a collective bar-

gaining contract does not necessarily express full cover-

age of all relations between employer and the union.

, 19

“It covers only such matters as the parties have been able

to agree upon and leaves unresolved such issues as the -

parties may not have been able to agree upon and with:

respect to which the law does not require a concession by

either party.” United States Steel Corp. v. Nichols, 229

° F.(2d) 396, 399, 56 ALR (2d) 980 (CCA 6, 1956), cert.

den. 351 U. S. 950, 100 L.ed. 1474, 76 S. Ct. 846.

The objective of collective bargaining is to reach con-

tractual undertakings arrived at by both parties knowingly

and intentionally at the bargaining table. Basic in Con-

gressional labor policy is the philosophy that the free flow

of commerce will be fostered by voluntary and equal

bargaining resulting in intentional agreements. This policy

is frustrated pro tanto when consequences are imported

to a contract beyond those undertaken by the parties,

either expressly or by necessary implication. The decision

of the court below openly and forthrightly frustrates this

federal policy and ignores common sense by holding

‘petitioner liable for a strike which petitioner never agreed _

to ban.

IV. WIDESPREAD IMPORTANCE TO INDUSTRIES

AND UNIONS OF THE ISSUES DETERMINED IN

DECISION BELOW. .

A. If the decision below as to pre-emption is allowed

to stand, it will bring about lack of uniformity to

most interstate labor cases.

This case is a typical example of what occurs when a

state court asserts control over a strike and picket line

subject to the federal labor acts. An examination of the

20

reasoning in the trial court's memorandum decision (T.

89-55) and the State Supreme Court's opinion (Appendix

- A) reveals completely divergent approaches to both the

facts and their legal consequences, depending on which

court is handling the case. The trial court regarded this

as a tort action in which the issue was whether “the in-

expert handling of the discharge of Welsch by the em-

ployer constitutes legal justification for the illegal picket-

ing of plaintiff's place of business.” (T. 47). The picket-

ing was “illegal” in the trial court's view because it was

“coercive,” that is to say, because it was effective as an

economic weapon against the employer.

2)

The State Supreme Court in part converted this tort

action into a common law contract action. Even though

it did not find a no-strike promise expressed or implied

in the labor contract, it held that the strike and picketing

was in violation of the contract.

If there can be such diversity of approach between

courts of the same state, it can be imagined what mul-

tiplicity of legal standards and factual interpretations

must come out of the several states. If the instant case

stands for a modification of the former holdings of this

Court, and we believe it will, then many of the protections

afforded by both §7 and §8 of the Taft-Hartley Act will

be. gradually ren ‘ered worthless, case by case, and the

carefully protected uniformity, the very reason for the

doctrine of pre-emption, will in this manner certainly be _

defeated. ‘

Labor and management are entitled to know if a strike

can be held a breach of contract in the absence of an

undertaking not to strike. The rule set forth in the de-

cision below would bring particular confusion to those

contracts containing a limited or conditional no-strike

clause, and negotiators of such agreements must know

whether the limits or conditions of the no-strike under-

takings will be the limits of no-strike prohibitions. Sim-

ilarly, the parties to an already existing contract need to

know whether the strike prohibition extends beyond the

limits of those undertaken in the labor agreement.

~ The Taft-Hartley pre-emption doctrine, bearing as it

does on labor's right and obligations under the Act, should

be applied as uniformly and predictably as possible. The

legality or illegality of a strike’ is certainly something |

that should be reasonably clear and definite. In the

clash of labor relations, time rarely permits meticulous

and protracted study and application of facts to the rules

of a diversity of courts and jursidictions. If the prospects

of protection, prohibition and liability are confused and

dependent upon which of several courts and boards may

ultimately pass upon the factual and legal issues, no rea-

sonable forecast or opinion can be given as to the legit-

imacy or illegitimacy of a strike.

C. The protection aff employees by §7 of the —

Taft-Hartley Act will be y reduced, should

the decision below stand.

Millions of industrial employees in the United States

are presently covered by collective bargaining agreements.

Of these agreements the Bureau of National Affairs found

in 1957 that 87 per cent provided an absolute ban on

strikes, 52 per cent. provided conditional strike prohibi-

tions, and 11 per cent contained no strike ban. If the

doctrine of violation of contract without breach of a

promise, express or implied, is allowed to gain currency

as a judicial device for thwarting the jurisdiction of the

National Labor Relations Board, it could very seriously

limit the. protections otherwise afforded by §7 to millions

of union members.

“CONCLUSION

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

February 1, 1961 FRANCIS HOAGUE

iene _ 320 Alaska Building

ae Hoague & Bayless grsensntey Sen

Counsel for Petitioner

APPENDIX

l

APPENDIX A

In THE SupREME Court oF THE STATE OF WASHINGTON

Lucas Flour Company,

Vv.

Respondent, | No. 35310

Loca. 174, TEAMSTERS, CHAUFFEURS,

& HELPERS OF AMERICA,

an unincorporatcd association,

Appellant.

This is an appeal from a judgment for the plaintiff in

an action for damages, which arose out of the following

facts.

The plaintiff, Lucas Flour Company, is a Washington

corporation, principally engaged in the wholesale distri-

bution of flour. The plaintiff employed members of the de-

fendant, Local 174, Teamsters, Chauffeurs & Helpers of

America, with whom'the plaintiff had enter€d into a col-

lective bargaining agréement on April 1, 1955.

In 1953, the plaintiff had employed one Melvin T,

Welsch, who first worked as a truck driver and then as a

warehouseman. His work was unsatisfactory in both ca-

pacities and on more than one occasion only the inter-

vention of the union forestalled his discharge. On May

12, 1958, Welsch started a fork-lift truck, used in the

plaintiff's warehouse, while it was in gear and caused it

to run off the end of the warehouse floor onto the’tailroad

tracks four feet below. The truck was extensively damaged

and Welsch was injured. While at home recovering from

} from

the plaintiff:

of vacation. We would be bet-

On the same day, May 23, Welsch went to see Floyd

Anderson, business agent and vice-president of Local 174,

and stated that he was ready to return to work. W:

obtained a written release from his doctor pursuant to

Anderson's advice. He presented the release to the secre-

tary-treasurer of the plaintiff corporation, who told him

to take the week off and that they would call him if they

issued by the superior court for King county. On Sep-

tember 11, 1958, the matter cf Welsch’s discharge was

submitted to arbitration, and on November 11, 1958 the

arbitrators made the following findings and award:

“1. That the ‘i T. Welsch was un-

satisfactory prior to harge, in that he failed

| at

3

to carry out his ibed duties of keeping the ware-

house clean rotating the stock of merchandise;

during his absences due to illness, he failed to notify

the employer as to the reasons or when he ed

to return; and failed to exercise proper care in

eration of a fork-lift truck, by starting the same whi

it was in gear and causing it to fall a distance of four

feet from the warek . se floor to the railroad siding,

thereby endangering his life and consing extensive

damage to the truck.

“2. That such unsatisfactory work was the reason

for. Melvin T. Welsch’s discharge on May 27, 1958.

“AWARD -

“The Board he by orders that the e of

Melvin T. Welsch on May 27, 1958, was justified and

that he is not entitled to reinstatement with his for-

mer eniployer, Lucas Flour Company.”

The action for damages came on for trial on March 16,

1959, both parties stipulating that the findings of the

arbitrators were binding upon them. The trial court took

additional evidence on matters which it considered had

* not been covered by the findings of the arbitrators, and

at the conclusion of the trial entered judgment awarding

damages, in the amount of $6,501.60, to the plaintiff. The

defendant appeals.

The appellant, Local 174, contends the trial court was

without jurisdiction because the national labor relations

board had exclusive jurisdiction over the controversy:

Appellant cites the recent case of San Diego Building

Trades Council v. Garmon, 359 U. S. 236, 3 L. Ed.( 2d)

4 :

775, 79 S. Ct. 773 (1959), wherein. ‘the United States

supreme court said;

The instant case is not one in which it is clear, nor in

which it may be fairly assumed, that the activity is pro-

tected by §7 or prohibited by §8 of the national labor

relations act. On the contrary, a reading of the sections

makes it clear that the activities here involved fail to

come within the purview of either of these sections. Sec-

tion 7 of the act, 29 U. S. C. A., §157, provides:

“Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations, to

collectively through representatives of their

ee

activities purpose of collective bargaining or

other mutual aid gale: .

5

these parties contained the following provision:

“The Employer reserves the right to discharge any

man in his employ if his work is not satisfactory.”

The strike in the instant case was in protest against the

discharge of an emplovee for admittedly unsatisfactory

work; in clear violation of the agreement. It was an at,

tempt to force the respondent to forego the exercise of a.

right expressly provided by the agreement. It could scarce-

ly be argued that the same provision of the act, which

gives the right to bargain collectively and to enter into

collective bargaining agreements, also gives the right to —

ignore such agreements, or gives the right to do anything

which would nullify the effect of such agreements.

The question then remains whether this was a strike

which would constitute an unfair labor practice under §8

of the act, 29 U. S. C. A., $158, which provides:

“(b) It shall be an unfair labor practice for a

labor organization or its agents—

“(1) to restrain or coerce (A) employees in the

exercise of the rights guaranteed in section 157 of

"this title: . . . or (B) an employer in the selection

of his respresentatives for the s of collective

bargaining or the adjustment of grievances;

(2) to cause or attempt to cause an employer to

discriminate against an employee in violation of sub- .

section (a) (3) of this section or to discriminate

against an employee with respect to whom member-

ship in such organization has been denied or ter-

minated on some ground other than his failure to

tender the periodig,dues and the initiation fees uni-

required as a condition of acquiring or retain-

formly

collectively with an em-

representative of his em-

be

ty

(3) to

ployer,

genes

(nat ainreh Bes

ieee pail el

SaL i fA Heat Hf it

He UBB AAA A

7

“(6) to cause or attempt to cause an employer to

pay or deliver or agree to pay or deliver any money

or other thing of value, in the nature of an exaction,

for services which are not performed or not to be

performed.” :

From our reading of this section we cannot say that it

might be “fairly assumed” that the instant case falls within

the purview of any of the subsections of 29 U. S. C. A.,

§158 (b). ° Therefore, the test announced in San Diego

Building Trades Council v. Garmon, supra, when applied

to the present facts, does not militate against state court

jurisdiction.

However, this is not the sole basis for concluding that

this is a case properly within the ambit of state jurisdic-

tion. The respondent brought this action in the superior

" court of this state to recover for damages incurred as a

result of appellant's attempt to coerce the respondent into

foregoing his exercise of a contractual right. In Selles v.

Local 174 of the International Brotherhood of Teamsters,

_ Chauffeurs, Warehousemen and Helpers of America, 50

Wn.(2d) 660, 314 P.(2d) 456 (1957), this court said:

“We know that the Federal government has pre-

empted the field as to many phases of labor relations,

but not as to all. We cannot find from the act, as

interpreted by the supreme court, that it was the

intention of Congress to deprive a workman of his °

time-honored right to sue in his own state court for

damages resulting from a common-law tort and to

relegate him, for sole relief, to this particular Federal

agency.

“Under the facts of this case, there is no ‘resounding

8

collision’ between the remedies afforded under the

act and in the state court. Under the one, the board

shall issue a cease and desist order and may order

reinstatement, with or without back pay. Under the

other, the state court may not enjoin or issue a cease

and desist order (except in case of violence), and

, may not order back pay, but it can award damages

for a common-law tort. The relief granted by the -

board, with the exception of the cease and desist

order, is entirely discretionary and is exercised to

effectuate the policies of the act and, in particular,

to prevent unfair labor practices. The relief granted

in a common-law tort action is compensation to a

plaintiff for damages sustained by reason of the tort.

“Where the relief granted under state procedure is

» so similar to that granted under the act that a con-

flict ensues between the two, the conflicting state

procedure is excluded. Where such relief is not sim-

ilar to that afforded under the act, there is no con-

flict between the state and Federal remedies, and

the state procedure survives. . . . Respondent's right

to damages, in this case, for a common-law tort, dif-

fers from any remedy which-the board has power to

provide. The state court, therefore, had jurisdiction

to entertain the action.”

We believe the theory of the Selles case is applicable

whether the damages are the result of tortious interfer-

ence with a party's employment or business or the result

of depriving that party of a contractual right. It would

be unreasonable to conclude that Congress intended to

pre-empt the field of labor relations to such an extent that

any party, employer, employee or labor organization would

be left without a means of obtaining compensation for

damages suffered.

9

Appellant contends, however, that §301 of the labor-

management relations act, 29 U. S. C. A., §185, has sup-

planted common-law interpretation and enforcement of

collective bargaining agreements.

Section 301 of the Tabor management relations act con-

fers jurisdiction upon the lower federal courts, to enter-

tain suits based upon violations of labor agreements. We

find nothing in the plain language of this statute which

can reasonably be interpreted as pre-empting state juris-

diction, or as affecting it by limiting the substantive law

to be applied. |

The appellant next contends that the picketing involved

in the instant case was not in violation of the collective

bargaining agreement, unless the agreement expressly

or impliedly contained a no-strike provision. We dis-

agree. The collective bargaining agreement existing be-

tween the parties to this lawsuit created rights and duties

on both sides. One of the principal benefits obtained by

entering into a collective bargaining agreement is that

each party's rights are clearly defined and established,

and in the fact that each may freely and safely exercise

these rights. By virtue of the agreement here in question

the respondent had the right to discharge any employee

for unsatisfactory service. If the appellant could bring —

coercive economic pressure to bear whenever the respond-

ent should attempt a proper exercise of this right, the col-

lective bargaining agreement would have been merely a

worthless gesture, a document to be treated by both parties

as though it had never been executed.

10

The collective bargaining agreement is the cornerstone

of successful labor management relations. To hold that

either party to such an agreement can disregard its express

terms without incurring liability for the consequences

would annihilate all progress in this area with a single

stroke of the pen. Collective bargaining agreements would

be unenforcible by either side, and would create rights

without remedies to protect these rights.

The appellant next contends that this court is not justi-

fied in sustaining jurisdictién on the basis that the picket-

ing was in breach of contract since the trial court based

its judgment solely on tort liability and made no finding

of a breach of contract.

From the pleadings, the theory is established that the

respondent was injured by the appellant's breach of con-

tract and this theory is clearly supported by the record.

Therefore, the rule that the judgment of the trial court

will be sustained on any theory established by the plead-

ings and supported by the proof is applicable. Lundberg

v. The Corporation of Catholic Archbishop of Seattle, 155

Wash. Dec. 75, 346 P.(2d) 164 (1959); Guerin v. Thomp-

son, 53 Wn.(2d) 515, 335 P.(2d) 36 (1959).

Finally, the appellant contends the evidence of lost

profits was too speculative and uncertain to show the re-

spondent’s damages with reasonable certainty. —

We are satisfied that there is substantial evidence in the

record to support the finding of the fact of damage to

the respondent's business with reasonable certainty, and

ERR LD SEE ELE LEELA OLN E SR AG SS a

if °

1]

the amount of damages awarded was well within the range

of the evidence introduced.

Finding no merit in appellant's other assignments of

error, the judgment of the trial court must therefore be

affirmed. ”

It is so ordered.

HUNTER, J.

WE CONCUR:

Weaver, C. J. H

MALLERY, J.

Foster, J.

12

APPENDIX B x

In THE SUPREME COURT OF THE STATE OF WASHINGTON

Turspay, NOVEMBER 15, 1960. %

Lucas FLour CoMPany,

Respondent} tuDGMENT

No. 35310

Locat 174, TEAMsTERS, CHAUFFEURS King County

7 No. 521982

Appellant.} *

vs.

This cause having been heretofore submitted to the

Court, upon the transcript of the record of the Superior

Court of King County, and upon the argument of counsel,

~ and the court hr ving fully considered the same, and being

fully advised in the premises, it is now, on this 15th day

of November, A.D. 1960, on the motion of Allen, DeGarmo

and Leedy, of counsel for respondent, considered, ad-

judged and decreed, that the judgment of the said Superior

Court be, and the same is, hereby affirmed with costs;

and that the said Lucas Flour Company have and recover

of and from the said Local 174, Teamsters, Chauffeurs

& Helpers of America, an unincorporated association, and

from Continental Casualty Company, surety to the extent

of $300.00, the costs of this action taxed and allowed at

Three hundred thirty-six and 92/100 ($336.92) Dollars,

and that execution issue therefor. And it is furthur ordered,

that this cause be remitted to the said Superior Court for

further proceedings, in accordance herewith.

13

OF record in Journal 48 at page 468 In the

Office of the Clerk of the Supreme Court

APPENDIX C

Section 7 of the Taft-Hartley Act; 29 U..S. C. §157;

61 Stat. 140:

Rights of Employees :

“Employees shall have the right to self-organization,

gain colively through representatives of thei own

gain representatives of their own

choosing, and e in other concerted activities

for the ccs collective g or other

mutual aid or protection, and also have the

right to refrain from any or all of such activities

cncigk 0b Civ aii Wiad walk ibe tany bon albected

by an agreement requiring membership in a labor

organization as a pongfephen me ar. t as author-

ized in section 158(a)(3) of this tit

Section 8 (b) (3) of the Taft-Hartley Act; 29 U. S. C.

§158 (b) (8); 61 Stat. 141: ~

“(b) It shall be an unfair labor practice for a labor ~

organization or its agents—

“(3) to refuse to in collectively with an em-

ployer, provided it is representative of his em-

re subject to the provisions of section 159(a)

of this title;

Section 8 (d) of the Taft-Hartley Act; 29 U. S. C. §158

(d); 61 Stat. 142-1438:

“(d) For the purposes of this section, to bargain

collectively is the performance of the mutual obliga-

MED

Z ’

or

tains

terthination

tract

proposed

fication days prior to the

~uhe ue

date,

litte i

Ht il

i

ba at

ra) i

7 tie ae

“gstagdy “es

Hartley Act; 29 U. S. C. §185;

15

days after such notice is or until the expirati

iu dtekdenn se

Section 301 of the Taft-

61 Stat. 156-157:

iba Anois pled

ii Heke Lil

le i Hit fie

Bia wae RAT

ging? st] ;

BAN an Rae

“(d) The service of summons, subpena, or other

16

legal of any cout of the United States upon -

dian ee —o organization, in his

copay as uch ik cade Gee aie de

“eae tee eee or in determin-

ing whether an ee “agent” of

mile thee oo te re-

ie tn one Os queen of oleh oo

st colina aes sdlitlly citteeseed ox

subsequently ratified shall not be comttrolling.”

He

PRIVATE CARRIER AGREEMENT

TERMS Om AGREEMENT :

The following agseement and scale of wages shall be in

force and effect on and after April 1, 1955, as between

» Lucas Flour and Local Union #174, International

Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers of America, and shall continue in effect until

April 1, 1958, and shall continue from year to year there-

after provided either party may open this agreement by

giving notice in writing not later than sixty days prior

to the expiration date.

Grnenat Conprmions ‘.

ARTICLE | | se

The Employer agrees to continue to recognize the Union

as the sole collective bargaining agent for all employees

falling within the jurisdiction of this agreement.

- It is further agreed that all Union workmen employed

by the Employer shall maintain their membership in good

17,

standing in the Union and that »non-union workmen em-

ployed shall become members of the Union on or after

the thirtieth day following the beginning of employment

or the effective date of this agreement, whichever is later.

Further, any liberalization from the Union's point of view

which may be made in the Union Shop Provision as de-

fined in the Labor Management Relations Act, either by

Congressional Amendment or Judicial decision, shall be

adopted by the parties and made a part of this agreement.

ARTICLE Il

The Employer reserves the right to discharge any man

in his employ if his work is not satisfactory.

ARTICLE Ill

No workman shall be discriminated against for uphold-

ing Union principles, and any man who works under the

instructions of the Union, or who serves on a committee

shall not lose his job or be discriminated against for this

reason. — 3 :

It shall not be a violation of this agreement or cause

for discharge for any employee to refuse to cross a picket

line in the performance of his duties.

. ARTICLE IV

The following days shall be considered holidays: Jan-

uary 1, February 22, May 30, July 4, Labor Day, Thanks-

, giving Day and December 25, and all regular employees

shall be paid for all such holidays regardless upon which

cay iz the week the holiday should fall. If any v -ri is

performed by such employee on such holiday, additional

18

compensation at straight time shall be paid. No employee

shall be called on such holiday for less than a full day.

When any of the aforementioned holidays fall on Sunday,

the Monday following shall be considered the holiday.

If a holiday occurs during an employee's vacation, he shall

receive holiday pay in addition to his vacation pay.

Five consecutive days of eight consecutive hours, Mon-

day through Friday, inclusive, shall constitute a week's

work; time to start when driver arrives at the garage. No

driver and/or helper shall work before 7:00 A:M. or after

6:00 P.M. except in cases of emergency and/or by mutual

consent between the Employer and Local Union #174.

Any work performed before the regular starting time, or

after the regular quitting time, shall be considered over-

time and shall be paid for at the rate of time and one-half.

All Saturday work shall be guaranteed eight (8) hours

work at the rate of time and one-half. All Sunday work

ee ee

double time.

Any extra helper or driver working four (4) full con-

secutive days in five (5) consecutive days (Sundays and

holidays excepted) shall be considered a steady man, and

shall be paid the same scale of wages as a steady man.

ARTICLE V ~

All members who have been employed for a period of

one (1) year or over shall have one (1) weeks’ vacation

with pay; for two (2) years or over, two (2) weeks’ vaca-

tion with pay; and fifteen (15) years of employment, three

19

(3) weeks’ vacation with pay. — :

All regular employees shall receive pro-rated vacations

after the first year of service at the rate of 1/12 of the

determined vacation pay for each month of service.

Any employees who have been receiving more favorable

vacation privileges prior to the signing of this agreement

shall continue to receive them for the duration of this

agreement.

ARTICLE VI

Seniority shall prevail in layoffs for all employees after

three (3) months’ service. In the event of a layoff, the

last employee hired shall be the. first laid off.

ARTICLE VII

When a regular driver takes out a vehicle, he shall

receive a full day’s pay. Any regular driver reporting for

duty in the morning, waiting subject to orders, shall be

paid for one-half day. In computing overtime, for less

than fifteen minutes, fifteen minutes shall be allowed; for

over fifteen minutes and less than ‘one-half hour, one-half

hour shal!-be allowed; for over one-half hour and less than

forty-five minutes, forty-five minutes shall be allowed; for

over forty-five minutes and less than one hour, one hour

shall be allowed.

* ARTICLE VIII

When Employers prescribe wearing apparel for em-

ployees, they shall pay for same. It shall bear the Union

label. Employees who wear uniforms prescribed by Em-

ployers shall pay for the cleaning of same not to exceed

20

ten cents (10c) per day.

ARTICLE IX

No employee, who prior to the date of this agreement

was receiving more than the rate of wages: designated

in this agreement for the class of work in which he is

engaged, shall suffer a reductionin the rate of wages from

work.

; PER HOUR

PER WEEK OVERTIME

Trucks with Gross License Capacity

20,000 Ibs. and under $86.60 $3.243,

Over 20,000 Ibs. 88.60 3.324%,

Semi Trucks and Trucks and Trailers 90.60 3.39%,

Steady Helpers and Bull Drivers 83.60 3.13%

Extra Helpers and Drivers of Trucks

20,000 Ibs. and 2.1644 3.24%,

Extra Drivers of Trucks over 20,000 lbs. 2.261% 3.39%,

PER HOUR

? PER WEEK OVERTIME

Trucks with Gross License Capacity

20,000 Ibs. and under $89.00 $3.334,

Over 20,000 Ibs. 91.00 3.41%

Semi Trucks and Trucks and Trailers 93.00 3.48%,

Steady Helpers and Bull Drivers — > 86.00 3.22%

Extra and Drivers of Trucks

20,000 Ibs. and under 2.224, 3.33%

Extra Drivers of Trucks over 20,000 Ibs. 2.32% 3.483),

21

EFFECTIVE APRIL 1, 1957

All regular employees shall be guaranteed a full week's

work. |

4 PER HOUR

PER WEEK OVERTIME

Trucks with Gross License Capacity

20,000 Ibs. and under $91.80 $3.441,

Over 20,000 Ibs. 93.80 3.5134

Semi Trucks and Trucks and Trailers 95.80 3.5914

Steady Helpers and Bull Drivers 88.80 3.33

Extra Helpers and Drivers of Trucks a

20,000 Ibs. and under 2.291% 3.4414

Extra Drivers of Trucks over 20,000 Ibs. 2.391, 3.591,

ARTICLE XI

Night shift premium of fifteen cents (15c) per hour

shall be paid for all second shift work performed between

the hours of 6:00 P.M. and 7:00 A.M.

As of April 1, 1955, each company shall pay into a

Health and Welfare Fund the sum of $10.40 per month

for every employee covered by this agreement who worked

eighty (80) hours or more in the month of March, 1955,

and thereafter shall pay $10.40 per month for each eligible

employee, employed eighty (80) hours or more during

the preceding month, said payment to be gnade on or

before the tenth (10th) day of each month.

ARTICLE XII

Commencing October 1, 1955, and during continuance

of this Collective Bargaining Agreement, the Employer

shall pay into the Western Conference of Teamsters Pen-

~~sion Trust Fund on account of each member of the bar-

gaining unit an amount equal to ten cents (10c) for each

hour for which compensation is paid to him, said amounts

22

to be computed monthly. The total amount due for each |

calendar month shall be remitted in a lump sum not later

than ten days after the last business day of each month.

The Employer agrees to abide by such rules as-may be

established by the Trustees of said Trust Fund to facilitate

the determination of the hours for which contributions

are due, the prompt and orderly collection of such amounts,

and the accurate reporting and recording of such hours

and such amounts paid on account of each member of

the bargaining unit. Failure to make all payments herein

provided for, within the time specified, shall be a breach

of this agreement. :

ARTICLE XIII

In the event of war, declaration of emergency, imposi-

tion of civilian wage controls by the U. S. Government

during the life of this contract, either party may reopen

the same upon thirty (30) days written notice and re-

quest renegotiation of matters dealing with wages and

hours. Upon the failure of the parties to agree in such

negotiations, either party shall be permitted all lawful

economic recourse to support their request for revisions.

If governmental approval of revisions should become nec-

essary, all parties will cooperate to the utmost to attain

such approval. The parties agree that the notice provided

herein shall be accepted by all parties as compliance with

the notice requirements of applicable law so as to Epona

economic action at the expiration thereof. _

ARTICLE XIV

Should any difference as to the true interpretation of

23

this agreement arise, same shall be submitted to a Board

of Arbitration of two members, one representing the firm,

and one representing the Union. If said members cannot

agree, a third member, who must be a disinterested party

shall be selected, and the decision of the said Board of

Arbitration shall be binding. It is further agreed by both

parties hereto that during such arbitration, there shall be

no suspension of work. .

Should any difference arise between the employer and

the employee, same snall be submitted to arbitration by

both parties. Failing to agree, they shall mutually appoint

a third person whose decision shall be final and binding.

If any employee is removed from service for any doubt-

ful cause, jie shall have a fair and impartial investigation

. within three days.. If-found guilty, he shall suffer the pen-

alty, and if not, he shall be paid for his time off at the

regular scale of wages.

‘For THE: INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS

or America, Locat Union 174

GeorcE Cavano, Secretary-Treasurer

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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