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.