Brief for the National Labor Relations Board in Opposition — Truck Drivers & Helpers Local Union No. 728, I. B. T. v. National Labor Relations Board (No. 501)

INDEX

Opinions below |

Jurisdiction ;

Question - presented"

Statute involved

Statement .

A. The Board's findings and conclusions

B. The Board’s order

C, Thé decision of the Court of Appeals .

: ‘Argument

Conclusion 2

CITATIONS

Cases :

Inte ‘rnational Brotherhood of Electrical toby oy

'¥.- National Labor Relations ee

694

13

- Local 1976, Carpe nters’ Union Vv: Wattonel Labor -

Relations Board, 357 U.S. 98

+.

227

Statutes and rule:

United States v. Schacfer Brewing Co., 356 U.S.

9, 14,12

2

Labor-Management: Reporting and Disclosure Act

of 1%9 (Public Law 6-257), Section 701(b),

73 Stat. 543

|

National Labor Relations Act, as amended (61

Stat. 136, 29 U.S.C. 151, ef seq.), Section 8 (b)

—(4)(A) _

28 U.S.C. 2101(¢)

Rule, 22(3), Revised Rules of the Supreme Court’

‘of the United States

:

2,3, m 10, I

te

In the Supreme Court of the Hnited States

October Ter m, 1959 7 :

No. 501

TRUCK DRIVERS AND HELPERS LOCAL UNION No. 728,

_ INTERNATIONAL . BROTHERHOOD OF: TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN. AND HELPERS OF

AMERICA, PETITIONER

Vv. ;

. NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES’ COURT OF APPEALS .FOR THE |. °

ree CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION | S

OPINIONS BELOW

The opinion of. the court ¢f appeals (Pet. 59-70) is.

_. reported at 265 F. 2d 439. The Board’s decision and

order (R. 66- 142)" are reported: at 119 NLRB 399.

' References to Volume 1, Transcript of Record, printed |

. pursuant to the rules of the court beipw, are designated,

2 “R.” \References to portions of the testimony and exhibits,

(1)

yine

@.

JURISDICTION 5.

_- The judgment below was entered on April 8, 1959

(Pet. 71). ~A petition for yehearing was. denied 0:

June 11, 1959 (Pet..72), and a formal decree enfore-

ing the Board’s order, as modified, was entered on July

31, 1959 (Pet. 73). The petition for certiorari Was

” filed on October 28, 1959.‘ The jurisdiction of this

Court is. invoked under 28 U.S.C. 1254.

- QUESTION PRESENTED

wv

Whether substantial ‘evidence supports the Board's

finding that petitioner Union induced and encouraged

the employees of freight-carriers to refuse to handle

the freight of Genevet Parts Company in violation. of

> @

STATUTE INVOLVED . ©

The pertinent provisions of the National Labor Re-

lations Act, as amended (61 Stat. 136, 29 U.S.C. 151,

- et seq.) are set forth at pp. 7-8 of the petition. |

2

f

their briefs beiow, are designated by the symbols “P.A.” and

“BA.” Occasional references to portions of the testimony

not so printed are designated “Tr.”

2 There may be a question as to the timeliness of the peti-

. tion. - If the time for filing a petition for certiorari. is) to

be calculated. from the date of denial of the petition. for

rehearing rather than,the date of entry of the formal decree. | —

- the petition is untimely. . 28 U.S.C. 2101(c),; Rule 22(3).

- Revised Rules of the Supreme C ourt of the United States. .

cf. United States v. Schacfer Brewing Co., 356 U.S. 227.

Section 8(b) (4) (A) of the National” Labor Relations

Aaland. Bre ss ner ea s :

|

|

_ printed by the petitioner and the Board as appendices we

«>

3

STATEMENT

4

A. The: Board's findings and conclusions.—The

Board found that petitioner Union violated Scction | -

8(b) (4) (A) of the Act by inducing and encouraging .

the employees of several freight carriers to-refusé to

handle the freight’ of the Genuine | Parts Company,

with the object of forcing or requiring the carriers, to

cease doing business with Genuine Parts. The evi- —

‘dence upon which the Board based its — es

summarized below.

On March 12, 1956, the Sein wheels is the éerti-

fied bargaining representative of the. production and

" thaintenance employees of the Rayloe Division of.

Genuine Parts, initiated a strike in support. of bar-

gaining demands, and on March 19 ‘set up picket

lines at all Genuine Parts installations in the Atlanta

area (R. 18, 22, 34; B.A. 30, 34). Most of the freight

'. carriers parfosming services .for Genuine. Parts em -|

ploy members of the ‘Union under area-wide agree-

_ ments containing the “hot cargo” clause set forth at.

pp. 8-9 of the Petition (R. 4, 5, 22-28; 68; P.A. 19-20, ,

48). Although the Union had: on notified the carriers

of the picketing pursuant to the pFovisions of the con-.

tract, . the employees of the carriers respected the

picket lines .at the Genuine Parts installations (R. 70;

_ B.A. 8, 18, 24-25, 30, 43). Thereupon,. the freight

from Genuine Parts was delivered to the docks of the

carriers by, independent drayage companies or by ve- —

‘hicles of Genuine Parts itself (R. 70; BlA, 139 24-25,

30), and until the day after the Union meeting. of .

March 27, the carriers experienced little difficulty in

pe

having their employees handJe- Genuine Parts freight

at the carriers’ docks (R. 70; B.A. 25, 27)..

Union Secretary-Treasurer ‘Mathis called a “special

meeting” of the Union for March 27, and,each stew-

ard was so advised by a letter, which was in turn to —

be posted on the bulletin boards provided by .the car-

riers (RK. 70; P.A. 1, 10, 23). According to Mathis,

the meeting was called. “for the specific purpose of

determining whether the ‘members wanted to handle

the goods of Genuine Parts and Rayloce or not to

handle them” (P.A. 10). Of a total membership of

5,500, of which 2,500 were covered by the agreements:

containing the “hot cargo” clause, approximately 400

attended the rieeting (R. 35; P.A. 5, 20, 186). No

employees were in attendance from three or four of

the carriers subject to the agreements (P.A. 6). .

Mathis, who presided, opened fhe meeting by re-

porting to the membership that negotiations “with -

Genuine Parts had been conducted for four or five

months, ‘but Genuine. Parts refused: to grant any.pay

increase or, for that matter; any kind of a “decent

agreement” (R. 367 P.A. 12-13, 148). Mathis stated -

that the Union had been receiving telephone calls from

members wanting to know about handling Genuine

Parts freight, and that the purpose of the meeting

as “to determine what they wanted to do” (P.A.

13). He proceeded to read. the “hot cargo” clause,

which provided,’ inter alia,.that the. members “‘indi-

vidually’. reserved*the. right to ‘refuse to handle “un-

fair” goods, and that the insistence of an employer

that his employees handle “unfair” goods “after they

have elected not to” shall be “sufficient cause for an

5

imanedbaite strike of” his apbthitens ‘without any

need to go through the grievance procedure” (P.A.

25, Pet. 8-9). A discussion. then ensued for about

one hour, during which Mathis indicated that “there

probably would bea resolution adopted during the

course of the meeting: (P.A. 27, 148, B.A. 40).

At the conclusion of the discussion, Member Kent

moved “that the members of Local 728 refuse to |

handle the goods of Rayloe and Genuine Parts” (P.A.

27-28, B.A. 41). “But. Mathis rejected the motion

because it did not state that the employees desired “to

exercise their rights as individuals” to refuse to

handle the goods (P.A. 28, Tr. 245). Accordingly,

Mathis himself drafted the following resolution:

* * * each member has the right to make an in-

dividual voluntary decision as to whether he will

or will not handle goods or equipment consigned

to. or received from this a. [Genuine

Parts].

_ In accordance with this right “each of the

members has made and now announces his indi- |

vidual voluntary decision not to handle such

. goods.

Under the * * * Articles [of the agreements |

with the carriers], it is the obligation of the.

Union to give each employer notice of the intent

of the members to refuse. to handle these unfair

goods and in order to comply with the obligations

of these Articles, the officials of the Union.are

hereby requested to notify each carrier employer

of the intent of these members to refuse to

handle these cescribed goods id A. 148-149, Tr.

246-248, 250-252].

6

Mathis’ resolution was adopted unanimously’ by, a a

show of hands (P.A. 10, 29, 149, B.A. 41). |

On March 28, the Union, through its assistant busi- |

ness agent, sent the following notice to all freight

carriers who were parties to the area-wide “hot cargo”

contract:

‘To All Operators:

Dear Sir: As you may know, Teamsters’ Local

728 is on strike and engaged in picketing Genu-

- ine Parts Company’s Atlanta area offices and

_ plants, pase % the Rayloc plant.

In pursuante of their rights under Article IX

of the Southeastern Area @ver-the-Road Motor

Freight Agreement and Article XI of the Local,

Freight Forwarding Pickup and Delivery Agree- -

ment, the members have each made an individual

voluntary decision to refuse to handle goods or

equipment consigned to or received ffom this

Company. This election has: been approved in

writing by the. responsible officials of the South-

ern States Drivers’ Council. hie

Under the provisions of the above-mentioned

Articles, the Union has the obligation to give you

‘notice of the intent of the members to refuse to

andle these unfair goods, and the members have

requested that we give you this notice. This

letter ‘will serve as such notice [R. 71; P.A. 41

_ Following the March. 27 Union meeting, the em-

ployees of most of the carriers uniformly refused to

handle Genuine Parts freight (R. 71-72; P.A. 9).

* According to Mathis, he had been advised of “some in- .

stances” ii: which members did handle Genuine Parts freight. —

However, he was unable to recall the name of any employer

iT

When asked to handle. ah edie the employees

used the stock reply: “I personally refuse to handle”

"(R.° 72; B, A. 11). Indeed, it was stipulated at the

hearing that the Union had a “number of witnesses”

(230. in all) who would testify, if called, that they

were employed by carriers who were parties to the

contract and had refused to handle Genuine Parts

goods on “one: or more occasions” after March 27

(R. 28-29, 72). Some of these members had attended

the Union meeting and some had not (R. 28-29, 72).

-On April 6, a few days after the Union meeting,

a Genuine Parts truck delivered freight to the dock

of the Simpson Express Company for carriage over

the Simpson line (R. 49: B.A. i. &, €: Simpson,

president of the company, saw Deck Foreman Roan

in conversation with Union Steward Woodbury (R,

49, 104; B.A. 13-14). Joining them, Simpson heard

Woodbury, who ‘was holding a bill of lading in his

hand, state that he could not handle the freight _be-

cause it was from Genuine Parts (R. 49; B.A. 14-

15). When Simpson asked that the freight be han-

dled because the company might be sued if it was

not, Woodbury replied that: he would “have to call

the union hall and see what they say” (R. 49; B.A.

15, 22). Woodbury then made a te lephone call at 2

nearby booth and returned to say: “They. told me

not to; we can’t ‘handle it” (R. 49: B.A, 15, 22).

In reply to the query to whom he had spoken, he

so involved, nor was there any other evidence presented: in-

dicating that - ag boycott of Genuine Parts goods was not

complete (R. ; B.A. 4, P.A. 17). ,

O

9g’

named Union Assistant. Business Agent Pulliam (I.

49; B.A. 15, 23). - 4

A short time later, in the presence of several em-

ployees, ° Simpson asked Steward Woodbury if he

would ask the employees to handle the Genuine Parts

freight, but Woodbury stated he could not (R.. 49,

104: B.A. 15-16). Simpson then asked employee

Fulcher, in Woodbury’s presence, to handle the

freight (R. 49, 104; B.A. 18-19, 23). Fulcher re-

plied he could not do go, “if the steward told him

not to handle.it,” and Woodbury said nothing (R. 50.

104; B.A. 19-20). Finally, Simpson asked the group .

of employees assembled on the dock what would hep- |

pen if Simpson, himself, should handle the freight

-(R. 50, 104; B.A. 18).. Woodbury replied that “the

boys would probably walk off the job” (R. 50, 104:

B.A. 18). The Genuine Parts truck then departed .

(B.A. 18). |

Prior to the Union meeting of March 27, the em-

' nloyees of Akers Motor Lines handled Genuine Parts

freight which was delivered to Akers by a local dray-

age company (R. 52-53; B.A. 25). During this pe-

-riod Union Steward Jimmie Butler told the employees

he “would: file a grievance against them. if they

handled the freight” (R. 104; B.A. 32). On March

28, Akers received the Union’s letter notifying al!

carriers that, the employees intended to refuse io

handle Genuine Parts freight (R. 538; B.A. 23).

Beginning on March 30, the employees refused to

handle such goods, and on the same day the terminal

manager for Akers received a phone call from Union

Secretary-Treasurer Mathis who stated: “You are

9

not supposed to ask the men to handle it after you

received our letter. If you handle any more, I will

-have to strike you” (R. 53-54, 81-82: B. A. 2ST}. -

Similarly, When the terminal manzger of Ben! On

Motors Express asked, | after the March 27 mee: Pe,

Whether his employees "might handle Genuine Pars

freight, two Union businéss agents guve an

“friendly tip’—ihat he would have “trouble

insisted. Thereafter, Mathis’ phoned the. m:

and warned him that, under the « mtract, Chet

ployer could not insist. that the employees hand!»

goods which they had elected not to han idle (R. 3 81-

.82; B.A. 9-10).

On the basis of the foregaing, the Board foun!

that ‘by ealling and conducting the specie) mectine

for the purpose of considering the “hot cargo” 2e fon

of the membership, by drafting and sponsering. the

resolution by which the members present collectively.

announced ‘the. “individual decisions of all che mem- _

bers, and by the other conduét set forsh supra, pp

7-9, the Union had induced and encouraged the

employees of ‘the carriers .to- engage in fa concerted

- refusal in«the course of their employ ment te he nd

Genuine Parts freight, with the chjeet of foreine +!

carriers to ecase doing business with Geuuine Pp,

in violatiqn of Section Sib) (4) C4). of the Net CR.

26-27, 81-82, 106). In sd holding, the Boar’ ney

found that the Union's ; etlon Was not priviigal by

the “hot cargo” clause (PR. 101).! |

‘A majority of the Board also found that the close wad

invalids However, in view of this Court's sunervening hold-

ing in Local 1936, Carpenters’ Union V. Nationa! Labor Rila-

<« P

a:

10

B. The Board's ordcer.—The ‘Board’s order (R.

107-109) required the Union to cease and desist from

inducing and encouraging the employees of the car-

riers to engage in a strike or concerted refusal to

handle Genuine Parts freight to foree any such em-

ployer to discontinue doing business with Geguine

arts or “with any other like person ‘or company who

has business relations with aforementioned carriers

in the Atlanta area.” | aa

(AC Re decision of thg, court, of c¢ ppeals.—The

court below held that the activities set forth at pp.

4- 9, supra, constituted “union action to induce the

employees of the carriers not to handle the freight

and _ to impose the Teamsters’ will on the secondary

employees, and employers” (Pet. 67) and “that there

is substantial evidence to support the Board's findins

that the Union violated Section 8(b) (4) (A) (Pee

69). The court enforced the Board's ordey, atter

deleting the words “or with any other like person or

company who .has_ public yelations with aforemen-

‘tioned carriers in the Atlanta-arev”. (Pei. 69-40).

ARGUMENT ;

As petitioner statés (Pet. 29, 32), the decisiv.

‘ssué in. this case is whether the Union meeting of

March 27 was utilized for the’ purpose of inducing

the members to refrain: from handling the vouds of,

Genuine Parts or whether it was a mere efFart. on

the part of the Union to inform the member's of then

*

.

tions Hieavil $57.05. 935, that a “hot cargo” clause is not a

defense under Section &(b) (1) GA), irrespective of its valid-

ity, this aspect of the Joard'’s decision played no part in the

judgment of the vont below in is no longer significant.

>

11

individual right to refrain from handling these goods

and to ascertain their wishes.” The Board found on

the record as a whole that the purpose of the me: ting

~Was to bind the membership to the decision of th

Union officials to boyeott Genuine Parts’ goods and

thatthe meeting was conducted in such 2 manne:

as to constitute inducement 2nd encouragement ef.

employees to engage in the boycott, in violation of the .

Act. Petitioner’s attack upon the adequacy of th:

evidentiary support, for this factual finding, sustained

by the court below, presents no issue: Wvarrantine

review by this Court. ° | ‘

In any event, the Board's findings in this i. -pee.

sve clearly supported by the record. That the special

meeting was merely a guise for emborkine on:

Unien-sponsored boycott is shown, | by th fort that:

* Contrary. to petitioner's intimation “(Pet. 22-23). there

is no issue here as to the legality of the So-called “Protee-

tion of Rights” or “hot cargo” clause. As. noted above, the

doard found that petitioner illegally induced the employe.

to engage in secondary work stoppages and, in addition, that

the “hot cargo” clause Was also violative of the Act. Sub-

sequently, however, this Court-held in Local 1976,C arpenters’

Union Vv. National Labor: Relations Roarit, 307 U.S. -93, that

such a clause, is net a defense under Section &(b) (1) CA) of

the Act, irrespective of its validity. Accordingly there no

longer is any occasion in the instant case to consider the

legality of the clause itself. Mareover, it mav be pointed

out that Seetion 701(b). Labor-Management potatos ka

Disclosure Act of 1959 (Public Law 86-257), 73 Stat: 543,

makes it an unfair labor practice for a labor peter

and an emplover to enter into an agreem: nt, express or

imphed, whereby such ompiover “ceases or refrains or agrees

to cease or refrain from handling, using, selling, transport-

Ing or otherwise dealing in arwof the products of any other

mplover , or to cease doing business with anv other person

: x ”

a

it was held.only after the offectiveness of the Union’s

picket line wes being dissipated (pp. 3-4, supra); by

the manner in which Secretary-Treasurer Mathis:

conducted the mecting (pp. 4-6, supra); and by

Mathis’ introduction .of his own resolution which.

although it contained the words “individual volur-

tary decision,” rigidly committed ‘alt affected mem-

hers, even the absent 2,000, to a collective or Union

hoveott. (p. 5, supra). The resolution did not pur-

" port té give the individual member any discretion

2s to whether he would or would not handle Genuine _

Parts freight at the time when choice became most

meaningful, i.c., when the goods arrived at the ear-

rier’s dock and the carrier requested the employee to

handle them (see: Local 1976, Carpenters’ Union

v. National Labor Relations Board, $57 «U.S. 93,

105). Moreover, after the Union mceting, the em-

ployees gave the same answer, “I personally - re-

fusé to handle,” when asked to handle Genuine

‘Parts freight (p. 7, supra), and Mathis.threatened

at least two carriers with strikes if they insisted that

their ciaployees handle the freight (pp. 8-9, supra).

Finally, the actions and statements of ‘two of the

Union stewards (pp. 7-8, supra) furnish direct

proof that the Union's objective was: inducement of

carrier employees not to handle the freight. Indee«,

the actions and statements of the stewards consti-

tuted such inducement.” In this setting, there wes

'* There is no stthstance to petitioner’s subsidiary conten-

tion (Pet. 417-57) that there is no basis in the record for

holding it responsible for the acts anu statements of its

stewards. The evidence shows that the stewards performed

RT es mene

e

13

aniple basis for the Board to conclude that the Union |

violated the: statutory prohibition against inducement |

or encouragement of employees to engage in second-_

ary work stoppages—e prohibition which is “broad

enough to include * * * every form of influence 2nd

persaasion.” International. Brotherhood of Electrica!

Workers v. National Labor Relations Board, 341 U.S.

694, 701-702, '

&.-

the usual duties generally associated. with the’ position, in-”

cluding the transmission of official Union messages and in-.

structions (R, 102-103; P.A. 9-10, 152-153), and employee

Fulcher stated that he could not handle the freight “if the

steward told him not to” (p. 8, supra). To the employees,

the stewards were the “Union on the job” (R. 103).- The

contract, which purports to limit the authority of ‘the stew-

ards to call work’ stoppages to situations “authorized by

official action of the Union” (R. Ex. 3, Art. V), doves not

require written authorization, and, further, the contract lim-.

itation cannot detract from the otherwise. apparent author- —

ity of the stewards to call Union work stoppages. In these

circumstances. the Board could properly find, as it did, that

the stewards were acting for and_on behalf of the Union.

14

CONCLUSION

‘The petition for certiorari should be denied.

Respectfully submitted,

J. LEE RANKIN,

: Solicitor General.

STUART ROTHMAN, ;

General Counsel, _

-THoMaS J.. MCDERMOTT,

_ Associate General Counsel,

DOMINICK L. MANOLI,

‘Assistant General Counsel,

_ FLORIAN J. BARTOSIC,

. Attorney,

National Labor Relations Board.

®

NOVEMBER 1959.

\

Tu 5S) GOVERNMENT PRINTING CRFice 1959 531022 660