# 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) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0067%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the National Labor Relations Board in Opposition - **Published:** January 1, 1959 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0067%3A1. Public record. Not legal advice.