Appendix — Dallas General Drivers, Warehousemen & Helpers Local Union No. 745 v. National Labor Relations Board (No. 638)

ss

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APPENDIX A

In the

United States Court of Appeals |

‘FOR THE FIFTH CIRCUIT

he

No. 18091

aenomae, LABOR RELATIONS Boar,

Petitioner,

versus

. é

DALLAS GENERAL DRIVERS,.WAREHOUSEMEN AND

HELPERS LOCAL UNION No. 745,

JV -

Respondent.

Petition for Enforcement of an Order of the National

Labor Relations Board, sitting at Washington, D. C.

(August 18, 1960.)

Before RIVES, Chief Judge, and CAMERON and BROWN

Circuit Judges.

PER CURIAM: The questions presented for decision -

dre:.(1) whether substantial evidence supports the Board’s

finding that the respondent union intended, by its picketing.

at construction projects, to induce work stoppages by em-

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ploy ees of contractors other than Macotee, Ine. and thereby

vidlated Section 8(b) 44) (A) of the National Labor Rela-

tions Act’ ond a2) whether the Board’s order is too broad.

"The Trial Examiner, after a two-day hearing, made

findings of fact ‘upon the entire record in the case, includ-

ing stipulations of the parties, and from my observation,

of the witnesses,” which comprise thirty-five pages of the —

printed record. The Board adopted the f indings of the Trial

Examiner, and based its conclusion that the picketing of

cgnstruction sites was for such unlawful objective upon

the following:

(1) The primary employer: Macatee, had a perma-

‘ nent place of business where all its employees, inclyd-&

ing those not. directly. involved in the labor dispute

with the Respondent Union, regularly reported, and

where the Respondent Union could and did publicize

its dispute to, and solicit the sypport of, Macatee’s

employees.’ If the Respondent Union’s object was only

to seek the support of the primary employer’s em-

ployees, there was no, need for picketing the ema

of neutral employers. -

section 8(b) (4) (A) of the Act, as it was in effect during the events

in Fi is case, provides that it shall be an unfair laber practice for a labor

organization or its agents— ‘

“* * * to engage in, or to induce or entourage the employees of any

employer to engage in, a strike or a concerted refusal in the course

of theim employment * * * or to perform any services where an

object thereof is:.(A) forcing or requiring * * * any employer or

— person * * * to cease doing business with any other person.

Section” 8(b) (4) was amended in the Fall of 1959, and the provision

applicable here was renumbered as Section 8(b)(4)(B). See Public Law

86-257, 1959.

2Amarille General Drivers, Warehousemen and Helpers Local

Ur nion No. 577. (Crowe-Gulde Cement Company), 122 NLRB No. 153.

° .

f

»

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““(2) The Respondent Union’s.letter to employers in

the construction industry in Dallas requesting them

to cease doing, business with Macatee until the labor

dispute was settied.’ ; ,

“(3) In many instances, employees of neutral em-

ployers quit work when Responden: Union’s picnes

‘ appeared.* ‘ ss F

“(4) On+February 26 and 27, 1959, Respondent

Union’s pickets picketed the entire length of the-John ~.

Deere property facing on Harry Hines Boulevard

rather than iimiting themselves to the area adjacent

to the place where Macatee’s employees were working

on the project.” On February 25, 1959, Respondent —

Union’s pickets continued picketing the Richardson

project for 2 hours after the Macatee’s and other

employer's emplovees had ceased working and had left

the job. - tet: :

“In view of the foregoing, we find, as did the Trial

Examiner, that Nespondent Union violated Section

Stbr (4) (A}-by_its picketing at the <dnstruction sites

of neutral employers.° “i

'“Jderm. (In this case a substantially identical. letter was held

evide@lce of the respond-nt union's obiectivé am engaging in see-

ondary. empioyer ,picket ng. See fn.. 4): NLRB. vo Assocrtted

Musicysns, 226 F. 2d 900, 904 (C. A. 20; NLRB. ¢. Denver Buald-

ing and Construction Trades Council, 193 F. 2d 421, 425-424 €C. A.

10). :

“e4 marille Ge neral Drivers, Ware fionsemen and He ipe rs, Local

Union No. 5277 (Crowe-Gulde Cement Companys, sapra.

. % ;

‘ {marille Pieneral Drevers, Ware housemen ard He lyers, Local

co

Union No. 57> (Crowe-Gulide Cement Company), sepra.

“In affirming the conclusiey: of ‘tthe Trial Examiner, we have

not adopted his reasoning ‘based on the supposed analogy te the

Otis Massey case (109 NLRB 275, enf.den. 225 F. 2d ¢C. A. 'S},

_ cert. den. 350 C. S. 914). In Otis Massey,.the circuit court: refused

to enforce the Board’s decisiog because it felt that the Bagrd had

ignored evidence which,it regarded” as establishing that the re-

spondent union was not picketing fer‘ an unlawful chjective. The

court later pointed out that in its Ofes Masse decision the, other °

employees of the primary employer at the common construction

(Continued on next page)

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The recommendations of the Trial Examiner included ~

the following:

“* * * As this is not the first such violation:in which

the Respondent has engaged,** it may reasonably be

expected that the Respondent will continue to Commit

similar violations in the future. Therefore the recom-

mended order will not be limited only to the individual

employers named herein, but instead will apply to any

other employer’ as we. ial °

2

The Board’s Order broadly ‘alend the —

union to:

“1. Cease and desist from engaging in, or inducing

or encouraging employees of employers other than

Macatee, Inc. to engage in a strike or a concerted

refusal in the course of their employment to use,

manufacture, process, transport, or otherwise handle

or work. on any goods, articles, materials, or commod-.

ities or to perform any -services, where an object

thereof is to force or require any employer or other

(Continued from preceding page)

situs picketed ‘almost never came te thé primary employer’s ‘princi-

al situs, the warehouse,’ and the criteria evolved by the Board in

foore qo“ (92 NLRB 547) ‘were scrupulously " earved. 5

pry v. Truck Drivers and Helpers (National. Trucking Co.), 228

F..2d 791, 796 (C. A. 5). See also N.L.R.B. v, Associated Musicians,

226 F. 2d 900, 906 (C. A. 2)..In the present case, we rely for our

finding of illegal objective not on the fact that the primary

employer had a permanent place of business where the Respondent

Union could adequately publicize its dispute to all employees of the

primary employer including these not directly avenyes in the dis-

pute, but also on the other evidence set forth above.”

“29Dallas General Drivers, Warehousemen & Hel rs, etc. (Asso-

ciated Wholesale Grocery of Dallas, Inc.), 118 NLRB. 1251, enf.

43 LRRM 2696 (C. A. 5). See-also Dallas General Drivers, Ware-

housemen & Helpers, ete. (H tdebrand Warehouse Company), 111

NL RB 1313, where the Respondent complied with the Trial Exam-

iner’s recommended order.

“Local 926, Internatianal lL'nion of Operating Engineers, °AFL-

CIO (Armco Drainage and Metal Products, Inc.), 120 NLRB 188,

189,” .

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person to cease using, selling, handling, transporting, .

or otherwise dealing in the products of Macatee, Inc.,

or to cease doing business with that company or any

other company.” (Emphasis supplied. }

and to post specified notices and make certain reports. \~/

The respondent union makes no attack upon the findings

of fact by the Trial Examiner, but earnestly insists that

the record taken as a whole does not ‘present a substantial

basis of believable evidence pointing toward the unlawful

motive. See N.L.R.B. v. General Drivers, etc., 5 Cir., 1955,

225 F.4d 205, 211; compare N.L.R.B. v. Dan River Mills, ©

5 Cir., 1960, 274 F. 2d 381, 385. . |

-* After carefully studying the record and considering the

‘briefs and arguments, we find that the Board’s finding is

supported by substantial evidence for the reasons already

adequately stated in the Board’s decision. See also Superior

Derrick Corporation v, N.L.R.B., 5 Cir, 1960, 273 F. 2d

891.

As to the breadth of the Board’s order, the Board’s brief

is silent. The*Board failed tq rule upon Exception #14 of

the respondent union raising the point.’ Upon the author-

“Union excepts to the expansion of the order beyond the em-

ployers nanfed in the Complaint to apply to all employers without

limitation, for the reason that there is no pleading to support such‘

order, for the further reason that respondent has never been noti-

fied that such order was sought nor had any opportunity to defend

against such order, and for the further reason that there is no

evidence to support such order. Said order is too broad and beyond’

the Board powers for the reaso;fs set-forth in the decision of the

. United States Court of Appeals for the Fifth Cireuit ih N.L.R.B.

v. Ford Motor, 119 F. 2d 326 (C. A. 5, 1941) and N.L.R.B. ¥. Local

926 Operating Engingers, 267 F. 2d 418, 44 L.RuR.M. 2201 (C. A.

“5; May 26, 1959), and Truck Drivers, ete. No. 728 v. N.L.R.B., 265

F. 2d 439.” . ;

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ities cited by the respondent union in its exception (foot- -

note 2, supra), and upon the recent Supreme Court decision

in Communication Workers, etc. v. N.L.R.B., U.S. No. 418,

Oct. Term, 1959, m/s, decided May 2, 1960, 28 L.W. 4291,

and our decision i in N.L.R.B. v. Local 926, etc., 5 Cir., 1959,

267 F. 2d 418, 421, we hold that that part of the order of

the Board heretofore quoted is too broad and: should be

modified to read as follows: _

7

“1, Cease and desist from engaging in, or inducing

or encouraging employees of J. W. Bateson Company,

Inc. or Gower & Folsom Construction Company y to

engage in a strike or a concerted refusal in the course

of their employment to use, manufacture, process, _

transport, or otherwise handle or work on any goods, .

_ articles, materials or commodities or to perform any

" services, where an object thereof is to force or require

J. ‘W.. Bateson Company, Inc., or Gewer & Folsom

Construction Company to cease ho han-

dling, transporting, dr’otherwise dealing in the prod-

ucts of Macatee, Inc., or to cease doing business with

that Company.” .

As so modified the order of the Board is Enforced.

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APPENDIX B 5

~

: In the. ; ;

United States Court of Appeals

FOR THE FIFTH CIRCUIT ~~

No. 18091 —

NATIONAL LABOR RELATIONS BoARb,

= ‘ Petitioner,

versus % ;

_ DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND

HELPERS LocaAL UNION NQ 745,

‘ . Respondent.

-

Petition for Enforcement of an Order of the National

_ Labor Relations Board, sitting at Washington, D. C.

‘(October 13; 1960.)

ON PETITION OF THE NATIONAL LABOR

e RELATIONS BOARD FOR REHEARING

- Before RIVES, Chief Judge, and CAMERON and BROWN,

Cireuit Judges.

PER CURIAM: In the light of JBEW Local 501 rv.

_ N.L.R.B., 1951, 341 U. S. 694, 705-706, it appears that in

>

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that part of the order quoted in our original opinion the

Board properly used the first two phrases which we ital-

icized, viz.: (1) “employers other than Macatee, Inc.,” ( 2)

“any employer or other person,’ ’ Only the final nes of —

that part of order should. be. stricken, viz.: “or any

other company.” _

As so modified, the order of the Board is enforced. In

other respects the petition for rehearing is denied.

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APPENDIX C -

(Original Filed-—Nov ember 14, 1960)

United States Court of Appeals

FOR THE FIFTH CIRCUIT.

~ ,.18091 :

’

- NATIONAL LABOR RELATIONS BOARD, |

‘ Petitioner,

Vv.

DALLAS GENERAL DRIVERS, WAREKOUSEMEN AND

HELPERS LOCAL UNION NO. 745,

Respondent.

_ DECREE ENFORCING, AS MODIFIED, AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD

. Refore: Rives, Chief Judge, and Cameron and Brown, —

Circuit Judges. :

By the Court: — | .

THIS CAUSE came on to be heard upon the petition of

the National Labor Relations Board to enforce its order

dated August 24, 1959. The Court. heard argument of

respective counsel on May 17, 1960, and has considered the -

briefs and transcript of record filed in this cause. On

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\

August 48, 1960, the Court, being fully advised in the

«Premises, handed down its opinion enforcing as modified,

the Board's Order. Thereafter, pursuant to the Board’s

“petition for rehearing filed September 6, 1960 and Re-

spondent’s opposition’ thereto, filed September 26, 1960,

this Court or October 13, 1960, handed. down its decision

re-instating and enforcing certain provisions of the Board’s

order which had been deleted by the original decision of

. August 18, 1960. Accordingi:’, it is hereby ~~

- ORDERED, ADJUDGED AND DECREED».by the

United States Court of Appeals for the Fifth Circuit that

Dallas Gener al Driv ers, Warehousemen and Helpers Local

Union No. 745, its officers, representatives, agents, suc-

cessors and assigns shall:

1. Cease and desist from engaging in, or inducing or -

encouraging employees of employers other than Macatee,

Ine. to engage in a strike or a ‘concerted refusal in the

course of their employment to use, manufacture, process,

transport, or otherwise handle or work on any goods, arti-

_cles, materials, or commodities or to:perform any services,

where an object thereof is to force or require any emyfloyer

or other person to cease using, selling, handling, trans- |

porting, W& otherwise dealing in the products of Macatee,

[nc., or to cease doing business with that company. . °¢

2. Takethe following affirmative action which the Board .

| has found will effectuate the policies of the Act:

(a) Post at its offices and at all other places where

notices to members are customarily posted, copies.of the

A-ll .

notice attached hereto marked “Appendix A.” Copies of

said notice to be furnished by the Regional Director for

the Sixteenth’ Region, Fort Worth, Texas, shall, after being

duly signed by an official represer.tative of Respondent be

posted immediately upon receipt thereof and be maintained

for a period of sixty (60) consecutive days thereafter in

conspicuous places, including all places where notices to

members are customarily posted. Reasonable stevs shall be

taken by Respondent to insure that said notices are not

altered, defaced, or covered by any other material.

(b)’ Mail to the aforesaid Regional Director signed copies

of said notice for posting at the plants and projects listed

on Appendices B and C attached hereto the companies will-

ing, in places where notices to employees are customarily .

posted. | |

(c) Notify the said Regional Direetor in writing, within

ten (10) days from the date of this Decree, of the steps it

- has taken to comply therewith.

ENTERED: November 14, 1960

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APPENDIX a. .

NOTICE TO ALL EMPLOYEES

PURSUANT TO |

A Decree of the United States Court of Appeals enforcing

as modified, an order of the National Labor Relations ~

Board, and in order to effectuate the policies of the .

National Labor Relations Act, as amended, we hereby

notify you that:

WE WILL NOT engage in or induce or encourage

-employees of employers other than Macatee, Inc. to -

’ engage in a strike or a concerted refusal in the course

of their employment to use, manufacture, process,

transport, or otherwise handle or work on any goods,

‘articles, materials, or commodities or to perform any

. services, where an object thereof is to force or require

any employer or other person to cease using, selling,

handling, transporting or otherwise dealing’ in the

products of Macatee, Inc., or to cease doing business

with that company.

DALLAS GENERAL DRIVERS, WARE-

HOUSEMEN AND HELPERS ‘LOCAL

UNION NO. 745 :

Dated By

(Representative) (Title)

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This notice must ‘remain posted for sixty (60) days from

the date hereof, and must not be altered, defaced, or cov-

ered by any other contorted.

es “APPENDIX B

Boek Congtruction Company /

Wm. H. LaDew Corhpany

Russell Plunitbing Company

- Ed Hogan, d/b/a Hogan Plastering peirener

_ American Roofing Company |

" Gotham Electric Company

. . wCrisp & Vaughn

APPENDIX C

*, Richardson school project

~ John Deere- project

Exchange Park project

Reserve Life Insurance project

‘DuBoise, Highway 75 project

Great Southwest Cerporation project

. A-14

a

. APPENDIX D

124-NLRBNo.8% : D-943.

: » Dallas, Texas

DECISION AND ORDER

ey, .(Number and Title Omitted)

On June 5, 1959, Trial Examiner Sydney S. Asher, Jr.

issued his Intermediate Report in the above-entitled pro-

ceeding, finding that the Respondent had engaged in and

was engaging in certain unfair labor practices and recom- |

mending that it cease and desist therefrom and take certain

affirmative action, as set forth in the copy of the Inter-

mediate Report attached hereto. Thereafter. the General

Counsel, the Charging Party, and the Respondent filed ex-

ceptions to the Intermediate Report together with support-

ing briefs. _

The Board" has reviewed the rulings of the Trial Exam-

iner made at the hearing and finds that no prejudicial error

was committed. The rulings are hereby affirmed. The Board

has considered the Intermediate Report, the exceptions, the

briefs, and the entire record in the case, and hereby adopts

the. findings, conclusions, and recommendations of the Trial

£xaminer with the following additions and modifications.

We agree with the Trial Examiner that Respondent

Union, by its picketing at the construction sites of neutral

~*tPursuant to the provisions of Section 3(b) of the Act, the Board

has delegated its powers in connection with this case to a three-member

panel.

: * aie

al .

employers, induced or encouraged employees of such neu-

tral employers to discontinue werk with an object of forcing,

‘or requiring the neutral employers to cease doing business

with Macatee, Inc., the primary employer.

*” We base our conclusion that the picketing of construccion

sites was for such unlawful objective upon the following: .

(1) The primary employer, Macatee, had a permanent

place of business where all its employees, including those

‘not directly involved in the labor dispute with the Respond-

ent Union, regularly reported, and where the Respondent

Union could and did publicize its dispute to, and solicit the

support of, Macatee’s employees. If the Respondent Union’s

object was only to seek the support of the primary employ-

er’s employees, there was no'need.for picketing the premises’.

ot neutral employers. .

(2) The Respondent Union's letter to employers in the

construction industry 1n Dallas. requesting them to cease

doing business with Macatee until the labor dispute was.

settled.” :

(3) In'many instances, employees of neutral employers

quit work ey ia Union’s pickets appeared.’

Aa r ral

2A marillo Irivers, Warehousemen and Helpers Local Union

No. 577 (Crowe-Gulde Cement Company), 122 NLRB No, 153. .

sJdem. (In this case.a substantially identical létter was held evidence

of the respondent union’s objective in engaging in secondary employer

picke‘ ing. See fn. 4): N.L.R.B. v. Associated Musicians, 226 -F. 2d 900,

904 (C. A. 2); N.L.R.B. v. Denver: Building and Construction Trades

Council, 192 F, 2d 421, 423-424 (C. A. 10). ‘

+Amarillo General Drivers, Warehousemen and Helpers, hoeal Union

No. 577 (Crowe-Gulde Cement Company), supra. , ‘

e ;

5 —A-16

(4) On February-26°and 27, 1959, Respondent Union's

pickets picketed the entire lehgth of the John Deere prop-

erty facing on Harry Hines Boulevard rather than limiting

themselves to the area adjacent to the place where Maca-

tee’s employees were working on the project. On February

25, 1959, Respondent Union's pickets continued picketing

the Richardson project for 2*hours after Macatee’s and’

other employer's employees had ceased working and had

left the job. :

In view-of the foreguing, we find, as did the Trial Ex-

aminer, that Respondent Union violated Section 8 (b) (4)

‘(A) by its picketing at the construction sites of neutral

employers.° ; ce

ce

. ‘

Amarillo General Drivers, Wovehousemen and Helpers, Local Union

No. 527 (Crowe-Gulde Cement Company), supra. .

°

‘In affirming the .conelusion of the Trial Examiner we have not

udopted his reasoning based on the supposed analogy to the Ot.4 Massey

case (100. NLRB 275, enf. den. 225 F. 2d (C. A. 5), cert. den. 450 U.S.

O14). In Otis Massey, the Cireuit Court refused to enforce the Board’s

decision because it felt that the Board had ignored evidence which it

revarded ag establishing that the respondent union wa not pieketing for

an unlawful objective. The court later pointed out that in its Otis Massey

decision the other employees of the primary employer at the comiion

construction situs picketed “almost never came to the primary employer's

principal situs, the warehouse,” and the eriteria evolved by the Board in

Moore Drydock (92 NLRB 547) “were scrupulously observed.” NLRB.

v. Track Drivers and Helpers (National Trucking Co.) 228 F. 2d 794,

46 (C. Ae 5). See also N.L.R.B. v. Associated Musicians, 226 F. 2d 200,

oon (C. A. 2). In the present case, We rely for our finding af. itlegal

objective not only on the fagt that the primary employer had a perma-

nent place of business where the Respondent Union could adequately . *

publicize its dispute to all employees of the primary employer, including

these not directly involved in the dispute, but also on the other evidence .

set forth above.

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ORDER

Upon the entire record in the case, and pursuant to Sec-

tion 10 ‘c) of the National Labor Relations Act, as amend-

ed, the National Labor Relations Board hereby orders that

kespondent Union, Dallas General Drivers, Warehousemen

and Helpers Local Union No, 745, its officers, representa-

tives. ugents, successors and assigns, shall:

1. Cease and desist: from engaging in, or inducing or

encouraging employees of employers other than’ Macatee,

Inc. to engage in a strike or a concerted refusal in the

course of their employment to use, manufacture, process,

transport; or otherwi ise handle or work. on any goods, arti-

. cles, materials, or ‘commodities or to perform any services,

where an object thereof is to force or require any employer

or other person to cease using. selling. handling, trans ‘port-

ing, or otherwise dealing in the products of Macatee, Ine.,

or to cease doing business with that company oy any other

company. Jo, e

¢

(2) Take the following affirmative action which the

Board finds will effectuate the policies of the Act:

tn» Post at its offices ond at all other places where

‘notices to members are customarily - posted... eopies of the

notice attached hereto marked, “Appendix A.” Copies of

said notice to be furnished by the Regional Director for the

In the event that the order is enforced by a decree of a United States

Court ‘Appeals. there shall be substituted for the words “PURSI ANT

TO A DECISION ANB OR DER’ the worde “py RSUANT TO A

DECREE OF THE ENITED STATES COURT OF APPEAIS,- -

ENFORCING AN ORDERS 7

A-18

Sixteenth Region, shall, after being duly signed by an offi-

cial representative of Respondent Union, be posted imme-

diately upon receipt thereof and be maintained for a period

of sixty (60) consecutive days thereafter in conspicuous

places, including all piaces where notices to. members are

customarily posted. ‘Reasonable steps shall be taken by

Respondent Union to insure that said notices are not al-

tered, defaced, or covered by any other material.

(b) Mail to the Regional Director for the Sixteenth

Region signed copies of Said notice for posting at the plants

and projects listed on Appendices B and C attached to the

Intermediate Report, the companies willing, in places where

notice to employees are customarily posted.

(ce) Notify the Regional Director for the Sixteenth Re-

gion, in writing, within ten (10) days from the date of this

Decision and Order, of the steps it has taken to epmply

herewith,

Dated, Washington, D.C. Aug 24 1959 _

“~

.Philip-Ray Rodgers, | Member

Stephen S. Bean, Member

John H. . Fanning: ; Member

NATIONAL LABOR :

RELATIONS BOARD

sSEAL)

A-19

APPENDIX A

NOTICE TO ALL EMPLOYEES

PURSUANT TO

"A DECISION AND ORDER

of the National Labor -Relations Board, and in order to—

effectuate the policies of the National Labor Relations Act,

as amended, we hereby notify vou that:

WE WILL NOT engage in, or induce or encourage

employees of employers other than MACATEE,

INC. to engage in, a strike or a concerted refusal.

in,the course of their employment to use, manu-

facture, process, transport, or otherwise handle or

work on any goods, articles, materials, or com-

modities or to perform any services, where an

object thet ‘eof is to, force or require any employer

or other person to cease using, selling, handling,

“tr ansporting, or otherwise dealing im the products

of MACATEF, INC. or to cease doing business

with MAC ATEE, INC. or any other company.

f DALLAS GE NER AL DRIV ERS, WAREHOUSEMEN

AND HELPERS L OCAL UNION sale 745

Dated ; By , .t

. (Representative! (Title)

This notice must remain sted for SIXty (60) days from

the date hereof, and must not be altered, defaced, or cov-

ered by any other mater ink