# Appendix — Dallas General Drivers, Warehousemen & Helpers Local Union No. 745 v. National Labor Relations Board (No. 638) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0781%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1960 ## Text ss A-1 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- -A-2 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 » A-3. ““(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 (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) A-4 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,” . A-5 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.” . ; A-6 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. A-7 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 > ‘ a - S ' $ A-8 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. A-9 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 A-10. \ 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 A-12 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) A-13 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. A-17 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0781%3A3. Public record. Not legal advice.