Highway Truck Drivers & Helpers, Local 107, Etc.

National Labor Relations Board - Board Decisions

Jun 2, 1961

131 N.L.R.B. 925 (N.L.R.B. 1961)

HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 925
nical and safety engineers, quality control checkers-systems, systems
analyzers," foremen's confidential clerks, all technical trainees," first
aid personnel, all cafeteria employees, all salaried employees, office
clerical employees, professional employees, watchmen, patrolmen,
foremen, assistant foremen, foreladies, assistant foreladies, guards, all
other supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
[The Board dismissed the petition filed by Electrical Factory Work-
ers' Union in Case No. 9-RC-4279, with a prejudice to its filing of a
new petition for a period of 6 months from the date of this Order,
unless good cause be shown why the Board should entertain such new
petition prior to the expiration of such period.]
10 The record shows that this classification has been excluded from the bargaining unit
and that the duties involved have not changed . All parties are agreed that this classifica-
tion should continue to be excluded . The Employer , however, wishes to change the name
of this classification from "systems analyzer" to "calibration engineer," to which change
the UMW and the IBEW object As no issue has arisen concerning the unit placement of
this classification , we find it unnecessary to pass on the Employer 's request.
11 The UMW and IBEW are willing to delete the limitation in the current contract, which
provides that no more than 10 technical trainees should be excluded from the unit. The
Employer agrees.
Highway Truck Drivers and Helpers, Local 107, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America , Independent and E . A. Gallagher & Sons.
Case No. 4-CC-124. June 2, 1961
DECISION AND ORDER
On July 21, 1960, Trial Examiner Louis Plost issued his Intermedi-
ate Report in this proceeding, finding that the Respondent Union had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed timely exceptions to the Intermediate
Report and a brief ; and the Respondent filed a brief in support of
the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and finds merit in the exceptions of the General Counsel.
Accordingly, the Board adopts the findings of the Trial Examiner
only to the extent that they are consistent with the following :
E. A. Gallagher & Sons, hereinafter referred to as Gallagher, is
engaged in the trucking business in Philadelphia and performs both
131 NLRB No. 117.
926 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over-the-road and local trucking functions. Roughly 40 percent of
Gallagher's business involves the hauling of steel from plants in Balti-
more, Fairless, and Conshohocken to consignees in Pennsylvania and
New Jersey. The majority of the steel hauling is performed by as
many as 40 independent owner-operators who pick up the steel at the
mill in their own trucks and deliver it directly to the consignee. They
are paid on a ton-mile basis, and are in no way connected with Galla-
gher other than as independent contractors. The independent owner-
operators generally are not members of the Union. However, the local
drivers employed by Gallagher and situated at the Employer's Phila-
delphia locations are represented by the Respondent and have been
for many years. When business warrants, Gallagher also leases
equipment with or without operators from other truckers in the
Philadelphia area. Respondent is the bargaining representative of
drivers employed by Gallagher, by other independent truckers, and
by members of Motor Transport Labor Relations, Inc., a multi-
employer bargaining group.
In Case No. 4-CC-82, issued May 7, 1957 (not published in NLRB
volumes), the Trial Examiner found that Local 107, the Respondent
herein, violated the secondary boycott provision in Section
8(b) (4) (A) of the Taft-Hartley Act when it struck on January 2,
1957, to force Gallagher to cease dealing with independent owner-
operators. The Trial Examiner there based his finding on the fact
that Local 107 demanded on December 20, 1956, that Gallagher cease
dealing with independents, and struck Gallagher to enforce this
demand. The strike was terminated by injunction, and that dispute
between Gallagher and Local 107 ended with the issuance of the Trial
Examiner's Intermediate Report, to which no exceptions were filed.'
The parties subsequently entered into a separate contract effective
until December 31,1959. ,
On September 28, 1959, Respondent sent Gallagher notice of in-
tention to terminate the contract, and on December 21, 1959, Respond-
ent sent Gallagher new contract demands in a form letter agreement,
the pertinent parts of which follow :
Para- We are in the process of negotiating the wages, hours and
graph 1 working conditions to become effective January 1, 1960 and
thereafter with Motor Transport Labor Relations, Inc. Be-
cause time is so short and because we desire to conclude our
agreement with employers such as yourself who are not
members of MTLR, we are asking you to agree to the fol-
lowing wages, hours and working conditions effective Jan-
3 As the events in this prior case occurred outside the 6-month limitation period of
Section 10 (b) of the Act, we rely on them for background purposes only. Local Lodge
No. 1424 , International Association of Machinists, AFL-CIO; et at. v. N.L.R.B. ( Bryan
Manufacturing Co.), 362 U. S. 411.
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC., 927
uary 1, 1960 and thereafter which will be contained in the
new agreement.. , a
Para- Article VII of the current contract shall be amended so
graph 9 as to provide in addition that it is the Operator's obligation
to see that all trucks arriving in this area from over the road
are brought to the terminal before making any delivery or
pickup unless otherwise agreed upon.
* * * * * * *
Next We are asking you to agree to these wages, hours and
to last working conditions in order to continue our collective bar-
para- gaining relationship without interruption after the ex-
graph piration of our contract. Of course if our master
negotiations result in any different changes in our existing
collective bargaining agreement with you your signature to
this letter will indicate your approval of such different
changes. In other words, you are agreeing herein to effec-
tuate the changes in our current collective bargaining agree-
ment which will be the same as the changes applicable to
all employers in the area. [Emphasis supplied.]
Following receipt of the above December 21, 1959, letter agreement,
an exchange of communications ensued in which Gallagher expressed
a willingness to accept the Union's proposals except for paragraph 9
and "any provisions in conflict with the . . . Act . . . or the exist-
ing order of the . . . Board." The Union reiterated its demand that
Gallagher sign the agreement to comply with area terms and assured
Gallagher that he would "not be asked to agree to any terms violative
of law or administrative regulations." Thereafter a meeting between
'Portions of the MTLR contract referred to in the December 21 letter agreement and
placed in issue in the instant case provide:
MTLR Master Agreement effective January 1, 1960 , to December 31, 1962 . ( The same
clauses appear in MTLR Master Agreement effective January 1, 1957-December 31, 1959 )
ARTICLE VII All local area operation work which in the past , MTLR, Operator
Local Area and a particular Union agree should or was to be performed solely
Protection by employees covered by this Agreement shall be performed by
employees represented by Union.
ARTICLE XVII Local area operations include all work performed within the
Local Area city of Philadelphia or within a radius of forty ( 40) miles from
Operations City Hall , Philadelphia.
ARTICLE XXI No Operator may lease or hire outside equipment to supplement
Leased or his own equipment unless all of Operator 's available, usable equip-
Hired ment is working . No outside driver shall be permitted to operate
Equipment leased or hired equipment unless and until all available employees
on the seniority list of Operator have been assigned to work in
seniority list order ; this provision shall not apply to specialized
equipment not normally driven by Operator's employees. When
Operator leases or hires equipment with a driver , operator shall
give first preference to employers having a contract with a local
of the International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties was arranged for January 2, 1960. Gallagher and his at-
torney went over the December 21 letter in detail with Battisfore and
Berman, the union business agents, and the union attorney. Gallagher
agreed to sign the letter agreement if the Union would give assurance
that there would be no interference with the independent operations
because, according to Gallagher, if he were to sign the agreement the
way it was written, there would be no question that he would have to
stop doing business with the independent owner-operators. Gallagher
wanted paragraph 9 and the next to last paragraph deleted as well
as changes in other sections of the contract. The Union refused. On
January 3, when MTLR negotiations were further advanced, the
parties again went over the December 21 agreement, section by section.
Berman and Battisfore orally agreed to delete paragraph 9 from the
proposed contract. Gallagher further objected to the next to last
paragraph, because, as he testified, "they wanted us to stop doing
business with the independents, and they told us that the-that in
their negotiations with MTLR, they were going to write in a clause
that would eliminate the use of independent operators or bring the
trucks into the home terminal." Battisfore testified that he told
Gallagher the Union was not interested in the independents and any
contract would not refer to owner-operators. However, Gallagher
.told them he did not believe them, and "wanted something in writ-
ing." The parties agreed that Gallagher's attorney would submit to
the union attorney written counterproposals embodying changes
brought about by the agreement of the parties and the MTLR nego-
tiations. This was done and delivered to the union attorney on Janu-
ary 4. On that date Respondent called a strike of Gallagher's
employees. The strike was called because Gallagher would not sign
Respondent's proposed contract. The strike was accompanied by
picketing.
There is no reference made to paragraph 9 in Gallagher's counter-
proposals, nor mention made of past or future MTLR agreements.
The Union rejected the counterproposals on January 5.
On January 11, 1960, Respondent sent Gallagher a letter informing
him that all MTLR negotiations were completed, and set forth the
changes in the MTLR contract which would, together with the Decem-
ber 21 letter, constitute the new agreement for nonmembers of MTLR
effective as of January 1, 1960. Though no mention is made of the
use of independent drivers or hiring of equipment, the next to last
paragraph of the January 11 letter stated that certain changes in the
MTLR agreement would be made and other subjects would be dis-
cussed to work out satisfactory wording, and that when these matters
were resolved they would become part of the contract.
Gallagher, on January 14, accepted the December 21 letter agree-
ment as amended by the January 11 letter, "subject to . . . previous
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC . 929'
assurance and the agreed understanding that the provisions of para-
graph 9 of December 21, 1959 letter are not applicable." Respondent
replied by telegram the next day, January 15, accepting Gallagher's,
proposal but with the understanding that whatever is finally agreed
to between MTLR and Respondent would be observed by Gallagher.
Gallagher replied to the Union by telegram on January 16•
and agreed to sign the December 21 letter agreement as amended
by the letter of January 11, and accepted certain other provisions
(union security, grievance procedure, appointment of stewards), but
urged Respondent to withdraw the next to last paragraph of the
December 21 letter because it "could compel (Gallagher) to cease
doing business with independent contractors or operators...." Re-
spondent replied that the terms of Gallagher's proposal were agree-
able, except that it would not withdraw its demand that whatever is
agreed to between MTLR and Respondent would be observed by
Gallagher.
A meeting was held on January 20 in an attempt to settle the strike.
The contract was discussed, and Gallagher presented the December 21
letter with paragraph 9 crossed out. The secretary-treasurer of the
Respondent, Cohen, agreed to that., Gallagher also presented to Cohen
a copy of a letter agreement dated January 21 drawn by Gallagher
which reiterated earlier understandings, and stated that Gallagher-
would be bound by the MTLR agreement where applicable, except
where it would interfere with his use of independent owner-operators.
Cohen refused to sign the letter. The meeting ended without Cohen
giving Gallagher written assurance that Gallagher's use of independ-
ents would not be impaired, and with Gallagher's refusal to enter into
any agreement absent such assurance. Thereafter a series of tele-
grams were exchanged in which the parties restated their basic posi-
tions, and the strike ended on February 6 pursuant to injunction ob-
tained by the Board under Section 10(1) of the Act. As of the time,
of the hearing no ultimate agreement had been signed by Gallagher.
On these facts the Trial Examiner dismissed the complaint, con-
cluding that the picketing was in support of legitimate contract
demands, that the Respondent made no demand during the course of
the contract negotiations that Gallagher cease dealing with owner-
operators, and that the Respondent had in fact retracted certain
contract demands prior to the strike date. We disagree.
The language of the amended Act in Section 8 (b) (4) (A) and 8 (e)
is plain and unambiguous.' Section 8 (e), inter alia, renders void
a The relevant portions of Section 8 (b) (4) (A) provide :
It shall be an unfair labor practice for a labor organization or its agents-
R k i i L i t
(4) (1) to engage in, or to induce or encourage any individual employed by any-
person engaged in commerce or in an industry affecting commerce to engage in, a.
599198-62-vol 131-60
930, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all contracts , express or implied , in which an employer "ceases .. .
or agrees . . . to cease doing business with any other person," and
makes the entering into of ' such an agreement an unfair labor prac-
tice. Section 8(b) (4) (A), inter alia, renders unlawful the forcing
of an employer to enter into such an agreement by inducement of
individuals, by strikes, threats, restraint, or coercion'
Further, by proscribing contracts "express or implied," Congress
obviously intended that the thrust of Section 8 (e) extend not only to
contracts which clearly on their face cause a cessation of business,
but also to those contracts which by their intended effect or operation
achieve the same result. No other interpretation appears open or
reasonable; else the efficacy of this section would be nullified.'
It is apparent, and Respondent admits, that Respondent had, as
an object of its strike, the securing of the December 21 letter contract,
which explicitly incorporated by reference the MTLR areawide
agreement. Respondent contends, however, that it withdrew para-
graph 9 prior to the strike and that the next to last paragraph of the
December 21 contract demand did not incorporate any provisions of
the MTLR agreement which would cause a cessation of business
between Gallagher and independent owner-operators. Respondent,
however, refused to agree in writing to delete paragraph 9 until
January 15, 11 days after the strike began-in spite of Gallagher's
insistence upon such written assurance. The first and next to last
paragraphs of the December 21 contract clearly indicate that Re-
spondent, in its attempt to obtain conformance by such operators as
Gallagher to the areawide terms it negotiated with MTLR, expressly
strike or a refusal in the course of his employment to use, manufacture, process,
transport , or otherwise handle or work on any goods, articles , materials, or com-
modities or to perform any services ; or (ii ) to threaten , coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in either
case an object thereof is:
(A) forcing or requiring any employer . . . to enter into any agreement which is
prohibited by section 8(e)
Section 8(c) provides in pertinent part :
It shall be an unfair labor practice for any labor organization and any employer
to enter into any contract or agreement , express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using , selling, trans-
porting or otherwise dealing in any of the products of any other employer, or to
cease doing business with any other person, and any contract or agreement entered
'into heretofore or hereafter containing such an agreement shall be to such extent
unenforcible and void : . . .
4 That such was the clear purpose of Congress is shown in the legislative history, e g,
H. Conf. Rept 1147 on S. 1555, p 39 , September 3, 1959, and Senate Committee Analysis
of Act, p. 20 , September 10, 1959 , reported in Legislative History of the Labor-
Management Reporting and Disclosure Act of 1959 , U.S. Govt. Printing Office, 1959,
pp. 943, 966. -
5 Amalgamated Litlhographers of America and Local 78 , Amalgamated Lithographers of
America (Employing Lithographers of Greater Miami, Florida, and Miami Post Company),
130 NLRB 968 ; Amalgamated Lithographers of America (Ind) and Local No 17 of
the Amalgamated Lithographers of America ( Ind) (The Employing Lithographers, A
Division of the Graphic Arts Employers Association and Lithographers c6 Printers National
Association, Inc.), 130 NLRB 985.
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 931
incorporated certain sections of the MTLR agreement, including
articles VII, XVII•, and XXI, described supra.
Accordingly, we find that the object of'the strike was the securing
of a contract which incorporated the provisions of the MTLR agree-
ment in issue here, and for at least the first 11 days of the strike,
embodied paragraph 9.
Concerning the provisions which were demanded by Respondent,
articles VII and XVII of the MTLR agreement define local area
operations as those performed within a 40-mile radius of City Hall,
Philadelphia, and limit the performance of such operations to em-
ployees represented by Respondent. Paragraph 9 of the December
21 letter-contract specifies that trucks arriving in the Philadelphia
area from over the road must be brought to Gallagher's terminal
before making any local deliveries. Thus, under the terms of this
contract, nonunion owner-operators, utilized by Gallagher, could not
deliver goods to consignees in Philadelphia area , but would have to
bring their trucks directly to Gallagher's terminal. In order to
effectuate local delivery, the steel would then either have to be trans-
ferred to other trucks manned by members of the Respondent, or the
independent operators would have to hire union members to drive
their trucks. In either event the contract would require a partial
cessation of business between the independent owner-operators, who
are paid on a ton-mile basis, and Gallagher. Moreover, it is reason-
ably inferable that Gallagher's independents were not disposed to
hire union drivers, that it would be too expensive and time consuming
to reload steel at Gallagher's terminal on to trucks manned by union
members, and that Gallagher's only alternative would be to cease
using independents for local deliveries. We find that paragraph 9
in conjunction with articles VII and XVII effect a clearly implied
agreement that Gallagher cease doing business with the independent
owner-operators and hence would violate Section 8(e).
Article XXI of the MTLR agreement specifies that an employer,
prior to hiring or leasing equipment from other employers, "shall give
first preference to employers having a contract with a local of the .. .
Teamsters . . . ." This article would force an employer that uses
independent owner-operators to cease dealing with independents until
he had attempted to lease the equipment from every,other employer in
the area having a contract with the Teamsters, and in the event the
equipment and driver are available, not use independents at all. We
find that this contract provision would contravene Section 8 (e).1
Accordingly, we find that by engaging in a strike with an object of
compelling inclusion in a collective-bargaining agreement of para-
graph 9, and articles VII, XVII, and XXI, described above, which
° Calorator Manufacturing Corp , 129 NLRB 704, footnote 2.
932 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are unlawful under Section 8 (e), Respondent violated Section
8(b) (4) (i) and (ii) (A) of the Act. "
Since a further object of the strike necessarily was the forcing of
Gallagher to cease doing business with other persons, we find that the
Respondent also violated the secondary boycott provision in Section
8(b) (4) (i) and (ii) (B) .7
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action, which the Board finds is necessary to,
effectuate the policies of the Act.
Upon the basis of the foregoing and the' entire record, we hereby
reject the Trial Examiner's conclusion of law No. 3 and in its stead
make the following :
CONCLUSION OF LAW
3. By engaging in, and inducing and encouraging employees of
E. A. Gallagher & Sons to engage in, a strike, and by threatening
coercing, or restraining the aforesaid Employer by means of a strike
and picketing, for the purpose of forcing the aforesaid Employer to,
enter into an agreement containing paragraph 9 and articles VII,
XVII, and XXI, set out above, which are prohibited by Section 8(e),.
Respondents have engaged in unfair labor practices within the mean-
ing of Section 8 (b) (4) (i) and (ii) (A) and (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices,
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the Act, as amended, the National Labor Relations Board hereby
orders that Respondent, Highway Truck Drivers and Helpers, Local
107, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Independent, its officers, representatives,
successors, agents, and assigns, shall:
1. Cease and desist from engaging in, or inducing or encouraging
employees of E. A. Gallagher & Sons, Philadelphia, Pennsylvania, to.
engage in, a strike, or threatening, coercing, or restraining the afore-
said Employer by picketing or otherwise, where in either case an
object thereof is to force or require E. A. Gallagher & Sons, Philadel-
phia, Pennsylvania, to enter into any agreement which is prohibited
by Section 8 (e), or where an object thereof is to force or require the
° See Amalgamated Ltthographcr8 of America (Ind ) and Local No 17 of the Amalgam-
ated Lithographers of America (Ind) (The Employing Lithographers, A Divnszon of
the Graphic Arta Employers Association and Lithographers ct Printers National Associa-
tion, Inc.), supra.
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 933
aforesaid Employer to cease'using, selling, lhandling, transporting, or
otherwise dealing in the products of any other producer, processor,
or manufacturer, or to cease doing business with the independent con-
tractor owner-operators used by Gallagher, or with any other person.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in Respondent's business offices and meeting halls, copies
of the notice attached hereto marked "Appendix." 8 Copies of said
notice, to be furnished by the Regional Director for the Fourth Re-
gion, shall, after being duly signed by official representatives of the
Respondent, be posted by Respondent immediately upon receipt
thereof, and be maintained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to members
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notice is not altered, defaced, or covered by
any other material.
(b) Furnish to the Regional Director for the Fourth Region signed
copies of said notice for posting by E. A. Gallagher & Sons, if willing,
in places where notices to employees are customarily posted. Copies
of said notice, to be furnished by the Regional Director, shall, after
being signed by Respondent, as indicated, be forthwith returned to the
Regional Director for disposition by him.
(c) Notify,the Regional Director for the Fourth Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
CHAIRMAN MCCULLOCH and MEMBER BROWN took no part in the
consideration of the above Decision and Order.
8In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES
OF E. A. GALLAGHER & SONS
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, we hereby give notice that :
WE WILL NOT engage in, or induce or encourage employees of
E. A. Gallagher & Sons to engage in, a strike, or threaten, coerce,
or restrain the aforesaid Company by picketing or otherwise,
where in either case an object thereof is to force or require the
aforesaid Company to enter into any agreement which is pro-
hibited by Section 8(e) of the Act, or where an object thereof is
to force or require the aforesaid Company to cease using, selling,
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling , transporting, or otherwise dealing in the products of
any other producer , processor, or manufacturer, or to cease doing
business with the independent contractor owner -operators used
by E. A. Gallagher & Sons or with any other person.
HIGHWAY TRUCK DRIVERS AND HELPERS,
LOCAL 107, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA , INDEPENDENT,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
-It having been charged on January 7, 1960, by E. A. Gallagher & Sons, herein
called Gallagher, that Highway Truck Drivers and Helpers, Local 107, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Independent, herein called the Respondent Teamsters, has engaged in and is engag-
ing in certain unfair labor practices affecting commerce, as set forth and defined in
the National Labor Relations Act, as amended, 61 Stat. 136 (herein called the Act),
the General Counsel of the National Labor Relations Board (herein called the
Board), on behalf of the Board, by the Regional Director for the Fourth Region,
issues a complaint and notice of hearing, dated March 4, 1960, alleging that the
Respondent Teamsters has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(A) and (B),
and Section 2 (6) and (7) of the Act.
In order to properly present the facts of this matter the Trial Examiner must
advert to matters not within the ambit of the complaint herein but which through
testimony became a part of the record.
As hereinbefore found the charge which initiated this proceeding was filed on
January 7, 1960, and an amended charge was filed January 8.
On January 29, 1960, the Regional Director for the Fourth Region of the Board
filed a petition for injunction under Section 10(1) of the Act, as amended, in the
United States District Court for the Eastern District of Pennsylvania.
The petition above referred to alleged that the said Regional Director had cause
to believe and did believe that the Respondent Teamsters, Highway Truck Drivers
and Helpers, Local 107, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, has engaged in and is engaging in
acts and conduct in violation of Section 8(b)(4)(i) and (ii)(A) and (B) of the
Act, affecting commerce within the meaning of Section 2(6) and (7) of the Act.
On February 6, 1960, the Honorable Francis L. Van Dusen, United States District
Judge, issued an order granting temporary injunction which prohibited certain al-
leged illegal conduct by the Respondent Teamsters, "Highway Truck Drivers and
Helpers Local 107, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, its officers, representatives, agents, servants, em-
ployees, attorneys, and all members and persons acting in concert or participation
with it, or them." 1
Thereafter, on February 23, 1960, the honorable court aforesaid having been
advised that E. A. Gallagher & Sons (Gallagher) had since that time in writing
agreed to contract with said Respondent Teamsters and the court being satisfied
that the Respondent Local 107 had complied with the terms of its order dated
February 6, 1960, "ordered that the Temporary Injunction heretofore issued by
',Civil No. 27688.
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 935
this Court be, and is hereby dissolved; this Court, however, retaining jurisdiction
of the parties and the subject matter hereof so that Petitioner may apply for relief
if picketing is resumed at the places of business of E. A. Gallagher Warehousing
Corporation, pending the final disposition of the matters involved pending before
the Board."
Thereafter, as hereinabove found, the complaint herein was issued on March 6,
1960.
With respect to the unfair labor practices the complaint alleged:
Since on or about December 15, 1959, and prior thereto, respondent has been
engaged in a current campaign to force or require Gallagher to partially cease
doing business with the owner-operators.
The complaint next alleged that "to achieve that purpose" the Respondent Teamsters
demanded that Gallagher sign a contract binding Gallagher to certain harsh condi-
tions, and further alleged:
In furtherance and support of its demands set forth above, and to force or
require Gallagher to comply with same, Respondent has, since on or about
January 4, 1960, picketed Gallagher's terminal and warehouse facilities in the
Philadelphia area.
In addition, since on or about January 4, 1960, Respondent has ordered, di-
rected, instructed and appealed to its members employed by Gallagher as over-
the-road drivers as well as city drivers and helpers on an hourly basis, as set
forth in subparagraph 5(a), above to refuse in the course of their employment
to perform services for Gallagher, and said individuals, members of Respondent,
have withheld all services from Gallagher.
Objects of the acts and conduct of Respondent set forth above, were and
are (1) to force or require Gallagher to enter into a contract or agreement
whereby Gallagher would cease or refrain or agree to cease and refrain from
handling, using, selling, transporting, or otherwise dealing in the products
transported or to be transported by the owner-operators, or to cease doing
business with the owner-operators, which agreement is proscribed by Section
8(e) of the Act; (2) to force or require Gallagher to cease using, selling, han-
dling, transporting, or otherwise dealing in the products of and to cease doing
business with the owner-operators; and (3) to force or require other persons
to cease doing business with Gallagher.
The acts of the Respondent Teamsters are alleged to be violative of Section
8(b) (4) (i) and (ii) (A) and (B) of the Act .2
On March 17, 1960, the Respondent Teamsters duly filed an answer, denying that
it had engaged in any of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held before Louis Plost, the duly designated
Trial Examiner, at Philadelphia, Pennsylvania, on April 18, 1960. The General
Counsel, the Respondent Teamsters, and the Charging Party were represented by
counsel, all being hereinafter referred to in the names of their principals. The par-
ties participated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence bearing on the issues, to
argue orally on the record, and to file briefs, proposed findings of fact, and con-
clusions of law with the Trial Examiner.
2 The alleged pertinent sections of the Act provide :
8(b) It shall be an unfair labor practice for a labor organization or its agent-
s • • « s • s
(4)(1) to engage in, or to induce or encourage any individual employed by any
person engaged in commerce or in an industry affecting commerce to engage in, a
strike or a refusal in the course of his employment to use, manufacture , process,
transport , or otherwise handle or work on any goods , articles , materials , or com-
modities or to perform any services ; or (ii ) to threaten , coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in either case an
object thereof is:
(A) forcing or requiring any employer . . . to enter into any agreement which
is prohibited by section 8(e) ;
(B) forcing or requiring any person to cease using, selling, handling , trans-
porting, or otherwise dealing in the products of any other producer , processor,
or manufacturer , or to cease doing business with any other person, . . . .
'936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the opening of the hearing the Trial Examiner granted motions by the General
'Counsel to amend the complaint and by the Respondent Teamsters to amend the
answer.
At the close of the General Counsel's evidence and again at the close of the
hearing the Respondent Teamsters moved to dismiss the complaint. The Trial
Examiner denied the motions.
A date was set for the filing of briefs and findings of fact and/or conclusions of
law, or both, with the Trial Examiner. Briefs have been received from the General
Counsel and the Respondent Teamsters. Upon the record in the case, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
E. E. Gallagher & Sons is, and at all times material hereto, has been, a partner-
ship doing business under the trade name and style of E. A. Gallagher & Sons.
Gallagher maintains its principal office and terminal in Philadelphia, Pennsylvania,
and branch terminals in Beverly, New Jersey, and Dundalk, Maryland. Gallagher
is engaged in the business of warehousing, export packing, and operation of marine
terminals and in operations as a common carrier. Gallagher operates as a common
carrier by motor vehicle pursuant to a certificate issued by the Interstate Commerce
Commission, between and among the State of Pennsylvania and 14 other States
of the United States.
In the course and conduct of its aforesaid business, Gallagher annually receives
revenues in excess of $50,000, for the transportation of goods in interstate commerce.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Teamsters, Highway Truck Drivers and Helpers Local 107,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Independent, is, and has been, at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
As herein set out in the "Statement of the Case" the gravamen of the complaint
is that the Respondent Teamsters "since about December 15, 1959, and prior thereto"
engaged in a campaign to force Gallagher "to partially cease doing business with
owner operators" (none of whom are named), and that in order to force Gallagher
to comply with its demands the Respondent Teamsters since January 4, 1960, picketed
Gallagher's terminal warehouse facilities in the Philadelphia, Pennsylvania, area.
(The picketing was enjoined February 6, 1960, and the order dissolved February
23 on representation that the parties had entered into a contract.)
Owner-operators, as referred to herein, are independent operators of trucks with
whom Gallagher contracts for 30-day periods under Interstate Commerce Commis-
sion regulations.3
Approximately 3 years before the complaint herein was issued May 7, 1957,
Trial Examiner Robert E. Mullin issued an Intermediate Report in Case No. 4-
CC-82, involving the parties herein in which he found that the Respondent
Teamsters struck Gallagher on January 2, 1957, "for the illegal object of forcing
E. A. Gallagher & Sons to cease doing business with independent operators." Trial
Examiner Mullin recommended that the Respondent Teamsters cease and desist from
such illegal conduct. No exceptions were filed to the report which was adopted
by the Board on July 24, 1957 4
Very soon after he began his examination of Arthur A. Gallagher, his only
witness, the General Counsel questioned him as follows:
Q. Are you the same Arthur A. Gallagher who testified in the Board hearing
in 1957?
A. Yes.
Q. Tell me what was the nature of your dispute with 107 at that time?
The Trial Examiner sustained an objection to the question and asked the General
Counsel:
TRIAL EXAMINER: Are we trying this 1957 case or are we trying this Case?
s Testimony of A. B Gallagher.
'The attorney representing the General Counsel in the 1957 case also represented the
General Counsel in .the instant matter.
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 937
The General Counsel answered and was told:
Mr. BURNSTEIN: It is my theory it is a continuation of the same course of
conduct.
TRIAL EXAMINER: You go ahead and prove this case. And then if you have
to refer to the other case, then refer to it afterwards. Don't start with the
other one.
Apparently the General Counsel was unwilling to accept the ruling for in offering an
exhibit he referred to the 1957 case, upon which the Trial Examiner went off the
record to explain his position on evidentiary matters thereafter summarizing his
off-the-record remarks for the record, stating inter alia:
The Trial Examiner also stated that we are not trying a case here in 19-we are
not trying a 1957 case, of which I have been asked to take judicial notice. But
we are trying a case now on the pleadings.
I ask you to govern yourself accordingly.
After this statement the General Counsel said on the record-
But General Counsel takes issue and objection to the Trial Examiner's
comment that what happened in 1956 and what happened in between 1956 and
1960 is not relevant in the sense that the Board always looks at the background
of a labor dispute. And that is just what General Counsel is trying to adduce
now.
The admission by the General Counsel that the 1957 case was merely to be used as
"background" should have ended the matter, unless of course the evidence showed a
continuous course of illegal conduct from 1957 to the filing of the instant charge,
which it did not, quite the contrary; however, the General Counsel is evidently one
who does not give up, for the second paragraph of the brief he submitted to the
Trial Examiner reads:
The Charging Party in the instant case is that same entity that was the Charg-
ing Party in Case No. 4-CC-82, which is dealt with in the IR under discussion.
General Counsel requests the Trial Examiner here to take judicial notice of
and be bound by the findings of fact and conclusions of law relating to Case
No. 4-CC-82 to the extent that such are material, relevant and related to the
instant case.
The brief argues and refers to the 1957 facts in considerable detail.
Perhaps because of the flattering statement that a Trial Examiner take "judicial
notice," the Trial Examiner will do his best to heed the request that the 1957 findings
in Case No. 4-CC-82 be considered "-to the extent that such are material, relevant
and related to the instant case," bearing in mind the language of the Supreme Court
in Local Lodge No. 1424, International Association of Machinists, AFL-CIO, et al.
v. N.L.R.B. (Bryan Manufacturing Co.), 362 U.S. 411 at 417, wherein the Court
in discussing a situation in which an unfair labor practice could be charged only
through reliance on an earlier unfair labor practice says: "There the use of the earlier
unfair labor practice is not merely `evidentiary' since it does not simply lay bare a
putative current unfair labor practice. Rather, it serves to cloak with illegality that
which was otherwise lawful. And where a complaint based upon that earlier event
is time-barred, to permit the event itself to be so used in effect results in reviving a
legally defunct unfair labor practice."
The Court here was concerned with the 6-month limitation of Section 10(b), but
the analogy is pertinent.
Arthur A. Gallagher, one of the partners in E. A. Gallagher & Sons, testified that
he has represented Gallagher in labor matters "for about 15 years," during which
time he dealt with the representatives of the Respondent Teamsters, Vice President
Edward Battisfore and Business Agent Berman, for certain of Gallagher's employees
represented by the Respondent Teamsters.
The record discloses that the Respondent Teamsters bargain with various em-
ployers through an employer organization called Motor Transport Labor Relations,
Inc. (MTLR). The employers who are not members of MTLR or who do not sign
the contract between MTLR and the Respondent Teamsters but whose employees
are represented by them are asked to sign a letter binding themselves to the MTLR
or "Master" agreement insofar as the agreement is applicable to them.
Gallagher testified his firm "operated" -under "an exchange of letters" which he
insisted did not constitute a signed contract. However he testified-
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER: Was -there ever a time that you operated without an ex-
change of letters and without a signed contract, without some sort of memoran-
dum signed between you and the Union? One of the three?
The WITNESS: No.
It is quite clear, and the Trial Examiner finds that Gallagher has been party to a
collective-bargaining contract with the Respondent Teamsters for at least the past
15 years, moreover the parties are in agreement that from 1957 until the end of 1959
a "letter agreement" bound them in collective-bargaining matters.5
Gallagher further testified that about November 14, 1958, he received a letter 6
from the Respondent Teamsters which read:
E. A. GALLAGHER & SONS,
Pier #3, No. Delaware Ave.
Philadelphia 6, Pa. Wilm Opr.
(Att. Mr. Art Gallagher.)
NOVEMBER 14, 1958.
Enclosed please find two copies of the Master Agreement between your com-
pany and Highway Truck Drivers and Helpers Local 107 together with two
copies of the Agreement and Declaration of Trust governing the Teamsters
Pension Fund of Philadelphia and Vicinity.
The enclosed collective bargaining agreement is .the Master Contract covering
this area setting forth the wages, hours and conditions of employment of your
employees. You will recall that you have already signed a letter binding your
company to the area terms and conditions.
Will you kindly sign one copy of this agreement on page 16 thereof and
return it to this office. The additional copy is for your files. Will you also sign
one copy of the Agreement and Declaration of Trust on the last page thereof
and immediately return it to this office keeping the additional copy for your files.
Very truly yours
[s] Raymond Cohen,
RAYMOND COHEN,
Secretary-Treasurer and Business Manager.
The parties agree that the letter is a form sent to various employers at the same
time. The "agreement" 7 referred to and the "trust agreement" 8 which relates to a
pension fund was also received by Gallagher.
Gallagher testified that since 1957 the Respondent Teamsters did not contact him
regarding his business relations with "owner operators." He testified:
Q. (By Mr. BURNSTEIN.) Directing attention to General Counsel's Exhibit
3-A, 3-B, and 3-C, is that-would that be the first time you heard from the
Union after your prior dispute with them? That is, in regard to this subject?
That is the letter,'I believe, of 1958?
A. November 14, 1958, in Exhibit 3-A, was the first word from the union.
Q. All right. You have already told me you received the documents on or
about the time indicated on the letter. Did you sign and return them pursuant
to that letter?
A. No.
that "over the years" Gallagher never signed the "Master" or MTLR agreement but
agreed to abide by the Respondent Teamsters scale of wages, vacations, and holi-
days; that on February 4, 1959, he received a form letter from the Respondent
Teamsters which referred to the November 14, 1958, form letter previously sent him
and asked Gallagher to comply with the requests made therein. Gallagher testified:
Q. (By Mr. BURNSTEIN.) Did you comply with that letter?
A. No.
Gallagher further testified that upon a request by the Respondent Teamsters he met
with Union Representatives Battisfore and Berman in July 1959; that at this meeting
"I believe Mr. Battisfore asked me to sign the [MTLR] contract" after which state-
ment he further testified:
I told him a number of things in the contract that were illegal and if we
were to sign the contract we would have to stop doing business with the inde-
pendent contractors.
See General Counsel's Exhibit No 2.
8 General Counsel's Exhibit No 3-A.
7 General Counsel's Exhibit No. 3-B.
8 General Counsel's Exhibit No. 3-C.
HIGHWAY TRUCK DRIVERS & HELPERS , LOCAL 107, ETC. 939
We went over the contract for, I would say, an hour. And it was finally
agreed that we would turn the matter over to attorneys, Mr. Obert and Mr.
Markowitz.
He testified that from the time of this meeting until September 28, 1959, he has no
further communication with the Respondent Teamsters, that he then received an-
other from letter (dated September 28, 1959) from the Respondent Teamsters 9
which stated that the letter constituted 3 months' written notice of intention to ter-
minate the existing collective-bargaining agreement; that thereafter under date of
December 21, 1959, the Respondent Teamsters sent Gallagher a letter 10 in which
the proposed terms sought for the new "master" or MTLR agreement were set out,
the "next to the last paragraph" of the letter read:
We are asking you to agree to these wages, hours and working conditions in
order to continue our collective bargaining relationship without interruption
after the expiration of our contract. Of course if our master negotiations
result in any different changes in our existing collective bargaining agreement
with you, your signature to this letter will indicate your approval of such
different changes. In other words, you are agreeing herein to effectuate the
changes in our current bargaining agreement which will be the same as the
changes applicable to all employers in the area.
Gallagher made no reply to the letter.
On December 31, 1959, Business Agent Berman requested a conference with
Gallagher and a meeting was arranged for January 2, 1960, at which time Gallagher
and his attorney met with Berman, Battisfore, and the Respondent Teamsters'
attorney. According to Gallagher's testimony:
We discussed the contract. We asked the Union at that time if they wanted us
to sign the letter of December 21; if they would give us assurance that they
would not interfere with the independent operations. Because if we were to
sign the agreement the way it was written, there was no question that we would
have to stop doing business with the independent operators.
that he also objected to "provision Number 9" in the December 21, 1959, letter,
which reads:
9. Article VII of the current contract shall be amended so as to provide in
addition that it is the Operator's obligation to see that all trucks arriving in this
area from over the road are brought to the terminal before making any delivery
or pickup unless otherwise agreed upon.
that he asked that the paragraph be "knocked out of the letter" but the request was
refused. The meeting ended with an agreement to meet again the next day. Ac-
cording to Gallagher's direct testimony: -
- Q. (By Mr BURNSTEIN.) And there were certain changes made based on
the fact that there had been some MTLR negotiations that changed certain lan-
guage or certain provisions?
A. Yes.
Q. Then Article by Article you went over what was acceptable to you and
what was acceptable to the Union?
A. Yes.
On cross-examination the bare bones so revealed on direct were "fleshed out."
Gallagher then testified:
Q (By Mr MARKOWITZ.) Now, at the meeting of January 3, 1960, didn't
Mr Berman and Mr. Battisfore tell you that they would agree to delete para-
graph 9 from that document?
A. Yes.
Q. And after they told you that didn't you then say to them that you were
objecting to the next to the last paragraph of this letter or agreement marked
General Counsel's Exhibit 7?
The WITNESS: Because they wanted us to stop doing business with the in-
dependents, and they told us that the-that in their negotiations with MTLR,
they were going to write in a clause that would eliminate the use of independ-
ent operators or bring the trucks into the home terminal. .
9 General Counsel's Exhibit No. 6
10 General Counsel's Exhibit No 7.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following this Gallagher then testified:
Q. (By Mr. MARKOWITZ.) Didn't Mr. Berman and Battisfore tell you that
they were not interested in your owner-operators?
A. Yes.
Q. Didn't they tell you that any contract you had with them wouldn 't refer to
your owner-operators?
A. Well we put it a little different. We said we wanted something in writing.
Q. Well I am asking you didn't they tell you?
TRIAL EXAMINER: Before that? Did they tell you that before you told them?
Did they make the statement that they weren't interested in the owner-operators?
The WITNESS: They made that statement but I told them I didn't believe them.
Gallagher was then asked:
Q. (By Mr. MARKOWITZ.) Mr. Gallagher, isn't it true that you were con-
cerned about the fact that MTLR might agree to some clause which would hurt
your operations or affect your operations , you thought, which you thought would
affect your operations?
His answer was:
A. Yes, any clause that would stop me from doing business with the inde-
pendent contractors I was worried about.
With respect to the July 1959 meeting and the January meeting referred to in
Gallagher's testimony, Edward Battisfore, the vice president of the Respondent
Teamsters, testified that at the July 1959 meeting, which was the only meeting be-
tween the parties in 1959, the matter of the use of owner-operators by Gallagher was
not discussed and no demand was made that trucks moving material for Gallagher,
first enter a central terminal before making a final delivery.
The Trial Examiner on the entire record considered as a whole as well as Galla-
gher's preface to his account of the meeting that "I believe Mr. Battisfore asked me to
sign the contract" accepts Battisfore's account of the July 1959 meeting between
the parties as the more accurate version.
With respect to the January 2, 1960, meeting Battisfore testified:
Q. Would you tell us first briefly what was discussed at the January 2d
meeting?
A. Well, the primary purpose of the January 2d meeting was to have Arthur
Gallagher sign the letter that was sent to 4-or 500 other independent operators.
Q. Did Mr. Gallagher ask you on that date if the Union was going to inter-
fere with his owner-operators?
A. I believe he did.
Q. What was your answer to him?
A. The answer was the same as it had been for the last two or three years,
or since the Board made a ruling that there was nothing we could do about the
owner-operators and we weren't interested in their owner-operator problem.
Q. Did any representative of the Union tell him he would have to stop doing
business with owner-operators if he signed the contract?
A. No.
As to the January 3 meeting , Battisfore testified that the principal discussion re-
_ lated to article 9 of the December 21, 1959, letter sent Gallagher by the Respondent
Teamsters, which referred to trucks coming into a central terminal before final
delivery; that Gallagher objected to the paragraph; that the Respondent Teamsters
agreed to delete it; and that Gallagher then agreed to sign.
Battisfore further testified:
TRIAL EXAMINER: No. We are talking about the meeting now. At this meet-
ing on the 2d or 3d. Did you tell Mr. Gallagher that you would not insist or
ask that the trucks or the equipment be turned over to members of your union
when they arrived at the terminal?
The WITNESS: No, because we didn't have a right to tell them. The Board
took that right away from us.
TRIAL EXAMINER: The answer is you didn't tell them.
The WITNESS: That' is right.
Battisfore testified that in all negotiations the matter of utilization of owner-
operators is raised . He testified:
HIGHWAY TRUCK DRIVERS & HELPERS, LOCAL 107, ETC. 941
I think we talked about that. Utilization of owner-operators has been open
for 25 years and it will probably be open for 50 more.
It is something that will never be a closed issue.
We have never abandoned our effort. But it is the first "no" we get in every
contract negotiations that is practically the first item under the table. -
'During Battisfore's examination the Respondent Teamsters sought to adduce testi-
mony that the Respondent Teamsters has contracts with other trucking companies in
the area who use the services of owner-operators without the protest of Respondent
Teamsters because:
Mr. MARxowrrz: No, it seems logical for you to conclude on the basis of
that fact that it certainly wasn't local 107's intention to force Mr. Gallagher to
cease doing business with owner-operators if it didn't intend to force other firms
to cease doing business with owner-operators which signed exactly the same
documents that Mr. Gallagher was asked to sign.
to which the Trial Examiner in refusing to take the testimony stated:
TRIAL ExAMINER: It is also logical for me to conclude, and having in mind
the Supreme Court's doctrine of clear and present danger and the Japanese
doctrine of unfair and seditious thought, that in all such matters we can not
make an unfair labor practice out of something that a fellow thought he was
going to do next week, next month, next year, the day after tomorrow.
I am not going to take any evidence on it, whether he wanted to do it or didn't
want to do it, one way or the other.. . .
Despite all the "sound and fury" and heat generated during the hearing the light
shed by what was in reality mutually corroborative testimony of Gallagher and
Battisfore clearly disclosed that from 1957 until close of the January 3, 1960, meet-
ing between Gallagher and the Respondent Teamsters the Respondent Teamsters had
not demanded of Gallagher that he cease doing business with owner-operators
(named or not, known or unknown), and it is equally clear that in order to quiet
the fears, Gallagher claimed to have, that at some future date the Respondent
Teamsters might contract with a third party, in such a manner as to effect Galla-
gher's relationship with owner-operators as a class, the Respondent Teamsters
deleted a paragraph in a "letter contract" which it offered to Gallagher and to which
Gallagher objected as designed to prohibit his contracting with owner-operators.
Battisfore testified that on the day after their last meeting, namely on January 4,
1960, the Respondent Teamsters struck and picketed Gallagher "because he refused
to sign."
The Trial Examiner cannot refrain from remarking that had the Respondent
Teamsters remembered the Act they might well have charged Gallagher under Sec-
tion 8(a)(5) thereof and perhaps avoided "self help." Be that as it may, the Trial
Examiner is not at all persuaded on the evidence herein that in "picketing Galla-
gher's terminal and warehouse facilities in the Philadelphia area on and after January
4, 1960" Highway Truck Drivers and Helpers, Local 107, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, has
engaged in and is engaging in certain unfair labor practices affecting commerce, as
alleged.
Conclusion
Upon all the evidence considered as a whole it strikes the Trial Examiner that
this whole matter is the result of "giving a dog a bad name." ii Because of a "bad
name" Gallagher apparently was beset by useless fears, refusing to believe that once
having had the law declared to it in a certain matter the Respondent Teamsters
would thereafter respect it.
The Trial Examiner recalls that in the rural America of his boyhood dogs were
accused of and often did kill sheep. Such killers were shot by the sheriff. The Trial
Examiner had a valued canine friend and companion who was accused by a neigh-
bor of killing his sheep. The sheriff was called but he refused to shoot the dog, not
because he was unduly moved by a boy's tears and protests but because after looking
u The Trial Examiner, recalling the resentment made evident at the time a former
Secretary of Defense drew an analogy from certain habits attributed to dogs while be was
discussing a matter affecting labor, hastens to assure the parties herein and any other
person who may read this report that he means no offense but feels that an example
drawn from his boyhood in a rural America no longer extant will be -apt.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into my dog's mouth he announced his judgment: "I won't shoot a dog for killing
sheep unless I find wool between his teeth."
Upon the record as made the Trial Examiner finds that the evidence does not
support the General Counsel's contention that the Respondent Teamsters has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
s(b) (4) (i) and (ii) (A) and (B) of the Act, which section proscribes so-called
secondary boycotts and other secondary pressure to require another employer to
cease dealing in the products of or to cease doing business with any other person.
The Trial Examiner therefore finds that the strike and picketing of Gallagher by
the Respondent Teamsters was entirely legal and in no way violative of the Act and
having so found further finds it entirely unnecessary to advert to any of the other
matters touched upon in the conduct of the hearing.
With respect to the various demands the complaint alleges to have been made by
the Respondent Teamsters in order to "achieve the purpose of forcing Gallagher" to
cease doing business with owner-operators as a class, the Trial Examiner, again
recalling his youth, points out that collective bargaining is akin to "horse trading" in
which every windbroken, spavined, short-toothed nag was touted as a child of Dan
Patch and "boot" consisting of the moon and sixpence was always asked as a matter
of course.
Final Conclusion
Upon a review of the entire record in the case, and upon all the evidence consid-
ered as a whole, the Trial Examiner is persuaded that the evidence adduced by the
General Counsel does not sustain the allegations of the complaint that the Respond-
ent has engaged in unfair labor practices within the meaning of the Act. The Trial
Examiner will therefore recommend that the complaint be dismissed in its entirety..
Upon the basis of the foregoing findings, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Highway Truck Drivers and Helpers , Local 107, International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America , Independent, is a
labor organization within the meaning of Section 2(5) of the Act.
2. E. A. Gallagher & Sons is engaged in activities affecting commerce within the
meaning of the Act.
3. The Respondent Teamsters have not engaged in unfair labor practices within
the meaning of Section 8(b) (4) (i ) and (ii) (A) and (B) of the Act.
[Recommendations omitted from publication.]
Plumbers & Pipe Fitters Local Union 214 [D. L. Bradley Plumb
ing and Heating Co.] and H. Maynard Hall. Case No. 13-CB-
863. June 2, 1961
DECISION AND ORDER
On October 25, 1960, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending 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 Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
131 NLRB No. 122.