International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America

National Labor Relations Board - Board Decisions

Sep 20, 1950

91 N.L.R.B. 340 (N.L.R.B. 1950)

In the Matter of LOCAL 294, INTERNATIONAL BROTHERI-loon OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,
AFL, AND PETER J. POSTMA and WESTERN EXPRESS COMPANY, INC.
Case No. O-CC-119.Deeided September 20, 11950
DECISION AND ORDER
On February 20, 1950, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had not engaged in unfair iabor.practices as
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. Thereafter, the General Counsel and Western
filed exceptions to the Intermediate Report and supporting briefs.
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 briefs, and the entire record in the
case, and hereby adopts the findings and conclusions of the Trial
Examiner only insofar as they are consistent herewith.,
1. The Trial Examiner found that the Respondents induced and
encouraged Branford's employees to refrain from handling the West-
ern trailer. However, he further found that Section 8 (b) (4) (A) of
the Act was not violated, because the inducement was temporary and
.its object was to give the Respondents an opportunity to learn from
Branford whether the continued use of the trailer violated Section 23A
of the Union's contract with Branford .2 We do not agree.
As the Trial Examiner found, Branford's use of the trailer did not
violate section 23A. Although the Respondents may have thought
otherwise and although one object of the inducement may have been to
permit the Respondents to determine the applicability of section 23A,
' The General Counsel ' s request for oral argument is denied , as the record , exceptions, and
briefs, in our opinion , adequately present the issues and the positions of the parties.
2 As is fully set forth in the Intermediate Report, section 23A reserved to the Union the
right to refuse to accept freight from or make deliveries to struck establishments.
The contract is silent as to freight which is not itself "hot" within this definition, but
which is in trailers lent by other struck carriers , such as western.
91 NLRB No. 45.
340
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 341
another object necessarily was to force Branford to cease doing business
with Western until the determination of the applicability of the con-
tract was made, and the Trial Examiner so found. We find nothing in
the Act itself or in its legislative history which would permit the
establishment of even a temporary secondary boycott where, as here,
there is no applicable contractual provision.3 Accordingly, contrary
to the Trial Examiner, we find that the Respondents' inducement
violated Section 8 (b) (4) (A).
As an additional reason for concluding that the Union did not violate
Section 8 (b) (4) (A) of the Act, the Trial Examiner found that the
record did not establish that Branford's employees were encouraged to
refuse to perform any services on the Western trailer "in the course of
their employment." We cannot agree. The record affirmatively shows
that, because Western employees were then on strike, Branford planned
to depart from its ordinary practice in the case of a full or straight load
such as was here involved, and to direct its employees to unload the
trailer. In fact, Branford had already arranged with a third carrier
to pick up the load and transship it to Syracuse in the trailer of that
third carrier. Uncontradicted testimony shows, and the Trial Exam-
iner found, that Branford's employees were called upon to unload
trailers from time to time as part of their job. The fact that they had
not yet been ordered to unload the particular Western trailer here
involved does not furnish the Union a defense for inducing and en-
couraging them to refuse to unload the trailer when and if called upon
to do so. Indeed, the record discloses that the employees knew that
Branford wanted them to unload the trailer, but they nevertheless
failed to do so.
In view of our finding that the Respondents violated 8 (b) (4) (A),
we find it unnecessary to pass on the Trial Examiner's refusal to
adjourn the hearing in order to take the testimony of Dominick Dastoli.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent Local 294, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, AFL, and its agents, including Peter J. Postma,
shall:
1. Cease and desist from inducing or encouraging the employees of
North Branford Transportation Company, or any other employer, to
engage in a strike or concerted refusal in the course of their employ-
8 Cf. Conway 's Express , 87 NLRB 972.
3:42 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went 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 doing business with Western Ex-
press Company, Inc.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act.
(a) Post at its Albany, New York, business office copies of the notice
attached hereto and marked Appendix A 4 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by a representative of the Respondent, be
posted by said Respondent immediately upon receipt thereof and
,maintained for a period of sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by said Re-
spondent to insure that the notices are not altered, defaced, or covered
by any other material;
(b) Notify the Regional Director for the Second Region in writing,
within ten (10) days after the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER MuRDOC$ took no part in the consideration of the above
Decision and Order.
APPENDIX A
NOTICE TO ALL MEMBERS OF LOCAL 294, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF
AMERICA, AFL
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 notify our members that :
WE WILL NOT induce or encourage the employees of North
Branford Transportation Company or any other employer 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,
4 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words "Decision and Order " the words "Decree of the
United States Court of Appeals Enforcing."
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 343
or to perform any services, where an object thereof is to force or
require any employer or other person to cease doing business with
WESTERN EXPRESS COMPANY, INC.
LOCAL 294, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA,
AFL.
By
of Officer)
Dated------------------------
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 AND RECOMMENDED ORDER
Mr. Warren H. Leland, for the General Counsel.
Mr. Harry Pozefsky, of Gloversville , N. Y., for the Respondents.
bir. Charles D. Johnson , of Baker, Hostetler & Patterson, of Cleveland, Ohio,
for Western.
STATEMENT OF THE CASE
Upon a charge filed on October 13, 1949, by Western Express Company, Inc.,
(herein called Western), the General Counsel of the National Labor Relations
Board,' by the Regional Director for the Second Region (New York, New York),
issued a complaint on December 6, 1949, against the Respondents, Local 294,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL (herein sometimes called the Union), and Peter J. Postma.
The complaint alleged that the Respondents had engaged in and were engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(b) (4) (A) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended (herein called the .Act)' Copies of the complaint, the charge, a
notice of hearing, and a notice of change of time of hearing, were duly served
upon the Respondents and Western.
With respect to unfair labor practices, the complaint alleged that, since on
or about September 15, 1949, the Union and Postma as the Union's vice-
president and business agent, in violation of Section 8 (b) (4) (A) of the Act,
have induced and encouraged and are inducing and encouraging the employees
of North Branford. Transportation Company (herein called Branford) to en-
gage 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 service, an object
thereof being to force or require Branford to cease doing business with Western,
by ordering, directing, and instructing its members to engage in concerted activi-
ties in its behalf, in furtherance of said object.
In their answer to the complaint, the Union and Postma admitted some of
the allegations of the complaint, but denied that either of them had committed
1 The General Counsel and the staff attorney appealing for him at the hearing are herein
referred to as the General Counsel, and the National Labor Relations Board as the Board.
2 61 Stat. 136.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices. The Union and Postma also asserted in their answer
the following five "separate and distinct defenses" (1) That the acts attributed
to them by the complaint were legal since they were permitted by, and justified
under, the Union's existing separate agreements with both Western and Bran-
ford;' (2) that the "inducement and encouragement" charged against them
by the complaint were "addressed" to Branford, as employer, and not to its
employees;. (3) that the acts attributed to them by the complaint were com-
mitted in the proper exercise of "the right to strike and to participate in a
labor dispute," as guaranteed by the Act; (4) that the injury to them which
would result from an injunction "would create a far greater hardship" than
the "small and inconsequential" "damage . . . if, any" to Western from a de-
nial of the relief sought; and (5) that "the competent producing cause[s] of
the acts [of the Respondents] complained of in the complaint" were Western's
refusal to reinstate, and its lockout of, employees in violation of the Act and
of an agreement made by it with the Union and the Board on March 12, 1949,
in settlement of prior charges of unfair labor practices filed against it by the
Union.
Before the hearing in the present case was held, the General Counsel in-
stituted a proceeding under Section 10 (1) of the Act in the United States
District Court for the Northern District of New York, seeking an injunction
against the Respondents pending a decision by the Board in the present case.
The injunction proceeding was tried on November 29 and 30, 1949, before Judge
Stephen W. Brennan, who, on January 11, 1950, issued an opinion in which,
after considering the evidence, he stated :
The relief deemed just and proper in this proceeding, as authorized by
the Act, is afforded by retaining this proceeding upon the docket of this
Court, with the right of the parties to apply for permission to offer addi-
tional evidence in the event that a charge of unfair labor practice of a
similar nature is filed against the respondents, which. is deemed sufficient
to justify the granting of injunctive relief. (Dov.d8 v. Wine, Liquor &
Distillery Workers Union, etc., 75 F. Supp. 447).
Pursuant to notice, a hearing was held in the present case at Albany, New
York, on January 31, and February 1, 1950, before the undersigned Trial
Examiner designated by the Chief Trial Examiner. The General Counsel,
Western, and the Respondents participated in the hearing. and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. At the beginning of the hearing,
the undersigned denied a motion by Respondents' counsel to strike the com-
plaint. During the course of the hearing, the undersigned granted a motion by
Western's counsel to strike from the Respondents' answer, the "Fifth Separate
and Distinct Defense."' After' all available evidence had been adduced by
the parties, the General Counsel made a motion to adjourn the bearing for the
purpose of later taking the testimony of one Dominic Dastoli, who had been
subpoenaed but had not appeared as a witness for the General Counsel. After
a statement by the General Counsel of the substance of the proposed testimony
of Dastoli, the undersigned, being of the opinion that such testimony was
immaterial, denied this motion.
8 The "hot cargo" clause thus referred to in the answer , is hereinafter quoted at length
in the discussion of the facts of this case.
' Item 5 in the enumeration of these defenses , supra.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC . 345
At the end of the hearing, the General Counsel, counsel for the Respondents,
and counsel for Western orally submitted their argument upon the issues.
Although the undersigned then advised counsel of their right to file briefs and
requests for findings of fact and conclusions of law within 15 days, none has
been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. COMMERCE
Western Express Company, Inc., a corporation of the State of Ohio, maintains
its principal office and place of business in Cleveland, Ohio, and terminals at
Cleveland, Ohio;, Erie, Pennsylvania ; Albany, New York ; Utica, New York ;
Pittsfield, Massachusetts ; and Springfield, Massachusetts. It is an over-the-road
common carrier of general commodities in interstate commerce to and from,
and between, the aforementioned cities. It operates under a certificate issued
by the Interstate Commerce Commission and transports approximately 1,000,000
pounds of freight each day. During the year 1948, Western' s gross revenue
exceeded $3,000,000.
Fidelo Secondino, an individual doing business at North Branford Transporta-
tion Company, maintains its principal office and place of business • at North
Branford, Connecticut, where it is engaged in the business of an. interstate
motor carrier operating from, to, and between Waterbury, Connecticut; Albany,
New York ; Schenectady, New York ; and Springfield, Massachusetts. During
the year 1948, the gross revenue of this company exceeded $100,000.
The Respondents in their answer admitted, and the undersigned finds, that
Western Express Company, Inc. and North Branford Transportation Company
are engaged in commerce within the meaning of the Act.
II. THE RESPONDENTS
Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, is a labor organization within the meaning
of the Act. Peter J. Postma is its vice president.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Between June 27, 1949, and September 19, 1949, during a dispute between
Western and the Union as the collective bargaining representative of Western's
truckdrivers, the truckdrivers who worked for Western out of its terminal at
Albany, New York, stopped work and picketed that terminal. The dispute and
the stoppage at the Albany terminal continued and were still current at the
time of the hearing in the present case. They did not extend , however, to those
of the employees who worked out of Western 's Springfield , Massachusetts,
terminal , and who were not represented by the Union.
At the time of the events in the present case, the Union represented the
truckdrivers of Branford with whom the Union has had no dispute. However,
section 23 A of its collective bargaining contract with Branford, executed on
August 1 , 1948 and effective until August 1, 1950, provided that :
The Union reserves the right to refuse to accept freight from, or to make
pickups from or deliveries to establishments where picket lines, strikes,
walkouts, and lockouts exist.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about September 17, 1949, Branford delivered one of its 4railers to
Western at Springfield, Massachusetts, and, in return, received one of Western's
trailers. This exchange of trailers (or boxes, or bodies, as they are also called) is
a common practice among motor carriers, similar to that of the railroads in
exchanging box cars. Fidelo Secondino, Branford's proprietor, could not re-
member (nor was there any other evidence) whether the Branford trailer de-
livered to Western, or the Western trailer delivered to Branford, contained any
freight at the time of their exchange.
The Western trailer thus received by Branford on or about September 17,
was hauled by a Branford driver and tractor from Springfield to North Branford,
Connecticut, Branford's home terminal, and then to New Haven, Connecticut.
There it was loaded at the plant of B. H. Spinney & Company with a shipment
of sinks for Syracuse, New York. The trailer and freight were then hauled from
New Haven to Waterbury, Connecticut, by a driver and tractor of the Thomas
Secondino Company, whose proprietor is a brother of Branford's proprietor.
From Waterbury, the haulage was by Branford's drivers and tractor to Bran-
ford's terminal at Albany, New York, where the trailer arrived between 3 and 4
o'clock in the morning of September 20.
The undersigned finds, upon the testimony of Fidelo Seconding, Branford's
proprietor, that, in accordance with normal procedure, Branford would then have
arranged for the haulage by Western of the Western trailer and its load from
Albany to Syracuse, but that, because of the dispute between Western and the
Union, arrangements had been made by him to have the trailer and its load
carried to Syracuse by the Gorea Motor Line.
Branford employed only three truck drivers out of its Albany terminal. Two of
them were local drivers who made local pickups and deliveries, and the third
was an over-the-road driver. Clinton Mitchell, one of the two local drivers,
testified without contradiction and the undersigned credits his testimony, that at
times he loaded or unloaded trailers, but that it was not his job to unload 'the
Western trailer when it came into the Albany terminal on September 20, because
it was a "straight load."
All three of Branford's drivers at Albany were members of the Union. Al-
though the group was too small for the Union to designate any one of the drivers
as a steward or acting steward. Driver Mitchell had undertaken at times to
present complaints on behalf of members of the group both directly to Branford
and also through the Union, thus coming into contact with the Union's vice presi-
dent, Peter J. Postma, and its secretary-treasurer, Bob McCall. Furthermore,
union communications to members were customarily mailed to Mitchell who,
although not a shop steward, was for this purpose on the Union' s mailing list.
After the Western trailer was deposited at Branford's Albany terminal on
September 20 and shortly before 8 o'clock that same morning , Vice-President
Postma of the Union made a telephone call to the terminal. Driver Mitchell
answered the telephone in the absence of Terminal Manager Cooper. Upon
Mitchell's identifying himself, Postma said, "Don't touch the [Western] body until
I talk with Cooper."
When Cooper came into the terminal at about half past eight that morning,
Mitchell told him that Postma had tied up the Western body. Postma called
Cooper several times in the next few days but was unable to reach him. Then,
on or about September 22, Cooper telephoned Postma and requested Postma to
release the trailer. Postma refused, saying that " Secondino knew that Western
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 347
was on strike and should never have sent [the trailer] to Albany in the first
place." So far as the record discloses, this was their entire conversation.'
There was no other communication between Branford and the Union con-
cerning the trailer and it remained at Branford's Albany terminal with its freight
for 4 or 5 weeks. Moreover, during that time, according to Cooper's testimony,
although he once asked Mitchell whether he would unload the trailer, he did so
"kiddingly."
B. Conclusions
The question to be decided in the present case is whether, under the circum-
stances outlined, the Union and Postma, as its agent, violated Section 8 (b) (4)
(A) of the Act, through Postma's statement to Mitchell on the morning of
September 20, "Don't touch the [Western] body until I talk with Cooper." Or,
to put the question in the phraseology of Section 8 (b) (4) (A), did this state-
ment by Postma to Mitchell "induce or encourage the employees of [Branford]
to engage in . . . a concerted refusal in the course of their employment . . .
to perform services" in connection with the Western trailer or its freight,
for the purpose or "object" of "forcing or requiring" Brandford "to cease doing
business" with Western?
Urging a negative answer to this question, the Respondents argue in substance
that Postma intended to dissuade Branford, and not its employees, from further
handling the Western trailer; that Postma, in,effect, asked Mitchell merely to
transmit this message to Manager Cooper ; that his statement to Mitchell, there-
fore, was obviously not calculated to induce or encourage Mitchell or any of
his fellow employees to refrain from performing any services ; and that, even
if his statement to Mitchell be regarded literally as inducement or encourage-
ment of Mitchell, it did not also constitute inducement or encouragement of
other employees of Branford. If this interpretation of the facts in the case
were sound, there would, of course, be no violation of Section 8 (b) (4) (A),
since that subsection of the statute forbids only the inducement or encouragement
of employees to engage in concerted refusals to perform services for certain
specified improper objectives and not the inducement or encouragement of a
single employee 8 or even the direct coercion of an employer to attain the same
ends.'
But the undisputed facts are not susceptible of the interpretation thus urged
by the Respondents. It may be true that, when Postma placed his telephone
call to Branford's terminal, he intended to speak to Manager Cooper, and through
Cooper, to persuade Branford rather than its employees, not to continue handling
the Western trailer and its freight. But, in Cooper's absence, instead of asking
Mitchell merely to transmit either such a, message to Cooper 8 or a simple request
5 The finding that Postma unsuccessfully telephoned Cooper several times, is based upon
Postma ' s testimony . The finding concerning the eventual telephone conversation between
the two men , which Postma recalled but not in detail, is based upon Cooper's testimony.
e Gould d Preisner, 82 NLRB 1195.
4 Sealright Pacific, Ltd ., 82 NLRB 271 ; International Brotherhood of Electrical Workers,
Local 501, AFL (Samuel Langer ), 82 NLRB 1028; International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Local 294, A . F. of L. (Henry V.
Rabonin, d/b/a Conway's Express ), 87 NLRB 972.
8 The undersigned expresses no opinion as to whether, under some circumstances, the
communication by a union to an employer through its employees, of a request that the
employer refrain from handling "hot" cargo , might not constitute inducement. and encourage-
ment of the employee -messengers contrary to Section 8 (b) (4) (A) of the Act . Suffice
to say, that was not the situation in the present case.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Cooper call him, Postma told Mitchell not to touch the Western trailer
until Postma could discuss the matter with Cooper. Mitchell was not a super-
visor or' a managerial representative and Postma's explicit direction that
Mitchell should not handle the Western trailer must therefore be viewed, not as
the originally intended attempt to dissuade Branford, but as encouragement of
Mitchell as one of Branford's employees to refrain at least temporarily from
the performance of any service in connection with the Western trailer. Further-
more, in view of Mitchell's customary role as transmitter of the Union's messages
to his fellow drivers and union members, Postma's statement must be regarded
as having been intended not only for Mitchell but also for his fellow employees
and thus, as constituting encouragement of all of them not to perform any
services in connection with the Western trailer until Postma spoke to Cooper.
The Respondents apparently contend that the mere use of Western's trailer
by Branford on this single exchange. of trailers did not constitute "business"
between them and, therefore, that the Respondents' opposition thereto cannot
be regarded as having as its object the forcing or requiring of Branford "to
cease doing business" with Western within the meaning of Section 8 (b) (4) (A)
of the Act ° Just what the basis of this contention might be is not clear from
the record unless they be (1) that in using Western's trailer, Branford was not
doing business with Western, but doing business for Western, i. e., by carrying
Western's freight during its difficulties with the Union; l° (2) 'that there was
no arrangement for pecuniary compensation or profit flowing from the .exchange
of trailers; and (3) that there was no prior established practice of exchange.
between these two particular carriers and, therefore, no general course of busi-
ness between them which could be interrupted. The undersigned rejects these
arguments. The first has no foundation in the facts of the present case since
the freight carried on the trailer was not Western's freight and there is no
evidence of Western's and Branford's being jointly interested in the operation
of the trailer. As to the other two arguments, the undersigned believes it clear
that the Congress never intended to limit the protection afforded neutral em-
ployers from secondary boycotts by Section 8 (b) (4) (A) of the Act, to business.
relationships with other employers which were established, continuing, and
calculated in and by themselves to show a profit to either of the parties.
We turn now, however, to the points in the present case which convince
the undersigned that the evidence does not support a finding that the Respondents
violated Section 8 (b) (4) (A).
The first of these points is raised by the Respondents' contention that, by its
acceptance of the provisions of. section 23 A of its contract with the Union,
Branford has assented in advance to refusals by its employees to transport or
otherwise handle freight in the trailers of struck employers. They argue, there-
fore, upon the authority of the Board's recent decision in the Conway case,19
(in which an identical contractual provision was construed and applied), that
the Union's inducement and encouragement of Branford's employees not to
° While such a contention was not included in the oral argument of Counsel for the
Respondents at the end of the hearing , it was suggested by remarks made by him in oppo-
sition to the General Counsel's motion to adjourn the hearing so that the testimony of
Dominic Dastoli might be taken ( see Statement of the Case , supra ), and also by certain
lines of his examination of the witnesses.
10 See, for example , Douds v. Metropolitan Architects , 75 F. Stipp. 672 (D . C., N. Y.), and
also the Conway case , supra (with reference to the relationship between Conway Express
and Middle Atlantic Transportation Co.).
11 Supra.
LOCAL 294, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 349
handle the Western trailer or its freight cannot be held to have had as their
"object" the "forcing or requiring" of Branford "to cease doing business" with
Western, but must be regarded, rather, as the exercise by the Union and Bran-
ford's employees of their preexisting lawful right, assented to by Branford in
the contract.
Upon the facts now known and already found in this Report, section 23 A
of the contract did not justify a refusal by Branford's employees to handle the
Western trailer, since the trailer. in fact contained no freight which either was
received from, or was to be delivered to "establishments where picket lines,
strikes, walkouts and lockouts exist[ed]." But this was not known to the
Union when Postma spoke to Mitchell. On the contrary, it was certainly not
unreasonable for the Union and Postma to believe, at least until explained or
denied Branford, that the box might contain freight to be delivered to, or
through, Western's struck Albany terminal, and therefore, fall within section
23 A of the contract.12 Postma's suspicion to this effect and his intention to
rely upon the contract in dissuading Branford directly from further handling
of the box, and not to rely upon employee-pressure, appear both in his statements
to Mitchell on September 20 and to Manager Cooper several days later. Thus,
he directed Mitchell merely not to touch the trailer until Postma could discuss
the matter with Cooper. And, in shortly thereafter explaining the tie-tip to
Cooper, he said that it was because Branford "knew that Western was on strike
and should never have sent [the trailer] to Albany in the first place." Although
Branford could then have explained to Postma the facts which removed the
case from the application of section 23 A, it failed to do so.
Consequently, it appears that, although Postma induced and encouraged
Mitchell and the othei drivers temporarily to refrain from handling the Western
trailer, he did so, not to force or require Branford to stop using the trailer
against its will, but to permit him the effective opportunity to learn from Bran-
ford whether the continued use of the trailer violated section 23 A and if so,
to invoke the contract and to persuade Branford to observe it, It cannot, there-
fore, be assumed that, if Branford had explained the facts to Postma as being
outside section 23 A and had insisted upon its employees' handling the trailer,
the Union or Postma would have encouraged the employees to refuse. The under-
signed accordingly concludes that the evidence does not warrant a finding that
Postma's inducement and encouragement of Branford's employees to refuse to
handle the Western trailer until Postma could speak to Manager Cooper, had
as their "object" "the forcing and requiring" of Branford "to cease doing busi-
ness" with Western in violation of Section S (b) (4) (A).
There is an additional reason for concluding that the evidence does not dis-
close a violation of Section S (b) (4) (A) of the Act. While it has been found
that the Respondents induced and encouraged Branford's drivers concertedly
to refuse to handle the Western trailer until Postma spoke to Manager Cooper,
it does not appear, as required by Section S (b) (4) (A), that they would have
been called upon to do so "in the course of their employment." As Mitchell
credibly testified, the drivers were not called upon to unload a full trailer, such
as the Western trailer, which had not reached its destination. Furthermore,
as Secondino testified, he had arranged with another carrier to haul the trailer
13 In this connection, it will be recalled that it has been found upon Fidelo Secondino's
testimony , that in the normal interlining of a full load on another carrier's trailer, Bran-
ford would have delivered the-trailer with its load to the owner -carrier ( in this case
Western ) for further carriage.
350 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Albany to Syracuse. The record therefore does not support any finding
as to what "services" Branford's employees were encouraged to refuse to perform
"in the course of their employment."
For the foregoing reasons, the undersigned concludes that the evidence war-
rants no finding that the Respondents committed unfair labor practices within
the meaning of Section 8 (b) (4) (A) of the Act and will therefore recommend
that the complaint be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Western Express Company , Inc. and Fidelo Secondino , an individual doing
business as North Branford Transportation Company, are engaged in commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
2. Local 294 , International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , AFL, is a labor organization within the meaning'
of Section 2 (5) of the Act.
3. The aforesaid Local 294 and Peter J. Postma, its vice president , have not
engaged in unfair labor practices within the meaning of the Act.
[Recommended Order omitted from publication in this volume.]