Before DUFFY, KNOCH and CASTLE, Circuit Judges.
DUFFY, C. J.: This is a petition to review and set aside an order of the National Labor Relations Board (Board) which dismissed a complaint issued by the General Counsel pursuant to charges filed by petitioner (Company). The complaint was against General Local 200, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. The decision and order of the Board are reported at 126 N.L.R.B. No. 80 (Feb. 15, 1960).
Petitioner, Milwaukee Plywood Company, has its plant at Milwaukee, Wisconsin. It is a wholly-owned subsidiary of Aetna Plywood and Veneer Company of Chicago (Aetna Plywood). The employees at Aetna Plywood's warehouse in Chicago are represented by Local 743, Warehouse and Mail Order Employees Union, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Petitioner's warehouse and truck driving crews were represented jointly by Local 1582, United Brotherhood of Carpenters and Local 200, Teamsters. Petitioner, as a member of a multi-employers bargaining association, had negotiated through the Association a single joint contract with these Unions. Local 200 also represents truck drivers employed by other companies in the Milwaukee area.
On July 22, 1958, Local 743 commenced a strike against Aetna Plywood, and established a picket line at its plant in Chicago. On August 4, 1958, Local 743 began picketing petitioner's plant at Milwaukee. Some of the pickets carried or wore signs which read, "Notice to Public, Aetna Plywood Chicago, on Strike, Teamsters Local 743, Chicago, Illinois." For two days, on August 5 and 6, petitioner's warehousemen declined to cross the picket line at Milwaukee. However, the next day they returned to work.
Members of Local 200 appeared from time to time on the picket line to relieve regular pickets. Lemke, vice president of Local 200, participated at least on one day.
In making its charges, the Company also relied upon several other incidents. Members of Local 200 who were employees of carriers which customarily served the Company, were instructed by officers of Local 200 not to go through the picket line at the Milwaukee plant. Similar advice was given by telephone by officers of Local 200. These conversations were initiated by truck drivers who had been stopped at the picket line, and who had either called their union office by telephone or who had personally visited that office. There were also two occasions on which Local 200 officers or employees talked directly with the management of other trucking firms about respecting the picket line at Milwaukee.
The Board, in agreement with the trial examiner, concluded that although Local 200 had participated in the picketing at Milwaukee Plywood and had independently induced employees of trucking firms not to cross the picket line, the record did not establish a violation of Section 8(b)(4)(A) of the Act.
There is no dispute as to the facts. No witnesses were called in the hearing before the examiner. All parties stipulated to the receipt in evidence of the transcript of testimony taken in a hearing before the District Court for the Eastern District of Wisconsin in an action which the Company had brought against Local 743 and Local 200. This was a suit under Section 10(1) of the Act, seeking an injunction against both Locals pending determination by the Board of the instant proceeding. Local 743 was dismissed from the case. On January 27, 1959, District Judge Tehan handed down a decision refusing to issue an injunction. The District Court held the picketing and inducement directed against Milwaukee Plywood by Local 200 was tantamount to activities directed against a primary employer and was not a violation of Section 8(b)(4)(A) of the Act.
In view of the close inter-relationship between petitioner and Aetna Plywood, no point is made that the Board erred in considering them to be, in effect, one employer. We agree the Board was justified in taking that view. The instant case is no different in legal contemplation from the conventional situation where a union sets up a picket line at the premises of an employer with whom it has a dispute.
Congress has specifically guaranteed the right to strike. 29 U.S.C. 163. "* * * Congress did not seek by Section 8(b)(4) to interfere with the ordinary strike * * *." NLRB v. International Rice Milling Co ., 341 U.S. 665, 672. The courts have consistently interpreted Section 8(b)(4)(A) not literally, but "* * * in conformity with the dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own." NLRB v. Denver Building & Construction Trades Council, 341 U.S. 675, 692.
Both sides to this controversy discuss the case of Seafarers International Union v. NLRB, D.C. Cir., 265 F.2d 585. In that opinion the court stated, page 591:
"But it is clear from the rest of the Act, especially from Section 13, that Congress did not intend to forbid picketing at a primary employer's premises, the situs of the dispute. Section 8(b)(4) must be interpreted and not merely read literally."
In DiGiorgio Fruit Corp. v. NLRB, 191 F.2d 642, 649, trucks belonging to various trucking concerns were halted at a picket line by pickets endeavoring to persuade the drivers not to cross the line. The court said, "Such picketing activity is called a primary activity in the language of labor law," and ...