Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
This is a labor relations board case. It comes up after a preliminary injunction in an action brought by the director of the fourth region on behalf of the National Labor Relations Board.*fn1 The injunction was rendered pursuant to the provisions of section 10(l) of the National Labor Relations Act as amended, 61 Stat. 136 (1947), 29 U.S.C.A. § 141 and following. The injunction enjoins the defendants from engaging in unfair labor practices in violation of section 8(b)(4)(A) of the act which declares that it is unfair labor practice for "a labor organization or its agents"
"(4) to engage in, or to induce or encourage the employees of any 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 or to perform any services, where an object thereof is: (A) forcing or requiring any employer * * * or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; * * *."
It is to be observed that section 10(l), under which the issuing of a preliminary injunction is authorized, requires the district judge to find that there is reasonable cause to believe that a violation of the act as charged has been committed. Our review, therefore, is simply to determine whether the finding of a reasonable cause is not clearly erroneous under 52(a), Fed.Rules Civ.Proc. 28 U.S.C.,*fn2 and whether the form of relief granted shows a proper exercise of judicial discretion. This puts a lighter burden on both the district judge and ourselves than if final findings of ultimate fact were required. That task is, of course, for the labor relations board subject to review by this Court if and when enforcement is sought here.
The setting out of which the present controversy arises was and is an effort on the part of certain labor unions to unionize a large bakery and restaurant concern called Horn & Hardart Baking Company. This company is a multistate chain whose sales exceed 29 million dollars annually. Any suggestion that interstate commerce may not be affected by the stoppage of its business is too trivial at this stage of litigation under the labor relations act to treat seriously.*fn3 Several unions were involved in the effort to unionize Horn & Hardart. It is not suggested that this attempt is unlawful. What we have here is a charge that certain unions violated the statute by putting pressure on employees of other concerns with whom Horn & Hardart had business relations. That, in the language quoted above, constitutes a violation cognizable by the board and against which a preliminary injunction may be issued, in a proper case, by the district court.
The first and hardest case to deal with is that of Local 107, Highway Truck Drivers & Helpers. Members of this local were undoubtedly and admittedly engaged in the effort to unionize Horn & Hardart and groups of them picketed that company's establishment at Tenth and Locust Streets, Philadelphia, during all the times here in question. Is this local proved to be a part of that which is charged as the unfair labor practice and here made subject to the injunction?
A very important, perhaps decisive, fact in answering this question has to do with the identity of one Zoroiwchak and one Brown.It was sought to be shown that these men represented and acted for Local 107 by proof of things they said to other people. Several conversations were introduced wherein Zoroiwchak said he represented 107. Evidence was received that Brown announced over a loud speaker that he was broadcasting for 107. This was over objection by counsel for 107 who objected then and still objects to the use of this evidence to establish agency on the part of Zoroiwchak and Brown.
In this objection we think that counsel for 107 had merit on his side. It is well established law that you cannot prove that A is an agent of P by declarations that A said so to numerous other persons. The reason is that such statements are hearsay and the evidence is inadmissible under the hearsay rule. So, for example, when Zoroiwchak told the manager of a vegetable growers' association that he represented Local 107 that statement cannot be used to prove that he did so represent the local although if the fact that he made the statement has any independent significance "as a verbal act" it, of course, may be proved.The above statement is well established law.*fn4 We really do not think there is any question about it and the district judge was perfectly aware of the rule. (Of course, this situation is to be distinguished from that where in a court proceeding a witness declares that he is agent for another. That is not hearsay and is not to be excluded as such.)*fn5
On the other hand agency may be established by other means than a direct statement from an alleged employer that someone is his agent or the showing of a written power of attorney on the part of a principal to have another act for him. It can, of course, be proved by circumstantial evidence as can any other proposition.*fn6 Thus, if a person is seen from time to time behind the counter of a store engaging in the selling of merchandise and taking payment for it, this fact tends to show that the person in question is working for the proprietor of the store. If a man in uniform regularly punches your commuter's ticket each morning that regular conduct surely tends to prove that the man with the punch in his hand is working for the railroad even though he carries no certificate with him and makes no statements. Did Zoroiwchak or Brown do anything which makes reasonable ground for thinking that they were representing Local 107 or in the alternative Local 107 plus other unions who were endeavoring to unionize Horn & Hardart?
It is admitted that Zoroiwchak was not a member of Local 107 and it was not suggested that Brown was either. Indeed, Brown was secretary-treasurer of a local of another union, Local 596 of the Garage, Parking & Service Station Employees. This local was not one of the four which were picketing the Horn & Hardart commissary and was not included in the injunctive relief.
The regional director contends however that the agency of Zoroiwchak and Brown for Local 107 does not depend upon their membership in that union but is established by their conduct along or near the picket line and at several business concerns in Philadelphia.
It was at these other commercial establishments that the improper secondary pressure was allegedly exerted. On May 6, 1955, the employees of Industrial Cold Storage & Warehouse Company refused to load a Horn & Hardart truck with meat which that concern had stored in the warehouse. Four days later the workers at The Great Atlantic & Pacific Tea Company declined to unload a truck, operated by the Philadelphia Vegetable Growers' Co-Operative Association, which had crossed the picket line at Horn & Hardart.On May 23, the employees at American Sugar Refining Company refused to load sugar onto a Horn & Hardart truck.
Zoroiwchak was in varying degrees connected with all three incidents, Brown only with the last. Zoroiwchak was seen "about" the warehouse when the Industrial employees refused to load the meat. He accompanied an unidentified man to A & P and was present when his companion informed the A & P receiver that the vegetable truck had crossed the picket line and that they were requesting the A & P workmen not to unload it. At American Sugar Zoroiwchak told the union steward, the foreman of the shipping department, and the men on the platform, not to load the Horn & Hardart truck with sugar. He also brought Brown and three ...