Jersey Farms Milk Service, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1964

148 N.L.R.B. 1392 (N.L.R.B. 1964)

1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone No. Central 6-9660,
if they have any questions concerning this notice or compliance with its provisions.
Jersey Farms Milk Service , Inc. and Amalgamated Meat Cutters
& Butcher Workmen of North America, Local 405, AFL-CIO.
Case No. 26-CA-1540. September 29, 1964
DECISION AND ORDER
On November 13, 1963, Trial Examiner George L. Powell issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 attached Trial Ex-
aminer's Decision. Thereafter, the Respondent and the General
Counsel filed exceptions to the Trial Examiner's Decision and briefs
in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.
We agree with the Trial Examiner, for the reasons stated in his
Decision, that Respondent violated Section 8(a) (5) and (1) of the
Act by unilaterally subcontracting the work of its transport division
on April 8, 1963, without first notifying and bargaining with the
Union. However, we do not agree with the Trial Examiner's pro-
posed remedy for the following reasons :
In fashioning our affirmative orders, we bear in mind that the
remedy should be molded to the particular situation requiring re-
dress.' Having scrutinized the record and weighed the particular
facts and circumstances surrounding this case, including cumulatively
(a) Respondent's earlier history of harmonious labor relations with
the Union; 2 (b) the absence of any apparent antiunion motivation
in the unilateral subcontracting; (c) the economic hardship both to
i N L R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333, 348.
2 Crown Zellerbach Corporation, 95 NLRB 753.
148 NLRB No. 139.
JERSEY FARMS MILK SERVICE, INC. 1393
Respondent and to third party interests that full restoration of the
status quo ante would entail; 3 and (d) Respondent's subsequent will-
ingness to bargain with the Union about the subcontract 4 as detailed
below, we agree with the finding of the Trial Examiner that an order
to restore the status quo ante is inappropriate in this case.5
Even though the unilaterally discontinued operation is not ordered
restored, effectuation of the. policies of the Act does require that
the Respondent be directed now to remedy the violation found by
offering to -bargain about resumption of the operation it contracted
out and any proposed alternatives thereto, including steps that might
be taken to minimize the effects upon employees of the action taken.6
And while under other circumstances we might have considered it
appropriate 'to 'require the Respondent to make whole its transport
division employees for all losses of pay they may have suffered dur-
ing the period from April 8, 1963, the date of the violation, until
the date such violation is fully remedied,7 we do not believe that the
full measure of such remedial relief is warranted under the special
facts of this case. Thus it appears that the Respondent did meet
with the Union on May 6,•1963,,at which meeting only the question
of reinstating the men was discussed.8 Although the parties did not
"bargain" to impasse on that occasion concerning the subcontracting,
we believe that to the extent the reinstatement of employees was
discussed, the Employer - discharged his duty to bargain on that
aspect of the matter. Consequently, we are limiting remedial monetary
relief to the employees-to the period between April 8 and May 6, 1963.8
Our order, in short, recognizes that the backpay obligation terminates
on May. 6, 1963, but that the' bargaining obligation still exists.
ORDER
Pursuant to Section 10(c) ' of the National Labor Relations Act,
as .amended,. the National Labor Relations Board hereby orders that
Respondent, Jersey Farms Milk Service, Inc., Nashville, Tennessee,
its officers , agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Failing or refusing to bargain collectively with Amalgamated
Meat Cutters- & Butcher Workmen of North America, Local 405,
8 Carl Rochet et al . d/b/a The Renton News Record , 136 NLRB 1294.
4 Hartmann Luggage Company, 145 NLRB 1572.
5 Winn.-Dixie Stores , Inc., 147 NLRB 788.
e Ibid.
7 Ibid.
8 At that time only two of the men had lost employment ; the remainder had been either
transferred by the Respondent or hired by the subcontractor.
•8 Backpay shall be based upon the earnings which the affected employees would nor-
mally have received during the mentioned period less any net interim earnings, with
interest at 6 percent per annum. Isis Plumbing & Heating Cc , 138 NLRB 716.
760-577-65-vol . 148-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, as the exclusive representative of its employees in the
appropriate bargaining unit,10 by unilaterally contracting out work
affecting the terms and conditions of employment of employees
within the aforesaid unit without prior notice to, and bargaining
with, the Union.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organi-
zation, to form, join, or assist the Union named above, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid and protection, or
to refrain from any or all such activities.
2. Take the following affirmative action which it is found will
effectuate the policies of the Act :
(a) Bargain with Amalgamated Meat Cutters & Butcher Work-
men of North America, Local 405, AFL-CIO, with respect to the
contracting out of the transport division work, including the possible
restoration of the transport division, and the effects of contracting
out the work of the said division upon the employees thereof.
"(b) Put in writing and sign any agreement made as a result of
such bargaining.
(c) Make whole the employees of the transport division, in the
manner set forth in this Decision, for any loss of earnings which
they may have suffered during the period from April 8 to May 6,
1963, by reason of the Respondent's unilateral action in subcontract-
ing the work of that division.
(d) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, time-
cards, personnel records and reports, and all other records necessary
to analyze the amounts of reimbursement, due under the terms of
this Order. • ,
(e) Post in its plant in Nashville, Tennessee , copies of the attached
notice marked "Appendix." 11. Copies of such notice, to.be furnished
by the Regional Director for Region 26, shall, after being duly signed
•by an authorized representative of the Respondent, be posted imme-
diately upon receipt thereof; and be-maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, including all
10 The appropriate unit is composed of all employees of Respondent , employed at Nash-
ville , Gallatin , Cookeville , McMinnville , Tullahoma , Shelbyville, Columbia, 'Lawrenceburg,
Hohenwald , Dickson, Clarksville , Camden , and Murfreesboro , Tennessee , excluding ' all
office clerical employees , managers , route managers, city salesmen, field men, professional
employees , guards , watchmen , and supervisors as defined. In the Act.
11 In the event that this Order Is enforced by a decree of a united States Court of
Appeals, there shall be substituted for the words "A Decision and order" the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
JERSEY FARMS MILK SERVICE, INC. 1395
places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 26, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that : "
WE WILL NOT fail or refuse to bargain collectively with Amal-
gamated Meat Cutters & Butcher Workmen or North America,
Local 405, AFL-CIO, as the exclusive representative of all our
employees in the appropriate bargaining unit described herein
by unilaterally contracting out work affecting the terms and
conditions of employment of employees within the bargaining
unit without prior notice-to,-and bargaining with, the aforesaid
Union.
The appropriate bargaining unit is :
All employees of Respondent employed at Nashville, Gal-
latin, Cookeville, McMinnville, Tullahoma, Shelbyville,
lumbia, Lawrenceburg, Hohenwald, Dickson, Clarksville,.
Camden, and Murfreesboro, Tennessee, excluding all office
clerical employees, managers, route- managers, city salesmen,
field men, professional employees, guards, watchmen, and
supervisors as defined in the Act.
WE WILL NOT in any like or-; related manner interfere with,'
restrain, or coerce employees in the exercise'of their right to-
self-organization, to join .or, assist. any labor organization, to
bargain collectively through representatives of their, own choos-
ing, and to engage in any other concerted activities for the pur-,
pose of collective bargaining or-other mutual aid or protection,
or to refrain from any or all such activities.
WAVE WILL bargain collectively with Amalgamated Meat Cutters
^C Butcher Workmen of 'North America, Local 405, AFL-CIO,
with respect to contracting out the transport division work, in-
cluding the possible restoration of the transport division, and
the effects of contracting-out the work of the said division upon
the employees thereof.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL put in writing and sign any agreement made as a
result of such bargaining.
WE WILL make whole the transport division employees for any
loss of earnings which they may have suffered during the period
from April 8 to May 6, 1963, by reason of our unilateral action
in subcontracting the work of that division.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of the above-named or any other
labor organization.
JERSEY FAR31S MILK SERVICE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
' Employees may communicate directly with the Board's Regional
Office, 746 Federal Office Building, 167 North Main Street, Memphis,
Tennessee, Telephone No. 534-3161, if they have any question con-
cerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard by Trial Examiner George L. Powell at Nashville, Tennessee, on
September 4, 1963, pursuant to a charge , a first amended charge, and a second
amended charge filed on May 21, June 21, and July 19, 1963 , respectively, by the
Charging Party,' a complaint by the General Counsel filed on July 19, 1963, and an
answer filed August 2, 1963, presents a single issue: whether Respondent 2 refused
to bargain in good faith within the meaning of Section 8(a) (5) of the Act 3 by
contracting out the work formerly performed by its transport division , and this ac-
tion was based solely on economic considerations and not on any antiunion con-
siderations . The defense of Respondent is that it had the right to do what it did
under its present collective -bargaining contract and that the Charging Party knew
Respondent was going to contract out the work before it was done and did not re-
quest bargaining over it.
3 Amalgamated Meat Cutters & Butcher Workmen of North America, Local 405 , AFL-CIO.
9 Jersey Farms Milk Service, Inc.
PNational Labor Relations Act, as amended , 29 U.S.C . Sec. 151 , et seq . Section 8(a) (5)
of the Act is as follows:
Smc. 8. (a) It shall be an unfair labor practice for an employer-
s r * r • + •
(5) to refuse to bargain collectively with the representatives of his employees .. .
s s r s s s s
(d) For the purposes of this section , to bargain collectively is the performance
of the mutual obligation of the employer and the representative of the employees
to meet at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment , or the negotiation of an agree-
ment, or any question arising thereunder , and the execution of a written con-
tract incorporating any agreement reached if requested by either party, but such
obligation does not compel either party to agree to a proposal or require the
making of a concession .. .
JERSEY FARMS MILK 'SERVICE, INC. 1397
The Respondent and the General Counsel made oral argument at the hearing and
filed briefs with the Trial Examiner on September 24 and 25, 1963, respectively.
Upon consideration of the entire record 4 in this case, including the briefs of the
parties, and upon my observation of each of the witnesses appearing before me, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Tennessee corporation, operates a plant located in Nashville, Ten-
nessee, where it is engaged in the purchase, processing, and retail sale and distribu-
tion of milk products. During the 12-month period immediately preceding the
hearing, it sold and distributed more than $500,000 worth of its products. During
the same period of time, Respondent purchased and received at its Nashville, Ten-
nessee, plant for use in its processing, retail sale, and distribution, goods and supplies
valued in excess of $50,000 directly from points outside the State of Tennessee. I
find, as admitted by the parties, that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. (Siemons Mailing Service,
122 NLRB 81.)
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meat Cutters & Butcher Workmen of North America, Local 405,
AFL-CIO, is, as admitted by the parties, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The facts in this matter are largely undisputed and all of the witnesses testified
credibly to the facts as remembered by them.
Respondent and the Charging Party have had a pleasant collective-bargaining re-
lationship over a period of several years in an appropriate unit composed of all of
Respondent's employees employed at Nashville, Gallatin, Cookeville, McMinnville,
Tullahoma, Shelbyville, Columbia, Lawrenceburg, Hohenwald, Dickson, Clarksville,
Camden, and Murfreesboro, Tennessee, excluding all office clerical employees, man-
agers, route managers, city salesmen, field men, professional employees, guards,
watchmen and supervisors as defined in the Act. The employees number about 120.
At the time the current contract, which runs from January 1, 1963, to December
31, 1965, was being negotiated, the three officers of Respondent, its president, vice
president, and secretary, had discussed among themselves contracting out the work
performed by the transport division, but no mention of this was made to the Charg-
ing Party during contract negotiations.
Leslie F. Vantrease, Sr., Respondent's president, credibly testified that the reason
no mention was made to the Charging Party about the possibility of contracting out
the work of the transport division was that his legal counsel had told him it was
unnecessary being part of management's prerogative and as such was covered by
article 6 of the current agreement.
On April 8, 1963, Respondent signed a contract with Byron Ross under which
Ross agreed, for a price, to do the work formerly done by six employees in the
Respondent's transport division, namely: Claude Woods, Lewis Moore, Burton
Robertson, Howard Wright, Joe Helms, and Ross. Ross voluntarily quit his em-
ployment with Respondent in order to sign the contract to haul. He in turn hired
Wright and Helms after they, like Moore and Robertson, had been laid off by Re-
spondent for lack of work when the Ross contract was signed.5 There is no ques-
tion but what the whole arrangement with Ross was a bona fide arrangement. The
General Counsel stipulated that an independent contractor arrangement was set up.
The Respondent sold its equipment. It sold its stake truck on the open market
and sold its two tractors and three trailers to Ross.
The Repondent was convinced that this operation would save it money. It studied
cost figures which showed a savings in money and after 22 weeks of actual operation
it is saving around $230 a week.
4 Respondent has moved to correct the record in one particular. The General Counsel
agrees and the record Is corrected as follows: Page 54, line 3, the words "The Witness"
are changed to "Mr. Langley."
8 Moore and Robertson are still unemployed although Moore worked 3 weeks during the
vacation period of Woods, who was retained by Respondent in another capacity.
1398 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
During the week immediately preceding Monday, April 8, 1963,13 Atnip acciden-
tally met Vantrease, Junior, in a restaurant and told him that he had heard of a
rumor that Respondent was going to contract out the work of the transport division.
Vantrease, Junior, told him they "were thinking about selling the trucks to Ross or
somebody but that's not official " Vantrease, Junior, admitted telling Atnip that
Respondent was considering contracting the transport long-haul division to Ross and
that it was accidental that the matter came up at all 7
On April 8, 1963, as noted earlier, Respondent did enter into the contract for the
transport division work with Ross. Also on the same date the Charging Party wrote
Respondent a letter in which it stated "it ... files a complaint which contests your
right to contract Transport Drivers' work out." In the same letter it told Respond-
ent it had no right to lay off transport drivers so long as transport driving was re-
quired in selling products.
Further it accused Respondent of violating the agreement and insisted it stop from
completing the arrangement it had heard it intended to go through with; it insisted
that laid-off drivers be reemployed and no more be laid off; and it requested a meet-
ing "at your earliest possible convenience "
Respondent did not answer the April 8 letter.
The Charging Party wrote again on April 12, 1963, seeking a "negotiating meet-
ing" and notifying Respondent that it considered Respondent to have violated Sec-
tion 8(a) (5) of the Act citing as its authority the Town & Country case 8
On May 2, 1963, Respondent told the Charging Party it would meet on May 6,
1963. On that day there was a meeting attended by representatives of both parties.
Business Representative Sloan asked that the men be put back to work. Counsel for
Respondent asked if the Charging Party had some proposal other than putting the
men back to work but there was none. The meeting broke up with the Charging
Party asking Respondent to think about it and call them back
Respondent maintains that it had the right to do what it did under the manage-
ment prerogative provision of article 6 and under article 35. Article 35 has restric-
tive language but no restriction as to what Respondent did. These clauses are as
follows :
ARTICLE 6-Management Rights
The Management of the business in all its phases and details is vested in the
Employer The Employer, however, shall comply with the terms of this agree-
ment, and will not discriminate against any employee.
ARTICLE 35-Loading and Unloading
All present loading and unloading policies will be continued with no changes
in regard to transports, retail, and wholesale trucks for the period covered by
this agreement.
Respondent argues that the Charging Party knew of its plans to contract out the
transport division work to Ross both through Ross who was a steward of the Charg-
ing Party and through Atnip who talked of the rumor to Vantrease, Junior. Fur-
6 Billy H Atnip, assistant business representative of the Charging Party, places the
time as "two or three days" before April 8, 1963, and Leslie F Vantrease, Jr, Respond-
ent's secretary, places the time "in the neighborhood of a week" before
a The testimony is as follows:
Q Did you seek out Mr Atnip that day or did you and lie just happen to be talk-
ing about something)
A [Vantrease, Jr ] I am sure we just happened to meet and be talking about
something I really don't remember how we did meet, other than I remember that
we met over at the restaurant _
Q It was more or less accidental1
A It was accidental. It wasn't planned on my part
Q And the fact that the conversation about the long haul came up is more or less
an accident This wasn't planned on your part, either"
A No, sir
Q. In fact, like your father Mr Vantrease, Sr, you considered this to be a matter
purely of management prerogative9
A. That is correct.
Q And you had no intention of consulting with the union about the matter"
A None whatsoever until after the contract was signed . . . .
8Town it Country Manufacturing Company, Inc, 136 NLRB 1022.
JERSEY FARMS MILK SERVICE, INC. 1399
ther it argues that the Charging Party must have known of the plans because it
wrote a letter dated the same day the Ross contract was entered into. And knowing
of its plans, the Charging Party did nothing to request bargaining ( the theory of
Respondent being that there can be no refusal to bargain by an employer without a
request by the union ) and Respondent then changed its position before it knew of
the Charging Party 's concern.
In support of this defense , Respondent brought out the fact that in past history,
somewhere between August 1 and September 16, 1960, it told Sloan, during contract
negotiations , that it was going to sell its tank trucks and Sloan did not object , in fact
Sloan told them they were within their rights and there no longer was a discussion
on this point . Respondent sold the trucks with no complaint.
Analysis and Decision
Law is composed of the life juices of the people 9 The thrust of the recent Board 10
decisions , such as Town & Country,ll is to bring management and the collective-
bargaining agent of the employees closer and closer together in a respectful and
respected relationship while doing their own jobs in an effort to advance the interest
of both the employer and employee. This is a matter of mood, and in certain re-
spects is like a marriage.
Going back only into the recent past, it can be remembered when women in this
country had no civil rights. They could not vote for their Government . All that
is past and women have a rightful place in the community . And they have a place
in the home as a full -fledged partner , albeit their position is rarely exactly the same
in different homes.
But we can well imagine the almost universal cry in every home in the land should
the husband , without first talking it over with his wife, rent out the spare room in
the home to a lovely young roomer, be she blonde , brunet , or redhead ! The same
thing is true, with perhaps a difference in degree , should the husband just sell his
wife's beloved fur coat! These things just cannot be done if the "marriage" is to be
kept going. The public interest in labor -management relations is to keep the parties
together.
The Congress states it thusly:
It is hereby declared to be the policy of the United States ... [to encourage]
the practice and procedure of collective bargaining . . . by protecting the exer-
cise by workers of full freedom of association , self-organization, and designa-
tion of representatives of their own choosing , for the purpose of negotiating
the terms and conditions of their employment ....12
Following this policy, when employers unilaterally take steps which destroy in
whole or in part that which the union has obtained through the processes of collec-
tive bargaining , the Board holds that the employer is not doing what he should be
doing under the Act and the employer is ordered to do the proper thing. In some
cases, it is even ordered to recreate the same situation as it was before it took the
unilateral action. Management prerogative clauses in contracts do not go so far as
to permit substantive changes in the wages , hours, and terms and conditions of
employment of employees in the appropriate collective-bargaining unit.
Of course , labor relations cannot really be likened to marriage . But the mood of
a successful marriage, the give-and-take , and the mutual respect, is the dream the
Board has in mind in carrying out the public policy when it requires management to
first bargain with the union before it takes action such as contracting out work over
which it has previously bargained with the union That is this case. The Respond-
ent here bargained with the Union over the employees in the appropriate unit and
shortly after agreeing on the terms ,- unilaterally changed its operations to the detri-
ment of certain of the employees . Bargaining in good faith within the meaning of
the Act is a continuing thing not stopping with the execution of a collective -bargaining
agreement but continuing so long as the union is the exclusive representative of the
employees:
6 See "Felix Frankfurter Reminisces ," Reynal & Co, N.Y. 1960.
10 National Labor Relations Board
n Town & Country Mfg Co , The. v. N L .R B , 316 F 2d 846 (C A . 5). See Fibreboard
Paper Products Corp. v. N L R B, 322 F. 2d 411 ( C A.D C ) ; N L R B. v Benne Katz,
d/b/a Williamsburg Steel Products Co, 369 US 736; and N L R.B. v Brown-Dunkin
Company, Inc, 287 F 2d 17 (CA. 10).
12 Section 1, fifth paragraph of the Act.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact that Respondent had done a somewhat similar thing and contracted out
work in 1960 with no objections by the Charging Party is certainly an ameliorating
influence but it does not excuse the present action which was done after the law on
the matter had developed in a different direction. The Circuit Court for the Fifth
Circuit on April 29, 1963, affirmed the earlier decision of the Board in the Town &
Country case, supra. It is appropriate at this time to set out and discuss some of
the case law on the subject. In a case not yet reported, but one on all fours with
the instant case, the United States Court of Appeals for the Eighth Circuit in the
case of Adams Dairy, Inc., 137 NLRB 815, 322 F. 2d 553, denied enforcement of
the Board's Order which found that the Respondent in that case had violated Sec-
tion 8(a)(5) of the Act when it discharged its driver- salesmen and replaced them
with independent contractors without first notifying and consulting with the employ-
ees' certified bargaining representative. The court seemed to regard it as significant
that there was no showing that the company was motivated by antiunion considera-
tion. Additionally the court found support for its view in N.L.R.B. v. Erie Resistor
Corp., 373 U.S. 221.
The Board has now petitioned the court for a rehearing in the matter, contending
that the question of antiunion motive is completely irrelevant in the case as that
would go only to a finding of a violation of Section 8(a) (3) which was not involved
therein. The Board further contended that reliance upon Erie Resistor "miscon-
ceived the scope of that decision." The Board's brief states:
Erie Resistor involved a grant of superseniority to replacements for strikers and
strikers who return to work during a strike, and the basic issue was whether
this policy, which by its very nature discriminated between employees on the
basis of strike activity, was violative of Section 8(a)(3) and (1) of the Act
irrespective of the employer's motive. The Supreme Court, although acknowl-
edging that an antiunion motive is generally required to establish discrimination
within the meaning of Section 8(a)(3), agreed with the Board that the super-
seniority policy was so discriminatory and so interfered with the right to strike
guaranteed by Sections 7 and 13 of the^Act that it violated Section 8(a)(3)
even though the employer may have been motivated only by a desire to keep
his plant operating. To be sure, the court further held that the company had
refused to bargain in violation of Section 8(a)(5) of the Act, but this was
wholly contingent upon the first finding that the superseniority policy consti-
tuted discrimination in violation of Section 8(a)(3); that is, the sole basis for
the Section 8(a)(5) finding was that the employer, in contract negotiations,
had insisted upon including in the contract an illegal clause, one recognizing a
superseniority policy which was unlawful under Section 8(a) (3).
The Board had not found in the Adams case that the company had discriminated
in violation of 8(a)(3) of the Act and stated in its brief for rehearing that such a
finding was not required for it to make a finding of violation of Section 8(a) (5). It
argued that the refusal to bargain in Adams did not consist of demanding an illegal
clause as was the situation in Erie Resistor but rather consisted of taking action with-
out notifying or consulting the bargaining representative. In the latter situation, the
Board's brief argues, the employer's motive, his good or bad faith, is irrelevant in
determining whether there has been an unlawful refusal to bargain. The only ques-
tions are whether the subject is within the area of wages, hours, or other terms and
conditions of employment, and whether the employer took action on that subject
without first consulting with the union. Reference was made to the case of N.L.R.B.
v. Benne Katz d/b/a Williamsburg Steel Products Co., at 369 U S. 736 where uni-
lateral action was found to violate Section 8 (a)(5) notwithstanding the employer's
subjective good faith.
In some of the previous subcontracting cases like N.L.R.B. v. Brown-Dunkin, 287
F. 2d 17 (C.A. 10) and Town & Country Mfg. Co., Inc. v. N.L R.B., 316 F. 2d 846
(C.A. 5), referred to above, the evidence showed not only that the employer failed
to discuss the subcontracting issue with the union, but that the subcontracting was
motivated by a desire to defeat the union rather than by economic consideration. In
these circumstances, argues the Board, there are two unfair labor practices: the
failure to discuss the matter with the union constitutes a refusal to bargain in violation
of Section 8(a)(5), and the illegal motivation warrants the additional finding that
the action was discriminatory in violation of Section 8(a)(3). However, the fact
that these two unfair labor practice findings are justified in these cases does not mean
that, where as here the illegal motivation which may be necessary to support an
JERSEY FARMS MILK SERVICE, INC. 1401
8(a) (3) finding is lacking, the separate 8(a) (5) finding cannot be made. See
Fibreboard Paper Products Corp. v. N.L.R.B., 322 F. 2d. 411 (C.A.D.C.) wherein
the court stated:
It is not necessary to find an antiunion animus as a credit for the conclusion that
the employer violated Section 8(a)(5), which commands good-faith bargaining
on wages, hours, and terms and conditions of employment.
Accordingly, applying the principles of the Board in the case at issue, a refusal-to-
bargain finding is warranted even though the Company may have been motivated by
.business, rather than antiunion, consideration. The Company here acted unilaterally
without prior notice to or discussion with the Union. The action taken involved a
change in wages, hours, and other terms and conditions of employment, in both a
literal and a very real sense. The jobs of the employees in the transport division
were abolished; they lost their status as employees and were replaced by independent
contractors. Such action altered their wages, hours, and other terms and conditions
of employment to a far greater extent than if the Respondent had merely reduced
wages or increased working hours. There is no question that these lesser changes are
bargainable matters to which unilateral action by the Employer is precluded. A
fortiori, the same conclusion should follow with respect to the more drastic changes
in employee status which flow from a decision to eliminate employees' jobs alto-
gether.13 Accordingly, I find that Respondent, by failing to notify and bargain with
the Union about the change to an independent contractor system before putting it
into effect, violated the requirements of Section 8(a)(5) of the Act, irrespective of
the Company's motive.14
Having found that Respondent failed to bargain in good faith within the meaning
of Section 8(a)(5) of the Act when it contracted out the work of the transport
division without first meeting with and bargaining with the Charging Party herein,
I find further that Section 8(a)(1) is violated inasmuch as it always is derivatively
violated with a violation of Section 8 (a) (5).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
13 Of course, this does not mean that the Employer cannot contract out an operation
unless the Union approves. It merely means that the Employer must afford the Union a
reasonable opportunity to bargain about the proposed action before he makes a final
decision.
14 Respondent contends in its brief that it did not act unilaterally "without prior notice
to or discussion with the union" inasmuch as sometime prior to April 8, the date of the
independent contract, ". . . the Respondent's corporate secretary, who handles labor rela-
tions for the Respondent, talked to the Union's assistant business agent, Air. Atnip, and
advised Mr. Atnip that the Respondent was considering making a change in the trans-
portation division, that is contracting out long haul work " At a point later on in its
brief, Respondent referred to this meeting between the two men identified above as a
"conference." The facts, on the contrary, indicate that this meeting is no "conference "
Neither of the two parties could testify exactly as to when the meeting took place, one
testifying that it was some "3 to 5 days before" and the other a week before the contract
was signed This indicates a lack of importance in the meeting Further, Atnip had
heard rumors about the work being contracted out so when he found the company repre-
sentative in a nearby restaurant he asked him about it In his inquiry, Vantrease,
Junior, replied, "we are thinking about selling the trucks to Ross or somebody, but that's
not official " Also according to Vantrease, Junior, he told Atnip that Respondent was
considering contracting the transport long-haul division to Ross. Also Vantrease, Junior,
admitted that it was accidental that the matter came up at all and that he would not
bargain with Respondent over this as he believed he had the right to contract out the
work under the present contract.
Laying aside for the moment Respondent's position that its management prerogative
clause gave it the right, to take this unilateral action and considering only the proposition
that notice and discussion had been held with the Union before the action was taken, it
also lacks merit under the facts. Here there were mere rumors. If checking out rumors
were to acquire the standing of bargaining collectively it Is conceivable that management
and labor could be devoting the bulk of their time checking out rumors rather than engag-
ing in constructive, mutually trustful endeavors.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has violated Section 8(a)(5) and (1) of the Act
I will order it to cease and desist from any like or related conduct.
However, as the record shows that Respondent was motivated solely by economic
considerations; that the blessings of these economies were actually received in the
passage of time since the contracting of the work, and that contracting out work
without bargaining had been done in the past, I will not order Respondent to cancel
its contract with Ross and rehire the five former employees and go back to its former
practice of doing its own hauling. All the trucks and tractors have been sold off.
Respondent would be put at great expense to create the situation as it was before its
contract with Ross, and, even if that were to be done the results of bargaining col-
lectively with the Charging Party might well result in again selling the equipment
and contracting out the work. Obviously money would be lost in either or both
transactions. Under these circumstances such loss would be wasteful and not con-
structive. It would seem to penalize both the Employer and the employees. I believe
it would be more equitable for the Respondent to be ordered to now bargain with
the Charging Party over the matter and to carry out whatever arrangements were
agreed upon as a result of this collective bargaining. As the action of Respondent
in unilaterally carving out part of the collective-bargaining unit has an impact on
the whole wage structure, it materially breached the agreement.
Also because of this breach and in addition to the preceding paragraph, I will order
Respondent to bargain with the Charging Party upon so much of the wages, hours and
terms and conditions of employment of all employees in the unit as the Charging Party
requests and, if necessary, agree to a wholly new collective-bargaining agreement.
It is recognized that man should reach for more than he can grab, and, on the
other hand, that he be forced to give up some of that he had when interests of the
public are put into the balance. Both parties in this matter seem very familiar with
the law which in one aspect holds that good-faith collective bargaining does not
require the making of concessions.
CONCLUSIONS OF LAW
1. The Charging Party is the duly selected collective-bargaining agent for the em-
ployees in an appropriate unit designated as follows:
All employees of Respondent employed at Nashville, Gallatin, Cookeville, Mc-
Minnville, Tullahoma, Shelbyville, Columbia, Lawrenceburg, Hohenwald, Dickson,
Clarksville, Camden, and Murfreesboro, Tennessee, excluding all office clerical em-
ployees, managers, route managers, city salesmen, field men, professional employees,
guards, watchmen, and supervisors as defined in the Act.
2. By unilaterally contracting out the work of the transport division, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (I)
and Section 2(6) and (7) of the Act.
Recommended Order omitted from publication.
Tanner Motor Livery, Ltd . and Martin Abramson . Case No. 21-
CA-5500. September 29, 1964
DECISION AND ORDER
On April 30, 1964, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in and was not engaging in the unfair labor
practices alleged in the complaint and recommending that the com-
plaint be dismissed in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel filed excep-
tions to the Trial Examiner's Decision and a brief in support thereof.
148 NLRB No. 137.