Milk Drivers & Dairy Employees, Local Union 537

National Labor Relations Board - Board Decisions

Jun 3, 1964

147 N.L.R.B. 230 (N.L.R.B. 1964)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the policy of requiring the inclusion of truckdrivers where there was
disagreement. However, it did not reverse the finding, stated in
Valley of Virginia, concerning a community of interest between truck-
drivers and production and maintenance employees in relation to the
flow of materials and products into, and out of the plant. Nor did the
Board reverse such basic policies as (a) a plantwide unit is presump-
tively appropriate; (b) a petitioner's desires as to the unit is always a
relevant consideration; and (c) it is not essential that a unit be the
most appropriate unit. The elimination of the policy of requiring the
inclusion of truckdrivers brought the Board's policy with respect to
such employees into harmony with its long-standing and oft-stated
policy of not compelling a labor organization to seek representation
in the most comprehensive grouping. Where, as here, a labor organi-
zation is willing, and seeks, to represent them in a plantwide unit, we
agree with the Regional Director that even though they may be away
from the plant most or all of the time and do little or no work in the
plant, truckdrivers have sufficient community of interest with produc-
tion and maintenance employees to warrant including them in such a
unit.
Accordingly, the case is hereby remanded to the Regional Director
for the purpose of holding an election pursuant to his Decision and
Direction of Election, except that the payroll period for determining
eligibility shall be that immediately preceding the date above.
Milk Drivers and Dairy Employees , Local Union No . 537 and
Sealtest Foods, a Division of National Dairy Products Cor-
poration and Associated Milk Dealers of Denver , Incorporated.
Case No. 27-CE-1. June 3, 1964
DECISION AND ORDER
On N6vember 26, 1963, Trial Examiner James R. Hemingway 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
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a supporting brief.'
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 Members
Leedom and Jenkins].
1 Respondent 's motion for oral argument is denied because, in our opinion , the record,
exceptions , and brief adequately set forth the issues and positions of the parties.
147 NLRB No. 35.
MILK DRIVERS & DAIRY EMPLOYEES, LOCAL UNION 537 231
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,2 the, exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner except as modified herein.
The Trial Examiner's Conclusion of Law No. 3 implies that Re-
spondent also violated Section 8 (e) by entering into agreements con-
taining article 20 with employers other than Sealtest. Although the
record establishes that the contract with Respondent that Sealtest
signed was also signed by other members of the multiemployer as-
sociation to which Sealtest then belonged, there is no evidence in the
record that Respondent reaffirmed article 20 as to such other employers
within the Section 10(b) period by insisting on its enforcement or,
otherwise. We therefore conclude, contrary to the Trial Examiner,
that Respondent has violated Section 8 (e) only through its reaffirma-
tion of article 20 in its contract with Sealtest.
However, since article 20 may still.be included in Respondent's con-
tracts with employers other than Sealtest, we find that it will effectuate
the policies of the Act to insure against prospective violations of Sec-
tion 8 (e) on the part of Respondent by ordering it to cease and desist,
as the Trial Examiner has recommended, from entering into, main-
taining, or giving effect to article 20 or any other contract provision,
express or implied, not only with Sealtest but with any employer over
whom the Board would assert jurisdiction, whereby such employer
ceases or refrains or agrees to cease or refrain from doing business
with any other person within the meaning of Section 8 (e) of the Act.'
2In the last paragraph of section 111, A, of the Trial Examiner ' s Decision we correct
the Trial Examiner 's obvious error that it was the Respondent who declined to give a
branch manager an independent distributorship . It is clear that he meant to say, as the
record shows, that Sealtest declined to do so.
3We agree with the Trial , Examiner that a violation of Section 8(e) is established when
a respondent , whether an employer or a union , "enters into" an agreement unlawful under
that section , by insisting on its enforcement within the Section 10(b) period As we said
in Dan McKinney Co , 137 NLRB 649, 657 , where an employer was the only respond-
ent, ". . . such enforcement , whether or not it was sought, assented to, or acquie,ced in
by the other party to the contract is within the scope of the prohibition of Section 8(e)
against entering into such contracts . . . See also Local 585 of the Brotherhood of
Painters, Decorators & Paper Hangers of America, AFL-CIO, et al. (Falstaff Brewing
Corporation ), 144 NLRB 100, finding a violation of Section 8(e) on the part of the
unions who were the only respondents , based solely on their attempted enforcement of an
illegal provision within the 10(b) period . Moreover, even if acquiescence in an illegal
provision by the other party to the contract is an essential element of an "entering into,"
we would find it in this case by Sealtest 's action in declining to, give its manager in
Colorado Springs an independent distributorship unless he agreed to comply with the pro-
visions of the contract . Automotive, Petroleum & Allied Industries Employees Union,
Local 618 , affiliated with International Brotherhood of Teamsters, etc. (Greater St. Louis
Automotive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1363, 1370.
4 Local 994 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America ( Van Transport Lines, Inc.), 131 NLRB 242, 244 . enfd. 298 F. 2d
105 (C.A. 2 ) ; Ohio Valley Carpenters District Council, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, at al. (Cardinal Industries , Inc.), 136 NLRB 977, 991.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that Respondent, Milk
Drivers and Dairy Employees, Local Union No. 537, its officers, agents,
representatives, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge dated May 10, 1963, but filed on May 21, 1963, by Carl W. Perry,
zone manager, Sealtest Foods, a Division of National Dairy Products Corporation
(the name of the corporation herein will be referred to as Sealtest ), against Milk
Drivers and Dairy Employees , Local Union No. 537, herein called Respondent, a
complaint was issued on July 16, 1963, alleging a violation by Respondent of Sec-
tion 8 ( e) of the National Labor Relations Act, as amended , 29 U.S.C. Sec. 151,
et seq., herein called the Act. The Associated Milk Dealers of Denver, Incorporated,
herein called Associated , was joined as a party to the contract.
The Respondent filed an answer on July 26, 1963, in which it made certain ad-
missions ( including the execution of the alleged contract provision ) but raised ques-
tions as to the constitutionality of Section 8(e) of the Act, the application of the
6 months' limitation under Section 10(b) of the Act , and alleged nonjoinder of
parties. The answer denied the commission of any unfair labor practices . A hear-
ing was held in Denver, Colorado , on August 28 and 29 , 1963, before Trial Ex-
aminer James R. Hemingway . Associated did not appear . Each of the other parties
was represented by counsel . At the close of the hearing, a time was fixed for the
filing of briefs and, within such time , each of the parties who appeared at the hear-
ing filed a brief with the Trial Examiner , each of which has been fully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF SEALTEST AND ASSOCIATED
Sealtest is a Delaware corporation , maintaining its principal office in New York,
New York . It has, at all times material herein , maintained an office and plant at
Englewood , Colorado, a suburb of Denver , where it is engaged in the manufacturing,
processing , and distribution of dairy products . In the course and conduct of its busi-
ness in the State of Colorado , Sealtest annually receives goods and materials valued
in excess of $50 ,000 directly from outside the State of Colorado.
Associated is an association of milk dealers in the area of Denver, Colorado,
bound for collective-bargaining purposes . Its members are engaged in the manu-
facturing, processing, and distribution of milk and milk products within the State
of Colorado . In the operation of their combined businesses in the State of Colorado,
the members of Associated annually receive goods and materials valued in excess of
$50.000 directly from outside the State of Colorado.
No issue is raised as to the Board 's jurisdiction based on the facts of commerce.
I find that the Board has jurisdiction.
II. THE LABOR ORGANIZATION
The Respondent is a labor organization representing employees of Sealtest, among
others, in collective bargaining . It has a contract with Sealtest and Associated
members covering , among other employees , route salesmen , said contract being for
a 4-year term expiring in the spring of 1964.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In April 1960 , and until April 1961, Sealtest was a member of Associated. In
April 1960 Associated engaged in collective bargaining with Respondent. The re-
sult was a 4-year contract , expiring (depending on the area covered ) in April or
May 1964 . Article 20 of this contract , the only one complained of, reads:
MILK DRIVERS & DAIRY EMPLOYEES, LOCAL UNION 537 233
Sale of Routes. The employer agrees that in the event any of the presently
established routes or routes established in the future are sold to anyone, the
route driver who services the said route will come under the provisions of this
Agreement and must adhere to all conditions with regard to days off, days the
route operates, etc.'
Respondent's answer "admits that Respondent is continuing to maintain and give
effect to the contract clause" above set forth "by invoking its provisions to extend
the benefits of the contract to the employers' route drivers who are classified by the
employers as `independent-operators,' " but it denies that it "has maintained or en-
forced the said contract clause so as to induce or require any employer to cease or
refrain from handling, using, selling, transporting or otherwise dealing in the prod-
ucts of any other employer, or from doing business with any other person, or for
any other improper or illegal purpose."
Late in 1961, Sealtest, after notifying Respondent of its intent to do so, turned
over to former employees and other individuals who had not been employees the
servicing of certain routes as independent operators. Respondent, taking the position
that all such operators should come under the contract, invoked the arbitration clause
of the contract, contending that Sealtest had violated article 20 of the contract. The
decision of the arbitrator, dated June 5, 1962, favorable to Sealtest, found that the
independent operators were not employees of Sealtest.
The General Counsel adduced evidence that Respondent, on December 14, 1962,
reiterated its position that in the event that Sealtest transferred any of its routes to
independent distributors, the latter had to comply with all conditions of the contract.
This was denied by Respondent's witnesses. The General Counsel offered such evi-
dence to show that, within 6 months of the time of the filing of the charge, Respond-
ent had reaffirmed and maintained in effect said article 20 of the contract. For
the reason hereinafter stated, I find that a credibility resolution of this conflict is
unnecessary.
The General Counsel, for the same purpose, adduced evidence to show that, in the
first part of 1963, the Respondent declined to give its Colorado Springs branch man-
ager an independent distributorship in that area unless he complied with all the provi-
sions of the contract. The branch manager declined to take the distributorship under
such conditions. Thereafter, the charge in this case was filed. Upon receiving notice
of the filing of the charge, Respondent's secretary-treasurer, Paul Ashcraft, tele-
phoned Manager Perry of Sealtest to ask why the charge was filed. Learning that
the charge related to the aforesaid article 20, Ashcraft asked why Sealtest was not
going to go through the "machinery of the contract," which I interpret to mean pro-
visions of the contract for settlement of disputes, including the arbitration clause.
From this, I infer that he meant that Respondent would oppose any assignment of
routes to independent contractors unless the latter were required to adhere to all
provisions of the contract. Indeed, Ashcraft admitted on cross-examination at the
hearing in this case that this was still the Respondent's position.
B. Arguments and conclusions
Respondent, in its answer, questions the constitutionality of Section 8(e) of the
Act. At Board level, this defense cannot, of course, be considered. The Act must
be assumed to be constitutional in the absence of a binding court decision to the
contrary?
Respondent contends that no unfair labor practice occurred within 6 months of
the date of the filing of the charge and that any finding of an unfair labor practice
is therefore barred by the provisions of Section 10(b) of the Act .3 This defense
1 The same language appeared in the contract involved in United Dairies, Inc., 144
NLRB 153, but in that case no 8(e) issue was raised.
2 Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, International
Brotherhood of Teamsters, etc. (Milwaukee Cheese Company), 144 NLRB 826.
3 Respondent argues that even if it should be found that the discussion of article 20 took
place on December 14, 1962, as the General Counsel contends, such an "abstract dis-
cussion concerning the correct interpretation of a contract" does not constitute an unfair
labor practice in violation of Section 8(e). This argument fails to distinguish the unfair
labor practice from evidence which tends to establish such an unfair labor practice. The
unfair labor practice would be "entering into" a contract prohibited by Section 8(e).
The discussion of December 14, 1962, if it took place, would be evidence of reaffirmation
of the contract tending to prove a continued maintenance of the contract amounting to
an "entering into."
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumes the validity of article 20 to the extent admitted in the answer. If, however,
that article were found to be illegal, even within the limitation admitted in the
answer, Section 10(b) would not prevent the finding of an unfair labor practice, for
the Board has held that a violation of Section 8(e) is shown by a mere reaffirmation
of the contract within the 6 months' period by either party,4 and that a concession
by the respondent that the illegal clause is enforced or given effect or is maintained
in effect is sufficient proof of an "entering into." 5 This being true, and since the
Respondent admittedly is maintaining article 20 as well as the other provisions of
the contract, I find no need to consider the effect of Sealtest's purported, unilateral
act of living up to the agreement without the knowledge of Respondent .6
Respondent, in its answer, claims that there is a nonjoinder of indispensable
parties-parties to the contract which contains article 20. Although Associated,
which negotiated the contract, was made a party, Respondent claims that other signers
of the contract were not members of Associated and that Associated may not
presently even be the agent of some who have, like Sealtest, since the execution of
the contract, withdrawn from membership.1 Such argument might have more merit
if a remedy were being sought against all the contract signers. A remedy in this
case is not sought even against Sealtest or Associated. Furthermore, Respondent
seems to recognize that the contract is not a joint obligation of all signers, for
Respondent states in its brief that the real parties to the contract are the individual
employers and not Associated, who acted only as their agent. With this, I concur.
Each signer has bound himself only to the extent of his own employees and business
operations; so actually we have numerous identical, separate contracts, not one joint
one: Hence, although others might be proper parties, since the language being
construed is identical, they are neither necessary nor indispensable. There is no
limit to the number of employers whom Respondent might induce to bind them-
selves to contract terms identical to those contained in the contract negotiated by
Associated. Some of these employers might have signed such contract even after
the hearing in this case closed. It could not seriously be argued that they, too,
were indispensable parties.
In N.L.R.B. V. Sterling Furniture Company, et al., 202 F. 2d 41 (C.A. 9), a
contract. containing an illegal union-shop clause had been executed by an association
of employers, on behalf of its members, including Sterling Furniture Company.
Only Sterling and the union were made parties. Yet the Board was required to find
that the contract clause was illegal despite nonjoinder of other employers. It directed
an order against Sterling, alone, of the employers. The Board's order against the
union in that case was found by the court to be too, broad, not because the union
4Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, etc. (Pure
Milk Association; Sidney Wanzer & Sons, Inc.), 141 NLRB 1237; Dan McKinney Co., 137
NLRB 649; Automotive, Petroleum & Allied Industries Employees Union, Local 618,
affiliated with the International Brotherhood of Teamsters, etc. (Greater St. Louis Auto-
motive Trimmers and Upholsterers Association, Inc.), 134 NLRB 1363; Los Angeles
Mailers Union No. 9, I.T.U. (Hillbro Newspaper Printing Company Division of Hearst
Publishing Company), 135 NLRB 1132.
5 General Teamsters', Warehousemen and helpers' Union Local No. 890 (San Joaquin
Valley Shippers' Labor Committee, et al.), 137 NLRB 641 ; Retail Clerks Union, Local 770;
et al. (The Frito Company, Western Division), 138 NLRB 244.
U The General Counsel contends that the unilateral act of Sealtest in refusing to grant
a distributorship in Colorado Springs except in compliance with the contract removes the
case from the bar of Section 10(b) of the" Act, citing the Dan McKinney decision, supra,
where the Board found that even though only the employer took action implementing the
contract during the period covered by the charge, a violation of Section 8(e) could be
found. However, in the McKinney case, the employer, not the union, was the respondent.
That case did not hold that such unilateral act by the employer who was not a respond-
ent would be proof of a violation, within the 6-month period, by the union without evi-
dence of some reaffirmance or enforcement of the contract by the latter. Cf. Retail Clerks
Union, Local 770; et al., 138 NLRB 244, where both employers and unions were respond-
ents, and Automotive Petroleum & Allied Industries Employees Union, Local 618, etc.,
134 NLRB 1363, where, although only the union was a respondent, the Board found
action by the union reaffirming the current effectiveness of the invalid clause within the
6-month period before the filing of the charge.
T Respondent conceives that, if such contract parties are not made parties to this pro-
ceeding, they could insist that Respondent comply with all the provisions of the contract,
including article 20, even if that were held to be illegal in this case. Since article 20 is a
benefit to Respondent but only an obligation or restriction to the employer, Respondent's
fear is groundless.
MILK' DRIVERS & DAIRY EMPLOYEES, LOCAL UNION 537 235
was ordered to cease and desist giving effect to the illegal union-shop clause as
applied to employers other than Sterling whose business affected interstate commerce,
even though they were not-made parties to the proceedings, but only because it was
so broad as to affect the union's rights under contracts between the union and
employers whose businesses did not affect interstate commerce, as to whom even
a closed-shop clause would not have been illegal. I conclude and find, therefore,
upon a consideration 'of all the circumstances presented in the case before me that
there is no fatal nonjoinder of parties.8
On the merits of the case, Respondent argues that article 20 was not adopted for
the purposes sought to be prohibited by Congress when it enacted Section 8(e) of
the Act. Rather, Respondent argues, it was adopted for the protection of employees
from the evils of the peddler system. It is not my function to consider either the
merits or evils of the peddler system. Nor is it my function to decide what the
legislature might have enacted had it weighed and considered the merits or evils
of the peddler system. Even if I. had the privilege of considering such matters in
a case of first impression, this is not such a case. I am bound by the interpretation
of Section 8(e) of the Act asheretofore determined by the Board and courts. In
applying such interpretation, the Board has drawn a definitive line between cases
where a union, in attempting to retain for the employer's employees the work regu-
larly performed by them, enters into a contract which prohibits all subcontracting of
work that could be performed by such employees and cases where, although sub-
contracting of work is permitted by the contract, the employer is restricted in his
liberty to deal with others, as where subcontractors must agree to be bound by the
terms and conditions of the main contract or certain of such conditions as are
favorable to the union. The former type of restriction, the Board has held, does not
necessarily violate Section 8(e) of the Act,9 but the latter type does violate the Act.io
Although the language of article 20 does not specifically limit itself to independent
contractors who are route drivers (that is, peddlers), it is broad enough to cover
such persons, among others, and the history of the negotiation of article 20, as re-
lated in the testimony at the hearing, removes all doubt that the main concern of
Respondent was the peddler system. In fact, Respondent concedes that this was
the purpose of the clause both in its answer and brief to the Trial Examiner. In its
brief, Respondent traces the history of the peddler system and the reasons for use
thereof by employers. From the outset, unions have attempted to prevent employers,
according to Respondent's brief, from jeopardizing the standards of employment
gained in collective bargaining by resort to the peddler system. Assuming, for the
sake of argument, that, despite its broad language, article 20 does not extend to per-
sons other than peddler route drivers. I would still be unable to conclude, under the
Board's interpretation of Section 8(e) of the Act, that article 20 of the contract
here under scrutiny is notf. violation of the Act.
Article 20 is almost identical in purpose with the objects more specifically spelled
out in the contract involved in Joint Council of Teamsters No. 38, et al., Arden
Farms Co., et al. (California Association of Employers), 141 NLRB 341, and in
Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, etc. (Milwaukee
Cheese Company), 144 NLRB 826, where the Board found violations of Section
8(e) of the Act. True, article 20 of Respondent's contract permits the sale (inter-
preted by the parties to mean "assign" or "transfer") of any presently established
routes or routes established in the future to "anyone" (which would include persons'
who were not, and would not become, employees of Sealtest), but this is permitted
by the contract only if the route driver who services the said route (which would
include an independent contractor or the employees of an independent contractor)
comes under the provisions of the agreement (including, apparently, membership
8 Even if the Board should find it desirable to join other contract signers, it could do
so under Section 10(b) of the Act by amendment to the complaint at any time prior to
the issuance of an order based thereon . The complaint need not be dismissed because of
a nonjoinder, therefore.
9 Milk Drivers and Dairy Employees Union, Local 546, International Brotherhood of
Teamsters, etc. (Minnesota Milk Company), 133 NLRB 1314, enfd. 314 F. 2d 761 (C.A. 8).
10 Automotive Petroleum & Allied Industries Employees Union, Local 618, etc., 134
NLRB 1363, enfd. sub now. District No. 3, I.A.M., AFL-CIO v. N.L.R.B., 315 F. 2d 33
(C.A.D.C.) ; General Teamsters', Warehousemen and Helpers' Union, Local No. 890, 137
NLRB 641 ; Joint Council of Teamsters No. 38, et al., Arden Farms Co., et al. (California
Association of Employers), 141 NLRB 341; Local 585 of the Brotherhood of Painters,
Decorators & Paper Hangers of America, AFL-CIO, et al. (Falstaff Brewing Corporation),
144 NLRB 100; Thomas Kennedy, et al. (Arthur J. Galligan), 144 NLRB 228.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Respondent under article 2) and adheres to all conditions with regard to days
off, days the route operates, etc. In effect, this clause is an agreement not to do
business with anyone who does not so qualify.
Respondent takes the position that article 20 is not intended to prevent Sealtest
or any other signatory employer from selling its routes to a bona fide employer,
presumably a competitor, but is only intended to prevent the signatory employers
from establishing a peddler system. Calling a route driver a "peddler" does not
alone determine whether he is an employee of the company whose goods he sells
or is in fact an independent contractor. To the extent that article 20 applies only
to nonindependent peddlers, that is, employees, it does not violate Section 8(e),
and Respondent may deter the employer from escaping its lawful obligations by pre-
tense. However, if the route driver is, indeed, an independent contractor, Re-
spondent is prohibited by Section 8(e) from restricting Sealtest or any other sig-
natory employer from doing business with such independent contractor. Whether
or not a route driver who handles the products only of one producer can truly be
an independent contractor 11 is a question which Respondent obviously would like
to have answered negatively, but this question is not in issue here and I make no
decision with respect thereto.12 I decide only that the language of article 20 goes
beyond lawful limits in extending to "anyone."
Respondent suggests, that the language of article 20 is too vague to be susceptible
of construction and therefore cannot be held to violate Section 8(e) of the Act, citing
Minnesota Milk Company, supra. If article 20 is ambiguous, however, doubt as
to its meaning has been removed by evidence adduced at the hearing with regard
to the interpretation which the parties themselves put on it. This interpretation
satisfies me that the parties intended to restrict the transfer of, or establishment of,
routes serviced by route drivers, whether or not such drivers were genuinely inde-
pendent contractors, unless such route drivers should come under all the provi-
sions of the contract. Respondent is not explicit in its reasons for considering
article 20 as too vague or ambiguous to be susceptible of construction. Perhaps
Respondent has in mind the use of the vague "etc." at the end of article 20. If
article 20 of the contract did not also contain the language "the route drivers . . .
will come under the provisions of this Agreement," I might be disposed to agree
that in the phrase "must adhere to all conditions with regard to days off, days the
route operates, etc.," the use of "etc." might create a problem of enforcement in a
specific case beyond "the days off" and "days the route operates," but this does not
prevent the explicit language that the "route driver . . will come under the pro-
visions of this Agreement" from being understood, and this language provides the
restriction which is prohibited by Section 8(e) of the Act.13
On the basis of all the evidence in the case, the Board decisions, and all the law
applicable hereto, I conclude and find that by maintaining in effect, within a period
of 6 months prior to the filing of the charge, article 20 of the contract between Re-
spondent and Associated, including Sealtest, Respondent has "entered into" a con-
tract in violation of Section 8(e) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the business operations 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.
11 To date the law has not , so far as I know, recognized a hybrid type of "restricted
independent contractor," one who is neither an employee nor a fully independent contractor.
12 This question has been decided with reference to such persons as Respondent calls
"peddlers ," to the extent required by the facts, in Milk Drivers and Dairy Employees
Union, Local No. 516, etc . ( Minnesota Milk Company ), 133 NLRB 1314 , affd. 314 F. 2d'
761 (C.A. 8).
131 find inapposite the cases cited by Respondent which consider violations of Sec-
tion 8(a) (5) of the Act. Even if the court decisions cited, such as Retail Clerks Union
Local 770 , Retail Clerks International Association, AFL-CIO ( United States Hardware
and Paper Company, et al.) v. N.L.R.B., 296 F. 2c1 368 (C.A.D.C.), dealing with Section
8(b) (4), were applicable to Section 8(e) cases, I am bound by the Board 's decisions in
all jurisdictions except the one in which the Board has been reversed by the circuit court.
A decision of the Circuit Court of the District of Columbia is not binding in Colorado.
MILK DRIVERS & DAIRY EMPLOYEES, LOCAL UNION 537 237
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend an order that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. Respondent, in its brief, has
supplied the names of employers other than Sealtest and Associated with whom it
has identical contracts containing article 20 as set forth above. It does not appear
with certainty, however, that such employers, other than Sealtest and Associated,
are engaged in commerce within the meaning of the Act. If any be not, it may be
that Respondent can lawfully include article 20 in a contract with such employer.
However, if any other employer be engaged in commerce within the meaning of
the Act, Respondent cannot maintain or enforce article 20 as to him. I shall , there-
fore, recommend a remedy which is broad enough to insure that the Act is not, in
the future, similarly violated as to any employer over whom the Board has, and
would assert, jurisdiction.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Milk Drivers and Dairy Employees, Local Union No. 537, Respondent herein,
is a labor organization within the meaning of Section 2(5) of the Act.
2. Sealtest and Associated are employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. By entering into contracts containing article 20, whereby Sealtest and members
of Associated agree to cease or refrain from doing business with another person or
other persons, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(e) of the Act.
4. Such unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in the case, I recommend that the Respondent, Milk Drivers and Dairy Em-
ployees, Local Union No. 537, its officers, agents, representatives, successors, and
assigns, shall:
1. Cease and desist from entering into , maintaining , or giving effect to article 20
or any other contract provision, express or implied, with Sealtest, Associated, or any
other employer over whom the Board has, and would assert, jurisdiction under the
Act, whereby such employer ceases or refrains or agrees to cease or refrain from
doing business with any other person within the meaning of Section 8(e) of the
Act.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post in Respondent's business offices and meeting halls copies of the attached
notice marked "Appendix." 14 Copies of said notice, to be furnished by the Regional
Director for the Twenty-seventh Region of the Board, shall, after having been duly
signed by official representatives of Respondent, be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all other places where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(b) Furnish to said Regional Director a sufficient number of signed copies of
the aforementioned notice for posting by Sealtest, by each member of Associated, and
by other employers with whom Respondent has contracts containing aforesaid
article 20 and who are engaged in commerce within the meaning of the Act, and
over whom the Board would assert jurisdiction, for posting by such employers, if
they are willing, in places where notices to employees are customarily posted.
141n the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by said Regional Director, shall, after having
been signed by Respondent, as indicated, be forthwith returned to said Regional
Director for disposition by him.
(c) Notify said Regional Director, in writing, within 20 days from the date of
service of this Trial Examiner's Decision, of what steps the Respondent has taken
to comply herewith.15
It is further recommended that, unless on or before the expiration of said 20 days,
Respondent shall have notified said Regional Director, in writing, that it will comply
with the foregoing recommendations, the National Labor Relations Board issue an
order requiring Respondent to take the action aforesaid.
151n the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF EMPLOYERS WHO ARE
PARTIES TO OUR CONTRACT WITH ASSOCIATED MILK DEALERS OF DENVER,
INCORPORATED
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL NOT enter into, maintain , or give effect to article 20 of our contract
with Associated Milk Dealers of Denver, Incorporated, and with other signatories
to said contract, including Sealtest Foods, a Division of National Dairy Prod-
ucts Corporation, or any other contract provision whereby any such employer
ceases or refrains or agrees to cease or refrain from doing business with any
other person within the meaning of Section 8(e) of said Act.
MILK DRIVERS AND DAIRY EMPLOYEES,
LOCAL UNION No. 537,
Labor Organization.
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, 609 Rail-
way Exchange Building, 17th and Champa Streets, Denver, Colorado, Telephone No.
Keystone 4-4151, Extension 513, if they have any questions concerning this notice
or compliance with its provisions.
Wavetronics Industries, Inc. and International Union, United
Automobile, Aerospace & Agricultural Workers of America,
AFL-CIO. Case No. 4-CA-3136. June 3, 1964
DECISION AND ORDER
On March 30, 1964, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and supporting comments.'
1 Having duly considered the matter, Respondent's request for oral argument Is hereby
denied.
147 NLRB No. 33.