Milk Wagon Drivers Etc., Local 603

National Labor Relations Board - Board Decisions

Dec 16, 1963

145 N.L.R.B. 445 (N.L.R.B. 1963)

MILK WAGON DRIVERS, ETC., LOCAL 603 445
of reinstatement was, on November 30, 1962, made to and refused by him,
reinstatement to his former position is not being offered but, upon application,
he will be reinstated.
WE WILL NOT, by means of discharges or statements , or in any other like
or related manner, interfere with, restrain , or coerce our employees in the
exercise of their right to self-organization, to join or assist the above-named
Union or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection or to refrain
from any or all such activities.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of Local No. 1, Amalgamated Jewelry, Diamond and Watch-
case Workers Union, AFL-CIO, or any other labor organization , except to the
extent that this right may be affected by an agreement in conformity with Section
8 (a) (3) of the National Labor Relations Act, as amended.
SAMUEL LEVINE, DOING BUSINESS AS
HOCK AND MANDEL JEWELERS,
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, Squibb
Building, Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if
they have any question concerning this notice or compliance with its provisions.
Milk Wagon Drivers and Dairy Employees Union Local 603,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Drive-Thru Dairy, Inc.
Cases Nos. 14-CC-172 and 14-CE-7. December 16, 1963
DECISION AND ORDER
Upon charges duly filed by Drive-Thru Dairy, Inc., herein called
Drive-Thru, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Fourteenth Region, on
May 8, 1961, issued a consolidated complaint alleging that Milk
Wagon Drivers and Dairy Employees Union Local 603, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called Respondent, had engaged in and was en-
gaging in unfair labor practices within the meaning of Section
8(b) (4) (i), (ii) (A) and (B) and 8(e) of the National Labor Rela-
tions Act, as amended. Copies of the charges, consolidated complaint,
and notice of hearing before a Trial Examiner were duly served upon
the Respondent.
With respect to the unfair labor practices, the consolidated com-
plaint alleges, in substance, that Respondent violated Section 8(e)
of the Act by entering into an implied agreement with Pevely Dairy
Company, herein called Pevely, which is prohibited by that section;
that Respondent violated Section 8 (b) (4) (A) by inducing and en-
145 NLRB No. 42.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraging Pevely's employees to engage in a strike, and by threaten-
ing, coercing, and restraining Pevely, with the object of forcing Pevely
to enter into an agreement prohibited by Section 8(e) ; and that it
violated Section 8 (b) (4) (B) by similar means with an object of forc-
ing Pevely to cease doing business with Drive-Thru.
On June 22, 1961, all parties entered into a stipulation of facts, and
on the same date jointly agreed to transfer this proceeding directly
to the Board for findings of fact, conclusions of law, and decision and
order. The stipulation states, in substance, that the parties have
waived their rights to a hearing before a Trial Examiner, and to the
issuance of an Intermediate Report, and provides, further, that the
charges, order consolidating cases, consolidated complaint, answer,
and the transcript of testimony and exhibits in Carlson v. Milk Wagon
Drivers and Dairy Employees Union Local No. 60.3, IBT (E.D. Mo.,
May 1961) shall constitute the entire record in these cases. On July 7,
1961, the Board approved the stipulation, ordered the transfer of the
proceeding to the Board, and granted permission to the parties to
file briefs. The General Counsel filed a brief.
Upon the basis of the parties' stipulation, the General Counsel's
brief, and the entire record in these cases, the Board makes the
following :
FINDINGS OF FACT
I. THE COMPANIES' BUSINESS
. Drive-Thru Dairy, Inc., is a Missouri corporation having its prin-
cipal place of business in St. Louis, Missouri. Since it commenced
business in February 1961, Drive-Thru has been engaged in the retail
sale of milk and dairy products, bakery goods, and fruit juices.
Pevely Dairy Company, a Missouri corporation, has its principal
place of business in St. Louis, Missouri, and is engaged in receiving
milk, processing it into dairy products, and distributing the products
to customers. During the past year, Pevely purchased, transferred,
and delivered to its principal place of business, milk and other goods
and materials valued in excess of $50,000, which goods and materials
originated from States of the United States other than the State of
Missouri and were transferred directly to Pevely's above-referred to
location. During the same period, Pevely sold and distributed, at its
principal place of business, milk and dairy products, the retail value
of which was in excess of $500,000.
Accordingly, we find, and Respondent admits, that Pevely is en-
gaged in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to assert jurisdiction in these cases.'
'General Drivers, Chauffeurs and Helpers, Local Union No. 886, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(James D. O'Dell and H H. Hulme, Jr., d/b/a Ada Transit Mix), 130 NLRB 788.
MILK WAGON DRIVERS, ETC., LOCAL 603
H. THE RESPONDENT
447
Milk Wagon Drivers and Dairy Employees Union Local 603, In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within the meaning
of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Drive-Thru is a new business venture, headed by Sam Modglin,
which in February 1961 opened a retail dairy store in the Greater St.
Louis area. Pevely processes and sells dairy products to retail outlets
such as Drive-Thru. Pevely is under contract with Respondent,
which represents Pevely's drivers and dock employees, as well as those
of other dairies in this area.
Prior to the commencement of operations, Modglin met with Re-
spondent and informed it that Drive-Thru intended to contract with
a local dairy for the purchase of milk at dockside prices. At this
meeting, Respondent, in the apparent belief that Drive-Thru was lo-
cated outside the Greater St. Louis area, agreed to permit Modglin to
make dockside pickups at dairies whose employees were represented
by it, and instructed Modglin to inform Respondent of his dairy
supplier. On February 8, 1961, after notifying Respondent, Drive-
Thru entered into a contract with Pevely for the purchase of milk.
The agreement, which became effective immediately and was to re-
main in effect for a period of 12 months, provided that Pevely would
sell milk and other dairy products to Drive-Thru at "dockside" cost
based upon Drive-Thru's willingness to pick up its purchases at
Pevely's dock.
Drive-Thru began making pickups at Pevely's dock on February 10
and continued to do so until February 15, when the instant dispute
arose. On February 15 Respondent instructed its members at Pevely
not to load Drive-Thru's truck and these instructions were carried out.
On the same day, Respondent met with Drive-Thru and Pevely and
informed them it had been misled as to the location of Drive-Thru's
store. Respondent stated that, had it known that Drive-Thru's busi-
ness was located in the Greater St. Louis area, it would not have agreed
to allow Drive-Thru to make dockside pickups. Respondent based
this action on the ground that it considered such pickups to be in
violation of the existing collective-bargaining agreement between Re-
spondent and Pevely which provided in pertinent part :
Article 14-A. No customer who normally receives milk or dairy
products via deliveries by drivers of the Employer will be per-
mitted to pick up products at the Employer's docks or premises
whenever that may possibly result in loss of employment of driv-
ers or a reduction in their hours of work.
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As a result of this meeting, Pevely agreed that all purchases by Drive-
Thru would be delivered to the latter by Pevely's drivers. Accord-
ingly, until Respondent was enjoined in the Section 10(1) injunction
proceeding on May 25, 1961, Drive-Thru received its purchases
through delivery by Pevely's drivers and was charged with the cost of
delivery.
The General Counsel does not allege that the above-quoted article
14-A is prohibited by Section 8 (e).' Rather, he contends that Drive-
Thru, as a new business venture, was not a "customer who normally"
received dairy products via deliveries by Pevely's drivers. He argues,
accordingly, that when Pevely orally agreed to cease permitting
Drive-Thru to make its own pickups at Pevely's dock, a new "im-
plied" agreement was entered into which was violative of Section 8 (e).
The General Counsel further contends that, as the new "implied"
agreement was prohibited by Section 8(e), the inducement of
Pevely's employees to strike and the coercion on Pevely to obtain
and enforce this agreement was in violation of Section 8(b) (4) (i)
and (ii) (A). Finally, he contends that this inducement and coercion
was for an object of forcing Pevely to cease doing business with Drive-
Thru in violation of Section 8(b) (4) (i) and (ii) (B). Respondent
argues that its entire course of action was taken solely to enforce its
contractual right to the work specified in article 14-A of the contract;
that the article is not prohibited by Section 8(e), and hence its strike
to enforce the article was not violative of Section 8 (b) (4) (A) ; and,
that its conduct did not fall within the proscriptive ambit of Sec-
tion 8(b) (4) (B). We find merit in Respondent's argument.
Article 14-A does not speak in terms of "present" or "existing"
customers. Its implied thrust is such as prohibits dockside pickups
by any customer of Pevely when such pickups may result in a loss
of work for Pevely's drivers. This interpretation of article 14-A is
bolstered by uncontroverted record testimony that, with the exception
of Drive-Thru, Pevely has not made dockside sales to any customer,
new or old, who does business in the Greater St. Louis area. In our
opinion, Pevely's agreement to sell to Drive-Thru at dockside was in
derogation of its contract with Respondent, and Respondent's action
in causing its members at Pevely to strike was not to require Pevely
to enter into an implied agreement in violation of Section 8(e), but
rather to protect the work of Pevely's drivers under article 14-A of
the contract. Therefore, as Respondent struck Pevely to enforce its
2 Section 8 ( e) provides in pertinent part:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement , express or implied , whereby such employer
ceases or refrains or agrees to cease or refrain from handling , using, selling, trans-
porting or otherwise dealing in any of the products of any other employer , or to cease
doing business with any other person, and any contract or agreement entered into
heretofore or hereafter containing such an agreement shall be to such extent un-
enforcible and void . .. .
MILK WAGON DRIVERS, ETC ., LOCAL 603 449
rights under article 14-A, and the General Counsel has not alleged
that this provision is illegal under Section 8(e) of the Act, the
complaint must fail with respect to the alleged violation of Section
8(e) and 8(b) (4) (i) and (ii) (A).
Furthermore, even were we to accept the General Counsel's conten-
tion that an implied agreement existed between Respondent and
Pevely, we could not, under the circumstances here present, find such
an agreement to be violative of Section 8(e) of the Act. As the record
indicates, the drivers of Pevely, who are represented by Respondent,
have customarily made deliveries of Pevely's products to customers
located within the Greater St. Louis area. Hence, when Pevely agreed
to make dockside sales to Drive-Thru, a customer whose establish-
ment was within the Greater St. Louis area, the drivers of Pevely
were in effect deprived of work which they customarily performed.
In striking Pevely, Respondent had as its object the preservation
of work which traditionally has belonged to employees in its bargain-
ing unit. Because of this, we would not find that Respondent violated
Section 8(e) or Section 8(b) (4) (1) or (ii) (A). In like vein, as
Respondent's object in causing Pevely's employees to strike was to
force Pevely to retain the unit work, the dispute was primary in
character and not proscribed by Section 8(b) (4) (i) and (ii) (B).
Accordingly, we shall dismiss the complaint in its entirety.'
[The Board dismissed, the complaint.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
MEMBER LEEDOM, dissenting :
In agreement with the General Counsel, and contrary to my col-
leagues, I would find that the Respondent violated Section 8(e) and
8('b) (4) (i) and (ii) (A) and (B), as alleged.
The Respondent represents Pevely's drivers and dock employees.
Included in the current contract between the Respondent and Pevely
is article 14-A, which reads :
Article 14-A. No customer who normally receives milk or dairy
products via deliveries by drivers of the Employer will be per-
'Contrary to our dissenting colleague , we do not find that, in striking Pevely, Respond-
ent had as its object the cessation of business between Pevely and Drive -Thru. Section
8(e) does not bar all agreements prohibiting the subcontracting of work See Milk
Drivers and Dairy Employees Union, Local No. 546, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America ( Minnesota Milk Company), 133
NLRB 1314 Nor is all conduct that results in a "cease doing business " violative of Sec-
tion 8 ( b) (4) (1) and ( ii) (B) of the Act Lawful primary conduct does not become illegal
merely because , as in this case, it incidentally affects the primary employer's business re-
lations with another Local 761, International Union of Electrical , Radio and Machine
Worker s, AFL-CIO v N. L.R B. (General Electric ), 366 US. 667, 672.
734-070-64-v of 145-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted to pick up products at the Employer's docks or premises
whenever that may possibly result in loss of employment of
drivers or a reduction in their hours of work.
Prior to doing business with Pevely, Drive-Thru, a new operation,
sought and obtained agreement from the Respondent that it could
make dockside pickups at dairies having employees represented by
the Respondent. Thereupon, Drive-Thru and Pevely entered into a
contract under which Pevely agreed to sell dairy products to Drive-
Thru at "dockside" cost and Drive-Thru agreed to pick up its pur-
chases at Pevely's dock. After notifying the Respondent of its agree-
ment with Pevely, Drive-Thru began to make pickups at Pevely's
dock, and did so for about 5 days. At that time, the Respondent
instructed its members at Pevely not to load Drive-Thru trucks. As
a result, Drive-Thru was unable to secure delivery of its purchases
until Pevely agreed with the Respondent that all deliveries to Drive-
Thru would be made by Pevely's drivers.
It seems clear to me that an object of the Respondent's conduct was
to force a change in the manner in which Drive-Thru and Pevely did
business with each other. Such an object, as the Board has long
held, is a "cease doing business" object within the meaning of Section
8(b) (4) (B) and 8(e) of the Act .4 It would also seem to follow that
the strike, which the Respondent called to accomplish this object, was
in violation of 8(b) (4) (i) and (ii) (B) in that it sought such a
change in relationship, and in violation of 8(b) (4) (i) and (ii) (A)
in that it sought Pevely's agreement to such a change ; further, the
agreement between the Respondent and Pevely to effectuate this
change was in violation of 8(e). I am, therefore, of the view that
the violation alleged by the General Counsel has been clearly estab-
lished. My colleagues, however, find no such violations because they
viewed the Respondent's conduct as designed to protect unit work.
In reaching this conclusion they have, in my opinion, misinterpreted
article 14-A of the Respondent's contract with Pevely, and have failed
to give proper consideration to the Respondent's initial understanding
with Drive-Thru.
According to my colleagues, "Article 14-A does not speak in terms
of `present' or `existing' customers. Its implied thrust is such as
prohibits dockside pickups by any customer of Pevely when such
pickups may result in a loss of work for Pevely's drivers." Thus,
they read this article as a broad prohibition against dockside pickups
by customers, with the only relevant question being whether such
4 See Local S. International Brotherhood of Electrical Workers, AFL-CIO (New York
Telephone Company ), 140 NLRB 729 , and cases cited in footnote 2 therein.
MILK WAGON DRIVERS, ETC., LOCAL 603 451
customer dockside pickups may result in loss of work; they read it as
if it stated :
No customer will be permitted to pick up products at the Em-
ployer's docks or premises whenever that may possibly result in
loss of employment of drivers or a reduction in their hours of
work.
However, it is evident that my colleagues have dropped from the
article the language which qualifies and limits the class of customer
to which the article's prohibition applies, i.e., the customer "who
normally receives milk or dairy products via deliveries by drivers of
the Employer." Read in context and given its usual meaning, the
prohibition applies not to all customers of Pevely; nor to those cus-
tomers within a geographic area, within which Pevely's drivers nor-
mally make deliveries ; but rather to those specific customers to whom
Pevely's drivers normally make deliveries.
As thus interpreted, this article prohibits Pevely from changing its
method of doing business with existing customers, when such change
would adversely affect the work opportunities of Pevely's drivers ; it
is, however, inapplicable to any arrangements Pevely may make with
new customers. As Drive-Thru was a new customer to whom this
article 14-A was by its terms inapplicable, it cannot serve as a defense
to the Respondent's conduct.' Moreover, even if I were to assume,
contrary to the fact, that article 14-A did apply here, or that making
deliveries to new customers such as Drive-Thru was "traditional" unit
work which Respondent could in general lawfully strike to preserve,
I would still find a violation here. As pointed out above, the agree-
ment between Drive-Thru and Pevely with respect to dockside pickups
was not made until after the Respondent had agreed that Drive-Thru
could make such dockside pickups. In view of this agreement, the
Respondent in my opinion has waived any right it might conceivably
have had to rely on either article 14-A or a claim that such deliveries
were traditional unit work.6 To hold otherwise would be to permit
the Respondent with impunity to force alteration of a business rela-
tionship for which it was, in large measure, responsible.
Under all the circumstances, therefore, I would find that the Re-
spondent has violated Section 8(e) and 8 (b) (4) (i) and (ii) (A) and
(B), as alleged , and would enter an appropriate order. As my
colleagues have failed to do this, I must dissent.
5In my opinion the fact that Pevely may not have made dockside sales to any other
customer in Greater St. Louis does not support my colleagues ' position, both because the
language of the contract is clearly to the contrary and because there is no showing that
any other customer sought to make dockside pickups.
e The record does not establish either that Drive-Thru's location was an express condi-
tion of Respondent 's waiver, or that Respondent was misled as to Drive -Thru's location
by anything done or said by either Pevely or Drive-Thru In such circumstances Re-
spondent 's "apparent belief" that Drive-Thru was located outside the Greater St. Louis
area is in my opinion irrelevant to any of the issues in this case.