Piping Rock Farms, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1962

139 N.L.R.B. 879 (N.L.R.B. 1962)

PIPING ROCK FARMS, INC. 879
working foremen, and leadmen , exclusive of salesmen , office clerical em-
ployees, guards, professional employees, and all supervisors as defined in
the Act.
WE WILL reinstate Stephen Freeman, Grant LeRoy Snow, Ray Nate, Ken-
neth Apedaile, Rex Casey, Charles Kent Halvarsen, Ronald Clark, and Gordon
Sorenson to their former or equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of
pay suffered by them because of the discrimination against them, all in the
manner and to the degree recommended by the Trial Examiner in his Intermedi-
ate Report and Recommended Order.
All our employees are free to become, remain, or refrain from becoming or re-
maining members of any labor organization, except to the extent that this right may
be affected by a lawful agreement requiring membership in a labor organization as
a condition of employment.
MADSEN WHOLESALE CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, 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 2, Colorado, Telephone
Number, Keystone 4-4151, Extension 513, if they have any question concerning
this notice or compliance with its provisions.
Piping Rock Farms , Inc. and Milk Drivers and Dairy Employees
Local 584, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and The Greater
New York and Northern New Jersey Milk Dealers Labor Com-
mittee ; Local 602, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America ; and Local
607, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Parties in Interest
Gilmartin Farms, Inc. and Milk Drivers and Dairy Employees
Local 584, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and The Greater
New York and Northern New Jersey Milk Dealers Labor Com-
mittee; Local 602, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America ; and Local
607, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Parties in Interest.
Cases Nos. 9-CA-8311 and O-CA-8346. November 9, 1962
DECISION AND ORDER
On July 25, 1962, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled consolidated proceeding, finding
that the Respondents had not engaged in the unfair labor practices
alleged in the complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached Intermediate Re-
139 NLRB No. 67.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
port. Thereafter, the General Counsel and the Charging Party filed
exceptions to the Intermediate Report and supporting briefs, and the
Respondents filed exceptions.
The Board i 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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated Its
powers in connection with these cases to a three-member panel [ Chairman McCulloch and
Members Leedom and Brown].
2 We hereby correct the following inadvertent errors in the Intermediate Report, which
do not affect the Trial Examiner's findings, conclusions, and recommendations, or our
agreement therewith (1) The designation of the Respondents' counsel is corrected to
read, "Sturm and Perl, by Alan F Perl, Esq." (2)The reference to "Scrabble Farms" is
corrected to read "Hard Scrabble Farms." (3) The sequence in the description of the
negotiating sessions is corrected to indicate that Berger appeared at a meeting of the
New York Labor Committee on August 17, that the Wisch-Marcus telephone conversation
occurred on the following day, that the meeting between Wisch and the Nassau-Suffolk
dealers occurred on about August 19 or 20, and that the appearance of the Nassau-
Suffolk dealers at the first negotiating session occurred on September 27. (4) The state-
ment that unauthorized persons were never asked by the New York Labor Committee to
leave the meeting room is corrected to show that there were requests at various times
that dealers who had not authorized the New York Labor Committee, as well as various
other individuals and groups, leave the meetings (5) The reference to General Counsel's
Exhibit No. 5 in footnote 19 is corrected insofar as the date is concerned to read, "This
list, which speaks of October 16, . .
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The charge in Case No. 2-CA-8311 was filed by Local 584 of the Teamsters
on December 1, 1961, and the charge in Case No. 2-CA-8346 was filed by the
same union local on December 18, 1961. The complaint in Case No. 2-CA-8311
was issued January 25, 1962, and in Case No. 2-CA-8346 was issued January 29,
1962. The cases were consolidated for the purpose of hearing by order of the
Regional Director dated March 8, 1962.
The complaint in each case identically alleged that the Respondent had violated
Section 8(a)(1) and (5) of the Act by refusing to execute a collective-bargaining
agreement negotiated with Local 584 through The Greater New York and Northern
New Jersey Milk Dealers Labor Committee. The answer in each case denied the
commission of any unfair labor practice.
On March 15, 16, 19, 20, 21, 22, and 23, 1962, Trial Examiner William Seagle
held a hearing with respect to the allegations of the complaint at New York, New
York. All parties were represented by counsel, and at the conclusion of the hear-
ing counsel for the General Counsel and for the Respondents briefly presented oral
argument. Although counsel for the Respondents requested permission to file a
brief, and obtained no less than three extensions of time for this purpose, he failed
to file any brief.
Upon the record so made, and based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENTS AND THE METROPOLITAN MILK DEALERS
A. Piping Rock Farms, Inc.
At all material times, Piping Rock Farms, Inc., has been a corporation duly
organized under, and existing by virtue of, the laws of the State of New York, and
PIPING ROCK FARMS, INC. 88 1
has maintained its principal office and place of business at Central Avenue, in the
village of Farmingdale, in Nassau County, in the State of New York, where it has
engaged in the retail distribution of milk and dairy products and related services.
During the past year, which is a representative annual period, Piping Rock Farms
in the course and conduct of its business, derived gross revenues therefrom in excess
of $500,000. During the same period, Piping Rock Farms in the course and con-
duct of its business, purchased and caused to be transported and delivered to its
place of business, oil and gas and other goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of $50,000 were transported
and delivered to it, indirectly in interstate commerce, being received from other
enterprises, including, among others, Paragon Oil Company, Incorporated, which,
although located in the State of New York, had received the said goods and mate-
rials in interstate commerce directly from States of the United States other than
the State in which they were located.
B. Gilmartin Farms, Inc
At all material times, Gilmartin Farms, Inc., has been a corporation duly or-
ganized under, and existing by virtue of, the laws of the State of New York, and
it has maintained its principal office and place of business at 61 Hill Street, in the
village of Southampton, in Suffolk County, in the State of New York, where it has
engaged in the retail sale and distribution of milk, dairy products, and related prod-
ucts. While on a number of occasions, it has made nonretail sales,' its business
consists principally of operating three milk routes, involving sales to individual house-
holders in Suffolk County.
Gilmartin Farms is a wholly owned subsidiary of Furman Farms, Inc, which, in
turn, is a wholly owned subsidiary of Sagtikos Farms, Inc. Both Furman Farms
and Sagtikos Farms are New York corporations which maintain their principal
offices and places of business at Montauk Highway, in the village of Oakdale, in
Suffolk County, in the State of New York. The president of each of the three
corporations is Hulbert Beyer, who is also a stockholder in Sagtikos Farms, and
Beyer makes all the essential decisions governing the operations of the companies,
including decisions with reference to labor relations.
Gilmartin Farms receives its milk from Furman Farms and Scrabble Farms.
Fifteen to twenty percent of the milk purchased by Furman Farms comes from local
Suffolk dairies, while the remainder comes from such dairies as Poland Co-op, Ox-
ford Co-op, and Lowville Co-op in upstate New York. Furman Farms operates a
processing plant for milk and dairy products, which also supplies Gilmartin Farms
and Sagtikos Farms with milk and related products. Sagtikos Farms, in addition to
being engaged in retail operations in Suffolk County, makes nonretail sales that dur-
ing the past year exceeded $80,000 in amount.
Furman Farms also buys all the bottles used by the three companies, and charges
Gilmartin Farms and Sagtikos Farms a fee for the bottles that is included in the
fee for the processing operations. The bottles purchased by Furman Farms are
manufactured by Owens Illinois Glass Company in a plant located near Corning,
New York, and by Thatcher Glass Company in a plant located in Elmira, New
York. The caps or hoods purchased by Furman Farms for the bottles are supplied
by Sealright Company, located in Fulton, New York. During the past year, Fur-
man Farms expended from $8,000 to $10,000 in the purchase of the bottles. Cases
for holding the bottles are purchased by Furman Farms from Baker Case Com-
pany located in Massachusetts. During the past year, the cost of these cases to
Furman Farms amounted to approximately $1,200.
During the past year, Sagtikos Farms and Furman Farms each grossed in excess
of $500,000 from its operations. In addition, Gilmartin grossed in excess of
$120,000 from its operations. During the past year, the three companies received
goods valued in excess of $5,000, and these goods were transported to their places
of business in interstate commerce directly from States of the United States other than
the State of New York.
I find that Gilmartin Farms, Furman Farms, and Sagtikos Farms constitute a
single integrated business enterprise under common ownership and control of Hulbert
Beyer, the president of each of the corporations.
C. The Metropolitan milk dealers
During the past year , the New York Metropolitan milk dealers , who are all the
milk dealers operating in or near the city of New York, including the Respondents
1 These are sales to schools, stores, restaurants, and the like
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and their affiliated companies , in the course and conduct of their respective business
operations , which are both nonretail and retail , sold and distributed products, the
gross value of which exceeded $500,000. During the same period , the New York
Metropolitan milk dealers purchased and received goods valued in excess of $50,000
transported to their respective places of business in interstate commerce directly
from States of the United States other than the State of New York.
Among the Metropolitan milk dealers are Sealtest Foods, Metropolitan Division,
an affiliate of the National Dairy Corporation , and The Borden Company. During
the past year , Sealtest and Borden, and each of them , in the course and conduct of
their respective nonretail business operations , sold and distributed products valued
in excess of $50,000, of which products valued in excess of $50,000 were transported
from their places of business in the State of New York in interstate commerce di-
rectly to other business enterprises located outside the State of New York.
II. THE LABOR ORGANIZATIONS INVOLVED
Milk Drivers and Dairy Employees Local 584, Local 602, and Local 607, all
affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, are labor organizations within the meaning of the
Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
The various milk dealers of the New York metropolitan area have had contracts
with various union locals affiliated with the International Brotherhood of Teamsters
for about a quarter of a century . Among these have been Locals 338 , 584, 602,
607, and 680 . At least since 1955, these contracts have been made for periods of
2 years, commencing to run on October 24 of the year in which the contract was
made , and terminating on October 24 of the second year of the contract term.3 The
contracts, which have contained union-security clauses, have been subject to modi-
fication, or termination , by the Unions upon due notice given 90 days before their
expiration dates
The contract for the period from October 24, 1959, to October 24 , 1961, covered
every employee of the employers employed in or about a milk distributing branch,
pasteurizing plant, and garage in the New York metropolitan area, excluding, how-
ever, branch managers , assistant branch managers , plant superintendents, plant
assistant superintendents , all nonworking foremen, garage superintendents , garage
assistants , garage foremen , supervisors of credits and collections , sales supervisors,
stores department , canvassers , all clerical help , sanitary inspectors , chief electricians,
and laboratory technicians .4
The New York metropolitan area was defined in the contract as consisting of the
city of New York, and the counties of Nassau , Suffolk, Westchester , and Rockland
in the State of New York , that portion of the county of Fairfield in the State of
Connecticut lying south and west of a line projected from Fairfield northwesterly
to the nearest point on the New York State line; the counties of Hudson , Bergen,
Passaic, Essex , Union, Middlesex , Somerset , and Morris in the State of New Jersey,
and that portion of Monmouth and Ocean Counties in the State of New Jersey
bordering on the Atlantic Ocean , including the coastal area designated as the north
shore resort section, and the municipalities of Morgan , Keyport, Red Bank, Long
Branch , Asbury Park , Toms River, and points south to Brigantine Inlet, which
separates the counties of Ocean and Atlantic, in the State of New Jersey.
During the past 15 years the contracts between the milk dealers and the Unions
in the New York metropolitan area have been negotiated through an informal com-
mittee known as The Greater New York and Northern New Jersey Milk Dealers
Labor Committee (hereinafter referred to as the N .Y. Labor Committee), which
has had a membership of some 40 or 50 persons appointed by various groups or
associations of milk dealers, namely, the Milk Dealer 's Association of Metropolitan
2 Each local will hereinafter be referred to by its number , and the three locals will
hereinafter be referred to collectively as the Unions
3 The contracts for the periods from October 24, 1955 , to October 24, 1963, are in evi-
dence as General Counsel's Exhibits Nos 6 , 7, 8, and 9
4 The appropriate unit allegations in paragraph 8 of each of the complaints seem to
be erroneously based upon the Milk Industry Collective -Bargaining Agreement In force
from 1957 to 1959 , and hence include the employees of Hudson Terminal Booth, chief
mechanics of Gates Avenue Shop , and the employees of the tank car shop who were
dropped from the agreement in force from 1959 to 1961. In addition , the "chief elec-
tricians" included In both contracts seem to be erroneously referred to in the same
paragraphs of the complaints as "chief engineers "
PIPING ROCK FARMS, INC. 883
New York, Milk Handlers & Processors Association, Independent Milk Marketing
Association, Sealtest Sheffield Farms, Milk Dealers of Northern New Jersey, West-
chester Milk Council, Nassau-Suff olk, and Dairymen's League.
The chairman of the N.Y. Labor Committee during the past 8 or 10 years has
been Irving Wisch, whose company is Hegeman Farms, located in Brooklyn, New
York The present counsel of the Committee is Robert Abelow. In the 1961
negotiations, the Unions were represented by Samuel T Cohen and Bruce H. Simon
of the law firm of Cohen & Weiss. Dr. Edmund E Vial, who is executive director
of the Milk Dealers Association of Metropolitan New York, has acted virtually as
the executive secretary of the N.Y. Labor Committee, since it was he who has had
charge of obtaining authorizations from the milk companies who wished to be repre-
sented in the negotiations, and of collecting from them the funds necessary to defray
the expense of the negotiations.
The standard form of authorization which has been sent out to milk dealers who
have participated in the negotiations has authorized the N.Y. Labor Committee to
act as the labor bargaining agent of the signatory in any negotiations with the Union
and has expressly provided that the Union had the right to rely upon the authoriza-
tion in dealing with the N.Y. Labor Committee unless and until the same had been
revoked in the manner prescribed therein. The manner of revocation has been by
telegram sent to the N.Y. Labor Committee at least 24 hours prior to 4 p in. of
October 24. It has also been provided in the form of authorization that as long as
it remained unrevoked the signatory agreed that the N.Y. Labor Committee would be
its sole bargaining agency; it would not enter into negotiations with the Union except
through the N Y. Labor Committee; it would abide by all the decisions of the N.Y.
Labor Committee made during the course of the negotiations; and that it would pay
its pro rata share of the negotiation expenses directly through the dealer association
of which it was a member. The form has not expressly provided that the signatory
would sign and execute any contract negotiated by the N Y. Labor Committee, and
it has not been the practice for the Committee to sign and execute a contract on
behalf of the dealers who had signed the authorizations. Subsequent to the con-
clusion of the negotiations , these dealers would sign individual (but identical)
contracts
As for the other mechanics of bargaining, the preliminary work, including the
organization of the Committee and the obtaining of authorizations, as well as the
formulation of industry proposals, appear to have been accomplished in the months
of July and August, and the actual negotiations have not gotten underway until
the month of September. In the actual negotiating sessions , Wisch and counsel
for his committee have met with representatives of the Union in some room in a
New York hotel, and bargaining has taken place across a table. However, on
occasion, members of the N Y. Labor Committee have met in caucuses to consider
their position on a particular issue and sometimes a smaller operating committee has
been appointed by the chairman in connection with a particular problem.
Prior to the commencement of negotiation in 1961, there had occurred a secession
from the established multiemployer bargaining unit in the New York metropolitan
area. In the course of the 1959 negotiations, Local 338 and the employers in
Westchester County with whom it had contracts had withdrawn from the N.Y.
Labor Committee, and had negotiated separate contracts with the employers .5 Local
338 has bargained separately with the Westchester County employers since then
According to Wisch, the Chairman of the N.Y. Labor Committee, Local 338, and
the Westchester County employers, simply adapt the contract negotiated by his
committee to their own needs by tailoring it a bit. There is no evidence that any
unfair labor practice charge had been filed against Local 338 by reason of the
1959 withdrawal.
The record does not show what the membership of Local 338 had been at the
time of its withdrawal but it does indicate the approximate membership of Locals
584, 602, 607, and 680 at the time negotiations commenced in 1961. Local 584
then had approximately 5,000 members of whom approximately 1,000 worked for
Long Island companies ; Local 602 had 700 to 800 members; Local 607 had ap-
proximately 2,500 members; and Local 680, which had contracts mostly with em-
ployers in New Jersey, also had approximately 2,500 members.°
B Apparently, however, difficulties had developed as early as 1955 These difficulties
seem to have been connected with the administration of the pension fund
O These membership figures also represent the approximate number of employees in the
employ of the companies with whom these locals had contracts , since under the terms of
these contracts all employees were required to join the Unions within 30 days of the
beginning of their employment . The membership figures are based on evidence showing
672010-63-vol. 139-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another secessionist movement got underway between the conclusion of the 1959
negotiations and the commencement of the 1961 negotiations. It involved the milk
dealers based in Nassau and Suffolk Counties. Piping Rock Farms and Gilmartin
Farms, the two Respondents in the present proceeding, participated in this move-
ment. The chief leaders of this movement were Russell Meyer, who operated the
Pinewood Dairy; Arthur Berger, who operated the Oak Tree, Kings and Brangle-
brink Dairy; Bernard Marcus, the president of Piping Rock Farms who was also
an officer of Piping Rock Dairy and Crestwood Dairy, and who was active in the
management of all three of these concerns; 7 and Hulbert Beyer, who in addition
to his interest in Sagtikos, Furman, and Gilmartin Farms, also had an interest in
Dairy Rich Products. While the separatist movement was undoubtedly a Nassau-
Suffolk affair, a small segment of the industry in these counties did not, however,
participate in it, either at all or at all stages .8 One of the prominent Nassau-
Suffolk dealers, Willet Evans, who owned the Evans-Amityville Dairy, as well as
several other dairies, seems to have supported the separatist movement to some extent,
at least in its early phases .9
Bernard Marcus, who was the only witness to testify on behalf of the Respond-
ents, recounted the history of the relationship of his own companies with Local
584, in addition to explaining the motives and aims of the Nassau-Suffolk dealers
in breaking away from the N.Y. Labor Committee
It seems that Piping Rock Farms operated originally in New Cassel, Westbury,
Long Island. This was from 1953 or 1954 to 1957. During this period, Piping
Rock Farms was a nonunion company. But on January 1, 1957, Piping Rock
Farms was moved to the same premises at Lynbrook, Long Island, where Piping
Rock Dairy and Crestwood Dairy were already operating. Since the latter two
companies were operating under union contracts, Bernard Marcus and his father
decided that "for harmony and smoothness of the operation," as the former put it,
they would also put Piping Rock Farms into the Union. As Bernard Marcus
testified 'we called the union and said, look, we are putting the company into the
union , and that was it." Asked whether the employees had been "informed of the
fact that they were now in the union," Bernard Marcus replied to the question by
testifying: "I told the union officials to go out and talk to the men " Thereafter,
Piping Rock Farms was conducted as a union operation, even though in July
or August 1961 its operations were again transferred-this time from Lynbrook to
Farmingdale in Long Island. However, Piping Rock Farms did not execute writ-
ten authorizations to the N.Y. Labor Committee either in 1957 or in 1959, although
such authorizations were executed by Piping Rock Dairy and Crestwood Dairy.
As reported by Bernard Marcus, the basic reason why the Nassau-Suffolk dealers
decided to withdraw from the New York City negotiations was that conditions were
different in their suburban counties from those that prevailed in Metropolitan New
York, and that they felt that their needs and interests were being sacrificed in those
negotiations. The Nassau-Suffolk dealers operated, for the most part, small in-
dependent dairies that engaged primarily in the retail distribution of milk, which
meant house delivery over large areas that were not characterized by the density
of population encountered in New York City. In Nassau and Suffolk Counties,
moreover, there were in contrast to New York City, more nonunion pasteurizing
plants, and, as a result, the competition was keener, and there was more pricecutting.
Thus, despite a vast increase of population in Nassau and Suffolk Counties-from
about 400,000 in 1950 to over 2,500,000 in 1959-the retail milk business there
was in a state of steady decline.
The first step taken by the Nassau-Suffolk dealers was to constitute an informal
committee, or group, to visit various areas, such as Baltimore and Boston, to in-
vestigate the methods of operation of the companies in these areas. Since they
the contributions to the pension fund set up by the Milk Industry Collective-Bargaining
Agreement and the payment of dues There is no evidence, however, that any one of the
four locals has ever been certified by the Board as collective-bargaining agent of the
employees whom it has represented.
7 Bernard Marcus is a son of Sam Marcus, the president of Crestwood Dairy, who had
been a member of the NY Labor Committee The son succeeded the father as a member
of the N Y. Labor Committee in 1959
8 General Counsel's Exhibit No 21 shows that 7 Nassau-Suffolk companies with a total
employment roster of less than '10'0 authorized the NY Labor Committee to bargain
for them in 1961, while the companies in these counties who failed to file such authoriza-
tions had a total employment roster of almost 1,000.
9 The attitude of Arthur Berger was also equivocal, for the record shows that he filed
written authorizations with the N.Y. Labor Committee on behalf of at least two of
his companies, Branglebrink Dairy and Kings Dairy.
PIPING ROCK FARMS, INC. 885
had the necessary contacts and the time to devote to this effort, and since they
controlled moreover, approximately 40 percent of the union retail companies in
Nassau and Suffolk Counties, Russell Meyer, Hulbert Beyer, and Bernard Marcus
served on the committee.
Under date of March 13, 1961,10 Russell Meyer addressed a letter to Joseph
Treratola, the president of Local 607, one of the two union locals with members in
Nassau and Suffolk Counties, in which he suggested an informal meeting with an
industry committee consisting of Local 607 employers "to discuss mutual problems
affecting the retail market on Long Island." Among the agenda was listed "a sep-
arate contract for Nassau-Suffolk." Marcus did not testify with respect to this
suggested meeting except to indicate that it was held because, apparently, his con-
tacts were with Local 584 rather than with Local 607, and the record does not
show, therefore precisely what occurred at this meeting.
A separate meeting with Local 584 was arranged about the same time through Sam
Marcus. The meeting was to have been held at a restaurant in Babylon on St.
Patrick's Day (March 17) but John Kelly, the president of Local 584, could not
attend this meeting, and another meeting was arranged. The meeting took place
in the Babylon offices of Local 584, shortly after the canceled meeting, and there
were present at the meeting Kelly, Willet Evans, Beyer, and Sam and Bernard
Marcus. The problems involved in retail milk distribution were discussed at the
meeting, particularly the threat of the complete disappearance of the Borden and
Sheffield retail routes, and the inability of the unions to organize the employees of
the nonunion dealers in Nassau and Suffolk Counties. The dealers present at the
meeting also reminded Kelly of the conditions that had led to the withdrawal of the
Westchester union and employers in 1959, and the meeting broke up with the under-
standing that another would soon be held.
In May, the Foundation To Study the Economics of Distribution of the Dairy
and Bakery Industry, held a meeting at Arden House, a former Harriman estate
at Harriman, New York, now operated by Columbia University and used for
seminars and discussion groups. David Kaplan, an economist once employed by
the Teamsters, and now active in the dairy and baking industries in the United
States, was chairman of the meeting. Among those present at the meeting were
Weiss, chief economist of the Teamsters, David Cole, an impartial arbitrator for
the transit authority in New York City, and Irving Wisch, the chairman of the N.Y.
Labor Committee, who had also had with him a group of New York City milk
dealers. Of the Nassau-Suffolk milk dealers, Beyer and Marcus were the only
ones present. No representative of Local 584 was present at the meeting.
One evening, in the course of the Arden House meeting, Wisch asked Beyer and
Marcus to meet with him and the New York City milk dealers, among whom was
Paul Snell, vice president of Borden's. Wisch and the New York City dealers
had heard, apparently, of the dissatisfaction in Nassau and Suffolk Counties, and
pointedly asked Beyer and Marcus what their gripe was, and the latter no less
pointedly told them that they "were tired of getting a hosing every time they went
into New York," and that they did not intend to participate in the New York City
negotiations.
On June 29, virtually every Nassau-Suffolk milk dealer who had a contract with
any of the Teamster locals met at the Walt Whitman Lounge in Huntington, Long
Island. At the meeting, Marcus and Beyer gave them a report on the Arden House
meeting, and strongly recommended that the Nassau-Suffolk dealers have nothing to
do with the New York City labor negotiations. This recommendation was accepted,
and there was a discussion of the desirability of formally establishing a separate
Nassau-Suffolk labor committee.
At the Arden House meeting, David Cole had mentioned a new technique being
employed in labor-management relations known as the grassroots movement, which
consisted of taking up labor-management problems directly with the employees but
with the collaboration of the Unions involved. It seems that this method had been
employed successfully at International Harvester, and the Nassau-Suffolk employers
decided to adopt this method, and discuss their problems with their employees and
the Unions. Letters were sent to every employee of every union milk dealer in
Nassau and Suffolk Counties who was in the retail business inviting them to attend
a meeting at the Comack Arena in Long Island to be held on July 21, and notices
of the meeting were also posted on the bulletin boards of the Nassau-Suffolk em-
ployers. The latter also extended several invitations to this meeting to such union
officials and business agents as they encountered. Some 400 or 500 Nassau-Suffolk
employees attended the meeting, and so did a number of union-shop stewards. The
chairman of the meeting was a Dr. Wattel of Hofstra College whom the Nassau-
"All dates hereinafter mentioned are in 1961 unless otherwise indicated.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suffolk employers had met at the Arden House meeting. In connection with the
Comack Arena meeting, there was devised a name for the informal committee which
had been operating on behalf of the Nassau-Suffolk employers, namely, "The Joint
Committee To Study the Economics of Retail Milk Distribution in Nassau and
Suffolk Counties" (this committee will hereinafter be referred to as the N-S Labor
Committee). The Comack Arena meeting was reported in the local press and was
also covered by the American Milk Review, a trade magazine.
Under date of July 24, Russell Meyers, as chairman of the N-S Labor Committee,
sent identical letters to Kelly, Treratola, and James W. Kerr, the heads, respectively,
of Locals 584, 607, and 602, inviting each of them to attend a meeting with the
Nassau-Suffolk employers to discuss their problems. However, no replies to these
letters were ever received.
There were no further meetings held by the Nassau-Suffolk employers because,
apparently, the N.Y. Labor Committee was going into action and taking the pre-
liminary steps to launch the negotiations with the Unions for a new contract."
Under date of August 10, Dr. E. E. Vial sent out the usual letter addressed to "All
dealers operating in the Greater New York and northern New Jersey area who are
parties to the standard industry contract with the Teamsters Union Locals 584, 602,
607," requesting that they send in their authorizations for the 1961 labor negotia-
tions, and enclosing with the letter the standard form of authorization. 12 The
Respondents, Piping Rock Farms and Gilmartin Farms, ignored this request for
written authorizations, and never sent any to the N.Y. Labor Committee, nor did
any of their affiliated or subsidiary companies, namely, Piping Rock Dairy, Crest-
wood Dairy, Furman Farms, or Sagtikos Farms
Under the date of August 10, 1961, Irving Wisch, as chairman of the N.Y. Labor
Committee, also sent a circular letter to members of the N.Y. Labor Committee,
reminding them that the members of the Committee were to meet at 10 a.m. on
August 17, at the Barbizon-Plaza Hotel in order to review the proposals prepared
by the industry drafting committee that were annexed to the circular letter. It was
stressed in the letter that it was important for the members to attend the meeting be-
cause it would be the last one held prior to the submission of the industry's proposals
to the Unions, and that the proposals approved on August 17 would be those sub-
mitted to the Unions. A copy of the circular letter was sent to Arthur Berger,
Hulbert Beyer, Willet Evans, Bernard Marcus, Russell Meyers, and Richard Santa
Maria (as alternate)13 but the membership of the N.Y. Labor Committee had not
yet been finally determined, and the mailing actually went to the members who had
been involved in previous negotiations.
Before negotiations opened in New York City, the group of employers represented
in the N-S Labor Committee decided that they would not authorize the N.Y. Labor
Committee to bargain for them, and that they would not attend the negotiations in
New York City. However, they also resolved to send an emissary to the N.Y.
Labor Committee to explain their abstention. Arthur Berger volunteered for this
mission, since he felt that he owed the N.Y. Labor Committee some explanation
after his years of association with them.
The first negotiating session in New York City took place on September 27. The
very next day Marcus received a telephone call from Wisch, who, after commenting
on what he characterized as the bombshell that Berger had dropped at the meeting,
asked if he could not meet with the Nassau-Suffolk people, so that something could
be worked out. In a day or two, a meeting was arranged, and Wisch came out to
Long Island to talk to the Nassau-Suffolk dealers, who included Evans, Berger,
Meyer, and Sam and Bernard Marcus.14 The Nassau-Suffolk dealers explained to
Wisch that they felt that their interests were being neglected in New York, and that
they were in fact in danger of losing their businesses. Wisch told them, however,
that they were naive if they though that the Unions would come out to the woods
and negotiate with them when the rest of the industry was negotiating in New York,
and warned them that whatever was negotiated in New York would simply be
rammed down their throats. According to Marcus, Wisch, who had a picturesque
way of expressing himself, asked them: "Do you think you got big muscles?" Wisch
finally suggested that, instead of authorizing the N Y. Labor Committee to bargain
for them, they come to New York to make their position clear and to enter into
separate negotiations with the Unions with respect to their particular problems.
11 The Unions had served notice of their desire to renegotiate the existing contracts
Such notices were received by Piping Rock Farms and Gilmartin Farms
12The letter was actually drafted by Dr. Vial and counsel for the Committee
13 He was the general manager of One Oak Dairy.
14 There were also present Santa Maria, Donofrio, the manager of Evans Dairy, and a
Miss Salerno , who had an interest in One Oak Dairy.
PIPING ROCK FARMS, INC. 887
After some discussion, the Nassau-Suffolk dealers decided to accede to Wisch's
suggestion. When the Nassau-Suffolk people made their first appearance at the
New York negotiating sessions, it occasioned some surprise because word of their
defection had gotten around, and they were kidded about their presence there. This
led Russell Meyers, who was acting as spokesman for the group, to make it clear that
they were there at Wisch's request, and that they intended to take care of their own
problems. He also intimated that the Unions might be negotiating with them in
Nassau and Suffolk Counties.
Between September 27 and October 23, there were meetings between the Unions
and the N.Y. Labor Committee almost around the clock, and there were innumerable
caucuses and negotiating sessions In addition to what the participants in such
negotiations usually call the "money package," the two chief issues were a change in
the method of timekeeping (called the timeclock issue) and the elimination of the
delivery of milk on Sunday (called the Sunday delivery issue). The Sunday delivery
issue was of special importance and concern to the industry as a whole but particu-
larly to the Nassau-Suffolk dealers.
Marcus and Beyer, as well as other members of the N-S Labor Committee,
attended some of the caucuses and most of the negotiating sessions of the N.Y.
Labor Committee, although they would also attend their own caucuses.15 The record
shows clearly, however, that attendance was not strictly limited to members of the
N Y. Labor Committee, or even to dealers who had sent in authorizations to the
Committee. The Committee had no sergeant-at-arms or anyone else in the nature of
a bouncer, to keep unauthorized personnel out of the negotiating room. The question
of authorization was raised, to be sure, on a few occasions during the negotiating
sessions , is and in the early sessions the names of dealers who had authorized the
Committee might be read across the negotiating table. Even at caucuses the policy
on attendance does not appear to have been very strict . 17 Whatever strictness was
manifested appears to have been in connection with executive sessions of the Com-
mittee. When the Committee went into executive session, dealers who were not
members of the Committee would sometimes be asked to leave the room.18 There
never was any request for all unauthorized persons to leave the room.
Marcus and Beyer, as well as other members of the N-S Labor Committee, spoke
at some of the caucuses and negotiating sessions attended by them, although, strictly
speaking , it was against the rules for anyone to speak at the sessions-authorizing
dealers or even members of the Committee could not speak, this privilege being
reserved to its chairman and counsel . But, when members of the Nassau -Suffolk
group did speak at the negotiating sessions-particularly Berger and Marcus-they
spoke primarily on the topic that was of the most absorbing interest to them, namely,
the elimination of Sunday delivery. Later on in the negotiations, they were also fairly
vocal when the subject of the money package was under consideration. However,
on certain issues with respect to which there was no conflict with the position of the
Nassau-Suffolk dealers, Wisch would also state their position to the Unions.
At the same time that members of the Nassau-Suffolk group were sitting in on
the New York City negotiations, they were also talking separately and directly with
the Unions This occurred at two meetings with the Unions. Moreover, Wisch
himself appears to have made announcements at sessions of the N.Y. Labor Com-
mittee that these meetings would take place, and at least in the case of the second
meeting, he recessed the N .Y. Labor Committee meeting, so that the separate meet-
ing could be held.
The first of the two meetings was held in the Park Avenue Room of the Delmonico
Hotel on or about October 10. On behalf of Local 584, there were present at this
meeting not only Kelly but two other representatives of the Union, Ike Bogin and
Carlo Ferrara; on behalf of Local 602, there was present Kerr; and on behalf of
Local 607 there were present Moe Di Lorenzo and Henry Franks. However, counsel
for Local 584 did not attend the meeting. The Nassau-Suffolk dealers who were at
15 Indeed , Marcus himself testified that he missed only a few of the negotiating sessions
18 Wisch testified that on one occasion he did ask two dealers to leave the room but he
explained that he did so because they had first authorized the Committee, and then had
withdrawn their authorizations , and the union representatives had asked him what they
were doing there , in view of their withdrawal
17 Wisch himself testified that at some of the caucuses persons who had not authorized
the Committee were allowed to speak their minds. He explained that since they were in
the industry they were briefed as to the situation at the time, and the Committee even
listened to any suggestions which they might have to offer.
11 It was the recollection of Robert Abelow, counsel to the Committee, that Berger,
Marcus, Beyer, and Meyers were in the room when such requests were made, and that
they did not leave the room on such occasions
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting were Berger, Evans, Meyer, Beyer , and Marcus . In addition to members
of the N.Y Labor Committee who had operations in Nassau and Suffolk Counties,
Harry Renken and Harry Heller joined the group at the meeting as observers. The
subjects of discussion at the meeting were the economic problems confronting the
dealers in the retail milk business in Nassau and Suffolk Counties , and two charts
illustrating this problem , in which the union people showed considerable interest,
were exhibited.
The second meeting with the unions took place in the evening on October 19 or 20,
in a service pantry adjacent to the main meeting room of the N.Y. Labor Committee.
Apparently , the same employers who were present at the first were also present at
the second meeting but there was less representation from the Unions . Local 602
does not appear to have been represented at all, and, although Kelly was present
at the second meeting, Bogin and Ferrara were absent . On the other hand , Joseph
Treratola , who had not been at the first meeting , was present at the second meeting,
and seems to have constituted himself , indeed, the chief spokesman for the Unions.
The principal topic of discussion at this second meeting appears to have been the
Sunday delivery problem, and Beyer was outlining a proposal in this connection on
which the Nassau-Suffolk dealers were working when Wisch burst through the
hanging curtains that separated the pantry from the main meeting room. Marcus
testified with respect to Wisch's intrusion into the meeting, as follows:
Mr. Wisch came through the hanging curtains that separated this room
from the other room and he kind of burst in , in his own inimitable fashion,
and said, "Look , can I help you guys, what's going on? Maybe I can add
something?"
At that Mr. Treratola exploded . He said , "Now, look, Irv, these guys are
going fine , this is their baby , this is their problem ; let them alone. They don't
need any help from you. They are doing okay."
So Irv turned to him and said, "Now , look. Yussell , take it easy. Don't get
excited . Remember I, too, have interests in the retail milk business for my
company in Nassau and Suffolk County."
So Joe said to him something that went , "All right you want to be here,
sit down and keep your mouth shut for once and let them talk."
And Mr. Wisch sat there.
On October 23, a point was reached in the negotiations between the N.Y. Labor
Committee and the Unions at which the Committee offered the unions a $7 money
package. This offer brought about a physical withdrawal of the Nassau-Suffolk
group from the negotiations . Berger told Wisch that the industry was offering more
than the Nassau -Suffolk people could pay, and that the time had come for a parting
of the ways . He also told Wisch that the Unions had been notified to this effect,
and, in addition , it seems that Wisch made an announcement of the withdrawal of
the Nassau-Suffolk group at the meeting of the Committee that day. The with-
drawal took place prior to 10 a.m. and when the Nassau-Suffolk group withdrew
they stood around in the hallway with their coats on, somewhat at a loss as to where
to go, or what to do While they were still standing there, one of the group-
Marcus thought it was probably Evans-remarked something to the effect: "Gee
whiz, I still have an authorization for a segment of my business into the New York
committee . I can't be riding two horses at once. I have the wholesale in there
and the retail out here and I don 't know what direction to go in ." This, apparently,
reminded Berger that he. too, had authorized the N .Y. Labor Committee to bar-
gain for one or two of his subsidiaries , and he went back into the main committee
room where the telephones were located , and dispatched identical telegrams to Local
584 and Local 607. The telegrams , which were signed by Berger as "Chairman
Nassau-Suffolk Milk Dealers Labor Committee" read as follows:
Nassau Suffolk members under authorization to the New York and Northern
New Jersey Labor Committee hereby withdraw their authorizations effective
24 hours after receipt of this telegram.
While the Nassau-Suffolk group was still standing in the hall, someone came out
and suggested that they could go to an extra room down the hall that was used as
a pressroom . In this room , shortly after the withdrawal and the sending of the
telegrams . the Nassau -Suffolk group had a separate meeting with the union repre-
sentatives , Wisch having informed the latter that the group wished to talk to them
about the auestion of Sunday delivery. in testifying about the meeting, Marcus
stated that "a full union committee " attended it, by which he meant that all the
representatives of the Unions and their counsel whom they were accustomed to
see at meetings were present. A full discussion concerning a 6-day delivery proposal
that had been prepared by Beyer took place at the meeting . At one point in the
PIPING ROCK FARMS, INC. 889
meeting Cohen asked Marcus what dealers his group purported to represent, and
Marcus worked up a list of such dealers for him from memory, since he did not
have with him the written authorizations signed by these Nassau-Suffolk dealers.19
The meeting between the members of the N-S Labor Committee and the union
representatives on the morning of October 23 lasted from 11/2 to 2 hours. It broke
up, finally, when Wisch burst into the room , and carried off the union representatives
who, by their presence there, had halted the negotiations with the N.Y. Labor
Committee.
By the morning of October 24, it became apparent to all parties concerned that
agreement could not be reached on new contract terms before the existing contract
would expire that day. The union officials recommended that the existing contract
be extended pending further negotiations but the membership of Local 584, meeting
at Sunnyside Gardens in Queens at 3 p.m., voted to strike, and went out on strike
at 4:01 p.m. The members of Locals 602 and 607 did not join the strike until
the next day, while the members of Local 680 did not go out on strike at all.
The strike seems to have introduced a large measure of confusion into the nego-
tiations with the N.Y. Labor Committee. The negotiating room became crowded
with a large number of dealers and other people-indeed there were hundreds of
people on the scene. William J. Abelow, the son of Robert Abelow, counsel to
the N.Y. Labor Committee, testified: "During the closing days, it got to be kind
of a circus."
The Nassau-Suffolk group had been absent from the negotiating sessions after the
withdrawal on October 23, and during the whole day on October 24. However, on
October 25, in the latter part of the afternoon, while the strike was still in progress
and the dealers in the Nassau-Suffolk group were sitting in the pressroom down the
hall from the negotiating room, Wisch came into the room, and told them that there
was no sense in their sitting there all alone where no one would talk to them while
the scene of the negotiations was "loaded with people." Wisch also suggested that
they return and sit in the back of the negotiating room, where they could at least
find out what would happen to their businesses. The Nassau-Suffolk dealers, there-
fore, trooped back into the negotiating room, and simply sat there in the rear. No
announcement was made with respect to the significance of their return, either by
Wisch or by one of themselves, certainly not in the sense that they had authorized
or reauthorized the Committee to bargain in their behalf, nor was any such announce-
ment made at any subsequent negotiating session. When they first returned, however,
Wisch seems to have said something to the effect that they were there as observers.
Thus, when Marcus was asked: "On October 25th when Nassau-Suffolk Committee
physically returned to the negotiating room, do you recall Irving Wisch stating in
response to a question by Mr. Cohen that 'Nassau-Suffolk was not as yet negotiating
with us but since I think they will be, let them observe,' " he replied: "Yes. Roughly,
in those words."
Although when they first returned to the negotiating room the Nassau-Suffolk
contingent sat silently in the rear , its members spoke up later in the course of the
negotiations that finally led to the settlement of the strike . They became articulate
especially as the size of the money package increased progressively . However, in
speaking in the negotiating sessions , there is nothing to show that they did so more
frequently or differently than had been the case prior to October 23. Indeed, there
are indications that after the strike the attendance of the Nassau-Suffolk dealers
at the negotiating sessions became more sporadic and that the N-S Labor Committee
as a group began to break up.20
"At page 293, line 19, of the transcript of the hearing , Simon referred to a notation
at the bottom of the list, reading: "Rec'd from Bernie Marcus 10/26/61, 11.15 am,
Parlor A" The date, "10 /26/61 ," is obviously in error The list is in evidence as
Exhibit No 13, and the notation on the list itself shows that it was received on Octo-
ber 23 The names of 22 Nassau-Suffolk companies appear on the list An earlier list
of dealers who had authorized the N-S Labor Committee to represent them is in evidence
as General Counsel's Exhibit No. 5. This list, which speaks of October 14, consists of
only 15 companies It was handed to William Abelow, son of Robert Abelow, counsel to
the NY Labor Committee, by someone on the N-S Labor Committee To this list
is attached the form of authorization employed by the N-S Labor Committee It is
identical with the form of authorization used by the NY Labor Committee
20 While Marcus himself was present as late as November 6, at a meeting of a sub-
committee of the NY Labor Committee that appears to have been considering the
timeclock problem, his attendance was wholly adventitious Exhausted by lack of sleep,
and feeling 111, he was lying down in the room when the subcommittee came into the
room and roused him. One of the subcommittee then insisted that he remain and give
them some help.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the morning of November 6, Marcus and Beyer were in the room of
the hotel where the N.Y. Labor Committee had been holding its meetings. They
were the last two of the Nassau-Suffolk group who were still around and Beyer was
about to leave for home. Wisch came up to them and informed them that he
could settle the strike by agreeing to the retention of Sunday delivery with the
understanding that within 120 days the Unions would discuss with the companies
the elimination of Sunday deliveries in Nassau and Suffolk Counties. Upon re-
ceiving this information Beyer declared to Wisch: "Irv, people have been running
over my back now for two weeks out in Suffolk County. Every non-union com-
pany has rolled over me, I'm the only one not in operation. If you want to roll
over me, go ahead, too, or any of the other people. It's your privilege to do so."
Then he added: "What have we got left?" This is what we came in for. We have
been on strike for two weeks. I'm prepared to sit another two weeks more if
we have to. Let's wind it up good " At this point, Robert Popper, the vice chair-
man of the N.Y. Labor Committee, who had retail operations in Nassau and Suffolk
Counties, being connected with Delwood Dairy, came up and declared: "Well, if
New York City rolls, I've got to sign for Nassau and Suffolk County. I guess this
is where the rats leave the ship." Thereupon, Marcus turned to him and remarked:
"Well, Bob, it figures I guess it's time to say goodby rat."
On November 4, history repeated itself in the respect that another secession from
the N Y. Labor Committee occurred. This time it was Local 680 that defected
Larry McGinley, its president, announced that he was withdrawing from the joint
negotiations with the other locals, and expected the New Jersey employers to meet
with him in Newark. These employers told Wisch and Abelow that they had no
choice but to follow McGinley to Newark, and they did so. The New Jersey em-
ployers had filed written authorizations with the N.Y. Labor Committee, and there
is nothing to show that they had ever revoked such authorizations prior to their
withdrawal. Indeed, since revocations could be made effective only prior to
October 24, revocations could not have been filed on November 4, the date on which
Local 680 withdrew from the joint negotiations. Moreover, the other locals con-
sented to the withdrawal of Local 680, and no unfair labor practice charges have
been filed against this local.
The strike was finally settled as midnight approached on Monday, November 6,
which was the eve of Election Day in New York, and the trucks rolled the following
morning. Apparently, the mayor's office participated in the settlement of the strike
through two representatives, namely, Theodore Keel and David Kaplan. Indeed,
the record shows that Mayor Wagner himself had attended the meeting at the
Delmonico Hotel on November 5. Apart from the money package, which had then
reached $11, the settlement agreement disposed of the two most troublesome issues
by submitting the timeclocks issue to binding arbitration before David L. Cole, Esq.,21
and by relegating the Sunday delivery issue to further discussion within 120 days
between Locals 584, 602, and 607 and the companies under contract with these locals
"having operations in the Counties of Nassau and Suffolk." With respect to the
latter issue, however, it was expressly provided that the issue could be resolved only
by mutual agreement, which was defined as actual agreement and excluded arbitra-
tion.22 While Marcus and Beyer had knowledge, prior to the settlement of the
strike, that the settlement would include these terms, there is no affirmative evidence
that they were present at the meeting at which the proposals were formally presented.
Under date of November 28, which was after they had left the scene of the
negotiations in New York City, the members of the N-S Labor Committee sent
identical telegrams to Locals 584, 602, and 607, stating their willingness to bargain
with these locals. The text of the telegram was as follows:
Now that the labor negotiations with the Greater New York and Northern
New Jersey Labor Committee are completed we of the Joint Committee to
Study the Economics of Retail Milk Distribution in Nassau Suffolk Counties
who never authorized the Greater New York Committee to bargain on our
behalf are still ready to meet with you and bargain in good faith
The agreement that settled the strike was in the form of a series of modifications
of the preexisting contract. These would require, of course, the revision and re-
printing of the preexisting contract, and the new contract could not be submitted,
a This arbitration took place on February 16, 1962
22 Although virtual agreement on the terms of the settlement was reached on Novem-
ber 6. prior to the termination of the strike, the settlement agreement was not actually
signed until the early hours of the morning of November 10
PIPING ROCK FARMS, INC. 891
immediately, therefore, to the individual dealers for their signatures. However, in
the weeks following the conclusion of the settlement agreement, Local 584 received
word from its business agents that various companies in Nassau and Suffolk
Counties, including the Respondents, were denying that they were bound by the
settlement agreement. In order to test their sentiments, a form of endorsement of
the settlement agreement was devised by Local 584 which, if signed by an employer
to whom it was submitted, would oblige him to adhere to all its terms and condi-
tions 23 One of these forms of endorsement was carried to Marcus by one of the
business agents of Local 584, and when he failed to sign it, he received a telephone
call early in December from Simon, who asked him whether, if the contract were
printed, he would sign it. Marcus replied in the negative, and suggested that Simon
speak to his lawyers, the firm of Strum and Perl. A few days later Simon called
Strum, who told Simon that he would look into the matter and contact him later.
On or about January 8, 1962, Simon talked to Perl and asked the latter whether
Gilmartin Farms was refusing to sign the contract. Perl informed Simon that this
was true. Both Respondents admit they they have refused to execute the 1961
Milk Industry Collective-Bargaining Agreement.
In the 2 months following the strike, the employees of nine Nassau-Suffolk milk
companies filed decertification petitions. Among these employees were those of
the Respondents. In the case of two of these petitions, filed by the employees of
Oak Tree Farm Dairy and Pinewood Dairy, the Board informally reviewed the
action of the Regional Director in dismissing the petitions, and sustained him.
Prior to the commencement of the 1961 negotiations, there is no doubt that the
Nassau-Suffolk dealers were part of the multiemployer bargaining unit in the New
York metropolitan area as defined in the industry contracts and that Locals 584,
602, 607, and 680 represented a majority of the employees in such unit. The filing
of the decertification petitions after the termination of the 1961 negotiations by
employees of Nassau-Suffolk dealers casts doubt upon the majority of Local 584
only as of this subsequent time.
But the Board has recognized the right of employers to make timely withdrawals
from multiemployer bargaining units and has held them to be bound by group action
only when they have unequivocally manifested an intention to be bound by such
action.24 Thus the right has been denied only when the attempted withdrawal took
place after negotiations had commenced, or it was equivocal or there was present
some element of estoppel that prevented the employer from withdrawing.25 These
factors do not appear to exist in the present case.
It is implicit in the allegations of the complaints that the Respondents bargained
in 1961 through the N.Y. Labor Committee that they authorized the Committee to
bargain on their behalf in the 1961 negotiations . The General Counsel concedes
that no such written authorizations were filed by or on behalf of either of the Re-
spondents. He was also unable to show that such authorizations were filed by or on
behalf of any of the Nassau-Suffolk dairies that were either affiliated with or controlled
by either of the Respondents , such as Furman Farms, Sagtikos Farms, Piping Rock
Dairy, or Crestwood Dairy. Moreover, the very fact that the normal practice was
for dealers who wished to authorize the N.Y. Labor Committee to bargain for them
to file written authorizations puts a particularly heavy burden on the General Counsel
in'his attempt to establish an implied authorization.
Everything in the record militates against the conclusion that the Nassau-Suffolk
dealers had impliedly authorized the N Y. Labor Committee to bargain for them in
1961, without limitations. The discontent of the Nassau-Suffolk dealers with the
existing situation had been pretty well advertised both to the industry and to the
Unions at least several months prior to the commencement of the 1961 negotiations.
Such at least is the significance of the Babylon meeting in March, the Arden House
meeting in May, the Walt Whitman Lounge meeting in June, and the Comack Arena
meeting in July. Thus, there was a meeting at which either union officials or industry
representatives or both were present during every single month actually preceding
the commencement of negotiations in 1961. Moreover, these meetings were not
confined merely to the airing of discontent. The intention to withdraw from the
New York City negotiations was also made manifest. Indeed, Wisch was specifi-
23 It is in evidence as General Counsel's Exhibit No 14
24 Retail Associates, Inc, 120 NLRB 388, 394-395; Krist Gradis, at al.. 121 NLRB 601,
609; Scougal Rubber Mfg Co et al, 126 NLRB 470; Northern Nevada Chapter, National
Electric Contractors Association, et al, 131 NLRB 550
25 Morgan Linen Service, Inc, 131 NLRB 420; Anderson Lithograph Company, Inc.,
124 NLRB 920; and Cosmopolitan Studios, Inc, 127 NLRB 788
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cally told by Marcus and Beyer in the course of the Arden House meeting that they
did not intend to participate in the New York City negotiations That this intention
was shared by a majority of the Nassau -Suffolk dealers was made perfectly clear
when, finally , a separate N-S Labor Committee was launched at the Comack Arena
meeting. To remove the slightest doubt as to the intentions of the Nassau -Suffolk
dealers , a special emissary was sent to the first negotiating session of the N Y
Labor Committee to explain their position.
In the end , to be sure , representatives of the Nassau -Suffolk dealers , including
Marcus and Beyer, did attend the negotiating sessions of the N.Y. Labor Committee.
But not only did they do so at the instigation of Wisch but also under such cir-
cumstances that neither he nor his Committee as a whole could be under any mis-
apprehension as to the true significance of their attendance . If there was mis-
understanding about this , and their appearance occasioned some surprise , it should
have been apparent after the statement made by Russell Meyers that they were
attending the negotiations only to protect themselves
Indeed , as Wisch pointed out to them , they could protect their interests only by
appearing on the negotiating scene in New York. This was certainly a realistic
point of view . The Nassau-Suffolk dealers had attempted to lure the representatives
of Local 584 to Long Island but with only indifferent success. There was, therefore,
no other alternative but to come to New York. It was only another illustration of
the old proverb : if the mountain would not come to Mahomet , Mahomet would have
to come to the mountain.
The General Counsel seems to rely heavily upon the comings and goings of Marcus
and Beyer , as well as of the other Nassau-Suffolk dealers, as proof that they had
authorized the association to bargain for them , and that they were in fact bargain-
ing through the association But the mere presence of persons upon a scene is the
weakest possible evidence of their intentions . They may be there for all sorts of
reasons, and with many reservations . Many other dealers , in addition to those from
Nassau-Suffolk , were present at the sessions of the N.Y. Labor Committee, who really
had no business there , strictly speaking . It would be going pretty far to imply bind-
ing authorizations to the N Y. Labor Committee on the part of the Nassau-Suffolk
dealers to commit the latter to any contract because they were present at certain
meetings and failed to leave when certain categories of persons were asked by the
chairman of the Committee to leave. The Nassau-Suffolk dealers were in such a
special category in 1961 , that the general rules of the Committee could hardly be
said to apply to them. Moreover , the rules of the Committee , which had no formal
organization , and no written set of rules , were pretty fluid, consisting really of the
rules made up by the chairman ad hoc 26 That the Nassau-Suffolk dealers were in
a special category was recognized in many ways at the negotiating sessions of which,
certainly , not the least significant was the fact that, when Wisch announced a com-
mittee position , he would add , when he knew that this position , was not shared by the
dealers from Nassau-Suffolk , "except for Nassau-Suffolk."
The General Counsel seeks also to make much of the telegrams of withdrawal
sent to Locals 584 and 607, despite the fact that if all the Nassau-Suffolk dealers
had filed prior written authorizations to the N.Y Labor Committee, the telegrams
would undoubtedly have constituted valid withdrawals under the terms of these
authorizations . Certainly the telegrams are not substitutes for the written authoriza-
tions that were never sent. But even as evidence of general and unconditional par-
ticipation in the negotiating sessions on the part of Marcus and Beyer , or other
members of the N-S Labor Committee , the telegrams are not clear and cogent for
the reason that some of the Nassau-Suffolk dealers, including Evans and Berger,
had filed written authorizations for their subsidiary companies , and felt that the
telegram was necessary in view of these commitments . That in fact there really
may have been no need to send the telegrams does not remove the elements of con-
fusions in the situation , nor does the fact that Berger in all probability signed the
telegrams as chairman of the N-S Labor Committee by mistake make them binding
on all the Nassau -Suffolk dealers, including the Respondents
If the telegrams of withdrawal are, indeed, proof of prior unconditional authoriza-
tion, then, surely , it may no less reasonably be argued that the separate negotiating
session of October 23, in which the Nassau-Suffolk dealers and the representatives
of Local 584 seemed to have fully participated , constituted clear recognition by the
2e Wisch, in testifying for example, that it was against the rules for anyone except
the chairman and coun-el for the Committee to speak at the negotiating -essions, made
it clear that if Marcus or Beyer or other Nassau-Suffolk dealers spoke at these sessions,
it was only one more irregularity.
PIPING ROCK FARMS, INC. 893
union that at least from that point on the Nassau-Suffolk dealers wished to bargain
directly and exclusively with the union.
The Nassau-Suffolk dealers returned, to be sure, to the common negotiating scene
after the strike-again at the special invitation of the chairman of the N.Y. Labor
Committee-but by then the confusion had become so great that their presence
had become more equivocal than ever. Essentially, they were there, as scores of
others were there, as observers. The strike, having idled everyone, the number of
observers naturally multiplied. By their return, the Nassau-Suffolk dealers did not
fundamentally change their status in any way, nor did Wisch as chairman say any-
thing, with or without their consent, that in any way altered the preexisting situation.
I am aware that the counsel for Local 584 who testified at length at the hearing
gave testimony to the effect that on the day following their return to the main scene
of the negotiations Wisch, in presenting a new industry proposal, made an announce-
ment to the effect that the Nassau-Suffolk group had rejoined or reauthorized the
Committee. I do not credit this testimony, which I believe to be based on a
mistaken recollection. The variances in this testimony on direct and cross-examina-
tion-there is quite a difference between rejoining and reauthorizing and also be-
tween speaking "to" the Nassau-Suffolk Labor Committee and speaking "for" them-
is in itself sufficient reason to doubt its accuracy. It is no doubt the sort of an-
nouncement that the witness would have liked Wisch to have made. But none of
the other witnesses could remember any such announcement, and I do not believe
that it was actually made.
Yet, in my view of the case it would not matter very much if Wisch did make the
announcement attributed to him. If the Nassau-Suffolk dealers were indeed "re-
authorizing" the Committee the day after their withdrawal, they were only re-
authorizing it to do what it had been doing before. Actually, this was not at any
time clearly defined. It is undoubtedly true that on some occasions and to some
extent at least the chairman of the N.Y. Labor Committee was also speaking for
the Nassau-Suffolk dealers, and that in a sense it could, perhaps, be said that he was
negotiating also on their behalf. But, in view of the events that both preceded
and followed the organization of the N-S Labor Committee, it could hardly be sup-
posed by those participating in the negotiations that the chairman of the N.Y. Labor
Committee had unconditional authority to bind the Nassau-Suffolk dealers with
respect to any and all matters 27 Actually, it would be a more realistic description
of what happened during the 1961 negotiations to say that the Nassau-Suffolk
dealers were there bargaining on their own behalf but making use of the facilities
of the N.Y. Labor Committee to the extent that this suited their convenience, or
to the extent that it was unavoidable. As the Nassau-Suffolk dealers were bargain-
ing on their own behalf, there had to be a meeting of the minds on all issues involved
in the negotiations with Local 584 but is clear that the Nassau-Suffolk dealers did
not accept either the money package to which the other dealers had agreed or
the virtual surrender of these dealers of the demand for the elimination of Sunday
deliveries. As there was no meeting of the minds on these issues, the Respondents
were not bound to sign the general milk industry agreement negotiated in 1961.
CONCLUSIONS OF LAW
1. The Respondents, Piping Rock Farms, Inc, and Gilmartin Farms, Inc., are en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act
2. The Unions, Milk Drivers and Dairy Employees Local 584, Local 602, and
Local 607, all affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, are labor organizations within the meaning
of Section 2(5) of the Act.
3. By declining to sign and execute the settlement agreement or the milk industry
collective-bargaining agreement negotiated by the N.Y. Labor Committee in 1961,
the Respondents did not violate Section 8(a) (1) and (5) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the complaint against each of
the Respondents be dismissed.
27 Compare Indiana Limestone Company, Inc, 136 NLRB 697; and Race Lakr Creamery
Company, 131 NLRB 1270