Meat and Highway Drivers, Etc., Local No. 710

National Labor Relations Board - Board Decisions

Aug 6, 1963

143 N.L.R.B. 1221 (N.L.R.B. 1963)

MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1221
Meat and Highway Drivers, Dockmen , Helpers and Miscellane-
ous Truck Terminal Employees , Local Union No. 710, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Respondent and Wilson & Co.,
Inc.; Armour and Company ; Swift & Company, Meat Packing
Plant ; Swift & Company , Sales Units
Meat and Highway Drivers, Dockmen , Helpers and Miscellane-
ous Truck Terminal Employees , Local Union No. 710, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America and Frozen Food Express;
Belford Trucking Company, Inc.; Refrigerated Transport Co.,
Inc.; Trans-Cold Express , Inc.; Watkins Motor Lines, Inc.;
Zero Refrigerated Lines. Cases Nos. 13-CC-260-3,13-CC-260-4,
13-CC-260-5, 13-CC-260-6, 13-CC-265, and 13-CE-6. August 6.
1963
DECISION AND ORDER
On January 25, 1962, Trial Examiner John H. Dorsey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent Union filed exceptions
and briefs in support of the exceptions. Swift & Company in behalf
of its Packing Plant and the Sales Units, Armour and Company and
the Charging Parties in Cases Nos. 13-CC-265 and 13-CE-6 filed
limited exceptions with briefs in support thereof, as well as in support
of the balance of the Intermediate Report. The General Counsel filed
a brief in support of the Intermediate Report.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings pare hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as amplified in this Decision and Order.
FACTS
For many years, Wilson, Armour, and Swift as well as other pack-
ing companies in Chicago operated under a standard collective-
bargaining agreement with Local Union No. 710 of Meat and High-
way Drivers relating to the terms and conditions of employment of
their truckdrivers engaged in the hauling of meat and meat products
I The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, exceptions, and briefs adequately present the positions of the parties.
143 NLRB No. 117.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the Chicago area. The last Packing House Agreement with
Local 710 was for a term from May 1, 1958, to April 30, 1961. This
agreement did not contain any restrictions on the packers' choice of
over-the-road truckers or on the method of delivery of meat and meat
products into the Chicago area, and for a number of years the packers
used for this purpose the services of Frozen Food Express and five
other interstate motor carriers. As to deliveries within the Chicago
area, article XII(1) of the said agreement required that such de-
liveries were to be made by the company in their own equipment, "ex-
cept when there is a lack of equipment at individual plants or branches,
and then all effort will be made to contract a cartage company who
employs members of Local No. 710." [Emphasis supplied.]
In the spring of 1961 the Union and the packers began negotiations
for a new contract. Local 710 presented to each of the packers a
document entitled "Proposed Amendments to the Packing House
Agreement." In addition to the economic demands, Local 710 sought
to incorporate certain proposals relating to deliveries into the Chi-
cago area of meat products which originated out of State, and to
local deliveries and certain other proposals relating to subcontracting.
By new article XXXIII Z it sought to amend article XII (1) relat-
ing to deliveries by eliminating the words "all effort will be made to
contract" and adding after "Local 710" the words "will be used."
Thus, preference contained in article XII (1) regarding the use of
union cartage equipment was to become especially mandatory. At
some point in the bargaining negotiations Local 710 submitted to the
packers a document entitled "Addendum to Agreement," hereinafter
referred to as the First Addendum, which reads as follows :
It is mutually agreed between the employer signators to this
agreement and Local Union 710 that all meat sand meat products
which originate with the employer for truck shipment into and
out of the Chicago City limits will be done by Certificated Carrier
signators to the Central States or other Over-the-Road Teamster
Motor Freight Agreement.
It is also agreed that all local overflow cartage shipments of
meat and meat products originating with the employer in Chicago
will be done by cartage companies which are signators to this
agreement.
Company owned or Company leased equipment is exempt from
this addendum, except Company over-the-road drivers will not
be permitted to make retail store door delivery within the Chicago
City limits. Leased equipment leased directly to the Company
will be considered as Company owned equipment.
2 The proposed article XXXIII Is set out in full in the Intermediate Report.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1223
Throughout the negotiations which commenced with the meeting on
April 21 and concluded with the strike on June 1, Secretary-Treasurer
O'Brien of Local 710, took the position that the restrictive provisions
were necessary because since 1955 the major packers had been moving
their packing plants out of Chicago into other cities s and had been
utilizing over-the-road drivers to ship their meat and meat products
into the Chicago area directly to the customers. Consequently, as the
need for local pickups and deliveries diminished, the number of truck-
drivers employed by the three major packers also diminished. During
the 1958-61 contract term the number of truckdrivers employed by the
major packers dropped from 333 to 78. Thus, O'Brien testified:
We attempted to draft some language into the contract that
would try and recover the jobs lost by the new policy of the
larger packers of having their deliveries come in from out of
state into our area by a road-driver that not only did the local
driver's work, but absorbed the city jobs that at one time belonged
to members of our organization, employees living here in the city
of Chicago.
It was for this reason, O'Brien explained to the packers, that "they
specifically had to have some language in the contract which protected
the Union in terms of deliveries and pickups in the Chicago area, and
he felt that this would be a real problem." This effort to secure some
protective langauge in the contract was Local 710's major aim. The
vice president of Local 710, Healy, stated to the packers that if there
were no agreement on this point, Local 710 would "strike the industry
in Chicago." Despite the threat, the major packers refused to agree
to the First Addendum contending that it was prohibited under Sec-
tion 8 (e) of the Act.
On June 1, 1961, Local 710 struck the major packers as well as all
of the other packinghouses in Chicago that refused to sign an agree-
ment including the First Addendum, and picketed their premises.
Between June 1 and June 5, Local 710 succeeded in obtaining indi-
vidual agreements which incorporated the First Addendum with 17
packinghouses. Wilson, Armour, and Swift did not agree.
On June 5 a petition for injunctive relief under Section 10(1) was
filed with the district court; whereupon the court issued a show cause
order returnable the following day. On the same day, June 5, Local
710 withdrew the First Addendum and presented to Wilson, Armour,
and Swift the New Addendum. The strike continued. The New
Addendum reads as follows :
3 The decision of the major packers to decentralize their operations was in no way re-
lated to their collective-bargaining relations with Local 710 or any other union. The
decision was impelled by major changes in the raising and supply of livestock, the shift
from rail to truck transportation, changes in marketing, and major population shifts
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is agreed by and between the Employer and the Union that
the following addendum shall become a part of the collective
bargaining agreement entered into between the Employer and the
Union.
The Employer agrees that all meat and meat products which
originate with or are processed or sold by the Employer and are
destined to be sold or consigned to customers or consignees located
within the city limits of Chicago shall be delivered to such cus-
tomers or consignees from the Chicago city dock or other Chicago
distribution or terminal facility of the Employer by employees
covered by this agreement. It is specifically understood that all
deliveries to customers or consignees of the Employer within
the Chicago city limits shall be made only by employees covered
by this agreement.
In the event that the Employer does not have sufficient equip-
ment at any given time to deliver his then current sales or consign-
ments within the Chicago city limits, it may contract with any
cartage company whose truckdrivers enjoy the same or greater
wages and other benefits as provided in this agreement for the
making of such deliveries.
This addendum shall not in any way be construed to diminish
the description of the work covered by this agreement as set forth
in any provision of this agreement.
On June 6, in the midst of the injunctive proceeding, Local 710
agreed with Wilson, Armour, and Swift to enter into a, new packing-
house agreement carrying article XII(1) unchanged,4 incorporating
the New Addendum as an appendix with the stipulation in the strike
settlement agreement that the bargaining with respect to the New Ad-
dendum and the strike to secure its adoption would be deferred until
its validity was determined by the Board and the court of last resort.
The strike was settled on June 6. On that day, by mutual agreement
with all other packing companies, Local 710 also canceled all agree-
ments entered between June 1 and 5 containing the First Addendum.
On June 6, at the same time and in addition to the agreement reached
with Wilson. Armour, and Swift, Local 710 reached an agreement with
all other packinghouses, the terms of which contain the same provision
for strike settlement and the New Addendum as was concluded with
the major packers. The strike terminated on June 6, 1961.
The complaints and answers in this proceeding raise the following
issues: Whether the provisions contained in the First Addendum, the
New Addendum, and article XII (1) of the agreement now in effect are
agreements within the meaning of Section 8(e) of the Act; and
whether by striking the packing industry to secure the adoption of the
4 The new packinghouse agreement with Swift & Company, Packing Plant and Sales
Units does not contain article %E(1).
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1225
Addenda and for other objects, Local 710 violated Section 8 (b) (4) (i),
(ii) (A) and (B) of the Act.
The First Addendum: The Trial Examiner found that the First Ad-
dendum is an agreement prohibited by Section 8(e) of the Act which
makes it an unfair labor practice "for any labor organization and
any employer to enter into any contract or agreement, express or im-
plied, whereby such employer agrees . . . to cease doing business with
any other employer." The Respondent excepts. The First Adden-
dum contains two provisions the legality of which is in issue. The
first provision relates to the manner of deliveries into the Chicago
area of meat and meat products, originating with the packers out of
State. The second provision relates to the subcontracting of the over-
flow local cartage operations in the Chicago area. They will be con-
sidered seriatim.
The first provision of the addendum requires that
All meat and meat products which originate with the employer
for truck shipment into and out of Chicago city limits will be
done by Certificated Carrier signators to the Central States or
other Over-the-Road Teamster Motor Freight Agreement.
As Frozen Food Express and the other interstate carriers, Charging
Parties herein, who have been making such deliveries for the packers,
were not, with the exception of Belford Trucking Company, Inc., sig-
nators to any Teamsters over-the-road agreement, the packers under
this clause would be forced to cease doing business with Frozen Food
Express and the other interstate carriers. Indeed, immediately upon
the signing of its contract containing this clause Agar Packing Com-
pany advised Watkins Motor Lines, Inc., which was not a party to any
Teamsters over-the-road agreement, that it could no longer use
Watkins' services. And although Belford was party to a Teamsters
over-the-road agreement, the packers, in order to use their services,
would have to drastically change their mode of operations. Instead
of having deliveries by interstate carriers made directly to their cus-
tomers and consignees in the Chicago area, the packers would have to
terminate such deliveries at the Chicago city dock or at their own
terminal facility, and from there make delivery to the customer's place
of business with the packers' own local drivers, or with drivers em-
ployed by other signers of one of the Teamsters over-the-road agree-
ments. This change in the method of deliveries would result in a par-
tial cessation of business relations with Frozen Food Express and the
other interstate carriers. In the Gallagher case 5 the Board found a
substantially similar provision to be an implied agreement proscribed
by Section 8(e) of the Act. There the Board said:
sHighway Truck Drivers and Helpers Local 107, International Brotherhood of Team-
sters, etc (E A Gallagher & Sons), 131 NLRB 925, enfd . 302 F. 2d 897 (C A.D.C.). See
also cases cited in footnote 6.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . under the terms of this contract, nonunion operators utilized
by Gallagher, could not deliver goods to consignees in Phila-
delphia area, but would have to bring their trucks directly to
Gallagher's terminal. In order to effectuate local delivery, the
steel would then either have to be transferred to other trucks
manned by members of the Respondent, or the independent opera-
tors would have to hire union members to drive their trucks. In
either event the contract would require a partial cessation of
business between the independent owner- operators . . . and
Gallagher.
The subcontracting clause of the First Addendum reads as follows :
It is also agreed that all local overflow cartage shipments of meat
and meat products originating with the employer in Chicago will
be done by cartage companies which are signators to this
agreement.
This clause permits subcontracting of "all local overflow cartage" in
the Chicago area, but requires that it "be done by cartage companies
which are signators to this agreement." The clause, however, pre-
cludes the packers from subcontracting the local overflow cartage to
trucking companies which are not parties to the agreement with Local
710. The Respondent contends that the clause is not a "hot cargo"
agreement within the meaning of Section 8 (e) because it purpose is
to preserve work for the employees in the bargaining unit by remov-
ing the incentive for subcontracting to contractors who, because of
their lower wages and labor standards, could perform such work
cheaper. We find no merit in this argument. On its face, the provi-
sion shows that it is intended to accomplish more than merely re-
stricting subcontracting for the purpose of the preservation of jobs
and job rights of the unit employees. It allows subcontracting but
limits the trucking companies with whom the employer can do busi-
ness to those under contract with the Union.
We find, as did the Trial Examiner, that both of the above provi-
sions of the First Addendum contravene Section 8 (e).1
Subcontracting under article XII (1) : Contracts now in force be-
tween the packers (except for Swift & Company) and Local 710 con-
tain article XII(1) which reads as follows:
Livestock, meat and meat products for delivery by truck to a
distance not exceeding 50 miles from the Chicago Stock Yards,
9 District No 9, International Association of Machinists, AFL-CIO (Greater St Louis
Automotive Trimmers, etc.), 134 NLRB 1354, enfd. 315 F. 2d 33 (CAD C.) ; Retail Clerks
Union, Local 770, et al. (The Frsto Company), 138 NLRB 244, where the Board found
that by enforcing and giving effect to agreements whereby employers agreed to subcontract
work only to employers under contract with contracting unions the parties violated Sec-
tion 8(e). Such agreement goes beyond protecting work of employees in the unit, and, at
least by implication, is an agreement not to do business with employers who do not so
qualify and are invalid as within the meaning of Section 8(e).
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1227
whether to final destination or point of transfer, shall be delivered
by the company in their own equipment except when there is a
lack of equipment at individual plants or branches, and then all
effort will be made to contract a cartage company who employs
members of Local No. 710. [Emphasis supplied.]
This provision requires that the deliveries in the Chicago area be
made by the employer in its own equipment and that in the event of
a lack of equipment, "all effort be made to contract a cartage company
who employs members of Local 710." Implementation of this clause
would require a packing company that uses independent cartage com-
panies to cease dealing with independents until it had attempted to
find in the area a cartage company that employs members of Local
710, and, in the event, that such a company is available, not to use
independents at all. The practical effect would be virtually the same
as if the clause had expressly prohibited subcontracting to any non-
union employer. Accordingly, we find that article XII (1) is an agree-
ment prohibited by Section 8 (e).1
The New Addendum: The first part of the New Addendum pro-
vides that :
... all meat and meat products which originate with or are
processed or sold by the employer and are destined to be sold or
consigned to customers or consignees located within the city limits
of Chicago shall be delivered to such customers or consignees from
the Chicago city dock or other Chicago distribution or terminal
facility of the employer within the Chicago city limits by em-
ployees covered by this agreement.
The Respondent contends that this provision is not a "hot cargo"
agreement proscribed by Section 8(e), but is a "conventional work
protection" or "work assignment" clause, which defines the work that
will be exclusively performed by the employees covered by the agree-
ment, and that an attempt to secure such work by contractual pre-
emption is a protected primary activity. The Respondent further
contends that the purpose of the revised addendum is to preserve
employment opportunities for the local drivers employed by the pack-
ers in Chicago, and to recover jobs lost in consequence of the larger
' Highway Truck Drivers, etc., Local 107 (E. A. Gallagher if Sons ), supra, where prior
to leasing equipment with a driver the employer was required to "give preference" to
employers having a contract with the union District No. 9, International Association of
Machinists , AFL-CIO ( Greater St . Louis Automotive Trimmers ), supra, the clause re-
quired that "preference must be given to such shop or subcontractors approved or having
contracts with [the Union ]." On appeal from the Board 's decision the union argued that
the clause was designed to limit the work to employers maintaining labor standards com-
parable with those required by the union . The Court of Appeals for the District of
Columbia rejected the argument stating that the "bare words " of the clause do not lend
themselves to such an interpretation . Rather, they suggest a "concurrence" between the
union and the employer "to boycott another employer for reasons not strictly germane to
the economic integrity of the principal unit work."
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
packers' policy of relocating their packing facilities outside the Chi-
cago area and having their deliveries come in directly to customers
in the Chicago area by over-the-road drivers working for the inter-
state motor carriers. We find no merit in this argument.
Although the revised addendum no longer requires the deliveries of
meat products originating with the Employer out of State into the
Chicago area to be made only by carriers who are signators to a
Teamsters over-the-road agreement, its effect and inevitable conse-
quences clearly contravene the purpose of Section 8(e) of the Act.
As did the First Addendum, it requires that all shipments of out-of-
State meat products into the Chicago area terminate at the Chicago
city dock or the packer's terminal facility. From there the delivery
of such products to consignees and customers in the Chicago area
would have to be made by the packer's own drivers represented by
Local 710. The revised addendum, therefore, does not cure the major
defect of the First Addendum pursuant to which the packer would
have been forced either to completely stop doing business with Frozen
Food Express and the other interstate carriers, or to change the man-
ner of its operations by curtailing the scope of such business with
the interstate carriers by withdrawing from them the intracity portion
of the deliveries directly to customers and consignees in the Chicago
area. We find that this was one of the Union's objects in attempting
to force the packers to agree to the revised addendum.
It is also clear that the work which the Union sought to secure for
the employees in the bargaining unit was never customarily performed
by such employees. While local deliveries of meat products originat-
ing in the Chicago area to customers in the area have been made by
the employer's drivers represented by Local 710, the deliveries of meat
products originating with the employer out of State to its consignees
in the Chicago area always have been performed by the over-the-road
drivers working for Frozen Food Express and the other interstate car-
riers as a part of a single and continuous operation from points out
of State to consignees in the Chicago area without any stopover at the
Chicago city dock or the packer's terminal facility. Nor is there
anything in the work assignment clause of the 1958-61 Packing House
Agreement to suggest that local deliveries of the employer's meat
products originating out of State are covered by that clause.$ As
revised by the New Addendum, the assignment clause, however, would
cover all local deliveries of the employer's meat products in the Chi-
8 Article XII(1) of the 1958-61 Packing House Agreement with Local 710, which has
been included in the packing agreements in the Chicago area for about 20 years, defines
the work of the employees in the bargaining unit as deliveries of "livestock , meat and
meat products by truck to a distance not exceeding 50 miles from the Chicago Stock Yards,
whether to final destination or point of transfer " Under the revised addendum, on the
other hand, "all deliveries to customers and consignees of the Employer within the
Chicago area shall be made only by employees covered by this agreement " [Emphasis
supplied 7
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1229
cago area, that is those originating in the Chicago area, as well as
those originating out of State.
As some of the packers have arrangements with Frozen Food Ex-
press and the other interstate carriers whereby the carriers are guar-
anteed so much tonnage a year, the acceptance of the Union's revised
"work assignment" clause could result in a complete, or at least partial,
disruption of the packers' business relations and/or loss of employ-
ment opportunities for the over-the-road drivers working for the in-
terstate carriers. These relations date back to the year 1955 when the
major packers began relocating their packing facilities outside the
Chicago area. By the time the negotiations for a new contract began
in April 1961 these relations had been firmly established. Ninety
percent of Armour's, all of Wilson's, and a substantial portion of
Swift's deliveries into the Chicago area were being made by self-
employed truckers working for Frozen Food Express and the other
interstate carriers. As far as the record shows, the Union interposed
no objection to the decision of the major packers to initiate the reloca-
tion of their packing facilities. The decision was impelled by major
changes in the raising and supply of livestock, the shift from rail
to truck transportation, changes in marketing, and major population
shifts. Nor did the Union raise any objection to the packers continu-
ing to deliver their meat products originating out of State directly to
consignees in the Chicago area by interstate carriers. While article
XII (1) in the Packing House Agreement at all times required that
local deliveries of meat products originating in the Chicago Stock-
yards be made by the packer's drivers represented by Local 710, the
agreement contained no restriction upon the manner in which deliv-
eries of the employer's meat products originating out of State be made
to consignees in the Chicago area.
We do not agree with the Respondent's contention that a union's
efforts to secure by a contractual preemption work for the employees
in the bargaining unit is necessarily protected primary activity. Nor
can we agree with our colleagues that the contract clause itself would
only incidentally affect other parties. In the instant case it is ap-
parent that the Union's claim to the disputed work is based upon its
assertion of geographic jurisdiction within the Chicago area. As in-
dicated above, however, delivery of meat products originating outside
of this area has never been work covered by the Union's contract.
Even if this work was performed by employees of the packers, rather
than employees of other interstate carriers, such employees need not
necessarily have been included in the unit represented by the Union.
Under these circumstances we cannot agree with our dissenting col-
leagues that the assignment of this work to members of the Union's
contractual unit "is a mandatory subject of collective bargaining."
While an employer is required to bargain about the terms and condi-
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of employment of a unit of employees, and this requirement may
extend to work subcontracted outside of the unit, a different issue is
presented when an employer relocates part of his business to another
location and subcontracts work from that location. The new location
may well entail a new and different unit. Reorganization of the
Employer's business may mean a loss of jobs to employees in the pre-
existing unit, but this loss may not be compensated by infringement
upon the rights of other employees in other units of the same or differ-
ent employers. We do not purport to decide whether the interest of
the packers "outweighs" the interest of the Union in this case. It is
sufficient that the work sought by the Union in the first part of the
New Addendum was not necessarily work within the scope of the
existing Chicago unit.
As we have found one of the objects of the "work assignment" clause
of the revised addendum is to force or require the packers to assign
to the employees in the bargaining unit work which they had never
customarily performed before; and as compliance with the clause
would necessarily result in the disruption of well-established business
relations between the packers and the interstate carriers, as well as
the loss of employment for the over-the-road drivers of the interstate
carriers, we find that the first clause of the revised addendum is an
agreement violative of Section 8 (e) of the Act.9
Subcontracting clause of the New Addendum provides that in the
event that the employer does not have sufficient equipment,
it may contract with any cartage company whose truckdrivers
enjoy the same or greater wages and other benefits as provided in
this agreement for the making of such deliveries.
Unlike the subcontracting clause of the First Addendum and that in
article XII(1), it does not limit subcontracting to cartage companies
under contract with Local 710. It permits subcontracting to any com-
pany "whose truckdrivers enjoy the same or better wages and bene-
fits" as set forth in the contract.
The Respondent contends that the clause does not sanction a sec-
ondary boycott against nonunion employers, but that it was designed
to protect work for the employees in the bargaining unit by removing
the economic incentive for subcontracting work to cartage companies
who, because of the lower wages and labor standards, could perform
the work cheaper.
We see no merit in this argument. The main thrust of the clause
is regulation and establishment of approved conditions for employees
of another employer rather than with the definition and preservation,
e Highway Truck Drivers etc., Local 107 (E. A. Gallagher & Sons), supra; Local 282,
International Brotherhood of Teamsters, etc. (Preeon Trucking Corp., et al.), 139 NLRB
1077; International Longshoremen's Association et at. (The Board of Harbour Commis-
sioners), 137 NLRB 1178.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1231
for the exclusive performance of employees in the bargaining unit,
of work that traditionally has been performed in that unit.10 The
only "dispute" between the Union and the packers is that the packers
are subcontracting their overflow cartage to local cartage companies
whom the Union does not approve, and it is well settled that when
a union's sole dispute is not with the contracting employer subject
to its pressure, but with an employer with whom he is doing business,
the conduct is secondary and within the proscription of the secondary
boycott provision of the Act."
The record, moreover, is clear that in insisting upon acceptance of
the revised subcontracting clause, Local 710 pursued proscribed ob-
jectives. At the bargaining session with the packers held on April
21, Secretary-Treasurer O'Brien of Local 710, stated that Local 710
"specifically had to have some language in the contract which pro-
tected the Union in terms of deliveries and pickups in the Chicago
area." [Emphasis supplied.] Thus, it was the employment oppor-
tunities of members of Local 710, rather than the preservation of work
for the employees in the bargaining unit that Local 710 sought to
protect by imposing this restriction on subcontracting. The record
further shows that the subcontracting clause of the First Addendum
which limited subcontracting to cartage companies under contract
with Local 710, had been withdrawn and replaced by the revised sub-
contracting clause of the New Addendum on June 5, but only after
the unfair labor practice charges had been filed by the packers and
in response to the pressure of the injunction proceeding. Local 710,
thus obviously sought to make less objectionable, the clearly unlaw-
ful language of the original subcontracting clause while still pursu-
ing the same objective.12 Indeed, on June 6, or the next day, Local
710 agreed with the packers, except Swift & Company, to enter into
the Packing House Agreement containing article XII (1), carried over
from the previous agreement, which limited subcontracting to cartage
companies employing members of Local 710.
For the reasons set forth above, we reject the Respondent's conten-
tion that protection of work for employees in the bargaining unit
was the primary objective of the revised subcontracting clause. We
find that the Respondent, in seeking acceptance of that clause, had
an objective of forcing the packers to refrain from subcontracting
10 Cf Ohio Valley Carpenters District Council, etc . ( Cardinal Industries , Inc.), 136 NLRB
977, where the Board found a clause violative of Section 8(e) on the ground that it regu-
lated terms and conditions of employment of employees outside the bargaining unit.
11 N L.R B. v. Denver Building and Construction Trades Council , et at (Gould of
Preisner ), 341 U.S. 675 ; Local 1976 United Brotherhood of Carpenters etc. (Sand Door of
Plywood Co .) v. N.L R.B., 357 U.S. 93.
11 See Sheet Metal Workers International Association, AFL-CIO, et al. (Burt Mfg Co ),
293 F. 2d 141 (C.A.D.C. ), enfg. 127 NLRB 1629, where the court held that in determining
an object of the second clause the Board can rely upon the events in connection with first
proposal to "shed light on the true character of the objective" of the second clause.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the overflow cartage operations to cartage companies who do not
qualify under the clause in order to protect working conditions of
Respondent's members in the Chicago area, rather than the working
conditions of employees in the Packers' unit, thereby bringing the
clause within the purview of Section 8(e).13 In so finding, we also
disagree with the dissenting position of Member Brown that the
Union's objective was merely to protect "the welfare of employees in
the packer bargaining unit it represents." We do so, not only for the
reasons set forth above, but because the clause, by its terms and as
interpreted by the Union, limits the Employers' contractual authority
with respect to nonunit work as well as unit work. It applies to local
delivery of products from all locations of the packers' plants, whether
in or out of the Chicago area. As indicated above, delivery of prod-
ucts originating in plants outside the Chicago area can hardly be
considered within the scope of the Union's established unit.
We have found that the New Addendum, like the First Addendum
and article XII (1) of the Packing House Agreement now in force,
would require Wilson, Armour, Swift, and the other packers to cease
doing business with the Frozen Food Express and, other interstate
carriers insofar as such carriers make direct deliveries to their cus-
tomers or consignees in the Chicago area and make pickups from such
customers to points outside the Chicago area. We have also found that
both addenda would require the packers to cease and refrain from do-
ing business with the cartage companies in the Chicago area whose em-
ployees are not members of Local 710 or whose labor policies are not
approved by Local 710. As Section 8 (e) prohibits agreements that
directly or indirectly require an employer to cease or desist from doing
business with other persons, we find, as did the Trial Examiner, that
both addenda and article XII(1) constitute agreements proscribed by
Section 8 (e) of the Act.14
Since we have found that the First Addendum is an agreement
proscribed by Section 8(e), which makes it an unfair labor practice
to "enter into any contract express or implied, whereby the employer
agrees to cease doing business with another person," we find, as did
the Trial Examiner, that by entering into contracts between June 1
and 5, 1961, with the 17 packers, Local 710 violated Section 8(e) of
18 See Truck Drivers Union Local No . 413, International Brotherhood of Teamsters, etc.
(The Patton Warehouse, Inc.), 140 NLRB 1474 , where the clause required the employer
"to refrain from using the services of any person who does not observe the wages . . . es-
tablished by labor unions having jurisdiction over the type of services performed "
The Board found the clause unlawful under Section 8(e) on the ground that the clause
limited the employer in the choice of the persons with whom he should be permitted to do
business rather than to require him "to refrain from contracting out work previously per-
formed in the bargaining unit."
14 Highway Truck Drivers, etc ., Local 107 (E. A. Gallagher & Sons ), supra; Amalgamated
Lithographers of America ( Ind.) and Local 78 (Miami Post Company ), 130 NLRB 968,
enfd. 301 F . 2d 20 ( C.A. 5) ; District No 9, International Association of Machinists,
AFL-CIO ( Greater St. Louis Automotive Trimmers, etc.), supra ; Truck Drivers Union,
Local No. 413 ( The Patton Warehouse, Inc.), supra.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1233
the Act." Although all the contracts entered into between June 1
and 5 were canceled by the parties on June 6, the violation of the Act
has not been thereby rendered moot.
Having found that both addenda are proscribed by Section S(e)
of the Act in that each addendum would require the employers to
cease doing business with other persons, we find, as did the Trial Ex-
aminer, that by calling the strike on June 1, 1961, to force and require
Wilson, Armour, Swift, and other packers to agree to the First Ad-
dendum, and by continuing the strike after June 5 to force or to re-
quire the above employers to agree to the New Addendum, proposed
by the Union on that date, the Respondent violated Section 8(b) (4)
(i) and (ii) (A) of the Act.1,
Since a further object of the strike necessarily was to force the
above-named employers to cease doing business with Frozen Food
Express and the other interstate motor carriers, as well as with local
cartage companies, of whom the Union did not approve, we find that
the Respondent also violated the secondary boycott provision of
paragraph (B) of Section 8 (b) (4) (i) and (ii) of the Act."
As the First Addendum requires that out-of-State shipments of
meat and meat products to customers and consignees in the Chicago
area be done by interstate carriers, who were signatory to the Central
States or other over-the-road Teamsters motor freight agreement,
Frozen Food Express and the other interstate carriers would have
to become parties to that agreement if they wished to continue to
render services for the packers. Under the over-the-road agreement
Frozen Food Express and the other carriers would also have to recog-
nize Central States Drivers Council and Local 710 as the bargaining
representative of the self-employed truckers working for them, and
the self-employed truckers would have to become members of the
Union, if they wished to work for the interstate carriers.18 Accord-
ingly, we find that the strike from June 1 until the First Addendum
15 Mary Fesfer d/b/a American Feed Company, 133 NLRB 214; District No 9, Inter-
national Association of Machinists , AFL-CIO ( Greater St Louis Automotive Trimmers),
supra.
'e Highway Truck Drivers, etc ., Local 107 ( E A. Gallagher & Sons ), supra; Los Angeles
Mailers Union (Hillbro Newspaper Printing Company ), 135 NLRB 1132, enfd . 311 F. 2d
121 (C.A.D.C.) ; Local 282, International Brotherhood of Teamsters ( Precon Trucking
Corp., et al ), 139 NLRB 1077.
17 Highway Truck Drivers, etc., Local 107 ( E. A. Gallagher & Sons ), supra; Los Angeles
Mailers Union ( Hillbro Newspaper Printing Company ), supra; Local 282, International
Brotherhood of Teamsters (Precon Trucking Corp., et al.), supra; Amalgamated Lithog-
raphers of America (The Graphic Arts Employers Association), 130 NLRB 985, enfd. 309
F. 2d 31 (C.A. 9).
'B In order to prove that one of the objects of the First Addendum was to force or re-
quire self-employed truckers to join the Union it is not necessary to show that the Union
solicited their membership or made a demand upon the packers or interstate carriers that
they join the Union . It is sufficient if it be shown that such a result would follow from
the Respondent 's conduct as a necessary and foreseeable result. United Steelworkers
Union, Local No 4203 ( Tennessee Coal & Iron ), 294 F. 2d 250 (C.A.D'C.), enfg as modi-
fied 127 NLRB 1823.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was withdrawn on June 5, was also for an object of forcing or requir-
ing self-employed truckers to join the Union in violation of Section
8 (b) (4) (i) and (ii) (A) of the Act.
THE REMEDY
Having found that the Respondent Union has engaged in unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the First Addendum, the New Addendum and
article XII (1) are agreements prohibited by Section 8 (e) of the Act,
we shall make the provisions of our cease and desist order broad
enough to enjoin the Respondent Union from entering into any agree-
ment prohibited by Section 8(e) of the Act with the employers
involved.
Because the record shows that the Respondent Union in addition
to its contracts with the three major packers (Wilson, Armour, and
Swift) also has contracts with the 17 other packers, that on June 1
the Union, in support of its demands, struck the Whole packing indus-
try in Chicago, and as the Union's past conduct indicates that unless
enjoined the commission of further unlawful acts by the Union may
be anticipated, we shall order the Respondent to cease ,end desist from
engaging in the conduct found unlawful against the named employers
as well as against "any other employer." 19
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section
2(5) of the Act.
2. Swift Plant, Swift Sales, Armour, Wilson, Frozen Food Express,
Belford Trucking Company, Inc., Refrigerated Transport Co., Inc.,
Trans-Cold Express, Inc., Watkins Motor Lines, Inc., and Zero Re-
frigerated Lines are engaged in commerce Within the meaning of
Section 2 (6) and (7) of the Act.
3. The First Addendum and the New Addendum proposed by the
Union on June 5 are agreements which are prohibited by Section
8(e) of the Act.
4. The Union by striking on June 1 with an object of forcing or
requiring Swift Plant, Swift Sales, Armour, Wilson, and various
other packers to agree to the First Addendum, and with a further
object of forcing or requiring the self-employed operators of trucks
delivering for Frozen Food Express, Belford Trucking Company,
Inc., Refrigerated Transport Co., Inc., Trans-Cold Express, Inc.,
10 Local i94 International Brotherhood of Teamsters , etc. (Van Transport Lines), 131
NLRB 242, enfd. 298 F. 2d 105 (C.A. 2).
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1235
Watkins Motor Lines, Inc., and Zero Refrigerated Lines to join the
Union, violated Section 8(b) (4) (i), (ii) (A) and (B) of the Act.
5. The Union by entering into contracts with the 17 packers, be-
tween June 1 and June 5, which included the First Addendum, vio-
lated Section 8 (e) of the Act.
6. The Union, by continuing the strike after June 5 with an object
of forcing or requiring Swift Plant, Swift Sales, Armour, and Wilson
to agree to include in a contract the addendum proposed by the Union
on that date, violated Section 8(b) (4) (i), (ii) (A) and (B) of the
Act.
7. The Union, by entering into agreements and contracts on and
after June 6 with Swift Plant, Swift Sales, Armour, and Wilson,
and other packers, which incorporated a conditional agreement to
bargain about the New Addendum proposed by the Union on June 5,
and except for the agreements with Swift Plant and Swift Sales,
included article XII(1), violated Section 8(e) of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Meat and High-
way Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal
Employees, Local Union No. 710, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, its
officers, representatives, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Taking any action an object of which is to force or require
Wilson & Co., Inc., Armour and Company, Swift & Company, Meat
Packing Plant, Swift & Co., Sales Units, and other employers to
agree to the addendum, incorporated as an exhibit in their agreements
and contracts with the Union entered into on and after June 6, 1961,
and providing as follows :
The Employer agrees that all meat and meat products which
originate with or are processed or sold by the Employer and are
destined to be sold or consigned to customers or consignees lo-
cated within the city limits of Chicago shall be delivered to such
customers or consignees from the Chicago city dock or other
Chicago distribution or terminal facility of the Employer by
employees covered by the agreement. It is specifically under-
stood that all deliveries to customers or consignees of the Em-
ployer within the Chicago city limits shall be made only by
employees covered by this agreement.
In the event that the Employer does not have sufficient equip-
ment at any given time to deliver his then current sales or con-
717-672-64-v of 143-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signments within the Chicago city limits, it may contract with
any cartage company whose truckdrivers enjoy the same or
greater wages and other benefits as provided in this agreement
for the making of such deliveries.
This addendum shall not in any way be construed to diminish
the description of the work covered by this agreement as set forth
in any provision of this agreement.
(b) Maintaining, enforcing, or giving effect to the agreements and
contracts entered into on and after June 6, 1961, by and between the
Union and Wilson & Co., Inc., Armour and Company, and other em-
ployers, insofar as said agreements and contracts provide :
Article XII. (1) Livestock, meat and meat products for de-
livery by truck to a distance not exceeding 50 miles from the
Chicago Stock Yards, whether to final destination or point of
transfer, shall be delivered by the company in their own equip-
ment, except when there is a lack of equipment at individual
plants or branches, and then all effort will be made to contract a
cartage company who employs members of Local No. 710. Em-
ployer agrees to do all possible to use own equipment at all times.
(c) Entering into, actively maintaining, giving effect to, or enforc-
ing any other contract or agreement, express or implied, whereby the
employers named in (a), above, or any other employers, cease or re-
frain, or agree to cease or refrain, from handling, using, selling, trans-
porting, or otherwise dealing in any of the products of any other
employer, or from doing business with any other person.
(d) Engaging in, or inducing or encouraging individuals employed
by the employers named in (a), above, or any other employers, to
engage in a strike, or threatening, coercing, or restraining the afore-
said employers by picketing or otherwise, where in either case an
object thereof is to force or require the aforesaid employers to cease
doing business with Frozen Food Express, Belford Trucking Com-
pany, Inc., Refrigerated Transport Co., Inc., Trans-Cold Express,
Inc., Watkins Motor Lines, Inc., Zero Refrigerated Lines, or with
any other similarly situated carriers.
(e) Engaging in, or inducing or encouraging individuals employed
by the employers named in (a), above, or any other employers, to
engage in a strike or threatening, coercing, or restraining the afore-
said employers by picketing or otherwise, where in either case an ob-
ject thereof is to force or require the self-employed operators of trucks
delivering for Frozen Food Express, Belford Trucking Company,
Inc., Refrigerated Transport Co., Inc., Trans-Cold Express, Inc.,
Watkins Motor Lines, Inc., Zero Refrigerated Lines, or any other
similarly situated carriers, to join Respondent Union or any other
labor organization.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1237
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Union's business offices, meet-
ing halls, and places where notices to members are customarily posted,
copies of the attached notice marked "Appendix A." 20 Copies of
said notice to be furnished by the Regional Director for the Thirteenth
Region, shall, after being duly signed by an official representative of
the Union, be posted by the Union immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter. Reason-
able steps shall be taken by the Union to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Furnish to the Regional Director for the Thirteenth Region
signed copies of the aforementioned notice for posting by Swift Plant,
Swift Sales, Armour, and Wilson; all other employers party to an
agreement with the Union which includes the provision set forth in
1(a), above; and Frozen Food Express, Belford Trucking Com-
pany, Inc., Refrigerated Transport Co., Inc., Trans-Cold Express,
Inc., Watkins Motor Lines, Inc., and Zero Refrigerated Lines, in
places where notices to employees are customarily posted. Copies of
said notice to be furnished by the Regional Director shall, after be-
ing signed by the Union, as indicated, be forthwith returned to the
Regional Director for disposition by him.
(c) Notify the Regional Director for the Thirteenth Region in
writing, within 10 days from the date of this Order, of the action taken
by the Union to comply therewith.
CHAIRMAN MCCULLOCH, dissenting in part:
My disagreement with the members of the majority stems from
their tacit assumption that the efforts of the Union to bargain with
the packers about protection of unit work necessarily violates Sec-
tion 8 (e), if a consequence of such a work-protection clause is to im-
pair in any degree the existing relationship between the packers and
their present subcontractors.
It is my position, based on the facts in this case, that the Union may
insist on bargaining with the packers with respect to contractual
provisions which are designed to retain, reclaim, or obtain work of
the type now being performed by unit members, despite the possibility
that a successful insistence in that respect might entail changes in the
present relationship between the packers and the independent haulers
who are making local deliveries as the final step in their interstate
hauling.
so In the event that this Order is enforced by a decree of a United States Court of
Appeals, the notice shall be amended by substituting for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The question whether Section 8 (e) must be interpreted as barring
all agreements prohibiting the subcontracting of work has been defini-
tively answered in the negative.21 Whether a particular work-
protection clause is violative of Section 8 (e) because it may affect
present relationships between the employer and subcontractors pres-
ently doing such work, must depend, as the Board has unanimously
agreed, upon "the language used, the intent of the parties and the
scope of the [subcontracting] restriction...." Milk Drivers Local
546, supra. The matter may not be disposed of by an inflexible rule
invalidating any contract clause whose purpose is to preserve and
protect unit work merely because it incidentally affects other parties.
In this frame of reference, prior unanimous Board holdings (see
footnote 21) dictate that any proposal demonstrably directed to the
purpose or requiring the packers in this case to subcontract local
delivery work only to contractors who are under contract with Local
710, or with other affiliate or constituent units of the Teamsters goes
beyond the legitimate protection of unit work and is outside the scope
of permissible bargaining. In this category are article XII (1), arti-
cle XXXIII, and the First Addendum.
Moreover, in the circumstances of the instant case, and contrary
to the ably expressed views of my colleague, Member Brown, I agree
with the majority in finding likewise impermissible the provision of
the New Addendum limiting subcontracting of local deliveries (where
there is insufficient equipment) to companies "whose truckdrivers en-
joy the same or greater wages and other benefits as provided in this
agreement. . . ." Against the background of the provisions which
preceded this latest proposal and in the total context of Local 710's
objectives, I agree that the Union in this provision was merely resort-
ing to an alternative approach or formulation to achieve the same
goal, namely, limiting overflow work to employers having contracts
with Local 710 or coaffiliates. Furthermore, the fact is that the Union
was concerned here not with work which the employees it represented
were doing or could do, but rather with work which, by definition,
they would be unable to do and which would have to be subcontracted
out in any event. It follows that the thrust of the provision is not
primarily directed at protecting the terms and conditions of employ-
ment of the represented employees, but is directed rather toward the
objective of dictating the terms and conditions upon which other em-
ployers will be permitted to do business. The Board has already in-
21 Mzlk Drivers and Dairy Employees Union , etc, Local No. 546, International Brother-
hood of Teamsters, etc. (Minnesota Milk Company), 133 NLRB 1314, enfd 314 F 2d 761
(C.A. 8) ; District No 9, International Association of Machinists ( Greater St Louis Auto-
motive Trimmers , etc), 134 NLRB 1354 , enfd. 315 F 2d 53 (CA.D.C) ; Ohio Valley
Carpenters District Council ( Cardinal Indusbrzes, Inc), 136 NLRB 977, 985-986; Local
282, International Brotherhood or Teamsters , etc. (Precon Trucking Corp., et at ), 139
NLRB 1077 (Intermediate Report). Cox, Law and the National Labor Policy, 34
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1239
dicated its view that such dictation is proscribed. The Patton Ware-
house, Inc., 140 NLRB 1474.
This is not to say that there may not be other circumstances in which
contract provisions relating to wages or working conditions under
which subcontracting may be allowed are so clearly and directly re-
lated to the protection of the unit employees' work that they are per-
missible under the statute, as being "strictly germane to the economic
integrity of the principal work unit." 22 In my view, however, such
circumstances have not been shown to be present here.
To the extent noted above, I agree with my colleagues of the ma-
jority. I would find, however, in disagreement with them, that the
first part of the New Addendum is legal. It provides that deliveries
of meat and meat products that originate with or are processed or sold
by a packer for consignment or sale within Chicago must be delivered
from a facility in Chicago by employees covered by the agreement.
Its effect is to prohibit all subcontracting of delivery work to con-
signees within the city limits regardless of the point of origin of the
shipment. Because the effectuation of this provision would require
the employers to break up their deliveries to consignees in Chicago
into an interstate portion (from the out-of-State plant to the city
dock or terminal), and an intracity portion (from that point to the
local consignee), the majority would sweep out the entire provision
as an attempt to force the employers to cease doing business with the
interstate carriers in the manner in which they are presently handling
their deliveries.
I do not agree. I would, instead, find it to be a provision the
primary objective of which was the protection of legitimate interests
of employees within the contract unit.
It is worthwhile at this point to sketch in briefly the factual back-
ground which in the 1961 negotiations occasioned the Union's insist-
ence that the employment losses it had already suffered be reversed.
The facts are not substantially disputed, and whatever disagreement
there may be as to when such losses began, is not important. It is,
moreover, necessary to make clear what work the Union considered
as rightfully belonging to the employees it represented, in view of
the statement in the majority opinion that local deliveries of ship-
ments originating out of State had not customarily been performed
by the packers' local drivers and had not been provided for in the
work assignment clause of the 1958-61 agreement.
For at least 20 years, meatpackers in Chicago have agreed with
Local 710 that deliveries of meat products by truck within the Chi-
cago area would be made directly by the packers, using their own
re District 9, International Association of Machinists , AFL-CIO v. N.L R B., supra. See
also Retail Clerks Union Local 770, etc . (Food Employer 's Council ) v. N.L.R B , 296 F. 2d
368, 373 (C A.D.C.).
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment driven by employees represented by Local 710. During
most of this period, deliveries to customers in the Chicago area origi-
nated from the packers' plants in Chicago. Toward the end of the
last decade, extensive changes in the distribution of meat products
were effected as the major packers moved much of their slaughtering
and processing operations outside of Chicago. The relocation of
Swift, Armour, and Wilson, the three major packers, caused a sharp
reduction in employment both of inside plant workers and of local
drivers. Of about 330 truckdrivers employed by Swift, Armour, and
Wilson at the beginning of the prior contract term in May 1958, only
80 were still employed 3 years later when negotiations began for a
new agreement. Drivers employed by the packers continued to make
deliveries from the remaining plant facilities in Chicago to customers
within a 50-mile radius, but deliveries to customers within the same
area were increasingly being made by over-the-road drivers whose
runs originated from the packers' facilities outside the Chicago area.
It was to the problem of recovering the jobs lost by the local drivers
in the Chicago area and retaining those still performed there that the
Union addressed itself in the 1961 negotiations.
The proposal that the Union put forward in the first part of the
New Addendum is directed toward a readjustment of its contract unit
work made necessary by the changed pattern of meat distribution to
consignees in the Chicago area.
The majority opinion states that the work assignment clause of the
1958-61 agreement did not cover local deliveries of shipments originat-
ing out of State, and that the New Addendum attempted to broadF\n
the scope, of the clause so as to cover this type of local delivery. On
that premise, the majority argues that deliveries to local consignees
as the last leg of an interstate haul have never been considered to be
work within Local 710's unit.
I find the argument untenable. Neither the former work-
assignment clause nor the New Addendum distinguishes between local
deliveries on the basis of where they may in fact have originated.
Article XII of the expired agreement assigned to employees repre-
sented by Local 710 delivery work "to a distance not exceeding 50
miles from the Chicago Stock Yards ..." The New Addendum would
assign to unit employees deliveries to "customers or consignees located
within the city limits of Chicago...." The language of neither provi-
sion supports the majority position that the Union had never pre-
viously claimed as its work those deliveries within the Chicago area
which originated outside the State. On the contrary, the Union under
the contract had at all times claimed and been assigned delivery work
to consignees within 50 miles of the Chicago Stockyards.
The majority is, of course, correct in stating that the unit members
had in fnrt never customarily performed those local deliveries which
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1241
originated outside of Chicago, but this statement is meaningless.
They had not done so because there had been no occasion for them to
do so. When the packing plants were in Chicago, Local 710's mem-
bers made all deliveries to local consignees ; when the plants in Chi-
cago were closed down and their activities transferred elsewhere, the
packers immediately turned over to independent trucking contractors
the work of delivering to consignees in the Chicago area, as part of
their interstate haul.
The majority seems to argue that Local 710 acquiesced in this new
arrangement, and cannot therefore be heard to object now. But an
appropriate time to stanch a continuing loss of unit work is when a
new contract is to be negotiated.23 It is then that the problem can
be viewed as a whole in a context of mutual give and take along with
other provisions relating to conditions of employment. Moreover,
in view of the unsettled state of the law at the time with respect to
an employer's duty to bargain over his decision to relocate a facility
for economic reasons,24 it would have taken remarkable clairvoyance
for the Union between 1958 and 1961 to claim that the employers had
violated Section 8(a) (5) in failing to discuss with it their relocation
and altered delivery plans.
Deliveries to consignees in the Chicago area, regardless of origin,
can justifiably be considered to be work of the employees within
Local 71O's unit. Even if it had never been customarily performed
by unit members when it was part of an interstate haul, it is neverthe-
less so closely allied-and is in part identical-to the local deliveries
previously recognized for almost 20 years to be unit work as to make
bargaining about it mandatory. To hold otherwise is to say that a
union may not seek to bargain with an employer either about the
quantum of work, or the qualifications of its members to perform
closely related work, whenever technological changes or mere changes
in methods of distribution are to be affected.
The Packers contend that such deliveries are now uneconomical or
inefficient because they may require transhipments at their Chicago
docks, but it is not for the Board to decide that their interest in
economy and efficiency outweighs the interest of the Union in reclaim-
ing the work previously performed by 250 truckdrivers. These are
matters to be resolved by the parties through collective bargaining.
I am not ready to deny to a bargaining representative an opportu-
nity to maximize employment for the employees in its unit even though
" "Union attitudes towards subcontracting , in general , tend to stiffen when employment
declines and when contracting out removed work that customarily `belonged ' in the bargain-
ing unit Not only are members ' jobs at stake, but concern over union jurisdiction and
the possibility that subcontracting may be used to evade or dilute the terms of the collec-
tive bargaining agreement are often present." Bulletin No. 1304, U.S. Department of
Labor, Subcontracting Clauses in Major Collective Bargaining Agreements, 1961 , page 1.
'Fcbreboard Paper Products Corporation, 130 NLRB 1558; 138 NLRB 550, enfd. 322
F. 2d 411 (C.A.DC.) ; Town & Country Manufacturing Company, Inc., 136 NLRB 1022.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it may result in changing some recent business relationships which
have brought about a diminution of unit work. Section 8 (e) in my
view was not intended to have so broad a reach.
MEMBER BROWN, dissenting in part :
I share the Chairman's views respecting the first part of the New
Addendum and therefore join him in dissent on that point. Unlike
the Chairman, however, my disagreement with my other colleagues
extends as well to the second or subcontracting portion of that adden-
dum, for I do not believe that this record establishes the invalidity
of such provision.
There being no question concerning the lawfulness of an employer's
contractual commitment not to remove, by subcontract, any work from
employees in a contract unit,25 I consider it lawful for parties to ac-
commodate employer needs for operational flexibility with the "legi-
timate attempts by the union to protect and preserve the work and
standards it has bargained for." 26 This accommodation, which my
colleagues find to be unlawful in this case, appears in the following
portion of the New Addendum :
In the event that the Employer does not have sufficient equip-
ment at any given time to deliver his then current sales or con-
signments within the Chicago city limits, it may contract with
any cartage company whose truckdrivers enjoy the same or
greater wages and other benefits as provided in this agreement
for the making of such deliveries.
In thus limiting the class of persons to whom the assigned work of
the contract unit may be subcontracted, the Union's purpose, so far
as this record reveals, is not to limit the employer in the persons with
whom he does business in order to further a dispute at another em-
ployer's establishment, or to protest objectionable conditions at an-
other employer's establishment, or to improve the conditions of the
employees of another employer. Rather, the Union's objective was to
accommodate the business needs of the employer while at the same
time protecting the welfare of employees in the packer bargaining unit
it represents.
Mindful of the Union's aforementioned purpose, the second part
of the New Addendum recognizes realistically that situations some-
times do arise when the packer may have drivers of his own available
but insufficient equipment to carry out his operations. In such situa-
tions, the addendum would permit the packer to contract with a
25
Milk Drivers' Union, Local 753 ( Pure Milk Association ), 141 NLRB 1237 ; District
No. 9, International Association of Machinists v. N L.R B. ( Greater St . Louis Automotive
Trimmers etc .), supra; and Bakery Wagon Drivers & Salesmen, Local Union No. 484 v.
N.LR.B., 321 F. 2d 353 (C.A.D.C.), enfg. 137 NLRB 987.
20 Retail Clerks Union Local 770, etc. v. N.L.R .B. (Food Employers' Council ), 296 F. 2d
368 (C.A.D.C.).
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1243
cartage company; but only when the cartage company maintains the
same or better labor standards. The addendum thus discourages the
packer's use of a cartage company as a device for undermining the
work 27 and standards which the packer had agreed to maintain for
his employees. Accordingly, the New Addendum serves both the
packer's interest in flexibility and the Union's interest in preventing
that flexibility from undercutting the job security of the packer's own
employees through subcontracting their work for performance under
substandard conditions.
Treating this matter of subcontracting clauses, the Court of Appeals
for the District of Columbia cautioned the Board in Retail Clerks
Union Local 770, etc. v. N.L.R.B. (Food Employers' Council), supra,
that the subject is not to be disposed of by "blanket pronouncements."
The court continued (id. at 373-374) :
... These clauses take many forms. Some prohibit subcontract-
ing under any circumstances; some prohibit it unless there is
sufficient work in the shop to keep shop employees busy; some
prohibit it except where the subcontractor maintains a wage scale
and working conditions commensurate with those of the employer
who is party to the collective agreement. On the face of it, these
provisions would seem to be legitimate attempts by the union to
protect and preserve the work and standards it has bargained for.
In the latter supposition, for example, the Union may be attempt-
ing to remove the economic incentive for contracting out, and
thus to preserve the work for the contracting employees. [Em-
phasis supplied.]
The Board has correspondingly recognized that each such subcon-
tracting clause must be examined in its own context, with due regard
for the intent of the parties, the scope of the restriction, and the par-
ticular language used. Milk Drivers and Dairy Employees Union,
etc., Local No. 546 (Minnesota Milk Co.), 133 NLRB 1314, 1317,
enfd. 314 F. 2d 761 (C.A. 8).
Directing attention to the agreement presented in the instant case,
it may not be gainsaid that the New Addendum does limit, to some
extent, the class of persons with whom the Employer may do business.
Read literally, Section 8(e) would appear to prohibit all agreements
placing restrictions on the subcontracting out of an employer's work;
for in a sense all such agreements do place limitations on the em-
ployer's ability to do business with others and thereby arguably fall
within the statutory proscription. However, it is equally clear that
a literal reading of 8(e) would result in expanding the scope of that
section to cover matters far removed from Congress' overriding inter-
est in banning "hot cargo" clauses. The essential distinction between
n See, in this connection, the Supreme Court' s discussion of this point in the Oliver case,
footnote 32, infra.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such clauses and those which restrict subcontracting in order to pro-
tect the employment of employees in the bargaining unit was pointed
out by one eminent authority thusly : 28
This restriction upon subcontracting seeks to protect the wages
and job opportunities of the employees covered by the contract,
by forbidding the primary employer to have work which his
employees might do, performed outside his own shop [is] some-
thing quite different in both purpose and effect from arranging
to have secondary employers boycott nonunion firms or specified
employers or groups of employers because their products or labor
policies are objectionable to the union. [Emphasis supplied.]
Given this fundamental distinction, it is further observed that
neither the debates nor other legislative history concerning the en-
actment of Section 8(e) contain any persuasive indication that the
Congress intended, to prohibit the conventional restrictions on sub-
contracting which are designed to preserve the contract work of the
employees in the bargaining unit.29
The distinction between lawful subcontracting clauses and unlaw-
ful 8(e) clauses evokes the same considerations which apply in delin-
eating lawful primary strikes from unlawful secondary boycotts under
Section 8(b) (4) (B) of the Act. With respect to the primary strike-
secondary boycott dichotomy, the Supreme Court has furnished us
guidance, namely, while incidental effects on secondary employers at-
tend practically all primary action, such side effects may not be cast
as the predicate for subverting the essential character of a primary
dispute between an employer and his employees concerning their own
terms and conditions of employment. To hold otherwise and to read
Section 8(b) (4) (B) literally "would," the Supreme Court stated,
"ban most strikes historically considered to be lawful, so-called pri-
mary activity." 30 These considerations are, in my opinion, equally
pertinent to the instant case. Since the plain object of the disputed
addendum is to accommodate employer needs and yet prevent erosion
of the employees' contract work, I am not persuaded that the incidental
effect of that addendum is sufficient to bring it within the proscrip-
tion of Section 8 (e) of the Act.31
28 Cox, Law and the National Labor Policy, 34 ( 1960 ). See, also, Aaron , The Labor-
Management Reporting and Disclosure Act of 1959, 73 Harv. L Rev. 1086, 1118-1119
(1960).
20 See , 71 Yale LT. 158, 170; 38 N.Y.U. L. Rev. 96 , 113-114 ; 45 Cornell L Q. 724,
748-750; Cox , The Law and the National Labor Policy, 35 (1960 ) ; and Powell, The Impact
of Section 8 (e) on Subcontracting Clauses in Collective Bargaining Agreements , Symposium
on Labor-Management Reporting and Disclosure Act of 1959, pp. 897-901.
as Local 761 , International Union of Electrical, Radio and Machine Workers, AFL-CIO
( General Electric Company ) v. N.L.R .B., 366 U.S. 667, 672.
31 See Aaron , The Labor-Management Reporting and Disclosure Act of 1959 , 73 Harv.
L. Rev. 1086, 1119.
Also, compare this addendum with a clause recently held unlawful in Truck Drivers
Union Local No. 413 ( The Patton Warehouse , Inc.), 140 NLRB 1474 , which clause obii-
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1245
Indeed, as noted previously, my colleagues would agree that a no-
subcontracting agreement to preserve the work of the bargaining unit
employees is lawful even though it absolutely precludes subcontracting
of the work to other employers. Reason would dictate a similar re-
sult here in view of the similar object of the clause under considera-
tion and where incidental effects are even less restrictive. 32 Accord-
ingly, I would dismiss the allegations of the complaint respecting
both parts of the New Addendum.
gated the employer ' to refrain from using the services of any person who does not observe
the wages , hours, and conditions of employment established by labor unions having juris-
diction over the type of services performed ." If, for example, a trucking company does
not service its own equipment but has such maintenance done by another employer, this
Patton clause would confine the class of qualifying maintenance employers to those who
observe the wage and other employment standards established by unions having jurisdic-
tion over maintenance work; this restriction on doing business with maintenance em-
ployers would apply even though the employees of the trucking company neither perform
nor have any interest in performing maintenance operations . The clause in Patton thus
sought much more than "to govern only the relations between the [ trucking] company
and its employees" (Minnesota Milk Company, 133 NLRB 1314 , 1316 ). The New
Addendum in the instant case is plainly distinguishable for it does not evince any purpose
which does not bear directly and intimately on preserving to the packer 's own employees
the work otherwise exclusively assigned to them in their contract.
87 Cf Local 24, Teamsters Union v. Oliver , 358 U S. 283 . In Oliver, as a result of multi-
employer and multistate collective bargaining , an agreement was reached between a Drivers
Council and motor carriers . Article XXXII of the agreement prescribed terms and condi-
tions which regulated the minimum rental and other terms of lease when a motor vehicle
is leased to a carrier by an owner who drives his vehicle in the carrier's service. In a
State antitrust action, the Union defended the article "as necessary to prevent under-
mining of 'the negotiated drivers' wage scale said to result from a practice of earners of
leasing a vehicle from an owner -driver at a rental which returned to the owner -driver
less than his actual costs of operation , so that the driver 's wage received by him, although
nominally the negotiated wage, was actually a wage reduced by the excess of his operating
expenses over the rental he received " Id. at 289. The Supreme Court sustained the
validity of the agreement , observing that the agreement 's objective was (1 ) to maintain
the "basic wage structure established by the collective bargaining contract " from under-
mining by owner-operators who would drive for less than what it cost the carrier to pay
its own employees , and (2 ) to prevent "progressive curtailment of jobs through with-
drawal of more and more carrier-owned vehicles from service." [Emphasis supplied.]
Id. at 294.
APPENDIX A
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF WILSON
& CO., INC., ARMOUR AND COMPANY, SWIFT & COMPANY, MEAT
PACKING PLANT, SWIFTS-, COMPANY, SALES UNITS, AND OTHER
EMPLOYERS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby give notice that :
WE WILL NOT take any action an object of which is to force or
require Wilson & Co., Inc., Armour and Company, Swift &
Company, Meat Packing Plant, Swift & Company, Sales Units,
and various other employers to agree to the addendum, incorpo-
rated as an exhibit in their agreements and contracts with the
undersigned Union entered into on and after June 6, 1961, and
providing as follows :
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer agrees that all meat and meat products
which originate with or are processed or sold by the Employer
and are destined to be sold or consigned to customers or con-
signees located within the city limits of Chicago shall be
delivered to such customers or consignees from the Chicago
city dock or other Chicago distribution or terminal facility of
the Employer by employees covered by the agreement. It
is specifically understood that all deliveries to customers or
consignees of the Employer within the Chicago city limits
shall be made only by employees covered by this agreement.
In the event that the Employer does not have sufficient
equipment at any given time to deliver his then current sales
or consignments within the Chicago city limits, it may con-
tract with any cartage company whose truckdrivers enjoy
the same or greater wages and other benefits as provided in
this agreement for the making of such deliveries.
This addendum shall not in any way be construed to di-
minish the description of the work covered by this agreement
as set forth in any provision of this agreement.
WE WILL NOT maintain, give effect to, or enforce the agreements
and contracts entered into by the aforementioned employers and
the undersigned union on and after June 6, 1961, insofar as said
agreements and contracts provide that :
Article XII. (1) Livestock, meat and meat products for
delivery by truck to a distance not exceeding 50 miles from
the Chicago Stock Yards, whether to final destination or
point of transfer, shall be delivered by the company in their
own equipment, except when there is a lack of equipment at
individual plants or branches, and then all effort will be made
to contract a cartage company who employs members of
Local No. 710. Employer agrees to do all possible to use own
equipment at all times.
WE WILL NOT enter into any contract or agreement, express or
implied, with Wilson & Co., Inc., Armour and Company; Swift
& Company, Meat Packing Plant; Swift & Company, Sales Units;
or any other employer, 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 from doing business with any other person.
WE WILL NOT engage in, or induce or encourage employees of
the employers named above, to engage in a strike, or threaten,
coerce, or restrain the aforesaid employers by picketing or other-
wise, where in either case an object thereof is to force or require
the aforesaid employers to cease doing business with Frozen Food
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1247
Express, Belford Trucking Company, Inc., Refrigerated Trans-
port Co., Inc., Trans-Cold Express, Inc., Watkins Motor Lines,
Inc., Zero Refrigerated Lines, or with any other similarly situated
carriers, or to force or require the self-employed operators of
trucks delivering for Frozen Food Express, Belford Trucking
Company, Inc., Refrigerated Transport Co., Inc., Trans-Cold
Express, Inc., Watkins Motor Lines, Inc., Zero Refrigerated
Lines, or any other similarly situated carriers, to join Respondent
Union, or any other labor organization.
MEAT AND HIGHWAY DRIVERS, DOCKMEN,
HELPERS AND MISCELLANEOUS TRUCK
TERMINAL EMPLOYEES, LOCAL UNION
No. 710, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Midland Building, 176 West Adams Street, Chicago, Illinois,
60603, Telephone No. Central 6-9660, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On June 1, 1961,1 the following charges were filed against Meat and Highway
Drivers, Dockmen, Helpers and Miscellaneous Truck Terminal Employees Local
Union No. 710, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (hereinafter called the Union) •
Wilson & Co.,Inc --------------------------------------- 13-CC-260-3
Armour and Company----------------------------------- 13-CC-260-4
Swift & Company, Meat Packing Plant---------------------- 13-CC-260-5
Swift & Company, Sales Units----------------------------- 13-CC-260-6
Wilson & Co., Inc. (hereinafter called Wilson) alleged in substance that the Union
was engaging in a strike and that its members employed by Wilson were refusing
to work for Wilson; and, that an object of the strike was to force Wilson to enter
into an agreement prohibited by Section 8(e) of the National Labor Relations Act
(hereafter called the Act). Also, that a further object was to force Wilson to enter
into an agreement which would cause the employer to cease doing business with
persons who were not parties to a contract with the Union or who were not parties
to a "Central States" or other "Over-the-Road Teamsters Motor Freight" contract.
Wilson specifically charged the Union of violations of the (i) and (ii) provisions
of Section 8(b) (4) (A) and (B) of the Act.
Armour and Company (hereafter called Armour) in essence charged that the
Union engaged in similar conduct as that described in the Wilson charge, and that
an object of the strike was to force or require Armour to enter into an agreement
'All dates herein are in the year 1961 unless otherwise indicated.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prohibited by Section 8(e) of the Act. Armour charged the Union of a violation
of Section 8 (b) (4) (i) and (ii) (A) of the Act.
Swift & Company filed separate charges on behalf of its Meat Packing Plant
(hereafter called Swift Plant) and its Sales Units (hereafter called Swift Sales).
In each instance Swift charged that the Union caused its members who were em-
ployed by Swift to engage in a strike and to refuse to work; that an object of the
strike was to force or require Swift Plant and Swift Sales to enter into an agree-
ment proscribed by Section 8(e) of the Act.
On June 20, Frozen Food Express, Belford Trucking Company, Inc., Refrigerated
Transport Co., Inc., Trans-Cold Express, Inc., Watkins Motor Lines, Inc., and
Zero Refrigerated Lines (hereafter collectively referred to as Frozen Food, et al.)
filed charges against the Union in Cases Nos. 13-CC-265 and 13-CE-6. The charge
in 13-CC-265 was subsequently amended on July 21. In brief, the parties charged
in Case No. 13-CC-265 that the Union, through its members, engaged in a strike
on or about June 1 for the following objectives:
(a) To force or require self employed truckers bringing meat into and out
of Chicago to join a union.
(b) To force Chicago meat packing companies to cease doing business with
truckers who were not parties to a Teamster over-the-road contract.
(c) To force or require employers to enter into an agreement prohibited
by Section 8(e) of the Act.
The parties charged that the Union violated Section 8(b) (4) (i), (ii) (A) and (B)
of the Act by virtue of this conduct.
In Case No. 13-CE-6 it was charged that the Union entered into contracts with
Chicago area meat companies, on and after June 1, whereby the meat companies
agreed, expressly or impliedly, to cease doing business with others. This activity
was alleged to violate Section 8(e) of the Act.
The Acting Regional Director for the Thirteenth Region issued an order con-
solidating Cases Nos. 13-CC-260-3 through 13-CC-260-6 on July 7 and at the
same time issued a consolidated complaint and notice of hearing. The Union
filed an answer on August 7 in which it generally denied the allegations of the
complaint.
On September 12 the Regional Director for the Thirteenth Region consolidated
Cases Nos. 13-CC-265 and 13-CE-6, and issued a consolidated complaint and
notice of hearing thereon 2 The latter consolidated cases were, on September 27,
consolidated with the cases involving Wilson, Armour, and Swift in order to provide
for a single hearing on the issues. The Union filed an answer by way of a general
denial to the consolidated complaint in Cases Nos. 13-CC-265 and 13-CE-6 on
October 18 The issues were joined and a hearing was held before Trial Examiner
John H. Dorsey, at Chicago, Illinois, on October 25 and 26. Thereafter the parties
with the exception of Wilson, each filed a brief.3 The Union filed a motion to correct
the record in certain respects. No opposition having been filed the motion is granted.
Upon consideration of the entire record and the briefs submitted and upon my
observation of the demeanor of the witnesses, I make the following findings and
conclusions: 4
FINDINGS OF FACT
1. THE BUSINESS OF CHARGING PARTIES
Wilson is, and has been at all times material herein, a corporation duly organized
under, and existing by virtue of, the laws of the State of Delaware. It is primarily
engaged in the processing and/or wholesale distribution of meat and meat products,
and has plants and facilities located in various cities and States of the United States
including Chicago, Illinois.
Armour is, and has been at all times material herein, a corporation duly organized
under, and existing by virtue of, the laws of the State of Illinois. Armour is engaged
in the processing and/or wholesale distribution of meat and meat products, and
maintains plants and facilities in various cities and States of the United States in-
cluding Chicago, Illinois.
2 The complaint was amended in writing on September 11 and orally on October 26, the
first day of the hearing.
J The parties waived oral argument at the close of the `hearing Each was afforded the
opportunity to file a brief.
4 In resolving questions of credibility my findings are predicated in whole or in part upon
my observation of the demeanor of the witnesses. See Sabin , Demeanor Evidence: Elu-
sive and Intangible Imponderables , 47 A.B.A J. 580 (June 1961).
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1249
Swift Plant and Swift Sales are divisions of Swift & Company , which is a corpora-
tion duly organized under, and existing by virtue of the laws of the State of Illinois.
Swift & Company is engaged in the processing and/or wholesale distribution of meat
and meat products , and maintains meatpacking plants and sales units in various
cities and States of the United States including Chicago , Illinois.
In the operation of their businesses , Wilson , Armour, and Swift each annually
receives and ships meat and meat products , valued in excess of $100 ,000, to and
from points located outside the State of Illinois.
Frozen Food , et al., are each motor carriers engaged in the interstate transporta-
tion of food , meat , and meat products under a certificate or permit issued by the
Interstate Commerce Commission. During the year 1960, a representative period,
each of said motor carriers derived revenue in excess of $50,000 from the interstate
transportation of food, meat, and meat products.
I find that Wilson, Armour, Swift Plant, Swift Sales, and Frozen Food, et al.,
are each an employer within the meaning of Section 2(2) of the Act and each is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, I find, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE FACTS MATERIAL TO THE ISSUES
A. Background
The Union represents truckdrivers employed in the Chicago area to transport
meat and meat products . A collective-bargaining agreement known as the Packing
House Agreement, for a term from May 1, 1958, to May 1, 1961, had been individ-
ually entered into with the Union by the small and large packers and others, and
governed the terms of employment of truckdrivers employed by the packers in the
Chicago area; also, who should make deliveries for the packers in the Chicago area
other than their own employees. Article XII of the agreement defined the work
covered by the agreement:
1. Livestock, meat and meat products for delivery by truck to a distance
not exceeding 50 miles from the Chicago Stock Yards, whether to final destina-
tion or point of transfer, shall be delivered by the company in their own equip-
ment, except when there is a lack of equipment at individual plants or branches,
and then all effort will be made to contract a cartage company who employs
members of Local No. 710. Employer agrees to do all possible to use own
equipment at all times.
2. On deliveries to suburban points within the 50 mile zone, Common or
Contract Haulers will be used only when no regular delivery service by the
company's own trucks is maintained to such points. When deliveries are made
on other than regular schedule delivery days, it is agreed that Common or
Contract Haulers can deliver not to exceed 1,000 pounds on such days.
3. The above does not apply to express or railway pick-up by express com-
pany or railway company trucks. No pick-up by terminal company is to be
reloaded into overland or over-the-road trucks unless destination is beyond the
50 mile zone. This applies only to those plants, or branches, who at present
are operating under Local No. 710 contract.
Article XII has been in the packinghouse agreements in the Chicago area for about
20 years.
The major packers in the Chicago area with which the Union contracts are Swift,
Armour, and Wilson. As of May 1958, the commencement of the 1958-61 con-
tract term, Swift had employed about 160 truckdrivers covered by the agreement
with the Union, Armour about 118, and Wilson about 55. At the time of the
hearing, October 1961, Swift employed about 35 or 37 truckdrivers, a drop of 125
or 127; Armour about 37, a drop of 81; and Wilson about 6, a drop of 49. Thus,
of a total employment of 333 truckdrivers at the beginning of the contract term,
the complement had fallen to 80, a reduction in employment of 253 truckdi ivers
employed by Swift, Armour, and Wilson.
This sharp reduction in employment was caused by the relocation by Swift,
Armour, and Wilson of their operations from Chicago to other cities. As explained
by O'Brien, secretary-treasurer of and chief negotiator for the Union, the major
packers in 1955 gradually began moving their operations out of Chicago proper into
other large cities where they already had packinghouses established. `Every time
they moved a big operation out, why, it reduced the work force. It reduced the
inside workers and also reduced the drivers to the point they were no longer needed
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make the pickups and deliveries in the Chicago area." Truck deliveries of meat
products to customers within a 50-mile radius of the Chicago Stock Yards from a
plant facility of Swift , Armour , or Wilson located in the Chicago area continued,
as before , to be made by drivers represented by the Union . However, with the
relocation of operations outside of Chicago , truck delivery of meat products to the
Chicago area from these out -of-State locations by Swift , Armour, and Wilson would
often be made directly to the customer within the Chicago area by the over -the-road
driver, thus bypassing the need for the services of the local driver . Only when a
delivery is made from out of the city to a dock or terminal of a carrier in Chicago,
or to a plant facility of Swift , Armour , or Wilson in Chicago, is the work of local
transshipment performed by the local driver. Delivery by a member of the Union
on this occasion is the consequence of the requirement of article XII of the
agreement.
As explained by O'Brien , the Union 's secretary-treasurer , "We attempted to draft
some language into the [1961 ] contract that would try and recover the jobs lost
by the new policy of the larger packers of having their deliveries come in from
out of the State into our area here by a road -driver that not only did the local
driver's work , but absorbed the city jobs that at one time belonged to members of
our organization , employees living here in the city of Chicago." The general means
by which this objective would be accomplished would be that the "contract carrier
or the common carrier would deliver the meat to the packer 's plant or branch, or
whatever facility he may have for receiving it; and, in turn , our local man would
make the city deliveries of the product hauled in from the various states outside
of Illinois ." As further elaborated by John T . O'Brien:
We were doing business with the major packing plants in the city of Chicago
and we asked that they have the work done in such a fashion , that they have
the loads delivered to facilities in the Chicago area and use the same operation
that they had used for delivery in the city as they had when they had the packing-
houses in Chicago, in place of delivering it directly to the customer around Chi-
cago like they are doing today.
We did not care how they got the deliveries into Chicago-by train , boat, or
truck-as long as the local delivery men were members of our organization
and we recovered the jobs we lost through the depression , so-called depression,
of plants moving out of the area . It made no difference to us how the merchan-
dise got here, as long as our people got the work.
The gravamen voiced by O'Brien was that members of the Union were not making
all the Chicago deliveries . At no time did he assert that the grievance was that
the packers ' own employees were not doing the work.
B. The bargaining
On February 1 the Union gave timely notice of its desire to negotiate a new
agreement . Thereafter it called a meeting for April 21 of all the employers in the
Chicago area engaged in trucking meat products with which it had a collective-
bargaining relationship . At this meeting O'Brien explained the problem which
faced the Union:
He indicated that, in his opinion , the Union had a real problem in Chicago,
that the larger packers had moved out of the area, that product was being
shipped into the Chicago area from out of state , that he felt that we had been
able to arrive at a satisfactory settlement down through the years on economic
matters, that they specifically had to have some language in the contract which
protected the Union in terms of pickups and deliveries in the Chicago area,
and he felt that this would be a real problem....
Actual negotiations began on May 3. Negotiations "down through the years"
had been conducted between the Union and a so-called packer group The packer
group at the outset of the 1961 negotiations was composed of Armour , Wilson, and
a fluctuating number of smaller packers Swift had withdrawn from the packer
group about 6 years before the 1961 negotiations . Armour and Wilson withdrew
from the packer group on May 12, 1961 , and did not return for the remainder of
the 1961 negotiations.5 In previous years the history of negotiations had been
5 The packer group was composed of a group of so-called national packers who nego-
tiated with the Union as a flexible group , but not as a formal association . Each of the
employers in the group reserved the right to withdraw and negotiate separately in the
event they disagreed with the policies of the majority of the group . Armour and Wilson
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1251
that "agreement was reached between the Union and the packer group ... : The
Union then approached all other companies that they had contracts on the basis
of the then agreed on agreement with the packer group, and .... in all cases, they
each signed the same type of contract.... .
Before the first meeting on May 3 the Union had presented to the employers a
26-page statement of proposed amendments to the Packing House Agreement. Those
directly pertaining to transportation of meat products in the Chicago area were ar-
ticle XVI, "Job Classification Jurisdiction"; article XXXIII, "Extra Equipment," a
modification of paragraph 1 of article XII of the 1958-61 contract; and article
XXXVI, "Subcontracting." The proposed article XVI reads:
The Employer agrees not to use road drivers, or city or suburban drivers
to do any work, all work belonging exclusive under jurisdiction of Local No.
710 and, accordingly, to be performed by present members of the Union or
those to become members of the Union.
The proposed article XXXIII reads:
Livestock, meat and meat products for delivery by truck to a distance not
exceeding 50 miles from the Chicago Stock Yards, whether to final destination or
point of transfer, shall be delivered by the company in their own equipment,
except when there is a lack of equipment at individual plants or branches, and
then a cartage company who employes members of Local No. 710 will be used.
Employer agrees to do all possible to use own equipment at all times.6 [Em-
phasis supplied.]
The proposed article XXXVI reads:
(a) The Employer agrees to refrain from using the services of any person
who does not observe the wages, hours and conditions of employment estab-
lished by Labor Unions having jurisdiction over the type of services performed.
(b) For the purpose of preserving work and job opportunities for the em-
ployees covered by this Agreement, the Employer agrees that no work or
services presently performed or hereafter assigned to the collective bargaining
unit will be subcontracted, transferred, leased, assigned or conveyed in whole
or in part to any other Company, branch, or unit, person or non-unit employees,
unless otherwise provided in this Agreement. The Employer may subcontract
work when all of his regular employees are working.
At the May 3 meeting, O'Brien repeated what he had said at the April 21 meeting,
-xplaining "how their membership was dwindling, that so-called gypsies were mak-
ing deliveries in the City of Chicago, and that they had to have some protection in
the form of a contract that would restrict both pickups and deliveries in the City."
The packer group "indicated to the Union that we would have no part of any lan-
guage restricting deliveries or pickups in the Chicago area." The Union indicated
"that was the major issue . . . they would probably have to strike the industry in
Chicago." 7 No progress was made at the meeting.
An informal discussion took place on May 8 among the responsible representa-
tives of the Union and the packer group. "Healy, vice president of Respondent
Union, made it clear in this particular discussion that there was no question but
what the end result would have to result in some specific restrictive language."
The Union proposed the following language:
All work described and covered by this agreement shall be assigned to and
performed exclusively by employees in the collective bargaining unit herein
described and covered. No pick-ups or deliveries of meat and packing house
products shall be made by any over-the-road, city or suburban drivers.
were members of this group at the inception of the negotiations.
group were:
Other employers in the
Hygrade Packing South Chicago Packing Marhoefer
Oscar Mayer Illinois Packing B. Schwartz & Co.
Agar Packing Central Meat Rose Packing
E W. Kneip Packers Provision Phaelzer Bros ( a divi-
Roberts & Oakes Carl Budding sion of Armour)
Dubuque Packing Co. Graver Packing
6 Compare with paragraph 1 of article XII, supra
7 This was said by Michael Healy, vice president of the Union.
717-672-64-vol. 14 3-8 0
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The representative of the packer group stated that he "didn't think this language
was any different than the language they were requesting in their initial demand
and that was the end of it." O'Brien "indicated that he wasn't particularly talking
about language as proposed in the document that they had submitted to the packers.
He felt that he had some type of language that could be worked out and it might be
other than they had in that document, and he also indicated that possibly setting it
up as an addendum and not making it a part of the agreement might be the answer."
Before the ensuing meeting on May 12, "the majority of the packer group indicated
a willingness to work out some type of compromise language which would get them
off the hook on the subject of restrictions of deliveries."
At the May 12 meeting the Union was informed that Armour and Wilson had
withdrawn from the packer group. Those remaining in the group submitted three
proposals addressed to the issue of restrictive deliveries. Each was rejected by the
Union. Healy, vice president of the Union, said "there was only one answer, and
that was to hit the bricks." No resolution of the question was achieved at the May
12 meeting.
Further meetings between those remaining in the packer group and the Union
were held on May 17, 22, and 23. Attempts were made to draft a provision which
would satisfy the Union. On May 23 the then participants in the packer group drafted
with the Union terms to settle the question of Chicago transportation and other
economic issues which had divided the parties. The Union accepted these terms
upon the express condition that it was an agreeable basis for settlement only "if
Swift, Armour, and Wilson would go along on the same basis"; if not acceptable to
Swift, Armour, and Wilson, "the whole industry would be on the street."
The tentative agreement thus reached, as it pertains to the subject of Chicago
transportation, is headed "Addendum to Agreement" (hereinafter referred to as
the First Addendum) and reads:
ADDENDUM TO AGREEMENT
It is mutually agreed between the employer signators to this agreement and
Local Union 710 that all meat and meat products which originate with the
employer for truck shipment into and out of the Chicago City limits will be done
by a Certificated Carrier signatory to the Central States or other Over-the-Road
Teamster Motor Freight Agreement.
It is also agreed that all local overflow cartage shipments of meat and meat
products originating with the employer in Chicago will be done by cartage
companies which are signators to this agreement.
Company owned or Company leased equipment is exempt from this adden-
dum, except Company over-the-road drivers will not be permitted to make
retail store door delivery within the Chicago City limits. Leased equipment
leased directly to the Company will be considered as Company owned equipment.
The reference to carriers who are "signatory to the Central States or other Over-
the-Road Teamster Motor Freight Agreement" is based on the terms of these agree-
ments providing that "operations shall be dock to dock" without local "pickup and
delivery." As explained for the Union by its secretary-treasurer, O'Brien, "There
is a couple of clauses in there that protect the city, the local man in making city
deliveries. In other words, it calls for all work performed in the city to be done
by local pickup and delivery men." Limitation of over-the-road truck shipments to
carriers signatory to the over-the-road agreements would therefore effectively achieve
the Union's objective.8
Negotiations then turned to Swift, Armour, and Wilson:
(a) On May 23 Wilson informed the Union that settlement of the economic issues
on the basis of the tentative agreement reached with the packer group was acceptable
to it, but that the addendum was not acceptable.
(b) On May 25 the Union met with Swift to negotiate an agreement pertaining
to its packing plant. The Union presented to Swift the tentative agreement which
had been reached with the packer group. O'Brien explained, with reference to the
addendum, that "there were numerous brokers with permits arranging for drivers
to come over the road into Chicago and make direct deliveries to consignees in the
city after long road trips. He contrasted this with the so-called legitimate situation
8Article 40 of the Over-the-Road Motor Freight Agreement provides:
There shall be no pickup or delivery of a solid load in the area under the jurisdic-
tion of I B.T. Locals 710, 782, 801 and Independent Local 705, in the Chicago area,
other than those that may be permitted under the terms of said Local's agreements.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1253
whereby an over-the-road driver brought his load to a city dock or terminal where
the city man then took over for local distribution. He said that the ICC regulations
were being violated by the first category described; also mentioned that there were
a good many city drivers out of work." No agreement was reached at that meeting
or at the next meeting held on May 31. A similar impasse was reached at separate
meetings conducted to negotiate an agreement covering Swift Sales.
(c) The Union met with Armour on May 29. Armour, as did Wilson and Swift,
maintained that the addendum was unlawful. No agreement was reached.
On May 31 the packer group met with the Union and tried to persuade the
Union not to call a strike against the employers then in the group because they had
agreed to all the Union's terms. The Union replied that the entire industry-
including Wilson, Armour, and Swift-had to accept the terms in order to prevent
a strike.
C. The strike
On June 1 the Union called a strike of all the employers in the industry, and
picketed their premises.
Between June 1 and June 5 the Union signed individual agreements with 17 em-
ployers settling the strike with them. These agreements included an addendum
in substantially the same form as the First Addendum tentatively agreed upon on
May 23 with the packer group. It reads:
ADDENDUM TO AGREEMENT
It is agreed by and between the Employer and the Union that the following
addendum shall be a part of the collective bargaining agreement in effect be-
tween the Employer and the Union. The Employer agrees that all meat and
meat products which originate with the Employer for truck shipment into and
out of the Chicago city limits will be delivered only to a city dock and not di-
rectly to a consignee and 9 will be done by a certificated carrier who is a
party to the Central States or other Over-The-Road Teamster Motor Freight
Agreement.
All local overflow cartage shipments of meat and meat products originating
with the employer in Chicago will be transported by cartage companies who
are parties to the collective bargaining agreement referred as above.
Company owned or Company leased equipment is exempt from this ad-
dendum except that Employer over-the-road drivers will not be permitted to
make retail store door deliveries within the Chicago city limits. Leased
equipment leased directly to the Company will be considered the same as em-
ployer owned equipment .10
On June 5 a preliminary injunction proceeding pursuant to Section 10(1) of the
National Labor Relations Act was instituted?i On the same day the Union pre-
sented Swift, Armour, and Wilson with a new addendum in place of the First Ad-
dendum. The New Addendum, herein referred to as the June 5 Addendum, reads:
ADDENDUM
It is agreed by and between the Employer and the Union that the following
addendum shall become a part of the collective bargaining agreement entered
into between the Employer and the Union.
The Employer agrees that all meat and meat products which originate with
or are processed or sold by the Employer and are destined to be sold or con-
signed to customers or consignees located within the city limits of Chicago
shall be delivered to such customers or consignees from the Chicago city dock
or other Chicago distribution or terminal facility of the Employer by em-
ployees covered by this agreement. It is specifically understood that all de-
liveries to customers or consignees of the Employer within the Chicago city
limits shall be made only by employees covered by this agreement.
In the event that the Employer does not have sufficient equipment at any
given time to deliver his then current sales or consignments within the Chicago
city limits, it may contract with any cartage company whose truckdrivers enjoy
O The words "will be delivered only to a city dock and not directly to a consignee and"
were deleted from 11 of the agreements and included in 6 of the agreements
"Inasmuch as the Union admits in its brief that this addendum "is substantially the
same form as the First Addendum" the label "First Addendum" when used herein includes
both.
u U.S D.C. Northern District of Illinois (Civil No. 61C 960).
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same or greater wages and other benefits as provided in this agreement
for the making of such deliveries.
This addendum shall not in any way be construed to diminish the descrip-
tion of the work covered by this agreement as set forth in any provision of
this agreement.
It is to be noted that the above addendum was proposed on June 5 and after its
submittal the Union continued the strike. Also, the Union modified its demands by
proposing that paragraph 1 of article XII (article XXXIII of the Union's initial de-
mands in the 1961 negotiations) read:
Livestock, meat and meat products for delivery by truck to a distance not
exceeding fifty miles from the Chicago Stock Yards, whether to final distribu-
tion or point of transfer, shall be delivered by the Company in their own
equipment, except where there is a lack of equipment at individual plants or
branches, and then a cartage company whose truck drivers enjoy the same or
greater wages and other benefits as provided in this agreement will be used.
Employer agrees to do all possible to use its own equipment at all times.
[Emphasis supplied.] 12
The strike was settled on June 6. On that day memoranda of agreement were
executed by the Union, Swift, Armour, and Wilson setting forth the terms of settle-
ment of the economic issues. It was agreed that article XII of the previous con-
tract would be unchanged. An oral understanding was also reached to the effect
that the agreements in final form which would thereafter be executed would incorpo-
rate the addendum proposed by the Union on June 5 as an appendix with the stipula-
tion that bargaining and a strike to secure its adoption would be deferred until its
validity was determined by the Board and a court of last resort. This oral under-
standing was reduced to final written form in the following strike settlement agree-
ment which was later executed:
1. The Union agrees on behalf of itself and its members, except as specifically
provided otherwise below, that it shall not engage in a strike, stoppage, slow-
down, or other suspension of work, or picketing, regarding the provision here-
to annexed and marked "Exhibit A" [the new Addendum] (now the subject
of charges before the National Labor Relations Board), or any variation
thereof.
2. The Company agrees that if and when a decision of the National Labor
Relations Board or (in the event that such decision of the National Labor
Relations Board is the subject of appellate review within sixty (60) days of
such decision) a final determination by a court of last resort concludes that
"Exhibit A" is valid, it shall, upon thirty (30) days' notice in writing from
the Union, bargain collectively regarding the subject matter of the aforesaid
"Exhibit A."
3. In the event that there is a final determination by a court of last resort
that the aforesaid "Exhibit A" is valid, and, thereafter, the parties (the Com-
pany and the Union) fail to reach an agreement regarding the subject matter
referred to in "Exhibit A", the Union may engage in a strike and the Company
may engage in a lockout with reference thereto.
On June 6 at the same time that agreement was reached with Swift, Armour, and
Wilson, by mutual agreement with all other employers in the industry with whom
the Union had negotiated in 1961, the Union canceled all agreements which incorpo-
rated the First Addendum which had been entered into between June 1 and 5; and,
no agreements of the kind consummated during that period remained in effect after
that time. On June 6, at the same time and in addition to the agreements reached
with Swift, Armour, and Wilson, a new agreement was reached with all of the
other employers in the industry, and the terms of this new agreement contain the
same provision for strike settlement and the addendum as was concluded with Swift,
Armour, and Wilson.
In the 1961 agreements with Armour, Wilson, and all other employers in the
industry, except Swift, article XII was continued and carried over in the unchanged
form in which it had existed for 20 years past.
It is undisputed that an object of the strike from June 1 to 5 was to force or
require Swift, Armour, and Wilson to agree to the First Addendum; and, an object
of the strike from June 5 to 6 was to force or require Swift, Armour, and Wilson
to agree to the addendum proposed by the Union on June 5.
12 Compare with the first proposed article XXXIII, supra.
Inasmuch as the Union later abandoned this proposal it is set forth only as evidence of
the Union's intent.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1255
D. The activities of Frozen Food, et al.
O'Brien, the Union's secretary-treasurer, testified that the dispute concerning the
various addenda arose because motor carriers who are not parties to a Teamsters
"over-the-road" contract are making deliveries to final destinations and accepting
loads at the points of origin on shipments which come into or go out of Chicago. In
contrast to this method of operation, the Teamster's "over-the-road" agreements
contain pickup and delivery clauses which require over-the-road carriers to deliver or
pick up shipments at the carrier's terminal or dock and prohibit the delivery or
acceptance of a load at the consignee's or consignor's place of business. Under
these contracts, the shipment to and from a carrier's terminals or facilities must be
assigned to local or city drivers who are members of the Union.
The six Charging Parties, Frozen Food, et al., in Cases Nos. 13-CC-265 and
13-CE-6, are all engaged in transporting food, meat, and meat products across
State lines under certificates or permits issued by the Interstate Commerce Commis-
sion. Since at least 1955, these carriers, and others, who are not parties to Teamsters
contracts, have been making deliveries and pickups in Chicago for packers and their
customers without a terminal stopover or the employment of local or city drivers.
Within the past year, for example, each of the carriers in this case has made direct
deliveries and pickups at the facilities of virtually all of the Chicago meatpackers,
including those of Swift, Wilson, and Armour.13 Direct deliveries and pickups at
the facilities of the packers' Chicago customers have also been made regularly
without the use of local drivers.14 Combination deliveries, where part of the load
is delivered to a packer's place or business and the remainder is delivered directly
to one or more of the packer's customers, are also frequent occurrences. As
O'Brien testified, the Union's addenda were intended to preclude the packers from
utilizing the services of carriers who were not contractually required to hire the
Union's members for all local deliveries and pickups.
Frozen Food, et al., operate their business exclusively with trucks that are owned
and operated by individual contractors. Under the terms of the applicable con-
tracts, the contractors are fully responsible for the operation, care, and maintenance
of their equipment; they have complete control over the method of delivery; they
make their own arrangements concerning wages, hours, and conditions of employ-
ment; they hire, fire, and supervise their own employees; and they are paid a per-
centage of the gross revenue received by the carriers for the shipment.
Indicative of the immediate effect of the First Addendum: Agar Packing informed
Watkins Motor Freight that they would no longer be used as a carrier for ship-
ment of its products out of Chicago. This was based on the fact that the addendum
prohibited use of truckers who were not parties to a Central States or other
Over-the-Road Teamsters agreement.
IV. PERTINENT SECTIONS OF THE ACT
Section 8(e) of the Act makes it an unfair labor practice "for any labor organiza-
tion and any employer to enter into any contract or agreement, express or implied,
whereby such employer ceases or refrains or agrees to cease doing business with
any other person...." Section 8(b) (4) provides that it shall be an unfair labor
practice for a labor organization:
(i) to engage in, or induce or encourage any individual employed by any
person engaged . . . in an industry affecting commerce or engage in, a strike
or (ii) to threaten, coerce, or restrain any person engaged ... in an industry
affecting commerce, where in either case an object thereof is:
(A) forcing or requiring an employer or self-employed person to join
any labor or employer organization or to enter into any agreement which
is prohibited by Section 8(e) [or]
(B) forcing or requiring any person . . . to cease doing business with
any other person... .
13 A substantial portion of each of the major packers ' deliveries are made by outside
carriers who pick up and deliver from and to consignees' docks . Ninety percent of
Armour's and all of Wilson 's deliveries are made by outside carriers
14 For example, a shipment by Armour may be made on one of the Charging Party's
trucks from Armour 's warehouse In Houston , Texas, directly to the consignee -customer,
Illinois Packing Co , in Chicago ; the delivery being made directly to the consignee-
customer and not to Armour's Chicago facility.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE LANGUAGE OF THE ADDENDA, THE INTENT OF THE PARTIES AND THE
SCOPE OF THE RESTRICTIONS IS CONTROLLING
It is undisputed that the Union went on strike on June 1 to force or require
Wilson, Swift, and Armour to agree to the First Addendum; and the First Ad-
dendum would require that:
1. All meat and meat products which originated with Wilson, Swift, or Armour
for truck shipment into and out of the Chicago city limits would be required to
be shipped with truckers party to the Central States or other Over-the-Road Team-
sters Agreement; conversely, Wilson, Swift, and Armour would have to cease doing
business with those truckers who had handled such shipments for them in the past
who were not parties to the Central States or other Over-the-Road Agreements.15
2. All shipments of meat and meat products originating with Wilson, Swift, and
Armour in Chicago which could not be made by the companies with their own equip-
ment and own employees could only be made by a cartage company having a
collective-bargaining contract with the Union.
Also, it is undisputed that the Union submitted the addendum of June 5 and
continued the strike thereafter with the object of forcing or requiring Wilson , Swift,
and Armour to agree to its terms. This addendum provides that the products of
Swift , Armour , and Wilson can be delivered within the city limits of Chicago by
their employees who are members of the Union . But, if not delivered by the packers'
own employees , all deliveries to customers or consignees within the city limits of
Chicago would be required to be made by cartage companies having contracts with
the Union . In other words interstate carriers of the packers ' products would be
forbidden to make deliveries to and pickups from the packers' customers or con-
signees in Chicago as they have since 1955. Instead the interstate carriers would
be required to deliver to or pick up from a city dock , distribution or terminal
facility-this being in conformity with the provisions of the Central States and other
Over-the-Road Teamsters Agreements referred to in the First Addendum.
There is language in the addendum submitted on June 5 which if read in vacuo
would permit the packers to use, for Chicago area deliveries , other than cartage
companies having agreements with the Union ; specifically
In the event that the Employer does not have sufficient equipment at any given
time to deliver his then current sales or consignments within the Chicago city
limits, it may contract with any cartage company whose truckdrivers enjoy the
same or greater wages and other benefits as provided in this agreement for the
making of such deliveries.
However , it is apparent that if circumstances arose making this provision applica-
ble, the packers would be restricted in their choice of cartage companies to those
who meet with the approval of the Union.
Although the addendum of June 5 differs semantically from the First Addendum
there is no difference in its practical effect. Union Secretary-Treasurer O'Brien made
clear that the purpose and intent of the addendum proposed by the Union on June 5
and the First Addendum was: (1 ) to stop interstate carriers making deliveries to and
pickups from customers and consignees in Chicago ; and (2) to have all deliveries
and pickups in Chicago made only by members of the Union.
The Union devotes a considerable part of its brief arguing that the addenda are
"conventional `work jurisdiction ' or `work assignment' argeements" and seeks to per-
suade that the addenda are analogous to subcontracting clauses which seek to pro-
tect the work "regularly" done by the packers' own employees . That the work was
"regularly" done by the employees of Swift , Armour , and Wilson is refuted by the
facts. The facts reveal no dispute between the Union and packers with reference
to deliveries and pickups made from and to the packers' Chicago facilities by the
packers' own employees The dispute arises from the packers moving their fa-
cilities from Chicago ; starting in 1955, and thereafter making deliveries from out-
of-State facilities by interstate carriers direct to customers and consignees in Chicago
and pickups by interstate carriers directly from such customers and consignees for
interstate transportation . The members of the Union never had done this work.
While the parties to this proceeding frequently refer to a bargaining unit, the
contracts with the Union do not define such a unit. True, the Union has for many
years bargained with all the packers in the Chicago area and has been successful
in having each of them sign uniform individual contracts . But, the Union does not
limit itself to bargaining with a packer for its employees. It goes beyond the
employer-employee relationship in its insistence that each packer when it finds it
necessary to make deliveries in the Chicago area by other than its own employees must
15 Frozen Food, et al., are not parties to such agreements.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1257
contract with a cartage company who employs members of the Union. This un-
questionably projects into a field of work not "regularly" performed by the packers'
employees. While under such circumstances the relationsip between the outside
cartage company and the packer is contractual, it is not a subcontract; it does not
cover work "regularly" performed by the packers' own employees.
In any event it is of no consequence as to how the addenda may be labeled. It
is the language of the addenda, the intent of the parties, and the scope of restrictions
weighed against the proscriptions of Section 8(e) that is controlling. Cf. Milk
Drivers and Dairy Employees Union, Local No. 546 (Minnesota Milk Co.), 133
NLRB 1314. In Gallagher & Sons, 131 NLRB 925, a case the facts of which are
strikingly similar to those in the instant case, the Board stated:
Further, by proscribing contracts "express or implied," Congress obviously
intended that the thrust of Section 8(e) extend not only to contracts which
clearly on their face cause a cessation of business, but also to those contracts
which by their intended effect or operation achieve the same result. No other
interpretation appears open or reasonable ; else the efficacy of this section would
be nullified. [Emphasis supplied.]
The Gallagher & Sons case followed Employing Lithographers of Greater Miami,
130 NLRB 968, in which the Board held:
Congress was intent upon outlawing "hot cargo" clauses no matter how
disguised. Probably no language can be explicit enough to reach in advance
every possible subterfuge of resourceful parties. Nevertheless we believe that
in using the term "implied" in Section 8(e) Congress meant to reach every
device which, fairly considered, is tantamount to an agreement that the con-
tracting employer will not handle the products of another employer or cease
doing business with another person... .
VI. THE ADDENDA ARE PROSCRIBED BY SECTION 8(e) OF THE ACT
Both addenda would requiure the packers to cease doing business with interstate
carriers to the extent that such carriers make deliveries to and pickups from cus-
tomers and consignees in the Chicago area. Further, both would require the packers
to cease and refrain from doing business with carriers in the Chicago area whose
employees are not members of the Union or whose labor policies are not approved
by the Union. The Board has uniformly held that Section 8(e) prohibits agree-
ments that "directly or indirectly" require an employer to cease and desist from
doing business with other persons. Amalgamated Lithographers of America (Ind.),
130 NLRB 985; Employing Lithographers of Greater Miami (Miami Post Com-
pany), 130 NLRB 968; Van Transport Lines, Inc., 131 NLRB 242; Gallagher &
Sons, 131 NLRB 925; Pilgrim Furniture Co., 128 NLRB 910; District No. 9, Inter-
national Association of Machinists, AFL-CIO (Greater St. Louis Automotive Trim-
mers), 134 NLRB 1354; Automotive Petroleum & Allied Industries Employees
Union Local 618 (Greater St. Louis Automotive Trimmers, etc.), 134 NLRB 1363;
Calorator Manufacturing Corp., 129 NLRB 704. Quod erat demonstrandum, the
First Addendum and the June 5 Addendum come within the purview of Section 8(e)
of the Act.
VII. VIOLATIONS OF SECTION 8(b) (4) (i), (ii) (A) AND (B) OF THE ACT
Having found that the addenda are proscribed by Section 8(e) of the Act in
that each would require "cease doing business with any other person," it follows
that the Union, which admittedly called the strike on June 1 to force or require
Swift, Wilson, and Armour to agree to the First Addendum and continued the strike
after June 5 to force or require those employers to agree to the addendum proposed
by the Union on that date, violated Section 8(b) (4) (i), (ii) (A) and (B) of the
Act. Gallagher & Sons, 131 NLRB 925.
VIII. THE UNION BY ENTERING INTO CONTRACTS INCLUDING THE FIRST ADDENDUM
COMMITTED UNFAIR LABOR PRACTICES WITHIN THE MEANING OF SECTION 8(e)
OF THE ACT
Section 8(e) of the Act makes it an unfair labor practice "for any labor organiza-
tion and any employer to enter into any contract, express or implied" whereby an
employer agrees to engage in conduct proscribed in Section 8(e) of the Act. Since
it has been found that the First Addendum comes within the proscriptions of Sec-
tion 8(e), the entering into of a contract containing the First Addendum is an
unfair labor practice both by the Union and employers party thereto. Therefore,
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by entering into contracts with 17 packers between June 1 and 5, which included the
First Addendum, the Union violated Section 8(e) of the Act. The employer parties
to each of these 17 contracts likewise committed an unfair labor practice; but, the
pleadings allege no such unlawful conduct. Confined by the pleadings I find that
the Union by entering into contracts including the First Addendum committed un-
fair labor practices as defined in Section 8(e) of the Act.16 The fact that these
contracts were canceled on June 6 is not a defense as suggested by the Union in its
brief. The mere entering into an agreement proscribed by Section 8(e) constitutes
a violation. Mary Feifer d/b/a American Feed Company, 133 NLRB 214.17
IX. IN VIOLATION OF THE ACT BOTH ADDENDA REQUIRE MEMBERSHIP IN THE
UNION AS A CONDITION OF DOING BUSINESS
As testified to by O'Brien, the Union's secretary-treasurer and chief negotiator,
the objective of the addenda is to monopolize delivery and pickup of the packers'
products in the Chicago area by members of the Union. Consequently, Frozen
Food, et al., by compulsion of the addenda could continue to make deliveries to
and pickups from the packers' customers and consignees in the Chicago area only if
their employees become members of the Union. Self-employed truckers engaged
by Frozen Food, et al., would be required likewise to become members of the Union.
Therefore, the strike of June 1 and its continuation after June 5 to force and re-
quire membership in the Union as an indispensable condition to do business with
the packers violated Section 8(b) (4) (i), (ii) (A) of the Act.
X. MISCELLANEOUS ARGUMENTS IN DEFENSE ADVANCED BY THE UNION IN
ITS BRIEF
1. The Union advances as a defense that there were economic differences in addi-
tion to the dispute concerning the First Addendum when it called its strike on
June 1. It is no longer open to question that if one of the objects of a strike is
illegal the strike is tainted with illegality and becomes an illegal strike. N L.R.B. v.
Denver Building and Construction Trades Council, et al. (Gould & Preisner), 341
U.S. 675, 698.
2. It is argued by the Union that the protection of the addenda was needed to
provide jobs for its members. Granting this to be so, economic necessity is not
a defense to, nor does it condone a violation of, the Act. Gallagher & Sons, supra;
Employing Lithographers of Greater Miami, supra.
3. Counsel for the Union argues that the words "cease or refrain" are used in
that part of Section 8(e) which refers to handling, using or dealing in another
employer's products, while the single word "cease" is used in that part of Sec-
tion 8(e) which refers to the cessation of business with any other person, means
that agreements not to use the services of other employers are within the statutory
interdiction only if they cause interruption of a continuous cause of conduct, or,
in other words, that such agreements are permissible insofar as they cause a refusal
to enter into a relationship which has never existed or to renew a relationship which
has never existed or to renew a relationship which once existed but has now ter-
minated.18 This argument has no place here. The record shows that the relation-
ship between Swift, Armour, and Wilson and the over-the-road carriers has been
a continuous course of conduct, since 1955, which would be interrupted and brought
to an end by operation of either of the addenda.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth, supra, occurring in connection with the
operations as described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow of commerce.
I6A person does net commit an unfair labor practice under Section 8(e) of the Act
unless it enters into a contract or agreement proscribed by said section.
17 The Board found a violation in Gallagher & Sons, supra, where a period of 11 days
was Involved
Is The language "cease doing business" as used in Section 8(b) (4) of the Act has not
been given such a narrow reading. -See Amalgamated Lithographers of America (Ind ),
1130 NLRB 985. Cf Plumbers and Pipefitters Local Union No 142 ( Maters ), 133 NLRB
307; International Brotherhood of Electrical Workers Local 712 (Hauer), 134 NLRB
812; International Brotherhood of Teamsters etc. Milk Drivers and Dairy Employees
Local 537 (Lohman Sales Company ), 132 NLRB 901.
MEAT AND HIGHWAY DRIVERS, ETC., LOCAL NO. 710 1259
THE REMEDY
Having found that the Union has engaged in certain unfair labor practices, I
recommend that an order issue that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies of the Act.
The cease and desist provisions and affirmative action recommended refer specifi-
cally only to the addendum of June 5 later agreed to and incorporated in contracts
between the packers and the Union. The broad cease and desist provisions remedy,
inter aka, unlawful provisions such as the First Addendum included in the contracts
by and between the Union and 17 packers in the period from June 1 to 5; also,
clauses such as article XXXIII which was one of the Union's demands when it
went on strike on June 1.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
2. Swift Plant, Swift Sales, Armour, Wilson, and Frozen Food et al., are engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
3. The First Addendum and the addendum proposed by the Union on June 5
are within the purview of Section 8 (e) of the Act.
4. The Union, by striking on June 1 with the objective of forcing or requiring
Swift Plant, Swift Sales, Armour, and Wilson to agree to the First Addendum, vio-
lated Section 8(b) (4) (i), (ii) (A) and (B) of the Act.
5. The Union, by entering into contracts with 17 packers, between June 1 and 5,
which included the First Addendum, violated Section 8(e) and Section 8(b)(4)(i),
(ii) (A) and (B) of the Act.
6. The Union, by continuing the strike after June 5 with the objective of forcing
or requiring Swift Plant, Swift Sales, Armour, and Wilson to agree to and include
in a contract the addendum submitted by the Union on that date, violated Section
8(b) (4) (i), (ii) (A) and (B) of the Act.
7. The Union, on and after June 6 by entering into agreements and contracts
with Swift Plant, Swift Sales, Armour, and Wilson and other packers, which in-
cluded the addendum proposed by the Union on June 5, violated Section 8(e)
and Section 8(b) (4) (i), (ii) (A) and (B) 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, I recommend that Meat and Highway Drivers, Dock-
men, Helpers and Miscellaneous Truck Terminal Employees, Local Union No. 710,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, its officers, representatives, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Maintaining, giving effect to, or forcing the agreements and contracts entered
into on and after June 6, 1961, by and between the Union and Wilson & Co., Inc.
(herein called Wilson), Armour and Company (herein called Armour), Swift &
Company, Meat Packing Plant (herein called Swift Plant), Swift & Company, Sales
Units (herein called Swift Sales), and various other employers, insofar as said
agreements and contracts provide:
The Employer agrees that all meat and meat products which originate with
or are processed or sold by the Employer and are destined to be sold or con-
signed to customers or consignees located within the city limits of Chicago
shall be delivered to such customers or consignees from the Chicago city dock
or other Chicago distribution or terminal facility of the Employer by employees
covered by the agreement. It is specifically understood that all deliveries to
customers or consignees of the Employer within the Chicago city limits shall
be made only by employees covered by this agreement.
In the event that the Employer does not have sufficient equipment at any
given time to deliver his then current sales or consignments within the Chicago
city limits, it may contract with any cartage company whose truckdrivers enjoy
the same or greater wages and other benefits as provided in this agreement for
the making of such deliveries.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This addendum shall not in any way be construed to diminish the description
of the work covered by this agreement as set forth in any provision of this
agreement.
(b) Entering into, actively maintaining , giving effect to, or enforcing any other
contract or agreement , express or implied , whereby the employers named in (a),
above, or any other employers , cease or refrain , or agree to cease or refrain, from
handling, using , selling, transporting , or otherwise dealing in any of the products
of any other employer , or from doing business with any other person.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post in conspicuous places in the Union 's business offices, meeting halls, and
places where notices to members are customarily posted, copies of the attached
notice marked "Appendix A." 19 Copies of said notice to be furnished by the Re-
gional Director for the Thirteenth Region , shall, after being duly signed by an
official representative of the Union, be posted by the Union immediately upon receipt
thereof and be maintained by it for 60 consecutive days thereafter. Reasonable
steps shall be taken by the Union to insure that said notices are not altered , defaced,
or covered by any other material.
(b) Furnish to the Regional Director for the Thirteenth Region signed copies of
the aforementioned notice for posting by Swift Plant, Swift Sales, Armour, and
Wilson ; and, all other employers party to an agreement with the Union which in-
cludes the provision set forth in 1(a ), above; and , Frozen Food Express, Belford
Trucking Company, Inc., Refrigerated Transport Co., Inc., Trans-Cold Express, Inc.,
Watkins Motor Lines, Inc., and Zero Refrigerated Lines, if the Companies agree, in
places where notices to employees are customarily posted. Copies of said notice to be
furnished by the Regional Director shall, after being signed by the Union, as in-
dicated , be forthwith returned to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Thirteenth Region in writing , within
20 days from the date of this Intermediate Report of the action taken by the Union to
comply therewith.20
I further recommend that unless the Union shall, within 20 days from the date
of this Intermediate Report, notify the said Regional Director in writing that it will
comply with the foregoing recommendations , the National Labor Relations Board
issue an order requiring the Union to take the action aforesaid.
19 In the event that this Recommended Order is adopted by the National Labor Relations
Board, the notice shall be amended by substituting for the words "Pursuant to the
Recommendations of a Trial Examiner" the words "Pursuant to a Decision and Order."
If the Board' s Order is enforced by a decree of a United States Court of Appeals, the
notice shall be amended by substituting for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
E9 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
Kenny Construction Company of Illinois and George W. Shaeffer
International Union of Operating Engineers , Local No. 181, AFL-
CIO and George W. Shaeffer . Cases Nos. 9-CA-2771 and 9-CB-
1087. August 7, 1963
DECISION AND ORDER
On May 31, 1963, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
143 NLRB No. 114.