Milk Drivers and Dairy Employees Local 584, Etc.

National Labor Relations Board - Board Decisions

Mar 27, 1964

146 N.L.R.B. 509 (N.L.R.B. 1964)

MILK DRIVERS & DAIRY EMPLOYEES LOCAL 584, ETC. 509
before us. The allegations contained in the request, not denied by the
Employer, establish in our view that Local 410 is a continuation of
the certified representative herein. Thus, both Locals 5 and 410 are
locals of the same International; Local 410 was chartered in order to
make it possible for the employees at the Climax plant to be repre-
sented more effectively ; the chartering of Local 410 and the transfer
of representative status from Local 5 to Local 410 was approved by the
International and by both Locals 5 and 410; 1 and Local 410's officers
are the same as those of the autonomous Local 5 unit at the Climax
plant. In these circumstances, we find that the requested substitution
of Local 410 for Local 5 as certified representative of the employees
in the unit would insure to these employees a continuity of their present
organization and representation and we shall therefore grant the peti-
tioner's request.2 Such amendment of the certification is not, how-
ever, to be considered as a new certification or a recertification.
[The Board amended the Certification of Representatives issued to
Office Employees International Union, Local No. 5, AFL-CIO, in
Case No. 30-RC-1037 by substituting therein "Office Employees In-
ternational Union, Local No. 410, AFL-CIO" for "Office Employees
International Union, Local No. 5, AFL-CIO."]
1 The Employer does not contend, and there is no indication in the documents filed with
the Board , that the employees involved do not wish to be represented by Local 410.
2 Bushnell Steel Company, 96 NLRB 218. See also United States Plywood Corporation,
98 NLRB 1330 . Although Chairman McCulloch concurred in Gulf Oil Company, 135 NLRB
184, he believes that the instant case is distinguishable . In Gulf, the Board denied the
motion to substitute Local 826 , International Union of Operating Engineers, for Local 715
of the same International as certified representative of the employees involved . In that
case, however, the employees in the involved unit apparently had theretofore been repre-
sented by . their own local and the motion sought to transfer the certification to an
amalgamated local. Under those circumstances , the Board found that the substitution of
Local 826 as representative of the employees would have resulted in a complete loss of
identity of the certified Local 715 , without insuring to the employees in the unit a con-
tinuity of their existing representation . Here, on the other hand, the certified local is an
amalgamated local and the petitioners seek to transfer the certification to a local which
would represent only the Climax employees . In this context , it is clear that the requested
substitution would afford the employees involved representation by a successor local which
both is identified with their specific unit grouping and has a continuing identification with
their prior representative.
Milk Drivers and Dairy Employees Local Union No. 584, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America and Old Dutch Farms, Inc.,
Charging Party. Case No. 2-CC-800. March Vii, 1964
DECISION AND ORDER
On October 9,1963, Trial Examiner Owsley Vose issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
146 NLRB No. 62.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to,a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. - The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.2
1 We find it unnecessary to reach the question of interpreting clause GGA of the in-
dustry contract in concluding that Balsam was a neutral to the dispute between Respond-
ent and Old Dutch
=The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , its officers , agents, representatives , successors, and assigns, shall
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon the charge filed by the Charging Party (herein called Old Dutch) on May
28, 1963, the General Counsel , on June 26 , 1963, issued a complaint against the
Respondent alleging that it had , in the course of a dispute with the Old Dutch,
violated Section 8(b) (4) (i ) and (ii) (B ) of the Act the so-called secondary boycott
provisions ) by causing a strike among the employees of the Balsam Farm Inc.,
picketing the premises owned by Balsam at 8720 Pitkin Avenue, Borough of Queens,
New York , New York, and by uttering threats against Balsam , all with an object
of forcing Balsam to cease doing business with Old Dutch and other persons. Re-
spondent filed an answer which , as amended at the hearing, denies the commission
of any unfair labor practices but does not challenge the interstate commerce allega-
tions of the complaint . The case was heard by Trial Examiner Owsley Vose on
August 13 , 1963 , at New York , New York . All parties appeared and were repre-
sented by counsel at the hearing , and were afforded a full opportunity to be -heard,
to examine and cross -examine witnesses , and to submit oral argument . However,
by agreement of all parties no witnesses were called at the hearing, the parties
stipulating that the testimony and exhibits adduced before Honorable John F.
Dooling, Jr., District Judge, United States District Court, Eastern District of New
York, in June and July 1963 in connection with a Section 10(1) injunction pro-
ceeding known as Ivan C. McLeod v . Milk Drivers and Dairy Employees Local
Union No. 584, International Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America , 65 Civil 748 [ 54 LRRM 2287 ], should be considered
as having been adduced before me in this proceeding . The parties further stipu-
lated that consideration might be given certain testimony which the parties agreed
would be given in this proceeding by three additional witnesses who were not called
in the district court proceeding , were these three witnesses to be called in this
MILK DRIVERS & DAIRY EMPLOYEES LOCAL 584, ETC. 511
proceeding. After the close of the hearing the General Counsel filed a brief which
has been fully considered. The Respondent, although it had requested and was
granted additional time within which to file a brief, failed to do so.i
Upon the entire record herein, I make the following:
FINDINGS AND CONCLUSIONS
1. THE NATURE OF THE BUSINESS OF THE EMPLOYERS
Old Dutch, a New York corporation, has its principal office and place of business
on a portion of the premises owned and operated by Balsam at 8720 Pitkin Avenue,
Borough of Queens, New York City. Old Dutch is in the business of distributing
milk and related products and orange juice at retail. However, Old Dutch has no
processing or bottling facilities of its own. It contracts with Balsam to have Balsam
perform these services for it.
Old Dutch purchases the milk used in its operations from milk brokers. Eighty
percent of the approximately $800,000 worth of milk customarily sold by Old Dutch
in a normal year originates in Pennsylvania and is delivered directly to the Pitkin
Avenue plant.
Old Dutch employs eight driver-salesmen who deliver milk directly to homes on
four milk routes operated in the traditional manner. The driver-salesmen work for
a salary plus -a commission on their sales. Old Dutch also employs a truck main-
tenance mechanic and a driver whose primary work is to deliver milk in bulk to
a retail store operated by Old Dutch ion Flatbush Avenue in Brooklyn. All of the
employees above mentioned are represented for collective-bargaining purposes by
the Respondent.
Since May 5, 1962, Old Dutch has also operated at 1881 Flatbush Avenue,
Brooklyn, New York, a small cash-and-carry self-service retail sales establishment
which was originally designated as a milk depot and is now styled a milk store.
The establishment is equipped with refrigeration cabinets, in which are stored milk
and other milk products and some open shelf and counter space. Milk products
are sold along with beer,-soda, cheeses, some baked goods, cold cuts of meat, coffee,
and other food items. The establishment does not carry a full line of grocery
store or delicatessen store items. Two checkout girls and two supervisors are em-
ployed at the Flatbush Avenue store. They are not represented by the Respondent.
Balsam has complete facilities on the Pitkin Avenue premises for homogenizing,
pasteurizing, and bottling milk. Balsam sells milk wholesale and retails it through
vending machines and home delivery routes through its own driver-salesmen. In
a typical year Balsam has almost $1,500,000 worth of raw milk shipped to its
Pitkin Avenue plant from sources in Pennsylvania.
Balsam leases out portions of its Pitkin Avenue premises to Old Dutch, Sylvan
Dairy, and White Cross Dairy, all of whom are engaged in the retail milk-distribution
business. They have offices on the premises and Old Dutch also rents a fenced-off
parking area for its trucks and a garage in which it has its vehicle maintenance
work performed. Old Dutch also makes use of Balsam's loading platform for
loading its milk and unloading its empty bottles.
Balsam processes milk not only for itself and for its tenants at the Pitkin Avenue
establishment, i.e., Old Dutch, Sylvan, and White Cross, but also for other milk
distributors having their places of business elsewhere, including Michael Dairy, Islip
Dairy, Seacrest Farms, and Cedar Lane Farms. Of these, Old Dutch, Sylvan, and
Cedar Lane operate retail stores, the operation of which gave rise to the labor
dispute involved in this case. Balsam makes no deliveries to any of these stores.
However, it does make wholesale deliveries of milk to grocery stores and bakeries.
Old Dutch's raw bulk milk is delivered by tank truck direct to Balsam's plant and
is placed in Balsam's tanks. A running inventory record is kept. Old Dutch pays
Balsam a fixed amount per can for processing the milk (which includes pasteurizing,
homogenizing, bottling, and loading the milk) and pays an additional fixed amount
per can for office rental, truck storage space, milk storage, and other services.
Citrus Bowl, Inc., herein called Citrus, is a New York corporation engaged in the
sale and distribution at wholesale of orange juice and related products from a plant
in the Borough of Queens, New York, New York. During the past year it shipped
to out-of-State destinations more than $50,000 worth of orange juice and other
products.
'Instead, the Respondent filed the findings of fact and conclusions and the opinion of
Judge Dooling in the district court Section 10(1) injunction proceeding
744-670-65-vol. 146-34
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert H. Carr & Sons, herein called Carr, is a Delaware corporation engaged,
out of its Malvern , Pennsylvania , terminal , in interstate trucking operations . During
the past year Carr performed services valued at more than $50,000 for various
enterprises located outside Pennsylvania . It is found that Old Dutch , Balsam,
Citrus, and Carr are persons engaged in commerce and are engaged in an industry
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
The Respondent , Milk Drivers and Dairy Employees Local Union No. 584 , Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America is a labor organization within .the meaning of Section 2(5) of the Act.
III. THE UNFAIR' LABOR PRACTICES
A. Background
1. The pertinent contract provisions
The collective -bargaining contracts governing the wages, hours, and working con-
ditions of the driver-salesmen and other employees of milk distributors in the New
York City area are negotiated on an industrywide basis between representatives of
Greater New York and Northern New Jersey Milk Dealers Labor Committee and
representatives of three local unions affiliated with the Teamsters , including the
Respondent Local 584. The contracts are signed , however, by the individual milk
dealers and the particular local union involved. About 250 milk dealers have
signed the same form of contract. The current contract runs from October 24,
1961, to October 24, 1963.
Clause 66A of the current contract , which is incorporated in the separate contracts
between the Respondent and both Old Dutch and Balsam, provides , insofar as is
pertinent here, as follows:
It shall be a violation of this agreement for any party to said agreement to
sell or distribute milk retail from wholesale trucks, or for employers to estab-
lish, service , or deliver to depots for the purpose of distributing or selling milk.
Despite the inclusion of the foregoing clause in the current contract and despite
the inclusion of some substantially similar clause in the preceding contracts, after
February 18, 1957, about 15 milk dealers, parties to the contract , have opened about
40 sales establishments similar to Old Dutch 's Flatbush Avenue store in the New
York area.
The standard form contract also includes provisions requiring compulsory arbitra-
tion of-
Any and all disputes and controversies arising under or in connection with
the terms or provisions of this agreement , or in connection with or relating to
the application or interpretation of any of the terms or provisions hereof, or
in respect to anything not herein expressly provided but germane to the subject
matter of this agreement ... .
The contract further forbids all "strikes, lockouts, walkouts . by either
party . , except as against the party failing to comply with the decision and
order of any arbitrator " handed down pursuant to the provisions of the contract.
2. The Respondent invokes arbitration of the question of Old Dutch 's alleged
violation of clause 66A of the contract because of its opening of the Flatbush
Avenue store
As found above, Old Dutch opened its Flatbush Avenue store in May 1962. On
December 11, 1962, Respondent invoked the arbitration clause in its contract with
Old Dutch claiming that the establishment by Old Dutch of the Flatbush Avenue
store constituted a breach of clause 66A of the contract . On March 4, 1963, the
parties formally submitted the issue to the named arbitrator . Hearings before the
arbitrator were held on March 4 and 13 and May 22, and then adjourned to
June 4, 1963. The June 4 hearing did not take place because on Monday , May 27,
1963, the incidents giving rise to the filing of the charge in this case occurred.
B. The picketing and strike activity at the premises shared by Balsam , Old Dutch,
and other lessees of Balsam on May 27, 1963
'About 9 a.m. on Monday , May 27 , 1963, Ike Bogan, the vice president of the
Respondent , and Joe Barone, one of its business representatives , appeared at
MILK DRIVERS & DAIRY EMPLOYEES LOCAL 584, ETC. 513
Balsam's loading platform which was used by Old Dutch and the other lessees of
Balsam. They informed Robert Rutheiser , Balsam's manager , "that we weren't
to put up any milk for Old Dutch Farms because of the same situation of Sunnydale
and the other stores, they were going to close the stores, and [that he, Ruthelser]
knew it had to come sooner or later." 2
About 10:30 that morning Raymond LeVassiur, the president of Old Dutch,
commenced handing out cases of Old Dutch milk from Balsam's refrigerator to one
of the Old Dutch employees. At this point the Respondent's agents, Bogan and
Barone, went into the refrigerator and spoke to Balsam's employees who were also
working there . The Balsam employees ceased work and went outside . It is stip-
ulated that these employees went "out on strike when , and because , Balsam permitted
Old Dutch employees to load milk from the Balsam refrigerator to an Old Dutch
truck." As other Balsams employees arrived to go to work, the Respondent's repre-
sentatives stopped them and instead of reporting for work, the employees gathered
in the parking lot .3
At this time pickets appeared at the two driveways leading to the premises shared
by Balsam, Old Dutch, and the others. They carried sandwich-type signs, one side
of which read, "Unfair, milk company stores violated contract, and destroy job
security," and the other, "On strike. Unfair to Union members Local 584 IBT."
The signs did not identify the employer being picketed. At this time about 20 drivers
from other milk distributors were in the vicinity of the plant. However, they
picked up no milk until the strike was settled about 4.30 p.m. that day.
About 11:30 that morning Joseph Virello, a driver for Citrus, arrived with a load
of Tropicana orange juice for delivery to Balsam. The pickets stopped the truck
and had a conversation with Virello. Virello parked his truck, and called his em-
ployer from Balsam's office and informed him of the situation at Balsam's plant.
Refusing to cross the picket line, Virello left with his load without making the
delivery. Virello returned again at 2 p.m. that day but failed to make the delivery
as the picketing was still in progress.
During the afternoon the pickets also stopped two tank trucks filled with milk
consigned to Balsam. The two trucks were driven by employees of Carr of Malvern,
Pennsylvania. The pickets instructed the drivers to pull into Balsam's parking area
and wait. Because of the picketing, Carr's drivers complied with this request and
did not unload their milk until the agreement settling the strike was reached later
that afternoon. There was a substantial delay in unloading a third tankful of milk
which had been delivered to Balsam by a Carr driver before the strike began because
Guarnieri, the Balsam employee whose duty it was to unload it, went on strike.
C. The strike settlement agreement and the discussions leading thereto
A conference to discuss the strike was held in the office of Sylvan on Balsam's
Pitkin Avenue premises at 2:30 p.m. on May 27. Attending were Vice President
Bogan and Business Representative Barone for the Respondent , President Raymond
LeVassiur and his brother Arthur, vice president of Old Dutch, Nathan Balsam,
secretary -treasurer of Balsam , and Rutheiser , Balsam's manager, David Lieberman,
White Cross ' president, and Sylvan Speroni, the president of Sylvan.
President LeVassiur of Old Dutch reminded Bogan, the vice president of the Re-
spondent , of the no-strike clause in the contract . Bogan replied that he was aware
of it. When LeVassiur inquired "what the issue was," Bogan answered, "I want you
to close your store on Flatbush Avenue." LeVassiur then asked if Bogan was not
2 On May 26 , Manager Rutheiser , as he had passed the plant of Sunnydale Farms, had
observed Sunnydale 's employees congregated on the sidewalk and that Business Repre-
sentative Barone and the top officers of the Respondent were also present Upon question-
ing Barone , Rutheiser was informed that "they are finally going to close the stores. It is
about time . . . ... Barone added that he had done "this same thing that day at Wadding-
ton Farms , Waddington Store, and the Holland Store . . . .. This was a reference to the
stores operated by Waddington Farms and Freeman -Holland , milk distributors in Maspeth
Fearing that the Respondent might take action against Balsam because it processed Old
Dutch's milk , Balsam ' s manager , Rutheiser , inquired whether lie "-had any worries for that
evening." Business Representative Barone replied , "You don 't have to worry about it
tonight."
3The Respondent 's representatives advised Balsam that the strike would have been de-
layed until Balsam started to process milk for Old Dutch late in the day but for Balsam's
permitting Old Dutch to load the refrigerated milk . Balsam asked Old Dutch to return
the milk and this was done, but with Balsam employees , at the Respondent's insistence,
doing the unloading.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware that this issue was presently before an arbitrator and asked if it would not be
sensible to wait until the arbitrator's decision was handed down. Bogan's reply
was, "You are on, strike. You must close the store." President Sperom stated on
behalf of Sylvan, "If you strike Balsam the way you are doing, I cannot get milk
and you are in effect striking me." Bogan brought up the subject of Sylvan's retail
store. Speroni at once agreed to close the store. Lieberman, the president of
White Cross which did not operate a store, protested as follows: "You close the
Balsam plant, I am an innocent party. I am not involved in any way, and yet I
will have no milk." Bogan replied that he could not help it. However, Bogan, ad-
dressing President LeVassiur of Old Dutch, said he "would agree to allow the
plant to operate if [LeVassiur] would close the store." LeVassiur refused. LeVas-
siur proposed that Bogan "allow the Balsam plant to run and bottle the milk for
[his] milk routes but not for [his] store." After taking time out to telephone John
Kelly, the Respondent's president, Bogan announced, "Balsam cannot bottle for
you [Old Dutch] at all. That is it." Balsam's secretary-treasurer, Nathan Balsam,
then entered into the discussion, saying, "You know, you are striking me. I am not
involved in this dispute, or this discussion, or your problems with Old Dutch Farms,
yet you are closing my plant. It certainly does not seem fair. Why don't you let
me bottle for Old Dutch routes? Let me run my plant, and take care of my other
dealers." Bogan refused, declaring, "If you bottle for Old Dutch, you cannot run
the plant."
The discussion went on for quite awhile, and finally the representatives of the other
dairies sought to persuade LeVassiur of Old Dutch to yield, pointing out that none
of the dairies would be able to operate unless it did. Ultimately, about 4:15 p.m.,
Nathan Balsam, declaring that he had no alternative, agreed not to process Old
Dutch's milk if the Respondent would remove the pickets. The Respondent there-
upon removed the pickets and the strike ended. Balsam did not process milk for
Old Dutch for the next few days.
At the request of the Respondent, the LeVassiur brothers, representing Old Dutch,
and Gerard Ganter representing Cedar Lane (which also operated a retail store)
met with President Kelly and two business representatives of the Respondent on
May 31, 1963. Kelly stated that he wished to confer with the employer representa-
tives separately. Kelly talked with Raymond LeVassiur first, at the latter's sugges-
tion. Kelly informed LeVassiur that the Respondent had settled a similar controversy
with Grand View Dairy over the operation of a store on the basis that Grand View
would raise its "store" price for milk to 2 quarts for 47 cents and continue operating
the store. Kelly offered the same settlement to Old Dutch. Other dairies operating
stores would be required to sell 2 quarts of milk for 49 cents .4 At this time Old
Dutch's "store" price for milk was less than 47 cents for 2 quarts. LeVassiur
proposed that Old Dutch be permitted to charge 45 cents for 2 quarts of milk in
bottles and 49 cents for 2 quarts in paper containers. Kelly declared that Old Dutch
must accept the same settlement as Grand View. This offer was accepted by Old
Dutch, the store was reopened, and Balsam resumed processing Old Dutch's milk.
D. Subsequent events
Since the Respondent took strike action against Old Dutch and Balsam because of
Old Dutch's operation of its Flatbush Avenue store, seven other dairies operating
similar retail establishments have raised their "store" price of milk, including Sylvan
and Cedar Lane.
The Respondent, together with Local 602 and 607 of the Teamsters, initiated a
second arbitration proceeding involving Hegeman Farms Corp., and Holland Farms,
Inc., in which the Locals contended that the distributors' operation of retail stores
violated, among others, clause 66A of the standard contract. Invitations to intervene
in this arbitration proceeding have been extended to some 15 milk distributors with
whom the Respondent (or Locals 602 or 607) has a similar controversy. A hearing
in the arbitration proceeding was held before Arbitrator Theodore W. Kheel on
July 10, 1963.
E. Recapitulation; conclusions
To recapitulate, on Monday, May 27, 1963, Respondent informed Balsam that it
was not to process Old Dutch's milk, that the Respondent was going to close all of
the milk stores. As soon as Old Dutch commenced removing previously processed
milk from Balsam's refrigerator, the Respondent immediately caused the employees
4 Kelly explained the advantageous terms offered Old Dutch on the grounds that Old
Dutch and Grand View had borne the brunt of the strike.
MILK DRIVERS & DAIRY EMPLOYEES LOCAL 584, ETC. 515
of Balsam to cease work and go out on strike. Pickets were placed in front of the
driveways leading to the plant. The signs carried by the pickets did not identify the
employer or employers involved in the dispute. The pickets induced the employees
of Citrus and Carr to refuse to cross the picket lines with their loads. In the discus-
sions in the afternoon of May 27, between Respondent and the affected distributors
which shared Balsam's premises , the Respondent flatly took the position that Old
Dutch would have to close its store and that Balsam could not run its plant at all
as long as it processed any of Old Dutch's milk. The strike was called off when
Balsam ultimately yielded to the Respondent's demand that it cease processing Old
Dutch's milk.
The foregoing facts, in my opinion, establish not only that Balsam 's employees
engaged in a strike at the Respondent 's instigation with an object of requiring
Balsam to cease doing business with Old Dutch, but also that the Respondent by
its picketing and personal appeals induced the employees of Citrus and Carr to
refuse to perform serviecs for their employers with an object of requiring Citrus
and Carr to refuse to perform services for Balsam . The Respondent's statement
to Balsam on the afternoon of May 27, that it could not run its plant if it processed
any of Old Dutch's milk, in the context of events in this case , constituted a threat
to continue the strike unless Balsam yielded and ceased doing business with Old
Dutch, an object proscribed by Section 8(b) (4) (B). Since , as found above, Balsam
Citrus, and Carr are all persons engaged in an industry affecting commerce, the
Respondent's conduct comes squarely within the ban of Section 8(b) (4) (i) and
(ii) (B) of the Act, unless, as is apparently contended by the Respondent, because
of the nature of Balsam 's relationship to Old Dutch and the goals sought to be
achieved by clause 66A, which is binding upon Balsam as well as upon Old Dutch,
the Respondent's picketing and strike action against Balsam is to be regarded as
primary in character.
Judge Dooling concluded in the Section 10(1) injunction case, in his opinion
dated August 6, 1963, that the Respondent's picketing and strike action against
Balsam must be regarded as primary in nature and hence was premissible. Judge
Dooling noted that clause 66A (prohibiting distributors from establishing retail
stores ) was included in the standard form contract as a means of protecting the
job security of driver-salesmen . The retail stores with their lower prices for milk
were causing a loss of job opportunities among driver-salesmen . Judge Dooling
further pointed out that Balsam 's continued processing of Old Dutch's milk presented
the same kind of a threat to the job security of driver-salesmen as did Old Dutch's
continued operation of its retail store . In these circumstances , and in view of the
functional integration of Balsam 's processing operations in Old Dutch's milk-dis-
tributing business , Judge Dooling concluded that the dispute was common to both
Old Dutch and Balsam and that the Respondent 's picketing and strike action was
in consequence primary as to each employer.
I am constrained to disagree with this conclusion because in my opinion neither
of the factors relied upon by Judge Dooling warrant making an exception and hold-
ing permissible conduct so clearly falling within the ban of the secondary boycott
provisions of the Act.
In considering the first ground relied on by Judge Dooling-in effect that Balsam,
by continuing to process Old Dutch's milk , was aiding Old Dutch in its dispute
with the Respondent in a manner which was contrary to the spirit of clause 66A
of Balsam 's contract with the Respondent-it should be borne in mind that the
Respondent does not contend that Balsam 's conduct in continuing to process Old
Dutch's milk constitutes a breach of the letter of clause 66A of its contract with
Balsam . Although the Respondent initiated arbitration proceedings against other
dairies which were allegedly violating clause 66A of their contracts , so far as the
record shows, no such proceeding has been commenced against Balsam . Nor could
the Respondent validly contend that Balsam 's conduct above referred to violated
clause 66A. This clause merely bound the employers not "to establish , service or
deliver to depots for the purpose of distributing or selling milk." As found above,
Balsam has done none of these things. It has merely continued to process milk
for one of its many customers for such services , as it had a right to do under its
lease agreement with Old Dutch.
While it is true, as Judge Dooling pointed out, that the effect of Balsam 's conduct
in the long run was to jeopardize job opportunities for the Respondent's driver-
salesmen members, such 'circumstance, in my opinion , does not warrant holding
the Respondent's picketing and strike action against Balsam lawful. In every
secondary boycott situation there can be rationalized some similar element of sup-
port by the neutral third party to the primary employer disputant which conflicts
with the objectives and goals of the disputing union . To regard the presence of
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some such element of support as sufficient to deprive the third party of his neutrality
to the dispute would be to rob the secondary boycott provisions of the Act of all
content and meaning. As the Supreme Court has stated, the congressional objec-
tive underlying the secondary boycott provisions of the Act was "shielding un-
offending employers and others from pressure in controversies not their own.
N.L.R.B. v. Denver Building and Construction Trades Council, et at. (Gould &
,Preisner), 341 U.S. 675, 692. The Respondent's dispute in this case was with Old
Dutch over its operation of the Flatbush Avenue milk store. There was no way
which Balsam, consistent with its exercising its legal rights and fulfilling its con-
tractual obligations to Old Dutch, could bring about the closing of Old Dutch's
store. Thus Balsam in a real sense was a neutral third party embroiled in a
controversy not of its own.
This conclusion, in my view, is not altered by the fact that Old Dutch and Balsam
share the same premises and that Balsam's processing operations are functionally
integrated into Old Dutch's milk-distributing business . There is no evidence, and
no contention is made herein, that Old Dutch and Balsam are in any way related
to one another, either by way of family ties, common ownership, or control. While
Old Dutch leases its office and other space from Balsam , Old Dutch and Balsam
are separate corporate entities whose only relationship to one another is that created
by the lease agreement whereby Old Dutch leases space from Balsam and has
Balsam process its milk for it. As Judge Dooling recognized, the contract created,
in legal contemplation, an "independent contractor relationship." While Judge
Dooling cited Local 282, International Brotherhood of Teamsters, etc. (Acme Con-
crete & Supply Corp.), 137 NLRB 1321, 1324, there is wholly lacking between
Old Dutch and Balsam the "identity and community of interests" which impelled
the Board to hold in that case that Acme was not a neutral third party intended
to be protected by Section 8(b) (4). Rather this case is more like General Drivers,
etc. Local Union No. 886 (James D. O'Dell and H. H. Hulme, Jr. d/b/a Ada
Transit Mix), 130 NLRB 788, in which one of the secondary employers, Transit
Mix, was owned by the sons of the proprietors of the primary employer, Hulme
and O'Dell Concrete Company, which gave financial support to Transit Mix. The
Board nevertheless held that the two concerns were separate legal entities, that they
were not to be regarded either as a single employer or as "allies," and that con-
sequently Transit Mix was "a neutral employer . . . entitled to the protection of
Section 8(b)(4)(i) and (ii)(B) of the Act" (130 NLRB, at 795).5
The conclusion that Balsam is entitled to be regarded as a neutral to the Re-
spondent's dispute with Old Dutch is supported by the secondary boycott cases
involving the building and construction industry. Subcontracting of functions is
commonly done by general contractors in this industry. These cases leave no doubt
that where a genuine independent contractor relationship has been created between
a general contractor and a subcontractor, each is regarded as a neutral third party
to a labor dispute between a union and the other party. N.L.R.B. v. Denver Build-
ing and Construction Trades Council, et al. (Gould & Preisner), 341 U.S. 675,
689-690 and footnote 19; International Brotherhood of Electrical Workers, Local 501,
et al. v. N.L.R.B., 181 F. 2d 34, 37 (C.A. 2), affirmed 341 U S. 694; Lafayette Build-
ing and Construction Trades Council (Southern Construction Corporation), 132
NLRB 673, 681.
In view of the fact that the record in this case shows that in the New York City
area, at least , it is not an uncommon arrangement for a milk distributor to have
his milk processed by an independent contractor, it is reasonable to conclude that
the principles underlying the Board's holding in the building and construction in-
dustry cases are equally applicable to this case.
For all of the foregoing reasons I conclude that Balsam is neutral to the Re-
spondent's dispute with Old Dutch, that the Respondent's picketing and strike
action against Balsam therefore connot be regarded as primary in character, and
that the Respondent's conduct in this respect and its threat to Balsam violated
Section 8(b) (4) (i) and (ii) (B) of the Act.6
5 Cf. Miami Newspaper Printing Pressmen Local No. 46 etc (Knight Newspapers, Inc ),
138 NLRB 1346
6 While the Respondent, because Old Dutch and Balsam share a common situs, could
lawfully have caused a strike of Old Dutch's employees and picketed the driveways at the
Pitkin Avenue premises, had it by its actions made it clear that its controversy was with
Old Dutch (Sailors' Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB
547, 549, highway Truekdrivers and Helpers, Local 107 etc (Riss it Company, Inc.),
130 NLRB 943, 949), as found above, the Respondent did not so limit its strike and picket-
ing activity.
MILK DRIVERS & DAIRY EMPLOYEES LOCAL 584, ETC. 517
IV. CONCLUSIONS OF LAW
1. By its picketing and strike action, the Respondent has induced and encouraged
individuals employed by Balsam, Citrus, and Carr to engage in a strike and a refusal
to perform services with an object of forcing or requiring Balsam to cease doing
business with Old Dutch, and has thereby violated Section 8(b) (4) (i) (B) of the Act.
2. By the foregoing and by its threat against Balsam, the Respondent has
threatened, coerced, and restrained Balsam with an object of forcing or requiring
Balsam to cease doing business with Old Dutch, and has thereby violated Section
8(b) (4) (ii) (B) of the Act.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
my Recommended Order will provide that it cease and desist therefrom and that
it take certain affirmative action which I find necessary to remedy the unfair labor
practices and to effectuate the policies of the Act.
The General Counsel contends that a broad cease-and-desist provision should be
entered in this case. The record establishes that 14 other milk distributors in the
New York City area are operating retail milk stores in claimed violation of clause
66A of the standard contract. This is the controversy which gave .rise to the strike
and picketing against Balsam. The Respondent has openly taken the position that
the operation of these stores must stop, or at least that the stores must be operated
under conditions laid down by it. The Respondent admittedly views its dispute
with the distributors "as an industrywide problem." See Bakery Wagon Drivers &
Salesmen, Local No. 484 (Clifford L. Aksland, d/b/a Sunrise Transportation), 137
NLRB 987,' 995-996. In these circumstances it is appropriate to enjoin all
8(b) (4) (i) and (ii) (B) violations directed against not only Old Dutch but all of
the milk distributors operating retail milk stores in claimed violation of clause 66A of
the standard contract with the Respondent. Compare the Aksland case, supra, and
see Local Union 522, Lumber Drivers, etc. (Republic Wire Corporation), 129 NLRB
376, 380, 383, enfd. 294 F. 2d 811 (C.A. 3); Local 825, International Union of
Operating Engineers AFL-CIO, etc. (United Engineers, etc.), 138 NLRB 279, 280-
281, enfd. 322 F. 2d 478 (C.A. 3); Local 825, International Union of Operating
Engineers AFL-CIO (Nichols Electric Company), 138 NLRB 540, 545.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues the following:
RECOMMENDED ORDER
The Respondent, Milk Drivers and Dairy Employees Local Union No. 584, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from engaging in, or inducing or encouraging employees of the
Balsam Farm, Inc., Citrus Bowl, Inc., Robert H. Carr & Sons, or any other employer
to engage in, strikes, concerted refusals in the course of their employment to use,
manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services; or threatening, coercing, or
restraining Balsam Farm, Inc., or any other employer, where in either case an
object thereof is to force Balsam Farm, Inc., Citrus Bowl, Inc, Robert H Carr, or
any other employer or person to cease doing business with Old Dutch Farms, Inc.,
or any other employer with which hte Respondent has a dispute over the operation
of a retail milk store in claimed violation of clause 66A of its contract with said
employer.
2. Takes the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Post at its business offices and meeting places copies of the attached notice
marked "Appendix." 7 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by responsible officials
of the Respondent, be posted immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous places, including all
In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places where notices to members are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered , defaced , or covered by any other
material.
(b) Notify the Regional Director for the Second Region, in writing, within 20
days from the receipt of this Decision and Recommended Order what steps it has
taken to comply herewith.8
8In 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."
APPENDIX
NOTICE TO ALL MEMBERS OF MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION
No. 584 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFERS , WAREHOUSE-
MEN AND HELPERS OF AMERICA AND TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and , in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL NOT engage in , or induce or encourage employees of the Balsam
Farm, Inc., Citrus Bowl, Inc., Robert H. Carr & Sons, or any other employer
to engage in, strikes , concerted refusals in the course of their employment to
use, manufacture, process, transport , or otherwise handle or work on any
goods, articles , materials , or commodities , or to perform any services; nor
threaten , coerce, or restrain Balsam Farm, Inc., or any other employer, where
in either case an object thereof is to force Balsam Farm , Inc., Citrus Bowl, Inc.,
Robert H . Carr & Sons, or any other employer or person to cease doing business
with Old Dutch Farms, Inc., or any other employer with which we have a
dispute over the operation of a retail milk store in claimed violation of clause
66A of our contract with said employer.
MILK DRIVERS AND DAIRY EMPLOYEES LOCAL UNION No. 584,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN , 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, Squibb
Building, Fifth Floor , 745 Fifth Avenue, New York , New York, Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Sample Hart Motor Company and General Drivers and Helpers
Union Local No. 554, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 17-CA-2?4.1. March 30, 1964
DECISION AND ORDER
On January 27, 1964, Trial Examiner Ivar H. Peterson issued his
Decision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices within
the meaning of the Act, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Decision and supporting briefs.
146 NLRB No. 69.