Milk Drivers Local 471

National Labor Relations Board - Board Decisions

Feb 13, 1974

209 N.L.R.B. 24 (N.L.R.B. 1974)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milk Drivers and Dairy Employees Union Local No.
471, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America and Ronald Roth d/b/a Ronco
Delivery. Cases 18-CC-466 and 18-CC-473
February 13, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 31, 1973, Administrative Law Judge
Benjamin Lipton issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Milk Drivers and
Dairy Employees Union Local No. 471, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Minneapolis, Minnesota, its officers, agents, repre-
sentatives, shall take the action set forth in the said
recommended Order.
DECISION
STATEMEN I OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: These
cases were heard before me on September 13, 1973,1 in
Minneapolis, Minnesota, upon a consolidated amended
complaint by the General Counsel2 alleging that the
Respondent engaged in certain violations of Section
8(b)(4)(i) and (ii)(A) and (B) of the Act. More specifically,
the essential issues are outlined below, in section 111, B. At
the hearing herein, the parties stipulated the admission of
the transcript of the testimony, exhibits, and pleadings in
the Section 10(1) injunction proceeding before the United
States District Court, District of Minnesota, as constituting
evidence with respect to the issues raised in the instant
r All dates are in 1973 unless otherwise specified
2 in Cases I8-CC-466 and 473 the charges were filed respectively on
cases. Posthearing briefs filed by the General Counsel,
Respondent, and the Charging Party have been duly
considered.
Upon the entire record in the cases, I make the
following:
FINDINGS OF FACT
1. JURISDICTION
Ewald Bros. Inc., herein called Ewald, at Golden Valley,
Minnesota. is engaged in the processing and distribution of
dairy products at retail and wholesale. Annually, Ewald
has a direct inflow in interstate commerce of raw milk
valued in excess of $50,000, and its gross volume of
business from sales of its processed dairy products exceeds
$500,000. Respondent admits, and I find, that Ewald is
engaged in commerce within the meaning of the Act.
li. THE LABOR ORGANIZATION INVOLVED
The Respondent, herein also called Local 471, is a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introductory Facts
Ewald sells processed milk and dairy products to
individual homes, stores, distributors, dairy companies,
and other commercial enterprises. In August, it employed
about 50 driver-salesmen to deliver its products on retail
and wholesale routes. Certain sales are regularly made at
dock prices to companies which pick up the dairy products
at Ewald's premises. Ewald has had collective-bargaining
relations with Local 471 for about 30 years.
The Charging Party is Ronald Roth d/b/a Ronco
Delivery, an individual proprietorship, herein called
Ronco. Prior to July 23, Ronco was engaged in business
out of St. Paul, Minnesota, as an independent hauler of
dairy products. From November 1972 through July 23,
1973, Ronco delivered milk and milk products, inter alia,
from Ewald's dock facilities to one of the several stores
owned and operated by Zayre Shoppers' City, herein called
Shoppers City. Ronco is not party to a collective-bargain-
ing agreement with Local 471.
Shoppers City operates several retail stores in the
Minneapolis-St. Paul area, at which it sells food, soft
goods, and other products. Mel Roth, the father of Ronald
Roth, is president and general manager of Shoppers City.
Gustafson Ice Cream and Dairy Co. of Rice Lake,
Wisconsin, herein called Gustafson, and Morning Fresh
Dairy of Minneapolis, herein called Morning Fresh, are
dairy companies. Both such companies, until July 23, have
purchased products from Ewald which they picked up at
Ewald's dock facilities. Neither Gustafson nor Morning
Fresh is signatory to a collective-bargaining agreement
with Local 471.
Respondent has admitted allegations of the complaint, as
follows:
July 24 and August 20. The consolidated complaint was issued on August
22.
209 NLRB No. 10
MILK DRIVERS LOCAL NO. 471
Paragraph 6. At all times material herein, Respondent
has been engaged in a labor dispute with Ronco.
Paragraph 8. In furtherance of its labor dispute with
Ronco, Respondent engaged in the following acts and
conduct:
(a) On July 23, 1973, agents of Respondent parked an
automobile at Ewald's dock facilities so as to block and
physically prevent the loading of Ronco's vehicles with
Ewald's products and the transportation of Ronco's
vehicles from Ewald's dock facilities, as well as the ingress
and egress of other Ronco vehicles to and from Ewald's
dock facilities.3
(b) On July 23, 1973. agents of Respondent ordered and
instructed employees of Ewald not to load Ronco's
vehicles docked at Ewald's dock or any other Ronco
vehicles in the future.
(c) On July 23, 1973, agents of Respondent ordered and
instructed supervisors and managers of Ewald not to load
Ronco's vehicles at Ewald's dock or any other Ronco
vehicles in the future.
Paragraph 9. Since on or about August 10, 1973, agents
of Respondent ordered and instructed employees of Ewald
and supervisors and managers of Ewald not to load
products on vehicles operated by Gustafson and Morning
Fresh Dairy, customers of Ewald, and pursuant to such
orders and instructions vehicles of Gustafson and Morning
Fresh Dairy have not been loaded.
B. Essential Issues
1. Whether Respondent's admitted conduct was en-
gaged in with an object of-forcing or requiring Ewald to
cease doing business with Ronco; forcing or requiring
Ewald to cease doing business with Shoppers City; and
forcing or requiring Shoppers City to cease doing business
with Ronco, in violation of Section 8(b)(4)(i) and (ii)(B) of
the Act.
2. Whether Respondent's admitted conduct was en-
gaged in with an object of forcing or requiring Ewald to
cease doing business with Gustafson, and forcing or
requiring Ewald to cease doing business with Morning
Fresh, in violation of Section 8(b)(4)(i) and (ii)(B) of the
Act.
3. Whether Respondent's admitted conduct was en-
gaged in with an object of forcing or requiring Ewald to
enter into an agreement which is prohibited by Section 8(e)
of the Act, whereby Ewald ceases doing business with any
person not having a collective-bargaining agreement with
Respondent, including Ronco. Gustafson, and Morning
Fresh-in violation of Section 8(b)(4)(i) and (ii)(A) of the
Act.
Respondent denies the alleged unfair labor practices,
and in substance asserts the defenses that (1) the true
object of its admitted conduct as to Ronco, Gustafson, and
Morning Fresh was the enforcement of a work-preserva-
tion clause in its collective-bargaining agreement with
Ewald, thus contending that Ewald was the primary
employer; and (2) in any event Ewald was not a neutral
"unoffending" employer, as alleged by General Counsel,
3 The identical allegation in the 10(1) injunction petition was admitted by
Respondent , but it was denied in part in its answer to the instant complaint
Within the terms of the parties' stipulations herein, I find Respondent is
25
but was acting in collusion with Ronco to avoid its
obligations under the contract in effect between Ewald and
Respondent.
C. Pertinent Facts4
Robert Hosp joined Ewald in 1970 with a management
contract and an option to purchase all the stock. In
February 1973, he became a member of the Minneapolis
and St. Paul Milk Dealers and later executed, with other
signatory employers, and area-wide contract drawn be-
tween the Milk Dealers and Local 471 effective May I for
a 2-year term . It is not shown whether, prior to May 1,
1973, Ewald's contract with Local 471 was negotiated on
an individual or multiemployer basis, nor is any such
contract in evidence. The new contract in 1973 contains an
exclusive hiring hall, union-security, and checkoff clauses.
Article V.Z.A., particularly in question, provides:
Vending Machines, etc.: All dairy products sold or
delivered to persons, firms, corporations, stations,
vending machines, or vendors, including outlets operat-
ed by Employers as cash and carry milk stores, for
resale, shall be handled, processed and delivered by
regular employees of the company, subject to the
provisions of this Agreement. Emergency pickups
excepted where regular deliveries are being maintained
by the employees.
And article XXIV. B. states that-"the parties hereto shall
not use any subcontracting or leasing device to a third
party to evade this Contract."
Hosp joined Ewald in 1970 at a time that the company
was in financial difficulty. Subsequently, he and his family
acquired all 25 shares of Ewald's stock and he became
president and general manager. Early in 1971, Hosp
solicited many grocerymen to assist and participate in the
growth of Ewald. As a result, he sold one share of stock at
$1,500 individually to Ronald Roth, Leonard Jensen, and
Jim Walsh, and each was made a member of the "Board of
Directors." Roth received $500 a month, which was not
paid to the others. Roth, Jensen, and Walsh, had existing
connections with certain retail dairy outlets in the area,
and they undertook to bung in business to Ewald from
these and other sources. Roth handled the account of
Shoppers City, of which, as noted, the president is his
father. Ewald's drivers regularly made the deliveries of its
products to the existing stores of Shoppers City on the
basis of day-to-day orders. By July 1973, Ewald's sales to
Shoppers City exceeded $125,000 per month, comprising
40 percent of its wholesale volume and 20 percent of its
total revenue. When Ronco was formed by Roth about
March 1971, Hosp leased to Ronco a 1955 or 1956 Ford
truck for $100 per month. The truck had been retired and
fully depreciated on Ewald's records. Because it soon
developed that the truck needed substantial repairs, full
title was passed to Ronco after 1 month's payment, in
conjunction with the further exchange of an old tractor
which Ronco transferred to Ewald. The truck was not used
bound by its admission before the Federal district court . Moreover, the
testimony of Hosp and of Ronco 's driver serve- to support this allegation
' The material evidence is substantially undisputed
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Ronco to transport dairy products. From March 1971,
operating as an independent hauler, Ronco delivered
products to Shoppers City stores, which the latter pur-
chased from Schroeder Dairy, a nonunion company. In
November 1972, Shoppers City opened a new store at
South Robert Street in St. Paul. By verbal agreement
entirely between Ronco and Shoppers City,5 Ronco
commenced, and thereafter continued. to make all deliver-
ies to the new store of dairy products picked up at Ewald's
loading dock. Ewald continued to sell and deliver to the
other stores in Shoppers City, as it did previously. Ewald
billed Shoppers City directly for the products purchased
for the new store, which included a standard charge of 8
percent for hauling, in the same manner as the billing for
its sales to the other stores; as to the new store only the 8-
percent charge, when received, was remitted by Ewald to
Ronco.
Early in 1971, before Ronco actively commenced in its
new business of hauling dairy products, Roth approached
Respondent for the purpose of taking out membership for
himself and his employee and signing a collective-bargain-
ing agreement. He was summarily refused. In November
1972, when Ronco began hauling Ewald products to the
new store of Shoppers City, Ronco and his attorney made
a further effort to secure a contract with Respondent. In
the ensuing discussions, Respondent offered to accept
Ronco as a signatory to an existing standard area contract,
provided that Ronco agreed to the added provisions that
(1) Ronco was to give first opportunity for hire to the
Ewald driver who was serving that geographical area, with
past Ewald seniority recognized; 6 (2) Ronco agreed to
handle only union produced dairy products; and (3)
Shoppers City would buy only union products; i.e., cease
doing business with Schroeder as a nonunion dairy. In
December 1972, Respondent sent Ronco a prepared
contract, with Ronco's name in the heading, which
included item (1) and (2) of the additional terms, above.
Roth signed and mailed to Respondent the following:
Acceptance of Agreement
Date: December 28, 1972
Ronald Roth hereby agrees to abide by the terms and
conditions of the May 1, 1971 through April 30, 1973
Agreement between the Milk Drivers Union, Local No.
546 7 and St. Paul Dairy Employers on all work covered
by said Agreement, subject to the following additions:
1. First opportunity for hire will be given to the
Ewald Brothers Dairy employee who is serving the
geographical area served by Roth.
2. Roth agrees to handle only union produced
dairy products. Receipt of a copy of the Agreement is
hereby acknowledged.
5 Hosp testified that Ewald was in no manner a participant in such
agreement.
6 This provision apparently pertained to any future expanded business
by Ronco, and depended upon the availability of such drivers by reason of
layoff, resignation, or leave of absence from Ewald
/s/ Ronald Roth
Ronald Roth
[Address and telephone number omitted]
Accepted by
Milk Drivers and Dairy Employees Union Local No.
546 and No. 471
In a separate letter confirming a telephone conversation,
Ronco's attorney advised Respondent that Ronco was
unable to agree to the third condition ( item (3) above)
because it has no control over the operation of Shoppers
City; i.e., as to where the latter purchased dairy products.
On January 9, 1973. Respondent notified Ronco by letter
of its rejection of the agreement submitted by Ronco.
Robert E. Moran, secretary-treasurer of Local 471,
testified that he rejected Ronco's "Acceptance of Agree-
ment" because "it merely states two of the main objectives
that we had in a contract with Ronco, and it does not
include the one where he would not handle...." After
stopping in mid-sentence , Moran finally gave as the reason
for rejection that he "had the idea that they would still be
continuing to handle non-union products." Immediately
following its January 9 letter to Ronco, Respondent
verbally notified Ewald that it would have to discontinue
loading Ronco and supplying it with dairy products. At
Ewald's request, Respondent agreed to give Ewald a "little
more time" to attempt to convince Ronco and Shoppers
City to allow Ewald's drivers to supplant Ronco in making
deliveries to the new store of Shoppers City. In early
spring, Hosp asked Moran how Respondent was proceed-
ing on a contract with Ronco. Moran indicated that he was
"too busy" in the negotiations for a new fluid milk contract
and that Hosp should not worry about it.
On July 13, Moran telephoned Hosp, stating that he
heard a rumor Ronco was to start hauling all the dairy
products being sold to Shoppers City. Hosp said he had
heard such a rumor, but nothing had actually changed.
Moran then remarked, "I guess we will have to stop the
son-of-a-bitch." By letter dated July 16, Respondent
notified Ewald that-"Local 471 intends to enforce article
V.Z.A. of the contract concerning the delivery of milk by
union personnel," and that, as of July 21, "the products
being delivered by non-union personnel to Shoppers City
stores shall be discontinued." By phone, Moran told Hosp
that he was being given a final week, until July 21, "to
persuade the Roths that our members should deliver the
milk." Hosp advised Ronald Roth of the communications.
On July 18, Mel Roth notified Ewald that Shoppers City
had "entered into an agreement with Ronco whereby
Ronco will become the exclusive distributor of milk and
milk products for all Shoppers City stores in the metro
area." Such a written agreement, in evidence , was executed
by Ronco and Shoppers City on July 20.
On July 23, Respondent engaged in the conduct to halt
Ewald's loading of Ronco's vehicles, as admitted by
Respondent, supra. While Respondent's agents were on
7 Local 546 covering St Paul and Local 471 covering Minneapolis had
existing area contracts due to expire April 30, 1973 As of December 1972,
both Locals had merged into Local 471 In their negotiations, Local 471
informed Ronco (of St Paul) that it had the option of taking the
outstanding area contract of either local.
MILK DRIVERS LOCAL NO. 471 27
Ewald's premises that day, Hosp asked Moran how the
milk, already bearing the label of Shoppers City, could be
loaded, and what could be done to resolve the matter.
Moran replied that the loading could be done only by
Ewald's employees on its own trucks, and that Ronco
could not be loaded. Hosp then stated, in those circum-
stances he will advise Ronco to remove its trucks; and
Moran stated, in those circumstances Respondent's agents
will leave Ewald's premises. Since July 23, Ewald has not
loaded any Ronco vehicles, and its sales to the stores of
Shoppers City have been drastically curtailed.
At the Federal district court hearing on August 9, Hosp
gave testimony indicating that, among the companies
making purchases at Ewald's dock, Gustafson and Morn-
ing Fresh were nonunion, or not under contract with
Respondent. On August 10, Respondent posted notices at
Ewald instructing its members not to load Gustafson and
Morning Fresh and stating that "Local 471 members shall
deliver all Ewald products." And on August 14, Respon-
dent sent a letter to Ewald that it intends to enjotce article
V.Z.A. of the contract, referring to the pickups by
Gustafson and Morning Fresh at Ewald. Since August 10,
Ewald has ceased loading these companies at its dock.
D. Conclusions
1. Gustafson and Morning Fresh
On and since August 10, Respondent ordered and
instructed employees, supervisors and managers of Ewald
not to load dairy products on vehicles of Gustafson and
Morning Fresh at Ewald's dock, and such orders and
instructions have been effective. The crucial question is
whether an object of such conduct was to force or require
Ewald to cease doing business with Gustafson and
Morning Fresh within the meaning of Section 8(b)(4)(B),
and to force or require Ewald to enter into an agreement
which is prohibited by Section 8(e), within the meaning of
Section 8(b)(4)(A). Respondent defends on the ground that
its primary dispute was with Ewald in that it was seeking to
enforce a work-preservation provision contained in article
V.Z.A. of its contract with Ewald.
Recently, in the Koch cases the Board issued a
comprehensive opinion of the law governing secondary
boycott situations under Section 8(b)(4) where the defense
is rested upon a work preservation objective. As stated
therein, it was never the Board's approach to look "solely
at the pressured employer's `contract right to control' the
work at issue at the time of the pressure to determine
whether the pressure was primary or secondary."
tl Local Union No 438, United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the United States and Canada,
AFL-CIO (George Koch Sons, Inc) 201 NLRB 59
9 ld at 64
LO National Woodwo,tk Manufacturers Association v N LR B, 386 U.S
612, 632 (1967)
11 It has been demonstrated, and is senously questionable , that all
employers under contract with Respondent are included in a multiemployer
bargaining unit, particularly for the purposes of applying the work-
preservation clause in article V Z A For example, it is noted that the form
of contract which Respondent sent in December 1972 to Ronco, as an
independent hauler. clearly would not have embraced Ronco in a
multiemployer unit, and contained no work preservation clause (apart from
Rather, the Board has always proceeded with an
analysis of (1) whether under all the surrounding
circumstances the union's objective was work preserva-
tion and then (2) whether the pressures exerted were
directed at the right person, i.e., at the primary in the
dispute. . . . In following this approach, however, our
analysis has not nor will it ever be a mechanical one,
and, in addition to determining, under all the surround-
ing circumstances, whether the union's objective is
solely work preservation, we have studied and shall
continue to study not only the situation the pressured
employer finds himself in but also how he came to be in
that situation... 9
Here it is evident that the pressured employer is Ewald.
And the essential question whether Respondent's true
objective is work preservation is critically revealed by the
fact that Ewald's employees never had the work, of
delivering Ewald's products from its dock to the locations
of Gustafson or Morning Fresh. Thus, there is no
justifiable basis for Respondent to claim such work. Ewald
was incapable of acceding to Respondent's pressures other
than to cease doing business with Gustafson and Morning
Fresh, which indeed has been the result. Under all the
surrounding circumstances, it is entirely plain that Respon-
dent's conduct on and after August 10 was "tactically
calculated to satisfy union objectives elsewhere," 10 specifi-
cally as will be shown below. My findings are that the
pressures were not directed at the right persons, the
primary employers, e.g., Gustafson and Morning Fresh,
and that Ewald was a neutral employer in the dispute.
Respondent argues in the following vein: The bargaining
unit includes the employees of all employers who are
signatories to the contract.i i To permit nonunit personnel
to pick up at Ewald's dock clearly deprives the bargaining
unit of work. Morning Fresh, located in the Minneapolis
area, services the same markets for Ewald's products that
are being serviced by Ewald's drivers. While Gustafson
operates in Wisconsin and does not compete directly with
drivers from the bargaining unit, the work preservation
clause prohibits "non-unit personnel of all types" from
picking up products directly at Ewald's processing plant. I
can perceive no substance or merit in this entire position of
Respondent. Indeed, the very argument suggests that
Respondent is construing the contract in question to create
the effect of a pervasive "hot cargo" restriction against all
signatory employers doing business with any nonsignatory
employers transporting union produced dairy products
within Respondent's jurisdiction. 12
The pertinent clause, in article V.Z.A., reads:
a commitment to handle only "union produced dairy products")
I-' See N L R B v Joint Counsel of Teamsters No. 38, Teamsters Union
Local No 87, ei al., [Arden Farms Co, et al.], 338 F.2d 23, 28 (C.A 9, 1964),
wherein the court aptly analyzed a similar argument, viz.
Respondents seem to argue that section I of article 5 falls within the
exception to section 8(e) because it preserves the job opportunities of
employees within the multi-employer bargaining unit by prohibiting
subcontracting to any employer outside that unit . But if this argument
were accepted. the exception to section 8(e) would permit precisely
what the section itself was intended to prohibit- an agreement by an
employer to boycott another unless the latter entered into a union
contract [The contract clause] thus involves signatory employer-
(Continued)
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vending Machines, etc.: All dairy products sold or
delivered to persons, firms, corporations, stations,
vending machines, or vendors, including outlets operat-
ed by Employers as cash and carry milk stores, for
resale , shall be handled, processed and delivered by
regular employees of the company, subject to the
provisions of this Agreement. Emergency pickups
excepted where regular deliveries are being maintained
by the employees.
The clause is ambiguous, and I believe deliberately so.i3
Unless it was intended by all parties as an unlawful "hot
cargo" provision, which cannot be presumed, it may he
reasonably construed to mean that the "regular employees
of the company," i.e.. of a particular employer, shall handle
and deliver all dairy products sold or delivered to the
various customers of such company signatory to the
contract. As shown in the evidence, the business of Ewald
with numerous companies at the site of Ewald's dock
entailed the elements of both the sale and delivery carried
out by Ewald's employees as a completed transaction.
There is no requirement, except as interpreted by Respon-
dent, that these customers at the dock must be under
contract with Respondent. On and since August 10,
Respondent forcibly applied article V.Z.A. to preclude
Ewald from making sales at its dock to nonsignatory
customers; e.g.. Gustafson and Morning Fresh, while
permitting such business with signatory customers.
General Counsel has not alleged that article V.Z.A. per se
is in violation of Section 8(e). On this count, the theory of
the complaint is that Respondent violated Section
8(b)(4)(A) by forcing or requiring Ewald "to enter into" an
agreement prohibited by Section 8(e). The underlying
contention is that Respondent engaged in conduct as
defined in Section 8(b)(4) and (i)(ii) with an object of
compelling Ewald to construe, adopt and give effect to
article V.Z.A. as an agreement such as proscribed by
Section 8(e).14
Article V.Z.A. cannot be read in a vacuum. In determin-
ing Respondent's true objective in pursuing article V.Z.A.
as justification for its conduct concerning Gustafson and
Morning Fresh, it is appropriate to consider as a factor
Respondent's representations regarding the effect of this
clause.15 Consideration has thus been given to Respon-
dept's arguments, above. Union Agent Moran testified
that, when he wrote Ewald on August 14 that article V.Z.A.
will be enforced in halting dock deliveries to Gustafson
and Morning Fresh, the tenor of his letter was an
instruction to Ewald "not to let any non-union drivers"
pick up dairy products at the Ewald dock. In his testimony,
producers directly and decisively in the union 's dispute with existing
non-signatory distributors.
19 Hosp testified that , in the 1973 negotiations , a committee of the Milk
Dealers was unsuccessful in attempting to obtain a clarification of this
clause from Local 471.
14 See Puget Sound District Council. Lumber & Sawmill Workers, United
Brotherhood of Carpenters and Joiners of America , AFL-CIO ( United States
Plywood Corporation), 153 NLRB 547. fn I
15 Sec N L R B. v Milk Drivers ' Union laical No 753, International
Brotherhood of Teamsters. etc (Korth Transportation Company), 392 F 2d 845,
847 (C A. 7, 1968): Teamsters Chauffeurs, Warehousemen & Helpers Local
Union No 631, International Brotherhood of Teamsters , etc (Reynolds
Electrical and Engineering Co, inc ), 154 N LRB 67, 68.
IC International Brotherhood of Teamsters, Chauffeurs. Warehousemen and
Moran stated Respondent's interpretation of article V.Z.A.
as requiring Ewald to sell at its dock only to companies
who are signatory to the contract with Local 471 (i.e.,
whose drivers must be members of Respondent). He
agreed that, at the time products are picked up by
companies at Ewald's dock they are sold by Ewald, and
that the employees of nonsignatory companies would not
come under article V.Z.A. However, he explained that,
when the drivers for the dock customers are members of
Local 471, the pickups are permitted because these drivers
will in the future be paid a commission by their employers
on the resale of Ewald's products. Quite apparently this
type of distinction derives no legal sanction from the terms
of article V.Z.A. Considering as well the evidence as to
Ronco, reviewed below, it must be concluded that
Respondent is compelling Ewald to adopt and implement a
construction of this clause as to render the performance
thereunder prohibited within Section 8(e) of the Act.16
Thus, in pursuing such a course, it is evident that
Respondent's primary objective is not to preserve properly
claimable work for the employees of Ewald, the pressured
employer, but enhance its institutional interests, or to
benefit and enclose the field of dairy transportation for
Local 471's members generally in the Minneapolis-St. Paul
area.17 Accordingly, I find, as to Respondent's conduct on
and after August 10 affecting dock deliveries to Gustafson
and Morning Fresh, that it violated Section 8(b)(4)(i) and
(ii)(A) and (B) of the Act.
2. Ronco
The same 8(e) objective is well revealed in Respondent's
attitude and conduct toward Ronco throughout. Roth of
Ronco sought to operate as a union hauler. from the outset.
He was flatly rejected on his first approach to Respondent
early in 1971. Because of Roth's known connection with
Shoppers City stores through his father, there was some
appearance of concern by Respondent that he would take
away from Ewald's drivers the delivery functions to these
stores. In December 1972, during Respondent's negotia-
tions with Ronco-Ewald was approached by Respondent
and agreed that, if Ewald's drivers left to go with Ronco,
Ewald would grant them a leave of absence and assure
their reemployment within a given time. And, in the
negotiations, Ronco accepted Respondent's special condi-
tions, as worded, that it would give the first opportunity for
hire to Ewald's drivers, and it would handle only "union
produced dairy products,"-the latter meaning that it
would give up hauling Schroeder's products. Significantly,
even this capitulation was not sufficient for Respondent. It
Helpers of America, Local 294 (Island Dock Lumber, Inc) 145 N. LRB 484,
enfd 342 F 2d 18 (C A. 2. 1965).
17 E g.. Local Union No 141 of the Sheet Metal Workers' International
Association, el al, (Cincinnati Sheet Metal & Roofing Company AIK/A Alar
Company), 174 NLRB 843, enfd 425 F.2d 730 (C A 6, 1970), Orange Belt
District Council of Painters No 48, AFl.-CIO (Calhoun Drywall Company),
153 NLRB 1196, enfd 365 F 2d 540 (C A D C. 1966), N LR B v Milk
Drivers' Union Local 753 , International Brotherhood of Teamsters, etc (Korth
Transportation Company), 393 F.2d 845 (C A. 7, 1968 ). enfg. 159 NLRB
1459, Milk Wagon Drivers and Creamery Workers Local Union No 66, etc,
International Brotherhood of Teamsters, etc.. (Carnation Company), 181
NLRB 882. Brotherhood of Painters, Decorators and Paperhangers of
America, Lot al Union No 823, AFL-C1O (Malone Paint Service), 161 NLRB
620.
MILK DRIVERS LOCAL NO 471
insisted that Shoppers City cease doing business with
nonunion dairies, e.g ., Schroeder . This further condition
was declined by Ronco as not within its power . Thereupon,
in January 1973, Respondent instructed Ewald not to load
Ronco's trucks. Urged by Ewald , Respondent agreed to
withhold action on this instruction for a "little more time."
It is noteworthy that, after being rejected again, Ronco
continued to haul Ewald 's products (from its dock) only to
the new store of Shoppers City. Such work was never
performed by Ewald 's drivers.
On July 13, Respondent informed Ewald that it would
have to stop Ronco , and by letter of July 16, it gave Ewald
until Friday, July 21, to attempt to resolve the matter to
Respondent 's satisfaction . Then on July 23 , Respondent
effectively stopped Ewald 's loading of Ronco's vehicles. In
Respondent 's July 13 discussion with Ewald, mention was
made of a rumor that Ronco would take over Ew-ald's
deliveries to all Shoppers City stores . It is clear , however,
that Respondent had much earlier decided to halt Ewald's
loading of Ronco, even though only Ewald 's products
being delivered to the new store of Shoppers City would be
affected . It was not until July 18 that Ronco obtained an
agreement , executed on July 20, to operate as the exclusive
distributor of dairy products for all Shoppers City stores. I
do not find that this agreement , or even the earlier rumor
of its existence , precipitated Respondent 's action against
Ronco on and after July 23. From all these events, it is
inferable that the distributorship agreement was a conse-
quence of Respondent 's consistent rejection of all Ronco's
reasonable efforts to be accepted by Respondent in a
collective-bargaining contract . So far as appears, Ronco
never actually operated under the distributorship agree-
ment with respect to Ewald 's products.
Ronco's deliveries to the new store could not be claimed
by Respondent as the traditional or previously performed
work of Ewald's employees legitimately within the preser-
vation clause in article V.Z.A.18 As amply demonstrated,
Respondent 's conduct toward Ewald as affecting Ronco's
business warrants the finding that Respondent 's principal
objective , as in the situations regarding Gustafson and
Morning Fresh, supra, -is to force and require Ewald to
enter into an agreement prohibited by Section 8(e), and to
benefit Respondent's members generally, rather than to
preserve the work for Ewald 's employees.
The remaining question is whether Ewald is a neutral vis-
a-vis Ronco. I find no probative evidence as would justify
a finding of "collusion" between Hosp and Ronald Roth
aimed at permitting Ewald to avoid its obligations, i.e.,
under article V .Z.A. of its collective-bargaining contract
with Respondent . It seems entirely implausible that Ewald
would so deliberately conspire , apparently against its own
business interests , to turn over work done by its own
is Cf American Boiler Manufacturing Association v N L R B, 404 F.2d
547, 552, (C.A 8. 1968), in which the court held only "that the term
'traditional work ' includes work which unit employees had performed and
are still performing at the time they negotiated a work-preservation clause "
19 Cf Minnesota Milk Company v N L R B [Milk Drivers and Dairy
Employees' Union, Local No 546, International Brotherhood of Teamsters,
etc J, 314 F 2d 761 (C A 8. 1963)
29
employees to Ronco. Looking at the actual evidence cited
by Respondent. the most significant factors are Ronald
Roth's membership on Ewald's board of directors and
stock ownership. There is testimony that few, if any,
meetings of the board were held. Hosp has beneficial
ownership of 22 of the 25 shares of stock. Jensen and
Walsh were also made board members at the same time,
dating back to early 1971. Hosp's purpose in selling each of
these three individuals one share of stock and placing them
on the board was to help him generate needed business
from their own special accounts. Roth received a monthly
salary of $500 which, as testified, was unrelated to his own
business at Ronco. He had Shoppers City-which was
potentially, and did develop into, a large account. The
other factors relied on by Respondent are lacking in
probity, or are relatively inconsequential on the question of
"collusion." For example, Hosp's leasing and sale of an old
truck to Roth, of which much has been said, was based on
a full quid pro quo. And Ewald's billing Shoppers City for
deliveries to the new store and remitting the payment to
Ronco was a bookkeeping convenience utilized at the
request of Ewald. All this does not establish or reasonably
imply that Roth or Ronco had any influence over Ewald's
management policies or operational methods, or vice versa.
These links with Ewald were explained by Hosp as relating
only to Roth's promotional function. From the outset,
Roth d/b/a Ronco was operating as a nonunion hauler of
dairy products to Shoppers City stores, then or later
becoming the source of his labor dispute with Respondent.
It is not contended that he was an employee of Ewald in
his dealings with Shoppers City, nor could such a finding
be made on the evidence.is
It has been reiterated in numerous 8(b)(4) cases that a
secondary employer, to merit the Act's protection, must be
a neutral and truly an "unoffending" employer in the
particular dispute involved.20 Here, in relation to Respon-
dent's broad 8(e) objectives, it is sufficiently clear that
Ewald is an unoffending employer.
The required neutrality under Section 8(b)(4) has never
been construed as narrow and literal. Distinctions were
drawn from the time this section was enacted. For
example, an employer who receives farmed-out work from
a struck employer is an "ally" and not truly a neutral.21 Or
in another context, it was held that a secondary employer
impaired its neutrality, inter alia, by seeking out a
subcontract or license to perform a product function which
it knew would cause it to breach its collective-bargaining
contract with the respondent union. 22 In other cases, the
showing of some managerial link or association between
the primary and the secondary employer was held
insufficient to deprive the secondary of the Act's protec-
2" E.g, the Koch case, supra, , 201 NLRB 59, at 64
' NLR.B v Business Machine and Office Appliance Mechanics
Conference Board Local 4-59, International Union of Electrical, Radio &
Machine Workers, CIO [Royal Typewriter Co 1, 228 F 2d 553 (C.A. 2).
22 Painters District Council No. 20, of Westchester and Putnam Counties
New York, Brotherhood of Painters, Decorators, and Paperhangers of America,
AFL-CIO (Uni-Coat Sprav Paint, Inc ), 185 NLRB 930.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion.23 In Poole's Warehousing, Inc.,24 a lead case, the
8(b)(4) violation was found notwithstanding that the
primary and secondary employers were commonly owned,
with common officers and directors. Based upon Board
and court decisions therein described, it was stated that the
following criteria must be established before one of two
commonly owned companies will be held not to be entitled
to the protection of the Act:
Common ownership is not sufficient. There must be in
addition such actual or active common control, as
distinguished from merely a potential, as to denote an
appreciable integration of operations and management
policies.
The evidence here falls considerably short of meeting this
test as to Ronco and Ewald. As I find, both companies are
separate entities , without common ownership or active
common control, and Ewald is a neutral to Ronco's labor
dispute with Respondent.25
Upon all of the foregoing, it is concluded, as to its
conduct relating to Ronco, that Respondent violated
Section 8(b)(4)(i)(ii)(A) and (B) of the Act, substantially as
alleged by the General Counsel.26
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By inducing and encouraging employees of Ewald to
refuse to perform services for Ewald, and by threatening,
coercing, and restraining Ewald, with an object of forcing
and requiring Ewald to enter into an agreement which is
prohibited by Section 8(e) of the Act, whereby Ewald
ceases doing business with any person not having a
collective-bargaining agreement with Respondent, specifi-
cally including Ronco, Gustafson, and Morning Fresh,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(b)(4)(i) and (ii)(A) of the Act.
4. By inducing or encouraging employees of Ewald to
refuse to perform services for Ewald, and by threatening,
coercing, or restraining Ewald, with an object of forcing or
requiring Ewald to cease doing business with Ronco,
Shoppers City, Gustafson, and Morning Fresh, Respon-
dent has engaged in unfair labor practices within the
meaning of Section 8(b)(4)(i) and (ii)(B) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the cases, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Ewald Bros. Inc. is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Sections 2(6) and (7) and 8(b)(4) of
the Act.
23 E g , N L R. B v. Denver Building and Construction Trades Council
[Gould & Preisner ]. 341 U S 675, 692 ( involving a general contractor and
subcontractor on the same construction project where the general
contractor had some supervision over the subcontractor's work), similarly,
Local 82.5, International Union of Operating Engineers, AFL-CIO (Morin
Erection Co, Inc), 168 NLRB 1, 3.
24 Drivers, Chauffeurs and Helpers Local No 639, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 158
NLRB 1281
25 See, e.g , Grain Elevator Flour and Feed Mill WorAers International
Longshoremen Association, Local 418, AFL-CIO (Continental Grain Compa-
ny), 155 NLRB 402, 403-405, Milk Drivers and Dairy Employees Local Union
No 584 International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Old Dutch Farms, Inc), 146 NLRB 509, 516, cf..
Local 559, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers ofAmerica (Atlantic Pipe Corporation), 172 NLRB 268, 272
26 The complaint alleges as a tertian' object of Respondent's conduct the
ORDER27
Respondent, Milk Drivers and Dairy Employees Union
Local No. 471, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, of Minneapolis, Minnesota, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Inducing or encouraging any individual employed by
Ewald Bros. inc., or any other person engaged in
commerce or in an industry affecting commerce, to engage
in a strike or a refusal in the course of his 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 Ewald, or any other person engaged in
commerce or in an industry affecting commerce-where in
either case an object thereof is to force or require Ewald or
any other person to enter into an agreement, express or
implied, which is prohibited by an 8(e) of the Act, whereby
Ewald or such other person ceases doing business with any
forcing or requiring of Shoppers City to cease doing business with Ronco
This contention is apparently based upon the existence of an exclusisse
distributorship agreement between Ronco and Shoppers City as of July 23,
when Respondent undertook its forcing actions. I lowever, as I have found.
Respondent's decision was earlier made and would have been implemented
at this time wholly apart from the distributorship agreement, which was
never actually operative in Ronco's dealings with Ewald Moreover, in the
described circumstances, it is unrealistic that such "cease doing business" is
an object or possible effect of Respondent 's conduct, as Roth of Ronco and
Shoppers City are too closely intertwined by family and other relationships
Therefore it is not held that this aspect of the complaint is sustained
27 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings , conclusions, and order , and all objections thereto shall he
deemed waived for all purposes
MILK DRIVERS LOCAL NO. 471 31
person not having a collective-bargaining agreement with
Respondent or whose employees are not members of
Respondent, including Ronald Roth d/b/a Ronco Deliver-
y, Gustafson Ice Cream and Dairy Co., and Morning Fresh
Dairy; or to force or require Ewald or any other person to
cease doing business with Ronco, Gustafson, Morning
Fresh, or Zayre Shoppers' City.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Notify Ewald and the Minneapolis and St. Paul Milk
dealers that it will not force or require or insist upon an
interpretation of article V.Z.A. of the collective-bargaining
agreement entered into by Respondent and the Milk
Dealers effective May 1, 1973, as to limit the dairy
employers with whom they could do business only to those
employers who are signatory to such agreement or who
employ members of Respondent.
(b) Post in conspicuous places, in all Respondent's
business offices, meeting halls, and all places where notices
to members are customarily posted, copies of the attached
notice marked "Appendix." 2s Copies of said notice, on
forms provided by the Regional Director for Region 18,
shall, after having been duly signed by Respondent's
authorized representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days. Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(c) Sign and mail sufficient copies of said notice to the
aforesaid Regional Director for forwarding to Ewald and
the Milk dealers and, if they are willing, for posting by
Ewald, or employers signatory to the aforesaid collective-
bargaining agreement, in all locations where notices to
employees are customarily posted.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
employed by Ewald Bros. Inc., or by any other person,
to engage in a strike or a refusal in the course of his
employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles,
materials, or commodities, or to perform any services;
or threaten, coerce or restrain Ewald, or any other
person,-where in either case an object thereof is to
force or require Ewald or any other person to enter into
an agreement, express or implied, which is prohibited
by Section 8(e) of the Act, whereby Ewald or such
other person ceases doing business with any person not
having a collective-bargaining agreement with Local
471, or whose employees are not members of Local 471,
including Ronald Roth d/b/a Ronco Delivery, Gustaf-
son Ice Cream and Dairy Co., and Morning Fresh
Dairy; or to force or require Ewald or any other person
to cease doing business with Ronco, Gustafson,
Morning Fresh, or Zayre Shoppers' City.
WE WILL notify Ewald and the Minneapolis and St.
Paul Milk dealers that we will not force or require or
insist upon an interpretation of article V.Z.A. of the
collective-bargaining agreement entered into by Local
471 and the Milk Dealers effective May 1, 1973, as to
limit the dairy employers with whom they could do
business only to those employers who are signatory to
such agreement or who employ members of Local 471.
2s In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF rHE
NA:IIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL Nor induce or encourage any individual
Dated By
MILK DRIVERS AND DAIRY
EMPLOYEES UNION LOCAL
No. 471 AFFILIATED WITH
THE INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 316 Federal Building, 110
South 4th Street, Minneapolis, Minnesota 55401, Tele-
phone 612-725-2611.