Milk Drivers Union, Local No. 753

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1459 (N.L.R.B. 1966)

MILK DRIVERS UNION, LOCAL NO. 753 1459
4. By the foregoing, and by other acts and conduct interfering with, restraining,
and coercing employees in the exercise of their rights guaranteed in Section 7 of
the Act, Respondents engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
5 The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Milk Drivers Union , Local No. 753, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
and Associated Milk Dealers , Inc., and various of its member
dairies 1 and Korth Transportation , Charging Party and Pure
Milk Association, Party in Interest . Cases 13-CE-28 and 30.
June 27, 1966
DECISION AND ORDER
On January 11, 1966, Trial Examiner Harold X. Summers issued
his Decision in the above-entitled proceeding, finding that the
Respondent Employers and the Respondent Union had engaged in
certain unfair labor practices and recommending that they cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter, the Respond-
ent Union filed exceptions to the Trial Examiner's Decision and a
supporting brief, the General Counsel and the Charging Party filed
cross-exceptions and briefs in reply , to the Respondent Union's
exceptions, and the Respondent Union filed an answering brief.2 --
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are herby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
[The Board adopted the Trial Examiner's Recommended Order.]
I The names of the Employer-Members of Associated Milk Dealers, Inc , herein referred
to as the Respondent Employers , are listed in Appendix A attached to the Trial Examiner's
Decision.
3 The Board hereby denies the Respondent Union's request for oral argument as the
record, exceptions , and briefs adequately present the issues and positions of the parties
3In view of our affirmance of the Trial Examiner's findings herein, we deem it unneces-
sary to pass on certain alternative theories discussed by the Trial Examiner by way of
dicta . Cf. Milk Drivers' Union, Local 753, IBTCWHA (Sidney Wanner & Sona, Inc.), 141
NLRB 1237, 1240-41.
159 NLRB No. 128.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
Pursuant to notice , this case originally went to hearing at Chicago , Illinois, on
November 4, 5, and 6 , 1964, before Trial Examiner Harold X . Summers, upon the
amended complaint in Case 13-CE-281 issued by the General Counsel of the
National Labor Relations Board , herein called the Board , alleging that Milk Drivers
Union , Local No. 573, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (herein called Respondent Union or Local
753) had been and was engaging in unfair labor practices within the meaning of
Section 8 (e) of the National Labor Relations Act, herein called the Act.2 (Re-
spondent Union's answer to this amended complaint had admitted certain of its
allegations , had denied a number of others, had disclaimed information or belief
as to still others, and had affirmatively pleaded; in effect, it had denied the com-
mission of any unfair labor practices . At the outset of the hearing , on the plead-
ings as they then existed , the General Counsel was granted leave to amend the
amended complaint in a number of aspects , and Respondent Union's answer thereto
maintained its denial of the commission of any unfair labor practices .) Thereafter,
a complaint in Case 13-CE-30 3 was issued by the General Counsel , alleging that
Respondent Union, Associated Milk Dealers , Inc. (herein called Respondent Asso-
ciation or , simply, the Association ), and the member dairies of the Association
whose names appear in Appendix A hereto (each herein referred to as a Respond-
ent Dairy or by a shortened version of its formal name ) 4 had been and were engag-
ing in unfair labor practices within the meaning of Section 8(e) of the Act. (The
Respondents ' answers met the allegations of this complaint in various ways; in
effect, each of them denied the commission of any unfair labor practices .) By tele-
graphic order of November 27, 1964, I granted the General Counsel's motion to con-
solidate the hearings on the complaints in Cases 13-CE-28 and 13-CE-30,5 and,
thereafter , the resumed hearing concerned itself with both cases .6 The hearing, in
all, consumed 17 hearing days between November 4, 1964, and March 5, 1965, in-
clusive. All parties were afforded full opportunity to examine and cross examine
witnesses, to argue orally, and to submit briefs. Briefs filed by the General Counsel,
by the Charging Party, by Respondent Union and (jointly) by Respondent Associa-
tion, all but two Respondent Dairies, and Party in Interest PMA have been fully
considered.?
1 The amended complaint was issued October 15, 1964. The unfair labor practice charge
initiating the proceeding was filed June 22, 1964, and the original complaint thereon was
issued on August 24, 1964.
s "It shall be an unfair labor practice for any labor organization . . to enter into any
contract or agreement, expressed or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from handling , using, selling , transporting or otherwise dealing
in any of the products of any other employer, or to cease doing business with any other
(employer) . .. .
sThis complaint was issued on November 16, 1964. The charge initiating this proceed-
ing was filed on the same day.
4 Respondent Association and each Respondent Dairy had been named as parties in
interest in the complaint in Case 13-CE-28, and , except for the Respondent Borden
Dairy, had filed appearances as such at the hearing already in progress. In addition,
Pure Milk Association (herein referred to as PMA) had been granted leave to intervene
therein as a party in interest
5 The same telegraphic order denied Respondent Union's motion to dismiss the complaint
in Case 13-CE, -28, which motion had been based on the nonjoinder of the Association and
its member dairies as respondents.
6 Local 753 had already filed its appearance as a respondent in the hearing on the 13-
CE-28 complaint Now, the Association and the dairies named as respondents in the
13-CE-30 complaint-all of whom, except for Borden, had previously entered appearances
as parties in interest-entered appearances as respondents. PMA, previously granted
leave to intervene as a party in interest in the 13-CE-28 proceeding, was granted leave
to intervene as a party in interest in the consolidated proceeding.
7A brief was filed by Respondent Hawthorn-Mellody Dairy after the deadline for filing
briefs had passed. No brief was filed by Respondent Borden Dairy
MILK DRIVERS UNION, LOCAL NO. 753 1461
Upon the entire record 8 in the case, including my evaluation of the reliability
of the witnesses based upon the evidence and my observation of their demeanor, I
make the following:
FINDINGS OF FACT
1. THE ISSUES
The General Counsel contends that Respondent Union on the one hand, and
Respondent Association and Respondent Dairies to the other, by entering into and
continuing to maintain in effect contracts containing provisions which (1) require
the signatory dealers to employ members of Local 753 to operate the dealers' trans-
portation equipment and (2) specify that employees of the respective dairies may
refuse to work at a plant to or from which milk or dairy products are being deliv-
ered by persons who are not currently or potentially members of Local 753, have
been and are violating Section 8(e) of the Act.
The fist bone of contention between the parties has to do with the clarity of
the language used in the contractual provisions under attack. Are the provisions
unambiguous; and, if so, what is their legal purport? Or are they so ambiguous
as to require a scrutiny of extraneous circumstances to find their meaning)
Assuming (but not necessarily conceding) ambiguity, counsel for the General
Counsel argues, first, that the offending clauses, articles 43-B and 45,9 do not merely
constitute-as urged by Respondent Union-a ban on the subcontracting of the
hauling of milk to outsiders: the words themselves do not create such a ban;
Respondent Union has never explained it as such; and the contracting parties did
not take it as such. In effect, the General Counsel's theory continues, 43-B requires
that hauling of milk be done by members of Local 753. Further, the General
Counsel (in effect, conceding that a ban on subcontracting an area of work would
not be unlawful per se)argues that, even if this be considered a ban on subcontract-
ing milkhauling, the motivation and objective of Respondent Union in insisting
on the ban was its desire to increase its own membership and its members' work
opportunities, either (1) by the extension of the Local's coverage to the employees
of milkhaulers not now under contract with Respondent Union, (2) by the transfer
of the business of such haulers to haulers who are under contract with Local 753,
or (3) by the elimination of hauling for signatory dairies by any haulers, in favor
of hauling by dairies who are signatory to contracts with Local 753. Thus, the
argument continues, we have the "hot cargo" aspect toward which Section 8(e)
is directed.
The General Counsel also urges, as violations of Section 8(e) by Respondent
Union, acts of specified Local 753 representatives in seeking to enforce and to
give effect to the contractual requirements in question and in demanding compliance
therewith on the part of various dairies.
Respondent Union insists that the contractual requirements called into question
constitute, and were known by all parties to constitute, a prohibition against sub-
contracting the hauling of milk; that the prohibition was designed solely to protect
the work area in which the employees of the bargaining unit represented by Re-
spondent Union performed; and, finally, that it was the product of considered
negotiations between parties to a lawful bargaining relationship.
Respondent Association and Respondent Dairies, in effect, agree with the Gen-
s Motions to correct the transcript were filed by the General Counsel and by the Charg-
ing Party on June 16 and July 2, 1965, respectively. On July 9, 1965, I issued an order
to show cause why the transcript of bearing should not be corrected in specified respects,
the proposed corrections in which order accorded In some respects but not in others with
the corrections sought by the motions. No good cause to the contrary having been shown,
the corrections Indicated in the order to show cause ( which Is received in evidence as
Trial Examiner 's Exhibit 1 ) are hereby ordered made . The motions to correct are hereby
granted to the extent that they seek corrections which have been made by this order; in
all other respects, they are denied
9 See Appendix D hereto. The General Counsel treats the two clauses , in combination,
as creating the allegedly unlawful requirement ; at the hearing , the parties often referred
to the combination as "43-B" or "the 43-B requirement " and, except where a contrary
meaning is specifically indicated , one of these terms will be used herein to refer to that
combination.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel that the contract clauses are violative of Section 8(e), only defending
their own involvement on the "equitable" ground that they entered into the con-
tracts under compulsion.10
The issues created by the positions above described along with numerous side
issues arising therefrom, aie discussed at appropriate places hereinbelow.
II. EMPLOYERS AND PERSONS
Each of the 32 Respondent Dairies is engaged, at an installation or at installa-
tions located within the State of Illinois, in a phase of the dairy business. Twenty-
four are Illinois corporations,ii three are corporations of other or unknown States,rz
three are divisions of corporations,13 and two are family-owned partnerships.14 The
32 sell milk and dairy products at wholesale and/or retail, and all but 415 also
process or manufacture milk and dairy products.iG During either the calendar year
1963 or the last fiscal year preceding November 16, 1964, all but 1 17 of the 32 did
a gross volume of business in excess of $500,000; that one sold and distributed milk
and dairy products valued at in excess of $50,000 to, among others, an enterprise
which itself annually shipped goods of a value in excess of $50.000 across State
lines; and all but that one received milk and dairy products valued at in excess of
'$50,000, either directly or indirectly, from outside the State of Illinois
Each of the Respondent Dairies is an employer engaged in commerce within the
meaning of the Act.
Respondent Association is, and has been at all times material herein, an Illinois
corporation with its principal office located at Chicago, Illinois. Its function,
among others, is to bargain collectively on behalf of enterprises engaged in the
business, in and around Chicago, of processing, selling, and/or distributing milk and
related dairy products. On or about May 7, 1964, a date falling within or about
the period during which the labor practices with which this case is concerned are
alleged to have occurred, the Association was composed of 36 member dairies,
including the 32 dairies named as Respondents herein. As noted earlier, the
Respondent dairies, among other things, sold milk and other dairy products at
wholesale; each year, in the course of their operations, they did a total gross vol-
ume of business in excess of $500,000, and together they received milk and dairy
products valued at in excess of $50,000 from across State lines; and, in addition,
as has earlier been found, each of these 32 dairies is an employer engaged in
commerce within the meaning of the Act.
Respondent Association is an employer within the meaning of the Act.
The Charging Party, Korth Transportation (herein called Korth), is, and at all
material times has been, a Wisconsin-based enterprise engaged in the business of
hauling milk by tank truck from points within the State of Wisconsin to within-
Illinois installations of dairies; Hugh Miller and Sons Milk Hauling, Inc. (herein
called Hugh Miller), Rudy Schroeder and Son (herein called Schroeder), Wm.
O'Donnell, Inc. (herein called O'Donnell), and Quality Carriers, Inc. (herein called
Quality), likewise are Wisconsin-based enterprises engaged in the same business;
10 Counsel for Borden Dairy, in addition, pointed out that his client had given no effect
to 43-B.
"Batavia, Beatrice, Cremix, Dean, Elgin, Elmhurst-Cloverleaf, Hamilton, Hedlin's,
Honey Hill, Hunding, Kraml, Ludwig, Mid-City, Modern, Ogden, Pinecrest Mar-Vel, Pure
Farm, Pioneer, Reuters, Seeley, Special Products, Wanzer, Western-United, and Willow
Farms.
12 Borden, New Jersey ; Rodewald, Delaware ; and Bowman, State of Incorporation un-
specified in this record.
13 Country's Delight, division of certified Grocers of Illinois, Inc. ; Hawthorn-Mellody,
division of Hawthorn-Mellody, Inc, a Delaware corporation ; and Meadowmoor, division
.of Scot Lad Food, Inc.
14 Downers Grove Cloverleaf and Robinson, the names of whose partners do not appear
in this record.
1G Hedlin's ; Honey Hill, sales outlet for Elgin ; Hunding, which stopped processing milk
In June of 1964; and Pioneer.
16 This aspect of this finding is based upon allegations and admissions in the pleadings,
although some of the testimony herein and descriptive material contained In one of the
exhibits received in evidence indicates that at least one of these four respondents-
Hedlin's-processes or manufactures milk or dairy products. For the purposes of this case,
the variance is immaterial.
17 Batavia.
MILK DRIVERS UNION, LOCAL NO. 753 1463
and F. & K. Milk Service (herein called F. & K.) is an Illinois-based enterprise
also engaged in the business of hauling milk from points in Wisconsin to points in
Illinois.
Korth, Hugh Miller, Schroeder, O'Donnell, Quality, and F. & K. are all persons
within the meaning of the term as used in Section 8 (e) of the Act.
PMA and Wisconsin Dairies Cooperative (herein called Wisconsin Coop) are
enterprises engaged, among other things, in the procurement of dairy products from
Wisconsin sources for or on behalf of Illinois-based dairies and in the arranging
for delivery thereof. (Specifically, PMA, a cooperative acting as agent for 12,000
Illinois, Wisconsin, and Indiana farmers, itself buys and sells raw milk. In addi-
tion, it operates several plants in and about Chicago which bottle milk for sale to
%endors and several processing/manufacturing plants in Wisconsin.) PMA and
Wisconsin Coop are persons within the meaning of the term as used in Section
8(e) of the Act.
III. THE UNION
Local 753 represents, for collective-bargaining purposes, certain employees of
employers in the dairy industry. The employees, generally speaking, are those
whose duties involve or relate to the operation of vehicles used in the transporting
of milk and milk products; specifically, they drive "van" trucks, which carry milk
products in bottles or other containei units, and/or "tank" trucks, which carry
dairy fluids in bulk. The geographical area which Local 753 covers, all within the
State of Illinois, consists of Cook County (in which the city of Chicago is located),
all of adjoining DuPage County except for a small section thereof, and a small
contiguous section of Lake County. The Local's asserted work jurisdiction applies
to all transportation operations housed or garaged within this geographical area,
including all extensions of such operations to points outside the area; on the other
hand, it does not purport to cover like operations housed or garaged outside this
area even though they may extend into the area.
Local 753 is a labor organization within the meaning of the Act.
On the basis of the pleadings and the testimony in this record, I find that William
McNulty, Local 753's president, Carl Feigner, its vice president, Thomas J. Hag-
gerty, secretary-treasurer, Anthony Christiano, recording secretary, and Francis X.
Gorney, Robert Turner, and John Wolinsky, trustees, are agents of Respondent
Union.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and setting
The employers in the Chicago milk industry-and this all-inclusive group will
sometimes be referred to herein as the "dealers" or "milk dealers"-take several
forms- the dairies, who (1) process and manufacture milk or dairy products, (2)
sell and distribute processed milk and dairy products, normally at both wholesale
and retail, or (3) perform both these functions; the master vendors, who purchase
milk and daisy products from dairies, and who, each maintaining two or more
"routes," sell and distribute milk through route salesmen and other necessary em-
ployees; and the independent haulers, who, based at and working out of installations
within Local 753's jurisdiction, furnishing their own equipment and using their
own employees, haul raw milk, processed milk, or dairy products to or from the
Chicago installations of one or more of the dairies here involved. The size of these
groups varies from year to year, but, within the most recent period relevant herein,
they have numbered approximately 45, more or lesss, 80 to 90, and approximately
11, respectively.
(In addition-and the term "dealers" does not apply to these-there have been
and are 400- to 500-plus individual vendors in the Chicago area, each of whom
personally services one route with dairy products he has purchased from a dairy.)
For a number of years (perhaps with minor exceptions, but they are not relevant
hereto), the dairies, master vendors, and haulers headquartered within Local 753's
geographic jurisdiction have been parties to collective-bargaining agreements with
Local 753 governing the working conditions of their transportation employees-i.e.,
drivers of van and tank trucks, whether local or over-the-road, and retail and
wholesale route drivers 18 These contracts, at least for the past 20 years, have
18 To the degree that dairies have used "inside ," or processing/bottling employees, they
have dealt with Respondent Union's sister -local , Local 754 , with respect to their working
conditions.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
represented the results of bargaining sessions between Local 753 on the one hand
and the Association on the other.
Not all Chicago and vicinity dealers, in the sense used here, have been or are
members of the Association . On the contrary , insofar as this record reveals, mem-
bership is normally confined to the dairies, and it has not included all of them.
For example, in recent years, there have been approximately 45 dairies in the area,
of whom, as earlier indicated, only 36 belonged to the Association on May 7, 1964.
To say, moreover, that the bargaining sessions nominally conducted between
Local 753 and the Association, with a membership of 36 dealers, might and did
affect the working conditions of the employees of 140-odd dealers constitutes an
oversimplification of the situation. For one thing, Respondent Union, at any given
time, has had no way of knowing which dealers were and which were not Associa-
tion members. For another, as each contract period approached its expiration,
Local 753 would then serve each dealer a contract signatory, Association member
or no, with the required notice of a desire to make changes; and, after the time
and place for the commencement of bargaining had been arranged with Thomas
Gilmore, the Association's attorney,19 it would pass on this information to all
signatory dealers, Association members or no, and, noting that the results of these
negotiations would be binding upon all dealers now under contract, would invite
them to be present. In point of fact, nonmembers could and did put in appear-
ances at negotiation meetings in the past,20 and some of them contributed to defray
the costs of the negotiations. The agreements reachd at these sessions, reduced to
printed form, have traditionally been sent by Local 753 to each dealer-party to the
expiring contract, Association member or no, for signature and return, an official
of the Association might and often did notify dealers, whether or not Association
members, of the fact that the contents of the printed contract form being sent
them by Local 753 accorded with the agreements reached; and, finally, these con-
tract forms were signed and executed by dealers, both Association members and
nonmembers , and returned to Local 753.21
The instant case finds its genesis in the fact that, over the years up to and includ-
ing the date this hearing opened, a substantial amount of the "raw" or "fluid" milk,
from which the Chicago dairies process or manufacture their bottled milk or other
dairy products, is and has been procured from sources outside the geographical
jurisdiction of Local 753, specifically, from sources in the State of Wisconsin. Prac-
tically all such milk-details appear infra-has been hauled from Wisconsin to
Chicago installations of Illinois dairies by independent haulers based in Wisconsin,
including some of those hereinabove found to be "persons " within the meaning of
the term as used in Section 8(e). In their operations , these haulers, like the
Chicago-based independent haulers to whom reference has also been made, use
their own equipment-normally, tank trucks-and their own employees. How-
ever, unlike the Chicago-based haulers, they have no contractual relations with
Respondent Union; 22 instead , the respective union bargaining agents with whom
they deal are Wisconsin locals of the same International with which Local 753 is
affiliated.23
From the standpoint of Respondent Union, this constituted a "problem" at least
as far back as the early 1950's-a problem involving the impact of the work being
performed by "outsiders" upon that available to employees represented by Local
753. And, in the opinion of that Local's representatives, the situation in this
to I find Gilmore to be an agent of the Association and of its members.
20 For example, representatives of PMA
21 Attempts by individual dealers to incorporate deviations from the details of agreement
reached in "Association" bargaining have been almost nonexistent. This record does con-
tain testimony of occasions on which delay by a dealer in signing his printed contract was
followed by some form of "reminder" by Local 753; on which a dealer, in submitting his
signed contract , might voice dissatisfaction with one or another of its provisions; and on
which, some 12 to 14 years ago, one or two dealers , then Association members, were sub-
jected to a strike because they balked at making certain pension fund payments called for
by the contract But I perceive no serious attempt to persuade me that there was any
individual -employer bargaining apart from that taking place in the form above described,
and I find none
rd Except for Quality , which has been party to contracts with Local 753 covering one of
its employees who operates out of a Chicago garage
za The Wisconsin ' locals are also affiliated with Joint Council 39 of the same International
I find that both the Wisconsin Locals and the Joint Council are labor organizations within
the meaning of the Act
MILK DRIVERS UNION, LOCAL NO. 753 1465
respect worsened over the years. Early in 1957, on the advice of the International
organizer who serviced both Local 753 and the involved Wisconsin locals, repre-
sentatives of those organizations met and drafted an agreement-sometimes called
the "Treaty"-whereunder (and I paraphrase) it was stipulated that (1) where
operations of employees represented by Wisconsin locals extended into Local 753's
geographical jurisdiction, the applicable employee benefits would be those of Local
753 or of the involved Wisconsin local, whichever were greater, and (2) in con-
nection with such operations, the union membership of a specified proportion of
the employees involved would be transferred from Wisconsin locals to Local 753.
Apparently, this did not solve Respondent Union's problem, and, as early as
1959 or 1960, the method of bringing raw milk into Chicago was the subject of
discussion between Union Representative Haggerty and Association Representative
Gilmore. It appears that some complaint was made by the former as to the inade-
quacy of the Wisconsin locals' pay scales and, indeed, of the failure of those locals
to enforce their own pay scales, as well as of the fact that the work itself was
being done by "outsiders"; that Gilmore made a special trip to Wisconsin, only to
find that the Wisconsin haulers were opposed to any change; and that Haggerty,
informed of this attitude, said that "this was their [the Wisconsin haulers'] prob-
lem," to which Gilmore replied that it was a problem "between the sister-Locals of
the International." Recognition of the situation found its way into the 1961 con-
tract 24 between Local 753 and the Chicago dealers: Article 44 of that contract,
the "grandfather" of article 43-B of the 1964 contract, one of the clauses hereunder
attack, provided that:
The transportation division shall not be reduced from its present status and
immediate steps shall be taken to restore our members. jobs in all other plants
covered by this agreement.
But the existence of this clause in the 1961 contract did not close the subject. On
the contrary, in Local 753's view, the problem at which the clause was directed
grew rather than diminished, and a meeting was held between officers and repre-
sentatives of the International and of Local 753 in 1961 or 1962. Among those
present was the International organizer for Local 753 and the Wisconsin locals,
but no officer or representative of the Wisconsin locals participated. Local 753's
representatives having explained the "situation," they were advised, in effect, that
the problem should be met by the development of an "appropriate" contractual
clause for insertion in Local 753's collective-bargaining contracts; and, should the
clause be incorporated in contracts, Local 753 was assured, the International would
give full support to its effectuation.
The subject was reraised in the 1963 negotiations with the Chicago dealers. The
resulting 1-year contract contained, among other things,25 a new article 44 (which,
inevitably, must be considered the "daddy" of article 43-B):
Transportation division shall not be reduced from its present status and imme-
diate steps shall be taken to restore these jobs in all plants covered by this
Agreement. Substantial progress shall be shown by August 15, 1963.
This was the situation as the time approached for the negotiation of a new con-
tract early in 1964.
B. The 1964 negotiations
Under date of February 18, 1964, Local 753 sent a letter to the 139 dealers sig-
natory to the 1963 contract, notifying them that that contract was now to be con-
sidered "open" in accordance with the terms of its article 49 and informing them
that, after (Union) proposals for changes had been diafted, they would form the
basis for discussion at a meeting "with your committee." Thereafter, six of the
seven members of the Local's executive board 26 and a "Rank-and-File Committee"
consisting of six representatives of the affected categories of employees, considered
and formulated proposed changes of the current contract for incorporation in a
new one; the proposed changes weie presented to Local 753's membership, at a
regular meeting at which time they were "approved" with a minimum of discussion.
'3 Effective from 1961 to 1963 For convenience's sake, I shall sometimes refer to the
individual contracts in this series by the year in which each was negotiated and took effect
' Provisions of the 1963 contract which are pertinent herein will be found in"'Appendix
B" to this Decision.
"0 Feigner, Haggerty, Cbristiano, Gorney, Turner, and Wolinsky Local President
McNulty was out of the country at the time.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile, upon receipt of a copy of Respondent Union's letter of February 18,
Gilmore had called Haggerty, saying the dealers were ready to meet on the new
contract; Haggerty had reminded Gilmore that the Union had some procedures to
go through: selecting an employee committee, formulating proposals for changes,
and having them approved by the membership. Now, the preliminary mechanics
exhausted, Haggerty and Gilmore agreed upon the time and place of the first
meeting.
Local 753 followed up with a "letter" sent, on or about the date it bore, to the
dealers who were parties to the 1963 contract:
April 3, 1964.
NOTICE TO ALL SIGNATORIES OF LOCAL 753 CONTRACT
Gentlemen:
The Milk Drivers' Union Executive Board and Wage Scale Committee will
present the Union Proposals for the new contract at the Associated Milk
Dealers' offices at 309 W. Jackson Blvd., on Friday April 10, 1964, at 1:30
P.M.
The negotiations for a new contract will begin at that time, an all Dealers are
invited to be present The results of these negotiations will be binding on all
dealers under contract with our Union.
Very truly yours,
MILK DRIVERS UNION
(S) Thomas J. Haggerty
THOMAS J. HAGGERTY
Secy.-Treas.
The first negotiating meeting commenced at the time and place indicated. Sit-
ting on one side of the meeting room were the union representatives, its executive
board (less McNulty) and the six members of its rank-and-file committee. Lining
the other three walls were representatives of dealers: Gilmore, Association Secretary
Nonnamaker, Association Field Representative Keller, approximately two-thirds of
the Association's so-called labor committee of 15 or 16, and 25 to 30 individuals
connected with various dealers, including one or more dealers who were not mem-
bers of the Association.
Haggerty, acting as spokesman for the union group, read off Local 753's pro-
posals for changes to be incorporated in the new contract, briefly, commenting on
each one. One of the proposals, sometimes called the "transportation clause."
involved a desired change in article 44 of the expiring contract; 27 and, since the
extent to which time was expended in discussing this proposed change-either at
this meeting or in the balance of the negotiations-looms large in the disposition
of this case, there will be detailed discussions of this subject at a number of places
hereinbelow
The parties offered extended testimony and arguments as to whether Haggerty
specifically explained, at this first negotiating meeting, that the proposed change
in the article meant that all transportation equipment serving each signatory dairy
must be operated by employees of that dairy. No person who was present at this
meeting 2e credibly testified that he did.29 Association Attorney Gilmore testified
that he did not; and others-including Respondent Union's Executive Board Mem-
bers Christiano, Turner, and Haggerty himself, although testifying as to the occur-
rences at this meeting-made no specific allusion to this aspect. The explanation,
I find, lies in the union proponents' oft-repeated sentiment that the words of the
proposal quite "self-evidently" called for hauling on behalf of a dairy to be done
by employees of that dairy; the fact that no such explanation was deemed necessary,
I find, was the reason for a failure of communication.30 At any rate, I find that
Haggerty did not, in so many words, explain with specificity what compliance with
27 The proposal , as well as others bearing upon the issues in this case , Is excerpted in
Appendix C hereto, at section I.
28 The testimony of McNulty , who was not present, has no probative value in this respect
2D The nearest to it : Ed Rummery , who had been a member of Local 753's Rank-and-
File Committee , testified that Haggerty , in explaining what the dairies would have to do
to comply with the proposed change, said , "The drivers would be employees of the
dairy . . . . " ( Emphasis supplied.)
30 This is not to say that I simultaneously find that this "self-evident" basis for 43-B
was In fact its true basis . I leave this for determination infra.
MILS DRIVERS UNION, LOCAL NO. 753 1467
the proposed change would call for. He did say, I find, that the expiring article
44 had not served its purpose; that the employers had not "kept faith" with it;
that, despite its avowed purposes (of preventing reductions of work among trans-
portation workers and of restoring transportation jobs at the dairies of all signa-
tories), there had been a reduction in transportation jobs during the year; and that
it had now become necessary to insist on the proposed language to accomplish
Local 753's objectives-to "take care of the transportation situation," to get the
"transportation jobs back," and to "protect our membership." 3i
The dealers-Gilmore was their spokesman-did not enter into a discussion of
the merits of the newly proposed transportation clause, or indeed of any of the
proposed changes. They listened and, afterwards, were given mimeographed copies
of the proposed changes for study at their leisure.
During the next 7 days, the labor committee of the Association prepared its
own proposals for contract changes 32 These proposals were delivered to Local
753 at the second of the negotiating sessions , held on April 17 and attended by
substantially the same individuals as has been present at the first meeting, plus
Local 753's President William McNulty. The proposals were read aloud by Gil-
more. Once again , there was no discussion in depth of the merits of the proposals-
either the dealers' or the Union's delivered 1 week earlier. However, union repre-
sentatives-Haggerty, McNulty, and Christiano did the talking-did say that the
dealers' proposals were unacceptable and that their own were eminently reasonable.
In the course of his remarks, McNulty, after saying he "wanted no part of" a 5-day
week (one of the dealers' proposals), said that Local 753 wasn't going to give up
anything-on the contrary, it was going to try to maintain what it had and at the
same time try to get back its lost transportation jobs with the help of the clause
it had proposed-it was going to protect and retain its members; and, in conclu-
sion, he said he would like to see the pasties "talk tnings over like men, and get
it over with fast." 33 At the meeting's end, Gilmore stated that the dealers would
take the Local 753's proposals under advisement and expressed the hope that the
dealers' proposals would be given serious consideration by Local 753.
I shall not go into detail with respect to the period covered by the third through
the next-to-last meetings. There was extensive testimony covering this period, on
some matters which, I now find, are immaterial to the issues of this case.34 As for
that which is material however, I here make a number of findings. For one thing,
there were 10 or 11 meetings altogether. For another, the bulk of the face-to-face
negotiatme was done by Haggerty and Gilmore, their respective principals, in
separate rooms, receiving reports from them and giving them instructions.
Finally, with respect to Local 753's proposal for changing article 44, I find that
no one from the Union explained that compliance with the proposed change would
mean that all equipment used in transporting milk or other products to or from
the premises of a signatory dealer would have to "belong" to such dealer and
that only employees of that dealer could operate such equipment. On the other
hand, I find that no explanation was requested by the dealers and, specifically,
that the dealers never contended to the union representatives that the proposed
31 This is an amalgam of the credited testimony, not completely consistent with that of
any one witness. In so finding, I have been guided not only by the respective witness'
demeanor ; I have made due allowances for self-interest and have given compelling weight
to factors of plausibility.
32 Those of these proposals which bear upon the issues herein are excerpted in Appendix
C hereto, at section II.
33 Thus, to the extent it is material, I find that McNulty did not explain at this meeting
that compliance with the Union's proposal respecting article 44 meant that the subletting
of the hauling of milk was to be banned and that dairy employees only were to do such
work. I reject testimony to the contrary given by McNulty in response to suggestive, if
not leading , questions ( on the stand , he spoke of his poor memory ), and that of Respondent
Executive Board Member Turner. Except for the exclusion of this item, my finding herein
is basically an adoption of the testimony of Respondent Union's witnesses as well as that
of others.
84 For example, on questions of whether the third meeting was one in which the Union
and the employer representatives met face to face or whether , as in subsequent meetings,
the two groups , except for their spokesmen , stayed in separate rooms ; and whether or not
the third , or some other , meeting was devoted, at least in part, to the separate problem
of retail dealers or to ways of investing pension funds-or whether , If either such subject
was covered at a meeting , it was or was not a part of the "series of negotiating meetings."
1468 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
clause was "illegal" or "unlawful." 35 I find, in fact, that Gilmore-and, when
they were present, the participating dealers-advisedly avoided discussion of the
proposed clause. Indeed, with respect to this clause, the situation during the period
might best be described as one in which Local 753 was bargaining with itself. I
find that at one of the meetings, held on or about April 30, Respondent Union-
in the belief that the clause would be more palatable to the dealers-made an alter-
ation in its proposal : instead of requiring the dealers to operate "their equipment,"
the wording was changed to require them to operate "the transportation equip-
ment." 36 This change, I find, was not the result of dealers' suggestions or of
dealers' complaints about the expense involved.37
As for article 45 of the 1963 contract-see "Appendix B" hereto-which is the
forerunner of article 45 of the 1964 contract-"Appendix D"-also under attack
in this proceeding, there was no discussion whatsoever at any point in the 1964
negotiations, either during the period under immediate discussion, before, or after.
Respondent Union had made no proposals for change in this respect; 38 and, al-
though the dealers, in their original written proposals, had expressed an intention
to offer changes in this provision before the conclusion of negotiations, they never
did reraise the subject.
The last meeting of the 1964 negotiating series took place on May 7, As in the
case of the last six or seven meetings, the two bargaining groups separated, only
their spokesmen meeting, intermittently , face to face.
There is dispute as to the issues remaining unsettled as of the beginning of the
meeting. On the basis of the testimony offered on this point, I find that there were
the following points of disagreement:
(1) Respondent Union's proposal to add to article 20 of the 1963 contract-
which permitted any employer signatory to take advantage of more favorable
terms or conditions which mignt be accorded by Local 753 to any other
employer, either by agreement or by practice-the provision that any employer
signatory proven to have violated wage or hour requirements of the contract
should pay a penalty equal the amount involved in the violation to Respondent
Union to be used for charitable purposes.
(2) The dealers' proposal for a new article requiring the retirement of
employees at the age of 65.
(3) The dealers' proposal-in connection with article 49 of the 1963 con-
tract-that the term of the 1964 contract be 3 years instead of 1.
(4) Respondent Union's proposal with respect to article 44-discussed earlier
herein-as amended by the changed language of April 30.
In so finding, I credit witnesses for Respondent Union, as corroborated, in effect,
by the testimony of one or more of the General Counsel's witnesses.39 I am not
persuaded , as urged by the General Counsel and Respondent Dairies, that this 10- or
12-hour meeting was confined to the settling of the transportation issue, especially
in view of the dearth of discussion-see infra-which preceded its resolution.
All four issues were disposed of at this meeting.
The "penalty clause" was accepted by the dealers.40 The principle of compulsory
retirement at 65 was accepted by Respondent Union after certain "safeguards" were
25In so finding , I specifically discredit testimony of Gilmore to the contrary ( Testimony
as to has reports to participating dealers has little, if any, probative value in this respect )
Whatever may have been Gilmore's , or individual dealers', opinion as to the validity of the
clause, I find , on all the testimony , that it was not conveyed during bargaining.
38 The emphasis is mine. The change , it was believed , would make it clear that dealers
could lease or otherwise procure equipment without purchasing it
37 Thus, I reject rather vague and confusing testimony to the contrary.
38The same , or substantially the same, language had appeared in these contracts for
many years.
Se Henry Soldwedel , a member of the Association 's Labor Committee and president of
Respondent Wanzer Dairy , after testifying that article 43-B (article 44 of the 1963 con-
tract ) was the only open issue , " imagined" that "many other demands" were still un-
resolved . And Gilmore himself, who first testified that he-believed the. transportation clause
was the only open item, conceded that the necessity for inserting a sentence into article 20
or some other article "sort of sticks in my mind " and that "it was possible " that the
question of compulsory retirement was still to be resolved.
40 Gilmore , referring to the article in question as a "vendor clause ," denied that the
dealers had ever agreed on a , clause relating to vendors ; without retreating , from this
position , he conceded that the provision in question had been agreed upon, but his testi-
mony as to the time of the agreement was far from convincing.
MILK DRIVERS UNION, LOCAL NO. 753 1469
inserted. (See article 44 in the 1964 contract-"Appendix D.") And it was
agreed, after a wage increase for the third year was proffered, that the new contract
would be effective for 3 years.
The transportation clause was the last subject of agreement. Local 753 offered
one more change, and again, in effect, the Union was bargaining with itself, for
(I find) the change was not requested by the dealers: it offered to suspend com-
pliance with the clause until August 15, 1964. As thus changed, Respondent Union,
through Haggerty, told the dealers, through Gilmore, that the provision was a
"must." Gilmore, making some allusion to the costs of compliance and predicting
its unacceptability to his principals, said he would convey the message to them.
He did so-apparently telling the dealers that the Union would strike for the clause
if necessary; "otherwise," he told them, he believed that this was a "good" contract.
Although the sentiment among the dealers on the clause in question was not uni-
form, they authorized Gilmore to instruct Haggerty that they would agree to the
package.
It was now announced to all present that full agreement had been reached, and
all but Haggerty and Gilmore left for supper. These two, with the help of Associa-
tion clericals, drew up and signed a document containing the agreed-upon items
which would constitute the differences between the old (1963) and the new (1964)
contracts. When the principals returned, they assembled to hear the document
read. A period of jubilation, exchange of pleasantries, and self-congratulation
followed,41 after which the meeting, and the negotiations, came to an end.
Subsequently, using the 1963 contract and the agreed-upon schedule of changes
as points of reference, Haggerty prepared, and Gilmore approved, the form from
which the 1964 contract was printed. (Among other things, it specified that the
agreement was effective as of May 1, 1964.) Two copies, one signed on behalf of
Local 753, were sent by Respondent Union to each dealer signatory to the 1963
contract, with instructions that the second copy be executed on behalf of the dealer
and returned to Local 753. Gilmore sent each of these dealers a "bulletin"- cer-
tifying that the printed contract being sent them had been checked by Association
representatives and was an accurate reflection of the agreement reached at the recent
negotiations.42 Within a period of 6 or 8 weeks after agreement had been reached
and after, in some cases , representatives of Local 753 issued a number of reminders,
141 dealers, including all Respondent Dairies,43-submitted signed contracts.44
C. The suspension of article 43-B's effectiveness
The pertinent portion of article 43-B as it finally appeared in the 1964 contract,
read as follows:
All Dealers must employ members of Local 753 to operate the transporta-
tion equipment. The final date for full compliance shall be August 15, 1964.
By its terms, then, compliance with the article, whatever form compliance might
take, was scheduled for 31/2 months from the effective date of the contract.
The unfair labor practice charge initiating this proceeding was filed on June 22,
1964. Following an investigation of the circumstances surrounding the allegations
of the charge, the Regional Director for Region 13 of the Board took steps, under
Section 10(1) of the Act, designed to lead to injunctive relief pending the final
adjudication of the Board with respect to the matter. On a date • with respect to
which the instant record is unclear, but occurring subsequent to June 22 and prior
to August 15, Local 753, through its counsel, gave assurances to the Regional Direc-
tor that any enforcement of the disputed article would be postponed pending a
Board decision in the instant case, and all action in connection with the injunction
proceeding was suspended.
The Regional Director commenced no-injunction action against Respondent Asso-
ciation or Respondent Dairies, and no assurance of noneffectuation of Article 43-B
was given by these Respondents. Considering the realities of the situation, how-
41 This was the earliest for a number of years that the terms of a new contract had been
agreed upon.
42 This finding is based upon the concession of Gilmore (who had peculiar possession of
the information) that the bulletin "could have gone" to all dealers
4$ Four of the Association's 36 members were not parties to the contract since they had
no employees working within Local 753's jurisdiction
"The 141 consisted of all but 3 signatories to the 1963 contract, plus 5 who had not
been parties to that contract.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever-clearly, despite their acquiescence in the terms of the 1964 contract, these
Respondents did not desire and do not desire to implement the 43-B requirement-
neither the injunctive action nor the assurances were necessary.
I find that at no time between the execution of the 1964 contract and the holding
.of the instant hearing has the provision here under attack been enforced or imple-
mented.45 I find, on the other hand, that upon a disposition of this case at the
Board level, one or another of the Respondents herein, or all of them, may or will
attempt to enforce or implement, or actually enforce or implement, the clause in
question.
D. Statements about 43-B made by Local 753 agents
The instant record contains testimony as to statements about 43-B attributed to
agents of Local 753, above and beyond any such statements made during the 1964
negotiations as described above.
In January 1964, before negotiations for the 1964 contract had begun, Local
753's president, William McNulty, had a telephone conversation with Jack Polivka,
president of Respondent Willow Farms Dairy. After several other items had been
discussed McNulty, without referring specifically to the transportation clause in
the then effective (the 1963) contract, asked Polivka whether or not Willow Farms
had made any arrangements for "753 men" to haul its fluid milk from the country.
Polivka said that no such arrangements had been made-he felt that this was a
"jurisdictional dispute" between Local 753 and the Local representing the employ-
ees of Hugh Miller, long-time hauler for Willow Farms.46 McNulty then asked
whether Willow Farms would use its good offices to promote membership in Local
753 among Hugh Miller's employees, but Polivka declined so to act. For one
thing (he repeated), this was the Locals' affair, not his; for another (he said),
he did not wish to hazard losing the substantial sources of milk supply over which
Hugh Miller had control. Finally, he offered a bit of "advice": if McNulty went
up (to Wisconsin) he would be taking a risk of "having his head blown off" in
view of the dissatisfaction among Wisconsin farmers with recent activities of the
National Farmers' Organization.47
Once again, on or about April 27, 1964, McNulty raised the subject in a conver-
sation with Polivka. He noted that the transportation issue, then a part of the 1964
contract negotiations, was a very important one, and he asked if Polivka had made
any plans. Once again, Polivka said he had not and that he felt this was a prob-
lem for resolution between Local 753 and "Hugh Miller's Local." There was no
reference to union membership in their conversation 4B
F. & K.-earlier described as an Illinois-based milk hauler-is one of the dealers
which had been signatory to the 1963 contract with Local 753 and which, late in
May 196d, was sent a copy of the newly executed (1964) agreement for signature.
On or about the day the copy arrived at F. & K., one of its owner-partners, John
Konecnik, Jr., "concerned with" the language of article 43-B, telephoned Francis
Gorney, Local 753's business agent for F. & K.49 He asked what the language
meant and whether F. & K. had anything "to worry about." In posing the prob-
lem, he noted that "it appeared" that all transportation would have to be done by
Local 753 members, and he pointed out that "we are 753 members." Gorney
reassured him, saying, "As far as you are concerned, it's fine." Specifically, Konec-
nik asked how F. & K. would be affected by the article; specifically, Gorney said
there would be no effect-he added that F. & K. had been "Local 753" since its
origin and that it was still "Local 753 in good standing," and that there was no
reason to worry. Thus reassured, Konecnik asked if F. & K. should solicit new
hauling business from dairies; in reply, Gorney said, "No, you should leave things
as they are until this gets settled." 50
4 This is not to say that Local 753 agents, prior to the giving of assurances to the
Board's Regional Director, issued no reminders to dealers of 43-B and of its "deadline "
This is discussed in the next subsection.
° Hugh Miller, earlier here found to be a person within the meaning of the term as used
in Section 8(e) of the Act, was a Wisconsin-based independent hauler which dealt with a
Wisconsin local.
47 The findings as to this conversation are based on the uncontradicted, credited testimony
of Polivka.
48 The findings in this paragraph are based on Polivka's uncontradicted testimony
60 As noted earlier, Gorney is a trustee of the local and a member of its executive board.
Each executive board member acts as business agent for a group of specified dealers.
60 The findings in this paragraph are based on the credited testimony of Konecnik.
Gorney did not testify.
MILK DRIVERS UNION, LOCAL NO. 753 1471
On or about June 2 or 3, before Respondent Willow Farms had returned its
signed 1964 contract to Local 753, McNulty, accompanied by Local Trustee Robert
Turner, visited the premises of Willow Farms to discuss a work problem with the
dairy's president, Polivka, and its general sales manager , Adolph Sharapata. The
problem having been disposed of, McNulty-for the third time in 5 months, inso-
far as this dairy was concerned-asked whether any arrangements had been made
for the hauling of Willow Farms' milk by "753 personnel." Either Polivka or
Sharapata alluded to the cost of procuring equipment; McNulty pointed out that it
could be leased; and this brought forth the retort that, even so, the cost would be
substantial. Then Sharapata said, in direct answer to McNulty's question, that no
arrangements had been made; moreover (parroting a sentiment previously voiced
by Polivka), he believed this was a jurisdictional dispute between Local 753 and
the local representing the employees of hauler Hugh Miller-a dispute in which
Willow Farms was not and should not become involved. McNulty pointed out that
Willow Farms, not Hugh Miller, was obligated under a contract with Local 753
and that Local 753 would look to Willow Farms, not Hugh Miller, for compliance.
He ended with, "You'd better get busy. Time is short." 51
Since January 1, 1964, Anthony Christiano, Local 753's recording secretary, was
Respondent Union's point of contact with Respondent Wanzer Dairy, but, during
the first 5 or 6 months since he had assumed that responsibility, not only he but
other Local representatives had frequent conversations with members of Wanzer
management. The occasion for the frequent contacts was a running dispute hav-
ing to do with the length of the workweek and the requirement of premium pay-
ment for overtime work, the -details of which are not relevant to the instant case.
But at least two conversations have or may have a bearing on the issues herein.
Between June 10 and 15, 1964, following a discussion with Local President Mc-
Nulty with respect to the dealers who had not returned signed contracts-and
Wanzer was one of them-Christiano stopped in at Wanzer. In response to his
query about whether the signed contract was ready, Henry Soldwedel, Wanzer's
president, said he would sign and mail it in within the next 2 or 3 days. The
signed contract still unreceived 5 or 6 days later, McNulty telephoned Soldwedel
with a second reminder; and Soldwedel said the contract would be sent in shortly.52
This was the extent of the two conversations 53
Late in May or early in June 1964-after he had received a copy of the 1964
contract to sign-Lee Nevtipil, an official of Milk Service, Incorporated (hereafter
called Milk Service), an Illinois-based milk hauler whose employees had been and
were represented by Local 753, received a telephone call from Thomas Haggerty,
Local 753's secretary-treasurer. Haggerty asked Nevtipil if he had any idle equip-
ment capable of hauling milk. Receiving an affirmative answer, he said that there
would be plenty of work available after August 15 and that Milk Service ought
m Polivka and Sharapata on the one hand, and McNulty on the other, gave slightly
differing versions of the conversation ' (Although Turner was called as a witness, he did
not testify as to the incident.) The conversation as above found constitutes my reconcilia-
tion of the relatively insubstantial variations in the testimony of the three
52 It was sent in, accompanied by a letter questioning the legality of article 43-B.
53 Thus, I have credited the testimony of Christiano and McNulty in these respects. I
do not credit certain contrary testimony by Soldwedel, whose appearance on the witness
stand clearly demonstrated his inability to recall details. He testified that, in a mid-
June conversation with Christiano, (a) he asked about the meaning and effect of article
43-B , (b) he complained of the costs of compliance, a complaint which Christiano merely
shrugged off; and (c) he told Christiano of attempts by a Chicago-based "Local 753" in-
dependent hauler to procure some or all of Wanzer's milk hauling, a prospect toward which,
as far as Soldwedel could recall, "Christiano voiced no objections " He testified further
that he had a number of conversations with Christiano about article 43-B ; specifically,
that one conversation occurred on June 22 in which he protested that article 43-B was
unlawful and asked if Wanzer must spend $150,000 on acquisition of equipment, a plaint
which (according to Soldwedel) Christiano shrugged off in the same words and manner
as in the conversation one week earlier., In rejecting these portions of Soldwedel's testi-
mony, I conclude, among other things, that Soldwedel, in his testimony, has confused a
number of occasions and subjects. For example, I find that, at a meeting prior to the
1964 negotiations, Soldwedel had made mention to Christiano of Wanzer's need for
$150,000 worth of wholesale and retail trucks, a need unrelated to article 43-B ; and that,
during April and May, F. & K, acting on what it conceived to be the thrust of article
43-B, had indeed solicited milkhauling work from Wanzer. In my opinion, Soldwedel was
"borrowing" from these occasions in his testimony as to later contacts with Christiano
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to contact dairies in order to get work for the extra equipment. When Nevtipil
displayed a reluctance to solicit new business, Haggerty suggested that Nevtipil
call a specified person at Hawthorn-Mellody Dairy (one of the Respondents here-
in). This constituted the entire conversation between the two and was the only one
between them on the subject 54
In June 1964-after the 1964 agreement had been negotiated but before Local
753 representatives had been instructed to refrain from discussing 43-B-Robert
Turner, Local 753 trustee, and Thomas Rusecka, corporate secretary of the
Respondent Seeley Dairy, were engaged in conversation. The conversation con-
cerned a subject unrelated to the instant proceeding. After that subject had been
thoroughly covered, Turner made mention of the new transportation clause. He
reminded Rusecka that, under the contract, Seeley would have to use its own per-
sonnel to do its milk hauling, and, further, that those hired to do the hauling
would have to be members of Local 753. Rusecka informed Turner that Seeley's
hauling was being done by persons who belonged to Local 753; 55 therefore, he
said, he felt that Seeley was complying with the contract. Besides, he continued, if
Seeley had to do its own hauling, it might have to eliminate its milk-processing as
an economy measure. Turner thereupon disclaimed the knowledge of any solution
to this "problem." The conversation ended and the subject was never reraised
between the two.56
On or about June 18, 1964, Local 753 Vice President Carl Feigner telephoned
Edward Ebbeson, vice president and manager of Ogden Dairy, one of the Respond-
ents herein. He reminded Ebbeson that article 43-B would go into effect on
August 15 and that Ogden should make arrangements to comply. Ebbeson said that,
at the moment , he could not say what Ogden planned to do but-thinking aloud-he
said it looked as if they would have to buy (transport) equipment. Upon Feigner's
suggestion that some other arrangement, such as the rental of equipment, might be
made, Ebbeson said that renting equipment only meant that someone else would
have to receive a profit. This was the whole of conversation 57
Early in August, John Konecnik of F. & K. pursued further the subject he had
barely touched upon in his earlier conversation with Gorney, reporting supra. He
called Thomas Haggerty, Local 753's secretary- treasurer. Alluding to article
43-B, he asked whether it was true that Respondent Borden was moving to a new
location and whether F. & K. could get some of that dairy's hauling. Haggerty
suggested that there would be some "out-of-area" hauling to be performed but said
that F. & K. would have to communicate with Borden directly.58
On November 5, 1964-the second day of the hearing herein-Konecnik called
the offices of Local 753. Local President McNulty spoke to him, saying that F. &
K.'s business agent , Gorney, would have to call back on the subject of the contract.
Before they terminated the conversation, however, Konecnik said he had heard a
rumor that the Union was seeking to force the dairies to buy their own transporta-
tion equipment ; in reply, McNulty said he was not at liberty to talk about the
subject, that a hearing on the matter was now in progress .59 Gorney, the same day,
64 In so finding , I credit testimony of Nevtipil, although I do not regard the fact that
Nevtipil actually ( unsuccessfully) solicited Hawthorn -Mellody's business as probatively
corrobative . Early in the course of his testimony , Nevtipil gave certain details which, if
accurate and if viewed in their entirety , tended to demonstrate that the conversation, if
it occurred , took place considerably earlier-before the transportation clause here under
attack was negotiated . But, his attention called to the possibility of error-actually,
there was a broad insinuation that he was lying-he conceded that he had been mistaken
and he corrected himself ; to the extent that appearances are indicative , I believe that his
testimony , as corrected , merits belief . Haggerty did not testify about the conversation.
ss Seeley 's hauling was being done by Peacock Trucking Company, an Illinois -based in-
dependent hauler who has been party to successive contracts with Local 753.
w The findings in this paragraph constitute an amalgam of Rusecka's and Turner's
versions , which did not differ in relevant detail. Both impressed me as basically believable
witnesses. In reconstructing the conversation, I have generally adopted that which
appeared to me to be contrary to the respective interests of the testifiers ; above and
beyond this, I have given compelling weight to that which most comports the plausible.
57 The findings as to which are based on Ebbeson 's uncontradicted testimony.
58 This finding is based on the credited testimony of Haggerty . Ionecnik did not testify
about the incident.
60 Findings as to this conversation are based on Koneenik's uncontradicted testimony
MILK DRIVERS UNION, LOCAL NO. 753 1473
called Konecnik in response to the message. After a discussion of matters irrelevant
hereto, Konecnik repeated the rumor he had mentioned to McNulty. Gorney's
response: "Oh, you don't have to worry. You fellows are Local 753, and it's up in
the air now. We're having a hearing now [and] we will know more later." 60
The above constitute my findings based on the whole of the testimony as to
"extra-negotiations" statements made by agents of Respondent Union. In addition,
it is conceded, and I find, that on various occasions (all prior to the giving of
assurances of nonenforcement of article 43-B as noted in the last preceding sub-
section of this Decision) agents of Local 753 did communicate with reperesentatives
of dealers either in person or by telephone and did ask them to comply with article
43-B and/or did remind them that compliance would be mandatory on and after
August 15. On the other hand, with whatever exceptions one may be able to draw
from the conversations found in this subsection to have occurred, I find that agents
of Local 753, in conversations with dealers' representatives, deliberately avoided
making any reference to 43-B after having received advice of counsel to refrain
from pressing for compliance with 43-B, which advice was rendered and conveyed
to them at or about the date that Respondent Union's counsel gave assurances to
the Board's Regional Director that efforts to enforce the disputed article would be
postponed pending a Board decision in the instant case.
E. The impact of 43-B
While there is dispute as to the meaning of 43-B (a subject discussed in detail
infra) there is no disagreement that-whatever interpretation is put on the clause-
adherence to it would require the termination of a number of arrangements where-
by the hauling of raw or fluid milk to Chicago-based dairies was being done by
independent haulers.
It was the position of Respondent Union-to anticipate a bid-that the transpor-
tation clause, properly implemented, would require each of the dairies signatory to
the 1964 contract to haul its own milk supply into its processing plant(s), using its
own employees to operate its own (purchased, leased, or otherwise acquired)
transport equipment. It concedes, specifically, that, in order to comply, each of
the affected dairies now using, independent haulers (1) would have to terminate any
such arrangements with its 'haulers, whether or not the haulers were signatory to
contracts with Local 753, (2) would have to procure transportation equipment
sufficient to meet its raw-milk needs, and (3) would have to man the equipment by
hiring new employees or redistributing the duties of its present employees.
The General Counsel and Respondents Association and Dairies found themselves
in accord with Respondent Union in at least one respect. They agree that, at a
minimum, compliance with 43-B would bring about the changes detailed in the last
preceding paragraph.81 But they went further. In order to complete the picture-
for the light it might shed not only on the meaning of 43-B but also on Local 753's
motivation for pressing it-they presented evidence as to the detailed impact which
would result from compliance with the requirement.
For example, members of management credibly testified that, for operations with
which they were respectively connected, compliance with 43-B would or might be
accompanied by one or more of the following circumstances: from the standpoint
of a dairy, transportation equipment would have to be procured at great expense,
x number of employees would have to be hired or be diverted from other work,
costs would increase by virtue of the built-in inefficiencies of the imposed system,
and, in specific cases, existing operations, such as milk-processing, would be cur-
tailed; and, from the standpoint of an independent hauler-above and beyond the
loss of income derived from the business of hauling milk to Chicago dairies-
expensive transportation equipment would be rendered idle for lack of work, x
number of employees would have to be laid off unless and until substitute work
80 Based on Koneenik's uncontradicted testimony.
61 Under the alternative theory on which the General Counsel relies-that, in reality,
Local 753 does not regard compliance with 43-B as necessarily calling for a termination
of hauling arrangements with independent haulers who are parties to contracts with Local
753-the clause would still require termination of arrangements with all other haulers.
Since, as will be seen , the bulk of the hauling involved is done by non-753 haulers, this is
a distinction without meaningful difference insofar as the impact of 43-B is concerned.
243-084-67-vol. 159-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be found for them, and, in specific cases, a relocation of places of business
or a termination of entire operations would be required.62
Some idea of the potential impact of compliance with 43-B may be gleaned from
an examination of the raw-milkhauling procedures presently in effect in Chicago.
Only two Chicago dairies use their own employees and their own (the term includes
leased) equipment to bring in any raw milk; Bowman, for 15 percent of its needs,
and Borden, for 60 percent of its needs. The remainder of their raw-milk require-
ments, and 100 percent of the requirements of all other Chicago dairies, are filled
by the use of independent haulers. The dairies' own employees engaged in this
work (i.e., Bowman's and Borden's) number 15; the record does not permit an
accurate estimate of the total number of employees of independent haulers used in
this work, except to indicate that Chicago-based haulers have at least 50 such
employees, and, without doubt, other haulers have many more. The haulers not
only use many employees and a substantial amount of equipment in supplying the
Chicago dairies' needs; a substantial portion of their entire operations are devoted
to performing this function, and some do nothing else. At the very least, com-
pliance with 43-B would require all Chicago dairies to cancel current contracts or
like arrangements with their haulers; it would require them to take on an operation
not now performed by them (except, to a limited degree, by two of them), procur-
ing the necessary employees, equipment, and know-how; and it would require the
involved haulers to seek other uses for substantial numbers of employees and sub-
stantial amounts of equipment.
I do find that the impact of compliance with 43-B would be substantial. I do
not confine myself to finding (as I do) that the results described in the preceding
two paragraphs would in fact materialize. I find further that the all-round costs of
milkhauling would be substantially increased should the dairies do all their own
hauling, by virtue of a number of factors which would patently accompany any
change in this direction: men and equipment would be idle a portion of the time
because of the fluctuations of a given dairy's milk needs day by day or season by
season,63 a circumstance calling, at any given time, for more or for less equipment
and for less-than-full tank truckloads or, alternatively, for greater milk-storage
space; and men and equipment would be inefficiently utilized because, more often
than not, they would "deadhead" half of each round trip.64 While I find it unneces-
sary to adopt the characterization by one witness of the-change-over as a "financial
catastrophe," and giving due consideration to the high probability that the dairies'
management, if faced with the problem, would exercise their ingenuity toward the
62 In reliance on an unpublished remand order issued by the Board on December 3, 19;,4,
in Teamsters 710 and Wilson Company, Case 13-CC-260, which order, in effect, directed
a Trial Examiner to take testimony as to the "practical" effects of compliance with the
contract clause there in issue, the General Counsel and Respondents Association and
Dairies here sought to introduce further testimony as to what would occur if 43-B were
complied with, in an attempt to show that compliance would have such devastating results
and so lacked feasibility that, quite obviously, Local 753, in imposing 'the condition, could
not have been and was not seeking the type of compliance which it now asserts was
called for ; the magnitude of the results and the lack of feasibility, it was argued, would
demonstrate that the reason for the requirement now being asserted by Respondent Union
is but a pretext for another "real" reason-the desire to expand.its membership to cover
the employees of all independent haulers serving the Chicago dairies. Proof offered along
these lines was rejected, on the stated ground that the Trial Examiner, on the testimony
already in the record, was prepared to find that the impact of compliance with 43-B would
be substantial ; testimony tending to show that the impact would or might be more than
substantial, I ruled, was irrelevant. At any rate, where, as is the effect of the claim
made here, a labor organization is fighting for survival, I do not believe that the fact
that compliance with its demands might put certain employers out of business is proof of
pretextual action. (I might say here that I would likewise have rejected any testimony
which might have been offered by Respondent Union as to possible methods of softening
the impact, by, for example, dairies' pooling their equipment )
03 On this record I find that there are such fluctuations.
e1 The independent haulers utilize both going and return trips by carrying products other
than milk. (My conclusion in this respect, however, is unaffected by the fact that, if the
dairies did their own hauling, they would or would not, or might or might not, base their
hauling operations at the "country" or "plant" end of the haul-issues injected and argued
at great lengths by the parties. Starting from either point, the inefficiencies I have noted
would exist )
MILK DRIVERS UNION, LOCAL NO. 753 1475
alleviation of the burden they were assuming , I do find , I repeat, that compliance
with 43-B would have a substantial impact upon the dairies and upon the inde-
pendent haulers.
F. Discussion and conclusions
The complaint specifically cites, as creating the 43-B obligation here under attack,
the following portions of articles 43-B and 45 of the 1964 contract:
43-B . . . . All Dealers must employ members of Local 753 to operate the
transportation equipment. The final date for full compliance shall be
August 15, 1964.
45 .... It shall not be a violation of the agreement for members of Local
753 to refuse to work for an employer at a plant where any person or persons
delivering milk or dairy products to or from such plants are not members of
Local 753 or refuse to become members of Local 753 on the thirty-first (31st)
day if in compliance with Federal and State laws ....
It is urged by the General Counsel and by Respondents Association and Dairies
that, read together, these provisions unambiguously constitute a prohibition of any
milkhauhng on the dairies' behalf by employees-whether theirs or anyone else's-
who are not (either presently or potentially, after 31 days) members of Local 753.
According to this language, the argument continues, the signatory dairies may them-
selves haul in their milk supply or may use any independent hauler-as long as
the employees involved are present or potential members of the local; conversely,
they may not receive milk brought in by employees-their own or any independent
haulers-who are unorganized or who are members of labor organizations other
than Local 753.
Respondent Union, just as vigorously, agrees that the language is unambiguous
but contends that it has no such meaning; on the contrary, it simply means that all
milkhauling for each dairy must be done by employees of that dairy. The allusion
in both articles 43-B and 45 to Local 753 membership, Respondent Union argues,
must be read in the light of the fact that the same contract, in its article I, provides
that
For all types of work coming under the present jurisdiction of the Union, the
Employer shall hire members of the Union or those who will become members
of the Union on the thirty-first (31st) day of employment.65
Clearly (the argument runs), the emphasis in 43-B is upon dairies' having milk-
hauling done by employees; the use of terms relating to Local 753 membership, in
the light on the union security requirement, is merely descriptive.
The evidentiary rulings made at the hearing were based upon my tentative con-
clusion there reached that the articles in question were in fact ambiguous, a con-
clusion I here reaffirm. On their face, the articles restrict the signatory dairies, in
their use of employees who operate their transportation equipment, to those who are
members of Local 753, and, furthermore, permit other employees of those dairies
to withhold their services in the event nonmembers of Local 753-whether employees
of the dairy or of anyone else-haul milk to, or from that dairy. But I agree with
Respondent Union that articles 43-B and 45 cannot be read in a vacuum; their
words necessarily must be viewed in the entire context of the instrument in which
they appear, including article I. And now, having zigged, I must zag. The union
security clause may explain why there was reference to Local 753 membership in
the provisions constituting 43-B; but it does not serve to dispel ambiguity. The
provisions, as now "clarified," still (on their face) require a dairy to use its employ-
ees to operate transportation equipment; yet they recognize that employees other
than that dairy's own employees make deliveries, and they deal with this con-
tingency only in terms of whether the "outside" employees are or are not present
or potential members of Local 753. Under the circumstances, I cannot regard
43-B as unambiguous, and I shall look beyond the words to find its meaning.
The key to the meaning of the 43-B requirement, if there is a key, can be found
only in evidentiary clues pointing toward the motivation and objective of Respond-
ent Union in pressing for it. Although the complaint also names certain contract-
signatory employers, and their Association, as Respondents herein, it is obvious that
the true meaning of 43-B can only be ascertained in the light of Local 753s rea-
sons for formulating and insisting upon it. Whatever employer-representatives,
65 The General Counsel makes no attack upon the legality of this provision.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either, first, as negotiators or, later, as signatories, may have believed to be the real
meaning of 43-B-e.g., that it was a device to enable Local 753 to become the
bargaining agent for the employees of all haulers-such beliefs are of little assistance
in arriving at the controlling interpretation; these representatives declined to discuss
the involved clauses during the negotiations, and, to the extent they did anything at
all, resisted its becoming a part of the final contract. While their beliefs might be
relevant in an action to determine whether, in fact, there was a meeting of the
minds on all points, it has no value as a determinant of the real meaning of 43-B
for our purposes.66
On the witness stand, Local 753 President McNulty sought to explain the idea
behind 43-B. Consistent with the position taken in this proceeding by Respondent
Union, he insisted that, by means of the provision, the Local. was seeking to pro-
tect or to recapture-the word he used was "restore"- transportation jobs among
the dairies with whom Local 753 were dealing, and he disclaimed any desire to
expand the Local's bargaining coverage to other employers. His testimony, how-
ever, included a number of expressions which-without at this time passing on their
consistency with the Union's general position-I here record. Denying that there
was any intent to increase Local 753's membership at the expense of Wisconsin
locals and denying that 43-B was "related to" the Wisconsin locals any more than
to any one else who was taking away Chicago dairy transport work, he said that,
had the International concurred, members of Wisconsin locals engaged in Chicago
operations would have had to be Local 753 members; 67 he said also that the pur-
pose behind 43-B was to protect its transportation members, which, he said, was
the same as protecting transportation employees; and he said that Local 753 was
seeking to protect its bargaining unit, a term which he equated with "every mem-
ber in our organization."
As urged by the General Counsel and by Respondents other than Respondent
Union, I must take cognizance of a factor related to the potential impact upon
employers with whom Local 753 dealt and upon employees whom Local 753 rep-
resented. Obviously, compliance with 43-B, under the interpretation here urged by
Respondent Union, would result in a disruption of operations now covered by some
of its collective-bargaining agreements. Business relationships between "753" dairies
and "753" haulers would be terminated, and these haulers and their employees,
obviously, would be affected, to a greater or lesser degree: some of the haulers-
in accordance with my findings earlier made-might be forced out of business; and
their employees, or some of them-all members of Local 753-would be at least
temporarily deprived of work. (I say "at least temporarily" because, in Local 753's
view, a provision of its 1964 contract on Consolidations and mergers 68 required that
a dairy taking over a function such as milkhauling from an independent hauler
must take over the employees displaced by its move. Of some significance is the
fact that, if the taken-over employees had acquired seniority by virtue of the fact
that their late employer/hauler had been signatory to a contract with Local 753, the
amount of seniority they could bring with them would be limited to 5 years; and,
if the taken-over employees had no seniority because their late employer/hauler had
not been privy to a bargaining relationship with Local 753, the current seniority, if
any, of such employees would be the subject of bargaining between the taking-over
dairy and Local 753.) Yet, as I understand it, Local 753 did not directly communi-
cate, let alone consult, either with the signatory haulers or with their employees on
the impending move.
Now, a look at the labor relations history of the subject is indicated. As pre-
viously explained, the use of independent contractors to haul milk to Chicago dairies
constituted a "problem" for Local 753 at least as far back as the early 1950s-a
problem taking the form of "outsiders doing work which could be done by employ-
ees of the dairies." The first overt action taken in connection with the problem was
the execution of the inter-local "treaty" whereunder (1) employees engaged in
bringing raw milk into Chicago would, for such work, enjoy the benefits of Local
°° Thus, I preclude myself from the possibility of finding-and no one has urged me so
to find-that , while Respondent Union may not have violated Section 8 ( e) since its mo-
tivation was not of an unlawful variety, one or more of the Respondent Dairies, because
their interpretations were within the area Congress sought to reach in Section 8(e), did
violate the Act. The lawfulness of 43-B stands or falls on Local 753 's motivation and
interpretation , as demonstrated by the evidence.
64 As indeed, some of them had been required to be under the "treaty " discussed elsewhere
herein.
68 Article 3[d]-see Appendix D hereof.
MILK DRIVERS UNION, LOCAL NO. 753 1477
753's collective-bargaining contract or that of their own local, whichever was more
favorable, and (2), with respect to such work, a specified proportion of involved
employees would be transferred from their respective Wisconsin locals to Local 753.
This falling short of solving the problem, Respondent Union raised the subject of
"outside" hauling with the Chicago dealers in 1959 or 1960. I shall not repeat my
findings in this respect, recited supra, except to note that Local 753 Agent Hag-
gerty's complaint about the situation , as voiced to Association Agent Gilmore, not
only pointed to the fact that the work was being done by outsiders ;' he also expressed
concern with the fact that the Wisconsin locals failed to enforce their own "inad-
equate" pay scales. Recognition of the problem found its way into the 1961 con-
tract in the form of the transportation clause above cited. Then, upon a raising of
the subject by Local 753, the International with which it and the Wisconsin locals
are affiliated gave assurances of support should Local 753 be successful in securing
a clause "appropriate" to handle the problem in its collective-bargaining contract.
And finally, in its 1963 and 1964 contracts, Local 753 was able to procure transpor-
tation clauses (articles 44 and 43-B respectively) -which clauses , I find, were
different ways of attacking the same problem at which the transportation clause of
the 1961 contract had been directed.
The evidence of the past practices with respect to the delivery of raw milk to the
Chicago processing plants, such as was presented,69 prompts me to make the follow-
ing findings . (1) At all times in the past, raw milk has been delivered to Chicago
processing plants of the involved dairies either by employees of the respective
dairies using transportation equipment of those dairies or by employees of independ-
ent haulers whose services have been procured and/or paid for either by the affected
dairy, the source of the milk supply, or a milkbroker or other middleman.7° (2)
Delivery methods have changed over the years; progressively-and there was con-
siderable interdependence of facilities and overlapping of stages-the hauling of raw
milk involved horse-drawn vehicles carrying milk in cans , railroad cars carrying
cans, motorized vehicles carrying cans, railroad tank cars carrying milk in bulk,
and increasingly larger tank trucks carrying milk in bulk. (3) The following are
instances in which dairies have used their own employees and their own equipment
to bring raw milk to their Chicago plants:
(a) Until 1936-presumably, since the commencement of its business at the
turn of the century-Respondent Bowman Dairy used 20 of its employees to
supply 45-50 percent of its needs.
(b) In 1936-37, Bowman continued this practice . In addition , Respondent
Borden Dairy used six of its own employees in filling raw-milk needs. (This
meant 26 employees of Chicago dairies were being used in discharging this
function.)
(c) From 1938 to February 1947, Bowman and Borden continued as above
described. In addition , Respondent , Hedlin's Dairy used the equivalent of one
employee to haul in canned milk. (Twenty-seven employees altogether.)
(d) From February 1947 to May • 1948, in addition to a continuation of the
above, Respondent Hunding Dairy used two employees on three tank trucks.
(Twenty-nine employees.)
(e) From May to December 1948 ( in addition to more of the same by Bow-
man, Borden , Hedlin's, and Hunding ), -Respondent Reuter 's Dairy used one
employee, an increase balanced by - Hedlin 's discontinuance , at the end of the
period, of the use of its one employee . (Twenty-nine employees at the beginning
of the period , 30 throughout, and 29 at its end.)
(f) The situation existing at the end of the last-described period continued for
the 2-year stretch beginning in December 1948, except that, during these 2
years, Borden bought larger transportation equipment and reduced the number
of employees used for hauling in milk from six to four . Thereafter, from
December 1950 'through 1951, the situation remained unchanged . (At the
w No records were made available by any party , and much of the applicable testimony
came in by way of stipulations as to what specified individuals would testify to if called
In making the findings about to be detailed , I have generally credited the testimony of
"live persons" where it was conflicted with that of "stipulated testimony " unless the
former, for independent reasons , overstrained credulity.
'm The deliveries referred to above include those shipments which have involved, at one
point or another, the services of rail carriers ; for, to the extent that shipments to Chicago
processing plants were made by rail, the final sfep in the chain of delivery was taken by
an employee of either a dairy or of an indebendent'hauler
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning of the period, 29 employees being used altogether; 2 years later, and
throughout the following years 27.)
(g) Throughout the year 1952, Hedlin's-which had discontinued using any
of its own employees 3 years earlier-again used one man hauling raw milk.
(Now, 28 employees.) It terminated this practice at the end of the year, how-
ever, and from 1953 into 1955, the situation was as it existed at the end of the
preceding period. (Twenty-seven employees.)
(h) In 1955 , Borden stopped using its own employees . (Now, 23 employees.)
(i) This was the situation until February 1962, at which time Hunding gave
the work now being performed by two of its employees to an independent
hauler. (Now, 21 employees.) During 1962, Bowman, replaced its 22 small
trucks with 7 large ones and cut the number of its employees on hauling
from 20 to 11. There were no further changes until April 1, 1964. (At the
end of 1962, and for 15 months thereafter, 12 dairy employees hauled raw
milk.)
(j) On April 1, 1964, just before negotiations for the 1964 contract com-
menced, Borden, which had been using independent haulers exclusively since
1955, resumed the practice of hauling in a portion of its raw milk by four of
its own employees. (Bringing the total in the industry up to 16.)
(k) On May 25, 1965, after basic agreement had been reached as to the terms
of the 1964 contract, Reuter's discontinued its own milkhauling, giving the
work previously done by one employee to a hauler. This resulted in the
situation as of the opening of the instant hearing. (Bowman using 11 employ-
ees and Borden using 4 employees, handling 15 and 60 percent of their needs,
respectively.)
Other than the above, all hauling of raw milk to Chicago milk processing plants
has been done by independent haulers.71 (4) Finally, although the evidence in the
record does not permit a specific finding as to the proportion of all employees
engaged in the delivery of raw milk to Chicago milk processing plants which is
represented by the instances noted above, it can be said, and I find, (a) that a sub-
stantial number of employees engaged the milkhauling operations, over the period
covered by the evidence, have been employees of individual haulers, and (b) that the
number of dairy employees engaged in the operations over the period has been
relatively small.72
Among the factors requiring consideration in arriving at the meaning of and
the motivation behind 43-B is the current situation with respect to raw-milk hauling
in Chicago. It can be summed up.briefly (details will be found in the subsection
on "The impact of 43-B," supra) by stating that no Chicago dairy now fills 100
percent of its raw-milk needs by using its own employees; that, in fact, only two of
them, Bowman and Borden, use their own employees for any part of their needs
(15 and 60 percent, respectively); and that, otherwise, raw milk is brought into
Chicago by employees of independent haulers.
The 1964 negotiations must be scrutinized for clues. I have found that, at such
negotiations, representatives of Local 753 did not explain, in specific terms, that the
proposed change in the transportation clause was designed to require the dairies to
use their own employees in the hauling of raw milk. Instead, to the extent that
they did volunteer any explanation-none was requested-one or another of them
described Local 753's objectives in pressing for 43-B in terms of its desires to "take
care of the transportation situation," to get the "transportation jobs back," to get
back "lost transportation jobs," to "protect our membership," and to "protect and
retain the Local's members."
71 In so finding , I have rejected testimony , either as irrelevant or as lacking in probative
value, that one or another dairy not here mentioned used or may have used its own em-
ployees at some time or times in the past or that one or another dairy which is mentioned
made greater use of its own employees than appears herein. As an example, certain of
Respondent Union's witnesses gave testimony about Bowman 's practices , which testimony
was based upon knowledge obtained from certain company records ; since, it became clear,
the records in question did not give the complete picture, the testimony based on them
cannot serve to support findings.
72 In absolute numbers, a great majority of the Chicago dairies have never used their own
employees ; but this is not dispositive of the issue. Although I cannot accept as evidence
counsel's statements that Bowman and Borden were the "giants " of the industry , there is
a clear implication in the record that they do constitute a major force. I have taken this
into consideration in making the finding noted in the text.
MILK DRIVERS UNION, LOCAL NO. 753 1479
And now we come to extra-negotiations statements about 43-B made by agents
of Local 753.
At-the hearing, I indicated to the parties that, if the language of 43-B were
unambiguous, I would not consider that evidence of statements about the require-
ment made by agents of Local 753 away from the bargaining table could be used
to alter the clear meaning derived from a reading of the language.73 But where, as
I have here found, the language is equivocal, I do regard such statements at least
as relevant background material to assist in arriving at both the motivation behind
and the interpretation of the words. As an example of revelatory statements,74
Local 753 President McNulty, in a telephone conversation with the president of
Respondent Willow Farms Dairy which took place early in 1964, asked what
arrangements had been made for "753 men" to haul milk from the country and
whether Willow Farms would take steps to promote membership in Local 753
among the employees of Willow Farms' independent hauler.75 During the 1964
negotiations, noting the importance of the transportation issue then part of those
negotiations, he again asked if Willow Farms "had made any plans." On June 2
or 3, 1964, after agreement on the terms of the 1964 contract had been reached,
McNulty again asked Willow Farms representatives whether any arrangements had
been made for the hauling of Willow Farms' milk by "753 personnel." In the
course of this conversation (company officials having alluded to the cost of equip-
ment), he pointed out that equipment could be rented, and (company officials hav-
ing protested that they should not become involved in what they considered to be a
jurisdictional dispute between Local 753 and their independent hauler's local) he
said that that Local 753 looked for compliance with their contract to Willow
Farms, a signatory, and not to the independent hauler, which was not a signatory;
and-an obvious allusion to 43-B's effective date-he suggested they "get busy."
Finally, on November 5, 1964, John Konecnik, a partner-owner of an independent
hauler who was party to the 1964 contract with Local 753, told McNulty he had
heard a "rumor" that Local 753 was seeking to force the Chicago dairies to buy
their own transportation equipment; McNulty's answer-that he was not at liberty
to talk on the subject, and that a hearing on the matter was now in progress 76
On or about June 18, 1964, Local 753 Vice President Carl Feigner reminded
Edward Ebbeson, an official of Respondent Ogden Dairy, that 43-B would go into
effect on August 15 and that Ogden should make arrangements to comply. In the
course of the conversation, he said that transportation equipment might be rented
rather than purchased but he made no reference to membership in Local 753 or to
the fact that compliance with 43-B might be achieved by the contracting of hauling
work to contractors with whom Local 753 had a collective-bargaining relationship.
In late May or early June 1964, Thomas Haggerty, secretary-treasurer of
Respondent Union, telephoned Lee Nevtipil, an official of an independent hauler
for whose employees Local 753 was bargaining agent . Haggerty asked Nevtipil if
he had any extra milkhauling equipment; receiving an affirmative answer , he said
there would be plenty of work available after August 15 (the effective date of 43-B)
and that Nevtipil's firm ought to solicit new business from dairies, to the extent its
equipment would permit; and, when Nevtipil hesitated, Haggerty suggested the
name of a specific official of a specific dairy whom he thought should be called.
On another occasion-early in August 1964-a representative of a "Local 753"
independent hauler called Haggerty to ask him if it were true that (Respondent
Dairy) Borden was moving outside the area and whether his firm could procure
some of that dairy's hauling work. Haggerty suggested that there would be some
"out-of-area" hauling but said that the hauler would itself have to establish contact
with Borden 77
78 See Puget Sound District Council, Carpenters ( U.S. Plywood Corp .), 153 NLRB 547,
footnote 1.
711 shall not here reproduce all the conversations enumerated in an earlier subsection
hereof . My omission of any such conversation in whole or in part indicates I do not regard
the omitted portion as having any bearing upon the question , one way or another.
76 He did not refer to the transportation clause which was part of the then existing
(1963) contract, the "daddy" of the 1964 clause I find, however, that his requests were
made , and were known to be made , in the context of the "problem " at which the trans-
portation clause of the 1963 contract , and those of the 1961 and 1964 contracts, were
directed.
76 November 5 was the second day of the instant hearing.
77 At the time of the hearing a move by Borden to Woodstock , Illinois , outside Local
753's geographical jurisdiction , was imminent.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite testimony to the contrary, I have found that Anthony Christiano, record-
ing secretary for Local 753, did not, at any time, engage in a conversation with a
dairy official in which, by word or by manner, he displayed a "lack of objection"
to the dairy's continuing to have its raw milk hauled by a "Local 753" hauler. His
conversations, to the extent they are revealed by the credited testimony, were not
concerned with 43-B.
Francis Gorney, Local 753 trustee, was involved in several pertinent conversations.
Late in May 1964, John Konecnik (earlier identified as an official of an inde-
pendent hauler which dealt with Respondent Union) received a copy of the 1964
contract for his signature. "Concerned with" the language of 43-B, he telephoned
Gorney, who was business agent for his firm, and asked whether he had anything
to worry about, pointed out that "we [sic: our employees] are 753 members."
Gorney-rather cryptically-reassured him, saying, "As far as you are concerned,
it's fine " Then, Konecnik specifically sought to pin down Gorney as to the effect
of 43-B on his firm; and, specifically, Gorney said there would be no effect-the
firm had been "Local 753" since its origin and was still "Local 753 in good stand-
ing"-there was nothing to worry about. Thus "reassured," Konecnik then asked
if he should solicit new business from dairies; "No," said Gorney, "You should
leave things as they are until this gets settled." On a later occasion, on Novem-
ber 5, 1964, the second day of the instant hearing, Konecnik told Gorney he had
heard rumors that all dairies would be forced to buy their own equipment, to which
Gorney replied, "Oh, you don't have to worry. You fellows are Local 753, and
its up in the air now. We're having a hearing now [and] we will know more
later."
In June 1964 Robert Turner, Local 753 trustee and business agent for Respond-
ent Seeley Dairy, reminded Thomas Rusecka, an official of that dairy, that, under
the contract, Seeley's own employees would have to do Seeley's milkhauling and
that those hired to do such work would have to be members of Local 753. When
Rusecka protested that the persons now hauling for Seeley, the employees of its
independent haulers, were already members of Local 753, Turner refused to be
drawn into a discussion of the problem; he disclaimed knowledge of any solution.
This detailed exposition is indicative of my belief that one must view the total
picture to find the solution to the puzzle.78 In each area discussed above there are
compelling factors pointing one way or the other, but to latch on to any of these
and ignore the whole is to elevate form above substance.79 Now, viewing the
whole, and on what I am convinced is a fair preponderance of the credible evidence,
I conclude and find that Local 753's motivation in formulating, proposing, and
pressing for the 1964 provisions of which the 43-B requirement is composed was
its desire to enlarge the job opportunities of its membership, either by the expan-
sion of the amount of work to be performed by employees in the bargaining units
or bargaining units for which it presently was bargaining representative or by the
expansion of its organizational coverage to include bargaining units of employees for
which it was not now the bargaining representative; in other words, alternatively, it
sought to enlarge its membership among employees of employers with whom it now
bargained or among employees of employers with whom it did not now bargain.
Under the circumstances prevailing at the 1964 negotiations, I do not fault Local
753's representatives for their failure fully to "explain" the proposed transportation
provisions to employer representatives, but I believe that Agent Haggerty's 'volun-
teered references to protecting "our membership" and to "protect[ing] and maintain-
78 See Milk Drivers and Dairy Employees Union, Local No. 546 (Minnesota Milk Com-
pany ), 133 NLRB 1314, 1316-17.
79 In this respect, it should be said here that I adopt Respondent Union's contention-
not seriously contested by the other parties-that although 43-B, whatever interpretation
is put upon it, calls for employers ( dairies ) to cease doing business with other persons
(haulers) and, therefore, falls within the literal proscription of 'Section 8(e), the pro-
vision is not thereby necessarily violative of the section. As urged by Respondent Union,
"[L]iteralism is not the touchstone for construction of Section 8(e). The question rather
is whether a particular agreement is fairly within the intendment of Congress to do away
with the secondary boycott." 1AM 9 (Greater St. Louis Automotive Trimmers) v.
N.L.R.B, 114 U.S. App.D.C. 287, 290, 315 P.2d 33, 36 (1962). In Section 8(e), the
phrase "cease doing business with any other person" must be read 'with the implicit con-
dition that it be accomplished by secondary, not by primary, means Schultz Refrigerated
Service, Inc, 87 NLRB 502, 504; see also Local 761, Electrical Workers v. N.L R.B., 366
U.S. 667, 672.
MILK DRIVERS UNION, LOCAL NO. 753 1481
[ing] the Local's members" are fraught with significance; so are Agent McNulty's
questioning of a dairy representative, in June 1965, as to whether the latter had made
arrangements for having his milk hauled by "Local 753 personnel," his references,
on the witness stand, to the "protection of members," and his equation-also on the
witness stand-of the term "bargaining unit" with "every member of our organiza-
tion." All these quotations take on added meaning in the light of certain background
facts: In connection with the milkhauling "problem"-which was at least 15 years
old, the only new twist being the mandatory character of the applicable provisions in
the 1964 contract-Haggerty's original complaint that the Wisconsin local's pay
scales (1) were inadequate and (2) were not policed; the 1961-62 "treaty" whereun-
der a transfer of union memberships was considered a remedy; and McNulty's can-
did testimony at the hearing that, absent objections by the International, a similar
transfer action would now be a solution acceptable to Local 753. And finally, I find
particularly telling McNulty's request of a dairy representative, made just prior to the
1964 negotiations, for help in "promoting Local 753" among the employees of that
dairy's independent hauler, Haggerty's late-May or early-June 1964 suggestion to a
"753" independent hauler that, after August 15 there would be plenty of hauling
work available; and Agent Gorney's statement to a "753" hauler, respecting 43-B,
that that hauler was "753 in good standing" and had "nothing to worry about." In
sum, I am convinced, and find, that local 753 was determined that the hauling of raw
milk into its jurisdictional territory should be performed only by employees belong-
ing (either presently, or, under a union-security arrangement, within 31 days) to
Local 753, whoever their employer might be.80 The ambiguity now stands resolved:
43-B means that signatory dairies must not subcontract milkhauling to any person
not signatory to a contract with Local 753.81
The above conclusion, and the facts upon which it is based, must be viewed in
the light of Respondent Union's strongly-pressed contention that 43-B is intended
only to constitute, and in effect only constitutes, a ban on the subcontracting of
bargaining unit work. Citing Professors Cox 82 and Aaron,83 it argues that this
objective and this result are permissible under Section 8(e).
The short answer, of course, is that we have here a qualified ban on subcontract-
ing: milkhauling may not be subcontracted except to persons who use members of
Local 753 as employees. It is well settled that such a subcontracting ban runs
afoul of Section 8(e) since the limitations on subcontracting are based upon second-
ary objectives.84
Moreover, I cannot permit the statement that a total ban on subcontracting, just
because it is total, falls outside the reach of Section 8(e), to remain unquestioned.
80 In so finding , I have given full consideration to the facts that Local 753 agents did,
on occasion, tell dair' representatives that 43-B meant that milkhauling would have to
be done by the dairies' own employees ; although this runs counter to my finding, I regard
it as outweighed by the evidence to the contrary. Moreover, in arriving at the conclusion
set forth above, I expressly do not rely (since I regard them as lacking probative value)
on the facts that Respondent Union agents frequently reminded dairy representatives of
43-B's effective date or that the potential impact of compliance therewith would be sub-
stantial. Nor, upon a full consideration, do I rely on the fact that Local 753 did not
consult with those "753" employers and those employee-members whose livelihoods would
be in jeopardy under the Local's asserted interpretation of 43-B , it is entirely possible
that (assuming Local 753's objective to be as stated) its agents would have avoided such
consultations
811 speak only of the hauling of raw milk into Chicago processing plants, even, though,
conceivably, 43-B might also be applied to the transporting of finished products from or
between plants. In conformity with the issues raised by the pleadings, I limited the
testimony educed at the hearing to that concerning employees when and if they were
engaged in carrying raw milk by tank truck, and no conclusion set forth herein should
be construed as applying to any other operations
82 Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 Minn.
L. Rev. 257 (December 1959).
83Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73 Harv. L
Rev. 1086 (April 1960).
84 Local 78, Amalgamated Lithographers of America, 130 NLRB 968, enfd 307 F 2d
20 (CA. 5) ; Local No. 17 of the Amalgamated Lithographers of America (Ind.), 130
NLRB 985, enfd. 309 F 2d 31 (C.A 9) ; Truck Drivers & Helpers Local Union No. 728
(Brown Transport Corp.), 140 NLRB 1436, 1438, enforcement denied for reasons not perti-
nent herein; Raymond C. Lewis, et at., UMW (Arthur J. Galligan), 148 NLRB 249
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is true, as Cox points out, that
[A] restriction upon subcontracting which seeks to protect the wages and job
opportunities of the employees covered by the contract, by forbidding the
employer from having certain kinds of business done outside his own shop, is
quite different in purpose and effect from blacklisting certain employers or
groups of employers because their products or labor policies are objectionable
to the union.85
This is quoted by Professor Aaron, with the comment that "the problem is not
always that simple." Conceding the general validity of the statement, he sets up a
hypothetical example in which a union (in pressing for a provision banning sub-
contracting) is motivated by both the desire to increase its members' work oppor-
tunities and the wish to punish a subcontractor who had been actively resisting the
same union's efforts to organize its employees. Then-rather surprisingly, consider-
ing his introductory remark-Aaron says that, if this agreement were held illegal,
[I]t would tip the scales unreasonably and far too heavily in favor of the sub-
contractor in its competitive struggle with the union. As long as the union can
show that the subcontracting provision will directly benefit employees covered
thereby, its other motives, as well as the incidental effects of such an arrange-
ment on outsiders, should not be made the basis for declaring the agreement
illegal.86
Both Cox and Aaron, Respondent Union points out, were cited with approval by
the Court of Appeals for the District of Columbia in the Orange Belt District Coun-
cil case 87
While I have no quarrel with the doctrine that "the incidental effects" of a sub-
contracting ban should not serve to illegalize the ban if it is otherwise lawful, the
statement that a union's "other motives" are likewise immaterial appears to be too
broad. Where, as here, the objective of the arrangement will be fulfilled either by
banning all subcontracting or by limiting subcontracting to organized subcontrac-
tors, it strikes me that we have the secondary motivation which Section 8(e) is
designed to eliminate.88 I find that, whether or not 43-B be called a ban on sub-
contracting, and whether it be a complete or a limited ban, it encompasses the "hot
cargo" aspects at which Section 8(e) was directed.89
(In view of the above, it becomes unnecessary to pass on the composition of the
workgroup which, assertedly, Respondent Union sought to "protect" by its insistence
on 43-B, and on the question of whether, for a group thus composed, Respondent
Union could lawfully impose safeguards against subcontracting. Against the pos-
sibility, however, of a remand to me at a time when the matter will not be fresh
in my mind, I here state my conclusions in this respect. The parties-perhaps
guided to some extent by my questions put at the hearing-cast the question in
terms of the appropriateness of one or another bargaining unit. Respondent Union
took the position that the appropriate unit involved consists of all transportation
employees-whether van or tank truckdrivers-of the Chicago dealers-dairies,
es Cox, supra, 273
sa Aaron, supra, 1119
sr Orange Belt District
The emphasis is supplied.
Council of Painters No 48 v. N.L R B , 328 F 2d 534, on this
point remanding 139 NLRB 383.
58 Automotive, Petroleum & Allied Industries Employees Union Local 618, 134 NLRB
1363, enfd. sub nom District No 9, International Association of Machinists (Greater St.
Louis Automotive Trimmers & Upholsters Assn.) v N.L R.B , 315 F 2d 33 (CAD C.) ;
Teamsters 890, 137 NLRB 641 ; Joint Council of Teamsters No 38 and Arden Farms Co
(California Association of Employers), 141 NLRB 341 ; Milk Drivers and Dairy Employ-
ees, Local Union No. 537 (Sealtest), 147 NLRB 230. If an objective is unlawful, the
legality of other objectives does not insulate conduct from Section '8(e). N.L R B. v
Denver Building and Construction Trades Council (Gould & Preisner), 341 U.S 675;
N L.R B. v. Local 74, United Brotherhood of Carpenters & Joiners of America, 341 U S.
707; also, see Amalgamated Meat Cutters & Butcher Workmen, Local 88 (Swift & Com-
pany) v. N L R B , 237 F 2d 20, 25.
89I reject Respondent Union's contention that the General Counsel's two-pronged attack-
(1) big assertion that Local 753, by means of 43-B, sought to eliminate all independent
haulers in favor of hauling by dairy employees because the latter group belonged to the
Local, and (2) his assertion that Local 753 merely sought to eliminate non-753 haulers-
contained its own death wound because of its inconsistency If my reading of the evidence
is correct, Local 753 sought one or the other of these objectives-and which one was
immaterial.
MILK DRIVERS UNION, LOCAL NO. 753 1483
master vendors, and haulers-who have traditionally accepted and considered them-
selves bound by the contract negotiations between Respondent Union and Respond-
ent Association; for all practical purposes, of all truckdrivers of the employers in
the area-wide dairy industry. The remaining Respondents, the General Counsel,
the Charging Party, and the Party in Interest contended that the transportation
employees of each signatory to the 1964 contract constitute a separate bargaining
unit or, in the alternative, that the largest unit which might be appropriate here
consists of the transportation employees of the members of the Association who
are signatories to the 1964 contract(s). I am inclined toward acceptance of the
position last urged, and, if I deemed it necessary, I would find that the truckdrivers
of Respondent Dairies constitute a single appropriate bargaining unit.90 But in
my view, this would not serve to resolve the case against Respondent Union. For
the subcontracting ban here (to the extent it was primarily aimed at the dairies)
was designed to protect the work opportunities of precisely this unit; and it matters
not that the effect of compliance with the ban would have an immediate effect on
a part of the unit only.91 Moreover, I am persuaded, as urged by Local 753, that
the composition of the "unit"-the work unit or employee group-the protection
of whose employment opportunities is involved in a subcontracting ban need not
necessarily be governed by the principles involved in the Board's representation
case law. Clearly (eliminating other elements of unlawful activity), the legality
of efforts to protect the work opportunities of a group of employees should depend
on the logical applicability of the conduct to that group, not upon the appropriate-
ness of that group for collective-bargaining purposes 92 On this reasoning (again
assuming no secondary motivation) the subcontracting ban here would not be defec-
tive even if the General Counsel's alternative position-that each dairy's employees
constitute a separate bargaining unit-should prevail; the "protection," crossing
normal bargaining unit lines, would be properly applicable to a logically protectable
group of employees.
(It also becomes unnecessary to pass on another question, or series of questions,
to which the parties devoted labored attention: In a contract limiting subcontract-
ing, what kind of work can be covered? Is there a difference in the lawfulness of
clauses which "retain" work presently being performed by the "protected" group
and those which "recapture" work which they did at one time? If there is no
difference, what kind of a history is admissible/necessary to establish work as
"recapturable?" Further, may a subcontracting limit be placed on work never
theretofore performed by the "protected" group-i.e., can a subcontracting ban be
used for the "acquisition" of work? Once again, I here set forth what I consider to
be the applicable principles, for consideration in the event the question may be
reached at higher levels. It should now be evident that, to run afoul of Section
8(e), a subcontracting clause must contain within it secondary-employer aspects;
absent these aspects, insofar as Section 8(e) is concerned, a subcontracting ban
could cover any type of work. But secondary objectives may be found in the fact,
if it is a fact, that the "protection" sought is that of a union's members generally
rather than those of the immediately involved group; 93 and an examination of the
nature and history of the work the subcontracting of which is prohibited, vis-a-vis
the work being performed by the involved employees, may shed light on whether,
in fact, secondary objectives exist. For example, an agreement reserving to an
employee unit work which does not now exist and which that unit had never per-
formed and was not equipped to perform, would cry for further scrutiny. But
where, as here, a particular phase of truckdriving work is reserved for truckdrivers,
I read nothing sinister in the fact that the past involvement in such work of these
drivers, or most of them, was insubstantial, remote in point of time, or non-
existent. The test is, or should be, whether the work is "fairly claimable" by the
00 It is unnecessary here to restate the facts earlier recited which lead me to this con-
clusion Suffice it to say that bargaining-for the dairies and for the rest of the industry-
Is jointly conducted and leads to identical contracts ; but that the interests patently com-
mon to the dairies ( which led up to their formal combination ) set them, as a group, apart
from the master vendors and the independent haulers.
91 See Raymond 0. Lewis , et al v N.L R B., 350 F 2d 801 (C A D.C .), on this point
remanding to the Board.
09 For a discussion of the applicability-or, rather , nonapplicabllity-of strict repre-
sentation case principles in a case involving an employer lockout, see Weyerhaeuser Com-
pany, 155 NLRB 921.
05 See Teamsters, Chauffeurs, Warehousemen 6 Helpers Local Union No. 631 ( Reynolds
Electrical and Engineering Co., Inc. ), 154 NLRB 67.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in question,94 one measure being whether they have the necessary skills
and experience.95 "A union has always been free to bargain for the expansion of
the employment opportunities in the bargaining unit." 96 Were this factor the
sole determinant in the instant case, the complaint would be dismissed, since
Respondent Dairies' transportation employees had the skills and the experience
needed for hauling raw milk.)
I have found that the Respondent's 1964 contracts, insofar as they contain the
43-B requirement, contravene Section 8(e) of the Act. Respondents Association
and Dairies, in effect conceding this, ask that no remedial order be issued against
them because they entered into the contracts only under threat of a strike by
Respondent Union. This argument is rejected because: (1) the testimony educed
does not support the factual contention which is the basis for the argument; (2) it
is immaterial that, as asserted, the Respondent employers entered into the contracts
under duress; and (3) an effective remedy calls for action by all contract-
signatories who are parties to this action.
The complaint alleges, as separate violations of Section 8(e), acts of specified
agents of Local 753 in seeking to enforce and to give effect to 43-B. Particulariz-
ing, it cites conduct of Local 753's president, McNulty, on April 27, 1964; of its
vice-president, Feigner, on June 18 or 23, 1964; of its recording secretary, Chris-
tiano, on or about June 25, 1964; of its trustee, Gorney, on or about May 25 and
on November 5, 1964; and of another trustee, Turner, on or about June 15 or
25, 1964.
I have earlier made findings as to the involvement of all of these-plus the
secretary-treasurer of Local 753-to the extent such involvement was revealed by
the evidence offered; 97 and, as noted, I have given full consideration to such
involvement as background in interpreting 43-B. But, in this record, I find none
of this conduct to add up to the entry into an agi cement prohibited by Section
8(e).98
Upon the foregoing factual findings and conclusions, I come to the following:
CONCLUSIONS OF LAW
1. Respondent Association and each of the Respondent Dairies listed in Appen-
dix A hereto are employers engaged in commerce within the meamng of Section
2(6) and (7) of the Act.
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
3. Articles 43-B and 45 of the 1964-67 contracts between Respondent Associa-
tion and Respondent Dairies on the one hand and Respondent Union on the other
are agreements prohibited by Section 8(e) of the Act.
4. Respondent Association, Respondent Dairies, and Respondent Union, by
entering into and giving effect to Articles 43-B and 45 of the 1964-67 contracts,
have engaged in unfair labor practices, in violation of Section 8(e) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Except for the above, none of the Respondents herein has engaged in unfair
labor practices as alleged in the complaint herein.
THE REMEDY
Having found that the Respondents herein have engaged in certain unfair labor
practices, I shall recommend that they be ordered to cease and desist therefrom
94 Meat and Highway Drivers , Dockmen, Helpers and Miscellaneous Truck Terminal Em-
ployees, Local Union No. 710 v. N.L.R B. (Wilson if Co ), 335 F.2d 709 (C.A.D C.).
e5 Ibid.
°B "Subcontracting Clauses and Section 8(e) of the National Labor Relations Act," 62
Mich L Rev. 1176, 1190 (1964).
B1 At the close of the General Counsel's case, no evidence having been presented as to
Christiano, I granted a motion to dismiss allegations of the complaint based upon acts
attributed to him. Subsequently, I received testimony bearing on his conduct but only
for its value, if any, in illuminating other aspects of this case.
8°And, assuming without finding, that such conduct, or some of it, may have amounted
to threatening, coercing, or restraining a person in an industry affecting commerce, with
the object of forcing or requiring an employer to enter into an agreement prohibited by
Section 8(e), I shall make no findings of any 8(b) (4) violations in the absence of an
8(b) (4) charge, in the face of the General Counsel's repeated disclaimers of attacks in
this direction, and in view of the point's not being fully litigated.
MILK DRIVERS UNION, LOCAL NO. 753 1485
and to take certain affirmative action in order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case, and pursuant to Section 10(c) of the Act,
I hereby issue the following:
RECOMMENDED ORDER
A. Associated Milk Dealers, Inc., and various of its member dairies listed in
Appendix A hereto, all of Chicago, Illinois, their officers, agents, successors, and
assigns, and/or (if applicable) their individual or partnership proprietors, shall:
1. Cease and desist from entering into, enforcing , or giving effect to articles
43-B and 45 of the 1964-67 contracts between any of them and Milk Drivers
Union, Local No. 753, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, whereunder any of them ceases or refrains, or
agrees to cease or refrain, from doing business with any other person, in violation
of Section 8(e) of the Act.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Each posts at its processing plant or plants located in and around Chicago,
Illinois, copies of the attached notice marked "Appendix E," 99 the name of the
posting employer to be filled in at the appropriate blank space therein. Copies of
such notice, to be furnished by the Regional Director for Region 13, after being
duly signed by an authorized representative of the respective Respondent Associ-
ation or Dairy and (as directed below) by an authorized representative of Respond-
ent Union Local No. 753, shall be posted immediately upon receipt thereof and be
maintained for a period of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that such notices are not altered, defaced, or
covered by any other material.
(b) Each, through its authorized representative, sign copies of the notice described
in paragraphs A, 2, (a) of this Recommended Order, sufficient for posting as directed
therein.
(c) Notify the Regional Director for Region 13, in writing, within 20 days from the
receipt of this Decision, what steps have been taken to comply herewith.ioo
B. Milk Drivers Union Local 753, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from entering into , enforcing , or giving effect to articles
43-B and 45 of the 1964-67 contracts between it and Associated Milk Dealers,
Inc., or members of that Association, whereunder either that Association or any of
its members ceases or refrains or agrees to cease or refrain from doing business
with any other person, in violation of Section 8(e) of the Act.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Through its authorized representative, sign copies of the notice described
in paragraph A, 2, (a) of this Recommended Order, sufficient for posting as directed
therein.
(b) Post at its business offices and meeting halls in Chicago, Illinois, copies of
the same notice. Copies of such notice, to be furnished by the Regional Director
for Region 13, after being duly signed by an authorized representative of Respond-
ent Local 753 and (as directed above) by an authorized representative of Respond-
ent Association and its member dairies, shall be posted immediately upon receipt
thereof and be maintained for a period of 60 consecutive days thereafter, in con-
spicuous places, including all 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.
w In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Recommended Order is 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."
100 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 13, in writing, within
10 days from the date of this Order, what steps have been taken to comply herewith."
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Notify the said Regional Director , in writing, within 20 days from the receipt
of this Decision , what steps have been taken to comply herewith.'°°
APPENDIX A
Independent
Batavia Dairy Company
Beatrice Food Company
The Borden Company
Bowman Dairy Company
Country's Delight Milk Prods.
Cremix Company
Dean Milk Company
Downers Grove Cloverleaf
Elgin Milk Products
Elmhurst-Cloverleaf Dairy
Hamilton Dairy Company
Hawthorn-Mellody Farms
Hedlin's Dairy Company
Honey Hill Creamery
Hunding Dairy Company
Kraml Dairy Company
Respondent Dairies
Ludwig Milk Company
Meadowmoor Dairies
Mid-City Dairy
Modern Dairy Company
Ogden Dairy Company
Pinecrest Mar-Vel Dairy
Pioneer Dairy
Pure Farm Dairy
Robinson Dairy
Rodewald Farms Dairy
Reuter's Dairy Company
Seeley Dairy Company
Special Dairy Products Corp.
Sidney Wanzer & Sons, Inc.
Western-United Dairy Co.
Willow Farms Products
Dairy
APPENDIX B
Excerpts from 1963-64 Contract
ARTICLES OF AGREEMENT, BETWEEN ------------------------------
milk dealer, party of the first part, hereinafter called the Employer, or Processor,
and the MILK DRIVERS' UNION LOCAL 753, I.B. of T., C., H. & H. of A.,
party of the second part, hereinafter called the Union.
Article 1. For all types of work coming under the present jurisdiction of the
Union, the Employer shall hire members of the Union or those who will become
members on the thirty-first [31st] day of employment ... .
Article 3. Seniority in layoffs .. . .
Classifications:
[a] Department No. 1-Milk sales delivery, .
[b] Department No. 2-Transportation men, which includes tank, truck, and
van drivers. Seniority shall apply to all such men employed by the Employer.
[c] Consolidations and mergers: Company seniority by departments shall govern
layoffs within the department affected and [sic: by] consolidations of branches
owned by the Employer. If the Employer acquires any dairy business by purchase
or merger, employees of the acquired business shall enjoy five years' departmental
seniority, provided he has been employed by that company at least five years, inso-
far as layoffs are concerned, unless this shall be agreed by both parties to be detri-
mental to the business. Where the business so acquired has non-union employ-
ees, or employees who have been members of the Union for less than five years,
the question of seniority for these employees is to be agreed upon between the
Employer and the Union, parties to this agreement. This article applies to all
consolidations or mergers since 1941.
* * * * * *
Article 16. In the case of a lock-out or strike of any Union, it shall not be
considered a violation of this Agreement for the members of this Union to refuse
to deliver goods where such controversy is on, if in compliance with Federal and
State laws.
Article 21. Should any member of the Union be expelled or suspended by the
Union, the Employer agrees to discharge such person within fifteen [15] days
after receiving written notice from the officials of the Union, if in compliance with
the law.
Article -41. [Contains wage scale for year beginning May 1 , 1963.]
*
* * * * * * *
Article 43. [With respect to truckers , van and truck men, sets forth work-week
and work day; stipulates when overtime is to be paid; calls for employees to punch
in and out ; and provides for selection of runs and starting times on basis of
seniority.]
MILK DRIVERS UNION, LOCAL NO. 753 1487
Article 44. . . . [Fifth paragraph] Transportation division shall not be reduced
from its present status and immediate steps shall be taken to restore these jobs in
all plants covered by this Agreement. Substantial progress shall be shown by
August 15, 1963.
Article 45. It shall not be a violation of this Agreement for members of Local
753 to refuse to work for an Employer at a plant where any person or persons
delivering milk or dairy products to or from such plants are not members of Local
753, or refuse to become members of Local 753 on the thirty-first [31st] day, if
in compliance with State and Federal laws.
Article 49. This Agreement shall take effect as of May 1, 1963, and shall con-
tinue in effect until May 1, 1964 and from year to year thereafter [in the absence
of timely written notice to cancel or modify] ... .
APPENDIX C
Excerpts from Written
Proposals and Counterproposals for
Changes in 1963 Contract
[Article numbers are keyed to the 1963 contract]
1. Union's proposed changes as of April 10, 1964:
Article 44 .. .
3rd Paragraph [Sic: 4th paragraph]. Add-"All dealers must employ
members of Local 753 to operate their equipment."
4th Paragraph [Sic: 5th paragraph]. Eliminate.
Article 49. Contract to be effective for one year until May 1, 1965.
H. Dealers' proposals of April 17:
A. "Proposals for changes"
Article 261 It is the belief of the dealer group that these articles are illegal.Article 211
Article 45. Dealers will propose changes in this article before conclusion
of negotiations.
Article 49. This Agreement shall take effect May 1, 1964, and shall con-
tinue in effect until May 1, 1967.
B. "Proposed new articles"
1. Compulsory retirement at age 65.
* * * * * * *
5. New and appropriate [wages and] conditions covering motor trans-
portion (Articles 41, 43, and 44).
III. Dealers' proposals of April 24:
A. "Proposals for changes"
[Similar to II A, supra, with some modifications. References to Articles
16 and 21 are omitted. References to Articles 45 and 49 are identical].
B. "Proposed new articles"
[Similar to II B, supra, with some modifications. References to items 1
and 5 (re-numbered 4) are identical.]
APPENDIX D
Excerpts from 1964-67 Contract
ARTICLES OF AGREEMENT, BETWEEN -----------------------------
milk dealer , party of the first part, hereinafter called the Employer , or Processor,
and the MILK DRIVERS ' UNION, LOCAL 753, I.B. of T., C., H. & H. of A.,
party of the second part, hereinafter called the Union.
Article 1. For all types of work coming under the present jurisdiction of the
Union, the Employer shall hire members of the Union or those who will become
members on the thirty-first [31st] day of employment ... .
* * * * * * *
Article 3. Seniority in layoffs . . . .
Classifications:
[a] Department No. 1-Milk sales delivery, .
[b] Department No. 2-Transportation men, which includes tank , truck, and van
drivers. Seniority shall apply to all such men employed by that Employer.
[c] Consolidations and mergers : Company seniority by departments shall gov-
em layoffs within the department affected and [sic : by] consolidations of branches
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owned by the Employer. If the Employer acquires any dairy business by purchase
or merger, employees of the acquired business shall enjoy five years' departmental
seniority, provided he has been employed by that company at least five years, inso-
far as layoffs are concerned, unless this shall be agreed by both parties to be detri-
mental to the business. Where the business so acquired has non-union employees,
or employees who have been members of the Union for less than five years, the
question of seniority for these employees is to be agreed upon between the
Employer and the Union, parties to this agreement. This article applies to all con-
solidations or mergers since 1941.
*
Article 16. In the case of a lock-out or strike of any Union, it shall not be con-
sidered a violation of this Agreement for the members of this Union to refuse to
deliver goods where such controversy is on, if in compliance with Federal and
State laws.
* * * * * * *
Article 21. Should any member of the Union be expelled or suspended by the
Union, the Employer agrees to discharge such person within fifteen [15] days after
receiving written notice from the officials of the Union, if in compliance with the
law.
* * * * * * *
Article 41. [Contains wage scale for years beginning May 1, 1964, May 1,
1965, and May 1, 1966.]
Article 43-A. [Identical in all relevant respects with Article 43 of 1963 con-
tract. Treating with truckers, van and truck men, sets forth workweek and work
day; stipulates when overtime is to be paid; calls for employees to punch in and
out; and provides for selection of runs and starting times on basis of seniority.]
Article 43-B. [Comparable with Article 44 of 1963 contract] . [Fourth
paragraph, last two sentences:] All Dealers must employ members of Local 753 to
operate the transportation equipment. The final date for full compliance shall be
August 15, 1964.
Article 44. Compulsory retirement at 65, if a member is entitled to pension
benefits, shall become effective March 1, 1967. If the member is not entitled to
pension benefits, he must retire as soon as he has had 25 years of service thereafter.
Article 45. It shall not be a violation of this Agreement for members of Local
753 to refuse to work for an Employer at a plant where any person or persons
delivering milk or dairy products to or from such plants are not members of Local
753, or refuse to become members of Local 753 on the thirty-first [31st] day, if
in compliance with State and Federal laws.
* * * * * * *
Article 49. This Agreement shall take effect as of May 1, 1964, and shall con-
tinue in effect until May 1, 1967 and from year to year thereafter [in the absence
of timely written notice to cancel or modify] ... .
APPENDIX E
NOTICE
Pursuant to the 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 give notice that:
WE WILL NOT enter into, or enforce, or give effect to Articles 43-B and 45
of the 1964-67 contracts between the undersigned whereunder any employer
ceases or refrains, or agrees to cease or refrain, from doing business with any
other person in violation of Section 8(e) of the Act.
Employers.
Dated------------------- By-------------------------------------------
(Representative) (Title)
MILK DRIVERS UNION, LOCAL No. 753, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
CURLEY PRINTING COMPANY, INC. 1489
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.
If employees or union members have any question concerning this notice or com-
pliance with its provisions , they may communicate directly with the Board 's Regional
Office, 881 U.S. Courthouse and Federal Office Building , 219 South Dearborn Street,
Chicago, Illinois 60604 , Telephone 828-7597.
Curley Printing Company, Inc. and Printing Pressmen Local 37,
International Printing Pressmen and Assistants' Union of
North America, AFL-CIO and Nashville Bookbinder Local 83,
International Brotherhood of Bookbinders , AFL-CIO. Cases
26-CA-2109 and 213g. June 27,1966
DECISION AND ORDER
On March 16, 1966, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices as alleged in the complaint and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He further found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that such allegations be
dismissed. Thereafter, the General Counsel filed exceptions 1 to the
Decision 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 powers in connection with these cases 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 exceptions and brief, and the entire record
in these cases, and hereby adopts the findings,2 conclusions, and rec-
ommendations of the Trial Examiner.
i These exceptions were limited to the Trial Examiner 's finding that Respondent had not
unlawfully subcontracted work normally performed by its employees , and to the recom-
mended remedy with respect to employees Barbara Beasley , Katherine Manners, and Mary
Smith. The General Counsel subsequently filed a motion to delete the first of the afore-
said exceptions . We hereby grant the motion to delete. As to the second exception, we
find the recommended remedy and notice provisions adequate ; they are essentially the same
as proposed by the General Counsel.
2 In the absence of exceptions , we adopt pro forma the Trial Examiner 's finding and con-
clusion that Respondent did not violate Section 8 ( a)(1) of the Act by the alleged threat
of plant closure by John Curley on June 11 , 1965. Similarly adopted are the Trial
Examiner 's findings and conclusions that Respondent had engaged in conduct unlawful
under the Act.
159 NLRB No. 123.
243-084-67-vol. 159-95