United Dairy Workers, Local No. 83, Etc.

National Labor Relations Board - Board Decisions

Apr 8, 1964

146 N.L.R.B. 716 (N.L.R.B. 1964)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act :
All production and maintenance employees at the Employer's
Trenton, Illinois, plant, excluding office clerical employees, profes-
sional employees, guards, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
United Dairy Workers, Local No. 83, Retail, Wholesale and
Department Store Union , AFL-CYO [Sealtest Foods Division,
National Dairy Products Corporation ] and Arthur Elias.
Case No. 7-CC-221. April 8, 1964
DECISION AND ORDER
On June 18, 1963, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, exceptions and briefs were filed by the General Counsel and
the Charging Party. A brief in support of the Intermediate Report
was filed by the Respondent.
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 hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs; and the entire record, and
adopts the findings, conclusions, and recommendations of the Trial
Examiner.'
[The Board dismissed the complaint.]
MEMBER LEEDOM , dissenting :
I disagree with my colleagues' conclusion that the complaint in this
proceeding should be dismissed.
The issue herein is whether an object of the Respondent's conduct is
one proscribed by Section 8 ('b) (4) (B) of the Act. If so, the Respond-
ent's violation is clear.
Sealtest sells and distributes milk and other products through its
own employees and through independent distributors. Sealtest's em-
ployees 'are represented by the Respondent. Most of Sealtest's sales
1 Contrary to our dissenting colleague , we find in agreement with the Trial Examiner
that the record clearly shows Respondent 's conduct was lawful primary activity which had:
as its purpose the protection of unit work . See the majority opinion in Milk Wagon
Drivers, etc., et at (Drive-Thru Dairy, Inc ), 145 NLRB 445
146 NLRB No. 8.8.
UNITED DAIRY WORKERS, LOCAL NO. 83, ETC. 717
are made through the independent distributors and those of its em-
ployees who are wholesale routemen; some occasional or sporadic sales
to retailers are, however, made at its dock.
During a strike against Borden, u competitor of Sealtest, the Re-
spondent and Sealtest agreed that sales to Borden's customers could be
made at Sealtest's dock. When that strike ended, two of Borden's
former customers, retailers Rom's and Ogden, continued to buy from
Sealtest at its dock. The Respondent objected, claiming the continua-
tion of such sales violated its contract with Sealtest and that a con-
tinuation of the practice of selling to retailers at the dock would
jeopardize the jobs of the routemen whom it represented. When Seal-
test refused to discontinue such sales, the Respondent instructed the
local union committee to stop such sales at the dock and made a
threat to Sealtest that sales would be stopped; subsequently, in con-
formity with this threat, the Respondent induced and physically pre-
vented Sealtest's employees from making sales and deliveries to Rom's
,and Ogden. The Respondent's expressed position was that it would
have no objection if Sealtest could work out some other method of
making sales to these customers, but it was not going to permit such
sales to be made at the dock.
On these facts, I would find that the alleged violation has been
proven. The Board has held that it is sufficient, to support a finding
that Section 8(b) (4) (B) has been violated, that an object of the un-
lawful conduct be, as here, a change in method of doing business; it
is not necessary that a complete cessation of business be sought.2 Fur-
ther, such a change need not be the only, or even the principal, object;
it is enough that as here it be an object.' In concluding, despite these
well-established principles, that the Respondent did not violate the
Act, my colleagues have, in my opinion, seriously erred.
This is not a case in which the Respondent was in fact seeking to
redress a breach of the contract between it and Sealtest. Significantly,
there is nothing in that contract applicable to this situation. The
contract in no way prohibits the sale of milk at the dock ; and although
it requires Sealtest to pay commissions to its employee-drivers with
respect to emergency sales at the dock to regular route customers, that
provision is inapplicable here because Rom's and Ogden were at no
time regular route customers. For this same reason, because route
delivery to Ram's and Ogden was at no time work of employees
within the Respondent's unit, and because there is no evidence that
work presently performed by the employee-routemen was in any
way endangered, the Respondent's conduct did not have, as its pur-
2Retail Clerks Union, Local 770, AFL-CIO, et al. (Food Employers Council. Inc.), 145
NLRB 307.
3 Ibcd
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pose, the protection of unit work from present or possible future
encroachment.'
Under all the circumstances, therefore, I would find that the Re-
spondent has engaged in proscribed conduct for a proscribed object
within the meaning of Section 8(b) (4) (i) and (ii) (B), and that' no
legitimate basis has been established for holding such conduct to be
protected primary activity. I would accordingly enter an ap-
propriate order. As my colleagues have erroneously failed to do so,
I must dissent.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
A See, in connection with the foregoing, my dissenting opinion In Milk Wagon Drivers,
etc, at al. (Drive-Thru Dairy, Inc.), 145 NLRB 445. The fact that the Respondent's
objection would apparently not have precluded the making of these deliveries by the inde-
pendent distributors Is further evidence that its purpose was not the protection of unit
work.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented by counsel, was heard before Trial
Examiner Alba B. Martin in Detroit, Michigan, on May 9, 1963, on complaint 1 of
the General Counsel and answer of United Dairy Workers, Local No. 83, Retail,
Wholesale and Department Store Union, AFL-CIO, referred to herein as Respond-
ent, Respondent Union, Respondent Local, and the Union. The issues litigated
were whether Respondent violated Section 8(b) (4) (i) and (ii) (B) of the National
Labor Relations Act, as amended (herein called the Act), by inducing and en-
couraging employees of Sealtest and threatening, coercing or restraining Sealtest,
where an object was to force or require Sealtest to cease doing business with two
of its customers, Ogden Market (herein called Ogden) and Rom's Beverage Center
(herein called Rom's) and to force or require Sealtest's employees to refuse to fill
orders for Ogden and Rom's at Sealtest's Greenfield dock in Detroit. At the
conclusion of the hearing the parties presented oral argument and after the hearing
the parties filed helpful briefs, which have been carefully considered.
Upon the entire record and my observation of the witnesses, I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF SEALTEST
Sealtest Foods Division, National Dairy Products Corporation (herein called
Sealtest and the Company), a Delaware corporation, maintains numerous facilities
throughout the United States, including a plant (herein called Greenfield plant) in
Detroit, Michigan, the only facility involved herein. Respondent is, and has been
at all times material herein, engaged in the processing, sale, and distribution of
milk and other dairy products. During the fiscal year ending March 1, 1963. which
period is representative of its operations during all times material hereto, Sealtest
processed, sold, and distributed at its Greenfield plant, products valued in excess of
$500,000; and purchased, transferred, and delivered to its Greenfield plant milk,
dairy products, and other goods and materials valued in excess of $100,000, of which
goods and materials valued in excess of $90,000 were transported to said plant in
Detroit, Michigan, directly from States of the United States other than the State of
Michigan. Respondent admitted, and I find, that at all times material herein Sealtest
has been, and is now, a person engaged in commerce and in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7) and Section-8(b) (4)
of the Act.
1 The charge was filed on March 4 , 1963, by Arthur Elias, a sales representative of-
Sealtest
UNITED DAIRY WORKERS, LOCAL NO. 83, ETC.
H. THE LABOR ORGANIZATION INVOLVED
719
Respondent, United Dairy Workers, Local No. 83, Retail, Wholesale and Depart-
ment Store Union, AFL-CIO, is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background of the dispute
For some 27 years, since the inception of Respondent Union, Sealtest and Respond-
ent have had a contractual relationship. At the time of the events herein, in
February 1963, under a collective-bargaining agreement Respondent Union was "the
sole and exclusive representative and bargaining agent for all employees of" Sealtest,
with certain exclusions. The contract covered the wages, hours, and working con-
ditions of Respondent's 80-some wholesale routemen and helpers, providing for the
routemen a weeekly wage plus commissions on sales. The Company operates some
52 to 56 wholesale routes.
The contract between Sealtest and Respondent was negotiated between Respondent
and an association of 13 milk companies in the Detroit area , but it was separately
executed between Sealtest and the Union. On the Union's negotiating committee
were elected representatives from the various companies.
In February, Sealtest sold and distributed from the Greenfield plant 50-some
products, including different kinds of milk, dressings, cheeses, orange drinks, eggs,
butter, etc. These products (all called "milk" here and in the record) were distrib-
uted from the dock at the Greenfield plant, herein called the Greenfield dock and
the dock, principally (1) by Sealtest's employees, the wholesale routemen, (2) by
some nine wholesale independent distributors, (3) by a large number of independent
retail distributors, and (4) by a small number of retail establishments. The prices
at the dock were slightly lower than from the Company's wholesale routemen; and
presumably also from the independents. Group (3), the independent retail dis-
tributors, were Sealtest employees until 1959 when Sealtest told its employees and
the Union it was going out of the retail business and, after negotiating the terms
with the Union, sold the retail routes to their drivers. Since then Sealtest has had
no retail routes.
Of all the milk that leaves the Greenfield dock, most of it is picked up and delivered
by groups (2) and (3).
Of the above, only group (1) were Sealtest employees, and they distributed to
regular Sealtest customers such as grocery stores, hospitals, restaurants, drugstores,
caterers, etc. As has been seen above, the Company's wholesale routemen were
paid a salary plus commissions on sales. If for some reason a regular customer
did not get enough milk' from the wholesale routeman and the customer went to
the dock to fill his needs, under the contract the routeman was paid the regular
commission for that amount of milk. The same was true if the need was filled by
one of Sealtest's special delivery drivers.
Groups (2) and (3) were independent businessmen who sold Sealtest products
to anyone they wished. There was no rule preventing them from competing with
the Company's employees in group (1) for customers. Group (2), the wholesale
independents, sold to various business establishments such as grocery stores, drug-
stores, restaurants, caterers, cafeterias, and some sold also to homes. Some specialized
in vending machines, some in factory lunches. Group (3), the independent retail
distributors, consisted of approximately 350, in number, of whom about 100 pur-
chased at the Greenfield dock daily. The others, some of whom were from cities,
such as Ann Arbor and Pontiac, beyond the Detroit metropolitan area, bought their
milk at various Sealtest dock locations in Detroit other than the Greenfield dock.
These independent retail distributors sold to homes, and also to stores, restaurants,
confectioneries, drugstores, and various businesses.
The record is silent as to which of the two groups of wholesale deliverers, the
Company's 80 employees or the 9 independents, did the most business and sold the
most milk. In view of their numbers, 80 as against 9, it is a fair inference, which I
reach, that the Company's 80 wholesale deliverers accounted for a considerably
larger share of the Company's gross revenue than the 9 independents.
Sealtest Industrial Relations Manager Edward L. Simmons testified that about
100 of the independent retail distributors daily picked up milk at the Greenfield dock.
In addition, in February nine wholesale independents daily picked up products at
the dock; and one concern, Vern Dale Products, Inc., daily picked up Sealtest's
excess manufactured products, and returned products for processing and resale to
customers.
744-670-65-vol. 146---47
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Group (4) consisted of presumably small retail establishments bearing such names
as Lanes Market, Hollywood Market, Webbs Market, etc., Irene 's Party Store, Tisch-
bein Hamburger, etc. As a group these establishments did not come to the Greenfield
dock daily or with any regularity, although at times some of them came several
times a week. Mostly their visits were only occasional. These concerns were not
regular customers of any of Sealtest's wholesale routemen employees. Sales to
these concerns at the dock, which the record suggested were in small amounts,
constituted a small percentage of Sealtest's total gross revenues in 1962 and the
first 4 months of 1963. The price of milk at the dock was a little cheaper than if
purchased from one of the Company's wholesale deliverers.
Sealtest did not negotiate with the Union concerning the acquisition of new
customers, but it did discuss with the Union from time to time the impact of some
such acquisitions upon employee's wages, hours, and working conditions. From time
to time the Company bid for business and entered into contracts for the sale of
products in certain amounts during certain periods of time. These contracts were to
supply milk to such institutions as a nearby Army base, the city of Detroit schools,
the State of Michigan hospital, a United States hospital at Ann Arbor, Michigan, the
Wayne County jail and infirmary. Upon such occasions, if an unusually large
amount, an unusual delivery time, the creation of a new job, or the rearranging of
an old job, or such-like was involved, the Company discussed the problems with the
Union and the problems were resolved. The discussed and resolved problems in-
cluded how deliveries would be made: by the wholesale routemen or by the Com-
pany's so-called transportation employees who were paid at an hourly rate. A few
months ago there were discussions as to whether union employees would load milk
at the dock for the Boy Scouts and an Army base. Several years ago the Union
took a strong position that it refused to permit dock delivery to a company called
Detroit Marine Supply Co., and apparently Sealtest lost that customer or prospec-
tive customer to Borden's.
For about a week in early January 1963, the employees of Borden's, a competitor
of Sealtest, went on strike and remained on strike for about a week. Early in
the strike , immediately after a Sealtest management decision had been made, Seal-
test's general manager, David Falconer, asked the Union's chief steward, Earl
Ledford, into his office and informed him the Company had decided to meet the
expected increase in Sealtest 's business during the Borden strike by selling at the
Greenfield dock to anyone who came for milk. Ledford proposed and Falconer
rejected the idea that the Union would supply a list of Borden customers and the
Company would sell only to those and no others. The Union demanded in substance
that selling at the dock cease after the conclusion of the Borden strike, and, according
to the testimony of Ledford, that is the way it was left.
Rom's Beverage Center and Ogden Market, thought to have been former customers
of Vlasic, an independent distributor of Borden products and a competitor to Sealtest,
became Sealtest customers during or shortly after the Borden strike . Rom's came to
the Greenfield dock and bought milk on January 12, 14, 15, 16, 17, 18, 19, 21, 22,
23, 24, 25, 26, 28, 29, 30, and 31; February 1, 2, 4, 5, 6, 7, 8, 12, and 13. Ogden
came to the dock and purchased milk on January 7; February 4, 5, 6, 7, 8, 12, and
13. These purchases of these two retail stores at the dock were more consecutive
and more regular than the purchases at the dock of any other retail stores during 1962
and 1963. Never before this, at least in recent years, had Rom's and Ogden been
customers of Sealtest or an employee of Sealtest.
On February 11, 12, 13, and 14, the Union took a strong position against selling
to Rom's and Ogden at the dock, committed the acts alleged to be unfair labor prac-
tices, and actually interrupted the sale at the dock to these two small stores. Sale
to them remained interrupted until the Union was enjoined by a Federal district
court on April 8. Thereafter, on April 26, 30; and May 2, 3, and 4, Ogden returned
and made purchases at the dock. It does not appear that Rom's ever returned.
B. The alleged unfair labor practices
From February 11 to 14, Union Chief Steward Ledford had several conversa-
tions with Sealtest's Industrial Relations -Manager Simmons about stopping the sale
of milk at the dock to Rom's and Ogden; and the Union's Vice President John Carney
telephoned Simmons.
On February 11, Ledford went to Simmons' office, told him in substance that he
had just been informed by the union officers that some Borden customers, including
Ogden, who had purchased at the Greenfield dock during the Borden strike, were
still doing so, and that he had orders from the Union to stop it. Ledford said the
Company would have to figure out some other way of selling milk to these stores,
UNITED DAIRY WORKERS) LOCAL NO. 83 , ETC. 721
that the Union wanted their business as much as the Company did but that the Union
would not permit further sales to them at the dock . Ledford said that permitting
it would jeopardize the jobs of the wholesale routemen , that if permitted to continue
the situation would "snowball" and that the dock would be "ringed " with grocers
coming in and picking up their milk instead of buying from the routemen . Ledford
said also in substance that the Company 's permitting these dock pickups was a
violation of the contract ( in that it tended to deprive the wholesale routemen of
customers and commissions ), and that if these dock pickups were to be continued
they should be negotiated with the entire Local Union , because the issue involved
the whole Union and the entire Detroit metropolitan area.
The following day, February 12, Ledford and a member of the Union 's executive
board named Smith, again told Simmons the Union 's position was that Sealtest
must stop the sale of milk at the dock to Ogden Market, that it should work out
some other arrangement to serve this customer . Simmons said the Company would
sell at the dock to anyone who came to the dock and asked to buy . Ledford said
the Company should make other arrangements to sell Ogden milk before it got into
trouble. The union representatives contended in substance that selling at the dock
was a complete change in the Company 's delivery system and was a violation of the
contract. In substance Simmons denied it was a violation of the contract . In sub-
stance the union representatives asked that under the contract the appropriate whole-
sale deliverer be paid commissions upon the dock pickup sales to Rom 's and Ogden,
and Simmons denied the request.
In these conversations Ledford and Smith were working under instructions from
the Union 's vice president , Carney. Carney testified that upon learning of the
inauguration of dock pickups at the Greenfield plant he told Ledford and Smith
that such could not continue , because the Union had an industrywide contract cover-
ing 13 companies and that dock pickup was not a reality at any of the other com-
panies; that if dock pickup became a reality at Sealtest it would mean the total
destruction of the wholesale route structure under the contract , as far as the whole-
sale routemen were concerned ; that Ledford and Smith should so inform the
Company.
Carney telephoned Simmons on February 14, saying that he was somewhat shocked
at the position Sealtest was taking , that if the Company was "taking on" the Union,
the latter was able to handle the situation . Simmons replied in substance that the
Company was not going to stop dock deliveries.
Carney credibly testified that the Union had no quarrel with Ogden or Rom's;
that the object of its position was to make the Company live up to the provisions of
the contract and the working conditions established through negotiations over a
period of 27 years . By this Carney meant that the Union was striving , against what
it considered a potentially devastating , areawide challenge, to preserve the system
of company delivery by wholesale employee routemen even though this was slightly
more expensive to the customer than purchase at the dock . Nevertheless the Union
made no effort to restrict delivery at the dock to any purchaser other than Rom's
and Ogden, no doubt considering those as test situations . The union representatives
testified in substance that Rom 's and Ogden were the only two retailers the Union
knew were making dock pickups, but this seems unlikely since union employees in
filling orders placed and written up in the cooler next to the dock, saw the names of
the purchasers as they accumulated the items to fill the orders and probably had an
opportunity to see and talk with many of the purchasers or their employees.
On February 13, when the owner of Ogden Market, one Thomas , was in the cooler
placing his order for the day , Chief Steward Ledford said to the Sealtest sales
representative preparing the order, in the presence of Thomas, that he could serve
this customer today but after today he could not buy milk at the dock, that the Com-
pany would have to make other arrangements to sell the man the milk. The follow-
ing day when Thomas came for his pickup, in the presence of several Sealtest em-
ployees Ledford told him in substance that he could not buy at the dock but that
he would be happily served if he would get himself onto one of the Company's
wholesale routes . Thomas left without his order and never had another order filled
until April 26, some days after the April 8 injunction . The record is silent as to
whether he made any effort to purchase at the dock between February 14 and
April 26. There is no doubt on the record, and the Union virtually conceded, that
the Union induced and encouraged Sealtest employees to cease serving Ogden at the
dock and caused the interruption of business between Sealtest and Ogden.
On the following day, February 14, when a brother and representative of the
partners who owned Rom's Beverage Center came to the Greenfield dock and cooler
to place an order , Ledford grabbed the order from the hand of the Sealtest employee
directed to fill the order and told him he was not to fill the order . He laid the order
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a table and, addressing Rom's agent , said he was sorry but that "We are not going
to allow dock sale to you today ; we will be glad to serve you if you make arrange-
ments with Sealtest to get onto a wholesale route ." Ledford made it clear that he
was enunciating a union order and stated that if dock deliveries continued there would
be trouble. The purchaser left the cooler without his order and had not returned
up to the time of the hearing herein on May 5, 1963. There is no doubt on the record,
and the Union virtually conceded, that the Union induced and encouraged Sealtest
employees to cease serving Rom's at the dock and caused the interruption of business
between Sealtest and Rom's.
Apparently the Union confined its test of its right to stop regular dock sales to
the above incidents involving only Ogden Market and Rom's Beverage Center, for
it made no effort after February 14 to stop dock sales to other stores, at least one of
which, Warrendale Party Store, had been purchasing at the dock at irregular intervals
since at least January 20, 1962. Between February 14 and May 3, 1963, some 31
orders were made and filled at the dock, other than by Ogden, some by repeaters
such as Yatcko's Market, Rachid's Market, and Ahren's Beer Store, who were rela-
tively new purchasers at the dock.
At a meeting of the Union's general council on February 18, 1963, Respondent
Local's President Frank Litz made a report about the dispute considered herein.
Although the minutes of the meeting submitted by the secretary-treasurer used
broader language, on the entire record I credit the testimony of Litz, a credible wit-
ness, that he told the council that the officers of the Union had knowledge of daily
dock pickups at Sealtest by two individual storekeepers, that the officers would "not
tolerate it on the basis of the contract, on the basis of the potential loss of all
wholesale jobs."
C. Conclusions
There is no doubt upon this record that if the Union's activity was secondary
activity, it was a violation of the Act. If, on the other hand, it was primary activity,
it was permissible and protected by the proviso to Section 8(b)(4)(B). Upon
the entire record as a whole I conclude that it was primary activity and that the
Union did not violate the law.
The Union had no dispute with Rom's and Ogden. It was not trying to organize
their employees , was not seeking recognition from them or trying to bargain with
them on behalf of, or to influence the wages, hours, and working conditions of,
their employees . It was not picketing them or putting any pressure upon them at
their places of business . It made no demand upon Rom's and Ogden to do anything.
The Union was applying direct , primary , pressure against Sealtest at the point where
that pressure was most apt to be effective and at the only point where dock sales to
new customers could be barred.
The Union was not seeking to force Sealtest to change its method of doing business.
The Union did not make the first move in this dispute. The first move was by the
Company, by permitting ex-Borden customers to continue purchasing at the dock on
a regular daily basis after the end of the Borden strike. When the Union, thinking
it had an understanding with the Company against this practice, protested this change
and said these customers should be on a company wholesale route, the Company
stiffened its back and acted as though it thought the Union was trying to interfere
with its business. In fact the Union was seeking to preserve for its members, the
wholesale routemen, the system of delivery upon which the contract was based and
their jobs depended. The Union reasonably believed that under the contract and
the Company's and routemen's historic delivery system and practice, the Company's
wholesale routemen were entitled to make the sales to Ogden and Rom 's, as their
customers included retailers such as they. The Union also reasonably believed
that under the contract the wholesale routemen were entitled to commissions on the
sales to Ogden and Rom 's but Sealtest refused to pay commissions on these sales.
Although the union representatives talked broadly of barring all dock sales,
their actions spoke louder than their words; they spoke up in the cooler just off the
dock only when the owner of Ogden or the agent of Rom's was present, and they
actually interrupted delivery at the dock only to Ogden and Rom's although the
regular deliveries at the dock to independent wholesale deliverers and indenendent
retail deliverers, the vast bulk of the dock deliveries, were continuing; and although
between January 12 when Rom's started and February 14 when dock sales to Rom's
and Ogden was interrupted, some five other small retail stores like Rom's and
Ogden's (and also "no name recorded" four times, a Club Pak, a company sportsman
club, and the Boy Scouts) were permitted without comment by the Union to make
irregular dock purchases and pickups. This leads to the conclusion, hereby made on
the entire record, that the Union's primary concern, completely understood by the
LOCAL 1355, INT'L LONGSHOREMEN'S ASSOCIATION 723
Company, was not with delivery at the dock per se or with irregular dock pickups
by small retail concerns, but by regular daily dock pickups by people who were
not on any Sealtest employee wholesale route. The Union was concerned that if this
regular daily practice were permitted to continue, this fact, coupled with the cheaper
price at the dock, would attract and invite more and more dock purchases and that
ultimately Sealtest would or might discontinue wholesale deliveries just as in 1959 it
had discontinued retail deliveries. In that event Sealtest's employees who were in
the bargaining unit, the wholesale deliverers, would be out of jobs, or, at the least,
might be given an opportunity to purchase the wholesale routes and compete with
the Company's sales at the dock. Carney's testimony indicated the Union believed
that iriJ959 the Company forced its retail deliverers to buy their routes or lose their
jobs. 'Regardless of the truth of that belief clearly the Union took the action it did
in the hope of avoiding a repetition of that episode with respect to the wholesale
routemen.
The Union had a legitimate interest in acting to preserve and maintain Sealtest's
historic wholesale delivery system under which deliveries to Sealtest's customers were
made by Sealtest employees who were a part of the bargaining unit.2 Preserving
this delivery system under its contract which was based in part upon this system
was the Union's only dispute and its primary concern. (The dispute with Sealtest
and the Union's statements and actions with respect to Sealtest and Ogden and
Rom's were primary statements and actions, not secondary, and therefore fell into
the proviso to Section 8(b)(4)(B) of the amended Act, which permitted primary
activity. On the entire record it is so found.
Under these circumstances it is of no legal consequence that an incidental effect,
as contrasted with an object, of the Union's statements and actions, was to force
Sealtest to modify its method of doing business with Ogden and Rom's, and to
induce and encourage Sealtest employees to cease serving them. Cf. International
Union of Operating Engineers, Local 545 (Syracuse Supply Company), 139 NLRB
778.
Upon the above considerations and upon the entire record considered as a whole
I recommend that the complaint be dismissed.
2 Cf. Retail Clerks Union Local 770 v . N.L.R.B ., 29c P. 2d 363 , 373 (C.A.D.C.).
Local 1355, International Longshoremen's Association and Ocean
Shipping Service, Ltd.
International Longshoremen's Association and Ocean Shipping
Service , Ltd. Cases Nos. 5-CC-251 and 5-CC-255. April 9, 1961
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of Ocean Ship-
ping Service, Ltd., also referred to as Ocean, on January 27, 1964,1
against Respondents Local 1355, International Longshoremen's As-
sociation, and the International Longshoremen's Association, referred
to as ILA. Thereafter, on February 19, the General Counsel of the
National Labor Relations Board, by the Regional Director for the
Fifth Region, issued a complaint and notice of hearing, alleging that
the Respondents had engaged in and were engaging in unfair labor
practices affecting commerce. within the meaning of Section 8(b) (4)
(ii) (B) and Section 2 (6) and (7) oftheAct.
On March 20, all parties to this proceeding filed a stipulation of
facts and a motion to transfer this proceeding directly to the Board
I Unless otherwise indicated all dates refer to 1964.
146 NLRB No. 100.