Milk Drivers' Union, Local 753, IBTCWHA

MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1237 WE WILL NOT cause Corey Steeplejacks, Inc., to discriminate against William F. Cronin, or any other employee, by taking him off his job as oiler on a crane or by refusing to give him a job on a crane or give him any job for which he is qualified because Cronin is not a member of Local 4. WE WILL make William F. Cronin whole for any pay he may have lost because of the discrimination against him. WE WILL NOT in any like or related manner coerce or restrain employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. HOISTING AND PORTABLE ENGINEERS , LOCAL 4, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 24 School Street, Boston Five Cents Savings Bank Building, Boston 8, Massachusetts , Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Peter Smith, its Agent and Pure Milk Association; Sidney Wanzer & Sons, Inc. Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Peter Smith, its Agent and Pure Milk Association ; Sidney Wanzer & Sons, Inc. Cases Nos. 13-CC-?97-1, 73-CC-297-3, 13-CE-9-1, and 13-CE-9-0. April 11, 1963 DECISION AND ORDER On October 11, 1962, Trial Examiner Thomas S. Wilson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents 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, the General Counsel and the Charging Parties filed exceptions to the Intermediate Report and supporting briefs.' The Respondents filed a brief in support of the Intermediate Report. The Board has reviewed the Trial Examiner 's rulings made 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 in the case, and hereby adopts the findings and conclusions of the Trial Examiner only insofar as they are consistent with this Decision and Order. 1 The Board hereby denies the Charging Parties' request for oral argument, because the record, the exceptions, and briefs adequately present the issues and positions of the parties. 141 NLRB No. 103. 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree with the Trial Examiner that certain clauses contained in a contract executed by Respondent Local 753 and Sidney Wanzer & Sons, Inc., herein called Wanzer, cannot be held violative of Sec- tion 8(e) of the Act. Contrary to the Trial Examiner, however, we find that Respondents, Local 753 and its agent, Peter Smith, violated Section 8(b) (4) (i) and (ii) (A) and (B) of the Act. Wanzer operates a dairy processing plant in Chicago and sells milk and related products to retail customers in Chicago. Its raw milk is purchased from Pure Milk Association, herein called PMA, a coop- erative association of approximately 12,000 dairy farmers. From 1937 to May 15, 1962, Wanzer's purchases from PMA were f.o.b. vari- ous points in Wisconsin. During that period, Wanzer had a con- tractual arrangement with Elmer 11. Stonehouse, a hauling contrac- tor, to transport the milk purchases from Wisconsin to Wanzer's Chi- cago plant. Stonehouse has a garage in Chicago at a location sep- arate from that of Wanzer and employs eight tank-truck drivers to haul this milk. The drivers employed by Stonehouse and the various drivers employed by Wanzer, including route delivery and van drivers, are members of Respondent Local 753, which has separate bargaining contracts with numerous companies, including Wanzer and Stone- house. On February 9, 1962, Wanner gave Stonehouse notice, in ac- cordance with the terms of their agreement, of its intent to terminate that agreement as of May 15, 1962. Prior thereto, Wanzer had com- menced negotiations with PMA which culminated in an agreement on March 27, 1962. This agreement provided that, effective May 16, 1962, Wanzer's purchases of raw milk from PMA would be f.o.b. Chicago, i.e., PMA would be required to deliver the milk from Wis- consin to Wanzer's Chicago plant. PMA, in turn, entered into an agreement with Quality Carriers, Inc., herein called Quality, whose principal place of business is located in Burlington, Wisconsin, to do the hauling from Wisconsin to Wanzer's plant. Pursuant to this ar- rangement, Quality has been making deliveries to Wanzer since May 16. The drivers employed by Quality are members of Teamsters & Chauffeurs Local 43, whose headquarters are located in Racine, Wisconsin. Between early February 1962, when Local 753 first learned of the proposed change in the transportation of Wanzer's raw milk pur- chases, and May 19, 1962, when a strike was called by Local 753 at Wanzer's plant, several discussions were held between representatives of Wanzer and Local 753, including Peter Smith, the latter's business agent. During these discussions Local 753 insisted that, under article 44 of their contract, Wanzer was obligated to use members of Local 753 for the delivery of its raw milk supply and that while it would be pref- erable for Wanzer to use the eight Stonehouse drivers it was not im- perative so long as the drivers of any independent contract hauler were MILK DRIVERS' UNION , LOCAL 753, IBTCWHA 1239 members of Local 753. Wanzer was equally insistent that, effective May 16, it would become the responsibility of PMA to haul the milk to Wanzer's plant. Throughtout the discussions with Local 753, Wanzer made it plain that it intended to adhere to the new hauling arrange- ment, as it would constitute an annual saving of $50,000. On May 11 and 14, Local 753 threatened Wanzer with a strike, if drivers who were not members of Local 753 transported PMA ship- ments to Wanzer from Wisconsin . On May 11, Wanzer suggested hir- ing the eight Stonehouse drivers as retail driver -salesmen on Wanzer's milk routes, but this proposal was rejected by Local 753. On May 15, the day before the new hauling arrangement was to become effective ing the eight Stonehouse drivers as retail driver -salesmen on Wanzer's once again suggested the hiring of the Stonehouse drivers as retail driver-salesmen. This proposal was again rejected by Local 753. As May 16 was the date that Quality's drivers were scheduled to begin the milk deliveries from Wisconsin , the Stonehouse drivers would not have any work on that date. Wanzer, in an attempt to avoid the threatened strike, agreed with Local 753 to reimburse Stonehouse for his drivers' wages for that day. Meanwhile, Wanzer offered to try to persuade Quality to hire the Stonehouse drivers. Wanzer continued to pay the Stonehouse drivers for May 17 and 18, even though Quality drivers made the deliveries . On May 18, Wanzer advised Local 753 that Local 43 refused to permit Quality to use non-Local 43 drivers, but suggested that, if the Stonehouse drivers would move to Burlington, Wisconsin, and join Local 43, then Quality could employ them for the new hauling arrangement . Local 753 rejected this proposal. On May 19, Local 753 picketed Wanzer's plant from 4 a.m. until about noon . The strike ceased after a temporary restraining order was issued on that date by the United States District Court, Northern District of Illinois, Eastern Division. I. THE ALLEGED VIOLATION OF SECTION 8(e) On July 28 , 1961, Wanzer and Local 753 entered into a collective- bargaining contract, effective May 1, 1961 , to May 1, 1963 , which con- tains the following clauses : Article 44 . . . . the transportation division shall not be reduced from its present status and immediate steps shall be taken to re- store our members' jobs in all other plants covered by this agreement. 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 be- come members of Local 753 on the thirty-first (31st) day ... . 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the "transportation division" referred to in article 44 in- cludes tank drivers, such as those employed by Stonehouse, and van drivers, who are employed by Wanzer to haul packaged milk from its main plant in Chicago to its various distribution centers in Chicago, the jobs of Wanzer's vandrivers are not involved in this proceeding. In concluding that article 44 was a valid job-protection clause, the Trial Examiner found that Wanzer was the coemployer of the Stone- house drivers and thatthe clause merely prevented Wanzer from sub- contracting work being performed by employees in the bargaining unit. Accordingly, he concluded that article 44 was not violative of Section 8(e) of the Act.' The Board has held, with court approval, that a contract clause that prohibits or restricts the absolute subcon- tracting of work performed by employees in a bargaining unit covered by ,a contract may be lawful, but that a clause which allows subcon- tracting only to certain qualified employers is violative of Section 8 (e) of the Act.' In agreeing with the Trial Examiner's conclusion that article 44 is not violative of Section 8 (e), we do not adopt his finding that Wanzer and Stonehouse are coemployers, but base our conclusion on the concession of the General Counsel and the Charging Parties that article 44 is valid on its face. As the clause is not ambiguous,' we shall not consider the proffer of extrinsic evidence which was advanced for the purpose of showing that the particular clause was administered in unlawful fashion.-' However, we shall discuss and consider, this evi- dence, in connection with other alleged violations, infra.6 With respect to article 45, we agree with the Trial Examiner that Local 753 did not violate Section 8(e) of the Act, by entering into a In pertinent part, Section 8(e) reads as follows* It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from . . . dealing in any of the prod- ucts of any other employer, or to cease doing business with any other person . . . . Such agreements are declared unenforceable and void. 3 District No 9, International Association of Machinists , AFL-CIO ( Greater St Louis Automotive Trimmers and Upholsterers Association , Inc.), 134 NLRB 1354 , enfd, 315 F. 2d 33 (C.A D. C.) ; Retail Clerks Union, Local 770 et al. ( The Frito Co., Western Division), 138 NLRB 244 'For reasons stated in footnote 10, Member Fanning does not make this finding ; nor does he accept the majority rationale with respect to this article 6 9 Wigmore, Evidence § 2425 (3d ed. 1940). 6 Member Rodgers does not agree that because article 44 Is conceded to be valid on its face, the Board should not consider the interpretation given to article 44 by Local 753. The issue with respect to Local 753's interpretation of article 44 is clearly in issue before the Board ; and it is clear from the evidence adduced-evidence which is not precluded by Section 10(b)-that Local 753 interpreted the clause to mean that Wanzer could not employ drivers other than members of Local 753 to deliver its milk from Wisconsin to Chicago Had Wanzer acceded to Local 753 's interpretation , there would have been an unlawful "entering into" of an unlawful agreement within the meaning of Section 8(e). However, because it has not been shown that Wanzer in fact acquiesced in the Local 753's interpretation, Member Rodgers would not find that the General Counsel , on this record has proved a violation of Section 8(e). Cf. Dan McKinney Co., 137 7NLRB 649; General Teamsters', Warehousemen and Helpers' Union, Local No. 890 (San Joaquin Valley Shippers' Labor Committee, at al ), 137 NLRB 641; Retail Clerks Union, Local 770 (The Frito Company), supra. MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1241 contract with Wanzer on July 28, 1961, which contained such clause. This clause, it is clear, embodies a provision proscribed by Section 8 (e) as it seeks to have Wanzer cease doing business with any employer who delivers milk to its plant with drivers who are not members of Local 753. However, we are precluded by Section 10(b) of the Act 'r from finding a violation based upon article 45, as the contract containing the disputed clause was entered into more than 6 months before the charges were filed and there is no evidence, as conceded by the General Counsel, that either party reaffirmed or "lived up to" the clause within the 6-month period preceding the filing of the charges.' II. THE 8 (b) (4) (i) AND (ii) (A) AND (B) VIOLATIONS The Trial Examiner, having held that Wanzer was the coemployer of Stonehouse's tank drivers, concluded that there were no "hot cargo" or secondary boycott implications arising out of the Respondents' conduct. He therefore recommended dismissal of the Section 8(b) (4) (A) and (B) allegations of the complaint, on the ground that the sole object of Respondents' conduct was to preserve the Wanzer- Stonehouse bargaining unit of tank drivers. As noted above, we do not adopt the Trial Examiner's finding that Wanzer and Stonehouse were coemployers. We find it unnecessary to decide this question. We are convinced, for the reasons stated below, that, whether Wanzer and Stonehouse were coemployers or separate entities, in either event additional objects of the Respondents' conduct were (1) to force Wanzer to enter into an agreement proscribed by Section 8(e) and, therefore, in violation of 8 (b) (4) (i) and (ii) (A) ; and (2) to com- pel Wanzer to cease doing business with PMA because PMA had en- gaged Quality, whose drivers were non-Local 753 members, to haul milk from Wisconsin to Wanzer's plant, again, a clear violation of 8(b) (4) (i) and (ii) (B). As set forth in the Intermediate Report, the uncontradicted evi- dence demonstrates that in February 1962, when Local 753 learned that Wanzer was considering the termination of its hauling contract with Stonehouse and that PMA was to become responsible for deliver- ing the raw milk supply to Wanzer, Peter Smith, Local 753's business agent, told Wanzer that the latter was duty bound, in view of article 44 of their contract, to have the transportation done by members of Local 753, regardless whether Wanzer retained the services of Stone- house, obtained another independent contract hauler, or did the work through its own employees. Likewise, on May 2, 1962, Smith indi- 7 Section 10(b) of the Act provides in pertinent part: "That no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge . . . . 8 Of Dan McKinney Co, supra; Retail Clerks Union, Local 770 (The Frito Co ), supra; District No 9, International Association of Machinists, AFL-CIO (Greater St. Louis Automotive Trimmers ), supra. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cated to Wanzer that he would "tie up" the Wanzer operation on May 16, the date when Quality was to commence deliveries, if Wan- zer's lnilk purchases from PMA were then being delivered by non- Local 753 drivers. On May 11, Smith on behalf of Local 753 again told Wanzer that members of Local 753 would have to deliver the milk, preferably but not necessarily by the eight Stonehouse drivers. During this discussion, Smith threatened Wanzer with a strike in the event that non-Local 753 drivers were engaged in the over-the-road transportation of its raw milk. Respondents' position and strike threat were repeated in discussions held on May 14 and 15. There- after, picketing and strike activity were instituted at Wanzer's plant on May 19, 1963. The Respondents do not deny responsibility for these activities. The foregoing evidence clearly manifests that Local 753 was not concerned with the absolute prohibition of Wanzer's subcontracting of work for the purpose of preserving work for the Wanzer-Stone- house unit or units of employees it represented; rather, it approved having such work handled by any employer so long as his drivers were members of Local 753. Thus, Local 753 was seeking to enter into an agreement with Wanzer to cease doing business with em- ployers who did not meet this condition. We have held, and we also find here, that such a contract condition offends Section 8(e) of the Act.9 Although Local 753 referred to article 44 in its dis- cussions with Wanzer prior to the strike, which clause we have found not to be violative of Section 8(e), Local 753's interpretation of this clause during its discussions with Wanzer plainly broadened the literal wording of that clause into a new and different clause prohibited by Section 8(e). Accordingly, we find that Respondents, by threat- ening Wanzer with a strike and by striking Wanzer, attempted to compel Wanzer to enter into an agreement proscribed by Section 8 (e), in violation of Section 8(b) (4) (i) and (ii) (A) of the Act 10 Con- 9Retail Clerks Union, Local 770 (The Frito Co.), supra; District No. 9, International Association of Machinists (Greater St. Louis Automotive Trimmers ), supra 10 Los Angeles Mailers Union No. 9, I .T U. (Hillbro Newspaper Printing Company, Divi- sion of Hearst Publishing Company), 135 NLRB 1132, enfd. 311 F. 2d 121 (C.A D C) ; Highway Truck Drivers and Helpers, Local 107, et at. ( E. A. Gallagher 4 Sons), 131 NLRB 925 , enfd. 302 F. 2d '897 (C.A.D.C.). iMember Fanning dissents from the finding that Respondent Union violated Section 8(b) (4) (1) and (ii) (A) of the Act. As set forth by the Trial Examiner, the purpose of article 44 was clearly expressed by Local '753 during the negotiations for its acceptance Its purpose was to accomplish precisely what the Respondent Union attempted in this case, I e., to preclude Wanzer from changing its method of having milk delivered from Wisconsin to Chicago by any drivers other than members of Local 753 There is no evi- dence in this record that the parties to the contract were in disagreement with respect to Local 753's interpretation of article 44, which, in his view, is reasonably subject to this interpretation. He therefore concludes that the parties had entered into an 8 ( e) contract in May 1961 , and that Respondent's conduct in this case was an attempt to enforce that contract rather than to require Wanzer to enter into a "new and different" clause which was independently violative of Section 8(e). Member Rodgers would also find that Respondents further violated Section 8(b) (4) (1) and (ii ) (A) of the Act by seeking Wanzer's adherence to article 45 of the agreement be- MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1243 trary to Member Fanning's position, as set forth below, we find that the record does not establish that the employers agreed to the in- terpretation of article 44 advanced by Respondents during contract negotiation. As found above, this article as finally embodied in the agreement, was not ambiguous. In the circumstances, therefore, prior discussions and interpretations are inconclusive on this particular issue. Moreover, Wanzer's subsequent course of action herein plainly emphasizes that it did not subscribe to Respondents' interpretation of the intent and purpose of article 44 when the contract was executed. We have found above, contrary to the Trial Examiner, that Re- spondents violated Section 8(b) (4) (i) and (ii) (B) of the Act. The record establishes that a further object of Respondents' conduct was to force Wanzer to cease doing business with PMA, because PMA had engaged Quality, which did not employ drivers who were mem- bers of Local 753, to make deliveries from Wisconsin to Wanzer's Chicago plant.ll We find no merit in the Trial Examiner's holding that no violation was committed because Local 753 was not seeking a cessation of business between Wanzer and PMA, but was only ob- jecting to a method of delivery. The Board has heretofore held that a disruption of an existing business relationship, even though something less than a total cancellation of the relationship, is a "cease doing business" object, within the meaning of Section 8(b) (4) (B) of the Act.12 Here it is clear that Local 753 required Wanzer to terminate its present relationship with PMA in order to accommodate the use of members of Local 753 for hauling milk from Wisconsin to Chicago. M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above, occurring in con- nection with the operations of Sidney Wanzer & Sons, Inc., and Pure Milk Association, have a close, intimate, and substantial relation to trade, traffic, 'and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. tween Local 753 and Wanzer. It is clear that article 45 was an integral part of that agreement, and that article 45 on its face constituted an unlawful 8(e) provision It is also clear from the evidence that Respondents were interpreting article 44 to mean that Wanzer was precluded from employing drivers other than members of Local 753 to de- liver its milk to Chicago. Clearly, therefore, article 45 would effectuate the intent of article 44 as interpreted by Respondents . It is therefore apparent that Respondents' conduct viewed in this context constituted an effort to force Wanzer to reaffirm the un- lawful article 45. n Local Union 825, International Union of Operating Engineers , AFL-CIO ( Nichols Electric ), 138 NLRB 540 ; Local 3, International Brotherhood of Electrical Workers, AFL-CIO (New York Telephone Company), 140 NLRB 729 12 See Local 3, IBEW (New York Telephone Co ), supra. Nor can Wasnzer be considered as an "ally," as there is no evidence that struck work was being performed by Wanzer See N L.R.B. v. Business Machines, et at., 228 F. 2d 553 (C A 2) ; Douds v. Metropolitan Federation of Architects, etc., 75 F. Supp. 672 (D.C.S D.N.Y.). 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Having found that ,the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist therefrom and to take certain affirmative action which the Board finds necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and the entire record, the Board additionally makes the following : CONCLUSIONS OF LAW 1. By inducing employees of Wanzer to engage in a work stoppage and by threatening, coercing, or restraining the aforesaid employer, with an object of forcing or requiring said employer to enter into an agreement prohibited by Section 8(e), Respondents have engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (A) of the Act. 2. By inducing employees of Wanzer to engage in a work stoppage and by threatening, coercing, or restraining the aforesaid employer, with an object of forcing or requiring said employer to cease doing business with Pure Milk Association, Respondents have engaged in unfair labor practices within the meaning of Section 8(b) (4) (i) and (ii) (B) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, Chicago, Illinois, its officers, agents, representatives, successors, and assigns, and Respondent Peter Smith, its business agent, shall: 1. Cease and desist from : (a) Engaging in, or inducing or encouraging any individual em- ployed by Sidney Wanzer & Sons, Inc., Chicago, Illinois, or any other employer, to engage in, a strike or a refusal in the course of his em- ployment to perform any services; or threatening, coercing, or re- straining the aforesaid employer, or any other employer, where an ob- ject thereof, in either case, is to force or require said employer to enter into any agreement which is prohibited by Section 8 (e) of the Act. (b) Engaging in, or inducing or encouraging any individual em- ployed by Sidney Wanzer & Sons, Inc., or any other employer, to en- gage in a strike or a refusal in the course of his employment to perform MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 245 any services; or threatening, coercing, or restraining the aforesaid employer, or any other employer, where an object thereof, in either case, is to force or require said employer to cease doing business with Pure Milk Association. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at Local 753's business offices and meeting halls, in Chi- cago, Illinois, and places where notices to its members are customarily posted, copies of the attached notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Thir- teenth Region, shall, after being duly signed by Respondent's repre- sentatives, be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the Regional Director for the Thirteenth Region signed copies of said notices for posting by the above-named com- panies, if willing, in places where notices to employees are customarily posted. Copies of said notices, to be furnished by the Regional Direc- tor, shall, after being signed by Respondents, be forthwith returned to the Regional Director for disposition by him. (c) Notify the said Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN McCULLOCII took no part in the consideration of the above Decision and Order. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " APPENDIX NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES OF SIDNEY PANZER & SONS, INC. Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby give notice that: WE WILL NOT engage in, or induce or encourage any individual employed by Sidney Wanzer & Sons, Inc., Chicago, Illinois, or any other employer, to engage in, a strike or a refusal in the course of his employment to perform any services; or threaten, coerce, or restrain the above-named company or any other employer, 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where an object thereof, in either case, is to force or require said company to enter into any agreement which is prohibited by Section 8 (e) of the Act. WE WILL NOT engage in, or induce or encourage any individual employed by Sidney Wanzer & Sons, Inc., or any other employer, to engage in, a strike or a refusal in the course of his employment to perform any services; or threaten, coerce, or restrain the above- named company or any other employer, where an object thereof, in either case, is to force or require said company to cease doing business with Pure Milk Association. MILK DRIVERS' UNION, LOCAL 753, INTERNATIONAL BROTHER73OOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Labor Organization. Dated---------------- By------------------------------------- (Representative ) ( Title) Dated---------------- By------------------------------------- (PIDTIDa ,SMITH, Business Agent) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Midland Building, 176 West Adams St., Chicago 3, Illinois, Telephone No. Central 6-9660, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon identical charges filed on May 14, 1962, by Pure Milk Association and by Sidney Wanzer & Sons, Inc., herein respectively referred to as P.M.A. and Wanzer or as the Charging Parties, in Cases Nos. 13-CC-297-1-2 and 13-CE-9-1-2, the General Counsel of the National Labor Relations Board, hereinafter referred to respectively as the General Counsel' and the Board respectively, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued his consolidated com- plaint dated June 8, 1962, against Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, & Helpers of America and Peter Smith, its Agent, hereinafter referred to as the Respondents or individually as 753 or Smith. The consolidated complaint alleged that Respondents had engaged in unfair labor practices affecting commerce within the meaning of Section 8(e) and 8(b)(4)(i) and (ii)(A) and (B) and Section 2(6) and (7) of the National Labor Relations Act as amended, hereinafter called the Act. Copies of the charges, the consolidated complaint, and notice of hearing thereon, were duly served upon the Respondents and the Charging Parties. Respondents duly filed their answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held at Chicago, Illinois, on July 24 and 2.5, 1962, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel and afforded full opportunity to be heard, to produce, examine and cross-examine witnesses, to introduce evidence material pertinent to the issues, and were advised of their rights to argue orally upon the 1 This term includes the attorney appearing for the General Counsel at the hearing. MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1247 record and to file briefs and propose findings and conclusions or both. Oral argu- ment was waived. Briefs were received from General Counsel, the Charging Parties, and Respondents on August 22, 1962. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE CHARGING PARTIES Sidney Wanzer & Sons, Inc., is, and has been at all times material herein, a corpo- ration duly organized under, and existing by virtue of, the laws of the State of Illinois with its principal place of business located at Chicago, Illinois. It is, and has been at all times material herein, engaged at said place of business in the processing, sale, and distribution of milk and related products. In the course and conduct of its business during the past calendar year, Wanzer purchased milk from outside the State of Illinois valued at approximately $5,000,000 and said milk thereafter was trans- ported to its place of business located at Chicago, Illinois, directly from points out- side the State of Illinois. During the past calendar year, Wanzer's gross were ap- proximately $15,000,000. Pure Milk Association is, and has been at all times material herein, a cooperative association composed of approximately 12,000 individual dairy farmers, duly or- ganized under, and existing by virtue of, the laws of the State of Illinois. It is, and has at all times material herein, engaged throughout Illinois, Wisconsin, Indiana, and Michigan in the marketing and processing of raw fluid milk and processed milk. In the course and conduct of its business during the past calendar year, Pure Milk shipped or caused to be transported from points in Wisconsin directly to points outside of the State of Wisconsin, goods, materials, or products valued in excess of $50,000. In addition to the Charging Parties, Quality Carriers, Inc. (herein called Quality), is and has been at all times material herein, a corporation duly organized under, and existing by virtue of the laws of the State of Wisconsin, with its principal place of business located at Burlington, Wisconsin. It is, and has been at all times material herein, engaged at said place of business in the transportation of milk and other bulk commodities by tank truck. In the course and conduct of its business during the past calendar year, Quality has transported milk and other bulk commodities from points in Wisconsin directly to points outside of the State of Wisconsin, for which it received in excess of $50,000. The complaint alleged, the Respondents admit, and the Trial Examiner finds, that Wanzer, P.M.A., and Quality are now, and have been at all times material herein, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE RESPONDENT Local 753 is, and at all times material herein has been, a labor organization admitting to membership employees of Wanzer, P.M.A., and Quality. M. THE UNFAIR LABOR PRACTICES A. The facts Sidney Wanzer & Sons (Wanzer) is a large Chicago dairy whose processing plant is located at 130 West Garfield Boulevard, Chicago 9, Illinois, where the raw milk is processed and then distributed by Wanzer to its customers. For a number of years past Wanzer has been purchasing a portion of its raw milk supplies from Pure Milk Association (P.M.A.) f.o.b. various milk collection points in the State of Wisconsin. Since 1937 at least this supply of raw milk has been transported from the Wis- consin f.o.b. points to the Wanzer processing plant in Chicago by Elmer H. Stone- house under contract with Wanzer. The last of these contracts, which is dated March 1, 1960, reads in part as follows: MEMORANDUM OF AGREEMENT, made and entered into this 1st day day of March, A.D. 1960, by and between ELMER H. STONEHOUSE, an independent trucking contractor, and SIDNEY WANZER & SONS, INC., an Illinois Corporation engaged in the business of processing and distributing milk and other dairy products. Elmer H. Stonehouse agrees to transport daily in tanks especially buit [sic] and suitable for the purpose of transporting milk, the number and disposition of which is to be mutually agreed to by both parties. Sidney Wanzer & Sons, 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., agrees to employ said Stonehouse to transport daily all of its requirements of raw milk products available for trucking between the receiving stations listed on Exhibit "A" hereto attached, where Wanzer customarily receives its raw milk products and Wanzer's pasteurization plant in Chicago, Illinois ... . Stonehouse as related to the subject matter of this agreement agrees to and shall provide and pay for the following: 1. Property damage and public liability insurance upon all units operated by him, including those bearing the Wanzer name, in limits of public liability of $250,000 each person to $500,000 and $100,000 property damage. 2. Workmen's Compensation insurance for all employees operating said equip- ment, to the full amount required by law. 3. Cargo insurance, to its full value, on all goods transported for Wanzer. 4. All requisite licenses and permits. Elmer H. Stonehouse agrees to promptly pay all wages and salaries due all employees who are operating the equipment herein contemplated. Attached to this memorandum of agreement was an "Appendix A" indicating the rate to be paid Stonehouse per hundredweight of delivery milk. Each day Wanzer notified Stonehouse of the amount, the time, and the place of the pickups to be made. Stonehouse would then post this information on the bul- letin board at his "barn" where the transportation equipment was housed for the edification of the eight drivers used in this operation. This barn was separate and distinct from the Wanzer barn. The tractors and tanktrucks used in this operation were owned by Stonehouse whose name, however, was displayed only upon the trac- tors whereas the tank trucks bore the Wanzer name. Stonehouse delivered ex- clusively to Wanzer. After having been processed at the Wanzer plant in Chicago the milk was delivered to Wanzer customers by Wanzer employees. For the past number of years both Wanzer and Stonehouse had executed contracts covering their respective drivers with 753. In addition Wanzer had a contract with 753's sister Local 754 covering its "inside employees." In April 1961, 753 gave due notice to the numerous Chicago dairies and independ- ent trucking contractors who were signatories to its master contract of its intention to negotiate changes in that agreement. The negotiations which follow were car- ried on in customary fashion with all the signatory dairies and contractors being rep- resented at the negotiations by a single dairy association spokesman and 753 by its secretary-treasurer, Thomas J. Haggerty. As usual Wanzer had its representatives present at the negotiations while Stonehouse as usual did not. Among the changes proposed by 753 was the following addition to article 44 of the master agreement covering vanmen and tankmen: "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." In the discussion of this proposed addition to article 44 and thereafter throughout the negotiations Haggerty for 753 explained that this addition was made necessary by the fact that many Chicago dairies and independent contractors had been chang- ing from having their milk transported by 753 members to having the same delivered by members of Teamsters Local 43 (Local 43) of Racine, Wisconsin, because of the lower rates and the less strict enforcement of its contract by Local 43 whereby sub- stantial savings in delivery cost were being made by these dairies so that such dairies were securing a competitive advantage over those continuing to use drivers from 753 Haggerty made it clear that this addition applied regardless of whether the dairies used their own employees for transportation or whether they used so-called independent hauling contractors. Although the 1961 negotiations were protracted there was little, if any, disagreement regarding this addition to article 44 so that it was accepted and became a part of the 1961 master agreement. The 1961 master agreement also contained as a part of article 45 the following from the previous master agreement: "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." About May 1, 1961, Wanzer, Stonehouse, and P.M.A. signed this 1961 master agree- ment containing the above clauses with 753. In October 1961, Sidney Wanzer III (Wanzer III) became president of Wanzer after having been its vice president since 1922 and Attorney Lov McIntosh became its secretary. MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1249 On February 9, 1962, Wanzer gave Stonehouse notice in accordance with the terms of their agreement of March 1, 1960, of Wanzer's intention to terminate that agree- ment as of May 15, 1962. On March 27, 1962,2 Wanzer entered into a new contract with P .M.A. whereby Wanzer would continue to purchase its raw milk supplies from P.M.A. f.o.b. delivery points in Wisconsin until May 16, 1962, on which date Wanzer would purchase said raw milk supply f.o.b. its processing plant in Chicago .3 Rumors of this proposed change in the Wanzer transportation had reached 753 by early February. Business Agent Peter Smith, early in February, called Wanzer's labor relations man Schroeder 's attention to article 44 in regard thereto saying that Wanzer was dutybound to have the transportation done by members of Local 753 regardless of whether Wanzer retained the services of Stonehouse or secured another independent contract hauler or did the work through its own employees . Schroeder agreed to call this to the attention of Wanzer officials. Stonehouse notified 753 upon receipt of the letter of February 9 of Wanzer's inten- tion to cancel its transportation contract with Stonehouse. As a result on several occasions thereafter particularly on May 2, 753 Business Agent Smith reminded Wanzer officials of article 44 and let it be known to them that he would not like to have to tie up the Wanzer operation on May 16, if the Wanzer raw milk supplies were then being delivered by non-753 drivers. On May 11, Smith met with Wanzer III and other Wanzer officials telling them that under article 44, Wanzer would have to use 753 members for the delivery of its raw milk supply, that it would be preferable for Wanzer to use the eight Stonehouse drivers but that that was not imperative so long as the drivers used were members of 753. Wanzer III suggested giving the Stonehouse drivers jobs as retail driver- salesmen on Wanzer milk routes but Smith disagreed . Wanzer III stated during the discussion that Wanzer was going to make a $50 ,000 savings under its new transporta- tion arrangements with P .M A. which it intended to make. During this discussion, Smith threatened to tie up Wanzer in the event that non-753 drivers were used in the over-the-road transportation of Wanzer raw milk supplies. On May 14, Haggerty for 753 in substance repeated Smith's comments of May 11 to Wanzer III. On that same day Wanzer and P .M.A. filed charges with the Board alleging Smith's threats as a violation of Section 8(b) (4) (i ) and (ii) (A), (B), and (D). On May 15, the parties met again at the Chicago Athletic Association where 753 again threatened to tie up Wanzer's operations unless Wanzer's over -the-road trans- portation of its raw milk supply was to be done by 753 drivers . Wanzer's suggestion of using the Stonehouse drivers as retail salesmen or route drivers was again rejected. In order to avoid the threatened tie up Wanzer III suggested that he would get Quality to use the Stonehouse drivers on the Wisconsin run, a matter which Wanzer was sure could be arranged by talking to Quality the following day and he further agreed to pay the Stonehouse drivers for the following day if 753 would not tie up the Wanzer operations on May 16. On that basis the meeting adjourned early on the morning of May 16. As per the March 27, 1962 , contract with P.M.A. the Wanzer supplies of raw milk were delivered at the Wanzer Chicago processing plant from Wisconsin on the morn- ing of May 16 by Quality using drivers from Local 43. However, Wanzer III ordered Stonehouse to pay the eight Stonehouse drivers in accordance with the agree- ment made at the Chicago Athletic Association for which Wanzer subsequently re- imbursed Stonehouse . There was no disturbance of the Wanzer operations that day. Later on May 16, Wanzer III requested another day's extension of the Chicago Athletic Association agreement on the grounds that it was going to take more than 1 day to make the proposed arrangements. Local 753 agreed. Stonehouse again paid the eight drivers for which he was reimbursed by Wanzer. However, on the afternoon of Friday , May 18, after another day 's extension had been requested by McIntosh who was then acting for Wanzer as Wanzer III had left Chicago on a trip , McIntosh called 753 to a meeting at which he told 753 that Local 43 refused to allow Quality (which had a contract with Local 43 covering its opera- 2 All dates hereafter are in the year 1962 unless otherwise specified 3 Although this contract is dated March 27, 1962, the record contains a letter of inquiry from P M.A. to Quality Carriers, Inc. (Quality), regarding a transportation rate quoted verbally by Quality "some time" prior to March 5 to P M.A. It thus appears that this new agreement between P .M.A. and Wanzer had been under discussion for "some tine" prior to March 5. By letter dated March 7, Quality confirmed a transportation rate of 12 cents per cwt., a reduction of approximately 50 percent from the rate Stonehouse had been getting in its contract with Wanzer. Quality, of course, intended to use Local 43 drivers on this run Quality was under contract to both 753 and Local '43. 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions in the Wisconsin area and with 753 covering its Chicago operations) to use any but Local 43 members on the Wanzer run from Wisconsin but suggested that, if the Stonehouse drivers would move to Burlington, Wisconsin, join Local 43, then Quality could employ them on the Wanzer run. McIntosh insisted again that Wanzer in- tended to make the $50,000 savings which this new transportation arrangement was to make for Wanzer. This suggestion 753 rejected. On the morning of May 19, 753 authorized a strike at the Wanzer plant, picketed the plant, and tied up all Wanzer operations from 4 a.m. until about noon when the parties reached Wanzer III by telephone in Seattle who agreed to abide by the arrangement reached at the Chicago AA on May 15 and 16. With that 753 called off its strike and allowed the Wanzer trucks to roll. On May 25, General Counsel went before the Honorable Richard B. Austin, judge of the United States District Court, Northern District of Illinois, Eastern Division, requesting and securing an injunction against Local 753 on the basis of the charges theretofore made by P.M.A. and Wanzer. There has been no picketing since. B. Conclusions The facts of the instant matter are simple and undisputed. The essential facts may be quickly summarized as follows. 1. The Charging Parties here, Wanzer and P.M.A., voluntarily agreed by contract dated May 1, 1961, with 753 not to reduce their transportation divisions from their then status. All parties to this agreement understood this "transportation division" clause to mean that those Chicago dairies signatory to the agreement whose milk supplies were then being delivered by over-the-road 753 drivers would continue to have such supplies delivered by 753 drivers, whether such drivers were the employees of the dairies or of independent contract haulers. 2. On March 27, 1962, the Charging Parties, Wanzer and P.M.A., entered into a new purchase agreement whereby Wanzer was to continue through May 15 to pur- chase its supplies of raw milk from P.M.A. f.o.b. delivery points in the State of Wis- consin but beginning May 16, such purchases were to be made f.o.b. Wanzer's Chicago plant. 3. Through May 15 such raw milk supplies continued to be delivered to Wanzer's Chicago plant from Wisconsin, as had been done in the past, by 753 drivers. Begin- ning on May 16 and continuing thereafter the 753 drivers were laid off and P.M.A. had such raw milk supplies delivered to Wanzer's Chicago plant by drivers belonging to Local 43, thereby creating a saving estimated by Wanzer at $50,000 due to the difference in the negotiated rates between the 753 and the Local 43 contracts. 4. 753 threatened to, and did on May 19, strike Wanzer in an effort to enforce the transportation division clause of the contract.4 The Board is the author of the statement that "the language of the amended Act in Section 8(b) (4) (A) and Section 8(e) is clear and unambiguous." 5 But the fact remains that in two exceptionally able briefs applying this clear and unambiguous language to the simple facts found above, General Counsel and Re- spondents have been able to arrive at diametrically opposite results, General Counsel proving through decided Board cases that Respondent violated Section 8(e) and 8(b) (4) (i) and (ii) (A) and (B) whereas Respondents proved through logic and some decided cases that there had been no violation of any section of the Act by Respondents. On the other hand, the Trial Examiner is inclined to agree with neither completely. Section 8(e) reads in pertinent part as follows: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such em- ployer ceases or refrains or agrees to cease or refrain from . . . dealing in any of the products of any other employer, or to cease doing business with any other person... . Such agreements are declared void. * General Counsel's complaint herein alleged that article 45 of the 753 master contract, as well as article 44, the transportation division clause, violated Section 8(e). However, in his brief, General Counsel admits that article 45 "was never expressly mentioned in dis- cussions by Respondent with Wanzer." It thus appears that the allegation regarding article 45 in the complaint amounts to nothing more than a hypothetical, theoretical vio- lation of the Act Accordingly, the Trial Examiner will recommend the dismissal of the complaint as to article 45. 6Haghway Truck Drivers and Helpers Local 107, et al. (B. A. Gallagher & Sons), 131 NLRB 925, 929. MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1251 The legislative history makes it very clear that Section 8(e) was written into the Act and Section 8(b) (4) (A) was amended for the purpose of plugging certain loopholes in the treatment of hot cargo and secondary boycott situations which the Supreme Court had pointed out in the Sand Door case. Consequently Section 8(e) is applicable only to hot cargo or secondary boycott situations. This is also the tenor of the Board's recent brief to the United States Court of Appeals for the District of Columbia in Case No. 16, 901 entitled District No. 9, International Association of Machinists, AFL-CIO (Greater St. Louis Automotive Trimmers) v. N.L.R.B. The question at issue here is whether the transportation clause of article 44 that "The transportation division shall not be reduced from its present status . violates Section 8(e) as a hot cargo or agreement in futuro to engage in a secondary boycott or whether it does not. A subsidiary question also arises as to whether or not "an object" of the negotiation of this clause was to force Wanzer "to cease doing business" with any other person, and if so, who. In his brief, General Counsel candidly admits that article 44 "on its face" does not violate Section 8(e). But General Counsel contends that "by implication" the 753 interpretation of that clause makes article 44 into a patent hot cargo and sec- ondary boycott clause. That interpretation of the article, of course, was that Wanzer, whose transportation work had been for many years under 753 contract and performed by 753 drivers, must continue to have its transportation work done by 753 drivers, regardless of whether such drivers were direct employees of Wanzer or of some independent contract hauler whom Wanzer might choose to have do the transportation work for it. There are two strings to the General Counsel's bow in this regard. He argues, first, that this interpretation transforms article 44 into a patent violation of Section 8(e) because, by agreeing to the fact that the transporation work must be performed by 753 drivers, Wanzer thereby agreed "in the future not to do business" with any non-753 contract hauler, thus in effect boycotting all non-753 haulers. Secondly Gen- eral Counsel argues that by this interpretation 753 cannot claim article 44 to be a work preemption clause because, by its inclusion of any independent contract hauler therein, 753 would be attempting to preempt work in the Wanzer appropriate unit for employees other than those of Wanzer. This latter question will be taken up in a consideration hereinafter of the relationship of Stonehouse and Wanzer vis-a-vis the Stonehouse 753 drivers. On the contrary Respondents contend that article 44 was solely a work preemption clause intended for the protection of existing jobs covered for years by a 753 contract and filled by 753 vanmen and tankmen represented by 753 who composed the trans- portation division of Wanzer and, as such a work preemption clause, was a legal and enforcible provision of the ordinary collective-bargaining agreement.6 Every collective-bargaining agreement ever signed has its own inherent, built-in work preemption feature, i.e., the jobs and job classifications covered by such collective-bargaining agreement are thereby allotted or preempted for the em- ployees in the appropriate unit covered by that contract. Thus the ordinary collective-bargaining agreement allots or preempts certain jobs or job classifications to A, a class of employees. The inevitable corollary to that preemption is that the employer of A is necessarily thereby "forced to cease doing business" in regard to those unit jobs with B, any individual or firm who may desire to subcontract the work being done by the employees in the unit.? It thus becomes clear that a legal work preemption clause of the ordinary collective- bargaining agreement restricts the employer's right to do business with other third persons regarding the work performed in the unit in exactly the same fashion as Gen- eral Counsel describes in his effort to prove article 44 to be a hot cargo or secondary boycott clause. Hence if the General Counsel's argument is valid, all collective-bargaining agree- ments are likewise invalid or void and Section 8(e) becomes, in effect, a nonunion employers' "right to the work" law. Local No . 48, Sheet Metal Workers International Association , AFL-CIO, etc. ( Gadsden Heating and Sheet Metal Company), 119 NLRB 2387, 291. 7 Reversing a prior ruling in the same case, 130 NLRB 1558, this Board held on Septem- ber 13, 1962 , in Fibreboard Paper Products Corporation , 138 NLRB 550, that the ques- tion of an employer's subcontracting out unit work , albeit for economic reasons, is a man- datory subject of bargaining between that employer and the Union representing the unit employees. It appears to this Trial Examiner, as it apparently did to the dissenting mem- ber of the Board, that this new decision may well have a profound, though at present unpredictable, effect upon the Board's interpretation of the sections of the Act involved herein. 708-006-64-vol. 141-80 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The history of the introduction of article 44 into the negotiations in 1961 prove that 753 proposed it in order to stop the further loss of van and tank jobs in the transportation divisions of the dairies under contract with 753. It was proposed in order to stop the trend which had developed among the Chicago dairies to contract this van and tank work out to contract haulers with agreements with Local 43 because the rates under that Local 43 agreement were less than those under the 753 contract whereby the dairies affected savings on their transportation costs. Thus, while 753 continued to bargain in regard to the van and tank jobs, the jobs themselves were becoming nonexistent by being contracted out of the unit by the dairies to non-753 haulers. Quite obviously then history proves that ar- ticle 44 was proposed and accepted as a work-retention or work-preemption meas- ure whereby existing jobs under the 753 agreement filled by 753 employees were to be retained within the unit within which 753 was bargaining for the employees Article 44 was, therefore, a job preemption clause, in the collective-bargaining agreement negotiated by and between Wanzer and 753 for and on behalf of the employees filling those positions consistent with the new rule of the Fibreboard case. As such it must be legal and binding. Therefore, as Respondent suggested even prior to the last Fibreboard decision, a strike to enforce the legal provisions so negotiated is also legal provided, of course, that 753 was negotiating in regard to jobs within the unit and, consequently, without hot cargo or secondary effects. That naturally brings us to the question of whether 753 was negotiating for the retention of these existing jobs within the appropriate unit, or whether, as General Counsel suggests, 753 was attempting to preempt jobs in what the Gen- eral Counsel refers to as the Wanzer appropriate unit for employees of a third party, Stonehouse The latter, of course, would introduce secondary features to this case That brings this discussion to what this Trial Examiner believes to be the key issue of this case, to wit, was Wanzer an employer of the vandrivers and tankdrivers who brought in Wanzer's raw milk supplies or was Stonehouse, the contract hauler, the sole employer of those drivers so that Wanzer had no employ- ment relationship with the Stonehouse drivers, thus introducing the secondary ef- fects the General Counsel claims. In this connection it is interesting to note that General Counsel refers to Wanzer in his brief as "a neutral." On the other hand, General Counsel also refers to these unknown, theoretical non-753 independent haulers as being the employers with whom Wanzer was forced "to cease doing business." In this regard Gen- eral Counsel appears slightly bewildered as to just who is the primary employer, and who is the secondary employer whom article 44 required to be boycotted in futuro or against whom the hot cargo was being applied. The Charging Parties, on the other hand, have selected P.M A. as the injured party maintaining that, by its interpretation of article 44, 753 was "forcing" Wanzer to cease buying "prod- ucts" from P.M.A. It is difficult to understand the Charging Parties' position for the reason that history again makes it clear that 753 was not at all interested in the fact that Wanzer was continuing to purchase, as it had done for many years past, milk products from P.M A. The thing which 753 objected to was the de- livery of those P.M.A. products beginning on May 16, 1962, by Local 43 drivers, a money-saving contrivance arranged through the new P M A.-Wanzer agreement of March 27, 1962, by which Wanzer continued to take delivery of P.M A prod- ucts at Wisconsin delivery points until May 16, but thereafter P.M A. delivered those products to Wanzer's processing plant in Chicago as the delivery point. By this slight variation in the means of doing business between P M A. and Wanzer as of May 16, 1962, the problem of transporting the raw milk supplies was trans- ferred from Wanzer with its contract with Stonehouse and the 753 drivers to P.M.A. which, surprisingly enough, selected Quality with its Local 43 drivers as its agent to make the delivery to Wanzer in Chicago. Through this maneuver of changing the delivery point, Wanzer eliminated its "transportation division" of expensive 753 drivers by having P.M.A. deliver the very same supplies to the Chi- cago processing plant with the cheaper Local 43 drivers and saved $50,000. In a very similar situation this Board has found the elimination of its employees belonging to one union by an employer and their replacement by employees be- longing to another union in order to effect a similar financial saving due to the differential between the rates charged by the two unions constituted an unfair labor practices The assertion by the Charging Parties here that by means of article 44, 753 was attempting to force Wanzer to boycott products of P.M.A. just does not con- 8L. Ronney & Sons Furniture Manufacturing Co., 93 NLRB 1049, affd. 206 F. 2d 730 (C.A. 9). MILK DRIVERS' UNION, LOCAL 753, IBTCWHA 1253 form to the facts. The interest of 753 was restricted exclusively to the delivery of those products-not to the purchase of those products. The question now reaches the primary issue: was 753 attempting to preempt jobs in the Wanzer appropriate unit for employees of another employer, namely, Stonehouse, or were the Stonehouse drivers actually a part of the Wanzer ap- propriate unit as employees of Wanzer. If the Stonehouse drivers were in fact part and parcel of the Wanzer appropriate unit, then the strike of 753 to retain the jobs for the Stonehouse-Wanzer employees was clearly a primary strike against the primary employer attempting to enforce an agreement negotiated on a mat- ter of mandatory bargaining and is thus devoid of hot cargo or secondary boy- cott implications. If Stonehouse were the sole employer of those drivers, then quite clearly hot cargo and boycott implications are here present. Although the Trial Examiner feels that the relationship between Wanzer and the Stonehouse drivers was not too fully or carefully explored at the hearing, the record on that relationship nonetheless is fairly clear. Stonehouse was described in the March 1, 1960, contract with Wanzer as "an independent contract hauler." Stonehouse owned the tractors and tanks by which the supplies were delivered to Wanzer. He also claimed the drivers as his employees. The facts also show that this same contract obligated Stonehouse to pay the drivers of the equipment their wages promptly, to carry workmen compensation insurance as well as public liability and property damage insurance on both the tractors bearing the Stone- house name and the tanks bearing the Wanzer name. He was also obligated to carry cargo insurance on the Wanzer milk contained therein. The facts further show that Stonehouse delivered the milk supplies exclusively for and to Wanzer upon daily orders from Wanzer as to times, places, and amounts, that John King, a Wanzer official, "supervised" on behalf of Wanzer the deliveries of these sup- plies. In addition Wanzer officials participated in the negotiations with 753 which included the rates of pay and other conditions of employment for Stonehouse van- drivers and tankdrivers whereas Stonehouse, their nominal employer, did not. The Wanzer-Stonehouse agreements were revised to accommodate any new rates ne- gotiated for the vandrivers and tankdrivers. It is also worth noting that, when this present trouble began, the parties here all approached Wanzer, not Stone- house, regarding the employment of the Stonehouse drivers and further that Wanzer ordered Stonehouse to pay the Stonehouse drivers their wages for the 3 days dur- ing which Wanzer attempted to work out a settlement of the dispute. Stonehouse paid the wages and was reimbursed by Wanzer. As the deliverers of the Wanzer raw milk supplies, the Stonehouse drivers constituted an essential link in the or- derly line production of the Wanzer finished product. It is obvious enough from the above that the interest of Stonehouse and of Wanzer in relation to those drivers were so inextricably interwoven and linked as to be identical. This is especially so in view of the 90-day cancellation provision con- tained in the Wanzer-Stonehouse agreement which tended to give Wanzer the right of control over both Stonehouse and his drivers. Stonehouse and his drivers constituted in fact the Wanzer transportation division regardless of what private arrangement may have existed between Wanzer and Stonehouse. Accordingly the Trial Examiner must find that because of this right of control over Stonehouse and his drivers by Wanzer together with its actual daily exercise by Wanzer that Wanzer, in the words of Respondents, while perhaps not the "technical employer" of those drivers, had "such a primary interest" therein as to disqualify itself as a "neutral" or one "in reality not involved in the dispute." Because of this interest and right of control Wanzer became a coemployer of the Stonehouse drivers along with the "technical employer" Stonehouse 9 or else an "ally" of Stonehouse.io 6 The Trial Examiner well recognizes the fact that in making a similar finding on facts decidedly similar to those present here in the Hoosier Pete case, 106 NLRB 629, his finding was reversed by the Board. The authority of the Board's decision in that case has been put in serious question by the very recent Board decision, July 17, 1962, in the case of Sterling Wire Products Company, 137 NLRB 1330. The Trial Examiner believes that the right to control referred to in Board cases subsequent to Hoosier Pete is present in the instant case 10 This finding is further buttressed by the facts regarding a prior contract between Wanzer and Elmer Stonehouse, Sr., whereby Elmer Stonehouse, Sr., performed van serv- ices for Wanzer under a contract apparently similar to the contract here. The facts show that, when Elmer Stonehouse, Sr., decided to retire, Wanzar thereupon took over the whole Elmer Stonehouse, Sr., van service and personnel by making that personnel direct employees of Wanzer. 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of this finding it becomes clear that the Stonehouse drivers were in fact part and parcel of the Wanzer transportation division unit. As this is so, the second string to General Counsel's bow, to wit, that 753 was attempting to preempt jobs in the Wanzer appropriate unit for employees other than Wanzer's, is eliminated and with it the secondary boycott and hot cargo aspects suggested by General Counsel. In the absence of the essential elements of hot cargo or secondary boycott, the legislative history shows that Section 8(e) is not applicable. It is true that General Counsel and the Charging Parties have cited innumerable Board decisions such as the E. A Gallagher & Sons case, 131 NLRB 925, containing broad generalized statements tending to support General Counsel's position herein. In Gallagher the Board said, as an example: Further, by proscribing contracts, "express or implied," Congress obviously intended that the thrust of Section 8(e) extend not only to contracts which clearly on their face cause a cessation of business, but also to those contracts which by their intended effect or operation achieved the same result. No other interpretation appears open or reasonable; else the efficacy of this section would be nullified. This broad generalization in the Gallagher case is dicta in that it was unnecessary to a decision in that case inasmuch as the union there was trying to force Gallagher to eliminate independent nonunion truckers with whom Gallagher had had long con- tractual relations and to add those jobs to the appropriate unit for which the union was then bargaining. Perhaps the closest case on its facts to the present is the uncited case of the San Joaquin Valley Shippers' Labor Committee, et al., 137 NLRB 641, where the Board stated: The General Counsel contends, and the Respondent Union denies, that Section 4(a) and the first sentence of Section (1) also constitute agreements whereby the employer agrees to cease doing business with another person within the meaning of Section 8(e) of the Act. In Section 4(a) the employers have bound themselves to do business only with those contractors who agree that their employees shall be covered by the terms of a contract, and by Section (1) the employers agree to hire only those independent truckdrivers who are members in good standing with the Respondent Union. As an agreement to do business only with those who meet either union membership or contract coverage requirements these clauses are an agreement, at least by implication, not to do business with those who do not so qualify. Accordingly, we find that Section 4(a) and the first sentence of Section (1) falls squarely within the prescription of Section 8(e) of the Act. This statement is also dicta as once again the Union was attempting to eliminate persons who already had driving jobs with the employers and add those jobs to the Union's bargaining unit: again there was a secondary effect not present here. An essential element to make the May 19 strike illegal under Section 8 (b) (4) (A) or (B) is that "an object" thereof was to cause Wanzer "to cease doing business" with some third party. The evidence proves that "the object" of 753 in both the negotiation of article 44 and the strike to enforce the same on May 19 was to keep those transpor- tation division jobs within the unit represented by 751 where they had been for years past. The natural result of this legal work preemption agreement negotiated by 753 would be that Wanzer would thereafter no longer be free to contract those jobs out to some third party and thus out of the 753 unit. This same thing results from any and all collective-bargaining agreements . The natural result flowing from a legal act is not necessarily "an object" of that act. If it were otherwise, then all collective agreements are illegal under Section 8(e). Obviously this was not the congressional intent. The congressional use of the phrase "to cease" doing business in Section 8(b)(4)(A) and (B) would appear to imply something over and beyond the pure negative "not." This difference appears of some significance in the present case as compared to those Board cases cited by General Counsel and the Charging Parties. It is to be noted that in the cited cases where violations were found by the Board the Union's efforts there were directed to the stoppage of actual business relation- ships already existing between the employer involved and third parties-an actual cessation of such established relationships. Here, on the contrary, 753 was seeking only the continuation of its own preexisting relationship with Wanzer, there being at that time no other such in existence between Wanzer and any other third party. There was no business "to cease" here except that in existence between Wanzer and 753. If 753 had been attempting to cause the cessation of business between Wanzer and some third party, no doubt the result here would be different. All 753 sought SHREVEPORT PACKING CORPORATION 1255 to do was to continue its long existing relationship in the transportation division with Wanzer. The Trial Examiner consequently can find no illegal object involved here. Accordingly the Trial Examiner recommends that the complaint herein be dis- missed. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Milk Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Peter Smith, its agent, is a labor organization within the meaning of Section 2(5) of the Act. 2. Pure Milk Association and Sidney Wanzer Sons , Inc., are engaged in commerce within the meaning of Section 2 (7) of the Act. 3. Neither Respondent Union nor Respondent Smith have engaged in any unfair labor practices within the meaning of the Act. The Trial Examiner recommends that the complaint in the instant matter be dis- missed in its entirety. Shreveport Packing Corporation and Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL-CIO, Local 181. Case No. 15-CA-2120. April 11, 1963 DECISION AND ORDER On February 7, 1963, Trial Examiner Jerry B. Stone issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed . Thereafter, both the Respondent and the General Counsel filed exceptions to the Inter- mediate Report and supporting briefs.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Rodgers and Fanning]. 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 in this case, and hereby adopts the findings, conclusions, and recom- mendations 3 of the Trial Examiner, except as noted herein. 1 The Respondent's motion to "correct" a certain portion of the record testimony Is denied. We cannot conclude that the testimony as it appears in the record does not accu- rately reflect the testimony of the witness. 2 The Trial Examiner concluded that L . E. Mowry, Jr., was a supervisor within the meaning of the Act. In the absence of exceptions thereto, we adopt this finding pro forma. 8 Member Rodgers , for the reasons set forth in his dissenting opinion in Isis Plumbing & Heating Co ., 138 NLRB 716, would not require the payment of interest on the backpay award provided for herein. 141. NLRB No. 114.