Milk Drivers Local 471

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