Dairy Employees' Local 754

DAIRY EMPLOYEES' LOCAL 754 483 Dairy Employees' Union, Local 754, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and Glenora Farms Dairy, Inc. Cases 13-CC-786 and 13-CE-45 May 2, 1974 conduct violative of Section 8(bX4XiiXA) and (B) and 8(e) of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by all parties and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 10, 1973, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the General Counsel filed exceptions, a supporting brief, and a brief answering the Respondent's exceptions, and the Charging Party filed an answering 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 briefs 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 Respondent, Dairy Employees' Union, Local 754, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Chicago, Illinois, its officers, agents, and representatives , shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JERRY B . STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on September 18 through 22, 1973, at Chicago, Illinois. The charge in Case 13-CC-786 was filed on May 16, 1973. The charge in Case 13-CE-45 was filed on May 16, 1973. The Order Consolidating Cases and the Consolidated Complaint in this matter were issued on August 6, 1973. The issues concern whether Respondent has engaged in FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts herein are based upon the pleadings and admissions therein, and upon statements narrowing the issues at the hearing. Glenora Farms Dairy, Inc., herein sometimes called Glenora, 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 Illinois. At all times material herein, Glenora has maintained its office and place of business in Skokie, Illinois, where it is now and has been at all times material herein engaged in the wholesale and retail sale and distribution of milk and related products. During the course of the last fiscal or calendar year, a representative period, Glenora, in the course and conduct of the business operations described above, had a gross volume of business in excess of $500,000 and purchased and received orange juice valued in excess of $50,000 directly from enterprises located in States of the United States other than the State of Illinois. Ludwig Milk Company (herein sometimes called Lud- wig), 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 Illinois. At all times material herein, Ludwig has maintained its office and place of business in Elgin, Illinois, where it is now and has been at all times material herein engaged in the processing and sale of milk and other dairy products. During the course of the last fiscal or calendar year, a representative period, Ludwig, in the course and conduct of the business enterprise described above, had a gross volume of business in excess of $500,000 and received goods and products valued in excess of $50,000 directly from enterprises located in States of the United States other than the State of Illinois. Glenora and Ludwig are and have been, at all times material herein, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. As conceded by Respondent and based upon the foregoing, it is concluded and found that Glenora and Ludwig are and have been, at all times material herein, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, that each meets the Board's standards for the assertion of jurisdiction herein, and that in connection with the activities set forth in section III of this decision it will effectuate the policies of the Act to assert jurisdiction in this proceeding. 210 NLRB No. 60 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED' collective-bargaining contract which Glenora Farms Dair- y, Inc., had with Respondent .4 In substance, Distributors Dairy Services, Inc., pur- chased certain assets (excluding processing equipment), use of the name of Glenora Farms Dairy, Inc., and purchased distribution routes. What had been known as Glenora Farms Dairy, Inc., changed its name and continued at the same place to sell its other assets and to liquidate. Distributors Dairy Services, Inc., employed certain truck- drivers from old Glenora, did not employ any processing employees from old Glenora, ultimately employed one clerical from old Glenora, and assimilated the distribution routes into its enterprise. There is some contention that Glenora Farms Dairy, Inc., is a successor to old Glenora Farms Dairy, Inc. The sum of the facts as set forth reveals that Glenora Farms Dairy, Inc. (formerly Distributors Dairy Services, Inc.), is not an alter ego of old Glenora Farms Dairy, Inc., did not assume collective-bargaining contracts of old Glenora Farms Dairy, Inc., and was not the same employing enterprise as old Glenora Farms Dairy, Inc. It is clear, and I conclude and find that Glenora Farms Dairy, Inc. (formerly Distributors Dairy Services, Inc.), does not have bargaining obligations with Respondent arising out of the fact that it purchased certain assets and name usage.5 Distributors Dairy Service, Inc., had initially entered into a collective-bargaining agreement with the Respon- dent in 1968. In 1969 and 1971, Distributors Dairy Services, Inc., and Respondent had also entered into new collective-bargaining agreements. Said 1971 collective-bar- gaining agreement between Respondent and Distributors Dairy Services, Inc., is identical to or substantially similar to a 1971 collective-bargaining agreement between the Respondent and (old) Glenora Farms Dairy, Inc. When Distributors Dairy Services, Inc., changed its name to Glenora Farms Dairy, Inc., the applicable collective- bargaining agreement covering its employees and between it and Respondent was the agreement entered into between Distributors Dairy Services, Inc., and Respondent .6 The new "Glenora Farms Dairy, Inc.," later similarly purchased name usage and certain assets from Creamcrest (in June 1972) and Bornhoff (in October 1972). The facts as to such purchases and resultant acquisition of distrib- ution routes, and assimilation of such routes into Glenora Farms are similar to those with respect to Distributors Dairy Services, Inc. 's acquisition and assimilation of "Glenora Farms Dairy, Inc.'s" routes, excepting for assumption of name usage. The new "Glenora Farms Dairy, Inc." did not become a successor to collective- bargaining obligations of such companies. As a result of the acquisition of such assets and routes, Glenora Farms to pay accrued vacation pay to routemen and other employees who became its employees Read as a whole , the contract of sale and purchase does not reveal an intent for the purchaser to assume the obligation of the seller's collective-bargaining agreement with Respondent. 5 See Witham Buick, Inc., 139 NLRB 1209. Alabama Precast Products Co., Inc., 163 NLRB 993. 8 The collective-bargaining agreements between Respondent and Glen- ora Farms Dairy, Inc., Distributors Dairy Services, Inc., and many other companies referred to in the litigation of this case, except one, were virtually all identical or substantially similar and covered distribution and processing employees. Dairy Employees' Union, Local 754, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the Respondent, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Issues Agency Status2 At all times material herein, the following named persons have occupied the positions set opposite their respective names and have acted on behalf of Respondent as its agents within the meaning of Section 2(13), 8(b), and 8(e) of the Act: August Burnier-secretary-treasurer; Mathias P. Glaser-vice president; Edward T. Paulsen-president. B. Glenora Farms Dairy, Ine.3 The Collective-bargaining Agreement Involved In 1973, Glenora Farms Dairy, Inc., was engaged in the purchase, sale, and distribution of dairy products to wholesale and retail customers in the Chicago, Illinois, area. At such time and prior thereto, when known as Distributors Dairy Services, Inc. (1968-September 1971), or as a proprietorship named "Dairy Services Distributors" (1967-1968), Glenora Farms Dairy, Inc., had not engaged in employing employees in processing work. During the time of existence of Glenora Farms Dairy, Inc., or its predecessors, certain dairy distribution routes had been purchased from other companies. Glenora Farms Dairy, Inc., never engaged in the processing of milk for such routes but either continued for a while purchasing the milk from the one who had previously processed such milk or commenced purchasing such processed milk from Sidney Wanzer & Sons, Inc., herein called Wanzer. Ultimately Glenora Farms Dairy, Inc., as of early 1973, purchased all such processed milk from Wanzer. As has been indicated, Glenora Farms Dairy, Inc., was formerly known as Distributors Dairy Services, Inc. In September 1971, Distributors Dairy Services, Inc. pur- chased certain assets from Glenora Farms Dairy, Inc. Distributors Dairy Services, Inc., also purchased the right to use the name "Glenora Farms Dairy, Inc." Distributors Dairy Services, Inc. did not purchase the corporate entity of Glenora Farms Dairy, Inc., or its processing equipment. Nor did Distributors Dairy Services, Inc., assume the r The facts are based upon the pleadings and admissions therein. 2 The facts are based upon the pleadings and admissions therein. 3 The basic facts are not in dispute except as indicated later herein. The essential disagreement goes to conclusions to be gathered from such facts The facts are based upon a composite of the credited aspects of the testimony of all witnesses, of stipulations, and of exhibits. 4 Distributors Dairy Services, Inc., agreed to pay union pension and other union contributions for Margaret Adonolphi, Glenora's secretary, after she became an employee of Distributors Dairy Services, Inc. Adonolphi was to be a consultant, and the terms for such services were part of the "quid pro quo" for the contract of sell and purchase The agreement thereto was limited in nature . Distributors Dairy Services, Inc., also agreed DAIRY EMPLOYEES' LOCAL 754 485 Dairy, Inc., merely added to its distribution business, did not engage in processing of milk, and did not employ processing employees. C. The Collective-bargaining Unit As the facts previously set forth reveal, Distributors Dairy Services, Inc. (now known as Glenora Farms Dairy, Inc.), entered into a collective-bargaining agreement with Respondent in 1968, and again executed collective-bar- gaining agreements with Respondent in 1969 and 1971. As the facts previously set forth, the above-referred to 1971 collective-bargaining agreement between Distributors Dairy Services, Inc., and Respondent (and not a 1971 collective-bargaining agreement between "old" Glenora Dairy Farms, Inc., and Respondent) is the collective- bargaining agreement governing the relationship between Glenora Farms Dairy, Inc. (in 1973), and Respondent. Glenora Farms Dairy, Inc. (formerly Distributors Dairy Services, Inc.), did not agree in 1968, 1969, in 1971, or at any later date to authorize any association or other person to bargain collectively on its behalf, nor did Glenora Farms Dairy, Inc., agree with Respondent at any date that it would be bound by bargaining by any person other than itself. The collective-bargaining agreements of 1968, 1969, and 1971 executed by Distributors Dairy Services, Inc., and Respondent reveal on their face that the collective- bargaining unit involved is a unit of the Employer's employees. The Employer in said agreements is shown to be Distributor's Dairy Service, Inc. The facts reveal that as a result of name change such employer in 1973 was Glenora Farms Dairy, Inc.7 Even assuming that the Respondent could otherwise establish that it has collective-bargaining agreements concerning a multiemployer bargaining unit as to other employers, the facts would preponderate for a finding that Distributors Dairy Services, Inc., in 1968, 1969, 1971, or later did not agree to become a part of such multiemployer bargaining unit. Much testimony and many exhibits were presented into evidence relating to a contention that Respondent Union represents all employees covered by contracts entitled "Fluid Milk Contract" in one multiemployer employee bargaining unit. It suffices to say that such evidence as a whole does not reveal the establishment of a multiemployer employee bargaining unit of employees. Multiemployer bargaining, multiemployer employee bargaining units of employees, and essentially standard type contract presentations often look alike and appear similar. Thus, employers may authorize multiemployer bargaining but for individual bargaining units of each employer. Employers may agree with each other and with a union that their employees jointly constitute a multiem- ployer employee bargaining unit. And unions may develop a standard type contract and be successful in having many employers to execute such contracts. There are many distributors and processors of dairy products in the Chicago area. The Union has collective- bargaining agreements with many of such distributors and processors of dairy products. Whether the Union has collective-bargaining agreements with all such distributors and processors is not established. Whether other unions represent some distributors and processors is not revealed. The facts in this case concerned those distributors and processors who had contracts with the Union. All of the companies except one which had collective-bargaining agreements with the Union in this case were signators to contracts entitled "Fluid Milk Contract." The "Fluid Milk Contracts" are essentially identical or substantially similar. Much testimony and many exhibits were introduced into the record concerning "fluid milk" contracts and the bargaining thereto. The facts as a whole reveal that an association called The Associated Milk Dealers, Inc., represented prior to 1966, and between 1966 and 1971, its employer-members in negotiations with the Union. The credited testimony of Burnier for the Union and Hanley for said association was to the effect that the Union had to secure the signatures of the individual employers to contract. The facts reveal that prior to 1966, in 1966, and in 1969, the Union and the AMD met and discussed terms of a contract, agreed to such terms, and the individual members of the AMD executed individual but substantial- ly identical contracts with the Union. For contract negotiations in 1971, the Union refused to meet with the AMD but selected a certain member of AMD, negotiated a contract with said member, permitting others to be present, and sent such contracts to AMD members for signatures but indicating a willingness to bargain if so desired. The Union had no problem in getting the AMD members to execute in effect separate but identical contracts. In addition to the foregoing, the facts reveal a bulletin dated January 23, 1970, from Hanley, attorney for AMD, to members of AMD indicating that a labor committee for AMD had made agreements concerning the 1969 contract relative to employees' having their birthdays as a day off from work. Considering all of the foregoing, I conclude and find that the AMD was authorized by its members to negotiate final and binding contract agreements up and until 1971. Prior to 1966, the AMD had permitted nonmembers of AMD to sit in on its bargaining sessions with the Union .8 After reaching agreement with the AMD as to contract terms, securing individual AMD members' signatures to identical but separate contracts, the Union submitted identical but separate contracts to nonmembers and told them that here was the contract, sign it. The Union had no difficulty in getting AMD and non-AMD members to execute such contracts. In 1966, one of the members of AMD, Sidney Wanzer & Sons,9 resigned. In 1966, the AMD refused to let Wanzer and other nonmembers participate in its bargaining sessions with the Union. In 1966, the Union first negotiated a contract with Wanzer. Later the Union met with the AMD and negotiated a contract, identical to the Wanzer contract 7 The applicable collective-bargaining agreement for the issues herein is classifications covered under such contract with the various Employers and the one referred to as the 1971 agreement and is in effect until 1974. discussed and agreed upon the Union's bargaining positions. • Prior to the negotiations with Employers concerning the "Fluid Milk 9 Herein sometimes called Wanzer. Contract," the Union had a meeting for all employees working in 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except for the addition of arbitration language . The Union then secured signatures to separate but identical contracts from the AMD employer members . The Union then sent separate but identical contracts to all nonmembers of the AMD for signature. The Union apparently had no difficulty in securing signatures to such contracts from any such employers. In 1967 the Union negotiated with the AMD and reached agreements on contract terms. Thereafter the Union secured the signatures of employer-members of the AMD to separate but identical contracts . In 1967, certain nonmembers of the AMD had joined an organization called the Chicago Area Dairymen's Association. The Union refused to recognize this Association in bargaining. Instead, the Union, utilizing the basic contract negotiated with AMD, met with certain of the employers (with whom there were specific problems) who were nonmembers of AMD and negotiated contracts . The negotiated separate contracts were substantially similar but contained differ- ences designed to solve the specific problems . As to other employers who were nonmembers of the AMD , the Union submitted separate contracts identical in language to the AMD contracts.10 In 1969, the Union negotiated a "fluid milk" contract with the AMD. As in the past it successfully secured signatures from individual employers, members of AMD, to said contract. The Union submitted similar and identical individual contracts to certain employers, who were not members of AMD and with whom it anticipated no problems, for signatures. The Union encountered no difficulty in obtaining such signatures . As to certain other employers, who were not members of AMD and with whom there existed problems , the Union met and negotiat- ed addendums to be attached to a contract identical to the AMD contract, and secured agreement from such employ- ers thereof. In 1971 , the Union refused to negotiate with the AMD. Instead the Union selected one company (Dean Foods Company), a member of AMD, and negotiated and signed a contract. The Union permitted others to be present with the officials of such company while negotiations were going on. Individual contracts identical to the Dean Foods Company contract were submitted to AMD members and non-AMD members with whom there were no problems. Individual contracts were submitted to employers with whom the Union had problems and addendums were negotiated for attachment thereto . The Union had no difficulty in obtaining signatures from Employers to such contracts. Burnier of the Union testified to the effect that the employees of the one employer not signatory to the "Fluid Milk" contract were not in the alleged "Fluid Milk" unit because the terms and conditions of the contract as signed were different from those in the "Fluid Milk" contracts. The sum of the facts and the foregoing reveal in effect that basically separate but identical contracts have been in effect since before 1966 with employers who were members of the AMD and with employers who were not members of AMD. The original basic type contract has been changed 10 This contract form was utilized with respect to approximately 95 percent of the employers who were nonmembers of the AMD. from time to time but remains basically similar to what it was. Each succeeding type contract has remained basically similar, whether applicable to AMD members, non-AMD members, or individual employers. AMD was authorized to represent its members in multiemployer bargaining from before 1966 to 1971. Since 1971, AMD has not been recognized as a multiemployer bargaining agent. As to some of the employers who were nonmembers of the AMD, the facts are not sufficient to reveal whether their actions constituted authorization or ratification of a multiemployer bargaining agent at such times. As to other employers, who were not members of AMD and did not attend bargaining sessions, the facts do not reveal authorization or ratification of such bargaining authori- ty. [ [ The facts simply reveal that the Union decides upon its positions, negotiates one contract, and uses this contract as its basic and firm proposal as a separate contract to all other employers. All of the separate contracts referred to above contain language to the effect that the collective-bargaining unit consists of the employees of the signatory employer. Such contracts, including the 1971 contract between Distributors Dairy Services, Inc., and the Union provide also in effect, in connection with agreements made a part thereof, that employees of the employer have certain rights and benefits concerning unemployment. Such employees have the right to apply seniority on an "industry" basis under certain conditions. In effect, an employee of one employer, under certain conditions, can exercise seniority rights (as to bumping) over an employee of another employer who has signed one of the "fluid milk" contracts. Despite the identical or substantial similarity between the many "fluid milk" contracts executed during different years (1966-71) by various employers and the Union, there is no evidence to reveal that at any time such employers agreed with each other, with an association or other person, or with the Union that the employee bargaining unit was a multiemployer employee bargaining unit. Considering all of the foregoing, I find it clear and conclude and find that there is not a multiemployer employee bargaining unit of employees consisting of all of the employees, specifically described in the individual contracts, of employers signatory to the "fluid milk" contracts with the Union. The benefits and rights contrac- tually agreed to by the Employer and the Union which are accorded on an industry basis, and which are broader than normally accorded employees of an individual employer, constitute evidence of a broad community of interest. It is a factor for consideration as to whether a consensually agreed to multiemployer bargaining unit is appropriate. In the absence of the individual employer having agreed to a multiemployer employee bargaining unit, however, such factor is not sufficient to establish a multiemployer employee bargaining unit. Accordingly, I conclude and find that the "collective- bargaining unit" of the individual employer, Glenora 11 Distnbutors Dairy Services, Inc., and Glenora Farms Dairy, Inc., did not participate in such sessions. DAIRY EMPLOYEES' LOCAL 754 Farms Dairy, Inc., is the collective-bargaimng unit for purposes of Section 8(e) of the Act in this case.12 D. The Ludwig Milk Company In early 1973, Glenora engaged in negotiation with Ludwig both as to contemplated purchase of processed milk and as to complete purchase of Ludwig. Later, in April 1973, Ness for Glenora was in communication with the Respondent Union about such plans. The Union's conduct, which occurred in April 1973 and thereafter as regards such plans, the purchase of Ludwig by Glenora, the contemplated cessation of purchase of processed milk from Wanzer and purchase of processed milk from Ludwig, is in issue in this proceeding. The question of whether Ludwig is "a person," other than Glenora, for the purpose of Sections 8(b)(4)(ii)(A) and (B) and 8(e) of the Act is related to such issues. Glenora purchased Ludwig on April 23, 1973. Because of fear of strike action by the Union, Glenora did not commence the purchase of milk from Ludwig until August 1973. At such time Ness had been advised by his attorneys that he no longer needed to fear such strike action.13 With respect to the issue of whether Ludwig is "a person," other than Glenora, for the purpose of Sections 8(bX4XiiXA) and (B) and 8(e) of the Act, the following may be summarized. Fred Ness and his wife, after April 23, 1973, owned 100 percent of the shares of Glenora. Glenora, in turn, owned 100 percent of the shares of Ludwig. Fred Ness, his wife, and his wife's mother were directors of Glenora. Fred Ness and his wife were directors of Ludwig. Certain officers and officials of Glenora were as follows: Fred Ness-president; his wife-secretary-treasurer; Bernard White, Robert Braun, and Frank Pollich-vice presidents; Robert Braun-general manager; and Frank Pollich-assistant general manager, and a supervisor named Heflin. Certain officers and officials of Ludwig were as follows: Fred Ness-president; Ernest Ludwig-general manager; Bernard White-assistant general manager; and supervisors Larry Mann and Robert Broeker.14 Glenora and Ludwig maintain separate bank accounts in different towns, separate payroll records prepared by their own respective employees, separate accounts receivable and payable kept at their own locations, have separate auditors, keep separate insurance, own separate property, have separate telephone listings, and intend to file separate income tax returns. The main offices and plants of Glenora and Ludwig are separately located. Ludwig's main office and plant is located 30 miles away from Glenora's, and Ludwig's second operation at "Polo" is located around 105 miles from Glenora's. The facts reveal, however, that the operations of Glenora and Ludwig meet at the point or 12 The Respondent contends in effect that for "work preservation" purposes under Section 8(e) of the Act there can be a broader unit. I am persuaded that Congressional intention and Board and court decisional law reveal that the purpose of Congress was to keep labor disputes narrow and that the collective-bargammg unit for "work preservation" purposes is the collective-bargaining unit of the employees of the Employer. 13 It is clear that such advice was based upon a consideration that 487 points where Glenora receives the "processed milk" from Ludwig. Glenora purchases 95 percent of the processed milk that it distributes from Ludwig . Ludwig sells 20 percent of its products to Glenora. Checks are prepared by the employees of each company for their respective companies and are signed, personally or by machine, by Fred Ness. It is clear that when Ness signed checks for Ludwig, he signed in a capacity as president of Ludwig. It is also clear that when Ness signed checks for Glenora, he signed as president of Glenora. Fred Ness and Ernest Ludwig credibly testified to the effect that Glenora and Ludwig were separately operated; that Ludwig, former president of Ludwig, had a blank check for such operation ; that Ludwig officials and supervisors and employees were not involved in the operation of Glenora ; that Ludwig's expenditures were approved by Ludwig; and that Ludwig controlled its own day by day operation, hiring and firing, promotions, setting of work conditions, prices, labor negotiations, wages and working conditions, and handling of grievances. In making such credibility determinations, I have considered the testimony concerning approval of expendi- tures, Assistant General Manager White's status and manner of pay, brief and sporadic work for Ludwig performed by Pollich, Ness's presence at Ludwig's contrac- tual negotiations, the discharge of Ackerman by Ness, and the question of integration of the two companies. On one occasion Ness, president of Glenora and Ludwig, dis- charged an employee named Ackerman . General Manager Ludwig, of Ludwig, had already decided to discharge Ackerman. Ness was present on the day that Ackerman was to be discharged ; and since Ludwig and White had to leave to go elsewhere and to minimize hard feelings between Ludwig and Ackerman, Ness decided to be the one who would discharge Ackerman . Since Ness was president of Ludwig, since Ernest Ludwig had decided upon such discharge, I am persuaded that Ness's actions were as president of Ludwig, were ministerial in nature, and do not reveal the imposition of active control by Glenora over Ludwig. Bernard White, a vice president of Glenora , was made assistant general manager of Ludwig after Glenora purchased Ludwig. In September of 1973, after Glenora purchased another company (Modern Dairy), White was made general manager of Modern. While at Ludwig, White's salary and certain payments to the Union were paid by Glenora. The overall evidence reveals that Ness was not experienced in the operation of a processing company, and that Ernest Ludwig was expected to stay only several years . Ness testified in explanation of Glenora's payment of White's salary that such was done for tax purposes and to help White maintain certain union benefits. Considering the foregoing in context with the evidence that Glenora reposed authority in Ernest Ludwig communication between Glenora and the union attorneys had revealed that strike action would not be undertaken, at least, pending the outcome of litigation 14 Although the record indicates that there were other officers and supervisors of both Glenora and Ludwig, there is no contention of overlapping duties or responsibilities by such persons. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to manage Ludwig, no evidence that White exercised countermanding authority, I am persuaded that Ness's explanation is credible and so credit his testimony. Around the time that Glenora was ceasing to purchase processed milk (in glass bottles) from Wanzer and was commencing the purchase of processed milk (in glass bottles) from Ludwig, Pollich, a vice president and supervisor of Glenora, utilized one of Ludwig's offices while handling such transition. The explanation, testimony, and stipulation was to the effect that such location was more convenient for him because of the changing of routes, and that he had received no orders from Glenora or Ludwig thereto. On such occasion, Pollich, in addition to his duties for Glenora, received payments from Ludwig's drivers, received calls for Ludwig, reported such calls for Ludwig, and made deposits for Ludwig. Considering the limited and sporadic nature of Pollich's actions, the absence of evidence that Pollich asserted any policy influence or control at such times, I conclude and find that such conduct was ministerial in nature and does not reveal the exertion of control by Glenora over the affairs of Ludwig. After Glenora purchased Ludwig, Fred Ness sat in on half of a series of negotiating meetings between Ludwig and Local 330 of the Teamsters. As to such negotiations, the facts reveal that Ludwig was a part of a multiemployer bargaining group, that a Mr. Sorensen was spokesman, that Ness acted only as an observer, that Ernest Ludwig acted as spokesman for Ludwig, and that Ernest Ludwig was the one to execute any contract agreed upon. Ness, as indicated, wears three hats, part owner of Glenora, president of Glenora, and president of Ludwig. Considering all of the foregoing, I am persuaded that the facts reveal no more than potential control by Glenora. Had Ness wanted to exercise actual control as president of Ludwig or as president of Glenora, I am persuaded that he would have done so and would have actually asserted himself in such bargaining sessions. Considering the facts from an overall basis, I am persuaded that Ness, as president of Ludwig, was familiarizing himself with details and aspects of the Ludwig operation and business responsibilities. I am persuaded that the evidence does not reveal actual control of bargaining by Ness. Considering all of the foregoing, I conclude and find that the Ludwig Milk Company, for the purposes of (Sections 8(b)(4)(ii)(A) and (B) and 8(e), is a person other than Glenora Farms Dairy, Inc.15 E. The Events of April 197316 On April 2, 1973, President Ness, of Glenora, met with officials Burnier, Paulsen, and Glaser (all of the Respon- dent Union) at the Union's offices. On such occasion Ness told said officials that Glenora was planning to purchase is See Los Angeles Newspaper Gutl4 Local 69 (San Francisco Examiner, Division of the Hearst Corp.), 185 NLRB 303 16 The facts are based upon a composite of the credited aspects of the testimony of Ness, Burmer, Paulsen , and Glaser. lr Glenora did not process milk nor employ employees who worked on the processing of milk or dairy products. 18 I credit Burner's testimony to the effect that he was seeking a way to restrain Glenora in such action but at the time did not know how to do so. 19 Considering all of the facts, I do not credit Burmer's, Paulsen's or its milk from Ludwig. Ness also related that Glenora was planning to purchase Ludwig. It is clear that Ness and the union officials knew that the effect of such actions would be that Glenora would cease the purchase of a substantial quantity of processed milk from Wanzer, and that such processing of milk by Wanzer was performed by employees covered by the Union's contract with Wanzer. It is also clear that union officials had made it clear to Ness in late 1971 that its interest was to the effect that the processing of milk purchased or processed by Glenora 17 be done by employees of employ- ers covered by its contracts. What occurred at the April 2, 1973, meeting may be summarized as follows. Ness discussed Glenora's prob- lems, the need to get milk from Ludwig, and made some compromise type proposals. Paulsen and Glaser indicated dissatisfaction with Ness' proposed actions because "work" performed by employees of employers under contract with the Union would no longer be performed by employees of employers under contract with the Union. Burnier, apparently thinking the discussion was getting out of hand, stepped out of the room, had Ness called to a telephone, and suggested to Ness that he and Ness meet at a later date. Later, Ness and Burnier met on April 5, 1973, and pursued a discussion of Glenora's proposed actions. Burnier, for the Union, indicated to Ness that he could see no problems with respect to Glenora's purchase of milk from Ludwig, and Glenora's purchase of Ludwig.18 Around April 20, 1973, Burnier decided that he had a plausible basis to restrain Glenora from obtaining proc- essed milk from employers other than employers under contract with the Union. Thus, Burnier decided that an argument could be made that Glenora Farms Dairy, Inc., was a successor of old Glenora, that old "Glenora's" 1971 contract was applicable to Glenora's Farm Dairy, Inc.'s relationship with the Union, and that an argument as to a "multiemployer employee collective-bargaining unit" could be made.19 On April 20, 1973, Burnier left a message at the Union's office for Paulsen to call Ness, of Glenora, and tell him that he would have problems if he took the "bargaining unit work" and gave it to the employees in the Ludwig unit (represented by Teamsters Local 330). Burnier left word for Paulsen to tell Ness that if he had to blame anyone, to blame him (Burnier), that "Augie" (Burnier) had forgot something, had not been thinking as fast as he should have. Paulsen received the above message and contacted Ness's office. Ness was not there, but Paulsen ascertained where Ness was. Paulsen telephoned Ness at Ness' lawyer's office. Paulsen then related to Ness that Burnier had asked him to convey a message to him, that Glenora should not go ahead with the "Ludwig" deal, that Burnier said to Glaser's testimony relating to their belief of a "multiemployer employee collective-bargaining unit" covering the employees of Glenora. I am persuaded that such testimony constitutes a rationalization of desired position. If such a unit had existed prior to April 1973, it is clear that the union officials would have known of such and would have pursued their objectives accordingly. Burnier would not have had his problem of seeking a "solution" and deciding that he had a "solution" by virtue of "successor- ship" and "multiemployer employee bargaining unit" if one in fact had existed all the time DAIRY EMPLOYEES' LOCAL 754 489 blame him (Burner), that Bummer had forgotten some- thing. Ness told Paulsen that it was a little too late, that he had already gone ahead. Paulsen told Ness in effect that if he did, there would be problems.20 President Ness, of Glenora, and Respondent officials, Burner, Paulsen, and Glaser, met again at the union offices on April 24, 1973. Despite some differences in the testimonial versions of the witnesses (Ness, Burner, Paulsen, and Glaser), I find it clear that the union officials revealed their opposition to his commencement of pur- chase of milk from Ludwig, processed by Ludwig's employees, and the cessation of the purchase of milk processed by employees of employers under contract with the Union. I further find it clear that Burruer and the other union officials made it clear that if Glenora took its planned action of buying milk from Ludwig and not from an employer who was signatory to one of union's "Fluid Milk" contracts, the Union had a right to strike if such was done before the "dispute" had been arbitrated. After the above meeting Ness, for Glenora, sent the following telegram to the Respondent: GENTLEMEN, BECAUSE OF THE EQUISITION OF LUDWIG MILK COMPANY WE INTEND TO DISCONTINUE THE PURCHASE OF OUR SUPPLY OF DAIRY PRODUCTS FROM SIDNEY WANZER AND SONS INC AFTER THE EXPIRATION OF 30 DAYS FROM THE DATE OF THIS NOTICE GLENORA FARMS DAIRY INC FRED J NESS PRESIDENT The Respondent, by Burner, on April 27, 1973, transmitted the following letter to Glenora.21 Gentlemen: We have your telegram dated April 24, 1973 in which you state it is your intention to discontinue the purchase of your supply of dairy products from Sidney Wanzer and Sons, Inc. effective on or about May 24, 1973. The name of the company from whom you buy your dairy products is not our concern. Our concern springs from the fact that the work of processing these dairy products has been assigned to, and is presently being performed by, members of the bargaining unit whom we represent and, pursuant to the provisions of Article XXIII of the contract in effect between your company and this Union, this work may not be transferred or assigned to persons, other than members of this bargaining unit, except upon written agreement between Glenora Farms, Inc. and Dairy Employes' Union, Local 754. We would like to meet with representatives of your Company to see if this grievance may be resolved. If we are unable to resolve the grievance, it becomes 20 I credit Ness to the effect that Paulsen indicated that there would be "trouble." Ness's testimony does not appear reliable, however, to establish that the word "trouble" was used Rather, considering Burnier's testimony relating to the message he left Paulsen, and the logical consistency of events, I am persuaded that Paulsen conveyed the effect of such message as "problems." 21 The Respondent's position was reiterated by a letter by its attorneys, in similar effect on May 22, 1973, to the American Arbitration Association, copy to Ness 22 Respondent's counsel indicated on the record that he was not making an argument that the issues in this case were moot by the fact that the Union by such action was not invoking its "status quo" rights under the contract to engage in a strike. Respondent's counsel further stated, however, subject to the arbitration provisions of the contract, and we need to remind you of the Union's right to strike to maintain the status quo pending the outcome of the arbitration. We will await word from you as to a time and place for a meeting to discuss this very pressing matter. Yours very truly, August Burner, Secretary-Treasurer DAIRY EMPLOYES' UNION, Local 754 After the April 1973 purchase of Ludwig by Glenora, Ludwig continued to operate as a separate corporation. Glenora did not commence purchasing processed milk from Ludwig but continued until August 1973 to purchase its processed milk in glass bottles from Wanzer . The reason that Glenora did not cease purchasing milk in glass bottles from Wanzer and did not commence purchasing such milk (in glass bottles) from Ludwig is clearly established by the credited testimony of Ness, president of Glenora. Thus, Ness credibly testified that he did not make such change because of fear that the Union would strike Glenora. In the meantime Glenora filed the unfair labor charges that are involved in this case with the National Labor Relations Board. Later the NLRB regional office advised the Union that it would seek a court injunction (10(1)) prohibiting the conduct complained of in this case. The Union, by its attorney, advised Glenora's attorneys that Glenora could "transfer" the work to Ludwig. The main factor in the decision of the Union to so advise Glenora that it could transfer such work was the factor of expense of 10(1) litigation . Glenora's attorneys advised Ness of Glenora that he need not fear strike action. Thereupon Glenora ceased purchasing its processed milk (in glass bottles) from Wanzer and commenced on August 4, 1973, to purchase its milk (in glass bottles) from Ludwig.22 F. Conclusions 8(bx4Xii)(A) and (B) Considering all of the foregoing, I conclude and find that the Respondent, by Paulsen's threat of problems on April 20, 1973, by Burnier's threat of potential strike action on April 24, and by Burner's letter of April 27, 1973, in similar vein, engaged in conduct violative of Section 8(b)(4Xii)(A) and (B) of the Act. Thus, Respondent threatened Glenora, a person engaged in commerce or an industry affecting commerce, with the object of requiring Glenora to agree to cease from dealing in the products of Ludwig or any employer not signatory to a "Fluid Milk" contract with the Union. Such conduct is violative of Section 8(bx4)(ii)(A) of the Act. Similarly, Respondent that he was not waiving such argument. It is clear that the Union did not relinquish its contentions that it was entitled to the work under the contract, had a right to arbitration and a right to strike under the "status quo" provisions of the contract. Under the circumstances the Union's action in so advising Glenora that it could "transfer" work to Ludwig is equivalent to the abidance with a court injunction pending litigation. The record as a whole reveals that the Union in no way has abandoned its contentions of legitimacy of its conduct involved or of its alleged contractual right. Once litigation is over, unless remedial orders were provided, the Union would be free to resume such conduct. Accordingly, it is clear that the Union's conduct in advising Glenora's attorneys that Glenora could "transfer" work to Ludwig does not make the issues in this proceeding moot. 490 DECISIONS OF NATIONAL LA6')R RELATIONS BOARD threatened Glenora with an object of forcing or requiring Glenora to cease dealing with Ludwig or any other employer not signatory to a "Fluid Milk" contract with the Union. Such conduct is violative of Section 8(b)(4)(ii)(B) of the Act. The General Counsel (and the Charging Party) presented evidence directed to proving, and argued in effect, that the Respondent had no dispute with Glenora as to work performed by employees of Glenora, that the Respondent did not represent employees of Ludwig, that Glenora and Ludwig were separate "persons," and that Respondent in real effect was attempting to have a collective-bargaining agreement with Glenora, (covering a single employer bargaining unit, and containing lawful "work preserva- tion" clauses and arbitration, "status quo" and "strike" clauses) interpreted in a broader and unlawful manner. Thus, Respondent's contention that such contractual relationship was on a "multiemployer employee bargaining unit" basis made illegal what would otherwise be legal. The factual findings in this case support the General Counsel's and Charging Party's contentions. The Respondent contends in effect that Glenora and Ludwig are in effect one employer or person, that it's contract with Glenora covers employees in a "multi- employer employee bargaining unit," that its dispute with Glenora is primary in nature, and that its actions were lawful because within its contract rights. The factual findings in this case do not support such contentions. The Respondent's claimed defense, that its conduct was primary in nature, essentially has been disposed of in the factual resolution revealing that Glenora and Ludwig were separate persons within the meaning of Section 8(a)(4XnXA) and (B) and Section 8(e). Further, Respon- dent's dispute as to who should process milk purchased by Glenora was secondary in nature both as to Glenora and Ludwig in that Respondent did not represent processing employees of either Glenora or Ludwig.23 Academically, since Respondent claimed the right to do the processing work on milk purchased by Glenora, and since the dispute arose from Glenora's decision to purchase processed milk from Ludwig, Respondent's dispute may be said to have been with Ludwig, even though secondary in nature. The Respondent's claimed defense that it had contractu- al rights to such work based upon a "multi-employer employee bargaining unit" contractual relationship with Glenora has been disposed of by factual findings to the opposite effect.24 Thus, the facts reveal that the Glenora - Respondent contract (1971) covers a single-employer collective-bargaining unit. Similarly, the Respondent's claimed defense of 'work preservation" is disposed of by the findings that the collective-bargaining agreement involved25 is that between Respondent and Glenora. The Respondent's claimed defense that its threat of 23 Although the contract between Respondent and Glenora refers to "processing" employees, it is a form type contract, and Glenora has never employed processing employees. 24 See Local Union No. 282, international Brotherhood of Teamsters (D Fortunato Inc), 197 NLRB 673, and National Woodwork Manufacturers Association v N L R B., 386 U.S. 612 (1967) 25 The Respondent's contract with Glenora contains "work preserva- tion" and arbitration clauses As applied or interpreted with respect to a "single employer employee bargaining unit ," such clauses are lawful on their face. If such contract covered employees in a "multi-employer strike action was protected by its contract with Glenora is similarly disposed of by the findings that such agreement is not that pertaining to a "multiemployer employee collec- tive-bargaining unit." The Respondent's contract gave it such rights only with respect to "work" in the single employer unit. In sum, as indicated, the facts reveal that Respondent, as alleged, has engaged in conduct violative of Section 8(b)(4)(ii)(A) and (B) of the Act. I so conclude and find. G. The Alleged 8(e)(Conduct) The General Counsel contends in effect that the Respondent and Glenora entered into an agreement violative of Section 8(e) of the Act and that Glenora "acquiesced" the Union's threats concerning what would occur if Glenora purchased milk from Ludwig or other employers not signatory to the "Fluid Milk" contracts with the Union. In my opinion, the evidence does not reveal that Glenora agreed with the Respondent in such regard. The facts reveal that Glenora succumbed to the Respondent's threats and did not commence purchasing milk from Ludwig until after the threats were removed as a result of pending court litigation. Glenora, however, by filing unfair labor charges in this case, revealed that it was not agreeing with the Respondent as to an 8(e) arrange- ment. Although acquiescence may constitute evidence from which one can infer an implied agreement, such is not always the case. Considering all of the facts, I conclude and find that the Respondent and Glenora have not entered into an 8(e) arrangement. H. The "Collyer" Defense26 The Respondent contends that the instant proceeding should be deferred to arbitration. Considering the issues and the facts in this case, I reject such contention. The overall facts reveal that the Respondent does not have a contract with Glenora, the terms thereof which would warrant arbitration of the instant issues .27 Further, assuming that this proceeding had been deferred and said arbitration had resulted in a decision favorable to the Respondent's position, under the facts of this case the Board would not consider itself bound by such arbitration and would proceed to a disposition of the proceeding on the merits thereof. Further, assuming that this proceeding had been deferred and said arbitration had resulted in a decision adverse to Respondent's contentions, it is clear that the Board would proceed to the merits of this case. I am also convinced that the time factors and costs, and the stage of litigation of this proceeding all require a rejection employee bargaining unit," such clauses would also be lawful on their face. The gravamen of the illegality of Respondent's conduct is that it has attempted to construe that its contract covers a multiemployer employee bargaining unit and to thereby reach employers or employees outside of its contractual unit. 28 Collyer Insulated Wire, 192 NLRB 837. 27 Had the Respondent established that Glenora's employees were part of a multiemployer employee bargaining unit and that the contract involved covered such unit, different conclusions might be warranted. DAIRY EMPLOYEES' LOCAL 754 of Respondent's contention that the matter should be deferred to arbitration. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Employer's operations described in section I, above, have a close, intimate, and substantial relationship 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. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Glenora Farms Dairy, Inc., and Ludwig Milk Company are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Dairy Employees' Union, Local 754, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening, restraining, and coercing persons engaged in commerce or in an industry affecting commerce with an object of forcing or requiring employers to enter into an agreement prohibited by Section 8(e) of the Act, the Respondent has engaged in conduct violative of Section 8(b)(4)(ii)(A) of the Act. 4. By threatening, restraining, and coercing employers engaged in commerce or in an industry affecting commerce with an object of forcing or requiring persons to cease using, selling, handling, or otherwise dealing in the products of any other producer, processor, or manufactur- er and to cease doing business with other persons, the Respondent has engaged in conduct violative of Section 8(b)(4)(ii)(B) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER28 Respondent, Dairy Employees' Union, Local 754, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening, restraining, and coercing Glenora Farms Dairy, Inc., or any other person engaged in commerce or in an industry affecting commerce, with an 491 object of forcing or requiring such persons to enter into an agreement which is prohibited by Section 8(e) of the Act. (1^) Threatening, restraining, and coerciitp Glenora Farms Dairy, Inc., or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring persons to cease -sing, selling, handling, or otherwise dealing in the products of any other producer, processor, or manufacturer and to cease doing business with other persons. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at Respondent's offices and meeting halls, and all places where notices to members are customarily posted, copies of the attached notice marked "Appen- dix."29 Copies of said notice on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to Glenora Farms Dairy, Inc., and others for information, and, if they are willing, for posting by them in all locations where notices to employees are customarily posted. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith. It is further ordered that the allegations of unlawful conduct not specifically found to be violative herein be dismissed. 28 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 29 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 THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten, restrain, and coerce Glenora Farms Dairy, Inc., or any other person engaged in commerce or in an industry affecting commerce, with an object of forcing or requiring such persons to enter into an agreement which is prohibited by Section 8(e) of the Act. WE WILL NOT threaten, restrain, and coerce Glenora Frams Dairy Inc., or any other person engaged in commerce or in an industry affecting commerce, with 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an object of forcing or requiring persons to cease using, selling, handling or otherwise dealing in the products of any other producer, processor, or manufacturer and to cease doing business with other persons. DAIRY EMPLOYEES' UNION, LocAL 754, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA (Labor Organization) Dated By (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 concerning this notice or compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881, 219 S. Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.