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National Labor Relations Board v. Milk Drivers' Union

January 11, 1968

NATIONAL LABOR RELATIONS BOARD, PETITIONER
v.
MILK DRIVERS' UNION, LOCAL 753, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA ET AL., RESPONDENTS. KORTH TRANSPORTATION COMPANY, INTERVENOR



Hastings, Chief Judge, and Castle and Swygert, Circuit Judges.

Author: Castle

CASTLE, C. J.:

This case is before the Court upon the petition of the National Labor Relations Board to enforce an order of the Board issued on June 27, 1966, against the respondent Union*fn1 and the respondents Associated Milk Dealers, Inc., and certain of Associated's member dairies. The Board's decision and order are reported at 159 NLRB No. 128.

The Board found and concluded that the Union, Associated and the dairies violated Section 8(e) of the Act*fn2 by entering into an agreement prohibiting the dairies from utilizing the services of independent over-the-road haulers, not under a collective bargaining contract with Local 753, for the transportation of raw milk to the processing dairies. The Board's order requires the respondents to cease and refrain from giving effect to the agreement insofar as it violates Section 8(e) and to post designated notices.

The record discloses that Local 753 represents for purposes of collective bargaining transportation workers in the dairy industry in the metropolitan Chicago area whose transportation equipment is garaged or based in the Chicago metropolitan area. The territorial limitation on the jurisdiction of Local 753 is imposed by the International Teamsters Union. Drivers operating in the metropolitan Chicago milk industry whose equipment is based elsewhere are not subject to the jurisdiction of Local 753. A number of haulers who transport raw milk from Wisconsin to dairies in the metropolitan Chicago area are independent contractors who use their own equipment, operated by their own employees, and are parties to collective bargaining agreements with Wisconsin Locals of the International Teamsters Union.*fn3 Other independent over-the-road haulers engaged in the transportation of raw milk from country sources to the processor-dairies, and whose equipment is garaged in the Chicago metropolitan area, have collective bargaining agreements with Local 753 and their employees are members of Local 753. All but two of the approximately 28 dairies involved were using independent haulers rather than their own employees to bring their raw milk supply to their plants. These two dairies had but 15 employees engaged in the transportation of raw milk while the independent haulers who do the bulk of the industry's raw milk haulage had over 100 employees so engaged. For the past thirty years at least, independent haulers have done the bulk of the transportation of raw milk from country sources in the Chicago metropolitan area milk industry. And, as above indicated, not all of the dairies use haulers of raw milk whose equipment is garaged or based in the Chicago metropolitan area and whose employees are members of Local 753.

Following contract negotiations in 1964 between Local 753 and Associated, who represented its member dairies, the respondent dairies during May 1964 executed collective bargaining agreements with Local 753 which in Article 43-B provide:

" . . . All Dealers must employ members of Local 753 to operate the transportation equipment. The final date for full compliance shall be August 15, 1964."

The term "dealers" is used in the agreements as descriptive of the signatory dairies.*fn4

The issue presented for our determination on review is whether substantial evidence on the record considered as a whole supports the Board's determination that the object of Article 43-B was to prohibit the dairies from dealing with the independent haulers whose employees are members of the Wisconsin locals, and therefore was a violation of Section 8(e).

If the Board's factual findings are so supported its conclusion that the contract clause violated Section 8(e) as a form of secondary boycott is correct. National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612, 18 L. Ed. 2d 357, 87 S. Ct. 1250. Cf. NLRB v. Milk Wagon Drivers' Union Local 753, 7 Cir., 335 F.2d 326, 328-329. In the latter case this Court said:

"The record as we decide gives substantial support to the Board's findings of the Union's unlawful objectives -- to forbid contracting out of hauling except to employers whose employees were members of Local 753, and to compel Wanzer to disrupt an existing business relationship with PMA because Quality's drivers were not members of Local 753."

The Union contends that the record properly appraised and evaluated does not support the Board's finding as to the objective of Article 43-B. In this connection the Union urges that the objective of the clause was merely to prohibit the contracting out of the over-the-road hauling and thereby to require the dairies to use their own employees, the bargaining unit represented by Local 753, for such purpose, and that such objective is a legitimate goal of collective bargaining.

The record reflects that the Board's findings with respect to the objective of Article 43-B were not arrived at merely by reference to its express language. It was observed that the provisions "cannot be read in a vacuum". The Board's determination of the objective of the clause was based on a combination of factors, including the context of the circumstances leading up to the Union's demand for such clause, the labor relations history of the subject, representations made by the Union's officials and agents concerning the effect of the clause, and the consequences of viewing the clause as a total ban on contracting out of over-the-road hauling on the segment of Local 753's membership currently so employed by independent haulers.

The Union, on the basis of the contract's union security clause, equates the expression "members of Local 753" used in Article 43-B with "employees" of the signatory dairy and interprets the clause as imposing merely a total ban on the contracting out of the hauling. But consideration of the body of the evidence relating to the factors above mentioned negates a conclusion that such was the objective of the clause or that it was intended to do other than eliminate the limiting effect, numerically, on Local 753's potential source of prospective members resulting from the operation of the Wisconsin-based ...


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