NLRB v. Adams Dairy, Inc.
Decision Date | 08 September 1965 |
Docket Number | No. 17171.,17171. |
Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADAMS DAIRY, INC., Respondent. |
Court | U.S. Court of Appeals — Eighth Circuit |
Norton J. Come, Asst. General Counsel, N.L.R.B., Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel and Laurence S. Gold, Attorney N.L.R.B., Washington, D. C., for petitioner.
J. Leonard Schermer, of Shifrin, Treiman, Agatstein & Schermer, St. Louis, Mo., Sylvan Agatstein, for Adams Dairy.
Harry H. Craig, Carroll C. Gilpin, St. Louis, Mo., for charging party as amicus curiae.
Before VOGEL, VAN OOSTERHOUT and RIDGE, Circuit Judges.
On September 12, 1963, this court, on a petition from the National Labor Relations Board, denied enforcement of the Board's order in all respects save one. National Labor Relations Board v. Adams Dairy, Inc., 8 Cir., 1963, 322 F.2d 553. The Board petitioned the Supreme Court for certiorari and on January 18, 1965, such petition was granted. Thereafter, by per curiam order, 379 U.S. 644, 85 S.Ct. 613, 13 L.Ed.2d 550 the prior judgment of this court was vacated and the case was remanded to us "for reconsideration in light of Fibreboard Paper Products Corp. v. Labor Board", 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233, decided by the Supreme Court subsequent to our opinion in Adams Dairy.
Upon remand, we directed that additional briefs be submitted and the case be reargued. That has been done. In our prior opinion, at page 562 of 322 F.2d, we said:
"We hold here that the decision on the part of Adams to terminate a phase of its business and distribute all of its products through independent contractors was not a required subject of collective bargaining."
After consideration of the additional briefs filed by the parties, the oral arguments of counsel, and viewing this situation in the light of Fibreboard, as directed, we believe our original opinion to have been correct. We conclude that Adams Dairy is so factually distinguishable from Fibreboard as to take Adams Dairy outside the orbit of the Fibreboard holdings.
Fibreboard arose out of a dispute between the Fibreboard Paper Products Company and a union representing that company's maintenance employees. In September of 1958 the union and company had entered into the latest of a series of collective bargaining agreements which was to expire on July 31, 1959, upon 60 days' notice by either the union or the company. The union gave timely notice. The company delayed meeting with the union until July 27, 1959, at which time the union was informed that Fibreboard intended to "let out" the maintenance work to an independent contractor to save on costs. By July 30th the contractor had been secured on the basis of costs of the operation plus a fixed fee of $2,250 per month. The union was told that in view of the hiring of the contractor, a new agreement negotiation session would be futile and none was had. Fibreboard was charged with violations under §§ 8(a) (1), 8(a) (3) and 8(a) (5) of the National Labor Relations Act and a violation was upheld under § 8(a) (5).1 The facts in the Adams Dairy case are fully and adequately set out in our prior opinion. At this point it is only necessary to say that Adams Dairy was not found by this court to be in violation of §§ 8(a) (5) and (1) of the National Labor Relations Act by neglecting to bargain with the employees' certified union bargaining representative, the Independent Wholesale Dairy Products Salesmen Association, when discharging their driver-salesmen and replacing them with independent contractors.
As a preliminary matter to the further comparison of these two cases, we point out that the Supreme Court, in Fibreboard, carefully limited its decision to the facts presented in that case. At page 209 of 379 U.S., at page 402 of 85 S.Ct., Mr. Chief Justice Warren, who wrote the majority opinion, stated:
"* * * We agree with the Court of Appeals that, on the facts of this case, the `contracting out\' of the work previously performed by members of an existing bargaining unit is a subject about which the National Labor Relations Act requires employers and the representatives of their employees to bargain collectively." (Emphasis supplied.)
At page 215 of 379 U.S., at page 405 of 85 S.Ct., the opinion continues:
(Emphasis supplied.)
In footnote No. 8 on page 215 of 379 U.S., on page 405 of 85 S.Ct., the court states:
In a separately concurring opinion, joined in by Mr. Justice Douglas and Mr. Justice Harlan, Mr. Justice Stewart pointed out at page 218 of 379 U.S., at page 407 of 85 S.Ct.:
(Emphasis supplied.)
Thus the Supreme Court has not held that all forms of contracting out are subject to collective bargaining. For reasons set out below, we believe that the situation in Adams Dairy is so factually distinguishable from that in Fibreboard as to take Adams Dairy outside of the scope of the collective bargaining requirements.
Turning now to the cases themselves, we note, first, that the decision to contract out the maintenance work in Fibreboard did not change the basic operation of the company involved. The maintenance work was let out under a terminable contract on a cost-plus basis. The contractor performed the same work previously performed by company employees on company premises with company machines and equipment. The contractor was under the direct control of the company. The company directly enjoyed the benefits of the contractor's work. As stated by the Supreme Court in Fibreboard, at page 213 of 379 U.S., at page 405 of 85 S.Ct.:
The separately concurring opinion states at page 219 of 379 U.S., at page 407 of 85 S.Ct.:
* * *"
In Adams Dairy, on the other hand, a basic operational change did take place when the dairy decided to completely change its existing distribution system by selling its products to independent contractors. After the decision was made by the dairy to sell its products dockside to independent distributors, all of the trucks used previously by driver-salesmen were sold to independent distributors. Adams Dairy did not finance the sale, nor in any way arrange for such financing. The routes driven by the independent distributors, though covering a similar territory, did not correspond to the previous routes of the driver-salesmen. The independent distributors took title to the products at dockside and Adams, thereafter, legally had no concern with what was done with the products. The distributors were solely responsible for selling the products. The work done by the independent contractors, contrary to the situation in Fibreboard, was not primarily performed in the Adams plant for the benefit of the dairy. Adams was not directly concerned with whether or not any given distributor sustained a profit or loss, as would have been the situation with the driver-salesmen. The only...
To continue reading
Request your trial-
San Clemente Ranch, Ltd. v. Agricultural Labor Relations Bd.
...is not contemplated in this area under the history and usage of § 8(a)(5)." (29 U.S.C. § 158 (a)(5).) 18 (N. L. R. B. v. Adams Dairy, Inc. (8th Cir., 1965) 350 F.2d 108, 111.) The right to completely go out of business is untrammeled even if the decision is prompted by vindictive animus aga......
-
First National Maintenance Corporation v. National Labor Relations Board
...bargaining mandated by § 8(a)(5). See, e. g., NLRB v. Royal Plating & Polishing Co., 350 F.2d 191, 196 (CA3 1965); NLRB v. Adams Dairy, Inc., 350 F.2d 108 (CA8 1965), cert. denied, 382 U.S. 1011, 86 S.Ct. 619, 15 L.Ed.2d 256 (1966). And, under § 8(a)(5), bar- gaining over the effects of a d......
-
Local 777, Democratic Union Organizing Committee, Seafarers Intern. Union of North America, AFL-CIO v. N.L.R.B.
...courts have also been careful not to "significantly abridge (the management's) freedom to manage its own affairs." NLRB v. Adams Diary, 350 F.2d 108, 111 (8th Cir. 1965). "In each case the interests of the employees and the purpose of the National Labor Relations Act . . . must be carefully......
-
Brockway Motor Trucks, Div. of Mack Trucks, Inc. v. N.L.R.B.
...reconsideration in light of Fibreboard likewise concluded that the facts of its case were distinguishable from those in Fibreboard. 51 In Adams Dairy, the company had decided to terminate the distribution of its own milk. The court, in ruling that such a decision was not a mandatory subject......