MEAT AND HIGHWAY DRIVERS, DOCKMEN, ETC. v. NLRB, 18091.

• Decision Date: 25 June 1964
• Docket Number: No. 18091.,18091.
• Citation: 335 F.2d 709,118 US App. DC 287
• Parties: MEAT AND HIGHWAY DRIVERS, DOCKMEN, HELPERS AND MISCELLANEOUS TRUCK TERMINAL EMPLOYEES, LOCAL UNION NO. 710, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 287, 335 F.2d 709 (1964)

MEAT AND HIGHWAY DRIVERS, DOCKMEN, HELPERS AND MISCELLANEOUS TRUCK TERMINAL EMPLOYEES, LOCAL UNION NO. 710, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 18091.

United States Court of Appeals District of Columbia Circuit.

Argued February 13, 1964.

Decided June 25, 1964.

COPYRIGHT MATERIAL OMITTED

Mr. Bernard Dunau, Washington, D. C., for petitioner.

Mr. Melvin J. Welles, Attorney, National Labor Relations Board, with whom Messrs. Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Mrs. Janet Kohn, Attorney, National Labor Relations Board, were on the brief, for respondent.

Messrs. Earl G. Spiker and P. Gordon Stafford, Washington, D. C., filed a brief on behalf of Swift & Company, as amicus curiae.

Mr. Sidney A. Diamond, New York City, filed a brief on behalf of Armour & Co., as amicus curiae.

Before BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge:

The National Labor Relations Board has found that certain subcontracting clauses of petitioner's bargaining agreements and proposals are void under § 8 (e)¹ of the Labor Act, and that economic action to obtain their provisions violated § 8(b) (4) (i) (ii) (A) and (B).² The subcontracting clauses involved will be referred to as the work allocation clause,³ the union standards clause,⁴ and the union signatory clauses.⁵ By votes of 3-2, 4-1, and 5-0, respectively, the Board found these clauses to be secondary, and thus unlawful. The union petitions to review and set aside the Board's decision,⁶ and the Board cross-petitions for enforcement.

The union here represents truck drivers employed by Wilson, Armour, Swift, and other Chicago packing companies who deliver meat and meat products in the Chicago area. The factual background of the dispute, as to which there is general agreement, is well stated in the separate opinion of Chairman McCulloch of the Board:

"For at least 20 years, meat packers in Chicago have agreed with the union that deliveries of meat products by truck within the Chicago area would be made directly by the packers, using their own equipment driven by employees represented by the union. During most of this period, deliveries to customers in the Chicago area originated from the packers\' plant in Chicago. Toward the end of the last decade, extensive changes in the distribution of meat products were effected as the major packers moved much of their slaughtering and processing operations outside of Chicago. The relocation of Swift, Armour, and Wilson, the three major packers, caused a sharp reduction in employment both of inside plant workers and of local drivers. Of about 330 truckdrivers employed by Swift, Armour, and Wilson at the beginning of the prior contract term in May 1958, only 80 were still employed 3 years later when negotiations began for a new agreement. Drivers employed by the packers continued to make deliveries from the remaining plant facilities in Chicago to customers within a 50 mile radius, but deliveries to customers within the same area were increasingly being made by over-the-road drivers whose runs originated from the packers\' facilities outside the Chicago area. It was to the problem of recovering the jobs lost by the local drivers in the Chicago area and retaining those still performed there that the Union addressed itself in the 1961 negotiations."

I.

The union proposals for the bargaining agreement, which were found by the Board to violate § 8(e), include the work allocation clause⁷ which requires that all deliveries in Chicago, whether from within the city or from out of state, be made by local employees covered by the agreement. Under this provision the packing companies would be required to divide into two stages their shipments from out of state to Chicago consignees, terminating the interstate segment at the Chicago terminal.

The Board found that the delivery of out-of-state shipments to Chicago consignees was work historically performed, not by local drivers who were members of the bargaining unit, but by over-the-road drivers employed by interstate carriers. Thus, according to the Board, since such deliveries were not bargaining unit work, they could not be the subject of a clause which would allocate that work to the bargaining unit; to do so would require the packers to cease doing business, at least in part, with the interstate carriers, violating § 8(e). In short, the Board says that the work allocation clause here provides for "work acquisition," not "work preservation," and consequently it is secondary in nature, falling outside the ambit of the cases declaring certain subcontracting clauses primary.⁸

Resolution of the difficult issue of primary versus secondary activity, as it relates to this case, involves consideration of two factors: (1) jobs fairly claimable by the bargaining unit, and (2) preservation of those jobs for the bargaining unit. If the jobs are fairly claimable by the unit, they may, without violating either § 8(e) or § 8(b) (4) (A) or (B), be protected by provision for, and implementation of, no-subcontracting⁹ or union standards¹⁰ clauses in the bargaining agreements.¹¹ Activity and agreement which directly protect fairly claimable jobs are primary under the Act. Incidental secondary effects of such activity and agreement do not render them illegal.¹² Thus the "cease doing business" language in § 8(e) cannot be read literally¹³ because inherent in all subcontracting clauses, even those admittedly primary, is refusal to deal with at least some contractors.¹⁴

Applying these principles to the work allocation clause here, we find that delivery in the Chicago area, irrespective of origin of the shipment, is work fairly claimable by the union. It has been said "that a union has always been free to bargain for the expansion of the employment opportunities within the bargaining unit." Comment, 62 MICH.L. REV. 1176, 1190 (1964). The work here claimed is of a type which the men in the bargaining unit have the skills and experience to do. It would be difficult to deny that "a clause covering non-traditional work may be just as consecrated to the primary objective of bettering the lot of the bargaining unit employees and just as foreign to the congressional purpose for section 8(e) as those clauses involving only the work traditionally done within the bargaining unit." Id. at 1189.

Moreover, in the case before us, we have not work acquisition but work recapture. It is true, as the Board finds, that in the past out-of-state shipments have on occasion been delivered to consignees in the Chicago area by the interstate carrier directly, in spite of the fact that the expiring bargaining agreement with the employers here covered deliveries "to a distance not exceeding 50 miles from the Chicago Stock Yards * * *." But when the expiring agreement was originally entered into, practically all of the packing houses from which deliveries to the Chicago area were made were located in Chicago. Consequently, the union had no concern with the occasional shipment into the area via interstate carrier.

During the period of the expiring agreement, however, there was a dramatic change in the manner in which the employers here conduct their business. Most of the packing houses have been moved out of Chicago, so that now most of the shipments for the area are out-of-state shipments. It is understandable, therefore, that the union, in bargaining for a new agreement, turned its attention to these out-of-state shipments in an effort to require that the last leg thereof be made by local drivers. Thus the union, under its new proposal, is attempting not only to retain jobs for local drivers, but to recapture some of the work lost by the movement of packing houses out of Chicago. Unquestionably, this work is fairly claimable by the local drivers, and their union's efforts in their behalf in that direction fall easily within the legitimate area of collective bargaining. We agree with Chairman McCulloch, joined by Member Brown, in dissenting from the opinion of the Board on this point:

"Deliveries to consignees in the Chicago area, regardless of origin, can justifiably be considered to be work of the employees within the union\'s unit. Even if it had never been customarily performed by unit members when it was part of an interstate haul, it is nevertheless so closely allied — and is in part identical — to the local deliveries previously recognized for almost 20 years to be unit work as to make bargaining about it mandatory. To hold otherwise is to say that a union may not seek to bargain with an employer either about the quantum of work, or the qualifications of its members to perform closely related work, whenever technological changes or mere changes in methods of distribution are to be effected."

Since we view this attempt on the part of the union to maintain and regain the local delivery jobs for members of the bargaining unit as a typical primary activity, we hold the work allocation clause valid under § 8(e), and economic activity to obtain it lawful under § 8(b) (4).

II.

The union proposal also contained a union standards subcontracting clause which read:

"In the event that the Employer does not have sufficient equipment at any given time to deliver his then current sales or consignments within the Chicago city limits, it may contract with any cartage company whose truckdrivers enjoy the same or greater wages and other benefits as provided in this agreement for the making of such deliveries."¹⁵

The Board's basic reason for finding the subcontracting clause illegal is its view that a work standards clause accords "the Union a veto over the decision as to who may receive the signatory employer's subcontracts" by defining "the persons with whom the...