Borden, Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1970

181 N.L.R.B. 109 (N.L.R.B. 1970)

BORDEN, INC. 109
Borden , Inc. and Sales Drivers and Helpers, Local
Union No. 274, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case 28-CA-1813
February 12, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On October 7, 1969, Trial Examiner Herman
Corenman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General
Counsel 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Borden, Inc.,
Phoenix, Arizona, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
referred to as the Board), by the Regional Director for
Region 28, issued a complaint on February 28, 1969,
against Borden, Inc ' (herein referred to as Borden or the
Respondent). The complaint alleges that the Respondent,
in violation of Section 8(a)(5) and 8(a)(1) of the Act,
unilaterally changed the terms and conditions of
employment of its retail and wholesale drivers and entered
into individual agreements with its drivers, in derogation
of the Union's representative status without complying
with Section 8(d) of the Act; unilaterally and without
affording the Union an opportunity to bargain, changed
its operations by purporting to change the status of
employee drivers to independent contractors; unilaterally
entered into individual agreements with its
driver-employees purporting to change their status from
employees to independent contractors without notice to or
consultation with the Union and without affording the
Union an opportunity to bargain regarding the effect of
such unilateral changes upon rates of pay, wages, hours of
employment and other conditions and terms of
employment; unilaterally eliminated the routes of
employee-drivers and transferred employees to less
desirable routes because they failed and refused to bargain
individually with the Respondent,. and thereby caused
three employee-drivers, namely Carl Paige, Robby
Burleson, and James Owen, to terminate their
employment;' and continues to threaten its
driver-employees with termination of employment if they
fail or refuse to bargain individually with respect to terns
and conditions of employment purporting to change their
status from driver-employees to that of independent
contractors.
Pursuant to notice, a hearing was held before me in
Phoenix, Arizona, on April 29 and 30, and May 1, 2, 7, 8,
and 9, 1969. All parties were present and represented by
counsel. They were afforded full opportunity to be heard,
to introduce evidence relevant to the issues, to examine
and cross-examine witnesses, to present oral argument,
and to file briefs. Oral argument was waived. Briefs have
been filed with me by counsel for the General Counsel, the
Union, and the Respondent, and they have been carefully
considered.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor while
testifying, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
-We note the following minor error in the Trial Examiner's Decision
which in no way affects the result in this case . The Trial Examiner found
that during the July 8, 1968, meeting between the Union and the
Respondent , Union Representative Case requested the terms of the vendor
agreement and was denied them , whereas the record shows only that the
terms were not provided and does not reveal whether or not Case made a
request for them at that meeting
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Trial Examiner: Upon the charge
filed December 17, 1968, by Sales Drivers and Helpers
Local Union No. 724, International Brotherhood of
Teamsters, Chauffeurs and Helpers of America
(hereinafter referred to as the Union), the General
Counsel of the National Labor Relations Board (herein
The Respondent is a corporation created under the laws
of the State of New Jersey It is engaged in the processing
and distribution of dairy products in numerous plants and
facilities in a number of states throughout the United
States, including an operation in Phoenix, Arizona, where
it processes, distributes, and sells dairy products to retail
and wholesale customers throughout the Phoenix
metropolitan area and its environs. During the last
12-month period, the Respondent, in the course and
conduct of its business operations, processed, sold, and
distributed products valued in excess of $500,000, and
purchased and received goods and materials valued in
The complaint was amended at the hearing to show the correct name of
the Respondent to be Borden, Inc.
'Par 12 (f) of the complaint was amended at the hearing to specify Carl
Paige, Robby Burleson, and James Owen as drivers who were caused to
terminate their employment with the Respondent
181 NLRB No. 19
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excess of $50,000 at its operations in Phoenix„ Arizona,
from points outside the State of Arizona. I find, upon the
basis of the foregoing, that the Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement of Fact
The Respondent is one of a number of employers
comprising a multiemployer group which over the years
has had contractual relationships with the Union On June
13, 1968, the Respondent, as a member of this
multiemployer group, entered into a renewal contract with
the Union covering, among other employees, the retail
and wholesale route drivers. No mention was made to the
Union during the course of contractual negotiations that
the Respondent was going to go "vendor" or "owner
operator." The contract covering wages, hours, and
working conditions was for a term extending from May 1,
1968, to April 30, 1971.
During the summer of 1968, the Respondent converted
many of its wholesale and retail routes to a system
pursuant to which it considered the drivers to be
independent contractors. In the process, the Respondent
completely ignored the union contract terms with respect
to the wages, hours, and working conditions of the drivers
who manned these wholesale and retail routes. For
example, the contract provided that retail route drivers
would be compensated on a stipulated commission basis
and that the wholesale route drivers would be
compensated on an hourly rate of pay with a guaranteed
workweek and time and a half for hours over 40 in a
5-day workweek. The contract also provided for a
vacation allowance, 'health insurance, seniority, grievance
procedure, and other typical collective-bargaining
provisions. Under the new system established by the
Respondent on several retail and wholesale routes
beginning in July 1968 the Respondent presumed the
drivers under the new system to be independent
contractors within the meaning of Section 2(3) of the Act '
On this assumption, those drivers were deprived by the
Respondent of the contract benefits and instead were dealt
with under a plan which purported to treat them as
though they were independent contractors .I Their
relationship to the Respondent will be set forth in greater
detail later in this decision. The retail driver who became
a vendor was no longer to be compensated on the
contractual commission basis, etc.; the wholesale driver
who became a vendor was no longer to be paid the
stipulated contractual wage, etc. Instead, both types of
vendors were to purchase dairy products from the
Respondent at prices set by the Respondent. The
wholesale vendors were required to deliver the products to
wholesale purchasers on their routes at prices set by the
Respondent. The retail vendors were to deliver the dairy
products to households on their routes at suggested list
prices from which they were permitted to deviate. The
difference between the purchase price and the selling price
was to be the vendor's gross profit His net profit would
be determined after deducting his expenses of operation;
namely, after deducting cost of truck operations,
insurance , taxes, depreciation, etc.
It is admitted by the Respondent that the conversion of
the retail and wholesale routes from the system of
employee route drivers to vendor was undertaken without
complying with the provisions of Section 8(d)(1), (2), (3),
and (4) of the Act 5 The Respondent, while conceding that
it did not comply with Section 8(d)(1), (2), (3), and (4) of
the Act before converting these routes from employee
routes to vendor routes asserts it was not required to do
so because the individuals, whether former employees or
newly engaged from the outside, were true independent
contractors within the meaning of the Act. Therefore,
asserts the Respondent, the terms of the contract were not
modified by this action because, as independent
contractors, they were not covered by the contract. The
General Counsel contends that this new relationship
between these vendors and the Respondent has not
abrogated the employee status of the vendors; hence, the
Respondent by treating them as excluded from the
contractual unit, and in depriving them of the contract
terms, thereby violated Section 8(d) of the Act and
refused to bargain in violation of Section 8(a)(5) of the
Act The General Counsel further contends that even if it
were to be assumed arguendo that the vendors were in
fact independent contractors, the Respondent in any event
violated Section 8(a)(5) of the Act in contracting out unit
work without first bargaining in good faith with the Union
on its decision to contract out such work and with respect
to its impact on employees affected by the subcontracting.
The Respondent asserts that it performed its legal
bargaining duty under the Act before subcontracting and
that the Union assented to its action beforehand.
There is no claim that the action of the Respondent in
converting the routes from the driver system to the vendor
system was inspired by antiunion motives. The
Respondent contends, and it is not disputed, that it
inaugurated the vendor system in its Phoenix operations in
the hope and expectation of placing the Phoenix
operations on a more profitable basis, or in any event, in
the hope of diminishing its loss position
'Sec 2(3) of the Act defines the term "employee" and specifies that it
"shall not include any individual having the status of an independent
contractor .11
'Under the new relationship , these drivers are frequently referred to as
vendors, distributors , or owner-operators
'The provisions state
Provided, That where there is in effect a collective -bargaining contract
covering employees in an industry affecting commerce , the duty to
bargain collectively shall also mean that no party to such contract shall
terminate or modify such contract , unless the party desiring such
termination or modification -
(1) serves a written notice upon the other party to the contract of
the proposed termination or modification sixty days prior to the
expiration date thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is proposed to make
such termination or modification,
(2) offers to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed
modifications,
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, and
simultaneously therewith notifies any State or Territorial agency
established to mediate and conciliate disputes within the State or
Territory where the dispute occurred , provided no agreement has been
reached by that time, and
(4) continues in full force and effect, without resorting to strike or
lockout, all the terms and conditions of the existing contract for a
period of sixty days after such notice is given or until the expiration
date of such contract , whichever occurs later
BORDEN , INC. 111
B. Respondent 's Decision To Convert Route Drivers
to Vendors
About the time of the negotiation of the
collective-bargaining agreement, June 13, 1968, the
Respondent, in an economy move, among other changes,
rearranged delivery schedules and routes to eliminate
overtime work by the wholesale route drivers, and as a
consequence the wholesale route drivers found their
weekly earnings reduced. Wholesale route driver John
Kiener approached general manager, Jack de Cordova, in
late June 1968 and lamented this loss of overtime pay
Kiener inquired if there was a chance to make overtime,
otherwise he was going to look for another job. Mr de
Cordova replied that the only answer was for the
Respondent to sell the routes This suggestion by de
Cordova to Kiener aroused some discussion among the
wholesale route drivers which was communicated to Mr.
Vernon Case, the Union's secretary and treasurer and
business manager. Mr. Case posted a notice on the plant
bulletin board on a date prior to July 8, 1968, notifying
the wholesale route drivers that there would be a meeting
at the union hall on July 10, 1968, to discuss the vendor
question.
Unable to make contact with union representative Case
on July 3, 1968, Mr. Jack de Cordova,' general manager
of the Respondent's Phoenix operations, on July 8,
phoned Mr Case and requested a meeting with him that
same morning to discuss the Respondent's plans to
convert wholesale and retail routes to a vendor system.'
The meeting between de Cordova and Case was held at
the Union's office in Phoenix on July 8, 1968.8 Wholesale
Route Manager Harry Sandler accompanied de Cordova.
Mr. de Cordova told Case of his conversation with Keener
which was now being discussed by other drivers Mr. de
Cordova stated his opinion that the drivers could do a
better job and with more volume under a vendor system,
particularly with respect to the outlying routes in the
Phoenix suburbs Case inquired if the Respondent had
plans on compelling the men to take vendor routes. Mr.
de Cordova replied there was no specific plan and
transfers would be individually handled as they arose.
When Case inquired what was going to happen to the men
who had been with the Respondent for many years, de
Cordova replied that they would get their routes if they
wanted them. Case asked if Borden was going to do it like
Carnation had done it. De Cordova told him the plans
were to start in the outlying routes which would be sold
first. Mr de Cordova told Mr. Case that the drivers
would not have pension or health and welfare as vendors.
Although Case made a request for the same, Mr de
Cordova did not provide the terms of the vendor
agreement.
'Mr de Cordova, who transferred to the Phoenix operation from
Abilene, Texas, in February 1968, was of the opinion that the vendor
system would result in improved earnings for both driver and the
Respondent He had had previous experience with the vendor system and
had installed it at other operations of the Respondent
'Mr Case was no stranger to the vendor system controversy His union
in December 1966 had filed charges with the Board against the Carnation
Company for similar conduct in setting up a vendor system, allegedly in
violation of Sec 8(aX5) of the Act The Trial Examiner' s decision in
Carnation Company had issued March 4, 1968, finding that Carnation's
conversion of the drivers to vendors violated Sec. 8 (a)(5) The Board's
decision at 172 NLRB No 215, issued September 6, 1968, also finds the
8(ax5) violation
'1 credit Mr de Cordova's testimony that this meeting was held July 8,
1968 Mr Case's testimony that the meeting was held on July 17 is not
credited Mr Case was unsure as to when the meeting occurred, at one
Case inquired about the men's life insurance and de
Cordova told him they could convert it Referring to de
Cordova's plans to convert to the vendor system, Case
told de Cordova, "It is your business. If you want to sell
your routes, there is nothing that I know of we can do
about it."' Case was unable to recall what he said in
opposition to the vendor plan, but he testified that he did
oppose it and that he did not agree to it Case did not
request another meeting. Neither did de Cordova. De
Cordova testified in substance that although Case did not
expressly agree to the Respondent's plan, he did not
express disagreement.
On July 10, 1968, Case presided at the previously
scheduled special meeting of the wholesale drivers At that
meeting he urged the men to stick together and not buy
routes. The men voted that they would not buy the routes
Case met with the retail drivers at the regular union
monthly meeting on July 17, 1968, urging them not to buy
the routes They voted not to.
Case heard no more from de Cordova after the July 8
meeting above described
On October 16, 1968, Case sent a letter to de Cordova
as follows-
Some time ago it came to my attention that your
Company was going to follow in the footsteps of the
Carnation Company by "selling" routes and equipment
to individual drivers and causing them to perform their
work under different wages, hours, and working
conditions than those called for in the labor agreement
now in effect.
The Union emphatically disapproves of such conduct
and considers it violative of the labor agreement and the
labor law
On the theory that you may have commenced these
unilateral changes solely because of economic
conditions, the Union is prepared to sit down and
negotiate modifications to the existing labor agreement
with the hope that litigation can be avoided, labor strife
can be minimized, and the economic problem be better
dealt with The Union proposed that the negotiations
should first deal with retail route deliveries and the
employees involved in that phase of the operations. You
should understand that the Union believes that the
employees induced by you to become would-be
"owner-operators" remain employees. It is the Union's
intention that they shall continue to be employees.
However, generally speaking, the Union is willing to
attempt to negotiate contract terms based somewhat on
the idea that greater responsibility shall be borne by the
individual drivers in the sale of the product and the
upkeep of the equipment.
Neither this letter, nor its offer to enter into
negotiations, nor the actual engaging in negotiations
shall be considered a waiver of, or acquiescence in, the
contract violations which the Company has already
engaged in.
The Union respectfully demands that negotiations
commence within ten (10) days from the date of this
letter
On October 23, 1968, de Cordova replied by letter as
follows-
point testifying July 15, at another point testifying that it was July 17,
whereas his signed statement to the Board agent stated that it took place
prior to July 17.
'The quote is from de Cordova's testimony which I credit
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have your letter of October 16, and frankly it greatly
surprises me. In view of the facts and circumstances of
which you are well aware and which have existed for
several months, your letter on the subject coming at this
late date is indeed a surprise
However, in order to give the contents of your letter the
fullest consideration I am referring it to our Houston
office I will communicate with you about this further
at a later date.
On November 6, 1968, Case replied by letter as follows.
In reply to your letter of October 23, 1968, we feel
that this Local Union should have been notified as to
your position on the matter of this owner-operator by
this time, and as such, we would like to hear from you
as soon as possible.
We also request that the Company send us a copy of
the owner-operator contract and any other phase of
their employment with regard to their commission,
rates, truck purchase or rental and whatever other
particulars might apply to his change of status as an
employee.
Thank you for your co-operation.
Hearing nothing further from the Respondent, Case
filed the unfair labor practice charges herein on December
17, 1968
Contrary to the contention set forth in the brief of
Respondent's counsel, that Case, at the July 8, 1968,
meeting with de Cordova, acquiesced in and agreed to the
Respondent's decision to convert its drivers to vendors, I
find that Case did not consent to such an arrangement. I
find that Case recognized the Respondent's decision as a
fait accompli, and his inquiries at the July 8 meeting
related to the impact it would have on the drivers. For
example, Case inquired what effect it would have on their
pensions, health and welfare, whether they would be
forced to buy a route, what would happen to the older
employees who refused to buy, etc. Case's conduct at the
July 10 and 17 meetings with the drivers in which he
exhorted them not to purchase the routes supports his
contention that he did not agree to the institution of the
vendor system '° Case's remark to de Cordova at the July
8 meeting, "It is your business. If you want to sell your
routes, there is nothing that I know of we can do about
it,"" does not manifest agreement; but rather in the
context of what was said conveyed his sense of frustration
in the face of the Respondent's decision to go "vendor."
I am satisfied, and I find, that de Cordova embarked
on the vendor system without the agreement and consent
of the Union It would be bordering on the naive to
suggest that Case, in one short meeting with de Cordova,
agreed to the decimation of the bargaining unit which his
union represented, by consenting to the substitution of
independent contractors for driver-employees. I find that
the Respondent made its decision to go vendor without
affording the Union adequate opportunity to bargain on
the decision and its impact on the employees. Compare
Fibreboard Paper Products v. N L.R B., 379 U.S. 203.
But this finding does not control my decision in this case.
For the reasons which will hereinafter appear, bearing on
the issue whether the vendors became "independent
contractors" or remained "employees," I have concluded
that the vendors remained "employees" within the
definition of Section 2(3) of the Act As a consequence,
"Respondent was familiar with the litigation in Carnation, in which the
Union had resisted the vendor system , and with the Trial Examiner's
decision finding Carnation's vendor system to have violated Sec 8(aX5)
"The quote is from de Cordova's testimony
the Respondent's conduct in altering their wages, hours,
and conditions of employment set forth in the current
collective-bargaining agreement, without complying with
the provisions of Section 8(d)(l), (2), (3), and (4) of the
Act, thereby constituted an unfair labor practice within
the meaning of Section 8(d) and 8(a)(5) of the Act.
Carnation Company, 172 NLRB No. 215.
C. The Establishment of the Vendor System
I have previously found that the Respondent ' s decision
to convert wholesale and retail drivers to vendors was
neither negotiated with nor agreed to by the Union. I also
find , and the Respondent does not contend otherwise, that
the details of the vendor plan were not negotiated with or
agreed to by the Union.
Pursuant to instructions from Mr. de Cordova as to the
method of setting up the vendor system, wholesale route
manager Harry Sandler and retail route manager Wade
Hodges solicited their respective wholesale and retail route
men to "purchase" routes 11 Some drivers took over routes
as vendors which they had previously serviced as drivers;
others took over vendor routes previously serviced by
other drivers The first vendor route was established on
July 17, 1968. Between July 17, 1968, and November 15,
1968, 10 wholesale employee routes were converted to
wholesale vendor routes and between September 1, 1968
and April 7, 1969, 12 retail vendor routes were established
to replace the employee routes Two of the retail vendor
routes were changed back to employee routes when the
vendors quit. Currently there are still 21 retail routes and
10 wholesale routes that have not been converted to the
vendor system
D. The Vendor System Generally
There is no written agreement between the Respondent
and the vendors. The arrangements which govern the
relationship between the Respondent and the vendors has
been unilaterally determined by the Respondent The
accounting procedures and the forms utilized to record the
transactions between the Respondent and the vendors, and
the recordkeeping forms utilized by the vendors are
prepared and furnished by the Respondent The degree of
control which the 'Respondent has or exercises over the
vendors must be ascertained by an examination of their
relationship in the light of their practices, understandings,
and arrangements.
The Supreme Court holds that the common-law agency
test should be applied in distinguishing an employee from
an independent contractor. N L R B v. United Insurance
Company, 390 U.S. 254, 256, decided October 1967 The
Board in A Paladin:, Inc., 168 NLRB No. 133, 67
LRRM 1023 has stated the test as follows.
The Board has frequently held that, when persons are
alleged to be independent contractors, the
determination requires the application of the "right of
control" test. Where the person for whom the services
are performed retains the right to control the manner
and means by which the result is to be accomplished,
the relationship is one of employment. On the other
hand, where control is reserved only as to the result
"There was in fact no "purchase " of the "routes" - only the purchase
by some vendors of trucks The Respondent did not assign or grant to the
vendor an irrevocable franchise to the territory to be serviced or to the
customer good will The phrase "purchase routes" is synonymous with
"take over a route" under the vendor system
BORDEN , INC. 113
sought, the relationship is that of an independent
contractor The resolution of this determination
depends on the facts of each case, and no one factor is
dispositive [See also F H Snow Canning Co , 156
NLRB 1075, 1078, Eureka Newspapers. 154 NLRB
1181, 1184 Carnation Company, 172 NLRB No. 2151
The problem posed by the issue of "independent
contractor" vs "employee" was expressed by the Supreme
Court in N.L R B v. United Insurance Co , 390 U S. 254,
258, as follows
There are innumerable situations which arise in the
common law where it is difficult to say whether a
particular individual is an employee or an independent
contractor, and these cases present such a situation. On
the one hand, these debit agents [vendors in the instant
case] perform their work primarily away from the
Company's offices and fix their own hours of work and
work days; and clearly they are not as obviously
employees as are production workers in a factory. On
the other hand, however, they do not have the
independence, nor are they allowed the initiative and
decision making authority, normally associated with an
independent contractor. In such a situation as this,
there is no short hand formula or magic phrase that
can be applied to find the answer, but all of the
incidents of the relationship must be assessed and
weighed with no one factor being decisive. What is
important is that the total factual context is assessed in
the light of the pertinent common-law agency
principles.
E. The Wholesale Vendor
The wholesale vendor delivers the Respondent's
products to Respondent's wholesale customers, namely,
food stores, restaurants, hotels, hospitals, and other
institutions on a route with fixed boundaries just as do
wholesale route employee-drivers. As a rule he does little
or no solicitation of new business. He will occasionally
solicit a small account or furnish leads for the
Respondent's street salesmen
Respondent employs street salesmen who solicit
business from wholesale accounts on all routes. The street
salesmen, with the approval of the wholesale manager,
Mr. Sandler and Mr. de Cordova, negotiate the price to
be paid by the wholesale customer and the type of service
whether "full service" or "limited service."" Frequently,
where the customer is a large institution, such as a school
or military installation, a price is bid in competition with
other dairies. In some cases, the Respondent offers rebates
or discounts to procure a new customer or hold an old
customer The wholesale vendor does not participate in
these negotiations and is not consulted except occasionally
in a situation where the Company's bid is so low that its
price to the wholesale customer is, in fact, less than the
dock price that a vendor pays the Respondent for the
product, in' which case, the Respondent will guarantee to
the vendor that he will receive a gross profit of 25 cents
per case for the product he delivers to such a customer.
Customarily, and in almost all cases, a creditor - debtor
relationship is created and exists only between the
Respondent and the wholesale customer. In most cases,
Borden sells to the wholesale customer on credit and bills
the wholesale customer who in turn makes payment
directly to the Respondent The wholesale vendors, like
the wholesale route drivers, work under the direction of
Mr. Sandler, the wholesale manager. Like the wholesale
route driver, the wholesale vendors engage in the same
daily routine of reporting to the plant at the end of each
workday to return the empty bottles, etc., and prepare a
load sheet for the products which they intend to take out
the next day. The products ordered on the load sheet are
set aside for them. The vendors load their own trucks and
plug into an electrical outlet on Borden's premises so that
the products may remain refrigerated in their loaded
trucks overnight. The next morning just as the
employee-drivers, the vendors report early in the morning
to resume their daily deliveries to the various wholesale
customers Just as the wholesale route drivers account
each day for their deliveries, the wholesale vendors turn in
to the Company each day either cash, check, or evidence
of delivery to credit customers in lieu of cash, for the
product loaded into their truck the previous day Prior to
January 1, 1969, the wholesale vendors were required to
make out a bank deposit in the name of Borden each day
and deposit the moneys in the company safe. Since
January 1, 1969, the wholesale vendors still must make
their daily payment for products taken the previous day
but now instead of depositing the money in Borden's bank
account, it is deposited in the vendor's own special bank
account.
Respondent's counsel concedes in his brief that the
relationship between Borden and the wholesale vendors is
really not a relationship of purchaser and seller. He
concedes that the bookkeeping system recording sales
from Borden to the vendors is merely a fictional
bookkeeping device. It is clear from the record that the
wholesale customers are regarded by Borden as its
customers and are directly billed by Borden. The dock
price charged to the vendor as well as the price which the
wholesale customer pays for the product is determined by
Borden and not by the vendor. Borden alone, and not the
vendor, determines whether rebates or discounts shall be
given to the wholesale customers and the amount thereof.
Borden determines whether the service shall be full service
or limited service While in the first instance all products
are billed to the vendor at the wholesale dock price, the
vendor's profit or share in the transaction is limited by
Borden's sale price to the customer. The lower the sales
price to the customer, the less is the vendor's gross profit.
Where rebates or discounts are given, this is negotiated by
and determined by Borden. Borden unilaterally
determined that it will absorb the first 10-percent rebate
one-half of the rebate from 10 to 15 percent and none
above that amount Although he has no say in the matter,
the vendor is required by Borden to absorb one-half of the
rebate from 10 to 15 percent and the entire amount of any
amount in excess of 15 percent. Because the vendor
initially is billed at the full dock price for all of the
products picked up at the dock, Borden indulges â–ºn a
complex system of charge backs and credits to the vendor
to reflect the true amount the vendor will receive In the
final analysis, the vendor delivers the product for whatever
compensation Borden arranges to pay him for the service
The only option of the vendor, and one which he seldom
exercises, except in situations where the account is trifling
and imposes a hardship on him because of the customer's
location, is to decline the opportunity to serve the
customer at the 25 cents per case rate, in which case the
Respondent will offer it to another vendor or make the
delivery through a company route man
""Full service" means stocking and arranging the case and displaying
the product "Limited service " means merely depositing the products on
the customer 's premises The customer pays more for "full service "
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Customer complaints, messages from wholesale
customers, or orders for additional deliveries are turned
over to the vendor when the calls are received by the
Respondent's office, but, if the vendor is not available, the
Respondent will make the delivery with its own employee.
The Respondent will furnish a relief man for the vendor
because of illness or other reasons and charge the vendor
for the relief man the amount Borden is required to pay
the relief man under the union contract.
In every case, Borden leases or sells a truck to the
vendor, and it is usually the one he had been accustomed
to use as a route driver. The vendors are urged to
purchase their trucks. Ten wholesale vendors and five
retail vendors purchased their truck after first leasing a
truck." The purchase price was unilaterally fixed by
Borden and it arranged the financing for the trucks
through the First City National Bank of Houston. The
vendor received title to the truck without a down
payment, and he and his wife were required to sign a note
and Security Agreement to the bank equal to the purchase
price plus an approximately 10 percent finance charge in
lieu of interest. The notes were payable in equal monthly
payments varying from 36 to 60 months and for amounts
of $1,850 to $6,000, depending on the purchase price of
the truck. With the beginning of the vendor operation, the
vendor was required by Borden to insure the truck,
whether leased or purchased, in the following amounts:
$100,000 to $300,000 public liability, $50,000 property
damage, and $100 deductible collision. Wholesale vendors
who leased or purchased trucks had to pay for their own
oil, gasoline, and tires, which Borden furnished at prices
slightly above its cost. Thus, gas is usually purchased at
25 cents per gallon. Truck repairs are made by Borden
mechanics at a service charge of $3.50 per hour plus parts
at 10 percent above cost, oil sold at approximately 25
cents per quart, and a charge of $25 per month is made
for parking the truck overnight on the Respondent's
premises. Like the wholesale route driver, the wholesale
vendor is confined to a limited route and handles only
Borden's products. He does not handle products of
competitors or engage in any other type of business. His
entire workday is devoted to Borden. He acquires no
proprietary interest in the wholesale vendor route. To
arrive at his net profit, the wholesale vendor deducts such
expenses as truck rental or depreciation, truck repairs, gas
and oil, license fees, taxes, etc.
Some vendors who purchased trucks were required by
Borden to sign a power of attorney in November and
December 1968 authorizing and impowering Borden to
sell the truck without limitation."
Without consulting the wholesale vendors, Borden
installs advertisements of Borden specials and promotions
on the vendor's truck just as it does the wholesale
employee truck.
F. The Retail Vendors
Wade Hodges, the retail sales manager, after
consultation with General Manager de Cordova, drafted a
checklist which he used in explaining to retail route
drivers the agreement and relationship between Borden
and the retail vendor. Copies of this checklist were
"The vendor is free to purchase a truck elsewhere , but in every case the
purchase or lease was from the Respondent The specialized type of milk
truck required limits opportunities for purchase or sale
"Mr. de Cordova testified that he later abandoned this requirement that
truck purchasers sign the power of attorney
distributed to some of the drivers. The contents of the
checklist and my comments here are as follows:
(1) Company will sell distributor the accounts-
receivable, truck, and ice cream cabinet. These are to be
secured by proper legal instruments. Regular monthly
payments will be made by withholding from monthly
statement Distributor may pay cash for these items if
he wishes.
Comments : Borden , in fact , did not assign the accounts
receivable to the retail vendors, but did require the
vendors to collect the outstanding accounts receivable'
which varied from approximately $2,500-$6,000, and to
remit the same to Borden . The retail vendors are required
to maintain route books A and B, even as they did as
employees , and to deposit with Borden Route Book A on
days that Route B was being serviced by the vendor, and
to deposit with Borden Route Book B when Route A was
being serviced . Borden runs a tape monthly on the
vendor's route books to determine the status of the
outstanding accounts receivable and whether the vendor is
properly accounting for collection of accounts receivable
to Borden . Five retail vendors after leasing a truck for a
time, purchased Borden used trucks in November and
December 1968 and in February 1969 at prices averaging
approximately $5,000 per truck with no down payment,
the purchase price payable in monthly installments to the
First City National Bank of Houston over a period of 4 to
5 years; others leased Borden trucks at a monthly rate
without purchasing them Retail vendors were required to
execute in favor of Borden a security agreement on all
inventory equipment and accounts receivable Under the
terms of this security agreement , the vendor created 'a
security interest in favor of the Respondent , in all fresh
dairy products and ice cream sold to him, all of the
vendors inventory and equipment and proceeds therefrom,
all accounts receivable , notes, drafts or other obligations
or receivables , now existing or thereafter created,
including the proceeds therefrom , ledger cards, invoices,
delivery receipts , books of accounts, statements,
correspondence and other records of the vendor relating to
said accounts - in order to secure the Respondent the
full performance of payment of all obligations and
indebtedness to the Respondent , present and future,
including rents, taxes, levies, assessments , charges,
insurance , repairs, maintenance, or protection 'of the
collateral
By the terms of the Security Agreement , the retail
vendor agrees that he will not sell, exchange , lease,
mortgage , encumber or pledge, conceal , remove, or
otherwise dispose of the collateral , without the prior
written consent of the Respondent , except such sates as
are made to buyers in the ordinary course of business (as
defined in the'Uniform Commercial Code).
The retail vendor is required to keep the collateral at
all times in good repair and not to permit anything to be
done that may impair the value of any of the collateral;
and if the collateral is impaired , with or without fault of
the vendor , shall constitute a default at the option of the
Respondent.
The vendor is required to keep the collateral insured
against risks , with loss of any payable to the Respondent
as its interest may appear.
The vendor is required to keep accurate and complete
records of the collateral and at Respondent's request,
furnish once every month a schedule of the vendor's
collateral.
BORDEN , INC. 115
The Respondent has the right at any time, where it
deems the debt insecure, to declare the unpaid balance of
the entire indebtedness secured due and payable in full, to
exercise, among other things, the right to enter upon the
premises of the vendor or holder of the collateral and take
possession thereof and dispose of it as provided in the
Uniform Commercial Code
The Respondent reserves the right to notify the account
debtors on the accounts receivable to make payment
directly to the Respondent.
The vendor is required to physically segregate the
collateral, maintain a separate inventory, thereof,
maintain records of accounts receivable, maintain a
separate bank account of the proceeds received in
payment for the collateral.
The Respondent has the right to transfer its security
interest in the collateral, and the agreement is binding on
the vendor's heirs, executors, administrators, successors,
and assigns.
I find that the aforesaid security agreement which I
have described in outline, affords the Respondent the right
to supervise and enforce the method and means of
vendor's business operations, his recordkeeping, the
maintenance and repair of his equipment, his insurance
coverage, his financial undertakings, his bank account,
under penalty that the Respondent may at its option seize
all of the described collateral and take such other
prescribed action which perforce will put the vendor out of
business.
The Respondent concedes in its brief that it can
terminate a vendor "for cause." The phrase "for cause" is
so vague as to permit the Respondent an undefined and
wide discretion to terminate a vendor's services for any
conduct which the Respondent believes is not in its
interest.1I
An example of a measure of control that the
Respondent exercised over the vendor's means and
manner of work performance which throws light on
Respondent's right to terminate "for cause" is found in a
letter dated November 22, 1968, to all Borden Sales
Managers, Salesmen and Vendors. In that letter Mr. de
Cordova recited that he had several, complaints from
customers that they had purchased Borden Dairy products
which were stale and out of date. De Cordova urged the
Borden personnel to check Code dates and keep the
merchandise cold. He further warned everyone that if
management found anyone, employees or distributors, not
watching Code dates and taking care of the products, "it
can be the basis for discontinuing our partnership.. .
The letter then went on to urge the people to "police code
dates and refrigeration, which includes. regular defrost,
keeping the doors of your truck closed, and get the top
Borden quality to the consumer." It is clear, and I find,
that the Respondent does exercise a large measure of
control over the manner and the means by which the
vendors, retail and wholesale, perform their tasks.
(2) Buy products at an established dock price and re-sell
at suggested or competitive home service price. Your
spread will be approximately 25% of the suggested retail
price.
An additional 1% of sales will be accrued for
improvement in collections. 1/2% of this accrued for
93% or better current accounts receivable, and 1/2%
"Thus, Clarence Paris, one of the retail vendors , credibly testified that
he was told by Mr de Cordova that the Respondent would terminate a
vendor who was short in his funds or who became an alcoholic or if the
Respondent received too many customer complaints.
for not more than 100% of net dollar sales in
outstanding. This accrual will be paid annually in
early December to distributors in good standing -
must still be in business on December 1st to be
eligible for this accrual.
Comments: This is generally adhered to. The retail
vendor, like the retail route driver, is confined to a
geographically limited route in which to solicit new
business and make deliveries. Only Borden's products are
handled by the vendors, with the exception of eggs. Some
vendors handled other eggs. The retail vendor devotes the
full workday to Borden and engages in no. other work.
The retail route man, pursuant to the union contract, is
paid an approximate 18 percent commission on sales;, the
retail vendor an approximate 25 percent spread of the
difference between the dock price and the suggested retail
price to the home consumer. The dock price and the
suggested retail price are unilaterally fixed by Borden. The
retail vendors customarily sell at the suggested list price,
as this is usually the uniform competitive home service
price of Borden's competitors. The retail vendor, unlike
the retail route man, has the discretion to deviate from the
suggested retail price. At least one retail driver -
Howard McCaslin - charged about I cent per unit above
the suggested list price for milk deliveries to 75 percent of
his customers, as his competitors were doing likewise.
With respect to a collection bonus, retail vendor McCaslin
credibly testified that if the retail vendor collects 90
percent of the outstanding book accounts by the end of
the month, he gets a small incentive bonus which Borden
places in a reserve.
(3) As long as you owe the company for receivables and
truck, you will submit your route ledger accounts a
minimum of once monthly or any time requested by
company to do so for a complete audit in company
prescribed manner. You will then draw the difference in
your buying and selling price, less the charges made to
your account for truck payment, insurance, etc , as your
monthly settlement.
Comments: Before January 1, 1969, the retail drivers
were required daily to make a deposit slip to Borden's
bank account of all daily collections and deposit it in
Borden's safe. Borden ran a tape monthly on the route
books, and made payment to the retail vendor of his net
earnings that month after deduction for expenses, such as
gas, oil, repairs, truck lease, etc After January 1, 1969,
each retail vendor was required to set up his own bank
account. Thereafter, home customers were billed in the
name of the vendor instead of Borden, but payments to
the vendor, when mailed, were sent to Borden's P. O. Box
and then turned over by Borden to the vendor. The vendor
after January 1, 1969, made deposits in his own business
bank account, but Borden has continued its practice of
running a tape monthly on the vendor's route book.
(4) In lieu of your paying cash for your daily purchases,
you may turn in to the company daily all cash receipts.
The company will accept your accounts receivable as
payment for your account but reserves the right to
reject any particular account it feels is not collectible or
over sold.
Comments: Generally, Borden would not accept those
accounts receivable as security for the retail vendor's
indebtedness which were over 30 days delinquent.
(5) You will need to: "
A. -Secure State and City sales tax license and • pay
tax not later than 15th of month following sale. Cost
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of each of these licenses is $1.00 and they are good
until you move to a different address.
Comment : Self-employed persons would be required by
law to follow this practice.
B. Have your tax man set up a self-employed tax return
and social security form.
Comments - Borden was suggesting the legal obligation
of a self-employed person with respect to payment of
Social Security tax, sales tax, etc. Borden no longer is
making these payments as they do in the case of
employees.
(6) You will have the option of parking at night on
company property for $15.00 a month , buy gas, tires,
truck repairs , etc., through company at nominal prices,
e.g., gasoline - 25 cents per gallon , truck repairs $3 50
per hour plus parts.
Comments - Vendors generally take advantage of these
reduced price options. Some, often making the necessary
electric installation at their homes , will take the vehicle
home overnight after loading up and will keep the
products refrigerated overnight by plugging in at home.
(7) You can buy printed route sheets and addressograph
service for $5 00 monthly through company . Receipt
pads will be charged at company cost . This also
includes figuring of your daily settlement sheet at retail
prices.
Comments: Vendors are supplied these services for $5 a
month.
(7) [Continued] Write a letter to Company stating that
should you wish to leave route, you will give 90 days
notice , and no going back on territory for 90 days
Company has first option on accounts and equipment at
fair appraised value. Will establish a daily route average
when you take route . Pay distributor for route split at
fair value over this base or for increase over this base
should you sell the route. Company will pay $3 00 per
point average for business put on up to 3,600 points per
week - $5.00 for average over 3,600 points per week.
Comments: This letter was required of the newly
established vendor . Wade Hodges prepared a
mimeographed letter as follows for signature by retail
vendors in taking over:
To: Borden Inc.
I wish to buy Borden retail route no. .. and truck
no. . and operate it as independent distributor.
Should I , at any time, decide to leave or sell the route,
I will give: the company 90 days notice I will give
Borden Inc. first option to buy accounts receivable and
equipment at fair appraised value and I will not go
back on the territory to sell , solicit , or deliver dairy
products for myself or another person for a period of
90 days from the date I stop distributing Borden
products.
I will at all times maintain truck insurance of $100
- 300,000 P.L., $50 ,000 P.D., and $100 deductible
collision.
This letter was required of all vendors , wholesale and
retail at first Later, the vendors were told by Mr. de
Cordova that Borden was no longer giving effect to them,
that any vendor could quit without giving 90-day notice.
The letters were not returned to the vendors who had
written or signed them , and Mr. de Cordova testified that
he threw them into the wastebasket.
The record shows that two retail vendors who quit left
without giving the 90-day notice . They turned in their
route books and their accounts were audited , and they
turned back their trucks and route books without
receiving additional compensation One retail vendor who
quit, Mason , was found to be indebted to Borden in the
amount of $ 1,491, this amount representing the difference
between the balance he owed for products he had
purchased from Borden and the current accounts
receivable which Borden is willing to accept in lieu of
cash . Mason gave Borden a promissory note for the
$1,491. Another retail vendor who quit was found to be
$1,750 short
Concerning Borden 's proposal to pay a retail vendor for
a route split over the route ' s base average for additional
points accumulated by the vendor , this proposal was
essentially a continuation of the existing practice of
compensating employee route drivers where their routes
were split.
(8) Truck insured for $100/300,000 P.L. and $50,000
P.D , $100 deductible collision with certificate of proof
of same to company Insurance drawn up to provide
same coverage of any rented truck being used in place
of distributor 's insured truck
Comment This requirement was strictly enforced. All
vendors, retail and wholesale , were required to insure their
vehicles, whether purchased or leased from Borden, for
the stipulated coverage , and evidence of insurance was
furnished Borden by the insurance companies.
(9) Route return credit will be allowed up to .2% of
sales only. Distributor stands all dumps over this.
Comment The retail vendors were allowed monthly
credit equal to .2 percent of sales for spoiled product
returns, wholesale vendors were allowed monthly credit
equal to .5 percent of sales for returned products.
(10) Containers will be charged and credited at 2 cents
each for quart and half gallon glass bottles and 30 cents
each for gallon jugs.
(11) Relief driver , if available , $25.00 per day Truck
rental $5.00 per day plus 5 cents per mile over 100
miles per day.
Comment : The retail vendor was required to pay
Borden $25 a day for Borden's relief driver, the wholesale
vendor would be charged by Borden the amount due the
relief driver under the union contract . The relief drivers
were paid by Borden who in turn would obtain
reimbursement from the vendor . The truck rental refers to
temporary truck rental while the vendor ' s truck was tied
up in repairs, etc . All vendors , wholesale and retail, in the
first instance leased and some later purchased a truck
from Borden . The truck lease was for a monthly figure
which Borden in some instances unilaterally increased
from time to time
(12) Distributor will not permit a helper on company
property.
Comment - The evidence is not clear whether the rule is
being enforced . Wade Hodges testified credibly and
without contradiction that from time to time some retail
vendors have helpers on their truck , usually a son or
brother on heavy days or on Saturdays. Borden does not
pay for the services of the helpers.
(13) Distributor will identify truck as "Owned and
operated by (his name ), Distributor" on both sides of
truck.
Comment- All vendor trucks , both retail and wholesale,
are painted in the typical Borden color and bear the well
known picture of "Elsie the Cow and the name of Borden
BORDEN , INC. 117
on the truck Additionally, on the truck appears the name
of the vendor as Independent Distributor.
(14) 7 1/2% interest on that amount owed over 30 days
sales.
(15) Truck may be financed through company's bank.
Company will withhold monthly payment from monthly
settlement and make payment.
Comment: It is undisputed that all vendors, both retail
and wholesale, who purchased trucks, and they were
encouraged by Borden to do so, had the full purchase
price financed by the First National Bank of Houston,
and all details were handled by Borden. In effectuating the
financing, there was no contact between the vendor and
the bank. All negotiations were conducted by Borden.
(16) Monthly accrual (approximately 1.5% of sales may
be set up for contingencies such as tires and major
truck repairs as well as cash reserve. This would be
agreed upon between company and distributor and
agreed amount withheld from monthly settlement.
Comment- Borden prepared a document for the
signature of Retail Vendors authorizing Borden to
withhold 2 percent of the retail sales value of the vendor's
monthly purchases to be set up as an accrued cash reserve
in the vendor's name; this reserve to be used to pay such
expenses as insurance and registration and any unusual
truck expenses. The document also authorized Borden to
transfer the vendor's bond deposit credit to this reserve
fund. Mr. de Cordova testified that this document was
prepared for the signature by vendors but was not
required.
(17) Truck insurance can be paid by company if need
be, and charged in to a special account and deducted
from monthly settlement each month at the rate of 1/12
of the total amount.
(18) Truck registration can be handled in the same
manner as insurance.
(19) Copies of accruals will be furnished the distributor
monthly.
Additional Characteristics of the Retail
Vendor-Borden Relationship
In similar manner as the retail route supervisor rides
with the retail route driver , assists him in his problems
and sometimes relieves him, the supervisors counterpart
under the vendor system is the "coordinator" who
performs much the same function with the vendor as the
supervisor vis-a-vis the retail employee route drives The
coordinator is an acknowledged full time Borden
employee who spends most of his time with the 10 retail
vendors, riding the route with them at times, breaking in
new vendors, attending to their problems, and relieving
them when they are ill or otherwise unable to service the
route. The coordinator does not ride the route with each
vendor as often as the supervisor rides with the retail
route drivers Bud Allender, the coordinator, was formerly
designated a supervisor before the vendor system was
inaugurated.
The retail vendors, together with the retail route
drivers, attend periodic weekly or biweekly sales meetings
presided over by Wade Hodges, the retail sales manager,
where they are instructed as to the "do's and don'ts,""
such as to refrain from delivering stale products. At these
periodic sales meetings both employee route drivers and
vendors are briefed on specials which Borden is promoting
that week Signs advertising these specials are placed on
the truck by Borden personnel, and the vendor, like the
route driver, is expected to promote the specials which
frequently offer a premium to the housewife or a specially
reduced price for certain items whose sale Borden is
promoting that week."
Retail and wholesale vendors continue to wear the
Borden uniform, and Borden furnishes the name patch
and Borden patch to be worn on the shoulder of the shirt.
Borden launders the shirts at a charge to the vendor of 25
cents per shirt.
The Borden retail sales coordinator, like the retail route
supervisor, rides with the new vendor to acquaint him with
a route.
The retail vendor is required to turn in his route books
each month to Borden so that it may run a tape to
determine the status of the accounts receivable and his
indebtedness to Borden. Before January 1, 1969, the retail
vendors, like the rental route men, received a check in the
nature of a draw on the 21st of the month and the balance
on the 6th, less expenses charged by Borden to the retail
vendor, such as the monthly amount of the truck lease,
for gas, oil, repairs, $15 for parking, $5 for book and
addressograph, etc
A retail vendor who takes over a retail route is required
to collect the outstanding accounts receivable, usually
averaging $4,000 and remit the moneys to Borden. These
accounts receivable are not purchased by the retail vendor
and are not assigned to him, but the retail vendor is
required to sign a security agreement in favor of Borden I
have previously hereinabove outlined the contents of this
security agreement.
The retail vendor's workday routine is comparable to
that of the retail route driver. He unloads his empties and
returns at Borden's plant or depot at the end of the
workday, and that same evening loads up for the
following day, and then resumes on his route the following
day. Some retail vendors plug in at their own home
overnight to refrigerate their products rather than at the
Borden premises.
The vendor does not engage in any other business and
he devotes his full time to selling and delivering only
Borden 's products IS He solicits and delivers only on his
own route, but instead of being paid on a commission
basis as is a route driver, the vendor's basis of
compensation is the difference between the retail price to
the home consumer and the dock price, less his business
expenses, such as truck rental, repairs, parking, office
supplies, gasoline, oil, etc. Like an employee route driver,
it is possible for the retail vendor to increase his earning
by increasing his sales.
Customer complaints received by Borden are recorded
and referred to the retail vendor
The retail vendors collect the retail sales tax from the
home consumers and remit them to the State of Arizona.
When a retail vendor's truck is in for repairs, Borden
rents the vendor a substitute truck for $7.50 per day.
Borden 's competitors in home delivery are Shamrock,
Foremost, Kraft, and Carnation, and they all usually
charge the same price to the housewife.
Borden employs solicitors on company retail routes but
not on vendor routes.
"The quote is from the credible testimony of retail vendor Howard
McCaslin
"Clarence Parts , a retail vendor , credibly testified " I wouldn 't dare turn
down a special I don ' t want to get fired "
"Retail vendors may handle non-Borden eggs.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. Conclusionary Findings That Vendors Are
"employees" and not "independent contractors"
A review of the arrangements and practices bearing on
the relationship between the vendors and the Respondent
convinces me, and I find, that the Respondent retains the
right to control, and indeed exercises, control over the
manner and means of the vendor's operations For that
reason, I find that the vendors, both retail and wholesale,
remained employees covered by the collective-bargaining
agreement, and did not become independent contractors
Although the vendors in some respects appear to
possess some of the attributes of self-employed,
independent businessmen, such as owning or leasing a
truck, paying the expenses of the truck operation, carrying
casualty insurance on the truck, paying sales tax to the
State and making social security returns to the
government as self-employed persons, and the retail
vendors purchase and sell products; it is clear nevertheless
that the vendors are the agents and employees of the
Respondent and are not engaged in independent
enterprises. Initially, it is observed that the vendors are
required by the Respondent to own or lease a truck, to
carry casualty insurance, and make the self-employed
social security returns. The vendor's ownership of the
truck, subject to the 10 percent lien of the bank,20
realistically viewed, is illusory and represents nothing
more than a unique plan by the Respondent to shift some
of its operating costs to the vendor, who now more than
ever is economically dependent upon and subservient to
the Respondent's wishes and desires. The vendor does not
carry the casualty insurance on his truck, whether owned
or leased, because he has independently made such
decision but because Borden has compelled him to The
vendor system is entirely the creature of the Respondent.
It is purposefully not defined in writing; it is amorphous
and changes in form, and content as the Respondent from
time to time unilaterally determines Negotiation, and the
give and take between contracting individuals, is entirely
lacking Nothing of value is conveyed or assigned to the
vendor except in some cases the truck, which because of
the 110 percent lien thereon, I have found is an illusory
asset. The routes and customer good will remain as before
in the actual or potential custody and control of the
Respondent. The wholesale customer is Borden's customer
and there is a creditor-debtor relationship between them.
The retail customer is-tied inevitably to Borden by virtue
of the fact that under its security agreement with the retail
vendor, Borden may at its option seize the route books,
inventory and equipment, accounts receivable records,
bank deposit and other things of value to protect its
interest; and it may require the (ustomers to make
payment to it rather than the vendor The vendors are
required to be uniformed and to wear Borden patches.
The trucks carry the typical Borden trademarks and
name The vendor's name appears on the truck not
because of his decision but because Borden compels it.
The retail vendors are required to attend sales meetings,
and they, as well as the wholesale vendors, are required to
carry Borden's advertising specials on their truck, and
they carry out the specials and promotions. The retail
vendors are required to collect Borden's outstanding
accounts receivable which are the property of Borden and
to account for such collections All vendors are required
to deliver only products which are fresh and not out of
date, and they have been cautioned that if they do not,
SOThe full purchase price plus â–º 0 percent interest charges.
they will be terminated. They are cautioned by Borden to
properly defrost and keep their products properly
refrigerated and to keep the truck door shut. The vendor
relationship is terminable without notice by either party.
The vendors are subject to direction, training, and
supervision by managerial employees The vendors are
required to prepar„ and keep records, accounting practices
and bank practices prescribed by the Respondent, and the
retail vendors are required each week to yield possession
of their route books to the Respondent. The vendors
devote their entire workday only to Borden's service,
engaging in no other c,nterprise, carry only Borden's
products, and in a prescribed territorial route fixed by
Borden Their earnings are subject to the control of
Borden which unilaterally fixes and changes the dock price
to the vendor and the selling price to the wholesale
customer and likewise fixes the dock price and suggested
selling price for the retail vendors. The wholesale vendor
is in truth not a purchaser or seller of goods. The
discretion of the retail vendors to fix their own retail
prices is largely meaningless because of the limited route
to which they are confined and by the home delivery
prices of competing drivers. The inference is clear that the
unequal economic power of Borden over its vendors
compels them to perform their duties in a manner which
is acceptable to Borden, or in the alternative to suffer
termination By the very nature of his duties which the job
requires, the vendor has no real discretion in servicing his
route except that limited discretion which any employee
also exercises in carrying out his day to day routine.
There can be no doubt that a vendor who would choose to
fix his own hours of work so as not to properly serve the
customers, or who would absent himself from his route
without substitution by a relief man, or who would carry
the products of a competitor, or who through inattention
to work permits his route to deteriorate would risk
termination; and Borden has this unquestionable right to
control the manner and means of performance through its
power of termination The vendor has no proprietary
interest in his route which he can sell, with this exception,
that Borden grants to retail vendors the same privilege it
gave to its retail employees to be compensated for
accumulated points above a base average at a scheduled
rate where a route is split. Borden has not assigned or
conveyed to the vendor any right to assign his route to a
stranger, and the two retail vendors who have quit left
Borden with nothing, just as when they came in Indeed,
they found themselves substantially in debt
The paternal control exercised by Borden in furnishing
facilities to the vendors at reduced prices, such as parking
and refrigeration facilities, truck repairs, gasoline, oil, and
bookkeeping services, is one of the hallmarks of. the
master-servant relationship, and manifests the vendor's
dependence upon Borden's favor for his survival.
In view of the fact that the vendors have only minimal
control of the manner and means by which their work is
to be accomplished and meager opportunity to make
decision which would affect their profit and loss and
Borden 's control is continuous and pervasive. I find upon
the entire record" that they are employees within the
meaning of the Act. See for example N L.R B. v. United
Insurance Co, 390 U.S. 254; Carnation Company, 172
NLRB No. 215; Eureka Newspapers, Inc, 154 NLRB
1181, 1184-85; Pepsi Cola Bottling Company, 156 NLRB
"The record is corrected in accordance with the General Counsel's
motion The corrections are noted in Appendix B attached hereto
[Omitted from publication I
BORDEN , INC. 119
80; Mister Softee of Indiana Inc., 162 NLRB 354; News
Syndicate Co., Inc, 164 NLRB No 69; The Seven-Up
Bottling Company of Detroit, 120 NLRB 1032, Smith's
Van & Transport Company, Inc., 126 NLRB 1059,
Minnesota Milk Co. v. N.L R B, 314 F.2d 761 (C.A. 8);
N L R B. v. Phoenix Mutual Life Insurance Co, 167 F.2d
983, 986 (C.A. 7); N L.R B. v. Nu-Car Carriers, Inc, 189
F.2d 756 (C.A 3); Deaton Truck Lines, Inc v. N L R.B,
337 F.2d 697, 698-699 (CA. 5); N.L.R B v. Lindsay
Newspapers, Inc, 315 F.2d 709, 713 (C.A. 5); N L R B
v. Keystone Floors, Inc, 306 F.2d 560 (C.A. 3) Compare
N.L.R.B v. Servette, 313 F.2d 67 (C A 9).
Accordingly, I have concluded that by entering into the
aforesaid vendor arrangements with its retail and
wholesale driver employees, the Respondent violated
Section 8(a)(1) and (5) of the Act by unilaterally changing
the wages, hours, and working conditions of wholesale and
retail employee drivers" by bargaining with individual
employees in derogation of the Union's representative
status,T3 and by modifying the existing
collective-bargaining agreement with the Union, without
complying with the requirements of Section 8(d) of the
Act.2°
H. The Coercion of Retail Route Drivers To Take
Vendor Routes, and the Quitting of Robby Burleson,
Jim Owen, and Carl Paige
The General Counsel contends in essence that by
threats to sell their routes, the Respondent coerced route
drivers into taking over vendor routes and forced route
drivers Robby Burleson , Jim Owen, and Carl Paige to
quit their employment rather than accept the alternative
of taking over a vendor route.
These three employees, as retail route drivers, were in
the unit of employees covered by the union contract.
It is undisputed that with the decision of the
Respondent to go vendor, Retail Sales Manager Wade
Hodges embarked on a selling campaign to induce retail
drivers to take over a retail route, either their own, or
another, as a vendor. Mr. Hodges approached route
drivers individually, soliciting each of them to buy a route,
and endeavoring to point out to them his view of the
economic advantages of the vendor relationship and some
of the details of the vendor arrangement. In the course of
his conversation with some of the drivers, he told them it
was the Respondent's intention to sell all the routes. Thus,
when Hodges sought to sell a route to retail route driver
Clarence Paris in July 1968, he told Paris that Borden was
selling the routes, and asked Paris if he wanted to buy.
Paris told Hodges he didn't want to buy a route. When
Paris asked what would happen if he didn't buy, Hodges
replied he was going to sell them any way At a
subsequent date in August 1968, Hodges called at Paris'
home in an effort to convince him and his wife to buy.
Fearing that he could not find another job because he was
49 years of age, Paris signed up for a vendor's route
When Hodges told Paris he was required to sign a
statement that he wanted to buy the route, Paris replied
"that would be the biggest lie I ever said, because after all
these years that we had fought for five days a week, and a
SIN L R B v. Katz, 369 U S. 736, 743; N L R B v Huttig Sash & Door
Co, 377 F 2d 964, 967 (C A 8).
IIN L R B v. Tom Johnson, Inc, 378 F 2d 342, 343 (C A 9); General
Teamsters Local Union No 782 (Blue Cab & Village Cab) v N L R B,
373 F 2d 661 (C A D C.). See also J I Case v N L R B, 321 U S 332
"Carnation Company, 172 NLRB No 215, N L R B v Huttig Sash &
Door Co , supra
"The quote is from Paris ' testimony which I credit
vacation with pay, and a retirement plan and a
hospitalization, and so on."25 Hodges replied that was the
way it would have to be and Paris signed. Paris at the
time of the hearing still remained a retail vendor.
Retail route driver Harold McCaslin experienced
similar treatment from Hodges in the course of Hodges'
campaign to convert retail route drivers to retail vendors.
In August 1968, Hodges called McCaslin into his office
and told him Borden was going to sell the routes. Hodges
told McCaslin he wanted him to buy a route, specifically
Route 27. McCaslin told Hodges he was not interested.
Hodges replied that eventually everybody was going to
have to buy About 2 weeks later, Hodges called at
McCaslin's home where he again urged him to buy Route
27 and offered figures and argument to support his sales
pitch that the vendor route would be profitable According
to McCaslin's credible testimony, he said to Hodges
"Well, Wade, if I don't buy a route, lay the cards on the
table, tell me how long I can expect employment!'"
Hodges replied, "I can't guarantee you anything after
November 1 " About 1 week later, McCaslin took over
Route 27 as a vendor.
Walter Scott, a Borden employee for almost 25 years,
received similar treatment from Hodges who solicited
Scott to take a retail vendor's route in August 1968, and
on a number of later occasions, inquired if Scott had
given it further thought. In December 1968, Hodges told
Scott that he might not be able to let Scott hang on as an
employee for the full 25 years, which was important from
a standpoint of pension rights, as Borden would like all
the routes to be sold by January 1, 1969.26 Scott did not
purchase a vendor route, and he still remains employed by
Borden.
John T West, still employed as a relief wholesale driver
by Borden, was employed as a wholesale route driver in
September 1968, when Wholesale Manager Harry Sandler
asked him if he was going to buy a route, and if not,
Sandler was going to sell it to someone else. Sandler
approached West a second time a few days later to learn
if West had made up his mind. Sandler told West that he
was not trying to rush him, but he • wanted to know
because he had someone else who was interested West
told him, in that case, to go ahead and sell it because he
wasn't interested. West's route was taken over as a vendor
route by Ross Miller, and West became a relief driver 27
1. Robby Burleson
Robby Burleson had been employed as a retail route
driver about 4 years In July or August 1968, Mr. Hodges
called Burleson into his office. He told Burleson that
Borden was planning on selling the nine outlying routes
and that Burleson 's was one of the routes to, be sold.
Hodges inquired if Burleson had -given it any thought.
Burleson told Hodges he was not planning on it. Burleson
reminded Hodges of a conversation they had had in early
1968 when Hodges told him that Borden was not planning
on selling routes, as Borden had tried it out at different
places and it had never worked out. Burleson told Hodges
that he thought that if Borden was making any money, it
would not want to sell the routes. Burleson said further
that he didn't think he could make a go of it if Borden
,-The aforesaid finding is made on the credible testimony of Scott
I,It appears from the record that Sandler did not meet as much
resistance from the wholesale drivers as Hodges did from the retail drivers
in soliciting them to take vendor routes . The reason for this was that the
wholesale drivers had their wages materially reduced by the Respondent's
decision to cut out overtime. With the filing of unfair labor practice
charges herein by the Union , Borden discontinued the further sale of
vendor routes
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couldn't and he didn't care anything about the route.
Hodges called Burleson a second time later and inquired if
he had given the matter further thought. When Burleson
replied in the negative, Hodges asked if he could come out
to the house and talk to his wife about it. Burleson
declined the offer, telling Hodges that his wife was no
more interested than he in a vendor route. Burleson
inquired when the vendor routes were to be sold, and
Hodges replied "We would like to have them sold by
September." He further said "eventually they all were to
be sold."" On the basis of his conversation with Hodges,
Burleson looked for other employment because he did not
want to buy a route. He found employment with Holsum
Bakery and gave notice to Borden that he was quitting.
2 Jim Owen
Jim Owen had been employed on retail Route 35 about
1 year. His was the first retail route converted to a vendor
route and it was taken over by Maury Huff. In July or
August 1968, Wade Hodges solicited Owen to buy his own
route. Owen told Hodges he wasn't interested, and even if
he were interested, he would not buy a route so far from
his home. Owen inquired of Hodges if he would have a
job since he didn't want to buy a route. Hodges replied
that Owen would run a route as long as Borden owned a
route. Owen learned that retail driver Maury Huff was
going to buy his (Owen's) route, and he was requested by
management to let Huff ride with him to learn his route.
Owen made plans for a 1 week vacation he had earned,
and he tentatively agreed after the end of his vacation to
take over Route.47 although he was not anxious to take it
over. Owen told Hodges that while he was on vacation, he
intended to look for another job, but if he didn't find one,
he would take Route 47 Hodges agreed to this. During
his vacation, Owen found another job, and he quit'
3. Carl Paige
Carl Paige had 'worked for Borden as a retail route
driver for 4 years. In July or August 1968, Wade Hodges
approached Paige to buy a route. Paige told Hodges that
he hadn't thought about it, and he didn't think he could
gain anything by buying a route. When Paige asked if the
vendors were to bp given written contracts, Hodges replied
that Borden was not giving any written contracts, the
drivers would just have to take Borden 's word.
Hodges talked to Paige about three times in an effort
to,sell him a retail route, but Paige wanted more time to
think about it. According to Paige's testimony which I
credit, it appeared obvious to him that "if you didn't buy
your'route, you wouldn't be there," and he was aware this
already had happened when Maury Huff had bought Jim
Owen's route, a fact which was the topic of the drivers'
conversations. (Paige credibly testified that he started
looking for another job because, as he testified "I didn't
want to be in a position where I had to make a choice of
either buying or leaving before I was asked." Paige
resigned. At the time of his resignation, he was asked by
Hodges if he would consider staying. This was declined by
Paige, because, as he testified, "I felt I better take
another job while I could."
Conclusionary Findings
I find from the foregoing recital of facts that the
Respondent's sales managers, in soliciting a number of
employees to take over routes as vendors, represented to
"The quote is from Burleson 's testimony which I credit
them that their routes and other routes would be sold
from under them and others by certain future dates. By
such threats of loss of employment, I find that the
Respondent induced and forced employees Robby
Burleson , Jim Owen, and Carl Paige to quit their
employment and take other jobs. I further find that the
Respondent, in soliciting employees Clarence Paris,
Harold McCaslin, Walter Scott, John T. West, Robby
Burleson, Jim Owen, and Carl Paige , as well as other
employees, to take vendor routes under terms and
conditions differing from the union contract, refused to
bargain with the Union in violation of Section 8(a)(5) of
the Act. The duty of the Respondent to bargain with the
Union carried with it the corresponding duty to deal with
none other. By its conduct aforesaid, the Respondent also
coerced and restrained the employees in the exercise of
their rights guaranteed by Section 7 of the Act.29 I further
find that by transferring employees who refused to take
vendor routes, to other jobs, and by inducing employees to
transfer to vendor routes, the Respondent engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act. Carnation Company, 172
NLRB No. 215; Chemrock Corp., 151 NLRB 1074;
N.L.R.B v. Tulsa Sheet Metal Works, Inc, 367 F.2d 55,
59 (C.A. 5), cert denied 389 U.S. 837; Medo Photo Corp.
v N L'R.B , 321 U.S. 678.
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 operations of the
Respondent described in section I, 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 of commerce.
V. THE REMEDY
Having found that the 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
Having found that the Respondent unlawfully changed
the wages, hours, and conditions of employment of
wholesale and retail route drivers who were converted to
vendors, I shall recommend that such route drivers be
restored to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and that the Respondent make each
of them whole for any loss of pay, including loss of fringe
benefits, he may have suffered by reason of such changes
in the terms of their employment; and I shall recommend
that the Respondent offer immediate reinstatement to
their route driver jobs or substantially equivalent
employment to Robby Burleson, Jim Owen, and Carl
Paige, and make them whole for any loss of pay,
including loss of fringe benefits, they may have sustained
"Sec. 7 of the Act provides as follows.
Employees shall have the right to self-organization , to form , loin, or
assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all of such activities
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in section 8(aX3)
BORDEN, INC. '
by reason of their termination of employment with the
Respondent. I shall also recommend that the Respondent
restore and maintain in effect all collective-bargaining
terms relating to the wages, hours, and conditions of
employment, of the wholesale and retail route drivers
Fibreboard Corp. v. NLRB, 379 U.S. 203, 216;
Carnation. Company, 172 NLRB No. 215; N L.R B v.
Strong, 393 U S. 357; Chemrock Corporation, 151 NLRB
1074, 1081-82. Backpay shall be computed in the manner
set forth in F. W Woolworth Company, 90 NLRB 289,
plus interest at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716. I shall
recommend the posting of appropriate notices.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following-
CONCLUSIONS OF LAW
1. The Respondent, Borden, Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Sales Drivers and Helpers Local Union
No. 274, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3 At all times material herein, the Union has been the
exclusive representative for purposes of collective
bargaining in an appropriate unit composed of all of
Respondent's employees in its plant, including warehouse
and driver, employees, and excluding clerical employees,
traveling salesmen, fieldsmen not engaged in productive
labor in the plant, engineers, ice pullers, guards,
watchmen and supervisors as defined by the Act
4 Commencing on or about July 1, 1968, and at all
material times thereafter, the Respondent, in violation of
Section 8(a)(5) of the Act, has refused to bargain
collectively with the Union by (a) inviting, soliciting,
inducing, and coercing its retail and wholesale route driver
employees , to enter into individual contracts of
employment with the Respondent in derogation of the
Union's representative status, by (b) unilaterally changing
the wages, hours, and conditions of employment of its
retail and wholesale route driver employees, by (c)
modifying the existing collective-bargaining agreement
with the Union, without complying with the requirements
of Section 8(d)(1), (2), (3), and (4) of the Act, and by (d)
causing employees Robby Burleson, Jim Owen, and Carl
Paige to terminate' their employment by threats to
eliminate or by eliminating their routes or jobs because
they would not enter into individual agreements covering
wages, hours, and conditions of employment in
contravention of the existing collective-bargaining
agreement with the Union.
5. Because of the aforesaid conduct, the Respondent
has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by Section 7 of the
Act, and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to
Section 10(c), of the Act, as amended , it is recommended
that Respondent, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
121
(a) Failing or refusing to bargain collectively with the
Union as the exclusive representative of all,its employees
in the previously described appropriate unit
(b) Continuing or giving effect to any Distributor or
Vendor Agreements, wholesale or retail, with employees
in the previously described appropriate unit
(c) Dealing individually with any of its employees in the
previously described appropriate unit in derogation of
their bargaining representative, or unilaterally changing
their terms and conditions of employment, or modifying
its collective-bargaining agreement with the Union without
complying with the provisions of Section 8(d) of the Act,
or, in any like or related manner interfering with,
restraining, or coercing its employees' in the exercise of the
right to self-organization, to form labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection
2. Take the following affirmative action required to
effectuate the policies of the Act.
(a) Bargain, in good faith, with the Union, in the unit
found to be appropriate, with respect to wages, hours, and
working conditions
(b) Notify individually, and by the posting of the
attached notice, all employees in the unit found to be
appropriate with whom the Respondent has made
individual agreements or arrangements that it will no
longer offer, solicit, enter into, continue, or enforce such
agreements or arrangements, but without prejudice to the
assertion by the employees affected of any legal rights
they may have acquired under such agreements or
arrangements.
(c) Offer to all unit employees with whom the
Respondent had made individual arrangements and to
Robby Burleson, Jim Owen and Carl Paige, immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make each of them whole
for any loss of pay he may have suffered by reason of
employment under individual contracts
(d) Should the above-named individuals currently be
serving in the Armed Forces of the United States, notify
them of their right to employment and full reinstatement
upon application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended
(e) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to determine the amount of backpay
due hereunder
(f) Restore and maintain all provisions of the
collective-bargaining agreement with the Union.
(g) Post at its place of business in Phoenix, Arizona,
copies of the attached notice marked "Appendix."10
Copies of said notice, on forms provided by the Regional
Director for Region 28, shall be posted by it immediately
upon receipt thereof, and be maintained by it for at least
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
"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
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(h) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith."
findings, conclusions, recommendations, 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 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 "
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify the said Regional
Director , in writing , within 10 days from the date of this Order, what steps
the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
WE WILL bargain collectively with Sales Drivers and
Helpers, Local Union No. 274, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative
of all our warehouse employees and drivers, regarding
wages, hours, and working conditions, including any
and all distributorship agreements
WE WILL no longer enter into, continue, or enforce
any individual agreements with our drivers.
WE WILL offer to all drivers with whom we have
individual agreements immediate and full reinstatement
to their former or substantially equivalent positions as
drivers, without prejudice to their seniority or other
rights and privileges, and make each whole for any loss
of pay suffered by reason of employment under
individual agreement.
WE WILL NOT deal individually with drivers
concerning their terms and conditions of employment in
derogation of their bargaining representative
WE WILL NOT unilaterally change the wages, hours,
and terms and conditions of employment of our drivers.
WE WILL NOT modify the terms of our collective
bargaining agreement with the Union in violation of
Section 8(d) of the Act.
WE WILL offer immediate reinstatement to Robby
Burleson, Jim Owen, and Carl Paige to the jobs, or
substantially equivalent jobs, held by them and from
which they quit, and make them whole for any loss of
pay resulting from their termination of employment
WE WILL restore the terms and conditions of our
collective bargaining agreement to all drivers
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed by Section 7 of the
Act.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named Union, or any other labor organization.
Dated By
BORDEN, INC
(Employer)
(Representative ) (Title)
Note: We will notify the above-named men if they are
now serving in the Armed Forces of the United States of
their right to employment and to full reinstatement upon
application after discharge from the Armed Forces in
accordance with law.
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,
207 Camelback Building, 110 West Camelback Road,
Phoenix, Arizona, Telephone 261-3717