Carnation Company v. National Labor Relations Board

The Carnation Company petitions to set aside a decision and order of the National Labor Relations Board, which found that certain dairy route salesmen were employees rather than independent contractors. 172 N.L.R.B. No. 215, 61 L.R.R.M. 1127 (1968).

Carnation processes and distributes dairy products in interstate commerce. This controversy arose in Phoenix, Arizona, where Carnation was a party to a collective-bargaining agreement with Local No. 274 of the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers.

On August 1, 1966, two months after executing a new two-year collective-bargaining agreement with Local 274, Carnation negotiated individually with its 25 wholesale and 83 retail route drivers, seeking to enter into distribution agreements. Local 274 challenged these negotiations as bargaining in violation of 29 U.S.C. § 158 (a) (1) and (5) 1 and (d).

At the date of the N.L.R.B. hearing, Carnation had entered into distributorship agreements with ten of its wholesale drivers and with 28 of its retail drivers. The Board decided that these agreements were invalid; that the route men were employees who remained covered by the Local 274 bargaining…

ORDER MODIFYING OPINION AND DENYING REHEARING

The Clerk is directed to file the Board’s untimely petition for rehearing.

There is also before us the petitioner’s ‘Motion for Clarification’ of our opinion of April 30, 1970. In its petition, the Board has requested that we modify our opinion by providing that on the remand “the Board is not precluded from considering the propriety of ordering restoration of the status quo ante” pending bargaining negotiations should it find a violation of the duty to bargain, and that restoration is an appropriate remedy therefor.

We have concluded that because the decision concerning remedies initially lies with the Board, the Board’s petition, in part, is well taken. Upon remand the Board is not precluded from ordering any appropriate remedy provided by law, subject, of course, to judicial review.

No remedy, whether for the benefit of Local 274 or for individual drivers, however, can be sustained unless it is predicated upon a finding that Carnation unlawfully refused to bargain. To the extent that our former opinion may have suggested that remedies previously ordered for discharged drivers may be sustained without a finding that Carnation…

429 F.2d 1130 CARNATION COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 23255. United States Court of Appeals, Ninth Circuit. April 30, 1970. Rehearing Denied August 12, 1970. John Bacheller, Jr. (argued), of Fisher & Phillips, Atlanta, Ga., for petitioner. Herman Levy (argued), Asst. Gen. Counsel, Washington, D. C., Samuel Slaff, Counsel, N. L. R. B., Phoenix, Ariz., Charles M. Henderson, Regional Director, N. L. R. B., Albuquerque, N. M., for respondent. 1 Before HAMLEY and ELY, Circuit Judges, and GOODWIN, * District Judge. 2 ALFRED T. GOODWIN, District Judge. 3 The Carnation Company petitions to set aside a decision and order of the National Labor Relations Board, which found that certain dairy route salesmen were employees rather than independent contractors. 172 N.L.R.B. No. 215, 61 L.R.R.M. 1127 (1968). 4 Carnation processes and distributes dairy products in interstate commerce. This controversy arose in Phoenix, Arizona, where Carnation was a party to a collective-bargaining agreement with Local No. 274 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers. 5 On August 1, 1966, two months after executing a new…