Bakery Salesmen's Local Union No. 227, etc.

BAKERY SALESMEN'S LOCAL UNION NO. 227, ETC. 851 Bakery Salesmen's Local Union No. 227, International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Independent and Associated Grocers, Incorpo- rated. Case No. 19-CC-154. June 26, 1962 DECISION AND ORDER On June 13, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel filed a brief in support of the Intermediate Report. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. See Arthur Venneri Company, 137 NLRB 828; 1 Bonded Freightways, Inc., 121 NLRB 924, enfd. 273 F. 2d 696 (C.A. 2) 2 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bakery Sales- men's Local Union No. 227, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Independent, and its officers, agents, representatives, successors, and assigns, shall : 1. Cease and desist from picketing the premises of Ashbrook or inducing or encouraging the employees of Ashbrook in the course of employment to refuse to perform services for Ashbrook with an ob- ject of forcing or requiring Ashbrook to cease doing business with Associated. 1 Member Fanning , who dissented on procedural grounds in the Vennere case, does not rely upon that decision as precedent for his decision here. The record in the instant case reveals that the object of Respondent ' s strike was to force the manning of Associated trucks by truckdrivers who were members of Local 227 In Member Fanning's opinion the elements of a true jurisdictional dispute are lacking in this case. 2 Contrary to our dissenting colleague , the record does not support Local 227's claim that it was only seeking to protect job rights of unit employees . What Local 227 dis- approved of was the fact that Associated ' s drivers were not members of Local 227 The record is replete with statements evidencing that this was the heart of the dispute, and we note in particular the assertion of Local 227 's secretary-treasurer, Stokke, that this dispute would be settled if Associated's drivers transferred into Local 227. 137 NLRB No. 102. .$52 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its office and supply to Ashbrook for posting at Ash- brook premises, copies of- . the 'notice attached whereto marked "Appendix." I Copies of the notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by & .representative of Local 227, .be posted immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Local 227 to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps have been taken in compliance. MEMBER BROWN, dissenting : Ruth Ashbrook Bakeries Corp. (Ashbrook) has been engaged in manufacturing bakery products in Seattle for about 35 years. Dur- ing this period it has bargained with the Respondent Local 227 through a multiemployer association, Seattle Bakers' Bureau (Bureau) ; and at all material times here it had a contract with Respondent. The Bureau contract unit represented by Respondent included wrapping,' ship- ping, and delivery functions. Customarily, Ashbrook employed a delivery system whereby deliver- ies were made by Ashbrook's employees or the purchasing bakery picked up the products at Ashbrook's dock. In either case, delivery was effectuated by employees represented by Respondent within the multiemployer unit of Bureau.' In 1959 Ashbrook initiated negotiations with Associated Grocers Incorporated (Associated). looking towards an agreement to supply Association with its bakery products. Associated is a cooperative sup- plying its members, independent retail grocers, with grocery products at wholesale. On September 8,1960, the negotiations resulted in a con- tract whereby Ashbrook's products would be picked up at Ashbrook's dock by trucks owned by Associated and operated by Associated's em- ployees. Respondent, after learning of this agreement, contacted all parties including Ashbrook, Bureau, and Associated. On January 3, 1961, Respondent picketed and called a strike against Ashbrook in pro- test against Ashbrook's changed method of distribution under its Bureau contract in the case of Associated and thus, in effect, for the ' .In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ' Two insignificant exceptions to this method of distribution were -recognized as follows: delivery of products to Perfection Bakery, United Bakery Service , and Coffee Time is made by independent contractors covered by the contract . The Trial Examiner properly con- sidered these inconsequential exceptions irrelevant herein. BAKERY SALESMEN'S LOCAL UNION NO. 227, ETC. 853 purpose of retaining Ashbrook's delivery functions within the Bureau bargaining unit. My colleagues find that the strike was inducement and encourage- ment of Ashbrook's employees and coercion and restraint of Ashbrook for an object of forcing or requiring Ashbrook to cease doing business with Associated in violation of 8(b) (4) (i) and (ii) (B) of the Act. I disagree. All delivery and pickups at Ashbrook's dock prior to the advent of Associated trucks were made by employees represented by Local 227 under the multiemployer contract with Bureau to which Ashbrook was a party. Accordingly, Local 227, as the collective-bargaining representative of the employees in the bargaining unit, had a direct interest to protect the work assignments historically and customarily performed by the employees of the Employer in the bargaining unit. This it sought to accomplish. It contacted Ashbrook when it first heard about the proposed arrangement with Associated. Ashbrook repeatedly refused to discuss this matter, assured Local 227 that it had nothing to worry about since Associated was going to join Bureau, and suggested a meeting with Associated. Associated in turn refused to meet and, when a meeting was arranged, flatly refused any accom- modation because of the collective-bargaining agreement it had with another labor organization. Associated was itself entitled to take this position under the circumstances. Since the majority finds, however, and I agree with this finding, that Local 227 made no demands for recognition in behalf of Associated's employees at this time or at any other time, no unlawful conduct can be charged to Local 227 under the circumstances merely because of Local 227's dealings with As- sociated. I view Local 227's discussions with Associated as the product of a suggestion by Ashbrook that Associated was going to join Bureau. It was only natural that under these circumstances Local 227 should seek a meeting with Associated. I regard the conversations at the meeting with Associated on December 29 as merely giving notice to Associated of prospective strike action against Ashbrook. Such notice does not violate Section 8(b) (4) (ii) (B).5 Recently, the Court of Appeals for the District of Columbia stated in the Food Employers' Council case that "the tacit but essential premise of a bargaining agreement is that the employer employs the employee to do certain work. When he agrees in good faith to terms and conditions, he represents that if the employees accept and abide by those terms, they will have this employment. We think employees, even absent a specific anti-subcontracting provision, could enforce their right to the work contemplated by a bargaining agreement." s 6 Plumbers and Pipefitters Local 471 (Wyckoff Plumbing), 135 NLRB 329; Construction, Building Material and Miscellaneous Drivers Local Union No 88, et at. (Marshall & Haas), 133 NLRB 1144 9 Retail Clerks Union Local 770, Retail Clerks International Association, AFL-CIO (Food Employers Council, Inc.) v. N.L.R.B., 296 F. 2d 368, 373. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So here, while no express subcontracting clause is involved, the em- ployees may have had a right to all the work contemplated by the bargaining agreement. That issue, however, need not now be deter- mined, nor whether Ashbrook violated any contract obligations to Lo- cal 227 in the premises. For, in my view, Respondent was in any event •entitled to take direct action against Ashbrook to protect the jobs and job opportunities of employees in the Bureau unit, and I regard any resulting disruption in Ashbrook's arrangements with Associated as an incidental effect such as is common to many primary strikes? As the court said in Food Employers Council, Inc., supra, "But that does not necessarily mean that every action by a union which would aid in alleviating a dispute is an `object' of the strike. Some such acts may be side effects of a strike. As is now well established, mere hopes and expectations do not necessarily mean objects." I regard whatever occurred between Local 227 and Associated which looked to Associated becoming a member of Bureau and thus having its trucks manned by members of Local 227 as a hope or expectation suggested and en- couraged by Ashbrook and not an object of Local 227's strike against Ashbrook. I would reverse the Trial Examiner and dismiss the case. 7 Local 761, International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Electric Company) v. N L R.B., 366 U.S. 667, 673-674. APPENDIX NOTICE TO ALL MEMBERS AND TO EMPLOYEES OF THE RUTH ASHBROOK BAKERIES CORPORATION OF SEATTLE Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby give notice that : WE WILL NOT picket the premises of Ashbrook or induce and encourage employees of Ashbrook to engage in a strike or other- wise to refuse to perform services for Ashbrook with an object of forcing or requiring Ashbrook to cease doing business with As- sociated Grocers, Incorporated. BAKERY SALESMEN'S LOCAL UNION No. 227, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN, AND HELPERS OF AMERICA, INDEPENDENT, Labor Organization. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional BAKERY SALESMEN'S LOCAL UNION NO. 227, ETC. 855 Office, 327 Logan Building, 500 Union Street, Seattle 4, Washington, Telephone Number, Mutual 2-3300, Extension 553, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Trial Examiner Wallace E. Royster in Seattle, Washington, on April 25 and 26, 1961. The complaint issued by the Gen- eral Counsel of the National Labor Relations Board, herein called the Board, upon charges duly filed and served by Associated Grocers, Incorporated, herein called Associated, alleges that Bakery Salesmen's Local Union No. 227, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Independent, herein called Local 227, has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(4)(i) and (ii)(B) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. All parties were represented at the hearing and briefs filed by each have been received and considered. Upon the basis of the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Associated is a cooperative association engaged at Seattle, Washington, in sup- plying at wholesale, groceries and related products to its members who operate retail grocery establishments. During the year preceding the issuance of the com- plaint, Associated purchased and received goods orignating outside the State of Washington to a value in excess of $1,000,000. Ruth Ashbrook Bakeries Corpora- tion of Seattle, herein called Ashbrook, is a Washington corporation engaged at Seattle in the operation of a bakery and in selling bakery products at wholesale. During the year mentioned above, Ashbrook purchased and received goods originat- ing outside the State of Washington to a value in excess of $50,000. I find that Associated and Ashbrook are employers within the meaning of Section 2(2) of the Act, and that their activities are in and affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 227 is the collective-bargaining representative of Ashbrook's office employees and of those employees who are engaged in wrapping, shipping, and delivery func- tions. Since May 1960, Local 227 has had a contract with Ashbrook covering such employees. I find that Local 227 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Until early January 1961, Ashbrook baked sweet rolls, pastries, buns, rolls, and "brown 'n serve" products. Ashbrook's entire production was sold to other bakeries who received the baked goods either by delivery by Ashbrook or by pickup at Ashbrook's loading dock. The trucks used for delivery and those used for pickup were uniformly manned by members of Local 227. In September 1960, Ashbrook entered into a contract with Associated in which it agreed to supply baked goods to Associated and, as a new venture, to furnish Associated with bread for the latter's private label. Associated contemplated that the baked goods and the bread would be sold at retail in the stores of its members. Learning something of this arrangement, Ross Stokke, an officer of Local 227, telephoned Ashbrook to inquire how delivery would be made to Associated. Presi- dent Stiles of Ashbrook answered, he testified, that pickup would be made at Ash- brook's dock by Associated drivers. Stokke, over the period of the next few months, spoke by telephone on a number of occasions to Arthur Lalime, the manager of Seattle Bakery Bureau, an organization through which Ashbrook is represented for bargaining purposes with Local 227. At the suggestion of Lalime, Stokke then made a number of telephone calls to Lewis Turner, a division manager 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Associated, in an attempt to discuss with Turner the manner in which Associ- ated would distribute products supplied to it by Ashbrook. Shortly before Christ- mas, according to Turner, Stokke telephoned again in that connection and when Turner refused to arrange a meeting Stokke said that it would be a "shame" if Associated's trucks were to be loaded with bread and unable to move.' A day or two after Christmas Stokke telephoned Turner again. On this occasion Turner referred Stokke to Leslie Sherman, manager of Food Industry Incorporated, an association of employers in which Associated held membership and through which Associated was represented for purposes of bargaining with labor organizations. On December 29, Sherman met with Stokke and other representatives of, or advisers to, Local 227. According to Sherman, Stokke said that Local 227 desired to be recognized by Associated and to reach agreement with it concerning the distribu- tion of bakery goods. Sherman answered, he testified, that Associated had a contract with another labor organization covering employees who drove Associated's trucks. Joseph Diviny, vice president of Local 227's parent organization, said that the de- livery of bakery products fell within the jurisdiction of Local 227. Diviny went on to say, according of Sherman, that Local 227 with the cooperation of the union representing the bakers might stop the delivery of Ashbrook's products to Associated drivers? Stokke interjected, according to the credited version of Sherman, that Associated drivers would not be permitted to pick up bread at another bakery unless Associated drivers were members of Local 227. The meeting was a short one and Local 227 gained no concessions from Sherman. In the morning of January 2, a holiday, Stokke sent a telegram to Ashbrook advising that picketing of Ashbrook's premises would begin that day in order to force Ashbrook "to bargain collectively with us concerning your plan to change your method of distribution." In the same morning Stokke and Joe Collins, another agent of Local 227, came to Ashbrook's bakery and spoke with Stiles. According to Stiles, Local 227 was protesting the fact that Ashbrook products would now be distributed by the use of trucks not manned by members of Local 227. Collins said that the interest of Local 227 was to see that its members drove the trucks used for the delivery of bakery products. Stiles explained that delivery was being made at Ashbrook's dock and that it appeared to him that Local 227 should discuss the matter with Associated. Stiles asked when the pickets would appear and Stokke answered that they would be brought to the scene when he wanted them. Stiles left the premises but returned after 6 that evening. Stokke and Collins were still there and Stokke said that nothing would happen until the Associated trucks ap- peared. In the early morning of January 3, a driver of Associated appeared with a truck and started to back it to the loading dock. At this point Stokke and Collins appeared with picket signs and began a patrol. The picket signs read, "ON STRIKE. RUTH ASHBROOK BAKERIES REFUSED TO BARGAIN COLLECTIVELY WITH LOCAL 227 BAKERY SALESMEN." The truck was nonetheless brought to the dock and was loaded by Ashbrook's supervisory personnel. A second truck was loaded a short time later in the same fashion. In the early evening of January 3, Stokke and Collins returned and again picketed. Stiles testified credibly that Collins told Ashbrook employees not to load Associated trucks. No pickets came to Ashbrook on January 4 but they returned in the early morning of January 5. Thereafter, until January 11, pickets were at the bakery during operating hours. At some time during the day of January 5, those Ashbrook employees represented by Local 227 ceased work and did not return until after the removal of the pickets. During the picketing employees of some customers refused to cross the picket line. On January 4 and again on January 6, Local 227 sent telegrams to Ashbrook as- serting that Ashbrook was changing its method of distribution and refusing to bargain with Local 227 about the change. Marvin Wanner, an employee of Ashbrook in the unit represented by Local 227, testified that at the direction of Collins he joined other Ashbrook employees in the strike on January 5. In the morning of January 6. Wanner went to the office of Local 227 and asked Collins and Stokke to explain the reason for the strike. After some questioning, according to Wanner's credited testimony, Stokke said that if the Associated drivers would transfer into Local 227 "that would settle everything." Collins and Stokke said that Associated was refusing to bargain with Local 227. I Stokke denied that he so expressed himself. Considering the efforts later made by Local 227 to stop deliveries to Associated, I credit Turner in this particular. Diviny denied that he said anything of the sort. It is not clear that Diviny spoke with authority from Local 227 and in any event nothing turns on the point. In con- sequence I leave this slight point of credibility unresolved. BAKERY SALESMEN 'S LOCAL UNION NO. 227, ETC. 857 Local 227 contends that its contract with Ashbrook and the practices and customs of the industry require that no delivery of baked goods from Ashbrook be made and no pickup at that location be permitted unless the vehicle is driven by a mem- ber of Local 227. There is no provision in the contract to that effect but it seems to be true that until the appearance of the Associated trucks in the morning of January 3, with exceptions of no consequence here, all deliveries and pickups were made by Local 227 members. I think it obvious, and I find, that Local 227 desired that no deliveries from or pickups at Ashbrook be made by anyone not its member. The arrangement made by Ashbrook with Associated did not give Ashbrook any control over Associated's drivers. The assertion by Local 227 that Ashbrook had refused to bargain with it has meaning only if Local 227 considered that Ashbrook should have consulted with it about whose employees should drive the Associated trucks. The picketing by Local 227 and the strike called by Local 227, even if nominally characterized as an attempt to force Ashbrook to bargain, was of necessity an at- tempt to force Ashbrook to change its contractual relation with Associated. The picketing on the first day was designed to affect only the pickups by Associated. Ash- brook and Associated had agreed upon a plan for doing business with each other and Local 227 by the picketing and by the strike was seeking to disrupt this arrange- ment. Even it be true that Ashbrook conceivably could have continued to supply products and the latter to accept them by making a change in the union affiliation of Associated's drivers it is nonetheless the fact that Local 227 exercised its authority or influence over Ashbrook employees to bring about a strike and posted its pickets to bring about a cessation of business between Ashbrook and Associated because it disapproved of the method of distribution which the contract established. The complaint alleges that Local 227 demanded of Associated that the latter as- sign the work involved in pickups at Ashbrook to members of Local 227. Local 227 denies that this is so. The complaint alleges that the picketing and the strike were implementations of this ascribed demand and that the dispute lies between Associated and Local 227. Local 227 asserts that its only dispute is with Ashbrook and that it derives from Ashbrook's refusal to bargain The evidence supports the complaint. I greatly doubt that on December 29 or on any other occasion any representative of Local 227 expressly demanded recognition from Associated or formally proposed contract terms to cover the affected drivers. But the persistent attempts by Local 227 to meet with officials of Associated and to "discuss" methods of distribution necessarily contemplated recognition and bargaining about who should man the trucks. There was nothing else to "discuss." Stokke candidly admitted to Wanner that if Local 227 members were employed by Associated for Ashbrook pick- ups, the dispute would be brought to an end. When Associated refused to capitulate the picketing and the strike ensued By picketing the premises of Ashbrook, by instructing Ashbrook employees not to load Associated trucks, and by calling a strike of Ashbrook employees, Local 227 has induced and encouraged individuals employed by Ashbrook to engage in a strike or to refuse in the course of employment to perform services. By the picketing and strike, Local 227 has threatened, coerced, and restrained Ashbrook. An object of Local 227's conduct as detailed above was to force or require Ashbrook to cease doing business with Associated. Local 227 has thereby violated Section 8(b) (4) (i) and (ii ) (B) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Local 227 set forth in section III, above, occurring in connection with the operations of Ashbrook and Associated 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that Local 227 has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Ruth Ashbrook Bakeries Corporation of Seattle and Associated Grocers, In- corporated, are each employers within the meaning of Section 2(2) of the Act and 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD persons engaged in commerce or in an industry affecting commerce within the mean- ing of Section 8(b) (4) (ii) of the Act. 2. Bakery Salesmen's Local Union No. 227, International Brotherhood of Team- sters, Chauffeurs, Warehousemen, and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing at the premises of Ashbrook and by calling a strike of Ashbrook employees with an object to force or require Ashbrook to cease doing business with Associated, Local 227 has violated Section 8(b)(4)(i ) and (1i ) (B) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local 282, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and Twin County Transit Mix, Inc. Case No. 2-CC-6.4.9. June 26, 1962 DECISION AND ORDER On December 14, 1961, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. There- after, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications noted below. Like the Trial Examiner, we find that the primary dispute in this case was between the Respondent and the industry group of employers over the terms of a new contract, and that the Respondent's activity against Twin County, its suppliers, including Acme, its customers, in- cluding Ruland Realty Corporation and De Santis Construction Cor- poration, the suppliers and customers of Acme, including Schwerman Company of Pennsylvania, Inc., Chemical Tank Lines, Inc., Lone Star Cement Corp., and Hercules Cement Company (a Division of Ameri- can Cement Corp.) was clearly secondary.' Accordingly, we adopt the Trial Examiner's finding that the Respondent violated Section 8 (b) (4) (i) and (ii) (B) of the Act. We agree with the General Coun- sel, however, that the scope of the order recommended by the Trial 1 Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry, etc (Detroit Edison Co.) v. N L R B , 278 F 2d 858 (C A D C ), enfg. as mod 123 NLRB 225 ; United Marine Division, Local 333, International Longshore- men's Association, etc. (New York Shipping Association ), 107 NLRB 686, 709 1.37 NLRB No. 105.