Retail Clerks Union, Local No. 775

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks Union, Local No. 775, Retail Clerks International Association, AFL-CIO and Associat- ed Food Stores, Inc., California Division. Cases 20-CE-55-1 and 20-CE-55-2 November 19, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Relations Act, as amended , the National Labor Relations Board orders that the complaint be, and it hereby is, dismissed in its entirety. Retail Delivery Drivers. Driver Salesmen, Produce Workers and Helpers of Alameda County, Local 588, International Brotherhood of Teamsters. 2 See Retail Clerks Union, Local No. 648, RCIA, AFL-CIO (Brentwood Markets), 171 NLRB No. 142. TRIAL EXAMINER'S DECISION On March 3, 1970, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter exceptions and briefs in support thereof were filed by the Charging Party (Associated Food Stores, Inc., California Division) and by the General Counsel, and a letter adopting the General Counsel's exceptions and brief was filed by the Intervenor.' A brief in reply to the exceptions and briefs and in support of the Trial Examiner's Decision was filed by the Respondent, Retail Clerks Union, Local No. 775, Retail Clerks International Associa- tion, AFL-CIO. A brief amici curiae was filed by American Research Merchandising Institute, Nation- al Food Distributors Association, and Toiletry Mer- chandisers Association. 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 made by the Trial Examiner 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 this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. Like the Trial Examiner, we find no violation of Section 8(e) by the Respondent in this case. In arriving at this conclusion, however, we have no need to determine the precise contractual dividing line between work reserved for employees represented by Respondent and work excepted from that reservation as "driver salesmen" work. It is enough, as we find, that the record supports the reasonableness of the interpretation of the contract which sanctions Res- pondent's conduct complained about herein.2 ORDER Pursuant to Section 10(c) of the National Labor 186 NLRB No. 100 STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: On July 5, 1967, Associated Food Stores, Inc., California Division, herein- after referred to as Associated, filed charges against Retail Clerks Union, Local No. 775, Retail Clerks International Association, AFL-CIO, hereinafter referred to as the Respondent or Retail Clerks, in Cases 20-CE-55-1 and 20-CE-55-2. On November 30, 1967, an order consolidat- ing said cases was issued , as was a consolidated complaint and notice of hearing based upon the aforesaid charges. Said complaint alleges that the Respondent violated Section 8(e) of the Act. 'Respondent by its answer denies that it violated the Act as alleged. Pursuant to notice, a hearing in this proceeding was commenced in San Francisco, California, on May 28, 1968, before the undersigned, duly designated as Trial Examiner. On May 29, Respondent's motion was granted to continue the hearing indefinitely, pending the Board's disposition of the Brentwood and Cala cases.' The Board issued its decisions in such cases on June 5 and August 26, 1968, respectively. On September 27, 1968, General Counsel moved to dismiss the complaint on the ground that the decisions in said cases disposed of the unfair labor practices alleged herein. On October 28, 1968, the undersigned issued an order granting General Counsel's motion. Thereafter, the Charging Party and Intervenor, Retail Drivers, Driver Salesmen, Produce Workers and Helpers of Alameda County, Local 588, I.B.T.,2 hereinafter referred to as Teamsters Local 588, filed Requests for Review of the Trial Examiner's Order. On February 17, 1969, the Board reversed the Trial Examiner's Order Dismissing the Complaint and ordered that a further hearing be held ". . . for the purposes of taking evidence on the issues raised by the Complaint, the Trial Examiner's Order, and the Requests for Review." Accordingly, pursuant to Notice, a further hearing was held in San Francisco, California, before the undersigned, on September 30, October 1, and 21, 1969. Within the time designated therefor, briefs were received from all of the parties, as well as from American Research Merchandising Institute, National Food Distributors Association and Toiletry Merchandisers Association, as Amici Curiae. Upon the entire record in this case and from my observation of the witnesses as they testified, I make the following: I Retail Clerks Union, Local No. 648, RCIA, AFL-CIO (Brentwood Markets), 171 NLRB No. 142; Retail Clerks Union, Local 648, RCIA, AFL-CIO (Cala Foods, Inc.), 172 NLRB No. 200. 2 By order of the Acting Regional Director dated May 2, 1968, Teamsters Local 588 was permitted to intervene herein. RETAIL CLERKS UNION, LOCAL 775 665 1. FINDINGS OF FACT At all times material herein, Marsh Manor Market, herein called Marsh or Marsh Manor, has been a partnership with a place of business located in Redwood City, California, and has been engaged in the retail sale of food and nonfood products, During the year preceding the issuance of the complaint, Marsh Manor, in the course and conduct of its business operations, received gross revenues in excess of $500,000, and purchased and received goods valued in excess of $50,000 from suppliers within the State of California who obtained said goods directly from outside the State of California. At all times material herein, Busy Boy Markets, Inc., has been a California corporation owning and operating Woodside Manor Market, herein called Woodside or Woodside Manor. At all times material herein, Woodside Manor has been engaged in the retail sale of food and nonfood products at a place of business located in Redwood City, California. During the year preceding the issuance of the complaint, Woodside Manor, in the course and conduct of its business operations, received gross revenues in excess of $500,000, and purchased and received goods valued in excess of $50,000 from suppliers within the State of California who obtained said goods directly from outside the State of California. At all times material herein, Associated has been a wholesale distributor of grocery products in California, and has been engaged as a distributor of nonfood items to self- service retail food markets in the San Francisco Bay area, including Marsh Manor and Woodside Manor. During the year preceding the issuance of the complaint, Associated, in the course and conduct of its business operations, purchased and received at its California locations goods valued in excess of $50,000, which were shipped to it directly from suppliers located outside the State of California. At the time of the hearing, Marsh Manor and Woodside Manor were owned by Manor Markets, a California corporation. However, for the purposes of this hearing they are considered as separate employers, since at the times material herein they were owned by different legal entities. Marsh Manor, Woodside Manor and Associated are, and at all times material herein have been, employers engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATIONS INVOLVED As admitted by Respondent, it and Teamsters Local 588 are labor organizations within the meaning of Section 2(5) of the Act. 3 Consequently, when reference is made to the collective-bargaining agreement between the Respondent and the stores during the years they were operating, said agreement was applicable to both stores 4 Section 8(e) of the Act provides in part as follows It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any III. THE ALLEGED UNFAIR LABOR PRACTICES Marsh Manor and Woodside Manor are each retail food supermarkets located in Redwood City, San Mateo County, California. Marsh commenced operating in December of 1958 and Woodside in November of 1960. On August 16, 1968, the ownership of the stores was transferred from the partnership and Busy Boy Corporation, as set forth above, to a corporation known as Manor Markets which owns two other stores besides the two involved in this proceeding. This transfer apparently did not involve a change in actual management or principal owners. Joseph Azzopardi, president of Manor Markets, has been active in the management of both of the stores involved herein since they began operations. Since the beginning of their operations, Marsh and Woodside have had collective-bargaining agreements with Respondent by which they recognized Respondent as the collective-bargaining representative of all the employees within the respective bargaining units. For the purpose of this decision, employees within said bargaining units are collectively described as clerks or store employees. Since 1960, when Woodside commenced operating, the aforesaid collective-bargaining agreements have been identical for the two stores.3 The complaint sets forth certain provisions in the collective-bargaining agreement between the stores and Respondent which extended from March 29, 1964, to March 31, 1967. The complaint further alleges that on or about April 2, 1967, the stores and Respondent entered into a "Memorandum Agreement" which amended, renewed, and extended the 1964-67 agreement. The complaint sets forth certain provisions contained in the Memorandum Agreement which were in effect at the time the complaint was issued. The complaint further alleges that "since about February 1967, Respondent has attempted to require Marsh Manor and Woodside Manor to utilize employees of said stores represented by Respondent to rack nonfood items traditionally racked by employees of Associated." The sole issue in this case is whether or not Respondent and the two stores entered into an agreement whereby the stores agreed to cease or refrain from doing business with Associated, in whole or in part, to satisfy an illegal union objective in violation of Section 8(e) of the Act.4 It appears that the Brentwood and Cala cases, supra, differ factually from the instant case in several respects. They involve a different Teamsters local (Local 648). In the cited cases, the geographic area is San Francisco, whereas the area in the instant case is San Mateo County. The method by which Associated serviced the stores involved herein was unlike the method employed by the distributors involved in the cited cases. Also the clerks' work (type of products they handled) in the stores involved in the instant proceeding of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforceable and void 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD differed from that of the clerks in the stores involved in the cited cases .5 On the other hand, it should be noted that a study of the decisions in said cases and the record in this case discloses that the history of the area practices and bargaining by Local 648 is substantially the same as the history of the area practices in San Mateo County and bargaining by Local 775, Respondent herein. Also, it appears that the material provisions of the bargaining agreements in the two areas over the years were identical. The determination of whether certain provisions in the 1964-67 agreement between Respondent, as extended by the Memorandum Agreement executed on April 2, 1967, violated Section 8(e) of the Act "cannot be made without an inquiry into whether, under all the surrounding circumstances, the Union's objective was preservation of work" for the store's employees it represented or whether the said provisions "were tactically calculated to satisfy union objectives elsewhere." "The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis-a-vis his own employees." National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612, 644,645 (1967). Following is set forth the material provisions of the 1964-67 agreement and the Memorandum Agreement executed April 2, 1967. The,1964-67 agreement contains the following provisions: Section 1. RECOGNITION AND CONTRACT COVERAGE (a) RECOGNITION: The Employer hereby recog- nizes the Union as the sole collective bargaining agency for an appropriate unit consisting of all employees working in the Employer's retail food stores within the geographical jurisdiction of the Union except meat department employees and supervisors within the meaning of the National Labor Relations Act, as amended. (b) CLERK'S WORK: The work covered by this Agreement shall be performed only by members of the appropriate unit as defined in Section 1(a) hereof and such work shall consist of all work and services connected with or incidental to the handling or selling of all merchandise offered for sale to the public in the Employer's retail food stores including the demonstra- tion of such products, but excluding 4. Subject to the terms and conditions applicable to the area of non-food merchandise as hereinaft- er set forth in Sub-Section (c) of this SECTION 1, such work as is performed under prevailing practices within the geographical jurisdiction of Local #775 at the point of delivery by a driver- salesman engaged in servicing the retail food stores with merchandise directly from a delivery vehicle. (c) It is understood and agreed that the application of SECTION l(b)(4) to the area of non-food merchandise shall be subject to the following terms and conditions: 2. Where the stocking, rearranging and display- ing of non food merchandise, or of a category or categories thereof such as drugs, health and beauty aids, housewares, soft goods, books and magazines is being done by an employee of a rack jobber or service merchandiser in all or any of the retail food stores of an Employer within the geographical jurisdiction of the contract then, and in that event, an employee of a rack jobber or service merchandiser may continue to perform such work as aforesaid in all or any of the retail food stores of Employer within the geographical jurisdiction of the contract during the term of this Agreement. 3. Where, during the term of this Agreement, an Employer in the voluntary exercise of his independent discretion and business judgment undertakes to conduct the non food operations in all of his retail food stores within the geographical jurisdiction of this contract, either in its entirety or within one of the categories such as drugs, health and beauty aids, housewares, soft goods or books and magazines, either through his own warehouse or by drop shipment or truck delivery to his retail food stores, then, and in that event, the Employer agrees that in order to protect such then existing bargaining unit work, the work of stocking, rearranging and displaying of said non food merchandise which he has elected to handle as aforesaid shall thereafter be performed only by members of the bargaining unit during the term of this Agreement... . The "Memorandum Agreement" executed April 2, 1967, contains the following: The collective bargaining agreement between the parties, effective March 29, 1964, is hereby amended, renewed and extended as follows: Section 1 . RECOGNITION AND CONTRACT COVERAGE Subsection (c) and the reference thereto in subsection (b) 4 are deleted. * Essential to a resolution of the issue in this proceeding is a determination of the meaning of driver-salesmen in Section l(b)4 of the Retail Clerks collective-bargaining agreements as applied to the facts found in this case. The record is confused with respect to such a determination by reason of the fact that the parties, through counsel and witnesses, attempted to give the term itself a narrow or broad meaning, apparently to suit their respective posi- tions, not only in the instant proceeding, but also with respect to other conflicts in the industry over the use of rack jobber employees in the servicing of retail markets. While 5 However, the Trial Examiner does not intend to imply by pointing out the existence of these differences that the general principles enunciated in the decisions of the Board in said cited cases are not applicable to the instant case. RETAIL CLERKS UNION, LOCAL 775 667 Respondent sought to limit its meaning, the other parties sought to give it a broad meaning. In the early 1930's, grocery stores in San Mateo County carried only a few nonfood items which their employees shelved and serviced. At that time the nonfood items were delivered to the store with food items by drop shipment, that is the merchandise was delivered to the storage room or back room. The store employees then serviced the merchandise by checking it out, shelving it, pricing it and handling other such details. In the late 1930's, the variety of nonfood items sold by the stores was increased. At about the same time, the "driver-salesman" made his appearance on the scene handling certain types of perishable merchan- dise, such as bakery goods and dairy products. The driver- salesman, who was an employee of the supplier, serviced the store by determining the items which needed replenish- ing and obtaining said items directly from his truck. For the purposes of this decision the supplier's employee who follows this procedure will be referred to hereinafter as the "classic driver-salesman." Toward the end of World War II the "rack jobber" or "service merchandiser" entered the field and began supplying nonfood products previously serviced by the clerks. It appears that, at first, no preorders were taken but, rather, that their employees serviced the stores as classic dnver-salesmen. The variety of items serviced by some of the nonfood suppliers expanded rapidly and it became impossible for their employees to service the stores with the many items offered without using a preorder procedure. The preorder procedure consisted of two steps. At the time the supplier's employee shelved the products he determined what items and quantities would be needed the next time he serviced the store and wrote up an order to cover the estimated needs. This procedure was followed on his each successive visit to the store. For the purposes of this decision, this procedure will be referred to as the "Regal Sales method."6 In the Regal Sales method, it is important to note that the supplier's employee shelves products directly from his truck. From the time the two stores involved herein opened until January 1, 1967, Regal Sales Company supplied certain nonfood products (categorized as health and beauty aids and household wares) sold by said stores, using the method above described, the Regal Sales method.? One or both stores also received "nonfood products" from four other suppliers. Supermarket Sales Company supplied clothing; Moore and Clark also supplied health and beauty aids and clothing; Laurel Card Company supplied greeting cards; and Hartz Mountain Pet Foods ostensibly supplied the pet foods. The first two used the Regal Sales method, 6 This was the method used by Regal Sales Company, as noted below, which is the reason for so naming the method There are variations of this method, such as the use of two different employees by the supplier, one who takes the preorder and a second employee who delivers the merchandise and shelves it from his truck This decision will consider only the Regal Sales method and not any variations thereof since it appears that a consideration of such variations is not material herein 7 Although there is testimony that not always the same Regal Sales' employee who took the preorder shelved the merchandise, it appears from the credited testimony of Phillip Gallian , president of Regal Sales Company, that ordinarily its employee who made up the preorder shelved the greeting card company used the drop shipment method,8 and the record does not disclose what method was employed by the pet food company. On January 1, 1967, the two stores changed, as their supplier of health and beauty aids and household wares, from Regal to Associated Food Stores. Associated used a different method for servicing the stores than the two methods described above, the classic driver- salesman method and Regal Sales method. The Associated method is essentially as follows: an Associated employee (a member of Teamsters Local 70) delivers the nonfood products and food items to the back room or storage room of the stores with the nonfood products segregated from the food items; and sometime later another Associated employee (a member of Teamsters Local 588), unpacks the nonfood products and shelves them, and at the same time makes up an order for the nonfood products which he estimates will be needed to replenish the shelves on his next visit to the store. The process is then repeated. In the middle of January 1967, Murray Henage, president of the Respondent, came to the Marsh Manor store and had a conversation with Joseph (Bill) Lawler, the store manager, in which he stated that the Associated employee could not shelve the nonfood products in the store. Again, sometime in the early part of February, Henage came to the store and protested the fact that Associated's employee was stocking the shelves. Lawler's credited testimony as to this incident is as follows: A. . . . A man, I refer to him as our nonfoods man, was putting this stock, working on the stationary [sic ] rack, we have stationary, and Mr. Henage says, "Who is that fellow?" and I said, "He's our nonfoods man from Associated," and he says, "He can't put up those." Q. Who is "he"? A. Mr. Henage. Q. What did you say? A. And he says, "tell him he can't put it up," and so I called the gentleman over, I don't even recall his name now, the fellow who was working at that time, the Associated nonfoods man, and introduced him to Mr. Henage. I said, "This is Mr. Henage from the Retail Clerks Union. He says you can't put up those, that merchan- dise." And the fellow says, Mr. Henage says, "Mr. Henage," he says "why not, sir? I am a member of the driver salesmen's union"; and Mr. Henage told him, he says, "because of the fact," he says, "you are not a driver salesman." He says, "The driver salesman goes out to the truck, gets his merchandise, brings it in." He says, "In your case, the merchandise came from the back room out to the floor"; and he told him to quit putting up the merchandise. the products, but that sometimes a supervisor substituted when the regular man was ill It also appears from his credited testimony that any variations followed by Regal Sales' employees from the method described herein were minimal and need not be considered 8 it appears that the greeting cards were delivered by parcel post or commercial carver and some time after delivery an employee of the greeting card company shelved the cards. Although this constituted the drop shipment method, the fact the greeting card company was permitted to use such a method for its one product is considered to be of no significance in resolving the issues in this case 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Was there anything else said during that conversation? A. Well, the rest of the conversation was more or less between the two. The fellow from Associated, that was putting it up, said, "Well, it's almost lunch time. I'm going to go call my boss and" he says, "and have lunch." So he left the store. He quit putting up the merchandise and left the store and said he was going to call his boss. By letter dated February 24, 1967, Roland Davis, attorney for the Respondent, notified Azzopardi that he had been instructed by the Respondent to submit to "the adjustment board" a dispute between the two stores and the Union concerning a violation of Section 1 of the collective- bargaining agreement by permitting employees of Associat- ed to stock nonfood products on the shelves and to render other services incidental thereto. The letter stated that by the terms of the collective-bargaining agreement such work is reserved to store employees represented by Respondent. Eventually this matter was submitted to the adjustment board. There were two meetings of the adjustment board, on March 22, 1967, and April 3, 1967, which, however, did not result in a resolution of the dispute. Respondent apparently took the position that by, changing to the Associated method (which involved drop shipments and deliveries by one Associated employee and the making out of orders and shelving by another Associated employee), the stores could not contend that the prevailing practice (Regal Sales method) was being followed, and, therefore, the shelving should be done by the store employees. It appears that the stores took the position that there was no material difference in method between that of Regal Sales and that of Associated. Also, it was argued that the store employees had never performed the work being done by the Associated employees and, therefore, under the contract, Associated employees could continue to shelve the products. However, this position apparently was altered by a letter from Azzopardi to the Regional Attorney, Harvey Letter, of Region 20 dated October 20, 1967, which letter was drafted by the attorney for the Charging Party (Associated). In this letter, Azzopardi concedes that Respondent has a contractual claim to the shelving work performed by Associated employees, but contends that, since the Retail Clerks members have never performed such work in the past, the contract clause in question constitutes a violation of Section 8(e) of the Act. The record demonstrates that the Respondent has consistently taken the position that the objection of the Respondent was not based on the change in the suppliers, but on the change in the method of servicing (by drop shipment instead of directly from a truck). In the course of the hearing, 9 It is noted, however, that there is confusing testimony in the record, in that Respondent's witnesses, particularly Cohenour, attempted to establish that while the Retail Clerks had no objection to the Regal method being continued in Marsh and Woodside because that was the prevailing practice in said stores, it did consider the method as violative of Section l(b)4 of their contract should it not qualify as a prevailing practice in other stores. 10 In the course of the hearing and in some of the briefs issues were raised and discussed as to whether or not there was an "entering into" within the 10(b) period with respect to the 1964-67 agreement and as to whether an interpretation of the Union which was not accepted by the stores could constitute an "entering into" within the meaning of Section Respondent asserted through one of its witnesses, Carl Cohenour, its secretary-treasurer, that had Associated followed the Regal Sales method in servicing the store, Respondent would have had no objection, since it would have constituted a continuation of a "prevailing practice." 9 It is concluded that the 1964-67 bargaining agreement, as extended by the Memorandum Agreement executed April 2, 1967, prohibits the stores from doing business with Associated (by the "Associated method") insofar as furnishing to the stores the service of stocking the shelves and the other related services.10 The record reveals that there is nothing in the history of bargaining, the area practices and practices in the two stores that would indicate the language in Section 1(b) of the contract should be construed to permit a finding that the in-store services of Associated under its method fall within the exception contained in subparagraph 4 thereof. Section 1(b) reserves to the clerks "all work and services connected with or incidental to the handling or selling of all merchandise" in the stores. The exception thereto in subparagraph 4 is "such work [with respect to nonfood merchandise] as is performed under prevailing practices within [San Mateo County] . . . at the point of delivery by a driver-salesman engaged in servicing the retail food stores with merchandise directly from a delivery vehicle." It appears that the Associated method does not fall within the category of "prevailing practices" in San Mateo County. The Associated method of servicing food stores apparently was not employed in the San Mateo area until late 1966 or the start of 1967 by any general merchandiser of nonfood products and it appears that up to the time of the hearing Associated was the only such "rack jobber" to use drop shipments." It also appears that the Associated employee who services the nonfood merchandise in the stores is not generally known in the industry as a "driver- salesman." Certain of the General Counsel's witnesses, notably Azzopardi, referred to the Associated employees who do the shelving as "driver-salesmen." He testified that they call themselves driver-salesmen, but it is not clear from his testimony whether they so refer to themselves only because they are members of the "driver salesmen's union." 12 It does not appear that there is any basis for finding that they were generally or historically considered to be driver- salesmen in the industry. It is noted that Clarence Sharp, Associated's division manager, testified that the job classification of its employees who shelve products in the stores is that of "outside checker." 13 Also, the manual which Associated gives to such employees refers to them as "salesmen" and "servicemen." General Counsel's witness, Fred Paredes, president of Teamsters Local 588 which represents the Associated employees who service the stores, testified that 8(e) of the Act. In view of the above conclusion of the clear meaning of the 1964-67 contract, as extended by the Memorandum Agreement, and the fact that the Memorandum Agreement was executed within the 10(b) period, these issues need not be resolved. 11 As noted above , the only reference in the record to a supplier employing drop shipments was to the Laurel Card Company which limited itself to merchandising greeting cards. 12 Retail Delivery Drivers, Driver Salesmen , Produce Workers and Helpers of Alameda County Local No. 588, I.B.T. 13 The title in Local 588's contract for Associated 's employees who service the stores is "outside checker servicemen." RETAIL CLERKS UNION, LOCAL 775 669 such employees are classified as "outside checkers" and "service men," and that "driver-salesmen" are those who "sell off the truck." It is further noted that Respondent's witness, Arthur B. Jacobs, who is the executive director of Food Employers Labor Relations Association, Inc., and who has had extensive experience in representing food stores in San Mateo County, testified that under the Associated's method of servicing the stores its employee who stocks the shelves is not a driver-salesman in that he is not working from a delivery vehicle but stocking merchandise which has been drop shipped into the back room of the store. This, he testified, is not only his understanding but the interpreta- tion of the Employers' Association which he represents. His testimony indicates that at least a significant segment of the industry does not categorize the Associated employees as driver-salesmen, and, as indicated above, there is no basis for finding that such servicemen have historically or generally been referred to by that term. The language of the contract itself is unambiguous with respect to the exception of driver-salesmen, Section 1(b)4, as applied to the facts in this case. It is clear that the Associated employee does not fall within the reasonable intent of the language in said exception. He is not a driver, for he does not deliver the merchandise. The delivery is made by another employee of Associated, who is a member of a different local of the Teamsters (Local No. 70). Furthermore, he does not service the store directly from a delivery vehicle but does so from the back room or storeroom of the store where the merchandise has been drop shipped. It is further noted that in the 1964-67 agreement, Section 1(c)3 clearly sets forth the understand- ing of the parties that should the store elect to use the drop shipment method, it would automatically be required that the shelving of such merchandise be done by the store clerks. Although the April 1967 Memorandum Agreement deleted Section 1(c) from the 1964-67 agreement, this deletion did not serve to modify Section 1(b)4 so as to enlarge the exception therein. Thus, it must be concluded that by the extension of the 1964-67 agreement through the Memorandum Agreement executed April 2, 1967, the Respondent and the stores involved herein "entered into" a contract which prohibited the stores from doing business with Associated insofar as furnishing the service of stocking nonfood merchandise on the stores' shelves and related services by its (Associated's) employees using the Associated method.14 The question remains, however, whether the objective of the Union in "entering into" said contract on April 2, 1967, was lawful or unlawful. Testimony was introduced through General Counsel's witnesses that the Associated method is virtually identical with that of the Regal Sales method except for the use of the drop shipment which difference, it is implied, is of little or no significance. Based upon such testimony, the parties opposing the Respondent make two arguments. They argue that the Associated method is no more than a continuation of the Regal Sales method and, therefore, the work of the Associated employee in shelving Associated products was not properly claimable under the contract. This argument is wholly inconsistent with their concession that the Retail Clerks do have a "contractual claim" to the work. Moreover, the attempt to minimize the interpolation of the drop shipment is abortive. In light of the findings hereinabove, it is unsubstantiated by the history of the area practices and of the bargaining of the Retail Clerks to say nothing of the very language of Section 1(b) of their contracts starting in 1955 and in existence at the time material herein. Therefore, it is concluded that the argument that the Associated method is no more than a continuation of the "prevailing practices" (the Regal method) within the meaning of Section 1(b)4 of the contract is without merit. The other argument that is made based upon this testimony (to the similarity of the two methods) is summarized hereinbelow. The Associated employee per- formed the same tasks as did the Regal employee in shelving the products. This is true except in one respect: the Associated employee moved the products from the back room or storage room in the stores to the shelves, whereas the Regal employee moved the products directly from his truck. It is contended, and it is so found, that the change to the Associated method caused no diminution in the work of the store clerks. From this the argument is made that the Respondent in entering into the contract upon which its claim was based had the objective of attempting to "capture" work that had never been performed by the store clerks. The Trial Examiner is of the opinion that this argument is fallacious in that it assumes that the words "objective" and "effect" are necessarily synonymous. Undoubtedly, the effect of the enforcement of the contract would give to the clerks in the two stores work (the shelving of the nonfood products if they are drop shipped by Associated) that they had not previously performed, but that is not a basis for concluding that the objective of the contract was to "capture new work." The history of the area practices and bargaining over the years in San Mateo County parallels that in San Francisco. It appears that for a period of years the Retail Clerks' contracts in San Francisco expired some months prior to the contracts in San Mateo County and, therefore, the Retail Clerks local in San Francisco took the lead in negotiating contracts. It also appears that there was a close consultation between the Retail Clerks locals in both areas. The locals in both areas became increasingly aware of the expansion of the merchandising by rack jobbers and the proliferation of the products they sold and serviced in the stores. In 1955 the locals incorporated identical provisions in Section 1(b) of their contracts which attempted to preserve the work of the retail clerks units from further inroads by the rack jobber . Section 1 (b) remained the same from 1955 to the time of the hearing except for the 1964-67 contract which amplified Section I(b) but which did not alter its effect. In any event, by the Memorandum Agreement executed April 2, 1967, the section was restored to the same language as was contained in the contracts of 1955 to 1964. It is apparent that the objective of the language was to preserve all in-store work for the store 14 While it is not clear whether the General Counsel concedes this to be so, it appears that the Charging Party and the Intervenor either expressly or impliedly so concede 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerks with certain exceptions including the exception of the work of "driver-salesman" servicing the store directly from his truck. Thus, it is concluded that the objective of the language of such contracts, including the 1964-67 contract as extended by the Memorandum Agreement was to preserve the in-store work of shelving all products which are moved from the back room or storage room of the stores which has historically been done by store clerks in the San Mateo area as well as in the two stores involved herein. Thus, although the store clerks had never shelved the products which had been supplied to the stores by Regal and subsequently Associated, the objective of the contract was not to "capture" the shelving of the particular products, but rather the objective was "to preserve" the work of shelving any products which are drop shipped into the storage room or back room. In the circumstances of this case, the material factor is not the type of products involved, but rather the movement of said products from the storeroom to the shelves, rather than directly from the trucks to the shelves. A further argument is'made by the parties opposing the Respondent that the shelving of such products and the related services require special skills and that the clerks in the two stores involved herein do not possess such skills. This argument is not persuasive in view of the credited testimony of Carl Cohenour, secretary-treasurer of Respon- dent, that over 50 percent of the members of the Respondent Union work in stores where they service nonfood products including the same kind of products as are supplied by Associated. Sharp, the California division manager of Associated, testified that from July of 1967 until June of 1969 Associated supplied in Northern California 59 out of about 84 Purity stores with nonfood products without providing in-store services. It appears reasonable to assume that the employees of said stores must have shelved and performed the related services with respect to these nonfood products. It is concluded that the work of the in-store servicing of nonfood products is within the competence of store clerks. Sharp testified that the reason Associated uses the drop shipment method instead of the Regal method is that it also supplies food products and it is more economical to deliver the food and nonfood items at the same time. Associated argues in its brief that the economic waste that would be involved in making separate deliveries is an additional reason that the Section l(b)4 of the contract is violative of Section 8(e) of the Act. This argument is far from persuasive. The impact of the contract on Associated's method of operation is found to be an incidental result and not an objective of said contract. The Intervenor argues that a finding herein that the Section I (b)4 of the contract is not violative of Section 8(e) of the Act would have a disastrous impact upon the employment of its members. In its brief, the Intervenor states: The record shows that there are 600 or more employees of rack jobbers whose employment would be affected, at least if the rack job industry did not arrange their method of doing business to comply with the concept of "driver-salesman" as defined in the Clerks' contract. Indeed, the question may fairly be asked as to whether the rack jobbing industry could survive a rigid enforcement of the contract clause involved. Under these circumstances, the theory of work preservation had no application. The intent and effect of the Clerks' contract is to transfer on a wholesale basis jobs from one sector of the economy to another, not to protect against losses in employment. The above argument of the Intervenor considerably overstates the impact of a finding that, in the circumstances of this case, the Retail Clerks' contract did not violate Section 8(e) of the Act. The record discloses that Associated is the only rack jobber in the San Mateo area which uses the drop shipment method and the finding herein that the Retail Clerks' contract legally preserves the in-store work of shelving products which have been drop shipped would affect only the method used by Associated rather than the entire rack jobbing industry as claimed.15 In any event, the effect of the enforcement of the Retail Clerks' contract in accordance with a find herein that the objective of the contract was lawful in the circumstances of this case cannot be said to be more than an incidental result of such lawful objective. In summary, it is concluded that Respondent, by entering into its collective-bargaining agreement with the two stores involved herein, has not "sought to unlawfully control the employment practices of Associated in its business relationship with Marsh and Woodside," as contended by General Counsel, but rather it sought to protect "fairly claimable" jobs for the bargaining unit and, therefore, it has not violated Section 8(e) of the Act. Cala and Brentwood cases, supra. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSION OF LAW The allegations of the complaint that the Respondent has engaged in unfair labor practices within the meaning of Section 8(e) of the Act have not been sustained. RECOMMENDED ORDER The complaint should be, and hereby is, dismissed in its entirety. 15 Apparently this claim advanced by Associated is predicated on the proceeding. As set forth hereinabove, the only issue herein is the meaning limited meaning of "driver-salesman" which the Retail Clerks seek, but all of driver-salesman as applied to the drop shipment method of Associated. the limitations sought by the Retail Clerks are not an issue in this