Retail Store Employees, Local 876

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Store Employees, Local Union No. 876, Retail Clerks International Association, AFL-CIO and Allied Supermarkets, Inc.; Borman Food Stores, Inc.; Lindy's Distributors, Inc.; King Cole Supermarket No. 5, Inc.; Great Scott Supermarkets, Inc.; Chatham Supermarket, Inc.; Food Giant Stores, Inc.; Dexter-Davison Markets, Inc.; Hiller & Lutey, Inc., d/b/a Shopping Center Markets, and Vescio, Inc. and Independent Biscuit Company, Charging Party and Joint Council No. 43 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Intervenor . Canada Dry Corporation; Detroit Coca-Cola Bottling Company ; Feigenson Brothers Company; Pepsi-Cola Metropolitan Bottling Company, Inc.; Seven-Up Bottling Company of Detroit ; The Squirt-Detroit Bottling Co.; Vernors, Inc., and Wyandotte Coca Cola Bottling Co., Charging Parties and Teamsters Union Local No. 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Charging Party. Cases 7-CE-12(1) through 7-CE- 12(10), 7-CE- 13, 7-CE-14(1) through 7-CE-14(10), and 7-CE-15(l) through 7-CE-15(10) February 12, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 28, 1968, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that the Respondent Union and the Respondent Employers had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent Retail Clerks and Respondent Employers each filed a Motion for Summary Reversal, exceptions, and supporting brief.' Schulze and Burch Biscuit Co., amicus curiae , filed a brief seeking modification of the Trial Examiner's Decision and Recommended Order.' The American Research Merchandising Institute, Toiletry Merchandisers Association, and National Food Distributors Association, amici curiae, filed a brief in support of the Trial Examiner's Decision. Respondent Retail Clerks also filed an Answer Brief to General Counsel's exceptions, a Reply Brief to the brief of amicus Schulze and Burch, and a Memorandum Brief in answer to the brief of amici associations. 'Respondent Employers simply incorporated and adopted the motion, exceptions, and brief of the Respondent Retail Clerks 'On July 30, 1968, the Board denied Schulze and Burch's motion to 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 National Labor Relations 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 motions, exceptions, briefs, and the entire record in the case, and, finding merit in exceptions of Respondents, hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent herewith. Respondent Employers operate supermarket chains in southeast Michigan. Through an Association, they bargain with Retail Store Employees, Local Union No. 876, Retail Clerks International Association, AFL-CIO, (hereafter called "Clerks" or "Local 876"), as representative of certain store employees (hereafter called "clerks"). In 1967, Local 876 and the Association negotiated the following Article 8(c) into their collective-bargaining agreement: To preserve bargaining unit work, the Employer agrees that no supervisor, store manager, assistant store manager or other persons not covered by this Agreement, shall perform any work customarily performed by employees covered by this Agreement, except only in the event of an emergency not attributable to the Employer, and except only with respect to bread and potato chip vendors, with respect to their initial daily delivery only, and except only with respect to rack jobbers (defined to be those vendors, who, at the execution of this Agreement, service non-food specialty items), who shall be permitted to stock their customary respective merchandise. The Employer agrees that supervisors, store managers, assistant store managers or any nonmember of the bargaining unit employed by the Employer violating this understanding will be severely disciplined and after three (3) written violations will be demoted and made a member of the bargaining unit with no seniority. As a result of Article 8(c)'s enforcement, employees of suppliers named in the complaint were prevented from shelving and servicing certain brand-name cookies, crackers, spices, baby foods, and soft drinks in Respondent supermarkets. Since August 2, 1967, the employees in the Clerk's unit have performed such tasks on the specified brand items. The question here is whether Article 8(c), so applied,3 had an object of preserving work for clerk intervene and file exceptions, but permitted it to file an amicus brief In view of our dismissal of the complaint , this brief raises no unique issues which require discussion. 'There is clearly no merit to the General Counsel' s contention that Article 8(c) as written is itself violative of the Act. 174 NLRB No. 67 RETAIL STORE EMPLOYEES, LOCAL 876 employees of Respondent supermarkets or was "tactically calculated to satisfy union objectives elsewhere",' and thus violated Section 8(e) of the National Labor Relations Act, as amended. The Trial Examiner found that clerks had not generally performed the shelving and related services on the specified brand items carried by the named suppliers.' From this nonperformance on these brand-name products, the Trial Examiner reasoned that Clerks was using Article 8(c) to acquire work belonging to another unit, and that this was a secondary object. However, in our recent decisions in Brentwood Markets' and Cala Foods,' we rejected a definition of grocery store unit work by brand name or supplier, stating: "To define unit work narrowly according to the supplier or newness of the product would effectively deny the Clerks any remedy for piecemeal reduction and potential elimination of unit work opportunities."' In the circumstances of this case, too, the fact that clerks may not have performed the shelving tasks on these particular brands of cookies, crackers, spices, baby foods, and soft drinks is not dispositive. For the record shows that clerks have handled the in-store shelving and servicing tasks on the bulk of the grocery merchandise carried by Respondent supermarkets. The clerks have also worked on goods similar to those provided by the named suppliers and on some merchandise which differs only in brand name. In addition, the clerks have done a certain amount of replenishment of, and performed other services for, the specified brands.' Based on these work practices within the clerk unit, we cannot find the work on the specified brand-name products was so foreign to the unit as to negate the Clerks' assertion of a job protection object. There is, rather, ample support for Clerks' claim that the work of shelving and related tasks on cookies, crackers, spices, baby foods, and soft drinks, irrespective of brand, is a proper primary interest of the Clerks. To confine Clerks' area of legitimate job protection efforts to work in respect to the brands or suppliers handled before August 2, 1967, is both arbitrary and unrealistic. 10 In short, we can not outlaw primary work protection ' efforts by such a restrictive definition of unit work. The record otherwise indicates that it was Clerks' interest in preserving unit work opportunities, not outside tactical aims, which governed the application 'National Woodwork Manufacturers Association v N.L.R B, 386 U S 612,644 'Or at least the "original" shelving on these items. 'Retail Clerks' Union, Local No 648 (Brentwood Markets), 171 NLRB No 142 'Retail Clerks Union , Local 648 (Cala Foods), 172 NLRB No. 200 'Brentwood Markets, supra, fn 5 'The amount of this replenishment seemingly varied with , product and store However, we accept the Trial Examiner's conclusion that clerk replenishment generally constituted a small part of the total work on the specified brand merchandise. '"This does not mean that suppliers or brands are never relevant We hold only that work practices in the present context do not support the decisive significance given these factors by the Trial Examiner 425 of Article 8(c) to the goods of the named suppliers. Thus, the record shows that in the 1967 contract negotiations, Clerks' representatives asserted that outsiders were coming into the stores and doing what was regarded as clerks' work, that this practice represented an increasing threat to clerks' job opportunities, and that Article 8(c) was designed to end that job threat." The application of Article 8(c) to the work on the specified brand-name products implemented this stated work preservation object. But the Clerks in no way identified the suppliers or their merchandising practices as the target of Article 8(c)'s enforcement, and the record is devoid of any indication that the Clerks had a dispute or policy to pursue at the suppliers. While Respondent supermarkets -assigned the shelving work to clerks pursuant to Article 8(c), they continued to buy the brand merchandise from the suppliers. The Clerks' restriction on the supermarkets' work allocation thus appears to have had no strategic advantage or tactical aim outside the unit; it sought only to preserve work opportunities for the clerks. And any resultant impact on the operations of the suppliers cannot be said to be "an object" of the application of Article 8(c), but is, rather, only an incident to a lawful primary job protection effort. In sum, we find that General Counsel has not carried his burden of proving, by a preponderance of the evidence, that Respondent's conduct here violated Section 8(e) of the Act.' I Accordingly, we shall dismiss the complaint." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. "The fact that Article 8(c) made certain exemptions for emergencies, bread and potato chip vendors , and rack jobbers is not inconsistent with the objective of preserving the remaining shelving work for the employees in the unit Employer acquiescence in the fullest possible work claim is not a prerequisite to lawful primary action Nor, of course, is the failure to claim shelving work performed by employees outside its unit in the meat department and bakery concession fatal to Clerks' position herein ''This is so even accepting for decisional purposes the offer of proof made by General Counsel in the course of his examination of witness Jack Bushkin. "As in Brentwood and Cala Foods, our findings here are limited to the alleged secondary boycott implications of article 8(c) and its enforcement in respect to the brand merchandise of the named suppliers They are not diapositive of any contract interpretation or jurisdictional dispute issues Which may arise. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is a consolidated unfair labor practice case. Cases 7-CE-12(1) through 7-CE-12(10) originated on separate charges filed on August 22, 1967, by Independent Biscuit Company, a wholly owned subsidiary of Mickelberry Food Products, against each Respondent Employer mentioned in the 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD caption above. The order in which each Employer's name appears in the caption determines the subnumber assigned to it, so that, for example, Borman Food Stores, Inc., carries the number 7-CE-12(2) because it is enumerated as the second Employer in said caption. Each separate charge against said Employers ( 10 in all) also names as a Respondent Retail Store Employees, Local Union No. 876, Retail Clerks International Association, AFL-CIO Thus, Local 876 is also a Respondent in all 10 cases. Said charges were consolidated on October 16, 1967. A consolidated complaint, pursuant to Section 10(b) of the National Labor Relations Act (29 U.S.C. 160(b)) was issued, based on said charges, on October 16, 1967, against Local 876 and the 10 Respondent Employers, by the General Counsel of the National Labor Relations Board, through the Regional Director for the Seventh Region (Detroit, Michigan), on behalf of the Board. In substance the consolidated complaint, as finally amended, alleges that Local 876 and the 10 Respondent Employers have engaged in conduct contravening Section 8(e), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Pursuant to due notice, the consolidated complaint in Cases 7-CE-12(l) through 7-CE-12(10) came on to be heard on November 29 and 30 and December 1, 1967, at Detroit, Michigan. On December 1, 1967, that case was adjourned until January 29, 1968, for further hearing. During this recess additional charges were filed against Local 876 and the 10 Respondent Employers named in Cases 7-CE-12(1) through 7-CE-12(10), as more fully described in the ensuing paragraphs. On December 1, 1967, a single charge was filed against Local 876 by eight manufacturers and distributors of carbonated beverages. Case 7-CE-13. Their names are set forth in the caption above as Employer Charging Parties. On December 1, 1967, said 8 Employer Charging Parties also filed separate charges against the 10 Respondent Employers mentioned in the said caption. Cases 7-CE-14(1) through 7-CE-14(10). On December 6, 1967, Teamsters Union Local No. 337, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America filed separate charges against each of the 10 Respondent Employers named in the caption above, the subnumber of each charge against an Employer corresponding to the order in which such Employer's names appears in the caption above. Cases 7-CE-15(l) through 7-CE-15(10). Local 876 is named as a Respondent in each of said 10 separate charges. Cases 7-CE-13, 7-CE-14(l) through 7-CE-14(10), and 7-CE-15(l) through 7-CE-15(10), were consolidated on December 29, 1967. On that date a consolidated complaint based on said charges was issued against Local 876 and the 10 Respondent Employers by the General Counsel of the Board, through the Acting Regional Director for said Seventh Region. In substance said consolidated complaint alleges that Local 876 and the 10 Respondent Employers have engaged in conduct violating Section 8(e), and that such conduct affects commerce within the meaning of Section 2(6) and 7, of the Act. Respondents' have severally answered each denying that it has committed any unfair labor practices. 'By memo to me dated February 20, 1968, the Regional Attorney for the Board's Seventh Region transmitted to me the proof of service of the answer of Respondent Lindy's Distributors, Inc. This may be received into the record as TX Exh. 2 It is dated February 2, 1968. Thereafter, the General Counsel moved to consolidate for purposes of trial Cases 7-CE-12(1) through 7-CE-12(10), 7-CE-13, 7-CE-14(1) through 7-CE-14(10), and 7-CE-15(l) through 7-CE-15(10). My denial of such motion was reversed, and the motion was granted, by the Board on January 18, 1968, and consolidation was ordered. The hearing on the consolidated case was resumed at Detroit, Michigan, on January 29, 1968, and lasted until February 7, 1968, when it closed To recapitulate, the consolidated case at this resumed hearing consisted of two cases based on two consolidated complaints, ' i.e., 7-CE-12(1) through 7-CE-12(10), as one of those two cases, the other being 7-CE-13, 7-CE-14(l) through 7-CE-14(10), and 7-CE-15(l) through 7-CE-15(10). All parties were represented at and participated in the trial, and were granted full opportunity to adduce evidence, examine and cross-examine witnesses , submit briefs, and present oral argument. Briefs have been received from the General Counsel, the Charging Parties other than Independent Biscuit, Intervenor Joint Council 43 of the Teamsters Union, and Respondent Local Union No. 876. A motion to dismiss by Respondent Local 876 was denied at the hearing. Upon the entire record in this case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. AS TO JURISDICTION During the year ending December 31, 1966, each of the Respondent Employers derived gross revenues in an amount exceeding $1,000,000. During the same period each of said Employers purchased and received directly from points located outside the State of Michigan, goods and materials valued in excess of $50,000. Each Respondent Employer is a member of United Supermarket Association of Michigan, a membership association with its principal office in Detroit, Michigan. Among other things, said United Association engages in collective bargaining on behalf of its members with labor organizations, including Respondent Local No. 876. I find that Respondent Employers and United Association each is an Employer under Section 2(2), and each is engaged in commerce within the meaning of Section 2(6) and (7), of the Act. Each of the Employers who are Charging Parties in Case 7-CE-13 in 1967 had gross revenues exceeding $500,000, and during said period each received goods and materials valued in excess of $50,000 directly from points located outside the State of Michigan. I find that said Employers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction over the Respondents in this proceeding. Siemons Mailing Service, 122 NLRB 81, 84. II. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Local Union No. 876, Retail Clerks International Association, AFL-CIO, herein called Local 876, is a labor organization within the meaning of Section 2(5) and 8(e) of the Act. RETAIL STORE EMPLOYEES, LOCAL 876 427 III. THE UNFAIR LABOR PRACTICES The principal issue in this case involves the validity of Article 8(c) of the collective-bargaining contract between Respondent Employers and Respondent Local 876 to the extent that it affects the racking, by outside vendors, on the shelves of said Employers of crackers, cookies, baby foods, spices, and soft drinks and carbonated beverages carrying specified brand names . That this is the issue is disclosed by the complaints in the case and by the express assertion of counsel for the General Counsel that the shelving or racking of only these products was contested and that no other products were involved. During the trial I sustained the General Counsel's objection to evidence offered by Respondents regarding the shelving or racking of beer, wine, fruit juices and fruit punches other than the soft drinks and beverages enumerated in the complaint; coffee; tea, powders or mixes known as Kool-Aid, Tart, Tang, and Twist, dairy products; Sanka; and cocoa. It was my opinion, and still is, that these products are not only omitted from litigation by the complaint, but the counsel for the General Counsel at the trial emphatically and unequivocally insisted that the shelving or racking of these products was not being questioned in this case Nevertheless, the Board on an interlocutory appeal ruled that such evidence should be received "on the grounds that evidence offered appears relevant and material." The Motion to Correct Transcript of Respondent Local 876 is granted in the absence of opposition thereto. A. The General Counsel's Evidence Independent's products have never been racked or shelved by a store's employees before August 2, 1967. Independent's salesmen service a market from one to five times a week, depending on the volume of that store. The shelving or racking services take up as much as 70 percent of a salesman's time in city store routes and 30 percent in country store routes. Some of Independent's salesmen "very seldom" leave merchandise in any stores backroom. This occurs when the salesman misjudges a store's needs for the day on which a delivery is made. When an Independent salesman is on vacation, generally college students will substitute for the absent salesman; and when the salesman is ill, an Independent route supervisor usually "pulls [the salesman's] territory." At inventory time in the stores, which happens "occasionally," employees of some stores shelved or racked Independent's merchandise. In Chatham and Great Scott markets the employees rack and shelve the store's own brand of cookies known at Flavor-Kist. When Independent put on promotional displays at a point in the stores away from the shelves, the store's employees would replenish Independent's merchandise on the display stand. When this occurred, it took place usually on a weekend. However, the packages are placed originally on such displays by Independent's salesmen. Since Article 8(c) of the collective-bargaining contract between Local 876 and the Respondent Employers became effective on August 2, 1967, Independent's employees have been expressly prohibited by said Respondents from servicing in any manner the store shelves of Respondent Employers. 1. The nature of Independent Biscuit Company's delivery system prior to August 2, 1967 Independent sells to supermarkets cookies and crackers of a perishable nature. The brand names thereof are Shur-Good, Dutch Twin, Mama, Imperial, Zinsmaster, Old London, Burry, FFV, and 11 others. These are delivered in fragile packages, 90 percent of which are made of cellophane. This includes about 125 varieties. Generally a code is placed on the package or the case containing several packages to indicate the date when the products were baked. This code is used for purposes of rotation, i.e., the older packages are brought forward, and newer packages are placed behind, on a store's shelves by Independent's salesmen. This keeps the product fresh and prevents stale products from being sold. In addition to placing and rotating packages on a store's shelf, Independent' s salesmen (about 35 in 'all) arrange the shelf in such a manner as to present the best sales appeal to customers of the store . In this connection damaged goods are removed from the shelves. Independent's salesmen take orders from stores, but the delivery is made by another employee of Independent, a driver. Delivery is made in the store's aisle, but sometimes it is to a backroom. On the same day when a delivery is made, the salesman services a store by shelving or racking the products. If any packages are left after the shelves have been replenished, they are placed in a store's backroom. On his next return the salesman replenishes the shelves, first taking the backroom packages, if any. If packages are left over they are placed in the backroom. This procedure is repeated each time a salesman services a store. Rarely does an employee of the market rack the shelves with surplus packages of Independent's products left in a store' s backroom . In some instances 2. As to Borman Food Stores, Inc Borman's, which has been in business about 42 years, operates a chain of 89 supermarkets under the name of Food Fair Markets, Farmer Jack's Markets, and K-Mart Foods in Macomb, Oakland, and Wayne Counties, Michigan, and also in the Grand Rapids and Muskegon areas of Michigan . These stores are run within the territorial jurisdiction of Local 876. Among other products, Borman purchases cookies from Independent Biscuit Company, one of the Charging Parties. Early in 1967, the Respondent Employers and Local 876 negotiated for a collective-bargaining contract. Local 876 represents all of Borman's employees except those in the meat department. However, those in the bakery are in a separate unit. During such negotiations Local 876 complained that so-called outside vendors, who are in effect suppliers of merchandise to said Respondent Employers' stores, were taking away work from members of Local 876 employed by said Employers in that the outside vendors were performing work normally performed by such employees. After some discussion it was finally agreed that outside vendors would not be permitted to put or stack their merchandise (other than bread and potato chips) directly on the shelves in Respondent Employers' stores, and that such merchandise was to be stacked on such shelves by the particular employees at each of Respondent Employers' stores receiving a delivery thereof. This agreement was reduced to writing and was incorporated as Article 8(c) into a collective-bargaining contract executed by Local 876 and the Respondent Employers on or about August 2, 1967. It provides that: 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Article 8(c)]: To preserve bargaining unit work, the Employer agrees that no supervisor , store manager, assistant store manager or any other persons not covered by this Agreement, shall perform any work customarily performed by employees covered by this Agreement, except only in the event of an emergency not attributable to the Employer, and except only with respect to bread and potato chip vendors, with respect to their initial daily delivery only, and except only with respect to rack jobbers (defined to be those vendors who, at the execution of this Agreement, serviced non-food specialty items), who shall be permitted to stock their customary respective merchandise. The Employer agrees that supervisors , store managers, assistant store managers or any nonmember of the bargaining unit employed by the Employer violating this understanding will be severely disciplined and after three (3) written violations will be demoted and made a member of the bargaining unit with no seniority. As a result of this clause, i.e., Article 8(c), employees of outside vendors after August 2, 1967, were not permitted to stack or shelve products which they delivered to Respondent Employers' stores; instead, they have delivered to the stores' backroom, and employees of such stores, usually members of Local 876, then stocked the shelves from merchandise so stored in the backroom or storage area and stamped the packages with a code indicating the date. Prior to August 2, 1967, a different practice or arrangement existed at Borman' s. It is described immediately below as to cookies sold by Independent Biscuit Company, an outside vendor, and in subsequent paragraphs as to certain other merchandise sold by other outside vendors to Borman ' s. A prescribed area and a definite number of square feet therein on the shelves of each of Borman' s stores was allotted for the stacking thereon of cookies sold to Borman's by Independent Biscuit Company. Independent' s salesman obtained the order from Borman's. Delivery was then made of the cookies, which were prepacked before delivery to Borman's, by Independent's truckdriver. Thereafter, Independent's salesman stacked the packaged cookies on the allotted shelf space at Borman's. This method of delivering and stacking by Independent' s employees had continued for at least 18 years before August 2, 1967. Such deliveries and stacking of shelves were made by Independent's salesmen as often as necessary, usually two or three times a week, based on a store' s volume of business . As part of his duties, Independent's salesman checked the aisle and observed the amount and condition of cookies on the shelves he serviced on one day. Then on the next day he returned, stamped the packages with a code number indicating the date of baking, and then replenished the shelves. In so replenishing he moved the older cookies to the front and placed the most recent in back, a process called rotating. This assures that cookies bought by customers of Borman's are fresh. Any excess packages are stored by Independent' s salesman in Borman's backroom and, on the next trip to the store, he moves them to the shelves where he rotates them with the other packages, if any, remaining on the shelves. If the shelves became bare or empty before Independent's salesman visits a Borman store, and a customer asked a Borman employee for Independent's cookies, Borman' s employee would bring such merchandise to such customer from the stock stored in Borman' s backroom . "The frequency of that was very, very small." But "on a regular routine [Borman's] would depend on the so-called [Independent's] salesman to stock the merchandise" on the shelf. However, Borman's cashiers, who are in the unit, have always- checked out all merchandise , including Independent's. Borman's stores also have a meat department. The employees thereof are represented by Local 539, Amalgamated Meat Cutters' Union of North America in a different bargaining unit. Such employees, however, cut, wrap, package, and then shelve the packaged meat on Borman's meat counters Also the bakery in Borman's store is a concession operated by Awrey Bakeries. Although represented by Local 876, Awrey's employees are not employees of Borman's and are in a different bargaining- unit. Awrey's employees shelve Awrey's cookies except on the rare occasion when no employee of Awrey is available. In the latter case Borman's employees do the shelving. Article 8(c) above-mentioned is not enforced by the parties thereto as to Awrey's employees or Borman' s meat department employees as to the function of these employees in their own bargaining units. A similar practice was followed with respect to cookies sold to Borman's by the supplier of Flavor-Kist cookies, except that actually delivery to Borman's backroom was made by Borman's trucks. But Flavor-Kist's representatives would stock the merchandise on Borman's shelves Borman purchases cookies and crackers from National Biscuit Company, Sunshine Biscuit Company, and Hekman Biscuit Company Sunshine and Nabisco salesmen come three or four times a week to Borman stores. The method of delivering merchandise and placing it on Borman's shelves corresponds to that followed with respect to Independent Biscuit Company's products, including the building and stocking of special displays. For at least 19 years, Beech-Nut and Gerber's have sold baby foods to Borman's. It is delivered to Borman's at its own warehouse. Then Borman's brought it to the backroom of its stores from its warehouse, the amount for each store being determined and ordered by the salesman of Beech-Nut or Gerber's. Thereafter, such salesman price stamped and shelved his merchandise, and rotated it according to a code number he places on it. A salesman came to Borman's stores at least once , and, to some of its stores, twice a, week. Borman's employees replenish baby foods on its shelves only if the shelves were bare and a customer asked for it. The salesman also built and stocked special displays occasionally. Spices are purchased by Borman's from Frank Tea and Spice Company. These were distributed to Borman in the same manner as baby foods, described above. However, Frank's salesman called at Borman's stores but once a week, at which time he serviced the shelves of its stores. In the case of spices, the sheli;es consisted of racks owned by Frank's. And only pepper was kept in Borman's backrooms. This was used to replenish the racks at the store by the store's employees when necessary; i.e., when the racks were depleted. Soft drinks are brought to Borman's stores by salesmen of the suppliers. Such salesman came to the stores twice a week, i.e., on Monday and Friday. After shelving his product in the store the salesman left a reserve in the store's backroom. This reserve was used sometimes by the store's employees to replenish shelves. If this proved inadequate, Borman ' s called a salesman to make a special call with beverages, so that on these special trips the salesman replenished the shelves and also left some reserve stock in the backroom. Such salesman also put up RETAIL STORE EMPLOYEES , LOCAL 876 special displays occasionally at Borman's stores. Borman sold a soft drink known as "Taco," which it purchased from White Rock. This was shelved at Borman's stores exclusively by its employees. And its employees exclusively shelved the half gallon containers of "Dad's" root beer, salt, "Lawry's" seasonings, "Accent" seasoning, and "Adolph's" seasonings and tenderizer; but pepper was shelved by Borman's employees "very rarely." 3. As to Lindy' s Distributors, Inc. Lindy's buys cookies and crackers from Independent. The latter's salesmen generally call on Lindy's store twice a week to take orders and service the stores. After a salesman of Independent takes an order the products are delivered by Independent's delivery employee to Lindy's aisle. Lindy's has a policy of not keeping backroom stock of cookies and crackers. On the same day as the delivery Independent's salesman places the packages on Lindy's racks or shelves. Lindy's employees shelve and rack the overwhelming majority of items other than cookies and crackers. None of this racking or shelving of Independent's products is performed by Lindy's employees except in an emergency when the salesman did not show up because of illness. This occurred very rarely. This method of delivery and shelving by Independent continued for about 14 years prior to August 2, 1967. However, Lindy's cashiers handle all cookies as they came through the checkout lines at the registers. Since August 2, 1967, Independent's employees are forbidden by Lindy's to rack or shelve Independent's merchandise by reason of Article 8(c) of the collective-bargaining contract between Lindy's and Local 876. However, Independent still sells and delivers its products to Lindy's although the former has not since August 2, 1967, racked or shelved them. Lindy's purchases the cookies and crackers of Hekman Biscuit Company, Sunshine Biscuit Company, National Biscuit Company, and Swanson Cookie Company's "Archway" and "Stella D'Oro" lines. "Archway" and "Stella D'Oro" products are delivered directly to Lindy's shelves by Swanson's driver-salesmen, so that none of such merchandise is stored as a reserve supply in Lindy's backrooms. The cookies and crackers of said other suppliers were ordered from salesmen, who came twice a week, and were delivered by drivers of such suppliers. Within a few hours after delivery, the salesman who took the orders arrived at the store. There the salesman shelved the merchandise. Some backroom stock of these products was kept as a result of overordering, but none of it was shelved by Lindy's store employees. Baby foods were purchased from Beech-Nut and Gerber's, and spices from Frank Tea and Spice Company. Such products were ordered, delivered, and shelved in the same manner as cookies and crackers, i.e., a salesman who came once a week, ordered and shelved the products which were delivered by a driver of the particular supplier. The above salesmen who shelved their respective products also rotated, dusted, and cleaned the same, took away damaged merchandise, sometimes put up "point of purchase advertising material, and occasionally set up and maintained special displays. Although some backroom stock of baby foods and spices was kept, this was shelved by Lindy's employees only when the shelves became empty. Salt, "Lawry's" seasoning, "Accent" seasoning, "Adolph's" seasoning, and a soft drink known as "Meadowdale" sold by Abner Wolf have been shelved and 429 handled exclusively by Lindy's store employees; and such employees "almost exclusively" replenish shelves with backroom supplies of Coca-Cola. None of the above salt or seasoning is sold by Frank Tea and Spice Company. 4. As to Food Giant Stores, Inc. For about 25 or 26 years Food Giant has purchased products from Independent Biscuit Company. These are shelved in Food Giant Stores by Independent's salesmen who do so on an average of twice a week. On rare occasions Food Giant's employees performed such shelving of Independent's products by taking stock stored in the backroom and placing it on the store's shelves. This occurred on rare occasions when the shelves became bare or exceptionally low and it became necessary to replenish them before Independent's salesman arrived to attend to this work. An overwhelming majority of all other items in Food Giant's stores is shelved and racked by its own employees. However, this does not apply to bakery products sold by Awrey's or Sander's in Food Giant Stores, for Awrey's and Sander's employees shelve and rack their Employer's products. Sander's and Awrey's have a concession in Food Giant Stores which includes candy, ice cream, sweet goods, potato chips, bread products, and cookies. Nevertheless, Awrey's and Sander's employees are not permitted to shelve or rack any merchandise other than their own in Food Giant Stores. Food Giant's cashiers handle Independent's products as part of their checkout procedures. Since August 2, 1967, Independent still sells and delivers to Food Giant, but Independent's employees have not since then been permitted to shelve or rack its products because of Article 8(c) of the collective-bargaining contract between Local 876 and Respondent Employers. However, Awrey's and Sander's employees still rack their own merchandise, as they have in the past, notwithstanding said Article 8(c). Also, Food Giant's meat department employees continue to shelve the meats sold by Food Giant despite said Article 8(c). Respondent Great Scott's employees have always shelved cookies and crackers sold under its own label of Flavor-Kist. And Respondent Chatham's employees similarly have always shelved cookies and crackers sold under its own brand called Staff. Food Giant, a chain of 15 supermarkets in the Detroit area, received cookies and crackers from National Biscuit Company, "Archway" brand from Swanson's Cookie Company, Hekman Biscuit Company, and Stella D'Oro brand of cookies. These were delivered to Giant's stores once or twice a week by salesmen or driver-salesmen of the suppliers. These salesmen and driver-salesmen placed the merchandise on Giant's shelves, rotated it, price tagged it, and kept it fresh and neat appearing. Such salesmen and driver-salesmen performed similar functions in connection with special displays of such products. Employees of the stores sometimes replenished shelves with merchandise in the backroom; but this did not include "Stella D'Oro" or "Archway" brands because these were not kept in the backroom. Food Giant also handles the baby foods of Gerber, Beech-Nut, and Heinz. These were delivered to the backroom of Giant's stores from a warehouse Thereafter the salesman of the supplier came about twice a week and placed such merchandise on the store's shelves, bringing it out from the supply in the backroom. Such salesman also lined up the merchandise, rotated it, dusted and cleaned it, 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and removed damaged items. "Very seldom" did employees of the store place baby foods on the shelves; but this did occur when the shelves became empty. Spices of Frank Tea and Spice Company and Durkee's were delivered to Giant in the same manner as baby foods, i.e., from a warehouse. Then the supplier's salesman came the next day to the stores and placed this merchandise on the shelves of the stores. In addition, he rotated the spices and lined up and dusted the shelf. Generally, a supply of spices was not maintained in the backroom of the stores, but extra supplies, if any, were kept in the aisles adjoining the shelves holding such merchandise If the shelves became empty, a rare occurrence, an employee of the store replenished them from this supply in the aisles. Giant also buys soft drinks from the Charging Parties in Case 7-CE-13. These were delivered to Giant's stores by the suppliers. Then the driver-salesman of the supplier stocked Giant's shelves with such products. In some instances a backroom reserve was maintained in Giant's stores. When shelves became empty Giant's employees replenished them from this backroom reserve. Abner Wolf, a wholesale food distributer, supplies Food Giant with saltine cookies carrying the brand name of "Meadowdale" or "Camelot." These are delivered to Giant's backroom by Wolf's trucks. Thereafter, they are handled in the stores exclusively by Giant's store employees. This same procedure is followed as to these particular brands at the stores of Lindy's Distributors, Inc., where Abner Wolf also distributes them. At both Food Giant and Lindy's it was expected that the store employees would replenish store shelves with baby foods when such shelves became empty; but this was seldom done by such employees. When store employees performed this work they also level and face the baby foods on the shelves, and also stamp prices thereon This procedure was also followed by store employees as to spices, cookies, and crackers. However, the store employees exclusively serviced the shelves with salt. Giant and Lindy's employees also put up on the shelves, when they were empty, "Accent" and "Adolph" seasonings, and soft beverages, obtaining the same from reserves left in the store's backroom by the salesmen employed by such suppliers. However, Abner Wolf's private brand of beverages, marketed under the name of "Meadowdale," were handled entirely by the employees of the store These beverages were delivered by Wolf to the backroom of stores of Giant Lindy's did not carry "Meadowdale" beverages. 5. As to Great Scott Supermarkets, Inc. Great Scott purchases products from Independent Biscuit Company in the following manner or procedure. Independent's salesmen first took an order from the store. He returned to the store on the day when the merchandise was delivered and placed it on the shelf in the selling area. This latter function occurred between two and four times a week depending on the volume of a store and the flow of Independent's merchandise off the shelves. Reserve stock of Independent's products was left in the backroom of a store by Independent's employees to be used, if necessary, for replenishing the store's shelves by Great Scott's employees. This act of replenishing by Great Scott's employees occurred only, if at all, on weekends, when volume of sales was high Its frequency is not clear, as the testimony of Vice President Nathan Fink indicates (Tr. p. 258) that "it would occur on some weekends and on other weekends it wouldn't." But Great Scott's employees did not replenish during the week because Independent's salesmen serviced the store often enough to keep merchandise constantly on the shelves during this period - Great Scott's employees shelve the overwhelming majority of all products other than those of Independent and meat products. The meat department composes a separate bargaining unit, the employees of which are represented by the Meat Cutters Union. Since August 2, 1967, Great Scott has continued to handle Independent's products, but they are shelved by Great Scott's employees. Article 8(c), above-mentioned, is not being applied to employees in the meat department or the employees of Sander's, which has the bakery concession in Great Scott's stores. The employees of Sander's are also in a different bargaining unit.- Since August 2, however, Great Scott's employees will shelve Sander's products "upon customer demand " Great Scott also purchased cookies and crackers from National Biscuit Company, Sunshine Biscuit Company, Hekman Biscuit Company, Stella D'Oro, and Archway. The products of the latter two were delivered by a driver-salesman, who took them off his .truck; those of the others were sold by a salesman and delivered by the supplier's truckdriver. In the case of Stella D'Oro and Archway, the driver-salesman shelved his products at Great Scott's stores when he delivered them from his truck. In the case of the others, the salesman returned to the stores shortly after the delivery by truck and shelved his products. Such driver-salesmen or salesmen, as the case may be, called three times a week at the stores, where they also price s*amped, rotated, tagged, and dusted merchandise, and removed damaged products from the shelves They also built and maintained special displays of cookies and crackers at Great Scott's stores. In some Great Scott stores the salesman of cookies and crackers delivered and shelved products three times a week, but in the case of special displays he came every day to restock such displays. Although Great Scott maintained a backroom reserve of cookies and crackers, it did not do so with respect to those of Stella D'Oro and Archway. This backroom supply was used by the above-mentioned salesmen to replenish the shelves; but it was also used by Great Scott's employees for such purpose on weekends if the shelves became empty at that time. This involved about 5 percent. In such instances they dusted and levelled, but did not face, the merchandise. Great Scott also sold its own brand of saltines called "Bonnie." Such saltines were shelved and otherwise handled exclusively by its store employees. Baby foods sold in Great Scott stores are purchased by it from Gerber's and Heinz, both outside vendors. While the sale to Great Scott was made by a salesman of the outside vendor, the products were delivered usually, twice and sometimes three times a week to its stores from a war,,housc. Not long after such, delivery the salesman returngd,tp the store, where he personally put the baby food on ,the shelves in the selling area. At the, same time he also price tagged and rotated the merchandise and removed damaged items. Great Scott maintained some backroom stock of baby foods. This was moved from there to the shelves of the stores by the salesmen of Gerber's and Heinz. Occasionally, about 5 percent of the time, such replenishing of shelves was also made by store employees,- but only if the shelves became bare on a weekend Special RETAIL STORE EMPLOYEES, LOCAL 876 displays of baby foods were exhibited only for orange juice. These were set up and maintained by the salesmen of the outside vendors. Great Scott purchased spices from Frank Tea and Spice Company. Like baby foods, spices were delivered, usually once and sometimes twice a week, from a warehouse to the backroom in Great Scott's stores. Shortly after such delivery Frank's salesman arrived at the store, where he put the spices on the shelves While at the store the salesman also price tagged, stamped, cleaned, and rotated merchandise, and removed any damaged articles from the shelves. At no time did Great Scott's employees place any of Frank's spices on the shelves. However, such employees exclusively shelved salt, and "to some degree" also shelved seasonings called "Lawry's," "Accent," and "Adolph." Great Scott also sells "house brands" of soft beverage known as "Mavis" and "Dad's." They are handled and shelved exclusively by its store employees. 6. As to King Cole Supermarket No. 5, Inc. This Respondent, which operates two retail food stores in the Detroit, Michigan, area, purchases merchandise from Independent Biscuit Company. Independent's sales people call at these stores 1 day a week to write an order. Later the merchandise is delivered. The following week the salesman places this merchandise on King Cole's shelves in the selling area of the store In addition he takes an order. This routine is repeated each week. At no time does any employee of King Cole shelve any of Independent's products. However, in rare instances when shelves have been depleted of Independent's products, King Cole's employees would bring such products out if a customer requested the same and they gave it to the customer if it was available in the backroom. But King Cole's employees otherwise did not stock the shelf. However, Independent's employees "very seldom" left any extra stock in the backroom. King Cole's meat department employees are represented by a Meat Cutters' Union in a separate unit. And at one King Cole store, Awrey's operates the bakery concession with Awrey's own employees. Awrey's employees are included in a separate unit and are not covered by the contract between Local 876 and King Cole. A collective-bargaining contract containing the above-described Article 8(c) was executed on August 2, 1967. This clause forbids outside vendors, such as Independent Biscuit Company, from shelving their merchandise at King Cole's stores. Since August 2, 1967, Independent Biscuit Company's employees have not been permitted to place its products on King Cole's shelves. However, outside vendors supplying potato chips and breads, and outside vendors called "rack jobbers," have been allowed to use their own employees to shelve their own products on King Cole's shelves. King Cole's stores received cookies and crackers from Stella D'Oro, Swanson, and Archway. These were delivered to the stores by the supplier's drivel-salesman directly from the truck. No backroom reserve was kept of the products of these three vendors. Other outside suppliers of cookies and crackers divided such functions among salesmen who took orders and truckdrivers who delivered the merchandise so ordered. Crackers and cookies were delivered to the stores at least once and, to the busier stores, two or three times a week. But in all cases the salesman or driver-salesman priced, put up, rotated, dusted, and otherwise handled the products on 431 King Cole's shelves. They also removed damaged merchandise from the shelves. Cookies and crackers of other vendors were "very seldom" kept in the backroom of King Cole's stores. Its employees never shelved any of such backroom stock except on the rare occasion when the shelves were empty and a customer specifically requested such merchandise by name. Special displays of cookies and crackers were built, stocked, and serviced by the salesmen employed by the vendor running the display. King Cole sells Beech-Nut" and Gerber's baby foods. These are delivered to King Cole's backrooms from a warehouse of Abner Wolf, the distributor. However, such foods were then placed on King Cole's shelves in the selling portion of the stores by the baby foods salesman shortly after delivery had been made to the backroom. He also rotated, straightened, and dusted such merchandise. Such salesmen called at the stores once a week. Very rarely did outside vendors put up displays of baby foods in the stores. And "basically" the baby foods were stored on the shelves, so that not more than one or two cases remained in the backroom as a reserve. If shelves became vacant a store employee used this backroom supply to replenish them. King Cole purchases spices from Frank Tea and Spice Company. Like the baby foods, they are distributed to King Cole's backroom from a warehouse and then are priced, rotated, dusted, and placed on the shelves of the store by Frank's salesman shortly after delivery has been consummated to the backroom. Salesmen also removed damaged merchandise. Generally, King Cole kept no reserve of spices in the backroom. Special displays of spices were put up and serviced by such salesmen. King Cole's employees, exclusively shelve its purchases of salt, "Lawry's" seasoning, "Adolph's" meat tenderizer, and "Accent" seasoning, and also perform all functions related to shelving such products. However, these products are not supplied to King Cole by Frank Tea and Spice Company. 7. As to Allied Supermarkets, Inc. Allied Supermarkets, Inc., operates 92 supermarkets in the Detroit, Michigan, area. These are covered by the August 2, 1967, collective-bargaining contract between Local 876 and Respondent Employers. Allied has purchased biscuit products from Independent Biscuit Company for 20 or more years They have been placed on Allied's shelves by Independent 's salesmen who came to Allied stores at least once a week. In most cases Independent's employees placed Independent's merchandise on Allied's shelves in the selling area of the stores and did not place any excess stock in Allied's backroom. Meat department employees in Allied's stores are represented by the Meat Cutters Union in a separate unit. In some of Allied's stores Awrey Bakery operates the bakery concession. Awrey uses its own employees, who are in still another unit than Allied's employees other than meat department employees. Allied purchases cookies and crackers from National Biscuit Company, and Sunshine Biscuit Company, and Swanson's Cookie Company. Swanson distributes "Stella D'Oro" and "Archway" lines by having its driver-salesman deliver directly from Swanson's truck to Allied's stores. Said salesman shelves Swanson's products in the allocated selling area of Allied's stores. In the case of National and Sunshine, a salesman took the order 432 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD from, and a truckdriver delivered the merchandise to, Allied's stores. As soon as possible following such delivery the salesman came to Allied's stores, where he shelved said merchandise. Said driver-salesmen and salesmen, who came from one to three times a week, not only shelved their respective products but they also priced, aligned, and rotated the merchandise according to a code thereon, replenished the shelves with the product, and removed damaged and unsalable items from the shelves. They also put up and maintained point of purchase advertising material and devices as well as special displays. Allied keeps a backroom supply of cookies and crackers Salesmen of outside vendors moved 90 percent of this from the backroom to the store's shelves. Nevertheless, when a shelf became empty the store's employees replenished the shelves from this backroom stock. Such situation affected about 10 percent of the shelving done; but this happened only in the case of crackers and also one brand of cookies called "Oreo" made by Sunshine Biscuit Company, and then only in Allied's high volume stores. The extent of such replenishing by Allied's employees was "very little"; and, when it occurred, it usually took place on a weekend. Allied handles Clapp's, Gerber's, Heinz, and Beech-Nut baby foods.2 Salesmen of these suppliers took orders and, after the merchandise was delivered to Allied's backroom, shelved it (other than Clapp's) in the selling areas of the stores. Clapp's was shelved by Allied's employees. Such salesmen other than Clapp's also price tagged and rotated their products on the shelves. Store employees "very little" shelved these products other than Allied's own brand, "Food-Club." Its employees exclusively place on its shelves "Food Club" baby foods. Although special displays of baby foods were not common, said salesmen also set up and maintained them when they were used. Allied also sells Durkee and Spice Island spices. These are shelved by the salesmen of said suppliers, although they were delivered to Allied's backroom by Allied's truck from its warehouse. Such salesmen also price tagged such spices. Allied's store employees shelved these spices "very little," i.e., during Thanksgiving time they replenished shelves with poultry seasoning and similar spices. However, Allied's store employees have exclusively shelved "Arrow Brand" pepper, "Morton's" salt, "Diamond" salt, "Lawry's" seasonings, "Accent" seasonings, and "Adolph" meat tenderizer and seasonings, and have performed the related functions in connection therewith, such as rotating and pricing the merchandise. Since August 2, 1967, Independent still sells to Allied but Independent's employees have not been able to stack their Employer's products on Allied's shelves by reason of Article 8(c) mentioned above. However, even prior to August 2, 1967, Allied's own employees themselves exclusively put up on Allied's shelves cookies having the brand names of "Golden," "Cadbury," "Zion," "Mother's," and "Delicious." These brands, however, known as "warehouse items," were not brought to Allied's stores by outside vendors; rather, the supplier, or manufacturer, i.e., the outside vendor, delivered them directly to Allied's warehouses, whence they were delivered to Allied's stores by Allied's own truckdrivers in Allied's trucks. Nevertheless, Independent's products were always delivered directly to Allied's stores where they 'Allied also sells its own private brand of baby foods called "Food Club" This about 3 years ago displaced Clapp' s baby foods, so that Clapp' s for some time has not been carried by Allied were shelved by Independent's salesmen, and were never "warehouse items." 8. As to Vescio, Inc. Vescio, Inc., has 27 stores or supermarkets, 8 of which are covered by the collective-bargaining contract between Local 876 and the other Respondents. It has purchased products from Independent Biscuit Company for the last 3 years, which were delivered in the manner described immediately hereafter. First, Independent's salesman visits the store to take an order. Later, an Independent truck delivered the merchandise to the store. Not long after that Independent' s salesman returned to the store and placed the merchandise on Vescio's shelves in the selling area of the store. If, after the shelves were filled, surplus merchandise remained, it was placed in Vescio's backroom by Independent's salesman. This method of bringing Independent's products to Vescio's stores occurred two or three times a week, "depending on the volume of the store." Ordinarily Vescio's employees did not stock this merchandise on the shelves, but if necessary they would do so. This was "not the usual thing." Vescio's meat department employees are in another unit and are covered by a different collective-bargaining contract with the Meat Cutters Union. Since August 2, 1967, Vescio still buys from Independent, but this merchandise is stacked on the shelves only by Vescio's employees. Independent's employees are forbidden to do such work under Article 8(c) mentioned above. During the course of the negotiations in 1967 for a collective-bargaining contract with Local 876, the Union originally requested a clause that gave employees of Respondent Employers all the work of shelving the merchandise of outside vendors. In claiming this work, Local 876 expressed concern over a loss of jobs and job opportunities if outside persons, rather than those in the bargaining unit of Local 876, did the shelving of goods in the stores. Local 876 regarded all shelving of merchandise at the stores as within its exclusive province and wanted, once and for all, to stop persons outside the bargaining unit from performing this work. Vescio's employees prior to August 2, 1967, placed a great majority of products, other than Independent's, on the shelves in the selling area of Vescio's stores. Vescio purchases cookies and crackers from outside vendors besides Independent Biscuit Company, such as Hekman Biscuit Company, National Biscuit Company, Swanson Cookie Company, and Stella D'Oro. The salesmen or driver-salesmen of such other suppliers shelved such merchandise in Vescio's stores, performing in connection with such shelving work functions similar to those of Independent's salesmen. In such cases the store's employees replenished shelves with merchandise obtained from the backroom stock reserve except in a few stores which did not keep a backroom supply. Such shelving occurred when the shelves or racks became empty between visits of the salesman or driver-salesman. However, Vescio also handled other brands of cookies and crackers which it kept in its own warehouses. These were shelved in its stores by its own employees exclusively. The above-mentioned suppliers of cookies and crackers also built displays at Vescio stores. Salesmen of the suppliers built and stocked such displays. Vescio also sold Gerber and Heinz baby foods. These baby foods were first delivered to Vescio's warehouse by RETAIL STORE EMPLOYEES, LOCAL 876 Abner A. Wolf, a wholesaler of these items, and from there it was brought to the backrooms in Vescio's stores by Vescio's trucks It was customary to maintain a backroom reserve. Thereafter, Gerber's salesman shelved and rotated its merchandise at the stores and removed damaged and overage items. Such salesmen called at least once a week. Vescio's employees replenished the store's shelves if they became empty at any time. Baby food secondary displays were also put up at the stores by the salesmen, but this happened infrequently. At its stores Vescio also sold spices bought from Frank Tea and Spice Company and spices under the brand name of "Durkee." These were delivered to Vescio's warehouse by the supplier; and from there to the backroom of the stores of Vescio by the latter's trucks. Thereafter, the supplier's salesman placed this merchandise on the shelves of the stores by taking it from the backroom. However the employees of Vescio's stores replenished empty shelves between visits of the salesmen. This was rare. Such salesmen also built and stocked secondary or special displays Vescio also buys soft drinks from some of the Charging Parties in Case 7-CE-13. The manner of storing such merchandise in the backrooms and its being racked on the shelves of Vescio's stores has already been described elsewhere herein. It need not be repeated here except to say that evidence from Jack A. Perkins, an officer of Vescio, confirms on this issue that given by witnesses employed by the said Charging Parties Vescio carries salt, food seasonings known as "Accent" and "Lawry's," and "Adolph" meat tenderizer. This merchandise is placed on the shelves of its stores exclusively by its own employees. Since August 2, 1967, Article 8(c) has prevented the employees of suppliers to place on Vescio's shelves the cookies, crackers, and beverages of the Charging Parties in Case 7-CE-13, as well as the spices and baby foods mentioned herein. 9. As to Chatham Supermarket, Inc. Chatham Supermarket, Inc., operates 21 retail food stores in the Metropolitan Detroit, Michigan, area. All are covered by the collective-bargaining contract between Local 876 and the other Respondents. It has purchased biscuit products from Independent Biscuit Company for many years. Prior to August 2, 1967,,Chatham received merchandise from Independent in the manner described in the next paragraph. Independent' s salesman came in once a week to take an order. Then the goods were delivered by Independent's truckdriver. Later Independent' s salesman returned in the same week to place these products on the shelves allotted to Independent. Generally, no reserve supply was stocked in Chatham's backroom as the capacity of the shelf space assigned to Independent held sufficient volume for a week. However, Chatham's employees performed a "leveling" function, i.e , they moved Independent's products from the rear to the front of the shelf, when necessary' to make them more readily accessible to the store's customers. Meat department employees in Chatham's stores are in a separate bargaining unit and are represented by the Amalgamated Meat Cutters Chatham's bakery products are sold by concessionaires, Awrey's in some stores and Sander's in others. Employees in this department are employees of Awrey's or Sander's, are not employees of Chatham, and are in a different unit. 433 For the last 5 or 10 years Chatham has carried on its shelves its own private brand of cookies. At one time they were called "Dixie Belle," but currently they are "Staff." They are brought to Chatham's stores from one of its warehouses and are racked on Chatham' s shelves exclusively by its own employees who are in the bargaining unit represented by Local 876. In putting such private brands on the shelves, Chatham's employees perform the same functions as Independent's employees when the latter place Independent's cookies on Chatham's shelves Chatham's meat, however, is racked exclusively on the shelves by its meat department employees who are in a separate unit and are represented by a Meat Cutters' Union. Further, Chatham has granted a bakery concession to Awrey's and Sander's. Employees of these latter two concessionaires are not employees of Chatham, are in a separate unit, are covered by a different collective-bargaining contract, and exclusively rack the products of Awrey's and Sander's. Nevertheless, neither they nor Chatham's meat department employees rack any other merchandise on Chatham's shelves. Generally, Independent's products are not carried in Chatham's backroom as Independent' s salesman keeps the shelves filled with Independent's merchandise. Hence, there has been no replenishing of Chatham's shelves with Independent's goods by Chatham's employees. Replenishing means taking merchandise from a container and placing it on the shelf. Levelling or facing a shelf means arranging merchandise on a shelf, after it has been placed there, in a manner which will facilitate a customer's reaching it, and may include bringing products forward from rear to front and reducing four-high stacks to two-high. When products are brought forward on a shelf more of the same are placed in the rear. Independent's salesmen replenish and level Chatham's shelves with Independent's cookies and crackers. In addition they check codes on merchandise to be sure it is not "overage" and thus keep it fresh. Chatham, which operates retail food stores in the Detroit, Michigan, area, purchases cookies and crackers from Sunshine Biscuit Company, National Biscuit Company, Hekman Biscuit Company, and "Stella D'Oro" and "Archway" brands thereof from Swanson's Cookie Company. These were shelved in Chatham's stores by the route salesman or driver-salesman, who in general also left a small surplus stock in the backroom of such stores. However, "Archway" merchandise was "definitely not" stored in the backroom and "Stella D'Oro" was so stored only during the Christmas season. Shelves were generally replenished by such salesmen from the backroom stock, although the store's employees also performed this function when shelves became bare between visits of the salesmen . "Very little" was so shelved by the store's employees. Cookie and cracker salesmen called at Chatham's stores at least twice a week. Other duties of salesmen in connection with the shelves included pricing, rotating, levelling, dusting, and removing damaged merchandise. In addition to replenishing shelves on these occasions, salesmen also at times built and stocked cookie and cracker special displays at the end of aisles at Chatham's stores. Such displays were replenished solely by the salesmen . Salesmen also put up advertising material in connection with their products on the shelves or in special displays. Chatham purchases baby foods from Beech-Nut and Gerber. These are delivered to Chatham's backroom from 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a warehouse After such delivery, Beech-Nut's and Gerber's salesmen price tag and place the merchandise on Chatham's shelves. Such salesmen also rotate, according to a code thereon, the merchandise to assure freshness, and also level and dust it. Salesmen also occasionally put up and maintained displays of baby foods. Chatham at one time purchased "Durkee" brand spices from Frank Tea and Spice Company. They were distributed and shelved in the same manner as baby foods, i.e., delivery was, made to Chatham's stores from a warehouse and the Frank salesman thereafter shelved and serviced them at Chatham's stores. This meant that some stock was left in the backrooms of Chatham's stores. Soft drinks, however; were delivered to Chatham's stores by,the salesman or, in the case of Canada Dry, by a driver. Nevertheless, the merchandise in all instances was placed on Chatham's shelves by the salesman of the particular seller. This refers to the eight Charging Parties in Case 7-CE-13. Surplus stock was stored in the backroom by the salesmen, or by the truckdriver of Canada Dry. In the case of Canada Dry, its salesman serviced a Chatham store the day after Canada's truckdriver delivered the merchandise to Canada's backroom. In the case of the other seven Charging Parties, their salesmen shelved and serviced the stores at the time ,they delivered the merchandise. Canada's salesman called at Chatham's stores at least once a week and the salesmen of the other Charging Parties at least twice a week. At Chatham's larger volume stores such calls were made twice a week by Canada's salesmen and three or four times a week by the other salesmen mentioned in this paragraph. Chatham allowed soft drink suppliers to store merchandise in the backroom during the latter part, but not in the first part, of the week. On rare occasions Chatham's, when shelves became empty, employees replenished shelves with backroom stock of soft drinks. "Staff" is Chatham's private brand of soft drinks and cookies and crackers. "Staff" beverages are placed on shelves exclusively by Chatham's employees. This was also true of "Mavis," formerly also a private brand of Chatham's soft beverages Backroom stock of all the Employer Charging Parties is placed on shelves by Chatham's employees if shelves become empty. "Generally the shelves do not become bare between visits of the salesmen. Salt is shelved exclusively by Chatham's employees. The above describes procedures at the stores comprising Chatham's district on the West Side of Detroit. Practices at its East Side stores are delineated below. At Chatham's stores in its District 1, covering Detroit's East Side, cookie and cracker salesmen generally came to its stores three times, but to some twice, a week Generally, the salesman came shortly after such merchandise was delivered, and he then shelved it. This did not apply to "Stella D'Oro" and "Archway" cookies and crackers, for their driver-salesmen shelved such merchandise immediately upon delivering it themselves to Chatham's stores in all instances the employees of the outside vendors of cookies and crackers not only shelved such products but also rotated, dusted, relocated, and price tagged the same. They also put up special displays of their products in Chatham's stores and replenished such displays., Generally, no backroom stock was maintained in "Stella D'Oro" and "Archway" cookies and crackers; but some such reserve was kept for special occasions, such as a sale thereof or at Christmas time. But a backroom surplus was retained of all other cookies and crackers. Sometimes employees of the stores replenished shelves with backroom stock, but when this was done it occurred more often with crackers than with cookies, as crackers were a faster moving item. No difference exists between its West Side and its East Side districts in Chatham's method of obtaining and shelving (a) its baby foods, which are purchased from Gerber's and Beech-Nut, and (b), its spices, which are obtained from Frank Tea and Spice Company and Durkee. Spice racks in the stores are the property of the supplier and not of Chatham. Although some reserve of spices was kept in the backroom, it was not for the purpose of replenishing shelves. Special displays of spices, erected at Thanksgiving and Christmas time, were set up and maintained by salesmen of the supplier. Special displays of baby foods occurred only when the supplier promoted orange juice. These also were set up and maintained by the supplier's salesmen. Chatham's East Side stores buy soft drinks from the Charging Parties in 7-CE-13. The salesmen of such outside vendors call on the stores at least twice, and, in some cases, three and four times a week. Substantially, the same procedure is followed here as in Chatham's West Side stores in delivering and shelving soft drinks, including the slight difference in connection with Canada Dry's methods. However, a few stores occasionally have their employees replenish shelves with Coca-Cola and Pepsi-Cola over some weekends because the shelves become depleted. In addition, salesmen of the outside vendors performed such chores as pricing and rotating the product, removing damaged items, and setting up point of purchase advertising material. Chatham's East Side stores also sold a brand of soft drink known as "Staff," which was kept in Chatham's warehouse. It was delivered, stored in the backroom, shelved, and otherwise handled exclusively by its own employees at its stores. 10. As to Dexter-Davison Markets, Inc. Dexter-Davison has been in the retail grocery business for about 40 years. It has two stores, one in Detroit, and one in nearby Oak Park, and purchases products from Independent Biscuit Company, Hekman Biscuit Company, Sunshine Biscuit Company, and S & M Distributing Company. S & M distributes "Stella D'Oro" products. Also Dexter-Davison purchases spices under the brand names of Durkee's, Spice Islands, and Hudson's, and baby foods from Gerber's, Beech-Nut, and Heinz. Durkee's products are distributed by Thompson-Jackson Associates, food brokers, while McMahon and McDonald, food brokers, distribute Spice Island's products. In addition, Dexter-Davison purchases spices from Frank Tea and Spice Company. Each of the above enumerated suppliers of spices delivers and shelves its products at Dexter-Davison stores in substantially the same mode of operation. First the salesman takes an order which is later delivered in a day or two. The following week the salesman again comes to the store and places his particular products on the shelves allocated to his Employer, and again takes an order. Then he returns to place the spices on the shelves the next week after delivery has been made. This procedure is repeated once each week. Only a very small inventory of spices is kept in the backroom. Dexter-Davison's employees do not replenish its shelves with spices. However, if the shelves RETAIL STORE EMPLOYEES, LOCAL 876 are bare, and a customer requests such products, such employees will bring the same from the backroom. A slightly different procedure is followed by the baby food suppliers. In such instances a supply is left in the stockroom of Dexter-Davison's stores. This is used by the supplier's salesman to replenish the store's shelves when he calls at the store once a week. At this time he will, if the supply in the stockroom is low, write an order for more baby foods, and such foods will then be delivered the following day to the store's stockroom. This is repeated once each week. Dexter-Davison employees do not replenish shelves with baby foods. If the shelf is bare, however, such employees will replenish them. Suppliers of cookies and crackers generally pursue the following method of providing Dexter-Davison with their products. First a salesman takes an order, which is delivered to Dexter-Davison's backroom the next day. Shortly after delivery the salesman comes to the store where he places such products on the shelves. Then at the end of the week the salesman returns to replenish and straighten out shelves for the weekend. However, these suppliers carry no inventory of Stella D'Oro products and a very small inventory in Dexter-Davison's backroom or warehouse of the products of the other of the above-named suppliers. "Very little" replenishment of shelves with cookies and crackers is done by Dexter-Davison's own employees. This occurs only if a customer requests such products when a shelf is completely empty. This is an infrequent event. Since August 2, 1967, when Article 8(c) went into effect, only employees of Dexter-Davison now rack the shelves with the above products and salesmen of the suppliers have not been permitted to place the same on the shelves in the selling area of Dexter-Davison's stores. However, Dexter-Davison still buys these products from the same suppliers. Prior to August 2, 1967, Dexter-Davison's employees put up on shelves an overwhelming majority of the products other than those put up by outside vendors or suppliers. 11. As to Swanson Cookie Company Swanson sells "Archway" and "Home-Style" cookies through distributors. These are delivered by trucks to retail stores by a Swanson representative, accompanied by an employee of a distributor who is an independent contractor. Upon delivering, the representative and the distributor examine the shelves allotted to Swanson's products and rotate the merchandise for freshness, bringing the back products forward and filling the spaces so created in back with fresh merchandise. Dates of merchandise are determined by codes thereon. They will also remove damaged or "out-of-order" merchandise. Fresh merchandise is placed on the shelves by the distributor, obtaining the same from the truck. Such visits are made once or twice a week, according to the volume of a store. No stock whatsoever is stored in any store's backroom. Except in "isolated" cases (not over once or twice a month) of promotional campaigns, if shelves became bare of Swanson's product, it would be incumbent upon a store desiring immediate replenishment of shelves to call Swanson which, in turn, would request a distributor "to render the extra service." During campaigns extra stock was left for the store's employees to stack. Title to most of the shelves or racks is in Swanson and not the store. However, in some stores ownership of the racks is in the store. 435 The foregoing method of delivery was followed for about 15 years prior to August 2, 1967. Since then, because of Article 8(c), only employees of the stores have shelved Swanson's merchandise. However, the stores still buy Swanson's products. 12 As to, Stella D'Oro Biscuits For about 14 years, the biscuits and related products bearing the trade name of "Stella D'Oro" are distributed to the stores of Respondent Employers by S & M Biscuit Distributing Company. These are delivered once or twice a week by S & M's driver-salesmen, who are self-employed persons operating their own trucks and belong to a Teamsters Union. These driver-salesmen obtain their merchandise from S & M's warehouse. When they arrive at a store, they remove damaged products and rotate and replenish the racks or shelves. This occurs about once a week in most stores and twice a week in the bigger volume stores. But no merchandise is left in the backroom of any store, and no replenishment of shelves has been made by a store's employees. Since August 2, 1967, by reason of Article 8(c), only employees of the stores shelve S & M merchandise, although such stores still buy the same. 13. As to Durkee's Spices A brand of spices known as "Durkee's" is sold to the stores of some of Respondent Employers by Thompson-Jackson Associates, food brokers. The sale is made by Thompson-Jackson's salesmen. They are actually distributed to the backroom of such stores by Abner-Wolf, a division of Respondent Allied Supermarkets. Such salesmen first obtain orders, after which a delivery is made to the store's backroom by employees of Abner-Wolf. It is stocked in the backroom by a store's employees. During the following week the salesman visits a store and removes damaged goods from shelves, rotates merchandise on the shelves, and replenishes the shelves. This requires 2 or 3 hours at each store. On this occasion he also writes an order for the following week. This procedure is repeated at least once each week, and may occur twice a week in stores experiencing heavy sales. "Very rarely" employees of the stores will take Durkee's spices from the backroom and place them on the racks or shelves in the store's selling space. This occurs about twice a year: at Thanksgiving and Christmas, when sales are substantially above those during the remainder of the year. Since August 2, 1967, because of Article 8(c), only employees of the stores have racked Durkee's spices on the shelves of a store. 14. As to Frank Tea and Spice Company Frank sells spices to some of the Respondent Employers . Frank's salesmen take order for spices, price mark them , place spices on shelves of the stores buying them, remove damaged stock, rotate the merchandise on the shelves, and "keep [the stores] supplied with items as reasonably required ." This occurred at least once a week for over 20 years prior to August 2, 1967. Some of the larger markets are so served as much as three times a week during November and December. In replenishing shelves Frank's salesmen obtain their spices from the store's backroom where they are delivered 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by jobbers and unloaded by the store's employees prior to the arrival of the salesmen. Although some stores allocate space on their own shelves to Frank, in many others Frank provides its own racks. These are specially suited to the sales of Frank's products. In either situation Frank is limited as to the amount of space in a store. Although the shelves are stocked by Frank' s salesmen "on rare occasions" the store's employees may perform this function. About once a month Frank puts on a promotional display at the stores by means of a large advertising carton called a "dump." This dump is set up, stocked, and replenished by Frank's salesmen. When a shelf becomes empty it is not replenished until Frank's salesman arrives, and he then fills the shelves. The store's employees do not replenish the shelves even though merchandise may be available in the backroom. Since August 2, 1967, only store employees put up spices on the shelves and replenish them with spices by reason of Article 8(c), and Frank's employees are not permitted to do this. 15. As to baby foods sold by Beech-Nut Life Savers, Inc. Beech-Nut sells various products, including baby foods, to some of the Respondent Employers Its salesmen called at the stores of Respondent Employers "anywhere from once a month to twice a week," depending upon the volume of a store. On such occasions the salesman put the baby food on a store's shelves, filling them completely, obtaining necessary amounts from supplies stored in the backroom. They were delivered to the backroom by a jobber or the store itself. In addition he rotated items according to a prescribed schedule, removed unsalable merchandise, and took orders for delivery to be made before his next call. However, the store's employees also replenished shelves if they became empty. This was "infrequent." Occasionally Beech-Nut's salesmen set up displays in the stores and often placed the merchandise thereon. However, the store's employees sometimes put the baby food on such displays. r' Since August 2, 1967, Article 8(c) has prevented Beech-Nut's salesmen from stocking or replenishing the shelves of the stores. This work has been done since that date exclusively by the employees of the stores. 16. As to McMahon and McDonald, Inc. As food brokers, McMahon and McDonald handle the "Spice Island" line of spices and distribute the same to some of the Respondent Employers. Since 1954, a McMahon and McDonald salesman first calls on a'store and writes an order. These orders are filled from the central warehouse in Chicago and from there are shipped and delivered to the backrooms of the individual stores of the Respondent Employers involved. Thereafter, the salesman calls again, at which time he stamps, rotates, prices, and shelves the spices, obtaining supplies from the backroom, and removes damaged merchandise. He also takes an order on this latter occasion. This routine is repeated once every 2 weeks to once a month according to the volume of the store affected. Some of the stock is stored in the backroom of a store. The salesmen works this onto the shelves. However, "very little" of the backroom stock is placed on the shelves by the store's employees, i.e., when shelves became empty. McMahon and McDonald also ran promotional displays. Its salesmen placed spices thereon. If the display became empty it was not replenished by the store's employees. But such employees sometimes took down such displays; in doing this the merchandise was restored to the regular racks of the store. Occasionally the store's employees straightened out and dusted "Spice Island" merchandise Although the stores still buy these spices, since August 2, 1967, the salesmen have not been permitted to fill and replenish the shelves, and the store's employees now do that work. This is required by Article 8(c) which Respondent Local 876 and Respondent Employers are enforcing. However, employees of the stores have at all times, both before and after August 2, 1967, placed "Morton," "Diamond," and other brands of salt, as well as condiments like Ketchup, mustard, and dressings on the shelves of the stores. 17. As to Seven-Up Bottling Company of Detroit Seven-Up bottles and distributes soft drinks under, the brand names of "Seven-Up," "Like," and "Softee Root Beer." For at least 15 years it has sold one or more of these to all the Respondent Employers by delivering directly to their stores. A driver-salesman (or a "swing man," or extra route man, who relieves the regular driver-salesman or route man on his days off) calls at a store and estimates its needs until his next visit to that store. This may be once or twice a week, depending on a store's sales volume. In the majority of stores it was twice a week. While there he "merchandises the product," sees that it is properly positioned and priced, rotates the merchandise to keep the older bottles in front, and replenishes the shelves from stock in the backroom if there is any in the backroom. Pricing is by means of a bottle collar or tag. While there he will take an order and assemble empty bottles found in the backroom and which had been returned by the store's customers. He also displays advertising and other merchandising aids, such as point of purchase advertising, display pieces, pole stackards, balances, easels, and price cards Backroom stock is put on the shelves by Seven-Up's employees.' However, if the shelves need to be replenished between calls of Seven-Up's employees, it will be done by the store's employees. The backroom reserve in a majority of stores exceeds the amount put on shelves by the salesmen. By reason of Article 8(c), since August 2, 1967, Seven-Up's employees have not been permitted to rack the shelves in the stores of Respondent Employers; and this work has been done since that date by employees of the stores. Prior to and since August 2, 1967, the customer of a store returned empty bottles of Seven-Up's products to obtain the refund of a deposit he made for the bottles. The store's employees at all times received these empty bottles, refunded the deposit to the customer, accounted for the'bottles, and transported them to, and stored them in, the store's backroom. However, the employees of Seven-Up removed the empties from that backroom. Since August 2, 1967, some, but not all bottles, may be thrown away by the customer of a store, there being no refund due him because no deposit was collected therefor. 'In the case of displays, the entire supply of stock is on display and none remains in the backroom. In such situations store employees cannot replenish the display because no stock is available in the backroom for such purpose RETAIL STORE EMPLOYEES , LOCAL 876 18. As to Wyandotte Coca-Cola Bottling Co. Wyandotte Coca-Cola Bottling Co. sells "Coca-Cola," "Sprite," "Tab," and "Fresca" to some of the Respondent Employers. Since 1937 its salesmen first enter a store, check the stock and the display, rotate the stock, price the merchandise, check the backroom supply, and gather up empty bottles from the backroom. Then the shelves are filled from the backroom supply and some stock is left in the backroom. Sometimes the salesmen put up merchandising aids similar to those used by Seven-Up. They also placed stick ins or price collars on bottles, price strips for shelving, and a plastic rollout shelving called "mylar " Stock in the backroom is placed on the shelves by Wyandotte's salesman on each call. If shelves become empty between such calls, the store's employees replenish them from such backroom supply, and they also do the other work of salesmen at the store, such as pricing and rotating the merchandise A salesman's duties also include the building and maintaining of special displays apart from the shelves. Store employees sometimes replenished these also. The salesmen call twice a week at the stores to service them: once at the beginning of a week and once just before the weekend. The store's employees perform substantially the same functions regarding the return of Wyandotte's bottles and refunds therefor as they do concerning Seven-Up's bottles. It is not necessary, therefore, here to reiterate those duties Salesmen service all stores at least once a week. In high volume stores the salesman called twice a week, once on Monday or Tuesday and once on Thursday or Friday. Generally the shelves are not depleted between the first and second call, so that store employees do not replenish them between such calls. However, the shelves sometimes do become empty over the weekend; and, in such cases, the store employees refill the shelves with reserve merchandise from the backroom. Since August 2, 1967, Wyandotte's employees have not been permitted to place its products on the shelves of the stores because of Article 8(c). 19. As to Detroit Coca-Cola Bottling Company This company distributes in Wayne, Macomb, and part of Washtenaw Counties, Michigan, soft drinks known as "Coca-Cola," "Sprite," "Tab," "Fresco," and "Sunrise" flavors. Among others it serves nine of the Respondent Employers. The method of delivering and stocking shelves in the stores of Respondent Employers corresponds to that described more fully in connection with the operations of Wyandotte. It is therefore not narrated at this point. In addition to regular space allocated to it on a store's shelves, Detroit Coca-Cola also is given space in a store for secondary displays. Deliveries by Detroit's salesmen to the stores are made at least once a week, although they are made twice a week to the busier stores. In a few instances stores are serviced three times a week. Since 1940, on his calls the salesman replenishes the shelves and any secondary displays from stock in the store's backroom, and also replenishes the backroom reserve with merchandise from his truck. If the shelves and secondary displays became empty between the salesman's calls, they were replenished from stock in the backroom by employees of the store. Often the store employees replenished on weekends more than the 437 salesmen. However, "the majority" of the merchandise over a period of a week was racked by the salesman. Shortly before August 1967, Detroit Coca-Cola offered the stores the option of having the soft drinks delivered in nonreturnable bottles, i.e., bottles for which no deposit was required from the store's customer. In the case of empty bottles returned to a store for a refund of deposit, the employees of the store received and handled such bottles, paid the customer his refund therefor, and stacked them in the store's backroom. It was stipulated that this same practice prevails in all the stores of the Respondent Employers with regard to returnable bottles of soft drinks sold to them by the eight Charging Employers in Case 7-CE-13. Prior to August 2, 1967, Detroit's salesmen also at times placed promotional advertising of Detroit's on the shelves in the stores at the point where Detroit's products were placed. Since August 2, 1967, because of Article 8(c), neither this practice nor the work of placing products on the shelves of stores by Detroit's salesmen has been permitted by Respondents. Also, prior to August 2, 1967, Detroit's salesmen put up secondary displays or special displays in the stores and placed Detroit's merchandise therein Said Article 8(c) has also prevented them from performing this aspect of their duties. In fact, Article 8(c) makes it impossible for Detroit to use certain of its advertising material in the stores except through employees of the stores This material is called "carton stuffers," point-of-purchase "neck ringers," and "shelf-takers." See G.C. Exhs. 15, 16, and 18. 20. As to Pepsi-Cola Metropolitan Bottling Company, Inc. Pepsi-Cola Company sells soft drinks carrying the trade name of "Pepsi-Cola," "Diet Pepsi," "Teem," "Mountain Dew," "Patio Flavors," and "Nu-Grape." Among others, it distributes these products to the 10 Respondent Employers in this case. Its method of distributing substantially is the same as that used by Seven-Up Bottling Company of Detroit, more fully described above. However, Pepsi-Cola Company's salesmen call on the stores of Respondent Employers more frequently than Seven-Up's, averaging at least two visits a week. In delivering products to the stores, Pepsi-Cola Company's route salesmen use merchandising aids such as bottle collars or bottle ringers and carton stuffers as a regular part of their duties. Since August 2, 1967, Pepsi-Cola Company still sells to the Respondent Employers, but the actual placing of its merchandise on the shelves of the stores and the replenishment of said merchandise on such shelves is done by employees of the stores This is because Article 8(c), which is being enforced, prevents Pepsi-Cola Company's route salesmen from performing these functions. 21. As to Feigenson Brothers Company Feigenson sells soft drinks Among others, it distributes its products to all of the Respondent Employers. Its route salesmen normally call on these stores twice a week, i.e., on Mondays or Tuesdays and Thursdays or Fridays. This is in Detroit. Outside of Detroit, Feigenson has five distributors. First a salesman fills the store's shelves with merchandise obtained from Feigenson's stock in the backroom. Then he stores additional merchandise in the store's backroom, obtaining this from Feigenson's truck. Some stores did not permit use of the backroom to keep a 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reserve. Hence, none was left in these stores . In addition, he places shelf stuffers , carton stuffers , price tags, bottle ringers or stuffers, and (formerly) shelf takers on the merchandise or on the shelves, as the case may be, after obtaining from the store the price to be charged for the bottles. Salesmen also put up advertising material. In a few stores, where the store manager did not allow ringers on bottles, the salesman stamped on the price with materials provided by the store . The salesman also takes an order for the next delivery and removes empty bottles. Salesmen also rotated Feigenson' s products on the shelves, i.e., as the front of the shelf became empty, merchandise from the back thereof was put in such vacated space and the rear was replenished with more recent stock . They also set up and serviced secondary displays at the stores. When necessary, a store's employees replenished empty shelves from backroom stock. Since August 2, 1967, Feigenson' s salesmen have been prevented from placing any of its merchandise on the shelves of the stores because of Article 8(c). However, this does not affect delivery of, Feigenson's canned beverages, as these have always been delivered to the warehouse of the purchaser and not to the stores. Such warehouse deliveries were made only to Chatham and Borman. Employees of the stores shelved such warehouse products exclusively. 22. As to Vernor's, Inc. Vernor's sells its own ginger ale and also soft drinks known as "Royal Crown" products. Among others, it distributes these products to the stores of the Respondent Employers . At most stores Vernor's salesmen call twice a week; in other stores they deliver once a week. The procedure on delivering followed the ensuing routine. A salesman filled the shelves, rotating the merchandise, from stock he had on his prior trip left in the backroom . He stamped prices on this merchandise. Then he supplied the remaining stock to the backroom. Employees of the store, sometimes replenished shelves with this backroom reserve. Finally, he left the store taking with him empty bottles which had been , returned for a refund of deposit by the store . Salesmen also built and stocked secondary displays of Vernor's products. Salesmen place carton stuffers (see G .C. Exh. 21) on Vernor's merchandise placed on the shelves, but the store's employees performed this function on bottles left in the backroom Vernor' s salesmen also place special price sheets on bottles stocked in special displays (see G .C. Exh. 22), or in connection with merchandise on the shelves (see G.C. Exh. 23). They also put up posters in the stores in connection with Vernor's special displays. See G.C. Exh. 24. Since August 2, 1967, Article 8(c) has prevented employees of Vernor' s from shelving its products in the stores. 23. As to H. J. Heinz Company Among other things, Heinz is a producer and distributor of baby foods . It sells such foods to the stores of three of Respondent Employers . Heinz salesmen take an order from the store. It is then delivered to the Respondent Employer's warehouse by Heinz, and thence it is brought to the stores by such Respondent Employer's truck. But the Heinz salesman stocks this baby food on the shelves of the store , taking stock from the backroom for this purpose. In shelving the Heinz baby foods, its salesmen rotated the product after observing the coded date thereon. But shelving was performed by the store's employees on occasion. Heinz' salesmen visited the stores twice a week. If a store's shelves became empty before a salesman arrived, the store's employees replenished the shelves with Heinz merchandise from stock in the store backroom reserve. Heinz also manufactures a private brand of baby foods called "Staff" for Chatham Supermarket, Inc , one of the Employer Respondents in this case. "Staff" is put on Chatham's store shelves exclusively by its own employees. Since August 2, 1967, salesmen of Heinz have been unable to place its baby foods on the shelves of stores because of Article 8(c). 24. As to The Sq uirt-Detroit Bottling Co. This company, one of the Charging Parties in Case 7-CE-13, handles soft beverages known as "Squirt," "Hires" root beer, and "Nesbitt's" orange drinks. Among others, it sold these products to all the Respondent Employers except Vescio, Inc. Delivery to stores of said Employers is made through distributors who substantially perform the same functions as salesmen. A typical distributor himself calls on a store and then delivers Squirt's product to it. However, in Madison Heights and Garden City, both suburbs of Detroit, Michigan, Squirt's distributors hire their own salesmen who then deliver it to the stores . In either case the person delivering to a store, who calls on them once a week, stocks and replenishes the products on, its shelves, and removes empty bottles. He also rotates the products on the shelves so that old stock will be sold first , ascertaining the date or shelf life of a product from the code stamped thereon. See G.C. Exh. 27 for a coded bottle cap. In rare cases, a store is serviced twice a week. Squirt distributors and their salesmen also built displays during promotion periods and kept such displays stocked with merchandise during such periods. Price collars also are placed on the bottles by said distributors and their salesmen when stocking the shelves . Excess stock is kept in a store's backroom in those stores which permit use of the backroom for this purpose . If necessary, i.e., between visits of a distributor or salesman, a store's employees may remove merchandise from the backroom to replenish shelves if a store permits storing in the backroom . Such reserve stock was tagged by a price collar placed on the product by a distributor or a salesman. The foregoing practices continued for at least 13 years prior to August 2, 1967. Since that date Article 8(c) has prevented the distributors and salesmen from operating in such manner , so that only a store's employees stock and replenish the shelves. 25. As to Canada Dry Corporation Another Charging Party in Case 7-CE-13 is Canada Dry Corporation, which distributes ginger ale, club soda, quinine water, bitter lemon, and numerous other soft drinks under trade names such as "Canada Dry," "Wink," "Tahisian Treat," "Cactus Cooler," and "Rudy." All 10 Respondent Employers buy one or more of such products from Canada Dry. Deliveries are made in cans or bottles. Ninety-five percent of such deliveries are made directly to the stores, while five percent (all in cans) are made to the warehouse of Respondent Borman Food Stores, Inc. This 5 percent is shelved by Borman's RETAIL STORE EMPLOYEES, LOCAL 876 employees exclusively. Canada Dry does not use driver-salesmen, but it sells through salesmen. Its salesmen sell the products, which are later delivered to a store's backroom by Canada Dry's trucks. After products have been delivered to a store, its salesman stocks the shelves alloted to Canada Dry from its merchandise in the backroom. Included in this trip are such duties as taking orders, putting on bottle collars and stuffers, dusting, rotating, and removing damaged products. This occurs approximately twice a week either by the salesman himself or the salesman supplemented by another employee (in the merchandising department) in those instances where the salesman is unable to make a second I rip in a week. Such merchandising personnel perform the identical duties of a salesman at the stores except that they do not take buying orders for merchandise. In addition, a salesman must see that Canada Dry's best sellers in a store have the most prominent spot and the bulk of the area on the shelves. It may be described as shelf management or space management. This often is determined not only by the season of the year, when certain items sell faster than others, but by variations in neighborhoods Since August 2, 1967, Canada Dry employees have not been able to place its bottled products on the shelves of the stores of Respondent Employers. This is because all Respondents are enforcing Article 8(c). Accordingly, the employees of the stores have been exclusively shelving such products since that date. 26. As to Hiller & Lutey, Inc. d/b/a Shopping Center Markets, Inc Prior to August 2, 1967, Hiller purchased cookies and crackers from National Biscuit Company, Sunshine Biscuit Company, Hekman Biscuit Company, and the "Stella D'Oro" and "Archway" lines from Swanson's Cookie Company. Swanson's products were sold and delivered by its driver-salesman who also shelved them at the time of delivery. No reserve in Hiller's backroom was maintained of any of Swanson's products. All other cookies and crackers were ordered through a salesman of the supplier and delivered by such supplier's truck-driver. This occurred twice a week. Within an hour or two after delivery, such salesmen arrived at Hiller's stores and shelved such merchandise. All driver-salesmen and salesmen priced and dusted, as well as shelved, his merchandise, and also eliminated from the shelves any damaged stock. Except for Swanson's, the other suppliers of cookies and crackers left a backroom supply in Hiller's stores. Salesmen, who come twice a week, used this to replenish shelves, but between their calls this stock was also used by Hiller's employees to fill shelves which had become empty thereof, an infrequent event. Special displays of such products were set up and kept filled by the salesmen." Hiller buys baby foods from Beech-Nut and Berber's. These are delivered to Hiller's backroom ,f from a warehouse, but the supplier's salesman uses this backroom stock to fill the shelves in Hiller's stores himself. This salesman comes twice a week. Such salesman performed the same functions in connection with Hiller's stores as he did with the stores of the other Respondent Employers. Hence, these operations need not be here narrated again. However, Hiller did not maintain any backroom stock,of baby foods. 439 Hiller carried the spices of Durkee and also four or five varieties of Frank Tea and Spice Company. In the case of Frank's products, the spices were shelved by Hiller's employees exclusively. However, Durkee's salesmen, who came once a week, shelved its spices in Hiller's stores. No displays of spices were set up at Hiller's stores. In connection with baby foods and cookies, the salesmen of the suppliers put up point of purchase advertising material in Hiller's stores. Salt, "Accent" seasoning, "Lawry's" seasoning, and "Adolph's" seasoning and tenderizer are shelved, priced, and levelled exclusively by Hiller's store employees. These are not supplied by Frank or Durkee. Also, Hiller has had for 15 years a racking process known as "Foodomatic," which apparently eliminates shelving. Its relevance was not developed at the hearing. B. Evidence by Respondents None of the Respondent Employers offered any evidence, but Respondent Local 876 adduced evidence upon all issues Such evidence' is narrated in this subdivision of the Decision. 1: As to Vescio, Inc. Lillian Van Riper, employed by Vescio's and its predecessor for the last 12 years in capacities as cashier, clerk, head cashier, and produce manager, described her duties with respect to the stocking of merchandise on shelves. (A "clerk" is an employee of the store who, among other things, places merchandise on the shelves.) Her testimony follows. Originally, a "drop" shipment of cookies or crackers first came to the store. Then the clerks exclusively stocked "all of them " In addition, the clerks price stamped, levelled, and rotated such merchandise, including the products of National Biscuit Company, Sunshine Biscuit Company, Hekman Biscuit Company, and Abner Wolf. Clerks also "placed" advertising material relating to such cookies and crackers "a great many times." However, Swanson's Cookie Company "Archway" products were exclusively shelved by Swanson's salesmen. But about 7 or 8 years ago this system changed. A salesman of the supplier first obtained an order, following which the supplier's truck brought the items ordered to the store. Then the salesman "would follow that in and stock the shelves" himself. However, clerks stamped on any price changes arising during the salesman's absence, and such practice by the clerks of changing prices extended to merchandise stocked in special displays of the supplier. And the clerks still continued to level or face the merchandise if necessary between visits of the salesman. Originally baby foods were shelved in the same manner as cookies and crackers originally were -stocked. These baby foods were drop shipped by Heinz, Gerber's, and Beech-Nut. However, about 4 or 5 years ago this practice changed. The supplier's salesman first took an order, after which Abner Wolf, the wholesaler, delivered the merchandise to Vescio's backroom. Then the salesman put up the merchandise on the shelves. Thereafter, the clerks levelled, rotated, and dusted such products, and infrequently replenished the shelves Similarly the original shelving of spices, those of Frank, Durkee, and Lawry, corresponded to the original shelving of cookies, crackers, and baby foods. But this system also changed, so that salesmen of the suppliers stocked the shelves of Vescio's after the spices were delivered by 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Abner Wolf. Nevertheless, Vescio's clerks stocked such shelves between visits of the salesmen when necessary. Spices are placed on racks owned by Frank or Durkee. Soft drinks were delivered by the supplier's driver-salesman, who placed them on the shelves and left a reserve in Vescio's backroom. But clerks received empty bottles from customers, returning these to cases in the backroom, and also replenished the shelves when required. Empties were carried to the truck by the driver-salesman. However, Canada Dry products and Feigenson's throw away bottles and cans were "always put up by the clerks." Feigenson's regular bottles were shelved by its driver-salesmen, but clerks replenished such shelves from a backroom supply also left by said driver-salesmen until about 18 months ago; since then the clerks have exclusively stocked Vescio's shelves with such regular bottles. Some brands of soft drinks, including "Meadowdale" and other lines of Abner Wolf, have always been exclusively placed on the shelves and rotated by Vescio's clerks, who obtained the same from the backroom stock surplus; such clerks also generally put up displays in connection with such brands, although the driver-salesmen did this "if they had time." Another employee of Vescio's and its predecessor, Mrs. Bernice Kemner, has worked for them as a cashier for the last 11 years. During this period her duties included stocking the shelves. When she began her employment, the clerks exclusively put up cookies, crackers, spices, and baby foods on the shelves, and rotated, levelled, faced, and priced such merchandise They also put up advertising material on or near the shelves and filled displays with merchandise. About 8 years ago a change occurred as to cookies and crackers. First cookies and crackers were delivered and shortly thereafter the supplier's salesman placed them on the shelves. But the clerks, levelled, straightened, and rotated the merchandise, and, if the prices changed, they also stamped on the new prices. In addition, the clerks replenished displays when they became depleted. A similar change as to baby foods and spices took place about 5 years ago. However, the clerks did very little shelving because a backroom reserve was not usually maintained But clerks did straighten, level, rotate, and reprice baby foods put up on the shelves by the salesmen. Certain brands of cookies and crackers have always been shelved exclusively by the clerks, who also dusted, rotated, priced, levelled or faced, and straightened them. These are "Food Club," "Crest" oyster crackers, and Abner Wolf's "Zion" fig bars. Viola M Widmayer, another employee of Vescio's and its predecessor, who has been employed by them for 11 years as a clerk-cashier, confirmed the above testimony of Bernice Kemner. In addition, she mentioned that Vescio's clerks also at all times exclusively shelved cookies and crackers bearing the trade name of "Fireside" and "Flavor-Kist," whereas the salesman exclusively shelved Swanson's "Archway" brand of cookies and crackers. 2. As to Borman Food Stores, Inc. David Birchett, an employee at a Borman store for 2 years testified as follows- Although he worked for 2 or 3 months in bagging orders, Birchett has since then been assigned to soft drinks. His task is to stamp and shelve such products, whether they were canned or bottled, obtaining such merchandise from the backroom where it is stored. However, "sometimes" the Coca-Cola, Feigenson, Pepsi, Seven-Up, Squirt, and Vernor drivers filled the shelves themselves with those drinks and left the remainder in the backroom Birchett "worked up" this backroom reserve to the shelves and thus replenished the shelves daily. Another Borman employee who testified for Respondent Local 876 is Duane Houck, now a business agent and organizer for said Local. Houck started in 1949 with Borman as a stock boy. Leaving this Employer in 1951, Houck returned later but was not thereafter employed as a stockboy He quit Borman in 1964. In 1949 and 1950, Houck took cookies and crackers from a supply in the rear of the store and racked them on the shelf in Borman's store. This occurred at least three times a week He also levelled such merchandise every day. In addition he priced and repriced some, but not all, thereof as "a great many" came prepriced to the rear room. Finally, he also set up displays of this merchandise at the end of the aisle, and also put up advertising material "around the sales area" of cookies and crackers. Thomas Wayne Bickford, a high school student, has been employed at Farmer Jack's (a Borman store) since November 10, 1966, as a stockboy This is a Borman store. Among other things, he worked the cookie, cracker, baby foods, and soft drink aisles. He placed nearly all cookies and crackers on the shelves. However, "Stella D'Oro" and "Archway" products were shelved by the salesman, but not on the regular cookie shelf. Archway and Stella D'Oro were placed in or at the end of an aisle as displays. Moreover, National and Independent salesmen did not shelve such merchandise; Bickford and the stockboys did this. Those cookies and crackers which he shelved Bickford obtained from the stockroom in the rear of the store. Among other duties, Bickford rotated, levelled, priced (except prepriced items, such as "Shur-Good" and "Dare"), and repriced cookies and crackers. He also built displays and put up advertising material of such merchandise. Bickford also worked on baby foods for a week or a week and a half. He also shelved this merchandise. And he worked on soft drinks for a while, stocking the shelves with such soft drinks obtained from the backroom. In fact all stockboys exclusively shelved and priced such soft drinks. At no time did the driver-salesmen of the suppliers put soft drinks on the shelves; such employees left merchandise in the backroom or in the aisles If advertising material came with soft drinks, Bickford's superiors asked the stockboys not to use it. Another stockboy of Farmer Jack's is John Whitney, also a high school student. He and the other stockboys exclusively stocked, priced, levelled, and replenished shelves with beer, wine, and soft drinks, such as Tico, Canada Dry, Coca-Cola, Feigenson, Pepsi-Cola, Seven-Up, Squirt, and Vernor's. Tico was obtained from the backroom; the others from the aisle, if any was left there by the driver-salesman, or from the backroom. If soft drinks came accompanied with advertising material, Whitney discarded such material, without using it, on instructions of his superiors. Maury,Gordon, who has been employed by Borman since 1931, is now its buyer and merchandiser. His testimony follows. Borman had warehoused, i e , had its purchases delivered to its warehouse, crackers and cookies under the brand names of "Flavor-Kist," "Zion," "Silvertown," and "Dutch Maid." Except for "Flavor-Kist," these are handled and shelved exclusively by clerks in Borman's stores. "Dare" merchandise, which is sold by Independent, is not warehoused but is delivered RETAIL STORE EMPLOYEES, LOCAL 876 to and shelved at Borman's stores by Independent's salesmen. 3. As to Allied Supermarkets, Inc. Gary D. Campbell, a business agent and organizer for 'Respondent Local 876, worked for Wrigley's Supermarkets, a predecessor of Allied, from 1949 to 1954. For the last 4 years thereof he worked as a stockboy or clerk, i.e., he serviced shelves in the selling areas with merchandise. His duties required him to fill the shelves with cookies and crackers, pricing, repricing, rotating, and levelling such merchandise when necessary. Such filling occurred once or twice, but it could be as frequent as four times a week. Nevertheless, he did not at any time place "Stella D'Oro" or "Archway" products on the shelves, and sometimes the salesman serviced the shelves for National Biscuit. At times Campbell also built displays of cookies and crackers With respect to spices, the same procedure was followed as with cookies and crackers other than those of National Biscuit, "Stella D'Oro," and "Archway." But as to the spices of Durkee's and Frank' s, the salesman serviced the shelves 10 percent and the clerks 90 percent of the time. On the other hand the clerks exclusively shelved pepper and performed all functions pertaining to such work. As to soft drinks, the clerks collected and assembled empty bottles and then the supplier's truckdriver removed them from the backroom. The truckdriver filled shelves with his merchandise, and left a backroom reserve. But the clerks replenished shelves and displays of drink which were set up by the supplier's driver-salesman Clerks filled shelves twice as often as the driver- salesman. David James has been employed by Allied for a little over 16 years, and as a stock clerk since about 1952 or 1953. His description of practices follows. In 1952 store clerks filled the shelves with cookies and crackers 50 percent of the time, the salesman performing the other 50 percent. Backroom stock was used for this purpose. Clerks also daily levelled cookies and crackers on the shelves, and they also tagged, priced, and repriced much of said merchandise. Pricing of Independent's merchandise was rare as it was delivered prepriced. In addition, the clerks set up display signs for cookies and crackers. Beginning in 1955 the salesmen of the suppliers of cookies and crackers "would be doing more and more work putting up the displays, filling the shelves, coming in more often and filling them," and the clerks "were more or less just filling in the holes on the weekends " Such filling in the holes, i.e., replenishing shelves, by the clerks "slowed down" because "more salesmen [came] in." And for a while clerks continued to price, reprice, and level cookies and crackers, and also built and maintained displays of such products. However, "in recent years" the salesmen have built the displays, so that the clerks were limited to replenishing them when empty. Originally the clerks put up all soft drinks on the shelves from stock left in the backroom of the store by the vendors. Later on, about 1955 or 1957, the driver-salesmen of the vendor priced, stamped, and, put such drinks on the shelves. However, stock was also left in the backroom by such driver-salesmen. Clerks placed this backroor stock on the shelves, but "not as much as we were doing" before. One of Chatham' s trainees for the position of store manager is Joseph P. Collier. Previously he had been employed over 20 years by Allied Supermarkets, Inc., and 441 its predecessor. His account of pertinent practices at Allied's stores follows. While Collier worked at Allied, it handled the soft drinks of Canada Dry, Coca-Cola, Feigenson, Pepsi-Cola, Seven-Up, Squirt, and Vernor's, as well as its own private brands labelled "Meadowdale" and "Mavis." Its clerks exclusively handled and shelved "Meadowdale," "Mavis," and "Dad's" root beer, and performed all functions relating to such shelving. All the other soft drinks mentioned in the preceding paragraph were delivered and shelved by driver-salesmen of the particular supplier. They also priced such merchandise. A backroom reserve was also kept of fast moving items like Coca-Cola, Pepsi-Cola, Vernor's, and Feigenson, and also, at Christmas time, of Seven-Up, Canada Dry, and Squirt. Both salesmen and Allied's clerks used this backroom stock to replenish shelves, but when clerks performed this task it usually, but not always, happened on weekends. Approximately 50 percent of such soft drinks, but, in the case of Pepsi-Cola and Coca-Cola, about 75 percent, was shelved by the clerks. 4. As to Great Scott Supermarkets, Inc. Procedures followed at Great Scott were described by James Karosa, employed by it as a stockboy. After a salesman took an order for cookies and crackers, the truckdriver of the supplier delivered the merchandise to the backroom of the stores. Then Great Scott's stockboys aided the salesmen who "worked" it on to the shelves :n the selling area of the store. In addition the stockboys priced, rotated, and levelled cookies and crackers on the shelves, and replenished the shelves with such merchandise. As to soft drinks, the supplier's driver-salesman stocked the shelves with his product, leaving a reserve in the backroom of the stores. This reserve was used by the stockboys to replenish the shelves. But the stockboys exclusively filled and replenished the shelves with "Mavis," a soft drink stored in Great Scott's warehouses. Another witness regarding procedures at Great Scott is Edward Pearson, one of its district supervisors. He oversees 16 stores as such. He testified in substance as follows. Prior to August, 1967, Great Scott handled soft drinks known as "Mavis" canned pop and "Dad's" root beer, which were delivered to its stores from its warehouse in its own trucks. Then its store employees, known as clerks, exclusively filled the shelves, and kept surplus stock in the backroom, of the stores. As to Canada Dry, Coca-Cola, Feigenson, Seven-Up, Squirt, and Vernor's soft drinks a different arrangement prevailed. In such instances, the supplier's driver-salesman filled the shelves, left some surplus in the backroom of the stores, and took away empty bottles. But the clerks in the stores used this reserve to replenish the shelves between visits of the driver-salesman. These visits occurred two or three times a week, depending on the store's volume. About 65 percent of the stock on the shelves was placed there by clerks and 35 percent by the driver-salesmen. 5. As to Chatham Supermarket, Inc. One of Chatham's stockboys is Harvey Freedman, who also attends Cooley High School. Freedman was hired about a year and a half before he testified on February 5, 1968. An abridgment of his testimony follows. Prior to August 2, 1967, Chatham handled its own brand of cookies and crackers called "Staff." These were shelved exclusively by Chatham's clerks. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the other hand, the products of all other biscuit companies, except "Stella D'Oro" and "Archway," were delivered to Chatham's backroom by drivers of the suppliers and later were shelved by the salesmen of the suppliers . And the clerks also shelved them , using the backroom stock, but only "when we were told." Thus, the clerks replenished the shelves . However "that was usually every night." "Stella D'Oro" and "Archway" products were not shelved by clerks but, rather, by employees of the supplier thereof, Swanson's Cookie Company. In shelving the above products of suppliers other than Swanson's , Chatham's clerks rendered the following services: they priced, repriced, and levelled the merchandise , in addition to shelving and replenishing. Chatham's clerks also exclusively shelved its private brand of soft drinks sold under the trade name of "Staff." Chatham also carried the soft drinks of Canada Dry, Coca-Cola, Feigenson Brothers , Pepsi-Cola, Seven-Up, Squirt, and Vernor's. The driver of such suppliers, who came twice a week, filled Chatham's shelves with such merchandise on his calls to the store; but also left stock in the backroom . Some of this back stock was placed on the shelves by these drivers. Between deliveries the clerks replenished Chatham's shelves from this backroom supply. Generally, the clerks put up on the shelves twice as much of these soft drinks as the drivers of the suppliers. Another Cooley High School student working for Chatham as a stockboy is David Koski. He was hired about August 1966. Koski's testimony corroborates that of Harvey Freedman except that Koski did not reprice any cookies or crackers. Still another witness employed by Chatham is Augustine Migliori, at present head dairy, but a grocery clerk for 5 years before that. A summary of his testimony regarding practices at Chatham is set forth at this point. He-, too, corroborated Harvey Freeman ' s account of said practices relating to cookies and crackers as narrated above. In addition , he recounted the procedures regarding baby foods and soft drinks at Chatham. According to Migliori, baby foods may be classified in two categories: those sold under the name of "Swift" as one group, and those of Gerber's, Heinz, and Beech-Nut as a second group. "Swift' s" brand came from Chatham's warehouse and was shelved exclusively by Chatham's clerks. But those in the second group were usually shelved by the supplier' s salesmen . They were shelved by Chatham's clerks only "towards the weekend." Continuing, Migliori observed that Chatham sold its own "Mavis" and "Staff" brands of soft drinks which it first receives at its warehouses. Thereafter they were shelved at its stores exclusively by its clerks. A similar practice was pursued as to Feigenson 's canned soft drinks, since they came from Chatham's warehouse. On the other hand, the remaining soft drinks were shelved, and the shelves were replenished, by driver-salesmen employees of the suppliers , but the shelves were also replenished some of the time by Chatham's clerks from backroom stocks left by the truckdrivers. Drinks in this latter group included the products of Canada Dry, Coca-Cola, Pepsi-Cola, Seven-Up, Squirt, and Vernor's. However, Canada Dry's truckdrivers did not shelve its products but its salesmen did. But , since such salesmen came but once a week or once in 2 weeks and sometimes but once a month, Chatham's clerks shelved Canada Dry's merchandise "most of the time." He estimated that the clerks shelved 95 percent of all soft drinks carried by Chatham. 6. As to Pepsi-Cola Metropolitan Bottling Company, Inc. Roscoe Wayne McGehee, a" business representative of Local 876, was employed as a driver-salesman by Pepsi-Cola in the summer months of 1956. This job entailed the delivering of Pepsi-Cola's soft drinks to the stores of some Respondent Employers. His method of operating involved the placing of merchandise in the backroom of the stores and picking up empty bottles At no time did he place merchandise on shelves or replenish such shelves at the stores IV. CONCLUDING FINDINGS AND DISCUSSION A. As to Cookies and Crackers For many years Respondent Employers (herein called the Supermarkets) have purchased cookies and crackers from various suppliers. In the early days such merchandise was delivered unpackaged and, in such condition, was placed on the shelves of supermarkets by clerks of such stores. But at least since 1945, these products have been delivered as prepackaged items It is such packaged merchandise which is involved in this case. 1. The products of S & M and Swanson's "Stella D'Oro" brand of cookies and crackers have been distributed to the stores by S & M Biscuit Distributing Company, and the "Archway" line by Swanson's Cookie Company. Both "Stella D'Oro" and "Archway" products have been so distributed by the supplier directly to the supermarkets by a driver-salesman employee of the supplier or outside vendor. Upon arriving at a store such driver-salesman took an order and immediately filled it from merchandise on his truck. Thereupon, he placed the merchandise on the shelves, and, in connection therewith, performed duties related thereto, including ' pricing , rotating , levelling , rearranging, and removing damaged or unsalable stock. After completing the above-described functions the supplier's driver-salesman left the store without leaving any reserve supply of the merchandise in the backroom of or elsewhere in the store. Hence, I find that no stock was available in the store to replenish the shelves by clerks of the store. Further, I find that such clerks did not place "Stella D'Oro" or "Archway" products on the shelves except in instances so exceptional that they may be described as de minimis 2. Private brands Many supermarkets have sold cookies and crackers under private brand names, i.e., under names of unspecified suppliers as distinguished from those expressly mentioned in paragraph 14(a) of the Second Amendment to Complaint. See G.C. Exh. 2. Those mentioned in said paragraph 14(a) are Independent, S & M, Swanson's, Hekman, National, and Sunshine. The private brand products have been delivered by the suppliers to a warehouse of a Respondent Employer. When need arose for such merchandise at a supermarket of such Respondent, it was trucked from such warehouse to a backroom of the market. Clerks of the store then took such merchandise from the backroom and placed it on the shelves in the selling area of the store. Some stock for replenishing the shelves was also left RETAIL STORE EMPLOYEES , LOCAL 876 in the backroom at the time of delivery thereto from the warehouse. Clerks also replenished such shelves from this backroom reserve. It is not necessary to enumerate all of these private brands, since all of them were not carried in the supermarkets of all Respondent Employers However, it seems sufficient to identify several. They are "Zion," "Dutch Maid," "Staff," "Food Club," "Meadowdale," "Fireside," and "Flavor-Kist." I find that clerks exclusively shelved these private brands, replenished the shelves therewith, and performed all related duties attendant upon these functions, such as pricing, levelling, rotating, and arranging merchandise, and removing damaged or unsalable stock. If material, I further find that none of said private brands was delivered or sold to the supermarkets, or placed on shelves of the supermarkets, by any of the distributors described in paragraph 14(a) of the Second Amendment to Complaint. Upon this branch of the case, it seems desirable to mention, and I find, that some of the Respondent Employers licensed independent concessionaires to operate the bakery departments in their supermarkets. Such licensees or concessionaires are either Awrey's or Sanders'. Further, I find that employees of such concessionaires are not employees of the supermarkets, that employees of the concessionaires exclusively shelve and replenish shelves with bakery products, and that employees of concessionaires do not shelve or replenish shelves with non-bakery products 3. Independent's products Independent's method of distribution requires its salesmen to obtain an order from the supermarket, following which Independent's truckdriver delivers this order to the supermarket's selling aisle or backroom. Not long after a delivery is made the salesman completely shelves Independent's merchandise in the store, placing any surplus in the store's backroom. In addition to shelving or racking this merchandise the salesman rotates, levels, prices, and rearranges merchandise, and removes damaged or unusable items. Between calls of the salesmen empty shelves were not always replenished by the store's clerks. In some stores it was the practice not to replenish empty shelves. However, these stores always honored a customer's request if such customer specifically requested Independent's product by name. In some other stores it was the market's practice to direct clerks to replenish shelves with Independent's products if stock was available in the store's backroom. And in a very few stores Independent's salesman would be asked to make a special delivery of merchandise if the shelves became bare of Independent's products before the next regular delivery thereof. Occasionally, Independent erected promotional displays in supermarkets. These were always set up and stocked by its salesmen. However, on some weekends such displays became sold out. When this occurred the store's employees replenished the displays with Independent's products. Since August 2, 1967, Independent has continued to sell and deliver its products to the supermarkets. Nevertheless, since that date its salesmen admittedly have not been allowed by the stores to shelve, rotate, level, price, or arrange said products, or to replenish the shelves, as these functions have been executed exclusively by clerks in the stores. This situation has arisen because Respondents have 443 enforced Article 8(c) of their collective-bargaining agreement. The foregoing findings are based on the evidence which I have credited and which, in large part, is not in dispute. Evidence not consonant with such findings, regardless of whether it was adduced by the Charging Parties, the General Counsel, or Respondent Local 876, has not been credited. 4. Hekman, National, and Sunshine These three suppliers distribute cookies and crackers to some or all of the supermarkets by the same method used by Independent, i.e., although a salesman took the order at the market a truckdriver later delivered the merchandise thereto. Shortly after such delivery the salesman arrived at the market where he stocked the shelves with his product and performed related tasks similar to those set forth above. And the store ' s clerks sometimes replenished shelves if they became depleted between visits of the salesman to the supermarkets. The clerks obtained stock for such purpose from the reserve supply left by the supplier's truckdriver in the store's backroom . Such clerks also performed the related functions mentioned above when they replenished shelves. Hekman, National, and Sunshine also set up special displays of their respective products at the Supermarkets. In such cases the displays were built and stocked by the salesmen of the suppliers . Nevertheless , on the occasion when these displays needed replenishing , usually on some, but not all, weekends, the store's clerks assumed the task of filling the display and otherwise servicing it. It was stipulated at the hearing, and I accordingly find, that the parties who are Respondents do prohibit the suppliers mentioned above from racking the shelves at the stores of the Respondent Employers since August 2, 1967, pursuant to Article 8(c) of their collective-bargaining agreement It was further stipulated , and I find, that all employees of Respondent Employers (except for those in the meat departments) are represented by Local 876 and are covered by a collective-bargaining contract between Local 876 and Respondent Employers . This contract has contained Article 8 (c) since August 2, 1967. Finally, I find that the enforcement of Article 8(c) of the collective-bargaining agreement by the parties thereto, Respondents herein , in the manner described above, violates Section 8(e) of the Act, in that it requires Respondent Employers to cease doing business with four vendors, Independent , Hekman, National, and Sunshine. Although the Supermarkets still buy cookies and crackers from the four vendors, the latter have been compelled to abandon that part of their sale which includes shelving and related services. This constitutes "cease doing business" within the meaning of Section 8(e) of the Act as it requires a different method of doing business. Cf. Amalgamated Meat Cutters , 113 NLRB 275, 277, 279, enfd . 237 F.2d 20, rehearing denied at 27 (C.A.D.C.); Boston Gas Company, 137 NLRB 1299, 1305, enfd. 320 F.2d 250 (C.A. 1). In this connection I find that the work of shelving and related functions , performed prior to August 2, 1967 , by driver-salesmen or salesmen of said four vendors, is not part of the work of the clerks and, therefore, not unit work. There are two reasons for this, both of which I find as facts: (a) The four vendors were selling a combination consisting of crackers and cookies plus shelving thereof by their employees. I find that this was an indivisible combination , so that causing the Respondent Employers 444 DECISIONS OF NATIONAL LABOR RELATION&BOARD to buy cookies and crackers without the accompanying shelving services constitutes a change in the method of doing business by said Employers with said four vendor: Hence, I further find that the clerks acquired new work,, and did not merely preserve traditional work, by the enforcement of Article 8(c) of the contract. (b) And I find that, to the extent that such shelving was performed by employees of the four vendors, it was not embraced within the work of the clerk's bargaining unit in the stores of the Respondent Employers, was not traditional clerks' work, and was not "fairly claimable" as clerks' work. This is because I find that for a substantial period of time prior to August 2, 1967, employees of the vendors performed shelving and related services. Hence, I find that this aspect of their work was not included in said unit. Merely because clerks performed other shelving in the Supermarkets is not conclusive, for I find that "shelving" is not the test of unit work. If it were, then the meat department would be part of the unit, and so would the bakery concessions operated by Awrey's and Sanders. Cf. Mock Road Super Duper, 156 NLRB 983, 984-985, enfd. 39^ F.2d 432 (C.A 6). Rather, I find that the type of work and the period of time prior to August 2, 1967, it was performed is more significant. Of course this means that some shelving was performed by clerks and this shelving is comprehended within the clerk's unit. It follows that this work done by clerks before August 2, 1967, is traditional unit work and may be the subject of protection by Article 8(c) as such clause seeks to preserve present work, rather than to acquire new work. See Dixie Mining Company, 165 NLRB No. 49. Nevertheless, it is desirable to make plain that Section 8(e) of the Act is not violated by said Article 8(c) of the contract as applied to private brands of cookies and crackers warehoused by Respondent Employers and traditionally shelved by their clerks. I find that such brands were not sold to the Supermarkets by the four vendors, and that employees of the vendors at no time' shelved these private brands. American Boiler Manufacturers Association, 167 NLRB Nos. 79 and 80. B. As to Baby Foods Unlike cookies and crackers, baby foods were delivered by the suppliers or vendors, Heinz, Beech-Nut, and Gerber, to the warehouse of any Respondent Employer purchasing the 'same. Thereafter the vendor's salesman regularly called at the markets to obtain an order for his product. Then the merchandise was delivered from the warehouse to a back or storeroom in the market. Shortly after delivery the salesman returned to the store and filled the shelves from the goods which had been delivered to the backroom. At the same time he performed related functions, which are more fully described above in connection with cookies and crackers. In the case of Hiller & Lutey, shelving was performed by clerks where such merchandise was vended by means of a "food-o-mat." Between calls of such salesmen the store or supermarket clerks replenished the shelves if necessary. This generally occurred on weekends when sales were greater. However, clerks did not always replenish when shelves became depleted, for sometimes they did no more than bring out enough to satisfy the needs of a customer specifically requesting such products. Baby food salesmen rather infrequently also set up, maintained, and dismantled special displays of their products. But in Allied's stores the clerks usually maintained and dismantled such displays. In all stores where Heinz products were carried, such products (other than baby foods) were shelved exclusively by the store's clerks. Since August 2, 1967, employees of Heinz, Beech-Nut, and Gerber have not been permitted by Respondents to shelve baby foods at the stores of Respondent Employers because the parties to the collective-bargaining contract have been enforcing Article 8(c) thereof Nevertheless, Respondents since said August 2, have continued to purchase baby foods from Heinz, Beech-Nut, and Gerber. It follows, and I find, that said enforcement, to the extent that it forbids shelving and associated practices by employees of Heinz, Beech-Nut, and Gerber, as they existed antecedent to said August 2, has caused Respondent Employers to cease doing business with these three suppliers of baby foods. Consequently, I, further find that such enforcement violates Section 8(e) of the Act. That such enforcement of Article 8(c) transgresses Section 8(e) of the Act has been briefly considered in the preceding subsection relating to cookies and crackers. That reasoning is equally applicable to baby foods. In addition, the following findings and comment pertaining to baby foods seem germane. (a)'I find that inventories of baby foods stored in the backrooms of the Supermarkets were small; and that Chatham and King Cole had adopted a policy of not retaining backroom stock, so that a backroorti surplus at Chatham and King Cole originated from overordering. Thus, I further find that store clerks replenished baby food shelves at infrequent intervals from backroom stock. This demonstrates, and I find, that shelving of the baby foods of Heinz, Beech-Nut, and Gerber, and the accompanying associated services, were performed principally by employees of said suppliers. Further, I find that insofar as this was performed by said employees it neither comprised work in the clerks' unit, nor was traditionally clerks' work. Hence, Article 8(c) did not preserve traditional clerks' work as applied to this work of the employees of the suppliers but, instead, amounted to a clause acquiring new or additional work for the clerks. If it were the work of clerks, then it would be reasonable to expect that, since their employer with its own employees and trucks moved such merchandise from its warehouse to the backroom of its stores, such clerks would then move it from such backroom to the store shelves. Yet the clerks did not touch said merchandise while it was stored in the backroom but, instead, did nothing, thereby leaving the task of shelving such products to the employees of the baby food suppliers. (b) Further, I find that Heinz, Beech-Nut, and Gerber sold to the Supermarkets an indivisible combination consisting of baby foods and associated services of shelving, pricing, levelling, and rotating merchandise, together with removal of damaged or otherwise unsalable items. It is not necessary to determine whether such services constitute an equitable servitude in chattels or become part of a "tie-in" sale, within the meaning of other branches of the law. International Salt Co., Inc. v. U.S., 332 U.S. 392. Cf. Standard Oil Company v. U.S., 337 U.S. 293; Columbia Broadcasting v. Amana Refrigeration, 295 F.2d 375 (C.A. 7). It is sufficient for present purposes to stress that the suppliers were selling a unified, integrated, and single package deal consisting of a product plus a service which went with the product. I find this service is not traditional clerks' work and is not "fairly claimable" as clerks' work. Such package deals are RETAIL STORE EMPLOYEES , LOCAL 876 not uncommon, especially since the advent of vending machines placed in several retail stores by the owner of such machines. When the operator of a retail store elects to have such machines installed and serviced in his store by the owners of the machines it cannot be said that such servicing constitutes work belonging to the store's employees. As found above, I reiterate that Section 8(e) of the Act has not been transcended to the extent that Article 8(c) applies to any work performed by the store clerks in replenishing shelves with baby foods of these three suppliers. And no violation is discernible - and I so find - in extending the provisions of Article 8(c) of the contract to baby foods marketed under private brand names. This is because I find that shelving of such private brands has traditionally been performed by store clerks and has not been performed by employees of the suppliers. As to these private brands Article 8(c) consititutes a valid work preservation clause. Great A & P Co v. Amalgamated Meat Cutters Union, 410 F.2d 650 (D.C.Mo.). C. As to Spices Delivering and shelving of the spices involved in the complaint correspond to those followed in distributing baby foods. These are the spices of Thompson-Jackson Associates, distributing the "Durkee" line, Frank Tea and Spice, distributing the "Franks" brand, and McMahon & McDonald, Inc., distributing "Spice Island" commodities. The procedure in getting the merchandise to the consumer follows. These three suppliers, for a substantial period of time preceding August 2, 1967, shipped their products to a warehouse of each Respondent Employer buying their spices. This merchandise was then transported from such warehouse to the Respondent Employer's market in its truck and then stored in a backroom of the store. Thereafter a salesman of the supplier regularly called at the market where he racked the products on the store's shelves. In some instances the spices were on a special rack supplied by the spice company and placed in the selling area of the store. Other duties discharged by the supplier's salesman when he racked the merchandise included rotating and cleaning the items, and removing damaged or unsalable products. Between calls of the salesman the store's clerks replenished shelves when they became empty. Because of the lack of frequency of the salesman's visits such replenishments were rare, and usually took place at Thanksgiving and Christmas. However, clerks did not always replenish empty shelves. In some stores clerks did not refill empty shelves, but, instead, did no more than bring forth enough to a customer who asked for such merchandise which could not be found on the shelves. Acid at some stores, including Food Giant, Chatham, Borman, Great Scott, Lindy's, and King Cole, none or almost none of the backroom stock was put on shelves by clerks, so that all or practically all spices of these three suppliers were shelved by their salesmen. At Hiller & Lutey, which carried "Franks" line of spices, the calls of the salesman were so infrequent that only the store clerks shelved "Franks" spices, and the salesmen did not engage in this function at such stores. Further, I find' that all other brands and varieties of spices than those of the three suppliers (Thompson-Jackson, Frank, and McMahon & McDonald) mentioned in the complaint (paragraph 14(b) of Second Amendment of Complaint, G.C. Exh. 2), have been 445 shelved at all times prior to August 2, 1967, by store clerks exclusively. These include salt (among which are "Morton's" and "Diamond" brands), some pepper, Lawry' s seasonings, Accent seasonings, Adolph's seasonings and meat tenderizer, and all private brands of their own sold by some of the Respondent Employers. Also I find that since August 2, 1967, the salesmen of the three suppliers of spices, Thompson-Jackson, Frank, and McMahon & McDonald, have been prevented from shelving the spices of their respective employers and have not been allowed to perform services related to such shelving. This is because Respondents have enforced Article 8(c) of their contract so that only clerks have engaged in such work since August 2, 1967. I further find that such enforcement of said Article 8(c) transgresses Section 8(e) of the Act as it amounts to a contract or agreement requiring Respondent Employers to cease doing business with the said three suppliers of spices. It is my opinion, and I find, that the reasons given above in finding a violation by Respondents in applying said Article 8(c) to the products of the named cookies, crackers, and baby foods vendors or suppliers are equally pertinent here. They are here incorporated by reference and need not be reiterated. Thus, I find that shelving of the spices of these three suppliers, to the extent it is executed by their salesmen, is not "fairly claimable" work of the clerks in the bargaining unit to which Article 8(c) is addressed, and that such shelving has not been traditional work of the store clerks. There are two additional grounds, peculiar to spices, for so finding. (a) Clerks replenished spice shelves only spasmodically or infrequently, and sometimes not at all, so that they performed less replenishment of spices than of cookies, crackers, and baby foods. Thus, a much larger percentage of the shelving may be attributed to the efforts of the salesmen of these three suppliers. In fact clerks were unfamiliar with the manner of placing merchandise on the special racks which were owned by the three suppliers of spices. This latter represented a process fraught with some complexity which the salesmen had mastered and which the clerks avoided. (b) Since the clerks had little or nothing to do with such shelving, the salesmen became more intensely identified with this work and the related functions. In this connection I find that the nature of such identity was such that to sever the shelving of the products from the services of the salesmen, which Article 8(c) effected, rendered the product less competitive because it required the peculiar skills of the salesmen to rack it in the most appealing symmetry. No different result is dictated because clerks exclusively racked "Franks" spices at Hiller & Lutey's supermarkets. This is because Hiller had but four stores and its purchases of "Franks" spices were so inconsequential that it was rendered unprofitable for the "Franks" salesman to make periodic visits to these stores to rack his merchandise. Of course it is manifest, and I find, that Section 8(e) of the Act has not been violated insofar as Article 8(c) has been applied to spices, salts, seasonings, and meat tenderizers not supplied by the three suppliers mentioned in the complaint These three are Franks, Thompson-Jackson, and McMahon & McDonald. Thus, I find it lawful to apply the restraints of Article 8(c) to salt, including "Morton's" and "Diamond" brands, Lawry's and Accent seasonings, Adolph's seasonings and meat tenderizer, private labels of spices of any Respondent sellings its own brand, and spices of any other supplier 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than the three specified in paragraph 14(b) of Second Amendment to Complaint (G.C. Exh. 2). D As to Soft Drinks Except for Canada Dry, each of the Charging Parties in Case 7-CE-13 distributed its soft drinks through a driver-salesman. When he called at a supermarket said driver-salesman not only took orders but forthwith thereafter delivered the merchandise to the store. Such delivery was made by filling the store's shelves with the bottled soft drinks of the supplier employing the driver-salesman. In the case of Canada Dry, its salesman first took an order after which a Canada Dry driver delivered the products to the store. Later the Canada Dry salesman returned to the market and filled the shelves with Canada Dry products. In addition to such shelf filling, the salesmen or driver-salesmen also arranged, rotated, cleaned, and priced their products on the shelves and often attached to the merchandise or displayed in the store advertising material Said advertising aids included carton stuffers, bottle ringers, shelf talkers, and posters. After filling shelves any excess stock was stored in the market's backroom. Salesmen and driver-salesmen periodically called at the markets to perform the above-described acts. On each of these occasions they repeated the routine outlined above, i.e., they filled shelves and performed the allied services referred to above. Between calls of the salesmen and driver-salesmen, the shelves were replenished by store clerks from stock left in the backroom of the store if and when the shelves became depleted. While said clerks did not often so replenish during the week, they did so more frequently on weekends when sales volume was materially augmented. Another task imposed by suppliers upon their salesmen and driver-salesmen required them to remove empty soft drink bottles which the consumer had returned to the store for a refund of his deposit. Such empties, however, were exclusively handed over to a clerk, who then paid the customer. Following this the store's clerks exclusively assembled the empties and stored them in the backroom so that they could be taken away from there. No similar practice was pursued as to so-called "throw-away" bottles because the customer, not having made a deposit thereon, was not entitled to a refund. Hence empty "throw-aways" were discarded or retained by the customer but never returned to the store Salesmen and driver-salesmen also occasionally set up and maintained special displays in selling areas of the store other than the soft drink shelves. In general clerks did not replenish these displays as they did not become depleted between calls of the supplier's driver-salesman or salesman. On the other hand, canned soft drinks of the said Charging Parties (supplied apparently only by Feigenson and Canada Dry) were exclusively shelved by the store clerks in the supermarkets. Likewise, clerks also exclusively shelved all other brands of bottled soft drinks than those of the Charging Parties in Case 7-CE-13, including those sold under the trade name of "Meadowdale," "Mavis," "Dad's Root Beer," "Tito," and "Staff." The parties have stipulated, and I find, that store clerks have at all times material exclusively shelved the following products and exclusively performed functions related to such shelving. frozen, bottled, and canned fruit juices and fruit punches; powdered mixes or drinks; Kool-Aid; Tangy; Tart and Tangy, Twist; coffee; tea; Sanka; cocoa, beer and wine; and milk and dairy products. Since August 2, 1967, the driver-salesmen and salesmen of the Charging Parties in Case 7-CE-13 have not been able to shelve the bottled soft drinks which they customarily and regularly shelved for many years prior to that date, nor have they been able to perform services associated with such shelving. Respondent Employers have continued to purchase bottled soft drinks since August 2, 1967, from said Charging Parties, but the functions of shelving and services associated therewith have since that date been performed by the store clerks of the Supermarkets. It is admitted, and I find, that the foregoing change, in the method of filling and servicing the shelves has resulted because the Respondents have enforced Article 8(c) of their collective-bargaining agreement To the extent that implementation of Article 8(c) deprives the Charging Parties of a benefit enjoyed by them prior to August 2, 1967, Respondents have thereby transgressed Section 8(e) of the Act because they have entered into a contract whereby the Respondent Employers have agreed with Local 876 to cease doing business with said Charging Parties in Case 7-CE-13. I find such implementation does exist, and I further find that it violates Section 8(e) for the reasons assigned above in finding a violation in the application of Article 8(c) to the shelving of cookies and crackers. Respondent Local 876 insists that clerks replenished shelves with a large percentage of the bottled soft drinks of the Charging Parties involved. But I do not so find, as I find that most of said bottles were placed on said shelves by driver-salesmen and salesmen. In any event I find that for several years prior to August 2, 1967, the original filling of shelves -- as distinguished from replenishing - in connection with an order taken by an employee of the supplier was exclusively performed by a driver-salesman or salesman of such supplier and not at all by a clerk of the store. It is this act of original shelving with its concomitant services which Section 8(e) of the Act protects as a method of doing business. And I find that such method is (a) substantial and (b) has been the way the Charging Parties have done business with Respondent Employers over an appreciable length of time. Additionally, I find that this method of original shelving is not "fairly claimable" as unit work by the store clerks, that it has not been traditionally performed by the clerks, and that it has been traditionally accomplished by employees of the Charging Parties in Case 7-CE-13 Another cogent reason for finding that the original shelving of the bottles and the accompanying services constitute a single, integrated, self-contained, and indivisible unit or package may be found in the fact, which I find, that driver-salesmen and salesmen attach advertising materials to the merchandise and shelves as wet as put up and maintain special displays' of their products. Respondent Local 876 minimizes this feature of their work by its evidence, which I credit, that in some supermarkets clerks were told by their supervisors not to use such advertising aids left in the backroom along with merchandise as a reserve to replenish the shelves. But I expressly find that such instructions affected only such replenishment of bottled soft drinks which the clerks performed, and that salesmen and driver-salesmen exclusively attached such advertising materials whenever they originally filled the shelves following the taking of an order. As found in connection with cookies, crackers, baby foods, and spices, no violation of Section 8(e) of the Act RETAIL STORE EMPLOYEES , LOCAL 876 has been established in applying Article 8(c) to the shelving and related services of other bottled soft drinks; of any canned soft drinks; and of any other products, such as wine, beer, cocoa, and dairy products, which are not distributed to the markets by the Charging Parties in Case 7-CE-13. Some of these other products are "Meadowdale," "Mavis," "Dad's Root Beer," "Tico," "Staff," "Kool-Aid," and those enumerated in the stipulation set forth above. Similarly for coffee. E. The Applicable Authoritative Adjudications Section 8(e) was introducted into the Act by certain amendments enacted by Public Law 86-257 in 1959. Prior to that time contracts containing language substantially similar to that in Article 8(c), often termed "hot cargo" clauses, had been upheld as valid as long as the parties to the contract voluntarily honored its terms. Local 1976, Carpenters Union v. N.L.R.B., 357 U.S 93, 108. See (a general description of the shelving or racking procedures involved in the principal case may be found in Retail Clerks Local 770, 125 NLRB 984, 986-987), 62 Michigan Law Review 1176, 1177. Since Section 8(e) was adopted the Supreme Court has expressly declared as lawful clauses designed to protect or preserve work traditionally, customarily, or fairly claimable as, within the bargaining unit composed of employees of the Employer signing the contract containing such clause. This, according to the Court, describes a primary dispute. National Woodwork Manufacturers Association v. N.L.R.B., 386 U.S. 612, 17 L. ed. 2d 357; Houston Contractors Association v. N.L.R.B., 386 U.S. 664. See 62 Michigan Law Review, 1176, 1187-88. On the other hand, the Supreme Court in the above cases declared that such clauses transgressed Section 8(e) when they seek "secondary objectives." I am of the opinion, and find, that as applied to the original shelving performed by employees of Independent and the Charging Parties in Case 7-CE-13, such application is secondary. This result emerges from that the fact, which I find, that the object of enforcing Article 8(e) "was to interfere with the practice of the markets of buying from the distributors on a delivered basis" and prevented the markets from "permit[ting] employees of other employers to complete their deliveries in the selling areas." Retail Clerks Local 770, 127 NLRB 1522, 1524, remanded 296 F 2d 368 (C.A.D.C.), decision on remand 145 NLRB 307, 311-312. While the foregoing case was not decided under Section 8(e) of the Act, it nevertheless is controlling on what constitutes a secondary objective in a dispute essentially identical to that involved in the instant cases. Cf. N L.R.B. v. New York Lithographers, 385 F.2d 551 (C.A. 3). Similar results were reached in Local 282, Teamsters, 139 NLRB 1077, 1087, and Local No. 26, Sheet Metal Workers, 168 NLRB No. 118 (TXD), although those cases did not involve shelving. And in Retail Clerks Union, 155 NLRB 656, 659, it was expressly adjudicated that such conduct is secondary. Said the Board : "Expansion of an established bargaining unit to include third persons doing business with the contracting employers , cannot be condoned as primary action . The Employers engaged in [supplying] who are affected by Article [8(c)] could not, without their assent , be included in Respondents' bargaining unit under any standard which the Board recognizes in defining appropriate units . . . . Nevertheless, the intent of Article [8(c)], as evidenced [by its application to suppliers] is to force the suppliers into that unit." This holding disposes, 447 in my opinion, of the contention of Local 876 that it is re-acquiring work formerly performed by it Cf. Truck Drivers Local No. 413 v N L.R.B , 334 F.2d 539 (C.A.D.C ). For I find that clerks never performed the original shelving of these products, and that such original shelving belongs in a unit of employees of the suppliers. Retail Clerks, Local 770, 145 NLRB 307, 312. (I do not consider, and so find, that the shelving of loose cookies and crackers, which the clerks exclusively performed until about 20 or 22 years ago, constitutes original shelving of the type at issue in this case ) Hence it is apparent that work which the clerks did not previously perform, and which constituted an operation performed by employees of the suppliers, cannot be obtained now under the guise of re-acquiring or "recapturing" work once performed by clerks. Meat Drivers Local 710 v. N.L.R B., 335 F 2d 709 (C.A.D.C.). Cf. N.L.R B. v. Milk Drivers' Union, Local No. 753, [Korth-Trans. Co.], 392 F.2d 845 (C.A 7), decided January 11, 1968; Retail Clerks, Local 770, 138 NLRB 244, 247-248. In effect, by enforcing Article 8(c) as to original shelving the parties to said Article are undertaking to regulate the labor policies of other employers. This is forbidden by Section 8(e) of the Act. Local Union No 26, Sheet Metal Workers, 168 NLRB No. 118. Cf. Sheet Metal Workers, 170 NLRB No. 116. This is so even when a cause seeking non-traditional work "may be consecrated to the primary objective" of aiding unit employees. 62 Michigan Law Review, 1176, 1189. Further, it is not necessary that a complete cessation of business dealings occur to find a violation. It is sufficient that Article 8(c) causes the suppliers to alter their method of delivering merchandise to the markets. Thus , Retail Clerks, supra, also holds that Section 8(e) is violated even though Article 8(c) as enforced involves a partial, rather than total, cessation of business with the suppliers. 155 NLRB 656, 660-661. See also A. Duie Pyle, Inc. v N.L.R B, 383 F.2d 772 (C.A. 3), cert. denied 390 U.S. 905; Retail Clerks Union, 138 NLRB 244. Further, the Board has held that whether the salesmen and driver-salesmen "are employees of the suppliers, the stores, or both, we believe that this is the central issue of the case . . . . [I]f they are employees of the suppliers" Article 8(c) may not be applied to them, and such enforcement of it violates Section 8(e) of the Act. Retail Clerks Intl. Assn., Local 1288, 163 NLRB No. 112, enfd. 390 F.2d 858 (C.A.D.C ). As found above, these persons are employed by the suppliers and not by the store. Highway Truck Drivers, 159 NLRB 84, and Pipe Fitters Local 120, 168 NLRB No. 138, are distinguishable. Cf. Calhoun Drywall Company, 153 NLRB 1196, 1200. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondents set forth in section IV, above, found to amount to unfair labor practices, occurring in connection with the operations of the Respondent Employers 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. VI. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices prohibited by Section 8(e) of the Act, it will be recommended that they cease and desist 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefrom and that they take specific affirmative action, described below, designed to effectuate the policies of the Act. Nevertheless, I expressly point out that (a) I so not find that Article 8(c) of the collective-bargaining contract per se contravenes Section 8(e) of the Act, so that only its enforcement in the manner found to offend said Act has been included in the cease and desist provisions of the Recommended Order, and (b) to the extent that said Article 8(c) preserves traditional, customary, or "fairly claimable," work of retail or store clerks in the bargaining unit, it may be lawfully enforced by the parties to the collective-bargaining contract containing said Article 8(c). The only affirmative action recommended consists of posting an applicable notice as set forth in Appendix A or B, supplying copies thereof to the Regional Director for mailing to the Charging Parties, and notifying the Regional Director of the steps taken to comply with the Recommended Order. On the record as unfolded at the hearing, I am unable to find that the Respondents have demonstrated any general hostility to the Act. Accordingly, I find that an Order enjoining Respondents from enforcing Article 8(c), or any other like agreement, in a manner proscribed by Section 8(e) of the Act will provide adequate relief while effectuating the policies of the Act, and that an Order broader in scope is not warranted. See the Board's Order in Sheet Metal Workers International Association Local Nos. 99 and 150, AFL-CIO, 170 NLRB No. 116 Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Retail Store Employees, Local Union No. 876, Retail Clerks International Association, AFL-CIO, and Local No. 337, a Charging Party, each is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Employers, and the Charging Parties in Case 7-CE-13, each is an employer within the meaning of Section 2(2), and each is engaged in commerce within the meaning of Section 2(6) and (7), of the Act. 3. By their conduct in enforcing Article 8(c) in the manner set forth above, Respondents have entered into a contract or agreement whereby Respondent Employers have agreed to cease doing business with Independent Biscuit Company, S & M Biscuit Distributing Company, Swanson's Cookie Company, Hekman Biscuit Company, National Biscuit Company, Sunshine Biscuit Company, Thompson-Jackson Associates, McMahon & McDonald, Inc., Frank Tea and Spice Company, Beech-Nut Life Savers, Inc., H. J. Heinz Company, Gerber Products Company, and the Charging Parties in Case 7-CE-13. Thereby Respondents have engaged in unfair labor practices within the meaning of Section 8(e) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication ]