Teamsters, Local No. 70

552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and National Biscuit Company. Cases 20-CB-2123 and 20-CB-2152 July 31, 1972 DECISION AND ORDER On November 30, 1970, Trial Examiner Robert L. Piper issued the attached Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs, and the Charging Party filed a brief in support thereof. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and finds merit in certain of Respondent's exceptions. Accordingly, we adopt the Trial Examiner's findings, conclusions, and recommendations only to the extent consistent with our Decision herein. The consolidated complaint alleges that Respon- dent violated Section 8(b)(3) by refusing to be bound by provisions of the existing contract which required Nabisco's drivers to make cash collections; 1 unilater- ally altering the terms and conditions of employment in said contract by directing and requiring drivers to cease making cash collections; and unilaterally altering the terms and conditions of employment of said drivers by directing and requiring them to cease their established practice of making cash collections.2 Additionally, the complaint alleges that Respondent violated Section 8(b)(1)(A) by threatening drivers with citation for trial before Respondent's executive board and with fines and loss of membership if they did not cease making cash collections, and by fining a driver because he continued making cash collec- tions. Respondent contends that the issue is one of contract interpretation, rather than an absence of good-faith negotiations; that neither the Money Receipt clause nor the Established Past Practices clause requires the collection of cash by the drivers; and that there is nothing in the record which would support the proposition that the termination of cash collections would be a modification of the past practices clause in the contract within the meaning of Section 8(d) of the Act. Respondent further contends Art 47, sec 3, Money Receipt, relied on in this respect, reads. Employees handling money shall account for and remit to the Employer money so collected at completion of the day's work The Employer shall give the employee a receipt for the monies so paid in or the employee will not be held responsible for the money 2 Art 60, Established Past Practices , relied on in this respect, states that there is an existing and available grievance and arbitration procedure by which the parties can determine the meaning of the contract. We agree with Respondent's contention this this dispute is essentially a dispute over the terms and meaning of the contract between Nabisco and Respondent. For that reason, we find merit in Respondent's excep- tions that the dispute should be resolved pursuant to the contract and we shall dismiss the complaint. Nabisco is engaged nationally in the manufacture and sale of cookies, crackers, and related products. Respondent and Nabisco have for many years3 been parties to a collective-bargaining agreement, known as the National Master Freight Agreement. At its Emeryville facility, Nabisco employs 11 drivers, who are represented by Respondent, to deliver Nabisco's products to various retail stores. Nabisco's drivers deliver and collect, but do not sell. For more than 20 years, Nabisco has had a practice, both nationally and at Emeryville, of having its drivers collect checks or cash from customers, who desired, or were required, to pay upon delivery. Approximately 20 percent of the drivers' stops required collection of checks or cash, and cash payments represented approximately 5 to 10 percent of the total dollar value of deliveries. In 1968 and early 1969, there was an increase in the number of armed robberies and related beatings which victimized delivery drivers in the East Bay and Oakland areas. In February 1969, a milk driver was shot to death during an armed robbery after making a delivery in West Oakland. Prior thereto, Nabisco's dnvers had been robbed and assaulted in 1965 and 1966. Other drivers represented by Respondent and employed by two of Nabisco's competitors, Sunshine Biscuit Company, and American Biscuit Company, have also been victims of robbery and assault. Respondent's president received a letter dated April 2, 1969, from the chief of the Oakland Police Department, setting forth certain criminal statistics and requesting that such information be printed in Respondent's official publication. The letter noted that there had been more than 25 armed robberies of delivery vehicles in Oakland for the first 3 months of 1969; that all of the offenses were committed during daylight hours by individuals who waited until a driver completed his delivery and then displayed a handgun; and that a milk driver had been fatally shot after completing a delivery to a grocery store. Also, the letter set forth procedures for drivers to follow to avoid possible injury or death when All past practices existing between the Employer and the Local Union established prior to July 1, 1961, shall remain in full force and effect, except as modified or changed in this Agreement from the Agreement which was in effect June 30, 1961. 3 The contract in effect during the period material herein ran from April 1, 1967, to March 31, 1970. 198 NLRB No. 4 TEAMSTERS, LOCAL NO. 70 553 threatened with robbery, including advice that drivers could minimize robberies by not carrying large sums of money. Respondent, concerned with the increases in the risk of bodily injury and possible death to its member-drivers, sent copies of this letter to Nabisco, Sunshine, and American and requested that they have their drivers stop collecting cash and post signs on the outside of their trucks indicating that the drivers did not carry any money. Although Sunshine and American agreed to com- ply with Respondent's request, Nabisco refused to honor such request after meeting with Respondent's officials on April 27, 1969. Nabisco noted that its drivers had, as an established practice for many years, collected cash, and asserted that the past practices clause of the contract between Nabisco and Respondent, which did not expire until March 31, 1970, required collection of cash by the drivers. The parties did not meet again to discuss the cash collection issue until May 19. On May 2, one of Nabisco's drivers was robbed of approximately $100 by three men after making a delivery, and he was struck in the mouth with a pair of brass knuckles. At subsequent meetings between the parties, Nabisco offered a proposal that it would install slot or depository safes in the cabs of its trucks, and locked wire-mesh tailgates at the rear of the truck, and that a sign would be attached to the depository safes noting that the driver had no keys to open the safe. Respondent rejected Nabisco's proposals be- cause it felt that the proposed installations would not give the drivers sufficient protection. Although Respondent notified Nabisco that as of August 1, 1969, there would be no more cash collected by the drivers, the drivers continued to collect cash until September 11, when Nabisco's operations were closed by a nationwide strike of bakers who were represented by another union. On November 3, 1969, Nabisco posted a notice at its plant notifying all drivers that they would be required to pick up cash on delivery and any driver not doing so would be subjected to disciplinary action including possible discharge. However, Nabis- co did not discipline any drivers, notwithstanding that only two drivers continued to collect cash after November 4, 1969, the first day of operation after the strike. One driver continued to collect cash for 2 days, and the other collected until November 19. Nabisco and Respondent are, as noted, parties to the National Master Freight Agreement, and also to the Joint Council No. 7 Local Pickup and Delivery Supplemental Agreement. The substantive contractu- al provisions here in issue (fns. 1 and 2, supra) are part of the supplemental agreement . Under the provisions of the National Agreement (article 8, section (a)(1)), questions of interpretation of the supplemental agreement are to be processed in accord with the grievance procedures of the supple- mental agreement. Under these procedures, matters in issue are first to be considered by the local union and the employer involved. Matters not resolved at that stage are to be referred within 45 days of the occurrence involved to the Joint Council 7 Labor Management Committee, on which the Union and the Employer Associations have equal representa- tion; late submissions may be waived by a majority vote of the Joint Committee. Decisions with respect to the substantive merits of the controversy are also to be made by majority vote of the committee. In the event the Joint Committee is deadlocked, further proceedings at higher levels are provided for if a work stoppage is threatened which might involve local unions outside Joint Council 7; except in discharge cases, where either party may require binding arbitration, arbitration may be had with respect to deadlocked disputes that are not required to be referred to higher levels only if a majority of the Joint Committee so decides; and unless a matter is referred to arbitration, strikes and lockouts are permitted once the grievance machinery has been exhausted and the deadlock remains. In the Collyer case4 we set forth the general considerations which led us to the conclusion that arbitration is the preferred procedure for resolving a dispute which could be submitted to arbitration concerning the meaning of the parties' agreement; we adhere to those views and we see no need to reiterate them here. Our concern, rather, is the application of the Collyer principles to the facts of this case. Initially, we note, as set forth above, that underly- ing the complaint is the premise that the existing contract requires the drivers to make cash collec- tions, and the further premise that there was an established practice of making cash collections which was preserved intact by the established past practice provisions of the contract. Without purporting to decide what the contractual provisions relied on do mean, we think it apparent that the General Counsel's interpretation is not compelled by the language of those provisions. Thus, the resolution of this dispute necessarily depends upon a determina- tion of the correct interpretation of a contract; and as we said in Collyer, it is this precise type of dispute which can better be resolved by an arbitrator than by the Board. It is true, as our dissenting colleagues point out, 4 Col/yer Insulated Wire a Gulf & Western Systems Co, 192 NLRB No. 150 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the contractual provisions here, unlike those in Collyer, do not compel arbitration unless both parties agree. However, the contract provides for mandatory submission to a bipartite panel composed of union and employer representatives. That panel, and not the immediate disputants, makes the final determina- tion whether arbitration may be invoked.5 Moreover, the Board has deferred to the same bipartite provisions in appropriate cases when the issue before it was whether to accept a determination already made.6 It is thus our considered judgment that when, as here, the alleged unfair labor practices are so intimately entwined with matters of contractual interpretation, it would best effectuate the policies of the act to remit the parties in the first instance to the procedures which they have devised for determining the meaning of their agreement. And if those procedures fail to resolve the issue, our Order permits any party to move for further consideration. Under all the circumstances, we conclude that this is an appropriate case for deferral to the machinery agreed upon by the parties for resolution of disputes arising under their contract, and we shall enter an appropriate order. We have not accordingly consid- ered the merits of the alleged unfair labor practices. REMEDY Without prejudice to any party and without deciding the merits of the controversy, we shall order that the complaint herein be dismissed, but we shall retain jurisdiction for a limited purpose. In order to eliminate the risk of prejudice to any party we shall retain jurisdiction over this dispute for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted to arbitration, (b) the grievance or arbitra- tion procedures have reached a result which is repugnant to the Act,7 or (c) the decision by the arbitrator is not wholly dispositive of the issues in this proceeding.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: Jurisdiction of this proceeding is hereby retained for the limited purposes indicated in that portion of our Decision and Order herein entitled "Remedy." MEMBERS FANNING and JENKINS, dissenting: In its Collyer decision a majority of the Board announced a new policy of deferring in advance to the arbitral process, whether or not the complaint before the Board was cognizable as an unfair labor practice. In so doing the majority relied on numerous Board and court decisions, including the Supreme Court's Steelworkers trilogy. Those decisions encour- aged the use of arbitration as a peaceful means of resolving labor disputes. Now the majority extends further its Collyer doctrine by dismissing a complaint in deferral not to arbitration, but to "the machinery agreed upon by the parties for resolution of disputes arising under their contract." The language of the parties' contract clearly eschews arbitration as the required method of interpreting their contractual commitment. Article 8, paragraph (c), of the Nation- al Agreement provides: Any provision in the grievance procedure of any Supplement hereto which would require dead- locked disputes to be determined by any arbitra- tion process shall be null and void as to any agreements involving interpretation of the Sup- plemental Agreement or this National Master Agreement. The decision of the National Griev- ance Committee as to whether a grievance involves an interpretation which is subject to this procedure shall be final and conclusive. Thus, the majority's dismissal of the instant case is not an encouragement of the use of arbitration in the resolution of labor disputes. Rather, as indicated by the following provision of article 42, section 4, of the Supplemental Agreement, the majority is, if any- thing, encouraging these parties, who have not 5 Compare Tulsa-Whisenhunt Funeral Home, 195 NLRB No 20. The suggestion , offered in dissent, that our abstention here will encourage disruptive strikes and lockouts is faulty The history of these grievance procedures, which prevail nationally, demonstrates that the procedures here involved have worked well and have produced swift resolution of grievances, without resort to strikes or lockouts, in an overwhelming percentage of the cases in which it has been invoked 6 E.g., Roadway Express, Inc, 145 NLRB 513. r See Port Drum Company, 179 NLRB 555, and 180 NLRB 590; cf Dubo Manufacturing Corporation, 142 NLRB 431 Protection of the parties' interests in the manner herein avoids any problems that might otherwise arise under Sec I0(b) of the Act See N L R B v Central Power & Light Company, 425 F 2d 1318, 1320 (C A. 5). See also Sec 102.48(d) of the Board's Rules and Regulations and Statements of Procedure Series 8, as amended B As a determination that Respondent violated Sec . 8(b)(l)(A) by threatening and imposing a fine on a member for refusing to obey Respondent's orders not to collect cash is dependent on a finding that Respondent unilaterally altered the terms and conditions of employment in the contract by directing and requiring Nabisco's drivers to cease their established practice of making cash collections , a finding by the arbitrator that Respondent did not alter the terms and conditions of the contract would make unnecessary the entertainment of the allegation of an 8(b)(1)(A) violation by the Board However , should the arbitrator find that Respondent did unilaterally alter the terms of the contraact,' the Board could, pursuant to an appropriate request, and in its discretion, make a determination with respect to the 8(b)(1)(A) allegation. TEAMSTERS, LOCAL NO. 70 555 mutually agreed to use an arbitrator, to engage in a strike or lockout to settle this dispute: Except as stated in Sections 3 and 5, all cases on which the Committee [Joint Labor-Management Committee] reaches a deadlock may be submitted to an impartial arbitrator for a decision only if a majority of the Committee so decides. Otherwise, either party shall be permitted all legal or economic recourse including strike or lockout action. Apart from the wisdom of the majority's Collyer doctrine, surely the decision in this case is directly contrary to the express purpose of this statute, which was enacted to prevent industrial strife in the form of strikes and lockouts. Yet the "machinery" of the parties to which the majority defers provides explicit- ly for the use of economic force. We cannot agree that the Steelworkers trilogy or any judicial or statutory policy warrants the encouragement of such conduct by labor or management. Another question would be presented if all parties had agreed to be bound by the decision of the Joint Committee, and that panel had met and issued a decision, which, under Spielberg standards, was deemed fair, regular, and not clearly repugnant to the purposes and policies of the Act. Such a judgment cannot be made by the Board in this case now or in the future. For the Charging Party has not attempted to have this dispute resolved through the parties' contractual machinery and the time limit for the use of that machinery has expired. In any event, arbitration is not a necessary element of that machinery and, as indicated above, is specifically rejected if the parties are deadlocked. Thus, not only is the majority "deferring" to a nonexistent arbitration, but to the extent it succeeds in getting the parties to relinquish this plainly reserved right to seek other channels, including this Board-which one party has invok- ed-the majority is forcing the parties into a position they have not themselves formulated, contrary to H. K Porter v. N. L. R. B., 397 U. S. 99. We believe the majority's decision represents another extension of its Collyer doctrine and is detrimental to sound labor relations law and policy. For these reasons we dissent. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT L. PIPER, Trial Examiner : This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard at San Francisco, California, on August 25 and September 8, 1970, pursuant to due notice. The consolidated complaint, which was issued on June 15, 1970, on charges filed November 10 and December 24, 1969,1 respectively, alleged as amended that Respondent engaged in unfair labor practices proscribed by Section 8(b)(3) and 8(b)(1)(A) of the Act. Respondent's answer denied the alleged unfair labor practices. All of the parties filed briefs. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS National Biscuit Company (hereinafter called Nabisco) is a Delaware corporation engaged in the manufacture, sale, and distribution of bakery products, with a place of business in Emeryville, California. Nabisco annually purchases and receives in California directly from sources outside the State of California goods and products valued in excess of $50,000, and sells and ships from California directly to nonretail purchasers outside the State of California goods and products valued in excess of $50,000. Respondent admits, and I find, that Nabisco is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Respondent, Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Respondent and Nabisco have been parties to a collective-bargaining agreement, known as the National Master Freight Agreement, for many years. The contract in effect at all times material herein ran from April 1, 1967, to March 31, 1970, and covered the terms and conditions of employment of Nabisco's 11 truckdrivers at its Emery- ville facility represented by Respondent. Nabisco's truck- drivers delivered its products to its retail customers. Historically Nabisco's drivers always collected cash from those customers who desired or were required to pay cash upon delivery. During the spring, summer, and fall of 1969, Respondent sought to change this procedure to one under which the drivers would no longer collect any cash, and ultimately ordered Nabisco's drivers to no longer collect cash. The issues as framed by the pleadings are: (1) Alleged refusal to bargain by (a) refusing to be bound by the provisions of the contract allegedly requiring Nabisco's drivers to make cash collections, (b) unilaterally altering the terms and conditions of employment of the drivers in said contract by directing and requiring them to cease and desist making cash collections, and (c) unilaterally altering the terms and conditions of employment of said drivers by ' All dates hereinafter refer to 1969 unless otherwise indicated 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directing and requiring them to cease and desist their established practice of making cash collections; and (2) alleged restraint and coercion by (a) threatening said drivers with citation for trial before Respondent's executive board if they did not cease and desist making cash collections, (b) threatening a driver with a fine and loss of membership in Respondent if he did not cease and desist making cash collections, (c) citing said driver to appear for trial before Respondent's executive board because he failed and refused to cease making cash collections; and (d) the executive board assessing a fine against said driver because he failed and refused to cease making cash collections. B. Chronology of Events As Respondent concedes, the facts are substantially undisputed. Nabisco is engaged nationally in the manufac- ture and sale of cookies, crackers, and related products. At its Emeryville facility, Nabisco employed 11 drivers, represented by Respondent, to deliver Nabisco's products to various retail establishments, including supermarkets, grocery stores and like facilities. Nabisco employed a sales force which took the customers' orders and delivered them to Nabisco's Emeryville facility for delivery. Thus Nabis- co's drivers only delivered and collected but did not sell . For more than 20 years Nabisco both nationally and at its Emeryville facility had the established practice of having its drivers collect from its customers, excluding those who purchased upon credit, who desired or were required to pay upon delivery. Such customers upon delivery paid the drivers either by check or cash. The record establishes that approximately 20 percent of the drivers' stops required collection by check or cash, and that approximately 5 to 10 percent of the dollar total of deliveries was paid in cash. This proceeding concerns only the drivers' cash collections. Each day upon the completion of their routes the drivers turned the cash in to Nabisco. During 1968 and the early part of 1969, there was an increase in the number of armed robberies and assaults of other drivers delivering bakery, dairy, and beverage products in the East Bay area, particularly Oakland. In February 1969 a milk truck driver was shot to death during an armed robbery after making a delivery in West Oakland. At that time none of Nabisco's drivers had been subjected to robbery or assault other than one in June of 1965 and another in September of 1966. Respondent also represented the drivers of two of Nabisco's competitors, Sunshine Biscuit Company and American Biscuit Compa- ny, a few of whose drivers had been subjected to robbery and/or assault. On April 2, Oakland's chief of police wrote Respondent, pointing out that as of then during 1969 there had been more than 25 armed robberies of delivery vehicles in Oakland, including the death of the milk truck driver, and suggesting a series of precautions to minimize such crime, including not carrying large sums of money if possible. Respondent sent copies of this letter to Nabisco, Sunshine, and American. Respondent then requested the three companies to have their drivers stop collecting cash, and to post a sign on the outside of their trucks advising the public that the drivers did not carry any money. American and Sunshine agreed to this request. Pursuant to Respondent's request, Nabisco and Respon- dent's officials met at the latter's office on or about April 27 to discuss Respondent's proposal that the drivers no longer collect cash. Nabisco was represented by Carroll Blackwell, its Emeryville branch manager, Bert G. Gribble, its divisional sales manager, John J. Cunningham, its regional personnel director, and Russell Bevans of the Draymen's Association of San Francisco. Respondent was represented by A. M. Leishman, its secretary-treasurer, Business Agents Joseph Arino, Richard Sarmento, and Charles Mack, and Sam Shootkevich, Respondent's shop steward at Nabisco. Arino and Sarmento informed Nabisco that Respondent wanted Nabisco to have its drivers stop collecting cash, pointing out the general increase in armed robberies and assaults, the facts referred to in the letter of the Oakland chief of police, the death of the milk truck driver, and that American and Sunshine, competing biscuit manufacturers, had agreed to do so and post signs on their trucks advising the public that their drivers did not carry cash. Nabisco replied that their drivers had always collected cash, that such had been an established practice for more than a score of years , and that the past practices clause of the contract between Respondent and Nabisco, which did not expire until March 31, 1970, required collection of cash by the drivers. Nabisco insisted that it had a right to require Respondent to live up to the terms of their contract. The past practices clause in the contract read as follows: ARTICLE 60. Established Past Practices All past practices existing between the Employer and the Local Union established prior to July 1, 1961, shall remain in full force and effect, except as modified or changed in this Agreement from the Agreement which was in effect June 30, 1961. Respondent's officials conceded that the collection of cash by the drivers was an established past practice and that Respondent wished Nabisco to devise a change in such past practice to augment the safety of the drivers. Although Respondent made such request, its only proposal was that Nabisco's drivers no longer collect cash and the installa- tion of signs. Although Nabisco insisted that the collection of cash by the drivers was a long-established practice and thus could not be modified under the terms of the parties' contract, Nabisco agreed to take the matter up with its higher officials. On May 2 one of Nabisco's drivers was robbed by three men of about $100 while making a delivery. He was struck in the mouth with a pair of brass knuckles. No other weapon was used. The parties met again on May 19. At this meeting Nabisco presented a counterproposal, namely, that it install slot or depository safes in the cabs of the trucks and locked wiremesh tailgates at the rear of the truck so that no one could enter while the driver was inside the body of the truck before or after delivery, circum- stances prevailing during several of the preceding robber- ies. Nabisco's trucks contained a separated cab, which required the driver to go to the back of the truck in order to enter its body where the products were carried. The plan contemplated the drivers collecting the cash and immedi- ately depositing it in the safe through the slot. Such safes TEAMSTERS, LOCAL NO. 70 557 could only be unlocked by a key kept at the plant, so that the driver or anyone else would be unable at any time to remove the cash. Nabisco also proposed that a sign be attached to the safe advising any would-be robber that the driver had no key and was unable to open it. Nabisco advised Respondent that Nabisco had had considerable success in curtailing robbery attempts and assaults with this same method of operation in both the Harlem and Watts areas. Nabisco told Respondent that under Respon- dent's plan Nabisco would suffer competitive injury because a number of its competitors other than American and Sunshine, including Langendorf, Mother's, Granny Goose, Frito Lay, Hostess and Laura Scudders, delivered competitive products and continued to collect cash from the customers. Nabisco stated that it would lose sales and competitive position because of those customers who could not purchase on credit and insisted on paying in cash rather than by check. The record establishes that on the average the drivers collected from $200 to $300 cash a day, occasionally going as high as $600 a day. Respondent's representatives refused Nabisco's proposal and Nabisco refused Respondent's proposal. On May 27 by letter Respondent rejected Nabisco's proposal with respect to the installation of safes, signs thereon, and locked tailgates and requested an additional meeting, which was held June 6. At that meeting and an additional meeting on June 23, the positions of the parties remained unchanged, Nabisco refusing to accede to Respondent's demand that the drivers no longer collect cash and insisting upon the maintenance of the contract, and Respondent refusing Nabisco's proposal for safes and locked tailgates. At the next meeting on July 8, Respondent informed Nabisco that as of August 1 there would be no more cash collected by the drivers. On July 16 Respondent wrote Nabisco advising that its proposal for safes and tailgates was unacceptable and that as of August 1 there would be no more cash collected by the drivers. On August 1 Bevans informed the drivers that their refusal to collect cash would be a violation of the collective-bargaining contract. Following that meeting the drivers continued to collect cash until September 11, when Nabisco's operations were closed by a nationwide strike of bakers, represented by another union. On September 2, Respondent's executive board sent all employers of its member drivers a notice that effective September 10 the drivers would no longer collect money from customers. On September 11 Respondent held a meeting of all of the drivers of the three biscuit companies, Nabisco, Sunshine, and American, at which the drivers voted, 31 to 1, to no longer make cash collections. On September 22 Respon- dent sent Nabisco a letter advising it that Respondent's executive board had approved such action of the members, was thereby notifying all employers that the drivers would no longer collect cash effective September 10, and that Respondent expected Nabisco to abide by this decision. Nabisco's operations were closed by the bakers' strike from September 11 to November 4. On November 3 Nabisco posted a notice at its plant to all drivers that they would be required to pick up cash on deliveries and any driver not doing so would be subjected to disciplinary action including the possibility of discharge. The record establish- es that at no time did Nabisco ever accede to Respondent's demand, and consistently insisted that the drivers continue to collect cash as required by the terms of the contract between Respondent and Nabisco . On November 4 when Nabisco's drivers reported for work after the strike, Arino, after requesting the presence of James F . Cunnison, Nabisco's operations supervisor, addressed and informed the drivers that as a result of the action of Respondent's executive board they were not to collect any cash from customers under any circumstances on and after that date, and that doing so would subject them to discipline by' Respondent. Cunnison then informed the drivers that such orders were not Nabisco's instructions, and that if they would not accept money from cash customers they should not make the delivery but return the merchandise to the warehouse. Approximately all of the drivers were present except George Dalberti, who had left on his delivery route at about 5 a.m. Only Dalberti collected cash November 4. Although Dalberti did not hear Arino's orders, Dalberti had been present at Respondent's membership meeting on September 11. Later that morning Arino met with Blackwell, who complained that Respondent's instructions to the drivers were in violation of the contract. Arno told Blackwell that if Nabisco disciplined any of its drivers for not making cash collections as threatened in its notice of November 3, Arino would pull all of the drivers out on strike. When Dalberti returned to the warehouse that evening, another driver observed that Dalberti had collected cash, told him that Anno had instructed the drivers not to collect any cash, and reported the matter to Shootkevich, the shop steward. Shootkevich then informed Dalberti that he was not to collect cash anymore pursuant to Anno's orders that morning. Dalberti replied that he wanted to hear this from Arino. The following morning Arino and Shootkevich met Dalberti when he reported for work. Arino informed Dalberti that he was in violation of the orders of the executive board, and that Arino was going to cite Dalberti to the board, his book would be taken away and he would be fined $1,000. Anno also asked Dalberti for his union book and his address. Arino admittedly advised the other drivers that they would be cited to the executive board and disciplined if they collected cash contrary to its orders. Dalberti continued to collect cash through November 19. Pursuant to Respondent's orders, none of the other drivers collected cash on or after November 4. Shortly before November 13, Anno cited Dalberti to Respondent's executive board for continuing to collect cash contrary to the orders of it and the membership. On November 13 Anno again appeared at Nabisco's plant and informed the drivers that Dalberti had been cited before the executive board, and warned them that if any of them collected cash they too would be cited before the board. On November 22 Dalberti was served with a notice to appear before Respondent's executive board as a result of Arino's citation against Dalberti , charging that he had collected money from customers while making deliveries in direct violation of the orders of the executive board and the membership. On December 9 Dalberti was tried by Respondent's executive board, found guilty, and fined $175 for violating its orders by continuing to collect cash 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on his job. Dalberti was required to pay and paid the fine in order to appeal his case and in order to have Respondent continue to accept his dues. Respondent held Dalberti's appeal in abeyance pending the outcome of this proceeding. In January 1970 a Nabisco driver, while making deliveries in West Oakland, was held up and robbed in his truck of his own cash by two men armed with a knife and a gun. He was not assaulted. C. Refusal To Bargain The complaint alleged that from on or about September 2 Respondent refused to bargain with Nabisco by (1) refusing to be bound by the provisions of the contract allegedly requiring Nabisco's dnvers to make cash collec- tions as a term and condition of employment, (2) unilaterally altering said terms and conditions of employ- ment in said contract by directing and requiring the drivers to cease and desist making cash collections, and (3) unilaterally altering the terms and conditions of employ- ment of said drivers by directing and requiring them to cease and desist their established practice of making cash collections. It is undisputed that Respondent, after the various meetings, negotiations, proposals, counterpropo- sals, and notices found above, and after Nabisco refused to accede to Respondent's demand that the drivers no longer collect cash and that Nabisco install signs on the trucks advising the public that the drivers did not carry money, on or about November 4 unilaterally directed and ordered its members, Nabisco drivers, to cease and desist all collection of cash in the future. To enforce such order, approved by Respondent's membership and executive board, Respon- dent threatened the drivers with disciplinary action and fines if they violated the order not to collect cash, and in fact disciplined and fined one employee for doing so. Respondent's position in essence is that it had the right to take such unilateral action to enhance the safety of its driver members, in view of the increase in armed robberies and assaults in the area serviced by Nabisco. The record establishes that for more than 20 years Nabisco's drivers, as part of their terms and conditions of employment during deliveries, had an established practice of collecting cash from certain customers. The contract between the parties provided that all past practices established prior to July 1, 1961, should remain in full force and effect, except as modified or changed in the contract, which admittedly did not modify this practice. Thus it is clear and I find that the contract between the parties prohibited the modification of established past practices, including that of collecting cash. In addition to this provision of the contract, the General Counsel and the Charging Party also rely upon another provision, article 47, which provided in section 3 thereof that: "Employees handling money shall account for and remit to the Employer money so collected at completion of 2 Associated Home Builders of Greater East Bay, Inc v N LR B, 352 F.2d 745 (C A 9, 1965), Plumbers, Local 280, 184 NLRB No 44 (1970), Local 191, U E W, 181 NLRB No 111 (1970), Standard Oil Company, 174 NLRB No 33 (1969); United Mine Workers (McCoy Coal Company), 165 NLRB 592 (1967), Union Carbide Corporation, 165 NLRB 254 (1967), Teamsters, Local No 783, 147 NLRB 264 (1964), and Brotherhood of Locomotive Firemen and Engmemen, 130 NLRB 1147 (1961) 3 Although neither party proposed it, there appears to be a solution the day's work. The Employer shall give the employee a receipt for money so paid in or the employee will not be held responsible for the money." Respondent, although conceding that the collection of cash was an established practice and condition of employment, nevertheless con- tends that such was not covered by the established-past- practices clause of the contract, and hence was subject to unilateral change by Respondent. Respondent in effect argues that the collection of cash was a management prerogative rather than a past practice. The record establishes, and I find, the contrary. Section 8(d) of the Act defines the term, "to bargain collectively." In addition, it specifically provides that "where there is in effect a collective-bargaining contract ... the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification-(l) serves a written notice upon the other party . . . sixty days prior to the expiration date . . . ; and (4) continues in full force and effect . . . all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later." Respondent concededly has not complied with the notice provisions of Section 8(d). It must now be considered well settled that a unilateral change in the terms and conditions of an existing contract without complying with the requirements of Section 8(d) constitutes a refusal to bargain in violation of Section 8(a)(5) or 8(b)(3).2 Thus it is evident, and I find, that Respondent, by unilaterally changing the terms and conditions of the existing contract with respect to the collection of cash by the drivers, has violated its duty to bargain, as specifically set forth in Section 8(d), in violation of Section 8(b)(3) of the Act.3 Respondent also contends that if the contract requires the collection of cash it is void as against California public policy, because of the provisions of the California Labor Code which require employers to furnish safe places of employment. In general such Code, as customary, requires employers to furnish and use safety devices and safeguards and adopt general practices reasonably adequate to render their places of employment safe. The lack of safety in the "place" of employment herein was not caused by or under the control of the employer, but on the contrary was caused by crime in the streets, to which hazard all of the public is exposed. Such provisions of the California Labor Code do not authorize Respondent unilaterally to modify its contract with Nabisco in violation of Section 8(d) and 8(b)(3) of the Act. Respondent cites no authority in support of its position, which I find to be without merit. D. Restraint and Coercion The complaint alleged that Respondent restrained and coerced employees in the exercise of rights guaranteed in available which might satisfy the objectives of each, i.e., the continuation of the collection of cash under the contract , and the elimination or substantial diminution of armed robberies and assaults upon the drivers , eg, the installation of unremovable slot or depository safes in the trucks which the drivers could not open , the immediate depositing of all cash collected therein, the installation of locked tailgates , and the installation of large signs on the outside of the trucks stating : "our drivers do not carry cash," which under such circumstances would literally be true TEAMSTERS, LOCAL NO. 70 Section 7 of the Act by threatening them with citation before Respondent's executive board, threatening them with fines and loss of membership, citing them for trial before Respondent's executive board, and said board assessing fines against them, all if they continued to make or made cash collections in violation of Respondent's orders. As hereinabove found, it is undisputed that on and after November 4 Respondent threatened drivers with citation for trial before its executive board, threatened Dalberti with a fine and loss of membership, cited Dalberti and required him to appear for trial before its executive board, and fined Dalberti, in order to enforce the order of its executive board and membership that the drivers cease and desist making cash collections. Such threats of discipline, fines, and loss of membership and such fines clearly constitute restraint and coercion which do not fall within the proviso of Section 8(b)(1)(A), which permits a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein, because they do not deal with purely internal matters but on the contrary are in derogation of the collective- bargaining principle and the contract. In Allis-Chalmers,4 the Supreme Court held that the union's fines of members and suits for collection thereof, for crossing its picket lines during an authorized strike, did not constitute restraint and coercion under Section 8(b)(1)(A) because of the union's right to prescribe its own rules with decisions the Boards and the Supreme Court6 held that such right under the proviso applied only to internal affairs of the union and did not authorize restraint and coercion in contravention of the basic statutory policy to uphold collective-bargaining contracts and the collec- tive-bargaining principle. In United Mine Workers,7 the union fined members for crossing a legal picket line of a sister local. The union had a no-strike provision in its collective-bargaining contract. The Board found such fines restraint and coercion under Section 8(b)(1)(A) not protected by the proviso because they did not involve matters of purely internal concern to the union. In Scofield ,8 the Supreme Court noted that the union rule therein, which prohibited piecework over predetermined ceilings and imposed fines for violation thereof, did not violate Section 8(b)(1)(A) because it "left the collective- bargaining process unimpaired [and] breached no collec- tive contract ...... Accordingly, I am satisfied and find that Respondent, by threatening employee-members with citation for trial, fines, and loss of membership, and by trying and fining employee-members, for refusing to obey Respondent's orr'4°rs not to collect cash in violation of the collective-bargaining contract between Respondent and Nabisco, restrained and coerced employees in violation of Section 8(b)(a)(A) of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: 4 NLRB v Allis-Chalmers Mfg Co, 388 U S 175 (1967). 5 Local 12419, United Mine Workers, 176 NLRB No 89 (1969) 6 Scofield (Wisconsin Motor Corp) v. N L R B, 394 U.S. 3 (1969) r Fn 5, supra 8 Fn 6, supra 9 In the event no exceptions are filed as provided by Section 102 46 of CONCLUSIONS OF LAW 559 1. Nabisco is an employer engaged in commerce, and Respondent is a labor organization, within the meaning of the Act. 2. By refusing to bargain with Nabisco on and after September 2, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 3. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Order recommended below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, its officers, agents and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with National Biscuit Company, by unilaterally modifying the terms and conditions of the existing collective-bargaining contract or refusing to be bound by the provisions of the existing collective-bargaining contract, without complying with the requirements of Section 8(d) of the Act. (b) Threatening employee-members with union trial, fines, loss of membership or other discipline, for refusing to comply with its orders not to collect cash or otherwise not to comply with the requirements of an existing collective- bargaining contract covering such employees. (c) Conducting union trials or fining employee-members for refusing to comply with its orders not to collect cash or otherwise not to comply with the requirements of an existing collective-bargaining contract covering such em- ployees. (d) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Reimburse or refund to George Dalberti the $175 fine the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Order recommended herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid by him, plus interest at the rate of 6 percent per annum.I0 (b) Post in conspicuous places at its offices, meeting halls, and all places where notices to members are customarily posted, and at the Emeryville warehouse of National Biscuit Company, if the Company is willing, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and main- tained for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.12 io Booster Lodge No 405, IA M, 185 NLRB No. 23 (1970). 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 12 In the event that this recommended Order is adopted by the Board after exceptions have been filed, notify said Regional Director, in writing, within 20 days from the date of such Order, what steps Respondent has taken to comply therewith APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with National Biscuit Company, by unilaterally modifying the terms and conditions of our existing collective- bargaining contract or refusing to be bound by the provisions of our existing collective-bargaining con- tract, without complying with the requirements of Section 8(d) of the Act. WE WILL NOT threaten employee-members with union trial, fines, loss of membership or other disci- pline, for refusing to comply with our orders not to collect cash or otherwise not to comply with the requirements of an existing collective-bargaining con- tract covering such employees. WE WILL NOT conduct union trials or fine employee- members for refusing to comply with our orders not to collect cash or otherwise not to comply with the requirements of an existing collective-bargaining con- tract covering such employees. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL reimburse or refund to George Dalberti the $175 fine paid by him, plus interest at the rate of 6 percent per annum. Dated By BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LocAL No. 70, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.