Brewery Delivery Employees, Local 46

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brewery Delivery Employees, Local Union 46, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and L & V Distributors, Inc. Case 29-CC-293 July 11, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 17, 1972, Trial Examiner John P. Von Rohr issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Brewery Delivery Employees, Local Union 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Brooklyn, New York, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN P. VON ROHR, Trial Examiner: Upon a charge filed on August 5, 1971, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29 (Brooklyn, New York), issued a complaint on October 29, 1971, against Brewery Delivery Employees, Local Union 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Respondent or the Union, alleging that it had engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii), (B) of the Act. The Respondent filed an answer denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held on February 17 I The General Counsel's unopposed motion to correct the transcript, which is dated March 24, 1972, and which has been placed in the formal and 24, 1972, in Brooklyn, New York, before Trial Examiner John P. von Rohr. All parties were represented by counsel and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were received from the General Counsel and the Respondent on March 27, 1972, and they have been carefully considered.' Upon the entire record in this case and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS L & V Distributors, Inc., herein called L & V, is a New York corporation, with its principal office and place of business located in Brooklyn, New York, where it is engaged in the retail and wholesale and distribution of beer, soda, and related products. During the 12 months preceding the hearing, L & V received goods and materials valued in excess of $50,000 which were shipped to it from points and places outside the State of New York. Rheingold Breweries, Inc., herein called Rheingold, is a New York corporation with its principal office and place of business located in Brooklyn, New York, where it is engaged in the manufacture, sale, and distribution of beer. It annually receives goods and materials from points and places located outside the State of New York valued in excess of $50,000. The Respondent concedes, and I find, that L & V and Rheingold are engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Brewery Delivery Employees, Local Union 46, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts L & V Distributors, Inc., herein called L & V, is engaged in the selling of beer and soft drinks to such customers as grocery stores, bars, catering halls, and the like. Maintain- ing its own trucks for various deliveries to its customers, as well as for occasional pickups of beer from other New York state distributors, L & V's truckdrivers and general helpers are covered by a collective-bargaining agreement between L & V and Local 295C, International Union of Operating Engineers, hereinafter called Local 295C. In business for 2 or 3 years, L & V has always purchased Rheingold and Schaffer beer from the particular breweries of these companies which are located in Brooklyn, New York. Deliveries are made from each of these breweries directly to L & V, the delivery employees of each of these breweries being contractually represented by the Respon- dent Union. Although approximately 85-90 percent of the Rheingold and Schaffer beer sold by L & V is thus files of this proceeding, is hereby granted. 198 NLRB No. 33 BREWERY DELIVERY EMPLOYEES, LOCAL 46 143 procured directly from the respective breweries, the remaining 10-15 percent is purchased at a cheaper cost from various distributors located throughout New York State. The employees of the latter distributors are not represented by the Respondent. The first contact between L & V and Respondent occurred in early June 1971,2 at which time Respondent Business Agent William Hoffnagel and two other repre- sentatives came to the L & V premises and spoke to John Valentino, the secretary and general manager of L & V. According to the credited and undemed testimony of Valentino, Hoffnagel at this time told him that Respondent was having trouble with him, adding that "We have the contract to deliver all beer in New York, and you cannot deliver beer." Advising Hoffnagel that he would contact his own union, Valentino shortly apprised Casper Valenti, president of Local 295C, of what had occurred. The next day Valenti made a telephone call to Respondent's office and spoke to someone who identified himself as a business agent.3 After a preliminary discussion, Valenti was told by the business agent that "L & V was making deliveries to certain stores and picking beer from upstate." Valenti responded that Local 295C had a contract with L & V and that he would file a charge against Respondent if any picketing ensued. The conversation grew heated, with the business agent finally stating, "We are going to go ahead and do what we please." On June 24, while an L & V truck was being unloaded by L & V employees in front of its premises, a group of about 20 Schaffer delivery employees, who were identified by Valentino as such by their uniforms, came to the front of the premises and began shouting various epithets and statements such as "What did you do, steal that beer:" They remained and continued in this conduct for several hours, until dispersed by the police.4 On or about June 28 a picket line was established at the L & V premises .5 The 15 pickets who were present included Dominic Acceta, a Respondent shop steward employed at Schaffer. The legend on the picket sign stated: L & V is delivering beer and taking work away from our men. Brewery Delivery Workers Union Local 466 The picketing at L & V lasted for approximately 2-1/2 hours. In' addition to the incident described below, Valentino credibly testified that during the picketing a truck of another distributor, Form B Brothers, appeared to make a delivery but did not stop to do so. Additionally, Valentino testified that during the picketing Shop Steward Acceta told him that L & V was putting Local 46 members out of work because L & V was engaged in delivering beer. He said he responded by telling Acceta that his employees also were union members. It is undisputed that a Rheingold truck was being 2 All dates hereinafter refer to 1971 3 Hoffnagel left his card with Valentino This was given to Valenti when he called Respondent's office. I credit Valenti's testimony concerning this conversation 4 The above incident is set forth in accordance with the credited and uncontroverted testimony of Valentino 5 While there is some conflict in the testimony as to the exact date of this p unloaded when the above picketing began and that only about 70 of the 300 cases scheduled for delivery at L & V had been unloaded at the time. Upon the pickets' appearance, the driver of the Rheingold truck, one Mancuso, called Francis Kosiczky, the Rheingold traffic coordinator, advised him of the picketing, and stated that he could not continue making the delivery. Kosiczky reported this to Paul Weinchenk, the traffic manager, whereupon Weinchenk called Respondent's office. Wein- chenk, whose testimony I credit, testified that he spoke to a business agent, whose name he could not recall, but with whom he dealt with concerning union business on previous occasions. After relating what had transpired as reported to him by Kosiczky, Weinchenk asked if he could have permission to finish the delivery at L & V. Weinchenk testified, however, that the business agent denied this request. Truckdnver Mancuso was thereupon contacted and given instructions to return to the plant. Later that same morning, as related by the uncontroverted testimony of Kosiczky, Steve Regan, one of four Rheingold shop stewards, advised Kosiczky that the reason for Respon- dent's not permitting Mancuso to make the delivery to L & V was because L & V was getting deliveries from other than Local 46 men. On the same day of the picketing, but after it had ceased, President Valenti of Local 295C called Respondent's office and this time spoke to Neal Bona, president of Respon- dent Local 46. Valenti protested the picketing and stated that he would file charges. According to Valenti, who impressed me as a credible witness, Borra at this time told him, inter alia, that he "would go through other areas in trying to stop these deliveries being made to these stores and stop him from going upstate to pick up beer"; that he would go to the breweries to stop deliveries of beer and that if they did not give him any satisfaction that he would get back to him [Valenti] and let him know what other steps he would take; and that he would go to the store owners and tell them that they would not get any deliveries if they continued to purchase beer from L & V. On the day following the picketing, June 29, Weinchenk received a call from one of Respondent's business agents. Although Weinchenk could not recall the name, he testified that the business agent advised that it was "all right to make deliveries to L & V." However, according to the undenied testimony of L & V Manager Valentino, about this time Schaffer Shop Steward Acceta came to his premises with another driver and told him "You know, John, you could stop us from putting picket lines here, but you still are not going to get any deliveries of beer." Further, shortly after June 29 Union Representative Valenti again spoke to Respondent Representative Borra picketing, I regard this as immaterial and as not reflecting upon the credibility of any of the witnesses Suffice it to note that Neal Borra, president of Respondent, conceded that one of his officers advised him that picketing had occurred about this time 6 The Respondent does not deny that its name appeared on the sign, although it may have appeared in somewhat different form than testified to by Valentino 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over the phone concerning another delivery problem involving L & V.7 Valenti credibly testified that on this occasion Bona stated that, if L & V continued to make deliveries to its customers or if it continued to pick up beer from other New York State distributors, the Respondent would put up picket lines and go to the store owners and advise them that they would not get any deliveries of beer.8 I turn now to a second incident, which occurred on or about July 1, involving alleged secondary interference by Respondent of beer deliveries to L & V. On this date, L & V was scheduled to receive deliveries of two truckloads of Rheingold beer. Pursuant to customary practice, these loads, with others, were readied for delivery at the docks of Rheingold's Brooklyn brewery where they were to be picked up by Rheingold's drivers at 6:20 a.m., the starting time. According to the undisputed testimony of Traffic Coordinator Kosiczky, Shop Steward Reagan came to him after starting time and stated that he was "not letting" the L & V shipment go out because L & V was receiving deliveries from non-Local 46 members. It is further undisputed that the loads of Schaffer beer destined for L & V did not go out that morning, as scheduled. The testimony of various witnesses, including Valenti and David Conroy, Respondent's recording secretary, as to what transpired thereafter is quite confusing.9 However, Conroy did concede that he was informed by Reagan that the beer scheduled for delivery to L & V did not go out that morning. Conroy, together with Union Representative Hoffnagel, thereupon went to the L & V premises where, according to Conroy, they ascertained that beer was on the premises which had originated from Rheingold's Orange brewery, rather than from the Brooklyn brewery. Conroy testified that he thereupon spoke to "a guy who was in charge" at L & V10 and told him "there's your chronic problem right here, the aluminum cans came from Jersey." 11 According to Conroy, this individual responded, "Yes, but we are not going to do it no more, we are going to be straight, we are supposed to have everything ironed out, we are not going to play the games, but get the beer to me, I need it, it is the Fourth of July weekend." Aside from other confusing testimony which need not be related here, it is undisputed that the two loads of beer scheduled for L & V which Respondent's drivers would not pick up that morning were finally delivered by them to the L & V premises late in the afternoon of that same day. In this connection, Traffic Manager Weinchenk testified that he first received a call from Conroy around noon in which Conroy said it would be alright to send the beer to L & V the following day. However, according to the credited testimony of Weinchenk, Conroy appeared at the brewery later that afternoon and at this point personally spoke to the drivers and saw to it that they picked up the beer for delivery to L & V.i2 B. Conclusions To recapitulate, the two incidents specified in the complaint, as amended at the hearing, wherein Respondent is alleged to have engaged in unlawful secondary activity are: (1) The picketing by 15 individuals, including Respon- dent Shop Steward Acceta, at L & V's premises on June 28; and (2) The refusal of Rheingold employees on or about July 1, at the behest of Respondent Shop Steward Steve Reagan, to pick up the two loads of beer at the brewery for delivery to the L & V premises.13 At the hearing Respondent indicated that one of its defenses to this case would be premised on the contention that it cannot be held responsible for the acts and conduct of its shop stewards, Reagan and Acceta. However, Respondent did not pursue this contention in its brief other than to state that there was an absence of evidence "to the effect that Local 46 interfered with deliveries ... . Whatever Respondent's contention in this regard, upon the entire record I am satisfied and find that the conduct of Reagan and Acceta, in the respective incidents in which they were involved, came within the scope of their apparent authority and that Respondent must be bound thereby. i4 With respect to incident numbered (2), above, I also reject Respondent's contention that it only sought to protect delivery work traditionally performed by its Rheingold bargaining unit members and that its activities toward this end were primary in objective.15 From the facts heretofore related, I think it perfectly clear that Respon- dent engaged in unlawful secondary activity by its inducement of employees at the Rheingold brewery. That L & V was the primary target of Respondent's dispute is clearly manifested by such statements, for example, as Shop Steward Acceta telling Valentino that "L & V was putting Local 46 members out of work because L & V was engaged in delivering beer," or by Reagan's telling Kosiczky that "L & V was getting deliveries from other than Local 46 men," and by Borra's telling Valenti "that Respondent would put up picket lines if L & V continued r From the testimony of Kosiczky , it appears that this problem arose because of a manpower shortage. Apparently this was not conveyed to Valenti at the time of this call 8 Concerning this conversation, Borra conceded asking Valenti "if it was possible for him to get his client , in view of the fact and the disturbances that it was causing, to see if he could stay in business and do business without making deliveries." Borra, who left for Florida shortly after this conversation, also testified that he "thought" that during this conversation he had reached agreement with Valenti that L & V would stop making deliveries 9 Borra having left for Florida , Conroy was placed in charge during his absence io This individual was not further identified 11 Borra testified that Rhemgold beer in aluminum cans originate only from the Orange, New Jersey, brewery 12 In fact, Conroy at this time waived a union rule from taking out a double load at a time-and-a-half rate. 13 Since Reagan did not deny (he did not testify) telling Kosiczky on this occasion that he was "not letting" the drivers deliver the beer, as Kosiczky testified, it is clear, as I find and state above, that the drivers refused to do so at his behest. 14 For a comprehensive discussion involving parallel cases where unions have been found to be responsible for the acts and conducts of union stewards, see United Brotherhood of Carpenters & Joiners of America, Local 2067 (Associated General Contractors and Batterman Construction, Inc), 166 NLRB 532, 538-541 15 In support of this contention Respondent points to part VII (A) of its contract with Rheingold which provides as follows. The Employer shall not transfer any of its delivery or haulage operations now performed by its employees covered by this Agreement, or sub-contract or contract out such work on any terms whereby such work is performed by other than its employees BREWERY DELIVERY EMPLOYEES , LOCAL 46 to make deliveries to customers or if it continued to pick up beer from other distributors." Further indicative that Respondent's dispute was with L & V was the very picketing of L & V's premises on June 28, as well as the language displayed on the picket signs at that time. Accordingly, since the evidence reveals that L & V was the primary employer, I find that Respondent violated Section 8(b)4(i) and (ii)(B) by causing its members to refuse to pick up and deliver the two loads of beer to L & V on July 1. It is clear that by this conduct an objective of Respondent was to have Rheingold cease doing business with L & V.16 In accordance with an amendment to the complaint made at the hearing, the General Counsel additionally contends, as asserted in his brief, that "the picketing of the L & V premises on June 28 took place with an object of having L & V cease doing business with various distribu- tors located throughout New York State, the primary on this second theory, in furtherance of Respondent's dispute with said distributor's over their causing Rheingold and Schaffer beer not handled by Respondent's members to be sold to L & V for its distribution to retail outlets within the New York City area." Thus, with respect to the picketing referred to in incident numbered (1), above, General Counsel here would have L & V as the secondary employer, alleging the New York State distributors in this instance to be the primary targets of Respondent's dispute. In my view, the evidence does not sustain this second contention. As indicated in the evidence heretofore discussed, Respondent was engaged in a primary dispute with L & V because this employer was utilizing its own employees to make deliveries and pickups of beer. While it is true that several statements were made by Respondent representatives to the effect that it also objected that deliveries were being made by New York State distributors (with their employees) to L & V, the language on the picket sign during the June 28 picketing at L & V stated only "this place is delivering beer and taking work away from our men" (emphasis supplied). Such language, in my opinion, again demonstrates that Respondent's primary dispute was with L & V, not with other employers. Moreover, if Respondent in fact had a primary dispute with the New York State distributors, it is indeed peculiar that there is no evidence whatsoever to indicate that it ever approached any of these distributors to voice any complaints against them. Finally, it is noteworthy that Valentino conceded that most of the beer which he procured from New York distributors was picked up by his own employees and that deliveries made to him by the distributors were minimal. In view of the foregoing, and upon the entire record in this case, I find that the General Counsel has not established by a preponderance of the evidence that Respondent engaged in the unfair labor practices alleged in the amendments to the complaint pertaining to the June 28 picketing. Accordingly, it is recommended that the allegations pertaining to this conduct be dismissed. 16 It is immaterial that Respondent has not sought to organize L & V's drivers or that it did not seek recognition from L & V Lafayette Building and Construction Trades Council (Texaco, Inc), 176 NLRB 979, Washington- Oregon Shingle Weavers' District Council (Sound-Shingle Co), 101 NLRB 1159, enfd 211 F.2d 149 (CA 9) 17 In the event no exceptions are filed as provided by Sec 102.46 of the IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 145 The activities of the Respondent set forth in section III, above, occurring in connection with the employers' operations 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Brewery Delivery Employees, Local Union 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 2. L & V Distributors, Inc., and Rheingold Breweries, Inc., are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By inducing and encouraging employees employed by Rheingold to engage in a strike or refusal to perform services in the course of their employment, Respondent has engaged in violations of Section 8(b) 4(i)(b) of the Act. 4. By threatening, coercing, and restraining Rheingold with the object of forcing or requiring Rheingold to cease doing business with L & V Distributors, Inc., Respondent has engaged in violations of Section 8(b)4(ii) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. 6. Respondent has not engaged in the unfair labor practices alleged in the amendments to the complaint. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: 17 ORDER Respondent, Brewery Delivery Employee Local Union 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from engaging in, or inducing or encouraging any individual employed by Rheingold Breweries, Inc., or by any other person engaged in commerce or in an industry affecting commerce to engage Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations , and recommended Order herein shall, as provided in Sec 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 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in, a strike or refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any service, or threatening, coercing, or restraining Rheingold Breweries, Inc., or any other person engaged in commerce or in an industry effecting com- merce, with the object of forcing Rheingold Breweries, Inc., or any other person to cease doing business with L & V Distributors, Inc. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix".18 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other materials. (b) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.19 IT IS FURTHER RECOMMENDED that the complaint be dismissed as to any other unfair labor practices alleged but not herein found. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in , or induce or encourage individuals employed by Rheingold Breweries, Inc., or any employer other than L & V Distributor, Inc., to engage in, a strike or refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform any services, or coerce or restrain Rheingold Breweries, Inc., or any other person engaged in commerce or industry effect- ing commerce, except L & V Distributors, Inc., with the object of forcing Rheingold Breweries, Inc., or any other person to cease doing business with L & V Distributors, Inc. 18 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 19 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." Dated By BREWERY DELIVERY EMPLOYEES, LOCAL UNION 46, 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, Fourth Floor, 16 Court Street, Brooklyn, New York 11201, Telephone 212-596-3535.