Lorenz Schneider Co., Inc.

LORENZ SCHNEIDER CO., INC. 181 Lorenz Schneider Co., Inc. and Independent Route- men's Association . Cases 29-CA-2884 and 29- CA-3073 January 7, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO ty to call and examine witnesses, and to adduce relevant and material evidence. At the close of the hearing, all parties waived oral argument. Briefs have been received from the General Counsel and the Respondent. On the entire record in this case, and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT On September 28, 1973, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On May 23, 1972, Independent Routemen's Association, hereinafter called the Union, filed a charge with the Regional Director for Region 29 of the National Labor Relations Board, hereinafter called the Board, alleging that Lorenz Schneid- er Co., Inc., hereinafter called Respondent, by various acts and conduct violated Section 8(a)(1), (2) and (4) of the National Labor Relations Act, as amended. On October 13, 1972, the Union filed a second charge against Respondent, alleging violations of Section 8(a)(1), (3) and (4). On June 25, 1973, the said Regional Director on behalf of the General Counsel of the Board issued a complaint, alleging the Respondent violated Section 8(a)(3) of the Act by purchasing the route of its employee, John Stockton, and by that act and by various other acts and conduct violated Section 8(a)(1) of the Act. By its duly filed answer, Respondent denied the commission of any unfair labor practices. On the issues thus joined, the matter came on for hearing before me on August 13, 1973. All parties were present and represented by counsel and had an opportuni- 1 The Union having apparently won the election resulting from the Board's order, a refusal-to-bargain charge has been filed, complaint issued Respondent is a New York corporation engaged, in various places in New York, in the sale and distribution of food products. Respondent annually imports goods and material valued in excess of $50,000 directly in interstate commerce from States of the United States other than the State of New York. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION Respondent denies that the Independent Routemen's Association is a labor organization. I take judicial notice of a Decision of the Board (203 NLRB No. 45) ordering an election among Respondent's employees to determine whether the Union shall be certified as the representative of Respondent's employees. In that Decision, the Board adopted the Decision of the Regional Director, in which a finding was made that the Union is indeed a labor organization within the meaning of the Act and that the employees here concerned, the so-called independent routemen, are employees within the meaning of Section 2(3) of the Act. I deem this finding binding on me in the instant proceeding and I adopt it.i III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Until 1967, the driver-salesmen or routemen of Respon- dent were represented by Local 802 of the International Brotherhood of Teamsters, Chaueffeurs, Warehousemen and Helpers of America. In 1967, the Respondent attempted to change the status of its routemen to independent contractors and sold the rights to sell and deliver the products handled by Respondent to the incumbent employees who wished to buy such routes. Thereafter, Local 802 no longer represented the employees. In March 1972, some of the routemen formed Independ- ent Routemen's Association, which thereafter retained counsel and commenced the representation proceeding referred to above. The reaction of Respondent to this action on the part of its routemen was to contest the status of the routemen as employees, contending that they were independent contractors within the meaning of the Act. In the course of proceedings, some statements were made and actions taken by the Respondent which are alleged by the General Counsel to violate Section 8(a)(1) and (3) of the Act. and answered and the matter is presently before the Board on the motion of the General Counsel for summary j udgment 208 NLRB No. 44 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Purchase of the Route of John Stockton Around the middle of April, John Stockton, one of the routemen, complained to his supervisors that he feared he was going to lose the business of a number of chain stores on his route and feared that he would not receive adequate recompense under his contract for the reduced value of his route, in terms of both its intrinsic value2 and its value as a source of income. Stockton's sales manager asked him for a list of the stores that he feared he would lose so that he could check it out and find out if there were any basis for the fears. At this time, Stockton informed the sales manager that he had been looking for a buyer for his route for some time and that he had "had it up to here." The sales manager responded, in effect saying, "If you don't like it, why don't you sell out." There is an issue whether this statement was made before Stockton's statement that he had been looking for a buyer for some time. I find it unnecessary to determine who first suggested selling out. It is clear that Stockton had already at that time been looking for a buyer with the intention of selling his route. Stockton's complaints were taken to the vice president of the corporation, Price, who immediately checked to find whether there was anyone interested in buying Stockton's route. According to his testimony, he learned of a delicatessen owner who was interested in buying a route. Price contacted Stockton and told him that the Company would buy back his route and that he had a buyer for it. Stockton prepared the necessary papers and Respondent bought the route. Stockton testified that, as he passed the sales manager's office immediately after Price told him that he would buy the route, he heard Price say, in effect, that Respondent had gotten rid of one of the association members. This is vehemently denied by all the members of supervision whom Stockton placed at this point concerning which he testified. I find no violation in the above set of circumstances. There is no evidence that Stockton was known by Respondent to be a member of the Union or that he had engaged in any activities on behalf of the Union. Nevertheless, assuming that Respondent knew of his union membership and activities, it is clear that the decision to quit his employment was Stockton's; it was not until after he indicated to Respondent that he wanted to leave his employment and sell his route that Respondent agreed to buy it. The subsequent statement attributed to Respon- dent's officers by Stockton adds nothing to the picture. Assuming that Respondent knew of Stockton's union advocacy, if such there were, it is not an unfair labor practice for Respondent to be happy to get rid of a union advocate. I find that Stockton's sale of his route was no different than the normal voluntary quitting of an employee, and the purchase of the route by Respondent, even though, as General Counsel suggests, such repurchase 2 The value of the route is computed by the application of a standard, not set forth in evidence, based on the number of stops, or retail stores serviced by the route, and the normal business therein An employee who buys or sells a route normally pays a figure computed by this formula In is unusual, constitutes no unfair labor practice. According- ly, I recommend that this allegation be dismissed. C. The 8(a)(1) Allegations Routeman Otto testified that Assistant Sales Manager Blumberg stated to him in essence that he was a fool to pay $2,000 to a lawyer to represent the association, that the lawyers never did anything for Frito Lay and would not for the Association. Blumberg went on to suggest, according to Otto, that, if he were so unhappy in his job, why didn't he go elsewhere. Blumberg denied any conversation regarding the association with any employee, although he testified that in May he learned from conversation among the drivers that they had hired a lawyer, who Blumberg knew to be the lawyer who had represented a competitor's drivers, and, indeed, Blumberg even knew that the lawyer was being paid a $10,000 retainer. Blumberg testified that talk concerning the Union was commonplace among the drivers in the salesroom in which he spent most of his time, but that he never entered into any conversation with them. I credit Otto, but I find nothing in the statements he attributed to Blumberg that, under the circumstances herein, constitutes interference, restraint or coercion of any of the employees. Nor do I find that the fact that Blumberg made such a statement would necessarily convey to the employees to whom he made the statement the impression that Respondent was engaging in surveillance of their union activities. These employees openly spoke of their union activities in Blumberg's presence; he so testified without contradiction. Accordingly, I recommend that the allegations that Blumberg's statements were violative be dismissed. Stockton testified that, in the discussion of his grievances with members of supervision, Edward Zuba, Respondent's sales manager, told him that neither his lawyer nor the association could help him. This is also alleged to be a violation of Section 8(a)(1). Zuba, as well as Price, who was present, denied that this statement was made. In Stockton's affidavit given on June 14, 1972, a month after the occurrences, no mention is made of such a statement. Asked about this on cross-examination, Stockton testified that he gave the affidavit, which comprises five and one half handwritten pages, in 10 minutes and did not think to mention this statement by Zuba. I discredit Stockton; I don't believe that this statement was made. Accordingly, I recommend that the complaint be dismissed with regard to this statement. Before the sale of Stockton's route, he had a conversa- tion with fellow employee William Blatt in which the two employees in the presence of members of supervision complained about the conditions on their route, the possibility of the route losing value because of the loss of customers not attributable to their activities, and the possible failure of Respondent to recompense them for such loss. On May 3, Vice President Price addressed a letter to Blatt, stating: the two instances which appear in the record , the "value" of the routes, which is to say the amount paid for them , was computed at something in excess of $22.000 for one , and $19,000 for the other. LORENZ SCHNEIDER CO., INC. 183 Dear Bill: It has come to my attention that you are most dissatisfied with your distributorship, although I recall how anxious you were to get it. I understand you are constantly complaining about it to other men. You have done this to the extent that some men have come to our different personnel and stated that you are a real pain in the neck and annoy them with your bellyaching and complaints. This being the case it seems the only sensible thing for you to do is come and see me so that we may make arrangements for the sale of your route. It doesn't make sense to have someone working at something that makes them so unhappy, especially when he doesn't have to. Awaiting your call- The General Counsel appears to complain that this letter constitutes interference, restraint and coercion of employ- ees in their union activities. There is no question that in fact Blatt had expressed his dissatisfaction with his working conditions to other employees and in the presence of supervision. There is no evidence that this expression of dissatisfaction was in any way tied with the Union or that this letter was in any way a reference to the Union. There is no evidence that Blatt was known to be a union adherent. I do not believe that it is violative for an employer to tell a dissatisfied employee that it will assist him in quitting if he so desires; this is no more than I can infer from the language of the letter. I recommend that the complaint be dismissed insofar as this letter is alleged to be violative of the Act. Driver Fred Mockel testified that Vice President Price came up to him on the loading dock and gave him congratulations on "winning" $100, going on to say that he heard that Mockel was no longer a member of the association. On cross-examination, Mockel testified that he had sent a check for $100 to the association and had gotten it back because it was made out wrong. Price testified that, in a meeting in his office with Mockel and another employee (who had come in to inquire about what had taken place at an employee meeting which they had not attended on the advice of the Union's lawyer), Mockel said that he got back the check he had sent to the Union because it was made out wrong and that he felt fortunate and that he would not submit it again. Price denied making the statements attributed to him by Mockel. Mockel testified that he did not recall meeting with Price in his office and making the statement attributed to him by Price. This is alleged by the General Counsel both as interrogation and interference with employees and as a creation of the impression of surveillance by Respondent. In the absence of a direct denial by Mockel that he had told Price about getting his check back, I credit Price. This being the case, as I have discussed above, I do not believe that this necessarily conveys any impression in Mockel's or anyone else's mind that Respondent had engaged in surveillance. If Mockel told Price the information that Price allegedly congratulated Mockel about, Mockel would know full well where Price got the information and that no surveillance was involved. Mockel testified that he did not resign from the association and never told anybody that he had done so. The General Counsel does not suggest where Price might have gotten such information. If Price were indeed engaging in surveillance, presumably information he got would have been to the contrary of the statement attributed to him. I believe that Mockel's memory is faulty and that he told Price about getting back his check to the Union and that he would not or might not send another check, and I have no doubt that Price congratulated him at the time. However, I find no interference, restraint or coercion in this exchange between Mockel and Price, and I recom- mend that the complaint be dismissed insofar as it alleges this to be a violation. The General Counsel adduced evidence from Stephen Rothberg that in 1972, after the union organization started, the Company asked him to sign a contract for a route for which he had exchanged another route in 1970 or 1971. Rothberg admitted he had not signed a contract in the past but had been told in 1971 that it was not necessary to sign a new contract. There is no evidence that this action by the Company was attributable in any way to the union membership of Rothberg, if indeed he were a member, or that it was in any way discriminatory or coercive. There is no evidence that any other employee ever had a route without having a contract with Respondent. The General Counsel also adduced evidence from employee Thomas Judge that in 1972 he was asked by Respondent to get mortgage life insurance to protect the Company in the event he died before he paid off the mortgage he had signed on the route he had purchased. Judge did not know whether the contract he had signed called for him to get mortgage insurance but testified that, other than a mention of it in the negotiations to buy his route, no one insisted that he have mortgage insurance immediately. There are contracts in evidence signed by Rothberg in 1972 that contain no reference to mortgage insurance, however, there is no evidence that identical contracts were used in all ,ales or whether the contract signed by Judge calls for mortgage insurance. Equally there is no evidence that Respondent knew of Judge's union activity, if he engaged in any, or that the request for him to purchase mortgage insurance was attributable thereto. I find that the incidents involving Rothberg and Judge do not constitute unfair labor practices within the meaning of the Act. They are not specifically alleged in the complaint and they appear to have no relationship to the union activities of either of these men. I recommend that these allegations be dismissed. CONCLUSION I have concluded that all of the unfair labor practices alleged in the complaint are unsupported by sufficient evidence on the record as a whole. ORDER Accordingly, I recommend that the complaint be dismissed in its entirety.