Pepsi-Cola-Bottling Company of Washington, D.C., Inc.

PEPSI-COLA BOTTLING COMPANY Pepsi-Cola Bottling Company of Washington, D.C., Inc. and Brewery and Beverage Drivers, Inside Workers, Vending Machine Servicemen and Helpers Local Union No. 67 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 5-CA- 13780 February 8, 1983 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER On September 30, 1982, Administrative Law Judge Sidney J. Barban issued the attached Deci- sion in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to the Re- spondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Pepsi-Cola Bot- tling Company of Washington, D.C., Inc., Chever- ly, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, furnish to Brewery and Beverage Drivers, Inside Workers, Vend- ing Machine Servicemen and Helpers Local Union No. 67 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, the information and docu- ments sought by the Union in its letters to the Company dated April 8 and September 1, 266 NLRB No. 27 1981, including information and documents re- lating to the Company's sales to Macke, B. K. Miller, United Drugs, Meyers Tobacco, K & P Enterprises, Williams Enterprises, and Mar- jack, and other similar wholesalers, for which commissions have not been paid as required by the bargaining contract, including the prices charged to those wholesalers, and the resales of the Company's products by those wholesal- ers to other vendors. PEPSI-COLA BOTTLING COMPANY OF WASHINGTON, D.C., INC. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This matter was heard at Washington, D.C., on July 8, 1982, upon an amended complaint issued on April 15, 1982 (based on a charge filed on October 7, 1981). The com- plaint alleges that Brewery and Beverage Drivers, Inside Workers, Vending Machine Servicemen and Helpers Local Union No. 67 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein the Union Charging Party), the bargain- ing representative of an appropriate unit of employees of Pepsi-Cola Bottling Company of Washington, D.C., Inc. (herein Respondent), by letter dated September 1, 1981, requested Respondent to furnish the Union with certain information relevant to, and necessary for, the processing of grievances under the current collective-bargaining agreement between Respondent and the Union, and for the administration of that agreement, which information, it is alleged, Respondent refused to furnish, in violation of Section 8(aXl) and (5) of the National Labor Rela- tions Act, as amended (herein the Act). The answer to the complaint denies the unfair labor practices alleged, but admits allegations of the complaint sufficient to justi- fy the assertion of jurisdiction (Respondent, engaged at Cheverly, Maryland, in the production and sale of soft drinks, during a recent annual period, sold and shipped from that facility products valued in excess of $50,000 to points located outside the State of Maryland), and to support a finding that the Union is a labor organization within the meaning of the Act. Upon the entire record in this case, and after due con- sideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS AND CONCLUSIONS A. Introduction Respondent bottles Pepsi-Cola at its plant in Cheverly, Maryland, and distributes its products in the Washington, D.C., metropolitan area in large part by employees re- ferred to in the current bargaining agreement between the parties as "route sales personnel" (herein called, 109 DECISIONS OF NATIONAL LABOR RELATIONS BOARD briefly, routemen). t In very substantial part these route- men are paid by commission on sales and deliveries of Respondent's products. Beginning in April 1981, officers of the Union began receiving complaints from union members that Respondent, in essence, was selling its products to wholesalers at such low prices that the wholesalers were able to resell those products to custom- ers who otherwise would have purchased from the routemen, thus eliminating the commissions which the routemen would have received on such sales. On August 17, 1981, two routemen filed grievances concerning these alleged lost commissions. As set forth in more detail hereinafter, the Union had several meetings and conver- sations with management officials concerning these com- plaints, and on two occasions made written requests of Respondent for information concerning Respondent's sales to, and contractual relations with, such wholesalers, which Respondent has rejected. The Union has advised Respondent that it desires to take the two grievances to arbitration, but the procedure has remained at a standstill, the Union contending that they need the information sought from Respondent to decide whether the grievances have sufficient merit to justify further formal proceedings. B. Meetings with Respondent; Requestsfor Information 1. The April meeting After receiving complaints from union members that they were being deprived of commissions by Respond- ent's activities, Lawrence E. Waters, secretary-treasurer and business agent of the Union, and Roy R. Bowling, president of the Union, met with Norman Hayter, vice president of Respondent, with respect to the matter. This meeting took place in early April 1981. According to Waters, the following occurred: [WNe [Waters and Bowling] told him [Hayter] that we had a problem, that they [Respondent] were selling merchandise from the dock [i.e., Respond- ent's loading platform] to these wholesalers. And, in turn the wholesalers were selling the product to our customers, and our drivers are losing commission. . . . [Hayter] said that he knew that we had a prob- lem, and that he would try to stop it. He knew of the problem. Waters continued that one of the wholesalers "was par- ticularly discussed, and that was the Macke Vending Company. And he said he knew that we had a problem there, and that he would talk to [Don] Shelton over there." Waters stated that Hayter said that Respondent had already cut Macke off for 2 weeks "because of the resales that they were doing," and that Hayter stated ' The complaint alleges and Respondent admits that the following em- ployees of Respondent constitute an appropriate bargaining unit within the meaning of the Act: Drivers and route sales personnel, production employees including vending repair personnel, premix and installation people, truck serv- ice personnel and truck mechanics. This excludes office and clerical workers, helpers, managerial and supervisory employees, and officers of the Respondent. that he had, or would have, signed an agreement that Macke would not sell to customers of Respondent's routemen, and that Respondent was doing everything in its power to stop the practice. Bowling recalled that Macke was discussed at that meeting, and the fact that it was selling Pepsi to one of the customers normally served by Respondent's route- men; that Hayter said that it would be stopped; that Re- spondent had, or would, cut off Macke for 2 weeks; and that Hayter had a form, which Macke had or would sign "that they wouldn't sell to these accounts any more." Hayter seems to recall that at this meeting or a subse- quent meeting, he stated (in response to a complaint about merchandise being found in a driver's territory) that "We've got a problem," but asserts that he was re- ferring to another problem, and thus not to the problem of resales by Macke or other wholesalers. He was not asked, and did not otherwise testify concerning this meeting. Upon consideration of the entire record, and my eval- uation of the witnesses, I credit Waters as set forth above. His account was detailed and circumstantial, and in substantial part confirmed by Bowling. Insofar as Hayter testified differently, I found his testimony un- impressive.2 2. The April 8 request for information By letter dated April 8, 1981, addressed to Hayter, at Respondent's place of business, Waters requested the fol- lowing information from Respondent: "All purchases by Macke, B. K. Miller, United Drugs and Meyers Tobac- co," by months, from October 1, 1980, to March 31, 1981; the same information from October 1, 1979, to March 31, 1980; the prices charged to those companies, by months, for the periods stated; the commissions paid, if any, to Respondent's employees for sales to such com- panies; and what, if any, of the products delivered to such companies were distributed to other employers, such as retail stores and liquor stores. The letter explained: What we are trying to determine is whether your company has purposely and deliberately tried to avoid our collective bargaining agreement and the obligation to pay commissions. It was never intend- ed that you could use one of the companies referred to above as a subterfuge to avoid commission, but this is precisely the problem with which we are now confronted. This request for information is sub- mitted in conjunction with our pending grievances which may result in arbitration. The information is necessary for purposes of collective bargaining. At the hearing, Waters explained in more detail that the Union needed the amounts of products Respondent s Hayter's testimony tended to be confused, and at times seemingly evasive and inconsistent. Thus, Hayter's testimony at the bottom of p. 159 and the top of p. 160 of the transcript apparently denying that Re- spondent had ever told the Union that Respondent had never sold to Makro, one of the wholesalers about which the Union complained, while at the bottom of p. 160, Hayter states that he himself told this to Waters and Bowling (he believes) at a time and place he does not seem to recall. 110 PEPSI-COLA BOTTLING COMPANY sold to the wholesalers since large increases in such pur- chases would indicate that the product was being resold to customers of the routemen, as the routemen were claiming. This claim might be further bolstered if the prices Respondent charged these wholesalers were low. 3 There was no written response to Waters' letter. How- ever, about 2 or 3 weeks thereafter, Hayter told Waters that there was nothing he could do about the request, that the Union would have to file a grievance and go through arbitration. 3. The written grievances On August 17, 1981, two routemen, David E. Kearn and William G. Bazemore, filed written grievances con- cerning their alleged loss of commissions on Respond- ent's product which was delivered to their customers. Bazemore's grievance states that he was "filing a griev- ance because K & P Enterprises are selling Pepsi Prod- ucts to the following accounts, Myers Deli, Reynolds Mkt, Ted & Slims Carryout, at a price below that which I am unable [sic] to sale [sic] them. And for which I am receiving no commission." Kearn's grievance states: "I would like to know why Makro Warehouse is receiving Pepsi Cola and Pepsi Products at their warehouse. I am not receiving commissions on these products and would like to know why, therefore, I am filing this grievance for the commission."4 4. The second request for information; the second meeting with Respondent After receipt of the employees' written grievances, Union President Bowling interviewed some 17 to 20 routemen and made a list of the accounts served by these drivers at which these men had found Pepsi-Cola prod- ucts which had not been sold by the routeman. Opposite most of the accounts on this list appear the names of wholesalers, which I infer were derived from the drivers' information as to the source of the products which they had observed. 5 The Union and Respondent met on these grievances on or about September 8. Prior to this meeting, Waters, for the Union, sent the following letter dated September 1, 1981, to Hayter: This Union believes that the Company is engaging in widespread and serious violations of the collec- tive-bargaining agreement. Specifically, the Union believes that the sales of Company products have been and are being made without commission being made to the route salesmen. In order for the Union to have all facts necessary and relevant to its evalu- ation of this assertion and to calculate commissions owed to our members, please make the following information available to the Union on or before our 3 Hayter's testimony indicates that Respondent did sell its product at various price levels. 4 Hayter's testimony was that Makro was receiving Respondent's prod- ucts from Macke. ' The wholesalers named are "United Drug," "Makro," "K & P Enter- prises," and "Marjacks." Some of the notes on the list indicate that the routemen were receiving their information from the customers. meeting scheduled for Thursday, September 8, 1981, 3:00 p.m. at your offices: 1. All information requested in my April 8, 1981 letter to you (copy enclosed). 2. All purchase orders from customers, bills of lading, invoices and/or other records which show the volume of sales, sales prices, date of sales, and description of products sold to all purchasers of company products for which commissions have not been paid to route sales personnel from April 1, 1981 to date, including but not limited to transac- tions with the following firms: a) Macke b) B. K. Miller c) United Drugs d) Meyers Tobacco e) K & P Enterprises f) Williams Enterprises g) Marjack 3. Sales agreements, contracts, and/or other doc- uments setting forth the terms of sale (and resale by the purchaser of Company products) between the Company and those firms listed above in 2(a) through 2(g) and all other firms to whom the Com- pany has sold products without having paid com- missions to route sales personnel for the period April 1, 1981 to date. Waters testified that the additional named companies were derived from information secured from the route- men, that the Union was asking for similar information concerning unknown companies because it appeared that new wholesalers were becoming involved in distributing Respondent's product during this period, and lastly, that the Union was seeking the information set forth in para- graph 3 to determine whether Respondent's contracts with these distributors violated the collective-bargaining agreement. Waters states that at the meeting with Hayter the latter again said that he knew that the Union had a prob- lem and he would try to correct it, but as to the griev- ances presented and the information requested, he would have to consult with Respondent's attorney who was not present. Hayter's testimony did not concern this meeting, except as has been noted. I credit Waters as to this meet- ing. Shortly thereafter, Hayter called Waters to inform him that Respondent's attorney had advised that Respondent not give the information sought to the Union. 5. Alleged confidentiality of information requested Though Respondent raises an issue as to the confiden- tiality of the information sought by the Union, it never- theless agrees that Respondent "has not at any time re- fused to provide the requested information simply be- cause of its confidential nature. The Company fully rec- ognizes that confidentiality cannot serve as an absolute 111 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excuse for non-disclosure. Nonetheless, Pepsi is entitled to withhold confidential material until its relevance is es- tablished. ... "(Br. pp. 4-5.) At another place, Re- spondent states that "the Company has already expressed its willingness to provide the requested data, "if an arbi- trator ultimately upholds the Union's grievance." (Br. p. 11.) C. The Bargaining Agreement The current collective-bargaining agreement between Respondent and the Union is effective from February 25, 1980, through February 26, 1983, subject to automatic renewal absent notification. With respect to the route- men's commissions, section 1, paragraph 1, of the agree- ment provides that, in addition to a certain amount of daily pay, "when merchandise is sold and delivered, salespersons shall be paid commissions as follows: [there follows a series of paragraphs providing for periodic in- creases in commission rates and other matters.]" Respondent contends that, although the contract does not specifically say so, this section should be read as if it stated that commissions shall be paid "when merchandise is sold and delivered by the salesperson," and not paid when the product is sold or delivered by anyone else. Hayter does admit that in certain circumstances Re- spondent has paid commissions to routemen who did not personally sell and deliver products, but asserts that this is a matter of Respondent's discretion. General Counsel's witnesses (union representatives), on the other hand, contend that by past practice the route- man receives commission on the product delivered to the routeman's present or potential customers (those in the area assigned to him to serve"), unless he is ill, or on va- cation, in which cases other rules apply. As noted, Respondent disputes this, and further main- tains that "the only past practice that exists is that it has been selling directly (e.g., without using driver-salesmen) to third-party vendors since the 1960s, and the Union has not complained about the practice." (Br. p. 3.) In elaboration of this contention, Respondent com- plains (br. p. 7) that it was prevented from showing that, in negotiations in 1977 for the collective-bargaining agreement preceding the current agreement, this issue was a point of controversy between the Union and Re- spondent, which assertedly was settled by a provision which is contained in the current bargaining contract (sec. I, par. I.F) which permits the Union to reopen the agreement if Respondent "changes to a warehouse-deliv- ery or dock pick-up system of distribution (1) for any retail-grocery-food-chain warehouse .... or (2) for any retail-drug-store-chain. .. ." I have carefully reconsidered the issue and adhere to the ruling made at the hearing. To the extent Respondent seeks to have me decide whether its interpretation of the bargaining agreement or that of the Union is correct, that would involve me in passing on the merits of the grievances, which is not my function here. 7 To the 6 Hayter denies that territories are assigned to routemen though Re- spondent maintains maps that appear to serve that purpose. Hayter says that the maps are used for other purposes. See also sec. 3, par. 5, "Grievances," of the bargaining agreement, which provides that, for the purpose of the grievance procedure, "A extent that Respondent contends that its evidence would show that the Union's grievances here are merely "frivo- lous," I find, on the basis of the entire record, and the matters set forth above, that the Union's grievances seem to be in good faith and are arguably substantial. Further, even if Respondent's offers of proof as to this past bargaining were accepted at face value, it would not, as Respondent seemed to claim at the hearing, show that the Union had clearly and unmistakably waived its right to raise the issues raised here. Analysis and Conclusions Respondent refuses to give the Union certain informa- tion requested by the Union as to Respondent's contrac- tual relations with and sales and prices charged to cer- tain wholesalers who buy Respondent's product, which the Union claims that it needs to determine whether to take two grievances to arbitration and to assist it in the administration of its bargaining agreement with Respond- ent,8 Respondent, asserting that the employees are not entitled to the commissions claimed under the agreement, if interpreted in light of what it says has been past bar- gaining and practice, refuses to give the information sought until an arbitrator has determined that the griev- ances have merit. In a variation of the same argument, Respondent asserts that it is entitled to consider the in- formation requested as "confidential" until such time as an arbitrator upholds the Union's grievances, or the rel- evance of the information is established. 9 It is well established that a labor organization which is obligated under the Act to represent employees in a bar- gaining unit with respect to the terms and conditions of their employment is entitled, by operation of the statute, upon appropriate request, to such information as may be relevant to the proper performance of that obligation, in- cluding the administration of a bargaining agreement and the determination of the merit of grievances filed under that agreement. See N.LR.B. v. Acme Industrial Co., 385 U.S. 432 (1967); Curtiss-Wright Corporation, Wright Aero- nautical Division v. N.L.R.B., 347 F.2d 61 (3d Cir. 1965). Thus, in Acme Industrial, the Supreme Court held that in requiring an employer to furnish information to a union (in that case for the purpose of determining whether to take grievances to arbitration), the Board acts "only upon the probability that the desired information is rele- vant, and that it would be of use to the Union in carrying out its statutory duties and responsibilities" (emphasis supplied). Here, Respondent argues that it should not be grievance is hereby defined to be any controversy . . . concerning the meaning and/or interpretation of this agreement .... " 8 The Union believes, on evidence from its members, that Respondent has become engaged in a practice whereby its product is being distribut- ed by wholesalers to vendors who are, or would be, normally served by Respondent's routemen (represented by the Union), at prices lower than the routemen must charge, thus depriving the routemen of commissions on such sales as provided by the bargaining agreement. The grievances claim such commissions. D At the hearing, Respondent also argued that the Union has impliedly waived the right to contest the employees' right to commissions in these circumstances. This argument does not seem to be renewed in its brief. In any event, it is well established that such waiver of right must be clear and unmistakable as well as consciously yielded. See Southwstern Bell Telephone Company, 247 NLRB 171 (1980). 1 find no waiver here. 112 PEPSI-COLA BOTTLINO COMPANY ordered to disclose the information requested by the Union because there is an asserted dispute as to the merits of the Union's grievances, and the matter there- fore should first be submitted to an arbitrator for deter- mination whether the Union needs the information re- quested. This contention has previously been considered and rejected by the Board and the courts. Thus in Acme Industrial, supra, where the Supreme Court found that "[T]he only real issue in this case . . . is whether the Board must await an arbitrator's determination of the rel- evancy of the requested information before it can enforce the union's statutory rights under § 8(aX5)," the Court rejected this contention, holding that the Board, in or- dering the disclosure of information sought, was not acting on the merits of the grievances, but acted in aid of the arbitral process in assisting the Union to sift out un- meritorious grievances. See also W. A. Sheaffer Pen Com- pany, a Division of Textron, Inc., 214 NLRB 15 (1974). It further seems to me fairly evident in the circum- stances, and I find, that the information sought by the Union here-relating to Respondent's relationships with various wholesalers-is reasonably relevant to the Union's contention that Respondent was depriving union members of benefits in violation of the bargaining agree- ment by means of such relationships with such wholesal- ers. On the basis of the above and the record as a whole I find that Respondent, in refusing to furnish the Union with the information and documents sought, for the rea- sons set forth, violated Section 8(aX)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The bargaining unit set forth in footnote 1 herein- above is a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act. 4. At all times material to this proceeding, the Union was and continues to be the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. Respondent, by failing and refusing to give the Union the information and materials requested in the Union's letters to Respondent dated April 8 and Septem- ber 1, 1981, with reference to Respondent's contractual and business relations with certain named companies and others during the periods set forth, and commissions paid to Respondent's salespersons during those periods, violat- ed Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent violated the Act by its refusal and failure to supply the Union with cer- tain information requested in the Union's letters of April 8 and September 1, 1981, which information is relevant and necessary to the Union's obligation to represent Re- spondent's employees in the appropriate bargaining unit, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER ' The Respondent, Pepsi-Cola Bottling Company of Washington, D.C., Inc., Cheverly, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Brewery and Beverage Drivers, Inside Workers, Vending Machine Servicemen and Helpers Local Union No. 67 a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, the Union herein, as the exclusive bargaining representative of its employees in the appropriate bargaining unit set forth in footnote 1 in the Decision hereinabove, by refusing or failing to fur- nish to the Union or its agents, upon request, the infor- mation and materials set forth in the Union's letters to Respondent dated April 8 and September 1, 1981, includ- ing the following: (1) all purchases from Respondent made by the companies referred to in those letters, and the prices charged to such companies for such purchases, for the periods set forth therein continuing until such time as the information is furnished to the Union, and the commissions paid, if any, to Respondent's employees for such sales to such companies, and the amount, if any, of Respondent's products delivered to such companies, re- ferred to in the Union's letters, which were distributed to other vendors; (2) all purchase orders from such compa- nies, bill of lading, invoices, and/or other records which show the volume of sales, sales prices, date of sales, and description of Respondent's products sold to such com- panies for which commissions have not been paid to route salespersons from April 1, 1981, to the date such information is furnished to the Union; (3) all sales agree- ments, contracts, and/or other documents between Re- spondent and such companies referred to in the Union's letters, setting forth the terms of sale and resale of Re- spondent's products without commissions having been paid to route salespersons from April 1, 1981, until the date such information is furnished to the Union. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the purposes of the Act: (a) Furnish to the Union, upon request, the informa- tion and documents referred to and set forth above in section l,a of this Order. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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. 113 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its operations at Cheverly, Maryland, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous I In the event that this Order is enforced by a Judgment of a United States Court of Appeal., the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Poted Pursu- 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 material. (c) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 114