Lorenz Schneider Co., Inc.

National Labor Relations Board - Board Decisions

Jan 7, 1974

208 N.L.R.B. 181 (N.L.R.B. 1974)

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.