Markstein Beverage Co.

National Labor Relations Board - Board Decisions

Mar 12, 1970

181 N.L.R.B. 661 (N.L.R.B. 1970)

MARKSTEIN BEVERAGE CO.
Markstein Beverage Co. and Beer Drivers &
Salesmen 's Local Union No. 888 , Teamsters
Brewery & Soft Drink Workers Joint Board of
California , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers
of America . Case 20-CA-5579
March 12, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On December 31, 1969, Trial Examiner Eugene
K. Kennedy issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief, and the
General Counsel 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
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations.'
'There is no merit in the Respondent ' s contention that the Union sought
the information solely for the purpose of disciplining members Contrary
to the Respondent , the record , fairly construed , does not establish that the
Union initially requested the information for that purpose Although
Business Agent Rohrscheib did testify that the information would be so
used , this statement , viewed in the context of his overall testimony, was
merely expressive of an alternative based upon Rohrscheib 's opinion that
Respondent's contract violations were not sufficiently substantial to
warrant grievance action Accordingly, in finding that Section 8(a)(5)
required Respondent to furnish the information , we do not pass upon
whether such obligation would have existed if the Union sought the
information from the outset solely for the purpose of disciplining its
members I
Member Brown, in concurring with the majority distinguishes this case
from those in which he has deferred to arbitration He views the plain and
unambiguous terms of the contract as supporting the Union 's right to the
information , and conceives of no possible interpretation of the agreement
that would justify Respondent 's withholding the data Accordingly, he finds
that Respondent 's conduct did not give rise to a genuine issue of contract
interpretation material to the statutory issues presented , and hence finds
that the policies of the Act would not be effectuated by deferring to
arbitration in this case See Century Papers. Inc . 155 NLRB 358
ORDER
661
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondent , Markstein Beverage
Co., Union City, California , its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner ' s Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE K. KENNEDY, Trial Examiner: This matter was
heard in San Francisco, California, on September 9 and
16, 1969' The issue presented is whether Markstein
Beverage Co., herein Respondent, violated Section 8(a)(5)
and (1) of the National Labor Relations Act as amended,
herein the Act.
Upon the entire record, my observation of the witnesses
and consideration of briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT; AND JURISDICTION
OF THE BOARD
Respondent is and at all times material herein has been,
a California corporation with a place of business in Union
City, California, engaged in the sale and distribution of
beer, ale and malt liquor to commercial enterprises within
the State of California. During the past year, Respondent,
in the course and conduct of its business operations,
purchased and received goods and products valued in
excess of $50,000 directly from suppliers located outside
the State of California. Respondent is and, at all times
material, has been, an employer engaged in commerce and
in operations affecting commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Beer Drivers & Salesmen's Local Union No 888,
Teamsters Brewery & Soft Drink Workers Joint Board of
California, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, herein
the Union, is a labor organization within the meaning of
the Act
III. THE UNFAIR LABOR PRACTICES
The Appropriate Unit and Majority Representation
Respondent and the Union are parties to a
collective-bargaining agreement expiring June 1, 1970.
Employees covered by the agreement are classified by
Respondent as driver-salesmen, and warehousemen S As
provided by the agreement, the Union represents the
employees in policing and enforcing the agreement and in
'The charge was filed on May 9, 1969, and the complaint issued on June
30, 1969 The General Counsel's unopposed motion to correct the
transcript attached hereto as Appendix A, is granted [Appendix A omitted
from publication I
'In the applicable collective-bargaining agreement driver-salesmen are
designated "drivers" and warehousemen are designated "bottlers "
181 NLRB No. 96
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievances unless an interpretation of the agreement is
involved, in which case it is handled through the
Teamsters Brewery & Soft Drink Workers Joint Board of
California. In all matters germane to this matter the
Union acted as the collective-bargaining agent of the
employees in the bargaining unit All employees of
Respondent in the classifications of warehousemen and
driver-salesman are members of the Union The Union is
the majority representative of Respondent's employees in
the bargaining unit described in the complaint as follows
All driver-salesmen, salesmen, warehousemen and
helpers employed by Respondent at its Union City,
California, facility excluding all other employees, office
clerical employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
Although denied in the answer, on the basis of the
record facts noted above, the above-described unit is
appropriate for collective-bargaining purposes with the
exception that the classification "salesmen" should be
omitted ' The record does not indicate helpers were
employed at the time of the events involved herein This
job classification is specified in the collective-bargaining
agreement, and is included in a description of the
appropriate unit
The Relevant Contract Provision
Central to the issue offered for resolution is the "load
limit" provision of the collective-bargaining agreement. In
relevant part, Section 39 provides that between November
1 and April 30 of any year, no driver-salesmen shall
deliver more than 1,250 packages a week.' It also specifies
that for the period May 1, through October 31, if in any
week a driver-salesman shall deliver in excess of 1,250
packages he shall be paid 10 cents for each package in
excess of 1,250.
It is apparent the purpose of these provisions is to
spread the work among the Union members during the
cooler months of the year while permitting extra work
during the warmer season with the salesmen-drivers being
paid 10 cents for each package delivered during any week
in excess of 1,250.
Section 39(b) includes the following-
The individual Employer shall keep a record showing
the number of cases delivered by each driver each day.
Such records shall be open to examination only by the
Secretary-Treasurer of the Local Union, the Branch
Secretary or a Business Agent
and Section 39(o):
The Secretary or Business Representative of the
Local Union at reasonable times shall check load sheets
for the purpose of determining whether or not the
agreement is being complied with
'The record in this matter contains a separate collective-bargaining
agreement also expiring June 1, 1970, between Respondent and the Union
which covers the classification "salesmen " Inasmuch as Respondent
stipulated "salesmen" in the bargaining unit involved were all
driver-salesmen , this other agreement is not involved or necessary to a
resolution of the issues presented
The collective-bargaining agreement appears to use "packages" and
"cases" interchangeably
Background and Events
The Union City plant of Respondent, at all times
relevant to the events and issues, employed about 12
employees in the classification of driver-salesmen and two
in the classification of warehousemen. As noted above,
these classificatiois are the same as drivers and bottlers,
respectively, as set forth in the collective-bargaining
agreement
Robert Donati, the principal witness for the General
Counsel, was employed as a driver-salesman for
Respondent in January 1967 In July of 1967 he was
terminated by Sales Manager Dave Adams after a dispute
with Respondent's Warehouse Manager John Guzior S
After an absence of a week Donati was re-employed in a
slightly inferior job Prior to his dispute with Guzior he
was a driver-salesman delivering beer in packages. He was
re-employed as a driver-salesman delivering beer in kegs
The disadvantage of the kegs was their relatively greater
weight and bulk, requiring greater effort in handling. Also
the opportunity of a driver-salesman delivering kegs to
earn any premium pay by exceeding the permissible load
limit during the summer months is significantly less than
an employee delivering packages or cases.
Donati worked in the warehouse with Guzior from
November 1968 until the second week of May 1969. His
duties in the warehouse included loading and unloading
beer, ordering beer from breweries, checking the drivers'
loads that were returned after a day's delivery and general
maintenance in the warehouse
At a Union meeting on April 16, 1969, Union Business
Representative Laurence Rohrscheib was advised that
Respondent was engaged in violations of the
collective-bargaining agreement in that its drivers were
exceeding the weekly load limit of 1,250 packages of beer
permitted by the agreement.
Donati, who was Union steward at Respondent's plant,
was one of those who reported contract violations to
Rohrscheib at the Union meeting of April 16, 1969
On April 24, 1969, Rohrscheib went to Respondent's
plant to check its records to determine whether the load
limit permitted by the agreement was being exceeded.
The principal records containing this data are the load
sheets and the master sheets ' A load sheet is a rough
record prepared by the warehouseman which reflects the
amount of beer taken out, and the amount returned The
warehouseman does not make the subtraction to show the
amount delivered.
The master sheets prepared by Respondent's secretarial
staff reflect the number of cases delivered by the
respective driver-salesmen. In the preparation of the
master sheets the data on the load sheet is used in arriving
at the amount of the daily deliveries of the
driver-salesmen.
'The supervisory status of Guzior was litigated Aside from Guzior,
Donati was the only other employee in the warehouse Guzior was paid a
salary while Donati was paid an hourly wage Both did essentially the same
work although Guzior had authority to make decisions when necessary as
to work to be done by Donati Guzior made an effective recommendation
for the discharge of Donati in July 1967 The record contains sufficient
evidence to establish the supervisory status of Guzior although this finding
is not essential to the resolution of any material issue presented by this
matter
The complaint also alleges Edna Christian , an office employee, was a
supervisor The record does not contain evidence to support this
contention
'Respondent apparently entitles master sheets as daily operations sheets
Herein they are synonymous
MARKSTEIN BEVERAGE CO. 663
When Rohrscheib arrived at Respondent's plant on
Thursday, April 24, 1969,' he told Warehouse Manager
Guzior he wanted to examine the load sheets. Guzior
declined to exhibit them on the basis that he lacked
authority. Rohrscheib then requested the records for
examination from an office clerical employee and received
the same response.
That evening Rohrscheib received a telephone call from
Respondent's sales manager, Dave Adams, who inquired
as to the reason Rohrscheib wanted to see the load sheets
Rohrscheib told him that there were reports of contract
violations at Respondent's plant with respect to the load
limits. Adams said he didn't want to give Rohrscheib the
load sheets and that he really didn't have the authority
and asked Robrscheib to wait until Adolph Markstein
returned from his vacation Rohrscheib replied that as far
as he was concerned Markstein had given his consent for
examination of the load sheets when he had signed the
collective-bargaining agreement Adams then pleaded that
Rohrscheib not persist with this request and that he wait
until Mrs Christian, the office manager, return from her
vacation Adams finally suggested that Rohrscheib
examine the records on the following Tuesday, April 29,
and Rohrscheib agreed.
On the morning of Monday, April 28, Edna Christian,
Respondent's office manager, telephoned Rohrscheib. She
told him she understood he wanted to see the load sheets
and that they were available Rohrscheib then went to
Respondent's Union City plant and was given load sheets
to examine. He then spent about four hours copying them.
After he had been at the plant for about an hour, Robert
Donati came in and pointed out to him where a load sheet
varied as compared to Donati's recollection of deliveries
of driver-salesman Abelee for the first week in April
Donati told him he was wasting his time since the load
sheets had been tampered with Donati then went to the
office where Guzior kept a copy of the master sheets in a
desk drawer. He confirmed his recollection that
driver-salesman Abelee had delivered 1,830 cases for a
week in April as reflected by the master sheet The load
sheet Rohrscheib was copying reflects that Abelee had
delivered 1,245 cases instead of the 1,830 shown on the
master sheet. An examination of the figures from the
master sheets in evidence for approximately the three
months preceding May 1, 1969, reflects that there were
many instances of weekly deliveries substantially
exceeding 1,250 packages The total actually delivered in
excess of the load limits was 11,563 packages. The load
sheets given to Rohrscheib on April 28 by contrast reflect
only a total of 122 packages delivered in excess of the
load limit, during the same period.
This discrepancy permits of no other finding than that
Respondent gave the Union deliberately altered load
sheets omitting more than 11,000 packages of beer
delivered in excess of the amount permitted by the
collective-bargaining agreement.
The data from the master sheets came into evidence
through the testimony of National Labor Relations Board
attorney William Wertz who testified concerning the
relevant data contained in master sheets after Respondent
had refused to honor a subpoena duces tecum calling for
the production of records including master sheets Wertz
had inspected Respondent's records during the course of
investigating the unfair labor practice charge filed by the
Union
'All dates hereinafter are in 1969 uniess otherwise indicated
On April 28, while Rohrscheib was at Respondent's
plant copying the load sheets, Donati suggested to Guzior
that Rohrscheib be permitted to see the master sheets.
Guzior "looked shocked" according to Donati and walked
away. This request of Donati had a sequel. About 10
minutes after the request, Donati looked in the drawer
where the master sheets had been kept and found they
were gone, and did not see them again in the desk during
the remainder of his employment as a warehouseman
Donati was transferred from the job of warehouseman
to package driver in mid-May 1969. In July 1967, Sales
Manager Adams informed Donati he was to be
transferred to the less desirable job of keg driver, and
Donati quit.
On May 5, Rohrscheib again went to Respondent's
plant to inspect the master sheets He first spoke with
Office Manager Edna Christian, and she explained she
had no authority to show him the master sheets and
referred him to Adolph Markstetn, who was at another
plant of Respondent located in Oakland, California
Thereupon Rohrscheib went to the Oakland plant and met
with Markstein and Sales Manager Dave Adams.
Rohrscheib's account of the conversation follows:
Q Was anyone else present at the time you had a
conversation with Adolph Markstein and Dave Adams?
A No
Q. I see. All right. Tell us what was said in the
conversation by you and by the others.
A Well, Adolph said they [sic] would come into the
back office of the Oakland Plant. So we went in there
He wanted to know what I wanted, and I told him I
had been out to see Edna and she told me I had to get
this information . permission, rather, from him.
And he says, "What do you want? I said I wanted
to see the master sheets and possibly payroll sheets, and
he said, "Well, you already saw the other sheets What
do you want those for?" and I said I had reason to
believe they don't jibe; and he turned to Dave Adams
and he says, "You hear that9 He thinks we falsified the
records."
Q. Did he say anything else?
A. Then he says, "You are not going to see those
records or any other records What the hell do you
think you are? Sam Spade, detective?"
As indicated by Markstein's remarks, Rohrscheib's
attempt on May 5 to see Respondent's master sheets for
February, March and April 1969 was unsuccessful
On August 5 or 6, Rohrscheib informed Adams he
wanted to see the April and May load sheets. Adams
refused saying, "Mr. Markstein says that you cannot see
the sheets." The following day Adams telephoned
Rohrscheib about 10 a.m and told him he could see the
May sheets but not the April sheets When Rohrscheib
had been at Respondent's plant on April 28, the load
sheets for three days in April had not been available.
Rohrscheib has never been permitted by Respondent to
examine the load sheets for April 28, 29, or 30 Despite a
clear contractual right, the Union was not permitted at
any time to see any documents purporting to be the load
sheets for April 28, 29, and 30 It is noted also the
agreement does not limit the Union to one inspection of
any given load sheets, and the refusal of Respondent to
show load sheets to the Union more than once does not
have a contractual justification.
664 ^ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion and Concluding Findings
The basic contention of the General Counsel is that the
Union is entitled to inspect authentic records of
Respondent to determine whether Respondent was
adhering to the collective-bargaining agreement Since for
the period in question, Respondent only made available
fabricated records, and refused to permit the Union to
examine genuine records, it follows Respondent has not
fulfilled its obligation.
It is readily apparent that the Union had a substantial
interest in policing this aspect of the agreement. The
breach of the agreement by Respondent permitted delivery
of 11,000 cases in excess of the load limits This number
of deliveries would have provided several weeks' work for
additional employees The circumstances of the industry
best known to the contracting parties undoubtedly played
a part in the inclusion of the provisions providing for a
1,250 package load limit and the right of the Union to
inspect the records Enforcement of this provision is
clearly of vital interest to the Union.
Section 39(b) of the collective-bargaining agreement
requires the employer to keep for inspection by the Union
a record of the number of cases delivered each day. Since
only the master sheets show the number of cases delivered
without the necessity of an arithmetical exercise it appears
these are the records of daily deliveries the Union is
entitled to view, in accord with Section 39(b) of the
collective-bargaining agreement. In addition the Union
has the statutory right to inspect relevant documents to
ascertain wage data and to police the collective-bargaining
agreement.' The master sheets clearly belong in this
category.
The circumstances of this case lend weight to the
Union's right to inspect the master sheets. If Respondent
had been aware of the Union's right to inspect the master
sheets as well as the load sheets, it may well have decided
to hire extra drivers instead of permitting its work force
to exceed the load limit permitted by the
collective-bargaining agreement The superior accuracy of
the master sheets over the load sheets is supported by the
fact there are severe consequences for alteration of records
kept for inspection by governmental agencies, concerned
with regulating and taxing the sale of alcoholic beverages '
Under the arrangement here present, the false records on
the altered load sheets were given the Union while
presumably the accurate records as reflected by the master
sheets would be given to the State or Federal authorities if
an inspection occurred From the Union's standpoint the
master sheets would be the most reliable records, and
since they are relevant to the policing of the
collective-bargaining agreement, the Union has a statutory
right to inspect them. N L R B v. Yawman and Erbe
Mfg, supra
2. On May 5, 1969, refusing to permit examination by
the Union of master sheets for February, March and
April 1969
3 On or about August 5, 1969, refusing to permit
examination by the Union of April load sheets.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth above,
occurring in connection with the operations of Respondent
described in section III, 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 of
commerce
CONCLUSIONS OF LAW
I The Union is a labor organization and Respondent is
an employer engaged in commerce or in a business
affecting commerce within the meaning of the Act
2 The Union is the representative of a majority of
employees in the appropriate unit set out in section III,
above
3. Respondent has committed and is committing unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act by its refusal to comply with the request of
the Union to furnish for examination by the Union the
load sheets and master sheets for February, March and
April 1969.
THE REMEDY
Having found, as set forth above, that Respondent has
engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative actions, set forth below, designed to
effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the entire record, findings of fact and
conclusions of law, Respondent, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with Beer Drivers &
Salesmen's Local Union No. 888, Teamsters Brewery &
Soft Drink Workers Joint Board of California,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America as the exclusive
collective-bargaining representative of its employees in the
following appropriate unit:
Concluding Findings
Consistent with the above findings Respondent violated
Section 8(a)(1) and (5) of the Act by
1. On April 28, 1969, failing to give the Union
accurate records reflecting daily deliveries for February,
March and April 1969'
'N L R B v Yawman and Erbe Mfg, 187 F 2d 947 (C A 2)
'California law permits , Warrants for Collection, (Rev Code
32365-32556) Special Judgment (Rev Code 32361 et seq ) and Seizure
and Sale (Rev Code 32371 et seq ) Federal law provides criminal sanctions
for alternation of records (26 U S C 5615)
"The complaint alleges a violation of 8(aX5) on April 24 On this day,
Supervisor Guzior refused to give Rohrscheib access to the records
pleading lack of authority Although the General Counsel offered sufficient
proof to establish Guzior as a supervisor, this record indicates he had very
limited authority it is not established he had authority to give records to a
Union representative and the evidence relating to this event fails to
establish an unfair labor practice by an adequate measure of proof Later
in the evening , Sales Manager Adams pleaded with Rohrscheib for a delay
in furnishing records also on the basis of a lack of authority , and saying he
needed authority of Markstein He then agreed to let Rohrscheib view the
records, with the only condition being the return of the office manager
from her vacation The excuse for delay appeared insubstantial However,
since Rohrscheib acquiesed in the delay , the evidence is insufficient to
establish an unfair labor practice in connection with this event
MARKSTEIN BEVERAGE CO - 665
All driver-salesmen, warehousemen and helpers
=employed by Respondent at its Union City, California,
facility, excluding office clerical employees, guards and
supervisors as defined in the Act
(b) Refusing to make available to the Union records
reflecting the amount of deliveries made by its employees.
(c) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate'the practices of the Act:
(a) Furnish to the Union on request any records
relevant to a determination of the number of daily
deliveries of packages, kegs or cases of beer made by
Respondent's employees
(b) Post at its plant in Union City, California, copies of
the attached notice marked "Appendix B."" Copies of
said notice, on forms provided by Region 20, after being
signed by a duly authorized representative of Respondent,
shall be posted by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily displayed Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material
(c) Notify the Regional Director for Regain 20, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.' 2
The complaint is dismissed Insofar as it alleges
violations of the Act not specifically found herein.
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board ' s Order is enforced by a judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 20, in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Local Union No. 888 of the Teamsters Union by
refusing to furnish and/or make available to the Local
888 representatives accurate records showing the
number of packages, cases and kegs of beer delivered
daily by each of our driver-salesmen.
WE WILL on request furnish and/or make available
to the representatives of Local Union No. 888 accurate
records reflecting the number of packages, cases and
kegs of beer delivered daily by each of our
driver-salesmen.
Dated By
MARKSTEIN BEVERAGE CO.
(Employer)
(Representative) (Tltl;)
This is an official notice and must not be defaced by
anyone
I his 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,
13050 Federal Building, 450 Golden Gate Avenue, Box
36047, San Francisco, California 94102, Telephone
556-3197