Retail Store Employees, Local 876

National Labor Relations Board - Board Decisions

Feb 12, 1969

174 N.L.R.B. 424 (N.L.R.B. 1969)

424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Retail Store Employees, Local Union No. 876 , Retail
Clerks International Association , AFL-CIO and
Allied Supermarkets , Inc.; Borman Food Stores,
Inc.; Lindy 's Distributors, Inc.; King Cole
Supermarket No. 5, Inc.; Great Scott
Supermarkets , Inc.; Chatham Supermarket, Inc.;
Food Giant Stores, Inc.; Dexter-Davison Markets,
Inc.; Hiller & Lutey , Inc., d/b/a Shopping Center
Markets , and Vescio, Inc. and Independent Biscuit
Company, Charging Party and Joint Council No.
43 of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen , and Helpers of
America, Intervenor . Canada Dry Corporation;
Detroit Coca-Cola Bottling Company ; Feigenson
Brothers Company; Pepsi- Cola Metropolitan
Bottling Company , Inc.; Seven-Up Bottling
Company of Detroit ; The Squirt-Detroit Bottling
Co.; Vernors, Inc., and Wyandotte Coca Cola
Bottling Co., Charging Parties and Teamsters
Union Local No. 337, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, Charging Party. Cases
7-CE-12(1) through 7-CE- 12(10), 7-CE- 13,
7-CE-14(1) through 7-CE-14(10), and 7-CE-15(l)
through 7-CE-15(10)
February 12, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 28, 1968, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent Union and
the Respondent Employers had engaged in and were
engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Respondent Retail Clerks and Respondent
Employers each filed a Motion for Summary
Reversal, exceptions, and supporting brief.' Schulze
and Burch Biscuit Co., amicus curiae , filed a brief
seeking modification of the Trial Examiner's
Decision and Recommended Order.' The American
Research Merchandising Institute, Toiletry
Merchandisers Association, and National Food
Distributors Association , amici curiae, filed a brief
in support of the Trial Examiner's Decision.
Respondent Retail Clerks also filed an Answer Brief
to General Counsel's exceptions, a Reply Brief to
the brief of amicus Schulze and Burch, and a
Memorandum Brief in answer to the brief of amici
associations.
'Respondent Employers simply incorporated and adopted the motion,
exceptions , and brief of the Respondent Retail Clerks
'On July 30, 1968, the Board denied Schulze and Burch ' s motion to
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 National Labor Relations Board has
reviewed the rulings made by the Trial Examiner 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 motions, exceptions, briefs, and the entire record
in the case, and, finding merit in exceptions of
Respondents, hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, only to the extent consistent herewith.
Respondent Employers operate supermarket
chains in southeast Michigan. Through an
Association, they bargain with Retail Store
Employees, Local Union No. 876, Retail Clerks
International Association, AFL-CIO, (hereafter
called "Clerks" or "Local 876"), as representative
of certain store employees (hereafter called
"clerks"). In 1967, Local 876 and the Association
negotiated the following Article 8(c) into their
collective-bargaining agreement:
To preserve bargaining unit work, the Employer
agrees that no supervisor, store manager, assistant
store manager or other persons not covered by
this Agreement, shall perform any work
customarily performed by employees covered by
this Agreement, except only in the event of an
emergency not attributable to the Employer, and
except only with respect to bread and potato chip
vendors, with respect to their initial daily delivery
only, and except only with respect to rack jobbers
(defined to be those vendors, who, at the
execution of this Agreement, service non-food
specialty items), who shall be permitted to stock
their customary respective merchandise. The
Employer agrees that supervisors, store managers,
assistant store managers or any nonmember of
the bargaining unit employed by the Employer
violating this understanding will be severely
disciplined and after three (3) written violations
will be demoted and made a member of the
bargaining unit with no seniority.
As a result of Article 8(c)'s enforcement, employees
of suppliers named in the complaint were prevented
from shelving and servicing certain brand-name
cookies, crackers, spices, baby foods, and soft
drinks in Respondent supermarkets. Since August 2,
1967, the employees in the Clerk's unit have
performed such tasks on the specified brand items.
The question here is whether Article 8(c), so
applied,3 had an object of preserving work for clerk
intervene and file exceptions , but permitted it to file an amicus brief In
view of our dismissal of the complaint , this brief raises no unique issues
which require discussion.
'There is clearly no merit to the General Counsel ' s contention that
Article 8(c) as written is itself violative of the Act.
174 NLRB No. 67
RETAIL STORE EMPLOYEES, LOCAL 876
employees of Respondent supermarkets or was
"tactically calculated to satisfy union objectives
elsewhere",' and thus violated Section 8(e) of the
National Labor Relations Act, as amended.
The Trial Examiner found that clerks had not
generally performed the shelving and related services
on the specified brand items carried by the named
suppliers.' From this nonperformance on these
brand-name products, the Trial Examiner reasoned
that Clerks was using Article 8(c) to acquire work
belonging to another unit, and that this was a
secondary object. However, in our recent decisions
in Brentwood Markets' and Cala Foods,' we
rejected a definition of grocery store unit work by
brand name or supplier, stating: "To define unit
work narrowly according to the supplier or newness
of the product would effectively deny the Clerks any
remedy for piecemeal reduction and potential
elimination of unit work opportunities."' In the
circumstances of this case, too, the fact that clerks
may not have performed the shelving tasks on these
particular brands of cookies, crackers, spices, baby
foods, and soft drinks is not dispositive. For the
record shows that clerks have handled the in-store
shelving and servicing tasks on the bulk of the
grocery merchandise carried by Respondent
supermarkets. The clerks have also worked on goods
similar to those provided by the named suppliers
and on some merchandise which differs only in
brand name. In addition, the clerks have done a
certain amount of replenishment of, and performed
other services for, the specified brands.' Based on
these work practices within the clerk unit, we cannot
find the work on the specified brand-name products
was so foreign to the unit as to negate the Clerks'
assertion of a job protection object. There is, rather,
ample support for Clerks' claim that the work of
shelving and related tasks on cookies, crackers,
spices, baby foods, and soft drinks, irrespective of
brand, is a proper primary interest of the Clerks. To
confine Clerks' area of legitimate job protection
efforts to work in respect to the brands or suppliers
handled before August 2, 1967, is both arbitrary and
unrealistic. 10 In short, we can not outlaw primary
work protection ' efforts by such a restrictive
definition of unit work.
The record otherwise indicates that it was Clerks'
interest in preserving unit work opportunities, not
outside tactical aims, which governed the application
'National Woodwork Manufacturers Association v N.L.R B, 386 U S
612,644
'Or at least the "original" shelving on these items.
'Retail Clerks ' Union , Local No 648 (Brentwood Markets ), 171 NLRB
No 142
'Retail Clerks Union , Local 648 (Cala Foods ), 172 NLRB No. 200
'Brentwood Markets, supra, fn 5
'The amount of this replenishment seemingly varied with , product and
store However , we accept the Trial Examiner's conclusion that clerk
replenishment generally constituted a small part of the total work on the
specified brand merchandise.
'"This does not mean that suppliers or brands are never relevant We
hold only that work practices in the present context do not support the
decisive significance given these factors by the Trial Examiner
425
of Article 8(c) to the goods of the named suppliers.
Thus, the record shows that in the 1967 contract
negotiations, Clerks' representatives asserted that
outsiders were coming into the stores and doing
what was regarded as clerks' work, that this practice
represented an increasing threat to clerks' job
opportunities, and that Article 8(c) was designed to
end that job threat." The application of Article 8(c)
to the work on the specified brand-name products
implemented this stated work preservation object.
But the Clerks in no way identified the suppliers or
their merchandising practices as the target of Article
8(c)'s enforcement, and the record is devoid of any
indication that the Clerks had a dispute or policy to
pursue at the suppliers. While Respondent
supermarkets -assigned the shelving work to clerks
pursuant to Article 8(c), they continued to buy the
brand merchandise from the suppliers. The Clerks'
restriction on the supermarkets' work allocation
thus appears to have had no strategic advantage or
tactical aim outside the unit; it sought only to
preserve work opportunities for the clerks. And any
resultant impact on the operations of the suppliers
cannot be said to be "an object" of the application
of Article 8(c), but is, rather, only an incident to a
lawful primary job protection effort. In sum, we find
that General Counsel has not carried his burden of
proving, by a preponderance of the evidence, that
Respondent's conduct here violated Section 8(e) of
the Act.' I
Accordingly, we shall dismiss the complaint."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
be, and it hereby is, dismissed in its entirety.
"The fact that Article 8(c) made certain exemptions for emergencies,
bread and potato chip vendors , and rack jobbers is not inconsistent with
the objective of preserving the remaining shelving work for the employees
in the unit Employer acquiescence in the fullest possible work claim is not
a prerequisite to lawful primary action Nor, of course, is the failure to
claim shelving work performed by employees outside its unit in the meat
department and bakery concession fatal to Clerks ' position herein
''This is so even accepting for decisional purposes the offer of proof
made by General Counsel in the course of his examination of witness Jack
Bushkin.
"As in Brentwood and Cala Foods , our findings here are limited to the
alleged secondary boycott implications of article 8(c) and its enforcement
in respect to the brand merchandise of the named suppliers They are not
diapositive of any contract interpretation or jurisdictional dispute issues
Which may arise.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE , Trial Examiner : This is a
consolidated unfair labor practice case. Cases 7-CE-12(1)
through 7-CE-12(10) originated on separate charges filed
on August 22, 1967, by Independent Biscuit Company, a
wholly owned subsidiary of Mickelberry Food Products,
against each Respondent Employer mentioned in the
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
caption above. The order in which each Employer's name
appears in the caption determines the subnumber assigned
to it, so that, for example, Borman Food Stores, Inc.,
carries the number 7-CE-12(2) because it is enumerated as
the second Employer in said caption. Each separate
charge against said Employers ( 10 in all) also names as a
Respondent Retail Store Employees, Local Union No.
876, Retail Clerks International Association, AFL-CIO
Thus, Local 876 is also a Respondent in all 10 cases. Said
charges were consolidated on October 16, 1967.
A consolidated complaint, pursuant to Section 10(b) of
the National Labor Relations Act (29 U.S.C. 160(b)) was
issued, based on said charges, on October 16, 1967,
against Local 876 and the 10 Respondent Employers, by
the General Counsel of the National Labor Relations
Board, through the Regional Director for the Seventh
Region (Detroit, Michigan), on behalf of the Board. In
substance the consolidated complaint, as finally amended,
alleges that Local 876 and the 10 Respondent Employers
have engaged in conduct contravening Section 8(e), and
that such conduct affects commerce within the meaning of
Section 2(6) and (7), of the Act.
Pursuant to due notice, the consolidated complaint in
Cases 7-CE-12(l) through 7-CE-12(10) came on to be
heard on November 29 and 30 and December 1, 1967, at
Detroit, Michigan. On December 1, 1967, that case was
adjourned until January 29, 1968, for further hearing.
During this recess additional charges were filed against
Local 876 and the 10 Respondent Employers named in
Cases 7-CE-12(1) through 7-CE-12(10), as more fully
described in the ensuing paragraphs.
On December 1, 1967, a single charge was filed against
Local 876 by eight manufacturers and distributors of
carbonated beverages. Case 7-CE-13. Their names are set
forth in the caption above as Employer Charging Parties.
On December 1, 1967, said 8 Employer Charging Parties
also filed separate charges against the 10 Respondent
Employers mentioned in the said caption. Cases
7-CE-14(1) through 7-CE-14(10).
On December 6, 1967, Teamsters Union Local No.
337, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America filed separate
charges against each of the 10 Respondent Employers
named in the caption above, the subnumber of each
charge against an Employer corresponding to the order in
which such Employer's names appears in the caption
above. Cases 7-CE-15(l) through 7-CE-15(10). Local 876
is named as a Respondent in each of said 10 separate
charges.
Cases 7-CE-13, 7-CE-14(l) through 7-CE-14(10), and
7-CE-15(l) through 7-CE-15(10), were consolidated on
December 29, 1967. On that date a consolidated
complaint based on said charges was issued against Local
876 and the 10 Respondent Employers by the General
Counsel of the Board, through the Acting Regional
Director for said Seventh Region. In substance said
consolidated complaint alleges that Local 876 and the 10
Respondent Employers have engaged in conduct violating
Section 8(e), and that such conduct affects commerce
within the meaning of Section 2(6) and 7, of the Act.
Respondents' have severally answered each denying that it
has committed any unfair labor practices.
'By memo to me dated February 20, 1968, the Regional Attorney for the
Board's Seventh Region transmitted to me the proof of service of the
answer of Respondent Lindy's Distributors, Inc. This may be received into
the record as TX Exh. 2 It is dated February 2, 1968.
Thereafter, the General Counsel moved to consolidate
for purposes of trial Cases 7-CE-12(1) through
7-CE-12(10), 7-CE-13, 7-CE-14(1) through 7-CE-14(10),
and 7-CE-15(l) through 7-CE-15(10). My denial of such
motion was reversed, and the motion was granted, by the
Board on January 18, 1968, and consolidation was
ordered.
The hearing on the consolidated case was resumed at
Detroit, Michigan, on January 29, 1968, and lasted until
February 7, 1968, when it closed To recapitulate, the
consolidated case at this resumed hearing consisted of two
cases based on two consolidated complaints, ' i.e.,
7-CE-12(1) through 7-CE-12(10), as one of those two
cases, the other being 7-CE-13, 7-CE-14(l) through
7-CE-14(10), and 7-CE-15(l) through 7-CE-15(10).
All parties were represented at and participated in the
trial, and were granted full opportunity to adduce
evidence, examine and cross-examine witnesses , submit
briefs, and present oral argument. Briefs have been
received from the General Counsel, the Charging Parties
other than Independent Biscuit, Intervenor Joint Council
43 of the Teamsters Union, and Respondent Local Union
No. 876.
A motion to dismiss by Respondent Local 876 was
denied at the hearing.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following-
FINDINGS OF FACT
1. AS TO JURISDICTION
During the year ending December 31, 1966, each of the
Respondent Employers derived gross revenues in an
amount exceeding $1,000,000. During the same period
each of said Employers purchased and received directly
from points located outside the State of Michigan, goods
and materials valued in excess of $50,000. Each
Respondent Employer is a member of United
Supermarket Association of Michigan, a membership
association with its principal office in Detroit, Michigan.
Among other things, said United Association engages in
collective bargaining on behalf of its members with labor
organizations, including Respondent Local No. 876. I find
that Respondent Employers and United Association each
is an Employer under Section 2(2), and each is engaged in
commerce within the meaning of Section 2(6) and (7), of
the Act. Each of the Employers who are Charging Parties
in Case 7-CE-13 in 1967 had gross revenues exceeding
$500,000, and during said period each received goods and
materials valued in excess of $50,000 directly from points
located outside the State of Michigan. I find that said
Employers are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. I further find that it
will effectuate the policies of the Act to assert jurisdiction
over the Respondents in this proceeding. Siemons Mailing
Service, 122 NLRB 81, 84.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Local Union No. 876, Retail
Clerks International Association , AFL-CIO, herein called
Local 876, is a labor organization within the meaning of
Section 2(5) and 8 (e) of the Act.
RETAIL STORE EMPLOYEES, LOCAL 876 427
III. THE UNFAIR LABOR PRACTICES
The principal issue in this case involves the validity of
Article 8(c) of the collective-bargaining contract between
Respondent Employers and Respondent Local 876 to the
extent that it affects the racking, by outside vendors, on
the shelves of said Employers of crackers, cookies, baby
foods, spices, and soft drinks and carbonated beverages
carrying specified brand names . That this is the issue is
disclosed by the complaints in the case and by the express
assertion of counsel for the General Counsel that the
shelving or racking of only these products was contested
and that no other products were involved.
During the trial I sustained the General Counsel's
objection to evidence offered by Respondents regarding
the shelving or racking of beer, wine, fruit juices and fruit
punches other than the soft drinks and beverages
enumerated in the complaint; coffee; tea, powders or
mixes known as Kool-Aid, Tart, Tang, and Twist, dairy
products; Sanka; and cocoa. It was my opinion, and still
is, that these products are not only omitted from litigation
by the complaint, but the counsel for the General Counsel
at the trial emphatically and unequivocally insisted that
the shelving or racking of these products was not being
questioned in this case Nevertheless , the Board on an
interlocutory appeal ruled that such evidence should be
received "on the grounds that evidence offered appears
relevant and material."
The Motion to Correct Transcript of Respondent Local
876 is granted in the absence of opposition thereto.
A. The General Counsel's Evidence
Independent's products have never been racked or shelved
by a store's employees before August 2, 1967.
Independent's salesmen service a market from one to
five times a week, depending on the volume of that store.
The shelving or racking services take up as much as 70
percent of a salesman's time in city store routes and 30
percent in country store routes.
Some of Independent's salesmen "very seldom" leave
merchandise in any stores backroom. This occurs when
the salesman misjudges a store's needs for the day on
which a delivery is made. When an Independent salesman
is on vacation, generally college students will substitute
for the absent salesman; and when the salesman is ill, an
Independent route supervisor usually "pulls [the
salesman's] territory."
At inventory time in the stores, which happens
"occasionally," employees of some stores shelved or
racked Independent's merchandise.
In Chatham and Great Scott markets the employees
rack and shelve the store's own brand of cookies known at
Flavor-Kist.
When Independent put on promotional displays at a
point in the stores away from the shelves, the store's
employees would replenish Independent's merchandise on
the display stand. When this occurred, it took place
usually on a weekend. However, the packages are placed
originally on such displays by Independent's salesmen.
Since Article 8(c) of the collective-bargaining contract
between Local 876 and the Respondent Employers became
effective on August 2, 1967, Independent's employees have
been expressly prohibited by said Respondents from
servicing in any manner the store shelves of Respondent
Employers.
1. The nature of Independent Biscuit Company's
delivery system prior to August 2, 1967
Independent sells to supermarkets cookies and crackers
of a perishable nature. The brand names thereof are
Shur-Good, Dutch Twin, Mama, Imperial, Zinsmaster,
Old London, Burry, FFV, and 11 others. These are
delivered in fragile packages, 90 percent of which are
made of cellophane. This includes about 125 varieties.
Generally a code is placed on the package or the case
containing several packages to indicate the date when the
products were baked. This code is used for purposes of
rotation, i.e., the older packages are brought forward, and
newer packages are placed behind, on a store's shelves by
Independent's salesmen. This keeps the product fresh and
prevents stale products from being sold.
In addition to placing and rotating packages on a
store's shelf, Independent ' s salesmen (about 35 in 'all)
arrange the shelf in such a manner as to present the best
sales appeal to customers of the store . In this connection
damaged goods are removed from the shelves.
Independent's salesmen take orders from stores, but the
delivery is made by another employee of Independent, a
driver. Delivery is made in the store's aisle, but sometimes
it is to a backroom. On the same day when a delivery is
made, the salesman services a store by shelving or racking
the products. If any packages are left after the shelves
have been replenished, they are placed in a store's
backroom. On his next return the salesman replenishes the
shelves, first taking the backroom packages, if any. If
packages are left over they are placed in the backroom.
This procedure is repeated each time a salesman services a
store. Rarely does an employee of the market rack the
shelves with surplus packages of Independent's products
left in a store ' s backroom . In some instances
2. As to Borman Food Stores, Inc
Borman ' s, which has been in business about 42 years,
operates a chain of 89 supermarkets under the name of
Food Fair Markets, Farmer Jack's Markets, and K-Mart
Foods in Macomb, Oakland, and Wayne Counties,
Michigan , and also in the Grand Rapids and Muskegon
areas of Michigan . These stores are run within the
territorial jurisdiction of Local 876. Among other
products , Borman purchases cookies from Independent
Biscuit Company, one of the Charging Parties.
Early in 1967, the Respondent Employers and Local
876 negotiated for a collective-bargaining contract. Local
876 represents all of Borman's employees except those in
the meat department. However, those in the bakery are in
a separate unit. During such negotiations Local 876
complained that so-called outside vendors, who are in
effect suppliers of merchandise to said Respondent
Employers' stores, were taking away work from members
of Local 876 employed by said Employers in that the
outside vendors were performing work normally
performed by such employees. After some discussion it
was finally agreed that outside vendors would not be
permitted to put or stack their merchandise (other than
bread and potato chips) directly on the shelves in
Respondent Employers' stores, and that such merchandise
was to be stacked on such shelves by the particular
employees at each of Respondent Employers' stores
receiving a delivery thereof. This agreement was reduced
to writing and was incorporated as Article 8(c) into a
collective-bargaining contract executed by Local 876 and
the Respondent Employers on or about August 2, 1967. It
provides that:
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Article 8(c)]: To preserve bargaining unit work, the
Employer agrees that no supervisor , store manager,
assistant store manager or any other persons not
covered by this Agreement, shall perform any work
customarily performed by employees covered by this
Agreement, except only in the event of an emergency
not attributable to the Employer, and except only with
respect to bread and potato chip vendors, with respect
to their initial daily delivery only, and except only with
respect to rack jobbers (defined to be those vendors
who, at the execution of this Agreement, serviced
non-food specialty items), who shall be permitted to
stock their customary respective merchandise. The
Employer agrees that supervisors , store managers,
assistant store managers or any nonmember of the
bargaining unit employed by the Employer violating this
understanding will be severely disciplined and after
three (3) written violations will be demoted and made a
member of the bargaining unit with no seniority.
As a result of this clause, i.e., Article 8(c), employees
of outside vendors after August 2, 1967, were not
permitted to stack or shelve products which they delivered
to Respondent Employers' stores; instead, they have
delivered to the stores' backroom, and employees of such
stores, usually members of Local 876, then stocked the
shelves from merchandise so stored in the backroom or
storage area and stamped the packages with a code
indicating the date.
Prior to August 2, 1967, a different practice or
arrangement existed at Borman ' s. It is described
immediately below as to cookies sold by Independent
Biscuit Company , an outside vendor, and in subsequent
paragraphs as to certain other merchandise sold by other
outside vendors to Borman ' s. A prescribed area and a
definite number of square feet therein on the shelves of
each of Borman ' s stores was allotted for the stacking
thereon of cookies sold to Borman 's by Independent
Biscuit Company . Independent ' s salesman obtained the
order from Borman's. Delivery was then made of the
cookies, which were prepacked before delivery to
Borman's, by Independent's truckdriver. Thereafter,
Independent 's salesman stacked the packaged cookies on
the allotted shelf space at Borman's.
This method of delivering and stacking by
Independent' s employees had continued for at least 18
years before August 2, 1967. Such deliveries and stacking
of shelves were made by Independent's salesmen as often
as necessary , usually two or three times a week, based on
a store ' s volume of business . As part of his duties,
Independent ' s salesman checked the aisle and observed the
amount and condition of cookies on the shelves he
serviced on one day. Then on the next day he returned,
stamped the packages with a code number indicating the
date of baking , and then replenished the shelves. In so
replenishing he moved the older cookies to the front and
placed the most recent in back, a process called rotating.
This assures that cookies bought by customers of
Borman's are fresh. Any excess packages are stored by
Independent ' s salesman in Borman's backroom and, on
the next trip to the store, he moves them to the shelves
where he rotates them with the other packages, if any,
remaining on the shelves.
If the shelves became bare or empty before
Independent's salesman visits a Borman store, and a
customer asked a Borman employee for Independent's
cookies, Borman ' s employee would bring such
merchandise to such customer from the stock stored in
Borman ' s backroom . "The frequency of that was very,
very small." But "on a regular routine [Borman's] would
depend on the so-called [ Independent ' s] salesman to stock
the merchandise" on the shelf. However, Borman's
cashiers, who are in the unit, have always- checked out all
merchandise , including Independent's.
Borman 's stores also have a meat department. The
employees thereof are represented by Local 539,
Amalgamated Meat Cutters' Union of North America in
a different bargaining unit. Such employees, however, cut,
wrap, package, and then shelve the packaged meat on
Borman's meat counters Also the bakery in Borman's
store is a concession operated by Awrey Bakeries.
Although represented by Local 876, Awrey's employees
are not employees of Borman's and are in a different
bargaining- unit. Awrey's employees shelve Awrey's
cookies except on the rare occasion when no employee of
Awrey is available. In the latter case Borman's employees
do the shelving. Article 8(c) above-mentioned is not
enforced by the parties thereto as to Awrey's employees
or Borman ' s meat department employees as to the
function of these employees in their own bargaining units.
A similar practice was followed with respect to cookies
sold to Borman's by the supplier of Flavor-Kist cookies,
except that actually delivery to Borman's backroom was
made by Borman 's trucks. But Flavor-Kist's
representatives would stock the merchandise on Borman's
shelves
Borman purchases cookies and crackers from National
Biscuit Company, Sunshine Biscuit Company, and
Hekman Biscuit Company Sunshine and Nabisco
salesmen come three or four times a week to Borman
stores. The method of delivering merchandise and placing
it on Borman's shelves corresponds to that followed with
respect to Independent Biscuit Company's products,
including the building and stocking of special displays.
For at least 19 years, Beech-Nut and Gerber's have
sold baby foods to Borman's. It is delivered to Borman's
at its own warehouse. Then Borman's brought it to the
backroom of its stores from its warehouse, the amount for
each store being determined and ordered by the salesman
of Beech-Nut or Gerber's. Thereafter, such salesman price
stamped and shelved his merchandise, and rotated it
according to a code number he places on it. A salesman
came to Borman ' s stores at least once , and, to some of its
stores, twice a, week. Borman's employees replenish baby
foods on its shelves only if the shelves were bare and a
customer asked for it. The salesman also built and
stocked special displays occasionally.
Spices are purchased by Borman's from Frank Tea and
Spice Company. These were distributed to Borman in the
same manner as baby foods, described above. However,
Frank's salesman called at Borman's stores but once a
week, at which time he serviced the shelves of its stores.
In the case of spices, the sheli;es consisted of racks owned
by Frank's. And only pepper was kept in Borman's
backrooms. This was used to replenish the racks at the
store by the store's employees when necessary; i.e., when
the racks were depleted.
Soft drinks are brought to Borman's stores by salesmen
of the suppliers. Such salesman came to the stores twice a
week, i.e., on Monday and Friday. After shelving his
product in the store the salesman left a reserve in the
store's backroom. This reserve was used sometimes by the
store's employees to replenish shelves. If this proved
inadequate, Borman ' s called a salesman to make a special
call with beverages, so that on these special trips the
salesman replenished the shelves and also left some
reserve stock in the backroom. Such salesman also put up
RETAIL STORE EMPLOYEES , LOCAL 876
special displays occasionally at Borman's stores.
Borman sold a soft drink known as "Taco," which it
purchased from White Rock. This was shelved at
Borman's stores exclusively by its employees. And its
employees exclusively shelved the half gallon containers of
"Dad's" root beer, salt, "Lawry's" seasonings, "Accent"
seasoning, and "Adolph's" seasonings and tenderizer; but
pepper was shelved by Borman's employees "very rarely."
3. As to Lindy' s Distributors, Inc.
Lindy's buys cookies and crackers from Independent.
The latter's salesmen generally call on Lindy's store twice
a week to take orders and service the stores. After a
salesman of Independent takes an order the products are
delivered by Independent's delivery employee to Lindy's
aisle. Lindy's has a policy of not keeping backroom stock
of cookies and crackers. On the same day as the delivery
Independent's salesman places the packages on Lindy's
racks or shelves. Lindy's employees shelve and rack the
overwhelming majority of items other than cookies and
crackers.
None of this racking or shelving of Independent's
products is performed by Lindy's employees except in an
emergency when the salesman did not show up because of
illness. This occurred very rarely. This method of delivery
and shelving by Independent continued for about 14 years
prior to August 2, 1967. However, Lindy's cashiers handle
all cookies as they came through the checkout lines at the
registers. Since August 2, 1967, Independent's employees
are forbidden by Lindy's to rack or shelve Independent's
merchandise by reason of Article 8(c) of the
collective-bargaining contract between Lindy's and Local
876. However, Independent still sells and delivers its
products to Lindy's although the former has not since
August 2, 1967, racked or shelved them.
Lindy's purchases the cookies and crackers of Hekman
Biscuit Company, Sunshine Biscuit Company, National
Biscuit Company, and Swanson Cookie Company's
"Archway" and "Stella D'Oro" lines. "Archway" and
"Stella D'Oro" products are delivered directly to Lindy's
shelves by Swanson's driver-salesmen, so that none of
such merchandise is stored as a reserve supply in Lindy's
backrooms. The cookies and crackers of said other
suppliers were ordered from salesmen, who came twice a
week, and were delivered by drivers of such suppliers.
Within a few hours after delivery, the salesman who took
the orders arrived at the store. There the salesman shelved
the merchandise. Some backroom stock of these products
was kept as a result of overordering, but none of it was
shelved by Lindy's store employees.
Baby foods were purchased from Beech-Nut and
Gerber's, and spices from Frank Tea and Spice Company.
Such products were ordered, delivered, and shelved in the
same manner as cookies and crackers, i.e., a salesman
who came once a week, ordered and shelved the products
which were delivered by a driver of the particular supplier.
The above salesmen who shelved their respective
products also rotated, dusted, and cleaned the same, took
away damaged merchandise, sometimes put up "point of
purchase advertising material, and occasionally set up and
maintained special displays. Although some backroom
stock of baby foods and spices was kept, this was shelved
by Lindy's employees only when the shelves became
empty.
Salt, "Lawry's" seasoning, "Accent" seasoning,
"Adolph's" seasoning, and a soft drink known as
"Meadowdale" sold by Abner Wolf have been shelved and
429
handled exclusively by Lindy's store employees; and such
employees "almost exclusively" replenish shelves with
backroom supplies of Coca-Cola. None of the above salt
or seasoning is sold by Frank Tea and Spice Company.
4. As to Food Giant Stores, Inc.
For about 25 or 26 years Food Giant has purchased
products from Independent Biscuit Company. These are
shelved in Food Giant Stores by Independent's salesmen
who do so on an average of twice a week. On rare
occasions Food Giant's employees performed such
shelving of Independent's products by taking stock stored
in the backroom and placing it on the store's shelves. This
occurred on rare occasions when the shelves became bare
or exceptionally low and it became necessary to replenish
them before Independent's salesman arrived to attend to
this work.
An overwhelming majority of all other items in Food
Giant's stores is shelved and racked by its own employees.
However, this does not apply to bakery products sold by
Awrey's or Sander's in Food Giant Stores, for Awrey's
and Sander's employees shelve and rack their Employer's
products. Sander's and Awrey's have a concession in Food
Giant Stores which includes candy, ice cream, sweet
goods, potato chips, bread products, and cookies.
Nevertheless, Awrey's and Sander's employees are not
permitted to shelve or rack any merchandise other than
their own in Food Giant Stores.
Food Giant's cashiers handle Independent's products as
part of their checkout procedures. Since August 2, 1967,
Independent still sells and delivers to Food Giant, but
Independent's employees have not since then been
permitted to shelve or rack its products because of Article
8(c) of the collective-bargaining contract between Local
876 and Respondent Employers. However, Awrey's and
Sander's employees still rack their own merchandise, as
they have in the past, notwithstanding said Article 8(c).
Also, Food Giant's meat department employees continue
to shelve the meats sold by Food Giant despite said
Article 8(c).
Respondent Great Scott's employees have always
shelved cookies and crackers sold under its own label of
Flavor-Kist. And Respondent Chatham's employees
similarly have always shelved cookies and crackers sold
under its own brand called Staff.
Food Giant, a chain of 15 supermarkets in the Detroit
area, received cookies and crackers from National Biscuit
Company, "Archway" brand from Swanson's Cookie
Company, Hekman Biscuit Company, and Stella D'Oro
brand of cookies. These were delivered to Giant's stores
once or twice a week by salesmen or driver-salesmen of
the suppliers. These salesmen and driver-salesmen placed
the merchandise on Giant's shelves, rotated it, price
tagged it, and kept it fresh and neat appearing. Such
salesmen and driver-salesmen performed similar functions
in connection with special displays of such products.
Employees of the stores sometimes replenished shelves
with merchandise in the backroom; but this did not
include "Stella D'Oro" or "Archway" brands because
these were not kept in the backroom.
Food Giant also handles the baby foods of Gerber,
Beech-Nut, and Heinz. These were delivered to the
backroom of Giant's stores from a warehouse Thereafter
the salesman of the supplier came about twice a week and
placed such merchandise on the store's shelves, bringing it
out from the supply in the backroom. Such salesman also
lined up the merchandise, rotated it, dusted and cleaned it,
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and removed damaged items. "Very seldom" did
employees of the store place baby foods on the shelves;
but this did occur when the shelves became empty.
Spices of Frank Tea and Spice Company and Durkee's
were delivered to Giant in the same manner as baby
foods, i.e., from a warehouse. Then the supplier's
salesman came the next day to the stores and placed this
merchandise on the shelves of the stores. In addition, he
rotated the spices and lined up and dusted the shelf.
Generally, a supply of spices was not maintained in the
backroom of the stores, but extra supplies, if any, were
kept in the aisles adjoining the shelves holding such
merchandise If the shelves became empty, a rare
occurrence, an employee of the store replenished them
from this supply in the aisles.
Giant also buys soft drinks from the Charging Parties
in Case 7-CE-13. These were delivered to Giant's stores
by the suppliers. Then the driver-salesman of the supplier
stocked Giant's shelves with such products. In some
instances a backroom reserve was maintained in Giant's
stores. When shelves became empty Giant's employees
replenished them from this backroom reserve.
Abner Wolf, a wholesale food distributer, supplies Food
Giant with saltine cookies carrying the brand name of
"Meadowdale" or "Camelot." These are delivered to
Giant's backroom by Wolf's trucks. Thereafter, they are
handled in the stores exclusively by Giant's store
employees. This same procedure is followed as to these
particular brands at the stores of Lindy's Distributors,
Inc., where Abner Wolf also distributes them.
At both Food Giant and Lindy's it was expected that
the store employees would replenish store shelves with
baby foods when such shelves became empty; but this was
seldom done by such employees. When store employees
performed this work they also level and face the baby
foods on the shelves, and also stamp prices thereon This
procedure was also followed by store employees as to
spices, cookies, and crackers. However, the store
employees exclusively serviced the shelves with salt.
Giant and Lindy's employees also put up on the
shelves, when they were empty, "Accent" and "Adolph"
seasonings, and soft beverages, obtaining the same from
reserves left in the store's backroom by the salesmen
employed by such suppliers. However, Abner Wolf's
private brand of beverages, marketed under the name of
"Meadowdale," were handled entirely by the employees of
the store These beverages were delivered by Wolf to the
backroom of stores of Giant Lindy's did not carry
"Meadowdale" beverages.
5. As to Great Scott Supermarkets, Inc.
Great Scott purchases products from Independent
Biscuit Company in the following manner or procedure.
Independent's salesmen first took an order from the store.
He returned to the store on the day when the merchandise
was delivered and placed it on the shelf in the selling area.
This latter function occurred between two and four times
a week depending on the volume of a store and the flow
of Independent's merchandise off the shelves.
Reserve stock of Independent's products was left in the
backroom of a store by Independent's employees to be
used, if necessary, for replenishing the store's shelves by
Great Scott's employees. This act of replenishing by Great
Scott's employees occurred only, if at all, on weekends,
when volume of sales was high Its frequency is not clear,
as the testimony of Vice President Nathan Fink indicates
(Tr. p. 258) that "it would occur on some weekends and
on other weekends it wouldn't." But Great Scott's
employees did not replenish during the week because
Independent's salesmen serviced the store often enough to
keep merchandise constantly on the shelves during this
period -
Great Scott's employees shelve the overwhelming
majority of all products other than those of Independent
and meat products. The meat department composes a
separate bargaining unit, the employees of which are
represented by the Meat Cutters Union. Since August 2,
1967, Great Scott has continued to handle Independent's
products, but they are shelved by Great Scott's employees.
Article 8(c), above-mentioned, is not being applied to
employees in the meat department or the employees of
Sander's, which has the bakery concession in Great
Scott's stores. The employees of Sander's are also in a
different bargaining unit.- Since August 2, however, Great
Scott's employees will shelve Sander's products "upon
customer demand "
Great Scott also purchased cookies and crackers from
National Biscuit Company, Sunshine Biscuit Company,
Hekman Biscuit Company, Stella D'Oro, and Archway.
The products of the latter two were delivered by a
driver-salesman, who took them off his .truck; those of the
others were sold by a salesman and delivered by the
supplier's truckdriver.
In the case of Stella D'Oro and Archway, the
driver-salesman shelved his products at Great Scott's
stores when he delivered them from his truck. In the case
of the others, the salesman returned to the stores shortly
after the delivery by truck and shelved his products. Such
driver-salesmen or salesmen, as the case may be, called
three times a week at the stores, where they also price
s*amped, rotated, tagged, and dusted merchandise, and
removed damaged products from the shelves They also
built and maintained special displays of cookies and
crackers at Great Scott's stores. In some Great Scott
stores the salesman of cookies and crackers delivered and
shelved products three times a week, but in the case of
special displays he came every day to restock such
displays.
Although Great Scott maintained a backroom reserve
of cookies and crackers, it did not do so with respect to
those of Stella D'Oro and Archway. This backroom
supply was used by the above-mentioned salesmen to
replenish the shelves; but it was also used by Great Scott's
employees for such purpose on weekends if the shelves
became empty at that time. This involved about 5 percent.
In such instances they dusted and levelled, but did not
face, the merchandise. Great Scott also sold its own brand
of saltines called "Bonnie." Such saltines were shelved
and otherwise handled exclusively by its store employees.
Baby foods sold in Great Scott stores are purchased by
it from Gerber's and Heinz, both outside vendors. While
the sale to Great Scott was made by a salesman of the
outside vendor, the products were delivered usually, twice
and sometimes three times a week to its stores from a
war,,housc. Not long after such, delivery the salesman
returngd,tp the store, where he personally put the baby
food on ,the shelves in the selling area. At the, same time
he also price tagged and rotated the merchandise and
removed damaged items.
Great Scott maintained some backroom stock of baby
foods. This was moved from there to the shelves of the
stores by the salesmen of Gerber's and Heinz.
Occasionally, about 5 percent of the time, such
replenishing of shelves was also made by store employees,-
but only if the shelves became bare on a weekend Special
RETAIL STORE EMPLOYEES, LOCAL 876
displays of baby foods were exhibited only for orange
juice. These were set up and maintained by the salesmen
of the outside vendors.
Great Scott purchased spices from Frank Tea and
Spice Company. Like baby foods, spices were delivered,
usually once and sometimes twice a week, from a
warehouse to the backroom in Great Scott's stores.
Shortly after such delivery Frank's salesman arrived at the
store, where he put the spices on the shelves While at the
store the salesman also price tagged, stamped, cleaned,
and rotated merchandise, and removed any damaged
articles from the shelves. At no time did Great Scott's
employees place any of Frank's spices on the shelves.
However, such employees exclusively shelved salt, and "to
some degree" also shelved seasonings called "Lawry's,"
"Accent," and "Adolph."
Great Scott also sells "house brands" of soft beverage
known as "Mavis" and "Dad's." They are handled and
shelved exclusively by its store employees.
6. As to King Cole Supermarket No. 5, Inc.
This Respondent, which operates two retail food stores
in the Detroit, Michigan, area, purchases merchandise
from Independent Biscuit Company. Independent's sales
people call at these stores 1 day a week to write an order.
Later the merchandise is delivered. The following week
the salesman places this merchandise on King Cole's
shelves in the selling area of the store In addition he
takes an order. This routine is repeated each week.
At no time does any employee of King Cole shelve any
of Independent's products. However, in rare instances
when shelves have been depleted of Independent's
products, King Cole's employees would bring such
products out if a customer requested the same and they
gave it to the customer if it was available in the
backroom. But King Cole's employees otherwise did not
stock the shelf. However, Independent's employees "very
seldom" left any extra stock in the backroom.
King Cole's meat department employees are
represented by a Meat Cutters' Union in a separate unit.
And at one King Cole store, Awrey's operates the bakery
concession with Awrey's own employees. Awrey's
employees are included in a separate unit and are not
covered by the contract between Local 876 and King Cole.
A collective-bargaining contract containing the
above-described Article 8(c) was executed on August 2,
1967. This clause forbids outside vendors, such as
Independent Biscuit Company, from shelving their
merchandise at King Cole's stores. Since August 2, 1967,
Independent Biscuit Company's employees have not been
permitted to place its products on King Cole's shelves.
However, outside vendors supplying potato chips and
breads, and outside vendors called "rack jobbers," have
been allowed to use their own employees to shelve their
own products on King Cole's shelves.
King Cole's stores received cookies and crackers from
Stella D'Oro, Swanson, and Archway. These were
delivered to the stores by the supplier's drivel-salesman
directly from the truck. No backroom reserve was kept of
the products of these three vendors. Other outside
suppliers of cookies and crackers divided such functions
among salesmen who took orders and truckdrivers who
delivered the merchandise so ordered. Crackers and
cookies were delivered to the stores at least once and, to
the busier stores, two or three times a week. But in all
cases the salesman or driver-salesman priced, put up,
rotated, dusted, and otherwise handled the products on
431
King Cole's shelves. They also removed damaged
merchandise from the shelves.
Cookies and crackers of other vendors were "very
seldom" kept in the backroom of King Cole's stores. Its
employees never shelved any of such backroom stock
except on the rare occasion when the shelves were empty
and a customer specifically requested such merchandise by
name. Special displays of cookies and crackers were built,
stocked, and serviced by the salesmen employed by the
vendor running the display.
King Cole sells Beech-Nut" and Gerber's baby foods.
These are delivered to King Cole's backrooms from a
warehouse of Abner Wolf, the distributor. However, such
foods were then placed on King Cole's shelves in the
selling portion of the stores by the baby foods salesman
shortly after delivery had been made to the backroom. He
also rotated, straightened, and dusted such merchandise.
Such salesmen called at the stores once a week.
Very rarely did outside vendors put up displays of baby
foods in the stores. And "basically" the baby foods were
stored on the shelves, so that not more than one or two
cases remained in the backroom as a reserve. If shelves
became vacant a store employee used this backroom
supply to replenish them.
King Cole purchases spices from Frank Tea and Spice
Company. Like the baby foods, they are distributed to
King Cole's backroom from a warehouse and then are
priced, rotated, dusted, and placed on the shelves of the
store by Frank's salesman shortly after delivery has been
consummated to the backroom. Salesmen also removed
damaged merchandise. Generally, King Cole kept no
reserve of spices in the backroom. Special displays of
spices were put up and serviced by such salesmen.
King Cole's employees, exclusively shelve its purchases
of salt, "Lawry's" seasoning, "Adolph's" meat tenderizer,
and "Accent" seasoning, and also perform all functions
related to shelving such products. However, these products
are not supplied to King Cole by Frank Tea and Spice
Company.
7. As to Allied Supermarkets, Inc.
Allied Supermarkets, Inc., operates 92 supermarkets in
the Detroit, Michigan, area. These are covered by the
August 2, 1967, collective-bargaining contract between
Local 876 and Respondent Employers. Allied has
purchased biscuit products from Independent Biscuit
Company for 20 or more years They have been placed on
Allied's shelves by Independent 's salesmen who came to
Allied stores at least once a week. In most cases
Independent's employees placed Independent's
merchandise on Allied's shelves in the selling area of the
stores and did not place any excess stock in Allied's
backroom.
Meat department employees in Allied's stores are
represented by the Meat Cutters Union in a separate unit.
In some of Allied's stores Awrey Bakery operates the
bakery concession. Awrey uses its own employees, who
are in still another unit than Allied's employees other than
meat department employees.
Allied purchases cookies and crackers from National
Biscuit Company, and Sunshine Biscuit Company, and
Swanson's Cookie Company. Swanson distributes "Stella
D'Oro" and "Archway" lines by having its
driver-salesman deliver directly from Swanson's truck to
Allied's stores. Said salesman shelves Swanson's products
in the allocated selling area of Allied's stores. In the case
of National and Sunshine, a salesman took the order
432 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
from, and a truckdriver delivered the merchandise to,
Allied's stores. As soon as possible following such delivery
the salesman came to Allied's stores, where he shelved
said merchandise.
Said driver-salesmen and salesmen, who came from one
to three times a week, not only shelved their respective
products but they also priced, aligned, and rotated the
merchandise according to a code thereon, replenished the
shelves with the product, and removed damaged and
unsalable items from the shelves. They also put up and
maintained point of purchase advertising material and
devices as well as special displays.
Allied keeps a backroom supply of cookies and
crackers Salesmen of outside vendors moved 90 percent
of this from the backroom to the store's shelves.
Nevertheless, when a shelf became empty the store's
employees replenished the shelves from this backroom
stock. Such situation affected about 10 percent of the
shelving done; but this happened only in the case of
crackers and also one brand of cookies called "Oreo"
made by Sunshine Biscuit Company, and then only in
Allied's high volume stores. The extent of such
replenishing by Allied's employees was "very little"; and,
when it occurred, it usually took place on a weekend.
Allied handles Clapp's, Gerber's, Heinz, and Beech-Nut
baby foods.2 Salesmen of these suppliers took orders and,
after the merchandise was delivered to Allied's backroom,
shelved it (other than Clapp's) in the selling areas of the
stores. Clapp's was shelved by Allied's employees. Such
salesmen other than Clapp's also price tagged and rotated
their products on the shelves. Store employees "very
little" shelved these products other than Allied's own
brand, "Food-Club." Its employees exclusively place on
its shelves "Food Club" baby foods. Although special
displays of baby foods were not common, said salesmen
also set up and maintained them when they were used.
Allied also sells Durkee and Spice Island spices. These
are shelved by the salesmen of said suppliers, although
they were delivered to Allied's backroom by Allied's truck
from its warehouse. Such salesmen also price tagged such
spices. Allied's store employees shelved these spices "very
little," i.e., during Thanksgiving time they replenished
shelves with poultry seasoning and similar spices.
However, Allied's store employees have exclusively
shelved "Arrow Brand" pepper, "Morton's" salt,
"Diamond" salt, "Lawry's" seasonings, "Accent"
seasonings, and "Adolph" meat tenderizer and seasonings,
and have performed the related functions in connection
therewith, such as rotating and pricing the merchandise.
Since August 2, 1967, Independent still sells to Allied
but Independent's employees have not been able to stack
their Employer's products on Allied's shelves by reason of
Article 8(c) mentioned above. However, even prior to
August 2, 1967, Allied's own employees themselves
exclusively put up on Allied's shelves cookies having the
brand names of "Golden," "Cadbury," "Zion,"
"Mother's," and "Delicious." These brands, however,
known as "warehouse items," were not brought to Allied's
stores by outside vendors; rather, the supplier, or
manufacturer, i.e., the outside vendor, delivered them
directly to Allied's warehouses, whence they were
delivered to Allied's stores by Allied's own truckdrivers in
Allied's trucks. Nevertheless, Independent's products were
always delivered directly to Allied's stores where they
'Allied also sells its own private brand of baby foods called "Food
Club" This about 3 years ago displaced Clapp ' s baby foods , so that
Clapp ' s for some time has not been carried by Allied
were shelved by Independent's salesmen, and were never
"warehouse items."
8. As to Vescio, Inc.
Vescio, Inc., has 27 stores or supermarkets, 8 of which
are covered by the collective-bargaining contract between
Local 876 and the other Respondents. It has purchased
products from Independent Biscuit Company for the last 3
years, which were delivered in the manner described
immediately hereafter.
First, Independent's salesman visits the store to take an
order. Later, an Independent truck delivered the
merchandise to the store. Not long after that
Independent' s salesman returned to the store and placed
the merchandise on Vescio's shelves in the selling area of
the store. If, after the shelves were filled, surplus
merchandise remained, it was placed in Vescio's
backroom by Independent's salesman. This method of
bringing Independent's products to Vescio's stores
occurred two or three times a week, "depending on the
volume of the store." Ordinarily Vescio's employees did
not stock this merchandise on the shelves, but if necessary
they would do so. This was "not the usual thing."
Vescio's meat department employees are in another unit
and are covered by a different collective-bargaining
contract with the Meat Cutters Union.
Since August 2, 1967, Vescio still buys from
Independent, but this merchandise is stacked on the
shelves only by Vescio's employees. Independent's
employees are forbidden to do such work under Article
8(c) mentioned above.
During the course of the negotiations in 1967 for a
collective-bargaining contract with Local 876, the Union
originally requested a clause that gave employees of
Respondent Employers all the work of shelving the
merchandise of outside vendors. In claiming this work,
Local 876 expressed concern over a loss of jobs and job
opportunities if outside persons, rather than those in the
bargaining unit of Local 876, did the shelving of goods in
the stores. Local 876 regarded all shelving of merchandise
at the stores as within its exclusive province and wanted,
once and for all, to stop persons outside the bargaining
unit from performing this work.
Vescio's employees prior to August 2, 1967, placed a
great majority of products, other than Independent's, on
the shelves in the selling area of Vescio's stores.
Vescio purchases cookies and crackers from outside
vendors besides Independent Biscuit Company, such as
Hekman Biscuit Company, National Biscuit Company,
Swanson Cookie Company, and Stella D'Oro. The
salesmen or driver-salesmen of such other suppliers
shelved such merchandise in Vescio's stores, performing in
connection with such shelving work functions similar to
those of Independent's salesmen. In such cases the store's
employees replenished shelves with merchandise obtained
from the backroom stock reserve except in a few stores
which did not keep a backroom supply. Such shelving
occurred when the shelves or racks became empty between
visits of the salesman or driver-salesman. However, Vescio
also handled other brands of cookies and crackers which it
kept in its own warehouses. These were shelved in its
stores by its own employees exclusively. The
above-mentioned suppliers of cookies and crackers also
built displays at Vescio stores. Salesmen of the suppliers
built and stocked such displays.
Vescio also sold Gerber and Heinz baby foods. These
baby foods were first delivered to Vescio's warehouse by
RETAIL STORE EMPLOYEES, LOCAL 876
Abner A. Wolf, a wholesaler of these items, and from
there it was brought to the backrooms in Vescio's stores
by Vescio's trucks It was customary to maintain a
backroom reserve. Thereafter, Gerber's salesman shelved
and rotated its merchandise at the stores and removed
damaged and overage items. Such salesmen called at least
once a week. Vescio's employees replenished the store's
shelves if they became empty at any time. Baby food
secondary displays were also put up at the stores by the
salesmen, but this happened infrequently.
At its stores Vescio also sold spices bought from Frank
Tea and Spice Company and spices under the brand name
of "Durkee." These were delivered to Vescio's warehouse
by the supplier; and from there to the backroom of the
stores of Vescio by the latter's trucks. Thereafter, the
supplier's salesman placed this merchandise on the shelves
of the stores by taking it from the backroom. However
the employees of Vescio's stores replenished empty shelves
between visits of the salesmen. This was rare. Such
salesmen also built and stocked secondary or special
displays
Vescio also buys soft drinks from some of the Charging
Parties in Case 7-CE-13. The manner of storing such
merchandise in the backrooms and its being racked on the
shelves of Vescio's stores has already been described
elsewhere herein. It need not be repeated here except to
say that evidence from Jack A. Perkins, an officer of
Vescio, confirms on this issue that given by witnesses
employed by the said Charging Parties
Vescio carries salt, food seasonings known as "Accent"
and "Lawry's," and "Adolph" meat tenderizer. This
merchandise is placed on the shelves of its stores
exclusively by its own employees.
Since August 2, 1967, Article 8(c) has prevented the
employees of suppliers to place on Vescio's shelves the
cookies, crackers, and beverages of the Charging Parties
in Case 7-CE-13, as well as the spices and baby foods
mentioned herein.
9. As to Chatham Supermarket, Inc.
Chatham Supermarket, Inc., operates 21 retail food
stores in the Metropolitan Detroit, Michigan, area. All
are covered by the collective-bargaining contract between
Local 876 and the other Respondents. It has purchased
biscuit products from Independent Biscuit Company for
many years. Prior to August 2, 1967,,Chatham received
merchandise from Independent in the manner described in
the next paragraph.
Independent' s salesman came in once a week to take an
order. Then the goods were delivered by Independent's
truckdriver. Later Independent' s salesman returned in the
same week to place these products on the shelves allotted
to Independent. Generally, no reserve supply was stocked
in Chatham's backroom as the capacity of the shelf space
assigned to Independent held sufficient volume for a week.
However, Chatham's employees performed a "leveling"
function, i.e , they moved Independent's products from the
rear to the front of the shelf, when necessary' to make
them more readily accessible to the store's customers.
Meat department employees in Chatham's stores are in
a separate bargaining unit and are represented by the
Amalgamated Meat Cutters Chatham's bakery products
are sold by concessionaires, Awrey's in some stores and
Sander's in others. Employees in this department are
employees of Awrey's or Sander's, are not employees of
Chatham, and are in a different unit.
433
For the last 5 or 10 years Chatham has carried on its
shelves its own private brand of cookies. At one time they
were called "Dixie Belle," but currently they are "Staff."
They are brought to Chatham's stores from one of its
warehouses and are racked on Chatham' s shelves
exclusively by its own employees who are in the
bargaining unit represented by Local 876. In putting such
private brands on the shelves, Chatham's employees
perform the same functions as Independent's employees
when the latter place Independent's cookies on Chatham's
shelves
Chatham's meat, however, is racked exclusively on the
shelves by its meat department employees who are in a
separate unit and are represented by a Meat Cutters'
Union. Further, Chatham has granted a bakery concession
to Awrey's and Sander's. Employees of these latter two
concessionaires are not employees of Chatham, are in a
separate unit , are covered by a different
collective-bargaining contract, and exclusively rack the
products of Awrey's and Sander's. Nevertheless, neither
they nor Chatham's meat department employees rack any
other merchandise on Chatham's shelves.
Generally, Independent's products are not carried in
Chatham's backroom as Independent' s salesman keeps the
shelves filled with Independent's merchandise. Hence,
there has been no replenishing of Chatham's shelves with
Independent's goods by Chatham's employees.
Replenishing means taking merchandise from a container
and placing it on the shelf. Levelling or facing a shelf
means arranging merchandise on a shelf, after it has been
placed there, in a manner which will facilitate a
customer's reaching it, and may include bringing products
forward from rear to front and reducing four-high stacks
to two-high. When products are brought forward on a
shelf more of the same are placed in the rear.
Independent's salesmen replenish and level Chatham's
shelves with Independent's cookies and crackers. In
addition they check codes on merchandise to be sure it is
not "overage" and thus keep it fresh.
Chatham, which operates retail food stores in the
Detroit, Michigan, area , purchases cookies and crackers
from Sunshine Biscuit Company, National Biscuit
Company, Hekman Biscuit Company, and "Stella D'Oro"
and "Archway" brands thereof from Swanson's Cookie
Company. These were shelved in Chatham's stores by the
route salesman or driver-salesman, who in general also
left a small surplus stock in the backroom of such stores.
However, "Archway" merchandise was "definitely not"
stored in the backroom and "Stella D'Oro" was so stored
only during the Christmas season. Shelves were generally
replenished by such salesmen from the backroom stock,
although the store's employees also performed this
function when shelves became bare between visits of the
salesmen . "Very little" was so shelved by the store's
employees.
Cookie and cracker salesmen called at Chatham's
stores at least twice a week. Other duties of salesmen in
connection with the shelves included pricing, rotating,
levelling, dusting, and removing damaged merchandise. In
addition to replenishing shelves on these occasions,
salesmen also at times built and stocked cookie and
cracker special displays at the end of aisles at Chatham's
stores. Such displays were replenished solely by the
salesmen . Salesmen also put up advertising material in
connection with their products on the shelves or in special
displays.
Chatham purchases baby foods from Beech-Nut and
Gerber. These are delivered to Chatham's backroom from
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a warehouse After such delivery, Beech-Nut's and
Gerber's salesmen price tag and place the merchandise on
Chatham's shelves. Such salesmen also rotate, according
to a code thereon, the merchandise to assure freshness,
and also level and dust it. Salesmen also occasionally put
up and maintained displays of baby foods.
Chatham at one time purchased "Durkee" brand spices
from Frank Tea and Spice Company. They were
distributed and shelved in the same manner as baby foods,
i.e., delivery was, made to Chatham's stores from a
warehouse and the Frank salesman thereafter shelved and
serviced them at Chatham's stores. This meant that some
stock was left in the backrooms of Chatham's stores.
Soft drinks, however; were delivered to Chatham's
stores by,the salesman or, in the case of Canada Dry, by
a driver. Nevertheless, the merchandise in all instances
was placed on Chatham's shelves by the salesman of the
particular seller. This refers to the eight Charging Parties
in Case 7-CE-13. Surplus stock was stored in the
backroom by the salesmen, or by the truckdriver of
Canada Dry. In the case of Canada Dry, its salesman
serviced a Chatham store the day after Canada's
truckdriver delivered the merchandise to Canada's
backroom. In the case of the other seven Charging
Parties, their salesmen shelved and serviced the stores at
the time ,they delivered the merchandise. Canada's
salesman called at Chatham's stores at least once a week
and the salesmen of the other Charging Parties at least
twice a week. At Chatham's larger volume stores such
calls were made twice a week by Canada's salesmen and
three or four times a week by the other salesmen
mentioned in this paragraph.
Chatham allowed soft drink suppliers to store
merchandise in the backroom during the latter part, but
not in the first part, of the week. On rare occasions
Chatham's, when shelves became empty, employees
replenished shelves with backroom stock of soft drinks.
"Staff" is Chatham's private brand of soft drinks and
cookies and crackers. "Staff" beverages are placed on
shelves exclusively by Chatham's employees. This was also
true of "Mavis," formerly also a private brand of
Chatham's soft beverages
Backroom stock of all the Employer Charging Parties
is placed on shelves by Chatham's employees if shelves
become empty. "Generally the shelves do not become
bare between visits of the salesmen.
Salt is shelved exclusively by Chatham's employees.
The above describes procedures at the stores comprising
Chatham's district on the West Side of Detroit. Practices
at its East Side stores are delineated below.
At Chatham's stores in its District 1, covering Detroit's
East Side, cookie and cracker salesmen generally came to
its stores three times, but to some twice, a week
Generally, the salesman came shortly after such
merchandise was delivered, and he then shelved it. This
did not apply to "Stella D'Oro" and "Archway" cookies
and crackers, for their driver-salesmen shelved such
merchandise immediately upon delivering it themselves to
Chatham's stores in all instances the employees of the
outside vendors of cookies and crackers not only shelved
such products but also rotated, dusted, relocated, and
price tagged the same. They also put up special displays
of their products in Chatham's stores and replenished such
displays.,
Generally, no backroom stock was maintained in
"Stella D'Oro" and "Archway" cookies and crackers; but
some such reserve was kept for special occasions, such as
a sale thereof or at Christmas time. But a backroom
surplus was retained of all other cookies and crackers.
Sometimes employees of the stores replenished shelves
with backroom stock, but when this was done it occurred
more often with crackers than with cookies, as crackers
were a faster moving item.
No difference exists between its West Side and its East
Side districts in Chatham's method of obtaining and
shelving (a) its baby foods, which are purchased from
Gerber's and Beech-Nut, and (b), its spices, which are
obtained from Frank Tea and Spice Company and
Durkee.
Spice racks in the stores are the property of the
supplier and not of Chatham. Although some reserve of
spices was kept in the backroom, it was not for the
purpose of replenishing shelves. Special displays of spices,
erected at Thanksgiving and Christmas time, were set up
and maintained by salesmen of the supplier. Special
displays of baby foods occurred only when the supplier
promoted orange juice. These also were set up and
maintained by the supplier's salesmen.
Chatham's East Side stores buy soft drinks from the
Charging Parties in 7-CE-13. The salesmen of such
outside vendors call on the stores at least twice, and, in
some cases, three and four times a week. Substantially,
the same procedure is followed here as in Chatham's West
Side stores in delivering and shelving soft drinks, including
the slight difference in connection with Canada Dry's
methods. However, a few stores occasionally have their
employees replenish shelves with Coca-Cola and
Pepsi-Cola over some weekends because the shelves
become depleted. In addition, salesmen of the outside
vendors performed such chores as pricing and rotating the
product, removing damaged items, and setting up point of
purchase advertising material.
Chatham's East Side stores also sold a brand of soft
drink known as "Staff," which was kept in Chatham's
warehouse. It was delivered, stored in the backroom,
shelved, and otherwise handled exclusively by its own
employees at its stores.
10. As to Dexter-Davison Markets, Inc.
Dexter-Davison has been in the retail grocery business
for about 40 years. It has two stores, one in Detroit, and
one in nearby Oak Park, and purchases products from
Independent Biscuit Company, Hekman Biscuit Company,
Sunshine Biscuit Company, and S & M Distributing
Company. S & M distributes "Stella D'Oro" products.
Also Dexter-Davison purchases spices under the brand
names of Durkee's, Spice Islands, and Hudson's, and
baby foods from Gerber's, Beech-Nut, and Heinz.
Durkee's products are distributed by Thompson-Jackson
Associates, food brokers, while McMahon and McDonald,
food brokers, distribute Spice Island's products. In
addition, Dexter-Davison purchases spices from Frank
Tea and Spice Company.
Each of the above enumerated suppliers of spices
delivers and shelves its products at Dexter-Davison stores
in substantially the same mode of operation. First the
salesman takes an order which is later delivered in a day
or two. The following week the salesman again comes to
the store and places his particular products on the shelves
allocated to his Employer, and again takes an order. Then
he returns to place the spices on the shelves the next week
after delivery has been made. This procedure is repeated
once each week. Only a very small inventory of spices is
kept in the backroom. Dexter-Davison's employees do not
replenish its shelves with spices. However, if the shelves
RETAIL STORE EMPLOYEES, LOCAL 876
are bare, and a customer requests such products, such
employees will bring the same from the backroom.
A slightly different procedure is followed by the baby
food suppliers. In such instances a supply is left in the
stockroom of Dexter-Davison's stores. This is used by the
supplier's salesman to replenish the store's shelves when
he calls at the store once a week. At this time he will, if
the supply in the stockroom is low, write an order for
more baby foods, and such foods will then be delivered
the following day to the store's stockroom. This is
repeated once each week. Dexter-Davison employees do
not replenish shelves with baby foods. If the shelf is bare,
however, such employees will replenish them.
Suppliers of cookies and crackers generally pursue the
following method of providing Dexter-Davison with their
products. First a salesman takes an order, which is
delivered to Dexter-Davison's backroom the next day.
Shortly after delivery the salesman comes to the store
where he places such products on the shelves. Then at the
end of the week the salesman returns to replenish and
straighten out shelves for the weekend. However, these
suppliers carry no inventory of Stella D'Oro products and
a very small inventory in Dexter-Davison's backroom or
warehouse of the products of the other of the
above-named suppliers. "Very little" replenishment of
shelves with cookies and crackers is done by
Dexter-Davison's own employees. This occurs only if a
customer requests such products when a shelf is
completely empty. This is an infrequent event.
Since August 2, 1967, when Article 8(c) went into
effect, only employees of Dexter-Davison now rack the
shelves with the above products and salesmen of the
suppliers have not been permitted to place the same on
the shelves in the selling area of Dexter-Davison's stores.
However, Dexter-Davison still buys these products from
the same suppliers.
Prior to August 2, 1967, Dexter-Davison's employees
put up on shelves an overwhelming majority of the
products other than those put up by outside vendors or
suppliers.
11. As to Swanson Cookie Company
Swanson sells "Archway" and "Home-Style" cookies
through distributors. These are delivered by trucks to
retail stores by a Swanson representative, accompanied by
an employee of a distributor who is an independent
contractor. Upon delivering, the representative and the
distributor examine the shelves allotted to Swanson's
products and rotate the merchandise for freshness,
bringing the back products forward and filling the spaces
so created in back with fresh merchandise. Dates of
merchandise are determined by codes thereon. They will
also remove damaged or "out-of-order" merchandise.
Fresh merchandise is placed on the shelves by the
distributor, obtaining the same from the truck. Such visits
are made once or twice a week, according to the volume
of a store. No stock whatsoever is stored in any store's
backroom. Except in "isolated" cases (not over once or
twice a month) of promotional campaigns, if shelves
became bare of Swanson's product, it would be incumbent
upon a store desiring immediate replenishment of shelves
to call Swanson which, in turn, would request a
distributor "to render the extra service." During
campaigns extra stock was left for the store's employees
to stack. Title to most of the shelves or racks is in
Swanson and not the store. However, in some stores
ownership of the racks is in the store.
435
The foregoing method of delivery was followed for
about 15 years prior to August 2, 1967. Since then,
because of Article 8(c), only employees of the stores have
shelved Swanson's merchandise. However, the stores still
buy Swanson's products.
12 As to, Stella D 'Oro Biscuits
For about 14 years, the biscuits and related products
bearing the trade name of "Stella D'Oro" are distributed
to the stores of Respondent Employers by S & M Biscuit
Distributing Company. These are delivered once or twice
a week by S & M's driver-salesmen, who are
self-employed persons operating their own trucks and
belong to a Teamsters Union. These driver-salesmen
obtain their merchandise from S & M's warehouse. When
they arrive at a store, they remove damaged products and
rotate and replenish the racks or shelves. This occurs
about once a week in most stores and twice a week in the
bigger volume stores. But no merchandise is left in the
backroom of any store, and no replenishment of shelves
has been made by a store's employees.
Since August 2, 1967, by reason of Article 8(c), only
employees of the stores shelve S & M merchandise,
although such stores still buy the same.
13. As to Durkee's Spices
A brand of spices known as "Durkee's" is sold to the
stores of some of Respondent Employers by
Thompson-Jackson Associates, food brokers. The sale is
made by Thompson-Jackson's salesmen. They are actually
distributed to the backroom of such stores by
Abner-Wolf, a division of Respondent Allied
Supermarkets. Such salesmen first obtain orders, after
which a delivery is made to the store's backroom by
employees of Abner-Wolf. It is stocked in the backroom
by a store's employees. During the following week the
salesman visits a store and removes damaged goods from
shelves, rotates merchandise on the shelves, and
replenishes the shelves. This requires 2 or 3 hours at each
store. On this occasion he also writes an order for the
following week. This procedure is repeated at least once
each week, and may occur twice a week in stores
experiencing heavy sales.
"Very rarely" employees of the stores will take
Durkee's spices from the backroom and place them on the
racks or shelves in the store's selling space. This occurs
about twice a year: at Thanksgiving and Christmas, when
sales are substantially above those during the remainder of
the year.
Since August 2, 1967, because of Article 8(c), only
employees of the stores have racked Durkee's spices on
the shelves of a store.
14. As to Frank Tea and Spice Company
Frank sells spices to some of the Respondent
Employers . Frank's salesmen take order for spices, price
mark them , place spices on shelves of the stores buying
them , remove damaged stock, rotate the merchandise on
the shelves , and "keep [the stores] supplied with items as
reasonably required ." This occurred at least once a week
for over 20 years prior to August 2, 1967. Some of the
larger markets are so served as much as three times a
week during November and December.
In replenishing shelves Frank ' s salesmen obtain their
spices from the store's backroom where they are delivered
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by jobbers and unloaded by the store's employees prior to
the arrival of the salesmen. Although some stores allocate
space on their own shelves to Frank, in many others
Frank provides its own racks. These are specially suited to
the sales of Frank's products. In either situation Frank is
limited as to the amount of space in a store.
Although the shelves are stocked by Frank' s salesmen
"on rare occasions" the store's employees may perform
this function. About once a month Frank puts on a
promotional display at the stores by means of a large
advertising carton called a "dump." This dump is set up,
stocked, and replenished by Frank's salesmen. When a
shelf becomes empty it is not replenished until Frank's
salesman arrives, and he then fills the shelves. The store's
employees do not replenish the shelves even though
merchandise may be available in the backroom.
Since August 2, 1967, only store employees put up
spices on the shelves and replenish them with spices by
reason of Article 8(c), and Frank's employees are not
permitted to do this.
15. As to baby foods sold by Beech-Nut
Life Savers, Inc.
Beech-Nut sells various products, including baby foods,
to some of the Respondent Employers Its salesmen called
at the stores of Respondent Employers "anywhere from
once a month to twice a week," depending upon the
volume of a store. On such occasions the salesman put the
baby food on a store's shelves, filling them completely,
obtaining necessary amounts from supplies stored in the
backroom. They were delivered to the backroom by a
jobber or the store itself. In addition he rotated items
according to a prescribed schedule, removed unsalable
merchandise, and took orders for delivery to be made
before his next call. However, the store's employees also
replenished shelves if they became empty. This was
"infrequent."
Occasionally Beech-Nut's salesmen set up displays in
the stores and often placed the merchandise thereon.
However, the store's employees sometimes put the baby
food on such displays. r'
Since August 2, 1967, Article 8(c) has prevented
Beech-Nut's salesmen from stocking or replenishing the
shelves of the stores. This work has been done since that
date exclusively by the employees of the stores.
16. As to McMahon and McDonald, Inc.
As food brokers, McMahon and McDonald handle the
"Spice Island" line of spices and distribute the same to
some of the Respondent Employers. Since 1954, a
McMahon and McDonald salesman first calls on a'store
and writes an order. These orders are filled from the
central warehouse in Chicago and from there are shipped
and delivered to the backrooms of the individual stores of
the Respondent Employers involved. Thereafter, the
salesman calls again, at which time he stamps, rotates,
prices, and shelves the spices, obtaining supplies from the
backroom, and removes damaged merchandise. He also
takes an order on this latter occasion. This routine is
repeated once every 2 weeks to once a month according to
the volume of the store affected.
Some of the stock is stored in the backroom of a store.
The salesmen works this onto the shelves. However, "very
little" of the backroom stock is placed on the shelves by
the store's employees, i.e., when shelves became empty.
McMahon and McDonald also ran promotional
displays. Its salesmen placed spices thereon. If the display
became empty it was not replenished by the store's
employees. But such employees sometimes took down
such displays; in doing this the merchandise was restored
to the regular racks of the store. Occasionally the store's
employees straightened out and dusted "Spice Island"
merchandise
Although the stores still buy these spices, since August
2, 1967, the salesmen have not been permitted to fill and
replenish the shelves, and the store's employees now do
that work. This is required by Article 8(c) which
Respondent Local 876 and Respondent Employers are
enforcing. However, employees of the stores have at all
times, both before and after August 2, 1967, placed
"Morton," "Diamond," and other brands of salt, as well
as condiments like Ketchup, mustard, and dressings on the
shelves of the stores.
17. As to Seven-Up Bottling Company of Detroit
Seven-Up bottles and distributes soft drinks under, the
brand names of "Seven-Up," "Like," and "Softee Root
Beer ." For at least 15 years it has sold one or more of
these to all the Respondent Employers by delivering
directly to their stores. A driver-salesman (or a "swing
man," or extra route man, who relieves the regular
driver-salesman or route man on his days off) calls at a
store and estimates its needs until his next visit to that
store. This may be once or twice a week, depending on a
store's sales volume. In the majority of stores it was twice
a week. While there he "merchandises the product," sees
that it is properly positioned and priced, rotates the
merchandise to keep the older bottles in front, and
replenishes the shelves from stock in the backroom if
there is any in the backroom. Pricing is by means of a
bottle collar or tag. While there he will take an order and
assemble empty bottles found in the backroom and which
had been returned by the store's customers. He also
displays advertising and other merchandising aids, such as
point of purchase advertising, display pieces, pole
stackards, balances, easels, and price cards
Backroom stock is put on the shelves by Seven-Up's
employees.' However, if the shelves need to be replenished
between calls of Seven-Up's employees, it will be done by
the store's employees. The backroom reserve in a majority
of stores exceeds the amount put on shelves by the
salesmen.
By reason of Article 8(c), since August 2, 1967,
Seven-Up's employees have not been permitted to rack
the shelves in the stores of Respondent Employers; and
this work has been done since that date by employees of
the stores.
Prior to and since August 2, 1967, the customer of a
store returned empty bottles of Seven-Up's products to
obtain the refund of a deposit he made for the bottles.
The store's employees at all times received these empty
bottles, refunded the deposit to the customer, accounted
for the'bottles, and transported them to, and stored them
in, the store's backroom. However, the employees of
Seven-Up removed the empties from that backroom.
Since August 2, 1967, some, but not all bottles, may be
thrown away by the customer of a store, there being no
refund due him because no deposit was collected therefor.
'In the case of displays , the entire supply of stock is on display and none
remains in the backroom. In such situations store employees cannot
replenish the display because no stock is available in the backroom for
such purpose
RETAIL STORE EMPLOYEES , LOCAL 876
18. As to Wyandotte Coca-Cola Bottling Co.
Wyandotte Coca-Cola Bottling Co. sells "Coca-Cola,"
"Sprite," "Tab," and "Fresca" to some of the
Respondent Employers. Since 1937 its salesmen first enter
a store, check the stock and the display, rotate the stock,
price the merchandise, check the backroom supply, and
gather up empty bottles from the backroom. Then the
shelves are filled from the backroom supply and some
stock is left in the backroom.
Sometimes the salesmen put up merchandising aids
similar to those used by Seven-Up. They also placed stick
ins or price collars on bottles, price strips for shelving,
and a plastic rollout shelving called "mylar "
Stock in the backroom is placed on the shelves by
Wyandotte's salesman on each call. If shelves become
empty between such calls, the store's employees replenish
them from such backroom supply, and they also do the
other work of salesmen at the store, such as pricing and
rotating the merchandise
A salesman's duties also include the building and
maintaining of special displays apart from the shelves.
Store employees sometimes replenished these also.
The salesmen call twice a week at the stores to service
them: once at the beginning of a week and once just
before the weekend.
The store's employees perform substantially the same
functions regarding the return of Wyandotte's bottles and
refunds therefor as they do concerning Seven-Up's bottles.
It is not necessary, therefore, here to reiterate those
duties
Salesmen service all stores at least once a week. In high
volume stores the salesman called twice a week, once on
Monday or Tuesday and once on Thursday or Friday.
Generally the shelves are not depleted between the first
and second call, so that store employees do not replenish
them between such calls. However, the shelves sometimes
do become empty over the weekend; and, in such cases,
the store employees refill the shelves with reserve
merchandise from the backroom.
Since August 2, 1967, Wyandotte's employees have not
been permitted to place its products on the shelves of the
stores because of Article 8(c).
19. As to Detroit Coca-Cola Bottling Company
This company distributes in Wayne, Macomb, and part
of Washtenaw Counties, Michigan, soft drinks known as
"Coca-Cola," "Sprite," "Tab," "Fresco," and "Sunrise"
flavors. Among others it serves nine of the Respondent
Employers. The method of delivering and stocking shelves
in the stores of Respondent Employers corresponds to that
described more fully in connection with the operations of
Wyandotte. It is therefore not narrated at this point. In
addition to regular space allocated to it on a store's
shelves, Detroit Coca-Cola also is given space in a store
for secondary displays.
Deliveries by Detroit's salesmen to the stores are made
at least once a week, although they are made twice a week
to the busier stores. In a few instances stores are serviced
three times a week. Since 1940, on his calls the salesman
replenishes the shelves and any secondary displays from
stock in the store's backroom, and also replenishes the
backroom reserve with merchandise from his truck. If the
shelves and secondary displays became empty between the
salesman's calls, they were replenished from stock in the
backroom by employees of the store. Often the store
employees replenished on weekends more than the
437
salesmen. However, "the majority" of the merchandise
over a period of a week was racked by the salesman.
Shortly before August 1967, Detroit Coca-Cola offered
the stores the option of having the soft drinks delivered in
nonreturnable bottles, i.e., bottles for which no deposit
was required from the store's customer. In the case of
empty bottles returned to a store for a refund of deposit,
the employees of the store received and handled such
bottles, paid the customer his refund therefor, and stacked
them in the store's backroom. It was stipulated that this
same practice prevails in all the stores of the Respondent
Employers with regard to returnable bottles of soft drinks
sold to them by the eight Charging Employers in Case
7-CE-13.
Prior to August 2, 1967, Detroit's salesmen also at
times placed promotional advertising of Detroit's on the
shelves in the stores at the point where Detroit's products
were placed. Since August 2, 1967, because of Article
8(c), neither this practice nor the work of placing products
on the shelves of stores by Detroit's salesmen has been
permitted by Respondents. Also, prior to August 2, 1967,
Detroit's salesmen put up secondary displays or special
displays in the stores and placed Detroit's merchandise
therein Said Article 8(c) has also prevented them from
performing this aspect of their duties. In fact, Article 8(c)
makes it impossible for Detroit to use certain of its
advertising material in the stores except through
employees of the stores This material is called "carton
stuffers," point-of-purchase "neck ringers," and
"shelf-takers." See G.C. Exhs. 15, 16, and 18.
20. As to Pepsi-Cola Metropolitan Bottling
Company, Inc.
Pepsi-Cola Company sells soft drinks carrying the trade
name of "Pepsi-Cola," "Diet Pepsi," "Teem," "Mountain
Dew," "Patio Flavors," and "Nu-Grape." Among others,
it distributes these products to the 10 Respondent
Employers in this case. Its method of distributing
substantially is the same as that used by Seven-Up
Bottling Company of Detroit, more fully described above.
However, Pepsi-Cola Company's salesmen call on the
stores of Respondent Employers more frequently than
Seven-Up's, averaging at least two visits a week.
In delivering products to the stores, Pepsi-Cola
Company's route salesmen use merchandising aids such as
bottle collars or bottle ringers and carton stuffers as a
regular part of their duties.
Since August 2, 1967, Pepsi-Cola Company still sells to
the Respondent Employers, but the actual placing of its
merchandise on the shelves of the stores and the
replenishment of said merchandise on such shelves is done
by employees of the stores This is because Article 8(c),
which is being enforced, prevents Pepsi-Cola Company's
route salesmen from performing these functions.
21. As to Feigenson Brothers Company
Feigenson sells soft drinks Among others, it distributes
its products to all of the Respondent Employers. Its route
salesmen normally call on these stores twice a week, i.e.,
on Mondays or Tuesdays and Thursdays or Fridays. This
is in Detroit. Outside of Detroit, Feigenson has five
distributors. First a salesman fills the store's shelves with
merchandise obtained from Feigenson's stock in the
backroom. Then he stores additional merchandise in the
store's backroom, obtaining this from Feigenson's truck.
Some stores did not permit use of the backroom to keep a
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reserve. Hence, none was left in these stores . In addition,
he places shelf stuffers , carton stuffers , price tags , bottle
ringers or stuffers , and (formerly) shelf takers on the
merchandise or on the shelves, as the case may be, after
obtaining from the store the price to be charged for the
bottles. Salesmen also put up advertising material. In a
few stores , where the store manager did not allow ringers
on bottles , the salesman stamped on the price with
materials provided by the store . The salesman also takes
an order for the next delivery and removes empty bottles.
Salesmen also rotated Feigenson ' s products on the
shelves, i.e., as the front of the shelf became empty,
merchandise from the back thereof was put in such
vacated space and the rear was replenished with more
recent stock . They also set up and serviced secondary
displays at the stores. When necessary, a store's
employees replenished empty shelves from backroom
stock.
Since August 2, 1967, Feigenson ' s salesmen have been
prevented from placing any of its merchandise on the
shelves of the stores because of Article 8(c). However, this
does not affect delivery of, Feigenson ' s canned beverages,
as these have always been delivered to the warehouse of
the purchaser and not to the stores. Such warehouse
deliveries were made only to Chatham and Borman.
Employees of the stores shelved such warehouse products
exclusively.
22. As to Vernor's, Inc.
Vernor's sells its own ginger ale and also soft drinks
known as "Royal Crown " products. Among others, it
distributes these products to the stores of the Respondent
Employers . At most stores Vernor's salesmen call twice a
week ; in other stores they deliver once a week.
The procedure on delivering followed the ensuing
routine. A salesman filled the shelves , rotating the
merchandise, from stock he had on his prior trip left in
the backroom . He stamped prices on this merchandise.
Then he supplied the remaining stock to the backroom.
Employees of the store, sometimes replenished shelves with
this backroom reserve. Finally, he left the store taking
with him empty bottles which had been , returned for a
refund of deposit by the store . Salesmen also built and
stocked secondary displays of Vernor's products.
Salesmen place carton stuffers (see G .C. Exh. 21) on
Vernor's merchandise placed on the shelves, but the
store's employees performed this function on bottles left in
the backroom Vernor ' s salesmen also place special price
sheets on bottles stocked in special displays (see G .C. Exh.
22), or in connection with merchandise on the shelves (see
G.C. Exh. 23). They also put up posters in the stores in
connection with Vernor ' s special displays. See G.C. Exh.
24.
Since August 2, 1967, Article 8(c) has prevented
employees of Vernor ' s from shelving its products in the
stores.
23. As to H. J. Heinz Company
Among other things, Heinz is a producer and
distributor of baby foods . It sells such foods to the stores
of three of Respondent Employers . Heinz salesmen take
an order from the store. It is then delivered to the
Respondent Employer 's warehouse by Heinz, and thence
it is brought to the stores by such Respondent Employer's
truck . But the Heinz salesman stocks this baby food on
the shelves of the store , taking stock from the backroom
for this purpose. In shelving the Heinz baby foods, its
salesmen rotated the product after observing the coded
date thereon. But shelving was performed by the store's
employees on occasion.
Heinz' salesmen visited the stores twice a week. If a
store's shelves became empty before a salesman arrived,
the store's employees replenished the shelves with Heinz
merchandise from stock in the store backroom reserve.
Heinz also manufactures a private brand of baby foods
called "Staff" for Chatham Supermarket, Inc , one of the
Employer Respondents in this case. "Staff" is put on
Chatham's store shelves exclusively by its own employees.
Since August 2, 1967, salesmen of Heinz have been
unable to place its baby foods on the shelves of stores
because of Article 8(c).
24. As to The Sq uirt - Detroit Bottling Co.
This company, one of the Charging Parties in Case
7-CE-13, handles soft beverages known as "Squirt,"
"Hires" root beer , and "Nesbitt 's" orange drinks. Among
others, it sold these products to all the Respondent
Employers except Vescio, Inc. Delivery to stores of said
Employers is made through distributors who substantially
perform the same functions as salesmen.
A typical distributor himself calls on a store and then
delivers Squirt's product to it. However, in Madison
Heights and Garden City , both suburbs of Detroit,
Michigan , Squirt's distributors hire their own salesmen
who then deliver it to the stores . In either case the person
delivering to a store , who calls on them once a week,
stocks and replenishes the products on, its shelves, and
removes empty bottles. He also rotates the products on
the shelves so that old stock will be sold first , ascertaining
the date or shelf life of a product from the code stamped
thereon. See G.C. Exh. 27 for a coded bottle cap. In rare
cases, a store is serviced twice a week.
Squirt distributors and their salesmen also built
displays during promotion periods and kept such displays
stocked with merchandise during such periods. Price
collars also are placed on the bottles by said distributors
and their salesmen when stocking the shelves . Excess
stock is kept in a store ' s backroom in those stores which
permit use of the backroom for this purpose . If necessary,
i.e., between visits of a distributor or salesman, a store's
employees may remove merchandise from the backroom
to replenish shelves if a store permits storing in the
backroom . Such reserve stock was tagged by a price collar
placed on the product by a distributor or a salesman.
The foregoing practices continued for at least 13 years
prior to August 2, 1967. Since that date Article 8(c) has
prevented the distributors and salesmen from operating in
such manner , so that only a store's employees stock and
replenish the shelves.
25. As to Canada Dry Corporation
Another Charging Party in Case 7-CE-13 is Canada
Dry Corporation, which distributes ginger ale, club soda,
quinine water, bitter lemon, and numerous other soft
drinks under trade names such as "Canada Dry,"
"Wink," "Tahisian Treat," "Cactus Cooler," and
"Rudy." All 10 Respondent Employers buy one or more
of such products from Canada Dry. Deliveries are made
in cans or bottles. Ninety-five percent of such deliveries
are made directly to the stores, while five percent (all in
cans) are made to the warehouse of Respondent Borman
Food Stores, Inc. This 5 percent is shelved by Borman's
RETAIL STORE EMPLOYEES, LOCAL 876
employees exclusively.
Canada Dry does not use driver-salesmen, but it sells
through salesmen. Its salesmen sell the products, which
are later delivered to a store's backroom by Canada Dry's
trucks. After products have been delivered to a store, its
salesman stocks the shelves alloted to Canada Dry from
its merchandise in the backroom. Included in this trip are
such duties as taking orders, putting on bottle collars and
stuffers, dusting, rotating, and removing damaged
products. This occurs approximately twice a week either
by the salesman himself or the salesman supplemented by
another employee (in the merchandising department) in
those instances where the salesman is unable to make a
second I rip in a week. Such merchandising personnel
perform the identical duties of a salesman at the stores
except that they do not take buying orders for
merchandise.
In addition, a salesman must see that Canada Dry's
best sellers in a store have the most prominent spot and
the bulk of the area on the shelves. It may be described as
shelf management or space management. This often is
determined not only by the season of the year, when
certain items sell faster than others, but by variations in
neighborhoods
Since August 2, 1967, Canada Dry employees have not
been able to place its bottled products on the shelves of
the stores of Respondent Employers. This is because all
Respondents are enforcing Article 8(c). Accordingly, the
employees of the stores have been exclusively shelving
such products since that date.
26. As to Hiller & Lutey, Inc. d/b/a Shopping
Center Markets, Inc
Prior to August 2, 1967, Hiller purchased cookies and
crackers from National Biscuit Company, Sunshine
Biscuit Company, Hekman Biscuit Company, and the
"Stella D'Oro" and "Archway" lines from Swanson's
Cookie Company. Swanson's products were sold and
delivered by its driver-salesman who also shelved them at
the time of delivery. No reserve in Hiller's backroom was
maintained of any of Swanson's products. All other
cookies and crackers were ordered through a salesman of
the supplier and delivered by such supplier's truck-driver.
This occurred twice a week. Within an hour or two after
delivery, such salesmen arrived at Hiller's stores and
shelved such merchandise. All driver-salesmen and
salesmen priced and dusted, as well as shelved, his
merchandise, and also eliminated from the shelves any
damaged stock.
Except for Swanson's, the other suppliers of cookies
and crackers left a backroom supply in Hiller's stores.
Salesmen, who come twice a week, used this to replenish
shelves, but between their calls this stock was also used by
Hiller's employees to fill shelves which had become empty
thereof, an infrequent event. Special displays of such
products were set up and kept filled by the salesmen."
Hiller buys baby foods from Beech-Nut and Berber's.
These are delivered to Hiller's backroom ,f from a
warehouse, but the supplier's salesman uses this backroom
stock to fill the shelves in Hiller's stores himself. This
salesman comes twice a week. Such salesman performed
the same functions in connection with Hiller's stores as he
did with the stores of the other Respondent Employers.
Hence, these operations need not be here narrated again.
However, Hiller did not maintain any backroom stock,of
baby foods.
439
Hiller carried the spices of Durkee and also four or five
varieties of Frank Tea and Spice Company. In the case of
Frank's products, the spices were shelved by Hiller's
employees exclusively. However, Durkee's salesmen, who
came once a week, shelved its spices in Hiller's stores.
No displays of spices were set up at Hiller's stores. In
connection with baby foods and cookies, the salesmen of
the suppliers put up point of purchase advertising material
in Hiller's stores.
Salt, "Accent" seasoning, "Lawry's" seasoning, and
"Adolph's" seasoning and tenderizer are shelved, priced,
and levelled exclusively by Hiller's store employees. These
are not supplied by Frank or Durkee. Also, Hiller has had
for 15 years a racking process known as "Foodomatic,"
which apparently eliminates shelving. Its relevance was
not developed at the hearing.
B. Evidence by Respondents
None of the Respondent Employers offered any
evidence, but Respondent Local 876 adduced evidence
upon all issues Such evidence' is narrated in this
subdivision of the Decision.
1: As to Vescio, Inc.
Lillian Van Riper, employed by Vescio's and its
predecessor for the last 12 years in capacities as cashier,
clerk, head cashier, and produce manager, described her
duties with respect to the stocking of merchandise on
shelves. (A "clerk" is an employee of the store who,
among other things, places merchandise on the shelves.)
Her testimony follows.
Originally, a "drop" shipment of cookies or crackers
first came to the store. Then the clerks exclusively stocked
"all of them " In addition, the clerks price stamped,
levelled, and rotated such merchandise, including the
products of National Biscuit Company, Sunshine Biscuit
Company, Hekman Biscuit Company, and Abner Wolf.
Clerks also "placed" advertising material relating to such
cookies and crackers "a great many times." However,
Swanson's Cookie Company "Archway" products were
exclusively shelved by Swanson's salesmen.
But about 7 or 8 years ago this system changed. A
salesman of the supplier first obtained an order, following
which the supplier's truck brought the items ordered to
the store. Then the salesman "would follow that in and
stock the shelves" himself. However, clerks stamped on
any price changes arising during the salesman's absence,
and such practice by the clerks of changing prices
extended to merchandise stocked in special displays of the
supplier. And the clerks still continued to level or face the
merchandise if necessary between visits of the salesman.
Originally baby foods were shelved in the same manner
as cookies and crackers originally were -stocked. These
baby foods were drop shipped by Heinz, Gerber's, and
Beech-Nut. However, about 4 or 5 years ago this practice
changed. The supplier's salesman first took an order, after
which Abner Wolf, the wholesaler, delivered the
merchandise to Vescio's backroom. Then the salesman put
up the merchandise on the shelves. Thereafter, the clerks
levelled, rotated, and dusted such products, and
infrequently replenished the shelves
Similarly the original shelving of spices, those of Frank,
Durkee, and Lawry, corresponded to the original shelving
of cookies, crackers, and baby foods. But this system also
changed, so that salesmen of the suppliers stocked the
shelves of Vescio's after the spices were delivered by
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Abner Wolf. Nevertheless, Vescio's clerks stocked such
shelves between visits of the salesmen when necessary.
Spices are placed on racks owned by Frank or Durkee.
Soft drinks were delivered by the supplier's
driver-salesman, who placed them on the shelves and left a
reserve in Vescio's backroom. But clerks received empty
bottles from customers, returning these to cases in the
backroom, and also replenished the shelves when required.
Empties were carried to the truck by the driver-salesman.
However, Canada Dry products and Feigenson's throw
away bottles and cans were "always put up by the clerks."
Feigenson's regular bottles were shelved by its
driver-salesmen, but clerks replenished such shelves from a
backroom supply also left by said driver-salesmen until
about 18 months ago; since then the clerks have
exclusively stocked Vescio's shelves with such regular
bottles. Some brands of soft drinks, including
"Meadowdale" and other lines of Abner Wolf, have
always been exclusively placed on the shelves and rotated
by Vescio's clerks, who obtained the same from the
backroom stock surplus; such clerks also generally put up
displays in connection with such brands, although the
driver-salesmen did this "if they had time."
Another employee of Vescio's and its predecessor, Mrs.
Bernice Kemner, has worked for them as a cashier for the
last 11 years. During this period her duties included
stocking the shelves. When she began her employment, the
clerks exclusively put up cookies, crackers, spices, and
baby foods on the shelves, and rotated, levelled, faced,
and priced such merchandise They also put up advertising
material on or near the shelves and filled displays with
merchandise.
About 8 years ago a change occurred as to cookies and
crackers. First cookies and crackers were delivered and
shortly thereafter the supplier's salesman placed them on
the shelves. But the clerks, levelled, straightened, and
rotated the merchandise, and, if the prices changed, they
also stamped on the new prices. In addition, the clerks
replenished displays when they became depleted.
A similar change as to baby foods and spices took
place about 5 years ago. However, the clerks did very
little shelving because a backroom reserve was not usually
maintained But clerks did straighten, level, rotate, and
reprice baby foods put up on the shelves by the salesmen.
Certain brands of cookies and crackers have always
been shelved exclusively by the clerks, who also dusted,
rotated, priced, levelled or faced, and straightened them.
These are "Food Club," "Crest" oyster crackers, and
Abner Wolf's "Zion" fig bars.
Viola M Widmayer, another employee of Vescio's and
its predecessor, who has been employed by them for 11
years as a clerk-cashier, confirmed the above testimony of
Bernice Kemner. In addition, she mentioned that Vescio's
clerks also at all times exclusively shelved cookies and
crackers bearing the trade name of "Fireside" and
"Flavor-Kist," whereas the salesman exclusively shelved
Swanson's "Archway" brand of cookies and crackers.
2. As to Borman Food Stores, Inc.
David Birchett, an employee at a Borman store for 2
years testified as follows-
Although he worked for 2 or 3 months in bagging
orders, Birchett has since then been assigned to soft
drinks. His task is to stamp and shelve such products,
whether they were canned or bottled, obtaining such
merchandise from the backroom where it is stored.
However, "sometimes" the Coca-Cola, Feigenson, Pepsi,
Seven-Up, Squirt, and Vernor drivers filled the shelves
themselves with those drinks and left the remainder in the
backroom Birchett "worked up" this backroom reserve to
the shelves and thus replenished the shelves daily.
Another Borman employee who testified for
Respondent Local 876 is Duane Houck, now a business
agent and organizer for said Local. Houck started in 1949
with Borman as a stock boy. Leaving this Employer in
1951, Houck returned later but was not thereafter
employed as a stockboy He quit Borman in 1964.
In 1949 and 1950, Houck took cookies and crackers
from a supply in the rear of the store and racked them on
the shelf in Borman's store. This occurred at least three
times a week He also levelled such merchandise every
day. In addition he priced and repriced some, but not all,
thereof as "a great many" came prepriced to the rear
room. Finally, he also set up displays of this merchandise
at the end of the aisle, and also put up advertising
material "around the sales area" of cookies and crackers.
Thomas Wayne Bickford, a high school student, has
been employed at Farmer Jack's (a Borman store) since
November 10, 1966, as a stockboy This is a Borman
store. Among other things, he worked the cookie, cracker,
baby foods, and soft drink aisles. He placed nearly all
cookies and crackers on the shelves. However, "Stella
D'Oro" and "Archway" products were shelved by the
salesman, but not on the regular cookie shelf. Archway
and Stella D'Oro were placed in or at the end of an aisle
as displays. Moreover, National and Independent
salesmen did not shelve such merchandise; Bickford and
the stockboys did this.
Those cookies and crackers which he shelved Bickford
obtained from the stockroom in the rear of the store.
Among other duties, Bickford rotated, levelled, priced
(except prepriced items, such as "Shur-Good" and
"Dare"), and repriced cookies and crackers. He also built
displays and put up advertising material of such
merchandise.
Bickford also worked on baby foods for a week or a
week and a half. He also shelved this merchandise. And
he worked on soft drinks for a while, stocking the shelves
with such soft drinks obtained from the backroom. In fact
all stockboys exclusively shelved and priced such soft
drinks. At no time did the driver-salesmen of the suppliers
put soft drinks on the shelves; such employees left
merchandise in the backroom or in the aisles If
advertising material came with soft drinks, Bickford's
superiors asked the stockboys not to use it.
Another stockboy of Farmer Jack's is John Whitney,
also a high school student. He and the other stockboys
exclusively stocked, priced, levelled, and replenished
shelves with beer, wine, and soft drinks, such as Tico,
Canada Dry, Coca-Cola, Feigenson, Pepsi-Cola,
Seven-Up, Squirt, and Vernor's. Tico was obtained from
the backroom; the others from the aisle, if any was left
there by the driver-salesman, or from the backroom. If
soft drinks came accompanied with advertising material,
Whitney discarded such material, without using it, on
instructions of his superiors.
Maury,Gordon, who has been employed by Borman
since 1931, is now its buyer and merchandiser. His
testimony follows. Borman had warehoused, i e , had its
purchases delivered to its warehouse, crackers and cookies
under the brand names of "Flavor-Kist," "Zion,"
"Silvertown," and "Dutch Maid." Except for
"Flavor-Kist," these are handled and shelved exclusively
by clerks in Borman's stores. "Dare" merchandise, which
is sold by Independent, is not warehoused but is delivered
RETAIL STORE EMPLOYEES, LOCAL 876
to and shelved at Borman's stores by Independent's
salesmen.
3. As to Allied Supermarkets, Inc.
Gary D. Campbell, a business agent and organizer for
'Respondent Local 876, worked for Wrigley's
Supermarkets, a predecessor of Allied, from 1949 to 1954.
For the last 4 years thereof he worked as a stockboy or
clerk, i.e., he serviced shelves in the selling areas with
merchandise. His duties required him to fill the shelves
with cookies and crackers, pricing, repricing, rotating, and
levelling such merchandise when necessary. Such filling
occurred once or twice, but it could be as frequent as four
times a week. Nevertheless, he did not at any time place
"Stella D'Oro" or "Archway" products on the shelves,
and sometimes the salesman serviced the shelves for
National Biscuit. At times Campbell also built displays of
cookies and crackers
With respect to spices, the same procedure was
followed as with cookies and crackers other than those of
National Biscuit, "Stella D'Oro," and "Archway." But as
to the spices of Durkee's and Frank' s, the salesman
serviced the shelves 10 percent and the clerks 90 percent
of the time. On the other hand the clerks exclusively
shelved pepper and performed all functions pertaining to
such work.
As to soft drinks, the clerks collected and assembled
empty bottles and then the supplier's truckdriver removed
them from the backroom. The truckdriver filled shelves
with his merchandise, and left a backroom reserve. But
the clerks replenished shelves and displays of drink which
were set up by the supplier's driver-salesman Clerks filled
shelves twice as often as the driver- salesman.
David James has been employed by Allied for a little
over 16 years, and as a stock clerk since about 1952 or
1953. His description of practices follows. In 1952 store
clerks filled the shelves with cookies and crackers 50
percent of the time, the salesman performing the other 50
percent. Backroom stock was used for this purpose.
Clerks also daily levelled cookies and crackers on the
shelves, and they also tagged, priced, and repriced much
of said merchandise. Pricing of Independent's merchandise
was rare as it was delivered prepriced. In addition, the
clerks set up display signs for cookies and crackers.
Beginning in 1955 the salesmen of the suppliers of
cookies and crackers "would be doing more and more
work putting up the displays, filling the shelves, coming in
more often and filling them," and the clerks "were more
or less just filling in the holes on the weekends " Such
filling in the holes, i.e., replenishing shelves, by the clerks
"slowed down" because "more salesmen [came] in." And
for a while clerks continued to price, reprice, and level
cookies and crackers, and also built and maintained
displays of such products. However, "in recent years" the
salesmen have built the displays, so that the clerks were
limited to replenishing them when empty.
Originally the clerks put up all soft drinks on the
shelves from stock left in the backroom of the store by the
vendors. Later on, about 1955 or 1957, the
driver-salesmen of the vendor priced, stamped, and, put
such drinks on the shelves. However, stock was also left in
the backroom by such driver-salesmen. Clerks placed this
backroor stock on the shelves, but "not as much as we
were doing" before.
One of Chatham' s trainees for the position of store
manager is Joseph P. Collier. Previously he had been
employed over 20 years by Allied Supermarkets, Inc., and
441
its predecessor. His account of pertinent practices at
Allied's stores follows. While Collier worked at Allied, it
handled the soft drinks of Canada Dry, Coca-Cola,
Feigenson, Pepsi-Cola, Seven-Up, Squirt, and Vernor's, as
well as its own private brands labelled "Meadowdale" and
"Mavis." Its clerks exclusively handled and shelved
"Meadowdale," "Mavis," and "Dad's" root beer, and
performed all functions relating to such shelving.
All the other soft drinks mentioned in the preceding
paragraph were delivered and shelved by driver-salesmen
of the particular supplier. They also priced such
merchandise. A backroom reserve was also kept of fast
moving items like Coca-Cola, Pepsi-Cola, Vernor's, and
Feigenson, and also, at Christmas time, of Seven-Up,
Canada Dry, and Squirt. Both salesmen and Allied's
clerks used this backroom stock to replenish shelves, but
when clerks performed this task it usually, but not always,
happened on weekends. Approximately 50 percent of such
soft drinks, but, in the case of Pepsi-Cola and Coca-Cola,
about 75 percent, was shelved by the clerks.
4. As to Great Scott Supermarkets, Inc.
Procedures followed at Great Scott were described by
James Karosa, employed by it as a stockboy. After a
salesman took an order for cookies and crackers, the
truckdriver of the supplier delivered the merchandise to
the backroom of the stores. Then Great Scott's stockboys
aided the salesmen who "worked" it on to the shelves :n
the selling area of the store. In addition the stockboys
priced, rotated, and levelled cookies and crackers on the
shelves, and replenished the shelves with such
merchandise.
As to soft drinks, the supplier's driver-salesman stocked
the shelves with his product, leaving a reserve in the
backroom of the stores. This reserve was used by the
stockboys to replenish the shelves. But the stockboys
exclusively filled and replenished the shelves with
"Mavis," a soft drink stored in Great Scott's warehouses.
Another witness regarding procedures at Great Scott is
Edward Pearson, one of its district supervisors. He
oversees 16 stores as such. He testified in substance as
follows. Prior to August, 1967, Great Scott handled soft
drinks known as "Mavis" canned pop and "Dad's" root
beer, which were delivered to its stores from its warehouse
in its own trucks. Then its store employees, known as
clerks, exclusively filled the shelves, and kept surplus
stock in the backroom, of the stores.
As to Canada Dry, Coca-Cola , Feigenson , Seven-Up,
Squirt, and Vernor's soft drinks a different arrangement
prevailed. In such instances, the supplier's driver-salesman
filled the shelves, left some surplus in the backroom of the
stores, and took away empty bottles. But the clerks in the
stores used this reserve to replenish the shelves between
visits of the driver-salesman. These visits occurred two or
three times a week, depending on the store's volume.
About 65 percent of the stock on the shelves was placed
there by clerks and 35 percent by the driver-salesmen.
5. As to Chatham Supermarket, Inc.
One of Chatham's stockboys is Harvey Freedman, who
also attends Cooley High School. Freedman was hired
about a year and a half before he testified on February 5,
1968. An abridgment of his testimony follows. Prior to
August 2, 1967, Chatham handled its own brand of
cookies and crackers called "Staff." These were shelved
exclusively by Chatham's clerks.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the other hand, the products of all other biscuit
companies , except "Stella D'Oro" and "Archway," were
delivered to Chatham's backroom by drivers of the
suppliers and later were shelved by the salesmen of the
suppliers . And the clerks also shelved them , using the
backroom stock, but only "when we were told." Thus, the
clerks replenished the shelves . However "that was usually
every night." "Stella D'Oro" and "Archway" products
were not shelved by clerks but, rather, by employees of
the supplier thereof, Swanson's Cookie Company. In
shelving the above products of suppliers other than
Swanson's , Chatham's clerks rendered the following
services: they priced, repriced, and levelled the
merchandise , in addition to shelving and replenishing.
Chatham's clerks also exclusively shelved its private
brand of soft drinks sold under the trade name of "Staff."
Chatham also carried the soft drinks of Canada Dry,
Coca-Cola, Feigenson Brothers , Pepsi-Cola, Seven-Up,
Squirt, and Vernor's. The driver of such suppliers, who
came twice a week , filled Chatham ' s shelves with such
merchandise on his calls to the store; but also left stock in
the backroom . Some of this back stock was placed on the
shelves by these drivers. Between deliveries the clerks
replenished Chatham's shelves from this backroom supply.
Generally, the clerks put up on the shelves twice as much
of these soft drinks as the drivers of the suppliers.
Another Cooley High School student working for
Chatham as a stockboy is David Koski. He was hired
about August 1966. Koski's testimony corroborates that
of Harvey Freedman except that Koski did not reprice
any cookies or crackers.
Still another witness employed by Chatham is
Augustine Migliori , at present head dairy, but a grocery
clerk for 5 years before that. A summary of his testimony
regarding practices at Chatham is set forth at this point.
He-, too, corroborated Harvey Freeman ' s account of said
practices relating to cookies and crackers as narrated
above. In addition , he recounted the procedures regarding
baby foods and soft drinks at Chatham.
According to Migliori, baby foods may be classified in
two categories : those sold under the name of "Swift" as
one group, and those of Gerber's, Heinz, and Beech-Nut
as a second group. "Swift ' s" brand came from Chatham's
warehouse and was shelved exclusively by Chatham's
clerks. But those in the second group were usually shelved
by the supplier' s salesmen . They were shelved by
Chatham's clerks only "towards the weekend."
Continuing , Migliori observed that Chatham sold its
own "Mavis" and "Staff" brands of soft drinks which it
first receives at its warehouses. Thereafter they were
shelved at its stores exclusively by its clerks. A similar
practice was pursued as to Feigenson ' s canned soft drinks,
since they came from Chatham's warehouse. On the other
hand , the remaining soft drinks were shelved, and the
shelves were replenished , by driver-salesmen employees of
the suppliers , but the shelves were also replenished some
of the time by Chatham's clerks from backroom stocks
left by the truckdrivers. Drinks in this latter group
included the products of Canada Dry, Coca-Cola,
Pepsi-Cola, Seven-Up, Squirt, and Vernor's. However,
Canada Dry's truckdrivers did not shelve its products but
its salesmen did. But , since such salesmen came but once
a week or once in 2 weeks and sometimes but once a
month , Chatham's clerks shelved Canada Dry's
merchandise "most of the time ." He estimated that the
clerks shelved 95 percent of all soft drinks carried by
Chatham.
6. As to Pepsi-Cola Metropolitan Bottling Company,
Inc.
Roscoe Wayne McGehee, a" business representative of
Local 876, was employed as a driver-salesman by
Pepsi-Cola in the summer months of 1956. This job
entailed the delivering of Pepsi-Cola's soft drinks to the
stores of some Respondent Employers. His method of
operating involved the placing of merchandise in the
backroom of the stores and picking up empty bottles At
no time did he place merchandise on shelves or replenish
such shelves at the stores
IV. CONCLUDING FINDINGS AND DISCUSSION
A. As to Cookies and Crackers
For many years Respondent Employers (herein called
the Supermarkets) have purchased cookies and crackers
from various suppliers. In the early days such merchandise
was delivered unpackaged and, in such condition, was
placed on the shelves of supermarkets by clerks of such
stores. But at least since 1945, these products have been
delivered as prepackaged items It is such packaged
merchandise which is involved in this case.
1. The products of S & M and Swanson's
"Stella D'Oro" brand of cookies and crackers have
been distributed to the stores by S & M Biscuit
Distributing Company, and the "Archway" line by
Swanson's Cookie Company. Both "Stella D'Oro" and
"Archway" products have been so distributed by the
supplier directly to the supermarkets by a driver-salesman
employee of the supplier or outside vendor. Upon arriving
at a store such driver-salesman took an order and
immediately filled it from merchandise on his truck.
Thereupon, he placed the merchandise on the shelves, and,
in connection therewith, performed duties related thereto,
including ' pricing , rotating , levelling , rearranging, and
removing damaged or unsalable stock.
After completing the above-described functions the
supplier's driver-salesman left the store without leaving
any reserve supply of the merchandise in the backroom of
or elsewhere in the store. Hence, I find that no stock was
available in the store to replenish the shelves by clerks of
the store. Further, I find that such clerks did not place
"Stella D'Oro" or "Archway" products on the shelves
except in instances so exceptional that they may be
described as de minimis
2. Private brands
Many supermarkets have sold cookies and crackers
under private brand names, i.e., under names of
unspecified suppliers as distinguished from those expressly
mentioned in paragraph 14(a) of the Second Amendment
to Complaint. See G.C. Exh. 2. Those mentioned in said
paragraph 14(a) are Independent, S & M, Swanson's,
Hekman, National, and Sunshine. The private brand
products have been delivered by the suppliers to a
warehouse of a Respondent Employer.
When need arose for such merchandise at a
supermarket of such Respondent, it was trucked from
such warehouse to a backroom of the market. Clerks of
the store then took such merchandise from the backroom
and placed it on the shelves in the selling area of the
store. Some stock for replenishing the shelves was also left
RETAIL STORE EMPLOYEES , LOCAL 876
in the backroom at the time of delivery thereto from the
warehouse. Clerks also replenished such shelves from this
backroom reserve.
It is not necessary to enumerate all of these private
brands, since all of them were not carried in the
supermarkets of all Respondent Employers However, it
seems sufficient to identify several. They are "Zion,"
"Dutch Maid," "Staff," "Food Club," "Meadowdale,"
"Fireside," and "Flavor-Kist." I find that clerks
exclusively shelved these private brands, replenished the
shelves therewith, and performed all related duties
attendant upon these functions, such as pricing, levelling,
rotating, and arranging merchandise, and removing
damaged or unsalable stock.
If material, I further find that none of said private
brands was delivered or sold to the supermarkets, or
placed on shelves of the supermarkets, by any of the
distributors described in paragraph 14(a) of the Second
Amendment to Complaint.
Upon this branch of the case, it seems desirable to
mention, and I find, that some of the Respondent
Employers licensed independent concessionaires to operate
the bakery departments in their supermarkets. Such
licensees or concessionaires are either Awrey's or
Sanders'. Further, I find that employees of such
concessionaires are not employees of the supermarkets,
that employees of the concessionaires exclusively shelve
and replenish shelves with bakery products, and that
employees of concessionaires do not shelve or replenish
shelves with non-bakery products
3. Independent's products
Independent's method of distribution requires its
salesmen to obtain an order from the supermarket,
following which Independent's truckdriver delivers this
order to the supermarket's selling aisle or backroom. Not
long after a delivery is made the salesman completely
shelves Independent's merchandise in the store, placing
any surplus in the store's backroom. In addition to
shelving or racking this merchandise the salesman rotates,
levels, prices, and rearranges merchandise, and removes
damaged or unusable items.
Between calls of the salesmen empty shelves were not
always replenished by the store's clerks. In some stores it
was the practice not to replenish empty shelves. However,
these stores always honored a customer's request if such
customer specifically requested Independent's product by
name. In some other stores it was the market's practice to
direct clerks to replenish shelves with Independent's
products if stock was available in the store's backroom.
And in a very few stores Independent's salesman would be
asked to make a special delivery of merchandise if the
shelves became bare of Independent's products before the
next regular delivery thereof.
Occasionally, Independent erected promotional displays
in supermarkets. These were always set up and stocked by
its salesmen. However, on some weekends such displays
became sold out. When this occurred the store's
employees replenished the displays with Independent's
products.
Since August 2, 1967, Independent has continued to sell
and deliver its products to the supermarkets. Nevertheless,
since that date its salesmen admittedly have not been
allowed by the stores to shelve, rotate, level, price, or
arrange said products, or to replenish the shelves, as these
functions have been executed exclusively by clerks in the
stores. This situation has arisen because Respondents have
443
enforced Article 8(c) of their collective-bargaining
agreement.
The foregoing findings are based on the evidence which
I have credited and which, in large part, is not in dispute.
Evidence not consonant with such findings, regardless of
whether it was adduced by the Charging Parties, the
General Counsel, or Respondent Local 876, has not been
credited.
4. Hekman, National, and Sunshine
These three suppliers distribute cookies and crackers to
some or all of the supermarkets by the same method used
by Independent , i.e., although a salesman took the order
at the market a truckdriver later delivered the
merchandise thereto. Shortly after such delivery the
salesman arrived at the market where he stocked the
shelves with his product and performed related tasks
similar to those set forth above. And the store ' s clerks
sometimes replenished shelves if they became depleted
between visits of the salesman to the supermarkets. The
clerks obtained stock for such purpose from the reserve
supply left by the supplier ' s truckdriver in the store's
backroom . Such clerks also performed the related
functions mentioned above when they replenished shelves.
Hekman, National , and Sunshine also set up special
displays of their respective products at the Supermarkets.
In such cases the displays were built and stocked by the
salesmen of the suppliers . Nevertheless , on the occasion
when these displays needed replenishing , usually on some,
but not all, weekends , the store ' s clerks assumed the task
of filling the display and otherwise servicing it.
It was stipulated at the hearing , and I accordingly find,
that the parties who are Respondents do prohibit the
suppliers mentioned above from racking the shelves at the
stores of the Respondent Employers since August 2, 1967,
pursuant to Article 8(c) of their collective-bargaining
agreement It was further stipulated , and I find, that all
employees of Respondent Employers (except for those in
the meat departments) are represented by Local 876 and
are covered by a collective-bargaining contract between
Local 876 and Respondent Employers . This contract has
contained Article 8 (c) since August 2, 1967.
Finally, I find that the enforcement of Article 8(c) of
the collective-bargaining agreement by the parties thereto,
Respondents herein , in the manner described above,
violates Section 8(e) of the Act, in that it requires
Respondent Employers to cease doing business with four
vendors, Independent , Hekman, National , and Sunshine.
Although the Supermarkets still buy cookies and crackers
from the four vendors, the latter have been compelled to
abandon that part of their sale which includes shelving
and related services . This constitutes "cease doing
business" within the meaning of Section 8 (e) of the Act as
it requires a different method of doing business. Cf.
Amalgamated Meat Cutters , 113 NLRB 275, 277, 279,
enfd . 237 F.2d 20, rehearing denied at 27 (C.A.D.C.);
Boston Gas Company, 137 NLRB 1299, 1305, enfd. 320
F.2d 250 (C.A. 1). In this connection I find that the work
of shelving and related functions , performed prior to
August 2, 1967 , by driver -salesmen or salesmen of said
four vendors , is not part of the work of the clerks and,
therefore , not unit work. There are two reasons for this,
both of which I find as facts:
(a) The four vendors were selling a combination
consisting of crackers and cookies plus shelving thereof by
their employees . I find that this was an indivisible
combination , so that causing the Respondent Employers
444 DECISIONS OF NATIONAL LABOR RELATION&BOARD
to buy cookies and crackers without the accompanying
shelving services constitutes a change in the method of
doing business by said Employers with said four vendor:
Hence, I further find that the clerks acquired new work,,
and did not merely preserve traditional work, by the
enforcement of Article 8(c) of the contract.
(b) And I find that, to the extent that such shelving was
performed by employees of the four vendors, it was not
embraced within the work of the clerk's bargaining unit in
the stores of the Respondent Employers, was not
traditional clerks' work, and was not "fairly claimable" as
clerks' work. This is because I find that for a substantial
period of time prior to August 2, 1967, employees of the
vendors performed shelving and related services. Hence, I
find that this aspect of their work was not included in said
unit.
Merely because clerks performed other shelving in the
Supermarkets is not conclusive, for I find that "shelving"
is not the test of unit work. If it were, then the meat
department would be part of the unit, and so would the
bakery concessions operated by Awrey's and Sanders. Cf.
Mock Road Super Duper, 156 NLRB 983, 984-985, enfd.
39^ F.2d 432 (C.A 6). Rather, I find that the type of
work and the period of time prior to August 2, 1967, it
was performed is more significant. Of course this means
that some shelving was performed by clerks and this
shelving is comprehended within the clerk's unit. It
follows that this work done by clerks before August 2,
1967, is traditional unit work and may be the subject of
protection by Article 8(c) as such clause seeks to preserve
present work, rather than to acquire new work. See Dixie
Mining Company, 165 NLRB No. 49.
Nevertheless, it is desirable to make plain that Section
8(e) of the Act is not violated by said Article 8(c) of the
contract as applied to private brands of cookies and
crackers warehoused by Respondent Employers and
traditionally shelved by their clerks. I find that such
brands were not sold to the Supermarkets by the four
vendors, and that employees of the vendors at no time'
shelved these private brands. American Boiler
Manufacturers Association, 167 NLRB Nos. 79 and 80.
B. As to Baby Foods
Unlike cookies and crackers, baby foods were delivered
by the suppliers or vendors, Heinz, Beech-Nut, and
Gerber, to the warehouse of any Respondent Employer
purchasing the 'same. Thereafter the vendor's salesman
regularly called at the markets to obtain an order for his
product. Then the merchandise was delivered from the
warehouse to a back or storeroom in the market. Shortly
after delivery the salesman returned to the store and filled
the shelves from the goods which had been delivered to
the backroom. At the same time he performed related
functions, which are more fully described above in
connection with cookies and crackers. In the case of
Hiller & Lutey, shelving was performed by clerks where
such merchandise was vended by means of a
"food-o-mat."
Between calls of such salesmen the store or
supermarket clerks replenished the shelves if necessary.
This generally occurred on weekends when sales were
greater. However, clerks did not always replenish when
shelves became depleted, for sometimes they did no more
than bring out enough to satisfy the needs of a customer
specifically requesting such products.
Baby food salesmen rather infrequently also set up,
maintained, and dismantled special displays of their
products. But in Allied's stores the clerks usually
maintained and dismantled such displays.
In all stores where Heinz products were carried, such
products (other than baby foods) were shelved exclusively
by the store's clerks.
Since August 2, 1967, employees of Heinz, Beech-Nut,
and Gerber have not been permitted by Respondents to
shelve baby foods at the stores of Respondent Employers
because the parties to the collective-bargaining contract
have been enforcing Article 8(c) thereof Nevertheless,
Respondents since said August 2, have continued to
purchase baby foods from Heinz, Beech-Nut, and Gerber.
It follows, and I find, that said enforcement, to the extent
that it forbids shelving and associated practices by
employees of Heinz, Beech-Nut, and Gerber, as they
existed antecedent to said August 2, has caused
Respondent Employers to cease doing business with these
three suppliers of baby foods. Consequently, I, further find
that such enforcement violates Section 8(e) of the Act.
That such enforcement of Article 8(c) transgresses
Section 8(e) of the Act has been briefly considered in the
preceding subsection relating to cookies and crackers.
That reasoning is equally applicable to baby foods. In
addition, the following findings and comment pertaining
to baby foods seem germane.
(a)'I find that inventories of baby foods stored in the
backrooms of the Supermarkets were small; and that
Chatham and King Cole had adopted a policy of not
retaining backroom stock, so that a backroorti surplus at
Chatham and King Cole originated from overordering.
Thus, I further find that store clerks replenished baby
food shelves at infrequent intervals from backroom stock.
This demonstrates, and I find, that shelving of the baby
foods of Heinz, Beech-Nut, and Gerber, and the
accompanying associated services, were performed
principally by employees of said suppliers. Further, I find
that insofar as this was performed by said employees it
neither comprised work in the clerks' unit, nor was
traditionally clerks' work. Hence, Article 8(c) did not
preserve traditional clerks' work as applied to this work of
the employees of the suppliers but, instead, amounted to a
clause acquiring new or additional work for the clerks. If
it were the work of clerks, then it would be reasonable to
expect that, since their employer with its own employees
and trucks moved such merchandise from its warehouse to
the backroom of its stores, such clerks would then move it
from such backroom to the store shelves. Yet the clerks
did not touch said merchandise while it was stored in the
backroom but, instead, did nothing, thereby leaving the
task of shelving such products to the employees of the
baby food suppliers.
(b) Further, I find that Heinz, Beech-Nut, and Gerber
sold to the Supermarkets an indivisible combination
consisting of baby foods and associated services of
shelving, pricing, levelling, and rotating merchandise,
together with removal of damaged or otherwise unsalable
items. It is not necessary to determine whether such
services constitute an equitable servitude in chattels or
become part of a "tie-in" sale, within the meaning of
other branches of the law. International Salt Co., Inc. v.
U.S., 332 U.S. 392. Cf. Standard Oil Company v. U.S.,
337 U.S. 293; Columbia Broadcasting v. Amana
Refrigeration, 295 F.2d 375 (C.A. 7). It is sufficient for
present purposes to stress that the suppliers were selling a
unified, integrated, and single package deal consisting of a
product plus a service which went with the product. I find
this service is not traditional clerks' work and is not
"fairly claimable" as clerks' work. Such package deals are
RETAIL STORE EMPLOYEES , LOCAL 876
not uncommon, especially since the advent of vending
machines placed in several retail stores by the owner of
such machines. When the operator of a retail store elects
to have such machines installed and serviced in his store
by the owners of the machines it cannot be said that such
servicing constitutes work belonging to the store's
employees.
As found above, I reiterate that Section 8(e) of the Act
has not been transcended to the extent that Article 8(c)
applies to any work performed by the store clerks in
replenishing shelves with baby foods of these three
suppliers. And no violation is discernible - and I so find
- in extending the provisions of Article 8(c) of the
contract to baby foods marketed under private brand
names. This is because I find that shelving of such private
brands has traditionally been performed by store clerks
and has not been performed by employees of the suppliers.
As to these private brands Article 8(c) consititutes a valid
work preservation clause. Great A & P Co v.
Amalgamated Meat Cutters Union, 410 F.2d 650
(D.C.Mo.).
C. As to Spices
Delivering and shelving of the spices involved in the
complaint correspond to those followed in distributing
baby foods. These are the spices of Thompson-Jackson
Associates, distributing the "Durkee" line, Frank Tea and
Spice, distributing the "Franks" brand, and McMahon &
McDonald, Inc., distributing "Spice Island" commodities.
The procedure in getting the merchandise to the
consumer follows. These three suppliers, for a substantial
period of time preceding August 2, 1967, shipped their
products to a warehouse of each Respondent Employer
buying their spices. This merchandise was then
transported from such warehouse to the Respondent
Employer's market in its truck and then stored in a
backroom of the store. Thereafter a salesman of the
supplier regularly called at the market where he racked
the products on the store's shelves. In some instances the
spices were on a special rack supplied by the spice
company and placed in the selling area of the store. Other
duties discharged by the supplier's salesman when he
racked the merchandise included rotating and cleaning the
items, and removing damaged or unsalable products.
Between calls of the salesman the store's clerks
replenished shelves when they became empty. Because of
the lack of frequency of the salesman's visits such
replenishments were rare, and usually took place at
Thanksgiving and Christmas. However, clerks did not
always replenish empty shelves. In some stores clerks did
not refill empty shelves, but, instead, did no more than
bring forth enough to a customer who asked for such
merchandise which could not be found on the shelves. Acid
at some stores, including Food Giant, Chatham, Borman,
Great Scott, Lindy's, and King Cole, none or almost none
of the backroom stock was put on shelves by clerks, so
that all or practically all spices of these three suppliers
were shelved by their salesmen. At Hiller & Lutey, which
carried "Franks" line of spices, the calls of the salesman
were so infrequent that only the store clerks shelved
"Franks" spices, and the salesmen did not engage in this
function at such stores.
Further, I find' that all other brands and varieties of
spices than those of the three suppliers
(Thompson-Jackson, Frank, and McMahon & McDonald)
mentioned in the complaint (paragraph 14(b) of Second
Amendment of Complaint, G.C. Exh. 2), have been
445
shelved at all times prior to August 2, 1967, by store
clerks exclusively. These include salt (among which are
"Morton's" and "Diamond" brands), some pepper,
Lawry' s seasonings , Accent seasonings, Adolph's
seasonings and meat tenderizer, and all private brands of
their own sold by some of the Respondent Employers.
Also I find that since August 2, 1967, the salesmen of
the three suppliers of spices, Thompson-Jackson, Frank,
and McMahon & McDonald, have been prevented from
shelving the spices of their respective employers and have
not been allowed to perform services related to such
shelving. This is because Respondents have enforced
Article 8(c) of their contract so that only clerks have
engaged in such work since August 2, 1967. I further find
that such enforcement of said Article 8(c) transgresses
Section 8(e) of the Act as it amounts to a contract or
agreement requiring Respondent Employers to cease doing
business with the said three suppliers of spices.
It is my opinion, and I find, that the reasons given
above in finding a violation by Respondents in applying
said Article 8(c) to the products of the named cookies,
crackers, and baby foods vendors or suppliers are equally
pertinent here. They are here incorporated by reference
and need not be reiterated. Thus, I find that shelving of
the spices of these three suppliers, to the extent it is
executed by their salesmen, is not "fairly claimable" work
of the clerks in the bargaining unit to which Article 8(c) is
addressed, and that such shelving has not been traditional
work of the store clerks. There are two additional
grounds, peculiar to spices, for so finding.
(a) Clerks replenished spice shelves only spasmodically
or infrequently, and sometimes not at all, so that they
performed less replenishment of spices than of cookies,
crackers, and baby foods. Thus, a much larger percentage
of the shelving may be attributed to the efforts of the
salesmen of these three suppliers. In fact clerks were
unfamiliar with the manner of placing merchandise on the
special racks which were owned by the three suppliers of
spices. This latter represented a process fraught with some
complexity which the salesmen had mastered and which
the clerks avoided.
(b) Since the clerks had little or nothing to do with
such shelving, the salesmen became more intensely
identified with this work and the related functions. In this
connection I find that the nature of such identity was such
that to sever the shelving of the products from the services
of the salesmen, which Article 8(c) effected, rendered the
product less competitive because it required the peculiar
skills of the salesmen to rack it in the most appealing
symmetry. No different result is dictated because clerks
exclusively racked "Franks" spices at Hiller & Lutey's
supermarkets. This is because Hiller had but four stores
and its purchases of "Franks" spices were so
inconsequential that it was rendered unprofitable for the
"Franks" salesman to make periodic visits to these stores
to rack his merchandise.
Of course it is manifest, and I find, that Section 8(e) of
the Act has not been violated insofar as Article 8(c) has
been applied to spices, salts, seasonings, and meat
tenderizers not supplied by the three suppliers mentioned
in the complaint These three are Franks,
Thompson-Jackson, and McMahon & McDonald. Thus, I
find it lawful to apply the restraints of Article 8(c) to salt,
including "Morton's" and "Diamond" brands, Lawry's
and Accent seasonings, Adolph's seasonings and meat
tenderizer, private labels of spices of any Respondent
sellings its own brand, and spices of any other supplier
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than the three specified in paragraph 14(b) of Second
Amendment to Complaint (G.C. Exh. 2).
D As to Soft Drinks
Except for Canada Dry, each of the Charging Parties in
Case 7-CE-13 distributed its soft drinks through a
driver-salesman. When he called at a supermarket said
driver-salesman not only took orders but forthwith
thereafter delivered the merchandise to the store. Such
delivery was made by filling the store's shelves with the
bottled soft drinks of the supplier employing the
driver-salesman. In the case of Canada Dry, its salesman
first took an order after which a Canada Dry driver
delivered the products to the store. Later the Canada Dry
salesman returned to the market and filled the shelves
with Canada Dry products.
In addition to such shelf filling, the salesmen or
driver-salesmen also arranged, rotated, cleaned, and priced
their products on the shelves and often attached to the
merchandise or displayed in the store advertising material
Said advertising aids included carton stuffers, bottle
ringers, shelf talkers, and posters. After filling shelves any
excess stock was stored in the market's backroom.
Salesmen and driver-salesmen periodically called at the
markets to perform the above-described acts. On each of
these occasions they repeated the routine outlined above,
i.e., they filled shelves and performed the allied services
referred to above. Between calls of the salesmen and
driver-salesmen, the shelves were replenished by store
clerks from stock left in the backroom of the store if and
when the shelves became depleted. While said clerks did
not often so replenish during the week, they did so more
frequently on weekends when sales volume was materially
augmented.
Another task imposed by suppliers upon their salesmen
and driver-salesmen required them to remove empty soft
drink bottles which the consumer had returned to the
store for a refund of his deposit. Such empties, however,
were exclusively handed over to a clerk, who then paid the
customer. Following this the store's clerks exclusively
assembled the empties and stored them in the backroom
so that they could be taken away from there. No similar
practice was pursued as to so-called "throw-away" bottles
because the customer, not having made a deposit thereon,
was not entitled to a refund. Hence empty "throw-aways"
were discarded or retained by the customer but never
returned to the store
Salesmen and driver-salesmen also occasionally set up
and maintained special displays in selling areas of the
store other than the soft drink shelves. In general clerks
did not replenish these displays as they did not become
depleted between calls of the supplier's driver-salesman or
salesman.
On the other hand, canned soft drinks of the said
Charging Parties (supplied apparently only by Feigenson
and Canada Dry) were exclusively shelved by the store
clerks in the supermarkets. Likewise, clerks also
exclusively shelved all other brands of bottled soft drinks
than those of the Charging Parties in Case 7-CE-13,
including those sold under the trade name of
"Meadowdale," "Mavis," "Dad's Root Beer," "Tito,"
and "Staff."
The parties have stipulated, and I find, that store clerks
have at all times material exclusively shelved the following
products and exclusively performed functions related to
such shelving. frozen, bottled, and canned fruit juices and
fruit punches; powdered mixes or drinks; Kool-Aid;
Tangy; Tart and Tangy, Twist; coffee; tea; Sanka; cocoa,
beer and wine; and milk and dairy products.
Since August 2, 1967, the driver-salesmen and salesmen
of the Charging Parties in Case 7-CE-13 have not been
able to shelve the bottled soft drinks which they
customarily and regularly shelved for many years prior to
that date, nor have they been able to perform services
associated with such shelving. Respondent Employers have
continued to purchase bottled soft drinks since August 2,
1967, from said Charging Parties, but the functions of
shelving and services associated therewith have since that
date been performed by the store clerks of the
Supermarkets. It is admitted, and I find, that the
foregoing change, in the method of filling and servicing the
shelves has resulted because the Respondents have
enforced Article 8(c) of their collective-bargaining
agreement
To the extent that implementation of Article 8(c)
deprives the Charging Parties of a benefit enjoyed by
them prior to August 2, 1967, Respondents have thereby
transgressed Section 8(e) of the Act because they have
entered into a contract whereby the Respondent
Employers have agreed with Local 876 to cease doing
business with said Charging Parties in Case 7-CE-13. I
find such implementation does exist, and I further find
that it violates Section 8(e) for the reasons assigned above
in finding a violation in the application of Article 8(c) to
the shelving of cookies and crackers.
Respondent Local 876 insists that clerks replenished
shelves with a large percentage of the bottled soft drinks
of the Charging Parties involved. But I do not so find, as
I find that most of said bottles were placed on said shelves
by driver-salesmen and salesmen. In any event I find that
for several years prior to August 2, 1967, the original
filling of shelves -- as distinguished from replenishing -
in connection with an order taken by an employee of the
supplier was exclusively performed by a driver-salesman
or salesman of such supplier and not at all by a clerk of
the store. It is this act of original shelving with its
concomitant services which Section 8(e) of the Act
protects as a method of doing business. And I find that
such method is (a) substantial and (b) has been the way
the Charging Parties have done business with Respondent
Employers over an appreciable length of time.
Additionally, I find that this method of original shelving is
not "fairly claimable" as unit work by the store clerks,
that it has not been traditionally performed by the clerks,
and that it has been traditionally accomplished by
employees of the Charging Parties in Case 7-CE-13
Another cogent reason for finding that the original
shelving of the bottles and the accompanying services
constitute a single, integrated, self-contained, and
indivisible unit or package may be found in the fact,
which I find, that driver-salesmen and salesmen attach
advertising materials to the merchandise and shelves as
wet as put up and maintain special displays' of their
products. Respondent Local 876 minimizes this feature of
their work by its evidence, which I credit, that in some
supermarkets clerks were told by their supervisors not to
use such advertising aids left in the backroom along with
merchandise as a reserve to replenish the shelves. But I
expressly find that such instructions affected only such
replenishment of bottled soft drinks which the clerks
performed, and that salesmen and driver-salesmen
exclusively attached such advertising materials whenever
they originally filled the shelves following the taking of an
order.
As found in connection with cookies, crackers, baby
foods, and spices, no violation of Section 8(e) of the Act
RETAIL STORE EMPLOYEES , LOCAL 876
has been established in applying Article 8(c) to the
shelving and related services of other bottled soft drinks;
of any canned soft drinks; and of any other products, such
as wine, beer, cocoa, and dairy products, which are not
distributed to the markets by the Charging Parties in Case
7-CE-13. Some of these other products are
"Meadowdale," "Mavis," "Dad's Root Beer," "Tico,"
"Staff," "Kool-Aid," and those enumerated in the
stipulation set forth above. Similarly for coffee.
E. The Applicable Authoritative Adjudications
Section 8(e) was introducted into the Act by certain
amendments enacted by Public Law 86-257 in 1959. Prior
to that time contracts containing language substantially
similar to that in Article 8(c), often termed "hot cargo"
clauses, had been upheld as valid as long as the parties to
the contract voluntarily honored its terms. Local 1976,
Carpenters Union v. N.L.R.B., 357 U.S 93, 108. See (a
general description of the shelving or racking procedures
involved in the principal case may be found in Retail
Clerks Local 770, 125 NLRB 984, 986-987), 62 Michigan
Law Review 1176, 1177.
Since Section 8(e) was adopted the Supreme Court has
expressly declared as lawful clauses designed to protect or
preserve work traditionally, customarily, or fairly
claimable as, within the bargaining unit composed of
employees of the Employer signing the contract containing
such clause. This, according to the Court, describes a
primary dispute. National Woodwork Manufacturers
Association v. N.L.R.B., 386 U.S. 612, 17 L. ed. 2d 357;
Houston Contractors Association v. N.L.R.B., 386 U.S.
664. See 62 Michigan Law Review, 1176, 1187-88.
On the other hand, the Supreme Court in the above
cases declared that such clauses transgressed Section 8(e)
when they seek "secondary objectives." I am of the
opinion, and find, that as applied to the original shelving
performed by employees of Independent and the Charging
Parties in Case 7-CE-13, such application is secondary.
This result emerges from that the fact, which I find, that
the object of enforcing Article 8(e) "was to interfere with
the practice of the markets of buying from the distributors
on a delivered basis" and prevented the markets from
"permit[ting] employees of other employers to complete
their deliveries in the selling areas." Retail Clerks Local
770, 127 NLRB 1522, 1524, remanded 296 F 2d 368
(C.A.D.C.), decision on remand 145 NLRB 307, 311-312.
While the foregoing case was not decided under Section
8(e) of the Act, it nevertheless is controlling on what
constitutes a secondary objective in a dispute essentially
identical to that involved in the instant cases. Cf.
N L.R.B. v. New York Lithographers, 385 F.2d 551 (C.A.
3). Similar results were reached in Local 282, Teamsters,
139 NLRB 1077, 1087, and Local No. 26, Sheet Metal
Workers, 168 NLRB No. 118 (TXD), although those
cases did not involve shelving.
And in Retail Clerks Union, 155 NLRB 656, 659, it
was expressly adjudicated that such conduct is secondary.
Said the Board : "Expansion of an established bargaining
unit to include third persons doing business with the
contracting employers , cannot be condoned as
primary action . The Employers engaged in [supplying]
who are affected by Article [8(c)] could not, without their
assent , be included in Respondents' bargaining unit under
any standard which the Board recognizes in defining
appropriate units . . . . Nevertheless, the intent of Article
[8(c)], as evidenced [by its application to suppliers] is to
force the suppliers into that unit." This holding disposes,
447
in my opinion, of the contention of Local 876 that it is
re-acquiring work formerly performed by it Cf. Truck
Drivers Local No. 413 v N L.R.B , 334 F.2d 539
(C.A.D.C ). For I find that clerks never performed the
original shelving of these products, and that such original
shelving belongs in a unit of employees of the suppliers.
Retail Clerks, Local 770, 145 NLRB 307, 312. (I do not
consider, and so find, that the shelving of loose cookies
and crackers, which the clerks exclusively performed until
about 20 or 22 years ago, constitutes original shelving of
the type at issue in this case ) Hence it is apparent that
work which the clerks did not previously perform, and
which constituted an operation performed by employees of
the suppliers, cannot be obtained now under the guise of
re-acquiring or "recapturing" work once performed by
clerks. Meat Drivers Local 710 v. N.L.R B., 335 F 2d 709
(C.A.D.C.). Cf. N.L.R B. v. Milk Drivers' Union, Local
No. 753, [Korth-Trans. Co.], 392 F.2d 845 (C.A 7),
decided January 11, 1968; Retail Clerks, Local 770, 138
NLRB 244, 247-248. In effect, by enforcing Article 8(c) as
to original shelving the parties to said Article are
undertaking to regulate the labor policies of other
employers. This is forbidden by Section 8(e) of the Act.
Local Union No 26, Sheet Metal Workers, 168 NLRB
No. 118. Cf. Sheet Metal Workers, 170 NLRB No. 116.
This is so even when a cause seeking non-traditional work
"may be consecrated to the primary objective" of aiding
unit employees. 62 Michigan Law Review, 1176, 1189.
Further, it is not necessary that a complete cessation of
business dealings occur to find a violation. It is sufficient
that Article 8(c) causes the suppliers to alter their method
of delivering merchandise to the markets. Thus , Retail
Clerks, supra, also holds that Section 8(e) is violated even
though Article 8(c) as enforced involves a partial, rather
than total, cessation of business with the suppliers. 155
NLRB 656, 660-661. See also A. Duie Pyle, Inc. v
N.L.R B, 383 F.2d 772 (C.A. 3), cert. denied 390 U.S.
905; Retail Clerks Union, 138 NLRB 244.
Further, the Board has held that whether the salesmen
and driver-salesmen "are employees of the suppliers, the
stores, or both, we believe that this is the central issue of
the case . . . . [I]f they are employees of the suppliers"
Article 8(c) may not be applied to them, and such
enforcement of it violates Section 8(e) of the Act. Retail
Clerks Intl. Assn., Local 1288, 163 NLRB No. 112, enfd.
390 F.2d 858 (C.A.D.C ). As found above, these persons
are employed by the suppliers and not by the store.
Highway Truck Drivers, 159 NLRB 84, and Pipe Fitters
Local 120, 168 NLRB No. 138, are distinguishable. Cf.
Calhoun Drywall Company, 153 NLRB 1196, 1200.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Those activities of Respondents set forth in section IV,
above, found to amount to unfair labor practices,
occurring in connection with the operations of the
Respondent Employers described in section I, above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices prohibited by Section 8(e) of the
Act, it will be recommended that they cease and desist
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefrom and that they take specific affirmative action,
described below, designed to effectuate the policies of the
Act. Nevertheless, I expressly point out that (a) I so not
find that Article 8(c) of the collective-bargaining contract
per se contravenes Section 8(e) of the Act, so that only its
enforcement in the manner found to offend said Act has
been included in the cease and desist provisions of the
Recommended Order, and (b) to the extent that said
Article 8(c) preserves traditional, customary, or "fairly
claimable," work of retail or store clerks in the bargaining
unit, it may be lawfully enforced by the parties to the
collective-bargaining contract containing said Article 8(c).
The only affirmative action recommended consists of
posting an applicable notice as set forth in Appendix A or
B, supplying copies thereof to the Regional Director for
mailing to the Charging Parties, and notifying the
Regional Director of the steps taken to comply with the
Recommended Order.
On the record as unfolded at the hearing, I am unable
to find that the Respondents have demonstrated any
general hostility to the Act. Accordingly, I find that an
Order enjoining Respondents from enforcing Article 8(c),
or any other like agreement, in a manner proscribed by
Section 8(e) of the Act will provide adequate relief while
effectuating the policies of the Act, and that an Order
broader in scope is not warranted. See the Board's Order
in Sheet Metal Workers International Association Local
Nos. 99 and 150, AFL-CIO, 170 NLRB No. 116
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Retail Store Employees, Local Union
No. 876, Retail Clerks International Association,
AFL-CIO, and Local No. 337, a Charging Party, each is
a labor organization within the meaning of Section 2(5) of
the Act.
2. Respondent Employers, and the Charging Parties in
Case 7-CE-13, each is an employer within the meaning of
Section 2(2), and each is engaged in commerce within the
meaning of Section 2(6) and (7), of the Act.
3. By their conduct in enforcing Article 8(c) in the
manner set forth above, Respondents have entered into a
contract or agreement whereby Respondent Employers
have agreed to cease doing business with Independent
Biscuit Company, S & M Biscuit Distributing Company,
Swanson's Cookie Company, Hekman Biscuit Company,
National Biscuit Company, Sunshine Biscuit Company,
Thompson-Jackson Associates, McMahon & McDonald,
Inc., Frank Tea and Spice Company, Beech-Nut Life
Savers, Inc., H. J. Heinz Company, Gerber Products
Company, and the Charging Parties in Case 7-CE-13.
Thereby Respondents have engaged in unfair labor
practices within the meaning of Section 8(e) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended order omitted from publication ]