Teamsters Local 812 (Canada Dry Distributors)

National Labor Relations Board - Board Decisions

Mar 29, 1991

302 N.L.R.B. 258 (N.L.R.B. 1991)

258
302 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent alleges that the judge displayed bias both at the hearing
and in his decision. We have scrutinized both the transcript of the hearing and
the judge’s decision, and we find no evidence of bias on the part of the judge.
We correct several inconsequential errors in the judge’s decision: (1) The
correct citation to News Syndicate Co. in part I of the decision is 164 NLRB
422 (1967). (2) The judge misstated the record when he observed in part II,
par. 5 that the Respondent’s business agent ‘‘DiDio was unclear whether there
is any geographical limitation to Local 812’s appetite[.]’’ Although DiDio did
not specify the limits to the Respondent’s jurisdiction, he did generally indi-
cate that it included New York City, Long Island, upstate New York toward
(but not including) Albany, and part of New Jersey. (3) The General Executive
Board of the Teamsters International Union did not, at least in those terms,
‘‘refuse[] to permit the transfer’’ of the New Jersey distributors from the Re-
spondent to Local 125, as the judge stated in part II, par. 12. Instead, it stated
that it was ‘‘awarding jurisdiction’’ over the distributors to the Respondent.
(4) DiDio did not testify that the New Jersey distributors were not a party to
the agreement reached between the Respondent and the New York distributors,
as the judge indicated in part II, par. 28. DiDio’s testimony was that the Re-
spondent’s executive board discussed the fact that the New Jersey distributors
were not going to comply with that agreement. (5) The judge inadvertently ne-
glected to insert ‘‘not’’ between ‘‘should’’ and ‘‘distinguish’’ on the first line
of par. 10 of the section entitled ‘‘Additional Conclusions and Discussion.’’
None of these errors affects our decision.
Finally, we do not rely on the judge’s finding that some of the New Jersey
distributors did not belong to the Canada Dry Distributors Association, Inc.
because the record contains evidence to the contrary that the judge did not
address.
2 The judge inadvertently omitted the word ‘‘transport’’ from the cease-and-
desist portion of his recommended Order and notice. We shall amend both the
Order and the notice to supply the omitted language.
3 Because we affirm the judge’s finding of a violation on this basis, we need
not address the possibility that the Respondent also violated the Act by forcing
some distributors to join the Association. As we have noted, the record does
not clearly establish that there were distributors who did not belong to the As-
sociation.
Local 812, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO (Canada Dry Distributors
Association of New Jersey) and Local 125,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Case 22–CC–1077
March 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On August 8, 1990, Administrative Law Judge
Edwin H. Bennett issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
conditional request to reopen the hearing for further
testimony. The General Counsel filed an opposition to
the Respondent’s request to reopen the hearing.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified.2
1. We agree with the judge that the Respondent vio-
lated Section 8(b)(4)(i) and (ii)(A) by forcing the New
Jersey distributors to bargain through the Canada Dry
Distributors Association, Inc., even though they be-
longed to that organization for other purposes. The Re-
spondent asserted that it picketed the distributors be-
cause they were refusing to sign a collective-bargain-
ing agreement that, in the Respondent’s view, had
been negotiated on their behalf by the Association. Ob-
viously, under the Respondent’s theory, that contract
could not have bound any distributor who had not
agreed to be represented by the Association. As the
judge found, the record does not support the Respond-
ent’s contention that the New Jersey distributors ever
assented to such representation by the Association.
Therefore, by picketing to force the New Jersey dis-
tributors to accept that agreement, the Respondent was,
in effect, requiring them to bargain as a group rather
than individually, and in so doing violated Section
8(b)(4)(A). See Frito-Lay, Inc. v. Teamsters Local 137,
623 F.2d 1354 (9th Cir. 1980), cert. denied 449 U.S.
1013 (1980), 449 U.S. 1112 (1981).3
The judge also found that the Respondent had vio-
lated Section 8(b)(4)(i) and (ii)(A) by forcing the New
Jersey distributors to remain members of the Respond-
ent. In reaching that result, the judge found that, al-
though the literal language of Section 8(b)(4)(A) for-
bids only forcing employers and self-employed indi-
viduals to join labor organizations, that language must
be read broadly as prohibiting actions aimed at forcing
such individuals to remain members of labor organiza-
tions. In affirming the judge’s finding, we agree with
him that the Act’s language should be construed broad-
ly when necessary to give effect to its spirit. See, e.g.,
Painters Orange Belt District Council 48 (Maloney
Specialties), 276 NLRB 1372, 1385 (1985) (8(e) prohi-
bition against ‘‘entering into’’ hot-cargo agreements
encompasses maintaining, enforcing, and reaffirming,
as well as initially executing, such agreements).
As the judge points out, the purpose of the relevant
portion of Section 8(b)(4)(A) is to assure that employ-
ers and self-employed persons are free to refrain from
belonging to a labor organization. Where, as here, such
an employer or person wishes to terminate membership
in the labor organization, and he/she is picketed to pre-
vent that termination, such picketing falls clearly with-
in the intended proscription of Section 8(b)(4)(A).
2. The Respondent requests that, should the com-
plaint not be dismissed, the Board reopen the hearing
and allow the Respondent to present evidence on sev-
eral matters. We find no merit to the Respondent’s re-
quest.
The Respondent first seeks to show that the New
Jersey distributors, who are the subject of this proceed-
259TEAMSTERS LOCAL 812 (CANADA DRY DISTRIBUTORS)
4 Contrary to the Respondent, we find that this theory was fully and fairly
litigated.
ing, have belonged to the Respondent at all relevant
times. However, it was stipulated at the hearing, and
found by the judge, that the distributors were members
of the Respondent. More important, the judge found
that the Respondent had violated Section 8(b)(4)(i) and
(ii)(A) by forcing the distributors to remain members
of the Respondent.4 It thus would serve no purpose for
the Respondent to prove—as all parties have implicitly
recognized—that the distributors have always belonged
to the Respondent. (For the same reason, there is no
merit to the Respondent’s request to show that it did
not force the distributors to join it.)
The Respondent next seeks to demonstrate that the
distributors ‘‘desire’’ the Respondent to represent them
in their dealings with Canada Dry Bottling Co. That
fact, if it be such, is irrelevant. Of relevance to this
case are not the distributors’ current ‘‘desires,’’ but
their wishes in February and March 1989, when they
attempted to transfer their membership from the Re-
spondent to Teamsters Local 125 (and were picketed
by the Respondent as a result).
The Respondent also seeks to prove that the Canada
Dry Distributors’ Association, Inc. was, at all relevant
times, a multiemployer bargaining unit, and that the
Respondent did not force the distributors to join the
Association or any other employer association for the
purposes of collective bargaining. We find no merit to
this request, nor to the Respondent’s allegation in its
exceptions that it was denied due process of law when
the judge allowed the General Counsel to amend the
complaint at the hearing to allege that the distributors
were forced to join the Association for collective-bar-
gaining purposes. The amendment was made at the
hearing session held on February 23, 1990, nearly 2
weeks before the Respondent’s counsel began his case-
in-chief, on March 6. The judge provided that the Re-
spondent could recall the only witness who had already
testified, if that were necessary to meet the issues
raised by the General Counsel’s amendment, yet the
Respondent did not recall the witness. Multiemployer
bargaining is consensual in nature–-it cannot be im-
posed on either an employer or a union without its
knowledge. Thus, if the distributors actually had been
members of a multiemployer unit that had a bargaining
relationship with the Respondent, the Respondent
should have been able to produce credible evidence to
that effect. That it was unable to do so indicates mere-
ly that no such bargaining relationship existed. The
Respondent was not denied due process, and will not
be allowed to adduce further evidence on this subject.
Finally, the Respondent seeks to introduce unspec-
ified evidence that, it asserts, was acquired after the
close of the hearing. Section 102.48 of the Board’s
Rules and Regulations requires that a party moving to
reopen the record state the nature of the evidence it
seeks to introduce and that, if adduced and credited,
the evidence would require a different result. The Re-
spondent’s request meets neither of these criteria. Ac-
cordingly, and for the reasons set forth above, the Re-
spondent’s request to reopen the hearing is denied.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Local 812,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, its
officers, agents, and representatives, shall take the ac-
tion set forth in the Order as modified.
1. Insert ‘‘transport,’’ between ‘‘to’’ and ‘‘handle’’
in paragraph 1(a).
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT picket or in any other manner or by
any other means engage in, or induce or encourage any
individual employed by Canada Dry Bottling of New
York, or any other person in commerce or in an indus-
try affecting commerce within the meaning of the Act,
to engage in a strike or refusal in the course of his em-
ployment to transport, handle, or work on any goods,
articles, materials, or commodities or to perform any
services; or threaten, coerce, or restrain Canada Dry
Bottling of New York, the members of the Canada Dry
Distributors Association of New Jersey, or any other
person engaged in commerce or in an industry affect-
ing commerce, where in either case an object thereof
is to force or require the members of the Canada Dry
Distributors Association of New Jersey or any other
employer or self-employed person to join or remain a
member of Local 812, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, or of the Canada Dry Distributors
Association, Inc. for purposes of collective bargaining,
or of any other employer organization.
WE WILL NOT apply, maintain in force, or give ef-
fect to the collective-bargaining agreements and
amendments and additions thereto entered into with the
Canada Dry Distributors Association of New Jersey
and its constituent members effective by its terms for
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the period June 1, 1987, through May 31, 1991, or to
any modification, extension, supplement, or renewal of
those agreements.
WE WILL reimburse all membership dues and fees
with interest collected from the self-employed mem-
bers of the Canada Dry Distributors Association of
New Jersey subsequent to our unlawful picketing of
them which commenced February 9, 1989.
WE WILL notify, in writing, the Canada Dry Dis-
tributors Association of New Jersey and each of its
constituent members, that the collective-bargaining
agreements and additions and amendments thereto en-
tered into for the period June 1, 1987, through May
31, 1991, are null and void.
WE WILL NOT enforce or give effect to the agree-
ments or to any modification, extension, supplement,
or renewal thereof.
LOCAL 812, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA, AFL–CIO
Bernard Mintz, Esq., for the General Counsel.
Sidney Fox, Esq., for the Respondent.
Sanford R. Oxfeld, Esq. (Balk, Oxfeld, Mandell & Cohen),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
EDWIN H. BENNETT, Administrative Law Judge. Several
days of hearing, which closed on March 6, 1990, were con-
ducted in this case on a complaint which had issued on
March 17, 1989, alleging that Local 812, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL–CIO (Respondent or Local 812), vio-
lated Section 8(b)(i) and (ii)(A) of the Act by picketing cer-
tain New Jersey distributors of Canada Dry beverages in
order to require their membership both in Respondent and in
any employer association for collective-bargaining purposes.
The complaint was based on a charge filed on February 16,
1989, by Local 125, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO (Local 125) alleging violations of Section 8(b)(4)(A)
and (B) and Section 8(e). Only the 8(b)(4)(A) allegation
found its way into the complaint, and a related 8(b)(4)(A)
charge by the Canada Dry Distributors Association of New
Jersey was withdrawn at the hearing. Apart from whether or
not the admitted picketing was for objects prohibited by the
Act, further issues are whether or not these New Jersey dis-
tributors are self-employers and persons within the meaning
of Section 8(b)(4)(A) of the Act and engaged in commerce
subject to the Board’s jurisdiction, allegations denied by Re-
spondent in its answer.
At the hearing, Respondent alternatively asserted that a
distributor is an employee of his own wholly owned corpora-
tion, an employee of both his corporation and Canada Dry
or, if doing business as a sole proprietor rather than in the
corporate style, an employee of Canada Dry alone. Testi-
mony of Respondent’s official, as described below, also
equivocated on these issues. Accordingly, this decision will
deal with the evidence relating to the complaint allegations
noted as if they continue to be denied by Respondent despite
a disingenuous ‘‘concession’’ in Respondent’s brief that ‘‘for
the purposes of this case, [it] will concede that the distribu-
tors herein may be deemed to be self-employed persons pur-
suant to some of the decisions of the NLRB.’’
On the entire record, including my observation of the wit-
nesses, and after due consideration of Respondent’s brief and
legal arguments made by the General Counsel and the Charg-
ing Party on the record, I make the following
FINDINGS OF FACT
I. JURISDICTION
There are two separate employers, or groups of employers,
involved in this case. The first of these is Canada Dry Bot-
tling of New York (Canada Dry) a manufacturer and dis-
tributor at wholesale of bottled soft drinks with places of
business in the States of New York and New Jersey. Annu-
ally, Canada Dry admittedly purchases and receives at its
New Jersey facilities products, goods, and materials valued
in excess of $50,000 transported directly from outside the
State of New Jersey. It is further admitted by Respondent,
and I find, that Canada Dry is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and a person engaged in commerce within the meaning
of Section 8(b)(4) of the Act.
The employers whose status as persons engaged in com-
merce within the meaning of Section 2(2), (6), and (7) and
Section 8(b)(4)(A) of the Act is disputed are 43 New Jersey
based wholesale distributors of Canada Dry beverages (listed
by name in the complaint) who receive their product from
Canada Dry at a distribution point located either in Carteret,
Hackensack, or Whippany, New Jersey. It should be noted,
there are perhaps an additional 100 or more distributors in
New York City and several surrounding counties who while
not directly at issue in the case will nevertheless be referred
to because of possible connection to the New Jersey group.
An individual seeking to sell Canada Dry beverages (soda
and beer in New York, only soda in New Jersey) purchases
a distributorship usually directly from Canada Dry, although
it is possible to purchase an existing route from a distributor
with Canada Dry approval. A distributorship essentially has
the exclusive right to sell Canada Dry products within a de-
fined territory or route. The relationship between Canada Dry
and the distributor, and the terms of the operation of that dis-
tributorship, primarily are governed by a standard form dis-
tributor’s agreement entered into by both parties at the time
of purchase which requires, inter alia, that the distributor op-
erate as a corporation of which he is to be the sole stock-
holder. In exchange for a license fee he is awarded a speci-
fied territory in which he has exclusive rights to develop as
many retail outlets as possible except for certain customers
with particular needs reserved for Canada Dry. The distribu-
tor is required to service a customer at least once a week,
cover his territory 5 days a week, and to wear a Canada Dry
furnished uniform. The distributor’s sales records are the
property of Canada Dry and must be maintained at the Can-
ada Dry premises. The relationship can be terminated by ei-
ther party subject to notice provisions in the agreement, and
261TEAMSTERS LOCAL 812 (CANADA DRY DISTRIBUTORS)
1 The credited and undenied testimony of Allan M. Stern, attorney for the
distributors, and Eugene Kelly, a New Jersey distributor, describe the distribu-
tors’ operations.
2 See, e.g., Teamsters Local 221 (AGC) v. NLRB, 290 NLRB 522 (1988),
enfd. 899 F.2d 1238 (D.C. Cir. 1990). Independent contractor status found de-
spite jobsite supervision of construction truckdrivers and requirements that
they carry specific insurance on trucks and follow established procedures simi-
Continued
in Canada Dry’s case, for 10 specified reasons and a repur-
chase of the territory at a fair market value. The agreement
further recites that the distributor is an independent contrac-
tor and that neither the distributor nor his employees are em-
ployees of Canada Dry.
By custom and practice as well as the agreement,1 a dis-
tributor has discretion to hire employees, to assist, and to
substitute for the distributor while on vacation and the dis-
tributor alone is held responsible for those employees’
wages, appropriate insurance coverage such as workmen’s
compensation and unemployment, and all terms of employ-
ment, e.g., firing, discipline, hours, etc. The New Jersey
based distributors rarely, if ever, employ anyone and then
only on a casual, sporadic or seasonal basis. Many New
York distributors on the other hand regularly employ a helper
because they, unlike their New Jersey counterparts, are per-
mitted by law to also sell beer distributed by Canada Dry but
they must use a separate truck for this purpose. In any case,
Louie DiDio, business agent and recording secretary of Local
812, conceded that to the extent a distributor has employees
Respondent considers them to be employees of the distribu-
tor’s corporation and not of Canada Dry. In fact, in DiDio’s
view, the distributor also is an employee of his own corpora-
tion for certain purposes described below.
A distributor also must lease a truck and pay all the oper-
ating expenses, including normal maintenance, liability insur-
ance, and taxes, although Canada Dry has a right to approve
the lessor and truck style. The distributor regulates his hours
of work, as well as those of any employees, including start-
ing and finishing time and customer service time, subject
only to the limitation imposed by virtue of Canada Dry’s
hours of operation at the terminal from which the distributor
obtains the product. A distributor can extend his own credit
to a customer and there is no evidence that Canada Dry di-
rects, controls, supervises, or in any manner is involved in
the day-to-day performance of a distributor’s work in selling
the Canada Dry product, the servicing of the distributor’s ac-
counts and the development of new customers. A distribu-
tor’s income is derived from the commission (at present 15
percent) he receives on all sales. Control over fixed ex-
penses, acquisition of new customers, and increasing sales to
existing accounts by the distributor, are many of the factors
that determine the profitability of his business.
Canada Dry ships its product from College Point, New
York City, directly to its three New Jersey locations where
the New Jersey distributors receive and purchase the mer-
chandise at an average price of $9 a case. Each of these dis-
tributors purchases, on average, from 50,000 to 75,000 cases
a year. Thus, at a minimum, each distributor purchases
$450,000 worth of merchandise shipped to it directly in
interstate commerce. The distributors, in turn, sell to their
customers at $9 a case, retaining as noted, a 15-percent com-
mission. Accounts are settled with Canada Dry on a daily
basis. The record does not disclose why the purchase and re-
sale prices are the same or to what extent a distributor can
determine the latter price, although the distributor’s agree-
ment does state that Canada Dry may suggest the resale
price. A determination of independent contractor status in
cases similar to this one is a recurring question which the
Board decides under the analytical approach reiterated in
DIC Animation City, 295 NLRB 989, 990 (1989).
Section 2(3) of the Act excludes ‘‘any individual
having the status of an independent contractor’’ from
the definition of employee. The Supreme Court in
NLRB v. United Insurance Co., 390 U.S. 254, 258
(1968), relied on the legislative history of the 1947
amendment to Section 2(3), and concluded that inde-
pendent contractor status is to be determined by assess-
ing ‘‘the total factual context . . . in light of the perti-
nent common law agency principles.’’ Among such
principles is the ‘‘right to control’’ test, which the
Board described in News Syndicate Co., 264 NLRB
422, 423–424 (1967):
Where the one for whom the services are performed
retains the right to control the manner and means by
which the result is to be accomplished, the relation-
ship is one of employment; while, on the other hand,
where control is reserved only as to the result
sought, the relationship is that of an independent
contractor. The resolution of this question depends
on the facts of each case, and no one factor is deter-
minative.
A finding that the New Jersey distributors are self-em-
ployed independent contractors is supported by an over-
whelming number of factors. They operate in the corporate
style requiring effort and financial outlay to do so, they lease
their own trucks and bear the entire cost incidental to their
ownership, maintenance, and replacement, they determine
their hours of work, and they can employ helpers whose su-
pervision, wages, and cost of required insurance is entirely
their responsibility. They are not paid wages but rather their
renumeration depends solely on profit from commissions
subject to the cost of operation. They can develop a territory
and increase sales by their own devices without any signifi-
cant interference or oversight by Canada Dry.
They do not have any of the traditional indicia of em-
ployee status, e.g., they are not hired, supervised, paid a
wage, or work hours assigned by Canada Dry, and signifi-
cantly, both Respondent and Canada Dry do not consider
them to be employees, and indeed treat them as independent
owners.
To the extent that Canada Dry exercises control over or
influences their operations, for example by requiring a cer-
tain style truck, uniforms, advertising logo, examination of
sales records, and by retaining the right to sever the relation-
ship for certain specified causes (basically for failing to serv-
ice customers or pay for merchandise) it reflects a contrac-
tual relationship generally inherent in business arrangements
necessitated by the objective sought, i.e., the sale of Canada
Dry products. This represents a classic example of retention
over the right to control the result of the task and not its
every day performance.
In accordance with well-established precedent,2 I find the
43 New Jersey distributors named in the complaint to be
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lar to company drivers because of their freedom to reject particular jobs and
entrepreneurial risk incident to ownership of their trucks. See also Operating
Engineers Local 701 (Lease Co.), 276 NLRB 597 (1985), where as here, the
owner-operators of trucks could hire their own employees, determine their
hours of operation, maintain their own equipment, and were not paid on a
wage rate basis. Similarly, although the jobs involved are quite different, the
contractor left the details of the job performance to the owner-operators and
was predominantly concerned only with the final result, a conclusion equally
applicable to Canada Dry in the instant case.
self-employed persons engaged in commerce within the
meaning of Section 8(b)(4)(A) of the Act and engaged in the
wholesale distribution of Canada Dry soft drink products
throughout the State of New Jersey. Inasmuch as each dis-
tributor also annually purchases and receives in New Jersey
in excess of $50,000 worth of said products shipped directly
from outside the State, I also find that each distributor is a
person and employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and subject to
the Board’s jurisdiction.
II. THE UNFAIR LABOR PRACTICES
A. The Distributors’ Associations
In about October 1987 a group of distributors working
both in New Jersey and in the New York City area and sur-
rounding counties requested Attorney Stern to form a trade
association that could purchase a group insurance policy to
cover their vehicles. Stern testified credibly and without con-
tradiction that he formed such association which was incor-
porated in New York State in December 1987. The certifi-
cate of incorporation identifies the association as the Canada
Dry Distributors Association, Inc. (N.Y. Association), a non-
profit organization, whose purpose, described in a general-
ized fashion in the certificate of incorporation, is to advance
the business interests of its members by promoting efficient
and economical beverage distribution. Stern explained that
the primary purpose and raison d’etre of the Association is
to purchase group auto liability insurance policy providing
such coverage for its individual members. There is no re-
quirement imposed by Canada Dry, or anyone else, that a
distributor be a member and only those distributors desiring
the group insurance have joined. The record is unclear as to
the total membership but according to Stern not all the 43
New Jersey distributors have joined. Further it also appears
that some of the New York distributors also have not joined,
and as best as can be ascertained from the record, total mem-
bership lies somewhere between about 100 and 125.
The Association also exists to deal, on behalf of its mem-
bers, with Canada Dry concerning business problems of mu-
tual interest. However, because the New York distributors,
unlike their counterparts in New Jersey, operate two trucks
and deliver beer, the former group has many separate inter-
ests and problems requiring resolution that have no relevance
to the New Jersey group. Perhaps for that reason another as-
sociation was organized consisting exclusively of all 43 New
Jersey distributors which they called the Canada Dry Dis-
tributors Association of New Jersey (N. J. Association). In
about February 1988 Stern was retained as counsel to that
group and from his testimony, and that of Kelly, a New Jer-
sey Canada Dry distributor since 1986 and a member of both
Associations, the purpose of the N. J. Association was to
provide a forum for the distributors to discuss problems and
events pertaining to their trade and business operations. The
group has no formal structure or written rules and is not an
incorporated association.
The record is quite clear that neither Association is a suc-
cessor to any other association of distributors, despite the
bare unsupported assertion by Respondent to the contrary.
Furthermore, the record does not establish that membership
in either Association entails an obligation on the part of indi-
vidual members to be bound in collective bargaining by
group action. At most, as discussed more fully below, the
Associations were utilized by its members as a convenience
for dealing with Local 812 and Local 125. And, although
Local 812 sought to impose a collective-bargaining agree-
ment on individual members through the vehicle of associa-
tion bargaining, a matter also dealt with in greater detail
below, there is no persuasive evidence that, by agreement or
practice, individual members demonstrated an unequivocal
intention to be bound by group or multiemployer action in
collective bargaining. In fact, the evidence is all to the con-
trary. Absent such finding of intent, neither Association con-
stitutes a true multiemployer bargaining unit as that term is
applied by the Board, Council of Bagel & Bialy Bakeries,
175 NLRB 902 (1969) (cited with approval at 434 F.2d 887
(2d Cir. 1970), a significant circumstance for jurisdictional
purposes and in assessing the conduct of Local 812 in this
case. Accordingly, each distributor constitutes a separate em-
ployer for purposes of collective bargaining.
B. Local 812’s Industrywide Relationship with
Distributors
Local 812 has a collective-bargaining agreement with Can-
ada Dry covering at least the drivers and helpers employed
directly by Canada Dry to transport its product to retail out-
lets and to the New Jersey distribution points from the bot-
tling plant in College Point (Queens), New York. It is not
clear when that relationship began but it appears from
DiDio’s evidence that it has existed since the early 1980s.
In addition, for a concurrent period of time, Local 812 has
campaigned for collective-bargaining agreements and mem-
bership from about 750 different distributors working for the
various soft drink bottlers in the industry, e.g., Canada Dry,
Pepsi-Cola, Coca Cola, and 7-Up, within New York and
New Jersey. DiDio was unclear whether there is any geo-
graphical limitation to Local 812’s appetite but it does ap-
pear that New York City and many surrounding counties in
both States are within Local 812’s area of concern. DiDio
was quite clear however, that it is Local 812’s objective to
obtain contracts from distributors not only to cover their em-
ployees, if any, but so that certain provisions of the agree-
ment could be applied to the self-employed corporate owners
if they perform any manual labor which they all do. Accord-
ing to DiDio, in order to protect Local 812’s standards, it re-
quires application of the pension and retirement provisions as
well as the union-security provision to the owner/distributor
even if there are no other employees of the corporation.
It is quite evident, however, that Local 812 has been
somewhat lax over the years in securing written agreements
from all the distributors but there is no doubt that with or
without an up-to-date contract, Local 812 has been successful
in at least having distributors maintain membership in Local
812. In fact, until the 1989 contracts involved in this pro-
ceeding, there is no evidence that any of the New Jersey dis-
tributors had ever signed a contract with Local 812, a condi-
263TEAMSTERS LOCAL 812 (CANADA DRY DISTRIBUTORS)
3 The General Counsel subpoenaed such collective-bargaining agreements at
the hearing. After much equivocating and obfuscation by Respondent it finally
was concluded that none of the 43 distributors in this case ever had a contract
with Respondent either individually or as part of any association. Counsel’s
assertion that these distributors belonged to an association referred to as Alpha
Beverage distributors and that Alpha in turn was party to a contract with Local
812 which bound these distributors, simply was not supported by any pro-
bative evidence.
tion applicable as well to the entire membership of the N.Y.
Association. Local 812 is ably assisted by Canada Dry in as-
suring that distributors secure and retain union membership
by requiring that prospective distributors, as a condition of
acquiring a route, execute a document attesting to the exist-
ence of a collective-bargaining agreement with Local 812
and authorizing Canada Dry to collect from the distributor on
a daily basis, moneys to cover pension, welfare, and Local
812 dues obligated under that agreement, and to transmit
such moneys to Local 812 monthly. Since distributors also
settle accounts with Canada Dry on a daily basis, the moneys
in effect are deducted from a distributor’s commission. Ac-
cording to Stern, who has represented many distributors at
their closings with Canada Dry, this is a standard practice
and essentially entails an acknowledgment by Canada Dry
that the prospective distributor has been ‘‘cleared’’ by Local
812.
In view of the fact that there is scant evidence of actual
past collective-bargaining agreements with distributors (cer-
tainly none with the more than 100 distributors in the N.Y.
Association), and the fact that many distributors do not have
employees who might be covered by such agreements (cer-
tainly true for all the 43 New Jersey distributors) and the fact
that such agreements are meaningful only because Local 812
insists that a distributor is an employee of his own wholly
owned corporation, it is inescapable that Local 812’s prac-
tice, goal, and policy, for almost a 10-year period, has been
to unionize the owners of the distributorships in the soft
drink industry, an objective in which Canada Dry has been
instrumental in helping to achieve.
C. The Union Membership of the New Jersey
Distributors
It is conceded that all the New Jersey distributors had ac-
quired membership in Local 812 for substantial periods of
time prior to the events of this case. Some distributors be-
came members by transferring from another Teamsters’
Local in about 1980–1981 under circumstances not entirely
clear, while others became members simultaneously with ac-
quiring a distributorship under circumstances and in the fash-
ion, all too clear, previously described.
Nevertheless, in about July 1988 all the New Jersey dis-
tributors embarked on a course of action designed to free
themselves from Respondent’s membership hold and to
transfer their allegiance to Local 125, a New Jersey Team-
sters union, a journey leading to the heart of this case. Stern,
as counsel to the N. J. Association, was requested to arrange
for membership in that union for the Association members.
Eventually, a meeting was held on January 4, 1989, at Local
125’s office in Totowa, New Jersey, attended by Stern, the
president and vice president of Local 125, Charles Giordano,
and Richard Rabin, respectively, and five distributors who
were directors of the N. J. Association including its presi-
dent, Steven O’Donnel. The participants discussed Local
125’s health and pension programs and the desire of the dis-
tributors to join Local 125 in order to obtain those benefits.
A second meeting was held on February 6, 1989, with the
same persons present augmented by about an additional 10
distributors so that 4 or 5 distributors from each of the three
Canada Dry locations in New Jersey were present. A collec-
tive-bargaining agreement with Local 125 was executed by
all the distributors present each of whom also agreed to re-
turn to their respective plants and obtain the signatures of the
remaining distributors, which, in fact, was done. By these
agreements, the N. J. Association, and its subscribing mem-
bers, recognized Local 125 as the representative of all em-
ployees, including drivers and helpers, of each subscribing
member. The agreement (a brief two pages) contains, inter
alia, provisions for union-security and medical benefits and
is for the period February 6, 1989, to February 6, 1992.
Concurrent with these negotiations, the New Jersey dis-
tributors also were proceeding to effect a transfer of their
membership from Local 812 to Local 125. In the fall of
1988, Giordano, having been informed by the distributors of
their desires, met with Anthony Rumore, Local 812 presi-
dent. According to Giordano’s credited and unrefuted testi-
mony, he told Rumore the distributors wanted to transfer into
Local 125 but that Local 125 would refuse their application
if they had collective-bargaining agreements with Local 812.
Rumore said he had no knowledge of any such agreements
and told Giordano that if in fact none existed and the dis-
tributors signed a petition requesting a transfer of member-
ship, Respondent would ‘‘turn them over’’ to Local 125.
Giordano communicated the result of his meeting to the
distributors who, on December 5, 1988, signed a petition re-
questing transfer of membership from Local 812 to Local
125. Three separate petitions were prepared and returned to
Giordano, one containing 11 signatures of the distributors
using the Whippany, New Jersey distribution warehouse of
Canada Dry, one containing 26 signatures for those using the
Hackensack, New Jersey warehouse and, a third containing
6 signatures of those using the Carteret, New Jersey ware-
house. Shortly thereafter (about Christmas time) Giordano
gave the petition to Respondent and on several occasions re-
quested the production of any existing collective-bargaining
agreements. Of course, such agreements did not exist and
consequently were never produced.3 Nevertheless, Respond-
ent reneged on its agreement with Local 125, and resisted the
transfer of membership, and brought the matter before the
general executive board of the International Brotherhood of
Teamsters which, in October 1989, refused to permit the
transfer and supported Respondent’s insistence that the dis-
tributors remain members of Local 812.
D. Respondent’s Picketing and the Events Giving Rise
to Such Conduct
It is not by coincidence that, at about the same time the
distributors were seeking to escape from Local 812 member-
ship, Local 812 commenced a drive to secure from them col-
lective-bargaining agreements. DiDio testified that in May
1987 he had met with four Canada Dry distributors who he
asserted were members of the Canada Dry Distributors Asso-
ciation, Inc., for purposes of negotiating a collective-bargain-
ing agreement. According to DiDio they agreed to abide by
whatever agreement Local 812 reached with a distributors as-
sociation handling Pepsi-Cola products. Further, according to
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DiDio, although such agreement was reached in early June
1987 the press of other union business prevented him from
preparing any written contract for Canada Dry distributors
until late July at which time he secured a signed brief stipu-
lation from eight distributors who worked at a Newburgh,
New York distribution warehouse adopting certain rates of
commissions for route salesmen, pension contributions, and
rates of pay for helpers from 1987 through 1990. It does not
appear that any of these eight are members of either Associa-
tion.
DiDio also prepared similar stipulations for the New York
City and New Jersey distributors, gave them to a Mt. Ver-
non, New York distributor named Mike Variello, otherwise
unidentified, who promised to, but did not, obtain the signa-
tures of all the New York and New Jersey distributors, a
group we know that exceeds 100 in number.
Certain parts of DiDio’s foregoing testimony are very dif-
ficult to accept. Initially, I reject his assertion that in May
1987 he had any sort of agreement with the Canada Dry Dis-
tributors Association, Inc. inasmuch as that organization was
not formed or incorporated until the fall of 1987. Apart from
Stern’s testimony to this effect, Respondent’s own exhibit es-
tablished the filing of the certificate of incorporation on Sep-
tember 15, 1987. Furthermore, it is of no legal significance
that a member of the Association, even assuming its exist-
ence, purportedly entered into such agreement in light of my
earlier finding that the Association is not a true multiem-
ployer unit and the complete absence of any evidence even
suggesting that the member was authorized to speak for any-
one but himself.
All that remains then is that throughout 1987 Respondent
harbored a vague notion that somehow or other Canada Dry
distributors, other than the eight in Newburgh, New York,
were obligated pursuant to some sort of written contractual
understanding. To be sure, as noted above, there was no
practical need to have an agreement with those distributors
who had no employees which, at a minimum, included all 43
New Jersey distributors. It seems a fair inference that so long
as the dues and other payments made on behalf of the cor-
porate owners continued to flow, a fact guaranteed by Can-
ada Dry’s role as a collection agent for such purposes, Re-
spondent had no cause for alarm.
Again, through most of 1988, Respondent made absolutely
no attempt to obtain written collective-bargaining agreements
from any member-employer of the N.Y. Association, and
more particularly the New Jersey distributors involved in this
case. And, Local 812 ignored the absence of such agreements
despite its efforts, according to DiDio’s testimony, to enforce
the ‘‘contract’’ (particularly the union-security requirement)
by his visiting various Canada Dry warehouses including one
in New Jersey. For example, DiDio testified he told the ‘‘en-
tire distributor Association we were going to enforce the
contract’’ and in May or June 1988 he visited the Whippany,
New Jersey location and attempted, unsuccessfully, to recruit
a helper into membership.
It was not until December 1988 that Respondent exerted
itself regarding the matter of collective-bargaining agree-
ments with the distributors in the N.Y. Association, more
than 1-1/2 years following the purported reaching of an
agreement, but immediately on the heels of the attempt by
the New Jersey distributors to transfer membership to Local
125. According to Stern, members of the N.Y. Association
informed him of demands by Local 812 for an increase in
pension contributions. Stern, believing that the predicate for
such demand is a collective-bargaining agreement authorizing
such payment wrote to Respondent and its attorney on De-
cember 19, 1988, and again on January 5, 1989, requesting
copies of such contracts. In the second letter, Stern provided
the names of 66 distributors who conduct business only in
New York. On December 28, in reply to the first letter, Re-
spondent’s attorney wrote ‘‘we do not have copies . . . of
the collective-bargaining agreement,’’ which, under the cir-
cumstances described here, is a statement only susceptible of
one meaning, i.e., such agreement or agreements do not
exist. That clear meaning thereafter directly was commu-
nicated to Stern by Respondent’s counsel during the course
of a civil action brought by Stern, inter alia, to compel pro-
duction of an agreement.
Thus, despite Respondent’s belief, not a single New York
or New Jersey distributor had executed a collective-bargain-
ing agreement embodying the terms DiDio claims were ne-
gotiated in 1987. This is not hard to comprehend inasmuch
as DiDio conceded that it was not until January 1989, that
the so-called 1987 agreement was prepared and drafted by
Respondent. To be sure, Respondent explains this lengthy
delay on the press of other business, but those activities were
the usual, regular, and normal business of a union, e.g., ne-
gotiating and conducting a strike. Rather, as I have con-
cluded, there was no urgency to secure collective-bargaining
agreements from employers who have no employees or very
few employees and who nevertheless continue to forward the
dues, fees, and other moneys which might be due under an
agreement. Having drafted a contract, DiDio explained that
the first group of distributors approached for signatures was
the N.Y. Association (the record does not disclose when, if
ever, the balance of the 750 distributors in the soft drink in-
dustry under contract, real or otherwise, were solicited for
their signatures).
To this end, in January 1989, Local 812 sent an agreement
to some New York distributors who consulted Stern regard-
ing the demand by Local 812 to sign the agreement. Local
812 cranked the pressure upwards a notch or two, when, by
letter dated February 3, 1989, to Stern and all the distribu-
tors, signed by Local 812’s president Rumore, Respondent
called for a meeting on February 7 with the N.Y. Associa-
tion’s board of directors at Respondent’s office. The letter
advised that Canada Dry’s president Dennis Berberich would
be present and warned that ‘‘picket lines will be established’’
unless there is ‘‘a satisfactory resolution’’ of the ‘‘problems’’
between Local 812 and the distributors. While the problems
are not defined, there can be no doubt from all previous and
subsequent events, that the overriding problems were Re-
spondent’s demand for executed collective-bargaining agree-
ments and the transfer to Local 125 by the New Jersey dis-
tributors.
A meeting was then scheduled for, and held on, February
8, 1989, at Local 812’s office. Present were about eight of
the New York distributors, Stern as their counsel, Berberich,
and several other officials of Canada Dry and its counsel,
Rumore, DiDio, and several other officials of Respondent
and its counsel. Not a single New Jersey distributor was
present or represented at the meeting. What transpired at that
meeting is based on the credible and consistent testimony of
Stern, who on this, as well as other matters impressed me
265TEAMSTERS LOCAL 812 (CANADA DRY DISTRIBUTORS)
4 Kelly was unclear of the date, placing it after the signing of the Local 125
agreement on February 6 and after the signing by the New York distributors
of the Local 812 agreement on February 8, but about a week before the picket-
ing which began on February 9. Respondent places the meeting on January
30, clearly a more likely date under the circumstances.
as a careful, cautious, and candid person. Furthermore,
Stern’s account is corroborated by the entire sequence of
events both prior and subsequent to the meeting. DiDio, the
only other witness to this meeting, essentially did not dispute
Stern regarding material and significant matters. In any
event, Stern’s testimony is more reliable and coherent.
Stern immediately questioned the presence of Canada Dry
to which Rumore replied that the real issue was who did
Stern represent. To this Stern responded that he and the dis-
tributors present were there solely on behalf of the New
York distributors and they did ‘‘not represent the New Jersey
distributors because they have already entered into an agree-
ment in New Jersey with Local 125.’’ Local 812’s attorney
repeated Rumore’s questions and Stern repeated his answer.
Rumore then posed the same question to the distributors each
of whom identified himself and stated he represented the dis-
tributors at that particular plant in New York where he did
business.
With these introductions out of the way Rumore said, ‘‘He
was very angry with Local 125, that they were renegades,
but that they would be dealt with separately, but that he in-
tended to made sure the parties did not leave the meeting
that night without entering into a collective-bargaining agree-
ment.’’ Respondent was supported by Canada Dry’s presi-
dent and attorney both of whom expressed extreme displeas-
ure with the action of the distributors and warned that their
trucks would not be loaded unless they signed an agreement
with Local 812. Berberich addressed two of the distributors
in particular and said they would never get another Canada
Dry distributorship regardless of the outcome of the meeting.
Later that night an agreement was entered into between
Local 812 and the Canada Dry Distributors Association, Inc.
for a term retroactive from June 1, 1987, until May 31, 1991.
There are several articles worth noting including a standard
union-security clause, various wage and benefit provisions,
an agreement that the employers will not execute any con-
tract relating to the ‘‘hiring of Union help’’ with any organi-
zation claiming to be a labor organization in the soft drink
industry, and a statement that the contract supercedes any ex-
isting contract with any such union.
In addition, the preamble describes the parties to the
agreement as Local 812 and the Canada Dry Distributors As-
sociation, Inc.; ‘‘The Association and its members recog-
nize’’ Local 812; ‘‘the term ‘FIRM’ or ‘COMPANY’ where
used [in the contract] signifies the individual members of the
Association and non-members who have signed this Agree-
ment’’ (I construe this to mean all members of the Associa-
tion whether signing or not in addition to nonmembers who
sign); and finally, it provides:
ARTICLE 44: BINDING OF AGREEMENT: The AS-
SOCIATION obligates itself for all of its members that
they will comply with all of the provisions of this
Agreement, it being agreed and understood that the AS-
SOCIATION hereby contracts for and on behalf of
itself and all of its members. The ASSOCIATION shall
submit to the UNION a full list of its members, to-
gether with the names of the officers of such members
as are corporations, and of the individual members of
such as are co-partners, and shall notify the UNION of
all changes in, and additions to, the list of members as
they may occur.
This Agreement shall be binding upon each and
every FIRM with the same force and effect as if this
Agreement were entered into by each FIRM individ-
ually and upon its successors and assigns.
According to DiDio, Respondent drafted the contract in
January 1989 and although it contains 18 printed pages and
several attachments not a single change was made prior to
execution. Furthermore, there is no date appearing on the
signature page but rather a false statement that it was signed
‘‘the day and year first above written,’’ a reference to the
opening paragraph claiming, untruthfully as it turns out, that
it was entered ‘‘into as of the 1st day of June, 1987.’’
The agreement was signed by Rumore, a distributor identi-
fied as an authorized signature for the Association and wit-
nessed by seven Association directors. As Stern and Rumore
reviewed the entire agreement Stern repeated his earlier state-
ment that he was not representing the New Jersey distribu-
tors. Additional conversation was had after the contract was
signed and among other remarks was a statement by
Berberich that only the New York trucks would be loaded
the following day and a comment by Rumore that he and
Canada Dry, that night, had to negotiate regarding a distribu-
tion agreement in New Jersey.
According to DiDio, on conclusion of the meeting and at
about 2 a.m., Respondent convened a meeting of its execu-
tive board. The board discussed the fact that the New Jersey
distributors were not party to the agreement just reached with
the N.Y. Association because they had absented themselves
from the meeting, Stern had excluded them from the con-
tract, and as of January 30 they had gone ‘‘to a friendly
Local.’’ In addition, DiDio had met with Kelly and several
other New Jersey distributors at a diner in late January 1989,
probably on January 30.4 According to Kelly, whom I credit
in this regard, DiDio requested they sign the Local 812
agreement. The distributors refused on the excuse that they
had signed contracts with Local 125. In fact the contracts
had not yet been signed but the parties already had met for
that purpose and the distributors had signed the petitions to
transfer membership to Local 125, all of which was, by that
time, known to Respondent. Kelly’s mistake on this minor
matter does not impair the credibility of his further testimony
that DiDio reacted to their refusal to sign by stating that if
they did not sign there would be picketing at the New Jersey
branches, and the Local 812 drivers would not deliver the
product to New Jersey. Although DiDio denied these remarks
they are entirely consistent with all that occurred later and
fit within Local 812’s pattern of conduct in this case includ-
ing Rumore’s February 3 letter threatening all distributors
with picketing. Although these remarks, which I conclude
were unlawful threats, do not substantially affect the remedy
for the other violations found, the conduct nevertheless is
significant and deserves its own mention. Accordingly, I spe-
cifically reject DiDio’s denial.
The executive board therefore decided to picket the three
New Jersey branches of Canada Dry. That very same day,
February 9, 1989, pickets were established at the Hacken-
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sack, Whippany, and Carteret locations with picket signs
stating ‘‘Local 812 on strike against Canada Dry Distribu-
tors.’’ The picketing ended on March 4, 1989, on execution
of a collective-bargaining agreement between Local 812 and
eight members of the N. J. Association. The agreement is
identical to the one signed by the N.Y. Association members
except that where the contract refers to the contracting party
as the Association in the preamble and signatory page, the
phrase ‘‘New Jersey Distributors’’ was added. According to
Stern the only members who actually signed were those eight
who attended the signing ceremony at Local 812’s office.
Apparently, however, all the others are abiding by its terms
which in their case, since they do not have employees, trans-
lates to the payment of dues and other contributions on be-
half of the corporate owner, a fact readily inferred from the
action of the International union in rejecting their petition to
transfer from Local 812 to Local 125.
In fact, on execution of the agreement on March 4, the
distributors and Rumore signed a handwritten side agreement
that would have voided the collective-bargaining contract in
the event the International subsequently awarded ‘‘jurisdic-
tion over the employers that comprise the New Jersey dis-
tributors to Local 125.’’ That, as we have seen, did not hap-
pen, ‘‘jurisdiction over the employers’’ was awarded to
Local 812, which Union therefore was entitled by its internal
union procedures to retain the agreement and require the self-
employers to remain members of Respondent.
During the course of the picketing the Local 812 drivers
employed by Canada Dry refused to deliver products to New
Jersey, and the distributors were unable to engage in their
normal business activities while incurring all of their regular
expenses of operation. According to Kelly, this economic
pressure caused the distributors to accede to Local 812’s de-
mand for a contract the existence of which adds absolutely
nothing to the actual relationship between the parties except
to guaranty the continued membership of the self-employers,
inasmuch as the usual beneficiaries of a collective-bargaining
agreement, i.e., employees, are nowhere to be found.
The absence of employees reduces to legal insignificance
Respondent’s assertion, assuming its truth, that even without
an agreement the New Jersey distributors had an ongoing
collective-bargaining arrangement with Local 812. In this
connection, Respondent contends that Kelly’s testimony dem-
onstrates such relationship. Respondent misreads that testi-
mony. Kelly testified that N. J. Association members pri-
marily met with one another to discuss problems of mutual
concern regarding Canada Dry. They also met with Canada
Dry and at times with Local 812 to discuss ‘‘problems’’ and
‘‘grievances’’ (counsel’s words) not otherwise defined, but
that most of the time the problems concerned Canada Dry
and ‘‘not the Union.’’ In addition, they would discuss wel-
fare and pension payments to Local 812. This vague, gener-
alized testimony unrelated to anything specific, and without
factual detail, hardly constitutes evidence of a collective-bar-
gaining relationship. Such evidence, however, reinforces my
conclusions here that under the circumstances, Respondent’s
primary concern regarding these self-employers who did not
have employees, was that they continue to make payments
to various funds and to keep their membership intact.
Equally without merit is Respondent’s argument that the
New Jersey distributors by signing contracts with Local 125,
demonstrated that in fact they had employees. The logic of
such conclusion, in the face of overwhelming evidence to the
contrary, is not persuasive. Many inferences may follow but
not the one Respondent reaches. More likely, is that Local
125, no less than Local 812, was the recipient of a prehire
agreement.
Additional Conclusions and Discussion
In pertinent part Section 8(b)(4)(i) and (ii)(A) of the Act
makes it an unfair labor practice for a labor organization to
induce employees to engage in a work stoppage or to restrain
or coerce any person engaged in commerce, where in either
case an object of such conduct is to force or require any em-
ployer or self-employed person to join a labor organization
or to join any employer organization. The facts above estab-
lish that Local 812 engaged in conduct, i.e., the threat to
picket, the picketing, and the refusal to perform services (de-
livering Canada Dry products from New York to New Jer-
sey) clearly falling within the purview of conduct proscribed
by 8(b)(4)(i) and (ii). The area of dispute in this case is
whether or not such conduct was engaged in for either of the
objects delineated. Respondent contends that in fact its con-
duct was solely to obtain execution of the 1987 collective-
bargaining agreeaent previously negotiated and to secure ad-
herence to its terms. It asserts further that inasauch as the
distributors admittedly were meabers of both Local 812 and
the N.Y. Association, Respondent’s conduct could not, as a
matter of law, possibly have been for an object of forcing
thea ‘‘to join’’ such organizations. For the reasons that fol-
low, I reject Respondent’s factual and legal arguments and
find that Respondent’s conduct falls within the intendment of
Section 8(b)(4)(A).
Without a detailed repetition of the chain of events set
forth above, suffice to say the evidence is conclusive that not
only did the New Jersey distributors never agree to the 1987
contract, none of them so much as participated in negotia-
tions for such contract, none of them were bound to it by
the action of any authorized person, and not a single one of
them had a history of labor relations or previous contractual
relationship with Respondent individually or as part of a
multiemployer unit. Therefore, Respondent’s assertion that it
merely was seeking to achieve compliance with a preexisting
agreement is without any factual foundation and we must
look elsewhere for the purposes of Respondent’s conduct and
the legal consequences thereof.
Necessarily excluded from this inquiry, however, inasmuch
as the matters are not encompassed by the complaint, are
such issues as (1) the possible involvement of Section
8(b)(1)(A) and (2) by virtue of Respondent’s securing of
union-security agreements where it did not represent any em-
ployees and before any employees were hired; (2) possible
violations regarding any of the New York distributors; (3)
potential application of Section 8(b)(7)(C) where, as here,
Respondent picketed for recognition—implicit in the con-
tracts it obtained—at a time when the employers did not
have unit employees thus precluding a petition under Section
9 of the Act; and (4) the potential for the existence of a pro-
scribed object under Section 8(b)(4)(B) of the Act arising
from the apparent refusal by Respondent to allow employees
of Canada Dry to perform their regular duties of transporting
beverages to New Jersey from New York and the scope of
the picketing and threats to picket at Canada Dry’s premises.
267TEAMSTERS LOCAL 812 (CANADA DRY DISTRIBUTORS)
The evidence discloses that for about a 10-year period Re-
spondent has sought to unionize drivers and helpers in the
soft drink industry and has pursued that policy with respect
to both employees of the various bottling companies as well
as with the independent contractors engaged as distributors
by those companies. DiDio acknowledged that over time it
has secured membership from about 750 of such self-em-
ployed persons including the 43 New Jersey distributors in
this case. While DiDio couched the Respondent’s objective
in terms of obtaining collective-bargaining agreements from
the distributors, it is patently obvious, as found above, that
in many cases a collective-bargaining agreement was re-
quired only as a means to ensure application of the union-
security clause to the self-employed distributor.
Furthermore, as with the New Jersey group of 43, the ab-
sence of an agreement had not been an impediment to
achieving this objective particularly when we consider that
Respondent’s task was facilitated by Canada Dry’s require-
ment that as a condition of acquiring a distributorship an
owner had to agree to a Local 812 contract. But again, the
only meaning of an agreement with owners such as the New
Jersey group, who do not have employees, is to compel the
owner himself to abide by very limited and specific provi-
sions including the union membership requirement.
DiDio, himself, explained that Local 812 desired contracts
from self-employed distributors in order to apply to them
several specific provisions, including union security, in order
to protect the rights of its working members. He specifically
excluded from application of the contract such matters as
wages and hours, items he believed Local 812 could not law-
fully negotiate with an owner for his own protection. The
clear import of his testimony and the entire historical ap-
proach to the industry, is that Local 812 has had an
unremitting policy to require membership of any person per-
forming the work of delivering beverages (drivers and help-
ers) without exception for owners of corporations. Respond-
ent’s announced position is that such owners who work at
the tools of the trade nevertheless are employees of their own
corporation subject to the membership requirement of the
contract.
The need for a contract to achieve this objective became
urgent only when the New Jersey distributors signed con-
tracts with Local 125 as part of their efforts to transfer to
that union. It is not mere coincidence that although contracts
supposedly had been reached in about June 1987, Local 812
did not even prepare a draft until January 1989, and although
Local 812 purportedly had such phantom agreements with
750 distributors in the industry, the first group chosen for
signature was the N.Y. Association. It is ineluctable that an
object of Local 812’s conduct, and not necessarily its only
object, was to compel the New Jersey distributors to remain
members of Respondent.
But, Respondent, pointing to the literal language of Sec-
tion 8(b)(4)(A), argues that only conduct proscribed is that
which compels a self-employed person ‘‘to join’’ a union.
Such argument has only a superficial appeal. It is a familiar
maxim of statutory interpretation, particularly of this Act,
that the intent of Congress is not to be gleaned alone from
the literal language of the statute but from its spirit. National
Woodwork Mfrs. v. NLRB, 386 U.S. 612, 619 (1967), and
such is the case here. In Associated Musicians of Greater
New York Local 802 (Ben Cutler), 176 NLRB 198 (1969),
enfd. 422 F.2d 850 (2d Cir. 1970), the union had a policy
to unionize all band leaders regardless of the fact that such
policy also was directed to employers, a policy similar to Re-
spondent’s stated policy to unionize all persons driving a
beverage truck. A conductor in that case, Carroll, had been
expelled from membership allegedly for failing to pay his
employees union mandated wages. The union then engaged
in conduct designed to prevent its members from working for
or with Carroll on the grounds that he was an expelled mem-
ber and to do so would violate union rules. Carroll sought
to rejoin the union but was rejected because he would not
agree to the union’s terms for membership. The union’s ar-
gument that it did not violate Section 8(b)(4)(A) because it
refused Carroll’s application for reinstatement was rejected
by the Board which held that the union’s action was de-
signed to compel reinstatement into membership albeit on the
union’s terms. Thus, insofar as that case has application here,
it is quite clear that the Act frees employers from a compul-
sory rejoining of a union no less than a compulsory joining.
See also Painters Local 249 (John J. Reich), 136 NLRB 176
(1962). There a union violated Section 8(b)(4)(A) by engag-
ing in forbidden conduct to require a self-employed person,
a former member of the union, to rejoin because, as in the
instant case, that person was working with the tools of the
trade.
It would be singularly inappropriate to limit the protection
of Section 8(b)(4)(A) to self-employed persons from union
coercion to join, to rejoin, and to reinstate membership but
not to union coercion to retain membership, and I decline
that invitation, for to do otherwise would permit Respondent
an easy vehicle for requiring owner-drivers to become or re-
main members under the guise of enforcing a union-security
clause contrary to the spirit of Section 8(b)(4)(A). Teamsters
Local 525 (Helkamp Construction), 271 NLRB 148 (1984).
It seems evident that Section 8(b)(4)(A) does not and
should distinguish between nonmembers, former members,
and present members in providing self-employers protection
from compulsory union membership. See generally Musi-
cians Local 6 (Hyatt Regency), 298 NLRB 740 (1990), and
the discussion at footnotes 4 and 5 concerning the purpose
of Section 8(b)(4)(A). The illogic of first requiring a ‘‘res-
ignation’’ in order to protect a self-employer against coerced
membership is noticeably apparent here. How ironic if Re-
spondent could escape the consequences of its actions where
the very act of resignation that it would require was itself
prevented by the same unlawful conduct that compelled the
self-employers to remain as members. The observation by
Administrative Law Judge Herlands in McLeod v. Associated
Musicians of New York, 283 F.Supp. 176, 182 (D.C.N.Y.
1968), granting an injunction under Section 10(1) in Musi-
cians Local 802, supra at 182, illuminates the fallacy of Re-
spondent’s argument here:
Respondent must be taken to have intended the ac-
complishment of the obvious, immediate and direct ef-
fect of its conduct. This obvious, immediate and direct
object and its obvious, immediate and direct intended
effect are equatable in a casual relationship. That in-
tended object and effect are to bring coercive pressure
on Carroll in order to make him rejoin Respondent on
terms acceptable to it. Respondent’s ultimate objective
and broader purpose is to unionize all orchestra leaders
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in order that only union members will fill the jobs of
leading orchestras. The immediate object and effect vis-
a-vis Carroll is one step toward the achievement of the
ultimate objective and broader purpose vis-a-vis all or-
chestra leaders.
Similarly, in the instant case, Respondent’s broader purpose
is to unionize all who use the ‘‘tools of the trade,’’ be it con-
ducting a band or delivering bottled beverages, and its con-
duct towards the distributors is but one step in furtherance
of that objective. As was required of the Respondents in the
two Musicians cases, supra, Respondent here also must face
the music.
Finally, I reject as without any merit, the suggestion that
the International union’s award of ‘‘jurisdiction’’ over the
distributors to Respondent rather than to Local 125 was, in
Respondent’s view ‘‘entirely proper’’ (R. Br.). From this ar-
gument it is implied either that the Board should defer to the
International’s resolution of what it has characterized as a
‘‘jurisdictional’’ dispute or that the International’s ruling pro-
vides Local 812 with an immunity from the application of
Section 8(b)(4) of the Act. Respondent offers no legal sup-
port for its position and I am not aware of any. It is black
letter law that statutory interpretation of the Act is the prov-
ince of the Board and it goes without saying that Respond-
ent’s actions are to be judged not by what its International
determines is proper but by what the Act, as applied by the
Board and courts, determines to be the case. A form of in-
verted logic would have to apply for the Board to defer to
the International’s ruling or hold that such ruling is a defense
to conduct otherwise in violation of Section 8(b)(4)(A),
where that very ruling itself may have implicated the Inter-
national in the violation, a matter that need not be decided
in the absence of a charge and complaint. Suffice to say the
International’s award in no sense legitimized Local 812’s
picketing. Rather, it simply confirms my view that continued
membership in Local 812 was not a voluntary act on the part
of the distributors but was coerced by Respondent which
then received the International’s blessing for its conduct.
There remains for consideration the further aspect of Sec-
tion 8(b)(4)(A), namely that Respondent had the additional
object of forcing the New Jersey distributors to join the N.Y.
Association, an employer organization. Again, Respondent
asserts it cannot be found guilty of forcing a person ‘‘to
join’’ an organization to which he already belongs. To which
the General Counsel replies that it is forced membership for
a specific purpose, i.e., collective bargaining, that renders
Respondent’s action unlawful. I agree with the General
Counsel as this approach is consistent with the overall pur-
poses of the Act.
It will be recalled that the sole purpose of the N.Y. Asso-
ciation was to provide truck liability insurance at a group
rate for those distributors who joined and to serve as a forum
for other general business purposes. Until Respondent’s con-
duct in January 1989 converting the Association into a bar-
gaining agent it did not function in that capacity in any
sense. The tactics employed by Respondent to achieve that
objective with some New York members of the N.Y. Asso-
ciation at the time it secured execution of the collective-bar-
gaining agreement on February 8, 1989, need not be consid-
ered here for the evidence is conclusive that the New Jersey
members remained apart from that ‘‘negotiation’’ process. It
also is beyond doubt that Local 812, in drafting that agree-
ment, employed language casting the N.Y. Association in the
role of a bargaining agent for all its members. Indeed, the
language chosen is strongly suggestive of the creation of a
multiemployer unit, awaiting only the acts of the employers
evidencing an intent to be bound by such group action. In
effect, Local 812 created a new organization by materially
and significantly altering the purposes for which it previously
existed. By coercing the New Jersey distributors to sign that
agreement it evidenced an object prohibited by Section
8(b)(4)(A). By adding the further phrase ‘‘New Jersey Dis-
tributors’’ to the identification of the contracting employers,
Respondent made plain its object of requiring all members
of the N. J. Association to select or join the N.Y. Association
as reconstituted by Respondent. In addition, Stern’s unrefuted
testimony was that not all the New Jersey distributors be-
longed to the N.Y. Association. Therefore as to those mem-
bers there is unqualified evidence of prohibited object, i.e.,
forcing a self-employer ‘‘to join’’ an employer organization.
Moreover, even if a technical ‘‘joining’’ of a new organi-
zation was not effected, it seems apparent that by coercively
requiring the self-employers to utilize an organization for
collective-bargaining purposes, the statutory intent has been
met. The Act generally is not concerned with, nor does it
seek to regulate, employers’ business dealings that do not in-
fringe on labor relations matters. Section 1 of the Act de-
clares it to be the policy of the United States to assure the
free flow of commerce by, inter alia, encouraging collective
bargaining and assuring workers the opportunity to freely or-
ganize. It would appear to follow that Congress, in enacting
Section 8(b)(4)(A), surely must have intended to interdict
union coercion directed at self-employers with respect to
their membership in organizations, only insofar as that mem-
bership pacted on collective bargaining. If coercion for such
an object, and it need not be the only object, is found then
Section 8(b)(4)(A) is violated. Consequently, the fact that
distributors belonged to the N.Y. Association for auto insur-
ance purposes is not significant in assessing Local 812’s ob-
ject in compelling membership for collective-bargaining pur-
poses as well. In the context of this case, mere membership
does not preclude a finding of an unlawful object. Accord-
ingly, whether Local 812’s conduct is viewed as forcing the
New Jersey distributors to ‘‘join’’ a new organization created
by the Respondent (bearing in mind that some of them in
fact did not belong to the N.Y. Association in any form), or
to convert their membership in an existing organization to
meet the collective-bargaining goal of Respondent, the pick-
eting and refusal to perform services for such objects further
violates Section 8(b)(4)(i) and (ii)(A).
CONCLUSIONS OF LAW
1. Canada Dry Bottling of New York is an employer en-
gaged in commerce and in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and a person engaged in commerce within the meaning of
Section 8(b)(4)(i) and (ii)(A) of the Act.
2. The 43 Canada Dry distributors doing business in New
Jersey belonging to the Canada Dry Distributors Association
of New Jersey, enumerated in the complaint in this case, and
each of them, is an employer engaged in commerce and in
an industry affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and a self-employed person
269TEAMSTERS LOCAL 812 (CANADA DRY DISTRIBUTORS)
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
within the meaning of Section 8(b)(4)(i) and (ii)(A) of the
Act.
3. Local 812, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL–
CIO is a labor organization within the meaning of Section
2(2) of the Act.
4. By picketing and by threatening to picket the aforesaid
distributors and by picketing Canada Dry’s premises and by
refusing to perform services for that employer, Respondent
has threatened, coerced, and restrained the distributors and
Canada Dry and has induced and encouraged individuals em-
ployed by Canada Dry and others to refuse to perform serv-
ices for their respective employers.
5. Respondent engaged in the aforesaid conduct in further-
ance and enforcement of its policy requiring union member-
ship of all distributors engaged in the delivery of bottled bev-
erages irrespective of whether such person is an employer or
self-employer, and in order to force or require the aforesaid
New Jersey distributors to join and remain members of Re-
spondent and to join or remain members, for collective-bar-
gaining purposes, of the Canada Dry Distributors Associa-
tion, Inc., an employer organization.
6. By the aforesaid acts and conduct Respondent engaged
in unfair labor practices in violation of Section 8(b)(4)(i) and
(ii)(A) of the Act, which affect commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated Section 8(b)(4)(i)
and (ii)(A) of the Act, I shall recommend that it cease and
desist therefrom as well as take certain affirmative action de-
signed to effectuate the purposes of the Act. Unfortunately,
the General Counsel has not filed a brief or taken a position
on the record concerning the parameters of the affirmative
relief it deems appropriate to remedy the rather unique cir-
cumstances surrounding the violations here. Bearing in mind
the need to restore the status quo ante to the degree possible,
I recomend the following remedial action.
First, in light of the widespread nature of the violation af-
fecting self-employers, and Respondent’s policy to unionize
all distributors in the bottled beverage industry, not only
those engaged by Canada Dry, or involved in this case, it is
appropriate to fashion a ‘‘broad’’ order. See Associated Mu-
sicians of Greater New York Local 802 (Ben Cutler), 176
NLRB 198. Because the Board shapes remedies in order to
effectuate the public purposes of the Act it is not confined
to the immediate dispute. NLRB v. Seven-Up Bottling Co. of
Miami, 344 U.S. 344 (1953).
Second, having unlawfully coerced the distributors into re-
maining members, Respondent shall reimburse them for all
membership dues and fees collected subsequent to such un-
lawful action, see Teamsters Local 814 (Santini Bros.), 208
NLRB 184 (1974), with interest calculated in accordance
with the principles prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
Third, Respondent having coerced a ‘‘collective-bargain-
ing’’ agreement from self-employers who do not have em-
ployees in order to compel membership in both Local 812
as well as the Canada Dry Distributors Association, Inc., I
shall recommend that it rescind those agreements, advise the
distributors in writing that they are null and void, and that
it will take no steps to maintain them in force and effect. I
would be reluctant to recommend such action if any employ-
ees would be adversely effected and if Local 812 was the
majority representative in a unit of employees. But the con-
trary is the case, a finding fully justified by this record on
a matter fully litigated, notwithstanding the absence of any
8(b)(1)(A) allegations. Indeed these circumstances provide
additional basis for this recommendation, for the Board
should not turn a blind eye to a situation so fraught with po-
tential harm to employees, if and when they may be hired
by these distributors. To do otherwise would ignore em-
ployee rights the Act is designed to protect.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Local 812, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Picketing or in any other manner or by any other
means engaging in, or inducing, or encouraging any individ-
ual employed by Canada Dry Bottling of New York, or any
other person engaged in commerce or in an industry affecting
commerce within the meaning of the Act, to engage in a
strike or refusal in the course of his employment to handle
or work on any goods, articles, materials, or commodities or
to perform any services; or threatening, coercing, or restrain-
ing Canada Dry Bottling of New York, the members of the
Canada Dry Distributors Association of New Jersey, or any
other person engaged in commerce or in an industry affecting
commerce, where in either case an object thereof is to force
or require the members of the Canada Dry Distributors Asso-
ciation of New Jersey or any other employer or self-em-
ployed person to join or remain a member of Teamsters
Local 812 or of the Canada Dry Distributors Association,
Inc. for the purposes of collective bargaining or of any other
employer organization.
(b) Applying, maintaining in force, or giving effect to the
collective-bargaining agreements and amendments, and addi-
tions thereto entered into with the Canada Dry Distributors
Association of New Jersey and its constituent members ef-
fective by its terms for the period June 1, 1987, through May
31, 1991, or to any modification, extension, supplement, or
renewal of those agreements.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse all membership dues and fees collected
from the self-employed members of the Canada Dry Dis-
tributors Association of New Jersey subsequent to its unlaw-
ful picketing of them which commenced February 9, 1989,
with interest in the manner set forth in the remedy section
of this decision.
(b) Notify, in writing, the Canada Dry Distributors Asso-
ciation of New Jersey and each of its constituent members,
that the collective-bargaining agreements, additions, and
agreements thereto entered into for the period of June 1,
1987, through May 31, 1991, are null and void and that it
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
will not enforce or give effect to the agreements or to any
modification, extension, supplement, or renewal thereof.
(c) Post at its business office copies of the attached notice
marked ‘‘Appendix.’’6 Copies of the notice, on forms pro-
vided by the Regional Director for Region 22, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(d) Forward a sufficient number of signed copies of the
notice to the Regional Director for Region 22 for posting by
the Canada Dry Distributors Association of New Jersey and
each of its self-employed members and by Canada Dry Bot-
tling of New York for posting at its locations in College
Point, New York, and at its New Jersey locations in Carteret,
Hackensack, and Whippany, if the persons are willing to do
so.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.