Teamsters Local. No. 688

National Labor Relations Board - Board Decisions

Oct 13, 1971

193 N.L.R.B. 701 (N.L.R.B. 1971)

TEAMSTERS LOCAL NO. 688
Teamsters Local No. 688 , affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Schnuck
Markets , Inc. and Independent Brotherhood of
Beverage Salesmen , Servicemen , Chauffeurs and
Helpers Union , Local 67. Case 14-CE-20
October 13, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On July 15, 1971, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondents 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, only
Respondent Teamsters Local 688 filed exceptions to
the Trial Examiner's Decision. Respondent Schnuck
Markets filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, Respondent Teamsters Local
No. 688's exceptions, Respondent Schnuck Markets,
Inc.'s, brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Teamsters Local No. 688, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives; and Respondent Schnuck
Markets, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner : Upon a charge filed
April 7, 1971, by Independent Brotherhood of Beverage
701
Salesmen, Servicemen, Chauffeurs, and Helpers Union,
Local 67, herein the Beverage Salesmen, against Teamsters
Local 688, herein the Teamsters, and Schnuck Markets,
Inc., herein Schnuck, jointly as the Respondents, the
General Counsel issued complaint alleging that by their
interpretation of the contract between the Teamsters and
Schnuck, Schnuck has ceased doing business with Pepsi-
Cola Bottling Company of St. Louis in violation of Section
8(e) of the Act. (The General Counsel agreed that the
contract itself was lawful.)
Respondents deny that their construction of the contract
violates Section 8(e) of the Act.
This proceeding, with all parties represented, was heard
by me at St. Louis, Missouri, on May 24, 1971.
At the conclusion of the hearing the parties were given
leave to file briefs.
Upon the entire record in this case and from my
observation of the witnesses while testifying, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF SCHNUCK
Schnuck is a Missouri corporation having its office and
principal place of business in St. Louis County, Missouri. It
is engaged in the retail sale and distribution of groceries,
meats, and related products. Its stores in metropolitan area
of St. Louis are the only ones involved in this proceeding.
Schnuck has gross sales exceeding $500,000 annually and
causes to be transported to its St. Louis store meats,
groceries, and other products directly from outside the
State of Missouri valued in excess of $50,000 annually. It is
engaged in commerce.
II. LABOR ORGANIZATIONS INVOLVED
Both the Teamsters and the Beverage Salesmen are labor
organizations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
At the opening of the hearing the parties entered into a
stipulation covering facts relating to the issue. This
stipulation, signed by Phillip Dexter, Ben N. Messina,
Harry H. Craig, and John P. Emde (G.C. Exh. 2), is
attached hereto as Appendix A.
Also received in evidence was the grocery industry
contract with the Teamsters, to which Schnuck was a party,
effective January 1, 1969 (G.C. Exh. 3), and the current
industrywide contract with the Teamsters, to which
Schnuck was also a party (G.C. Exh. 4-a) and the
addendum to said contract (G.C. Exh. 4-b). The clauses of
this contract which affect the issue, as to their construction
only, are:
ARTICLE XIII
Section 2.
(a) All merchandise for resale which is delivered to a
retail outlet owned by the Employer ("owned"
means more than fifty percent ownership) in the
greater St. Louis area, shall be delivered from the
193 NLRB No. 109
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse(s) of the Employer covered by the
Collective Bargaining Agreement.
(d) If the provisions of this Section would require a
change in any operations as then being conducted
by the Employer, such change need be made by
the Employer only after sixty (60) days written
notice from the Union specifying the change to be
made and the provisions of the Section under
which the change is required.
These provisions also appeared in the 1969 contract and in
the addendum to the 1970 contract.
The warehouse employees of Schnuck were covered by
this contract; the drivers for Schnuck were covered by a
contract with a sister local of the Teamsters, Local 610.
Schnuck in the course of its business purchases soft dunks
from Canada Dry, Coca-Cola, Royal Crown, Pepsi-Cola,
Vess, Seven-Up, and Dr. Pepper. On July 28, 1969, the
Teamsters sent the following letter (G.C. Exh. 5) to
National Tea Company; General Grocery Company;
Wetterau Grocer Company; J.F. Conrad Grocer Compa-
ny; Tom Boy Stores; S & W Fine Foods; and Schnuck
Markets.
Your firm purchases soda under various brand names
from Pepsi-Cola Metropolitan Bottling Company, Inc.,
647 Tower Grove, St. Louis, Missouri (hereafter called
"Pepsi-Cola Company"), for resale by your retail
outlets. At the present time, all such soda is being
delivered directly to your retail outlets by employees of
the Pepsi-Cola Company.
Under the provisions of Article XIII, Section 2(D) of
our collective Bargaining Agreement with you, this
Union hereby notifies you that it demands that sixty
(60) days after the receipt of this notice, you change the
present method of having such soda delivered to your
retail stores in the greater St. Louis area , and that from
and after sixty (60) days after the receipt of this notice
that all soda purchased from Pepsi-Cola Company be
delivered to your retail outlets in the greater St. Louis
area from your warehouse or warehouses covered by
said Collective Bargaining Agreement as required by
Article XIII, Section 2(A) of that same agreement.
On March 17, 1970, the Teamsters sent the following
letter (G.C. Exh. 6) to Schnuck:
On July 28, 1969, you were notified by Harold J.
Gibbons, Secretary-Treasurer of Teamsters Local
Union No. 688, that under the provisions of Article
XIII, Section 2(d) of your Collective Bargaining
Agreement with Local 688, the Union notified you that
it demanded that after sixty (60) days from the receipt
of the notice you change the present method of having
certain soda delivered to your retail stores in the St.
Louis Area, and further demanded that any such soda
be delivered to your retail outlets in the St. Louis Area
in accordance with the requirements of Article XIII,
Section 2(a) of the Collective Bargaining Agreement.
We are advised that you still have not complied with
our previous demand.
You are hereby notified that unless these demands are
complied with within thirty (30) days of the receipt of
this letter, Local 688 intends to take action to enforce its
Collective Bargaining Agreement.
Donald Schnuck, president of Schnuck, testified that he
made no response to either letter. In late 1970 he received a
telephone call from Mr. Kavner, a representative of the
Teamsters, in which Kavner told him Pepsi-Cola products
would have to be run through the warehouse. Schnuck
asked for more time on the ground that a recently
completed purchase of the Bettendorf stores had complicat-
ed his situation. He was given until February 1. On
February 19 Levi Sandford, vice president of the Team-
sters, visited Schnuck's office and asked him why he had
not put Pepsi-Cola into the warehouse. Schnuck stated he
had only agreed to discuss the problem and a meeting was
held on March 4. Donald Schnuck, his brother Ted, Forrest
Hardin, personnel director and Terrel Vaughn, Schnuck's
attorney, represented Schnuck. Kavner and Sandford
represented the Teamsters. The Teamsters insisted that
Pepsi-Cola be put through the warehouse despite various
objections from Schnuck including his protest that Pepsi-
Cola probably would not deliver to his warehouse since it
was industry practice for the bottling companies to deliver
directly to the stores, using their own driver-salesmen. The
meeting terminated without agreement. On March 8
Donald Schnuck received a call from Sandford telling him
they would have to stock Pepsi-Cola in the warehouse, but
that he would give him a further extension until April 1.
On March 8 Donald Schnuck talked with Hal Richard-
son, sales manager for Pepsi, who told him it was their
policy not to deliver to a warehouse and they were not
going to start then. A meeting was arranged with a Mr.
Wiss, Richardson's supervisor, which took place a week
later at which Pepsi-Cola adhered to its refusal to
warehouse it products.
About March 24 Schnuck instructed his management
personnel not to accept deliveries at the stores after April 1.
A summary of deliveries prepared by Schnuck shows that
there were purchases made from Pepsi-Cola during the
week ending March 24. (G.C. Exh. 7.)1
Robert Selvy, a route salesmen for Pepsi-Cola and
president of the Beverage Salesmen , testified that the
Beverage Salesmen represented about 250 employees of
Pepsi-Cola, of whom about 88 were driver-salesmen.2 On
March 19 Selby was informed by Jerry Gibson, personnel
director of Pepsi-Cola, that the Teamsters were applying
pressure on Schnuck to have deliveries made to the
warehouse rather than to the stores. On March 24, Selby
and Berra, secretary-treasurer of the Beverage Salesmen,
and Frank Vaughan, vice president, met with Kavner of the
Teamsters. Selby informed Kavner that delivery to the
Schnuck warehouse would mean the loss of 25 to 30 men at
Pepsi-Cola. Kavner told him the Teamsters intended to
enforce article XIII of their contract and that they would
picket the warehouse and the Schnuck stores if necessary.
Kavner also told him that there was no demand that the
other soft drink companies would be required to go through
the warehouse, the demand applied only to Pepsi-Cola.
Kavner told him that if the Pepsi-Cola drivers became
Teamsters deliveries could continue to be made through the
2 The Pepsi -Cola Beverage Salesmen contract was received as G.C. Exhi This exhibit does not agree with the testimony which establishes
deliveries ceased on April 1 8.
TEAMSTERS LOCAL NO. 688
stores. He also informed Selby that on June 1 pressure
would be put on National Tea to require Pepsi-Cola
products pass through the warehouse. On April 1 the
Schnuck stores refused to accept delivery of Pepsi-Cola
products. Deliveries were resumed on May 3 following the
issuance of a restraining order by a district court.
The above, together with the stipulation of the parties,
presents the facts upon which the case must be decided.
B. Conclusions
Section 8(e) in its relevant part reads-
It shall be an unfair labor practice for any labor
organization and any employer to enter into any
contract or agreement , express or implied, whereby
such employer ceases or refrains or agrees to cease or
refrain from handling, using , selling, transporting or
otherwise dealing in any of the products of another
employer, or to cease doing business with any other
person.. .
This section was enacted to close the loophole provided by
Local 1976, United Brotherhood of Carpenters v. N.L.R.B,
357 U.S. 93, which held that a strike to enforce a "hot
cargo" clause was unlawful but that the mere execution of
such a clause or its voluntary observance by an employer
was not . The section was aimed directly to end the evasion
of the prohibitions of Section 8(b)(4)(A) and (B) by
voluntary agreement
In the Woodwork Manufacturer's case3 the Supreme
Court reviewed at length the legislative history of Section
8(e) and the Congressional intent and established the
distinction between conduct designed to preserve the work
of the primary employer's employees, which it held lawful,
and conduct "tactically calculated to satisfy union
objectives elsewhere," which it held was not. The touch-
stone , said the Court, was whether the agreement or its
maintenance is addressed to the labor relations of the
contracting employer vis-a-vis his own employees.
Conceding that drawing of the line might present
difficulty I do not find the instant case poses any real
problem. Here the work of delivering the soft drink
suppliers' (including Pepsi-Cola) products from the supplier
to Schnuck 's retail outlets had not been performed by the
employees of Schnuck but by the suppliers employees and
work preservation for the bargaining unit was not the
motivating factor. Warehouse deliveries by Schnuck to its
stores were confined to food products. The purpose of the
new construction of the agreement, implemented by
Schnuck's order to his stores to accept no more bottled
products from Pepsi-Cola after April 1, was to force the
employees of Pepsi-Cola to withdraw from their own union
and to join the Teamsters. This was made "abundantly
clear" in the conversations between Selby and Berra with
Kavner. It was also made clear by the statement that only
Pepsi-Cola would be required to deliver to the warehouse,
the other bottlers, whose drivers were represented by the
Teamsters, would continue as usual
I have considered the fact that the request of the
3 Woodwork Manufacturers Association v N L R B, 386 U S 612
+ In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
703
Teamsters would not require that Schnuck's cease doing
business completely with Pepsi-Cola but only to change the
point of delivery. Such a change would have had required a
reduction in the bargaining unit of drivers at Pepsi-Cola
and furthered the purpose of the Teamsters request; i.e., a
change in the bargaining representative of the drivers at
Pepsi-Cola. The Act does not require that a union demand
a complete cessation of doing and the Supreme Court has
held that such a reading is too narrow. N.L.R.B. v. Local
825, Operating Engineers (Burns and Roe, Inc), 400 U.S.
297.
The Respondents offered neither oral argument nor a
brief to support their positions. Under the circumstances I
think further comment unwarranted.
Upon the foregoing findings I make the following:
CONCLUSIONS OF LAW
1. By reaching agreement on or about April 1, 1971,
whereby article XIII of the contract between Schnuck and
the Teamsters should be construed, interpreted and applied
so as to require Pepsi-Cola to deliver its products to the
warehouse of Schnuck rather than to its retail stores,
Schnuck ceased and refrained from handling, using, selling,
and transporting or otherwise dealing with the products of
Pepsi-Cola the Respondents violated Section 8(e) of the
Act.
2. The aforesaid labor practices are unfair labor
practices within the meaning of the Act.
THE REMEDY
Having found the Respondents Schnuck and Teamsters
engaged in certain unfair labor practices I shall recommend
that they cease and desist from the same and take certain
action necessary to effectuate the policies of the Act.
Upon the findings and conclusions of law and upon the
entire record in this case, I issue the following
recommended: 4
ORDER
Respondent Teamsters Local 688, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men, and Helpers of America, its officers, agents, and
representatives, and Respondent Schnuck Markets, Inc., its
officers , agents, successors , and assigns , shall:
1. Cease and desist construing, interpreting, applying,
or giving any effect to article XIII of their contract effective
June 1, 1970, and expiring May 31, 1973, or to any
addendum or modification thereof, which would require
Pepsi-Cola Bottling Company of St. Louis to deliver its
products to the warehouse of Schnuck's Markets, Inc.,
rather than to the retail stores operated by Schnuck's
Markets Inc. or require Schnuck's Markets Inc., to cease or
refrain from doing business with Pepsi-Cola Bottling
Company of St. Louis by requiring Pepsi-Cola to deliver its
products to its warehouse.
2. Take the following affirmative action:
Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings , conclusions , and Order , and all objections thereto
shall be deemed waived for all purposes
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Respondent Teamsters Local No. 688, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America shall post at all its
meeting halls in St. Louis, Missouri, copies of the attached
notice marked "Appendix B."5 Copies of the notice, on
forms to be furnished by the Regional Director for Region
14, shall, after being duly signed by a representative of
Respondent Teamsters, Local No. 688, be posted immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
(b) Respondent Schnuck's Markets, Inc., shall post at its
stores, warehouses and all its other places of business in St.
Louis, Missouri, copies of the attached notice marked
"Appendix C."6 copies of said notice, on forms to be
furnished by the Regional Director for Region 14, shall,
after being duly signed by an authorized representative of
Schnuck's Markets, Inc., be posted immediately upon
receipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees 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.
(c) Respondents Teamsters Local No. 688 and Schnuck's
Markets, Inc., shall notify the Regional Director for Region
14, in writing, within 20 days from the receipt of this Order,
what steps have been taken to comply herewith.?
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
6 Fn 5, supra
7 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 14, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
APPENDIX A
STIPULATION
IT IS HEREBY STIPULATED AND AGREED by and between
Teamsters Local No. 688, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called Respondent Local
688), Schnuck Markets, Inc. (hereinafter called Respondent
Schnuck), Independent Brotherhood of Beverage Salesmen,
Servicemen, Chauffeurs and Helpers Union, Local 67
(herein called Charging Party), and the General Counsel of
the National Labor Relations Board, that:
1. Prior to April 1, 1971, all soft drinks sold by national
brand bottling companies in the St. Louis metropolitan
area, including Canada Dry, Coca Cola, Pepsi-Cola, Royal
Crown, Dr. Pepper, 7-Up, and Vess were delivered directly
by employees of the bottling companies to the individual
stores of Respondent Schnuck.
2. The employees of said bottling companies who make
deliveries directly to the individual stores of Respondent
Schnuck are, except for Pepsi-Cola employees, represented
by Respondent Local 688. The employees of Pepsi-Cola
making said deliveries are represented by Charging Party
and have been since 1941.
3. That Respondent Local 688 presently represents
employees in the warehouse bargaining unit of Respondent
Schnuck, and that Local 610 of the Teamsters represents
those employees of Schnuck presently employed to make
deliveries of food products from Schnuck's warehouse
facilities to the individual retail stores.
4. That Respondent Local 688 initially demanded, by
letter dated July 28, 1969, in accordance with Article XIII,
Section 2(d), of the collective-bargaining agreement, that all
Pepsi-Cola products thenceforth be delivered to and
handled through Respondent Schnuck's warehouse facili-
ties in accordance with the requirements of Section 2(a) of
said article, and that said demand was renewed by letter
dated March 17, 1970, the original letters having been
received by Respondent Schnuck.
5. That the demand did not include, and no equivalent
demand was made at any time with regard to, any of the
other national brand soft drinks sold and delivered to
Schnuck's individual stores by the bottling companies in
the metropolitan St. Louis area.
6. That immediately prior to April 1, 1971, Respondent
Schnuck was purchasing from the St. Louis bottling
companies an average of approximately 20,500 cases a
week, of which the purchases from Pepsi-Cola were
averaging approximately 8,400 cases, and that between 85
and 95 percent of these purchases by Schnuck from all
bottling companies were in returnable containers.
8. That it is the policy of the Pepsi-Cola Bottling
Company of St. Louis not to sell and deliver its products
directly to a central warehouse of a supermarket chain for
subsequent redelivery to the individual stores, and Pepsi-
Cola has never made deliveries to the warehouse facilities
of Respondent Schnuck.
9. Pepsi-Cola is a leader in soft drink sales in
Respondent Schnuck's stores in the St. Louis area, it being
a highly advertised product on a national basis.
10. That if required to deliver to a central warehouse
instead of directly to retail outlets, there would be a loss of
income to Pepsi-Cola employees represented by Charging
Party, there would be a possible loss of jobs in the Local 67
bargaining unit, and Pepsi-Cola would lose desirable
display space in the individual stores of Respondent
Schnuck.
11. That National Tea Company, doing business as
National Food Stores in the metropolitan St. Louis area,
has a contract with Respondent Local 688 which contains
an identical Article XIII.
12. That Respondent Local 688 has made demand upon
National Tea Company that said company change its
policy and require Pepsi-Cola products to be delivered only
to its central warehouse facilities instead of directly to the
individual stores.
13 At all times material herein, Pepsi-Cola employees
have been and are delivering Pepsi-Cola products directly
TEAMSTERS LOCAL NO. 688 705
to the individual National Food Stores and not to central
warehouse facilities of that company.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT construe, interpret, apply, or give any
effect to article XIII of our collective-bargaining
contract with Schnuck's Markets, Inc., which would
require Schnuck's Markets, Inc , to stop doing business
with Pepsi-Cola Bottling Company of St. Louis by
requiring that company to make deliveries of its
products to Schnuck's Markets warehouse instead of to
its stores
TEAMSTERS LOCAL 688,
AFFILIATED WITH
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
This is
anyone.
an official
(Representative ) (Title)
notice and must not be defaced by
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard , Room 448 , St. Louis, Missouri
63101, Telephone 314-622-4142.
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT construe, interpret, apply, or give any
effect to article XIII of our contract with Teamsters
Local No. 688 which will require us to stop doing
business with Pepsi-Cola Bottling Company of St.
Louis, Missouri, unless that company delivers its
products to our warehouse.
WE WILL continue to accept deliveries of Pepsi-Cola
products at our retail stores and we will not make any
request or demand that it deliver its products to our
warehouse.
WE WILL rescind any and all orders to our store
managers and other employees not to accept delivery of
Pepsi-Cola products at our retail stores.
SCHNUCK'S MARKET, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4142.