Simon Levi Co., Ltd.

National Labor Relations Board - Board Decisions

Mar 26, 1970

181 N.L.R.B. 826 (N.L.R.B. 1970)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simon Levi Company , Ltd.; Sterling Liquor
Distributors , Inc. and Paul Ganley and Chauffeurs,
Sales Drivers and Helpers Union , Local No. 572,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America ( Simon Levi Company, Ltd.; Sterling
Liquor Distributors , Inc.) and Buchalter , Nemer,
Fields & Savitch . Cases 21-CA-8576 and
21-CB-3420
March 26, 1970
DECISION AND ORDER
BY CHAIRMAN MCCLJLLOCH AND MEMBERS
FANNING AND BROWN
On December 3, 1969, Trial Examiner Martin S
Bennett issued his Decision in the above-entitled
proceeding, finding that Respondents had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and an
answering brief, and Respondents filed
cross-exceptions and briefs in answer to the
exceptions and brief of the General Counsel.
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 these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the
cross-exceptions, the briefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner'
The complaint, issued July 30, 1969, is based upon a
charge filed in Case 21-CA-8576 on May 14 by Paul
Ganley, an individual, against Respondent Employer,
Simon Levi Company, Ltd and Sterling Liquor
Distributors, Inc, and, in Case 21-CB-3420, on July 15,
1969, by counsel for Respondent Employer against
Chauffeurs, Sales Drivers and Helpers Union, Local No.
572, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
Respondent Union. The complaint alleges that
Respondent Employer had engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1)
and that Respondent Union had engaged in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act Briefs have been submitted by the parties.
Ruling was reserved on a motion to dismiss the complaint
and it is disposed of consistent with the findings below
Upon the entire record in the case, and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Simon Levi Company, Ltd. and its wholly owned
subsidiary Sterling Liquor Distributors, Inc , are
corporations engaged in the wholesale distribution of
liquor in Southern California and maintain their main
office and principal place of business at Carson,
California Each company annually purchases and receives
products valued in excess of $50,000 from points outside
the State of California. I find that the operations of
Respondent Employer affect commerce within the
meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
Chauffeurs, Sales Drivers and Helpers Union, Local
No. 572, Food, Drug and Beverage Warehousemen and
Clerical Employees' Union, Local No 595, and Wholesale
Delivery Drivers and Salesmen's Union, Local 848, all
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, are
labor organizations within the meaning of Section 2(5) of
the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
.herein be, and it hereby is, dismissed in its entirety.
'Member Brown would defer to the arbitrator' s decision in dismissing
the allegations herein in view of the fact that representatives of each of the
locals involved were present at the arbitration proceedings, and the
contracts that were negotiated jointly by Teamsters Joint Council No 42
on behalf of Locals 848 and 595 contained similar "new locations" and
arbitration provisions
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner This matter was
heard at Los Angeles, California, on September 23, 1969
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction , The Issue
Simon Levi Company, Ltd , herein called Levi, was a
wholesale liquor distributor at Carson, California, as of
June 1, 1968. On or about July 1, 1968, Levi purchased
all the outstanding shares of stock in Sterling Liquor
Distributors, Inc., herein called Sterling, also a wholesale
liquor distributor and then located in Culver City,
California
From that date through April I, 1969, Sterling
continued as a separate entity at Culver City. On April 1,
Levi closed the Culver City facility and consolidated the
warehouse and delivery operations of the latter with its
own warehouse and delivery operations at Carson. While
Sterling continued a separate sales and order department
at Carson, there is now but one warehouse and a single
fleet of trucks which bear the emblem "SL "
181 NLRB No. 124
SIMON LEVI CO., LTD.
Levi maintained, at Carson one seniority list for drivers
and another for warehousemen These employees have
been respectively covered by multiemployer and
multiunion contracts to which Levi and Respondent
Union, Local No 572, have been parties. Prior to the
take over, the drivers at Sterling had been represented by
Local 848 and the warehouse employees by Local 595
From July l through December 31, 1968, the Sterling
contracts and seniority lists continued without change It
appears that on or about January 1, 1969, the drivers and
warehouse employees at Sterling were placed on the Levi
payroll
On April I, 1969, the Culver City facility was closed
and the respective seniority lists for drivers and
warehousemen at Culver City and Carson were combined
by "endtailing," viz, the Culver City employees were
placed at the bottom of the appropriate list of the
employees already at Carson Stated otherwise, they were
treated as junior to existing Levi employees. Respondent
Union has since been the representative of the two
consolidated groups at Carson
As a consequence of this consolidation, a smaller work
force was needed Layoffs took place both as to drivers
and warehousemen and these fell upon the former Sterling
employees due to the "endtailing." Had there been
"dovetailing," i e , full recognition of consolidated
seniority, some of the layoffs would have fallen upon
existing Levi employees at Carson
On June 16, 1969, and after the filing of the first
charge, Respondent Employer unilaterally "dovetailed"
the two seniority lists and offered employment to all
permanent Sterling employees. Respondent Union filed a
grievance, alleging that this "dovetailing" flew in the face
of their current contract. This was submitted to
arbitration and the arbitrator ruled that Respondent
Union was to prevail.
In contrast to this "endtailing," the General Counsel
relies upon the following history at Levi. Prior to June 1,
1968, Levi maintained its present place of business at Los
Angeles with the drivers represented by Local 848 and the
warehousemen by Local 595. Levi also operated a plant at
Long Beach, California where both drivers and
warehousemen were represented by Respondent Union
Thus, there were four separate seniority lists as of that
date.
At that time, Levi combined these two facilities into a
new facility at Carson and substantially all employees at
both installations were transferred to Carson. The
problem then also was whether the seniority lists would be
"dovetailed" or "endtailed " After discussion, Respondent
Union agreed to a "dovetailing" procedure The General
Counsel relies herein upon the fact that Local 572 took a
contrasting position in favor of "endtailing" when Levi
later bought out Sterling
The present issue then is whether the reduction in
seniority on April 1, 1969, of a named group of Sterling
employees and the layoff of some resulted from
membership in the wrong labor organizations, as urged by
the General Counsel, or whether, as urged by
Respondents, it resulted from a difficult decision,
non-discriminatory in nature, which was predicated upon a
bona fide attempt to resolve a problem frequently arising
from business mergers.
B The Arbitration Award
827
Respondents have argued that the Board should defer
to the arbitrator's decision of August 29, 1969, where he
relied upon language in the current contract described as
the "new locations" clause. He interpreted this as
requiring preference for existing employees at Carson over
employees coming to Carson from Culver City, i e.,
"endtailing " He also decided that Respondent Employer
had violated the contract by changing to a dovetailing
procedure on June 16, 1969, 1e, merging seniority, and
that employees who had been adversely affected as a
result of the dovetailing should be made whole for lost
wages.
As will appear, I find merit in the position of
Respondents, in essence agreeing with the result of the
arbitrator, although I reach it via a different route. As is
apparent, the issue herein is rather whether on a
preponderance of the evidence the General Counsel is
correct that Respondents endtailed on April 1, 1969, for
discriminatory reasons'
C The Evidence
The testimony of J B. Jacobs, president of both
Respondents, amply discloses that he was placed in the
middle of competing jurisdictional claims. A number of
meetings were held in March 1969 at the office of Joint
Council of Teamsters No. 42. Present were Paul Blinco of
the Joint Council, Jacobs, Secretary-Treasurer Jack Cox
of Respondent Union Local No 572, Bill Schwimmer of
Local 848; and Buford Von Bulow of Local 595. The last
two represented groups of Sterling employees and argued
for dovetailing in the impending merger Cox strongly
argued for endtailing, citing the language of the contract
applicable to Carson.
Jacobs announced that he had no preference, urging the
affected labor organizations to arrive at a decision. Blinco
apparently took no public position, although later in the
day he privately told Jacobs, according to the latter's
uncontroverted testimony, that since Respondent
Employer was in the territory of Local 572 it might be
best to recognize the position of Cox Sterling
representatives brought up the prior consolidation of the
Los Angeles and Long Beach facilities of Levi at Carson
where there had been dovetailing Cox proceeded to
distinguish this on the basis that in the earlier situation a
company had moved within its own area whereas the
present situation resulted from the introduction of another
company into the jurisdiction of Levi
Jacobs was substantially corroborated by Cox. He
informed Jacobs that the contract language as to new
locations required endtailing.1 Cox also testified that he
was asked if he would be willing to arbitrate an
interpretation of the new locations clause He agreed to
such arbitration with labor organizations but no employer
participation; this was rejected by the representatives of
the two Sterling locals.' I see nothing here to reflect
The General Counsel had previously refused a request to defer to the
arbitrator's award on the ground that although affected Sterling employees
had been notified of the arbitration, they did not actively participate
therein or agree to be bound by the award The record discloses that the
charging party in the CA case, Ganley, an erstwhile Sterling employee, did
attend the arbitration solely as a spectator
'Without interpreting the contract, it does treat with the allocation of
seniority at new locations or branches
'Schwimmer did not testify herein Von Bulow agreed that in June Cox
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hostility or animosity to Sterling employees as such based
upon their choice of a labor organization. There is present
rather, on the position most favorable to the General
Counsel, a colorable claim by Respondent Union to
seniority on jobs predicated upon contract language
treating with this issue. See Transport Motor Express
Inc, 162 NLRB 1023
Stated otherwise, whether the rationale of the arbitrator
was correct or not, I distinguish this from a case where
one group is treated adversely for patently unjust reasons
or without any ostensible or rational basis for such action,
thus warranting an inference of a motive based upon
unlawful considerations. See Teamsters Freight Local No
480 (Hilton D Wall), 167 NLRB No 135 and Woodlawn
Farm Dairy, 162 NLRB 48
The General Counsel relies herein upon certain
testimony by Charging Party Paul Ganley, a driver for
Sterling. The latter testified that in August or September
of 1968 the Sterling employees were introduced to Jacobs
as their new employer. He assured them that they would
be "integrated," that the possibility that anyone would
lose his job was remote and that if this happened there
would be 6 weeks' notice Jacobs stated that it was only
fair to integrate them and recognize their years of service
Jacobs also spoke to them again in October or near
Christmas, but Ganley provided no details
Jacobs testified that there was no problem with the
office clericals or sales force at Sterling. The former did
not desire to make the physical move and all salesmen
were retained; indeed, some were added Toward the end
of 1968, Jacobs met with Sterling warehousemen on a
Monday morning; he did not place drivers as present
Several Sterling personnel had quit and he feared a
shortage of help for the Christmas season He assured
them that the move would not be made until early 1969,
that they would have jobs through the Christmas season
and that he would attempt to give them advance notice of
any termination. He was asked about seniority and replied
that there had been so much difficulty with the Los
Angeles-Long Beach merger that he would not "hazard a
guess" because it was not "my decision to make "
Speaking generally, he probably stated that the decision
was one to be made by the involved labor organizations.
Ganley further testified that Jacobs did not say that the
question of integration was up in the air and repeated that
Jacobs did say there would be integration. As noted, the
testimony of Jacobs is silent as to any reference to
integration; he referred only to seniority.
On March 31, 1969, all Sterling employees received
letters that they were being terminated that day due to
lack of work. Some of them, according to Ganley, went to
Carson on the following day and sought work from
Superintendent Tony Circo; this was the group not put to
work at Carson. Circo gave them applications, telling
them that they would be called if needed.
According to Ganley, he spoke with Business
Representative Neal Shores of Respondent Union who
was on the scene. Shores repeated that they would be
called if needed and that "our Union would take care of
the work force with members of our local " Ganley went
to his car and showed Shores a contract, contending that
the language as to new locations supported dovetailing.
Shores responded that he interpreted the contract
otherwise.
stressed the contract language in support of endtailing , this occurring after
the merger had been made, and with only union representatives present
He admittedly rejected the arbitration proposal by Cox
Shores in turn testified that Ganley and a small group
approached him on this occasion and asked about their
status. He explained that most would be called in to work
shortly based upon present seniority He explained that
their seniority would be endtailed with respect to bidding
on vacations, layoffs, and recalls, but that Respondent
Employer would credit their total years of service as to
sick leave and length of vacations This met with
disapproval and Ganley attempted to prove his point by
showing Shores the contract Shores explained that this
was an older contract and, producing the current contract,
went over the new locations clause with him Shores
invited the group to contact Respondent Union for jobs
Only one man did so; a job was found for him in three
days but he had already obtained other work
Both Jacobs and Shores impressed me as fair and
forthright witnesses. Although interested parties, they did
not attempt to augment their testimony, presenting it in a
straightforward and concise manner Ganley, on the other
hand, repeatedly attempted to embellish his testimony in a
manner favorable to his side of the case.'
The General Counsel has argued that the testimony of
Jacobs is illogical and that, in order to maintain the
employee force, he assured the Sterling employees of
dovetailing. On the other hand, on the version of Jacobs,
he assured them that they would not be terminated during
the Christmas season, hardly an entertaining prospect,
because any move was some months away 1 ,see nothing
illogical about this; on his version he gave them some
assurance of temporary safety rather than the much
broader insurance policy attributed to him by Ganley I
credit the testimony of Jacobs and Shores.
D. Analysis and Conclusions
To sum up, the General Counsel has relied upon alleged
expressions of animosity to employees of Sterling who
belonged to the other two labor organizations, this has not
stood up. The fact that Respondent Union went along
with dovetailing when Levi previously merged its two
installations into a new one at Carson does not establish
that Respondent Union was discriminatorily motivated in
the instant dispute Obviously, any labor organization is
interested in protecting its members; but the earlier
agreement on dovetailing at Carson is equally consistent
with the view that Respondent Union went one way when
the merits so dictated and, another, when the merits were
contrary This is distinguishable and does not therefore
constitute a departure from past practices
Finally, as indicated, the interpretation of the contract
by Respondent Union and agreed to by Respondent
Employer in favor of endtailing is not illogical and
basically so unjustified as to warrant an unfavorable
inference. Indeed, Cox was willing to arbitrate the dispute,
albeit on a union participation basis only. There is no
proof that Respondent Union and Respondent Employer
did not have a reasonable basis for their position herein
and the evidence does not preponderate that motivation
existed to penalize Sterling employees because they
belonged to the wrong labor organization or did not
belong to the correct one Schick v. N L R B, 409 F.2d
395 (C.A D.C).
Where a contract was amended to give enhanced
seniority to a particular group of employees, it was stated
"Inevitably, differences arise in the manner and degree to
'Although not a union official , he disclosed patent and animated support
for Sterling employees and hostility to Respondent Employer
SIMON LEVI CO., LTD. 829
which the terms of any negotiated agreement affect
individual employees and classes of employees. The mere
existence of such differences does not make them invalid
The complete satisfaction of all who are represented is
hardly to be expected. A wide range of reasonableness
must be allowed a statutory bargaining representative in
serving the union it represents, subject always to complete
good faith and honesty and purpose in the exercise of its
discretion." Ford Motor Co v. Huffman, 345 U S 330
The same court has also pointed out that a labor
organization must be free to take a position upon relevant
noncapricious and nonarbitrary considerations in disputes
between two sets of employees it represents because
"Conflict between employees represented by the same
union is a recurring fact To remove or gag the union in
these cases would surely weaken the collective bargaining
and grievance processes " Humphrey v Moore, 375 U.S.
335, 350.
In view of all the foregoing considerations, I find that
the evidence preponderates against the position of the
General Counsel See N L R B v. Whiting Milk Corp,
342 F 2d 8 (C A 1).
Distributors , Inc. are an employer whose operations affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Chauffeurs, Sales Drivers and Helpers Union, Local
No. 572; Food, Drug and Beverage Warehousemen and
Clerical Employees' Union, Local No. 595, and Wholesale
Deliver Drivers and Salesmen's Union, Local 848, all
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America are
labor organizations within the meaning of Section 2(5) of
the Act.
3. Respondent Employer and Respondent Union have
not respectively engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) and Section 8(b)(2)
and 1(A) of the Act.
RECOMMENDED ORDER
CONCLUSIONS OF LAW
I Simon Levi Company, Ltd. and Sterling Liquor
In view of the foregoing findings of fact and
conclusions of law, it is recommended that the complaint
be dismissed in its entirety