Kellogg’s Snack Co., 756 (2005)

Kellogg’s Snack Company and Local 560, International Brotherhood of Teamsters, AFL–CIO. Case 2–CA–36270

May 31, 2005

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On February 25, 2005, Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judgeÂ’s rulings, findings,1 and conclusions2 and to adopt the recommended Order as modified below.3

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, KelloggÂ’s Snack Company, Langhorne, Pennsylvania, its officers, agents, successors, and assigns shall take the action set forth in the Order as modified.

1. Â Substitute the following for paragraph 2(a).

   “(a) Furnish to the Union the information requested in the letters sent by the Union dated March 4, April 13, and April 27, 2004.”

2. Â Substitute the attached notice for that of the administrative law judge.

   APPENDIX

   Notice to Employees

   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 Federal labor law and has ordered us to post and obey this notice.

   FEDERAL LAW GIVES YOU THE RIGHT TO

   Form, join, or assist a union

   Choose representatives to bargain with us on your behalf

   Act together with other employees for your benefit and protection

   Choose not to engage in any of these protected activities.

   We will not do anything that interferes with these rights. More particularly,

   We will not refuse to furnish relevant information to Local 560, International Brotherhood of Teamsters, AFL–CIO in connection with a grievance filed on February 12, 2003.

   We will not in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.

   We will furnish to the Union the information requested in the letters sent by the Union dated March 4, April 13, and April 27, 2004.

   Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â KelloggÂ’s Snack Company

   Dharma Wilson, Esq., for the General Counsel.

   Irving L. Hurwitz, Esq., for the Respondent.

   Paul A. Montalbano, Esq., for the Union.

   DECISION

   Statement of the Case

   Raymond P. Green, Administrative Law Judge. I heard this case in New York, New York, on November 15, 2004. The charge was filed on May 21, 2004, and the complaint was issued against the Respondent on August 27, 2004.1  In substance, the complaint alleges that since on or about February 11, 2004, the Respondent has failed to furnish to the Union certain information, to wit:

   (a) Bills of lading from certain named carriers; and

   (b) Invoices identifying the shipper, the name of the product, and the amount of the product and the date of delivery relating to certain named carriers.

   On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed, I make the following

   Findings of Fact

   i. jurisdiction

   The parties stipulated that the Respondent, a corporation, is engaged in the manufacture and distribution of food products and that annually, it purchases goods valued in excess of $50,000 that are delivered directly to its New York facilities from outside the State of New York. I therefore conclude that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties also agree and I find that Local 560, International Brotherhood of Teamsters, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act.

   ii. alleged unfair labor practices

   The Respondent is engaged in the manufacture and sale of prepared foods such as cookies and crackers. It and the Union have had a collective-bargaining relationship for at least 20 to 25 years. In this regard, although the Company has multiple facilities nationwide, Local 560 represents the drivers and warehousemen at two distribution centers in New York State. One is in Orangeburg, New York, and the other is in Long Island, New York.2

   The most recent collective-bargaining agreements covering these two facilities (each is covered by a separate but largely identical agreement), ran from June 12, 2001 to June 12, 2004. Bargaining for new contracts began sometime in June 2001 and no new contracts have been reached.

   The products that are handled at the two distribution centers are food items such as cookies and crackers that are baked at various facilities in the United States such as Macon, Georgia, etc. The goods are delivered from the manufacturing facilities to distribution centers which service specified geographic areas and are then delivered to customers, such as large supermarkets, from these centers. The two centers involved in the present case service New York City, Long Island, and New Jersey. The employees who handle the goods at the centers are warehousemen and the drivers who deliver the goods to customers are drivers. Local 560 represents both of these categories of employees.

   There are, however, a category of smaller retailers who indirectly purchase the Respondent’s goods such as grocery stores, bodegas, etc. And as to these, the Respondent has decided that it would not be efficient to deliver its products directly to them from its distribution centers by its own drivers. Accordingly, at some point in the past, the Respondent arranged to sell its products to various independent companies (wholesalers), who in turn sold and delivered the goods to these kinds of retailers. Examples of these kinds of companies are W.B. Brown, Condel, and Premiere Snacks.

   One of the questions in this case is how do cookies get to bodegas and grocery stores?

   The parties agree that pursuant to the contract, if the goods come into either distribution center they must be handled by and delivered by Local 560 members. That is, the cookies are driven from a center to the wholesaler in a truck owned by the Respondent and driven by a driver employed by the Respondent. In this regard, the collective-bargaining agreements at Article 16 state:

   The Employer agrees to respect the jurisdictional rules of the Union and shall not direct or permit their employees or persons other than the employees in the bargaining unit here involved to perform work which is recognized as the work of the employees in said unit. Deliveries shall not be made by sales employees except in cases of extreme emergencies. . . .

   At various times since about 1996, there have been occasions when the Union has suspected that wholesalers such as W.B. Brown have been allowed to use their trucks and drivers to pick up goods at the distribution centers. These situations have generated grievances, settlements, and side letters. In a memorandum agreement dated June 11, 1998, the parties agreed that:

   It is understood that the deliveries to non-DSD customers will be made by the bargaining unit unless under unusual circumstances beyond the control of Keebler Foods Company. Venders such as Condel or D.W. Brown may make an occasional pickup at the Keebler facilities. It is understood that prior agreements not in existence regarding these vendors remain in force. In these limited instances there shall be no violation of the CBA for customer pickups due to these limited circumstances.

   On June 12, 2001, in connection with the most recent collective-bargaining agreement, the parties signed a letter agreement which essentially prohibited wholesalers from making pickups at the Long Island distribution center. This stated:

   The Company agrees that all deliveries to step-van sales mini warehouses in the Long Island Distribution service area will be delivered by bargaining unit employees and step-van sales employees will not be permitted to pick up product from the Distribution Center.

   Nevertheless, the Company asserts that historically, this is not the only way that the cookies go to the smaller stores. It asserts that for a long time, even before 1996, there were occasions when cookies were delivered directly to the wholesalers from the bakeries by way of common carrier. It asserts that in those circumstances, the cookies and crackers never went into the distribution centers at all and therefore were never handled by or driven by Local 560 employees. As to this contention, there is probably some dispute between the parties, either as to the past practice or the extent thereof. Luckily, I am not the person called upon to decide that...