Jewel Tea Co. v. LOCAL UNIONS NOS. 189, 262, 320, 546, 547, 571, 638

• Decision Date: 22 March 1963
• Docket Number: No. 58 C 1415.,58 C 1415.
• Citation: 215 F. Supp. 839
• Parties: JEWEL TEA COMPANY, Inc., Plaintiff, v. LOCAL UNIONS NOS. 189, 262, 320, 546, 547, 571, 638, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

215 F. Supp. 839

JEWEL TEA COMPANY, Inc., Plaintiff, v. LOCAL UNIONS NOS. 189, 262, 320, 546, 547, 571, 638, AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO et al., Defendants.

No. 58 C 1415.

United States District Court N. D. Illinois, E. D.

March 22, 1963.

George B. Christensen, Fred H. Daugherty, Richard W. Austin, Winston, Strawn, Smith & Patterson, Chicago, Ill., for plaintiff.

Asher, Gubbins & Segall, Chicago, Ill., for defendant Locals 189, 262, 320, 546, 547, 571 and 638, Amalgamated Meat Cutters & Butcher Workmen.

Libit, Lindauer & Henry, Chicago, Ill., for Associated and Chas. H. Bromann.

Eardley & Ward, Chicago, Ill., for Local Unions Nos. 189, 262, 320, 546, 547 and 638 of Amalgamated Meat Cutters, etc.

LA BUY, District Judge.

Plaintiff Jewel Tea Company seeks a declaratory judgment, injunctive relief and treble damages under the anti-trust laws, charging that the defendant unions and the Associated Food Retailers of Greater Chicago, Inc., an association of independent retail stores, conspired to suppress competition among retail meat markets in the Chicago area by limiting the marketing hours for the sale of fresh meat. The sufficiency of the complaint was sustained by this court and affirmed by the Court of Appeals on an interlocutory appeal. (Jewel Tea Co. v. Local Unions, et al., 274 F.2d 217, (7th Cir., 1960.) The cause was remanded and tried by this court without a jury.

At the close of plaintiff's case this court allowed the motion to dismiss of defendants Bromann and Associated on the ground that there was no evidence showing that either or both of these defendants conspired with the defendant union in forcing the restrictive provision upon plaintiff. Since plaintiff sought relief from the defendant unions apart from the theory of conspiracy, the unions' motion to dismiss was denied. The court must now determine, on the basis of the entire record, whether the provision limiting marketing hours for the sale of fresh meat in the collective bargaining agreement between the defendant unions, plaintiff and other employers violated the anti-trust laws, and entitled plaintiff to the relief demanded.

This issue was not and could not have been previously determined by this court or by the Court of Appeals in the proceedings evaluating the pleadings. It was not possible at the pleading stage to determine whether the challenged provision was the means of effectuating a conspiracy, or was a part of the conditions of employment. In affirming the sufficiency of the complaint, the Court of Appeals predicated its decision in part on the proper assumption of the existence of the alleged conspiracy between the unions and non-labor groups, and in part on the necessity of a trial to ascertain whether the restraint was unreasonable. (274 F.2d 221, 222, 223.)

The adjudication of the issue now before the court necessitates a review of the purport, history and effect of the marketing hour restriction in the collective bargaining agreement. The uncontroverted evidence shows that the limitation upon market operating hours originated after the butchers strike of 1919 in opposition to the prevailing 81 hour, 7 day work week. The ensuing 1920 collective bargaining agreement governing Meat Cutters imposed limitations on hours of labor and upon marketing hours. It provided:

"Article 1 — Nine hours shall constitute the basic working day, hours shall be 8 A.M. to 6 P.M., excepting Saturdays and days preceding holidays beginning at 8 A.M. and quitting at 9 P.M., allowing 1 hour for dinner and one-half hour for supper. Employees must be dressed and ready for work at 8 A.M.

"Article 2—It is expressly understood that no customers will be served who come into the market after 6 P.M. and 9 P.M. on Saturdays and on days preceding holidays, that all customers in the shop at the closing hour be served, that all meats be properly taken care of and markets placed in a sanitary condition, such work not to be construed as overtime. Overtime to be limited to 1 hour every day and shall be performed behind locked doors.

"Article 3—There shall be no work on Sundays, Decoration Day, Fourth of July, Labor Day, Thanksgiving Day, Christmas Day or New Years Day." (Emphasis added.)

The hours established by the 1919 strike continued until 1937, when the Saturday work hours and marketing hours were reduced and set at 8:30 A.M. to 7 P.M. Further modifications of working hours and correlative marketing hours were made in 1941, 1945, 1946 and in 1947, when they were set at 9 A.M. to 6 P.M. Monday through Saturday, with marketing hours no later than 6 P.M. The hours thus established have continued to the present. These changes, taken from agreements of Local 546, were followed in the agreements of all the defendant unions, except Local 189, which executes a separate agreement to meet conditions peculiar to it.

From the inception of plaintiff's operation of meat markets in the Chicago area in 1933, it entered agreements with the defendant unions containing these marketing hour restrictions, which were identical to agreements made with other meat market employers in the Chicago area.

The current collective bargaining agreement includes a "Service Contract" applicable to service meat markets, and a "Self-Service Contract" applicable to self-service meat markets. This differentiation began in December 1952, on the advent of the self-service mode of vending meat in this area. These contracts recognize the union as the exclusive bargaining representative of all employees in the meat department who process, wrap, handle and sell frozen and fresh meats on the employer's premises. With minor exceptions, the contracts require that the work entailed in the preparation and sale of meat, including the replenishment of stock and cleaning of counters shall be performed exclusively by the meat department employees represented by defendant unions. Both contracts provide that 8 hours shall constitute the basic work day, which shall begin no earlier than 8 A.M. and end no later than 6 P.M. They provide also that "at the employer's discretion overtime at overtime rates may be worked after 8 hours in any one day and behind locked doors after 6 P.M." They further specify that "market operating hours shall be 9 A.M. to 6 P.M. Monday through Saturday," and that no customer shall be served who comes into the market before or after these hours. The contracts do authorize the sale after 6 P.M. of certain products other than fresh meat.

The collective bargaining agreement also provides that the unions agree not to enter into a contract with any other employer designating lower wages, or longer hours, or any more favorable conditions of employment.

Similar contract provisions, or with variants for a single night operation, are in operation in other metropolitan areas.

The record sets forth in detail the method of bargaining between the employer group and the union group, followed since 1941, and the negotiations relative to the 1957, 1959 and 1961 contracts. Each group formulates its position independently. The union's demands are based on a preliminary survey of members, who are consulted in the course of negotiation, and must ratify any agreement; and the employers meet in advance of negotiations to explore their objectives, and caucus periodically to determine their bargaining position.

On July 25, 1957, the defendant unions gave notice of their desire to negotiate the new contract. They presented their demands to the employer group on August 20. On August 9 plaintiff's principal negotiator, E. T. Vorbeck, and representatives of various chain stores formulated 6 employer demands for negotiations: night openings, female wrappers, automatic wrapping machines, flexible work day, right to pre-price off premises, and the right to sell fresh frozen meats. On August 30, Vorbeck apprised Carl H. Bromann, Secretary of Associated, who had acted as chairman for the entire employer group in 1950, of the demands of the chain stores and of the scheduled meeting with the unions on September 5. On that date the union representatives met and exchanged demands with the representatives of the employer group, including plaintiff, National Tea, Associated, Hillmans, High-Low, Krogers, A & P, Piggly Wiggly, Goldblatts, Wieboldts, Save-Way, Del Farm, Sure-Save and I.G.A. Substantially the same group of employers continued to meet with the unions through the 1957 negotiations.

It would serve no useful purpose and would unduly prolong this opinion to detail the proposals and counter-proposals made at the numerous meetings that followed. Suffice to note they indicated that the unions from the outset did not want night work; and that the employers' demand for night operating hours were intertwined with the extension of working hours and the "flexible day," which meant starting later and working nights, as well as with various wage premiums "to sell" night work.

Typical of the negotiations is the all-employer proposal of November 15, 1957, which stipulated for Friday, night operations, with a male employee on duty during marketing hours, and extended the work day on Friday between 8 A.M. and 9 P.M. Not only did Associated join in this proposal, but at a subcommittee meeting prior to its introduction Bromann personally requested R. Emmett Kelly, the union representative, to agree to night marketing operations.

The record also shows that plaintiff, who threatened to sue as a co-conspirator any employer who opposed night marketing operations, offered at the close of the 1957 negotiations to give up that demand if the unions would agree to female wrappers. No such alternative concession was made by National Tea Co. The union, however, refused to accept either night operations or female wrappers, and ratified a contract without those provisions, notwithstanding plaintiff's threatened litigation. Moreover, Local 546, by secret ballot, authorized a strike if...