The opinion of the court was delivered by: LEVET
This civil antitrust action originally named two other defendants, to wit, Sabrett Food Products Corp., and Superior Frankfurter, Inc. However, the action as against said defendants was severed by order made orally in open court on November 8, 1967. Subsequently, a consent decree as to each of said defendants was signed and entered on December 18, 1967. Olympia Provision & Baking Co., Inc. ("Olympia") defaulted upon call of the case for trial; said default was duly ordered on November 8, 1967 and at that time said defendant waived any further notice under Rule 55, F.R. Civ. P. (4, 5;
Court's Ex. 1) The case then proceeded to trial against said defaulting defendant Olympia and against the above-mentioned union (hereinafter designated as "Local 627").
The general nature of this action is described by plaintiff as follows:
"The Complaint, filed June 7, 1962, alleges that the defendants entered into a combination and conspiracy to restrain and monopolize interstate trade and commerce in violation of Sections 1 and 2 of the Sherman Act. The substantial terms of said combination and conspiracy were that, since at least 1949, the defendants and co-conspirators combined and conspired to fix and maintain prices, terms, and conditions of sale of frankfurters, to allocate customers and to boycott distributors not members of Local 627."
The case was tried before the court without a jury.
After hearing the testimony of the parties, examining the exhibits, the pleadings and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. Local 627 is a voluntary association with its principal office located at 27 Union Square, New York, N. Y. From 1949 to approximately 1960 it maintained offices at 799 Broadway, New York, N. Y. It is a labor organization duly chartered by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO.
2. The membership of Local 627 is composed, in part, of persons known as distributors, who are also known as agent-distributors and agent drivers. From 1956 through 1962, Local 627 had approximately 2,000 members. Membership included approximately 300 persons employed as drivers, approximately 1,300 persons employed as salesmen-drivers or salesmen-distributors, and approximately 350 distributors, of whom less than 30 bought and resold the products of Sabrett Food Products Corp., Olympia Provision & Baking Co., Inc. and Superior Frankfurter, Inc. (1470, 1475-1476; Pl. Ex. 243, p. 47)
3. The following distributors have been members of Local 627 during all or part of the period from 1949 to 1962: Charles Alfano, Gus Avezidas, Joe Banner, M. Berger, Jordan Feinberg, Seymour Feinstein, Benjamin Goodman, Franklin B. Goodman, Ben Grupper, George Harris, Louis Kantrowitz, Charles Katcher, Ed Kaufman, John Lexis, Frank Masset, Fred Miller, Louis Pagliuca, Rocco Pagnotta, James Papalexis, Gus Pappas, John Passas, James Rinbis, William Schlesinger. (30-31; Pl. Ex. 242)
4. Morris Horn has served as Business Manager of Local 627 continuously from 1940 to 1962, having been elected to this office by the membership of Local 627 every three years; in 1962, when the title of this office was changed to Secretary-Treasurer, he was elected as Secretary-Treasurer and has served as such since. (Pl. Ex. 243, p. 5; 561-566) Horn, from 1940, has served as the chief executive officer of Local 627. (565-566) Rudolph Block, from 1949 to 1957, Milton Hyman, from 1949 to approximately 1962, and Isidore Jaffe, from 1949 to approximately 1962, were officers, agents or employees of Local 627. Estelle Gilman was employed by Local 627 as Office Manager from 1948 through 1962. (637-638)
5. Local 627 has, since at least 1949, operated, through trustees appointed by it, a separate trust fund for welfare benefits for its members, known as the Provision Salesmen & Distributors Union, Local 627, Welfare Trust Fund ("Welfare Fund"). The Board of Trustees consists of nine members, almost all of whom are members of Local 627's Executive Board. (29, 641-643, 649-651)
6. By agreement with Local 627, Sabrett, Olympia and Superior made regular and continuous payments to this Welfare Fund until at least 1962. (29-30, 36, 609, 629-630, 632-645, 878, 880-881, 928-931, 1034-1035, 1057, 1061-1062; Pl. Ex. 243, pp. 42-43; Pl. Exs. 10, 11, 12)
7. Sabrett is a corporation organized and existing under the laws of the State of New Jersey and has its principal place of business in Jersey City, New Jersey. Sabrett, since 1949, has manufactured frankfurters in Jersey City, New Jersey, and also since 1949 has sold and distributed frankfurters in the State of New York, including the Southern District of New York.
8. Ferdinand Frankel was Vice-President of Sabrett from 1948 until approximately 1957. Julius Frankel has been an officer of Sabrett since approximately 1956. Gori L. Cafora was employed by Sabrett as Sales Manager from approximately 1944 to approximately 1964.
9. Superior is a corporation organized and existing under the laws of the State of New York and it had its principal place of business in the Bronx, New York. Superior, commencing at least in 1949, manufactured, sold and distributed frankfurters in the State of New York, including the Southern District of New York. Superior ceased to do business in about 1964, the corporation has been dissolved; its plant was demolished. (1094, 1095)
10. Harry Gilman was President of Superior since approximately 1949. Harry Staub was Secretary-Treasurer of Superior from 1947 until 1962.
11. Olympia is a corporation organized and existing under the laws of the State of New York, and, during the period from 1949 to approximately 1962, it had its principal place of business in the Bronx, New York. From 1949 to approximately 1962, Olympia manufactured, sold and distributed frankfurters and transacted business in the State of New York, including the Southern District of New York. Olympia is no longer under operation; it sold its plant to a division of Zion Foods about 1961 or 1962 and apparently has not since manufactured or sold frankfurters. (942-943)
12. Christ Papalexis was President of Olympia from 1946 to 1957. Gregory Papalexis was General Manager of Olympia from 1946 to 1957.
13. From 1949 to 1962, Sabrett, Olympia and Superior manufactured, sold and distributed frankfurters to house account customers which consisted primarily of refreshment stands, luncheonettes and street vendors and to distributors who resold such frankfurters to the same types of customers. (35, 44, 105-107, 180-181, 424, 426-427, 433, 541, 553, 555-556, 654-655, 659, 714, 717, 719, 793, 820-821, 853-857, 994-996, 1029-1031, 1038-1039, 1159-1161, 1168, 1206, 1210, 1213, 1216-1218, 1348-1358, 1384-1389; Pl. Ex. 261, pp. 6-14)
14. Sabrett, Olympia and Superior from 1949 until at least 1962 were engaged in interstate and foreign commerce in the manufacture, sale and distribution of frankfurters, and the amount of such commerce was substantial. (34, 82, 488, 543-544, 717-719, 739, 798, 847-850, 1026-1030, 1153, 1168, 1205-1219, 1348-1349)
15. Part of the frankfurters manufactured by Sabrett, Superior and Olympia were delivered in the metropolitan New York area by salesmen, also known as "house drivers." (853-857, 1032, 1212, 1213)
16. The Sabrett, Olympia and Superior salesmen delivered frankfurters by truck to customers or "stops" on their route - such customers being billed by their respective employer and known as "house accounts." The salesmen received as compensation a base salary and a percentage commission based on the gross selling price of the products delivered by them. (856-857, 980-981, 1032, 1191-1193)
17. Sabrett salesmen were charged out for the frankfurters they picked up daily at the Sabrett plant and were responsible for either the return of the merchandise or the moneys received from customers. Salesmen were not responsible for bad debts of the customers unless they had extended credit in disregard of specific instructions of their employer. (1160-1163, 1174-1175, 1181, 1188, 1368-1376)
18. During the years 1956 to 1962, Sabrett salesmen operated only in the State of New York, and they are members of the International Brotherhood of Teamsters. In New Jersey, frankfurters manufactured by Sabrett were distributed exclusively by non-union distributors. (1218-1222)
19. The Olympia and Superior salesmen were members of Local 802, International Brotherhood of Teamsters, and the terms and conditions of their employment were set forth in written collective bargaining agreements between Local 802 and their respective employer. (852-853, 1032, 1081)
20. With the exception of those non-union Sabrett distributors which operated in New Jersey, distributors for Sabrett, Olympia and Superior were members of Local 627. (922, 1031-1032, 1280-1281)
21. The distributors picked up frankfurters daily at the manufacturers' plants and, using their own or rented trucks, they delivered the frankfurters to customers on their routes. Frankfurters distributed in this manner were charged out daily, and the distributors were billed weekly ...