Retail Clerks Union, Etc.

National Labor Relations Board - Board Decisions

Nov 9, 1965

155 N.L.R.B. 656 (N.L.R.B. 1965)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OP LAW
1. Respondent, American Oil Company, is, and at all times material herein has
been, engaged in commerce and operations affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union, Drivers and Employees of Petroleum Industry, Local Union 273,
a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is, and at all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times material herein, the Union has been the exclusive representative for
the purposes of collective bargaining of all the employees in the following appropriate
unit within the meaning of Section 9(a) and (b) of the Act:
Working foremen auto mechanic, working foremen-yard-warehouse, mechan-
ics-auto first class, mechanics first class and plant maintenance, truckdrivers,.
warehousemen, yardmen, washer-greasers, plant clerks, mechanics first-class,.
mechanics second class, and transport trailer drivers, but excluding guards, pro-
fessional employees and supervisors as defined in the Act, and excluding all other
employees.
4. Respondent has not engaged in unfair labor practices within the meaning of Sec-
tion 8(a) (5) or (1) of the Act, by the conduct alleged in the complaint, as amended..
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is recom-
mended that the complaint, as amended, be dismissed in its entirety.
Retail Clerks Union Local No. 1428 and Jones and Jones, Inc.,.
Charging Party and Food Employer's Council, Inc., Party to.
the Contract
Retail Clerks Union Local No. 137; Retail Clerks Union Local
No. 324; Retail Clerks Union Local No. 770; Retail Clerks
Union Local No. 899; Retail Clerks Union Local No. 905; Retail.
Clerks Union Local No. 1167; Retail Clerks Union Local No..
1222; Retail Clerks Union Local No. 1428; Retail Clerks Union
Local No. 1442; and Food Employer's Council, Inc.; ABC Mar-
kets; Alexander's Markets; Alpha Beta Acme Stores; Arrow
Market; Arv6's Markets; Atlantic Farms; Beach's Groceries;
Better Foods; Big Bear; Big Saver Foods; Boys Markets;.
Bradshaw, Inc.; Brooklyn & Ford; Burghardt's Markets;
Carl's Ranch Markets; Chapman Park Market; Crawford
Stores; Crawford's Modern Village; Daylite Super Markets;
Dow's Markets ; Be Simone Market; Esko, Inc.; El Rancho
Markets; Max Fine & Company; Food Giant; Food Palace
Market; Foods Co.; Fox Markets; Gateway Markets; Gordon's
Market; Great A & P Tea Co.; Greater Central Market; Green
Frog Market; Growers Ranch Market; Hollywood Ranch Mar-
ket; Hughes Markets; JonSon's Markets; Jurgensen's Grocery;
King Cole-Los Feliz; Dory's Markets; Land's Markets; La
Perla Market; Leo's Market; Lucky Stores, Inc.; Market Bas-
ket; Mayflower Markets; Mednick Bros. Markets; Menlo,
155 NLRB No. 74.
RETAIL CLERKS UNION, ETC. 657
Farms; Penny Food Market; Piggly Wiggly Markets ; Raisin
Enterprises ; Ralphs Grocery ; Richard 's Lido Market ; Roberts.
Market ; Safeway Stores , Inc.; Sage's ; Santa Cruz Markets;
Schaub 's Inc.; Serber 's Foods; Shoppers Markets ; Spector's.
Market ; Stater Bros. Markets; Sun Val Market ; Three Crown
Product; Thriftimart , Inc.; Thrif town Market; Valley Stores;
Vincent 's Super Market ; Von's Grocery and Joint Council of
Teamsters No. 42, Charging Party
Retail Clerks Union Local No. 137; Retail Clerks Union Local
No. 324; Retail Clerks Union Local No. 770; Retail Clerks
Union Local No. 899; Retail Clerks Union Local No. 905; Retail
Clerks Union Local No. 1167; Retail Clerks Union Local No.
1222; Retail Clerks Union Local No. 1428; Retail Clerks Union
Local No. 1442 and American Research Merchandising Insti-
tute ; United States Servateria Corp .; Wesco Merchandise Co.,
Charging Parties and Food Employer 's Council , Inc., Party to
the Contract
Retail Clerks Union Local No. 137; Retail Clerks Union Local
No. 324; Retail Clerks Union Local No. 770 ; Retail Clerks
Union Local No. 899; Retail Clerks Union Local No. 905 ; Retail"
Clerks Union Local No. 1167; Retail Clerks Union Local No.
1222; Retail Clerks Union Local No. 1428; Retail Clerks Union
Local No. 1442 and Charm Craft Publishers of Los Angeles,_
Charging Party and Food Employer's Council, Inc., Party to
the Contract . Cases Nos. 21-CE-37, 21-CE-39, 21-CE-40, and.
21-CE-49. November 9,1965
DECISION AND ORDER
On July 22, 1965, Trial Examiner Martin S. Bennett issued his-
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents filed exceptions
to the Trial Examiner's Decision and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Zagoria].
'The Respondent Unions requested oral argument . These requests are hereby denied,
because the record, exceptions , and briefs adequately present the issues and positions of-
the parties.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.2 The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
Since 1941 Respondent Employers, who are and have been repre-
sented by Respondent Food Employer's Council, have recognized and
bargained on a multiemployer basis with some if not all of Respondent
Unions as the representative of the food, grocery, and miscellaneous
clerks employed by Respondent Employers in their retail stores. For
many years, outside suppliers or rack jobbers, who deal in merchan-
dise which is prepackaged and premarked, have utilized their own
employees, called driver-salesmen, to perform shelving and display
operations within the stores in connection with merchandise consigned
to Respondent Employers for resale. Throughout this period a con-
troversy has existed between Respondent Unions, the rack jobbers, and
the Teamsters Union, which in many instances represents the driver-
salesmen employed by the rack jobbers, concerning the representation
and/or the right to perform the in-store rack jobber services .3 In fur-
therance of their claims, Respondent Unions have succeeded in nego-
tiating provisions in their various collective-bargaining agreements,
including that executed in 1964, aimed at bringing the longstanding
dispute to a conclusion favorable to them. The instant complaint
deals with the agreement negotiated between Respondents in 1964, and
alleges that article I thereof, set forth in the Trial Examiner's Deci-
sion, is violative of Section 8 (e).
Subject to certain exceptions, not relevant herein, article I defines
the bargaining unit as covering all employees, including those em-
ployed by the rack jobbers, who perform work within the retail outlets
owned or operated by signatory employers. Signatory employers are
required to exercise full control over the terms and conditions of
employment of employees, including those of the rack jobbers, engaged
in such work, and to execute a "concessionaire agreement" with the
2 We find merit in the exception filed by several of the Respondent Unions to the Trial
Examiner's denial of the motion to sever and dismiss the charge filed by Jones and Jones,
Inc , in Case No. 21-CE-37 As the matters alleged in said charge were not alleged in the
complaint , nor found to constitute violations of the Act by the Trial Examiner , Case No.
21-CE-37 is hereby severed from this consolidated proceeding and dismissed
3 The extensive litigation that has grown out of this dispute is evidenced by the fol-
lowing cases • Retail Clerks International Association, AFL-CIO, and Retail Clerks Union,
Local 770 ( Food Employers Council ), 125 NLRB 984 ; Retail Clerks International Associ-
ation, and Retail Clerks , Local 770 , etc (Food Employers Council ), 127 NLRB 1522,
remanded 296 F. 2d 368 (C.A D C ), Supplemental Decision of the Board reported at 145
NLRB 307, as amended by order dated March 11 , 1964; Retail Clerks Union Local 770,
et al. (The Frito Company), 138 NLRB 244 , remanded on procedural grounds, 330 P. 2d
458 (C.A.9).
RETAIL CLERKS UNION, ETC. 659
rack jobber, which obligates the latter to abide by the wages, hours,
and conditions of work set forth in the Respondents' agreement.
Finally, article I prohibits the subcontracting of any such work.
The complaint was issued on the theory that article I violates Sec-
tion 8 (e) by requiring the rack jobbers and others doing business with
the Respondent Employers, as a condition for continued performance
within the stores , to become members of the bargaining unit repre-
sented by Respondent Unions and to execute the concessionaire agree-
ment. The Trial Examiner found the violation on grounds, inter acid,
that the provision in issue was a "union-signatory clause." Respond-
ents except, asserting that article I is outside the ambit of Section 8 (e)
since the article merely "integrates" the rack jobbers into the estab-
lished bargaining unit and, in doing so, merely defines and protects the
work of unit employees. For the reasons stated below, we find no
merit in Respondents' position.
Expansion of an established bargaining unit to include third per-
sons doing business with contracting employers, in the fashion con-
templated by article I, cannot be condoned as lawful primary action.
The Employers engaged in rack jobbing who are affected by article I
could not, without their assent, be included in Respondents' bargaining
unit under any standard which the Board recognizes in defining appro-
priate units 4 Indeed, in the case of the rack jobbers who bargain with
the Teamsters Union as representative of the driver-salesmen , inclu-
sion in Respondents' unit would contravene clear congressional policy
manifested in Section 8 (a) (1), (2), and (5) of the Act .5 Neverthe-
less, the intent of article I, as evidenced by the plain terms thereof, is
to force the rack jobbers, by threat of a boycott, into that unit. Thus,
by virtue of article I, the rack jobbers are prohibited from performing
their services within the stores unless they "integrate" into Respond-
ents ' unit by the dual acts of (1) relinquishing control to Respondent
Employers of their driver-salesmen so engaged, and (2) committing
themselves, through execution of the so-called concessionaire agree-
ment, to observe the Respondents' agreement for such employees.
It is now well settled that, while provisions of collective-bargaining
agreements merely allocating fairly claimable work to unit employees
are lawful, agreements which go beyond work protection and impose a
boycott on third parties who do not recognize or have a contract with
4As the Board has held , "the inclusion of a particular employer in a multiemployer
unit is based upon mutual consent of the parties to such inclusion , as evidenced either by
a bargaining history for such group of employers in a single unit , or by the express agree-
ment of the parties to the inclusion of the individual employers ." Local Union 4 9 of the
Sheet Metal Workers Association (New Mexico Sheet Metal Contractors Association), 122
NLRB 1192, 1194.
5 See , e.g., Dancker t Sellew, Inc., 140 NLRB 824, 825-826 enfd. 330 F. 2d 46 (C.A. 2) ;
Burlington Roadbuilders, Inc, 149 NLRB 791 ; Tower Iron Works , Inc., 150 NLRB 298;
Mary Chess , Inc., et al. , 145 NLRB 1200.
212-809-66-vol. 155-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contracting union are secondary and within Section 8 (e).6 As the
plain objective of article I is to compel the rack jobbers, as a condition
for continued performance of their in-store services, to take steps cul-
minating in both recognition of Respondent Unions and commitment
to Respondents' agreement, that provision extends beyond mere preser-
vation of work or standards bargained for the principle unit, and bears
all the vices of the so-called union signatory clauses which have been
uniformly struck down as secondary and within the prohibitory terms
of Section 8 (e).7 In equating article I with such clauses, we deem it
unimportant that that provision does not, in terms, restrict the Re-
spondent Employers' business dealings to persons who have signed
Respondents' agreement; for, it being clear that the rack jobbers are
prohibited from performing services in the stores unless they recognize
and become bound to the observance of that agreement, the secondary
thrust of article I is identical to that involved in the typical "union
signatory clause." For these reasons, we conclude that the unit inte-
gration provisions of article I exceed the legitimate purpose of protect-
ing the integrity of the principle work unit and find that they are
"aimed really at the [Respondent Unions'] differences with another
employer [rack jobbers]." 8
Also without merit is Respondents' contention that Section 8(e)
does not apply because article I involves a partial, rather than total,
cessation of business with the rack jobbers. It is well settled that "less
than a total cessation of an existing business relationship" falls within
the intended meaning of "cease doing business." 9 Rack jobbers who
6 N.L.R B. v. Joint Council of Teamsters No. 38 and Arden Farms Co., et al. (California
Assn. of Employers ), 338 F. 2d 23, 28-29 (C.A. 9) ; Orange Belt District Council of
Painters No. 48, etc ( Calhoun Drywall Co) v. N.L.R B., 328 F. 2d 534 (C.A.D.C.),
wherein the court at 538, established the following guideline for determining the primary
or secondary nature of subcontracting clauses
We have phrased the test as whether the clauses are germane to the economic in-
tegrity of the principal work unit ; and seek to protect and preserve the work and
standard [ the union ] has bargained for, or instead extend beyond the [contracting]
employer and are aimed really at the union 's difference with another employer.
7 Truck Drivers Union, Local No. 413, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen t Helpers of America, et at. ( Brown Transport Corp.) v. N.L.R.B.,
334 F. 2d 539 , 548 (CAD C.) ; Heat and Highway Drivers, Dockmen, Helpers and Mis-
cellaneous Truck Terminal Employees, Local Union No. 710, Teamsters ( Wilson & Co.)
v. N.L R B., 335 F. 2d 70'9, 717 (C.A.D.C.) ; N.L.R.B. v. Joint Council of Teamsters No.
38 and Arden Farms Co. , at at., supra, 28-29; District No. 9, International Association
of Machinists , AFL-CIO (Greater St. Louis Automotive Trimmers & Upholsterers Assn.)
v. N.L.R.B., 315 F. 2d 33 (C.A D.C.) ; Bakery Wagon Drivers and Salesmen , Local Union
No. 484 ( Continental Baking Co . and Sunrise Transportation ) v. N.L.R.B., 321 F. 2d 353,
357 (C.A.D.C ).
8 Orange Belt District Council of Painters No. 48, AFL-CIO , et at. ( Calhoun Drywall
Co.) v N L R.B., supra, 538.
6 See , e g., Local 3, International Brotherhood of Electrical Workers , AFL-CIO (New
York Telephone Company), 140 NLRB 729, 730, enfd. 325 F. 2d 561 (C.A. 2) ; N.L.R.B. v.
Milk _ Wagon Drivers' Union, Local 753, International Brotherhood of Teamsters, Chauf-
feurs, , Warehousemen & Helpers of America, etc. (Pure Milk Association ), 335 F. 2d 326
(C A. 7) ; of N.L.R.B v. Joint Council of Teamsters No. 38 and Arden Farms Co., supra,
26-27
RETAIL CLERKS UNION, ETC. 661
fail to acquiesce to article I will be precluded thereby from providing
the in-store services to Respondent Employers they have furnished
through years of litigation and conflict. Contrary to Respondents, we
are satisfied that the disruption in the established method of operation
contemplated by article I places that provision within the interdict of
Section 8(e).
Accordingly, we find, in agreement with the Trial Examiner,10 that
Respondent Unions and Respondent Employers have violated Section
8 (e) by agreeing to, maintaining, and giving effect to article I of their
1964 collective-bargaining agreement.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Recommended
Order of the Trial Examiner and orders that the Respondents, Retail
Clerks, Local Union No. 137, Bakersfield; No. 324, Buena Park; No.
770, Hollywood; No. 899, Santa Barbara; No. 905, Harbor City; No.
1167, Colton; No. 1222, San Diego; No. 1428, Pomona; and No. 1442,
Santa Monica; all in California; their officers, agents, and representa-
tives; and Food Employer's Council, Inc., Los Angeles; and Food
Employer's Council, Inc., members : A.B.C. Markets, Los Angeles;
Alexander's Markets, Glendale; Alpha Beta Acme Stores, La Habra;
Arrow Market, Hollywood; Arvo's Markets, Bell; Atlantic Farms,
Long Beach; Beach's Groceries, Los Angeles; Better Foods, Los
Angeles; Big Bear, El Cajon; Big Saver Foods, Los Angeles; Boys
Markets, Pasadena; Bradshaw, Inc., San Diego; Brooklyn & Ford, Los
Angeles; Burghardt's Markets, Van Nuys; Carl's Ranch Markets, Los
Angeles; Chapman Park Market, Los Angeles; Crawford Stores,
Alhambra; Crawford's Modern Village, El Monte; Daylite Super
Markets, Los Angeles; Dow's Markets, Long Beach; De Simone Mar-
ket, Redondo Beach; Esko, Inc., Whittier; El Rancho Markets, Arca-
dia; Max Fine & Company, Los Angeles; Food Giant, Santa Fe
Springs; Food Palace Market, Los Angeles; Foods Co., Torrance; Fox
Markets, Los Angeles ; Gateway Markets, Los Angeles ; Gordon's Mar-
ket, Hollywood; Great A & P Tea Co., Los Angeles; Greater Central
Market, Bellflower; Green Frog Market, Bakersfield; Growers Ranch
Market, Los Angeles; Hollywood Ranch Market, Hollywood; Hughes
Markets, Los Angeles; JonSon's Markets, Los Angeles; Jurgensen's
Grocery, Pasadena; King Cole-Los Feliz, Los Angeles; Kory's Mar-
'owe deem it unnecessary, however, to pass upon the Trial Examiner 's reasoning and
conclusion with respect to v. hether or not the rack jobbers services furnished within
the stores are fairly claimable by Respondent Unions . Article I is not attacked on that
ground, of Frito Company v. NL.RB., 330 F 2d 453 (C.A. 9). Moreover, even assuming,
without deciding, that the work may be described as fairly claimable, such claim may not
lawfully be implemented by a clause prohibiting subcontracting only with respect to non-
signatory companies , and hence , article I would still violate Section 8 ( e). Teavastcis,
Local 710 ( Wilson & Co.) v. N.L.R.B., supra, 717.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kets, Beverly Hills; Land's Markets, Los Angeles; La Perla Market,
Oxnard; Leo's Market, Los Angeles; Lucky Stores, Inc., Buena Park;
Market Basket, Los Angeles; Mayflower Markets, Monrovia; Mednick
Bros. Markets, South Gate; Menlo Farms, San Diego; Penny Food
Market, Inglewood; Piggly Wiggly Markets, Reseda; Raisin Enter-
prises, Beverly Hills; Ralphs Grocery, Los Angeles; Richard's Lido
Market, Newport Beach; Roberts Market, Sierra Madre; Safeway
Stores, Inc., Los Angeles; Sage's, San Bernardino; Santa Cruz Mar-
kets, Ventura; Schaub's Inc., City of Industry; Serber's Foods, Los
Angeles; Shoppers Markets, Los Angeles; Spector's Market, Burbank;
Stater Bros. Markets, Colton; Sun Val Market, Sun Valley; Three
Crown Produce, Los Angeles; Thriftimart, Inc., Los Angeles; Thrif-
town Market, Los Angeles; Valley Stores, North Hollywood ; Vincent's
Super Market, Bakersfield; and Von's Grocery, El Monte; all of Cali-
fornia; their 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
This matter was heard before Trial Examiner Martin S. Bennett at Los Angeles,
California, on various dates between January 11 and March 15, 1965. The consoli-
dated complaint 1 alleges that the nine named Respondent Unions, Retail Clerks
Union Locals Nos. 137, 324, 770, 899, 905, 1167, 1222, 1428, and 1442, and
Respondent Food Employer's Council in behalf of its members, 69 Respondent
Employers, had entered into a collective-bargaining agreement violative of Section
8(e) of the Act.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Food Employer's Council, Inc., is a nonprofit corporation composed of employer
members, including the 69 named Respondent Employers, most of whom are engaged
in the retail food market business in Southern California. Respondent Council, in
behalf of its members, including Respondent Employers, negotiates master collective-
bargaining agreements with labor organizations including Respondent Unions.
The employer members of Respondent Council annually enjoy a gross volume of
business in excess of -$500,000 and receive goods and products valued in excess of
$50,000 directly from points outside the State of California. As will appear, the
Board has asserted jurisdiction in a number of cases involving some of Respondents.
I find that the operations of Respondent Council and its members affect commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Each of Respondent Unions is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and background
This case is the latest round in a long line of cases which reflect the attempts by at
least some of Respondent Unions to achieve control over employees of outside sup-
pliers, known as rack jobbers, with whom they are not under contract, who visit and
'Issued August 25, 1964, and based upon charges filed April 10, in Case 21-CE-37;
May 7, in Cases 21-CE-39 and 21-CE-40, and June 24, 1964, in Case No. 21-CE-49. A
motion by various Respondents that the complaint based upon the charge filed by Jones
and Jones in Case 21-CE-37 be severed and dismissed is hereby denied.
RETAIL CLERKS UNION, ETC. 663
service retail food markets in Southern California. It appears inevitable that there
will be additional rounds. The vehicle utilized by Respondent Unions in this instance
involves a novel organizational device devised by their international union, viz, the
placement of these employees in the bargaining unit represented by Respondent
Unions despite their longstanding representation by Charging Party Teamsters, except
in the case of one employer whose employees are unorganized.
This past history is reflected in Board and court decisions involving alleged viola-
tions of various sections of the Act and well demonstrates an unbridled determination
by Respondent Unions to achieve this objective. Indeed, the most recent contractual
negotiations reveal that 2,000 to 3,000 members would have been added to the bar-
gaining unit represented by Respondent Unions by means of this contractual device.
As the respective contracts over the years have expired, various other contractual or
legal ploys were devised, the latest of which is the contract under attack herein for
the period from April 1, 1964, through March 31, 1969.
As for additional background, Respondent Employers and other employers repre-
sented by Respondent Council operate 2,500 to 3,000 food stores in Southern
California. Since 1941, these employers, represented by the Council, have nego-
tiated contracts with some if not all of Respondent Unions for a multiemployer
bargaining unit in 10 Southern California counties wherein these 9 Locals assert
jurisdiction. Some 40,000 to 45,000 employees are covered thereunder.2 These bar-
gaining units have included the employees of the market operators who basically
serve as food and grocery clerks within the four walls of the market.
This last contract for the 1964-1969 period for the first time attempted to and did
literally expand the unit to encompass employees of other employers, viz, the outside
suppliers or rack jobbers. The theory of the complaint is that compliance with this
contract would require the employers to "cease doing business" with the rack jobbers.
As for the outside suppliers or rack jobbers, they are distributors who came into
existence in the Los Angeles area in the late 1930's and early 1940's. The Board, in
a decision involving Respondent Local 770 and its International, described their mode
of operation. Retail Clerks International Association, AFL-CIO, and Retail Clerks
Union, Local 770, 125 NLRB 984 (1959). In that case, the present Respondent
Council, then resisting these efforts by Respondent Unions, filed a charge that Local
770 and its International had engaged in unfair labor practices within the meaning of
Section 8(b) (4) (D) of the Act. The Board noted that the charges reflected conduct
by Clerks to induce and encourage employees of the retail food markets to strike or
refuse to perform services with an object of forcing their employers to assign certain
display arrangement and servicing work, in essence the work under consideration
herein, to employees who are members of Clerks rather than to members of the
Teamsters.
The Board there pointed out in language which substantially, but not precisely,
still reflects the present picture that:
In recent years, the development of the self-service food market has been
marked by an expansion in the number and type of items which are displayed
and sold there. A centralized source of supply of nonfood items has been pro-
vided in the Los Angeles area, by distributors referred to as rack-jobbers or
suppliers who specialize in handling kitchenware, hardware, toys, health and
beauty aids, and paper products for distribution to the markets. These items
are often prepackaged and premarked by the rack-jobbers, and are displayed
on racks and gondolas which they furnish to their customer outlets. Because of
the great variety of items supplied, the rack-jobbers believe that they can be best
displayed by their own employees who are trained in their merchandising tech-
niques. This requires the rack-jobbers' employees, commonly known as driver-
salesmen, to deliver the items to the individual market, and to shelve them in a
particular area set aside by the market. Thereafter, they replenish, rotate, and
clean their stock, remove damaged articles and items which are not selling well,
and otherwise improve the appearance of their displays.
Many of the rack-jobbers, including United States Hardware and Wesco [also
charging parties herein], have bargaining agreements with the Teamsters cover-
ing the driver-salesmen. Some rack-jobbers bargain with the Clerks for the
individuals who do the shelving work in the stores' selling area, although appar-
ently in these cases, the items are first delivered by truck from the rack-jobbers'
warehouse to the store's backroom. It also appears that the employees of 'Some
of the specialty food and soft-drink distributors are not represented by any
labor organization.
Respondent Retail Clerks Union Local No 770 is the largest of these locals and its
executive secretary, Joseph DeSilva, appears to dominate and maintain substantial control
over the bargaining picture.
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the food markets took on new lines of nonfood items, the business of the
rack-jobbers also expanded. Since the driver-salesmen's duties in the selling
areas of the markets are no different from those of food market-clerks in shelv-
ing, displaying, and rotating food items, there has been a running controversy
between the Clerks and the markets over the driver-salesmen's impingement on
the claimed jurisdiction of the Clerks. Because of alleged interference by the
Clerks with their systems of distribution, United States Hardware [now named
United States Servateria Corp.], in 1949 and 1954, and Wesco in 1954, obtained
injunctions against the Clerks. These were not dissolved until April 1958 during
the pendency of this proceeding. Nor were Clerks' claims for all shelving work
directed solely against the employment of Teamsters members; also involved
were those distributors who employed nonunion driver salesmen, and "book
salesmen" who take orders and set up displays of their products.
The present record discloses that the instances where items are delivered or drop-
shipped to the back door or loading dock are the exception. In the instant case, the
only nonunion personnel involved are display personnel for Charm Craft who arrange
and display greeting cards. There is evidence that in the San Diego and Santa Barbara
areas Respondent Unions and Teamsters resolved their dispute in 1957, with the
result that this display work is handled by members of Clerks. Earlier attempts in
this direction in the Los Angeles area were abortive. In any event, the great bulk
of this work is performed by outside suppliers who are under contract with Teamsters.
Indeed, there are two outstanding Board certifications in favor of Teamsters, issued
January 13, 1960, covering the employees of Wesco and United States Servateria Corp.
There is substantial evidence that these outside suppliers favor the present system
because their specially trained employees can, through their experience, stimulate and
expand sales. Moreover, it is more efficient and less costly to have these trained
personnel deliver and service the merchandise in one visit, thus eliminating certain
packaging costs, breakage, and space or storage limitations in markets. In addition,
this merchandise is sold on a guaranteed sale basis; i.e., if it does not move, the rack
jobber either replaces it or credits it to the market operator. It appears that the
market operators also favor the existing system. No claim to the contrary has been
made by Respondent Council.
The previous contract between the parties covered the period from January 1, 1959,
through March 31, 1964. It provided, to part, in article I:
RECOGNITION OF THE UNION
A. BARGAINING UNIT.
1. The Union is hereby recognized as the sole collective bargaining agent for
all employees within the bargaining unit comprised of those classifications of
employees which constituted the Union's bargaining unit on January 1, 1955, or
on such other basis as may result from the Agreement dated December 12, 1955,
between the Retail Clerks International Association and the Amalgamated Meat
Cutters and Butcher Workmen of North America, or as may be defined by the
National Labor Relations Board.
2. The Union agrees that it will not make claim to any employees of present
concessionaires or sublessees who work in the present or future store or stores
of the Employer, unless the Union can show its majority representation of such
employees within an appropriate bargaining unit. In that event, the Union may
invoke Article XX of this Agreement.
B. WORK PERFORMED.
All work performed on the premises in the nature of work generally per-
formed by retail clerks shall only be performed by employees in the bargaining
unit as herein defined.
C. SUB-CONTRACTING OR ASSIGNMENT OF WORK.
1. The Employers shall not sub-contract any work ordinarily performed by
retail clerks in the stores or markets of the Employers, and, further, any future
work created by the Employer within the Employer's stores or markets which
would ordinarily be performed by retail clerks, shall be performed only by
members of the bargaining unit as herein set forth, except that such work may be
sub-contracted to an employer who is signatory to an Agreement with the Union.
2. The Employer agrees not to assign or contract with any other union or
person for work which is presently being performed by members of the bargain-
ing unit represented by the Union.
3. Any other work which is presently under specific contracts with the Team-
sters, Culinary Workers, and Building Service Employees Unions shall not be
RETAIL CLERKS UNION, ETC. 665
affected by this Agreement , except as to any change which may result from an
agreement of the unions involved and the signatory Union and upon presentation
to the Employer of bona fide proof thereof.3
Litigation concerning the contract previous to the 1954 contract is described in
Retail Clerks International Association and Retail Clerks Union Local 770, 127
NLRB 1522, remanded in part in Retail Clerks Union Local 770, etc., v. N.L.R.B.,
296 F. 2d 368 (C.A.D.C.). The Board entered a Supplemental Decision and Order
in 145 NLRB 307, as amended by another order on March 11, 1964, deleting certain
language from its decision.
It is clear from a consideration of the litigation and the testimony of the parties
that Respondent Unions adamantly seek control of these lobs; viz, the employees of
the rack jobbers or outside suppliers who service the gondola or rack by rotating
merchandise , removing soiled goods , introducing and removing seasonal merchandise
and cleaning the area, as well as doing all that the driver salesman deems necessary to
enhance the sales of his employer ' s products.
Respondent Unions attempted to achieve their objective in negotiations for the
1964 contract by rewriting article I and inserting the language under attack herein.
It is undisputed that the revised article I resulted from a union proposal which
emanated from its International offices. These meetings , some 74 to 80 in number,
covered 15 months of bargaining from December 7, 1962, through March 15, 1964.
It is noted that certain labor language appearing in the contract was agreed upon in
theory but was not drafted until April. That the meetings were lengthy is well dis-
closed by the mass of documentary evidence introduced herein.
It is also noted that most if not all counsel expressed themselves to the general
effect that they prefer to have the Board approach this issue in the traditional con-
cept ; viz, to consider the contract on its face , utilizing parol evidence solely to inter-
pret ambiguities . Several weeks before the commencement of the instant hearing,
the Board, on December 3, 1964, reopened the record in Meat and Highway Drivers,
etc., Local Union No. 710, Teamsters (Wilson & Co, inc., et al.), originally decided
in 143 NLRB 1221 but remanded to the Board in Meat and Highway Drivers Local
710, IBT v. N L.R.B., 335 F. 2d 709 (C.A.D.C.).
In an effort to avoid a similar remand herein, much evidence was taken along
the many and broad lines opened up by the court and followed by the Board. After
much thought , I have concluded that so much of what took place here is stare decisis
and appears as a matter of record in the cited cases, that it becomes unnecessary to
treat with much of the mass of material concerning these long negotiations.
One other factor is noted at this point . The negotiations for the 1964 contract
evolved basically about two issues. Respondent Unions sought to rewrite the recog-
nition clause so as to include in the unit some 2,000 to 3,000 employees of the sup-
pliers and Respondent Employers wanted a lower wage classification for the clerks
who would handle work other than that done by those classified as food and grocery
clerks. In essence , each side realized what it sought , the contract reflecting both the
new unit description and the new category of employees known as general mer-
chandise clerk who would receive a wage rate lower than that of the food and grocery
clerks.
B. The 1964-69 contract
As for the actual contract , the General Counsel relies upon the language set forth
below. While Respondent Unions initially disputed the authenticity of certain
"concessionaire " language in article I of the contract , emphasized below, they ulti-
mately withdrew this claim and I find that, by late April the language was drafted and
that no later than early May the parties were in full agreement as to the provisions
of the contract 4 It is also noted that certain stated exclusions do not apply to the
rack jobbers involved herein.
ARTICLE I
RECOGNITION OF THE UNION
A. BARGAINING UNIT.
1. The Employer recognizes the Union as the sole collective bargaining agent
with respect to work, rates of pay, hours , and terms and conditions of employ-
3 This contract was attacked in Retail Clerks Union Local 770, et al, 138 NLRB 244.
The case was remanded to the Board in Frito Company v. N.L.R.B., 330 F. 2d 45 '8 (C.A. 9)
on grounds not relevant herein
4 Except for certain health and welfare provisions not involved herein, several minor
variations are noted between the rough draft agreed upon and the printed version, the
latter printed unilaterally by Respondent Employers , but these are not significant herein.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment for the appropriate bargaining unit composed of all employees, including
employees of lessees, licensees and concessionaires (sometimes herein referred
to as "leased departments"), except as limited below, who perform work within
food markets, discount stores, drug stores, and shoe stores presently operated and
hereafter established, owned or operated by the Employer within the territorial
jurisdiction of the Local Union. Food markets are defined as those types of
establishments covered by collective bargaining agreements identified as Retail
Food, Bakery, Candy and General Merchandise Agreement, January 1, 1959, to
March 31, 1964.
2. All work or services, not specifically excluded by this Agreement, is hereby
recognized as bargaining unit work. Such bargaining unit work shall neither
be subcontracted nor performed by any person not a member of the bargaining
unit.
3. The Employer agrees that any employees performing bargaining unit work
set forth in this Agreement, within its establishments, including employees of
lessees, licensees, and concessionaires shall be members of a single, overall unit,
and the Employer will at all times exercise and retain full control of the terms
and conditions of employment within its establishments of all such employees
pursuant to this Agreement, and shall not enter into or maintain and enforce
any lease or other agreement inconsistent with the provisions hereof. The
Employer's obligation with respect to operators of leased departments is limited
to that set forth above, provided that the Employer shall furnish to the Union
written evidence that the operator of the leased department has assumed such
obligation. With respect to concessionaires, such as rack jobbers, who do not
have a fixed retail place of business, the Employer shall have the Concessionaire
Agreement, a sample of which is attached as Appendix B, executed by the con-
cessionaire or his designated agent. Provided the Employer fulfills his obligation
as set forth above, the Employer shall not be liable for any breach of contract
or failure of a leased department to abide by the wages, hours and working con-
ditions set forth in this Agreement. The seniority of employees of leased depart-
ments shall be separate from the seniority of employees of the Employer and of
employees of other leased departments. (Emphasis added)
4. In the event that the Employer establishes a new department or creates
new work or enters into any lease, license agreement, or concession agreement
involving the performance of any new work in any of the stores or establishments
operated by the Employer which are covered by this Agreement, for which
wages are not specifically provided in this Agreement, it is agreed that, should
the parties be unable to reach agreement upon wages for such work, the parties
shall then submit the matter to arbitration in accordance with Article XIV of
this Agreement, notwithstanding in this situation any provisions to the contrary
contained therein, and shall be bound by the terms of the arbitration award.
5. In the event the signatory Employer should operate discount stores, drug
stores, or shoe stores within the territorial jurisdiction of the Local Union, the
appropriate terms and conditions of employment, as in existence with the other
employers operating alike retail establishments, shall be immediately applied by
the signatory Employer, except in those marketing areas where Local Unions
137, 899 and 1167 have not established a prevailing scale through a collective
bargaining agreement. In that event, the Employer and such Local Union shall
negotiate an equitable rate for said store or stores which shall remain in effect
subject to the usual reopening of the contract for further negotiations, or until
such time as the Union is able to establish with other competitive employers
higher prevailing wage rates and conditions which shall then become applicable.
Upon failure of the parties to agree on the wage rates, the rates shall be estab-
lished by arbitration, again notwithstanding in this situation any provisions to
the contrary contained therein.
6. It is recognized by the Employer and the Union that the bargaining unit as
defined hereinabove is composed of several segments consisting of food markets,
discount stores, drug stores, and shoe stores. With reference to such segments,
it is agreed that negotiations shall be conducted in each segment, separate and
apart from any other segment, and that any economic action undertaken by the
Union or Employer shall not extend to or include, or in any way involve any
other segment. It is further agreed that with reference to any segment, the
Employer may join with any other employers in any collective bargaining negoti-
ations covering such segment and may participate fully therein, including partici-
pation in any economic action which may occur, subject to the limitations
hereinabove set forth regarding non-involvement of other segments.
RETAIL CLERKS UNION, ETC . 667
7. It is agreed that the provisions of Article I relating to the performance of
work by persons other than employees of the Employer shall not become appli-
cable or effective until July 1, 1964, and neither shall the provisions relating to
the inclusion of Drug, Discount and Shoe segments.
8. No restrictions or prohibitions shall be placed on the sale of any pre-
packaged or pre-treated merchandise purchased from any source not directly
related through ownership or management control to the Employer. It is under-
stood, however, that the work involved in the sale of such merchandise will be
performed in accordance with this Agreement.
B. FOOD MARKETS SEGMENT EXCLUSIONS.
Excluded from the segment for food markets are:
1. Persons exclusively working in a meat department, as defined by and
resulting from that agreement of December 12, 1955, between the Retail Clerks
International Association and the Amalgamated Meat Cutters and Butcher
Workmen of North America.
2. Persons engaged exclusively in janitorial and/or maintenance work.
3. Persons presently under a collective bargaining agreement with the Culinary
Workers Union, or persons employed in a complete restaurant.
4. Persons who confine their work solely to demonstration, offering of samples,
assisting customers in the selection of merchandise being demonstrated, and
activities of an advertising nature.
5. Persons who build promotional displays as long as such displays do not
include merchandise for selection or pack-up by customers.
6. During any three (3) consecutive days preceding the opening of a new
store, or a re-opening of an old store which has been closed for remodeling, by
prior notice to the Union, persons not in the bargaining unit may perform any
work in such store, provided the Department of Employment is requested to
furnish applicants to fill regular job vacancies pursuant to Article II.
7. The taking of inventories may be done by employees or persons who are
not members of the bargaining unit and who are engaged exclusively in such
work, provided that any such employees will become a part of the bargaining
unit upon the signatory Union giving proof (cross-check) of its majority repre-
sentation of such employees.
8. When the remodeling of an existing location occurs without such store
being closed, the operating Employer shall give the members of the bargaining
unit employed by him, within a reasonable area surrounding the location in
question, an opportunity to perform the work required for such remodeling at
the applicable contract rate. When members of the bargaining unit are not
available for such work, such work may be performed by persons not in the
bargaining unit.
9. Persons engaged in the inspection of merchandise displayed for sale as to
its condition or status of inventory for the purpose of recommending changes to
be made or services to be performed by the employees within the bargaining unit.
10. Store office employees whose work is not directly connected to check-
stand operation or procedures.
11. Employees of suppliers engaged in the handling of the following categories
of merchandise:
(a) Bread and cakes, when delivered by bakery drivers.
(b) Potato chips, corn chips, and similar snack items, but no other
delicatessen products.
(c) Bulk and cello-wrapped candy when delivered by sales drivers.
(d) Items requiring immediate refrigeration may be placed under
refrigeration but not displayed.
12. Over-All Store Manager.
a. Operation a. Except as set forth in Paragraph b below, only one
person commonly known as the over-all store manager in each of the retail
stores or store of the Employer is exempt from the present Agreement.
The above provisions shall not apply to any person not having the full
responsibility of management over all departments operated by the owner,
nor shall it apply where the owner is actively engaged on the premises in
the management of said store where there are three (3) or less persons
employed. Except as set forth in Paragraph (b) below, nothing in this
Agreement shall in any way be construed to interfere with any work which
the over-all store manager may perform.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Operation b. The Employer shall have the right at his discretion to
employ in any individual store a manager and an assistant manager who
shall be excluded from the bargaining unit, provided that in such instance
neither of these employees shall be permitted to perform any work whatso-
ever beyond the supervision or direction of the bargaining unit employees.
The permanent choice of either system shall be made by the employer in
writing to the Union no later than sixty (60) days after the effective date
of this Agreement, or sixty (60) days after the opening of any new store.
The choice of either (a) or (b) operation as hereinabove defined may be
altered on the annual anniversary date of this Agreement. Operation (b)
shall not apply to any store with less than ten (10) bargaining unit employ-
ees, excluding clerk's helpers.
c. Concessionaires, such as rack jobbers, who do not have a fixed retail
place of business, and who employ traveling personnel who perform bar-
gaining unit work, shall not be entitled to (a) and (b) above. However,
supervisory employees of such concessionaires shall be excluded from the
bargaining unit, provided that such supervisors shall not be permitted to
perform any bargaining unit work. The operator of any concession not
having a fixed retail place of business, such as rack jobbers, shall not be
permitted to perform any bargaining unit work unless such operator
employs one or more employees who perform bargaining unit work, or
unless he achieves employee status.
F. CATEGORIES OF EMPLOYEES-FOOD MARKET SEGMENT.
There shall be established by this Agreement four (4) categories of employees
to be identified as follows:
1. Food or Grocery Clerk. Subject to the exclusions from the bargaining
unit described above, a Food or Grocery Clerk is an employees who handles all
foodstuffs, including liquor and other beverages, nursery items behind the
checkstands, all household paper goods, insecticides and all household cleaning
and laundry supplies. Store office employees whose work is directly connected
to checkstand procedures or operations are also included in this category, as are
traveling clerks of concessionaires who service health and beauty aids and
houseware items or similar line or lines of merchandise.
2. General Merchandise Clerk. Subject to the exclusions from the bargaining
unit described above, a General Merchandise Clerk is one who handles any
merchandise other than that included in the definition of Food and Grocery
Clerk, provided, however, that the General Merchandise Clerk also includes one
who handles bakery goods in a bakery department as defined in Article XXII,
bulk or cello-packed candy, tobacco (except where the tobacco is displayed at
the checkstand and the liquor departments), and service delicatessen and take-
out food departments as set forth in Article VI, Paragraph S-3.
APPENDIX B
CONCESSIONAIRE AGREEMENT
THIS AGREEMENT made and entered into this ------------------ day
of _______________________,196__, by and between ____________________
______________ (hereinafter "MARKET") and __________________________
___________________________ (hereinafter "CONCESSIONAIRE");
WITNESSETH:
In consideration of the terms, covenants and conditions herein expressed to be
kept and performed by the respective parties hereto, said parties mutually agree
as follows:
1. CONCESSION. Market hereby grants to CONCESSIONAIRE the non-
exclusive right and privilege to use allocated space in MARKET'S retail stores
for the purpose of stocking, shelving, merchandising, servicing, rotating and
inspecting CONCESSIONAIRE'S products or merchandise.
2. STORES. This AGREEMENT shall apply to all of MARKET'S retail
stores except ------------------------------------------- (mark out or
indicate as appropriate).
3. SPACE. The space allocated pursuant to this AGREEMENT shall be
selected and determined by the manager of each store or his representative. The
amount and location of such space may be changed at any time by the manager
or his representative. The space allocated pursuant to this AGREEMENT is
not leased to CONCESSIONAIRE.
RETAIL CLERKS UNION, ETC. 669
4. CONDUCT OF CONCESSIONAIRE'S EMPLOYEES. CONCESSION-
AIRE will exert its best efforts to establish and maintain a friendly and business-
like relationship between its employees and the customers and employees of
MARKET. At all times, MARKET retains full control over the performance
of all work within its stores . CONCESSIONAIRE retains complete and sole.
control and responsibility for and to its employees but shall instruct and control
its employees in the performance of their work to the complete satisfaction of
MARKET. The performance of work by CONCESSIONAIRE'S employees
shall be in a manner satisfactory and acceptable to MARKET, who shall be the
sole judge of the quality of performance.
5. RECOGNITION OF COLLECTIVE BARGAINING AGREEMENT.
Both MARKET and CONCESSIONAIRE recognize that MARKET is a party
to and bound by the terms and conditions of RETAIL FOOD, BAKERY,
CANDY, AND GENERAL MERCHANDISE AGREEMENT (APRIL 1,
1964-MARCH 31, 1969) ( hereinafter "RETAIL AGREEMENT"). CONCES-
SIONAIRE hereby assumes the obligations of said RETAIL AGREEMENT
with repect to the terms and conditions of the employment of CONCESSION-
AIRE'S employees working in the stores of MARKET, and agrees to abide by
the wages, hours and working conditions of said RETAIL AGREEMENT with
respect to such employees. [emphasis added]
6. RELATIONSHIP OF PARTIES. The relationship between the parties is
that of MARKET and CONCESSIONAIRE, and not that of lessor and lessee,
employer and employee, or principal and agent . CONCESSIONAIRE is an
independent contractor and the employees of CONCESSIONAIRE shall not be
considered the employees of MARKET for any purpose.
7. ASSIGNMENT. The rights granted hereunder shall not be sold, trans-
ferred or assigned voluntarily or involuntarily by CONCESSIONAIRE without
the written consent of MARKET.
8. TERMINATION. Either party may terminate this AGREEMENT at
any time, with or without cause, immediately upon giving notice to the other
party.
IN WITNESS WHEREOF, the parties hereto have signed and executed this
AGREEMENT this ------- ------- day of --------------- 196__.
--------------------------- ----------------------------
(CONCESSIONAIRE) by (MARKET) by
---------------------------- ----------------------------
C. Analysis and conclusions
A consideration of the foregoing immediately discloses that article I, with certain
stated exceptions, flatly decrees that all work done within the store is bargaining unit
work and prohibits the signatory stores from doing business with outside suppliers or
rack jobbers who are not parties to the contract.
The mechanics for implementing this are not in serious dispute. The store owner is
specifically directed to have the rack jobber execute the concessionaire agreement.
This agreement binds the rack jobber to the Clerks' contract which, it may be noted,
contains the customary union-shop clause. It is also clear that any market operator
who did not obtain the concessionaire agreement from, and continued to do business
with, the rack jobber was in violation of the contract.
It is readily apparent that this language is directed to the capture of membership
dues and initiation fees. Manifestly, the thrust of article I is at work done by employ-
ees of other employers. Article I is not directed to the "recapture" of work, because
Clerks has never done this work in the Los Angeles area, insofar as the affected
employers are involved.
The rack jobber whose employees are represented by Teamsters is thus placed in
a dilemma. He can breach his contract with Teamsters and sign the concessionaire
agreement. Under this system, his drivers would be permitted only to drop-ship the
merchandise at loading docks. Then other traveling clerks would later handle and
service the merchandise. As this system is handled in San Diego, two different
employees perform work on different occasions in lieu of the one who previously
delivered the merchandise and serviced the display area in one visit. It is clear that
this requires the rack jobber to alter his method of doing business Moreover, if the
rack jobber values his existing contractual commitments and does not choose to
breach his contract with Teamsters, he is effectively prevented by this contract from
doing business with the food markets. This, it is clear, is what is referred to as a
"union signatory" requirement. N.L.R.B. v. Joint Council of Teamsters No. 38 and
Arden Farms Co., et al. (California Assn. of Employers), 338 F. 2d 23 (C.A. 9), and
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truck Drivers Union Local No. 413, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, et al. (Brown Transport Corp.) v.
N.L.R.B., 334 F. 2d 539 (C.A.D.C.).
Stated otherwise, dealing with the rack jobber is permitted if the latter has signed a
concessionaire agreement and is forbidden if he has not. This, I believe, constitutes a
secondary thrust in aid of organizational efforts in the newly expanded bargaining
unit. See Milk Drivers and Dairy Employees, Local Union No. 584, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Old
Dutch Farms, Inc.) v. N.L.R.B., 341 F. 2d 29 (C.A. 2).
As for implementation, in communications on May 20 and again on June 19, 1964,
Respondent Council instructed and directed its members to procure execution of the
concessionaire agreement as a condition to the suppliers continuing to do business
with the markets after July 1, 1964. They were advised that employees of the rack
jobbers had to become members of Clerks if they were to do any work within the
stores. Copies of the above-quoted concessionaire agreement were supplied.
The General Counsel having filed a petition for an injunction under Section 10(1)
of the Act to enjoin enforcement of this agreement, the parties on June 26, 1964,
entered into a stipulation not to put article I into effect pending disposition of the
instant cases. Accordingly, on June 29, Respondent Council advised its members to
ignore the two previous bulletins and not to give effect to any portion of article I
which would require a change in their method of doing business with any supplier.
It is undisputed, however, that other wage and fringe benefit provisions of the contract
were put into effect on schedule.
Evidence that Respondent Unions intend to enforce and implement this contract
is shown by the following. On June 23, 1964, some of Respondent Unions, including
Local 770, filed a civil action in the United States District Court for the Southern
District of California, Central Division, in Case 64-841. Therein, the plaintiffs sought
an order directing certain named defendants to comply with article I of the 1964-69
contract.5
A second action, in Case 64-958, was filed by the same plaintiffs against the same
defendants on July 15. Reference was made to the agreement in the 10(1) proceed-
ing not to enforce the portion of article I directly involved herein. A declaration of
the rights of the parties was sought in view of a "separability clause" found in the
contract and the claim of the plaintiffs that "A cancellation of Article I of the Agree-
ment is in effect a cancellation of the entire agreement." The complaint further noted
that the plaintiffs were informed that the defendants took the position that the dispute
was not arbitrable under the agreement and added that "Plainiffs do not contest this
position of defendants."
However, a third action seeking an order compelling arbitration was filed in the
Superior Court of the State of California for Los Angeles County by Local 770 on
November 25, 1964, against, in essence, the same defendants. Reference was made to
the agreement by the General Counsel and the present parties not to enforce part of
article I. The plaintiffs then asked for arbitration of the issue whether the rest of the
contract, aside from a portion of article I, remained in effects
Returning to article I, I do not believe that this can be termed as language aimed at
the preservation of unit work because the agreement permits doing business with the
rack jobber if the latter puts his employees under the Clerks' contract and its union-
shop provisions.
As the court pointed out in a prior proceeding involving these parties "It is clear,
from what we have said of the Union's demands and of the provisions of the contract,
that compliance with those demands did not necessitate discontinuance of seller-
purchaser relationships between the market-owners and the rack-jobbers who had not
been organized by this Union. There were apparently three alternative moves by
which the markets could have been relieved from the pressure exerted by the Union:
(1) let the rack-jobbers leave their goods at the delivery decks; (2) the rack-jobbers
to recognize and bargain with the Union; or (3) the markets and rack-jobbers to cease
doing business with each other. A discontinuance of the business was at most an
alternative that may possibly have satisfied the union." Retail Clerks Union Local
770, et al., v. NLRB., 296 F. 2d 368 (C.A.D C.).
It is clear that this is not a work-recapture clause, contrary to certain testimony
elicited by Clerks, because Clerks have never had this work in the Los Angeles area
5 The defendants were in essence the Respondent Employers involved herein with some
changes. The stipulation in the 10(1) proceeding was entered on June 26 and included
all of Respondent Unions.
01 deem it unnecessary to treat herein with the apparent inconsistencies of these
contentions in the various actions.
RETAIL CLERKS UNION, ETC. 671
among the employers involved herein , although it appears that such is not the case
with respect to several other employers.
While, as in the case cited above , the concessionaire clause might not require a
total cessation of business , it would require a change in the business relationship
because employees of rack jobbers could no longer perform the work of stocking and
servicing under the Clerks ' contract unless they were forcibly brought thereunder.
See Tiuck Drivers Union Local 413, Teamsters (Patton Warehouse , Inc., et al.) v.
N.L.R.B., 334 F . 2d 539 (C.A.D.C.).
Reference was made during the hearing to certain language in Meat and Highway
Di iveis, etc, Local 710 , Wilson & Co. v N L.R.B, 335 F. 2d 709 (C.A.D.C.), finding
that work may be "fairly claimable" and that conduct in support of such an objective
may not run afoul of Section 8(e). The present case is readily distinguishable because
it involves work acquisition and not work recapture . Indeed, this work is per-
formed, in part at least, by employees subject to Board certifications in favor of other
labor organizations.7
The same opinion also points out that union recognition subcontracting clauses are-
illegal. Indeed, the court has previously noted that contracts limiting subcontracts
to employers under contract with the same union are unlawful . Bakery Wagon Driv-
ers and Salesmen , Local Union No. 484 ( Continental Baking Co., et al.) v. N.L.R.B.,
321 F. 2d 353 (C.A.D .C.). See also N L.R.B. v. Joint Council of Teamsters No. 38
and Arden Farms Co., et al. (California Assn. of Employers ), 338 F. 2d 23 (C.A. 9).
In effect, the contract presents the outside suppliers with a Hobson's choice. If
they sign the concessionaire agreement , they are probably exposing themselves to
unfair labor practice charges by Teamsters , the certified bargaining representative of
their employees . See N.L .R.B. v. Benue Katz, etc., d /b/a Williamsburg Steel Prod-
ucts Co. 369 U.S. 736. On the other hand, if they do not sign , they are prevented from
doing business with the stores.
In view of the foregoing considerations , I find that article I of the contract is viola-
tive of the Act in that it requires a partial, if not total , cessation of business within
the meaning of Section 8(e) of the Act. Muskegon Bricklayers Union #5, Brick-
layers , etc. (Greater Muskegon General Contractors Association ), 162 NLRB 360
and Local 217, United Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry , etc. (The Carvel Co.), 152 NLRB 1672. See N.L.R.B. v.
Milk Wagon Drivers' Union , Local 753, Teamsters (Pure Milk Assn. ), 335 F. 2d 326
(C.A. 7) and Local 3, International Brotherhood of Electrical Workers (New York
Telephone Company ), 140 NLRB 729 , 730, enfd. 325 F. 2d 561 (C.A. 2).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth above have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondents have engaged in unfair labor practices, I shall rec-
ommend that they cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Because the record indicates that article I of the contract is included in contracts
between Respondent Unions and foodstores other than Respondent Employers, it is
accordingly recommended, in order to ensure against prospective violations of Sec-
tion 8(e), that Respondent Unions cease and desist from entering into, maintaining,
giving effect to or enforcing article I, in the respects set forth below, with any employer
over whom the Board would assert jurisdiction.
7I think it a fair statement that 20 attorneys could readily furnish 20 substantial but
differing interpretations of work that is "fairly claimable." For example, Union W, not
Involved herein, represents many clerical workers. The record disclosing that employees
of rack jobbers perform clerical work with inventories and orders, is this work fairly
claimable by It? Union X has the most lucrative retirement plan of any labor organi-
zation for Its members . In the interest of the welfare of employees, and the major thrust
of Section 7 I believe is on directed, may it not fairly claim this work? Union Y has
wage scales which are the highest in an area ; is this fairly claimable work In behalf of
the employees It wishes to represent? And how about Union Z whose members use certain
egpipment, unlike members of other labor organizations, which is so efficient that labor
costs are substantially reduced. Is this fairly claimable, in the interest of reducing labor
or construction costs?
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Each of Respondent Unions is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2. Each of Respondent Employers is an employer within the meaning of Section
2(2) of the Act.
3. By entering into, giving effect to, and enforcing article I of their 1964-69 con-
tract, insofar as article I requires Respondent Employers to cease doing business with
other employers, Respondents have engaged in an unfair labor practice in violation
of Section 8(e) of the Act.
4. The aforesaid unfair labor Practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, upon the
entire record in the case, and pursuant to Section 10(c), of the National Labor Rela-
tions Act, as amended, it is recommended that Respondents, and each of them named
herein, their officers, agents, representatives, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining, giving effect to, or enforcing article I of their "Retail Food, Bak-
ery, Candy, and General Merchandise Agreement" covering the period from April 1,
1964, through March 31, 1969, insofar as said article I requires employees of any
outside supplier or rack jobber, or of any other person doing business with Respond-
ent Employers or with any other employer subject to the Act, to become members of
Respondent Unions' bargaining unit, or join Respondent Unions as a condition of per-
forming work in the stores of any of Respondent Employers or such other employers;
or requires any outside supplier or rack jobber to sign the concessionaire agreement
incorporated in said article I with any Respondent Employer, or with any other retail
food market in whose stores such employees may work, or prohibits the employees
of any outside supplier or rack jobber or any other person from working in the stores
of Respondent Employers or in any other retail food market unless such outside sup-
plier or rack jobber agrees to be bound by the terms and conditions of the aforesaid
contract and signs the concessionaire agreement referred to in said article I.
(b) Entering into, maintaining, giving effect to, or enforcing any contract whereby
Respondent Employers, or any other employer subject to the Act, agree to cease or
refrain from dealing in the products of any outside supplier or rack jobber or cease
doing business with any such person in violation of Section 8(e) of the Act.
2. Take the following affirmative action which is deemed necessary to effectuate the
policies of the Act:
(a) Respondent Employers shall post at their places of business copies of the
attached notice marked "Appendix A." 8
(b) Respondent Unions shall post at their business offices, places of business, and
meeting places copies of the attached notices marked Appendixes "A" and "B." Copies
of said notices, to be furnished by the Regional Director for Region 21, shall be
respectively signed by authorized representatives of Respondents and posted by said
Respondents immediately upon receipt thereof and maintained for a period of 60
consecutive days thereafter in conspicuous places, including all places where notices
to employees and members, respectively, are customarily posted. Reasonable steps
shall be taken by Respondents to ensure that said notices are not altered, defaced, or
covered by any other material.
(c) Respondents shall notify the Regional Director for Region 21, in writing,
within 20 days from the date of receipt of this Decision, what steps they have taken
to comply herewith.9
8 In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words, "a Decision
and Order."
9In the event that this Recommended Order shall be adopted by the Board, this pro-
vision shall be modified to read: "Notify said Regional Director, in writing, within 10
days from the date of this Decision, what steps Respondents have taken to comply
herewith."
RETAIL CLERKS UNION, ETC.
APPENDIX A
NOTICE TO ALL EMPLOYEES
673
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT maintain, give effect to, or enforce article I of our contract with
Retail Clerks Union Local Nos. 137, 324, 770, 899, 905, 1167, 1222, 1428, and
1442 entitled "Retail Food, Bakery, Candy and General Merchandise Agree-
ment" covering the period from April 1, 1964, through March 31, 1969, insofar
as said article I requires employees of any outside supplier or rack jobber, or of
any other person doing business with the undersigned, to become members of the
bargaining unit described in said contract or to join the above-named labor orga-
nizations as a condition of performing work in our stores ; or requires any out-
side supplier or rack jobber to sign the concessionaire agreement incorporated in
said article I or prohibits the employees of any outside supplier or rack jobber or
any other person from working in our stores unless such outside supplier or rack
jobber agrees to be bound by the terms and conditions of the aforesaid contract
and signs said concessionaire agreement.
WE WILL NOT enter into, maintain, give effect to, or enforce any contract
whereby we agree to cease or refrain from dealing in the products of any out-
side supplier or rack jobber or cease doing business with any such person in
violation of Section 8(e) of the National Labor Relations Act.
FOOD EMPLOYER'S COUNCIL , INC. HOLLYWOOD RANCH MARKET
ABC MARKETS HUGHES MARKETS
ALEXANDER 'S MARKETS JONSON'S MARKETS
ALPHA BETA ACME STORES JURGENSEN'S GROCERY
ARROW MARKET KING COLE-LOS FELIZ
ARvo's MARKETS KORY'S MARKETS
ATLANTIC FARMS LAND'S MARKETS
BEACH'S GROCERIES LA PERLA MARKET
BETTER FOODS LEO'S MARKET
BIG BEAR LUCKY STORES, INC.
BIG SAVER FOODS MARKET BASKET
BOYS MARKETS MAYFLOWER MARKETS
BRADSHAW, INC. MEDNICK BROS. MARKETS
BROOKLYN & FORD MENLO FARMS
BURGHARDT 'S MARKETS PENNY FOOD MARKET
CARL'S RANCH MARKETS PIGGLY WIGGLY MARKETS
CHAPMAN PARK MARKET RAISIN ENTERPRISES
CRAWFORD STORES RALPHS GROCERY
CRAWFORD 'S MODERN VILLAGE RICHARD 'S LIDO MARKET
DAYLITE SUPER MARKETS ROBERT'S MARKET
Dow's MARKETS SAFEWAY STORES, INC.
DE SIMONE MARKET SAGE'S
ESKO, INC. SANTA CRUZ MARKETS
EL RANCHO MARKETS SCHAUB'S INC.
MAX FINE & COMPANY SERBER 'S FOODS
FOOD GIANT SHOPPER MARKETS
FOOD PALACE MARKET SPECTOR'S MARKET
FOODS Co. STATER BROS. MARKETS
Fox MARKETS SUN VAL MARKET
GATEWAY MARKETS THREE CROWN PRODUCE
GORDON'S MARKET THRIFTMART, INC.
GREAT A & P TEA CO. THRIFTOWN MARKET
GREAT CENTRAL MARKET VALLEY STORES
GREEN FROG MARKET VINCENT'S SUPER MARKET
GROWERS RANCH MARKET VON'S GROCERY
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5229.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL OUR MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT maintain, give effect to, or enforce article I of the contract enti-
tled "Retail Food, Bakery, Candy and General Merchandise Agreement" cover-
ing the period from April 1, 1964, through March 31, 1969, insofar as said
article I requires employees of any outside supplier or rack jobber or of any other
person doing business with the employers named in Appendix A posted together
with this appendix or with any other employer subject to the National Labor
Relations Act, to become members of our bargaining unit described in said con-
tract or to join our labor organizations as a condition of performing work in
the stores of the above-described employers or such other employers; or requires
any outside supplier or rack jobber to sign the concessionaire agreement incor-
porated in said article I with any said employer or with any other retail food
market in whose stores such employees may work, or prohibits the employees
of any outside supplier or rack jobber or any other person from working in the
stores of the above-named employers or in any other retail food market unless
such outside supplier or rack jobber agrees to be bound by the terms and condi-
tions of the aforesaid contract and signs said concessionaire agreement.
WE WILL NOT enter into, maintain , give effect to, or enforce any contract
whereby the above-named employers or any other employers subject to the
National Labor Relations Act agree to cease or refrain from dealing in the prod-
ucts of any outside supplier or rack jobber or cease doing business with any such
person in violation of Section 8(e) of the Act.
RETAIL CLERKS UNION LOCAL No. 137
RETAIL CLERKS UNION LOCAL No. 324
RETAIL CLERKS UNION LOCAL No. 770
RETAIL CLERKS UNION LOCAL No. 899
RETAIL CLERKS UNION LOCAL No. 905
RETAIL CLERKS UNION LOCAL No. 1167
RETAIL CLERKS UNION LOCAL No. 1222
RETAIL CLERKS UNION LOCAL No. 1428
RETAIL CLERKS UNION LOCAL No. 1442,
Respondent Unions.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
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.
Members may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 699-5229, if they have any ques-
tion concerning this notice or compliance with its provisions.
Wayne Johnson , an Individual , d/b/a Carmichael Floor Covering
Company and Carpet, Linoleum and Soft Tile Local Union No.
1237, Brotherhood of Painters , Decorators and Paperhangers of
America, AFL-CIO
John Duncan , an Individual , d/b/a Duncan Floor Company and
Carpet, Linoleum and Soft Tile Local Union No . 1237, Brother-
hood of Painters, Decorators and Paperhangers of America,
AFL-CIO. Cases Nos. 20-CA-324-1 and 2O-CA-334-?. Novem-
- ber 9, 1965
DECISION AND ORDER
On August 11, 1965, Trial Examiner Louis S. Penfield issued his
Decision in the above-entitled proceeding, finding that the Respondents
155 NLRB No. 65.