Murray Plopper, Director of Organization, Etc.

National Labor Relations Board - Board Decisions

Jan 29, 1960

126 N.L.R.B. 362 (N.L.R.B. 1960)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW -
1 Local No 328 , International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, is a labor organization within the meaning of
Section 2 (5) of the Act
2 By discriminating in regard to the hire , tenure, and condition of employment
of Gerald Rostello and Donald Kauepila, thereby discouraging membership in and
activity on behalf of the (above-named labor organization, the Respondent has en-
gaged m and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act
3 All employees in the Respondent's Calumet and Laurium , Michigan, stores,
including regular part-time employees but excluding store managers, meat managers,
and supervisors as defined in the National Labor Relations Act, as amended, con-
stitute a unit of the Respondent 's employees appropriate for the purposes of colllec-
tive bargaining within the meaning of Section 9(b) of the Act
4 The above-named labor organization was on October 27, 1958, and at all
times since then has been, the exclusive representative of all employees in the afore-
said unit for the purposes of collective bargaining , within the meaning of the Acct
5 By refusing, on or about October 28, 1958, and thereafter, to recognize and
bargain with the above-named labor organization , the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (5)
of the Act
6 By interfering with, restraining, and coercing its employees in the exercise of
Tights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication 7
Murray Plopper, Director of Organization; Richard Russo,
Business Agent ; Local #98, Retail Clerks International Asso-
ciation , AFL-CIO and Piggly-Wiggly Midwest Co., Inc. Case
No 13--CB-801 January 29, 1960
DECISION AND ORDER
On October 12, 1959, Trial Examiner Henry S Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto Thereafter, the Respondents
filed exceptions to the Intermediate Report, together with a support-
ing brief
The Board i hats reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed
The rulings are hereby affirmed The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner
' Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three member panel [ Chairman Leedom and
Members Rodgers and Bean]
426 NLRB No 48
MURRAY PLOPPER, DIRECTOR OF ORGANIZATION, ETC.
ORDER
363
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Local #98,
Retail Clerks International Association, AFL-CIO ; Murray Plopper,
Director of Organization; and Richard Russo, Business Agent; and
their officers, agents, successors, and assigns, shall :
1. Cease and desist from restraining or coercing employees of the
Sterling, Illinois, store of Piggly-Wiggly Midwest Co., Inc., in the
exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondent Union's business
offices, meeting halls, and all places where notices to its members are
customarily posted, copies of the notice attached to the Intermediate
Report marked "Appendix."' Copies of said notice, to be furnished
by the Regional Director for the Thirteenth Region, shall, after being
duly signed by official representatives of the Respondent Union, be
posted by the Respondent Union immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter. Reason-
able -steps shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director for the Thirteenth Region signed
copies of the aforementioned notice for posting by Piggly-Wiggly
Midwest Co., Inc., the Company willing, in places where notices to
employees are customarily posted. Copies of said notice, to be fur-
nished by the Regional Director for the Thirteenth Region, shall, after
being signed by the Respondents, as indicated, be forthwith returned
to the Regional Director for disposition by him.
(c) Notify the Regional Director for the Thirteenth Region, in
writing, within 10 days from the date of this Order, what steps they
have taken to comply herewith.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
FINDINGS OF FACT
Piggly-Wiggly , the Charging Party, is a Delaware corporation , with its principal
office located at Rockford , Illinois, where it is engaged in the sale and distribution
of all types of food through 60 retail stores located in the States of Illinois , Iowa, and
Wisconsin . In the course of its business operations , Piggly-Wiggly during the year
1958 did a gross volume of business in excess of $50,000,000 and its retail grocery
store located at Sterling, Illinois, did a gross volume of business in excess of
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$2,000,000. During the same period of time, Piggly-Wiggly purchased and received
from States outside the State of Illinois foodstuffs valued in excess of $20,000,000
and its retail store located at Sterling, Illinois, purchased and received from States
outside the State of Illinois foodstuffs valued in excess of $500,000. By reason of
the foregoing facts, it is found that Piggly-Wiggly Midwest Co., Inc., the Charging
Party, is engaged in commerce within the meaning of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, and that it will further
the purpose and policies of the Act to assert jurisdiction in this case.
Background
Sometime in the middle of January 1959 , Local #98, Retail Clerks International
Association , AFL-CIO, the Respondent , hereinafter called the Union, which is a
labor organization within the meaning of Section 2(5) of the Act, initiated plans to
organize the employees of Piggly-Wiggly 's Sterling , Illinois, store . By February
12, 1959 , 12 of the then 23 eligible workers employed by Piggly-Wiggly at its
Sterling, Illinois, store , signed cards authorizing the Respondent Union to represent
them in collective -bargaining negotiations with Piggly-Wiggly.'
On February 13, Richard Russo, secretary -treasurer of the Respondent Union
telephoned Charles T. Vanausdall , vice president of Piggly-Wiggly , notifying him
that 12 of the 23 eligible employees 2 in the Sterling store had signed authorization
cards and requested the Company to recognize the Union as the exclusive bargain-
ing representative of said employees . Vanausdall informed Russo that "a simple
majority was not enough"-that he would not recognize the Union until it obtained
signed authorization cards from a "substantial majority" of the employees at the
Sterling, Illinois, store . Russo agreed to attempt to obtain additional authorizations
from the other 11 Sterling store employees who had not signed cards as yet.
Vanausdall then agreed that Russo would be allowed on the premises of the Sterling
store at a time mutually agreeable to him and the store manager in order for Russo
to contact these 11 employees.
February 18 was the date agreed upon which was the day Russo returned to the
Sterling store in order to attempt to sign up more of the employees In the course
of soliciting the remaining 11 employees at the Sterling store, who had not yet
signed authorization cards, Russo learned that the Company had polled its Sterling
employees the day before, February 17, after working hours, as to whether they
desired to be represented by the Respondent Union and that the employees had
voted 14 to 9 against the Union . When Russo learned this , he left the store without
attempting to solicit any additional employees to sign authorization cards and since
that time the Union has made no effort to directly contact the employees at Piggly-
Wiggly's Sterling, Illinois, store.
Delia Mossesso , International representative of the Retail Clerks Union, the
parent body of the Respondent Local Union , telephoned Vanausdall , vice president
of Piggly-Wiggly , on February 20 objecting to the Company having polled its
Sterling store employees and advised him that a picket line would be established at
the Sterling , Illinois, store.
The picket line was established the same day,3 February 20 , and the sign carried
by the pickets read: 4
'The Company, when it was approached in January by union officials, agreed that its
employees could be solicited on the Sterling store premises, at a mutually agreeable time,
whereupon the Company sent letters to its employees on February 6, explaining Piggly-
Wiggly's policy with respect to union organization and advising them that their right
to organize would be respected. (General Counsel's Exhibit No. 4 )
2 The unit found appropriate by the Board on May 8, 1959, comprised 22 employees.
(Case No. 13-RM-441, unpublished.)
3 The first day there were three pickets and thereafter one picket. None of the pickets
were store employees
* In addition, the pickets, on the first day only, distributed to customers of Piggly-
Wiggly's Sterling store, on its parking lot, leaflets reading as follows :
TO THE SHOPPING PUBLIC
We bring our story to you. Your support, your refusal to patronize an Employer
who refuses to recognize and bargain with the Union selected by the majority of
his employees, will help us get recognition
The Retail Clerks Union, Local 98 represents a majority of the employees of the
Piggly Wiggly store in Sterling. This Employer, having agreed with the Union that
he would recognize it if the Union could prove that it represented the majority of
the employees. When the Union called the Employer for a meeting to prove its
MURRAY PLOPPER, DIRECTOR OF ORGANIZATION, ETC . 365
Piggly Wiggly unfair to
the Retail Clerks Union
in Sterling, Illinois
The picketing has continued and was in effect at the time of the hearing.
Murray Plopper, International vice president of the Retail Clerks International
Association, telephoned Vanausdall on February 23, requesting Piggly-Wiggly to
recognize the Union as the bargaining representative for its employees at the Sterling
store. The conversation was inconclusive.
On February 24, 1959, the Company filed a petition with the Board requesting
that a representation election be held to determine whether the employees in the
bargaining unit desired to be represented by the Union. Following a hearing in the
representation case on March 16, 1959, and the issuance of a Decision and Direction
of Election on May 8, a Board election was held on May 26 for all clerks in the
grocery and produce departments employed at Piggly-Wiggly's Sterling, Illinois,
store, excluding all meat department employees, professional employees, and guards
and supervisors. The result of the election was 12 votes "No" and 10 votes "Yes"
in answer to the following question printed on the ballots: "Do you wish to be
represented for purposes of collective bargaining by Local Union 98, Retail Clerks
International Association, AFL-CIO?" The Regional Director issued a certificate
of the results of the election on June 25, 1959.
On February 26, 1959, the Union filed a charge (Case No. 13-CA-3185, un-
published, alleging that Piggly-Wiggly "held a captive meeting at which time a
secret ballot election [was held] on the store premises" in violation of
Section 8(a)( I) and that the Company has refused to bargain with the Union, which
represents a majority of the employees, in violation of Section 8(a)(5). The
Regional Director refused on March 10 to issue a complaint and his action, on
appeal to the General Counsel, was sustained on May 15.
On May 29, Piggly-Wiggly filed a charge against the Union and the General
Counsel issued a complaint on July 20, 1959.
The complaint alleges, in substance, that:
(1) On May 26, 1959, the Board conducted an election among the eligible
employees at Piggly-Wiggly's Sterling, Illinois, grocery store.
(2) The Respondent Union lost the election.5
(3) Since February 20, 1959, Respondent Union has picketed the Piggly-Wiggly
store located at Sterling, Illinois, for the purpose of forcing Piggly-Wiggly to recog-
nize the Union as the employees' bargaining representative.
(4) Respondent, by the economic coercion of its picketing, has restrained and
coerced employees in the exercise of their rights guaranteed in Section 7 of the Act,
thereby committing unfair labor practices within the meaning of Section 8(b) (1) (A)
of the Act.6
majority, the Piggly Wiggly tap management was dumbfounded and immediately re-
fused on the pretext that the Union should prove that it represents 90% of the
employees, not the majority as the law of the land states.
We are still willing to prove our majority. We have the cards to do it.
We are asking you to help us. Do not patronize Piggly Wiggly. Only your sup-
port, your refusal to shop at this Unfair Employer will get us the Union recognition.
PGGLY WIGGLY EMPLOYEES COMMITTEE,
RETAIL CLERKS UxioN, LOCAL 98
5Piggly-Wiggly Midwest Co., Inc., and Local Union #98, Retail Clerks, Case No.
13-R\I-441 (unpublished).
6 The pertinent provisions of the National Labor Relations Act (61 Stat. 136, as
amended, 29 U.S.C. 151, et seq.) are as follows :
SEC. 7. Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the right
to refrain from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a) (3).
Sac. 8(b). It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed
in section 7:.. .
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The proceeding in this case was held at Rockford, Illinois, on August 11,
1959, before the duly designated Trial Examiner, Henry S. Salim, pursuant to due
notice and with all parties represented by counsel. The General Counsel, Charging
Party, and the Respondent have filed briefs.
Issue
The question here presented is whether peaceful picketing by a union which does
not represent a majority of the employees, to compel recognition as the employees'
exclusive bargaining representative, after the employees rejected the union in an
election, is an unfair labor practice within the meaning of Section 8(b)(1)(A).
Contentions
The General Counsel contends that the exertion of economic pressure, through
picketing of Piggly-Wiggly's Sterling, Illinois, store, in order to compel the Company
to recognize the Union, at a time when it did not represent a majority of the
employees, as evidenced by the Union losing the Board election, restrained and
coerced the Company's employees in the exercise of rights guaranteed by Section 7
and thereby violated Section 8(b) (1) (A) of the Act.
The Respondent acknowledges that one of its purposes in establishing the picket
line was to obtain recognition from the Company. Also, contends Respondent, an
additional purpose for picketing the Company's Sterling store was to advertise to the
public that it was the victim of unfair labor practices committed by the Company
when it polled its employees and when the Company refused to recognize it as the
bargaining agent of its employees even though it offered to prove it obtained signed
authorization cards from 12 of the 23 employees at the Sterling store.? Moreover,
its loss of majority status, Respondent Union argues, is directly attributable to the
Company's alleged unfair labor practices.
Conclusions
The contention of the General Counsel is, in effect, what the Board held in the
Curtis Brothers case, 119 NLRB 232. In that case, the Board held that peaceful
picketing of a worksite to achieve recognition by a union which was defeated in an
election, diminished the worker's financial security and, therefore, restrains and
coerces the employees involved in the exercise of their right of free choice in the
selection of a representative by seeking to force them to accept the union they had
rejected which is a violation of Section 8(b) (1) (A) of the Act. The two compo-
nents of a violation of Section 8 (b) (1) (A) are that: (1) union conduct "restrain
or coerce" employees, and (2) such restraint and coercion be in derogation of their
organizational rights under Section 7. For the Company to have recognized the
Union, in the face of a majority having rejected it by their votes in the Board-
conducted representation election, would have abridged the employees' Section 7
rights to be represented by a union "of their own choosing" or, if they desired "to
refrain from being represented by any union at all."
The manner in which picketing by a minority union for recognition restrains and
coerces employees is described by the Board in the Curtis Brothers case, supra, as
follows:
the pressure [exerted by picketing] is necessarily an economic one, a
device to reduce the business to the point where his financial losses force . . .
[the employer] to capitulate to the union's demands. It is immaterial whether
the ostensible technique, or the unspoken but necessary consequence, is to cut
off the employer's labor supply by preventing the employees from reporting to
work; to keep the customers from buying his products; or to interrupt deliveries
of supplies to the premises. The important fact of the situation is that the
union seeks to cause economic loss to the business during the period that the
employer refuses to comply with the union's demands.
And the employees who choose to continue working, while the union is
applying this economic hurt to the employer, cannot escape a share of the
damage caused to the business on which their livelihood depends. Damage to
the employer during such picketing is a like damage to his employees. That
the pressure thus exerted upon the employees-depriving them of the oppor-
7 Russo, an officer of the Respondent Union, testified that the authorization cards
which were allegedly signed by 12 of the 23 employees at the Sterling store were not
shown to Vanausdall, Piggly-Wiggly's vice president, because he never asked to see them,
although the Union was ready to do so at all times.
MURRAY PLOPPER, DIRECTOR OF ORGANIZATION, ETC. 367
tunity to work and be paid-is a form of coercion cannot be gainsaid. There
is nothing in the statutory language of Section 8 (b) (1) (A) which limits the
intendment of the words "restrain or coerce" to direct application of pressure
by the respondent union . . . [upon] the employees. The diminution of their
financial security is not the less damaging because it is achieved indirectly
by a preceding curtailment of the employer's interests.
Accordingly, it is found that the Respondent Union by picketing for recognition
as the exclusive bargaining representative, when it did not represent a majority of
Piggly-Wiggly's Sterling employees, restrained and coerced said employees in the
exercise of the rights guaranteed them by Section 7 of the Act, thereby violating
Section 8 (b)(I)(A) 8
Respondent's contention that in addition to recognition, its objective in picketing
was to protest Piggly-Wiggly' s actions in polling its employees and its refusal to
bargain with the Union, which was the cause for its loss of majority status, does
not change the conclusion reached above as the Trial Examiner is precluded from
inquiring into whether this justified the Respondent's picketing. The charges filed
with the Board by the Union alleging the polling and the refusal to bargain were
dismissed by the General Counsel who refused to issue a complaint. It is well
established that disposition of charges filed is within the exclusive province of the
General Counsel. Section 3(d) of the Act confers upon the General Counsel "final
authority, on behalf of the Board, in respect of the investigation of charges and
issuance of complaints under Section 10, and in respect of the prosecution of such
complaints before the Board." The Trial Examiner, therefore, may not inquire
into the correctness of the General Counsel's administrative determinations when
he refused to issue a complaint based upon the Union's charge that the Company
committed unfair -labor practices in polling its employees and insisting that the
authorization cards signed by 12 of the 23 employees was not a sufficiently substan-
tial majority.9
The Union's argument that regardless of its activities aimed at securing recogni-
tion that nevertheless, the Company's polling the employees and refusing to recog-
nize the Union legally justified it in advertising to the public by the leaflets it
distributed alleging that the Company was unfair is not here decided. Inasmuch
as Respondent has already been found to have violated Section 8 (b) (1) (A) of the
Act, discussion of the leaflet distribution incident would be cumulative in nature as
the same kind of restraining order will issue whether predicated on one or more
violations of the Act because it has already been held, supra, that the Respondent
violated the Act in continuing to picket for recognition after it had been determined
in a Board-conducted election that it did not represent a majority of the employees.
'International Association of Machinists, Lodge 942, AFL-CIO (Alloy Manufacturing
Company, etc.), 119 NLRB 307 (postelection oral requests to customers and publication
of the company name on a union "we do not patronize list") ; International Union of
Operating Engineers, Local Union No. 12 (Shepherd Machinery Company), 119 NLRB
820; International Brotherhood of Teamsters, etc, Local 641 ( Buffalo's Trucking
Service, Inc ), 119 NLRB 1268; Joint Council of Sportswear, etc., Workers Union
(Harou, Inc , and En Tour), 120 NLRB 659; Retail Store Employees Union, Local 1595
(J. C Penney -Co, Store No. 309), 120 NLRB 1535; Paint, Varnish it Lacquer Makers
Union, et al. (Andrew Brown Company), 120 NLRB 1425 ; Building Material it Dump
Truck Drivers Local No 420, International Brotherhood of Teamsters, etc (Fisk it
Mason), 120 NLRB 135; New Furniture it Appliance Drivers, etc, Local Union No 196,
International Brotherhood of Teamsters, etc, AFL-CIO, at al (Biltmore Furniture
Manufacturing Corporation etc.), 120 NLRB 1728; General Teamsters, etc, Local No
912, etc. (H. A. Rider it Sons), 120 NLRB 1577; International Association of Machinists,
Local Lodge No. 311, AFL-CIO, et al . (Machinery Overhaul Company, Inc.), 121 NLRB
1176; International Brotherhood of Teamsters, etc, Local Union No. 182, etc. (The
Alling it Cory Company), 121 NLRB 315 ; Department Store Employees Union, Local 1100,
AFL-CIO, et al. (Lane Bryant San Francisco, Inc.), 121 NLRB 688; United Rubber,
etc., AFL-CIO, and its Local 511 (O'Sullivan Rubber Corporation), 121 NLRB 1439;
Local 1922, International Brotherhood of Electrical Workers, AFL-CIO (Mid-Island
Electrical Sales Corp, et al ), 122 NLRB 850.
9 Frank A. Hourihan v N L R B., 201 F. 2d 187 (C A., D C.), cert. denied 345 U S. 930,
rehearings denied 345 U.S 961 and 346 U S. 843, 880, and 917; United Brotherhood of
Carpenters and Joiners of America, Local Union No. 978, AFL-CIO, et al. (Kenneth
Markwell and William Hartz, partners d/b/a Markwell it Hartz Contractors), 120
NLRB 610, 612; Times Square Stores Corporation, 79 NLRB 361, 364-365, Colonial
Provision Company, Inc., 112 NLRB 1056, 1058; Hughes Tool Company, 104 NLRB
318, 323 See Davis-Administrative Law 160-167, 846-848 (1951)
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore , no good purpose could be served in considering the validity of the
Union 's additional contention that its right to advertise to the public the Company's
alleged unfair labor practices constitutes a protected exercise of free speech guar-
anteed by the Constitution of the United States.
THE REMEDY
Having found that the Respondent Union has engaged in unfair labor practices
in violation of Section 8(b) (1)'(A) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action in order
to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record,
the Trial Examiner makes the following:
a
CONCLUSIONS OF LAW
1. Local #98, Retail Clerks International Association , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. By picketing Piggly-Wiggly 's Sterling , Illinois, store for the purpose of coercing
and restraining the employees of said Employer , Respondent Union has engaged
in and is engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) and Section 2(6) and (7) of the Act.
3. The violative activities of Respondent set forth immediately above, occurring
in connection with the operations of the Company described in Findings of Fact
above, have a close, intimate , and substantial relation to trade, traffic , and com-
merce among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL #98, RETAIL CLERKS INTERNATIONAL
ASSOCIATION, AFL-CIO
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
WE WILL NOT restrain or coerce the employees of Piggly-Wiggly 's Sterling,
Illinois, store , in the exercise of the rights guaranteed to them in Section 7 of
the Act, including the right to refrain from engaging in any or all of the
activities guaranteed thereunder.
LOCAL #98, RETAIL CLERKS INTERNATIONAL
ASSOCIATION , AFL-CIO,
Labor Organization.
Dated---------------- By----------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered, defaced, or covered by any other material.
J. G. Braun Company I and Local 781, Miscellaneous Warehouse-
men Union , I.B.T. Case No. 13-CA-2988. January 29, 1960
DECISION AND ORDER
On July 27, 1959, Trial Examiner James T. Rasbury issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
1 The Respondent 's name appears as amended at the hearing.
126 NLRB No. 7.