Retail Clerks Int'l Association, Local No. 1439

National Labor Relations Board - Board Decisions

Apr 2, 1962

136 N.L.R.B. 778 (N.L.R.B. 1962)

77S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that unions and their members were so selfishly concerned with adding to the pay
envelope that they failed to consider the employer 's problems of marketing-that
unless business increased wages could not. And it may be considered common
knowledge in the labor-management field that for many years labor organizations
representing garment workers have developed a number of mutually beneficial
"promotions" to increase both business and wages.
That the promotional fund issue is not unique General Counsel conceded during
the hearing , and agreed that in a number of industries similar provisions are written
into contracts.
While it would not, of course , been an unfair labor practice within the meaning
of Section 8(a)(5) for the employer in this case to have refused to sign a contract
containing this provision-the Act specifically providing that concessions are not
compulsory-the Trial Examiner is unable to conclude that the Respondent violated
Section 8 (b) (3) and (1) (A) of the Act by demanding acceptance.
It will therefore be recommended that the complaint be dismissed.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law the Trial Examiner
recommends that the complaint be dismissed in its entirety.
Retail Clerks International Association , Local No. 1439, AFL-
CIO and Spokane Labor Council and Retail Clerks Interna-
tional Association , Local No. 1439 , AFL-CIO and Milo Ames
and Ralph C. Whittle d/b/a Ames IGA Foodliner . Cases Nos.
19-CP-04 and 19-CP-30. April ;?, 1962
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of Ames Food-
liner on March 30, 196J, and on July 3 and 7, 1961, against the Re-
spondents, Local 1439 of the Retail Clerks Union and the Spokane
Labor Council. Thereafter, on August 2, 1961, the General Counsel
of the National Labor Relations Board by the Regional Director for
the Nineteenth Region issued a consolidated complaint and notice of
hearing, alleging that the aforementioned Respondents violated Sec-
tion 8(b) (7) (B) of the Act by picketing the premises of Ames for
recognitional or organizational purposes within 12 months after a
valid election had been held pursuant to Section 9(c) of the Act.
On August 25, 1961, all parties entered into a stipulation and a
supplemental stipulation of November 20, 1961, waiving a hearing and
the taking of testimony before a Trial Examiner, the making of
findings of fact and conclusions of law by a Trial Examiner, and the
issuance of an Intermediate Report and Recommended Order. The
parties further agreed to submit the case directly to the Board for
findings of fact, conclusions of law, and an order based upon a record
consisting of the charges, as amended, the consolidated complaint, the
answers, and the stipulations, including testimony and exhibits ad-
duced at injunction proceedings in the United States District Court,
136 NLRB No. 66.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL NO. 1439 779
Eastern District of Washington, Northern Division, held on July 26,
1961.
On December 13, 1961, the Board approved the stipulations and
transferred the case to itself. Thereafter the General Counsel and
Respondents filed briefs.
Upon the basis of the stipulations and the entire record in the case,
the Board 1 makes the following :
FINDINGS OF FACT
1. JURISDICTION
Ames IGA Foodliner commenced business as a retail food store in
Spokane, Washington, in September 1960. Between September 1,
1960, and July 22, 1961, Ames did a gross volume of business of
$530,000 and sold goods that originated outside the State of Washing-
ton valued in excess of $100,000. On these facts, we find that Milo
Ames and Ralph C. Whittle, d/b/a Ames IGA Foodliner, are en-
gaged in commerce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Respondents, Local 1439 of the Retail Clerks International
Association, and the Spokane Labor Council, are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE 'UNFAIR LABOR PRACTICES
A. The facts
Shortly after commencing business in September 1960, Milo Ames
and his partner Ralph Whittle, d/b/a Ames IGA Foodliner, herein-
after called Ames, were approached by Jack Hamilton, a representa-
tive of Local 1439 of the Retail Clerks, and Andy Hottell, a repre-
sentative of the Meatcutters Union, about signing contracts with their
respective unions. Milo Ames indicated that selection of the unions
was up to the employees, and he stated that Ames would probably
like to have an election to determine the employees' desires. It is
clear that neither Union claimed to represent a majority of the em-
ployees when the demands for recognition were made. On January 6,
1961, the same union representatives met with a representative of
Associated Industries, an employer association representing Ames, to
discuss the possibilities of a contract for Ames' employees. The union
representatives were again advised that Ames wanted an election.
'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 [ Members Rodgers , Fanning,
and Brown].
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In February 1961, Ames was placed on the Spokane Labor Coun-
cil's "We Do Not Patronize" list at the request of both Unions. At a
subsequent meeting, the union representatives again rejected Ames'
proposal for an election. On March 2, 1961, picketing of the Ames
premises commenced . The picketing was conducted by a single picket
on behalf of the Spokane Labor Council and Local 1439 of the Retail
Clerks Union. The Respondents concede that such picketing was for
"organizational and recognitional purposes."
Upon petition of Ames, an expedited representation election was
held on March 16, 1961. The employees voted 8 to 1 against being
represented by the Retail Clerks 2 The results of the election were
certified on March 24.3 Picketing then ceased.
On or about March 27, 1961, picketing was resumed by the same
picket as before carrying a sign stating that Ames was on the "We
Do Not Patronize List." 4 A charge alleging violation of Section
8(b) (7) (B) was filed against the Retail Clerks Union on behalf of
Ames on March 30. Thereafter, on April 19, the General Counsel and
the parties concerned entered into an informal settlement agreement
in which the Retail Clerks agreed not to picket Ames for recognitional
or organizational purposes. Pursuant to this agreement, picketing
at the Ames premises again stopped.'
On June 30, 1961, picketing was once more resumed. Again the
same picket carried a sign with a legend identical to that carried before
with the exception that the words "Local 1439, Retail Clerks Union,"
were no longer on the sign. It is undisputed, however, that this picket
was provided and paid by the Retail Clerks Union. On July 3, 1961,
a charge was filed on behalf of Ames alleging that the Council's picket-
ing was violative of Section 8(b) (7) (B) of the Act, and on July 7
an amended charge was filed adding Local 1439 of the Retail Clerks as
a respondent. By letters dated July 5, the Retail Clerks advised the
Board's Regional Office, a Teamsters local, and Ames that the picket-
ing was not for recognitional or organizational purposes, but Was
being conducted for the purpose of procuring support for a "con-
sumer boycott" and to advertise that Ames was on the "WTe Do Not
Patronize" list. The letter to the Teamsters also advised that they
should continue to make deliveries to Ames. Since the resumption of
picketing on June 30, no demand for recognition has been made of
Ames.
2 The Meatcutters Union, for unexplained reasons , did not appear on the election ballot
3 No contention has been made that this was not a valid election within the meaning of
Section 8( b) (7) (B).
The General Counsel accepted Respondents ' assertion that the picket sign stated:
"Ames IGA Foodliner is on the `We Do Not Patronize List' of the Spokane Labor Council,
AFL-CIO, Retail Clerks Union, Local No 1439."
5 Picketing alleged in the instant complaint to be unlawful includes that engaged in
between March 27 and April 19 The settlement agreement of April 19, provided that no
further action would be taken "contingent upon compliance with the terms and provisions
thereof"
RETAIL CLERKS INT'L ASSOCIATION, LOCAL NO. 1439 781
On July 13,1961, the General Counsel of the Board, acting pursuant
to Section 10(l) of the Act, petitioned the United States District
Court for the Eastern District of Washington, Northern Division, for
an injunction against the picketing. The picketing was enjoined on
August 8.
At the hearing on the injunction petition, Mauk, president of the
Council, admitted upon interrogation by the court that Ames was ini-
tially placed on the "unfair" list' of the Council because Ames refused
to recognize or bargain with the Retail Clerks. Mauk then conceded
that Ames was still on the list for the same reason, namely, Ames' fail-
ure to recognize or bargain with the Retail Clerks.?
B. Discussion
The Respondents contend, inter alia,8 that the resumption of picket-
ing on June 30, 1961, was the responsibility of the Council, and that
in any event, it was lawful because it was for informational purposes.
They stress the fact that there were no demands for recognition made
upon Ames since the resumption of picketing. They also contend that
before picketing resumed, other unions, including the Teamsters
Union, were advised that it was for informational purposes and that
they should continue to make deliveries of goods or perform services
for Ames, despite the picketing.
The Respondents' contention as to responsibility for the picketing is
without merit. When picketing resumed on June 30, it was ostensibly
on behalf of the Council since all reference to the Retail Clerks had
been removed from the picket sign. Nonetheless, the record establishes
that the Retail Clerks, which had previously supplied the picket,
continued to provide and pay for the picket in question. Under all
the circumstances, we conclude that the Retail Clerks and the Council
were jointly responsible for such picketing.
The Respondents' contention that its picketing was informational
because other unions were advised that deliveries were not to cease, is
not persuasive. The Respondent Retail Clerks' letter to the Teamsters
Local, advising of the picketing, was dated July 5, 5 days after the
e As used by the court and the parties, the terms "unfair list" and "Do Not Patronize
list" are synonymous
'At page 68 of the record of the injunction proceedings , the following colloquy took
place:
The CouRT: Mr. Mauk, the reason that Ames was on the Unfair list [Do Not
Patronize list] was because they refused to recognize or bargain with the Retail
Clerks and the Meatcutters, isn't that right?
A. Yes sir.
The COURT: And that is the reason they are still on there , isn't that right?
A. Yes, sir.
s The Respondents also contend that the publicity proviso to Section 8(b) (7) (C) applies
to picketing allegedly violative of Section 8(b) (7) (B). We reject this contention inas-
much as the proviso's application is specifically limited to subparagraph ( C). See Irvins,
Inc., 134 NLRB 686; Woodward Motors, Inc., 135 NLRB 851.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picketing resumed and 2• days after the Respondent Council had been
served with notice that its picketing was alleged to be an unfair labor
practice under the Act. Moreover, the letter itself acknowledges that
picketing was already in progress because it states that "you are prob-
ably aware by now that Ames IGA Foodliner . . . is being picketed."
Finally, the admission by Mauk, president of the Council at the
hearing on the injunction petition that Ames was still on the "unfair"
list because Ames refused to recognize or bargain with the Retail
Clerks, is further evidence that the picketing was still being utilized
for the purpose of obtaining recognition.
We can only conclude that the Respondent Retail Clerks' attempts
to disassociate itself from the picketing while continuing to provide
and pay for the picket was simply a subterfuge designed to evade the
prior settlement agreement, while at the same time seeking recognition
through picketing "by" the Council. Respondent Clerks' belated
attempt to characterize its picketing as informational without either
an organizational or recognitional object is self-serving in our opinion,
particularly in view of the admission by Mauk that Ames was still
on the unfair list because it did not recognize or bargain with the
Retail Clerks, and substantiates our conclusion that the object of the
picketing continued to be for recognition.9 Accordingly, we find that
the picketing from June 30 until August 8, 1961, occurring after the
certification of a valid representation election, was for an unlawful
object and therefore violative of Section 8 (b) (7) (B) of the Act. We
similarly find that the picketing from March 27 until on or about
April 19, 1961, by the Retail Clerks, was also violative of Section
8(b) (7) (B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents as previously set forth, occurring
in connection with the operations of Ames, have a close, intimate, and
substantial 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 of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
and take certain affirmative action that we find necessary to effectuate
the policies of the Act. The Board has decided that in remedying
violations of Section 8(b) (7) (B), the remedial order shall require a
cessation of all recognition and/or organizational post-election picket-
ing for a period of 12 months, to be computed from the date the labor
P See The Evans Hotels, 132 NLRB 737; J. C. Penney Company, 120 NLRB 1535,
at 1536-1537.
RETAIL CLERKS INT'L ASSOCIATION, LOCAL NO. 1439 783
organization ceases its unlawful picketing, whether voluntarily or
involuntarily.10 Since the Respondents here picketed unlawfully
until enjoined on August 8, 1961, our cease and desist order shall run
for a period of 1 year from August 8, 1961. We shall also require the
Respondents, thereafter, to refrain from engaging in recognitional
and/or organizational picketing of Ames wherein within the preced-
ing 12 months a valid election shall have been conducted.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, we adopt the following:
CONCLUSIONS OF LAW
1. Milo Ames and Ralph C. Whittle, d/b/a Ames IGA Foodliner,
are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondents are labor organizations within the meaning of
Section 2 (5) of the Act.
3. By picketing Ames from March 27, until April 19, 1961, and
from June 30, until August 8, 1961, with an object of forcing and
requiring Ames to recognize and bargain with the Respondent Retail
Clerks Union as the collective-bargaining representative of Ames'
employees and of forcing and requiring Ames' employees to accept and
select the Respondent Retail Clerks as their bargaining representative,
although the Respondent Retail Clerks Union was not currently cer-
tified as such representative and a valid election had been held within
12 months under Section 9 (c) of the Act which the Respondent Retail
Clerks did not win, the Respondents engaged in unfair labor prac-
tices within the meaning of Section 8 (b) (7) (B) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
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, Retail Clerks
International Association, Local 1439, AFL-CIO, and the Spokane
Labor Council, their officers, representatives, and agents, shall:
1. Cease and desist from :
(a) Picketing or causing to be picketed, or threatening to picket,
Milo Ames and Ralph Whittle, d/b/a Ames IGA Foodliner, Spokane,
Washington, an object thereof being to force or require Ames IGA
Foodliner, to recognize or bargain collectively with the Respondent
Retail Clerks Union, or to force or require the employees of Ames
IGA Foodliner, to accept or select the Retail Clerks Union as their
10 Irvlns , Inc., supra.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative, for a period of 1 year from
August 8, 1961.
(b) Picketing or causing to be picketed, or threatening to picket
Milo Ames and Ralph Whittle, d/b/a Ames IGA Foodliner, for any
of the above-mentioned objects, where within the preceding 12 months
a valid election under Section 9(c) of the Act has been conducted
which the Respondent Retail Clerks did not win.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in the Respondents' business offices,
meeting halls, and places where notices to its members are customarily
posted, copies of the notice attached hereto marked "Appendix." 11
Copies of said notice, to be furnished by the Regional Director for
the Nineteenth Region, shall, after being duly signed by official rep-
resentatives of the Respondents, be posted by the Respondents im-
mediately upon receipt thereof and be maintained by them for 60 con-
secutive days thereafter. Reasonable steps shall be taken by the
Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Nineteenth Region signed
copies of the aforementioned notice for posting by Milo Ames and
Ralph C. Whittle, d/b/a Ames IGA Foodliner, if they are willing, in
places where notices to employees are customarily sosted. Copies of
said notice, to be furnished by the aforesaid Regional Director, shall,
after being signed by the Respondents as indicated, be returned forth-
with to the Regional Director for disposition by him.
(c) Notify the aforesaid Regional Director, in writing, within 10
days from the date of this Decision and Order, of the steps taken to
comply herewith.
11 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 "
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 1439, OF THE RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, AFL-CIO, AND TO THE SPOKANE LABOR
COUNCIL, AND TO EMPLOYEES OF AMES IGA FOODLINER
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, Milo Ames and Ralph C. Whittle, d/b/a Ames IGA Food-
liner, Spokane, Washington, where an object thereof is to force or
require Ames IGA Foodliner, to recognize or bargain with the
MAR-JAC POULTRY COMPANY, INC. 785
Retail Clerks Union, or its employees to accept or select the Retail
Clerks Union as their collective-bargaining representative, for a
period of 1 year from August 8, 1961.
WE WILL NOT picket, or cause to be picketed, or threaten to
picket, Milo Ames and Ralph C. Whittle, d/b/a Ames IGA Food-
liner, Spokane, Washington, where an object thereof is to force
or require Ames IGA Foodliner to recognize or bargain collec-
tively with the Retail Clerks Union, or its employees to accept or
select the Retail Clerks Union as their collective-bargaining repre-
sentative, where a valid election which the Retail Clerks Union
did not win has been conducted by the National Labor Relations
Board among the employees of Ames IGA Foodliner, within the
preceding 12 months.
RETAIL CLERKS INTERNATIONAL Associ-
ATION, LOCAL 1439, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
SPOKANE LABOR COUNCIL,
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.
Employees may communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street, Seattle, Washington,
Telephone Number Mutual 2-2300, Extension 553, if they have any
question concerning this notice or compliance with its provisions.
Mar-Jac Poultry Company, Inc.' and Local 454, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
CIO. Case No. 10-RM-311. April 2, 1962
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Kathryn M. Rossback, hear-
ing officer . The hearing officer 's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
3 The name of the Employer-Petitioner appears as amended at the hearing.
136 NLRB No. 73.