Retail Store Employees Union, Loc. 876

National Labor Relations Board - Board Decisions

Jun 27, 1974

212 N.L.R.B. 113 (N.L.R.B. 1974)

RETAIL STORE EMPLOYEES UNION, LOC. 876
Retail Store Employees Union, Local No. 876, Retail
Clerks International Association, AFL-CIO and
Barbara Frazier. Case 7-CA-9881(3)
June 27, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
On February 26, 1974, Administrative Law Judge
AlvinLieberman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order dismissing the com-
plaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Administrative Law Judge: The trial in
this proceeding, with all parties represented, was held before
me in Detroit, Michigan, on several days between October
17 and 24, 1973, upon the General Counsel's complaint,'
dated March 13, 1973, and Respondent's answer.
I. JURISDICTION
The complaint alleges, and the answer admits, that Re-
spondent, whose principal office is located in Detroit, Mich-
igan, is a labor organization chartered by Retail Clerks
International Association, AFL-CIO (R.C.I.A.). The com-
plaint further alleges, and the answer also admits, that dur-
i The complaint was issued pursuant to a charge filed on October 17, 1972,
by Barbara Frazier alleging that her discharge by Respondent was violative
of the National Labor Relations Act
113
Ing 1972 Respondent transmitted in excess of $100,000 in
per capita taxes directly from Detroit to R.C.I.A., in Wash-
ington, D.C., where its headquarters are maintained. Ac-
cordingly, I find that Respondent is engaged in commerce
within the meaning of the National Labor Relations Act, as
amended (the Act), and that the assertion of jurisdiction
over this matter by the National Labor Relations Board (the
Board) is warranted. Chain Service Restaurant, Luncheonette
& Soda Fountain Employees, Local 11, AFL-CIO, 132
NLRB 960, 961, enfd. in this respect 302 F.2d 167 (C.A. 2,
1962).
11 THE PLEADINGS AND RESPONDENT'S MOTION TO DISMISS THE
COMPLAINT FOR FAILURE TO STATE A CLAIM
The complaint alleges that at all material times Barbara
Fraizer and her husband, Curtis Frazier, "were regular and
full dues paying members of the Respondent in good stand-
ing";2 that Barbara Frazier had been employed by Re-
spondent;3 and that on October 13, 1972,4 Respondent
discharged Barbara Frazier 5 "because of [her] and/or her
husband's refusal to support Horace Brown for the position
of respondent's secretary-treasurer and because of her and/
or her husband's refusal to support the internal union cam-
paign to oust the then incumbent secretary-treasurer, Her-
schel Womack." 6 The complaint further asserts, as a
conclusion of law, that by discharging Barbara Frazier for
the reason set forth above Respondent violated Section
8(a)(1) and (3) of the Act.7
Except with respect to Barbara Frazier's employment by
Respondent and her discharge on October 13, the answer
denies all the foregoing allegations of the complaint. It also
avers that "the Complaint fails to state a claim upon which
relief can be founded."
At the outset of the trial, Respondent orally moved to
dismiss the complaint on the ground that it^ did not state
"cause of action." After hearing argument, I reserved deci-
2 This allegation was added to the complaint by way of amendment during
the trial
3 Barbara Frazier and her husband were reqwred to be members of Re-
spondent as a condition of their employment.
4 All dates hereinafter mentioned without stating a year fall within 1972.
5 Curtis Frazier, who had also been employed by Respondent, was dis-
charged on October 16.
6 In about August 1972, Brown, who was then Respondent's president, but
not, as his title would imply, its highest official, mounted a drive to remove
Womack from his position as Respondent's secretary-treasurer and chief
executive officer Womack ultimately resigned and, on October 2, Brown
succeeded to his position.
In pertinent part these sections provide
Sec 8(a) it shall be unfair labor practices for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed in section 7 .
(3) by discrimination in regard to hire or tenure of employment.
to encourage or discourage membership in any labor organization
Section 7, insofar as relevant, states*
Sec. 7. Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through repre-
sentatives 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 and all such
activities.
212 NLRB No. 31
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sion on this motion, which I now grant .8
On January 16, 1974, Respondent, in writing, renewed its
motion to dismiss the complaint, asserting that the Board's
"decision ... in Retail Clerks Union, Local 770 [Retail
Clerks International Association, AFL-CIO (Local 770)], 208
NLRB No. 54, decided January 14, 1974, requires dismissal
herein." This assertion is contested in a brief submitted by
the General Counsel, which I have carefully considered.
Iii THE BOARD 'S DECISION IN LOCAL 770
In Local 770, a complaint issued alleging that a union
violated Section 8(a)(1) and (3) of the Act by discharging six
employees, whose employment was conditioned upon their
membership in the union, because they supported and cam-
paigned for the unsuccessful candidate for the presidency of
the union. The facts in Local 770, as summarized by the
Board , are as follows:
The record evidence shows that Respondent [Local
770] is a local union with approximately 25,000 mem-
bers. It has an office staff composed of approximately
100 employees. These employees are under the direc-
tion and control of the union president who serves as
the chief executive officer in charge of the administra-
tive offices. None of Respondent's employees are rep-
resented by an outside labor organization and all are
required as a condition of employment to become
members of Respondent Union after 30 days.
With respect to the six employees in question, the
evidence shows that they were all discharged on No-
vember 12, 1971, the day after the intraunion election.
All had been active during the election campaign and
had openly supported the candidacy of President De-
Silva's opponent. They attended meetings, stuffed en-
velopes, and passed out literature for the opposition
candidate. One of the employees performed functions
for the opposition candidate commonly associated
with those of a campaign manager. Several of the em-
ployees allegedly made remarks favorable to the oppo-
sition candidate to union members at the union offices.
The decision to discharge the six employees was
made solely by the president (and chief executive offi-
cer) of Respondent. At the time of the discharge, Presi-
dent DeSilva stated that he took the action in the best
interest of the membership... .
The foregoing facts, the Board found, did not establish a
violation of either Section 8(a)(1) or (3) of the Act by Local
8 Upon completion of the arguments on Respondent's motion and after
reserving decision, I heard the evidence offered in connection with the
complaint's allegations and the answer's denials I informed the parties,
however, that I would decide Respondent's motion before considering the
evidence My reason for adopting this procedure. as was made plain, was that
should Respondent ' s motion be granted a decision on the evidence presented
would be obviated Accordingly, in dealing with Respondent's motion, mat-
ters outside the complaint which were presented during the evidentiary phase
of this proceeding have not been taken into account , except to the extent that
they are explanatory of the complaint, or have a bearing on the arguments
made in support of, or in opposition to, Respondent's motion
770. Concerning the latter, the Board concluded:
In order to find a violation of Section 8(a)(3) of the Act,
there has to be evidence to show that the discharges
were motivated by union animus and that the conduct
would have the foreseeable effect of either encouraging
or discouraging union membership. Here, we must
start with the fact that each of the six employees was
already a member of Respondent Union and that they,
like their fellow employees, were required to secure and
retain membership in the Union as a condition of em-
ployment. There is no evidence that any of these em-
ployees attempted to resign his membership. On the
contrary, their interest clearly was to effecting manage-
rial change within the organization itself, an objective
which required that they maintain their status as mem-
bers of the Union. Likewise, there is no evidence that
any of, these employees was engaged in concerted or
union activities in seeking a separate and independent
representative for the purpose of collective bargaining
with Respondent. Accordingly, in view of the lack of
any evidence of encouragement or discouragement of
union membership by those who were discharged, we
shall dismiss the complaint insofar as it alleges a viola-
tion of Section 8(a)(3) of the Act.
The Board then gave consideration to whether the dis-
charge of the six employees in question for supporting De-
Silva's opponent for the union's presidency was
transgressive of Section 8(a)(1) of the Act. In holding that
it was not the Board had the following to say:
Turning to the question of whether the discharge of the
six employees by Respondent violated Section 8(a)(1)
of our Act, we would reiterate the fact that these em-
ployees were not engaged in organizing activities for
the purpose of seeking a separate and independent rep-
resentative. Nor were they seeking to redress griev-
ances within the framework of the existing
employer-employee relationship. Rather, it would seem
that the thrust and purpose of their activities was to
effect a change in the top management of their Em-
ployer Union, the election activities merely serving as
the means by which this goal could be accomplished.
However, an employee of a union, like any other em-
ployee, has no protected right to engage in activities
designed solely for the purpose of influencing or pro-
ducing changes in the management hierachy. Nor, in
pursuing such an object, are the employees in any more
favorable posture when these efforts are directed to-
wards a group outside the internal organization itself,
such as the union membership or the stockholders of
a corporation. An attempt by the dischargees to influ-
ence the selection of their chief executive officer is not
brought within the protection of the Act because the
employer happens to be a union. . . Consequently,
for the reasons set out above, we find that
Respondent's conduct does not violate Section 8(a)(1)
of the Act.
RETAIL STORE EMPLOYEES UNION, LOC. 876 115
IV THE RESOLUTION OF RESPONDENTS MOTION
It is settled law that in considering a motion to dismiss a
complaint for failing to state a cause of action all its well-
pleaded allegations are deemed to be admitted? In con-
formity with this principle it must be taken as true that
Respondent, a union, discharged its employee-member,
Barbara Frazier, because, as stated in the complaint, she
refused "to support Horace Brown for the position of
Respondent's Secretary-Treasurer and because of her .. .
refusal to support the internal union campaign to oust the
then incumbent secretary-treasurer, Herschel Womack."10
In other respects the material averments of the complaint
in the instant case resemble the factual findings made in
Local 770 with two exceptions. The complaint does not
allege that Barbara Frazier, whose discharge is the subject
of this proceeding, was required, as a condition of her em-
ployment by Respondent to be a member of Respondent.
Nor does it allege that Barbara Frazier was not represented
by an outside labor organization. The evidence, however,
furnishes what was omitted. As Womack, Respondent's for-
mer secretary-treasurer testified, it was "a requirement for
employment with the union" that Barbara Frazier "belong
to the union," and Barbara Frazier, herself, indicated that
she was not represented by an outside labor organization.
This being the case, it seems to me that the Board's deci-
sion in Local 770 dictates the granting of Respondent's
motion to dismiss the complaint. The General Counsel
takes a contrary position. He argues, in essence, that be-
cause, as shown by the evidence, Barbara Frazier did not
actively support Womack in the intraunion campaign
waged by Brown to unseat Womack and succeed to
Womack's position, but merely refused to support Brown in
9 The same rule does not apply to "legal conclusions cast in the form of
factual allegations ." Pauhng v McElroy, et al., 278 F.2d 252, 254 (C.A D.C ).
cert. denied 364 U S 835
10 See In . 6, above, for a gloss on this allegation of the complaint.
his efforts to attain those ends, Respondent's consequent
discharge of Barbara Frazier was violative of Section 8(a)(1)
of the Act. I do not agree. tl
The General Counsel thus draws a distinction between
supporting one aspirant for union office by employee-mem-
bers of the union, as was engaged in by the employee-
members in Local 770, and the refusal to support the other,
as is the situation here. But this, as I see it, insofar as this
proceeding is concerned, is a distinction without a differ-
ence. In the context of this case both are merely opposite
sides of the same coin. The Board's rationale, expressed in
Local 770, in finding no violation of the Act in a union's
discharge of employee-members who campaigned for a los-
ing contender for union office, also covers, in my opinion,
a discharge for refusing to support the winner.
Accordingly, on the authority of Retail Clerks Union, Lo-
cal 770 Retail Clerks International Association, AFL-CIO,
208 NLRB No. 54, and pursuant to Section 102.35 (h) of the
Board's Rules and Regulations, Respondent's motion to
dismiss the complaint is granted.
ORDER
Respondent having moved to dismiss the complaint is-
sued herein on March 13, 1973, for failing to state a cause
of action, due deliberation having been had thereon, and
good cause appearing therefor, it is ordered that the com-
plaint herein be, and the same hereby is, dismissed.
11 In his brief the General Counsel appears to argue that Barbara Frazier's
discharge was violative only of Sec. 8(a)(1) of the Act. Concerning the
complaint 's allegation that the discharge was also an unfair labor practice
within the meaning of Sec. 8 (a)(3), the General Counsel merely states in a
footnote that "The Board in Local 770 found that, since the employees
involved were union members and did not resign from membership, there
was no evidence of encouragement or discouragement of membership with
[sic] Section 8(a)(3) of the Act " It seems , therefore , that the General Counsel
is not pressing the 8(a)(3) aspect of the complaint Even if this is not the case,
and the General Counsel still stands upon the complaint 's conclusional alle-
gation that Respondent 's termination of Barbara Frazier's employment was
violative of Sec . 8(a)(3), it is my opinion, in view of what the Board said in
Local 770, that this allegation lacks ment