Smith's Hardware Co.

National Labor Relations Board - Board Decisions

Mar 29, 1951

93 N.L.R.B. 1009 (N.L.R.B. 1951)

SMITH'S HARDWARE COMPANY 1009
MR. AND MRS. GARLAND W. COOPER D/B/A S1IIITH's HARDWARE COM-
PANY, PETITIONER and LOCAL UNION No. 983, RETAIL CLERKS INTER-
NATIONAL ASSOCIATION, AFL. Case No. 35-RM-30. March 29,
1951
Decision and Order
Upon a petition duly filed by the Employer under Section 9 (c) of
the National Labor Relations Act, a hearing was held before William
A. McGowan, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
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 Herzog and Members Houston and
Reynolds]. -
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
On May 22, 1950, the Union notified the Employer that it believed
it represented a majority of the sales employees in the Employer's
establishment, and requested a conference to negotiate a contract. Two
days later the Employer filed its petition herein. Shortly thereafter,
the Union began picketing the Employer's premises, using placards
which asserted that the Employer was unfair to Local No. 983 and
refused to negotiate with it. Picketing continued from that date on.
On October 26, 1950, however, the Union sent the Employer a letter in
which it withdrew a partial proposal and agreement it had offered in
an earlier meeting and stated that it no longer had any members work-
ing for the Employer, and made no further claim, as of that date, that
it represented any of the Employer's employees. On or about the date
of this disclaimer, the placards carried by the Union's pickets were
changed to read : "This firm does not employ members of the Retail
Clerks Union. Please do not patronize. Retail Clerks Union, Local
No. 983."
At the hearing the Union contended that the petition should be dis-
missed, because it no longer claimed to represent any of the Employer's
employees. The Employer contends that the Union's disclaimer is
insincere and equivocal in view of the continued picketing, and other
actions inconsistent with the disclaimer, for which it considers the
Union responsible. These are that the Employer's name appears on
93 NLRB No. 187.
943732-51-65
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an "unfair employer list" prepared by the Terre Haute Central Labor
Council; that union members who have purchased goods from the
Employer have been threatened with fines or discharge; and that the
board of commissioners of Vigo County, in which Terre Haute is
located, has inserted in its proposals soliciting bids for furnishing
hardware supplies, on which the Employer has successfully bid in the
past, a provision that any contract awarded will be considered null
and void during such time as a strike or picket line is established at
or with the successful bidder.'
These allegations of the Employer were not conclusively proven, as
much of the testimony on the Employer's behalf which related to the
Union's activities was hearsay evidence. But even if the Employer's
contentions could be established by probative testimony, the Board
would not regard them as necessarily inconsistent with the Union's
disclaimer.2 The "unfair employer" listing and the pressure on union
members and governmental bodies to induce them to cease doing busi-
ness with the Employer.are admittedly forms of economic coercion.
Although they may be more intensive means of pressure, they do not
differ in principle from picketing activities which are directed to
organizing employees and enlisting the public's aid for the Union.
Nothing that the Union has done since its disclaimer therefore belies
its announcement and admission that it does not represent anyone
employed by the Employer. The fact that it is engaged in a campaign
to organize those employees, by advising the public and soliciting its
support to put economic pressure on the Employer, clearly indicates
a desire on the Union's part ultimately to bargain on their behalf, but
it does not indicate that it presently claims to represent them.3 The
Board has jurisdiction to direct an election only when the statutory
requirement that a question of representation exists has been met. As
we have found that in this case the use of economic pressure by the
Union is not such as to contravene its express disclaimer of designation
as representative by any of the Employer's employees, we shall dismiss
the petition.
Order
IT IS HEREBY ORDERED that the petition herein be, and it hereby is,
dismissed.
1 After the close of the hearing the Employer ' s attorney filed an affidavit with the
Board alleging that the Employer had been awarded a contract for supplies by the Vigo
County board of commissioners , but that it has since been advised by the commissioners
that-the contract will not be carried out until the picketing at the Employer 's premises
ceases. The affidavit further states that the business agent and secretary of Local 983
induced the commissioners to take this action.
2 Furthermore , many of the specific incidents , related on the Employer ' s behalf, seem to
have occurred before the date on which the Union filed its disclaimer.
1Hubach and Parkinson Motors, et at, 88 NLRB 1202; Bur-Bee Company-Walla
Walla, Inc., 90 NLRB 9.