Acme Markets, Inc,.

National Labor Relations Board - Board Decisions

Feb 14, 1966

156 N.L.R.B. 1452 (N.L.R.B. 1966)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist the above-named or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL bargain collectively , upon request , with International Typographical
Union, as the exclusive representative of all employees in the bargaining unit
described below with respect to rates of pay, wages, hours of employment, and
other conditions of employment , and if an understanding is reached , embody
such understanding in a signed agreement The bargaining unit is:
All of our production and maintenance employees at our Sylacauga
plant, including pressroom employees , stereotype and plating room employ-
ees and mailing room (shipping) employees, but excluding all office clerical
employees, professional and technical employees , j anitors, guards, and
supervisors as defined in the National Labor Relations Act.
All our employees are free to become, remain, or refrain from becoming members
of the above-named Union or any other labor organization
DIXIE COLOR PRINTING CORP.,
Employer.
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
provisions , they may,communicate directly with the Board 's Regional Office, 528
Peachtree -Seventh Building , 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. 526-5741.
Acme Markets, Inc. and Retail Store Employees Union , Local 692,
RCIA, AFL-CIO. Case No. 5-CA-2819. February 14, 1966
DECISION AND ORDER
Upon charges duly filed by Retail Store Employees Union, Local
692, RCIA, AFL-CIO, herein called the Union, the General Counsel
of the National Labor Relations Board, by the Regional Director for
Region 5, issued a complaint dated October 21, 1964, against Acme
Markets, Inc., herein called the Respondent, alleging that the Respond-
ent had engaged in and was engaging in unfair labor practices within
the meaning of Sections 8(a) (1) and (3) and 2(6) and (7) of the
National Labor Relations Act, as amended. Copies of the charge,
complaint, and notice of a hearing before a Trial Examiner were duly
served upon the Respondent and the Union. On November 2, 1964,
the Respondent filed its answer admitting certain allegations of the
complaint, but denying the commission of any unfair labor practices.
Thereafter, on January 13, 1965, the parties agreed to submit the case
to the Board for decision on a complete stipulation of facts which
expressly waived a hearing before a Trial Examiner and a Trial
Examiner's recommended findings of fact, conclusions of law, and
order. The Board having authorized such submission of the case and
156 NLRB No. 127.
ACME MARKETS, INC. 1453
having received and considered briefs filed by the General Counsel,
the Respondent and the Union hereby finds the facts to be as
stipulated.
FINDINGS OF FACT
1. THE BUSINESS OE THE RESPONDENT
The Respondent , Acme Markets , Inc., is engaged in various States,
including Maryland, Delaware, and Pennsylvania , in the selling of
food and related products in retail stores . In the conduct of its busi-
ness operations in Maryland and Delaware during the last 12 months,
a representative period, the Respondent grossed in excess of $2 million.
In the same period , the Respondent purchased goods valued in excess
of $100,000 from outside the States of Maryland and Delaware, which
goods were eventually delivered to its stores located in those States.
The Respondent admits, and we find, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act and that it
will effectuate the purposes of the Act to assert jurisdiction in this
proceeding.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree and we find that Retail Store Employees Union,
Local 692, RCIA, AFL-CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent is a member of the Baltimore Food Employers'
Labor Relations Association, herein called FELRA, a multiemployer
bargaining association which bargains on behalf of a number of retail
grocery chains with the Union. Other members of the Association
are The A & P Tea Company, Food Fair Stores, Giant Food, Grand
Union, Penn Fruit Company, and Safeway Stores, Inc. The first
contract between the FELRA and the Union was executed in 1961
and expired on January 25, 1964. The bargaining unit covered by
this contract included grocery employees in all of the stores operated
by members of FELRA in the vicinity of Baltimore. In addition,
the unit includes grocery employees in stores of various members of
the FELRA in other communities in Maryland, Delaware, and Vir-
ginia. The Respondent operates, in addition to its Baltimore stores,
approximately 51 stores located on the Eastern Shore of Delaware,
Maryland, and Virginia. Except for two stores in Newark, Delaware,
the employees in these stores are unrepresented although the stores are
part of the same administrative division of the Respondent as its
stores in Baltimore and vicinity which are covered by FELRA bar-
gaining. In 28 of the 51 locations on the Eastern Shore, the Respond-
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent operates a nonunion store outside the FELRA bargaining unit in
close proximity to a store operated by a member of FELRA which is
covered by multiemployer collective bargaining.
On January 7, 1964, FELRA and the Union began negotiations for
a new contract to replace the contract which was scheduled to expire
on January 25, 1964. Bargaining continued for a period of 3 months
but no agreement was reached. On April 17, 1964, the Union called
a strike against all of the Respondent's unit stores. No strike was
called against the unit stores of the other FELRA members. The
members of FELRA had an agreement that if such a situation should
occur, all of the other FELRA members would close down their st ores
which were covered by the multiemployer bargaining unit in a defen-
sive lockout. Other members of FELRA thereupon closed down their
unit stores pursuant to this agreement.
The effect of such a defensive lockout, however, would have been
to leave 28 of Respondent's Eastern Shore stores open and operating
in communities where other members of FELRA had closed down
bargaining unit stores in accordance with the above agreement. In
the Respondent's judgment, this situation imperiled the multiemployer
bargaining unit and represented an obstacle to the carrying out of the
defensive lockout agreement. Accordingly, the Respondent shut down
its nonunit stores in the 28 locations on the Eastern Shore in which
stores of other members of FELRA would be shut down in accord-
ance with the agreement. This action by Respondent was not required
by any specific terms of the FELRA agreement but was taken by the
Respondent as the result of its conclusion, based on its judgment of
the situation, that such action was necessary to insure the carrying
out of the FELRA defensive lockout agreement and to preserve the
FELRA multiemployer bargaining unit. The following sign was
posted in the window of each of the 28 closed stores:
Sorry, store forced to close. This store is temporarily closed
because of circumstances beyond our control. We regret any
inconvenience. Acme Markets, Inc.
In a number of stores, an additional notice was posted indicating the
location of the nearest open Acme Store.
At the same time that these stores we're shut down, the Respondent,
decided that none of the employees in the 28 stores would lose any pay
or be disadvantaged in any way because of the shutdown. Accord-
ingly, employees in the Eastern Shore stores, whenever possible, were
given inventory or other such work in their own stores or work in
other stores which remained open. In some instances, employees had
to travel distances greater than they normally would travel in order
to go to work, and in other instances, they traveled shorter distances
than normal. In cases where there was not sufficient work available
ACME MARKETS, INC. 1455
to afford to employees their usual income, the Respondent made up
the difference. During the first several weeks of the strike, however,
a number of nonunit Eastern Shore employees experienced delays in
receiving their normal pay checks and an undetermined number of
these employees received less pay than they normally would have
received had their stores not been shut. When this situation was
brought to the attention of the Respondent's management, however,
the matter was corrected, and all employees whose stores were shut
have since been made whole in accordance with Respondent's policy.
On June 24, 1964, the six members of FELRA other than respond-
ent reopened all their stores and the Respondent reopened the 28
stores which it had closed on the Eastern Shore. All employees of
these stores were returned to their original jobs, wages, hours, and
working conditions and the stores have operated normally since that
time.
A. Issue
The parties agree that the lockout of unit employees by nonstruck
members of FELRA was a lawful multiemployer defensive lockout
under Buffalo Linen Supply Company.' The question in this pro-
ceeding is whether the Respondent violated Section 8 (a) (1) and (3)
of the Act by locking out employees in its 28 Eastern Shore stores
which were not included in the multiemployer bargaining unit
involved in the labor dispute with the Union.
B. Contentions o l the parties
The General Counsel argues that Respondent 's lockout of employ-
ees in its nonunit Eastern Shore stores violated 8(a) (1) in that it
interfered with the Section 7 rights of Eastern Shore employees to
refrain from collective bargaining and other concerted activities; and
that it violated 8 (a) (3) and (1) in that Respondent discriminated in
the terms and conditions of employment of these nonunit employees
in order to discourage unit employees from engaging in collective
bargaining and from participating in strike activity . The General
Counsel further contends that Buffalo Linen, which involved only
unit employees , is inapposite because the Respondent here locked out
nonunit employees . The Respondent , on the other hand, relies par-
ticularly on the Supreme Court decision in American Ship Building 2
and argues that there is no evidence of unlawful motivation to sup-
port a finding that the lockout violated Section 8 (a) (1) and (3) of
the Act. The Respondent further contends that its action was a per-
missible multiemployer lockout under Buffalo Linen.
1 N.L.R.B. V. Truck Drivers, Local Union No. 449, International Brotherhood of Team-
sters, etc., 353 U.S. 87 , affg., 109 NLRB 447.
2 American Ship Building Co. v. N.L.R.B., 380 U.S. 300.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions
We begin our analysis of the issues in this case by noting that the
parties concede that the lockout of unit employees by the nonstruck
members of FELRA was intended to preserve the integrity of the
multiemployer unit and was therefore lawful under Buffalo Linen.
Further, the parties here stipulated that the Respondent's lockout of
its Eastern Shore employees, the action whose lawfulness is in issue
here, was taken "as a result of Acmne's conclusion based upon its judg-
ment of the situation that the action was necessary to insure the carry-
ing out of the FELRA defensive lockout agreement and to preserve
the FELRA multiemployer bargaining unit." Plainly, then, the pur-
pose of the Respondent's lockout of the Eastern Shore employees was
not "to injure a labor organization or to evade its duty to bargain
collectively." 8
The General Counsel argues, however, that the lockout here did not
serve to protect the multiemployer bargaining unit because, unlike the
situation in Buffalo Linen, where employees in the multiemployer unit
were locked out, here the Respondent locked out nonunit employees.
We do not agree. In the particular circumstances of this case, we are
satisfied that even though the locked-out employees were not in the
unit, their lockout did serve to protect the integrity of the multi-
employer unit. The Supreme Court's decision in Brown Food 4 pro-
vides an analogy. In Brown Food, the nonstruck employers locked
out unit employees and hired temporary replacements for these
employees. The Board, while finding that the initial lockout by the
nonstruck employers was lawful, held that by hiring temporary
replacements, these employers went beyond their right to protect the
integrity of the multiemployer unit and therefore violated the Act.
In reversing the Board and finding the employer's entire course of
conduct lawful, the Supreme Court reasoned that since the struck
employer chose to operate with replacements, if the other employers
were not permitted to operate with replacements, the economic advan-
tage would pass to the struck employer, the nonstruck employer would
be deterred in exercising the defensive lockout, and the whipsaw
strike would enjoy "an almost inescapable prospect of success." These
considerations are equally applicable in the instant case. Here, non-
struck members of FELRA closed their unit stores to preserve the
integrity of the multiemployer unit. However, in 28 cities, the
Respondent operated nonunit stores which would have remained open
while unit stores, operated by other members of FELRA, remained
closed by virtue of the multiemployer defensive lockout. So, if the
3 American Ship Building Co. v. N.L.R.B., supra, 308.
4 N.L.R.B. v. Brown, et al ., d/b/a Brown Food Store , 380 U.S. 278.
ACME MARKETS, INC. 1457
Respondent were not permitted to close its stores in these 28 cities, the
economic advantage would have passed to the Respondent, the non-
struck employers would have been deterred from closing their stores
as part of the multiemployer defensive lockout and, as in Brown
Food, the whipsaw strike would have enjoyed an almost inescapable
prospect of success. We think it immaterial that in Brown Food the
disputed conduct was the hiring of temporary replacements by the
nonstruck employers while here it is the action of the struck employer
in laying off nonunit employees which is alleged to be unlawful, since
in both cases the conduct was designed to equalize the economic posi-
tion of the struck and nonstruck employers in the face of the whipsaw
strike and thus to serve the legitimate business end of preserving the
integrity of the multiemployer unit:
Notwithstanding these facts, which, as we have shown, establish
that the lockout here was intended to serve a legitimate business inter-
est of the Respondent, the General Counsel contends that the lockout
was unlawful because it trenched upon the Section 7 rights of East-
ern Shore employees in violation of 8(a) (1). More specifically, the
General Counsel argues that the lockout propelled nonunit employees
into a dispute not their own and thus necessarily forced them into
engaging in concerted activity, thereby interfering with the Section 7
rights to refrain from engaging in concerted activity. We reject this
reasoning. It seems clear to us that employees who are locked out
from their jobs are not being compelled to engage in concerted activ-
ity of any sort. Moreover, even apart from that consideration, we
note that the General Counsel has adduced no evidence to establish
that this asserted motive was in fact, the reason impelling the lockout
of nonunit employees. On the contrary, as we have already stated,
we are satisfied that the lockout was designed to serve the legitimate
business end of preserving the integrity of the multiemployer unit.
Finally, we think it relevant that the Respondent, although locking
out nonunit employees, made certain that, to the extent possible, they
would suffer no financial or other detriment because of the lockout.
It is true, as the General Counsel points out, that where there is dis-
criminatory activity, the existence of loss of employment or wages is
not necessarily determinative of whether an unfair labor practice has
been committed. But where, as here, the question is whether the
employer's conduct was improperly motivated, we believe that action
taken by the employer to, ensure that his employees would suffer no
loss is strong evidence that his motive was not to coerce employees in
the exercise of their Section 7 rights.
The General Counsel further contends that the lockout interfered
with, restrained, and coerced Baltimore unit employees and discour-
aged them from engaging in union activity in violation of Section
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 (a) (3) and (1) of the Act. It is apparently his theory that since
the lockout of nonunit employees admittedly was calculated to assist
other employer-members of FELRA to implement their defensive
lockout, the lockout of such nonunit employees had the natural,and
foreseeable effect of discouraging striking unit employees from con-
tinuing to engage in their lawful strike and of discouraging non-
striking unit employees from engaging in future strikes.
We likewise reject this argument. The record contains neither spe-
cific evidence that the purpose of the lockout of nonunit employees
was to discourage unit employees from engaging in union activity
nor general evidence of union animus by the Respondent. Indeed, we
have emphasized that the lockout of nonunit employees was con-
cededly designed to aid employer-members of FELRA in attempting
to protect the integrity of the multiemployer unit. In these circum-
stances, and since under Buffalo Linen the lockout of unit employees
may not be found to have had an unlawful purpose, it is difficult to
discern a basis for finding that the lockout of nonunit employees,
aimed at achieving the same purpose as the unit lockout, was unlaw-
fully motivated vis-a-vis the unit employees.
In sum, as the lockout here was designed to serve the legitimate
business end of protecting the integrity of the multiemployer unit,
we do not view the Respondent's conduct here complained of as
"demonstrably so destructive of employee rights" r, or "inherently so
prejudicial to union interests and so devoid of significant economic
justification that no specific evidence of intent to discourage union
membership or other anti-union animus is required." 6 And as the
record here contains no such specific evidence of hostile motivation
or discriminatory intent, we conclude that the Respondent has not
violated Section 8(a) (1) and (3) of the Act. Accordingly, we shall
dismiss the complaint in its entirety.?
[The Board dismissed the complaint.]
5 N.L.R.B. v. Brown , Supra, 286.
6 American Ship Budding v. N.L.R.B., .supra, 311.
7 On April 26 , 1965, the Union filed a motion requesting the Board to reopen the record
and remand the case to a Trial Examiner for the purpose of taking additional testimony
in view of the Supreme , Court's decision in Brown Food, which issued after the parties
entered into the stipulation of facts herein. The General Counsel joined in this motion
and the Respondent filed an opposition thereto. On June 3, 1965 , the Board informed
the parties that it would not rule on the motion to reopen and remand until the parties
had had an opportunity to file briefs on the merits. We have carefully examined the
various items of evidence which the Union proposes to'present at a reopened hearing and
we conclude that a number of these items are irrelevant to the issue in this case and that,
as to the remaining items, the Union has not made sufficiently specific offers of proof
respecting the evidence it proposes to introduce, and in any event the stipulation 'of th6
parties is sufficient to pass on the issues presented. The motion is accordingly denied.
UNIVERAL MANUFACTURING CORP. OF MISSISSIPPI 1459
MEMBER BROWN, concurring:
The Employer's closing of stores to the public while continuing to
pay employees' wages in these stores does not, in my opinion, constitute
a lockout in the present circumstances. I therefore agree with my
colleagues that there was no meaningful discrimination against the
nonunit employees, and for that reason I join in dismissing the
complaint.
Universal Manufacturing Corporation of Mississippi and Inter-
national Brotherhood of Electrical Workers, AFL -CIO-CLC,
Petitioner. Case No. 15-RC-3061. February 14, 1966
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to the provisions of a Stipulation for Certification upon
Consent Election, approved March 25, 1965, an election by secret
ballot was conducted April 23, 1965, under the direction and super-
vision of the Regional Director for Region 15 in the unit which had
been found appropriate to determine whether the employees therein
desired to be represented by the Petitioner for purposes of collective
bargaining. Upon the conclusion of the balloting, the parties were
furnished with a tally of ballots showing that 567 of approximately
578 eligible voters cast ballots, of which 272 were for, and 287 were
against, the Petitioner, and 8 ballots were challenged. The number
of challenged ballots was insufficient to affect the election results.
Thereafter, Petitioner filed timely objections to conduct affecting the
results of the election.
After an investigation, the Regional Director issued his Report on
Objections on August 6, 1965, in which he recommended that the objec-
tions be overruled in their entirety. Petitioner then filed timely
exceptions to the Regional Director's Report.
Upon the entire record in this case, the National Labor Relations
Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
2. The Petitioner is a labor organization claiming to represent cer-
tain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
156 NLRB No. 132.
217-919-66-vol. 156-93