Capitol Market No. 1

National Labor Relations Board - Board Decisions

Jan 31, 1964

145 N.L.R.B. 1430 (N.L.R.B. 1964)

1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A contrary holding would, in our view, subvert the purpose of the
premature-extension rule since, by engaging in "premature" multi-
plant bargaining fora considerable period, the parties to a single-
plant contract could effectively prevent the employees covered by the
original contract from making a change in their bargaining repre-
sentatives at an appropriate time.
We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 ('b) of the Act :
All production and maintenance employees of the Employer at its
Silsby Street plant in Houston, Texas, excluding all other employees,
office clerical employees, professional employees, guards, and super-
visors as defined by the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS BROWN and JENKINS took no part in the consideration
of the above Decision and Direction of Election.
Kenneth Wong, Henry Lim, Harry Lim, Fook Lim, and Robert
Lim, Co-partners d/b/a Capitol Market No . 1; Capitol Grocery,
Inc. d/b/a Capitol Market No. 2, Petitioner 1 and Retail Clerks
Union Local 770, affiliated with Retail Clerks International
Association , AFL-CIO. Case No. 31-RM-937. January 31,1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) (1) (B) of the Na-
tional Labor Relations Act, a hearing was held before Hearing Officer
Floyd E. Folven. The Hearing Officer's rulings made at the hear-
ing 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 and it will effectuate the purposes of the Act to assert jurisdiction
herein.
2. The Union is a labor organization within the meaning of the Act.
3. The Employer seeks an election in a unit of food clerks employed
at its two retail food stores in Los Angeles, California. The Union
contends that the petition should be dismissed because it has disclaimed
any present interest in representing the employees who are the subject
of the petition, and that, therefore, no question concerning representa-
tion exists.
"As amended at the hearing.
145 NLRB No. 135.
CAPITOL MARKET NO. 1; CAPITOL MARKET NO. 2 1431
On March 18, 1963, the Union requested that the Employer sign a
contract covering all food clerks at both stores. The Employer re-
fused. The Union repeated its request on June 11, 1963, and stated
that unless the Employer signed a contract, the Union would picket
both stores. The Employer again refused, and the Union immediately
picketed both stores. The pickets patrolled at all seven entrances,
which are used by both employees and customers. The picket signs
were in Chinese and English and read : "Don't patronize this Chinese
Store" and "Please don't come to this Store."
On June 11, 1963, the Employer filed the present petition.
On June 13, 1963, the Union sent a telegram to the Employer pur-
portedly disclaiming any further interest in obtaining a contract and
withdrawing any prior request for recognition. The Union continued
the picketing without interruption, however, although the picket signs
were changed to read : "This store pays substandard wages and main-
tains substandard working conditions." The Union also continued to
solicit employees to sign authorization cards and to join the Union.
Section 9 (c) (1) (B) of the Act provides in substance that the Board
shall entertain an election petition filed by an employer only when the
employer is presented with a claim for statutory recognition. This
refers, obviously, to an immediate recognitional claim. Such a claim
may or may not be inferred from a union's picketing activities, depend-
ing on the particular circumstances. Picketing, without more, will
not be found to constitute a present claim for recognition under Sec-
tion 9(c) (1) (B) where its immediate object is not recognition, even
though it may have such ultimate object : for example where the picket-
ing is aimed only at organizing the employees so that ultimately, if
organization is successful, the union may present the employer with
a claim for recognition 2 The situation is different, however, where
in the context of other related events it appears that an object of the
picketing is to press upon the employer a demand for immediate recog-
nition. In the latter situation, there is a basis for finding the statutory
predicate for a petition under Section 9 (c) (1) (B).
It is quite true that a claim for immediate recognition does not be-
come irrevocable simply because it has once been made. Under certain
circumstances a union may effectively withdraw an earlier claim for
recognition, and thus remove the statutory basis for the petition?
But the fact of withdrawal is not established simply from its declara-
tion. Obviously, the Board is not compelled to find a valid and effec-
tive disclaimer just because the union uses the word, and regardless of
the other facts in the case. Thus, a purported disclaimer can scarcely
be credited if the union at the same time tells the employer that it
will continue to picket until the employer recognizes the union or
2 See Martano 's Complete Home Furnishings, 145 NLRB 604.
8 Andes Candles, Inc ., 133 NLRB 758; Mxratti's, Inc., 132 NLRB 699.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where the union engages in other conduct which in context is clearly at
variance with its asserted disclaimer. The question must be decided in
each case whether the union has in truth disclaimed, or whether its
alleged disclaimer is simply sham and for that reason not to be given
force and effect 4
In the instant case, the Union's demands of March 18 and June 11
leave no doubt that prior to the purported disclaimer of June 13
the Union was presenting the Employer with a claim for immediate
recognition. It is equally clear that the picketing which the Union
threatened and then initiated on June 11 was in furtherance of that
immediate recognitional claim. The sole question here is whether
the Union in good faith, and effectively, withdrew that claim when,
prompted obviously by the filing of the RM petition of which it had
just been apprised, it sent its telegraphic disclaimer, which it reiter-
ated at the hearing and in its brief. On this record we are satisfied
that it did not. Notwithstanding the disclaimers, the Union con-
tinued without interruption to picket as it had before, save for a
slight modification in the picket sign language, to which in the cir-
cumstances of this case we attach no special significance. Only 2 days
earlier, the Union had told the Employer that its picketing was
designed as a pressure device to force capitulation to its recognitional
demand. In the context of these other closely related events, we are
unable to conclude that the Union's purported disclaimer effectively
withdrew its prior unequivocal claims for immediate recognition or
otherwise altered the basic immediate recognitional objective of its
continued picketing. Rather, we find that the Union's entire course
of conduct is inconsistent with its expressed disclaimer.'
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of certain employees of the Employer
within the meaning of Section 9(c) (1) and Section 2(6) and (7) of
the Act.
4. The parties stipulated and we find that the following employees
of the Employer constitute a unit appropriate for the purposes of
collective bargaining within Section 9('b) of the Act:
All the employees employed by the Employer at 4617 North Hunt-
ington Drive and 256 South Atlantic Boulevard, Los Angeles, Cali-
fornia, excluding all office clerical employees, technical employees,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
4 See Peninsula General Tire Company, Inc, 144 NLRB 1459
6 Miratti's Inc., Andes Candies, Inc., and Martino's Complete Home Furnishings, supra,
are distinguishable on their facts. In Miratti's, unlike here, the union did not commence
picketing until a substantial time after the disclaimer, and the picketing was not for
present recognition. In Andes Candies, also unlike here, the employer had never been
presented with a claim to recognize the union And in Martin's, again unlike here, there
was no present demand for recognition , although one had been made almost 2 years earlier.
RED TOP CAB & BAGGAGE CO., ETC . 1433
MEMBER LEEDOM, concurring :
I concur only in the result'
MEMBER JENKINS took no part in the consideration of the above
Decision and Direction of Election.
6 See my dissent in Martino 's Complete Home Furnishings, 145 NLRB 604.
Red Top Cab & Baggage Co., Yellow Cab Company of Miami,
Checker Cab Operators , Inc., B & S Taxi Corp ., Yellow Cab
System and John A. Kurtz. Case No. 12-CA-2380. February 3,
1964
DECISION AND ORDER
On August 22, 1963, Trial Examiner A. Norman Somers issued his
Intermediate Report in the above-entitled proceeding, finding that Re-
spondents had engaged in and were engaging in unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Intermediate Re-
port. The Trial Examiner also found that Respondents had not en-
gaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, Re-
spondents filed exceptions to the Intermediate Report and a support-
ing brief.'
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 McCulloch and Members Leedom and Jenkins].
The Board has 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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings,2 conclusions, and recommendations of
the Trial Examiner with the following additions :
We agree with the Trial Examiner that Kurtz's concerted activities
in protesting against alleged favoritism in dispatching at the airport,
which adversely affected his earnings and those of his fellow cab-
drivers, were protected by Section 7 of the Act.
We also agree with the Trial Examiner that Respondent corpora-
tions operating as members of the Yellow Cab System were joint em-
'Respondents requested oral argument . This request is hereby denied because the record,
the exceptions , and the brief adequately present the issues and the positions of the parties.
2 The Intermediate Report incorrectly states that the upper ramp at the airport is not
covered by Respondent Red Top's exclusive franchise and that the airport is in Miami.
The record shows that the franchise covers the upper and lower ramps and that the air-
port is not within Miami city limits but within Dade County. We hereby correct these
inadvertent errors.
145 NLRB No. 138.