Commercial Workers, Local No. 576

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1110 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Food and Commercial Workers International
Union, Local No. 576, AFL-CIO' and Earl J.
Engle, Attorney on Behalf of R & F Grocers,
Inc., the Employer. Case 17-CP-223
September 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 2, 1980, Administrative Law Judge Wil-
liam J. Pannier III issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Food
and Commercial Workers International Union,
Local No. 576, AFL-CIO, Kansas City, Missouri,
its officers, agents, and representatives, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
CHAIRMAN FANNING, dissenting:
The Administrative Law Judge found that Re-
spondent violated Section 8(b)(7)(C) of the Act
since he concluded that Respondent picketed the
Employer for more than 30 days without filing a
valid petition and with the object of forcing the
Employer to recognize it. In so finding, the Ad-
ministrative Law Judge refused to permit Respon-
dent to introduce, as a defense, evidence that it is
presently the collective-bargaining representative
of the Employer's employees by virtue of the fact
that the Employer is merely a disguised continu-
ation of an employer, George F. Muehlbach, with
which Respondent has a collective-bargaining rela-
tionship; rather, the Administrative Law Judge
i The name of the Unlion, formerly Am algallated Meatcutler, and
Butcher Workmenl of Norlt Amlerica, local No 576. is amended to re-
flect the change resulting fromtt the merger of the Allilgalillated NMealcut-
ters and Butcher Worknlel of North Arnerica and the Retail Clerks ii-
ternaliotil Ullnl n on Julie 7. 1I79
found that the General Counsel's dismissal of Re-
spondent's 8(a)(5), (3), and () charges based on the
same assertion precluded litigation of this issue. I
must respectfully dissent.
Where, as here, a union raises as a defense to an
8(b)(7)(C) complaint that it is the collective-bar-
gaining representative of the employer's employees,
and that defense if found to be meritorious would
remove the union's picketing from the proscription
of that section of the Act, it appears to me impera-
tive that evidence in support of that defense should
be permitted. It is insufficient, in my view, to pre-
clude introduction of such evidence merely because
it had earlier been the subject matter of 8(a)(5), (3),
and (1) charges which were dismissed by the Gen-
eral Counsel. For the reasons stated in my dissent
in Service Employees' International Union, Local No.
227, AFL-CIO (Children's Rehabilitation Center,
Inc.), 211 NLRB 982 (1974), I do not view such as
an encroachment of the General Counsel's powers
under Section 3(d) of the Act to investigate
charges and issue complaints. 2 Rather, such an in-
quiry merely permits the Board to determine
whether the union was the bargaining representa-
tive of the employees as claimed. In the event it
was not, there is a prima facie 8(b)(7)(C) violation.
The Administrative Law Judge in finding to the
contrary in this case had misinterpreted my state-
ment in Blinne3 to the effect that "in future cases
only a 'meritorious' charge under Section 8(a)(5)
should excuse a failure to file a timely petition."
That the General Counsel has not issued a com-
plaint does not constitute a finding binding on the
Board that there can be no validity to Respon-
dent's claim. Rather, in my view, Respondent
should be permitted to present evidence on this
issue in defense of the allegation that it violated
Section 8(b)(7)(C) of the Act. Under these circum-
stances, I would remand the instant case to the Ad-
ministrative Law Judge to take evidence on Re-
spondent's defense that its picketing did not contra-
vene that section of the Act because the Employer
was under an obligation to recognize it.
See also fn 2 in Unilted FIod and Comnmercial Workers Inernatonl
Il'nin. Loawl '. 163.- . -C.11 1 (Illihmun Enterpriset Li.lmied). 249
NL.RB 372 (1l80), a case ilsilviig an alleged 8(h)(7)(A) vllatio in
,lticft I affirmed the Adminlistrative aw Judge's ruling permitting re-
splondent t introduce evidence relating IIt the emplo er's alleged assis-
tanlce to and/or dmilnation of the recogilzed union despite the General
Cotunsel' s earlier dismlissal if 8(a1)(2) charges
,' nterinationat l d C1 ('arrirs Btlddliitlg and Ctnirntl, Lab/orers UniC n of
,inertia. Local 840. l41 ('- 10 i'huri s i4 Blinne, d/hb/a C. Blinne
(Construct,,n (iorpanv)i, 135 N R 1153. 1173 (1962)
252 NLRB No. 156
1110
COMMERCIAL WORKERS, LOCAL NO 576
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the oppor-
tunity to present evidence, it has been decided that
we violated the law by picketing or causing to be
picketed, or threatening to picket or cause to be
picketed, R & F Grocers, Inc., where an object
thereof was to force or require the said Employer
to recognize or bargain with us as the representa-
tive of its employees in violation of Section
8(b)(7)(C) of the National Labor Relations Act, as
amended. We have been ordered to post this
notice. We intend to carry out the Order of the
Board and abide by the following:
WE WILL NOT under conditions prohibited
by Section 8(b)(7)(C) of the Act picket or
cause to be picketed, or threaten to picket or
cause to be picketed, R & F Grocers, Inc.,
where an object thereof is to force or require
the said Employer to recognize or bargain
with us as the representative of its employees.
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAI. UNION,
LOCAL. No. 576, AFL-CIO
DECISION
STATEMENT 01: TH-L CASE
WILLIAM J. PANNIER Ill, Administrative Law Judge:
This matter was heard by me in Kansas City, Kansas, on
March 20, 1980.1 On February 22, the Acting Regional
Director for Region 17 of the National Labor Relations
Board issued a complaint and notice of hearing, based
upon an unfair labor practice charge filed on February 6,
alleging violations of Section 8(b)(7)(C) of the National
Labor Relations Act, as amended, 29 U.S.C. §151, e seq.,
herein called the Act. All parties have been afforded full
opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, and to file briefs. Based
upon the entire record, the brief filed on behalf of Re-
spondent, and my observation of the demeanor of the
witnesses, I make the following:
FINDINGS OF FACI
1. JURISDICTION
At all times material, R & F Grocers, Inc., herein
called the Employer, has been a Missouri corporation en-
gaged in the operation of a retail grocery store located at
4807 Jefferson, Kansas City, Missouri. In the course and
conduct of its business operations, the Employer annual-
I lnl s ,othcr.lS st.aied . Ill (ilt.,c% ,ccurred in IQX()
ly derives gross revenue in excess of $500,000 and, fur-
ther, annually purchases goods and services valued in
excess of $50,000 which are received at its business oper-
ations within the State of Missouri directly from sources
located outside that State. Therefore, I find, as admitted
by the answer, that at all times material the Employer
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE l.AROR ORGANIZATION INVOLtVED
At all times material, Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 576,
AFL-CIO, herein called Respondent, has been a labor
organization within the meaning of Section 2(5) of the
Act.
Ill. THE AI.LEGED UNFAIR LABOR PRAC'IICES
The basic issue presented by this case is whether Re-
spondent is entitled to raise as a defense to a complaint
alleging a violation of Section 8(b)(7)(C) of the Act the
possibility of an alter ego, joint employer, or successor
relationship between the picketed employer, with whom
Respondent has no bargaining relationship, and another
employer, with whom Respondent has had a longstand-
ing relationship, in circumstances where these same the-
ories were advanced in support of an unfair labor prac-
tice charge, filed by Respondent against these two em-
ployers, that was ultimately dismissed for insufficient evi-
dence. I find that under the Board's decisions it cannot
do so.
On January 7, Respondent commenced picketing the
Employer. It is admitted that the purpose of the picket-
ing had been to secure recognition as the bargaining rep-
resentative of the Employer's meat department employ-
ees working at the Jefferson store. The picketing lasted
for more than 30 days, having been conducted until Feb-
ruary 21. The parties stipulated that at no time material
had there been a valid petition filed under Section 9(c) of
the Act. They further stipulated that Respondent has not
been certified, specifically, as the representative of the
Employer's employees. These facts suffice to establish a
prima facie violation of Section 8(b)(7)(C) of the Act by
Respondent. "It is clear that this section, read as a
whole, declares picketing by an uncertified union unlaw-
ful if it has a recognitional or organizational objective
and if a petition has not been filed within a reasonable
time." ouston Building and Construction Trades Council
(Claude Everett Construction Company), 136 NLRB 321,
324 (1962).
Respondent, however, argues that additional facts,
beyond those pertaining to the literal wording of Section
8(b)(7)(C) of the Act. must be considered. Indeed, the
Board has held that that section of the Act "is not to be
literally applied." Bay Counties District Council of Car-
penter.s AFL-CIO. et al. [Wilber F Disney, d/b/a Disneyv
Roofing & Material Co.] (Jones and Jones. Inc.), 154
NLRB 1598, 1605 (1965). In essence, Respondent argues
that it should be permitted to present evidence regarding
the relationship between the Employer and George F.
Muehlbach and Sons, Inc., herein called Muehlbach,
which would shor that there existed an alter ego, joint
IIH1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer, or successor relationship between these two
employers. Inasmuch as Respondent has maintained a
collective-bargaining relationship with Muehlbach, cov-
ering, at least, meat department employees, and in view
of the fact that Muehlbach closed a facility similar to the
one that the Employer opened, argues Respondent, it
should be allowed "to show that there was no Section
8(b)(7)(C) violation since the elements specifically pro-
vided for in the statute in order to find a violation did
not exist in this case." 2
At the hearing, counsel for the General Counsel
moved to strike Respondent's affirmative defense and to
preclude it from producing any evidence pertaining to
such a defense on the ground that Respondent had filed
an unfair labor practice charge against the Employer and
Muehlbach, alleging violations of Section 8(a)(), (3), and
(5) of the Act, advancing in support thereof the identical
theories which it seeks to litigate in this proceeding. Fol-
lowing investigation, that charge was dismissed and the
dismissal was upheld by the General Counsel, following
the filing of an appeal by Respondent. Accordingly,
argues the General Counsel, Respondent may not now
raise the same theories as a defense to its picketing.
The record shows that on May 30, 1979, Respondent
filed the charge in Case 17-CA-8996. The charge listed
"George F. Muehlbach & Sons Super Markets and its
alter ego and/or joint employer R & F Grocery, Inc. d/
b/a Muehlbach West" as the employer being charged
with the commission of unfair labor practices. The
charge alleged violations of Section 8(a)(1), (3), and (5)
of the Act and stated, specifically:
Since on or about April 18, 1979, and continuing
to date, the above-named Employer, through its of-
ficers, agents, and/or representatives, has discrimi-
nated against members of Local Union No. 576 by
refusing to hire them because of their activities and/
or membership in Local No. 576.
Since on or about April 18, 1979, and continuing
to date, the above-named Employer refused to abide
by the terms of the collective-bargaining agreement
in existence between it and Local No. 576, the rec-
ognized bargaining agent of its employees in an ap-
propriate unit.
2 In its brief, and in its offer of proof, Respondent argues that, if per-
mitted to present its defense, it would establish that it had been certified
as the representative of Muehlbach's employees. In so doing, however, it
disregards the fact that during the hearing, when asked if there had been
such a certification. it was unable to present evidence of its existence and,
indeed, was unable to even represent that there ever had been a certifica-
tion issued to it as the representative of Muehlbach's employees More-
over, though afforded the opportunity to submit evidence of such a certi-
fication following the close of the hearing, it has not done so Converse-
ly, counsel for the General Counsel made a search of the Regional Office
records to ascertain whether Respondent had ever been certified as the
representative of Muehlbach's employees, but was unable to locate any
record of such a certification. Inasmuch as such records of certifications
are regularly maintained by Regional Offices, the absence of such a
record, particularly where a respondent has been unable to produce ally
evidence of such a certification, is evidence that none exists and, accord-
ingly. that Respondent was never certified as the representative of
Muehlbach's employees. See Fed. R. Evid. 803(7) and notes thereto. In
any event, the matter is not material, since, as discussed inja, incumben-
cy alone suffices to remove picketing from the proscriptiron of Sec
8(b)(7) of the Act
In dismissing the charge, the Acting Regional Director
stated, in his letter of July 6, 1979:
The investigation established that George Muehl-
bach & Sons, Inc. (the Employer), has had a collec-
tive-bargaining relationship with the Union for
many years. The current collective-bargaining
agreement expires on April 5, 1980, and covers the
Employer's meat cutting employees at three loca-
tions, including a location at Nichols Road. Several
months ago the Employer learned that its lease at
the Nichols Road store would not be renewed. The
lease expires January 31, 1980, and the Employer
expects to continue operations there until the expi-
ration date of the lease.
In or about March 1979, R & F Grocery, Inc. (R
& F), was established to commence operations of a
grocery store in the same general vicinity as the Ni-
chols Road store. The new store commenced oper-
ations in or about May 1979 doing business as
Muehlbach West.
It appears that R & F is primarily owned and op-
erated by two sons of Les Muehlbach, the principal
owner of the Employer. The charge alleges that the
Employer and R & F constitute an alter ego or joint
employer and, therefore, that the Employer's refusal
to recognize the Union and to apply the terms of
the collective-bargaining agreement at Muehlbach
West is violative of the Act.
Even assuming that the Employer and R & F
constitute a joint employer, it was initially deter-
mined that there is insufficient evidence establishing
a discriminatory object regarding the establishment
of R & F. Thus, there is insufficient evidence that
the establishment of R & F was motivated by a
desire to discourage union activity or to destroy the
Union's majority status as to the existing bargaining
unit. Gerace Construction, Inc., et al., 193 NLRB
645, 646, fn. 6 (1971).
It was also determined that, assuming the Em-
ployer and R & F constitute a joint employer, the
meat cutting employees at R & F constitute a sepa-
rate appropriate unit. In this regard, the evidence
indicates that there is separate direct supervision,
different working hours, and substantially different
job functions between the R & F meat cutting em-
ployees and the Employer's meat cutting employ-
ees. It was, therefore, determined that neither the
Employer nor R & F was obligated to recognize
the Union at Muehlbach West. Peter Kiewit Sons'
Co., et al., 231 NLRB 76 (1977).
Finally, it was determined that, although the Em-
ployer in the past has applied its collective-bargain-
ing agreements with the Union to new locations, be-
cause of the separate appropriateness of the R & F
meat cutter unit there is no statutory obligation for
the Employer to recognize the Union and apply the
terms of the current agreement at Muehlbach West.
Houston Division of the Kroger Co., 208 NLRB 928
(1974). Accordingly, I am refusing to issue a com-
plaint in this matter.
1112
C()MMFRCIAI WO)RKI!RS, .()CAAI. N() 57
In the letter denying Respondent's appeal of the Region-
al Office's dismissal of the charge, the General Counsel
stated:
The appeal is denied. Contrary to your conten-
tion on appeal it could not be established that
Muehlbach West is an alter ego or joint employer
with Respondent. There was insufficient evidence
to sustain the burden of proving that Muehlbach
West was created in order for Respondent to avoid
its union obligations. Rather, it appears that Muehl-
bach West was established because the lease on Re-
spondent's store could not be renewed on a long
term basis. Additionally, it did not appear that a
joint employer situation existed since there was no
evidence of common labor relations and common
control, the businesses were separately incorporat-
ed, and they are primarily owned by separate per-
sons.
Furthermore, it does not appear that Muehlbach
West is an accretion to Respondent. In this regard,
the evidence indicated that there is separate direct
supervision, different working hours, different job
functions, and different physical locations for the
stores involved.
Absent evidence that the Muelbach West em-
ployees authorized the Union to represent them, it
could not be concluded that the Union is entitled to
recognition. Party Cookies, Inc., 237 NLRB 612,
615-616 (1978), and Houston Division of the Kroger
Co., 208 NLRB 928.
Therefore, the question presented in this case is whether,
in light of the rejection of Respondent's alter ego, joint
employer, and successor theories in Case 17-CA-8996,:
Respondent should be able to advance and litigate these
identical theories in defense of its unlawfully prolonged
recognitional picketing in violation of Section 8(b)(7)(C)
of the Act. To properly assess this issue, analysis must be
directed at two facets of Section 8(b)(7)(C) of the Act.
First, with respect to subdivision (C) of Section 8(b)(7)
of the Act, a picketed employer's unfair labor practices
do not excuse the filing of the petition mandated by that
subdivision, save only where there is a meritorious
charge alleging a violation of Section 8(a)(5) of the Act.
See Construction and General Laborers, No. 304, AFL-
CIO (Paul E. lacono, Structural Engineer, Inc.), 245
NLRB 346 (1979). This is so because the "statutory
plan [is] designed to substitute Board elections for picket-
ing of unreasonable duration as a means of resolving dis-
putes over representation." Teamsters Local Union No.
115 (J. Stanley Thackerah and J. Charles Barr t/a The
Vila-Barr Company), 157 NLRB 588, 589 (1966). Conse-
quently, in assessing the effect of employer unfair labor
practices in analyzing allegations that Section 8(b)(7)(C)
of the Act has been violated, the focus must be on the
a In its brief, Respondent states that following the close of the hearing
it filed a new charge, making the same allegations as it had made in Case
17-CA-S996, based upon certain information produced by the Employcr
at the hearing in this case However, on May 21, the Regional [)irector
for Region 17 dismissed that charge, stating that this "nessly discovered
evidence . is insufficient to require a result different from the earlier
case
effect of those unfair labor practices on the ability to
process representation petitions.
As a general proposition, where there are employer
unfair labor practices, "the petition would be held in
abeyance pending a satisfactory resolution of the unfair
labor practice charges." International HIod Carriers'
Building and Commnon Laborers' Union of America, Local
840, .4-FL-CIO (Charles .4. Blinne, d/b/a C. A. Blinne
Construction Company), 135 NLRBI 1153, 1167 (1962).
Once the unfair labor practices have been fully remedied,
their effects are presumed to have been dissipated and an
election can be conducted in an atmosphere free of their
coercive effects. However, where the employer's unfair
labor practice violates Section 8(a)(5) of the Act, no
question concerning representation exists and, according-
ly, "the Board has over the years uniformly refused to
entertain representation petitions where a meritorious
charge of refusal to bargain has been filed." Id. at 1166,
fn. 2. In other words, any representation petition that is
filed would be dismissed because the existence of a viola-
tion of Section 8(a)(5) of the Act necessarily precludes
the existence of a question concerning representation,
which is a prerequisite to processing a petition under
Section 9 of the Act. "Hence, had Respondents filed a
timely 8(a)(5) charge, a complaint would have issued and
Respondents would have been exonerated from the re-
quirement of Section 8(b)(7)(C) that a timely representa-
tion petition be filed." International Typographical Union,
et al. (Charlton Press, Inc.), 135 NLRB 1178, 1179 (1962).
However, where no refusal-to-bargain charge is filed
or where one is filed but dismissed, "there would [be] no
bar to the processing of a representation petition and the
failure to file a timely representation petition is the gra-
vamen of Respondent['s] offense here." Id. The fact that
the picketing labor organization may, in fact, represent a
majority of the picketed employer's employees does not
exempt it from filing a petition as mandated by Section
8(b)(7)(C) of the Act. See, e.g., Local Union 154, Interna-
tional Typographical Union, AFL-CIO (Ypsilanti Press,
Inc.), 137 NLRB 1116, 1117, fn. 1 (1962). Moreover, the
fact that the picketed employer may have unlawfully re-
fused to bargain does not, absent a meritorious charge to
that effect, serve as a defense to the picketing labor orga-
nization's failure to file a charge, inasmuch as "under set-
tled Board practice, evidence of unfair labor practices
may not be adduced in a representation proceeding so as
to bar an election which would otherwise be directed."
Charlton Press, supra at 1180. In short, only a meritorious
refusal-to-bargain charge exempts a picketing labor orga-
nization from the requirement that it file a representation
petition before engaging in prolonged picketing, and, if
such a charge has been filed but dismissed by the Gener-
al Counsel, the matter may not be raised as a defense to
an alleged violation of subdivision (C) of Section 8(b)(7)
of the Act.
By letter dated May 22, Respondent submitted a copy
of United Food and Commercial Workers International
Union. Local No. 1063, AFL-CIO (Heathman Enterprises
Limited), 249 NLRB 372 (1980). There, the Administra-
tive Law Judge permitted the parties to litigate the issue
of whether there had been employer assistance or domi-
1113
4DFCISIONS ()F NATI()NAIL IAB()R RLIATI()NS I)ARI)
nation of the incumbent representative even though the
General Counsel had earlier dismissed the picketing
labor organization's unfair labor practice charge alleging
that the identical conduct had violated Section 8(a)(2)
and (I) of the Act. However, Heathmna involved alln al-
leged violation of Section 8(b)(7)(A) of the Act, whereas
the instant case involves an allegation that Section
8(b)(7)(C) of the Act has been violated. The existence of
a lawfully recognized representative is a condition to the
application of Section 8(b)(7)(A) of the Act. By contrast,
for purposes of this proceeding, the only significant ques-
tion is whether Respondent has filed a petition as man-
dated by Section 8(b)(7)(C) of the Act. The issues which
it seeks to litigate-alter ego, joint employer, or succes-
sorship-are ones which are defenses to not filing a rep-
resentation petition and, as discussed above, must be
measured by the principles and procedures applied in
representation proceedings.
That such a distinction exists is most apparent from an
examination of the comments of the three Board mem-
bers who formed the panel in Heathman. More specifi-
cally, Chairman Fanning agreed that the Administrative
Law Judge in that case had properly permitted litigation
of the possible assistance to or domination of the incum-
bent representative there. Yet, in the 8(b)(7)(C) context,
he has stated, "I agree that in future cases only a 'merito-
rious' charge under Section 8(a)(5) should excuse a fail-
ure to file a timely petition." Blinne, supra at 1173. More-
over, both Chairman Fanning and Member Jenkins have
agreed with the decisions of the Board in the cases relied
upon infra that support my ruling precluding Respondent
from litigating its defenses in this matter. Therefore,
Heathman is not apposite to the defenses raised by Re-
spondent in a proceeding involving an alleged violation
of Section 8(b)(7)(C) of the Act.
This, however, does not end the matter, inasmuch as
"not all picketing for recognition or organization is pro-
scribed." Blinne, supra at 1156. An incumbent labor orga-
nization, whether or not certified, is entitled to picket for
continued recognition without running afoul of the pro-
scription of Section 8(b)(7) of the Act. For that section
prohibits only "picketing having as its target forcing or
requiring an employer's initial acceptance of the union as
the bargaining representative of his employees [emphasis
supplied]." Building and Construction Trades Council of
Santa Barbara County, AFL-CIO, et al. [Sullivan Electric
Company] (Jones and Jones, Inc., and Interstate Employers,
Inc.), 146 NLRB 1086, 1087 (1964). In the instant case,
the Employer has never recognized Respondent as the
collective-bargaining representative of its meat depart-
ment employees. However, Muehlbach had done so. Re-
spondent offers to prove that the relationship between
these two employers is such that the former is but a dis-
guised continuance of the latter, thereby, it argues, ren-
dering its picketing for continued, rather than initial, rec-
ognition.
The difficulty with this proffered defense is that all of
the contentions advanced by Respondent in this case had
been advanced in support of its charge in Case 17-CA-
8996. But, as set forth above, the General Counsel deter-
mined that there was insufficient evidence to warrant is-
suance of a complaint against the Employer and Muehl-
bach. 4 Under Section 3(d) of the Act, the (jeneral Coun-
sel has final authority over the issuance of unfair labor
practice complaints. Consequently, to permit Respondent
to litigate its contentions under the guise of a defense in
this matter would be to "create the undesirable situation
of the Board's acting in practice as a forum for consider-
ing the content of charges which the General Counsel,
for reasons satisfactory to himself, has thought it proper
to dismiss." Times Square Stores Corporation, 79 NLRB
361, 365 (1948). This the Board has held that it will not
do in proceedings arising under Section 8(b)(7) of the
Act. Local 295. affiliated with International Brotherhood of
Teamsters, Chauffeurs. Warehousemen and Hlelpers of
America (Calderon Trucking Corp.), 178 NLRB 52, 54
(1969); Service Employees' International Union, Local No.
227, AFL-CIO (Children's Rehabilitation Center, Inc.),
211 NLRB 982 (1974).
Respondent, however, argues that it is "not seeking a
finding that [the Employer] had violated Section 8(a)(l),
(3), or (5) of the Act" but instead is "merely attempting
to show that there was no Section 8(b)(7)(C) violation
since the elements specifically provided for in the statute
in order to find a violation did not exist in this case." But
"it is difficult to distinguish the objective of enforcing
the claimed successorship obligation to bargain from the
objective of remedying alleged unfair labor practices."
Retail Clerks Union Local 1557 (Giant Foods of Chatta-
nooga, Inc.), 217 NLRB 4, 10 (1975), Accord: Produce
Drivers & Florists Union, Local 703, International Brother-
hood of .eamsters, Chauffeurs. Warehousemen and Helpers
of America (People Pleasing of Chicago. Inc.), 238 NLRB
532, 534 (1978). Like rationale, of course, is applicable to
Respondent's alter ego and joint employer contentions.
Respondent argues that failure to permit litigation of
its contentions as defenses in this case, on the basis of
their rejection by the General Counsel in Case 17-CA-
8996, results in deprivation of its right to a hearing. But
this is not accurate. It is hardly a novel proposition for
litigation of particular issues to be confined to an appro-
priate proceeding and to bar their litigation in other pro-
ceedings. For example, the commission of unfair labor
practices during the preelection period, a fortiori, war-
rants setting aside an election and directing that a new
election be conducted. Dal-Tex Optical Company, Inc.,
137 NLRB 1782, 1786 (1962). Nevertheless, in proceed-
4 In its brief, Respondent argues that. as a result of documentation pro-
duced by the Employer in response to a subpoena duces tecum issued in
this matter, it now possesses evidence not disclosed during the investiga-
tion of Case 17-CA-8996. The difficulty with such an argument is that
there is no basis for making a determination concerning what evidence
had been available to the General Counsel at the time that the determina-
tion to dismiss that charge had been made Nor, in the final analysis,
would there be any basis for ascertaining what infoirmationl had been dis-
closed during that investigation. See N.L.R.B. v. Robbins Tire & Rubber
Co., 437 U S. 214 (1978) Without such evidence, to conclude that the in-
scsligatioi in Case 17 CA 8996 had been conducted improperly would
be contrary to the presumption of proper performance of an official duty
See, eg., Wong Wing Foo v McGrath, 196 F2d 120, 123 (9th Cit 1952)
Moreover, it would hardly promote the prompt processing of disputes to
resolutioli if parties could raise defenses challenging the propriety of in-
sesligatiins in prior cases In any event, as noted in fn 3. supra, after
reviewing Respondent's "nesls discovered evidence." the Regional Di-
rector concluded that it was not sufficient to Warrant issuance of a cm-
plalint
1114
COMMERCIAL. WORKERS. I.()CAL N() 57h
ings under Section 9 of the Act, the Board will not
permit litigation of whether unfair labor practices have
been committed during the preelection period, even
though by precluding litigation of such matters a certifi-
cation might issue which would not have issued had a
charge been filed alleging that same conduct. "To make
such a finding in a representation case would conflict
with the statutory scheme which vests the General
Counsel with final authority as to the issuance of com-
plaints based upon unfair labor practice charges and the
prosecution thereof." Texas Meat Packers, Inc., et al., 130
NLRB 279 (1961).
Similarly, whatever right Respondent has to a hearing
on its contentions properly arises in connection with a
complaint issued by the General Counsel against the Em-
ployer. However, Congress has made the determination
that the statutory scheme should vest the General Coun-
sel with final authority to decide whether Respondent
can obtain such a hearing through the mechanism of the
General Counsel's authority to decide whether com-
plaints should issue as a result of charges that are filed.
The courts have not been reluctant to uphold that con-
gressional determination. See, e.g., Hourihan v. N.L.R.B.,
201 F.2d 187 (D.C. Cir. 1952). In essence, therefore, Re-
spondent's argument is that, having been unable to obtain
a hearing on its contentions through the means pre-
scribed by Congress in the Act, it now should be al-
lowed to obtain that hearing in other proceedings. Yet,
the Board has already made plain that it does not intend
to make its other proceedings available so that it can act
"in practice as a forum for considering the content of
charges which the General Counsel, for reasons satisfac-
tory to himself, has thought it proper to dismiss." Times
Square Stores, supra at 365.
IV. THE EFFECT OF HI UNFAIR ABOR PRACIICES
UPON COMMERCE
The activities of Respondent set forth in section 111,
above, occurring in connection with the operations of
the Employer set forth in Section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead and
have led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCI.USIONS OF LAW
1. R & F Grocers, Inc., is an employer within the
meaning of Sections 2(2) and 8(b)(7) of the Act, engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Amalgamated Meat Cutters and Butcher Workmen
of North America, Local No. 576, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By picketing R & F Grocers. Inc., from January 7
to February 21, 1980, with an object of forcing or requir-
ing R & F Grocers, Inc., to recognize and bargain with
it as the collective-bargaining representative of meat de-
partment employees employed by R & F Grocers, Inc.,
or forcing or requiring those employees to accept and
select it as their collective-bargaining representative,
without being certified as the collective-bargaining repre-
sentative of those employees and without a petition
under Section 9(c) of the Act being filed within a reason-
able period of time, Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 576, en-
gaged in unfair labor practices within the meaning of
Section 8(b)(7)(C) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE Rl MEDY
Having found that Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 576,
has engaged in unfair labor practices in violation of the
Act, I shall recommend that it cease and desist therefrom
and that it take certain affirmative action designed to ef-
fectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER s
The Respondent, Amalgamated Meat Cutters and
Butcher Workmen of North America, Local No. 576,
Kansas City, Missouri, its officers, agents, and represen-
tatives, shall:
1. Cease and desist from picketing or causing to be
picketed. or threatening to picket or cause to be picket-
ed, R & F Grocers, Inc., where an object thereof is forc-
ing or requiring said employer to recognize or bargain
with it as the representative of its employees in violation
of Section 8(b)(7)(C) of the Act.
2. Take the following affirmative action deemed neces-
sary to effectuate the policies of the Act:
(a) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Director
for Region 17, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
, In the eent no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the Nalional Labor Relations Board, the Find-
ings, conclusions, and recommended Order herein shall., as provided in
Sec. 102 48 of he Rules and Regulations. be adopted by the Board and
become its findings, conclusions. and Order. and all objectIons thereto
shall be deemed waived for all purposes
e In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "Posed hb
Order of the National Lahbor Relation, Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeal, Enforcing an
Order of he National I.abor Relations Board"
I 1 5