Detroit Resilient Floor Decorators Local Union 2265

National Labor Relations Board - Board Decisions

Mar 30, 1962

136 N.L.R.B. 769 (N.L.R.B. 1962)

DETROIT RESILIENT FLOOR DECORATORS LOCAL 2265 769
refuse to make deliveries , or transport goods and individuals , and to refuse to per-
form services , .the Respondent has engaged in proscribed conduct with the meaning of
Section 8 (b) (7) (C) of the Act.
4. Thd aforesaid conduct therefore is an unfair labor practice affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Detroit Resilient Floor Decorators Local Union No. 2265, of the
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Mill Floor Covering , Inc. Case No. 7-CB-783.
Mach 30, 196.
DECISION AND ORDER
On August 31, 1961, Trial Examiner C. W. Whittemore issued his
Intermediate Report, finding that Respondent had not violated Section
8(b) (3) and 8(b) (1) (A) as alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the Intermediate Report attached hereto. Thereafter the General
Counsel and Respondent filed exceptions, each with a supporting
brief.' The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs,' and the entire record in this
case and finds merit in the General Counsel's exceptions. Accordingly,
the Board adopts the findings of the Trial Examiner only to the extent
consistent with this Decision and Order.
The complaint alleged that the Union violated Section 8(b) (3)
through its insistence that the Employer agree to a contractual pro-
vision under which the Employer would obligate itself to contribute
to a fund established for the promotion of the floor covering industry
in the Detroit area. The Trial Examiner found that this was a manda-
tory subject of bargaining, and that by insisting upon an agreement
containing such a provision, the Respondent had not violated Section
8(b)(3).
We briefly summarize the facts of the case. In February 1961, the
Union demanded recognition from the Employer as the exclusive rep-
resentative of its employees and was voluntarily recognized. A few
days later, the Employer met with representatives of the Union who
requested the Employer to execute a collective-bargaining agreement
identical with one already in effect between the Union and Floor
Covering Contractors, a multiemployer association in the Detroit
1 The Board accepted a brief amicus curiae offered by attorneys representing several
building construction industry trade associations , in support of the Trial Examiner's
holdings.
2 The Respondent' s motion for oral argument is denied because in our opinion the record,
exceptions , and briefs adequately set forth the positions of the parties
136 NLRB No. 76.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area . The Employer is not a member of the association. After pro-
tracted discussion over the Employer's objections to inclusion in the
agreement of a provision for contributions to the industry promotion
fund established in the association's contract with the Union, the
Employer eventually signed the agreement with such a clause, but
reserved the right, exercised in this proceeding, of testing the Union's
insistence that such contributions were a mandatory subject of
bargaining.
The provisions in the contract which are applicable to the fund read
as follows :
Article 5-Section 7.
The Employers Agree as of the effective date of this Agreement
to establish a Floor Covering Industry Association Promotional
Fund, which shall be used exclusively for the purpose of promot-
ing, publicizing, and advancing the interests of the floor covering
industry.
Each employer agrees to contribute one (1¢) cent per hour for
each hour worked by each Employee covered by this Agreement
to said Promotional Fund in addition to the other Funds paid
under this Agreement. Said Promotional Funds shall be admin-
istered under the direction of four (4) Trustees selected by all of
the Employers signatory to an Agreement identical to this Agree-
ment and pursuant to a Trust Agreement prepared by such
Trustees and ratified by a majority of such Employers. A uni-
form collection machinery will be established to collect the con-
tributions due under this section.
The Union has advised the-Employer that contributing to the fund
is not tantamount to membership in the association.
Section 8 (d) of the Act specifies the mandatory subjects of collective
bargaining as "wages, hours and other terms and conditions of em-
ployment." The Supreme Court, in its Borg-Warner 3 decision, has
held that insistence upon a nonmandatory subject constitutes an un-
lawful refusal to bargain as to those mandatory subjects. The Trial
Examiner found that "promoting" an industry is "intimately relevant
to wages, hours, and other terms and conditions of employment" ;
hence, bargaining on this subject is mandatory , and insistence thereon
is not a refusal to bargain.
The General Counsel argues that the test for determining the in-
clusion of a given matter within the mandatory bargaining areas is
that it must involve an employer's relationship vis-a-vis its employees.
Stated otherwise, a mandatory subject is something that goes with the
job. The Respondent, supporting the Intermediate Report, argues
3 N L.R B. v. Wooster Division of Borg -Warner Corporation, 356 U.S. 342, 349.
DETROIT RESILIENT FLOOR DECORATORS LOCAL 2265 771
that bargaining over participation in the fund is mandatory, because
of the potentially favorable effect that a successful promotion, financed
by the fund, would have upon the employment opportunities of those
employed by participants in the fund.
The Board has held that, included in the scope of "wages, hours and
other terms and conditions of employment" are all emoluments of
value or other benefits accruing to employees out of their relationship
with their employer.4 To the same effect, the Supreme Court in Borg-
Warner, supra, held that the so-called "ballot provision," which was
one of the contract clauses at issue therein, was not a mandatory bar-
gaining subject because it was a matter outside of the employment
relationship, that is, it dealt essentially with the relationship of the
employees to their union.5 An industry promotion fund seems to us
to be outside of the employment relationship. It concerns itself rather
with the relationship of employers to one another or, like advertising,
with the relationship of an employer to the consuming public.
The ability of an employer or an industry to meet changing condi-
tions may, as the Respondent argues, affect employees' opportunities
in the long run, and labor organizations are understandably con-
cerned with the future of the industries from which their members
derive their livelihood. Such long-range prospects may also be af-
fected by conditions and events of even more general applicability,
such as developments on the economic or political scene, legislation,
taxation, and foreign competition. Nothing prevents an employer
and a union from joining voluntarily in a mutual effort to attempt to
influence their industry's course of development, provided, of course,
that other legislative enactments do not prohibit such activities. To
hold, however, under this Act, that one party must bargain at the
behest of another on any matter which might conceivably enhance the
prospects of the industry would transform bargaining over the com-
pensation, hours, and employment conditions of employees into a
debate over policy objectives.
The industry promotion fund in question seeks to educate the public
so that it will prefer reputable flooring contractors over others; it is
a form of institutional advertising and represents the choice of the
multiemployer association and the Union as to their best interests; it
is unlike pensions and other types of deferred compensation, which
4 E g., a pension plan (Inland Steel Company, 77 NLRB 1, 4, enfd. 170 F. 2d 247
(C A 7), cert denied 336 U.S. 960) ; vacations, seniority, reimbursement for expenses
away from headquarters, sick leave (The Pacific Telephone and Telegraph Company, 113
NLRB 478) ; a stock purchase plan (Richfield Oil Corporation, 110 NLRB 356, enfd 231
F. 2d 717 (C.A.D C.), cert. denied 351 U.S 909) ; group insurance (Clinton Foods, Inc,
112 NLRB 239) ; a bonus (Niles-Bement-Pond Company, 97 NLRB 165, enfd 199 F. 2d
713 (CA. 2)).
5 N L R B. v. Wooster Division of Borg-Warner Corporation, supra, 349-350
641795-63-vol. 136-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we have held to be included in the modern concept of "wages." 6 This
form of advertising or education may be unsuitable or undesirable
for the more limited purposes of this Employer, who is not a mem-
ber of the association. In any event, the connection between such an
advertising campaign and its eventual effect, if any, on wages and
terms of employment is so remote and speculative that we are unable
to say that the two areas overlap.
The Board is fully aware that the subject matter of bargaining
must reflect the changing conditions of industrial society and the
changing responsibilities of labor and management. The Board in-
tends to keep pace, through interpretation of the general terms em-
bodied in Section 8(d), to insure that bargaining for new forms of
"wages" or for hitherto undeveloped terms or conditions of employ-
ment is not restricted. The Board is not, however, empowered to lend
its sanctions of enforcement either to encourage or to discourage ex-
perimentation, through the bargaining process, in areas which are out-
side the employment relationship altogether, or which, at best, touch it
only peripherally.
We conclude, therefore, that the question of participation in an
industry promotion fund is not a mandatory subject of bargaining
because it is neither wages, hours, nor a term or condition of
employment.,
In so holding, we are not unmindful of the appearance of pro-
visions for such funds, financed by employer contributions, in
collective-bargaining agreements in a number of industries through-
out the country, as conceded by the General Counsel at the hearing
and as indicated to us in the amicus brief. Hence, we wish to make it
clear, as the Board has previously held,' that our finding herein does
not imply in any way that parties are not free to include provisions of
this type in collective-bargaining agreements. We say merely that
participation in such a fund is a permissive (i.e., nonmandatory) bar-
gaining subject and that there is no obligation that either party
bargain thereon.
d E g, Inland Steel Company, supra ; The Pacific Telephone and Telegraph Company,
supra , Richfield Oil Corporation , supra ; Clinton Foods , Inc, supra; Niles-Bement-Pond
Company, supra
7 We also note that two subsidiary purposes of the fund involved here are "Programs or
activities concerned with providing competent and efficient means of training apprentices
for the floor covering industry" and "Programs to acquaint workmen employed by Com-
panies and Independent Companies with the purpose of new products or methods of in-
stallation as they are made available." Neither the collective-bargaining agreement nor
the trust fund agreement under which contributions to the fund are made specify what,
if any, portion of the trust is to be allocated to either of these objectives There was
testimony that, at the time of the hearing, no funds were being expended by the trust in
support of these purposes . Thus, in this posture of the case , we are not called upon to
decide whether a fund limited to either or both of these subsidiary objectives would be a
mandatory subject of bargaining.
8 See Detroit Window Cleaners Union, Local 139 of the Building Service Employees'
International Union, AFL-CIO (Daelyte Service Company ), 126 NLRB 63.
DETROIT RESILIENT FLOOR DECORATORS LOCAL 2265
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
773
The conduct of the Respondent set forth above, occurring in con-
nection with the operations of the Employer as set forth in section I
of the Intermediate Report, has a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes, preventing and obstructing the free
flow of commerce.
CONCLUSIONS OF LAw
1. Mill Floor Covering, Inc., is engaged in commerce within the
meaning of the Act.
2. Detroit Resilient Floor Decorators Local Union No. 2265, of the
United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
3. By insisting on bargaining with Mill Floor Covering, Inc., with
respect to participation in a fund for promotion of the floor covering
industry the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b) (3) of the Act.
4. The aforesaid activities are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and take
certain affirmative action designed to effectuate the'policies of the Act.
Inasmuch as the Employer and the Respondent have already entered
into a contract containing the provision which is in issue here and
with which the Employer is complying only under protest, we shall
order the Respondent to cease and desist from insisting that the Em-
ployer continue making contributions to the fund or otherwise com-
plying with that provision of the contract. We shall also order the
Respondent to cease and desist from insisting, in any other bargaining
negotiations with the Employer, upon inclusion of any other clause
or proposal which does not involve wages, hours, or other terms and
conditions of employment.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Detroit Resilient
Floor Decorators Local Union No. 2265 , of the United Brotherhood
of Carpenters and Joiners of America , AFL-CIO, its officers , repre-
sentatives, agents , successors , and assigns , shall:
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Insisting upon compliance with the provision in its collective-
bargaining agreement with the Employer which requires contribu-
tions to the Floor Covering Industry Promotion Fund.
(b) In any like or related manner, refusing to bargain collectively
with the Employer by insisting upon inclusion in any collective-
bargaining agreement of any clause or other proposal not involving
wages, hours, or other terms and conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in conspicuous places in Respondent's business offices,
meeting halls, and all places where notices to members are customarily
posted in the Detroit, Michigan, areas, copies of the notice attached
hereto marked "Appendix." 9 Copies of said notice, to be furnished
by the Regional Director for the Seventh Region, shall, after being
duly signed by the representative of Respondent, be posted by Re-
spondent immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for the Seventh Region copies
of the aforementioned notice for posting by Mill Floor Covering, Inc.,
the Employer willing, in places where notices to employees are cus-
tomarily posted. Copies of said notice, to be furnished by the Re-
gional Director for the Seventh Region, shall, after being duly signed
by Respondent's official representative, be forthwith returned to the
Regional Director.
(c) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps have been taken to comply herewith.
MEMBER BROWN took no part in the consideration of the above
Decision and Order.
9 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF DETROIT RESILIENT FLOOR DECORATORS
LocAL No. 2265, OF THE UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO AND TO ALL EMPLOYEES OF MILL
FLOOR COVERING, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
DETROIT RESILIENT FLOOR DECORATORS LOCAL 2265 775
WE WILL NOT insist upon contributions by Mill Floor Covering,
Inc., to the Floor Covering Industry Promotional Fund.
WE WILL NOT in any like or related manner insist in collective-
bargaining negotiations with Mill Floor Covering, Inc., upon in-
clusion in any collective-bargaining agreement of any other clause
or proposal not involving wages, hours, or other terms or condi-
tions of employment.
DETROIT RESILIENT FLOOR DECORATORS
LOCAL UNION No. 2265, OF THE UNITED
BROTHERHOOD OF CARPENTERS AND JOIN-
ERS OF AMERICA, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Industrial Building, 232 West Grand River, Detroit, Michigan,
Telephone Number Woodward 2-3830, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
A charge in the above-entitled case having been filed and served , a complaint
and notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the
Respondent Union, a hearing involving allegations of unfair -labor practices in viola-
tion of Section 8(b),(1),(A) and (3) of the National Labor Relations Act, as
amended, was held in Detroit, Michigan, on July 6, 1961, before the duly designated
Trial Examiner.
At the hearing all parties were represented by counsel , and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs. Briefs have been received from General Counsel and the Respondent.
Upon the record thus made , and from his observation of the witnesses , the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING COMPANY
Mill Floor Covering, Inc., is a Michigan corporation with principal office and
place of business in Detroit, Michigan, where it is engaged in the retail sale and dis-
tribution of carpeting and related products.
During the 12-month period ending March 31, 1961 , the Company sold and dis-
tributed carpeting and related products valued at more than $500,000. During the
same period it received goods and materials valued at more than $ 100,000 directly
from States of the United States other than Michigan.
The Company is engaged in commerce within the meaning of the Act.
II. THE RESPONDENT UNION
Detroit Resilient Floor Decorators Local Union No. 2265, of the United Brother-
hood of Carpenters and Joiners of America , AFL-CIO, is a labor organization
admitting to membership employees of the Charging Company.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and issues
The one issue raised by General Counsel in his complaint is whether the Union
violated Section 8(b)(3) and (1)i(A) of the Act, as amended, by insisting that the
Charging Company agree to include in a contract, in all other respects acceptable
to both parties, a clause which provided that the Employer contribute to a "promo-
tional fund" for the purpose of "promoting, publicizing, and advancing the interests
of the floor covering industry."
Sections of the Act invoked are:
8(b)(1)-(A) reads:
It shall be an unfair labor practice for a labor organization or its agents-
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed
in section 7 ... .
8(b)(3) reads:
It shall be an unfair labor practice for a labor organization or its agents-
(3) to refuse to bargain collectively with an employer, provided it is the repre-
sentative of his employees subject to the provisions of section 9(a).
It is General Counsel's contention that the Union was not "privileged" to insist
upon the "inclusion of such clauses in the contract" because the "subject matters"
are not "within the scope of mandatory bargaining as defined in Section 8(d) of
the Act."
The portion of Section 8(d) relevant to this claim reads:
For the purpose of this section, to bargain collectively is the performance of the
mutual obligation of the employer and the representative of the employees to
meet at reasonable times and confer in good faith with respect to wages, hours,
and other terms and conditions of employment ... .
B. The relevant facts
In the main, the following findings rest upon the testimony of Attorney Anbender,
counsel for the Charging Company, and Powers, the business manager of the Re-
spondent Local:
(1) Shortly before February 21, 1961, Anbender was informed by his client that
the Local had claimed to represent a majority of the employees and wanted a contract.
The attorney thereupon called the Local, agreed to recognize it if it "represented a
majority," and asked that a proposed contract be submitted. A contract was sent
to him.
(2) OOn February 21 Anbender and David Leib, president of the Company, met
with Powers and another union representative.
(3) It appears that the company representatives raised no question of majority
representation . They agreed to sign the proposed contract at once-provided a
single section were omitted.
(4) The section (of Article V) involved reads:
Section VII, Paragraph 1.
The Employers Agree as of the effective date of this Agreement to establish
a Floor Covering Industry Association Promotional Fund, which shall be used
exclusively for the purpose of promoting, publicizing, and advancing the interests
of the floor covering industry.
Section VII, Paragraph 2.
Each employer agrees to contribute one (10 ) cent per hour for each hour
worked by each Employee covered by this Agreement to said Promotional Fund
in addition to the other Funds paid under this Agreement . Said Promotional
Funds shall be administered under the direction of four (4) Trustees selected
by all of the Employers signatory to an Agreement identical to this Agreement
and pursuant to a Trust Agreement prepared by such Trustees and ratified by
a majority of such Employers . A uniform collection machinery will be estab-
lished to collect the contributions due under this section.
(5) The substance of the Company's objection to the inclusion of the above-
quoted provision, as expressed by Anbender to the Union representatives, was that
it did not belong and did not intend to belong to the employers ' association, had
not participated in the negotiation of the contract , and preferred to do its own
advertising and promotion.
DETROIT RESILIENT FLOOR DECORATORS LOCAL 2265 777
(6) The union representatives replied that since all the area employers had signed
this contract, no deletions or changes would be permitted. Because it was an "in-
dustry" contract, they said, it could not be changed "solely" for the Charging
Company.
(7) Finally Anbender agreed that he would sign the contract provided the parties
could also agree, by an exchange of letters or otherwise, that he would have the
right to "contest the legality of the negotiations in relation to those two paragraphs."
The union representatives said they had no objection to this arrangement and gave
Anbender "a week or ten days" for such protest.
(8) On February 25, Leib sent the Union a letter stating in part as follows:
Pending a determination of the issue we raised during our contract negotia-
tions . . . we will comply with the other terms and conditions of the contract.
Upon resolution of the issues raised we will sign the contract as per determination.
(9) On March 29 Anbender received a telephone call from a union representative
and was told that since no contract had been signed a strike would be called. The
attorney urged withholding such action and requested a letter setting forth the point
of difference and the union demand upon threat of a strike. Upon receipt of such
a letter, he said, he would file a charge. The same day he wrote a letter to the Union,
incorporating his requests.
(10) A few days later Anbender received a reply to his letter from counsel for
the Respondent. In substance this letter reiterated the union position that the section
in question must be included "in any final contract between the parties," but that the
"Union is willing, however, that the contract be signed with a statement from you
that you reserve the right to challenge the validity of Section 7, paragraph 1."
(11) The same letter from the Union also stated:
It should be clarified that the Fund established by said provision is not an
Association Fund but one for the industry.
(12) As a witness, Anbender admitted that before the receipt of this letter he had
been informed, over the telephone, by the same counsel that the word "Association"
as it related to the fund was unfortunate and inaccurate, and that in fact it was not
operated by the association.
(13) Thereafter the parties signed the contract, noting in the margin alongside
the provisions in question that "This contract is signed under protest that Section 7,
Paragraphs 1 and 2 , is invalid ." Since that time the Charging Employer has con-
tributed to the fund in accordance with the provisions df that section.
C. Conclusions as to contentions of the parties
In substance, General Counsel contends that because the "promotional fund" pro-
vision may not be considered a subject embraced within the "mandatory subjects of
bargaining" as defined in Section 8(d) of the Act, quoted above, the Respondent
refused to bargain in good faith by insisting upon the inclusion of such clause in the
contract.
General Counsel cites no case precisely in point-one where a similar "promotional
fund" has been found by the Board or the courts to be outside the scope of mandatory
or compulsory bargaining-and the Trial Examiner has been unable to locate an
exact precedent.
In his brief, however, General Counsel urges that "the promotional fund" stands
in the same category as performance bonds which are beyond the scope of mandatory
bargaining, and cites N.L.R.B. v. Wooster Division of Borg-Warner Corporation,
356 U.S. 342; Local 164, Brotherhood of Painters, Decorators and Paperhangers of
America, AFL-CIO (A. D. Cheatham Painting Co.), 126 NLRB 997, 1001, and
other cases.
There being no governing precedent, so far as the Trial Examiner is aware, it
appears that resolution of the question must be, until the courts shall pass upon it,
a matter of opinion. And the Trial Examiner cannot accept the opinion voiced by
General Counsel that "It can hardly be said that the generalized reference to promot-
ing, publicizing, and advancing the industry relates to wages, hours, and other terms
and conditions of employment."
On the contrary, it seems wholly logical to hold that "promoting" the industry is
intimately relevant to "wages, hours and other terms of employment." As industry
grows, so increase the job and work opportunities. The benefit, if any, is necessarily
mutual and not exclusive. Out of his own experience, in the decade of the 1920's,
when he served as something of a mouthpiece for the promotion of New England
industry, the Trial Examiner recalls hearing the frequent complaint of employers
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that unions and their members were so selfishly concerned with adding to the pay
envelope that they failed to consider the employer's problems of marketing-that
unless business increased wages could not. And it may be considered common
knowledge in the labor-management field that for many years labor organizations
representing garment workers have developed a number of mutually beneficial
"promotions" to increase both business and wages.
That the promotional fund issue is not unique General Counsel conceded during
the hearing, and agreed that in a number of industries similar provisions are written
into contracts.
While it would not, of course, been an unfair labor practice within the meaning
of Section 8(a) (5) for the employer in this case to have refused to sign a contract
containing this provision-the Act specifically providing that concessions are not
compulsory-the Trial Examiner is unable to conclude that the Respondent violated
Section 8 (b) (3) and (1) (A) of the Act by demanding acceptance.
It will therefore be recommended that the complaint be dismissed.
RECOMMENDATION
Upon the foregoing findings of fact and conclusions of law the Trial Examiner
recommends that the complaint be dismissed in its entirety.
Retail Clerks International Association , Local No. 1439, AFL-
CIO and Spokane Labor Council and Retail Clerks Interna-
tional Association , Local No. 1439 , AFL-CIO and Milo Ames
and Ralph C . Whittle d/b/a Ames IGA Foodliner . Cases Nos.
19-OP-24 and 19-CP-30. April 2, 1962
DECISION AND ORDER
Unfair labor practice charges were filed on behalf of Ames Food-
liner on March 30, 196), and on July 3 and 7, 1961, against the Re-
spondents, Local 1439 of the Retail Clerks Union and the Spokane
Labor Council. Thereafter, on August 2, 1961, the General Counsel
of the National Labor Relations Board by the Regional Director for
the Nineteenth Region issued a consolidated complaint and notice of
hearing, alleging that the aforementioned Respondents violated Sec-
tion 8(b) (7) (B) of the Act by picketing the premises of Ames for
recognitional or organizational purposes within 12 months after a
valid election had been held pursuant to Section 9 (c) of the Act.
On August 25, 1961, all parties entered into a stipulation and a
supplemental stipulation of November 20,1961, waiving a hearing and
the taking of testimony before a Trial Examiner, the making of
findings of fact and conclusions of law by a Trial Examiner, and the
issuance of an Intermediate Report and Recommended Order. The
parties further agreed to submit the case directly to the Board for
findings of fact, conclusions of law, and an order based upon a record
consisting of the charges, as amended, the consolidated complaint, the
answers, and the stipulations, including testimony and exhibits ad-
duced at injunction proceedings in the United States District Court,
136 NLRB No. 66.